N. J. MacDonald & Sons, Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1965

155 N.L.R.B. 67 (N.L.R.B. 1965)

N. J. MAcDONALD & SONS, INC.
WE WILL give employees Larry Squires and-Robert Solomon backpay.
67
WHITE FURNITURE COMPANY,
Employer.
Dated ------------------- By------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its.
provisions , they may communicate directly with the Board' s Regional Office, 1831
Nissen Building , 310 West Fourth Street, Winston -Salem, North Carolina, Telephone-
No. 723-2911.
N. J. MacDonald & Sons, Inc. and Local 3126, United Brother-
hood of Carpenters and Joiners of America , AFL-CIO. Ca8e•
No. 1-CA-4896. October 8,1965
DECISION AND ORDER
Upon a charge duly filed on February 16, 1965, by Local 3126,.
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, herein called the Union, against N. J. MacDonald & Sons, Inc.,.
herein called Respondent, the General Counsel for the National Labor
Relations Board, by the Regional Director for Region 1, issued and
served upon the parties a complaint and notice of hearing. The com-
plaint alleges that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec
tion 8 ( a) (5) and (1) of the National Labor Relations Act, as amended..
With respect to the unfair labor practices the complaint alleges, in
substance, that on or about May 18, 1964, a majority of the employees.
of Respondent in an appropriate unit designated the Union as their
representative for the purposes of collective bargaining with Respond
ent; that, at all times since, the Union has been the collective-bargain-
ing representative of the unit employees; and that on February 16;
1965, and at all times thereafter, Respondent did refuse and continues
to refuse to bargain with the Union.
On May 27, 1965, Respondent filed its answer to the complaint
admitting certain jurisdictional and factual allegations and the refusal
to bargain with the Union, but denying that the Union represents a
majority of the unit employees and that it has committed any unfair
labor practices. Respondent's answer alleges affirmatively that on or
about January 25, 1965, it received a written statement signed' by a
majority of the employees in the unit stating that they did not want
the Union to represent them as their -bargaining agent, and that in
view of this fact Respondent refused thereafter to recognize and bar-
gain with the Union as the exclusive representative of the employees
in the unit.'
155 NLRB No. 13.
212-809-66-vol. 155-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 8, 1965, all the parties filed a joint motion to transfer this
proceeding to the Board and a stipulation of facts. The parties stipu-
lated that they waived a hearing before a Trial Examiner and the issu-
ance of a Trial Examiner's Decision, and that they desired to submit
this case for findings of fact, conclusions of law, and order directly to
the Board. They agreed that the charge, complaint, and answer,
together with the "stipulation of facts," constitued the entire record
in this case. Thereafter, on July 12, the Board issued an order grant-
ing motion, approving stipulation, and transferring proceeding to
the Board. The General Counsel and Respondent have filed briefs
with the Board.
Pursuant to the provision of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
Upon the basis of the stipulation of the parties, the briefs, and the
entire record in this case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Massachusetts corporation, maintains its principal
office and place of business in Braintree, Massachusetts, where it is
engaged in the manufacture, sale, and distribution of kitchen cabinets
and related products. Respondent annually receives at its Braintree
plant goods and materials valued in excess of $50,000, which originate
outside the Commonwealth of Massachusetts, but which Respondent
purchases from enterprises located in Massachusetts. Respondent
admits, and we find, that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. We further find
that it will effectuate the purposes of the Act to assert jurisdiction
herein.
It. THE LABOR ORGANIZATION INVOLVED
Local 3126 , United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, is a labor organization within the meaning of
Section 2 ( 5) of the Act.
M. THE APPROPRIATE UNIT
We find, in accordance with the stipulation of the parties, that the
following unit is appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
All production, maintenance, and shipping and receiving employees
of Respondent at its Braintree, Massachusetts, plant, excluding office
clerical employees, professional employees, salesmen, installers, guards,
watchmen, and supervisors as defined in the Act.
N. J. MACDONALD & SONS, INC. 69
W. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
The Union has never been certified as bargaining representative of
employees in the above-described unit. However, on or about May 18,
1964, a majority of the unit employees designated the Union as their
collective-bargaining representative, a'id on or about May 19, 1964,
the Union requested recognition and bargaining.
The Union filed unfair labor practice charges on May 15 and June 2,
4, and 12, 1964, in Case No. 1-CA-4598, and a charge and amended
charges on June 12 and 16 and July 10, 1964, in Case No. 1-CA-4646,
alleging that Respondent had violated Section 8(a) (1), (2), (3), and
(5) of the Act. On August 13, 1964, the Regional Director approved
a settlement agreement in the above cases by which Respondent agreed,
inter alia, that upon request it would bargain collectively with the
Union as the exclusive representative of employees in the appropriate
unit described above.
Thereafter, pursuant to the Union's request, bargaining commenced
on September 7, 1964. Between September 7 and January 12, 1965,
the Union and Respondent met in nine bargaining sessions. At the
Union's request, the last three sessions were held at the Massachusetts
statehouse before the State mediation board.
Each of the meetings produced agreement on various contract
items.' At the January 12 meeting, after Respondent had agreed to
pay $8 monthly into the Union's welfare fund and to a 1-year contract
term, all that remained in dispute were the amount of a wage increase
and a union-security provision. The Union had requested a union-shop
clause, and Respondent had proposed a maintenance-of-membership
clause. The Union had asked fora 10-cent-per-hour wage increase, and
Respondent had offered 5 cents. At the close of this meeting the Union
requested that Respondent submit a written contract embodying all
the terms agreed to. The Union stated that if the proposed contract
language was satisfactory, it would consider Respondent's final offers
as to wages and union security and would submit the proposal to the
employees for their approval. The next meeting was scheduled by the
State mediator for February 16, at the offices of the State mediation
board. Respondent submitted the written contract to the Union on
January 20.
On January 21, 1965, the Regional Director advised the parties by
letter that Respondent had satisfactorily complied with the provisions
of the above-mentioned settlement agreement and that the case was
closed conditioned upon the continued observance of the terms of the
settlement agreement.
1 On November 10, 1964 , the Union filed a charge alleging that Respondent "since on or
about August 13, 1964 , and at all times thereafter . had failed and refused to bar-
gain collectively in good faith ...." The charge was withdrawn on December 17, 1964.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 25, 4 days later, a petition signed by 11 of the 13 unit
employees was presented to Respondent. The petition stated : "We,
the undersigned of N. J. MacDonald & Sons do not want the United
Brotherhood of Carpenters and Joiners of America, Local 3126 to rep-
resent us as our bargaining agent." Thereafter, at the time of the next
scheduled bargaining session on February 16, Respondent informed
the Union it would not bargain further, contending, on the basis of the
above petition, that the Union no longer represented a majority of the
unit employees. Respondent continues to refuse to bargain with the
Union.
On February 24, 1965, Respondent filed a petition for an election in
the above-described unit. Pursuant to an agreement between Respond-
ent and the Union that an election be conducted on April 28, 1965,
Respondent on April 15, 1965, executed a stipulation for certification
upon consent election; the Union thereafter declined to enter into this
consent-election stipulation. The unfair labor practice charge herein
was dismissed by the Regional Director on March 25, 1965. The
Union's appeal from the Regional Director's refusal to issue a com-
plaint was sustained by the General Counsel on May 3, 1965. The rep-
resentation petition was dismissed by the Regional Director on May 10,
1965.2
B. Contention of the parties
The General Counsel contends that Respondent was, at the time of
the refusal to bargain, under a duty to bargain as the 6 months from the
execution of the settlement agreement to the refusal was not a reason-
able period of time in which to effectuate the bargaining provision of
the settlement agreement, particularly as no impasse had been reached
in the bargaining. The General Counsel urges that the fact that
Respondent might now have a good-faith doubt as to the Union's
majority is no defense in the circumstances of this case.
Respondent argues that it was justified in its refusal to bargain on
the basis of its good-faith doubt as to the Union's majority resulting
from the employees' petition as it had bargained in good faith for 6
months-a reasonable period in its view-with no agreement reached-
on a contract. Respondent contends that its bargaining obligation-
under the settlement agreement continued only until the Regional
Director determined that the bargaining provision had been complied
with.
C. Conclusions
The issue in this case is whether Respondent was obligated under
the Act to continue to bargain with the Union after it received the
employees' petition. In order to resolve this issue, we must determine
2 The General Counsel objects to the admissibility of the facts concerning the RM
petition and the charge on the ground that they are not relevant to this proceeding. The
objection is overruled.
N. J. MACDONALD &- SONS, INC. 71
whether a reasonable period of time had elapsed from the date of exe-
cution of the settlement agreement to the refusal to bargain. As the
Board stated in Poole Foundry and Machine Company, 95 NLRB 34,
36, enfd. 192 F. 2d 740 (C.A. 4), cert. denied 342 U.S. 954:
It is well settled that after the Board finds that an employer has
failed in his statutory duty to bargain with a union, and orders the
employer to bargain, such an order must be carried out for a rea-
sonable time thereafter without regard to whether or not there are
fluctuations in the majority status of the union during that
period .... Similarly, a settlement agreement containing a bar-
gaining provision, if it is to achieve its purpose, must be treated
as giving the parties thereto a reasonable time in which to conclude
a contract.
The determination of what constitutes "a reasonable time" depends
upon the particular circumstances involved. What is reasonable in one
case may not be so in another. Thus, the Board has held that where
the parties had reached a bargaining impasse, and 2 months had elapsed
from the time of the execution of the settlement agreement to the
refusal to bargain, this was "a reasonable time." 3 But, where the par-
ties had not reached an impasse in negotiations, 6 months was held not
to be "a reasonable time." d
Here, it does not appear that the parties had ever before negotiated
a collective-bargaining contract. The Union and Respondent met in
nine bargaining sessions over a 6-month period after the execution of
the settlement agreement during which progress was made in reaching
an agreement. At the last bargaining session preceding the refusal to
bargain, all that remained in dispute were the amount of wage increase
and a union-security provision. No indication was given at this or at
any other time that an impasse had been reached in the negotiations.
Indeed, it appears that such substantial progress had been made at the
time of the refusal to bargain that the parties had reduced their agree-
ment to writing, and the Union had announced that it would submit
Respondent's offers on the wage increase and union security, the last
issues in dispute, to the employees for their approval. And the parties
had agreed to meet again. To say, as Respondent contends, that the
6 months during which it bargained was a reasonable period would be
to ignore completely the fruitful negotiations during those months. It
would ignore, also, the fact that these were negotiations for an initial
contract which usually involve special problems, such as in the formu-
lation of contract language, which are not present if a bargaining rela-
8 The Daily Press, Incorporated, 112 NLRB 1434, 1441-1442.
+H. E. Fletcher Co., 131 NLRB 474; Consolidated Textile Company, Inc. (Ella Divi-
sion ), 106 NLRB 580. Accord: Stant Lithograph, Inc., 131 NLRB 7, 8, affil. per curtain
297 F. 2d 782 (C.A.D.C.) ; Frank Becker Towing Company Detroit Marine Towing L O,L,
Company, 151 NLRB 466.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionship has been established over a peiiod of years and one or more
contracts have been previously executed. Accordingly, we find that a
reasonable time had not elapsed after the effective date of the settle-
ment agreement when Respondent refused to bargain with the Union.
Respondent relies upon the Regional Director's letter of January 21
to the effect that Respondent had complied with the provisions of the
settlement agreement and that the case was closed. Respondent argues
that the letter demonstrates that the bargaining provision in the settle-
ment agreement had no further effect after January 21, 1965. We do
not agree. We note that the Regional Director conditioned the closing
of the case upon the continued observance of the terms of the settlement
agreement. Thus, this letter did no more than find that as of Janu-
ary 21 Respondent was bargaining in good faith with the Union, a
finding with which we do not disagree. The letter clearly indicated,
however, that Respondent was under a continuing duty to observe the
bargaining provision of the settlement agreement after January 21.6
In reaching the result herein, we have considered the petition sub-
mitted by the unit employees indicating that they no longer desired to
be represented by the Union. We believe, nevertheless, that it would
not be conductive to industrial peace and stable labor relations to allow
an employer to rely on such employee dissatisfaction in refusing to
bargain with a union which is the employees' statutory bargaining rep-
resentative, at a time when an election among the employees is not war-
ranted.6 As the Fourth Circuit Court of Appeals has said in the Poole
case :
An entire structure or course of future labor relationships may
well be bottomed upon the binding effect of a status fixed by the
terms of a settlement agreement. If a settlement agreement is to
have real force, it would seem that a reasonable time must be
afforded in which a status fixed by the agreement is to operate.
Otherwise, settlement agreements might indeed have little practi-
cal effect as an amicable and judicious means to expeditious dis-
posal of disputes arising under the terms of the Act.7
Accordingly, we find that on February 16, 1965, Respondent refused,
and continues to refuse, to bargain with the Union in violation of Sec-
tion 8(a) (5) and (1) of the Act.
5 H. E. Fletcher Co , supra, 483-484. Armco Drainage & Metal Products, Inc., 116
NLRB 1260, and Ruffalo'8 Trucking Service, Inc., 114 NLRB 1549, cited by Respondent,
are distinguishable on their facts. In Armco, the Regional Director determined that the
company had "fully complied," and then only after the union had informed the Regional
Director the company was "in compliance" with the Board's Order. The Regional Director
in Buffalo's closed the case only after he had found that the union's conduct during the
period of bargaining evidenced a lack of good faith in consummating a contract
6 See Ray Brooks v. N.L.R.B., 348 U.S. 96, 103
7 Poole Foundry and Machine Company v. N.L.R.B., 192 F. 2d 740, 73 (C.A. 4), cert.
denied 842 U.S. 954.
N. J. MAcDONALD & SONS, INC. 73
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The acts of Respondent set forth in section IV, above, occurring in
connection with its operations described in section I, above, have a
close, intimate, and substantial relation to trade, traffic11 and commerce
among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (5) and (1) of the Act, we
shall order that it cease and desist therefrom and, upon request, bargain
collectively with the Union as the exclusive representative of all em-
ployees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. N. J. MacDonald & Sons, Inc., is engaged. in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 3126, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production, maintenance, and shipping and receiving employ-
ees of Respondent at its Braintree plant, excluding office clerical
employees, professional employees, salesmen, installers, guards, watch-
men, and supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. The Union is, and at all times since May 18, 1964, has been, the
exclusive representative of the employees in the appropriate unit
within the meaning of Section 9 (a) of the Act.
5. By refusing to recognize and bargain with the Union on and after
February 16, 1965, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (5) of the Act.
6. By the acts described in paragraph 5, above, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
74 DECISIONS OF NATIONAIL LABOR RELATIONS BOARD
Respondent, N. J. MacDonald & Sons, Inc., Braintree, Massachusetts,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to recognize and bargain with Local 3126, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the
exclusive representative of its employees in the above-described appro-
priate unit.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with the above-named Union
as the exclusive bargaining representative of the employees in the
appropriate unit, with respect to rates of pay, wages, hours of work,
or other terms and conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at its Braintree, Massachusetts, plant, copies of the
attached notice marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for Region 1, shall, after being duly
signed by the Company's representative, be posted by the Company
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Decision and Order, what steps have been
taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Local 3126,
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, as the exclusive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT in any like or related manner interfere with-,
restrain, or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
BIG BEAR STORES COMPANY 75
WE WILL, upon request, bargain With the above-named Union
as the exclusive, representative of all employees in the bargaining
unit described below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement.
The bargaining unit is:
All production, maintenance, and shipping and receiving
employees of N. J. MacDonald & Sons, Inc., at its Braintree
plant, excluding office clerical employees, professional em-
ployees, salesmen, installers, guards, watchmen, and super-
visors as defined in the Act.
All of our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization, except as
that right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
N. J. MACDONALD & SONS, INC.,
Employer.
Dated---------------- By------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, Boston Five Cents Saving Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 223-3358. if they have any ques-
tions concerning this notice or compliance with its provisions.
Big Bear Stores Company and Food Store Employees Union
Local #347, Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO. Cases Nos. 9-CA-3273 and
9-CA-3365. October 8, 1965
DECISION AND ORDER
On June 22, 1965, Trial Examiner Thomas A. Ricci issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent has
engaged in and is engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. He also
155 NLRB No. 15.