O'Malley Glass & Millwork Co.

National Labor Relations Board - Board Decisions

Feb 23, 1972

195 N.L.R.B. 548 (N.L.R.B. 1972)

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Malley Glass & Millwork Co. and International
Brotherhood of Painters and Allied Trades, AFL-
CIO, Glaziers & Glassworkers Local No. 1610. Case
28-CA-2234
February 23, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
On November 17, 1971, Trial Examiner Irving
Rogosin issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief, the General Counsel filed cross-excep-
tions and a- supporting brief, and the Respondent filed
an answer to the General Counsel's cross-exceptions
with a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent herewith.
The Trial Examiner found that Respondent's failure
to apply the terms and conditions of the contract, nego-
tiated through the Arizona Multi-Employer Bargain-
ing Aggregate and the Union, to its Yuma, Arizona,
operations violated Section 8(a)(5) and (1) of the Act.
The facts show that Respondent operates four places
of business in Arizona, at Phoenix, Tucson, Glendale,
and Yuma, all of which are engaged in the distribution
and sale of glass and related services. In 1965, the
Union negotiated separate collective-bargaining agree-
ments with individual employers, including Respond-
ent. All four of Respondent's locations were covered by
a single contract. In the fall of 1969 or early 1970, the
employer association referred to above, known as
AMEBA, was formed for the purpose of representing
in collective bargaining the principal glass employers in
Arizona. Respondent was a member. On January 14,
1970, AMEBA sent a letter to the Union which stated
that the Association desired to modify the soon to ex-
pire single employer 1965 bargaining agreements.
About June 8, 1970, agreement was reached, the con-
tract was reduced to writing, and AMEBA sent copies
to the parties. Although the working copies of the draft
were silent on the coverage of the agreement, the last
page of the proposed contract, immediately below the
signature lines, read "Members of Arizona Multi-
Employer Bargaining Aggregate and their locations
covered by this Agreement," and was followed by a
two-column list of locations, one for Phoenix busi-
195 NLRB No.110
nesses, the other for Tuscon. Respondent's Phoenix
and Tuscon locations were included in the list, but no
reference was made to its Glendale and Yuma facilities.
Although disputed at the hearing, the credited evidence
established that the final contract was executed on June
26, 1970, in this form.
The Trial Examiner found that as the Union signed
a contract which on its face covered only two of Re-
spondent's locations, it must be deemed bound by that
agreement. However, since the undisputed facts show
that coverage of the contract was not a subject of
negotiations, the Trial Examiner further, concluded
that Respondent, by refusing to apply the contract to
its Yuma location,' as,it had in the past, unilaterally
attempted to modify the appropriate unit in derogation
of Section 8(a)(5) of the Act. We disagree with this
latter finding.
In our opinion, as there is no fraud or misrepresenta-
tion alleged, the Union must be bound by the plain and
unequivocal terms of the agreement. As noted, the facts
show that the Union received the proposed contract
(containing the list) about 2 weeks before it was ex-
ecuted. The Union claims that during this period it
decided not to sign the contract unless, inter alia, the
list of employers and locations was deleted, that it so
advised the Respondent, and that the contract was ex-
ecuted as so modified. However, the Trial Examiner
rejected the Union's contention and determined that
the credited evidence' established that the list was in-
deed part of the executed agreement.Therefore, as the
terms of the contract are controlling, we conclude that
the Union, by signing the contract, agreed that it did
not apply to Respondent's Yuma location. Accord-
ingly, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
' As Respondent has applied the contract to its Glendale facility, it was
agreed at the hearing that the only issue was with regard to Yuma
1 The General Counsel has excepted to certain credibility findings made
by the Trial Examiner It is the Board's established policy not to overrule
a Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the resolu-
tions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd.
188 F.2d 362 (C A. 3) We have carefully examined the record and find no
basis for reversing his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Trial Examiner: The complaint, issued
February 26, 1971, alleges that Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1),
(5) and (d), and Section 2(6) and (7) of the Act.
O'MALLEY GLASS & MILLWORK CO.
Specifically, the complaint alleges that, at all times material
since June 15, 1970, Respondent has refused, after demand,
to recognize and bargain with the Union as the exclusive
bargaining representative of, Respondent's employees in ap-
propriate unit, by specified acts and conduct, including: (a)
an attempt to revoke unilaterally its designation of a multiem-
ployer association as its bargaining' representative with the
Union, as the exclusive bargaining agent of Respondent's
employees, at its Yuma an d Glendale, Arizona, places of
business; (b) repudiation of a collective-bargaining agreement
entered into between the association and the Union; (c)
refusal to honor and abide by the terms of said collective-
bargaining agreement, as it applies to Respondent's em-
ployees at its Yuma and Glendale, Arizona, places of busi-
ness; and (d) unilateral alteration of rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment of its employees at its Yuma and Glendale, Arizona,
places of business, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (d), and interfering
with, restraining, and coercing its employees within the
meaning, of Section 8(a)(1) of the Act.'
Respondent's answer admits the procedural and jurisdic-
tional allegations of the complaint and the execution of the
collective-bargaining agreement between the association and
the Union, but denies that Respondent's offices or plants in
Glendale and Yuma, Arizona,, were members of the associa-
tion or that those offices or plant were included or intended
to be included in the collective-bargaining agreement, and
denies either for" lack of sufficient information or generally,
the remaining allegations of the complaint.'
Hearing was held before the duly designated Trial Exam-
iner on July 13, 1971, at Phoenix, Arizona. All parties ap-
peared and were represented by counsel or a union represent-
ative, were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce oral and documen-
tary evidence relevant and material to the issues, to argue
orally and file briefs and proposed findings of fact and conclu-
sions of law. The parties waived oral argument. Pursuant to
an extension duly granted, the General Counsel filed a brief
on August 16; Respondent on August 23, 1971, including
proposed findings of fact. To the extent they are consistent
with the findings of fact and conclusions of law hereinafter
made, they are granted; but otherwise denied.
Upon the entire record in this case, the uncontradicted
testimony or a reconciliation of conflicts in the testimony and,
based upon the appearance and demeanor of the witnesses,
and the briefs of the parties, which have been carefully con-
sidered, the Trial Examiner makes the following:
' Designations herein are as follows: the General Counsel, unless other-
wise stated- his representatives at the hearing; O'Malley Glass & Millwork
Co : Respondent, the Company or the Employer; International Bortherhood
of Painters and Allied Trades, AFL-CIO, Glaziers & Glassworkers Local
No 1610: the Union, the Charging Party or Local 1610; the National Labor
Relations Act, as amended (61 Star. 136, 73 Stat 519, 29 U.S C. Sec. 151,
et seq.): the Act. The charge was filed and served on December 15, 1970
0 At the outset of the hearing, Respondent filed an amended answer, in
effect, admitting the substantive allegations of the complaint, except as they
relate to Respondent's Glendale and Yuma places of business Although
there was no objection to the filing of the amended answer, the record does
not reflect that the same was allowed. The amended answer was allowed,
and the record is hereby corrected accordingly.
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
549
The complaint alleges, Respondent's answer admits, and it
is hereby found, that, at all times material herein, O'Malley
Glass & Millwork Co., Respondent herein, has been a corpo-
ration duly organized under the laws of the State of Arizona,
with its principal office and place of business in Phoenix,
Arizona, and additional places of business in Tucson, Yuma,
and Glendale, Arizona, engaged in the business of distribut-
ing and selling glass, and performing glazing and related
services.
During the 12-month period preceding issuance of the
complaint, a representative period, Respondent has pur-
chased and had delivered to its places of business, glass
products, tools, parts, and other related products, valued in
excess of $50,000, directly from states outside the State of
Arizona. During the corresponding period, Respondent has
made sales of products and services, valued in excess of $50,-
000, to firms within the State of Arizona, making purchases
directly from states outside the State of Arizona, valued in
excess of $50,000.
It is, therefore, found that Respondent is, and at all times
material herein has been, an employer engaged in commerce
and in operations affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act, and the jurisdictional
standards of the Board.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Painters and Allied Trades,
AFL-CIO, Glaziers & Glassworkers Local No. 1610, herein
called the Union or the Charging Party, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether, by the execution of the collective-bargaining
agreement, dated June 1, 1970, between Arizona Multi-
Employer Bargaining Aggregate, herein called AMEBA, an
employer association of which Respondent was a member,
the parties included or intended to include Respondent's op-
erations at Glendale and Yuma, Arizona.
2. Whether Respondent's failure or refusal to apply the
terms and conditions of the collective-bargaining agreement
to its operations at Glendale'and Yuma, Arizona, constituted
a refusal to bargain within the meaning of Section 8(a)(5) and
8(d) of the Act.
B. Background
Respondent maintains and operates four places of business
in the State of Arizona, namely, in Phoenix, Tucson, Glen-
dale, and Yuma. Its principal place of business is located in .
Phoenix, where it maintains a warehouse and conducts a
wholesale glass operation, with emphasis on building con-
struction glazing, commonly referred to as "contract glaz-
ing," and employs 13 employees. Its operation, in Tucson,
about 124 miles away, is,substantially the same as the one in
Phoenix, except on a somewhat smaller scale. The Glendale
operation, located about 10 miles from Phoenix, is essentially
a retail glass division, performing virtually no contract work,
and employing three employees. The Yuma branch, located
about 185 miles from Phoenix, is Respondent's smallest, and
is also basically a retail operation, engaged in supplying glass
for automobile windshields, residential window panes. Like
the Glendale operation, it employs three employees. Re-
spondent has performed a relatively small amount of con-
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struction work at its Yuma branch, estimating on such jobs
being done at Phoenix, and actually performed by glaziers out
of that operation. Thomas E. O'Malley is president of the
Company. Raymond Wells is director of labor relations for
Respondent's entire operation with headquarters at Phoenix.
Each of the branches is under the supervision of a separate
manager . The Yuma operation was first established in 1955
or 1956. There is a central accounting office at Phoenix cover-
ing all Respondent's operations.
In 1965, the Union negotiated collective-bargaining agree-
ments with individual employers, including Respondent, en-
gaged in the glass and glazing industry, in the State of
Arizona. Raymond Wells negotiated on behalf of Respondent
and Business Representative Milton F. "Pete" Baker, on be-
half of the Union, and each signed the contract on behalf of
his respective principal. During the negotiations, Baker asked
Wells whether he desired to sign separate contracts for each
of Respondent's branches, and Wells told him that that
would not be necessary-that a single contract would cover
all the branches.' Respondent complied with the wage scales
and other terms and conditions of the contract, which was
applicable to all four branches, and made no protest or objec-
tion to the application of the contract to the Glendale and
Yuma branches. The contract expired on June 1, 1970.
C. The Current Collective-Bargaining Agreement
In the fall of 1969 or early in 1970, an employer association
was organized under the name of Arizona Multi-Employer
Bargaining Aggregate, commonly referred to as AMEBA, for
the purpose of acting as collective-bargaining representative
of the principal employers in the industry in Arizona. Frank
Kadish, president of Standard Glass Company, was elected
president of the association, and has continued to serve in
that capacity. As a result of negotiations between the nego-
tiating committee of AMEBA and the Union, agreement was
reached, and a contract, dated June 1, 1970, was executed on
June 26, effective from June 1, 1970, to December 31, 1975,
automatically renewable on any anniversary date, in the ab-
sence of 60-days notice prior to the anniversary date. The
contract was executed by Frank Kadish, president, and R. L.
Roeser, secretary, on behalf of AMEBA, and M. L. Baker,
business representative, on behalf of the Union. Subjoined to
the contract, and below the signatures, appeared the legend,
"Members of Arizona Multi-Employer Bargaining Aggre-
gate and their locations covered, by this Agreement," under-
neath which, arranged in-two columns, headed PHOENIX
and TUCSON, were lists of names of employers, consisting
of six each. Included in the list of employers at Phoenix, was
O'Malley Glass & Millwork Co:, 1655 West Jackson, Phoe-
nix, Arizona, and the same employer, at 210 Stevens Avenue,
Tucson, Arizona.
Respondent contends that the omission of the name of the
Company at its Glendale and Yuma branches establishes the
intention of the parties that those two branches were not to
be covered by the contract.
The General Counsel and the Union contest this, maintain-
ing that before the contract was finally executed, the Union
had insisted that the statement regarding coverage under the
contract, as well as the list of employers appearing thereun-
der, was to' be deleted.
' Wells did not testify and the findings are based on Baker's credible and
uncontradicted testimony According to Baker, the contract may have been
signed under the name of Southwestern Glass & Millwork Company, Re-
spondent's predecessor
In support of their contention, Business Representative
Baker testified that, after conferring with International Rep-
resentative John Hayes, he was instructed not to sign the
contract unless the first page of the contract was corrected to
omit the date and reference to AMEBA, since the same con-
tract was also to be applicable to another employer associa-
tion, which had subsequently been formed, known as AGEA
(the actual name of this association is not revealed by the
record); the number of representatives on joint conference
committee, provided for in the contract, be increased from
three to five, to permit AGEA two representatives on the
committee; and the names of the employer-members listed at
the end of the contract be deleted.
The copy of the contract introduced in evidence by the
General Counsel, which bears the original signatures of the
parties, contains certain blue-pencil notations indicating the
nature of these corrections, as testified to by Baker, but Re-
spondent's original copy, also received in evidence, is devoid
of any such blue-pencil changes. According to Baker's tes-
timony, all the blue-pencil notations appearing on the
Union's copy of the contract were made by David Shelton,
manager of Pittsburgh Glass Company, who subsequently
replaced Kadish as chairman of the negotiating committee,
and had concurred in the changes. Baker was unable to ex-
plain why AMEBA's copy of the contract had not been con-
formed to the Union's copy, except to say that he had "flat
goofed."
The events preceding negotiations for the current contract
may shed some light on the intention of the parties with
regard to coverage. At the first meeting between the union
representative and AMEBA's negotiating committee, Kad-
ish, chairman of the committee, presented Baker with a letter,
furnished in response to a request from International Repre-
sentative Hayes. The letter, on stationery of AMEBA, dated
the same day, and addressed to the Union, stated AMEBA's
desire for modification of the agreement, dated August 23,
1965, and listed the names of the members of the association
employing glaziers who were members of the Union. Among
the 12 employees in Phoenix and Tucson, was listed O'Malley
Glass & Millwork Co., followed by its places of business at
Phoenix, Tucson, Yuma, and Glendale. A meeting was re-
quested for Wednesday, January 21.
At the second meeting between the parties, held on Febru-
ary 19, Kadish handed Baker an amended list of members of
AMEBA, containing the names of nine members, including
O'Malley Glass & Millwork Co., again followed by its places
of business at Phoenix, Tucson, Yuma, and Glendale.'
On April 21, at a, meeting at O'Malley's headquarters,
Shelton, who had replaced Kadish as chairman of AMEBA's
negotiating committee, submitted to the Union a complete
draft of an agreement as its proposals. Only AMEBA was
named in the preamble of this draft and the contemplated
signatories were indicated as follows: FOR THE EM-
PLOYER: FOR THE UNION: Unlike the contract which
was ultimately executed, no list of employer members of
AMEBA was appended below the place for signature.
Kadish testified that, during the course of the bargaining negotiations,
AMEBA discovered that some of the employers, who had been members
of that association, were engaged to a very small extent in the type of work
performed by the others, namely "contract-type" work, and were requested
to resign from AMEBA, and that group later organized as AGEA. The list
of the remaining members of AMEBA is the same as those appearing at the
end of Respondent's executed copy of the collective-bargaining agreement.
In the agreement, Respondent is named twice, once under the list of em-
ployers at Phoenix, and once under the list of those at Tucson, which
accounts for the discrepancy in the actual number of members
O'MALLEY GLASS & MILLWORK CO. 551
The copy of the proposed agreement, received in evidence,
was used by International Representative Hayes as his work-
ing copy, and contains his notations indicating approval or
disapproval of various clauses. There is nothing in any of
these notations or, for that matter , in the record , to establish
that the subject, of the constituency of AMEBA 's membership
or the inclusion or omission of a list of members was dis-
cussed. The General Counsel contends , however, that the
absence of the list of members from the proposed contract is
an indication that, "as of April 21, there was no contempla-
tion by any of the parties as (sic ) listing any of the companies
or locations." According to Business Representative Baker,
at no time during negotiations after he received this contract
proposal was there any discussion between the parties as to
which employers were members of AMEBA.
In about mid-June, agreement was reached, and the con-
tract reduced to writing . After receiving a copy from Shelton,
Baker prepared a copy, which he transmitted to International
Representative Hayes, with the consequences which have al-
ready been detailed.
In this posture of the case , the General Counsel contends
that the emendations , as indicated by the blue-pencil nota-
tions on the Union 's copy of the contract , were not only
agreed to by Shelton but actually made by him on the copy
introduced in evidence by the General Counsel : Respondent
contends, however , that the notations were made to facilitate
the use of that contract form in completing its contract
negotiations with AGEA , the other association consisting of
smaller companies engaged, in less extensive glazing opera-
tions, such as replacement of automobile windshields and
residential window panes. Baker stated that the reason the
Union desired to have the specific portions of the proposed
draft, including the listing of the employer -members, elimi-
nated, was that International Representative Hayes advised
him that they covered matters which had never been nego-
tiated . Considering , that, preliminary to negotiations,
AMEBA had , at the Union's request , submitted a list of its
members, and that the association later submitted an
amended list, the Union 's contention is difficult to accept.
Despite the fact that Shelton, who is said to have concurred
in the changes in the contract proposals , did not testify, Re-
spondent 's position, that the blue-pencil notations were made
as an accommodation to the Union , so that it could use the
same contract form in its negotiations with AGEA, com-
mends itself as more plausible. The fact that one of the modifi-
cations sought by the Union entailed increasing the number
of representatives on the joint conference committee from
three to five, to satisfy AGEA's request for two members on
the committee , lends support to Respondent 's position.
Moreover, it is difficult to believe that Business Representa-
tive Baker would have signed the counterparts of the contract
with AMEBA without first ascertaining that all copies of the
contract had been conformed to the Union 's purported copy.
Robert L. Roeser , Respondent's Phoenix contract manager,
and secretary of AMEBA, who signed the contract in his
official capacity , testified positively and categorically that the
list of employer -members of AMEBA and their locations was
set forth below the place for signatures at the time he signed
the contract and that there were no blue-pencil notations on
the agreement at the time he signed it.
According to Kadish , president of AMEBA , the final copy
of the contract was xeroxed , the copies distributed to the
representatives of the parties to make certain that all copies
were exactly alike, and then passed around the table for signa-
ture. There were, according to him, no blue-pencil markings
on any of the copies submitted for signature . During the
negotiations , changes were made and when agreement was
reached , final copies were prepared and submitted to the
officers of the association . It was never contemplated that the
individual employer-members of AMEBA would sign the
contract and, as Kadish testified , under the association's
bylaws, members were bound by the contract signed by
AMEBA . Employer-members undertaking to sign .the con-
tract as individuals were subject to a $10,000 penalty. Subse-
quent modifications of the contract , such as health and wel-
fare and pension plans, were handled by written amendment
to the contract , signed by the parties , and executed on July
22.
The preponderance of the credible evidence establishes that
the collective-bargaining agreement entered into between the
parties, dated June 1, 1970, was, in fact, the contract entered
in evidence by Respondent, to which the names of the em-
ployer-members was appended below the signatures of the
officers of AMEBA and the representative of the Union, and
it is so found. The Union 's insistence that the list of employer-
members had been deleted from the contract prior to its
execution appears to be rooted in a desire to be relieved of the
consequences of possible constructive notice that Respondent
did not intend to be bound by the contract, insofar as its
Glendale and Yuma branches were concerned . To this extent,
the Union may have been the subconscious victim of wishful
thinking , when its representative testified regarding the blue-
pencil corrections on the Union 's copy of the contract. It is
not at all unlikely that these notations were actually made on
the Union 's working draft . In any case, it has been found that
the contract, as executed in final form , did not contain any
of these notations but was, in fact, in the form represented by
AMEBA's copy of the contract.
It is difficult to believe that Baker would have been so
remiss as to sign the final draft of the contract without first
having ascertained that it conformed in all material respects
to what he claimed to be the agreement reached . Whether
because of oversight or some other reason, the fact is that the
contract which he actually signed did not contain the correc-
tions to which Shelton , as chairman of AMEBA's negotiating
committee , had allegedly agreed. Having signed the contract,
the Union must be deemed bound by it.'
Proceeding from this premise, it is to be assumed that the
Union should have been aware that Respondent was main-
taining t̀hat the contract did not apply to its Glendale and
Yuma branches . The issue then becomes whether, by execut-
ing ' the 'contract, which omitted from its coverage these-two
branches , the Union must be deemed to have acquiesced in
Respondent 's position or to have become estopped from as-
serting that the contract was applicable to all four branches.
The record is devoid of any evidence that this subject was ever
discussed between Respondent's bargaining representative
and the Union at any stage of the negotiations. According to
Ka'dish , Respondent's Glendale and Yuma locations were
omitted from among the list of employers "because the basic
work done down in those two areas is not the same as the
S "As a general principle , one who accepts a written contract is conclu-
sively presumed to know its contents and to assent to them , in the absence
of fraud, misrepresentation , or other wrongful act by another contracting
party Thus, ignorance of the contents of a contract expressed in a written
instrument does not ordinarily affect the liability of one who signs it or who
accepts it otherwise than by signing it If a man acts negligently and in such
a way as to justify others in supposing that the writing is assented to by him,
he will be bound both at law and in equity , even though he supposes that
the writing is an instrument of an entirely different character
. It is -the duty of every contracting party to learn and know its
contents before he signs and delivers it , and, if the contract is plain and
unequivocal in its terms , he is ordinarily bound thereby ... " 17 Am Jur
2d § 149. There is no contention that the other contracting party here
engaged in fraud, misrepresentation , or other wrongful conduct to in-
duce the Union to execute the contract
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work basically done by the AMEBA members. Yuma is in a
rural area and they have no contracts to any great degree and
Glendale does auto glass work which is closer-to the AGEA
members... " This argument would have more relevance if
the issue were whether a single unit of Respondent's em-
ployees at its four branches or separate units of each branch,
were appropriate.
The complaint, however alleges that all employees of em-
ployer-members of AMEBA (in the classifications set forth in
the current collective-bargaining agreement), with the cus-
tomary exclusions, constitute an appropriate unit for the pur-
poses of collective bargaining. In its answer, Respondent de-
nies these allegations on the ground of lack of sufficient
information as to the truth of the allegations. Respondent's
amended answer, however, filed at the opening of the hearing,
denies that Respondent's offices or plants in Glendale and
Yuma were members of AMEBA or that said offices or plants
were intended to be or were included in the collective-bar-
gaining agreement, but admits the allegations regarding the
appropriate unit, "as said allegations are applied to the em-
ployees employed by employer members of AMEBA, said
employer members being set forth in the current, Collective
Bargaining Agreement."
Although the previous collective-bargaining agreement be-
tween Respondent and the Union, which antedated the orga-
nization of AMEBA, dated August 23, 1965, was not intro-
duced in evidence, Union Representative Baker's
uncontroverted testimony, indicates, that that contract cov-
ered all four of Respondent's operations, specifically includ-
ing Glendale and Yuma. In 1964, according to Baker, his
understanding with Respondent's Personnel Manager Wells
was that Glendale and Yuma were covered by the contract.
There was, according to Baker, never any discussion during
the 1970 negotiations as to whether Glendale and Yuma
would or would not be covered under the AMEBA contract
with the Union, and it was not until October, 1970, when
some of the glaziers in the Yuma branch reported to him that
they were not being paid union scale, that he learned that
Respondent maintained that the contract did not apply to the
Yuma branch. Baker, accompanied by his assistant, there-
upon went to Yuma to investigate, and several weeks later
returned with a member of the Union's executive board. In
discussing the matter with Kenneth Breddemeyer, manager
of Respondent's Yuma branch, a union member, they were
informed that Wells had instructed Breddemeyer not to pay
union scale or hire union members. Immediately upon his
return from Yuma, Baker, accompanied by International
Reprresentative Hayes, called on Thomas E. O'Malley, presi-
dent of the Company, and Wells, and told them that the
Company was not living up to its agreement. O'Malley in-
formed the union representatives that there were only three
men involved at Yuma, that he was paying them above scale,
and that he had no intention of applying the contract to the
Yuma employees. According to Baker's uncontradicted tes-
timony, O'Malley gave as his reason mere "stubbornness."
With regard to the Glendale operation, the Union conceded
at the hearing that Respondent has always adhered to the
contract since 1962, has always paid union scale and fringe
benefits, and has "lived up to the union agreement."
The record leaves little doubt that at some time during the
negotiations, Respondent concluded , for whatever reasons,
that it no longer wished to have the Yuma branch covered by
the agreement. Instead of notifying the Union to that effect,
and affording it an opportunity to bargain about the subject,
Respondent unilaterally, and without consultation with the
Union, decided to withdraw the Glendale and Yuma
branches from the application of the contract. Nevertheless,
despite the fact that the list' of employers, appended to the
contract, showed the elimination of both the Glendale and
Yuma branches, according to Baker's .uncontroverted tes-
timony, Respondent continued to be bound by the contract
for its Glendale operation.
Whatever merit there may have been to Respondent's con-
tention that, because of the nature and size of the Yuma
operation, and its distance from-Respondent's principal head-
quarters.at Phoenix, it should be excluded from the unit of
Respondent's employees at its other operations, the, fact re-
mains that in the 1965 contract between Respondent and the
Union, the parties had bargained for a single unit of em-
ployees covering Respondent's principal,place of business at
Phoenix and its three branches. Since the Union's majority
status has never been in dispute, and, first, the Company, and,
later, AMEBA, had recognized the Union as exclusive bar-
gaining agent of the unit employees of all its members, the
Union was entitled to have been notified, and afforded an
opportunity to bargain on the issue of whether the Yuma
branch should no longer be included in.the contract coverage
of Respondent's employees.
Moreover, there was no contention or showing that the
nature of the operation at Yuma had changed materiallyfrom
the time the Union was recognized as representative of Re-
spondent's employees at all four operations. What is more,
apart from the proximity of the Glendale branch to Respond-
ent's headquarters in Phoenix, there was no appreciable diff-
erence between the operation at Yuma and that in Glendale,
which Respondent regarded as. covered by the contract,
The issue here does not involve a situation where an em-
ployer-member of a multiemployer association seeks to with-
draw from the group but rather where the member is attempt-
ing unilaterally,, and without prior consultation with the
Union, to alter the composition of the appropriate unit,
which, as has been found, for the reasons previously stated,
it was not privileged to do.
On the basis of the foregoing, and upon the entire record,
it is hereby found that Respondent attempted to' modify the
appropriate unit of employees, including Respondent's em-
ployees at the Yuma operation, of employer-members of
AMEBA, by unilaterally, and without prior notification to
the Union, and an opportunity to bargain on the matter, by
eliminating the Yuma branch from the application of the
contract. By so doing, and by failing and refusing, since June
15, 1970, to recognize and bargain with the Union as exclu-
sive bargaining representative of Respondent's employees in
the appropriate unit, including its employees at the Yuma
branch, and by its unilateral attempt to revoke its designation
of AMEBA as bargaining representative of Respondent; and
the designation of the Union as' exclusive bargaining repre-
sentative of Respondent's employees at its Yuma, Arizona,
place of business, and by repudiating, and refusing to apply
the collective-bargaining agreement to Respondent's em-
ployees at said place of business, Respondent has 'failed and
refused to bargain with the Union, within the meaning of
Section' 8(a)(5), and (d), thereby interfering with, restraining,
and coercing its employees in the exercise of rights guaran-
teed in Section 7, and engaging in unfair labor practices
within the meaning of Section 8(a)(1)'of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section , III, above,
occurring in connection with its operations, described in sec-
tion I, above, have a close , intimate, and substantial relation
to. trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
O'MALLEY GLASS & MILLWORK CO. 553
Having found that Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing to adhere to and abide by the
terms of a multiemployer collective-bargaining agreement
with the Union, to which it -was a party, insofar as it applied
to Respondent's branch at Yuma, Arizona, it will be recom-
mended that Respondent be ordered to cease and desist there-
from, and take certain affirmative action designed to effectu-
ate the policies of the Act.
It has been found that Respondent has failed and refused
to bargain in good faith with the Union as majority represent-
ative of the employees in an appropriate unit, on behalf of its
employees at its Yuma, Arizona, branch. It will, therefore, be
recommended that' Respondent be required to bargain in
good faith with the Union, and give retroactive effect to the
June 1, 1970, collective-bargaining agreement between
AMEBA and the Union, with regard to the Yuma operation,
for the duration of said agreement.'
It will further be recommended that Respondent make
whole its unit employees at the Yuma, Arizona, branch, for
any loss of earnings they may have sustained by reason of
Respondent's refusal to adhere to and abide by the terms of
the multiemployer agreement, by payment to each of said
employees of the difference between the amount of wages they
were paid from June 1, 1970, and the amount they would
have been entitled to be paid under the wage provisions of
said collective-bargaining -agreement, with interest at 6 per-
cent per annum, in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716. It will also be recommended that Re-
spondent make such contributions on behalf of said em-
ployees for health and welfare, pension or other fringe
benefits as may be required under the terms of said multiem-
ployer agreement. -
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. O'Malley Glass & Millwork Co ., Respondent herein, is,
and at all times material herein has been , an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
2. International Brotherhood of Painters and Allied
Trades, AFL-CIO, Glaziers & Glassworkers Local No.
1610, the Union herein , is, and at all times material herein has
6 In view of the Union's concession that Respondent has, in fact, applied
coverage under the collective-bargaining agreement to the Glendale opera-
tion, no reference to this branch has been made in the remedial order It is
to be expressly understood, however, that the Glendale branch is to be
deemed covered by the multiemployer agreement
been, a,labor organization within the meaning of Section 2(5)
of the Act.
3. All employees employed by employer-members of
Arizona Multi-Employer Bargaining Aggregate (AMEBA
herein), in the classifications set forth in the collective-bar-
gaining agreement between AMEBA and the Union, dated
June 1, 1970, excluding all other employees, office clerical
employees; guards, watchmen, and supervisors, as defined in
the Act, constitute, and at all times material herein have
constituted, a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9(b) of the Act.
4. At all times material herein, including June 1, 1970, and
since, a majority of the employees of employer-members of
AMEBA, including Respondent, and its branch at Yuma,
Arizona, in the unit described above, has designated the
Union as their exclusive representative of the employees in
the appropriate unit found above, for the purposes of collec-
tive bargaining with AMEBA and its members, including
Respondent, at its places of business, including Yuma,
Arizona.
5. By unilaterally, and without prior notice to and consul-
tation with the Union, effecting changes in the composition
of the appropriate unit, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and 8(d)
of the Act.
6. By refusing to adhere to and abide by the terms of the
multiemployer agreement between AMEBA and the Union,
to which it was a party, insofar as it applied to Respondent's
branch at Yuma, Arizona, Respondent has failed and refused
to bargain with the Union, as exclusive representative of the
employees in the appropriate unit found above, including
employees of Respondent at' its Yuma, Arizona, place of
business, thereby engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (d)'of the Act.
7. By the foregoing conduct, Respondent has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7, thereby engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
8. The unfair labor practices found above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing, findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following.'
[Recommended Order omitted from publication.]
' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.