Standard Fittings Co.

National Labor Relations Board - Board Decisions

Aug 7, 1987

285 N.L.R.B. 285 (N.L.R.B. 1987)

STANDARD FITTINGS CO.
Standard Fittings Company and Oil, Chemical and
Atomic Workers International Union, AFL-
CIO, and its Local 4-555. Case 15-CA-9715
7 August 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 14 May 1987 Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions, to modify his remedy,' and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Standard
Fittings Company, Opelousas , Louisiana , its offi-
cers , agents , successors , and assigns , shall take the
action set forth in the Order.
1 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 will be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to 1 January 1987 shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
Charlotte N. White, Esq., for the General Counsel.
Lawrence J Molony, Esq., of Metarie, Louisiana, for the
Respondent.
James E. Bergeron, Esq., of Marrero, Louisiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON , Administrative Law Judge.
This case was heard in Opelousas , Louisiana , on 12 Feb-
ruary 1987 . The complaint was filed on 14 January 1987
pursuant to a charge filed on 15 July 1985. Respondent,
in its answer , admitted that it is an employer engaged in
manufacturing and distributing forged steel and pipefit-
tings, that its operations include a facility in Opelousas,
Louisiana , that it has satisfied the Board 's jurisdictional
standards during representative periods, and that it is,
and has been , an employer within the meaning of Section
2(2), engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act . Respondent also admitted
285
that the Union is, and has been at material times, a labor
organization within the meaning of Section 2(5) of the
Act.
Additionally, Respondent admitted the following:
All production and maintenance employees, in-
cluding packers and inspectors, at the Employer's
Opelousas, Louisiana, plant, excluding professional
employees, office clerical employees, watchmen,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
On or about 4 January 1973 a majority of Re-
spondent's employees in the appropriate unit de-
scribed above, by secret ballot election conducted
under the supervision of the Regional Director of
the Board's 15th Region, designated and selected
the Union as their representative for purposes of
collective bargaining with the Respondent, and on
or about 12 January 1973, the Regional Director
certified the Union as the exclusive bargaining rep-
resentative of all employees in said unit.
At all times since on or about 4 January 1973, the
Union has been, and is now, the representative for
the purposes of collective bargaining of a majority
of the employees in the unit described above and by
virtue of Section 9(a) of the Act has been, and is
now, the exclusive representative of all employees
in said unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment.
Following the Union's certification, the Union
and Respondent entered into successive collective-
bargaining agreements establishing the rates of pay
and terms and conditions of employment of the em-
ployees in the above-described unit, one of such
agreements being effective from the 1st day of
March 1984 until 12:01 a.m. on the 1st day of
March 1986.
Pursuant to Article VI, Appendix "A" of the 1
March 1984 collective-bargaining agreement, the
employees in the above-described bargaining unit
were to receive a wage increase of 35 cents per
hour across the board on 1 March 1985.
In its answer Respondent denied the complaint allega-
tions that it has, since about 1 March 1985, refused to
bargain with the Union in that it unilaterally withheld
until about 30 September 1985 a 35-cent-per-hour wage
increase.
The record evidence developed that Respondent has
experienced financial difficulties for the past several
years due, at least in part, to the depressed oil and gas
industry. Respondent has continued to lose money since
1982.
On 20 February 1985, Respondent's president, Erwin
Davlin, met with the Union's negotiating committee.
Davlin asked the committee to permit Respondent to
delay implementing the collective-bargaining agreement's
1 March 1985, 35-cent-per-hour wage increase and to
285 NLRB No. 40
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
impose a 5-percent pay reduction on unit employees for
a period of 9 months. Davlin told the committee that Re-
spondent's financial difficulties necessitated his proposal
and in the absence of agreement by the Union, Respond-
ent would have to either impose a "payroll reduction," a
"massive layoff," a reduction "from 40 to 30 or 32
hours" per week, or Respondent would have to file for
Chapter 11 bankruptcy.
The committee requested, and Davlin agreed, that
union auditors examine Respondent's financial records.
The auditors confirmed that the financial records showed
the Respondent was losing money.
On 6 March 1985, the committee met with Davlin.
The committee offered to accept a 6-month delay in the
35-cent-per-hour wage increase with no other changes in
the contract, subject to ratification by the local union
members. Davlin accepted the Union's counterproposal.
On 14 March Respondent's original proposal and the
committee's 6-month counterproposal were presented to
the members present in the Local Union's regular month-
ly meeting. The members voted 97 to 22 to reject the
union committee counterproposal.
On 15 March, Davlin called the committee members
into his office. Among other things, Davlin told the com-
mittee that he was going to talk with the union member-
ship.
During the week beginning 18 March 1985, Davlin
held two series of meetings with the unit employees.
During 18 and 19 March and again on 21 and 22 March,
the employees were addressed in separate groups of ap-
proximately 20 employees. The sessions included each
employee first on either 18 or 19 March and again on
either 21 or 22 March.
During the first meetings, 18 and 19 March, Davlin ex-
plained Respondent's financial situation and why it was
important for Respondent to delay the contractual wage
increase.
During the second session , on 21 and 22 March,
Davlin told the employees that each employee would
have a choice of demanding the wage increase in which
case it would be necessary to reduce that respective em-
ployee's hours from 40 hours to 30 hours per week; or
permitting Respondent to delay the pay increase in
which case that employee could continue to work his
regular 40 hours per week.
A small group of employees refused to waive their
wage increase and those employees were required to
work 30-hour weeks. As to all but some 12 to 16 em-
ployees who worked the reduced hours, Respondent de-
layed the contractual 35-cent-per-hour wage increase
from March until 1 October 1985.
Respondent's personnel manager, Harold Martin, ad-
mitted that the local union committee chairman, Eli
Norman, told the employees that Davlin's actions during
the meetings of the week of 18 March were illegal.
Conclusion
The issue presented here is may an employer legally
delay implementation of the terms of an existing bargain-
ing agreement absent consent from the Union. Unfortu-
nately, from Respondent's standpoint, the law is clear
that a party may not escape its obligations under a col-
lective-bargaining agreement because of financial difficul-
ties (Manley Truck Line, 271 NLRB 679 (1984); A & W
Foods, 276 NLRB 129 (1985)).
Moreover, by making its counterproposal to Respond-
ent, the Union did not incur an additional bargaining ob-
ligation (Herman Bros., 273 NLRB 124 (1984); A & W
Foods, supra).
At the time of Respondent's 20 February meeting with
the Union, Respondent was faced with an obligation
under the existing collective-bargaining agreement to in-
crease wages 35-cents-per-hour on 1 March 1985. Al-
though the Union illustrated sensitivity to Respondent's
financial plight, the Union was not obligated to agree to
any change in the contract.
The Union, in an effort to assist Respondent, made a
counterproposal, but, as shown above, that counterpro-
posal was subject to ratification by the membership.
After the membership rejected the counterproposal, the
Respondent initially asked the Union to call a special
meeting. That request was rejected by the local commit-
tee. However, on 18 March 1985, the Union offered to
call a special meeting . At that time Respondent, through
its president, rejected the Union's offer to hold a special
meeting.
Subsequently, as shown above, Respondent made no
further effort to work through the Union. The record
failed to show that Respondent had reached impasse in
its negotiations with the Union. Instead of continuing to
talk with the Union and despite objections from Eli
Norman, Davlin held meetings with the employees and
eventually required each employee to elect to work at
reduced hours or to waive the 35-cent increase.
Respondent was not justified in turning away from the
Union and negotiating directly with its employees during
the week of 18 March 1985 (Rath Packing Co., 275
NLRB 255 (1985)).
Respondent cited, inter alia, Letter Carriers (Postal
Service), 232 NLRB 263 (1977), enfd. 595 F.2d 808 (D.C.
Cir. 1979), in arguing that the Union acted illegally in
prohibiting nonmembers from voting on ratification of
the Union's counterproposal.
Perhaps if Respondent and the Union had agreed to a
referendum on whether the employees wanted reduced
hours or deferral of the 35-cent increase, the Letter Car-
riers case would be apposite. However, that is not what
developed here.
In the instant case, Respondent purposed a midterm
change in the collective-bargaining agreement. The
Union was under no obligation to agree to anything.
However, the Union did make a counterproposal in an
effort to assist Respondent. That complete counterpro-
posal called for a deferral of the 35-cent raise provided
the deferral was ratified by the membership. The Re-
spondent agreed to the Union's counterproposal.
Under those circumstances, I do not find that non-
union member employees were improperly excluded
from voting. The Union was not obligated to let anyone
vote. However, as part of its counterproposal to Re-
spondent, the Union required ratification by the union
membership. Respondent agreed to that counterproposal.
Therefore, Respondent is now estopped from questioning
STANDARD FITTINGS CO. 287
the propriety of the counterproposal. Moreover, I find
that the Union did not improperly deprive nonmembers
of voting rights. Neither members nor nonmembers have
a right to vote on union proposals. The inclusion of a
right to ratification created only a contractual right. Nei-
ther members nor nonmembers ever had a legal right to
vote.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent by unilaterally withholding a 35-cent-
per-hour increase from unit employees during the period
1 March through 30 September 1985, engaged in con-
duct violative of Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I shall order it to cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent has illegally with-
held a 35-cent-per-hour wage increase from unit employ-
ees for the period 1 March through 30 September 1985, I
shall order Respondent to make unit employees whole
'for any loss of earnings they suffered as a result of Re-
spondent's unlawful action. Backpay shall be computed
in the manner prescribed in Ogle Protection Service, 183
NLRB 682 (1970), with interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977).1
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent , Standard Fittings Company , Opelou-
sas, Louisiana , its officers , agents , successors , and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Oil , Chemical and Atomic
Workers International Union , AFL-CIO, and its Local
4-555, as the exclusive collective-bargaining representa-
tive for the employees in the below -described bargaining
unit, by unilaterally withholding a wage increase provid-
ed in its collective-bargaining agreement:
All production and maintenance employees , includ-
ing packers and inspectors , at the Employer's Ope-
lousas , Louisiana , plant, excluding professional em-
i See generally Isis Plumbing Co., 138 NLRB 716 (1962).
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ployees, office clerical employees, watchmen,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make each employee in the bargaining unit whole
for any loss of earnings, plus interest, he or she suffered
by reason of Respondent's illegal action.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Opelousas, Louisiana facility, copies of
the attached notice marked "Appendix."3 Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
S If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read " Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with the Oil , Chemi-
cal and Atomic Workers International Union, AFL-CIO,
and its Local 4-555 as exclusive collective -bargaining
representative of the employees in the below -described
bargaining unit , by unilaterally withholding a 35-cent-
per-hour pay increase provided in our collective-bargain-
ing agreement with the Union:
All production and maintenance employees , includ-
ing packers and inspectors , at the Employer's Ope-
lousas , Louisiana, plant , excluding professional em-
ployees , office clerical employees , watchmen,
guards and supervisors as defined in the Act.
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere legal action in withholding the 35-cent-per-hour pay in-
with , restrain, or coerce you in the exercise of the rights crease.
guaranteed you by Section 7 of the Act.
WE WILL make all bargaining unit employees whole STANDARD FITTINGS COMPANY
for all loss of earnings they suffered by reason of our il-