Van Ben Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1987

285 N.L.R.B. 77 (N.L.R.B. 1987)

VAN BEN INDUSTRIES - 77
Van Ben Industries , Inc. and Local No. 1445,
United Food & Commercial Workers Interna-
tional Union, AFL-CIO. Case 1-CA-23338
30 July ][987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 12 May 1987 Administrative Law Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions 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, Van Ben In-
dustries, Inc., Clinton, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order,
Don Firenze, Esq., for the General Counsel.
Mitchell W. Goldblatt, Esq., of Brooklyn, New York, for
the Respondent.
Paul Dufault and David B. Rome, Esq., Boston, Massa-
chusetts, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge.
The case was heard on 7 March 1986 in Boston, Massa-
chusetts, on complaint alleging Respondent unlawfully
refused to recognize and bargain with the Union s the
bargaining representative for Respondent's employees,
thereby violating Section 8(a)(5) of the Act.
On the entire record, including consideration of the
briefs filed by the parties, I make the following
FINDINGS OFF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent makes products used in national defense
for agencies of the United States Government at its Clin-
ton, Massachusetts location from which Respondent an-
nually ships products valued in excess of $50,000 directly
to points outside Massachusetts. As admitted, I find Re-
spondent is an employer engaged in commerce within
the meaning of the Act, and that the Union is a labor or-
ganization as therein, defined.
The appropriate bargaining unit, as admitted, and so
found, is:
All employees employed by Respondent, at the
Clinton facility, including production and mainte-
nance employees, shipping and receiving employees,
and truckdrivers, but excluding office clerical em-
ployees, temporary and casual employees, guards
and supervisors as defined in the Act.
II. THE UNFAIR LABOR PRACTICE
The sole issue is whether Respondent lawfully with-
drew recognition and refused to bargain with the Union
on 28 October 1985 following its employees' repudiation
of the Union as their collective-bargaining representative,
or whether, instead, Respondent was foreclosed from
doing so because a reasonable period of time accorded
under Board law for the parties to engage in collective
bargaining towards a contract following their earlier set-
tlement agreement of an unfair labor practice case in
June 1985 had not yet elapsed.
Background
The Board certified the Union as employees' repre-
sentative in Cases 1-RC-16002 and I-RC-16019 in 1979
according to General Counsel's Exhibit 2 and the parties
stipulation at hearing. At that time, the Company was
Van Brode Milling Co. Inc., and the parties herein intro-
duced into this record by stipulation a 1982-1984 collec-
tive-bargaining agreement between Van Brode and the
Union, as well as a January 1984 memorandum of agree-
ment between those parties further covering unit em-
ployees' conditions of employment. (G.C. Exh. 4(a)
and(b).)
The complaint alleged and Respondent admitted that
Chemical Compounding Corporation purchased Van
Brode's Government division on 24 April 1984. (Union
Secretary-Treasurer Paul Dufault testified without con-
tradiction at this hearing that Respondent's owner Daniel
Kohn is the president of Chemical Compounding Corpo-
ration.) Respondent shortly thereafter purchased same.
from Chemical Compounding in June 1984 and, as fur-
ther admitted, since then and the achievement of substan-
tial production by Respondent', at the Clinton facility on
1 August 1984, Respondent engaged in the same business
operations, at the same locations, performing the same
national defense contracts, with many of the same man-
agers and supervisors, and-since I August 1984-has
employed a majority of the prior Van Brode Govern-
ment divisions operations employees. Further admitted is
that Respondent is a successor of Van Brode with re-
spect to such operations, and the parties stipulated at this
hearing that Respondent had a duty to bargain with the
Union with respect to the unit the Union had represented
under, the predecessor Van Brode on demand by the
Union for such bargaining from and after 24 April 1984,
which demand for bargaining was in fact made by the
Union on 16 August 1984.
The stipulation continues: Respondent refused to rec-
ognize the Union. (The record shows, in the form of an
exhibit received by stipulation of the parties' settlement
285 NLRB No. 18
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement discussed further below, and Respondent's
answer to complaint, that it refused the Union's request
on 24 August 1984, that the Union then filed charges in
cases 1-CA-22528, 1-CA-22630, and 1-CA-22800, and
that a complaint issued.) The parties agree that they en-
tered into a non-Board settlement agreement whereby
the Respondent agreed to recognize the Union and that
the agreement be received into evidence. The agreement
refers to the Union's charges in the cases identified
above, and points out that "Whereas the Union and Em-
ployer are desirous of settling said unfair labor practice
charges, [they agree]:
1. The Union hereby agrees to withdraw or cause
to be withdrawn all charges filed in the above
cases, with prejudice. [Emphasis added].
2. Upon approval of the withdrawal of said
charges by the Regional Director for Region 1 of
the National Labor Relations Board, Van Ben In-
dustries, Inc. only will recognize the Union as the
sole and exclusive bargaining agent for its produc-
tion employees in an appropriate unit." [G.C. Exh.
3, dated June 24, 1981.]
The Union's withdrawal request and the Regional Di-
rector's approval of same and dismissal of complaint
were received by agreement into the record. (G.C. Exhs.
3(b) and(c).) By still further stipulation the parties agreed
that thereafter there was a single collective-bargaining
session between the Respondent and Union on 23 Sep-
tember 1985; that following the meeting a majority of
the employees repudiated the Union as their exclusive
bargaining representative, Respondent learning thereof
on the morning of 28 October 1985 and in the afternoon
refusing to recognize the Union further.
- The Meeting on 23 September 1985
Union Secretary-Treasurer Paul Dufault along with
Business Agent Raymond Stevens met with Respondent's
owner and treasurer, Daniel Kohn, for the first and only
meeting following their execution of the settlement
agreement at the Ritz Carlton Hotel on 23 September for
about 4 hours, including a luncheon period. The union
representatives presented Kohn with a copy of the old
Van Brode agreement, reviewed its provisions part by
part and item by item with him, commenting on certain
clauses, questioning some, defining what the terms en-
tailed and in general presenting the former contract as a
basis for negotiations towards a new agreement. Union
security, seniority provisions, the vacation clause,' sick
leave and other provisions were considered. Dufault tes-
tified without significant variation offered by Kohn that
the Union was not offering the entire former agreement
as is because there were changes the Union wanted-and
Kohn said he wanted as well-and that Kohn wanted to
get back to the Union on some items. The Union wanted
upward wage changes for example, and Kohn wanted a
choice to get back to the Union on that, Dufault testi-
fied, as to how much the Company could afford. The
Union did not present actual figures, informing Kohn
they would discuss it further at the next meeting. Kohn
recalled the Union was willing to leave wages alone. The
parties discussed health and welfare benefits , some recep-
tivity surfacing to the idea of the parties going to a
union-endorsed fund for such purposes . Kohn proposed
limiting vacations to 2 weeks rather than 5 as contained
in the former contract, and testified he told the union
representatives there was no way he could deal with the
lengthy vacation article at that session . In sum, Dufault's
description of the meeting appears accurate : It was more
of a preliminary meeting-reviewed the old contract, left
with a tentatively scheduled further meeting at which
Kohn was to come back with proposals and acceptance
of the language or rejection of the language and "he was
going to make proposals to us and we were going to fur-
ther negotiations." The next meeting was scheduled for
18 October but was postponed to 30 October by mutual
agreement . As noted the Respondent withdrew recogni-
tion on 28 October , refusing further negotiations on
learning of the employees ' repudiation,of the Union as
bargaining representative that morning.
Analysis and Conclusion
It is settled law that the parties to a settlement agree-
ment resolving refusal to recognize and bargain charges
filed under Section 8(a)(5) of the Act by providing for a
respondent's assumption of the duty to recognize and
bargain with a union as the exclusive collective-bargain-
ing representative of such respondent's employees are en-
titled to a reasonable period of time after the execution
of same in which to conclude an agreement, and that
during such reasonable period of time, the respondent is
precluded from questioning the union's majority status.
Pool Foundry Co., 95 NLRB 34 (1951). The principle has
been held firmly applicable to non-Board settlement
agreements as involved herein. VIP Limousine, 276
NLRB 871 (1985), and Mammoth of California, 253
NLRB 1168 (1981). While Respondent asserts that the
Board's decision in Harley-Davidson Co., 273 NLRB 1531
(1985), holding a' successor employer has the right to
question a union's majority status at any time should be
controlling herein, such decision is inopposite when, as
here, the Employer involved entered into a settlement
agreement resolving refusal-to-bargain charges, the quid
pro quo for the withdrawal of the charges and dismissal
of complaint being the Employer's undertaking of the
duty to recognize and bargain with the Union for a rea-
sonable period of time unlike the situation in Harley-Da-
vidson, supra; when the employer, believing he "might be
a successor" recognized the union initially, bargained
with it and when later faced with proof of employee re-
pudiation of the union withdrew recognition. Poole
Foundry Co., supra at 36; and, compare NLRB Y. Vantran
Electric Corp., 580 F.2d 921 (7th Cir. 1978). The princi-
ple that the parties' agreement, supported by important
consideration on both sides including the relinquishment
of significant rights "if it is to achieve its purpose must
be treated as giving the parties thereto a reasonable time
in which to conclude a contract," is too readily appar-
i Poole Foundry, supra at 36
VAN BEN INDUSTRIES
ent a necessary corollary to the parties' agreement to
need further explanation, and has been confirmed recent-
ly since the Poole decision. VIP Limousine, supra.
I find that the period beginning from the time the par-
ties settlement agreement was executed and approved by
the Board's Regional Director in late June 1985 until the
date Respondent withdrew recognition on 28 October
1985, a period of only slightly more than 4 months
where only a single, though promising, preliminary meet-
ing described above as providing a framework for future
negotiations expected and planned to occur soon after
the parties first meeting was concluded, did not consti-
tute a reasonable time in which to conclude a contract. It
is clear that further ongoing negotiations were contem-
plated by the parties, who were feeling out each other's
positions, that there had not yet been meetings on a reg-
ular basis, substantial agreement on many items, or time
enough for the further exchange of proposals or conces-
sions by either side-negotiations barely had a chance to
get off the ground and were in fact at a nascent stage
when Respondent severed the relationship without there
having been a substantial period of time during which
good-faith negotiations could have ensued. While the test
is what transpires during the time period under scrutiny,
rather than the length of time elapsed, it is readily appar-
ent that the fledgling negotiations herein occurred in so
short a timeframe and were of such a limited nature re-
quiring further time to mature into even a possible agree-
ment, that no reasonable period of time for bargaining
had elapsed, and thus Respondent was not privileged to
question the Union's majority status. VIP Limousine,
supra, and cases cited therein. It is therefore concluded
that Respondent violated Section 8(a)(5) of the Act on
28 October 1985 when it withdrew recognition from the
Union as collective-bargaining representative for its em-
ployees.
CONCLUSIONS OF LAW
1. Respondent, a successor to Van Brode Milling Co.,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the At.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The employees in the unit described above in sec-
tion I in this decision constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material the Union has been and is cur-
rently the exclusive collective bargaining representative
of the employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By withdrawing recognition from the Union and re-
fusing to bargain collectively with it as the exclusive col-
lective-bargaining representative of employees in the unit
herein found appropriate, Respondent violated Section
8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
79
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Van Ben Industries, Inc., Boston,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local No.
1445, United Food & Commercial Workers International
Union, AFL-CIO as the exclusive bargaining representa-
tive of its employees in the aforesaid appropriate bargain-
ing unit with respect to wages, hours of work, and any
other terms and conditions of employment of such em-
ployees-
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain collectively with
Local No. 1445, United Food & Commercial Workers
International Union, AFL-CIO as the exclusive repre-
sentative of the employees in the bargaining unit found
appropriate above, with respect to their wages, hours of
work, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed
contract.
(b) Post at its place of business in Clinton, Massachu-
setts, copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
3 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."
80 DECISIONS 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 collectively regarding
wages , hours of work , and any other terms and condi-
tions of employment with Local No. 1445 , United Food
& Commercial Workers International Union , AFL-CIO,
as the exclusive bargaining representative of our employ-
ees in a bargaining unit consisting of:
All employees employed by Respondent, at the
Clinton facility, including production and mainte-
nance employees, shipping and receiving employees,
and truckdrivers, but excluding office clerical em-
ployees, temporary and casual employees , guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of our employees in the ex-
ercise of any rights guaranteed by Section 7 of the Act.
WE WILL, on request, bargain collectively with Local
No. 1445 , United Food & Commercial Workers Interna-
tional Union, AFL-CIO as the exclusive representative
of the employees in the unit described above, with re-
spect to their wages , hours of work, and any other terms
and conditions of employment and, if an agreement is
reached , embody it in a signed contract.
VAN BEN INDUSTRIES, INC.