Webb Furniture Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1526 (N.L.R.B. 1965)

1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Webb Furniture Corporation and District 50, United Mine Work-
ers of America. Case No. 5-CA-2908. June 15, 1965
DECISION AND ORDER
On February 3, 1965, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Decision and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and brief, and the entire record in this case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
Respondent, Webb Furniture Corporation, Galex, Virginia, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This complaint,1 issued under Section 10(b) of the National Labor Relations Act,
as amended, herein called the Act, heard before Trial Examiner Joseph I. Nachman
at Roanoke, Virginia, on October 8, alleges that since on or about July 29, Webb
Furniture Corporation, herein called Respondent or Company, violated Section
8(a) (5) of the Act by refusing to bargain collectively with District 50, United Mine
Workers of America, herein called the Union, the duly certified representative of
Respondent's employees. At the hearing all parties were represented by counsel, and
were afforded full opportunity to adduce pertinent evidence, to examine and cross-
examine witnesses, and to argue orally on the record. Oral argument was waived. A
memorandum brief submitted by the General Counsel, and a formal brief submitted
by the Respondent, have been received and duly considered.
i Issued August 27, upon a charge filed August 3. All dates mentioned are 1964, unless
otherwise indicated.
152 NLRB No. 160.
WE13B FURNITURE CORPORATION 1527
Upon the entire record in the case, I make the following:
FINDINGS OF FACT 2
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
On October 12, 1962, the Regional Director of Region 5 of the Board, on behalf
of the Board, certified the Union as the representative of the employees in the afore-
mentioned unit. The parties began bargaining for a contract on November 6, 1962,
and between that date and December 10, 1963, when the parties last met, some 17
bargaining sessions were held. While some tentative agreements were apparently
reached, no contract was concluded.3 At the conclusion of the December 10, 1963,
meeting, the principal issues on which the parties had failed to reach agreement were,
according to the Union, checkoff, holidays, and a combined bonus and vacation plan.4
Between the adjournment of the meeting on December 10, 1963, and May 22, 1964,
there does not appear to have been any direct communication between the parties.5
On the last-mentioned date, the Union wrote Respondent's president asking for a
meeting on June 1, "for the purpose of continuing our contract negotiations." By
letter dated May 28, Respondent replied to the Union's letter of May 22, stating:
We respectfully decline to meet with you because of the fact that we had
reached a complete impasse on several principal issues during our last meetings,
the last of which was held December 10, 1963.
Upon receipt of Respondent's letter of May 28, the Union filed a charge with the
Board (Case No. 5-CA-2856), alleging that Respondent's refusal to meet with the
Union constituted a refusal to bargain within the meaning of Section 8(a)(5) of the
Act. The Regional Director dismissed that charge on July 21. The basis for the
dismissal does not appear.
By letter dated July 22, the Union wrote Respondent that it had reconsidered its
positions on the holidays, bonus-vacations, and checkoff issues, and requested that
Respondent resume bargaining. With respect to the issues mentioned, the Union
outlined its positions as follows:
Union's position
during negotiations
A. Holidays
At least 3 holidays to be paid for at
straight time rates if not worked,
and at premium rates if worked.°
Current modified
proposal
July 4, Thanksgiving and Christmas
days to be holidays, employees to
receive time and one-half for work
on such days. For purpose of com-
puting whether more than 40 hours
were worked during a week in which
a holiday fell, the holiday would be
counted as 8 hours worked.?
2 NO Issue of commerce or labor organization is presented. The complaint alleges and
the answer admits facts which adequately establish the Board's jurisdiction, and the
parties stipulated the Union's status as a labor organization. I so find. The complaint
also alleges and the answer admits that "all production and maintenance employees, in-
cluding firemen and truckdrivers at Respondent's Galex, Virginia, plants, but excluding
all office clerical employees, guards, professional employees and supervisors as defined in
the Act," constitute a unit appropriate for the purposes of collective bargaining. I
so find.
"The General Counsel does not contend that the bargaining during this period was In
any way violative of Section 8 (a) (5) of the Act
4 There is a conflict in the evidence as to whether or not agreement had been reached
on the issue of holidays. The conflict is hereafter discussed.
5 The Union's chief negotiator, Mowry, testified that through the representative of the
Federal Mediation Service, who participated in some of the earlier bargaining sessions,
he tried to arrange a meeting during the early part of 1964, but no such meeting took
place. Mowry admitted, however, that during the period mentioned he made no over-
tures to Respondent for bargaining sessions
9 Mowry, the Union's chief negotiator at the bargaining sessions, testified that as used
in this proposal the term "premium rate" meant double the regular rate of pay.
7 Examples of the operation of the proposals based on Respondent's normal workweek
of 6 days, 8 hours each, are as follows: Under the Union's proposal during the negotia-
tions, an employee who worked a full week, Including a holiday, would be paid for
56 hours of work ( 6 8-hour days equal 48 hours , plus an additional 8 hours for work on
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Bonus-Vacation Use Company 's proposal for determin-
Employees to receive a vacation bonus ing eligibility , with a maximum of
equal to the multiple of the regular 60 days as the base for computing
hourly rate times 80 days (or times the bonus.
an average resulting from the appli-
cation of a certain formula which
the Union estimated would run
about 75 days).8
C. Checkoff
Company to deduct union dues from No change in Union 's position.
pay of employees who are members
of the Union and authorize such
deduction.9
The Union concluded its letter of July 22, by stating that in view of its ( the Union's)
modification of the position on the items above referred to, it was requesting further
meetings for the purpose of negotiating a contract , and suggested dates for that
purpose. By letter dated July 29, Respondent advised the Union that its position
remained the same as set forth in its letter of May 28, set forth above , namely, that
it refused to bargain further because of the impasse reached in the negotiations which
terminated December 10, 1963.
B. Contentions and concluding findings
The General Counsel, conceding that the parties had, when the negotiations con-
cluded on December 10, 1963, reached a bona fide impasse, contends that the Union's
subsequent modifications of its prior demands, broke the impasse and imposed on
Respondent the duty to resume bargaining. Respondent, on the other hand, contends
that the changes proposed by the Union's letter of July 22, were not sufficiently sub-
stantial to require it to resume bargaining particularly in view of the Union's failure
to make any concession in its demand for a checkoff, and argues that the Union's
insistance on the latter provision would, in any event preclude an agreement, even if
Respondent agreed to the Union's revised holiday and bonus-vacation proposals.
It is true, of course, that an employer is not required to engage in futile discussions,
and may lawfully refuse to continue negotiations when good-faith bargaining demon-
strates that the parties are unable to reach agreement on the issues before them.
N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862 (C.A. 2). But the existence of a
bargaining impasse, which admittedly was reached in the instant case, does not
the holiday, totals 56 hours) Assuming the same workweek, and further assuming that
the employee did not work the holiday, pay would be received for 52 hours (5 8-hour
days, equal 40 hours, plus time and one-half for the holiday or 12 hours, making a total
of 52 hours). Under the Union's modified proposal and assuming the same workweek,
if an employee worked the holiday, be would be paid for 52 hours (6 8-hour days equal
48 hours, plus an additional 4 hours for work on the holiday, equal 52 hours). If an
employee did not work the holiday, he would be paid for 44 hours (5 8-hour days, plus
an additional 4-hour overtime for 8 hours of work on the final day of the week, because
for the purpose of computing overtime the holiday not worked would be regarded as
8 hours of work). In such a case, an employee who worked a full week in which a
holiday fell would always receive 1-day pay at time and one-half.
Respondent's president, D E Ward, testified that at the meeting of October 2, 1963,
the parties reached agreement that July 4, Thanksgiving Day and Christmas Day should
be unpaid holidays if an employee did not work, and that time and one-half would be paid
if the named holiday was worked, with the understanding that the agreement would not
apply to employees in the classification of firemen , watchmen , and maintenance men.
Union Business Agent Mowry, however, denied that any agreement was reached on Octo-
ber 2, 1963, or any other time, with respect to the holiday issue. I credit Mowry and
find that no agreement on the holiday issue was reached I do so because when Ward
replied to the Union's letter of July 22, which set forth both the original and modified
position of the Union on holidays, Ward made no claim that agreement had been reached
on that issue Instead, by reference to his letter of May 28, based his refusal to bargain
on the fact that an impasse had been reached "on several principal issues."
8In the negotiations the Company had proposed a different basis for computing the
number of days, with a maximum of 30 days as the base for computing the vacation pay.
U During the negotiations Respondent had refused to agree to any form of checkoff con-
tending that to do so would disclose union membership, information which Respondent
preferred not to have.
WEBB FURNITURE CORPORATION 1529
relieve the employer of all further obligations to bargain . Where the position of one
of the parties undergoes a substantial change, the conditions which brought about
the impasse no longer remain , there is no reason to assume that the impasse will
continue. Cf. Boeing Airplane Company, a corporation, et al., 80 NLRB 447, 454.
In such a situation the statutory collective-bargaining rights of the employees can be
protected only by further bargaining. As the Board said in Central Metallic Casket
Co., 91 NLRB 572, at 573:
The existence of a bargaining impasse does not destroy either the authority of
the representative to act within the sphere of its representation nor the right of
the employees to seek by collective action (which may take the form of either
further negotiation or concerted application of economic pressures) to persuade
the employer to accept the collective position of the group as to the particular
terms which shall govern the employment relation. [Emphasis supplied.]
The issue to be decided in the instant case is, therefoie, whether the Union's letter
,of July 22, presented Respondent with proposals which were sufficiently different
from those which the Union previously urged, to break the impasse which the parties
had reached in their prior negotiations.
Upon the facts in this record, I find and conclude that they were, and that by refus-
ing to thereafter 'bargain with the Union, Respondent violated Section 8(a)(5) and
(1) of the Act. I am persuaded to this conclusion by the following factors
1. Among the policies of the Act, as set forth by Congress, is that industrial strife
will be lessened by promoting private collective bargaining looking toward an agree-
ment between the parties regulating the terms and conditions of the employment rela-
tionship. It is true that the law is satisfied if the parties bargain in good faith to an
impasse, but the policies of the Act are satisfied only if the parties reach an agreement.
To promote the possibility of agreement, only a slight change in bargaining position
should be needed to require the parties to resume bargaining.
2. The proposals set forth in the Union's letter of July 22, insofar as they relate
to the holiday and bonus-vacation issues, did substantially modify the position which
the Union took on those issues during the prior bargaining negotiations. Thus, as
set forth in footnote 7, supra, under the Union's original proposal an employee who
worked a full week in which a holiday fell, including the holiday, would be paid for
56 hours of work, while under the Union's proposal as modified, an employee would,
under the same state of facts, be paid only for 52 hours work. In the case where the
employee did not work on the holiday, he would be paid under the Union's original
proposal for 52 hours of work, but under the Union's modified proposal for only 44
hours of work. With a work force of several hundred employees, it is apparent that
under either state of events, the Union's modified proposal placed upon the employer
a substantially lesser wage liability. Likewise, the Union's modified proposal on
"bonus-vacations," reducing the maximum number of days for the computation of the
amount due each employee by at least 15 days from what the Union sought during
negotiations, substantially reduced Respondent's monetary liability under this pro-
posal, and constituted a sufficiently substantial modification of the Union's prior
proposal to require Respondent to resume negotiations.")
Respondent's contention that the Union's adherence to its original demand for a
checkoff (see footnote 9, supra), would have precluded a contract even had it agreed
to all the modifications proposed by the Union, is beside the point. It is entirely
possible that as a result of further negotiations the Union may convince Respondent
that it should agree to a checkoff, or Respondent may agree on that issue in exchange
for some modification by the Union on another contract provision. Likewise, the
Union may abandon its demand for a checkoff in exchange for Respondent's modifi-
cation of its position on some other contract term. The point is that no one can tell
what the parties may agree upon until they have bargained and reached an agreement
or a good-faith impasse. Certainly, bargaining negotiations in an effort to reach an
agreement with the Union will impose no undue burden on Respondent. As the
Court of Appeals for the Ninth Circuit said (Pacfile Coast Association of Pulp and
i°I have heretofore found ( see footnote 7, supra ), that the parties had not, as Re-
spondent contends , reached agreement during their bargaining negotiations on the issue
of holidays , and I base my conclusion in this case on the premise that the Union had
sufficiently modified its position on both the holiday and the bonus -vacation proposals to
require a resumption of negotiations . However, were I to conclude that the parties had,
as Respondent contends , theretofore agreed on the holiday issue , I would nonetheless find
and conclude that the Union 's modification on the bonus -vacation issue was itself suf-
ficiently substantial to require Respondent to resume bargaining negotiations.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paper Manufacturers v. N.L.R.B., 304 F. 2d 760, at 766.) in a somewhat comparable
situation , in directing an employer to bargain with a union:
We venture to suggest that [Respondent] get into the water before [ it makes] an
irrevocable decision that it is too cold . [It] may find, and not entirely to [its]
own surprise , that it is tolerable, or even quite pleasant.
For the reasons stated , I find and conclude that by its refusal to bargain with the
Union pursuant to the latter's request of July 22, 1964, Respondent violated, and
continues to violate Section 8 ( a) (5) and (1) of the Act.
II. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices as set
forth above, I shall recommend that it cease and desist therefrom , and take affirma-
tive action designed to eradicate the effect thereof, and to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act,
and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees , including firemen and truckdriv-
ers at Respondent 's Galex, Virginia , plants, but excluding all office clerical employ-
ees, guards , professional employees , and supervisors , as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bargaining with respect to
rates of pay , wages, hours of employment , and other terms and conditions of
employment.
4. By failing and refusing to bargain with the Union pursuant to the latter's
request of July 22, 1964, Respondent engaged in , and is engaging in, unfair labor
practices proscribed by Section 8(a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended , it is rec-
ommended that Respondent, Webb Furniture Corporation, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with District 50, United Mine Workers of
America, as the exclusive collective -bargaining representative of its employees in a
unit composed of all production and maintenance employees, including firemen and
truckdrivers , at its Galex , Virginia , plants, but excluding all office clerical employees,
guards, professional employees , and supervisors , as defined in said Act , with respect
to rates of pay, wages, hours of employment , and other terms and conditions of
employment.
(b) In any like or related manner interfering with, restraining , or coercing
employees in the exercise of their right to self -organization , to form, join, or assist
labor organizations , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain from any and all such
activities.
2. Take the following affirmative action found necessary to effectuate the policies
of said Act:
(a) Upon request bargain collectively with District 50, United Mine Workers of
America, as the exclusive representative of the employees in the aforesaid unit, and
embody any understanding reached into a signed contract.
(b) Post at its plants in Galex, Virginia , copies of the attached notice marked
"Appendix." 11 Copies of said notice, to be furnished by the Regional Director for
n In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Exam-
iner" in the notice . In the further event that the Board 's Order be enforced by a decree
of a United States Court of Appeals , the words "a Decree of the United States Court
of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order."
DEATON TRUCK LINE, INC. 1531
Region 5 of the Board (Baltimore, Maryland), shall, after being signed by an
authorized representative of Respondent, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
from the date of posting, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the said Regional Director for Region 5, Baltimore, Maryland, in
writing, within 20 days from the date hereof, what steps it has taken to comply
herewith.12
11 If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL, upon request, bargain collectively with District 50, United Mine
Workers of America, as the exclusive representative of our employees in a
unit composed of all production and maintenance employees, including fire-
men and truckdrivers, at our Galex, Virginia, plants, but excluding all office
clerical employees, professional employees, guards, and supervisors, as defined
in National Labor Relations Act, with respect to rates of pay and other terms
and conditions of employment, and if an understanding is reached, embody the
same into a signed agreement.
WE WILL NOT, by refusing to bargain collectively with the duly designated
representative of our employees, or in any like or related manner, interfere
with, restrain, or coerce our employees in exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist Mine Workers, or any other
labor organization of our employees, to bargain collectively through represent-
atives of their own choosing, or to engage in other concerted activities for the
purposes of mutual aid, or to refrain from any or all such activities.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above named or any other labor organization.
WEBB FURNITURE CORPORATION,
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, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance
with its provisions.
Deaton Truck Line , Inc. and Local 612, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 10-CA-5216. June 15, 1965
DECISION AND ORDER
On November 4, 1964, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
152 NLRB No. 137.