Windemuller Electric, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1970

180 N.L.R.B. 686 (N.L.R.B. 1970)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Windemuller Electric , Inc. and United Construction
Workers Local No. 10, Christian Labor
Association . Case 7-CA-7372
January 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 30, 1969, Trial Examiner William J.
Brown issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel filed a brief in answer thereto.
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Windemuller
'We find no merit in the Respondent' s argument that by the Union's
failure to seek to negotiate concerning the bonus and pension fund when
first established , it has thereby waived forever its right to bargain over that
subject . While it is clear that a mandatory subject of bargaining can be
waived , it is equally clear that mere failure to insist upon discussion is
effective as a waiver only for the duration of the contract then under
negotiation , the waiver is not automatically continued beyond the life of
that contract Pacific Coast Association of Pulp and Paper Manufacturers,
304 F.2d 760, 765 (C A. 9), enfg 133 NLRB 690.
We also find no merit in the Respondent 's contention to the extent that
it argues that a valid decertification petition was filed which casts doubt
upon the Union 's continuing majority status On the contrary , we find that
the petition is not sufficient to rebut the presumption of continuing
majority enjoyed by the Union. The Respondent 's refusal to bargain over
the bonus and pension plan, in violation of Section 8(aX5) and (I) of the
Act, predated the filing of the petition , and hence the Respondent cannot
rely on that petition , which could have resulted from the Respondent's
unlawful conduct . Furthermore , we note that the validity of the petition
may be questionable , as it is supported by undated signatures , contrary to
the requirement articulated in the National Labor Relations Board
Statements of Procedure, Series 8, as amended , Section 101 17. And see,
A Werman and Sons, Inc . 114 NLRB 629, 630
Electric, Inc., Grand Rapids, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended , hereinafter referred to as the "Act," came on
to be heard at Grand Rapids, Michigan, on August 25,
1969.' The original charge of unfair labor practices had
been filed on June 12, by the above-indicated Charging
Party, hereinafter referred to as the Union, and the
complaint herein was issued July 18 by the General
Counsel of the National Labor Relations Board acting
through the Board's Regional Director for Region 7. It
alleged, in addition to jurisdictional matter, that the
above-indicated Respondent, hereinafter referred to as the
"Company," engaged in unfair labor practices defined in
Sections 8(a)(5) and (1) of the Act. The Company's duly
filed answer has denied the commission of the unfair labor,,
practices alleged in the complaint and affirmatively
alleged that the filing of the charge herein was occasioned
by the Union's loss of majority status and its desire to
regain the same through the means of a Board order
requiring it to bargain.
At the hearing the parties appeared and participated, as
noted above with full opportunity to present evidence and
argument on the issues. Subsequent to the taking of the
evidence herein representatives of the General Counsel and
the Company argued orally and waived the filing of briefs.
On the entire record herein and on the basis of my
observation of the single witness and my analysis of the
oral argument, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
I find, in accordance with the pleadings and evidence,
that the Company is a corporation organized and existing
under and by virtue of the laws of the State of Michigan
and maintains its principal office in the City of Grand
Rapids, Michigan, where it is engaged in the electric
wiring aspect of the building and construction industry.
During its current fiscal year, admittedly a representative
period, the Company is performing and will perform
services valued in excess of $50,000 for a corporation
which annually ships from Michigan locations directly to
customers outside Michigan goods valued in excess of
$50,000 while receiving directly from suppliers outside
Michigan goods valued in excess of $50,000. I find, as the
Company concedes, that it is an employer engaged in
commerce within the meaning of Sections 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence indicate and I find that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
'Dates hereinafter, unless otherwise indicated, relate to the year 1969
180 NLRB No. 106
WINDEMULLER ELECTRIC, INC. 687
III. THE UNFAIR LABOR PRACTICES
Contractual relations between the Company and Union
commenced in 1961' and have governed terms and
conditions of employment of about 20 company employees
in an admittedly appropriate unit consisting of all
company electricians and apprentices, excluding office
clerical employees, guards and supervisors as defined in
the Act. The annual contract negotiations have been
carried on by Company President Edward Windemuller
and Union Business Agent Harry Vander Laan who are
neighbors and personal friends. Vander Laan's son has
been a company employee for 6 or 7 years.
After meeting with employees on February 27, Vander
Laan delivered the union proposals for a renewal
agreement to Windemuller on February 28; there was no
discussion of the proposals at that time, Vander Laan
leaving before Windemuller opened the envelope
containing the union proposals. At Windemuller's call a
meeting was set for March 4 at which Windemuller
referred to the union proposals as a 'stab in the back' and
delivered to each of the union committee a memorandum
(G. C. Exh. 3) listing a number of jobs performed during
the preceding year and, apparently, secured through
under-bidding competitors. The memorandum also listed
various elements of the Company's costs' as follows:
Per hr.
base pay $4.50
insurance hospitalization .09
vacation pay .10
holiday pay .10
travel pay .05
bonus .20
pension fund .20
total $5.24
On receipt of the Company's cost breakdown figures at
the March 4 meeting Vander Laan stated that the items of
bonuses and pensions were negotiable items and,
according to Vander Laan's account, which I credit,
Windemuller refused to negotiate on these subjects, stating
that they were over and above the pay rate. The meeting
lasted 2 1/2 hours and ended with no agreement reached.
The next meeting of the parties took place on March II
at which the Union submitted written proposals (G. C.
Exh. 4) and essentially reached agreement on five out of
the six union proposals but, with respect to the union
request that the pension plan formula be incorporated in
the labor agreement, Windemuller adamantly insisted that
it had no place in the labor agreement. The meeting
terminated with Vander Laan's telling Windemuller that
the Union would continue efforts to find language on the
profit-sharing pension plan acceptable to the Company for
incorporation into the agreement.
By letter of March 25, Vander Laan submitted three
alternate clauses (G. C. Exh. 5) relating to the
profit-sharing plan and these were discussed at a meeting
'The Company' s recognition of the Union as employee bargaining
representative was voluntarily accorded . The most recent agreement, that
expiring April 30, 1969, and presumably its predecessors , contained a
union shop clause . A decertification petition was filed June 9 and dismissed
by the Regional Director on July 15 because of the pendency of the charge
in the instant case . The petition was supported by 19 unit employees The
annual negotiations have been carried on without strikes.
11 credit Vander Laan' s testimony that this was the first time that such
cost breakdowns had been submitted in bargaining
on April 17. At that meeting, apparently only Vander
Laan and Windemuller being present, the union proposals
were not accepted nor were counterproposals made by the
Company.
Thereafter a union meeting was convened on April 24,
attended by 16 or 17 employee-members, and it was voted
that the Union would ask that the profit-sharing pension
plan be abolished and a part of its cost be translated into
the wage scale. This position was communicated to
Windemuller by Vander Laan's letter of April 25, (G. C.
Exh. 6). The parties met on April 28 and Windemuller
delivered to the union representatives a letter (G. C. Exh.
7) reiterating his position that the profit-sharing plan was
not an item for negotiation. In the interim and before the
April 28 meeting the parties orally agreed on an extension
of the labor agreement on a day-to-day basis. Although a
June 4 letter from Windemuller to the Union (Resp. Exh.
2) refers to a no-contract period, I credit Vander Laan's
testimony that the parties continued to operate under the
contract up until the hearing in the instant case.
Following the April 28 meeting, a meeting of the union
membership was held on May 6 with 18 members present
and it was voted to rescind the earlier proposal to abolish
the profit-sharing pension program and incorporated its
costs into the wage scale, in favor of incorporating the
pension profit-sharing plan into the labor agreement. This
position was communicated to the Company by letter of
May 7 (G. C. Exh. 8). No written reply was ever received
and on May 16 the Union wrote Windemuller threatening
the filing of unfair labor practice charges unless agreement
were reached by May 26. No further meetings were held
except for an informal meeting between Vander Laan and
Windemuller about July 21 at which Vander Laan
presented Windemuller with a proposal concerning the
profit-sharing plan to which, according to Vander Laan,
Windemuller replied that the proposal was in effect being
employed, but he refused to incorporate its provisions into
the labor agreement. The following morning Windemuller
informed Vander Laan that the Union proposal was not
acceptable and that he did not have a counterproposal.
There were no further discussions respecting the
profit-sharing pension plan.
It is quite plain on the evidence herein that the
Company at all material times took the position that its
profit-sharing pension plan was a subject for its unilateral
control. This position was asserted by Windemuller at the
first collective-bargaining meeting, that of March 4, and
consistently maintained thereafter. Thus, at the March 11
meeting Windemuller insisted that the formula on which
the profit-sharing pension plan amounts were based had
no place in the collective-bargaining agreement; again at
the April 28 meeting Windemuller delivered his written
position that the profit-sharing pension plan was not an
item for negotiations; finally at the July 21 meeting
Windemuller, although asserting that a Union proposal on
the subject was in fact in effect, refused to reduce the
apparent agreement to writing in the collective-bargaining
agreement.
Thus the case is one in which the Company, although
plainly basing its position in collective bargaining in part
on the costs of its profit-sharing pension plan has
adamantly insisted on unilateral control in this subject and
consistently refused to incorporate into the agreement any
items which would adversely affect the Company's
retention of unilateral control on the matter. Since it is
abundantly clear from Board and court decisions that a
profit-sharing plan is a mandatory subject of collective
bargaining , Como Plastics, Inc. 143 NLRB 151; The
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kroger Co. 164 NLRB No. 54, enfd. 401 F.2d 682
(C.A 6); cert. denied 395 U.S. 904, 1 find that the
Company by its insistence on the subject has engaged in
the unfair labor practices alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor
practices, occurring in connection with the business
operations set forth in section 1, 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 such commerce
and the free flow thereof.
agreement any understanding reached as a result of such
bargaining.
(b) Post at its Grand Rapids, Michigan, plant and
office copies of the attached notice marked "Appendix."'
Copies of said notices on forms provided by the Board's
Regional Director for Region 7, shall, after being duly
signed by the Company's president, be posted immediately
upon receipt thereof and maintained thereafter for a
period of 60 consecutive days in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to ensure that said notices are not altered,
defaced or covered by other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from receipt of this Decision, what
steps have been taken to comply with the provisions
hereof.'
V THE REMEDY
In view of the findings set forth above to the effect that
the Company has engaged in unfair labor practices
affecting commerce it will be recommended that it be
required to cease and desist therefrom and take such
affirmative action as appears necessary and appropriate to
effectuate the policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in this case I make the following:
CONCLUSIONS OF LAW
I The Company is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview
of Section 2(5) of the Act.
3. By refusing to bargain collectively with the Union as
exclusive representative of employees in the appropriate
unit, viz, all apprentices and electricians of the Company,
exclusive of all office clerical employees, guards and
supervisors as defined in the Act, with respect to the
subject of the Company's profit-sharing plan, the
Company has engaged in unfair labor practices defined in
Sections 8(a)(5) and (l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case
it is recommended that the Company , its officers,
directors , agents, successors and assigns be required to-
1. Cease and desist from:
(a) Refusing to bargain on request with the Union on
the subject of the Company' s profit-sharing pension plan.
(b) Threatening to refuse or refusing to incorporate in a
signed memorandum of agreement any understanding
reached as a result of bargaining on the aforementioned
subject.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act.
(a) On request bargain with the Union as exclusive
representative of employees in the aforesaid appropriate
unit with respect to the matter of its profit-sharing
pension plan and incorporate in a signed memorandum of
'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, recommendations , 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 In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "posted by order of the
National Labor Relations Board" shall be changed to read "posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
'In the event that this Recommended Order is 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 EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT refuse to bargain collectively with
United Construction Workers Local No. 10, Christian
Labor Association concerning the Company's
profit-sharing pension plan or any other proper subject
of collective bargaining.
WE WILL on request bargain collectively with the
aforesaid Union concerning the profit-sharing pension
plan and we will reduce to a written and signed
memorandum of agreement any understanding reached
as a result of such bargaining.
WE WILL NOT by refusing to bargain concerning the
profit-sharing pension plan or in any like or related
manner interfere with, restrain or coerce employees in
the exercise of their rights under the National Labor
Relations Act, as amended.
Dated By
WINDEMULLER ELECTRIC,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
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.
WINDEMULLER ELECTRIC, INC. 689
Any questions concerning this notice or compliance 500 Book Building, 1249 Washington Boulevard, Detroit,
with its provisions, may be directed to the Board's Office, Michigan 48226, Telephone 313-226-3244