Beverage-Air Co., 1127 (1967)

BEVERAGE-AIR CO. 1127

Beverage-Air Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Cases 11-CA-2943 and 11-CA-3011.

May 29, 1967 DECISION AND ORDER

BY MEMBERS BROWN, JENKINS, AND ZAGORIA On December 12, 1966, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that 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. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel,

Charging Party, and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs.

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 threemember 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,2 and recommendations of the Trial Examiner, to the extent consistent herewith.

The Trial Examiner found, and we agree, that at the March 9, 1966, bargaining session the parties reached oral agreement on the terms and conditions of a contract, to expire on October 30, 1966, which was ratified by the union membership on March 17.

The record clearly shows that the failure of the parties to execute a written contract embodying the agreement of the parties was attributable solely to Respondent's dilatory and obstructive tactics which cannot be isolated from its unlawful course of conduct during the bargaining negotiations. We find, therefore, that Respondent's failure and refusal on March 21, 1966, and thereafter, without justifiable reason,3 to execute the contract to which it had agreed, violated Section 8(a)(5) of the Act.

THE REMEDY

We conclude that it will best effectuate the policies of the Act to modify the remedy recommended by the Trial Examiner by ordering the Respondent to reimburse the employees, with 6 percent interest per annum thereon, for the loss of any benefits which would have accrued to them under the contract which the Respondent refused to sign; and, in the event the Union requests the Respondent to sign the aforesaid contract, the Respondent shall be required to sign the said agreement and the expiration date thereof is to be extended until 1 year subsequent to the date on which the Respondent signs it.4 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, as modified below, and hereby or-';,.:s that the Respondent, Beverage-Air Company, Spartanburg,

South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified:

1. Amend paragraph 1 by substituting the following for subparagraph (g):

   '(g) Refusing, if requested by International Union of Electrical, Radio and Machine Workers,

   AFL-CIO, to sign a written agreement embodying the terms and conditions agreed upon with said Union, and to put into effect and abide by its terms until 1 year subsequent to the date on which the Respondent signs it, or, if no such request is made, refusing, on request, to bargain in good faith with said Union as the exclusive collective-bargaining representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement.' 2. Amend paragraph 1(h) by substituting the word 'Union' for the word 'Brotherhood.' 3. Amend paragraph 2 by substituting the following for subparagraph (d):

   '(d) Upon request of the aforesaid Union, sign forthwith the written contract embodying the terms and conditions agreed upon with said Union and put into effect and abide by its terms until 1 year subsequent to the date on which the Respondent signs it. If no such request is made, bargain collectively with said Union, upon its request, as the exclusive bargaining representative of the employees in the appropriate unit, and, if an I It appears from the record that the Trial Examiner inadvertently referred to the Respondent's merit review and job upgrading program as its job progression program , and included in the July 6 bargaining session events which occurred in the July 8 bargaining session 2 The General Counsel and the Charging Party did not file exceptions to the Tnal Examiner's disposition of the Section 8(a)(1) allegations in the complaint 3 Cf Warrensburg Board & Paper Corporation, 143 NLRB 398, 404 ' Scholl Steel Products, Inc., 161 NLRB 939

   164 NLRB No. 156 understanding is reached, embody such understanding in a signed agreement.' 4. Renumber the present paragraphs 2(e) and (f) as 2(f) and (g), respectively, and add the following as paragraph 2(e):

   '(e) Reimburse all employees covered by the aforesaid contract, together with 6 percent interest per annum thereon, for the loss of any benefits which would have accrued to them under the contract which the Respondent refused to sign.' 5. Delete the second substantive paragraph of the notice attached and substitute the following paragraphs:

   WE WILL, if requested by International Union of Electrical, Radio and Machine Workers,

   AFL-CIO , sign the written contract incorporating the terms of the agreement reached with that Union to be effective until 1 year subsequent to the date on which we sign it.

   If no such request is made, we will, upon request, bargain collectively with the Union in the appropriate unit with respect to rates of pay, wages, hours of work , and other terms and conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement.

   WE WILL reimburse all employees covered by the aforesaid contract , together with 6 percent interest per annum thereon , for loss of any benefits which would have accrued to them under the contract which we refused to sign.

   WE WILL NOT state to employees that it is not necessary to join the Union and that a pay raise will be granted.

6. Add the following immediately below the signature line at the bottom of the notice:

   Note: We will notify the above -named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.

   It is further ordered that the complaint be, and it hereby is, dismissed insofar as it alleges violations other than those found by the Trial Examiner, or found herein.

   TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   RAMEY DONOVAN, Trial Examiner : International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein the Union , the IUE , or the International Union, filed a charge on January 7 , 1966, in Case 11-CA-2943, and a charge in Case 11-CA-3011 on April 18 , 1966. The General Counsel issued a consolidated complaint under date of May 20, 1966. The complaint alleges that Respondent engaged in statements and conduct in violation of Section 8(a)(1) and (3) of the Act; that Respondent failed and refused to bargain in good faith with the Union in violation of Section 8(a)(1) and (5) of the Act; that Respondent failed and refused to reinstate 21 named employees in violation of Section 8(a)(1) and (3) of the Act. Respondent, Beverage-Air Company, in its answer, denied the commission of the alleged unfair labor practices.

   The case was heard by the Trial Examiner in Spartanburg, South Carolina, on June 21-24, and 27-28, 1966. Although the case was scarcely pro forma in its nature and issues, embracing over 1,200 pages of testimony and in excess of 60 exhibits, neither party availed itself of the opportunity to make either oral argument or to file briefs.

   Upon the entire record in the case, including observation of the witnesses, the Examiner makes the following:

   FINDINGS AND CONCLUSIONS

1. JURISDICTION Respondent is a Delaware corporation engaged, at its plant in Spartanburg, South Carolina, in the manufacture of beverage cooling equipment. During a representative 12-month period, Respondent received raw materials from points outside the State of South Carolina valued in excess of $50,000. During the same period, Respondent sold and shipped finished products to points outside the State of South Carolina valued in excess of $50,000.

   Respondent is engaged in commerce within the meaning of the Act.

   2. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act.

   3. THE ALLEGED UNFAIR LABOR PRACTICES A. The Bargaining Pursuant to a Board election, the Union was certified, on April 26, 1965, as the exclusive bargaining agent for the following unit of Respondent's employees: All production and maintenance employees at the Spartanburg, South Carolina, plant, including truckdrivers, machine maintenance men, materials control clerk, and materials scheduling clerk, but excluding office clerical employees, draftsmen, engineering employees, guards, and supervisors as defined in the Act.

   On May 21, 1965, Williams, field representative of the Union, wrote to Buffington, president of the Company, suggesting that contract negotiations commence on any day during the week of May 16. The letter also requested a list of employees in the unit, by name, classification, rate of pay, and date of hire. Also requested was 'any insurance plan, pension...