Cartwright Hardware Co.

National Labor Relations Board - Board Decisions

May 19, 1977

229 N.L.R.B. 781 (N.L.R.B. 1977)

CARTWRIGHT HARDWARE CO.
Cartwright Hardware Co., Inc. and United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada, Local 412, AFL-CIO. Case 28-CA-3844
May 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On October 26, 1976, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel,
Charging Party, and Respondent filed exceptions
and supporting briefs. Respondent also filed reply
briefs to the General Counsel's and Charging Party's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
We adopt the Administrative Law Judge's conclu-
sion that Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally changing the existing terms
and conditions of employment with full knowledge
of the Union's majority status in an appropriate
bargaining unit. Contrary to the Administrative Law
Judge, however, we further find that Respondent
violated Section 8(a)(5) and (I) by withdrawing its
recognition of the Union as the collective-bargaining
representative of Respondent's journeyman and
apprentice plumbers, all of whom were union
members, by refusing to bargain with the Union
concerning the terms of an agreement to succeed the
one that expired on March 31, 1976,' and by
bypassing the Union and engaging in direct individu-
al bargaining with its plumbing employees. Also in
disagreement with the Administrative Law Judge, we
find that Respondent constructively discharged
i Unless otherwise indicated, all dates herein refer to 1976.
2 Barenders, Hotel, Motel and Restaurant Emplovers Bargaining Associai-
tion of Pocatello, Idaho and its Employer-Members, 213 NLRB 651, 652
(1974), citing Shamrock Dairy, Inc., et al., 119 NLRB 998 (1957). and 124
NLRB 494 (1959). enfd. 280 F.2d 665 (C.A.D.C.), cert. denied 364 U.S 892
(1960).
3 Bartenders Association of Pocatello, supra,' Barrington Plaza and
Tragniew, Inc., 185 NLRB 962, 963 (1970), enforcement denied on other
grounds sub nom. N.LR.B. v. Tragniew, Inc. and Consolidated Hotels of
California, 470 F.2d 669 (C.A. 9, 1972); Terrell Machine Company, 173
NLRB 1480. 1480-81 (1969), enfd. 427 F.2d 1088, 1090 (C.A. 4, 1970), cert.
denied 398 U.S. 929 (1970).
4 United States G(psum Company, 221 NLRB 530, 537 (1975); Salina
Concrete Products, Inc., 218 NL.RB 496, 498 (1975): Cantor Bros., Inc., 203
NLRB 774, 778 (1973).
229 NLRB No. 110
employees Schwanke, Lovato, and Saiz in violation
of Section 8(a) 3) and (1) of the Act.
Respondent and the Charging Party have had a
contractual relationship for at least the past 30 years.
The most recent collective-bargaining agreement was
effective from May 1, 1974, through March 31. It is
well settled that the existence of a prior contract,
lawful on its face, raises a dual presumption of
majority-a presumption that the union was the
majority representative at the time the contract was
executed, and a presumption that its majority
continued at least through the life of the contract. 2
Following expiration of the contract, as here, the
presumption continues and, though rebuttable, it is
sufficient to establish, prima facie, a continuing
obligation on the part of the employer to bargain
with the union. 3 Following expiration of a collective-
bargaining agreement, therefore, an employer vio-
lates Section 8(a)(5) and (1) by repudiating its
collective-bargaining relationship with the union
unless it can show a reasonably based doubt as to the
continuing majority support for its employees'
representative. 4
Here, however, as recognized by the Administra-
tive Law Judge, Respondent indicated its awareness
that the Union represented a majority of its plumb-
ing department employees at all times. 5 Nonetheless,
by letter dated January 28, Respondent's president
and general manager, William G. Loomis, advised
the Union that it wished to terminate the contract at
its expirations and that Respondent thereafter would
"no longer operate a union shop." 7 That this letter
demonstrated Respondent's intention to rid itself of
the Union and the obligations inherent in its
collective-bargaining relationship with the Union
was evidenced during the latter half of March when
Respondent unlawfully bypassed the Union and
unilaterally informed the employees that modified
wages, fringes, and working conditions would prevail
as of April 1.
Respondent never conveyed a willingness to
negotiate with the Union concerning the terms of
employment after March 31. During a brief meeting
with Loomis on March 30, Union Representative
Rivera presented the amendments to the contract
s Although of no legal significance in the context of this case, it is
noteworthy that the continuing presumption of the Union's majority status
is strengthened by evidence that, on March 31, the day the contract
terminated, the Union obtained authorization cards from all five employees
in the bargaining unit. An additional card was acquired from helper Mike
Fegan who had not been included in the unit.
6 The letter complied with the contract's requirement that either party
wishing to terminate the agreement give the other party 60 days' notice of
cancellation.
I The letter stated: "This letter is to notify you that as of Apnl 1. 1976.
we will no longer operate a union shop and we wish to terminate the labor
agreement between us and Local Union #412 as of March 31, 1976."
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that were negotiated with the Mechanical Contrac-
tors Association of New Mexico (MCA). 8 When
asked if he was ready to sign a new contract, Loomis
said no and explained his problem in obtaining
competent plumbers under the contract's exclusive
hiring hall provision. Loomis added, according to
Rivera, that "he had been thinking about going non-
union and ... would probably go ahead and go that
route." On March 31, Loomis met with Rivera and
Union Business Manager Carl Smith. According to
Loomis, Smith expressed his desire to discuss the
parties' differences and to establish the terms of
employment. During this meeting, Smith also sug-
gested a period of time in which to negotiate an
agreement. Loomis told Smith that he would "talk it
over with [his] associates, have a meeting with the
plumbers that evening and . . . give [Smith his]
reply." At the end of the workday on March 31,
Loomis convened the plumbers and told them they
could all continue to work without a contract.9
Although Respondent was not lawfully bound to
extend the contractual terms that expired on March
31, it was obligated to negotiate with the Union
concerning the terms of employment after March 31.
This Respondent failed to do. Probative in this vein
is the admission of Respondent's plumbing depart-
ment manager, Robert Blanchard, that, on the
morning of April 1, Loomis telephoned Blanchard
and said that he had decided not to stay in the
Union. Blanchard explained that he did not put the
plumbers to work that morning because Loomis told
him that he was awaiting a call from Smith' ° and
that Loomis would tell Smith that "the company
would not negotiate any further with the Union.
Loomis felt the union had been properly notified of
our intent to go non-union and there was no point in
negotiating any further or extending the contract
thirty days as Smith wanted to do." 11
When viewed in this light, the Administrative Law
Judge's characterization of Respondent's January 28
letter as "inartfully drafted" appears untenable. In
our judgment, the letter reflects Respondent's deci-
sion to withdraw recognition from the Union and to
avoid its bargaining obligation with the undisputed
representative of a majority of its employees in what
was, in effect, a plumbing department unit; a
decision which Respondent sought to implement
through its unlawful course of conduct during the
I Respondent was an individual nonmember signatory to a labor
agreement negotiated between the MCA and the Union.
9 Loomis testified that he was quoting Smith in telling the plumbers that
they all could continue to work without a contract.
'o Apparently Smith did not contact Loomis on Apnl I and therefore
was not informed of Loomis' decision until he received a call from Loomis
on April 2.
" At the hearing, Blanchard admitted making these statements in an
affidavit given to a Board agent on April 21.
latter half of March and thereafter. We find,
therefore, that Respondent violated Section 8(a)(5)
and (1) by withdrawing recognition from the Union
and by failing to bargain with the Union concerning
the terms of employment after March 31.
In making this determination, we reject the
Administrative Law Judge's finding that the Union
did not make a valid request to bargain in that the
Union's only request was conditioned upon Respon-
dent's first signing a 30-day extension of the old
agreement. Seeking a period of time in which to talk
about their problems, Union Representative Smith
asked Loomis if the existing agreement could be
extended for 30 days. The Administrative Law Judge
apparently twisted this bargaining request into an
immutable demand that Respondent sign a written
extension of the old agreement. There is no evidence
to support this interpretation. As indicated, Loomis
acknowledged Smith's desire to discuss their differ-
ences. Respondent, however, made no counteroffers
of any kind, deciding instead to forgo all negotia-
tions. Loomis' own testimony belies the conclusion
that the Union conditioned negotiations on the
extension of the old agreement. When asked whether
Smith had asked him to extend the old agreement for
a 30-day period of time, Loomis responded: "No, he
said that he had the authority to allow the plumbers
to work during this period and that we could operate
until we came to an agreement under those condi-
tions." 12
We also disagree with the Administrative Law
Judge that, by not responding to Respondent's
January 28 letter until March 30 after negotiations
with the MCA were concluded, the Union was
"negligent, lax and much more at fault than
Respondent in the breakdown of the bargaining
relationship." During its 30-year contractual rela-
tionship with the Union, Respondent, as a nonmem-
ber signatory to agreements negotiated between the
Union and MCA, would put such agreements into
effect on their effective dates and then individually
sign them much later. Loomis' own testimony makes
clear that he signed the last two contracts several
months after their effective dates.13 Here, in accord-
ance with years of past practice, the Union negotiat-
i2 Had Smith requested that Respondent maintain the old terms and
conditions of the expired contract while negotiations took place, he would
have been within his rights. See, e.g., N.LR.B. v. Benne Katz, d/b/a
Williamsburg Steel Products Co., 369 U.S. 736 (1962).
13 Loomis stated that he signed the most recent agreement on January 8,
1975, although its terms were effective May 1, 1974. Similarly, the preceding
agreement was signed on October 25, 1972, although its terms were effective
April 1,. 1972.
782
CARTWRIGHT HARDWARE CO.
ed the MCA industry contract first and then went to
see Loomis on March 30.14 Respondent neither
expressed its desire to deviate from this past practice
nor asked the Union to bargain at anytime. When
viewed in this context, that the Union waited until
March 30 to contact Respondent does not constitute
a waiver of the Union's bargaining rights; nor does it
excuse Respondent's unlawful repudiation of its
collective-bargaining obligation.
We also find no merit in the Administrative Law
Judge's suggestion that the Union's alleged failure to
provide competent help, without more, alters the
legal conclusions to be drawn in this case. While
Respondent may have had a legitimate business
concern which could form the basis for negotiating a
new hiring provision in a new agreement, it affords
no justification for Respondent's unlawful course of
conduct.
Rather, in our view, Respondent's actions were
unlawfully designed to create conditions that made it
impossible for its plumbers to maintain their union
membership and continue to work for Respondent.
Thus, during the same period in March that
Respondent unilaterally informed the plumbers what
wages, fringes, and working conditions would prevail
as of April 1, Respondent asked the employees which
of them would continue working after the contract
expired. Union Steward Schwanke informed Loomis
that the union bylaws prohibited union members
from working in a nonunion shop. Schwanke added
that he could not afford to terminate his union
membership because of the benefits he would lose.
Around the same time, Loomis instructed Plumbing
Department Manager Blanchard to interview pros-
pective replacements for those plumbers who decided
not to work after April 1. Respondent also began
dealing directly and individually with the plumbers
relative to its unilateral proposal. Loomis admitted
that he intended his proposal to replace the union
contract. Either in typewritten or handwritten form,
Respondent's unilateral proposal was distributed and
discussed with each of the plumbers prior to March
31.'5 Though related to Respondent's unilateral
institution of wages and terms of employment, we
further find that Respondent's individual bargaining,
in derogation of the Union as the employees'
bargaining agent, violated Section 8(a)(5) and (1).16
1" Negotiations with the MCA were not concluded until Saturday,
March 27. The Union. which has its headquarters in Albuquerque and a
branch office in Las Cruces, then met with Respondent in Santa Fe.
Is Loomis testified that, prior to March 31, he personally discussed his
proposal with plumbers Schwanke and Phillipps as well as apprentice Buster
Patty. Oii March 27 or 28, plumber Lovato was given an individual proposal
by management representative Charles R. Rich. Lovato indicated that he
was offered $6.50 an hour although his hourly wage was S9.93 at the time.
'6 See, e.g., Chase Manufacturing, Inc., 200 NLRB 886 (1972); Johnson
Electric Company, Inc.. and William A. Johnson and Albert M. Thompson
d/bla Johnson Electric Company, 196 NLRB 637, 643 (1972).
Through its unilateral proposal and individual
bargaining, Respondent reinforced its stated intent
of January 28 to "no longer operate a union shop" as
of April 1. That the plumbers were offered a
Hobson's choice of accepting the reduced wages and
benefits offered by Respondent and abandoning
their union membership and representation or of
terminating their employment is evidenced by the
testimony of Respondent's representatives. Thus,
Supervisor Rich,'7 testifying with respect to discus-
sions he had with Loomis and Blanchard regarding
termination of the contract and whether the employ-
ees would remain in the Union, stated: "[T]hey had a
choice, that we would present them with a proposal,
should they choose to accept and go to work for us,
or they could remain with the union." Blanchard
similarly testified:
We gave them a choice, saying here is the
proposition we present to you. Do you want to
work for us on an open shop basis and if it is, here
is [sic] schedule of pay and benefits.
Q. And if they didn't want to, they could just
go down the road?
A. If they didn't that was their choice.
In presenting this dilemma, Respondent risked
precipitating forced resignations. Respondent was
informed that the union bylaws proscribed work in a
nonunion shop. It is common knowledge that long-
term union members do not readily abandon the
benefits which they have accrued through years of
union membership. Illustrative is the situation of
Clyde Phillips who was a union member for the
entire 31 years he worked for Respondent. Phillips'
testimony expresses his desire to remain in the
Union, as well as to continue working for Respon-
dent. At Respondent's March 31 meeting with the
plumbing department employees, which Supervisor
Rich testified was called "to find out where the
plumbers stood, which ones would remain with the
Union. If no agreement was reached, which ones
would stay with the Company," Phillips said that he
would stay with the Union and not with the
Company.18 When the plumbing department em-
17 At the time of the hearing. Charles R. Rich had worked 28 months for
Respondent. His duties involved appliance sales, plumbing, recordkeeping.
and advertising. Rich testified that he considered himself a part of
management. The record further demonstrates that Rich has one employee
directly under his direction and control. In this capacity. Rich assigns work,
disciplines, and makes effective recommendations concerning wage increas-
es. We find therefore that Charles Rich is a supervisor within the meaning of
Sec. 2(1 ) of the Act.
it On April 7 or 8. Phillips returned to work for Respondent. Bargaining
(Continued)
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees reported for work on April 1,19 no plumbing
assignments were made because, as indicated, Re-
spondent was waiting to inform the Union of its
decision not to extend the contract and to forgo
further negotiations. Upon receiving word of Re-
spondent's decision, Union Steward Schwanke pro-
posed that the employees leave after receipt of their
paychecks. Prior to leaving, Schwanke asked for
termination slips for the employees, a request which
Blanchard refused.20
Based upon the foregoing, we conclude that, by
requiring its employees to accept unilaterally im-
posed changes in wages and other working condi-
tions and by repudiating its bargaining obligations in
violation of Section 8(a)(5) and (1), Respondent
created a situation which made it impossible for its
plumbers to continue in the Company's employ and
retain their union membership. We therefore find, in
agreement with the General Counsel's and Charging
Party's assertions, that Respondent constructively
discharged employees Schwanke, Lovato, and Saiz 21
in violation of Section 8(a)(3).22
Contrary to the complaint's allegation, however,
we do not find that Respondent unlawfully terminat-
ed employee Fegan. Unlike the other discriminatees,
Fegan was employed as a helper and was not
included in the bargaining unit and was not covered
by the terms of the contract that expired on March
31. Accordingly, Respondent's actions and conduct,
in violation of Section 8(a)(5) and (1), did not have a
direct bearing on Fegan's employment.23
THE REMEDY
Having found that Respondent violated Section
8(a)(5) and (1) by withdrawing its recognition of the
Union as the collective-bargaining representative of
Respondent's journeyman and apprentice plumbers,
by refusing to bargain with the Union concerning the
terms and conditions of employment after March 31,
1976, by unilaterally changing the existing terms and
conditions of employment with full knowledge of the
Union's majority status in an appropriate unit, and
by circumventing the Union and engaging in direct
individually with Loomis, Phillips was able to obtain an hourly wage of
$9.25 as compared to the $8 per hour unilaterally offered by Loomis.
Phillips also bargained with Loomis over certain fringe benefits which
Phillips would lose by quitting the Union.
19 Neither Phillips nor Patty, both bargaining unit members, came to
work on April I because both understood Union Representative Rivera to
have told them the day before that, if no agreement was signed, March 31
would be the last day of work. Phillips added that he "didn't want to break
any rules."
20 Blanchard testified that he refused to give the employees termination
slips because they had voluntarily quit. It is noteworthy, however, that
Blanchard also acknowledged that, in the past, plumbers who left of their
own accord were given termination slips marked "quit."
21 An 8(aX3) allegation is not raised with respect to the other members of
the bargaining unit, employees Phillips and Patty. Both returned to work for
Respondent on April 7 or 8 and were still working at the time of the hearing.
individual bargaining with its employees, we shall
order it to cease and desist therefrom and to take
certain affirmative action in order to effectuate the
policies of the Act. We shall order Respondent to
bargain with the Union, upon request, regarding
terms and conditions of employment after March 31,
to revoke its unilateral changes, and to make
restitution to its employees for any losses suffered as
a result of Respondent's unilateral imposition of
wages and terms and conditions of employment, with
interest at 6 percent per annum. We shall also order
that Respondent preserve, and, upon request, make
available to the Board or its agents, all records
necessary to analyze the amount of wages and
benefits, if any, accruing to employees under this
Order, and to compute the amount of backpay due
under the terms of this Order.
Having found that Respondent unlawfully termi-
nated employees Jack Schwanke, Arthur Saiz, and
Edson Lovato on April I, we shall order that
Respondent offer them immediate and full reinstate-
ment to their former jobs or, if such jobs no longer
exist, to substantially equivalent positions, and make
each of them whole for any earnings lost as a result
of Respondent's unlawful action by payment to him
of a sum of money equal to that which he would have
earned from the aforesaid date of discharge to the
date of Respondent's reinstatement offer, less his net
earnings during such period. Backpay ordered herein
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Cartwright Hardware Co., Inc., Santa Fe, New
Mexico, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
22 Marquis Elevator Company, Inc., 217 NLRB 461, 468 (1975); John E.
Holko d/b/a Lifetime Shingle Company, 203 NLRB 688, 693 (1973); Johnson
Electric Company, Inc.. and William A. Johnson and Albert M. Johnson d/b/a
Johnson Electric Company, 196 NLRB 637, 644 (1972).
23 As indicated, on March 31, Fegan signed an authorization card along
with the other employees who were members of the bargaining unit. Upon
quitting on April 1, Fegan stated: "Well, I don't want to work for a
company like this, that lets men go after working twenty to thirty years
.... . It appears therefore that Fegan's status was, in effect, that of a
sympathetic unfair labor practice striker. It is settled Board policy that
unfair labor practice strikers are not entitled to backpay until an
unconditional request for reinstatement is made. Astro Electronics, Inc., 188
NLRB 572, 573 (1971); Sea-Way Distributing, Inc., 143 NLRB 460 (1963).
Inasmuch as it does not appear that Fegan ever requested reinstatement
prior to resuming work with Respondent about the middle of June, Fegan,
as a practical matter, could not be accorded a further remedy in any event.
784
CARTWRIGHT HARDWARE CO.
(a) Failing or refusing to recognize and bargain
collectively, upon request, with United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, Local 412, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit concerning wages, hours, and other
terms and conditions of employment after March 31,
1976:
All journeyman and apprentice plumbers, steam-
fitters, pipe-fitters, refrigerator fitters, gas fitters
and lead burners employed by the Employer in
Santa Fe, New Mexico; excluding all other
employees, office clerical employees, watchmen,
guards and supervisors as defined in the Act.
(b) Unilaterally changing the wages and other
terms and conditions of employment of the employ-
ees in the aforesaid unit without notifying and
bargaining with the Union.
(c) Bargaining directly and individually with any
employees in the aforesaid unit.
(d) Discouraging membership in the aforesaid
labor organization by constructively discharging its
employees through the imposition of illegal condi-
tions of employment or by otherwise unlawfully
discriminating in regard to their wages and terms and
conditions of employment.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Reinstate the wages and all other terms and
conditions of employment which existed when the
contract expired on March 31, 1976.
(b) Recognize and, upon request, bargain collec-
tively with the aforesaid labor organization as the
exclusive bargaining representative of the employees
in the above-described unit concerning wages, hours,
and other terms and conditions of employment, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
(c) Make restitution to the employees in the
appropriate unit for any wages and benefits which
may have been lost by virtue of its unilateral
implementation of terms and conditions of employ-
ment in the manner set forth in the portion of this
Decision and Order entitled "The Remedy."
(d) Give notice to and bargain with said labor
organization before implementing any future chang-
es in the working conditions of said employees.
(e) Offer Jack J. Schwanke, Arthur Saiz, and Edson
P. Lovato immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may
have suffered by reason of the unlawful discrimina-
tion against them in the manner set forth in the
section of this Decision and Order entitled "The
Remedy."
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
wages and benefits accruing to employees under this
Order, and to analyze the amount of backpay due
under the terms of this Order.
(g) Post at its facility in Santa Fe, New Mexico,
copies of the attached notice marked "Appendix." 24
Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly
signed by its authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
24 In the event that 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 National 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
WE WILL NOT refuse to recognize and bargain
collectively, upon request, with United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, Local 412, AFL-CIO, as the
exclusive bargaining representative of:
All journeyman and apprentice plumbers,
steamfitters, pipe-fitters, refrigerator fitters,
gas fitters, and lead burners employed by the
Employer in Santa Fe, New Mexico; exclud-
ing all other employees, office clerical
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, watchmen, guards and supervi-
sors as defined in the Act.
WE WILL NOT unilaterally change wages or
other conditions of employment without notice to
and consultation with the Union.
WE WILL NOT bargain directly and individually
with any employees in the aforesaid unit.
WE WILL NOT discourage membership in the
aforesaid labor organization by constructively
discharging employees through the imposition of
illegal conditions of employment or by otherwise
unlawfully discriminating in regard to their wages
and terms and conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed in Section 7 of the Act.
WE WILL reinstate and give retroactive effect to
all terms, wages, and general working conditions
of the labor agreement that existed between the
Union and the Employer and which expired on
March 31, 1976, until such time as a new
agreement is negotiated or all parties have fully
complied with their obligations under the law.
WE WILL recognize and, upon request, bargain
collectively with the aforesaid labor organization
as the exclusive bargaining representative of the
employees in the above-described unit concerning
wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
WE WILL make restitution, with interest, to the
employees in the aforesaid unit for any wages and
benefits which may have been lost by virtue of
any unilateral changes in the terms and working
conditions of employment which we made, as is
required by the remedy ordered by the National
Labor Relations Board.
WE WILL give notice to and bargain with said
labor organization before implementing any
future changes in the working conditions of said
employees.
WE WILL offer Jack J. Schwanke, Arthur Saiz,
and Edson P. Lovato immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority and other
rights and privileges, and WE WILL make them
whole for any earnings lost by reason of our
unlawful discrimination against them, together
with 6-percent interest.
CARTWRIGHT HARDWARE
CO., INC.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard in Albuquerque, New Mexico, on July 27 and
28, 1976.1 The charge was filed on April 2 by the United
Association of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and
Canada, Local No. 412, AFL-CIO, hereinafter called the
Union. The complaint was issued on April 11 alleging that
Cartwright Hardware Co., Inc., hereinafter referred to as
Respondent or Employer, violated Section 8(aXl), (3), and
(5) of the National Labor Relations Act, as amended
(herein Act).2
Issues
1. Was Respondent's refusal to sign an extension of the
contract that expired on March 31, 1976, a refusal to
bargain?
2. Did Respondent have an obligation to continue to
bargain with the Union after April I? If so, was the
unilateral change in working conditions violative of the
Act?
3. Is Respondent guilty of having unlawfully dis-
charged (constructively or otherwise) employees Schwanke,
Fegan, Lovato, and Saiz?
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case, and from my
observation of the witnesses and their demeanor, I make
the following: 3
FINDINGS OF FACT
I. JURISDICTION
At all times material herein Respondent has maintained
its principal office and place of business at 120 Lincoln
Street, Santa Fe, New Mexico, where it has been continu-
ously engaged in the business of selling hardware, appli-
ances, and plumbing fixtures; servicing of appliances and
plumbing fixtures; and plumbing contracting in the
building and construction industry. During the past 12-
All dates, hereinafter, will refer to the year 1976, unless otherwise
indicated.
2 At the commencement of the hearing, the Respondent changed its
answer and admitted the allegations contained in pars. 4, 5, 6, 7, and II of
the General Counsel's complaint. At the same time, General Counsel was
permitted to amend the complaint in several particulars, and the specific
amendments are set forth in G.C. Exh. 2.
3 The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses and the
teaching of N. LR.B. v. Walton Manufacturing Company & Loganville Pants
Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in
contradiction to the findings herein, their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in the light of the entire record.
786
CARTWRIGHT HARDWARE CO.
month period, which period is representative of Respon-
dent's operations at all times material herein, Respondent
has, in the course and conduct of its business operations,
purchased goods and materials valued in excess of $50,000
which were transported in interstate commerce and
delivered to its place of business in Santa Fe, New Mexico,
directly from States of the United States other than the
State of New Mexico. During the same period of time, the
Respondent in the course and conduct of its business
operations sold and distributed from its place of business in
Santa Fe, New Mexico, appliances, hardware, and plumb-
ing fixtures valued in excess of $500,000. On the basis of
these admitted facts I herewith find that the Respondent is
now, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings admit, and I herewith find, the Union to
be, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Evidence
The History of Bargaining
Respondent acknowledged that it has had a contractual
relationship with the Union for a period of at least the past
30 years. Respondent has been an individual signatory to a
labor agreement negotiated between the Mechanical
Contractors Association of New Mexico, hereafter MCA,
and the Union; the most recent agreement having covered
the period May 1, 1974, until midnight March 31. (See G.C.
Exh. 3.) Respondent acknowledged being signatory to a
similar agreement covering the period from April 1, 1972,
until midnight March 31, 1974. (See G.C. Exh. 4.) At the
significant and relevant times there were five employees in
the bargaining unit. These five employees were John
Schwanke, Edson Lovato, Athur Saiz, Clyde Phillips, and
Granville (Buster) Patty. Buster Patty was an apprentice,
the others were journeymen plumbers; in addition there
were three other employees of Respondent not included in
the bargaining unit who worked as helpers and/or laborers
in the plumbing department - namely, Mike Fegan, Ron
Vigil, and Juan Sanchez.
In a letter dated January 28, 1976, from William G.
Loomis, president and general manager of Respondent, the
Union was advised that Respondent wished to terminate
the contract at its expiration and in the future would no
longer operate a union shop (see G.C. Exh. 5). Receipt of
the letter by the Union shortly after mailing is not disputed.
According to the testimony of Loomis the letter was mailed
to comply with article I, section 3, of the then current
agreement (see G.C. Exh. 3), and, although inartfully
drafted, he anticipated some response from the Union in
order that he might "negotiate" with the Union relative to
4 There was some testimony offered tending to show that incompetency
had resulted in some $17.000 loss, or workover work being done by
Respondent. I do not regard this as particularly relevant except as some
corroboration of Respondent's claim that it had a bona fide "beef' or
problem to discuss with the Union.
his concern and problems regarding the Union's apparent
inability to provide competent qualified journeymen
plumbers. 4
Respondent did not hear from the Union either by letter
or orally, directly or indirectly, until March 30 - I day
before the contract terminated.
Meanwhile sometime during the last 2 weeks of March,
Respondent, having concluded that the Union was no
longer interested in its five employees, caused to be made
known to the employees the wages and fringes that would
prevail beginning April I and sought to get some
expression from the employees as to which ones would
continue working after the contract expired. (See G.C. Exh.
13. There is some question as to whether this particular
document was shown to the employees or whether the
employees were shown a handwritten piece of paper with
essentially the same information.)
There were indications from the employees - particular-
ly Schwanke who was the union steward - that the
employees would not work without a contract. Robert
Blanchard, manager of the plumbing department, inter-
viewed (but did not hire) at least two or three prospective
employees the last few days of March.
During the last 2 weeks before the contract expired,
Schwanke acknowledged having spoken to Smith and/or
Rivera - the union representative - on several occasions
in an effort to impress on them the seriousness of the
situation and the urgency of having someone come to
Santa FeS to try and resolve the problems with Respon-
dent. On one such occasion Clyde Phillips joined in the
telephone conversation and urged Smith to come to Santa
Fe. Smith's excuse for being unable to come to Santa Fe
was that he was deeply involved in negotiations with the
MCA and had nothing to talk to Respondent about until
the statewide contract was settled. However - and I deem
it significant - no one ever communicated to Respondent
why there was total silence from the Union.
On March 30 Rivera came to Santa Fe and, in the
company of Schwanke, called on Loomis. The meeting was
reasonably brief. Rivera presented the amendments
(changes) that had been negotiated with MCA and asked if
Loomis was ready to sign a new contract. Loomis said no,
he wasn't ready to sign a new contract and proceeded to
explain his problem regarding the Union's apparent
inability to provide competent help and the "straitjacket"
that he was forced to operate under by obtaining his
employees from the Union (see art. XXV, sec. 2, Exclusive
Hiring, at p. 21 of G.C. Exh. 3). The meeting lasted no
more that 15 or 20 minutes.
The next day Mr. Carl Smith, who is the business
manager of the Union, and Rivera returned to Santa Fe to
see Loomis. At this meeting Smith asked Loomis to agree
to extend the old contract for 30 days and during that 30
days they would see if they could work out their problems.
Before seeing Loomis, however, Smith and Rivera visited
the employees and obtained union authorization cards
from all five employees in the bargaining unit and Mike
5 The Union did not have offices in Santa Fe, but did have its
headquarters in Albuquerque and a branch office in Las Cruces.
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fegan, a helper. (See G.C. Exhs. 6 through 11.) Smith
testified that he had the cards and the amendments to the
MCA contract in his hands and plainly visable at the time
he was talking to Loomis. 6
This meeting was reasonably brief. Loomis told Smith of
his problems and expressed doubt that his problems could
be resolved by extending the contract for 30 days, but
further stated that he would talk it over and call Smith the
next morning.
Late that afternoon following work, Messrs. Loomis,
Blanchard, and Rich met with employees Schwanke,
Lovato, Saiz, Fegan, Patty, and Phillips. The purpose of the
meeting (as can best be perceived from testimony that was
not too precise) was to inform the employees that the
Union had asked that the contract be extended for another
30 days during which time the parties would endeavor to
work out their differences and to ascertain how many of
the employees would come to work if the contract was not
extended. However, the meeting was not an orderly one,
and nothing much resulted except loud and confusing talk.
For example, Blanchard's testimony relative to this
meeting follows:
Q. Who did most of the talking at the meeting?
A. Mr. Schwanke.
Q. Did Mr. Loomis make any statements at the
meeting?
A. Yes, he made a few statements.
Q. Other than Mr. Loomis and Mr. Schwanke, did
anybody else speak?
A. Clyde Phillips did.
Q. Are they the only three?
A. Oh, there wasn't too much said by anyone else I
can remember.
Q. Can you remember the substance of what Mr.
Loomis said?
A. Not off hand, there was some. He was trying to
say something, and Jack Schwanke wouldn't let him.
He would interfere every time Mr. Loomis would try to
talk, and it was kind of a confusing meeting.
* * *
Q. Goahead.
A. Mr. Loomis came down, the meeting started
and it was sort of a, well, discussing the proposal and at
that time, like I say, I'm not pointing the finger at
anybody, but he did try to interfere with Mr. Loomis,
what he was trying to say time and time again. Phillips
tried to say something and he did the same thing, and
Mr. Loomis got up twice to walk out because he
couldn't stand it any longer.
Q. Did Mr. Loomis mention the contract proposal
or the proposal that Mr. Smith had made to extend the
contract for 30 days?
A. Yes.
Q. Did he say that he had made any decision on
that?
A. I don't know if there was any mention of the
contract. The contract expired at midnight, and as I
6 While there was no testimony that Loomis actually examined the cards,
it is of no real significance because Loomis does not deny that the Union
represented a majority of the employees in the plumbing department.
understood it, he instructed his men to come back to
work. It was explained to him, we might have
somebody else working there nonunion and Carl Smith
said that was fine and dandy. You could have all of the
boys working together, union and nonunion.
Q. What I'm asking is, did Mr. Loomis say he had
made any decision to accept Carl Smith's proposal to
extend the contract for 30 days?
A. Not at that time.
Q. Or did he say he had made a decision?
A. Not at that time.
Q. He had not made a decision?
A. Not to me.
Q. Did he say anything to the plumbers about that?
A. No.
The relevant testimony of Phillips regarding this meeting
follows:
JUDGE RASBURY: Just try and tell us what was said at
the meeting, unless you are about to tell us what you
were told at the time you were told there would be a
meeting.
THE WinNEss: Well, I just knew there was going to
be a meeting, May I say the meeting was to find out if
any of us thought about staying with the company?
JUDGE RASBURY: All right. Now, what was said and
by whom?
THE WITNESS: There was a great deal said that I
can't recall but may I say that I told Mr. Loomis and all
that was there, at that particular time, my decision and
what I planned on doing at that particular time, was to
stay with the Union. And, there was discussion back
and forth between Mr. Loomis and Mr. Schwanke and
I had a fairly hard time saying just what I wanted to
say, and that is what I wanted to tell Mr. Loomis -
that at that particular time, I was planning on staying
with the Union.
JUDGE RASBURY: Did you ever get to say that?
THE WirNEss: Yes, sir. I had to ask a man if he
would be quiet for a moment until I said that, and when
I said that, I let other people argue, and I listened
because I had no argument with Mr. Loomis, I had no
argument with any other people.
JUDGE RASBURY: Who did most of the talking at this
meeting?
THE WITNEss: Mr. Loomis and Mr. Schwanke.
JUDGE RASBURY: As between Mr. Loomis and Mr.
Schwanke who did the most talking?
THE WITNESS: I really couldn't say. It was a
discussion that wasn't too fair ...
JUDGE RASBURY: Do you recall there being anything
more said at that meeting other than what you have
already told us?
THE WrrmEss: There was a statement made, Mr.
Schwanke promised that he would see if he could get
two qualified men up there, and he asked Mr. Loomis,
if he did, would he sign the contract, and Mr. Loomis
replied, "Yes."
788
CARTWRIGHT HARDWARE CO.
Again, during the testimony of Charles Rich, the
following questions and answers regarding the meeting
with the employees on March 31 occurred:
JUDGE RASBURY: Now, that's not what was asked.
That's a feeling you came away from the meeting with.
Tell us, if you can recall. If you can't, say so. Who
started the meeting, what did whoever started the
meeting say to the employees, what did the employees
say back to that person? That is what we are after.
THE WITNESS: Well, Mr. Loomis started the meeting,
and qualified the meeting, as the purpose of it was to
find out where the plumbers stood, which ones would
remain with the Union. If no agreement was reached,
which ones would stay with the Company. There were
some rather violent exchanges of words, some tempers
were raised.
JUDGE RASBURY: All right. Who raised their tem-
pers, and what did they say when they did that?
THE WIrNESS: Jack Schwanke for one.
JUDGE RASBURY: Did you recall what he said?
THE WrrNEss: He said that there were certain things
they could do and that they couldn't do, and when Mr.
Loomis tried to get-
JUDGE RASBURY: (Interrupting): Who did he mean
when he said "they?"
THE WITNESS: The Union members, I would say.
And that when Mr. Loomis questioned him as to what
these things were, he said they were secret bylaws, and
he could not divulge that information. Mr. Loomis,
then, got a little irate, and we were supposed to, or he
was supposed to explain his side of it, but could get no
return explanation, and even got up and walked out of
the room and turned around and came back in, and
Clyde Phillips, at that time, said that he would stay with
the Union, that he would not stay with Cartwright, and
I guess, I can't remember specifically anything that the
others said. Much of the time, two or three people were
talking at one time, and it's a little difficult to put it all
together, just who said what.
It does seem clear, however, that no decision as to
whether Loomis would, or would not, agree to an extension
of the contract was announced to the employees at the
meeting on the afternoon of March 31. Loomis testified
that he did decide after leaving the meeting that he would
not extend the contract and called Smith in Albuquerque
to advise him of his decision, but was unable to reach him.
Smith's testimony was corroborative in that Smith did
receive a message that Loomis had tried to reach him on
the 31st, and he in turn attempted once or twice to return
the call but received busy signals. The following morning,
I However, the testimony seems to be in accord that Smith made no
effort to return Loomis' call on April 1, and thus, did not have knowledge of
Loomis' decision until he (Smith) received a call from Loomis on April 2.
s In my opinion, the statement made by Blanchard in his affidavit is not
necessarily inconsistent, or at variance, with his testimony at the hearing.
Not sending the men out because he felt the Union had been properly
notified and there was no point in negotiating or extending the contract.
would not eliminate the necessity of waiting for a final decision from Smith
and/or Loomis on the morning of April 1.
9 Rich testified that he had been in Blanchard's office on March 31 and
heard Schwanke tell Blanchard that they were due their checks that
April 1, Loomis informed Blanchard he was awaiting a call
from Smith. Loomis waited until about 9 a.m. and then
informed Blanchard of his decision not to extend the
contract.'
During the interim, between 8 and 9 a.m., no plumbing
assignments were made that would cause the men to go out
of the shop onto a job because Respondent was waiting to
talk to the Union (Smith).8
What next occurred presents the only serious conflict in
the evidence. Blanchard testified that immediately follow-
ing receipt of word from Loomis that he was not going to
extend the contract, that he (Blanchard) "told them we had
decided not to stay in the Union." Whereupon, Schwanke
said, "We want our checks." Schwanke denied that he
asked for the checks.9 In any event, it was necessary to
make some payroll calculations and send them to the main
office for the checks to be prepared. And sometime
between 1:30 and 2:30 p.m., final checks were given to
Schwanke, Saiz, and Lovato. According to the undisputed
and undenied testimony, Fegan and Vigil quit with some
comment by Fegan that he didn't want to work for
anybody that treated the men "this way." Neither Clyde
Phillips nor Buster Patty had come to work on April 1,
because, as Phillips testified:
I understood that after Mr. Rivera told us March 31st
was our last day, and then they explained to me that
unless there was an extension agreement signed, that
March 31st was my last day, and I didn't want to break
any rules. I wanted to do what was right, so I didn't
show up.
Buster Patty corroborated Phillips' version of what Rivera
had told the employees, namely, that "if Loomis didn't sign
the contract that we wouldn't be working after the 31st."
Following receipt of their checks on April 1, Schwanke
asked for the termination slips for the employees. Blanch-
ard testified that he refused to give them termination slips
because they (the employees) had not been fired, they had
voluntarily quit.'0
Schwanke, Saiz, and Lovato, of the bargaining unit, have
not worked for Respondent since March 31, or the
morning of April 1. Clyde Phillips and Buster Patty of the
bargaining unit returned to work on either April 7 or 8 and
have continued to work for Respondent since that date.
Mike Fegan, who was not covered by the contract, was
rehired sometime about the middle of June. Ron Vigil's
afternoon. Blanchard was unable to recall such a request. Rich further
testified that he heard Schwanke ask Blanchard about 10 a.m. on April I, if
the checks were ready yet.
'0 There was some testimony tending to show that the particular forms
used for this purpose had many different uses, i.e., fired, quit, layoff, lack of
work, etc., but the actual form used by Respondent was never identified or
offered in evidence. Moreover, this entire incident only tends to support
Respondent's contention that the employees were not terminated by the
Respondent. Schwanke's testimony that Blanchard said, "Well, I guess
you're terminated" is totally inconsistent with Blanchard's conduct in
refusing to provide the termination slips.
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status is unknown, and Sanchez was apparently unaffected
by the entire incident."
Conclusions as to the Factual Situation
It would be easy to take a routine approach to this matter
and quickly conclude that here is an employer that had a
relationship with the Union for 30 years and suddenly,
without valid reason, refuses to sign a contract or negotiate
with the Union; discharges his employees and goes his
merry way all in violation of Section 8(a)(1), (3), and (5) of
the Act.
Any kind of careful scrutiny of the evidence results in a
different picture.
Respondent is a small employer located 65 miles from
the union office, who once every 3 years has signed a
contract negotiated by a statewide mechanical contractor's
association, of which he was not a member, paid the
"freight" and looked to the Union to provide "competent
and qualified" plumbers as the Union contracted it would
do. However, for the past several years, the Union has
failed to provide competent help, and Respondent wanted
the situation corrected. Establishment of the claim of
incompetent or inadequate help is concluded and warrant-
ed not only from the testimony of Blanchard, Rich, and
Loomis, but also from the direct testimony of Clyde
Phillips - a journeyman plumber for 25 years and a union
member for 31 years - and the indirect recognition of the
problem when Schwanke asked Loomis if he would sign
the contract if the Union provided him three (or two)
journeymen plumbers.
Having a realistic problem which threatened its contin-
ued existence Respondent took the bull by the horns and
did something about it. In accordance with the terms of the
contract, he gave the Union 60 days' notice of cancellation
of the then existing contract. General Counsel and the
Charging Party concluded that because the notice was
inartfully drafted that Respondent was at that point telling
the Union it would no longer recognize the Union or its
(Respondent's) obligation to bargain. This conclusion I
reject for the following reasons. In the first place, Loomis
testified that his intention was to have the Union get in
touch with him so steps could be taken to resolve his
difficulties. This is the very essence of negotiations - the
resolution of common problems in a manner that will be
beneficial to all concerned. Loomis was a credible witness
albeit not too articulate or sophisticated in the niceties of
labor law.'2 Secondly, Schwanke - who certainly must be
regarded as an adverse witness - testified that Loomis was
at least receptive to signing a new contract if the Union
provided him "three qualified men." And the essence of
" According to the testimony of Loomis, as of April 7, the employees in
the plumbing department, were Larry Hodges, Steve Duran, David Victor,
Clyde Phillips, Buster Patty, and Juan Sanchez.
12 Loomis was a typical small town, small business man who impressed
me as one honestly engaged in the never ending struggle to keep his business
alive and growing in the face of the ever increasing red tape and regulations
that threaten to inundate him.
ia See Dunn Packing Company, 143 NLRB 1149 (1963), cited with Board
approval in Locko Glazers, Inc. of Los Angeles, 173 NLRB 185 (1968);
Superior Engraving Company, 183 F.2d 783 (C.A. 7, 1950). Cf. M & M
Bakeries, Inc., 121 NLRB 1596 (1958), where the Board found an employer
quilty of refusal to bargain because the employer procrastinated for 3
months.
this conversation is corroboarated by Phillips who testified
that Loomis responded "yes" when asked if he would sign
a contract provided two qualified journeymen plumbers
were provided by the Union. And, thirdly, the openmind-
edness or willingness of Respondent to negotiate during
this 60-day period is reflected by the testimony of General
Counsel's witness, Mike Fegan. Fegan testified that about
a week before the expiration date of the contract, Loomis
gave him a ride home and they (Loomis and Fegan) talked
about the apprenticeship program and the possibility of
Fegan joining the Union. It was brought out in cross-
examination that in Fegan's affidavit, given to a Board
Agent on April 5, he stated: "I was not yet in the Union,
but Loomis told me that I was to go into the Union if a new
contract was signed." These mutually corroborative state-
ments from unfriendly or disinterested witnesses clearly
support the testimony of Loomis concerning the intent of
his letter of January 28 to the Union, and his willingness to
negotiate and sign a contract with the Union.
After Loomis wrote his letter of January 28 giving the
required 60 days' notice of terminating the contract, what
action was taken by the Union? The Union chose to totally
ignore Respondent, although it acknowledged that it had
never before received such a letter from Respondent and
that its normal practice was to send a representative to call
on any employer that wrote such a letter. Moreover, the
Union chose to ignore the pleas and telephone calls of its
member Clyde Phillips and its union steward, Schwanke,
that someone should get in touch with Loomis. Under the
circumstances I am constrained to find the Union negli-
gent, lax, and much more at fault than the Respondent in
the breakdown of the bargaining relationship. In short,
where the Union totally ignores an employer's correspon-
dence and the urging of its members and union steward to
do something, the employer cannot be guilty of a refusal to
bargain.'3 Nor should the Union be relieved of its
responsibility merely because it had bigger fish to fry.' 4
The meeting of March 30 was little more than a prelude
to the meeting of March 31 between Carl Smith and
Loomis.15 What was actually done and said at the March
31 meeting is most important and relates directly to
General Counsel's allegation contained in paragraph 14(c)
alleging that since March 31 Respondent had refused to
meet and confer in good faith. What was said by Smith to
Respondent is variably expressed by others who were
present,' 6 but is undoubtedly most accurately reflected by
Smith's own testimony. Smith testified, "I asked if we could
extend the existing agreement for 30 days in order to give
us time to sit down and discuss the problems we had
relative to the new agreement." Thereafter, in both cross-
4 At the hearing the Union offered as an excuse the fact that it was
involved with and had not yet concluded its negotiations with MCA. I
regard this as a wholly unacceptable excuse for its total failure to
communicate with Respondent until serious damage was done. The Act
speaks in terms of the mutual obligation and as such the representative of the
employees must share some small degree of responsibility.
s1 There is nothing in the record to indicate that Rivera had any
authority to negotiate for the Union and the meeting only lasted 15 minutes.
16 Rivera, Schwanke, Blanchard, and Bill Beaty besides Smith and
Loomis.
790
CARTWRIGHT HARDWARE CO.
examination and redirect examination the same language
was repeated.' 7 It seems clear that Smith laid down a
condition precedent before negotiations could be carried
on - namely, extending the old agreement for 30 days. No
place in the testimony of Smith did he simply ask or
suggest to Loomis that they sit down and negotiate an
agreement covering the employees in the bargaining unit.
Loomis had an obligation to bargain because he was fully
aware that the Union represented a majority of the
employees in an appropriate unit, but there is no legal
obligation that required Respondent to sign an extension of
the old agreement before negotiating a new agreement with
the Union. Appropriate legal notice was given which
caused the then current labor agreement to expire on
March 31. The Act contemplates the parties will meet and
confer during the interim period after notice is given and
before the contract terminates,' 8 but this portion of the
statute was ignored by the Union. In the total absence of
any union animus and upon careful consideration of the
testimony in the record it is not possible to find that this
Respondent refused to bargain with the Union, it only
refused to extend the old agreement which it had a legal
right to do.
Turning to the morning of April 1, I find that Schwanke,
Saiz, and Lovato voluntarily elected to quit, after they
learned of Respondent's decision not to extend the
contract. Fegan testified that he voluntarily submitted his
resignation because he did not like the treatment accorded
the other employees. The determination that Schwanke,
Saiz, Lovato, and Fegan voluntarily quit follows from the
credited testimony of Blanchard and Rich that Schwanke
asked for the checks. That Schwanke should ask for the
checks was not surprising. He had on several occasions
stated he would not work in the absence of a contracts
Both Saiz and Lovato had expressed their intentions not to
work. Saiz had said that regardless of what Loomis did
relative to the contract he was going to go back to work for
his Dad who had a plumbing shop in the local area. Lovato
acknowledged that he had said that he was going fishing
and would collect his unemployment money.2 0 The
testimony of Phillips and Patty that Rivera had told them
no work after March 31 unless a contract is signed, is a
further indication of the voluntary cessation of work by
17 On cross-examination Mr. Adang asked:
Q. Now you indicated in your conversation with Mr. Loomis, you
suggested to him, or proposed to him, that the existing agreement be
extended for 30 days, to give you time to negotiate your problem?
A. To talk to Mr. Loomis about it, yes.
On redirect examination by Mr. Harris:
Q. At any time, did Mr. Loomis question whether you had
authority to extend the old agreement for 30 days?
A. No.
i' See Sec. 8(d) of the Act, which, in other words, says that collective
bargaining is the mutual obligation of the employer and employees' representa-
tive to meet at reasonable times and where a contract exists such contract
shall not be modified or terminated without 60 days' notice.
i9 This would be in keeping with the bylaws of the Union. Sec. 213 reads:
(a) A member shall not work contrary to or in violation of the terms
and conditions of any collective-bargaining agreement entered into
either by a local union or the United Association.
Schwanke, Saiz, and Lovato. Moreover, the testimony
clearly establishes that Respondent made no effort to
terminate anyone. Respondent's efforts were directed
toward ascertaining who intended to continue working in
the event the contract was not extended. There is no
testimony that the Respondent attempted to coerce,
pressure, or personally bargain with any of the individual
members prior to the contract's expiration. The fact that
the Union's bylaws may have prescribed a course of
conduct for its members that resulted in a cessation of
work is something between the individual members and
their union and cannot be attributed to Respondent.
I have grave doubts that the mere act of informing
employees what wages, hours, and working conditions
would prevail in the event no contract was signed, in the
absence of some union animus and under the particular
facts of this case where the Union's total failure to act had
lead Respondent to believe the Union was no longer
interested in representing the employees, violates Section
8(aX5) of the Act. However, I find it unnecessary to
definitively resolve that issue, because clearly the unilateral
institution of the changed working conditions with full
knowledge of the Union's majority status in an appropraite
bargaining unit is violative of the Act and requires the
same remedy. Respondent's testimony indicated it knew at
all times the Union represented a majority of its employees
thus there was a continuing bargaining obligation.21 An
employer's unilateral change in conditions of employment
at a time when it has a duty to negotiate is just as much a
violation of Section 8(a)(5) and (1) of the Act as a flat
refusal to negotiate, because it equally frustrates the
objectives of Section 8(a)( 5).22 Unilateral changes of wages,
hours, and working conditions is tantamount to direct
dealing by an employer with the employees which tends to
undermine the union's status and circumvents the collec-
tive-bargaining scheme as envisioned by the Act.
Summary
Respondent had a right of refusal to extend the old
agreement, but its obligation to meet and confer with the
Union continued after the expiration of the old agreement
on March 31, 1976. The Union's only request to bargain
(b) No member may be employed in an industrial plant on any
work, whether it be construction, maintenance or moderization, that
comes within the work jurisdiction of the United Association where the
Local Union does not have a collectrive-bargaining agreement with the
industrial plant or where the wage rate and terms and conditions of
employment in the plant are less than the standard established in the
Local Union's agreement, unless the member has, pror to employment
in such a plant, obtained the consent of the Local Union Executive
Board.
({c) A member violating this section shall be disciplined under
Section 218 by fine, suspension or expulsion. Local unions failing to
comply with this section shall be disciplined as provided by Sections 95
and 96.
20 Lovato's efforts at the hearing to pass this admitted comment off as a
joke or facetious remark is not credited.
21 On March 31 and again on Apnl 2 there is no proof that Respondent
refused to bargain Loomis only declined to extend the old contract, which I
have found it could legally do and the Union made no further demand or
effort to negotiate in the absence ofan extension of the old agreement.
22 N. LR B. v Benne Katz et al., d /b a Williamsburg Steel Products Co.,
369 U.S. 736 (1962).
791
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a conditional request, predicated on the Respondent
first signing an extention of the old agreement. In effect,
the Union has not made a valid request to bargain.
Respondent nevertheless has violated Section 8(a)(5) and
(1) of the Act, because it has unilaterally changed the
wages, hours, and working conditions at a time when the
Union represented a majority of the employees in an
appropriate bargaining unit. Employees Schwanke, Fegan,
Lovato, and Saiz were not unlawfully terminated, but
voluntarily elected not to work in the absence of a written
contract.
CONCLUSIONS OF LAW
I. The Respondent, Cartwright Hardware Co., Inc., is
and at all times material herein has been, an employer
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. The following unit is an appropriate bargaining unit
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
All journeymen and apprentice plumbers, steamfitters,
pipefitters, refrigeration fitters, gas fitters and lead
burners employed by the Employer in Santa Fe, New
Mexico; excluding all other employees, office clerical
employees, watchmen, guards and supervisors as
defined in the Act.
4. At all times since January 28, 1976, and continuing
to date, the Union has been the exclusive representative of
the employees within said appropriate unit for purposes of
collective bargaining, within the meaning of Section 9(a) of
the Act.
5. By unilaterally changing the existing wage rates and
general working conditions of the employees included in
the unit described herein above, the Respondent affected
the employment, wages, hours, and working conditions of
its employees without notifying the Union of its intention
to do so, or affording the Union an opportunity to bargain
on the subject, thereby violating Section 8(aX5) and (I) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except as specifically found herein above, the
Respondent has not violated the Act.
[Recommended Order omitted from publication.]
792