Empire Dental Co.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 860 (N.L.R.B. 1974)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jack L. Williams, D.D.S., d/b/a Empire Dental Co.
and Dental Technicians Union of Northern Califor-
nia, Local 99, International Jewelry Workers
Union, AFL-CIO. Case 20-CA-8225
June 24, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On September 10, 1973, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a brief and the General Counsel filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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,
except as modified herein.
Respondent takes exception to the assertion of
jurisdiction by the Administrative Law Judge who
found, inter alia, that Respondent, a company
engaged in the practice of dentistry and the opera-
tion of a dental laboratory, satisfies the Board's
jurisdictional standard for retail enterprises. Respon-
dent argues that its essentially local dental practice is
not sufficiently substantial to justify assertion of
jurisdiction. For reasons which follow, we find that
jurisdiction is warranted in the instant unfair labor
practice proceeding.
As the Administrative Law Judge points out in his
Decision, Respondent did not contest jurisdiction in
the representation case and entered into a Stipulation
for Certification Upon Consent Election. The Ad-
ministrative Law Judge therefore properly found that
"it would be contrary to the policies of the Act and
do violence to the desideratum of administrative
finality now to permit Respondent to escape the
obligations flowing from the Board's exercise of
jurisdiction in the representation case."
In this connection, it is well settled' that where, as
here, there is an absence of newly discovered
evidence or previously unavailable evidence or
special circumstances, a respondent in an unfair
labor practice proceeding is not entitled to relitigate
issues which were or could have been litigated in a
I Hospice ofAlverne, 195 NLRB 313.
S All dates below are for 1973 unless otherwise specified.
9 The Union was certified as the bargaining representative of the
laboratory technicians on March 1 following an election held pursuant to
the Stipulation for Certification Upon Consent Election.
4 Respondent does not except to the 8 (aX3) and 8(axl) findings.
211 NLRB No. 127
prior representation proceeding. Accordingly, we
find that the jurisdictional issue is not properly
litigable in this unfair labor practice proceeding and
that it is unnecessary to pass on the validity of the
contentions advanced by Respondent in support of
its exception to the assertion of jurisdiction herein.
We shall therefore continue to assert jurisdiction in
the instant case.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(3) of the
Act on January 19, 1973,2 by discriminatorily
discharging William Cicala; violated Section 8(a)(1)
of the Act by telling one of the technicians sometime
between March 13 and 19 that Respondent "would
close down the lab" if the Union3 "went too far at
the bargaining table"; 4 and violated Section 8(a)(5)
of the Act by its failure to afford the Union an
opportunity to bargain over its decision to subcon-
tract its laboratory work on April 2 and over the
effects of that decision on the unit employees who
were discharged as a result of Respondent's action in
this regard.5 However, the Administrative Law Judge
found without exception that the contracting out of
the laboratory work was not discriminatory because
Respondent's business was in financial trouble and
the technicians were performing their duties ineffi-
ciently.6
We turn now to the propriety of the Administrative
Law Judge's remedial order which not only requires
Respondent to engage in collective bargaining with
respect to wages, hours, and other conditions and
terms of employment, but also calls for the restora-
tion of the laboratory operation as well as backpay
and the reinstatement of all the technicians, includ-
ing Cicala who was discharged in violation of Section
8(a)(3) of the Act.
We agree with the Administrative Law Judge that a
bargaining order alone cannot serve as an adequate
remedy for Respondent's 8(a)(5) conduct and that
meaningful bargaining cannot be assured until some
measure of economic strength is restored to the
Union. However, in view of such special factors as
Respondent's financial stringency and the poor
quality of the technicians' work which prompted
Respondent to contract out the laboratory operation,
we conclude that the scope of the Administrative
Law Judge's remedial and bargaining order is overly
broad. Accordingly, in order to effectuate the
purposes of the Act, we shall require Respondent to
bargain with the Union concerning the effects of
subcontracting the laboratory work and shall accom-
S Respondent excepts to this finding. Although we agree with the
Administrative Law Judge that Respondent's conduct was unlawful, we do
not wholly subscribe to his remedial order and shall modify its terms as
indicated below.
d In the absence of exceptions thereto, we adopt this finding.
EMPIRE DENTAL CO. 861
pany our order with a limited backpay requirement
designed to make whole the employees for losses
suffered as a result of the subcontracting and to
recreate in some practicable measure a situation in
which the parties' bargaining position is not entirely
devoid of economic consequence for Respondent.?
Thus, we shall order backpay for all technicians,
except Cicala,8 at the rate of their normal wages
when last in Respondent's employ from 5 days after
the date of this Decision and Order until the
occurrence of the earliest of the following conditions:
(1) the date Respondent bargains to agreement with
Union on those subjects pertaining to the effects of
the subcontracting of the laboratory operation; (2) a
bona fide impasse in bargaining; (3) the failure of the
Union to request bargaining within 5 days of this
Decision, or to commence negotiations within 5 days
of Respondent's notice of its desire to bargain with
the Union; or (4) the subsequent failure of the Union
to bargain in good faith; but in no event shall the
sum paid to any of these employees exceed the
amount each would have earned as wages from April
2, 1973, the date on which Respondent subcontract-
ed its laboratory work, to the time each secured
equivalent employment elsewhere, or to the date on
which Respondent . shall have offered to bargain,
whichever occurs sooner; provided, however, that in
no event shall this sum be less than these employees
would have earned for a 2-week period at the rate of
the normal pay when last in Respondent's employ.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Jack L. Williams, D.D.S., d/b/a Empire Dental Co.,
Santa Rosa, California, his agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Stating to its employees that it would close
down the laboratory if the Union "went too far" at
the bargaining table.
(b) Discharging its employees because of their
union sympathies or activities.
(c) Refusing to bargain with Dental Technicians
Union of Northern California, Local 99, Internation-
al Jewelry Workers Union, AFL-CIO, with respect
to the effects on the technicians of its subcontracting
of the laboratory operation.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights under Section 7 of the Act.
2. Take the following affirmative action:
(a) Give the terminated employees backpay for the
period set forth in this Decision.
(b) Upon request , bargain collectively with Dental
Technicians Union of Northern California , Local 99,
International Jewelry Workers Union , AFL-CIO,
with respect to the effects on its technicians of the
subcontracting of the laboratory operation, and
reduce to writing any agreement reached as a result
of such bargaining.
(c) 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 or useful in checking
compliance with this Order.
(d) Post at its place of business in Santa Rosa,
California , copies of the attached notice marked
"Appendix."9 Copies of said notice , on forms
provided by the Regional Director for Region 20,
after being duly signed by Respondent's representa-
tive, 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 Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(e) Mail an exact copy of the attached notice
marked "Appendix" to the Union, William Cicala,
and all the technicians who were terminated by
Respondent on March 30, 1973. Copies of said notice
on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative , shall be mailed immedi-
ately upon receipt thereof , as hereinabove directed.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
7 Interstate Tool Co., Inc., 177 NLRB 686.
It As Cicala was discriminatorily discharged in violation of Sec. 8(a)(3) of
the Act , we shall order backpay for him from the date of his discharge to the
time he secures substantially equivalent employment elsewhere , or to March
30, 1973, whichever occurs sooner . Losses for that period shall be computed
as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, and F. W.
Woolworth Company, 90 NLRB 287. However, in the event Cicala did not
secure such employment prior to March 30, 1973, he shall also be subject to
the same backpay formula as the other technicians.
9 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
I WILL NOT tell employees that I will close down
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the laboratory if the Union "went too far" at the
bargaining table.
I WILL NOT discharge employees because of
their union sympathies or activities.
I WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under the National Labor
Relations Act.
I WILL, upon request, bargain collectively with
Dental Technicians Union of Northern Califor-
nia, Local 99, International Jewelry Workers
Union, AFL-CIO, with respect to the effects of
the subcontracting of the laboratory operation
upon the technicians who were employed there
and reduce to writing any agreement reached as a
result of such bargaining.
I WILL give to William Cicala and the techni-
cians employed at the dental laboratory on
March 30, 1973, backpay in accordance with the
remedial order set forth in the Board's Decision.
JACK L. WILLIAMS,
D.D.S., D/B/A EMPIRE
DENTAL CO.
(Employer)
Dated By
(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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-3197.
DECISION
1. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was tried before me in Santa Rosa , California, on June 27,
28, and 29, 1973. The charge was filed April 12, 1973, by
Dental Technicians Union of Northern California, Local
99, International Jewelry Workers Union, AFL-CIO
(herein called the Union). The complaint issued May 22,
alleging that Jack L. Williams, D.D.S., d/b/a Empire
Dental Co. (herein variously called Dr. Williams, Williams,
and Respondent) violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act.
The parties were given opportunity at the trial to
introduce relevant evidence, examine and cross-examine
I Claude Davis , Paul Granneman, David Izzett , Wayne Jambois, Frank
Measel , Stephen Nelson , and Larry Whitehead.
witnesses , and argue orally. A brief was filed for Respon-
dent, but not the General Counsel.
II. ISSUES
The issues are whether Respondent meets the Board's
jurisdictional standards ; and, if so, whether it:
1. By Peter Baker, its business manager, between about
March 13 and 19, 1973, to discourage union representa-
tion, told an employee that Respondent would go out of
business , violating Section 8(axl).
2. Discharged William Cicala January 19, 1973, and its
seven remaining laboratory technicians ' March 30, 1973,
because of their union activities , violating Section 8(a)(3)
and (1).
3. Contracted out its laboratory work March 30, 1973,
and concomitantly discharged the entire bargaining unit of
laboratory employees, without giving the Union opportuni-
ty to bargain over the underlying decision or its effects on
the unit employees, violating Section 8(a)(5) and (1).
III. FINDINGS OF FACT
A. Business of Respondent
Respondent is a proprietorship owned by Jack L.
Williams, D.D.S., and has been engaged in the practice of
dentistry in Santa Rosa, California, since August 24, 1971.
The business has consisted of several dentists and, until
Respondent ceased its operation as later detailed, an
exclusively in-house laboratory.
Respondent contends that its annual gross revenues are
not sufficient to warrant the assertion of jurisdiction under
the Board's retail standard, and therefore that the
complaint should be dismissed without consideration of
the substantive merits . Respondent realized gross revenues
of $31,296.04 in the 5 months it was in operation in 1971,
and revenues as follows for the succeeding months to, but
not including, the month of the trial:
1972
Jan. $21,583.17
Feb. 25,469.69
Mar. 27,420.69
Apr. 31,850.79
May 30,999.44
June 36,056.28
July 43,370.98
Aug. 28,682.91
Sept. 45,217.39
Oct. 38,416.67
Nov. 48,882.89
Dec. 44,508.38
1973
Jan. $39,978.15
Feb. 44,707.66
Mar. 53,403.24
Apr. 87,162.30
May 58,934.87
EMPIRE DENTAL CO. 863
Inasmuch as Respondent realized an annual gross
income in the 12 ,months ajmmediately preceding the month
of trial exceeding $500,000, and since it is established by
the pleadings , as amended at the trial, that it has an annual
indirect inflow of goods and supplies valued in excess of
$3,000 , I find that it is an employer engaged in and
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act ; and, further, that it satisfies the Board's
jurisdictional stapdard for retail enterprises . Dr. J. C.
Campbell, Dentist, 157 NLRB 1004 ; Western Machine &
Tool Company, 115 NLRB 978.
B. Labor Organization Involved
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
C. The Alleged Unfair Labor Practices
1. Background
Dr. Williams, for some years before opening for
business in Santa Rosa in August 1971, had been a staff
dentist in other practices in the San Francisco bay area. In
his own practice , he sought to express his ideal, derived
from that experience , of a "clinical approach to dentistry."
To that end, he erected a 4,000-square-foot building
embodying numerous special design features , facilities for
several staff dentists , and a laboratory equipped to provide
in-house support for nearly any need the dentists might
have. The laboratory was central to the overall concept. As
Williams testified:
This was the structure of the entire philosophy of the
clinical approach , that we would have the in-house lab
to take care of repairs on the spot within the hour, to
have complete control over the processing of all kinds
of dental appliances, inasmuch as we were going into
complete dentistry on a family basis.
Respondent had one laboratory technician at the start,
alleged discriminatee William Cicala. A second technician,
Larry Whitehead, was hired in November 1971, and the
laboratory complement grew to nine, some of whom were
part timers, by mid-1972. On March 30, 1973-the day
Respondent ceased operating it-the laboratory had seven
technicians . The number of dentists meanwhile reached
about six.
Two or three times in late August 1972 , some of
Respondent 's lab®ratory technicians met with Leo Turner,
the Union's business agent, and signed union authorization
cards . The meetings were arranged by Cicala, who
previously had become acquainted with Turner. Turner, by
letter to Respondent dated September 5, 1972, asserted
that the Union represented a majority of the technicians
and demanded that it be recognized for bargaining
purposes.
About the time of receipt of Turner's letter, Dr. Williams
and Peter Baker , Respondent's business manager , called a
meeting of the technicians , during which their interest in
the Union was discussed. One of the technicians told
Williams that Turner was their spokesman, and gave him a
copy of the Union's standard area contract. Williams
reminded the technicians that the business was "still in
infancy," suggested that they were "getting the cart before
the horse," and promised that they would make "beaucoup
dollars" if they stuck with him. He added that, should they
go union then, the continued operation of the laboratory
would be economically unfeasible, and he would have to
close it .2 Williams asked that the technicians give him 6
months to a year to see how things developed; then, if they
still wanted, he told them, they could "go union with my
blessings." The meeting closed with the understanding that
Baker would draw up a document similar to a union
contract setting forth the technicians' various benefits and
conditions of employment.
Following that meeting, Cicala informed the Union's
Turner that the technicians wanted to hold off on the
Union to give Williams time to "live up to" his promises.
Several weeks elapsed without incident. In December,
Williams embarked on a Mexican vacation, not to return
until February 10, 1973. In early January 1973, Baker's
promised document not having materialized and condi-
tions generally remaining as they were before the Septem-
ber meeting, Cicala again arranged for Turner to meet with
the technicians. Four of them met with Turner on January
17, signing fresh authorization cards; and Cicala, on
January 18, solicited signatures in the laboratory from
three not attending.
By letter dated January 18, Turner once more demanded
that Respondent recognize the Union. At about 11 a.m. on
January 19, Baker entered the laboratory, the letter in
hand. He said, "So you guys are going union, huh?"
Technician Wayne Jambois answered, "Yes, we feel that it
is the best thing . . . ." Baker replied, "Well, I think you
guys are cutting your own throats."3 At about 5:30 p.m.
that same day, Baker fired Cicala.
Also on January 19, the Union petitioned for an NLRB
election among Respondent's laboratory technicians in
Case 20-RC-11145. The Regional Director for Region 20
approved a Stipulation for Certification Upon Consent
Election on February 12, and an election followed on
February 21. The tally was five votes for the Union, one
opposed. A certification of representative issued March 1.
Two bargaining sessions followed-on March 13 and 19.
Both lasted 1 to 1-1/2 hours. Baker was Respondent's
spokesman at the first meeting, Williams at the second.
Turner spoke for the Union at both. The first meeting
consisted primarily of Turner's proposing that the parties
adopt the Union's standard area agreement, to expire
October 1, 1973, and explaining its various provisions.
2 The finding that Williams mentioned closing the laboratory is based on during NLRB investigation of the charge . The General Counsel does not
the credited testimony of technicians Cicala , Whitehead, and Wayne seek a finding of violation based on Williams' conduct at the September
Jambois . Williams' denial is not credited both because of the persuasiveness meeting.
of the contrary testimony and because Williams several times during his 3 The General Counsel neither alleged nor contends that Baker, by these
testimony demonstrated flawed recall until refreshed by an affidavit taken comments, violated the Act.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker said nothing about the possibility of contracting out
the laboratory work.
At the second bargaining session, Turner restated the
Union's proposal that the area agreement be adopted.
Williams voiced dissatisfaction with its job descriptions,
saying that new ones would have to be worked up.
Williams also complained that the quality of work done in
Respondent's laboratory was poor, necessitating an exces-
sive number of "remakes." He said in passing that, unless
laboratory efficiency were improved, he might have to
contract out its functions "even though this was the last
thing that I wanted to do." 4 The session closed with an
understanding that a further meeting would be held March
26 to give additional consideration to job descriptions.
Between the two bargaining meetings, Baker told
technician Jambois that Williams was "very much against
the union," and, in Baker's opinion, "would close down the
lab" if the Union "went too far" at the bargaining table.5
2. The contracting out of the laboratory work
Williams originally had planned to return from his
Mexican vacation in early January. Upon telephoning
Baker about January 5, he was assured that the business
was "running smoothly," so decided with prompting from
Baker to stay an extra month. Williams called Baker again
the last week in January, to be told that everything was
'just fine." Baker did not mention the Union's petition or
that he had fired Cicala. When Williams returned to Santa
Rosa on about February 10, he found the business in
"utter chaos." He learned not only of Cicala's discharge
and the pending NLRB election, but that, contrary to
Baker's cheerful telephonic summations, the profit and loss
picture was ominous. Beyond that, the quality of laborato-
ry work had deteriorated in his absence, causing the staff
dentists on their own to contract out the porcelain portion
of it in January6 and to be seething about the rest.
The staff dentists had expressed increasing bitterness
over the quality of laboratory work throughout 1972, some
urging that the laboratory be closed-that Respondent
"can the whole kit and caboodle," to use Williams'
phrase-and the work be contracted out. Poor laboratory
work embarrassed them professionally, and the high
incidence of remakes both inflated Respondent's overhead
and, with the attendant need to reschedule appointments,
inconvenienced patient and doctor alike? Williams, in the
words of one of the staff dentists, "tolerated . . . really
gross inefficiency" in the laboratory. He opposed closing it
with the argument that to do so would undermine the
"entire structure" on which the practice was predicated,
and that, with time and patience, quality would improve.
After Williams' return from Mexico, the fiscal crisis and
4 Williams is credited that he raised the possibility of closure. Turner,
while verifying that Williams complained about the inefficiency of the
laboratory , testified that he could not recall if possible closure was
mentioned . Wayne Jambois, also present , verified Williams' version.
6 Baker had authority to hire and fire laboratory employees. I find that
he was a supervisor within the meaning of the Act.
e The record does not disclose if this caused job loss or other
impairment.
r One of Respondent's staff dentists , Ira Handelsman, credibly testified
that a remake rate exceeding 5 percent is considered unacceptable in the
profession, and that the crown and bridge department of Respondent's
the staff dentists' growing militance about the laboratory
dictated a fresh appraisal of the laboratory situation.8
Williams and the staff dentists held formal and informal
meetings to examine the matter in detail. No dispositive
decisions were reached, but three alternatives emerged at a
meeting in mid-March: contract out all laboratory work,
undertake an intensive training program for the techni-
cians, or cull the poor technicians. There is no evidence
that the Union was mentioned at this meeting . As a result
of the meeting, Williams began to explore with Mikesell's
Dental Laboratory its doing Respondent's laboratory
work.
Soon after that meeting, Williams received further bad
news: While he was in Mexico, Baker had failed to remit to
the United States Internal Revenue Service, and its State of
California counterpart, moneys withheld from the pay of
Respondent's employees for the last quarter of 1972. On
Friday, March 23, IRS officials, as Williams put it,
"invaded" Respondent's premises and issued an ultimatum
that the delinquency-$30,000-be cured in 3 hours or the
business would be padlocked. The deadline shortly was
extended to noon of March 26 and Williams, after heroic
scrambling, was able through his father and the use of
payroll moneys to meet it. On March 25, Baker was
arrested for grand theft in connection with his part in the
matter. At about this time, technician Claude Davis
telephoned the Union's Turner, at Williams' request, to
report that "personnel problems" had arisen necessitating
postponement of the bargaining meeting scheduled for
March 26.
Williams met again with the staff dentists about the date
of Baker's arrest . It was decided to contract out all
laboratory work. The IRS ultimatum, according to
Williams, was "the final contributing factor." It was
concluded at the meeting that neither the technicians nor
the Union should be given advance notice of this, for fear
that theft of equipment and property damage would result.
There is no evidence that the Union otherwise was
mentioned in reaching the decision.
On Friday, March 30, at the end of the day, Williams
told the technicians in a group that the laboratory was
closed as of then, and that he had arranged for Mikesell's
Dental Laboratory to do the work. Williams added that the
decision was based strictly on fiscal considerations and was
not influenced by the advent of the Union. After the
meeting he told Larry Whitehead that he had put in "a
good word" for him and technicians Claude Davis and
Paul Granneman with Mikesell's, and that Respondent
would hire the three back when conditions permitted.9
That night, Williams told Turner by telephone of the
shutdown and contracting out, citing the problem with IRS
and Baker's alleged theft, and expressly denying that the
laboratory, in the first 3 months of 1973, had 43 remakes out of 176
cases-about 25 percent.
6 Respondent proffered detailed testimonial and documentary evidence
at the trial corroborative of the seriousness of the fiscal plight , none of
which was challenged by the General Counsel. Crediting this evidence, and
there being no challenge to it, I see no need to labor its specifics in this
Decision.
6 Whitehead is credited over Williams' denial that Williams raised the
prospect of future employment . Both had excellent witness stand demeanor,
but Williams, as previously noted , was shown at times to have faulty recall.
EMPIRE DENTAL CO. 865
Union figured in the decision. In answer to Turner's
question whether the change was permanent, Williams said
he "had-no idea ... could not tell." Turner, assuming
"that there was no future for collective bargaining at that
time," did not ask Williams to bargain over the effects of
the change. Williams' revelation did not come as a
complete surprise to Turner. Whitehead had reported to
him the day before a "rumor" that the laboratory would be
closed and its work contracted out.
On Monday, April 2, two technicians from Mikesell's
Dental Laboratory began working in Respondent's labora-
tory facility in the service of Respondent's needs. The
record does not set forth the details of the arrangement
with Mikesell's.
3. The discharge of Cicala
Cicala, as mentioned above , was a technician for
Respondent from its beginnings in August 1971 until
discharged by Baker on Friday , January 19 , 1973; was the
catalyst bringing the technicians and the Union together
preliminary to the Union's demand letters of both
September 5, 1972 , and January-$,1973; and himself
solicited three authorization card signatures in the labora-
tory on January 18. Also , as reported above , Baker made
some less than felicitous remarks in the laboratory the day
of the discharge regarding the technicians ' interest in the
Union.
Cicala became a dental technician in 1939. He and
Williams previously had been associated professionally,
and Williams hired him because of that . Cicala served for a
time as Respondent's laboratory manager, but was relieved
at his request because he did not enjoy the responsibility.
For months before Cicala's discharge , the various staff
dentists complained to Williams often and with vehemence
that Cicala was an unreliable and technically poor
technician and should be fired . Williams' reaction was that
Cicala "worked well for me and I felt that . . . if they
would attempt to be a little more lenient with him and
understanding , they possibly could get work out of the
man." Around Thanksgiving 1972 , however, Williams
smelled alcohol on Cicala, and warned him "that if I ever
found that he was drinking on the job again he was going
to get canned." 10
The discharge was Baker's decision alone , Williams not
learning of it until his return from Mexico . Williams had
never discussed with Baker the question of discharging
Cicala. The afternoon of the discharge , at about 3:30 and
caught up in his work , Cicala left the laboratory for the
day. Technicians Larry Whitehead and Frank Measel had
left before Cicala that day. Normal quitting time was about
5 p.m. David Izzett and Wayne Jambois remained to
"cover" any work that might arise. Staff Dentist Ira
Handelsman and Head Nurse Alice Maisac testified that
they searched the building for Cicala , apparently after he
had left ; and not only were unable to find him but did not
see any other technicians . There is no evidence that Izzett
or Jambois saw Handelsman or Maisac either , but Jambois
credibly testified that Baker inquired to him of Cicala's
10 Williams was aware, when he hired Cicala, that Cicala had had a
drinking problem . He testified telling Cicala at that time, "One time off the
wagon, and you are going to get canned."
and Whitehead's whereabouts at about 3:45 p.m. Baker
mentioned something to Jambois about a crown that
Whitehead was to have ready the next day, and that he was
"very peeved" and would "have to fire" Cicala.
In answer why he was looking for Cicala, Handelsman
testified that he did not "remember exactly what the reason
was. But it was necessary for me to have a denture
technician." Jambois as well as Cicala was a denture
technician. Maisac testified, to a similar question, that she
was looking for Cicala concerning a crown for Dr.
Handelsman. She explained that, while Cicala worked in
the denture rather than the crown and bridge department,
he at that time was supervising in the laboratory and thus
was the person to ask about work in progress.11 The crown
in question was Whitehead's immediate responsibility. He
later learned that effort had been made on the 19th to
locate him at home to return to the laboratory to work on
the crown. He suffered no recriminations over the matter.
After the unsuccessful search for Cicala, Handelsman
and Baker discussed firing him. Handelsman lacked the
authority to take such action, but Baker did not. At about
5:30 p.m., Baker telephoned Cicala at home, saying "Well,
Cicala, you weren't in the lab at 3:30, so I'm going to can
your ass." Cicala protested that others had left early as
well. Baker then mentioned that, besides, the doctors had
been complaining about Cicala's work. Baker did not
mention the Union. Baker then called Jambois to report
what he had just done ; again, the Union was not
mentioned. The next workday, Monday, January 22,
Cicala reported for work in the hope that things had
"cooled off." He asked Baker if he had been serious about
the discharge. Baker affirmed that he had been, again
mentioning that Cicala had left work early. The Union was
not mentioned.
Baker, although present in the room through much of the
trial, did not testify regarding Cicala's discharge. It was
established through Williams, however, that Baker had
stated to Williams, well before the discharge, his feeling
that Cicala and Jambois "were the two union promoters."
Jambois testified credibly and without contradiction that
he and Baker talked several times about the Union in late
January 1973, and that Baker had said that it was a poor
time for the Union to be "rocking the boat."
It was common for the technicians to come and go
without regard for working hours. As Staff Dentist Victor
Hosson testified:
[P]eople were coming and going in that laboratory at
their own free will. Sometimes there was [personal]
business to take care of, and if it was in the middle of
the morning, they wouldn't even ask if they could
leave-and they would just return whenever they
wished.
To this, Handelsman added that the other technicians left
early with "about the same degree of frequency" as Cicala.
it Maisac notwithstanding, Cicala as mentioned above previously had
been relieved of responsibility over the entire laboratory . Williams so
testified.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ANALYSIS
A. The Alleged Independent Violation of Section
8(a)(1) 12
The General Counsel alleged, in paragraph 6 of the
complaint as amended at the trial, that Respondent acting
through Business Manager Baker between about March 13
and 19, 1973, "threatened employees that Respondent
would go out of business in order to discourage union
representation."
Having found as fact, in substantial conformity with that
allegation, that Baker told technician Wayne Jambois,
sometime between the March 13 and 19 bargaining
meetings, that Dr. Williams was "very much against the
union," and, in Baker's opinion , "would close down the
lab" if the Union "went too far" at the bargaining table, I
conclude that Respondent thereby interfered with, re-
strained, or coerced an employee within the meaning of
Section 8(a)(1) of the Act.
B. The Alleged Violations of Section 8(a)(3)
1. The discharges attending the subcontracting of
laboratory work
The decision to subcontract all laboratory work was
reached within a month of the Union's certification as the
technicians ' bargaining representative and within about a
week of the one bargaining meeting in which Williams
participated, in a context of past conduct by Williams
revealing unmistakable opposition to the idea of dealing
with the Union . In the usual case , these circumstances
perhaps would compel a finding that the decision was
based on antiunion considerations.
But this is not the usual case . Williams returned from
Mexico in February to find the business in dire financial
trouble and the technicians performing with an inefficiency
that had the staff dentists in a state of not-so-quiet
desperation. In March, the situation took an even darker
aspect with the discovery that thousands of dollars had not
been remitted to taxing authorities and no longer was
available for that purpose , the arrest of Business Manager
Baker for allegedly embezzling the funds of the business,
and the IRS ultimatum to produce $30,000 over a weekend
or be padlocked.
Williams testified that the IRS ultimatum was "the final
contributing factor" in the decision and that the presence
of the Union was not a factor. I credit him on both counts,
because the decision was reached within a day or two after
the ultimatum , and because of the staggering confluence of
12 No conclusions are reached concerning the legality of conduct outside
the scope of the complaint.
13 As a further defense to the 8(a)(5) allegation, Respondent seems to
argue that the certification underlying the allegation was invalid because
Respondent did not then meet the Board 's jurisdictional standards.
Respondent did not contest jurisdiction in the representation case , not only
submitting to the NLRB a commerce data form dated February 2, 1973,
stating that it realized annual gross revenues exceeding $500,000, but
entering into a Stipulation for Certification Upon Consent Election on
February 7, 1973, in which it stipulated to an annual gross exceeding
$500,000 and to an annual direct inflow exceeding $50,000 in the course of
expressly conceding that the Board had jurisdiction. Respondent first
learned during the pendency of the present trial that never , until after the
untoward circumstances apart from the Union 's advent. I
find, therefore, without deciding whether Respondent in
any case would be saved from an 8(a)(3) violation by the
Supreme Court's decision in Darlington Mfg. Co., discussed
below, that the contracting out of all laboratory work and
the attendant discharge of the technicians were not
discriminatory within the meaning of that section.
2. The discharge of Cicala
I conclude that Business Manager Baker discharged
Cicala because of his support of the Union, in violation of
Section 8(a)(3).
Not only did the discharge occur later the day Respon-
dent received the Union's demand letter dated January 18,
but Cicala perhaps more than any other technician was
responsible for the employee support behind that letter. He
arranged the January 17 meeting between the technicians
and Turner, and himself solicited pledge card signatures in
the laboratory on January 18. That Baker knew of Cicala's
union sympathies was revealed by his comments to
Williams fingering Cicala as a prime mover; and that
Baker was hostile to the Union was shown by his storming
into the laboratory January 19, the demand letter in'hand,
to state that he thought the technicians were "cutting your
own throats," and by other utterances as well.
If anything, Baker's stated reasons to Cicala for the
discharge-leaving early and poor performance-strength-
en the inference of unlawful motive, for leaving early was a
pervasive and long-tolerated practice, and poor work long
had been a problem not only of Cicala but most of the
technicians . Cf. Red Line Transfer & Storage Company, 204
NLRB No. 3; Scott's, Inc., 159 NLRB 1795, 1801.
C. The Alleged Violations of Section 8(a)(5)
Relying mainly on Fibreboard Paper Products Corp. v.
N.LR.B., 379 U.S. 203 (1964), the General Counsel
contends that Respondent violated Section 8(a)(5) by
contracting out the laboratory work, and concomitantly
discharging all the unit employees, without giving the
Union chance to bargain over the matter before the
underlying decision was reached, or over the effects of its
implementation on the unit employees. Respondent count-
ers that its action was within the realm of management
prerogative; hence, that it was under no duty to bargain
over the decision or its effects, citing Textile Workers Union
v. Darlington Mfg. Co., 380 U.S. 263 (1965), among others.
Respondent further suggests that the Union had ample
opportunity to bargain in any event.13
Darlington on casual reading may appear supportive of
Union's certification , had it realized gross revenues in any 12-month period
of over $500,000. See sec. III , A, "Business of Respondent", supra. I
conclude that since (a) Respondent in effect consented to submission of the
representation question to the Board 's processes, (b) the Board's assumption
of jurisdiction in the representation case in no way reflected neglect on its
part , (c) statutory jurisdiction doubtless existed over Respondent at all
times, and (d) as previously determined , Respondent's revenues grew
shortly after the Union's certification to meet the Board 's discretionary
jurisdictional standard for retail enterprises, it would be contrary to the
policies of the Act and do violence to the desideratum of administrative
finality now to permit Respondent to escape the obligations flowing from
the Board's exercise of jurisdiction in the representation case.
EMPIRE DENTAL CO.
Respondent's position , for the Court held "that when an
employer closes his entire business , even if the liquidation
is motivated by vindictiveness towards the union, such
action is not an unfair labor practice ," (380 U .S. at 273-74)
and that "a partial closing is an unfair labor practice under
Section 8(a)(3) if motivated by a purpose to chill unionism
in any of the remaining plants ...." 380 U .S. at 275.
Moreover, while, as the Court's reference to Section 8(a)(3)
suggests , Darlington did not touch the issue of an
employer's duty under Section 8(a)(5) to bargain with an
incumbent union over a decision to close , the Board since
has stated regarding a partial closing in an 8(a )(5) context
that it does "not believe that the Act contemplated
eliminating the prerogative of an employer . . . to
eliminate itself as an employer." Summit Tooling Co., 195
NLRB 479. The Board thus appears to have closed the
circle, having previously hinted in Ozark Trailers, Inc., 161
NLRB 561, 564-65, that it would not require bargaining
over "a decision to go out of business completely."
The present case , however , is not so much one of closure
as of contracting out. It is one thing to go out of
production, quite another-and qualitatively different-th-
ing to select a means of production in competition with the
bargaining unit . This vital distinction renders Darlington
and Summit Tooling Co. inapposite . See Florida-Texas
Freight, Inc., 203 NLRB No. 74, and Hyos de Ricardo Vela,
Inc., 200 NLRB No. 43, both decided since Summit Tooling
Co. and both honoring the distinction sub silentio.
More apposite to the present situation are Fibreboard
and the copious body of case law that has grown around it.
Fibreboard Paper Products v. N.L.R.B., 379 U.S. 203 (1964).
Fibreboard involved an employer's contracting out of in-
plant maintenance work , and the attendant discharge of its
maintenance employees , without first permitting the
employees ' bargaining representative to discuss the matter.
The reasons for the change were validly economic and free
of antiunion taint. The Court held that "the replacement of
employees in the existing unit with those of an independent
contractor to do the same work" was a mandatory subject
of bargaining under Section 8(a)(5) and 8(d) of the Act,
explaining (379 U.S. at 214):
[I It is contended that when an employer can effect cost
savings . . . by contracting the work out , there is no
need to attempt to achieve similar economies through
negotiation with existing employees or to provide them
with an opportunity to negotiate a mutually acceptable
alternative . The short answer is that, although it is not
possible to say whether a satisfactory solution could be
reached , national labor policy is founded upon the
congressional determination that the chances are good
enough to warrant subjecting such issues to the process
of collective negotiation . . . . [I It is not necessary that
it be likely or probable that the union will yield or
supply a feasible solution but rather that the union be
afforded an opportunity to meet management 's legiti-
mate complaints that its maintenance was unduly
costly.
Further to this point, the Board observed in Ozark
Trailers, Inc., supra, at 161 NLRB 568, a lineal descendant
of Fibreboard:
867
[A]n employer's obligation to bargain does not include
the obligation to agree, but solely to engage in a full
and frank discussion with the collective-bargaining
representative in which a bona fide effort will be made
to explore possible alternatives, if any, that may
achieve a mutually satisfactory accommodation of the
interests of both the employer and the employees. If
such efforts fail, the employer is wholly free to make
and effectuate his decision . Hence, to compel an
employer to bargain is not to deprive him of the
freedom to manage his business.
Implicit in Fibreboard, however, is the qualification that
a contracting-out decision attended by considerations not
"suitable for resolution within the collective bargaining
framework" need not be subjected to bargaining ritual. 379
U.S. at 213-14. The Board, following this lead, repeatedly
has stated that it does not read Fibreboard "as laying down
a hard and fast new rule to be mechanically applied
regardless of the situation involved ." Sucesion Mario
Mercado E Hyos, 161 NLRB 696, 700; Westinghouse
Electric Corp., 150 NLRB 1574, 1576; Shell Oil Co., 149
NLRB 305, 307. The Board thus has refused to find a
violation where "it seems certain that no amount of give-
and-take in bargaining negotiations could have forestalled
the Respondent's inevitable decision" (Sucesion Mario
Mercado E Hyos, supra, at 161 NLRB 700); or where the
decision involved such "a significant investment or
withdrawal of capital [affecting] the scope and ultimate
direction of an enterprise" as to "lie at the very core of
entrepreneurial control." General Motors Corp., 191 NLRB
951.
Even when an employer 's unilateral subcontracting
decision is prompted by considerations "suitable for
resolution within the collective bargaining framework,"
Section 8(a)(5) is not necessarily violated . The Board in
Westinghouse Electric Corp., supra, set forth several criteria,
which if met more or less cumulatively nevertheless
warrant complaint dismissal . They are if the contracting
out was motivated solely by economic considerations,
comported with the employer's traditional business opera-
tions and established past practice,did not have demonstra-
ble adverse impact on the unit employees, and the union
had had opportunity in previous negotiation to bargain
about the employer's subcontracting practices. See also,
Tellepsen Petro-Chem Constructors, 190 NLRB 433, fn. 1.
Whether an employer's subcontracting decision is of a
nature entitling the union first to bargain-i.e., whether it
is a mandatory subject of bargaining-turns, then, on the
considerations attending that decision . If they were
"suitable for resolution within the collective bargaining
framework," the union is entitled unless the exonerating
criteria of Westinghouse Electric Corp. are met. If, on the
other hand, those considerations were "at the very core of
entrepreneurial control" or otherwise such "that no
amount of give-and-take in bargaining negotiations could
have forestalled the . . . inevitable decision," the union is
not entitled. But apart from whether an employer's
unilateral decision falls within or without the Fibreboard
prohibition , the employer generally must afford the union
"an opportunity to bargain over the rights of the employees
whose employment status will be altered by the managerial
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision ." Ozark Trailers, Inc., supra at 161 NLRB 563,
quoting from N.L.R.B. v. Royal Plating and Polishing Co.,
350 F.2d 191, 196 (C.A. 3, 1965). See also Summit Tooling
Co., supra.
Applying these principles to the present case, I conclude
without need for labored analysis that Respondent was
under a duty to bargain over the effects on the discharged
technicians of its subcontracting decision , whether or not
under a duty to bargain over the decision proper. Summit
Tooling Co., supra; Ozark Trailers, Inc., supra.
I also conclude , but with less ease , that Respondent was
under a similar duty regarding the decision . The saving
Westinghouse criteria do not obtain because of the harshly
adverse impact of the decision on the unit employees; the
absence , despite the contracting out of porcelain work, of
an established past practice of subcontracting ; and, as is
discussed more fully below, the Union's lack of opportuni-
ty in previous negotiations to bargain over Respondent's
subcontracting practices. And, while the precipitating
event was the IRS ultimatum , Respondent long since had
been mulling alternatives to lower the expense and improve
the quality of the laboratory product-contracting out
among them. The ultimatum did not obviate having
laboratory work done by someone, in part still in
Respondent's own laboratory, and it is plain that the
ultimatum triggered the contracting out not because it
changed the character of, but only because it accentuated,
the underlying and historic problems of laboratory expense
and quality. Those problems in turn were a function of the
technicians' salary levels and skills-matters which, far
from being at the core of entrepreneurial control, are
preeminently appropriate for treatment within the bargain-
ing framework.
It might be contended, nevertheless, that the IRS
ultimatum introduced such urgency to an already tortured
situation that no amount of bargaining give-and-take could
have forestalled Respondent 's decision . This contention
would not persuade. Implementation did not occur for
several days after the decision was reached, indicating that
some delay for bargaining could have been countenanced;
and, IRS having been appeased the Monday before the
Friday implementation, there was no apparent necessi-
ty-except perhaps bookkeeping expediency-why imple-
mentation could not have waited a while longer in the
interest of bargaining. Yet, rather than invite the Union's
counsel, which conceivably would have contained conces-
sions of real ameliorative value while preserving the jobs of
at least some of the unit employees , 14 Respondent
designedly kept it in the dark until after implementation.
It having been determined that Respondent was under a
duty to give the Union a chance to bargain not only over
the effects of the subcontracting, but the underlying
decision as well, the question remains whether, despite
Respondent's hide-the-ball scheme, such a chance was
given. Williams alluded to the possibility of contracting out
during the March 19 bargaining session , and the Union's
Turner learned from a unit employee on March
29-several days after the decision had been reached and
one day before implementation-of a rumor about it.
Otherwise, the Union heard nothing and, as noted,
purposely was kept uninformed.
Williams' allusion at the March 19 session scarcely can
be said to have alerted the Union that subcontracting was
so immediate a prospect as to call for bargaining,
particularly since the overriding issue at that meeting was
job descriptions-hardly a harbinger of impending change
-and a followup meeting was scheduled to deal further
with that subject. See Florida-Texas Freight, Inc., supra.
Nor can it be said that the Union, by Turner's failure to
request bargaining after hearing the rumor and after
Williams' postimplementation disclosure, waived any right
to bargain over the decision or its effects . The Union by
then was presented with a fait accompli that largely had
emasculated its bargaining capability . As the Board stated
in Ozark Trailers, Inc., supra at 161 NLRB 564:
Respondents, by withholding all information of their
intentions to close down and terminate the operations
at the Ozark plant, prevented the Union from bargain-
ing over the effect of the plant closing on the employees
.... It thus appears that the Union, during the most
critical period, and at the very time when bargaining
would have been most productive, was completely
unaware of Respondents ' intention . . . . After so
concealing its intentions from the Union, Respondents
cannot now persuasively argue that it was not required
to bargain with the Union because the Union did not
request such bargaining.
Based on the foregoing analysis , I conclude, in agree-
ment with the General 'Counsel, that Respondent violated
Section 8(a)(5) by its failure to afford the Union a chance
to bargain over its decision to subcontract the laboratory
work and over the effects of that decision on the unit
employees.
V. CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing an
employee as found herein, Respondent engaged in an
unfair labor practice within the meaning of Section 8(a)(1)
of the Act.
2. By unlawfully discharging William Cicala as found
herein , Respondent engaged in an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
3. By contracting out its laboratory work, and concom-
itantly discharging the entire bargaining unit of laboratory
employees, without giving the Union opportunity to
bargain over the underlying decision or its effects on the
unit employees as found herein , Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act in any other
manner.
14 It is worth remembering in this regard that Williams told technician conditions permitted.
Whitehead that Respondent would hire three of the technicians back when
EMPIRE DENTAL CO. 869
VI. REMEDY
To effectuate the policies of the Act, it is recommended
that Respondent be ordered to cease and desist from
unilaterally subcontracting unit work or otherwise making
changes in its employees' terms and conditions of employ-
ment without first consulting with the employees ' designat-
ed bargaining representative ; cease and desist from the
other unfair labor practices found ; and cease and desist
from in any other manner interfering with , restraining,
coercing, and discriminating against , its employees.
Affirmatively, it is recommended that Respondent be
ordered to restore the status quo ante by restoring the
laboratory operation and offering to William Cicala and
the other laboratory employees reinstatement to the
positions they held before their unlawful terminations,
without prejudice to their seniority and other rights and
privileges ; and to make them whole for any loss of earnings
and other benefits suffered because of Respondent's
unlawful discharges of them.15 Their losses of earning shall
be computed as prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716, and F. W. Woolworth Company, 90 NLRB
289.
[Recommended Order omitted from publication.]
15 The Supreme Court expressly considered and approved this kind of
remedy in Fibreboard' 379 U.S, at 215-16. The Board in special
circumstances , however, imposes gentler sanctions . For instance , in Ozark
Trailers, Inc., supra; Royal Plating and Polishing Co., 148 NLRB 545; and
Renton News Record 136 NLRB 1294, it did not order resumption of the
discontinued operations because intervening events had made resumption
inherently impractical . This is not so in the present case , Respondent's
laboratory facility still existing and being used as such by the subcontractor.
Similarly, the Board in those cases relaxed or eliminated the backpay aspect
of the remedy. While imposition of a total backpay remedy in the present
case causes me some discomfort , and doubtless will cause Respondent
more, I see no bases such as existed in those cases for its relaxation or
elimination.