Wisdom Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1981

257 N.L.R.B. 1237 (N.L.R.B. 1981)

WISDOM INDUSTRIES, INC
Wisdom Industries, Inc. and Construction and Gen-
eral Laborers' Union, Local 368, AFL-CIO and
John Mano. Cases 37-CA-1587 and 37-CA-
1644
September 14, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 11, 1981, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Wisdom Indus-
tries, Inc., Honolulu, Hawaii, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
'No exceptions were filed to the Administrative Law Judge's conclu-
sion that Respondent violated Sec. 8(a)(5) by refusing to sign a written
agreement embodying the terms and conditions or employment negotiat-
ed with the Union on October 26, 1979.
Member Jenkins would compute the interest due on hackpay ill as
cordance with his partial dissent itl Olyvmpic iMedical Corporation. 250)
NLRB 146. 148 (1980). Inasmuch as the Administrative Law Judge re-
jects Respondent's defenses to the discharge of Mano as unworthy of
belief, the only genluin Ilotive for the discharge was Mano's union ct i -
ity and, in Member Jenkins' ies, Wright Line. a Diviaon H'right Loi,.
Inc., 251 NL.RH 113 (19R0), is irrelevant and he therefore does not rls
on It.
APPENDIX
NOTICE To EMPI.OYI.i-S
PoST-rED BY ORD.R 01: TIl:
NATIONA. LABOR RI.ATIONS BOARI)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WI: WIll. NOT refuse to bargain collectively
in good faith with Construction and General
Laborers' Union, Local 368, AFL-CIO, as the
exclusive bargaining representative of the em-
ployees in the unit set forth below by refusing
to sign the collective-bargaining agreement
embodying the terms and conditions of em-
ployment on which we reached agreement
with the Union on October 26, 1979.
WE WILI. NOT discharge employees because
they assist or support the Union or engage in
other protected activities, or discourage other
employees from engaging in such activities.
WE WIl.l. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them
by Section 7 of the Act.
WE WILL sign the written contract embody-
ing the terms and conditions of employment
agreed upon with the Union on October 26,
1979, and WE Wlll. give retroactive effect to
the terms and conditions of the agreement to
July 1, 1979.
WE WIL. make whole our employees in the
following appropriate unit for any losses they
may have suffered by reason of our failure to
sign the collective-bargaining agreement with
the Union. The appropriate unit is:
All full time and regular part-time employ-
ees including fabricators, truck drivers and
warehousemen; excluding office clerical em-
ployees, management employees, guards
and/or supervisors as defined in the Act.
WE Wll.l offer John Mano immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights and privileges previously en-
joyed, discharging if necessary any employee
hired to replace him, and wtl wil.l make him
whole for any loss of earnings or benefits he
may have suffered as a result of our unlawful
discrimination against him, with interest.
WISI)OOM INI)USTRIIS, INC.
I)ECISION
SlI'IlMl NI I I01 Ill C \Sl
GORDON J. M v I'I , Administrative a\\ Judge: Upon
a charge filedtl on December 5, 1979.' i Case 37-CA
I tllc,, othel\i Ii illllled. , .111 gt I ltot }ircit Ic'i'ct II 1 ' 5 r ] )3 s
257 NLRB No. 164
12317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1587 by Construction and General Laborers' Union,
Local 368, AFL-CIO, hereinafter called the Union, and
a charge filed on April 11, 1980, in Case 37-CA-1644 by
John Mano, an individual, against Wisdom Industries,
Inc., hereinafter called the Respondent, an order consoli-
dating the cases and a consolidated amended complaint
and notice of hearing was issued on June 24, 1980. The
consolidated complaint alleges that the Union has been
certified as the exclusive collective-bargaining repre-
sentative of the Respondent's employees in an appropri-
ate unit and, after a series of negotiating sessions, the
Union and the Respondent reached agreement on the
terms of a collective-bargaining contract. Further, that
the Respondent refuses to execute and implement the
terms of the agreement reached by the parties. Finally,
the consolidated complaint alleges that the Respondent
unlawfully discharged John Mano because of his activi-
ties on behalf of the Union. It is asserted that this con-
duct on the part of the Respondent violates Section
8(a)(1), (3), and (5) of the National Labor Relations Act,
as amended (hereinafter called the Act), 29 U.S.C. §151,
et seq. The Respondent's answer admits certain allega-
tions of the complaint, denies others, and specifically
denies the commission of any unfair labor practices.
A hearing was held in this matter in Honolulu, Hawaii,
on September 23 and 24, 1980. All parties were repre-
sented by counsel and afforded full opportunity to exam-
ine and cross-examine witnesses and to present material
and relevant evidence on the issues involved. Briefs have
been submitted and have been duly considered.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is, and has been at all times material
herein, a Hawaii corporation with its principal office and
place of business located in Honolulu, Hawaii. The Re-
spondent is engaged in the business of fabrication and
wholesaling rubber and other products. During the past
calendar year, the Respondent received gross revenues in
excess of $500,000 and purchased materials and supplies
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of Hawaii. The pleadings admit, and
I find, that the Respondent is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Construction and General Laborers' Union, Local 368,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Organizing of the Respondent's Employees
The Union began its organizing campaign among the
Respondent's employees in February 1979. Melvin
Cremer, a field representative of the Union, contacted
John Mano, who was then the driver of the Respond-
ent's largest piece of equipment-a tractor-trailer. Mano
was given blank authorization cards by Cremer and
began to solicit signatures from his coworkers. The Re-
spondent's facilities in Honolulu are located in two
places. One is a warehouse and storage area located in
what is designated as Campbell Industrial Park. The Re-
spondent's principal office and other warehouse facilities
are located in an area known as Sand Island, which is
some 20 miles distant from the industrial park. Mano's
duties as a driver of the Respondent's tractor-trailer
caused him to go to both locations frequently, and, while
there, he began to solicit employees to sign authorization
cards for the Union. Mano testified that on occasions he
solicited employees' signatures in front of Randy Komae,
son of the Respondent's president and chief executive of-
ficer, Archie Komae. He also stated that he offered a
card to a nephew of Komae who was working at the
Sand Island location, but did not receive a favorable re-
sponse.
The Union filed a petition for an election with the
Board's offices and an election was conducted on March
21. On March 29, the Union was certified as the exclu-
sive bargaining representative of the Respondent's em-
ployees in an appropriate unit.2
After the certification of the Union, Cremer visited
Respondent's Campbell Industrial Park facility quite fre-
quently to discuss matters relating to the employment
conditions of the unit employees with Mano. Cremer tes-
tified that Archie Komae asked him to notify the Re-
spondent's officials in advance of his visits so as not to
disrupt the Respondent's operations while the employees
were working. Cremer stated he made it a practice to
inform Douglas Kema, the Respondent's division man-
ager at the Campbell facility, before coming on site to
speak with Mano.3 In addition to visiting the Respond-
ent's facility to talk with Mano, Cremer stated he would
call the Respondent's offices two or three times a week
and leave messages for Mano to contact him. Because of
the frequent calls, the Respondent's office girl would
often ask if he were the "union guy" when he sought to
leave messages for Mano. Cremer testified, however, that
the Respondent's officials were never formally notified
by the Union that Remalo or Mano had been appointed
union steward for the bargaining unit.
B. The Negotiations for a Collective-Bargaining
Agreement
According to the testimony of Cremer, after the Union
won the election, Archie Komae stated that he did not
know anything about negotiating a labor agreement and
2 The unit was described as:
All full-time and regular part-time employees including fabricators,
truck drivers and warehousemen; excluding office clerical employ-
ees, management employees, guards and/or supervisors as defined in
the Act.
' It is evident from the testimony that Mano was the principal employ-
ee organizer for the Union at the Respondent's facilities. Although an
older employee, Manny Remalo was appointed shop steward at Mano's
suggestion after the election, Mano became the steward in October 1979,
when Remalo quit his job with the Respondent. Nevertheless, it is appar-
ent that Cremer relied on Mano and relayed information to the employ-
ees through him even during Remalo's tenure as union steward.
1238
WISDOM INDUSTRIES, INC.
would have to get an attorney to represent him. Cremer
stated Komae asked if he knew of any attorneys, but
Cremer declined to recommend one.
Komae testified that he met with Cremer at the Re-
spondent's Sand Island office after the election. Accord-
ing to Komae, the parties discussed how they were
going to go about negotiating a collective-bargaining
agreement. Since he had no one representing him,
Komae stated he told Cremer, "You will be hearing
from us." Thereafter, according to Komae, he contacted
the law firm which represented the Respondent's corpo-
rate interests and the labor negotiations were turned over
to Mark Bleuenstein of that same firm.
Norman Janicki, Jr., a field representative, was the co-
ordinator of the Union's negotiation efforts with the Re-
spondent. Janicki testified that he consulted with Cremer
and drafted a copy of a collective-bargaining agreement
which he submitted to Bleuenstein in mid-May. Janicki
stated that, while he had been advised by Cremer that
Bleuenstein was representing the Respondent in the ne-
gotiations, he had never received any formal notification
to this effect from Komae nor had he ever received any
statement from the Respondent limiting Bleuenstein's au-
thority. An initial meeting was set up between the union
representatives and Bleuenstein in June and the parties
went over the Union's proposals. Janicki testified that
there were several meetings with Bleuenstein over a
period of months, but that Komae only attended one
meeting. According to Janicki, Komae traveled exten-
sively to the mainland and Bleuenstein was the only one
who appeared on behalf of the Respondent at most of
the negotiations. Sometime in early October, Bleuenstein
advised the union representatives during a negotiation
session that he was going to have to go into the hospital
to have surgery. He introduced Peter Wheelon, another
member of his law firm, to the union representatives and
stated that Wheelon was going to handle the negotiations
for the Respondent during Bleuenstein's hospitalization.
Janicki testified that the union representatives were upset
and concerned because the negotiations had covered an
extended period of time and a new attorney was being
introduced to proceed on the Respondent's behalf. Short-
ly after this meeting the Union requested some informa-
tion of the Respondent. Wheelon stated he sought to get
the information so that he could provide it to the Union,
but in the interim the union representatives contacted the
Federal mediator to set up a meeting between the par-
ties.
On October 26, a meeting was held at the offices of
the Federal mediator. Wheelon and Gary Kuioka, the
Respondent's controller, attended the meeting on behalf
of the Respondent.4 Janicki, Cremer, and Saguibo, all
field representatives, attended on behalf of the Union.
The testimony of Janicki and Wheelon indicates that the
parties were engaged in negotiations with the mediator
for an entire day and that all items of a collective-bar-
gaining agreement were discussed and finally agreed
upon. At the conclusion of the meeting, all of the parties
agreed with the mediator that they had arrived at a col-
' Wheelon testified Kuioka was present because he had requested that
the Respondent provide him with someone to attend the meeting who
had authority to negotiate an agreement.
lective-bargaining agreement. Wheelon testified that the
Union was to draft a document embodying the terms
agreed upon at the meeting and after he had reviewed it,
he was to deliver it to the Respondent's president and
controller for execution. Janicki testifed that the media-
tor asked all of the parties whether or not they had an
agreement and they all concurred that an agreement had
been reached. According to Janicki, Kuioka had nodded
his head to indicate assent when the mediator posed this
question. Janicki stated that at the conclusion of the
meeting all of the parties shook hands and left.
Subsequent to the meeting on October 26, Janicki put
the terms of the agreement in a written document. He
stated that he was in touch with Wheelon concerning
grammatical changes and minor changes in language and,
after the document was completed sometime in Novem-
ber 1979, Wheelon came over to the Union's headquar-
ters and picked up a copy to review and deliver to the
Respondent.5 Janicki testified that after a period of time
had expired and he had not received a signed copy of
the agreement, he called Wheelon to find out what hap-
pened to the document. According to Janicki, Wheelon
stated he no longer represented the Respondent and the
Union would have to go directly to Komae to inquire
about the document. Wheelon testified that, when Jan-
icki called him about the contract, he told the union rep-
resentative that it was in the hands of his client. Wheelon
stated he never received a copy of the executed agree-
ment from Komae. Janicki testified that, after speaking
with Wheelon, he called Komae directly and was told
that the union representatives would have to talk with
Jimmy Pflueger, who Komae indicated was the apparent
financial backer of the Respondent.
Janicki made an appointment to meet with Pflueger at
union headquarters. He testified that when Pflueger came
in he was accompanied by four other "wide-shouldered,
unsmiling" individuals. Janicki stated that Pflueger intro-
duced these individuals as also having a financial interest
in the Respondent. Two of the persons accompanying
Pflueger were introduced to Janicki as the Perry broth-
ers and one was known as "Black" Perry. Janicki testi-
fied that Pflueger said he did not like the collective-bar-
gaining agreement and now that the parties had met with
the mediator they could start negotiating.6 Janicki re-
fused to engage in further negotiations and stated that
the parties had an agreement which only required the
signature of a person who could bind the Respondent.
Black Perry and Pflueger stated, according to Janicki,
that they would close down the Respondent's facilities
and the employees would be without jobs. Black Perry
also told Janicki that if the Union put up a picket line, he
knew how to "bust it." Janicki stated that Black Perry
said that the Respondent could not live with the negoti-
ated agreement and that he never heard of a contract
that could not be renegotiated. Janicki steadfastly refused
to renegotiate the agreement and maintained that the
parties had agreed upon the terms for the contract. The
only thing that remained was the formality of signing the
A copy of the document picked up by Wheelon was admitted into
evidence as G.C Exh. 4.
Pflueger was not called as a witness in these proceedings
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
document. He told Pflueger that, if the Respondent were
not going to sign the contract, the Union's only alterna-
tive was to file charges with the Board. Janicki testified
that at this point Pflueger and those accompanying him
turned and left and Pflueger stated, "Well, then I'll see
you in court."
Archie Komae testified that after the Respondent re-
tained Bleuenstein from the offices of the corporate at-
torney, he informed the attorney that he reserved the
right of approval over any matters negotiated with the
Union. Komae acknowledged that he did not tell the
union representatives that he had reserved this right of
approval. Komae stated that he attended one meeting
with the union representatives in Bleuenstein's office.
After this initial meeting, Komae never appeared at the
negotiating sessions but stated that Kuioka attended the
meetings as the representative of management. Komae
further stated that it was his understanding that the meet-
ing with the Federal mediator was to discuss wages and
other economic benefits. He also indicated that none of
the noneconomic terms had been accepted by him at the
time of the meeting with the mediator. Komae testified
that, when he received a final copy of the collective-bar-
gaining agreement, he had to call Wheelon to find out
what the document purported to be. According to
Komae, none of the terms had ever been discussed with
him or Pflueger.' Komae stated that he then delivered a
copy of the agreement to Pflueger and left the matter in
Pflueger's hands.
C. The Discharge of Mano
Mano testified that the Respondent's officials were
aware of his activities on behalf of the Union. He stated
that Edwin Souza, his immediate supervisor and the Re-
spondent's distribution manager, told him both before
and after the election that the employees would not get
the raises or have better benefits, because of you guys
bringing in the Union. He also stated that, he frequently
met with Cremer on the job and, management officials as
well as relatives of Komae were aware of these meetings.
On April 18, 1980, Mano brought a trailer to the
Campbell Park site from Sand Island. He was preparing
to back the trailer into a loading area. He either did not
see or misjudged the distance between the back of his
trailer and a forklift truck being operated by another em-
ployee. The forklift operator, David Keopuhiwa, was
backing out of the same location which Mano intended
to back the trailer. As Mano put his truck into reverse,
he struck the forklift as it was backing out. There is testi-
mony that there was extensive damage to the forklift al-
though no injury was suffered by Keopuhiwa. Kema,
who was acting as manager of the Campbell operation
that day, came on the scene and instructed Mano to
remain there while he got in touch with Kuioka. Mano
observed Kema going into the office attempting unsuc-
cessfully to contact Kuioka by phone. Kema subsequent-
ly sent Mano out on his regularly scheduled runs but at
noon called him in to fill out an accident report. When
I Komae identified Pflueger as the financial backer of the Respondent's
firm. He stated that Pnueger was the corporate secretary and treasurer of
the Respondent.
Mano finished the report, Kema informed him that he
was discharged because he had too many vehicle acci-
dents while employed by the Respondent.
Mano testified that, while he had other accidents with
equipment at the Respondent's facilities, there was never
an accident which involved another vehicle. He ac-
knowledged on cross-examination that in November 1978
a load shifted and fell off a truck he was driving. He also
stated that, in June 1979, he backed into a building at the
warehouse and, in November of that same year, dropped
some pipes he was unloading with a forklift truck. He
further acknowledged that, in December 1978, he backed
his truck into a building. According to Mano, accidents
frequently happened with the Respondent's equipment
and that other employees had accidents as severe or
more severe than he had on April 18, but they were
never discharged or disciplined to his knowledge. Mano
stated that, while he was employed by the Respondent,
Souza hit a tree with one of the Respondent's trucks and
caused extensive damage. Another employee, Youshi-
mura, demolished a company-owned Pinto. Another em-
ployee, according to Mano, was learning to drive a flat-
bed truck and struck a passenger car in the process.
Mano further testified that he had never been suspended
or reprimanded for any of the accidents he had prior to
April 18.
Souza testified that he was in the hospital recovering
from injuries suffered in an automobile accident at the
time Mano collided with the forklift truck. He stated that
Kema called the hospital and informed him about Mano's
accident. According to Souza, Kema had looked into
Mano's personnel file to check his past record of acci-
dents. Souza stated he and Kema then arrived at a deci-
sion to fire Mano. Souza further stated that, while other
employees had been involved in accidents with company
equipment in the past and were not discharged, none had
as many accidents as Mano, nor did the damages result-
ing from their accidents cost as much as those caused by
Mano. Souza asserted that in the past he had warned all
employees involved in accidents, including Mano, that if
they continued to have accidents they would be termi-
nated. Souza denied any knowledge of Mano's activities
on behalf of the Union and stated this was not a factor in
the decision to discharge him.
Kema testified he was angry when he went into the
dock area to see about the accident on April 18. He
stated the employees were laughing and seemed to take
the incident lightly. He tried to contact Kuioka but was
unsuccessful. He then called Souza at the hospital and
discussed the accident with him. According to Kema,
Souza suggested that he pull Mano's personnel file and
look at the employee's past record of accidents. Kema
did so, and he and Souza agreed that Mano should be
terminated. Kema acknowledged that he had never
pulled an employee's personnel file in the past. He also
admitted that he had heard rumors about Mano's in-
volvement with the Union, but denied that he and Souza
took this into consideration in deciding to terminate
Mano.
Kuioka stated that he was informed about Mano's acci-
dent by Kema. According to Kuioka, Kema reported
1240
WISDOM INDUSTRIES, INC.
that he had discussed the incident with Souza and they
had decided to fire Mano. Kuioka testified he concurred
with the decision after reviewing Mano's personnel file.
He acknowledged that he had never pulled an employ-
ee's personnel file in the past in order to determine
whether to discharge an employee. However, Kuioka
told Kema to delay discharging Mano until he, Kuioka,
had an opportunity to sit with Kema and discuss the
matter. Kuioka stated this was done later in the day and
Mano was fired. Kuioka denied that Mano's union activi-
ties entered into management's decision to discharge him.
Concluding Findings
The General Counsel argues that the Respondent and
the Union had reached complete agreement on the terms
of a collective-bargaining contract when the parties con-
cluded their negotiations with the assistance of the Fed-
eral mediator on October 26, 1979. The Respondent con-
tends, however, that Wheelon, as well as the attorney he
replaced during the negotiations, did not have authority
to bind the Respondent in the negotiating process, and
that the Respondent's president reserved the right of ap-
proval over any matters agreed upon by the negotiators.
The evidence in the record does not, in my judgment,
support the Respondent's contentions.
It is apparent that, after the election in March, Komae
chose to bargain with the Union through an attorney be-
cause he had no experience in negotiating a collective-
bargaining agreement. Thus, Cremer credibly testified
that Komae told him after the Union won the election
that he knew nothing about negotiating labor contracts
and would have to get an attorney. Indeed, Komae testi-
fied he had no one to turn to and he told the union rep-
resentative, "You will be hearing from us" when asked
about negotiating a contract. After he retained the serv-
ices of the Respondent's corporate attorneys and Bleuen-
stein commenced negotiations on the Respondent's
behalf, Komae only attended one bargaining session
during the entire time the parties were engaged in nego-
tiations between June and October 1979. Therefore, he
made it evident to the union representatives that he was
relying on Bleuenstein and his subsequent replacement,
Wheelon, to negotiate an agreement on behalf of the Re-
spondent. By his own admission, Komae never informed
the union representatives that he was limiting the author-
ity of his attorneys by reserving the right to approve any
terms they agreed upon during the bargaining sessions.
Having failed to do so, Komae clearly gave the union
representatives every reason to believe that the Respond-
ent's attorneys had full authority to conduct the negotia-
tions and enter into a binding agreement. Deluxe Poster
8 The Respondent's answer also denies that the Union has been the ex-
clusive collective-bargaining representative of the unit employees since
March 29. 1979. This contention is patently without merit since the
Union was certified by the Board on that date and the certification was
never contested by the Respondent. It is well settled that a newly certi-
fied union enjoys an irrebuttable presumption of majority status for at
least a year, absent unusual circumstances not present here, and a rebutta-
ble presumption thereafter or at the expiration of an initial collective-bar-
gaining agreement. Cf. Enidine. Inc., 251 NLRB 1262, fn. 2 (1980). Since
the Respondent has offered no evidence whatsoever to controvert either
presumption, its denial of the Union's exclusive representative status must
be rejected
Co., Inc., d/b/a Johnson Printers, 238 NLRB 335, fn. 2
(1978); Adams Iron Works, Inc., 221 NLRB 71 (1975).
I find that by this conduct, Komae had vested his at-
torneys with at least apparent authority, if not actual au-
thority, "to enter into an understanding that would be
embodied into a written agreement and signed."
N.L.R.B. v. Donkins Inn. Inc., 532 F.2d 138, 141 (9th
Cir. 1976). Therefore, when Wheelon, substituting for
Bleuenstein, and the union representatives reached agree-
ment on the terms of the contract and assured the media-
tor that they had an agreement, the parties entered into a
binding agreement which only remained to be reduced to
writing and executed. N.L.R.B. v. Donkins Inn, supra.'
Lozano Enterprises v. N.L.R.B., 327 F.2d 814 (9th Cir.
1964). Accordingly, when Janicki made the language
changes in the final document and these changes were
reviewed and approved by Wheelon, the Respondent's
president was then under an obligation to sign the agree-
ment and implement its terms.
Moreover, it is apparent that Komae and Pflueger, the
Respondent's financial backer, felt a valid agreement had
been negotiated but were simply dissatisfied with its
terms. When Pflueger and his associates met with Jan-
icki, the main thrust of their objections was that the con-
tract terms were too generous and would have to be re-
negotiated. Indeed, Black Perry told Janicki he never
heard of a contract "that couldn't be renegotiated." It
becomes evident, therefore, that the Respondent's repre-
sentatives were conceding a valid agreement had been
negotiated, but they were not prepared to accept its
terms.
In light of the above, I find that an agreement was
reached by the negotiators and the Respondent was
under a duty to execute the contract embodying the
terms of the agreement when requested to do so by the
Union. In refusing to sign the written contract upon re-
quest of the Union, the Respondent breached its statu-
tory obligation and violated Section 8(a)(5) and (1) of the
Act.
Regarding the discharge of Mano, I also find that the
Respondent has committed further violations of the Act.
There is no question whatsoever but that Mano was the
principal union advocate among the employees. Prior to
the election he was the person who solicited employee
signatures on authorization cards and set up meetings be-
tween the employees and the union representatives. After
the election, although he was not the initial union ste-
ward, Mano nevertheless remained the chief contact for
the Union at the Respondent's facilities. Cremer credibly
testified that he visited Mano during working hours at
the Respondent's premises after getting permission from
the supervisors to talk to the employee. He also left tele-
phone messages at least two or three times a week with
the Respondent's personnel requesting that Mano contact
him. In spite of the open and unconcealed manner in
which the union representative maintained contact with
Mano at the Respondent's operations, Kema testified that
he had no direct knowledge of Mano's activities on
behalf of the Union and Souza disclaimed any knowl-
edge whatsoever of the employee's union activities. For
this reason, I discredit their testimony in this regard and
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find they were deliberately denying knowledge of
Mano's union involvement in order to absolve them-
selves of any wrongdoing when they terminated the em-
ployee. I likewise place little credence to their state-
ments, or that of Kuioka, that Mano's union activities
were not considered or discussed when the decision was
made to discharge him.
When considered in this context, the Respondent's as-
serted justification for discharging Mano-that he had
too many costly accidents-becomes less persuasive and
is indeed suspect. This is especially true since the prior
history of management's treatment of employees in-
volved in vehicular accidents shows that no employee
was ever fired for having an accident. This is the case
even though the record discloses that other employees
were involved in more than one accident and the dam-
ages were as great as, if not greater in some instances
than, that caused by Mano.
Considering all of these factors, I find the record war-
rants the conclusion that, had Mano not been the princi-
pal activist for the Union at the Respondent's operation,
he would not have been discharged on April 18. Rather,
the past practice up to the time of this particular incident
gives rise to a strong inference that he would have been
verbally admonished and nothing more.
For these reasons, I find that the Respondent's dis-
charge of John Mano violated Section 8(a)(3) and (1) of
the Act. Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980).
CONCLUSIONS OF LAW
1. The Respondent, Wisdom Industries, Inc., is an em-
ployer within the meaning of Section 2(2) of the Act en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Construction and General Laborers' Union, Local
368, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit constitutes an appropriate unit
for purposes of collective bargaining within the meaning
of Section 9(b) ot the Act:
All full-time and regular part-time employees in-
cluding fabricators, truck drivers and warehouse-
men; excluding office clerical employees, manage-
ment employees, guards and/or supervisors as de-
fined in the Act.
4. Since March 29, 1979, the Union has been the duly
certified and designated exclusive representative of the
employees in the unit described above within the mean-
ing of Section 9(a) of the Act.
5. By unlawfully refusing to execute the written con-
tract embodying the terms and conditions of a collective-
bargaining agreement reached with the Union on Octo-
ber 26, 1979, the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the
Act.
6. By unlawfully discharging employee John Mano on
April 18, 1980, because he was the leading union activist
at the Respondent's facilities and in order to discourage
employees from engaging in activities on behalf of the
Union, the Respondent has violated Section 8(a)(1) and
(3) of the Act.
7. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent committed unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, it shall be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. The Respondent shall
be ordered to sign the written contract embodying the
terms of the collective-bargaining agreement reached be-
tween it and the Union on October 26, 1979, and give
retroactive effect to its terms to July 1, 1979. The Re-
spondent shall also be ordered to make whole its em-
ployees for any loss of wages or other employee benefits
they may have suffered as a result of the Respondent's
failure to sign the collective-bargaining agreement. In ad-
dition, the Respondent shall be ordered to offer John
Mano immediate and full reinstatement to his former po-
sition or, if that position no longer exists, to a substantial-
ly equivalent position, discharging, if necessary, any em-
ployee hired to replace him. The Respondent shall also
make Mano whole for any loss of earnings or benefits he
may have suffered by reason of the Respondent's unlaw-
ful conduct against him. Interest on all wages or benefits
due herein shall be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977). 9 How-
ever, nothing herein shall be construed as requiring the
Respondent to revert to wage or benefit levels below
those currently in force. Seacrest Convalescent Hospital,
230 NLRB 23 (1977); Harold W. Hinson, d/b/a Hen
House Market No. 3, 175 NLRB 596 (1969).
Upon the foregoing findings of fact, conclusions of
law, the entire record in this case, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 1
The Respondent, Wisdom Industries, Inc., Honolulu,
Hawaii, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Construction and General Laborers' Union, Local 368,
AFL-CIO, by refusing to sign the written contract em-
bodying the terms of the collective-bargaining agreement
reached by the parties on October 26, 1979.
(b) Discharging employees because they assist or sup-
port the Union or engage in other protected activities,
and in order to discourage other employees from engag-
ing in such activities.
9See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
"' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
1242
WISDOM INDUSTRIES, INC.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Forthwith sign the written contract embodying the
terms of the collective-bargaining agreement which the
parties reached on October 26, 1979. Upon execution of
said agreement, give retroactive effect to the provisions
thereof to July 1, 1979, and make whole its employees
for any losses they may have suffered by reason of the
Respondent's failure to sign the agreement in conformity
with the section of this Decision entitled "The Remedy."
(b) Offer to John Mano immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges. In
addition, make this employee whole for any loss of
wages or benefits he may have suffered by reason of the
discrimination against him in conformity with the section
of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records neces-
sary and relevant to determine the amounts owing under
the terms of this recommended Order.
(d) Post at its Columbus Industrial Park and Sand
Island facilities located in Honolulu, Hawaii, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 20, after having been duly signed by the Re-
spondent's authorized representative, shall be posted im-
mediately upon receipt thereof and maintained for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days of the date of this Order, what
steps the Respondent has taken to comply herewith.
I' In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals, the words in the notice reading "Posted by
Order of the National l.abor Relations Board" all read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
1243