Reisman Bros., Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reisman Bros., Inc. and Local 29 , Retail, Wholesale and Department Store Union, AFL-CIO. Case 2-CA-11136. June 14, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 29 , 1967, Trial Examiner Paul E. Weil issued his Decision in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner 's Decision . Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision, with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions of the General Counsel and the Respondent and supporting briefs, and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner, except as modified herein. The General Counsel has excepted to the Trial Examiner's failure to find that Respondent has interfered with , restrained, and coerced, and is interfering with , restraining , and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act, by refusing to meet with Local 29, Retail , Wholesale and Department Store Union , AFL-CIO , the exclusive collective- bargaining representative of Respondent's production and maintenance employees , unless and until Local 29 submitted revised proposals which Respondent would regard as practicable and reasonable . Based upon the record as a whole, we find merit in this exception and will , accordingly, modify the Trial Examiner 's Recommended Order herein to require that Respondent cease and desist from interfering with , restraining , or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act.I Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications: 1. Add the following as paragraph 2 thereof: "2. In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act." 2. Renumber existing paragraph 2 as paragraph 3. 3. Add the following indented paragraph to the Appendix: WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their bargaining rights guaranteed in Section 7 of the National Labor Relations Act, as amended. ' Respondent excepts to the Trial Examiner's reference to comparable factory wage rates in New York City in suggesting that the Union's wage demands could he regarded as not so "outrageously unreasonable" as to warrant Respondent's refusal to negotiate The Trial Examiner concedes that no evidence of comparable wage rates was adduced at the hearing We find it unnecessary to consider the reasonableness of the Union's wage demands in disposing of this case and, in any event, we do not adopt the comments and observations of the Trial Examiner with respect to comparable factory wage rates in New York City TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner : On a charge filed October 31 , 1966, by Local 29, Retail , Wholesale and Department Store Union , AFL-CIO, herein the Union, against Reisman Bros., Inc., herein Respondent, the General Counsel issued his complaint on November 28, 1966, alleging that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by failing and refusing to bargain with the Union during the certification year. By its duly filed answer Respondent denied the commission of any unfair labor practices and as an affirmative defense, on facts stated therein, contended that the Union was not prepared to bargain in good faith and that Respondent will bargain at any time provided that the Union too is prepared to bargain in good faith. This proceeding , with all parties represented , was heard before me at New York City on January 12, 1967. After the hearing Respondent and General Counsel filed briefs. Upon the entire record in this case and my observation of the witnesses and in consideration of the briefs, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent , Reisman Bros., Respondent, a New York corporation, engaged, in the city of New York, in the manufacture, sale, and distribution of zippers and related products, annually purchases goods and materials valued in excess of $50,000 which were transported in interstate commerce from States of the United States other than New York to its plant in New York City. Respondent is and at all times material hereto has been an employer engaged in 165 NLRB No. 50 REISMAN BROS., INC. commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES On January 19' the Union filed a petition with the Board, docketed as Case 2-RC-14243, seeking certification of a unit of all production and maintenance employees of the Respondent with the normal exclusions. A joint conference was held prior to a hearing on the petition on February 10. Before the joint conference the Union commenced a strike against Respondent.' At the conference, attended by Joel Pave, the Union's president, Mr. Luxemburg, the Union's attorney, Zoltan Reisman, president of Respondent, and Mr. Persky, his attorney, the Board's representative suggested that the strike be called off pending the determination of the representation issue. Attorney Luxemburg recommended the move to his client but Pave refused to consent and stated that the strike would go on. After the conference Union President Pave drew Attorney Persky aside and said "Look! What is your wise guy trying to do? I tell you, but I will deny it if anybody ever says it, that we will put this guy out of business." Adding an obscene threat, Pave walked away:' The hearing was held February 10 and dealt solely with jurisdiction. The Regional Director found that Respondent was engaged in commerce and recited factually that Respondent in the year 1965 had gross sales of approximately $150,000 and purchased tape and zippers in interstate commerce to a value in excess of $63,000. An election was ordered and conducted on or about March 14. Thereafter on or about August 8, the Regional Director certified the Union as the exclusive bargaining representative of the employees.' On the following day, August 9, Pave addressed a letter to Respondent with a copy to Attorney Persky requesting that Respondent immediately confer with the Union in order to negotiate a contract and stating, "Will you kindly have a representative of your Company authorized to bargain with this Union at our office on August 16, 1966, at 10 a.m. If this time is not satisfactory will you please communicate with us immediately to arrange for a mutually agreeable time." On August 11 Attorney Persky, representing Respondent, and Attorney Goldsmith, representing the Charging Party, agreed by telephone to meet at Persky's office for purposes of collective bargaining on August 16 at 10 a.m. In this conversation Attorney Persky asked that the Union submit written proposals prior to the meeting so that the Respondent, without delay, could be prepared to negotiate with the Union on the 16th. Persky confirmed the conversation with a letter on August 11 again repeating the request that before the conference Respondent be furnished a statement of the Union's requests, in writing, and stating the belief that this would expedite matters considerably. Attorney Goldsmith advised Pave of All dates herein are in the year 1966 unless otherwise noted The date on which the strike commenced and the avowed purpose thereof are not available in the record 391 Respondent's request but no advance notice of the Union's demands was given the Respondent. On the 16th all parties were present at 10 o'clock with the exception of Pave who arrived some 20 minutes late. Immediately upon his arrival Pave and Attorney Goldsmith went to an adjoining room where they discussed the Union's demands one by one. At Attorney Goldsmith's recommendation additional demands were added and some were changed. At the conclusion of the reading of the Union's demands Attorney Persky stated that he was surprised and shocked at the extent of the demands and stated his client would have to go over the demands and consider them with reference to the Respondent's financial situation. He suggested that they meet at a later time to negotiate. He declined to make any counterproposals at this time. Attorney Goldsmith stated that the Union was willing to negotiate or listen to counterproposals on the Company's part. Attorney Persky pointed out that what was happening was precisely what he had foretold; namely, further delay because Respondent hadn't received the proposals before the conference. He informed the Union's negotiators that he would let them know the Company's answer. Thereafter Reisman and Attorney Persky met and computed the cost of the contract to the Company and determined that the cost over a 2-year period totaled $49,957.90 over and above the present labor cost to the Company which in the year 1965 had been approximately $32,000. On August 16 the Union confirmed by letter its demands which included 10 paid holidays, a week's vacation for 6 months' employment, 2 weeks for a year, and 3 weeks for 3 years of employment, union security and checkoff, an immediate wage increase effective to August 16 of 32-1/2 cents an hour with a base for present employees of $1.72 - 1/2 an hour, and an additional wage increase on August 16, 1967, of 20 cents an hour. The Union also demanded 5 percent of the gross wages to be paid to the health and welfare fund and $3 a week to the union pension fund, 5 days' sick leave, and time and a half after 8 hours a day, double time for Sunday work, and double time and a half for holiday work. Attorney Persky, on August 22, wrote to the Union pointing out that the demands would result in an increase in Respondent's wage costs of almost 80 percent and stating that he believed that the demand was made in haste and without proper study by the Union. Persky invited the Union to inspect the computation by which he had arrived at his figures, stated that Respondent will be prepared to discuss the matter further upon the presentation of revised demands more in keeping with the realities of the situation, and suggested that the demands were not made in good faith. On August 25 Attorney Goldsmith addressed a letter to Attorney Persky accusing Respondent of failure of good-faith bargaining in that Respondent made no counterproposals and asked for counterproposals without delay. He concluded with the suggestion of a second bargaining session on September 1. Persky answered on August 30 confirming a bargaining conference for Tuesday, September 6. This conference was called off because Attorney Persky was engaged in court and on September 13 Attorney Goldsmith addressed Pave did not appear at the hearing The record does not disclose the reason for the delay in certification between March 14 and August 8 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a letter to Persky suggesting a meeting on September 22 and asking again for counterproposals. On September 27, Attorney Goldsmith called Persky and asked for a meeting. Persky declined to meet until the Union submitted more reasonable proposals. On October 4, after a discussion with Pave, Goldsmith wrote another letter to Attorney Persky submitting revised demands calling for a wage increase of 28-1/2 cents an hour retroactive to August 16 and an additional 18 cents an hour effective August 16, 1967, reducing the number of paid holidays to nine and calling for a negotiating meeting on October 11. On October 18 Attorney Persky wrote to the Union and pointed out that the revised demands would increase the Company's cost for labor $48,605.90 over a 2-year period, again pointing out that the entire payroll for the last year before the strike was $32,000 and that the proposal would increase wage costs almost 80 percent. Persky stated, "I failed to see how even these revised demands could have been made in good faith by your office, and accordingly I can see no point in arranging another conference at this time." The letter ended with the statement that Respondent was prepared at all times to negotiate in good faith upon receipt of demands that are practicable and reasonable. The Union's response was to file the instant charges. Conclusions The General Counsel contends that Respondent refused to bargain by its refusal not only to counterpropose but even to meet until the Union again lowered its demands to a point which the Respondent considered reasonable. Respondent contends that it has no duty to bargain in view of the demonstrated bad faith of the Union deduced from the threat of Union President Pave to put Respondent out of business and the Union's demands, which amounted to an 80-percent increase in wage expenses to Respondent. Respondent relies on N.L.R.B. v. Kentucky Utilities Company, 182 F.2d 810 (C.A. 6). In that case the company refused to bargain with a union negotiating committee which included one Braswell who had, as had Pave in the instant case, threatened to destroy the employer financially. The court said: Collective bargaining is a two-sided proposition; it does not exist unless both parties enter the negotiations in a good faith effort to reach a satisfactory agreement .... With Braswell acting as one of the negotiators for the Union, any meeting with the negotiators would not have fulfilled the requirements of collective bargaining. His expressed hostility to the respondent and his purpose to destroy the respondent financially made any attempt at good faith collective bargaining a futility. Just as collective bargaining in form only and lacking in substance has been condemned, certainly collective bargaining in form only without good faith negotiating on the other side should not be required. As the Trial Examiner stated in Valley Date Gardens, Inc., 144 NLRB 1544,1550, several decisions within recent years reflect the Board's general concurrence with judicial determinations that employers may properly refuse to recognize or deal with particular union representatives whose conduct or statements reflect such underlying hostility directed against the firm as to make collective bargaining a futility. The decisional doctrine noted, however, has been given limited scope; Board declarations with respect to its validity have routinely appeared as dicta in cases considered factually distinguishable. I find that the situation had not changed since 1963 when Valley Date was written. Kentucky Utilities still is cited with approval and is yet to be followed. It appears to me that the point is valid. There must be a time at which the Union's bad faith in making its demands is so overt as to place the Respondent in the position where it need not respond to the Union's demand for bargaining but may refuse to bargain until the Union makes a more reasonable approach. The question is a factual one, in my opinion, and one in which the facts must be rigorously examined. In the instant case Respondent started out with the threat of Pave to put it out of business, and the strike, which, as far as I know, continues to the day of this writing. From the Respondent's viewpoint, the demands of the Union could well appear to have indicated a purpose to put it out of business. An 80-percent increase in wage expenses unquestionably sounds unreasonable, especially at a time when the President of the United States was advocating restriction of wage increases to 3 or 4 percent. But a closer examination of the Union's demand throws some doubt into the picture. The starting wage demanded by the Union of $1.55 per hour, for a factory located in the metropolitan area of New York, does not seem so outrageously unreasonable nor does a wage for employees employed prior to August 16 of $1.70 an hour which is the wage called for in the Union's second demand.5 The demand of 5 percent health and welfare and $3 per week per employee for the pension fund is not substantially different from that found in many union contracts. The 8-hour day is standard and the nine paid holidays are increasingly finding acceptance in negotiated contracts. It appears to me that we must go one step further than merely to look at the increase in cost to the Employer. It is not inconceivable that the Employer was operating with wage standards below that of its competitors or, on the other hand, that Respondent used a class of employees who for one reason or another are not ordinarily paid by the same wage standards as employees of other employers. No evidence was adduced in this regard. Presumably Respondent's employees were paid at least the minimum wage but whether Respondent's employees were paid wages comparable to that in other similar enterprises is not revealed by the record. If, in fact, Respondent's employees are underpaid in terms of the marketplace it should not necessarily be shocking to it to be met with demands such as those promulgated by the Union. It appears to me that the quantum of proof must be high to entitle Respondent to escape the action of the express terms of the statute, which provides that the duty to bargain includes the duty to meet and negotiate in good faith. This is not an issue so much of the Respondent's good faith, but rather of whether the evidence available to 5 The annual survey of the Bureau of Labor Standards for 1964 stated that average hourly earnings of production workers in New York City factories was $2.56. REISMAN BROS., INC. the Respondent is so overwhelmingly convincing of the Union's bad faith that it need not take the minimal step required by the statute of meeting the Union face to face and telling the Union in what respects it regards its demands as unreasonable. Respondent does not question the propriety of the unit nor the Union's representative status. The employees have a right to be represented and they chose this Union by secret ballot. The good faith of the Union is easily capable of a test by Respondent. It would have had only to meet and negotiate to test whether, in fact, the Union was as intransigent as Respondent contends. I do not presume to say that the union demands are irresponsible or outrageous. I do not know whether they are within or without the range of wages and working conditions in the industry in which Respondent is engaged. But I believe that Respondent has the duty to take at least one more step and put its belief to the test. If the Union is in fact intransigent and its demands are in fact beyond the reach of Respondent it should quickly be apparent and an impasse would result. At this point Respondent is relieved of its duty to bargain further. I find that Respondent has, as charged, failed and refused to bargain within the meaning of Section 8(a)(5) of the Act. THE REMEDY I shall recommend an order requiring the Respondent to cease and desist from its unlawful conduct. In view of the narrowness of the issue presented and the fact that Respondent has declared its willingness to meet and bargain with the Union under conditions it deems reasonable, I shall not recommend any broader cease-and- desist order. Affirmatively I shall recommend an order requiring Respondent, upon request, to bargain with the Union until it reaches either an impasse or a contract. Accordingly, upon the foregoing findings of fact and conclusions of law and on the record as a whole, I recommend, pursuant to Section 10(c) of the Act, the following: ORDER Respondent, Reisman Bros., Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain in good faith with Local 29, Retail, Whole and Department Store Union, AFL-CIO, as the exclusive representative of the employees in the unit certified as appropriate in Case 2-RC-14243. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Upon request of the aforesaid certified bargaining representative, bargain with it in good faith with respect to wages, hours, and working conditions. 393 (b) Post at its plant in New York, New York, copies of the attached notice marked "Appendix.-6 Copies of said notice, to be furnished by the Regional Director for Region 2, after being duly signed by an authorized representative of the Respondent, 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. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.7 " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " r In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify employees that: Upon request of Local 29, Retail , Wholesale and Department Store Union , AFL-CIO, the exclusive bargaining representative of our production and maintenance employees , WE WILL bargain with it in good faith concerning wages, hours, and working conditions of our employees. REISMAN BROS., INC. (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 5th Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500.