Underwriters Adjusting Co.

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Underwriters Adjusting Company and Teamsters Lo- cal No. 1 (American Communications Association) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 22-CA-5758 October 29, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 21, 1974, Administrative Law Judge George L. Powell issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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. This 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 to the extent consistent herewith and to adopt his recom- mended Order. Because the instant case is both an outgrowth and a continuation of prior unfair labor practices com- mitted by this Respondent against the same Union, a brief history of the tortured relations between these parties is useful. On March 6, 1968, the Union was certified in separate units as the bargaining repre- sentative of Respondent's claims adjusters, examin- ers, and investigators employed at Respondent's New York City and Newark, New Jersey, branches. On the following day, Respondent refused the Union's request to bargain collectively with it. Un- fair labor practice charges were subsequently filed by the Union, a complaint was issued on June 26, 1968, and the Board handed down a Decision and Order in which it found that Respondent had engaged in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.' The Board's Order re- quired Respondent to bargain in good faith with the Union. On April 15, 1969, the United States Court of Appeals for the Second Circuit enforced the Board's Order.2 Thereafter, Respondent filed a petition for certiorari, which was denied on November 10, 1969.' Following the denial of Respondent's petition for certiorari, the Union renewed its request to bargain with Respondent and negotiations began on Decem- i Continental Insurance Company, 172 NLRB 406 (1968) 2 Continental Insurance Company v N L R B, 409 F 2d 727 3 Continental Insurance Company v N L R B, 396 U S 902 ber 5, 1969. However, some 27 bargaining sessions later, plus 4 meetings in which the parties discussed bargaining grievances, the parties again found them- selves locked in litigation before this Board. Thus, on June 9, 1970, the Union filed charges against Re- spondent alleging that Respondent was not bargain- ing in good faith. A complaint issued and, on July 11, 1973, the Board affirmed, in toto, the carefully docu- mented decision of Administrative Law Judge Her- bert Silberman, finding that Respondent had en- gaged in bad-faith bargaining within the meaning of Section 8(a)(5) and (1) of the Act.4 In so doing, the Board relied on the entire scope of Respondent's bar- gaining conduct, which included, inter alia, (1) uni- laterally transferring employees out of the Newark bargaining unit to its newly created Hackensack, New Jersey, office; (2) taking unreasonable and arbi- trary positions throughout the negotiations; (3) refus- ing to include age, sex and union activities in its no- discrimination clause; (4) insisting on contract pro- posals that offered less benefits than those the em- ployees currently enjoyed; and (5) generally making proposals that had the net effect of degrading the Union before its members and undermining the Union's efforts to reach a fair collective-bargaining agreement. Among these proposals, the Administra- tive Law Judge singled out for special criticism, inter a/ia, the Company's vacation, holiday, discharge, company car, health, welfare, and retirement propos- als. The Board again ordered that Respondent bar- gain with the Union in good faith upon the Union's request. Subsequent to the Administrative Law Judge's Decision in that case the parties resumed their negotiations in connection with the New York- Newark units and Respondent did modify some of its contract proposals. On April 9, 1974, the Circuit Court of Appeals for the Second Circuit granted en- forcement of the Board's Order,' noting that there was ample evidence to support the Board's findings. This brings us to the instant case. As indicated su- pra, at least some of the employees in the Hacken- sack branch were originally members of the Newark bargaining unit who were unilaterally transferred by the Company to Hackensack without first consulting with the Union. In this regard, it is worth noting that, when confronted by the Union about the unilateral Continental Insurance Company and Underwriters Adjusting Company, 204 NLRB 1013 Chairman Miller concurred in part and dissented in part He Joined the Board in its conclusion that Respondent had violated Sec 8 (a)(5) and (1) of the Act by failing to notify the Union in advance of Respondent's intent to transfer employees from one of the units to a new office in Hackensack, New Jersey (the office here in question), and by unilaterally establishing overtime rates for the work of packing and shipping its files to the new Hackensack office Otherwise he dissented from the 8(a)(5) violations found by his colleagues 5 Continental Insurance Company v N L R B, 495 F 2d 44 214 NLRB No. 58 UNDERWRITERS ADJUSTING CO. 389 transfer of these employees, Respondent emphatical- ly contended that it would not recognize the Union as the collective-bargaining representative of the em- ployees at the Hackensack branch unless the Union obtained the Board's certification. The Union there- after filed a petition and, on May 31, 1973, it was certified by the Board as the collective-bargaining representative in a unit of claims adjustors, claims examiners, and claims representatives employed by Respondent at its Hackensack office. The parties held two collective-bargaining sessions in connection with the Hackensack unit-on July 23 and November 30, 1973. Prior to their first meeting, the Union submitted to the Company a contract pro- posal which, except for a few minor changes and an increase in its wage demand, was identical to the original proposal it had made to the Company in 1969 in connection with the New York-Newark ne- gotiations. At their first meeting, by way of counter- proposal, Respondent offered the final contract pro- posal which it had made in the New York-Newark negotiations. Unlike that offer, however, Respondent failed to make a wage proposal. During this meeting, the parties went over the Union's proposal, but no progress was made toward agreement. At the November 30 bargaining session, Respon- dent again insisted upon its last New York-Newark contract, but it indicated that it would consider its wage position and would be prepared to make a wage proposal. This it never did. The Union, in turn, indicated that it was willing to accept all of the Respondent's proposals on fringe benefits, as it had ultimately done in the New York-Newark negotia- tions, but it insisted on mandatory arbitration of grievances, layoffs in reverse order of seniority, over- time on a daily and weekly basis, an improvement in the Company's overly broad management rights clause, and a "decent" wage increase. Respondent, on the other hand, remained adamant and made no concessions.' The meeting broke off without an agreement being reached. Subsequent to the November 30 meeting, William Bender, the Union's chief negotiator, consulted with the unit employees regarding Respondent's request that the Union reconsider its position in the areas that were keeping the parties apart. In early January 1974, Bender telephoned Frederick Shea, one of the Company's negotiators, as well as one of its attor- neys, and informed him that the Union did not wish to change its position. Shea responded that, in light of the Union's position, a discussion with respect to 6 At this meeting, Respondent did submit two proposals-one a bulletin board proposal and the other a visitation rights proposal However, Respon- dent had already made these proposals at the New York-Newark negotia- tions and they had been found objectionable to the Union wages would not present an opportunity to resolve the impasse between the parties. Bender answered that this depended on what wage proposals Respon- dent was willing to make. Shea indicated that the Company's wage proposal would not be substantially different from what the Company had offered in their New York-Newark negotiations and that he saw no sense in continuing to meet further unless the Union modified its position. Bender insisted, asking "are you going to make a wage proposal?" Shea re- sponded, "There is no sense in doing it at the present time." The parties then agreed that Shea would send Bender a letter, apparently to formalize the Company's position. Subsequently, Shea sent Bender that letter, dated January 15, 1974, expressing the Company's willingness to resume negotiations but in- dicating that "the Company had not changed its po- sition on the same contractual issues. . . .[and] I do not believe any useful purpose would be served by such a meeting, even though the Company has not yet made a wage proposal at Hackensack." After re- ceiving Shea's letter, the Union made no further ef- forts to meet with the Company and, instead, filed the unfair labor practice charges presently before the Board. The foregoing amply demonstrates that the instant case is, in essence, nothing more than another epi- sode in the evolving bargaining saga between these two parties. It is evident that, although the battle ground has shifted to Hackensack, the participants are the same and their respective bargaining posi- tions remain substantially as they were in the New York-Newark negotiations. Therefore, in dealing with the instant case it is important that we remain cognizant of what the court of appeals had to say with respect to Respondent's bargaining tactics in the case involving these parties in connection with the New York-Newark negotiations. In granting en- forcement of the Board's Order in the prior case, the court found ample evidence in the record to support the Board's finding that Respondent had engaged in bad-faith bargaining. In fact, the court found it un- necessary to analyze in detail each aspect of the Company's offensive conduct on which the Board re- lied to establish Respondent's overall bad faith. However, the court did consider some of the more salient examples of the Company's insincerity and concluded, Viewed in its entirety the record reveals that the Company pursued a pattern of tactics designed to delay the negotiations as long as possible, to denigrate and undermine the Union, to make it impossible for the Union to reach a collective bargaining agreement without virtually surren- 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dering its right to represent the employees in dis- putes over working conditions, and to make it appear to the employees that they would be worse off with Union representation and a col- lective bargaining agreement than if they had neither [495 F.2d at 481. As the foregoing aptly describes Respondent's con- duct here, despite the absence of unlawful unilateral action, we rely on the opinion of the court of appeals in the prior case in assessing Respondent's conduct here. In its brief, Respondent makes much of the argu- ment that the Company's overall conduct in the Hackensack negotiations, including its pattern of bargaining and its modified proposals, changed radi- cally from the totality of the circumstances which led the Administrative Law Judge, the Board, and the court of appeals to find that Respondent had en- gaged in bad-faith bargaining at their New York- Newark negotiations. We disagree. And, while we do not fully subscribe to the Administrative Law Judge's characterization of the Company's negotiating prac- tices here as nothing more than a "mirror's image" of its practices at the New York-Newark negotiations, we do find that the Company's later proposal did not significantly modify the New York-Newark propos- als which the Board and the court of appeals relied on as evidence of the Company's insincerity in its dealing with the Union. To be sure, the Company did make some modifications in its contract proposals after the Administrative Law Judge's Decision issued in the latest New York-Newark litigation. However, whether the modifications that Respondent did make were minor, as described by the Administrative Law Judge here, or whether they were substantial, as Re- spondent contends, they were too few and, in our opinion, failed to cure the criticisms that the court of appeals made of Respondent's whole package pro- posal. Stripped of their lengthy and confusing redac- tion, the essentials of Respondent's proposals retain, as in the prior case, a calculated design to denigrate the Union before its members, to undermine the Union's efforts to reach a meaningful collective-bar- gaining agreement by requiring it virtually to waive its statutory right to bargain over matters falling within the scope of the employees' working condi- tions, and to create among the employees the appear- ance that they would be better off if no contract were signed. Such is the effect of the Company's health, welfare, and retirement proposal, its vacation pro- posal, its holiday proposal, its management rights proposal, its no-discrimination proposal, and its company car proposal, all of which remained sub- stantially or completely unchanged despite the Ad- ministrative Law Judge's criticisms in the prior case and the court's total enforcement of the Board's Or- der therein. Another example of Respondent's evasive negoti- ating tactics from which bad faith can be discerned is found in its grievance, arbitration, and no-strike pro- posals. In its brief, the Company points out that, sub- sequent to the issuance of the Administrative Law Judge's Decision in the case involving the New York- Newark units, Respondent modified these proposals by eliminating any restrictions on the Union's right to strike over grievances that the Company refused to arbitrate. However, Respondent left unchanged the Company's proposal defining "a grievance," which limits the Union's right to strike to a handful of in- substantial matters of dispute. According to the Company's contract proposal, the term "grievance" means, "Any alleged violation by the Company of the clear and unambiguous terms of the language ex- plicitly set forth in this. . . ." In criticizing this pro- posal, the court of appeals stated, Acceptance by the Union of the Company's proposal would have constituted a waiver of any right to process a grievance or strike arising out of any matter not specifically covered in the Agreement and, at the time it made this propos- al, the Company was insisting on including only a limited number of subjects in the contract. [495 F.2d at 49.] By insisting on the same definition of the word "grievance," Respondent in fact disregarded the crux of the court's criticism, which went to the total effect of that portion of the Company's proposal. The criti- cism of the court remains apposite in the instant case because the net effect of Respondent's "modified" proposals is still to require the Union to surrender its statutory right to represent employees over matters that clearly fall within the scope of their employment conditions and, as in the prior case, the Company still insists on including only a limited number of subjects in the contract. Respondent's cosmetic mod- ifications of a contract proposal that had already come under direct fire by the court of appeals is, therefore, further evidence of an insincere pattern of bargaining practice designed to destroy the Union. Another company proposal that remained sub- stantially unchanged despite the court's criticisms was its vacation proposal. In this respect the court stated, . . . with respect to vacations the Company's sole representative for some time took the ex- traordinary position that vacations were not an UNDERWRITERS ADJUSTING CO. earned right but were provided to enable em- ployees to do a better job for the Company. He then proposed stringent eligibility requirements that disregarded existing practices permitting employees to select their vacations on the basis of seniority. [495 F.2d at 49.] Respondent's insistence on the almost identical vaca- tion proposal fits perfectly with the rest of its poorly concealed scheme to undermine and denigrate the Union by thwarting the Union's every effort to reach a meaningful collective-bargaining agreement. It would serve no useful purpose to repeat and an- alyze, one by one, the Company's contract proposals that have remained unchanged despite the criticisms of the Board and the court in the prior case. To do so would only be duplicative of what has already been said. Respondent's attempts to take refuge in the fact that the Union accepted all of the Company's con- tract proposals except for those mandatory subjects of bargaining over which the parties reached an im- passe are to no avail. We do not understand how the Union's attempt to reach a collective-bargaining agreement, albeit at the expense of accepting highly disadvantageous company proposals, can be credited to Respondent's asserted good-faith bargaining. We are equally at a loss trying to understand how Re- spondent, in good faith, expected the Union to re- sume negotiations after Shea's letter of January 15 refusing to make a wage proposal had, in effect, for- mally foreclosed any hope of the parties reaching an agreement. Indeed, it is clear that the Union was willing to make even more compromises if the Com- pany would make a "decent" wage proposal. Based on the foregoing, we are satisfied that Re- spondent bargained in bad faith with no intention of ever reaching an agreement with the Union, except, perhaps, on terms that rendered the Union impotent to represent the employees, thereby belittling the Union and its efforts in the eyes of those it was trying effectively to represent. We cannot judge this case in a vacuum, as Respon- dent would like us to do. The Respondent's history of bad-faith bargaining with this very Union, its in- sistence on substantially the same proposals which the Administrative Law Judge, the Board, and the court of appeals found to evidence Respondent's lack of good-faith bargaining, and its failure to make any wage proposal in the instant case provide ample grounds for affirming the Administrative Law Judge's conclusions that Respondent has again disre- garded the requirements of Section 8(a)(5) and 8(d) of the Act.' ORDER 391 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 Respondent, Underwriters Adjusting Company, Hackensack, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. r Chairman Miller, who dissented from such a finding in the prior case involving these parties, joins in this finding and conclusion because he con- siders the decision of the court of appeals in the prior matter to be control- ling on each of the issues wherein it is relied on in this opinion DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Administrative Law Judge: The issue in this case is did Respondent refuse to bargain in good faith with the collective-bargaining agent of its employees within the meaning of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act, herein called the Act (29 U.S. C. Sec. 151, et seq ). The parties did meet and discuss con- tract terms but the issue is whether Respondent was acting in good faith for the purpose of arriving at a contract con- taining terms relating to wages, hours, and terms and con- ditions of employment for its employees in Hackensack, New Jersey. For the reasons hereinafter set forth, I find the General Counsel has established by a preponderance of the evi- dence that Respondent was not bargaining in good faith in violation of Section 8(a)(1) and (5) of the Act. Teamsters, Local 1 (American Communications Associ- ation) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, filed charges against the Underwriters Adjusting Company, herein called the Respondent, on Jan- uary 21, 1974. These charges resulted in a Complaint and Notice of Hearing being issued March 7, 1974, by the Re- gional Director of Region 22 of the Board alleging viola- tions of Section 8(a)(1) and (5) of the Act. Respondent denied the essential allegations that it vio- lated the Act. With the General Counsel and Respondent being repre- sented by counsel and the Union by its secretary-treasurer, the case was tried before me in Newark, New Jersey, on April 23, 24, 29, and 30, 1974. The parties were given full opportunity to present evidence and examine and cross- examine witnesses. Counsel for General Counsel and coun- sel for Respondent filed timely briefs on June 4, 1974. Upon the entire record including my observations of the demeanor of the witnesses, and after due consideration of the briefs filed, I make the following: 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS 1. JURISDICTION (a) Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Illinois. (b) At all times material herein, Respondent has main- tained its principal office and place of business at 244 South Wacker Drive, Chicago, Illinois, and various other offices and places of business in the States of the United States, including an office at 33 Hudson Street, Hacken- sack, New Jersey, herein called the Hackensack office, and is now, and at all times material herein has been continu- ously, engaged at said offices and places of business in the business of providing and performing insurance adjusting services and related services. Respondent's Hackensack of- fice is its only facility involved in this proceeding. (c) In the course and conduct of Respondent's business operations during the calendar year 1973, said operations being representative of its operations at all times material herein, Respondent derived revenues in excess of $50,000 for services rendered directly for concerns located outside the State of New Jersey. (d) I find Respondent is, and has been at all times mate- rial herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. (e) I find Local I is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background All claims adjusters, claims examiners, and claims repre- sentatives employed by Respondent at Respondent's Hackensack office, but excluding all office clerical employ- ees, professional employees, guards, supervising adjusters and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. On or about May 24, 1973, a majority of the employees of Respondent, in the unit described above, by a secret ballot election conducted under the supervision of the Re- gional Director for Region 22 of the Board, designated and selected Local I as their exclusive representative for the purposes of collective bargaining with Respondent, and on or about May 31, 1973, said Regional Director certified that Local 1 was the exclusive collective-bargaining repre- sentative of the employees in said unit. At all times since on or about May 31, 1973, Local 1 has been and is now the exclusive representative of the employ- ees in the unit described above for the purposes of collec- tive bargaining and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment. B Prior Bargaining Relationship On March 6, 1968, the Union was certified to represent Respondent's claim adjustors, examiners, and investigators in the New York City office and in the Newark office.' The following day, the Union requested the Respondent to bar- gain collectively with it, but the request was refused. Un- fair labor practice charges were filed by the Union and a complaint thereon was issued on June 16, 1968. The Board issued its Decision, reported at 172 NLRB 406 (1968), find- ing that the Respondent was engaging in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) of the Act. The Board ordered the Respondent to bargain collec- tively with the Union upon request. The Respondent there- after filed a petition to review the Board's Order. On April 15, 1969, the court of appeals handed down its Decision, reported at 409 F.2d 727 (C.A. 2) granting the Board's peti- tion for enforcement and denying the Employer's petition for review. Respondent thereafter filed a petition for certi- orari which was denied on November 10, 1969, 396 U.S. 902. Following the denial of the petition for certiorari, the Union again requested the Respondent to bargain collec- tively with it. Negotiations began on December 5, 1969. There were a total of 27 collective-bargaining sessions. As it appeared to the Union that the Company was not bar- gaining in good faith, the Union on June 9, 1970, again filed charges against the Respondent, alleging that the Re- spondent was not bargaining in good faith. A complaint issued on those charges, and on December 13, 1972, the Administrative Law Judge issued his Decision, finding that the Employer had bargained in bad faith. On July 11, 1973, the Board 2 affirmed the Judge's Decision, finding that the Employer had bargained in bad faith in violation of Sec- tion 8(a)(1) and (5) of the Act. On April 9, 1974, the U.S. Court of Appeals for the Second Circuit granted the Board's petition for enforcement (495 F.2d 44). C. This Case Turning now to the instant case, the Union, as noted above, was certified on May 31, 1973, as the collective- bargaining representative for the Respondent's claims ad- justors, claims examiners, and claims representatives em- ployed at the Respondent's Hackensack, New Jersey, of- fice. Thereafter, the Union requested that the Respondent bargain with it concerning these employees The parties met on July 23, 1973. At this session, the Respondent's chief negotiator was the same person who represented the Respondent at the New York-Newark negotiations. The Union had submitted proposals to the Respondent before the July 23 meeting. At the July 23 meeting, the Respon- dent informed the Union that it was offereing the Union the same proposals, with certain minor concessions,3 it had 'Hereinafter, the negotiations relating to the New York unit and the Newark unit will be referred to as New York-Newark negotiations z 204 NLRB 1013 3 Some of the proposals made in the New York-Newark negotiations were relied on by the Administrative Law Judge in 204 NLRB 1013 as evidence of the Respondent's bad-faith bargaining It is true that after the Adminis- trative Law Judge's Decision in that case the parties met again and the UNDERWRITERS ADJUSTING CO. made to the Union during the New York-Newark negotia- tions. According to the decision of the Administrative Law Judge in 204 NLRB 1013 and the position of the Union in the instant case, the Union consistently proposed certain items it felt it must have to represent the employees. These items were (1) mandatory arbitration; (2) lay-off in inverse seniority; (3) a reasonable wage increase; (4) some modifi- cation of the management rights clause; and (5) time and a half for overtime. It is equally clear from the record in the instant proceeding that Respondent was well aware of this and that throughout the negotiations, both in New York- Newark and during the negotiations in the instant case, it refused to substantially change its position as to these pro- posals. During the July 23 meeting, which lasted several hours, the Respondent made no concessions and insisted upon its last New York-Newark proposals. As no progress was made at the July 23 meeting, the parties agreed to meet again on November 30, 1973. At this session, the Respon- dent again insisted upon its New York-Newark proposals. The Union responded during the November 30 session that it would accept all of the Respondent's proposals on fringe benefits (i.e., vacations, holidays, sick leave, pension) but that the Union wanted mandatory arbitration of griev- ances, layoffs in reverse order of seniority, overtime on a daily and weekly basis, and improvement in the manage- ment rights clause. The Respondent at this meeting, as it had at the prior meeting, stated that it would not give the Union mandatory arbitration. At the November 30 session, the Respondent again refused to make any concessions as to its New York-Newark proposals. At the November 30 session, according to General Counsel's witness Michael Whalen, Ryan (regional vice president of the eastern region of Respondent) asked Bend- er (secretary-treasurer and business agent of the Union) if the Union would have any objection to Respndent's bring- ing Claims Adjuster Charles Morgan into the office in Hackensack. Bender replied that he would talk to Morgan who probably would not like it. A claims adjuster who worked outside the office was entitled to lunch money, ap- parently a fringe benefit. No effort was made by the Union to ascertain the need for this move, why Morgan was se- lected, or how and when the move would be made. Whalen later talked to Morgan on the phone about the contemplat- ed move and Morgan signified he did not like the move. A few weeks later, having heard nothing from the Union, Re- spondent moved Morgan into the office on a part-time ba- sis. At the conclusion of the case for the General Counsel, Respondent's counsel moved to dismiss as to the para- graphs of the complaint which alleged this action to be unilateral and violative of Section 8(a)(1) and (5) of the Act. After first hearing argument from General Counsel against the motion, I granted the motion to dismiss. I have reviewed the evidence again and am still of the opinion that this action by Respondent was not unilateral and was Employer did change its positions as to some of these proposals However, as will be discussed later, the changes were minor and in some cases did not cure the criticisms made by the Administrative Law Judge and the Board 393 not in violation of the Act. Respondent by asking the Union if there was any objection to the proposed move was opening up this issue for bargaining, not for finding per- sonal preference. The Union did not attempt to bargain over this contemplated action but instead merely was con- cerned over Morgan's feelings in the matter. It is all very well to consider the feelings of employees but the impor- tant relationship between employer and agent for employ- ees is to consider and bargain over alternatives to econom- ic action. As this was not done by the Union at the time of the request or within a reasonable period of days, the Re- spondent is permitted to effectuate its planned move with- out violating the laws of collective bargaining.4 By letter dated January 15, 1974, the Respondent in- formed the Union that it was willing to resume negotia- tions but as the "Company has not changed its position on the same contractual issues that separate us at all three places [New York, Newark, and Hackensack], I do not be- lieve that any useful purpose would be served by such a meeting, even though the Company has not yet made a wage proposal at Hackensack." D. Discussion I find merit in the General Counsel's contention that the Respondent's negotiations with the Union concerning the Hackensack employees were nothing more than a mirror's image of the bargaining which the Respondent has en- gaged in with the Union for the New York-Newark em- ployees and which was found by the Board in 204 NLRB 1013 to be bad-faith bargaining. It must then follow that Respondent's bargaining for the Hackensack employees was also bad-faith bargaining. It is noted that, in his decision at 204 NLRB 1013, the Administrative Law Judge found that the Respondent's grievance and arbitration proposal when read in connec- tion with Respondent's no-strike proposal was indicative of Respondent's bad faith. In that case, as in the instant case, the Respondent would not agree to compulsory arbitra- tion, but insisted on voluntary arbitration, conceding only that the Union had a right to suspend the no-strike clause if the Company refused to arbitrate a grievance.5 In addition, the court of appeals in enforcing the Board Order in 204 NLRB 1013 stated: Another Company proposal that could only serve as a roadblock related to grievance, arbitration and no- strike provisions. The Company proposal defined a "grievance" as "an alleged violation by the Company of the clear and unambiguous terms of the language explicitly set forth in [the] Agreement. ..." The Company could determine whether or not it would allow a "grievance" which was properly processed by the Union to go to arbitration and the Union would ° As par 12 of the complaint had been withdrawn by the General Counsel at the onset, only the so-called "surface bargaining" allegation remains to be decided 5 Thus, if the Employer refused to go to arbitration, the Union's only recourse would be to strike It was determined at the trial that a strike is not an effective weapon because in case of a strike Respondent would merely transfer employees from other offices to do the work of the strikers 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be permitted to suspend the no-strike clause only if (I) either the Company or the Union did not wish to sub- mit the matter in dispute to arbitration, (2) the matter in dispute constituted a "grievance," and (3) the Com- pany had in fact violated the Agreement as alleged in the "grievance." These latter conditions-i.e., whether the matter in dispute constituted a "grievance" and whether the Company had in fact violated the Agree- ment-would be determined, in the event of a strike, by an arbitrator who would be picked exclusively by the Company. Acceptance by the Union of the Company's propos- al would have constituted a waiver of any right to process a grievance or strike ansing out of any matter not specifically covered in the Agreement and, at the time it made this proposal, the Company was insisting on including only a limited number of subjects in the contract. . . . We agree with the Administrative Law Judge's conclusion that under this proposal there would rarely be an instance "where the Union could safely consider the no-strike clause suspended." The effect of the clause would have been to place the em- ployees in a worse position than if they had no con- tract at all and to require the Union in effect to waive its right to represent employees with respect to dis- putes over employment conditions. The Board was fully justified in concluding that the proposal was not made in good faith. [495 F.2d at 49.] As the Respondent's arbitration proposal and no-strike proposal in this case is similar to that which the Judge and the Board criticized in 204 NLRB 1013, the same criticism is applicable to this case and I find the proposals were not made in good faith. In addition, the Board has held that a grievance and arbitration proposal similar to the one in the instant case indicates a predetermination not to reach an agreement. Alba-Waldensian, Inc., 167 NLRB 695 (1967); Texas Coca- Cola Bottling Company, 146 NLRB 420 (1964). Additionally, Respondent's proposal on health, welfare, and retirement was almost identical to the proposal put forth by Respondent in the New York-Newark negotia- tions and considered and concluded by the Judge therein that, if accepted by the Union, the Union would waive its statutory right to bargain about health, welfare, and retire- ment plans. (See Alba-Waldensian, Inc., 167 NLRB 695 (1967), Tex-Tan Welhausen Co, 172 NLRB 851 (1968.) This proposal, article XXII, section 2 provides, "No change or modification of any such plan shall be a subject for bargaining or grievance or arbitration between the par- ties to this Agreement." A proposal such as this is an indi- cation of bad-faith bargaining as it denigrates the agent of the employees by making it give up its authority to repre- sent the employees should the proposal be accepted. Further evidence that Respondent never intended to reach an agreement and thereby refused to bargain in good faith, is article XV, the "No Discrimination" clause. There the Company proposed, "The Company and the Union agree not to discriminate against any employee because of race, creed, color or national origin." The Union proposed that they also add to that clause, "age, sex and union activ- ity." The Respondent by its own admission declined to add age, sex, and union activity taking the position that em- ployees were already protected by Federal law as to these three areas. Inasmuch as race, creed, color, or national ori- gin are also protected by Federal law, Respondent's posi- tion as to this issue is arbitrary and illustrates General Counsel's contention that Respondent never intended to enter into a collective-bargaining agreement or ever intend- ed to bargain in good faith. As the Administrative Law Judge noted in his Decision in 204 NLRB 1013, 1023, "The Company's refusal to acknowledge in a collective-bargain- ing agreement what it is required by law to do is to deni- grate the status of the Union as the representative of its employees by demonstrating how ineffective it is as a bar- gaining agent." Moreover, the Board in its Decision at 204 NLRB 1013, in finding that the Respondent had bargained in bad faith noted: In exchange after exchange, all of which are set forth in the Administrative Law Judge's Decision, the Company took, in our judgment, unreasonable, cap- tious positions, determined not to yield a single advan- tage to the Union, even in those instances where it desired to grant a benefit to the employees. For exam- ple, . . . [r]esponding to a request for a standard non- discrimination clause, the Company finally agreed not to discriminate because of race, creed, color, or na- tional origin, but significantly omitted "age, sex .. . or activities on behalf of the Union." Further illustration of Respondent's bad-faith bargain- ing is in its sick leave and holiday proposal (art. X111 and art. XI, respectively). Respondent's only witness, Richard Ryan, admitted that the Respondent's current policy as to holidays is that it is within the discrimination of the man- ager as to whether an employee must work the day before and the day after a holiday in order to be entitled to the holiday. However, the Respondent's proposal as to holi- days requires that the employee work the day before and the day after a holiday in order to be eligible to be paid for that holiday. Ryan also testified that the Respondent's pre- sent policy as to sick leave is to permit employees more than 10 days' sick leave. Respondent's proposal in the in- stant case limits sick leave to 10 days. Therefore, Respondent's proposals as to sick leave and holidays were more restrictive than the Respondent's existing practices, thus leaving the employees in a poorer position than they would be with no contract at all Insisting upon this is not bargaining in good faith. Dothan Eagle, Inc., 174 NLRB 804, 815 (1969). Further evidence of the Company's bad-faith bargaining is its insistence upon its proposed broad management rights clause in article II. It is clear when reading the man- agement rights provision in conjunction with all the other restrictive and limited proposals made by the Respondent that such a management rights provision requires the Union to waive practically all of its rights. East Texas Steel Castings Company, Inc., 154 NLRB 1080 (1965). The Respondent attempted to show that it bargained in UNDERWRITERS ADJUSTING CO. good faith showing that it made certain concessions after the Administrative Law Judge's Decision was issued in the New York-Newark case . The Respondent, at the hearing made much of its concession as to layoff in inverse senior- ity. It conceded that it would consider seniority when de- termining which employee should be laid off for employees with 20 or more years' service. Such a concession in view of the few who had 20 years' service is meaningless and only points up the fact that the Respondent was not bargaining in good faith. Respondent also attempted to show that it made a con- cession to the Union by changing section 2 of its manage- ment rights clause in article II, to permit an employee, who believes that the amount of work being assigned to him is unreasonably excessive, to submit a grievance regarding the amount of work assigned to him. However, in section 1 in article VI of those same proposals, the Respondent spe- cifically excluded from arbitration a grievance wherein the employee claims that the amount of work assigned to an employee is unreasonably excessive. Thus, Respondent permits employees to file a grievance over excessive work loads but excludes such a grievance from arbitration. Such concession is of no value since, in fact, it is no concession. Another attempt by Respondent to show a concession in bargaining had to do with the checkoff proposal of the Union. At first Respondent opposed monthly checkoff of union dues but then conceded that it would checkoff dues but only on a quarterly basis. Thus the employees would have an unbalanced paycheck every 3 months making their personal budgeting more difficult with the obvious blame falling on the Union. This effort to undercut the Union and embarass the employees, when viewed with the evi- dence given by Respondent that it would be easier and cheaper to have dues checkoff each payday in their compu- terized payroll operation, leads to the conclusion that Re- spondent was bargaining in bad faith. In this respect it would make no difference, in law, if the Union would agree to it. It is evident from all of the above that the Respondent never intended to enter into good-faith negotiations with the Union. The Board has held that the duty to bargain collectively as defined in Section 8(d) of the Act requires the parties "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agree- ment ... ... Although this obligation does not "'compel either party to agree to a proposal or require the making of a concession,' Section 8(d) does contemplate a willingness to enter negotiations `with an open mind and purpose to reach an agreement consistent with the respective rights of the parties," Sweeney & Co, Inc, 176 NLRB 208, 211 (1969). The Supreme Court has stated that the mere enter- ing into sterile, marathon discussions of union-manage- ment differences does not satisfy the duty to bargain in good faith, N.L.R.B. v. American National Insurance Co, 343 U.S. 395, 402 (1952). The ultimate issue of whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence. Thus, in the instant case the Respondent's past history of bad-faith bargaining with this very Union, the Respondent's contin- 395 uation of this same pattern of bargaining during the instant Hackensack negotiations (even in the face of a Board Or- der as to the New York-Newark units); the Respondent's insistence on substantially the same proposals that were justifiably criticized by the Administrative Law Judge and the Board in the prior case and which were used as a basis in that case for a finding of bad-faith bargaining; the fail- ure to make a wage proposal; and, finally, the hollow con- cessions made by the Respondent all point to only one conclusion-that the Respondent did, in fact, bargain in bad faith and had no intention of ever reaching an agree- ment with the Union,6 and I so find. 111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occunng in connection with the Respondent's oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. Since May 31, 1973, the Union has been the certified exclusive collective-bargaining representative of employees of Respondent, within the meaning of Section 9(a) of the Act, in a unit composed of all claims adjusters, claims ex- aminers, and claims representatives employed by Respon- dent at Respondent's Hackensack office, but excluding all office clerical employees, professional employees, guards, supervising adjusters and all other supervisors as defined in the Act, which is a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 3. By proposing substantially the same terms relating to grievance, arbitration, and no-strike as the Board and the Court of Appeals had previously decided to be a proposal not made in good faith, Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. 4. By proposing substantially the same terms relating to health, welfare, and retirement as the Board and the Court of Appeals had previously decided to be bad-faith bargain- ing, Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. 5. By taking an arbitrary stand in refusing to add "age, 6 General Counsel contends that I erred in ruling that Respondent did not have to produce notes taken by a witness who testified openly about meet- ings attended by witnesses for the General Counsel who also had testified, under the authority of N L R B v Tex-Tan, Inc, 318 F 2d 472 (C.A 5, 1963). There is no doubt but that the notes would be proper evidence but just because there is evidence available for introduction does not mean it must be produced The presiding judge has discretion in limiting the amount of evidence introduced Witnesses had testified on the points involved in the notes 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sex and union activity" to its "No Discrimination" clause which included "race, creed, color or national origin," Re- spondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. 6. By proposing terms for sick leave and holidays which were more restrictive than existing practices, Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. 7. By proposing a broad management rights clause which when read in conjunction with the other restricted and limited proposals made by Respondent requires the Union to waive practically all its rights to represent the employees, Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. 8. Concessions made by Respondent to the Union in a) considering the use of seniority when determining which employee should be laid off only for employees having 20 or more years seniority; b) permitting an employee to sub- mit a grievance over work assignments while excluding these from arbitration; and c) granting checkoff of union dues each calendar quarter rather than the more efficient checkoff on each payday, are only "hollow" concessions and cannot be relied on as a true concession made in a good-faith effort to reach a collective-bargaining agree- ment. 9. By refusing to bargain in good faith with the Union, Respondent violated Section 8(a)(1) as well as Section 8(a)(5) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. Except to the extent found above, Respondent has not engaged in conduct violative of the Act as alleged in the complaint. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent bargained unlawfully with the Union, I will recommend that it be ordered to cease and desist from bargaining in bad faith and to bar- gain, upon request, in good faith with the Union in the above-described unit and, if an understanding is reached, that it embody such understanding in a signed agreement. As evidence of its bad-faith bargaining is found in some of the contract clauses Respondent has insisted upon to im- passe, Respondent should be ordered to modify the clauses in order to comply with the requirements of good-faith bar- gaining.' Upon the basis of the foregoing findings of fact, conclu- sions of law, and on the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDERS Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Insisting to impasse upon collective-bargaining con- tract clauses which in substance have previously been held by the Board and the Courts to constitute refusals to bar- gain in good faith. (b) Refusing to bargain in good faith with the Union in the following appropriate unit: All claims adjusters, claims examiners and claims rep- resentatives employed by Respondent at Respondent's Hackensack office but excluding all office clerical em- ployees, professional employees, guards, supervising adjusters and all other supervisors as defined in the Act, which is a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Teamsters Local No. I (American Communi- cations Association) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain in good faith with the Union for employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such understanding in a signed agreement. i At stake in collective bargaining is the best interest of the employer and its employees, and this goal should never be lost sight of in bargaining meetings between their respective agents As ethical considerations are in- volved in good faith , an order to bargain in good faith is effective to the extent the bargaining parties have good ethics Should a more mechanical approach be used in remedying bad-faith bargaining by the Board, in order to effectuate the policies of the Act, the Board could use its rulemaking powers and consider argument and proposals from all sides If unethical tactics of agents is the problem, the Board could effectively curtail that aspect by dealing directly with their right to appear before the Board At present, an order to bargain in good faith is sufficient for men of good will 9 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 UNDERWRITERS ADJUSTING CO. (b) Post at its offices in Hackensack, New Jersey, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 9In the event that the Board's 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 The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions 397 To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things WE WILL NOT do anything that interferes with these rights. WE WILL NOT continue to bargain in bad faith, but WE WILL bargain in good faith with Teamsters Local No. I (American Communications Association) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the repre- sentative of our employees in the unit described be- low: All claims adjusters, claims examiners and claims representatives employed by Respondent at Respondent's Hackensack office, but excluding all office clerical employees, professional employees, guards, supervising adjusters and all other supervi- sors as defined in the Act, which is a unit appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. And, if an understanding is reached, embody such un- derstanding in a signed agreement. UNDERWRITERS ADJUSTING COMPANY