Milgo Industrial, Inc.

MILGO INDUSTRIAL, INC. Milgo Industrial, Inc. and Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFLCIO. Case 29-CA-4612 April 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 22, 1976, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,1 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Milgo Industrial, Inc., Brooklyn, New York, 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. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge's recommended "Notice to Employees" is hereby modified to conform to the recommended Order adopted herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice 229 NLRB No. 13 and we intend to carry out the order of the Board and abide by the following: WE WILL NOT fail or refuse to bargain in good faith collectively with Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, as the exclusive collective-bargaining repre- sentative of our employees in the appropriate unit consisting of all production and maintenance employees at our Brooklyn, New York, plant, including leadmen, pattern and model makers, and the driver, but excluding office clerical and professional employees and all supervisors as defined in the Act. WE WILL upon request bargain collectively in good faith with the above-named Union as the exclusive collective-bargaining representative of our employees in the appropriate unit described above. WE WILL NOT fail and refuse to give the Union information necessary for its collective bargaining on behalf of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. MILGO INDUSTRIAL, INC. DECISION STATEMENT OF THE CASE PAUL E. WElL, Administrative Law Judge: On October 1, 1975, Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, hereinafter called the Union, filed with the Regional Director for Region 29 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Milgo Industrial, Inc., hereinafter called Respondent, violated Section 8(aXI), (3), and (5) of the National Labor Relations Act, as amended, by failing and refusing to bargain in good faith with the Union and by other acts and conduct. On December 31, 1975, the said Regional Director, on behalf of the General Counsel, issued a complaint and notice of hearing alleging that Respondent violated Section 8(aXI) and (5) of the Act by negotiating with the Union in bad faith and with no intention to enter into a collective-bargaining agreement and by failing and refusing to furnish certain data requested by the Union to enable it to bargain effectively. By its duly filed answer, and by an amended answer, Respondent admitted the jurisdictional allegations of the complaint except that it denied knowledge and information sufficient to form a belief as to the truth or falsity of the allegations concerning the filing and service of the charge and the representative status of the Union; but denied the commission of any unfair labor practices. Respondent additionally alleged as affirmative defenses that the 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint alleged dates beyond the 6-month statute of limitations in Section 10(b) of the Act and that the conduct of the Union during the course of negotiations evidenced a pattern of bad-faith bargaining which precludes the Union from seeking the Board's protection. On the issues thus joined the matter came on for hearing before me at Brooklyn, New York, on March 29, 30, and 31, 1976. All parties were present and represented by counsel and had an opportunity to call and examine witnesses and to adduce relevant and material evidence. At the close of the hearing, the General Counsel made a brief oral argument. Respondent filed a brief which has been duly considered. On the entire record in this case and in consideration of the brief and oral argument I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a New York corporation engaged, in the Borough of Brooklyn, in the production, manufacture, sale, and distribution of metal construction items, metal sculp- ture, metal decorative and art objects, cut bodies and frames, and related products. In the course and operations of its business Respondent annually sells and distributes products valued in excess of $50,000 which it ships in interstate commerce directly to States of the United States other than the State of New York. Respondent is an employer engaged in 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 UNFAIR LABOR PRACTICES Background On September 21, the Union commenced an organizing campaign among the 15 to 20 employees of Respondent at its shop located in Brooklyn, New York, and on or about October 1, 1971, demanded recognition. Recognition was refused and on October 19, 1971, unfair labor practice charges were filed. On August 29, 1972, an Administrative Law Judge issued a Decision finding that Respondent had engaged in a course of unfair labor practices and ordering Respondent to bargain with the Union. On June 6, 1973, the Board issued its Decision adopting the order of the Administrative Law Judge' and ordered Respondent to bargain with the Union. On June 11, 1974, the United States Court of Appeals for the Second Circuit issued its judgment enforcing the Board's Order and ordering the Respondent to abide by and perform the directions of the Board. On July 1, 1974, the Union by letter called upon the Respondent to meet and bargain with it over the terms and conditions of employment of its employees in the unit found appropriate by the Board in its order, i.e. I 203 NLRB 1196(1973). 2 The entire text is as follows: All production and maintenance employees employed by Respondent at its Brooklyn, New York plant, including leadmen, pattern and model makers, and the driver, but excluding office clerical and professional employees and all supervisors as defined in Section 2(1 1) of the Act. Three weeks later, on July 24, 1974, Respondent's attorney, David Tolmach, responded to the Union's request for bargaining stating that he had been delegated to bargain on behalf of Respondent and requesting that the Union specify a date on which to meet and bargain. Finally, a meeting was arranged by telephone for August 8, 1974, when the parties first met. Respondent was represent- ed by Attorney Tolmach and by Bruce Gitlin, Respon- dent's vice president. The Union was represented by its president, Colavito, who was its sole spokesman through- out the course of negotiating that ensued. All of the meetings were held in Tolmach's office in Manhattan and were attended by Tolmach and Colavito. On some occasions Bruce Gitlin was present. At this first meeting Colavito gave Tolmach a copy of the Union's proposal in the form of a contract similar to the contract that the Union had in force at that time with a large employer association representing about 30 percent of the employers whose employees are represented by the Union. The parties went over the union contract to some small extent asking questions about the cost of the welfare, pension, and other benefits in the union contract and the particular benefits that accrued to the employees for those costs. In his July I letter Colavito had asked for the names, addresses, starting dates, classifications, and rates of pay plus other benefits in effect for the employees. On July 25, Respondent, over the signature of Bruce Gitlin, forwarded a list of 13 employees with their addresses, starting dates, current rates of pay, and a paper entitled "fringe bene- fits." 2 The covering letter also stated that since the Company has no classifications at present it was unable to satisfy the Union's request on this point. At the August 8 meeting Colavito discussed the job operations and classifi- cations of the employees shown on the list provided by Respondent and asked for further information concerning precisely what each of the employees did. After discussing the matter set forth above Tolmach stated that he wanted to study the Union's proposal and that that would take him a couple of weeks. He stated that he would call the Union in a couple of days to set up another meeting. This the meeting broke up after I- 1/2 to 2 hours. No call was received from Tolmach. After 10 days Colavito called him and was told that Tolmach was going on vacation. A meeting was finally set up for September 9 at 2 p.m. On this occasion the parties went over the Union's proposed contract and Respondent objected to each and every provision as they reached it, for various reasons. Under the union contract the fringe benefits, welfare, pension, sick leave, annuity and apprentice training are all Fringe Benefits (A) Pension plan after 3 years. (B) Two weeks vacation after 2 years, 3 weeks for leadmen (C) 10-1/2 paid holidays (D) Blue Cross after 7 years. 26 MILGO INDUSTRIAL, INC. handled through trust funds contributed to by employers whose employees are represented by the Union and controlled by trustees jointly selected by the employers and the union. Respondent flatly stated that it would have nothing to do with any of the trust funds and that its benefits were adequate. Respondent flatly rejected a provision in the unit clause providing that the contract would bind any successors to Respondent, opposed the wording of the no-strike clause, rejected the provisions forbidding subletting unit work and providing for regional standards of pay where erection or field fabrication work was done outside of Respondent's plant by Respondent's employees. The negotiators passed all monetary items. The parties met again on September 20 and October 7, 1974, and no agreements were reached. On September 20 Respondent handed the Union its first set of counterpropo- sals which appear for the most part in items of substance to reflect Respondent's prior or existing status. The parties met again on October 17 and again on November 4, 1974. On the latter day Respondent made its first monetary offer, 10 cents an hour across-the-board which was to include any cost involved in the improvement of fringe benefits.3 On November 4, 1974, Colavito again asked for more information concerning the jobs performed by the employ- ees. He also asked for the cost of the pension plan and for a copy of the Blue Cross plan. He had been informed of the cost of the Blue Cross plan and that it was the Blue Cross- Blue Shield Executive Plan but was not informed what benefits it afforded. With regard to the pension plan he had been given a copy of the pension trust agreement but was given no information as to the cost to the Respondent of the plan. By this time, after six negotiating sessions, the parties had reached partial agreement on some clauses and full agreement on the savings clause, the Union having added a word to its proposal to make it conform to Respondent's desires. There also appeared to be some agreement on the clause referring to bonuses after Colavito assured Tolmach that the clause would not prevent Respondent from giving bonuses unrelated to production. Also in the November 4 meeting Respondent announced that it would give an improved vacation offer of I-week vacation to any employee with a year of service, 2 weeks with 2 years' service, and 3 weeks with 8 years' service. 4 On November 12, 1974, the parties met again. Respon- dent raised its pay offer to 25 cents an hour plus any improvements in the pension and welfare plans that it might give. Respondent also announced that it was willing to afford Blue Cross protection to the employees after 1- year service rather than after 7 years' service as it had been offering in the past. No agreements were reached in this meeting. Most of the meeting appeared to have been taken up with Colavito's protest that the 25-cent offer was less than the rise in the cost-of-living experienced by the 3 The wage rates of the employees as of the commencement of bargaining range from S2.50 to $5.75 an hour and averaged about $4.05 an hour. The offer thus comprises the offer of a raise of approximately 2.5 percent. 4 Respondent's attorney and sole witness Tolmach denied that he had ever offered a third week for 8 years' experience. Whether he or Colavito is correct, at any rate in a subsequent wrtten offer Respondent offered a third employees and in a discussion concerning the insertion in the unit description of the street address of the Respondent upon which Respondent insisted, and which the Union inferred to mean that Respondent could escape its contract by moving its operation to another address. The parties met again on November 22, 1974. The entire meeting was spent discussing holidays, reporting pay, the grievance and arbitration clause, and overtime pay. Agreement was apparently reached at this meeting on the arbitration clause, Respondent having agreed that the arbitrators could be selected by the American Arbitration Association rather than through the Federal Mediation and Conciliation Service which it had preferred. At the close of the November 22 meeting Tolmach stated that he wanted to draft a new proposal embodying all of the agreements reached and whatever new proposals Respondent was prepared to make. He stated that it would take a couple of weeks to prepare this and that he would telephone the Union with regard to setting up a new date. 5 In fact it was not until January 7 that the new draft was forwarded to the Union and then only after numerous attempts by the Union to reach Tolmach by telephone to set up a new meeting. In his January 7 letter Tolmach suggested that Colavito call him, after Colavito had an opportunity to review the contract, to arrange a date for the next negotiating session. Colavito attempted to tele- phone Tolmach without success and apparently finally reached him on February 3 and agreed to meet on February 14. Because no economic offer had been contained in the January 7, 1975, proposed contract Colavito asked Tolmach for an economic offer and in a February 3, 1975, letter Tolmach reoffered the 25-cent-an- hour increase, the Blue Cross-Blue Shield after I year of service and an additional week's paid vacation after 10 years of service all effective on the signing of the new contract. The meeting of February 14 was subsequently called off by Tolmach and the parties in fact did not meet again until March 3, 1975. At the March 3 meeting, during an exploration of the Company's wage offer, Colavito again asked for more information concerning what the jobs of the employees consisted of. He again asked for the cost of the pension plan and for a copy of the Blue Cross plan and for the amounts of bonuses which had been paid the unit employees. He also asked at this time about the Company's sick leave practice and was told that the Company had no practice or that Respondent was not sure what the practice was but would let Colavito know. Either at this meeting or the next meeting the information concerning the bonuses paid in past years was furnished by Respondent as well as listings of new employees that have been hired since the negotiating started. The only agreement reached at the March 3 meeting was when the Union agreed with Respondent's proposal with regard to checkoff after a slight wording change requested by the Respondent. week after 10 years' experience. Inasmuch as only four employees had been with the Respondent 10 years and three of them were leadmen who already received 3 weeks' vacation this offer would have benefited only one employee. 5 Tolmach testified that he said it would take 3 weeks to prepare this redraft. I see no need to resolve the issue of credibility. 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties met again on March 14, 1975. At this time the Union modified its unit proposal but Respondent still rejected it. The parties discussed a provision regarding funeral pay with Respondent's contending that it would pay only 3 days from the date of death to the date of the funeral inclusive and then only if they were workdays while the Union argued for 3 days' pay whether or not they were workdays and whether or not the funeral was conducted on the third day. Colavito requested that any pay increase negotiated be made retroactive to the commencement of negotiations, but Tolmach stated that there would be no retroactivity. The Union suggested under the safety and health clause that Respondent supply half the cost of safety shoes. Respondent refused to do so stating it did not think safety shoes were as safe as other shoes. Respondent's offer of 3 weeks' vacation for 10 years' service was debated, with Respondent rejecting the Union's proposal that vacation pay be prorated when employees were discharged. Respon- dent contended that a discharged employee would get no vacation. The parties met again on March 26, 1975, and spent the afternoon haggling about the plant visitation clause, with Respondent's contending that the union agent must make an appointment before visiting the plant, and the seniority clause. Respondent throughout negotiations to this point had contended that at least 120 days' probation was required in its business. The Union contended that 30 days at the most was necessary to determine whether an employee was fit to remain in Respondent's employ. At this meeting the Union agreed that it would drop its demand for participation by Respondent in the joint vacation fund and proposed 1-week vacation for employees with I year, 2 weeks for employees with 2 years and I day additional vacation for each additional year after 2 years. This was rejected by Respondent. The Union reiterated its demand for the welfare and pension information and for additional information with regard to the job operations and classifications of employees. Employee Turnover At the time of the election there were 17 employees in the unit. By July 24, 1974, when Respondent sent a list of its employees to the Union in response to the Union's request for this information, there were 13 employees in the unit, 8 of whom had been employed prior to the filing of the unfair labor practice charges in the prior case. Three of these were the three leadmen, Salva, Lostinuso, and Zeichner. Of the 10 card signers, identified in the prior proceedings only 4 remained on the payroll, L. Mussi, T. Mussi, A. Zichichi, and M. Hernandez. By September 25, 1974, when a second list of employees was furnished the Union six employees of the July 24 list including M. Hernandez and A. Zichichi, were no longer employed, and seven new employees were shown to have appeared. By March 14, 1975, when a third listing of employees was furnished the Union, only 10 of the September 25 employees remained and 3 more had been hired. By this time only two of the original card signers remained in Respondent's employ. Summation of Background The charge was filed on October 1. Accordingly the 10(b) period reaches back to April 1, 1975. The meeting of March 27 was the last meeting preceding the 10(b) period; it is to the next 6 months that we must look to determine whether the unfair labor practices alleged occurred. The status at the commencement of the 10(b) period was as follows: In the 3-1/2 years since the Union had achieved the right to represent Respondent's employees the unit had re- mained approximately the same but only seven of the original employees remained of whom only two had been union adherents. Of the 8-1/2 months that had elapsed since the circuit court of appeals ordered Respondent to bargain with the Union only 11 meetings had been held, all of them brief afternoon meetings with two exceptions. The negotiations had resulted in almost no agreement on any contractual matter except the savings clause and a bonus clause. The Respondent at that time was offering a wage increase of 25 cents per hour, Blue Cross benefits to employees who had been in its employ over a year of whom there were seven and a third week of vacation to employees with over 10 years' seniority, an improvement to only one employee inasmuch as three of the four 10-year employees were leadmen who already had this fringe benefit from Respondent. The Respondent had not yet provided the cost of its pension plan or a copy of the Blue Cross-Blue Shield plan that was in effect with its employees and the Union was still seeking more information with regard to job operations and classification of the employees working for Respondent. All of the union proposals for fringe benefits including the vacation fund, the welfare fund, the pension fund, the sick leave fund, the apprentice fund, and the annuity fund had been summarily rejected by Respon- dent and the remaining provisions including the unit, union recognition, union security, hours of work, overtime, holidays, no-strike clause, plant visitation clause, seniority, leave of absence, nondiscrimination clause, bulletin board clause, subletting clause, and the field fabrication clause remained in various states of disagreement with the parties taking up most of the little negotiating time they had discussing changes in wording which, in many cases, would have little or no affect on the unit as it then existed. The Negotiations During the 10(b) Period During the 10(b) period the parties met six times. April 18, May 2, May 29, July II, and September 11 and 30, 1975. The September 30 meeting involved no negotiations whatsoever inasmuch as Respondent's attorney stated that he questioned his right to negotiate in view of the fact a decertification petition had been filed.6 The meeting of April 19 consisted largely of a discussion of the union-recognition clause and the union-security clause. Respondent continued to maintain its position that its street address should remain in the unit description and I Case 29-RD-203, filed September 23, 1975. 28 MILGO INDUSTRIAL, INC. that no mention of successors be made in the recognition clause. The Union argued that it sought to protect the employees in the event Respondent went out of business or moved its plant, and Respondent countered with an offer to agree that in the event Respondent went out of business it would negotiate a severance provision. No agreements of any kind were reached on April 18. The next meeting was held on May 2, and dealt first with the seniority clause with Respondent still contending that 120 days was the minimum probation period that it could accept. The Union suggested going as high as 45 days but the Company remained adamant in its 120-day provision. The parties also discussed vacation pay with the Union seeking prorata pay for employees who were discharged and Respondent insisting that no vacation would be paid them. The safety and health clause continued to be discussed. Respondent continued to insist that it would not provide safety shoes and that regular meetings of the safety committee was unnecessary in a small plant and that the safety committee could meet whenever it was necessary, while the Union continued to insist that meetings should be held at least once a month. The Union continued to contend that some provisions be made for paying employ- ees who were taken into the field either for field fabrication or erection of the Employer's products based on the scale of employees doing that kind of work in that geographical location. Respondent however continued to maintain that employees would be paid only shop wages. No agreements of any kind were reached at this meeting. A meeting was arranged for May 9. According to Respondent's witness Colavito called off the May 9 meeting because he had oral surgery that day and subsequently called off the May 20 meeting thereafter arranged for some reason that Tolmach did not recall. According to Colavito Tolmach called off the May 9 meeting because he was too busy and changed it to May 20 on which day Colavito had oral surgery and called off the meeting arranging a new meeting for May 29. At any rate the parties met on May 29 and addressed themselves to a new series of documents sent to the Union on May 15 by Tolmach embodying either agreements or new proposals. In this, the third offer of the Respondent, it finally dropped its insistence on the insertion of its address in the unit description so that agreement was apparently met in this issue. With regard to the plant visitation clause Respon- dent changed its proposal to omit the provision for prior notice from the Union and to add the provision that the union agent would not "unduly" interfere with the work in progress. With these changes the Union agreed to this provision. Respondent, in the May 15 proposal, changed position in various regards on seniority by dropping its requirement, in effect up to that time, that deductions in seniority should be made for layoff, sick leave, and leave of absence, and by substituting therefor only that seniority should be deducted for any time lost by reason of the fault of the employees, such as a leave of absence. In the other direction Respondent changed its prior position that employees report within 7 days when called back from a layoff to reporting within 5 days, although the 7 days provision had conformed to the proposal of the Union. Respondent also changed its provisions with regard to the length of unemployed time that would break seniority, which had been in various steps of seniority, i.e., 3 months, 6 months, I year, with varying breaks of layoff or leave of absence operating to break the employees' seniority, substituting a provision that a layoff or leave of absence exceeding I year would operate to break seniority. The Union position at all times had been based on an 18-month break. Although Respondent reworded its leave of absence provision which originally had been modeled on the Union's it continued to limit funeral pay to work days up to three after the funeral and continued its insistence that seniority should not be a factor in the decision to grant paid time to employees to press for and get licenses required by Respondent in certain kinds of work. Respondent presented a new nondiscrimination clause very similar to the Union's but added a provision that physical examinations could be required as a condition of continued employment at the Respondent's request. With regard to bulletin boards Respondent continued to require that matter posted on the bulletin board by the Union be "official" while the Union continued to contend that it should be allowed to post any matters of interest to the employees from the Union. With regard to the safety committee Respondent continued to insist that the safety committee could not shut down an operation that they agreed was potentially dangerous or injurious to the health or welfare of employees, but offered to provide accelerated arbitration in the event Respondent disagreed with the safety committee's decision. Respondent continued to insist that it would not furnish a water cooler or safety shoes. With regard the clause providing for renegotiation in the event any portion of the contract was found unlawful Respondent offered to adopt the Union's proposal with the addition of the term "solely" as a limitation for the scope of the renegotiation. At the meeting of May 29 the Company changes were discussed. Reporting pay particularly was discussed with both parties adhering to their positions. Colavito suggested trading agreement by the Union on the differences in the seniority clause for agreement by Respondent for the leave- of-absence clause. Tolmach informed him that Respondent would make no trades. The leave-of-absence clause was discussed at some length, with nobody changing their position. They again discussed wage rates and the Union proposed a 12-1/2-percent wage increase plus a cost-of- living provision. This was countered by Tolmach with the response that the Company would have to spend some time thinking it over and the meeting broke up. At this meeting, according to Colavito whom I credit, he again asked for information concerning job operations and classification, for the cost of the pension plan, and for a copy of the Blue Cross-Blue Shield plan with which some of the employees were then covered. At the close of the May 29 meeting a meeting was set up for June 19. According to Colavito he was informed by his office that Respondent called during the morning of June 19 and called off the meeting. According to Tolmach, however, he was prepared to meet and Colavito didn't show up. There is no question that Colavito would not have shown up either way inasmuch as he was at the time 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in negotiations for another contract and had called up his office with the apparent intention of calling off the meeting set for June 19. The parties thereafter by telephone set up their next meeting to be held on July 11. This was a short meeting because Colavito had to leave to attend the funeral of one of the union officers. It lasted long enough however for Colavito to accept the Company's offer with regard to bulletin boards and part of the leave- of-absence offer of the Company. According to Tolmach's testimony they also discussed union security, working hours, and the plant visitation clause without resolving anything. Another meeting was set up by telephone for July 24. Colavito presented himself at Tolmach's office and the receptionist said she had no idea that there was going to be a meeting and that Tolmach was not there. She gave Colavito a telephone number at which he could reach Tolmach and on calling him Tolmach apologized saying that he forgot to cancel the meeting. Tolmach suggested that he would call back the next day and make a date on which they could meet. He did not call the next day whereupon Colavito attempted for several days to reach him by telephone and his calls were unsuccessful and were not returned. Finally on August 12 Colavito had the union secretary send Tolmach a letter stating "three weeks have passed since you called off our scheduled meeting. Despite the fact that we have made a number of phone calls you have failed to respond. Please call to arrange a meeting." On August 18 Tolmach addressed the letter back to the secretary-treasurer stating "due to a heavy case load I will not be able to meet with you and Bill until September 3. Please let me know what time would be most convenient for the meeting on this date." Colavito was unable to meet on the 3d and a meeting was arranged by telephone for September I 11. At this meeting Colavito reiterated his request for information on classifications and job opera- tions and complained about the gap between meetings and the slowness of the negotiations. He then modified the Union's request with regard to wage increase and asked for a 20-percent wage increase retroactive to January 1, 1975, in lieu of all past proposals in terms of retroactivity. Tolmach said Respondent wanted to study the proposal and get back to the Union. As the meeting broke up Colavito stated that he would like a response to the wage proposal and he still wanted the information so that the Union could set up proper classification systems for the Respondent. Tolmach said that he would get information to the Union on the job operations. Colavito also again asked for the pension costs and the benefits of the Blue Cross-Blue Shield plan. The parties agreed to meet again on September 28. After the September 11 meeting the decertification petition was filed on September 23 and on September 25 an unsigned letter was delivered to Colavito with a list of employees' "major job work," containing the names of 14 employees and with various jobs set out after their names. Most of the information specified during the hearing by Colavito, required in order to "slot in" employees into the union classification system, was available from this list, the only information lacking appears to be whether the various employees were expected to or required to work from blueprints. The September 30, 1975, meeting was of course the last meeting. Tolmach refused to negotiate in view of the filing of the decertification petition. Since October I the Union has made no further attempt to bargain with Respondent nor has Respondent made any attempt to communicate with the Union, other than for purposes of the instant hearing. Discussions and Conclusions I believe and find that during the 10(b) period, that is to say between April 1 and October 1, 1975, Respondent made no attempt to bargain in good faith with the Union as the representative of the employees in the appropriate unit. Bargaining in good faith is defined in the Act as the performance of the mutual obligation of the employer and the representative of the employees 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 agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached, if requested by either party. This obligation does not compel either party to agree to a proposal or require the making of a concession. The Board in its decisions relating to surface bargaining has laid down various indicia by which the failure of the employer to bargain in good faith is exposed. These indicia include failing or refusing to meet regularly, or promptly, failing to promptly supply information necessary to and requested by the union directly related to bargaining, shifting positions, retreating from agreements reached and taking an adamant position thus leaving no scope for bargaining, or demanding conditions that no self- respecting union could consider. The General Counsel contends that all of these indicia are demonstrated herein. Any student of Board law could contrive a script by which a party could bargain indefinitely without reaching agreement and without exposing any of the specific indicia heretofore pointed out by the Board in surface bargaining decisions. It has been my experience that an increasing amount of negotiating time between employers and labor organizations is spent with the parties trying to mark each other with the stigma of the Board's "indicia." The danger to the trier of fact is that he becomes so engrossed with an examination of each individual alleged indicium that he fails to note the broad picture. In short he can't see the forest for the trees. Before proceeding with an examination of the indicia, all of which are said by the General Counsel to be here present, let us take the broad view. At this time, 15 months after the Union finally demand- ed bargaining, with the authority of the circuit court to enforce its demand, the parties have reached no significant agreement, have resolved no economic issue between them, and continue to spend their time haggling over nonessen- tial language changes. It is questionable whether now, 3- 1/2 years after the Union represented a majority and demanded bargaining, it represents anyone. In the 15 months of bargaining, 17 bargaining sessions were held and on 2 occasions during the 10(b) period, more than a month 30 MILGO INDUSTRIAL, INC. elapsed between negotiation sessions. Respondent attempts to lay the blame for the slow course of bargaining entirely on the Union and indeed as a defense to the charges herein, alleges that the Union engaged in bad-faith bargaining. Yet Respondent's counsel on the witness stand admitted that he was the sole spokesman for the Respondent and that during the 10(b) period he was not in New York more than 2 or 3 days a week and during 2 weeks he was in his office no working day at all. This is in addition to whatever vacation period he took. Tolmach testified that each of the meetings was held on a date to which the Union agreed and I have no doubt this is true. Colavito testified that frequently throughout the course of bargaining he sought more regular meetings and longer meetings but that he was forced to take whatever dates Tolmach said he would be available. I have no doubt that Respondent was at all times aware of the fact that the Union had little or no strength in the plant. In the last analysis, the ability of a union to negotiate a favorable contract depends on the muscle it brings to the bargaining table, and this muscle is measured by the employee support that the union has in the plant. The only weapon the union has to avoid being talked to death, as the General Counsel put it in his closing argument, is a threat of strike, and it is quite obvious that the Union's implied threat must have been a hollow one. But granted that the Union is weak here, Respondent's duty was, as ordered by the United States Circuit Court of Appeals for the Second Circuit, to bargain collectively in good faith with an intention to reach agreement, and I don't see that it has done so. Without considering the specific indicia on which the General Counsel relies, I find that the record displays that Respondent throughout the course of bargaining made itself unavailable for regular bargaining, by engaging in a course of nit-picking, negotiating word by word, clause by clause, paragraph by paragraph and section by section. Most of the paragraphs in the Union's proposal are by no means exceptional, but Respondent made necessary the expenditure of large amounts of time to thrash out the objections that it raised, yet Respondent made it impossi- ble to spend such amounts of time by appointing as its chief negotiator a lawyer who is so busy that he could not possibly give this client or this negotiation his full attention. It is true that the act says that no concessions need to be offered or no agreements compelled, but the picture presented by the record herein is that concessions were made virtually impossible, an agreement was never ap- proached. At the end of 15 months of bargaining only a small handful of provisions were agreed upon out of the 33 clauses offered by the Union. All of the fringe benefits proposed by the Union were summarily rejected and Respondent's offer with regard to a wage increase was insufficient even to keep the employees abreast of the rise in the cost of living. In short, after all this time the parties had taken one short step toward the foothills with the mountains left to climb. Now with regard to the various indicia heretofore found by the Board to reveal bad-faith bargaining, clearly as the 7 The "Modified Maintenance of Membership proposal" would by its terms have permitted any employee to withdraw from the Union within 30 General Counsel points out, Respondent's wage offer was far below that any self-respecting union could take back to its employees. Respondent's vacation offer was almost exactly that which it had offered before the Union came on the scene. Negotiations on Respondent's welfare offer were stultified by the fact that it had never furnished informa- tion as to what the benefits were that Respondent was offering, and its proposal with regard to the pension fund was stultified by the failure of Respondent to furnish the cost of the pension fund to enable the Union to compare it with the Union's pension fund. With regard to the failure to meet and bargain at regular intervals, six meetings in 6 months can scarcely be said to be regular intervals. I credit Colavito's testimony that he attempted to get more regular and longer bargaining sessions, without success. While it was no doubt true that Colavito was busy himself during these periods of time, his pocket calendar, which Respondent placed in evidence, shows that he was by no means so busy that he could not have spent multiples of the amount of time negotiating that was available to him. Furthermore, credence is given to his testimony by Tolmach's admission that he was out of town 2 or 3 days in every week, and all of 2 weeks. The press of business of an employer has never been found by the Board to be a good excuse for the failure to meet at regular intervals and to bargain in good faith. The Board has compared the negotiation of a collective-bargaining agree- ment with the negotiation of any other type of contract and I can scarcely believe that Respondent has dragged its feet or permitted anyone negotiating on its behalf to drag its feet over so long a period in the negotiation of any business contract. The General Counsel contends that Respondent reneged on agreements previously reached with the Union. I do not find the evidence adequate to sustain his position in this regard. Few enough agreements were reached, and the only one to which any great attention can be drawn concerned Respondent's purported offer of a third week of vacation for employees with 8 years' seniority. This is completely denied by Tolmach. Both Colavito's and Tolmach's testimony revealed a major loss of memory with regard to the entire course of negotiating. But it is clear that the language in which negotiations were carried on was frequently not definitive but rather consisted of passing suggestions back and forth across the bargaining table, few of them having achieved the status of a real offer. I can readily invision that what occurred was something in the nature of Colavito suggesting three for eight and Tolmach saying something to the effect that something might be worked out there. I think the same thing happened during the background period with regard to an alleged agreement on union security. Indeed, Colavito's testimony convinced me that Tolmach said, in essence, that there would be no problem with union security which is a far cry from accepting the Union's union-shop clause. Thus when Tolmach came forth with his "Modified Maintenance of Membership proposal,"7 I see no reneging on an agree- ment except to the extent that Colavito may have been days after the signing of the contract or after the first anniversary of the (Cmoninued) 31 DECISIONS OF NATIONAL LABOR RELATIONS BOARD misled into believing that Tolmach's assurance that something could be worked out amounted to an agreement. I have already dealt with the failure of Respondent to provide information sought by the Union to some extent. Admittedly, Respondent never gave the Union a copy of details concerning the benefits of its welfare plan, nor informed the Union of the cost of the pension plan. Respondent gave the costs of the pension plan prior to the changes required by the change in Federal law. It was the changed costs that Colavito continued to require and request. These two items are essential to meaningful bargaining by the Union. The Union on the other hand, at the Respondent's insistance at the first negotiating session, detailed the plans to which its proposal were tied and furnished copies of them. With regard to the information concerning job operations and classifications, I believe that, with some slight imagination and a diligent consider- ation of the bits and pieces of information that Respondent gave the Union, the employees could have been roughly slotted into the Union's classification scheme, although the slotting would have been rough because the varying wages paid to various employees were by no means consistent with the details of their employment as spelled out by Respondent. The difficulty of course was in the fact that Respondent throughout this period of time had a continual turnover of about half of its working force, so that distinguishing between mechanics and helpers of laborers among newly hired employees would present considerable difficulties. Nevertheless, I find that Respondent presented the Union with all that it had and probably no more could have been ascertained by the Union without an actual plant visit by Colavito and an investigation into the work status of each employee. I find that Respondent violated Section 8(a)(5) and (I) of the Act by failing and refusing to bargain in good faith with the Union. I find that, instead, it engaged in surface bargaining throughout the entire 10(b) period and indeed throughout the entire bargaining period. I find that it attempted to and succeeded in literally talking the Union to death, depending on the passage of time to annul any strength that the Union might have gained and in the expectation that a decertification petition would be filed when sufficient time had elapsed. In order to avoid any possibility of reaching agreement, I find that Respondent raised issues where no real issues existed, delayed bargain- ing and never offered anything in the nature of economic inducements that would have enabled a self-respecting union to swallow the noneconomic provisions such as a 120-day probation period, the complete lack of union security, the unilateral control of working hours, the restrictions on seniority, the limitations on the use of the bulletin board, and the refusal to give a 5-minute washup period at the end of the workday, upon all of which Respondent insisted. While I recognize that no order to bargain can give the Union the strength of employee support that it apparently meets to force a good contract, it is not inconceivable that good-faith bargaining by Respon- contract, thus affording every employee the opportunity to become a free rider as soon as the contract was signed. The clause specifically provided that all employees should be informed of their withdrawal rights. I 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, dent might result 3-1/2 positive result of the future expenditures of time, energy, and money by the Union, Respondent, and the Board. CONCLUSIONS OF LAW 1. Milgo Industrial, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Brooklyn, New York, plant, including leadmen, pattern and model makers, and the driver, but excluding office clerical and professional employees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times relevant hereto the Union has been and is the exclusive collective-bargaining representative of Respondent's employees in the above appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing to bargain in good faith with the Union as the collective-bargaining representative of its employees in the appropriate unit set forth above since April 1, 1975, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the purposes and policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER 8 Respondent Milgo Industrial, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain with Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the collective-bargaining representative of the majority of its employees in the unit consisting of all production and maintenance employees employed by Respondent at its Brooklyn, New York, plant, including leadmen, pattern and model makers and the driver, but excluding office clerical and professional employees and all supervisors as defined in Section 2(11) of the Act. 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. 32 MILGO INDUSTRIAL, INC. (b) Failing and refusing promptly to supply the Union with information necessary to its collective bargaining. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request recognize and bargain collectively with the above-named Union as the exclusive collective-bar- gaining representative of its employees in the appropriate unit described above. 9 In the event the Board's Order is enforced by a Judgment of the 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 (b) Post at its office and place of business copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 29, shall be posted immediately upon receipt thereof and be maintained by Respondent for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 33