The Charles Parker Co., Inc. And Union Manufacturing Co., Inc.

56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Charles Parker Company, Inc. and Union Man- ufacturing Co., Inc. and United Electrical, Radio and Machine Workers of America. Case 39-CA-2685 30 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 14 May 1986 Administrative Law Judge Harold B. Lawrence issued the attached decision. The General Counsel and the Respondents filed ex- ceptions, supporting briefs, and answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,I and conclusions and to adopt the recommended Order as modified. For the reasons set forth below, we conclude that the Respondents violated Section 8(a)(1) and (5) by dealing directly with employees and by en- gaging in other bad-faith conduct that undermined the bargaining process. In July 1973 the United Electrical, Radio and Machine Workers of America (UE) was certified as the bargaining representative of the production and maintenance employees of Respondent Union Man- ufacturing Company, Inc. (Union Manufacturing), located in Meriden, Connecticut. For over 40 years UE has also been the recognized bargaining repre- sentative of the production and maintenance em- ployees of Respondent Charles Parker Company, Inc. (Parker), also located in Meriden. Union Man- ufacturing and Parker are affiliated business enter- prises which formulate and administer a common labor policy. In its capacity as a bargaining representative, UE has entered into bargaining agreements with the Respondents covering the foregoing units. The most recent of these agreements were effective by their terms commencing 11 June 1981. They pro- ' The Respondents have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings The General Counsel has excepted to the judge's failure to include in the recommended Order a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondents under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request vided that UE "in behalf of and in conjunction with" UE Local 230 (Local 230, collectively the Union), is the "sole and exclusive bargaining agent." In August 1983 these agreements were ex- tended for a 1-year period subject to termination thereafter on 5 days' notice. UE field organizer John Lambiase serviced these bargaining agree- ments on behalf of UE. By the time of the contract extensions in August 1983, the Respondents were in a precarious finan- cial condition and, as found by the judge, it was generally known that the Respondents planned to move their vacuum bottle operation to Mexico. On 11 January 1984 the parties reached agreement re- garding the effects on employees caused by the re- location and agreement on a wage reopener provi- sion . Lambiase participated in these negotiations and was a signatory to the agreements. By July 1984 the relocation of the vacuum bottle operation to Mexico was completed. On 13 Sep- tember 1984 the Respondents informed Lambiase that the extension agreements would be terminated as of 19 September 1984. Additional retrenchment of Respondents' operations followed, with further substantial reduction of their employee comple- ment. In November 1984 the parties reached agree- ment on the effects of these latest layoffs on em- ployees. On 21 January 19852 Lambiase requested a re- sumption of negotiations but received no response. In May the last manufacturing employees were laid off, leaving only a small work crew remaining. Thereafter, in early June, following complaints from laid off bottle division employees, Lambiase contacted the Respondents and helped facilitate is- suance of severance payments negotiated previous- ly by UE. The Respondents continued to remit checked-off union dues to UE into June. In or around June, a fire destroyed the facility in Mexico where the Respondents' vacuum bottle op- erations had been relocated . In contemplation of a possible return of the work from Mexico, Plant Manager Carado Annino approached bargaining unit employees Roger Caron and Kenneth Knapp, who were still employed at Meriden (neither Lam- biase nor Local 230 President David Smith was contacted by the Respondents). According to Knapp, Annino informed him that the Respondents wanted to bring the bottle operation back to Con- necticut and stated , "we have some proposals for you." Although Caron testified that he was told by the Respondents to get in touch with Lambiase, the judge expressly discredited Caron's testimony in 2 All dates hereafter are in 1985 unless noted otherwise 285 NLRB No. 6 CHARLES PARKER CO. this regard.3 Nevertheless, apparently on his own initiative, Caron contacted Lambiase by telephone on 20 June and then met with him on Tuesday,. 25 June, appearing with a complete contract proposal from management in hand. Caron informed Lam- biase that the proposal was given to him by Plant Manager Annino. Caron told Lambiase that the Respondents needed a signed agreement by the morning of Friday, 28 June, prior to a board of di- rectors meeting of the Respondents. Caron also told Lambiase that the decision to return the vacuum bottle operation to Connecticut depended on execution of such an agreement or the few re- maining employees would lose their jobs. On 25 June Lambiase contacted Edmund Bruno, UE representative for the New England area. The following day, 26 June, Lambiase and Bruno re- viewed management's contract proposal, as re- ceived from employee Caron, and contacted Local 230 President Smith, who had been laid off in May. Lambiase and Bruno then contacted the Respond- ents' president, Dibble. As described in greater detail by the judge, the parties conducted negotiation sessions and dis- cussed the Respondents' proposals on 26 and 27 June. Dibble and Annino represented the Respond- ents. Lambiase and Bruno represented UE at the 26 June session. Bruno was unable to attend negotia- tions on 27 June. Local 230 President Smith did not attend the sessions on either day. Caron and Knapp attended all the meetings, as noted below. The 27 June meeting commenced at 8 a.m. Coun- terproposals were exchanged and agreements reached on several provisions. During the session, Lambiase informed Dibble that he had other prior committments and would have to excuse himself but would call Dibble to resume negotiations prior to the Friday board of director's meeting. After his departure and the successful cancellation of his other commitments, Lambiase called Dibble at 3 p.m., on 27 June, to arrange resumption of negotia- tions. Dibble, however, informed Lambiase that an agreement had been reached and signed in Lam- biase's absence. Lambiase spoke with Caron and Knapp that day and was told by them that "the employees had signed the agreement." The agree- ment reached contained provisions not discussed previously in Lambiase's presence. On 2 July Lambiase met with Dibble and re- ceived a copy of the purported agreement. Lam- biase declined both Dibble's request to sign the agreement and Dibble's suggestions that UE dis- claim interest in representing the employees. On 3 July Lambiase again rejected Dibble's suggestion 3 Neither Ammno nor the Respondents' president, Derek A. Dibble, testified at the hearing. 57 to sign the agreement and to disclaim interest. In response to Lambiase's invitation of a union coun- teroffer, Dibble stated that would be fine but he was not looking for prolonged negotiations, it had to be "something quick," and that the Respondents needed "broad freedoms," including "the freedom to be unfair," if necessary. Dibble indicated that any offer would have to be based on the previous agreement signed by the employees and remarked to Lambiase that the employees trusted the Re- spondents because "no one in the right mind would sign an agreement like this unless they trusted us." Thereafter, Dibble informed Lambiase that the Re- spondents absolutely could not live with a union- shop arrangement. By letter of 10 July, Lambiase indicated to Dibble that the UE remained willing to negotiate a new agreement but did not want the Respondents to negotiate directly with the employees and did not consider itself bound by the previous agree- ment signed by the employees. The Respondents did not reply to the 10 July letter. There is no evi- dence that the Respondents implemented the agree- ment executed with the employees on 27 June or that they resumed their vacuum bottle, operation in Meriden. Based on the foregoing, we find that the Re- spondents violated Section 8(a)(5) and (1) in the following respects. Initially, we find that the Re- spondents unlawfully bypassed UE, the certified and recognized bargaining representative, when they tendered a written contract proposal directly to their employees before tendering the offer to UE. Thus, as found by the judge, UE received ,the Respondents' written proposal directly from em ployee Caron on 25 June, who, in turn, received the proposal from Plant Manager Annino. In addition, we find that the Respondents unlaw- fully bypassed the Union when, on 27 June, they executed a written agreement directly with em- ployees.4 Notwithstanding the assurances tendered by UE representative Lambiase that UE would resume negotiations prior to the 28 June board of directors' meeting, the Respondents' president, Dibble, executed the agreement with the employ- ees in the absence of Lambiase. Moreover, this 4 For the reasons set forth by the judge, we agree that the Respond- ents could not reasonably believe that employees Caron and Knapp were acting in an official capacity on behalf of either UE or Local 230. We note particularly that there is no credible evidence that either employee informed the Respondents or UE that he occupied officer status in Local 230-which already had an incumbent president in David Smith; and there is no evidence that the purported officer status of Caron and Knapp was undertaken in accordance with established intraunion procedures for the designation of union officers Further, even according to Knapp's tes- timony, Plant Manager Annmo initially approached Knapp and Caron on or before 25 June with an offer to discuss contract proposals before their ostensible designation as union officers 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "agreement" contained provisions not discussed previously with UE.5 Such conduct clearly violat- ed the Act. TLI, Inc., 271 NLRB 798, 803-804 (1984), enfd. mem. sub nom. Teamsters Local 326 (Crown Zellerbach) v. NLRB, 772 F.2d 894 (3d Cir. 1985). Further, we find that the execution of the agree- ment in Lambiase's absence on 27 June effectively foreclosed the possibility of future meaningful bar- gaining, particularly as it occurred just prior to the important 28 June board of directors' meeting, and that this conduct so substantially undermined the ongoing bargaining process as to constitute bad- faith bargaining.6 Obviously, whatever the role of Local 230 or that of the employee participants, the Respondents possessed a statutory obligation to ne- gotiate with UE as the certified and recognized bargaining representative and a duty to execute with, UE any agreement reached. UE contemplat- ed, and made it known to the Respondents, that ne- gotiations could and would resume before 28 June once Lambiase disposed of his previous commit- ments. When Lambiase telephoned Dibble at 3 p.m., on 27 June, negotiations likely could have re- sumed but for Dibble's representation that an agreement already had been reached. This effec- tively foreclosed meaningful bargaining with UE during the most critical period of the negotiations. Indeed, Dibble's subsequent suggestion to Lambiase on 2 and 3 July that he simply sign the agreement as executed or-disclaim interest in representing the employees, serves to emphasize the abrupt changed circumstances surrounding future bargaining engen- dered by the execution of the agreement on 27 June. That Dibble was amenable to another offer from the Union if it was "something quick," along the lines of the agreement containing "broad free- doms" executed with the employees, does not, by any means, establish that bargaining was unimped- ed by the conduct of the Respondents. According- ly, we fmd that the Respondents also violated the Act in the foregoing respect.7 5 We find it unnecessary to adopt the judge's apparent suggestion at sec. B, 1 of his decision that the Respondents necessarily would run afoul of the Act merely by "speaking" to employees Caron and Knapp during negotiations on 27 June. As Lambiase clearly was aware of the presence of these employees during negotiations , a mere exchange of views with Caron and Knapp by the Respondents, in the context of ongoing negotia- tions with the recognized bargaining representative, raises altogether dif- ferent considerations from the execution of an agreement in the absence of Lambiase containing provisions not discussed with Lambiase. B For the reasons set forth by the judge, particularly the Respondents' failure to question or dispute the Union's majority status during their con- tacts with UE in June and July, we find no merit to the Respondents' contention that they possessed a good-faith doubt as to UE's continued majority status and therefore did not violate the Act 7 Because we find that the Respondents failed to bargain in good faith in the respects indicated above, we find it unnecessary to consider wheth- er the Respondents' bargaining, with regard to the substance of their pro- posals, also was undertaken in bad faith Thus, we find it unnecessary to As previously noted, however, there is no evi- dence that the Respondent implemented changes in terms and conditions of employment. We note that during closing arguments at the hearing, the Gen- eral Counsel conceded that he had "no knowl- edge" concerning whether the Respondents imple- mented any new contract provisions. Indeed, at the hearing, the judge dismissed the complaint insofar as it alleged the unlawful implementation of terms and conditions of employment. Accordingly, we shall dismiss that portion of the complaint.8 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, The Charles Parker Company, Inc. and Union Manufacturing Co., Inc., Meriden, Connecti- cut, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Delete paragraphs 1(b), 1(d), and 2(b) of the judge's recommended Order and reletter the subse- quent paragraphs accordingly. 2. Substitute the following for paragraph 2(a). "(a) In the event that the Respondents resume their former operations in Meriden, Connecticut, they will, on request, bargain collectively and in good faith with United Electrical, Radio and Ma- chine Workers of America as the exclusive bargain- ing representative of all employees employed in the aforesaid bargaining units with respect to wages, hours, and other terms and conditions of employ- ment of the employees in the bargaining unit, and reduce to writing any agreement reached as a result of such bargaining." 3. Substitute the attached notice for that of the administrative law judge. consider or adopt the judge's general discussion set forth at sec. B,3 of his decision e As there is no allegation or evidence that the Respondents unlawfully failed to bargain concerning the effects on employees of any termination of operations or subcontracting of work, we shall delete that portion of par 2(a) of the judge's recommended Order Further, although the Respondents apparently have ceased active man- ufacturing operations in Meriden, Connecticut, they nevertheless, retain personnel at the facility to process the return by customers of vacuum bottles. In addition, it is unclear whether the Respondents have, at any other location, resumed or attempted to resume their vacuum bottle oper- ations subsequent to the destruction of their facility in Mexico In these circumstances, we agree with the judge that it is appropriate to order the Respondents to bargain with UE in the event that they resume their former operations in Meriden, Connecticut Strand Theatre, 235 NLRB 1500 (1978), enfd. 595 F 2d 454 (8th Cir. 1979) CHARLES PARKER CO. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to meet and bargain collec- tively with United Electrical Radio and Machine Workers of America, and its Local 230, as the ex- clusive collective bargaining representative of our employees in the following collective-bargaining unit: All production and maintenance employees, in- cluding shipping and receiving employees, and set-up men, employed by the Company at its Meriden, Connecticut facility, but excluding clerical employees, engineering department employees, guards, foremen, subforemen, and supervisors. WE WILL NOT submit contract proposals to, ne- gotiate with, or otherwise deal with any of our em- ployees 'in the above unit directly in order to bypass the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively and in good faith with United Electrical, Radio and Ma- chine Workers of America as the exclusive bargain- ing representative of all employees employed in the aforesaid bargaining units with respect to wages, hours, and other terms and conditions of employ- ment of the employees in the bargaining units, and reduce to writing any agreement reached as a result of such bargaining, in the event that we resume our former operations in Meriden, Con- necticut. THE CHARLES PARKER COMPANY, Ii c. Michael Marcionese, Esq., for the General Counsel. Ronald Lasky, Esq., of Hartford, Connecticut, for the Respondent. John Lambiase, of Hartford, Connecticut, for the Charg- ing Party. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard by me at Hartford, Connecticut, on 59 13, 14, and 15 January 1986. The charge was filed by United Electrical, Radio and Machine Workers of Amer- ica (UE or the International) on 1 July 1985 and the complaint was issued on 13 August 1985. The Respond- ent's answer denies almost all the allegations, including allegations to the effect that at all pertinent times The Charles Parker Company, Inc. and Union Manufacturing Co., Inc. (the Respondent, Parker, and Union Mfg., re- spectively), were Connecticut corporations having a common place of business in Meriden, Connecticut, and constituted a single-integrated business, enterprise and a single employer engaged in commerce within the mean- ing of the Act, and that they met the jurisdictional re- quirements of the Board for purposes of this case. The nub of the case alleged against the Respondent is that after first meeting with the UE, which represented its production, maintenance, and shipping and receiving em- ployees at Meriden, respecting renewal of their expired collective-bargaining agreement, Respondent bypassed UE and dealt directly with the employees, entering into an agreement directly with them and implementing nu- merous changes in wages, hours, and working conditions without affording UE an opportunity to negotiate and bargain as the exclusive representative of the employees, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The Respondent's answer admits that the charge was filed and served on 1 and 2 July 1985; that UE is a labor organization within the meaning of Section 2(5) of the Act; and that the persons named in the complaint such as the president, secretary-treasurer, and plant manager of the Respondent hold the job titles ascribed to them. The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and the Respond- ent. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION' Uncontroverted testimony from John Lambiase, a field organizer for UE, Kenneth Knapp, and David Allen Smith, former employees, and Lenore Lawry, an execu- tive secretary in the employ of the Respondent, and in- formation contained in the annual report of Union Mfg. for 1983 and in a Dunn & Bradstreet report for that year, establish that Union Mfg. imported merchandise from Italy, and Union Mfg. and Parker shipped merchandise to customers all over the United States. Parker routinely received (and is still receiving) returns from customers of I Matters narrated in this decision without evidentiary comment are those facts found by me on the basis of admissions in the answer, data contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony, and, in instances where conflicts in the testimony did not warrant discussion, the testimony that I have credited. 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vacuum bottles that it sold under a lifetime guarantee. From and after July 1984, when Parker transferred the production of vacuum bottles to a plant that it estab- lished in Mexico, there was much transshipment of the bottles between Parker in Meriden and the Mexican fa- cility. Knapp testified to having worked personally on bottles shipped in from Mexico and testified that they were shipped back to Mexico; he learned this by reading the shipping data on the packaging and from statements made to him by Carado Annino, the plant manager. The material received included both customer returns and bottles returned from Mexico for reworking. In a similar vein, David Allen Smith, a 19-year em- ployee who was president of the Local, testified to ship- ments of numerous Parker products across state lines, movement of bottles back and forth between Connecti- cut and Mexico, Union Mfg.'s shipment of meat grinders in interstate commerce, and importation of plastic chop- pers and knife sharpeners from foreign countries. He had no reliable information about the dollar amounts of such transactions. Lambiase testified on the basis of his own familiarity with the operations of the Respondent, with whom he had dealt for 6 years, and information gleaned by him from an inspection of records in 1983. In response to the Union's request, data had been made available regarding Respondent's operations that showed that both Union Mfg. and Parker had nationwide sales. Union Mfg. im- ported products from Italy until at least June 1985. Parker was selling its thermos bottles nationwide, and both the company records and the 1983 Dunn & Brad- street report confirmed this, putting sales at $13 million, 10 percent of which was exported overseas. After the bottle operation was moved to Mexico in July 1984, there were numerous shipments back and forth between Meriden and the Mexican location. Lambiase expressed the opinion, on the basis of these sources of information and background information gleaned from his work in organizing, handling grievance meetings, and negotiating contracts, that Respondent "couldn't possibly have not" sold or shipped more than $50,000 in goods in 1984, the last complete fiscal year prior to the events of this case, or during the 12-month period ending 30 June 1985. He conceded that his opinion was based on "surmise." The General Counsel did not have any hard evidence respecting the dollar volume of interstate or international shipments, but I do not find it unreasonable to suppose that a union representative who has dealt with a particu- lar company over a period of years and has had access to its books, even if on only one occasion, may be able to form an opinion about the nature and volume of the company's business, both at the time he sees the records and for a prior period, proximate to the period covered by the records 'that he has seen. By reason of his repre- sentative status, he would inevitably become familiar with the size of the Company's work force and the fluc- tuations that occur in it. However, on cross-examination, Lambiase revealed a lack of knowledge of details that lessened the authoritativeness of the opinion that he ex- pressed. - Nevertheless, no evidence was introduced to contro- vert Lambiase's testimony, and doubts about the quality of the General Counsel's proof respecting the volume of interstate and international business conducted by Re- spondent must be resolved in favor of the General Coun- sel by reason of Respondent's failure to honor a subpoe- na that the General Counsel served shortly before the hearing. Had Respondent complied with it, evidence would have been available pertinent to the jurisdictional issues raised in Respondent's answer. Because the statu- tory jurisdiction has been established, I have undertaken determination of the case notwithstanding the absence of data that would demonstrate whether or not the case is within the Board's jurisdictional standards. Tropicana Products, 122 NLRB 121 (1958). Respondent contested the validity of the service of the subpoena, copies of which were served by certified mail addressed to Derek A. Dibble, Respondent's president, and Charles J. Karpe, the treasurer, at 290 Pratt Street, Meriden, in late December 1985. By that date the Re- spondent had moved to 140 West Main Street, Plants- ville, Connecticut. I ford that the service of the subpoena was valid, having been made in compliance with perti- nent rules and having afforded actual notice to the Re- spondent. Section 102.111 of the Board's Rules and Regulations authorizes service of subpoenas by certified mail at the principal office or place of business of the person re- quired to be served, and requires that a copy be served on any attorney who has entered a written appearance in the proceeding on behalf of the party. The Federal Rules of Civil Procedure apply to proceedings before the Board insofar as applicable, and they permit service of subpoenas at a party's last known address. This is emi- nently a case in which to apply the Federal Rules, for if the Respondent moved, it did so well after the institution of these proceedings, on the very eve of the trial, and failed to notify the General Counsel., In any event, the evidence does not necessarily require a fording that the Respondent moved, and, whether it did or not, it had actual notice of the subpoena. The building at 290 Pratt Street in Meriden was sold by Respondent to Pratt Asso- ciates. Respondent leased a portion of the premises from the new owners and installed several employees there, including an executive secretary named Lenore Lawry. Respondent, which now calls itself "Union Parker," moved its officers, Dibble and Karpe, to premises occu- pied by a subsidiary of Union Mfg., known as Five Star Company, 140 West Main Street, Plantsville. The reason I question whether Respondent "moved" in the conven- tional sense of the term is that as of December 1985, almost none of the operations continued to be performed. The evidence in the record indicates only that Respond- ent continued servicing vacuum bottles returned by cus- tomers. Dibble and Karpe were located at Plantsville, but the mail was still coming in to Meriden, which is why Lawry has been stationed there since November 1985. Some 75 to 100 pieces of mail are delivered in a mail sack to Lawry at Pratt Street, Meriden, every morning. Lawry testified that certified and registered letters arriv- ing in the mail sack come without the green cards, and bottle returns continue to come in. Respondent's mail is CHARLES PARKER CO. 61 picked up at the post office by a private mail delivery service and brought to Pratt Street; this has been the procedure for about the last 9 years. Lawry sorts out the mail and someone from Plantsville picks it up later in the day. Lawry turns over mail addressed to individuals un- opened. Continuing warranties and other business re- quirements have apparently made it necessary for Re- spondent to maintain its presence at Pratt Street in a very real sense. Lawry's testimony, considered together with the un- disputed fact that a copy of the subpoena was mailed to Respondent's counsel at the time it was served on Re- spondent at Pratt Street, leaves no room for doubt either that the Respondent received the subpoena or that notice of its service and its contents ought to be attributed to the Respondent, I accordingly infer that had the request- ed records been produced, they would have established that the Respondent's business volume satisfies the Board's jurisdictional requirements. I note that the failure of the Respondent to honor the subpoena also left the General Counsel without proof of the legal composition of Union Mfg. and Parker, or time to obtain independent proof by way of certified reports from the appropriate governmental agencies or county clerk's offices. In spite of this, it is plain that they were business entities that entered into contracts and collec- tive-bargaining agreements, made sales, collected ac- counts, leased and sold real estate, and conducted all the usual activities of business enterprises . The lack of a pre- cise definition of their legal composition does not pre- vent determination of their status as businesses in inter- state commerce within the meaning of the Act. Accordingly, I find that at the pertinent times men- tioned in the complaint the Respondent was, and for the purposes of any remedy herein granted is, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union was and is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. General Background Union Mfg. and Parker, its wholly owned subsidiary, occupied a building at 290 Pratt Street, Meriden, Con- necticut. Union Mfg.'s annual reports carried consolidat- ed balance sheets and financial statements for it and its subsidiaries. Union Mfg. marketed in the United States a line of kitchenware products produced in Italy and a meat grinder that it manufactured in its own chopper di- vision. In January 1984 it had 12 employees. Parker man- ufactured washroom equipment and accessories, such as cabinets, metal railings for installation in new construc- tion, and metal vacuum bottles (under contract with Union Mfg., which apparently owned the rights to them). In January 1984 Parker had 130 employees. Union Mfg.'and Parker had the same corporate officers and the same personnel director. Lambiase, in all his dealings with them (from 1979 on), had dealt with the same per- sons for both companies. Parker had a long history of dealings with United Electrical. On 5 July 1973, UE was certified as the exclusive rep- resentative of employees in a unit defined as: ' All production and maintenance employees of the Employer employed at its plant at 290 Pratt Street, Meriden, Connecticut, but excluding office clerical employees, professional employees, guards and su- pervisors as defined in the Act. The last collective-bargaining agreements negotiated beween the Respondent and UE covered the period from 11 June 1981 through 11 June 1983 and were extended to 11 June 1984. The Respondent, in separate contracts exe- cuted by Union Mfg. and Parker, recognized the United Electrical, Radio and Machine Workers of America "in behalf of and in conjunction with Local 230, United Electrical, Radio and Machine Workers of America" as the sole and exclusive bargaining agent for: all Production and Maintenance employees of the Company, including shipping and receiving employ- ees, and set-up men, but excluding clerical employ- ees, engineering department employees, guards, foremen, subforemen, and any other supervisory employees with authority to hire, promote, dis- charge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. By August 1983, when the 1-year extensions were agreed to, both Union Mfg. and Parker were in serious financial difficulty. Union Mfg. reported in its annual report for 1983 that the year had been a difficult one fi- nancially and that the Company was in the process of re- structuring its organization and operations and imple- menting a "redeployment of assets," including an attempt to sell the building it occupied in Meriden. The 1983 annual report indicated that methods of procuring vacuum bottles from outside the United States were being explored. It was anticipated that restructuring would be complete in 1985. In late August 1983 it became generally known that Respondent planned to move the vacuum bottle oper- ation to Mexico. UE sought negotiations on the effects of the impending layoffs. Effects bargaining lasted from September through December 1983, and resulted in an agreement with Parker covering the effects on employ- ees of the bottle division, dated 11 January 1984, and an- other agreement with Union Mfg. dated 20 January 1984 increasing the wages of its employees. Early in 1984, Union Mfg. and Parker began a series of retrenchments: liquidation, on completion of orders, of the grille and rail departments and the chopper depart- ment; consolidation into a single unit of the cabinet, brass, and press departments, together with the service operations; and removal to a new location of all office, engineering, and production control personnel with the washroom products division. By July 1984 the vacuum bottle manufacturing operation had ceased to operate in Meriden and had been shifted to a facility in Mexico. The number of Parker employees in Meriden by that time had been reduced to 60. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The extension agreements that had been entered into in August 1983 provided for termination on 5 days' notice. On 13 September 1984 Union Mfg. served notice on UE, by letter addressed to Lambiase, that "Union Manufacturing Company and The Charles Parker Com- pany will on September 19, 1984 terminate the extension of the collective bargaining agreement which expired on June 11, 1984." UE responded with a letter, dated 17 September 1984, stating that "U.E. Local 230 is ready, able and willing to continue working after September 19, 1984 pending the negotiation of a new contract under the same terms and conditions currently in effect." The Respondent did not answer the invitation to negotiate, but on 17 September 1984 it posted a notice to its em- ployees that "there will be no changes to wages, hours or working conditions at this time." On 15 October 1984 Parker announced its intention to sell the washroom products division. UE and Parker reached an agreement on the effects in November. The layoff of the Washroom Products employees-reduced the total number of employees in the premises to a dozen, of whom one was employed by Union Mfg. and the rest were employed by Parker. The last manufacturing em- ployees were laid off in May 1985. On 21 January 1985 Lambiase prodded the personnel manager with a letter suggesting that they meet and begin negotiations for a new agreement. He received no response. There was no further contact between the Re- spondent and Lambiase until early in June 1985, when Lambiase received complaints from laid-off bottle divi- sion employees that they were not receiving the sever- ance payments that the Union had negotiated for them and that were supposed to begin during the first week of June. Lambiase contacted Respondent and Respondent began issuing the checks on 12 or 13 June. Very shortly thereafter, it became known that the vacuum bottle production facility in Mexico had been destroyed by a fire. Statements made to an employee named Roger Caron by Derek A. Dibble, the president, conveyed the impression that the Respondent was faced with the necessity of deciding, very quickly, whether to liquidate its equipment in Mexico or remove it from the Mexican location. One of the options considered was bringing the vacuum bottle manufacturing operation back to Meriden. With this prospect in mind, negotia- tions were opened for a new collective-bargaining agree- ment, wherein the events occurred that gave rise to the present case. The negotiations, which are described in more detail below, were conducted on Wednesday afternoon, 26 June, and on Thursday morning, 27 June, by Lambiase, acting for UE, and Dibble and Annino, acting for the Respondent. Roger Caron and Kenneth Knapp were present as an employees' negotiating committee. Edmund Bruno, another UE official, also attended the Wednesday session. Because the negotiations had come up on ex- tremely short notice, Lambiase had not had the chance to clear his calendar for Thursday afternoon and Friday. Accordingly, he departed from the negotiations at the conclusion of the session on Thursday morning. Lam- biase testified that he told Dibble he would telephone him at 3 p.m. on Thursday to arrange for further negoti- ations and would try to clear the calendar. He tele- phoned Dibble at the appointed time and advised him that he was clear for the balance of Thursday afternoon, Thursday night and, if necessary, Friday. Dibble advised him that there was no need because the contract had al- ready been completed and signed. Lambiase saw the exe- cuted agreement on 2 July. It was signed by Caron, Knapp, and two other employees. B. Failure and Refusal to Bargain in Good Faith The complaint alleges that Respondent violated Sec- tion 8(a)(5) and (1) of the Act in three respects: by by- passing the Union, submitting its contract proposal di- rectly to the unit employees on the afternoon of Tues- day, 25 June 1985; by implementing changes in working conditions without giving the Union a chance to negoti- ate on the subject; and by its overall acts and conduct. 1. Bypassing the Union: submission of proposal directly to unit employees Lambiase testified that Respondent did not contact him directly to initiate negotiations for a new contract. Instead, on 20 June Roger Caron, an employee who held no union office, telephoned him to advise him that he had heard from the Company that the bottle division might be brought back from Mexico. He met with Caron at a pizzeria near the facility on Tuesday, 25 June, about 4:30 p.m. Caron appeared with a complete contract in hand that he said had been given to him by Carado Annino, the plant manager. Caron told Lambiase that he had learned- from Annino that the Company needed a contract executed in time for a board of directors meet- ing scheduled for 10 a.m. on Friday, and that the deci- sion on whether the bottle manufacturing division would be brought back to Connecticut depended on what kind of a contract could be negotiated by that time. Caron also told Lambiase that if a contract was not executed by Friday morning, they would be losing their jobs. Lambiase testified that on 25 June he contacted Edmund Bruno, the United Electrical Workers repre- sentative for New England. Bruno joined Lambiase the following day, Wednesday. They conferred at noontime, reviewing the proposed contract, contacted Smith, who had been laid off in May 1985 and was working the second shift with another employer, and contacted Dibble. At 3 p.m. they sat down with Dibble in the com- pany conference room. Smith did not attend. Lambiase and Bruno negotiated for the Union, with Caron and Knapp present, while Dibble and Annino represented the Respondent. Bruno's testimony corroborated Lambiase's testimony that they had the proposed contract in their possession on Wednesday morning and reviewed it before meeting with Dibble and Annino. Some of Caron's testimony would make it appear that, in approaching him, Respondent was not bypassing the Union, but was simply using him as an intermediary to contact the Union. At one point, he testified, "Well, we had to get-the company wanted us to get a hold of John Lambiase." At another point, he stated, "[T]hey asked us to get a hold of Mr. Lambiase and see what we could set up." His testimony presents a confused picture. CHARLES PARKER CO. For example, he appears to testify that at his first meet- ing with Lambiase he did not have a proposed contract from the Respondent in his possession, and he also seems to indicate that at the first meeting with the company representatives, at which Lambiase was present, no con- tract was available: Q. Did you tell Mr. Lambiase what you, the local people, wanted in that contract with the com- pany? A. Well, when he first met with us, we didn't have no contract at all. Q. Right. A. I mean no contract in our hand. The first time we net, they told the company they had to come back with a contract and then we would talk. Q. And so then you met with the company? A. We met with the company after that, yes. Because he goes on to testify that there were three meet- ings with the Company, at two of which Lambiase was present, the import of his testimony would appear to be that the meetings with the Company took place after the Company was informed that a contract would be needed as a basis for discussion. Caron presents two versions of the inception of the ne- gotiations. In one version, the impetus came from the Respondent, after which the remaining employees on active payroll came to him and voted him in as president of the local, because there were no officers left, so that he could represent them in negotiations to bring the bottle manufacturing division back. The Company wanted him to get hold of Lambiase, so as soon as he was elected he called Lambiase and told him the Compa- ny wanted a meeting. Lambiase said he would come down and meet with them. He then testified that they met, without a contract having been prepared, and the Company was told to come back with a contract, but he was vague about who, where, or when they met. In the other version that Caron tells, the employees, on hearing that the Mexican plant had burned down, discussed it among themselves and decided to ask "the company"- in the persons of Dibble and Annino, who just happened to be, standing around, available and together-what they could do to bring the bottle manufacturing division back. "They"-Dibble and Annino-responded that it was up to .them and they "asked us" to contact Lambiase and "see what we could set up." Further differences in the story between Caron and Lambiase are that Caron disclaims having told Lambiase anything about losing jobs if they did not get the con- tract; he testified that he told Lambiase only that the people wanted the contract. Apparently they wanted it sight unseen, since at this point there was no contract, according to him; he did not explain why, if there was no danger of losing their jobs, they were so hot for the unseen contract. Another point of difference between Caron and Lambiase is the place of their meeting. Caron says Lambiase met him and the other employees on the company premises for their initial discussion, which seems unusual. I note that Caron, an employee with Respondent for 22 years, is now a salaried employee of Pratt Associates, 63 290 'Pratt Street, Meriden. Pratt Associates is the new owner of Respondent's building. There is no evidence by which to assess the significance of this circumstance, but I am of the impression that Caron was favorably dis- posed toward Respondent and hostile to Lambiase, with whom he had several disagreements. He was not con- cerned, as Lambiase was, with the interests of the laid- off workers. He testified that he was primarily interested in keeping the few remaining jobs that were left in Meri- den, and that he believed that cabinet department em- ployees, who had received no severance pay or contin- ued insurance coverage when they were laid off, as con- trasted with others, should have first right to recall to jobs in the bottle department if it was brought back, sub- ject to the Company's discretion to determine whether they were capable of doing the work (a qualification that parrots the words of Respondent's proposed contract). The only inference that I can reasonably draw from Caron's testimony is that Respondent tried to negotiate directly with him and bypass UE. Caron's assertion that he was told to get in touch with Lambiase is not credi- ble. Respondent's officers well knew that if they wanted to negotiate, they should contact Lambiase. They knew where to find him, having dealt with him for years. They had his address on the letter he sent them on 21 January 1985 suggesting that they begin negotiating a new contract. They were still remitting checkoff dues to UE-they continued to do so into the month of June C 1985. The other major actor in the direct negotiations be- tween Respondent and the employees was Kenneth Knapp, whose testimony at some points contradicted the testimony of Caron. He testified that he told the Compa- ny that Caron and he were officials of the local and ne- gotiated with them on that basis, but his testimony, if it were credited, makes it abundantly clear that even in his own mind his tenure was fleeting and temporary. He tes- tified that he and Caron were elected as "acting" offi- cers, he being, elected as "acting vice president," and that the two acting officers were elected "for that period of time" to act as a bargaining committee with the Compa- ny. The manifest illegality of this "election" for a limited purpose is obvious. Knapp's confusion respecting his role is apparent from his testimony that: All they said was we want to bring the bottle back to Connecticut here and we have some proposals for you. And then we went to the union and we de- cided to get up a committee. He testified that Annino approached him on the floor of the factory, but offered two contradictory recollections about how the Company's proposals were presented. One was that they were first presented at the meeting with Lambiase, which contradicts everybody else's testi- mony. The other was that he and Caron were elected as "acting" officers because Annino had presented them with a contract proposition and there were no officers of Local 230 still working in the plant and available to handle it. When he was testifying on the question of whether anyone had ever advised Lambiase of his and Caron's election, he conceded that he had not, and as- 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD serted that Caron had stated that he would advise Lam- biase of it when he took the contract proposal to him. This supports Lambiase's testimony that he had 'the pro- posal in time to review it with Bruno. I also credit Lam- biase's testimony that Caron never told him of the elec- tion. Lambiase testified that he did not hear of Caron's and Knapp's claim to election as officers of the Local until he heard their testimony at the hearing. Knapp testified that his election took place on compa- ny time at the company premises . He was vague con- cerning the nature of his duties as "acting vice president" and testified that he assumed that his duties were to assist the president to negotiate a good contract . He conceded that none of the formalities of election were complied with and displayed a complete ignorance of the structure of the union organization or the identity of the officers of the district and the International . He conceded that he did not say much in the negotiating sessions, and, while claiming to have been present in the capacity of acting vice president, his testimony was evasive regarding whether he had advised Lambiase that he held such office; I conclude from his testimony that he did not advise Lambiase that he claimed to hold such an office. Neither Caron nor Knapp had any legal claim to office in the Local, a point explored further in the next section. Their claim was so tenuous and the evidence of their failure to assert it so overwhelming that no conduct of Dibble or Annino can be justified on the basis that they thought they were dealing with officers of Local 230. Caron and Knapp were vague about the circumstances under which the agreement was signed on 27 June in Lambiase's absence. Knapp could not remember whether Lambiase had been present at the negotiating session that morning. He conceded that Lambiase may have excused himself to meet other commitments but, "everything hap- pened so fast that I don't recall if he was there or not, you know, at that last meeting." He implied that at a fur- ther meeting after Lambiase left, there was more give and take; but, like Caron, he could not say what was given and what was taken . Caron conceded that he did not understand all the terms of the contract he had signed and was even unclear as to the basis of Lam- biase's objections to it. He had no recollection of the dis- cussion supposedly held at the final meeting pertaining to the Company's very important proposal setting up the categories of employees . Knapp testified that they felt that the Company had, after considering the UE counter- proposals, improved its own proposal , and that the con- tract ,could not be substantially improved without "going out for months and months . So, the membership decided to sign it." He conceded that the improvement in the company proposal was minor ' compared to other objec- tionable items on which Respondent had remained insist- ent, and that the contract presented to them for signature was basically the same contract that they had seen the day before. It would have been interesting , to hear Dibble's expla- nation of the manner in which he had initiated- the nego- tiations and obtained the employees' signatures to the contract. However, Respondent did not elect to produce him and offered no explanation for the failure to do so. Respondent's counsel, during arguments on the question of the validity of the subpoena directed to Dibble, hinted that he might be out of touch with his client-so out of touch that it could not be assumed, even, that counsel was being paid for his services in representing Respond- ent in these proceedings . Respondent's counsel did not, however, go so far as to assert that his'appearance was pro bono work for the needy and the unavailable. Ac- cordingly, I infer that had Dibble appeared and testified truthfully, his testimony would not have been favorable to Respondent's case. Colorflo Decorator Products, 228 NLRB 408, 410 (1977), enfd. mem. 582 F.2d 1289 (9th Cir. 1978). See also Bechtel Corp., 141 NLRB 844, 845, 852 (1963); Davis Walker Steel Corp., 252 NLRB 311 (1980); Teamsters Local 959 (Northland Maintenance), 248 NLRB 693, 698 (1980); Martin Luther King, Sr., Nursing Center, 231 NLRB 15 (1977). Even if Dibble had asked Caron to contact Lambiase, the fact that he had done so would not excuse the pres- sure that he exerted directly on the employees to secure their acceptance of management's contract proposals. His conduct was identical with that of the employer found guilty of violation of Section 8(a)(5) of the Act in Riney Printing Co., 262 NLRB 157 ( 1982). Because the evidence is so overwhelming that Caron and Knapp possessed neither actual nor apparent author- ity to negotiate and execute an agreement with Respond- ent, I conclude that Dibble could not and did not enter- tain any reasonable belief that they did possess such au- thority. His conduct, in dealing with them, was precisely the type of conduct proscribed by the United States Su- preme Court in Medo Photo Supply Corp. Y. NLRB, 321 U.S. 678 (1944). Contemplating a factual situation in that case not at all unlike the one in this case , the Court com- mented: Bargaining carried on by the employer directly with the employees, whether a minority or majori- ty, who have not revoked their designation of a bar- gaining agent, would be subversive of the mode of collective bargaining which the statute has ordained .. . orderly collective bargaining requires that the employer be not permitted to go behind the desig- nated representatives ... . See also Spriggs Distributing, 219 NLRB 1046, 1049 (1975), another case with facts similar to those of the present case. Quite obviously, by sitting with them in two negotiat- ing sessions, Lambiase did not somehow legitimate Caron's and Knapp's position; he did not then know of the claim to official position that they would subsequent- ly assert in these proceedings. The reverse is equally true: the fact that Knapp and Caron were on a negotiat- ing committee that met with management when Lam- biase did, did not make them by virtue of that circum- stance the Union's agents for the conduct of negotiations in his absence. Concededly, while Lambiase was present they remained silent, did not speak on behalf of the Union, and were not authorized to do so They were therefore not, in the absence of Lambiase , agents of the Union. Taft Broadcasting Co., 264 NLRB 185, 186 (1982). Consequently, even though they were on the committee, CHARLES PARKER CO. Dibble, by speaking directly to them and bypassing the designed UE representative, violated the Act. TLI, Inc., 271 NLRB 798 (1984). 2. Implementing changes in wages, hours, and working conditions The Respondent contends that after 27 June 1985, it was no longer required to adhere to the terms and condi- tions of the expired collective-bargaining agreement be- cause it had been superseded by the new agreement. Ar- guments for the validity of the new agreement are two- fold and mutually contradictory; on one hand, the agree- ment was negotiated by and executed by authorized rep- resentatives of the UE or by persons with apparent au- thority to act, and, on the other hand, the UE no longer represented a majority of the employees in the bargain- ing unit and, therefore, the Respondent was free to nego- tiate directly with its employees. The evidence wholly fails to support either of these as- sertions and, if anything, establishes instead that the UE, to the knowledge of all persons involved, continued to be the lawful representative of the employees in the unit. Accordingly, the purported agreement, dated 27 June 19$5, was entered into by Respondent in flagrant viola- tion of the Act and cannot justify Respondent's disregard of the terms and conditions of the expired collective-bar- gaining agreement. The testimony of ,Caron and Knapp that they were elected by the employees in the shop because the local had no officers and somebody was needed to negotiate with the Respondent when it appeared that the vacuum bottle work might be brought back to Meriden ignores the fact that Lambiase was contacted by them for the very purpose of doing the negotiating. The sham nature of the contention that Caron became the president of Local 230 and Kenneth Knapp became its vice president is apparent from the fact that their sale official action consisted of signing the agreement and from the fact that Knapp did not even accord himself the title, he asserted only that he was elected as "acting vice president," a po- sition not provided for in the constitution and bylaws of the local. I do not credit Caron's testimony that he asked, that the books and records of the local be turned over to him. I credit Lambiase's testimony that Caron and Knapp never said anything to him about having been elected to office in the local and that the subject was never mentioned in any of the negotiating sessions. It is plain that Caron never insisted on receiving the records or the Local's checkbook and bank statements. He never filed statements required by law to be filed by union offi- cials, while David Allen Smith, the duly elected incum- bent, was continuing to file them. There was no installa- tion of officers by any International representative as re- quired by the constitution and bylaws, nor was any re- quested, though it is clearly provided that the terms of retiring officers do not expire until such installation, not- withstanding the provision for 2-year terms. They make no pretense of having complied with any of the requirements of the constitution and bylaws of Local 230 for the nomination and election of officers, which are specific and explicit. The electoral procedures set forth are not empty phrases, but reflect a serious, 65 well-defined intention on the part of the members to avail themselves of the right to act collectively, which is guaranteed to them in the Act. The preamble of the con- stitution of Local 230 recites the necessity of the employ- ees' uniting to protect themselves collectively and their pledge "to labor unitedly" to accomplish their purposes, and articles II and III provide that Local 230 shall be an affiliate of the United Electrical, Radio & Machine Workers of America, International Union and of its Dis- trict Council No. 2. If Caron and Knapp were to be per- mitted to execute the agreement with Respondent in pur- suance solely of the interests of the few remaining active employees, to the exclusion of the interests of other members of the UE as a whole, the objectives of united action would clearly be frustrated. There cannot be anar- chy in the government of labor organizations. Lambiase made precisely this point in conversations that he had with Dibble in July 1985 and in the course of his testi- mony, when he observed that the Union was charged with the duty of protecting the interests of all of its members, which required the preservation of the recall rights of laid-off employees that are protected in the se- niority provisions of the contract that had expired. Those provisions were still effective in the negotiation period, but,were eliminated in the Respondent's proposed con- tract. Lambiase testified that during the negotiations, Dibble never, discussed wages, or who would be re- called, nor did he give any assurance that recalled em- ployees would not suffer a cut in wages. The matter was not academic; on the day Lambiase first spoke to the unit, there were only three employees present in the plant and two others working but not present that day, while there were 100 employees on layoff status, of whom 30 or 35 had worked in the bottle division. The invalidity of the purported election of Caron and Knapp is further made obvious by the fact that at the time of the negotiations in June 1985, David Allen Smith was still the duly elected president of Local 230 and Robert Winnie was its financial secretary. Their terms as officers had not yet expired. (The chief shop steward, Frank Silva, was already out of office at the time of the June negotiations, but no claim was made that anyone had been elected to fill that position.) There cannot have been, legally, two sets of officers in the local. Smith and Winnie had complied with all the requirements of the constitution and bylaws and were still serving their terms of office. Smith had left Respondent's employment only weeks before, but when called by Lambiase stated that if there was something that he needed to do in connection with the negotiations, he would attend. Even had Caron and Knapp somehow become the legal president and "acting vice president" of Local 230, they would still have lacked authority to execute an agreement with the Respondent. The constitution and bylaws of Local 230 do not authorize the lodge officers to negotiate and execute collective-bargaining agree- ments without the participation of a UE representative. There is no evidence in the record pertaining to UE bylaw provisions concerning the negotiation of collec- tive-bargaining agreements or the authority conferred on local officials. However, there was an acknowledged 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD past practice in negotiations, whereby UE representa- tives negotiated and executed the agreements. Lambiase testified that negotiations for Local 230 were conducted by its president, the chief steward, and staff personnel from the International and that after an agreement had been reached and had been ratified by the membership, it was signed by the employee committee and the staff member from the International . Moreover, the constitu- tion and bylaws of Local 230 tell us what we need to know by what is omitted from them. The duties of offi- cers are spelled out in great detail, as are the duties of its executive board, shop stewards, and standing commit- tees, but no mention is made of negotiation of, or entry into, collective-bargaining agreements with employers. In the enumeration of standing committees , none are men- tioned that appear to have contract negotiating functions. There is a provision that any other committee deemed necessary "for the facilitation of the business of the Union" shall be appointed by the executive board from among its own members , subject to the approval of the general membership . The committee that signed the pur- ported agreement of 27 June certainly did not have those credentials. In addition to their absolute lack of legal capacity to function as representatives of the UE, Caron and Knapp appear also to have executed the purported agreement in disobedience of instructions from Lambiase . According to Caron's own testimony, when Lambiase excused him- self at the conclusion of the morning negotiating session on Thursday, 27 June, he told Caron and Knapp "not to go for that contract." He directed them to negotiate fur- ther. (This, of course, is Caron's testimony. Lambiase ex- pected to do the remaining negotiating himself.) Lam- biase subsequently told Caron that the contract was in- valid and asked him to retract his signature , and Caron again disobeyed, refusing to do so on the ground that the active employees wanted the agreement and did not feel that Lambiase was representing their interests properly, being too concerned with the effect of the new agree- ment's provisions on the recall rights of laid-off workers. Caron wanted Lambiase to sign the agreement on behalf of the UE. Any contention that there was apparent authority for Caron and Knapp to act must also be rejected . Nothing was done or said in the presence of any of Respondent's personnel that can reasonably be interpreted as convey- ing to them an impression that Caron and Knapp were authorized to complete the negotiations and execute an agreement in Lambiase's absence. Actually, in the hearing itself, the argument for the ex- istence of apparent authority was never actually articu- lated by Respondent . Respondent's counsel argued only that an employer is not obligated to go behind appear- ances to verify the authority of persons to negotiate for a union. It is not necessary for the purposes of this deci- sion to decide whether that broadly stated proposition correctly states the law. In this case, it was neither stated nor proved that any such "appearances" were created and misled Respondent's personnel. There is no proof of any representation to Respondent respecting the extent of the authority claimed to have been vested in Caron and Knapp . Yet that precise question had to have been in the forefront of Dibble's considerations in the few hours between Lambiase's departure and 3 p.m ., when Lam- biase telephoned him as he had promised. The evidence all points to the absence of authority in anyone to negotiate except Lambiase . The long history of dealings between Parker and the Union was known to Dibble. The printed agreement of 11 June 1981 recites at the very beginning that it is entered into between Parker "and the United Electrical, Radio and Machine Worker of America, in behalf of and in conjunction with Local 230, United Electrical, Radio and Machine Workers of America, hereinafter called the Union," and it was signed not only by the officers of the local but by one signatory designated as the "International Representa- tive." The essential role of the International in the con- tract negotiation process and its presence as a contractual party were recognized. On several occasions, Dibble himself asked Lambiase to execute the purported agreement of 27 June. He sug- gested it when Lambiase telephoned him on the after- noon of 27 June to arrange a further meeting , and he re- quested it in conferences with Lambiase on 2 and 3 July at his office. Although the employees who executed the agreement did so under a rubric, "For the Union," no title is ap- pended to the name of any employee who signed the purported agreement, though the Respondent's officers, Dibble and Karpe, appended their corporate titles- Had Caron and Knapp asserted any claim to office in the local, the occasion of the execution of the agreement would certainly have been the time to let the world know about it. Their failure to do so discredits their claim that they had authority to act on the Union's behalf and is a further basis for fording that no , apparent authority was paraded in front of Dibble. An interesting point about the document executed on 27 June is that four employees signed it "For the Union." Respondent made no attempt to explain the source of the authority of the two employees, other than Caron and Knapp, who signed it. They had not sat in on either of the negotiating sessions attended by Lambiase, and there is no evidence respecting their participation in the negotiating session, if any, that was held in his ab- sence. See Taft Broadcasting Co., above. Dibble obviously was cognizant of the sharp diver- gence of viewpoint between Caron and Knapp, on one hand, and Lambiase on the other . The former spoke ex- clusively for the few remaining employees in the shop, while Lambiase spoke for the entire bargaining unit, inside and outside of the shop. Quite aside from their lack of authority to represent the unit and their disobedi- ence of Lambiase's directions, the situation of Caron and Knapp placed them in a serious conflict of interest. Their positions were inimical to the interests of the laid-off em- ployees. Their obvious conflict of interest precluded any appearance of apparent authority to speak for the whole bargaining unit in the absence of the UE representative. The Respondent concedes its knowledge of this split by another argument that it advances in support of the validity of the 27 June agreement, to the effect that the employees had repudiated the Union and that the Union CHARLES PARKER CO. no longer represented a majority of the employees in the bargaining unit. Respondent cannot have it both ways: employees who have repudiated a union cannot have either actual or apparent authority to speak on behalf of the Union. Nevertheless, the Respondent contends that the UE had ceased to represent 'a majority of the em- ployees in the bargaining unit in the period after 'Re- spondent served its notice of termination of the collec- tive-bargaining agreement extension. The UE enjoys a rebuttable presumption of continu- ance of its majority representative status, which can be overcome only by proof that a majority of employees no longer wished to have it act as their collective-bargain- ing agent or by proof,that Respondent doubted the ma- jority status of the UE in good faith based on objective considerations. The burden of rebutting the presumption rests on Respondent. Stratford Visiting Nurses Assn., 264 NLRB 1026 (1982). And that burden is a heavy one. Pennco, Inc., 250 NLRB 716, 717 (1980). However, Respondent places its reliance on the fact that a decertification petition was circulated among the employees. That circumstance, by itself, is insufficient to provide a reasonable ground for an employer to doubt the majority status of a union; proof is still needed that the petition is supported by a majority of the employees. Dresser Industries, 264 NLRB 1088 (1982). In this case, the evidence indicates that it did not have such support. The petition in question was circulated on 5 February 1985 by, of all people, David Allen Smith, the incumbent president of the local. There were then 12 or 13 persons in the bargaining unit. Respondent 's counsel offered a copy of the petition into evidence with the following ex- planation: As this witness's testimony indicates, that document and his actions concerning that document are evi- dence that the union on that date and thereafter no [longer] enjoyed majority status, and thus this pros- ecution is without merit. That is not quite correct. The petition indicated that on 5 February 1985 a number of employees, contended that the Union no longer represented a majority, and enough of them signed the petition to enable it to be filed with the Board. The issue of whether a majority no longer supported the Union was the issue to be deter- mined. Obviously the mere filing did not mean that the Union's representation was already ended. Subsequent events make it clear that if the Union had lost its majori- ty, it quickly recovered it, for the petition was with- drawn. The reason for the withdrawal is significant. Kenneth Knapp himself testified that the employees de- cided to drop the matter on the advice of the Union. The advice to which he referred was a point that Lambiase had made to Smith when Smith advised him, in February or March, that employees were considering the filing of a petition. Lambiase explained to Smith that it was im- portant for the employees to refrain from any action that might upset the arrangements for severance pay that he had negotiated (totaling $35,000 and due to begin in June). 67 Smith ascribed the employees' action in signing the pe- tition to the fact that they were upset about conditions in general and its withdrawal to the fact that they began to worry about their insurance and other rights. They wanted to be sure the Union would represent them. The petition was withdrawn voluntarily on unanimous con- sent of the signatories. I do not find, therefore, that the circumstances sur- rounding the filing of the decertification petition, such as have been proved, establish that the Union lost favor among a majority of the unit to the extent that it no longer represented them. The Respondent, however, adduced a great deal of testimony to the effect that the employees felt that the Union was not representing their interests. Knapp and Caron were called as witnesses to testify to the sharp di- vision between the few employees still working and Lambiase, who was trying to protect the people "on the outside." Knapp testified that the employees still work- ing came to feel that Lambiase's concerns were different from theirs. They were concerned with maintaining their pay rate, keeping their jobs, and bringing the bottle man- ufacturing business back to Meriden. Lambiase was per- ceived as being overly interested in the concerns of the former employees, who were outside the plant. Though under the Company's written proposals they could be re- hired at any salary the company wanted, Knapp testified that in talking about new hires, "people on the street," Dibble gave assurances that former employees who were rehired would receive equal pay. Knapp asserted that Dibble said this several times, but was evasive about whether he ever said it in the presence of Lambiase. He testified, at one point, that Dibble said it at the time the contract was signed. That took place when Lambiase was not present. However, disagreement between the majority of a bar- gaining unit and union officials who negotiate a contract about whether it should be accepted is a far cry from a decision by the majority that they no longer wish to be represented at all by the Union. If that were the case, then every refusal of the membership to ratify a negotiat- ed contract would result in automatic decertification of the Union, a patently absurd result. The degree of sup- port or lack of support for a union's bargaining position among the employees is not a proper concern of the em- ployer. Obie Pacific Inc., 196 NLRB 458, 459 (1972). And a bargaining representative is not to be considered de- funct while it is willing and able to represent the em- ployees. See Yates Industries, 264 NLRB 1237, 1249 (1982). In any event, the evidence establishes that Respond- ent's officers could not reasonably have believed that the UE no longer represented the employees. The purported agreement that they themselves prepared begins with a declaration that it is a contract entered into between Parker and Union Mfg., on the one hand, and the United Electrical, Radio &, Machine Workers of America "in behalf of and in conjunction with Local 230." According to Caron, he was instructed to contact Lambiase by Re- spondent. Two of the three negotiating sessions were at- tended by Lambiase. Respondent's officers did not ques- 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion his right to be there; they negotiated with him. They cannot even contend that the withdrawal of majority support for the Union occurred between the time Lam- biase left after the Thursday morning negotiating session and the time the contract was signed, for the four em- ployees who signed the agreement signed it "For the Union." It is apparent that the Respondent did not discover the UE's lack of majority status until this proceeding was commenced. It never suspected it when Lambiase, early in June, procured issuance of the severance checks that Respondent had failed to issue; when the contract it had put in Caron's hands was turned over to Lambiase; when Lambiase and Bruno showed up for the first negotiating session; and when, after the second session, Lambiase call to arrange a resumption of the discussions. Respond- ent's failure to discern the Union's loss of its majority seems to have persisted well into the postnegotiation period, for, as has been noted, Dibble suggested that Lambiase sign the purported agreement. He did more than that, however: during conferences with Lambiase in early July, he also suggested that the Union file a letter disclaiming its right to represent the employees and, even at that late date, invited Lambiase to submit a further contract proposal. The,evidence admits of no conclusion other than that Respondent was aware that the employees were acting through the UE, and the UE was the lawful bargaining representative of the unit, notwithstanding the bitter dis- agreement between the employees still working and Lambiase about whether the Respondent's proposed con- tract should be accepted. Consequently, the contract that Respondent entered into with four employees, and which Lambiase rejected, refused to sign, and repudiated by letter dated 20 July 1985, was invalid and incapable of serving as a shield for Respondent's unilateral changes in the employees' wages and terms and conditions of employment. If Respondent really thought it was proceeding under the contract, it did so illegally and in violation of the Act. Finally, it ought to be noted how Respondent's mis- deeds in this situation interact with each other. Finding as I do that Respondent failed to bargain in good faith (see below) and unlawfully made unilateral changes in wages and conditions of employment, Respondent is thereby rendered ineligible to impugn the UP's majority status. It is "tainted." See Abbey Medical/Abbey Rents, Inc., 264 NLRB 969 (1982), enfd. 113' LRRM 3240 (9th Cir. 1983)., ' In his posthearing brief, counsel for Respondent cites KSD-AM Radio, 262 NLRB 687, 691 (1982), and Ameri- can Express Reservations, 209 NLRB 1105, 1120, 1121 (1974), as authority for the proposition that knowledge of an employees' decertification petition, by itself, consti- tutes sufficient objective evidence to support a good-faith doubt of a union's majority status. However, in those cases, unlike the present case, there was an absence, ex- pressly noted by the Board, of any context of illegal an- tiunion activities. In Bennington Iron Works, 267 NLRB 1285, 1290 (1983), cited by counsel as a case in which the employer was found to have had objective basis for doubt concerning the Union's status as a majority-sup- ported representative , the employer was nevertheless held in violation of the Act for making unilateral changes because a decertification petition had had its in- ception in a context of unfair labor practices and the em- ployer's conduct was found to have been associated with the inception of the petition. 3. Failure to bargain in good faith as evidenced by Respondent's overall conduct Lambiase requested negotiations in January 1985, but received no reply from Respondent. Instead, Respondent presented a proposed contract to Caron 6 months later, while making it clear that its course of retrenchment had been checked only because the Mexican plant had been destroyed and that the return of work to Meriden de- pended at least partly on whether the Company could speedily negotiate a favorable union contract. It turned out, however, that very little was negotiable. Dibble began the negotiating session with Lambiase and Bruno by stating that Respondent needed a contract by 10 a.m. Friday morning, 28 June, in order to make a decision about whether to bring the bottle manufacturing division back from Mexico. He then reviewed the Re- spondent's contract proposal, which consisted of a severe regression from the terms of the expired collective-bar- gaining agreement, not simply in economic terms, but in respect to matters that the Union regarded as affecting its ability to properly represent the employees in the bar- gaining unit. The proposed contract began, in its recognition clause, with a contraction of the bargaining unit, which was now described in the following terms: The company recognizes the Union as the sole and exclusive bargaining agent with respect to the rates of pay, wages and hours of employment for produc- tion and maintenance employees of the Company but excluding all other jobs such as shipping and re- ceiving employees, set-up men, clerical employees, Engineering Department employees, guards, fore- men, sub-foremen, etc. The duration of the contract was to be for a period of 10 years. The Union's right to notice of changes in work schedules was made subject to the employer's conception of what was practicable. Employees' advancement to higher paying positions was at the discretion of the em- ployer, without reference to seniority. The employer Was given sole discretion to determine which employees to recall from layoff and the order in which they would be recalled, with seniority to be merely one factor in making such decisions. The employer, in its sole discre- tion, could elect to hire new employees to replace laid- off employees. Though it was provided that accumula- tion of seniority would begin 60 days after date of hiring, it was also provided that the employer had the right to extend the probationary period for another 60 days "when it deems it necessary." Another provision stated, "The pension plan will be set-up, changed, altered, re- constructed, administered and in all ways acted upon at the Company's discretion." In a section which curtailed medical insurance benefits, it was provided: LUARLES PARKER CO. Notwithstanding any of the above, if the Company in its sole discretion determines the above benefits to be burdensome, the Company will discuss the problem with the Union for 30 days at the end of which time the Company may unilaterally make whatever changes it desires. Notice of layoffs was to be such " as is practicable." The existing job classifications and incentive system were eliminated and replaced with a job ranking system con- sisting of five wage groups, designated "A" through "E," with pay rate ranges set out for each, but contain- ing no definition of the types of employees that would fall into each of the five categories. A grievance procedure was provided for in which the third step consisted of arbitration by a committee consist- ing of the president of the Company, the plant manager, and an employee selected by the Company who is a member of the Union. All decisions were to be by major- ity vote of the committee, which would be final and binding on the Union (and the Company). A deadline missed at any step resulted in waiver of the grievance. The Respondent gave away ice in the winter in a pro- vision wherein it agreed to abide by Federal laws, such as the Selective Training and Service Act of 1940 and the Occupational Safety and Health Act, regarding which it had no choice anyway, but reserved _for itself an unabridged right to fire any employee, in the following language: The Company recognizes that employees have the right to terminate the employment relationship at any time and for any reason and the Company re- serves the same right as well. In a long clause reserving management's right to run the company, rights were reserved to management "without limitation" to direct and schedule the work force; to hire, promote, transfer, lay off, and recall em- ployees; to reprimand, suspend, discharge, or otherwise discipline employees for cause; to determine the number and duties of employees; to establish, modify, and abolish job classification; to determine the size and composition of the work force; to reorganize and discontinue depart- ments and to introduce new work methods and facilities with consequent reduction in work force. There was a no-strike clause. In the event of an unau- thorized work stoppage of any kind, the Union was ex- pected to publicly disavow the employees' actions. All unwritten past practices were abolished. Bruno indicated a willingness Lo negotiate economic terms, but told Dibble that that would not be done at the price of self-respect, and that the UE was not interested in a 10-year agreement or in the president of the Compa- ny determining the merits of grievances. He suggested that the Company identify critical areas that could be ne- gotiated by Friday morning, but Dibble's response was that everything was important. While the Union was caucusing, Dibble left, giving the labor representatives permission to remain to discuss the agreement. They did so for another 40 minutes, and drew up a counterproposal. 69 The meeting resumed the following morning at 8 a.m. with the same people present except for Bruno, who had returned to Boston. The Company was advised that the UE would accept the wage rate ranges set out in the Company's proposal for five labor grades, but had to know what jobs would fit into each labor grade. To this, Dibble responded that the Company had no idea what jobs would be in the shop, and so he could not say what would fit into each labor grade. Lambiase offered to accept the wage proposal on the understanding that the grades would be clarified before the contract was execut- ed, so that even if that could not be done by Friday morning,' the board would see progress in the negotia- tions. Dibble merely responded that he absolutely needed a signed contract on Friday morning. At that point, Lambiase suggested extending the expired agreement with substantial wage cuts and reductions in vacation and insurance coverage. After the Respondent caucused and returned with its own counterproposal, agreements were reached respecting a number of matters such as work schedule, holidays, holiday pay, bereavement, va- cation, insurance, pay for coffeebreak and washup time. The Company altered its position on a number of these points. However, the only specifics furnished as to the employee groupings was that maintenance people would be in the "A" group, and the Company held fast to its proposals for a 10-year agreement, the final resolution of grievances by the Company president, and a number of other noneconomic matters of a nature offensive to the UE. The UE made a counterproposal wherein for the first time in its relationship with Respondent it accepted a management-rights clause and a nostrike clause. It was at this point that Lambiase excused himself from the negotiations. When he spoke with Caron on the telephone later that day, Caron told him that the agree- ment was for a 10-year term and contained changes that had not been discussed in the meetings that Lanibiase had attended; the labor categories had been filled in a general fashion, the top of the salary range had been raised, and the major medical deductible had been re- duced. Lambiase saw the details only when he obtained a copy of the signed contract on 2 July. The top salary payable in labor grade E was increased over what he had seen earlier by 25 cents an hour, grade D by $1 an, hour, grade C by 75 cents an hour, grade B by $3.50 an hour, and grade A by $4 an hour. Deductible for family insurance was reduced from $300 to $200. A schedule outlining the skill levels of the employees in the various categories was also appended. Lambiase had trouble getting a copy of the agreement until 2 July, and Dibble admitted to him on 2 July that the reason was because he had filed the instant unfair labor practice charge. In a conference at which Annino, Caron, and Knapp were present, Dibble asked Lambiase if the Union was willing to sign the agreement. Lambiase refused, pointing out that the Union could thereby open itself up to a charge of unfair representation brought by persons on layoff status. Dibble suggested that the Union write a letter disclaiming interest in the shop so that the employees could do what they pleased, whereupon Lam- biase called his attention to the seniority rights of the 50 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or 60 persons with recall rights. Bottle manufacturing employees were included in that group. In a private meeting on 3 July, Dibble again suggested that Lambiase sign the agreement or else a disclaimer of interest in the shop. Dibble also commented that he was going to have the agreement reviewed by an attorney to see if it was binding. Lambiase refused to sign it, point- ing out the UE's responsibility to employees on layoff status, those with recall rights, retired employees, and future hires. The extraordinary discretion given in nu- merous important matters solely to the Employer made the contract, in Lambiase's view, nothing more than an agreement that the Union would not represent the em- ployees for 10 years. Dibble indicated a willingness to give consideration to a further UE proposal, but asserted that he needed something quick, and that it had to be a contract that, in Lambiase's view, gave him absolute freedom to be fair' or unfair as he saw fit. Lambiase testified that he contacted Dibble later to test his sincerity about reaching an agreement and asked Dibble candidly if he could live with the union shop. He asserts that Dibble "said absolutely not," that he would not reopen with a union shop. The General Counsel has made the point that, in sug- gesting that the Union disclaim the right to represent the employees, Dibble, in his discussions with Lambiase, never contended that the UE did not in fact represent the employees. In the hearing, counsel for the Respond- ent contended that Dibble had made that precise point and that Lambiase conceded as much in an affidavit that he furnished to a Board investigator in which he stated: I explained to Dibble again what the Union's rea- sons were for not signing the 10-year contract. Dibble stated he understood that the Union was got [sic] between a rock and a hard place. You're either going to be in a position where you'd be in a failure to represent those on layoff, or by those here. You've got 4 active employees who want this agreement here, and you won't sign it and represent them. Dibble then said, "Why don't you or the International just sign a letter saying you no longer represent employees so they can do as they please." I informed Dibble that we could not do that be- cause of the people out on layoff, who had recall rights. I think a fair reading of the affidavit leads to the con- clusion that Dibble suggested that Lambiase disclaim the representation without making any assertion to Lambiase that the UE did not represent the employees. I think he conceded that it did. Lambiase went on record and sent Dibble a letter on 10 July 1985 rejecting "the idea that there is any new agreement between us." The document, executed on 27 June, was stated to have been signed "by four employees and the company, without negotiations with the certified collective bargaining agent. . ." and that it "is not binding on either the local nor the interna- tional." The economic terms sought by the Respondent might not appear terribly unreasonable against the backdrop of its recent history. An out-of-state operation, to which an important segment of the business had been removed, for economic reasons, had been destroyed. One of the con- siderations on which the Respondent was basing its deci- sion concerning whether or not to bring the operation back to Connecticut was whether it could negotiate a much more favorable collective-bargaining agreement than the one that had expired. The employees who signed the agreement did not think the terms too unrea- sonable for acceptance when they weighed them against the possible results of insistence on better terms-the loss of their own jobs and the killing of all hopes for the po- tential recall of those employees who had been laid off. Neither did the Union. The Union acceded to the eco- nomic demands made by Respondent. It was the noneco- nomic terms that were unacceptable to it and that Re- spondent was insisting on. The provisions of the 10-year agreement, signed by four of the employees on 27 June 1985,_ summarized above, seem, in many particulars, almost calculated to touch raw union nerves. They breathe an intense antiun- ion animus. Unfettered discretion was given to manage- ment in a number of important areas normally reserved for negotiation between management and a union, and the new proposal omitted important provisions of the ex- pired agreement that had provided for seniority in lay- offs and rehiring, consultation between the Respondent's personnel manager and the local president, return to work ' of all laid-off employees before new employees were hired, a modified form of superseniority, notice in the event of layoff and equal distribution of overtime work. Lambiase testified that agreement was reached on eco- nomic terms, but the UE could not accept a 10-year con- tract period, the failure to afford those on layoff status their recall rights, the Company's reservation of the right to discontinue insurance plans and to alter and terminate the pension plan at will, the exclusion from the bargain- ing unit of some jobs that formerly had been included, the omission of union security and checkoff clauses, and the loss of the seniority provisions. The vagueness of the job classifications was also a problem, along with the res- ervation to the Company of the right to determine, in its sole discretion, the hourly rate of each employee and ab- solute employment termination rights. He felt that the si- multaneous inclusion of a no-strike clause and reservation to the company president of the ultimate right to resolve grievances in effect deprived the Union of an effective remedy in the event of a contract violation. In his view, the whole process of the negotiations was a sham. The evidence convinces me that Lambiase was correct in his assessment. On cross-examination, Respondent's counsel pressed Lambiase on the question of whether he had analyzed the financial impact on the Company of the ultimate ac- ceptance in the signed agreement of the 16 or so out- standing items to which he had refused to agree. That does not, by itself, establish these matters as contractual economic items. If there was an economic basis for ad- vancing them, it was a point that would have had to have been established by testimony from an officer of the Respondent. Lambiase testified that nothing was ever CHARLES PARKER CO. said to him about an economic justification for any of the terms to which he had objected as matters of union self- respect. In any event, financial hardship does not relieve an employer of the obligation to bargain in good faith. Excelsior Pet Products, 276 NLRB 759 (1985). The various aspects of Respondent's misconduct, are all within the scope of well-established precedents de- claring such conduct to be in violation of the Act, begin- ning right at the outset with Respondent's arbitrary scheduling of the meetings and refusal to wait for Lam- biase to adjust his schedule. Moore Drop Forging Co., 144 NLRB 165 (1963). The contract proposal put forward by Respondent contained terms that Respondent's officers and board of directors must have realized were unac- ceptable to-any union that valued its self-respect and rep- utation in the labor field. Parties to negotiations are re- quired to "approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties." L.L. Majure Trans- port Co. v. NLRB, 198 F.2d 735, 739 (5th Cir. 1952). A party's conduct must evidence a real desire to come to agreement. NLRB v. Insurance Workers (Prudential Insur- ance)', 361 U.S. 477, 498 (1960). The presentation of pro- posals, which are an affront to a "self-respecting union," do not manifest such an intent and are indicative of bad- faith bargaining. NLRB v. Reed & Prince Mfg., Co., 205 F.2d 131, 139 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953). Respondent's insistence on exclusive control over wages and other important terms of employment, in effect requiring relinquishment by the UE of rights guar- anteed by the Act, falls into this category. S-B Mfg. Co., 270 NLRB 485, 495, 496 (1984). Respondent's conduct, violative of the Act, patently included adherence to unreasonable demands, NLRB v. Holmes Tuttle Broadway Ford, 465 F.2d 717 (9th Cir. 1972); "unyielding rigidity" with respect to such de- mands; Borg-Warner Controls, 198 NLRB 726, 730 (1972); efforts to bypass the Union, Cal Pacific Poultry, 163 NLRB 716 (1967); and unilateral changes in terms and conditions of employment. Respondent's submission of its contract proposal di- rectly to the employees, after ignoring a union invitation to negotiate; the fait accompli in obtaining execution of an agreement in the absence of Lambiase, the Interna- tional negotiator; the inclusion in the Respondent's final contract proposal of terms not offered to Lambiase; the harshness of the contract terms insisted on by the Re- spondent; the Respondent's unyielding and, uncompro- mising stance in the negotiations; Respondent's insistence on great speed and on the absolute necessity of a con- tract favorable to Respondent; the emphasis placed by Respondent on the connection between a quick, favor- able agreement and the continuance of employment; and the implementation by Respondent of the terms and con- ditions of the agreement arrived at in this unlawful manner with the employees directly-are all factors that must be considered together and, when so considered, lead me to the conclusion that the Respondent did not bargain in good faith with the Union and thereby violat- ed Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 71 1. The Charles Parker Co., Inc., and Union Manufac- turing Co., Inc., referred to collectively as the Respond- ent were, at all pertinent times, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The UE is a labor organization within the meaning of Section 2(5) of the Act. 3. The Charles Parker Co., Inc., and Union Manufac- turing Co., Inc., are, and at all material times have been, affiliated business enterprises that formulated and admin- istered a common labor policy affecting employees of both concerns. 4. The UE, at all pertinent times, was and continues to be the exclusive representative for the purposes of col- lective bargaining within the meaning of the Act of Re- spondents' employees in bargaining units defined identi- cally in the case of each company as follows: All production and maintenance employees, includ- ing shipping and receiving employees, and set-up men, employed by the Company at its Meriden, Connecticut facility, but excluding clerical employ- ees, engineering department employees, guards, foremen, subforemen, and any other supervisory employees with authority to hire, promote, dis- charge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. 5. The Charles Parker Co., Inc. and Union Manufac- turing Co. have failed and refused to bargain collectively and in good faith with the UE, and have engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act: (a) By their overall acts and conduct. (b) By submitting contract proposals directly to unit employees prior to their submission to the Union. (c) By negotiating wage increases and other terms and conditions of employment directly with individual unit employees and soliciting those employees to sign a col- lective-bargaining agreement. (d) By implementing changes in wages, hours, and working conditions of employees in the units, without af- fording the UE an opportunity to negotiate and bargain as the exclusive representative of their employees with respect to such changes. (e) By falling to bargain in good faith. 6. The above are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY An egregious violation of the Act has occurred in this case. The Respondent deliberately chose to ignore a union that it well knew represented a majority of the em- ployees remaining at its Meriden facility; submitted a contract proposal directly to the employees ; and, after the employees brought in the International field repre- sentative to negotiate for them, waited for a suitable op- portunity to induce the employees to sign a collective- 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining agreement in the absence of the field repre- sentative. The contract proposal thus purportedly adopt- ed was of such a nature that Respondent had to have known that, in the form in which it then existed, it could never be agreed to by the UE. The Respondent is not presently operating in Meriden, Connecticut. It is impossible to say, of course, what the future will bring, but these proceedings were vigorously contested, which suggests that the possibility of Re- spondent's reappearance on the local scene remains alive. The General Counsel wants to be ready if and when that occurs. For this purpose, a remedial Order will suffice requiring the Respondent corporations to bargain with the Union in the event that they decide to resume manu- facturing operations, and that they mail a notice to all of their employees, at their last-known addresses, advising the employees of the instant decision and the measures directed to be taken or desisted from. Such a proposal is well suited to the exigencies of this case, and I have made recommendations in line with that request. In the posthearing brief, the General Counsel also sug- gests a limited backpay remedy, arguing that Respond- ent's employees were denied the opportunity to bargain through their contractual representative at a time when such bargaining "would have been meaningful and, if en- gaged in in good faith, could have resulted in continued and expected employment opportunities." He cites Trans- marine Corp., 170 NLRB 389 (1968), which I fmd to be inapplicable in the circumstances of the present case. The only basis that I can think of (none are cited by the Gen- eral Counsel) for the assumption that there would have been "continued or expected employment opportunities" would be the fact that Lambiase agreed to Respondent's economic proposals, which Respondent said it needed in order to bring the bottle business back. However, there is no evidence that that concession would, by itself, cause the return of the operation to Meriden. All Re- spondent said was that the return would be impossible without a contract that management regarded as viable. Certainly other business considerations must also have been involved. There is no evidence as to what those were. The evidence does make it apparent that the ex- citement of the employees over these prospects was not shared by management. The take-it-or-leave-it attitude exhibited by Dibble in the contract negotiations rein- forces my impression that the actual prospects for the return of the business were not at all great and that man- agement's attitude was that if it could not even get the kind of union contract it wanted, there was no point in making any extraordinary efforts to bring the operation back. In fact, as of the time of the hearing, it had not been resumed in Connecticut. It should be recalled, in this connection, that in 1983 all departments of Respond- ent's business were in retrenchment, and its building was for sale. There do not appear to have been any over- whelming inducements to bring the bottle operation back to Connecticut, and the extent of its operations in such case is problematical. Rather than get mired down, in the compliance phases of this proceeding, in speculation about what might have occurred, I find that the purposes of the Act will be more effectively achieved by compelling Respondent, if and when it ever brings the operation back to Connecti- cut, to bargain with the UE as the collective-bargaining representative of the employees in the unit, and to let the employees know that that is what it is required to do. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondents, The Charles Parker Company, Inc. and Union Manufacturing Co., Inc., Meriden, Connecti- cut, their officers, agents, successors, and assigns,'shall 1. Cease and desist from (a) Refusing to meet and bargain collectively with and recognize United Electrical, Radio and Machine Work- ers of America, and its Local 230, as the exclusive col- lective-bargaining representative of their employees in the collective-bargaining units existent in each company described as follows: All production and maintenance employees, includ- ing shipping and receiving employees, and set-up men, employed by the Company at its Meriden, Connecticut facility, but excluding clerical employ- ees, engineering department employees, guards, foremen, subforemen, and any other supervisory employees with authority to hire, promote, dis- charge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. (b) Failing and refusing to comply with all subsisting obligations under the collective-bargaining agreement be- tween the Respondents and the Union dated 11 June 1981 as extended by subsequent agreements to 11 June 1984. (c) Submitting contract proposals to, negotiating, or otherwise dealing with employees directly in order to bypass the Union. (d) Implementing any of the terms or conditions of a purported agreement, entered into between the Respond- ents and employees, dated 27 June 1985. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain collectively and in good faith with United Electrical, Radio and Machine Workers of America as the exclusive bargaining representative of all employees employed in the bargaining units with respect to wages, hours, and other terms and conditions of em- ployment of the employees in the bargaining units or, if Respondents have effectively terminated their business or are in the process of doing so, with respect to the effects on the employees of the termination of operations, or, if 2 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. CHARLES PARKER CO. Respondents are having the work of the bargaining units performed elsewhere than in Meriden, Connecticut, whether by reason of subcontracting, maintenance of a facility elsewhere, or otherwise , with respect to the ef- fects on the employees of the removal of such work from Meriden, Connecticut, and reduce to writing any agreement reached as a result of such bargaining. (b) Comply with subsisting obligations under the col- lective-bargaining agreement entered into between Re- spondents and the Union, dated 11 June 1981 and ex- tended to 11 June 1984, as modified to the date of such extended term, and continue such compliance as circum- stances may require until such time as Respondents nego- tiate in good faith to a new agreement or to an impasse. (c) Mail to the last known addresses of the former em- ployees who had been members of the above-described bargaining units copies of the attached notice marked 73 "Appendix."s copies of the notice, on forms provided by the officer in charge for subregion 39 shall , after being signed by an authorized representative of Respondents, be mailed immediately to the employees and posted at a location in Respondents' offices in Plantsville, Connecti- cut, where notices to employees are customarily posted, and shall be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notice to employees are customarily posted. Rea- sonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the officer , in charge for Subregion 39 /m writing within 20 days from the date of this Order what steps Respondents have taken to comply. ' If this Order is enforced by a judgment of a United States court of appeals, the Words in the notice reading "Posted by Order of the Nation- al 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."