Microdot, Inc.

MICRODOT, INC. 1015 Valley Mould Division, Microdot, Inc. and Office and Professional Employees International Union, Local 17, AFL-CIO. Case 8-CA-18991 May 18, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On October 27, 1986, Administrative Law Judge Donald R. Holley issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs, and the Respondent filed an answering brief. 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, and conclusions, as modified herein, to modify the remedy,' and to adopt the recommended Order as modified. We agree with the judge's conclusion that the Respondent violated Section 8(a)(5) by implement- ing its final offer when no impasse existed. At two December 1985 bargaining sessions, the Respond- ent presented, and the Union rejected, a four- option wage proposal. On January 24, 1986;2 the Respondent sent a letter to its employees stating that poor economic conditions required that their salaries be reduced. Salaries of employees repre- sented by the Union were to be cut 6 percent on February 1. The Union protested this action claim- ing the Respondent had not indicated its intention to cut wages during bargaining sessions. The wage cut was not put into effect for bargaining unit em- ployees on February 1. At the February 18 bargaining session, Union Representative Porcaro informed the Respondent that the Union could not agree to a 6-percent wage decrease for its members. On that date, the parties agreed to the Respondent's December 23 and 30, In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. , Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) ' We shall order the Respondent to rescind, on request by the Union, any unilateral changes in its employees' wages, hours, or other terms and conditions of employment. Our Order should not be construed as requir- ing the Respondent to cancel any improvement in benefits without a re- quest from the Union. See Ehas Mallouk Realty Corp., 265 NLRB 1225 fn 3 (1982). We agree with the judge that, under the circumstances of this case, a visitatorial clause, requested by the General Counsel, is not warranted See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 2 All dates are in 1986 unless otherwise indicated 1985 four-option wage proposal with one modifica- tion. Both parties shared the opinion that their ne- gotiations had been successfully concluded. How- ever, they did not share the same interpretation of the meaning of the February 18 document. The Respondent was of the view that the Union had, in fact, agreed to the 6-percent wage cut. The Union, on the other hand, viewed the agreement as not in- cluding a 6-percent wage cut. On February 21, the Respondent withdrew its last offer of February 18. On Friday, March 7, the Respondent presented the Union with its "final offer," which specifically included a 6-percent wage cut effective March 10 (item 2). The offer also included the four-option wage proposal with modification which had previ- ously been agreed to on February 18. In addition, the offer contained notice to the Union that the Respondent had the right to subcontract work (item 10) and a proposal providing union-represent- ed employees with enumerated "non-wage" bene- fits similar to those which might be provided to nonrepresented employees (item 11). Porcaro in- formed the Respondent that items 2, 10, and 11 were new items which differed from those included in the previously approved February 18 agreement. The Respondent insisted they were items which had been "on the table." The Respondent informed Porcaro this "final offer" would be implemented on Monday, March 10, if it were not presented to and approved by the union membership by Sunday, March 9. The Respondent also stated to Porcaro that it would not entertain any counterproposals. The Union informed the Respondent that it could not present the offer to its membership on time and that no impasse, in bargaining had been reached. The Respondent implemented its final offer of March 7 on Monday, March 10. The judge found, and we agree, that item 11 of the Respondent's March 7 offer was a new item. We also find that although the Respondent's desire for a 6-percent wage cut had surfaced prior to March 7, the Respondent knew on March 7 that its 6-percent wage cut proposal (item 2) would likely come as a surprise to the Union. The Respondent first proposed the 6-percent wage cut in a letter to employees. At the February 18 bargaining session, the Union expressed its opposition to the wage cut. Later at the same session, the parties thought that an agreement had been reached. In fact, each party had its own interpretation of the so-called Febru- ary 18 agreement: the Respondent believed the par- ties had agreed to a 6-percent wage cut, 'while the Union believed that wage rates in the expired con- tract would continue in effect. Thereafter, the Re- spondent withdrew its February 18 offer and the Union believed, mistakenly in retrospect, that the 288 NLRB No. 111 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wage cut was no longer in issue. Most significantly, the judge specifically found, and we agree, that the Respondent knew that the Union interpreted the February 18 proposal as excluding a wage cut. Thus, at a time the Union believed that the 6-per- cent wage cut proposal had been dropped, the Re- spondent knew of the Union's belief. Moreover, there had been no further bargaining on wages. In- stead, the Respondent presented the Union with a final offer including the wage cut and announced that, the proposal would be implemented on the next workday. Finally, the Respondent stated that counterproposals on its final offer would not be considered. In sum, the facts here show that the Respondent, after making a final offer that included two items requiring further study and discussion, precluded bargaining by giving the Union only 3 days to con- sider the offer and by stating that it would not en- tertain counterproposals. Under these particular circumstances, we conclude that the parties had not, after good-faith negotiations, exhausted the prospects of reaching an agreement and that, there- fore, no valid impasse existed. 3 Thus, the Respond- ent was not privileged to implement the terms of its final offer on March 10 and, accordingly, violat- ed Section 8(a)(5) by doing so. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Valley Mould Division, Microdot, Inc., Hubbard, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) On the Union's request, revoke any unilater- al changes made with regard to the wages, hours, or other terms and conditions of employment of all employees in the bargaining unit and make them whole for any losses they may have suffered as a result of the unilateral changes in wages, hours, or other terms and conditions of employment, with in- terest." 2. Substitute the attached notice for that of the administrative law judge. 3 See Taft Broadcasting Co, 163 NLRB 475, 478 (1967), affd sub nom Television Artists AFTRA v. NLRB, 395 F.2d 622 (D C. Cir 1968) 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 unilaterally implement changes in the terms and conditions of employment of the em- ployees in the bargaining unit described below without first engaging in bargaining with Office and Professional Employees International Union, Local 17, AFL-CIO. 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 with the above-named Union, as the exclusive represent- ative of all employees in the appropriate unit, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate bargaining unit is: All office clerical employees, technical em- ployees, including draftsmen, draftsmen train- ees, assistant manager of the order department, programmer analyst, secretary to the Vice President of Sales, printer, mailman, and office janitor, and professional employees, including Industrial Engineer Technicians, Industrial En- gineer Trainees, general accountants and plant engineers, located at our facility, but excluding plant clerical employees, confidential employ- ees, secretary to the Industrial Relations Man- ager and secretary to the Controller, plant lab- oratory employees, nurse, sales and service representatives, mould design engineer and guards and supervisors as defined in the Act, and excluding all other employees. WE WILL, on the Union's request, revoke any unilateral changes made with regard to the wages, hours, and other terms and conditions of employ- ment of all employees in the bargaining unit and WE WILL make whole all bargaining unit employ- ees for any losses they may have suffered as a result of our unilateral changes in terms and condi- tions of employment, with interest. VALLEY MOULD DIVISION, MICRO- DOT, INC. MICRODOT, INC. 1017 r Steven Wilson, Esq., for the General Counsel. Robert E. Mann, Esq. (Seyforth, Shaw & Fairweather), of Chicago, Illinois, for the Respondent. DECISION STATEMENT OF THE CASE DONALD R. FIOLLEY, Administrative Law Judge. On an original charge filed on 6 March 1986, the Regional Director for Region 8 of the National Labor Relations Board issued a complaint on 18 April 1986 which alleged that Valley Mould Division, Microdot, Inc. (the Re- spondent) engaged in conduct that violates Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). By timely answer, Respondent denied it had com- mitted the unfair labor practices alleged in the complaint. The case was heard in Youngstown, Ohio, on 13 August 1986. All parties appeared and were afforded full opportunity to participate. On the entire record, includ- ing posthearing briefs filed by the parties, and from my observation of the demeanor of the witnesses who ap- peared to give testimony, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation, maintains a place of business in Hubbard, Ohio, where it is engaged in the manufacture of ingot moulds arid stools. It annually sells and ships from its Hubbard operation products valued in excess of $50,000 directly to points outside the State of Ohio. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that Office and Professional Employees International Union, Local 17, AFL—CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. in. THE ALLEGED UNFAIR LABOR PRACTICES Since 8 August 1974 the Union has been the exclusive bargaining agent for certain of Respondent's employees employed at its general office and its melt facility office, which are both located in Hubbard, Ohio. 1 The most recent collective-bargaining agreement covering such employees, which was in effect from 1 December 1982 through 30 November 1985, was placed in the record as 1 The bargaining unit, which is admitted to constitute an appropnate unit within the meaning of Sec 9(b) of the Act, is All office clerical employees, technical employees, including drafts- men, draftsmen trainees, assistant manager of the order department, programmer analyst, secretary to the Vice President of Sales, print- er, mailman, and office Janitor, and professional employees, including Industrial Engineer Technicians, Industnal Engineer Trainees, gener- al accountants and plant engineers, located at Respondent's facility, but excluding plant clerical employees, confidential employees, sec- retary to the Industrial Relations Manager and secretary to the Con- troller, plant laboratory employees, nurse, sales and service repre- sentatives, mould design engineer and guards and supervisors as de- fined in the Act, and excluding all other employees. General Counsel's Exhibit 2. Commencing 20 November 1985 the parties sought to negotiate a new agreement. As negotiations progressed, the above-described 1982 con- tract was extended first through 31 December 1985, and then through 31 January 1986. Judith Ours, one of two union stewards who serviced unit employees, testified without contradiction that, at some undesignated time during the fall of 1985, Robert Welton, Respondent's principal spokesman during bar- gaining, asked her what it would take for their unit to vote for decertification. When she responded the major issue in people's minds was job security, Welton asked if he could write something up that would tend to alleviate that problem. Although Ours told him they would look at anything he wrote up, Welton did not thereafter pursue the matter. Bargaining sessions were held on 20 November, 5, 23, and 30 December 1985, 18 February, and 7 March during the calendar year 1986. The Union's chief negoti- ator, George Porcaro Jr., an International Union o icial, described what occurred at each session when he ap- peared as a witness. Although Respondent chose not to cause a witness to describe what occurred during each session, it, without objection, placed notes taken by Daniel Lawrence, its manager of industrial relations, at all sessions except the 18 February session in the record as Respondent's Exhibit 1. Set forth below is a summary of occurrences during bargaining which is gleaned from review of Porcaro's testimony, Lawrence's notes, and the various proposals placed in the record by the Gener- al Counsel. A. Introduction The circumstances in which negotiations were accom- plished by the Respondent and the Union involved in this case were somewhat unusual. During the course of bargaining, Respondent, which then operated plants in Hubbard and Chicago, was seriously considering the pos- sibility that it would have to close one of its plants be- cause it had been unable to sell all the products both plants were capable of producing. Although negotiating with the instant Union, it was also engaged in negotia- tions with the Steelworkers, who represented the pro- duction and maintenance employees in its plants. The record clearly reveals Respondent was seeking to cause both the instant Union and the Steelworkers to agree to significant wage concessions. B. The 20 November Session At the commencement of the 20 November session, Respondent presented the union negotiating team with certain information concerning its business operations to make them aware of the fact that the Company was op- erating at a loss and anticipated further losses during 1986. The parties then exchanged proposals. The Union's proposals were broadly stated and no exact figures were provided. They indicated it sought a general pay in- crease, improvement in pension and other benefits accru- ing to retired employees, and improvements in health 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and welfare programs. 2 Respondent's proposals, 13 in number, were specific. It proposed a 3-year contract term, a 15-percent wage reduction, elimination of an income protection plan, 3 elimination of dental coverage, alteration of the basic insurance plan, a 40-hour work- week,4 elimination of time and one-half for holiday work, elimination of Sunday premium, elimination of shift differential, incorporation of ERISA and TEFRA requirements in pension plan with no increase in plan ex- pense, elimination of personal holiday, addition of word "decrease" to holiday article, 5 and removal of specified letter agreements attached to the 1982-1985 contract. The parties agreed during the 20 November session that Welton had authority to bind Respondent; that the Union was required to submit proposals to its member- ship for ratification; and that their next bargaining ses- sion would be held on 5 December. C. The 5 December Session Prior to the 5 December session, the parties executed a document that extended the expiring contract through December 1985. The document provided any agreement on wages would be retroactive to 1 December 1985. The parties sought on 5 December to define the real issues which were to be considered during bargaining. The Union counterproposed a 2-year contract term, with a wage reopener at the beginning of the second year; the parties agreed to reduce income protection benefits from 52 weeks to 26 weeks, the same program then in effect for nonrepresented salaried employees; Respondent dropped its elimination of dental coverage proposal; the Union agreed to accept the same basic insurance cover- age then in effect for nonrepresented salaried employees, and agreed to accept increases or decreases those em- ployees would experience during the contract term (called "me too" agreement); Respondent dropped its 40- hour workweek proposal, its Sunday premium proposal, its elimination of shift differential proposal, and its per- sonal holiday proposal; the Union agreed to "me too" treatment of holidays and insurance; and the parties agreed to make appropriate changes in the letter agree- ments which would be attached to any agreement reached. Although the Union had originally counterproposed a 15-percent wage increase, Porcaro indicated during the 5 December session that he was seeking parity with nonre- presented salaried employees. At some point during the Union's 1982-1985 contract term, Respondent had elimi- nated a bonus plan which covered nonrepresented sala- ried employees. The plan, according to Respondent wit- ness Welton, was one in which employees received bo- nuses which amounted to from 15 to 40 percent of their salaries. Respondent "bought out" the plan by canceling it and giving the employees an 8-percent increase in their , 2 See G.C. Exh 3 3 The income protection plan was, in effect, a sick leave plan which provided for 52 weeks of benefits under the terms of the 1982-1985 con- tract 4 The existing workweek was 37-1/2 hours 5 The expiring contract provided for increasing the holidays and insur- ance of unit employees if those benefits were increased for certain other employees. base rate. Porcaro indicated the 8-percent increase was "new money," and he signified his feeling that bargain- ing unit employees were entitled to an 8-percent increase in their base rate. Respondent rejected Porcaro's argu- ment indicating the nonrepresented salaried employees had, in fact, suffered wage reductions ranging from 7 to 42 percent. At some point, Welton suggested "me too" agreement on pensions. Porcaro rejected the proposal observing the pension plans were not the same. Although the differences in the plans were not explained, Welton observed the benefits were the same. During the 5 December session, the Union claimed that reduction in forces and consolidation of duties had caused the members of its bargaining unit to be misclassi- fied. The parties discussed ways the problem could be resolved through the grievance machinery of the con- tract. They reached no final agreement. D. The 23 December Session At the commencement of the 23 December session, Respondent presented the Union with the following wage proposal: 1. If Company installs a ment program for non- union salary personnel, the same merit pool % will be applicable to union personnel as a general in- crease on the first December 1, that falls within the merit program period. Union personnel will be in- cluded in any general wage increase (decrease) given to non-union salary personnel. 2. If Company installs a merit program or general increase (decrease) for non-union personnel, a simi- lar stand alone program will be applicable to union personnel. 3. If Company installs a merit program or general increase (decrease) for non-union personnel, a simi- lar stand alone program will be applicable to union personnel. The merit program will be administered by union personnel (merit increase must be spread evenly through the merit period). 4. Union employees will be included in any merit program or general increases (decreases) applicable to non-union salary personnel. The Union rejected Respondent's optional wage propos- als with Porcaro commenting they would not tie-in to an automatic wage decrease. The Union counterproposed a 3-year contract term with wage reopeners the second and third years. In the alternative, it proposed a lump sum signing bonus of $1500 per employee (equating to approximately 6 percent), and a 5-percent wage increase on 1 January 1986. Respondent then proposed a 3-year contract term with no reopeners, and "me too" on wages on a 1 December 1986 and 1 December 1987 basis. Welton observed Respondent was projecting a $23 mil- lion loss in 1985. The only agreement reached during the session was agreement on the method for settling inequi- ty adjustment grievances. MICRODOT, INC. 1019 E. The 30 December Session The parties made no progress during the 30 December bargaining session. Welton sought to cause the Union to agree to one of the four options presented by Respond- ent's wage proposal by observing Respondent was losing money and it was asking the Steelworkers to accept an 8-percent wage decrease in bargaining with that Union. Porcaro reiterated his argument that the nonrepresented salaried employees had received an 8-percent increase al- though unit employees had received nothing. At the con- clusion of the session, Respondent presented the Union with the Company's final offer. It provides (G.C. Exh. 7): 1. 3 year contract to 12/1/88. 2. Union choice of one of four wage changes thru out contract. 3. IPP reduced 52 weeks to 26 weeks (Me too). 4. Insurance Plan—Me too. 20% employee [sic] co-insurance added to basic plan up to $1,500 employee out of pocket per cal- endar year (includes deductible). 5. Pension as presented ERISA & TEFRA re- flected. 6. Holidays—Decrease added to language on page 59. 7. Job Upgrade Review-- A. Employee has 30 days after signing of memo of agreement to request and submit areas of job change. B. Any upgrades to be retroactive to 12/1/85 but not to exceed 90 days. C. Union will screen requests 1st. 8. Letters will be updated. Porcaro indicated on receipt of the Company's last offer that it would be submitted to the membership with a rec- ommendation that they reject it. Welton asked when it would be presented to the membership indicating the Company would like to present the membership with all the facts before they voted. Porcaro voiced doubt that the Company could legally discuss the offer with em- ployees. Ours testified that on 6 January 1986, the Monday fol- lowing the 30 December session, unit members were told there would be a meeting during their lunch hour to take a vote on the Company's last offer. She indicated the meeting did not occur, however, as Welton approached her that morning and they agreed to extend the old con- tract through the month of January 1986. F. Late December and January Events By an agreement dated 31 December 1985, the parties extended the 1982-1985 agreement through 31 January 1986, providing therein that any wage agreement would be retroactive to 1 December 1985. The record fails to reveal that either party requested that a negotiating session be held during January 1986. By letter dated 24 January 1986, Respondent's presi- dent informed Respondent's salaried employees that the Company intended to take specific action to reduce its expenses. The body of the letter states: As you know, business conditions have not im- proved. As a result I must announce that effective February 1, 1986, the following will occur: 1. My salary will be reduced by 10.0%. 2. Staff salaries will be reduced by 9.0%. 3. Exempt salaries will be reduced by 7.4%. 4. Non-exempt salaries will be reduced by 6.0%. 5. All membership and subscriptions will be re- viewed prior to March 1, 1986, with the objective of maximum elimination. Effective March 1, 1986, company contributions to the Salaried Savings Plan will be suspended for an indefinite period of time. You will receive fur- ther information on this matter in a few days. I trust you will understand the necessity for these changes and share my continued optimism for the future. Porcaro testified the above-quoted letter caused him to telephone Welton on two occasions shortly after copies of the document were distributed. Although he failed to fully describe the conversations, he indicated he ex- pressed displeasure with Welton by claiming Respondent had obviously planned to reduce salaries for some time, but had failed to indicate such an intention during their bargaining sessions. Porcaro testified the bargaining unit employees fell in the class of employees who were scheduled to have their salaries reduced by 6 percent. As indicated, infra, those reductions were not visited upon unit employees until 10 March 1986. G. The 18 February Session On 7 February 1986 the parties were scheduled to resume negotiations with the assistance of Federal Medi- ator Dave Thorley. Although they appeared at the ap- pointed place and time, Thorley did not. Consequently, a meeting date of 18 February was agreed on. At the commencement of the 18 February session Por- caro announced that there was no way the Union was going to agree to a 6-percent wage decrease. After he then claimed the Company was using the unit employees as pawns in their concession negotiations with the Steel- workers, Thorley separated the groups and sought to mediate their dispute. Eventually, the parties agreed on language that should be added to the Respondent's wage offer that had been on the table since 23 December and had been included in its 30 December final offer. The document containing the language was as follows: 2/18/86 Effective this date the Company modifies its offer of 12/30/85 as follows: Add to the list of 4 options available for selection by the Union a new paragraph which will read— "All Union Personnel will be involved in any other general compensation programs the Company makes available to non-exempt personnel." 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Submitted through Mediator Dave Thorley for confirmation by the Company as to this modifica- tion. After Porcaro, Welton, and Mediator Thorley initialed the document, which had been prepared by Porcaro, the meeting ended. It is undisputed that both parties were of the view at that time their agreement concluded negotia- tions. H. Events that Followed 18 February Session Welton testified he interpreted the document signed on 18 February to mean that the Union had agreed to take a 6-percent wage reduction. He spoke with Union Steward Ours on the morning of 19 February and inquired when the Union intended to submit the final offer as amended to the unit employees for ratification. Ours informed him there would be no ratification meeting. When he asked why, she told him he would have to talk to Porcaro. Al- though Welton sought several times to contact Porcaro by phone subsequent to his conversation with Ours, the latter was out of town and could not be reached. During his appearance as a witness, Porcaro testified he construed the 18 February document to constitute an agreement that only general compensation changes vis- ited upon unrepresented nonexempt employees subse- quent to 18 February 1986, would be simultaneously vis- ited upon employees in the bargaining unit. He testified the 18 February date was controlling because when the document was signed no contract extension was in effect and, consequently, the parties had not agreed at that time that any agreement on wages would be retroactive to any earlier time. Porcaro further indicated that he con- strued "general compensation programs" to mean wage programs rather than benefit programs. For some unexplained reason, the Union did not submit the Company's final offer as amended by the 18 February document to unit employees for ratification im- mediately after 18 February. On 21 February, Respondent, by a letter delivered to Ours, withdrew its last offer and requested a meeting in the Company's main conference room at 7 p.m. on Monday, 24 February. Porcaro was unavailable and no such meeting was held. On 6 March 1986 the Union filed the charge in the in- stant case alleging, inter alia, that Respondent had violat- ed Section 8(a)(1) and (5) of the Act by engaging, "in . . . bad faith bargaining through regressive bargaining tactics." I. The 7 March Session On 7 March the parties met once more with Mediator Thorley. At the commencement of the meeting, the Union was presented with the following document (G.C. Exh. 12): Company Final Offer 3-7-86 1. 3 Year Contract to 12-1-88 (No Reopeners). 2. 6% wage reduction effective 3-10-86. N 3. Union choice of one of the following four wage changes throughout the contract: a. If Company installs a merit program for non-union salary personnel, the same merit pool % will be applicable to union personnel as a gen- eral increase on the first December 1, that falls within the merit program period. Union person- nel will be included in any general wage increase (decrease) given to non-union salary personnel. b. If Company installs a merit program or gen- eral increase (decrease) for non-union personnel, a similar stand alone program will be applicable to union personnel. . c. If Company installs a merit program or gen- eral increase (decrease) for non-union personnel, a similar stand alone program will be applicable to union personnel. The merit program will be administered by union personnel (merit increases must be spread evenly throughout the merit pro- gram). d. Union employees will be included in any merit program or general increases (decreases) applicable to non-union salary personnel. and all Union personnel will be involved in any other general compensation programs the Company makes applicable to non-exempt salary personnel. 4. IPP reduced from 52 weeks to 26 weeks (Me Too). 3-10-86 5. Insurance Plan changes—(Me Too) effective 3-10-86: 20% Employee Co-insurance added to Basic Plan up to $1,500 employee out-of-pocket per calendar year (includes deductibles). 6. Pension Plan changes as presented to conform to ERISA and TEFRA—(Me Too). 7. Holidays—the word "decrease" added to lan- guage on page 59. (Me Too). 8. Job upgrade review: a. Employee has 30 days after signing of Memo- of Agreement to request and submit areas of job change. b. Any upgrade to be retroactive to 12-1-85, but not to exceed 90 days. c. Union will screen requests first. 9. Letters and memo's [sic] will be updated, changed or deleted, specifically letters on pages 53, 55, and dated 11-18-83 are no longer applicable and will be deleted, others will be modified appropriate- ly. 10. This confirms the Union has been advised the Company is trying to reduce costs by eliminating employees including having work performed by outside suppliers. 11. If the Company shall, during the term of the (Collective Bargaining Agreement), modify, termi- nate, or substitute a new plan for any currently ex- isting plan of non-wage benefits generally covering non-bargaining non-exempt salaried employes [sic] of the Company, such action shall apply as well to the corresponding plan covering members of the bargaining unit. For purposes of this Agreement, MICRODOT, INC, 1021 "plan of non-wage benefits" means the Retirement Plan, insurance plans, severance pay plan, salaried savings plan, salary continuation for sickness or injury and other non-wage benefits. Simultaneously, the Union was presented with a memo signed by Welton that stated the Company's final offer of 7 March 1986 would be implemented 10 March 1986 if it was not presented and approved by the membership by Sunday, 9 March 1986. Porcaro testified he indicated during the 7 March ses- sion that items 2, 10, and 11 were different from the pro- vision initialed off and agreed to on 18 February. He tes- tified, without contradiction, that he asked Welton if the Company would entertain counterproposals and the reply was it would not. Welton testified his response to Porcaro's claim that items 2, 10, and 11 were new, was that the proposals were those which had been on the table. With respect to item 10, he indicated the old con- tract permitted subcontracting and, after making that ob- servation, he informed Porcaro item 10 was included to preclude the Union from subsequently claiming it had no notice the Company was considering subcontracting. Al- though he admitted he was aware on 7 March that the Company and the Union placed different interpretations on the 18 February document, he testified that in the Company's view item 2, the 6-percent wage decrease proposal, had been agreed to on 18 February. Finally, he testified item 11 of the 7 March final offer simply spelled out the agreement the parties had reached when they signed the 18 February document. On 7 March 1986 the Union sent Respondent a tele- gram that stated: BE ADVISED THAT THE UNION CANNOT REASONABLY SCHEDULE A MEMBERSHIP RATIFICATION MEETING BEFORE MARCH 1, 1986. LIKEWISE, THE UNION MUST DEFER CONSIDERATION OF YOUR MARCH 7, 1986 CONTRACT OFFER UNTIL AN APPROPRIATE DETERMI- NATION IS MADE ON THE PENDING RELATED ULP CHARGE.6 On the same day, Porcaro sent Respondent a letter set- ting forth the Union's position. The body of the letter states: As we advised you this date, the Union has filed ULP charges with the National Labor Relations Board concerning regressive bargaining tactics used by the Company in our recent series of meetings. The parties initialed a final company offer on Feb- ruary 18, 986, and then on February 21, 1986, a notice was sent that the Employer intended to make a new offer and withdraw the 2/18/86 offer. This date, at a meeting you requested through FMCS, we received a new offer with reduced pro- visions over the previous offer. Specifically, items 2, 10, and 11 constitute either new or reduced propos- als. Likewise you notified us of your intent to im- 6 Porcaro noted during his testimony that the confirmation copy of the telegram erroneously referred to a 1 March, rather than a 10 March rati- fication meeting. plement this offer, which as the Union notified you constituted bad faith 8argaining. Not only has im- passe not been reached, but the Union is under no obligation to vote on proposals that in effect consti- tute bad faith bargaining. Be advised that the earliest possible date the Union can reasonably hold a membership ratifica- tion meeting is Monday, March 10, 1986. At such meeting, the only offer we intend to consider is the previous offer of February 18, 1986, as initialed be- tween the parties and Federal Mediator. No vote on this previous offer was taken pending your Febru- ary 21, 1986, letter and the fact that such offer, unlike the current March 7, 1986, offer, did not con- tain any required date upon which the Union had to act before it was withdrawn and no longer in effect. It is undisputed that Respondent implemented the final offer of 7 March on 10 March 1986. On the same day, the bargaining unit voted to ratify the Company's 30 De- cember 1985 offer as amended on 18 February 1986. Re- spondent was not notified of the results of the 10 March ratification meeting until the results were disclosed during hearing held in the instant case. Analysis and Conclusions The meaning of good-faith bargaining was defined by the court in NLRB v. Reed & Prince Mfg. Co., 7 as fol- lows: The respondent . . . was legally bound to confer and negotiate sincerely with the representatives of its employees. It was required to do so with an open mind and a sincere desire to reach agreement in a spirit of amity and cooperation. The cases set- ting forth Milts obligation are many, and it is well settled that a mere formal pretense at collective bar- gaining with a completely closed mind and without this spirit of cooperation and good faith is not a ful- fillment of this duty. Thus, "The Act not only requires that the parties go through the motions of negotiation, but it also demands that they negotiate in good faith," 8 and the right not to agree or concede, or to refuse a particular proposal or make a concession, may not be utilized as a cloak "to conceal a purposeful strategy to make bargaining futile or fail." Further, the mere fact that a party bargains on certain issues in an attempt to reach overall agreement, while at the same time frustrating agreement on one or more substantial issues, does not suffice to fulfill the re- quirements of good-faith bargaining.18 Although an adamant insistence on a bargaining posi- tion is not of itself a refusal to bargain in good faith, Neon Sign Corp. v. NLRB, 602 F.2d 1203 (5th Cir. 1979), other conduct has been held to be indicative of a lack of 7 118 F.2d 874, 885 (1st Cir. 1941). 8 Steelworkers (Roanoke Iron Works) v. NLRB, 390 F 2d 846, 852 (D.C. Cir. 1967) 9 NLRB v. Herman Sausage Go, 275 F 2d 229, 232 (5th Cir. 1960). 10 King Radio Corp., 172 NLRB 1051, 1068 (1968), enfd. 416 F.2d 569 (10th Cir. 1969), cert denied 397 U.S. 1007 (1970). 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD good faith. Such conduct includes delaying tactics,' 1 un- reasonable bargaining demands," unilateral changes in mandatory subjects of bargaining," efforts to bypass the union," failure to designate an agent with sufficient bar- gaining authority," withdrawal of already agreed-on provisions," and arbitrary scheduling of meetings." Here, the General Counsel contends Respondent's con- duct which reveals it had no real intention of reaching agreement with the Union consists of (1) exploring the possibility of decertification proceedings prior to the commencement of bargaining; (2) reneging on the 30 De- cember offer on 21 February; (3) presenting a less advan- tageous take-it-or-leave-it final offer on 7 March 1986; and, (4) implementing the 7 March offer on 10 March 1986, although the parties were not then at impasse. Respondent contends it did nothing unlawful on 7 or 10 March because it simply reoffered on 7 March what it had offered through its 30 December offer as amended by the language agreed on by the parties on 18 Febru- ary. Although it admits that through the matter set forth in item 10 of its 7 March offer it injected something in the negotiations that had not previously been raised, it claims the subcontracting notice set forth at item 10 means nothing because provisions of the expired con- tract, which were to remain unchanged, gave it the right to unilaterally subcontract unit work. The General Counsel's contention that Respondent reneged on proposals on which there had been tentative agreement is bottomed on a claim that the parties reached tentative agreement on wages when they initiat- ed the 18 February document. The facts recited, supra, cause me to conclude the parties never reached even ten- tative agreement on wages because there was no meeting of the minds on the interpretation to be given to the lan- guage contained in the 18 February document. Noting the Union had made no effort to cause the bargaining unit employees to ratify Respondent's 30 December offer before it was withdrawn, and the fact that the offer, as amended by the 18 February document, was ambiguous, I am unwilling to find Respondent acted unlawfully when it withdrew the offer on 21 February. As I view the record, the main issue in here is whether Respondent violated Section 8(a)(5) by making a take-it- or-leave-it offer on 7 March and implementing its final offer before an impasse in bargaining had been reached. When resolving impasse issues, the Board has consistent- ly followed the guidelines set forth in Taft Broadcasting Co., 163 NLRB 475 (1967), petition for review denied 395 F.2d 622 (D.C. Cir. 1968). There the Board stated (at 478): " NLRB v. Wonder State Mfg. Co, 344 F.2d 210 (8th Cir. 1965), Crane Co., 244 NLRB 103 (1979). 12 NLRB v. Holmes Tuttle Broadway Ford, 465 F 2d 717 (9th Cir 1972). 13 NLRB v Fitzgerald Mills Corp. 133 NLRB 877 (1961), enfd. 313 F.2d 260 (2d Or. 1963), cert. denied 375 U.S. 834 (1963). 14 Cal-Pacific Poultry, 163 NLRB 716 (1967). 15 Billups Western Petroleum Co, 169 NLRB 964 (1968), enfd. 416 F 2d 1333 (5th Or 1969). 16 Valley Oil Co., 210 NLRB 370 (1974). 17 Moore Drop Forging Co., 144 NLRB 165 (1963). Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of the negotiations are all relevant factors to be considered whether an impasse in bargaining existed. The record in this case clearly reveals Respondent made a take-it-or-leave-it final offer on 7 March and in- formed the Union the offer would be implemented in 3 days whether it accepted or rejected it. Thereafter, on 10 March 1986, Respondent implemented its final offer. The immediate effect on bargaining unit employees was that they sustained a 6-percent wage cut. The long range effect was that bargaining unit employees could expect after 10 March 1986 to be subject to any nonwage bene- fits changes unrepresented nonexempt employees experi- enced. The General Counsel contends Respondent violated Section 8(a)(5) by engaging in the above-described con- duct. In his brief, he claims that items 2, 10, and 11 ot the final offer injected new issues, the time afforded the Union for approval or rejection was too brief, and that the final offer was implemented before an impasse in bar- gaining occurred. Respondent defends by claiming the proposals made on 7 March were those which had been on the bargain- ing table since 18 February, and, although it only afford- ed the Union 3 days to accept its proposals before they were to be implemented, the time afforded was sufficient because the Union was attempting to stall the negotia- tions until the production and, maintenance employees voted on concessions under consideration in the Steel- workers negotiations. It contends the parties were at im- passe as the Union's past actions revealed further bar- gaining would be futile. Although the Board has held an employer may be jus- tified in making unilateral changes "[w]hen a union, in response to an employer's diligent and earnest efforts to engage in bargaining, insists on continually avoiding or delaying bargaining,"" such cases are not applicable here because the record fails to reveal the instant Re- spondent was diligently or earnestly seeking to reach agreement with the Union on 7 March 1986. For the reasons set forth below, I conclude that by making its take-it-or-leave-it offer on 7 March and there- after implementing that offer on 10 March 1986, Re- spondent violated Section 8(a)(5) of the Act. Although the record warrants an inference that the Union was aware before 7 March that Respondent wanted unit employees to take a 6-percent wage cut, the record fails to reveal that Respondent had, prior to 7 March, proposed that the Union agree to "me too" treat- ment with respect to all nonwage benefits. During nego- tiations up to that point, Respondent had proposed, and the Union had agreed, to "me too" treatment with re- spect to income protection plan, insurance, holidays, and 18 See M & M Contractors, 262 NLRB 1472 (1982), and AAA Motor Lines, 215 NLRB 793 (1974) MICRODOT, INC. 1023 vacations. Welton had suggested "me too" treatment with respect to pensions, but the Union had refused, with Porcaro stating the plans were different. Although the 1982-1985 contract provided for additional nonwage benefits for unit employees (bereavement and jury duty pay for example), those benefits had not been discussed by the parties. It was in the described context that Respondent pro- posed through item 11 of its 7 March final offer that unit employees "track" unrepresented nonexempt employees on all nonwage benefits. Respondent's counsel claims that item 11 of the 7 March proposal did not inject a new issue in bargaining because the term "general com- pensation" which appears in the 18 February document is sufficiently broad to include nonwage benefits. Con- tinuing, he observes that Porcaro composed the language set forth in the 18 February document and any ambigu- ities should be resolved in Respondent's favor. The diffi- culty with his position is simply the fact that employers and unions utilize the bargaining process to arrive at agreement on the meaning of contract language and here Respondent seeks to deprive the Union of that right with respect to the language used in the 18 February docu- ment. Significantly, the record reveals Welton was fully aware on 7 March that he and Porcaro interpreted the 18 February document differently. In the circumstances described, I find that, by placing item 11 in its 7 March final offer, Respondent injected a new issue in bargaining. By indicating at the time the final offer was made that it was not negotiable, it violat- ed Section 8(a)(5) as alleged. Moreover, by implementing the final offer while refusing to negotiate with respect to nonwage benefits in particular, it implemented at a time when no impasse existed. Such conduct violates Section 8(0(5) of the Act, and I so find. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All office clerical employees, technical employees, including draftsmen, draftsmen trainees, assistant manager of the order department, programmer ana- lyst, secretary to the Vice President of Sales, print- er, mailman, and office janitor, and professional em- ployees, including Industrial Engineer Technicians, Industrial Engineer Trainees, general accountants and plant engineers, located at Respondent's facili- ty, but excluding plant clerical employees, confiden- tial employees, secretary to the Industrial Relations Manager and secretary to the Controller, plant labo- ratory employees, nurse, sales and service represent- atives, mould design engineer and guards and super- visors as defined in the Act, and excluding all other employees. 4. At all times material, the Union has been the exclu- sive representative of all employees within the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union as the exclu- sive representative of all employees in the appropriate unit by unilaterally implementing changes in the terms and conditions of employment on 10 March 1986, at which time no impasse in bargaining existed, the Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be required to cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act, including, on request, to bargain with the Union as the exclusive bargaining representative of unit employ- ees. Having found that Respondent unilaterally reduced the wages of bargaining unit employees without bargaining with the Union, I shall order it to make them whole for any loss of earnings they suffered as a result of its unlaw- ful conduct, with interest to be computed thereon in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).19 Finally, although the General Counsel requests that a visitatorial clause be included in any order issued in this case, I note the Board has declined to include such clauses in cases that do not appear to pose complicated compliance problems. See, for example, Cherokee Heating Co., 278 NLRB 399 (1986). In my view, the Order in this case will pose no significant compliance problems, and provisions set forth in the Order that require Respondent to preserve and make available to the Board described records necessary to analyze the amount of backpay due the unit employees will suffice. Accordingly, the request for a visitatorial clause is denied. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed20 ORDER The Respondent, Valley Mould Divison, Microdot, Inc., Hubbard, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally implementing changes in the terms and conditions of employees in the bargaining unit described above without first engaging in bargaining with Office and Professional Employees International Union, Local 17, AFL-CIO. 9 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 20 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. 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) 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 with the above- named Union as the exclusive representative of all em- ployees in the appropriate unit described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Make whole all bargaining unit employees for any losses they may have suffered as a result of our unilateral changes in terms and conditions of employment, with in- terest. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Hubbard, Ohio facility copies of the at- tached notice marked "Appendix." 21 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that any alleged viola- tion of the Act not found be dismissed. 21 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."