Modern Manufacturing Co., Inc

10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Modern Manufacturing Company, Inc and Upper South Department, International Ladies' Gar- ment Workers' Union, AFL-CIO and Ralynn Rader,' Party in Interest Case 6-CA-17788 December 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 27, 1985, Administrative Law Judge James T Youngblood issued the attached decision The Respondent filed exceptions and a supporting brief, 2 and the General Counsel filed limited cross-exceptions The General Counsel and the Charging Party Union each filed an answering brief to the Respondent's exceptions 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,3 and conclusions, to modify the remedy,4 and to adopt the recommended Order In adopting the judge's conclusion that the Re spondent engaged in bad-faith bargaining, we have applied the principles set forth in Reichhold Chemi- cals, 288 NLRB (1988) We therefore disavow any reliance on the judge's reasoning to the extent that it may suggest that we will scrutinize bargaining proposals to see if they are sufficiently generous, or that we would require some substantial explanation for every concession that an employer declines to make ' This individual whose decertification petition the Board dismissed on September 30 1985 was made a party in interest to this unfair labor practice case limited solely to the receipt of a copy of this decision 2 The Respondent has requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and the positions of the parties a In the fourth to last paragraph of his decision the judge inadvertent ly states that the parties held nine bargaining sessions although the record clearly shows that they met only eight times We find however that correction of this misstatement does not affect our conclusion 4 Although it has generally excepted to the judge s recommended remedy the Respondent has failed to demonstrate that these remedial measures which include inter alia requiring the Respondent to reim burse employee members of the Union s negotiating committee for any earnings they lost while attending negotiating sessions and to meet and confer with the Union more often and for longer periods in the future are inappropriate in the circumstances of this case In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be com puted 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 amend ment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) Additionally the General Counsel has requested a visitatonal clause Under the circumstances of this case we find it unnecessary See Chero kee Marine Terminals 287 NLRB 1080 (1988) We agree, however, that it is reasonable to infer from the totality of the evidence that the Respond- ent had no real intent to reach a collective bargain ing agreement with the Union Here, the Respond ent, as it concedes in its answer,5 refused through out the negotiations to bargain on noneconomic matters unless the Union capitulated on all eco nomic items At the first bargaining session the Respondent's chief negotiator, Fred Holroyd, explained to the Union's negotiating team that the Respondent was in poor economic condition and that the Union should not expect anything that would increase its operating costs During subsequent negotiations over the Union's proposed grievance-arbitration procedure, Holroyd stated that he would not agree to any provision that would allow an arbitrator to provide any backpay remedy Holroyd then told the Union at the final negotiating session that, di- rectly or indirectly, everything is a cost item As the judge found, during these negotiations the Respondent adamantly insisted on retaining abso- lute discretion and control over every important economic term of employment By demanding that the Union accede to its position on economic sub- jects before there could be any negotiations on other issues, while at the same time characterizing every matter as economic, the Respondent has ob- structed the process of meaningful contract negoti ations, because progress in negotiations on certain economic or noneconomic subjects often induces parties to yield ground on other disputed subjects We therefore conclude that the Respondent's ob structionist tactics in this case prevented the Union from exploring the Respondent's position on non- economic matters and thereby substantially re- duced the possibility of reaching an agreement on a full contract 6 In adopting the judge's finding that the Respond- ent has engaged in surface bargaining, we also stress, as detailed by the judge, that during bargain ing the Respondent repeatedly demanded the right to act unilaterally on virtually every subject that the parties negotiated For example, the Respond ent rejected the Union's contract proposal provid ing that the Respondent would not enter into any individual contracts with the unit employees with- out the Union's prior approval When the Union stated in response that it considered this issue to be The Respondent s answer states in pertinent part Since the Union would not move to a point where it would agree to no additional cost to Respondent who was in a failing economy Re spondent never reached a point where it would agree to other non economic sessions c See Cal Pacific Furniture Mfg Co 228 NLRB 1337 1340-1342 (1977) 292 NLRB No 3 MODERN MFG CO a major problem, the Respondent agreed that it would not enter into a contract with any employ- ees that provided for less than the contract terms The Respondent insisted on reserving the right, however, to give out bonuses or create an incen- tive program if it chose 7 Clearly, the Respondent's insistence that it retain the ability to deal directly with the unit employees strikes at the very heart of the Union's representative function to bargain col lectively on behalf of the unit employees It is also clear that during the parties' discussions on the subject of grievance-arbitration the Re spondent sought to effectively destroy the Union's capacity for resolN ing disputes on the unit employ- ees' benefits Thus, the Respondent adamantly ad- hered to its position that no steward could be present at the first step unless the grieving employ ee requested such representation After the Union tentatively agreed that employees could adjust their own grievances, the Respondent refused the Union's demand for the right to approve any settle ment reached The Respondent agreed only that it would not enter into any settlement that was incon- sistent with the collective-bargaining agreement The Respondent also sought to exclude almost every matter from the arbitration process Based in particular on the Respondent's bargaining tactics on this subject, coupled with its insistence on a broad no-strike clause and on retaining the right to deal directly with the unit employees, we find that the Respondent's conduct during negotiations was totally at odds with a desire to achieve a collec- tive-bargaining agreement and essentially placed the Union in a position where simple reliance on the rights arising from its status as the majority representative would be more advantageous than signing any contract the Respondent was prepared to offer See NLRB v A 1 King Size Sandwiches 732 F 2d 872, 877 (11th Cir 1984), cert denied 469 US 1035 (1984) Regarding the Respondent's argument that it re peatedly made its financial records available to the Union and that the Union failed to inspect them, we disagree with the Respondent's implication that the Respondent's conduct at the bargaining table is somehow excused because the Union had access to the Respondent's financial records In this regard, we also note that the Union's position on this sub ject was that the Respondent's financial records were not ripe for review because the parties never seriously discussed economic matters Yet, it is abundantly clear from our discussion above that the Union's willingness to review these records The Respondents insistence on retaining the right to give bonuses and to institute a piece rate system undermines its claims that it was unable to give the Union any economic improvements ii was immaterial in light of the Respondent's insist ence that, in any event, the Union capitulate to its demands on economic subjects While we in no way suggest that the Respondent was necessarily obligated to offer the employees improvements in wages and fringe benefits, we believe that the Re- spondent was obligated to do something more than simply protest throughout the negotiations that it could not agree on any proposals that would in crease the cost of its operations, while defining vir tually everything as a cost item 8 Our finding of bad faith bargaining is also but- tressed by the Respondent's critical and repeated references at the negotiating sessions to the Re spondent's backpay obligations, which arose from an earlier unfair labor practice case in which the Board found that the Respondent had engaged in conduct sufficiently egregious to warrant the impo sition of a Gissel bargaining order 9 Moreover, during that earlier organizing campaign, the Re- spondent, inter alia, had threatened its employees with less work, layoffs, plant closure, and econom is reprisals if they selected the Union as their bar gaining representative We find especially relevant here the statements at that time by the Respond ent's vice president to employees that if they se lected the Union as their bargaining representative, the Respondent "would just have to kick the Union out" for economic reasons, and that the Re spondent would negotiate with the Union only on the Respondent's own terms Although the Re spondent claims that this conduct is immaterial now because it occurred years ago, we agree with the judge that these statements shed light on the Respondent's motive, and that by its conduct throughout the negotiations the Respondent imple mented its earlier threat that it had no intention of bargaining in good faith with the Union In sum, although the Respondent's negotiators appeared regularly at the bargaining table and the negotiations resulted in movement and agreement on some subjects, we are persuaded by the totality of the record evidence that the Respondent was not negotiating in good faith with a view to trying to reach a collective-bargaining agreement with the Union 10 8 See Excelsior Pet Products 276 NLRB 759 761-762 (1985) and North Coast Cleaning Service 272 NLRB 1343 at fn 14 (1984) 8 Modern Mfg Co 261 NLRB 534 (1982) enfd mem 723 F 2d 902 (4th Cir 1983) 10 Member Johansen who adheres to the earlier decision in Reichhold Chemicals 277 NLRB 639 (1985) and who dissented when it was vacat ed at 288 NLRB 69 agrees with his colleagues that the Respondents conduct here was unlawful 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Modern Manufacturing Company, Inc, Buckhannon, West Virginia, its officers, agents, successors, and as- signs, shall take the action set forth in the Order Michael Poprik Esq for the General Counsel Fred F Holroyd Esq and Brian 0 Yost Esq, of Charles ton West Virginia for the Respondent DECISION STATEMENT OF THE CASE JAMES T YOUNGBLOOD Administrative Law Judge This matter was tried before me on 30 October 1985 in Buckhannon, West Virginia The charge was filed by Upper South Department, International Ladies Garment Workers Union, AFL-CIO (the Union) on 26 November 1984 and the complaint issued on 31 December 1984 The complaint alleges that Modern Manufacturing Com pany, Inc (Modern or Respondent), by certain acts and conduct, has failed and refused to bargain in good faith with the Union as the exclusive bargaining representative of Respondents employees in violation of Section 8(a)(1) and (5) of the Act The Respondent denies the commis sion of any unfair labor practices On the entire record including my observations of the witnesses and their de meanor while testifying, and after due consideration of the briefs filed by the General Counsel and the Respond ent, I make the following2 FINDINGS OF FACT I JURISDICTION The Respondent, a West Virginia corporation with its sole facility location in Buckhannon West Virginia, is engaged in the manufacture and nonretail sale of Women s clothing Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act 1 The General Counsel filed a motion to correct the transcript There being no objections and the corrections appear appropriate the motion is granted 2 The facts found here are a compilation of the credited testimony the exhibits and stipulations of fact viewed in light of logical consistency and inherent probability Although these findings may not contain or refer to all the evidence all has been weighted and considered To the extent that any testimony or other evidence not mentioned in this deci sion may appear to contradict my findings of fact I have not disregarded that evidence but have rejected it as incredible lacking in probative weight surplusage or irrelevant Credibility resolutions have been made on the basis of whole record including the inherent probabilities of the testimony and the demeanor of the witnesses Where it may be required I will set forth specific credibility findings III THE ALLEGED UNFAIR LABOR PRACTICES On 22 November 1983 the United States Court of Ap peals for the Fourth Circuit enforced a bargaining order issued by the National Labor Relations Board on 30 April 1982 261 NLRB 534, in which the Board ordered that Respondent Modern recognize and on request bar gain collectively with the Union as the exclusive repre sentative of the employees in the following appropriate bargaining unit at 536 All full time and regular part time production and maintenance employees employed by the Employer at its Buckhannon, West Virginia, facility excluding office clerical employees sales employees and guards professional employees and supervisors as defined in the Act Additionally, the Board found that during the course of the Union s organizing efforts, Respondent violated Section 8(a)(1) of the Act by threatening employes with less work and layoffs if they selected the Union as their bargaining representative, threatening employees with plant closure if they selected the Union as their bargain ing representative, threatening employees with economic reprisal and/or telling employees that it would be futile for them to select the Union as their bargaining repre sentative threatening employees by telling them that Re spondent had terminated an employee because of her union activities, telling employees not to sign union au thorization cards coercively interrogating employees about their union activities membership, and sympathies and the union activities membership and sympathies of other employees, soliciting employees grievances in order to dissuade them from selecting the Union as their bargaining representative, asking an employee to tell other employees not to select the Union as their bargain ing representative and telling an employee that Re spondent was against the Union and would do anything to stop the Union from becoming the employees bar gaining representative In addition to these violations of Section 8(a)(1) Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily terminating the em ployment of employees Carol Waybright John Ball David Pringle and Pearl Irene Smith and by refusing to rehire employee Deborah Lee a Also prior to the election which was set aside because of Respondents conduct that Board found that Re spondent Vice President Starkey had informed employ ees that if the employees selected the Union as their ex clusive collective bargaining representative, Respondent would just have to kick the union out because they couldn t afford it and had further informed employees that Starkey didn t have to give anything he did not want to give that the union could not get us anything that he didn t want to give us because he didn t have to give anything that he didn t want to give 3 The Respondent was ordered to cease and desist from further viola tions of the Act to reinstate the terminated employees and to pay them backpay MODERN MFG CO 13 and he wouldn t give anything that he didn t have to give And he explained [to an employee] that he would have to negotiate but that he didn t have to give nothing that he didn t have to give 4 It was in this context and with this background, that the Union in early January 1984 contacted the Respond ent requesting bargaining negotiations By letter dated 16 January 1984, Fred F Holroyd, Respondents attorney, advised the union attorneys that he would be handling negotiations for the Respondent and that he was in re ceipt of the Union s 13 January 1984 letter and suggested as a format that the Union first provide the Respondent with a complete set of proposals so that they would be in a position to be better prepared for negotiations Hol royd advised that as soon as he had received these pro posals and had an opportunity to study them he would contact the Union to set some meeting dates By letter dated 23 January 1984 Bernard W Rubenstein an attor ney for the Union, advised Holroyd that a set of propos als would be prepared and sent as soon as possible and further informed Holroyd that after he received the pro posals, the Union would like a prompt meeting On 3 April 1984, Bernard W Rubenstein, on behalf of the Union, forwarded a set of proposals for a collective bar gaining ageement between the Respondent and the Union and , in the accompanying letter stated [W]e have not at this time given you our wage proposals on the amounts needed for the benefits plans When we meet, we will discuss these with you ' The letter re quested a prompt meeting By letter dated 29 May 1984 the Union informed Hol royd that in connection with the negotiations to be held on 4 and 5 June 1984 five named individual employees constituted the Unions negotiating committee and re quested that they be permitted to be excused from work so that they could attend the negotiation sessions By letter dated 31 May 1984 Holroyd advised the Union that the negotiations are set for 4 June 1984 and that he did not anticipate that it would go for more than 1 day He advised however, that they would see how it goes The first bargaining session was held on 4 June 1984 attended by Holroyd on behalf of the Respondent and by Rubenstein Jackson Moore , Dortha Campbell Bonnie Marsh Beth Ric Carol Waybright and Verna Karick hoff for the Union At the first meeting , the Respondents attorney ex plained to the Union s attorney Rubenstein and the other members of the Union s negotiating committee that the Respondent was in a poor economic condition and that the Union should not expect anything in the way of additional costs Rubenstein indicated that they were sure something could be worked out Holroyd testa feed that at practically every meeting thereafter he re ported to the union negotiating team that the Company was in a bad financial condition and that it would be willing to negotiate virtually anything in the contract that did not require additional costs From the outset of the negotiations it is very clear that Respondent advised 4 See G C Exh 2 at 22-23 the Union of its poor economic condition and informed the Union that its books were available for the Union s negotiating committee to review and study and that the Company was fully prepared to make the Company s ac countant available to the negotiating team for the exams nation of the records including its tax returns Apparently, at the initial bargaining session Respond ent s attorney gave its oral counterproposals on the pro posals that had been submitted by the Union By letter dated 5 June 1984 from Company Attorney Holroyd to Rubenstein the Respondent submitted its written post tion on the Unions proposed contract In the Union s contract proposal there were approximately 35 propos als including the proposal on the term of the contract In its counterproposals the Respondent advised that it did not agree with 25 of these proposals and, in most in stances, submitted a counterproposal to these provisions with which it did not agree In some instance , Respond ent merely indicated that it did not agree to the Union s proposal The next bargaining session was held on 11 July 1984 at the Sheraton Hotel in Clarksburg West Virginia The meeting began at 11 am All the meeting were held at the Sheraton Hotel in Clarksburg , West Virginia Hol royd represented the Respondent Victoria Hedian an at torney and chief negotiator for the Union throughout the remainder of the negotiations and Jackson Moore and the remaining members of the union negotiating commit tee were present There is virtually no dispute as to the facts concerning the negotiations Victoria Hedian testa feed that this meeting began with the Union asking for a response from Modern Holroyd told the Union that Modern was loosing a lot of money and did not want any additional costs The Union was informed that Re spondent s books were available for inspection Hedian stated the Union did not then or at any other time exer case this option of looking at Respondents books They discussed the grievance procedure in light of the Re spondent s proposal that the union steward not be present at the first stop of the grievance Holroyd stated there was no need for the steward to be present if the employee and the supervisor could work it out between themselves Holroyd said case law does not give the Union the right to have the steward present and the Union contended that they represented the employees and had a right to be present at any confrontation Hol royd stated that he would agree for the presence of the steward if the employee specifically requested that a steward be present but that he wanted to have the con tract provide that it was not necessary that the steward be there There was some discussion about how the em ployees would learn of what the contract procedure en tailed There was a discussion of cost with regard to the gnevance and arbitration procedure in that the Union had indicated that this did not cost money Holroyd re sponded that backpay did cost money and that the griev ance and arbitration proceedings could require the Em ployer to pay backpay Holroyd indicated that the Com pany had just paid $30,000 in backpay Holroyd indicat ed that he wanted a provision that the arbitrator could not give a backpay remedy, and could not award any 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pay for hours other than those the employee actually worked There was no agreement in this area Article XVI, of the Unions proposal provided that the Employer shall not enter into any individual con tracts with any of its workers without prior union ap proval and no contractor shall subcontract its work to any other shop Modern rejected this clause, and specifi cally indicated in its counterproposal that the Employer does not agree not to enter into individual contracts with its employees The Union stated that it was a real prob lem having the Respondent entering into private con tracts with the employees Respondent agreed that it would not enter into a contract with any employee that provided less than the contract terms, but that the Em ployer wanted the right to give out bonuses or create an incentive program as it chose, without having the Union involved The Union took the position that it wanted ap proval of any kind of extra contractual agreement be cause it was the bargaining agent for wages hours and working conditions Modern did not object to the Union being involved but it would not give the Union the right to approve or disapprove its private agreements with the employees In its proposal, the Union sought a union security pro vision and a dues checkoff clause In its counterproposal, the Respondent did not agree that employees must join the Union or be fired and did not agree to check off dues from employees for the Union, and proposed that the Union collect its own dues Hedian informed the Re spondent that a union security provision did not cost the Respondent any money Holroyd replied that the em ployees will want to be paid more money in order to pay their dues Holroyd stated that the employees would not stand still for a contract that did not give them what it cost to be in the Union According to Holroyd s notes, any concession on union security and dues checkoff would be something that he would expect to exchange to get a major concession from the Union At this point in the negotiations the Union orally made its economic wage proposal to raise the employee wages from the minimum wage of $3 35 an hour over a 3 year period to $5 which would be 65 cents an hour in the first year 50 cents in the second year and 50 cents in the third year The Union proposed eight paid holidays and a 1 week paid vacation after 6 months of employ ment and 2 weeks vacation after 1 year The Union pro posed a health benefit that would cost 5 5 percent of the gross payroll of the Respondent and 1 375 percent to the health service plan There was no agreement on any of these proposals Respondent again making it clear that it could not increase cost due to its economic condition and at this point, made no counterproposals The parties then discussed trial periods or probation ary periods The Union had proposed 30 days and the Employer had proposed a 6 month period The Union proposed 30 working days or 240 hours with a provision for extension by agreement After discussion it was agreed that the Company could extend the period pro vided it notified the Union of the extension Article IX of the Union s proposal prohibited persons outside the bargaining unit from performing any work covered by the contract, and provided that if during a layoff the work of any laid off employee is performed by any other person or supervising employee outside the bargaining unit, the laid off employee shall be reimbursed for such work by the Employer In its counterproposals Respondent did not agree to the Union s distribution of work and proposed that the Respondent have complete control over the assignment of work and the movement of its employees and that there should be no limitation on the amount of bargaining unit work nonbargaining unit employees may perform During the bargaining ses sion, the Union indicated to Modern that it could not have supervisors and nonbargaining unit personnel per forming bargaining unit work The Respondent indicated that there were times when they needed a supervisor or someone to fill in if the employees were not available The Union indicated that perhaps what was needed was language to cover specific cases, like emergencies in which case it would be permitted, but indicated that the proposal by Modern was too broad The parties then discussed the number of stewards to be used in the shop to which Modern had submitted a counterproposal limiting the number of stewards in the shop to one Respondent indicated that it did not really care about the number of stewards, but it did not want to be talking to stewards every 20 minutes It was agreed that the Union would write up some more detailed Ian guage The Union asked for some form of counterproposal on holidays, as the Respondent had indicated no holidays and would reserve the right to put into effect any holi day it wanted The Respondent stated that there was no money for holidays and it did not want it in the contract but if the Company were able at a later time they would do what they could The parties discussed leave of absences and the Re spondent indicated that it would not object to having it in the contract allowing the Employer to grant leave of absences at its option The parties talked about layoff and recall The Union s proposal, as submitted to modern was that laid off em ployees should he recalled before new employees are hired The Respondent had counterproposed that the Employer retain absolute discretion on layoff and recall of employees During the discussion the Union indicated that they needed some system not necessarily theirs but some fair system where the Employer was obligated to recall laid off employees rather than hiring new person nel Holroyd stated the Ccompany wanted to be effi cient and that they would not go out and hire new per sons rather than recall a good worker, but Modern wanted the employees to know that they run the risk of being laid off if they did not produce and that they might not be recalled The Employer continued to main tam that it wanted total discretion in laying off and re calling laid off employees The discussions turned to an incentive program, and Modern wanted total discretion without the Union s ap proval The Union indicated that it was the bargaining representative and they wanted to have some say in this regard that they were interested in the Company making a profit and that they did not want the plant to close as MODERN MFG CO 15 they wanted jobs for their members The Respondent re marked that they were talking about fairness and nondis crimination which sounded nice, but incentives inherent ly discriminated against the less efficient He said they needed a method to get the Company into the black and it would not stay in business if it were in the red There was no agreement The Employer wanted sole control over this and the Union needed language that would re quire its consent , which would not be unreasonably with held if the employer wanted to put in some kind of a piece rate system This meeting ended around 2 p in on 11 July 1984 The next bargaining session was scheduled f o r 11 a m , 26 July 1984 The next bargaining session commenced at approxi mately 11 20 a m , 26 July performed by the employees, and this commenced with Holroyd s presenting a letter from Shakers Sportswear a customer of Respondent which indicated that Modern was producing inferior gar ments and that the customer was reluctant to send addi tional work to the Respondent until it improved its qual ity The parties discussed this problem briefly but there was no resolution This lead into a discussion of layoff and recall-the Union wanting the more senior employee to be retained during a layoff-the Employer, on the other hand, said it should not have to lay off a junior person who in fact could perform a job better At this point the Union again indicated that layoff and recall did not have to be done according to their system, so long as it was done in a fair system without favoritism, and if Holroyd had anything to propose in this regard they would like to see it and would consider it The Union indicated that the Employer, acting at its discre tion, was not fair There was a discussion as to who should be laid off in the event a particular operation ran out of work According to Hedian it was the Union s position that whoever was on the operation would be the one who was laid off There was a discussion of qualifi cation of employees to perform work, and who would decide the qualifications Holroyd maintained that it was up to the Company to decide if an employee was quali fled based on skill ability and dependability , that it should be able to make the decision on layoff on these factors and that this would not be subject to arbitration According to Hedian they proposed that the Employ er be permitted to do whatever it wanted to do for a short term layoff less than a week The Company had in mind, however, a short layoff of 30 days duration and if the layoff was of a longer term it would follow some form of seniority This was discussed at least as to qual ity and quantity of work in some depth but was not re solved during this meeting The parties then turned to profitability of the Employ er and the Union advised that it had an engineering firm who would help the Respondent lay out the plant and improve quality by analyzing their production process and to determine a more efficient manner so that time and money could be saved Apparently this was condi tioned obviously on the execution of a collective bar gaining agreement The parties also discussed bumping rights relating to layoff and recall as Holroyd raised a question about an employee on long term or indefinite layoff having bump ing rights based on seniority The Union stated that one way of wording the qualifications could be ability to per form without the need of further instructions or training Holroyd responded then that there would be an argu ment because the employee will say that he definitely can do any job and the Respondent wanted to know who made the decision the employee the Company or an arbitrator Holroyd also mentioned that in this regard dependability should also be a factor That is the em ployee must not only have to be senior, but be qualified and be dependable There was quite a discussion with this problem and it was the Union s position that what ever decision was made the decision would be subject to the grievance and arbitration procedure of the contract The parties also discussed the problem of bidding and bumping on vacancies that occur during the normal op erations of the plant Holroyd questioned this by saying that do you mean that when a contract is signed that all of the jobs in the plant would go up for grabs as part of the bumping language, to which the Union responded in the negative Respondent wanted to pick whomever it wanted to fill a vacancy rather than have bidding on the job This lead to further discussion on the recall of laid off employees before hiring new people that necessarily lead into the question of qualifications Jackson Moore said that the Company will decide that , and if we dis agree we can grieve the decision Holroyd objected saying the Respondent wanted the right to lay off based on skill ability, qualifications and dependability The parties could not get together on these issues and Hol royd advised that laying off employees is sometimes a way of dealing with the problem of bad employees He said sometimes company managers do not want to face problems head on and they solve this by just laying them off and never recalling them Therefore Respond ent wanted the absolute right to determine the skill and abilities of an employee The Union wanted the right to arbitrate these issues The Company did not want to agree to that The negotiations lead to a discussion regarding bar gaining unit work being performed by supervisors or nonbargaining unit employees and Holroyd stated that the Employers position was that this was an operation where everyone pitches in and they did not want to be in a position where Modern could not do that The Union questioned this pitching in with supervisors and wanted to know if this would be all the time or just in emergencies Holroyd responded that they were not agreeable to putting limitations on the right of supervi sors or other nonbargaining unit persons doing bargain ing unit work At this session the Union proposed alternate language on stewards which provided for 1 steward for each 20 employees or 1 per department One to be designated as chairperson or chief steward Grievances shall be pre sented to the company manager in step two by the chair person or chief steward, except that in her absence the steward may present grievances to the company manag er The chairlady will be compensated by the Employer for their time lost during working hours in the process of adjusting grievances The parties will make all reasonable 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD efforts to settle a grievance as soon as possible and keep such lost time to a minimum Holroyd indicated that he did not care how many stewards they had but he only wanted to deal with one at a time, and he would look at the new proposal He stated he had no problems with the four step grievance procedure but there had to be a limitation on the arbitrators authority He said they would also have to resolve the question of whether they would get the arbitrator from Federal Mediation and Conciliation Service or the American Arbitration Asso ciation The Union then brought up the health benefits that they had proposed, that would cost 5 5 percent of Mo dern s total monthly gross payroll, and that they wanted to know if Holroyd had discussed this with the owners of the Company Holroyd responded that this was a money item the books were open Modern was losing money, and they did not see a realistic possibility of eco nomic improvements At this point Jackson Moore stated that they did not expect the Company to take one of the options yet but looking at it it is good minimum coverage Holroyd responded that there is no reason to question that It s just the dollars Hedian then talked about writing up some tight ]an guage for the next meeting concerning the grievance procedure agreed to so far Then there was a discussion regarding the subject of merit increases Jackson Moore explained that when he had worked with the UAW they had a list of factors for granting merit increases He said the Union could accept merit increases being given if there were some understandable criteria some list of spe cific things on which the increase was based He said those employees that did not get a merit increase could grieve and have the opportunity to prove that they too met the qualifications Holroyd responded by stating, Well then it s not a right to give the merit increases It becomes a requirement Holroyd said the Respondent wanted to set the criteria and decide who gets a merit increase, and it would not agree to let employees who do not get merit increases to arbitrate, because that would remove the incentive of merit increase Holroyd indicat ed that if the Respondent was going to give away any money above the contract they wanted absolute discre tion This was the end of that meeting This meeting began at 11 a in and recessed at 1 45 p m The parties resumed negotiations at 2 10 p in , but I cannot determine when this meeting ultimately ended that day The next meeting was scheduled for 14 August 1984 On 14 August 1984 the parties met again at the Clarksburg Sheraton at 10 am The Union presented some additional written proposals in accordance with the parties previous discussions on these items 5 The parties then took up the Union s alternate Ian guage on stewards Respondent was willing to agree to the Union s language provided that it was not obligated to pay for time lost while the stewards were discussing grievances Holroyd stated that if the stewards were being paid by Modern there would be no incentive to keep the meeting short The parties also agreed with the 5 These proposals are G C Exhs 17(a)-(e) Employers proposal that the Federal Mediation and Conciliation Service would provide the arbitrators The parties further discussed the grievance procedure as proposed on this date Modern objected to certain Ian guage and proposed that arbitration be limited to the agreement thus, the four corners of the contract The parties agreed on this and agreed that the employee would take up the complaint in its first step to his or her supervisor, and that the employee had a right to have the steward present on request The parties had dis cussed but it does not appear that they agreed on, the time limitations in the grievance procedure The parties then drifted into a discussion of the trial procedure or probationary period In its new proposals, the Union proposed that new workers be given a 30 day trial period which may be extended by an additional 30 days at the option of the Employer The Union proposed that the Employer notify the Union of the extension within 5 days Holroyd indicated that originally the Union had asked for 6 months and that he did not think 60 days was long enough He suggested an initial trial period of 60 days with an extension of 60 days The Union told him that he had agreed at the 11 July meet ing that 30 days would be satisfactory provided the Em ployer could at its option extend the 30 days with noti fication to the Union Holroyd checked his notes and in dicated that that was correct and that he had agreed to that He then asked why they had put in the language about the 5 days notification by the Employer to the Union He stated that he would agree to notify the em ployee in writing before the end of the 30 day period that the period was being extended and that a copy would be sent to the Union, but that he did not want the extension invalidated if the copy was lost The Union stated that this would be okay The parties then moved to job posting and job bid ding The Union had proposed revised language on job posting and job bidding at this session The Employer re jected this language stating that it was reserving the right to select the best person it sees fit Holroyd also stated that on layoff and recall skill ability, and depend ability will be controlling and if these things are equal in the exclusive opinion of the Employer then seniority will prevail This will apply to both short and long term layoffs and that the Employer wanted to get the best possible people to do the job The Union could not grieve the Employers judgment At this point in the ne gotiations the Union wanted a break and the parties took a break at 11 10 a in Following the break the Union proposed that layoffs of over I week be by seniority providing the employees remaining can do the work without the need of further training at an acceptable level of quantity and quality In layoffs of 1 week or less the Employer could do what ever it wanted The Union informed Holroyd that if he agreed to this language it would withdraw its proposal on bidding and bumping Holroyd wanted to know who made the determination of acceptable level and did the Union want to arbitrate this The Union indicated that the Employer could set the acceptable level at whatever it wanted provided it would be applied to everybody MODERN MFG CO equally Holroyd then asked if employees were not ac ceptable could they be terminated and the Union said no Holroyd said Well this isn t an average this is worse This is the lower end Holroyd indicated that he would look at this proposal and perhaps there might be an area where they could operate that the Company wanted to keep its best operators Jackson Moore stated We un derstand its a give and take and that the Union would drop its proposal on bidding if they could get this article straightened out The parties moved to union recognition and Holroyd said that the description of the unit should be the same as the Board s certification The Employer would not accept language to the effect that it would not discour age membership in the Union The parties then discussed the fair employment prac tices and apparently there was an agreement on this arti cle At 12 30, this session terminated because Holroyd had another appointment, and a new date for future ne gotiations could not be determined at that time because Holroyd had forgotten his appointment calendar On 15 August 1984, Holroyd wrote Vivian Hedian ad vising that the Respondent was having a considerable problem with the large number of personnel off the pro duction line who were engaging in the negotiations He requested that the employee committee be cut to two people rather than five or, if they could start negotia tions either before or after work or on the weekends On 21 August 1984, Hedian responded advising that under no circumstances would they consider reducing the em ployee committee from five to two She indicated that she found it difficult to believe tht the absence of five people for 1 day every 2 to 3 weeks created a serious problem for the Company, particularly as the employees had advised her that they are frequently laid off in the same week as the negotiation sessions and must call into the plant to determine whether there would be work for them the next day She also pointed out that the Compa ny was not paying for their lost time In an effort to ac comodate Modern she suggested that they start the next meetings at 2 p in, permitting the employees to work half a day before the meeting She indicated that she had talked to Holroyd s assistant about a new meeting and asked for a discussion on the next meeting On 31 August 1984 Hedian wrote Holroyd advising that she had talked with his office and found that he was available for the afternoon of 11 September and she was advising that the Union s negotiating committee would meet with him on Tuesday 11 September 1984 at 2 o'clock at the Clarksburg Sheraton Because of a sched uled hearing of a proceeding before the Board the 11 September meeting was canceled The backpay proceed ing was not held on 13 September 1984 because the matter was settled prior to that hearing Hedian called Holroyd after learning that the backpay proceeding was settled and attempted to retain the meeting date of 11 September Holroyd could not meet on that date and a meeting was arranged for 27 September 1984 17 On 27 September 1984, the parties held their next bar gaining session and the Company presented the Union with several proposals 6 As to layoffs, Modern proposed that a layoff of 7 days or less would be made without regard to seniority or job assignment Layoffs of 8 days or more will be in inverse order of seniority provided the remaining employees had the skill ability and dependability to do the job in the exclusive opinion of the discussion some of it very heated, on this article and there was no agreement The parties then discussed the grievance procedure Holroyd stated that the Company proposed there would be no limitation on claims for wages, that employees could get pay that they earned so that grievances concerning money could be heard even outside the regular time limits, but the arbitrator would have no authority to award back wages for work not performed Thus in a disciplinary proceeding there could be no backpay awarded if the employee were suspended or discharged, and that action later was found to be unjust or unlawful The Union raised the possibility that if there was no backpay remedy that the arbitrator could order the Em ployer would have no interest in expediting these kinds of cases because it would not cost anything to stall it for ever Holroyd commented That s one of the evils of the program and stated the Union had the courts and the Labor Board to enforce the Company s obligations to arbitrate The parties then discussed some modifications to expedite the grievance procedures and it was pro posed that additional language be made but it does not appear that any other language was ever proposed The parties caucused for a few minutes and when they returned they took up the Union s proposal on access to the shop The Union had proposed that it would have access to the shop and access to the Employers books and records during working hours Holroyd said the Re spondent wanted some advance notice when the union representatives were coming and not just when they showed up at the door and wanted the union representa tives to comply with safety regulations while in the shop, and wanted the Union to agree that the access would not interfere with work The Union insisted that it be able to meet with the employees to handle their grievances Hol royd said to meet during breaktime and lunchtime There was considerable discussion on this point and there was obvious differences of opinion on access to the plant The Union then brought up dues checkoff and Hol royd again stated that this was his trading article There was no further discussion of this item Jackson Moore then brought up the subject of the rec ognition clause and Holroyd stated that they had no problem with the Board s description of the unit, what ever it was Hedian stated that they did not again at tempt to discuss the ban on discouragement of union membership that was in their proposal She stated that they did not bring it up again because Holroyd had re jected it, so it remained that way Jackson Moore then asked to take up the term of the contract and asked if a 3 year term was all right Hol 6 See G C Exh 22 for these written proposals 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD royd indicated yes that nobody wanted to do this more often The parties then turned to the subject of maternity leave The Union asked about employees on maternity leave having the same protection as employees who were sick Holroyd said they could have the same medi cal leave as for anything else if they had doctor s state ments as to the dates they left and the dates they re turned The parties then turned to jury duty and Hol royd was reminded by the Union that he had earlier indi cated that they did not want to pay the difference be tween what the employees got to serve as jurors and what the normal wages would have been Holroyd indi cated that that was right , that they did not want to pay any difference The Union then asked if the employees could have time off without pay for jury duty and would they be entitled to their regular job back when their jury duty ended Holroyd indicated that that was only fair, however, he had not discussed it with the owners and stated that he believed the law required only that they be reemployed , not necessarily reemployed at the same job The parties turned to bereavement pay, but Holroyd in dicated that this was an economic item as the Union had asked for 3 days of paid funeral leave and indicated that if they wanted money it is not there The parties then turned to discussion of overtime and the Company remained adamant , that there would be no daily overtime and it would only pay for work in excess of 40 hours a week The parties talked about production and Holroyd said that the Company had no control over its own schedules that sometimes it had to really push one day and have no work the next day He said the price quote that the Company was giving to its custom ers was so close that if it had to pay overtime it would loose money The Union asked what justification they could have for working some employees 10 hours a day while others were laid off and Holroyd responded that it was cheaper to work 10 people 40 hours than work 20 people 20 hours in a given week He explained that the reason was that it takes time to get employees working up to speed The Union then truned to its proposal concerning pay for time when not working in the plant There are times when the electricity is shut off in the plant and at other times for similar reasons the employees are not working, and during that time they are not paid The Union had proposed that the employees be paid for this waiting time The Union had also proposed that the Employer would not keep the employees in the shop if there was no work for them, but would send them home Holroyd said that he did not have a problem with paying them while they were kept in the plant The Union had also requested a half day guarantee if employees were called into work and it turned out there was no work Holroyd stated that if they were required to stay in the plant they would be paid The Union again asked about employees being called in when there is no work and asked Hol royd if he was saying that the Company would not pay them He responded , That s part of the economics Let s defer that The employees should be paid for their work The parties then turned to the article dealing with those persons designated to be agents of the Union There was quite a discussion on this proposal , particular ly with regard to shop stewards and other employees for whom the Union did not want to be responsible Hol royd said these people were no different from his fore men who were uneducated in labor law , and the Re spondent had been taken for $70 ,000 because they did not know what they were doing He suggested that they just leave this out of the contract entirely The parties then turned to leaves of absence and after some discus sion there being no agreement Holroyd indicated that he would take another look at the leaves of absence problem At this point , the meeting terminated There is no indication of the time The next meeting was sched uled for 18 October 1984 On 18 October 1984, the meeting began around 2 p in and the Union presented a revised , typed proposal enti tled Grievance Procedure 7 Later in the meeting the Union presented another revised proposal entitled Right to Leave Shop-Pay for Waiting Time-Call in Pay 8 Hedian testified that she started off by giving Holroyd a copy of the new revised grievance proposal , which she understood covered what they had worked out in this area Hedian mentioned there was still some issues con cerning the grievance procedure such as the question of backpay or whether there could ever be a backpay remedy Additionally the Union advised that no employ ee would have the right individually to compel a case to be taken to arbitration This also had to be put in the clause Holroyd indicated that he had no objection to that portion prohibiting an employee from forcing arbi tration or to bind the Union on settlement of grievances but he said he did not know if he could go further and agreed that they could not adjust the grievance on their own The parties spent a great deal of time discussing the grievance arbitration clause but left it indicating that they would look into the legal aspects of the proposal The Union stated they were spending an awful lot of time on a few issues and they wanted some movement and they wanted to speed things along Holroyd re sponded by saying well move and Hedian then went through a list of several things on which they were modifying their proposals She stated that they dropped their eight holidays to four paid holidays and two unpaid They proposed dropping vacation from 1 week after 6 months to 1 week after a year and from 2 weeks after a year to 2 weeks after 2 years Holroyd asked what kind of year they were talking about and the Union responded from the date of hire He asked a question about employees who were not working or who were laid off The Union responded by saying that would con sider a minimum number of hours worked as a cutoff for eligibility and they would prorate the share of the vaca tion pay below a certain point The Union made a com ment that it was making some movement and was trying to show its good faith and hoped the Employer would do the same She stated that the Union dropped its wage See G C Exh 23(a) 8 See G C Exh 23(b) MODERN MFG CO 19 proposal from 65, 50 and 50 cents in 3 years to 45, 40, and 40 cents She mentioned that the 5 5 percent on health and welfare was already sliced to the bone Jack son Moore then stated that he had checked other con tractors who had worked for the same company that supplied work to Modern and that they had some insur ance, some days off, some vacation and more money Hedian said that she went through the contract and proposed dropping the first sentence in article I relating to the agreement being binding on successors , and the second sentence that dealt with the Employers continu ing liability in the event of sale She repeated that they needed the union security clause and checkoff She then skipped to article VII that contained 13 numbered indi vidual paragraphs Hedian stated that she dropped para graphs 1 6, and 8 as these dealt with piece rate systems and the Employers system was on an hourly basis The Union also dropped paragraph 7 that dealt with a time clock in the shop In paragraph 9 that dealt with wages, prices, standards, and other working conditions, the Union deleted the words prices and standards The Union proposed some modification in item 10 that dealt with not changing the type of work during the term of the agreement, and Holroyd indicated to the Union that he had made a proposal earlier that was exactly opposite to that Namely, that the Employer had the latitude to put in whatever system it desired In fact, the Employ er s proposal was that the existing wage rates continue for the duration of the agreement subject to the Employ er's absolute discretion to modify the rates as business dictates and subject to the Employers absolute discretion to institute and operate a piece rate system This propos al also stated that the Employer would not go below the contract rate Item 12 of this article proposed that the Employer would grant merit , length of service , or other individual increases only on approval of the Union The Union also dropped item 13 of article VIII The Union emphasized that it needed to keep article VIII, which provided that no worker be discharged without cause and if such discharge is found to be unjustified, the worker is entitled to reinstatement and compensation for back earning Modern had initially rejected the proposal and counterproposed that it may discharge for cause, that it reserve the right to issue and enforce work rules and that it will never be required to pay employees money for time not actually worked They moved then to article IX the distribution of work and the Union dropped item 1 under the article The Union insisted that it keep item 2 which dealt with supervisors not performing bargaining unit work and Holroyd pointed out that he had made an opposite pro posal They then moved to article XIV at which time Hedian proposed the new language on Right to Leave the Shop and Call In Pay 9 This article, as ultimately proposed by the Union reads as follows Employees who are required by the Employer to remain in the plant when there is no work for them to do or the facilities are not functional shall be paid for all time spent waiting In the event of such G C Exh 23(b) conditions, the employees may be sent home or kept at the plant, at the Employers option All workers who are requested or permitted to report for work shall be supplied with at least 2 hours worked or paid for at least 2 hours Holroyd had problems with the last sentence and, after some discussion, said that he would pass this on to the company and see if it motivated them to change their positon At this point in the proceeding , the parties set a date for the next meeting at 1 p in on 12 November 1984 They then moved on to discuss leaves of absence, be reavement pay and jury duty The parties left these items for future discussions and that was the end of the meeting The next negotiation session was held on 12 November 1984 at 1 p in Holroyd was accompanied by Karen Hamrock an attorney in his office and began by saying that he was all ears The Union indicated that it hoped to hear something from him as it had cut its demands and dropped language in hopes of getting a response from the Company She then suggested that they talk about the grievance procedure Hedian stated that the Union was agreeable to have individuals adjust their grievance, but the Union would be the sole party that would decide on arbitration Holroyd agreed to the Union s reservation of exclusive right to determine what subjects would be arbitrable The Union indicated that any private adjust ment of grievances must be consistent with the contract, and therefore the Union wanted to be present Holroyd said the Company would agree to make no settlements inconsistent with the contract but could not agree that the Union had the right to reverse the settlement The Union then asked could it arbitrate if it felt the settle ment was inconsistent with the contract Holroyd said these settlement would not be binding as past practices, and if Modern was satisfied and the employees satisfied, why would not the Union agree Hedian said there was a lot of difference between the Respondent dealing with an employee rather than the Union The Union wanted the right of approval Holroyd then began talking about the changes that the Union had made in the previous meeting and indicated that they were mostly economic and the Company ad vised him that its economic position was no better than before He said Respondent was in a negative cash flow, although work had picked up a little and that it did not make any sense to make commitments to cover addition al expenses when it did not have the money Hedian said that they had cut their demands on wages vacations and holidays and asked if Modern was ready to talk about two unpaid holidays Holroyd indicated that the em ployees were already off so much The operations were erratic There were layoffs up and down Why would the employees want to be off more additional days9 Holroyd also mentioned that on other items like the dis tnbution of work, dealing with the fact that it could not be done by nonbargaining unit or nonunion people that it was an economic matter He said that if a supervisor normally performs half of the work and then cannot do it anymore because of this clause and just stands around 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD doing nothing because the Company has agreed that he cannot work on it, this is wasting company money The Union then asked is everything economic, that it wanted protection for its people, and it was not their fault that the supervisors worked half the time Holroyd responded by saying that it makes no sense to let a person stand around and twittle his fingers and call someone who is laid off to do the work The Union suggested some type of limiting language that would permit supervisors to do bargaining unit work in emergency situations They then discussed what would be an emergency situation There was no agreement Holroyd then asked if the Union was still insisting on the right to leave the shop, as his notes were unclear on their position Hedian responded, no that they had modi feed their proposal and referred him to their new propos al 10 At this point, they took a short caucus and, when they returned, Hedian told Holroyd that she did not see any movement and that she had hoped for some Holroyd in dicated that it was hard to make any movement when there was no money They then turned to the arbitration clause again and the Union stated that it needed to be the exclusive procedure for violations of the contract and that it understood individuals can adjust grievances Holroyd said okay no problems with that The Union still insisted that it has a remedy of backpay to go along with the right in the event an arbitrator found that an employee had been unjustly discharged Holroyd said that an arbitrator should not have authority to award money for work not done and that if an arbitrator rein stated anybody, it would be without backpay The par ties continued with quite an extensive discussion and Holroyd s position on backpay did not change They then moved to Respondents proposals that dealt with the indemnification agreements, and Hedian explained that they were illegal and unenforceable Holroyd agreed and the proposal was withdrawn The parties then turned to the agency problem and it was agreed that there would be no language at all on this subject in the contract This meeting ended at 2 50 p in because Holroyd had to be in Charleston West Vir ginia at 5 o clock The Union proposed and it was agreed that the next meeting be held on Friday 30 No vember 1984 at 1 p in The 30 November 1984 session began with Hedian in dicating that the Union had dropped a lot of language it had reduced its economic demands on wages, vacations and holidays, its benefit proposal was the lowest it could be and Modern had proposed only what the law re quired it to give such as returning employees to work after jury duty and maternity leave union recognition and overtime after 40 hours a week She said that the Respondent had not made a single offer of substance on money or on protection for employees or benefits, on recognition of employee rights or the principle of-se niority She said that the Company would not even agree to seniority for layoff and recall, and that the Re spondent wanted the right to make the decision based on skill ability, and dependability of the employees She 10 G C Exh 23(b) said that is not that hard to swallow but the fact that there is no recourse to challenge the decision is very hard Holroyd said he did not remember that, and Hedian advised that her notes showed this and Modern would not even agree to backpay for employees discharged un justly She advised Holroyd that it was ridiculous to have everything at the sole discretion of the employer She said that they had not been able to work out a major contract item including the grievance procedure She said that the Employer should make some movement, that the Union would not give their bottom line now She said that they could move more but they wanted something and they wanted some protections Holroyd said that he had reviewed the Unions pro posals especially in view of the recent litigation, the filing of the current charge and said that everything is a cost item, directly or indirectly He said that the Compa ny was losing money and that it wanted to keep control over its business and resolve its problems at the same time Jackson Moore advised that 6 or 7 years ago the Company made speeches about losing money and that it has done this every year since and that its really weird for the Company to be loosing money over all of these years He said it was hard to believe and then comment ed that figures can lie and liars work with figures and that he did not believe that the company books that the Company was offering to show them would tell the whole story Holroyd informed the Union that there were 10 applicants for every job available at the plant and that paying more money to the employees would not make the existing workers any better than they were Holroyd did agree to giving employees Christmas, Thanksgiving, and New Year s Day off without pay At 1 30 p in , the Union took a caucus until 1 55 p in and when they returned they began talking about back pay remedies in the arbitration proceedings The parties continued to discuss the grievance procedure and the functions of the arbitrator Holroyd continued to main tam this was economic and would increase costs The parties also discussed the Employers proposal on strikers or slowdowns, and Jackson Moore said that he could never agree to that proposal There was some talk about the parties being able to bring the proceeding outside the contract or to force compliance with the contract and Holroyd said that as the Company could not go to arbi tration it would not agree that it could not go to court to compel the Union to comply with the contract The par ties then turned to the Respondent's making individual settlements with the employees and Modern insisted that if an employee makes the settlement that should be the end of it and that the Union could not change that He said that the Union is the agent of the employees, not the other way around This meeting ended at 3 05 p in The parties talked about a meeting in the week of 17-21 December 1984 and Vivian Hedian stated that she did not know whether she would be free and they would set a definite date later She testified that they never did set another date because they thought it was futile at that point based on everything that had happened up to that date The par MODERN MFG CO 21 ties had no further meetings after this meeting on 30 No vember 1984 Discussion and Conclusions The complaint alleges that by its overall acts and con duct, including its insistence on unreasonable proposals intended to frustrate and insure the failure of the collec tiv bargaining process its refusal to conduct negotiations in 2 day consecutive sessions, insisting on I day meet ings, and its curtailment of each negotiation session after approximately 2 hours of bargaining , Respondent bar gained in bad faith with the Union The Supreme Court has stated that Collective bargaining is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of take it or leave it , it presupposes a desire to reach ulti mate agreement to enter into a collective bargain ing [agreement] 11 In assessing whether the parties have fulfilled their ob ligation to bargain in good faith the Board has been mindful, as it noted in Chevron Chemical Co 261 NLRB 44, 46 (1982), that Section 8(d) does not compel either party to agree to a proposal or require the making of a concession Thus the Board does not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements NLRB v American Nation al Insurance Co, 343 U S 395 404 (1952) On the other hand , as stated by the Supreme Court, [T]he Board has been afforded flexibility to determine whether a party s conduct at the bargaining table evidences a real desire to come to agreement And specifically we do not mean to question in any way the Boards powers to determine the latter question drawing inferences from the conduct of the parties as a whole NLRB v Insurance Agents International Union [supra at 498] In a recent decision the Board stated that a respond ent s conduct must be analyzed as a series of related acts and not as singular isolated incidents 12 Thus we must look to Respondents total conduct Accordingly in all the circumstances of this case I must conclude that Respondent did engage in bad faith bar gaining as alleged in the complaint In arriving at my conclusions , I did not view the bar gaining negotiations in isolation The negotiations cannot be treated in a vacuum Events that preceded the negoti ations as well as events occurring simultaneous with the negotiations must be considered to determine the Re spondent s real intent with regard to its proposals and positions taken at the negotiations Respondents state ments during negotiations certainly must be considered to determine whether it still retains attitudes that existed prior to the negotiations In this case, we are not dealing with an employer that is allegedly on the brink of bankruptcy as a result of a union We have a Respondent who for years paid mini mum wages with no other benefits to its employees, and who vehemently resisted its employees organizational efforts In this regard, during the organizational cam paign, the Respondent threatened its employees with less work and layoffs, with plant closure and with economic reprisals if they selected the Union as their bargaining representative The Respondent also told employees not to sign union authorization cards, threatened its employ ees that Respondent had terminated employees because of union activities and advised employees that the Re spondent was against the Union and would do anything to stop the Union from becoming the employees bar gaining representative Also Respondent told employees that it would be futile fo them to select the Union as their bargaining representative Thus Respondents vice president , Starky, informed employees that if they select ed the Union as their bargaining representative it would just have to kick the union out because it could not afford it Starky also informed employees that although the Respondent would have to negotiate with the Union he did not have to give anything that he did not want to give and that the Employer would not give anything it did not have to give 13 Respondent was hostile to the Union and made that clear to its employees and further made it clear that whatever happened it would never negotiate an agree ment with the Union on anything other than its own terms Although it is true that people may change nothing evolved during these negotiations to indicate that the Re spondent had changed its position toward the Union It is clear to me that Respondent had great animosity toward the Union and this was reflected by its negotia tor Attorney Holroyd throughout the negotiations This is evidenced by Holroyd s continued reference to Re spondent s backpay obligations as a result of its unfair labor practices in the prior proceedings This is further evidenced by Respondents refusal to negotiate a prove lion granting an arbitrator the right to award backpay because it had been held in violation of the Act, which resulted in backpay awards Thus the Respondent con tinued throughout these negotiations to refuse to negoti ate any item whereby an arbitrator would be able to award money damages to an employee for work not per formed This was a constant reference to the backpay award Respondents hostility is further evidenced by Holroyd s letter of 4 September 1984 in which he can celed the scheduled negotiations because of a Board backpay proceeding and referred to the proceeding as one in which he characterized as a further flogging of the Respondent I think the Respondent stated its position in the negoti ations when it stated in its answer that Since the Union would not move to a point where it would agree to no additional cost to Respondent 11 NLRB v Insurance Agents 361 U S 477 485 (1960) 12 Leeds Cablevision 277 NLRB 103 at In 2 (1985) 12 See G C Exh 2 Administrative law judge s decision below 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD who was in a failing economic economy, Respond ent never reached a point where it would agree to other non economic sessions This is a flat statement that unless Respondent has an agreement from the Union that it would not insist on any economic items the Respondent would not agree to ne gotiate on any noneconomic items which is exactly what it did in these negotiations Thus, the Respondent condi tioned bargaining on the Union s total capitulation on economic items It is my opinion that Respondent entered these negoti ations with a fixed intent to frustrate the negotiations and not to reach agreement with the Union Respondent knew that the Union was not in a position to take any economic action as Respondent made it clear to the Union that it had 10 applicants for every position in its plant Although it is true that bargaining is a give and take proposition and that neither side need make conces sions, the parties must confer in good faith and make rea sonable efforts to come to an agreement The Respond ent did not do this A certification must confer some rights on the Union if nothing more than the right that the Respondent Em ployer cannot continue to act unilaterally in the area of mandatory subjects of bargaining Thus it would seem that if an employer wanted to act unilaterally it must re quest and negotiate that it be permitted this right from the union Throughout these negotiations Respondent de manded the right to have absolute control over all eco nomic items It consistently demanded that it have sole discretion as to layoff and recall of employees It consist ently demanded that it had the right to sell or contract out any of its operations at any time even though it be unit work It continuously demanded that it had the uni lateral right to eliminate unit work or unit positions with out any obligation to negotiate over either the decision or the effects of such a decision The Respondent also continuously demanded that it have the sole discretion as to whether its supervisors performed unit work at any time and not merely in emergencies In addition to its other proposals, Respondent pro posed that refusing to cross a picket line constitutes a violation of the no strike clause The Respondent pro posed as a no strike clause that There shall be no strikes or slow downs If any em ployees engage in such action they may be disci plined, including discharge, and if submitted to arbi tration the arbitrator shall not have the authority to change the discipline or discharge for any employee who participated in the strike or slow down in any way-and that the Union shall take whatever action necessary to end the strike or slow down In response to the Union s proposal that employees not work on struck work, Respondent proposed that the employees will work on items assigned to them It is clear that Respondent was insisting on the Union s relin quishment of all the statutory right to strike It was de manding a total waiver of the employees right to honor any type of lawful picket line or to refuse to perform struck work and was imposing an absolute ban on work stoppages of any sort and retained to the Respondent the absolute right to discipline participants in work stop pages in any manner it chose and attempted to impose on the Union an absolute duty to end work stoppages Additionally, at the final meeting on 30 November 1984 Respondent injected a new proposal into the negotia tions by refusing to share in any arbitration cost in curred in connection with work stoppages in breach of the contract Absolute insistence on these sweeping waivers of the statutory right to strike, considered with the previously discussed items on which the Respondent sought absolute control and its positions on the griev ance arbitration procedure, clearly demonstrate that the Respondent never intended to reach an agreement on a collective bargaining agreement with the Union With regard to wages, the Employer did concede at one point that it would not, under any circumstances in the exercise of its absolute discretion to modify wage rates, make any changes that would reduce the employ ees wages below those contained in the contract Re spondent s proposed wage rate at the time of these nego tiations was the minimum wage set by Federal law at $3 35 an hour Its concession meant that it would not pay below the minimum wage as required by law The Respondent also made one further concession with regard to the hours of work and overtime It agreed to pay overtime after 40 hours worked in a week as speci feed by Federal law The Respondent further insisted on the absolute right to determine holidays during the life of the agreement however it did agree that it would grant the employees three holidays Thanksgiving, Christmas and New Year s Day off without pay The Respondent steadfastly refused to grant any vacations Although the Respondent did agree to a grievance procedure with the right of arbitration it steadfastly in sisted that the arbitrator could not make any award of damages to an employee for work not performed That is, the arbitrator could not award backpay for damages no matter what breach of the agreement the Employer was found guilty of In the 31 May 1984 letter Respondents negotiator and attorney Holroyd advised the Union that the negotia tions were scheduled for 4 June and that he did not an ticipate that it will go for more than one day It is obvi ous at this point that Holroyd knew that when the Union got his rejections of their proposals and his counterpro posals there would be very little discussions In this regard, the Employer rejected the Union s proposals with regard to selling or transferring the business, piece rates discharge and discipline of employees distribution of work holidays and recall, and proposed that in these areas that it have absolute control and discretion without union interference The Employer also outright rejected many of the Union s proposals without offering any counterproposals It was from this position that the par ties commenced their negotiations It is clear to me that the Respondent intended that its almost total rejection of the Union s proposals in almost every major item was designed to frustrate and insure the failure of the collec tive bargaining process See A I King Size Sandwiches MODERN MFG CO 23 265 NLRB 850 (1982) and San Isabel Electric Services, 225 NLRB 1073, 1079 at fn 7 (1976) The Respondent will no doubt, argue that from the inception it made its books available to the Union and in formed the Union that it had no money to provide for additional cost to the Respondent This certainly is a fact and the Union did not at any point make an attempt to look at the Respondents books The Union offered sev eral explanations one being that it did not believe the books or that it would be shown a true copy of the books The Union also stated it was not time to look at the books because the parties had not really got to a point of discussions on economic matters This fact is certainly true because as economic matters were raised Respondent said that it had no money and to put that off The Respondent even considered the arbitrator s right to make money awards as an economic factor, not withstanding the fact that this could never happen unless the Respondent engaged in some act that was prohibited by the contract In any event, I do not regard this as being controlling in this matter, because as Respondent stated in its answer, it refused to move and give on non economic items, because the Union would not capitulate on economic costs to the Respondent I regard this posi tion in and of itself as being a refusal to bargain Without elaborating further on this proceeding with its nine relatively short bargaining sessions of approximately 2 to 3 hours in length, it seems to me that employees who survive the rigors of a contest such as went on in this proceeding to a point where the Board and court direct bargaining without a Board conducted election be cause it appears that from overall conduct of their em ployer a free and fair election could not be held deserve something better than they got from this Employer I am not unmindful of the Board s recent decision in Reichhold Chemicals, 277 NLRB 639 (1985), in which the Board reached a contrary result In that case, the re spondent s initial contract proposal contained a broad management right s clause a narrow grievance defini tion and a comprehensive unauthorized work stoppage provision The administrative law judge found that insist ing to impasse on these articles was a violation The Board reversed, finding that insistence on these clauses alone is not evidence of an intent to frustrate the collec tive bargaining process In that case there was no history as we have here There was no hostility evidenced on the part of the em ployer and certainly there was no union animus evi denced during the bargaining negotiations In that case the certification was a result of a fair election without all the expressions of animosity and hostility as evidenced in this proceeding I do not regard this decision as control ling under the facts of this case Accordingly as I have already indicated, it is my con clusion that the Respondent has engaged in bad faith bar gaining in violation of Section 8(a)(5) and (1) as alleged in the complaint CONCLUSIONS OF LAW I The Union is the certified bargaining agent for the Respondents employees in the following appropriate unit All full time and regular part time production and maintenance employees employed by the Employer at its Buckhannon West Virginia facility excluding office clerical employees sales employees, and guards professional employees and supervisors as defined in the Act 2 Respondent engaged in conduct violative of Section 8(a)(5) and (1) of the Act by bargaining with the Union in bad faith with no intention of entering into any final or binding collective bargaining agreement 3 The unfair labor practices found here affect com merce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act I shall also recommend that Respondent be ordered to bargain col lectively in good faith, on request, with the Union as the exclusive bargaining representative of its employees in the above unit, in the event that an understanding is reached, to embody such understanding in a signed agreement, and to post the attached notice In order to ensure that the employees will be accorded the statutorily prescribed services of their designated bar gaining agent for the period proscribed by law I shall recommend that the initial year of certification begin on the date that Respondent commences to bargain in good faith with the Union as the bargaining representative in the appropriate unit Southern Paper Box Co, 193 NLRB 881 883 (1971), A I King Size Sandwiches 265 NLRB 850 861 (1982) Having found that the Respondent engaged in bad faith bargaining from its inception it is clear that the em ployee members of the Union s negotiating committee did not receive the compensatory benefit of good faith bargaining for which they sacrificed their wages there fore to put the negotiations in their proper prospective I shall require that the Respondent reimburse the employ ee negotiators for any earnings lost while attending the bargaining sessions with interest as called for by Florida Steel Corp 231 NLRB 651 (1977) Harowe Servo Con trols 250 NLRB 958 1123 (1980) Because of the long distances to be traveled by the negotiators involved I shall order that the sessions be more frequent and that their duration be longer 14 On these findings of fact and conclusions of law and on the entire record I issue the following recommend edis 14 Other remedies sought by the General Counsel are denied 5 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 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent Modern Manufacturing Company Inc, Buckhannon West Virginia, its officers agents suc cessors and assigns, shall 1 Cease and desist from (a) Refusing to bargain in good faith with the Union as the collective bargaining representative of its employees (b) In any other manner interfering with restraining, or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On the Union s request bargain collectively in good faith within 15 days of this recommended Order concerning rates of pay, wages hours of employment, and other terms and conditions of employment with the Union as the exclusive collective bargaining representa tive of all the employees in the above unit and if an agreement is reached embody it in a signed contract (b) Meet, confer, and negotiate with the Union more often and for longer periods of duration than in the past (c) Reimburse the employee members of the bargain ing committee for wages lost while attending the previ ous negotiation sessions in the manner set forth in the remedy section of this decision (d) 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 (e) Post at its Buckhannon West Virginia facility, copies of the attached notice marked Appendix 16 Copies of the notice on forms provided by the Regional Director for Region 6, after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply The complaint shall be dismissed insofar as it alleges violations of the Act not specifically found 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 or dered us to post and abide by this notice WE WILL bargain in good faith with the Union as the exclusive bargaining representative of our employees and WE WILL NOT engage in surface bargaining and WE WILL NOT bargain with a fixed intent not to reach an agreement WE WILL NOT in any other manner interfere with re strain or coerce you in the exercise of the rights guaran teed you by Section 7 of the Act WE WILL on the Union s request bargain collectively in good faith, within 15 days of this Order concerning rates of pay, wages hours of employment and other terms and conditions of employment, with the Union as the exclusive bargaining representative of all our em ployees in the appropriate unit and if an agreement is reached WE WILL embody it in a signed contract WE WILL meet and confer and negotiate with the Union more often and for longer periods of duration than we have done in the past WE WILL reimburse the employee members of the union bargaining committee for wages lost while attend mg the previous negotiation sessions with interest MODERN MANUFACTURING COMPANY INC 16 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