Hartz Mountain Corp.

418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hartz Mountain Corporation and District 65, United Automobile, Aerospace & Agricultural Imple- ment Workers of America. Cases 22-CA-13946 and 22-CA-14814 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 16, 1988, Administrative Law Judge D. Barry Morris issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs. The Respondent filed a brief in answer to the General Counsel's and the Charging Party'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, 2 and conclusions3 and to adopt the recommended Order. ' The General Counsel asserts that the Respondent violated Sec. 8(a)(5) of the Act by failing to grant an across -the-board wage increase to the employees in January 1986 in accordance with its past practice. As the judge noted, the only prewithdrawal unfair labor practice alleged in the complaint was the surface bargaining allegation. Because the refusal to grant the January 1986 wage increase was not alleged in the complaint or litigated at the hearing, we do not reach a conclusion on this issue. For the same reason, we do not decide the lawfulness of Glassman's statement in his December 31, 1985 letter dealing with the lack of a wage increase. 2 In reaching his conclusion that the apparent freedom of employee Juan Vasquez to move freely throughout the Respondent 's facilities did not prove that he was a management agent , the judge found that the duties of Vasquez' regular job required him to move from building to building In this regard, we note that the testimony indicates that Vas- quez' duties were to pick up and deliver production reports , fix convey- ors, and serve as a checker Employees testified that they had seen Vas- quez in buildings 1, 2, 4, and 5 and that he had been seen performing work-related duties in buildings 1 and 4 There was also testimony claim- ing that Vasquez' duties as a checker did not require him to go into dif- ferent buildings and that he had never been seen performing work in buildings 1 or 5. The judge's finding implicitly discredits the testimony that Vasquez' duties had not required him to go from building to build- ing. The judge apparently made the reasonable inference , based on the nature of Vasquez' duties, that Vasquez had been required to go into not only buildings I and 4 but also buildings 2 and 5 The judge found that the Respondent had submitted a "comprehen- sive" counterproposal on February 19, 1985. We note that although there is testimony to the effect that the Respondent's proposal submitted on that date was "comprehensive," there is also testimony indicating that the proposal was not complete (e.g., it contained no health provision). Re- gardless of how the February 19, 1985 proposal is characterized , howev- er, it did not prevent further negotiations and, therefore, is not indicative of the Respondent's bad faith. In this regard, the parties met I I times be- tween February 19 and June 12, 1985 (when the Respondent submitted additional proposals), and the parties made some progress during that period, narrowing differences and reaching agreement on at least some subjects. s The General Counsel and the Charging Party claim that the Re- spondent never explained, inter alia, its refusal to submit a counterpropos- al on the subject of pensions . The Respondent's negotiator (Glassman) testified, however, that he had told the Union that the Respondent's re- fusal to agree to the pension proposal resulted from economic factors. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. The judge implicitly credited this testimony by finding that the Respond- ent had explained the reasons for its positions on the open issues . Further, the record indicates that the Respondent had expressed concerns about the potential cost of the Union's proposal . Despite the Union's attempt to reassure the Respondent about its concerns, it appears that the parties un- derstood that cost was the reason they had failed to reach agreement on this issue In this regard, Union Representative Fine testified that the Union understood that the Respondent had rejected the Union's pension proposal and Respondent Representative Kaye testified that the Union had never asked why the Respondent had rejected the proposal . It also appears that the Respondent had not rejected the idea of a pension plan outright, but merely had rejected the Union's proposed pension plan. Thus, as of the time the Respondent had submitted its September 10, 1985 proposal, the pension issue was still on the table. Marguerite R. Greenfield, Esq., for the General Counsel. Stephen A. Ploscowe, Esq., Marvin M. Goldstein, Esq., Ilene F. Lainer, Esq. (Grotta, Glassman & Hoffman), of Roseland, New Jersey, for the Respondent. Eugene G. Eisner, Esq. (Eisner & Levy), and Ellen F. Moss, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in Newark, New Jersey, on March 9-13, April 2-3, May 4, 1987, and March 9, 1988. Upon charges filed by District 65, United Automoile, Aerospace & Agricultural Implement Workers of Amer- ica (District 65 or the Union), a consolidated complaint was issued on February 23, 1987, alleging that Hartz Mountain Corporation (Respondent) violated Section 8(a)(1), (3), and (5) of the National Labor Relations (the Act). Respondent filed an answer denying the commis- sion of the alleged unfair labor practices. The parties were given full opportunity to participate, produce evi- dence, examine and cross-examine witnesses, argue orally, and file briefs. The parties filed initial briefs in October 1987 and supplemental briefs in April 1988.11 On the entire record of the case, including my obser- vation of the demeanor of the witnesses, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Respondent, a corporation with a place of business in Jersey City, New Jersey, is engaged in the manufacture and nonretail sale and distribution of pet and related products. It annually sells and ships from its New Jersey facility goods valued in excess of $50,000 to consumers located outside of the State of New Jersey . Respondent admits that it is an employer engaged in commerce ' Respondent filed a reply to Charging Party 's supplemental brief on May 4, 1988. 295 NLRB No. 48 HARTZ MOUNTAIN CORP. 419 within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. In addition, Respondent admits, and I so find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues are: 1. Did Respondent engage in surface bargaining in vio- lation of Section 8(a)(5) and (1) of the Act? 2. Was Juan Vasquez, a nonsupervisory employee, an agent of Respondent? 3. Did Respondent make unilateral changes in viola- tion of Section 8(a)(5) and (1) of the Act? B. The Facts 1. Background The Union was certified on November 22, 1982, as the exclusive bargaining representative of Respondent's pro- duction and maintenance employees at the Jersey City facility. On August 4, 1983, the Board issued a bargain- ing order and on June 25, 1984, the Third Circuit Court of Appeals enforced the Board's Order.2 The Union and Respondent met on 25 occasions during the period July 31, 1984, to August 28, 1985. 2. Bargaining sessions a. July 31, 1984 The first meeting was held on July 31, 1984. Several hours prior to the meeting the Union presented Respond- ent with a 10-page document entitled "Proposals for Col- lective-Bargaining Agreement," containing 44 items. Gil- bert Kaye, Respondent's vice president, stated that since Respondent had just received the Union's proposals the Company was not in a position at that point to respond to them. Eugene Eisner, the Union's counsel, requested information concerning current wage rates, entry level hiring rates, and health insurance coverage . Respondent agreed to provide the information as of the next meeting. Eisner stated that he deemed the Local 806 contract, which had been in effect prior to 1978, to be a "frame- work" for negotiating the current contract. Respondent did not agree or disagree with the statement. b. August 21, 1984 The next meeting was held August 21, 1984. Kaye stated that Respondent had an opportunity to review the proposals and had a series of questions about them. Re- spondent then proceeded to ask the Union questions con- cerning the following provisions in its July 31 proposals: recognition, union security, checkoff, employee listing, new workers, use of District 65 employment office and 2 Hartz Mountain Corp. Y. NLRB, 266 NLRB 1226 (1983), enfd mem. 738 F.2d 422 (3d Cir. 1984). For a discussion of the prior labor relations history at the Jersey City plant see Hartz Mountain Corp, 228 NLRB 492 (1977), enfd. 593 F 2d 1155 (D.C. Cir. 1978); Hartz Mountain Corp., 260 NLRB 323 (1982); Hartz Mountain Corp. v. Dotson , 727 F 2d 1308 (D.C. Cir. 1984). probation. Leslie Roberts, on behalf of the Union, ex- plained that when the proposals were first furnished they were put into summary form addressing only the princi- ple involved. At this point the Union presented Respond- ent with draft contract language on many, but not all, of the provisions. The Union then requested the information which was asked for at the prior meeting . Respondent supplied information concerning current wage rates, cur- rent entry level rates, and health insurance. On August 27, 1984, the Union forwarded language covering an ad- ditional six proposals and on September 5, 1984, it fur- nished language for an additional four proposals. As of this time, however, the Union had not yet submitted a wage proposal. c. September 12, 1984 At the third bargaining session held on September 12, 1984, the Union announced its first wage proposal. Kaye, on behalf of Respondent, stated that the wage package was unreasonable and unacceptable and that he categori- cally rejected it. The Union stated that it was prepared to give Respondent answers to the questions posed at the previous meeting and a discussion took place concerning several of the proposals. d. October 3, 1984 The fourth bargaining session was held on October 3, 1984. A review of the proposed contract clauses was re- sumed with the Union attempting to answer any question posed. It was pointed out that proposed Article 7(b) dealing with reduction of wages was not identical with the language in the Local 806 contract concerning that issue. With respect to several of the questions asked by Respondent the Union stated either that it would get back to Respondent with an answer or that it reserved response. e. October 18, 1984 The fifth bargaining session was held on October 18, 1984. Union Representative Joseph Fine stated that Re- spondent's questions thus far had made the Union realize that its draft contract language was not written as in- tended in every instance . Accordingly, the Union modi- fied certain of its proposals. Roberts testified that some of these proposals were new to the Jersey City facility. After discussion concerning overtime the Union stated that it was now in full agreement with Respondent's po- sition concerning overtime . After a discussion concern- ing the Union's vacation proposals, Fine conceded that Respondent's questions had revealed flaws in the Union's proposed contract language and, therefore, the Union modified its proposal concerning vacations. f. November 29, 1984 The sixth bargaining session was held on November 29, 1984. Jerold Glassman announced that he was ap- pointed by Respondent to take the place of its prior counsel. He stated that Respondent was interested in maintaining the continuity of negotiations and that it de- sired to go through the remaining clauses of the contract 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in order to clarify the areas of ambiguity. He stated that once this was done Respondent would formulate coun- terproposals to the Union's proposals. Accordingly, the parties continued to review remaining contract clauses at this session. agreement was broken down article by article, with each article set forth on a separate page so that the parties could initial each article as they reached tentative agree- ment. The Union requested additional time to review the counterproposals. g. December 13, 1984 On December 3, 1984, Respondent proposed a 50-cent- per-hour wage increase, effective January 7, 1985. The proposal specified that it would not foreclose any further negotiations with the Union on wages. At the seventh bargaining session held on December 13, 1984, the Union accepted the proposed 50-cent wage increase . The par- ties continued to discuss the contract proposals and the Union stated that it had language on the vacation clause which it would send to Respondent in typed form. In ad- dition, Respondent indicated that it was uncomfortable with the idea of superseniority . The Union reserved its complete response until a subsequent time. h. January 28, 1985 The eighth bargaining session was held on January 28, 1985.3 Eisner suggested that the pace of the negotiations be increased and that Respondent make some counter- proposals. Glassman responded by reminding the Union that this was only the second negotiating session in which he had been involved and that it was important that Respondent understand the position of the Union as to each of its proposals. The parties continued to discuss various contract proposals and the meeting adjourned with Eisner remarking that it had been a "fruitful" ses- sion. i. February 7 The ninth bargaining session was held on February 7. Eisner again expressed his dissatisfaction with the fre- quency of the meetings and Glassman responded that Respondent would hasten the pace by having at least three meetings scheduled in advance. Glassman reminded the Union that the Employer Committee was always present and ready to start bargaining at the scheduled time and that the meetings lasted at least 3 hours. The parties continued to discuss contract clauses and at the end of the meeting Eisner indicated that he anticipated that the parties would be able to complete the review of the clauses during the next meeting. Glassman responded that not only did he anticipate that the review would be completed at the next meeting but that Respondent would bring at least half of its bargaining counterpropos- als at that time. j. February 19 The 10th bargaining session was held on February 19. After reviewing five additional contract clauses Glass- man told the Union that the Employer Committee had no further questions as to the meaning of the Union's proposals. Respondent presented the Union with a com- prehensive counterproposal on all of the language. Glass- man explained that the proposed collective-bargaining 3 All dates refer to 1985 unless otherwise specified. k. March 7 The 11th bargaining session was held on March 7. The Union presented its reactions to Respondent 's proposals. Conceptual understandings were reached on holiday work pay, management rights, and sick leave . The par- ties agreed on specific contract language for jury duty, rest periods, lunch periods , washup time, uniforms, trans- portation and military service leave. 1. March 21 The 12th bargaining session was held on March 21. Glassman proceeded to review the counterproposals and explained the reason for each proposal . With respect to hours of work the Union proposed that the regular workweek shall be 40 hours per week from Monday to Friday. Respondent counterproposed a floating work- week which could fluctuate according to business needs. Glassman explained that Respondent sells products and services retailers and that retailers had changed so much in the past few years that weekends made little or no dif- ference. Glassman further stated that Sunday was now the second busiest day of the week. Glassman pointed out that under its proposal Respondent would still pay Saturday and Sunday as premium days, however, it was trying to contractually prepare itself for changes that were likely to occur in the marketplace. in. April 9 The 13th bargaining session was held on April 9. A long discussion concerning layoffs and seniority took place. The Union's proposal called for plantwide seniori- ty with respect to layoffs and recall. Glassman pointed out that while there was presently departmental seniori- ty, in view of the fact that the employees were asking for plantwide seniority, Respondent acceded to that re- quest and provided for plantwide seniority in its propos- al. In order to provide more time for meetings the Union requested that Respondent permit the employees on the committee to leave work early. Respondent agreed to let the employees out 1 hour early so that negotiating ses- sions could begin earlier. n. April 16 On April 11, as the parties approached the issue of health insurance, Respondent requested information from the Union on its health and welfare proposal . On April 16, the 14th bargaining session was held. The Union pro- ceeded with a detailed response to each of Respondent's counterproposals of February 19. With respect to wages the Union stated that it had no objection in principle to Respondent's right to grant merit increases . The Union agreed in principle to Respondent's counterproposal con- cerning the grievance procedure. After the Union com- pleted its presentation, Glassman stated that Respondent HARTZ MOUNTAIN CORP. 421 was preparing a complete counterproposal which would be in written form by the next session. However, a dis- cussion followed concerning some of Respondent 's coun- terproposals. Concerning union visitation and bulletin boards Respondent agreed to the Union 's counterpropos- al. With respect to discipline Respondent agreed in prin- ciple to the Union's counterproposal . As the meeting ended Eisner stated to Respondent's representatives, "We appreciate the seriousness with which you under- took our proposals." He continued, "I speak for every- one when I say that we've made some substantial progress tonight." o. April 25 The 15th bargaining session was held on April 25, at which time Respondent gave the Union its written coun- terproposals. The Union responded to each of the provi- sions which were still open after which Respondent pro- ceeded to deal with the Union's responses. Respondent rejected the Union's proposals concerning subcontract- ing, moving, and notification. After further discussion the Union agreed to drop its proposals concerning moving, successors and assigns, subcontracting and liqui- dation. p. May 2 The 16th bargaining session was held on May 2. The parties reviewed both the open and closed items. As of this session agreement had been reached on the following articles: union visitation, bulletin boards, grievance pro- cedure including binding arbitration, funeral leave, jury duty, sick leave, safety, rest periods, lunch periods, washup time, transportation , military, uniforms, and sepa- rability. In addition, many sections of the remaining arti- cles were agreed upon. With respect to several of the open items Glassman explained that concerning hours of work Respondent needed to be freed from the calendar week because its customers were no longer tied to a 5- day workweek. In addition, Glassman explained that Re- spondent's proposal to change eligibility for holiday pay, which presently required the employees to work the day before and the day after the holiday, was important to the Company because of productivity problems . Glass- man suggested that if final agreement could not be reached at the next session possibly the parties should obtain the services of a mediator. q. May 7 By letter dated May 2 the Union responded to Re- spondent's health insurance information request. The 17th bargaining session was held on May 7. Eisner stated that the Union expected to have a final agreement by the end of the session and that with that in mind, it was pre- pared to make some final moves beyond which the Union would not go. In that context he stated that the Union was prepared to drop its demands for a union shop and checkoff. Eisner stated that the Union absolute- ly rejected Respondent's seniority proposal and its pro- posal that any 5 of 7 days be the workweek. Glassman responded that if the Union had a time limit under which it would negotiate, Respondent could not negotiate under that kind of pressure. Glassman further stated that "we're not at an impasse and we're not ready to say 'take it or leave it."' With respect to the workweek, Glassman again stated that Respondent needed to re- spond to its customers' requirements and must be able to react to the marketplace . Concerning holiday leave, Glassman stated that Respondent was experiencing pro- ductivity and absentee problems in the weeks in which a holiday falls, and the Company believed that the only way to solve this problem was to demand attendance for the entire week. r. May 23 By letter dated May 21, Respondent advised the Union that its benefits consultant had reviewed the material fur- nished by the Union and submitted additional questions concerning the health and welfare proposals . The 18th bargaining session was held on May 23 . Eisner explained that after the last bargaining session the Union had a general membership meeting at which the Company's proposals were rejected . The parties continued to discuss the proposals and counterproposals . The Union stated that Respondent's proposal that it be entitled to money damages outside the grievance procedure was unaccept- able. Respondent agreed to delete that provision. At the conclusion of the meeting the parties agreed to request a mediator from the New Jersey State Board of Mediation. s. June 3 By letter dated May 24 Glassman wrote to the New Jersey State Board of Mediation on behalf of Respondent and the Union, jointly requesting the assignment of a me- diator. The letter pointed out that 18 negotiating sessions had been held and that the language and economic items were tentatively agreed to except for portions of 11 open articles. The 19th bargaining session was held on June 3 with John Tesauro, director of the New Jersey State Board of Mediation, present. Tesauro met with the Union and Respondent separately and each side present- ed its reasons for the proposals it deemed necessary. t. June 5 The 20th bargaining session was held on June 5, with representatives of the New Jersey State Board of Media- tion present. The parties reviewed the open items . Glass- man offered to provide the Union with a comprehensive proposal by June 12. u. June 12 By letter dated June 12, Respondent submitted to the Union a comprehensive proposal on each of the items which was still open. Respondent proposed a 10-percent increase in its health care and insurance program costs. Respondent also agreed to consider contributing the new higher amount to the District 65 security plan if its bene- fits were equal to or better than the Company's program. Alternatively, Respondent offered to remain in its present health care insurance program , maintaining the existing benefits or granting better benefits if they could be purchased for the increased amount . The 21st bargain- 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing session was held that evening with the mediators present. The Union asked for a meeting on June 18 so that it could study Respondent 's proposal and have time to formulate a counterproposal. men, Roberts and Eisner, were not in attendance. The Union was not prepared to offer a response to Respond- ent's proposal of June 25 . Accordingly, the mediator ad- journed the meeting. v. June 18 The 22d bargaining session was held on June 18, in the presence of the mediator . The Union stated that it reject- ed the 2.5-percent merit increase proposed by Respond- ent and it rejected the flexible workweek . The mediator presented several proposals on behalf of the Union. Re- spondent stated, however, that it was its understanding that it would receive a written, comprehensive counter- proposal and that it was not able to bargain over piece- meal proposals made through the mediator. The meeting was adjourned until June 25 at which time the mediator stated that the Union would submit a comprehensive written proposal. w. June 25 By letter dated June 24, the Union submitted to the mediator a written counterproposal. By letter dated June 25, Respondent set forth the Company's position with re- spect to each item of the Union's counterproposal and stated "hopefully this will conclude negotiations and a contract between the parties can be reached ." With re- spect to wages, the Union proposed that effective Janu- ary 1 , 1986, the Company shall grant a 50-cent-per-hour wage increase to bargaining unit employees . Respondent had earlier proposed only merit increases . As of the 23d session held on June 25, Respondent's proposal was for yearly increases to all bargaining unit employees in an amount not less than 2-1/2 percent of Respondent's prior year's gross payroll attributed to the entire bargaining unit. Concerning seniority, the Union proposed that em- ployees presently on layoff should not be subject to the provision and would be entitled to recall at any time. Re- spondent had previously proposed that seniority shall terminate at the end of 90 days after an employee is laid off for lack of work. In its June 25 letter Respondent stated it was willing to add the following language: "The 90-day period for employees presently on layoff who have more than one year of active service shall com- mence running on the date of ratification of this agree- ment." With respect to health benefits the Union pro- posed that the Company should maintain its present health care and insurance program benefit level, what- ever the cost. This provision was accepted by Respond- ent. At the bargaining session Mediator Davis told Re- spondent that the Union wanted time to review the Company's counterproposal which had been submitted that evening. The mediator explained that the Union was dissatisfied and expected Respondent to concede on more issues. The mediator also said that at this point the Union did not want to set another meeting date and told the mediator that it would contact him when the Union was interested in meeting again. x. July 30 The 24th bargaining session took place on July 30, in the presence of the mediator. The Union's chief spokes- y. August 28 By letter dated August 28 , the Union submitted a com- prehensive proposal on all items that remained open. The 25th and last bargaining session was held that evening. Respondent stated that since it had just received the pro- posal that afternoon it had not had sufficient time to review it. In the proposal the Union had changed its po- sition from a 50-cent across-the-board wage increase to 37-1/2-cent across-the-board plus 12-1/2-cent-per-hour aggregate merit increase . With respect to union security, the Union changed its position from a union-shop pro- posal to one of maintenance of membership . Respondent advised the Union and the mediator that it would submit a counterproposal and suggested that the Union contact the mediator if it believed a further meeting was neces- sary. 3. Events subsequent to bargaining sessions By letter dated September 10 Respondent submitted its written counterproposal to the Union and mediator. The letter stated "our agreement to remain at the Mediator's disposal continues." With respect to wages, Respondent modified its June 25 proposal by agreeing that no em- ployee with one or more years of service would receive less than a 10-cent-per-hour raise. Concerning seniority, Respondent accepted the Union's proposal that employ- ees scheduled to be laid off shall be permitted to exercise plantwide seniority. The last proposal made by either party was the pro- posal made by Respondent in the letter to the mediator dated September 10. The General Counsel and Respond- ent stipulated that at no time since Respondent 's Septem- ber 10 proposal has the Company nor the New Jersey State Board of Mediation been contacted by the Union to resume negotiations or discussions. The record re- flects, however, that on December 17 Eisner wrote to the mediator stating that there had been no change in the parties' positions since September 10. The letter also stated that the Union would not make any further con- cessions. 4. Stipulation entered into by General Counsel and Respondent The General Counsel and Respondent entered into the following stipulation: 1. Hartz Mountain Corporation and District 65, UAW met on 25 occasions during the period July 31, 1984, to August 28, 1985. One scheduled session was canceled on January 17, 1985, by mutual agreement of the parties due to a snowstorm. 2. The General Counsel does not and will not contend that the Company failed to meet at mutually agreed-on locations, on mutually agreed-on dates, and at mutually agreed-on times. 3. The Company did not delay or cancel scheduled meetings. HARTZ MOUNTAIN CORP. 423 4. The General Counsel does not and will not contend that the Company attempted to limit the duration of the parties' bargaining sessions. 5. The Company arrived at each bargaining session in a timely fashion and was prepared to bargain at every bargaining session. 6. The General Counsel does not and will not contend that the Company failed to respond in a timely manner to each of the Union's information requests. 7. The Company suggested and the parties agreed to the procedure of "signing off" on all agreements as they were agreed to during the negotiations. 8. The Company's chief spokesman and negotiating team asserted that they were vested with authority to bind the Company. 9. The Company at no time withdrew proposals that the Union either was considering or had already agreed to, nor refused to make proposals after promising to do so. 10. The Company did not introduce significant propos- als at a late stage in negotiations on topics which had not been previously discussed. 11. The Company explained, advocated, and gave rea- sons for its position on each unresolved item. 12. The Company presented a complete contact pro- posal, offered concessions and revised proposals in re- sponse to the parties' discussions. 13. The Company never reduced an offer as compared to its prior offer. 14. In late May 1985 , the parties agreed, at the sugges- tion of the Company, to call and utilize mediators as- signed by the New Jersey State Board of Mediation to facilitate bargaining. Thereafter, the parties met seven times with the mediator present, and in accordance with the procedure agreed on by the parties, exchanged pro- posals and counterproposals through the mediators both at meetings and in correspondence through the media- tors. 15. The last meeting between the parties was on August 28, 1985. The mediator was present. 16. The last proposal made by either party was made by the Company in a letter to the mediator dated Sep- tember 10, 1985. 17. The Company offered to be available to negotiate thereafter upon call by the mediator. 18. At no time since the Company's September 10, 1985 proposal has the Company nor the New Jersey State Board of Mediation been contaced by the Union to resume negotiations or discussions. 19. During their negotiations, the parties agreed to the following contractual provisions: complete settlement, union recognition, union visitation, bulletin boards, stew- ards, management rights, discipline , grievance procedure, arbitration, vacations, health insurance, life insurance, fu- neral leave, jury duty, sick leave, safety, rest periods, lunch period, washup time, transportation, uniforms, military service, miscellaneous including reasonable dress and appearance, plant closings and severance, reporting- in pay, holiday work guaranty, severance upon resigna- tion, separability. In addition, the parties agreed to portions of the fol- lowing contractual provisions : wages, hours of work and premium rates, seniority, holidays, no-strike-no-lockout, leaves of absence, duration. These latter provisions, pension and the union-security articles, also contain the items on which the parties have not agreed . As to each open item, the Company has an outstanding proposal. 20. The General Counsel does not and will not con- tend that on or after June 12, 1985 the Company's pro- posal was not a full and complete collective-bargaining agreement. 21. The Company never asserted a "take it or leave it" position during the bargaining. 22. No single company proposal on its face constitutes "bad faith" bargaining, or a proposal to which "no self respecting union" would agree. 23. The length of the contract proposed by the Com- pany exceeded a date 12 months from the Union's certifi- cation. The Union objected to paragraphs 4, 6, 12, 16, 18, 20, and 21 of the stipulation. With respect to paragraph 4, while Respondent may not have been willing to sit on a day-to-day basis, the record demonstrates that many meetings lasted in excess of 3 hours and that Respondent made a reasonable accommodation with respect to the scheduling of meetings . Concerning paragraph 18, as stated above, the record indicates that by letter dated December 17 the Union contacted the mediator. Howev- er, in the letter there was no offer by the Union to resume negotiations or discussions. On the contrary, the letter pointed out that the Union will not make any fur- ther concessions . Based on the entire record , I find that the evidence supports the stipulations entered into by the General Counsel and Respondent. The Union has not ad- duced sufficient evidence to sustain its objections. 5. Juan Vasquez In 1982 Juan Vasquez started an organization of em- ployees called Syndicato, of which he was president. Employee Resto testified that he was told by Vasquez that Morales, Respondent's plant manager, told Vasquez that "negotiations were going to be prolonged for more than a year to ask for new elections between the compa- ny" and the Syndicato. Resto also testified that Vasquez had freedom to move from place to place in the plant and that he would often see Vasquez speaking with Mo- rales. Salcedo, another employee, testified that he heard Vasquez say that "the company was going to sit down with the union and that he wouldn 't accept more than five or ten cents raise. And that with the syndicate he would be able to get 50 cents." The record shows that although Vasquez worked in building 4, he was required on a daily basis to deliver and pick up production reports in other buildings. In addition, Vasquez was required to visit building 1 at least eight or nine times a week to dis- lodge backups on the conveyor belt. 6. Withdrawal of recognition and unilateral changes By letter dated December 16, Jose Linares, an attor- ney representing a group of Respondent's employees, wrote to Morales requesting information as to why an annual increase was not given to the employees. Re- 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent forwarded the letter to its attorney, Jerold Glassman, for a response. By letter dated December 31, Glassman responded to Linares stating that Respondent had offered the Union a January 1, 1986 wage increase in a bargaining proposal dated September 10. After a fur- ther inquiry by Linares, on February 26, 1986, Glassman advised Linares that he was unable to provide any more information regarding the wage increase and suggested that Linares direct any further inquiries to the Union. By letter dated March 27, 1986, Linares forwarded to Glassman an employee petition, which stated: The following employees of the Hartz Mountain Corporation, 305 Broadway, Jersey City, New Jersey presently represented by District 65, U.A.W. no longer wish to be represented by the above union. The petition contained 141 signatures and listed social se- curity numbers or timecard numbers and department. The signatures were dated from March 4, 1986, through March 11, 1986. During the two pay periods covering the dates of the signatures Respondent employed ap- proximately 230 bargaining unit employees. Glassman sent the petition to Respondent and request- ed that the signatures and social security numbers be verified and to check whether the signators were em- ployed by Respondent. Maria Frey, who was then the assistant personnel manager, credibly testified that she compared the signatures on the petition against those found in the employees' personnel files. She authenticat- ed all but four signatures and returned the petition and her findings to Morales. In its answer Respondent admits that in March 1986 it withdrew recognition of the Union as the exclusive col- lective-bargaining representative of the unit. Respondent also admits that on April 23, 1986, it announced the im- plementation of a general wage increase beginning May 2, 1986, retroactive to January 6, 1986. Respondent fur- ther admits that on November 17, 1986, Morales told employees that he did not know whether there would be a wage increase in January 1987 and that employees did not receive a wage increase in January 1987. In addition, Respondent admits that on November 17, 1986, Morales advised unit employees that they would not be permitted to use sick leave for absences on December 24 or 26, 1986. In accordance with this policy, Respondent further admits that on December 24, 1986, it implemented the change, resulting in a disciplinary suspension of Louise Johnson and the issuance of warnings to other employ- ees. Discussion 1. Vasquez The General Counsel introduced the testimony of Resto, who testified that Vasquez said that Morales had told him that the negotiations were going to be pro- longed for more than a year so that the Company and the Syndicato could have another election. At the time of the introduction of the testimony the General Counsel understood that if it were not shown that Vasquez was an agent of Respondent, Resto's testimony would be stricken as inadmissible hearsay. Citing Conair Corp., 261 NLRB 1189, 1252 fn. 300 (1982), enfd. in part 721 F.2d 1355 (D.C. Cir. 1983), the General Counsel argues that Vasquez should be considered an agent of Respondent within the meaning of Section 2(13) of the Act because he had "free run of the plant." I believe, however, that Conair is distinguishable. In that case the "agent" made his statements on occasions accompanied by, and, at times, concurred in by, his supervisor. In the instant pro- ceeding the record does not support a finding that any supervisor had knowledge of Vasquez' remarks.4 As the Board stated in Community Cash Stores, 238 NLRB 265 (1978), the critical issue in making the determination whether a nonsupervisory employee is acting as an agent for the company is "whether under all the circumstances the employees would reasonably believe" that the nonsu- pervisory employee "was reflecting company policy and speaking and acting for management." Vasquez was the president of a rival group of employees, the Syndicato. The record shows that as part of his job duties he was required to move from building to building. I believe that employees would reasonably expect Vasquez' state- ments to reflect his own interest in promoting the Syndi- cato. Thus, it is entirely reasonable for Vasquez to have puffed that the Company would wait for the certification year to expire so that the Syndicato could file a petition for a new election. I find that the General Counsel has not sustained her burden of showing that Vasquez was an agent of Respondent. See Plessey Materials Corp., 263 NLRB 1392, 1401 (1982). Accordingly, Resto's testimo- ny concerning Vasquez' statement is stricken as inadmis- sible hearsay.5 2. Surface bargaining In Boaz Carpet Yarns, 280 NLRB 40, 43 (1986), the Board stated: Section 8(d) of the Act requires that employers and their employees' representatives meet at reason- able times and confer in good faith with respect to wages, hours, and other terms and conditions of em- ployment. The obligation does not require the par- ties to agree on proposals, for the Act does not compel an employer or employee representative to make a concession on a specific issue or adopt a particular position. To determine whether a party has met its statutory obligation to make a reasona- ble, good faith effort to resolve its differences with its bargaining counterpart and incorporate agreed- upon terms in the contract, the Board will examine the party's overall conduct. [Footnote omitted.] The complaint alleges that Respondent engaged in sur- face bargaining through dilatory bargaining tactics, by * In addition, the agent in Conair committed numerous violations of Sec 8(a)(1). In the instant proceeding, however , there is no allegation that Vasquez' statements violated the Act. 5 With respect to Salcedo's testimony, quoted earlier, the General Counsel conceded that even were Vasquez deemed an agent of Respond- ent, Salcedo's statement was not expressly attributed to management. HARTZ MOUNTAIN CORP. 425 putting forth bargaining proposals designed to undermine the Union's role as exclusive bargaining representative of the unit and by proposing restrictive bargaining propos- als representing adverse changes to existing working conditions. The General Counsel contends that the dila- tory bargaining tactics consisted of prolonged question- ing by Respondent and delay in submitting its proposals and making information requests. The General Counsel contends that Respondent's pro- longed questioning of each provision of the Union's pro- posed contract indicates Respondent 's bad faith. I dis- agree. At the second bargaining session , held on August 21, 1984, Respondent suggested that the parties review seriatim each proposal for clarification , and discuss all questions as they arose . The Union agreed to this proce- dure. Indeed, at the fifth bargaining session, held on Oc- tober 18, 1984, Union Representative Joseph Fine stated that Respondent's questions thus far had made the Union realize that its draft contract language was not written as intended in every instance . After a discussion concerning the Union's vacation proposals Fine conceded that Re- spondent's questions had revealed flaws in the Union's proposed language and, accordingly, the Union modified its proposal concerning vacations . At the sixth bargain- ing session, held on November 29, 1984, Glassman an- nounced that he was appointed to take the place of Re- spondent's prior counsel . To avoid disruption in the ne- gotiations Glassman suggested that the parties continue to follow the previously established procedure of review- ing the Union's contract clauses seriatim, to clarify areas of ambiguity. The Union voiced no objection and agreed to continue the question and answer process. At the eighth bargaining session, held on January 28, 1985, the parties continued to discuss various contract proposals and the meeting adjourned with Eisner remarking that it had been a "fruitful" session. The examination and review of the Union's initial contract clauses was com- pleted at the 10th bargaining session, held on February 19. A review of the record convinces me that Respond- ent's questions were for the purpose of a complete un- derstanding of the Union's proposals and did not consti- tute bad-faith bargaining. The General Counsel argues that Respondent 's delay in submitting counterproposals constituted a dilatory bar- gaining tactic . The Union's suggested contract language was submitted on a piecemeal basis. At the end of the August 21, 1984 meeting the Union offered a proposal which was missing language on 10 proposed articles. On August 27, 1984, the Union forwarded language covering six proposals and on September 5, 1984, the language for the last four articles, minus a wage proposal, was mailed to Respondent. As pointed out above, on October 18, 1984, during the fifth bargaining session, Joseph Fine stated that Respondent's questions made the Union real- ize that its proposed contract language was not written as intended in every case. The Union then modified its proposals concerning recall rights , overtime, call-in pay and vacation. At the session held on November 29, 1984, Glassman, Respondent's newly appointed counsel, ex- plained that once the review of the Union's proposals was completed Respondent would present its formal counterproposals . As previously stated, the Union voiced no objection and agreed to continue the question-and- answer period. The parties continued to review the Union's proposals on December 13, 1984 , and January 28 and February 7, 1985. At the January 28 meeting the Union asked Respondent to submit a counterproposal and on February 19 Respondent presented the Union with a comprehensive counterproposal . As stated above, I believe it was reasonable for Respondent to secure an- swers from the Union on the Union's proposals before submitting its counterproposal . As soon as the questions were concluded Respondent submitted its counterpropos- al. I find, therefore, that Respondent did not unreason- ably delay submitting its counterproposals. The General Counsel contends that Respondent's delay in requesting pension information is evidence of its dilatory tactics. On April 11, as the parties approached the issue of health insurance, Respondent requested in- formation from the Union on its health and welfare pro- posal . While the Union collected the requested informa- tion the parties continued to negotiate and met on April 16 and 25 and May 2. At each of these bargaining ses- sions Respondent submitted revised counterproposals which narrowed the issues . As a result, as of May 2, agreement had been reached on 13 articles. I find that the General Counsel has not demonstrated that Respond- ent's request for information unduly delayed the bargain- ing or is evidence of bad faith. The complaint alleges that Respondent submitted bar- gaining proposals designed to undermine the Union's role as exclusive bargaining representative of the unit. Para- graph 22 of the stipulation between the General Counsel and Respondent, to which the Union has not objected, provides that no single company proposal on its face constitutes a proposal to which "no self respecting union" would agree . Respondent's counterproposals rec- ognized the Union as the exclusive representative of the bargaining unit, prohibited discrimination based on union membership, granted the union visitation rights and bul- letin board privileges, recognized the union shop steward and agreed to a grievance procedure culminating in bind- ing arbitration to resolve contractual and disciplinary dis- putes . Each of these provisions establishes significant union rights and bolsters the Union's statutory authority as bargaining representative. I find that the General Counsel has not sustained her burden of showing that Respondent's proposals were designed to undermine the Union's role as the exclusive bargaining representative. Finally, the complaint alleges that Respondent pro- posed numerous restrictive bargaining proposals repre- senting adverse changes to existing working conditions at the Jersey City facility . It is not unlawful for an employ- er, as part of its bargaining tactics, to make a proposal which offers less than its employees are presently receiv- ing. As stated by the Board in Roman Iron Works, 275 NLRB 449, 452 (1985): [C]ollective bargaining is basically a two-way street. Thus while a union may lawfully make demands de- signed to improve existing employee wages and benefits, there is nothing in the Act which denies an employer the right, for its part, to demand give- backs. Where the parties are negotiating to replace 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a prior contract, neither side is precluded from seeking modifications to its own advantage. The Act simply does not preclude an employer from de- manding that various provisions of the old contract be modified, altered, or even eliminated. In addition, in Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), the Board stated: It is necessary to scrutinize an employer 's overall conduct to determine whether it has bargained in good faith. "From the context of an employer's total conduct, it must be decided whether the em- ployer is lawfully engaging in hard bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of arriving at any agreement." A party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree. [Footnote omitted.] In determining whether an employer maintains a firm stand in good faith, the Board will consider whether the employer defined, explained and advocated its position instead of attempting to thrust provisions on the Union in a "take it or leave it manner." Ampac, 259 NLRB 1075, 1084 (1982). Here the "company explained, advo- cated and gave reasons for its position on each unre- solved item."a Thus, with respect to the proposal con- cerning the floating workweek Respondent explained during negotiations that its customers' needs and oper- ations had changed significantly since the last time a col- lective-bargaining agreement was negotiated in 1974. During that time the nature of the Jersey City operations had changed from a production to a distribution facility. Therefore, the proposed contractual changes were dictat- ed by marketplace and business considerations . Concern- ing holiday pay Respondent explained at the negotiations that the reason it proposed that employees work the full scheduled week in which a holiday falls to be eligible for holiday pay is because Respondent was experiencing high absenteeism during holiday weeks. The criteria for finding bad-faith bargaining were stated by the Board in Atlanta Hilton & Tower, supra, 271 NLRB at 1603, as follows: Although an adamant insistence on a bargaining position is not of itself a refusal to bargain in good faith . . . other conduct has been held to be indica- tive of a lack of good faith. Such conduct includes delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargain- ing, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, with- drawal of already agreed-upon provisions, and arbi- trary scheduling of meetings. None of these indicia is present here. [Footnotes omitted.] 6 Stipulation, par 11. This paragraph was not objected to by the Union. Similarly, in the instant proceeding , none of the indicia stated in Atlanta Hilton & Tower is present. The Act does not require the parties to agree on a proposal or make concessions on a specific issue or adopt a particular posi- tion. Boaz Carpet Yarns, supra. The adherence by Re- spondent to its position on the few remaining open items is no more an indication of bad faith or unlawful conduct than the Union's failure to abandon its position on those same issues. In analyzing the entirety of Respondent's conduct I find that its approach to bargaining was cooperative and that it provided information requested and counterpro- posals in a timely manner. It is not alleged, nor does the record show, that Respondent imposed any substantial, unilateral changes in working conditions during the course of negotiations. See Boaz Carpet Yarns, supra. Re- spondent was willing at all times to meet and bargain with the Union, attended all scheduled meetings, fulfilled its procedural obligations, exchanged proposals and agreed to meet with a mediator. See Reichhold Chemi- cals, 288 NLRB 75, 76 (1988). During the course of 25 bargaining sessions held with the Union over a 13-month period Respondent made concessions which led to agree- ment between the parties on a substantial majority of the contract including union recognition , union visitation, stewards, management rights, grievance procedure, arbi- tration, vacations, health and life insurance , sick leave, plant closings, and severance . In addition, the parties agreed to portions of contractual provisions concerning wages, hours of work, seniority, holidays, no-strike and no-lockout, and leaves of absence. Based on the above, I find that Respondent did not demonstrate the kind of "intransigence or insistence on extreme proposals which is evidence of an overall intent to frustrate the collective-bargaining process." Reichhold Chemicals, supra at 76. Accordingly, I conclude that Re- spondent did not engage in surface bargaining in viola- tion of the Act. 3. Withdrawal of recognition and unilateral changes The law is well settled that, absent unusual circum- stances, a union is irrebuttably presumed to enjoy majori- ty status during the first year following its certification. On expiration of the certification year, the presumption of majority status becomes rebuttable . Pennco, Inc., 250 NLRB 716 (1980), enfd. 684 F.2d 340 (6th Cir. 1982); Master Slack Corp., 271 NLRB 78, 84 (1984). An em- ployer who wishes to withdraw recognition from a certi- fied union after the first year may rebut the presumption of majority status in either of two ways : (1) By showing that on the date recognition was withdrawn the union did not in fact enjoy majority support , or (2) by present- ing evidence of a sufficient objective basis for a reasona- ble doubt of the union 's majority status. Master Slack Corp., id. The Union's certification became effective on June 25, 1984. Accordingly, as of June 25, 1985, the Union's pre- sumption of majority status became rebuttable. On March 27, 1986, a petition containing 141 signatures out of a total of 230 bargaining unit employees was submit- ted to Respondent. The petition stated that the employ- HARTZ MOUNTAIN CORP. 427 ees no longer wished to be represented by the Union. Respondent authenticated the signatures of 137 of the 141 employees who signed the petition. The law is also well settled that an employer may not avoid its duty to bargain by relying on a loss of majority status attributable to its own unfair labor practices. Master Slack Corp., supra, 271 NLRB at 84. The only al- legations in the complaint of an unfair labor practice oc- curring prior to the withdrawal of recognition were the allegations concerning surface bargaining . I have already found that Respondent was not guilty of surface bargain- ing. In addition, the General Counsel produced two wit- nesses, Ruiz and Lopez, each of whom testified that Vas- quez asked them to sign a "paper" to obtain a raise. Nei- ther of the witnesses was able to identify the document they were asked to sign as the petition . Furthermore, I have already found that the General Counsel has not sus- tained her burden of showing that Vasquez was an agent of Respondent. I find that Respondent lawfully withdrew recognition from the Union when it received the petition in late March 1986 signed by a majority of the bargaining unit employees indicating that they no longer wished to be represented by the Union . See Burger Pits, 273 NLRB 1001, 1002 (1984), affd . 785 F.2d 796 (9th Cir. 1986); Wil- shire Foam Products, 282 NLRB 1137 (1987 ); Boaz Carpet Yarns, supra; Bennington Iron Works, 267 NLRB 1285, 1286 (1983). Inasmuch as Respondent lawfully withdrew recognition before it instituted the unilateral changes in the terms and conditions of employment alleged in the complaint, Respondent did not violate Section 8(a)(5) of the Act. See Gulf States Mfrs., 287 NLRB 26 (1987); Boaz Carpet Yarns, supra; Master Slack Corp., supra at 85 (1984).7 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed" ORDER The complaint is dismissed in its entirety. 7 With respect to pars . 17, 19, and 24 of the complaint , the General Counsel presented no evidence to sustain the allegations that Respondent violated Sec . 8(a)(3) of the Act. Concerning par. 14 of the complaint, Re- spondent denied that it advised unit employees that the Union was re- sponsible for the lack of a wage increase in January 1986. I find that the General Counsel did not sustain her burden of proving the allegation. Par. 16 of the complaint alleges that Respondent implied that the Union was responsible for employees not receiving the January 1987 wage in- crease. Respondent denied the allegation and the stipulated testimony of Johnson and Consuello does not controvert the denial . I find therefore that here, too, the General Counsel did not sustain her burden of proving the allegation. Accordingly, the allegations are dismissed. a 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.