American Model & Pattern, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1985

277 N.L.R.B. 176 (N.L.R.B. 1985)

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Model & Pattern, Inc. and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW.
Cases 7-CA-21643, 7-CA-21722, and 7-CA-
22296
Joseph A. Barker, Esq., for the General Counsel.
Lawrence J Breskin, Esq., of Detroit, Michigan, for the
Respondent.
James H. Sawyer, International Representative of
Warren, Michigan, for the Charging Party.
31 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 27 February 1985 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, American
Model & Pattern, Inc., St. Clair Shores, Michigan,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 Although Chairman Dotson agrees with his colleagues that the Re-
spondent's response to the Union's economic demands was equivalent to
a claim of financial inability to pay, he would find that the Respondent's
refusal to furnish the Union with the requested financial information con-
cerning the Respondent's Mt Clemens plant was not unlawful Because
the Union did not represent any of the Mt. Clemens plant employees, the
requested information was not presumptively relevant. Ohio Power Co,
216 NLRB 987 (1975), enfd 531 F.2d 1381 (6th Cir 1976) The request
was based solely on the Union's speculation that the Respondent might
have allocated to the St Clair Shores facility costs incurred by the Mt
Clemens plant in order to distort the financial picture There is no specif-
ic evidentiary basis for this speculation Accordingly, Chairman Dotson
would find that the Union has not established the relevance of the re-
quested information regarding the Mt. Clemens plant See Bohemia, Inc,
272 NLRB 1128 (1984).
8 We do not adopt that portion of the judge's recommended remedy
which provides that in computing the interest owed employees on the
unlawfully discontinued IRA contributions the tax benefits lost by em-
ployees should be taken into account.
To the extent that the Respondent has already reinstated unlawfully
laid-off employees and/or has bargained in good faith to impasse or
agreement about the unit employees' unlawfully changed terms and con-
ditions of employment, the relevant affirmative obligations in the Order
will have been satisfied.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Detroit,
Michigan, upon a consolidated unfair labor practice com-
plaint,' issued by the Regional Director for Region 7 of
the National Labor Relations Board and amended at the
hearing, which alleges that the Respondent, American
Model & Pattern, Inc.,2 violated Section 8(a)(1), (3), (4),
and (5) of the Act. More particularly, the consolidated
complaint alleges that the Respondent threatened reprisal
against laid-off employees because the Union filed an
unfair labor practice charge; unilaterally discontinued its
past practice of making annual Individual Retirement
Act (IRA) contributions to employees having more than
3 years' service without bargaining to impasse with the
Union over the change; unilaterally granted individual
wage increases to employees which were not negotiated
in good faith with the Union and which were inconsist-
ent with general wage offers made in the course of col-
lective-bargaining sessions; laid off employees Paul Har-
rington, Duane Devereaux, Nelson Bewley, Fredrick
Ozga, and Louis Nagy without giving the Union suffi-
cient notice and a meaningful opportunity to bargain
over the manner in which employees were to be selected
for layoff; and refused to give the Union requested finan-
cial data to support its claim that it was unable to meet
the Union's bargaining demands. The consolidated com-
plaint further alleges that the layoffs of Harrington, De-
vereaux, and Bewley were made in reprisal for union ac-
tivities in which those employees had engaged, and that
the layoffs of Harrington and Bewley were also in retal-
iation for testimony given by those employees at a previ-
I The principal docket entries in this case are as follows.
Charge filed herein by International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America, UAW (the
Union) against the Respondent in Case 7-CA-21643 on January 17, 1983,
charge filed herein by the Union against the Respondent in Case 7-CA-
21722 on February 4, 1983, charge filed herein by the Union against the
Respondent in Case 7-CA-22296 on March 4, 1983; consolidated com-
plaint issued against the Respondent by the Regional Director on March
4, 1983; the Respondent's answer filed on March 8, 1983, amended con-
solidated complaint issued against the Respondent by the Regional Direc-
tor on August 3, 1983; hearing held in Detroit, Michigan, on September
11, 12, and 13 and October 1, 1984, briefs filed with me by the General
Counsel and the Respondent on or before November 5, 1984
2 Respondent admits, and I find, that it is a Michigan corporation
which operates a place of business in St. Clair Shores, Michigan, where it
is engaged in the production, nonretail sale, and distribution of plastic in-
jection molds. During the calendar year ending December 31, 1982, a
representative year, the Respondent purchased directly from points and
places outside the State of Michigan and caused to be transported to its
St. Clair Shores, Michigan place of business goods and materials valued
in excess of $50,000 Accordingly, the Respondent is an employer en-
gaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act The Union is a labor organization within the meaning of Sec 2(5) of
the Act
277 NLRB No. 18
AMERICAN MODEL & PATTERN
ous unfair labor practice proceeding (Case 7-CA-20135).
The Respondent denies making any threats of reprisal for
the filing of charges, asserts that it offered to bargain
concerning the layoffs and its failure to make an IRA
contribution in 1982, and denies that it was under an ob-
ligation to bargain over its failure to make IRA contribu-
tions since its past practice in this regard was to treat
such contributions as wholly discretionary and contin-
gent upon annual earnings . The Respondent asserts that
it notified the Union and gave it an opportunity to bar-
gain over layoffs, asserts that all layoffs were economi-
cally motivated, and denies that the selection of individ-
uals for layoff was discriminatory or made in reprisal for
testifying in a Board proceeding. The Respondent also
entered a general denial concerning the amendment to
the consolidated complaint respecting individual wage
increases made in the summer of 1984, but effectively ad-
mitted that certain of those increases were granted in
derogation of its duty to bargain with the Union. The
Respondent also denies that it "pleaded poverty" so as to
give rise to an obligation to furnish the Union financial
data in support of the Company's bargaining position,
but asserts in the alternative that the data it did in fact
provide was sufficient to satisfy the Union's request.
Upon these contentions the issues in this case were
framed.3
FINDINGS OF FACT
1. THE UNFAIR LABOR PRACTICES ALLEGED
The Respondent operates two facilities, a production
plant in Mt. Clemens, Michigan, where it manufactures
items from molds which it produces, and a shop at St.
Clair Shores, where it constructs the molds. The St.
Clair Shores plant, the only one involved in this litiga-
tion, is divided into a wood shop and a metal shop. The
wood shop employees are represented by the Warren
Pattern Makers Association. The metal shop, wherein
the present disputes took place, is represented by the
Charging Party UAW. About 12-15 employees are em-
ployed in the metal shop.
The facts surrounding the UAW organizing campaign
in the metal shop are set forth in detail in the Board's
decision in American Model & Pattern, 269 NLRB 309
(1984). This decision was issued-on March 21, 1984, and
is referred to herein as American Model I. Upon a peti-
tion filed by the UAW on November 6, 1981, a represen-
tation election was held on December 9, 1981, which the
Union won. It was certified on March 25, 1982 (Case 7-
RC-16581). Immediately following the election, Paul
Harrington, a discriminatee in this case, was laid off in a
layoff which temporarily removed from the Respond-
ent's payroll 9 of its 16 bargaining unit employees. Har-
rington was the in-house leader of the organizing drive.
The Board found in American Model I that Harrington
was discriminatorily selected for layoff. It ordered a rein-
statement remedy with backpay, By the time this order
was issued in 1984, Harrington had been reinstated, laid
off again, reinstated a second time, and had quit. The
Board also found the Respondent was guilty of several
a Certain errors in the transcript have been noted and corrected.
177
violations of Section 8(a)(1) of the Act and issued an
order suppressing these kinds of violations.
On June 7, 1982, some 6 months after the election and
more than 2 months after the certification of the Union,
the parties to this proceeding began a process of collec-
tive bargaining which lasted more than 1-1/2 years, i.e.,
until February 7, 1984, without arriving at a contract.
No bargaining sessions have taken place since that time.4
All of the sessions took place at the regional office of
region I of the UAW in Warren, Michigan. With the ex-
ception of meeting number eight, which occurred on
September 15, 1982, the lead negotiator for the Union
was International Representative James H. Sawyer. He
was assisted by an elected bargaining committee com-
posed of Harrington, Arvin Scheffler, and former em-
ployee Larry Thomas. Discriminatee Duane Devereaux
attended one session in November, 1982, in place of
Scheffler. The lead negotiator for the Company was At-
torney David Gunsberg, flanked by Company President
Karl Blankenburg and Company Vice President Edward
G. Sobolewski.
On November 1 and 2, 1982, a hearing took place in
Detroit with respect to the 1981 layoff of Harrington, as
well as the other allegations in the earlier complaint. By
this time, Harrington had returned to work, although he
was employed on the night shift rather than on the shift
he formerly worked. At this hearing, Harrington testified
in his own behalf. Current alleged discriminatees Nagy,
Ozga, and Bewley also testified in support of that com-
plaint.
I credit Sawyer's testimony that on Friday, January 7,
1983, just 3 days before the 16th scheduled meeting be-
tween the parties, he received a phone call at his office
from Gunsberg shortly after midday. Gunsberg told
Sawyer that the Company was going to lay off four indi-
viduals on that day and was informing him of this fact as
a courtesy. When asked who they might be, Gunsberg
told Sawyer that he did not know but that the layoff
would take two from the day shift and two from the
night shift, leaving eight employees still working.
Sawyer asked Gunsberg why the layoff was taking place
and was told that business was getting tough. Sawyer ob-
served that this was a legitimate reason for a layoff.
Later that afternoon, the five discriminatees named in the
consolidated complaint were informed by their foreman
that they would be laid off at the end of the day.
Just before the beginning of the bargaining session the
following Monday, Sawyer was informed by members of
the shop committee that five, not four, employees had
been laid off. He was also told which five were laid off.
At the outset of the January 10, 1983 negotiations, the
parties discussed the layoff and the reasons each employ-
ee was selected while another was retained. The Re-
spondent admitted that it did not follow seniority in se-
lecting employees for layoff. (It maintained in the earlier
4 Negotiations in 1982 took place on June 7 and 17, July 17 and 24,
August 10, 18, and 26, September 15, 21, and 30, October 6, November
16, 22, and 23, and December 8 In 1983 the parties met on January 10
and 31, February 16, March 2, 8, and 14, April 5 and 19, July 13, and
December 15. One meeting took place in 1984 and it was held on Febru-
ary 7
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, as it did throughout this proceeding , that it does
not and has never observed seniority with respect to lay-
offs and recalls.) The parties first discussed the `reason
Bewley, a truckdriver, had been laid off in preference to
Russell Champagne, another truckdriver with less senior-
ity. The reason given by the Company for the retention
of Champagne was that Champagne was earning 75
cents per hour less than Bewley.
The discussion then moved to an inquiry as to why
Harrington and Devereaux, both moldmakers, were laid
off in preference to Gary Macha and Gary Vican, who
were classified either as moldmaker or moldmaker train-
ee and who had less seniority than Harrington and De-
vereaux. The reason given by the Company for the re-
tention of Vican was that he was the son-in-law of Com-
pany President Blankenburg, while Macha was retained
because he assertedly possessed certain training in ship-
ping, receiving, and ordering parts. Company spokesmen
also observed that Scheffler, a member of the Union's
bargaining committee, had been retained in preference to
Harrington and Devereaux, despite the fact that he had
less seniority, because Scheffler was a more skilled em-
ployee than either Harrington or Devereaux.s
Throughout this discussion the Union insisted that se-
niority in each job classification should control the layoff
of individuals. Sawyer asked the Company what stand-
ards did apply to selection for layoff if seniority did not,
arguing that the Company had, in its justifications, pre-
sented several different standards for selection. He main-
tained that Devereaux and Harrington had the same
skills as any other moldmaker so seniority should govern
the selection of moldmakers for layoff. Sawyer said that
never in his experience had he heard a proposal that an
individual should be laid off because he was making
more money than an employee who had been retained.
He insisted that the layoff be conducted with regard to
seniority and that the Company rectify the selection of
employees it had laid off the previous Friday. The Com-
pany declined to change any of the layoffs so the discus-
sion turned to other subjects of negotiation.
Throughout the past 10 years or more the Company
has followed a practice of awarding annual bonuses in
varying amounts to bargaining unit employees. The
amounts of the bonuses have varied not only from em-
ployee to employee but also from year to year. Normally
the bonus payments were made in late December and
were reflected on employee W-2 forms for the closing
year, a practice which had the obvious purpose of per-
mitting the Respondent to deduct bonus payments in
computing its own business expenses and income tax li-
ability for the outgoing year. Records placed in evidence
by the Respondent reflect that bonus payments were reg-
ularly made to all unit employees regardless of their
length of service.
About 1976 the Respondent's pension plan experienced
legal difficulties and was discontinued. About this same
point in time statutory authorization came into effect per-
5 It should be noted that, despite the Company's contention that
Scheffler was a more skilled moldmaker than either Harrington or De-
vereaux, he was then earning a much lower hourly rate than either of
them
mitting the establishment of IRA's which were tax
exempt to the recipient until,such time as he might with-
draw the money from his IRA account. At that time the
statutory limitation on IRA accounts was $1500 per year,
although that figure has since been raised to $2000.
There is also a second limitation on contributions to IRA
accounts based on the percentage the contribution bears
to an employee's total earnings . Beginning in 1976, the
Respondent inaugurated a policy of making yearend con-
tributions to employee IRA accounts in addition to
making immediately taxable bonus payments . Two limita-
tions pertained to IRA contributions. They were limited
by statute as to amount, and the Respondent elected to
make such payments only to those bargaining unit em-
ployees who had 3 or more years' service. Between 1976
and 1981 , the Respondent regularly made $1500 contri-
butions (or contributions up to the legal maximum) every
year to every bargaining unit employee who had 3 or
more years' service. Payments were made by the Re-
spondent directly to IRA accounts which it had estab-
lished in the National Bank of Detroit in each employ-
ee's name. Sometime in early January of each year the
employee would be furnished by the Company with a
certificate reflecting the fact that a $1500 contribution
had been made to his account.
At the January 10, 1983 negotiations, after the parties
had concluded their discussion of the layoffs, Gunsberg
announced that there would be no IRA payments for
1982 because the Company had experienced a bad year.
He added that there would be sufficient time to bargain
over this issue before January 24, although he did not ex-
plain the significance of that deadline.6 Gunsberg noted
that the Company had been making a maximum contri-
bution in the past and it presently did not choose to
spend money in that area. Sobolewski added that 1982
sales were down 50-55 percent and that losses for the
year were $70,000, so the Company was opposed to
wage or benefit increases. He did not have their Decem-
ber figures as yet and did not know when they would be
available, but they wanted to get their December figures
in before deciding on current benefits. They agreed to
another meeting when this session broke up, but no date
or time was established.
Two days later, Sawyer called Sobolewski twice to ar-
range for another meeting. Sobolewski replied that he
had not been able to contact Gunsberg. Sawyer accused
Sobolewski of giving him a runaround and threatened to
file unfair labor practice charges unless Sobolewski re-
plied to his request for a meeting within an hour. A
meeting was finally set up for January 31, 1983, at 4 p.m,
6 In response to questioning by me at the hearing, Gunsberg responded
that January 24 was the date the Company normally prepared W-2 forms
for distribution to its employees He conceded that the date had no par-
ticular significance as far as IRA payments were concerned and was
mentioned as a date of convenience rather than legal or practical necessi-
ty From the employee's standpomt, an IRA contribution can be made at
any time until April 15 and retain its tax adjustment value for the preced-
ing taxable year Instead of appearing on the W-2 form for 1982, which
was being prepared on January 24, 1983 , a payment made in 1982 , either
before or after April 15, would be reflected on each 1983 W-2 form pre-
pared the following year
AMERICAN MODEL & PATTERN
On January 17, Sawyer filed the first of three unfair
labor practice charges. This charge focused on the lay-
offs of five employees on January 7. On January 22,
shortly after receiving a copy of the charge, Blanken-
burg and Sobolewski held a brief meeting of unit em-
ployees during which they discussed the charge that had
just been filed . They had a copy of the document with
them and were obviously angry. Blankenburg told the
assembled employees that every time they did "some-
thing like this," it cost the Company $ 125 an hour in
legal fees. Blankenburg complained that it even cost the
Company money whenever he picked up the phone to
call his lawyer. He told the employees that they and the
Company would have to work together if they wanted
to see any of the laid-off employees recalled because,
when it cost the Company money, it was going to cost
the employees as well. Sobolewski added that he thought
it was really underhanded for Sawyer to file the charge
because the parties had discussed the layoff at the Janu-
ary 10 meeting . He explained that, at that time, the Com-
pany had outlined to the Union why some employees
had been laid off while others had been retained , and ex-
pressed the opinion that the matter had thus been re-
solved.
The next bargaining session on January 31 was short
lived. It was the 17th meeting between the parties and
was the first one to be conducted under the auspices of a
Federal mediator . As is often the case in such sessions,
the mediator kept the parties in separate rooms and went
back and forth transmitting proposals and counterpropos-
als. The issue under consideration at this time was the
management-rights clause. The mediator apparently had
informed Sawyer that the Company had agreed upon the
text of a pending draft and Sawyer asked to have man-
agement representatives initial the draft. When Gunsberg
learned of this request , he became angry and got up and
left. Sobolewski went after him in an attempt to persuade
him to return. Sobolewski was unsuccessful , so the 17th
meeting between the parties ended on this note.
Despite the abrupt ending of the January 31 meeting,
negotiations resumed on February 16 and continued into
the spring . From the outset of negotiations in the
summer of 1982, the parties , at the Company 's request,
had discussed noneconomic matters first before address-
ing economic proposals . Early in negotiations, proposals
and counterproposals containing economic items had
been exchanged , but they did not constitute the sub-
stance of any detailed discussions.
One sticking point was seniority . Throughout discus-
sions, the Company refused to agree to allow seniority to
control the layoff, assignment, or recall of employees.
The Union was equally insistent . At the one negotiating
session which Sawyer did nol attend, his place was taken
by UAW Local 155 President Richard Karas. Karas ex-
pressed amazement at the Company 's position on seniori-
ty and said that he had never heard of a UAW contract
which did not contain a seniority provision . He noted
that there were people on layoff, notably Larry Thomas,
who had more seniority than employees who were work-
ing. The Company explained that the Pattern Makers
contract for the wood shop did not provide for seniority.
Instead, the Pattern Makers operated a hiring hall. Karas
179
told company negotiators he would leave the matter to
Sawyer since he was just filling in for one meeting.
In fact, the Company did agree that seniority should
govern the entitlement to certain benefits but it did not
refer to longevity in such circumstances as seniority but
rather as "benefit entitlement ." The Company also re-
fused to agree to any provision requiring it to make IRA
payments in any amount, maintaining that such payments
were and should remain "discretionary." At one time
Sawyer proposed that the Company make annual $1500
contributions to IRA accounts. When the statutory limi-
tation on IRA contributions was raised to $2000 per
year, Sawyer proposed this sum for an annual IRA con-
tribution by the Company, but the proposal was rejected.
At the 23d negotiating session, held on April 19, the
Union requested that all laid-off employees be reinstated
and be made whole for losses sustained as a result of the
layoff. As an unfair labor practice complaint had been
issued by this time, such a proposal was as much an offer
to settle the Board case as it was a matter of contract
negotiation. The offer was not agreed to but, within the
next month or so, all employees who had been laid off
on January 7 had been recalled.
The Union also made a wage proposal and a proposal
regarding classifications at this meeting . It should be
noted that, until this time, the Company observed several
classifications of employees but, unlike many personnel
systems or contract provisions, these job classifications
had no wage rates attached to them. Hourly wage rates
were essentially personal for each unit employee. Guns-
berg then offered the Company's wage proposal. The
offer was to cut all bargaining unit wages during the first
year of the contract by 15 percent, excepting only
Scheffler, who would be "red circled"' at $9 per hour.
Gunsberg explained that profits were down and that the
Company could not continue to pay existing rates and
remain competitive. He told the union negotiators that
company prices were too high because its labor rates
were too high for the existing market, and the Company
was having difficulty attracting business . Gunsberg also
proposed that the proposed reduction be partially re-
couped by 5-percent increases in the second and third
years of the contract. Sawyer then requested an audit of
company books to see if a wage cut was justified. He in-
formed company negotiators that he did not feel quali-
fied to evaluate financial records but noted that the
UAW had experts on its staff who were able to perform
such analyses. He asked that one such individual be per-
mitted to do so. The Company agreed, so it was left to
Sawyer to make arrangements for a UAW financial ana-
lyst to examine company records for this purpose.
Sawyer contacted George Schwartz, who was then
the assistant director of the UAW Research Department,
and requested his assistance in analyzing the Respond-
ent's financial records. On May 3, Sawyer wrote Sobo-
lewski a letter notifying him that Schwartz would be in
contact with him and agreeing to a meeting at company
offices on May 31 at 9:15 a.m. for the purpose of inspect-
ing financial records. On the following day, Schwartz
wrote Sobolewski a similar letter and enclosed a stand-
ard UAW form outlining the data which Schwartz re-
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired in order to make the requested financial analysis.
He stated in his cover letter, "I assume that your ac-
counting system will also generate separate data for each
plant."
The request form asked for corporate Federal income
tax returns for the preceding 3 years as well as audit re-
ports for the past 3 years, including complete balance
sheets, income statements, and supporting schedules. It
requested that such data be certified by an outside CPA.
The form also requested interim financial statements and
supporting schedules and indicated that it would be nec-
essary for the analyst to have access to books and
records of the Company, including the general ledger,
the payroll ledger, and the general journal. The form
stated "in the event there is another company related by
ownership that does business with this company, it might
also be necessary to review the financial statements of
that company as well." The form went on to detail par-
ticular information which the analyst might wish to
review in addition to books and records. Such informa-
tion included income statements, forecasts of monthly
and quarterly sales, capital expenditures and deprecia-
tion, new order backlogs, individual employment, a com-
pilation of bargaining unit hours worked and paid, cur-
rent average hourly earnings, a description of major
products, and sales data arranged by major customer and
market. In most cases, the information request extended
over more than 1 year's time. Schwartz had a telephone
conversation with Gunsberg about May 10. Gunsberg
was quite emphatic in telling Schwartz that he had not
agreed to a union audit of company records and that he
would not make available any backup information to
support the documents which might be supplied.
Schwartz indicated to Gunsberg that primary books and
records were necessary for any proper analysis of the
Company's financial condition., On May 27, Gunsberg re-
plied to Sawyer's letter. He stated:
This will reiterate the Company's prior offer
wherein the Company agreed to make available its
accountant who is in possession of a copy of the
Company's certified audit for the most recently
completed fiscal year in order for yourself or your
representative to review such audit and discuss such
audit with the Company's accountant. Please advise
when you wish to meet regarding the above. Please
notify Ed Sobolewski or the undersigned.
On May 31, Sawyer and Schwartz went to the Com-
pany's office to examine the requested records. Sobo-
lewski told them that he thought that the meeting had
been canceled and stated that he had only a few minutes
to give them. Sobolewski showed them a fairly detailed
profit-and-loss statement for the Prototype Division of
the Company for 1982. The statement was prepared by
an outside accounting firm but was not certified. Sobo-
lewski permitted Schwartz to review the document brief-
ly but he did not give him a copy or permit him to make
any notes concerning it. Sobolewski said he would make
the accountant available to discuss the statement with
Schwartz and would contact him to arrange a meeting.
Among the matters requested by Schwartz but not made
available were all items for years preceding 1982, any
income tax returns, and any primary company records.
About 2 ' weeks later, Sawyer filed an unfair labor
practice charge relating to the withholding of financial
information. Over the summer he was able to arrange a
second meeting between Schwartz and company officials
for the purpose of examining financial data. This meeting
did not take place until September 1, about a month after
an amended complaint was issued herein addressing the
financial data question. This meeting was attended by
Sawyer, Schwartz, Blankenburg, Sobolewski, and Com-
pany Accountant Mike Tarakis. At this meeting
Schwartz was handed the same 1982 profit-and-loss state-
ment for the Company's Prototype Division which be
had examined on May 31. He was also allowed to make
notes concerning the document. Schwartz was told that
the nature of the Respondent's accounting system would
not permit a complete breakdown of the St. Clair Shores
operation and there was no documentation to describe
how this operation fitted into the Respondent's produc-
tion operation at Mt. Clemens. Schwartz regarded such
information as most significant in determining the profit-
ability of the bargaining unit because, in a small or close-
ly controlled private corporation, the allocation of
shared expenses between units is largely discretionary
with management. He requested documentation on this
point but was given none. Schwartz also testified that an-
swers given by Blankenburg and Tarakis in response to
his questioning in this area differed considerably.
The last bargaining session between the parties took
place on February 7, 1984. At this time Gunsberg reiter-
ated the Company's earlier wage offer, namely, that the
bargaining unit employees take a 15-percent wage cut
during the first year of a 3-year contract and recoup 5
percent in each of the second and third years. Scheffler
would be "red circled" in this cut at $9.50 an hour rather
than at $9 an hour in his earlier offer. This proposal was
rejected by the Union.
Throughout this entire period of time, as well as in the
months which followed the February 7 meeting, no em-
ployee suffered a cut in wages. Some were given in-
creases. Late in June 1984, Scheffler was given an in-
crease from $8.34 an hour to $11 an hour. Other employ-
ees received increases later on in the summer as follows:
Name Date
Old
Rate
New
Rate
Devereaux .........................................8/20/84 $ 9.50 $1045
Laba ................................................... 9/10/84 11 02 11.80
Macha .....................................................8/ 13/84 7.93 8.75
Vican .................................................... 8/6/84 6.43 7 50
I credit Sawyer's testimony that on June 15, upon return-
ing to Detroit from out of town, he returned a phone
call from Gunsberg, in the course of which Gunsberg
told him that the Company was anxious to raise
Scheffier to $11 an hour because it had heard that
Scheffler was looking for another job. He asked Sawyer
if the UAW would file a charge if it did so. Sawyer told
Gunsberg that he would not file a charge if the Compa-
AMERICAN MODEL & PATTERN
ny gave everybody a wage increase . Gunsberg countered
that he thought the others should have cuts in wages.
Sawyer did not agree . Sawyer went on to tell Gunsberg
that he would take up the question of a single wage in-
crease for Scheffler with the UAW 's legal department
and would be guided by their opinion . Sawyer did not
communicate with Gunsberg again on the subject of
wage increases , either for Scheffler or any other employ-
ee. As noted supra, on June 25 Scheffler received an in-
crease to $ 11 per hour . Sawyer first learned about the
other increases in September 1984 in the course of the
hearing in this case.
H. ANALYSIS AND CONCLUSIONS
A. The Effect of American Model I on this Case
It is clear beyond peradventure that American Model I
and this case , American Model II, are merely successive
chapters in one ongoing saga of illegal conduct . Ameri-
can Model I addressed events which took place before
and immediately following the representation election.
This case picked up where episode one left off . In Ameri-
can Model 1, the Board found the Respondent guilty of
assorted violations of the Act, all of which demonstrate
an animus which has lingered on in this case . Of particu-
lar note is the finding in the earlier case that the Re-
spondent discriminatorily discharged Paul Harrington,
the Union 's in-house leader, on the day following an
election which the Union won. The events in this case,
most particularly the layoff of Harrington and others in
January 1983, must be considered against this back-
ground.
The earlier case is also significant because of an issue
of fact between the parties which was raised and decided
by the Board, and which arose a second time herein. In
defense of its layoff of Harrington in December 1981, the
Respondent admitted that Harrington was not laid off in
order of seniority , but argued that the Respondent did
not observe seniority for layoffs and recalls and was
under no legal or contractual obligation to apply this
principle in selecting employees for layoff. Administra-
tive Law Judge William F. Jacobs, with Board approval,
made the following findings on this point:
Karl [Blankenburg] specifically denied that seniority
played any part in the company 's decision as to
which employees should be laid off because the
company does not use seniority.
I find that, despite Karl's testimony , seniority was
generally followed during the December 11 layoff,
Harrington being an exception . [269 NLRB at 316.]
Further evidence that Respondent ordinarily
relies upon seniority in making its decisions regard-
ing working conditions is reflected in its practice of
approving vacation requests based on "length of
service with the company." See G.C. Exh. 3. Har-
rington 's uncontradicted testimony to this effect is
credited. [Id. at 320 fn. 47.]
181
11. The fact that Karl announced in advance of
the layoff that the layoff would not be in accord-
ance with seniority indicates that he felt that the
employees would assume it would be by seniority
but that he had already decided not to follow se-
niority on this occasion . His statement indicates a
planned deviation from past practices . Otherwise
there would have been no necessity or occasion to
make this statement.
12. The fact that despite Karl's statement to the
contrary , the December 11 layoff was generally in
accordance with seniority, Harrington 's layoff being
the most notable exception . Respondent's position
that it does not follow seniority is proved untrue by
its handling of this layoff and by additional factors
noted herein.
16. The use of a seniority list by Sobolewski in
recalling Harrington and other employees to work
... convinces me that seniority was a standard or-
dinarily used by Respondent in its dealings with em-
ployees and was its standard on December 11 de-
spite the treatment of Harrington . [Id. at 321-322.]
The record in this case is replete with statements and
protestations by the Respondent that it does not observe
and has never observed seniority , despite the fact that
eligibility for many benefits, such as IRA contributions
and other fringes, is determined by length of service.'
The Respondent's witnesses reiterated this point at vari-
ous bargaining sessions and asserted it again on the wit-
ness stand . The General Counsel contends that the Re-
spondent is bound by the Board 's factual determination
of this point in American Model I and is collaterally es-
topped from relitigating it in this proceeding.
In a recent decision on the subject of collateral estop-
pel, the Second Circuit stated:
That doctrine [collateral estoppel ] normally will bar
the relitigation of an issue of law or fact that was
raised , litigated , and actually decided by a judgment
in a prior proceeding between the parties, if the de-
termination of that issue was essential to the judg-
ment , regardless of whether or not the two pro-
ceedings are based on the same claim.
NLRB v. United Technologies Corp., 706 F.2d 1254, 1260
(1983). See also Mosher Steel Co. v. NLRB , 568 F.2d 436
(5th Cir . 1978). The above-quoted portions of Judge
Jacobs decision make it abundantly clear that the ques-
r Scheeler testified in this case that in 1978, after working several
years for the Respondent and collecting IRA payments at the end of
each year, he quit and went to work for another company. Apparently
the other job did not work out so he returned to the Respondent. Upon
hiring in again , he was concerned lest his break in service disturb his enti-
tlement to receive IRA payments, which, as noted above, were given
only to those employees who had 3 or more years' service He ques-
tioned Sobolewski on this point and was told that he had lost his seniori-
ty because he had gone to work for a competitor. Scheffler appealed So-
bolewski's decision to Blankenburg. Blankenburg reversed Sobolewski
and Sobolewski informed Scheeler of this fact, saying that henceforth
anyone who quit and returned would lose seniority. In discussing this
question with Scheeler, Sobolewski used the word "seniority."
182 DECISIONS OF NATIONAL' LABOR- RELATIONS BOARD
tion of whether the Respondent in this case observed se-
niority- respecting layoffs and recalls was litigated fully
°and was a,pivotal = question 'which was resolved in -reach-
-ing a decision in`American Model I. Accordingly; I am
precluded from = disturbing that finding in this case .` How-
,ever, even if I were disposed and-authorized to review
the^'question de -novo; ' there is nothing in this record
-other than the self-servin& assertions of company officials
upon which a contrary determination could be based.
B. The, Layoffs of January 7, 1,983
On January 7, the' Respondent laid off five unit em-
ployees without regard 'to their seniority. Its excuse for
making' a layoff ` was ' economic necessity,' a claim which
the Union did not dispute' at the' time it 'occurred and
which the General Counsel does not challenge here.
What is disputed is the layoff of Harrington, Devereaux,
Ozga; -Nagy,' and Bewley rather than others with less se-
niority. The General' `Counsel claims that Harrington,
Devereaux; and Bewley were selected because of their
union`' activities and that Harrington and Bewley were
also selected, because they had testified for the General
Counsel 2 months before in American Model L 8 All five
were alleged to be discriminatees in the sense that their
layoffs proceeded from -the violation of a duty to bargain
in'good faith on the part of the Respondent.
Harrington was ' the in-house leader of the organizing
drive, a member of the bargaining committee, and =the
victim of a' discriminatory layoff which took place in De-
ceniber^ 1981. Devereaux' attended union 'meetings held to
discuss bargaining topics-land took Scheffler's place at
the ' bargaining -table - at one session which occurred in
November. -In his position as a substitute member of the
Union's''bargaining committee on that occasion, ; he` ,en-
gaged in, a spirited dispute 'with Sobolewski as to what
had been'the Company's past practice as to entitlement
for vacation benefits. There is no question that 'Bewley
testified in support of the complaint in American Model I.
His testimony clearly allied him with the -union cause
and was a prominent, telling act- of union support. '
The excuses given for selecting,-these individuals for
layoff 'were. shifting ,arid,, in part, contradictory. At the
January 10, 1983 negotiations, when the, subject of lay-
offs was brought up by Sawyer, the Union was informed
that Bewley was selected for layoff over Champagne be-
cause he made more money than Champagne. On the-
other hand_ "'A number of moldmakers were retained de-
spite the'fact that they made more money than Dever-
eaux and Harrington. In American Model , 1, employees
closely related to management were laid off along with
others. Family membership did not spare an individual
on" that occasion. However, the' Respondent maintained
in this ,case that, Vican 'was, retained in preference- to
Nagy and -Ozga because-Blankenburg did- not want` to''
have to support his married 'daughter.9 While an employ-
8, Record" evidence indicates that Ozga and Nagy also testified in Amer
icaii Model 1,but their' layoffs were not alleged to be violations of Sec.
8(a)(4).
1, Blankenburg frankly admitted on the stand that-his son-in-law Was a
"pain in the ass.". Vican's personnel 'card indicates that he is no longer
working for the Respondent, having quit on August 25; 1984.
er is, not lega'll'y obligated to -follow seniority _in the ab-
sence "of-c'onttact , commitment or' past practice, if it de-
parts from seniority in its personnel practices itmay "then
be faced with-'a vexing question of just'what, nondiscrim-
inatory 'criteria ' it did . apply in selecting employees for
layoff and -recall.' When, as here, the Respondent gives
shifting and'inconsistent,reasons'for,selecting individuals
for` layoff, has a bad track record of antiunion activity,
including' the discriminatory layoff of a prominent ,union
supporter who again finds "himself on a layoff list, and
violates the practice of seniority which it was found to
have followed in times past, the Respondent makes it
clear that the 1983 layoff selection was prompted by the
same considerations which impelled the 1981 layoff. Ac-
cordingly, I find that, by selecting Harrington, Dever-
eaux,1 ° and, Bewley, for layoff, the Respondent herein
violated Section 8(a)(l) nand (3) ofthe Act.
-in _ a more mature collective-bargaining relationship
than the one which has been delineated in this record;
the question of layoffs would be governed by the-,provi-
sions of a contract placing, the question beyond the-ne-
cessity of immediate bargaining, at the time particular
layoffs are contemplated. However; in the absence of
contract 'provisions controlling this ' question, layoffs
remain a crucial matter, of wages, hours, and working
conditions which must be specifically bargained about in
good faith .when they are expected to occur. Such bar-
gaining includes both the criteria for selection and the
application of such criteria to particular 'employees:
Furr's Cafeterias, -251 NLRB 879 (1980); Peat Mfg.- Co.,
261 NLRB 240 (1982); Gulf States Mfrs., 261 NLRB 852
(1982). When a bargaining agent must-be consulted,'cri-
terial for layoff cannot be unilaterally established and in-
dividuals' may not be randomly selected. Like any other
topic of bargaining, the union must be notified and_ given,
an opportunity for meaningful negotiations, and action
must be-suspended until, bargaining to 'impasse in good
faith has occurred. This obligation 'includes something
more than 'presenting- the union with- a fait'accompli and
asking" for clearance concerning something that has al-
ready tak'en place. It "also goes beyond asking the-union
if it will file an unfair labor practice charge if the 'em-
ployer carries out its announced intention.,
In this case, the Respondent had already, determined
that, a, layoff would take place when Gunsberg called
Sawyer on January 7,-to relay the information. It had
also decided who was going to be eliminated. The over-
ture by Gunsberg to Sawyer was not only after the fact,
but was also attended by incorrect information concern-
ing'fhe Company's decision which would,hamper-intelli-
10 At the hearing, the Respondent added that it had selected Dever-
eaux for layoff out of seniority because he had a drinking problem and a
poorer attendance- record than, others' who we're retained. There is not
the- slightest evidence that Devereaux had a drinking problem- or -that he
had missed, any time from work, due to drunkenness Nor was any men-
tion 'made of this reason when the questionof,layoffs was discussed with
the Union in January 1983. This type of afterthought; ,unsupported by
any objective evidence, =does not support a contention' that Devereaux
was laid off-on the basis of nondiscriminatory criteria._Tothe contrary, it
supports the view that this Respondent, when pressed to justify its behav-
ior, was simply casting about for excuses to explain an action which was
actually prompted by other considerations
AMERICAN MODEL & PATTERN
gent and meaningful bargaining . However, of paramount
importance is that Gunsberg's phone call to Sawyer was
described by Gunsberg to Sawyer as merely a "courte-
sy." He was, in popular parlance, merely "touching
base"' so as to avoid possible future repercussions.
The duty to bargain in good faith is not a courtesy. It
is a serious and binding legal obligation imposed by Fed-
eral law. It cannot be swept under the rug by niceties of
expression or casual phone conversations. In this case,
the Respondent fell woefully short of its obligation to
bargain in good faith to impasse over the elimination of
seniority as the criterion for layoff and the establishment
of new criteria in lieu thereof. It also fell short of its
duty to bargain over the application of any newly estab-
lished criteria to the individuals whom it had selected for
layoff. The fact that it did so against a background of
animus and in the context of making discriminatory se-
lections aggravates the bad faith which it exhibited but is
not an essential element thereof. Accordingly, I find that,
by laying off the five discriminatees named in the amend-
ed complaint without first bargaining in good faith to im-
passe over the layoff, the Respondent herein violated
Section 8(a)(1) and (5) of the Act.
C. The Threat of Retaliation for Filing a Charge
A few days after the January 7 layoff, the Charging
Party filed an unfair labor practice charge protesting the
Company's action. The Respondent's immediate response
to the charge was an impromptu meeting of unit employ-
ees at which Sobolewski and Blankenburg disparaged
union officials for seeking redress under the Act. How-
ever, they went beyond complaining about the asserted
duplicity of the Charging Party or the fact that the Re-
spondent would have to bear heavy legal expenses de-
fending itself against the UAW's most recent accusations.
Blankenburg told the gathering that the Company and
the employees would have to work together if they
wanted to see the laid-off employees reinstated because,
when union actions cost the Company money, they were
going to cost the employees as well. This is a clear
threat of reprisal against employees for engaging in pro-
tected activities and, as such, is a violation of Section
8(a)(1) of the Act.
D. The Discontinuance of IRA Payments
For many years, the Respondent gave its bargaining
unit employees each year an annual bonus, which was
paid in December . The amounts of the bonuses were in-
cluded on their W-2 forms for the outgoing year. As
noted above, annual bonuses varied in amounts from em-
ployee to employee and also varied in amount from year
to year. Until 1982, a bonus in some amount was regular-
ly paid at the end of each year , and some of those bo-
nuses were quite generous . Bonuses were discontinued in
1982 and have not been paid since that time . The Gener-
al Counsel does not allege that the discontinuance of
those bonuses constituted a violation of the Act.
In addition to annual bonuses, the Respondent also
regularly made $1500 payments in December to IRA ac-
counts which it had opened in each employee 's name at
the National Bank of Detroit. Unlike the bonus pay-
183
ments, the IRA payments never exceeded the statutory
maximum for tax adjustment purposes and were only
paid to those employees who had 3 or more years' serv-
ice. At the same time the Respondent discontinued
annual bonuses, it also discontinued making IRA pay-
ments and has made no such payments since that time.
The General Counsel alleges that the Respondent violat-
ed Section 8(a)(1) and (5) of the Act by unilaterally dis-
continuing the payment of IRA bonuses without first
bargaining in good faith to impasse over this action. The
Respondent maintains that it was under no duty to bar-
gain at all on this question since the payment of IRA
contributions was wholly "discretionary" and hence not
a subject of bargaining.
Since 1976, the Respondent regularly made annual
IRA contributions for all employees who were eligible
under its self-imposed rule. The General Counsel points
out that 57 such payments were made in that period of
time, and that they were as regular as clockwork and
were in identical amounts, with two explained excep-
tions. I discredit testimony from the Respondent wit-
nesses that each year employees were called into the
company office in January and were told that the IRA
payments were discretionary when they were handed
contribution certificates. The payment of these contribu-
tions was routine and was regarded as such by employ-
ees. As a regular company benefit, the Respondent was
under an obligation to bargain collectively to impasse
with the Union before discontinuing it, just as it was
under an obligation to bargain in the same manner over
changes in hourly wage rates. It can hardly be said that
IRA payments are not embraced in the terms "wages,
hours, and terms and conditions of employment" as that
language is found in the Act.
A second string in the Respondent's bow is that it did
in fact offer to bargain over the discontinuance of IRA
payments. At the January 10, 1983 bargaining session,
Gunsberg told Sawyer that there would be no IRA pay-
ments for 1982 because the Company had a bad year, but
then suggested that the parties had until January 24 to
bargain over the matter. In making this announcement,
Gunsberg was speaking out of both sides of his mouth.
He was informing union officials that the discontinuance
of IRA payments had in fact taken place but he would
negotiate about it, notwithstanding the fact that company
action in this regard had already been determined. This
is not bargaining in good faith. Indeed, it is not bargain-
ing at all. There were no bargaining sessions between
January 10 and January 24, Gunsberg' s self-imposed
deadline for discussing the IRA question. Other than a
routine exchange of proposals, which had taken place the
previous summer, no discussion of IRA payments had
ever occurred at any of the many sessions which the par-
ties had attended up to and including January 10. In no
small way was this fact attributable to the Respondent's
desire to reach agreement on noneconomic matters
before tackling cost items. More to the point, when the
Respondent failed to make IRA contributions to employ-
ee accounts on or before December 311 as it had in the
past, it departed materially from past practice without
negotiating. Its violation of the Act in this regard oc-
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curred even before Gunsberg informed the Union that it
was taking place. Paying lip service to the Act in a des-
ultory overture to discuss the matter in the next 14 days
does not cure a violation which had already occurred.
By unilaterally discontinuing the payment of IRA contri-
butions on and after December 31, 1982, the Respondent
herein violated Section 8(a)(1) and (5) of the Act.
E. The Refusal of the Respondent to Provide
Financial Data
The Supreme Court held long ago that, when an em-
ployer objects to a union's bargaining demands on the
basis that it cannot afford to pay the cost of the proposal,
the employer is then under a legal obligation to permit
the union to inspect its books and records in order to de-
termine whether its position is bona fide. NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). The extent of the obliga-
tion is pervasive. Disclosure may be required with re-
spect to cash investments and equities supporting an ex-
isting pension plan. i i Disclosure may include an audit of
the payroll books and records, including books of origi-
nal entry, payroll records, canceled checks, check stubs,
quarterly payroll returns, income tax returns, and data
for preceding years,12 and may extend to certified as
well as unverified statements produced by company ac-
countants.13 The disclosure obligation extends to any
particular items of information which are available to the
employer but which may pertain to another bargaining
unit or to another closely held corporation or operating
division.14 The obligation to provide financial data in-
cludes an obligation to do so in a timely fashion. 1 s
No particular magic words or phrases are necessary to
give rise to an obligation defined by Truitt.16 As now
Chief Justice Burger wrote in a decision rendered by the
U.S. Court of Appeals for the District of Columbia Cir-
cuit:
The Company asserts that a claim of inability to
pay is not shown when the Company merely claims
that the increases will prevent it from competing.
But the inability to compete is merely the explana-
tion of why the Company could not afford an eco-
nomic benefit.
Steelworkers Local 5571 v. NLRB, 401 F.2d 434, 436
(D.C. Cir. 1968). Gunsberg's statement to union negotia-
tors in January, upon announcing the discontinuance of
IRA payments, that the Company was taking this step
because of its bad financial position is tantamount to a
confession of inability to pay. Gunsberg's further state-
ment to union negotiators on April 19, in proposing an
across-the-board wage cut of 15 percent, that the Com-
pany has to take this step so it can remain competitive is
another and more closely related contention that it
cannot afford to pay existing wages and benefits. In light
11 Beyerl Chevrolet, 221 NLRB 710 (1975)
12 Detroit Cabinet Door Co., 247 NLRB 1415 (1980), Hiney Printing
Co, 262 NLRB 157 (1982).
13 Stanley Building Specialties, 166 NLRB 984 (1967).
14 Samuel Kosoff & Sons, 269 NLRB 424 (1984)
15 Salem News Publishing Co, 230 NLRB 927 (1977).
11 Monarch Machine Tool Co., 227 NLRB 1265 (1977)
of these statements, the Respondent, in order to satisfy
its duty to bargain in good faith, was under a clear obli-
gation to produce, for inspection and analysis, any and
all books and records available to it which would tend to
support its bargaining position.
In meeting the above-defined obligation the Respond-
ent herein failed utterly. The Respondent was furnished
with a precise written description of the items the
Union's auditor felt were necessary in order to determine
whether the Company could afford to continue its exist-
ing wage scale. These records included primary compa-
ny records, tax returns, and data pertaining both to the
St. Clair Shores Division and to the Mount Clemens Di-
vision. This request extended to financial data covering a
period of 3 years. The reasons given by Schwartz for
such a request were convincing and were well within the
parameters of data deemed relevant in previous Board
cases. Schwartz wanted information for a 3-year period
of time to determine whether the Respondent' s present
financial position was of short-term duration or was a
long-term problem which would be susceptible of
remedy by a wage or benefit reduction. He also wanted
to see the books pertaining to both divisions because, as
he explained, in a closely held and controlled corpora-
tion, it is easy for management to make allocation of
costs common to both operations on an arbitrary and
self-serving basis. He wanted to determine whether such
allocations were justified, or whether the St. Clair
Shores operation was losing money because costs proper-
ly borne by another bargaining unit were being imposed
upon it in order to establish a distorted financial picture.
Schwartz also wanted access to company books them-
selves in order to establish the truth of what Gunsberg,
Blankenburg, and Company accountant Tarakis were
telling him and Sawyer.
Schwartz and Sawyer got none of this information
either on May 31 during their first visit to the Company
office or on September 1 when they again pursued this
matter at a second meeting. All that they ever received
was a glimpse at an uncertified profit-and-loss statement
for 1982, pertaining to only one of the Company's two
operating divisions, plus an opportunity to ask the ac-
countant questions pertaining to that document. Such
disclosure falls far short of the obligation imposed by
law upon an employer which seeks to cut wages and
benefits because it cannot afford to pay them. Accord-
ingly, by its failure to provide the Union herein with re-
quested financial data in support of its bargaining posi-
tion, and by its failure to do so in a timely manner, the
Respondent herein violated Section 8 (a)(1) and (5) of the
Act.
F. Unilateral Wage Increases to Particular Unit
Employees
Within 4 months after proposing to reduce the wages
of all bargaining unit employees except Scheffler by 15
percent, the Respondent granted wage increases to
Scheffler and to four other employees. The latter in-
creases were not discovered until the Respondent gave
testimony at the hearing in this case, whereupon the
General Counsel moved to amend the consolidated com-
AMERICAN MODEL & PATTERN
plaint to add an additional allegation. A recess of about 3
weeks took place to permit the Respondent to prepare
and advance a defense to the additional allegation. When
the hearing resumed , no defense was forthcoming.
Taking action away from the bargaining table which is
inconsistent with proposals advanced at the bargaining
table is a classic example of overall subjective bad faith.
The General Counsel has elected not to proceed on a
theory of overall subjective bad faith. Instead, he has
confined his attack upon the Respondent's most recent
activities to an allegation that they amounted to unilater-
al changes in wage rates, taken in the absence of mean-
ingful collective bargaining and before impasse, and, as
such, were per se violations of Section 8(a)(1) and (5) of
the Act. The attack has gone virtually unanswered.
In the case of Scheffler, the Respondent made a pre-
tense at bargaining. Instead of notifying Sawyer and of-
fering to negotiate concerning a $2.66 increase in
Scheffler's hourly rate, the Respondent once again decid-
ed it merely would try to "touch base" with Sawyer in
an effort to avoid another unfair labor practice charge.
Having found itself in a position of either raising
Scheffler's wages immediately or of taking the chance
that he would go to work for a competitor for the
second time, the Respondent asked Sawyer if the Union
would file charges .if the Company increased Scheffler's
rate. Sawyer's response was that, if Scheffler alone was
the only one to receive an increase, he did not know
what he would do but would seek advice from the
UAW's legal department and be guided by its decision.
Without awaiting any definitive reply on its narrow
question of whether it would be faced with a charge, the
Respondent went ahead and implemented the increase.
Sawyer's reply that he did not know whether he would
or would not file an unfair labor practice charge, is a far
cry from defining an impasse over the subject of
Scheffler's raise. When the Respondent went ahead and
took the action that it had plainly determined to do irre-
spective of Sawyer's response, it was guilty of unilateral
action in derogation of its bargaining obligation under
Section 8(a)(1) and (5) of the Act.
As to the four other employees who received increases
in August or September 1984, the Respondent did not
even pay lip service to its legal obligation. It simply
granted increases to these individuals just as if they had
no collective-bargaining agent to represent them. The in-
creases in question were all quite substantial, Sawyer re-
ceived neither notice nor opportunity to bargain over
these matters. Indeed, he found out about them after the
fact and purely by chance. By unilaterally granting wage
increases to Devereaux, Laba, Macha, and Vican without
satisfying its obligation to bargain to impasse under the
Act, the Respondent herein violated Section 8(a)(1) and
(5).
On the foregoing findings of fact and on the entire
record herein considered as a whole, I make the follow-
ing
CONCLUSIONS OF LAW
1. The Respondent, American Model & Pattern, Inc.,
is now and at all times material herein has been an em-
1 85
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time mold makers,
mold finishers , upgraders , apprentices , trainees, and ship-
ping and receiving employees employed by the Respond-
ent at its St . Clair Shores, Michigan , metal shop , but ex-
cluding professional employees, office clerical employ-
ees, confidential employees , and guards and supervisors
as defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material herein the Union has been the
exclusive collective-bargaining representative of all of
the employees in the unit found appropriate in Conclu-
sion of Law 3 for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to supply the Union with re-
quested financial information in a timely fashion; by uni-
laterally discontinuing the payment of IRA contributions
to unit employees who have 3 or more years' service; by
unilaterally raising the wages of Arvin Scheffler, Duane
Devereaux, Roman Laba, Gary Macha, and Gary Vican
without first notifying the Union and bargaining collec-
tively in good faith to impasse concerning such proposed
increases; and by laying off Paul Harrington , Duane De-
vereaux, Nelson Bewley, Frederick Ozga, and Louis
Nagy without regard to its past practice of following se-
niority for layoffs and recalls, and without first notifying
the Union and offering to bargain collectively with it
concerning criteria other than seniority for layoffs and
selections of employees for layoff, the Respondent herein
violated Section 8(a)(5) of the Act.
6. By laying off Paul Harrington and Nelson Bewley
because they gave testimony under the Act in support of
the General Counsel's position in Case 7-CA-20135, the
Respondent herein violated Section 8(a)(4) of the Act.
7. By laying off Paul Harrington, Duane Devereaux,
and Nelson Bewley because of their activities on behalf
of the Charging Party Union, the Respondent herein vio-
lated Section 8(a)(3) of the Act.
8. By the acts and conduct set forth above in Conclu-
sions of Law 5, 6, and 7, and by threatening employees
with economic reprisal because they filed charges under
the Act, the Respondent herein violated Section 8(a)(1)
of the Act.
9. The unfair labor practices set forth above in Con-
clusions of Law 5, 6, 7, and 8 have a close, intimate, and
adverse effect on the free flow of commerce within the
meaning of Section 2(6) of the Act.
REMEDY
Having found that the Respondent herein has commit-
ted certain unfair labor practices , I will recommend that
it be required to cease and desist therefrom and to take
other affirmative action designed to effectuate the pur-
poses and policies of the Act. The facts found in this
case, read together with the Board 's decision in American
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Model I, present a case study in the frustration of the
purposes and policies of the Act by an employer who
continues to go about its business heedless of the rights
of its employees and their collective-bargaining repre-
sentative, and who, in so doing, has rendered virtually
meaningless a certification which was issued nearly 3
years ago and a statute which was enacted nearly 50
years ago. In light of the Respondent's continuing dispo-
sition to violate the Act, I will recommend to the Board
a broad 8(a)(1) order designed to suppress any and all
violations of that section of the Act. Hickmott Foods, 242
NLRB 1357 (1979). I will recommend that the Respond-
ent be required to reinstitute its practice of making $1500
IRA contributions each year to all employees with 3 or
more years' service and to follow its past practice of ob-
serving seniority respecting layoffs and recalls. I will fur-
ther recommend that the Respondent be required to offer,
full and immediate reinstatement to Paul Harrington,
Duane Devereaux, Nelson Bewley, Louis Nagy, and
Frederick Ozga to their former or substantially equiva-
lent employment, and to make them whole for any loss
of pay or benefits which they may have suffered by
reason of the discrimination and unfair labor practices
found herein, in accordance with the formula set forth in
the Woolworth case,17 with interest thereon at the adjust-
ed prime rate used by the Internal Revenue Service for
the computation of tax payments. Olympic Medical Corp.,
250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716
(1962). I will further recommend that the Respondent be
required to make whole all of its bargaining unit employ-
ees for its failure to make IRA contributions for 1982,
1983, and 1984, and thereafter until it bargains collective-
ly in good faith to impasse with the Union concerning
the discontinuance of these benefits, or enters into an
agreement with the Union concerning the payment of
IRA contributions. Such make-whole remedy should be
with interest computed at the compliance stage of this
proceeding, and should take into account the fact that, as
for 1982 and 1983, the tax-free feature of this benefit has
been irretrievably lost to employees. Merryweather Opti-
cal Co., 240 NLRB 1213 (1979). I will recommend that
the Respondent be required to bargain collectively in
good faith with the Union as the exclusive collective-bar-
gaining representative of its unit employees and, if an
agreement is concluded, to embody the same in a signed
written agreement. I will also recommend that the Re-
spondent be required to post the usual notice, advising its
employees of their rights and of the results in this case.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The Respondent, American Model & Pattern, Inc., St.
Clair Shores, Michigan, its officers, agents, successors,
and assigns, shall
17 F W Woolworth Co, 90 NLRB 289 (1950)
18 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.
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW as
the exclusive collective-bargaining representative of all
of its full-time and regular part-time mold makers, mold
finishers, upgraders, apprentices, trainees, shipping and
receiving employees, and truck drivers and maintenance
employees employed at its St. Clair Shores, Michigan,
metal shop, exclusive of professional and confidential em-
ployees, office clerical employees, guards, and supervi-
sors as defined in the Act.
(b) Unilaterally changing or discontinuing the wages,
benefits, or other terms and conditions of employment of
bargaining unit employees without first notifying the
.Union of its intention to do so and giving the Union an
adequate opportunity to request bargaining, and, if re-
quested, bargaining in good faith to impasse with the
Union.
(c) Unilaterally discontinuing its past practice of fol-
lowing seniority with respect to the layoff, recall, trans-
fer, and upgrading and downgrading of employees, and
laying off bargaining unit employees without first notify-
ing the Union and giving the Union an adequate oppor-
tunity to bargain collectively concerning the criteria for
layoff and the selections of employees for layoff, and, if
requested, bargaining in good faith to impasse with the
Union concerning criteria for layoff and the selection of
employees for layoff.
(d) Failing and refusing to supply the Union in a
timely fashion with requested information which is nec-
essary to permit the Union to fulfill its function as bar-
gaining representative, including all data requested by
the Union in its letter to the Respondent dated May 4,
1983, and similar information made current to the date of
compliance with the terms of this Order.
(e) Laying off or otherwise interfering with, restrain-
ing, or coercing employees because they have given tes-
timony under the Act or have filed charges under the
Act.
(f) Discouraging membership in or activities on behalf
of International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
or any other labor organization, by laying off employees
or otherwise discriminating against them in their hire or
tenure.
(g) Threatening economic reprisals against employees
because they have filed charges under the Act.
(h) By any other means or in any other manner inter-
fering with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) Recognize and, on request, bargain collectively in
good faith with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW as the exclusive collective-bargaining
representative of the St. Clair Shores, Michigan metal
shop employees and, if agreement is reached, embody
the same in a signed written contract.
AMERICAN MODEL & PATTERN
(b) Furnish the Union with all data requested by the
Union in its letter to the Respondent dated May 4, 1983,
and with similar information made current to the date of
compliance with the terms of this Order.
(c) Reinstitute its past practice of giving to all unit em-
ployees with 3 or more years' service annual IRA contri-
butions in the amount of $11500, and retain such practice
until it has bargained collectively in good faith to im-
passe on the subject of regular IRA contributions or has
reached an agreement with the Union concerning this
subject.
(d) Continue in existence its past practice of observing
seniority in the layoff, recall, transfer, and upgrading and
downgrading of bargaining , unit employees until it has
bargained collectively in good faith to impasse on the
subject of seniority or has reached an agreement with the
Union concerning this subject.
(e) Offer Paul Harrington, Duane Devereaux, Nelson
Bewley, Frederick Ozga, and Louis Nagy full and imme-
diate reinstatement to their former or substantially equiv-
alent employment, without prejudice to their seniority or
to other rights previously enjoyed, and make them
whole for any loss of pay or benefits which they have
suffered by reason of the discriminations and other unfair
labor practices found herein, in the manner described
above in the section entitled "Remedy."
(f) Make whole all bargaining unit employees for the
losses which they have suffered by reason of the unlaw-
ful discontinuance of annual IRA contributions, with in-
terest, as discussed above in the section entitled
"'Remedy."
(g) Preserve and, on request, make available to the
]Board or its agents for examination and copying all pay-
roll and other records which may be necessary to ana-
lyze the amounts of backpay due under the terms of this
Order.
(h) Post at the Respondent's St. Clair Shores, Michi-
gan place of business copies of the attached notice
marked "Appendix "19 Copies of said notice, on forms
provided by the Regional Director for Region 7, shall be
posted immediately upon receipt thereof and shall be
maintained by the Respondent for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
is If this Order is enforced by a.judgment of a United States court of
appeals, the words in the notice reacting "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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
187
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 NOT threaten our employees with economic
reprisal because they have filed charges under the Act.
WE WILL NOT unilaterally change or discontinue the
wages, benefits, or other terms and conditions of employ-
ment of our bargaining unit employees , including the use
of seniority to control layoffs, recalls, transfers, upgrad-
ing, and downgrading of employees, without first notify-
ing the Union of our intention to do so and giving the
Union an adequate opportunity to bargain . If requested,
WE WILL bargain in good faith to impasse concerning
any changes in wages, hours , or terms and conditions of
employment of bargaining unit employees . WE WILL NOT
lay off bargaining unit employees without first notifying
the Union and giving it an opportunity to bargain collec-
tively concerning the criteria for layoff and the selec-
tions of employees for layoff.
WE WILL NOT fail and refuse to supply the Union in a
timely fashion with requested information which is nec-
essary to permit the Union to fulfill its function as bar-
gaining representative . WE WILL furnish the Union all
data requested by it in its letter of May 4, 1983 , and simi-
lar information made current to the date of compliance
with the terms of the Board's Order.
WE WILL NOT lay off or otherwise interfere with, re-
strain, or coerce employees because they have given tes-
timony under the Act, or because they have filed
charges under the Act.
WE WILL NOT discourage membership in or activities
on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW or any other labor organization, by
laying off employees or otherwise discriminating against
them in their hire or tenure.
WE WILL NOT by any other means or in any other
manner interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act. Those rights in-
clude the right to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, and to engage in other concerted ac-
tivities for their mutual aid and protection.
WE WILL recognize and bargain collectively in good
faith with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW as the exclusive collective-bargaining
representative of our St. Clair Shores., Michigan, metal
shop employees and, if agreement is reached, embody
the same in a signed written contract.
WE WILL reinstitute our past practice of making to all
unit employees with 3 or more years of service an annual
IRA contribution in the amount of $1500, and WE WILL
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retain such practice until we have bargained collectively
in good faith to impasse on the subject of regular IRA
contributions or have reached an agreement with the
Union concerning this subject.
WE WILL continue in existence our past practice of ob-
serving seniority in the layoff, recall , transfer, and up-
grading and downgrading of bargaining unit employees
until such time as we have bargained collectively with
the Union in good faith to impasse on the subject of se-
niority, or have reached an agreement with the Union
concerning this subject.
WE WILL offer to Paul Harrington, Duane Devereaux,
Nelson Bewley , Frederick Ozga, and Louis Nagy full
and immediate reinstatement to their former or substan-
tially equivalent employment , without prejudice to their
seniority or rights previously enjoyed , and WE WILL
make them whole for any loss of pay or benefits which
they may have suffered by reason of the discrimination
and unfair labor practices found herein , with interest.
WE WILL make whole all bargaining unit employees
for the losses which they have suffered by reason of the
unlawful discontinuance of annual IRA contributions,
with interest.
AMERICAN MODEL & PATTERN