Campo Slacks, Inc.; J & E Sportswear, Inc.; JBC of Madera, Inc.; and Joseph Campolong, Sr.

National Labor Relations Board - Board Decisions

Mar 21, 1983

266 N.L.R.B. 492 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Campo Slacks, Inc.; J & E Sportswear, Inc.; JBC of
Madera, Inc.; and Joseph Campolong, Sr. and
Pittsburgh Joint Board, Amalgamated Clothing
and Textile Workers Union, AFL-CIO. Cases
6-CA-13841, 6-CA-13904, 6-CA-13928, and
6-CA-14094
March 21, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On August 18, 1982, Administrative Law Judge
Harold Bernard, Jr., issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the Charg-
ing Party Union filed a brief in opposition to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, and
hereby orders that the Respondent, Campo Slacks,
Inc.; J & E Sportswear, Inc.; JBC of Madera, Inc.;
and Joseph Campolong, Sr., Houtzdale and
Madera, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
I For the reasons set forth at fn. 18 of his Decision, we agree with the
Administrative Law Judge that Joseph Campolong, Sr.. is individually
liable for the make-whole remedies imposed herein. See Master Food
Services. Inc., Noah Robinson and Al Williams d/b/a A & W Catering Co.,
262 NLRB 804 (1982); Ski Craft Sales Corp., 237 NLRB 122 (1978); Ogle
Protection Service, Inc., and James L Ogle, 149 NLRB 545, fn. 1 (1964),
modified on other grounds 375 F.2d 497 (6th Cir. 1967).
In an Errata issued on September 13, 1982, the Administrative Law
Judge deleted the terms "Domestic Steel Co." from his Decision at fn.
19. The foregoing deletion should read "Domestic Steel Sales Co., Inc."
In addition, at the first paragraph of sec. II,F, of his Decision, the Ad-
ministrative Law Judge erroneously describes attorney Woicik's threat as
occurring on September 9, 1980. As noted elsewhere in his Decision, the
threat, in fact, was made on September 26. 1980.
At the final paragraph of sec. II,B, of his Decision, the Administrative
Law Judge cites the case of Quick-Lahmann Express, Inc., 262 NLRB
220 (1982), in support of his finding that Respondent's failure to remit
dues to the Union and make payments into the insurance benefits plan
violated Sec. 8(a)(5) and (1) of the Act. Quick-Lahmann, however, raises
no issues pertinent to the instant case and we find its citation inappropri-
ate herein.
2 In view of several inadvertent errors and omissions in the Adminis-
trative Law Judge's notice to employees, we shall substitute the attached
notice for that of the Administrative Law Judge.
266 NLRB No. 92
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten the Union or em-
ployees with unlawful acts such as changing
terms in the collective-bargaining agreement
with Pittsburgh Joint Board, Amalgamated
Clothing and Textile Workers Union, AFL-
CIO, unless grievance arbitration is postponed,
or carry out such a threat.
WE WILL NOT make changes in the collec-
tive-bargaining agreement with Pittsburgh
Joint Board, Amalgamated Clothing and Tex-
tile Workers Union, AFL-CIO, during the
term of such agreement without the Union's
consent.
WE WILL NOT repudiate the collective-bar-
gaining agreement.
WE WILL NOT fail to honor union requests
for information necessary and relevant to the
Union's administration and enforcement of the
collective-bargaining agreement.
WE WILL NOT unilaterally implement provi-
sions dealing with "local issues" without the
Union's consent or until a valid impasse in bar-
gaining exists beforehand and WE WILL NOT
unilaterally change established vacation prac-
tices.
WE WILL NOT fail to remit to the Union
dues deducted from employee wages under the
contract with the Union or to make contribu-
tions to the insurance fund.
WE WILL NOT refuse to arbitrate grievances
as provided in the collective-bargaining agree-
ment.
WE WILL NOT in any other manner interfere
with, coerce, or restrain our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL honor and abide by the terms of
our contract with the Union.
WE WILL make employees whole for any
losses suffered as a result of our repudiation of
the contract, failure to abide by any of its
terms, and our unilateral changes to the con-
tract or established working conditions by
payments designed to return them to their
status quo ante.
492
CAMPO SLACKS, INC.
WE WILL reimburse employees, as well, for
expenses incurred by them due to our failure
to make contributions to the insurance fund as
required in our contract with the Union, with
interest.
WE WILL bargain in good faith with Pitts-
burgh Joint Board, Amalgamated Clothing and
Textile Workers Union, AFL-CIO, as the ex-
clusive representative of employees in the fol-
lowing unit and, if an understanding is reached
as to previously unresolved matters, WE WILL
embody it in a signed written agreement:
All employees employed by Campo Slacks,
Inc., at its Houtzdale, Pennsylvania, facility,
and all cutting department employees em-
ployed by Campo Slacks, Inc. at its Madera,
Pennsylvania, facility; excluding office cleri-
cal employees, executives, administrative
employees and guards, professional employ-
ees and supervisors as defined in the Act.
WE WILL, upon the Union's request, rescind
all changes in terms and conditions of employ-
ment made as a result of our unilateral action.
CAMPO SLACKS, INC.; J & E SPORTS-
WEAR, INC.; JBC OF MADERA, INC.;
AND JOSEPH CAMPOLONG, SR.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge: I
heard these consolidated cases on June 18, 19, and 25,
1981, in Clearfield, Pennsylvania, pursuant to complaint
allegations that Respondent violated Section 8(a)(5) of
the National Labor Relations Act, as amended, herein
called the Act, by (a) failing to implement, unilaterally
modifying, and later entirely abrogating a collective-bar-
gaining contract with the Union covering employees at
Campo Slacks, Inc., during the period October 1980 to
April 1981; and (b) by refusing the Union's requests for
information relevant to its collective-bargaining responsi-
bilities.
Respondent admits certain matters but denies that it
committed any unfair labor practices. All parties ap-
peared at the hearing. Each was represented by counsel
and was afforded full opportunity to be heard, to intro-
duce and meet material evidence, to examine witnesses,
to present oral argument, and to file briefs. Post-trial
briefs were filed by all parties.
The issues are as follows:
1. Does the Board have jurisdiction over the named
Respondent?
2. Was a collective-bargaining agreement in effect after
December 18, 1979?
3. Did Respondent unlawfully cease transmittal of
union dues checked off under a contract with the Union?
4. Did Respondent unlawfully cease payments to the
employees' insurance fund?
5. Did Respondent unilaterally modify several contract
provisions in violation of the Act?
6. Did Respondent repudiate the entire agreement be-
tween the parties?
7. Did Respondent unilaterally change vacation sched-
uling practices in violation of the Act?
8. Did Respondent unlawfully threaten to cease bar-
gaining with the Union unless grievance arbitration was
postponed?
9. Did Respondent unlawfully refuse to grant the
Union information relevant to the Union's collective-bar-
gaining responsibilities under the Act?
10. Has Respondent failed to bargain in good faith
with the Union?
Upon the basis of the entire record, including my eval-
uation of the demeanor of the witnesses and the briefs
filed by the parties,' I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The complaint alleges, inter alia, and Respondent
admits, that Campo Slacks, Inc., and JBC of Madera,
Inc., are employers and corporations engaged in the
manufacture and nonretail sale of clothing in Houtzdale
and Madera, Pennsylvania. The complaint further alleges
that Respondent annually ships products valued in excess
of $50,000 directly to points outside Pennsylvania and
annually purchases materials valued in excess of $50,000
directly from sources outside Pennsylvania. Respondent
admits such facts pertaining to Campo and JBC and that
their operations fall within the Board's jurisdiction. (G.C.
Exhs. IW and 1M.) Further, in a prior case involving
Campo and J & E Sportswear, Inc.,2 wherein Board ju-
risdiction was assert, the latter was admitted and found
to be a joint employer or part of a single business with,
inter alia, Campo due to their affiliation in a business en-
terprise with common ownership and control of labor re-
lation policies. Finally, regarding Joseph Campolong,
Sr., the record in this case and the prior Campo I sup-
ports the conclusion that he is, under law, clearly the
t In addition to its initially filed post-hearing brief, Respondent counsel
submitted a "Reply Brief." While the former has been considered, in the
absence of any provision for filing same in the Board's rules the latter has
not been accorded any weight. The Charging Party's unopposed motion
on brief to correct obvious transcript reproduction errors is granted.
I Campo Slacks. Inc. and J d E Sportswear. Inc., 250 NLRB 420 (1980),
enfd. 659 F.2d 1069 (1981).
3 Respondent's motion to dismiss as to J & E because said Company
allegedly ceased business in October 1979 thereby time-barring complaint
allegations of any wrongdoing by J & E is denied inasmuch as I & E
(like JBC to an extent) is in the picture for remedial purposes, such as
information-providing and possible make-whole payments rather than for
finding separate violations vis-a-vis its prior employees. Moreover, Re-
spondent's reliance on Peter Kiewit Sons' Ca and South Prairie Construc-
tion Co., 231 NLRB 76 (1977), for the tenet that a single employer status,
here occupied by the named employers, does not mean a single unit
exists, or that employees of one, i.e., JBC, are covered by the contract
unit of another, i.e., Campo and J & E, for purposes of finding a violation
of the Act with respect to such employees, has no application herein,
where the General Counsel included JBC and J & E for remedy purposes
only.
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commanding presence or alter ego behind the three
named entities, able to close or open the business at will
(he closed J & E and decided to keep JBC open), per-
sonally soliciting business and personally guaranteeing
corporate indebtedness, or personally funding the busi-
ness and with his daughter, sons, and wife as corporate
subordinates or employees running daily affairs. Thus,
Joseph Campolong, Sr., owns 100 percent of the stock of
JBC wherein he is president and which, in turn, owns
100 percent of the stock in Campo Slacks, the latter
having no bank account or assets and getting all its work
from JBC with no written agreement to memorialize the
arrangement. Campolong Sr. bargained in negotiations
with the Union on behalf of Campo at all the negotia-
tions in 1979 and 1980, along with his counsel, made the
decisions with him, including decisions on wages in such
negotiations, and, with his counsel, Campolong decides
daily employee problems or questions. Although his son
David Campolong answers employee questions as well,
Campolong Sr. has higher authority, and has exercised
such authority in employee compensation matters. Cam-
polong Sr.'s son, David, is vice president of JBC; his
wife is secretary-treasurer of JBC, and his son, Joseph
Jr., is plant manager at Campo Slacks, which has no offi-
cers or directors. Campolong Sr. loaned JBC $100,000 in
the last several years-for which he has not been
repaid-which money he eventually gave to JBC as cap-
ital investment and testified that he has the final word on
labor relations at Campo Slacks. When testifying as to
how he spends his time, Campolong Sr. testified he
"mostly" solicited sales for JBC and Campo. He also ap-
proves all business deals.
The payroll and accounting for Campo Slacks is han-
dled through JBC where bills, joint tax returns, employ-
ee W-2 forms, checks, and general office work is per-
formed for both including work by Campolong's daugh-
ter Brenda Campolong. There is also evidence that on
some occasions a truck titled to Campo Slacks is used to
transport raw materials and in the event it is necessary (a
small percentage of the time) goods manufactured by
Campo may be warehoused in a JBC warehouse.
Based upon the foregoing widespread commonality in
ownership, control, operational activities, and labor rela-
tions, I find that the named entities constitute a single in-
tegrated business enterprise, or a joint employer, if you
will, and that Joseph Campolong, Sr., present and repre-
sented at the hearing and who testified therein is an alter
ego personnally responsible for this common enterprise,
which, I further find are employers (or an employer) en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. DMR Corp. and Harrill Electric
Contractors, Inc., 258 NLRB 1063 (1981); Bryar Construc-
tion Company and M & C Coal Company, 240 NLRB 102
(1979); G and M Lath & Plaster Co., Inc., 252 NLRB 969
(1980); Weather Tamer, Inc. and Tuskegee Garment Cor-
poration, 253 NLRB 293 (1980); Certified Building Prod-
ucts, Inc.; and Carl Fidler, 208 NLRB 515; Radio d Tele-
vision Broadcast Technicians, Local 1264, IBEW v. Broad-
cast Service of Mobile Inc., 380 U.S. 255, 256-257 (1965);
and Ogle Protection Service, Inc. and James L. Ogle, 149
NLRB 545, 546, fn. 1 (1974).
The Union admittedly is a labor organization within
the meaning of Section 2(5) of the Act, and I so find.
I further find that the Union, the designated collective-
bargaining representative for employees in successive
bargaining agreements since 1969, has been and is the ex-
clusive bargaining representative for employees under
the Act in the unit described below.
II. THE UNFAIR LABOR PRACTICES
A. Background-- Whether a Contract Was in Effect
After December 18, 1979
Following expiration of their collective-bargaining
agreement in September 1979, the Union and Respondent
met to negotiate a new contract on October 18, Novem-
ber 1, and December 18, as well as on later occasions
discussed below.
During the December 18 or third negotiating session,
in the aftermath of some usual give and take in the earli-
er sessions, the Union informed Respondent's negotiators
it was dropping its "local issues" (described in G.C. Exh.
5), dropping its pension provision-as to which Respond-
ent had requested "relief--and that it was agreeing to
Respondent's position on limiting retroactivity of a wage
increase to December 18. The Union further agreed to
discuss Respondent's five local issues Respondent had
presented on October 18 at the parties' earlier first meet-
ing. It is clear that the five management proposals spe-
cifically consisted of: (1) a management-rights clause, (2)
a split averages' provision change whereby employee
pay is determined by employee average pay plus mini-
mum wage, (3) a vacation pay formula based upon a per-
centage of an employee's annual earnings, (4) a provision
for mandatory overtime with a "right of discipline," and
(5) incorporation into employee piece rates of a 45-cent
hourly payment then on the clock.
In any event, this cleared the way for the parties to
enter into a stipulation expressly extending their prior
collective-bargaining agreement for an additional 3-year
term, expressly providing for hourly wage increases ef-
fective that day, as well as on September 1, 1980, and
September 1, 1981, and for insurance contributions.
(G.C. Exh. 9.) The agreement further provided for an
additional holiday, "effective third (3rd) year of contract"
(emphasis supplied), elimination of employee pension
benefit and, at "Article V Local Issues," for the parties
to negotiate further, ". .. So-called 'local issuances"' for
60 days, agreeing to make no change in the contract re-
garding such issues during said period. It is clear that his
stipulation en haec verba extended the parties' collective-
bargaining agreement for a new 3-year term, and I so
find. The only "local" subjects them remaining open for
negotiations were those proposed by Respondent on Oc-
tober 18, and listed above, the Union having withdrawn
its own "local issues" proposals prior to the parties' new
agreement, and I so find. Thus, Union Negotiator Adrian
DeMarco, business representative, testified without con-
tradiction that the parties agreed to a money package
and to discuss (Respondent's) local issues, but everything
(else) was to remain "intact." He testified further without
contest that by local issues he understood those on the
494
CAMPO SLACKS, INC.
table on December 18. While the above findings stand on
clear and uncontradicted testimony and require no addi-
tional proof, it is further noted, as argued by the counsel
for the Charging Party in his brief that this finding is
consistent with subsequent conduct of the parties, includ-
ing references by them to a current "contract" even on
dates following the 60-day period for negotiations on the
local issues. Further, such finding is consistent with
Board precedent holding that the parties, in situations
where they enter an agreement providing for the negoti-
ation of modifications, later have consumated an agree-
ment notwithstanding such reopener-type provisions.
Joseph McDaniel, an Individual Proprietorship d/b/a
Custom Color Contractors, 226 NLRB 851 (1976); and
Central Plumbing Company, 198 NLRB 925 (1972).
It is further found that the appropriate bargaining unit
is:
All employees employed by Campo Slacks, Inc., at
its Houtzdale, Pennsylvania, facility, and all cutting
department employees employed by Campo Slacks,
Inc. at its Madera, Pennsylvania, facility; excluding
office clerical employees, executives, administrative
employees and guards, professional employees and
supervisors as defined in the Act. 4
B. The Cessation of Dues Remittances and the
Contributions to the Employees' Insurance Plan by
Respondent
Under the renewed and extended contract, evidenced
by the stipulation (G.C. Exh. 9 and by G.C. Exhs. 3(a)
through (d)), it is uncontroverted that Respondent was
bound by its terms to remit checked-off dues to the
Union, and to make periodic payments into an employ-
ees' insurance fund. (G.C. Exh. 3(a) (art. XVIII, p. 12),
and G.C. Exh. 3(b) par. 5, pp. 3 and 4.)
(1) Regarding the remittance of dues, the parties stipu-
lated that Respondent failed to send the Union checked-
off dues deducted from employees' wages between May
and October 1980. In addition, there is uncontroverted
testimony by the Union's vice president and district joint
board manager, Henry Dropkin, that Respondent, as of
the hearing date June 25, 1981, had not remitted any em-
ployee dues deductions since the previous December 13,
1980.
(2) Regarding issuance payments, the General Counsel
points out in his brief that the complaint alleges the un-
lawful refusal to make such payments on and after the
10(b) date only, viz April 14, 1980,5 even though Campo-
long Sr. admitted no such payments had been made since
April 1979. Campolong's admission is buttressed further
by the testimony of Dropkin that Respondent has made
no such payments for 3 years and further by the uncon-
troverted findings in an arbitration award admitted into
4 This is the unit (absent the J & F employee unit) found appropriate in
Campo I cited above, and there are no facts or contention in the record
to warrant any contrary finding.
I The charge was filed October 14, 1980. The General Counsel cor-
rectly points out, of course, that the violation continued on into the 10(b)
period-an observation both literally and legally accurate since the in-
debtedness and refusals to pay continued after April 14, 1980, and there
were, as well, fresh refusals to pay amounts past within the 10(b) time
frame.
evidence. (C.P. Exh. 13.) It is further clear and uncon-
tested that the Union has sought to secure Respondent's
adherence to its contractual obligations in this regard
only to meet with Respondent's asserted "inability to
pay" coupled with a refusal to honor such committment
or even to provide the Union with information requested
by union counsel to assist in pressing this claim, estimat-
ed by Dropkin to amount, at the time of the hearing, to
over S100,000.
There can be no other conclusion under law then that
by repudiating the terms in its then current contract with
the Union by which it was required to remit dues deduc-
tions and make insurance funds payments, Respondent
acted in derogation of its bargaining obligation under
Section 8(d) of the Act. Morelli Construction Company,
240 NLRB 1190 (1979). Equally clear is the established
maxim that economic necessity, here merely professed,
"is not cognizable as a defense to the unilateral repudi-
ation of monetary provisions in a collective-bargaining
agreement." Schuener Construction Company, 258 NLRB
1275 (1981), citing Morelli supra. I find, accordingly,
that by refusing and failing to remit dues to the Union
and make payments into the insurance benefits plan as re-
quired by its then current contract with the Union, for
the periods noted, Respondent violated Section 8(a)(5)
and (I) of the Act. Domestic Steel Sales Co., Inc., 258
NLRB 785 (1981); Hyde Park Construction Company, 258
NLRB 849 (1981); Quick-Lahmann Express, Inc., 262
NLRB 220 (1982); Merryweather Optical Company, 240
NLRB 1213, 1215 (1979); and Independent Stave Compa-
ny, 248 NLRB 219 (1980).
C. Whether Respondent Unlawfully Modified Several
Contract Provisions
Following their December 18, 1979, meeting the par-
ties attended eight or nine negotiating sessions, the final
one on this record placed on May 14, 1981. There were,
as is normally the cases many points of contact along the
way, where positions were taken in phone contacts, indi-
vidual person-to-person communications, separate griev-
ance meetings, and arbitration sessions, as well as media-
tion proceedings. All letters, minutes, exhibits, and testi-
mony concerning these contacts, as well as the negotiat-
ing sessions, have been reviewed for relevancy to the
issues.
As found above, from December 18, 1979, onward, the
parties were bound by a 3-year contract. s In this agree-
ment the parties were on record to having agreed to fur-
ther negotiations only as to Respondent's "local issues,"
described above. As is often the case, when parties to
such an agreement have the security or certainty of such
agreement behind them, they venture even beyond the
subjects left open for further discussion and possible
agreement; here Respondent's five local issues, and, in an
a Under the circumstances, I find Woicik's January 7, 1980, letter as
Respondent counsel to mediation and conciliation wherein he notes,
no agreement has been reached" (G.C Exh. 10) nothing more than
a bargaining tactic given the earlier bilateral agreement and Respondent's
later references to a "contract." Whatever the motive, for reasons dis-
cussed below, such would not operate to cancel the clear language creat-
ing the earlier contract.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effort to see whether the new bargaining context will
allow it, seek advantages in other areas. The freedom to
do this contributes, in the end, to more stabilizing con-
tracts and is guaranteed by the established maxim that
neither side can be required to accept proposals in such
areas, i.e., midterm modifications, without its consent.
The Standard Oil Company (Ohio), 174 NLRB 177, 178
(1969).
The record in this regard shows that Respondent, in a
meeting on January 28, 1980, with Union Business Rep-
resentative Adrian DeMarco, Sr. (the parties' fourth ne-
gotiating session), raised proposals concerning both the
original five local issues, and other matters, viz holidays,
and a 1,400-hour eligibility standard for vacation pay,
DeMarco indicating in testimony that Respondent coun-
sel Woicik was to prepare "this" in writing and get back
to the Union because DeMarco was unfamiliar with how
these proposals would be implemented-how they would
work.
In fact Woicik did send DeMarco written proposals in
a letter dated June 20, 1980. Since the record is silent as
to whether or not there were any intervening sessions
between the parties, assumedly there were none given
the detailed testimony throughly covering all contacts
between the parties, it is unusual that Woicik's letter
would couch its contents as embodying "substantially
our agreements on contract changes." (G.C. Exh. 16(a).)
Equally surprising and totally unwarranted by the facts
is that Woicik included in the alleged "agreed-to
changes" matters such as trial periods for new employ-
ees, specifically subjecting employees who refuse over-
time to discharge, past and future wage increases for
piece rate workers to be incorporated into the piece rate,
and an extension of the no-strike provision to cover all
disputes, 7 which had not even been proposed on January
28. (G.C. Exh. 16(b).) In addition, the proposal on holi-
day eligibility was outside the scope of Respondent's
original five local issues, leaving only three such propos-
als fairly within the ambit of subjects further after De-
cember 18, 1979; viz, split averages, a management-rights
clause, and vacation eligibility. But this is actually not a
list of all the proposed modifications set forth on the face
of Respondent's proposal. As alertly pointed out in the
Charging Party's brief, Respondent's proposed manage-
ment-rights clause (a topic within the local issues) was
characterized as a new "Article XIX," which would
have a fortiori supplanted the existing article XIX enti-
tled "More Favorable Practices," a matter previously un-
mentioned and entirely outside the local issues. (G.C.
Exh. 3A, p. 13.) The same holds true for Respondent's
no-strike clause proposal, which as already noted had not
even been discussed on January 28. This proposal, styled
to be an "amendment" actually reads:
7. Article XX of the Agreement is amended to
read (emphasis supplied) as follows: "No Strike-No
Lockout"
There then follows a paragraph limited to the no-strike
provision alone, with no reference to the preexisting arti-
; Under then existing contract provisions a strike over nonpayment of
insurance contribution was not banned.
cle XX language on successorships, thereby eliminating
same.8 (See also C.P. Exh. 3.)
On July 24, 1980, Woicik wrote DeMarco that the
Company had "no alternative" but to put these proposals
into effect on the following August 18 and to do so ret-
roactively. This was another strange letter of dubious
motive given the substantially expanded and previously
undiscussed modification proposals, which forseeably
warranted considerable time for union study, not to men-
tion the fact as assuredly was known or could have
become known by Woicik that the Union's offices were
closed, as was Respondent's plant about that time, for a
regular 2-week long midsummer vacation. In addition,
Respondent's proposal for retroactivity in the package
was likewise a new wrinkle not touched upon earlier,
though there are arguments on both sides whether the
period for implementation, at least on the "5 local issues"
area would be encompassed within the parties' Decem-
ber 18, 1979, agreement. On August 6 by letter to
Woicik, Union Vice President Henry Dropkin objected
to the proposed unilateral modifications inviting further
negotiations and expressly noting that the Union had
never accepted them, and that the proposals were not
promulgated in accordance with the parties then current
agreement. (G.C. Exh. 18), Respondent at that time did
not proceed to implement the proposals.
The parties met on September 9, 1980 (fifth meeting),
and the proposals were gone over, the union representa-
tives noting that they thereby were specifically not waiv-
ing the Union's right to protest the proposals as not
being part of the "local issues" for which the parties had
allowed further negotiations-that the proposals were
beyond the scope of such local issues. (Resp. Exh. 7.)
There was discussion on Respondent's proposals, clarifi-
cation in meanings, union agreement with the concept of
management rights to operate at will within the frame-
work of the contract assuming "just cause" and no
agreement on extending the no-strike clause to insurance
contribution matters.
At the sixth meeting, on September 26, the Union sub-
mitted counterproposals including a willingness to agree
to an extension of the trial period for new employees to
an additional 30 days; willingness to accept some of the
overtime proposal with a 3-day posting in advance and
no discipline; and nearly complete agreement with Re-
spondent's proposal for a new article IV, section 8, pro-
viding for wage increases to be incorporated into the
piece rate. (G.C. Exhs. 24 and 16(b), p. 2.) In the face of
this progress Woicik's declaration later in that meeting
that he would implement certain Respondent proposals
unilaterally unless the Union agreed to postpone an arbi-
tration hearing, scheduled for October 1, claiming fur-
ther the Union was not bargaining in good faith9 and
even further that there was an impasse in negotiations
was, at the time the statements were made, both unac-
8 Either by typographical error or otherwise the successorship article
and the article on contract terms are both numbered XX. (O.C. Exh. 3A,
p. 13.)
9 This accusation apparently arose on the heels of union notification to
Woicik that a member on its negotiating team had taken ill and had to
leave.
496
CAMPO SLACKS, INC.
countable and with serious portent for collective bargain-
ing. Nevertheless, a further date for negotiations was set,
which transpired on October 8, the seventh meeting. 'o
At this seventh meeting further union counterpropos-
als were made on the extension of the trial period for
new employees, overtime, vacation eligibility, and holi-
day requirements, and the Union informed Respondent
that it had no problem with a management-rights clause
if reasonably applied. Respondent rejected the counter-
proposals but offered a provision allowing for arbitration
of certain matters. Matters remained unresolved. The
parties again met on October 30, 1980, but without suc-
cess, a large stumbling block, according to Union Vice
President Dropkin, being Respondent's extraordinary ar-
rearages in making payments to the insurance funds, re-
sulting in serious bill-paying problems for union mem-
bers. Nonetheless, Dropkin informed Woicik he would
try to come up with something and call him in 2 weeks.
Dropkin's testimony under very precise and continued
cross-examination that he never said there could be "no"
contract without a settlement of the insurance arrearages
question was uncontradicted and is credited. I find the
Union raised the matter as an important one-not as a
condition to a resolution in negotiating. Respondent's
"intimation" to the contrary is therefore rejected.
At any rate, Dropkin later did call Woicik on two oc-
casions to discuss the proposed changes and testified in
undenied testimony under examination by Woicik that
the latter manifested disinterest in the changes, and was
nasty and "trying to destroy the Union."
By telegram dated November 25, 1980, Respondent
notified Dropkin that it was unilaterally putting into
effect its final contract offer," retroactive to the "expi-
ration" of the prior contract. Woicik's telegram went on
to say that Respondent would be pleased to continue ne-
gotiations at the Union's convenience. (G.C. Exh. 31.)
Dropkin, in turn, objected to Woicik's announced unilat-
eral action by letter dated December 3, 1980, also indi-
cating the Union stood ready to discuss the issues. (G.C.
Exh. 32.)
The conclusions obtaining on some of the issues arising
from the foregoing flow quite readily from the facts.
Since it has been already found that a binding collective-
bargaining agreement lasting for 3 years after December
18, 1979, existed, and that the parties agreed only to ne-
gotiate further on five local issues sought by Respondent,
it follows that Respondent's admitted unilateral changes
to that agreement in respects where there had been no
agreement for later negotiations, viz, matters outside the
five local issues, clearly constituted unlawful midterm
modifications violative of Sections 8(d) and 8(a)(5) and
(I) of the Act. Inta-Roro., Incorporated, 252 NLRB 764,
tO At the October I arbitration. Woicik announced that Respondent's
contract provisions involving issues coming before the arbitrator had al-
ready been implemented retroactive to September 1, 1979, and that, ac-
cording to DeMarco's undenied testimony, Woicik stated he did not feel
at that point that there was a contract. The parties nevertheless proceed-
ed with arbitration, arranging for the arbitrator to decide the issue on
both the assumption of a pre and post change contract provision securing
two awards In his brief to the arbitrator, Woicik stated Respondent
made the changes unilaterally. (G.C. Exh. 29, p. I.)
11 A detailed listing is set forth in C.P. Exh. 3; while the Union's then
most current set of counterproposals is contained in C.P. Exh. 2.
768 (1980); Oak Cliff-Golman Baking Company, 207
NLRB 1063 (1973); Nassau County Health Facilities Asso-
ciation, Inc., et al., 227 NLRB 1680 (1977); and The
Boeing Company, 230 NLRB 696.
Moreover, Respondent's reference to an impasse as
justification for its unilateral action is totally misplaced
and without any legal support since the contract matters
outside Respondent's five local issues (identified above in
detail) could not be lawfully modified without the
Union's consent which here was expressly withheld irre-
spective of whether or not there was an impasse. Inland
Cities, Inc., 241 NLRB 374 (1979). In short the parties to
a contract need not bargain in midcontract over matters
not covered by a reopener clause, Leveld Wholesale, Inc.,
218 NLRB 1344, 1349 (1975); Inta-Roto Incorporated,
supra; Standard Oil Company, supra; and Los Angeles
Marine Hardware Co., et al. 235 NLRB 720, 735 (1978).
While slightly apart from the foregoing analysis, the
answer to the question-whether Respondent's unilateral
implementation of its proposals on matters fairly within
the ambit of the parties' "reopener" (Respondent's five
local issues) was unlawful as well-flows just as readily
from the facts. In the first place a careful review of the
record discloses no basis to conclude that the parties
were at an impasse on the local issues as to which Re-
spondent announced its unilateral modification. Regard-
ing one of those items, overtime, there had been steady
progress in negotiation, as proposals were exchanged and
the notice requirement as well as type of disciplinary
action was evolving to conform to the parties, bargain-
ing. (C.P. Exh. 3.) As to split averages, or midpoint, as
noted there had been movement from the original pro-
posal by Respondent to provide for arbitration absent
agreement and, although the Union had not, as of the
preparation of Charging Party's Exhibit 2, agreed to any
change there was no indication whatsoever that move-
ment in other than current discussions about other mat-
ters might not have provoked movement here to agree-
ment. Regarding a third item within the five local issue
category, the Union in fact agreed to incorporate future
raises into the piece rates, but not the 45 cents negotiated
earlier, thereby substantially agreeing with this proposal.
Regarding a fourth such subject, the Union and Re-
spondent were not far apart on the matter of eligibility
standards for vacations-though the distance between
their two positions certainly required further negotiations
before an agreement could be confidently predicted. Cer-
tainly, the difference between a 1,440-hour standard and
800 hours did not defy narrowing sufficient to make an
agreement possible. Finally, on the matter of the man-
agement-rights clause two observations are in order.
First it is clear that the parties' versions of such a pro-
posed clause were not drastically different so their re-
spective positions did not defy reasonably easy mutual
accommodations. However, it must also be noted that
Respondent's management-rights proposal was really
twofold. One side of it called for such a clause, the other
required deletion of the then existing clause XIX in the
contract relating to "More Favorable Practices," a sub-
ject clearly outside the five local issue coverage. Ac-
cordingly, on both counts, absence of impasse and being
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside the "reopener," this proposal on management
rights could not be unilaterally imposed. For the forego-
ing reason as to the above-remaining subjects, viz absence
of impasse-the facts showing it is not possible to con-
clude that further bargaining would be futile as there
were rays of hope-I conclude that Respondent's imple-
mentation of proposals even within the ambit of the par-
ties' agreement to negotiate after December 18, 1979,
was plainly unlawful conduct violative of Section 8(a)(5)
and (1) of the Act. Inta-Roto Incorporated, supra; Taft
Broadcasting Co., WDAF AM-FM TV, 163 NLRB 475,
478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968); see also
Seattle-First National Bank, 241 NLRB 751, 751-753,
(1979) [vacated by 265 NLRB No. 55 (1982)], in 241
NLRB 751, the Board noted inter alia that "Mere discus-
sion of unresolved items falls far short of unlawful,
persistent demands to the point of impasse" (p. 753.).12
D. Respondent's Repudiation of the Collective-
Bargaining Agreement and the Unilateral Change of
Vacation Practices
(1) Following the Woicik and Dropkin exchange of
letters in November and December 1980 Union counsel
Leonard Schneider wrote Woicik officially requesting
the arbitration of seven grievances by letter dated Janu-
ary 16, 1981. Woicik, who, in a brief to arbitrator Joseph
on March 10 made a similar claim (G.C. Exh. 33(a), fn.
5), replied on April 7, 1981, denying arbitrability of the
grievances on the ground that "labor contract negotia-
tions for a contract renewal are still open and not final-
ized," thereby effectively, on Respondent's behalf, unilat-
erally canceling the existing arbitration clause (art. 15 of
the contract). (G.C. 3A.) Respondent's position, that it
appeared the Union had a right to strike because of the
"unfinalize" negotiations and therefore it, Respondent,
could refuse arbitration is unsupported. As found herein
earlier, the contract was firmly in place during this
period so that Respondent's midterm cancellation of the
arbitration provision was clearly a violation of Section
8(a)(5) of the Act. Thus, it is undenied that the griev-
ances for which the Union sought arbitration concerned
mandatory subjects of bargaining dealing directly with
employment terms and conditions with which the agree-
ment to arbitrate was "inextricably intertwined" so that
its cancellation was an unlawful unilateral change of a
provision dealing with a mandatory subject of bargian-
ing. Sea Bay Manor Home for Adults, 253 NLRB 739
(1980). Moreover, even under Woicik's distorted analy-
sis-being "between contracts"-Respondent was clearly
not privileged to refuse to abide by the arbitration provi-
sion as to a matter arising during the life of the contract.
Digmor Equipment and Engineering Company, Inc., 261
NLRB 1175 (1982). Since this matter was thoroughly
litigated at the hearing, though not alleged in the com-
I2 Even under a strained interpretation of the parties' bargaining pos-
tures, at worst only somewhat static, Respondent could not make unilat-
eral changes in the "local issues" area on the grounds of "impasse" given
its commission of unfair labor practices helping create same and violating
Sec. 8(aXS) of the Act. Hudson Chemical Company, 258 NLRB 152
(1981); Newspaper Printing Corporation, 232 NLRB 291 (1977). Atlas Metal
Parts Ca, Inc., 252 NLRB 205, 223 (1980); and Seattle-First National
Bank supra
plaint, I find Respondent's conduct in this regard an ad-
ditional unlawful act. Stokely-Van Camp, Inc., 259 NLRB
961 (1982); and Merryweather Optical Company, 240
NLRB 1213 (1979).
To worsen matters, in the April 7, 1981, letter Woicik
also took pains to declare Respondent's position to be, in
effect, that there was no contract at all stating, in addition
to an earlier paragraph concerning the arbitration clause
alone that:
It is our position that the Company and the Union
currently are between labor contracts.
I find that Respondent thereby entirely repudiated its
collective-bargaining contract with the Union in plain
violation of fundamental law, thereby still further violat-
ing Section 8(a)(5) and (1) of the Act. Carrothers Con-
struction Company, Inc., 258 NLRB 175 (1981).
(2) The credible and undenied testimony by employee
Joan Lightner shows that Respondent uniformly fol-
lowed the practice of shutting down the plant during the
employees' 2-week annual summer vacation, the first 2
weeks in July. Lightner testified that this practice had
been followed every year for 13 years. '3
The record shows that on April 28, 1981, Joseph Cam-
polong, Jr., informed Lightner, local union president
since 1978, that the vacation period that year, according
to his father's decision, would be "one" week in July and
I week in September and that the shops would be closed
those weeks (rather than the first 2 weeks of July as was
the usually uninterrupted practice). Lightner objected
but Campolong indicated the notice would be posted on
the bulletin board. Later Union Representative DeMarco
also objected on the grounds the contract called for va-
cation being scheduled the first 2 weeks in July. During
discussion over an arbitration award later the Union
again objected to the proposal, Respondent continuing its
position as to when it wished to close the plant.
Thereafter, on May 15, 1981, Respondent posted a
notice on the employee bulletin board announcing the
plant would be closed the first week in July and the first
week in September. The notice also stated that (unlike
the established practice) the plant would be opened the
second week in July though employees were were free
to take their vacations at such time. Respondent correct-
ly notes that the contract language en haec verba refers
only to when vacations must be scheduled so that its
action as described in the employee notice (G.C. Exh.
37) allowing employees to continue taking the first 2
weeks in July on the surface of things appeared not to
violate the contract. However, there was a long-estab-
lished 13-year practice paralleling the administration of
the vacation provision which called for the plant to be
shut down during the first 2 weeks in July vacation
period. Employee interests and rights evolved in the
course of this practice becoming established and those
rights or expectations became woven into the settled
fabric of working conditions. When this occurred, as it
l Except on an occasion when the Union had agreed to do otherwise,
only to learn of problems arising for employees not eligible for the vaca-
tion benefit when they tried to sign up for unemployment compensation.
498
CAMPO SLACKS, INC.
had done by 1981, it is clear that such a condition of em-
ployment, whether in the contract or outside its terms,
and whether or not measurable in money could not then
be unilaterally modified or canceled. Laredo Coca Cola
Bottling Company, 241 NLRB 167 (1979). Respondent's
reference to its willingness to discuss the matter with the
Union as supporting the view that its action was not uni-
lateral is without merit as I find such conversation con-
stituted mere notification of a fait accompli. It is conclud-
ed therefore, that by changing its vacation scheduling
practice in the respect noted, viz not closing the plant in
the second week of July, Respondent unilaterally
changed a term or condition of employment without bar-
gaining with the Union thereby violating Section 8(a)(5)
and (1) of the Act. The Sacramento Union, 258 NLRB
1074, fn. 12. (1981).
E. Respondent's Refusal To Furnish Information
By letter dated August 25, 1980, to Woicik the Union
requested information from Respondent concerning the
identification of officers, assets, sources of assets, and
creditors of Campo and J & E as well as officers and
shareholders of JBC of Madera. The plain and uncontest-
ed reason for seeking the information was to enable the
Union to assist in administering the insurance fund agree-
ment to which Respondent was a party, that is, to gather
information directly relevant to the Union's duty to seek
enforcement of the fund's provisions via the available
legal remedies for securing payment by Respondent of its
arrearages. Respondent admitted its refusal to provide
such information in its answer. (G.C. Exh. I-M(5).) At
the hearing Respondent's defense was that such informa-
tion was being submitted via depositions in another
action against Campolong personally, but on cross-exami-
nation this turned out not to be the case. Since the infor-
mation was undeniably necessary and relevant to the
matter of delinquency in Respondent's payments-viz
who or what entities in the closely knit Campolong
family of companies possessed reachable assets to satisfy
the payments owed to the fund and through the fund to
employees represented by the Union, it is concluded that
Respondent's refusal to furnish same violates Section
8(a)(5) of the Act. N.L.R.B. v. Acme Industrial Co., 385
U.S. 432 (1967); Associated General Contractors of Califor-
nia, 242 NLRB 891 (1979). The Union also requested in-
formation concerning Respondent's timestudies in a letter
dated August 26, 1980. It is not controverted that this in-
formation undeniably in Respondent's possession was
needed by and relevant to the Union to enable the Union
to prepare for the further processing of grievances re-
ferred to (G.C. Exhs. 22 (a) and (b)) at the arbitration
hearing scheduled for October 1, 1980. Respondent's
only defense to not providing the information is that the
Union declined to give Respondent its (the Union's) ti-
mestudies. Respondent presented no proof tending to es-
tablish the existence of such union studies, or any basis to
conclude the one was contingent upon the other. More-
over, Respondent did not provide any of the requested
information until October 1, 1980, the morning of the
hearing itself, over a month after the request, an unex-
plained and unjustified delay in meeting its statutory obli-
gation.1 4 I therefore find Respondent failed to timely
provide the requested information in violation of Section
8(a)(5) of the Act. Aeolian Corporation, Ivers & Pond
Piano Division, 247 NLRB 1231, 1243-45 (1980).
F. The Threatened and Implemented Unlawful
Unilateral Action in Reprisalfor the Union's Refusal
To Postpone Arbitration
There is no dispute that Woicik threatened the Union
and bargaining unit employees with unlawful implemen-
tation of contract provisions involved in a then forth-
coming arbitration unless the Union were to agree to
postpone the October 1, 1980, arbitration during the par-
ties' fifth negotiating session held on September 9, 1980,
described hereinabove. DeMarco's testimony describing
the threatened action remained undenied at this hearing
and Woicik was unable to explain any tenable basis
whatsoever, in fact or law, why the Union's position in
refusing to postpone an arbitration could justify the as-
sertion of an impasse.' 5 Lest there be any doubt that Re-
spondent took the unilateral action regarding the matters
coming before the arbitration on October 1, 1980, pursu-
ant to the September 26, 1980, threat, such doubt is dis-
spelled in Woicik's brief to arbitrator Morgan (G.C. Exh.
29) wherein he states, inter alia:
It is the position of the Employer that the unwill-
ingness of the Union to postpone the arbitration
until contract items critical to the grievances have
been resolved in negotiations has created an im-
passe, and that unilateral action by the Employer is
appropriate under the Labor Act under the circum-
stances.
It is well established that threatened reprisal based on the
exercise of employees' rights under the Act, which
would include the exercise of rights set forth in a collec-
tive-bargaining contract's grievance procedure provision
providing for arbitration would necessarily impinge on
employees' exercise of rights guaranteed under Section 7
of the Act. Where, as here, such threat amounts to en-
forcing a demand that employees, via their collective-
bargaining representative, surrender such rights on pain
of being denied the equally vital right to engage in col-
lective-bargaining a further violation of the Act is readi-
ly apparent. Thus, by the threat of recognizable detri-
ment or harm Respondent sought to force employees to
give up their right to a definitely scheduled arbitration
thereby violating Section 8(a)(1) of the Act, and by using
as the threatened retaliating act itself the cessation of its
duty to continue collective bargaining also violated Sec-
tion 8(a)(5) of the Act, a violation compounded when,
pursuant to such unlawful action, it in fact unilaterally
"4 The record is unclear about any production of requested sticky
sheets, related to one of the grievances.
t' Now would the sudden sickness-caused absence of a union negotiat-
ing committee member at this meeting come anywhere close to warrant-
ing Woicik's assertion that the Union was delaying matters and bargain-
ing in bad faith-a term more aptly applicable to such an unsupported
comment.
499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
implemented its own, unaccepted contract provisions.I 6
B. C. Studios, Inc., 217 NLRB 307, 312-313 (1975);
Stackpole Components Company, 232 NLRB 723, 732
(1977); Inta-Roto, supra; and Campo Slacks, Inc., and J &
E Sportswear Inc., supra.
G. Respondent's Failure To Bargain in Good Faith
Considering all the foregoing it must be concluded
that Respondent clearly harbored no intentions of reach-
ing an agreement with the Union. Respondent has taken
positions that have been destructive of any possibility
that meaningful or fruitful negotiations might even tran-
spire, let alone lead to agreement on the unresolved
issues. Southside Electric Cooperative, Inc., 247 NLRB 705
(1980). Thus it has repudiated the base for negotiating
local issues by taking the position that there was no basic
agreement at times subsequent to the December 18, 1979,
execution of such an agreement. The lack of a genuine
desire to reach agreement is evidenced by Respondent's
inexplicable withdrawals from agreements considered the
stepping stones to a final agreement and is an ominous
signal of bad-faith bargaining.
As has been noted before, "The Board has concluded
that an employer's refusal to comply with existing con-
tract terms concerning grievances is a violation of Sec-
tion 8(a)(5) of the Act, [citing the Massillon Publishing
Company, 212 NLRB 869 (1974)], as are demands to re-
negotiate matters previously agreed upon citing [The
Shaw College at Detroit, Inc., 232 NLRB 191 (1977)]."
(Authority cited below.) Such conduct by Respondent,
inter alia, provides the basis for finding its action evi-
dences bad faith in the instant case. The Mead Corpora-
tion, 256 NLRB 686 (1981).
As also noted further above, the Union for its part
quite clearly and properly emphasized the importance to
Respondent of cleaning up its arrearages in contract re-
quired payments to the insurance fund, and Respondent's
suggestions at the hearing that such may have justified
Respondent's unilateral action is wholly without merit,
as there was no bad faith on the Union's part even if its
efforts could be considered stepped up at the negotia-
tions in question. Edward Z. Holmes Detective Bureau,
Inc., 256 NLRB 824, fn. 4 (1981), citing Chambers Manu-
facturing Corporation, 124 NLRB 721, 725 (1959), enfd.
278 F.2d 715 (5th Cir. 1960).
Continuing to violate contractual obligations during
negotiations as the Respondent did by failing to remit
dues and make contributions to the employees' insurance
fund is to foreseeably jeopardize the collective-bargain-
ing process as shown here when employees experienced
serious problems with unpaid bills arising from Respond-
ent's arrearages. Cancelling the arbitration provision in-
volving several then current grievances, changing exist-
ing employment conditions in wholesale fashion to the
point where employment benefits, wages, piece rates,
overtime provisions, and almost the entire body of work-
place conditions is left unrecognizable, and refusing rele-
h This conclusion is in agreement with the Charging Party's conten-
tion on brief, which I find well supported by the record evidence arising
from this fully litigated matter, which therefore warrants such determina-
tion even though not specifically alleged as a separate violation in the
complaint. Stokely Van Corp.. Inc.. supra.
vant information to the Union thereby tending to hobble
it in efforts to enforce the agreement foreseeably and im-
permissibly damage any prospect for productive bargain-
ing and industrial relations stability in that workplace, as
do Respondent's unlawful threats to do so and such con-
duct is therefore at odds with statutory mandates and ob-
jectives. Respondent has failed to come forth with any
justifying reasons for such conduct. I therefore find that
the complaint's allegation that Respondent has failed to
bargain in good faith thereby further violating Section
8(a)(5) of the Act is strongly supported by the record.17
CONCLUSIONS OF LAW
1. Campo Slacks, Inc.; J & E Sportswear, Inc.; JBC of
Madera, Inc.; and Joseph Campolong, Sr. (as the alter
ego for the preceding three entities), are individually and
jointly employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. 18
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act and has been and is the
exclusive bargaining representative of employees in the
following unit herein found appropriate for purposes of
collective bargaining:
All employees employed by Campo Slacks, Inc., at
its Houtzdale, Pennsylvania, facility, and all cutting
department employees employed by Campo Slacks,
Inc. at its Madera, Pennsylvania, facility; excluding
17 Early on in this hearing, while undertaking efforts to anticipate or
be in a position to understand and thereby rule upon objections, the
course of testimony, and the issues before me, I commented midstream in
discussion with representatives in an inquiring manner that good-faith
bargaining was not then an issue in the case. There was an affirmative
response to this early inquiry and Respondent counsel Woicik points at
this one portion in the entire recorded hearing in his post-hearing brief,
noting cryptically that Respondent's good faith in bargaining was not an
issue in the case, citing transcript pages continuing the above comments.
Notwithstanding the above, the record is complete on that issue, and
no party, it is obvious, was either lulled into not addressing such issue or
prevented from litigating same. In this connection, I note further that the
consolidated complaint served on the parties contains the allegation Re-
spondent had refused to bargain in good faith and that said complaint al-
legation was not amended out or striken at the hearing. Further, the con-
clusion herein that Respondent bargained in bad faith rests upon the un-
disputed facts underlying the determination that Respondent violated the
Act in the numerous specific manners throughly aired at the hearing,
which Respondent had every opportunity to meet. Given the complaint
notice beforehand that Respondent's bad faith in negotiations was in-
volved in the case, and that the matters underlying a determination of
such issue were thoroughly litigated by all parties, I conclude Respond-
ent is in no way prejudiced by the noted brief and incomplete colloquy
and that therefore such a determination, strongly arising from all the now
assembled evidence, which Respondent did not then or since contest, is
clearly justified.
10 The determination that Joseph Campolong, Sr., as the alter ego of
these entities, is jointly and personally liable for make-whole remedies
flows from undenied record facts establishing that Campolong runs these
integrated enterprises, personally has guaranteed corporate debts, loaned
it money without seeking repayment, and personally decides whether to
continue or put an end to operations, secures the corporation business
personally, negotiates labor contracts, and decides issues arising thereun-
der. He is the only real force behind the corporation structures involved
herein, and without whose active presence such would be mere lifeless
shells. Accordingly, for any effective remedy one must look "beyond or-
ganizational form" because Campolong has so integrated or intermingled
his assets and affairs that "no distinct corporate lines are maintained."
Concrete Manufacturing Company and its Directors, Officers and Agenrt' et
at, 262 NLRB 727 (1982).
500
CAMPO SLACKS, INC.
office clerical employees, executives, administrative
employees and guards, professional employees and
supervisors as defined in the Act.
3. Respondent Campo Slacks, Inc., and the Union are
parties to a collective-bargaining agreement effective De-
cember 18, 1979, for a 3-year term and covering employ-
ees in the unit described above.
4. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) by threatening to change pro-
visions in the collective-bargaining agreement unilateral-
ly unless the Union agreed to postpone scheduled griev-
ance arbitration.
5. Respondent has violated Section 8(a)(5) and (1) of
the Act by ceasing to transmit to the Union dues deduc-
tions and failing to make insurance fund contributions as
required by the collective-bargaining agreement; by uni-
laterally modifying the collective-bargaining agreement
in the numerous respects described in the body of this
Decision; by repudiating the entire collective-bargaining
agreement; by unilaterally cancelling the arbitration pro-
vision in the collective-bargaining agreement; by unilat-
erally changing established vacation scheduling practices
with respect to plant closing; by failing and refusing to
honor the Union's requests for relevant information nec-
essary for administration and enforcement of the collec-
tive-bargaining agreement; and by ceasing to bargain
with the Union over certain matters because the Union
would not postpone scheduled grievance arbitration.
6. By the foregoing conduct described above in para-
graphs 4 and 5 Respondent has failed to bargain in good
faith with the Union thereby further violating Section
8(aX5) and (1) of the Act.
7. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(aX5) and (1) of the Act, I shall recommend
that it be ordered to cease and desist therefrom, and to
take certain affirmative action designed to effectuate the
policies of the Act.
To remedy Respondent's violations of Section 8(aX5)
and (1) of the Act, I shall recommend, inter alia, the fol-
lowing: that Respondent be ordered to cease and desist
from failing to bargain in good faith with the Union.
I shall further recommend that Respondent be ordered
to pay to the Union's insurance fund all the contributions
which it should have made pursuant to the terms of the
collective-bargaining agreement. In said connection it is
clear that the Union continued to make demands within
the 10(b) period for all such amounts due-estimated at
totaling S100,000-and that Respondent continued to fail
and refuse to make any payments within the 10(b)
period. Accordingly, this recommended Order is intend-
ed to cover all arrearages, as well as employee costs in-
curred due to the lack of insurance arising from Re-
spondent's conduct. 1 9
19 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on unlaw-
I shall also recommend that Respondent be ordered to
transmit to the Union all membership dues Respondent
has withheld from the wages of the unit employees (or
shall withhold) under the collective-bargaining agree-
ment, with interest computed thereon in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651.20
It shall further be recommended that Respondent be
ordered, upon the Union's request, to rescind all unilater-
al modifications of the collective-bargaining agreement
and conditions of employment, herein found unlawful;
and upon the Union's request to reinstate2 the previous-
ly existing provisions and conditions in force at the time
of such modifications and to abide by same during the
duration of the collective-bargaining agreement and after
its expiration unless after said expiration and the absence
of any new contract a valid impasse in bargaining as to
such a provision or established condition should occur
and Respondent has bargained in good faith with the
Union up to such time. Further recommended will be
that Respondent make payments as necessary to also oth-
erwise restore the status quo ante, plus interest as defined
above in the reference to Florida Steel Corporation, supra
and footnoted cases. Seattle-First National Bank supra
In addition, it shall be recommended that Respondent
reinstate and honor the arbitration provision in the col-
lective-bargaining agreement and that it process all
grievances at such level pursuant to the parties' contract
on or after Respondent's cancellation of said provision
on April 7, 1981, also making payments, as necessary, to
restore employees to their status quo ante, plus interest as
defined above.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, as amended, I hereby issue the following rec-
ommended:
ORDER2 2
The Respondent, Campo Slacks, Inc.; J & E Sports-
wear, Inc.; JBC of Madera, Inc.; and Joseph Campolong,
Sr., Houtzdale and Madera, Pennsylvania, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing to bargain collectively in good faith con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment with Pittsburgh Joint Board,
fully withheld fund payments. I leave to the compliance stage the ques-
tion whether Respondent must pay any additional amounts into the bene-
fit funds in order to satisfy the Board "make whole" remedy. These addi-
tional amounts may be determined, depending on the circumstances of
each case, by reference to provisions in the documents governing the
funds at issue and, where there are no governing provisions, to evidence
of any loss directly attributable to the unlawful withholding action,
which might include the loss of return to investment of the portion of
funds withheld, additional administrative costs, etc., but not collateral
losses. Merryweather Optical Company, 240 NLRB 1213 (1979).
go See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962).
si In short to restore the status quo ante as of December 18, 1979, if so
requested by the Union. The Mead Corporation. supra.
'2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Clothing and Textile Workers Union,
AFL-CIO, as the exclusive bargaining representative of
the employees in this appropriate unit:
All employees employed by Campo Slacks, Inc., at
its Houtzdale, Pennsylvania, facility, and all cutting
department employees employed by Campo Slacks,
Inc. at its Madera, Pennsylvania, facility; excluding
office clerical employees, executives, administrative
employees and guards, professional employees and
supervisors as defined in the Act.
(b) Unilaterally implementing collective-bargaining
proposals made by it during the term of an existing col-
le&tive-bargaining agreement.
(c) Unilaterally implementing collective-bargaining
proposals made by it as to matters open for negotiations
during the term of an existing collective-bargaining
agreement but without the presence of a valid preexisting
impasse in bargaining.
(d) Refusing to remit to the Union dues deducted
under an existing collective-bargaining agreement.
(e) Failing to make required contributions to the insur-
ance fund as provided in an agreement with the Union.
(f) Failing to honor union requests for information nec-
essary and relevant to the Union's administration and en-
forcement of a collective-bargaining agreement.
(g) Threatening to make unlawful unilateral changes in
a collective-bargaining agreement unless the Union
agrees to postpone grievance arbitration as contained in a
collective-bargaining agreement.
(h) Implementing unilateral changes in existing con-
tract provisions because the Union refuses to agree to
postpone scheduled grievance arbitration.
(i) Rescinding the arbitration clause in the collective-
bargaining agreement, and refusing to arbitrate griev-
ances.
(j) Abrogating or canceling the entire collective-bar-
gaining agreement.
(k) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
guaranteed under the Act.2 3
2. Take the following affirmative action:
(a) Upon the Union's request, reaffirm, honor, and
apply all the terms in the collective-bargaining agree-
ment with the Union executed on December 18, 1979, in-
cluding arbitration of grievances, remittance of dues,
payments to the insurance fund, and providing informa-
tion thereto.
(b) Upon the Union's request rescind all unlawful uni-
lateral actions described above and make employees
whole for any losses suffered by them as a result of Re-
spondent's unilateral actions in canceling, modifying, and
repudiating contract terms and conditions of employment
and implementing new contract provisions unilaterally,
making payments as necessary to restore the status quo
23 Respondent's serious violations of Sec. 8(a)(l) and (5) have a deeply
disturbing effect on industrial relations stability and demonstrated a set-
tled proclivity to interfere with and inescapably coerce employees in
their rights to engage in concerted activities in the form of collective bar-
gaining by their chosen representative, one of the rights lying within the
core of Sec. 7, and a broad order as requested is therefore clearly war-
ranted. Hickmott Foods, Inc., 242 NLRB 1357 (1979).
ante, plus interest, all as defined in the Remedy section in
this Decision.
(c) Make all payments to the insurance fund as re-
quired by the collective-bargaining agreement.
(d) Reimburse any employee for any expenses incurred
by the employees due to the failure of Respondent to
maintain such insurance fund plan in effect by failing to
pay the contractually required amounts with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977), and contin-
ue to make such payments until either a valid impasse or
negotiation of a new agreement in good faith with the
Union. This shall include reimbursing employees for con-
tributions they themselves may have made for the main-
tenance of their coverage for benefits after Respondent
unlawfully coerced contributing, for any premiums they
may have paid to another insurance company for cover-
age previously provided by the insurance fund, and for
medical bills such fund would have covered. Hudson
Chemical Company, supra.
(e) Remit to the Union all dues deductions made from
employees' wages pursuant to the collective-bargaining
agreement.
(f) Furnish to the Union upon request information nec-
essary and relevant to the Union's administration and en-
forcement of the collective-bargaining agreement as de-
scribed hereinabove.
(g) Withdraw the threat to make unilateral contract
changes unless the Union agrees to postpone grievance
arbitration.
(h) Upon request, bargain collectively and in good
faith with the Union as the exclusive representative of
the employees in the above unit concerning rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and embody any understanding reached in a signed
agreement.
(i) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze the payments owed to the
Union, i.e., deducted but unremitted dues; payments
owed the insurance fund, and all records necessary to
analyze the payments owed to employees as set forth in
the terms of this recommended Order.
(j) Post at its offices and places of business in Houtz-
dale, and Madera, Pennsylvania, copies of the attached
notice marked "Appendix." a2 4 Copies of said notice, on
forms provided by the Regional Director for Region 6,
after being duly signed by Respondent's authorized rep-
resentatives, shall be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Re-
spondents shall take reasonable steps to ensure that said
notices are not altered, defaced or covered by any other
material.
(k) Notify the Regional Director for Region 6, in writ-
ing, within 20 days of this Order, what steps Respondent
has taken to comply herewith.
a4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
502