Clarke Mfg., Inc.

National Labor Relations Board - Board Decisions

Feb 20, 2008

352 N.L.R.B. 141 (N.L.R.B. 2008)

CLARKE MFG., INC.
352 NLRB No. 25
141
Clarke Manufacturing, Inc. and United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers Interna-
tional Union, Local 2-200. Case 30–CA–17472
February 20, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On April 10, 2007, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The General
Counsel and the Union each filed exceptions and a sup-
porting brief, and the Respondent filed answering briefs.
Additionally, the Respondent filed cross-exceptions and
a supporting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Clarke Manufacturing, Inc.,
Milwaukee, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Andrew S. Gollin, Esq., for the General Counsel.
Russ R. Mueller, Esq., of Glendale, Wisconsin, for the Respon-
dent.
Ernest L. Dex, Sub-District Director, of West Allis, Wisconsin,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried in Milwaukee, Wisconsin, on October 25, 2006. The
charge was filed April 28, 2006, as amended on June 22, 2006,
and the complaint was issued on July 28, 2006. The complaint

1 We affirm the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by submitting, without a tenable explanation, a regres-
sive proposal to eliminate the collective-bargaining agreement’s long-
standing union-security provision. However, we find it unnecessary to
pass on the judge’s additional finding that the Respondent violated Sec.
8(a)(5) by submitting a regressive proposal to terminate participation in
the Union’s pension fund, as any such finding would be cumulative and
would not materially affect the remedy.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
alleges that the Respondent, Clarke Manufacturing, Inc., vio-
lated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act) by prematurely declaring an impasse in bargain-
ing, by unilaterally replacing the United Healthcare plan for its
employees with a plan referred to as the Federated Plan #5677,
and by presenting a “postfinal offer” proposing the elimination
of the union-security provision and the elimination of the em-
ployees’ pension plan, i.e., submitting regressive bargaining
proposals. The Respondent filed a timely answer admitting the
jurisdictional allegations in the complaint, as well as some of
the factual aspects of the complaint, but denying the commis-
sion of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Clarke Manufacturing, Inc. is a Wisconsin corporation en-
gaged in the operation of a machine shop at its facility in Mil-
waukee, Wisconsin, where it annually sold and shipped goods
and materials valued in excess of $50,000 directly to customers
located outside the State of Wisconsin. The Company admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Un-
ion, United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International
Union, Local 2-200, is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
For more than 20 years, the Union has been the exclusive
bargaining representative of the following unit of the Respon-
dent’s employees:
Production and maintenance employees of the Company, ex-
cluding office clerical, management and professional employ-
ees, and guards and supervisors.
The most recent of a series of collective-bargaining agreements
was effective March 1, 2003, to February 28, 2006 (Jt. Exh. 1).
In a telephone conversation in early January, Ernest Dex, union
staff representative, requested Thomas Nelson, Respondent’s
president, to set dates for negotiations. By letter of December
15, 2005, the union representative demanded certain informa-
tion from the Company and suggested several days in February
for contract negotiation meetings (GC Exh. 2). Thereafter, the
parties held eight negotiation sessions. The substance of the
discussions during these meetings is contained in the notes
taken by Dex, as supported by his testimony (GC Exh. 3). The
testimony of Thomas Nelson about the same negotiations was
brief and differed in only minor respects.
Attending the first meeting on February 21, 2006, as well as
most subsequent meetings, were Thomas Nelson, president, and
Russ R. Mueller, attorney, for the Company, Ernest Dex, union
staff representative, Maria Favell, chief steward, and Ray
Gnadt, an employee, for the Union. The parties discussed vari-
ous issues, including the high cost of health insurance currently
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD142
in force, the Company’s arrears in the employees’ 401(k) plan
and a date for the next meeting (GC Exh. 3). The Respondent
submitted a contract proposal in the form of a 2-page document
which incorporated by reference certain articles of the expired
contract (Jt. Exh. 6). At some point, the Respondent stated that
it was unable to meet for the next scheduled meetings during
that week, because it needed to go over health insurance infor-
mation (Jt. Exh. 6). The Union immediately accused the Re-
spondent of committing an unfair labor practice. The Union
presented a comprehensive contract proposal which dealt with
most terms and conditions of employment. Of importance was
its proposal to eliminate the “right to change” provision in arti-
cle IV, section 6, under the heading “Medical-Hospital-
Physician” of the expired contract (Jt. Exh. 1). Ernest Dex,
staff representative of the Union, testified that the change was
necessary, because the Union believed that all changes needed
to be negotiated. The Union’s position on that issue never
changed during the subsequent negotiations.
The next meeting on February 24, 2006, dealt mainly with
health care issues. The Respondent disclosed to the Union the
costs incurred by the Company for the employee’s benefits,
including health insurance, pensions, 401(k), and wages (Jt.
Exh. 9). The Respondent furnished the Union with the health
care cost chart of the United Healthcare Plan and brought two
representatives from a new insurance carrier, Federated Insur-
ance Company, to present their plans (Jt. Exh. 10; GC Exh. 3).
The Respondent’s position was clear, that current health care
costs were excessive and that the negotiations depended on an
acceptable insurance policy.
The parties met for their third meeting on February 27, 2006,
for an extended session lasting into the afternoon, where the
Respondent presented additional and detailed information on
the Federated Insurance Plan. The Respondent also offered a
contract proposal for the renewal of the current agreement (Jt.
Exh. 12). Attached to the proposal was a comprehensive medi-
cal plan known as Defined Reimbursement Plan #5677 offered
by Federated Insurance. That plan differed from the existing
health insurance plan, the United Healthcare Plan. According to
the Union, the new plan was less advantageous for the employ-
ees and offered fewer benefits than the existing one. “There
were higher deductibles, higher out of pocket expenses,” as
recalled by Union Representative Dex. The meeting ended
with an agreement to extend the current agreement until March
20, 2006 (Jt. Exh. 14).
On March 20, 2006, the parties met for their fourth session.
The parties continued to discuss the alternatives to the employ-
ees’ medical insurance. The Union adhered to its position that
the United Healthcare Plan be retained. The Respondent sub-
mitted more information to the Union about the Federated De-
fined Reimbursement Plan #5677. In the meantime, the Re-
spondent had presented the Union in advance of the session
with detailed information about the two health insurance plans,
sending comparative charts showing monthly costs under the
UHC plan and the proposed Federated plan (Jt. Exhs. 18–24).
Also sent to the Union were detailed charts showing covered
services, including deductible expenses and options, as well as
prescription drugs. The Union indicated that the benefits of-
fered by the Federated Plan #5671 were similar to those under
the existing UHC plan, except that the “deductibles were
somewhat higher than United Health and the out of pocket was
somewhat higher,” but the union representatives informed the
Company that its proposal was not acceptable (Tr. 56). The
Union proposed again that the “right to change” language be
taken out of the contract. The Union requested a further exten-
sion of the existing contract. The Respondent refused to agree
to another extension, and the Union stated that it would seek
authorization to strike.
The parties met again on April 3, 2006, and resumed nego-
tiations, even though the Union informed the Respondent that
the employees had authorized a strike. According to Union
Representative Dex, the Union had hopes to reach an agree-
ment. Again, the main topic was health insurance. The Re-
spondent presented the Union with a second complete proposal
for renewal labor agreement (Jt. Exh. 27). Attached to the pro-
posal was the Federated Insurance Plan #5677. The Respon-
dent agreed not to make substantial changes in the level of
health benefits and to discuss any changes with the Union be-
fore any changes, provided the Company had the right to
change insurance carriers. The Company’s proposal also re-
flected improvements on other terms, such as wages and griev-
ance procedures. The Union responded orally with counterof-
fers on several issues. It insisted again on eliminating the
“right to change” provision in the management-rights clause
contained in article IV, section 6.
The sixth meeting was held on April 6, 2006. Initially, the
parties discussed the grievance procedure. The Respondent
also indicated that it needed a loan to cover the Company’s
obligation under the health insurance plan for the employees’
$2000 deductible amounts. The Union expressed acceptance of
the new insurance plan, provided that the 77- to 23-percent
ratio in premiums in favor of the employees and the current
benefits would be retained. The Union emphasized again the
importance of eliminating the “right to change” language of the
old contract to ensure that the Company would not change any
benefits. The Respondent presented its final offer for renewal
of labor agreement, which contained better and enhanced terms,
especially an increase in wages and an improved split on health
care. The Respondent expressed hope that the Union would
submit the package to its membership for approval (Jt. Exh.
31). Instead the Union requested additional information about
the effects of the overtime proposal on the employees and the
Company’s cost of the final proposal, and promised to examine
the Company’s final offer and submit a counteroffer. The Re-
spondent showed the Union a monthly cost comparison for
each employee under the two health insurance plans (Jt. Exh.
30).
The Union failed to receive the Respondent’s letter of April
11, 2006, containing the cost calculation for the first year of the
Company’s final offer, the information requested by the Union
(Jt. Exh. 33). The Respondent sent the letter again on April 20,
2006. It not only provided the information, but also stated that
any counterproposal by the Union greater than the Respon-
dent’s final offer would underscore the current impasse in the
negotiations. It advised the Union that Federated had offered a
reduction in rates, effective May 1, 2006, which would not be
extended to June 2006 (Jt. Exh. 36).
CLARKE MFG., INC. 143
By letter, dated April 17, 2006, the Respondent explained its
reasons for asking the Union’s acceptance of the offer, stating
as follows (Jt. Exh. 34):
This is to request the Union’s approval of the Implementation
of the Federated Defined Reimbursement Plan #5677, effec-
tive on May 1, 2006, as a substitute for the UHC Plan.
In response, the Union informed the Respondent by letter of
April 21, 2006, that “the Union is not interested in agreeing to
implement the Federated Defined Reimbursement Plan #5677
effective May 1, 2006,” that the Union needed additional in-
formation for further negotiations, including insurance, and that
the Company’s position to retain “the right to change” insur-
ance benefits during the life of the contract amounted to “an
unfair labor practice and a violation of the National Labor Rela-
tions Act” (Jt. Exh. 38).
The Respondent provided the Union with additional informa-
tion and informed the Union by letter of April 21, 2006, that it
would implement the Federated Defined Reimbursement Plan
#5677, effective May 1, 2006, in lieu of the insurance plan by
United Health Care (Jt. Exh. 37). The letter stated:
This implementation is made pursuant to the existing impasse
in the negotiations for terms of a renewal labor Agreement
and as a result of the Union’s refusal to approve the same,
which refusal was communicated in yesterday’s telephone
conversation.
The letter stated five reasons for the “impasse in the negotia-
tions,” among them the Union’s insistence to delete “the right
to change language,” and to condition its acceptance of the
health plan on that proposal, the Union’s position to increase
costs in areas other than wages and the Union’s proposal to
require information to be submitted to the International Union.
A comparison between the two insurance plans shows that
the benefits offered to the employees were substantially similar.
In any case, the Respondent implemented the Federated plan on
May 1, 2006, based on the impasse in the negotiations.
The Company also sent a letter, dated April 24, 2006, to the
Union in response to the Union’s April 21 letter, in which the
Union accused the Respondent of violating the Act. The Re-
spondent stated that its rejection of the Union’s proposal to
eliminate the “right to change “provision in article IV, section 6
of the prior agreement did not amount to an unfair labor prac-
tice, but that the Union’s insistence to reverse its prior waiver
on the subject contributed to the existing impasse in the nego-
tiations (Jt. Exh. 39).
The parties did not meet for several weeks. But in a letter,
dated May 22, 2006, to the Respondent, the Union requested
dates in order to resume contract negotiations, suggesting June
7 or 8, 2006 (GC Exh. 4). The parties met on June 8, 2006.
The Union presented a counterproposal to the Respondent’s
final offer. The Respondent also made a proposal, entitled
statement of position in which the Company explained why the
pension fund was a bad investment which should be terminated
and why the union-security provision, requiring union member-
ship, should be cancelled (Jt. Exh. 40). The Respondent also
presented a “Post-Final Offer Negotiation Proposal,” dealing
with leave of absence, check-off, a 401(k) plan, and a union
pension fund, known as the PIUMPF plan (Jt Exhs. 41–44).
The Union considered the proposal as regressive, accused the
Company of bargaining in bad faith, and asked whether it was
looking for a strike. The Respondent promised that it would
respond to the Union’s counterproposal and agreed to meet
again on June 19, 2006.
The next and final meeting was held on June 19, 2006. The
Respondent provided the Union with a postfinal offer, contain-
ing 14 specific provisions dealing with pay, hours of work,
401(k) plan, vacations, leave of absence, pension fund, and
other terms of employment (Jt. Exh. 45). For example, the
Respondent increased the first year’s wages. Except for the
specific provisions enumerated in the postfinal offer, the pro-
posal stipulated that the terms of the expired contract would
remain the same. The Respondent asked for the Union’s reac-
tion. But the Union again requested more information in order
to make an informed response. The Company indicated that it
was not interested in a counterproposal, because it needed to
get on with its other business, including getting sales and pro-
duction.
In sum, the parties held eight meetings from February 21, to
June 19, 2006, in order to negotiate a contract. Each side made
concessions on terms and conditions of employment. From the
outset, the Respondent provided extensive and exhaustive in-
formation to the Union on what the Company considered the
most important issue, namely medical insurance for the em-
ployees. Only after the Union had repeatedly rejected the
Company’s proposal to change insurance plans from United
Health Care to the Federated Plan #5677, did the Company
implement the plan based on the assumption that the negotia-
tions had reached an impasse. Another point of contention
beginning with the first meeting on February 21, 2006, was the
Union’s insistence that the “right to change” language which
had been in all prior contracts between the parties be deleted.
This proviso had been part of article IV, section 6, entitled
“Medical-Hospital-Physician,” and provided in substance that
the Company had the right to change insurance carriers and the
means of providing benefits, including the level of benefits,
without causing a substantial lowering of benefits and without
prior notice to the Union (Jt. Exh. 48).
Analysis
The complaint alleges that the Respondent failed and refused
to bargain in good faith in violation of Section 8(a)(1) and (5)
of the Act by proposing to replace the United Healthcare Plan
with the Federated Plan #5677, declaring an impasse in bar-
gaining for a successor agreement, by implementing the Feder-
ated Plan, and by proposing in its “postfinal offer” the elimina-
tion of the union security provision and the employees’ pension
benefit plan. The General Counsel argues that the Respondent
failed and refused to bargain in good faith by (1) prematurely
declaring an impasse in the negotiations, (2) unilaterally chang-
ing health insurance plans and implementing its Federated Plan
#5677, and (3) by submitting regressive proposals. The Re-
spondent counters and refers to a deadlock generated by the
Union’s inflexible and uncompromising positions, especially
the demand to eliminate the “right to change” language, and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD144
refusals to approve the change in insurance plans, all of which
made a continuation of any further discussions hopeless.
The record, as summarized above, is not in dispute. Two
factors changed the dynamics of the parties’ longstanding bar-
gaining relationship, first, the health insurance issue, and sec-
ond, the change in management involving Tom Nelson as the
new president. As to the former, the record shows that the
Company struggled with the health insurance plans, and made
it clear from the inception of the negotiations that medical in-
surance would be a deciding factor. It invited the Union at the
outset to participate and to get involved, providing the Union
with all relevant information, such as cost comparisons and
charts showing the insurance coverage for each employee and
more. The Company invited representatives from a new insur-
ance carrier under consideration to explain the benefits. In-
deed, the Respondent had included the Union from the outset in
its selection process of other insurance companies to provide
the employees with adequate, but lower cost health benefits.
The Union was not impressed, although receptive at one point
during the fifth meeting, it subsequently rejected the Com-
pany’s offer to accept the new plan, even though the benefits
were substantially the same under either plan.
The other concern which affected the negotiations was the
Union’s distrust of Tom Nelson, the new president. In his
brief, the General Counsel frankly stated that the Union was so
concerned about the new president that it decided “to propose
more explicit, limiting language for the new contract” by insist-
ing to eliminate the “right to change” language from the agree-
ment which would have authorized the Respondent to change
insurance carriers so long as the benefits remained substantially
the same. The General Counsel conceded that the Union
wanted that proposal, and that it was important to the Union.
Clearly, the Union never conceded its position on that issue.
In all other respects, the Respondent did not appear to be
evasive, dishonest, or uncooperative. It gave no indication to
the Union that it was not interested in reaching an agreement.
To the contrary, the Union unjustly accused the Company re-
peatedly with engaging in unfair labor practices, and threatened
to strike at a time when such a threat was unjustified. In spite
of a confrontational demeanor by the Union, the Respondent
agreed to meet at reasonable times and for reasonable durations
to negotiate. It made significant concessions in its proposals on
economic issues to meet the Union’s demands. I cannot find
fault with the Respondent’s manner of bargaining, with one
important caveat, the regressive proposals at the June 8, 2006
meeting.
It is well settled that an employer’s unilateral changes during
the course of a collective-bargaining relationship concerning
mandatory subjects of bargaining is unlawful. Health insurance
is a recognized subject of bargaining. Recognized exceptions
to an employer’s unilateral action are those instances where an
impasse is reached or where a waiver can be established. Here,
under the terms of the expired contract, namely the “right to
change” language, the Union had waived its right to bargain
over the employer’s right to change insurance plans. However,
the Board has held that such a waiver does not survive the ex-
pired contract. And the record does not show whether the Re-
spondent relied on that waiver of the expired contract. The
issue is whether the parties have reached a lawful impasse.
Paperworkers v. NLRB, 981 F.2d 861 (6th Cir. 1992). In other
words, a party which prematurely declares an impasse and
makes unilateral changes in health care coverage violates the
Act. Torrington Extend-A-Care Employee Assn. v. NLRB, 17
F.3d 580 (2d Cir. 1994); CBC Industries, 311 NLRB 123
(1993). Whether or not an impasse is reached is a question of
various factors. Taft Broadcasting Co., 163 NLRB 475 (1967).
In NLRB v. Triple A Fire Protection, Inc., 136 F.3d 727, 738
(11th Cir. 1998), the court stated as follows:
The determination of impasse involves an inquiry into “a
myriad of circumstances,” including (1) the background and
relationship of the parties, (2) their willingness to negotiate,
(3) the extent and frequency of bargaining, (4) the integrity of
the bargaining, and (5) the good or bad faith of the parties.
Applying that test to the instant situation, I find that the decla-
ration of the impasse was not unlawful. Here, the parties had a
well established and successful bargaining relationship, as ex-
emplified by a series of collective-bargaining agreements. Dex
testified that Robert Nelson, the Company’s past president, was
tough but fair, and that he had a cordial relationship with him.
As already observed, the Union was not convinced that his son,
Thomas, was of equal caliber. Nevertheless, the course of the
negotiations do not justify the Union’s changed attitude vis-à-
vis this Employer.
The second element, the parties’ willingness to negotiate, is
shown by the Respondent’s cooperation in agreeing to set dates
and in attending meetings. Both parties presented proposals
based on the expired contract and made concessions. The Re-
spondent furnished detailed information, especially on the
health insurance plan, and gave serious consideration to the
Union’s proposals.
Unlike the circumstances in Triple A Fire Protection, Inc.,
supra, where the respondent attended only one negotiation ses-
sion, here the Company attended a total of eight meetings, and
declared the impasse after the sixth meeting. The record does
not show that the Respondent rejected the Union’s invitation to
meet even after May 1, 2006, when the Respondent had imple-
mented the new insurance plan.
The fourth criterion, the integrity of the bargaining, was
shown by the sincerity of the parties in attempting to arrive at
an agreeable solution to the problems. There is no dispute that
the Respondent was faced with increasing cost of the existing
health plan, and tried to involve the Union from the outset in
the negotiations, by supplying financial information, by pre-
senting insurance representatives, and by making significant
concessions. Significantly, the Respondent acted honestly and
kept the Union informed at all stages, even though the Union
accused the Company of bad faith and threatened a strike.
Finally, as to the good faith of the parties, the General Coun-
sel faults the Company for overemphasizing the insurance issue
at the expense of other outstanding issues. To be sure, the par-
ties could have come to an agreement on a few other out-
standing issues, such as life and sickness insurance, the pension
plan, the elimination of the management-right clause, and other,
more minor matters. But it is also clear that the parties were
deadlocked on two issues and unable to overcome their differ-
CLARKE MFG., INC. 145
ences. At one point the Union had indicated its acceptance of
the new Federated Health Plan after the Company had agreed to
substantially identical benefits of the existing UHC plan. But
the Union changed its position and rejected the Company’s
request to accept the proposal. The record suggests that the
Union conditioned its acceptance on the elimination of “the
right to change” language. That issue was never resolved, al-
though the parties had come close to an agreement at one point
on the health plan. The parties resumed negotiations with re-
vised proposals on two occasions, but were unable to overcome
their fundamental differences and remained deadlocked. Bot-
tom Line Enterprises, 302 NLRB 373 (1991), enfd. 15 F.3d
1087 (9th Cir. 1994).
Mindful that parties deadlocked on certain issues are not free
to implement, unless an overall impasse is reached, I am con-
vinced that further meetings would not have been productive.
Here, any further negotiations were futile, because the parties
were simply unable to resolve the fundamental issues and any
agreements on other issues would not, in my opinion, have
resolved the impasse.
I accordingly find that the evidence does not indicate that the
Respondent declared the impasse prematurely and I find that
the unilateral implementation of the Federated Plan did not
violate the Act. I would therefore dismiss those allegations in
the complaint.
However, I agree with the General Counsel that the Respon-
dent violated the Act after the parties had resumed negotiations
at the behest of the Union. By submitting regressive proposals,
the Respondent did not bargain in good faith. The Respondent
admits that it presented four proposals at the last negotiation
session on June 8, 2006, among them the proposal to terminate
the pension plan, and the union security provision. In its post-
final offer, dated June 8, 2006, the Respondent proposed that
upon ratification by the employees of the renewal labor agree-
ment, “the Company’s participation in Pension Fund will be
terminated” (Jt. Exh. 42). And the other proposal states that
employees do not have to be a member of the Union. Clearly,
those provisions would have changed two important and long-
standing terms of employment.
The Company’s explanation that it considered to make the
pension fund issue as an initial proposal, because it is in finan-
cial trouble seems like an afterthought and clearly designed to
undermine the bargaining relationship. The Respondent’s de-
meanor was also inconsistent with its earlier dealings involving
the health plan, where the Company gave advanced notice and
kept the Union fully informed. With regard to the union-
security issue, the Company referred to certain antiunion senti-
ment expressed by employees earlier in the year to a supervisor.
Again, the Respondent’s explanation seems contrived and far-
fetched. Even if true, it was out of place at that juncture to
present an issue designed to undermine the Union’s position.
The Respondent offered no evidence to support its explana-
tions. The law is clear: “Where the proponent of a regressive
proposal fails to provide an explanation for it, or the reasons
appears dubious, the Board may weigh that factor in determin-
ing whether there has been bad-faith bargaining.” Mid-
Continent Concrete, 336 NLRB 258, 260 (2001). On that basis
I find that the Respondent failed to bargain in good faith.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees of the Respondent constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
Production and maintenance employees of the Company, ex-
cluding office clerical, management, and professional em-
ployees, and guards and supervisors.
4. By submitting regressive proposals during the negotia-
tions without sufficient explanations, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) of the Act.
5. The unfair labor practices found above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that the Respondent
failed to bargain in good faith with the Union by making re-
gressive proposals during the negotiations, the Respondent
must be ordered to cease and desist and be ordered to bargain in
good faith with the Union as the collective-bargaining represen-
tative of the unit employees. On these findings of fact and
conclusions of law and on the entire record, I issue the follow-
ing recommended1
ORDER
The Respondent, Clarke Manufacturing, Inc., Milwaukee,
Wisconsin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making regressive proposals in terms and conditions of
employment during the negotiations without sufficient explana-
tions.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
Production and maintenance employees of the Company, ex-
cluding office clerical, management and professional employ-
ees, and guards and supervisors.

1 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD146
(b) Within 14 days after service by the Region, post at its fa-
cility in Milwaukee, Wisconsin, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 30, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 8,
2006.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment 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
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT make regressive proposals in terms and condi-
tions of employment during the negotiations without sufficient
explanations.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL on request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement:
Production and maintenance employees of the Company, ex-
cluding office clerical, management and professional employ-
ees, and guards and supervisors.
CLARKE MANUFACTURING, INC.