Colfor, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1987

282 N.L.R.B. 1173 (N.L.R.B. 1987)

COLFOR, INC. 1173
Colfor, Inc., and International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), Local Union No.
2148 . Cases 8-CA-16779 and 8-CA-17416
10 February 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 September 1985 Administrative Law
Judge Walter H. Maloney issued the attached deci-
sion . The Respondent filed exceptions , a Motion in
the Alternative for a New Trial, and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this ' proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order , ' and to adopt the recom-
mended Order as modified.
We agree with the judge that the Respondent
violated Section 8(a)(5) and ( 1) by refusing to bar-
gain with the Union on 25 May 1983 and for a
period thereafter of approximately 64 days and by
refusing to bargain with the Union on 4 November,
1983 and at all times thereafter . We find , however,
contrary to the judge, that extending the bargain-
ing order for 1 year is an inappropriate remedy.
In an earlier unfair labor practice case, the Board
ordered the Respondent to bargain with the Union
for a 1-year period, commencing on the date that
the Respondent began good -faith bargaining.2
Good -faith bargaining commenced on 1 November
1982 , when Jeffrey M. Embleton , the Respondent's
former counsel, provided David Roloff, the
Union's former counsel , with previously requested
information and informed Roloff that the Respond-
ent was ready to begin bargaining discussions. In
December , Embleton again provided information
to Roloff and again indicated a willingness to meet
with Roloff to commence bargaining.
On 9 February 19833 Ronald Horn , the new
business representative for the Union , contacted
Robert Nappi, the Respondent's personnel manag-
er, to inform him that the Union had recently se-
lected its bargaining committee and was interested
in meeting with the Respondent. The parties even-
tually met on 18 March 1983 and thereafter met It
more times, the final session occurring on 25 Octo-
ber 1983.
On 25 May 1983 negotiations came to a tempo-
rary halt when the Respondent refused to negotiate
in the presence of Clifford Logan, an employee
member of the union negotiating committee who
had recently been discharged.4 The Respondent
continued to refuse to meet in the presence of
Logan until 28 July 1983.5 At that time negotia-
tions resumed and the Respondent did not again
object to Logan's presence at the bargaining table.
On 25 October 1983 the parties met for the last
time. Although agreement had been reached on
several issues, the parties remained at odds as to
the - length of the collective-bargaining agreement
and the employment status of Clifford Logan.
After considering counterproposals upon which the
parties could not agree, Horn suggested that the
parties were "at impasse" but requested another
meeting soon,,. Embleton agreed to contact Horn in
order to_ schedule another meeting.
The parties agreed to meet on 4 November;
however, approximately 2 hours before the meeting
was to start Embleton called off the meeting pursu-
ant to the Respondent's instructions. Embleton in-
formed Horn that , there was no reason to meet
again as the Respondent agreed with Horn's assess-
ment that the parties were at impasse. Embleton
further informed Horn that the Respondent was
implementing the 55-cent-an-hour wage' increase,
which the Respondent had proposed duriing negoti-
ations and that if the, Union had any, objections it
should register a formal objection. Horn, expressed
disappointment that the Respondent considered the
parties to be at impasse and again requested an-
other negotiating session. Embleton told Horn he
would contact Horn about setting up another meet-
ing, but he never did. The parties exchanged corre-
spondence memorializing their respective positions,
but no further bargaining sessions were scheduled.
Based on the foregoing, we agree with the judge
that the Respondent violated ' Section 8(a)(5) and
(1) by refusing to bargain with the Union on 25
May and for a period thereafter of approximately
' The Respondent has filed a Motion in the Alternative fora New
Trial asserting that the decision of the judge evidences bias and preju-
dice We reject the Respondent's contention of bias and prejudice Upon
our full consideration of the entire record in these proceedings we find
no evidence that the judge prejudged the case, made prejudicial rulings,
or demonstrated bias against the Respondent in his analysis and discus-
sion of the evidence
2 254 NLRB 873 (1981), enfd 678 F.2d 655 (6th Cir 1982)
2 All dates refer to 1983 unless noted otherwise
4 The Respondent asserts that the judge mischaractenzed Logan's sep-
aration from employment as a discharge. We find it unnecessary to re-
solve this issue since there is no dispute that Logan was a former employ-
ee. Consequently, who severed the employment relationship is immaten-
al.
5 The Respondent contends that Logan's presence at the bargaining
table was inappropriate because he was a former, allegedly disgruntled,
employee
282 NLRB No. 160
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
64 days and by refusing to bargain with the Union
on 4 November and all times thereafter.
The Respondent asserts that Logan's presence at
the bargaining table on 25 May constituted unusual
circumstances justifying the Respondent's refusal to
bargain. The 'Respondent relies on Standard Oil
Co., 137 NLRB 690 (1962), enfd. 322 F.2d 40 (6th
Cir. 1963), for its proposition that while a party
enjoys unrestricted selection of its bargaining
agents under usual circumstances, the presence of
"an unusual factor" may justify a valid objection to
a party's selection of a bargaining agent. The Re-
spondent asserts that the presence at the bargaining
table of Logan, a former and allegedly disgruntled
employee, constitutes such "an unusual factor" be-
cause his presence could destroy the "ongoing,
productive, good-faith bargaining relationship" es-
tablished between the parties. We are not persuad-
ed by the Respondent's argument. We find no evi-
dence indicating that Logan's presence at the bar-
gaining table would have impaired the bargaining
relationship nor do we find the presence of a
former employee at the bargaining table to be the
type of "unusual factor" covered by Standard Oil.
See Racine Die Casting Co., 192 NLRB 529 (1971).
The Respondent 'further' contends that its refusal
to bargain on 4 November, and at all times thereaf-
ter, was based on a legitimate impasse between the
two parties.6 We disagree. A review of the record
indicates that at the conclusion of the 25 October
meeting both parties, while believing 'that they
were at an impasse for that day, were willing to
meet again forthe purpose of further negotiations.
Consequently, there was never a contemporaneous
understanding of the parties that they were at a
permanent impasse. It is well settled that for an im-
passe to be found, the parties must have reached
"that point of time in negotiations when the parties
are warranted in assuming that further bargaining
would be futile." Patrick & Co., 248 NLRB 390,
393 (1980), enfd. mem. 644 F.2d 889 (9th Cir.
1981). Absent such a circumstance, a bargaining
impasse cannot exist. See Taft Broadcasting Co., 163
NLRB 475 (1967), affd. 395 F.2d 622 (D.C. Cir.
1968); Patrick & Co., supra.
Having thus found that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union on 25 May and for a period
thereafter of approximately 64 days and by refusing
6 The judge concluded that if the parties were truly at impasse, then
the Respondent would be guilty of an unfair labor practice by bargaining
to impasse' over a nonmandatory subject of bargaining , namely, the Re-
spondent's demand that the Union withdraw its unfair labor practice
charges as a condition of obtaining an agreement We do not agree with
this conclusion The record shows that while this subject was included in
bargaining negotiations it was not the basis of the alleged impasse be-
tween the two parties
to bargain with the Union on 4 November and at
all times thereafter, we must now devise an appro-
priate remedy. The judge concluded that the Re-
spondent never commenced good-faith bargaining.
Therefore, he ordered a 1-year extension of the
certification year. We disagree with the judge's
analysis. A lack of good-faith bargaining was nei-
ther alleged in the complaint nor litigated at the
hearing. Consequently, to conclude that the Re-
spondent did not commence good-faith bargaining
goes beyond the scope of the proceedings before
us.
The Board, in its early years, adopted an admin-
istrative rule providing that a certification, based
on a Board-conducted election, must be honored
for a reasonable period, ordinarily 1 year, in the
absence of unusual circumstances.? The rule, which
was upheld by the Supreme Court in Brooks v.
NLRB, 348 U.S. 96 (1954), was developed in an at-
tempt to provide a reasonable period for collective
bargaining to function and thus stabilize industrial
relations.
The rule, however, presupposes that both parties
will bargain in an attempt to reach an agreement.
Consequently, when a party refuses to bargain
during the certification year the Board will extend
the certification year to prevent that party from
gaining an advantage from its failure to carry out
its bargaining obligation.8 The extension normally
will be for a period, that provides the aggrieved
party with a full year of actual bargaining. The ex-
tension need not, however, be the product of a
simple arithmetic calculation. As the Board stated
in Glomac Plastics, 234 NLRB 1309 at fn. 4 (1978):
Although the so-called Mar-Jac remedy (136
NLRB 785, 787 (1962)) is typically designed to
provide an aggrieved labor organization with 1
year's time in which to negotiate a collective-
bargaining agreement, we do not believe the
Board is powerless to order, under proper cir-
cumstances, a complete renewal of a certifica-
tion year, even in cases where there has been
good-faith bargaining in the prior certification
year. Such a position takes cognizance not
only of the realities of collective-bargaining
negotiations as well as the realities of the
effect of any bad-faith bargaining in the prior
year, but also, more importantly, of that policy
embedded in the Act which seeks to have the
relationship between covered employees and
their employers determined by the bargaining
7 Kimberly-Clark Corp , 61 NLRB 90 (1945)
8 Mar-Jac Poultry Co, 136 NLRB 785 (1962), Lamar Hotel, 140 NLRB
226, 229 ( 1962), enfd 328 F 2d 600 (5th Cir 1964), cert. denied 379 U S
817 (1964), Burnett Construction Co, 149 NLRB 1419, 1421 (1964), enfd
350 F.2d 57 ( 10th Cir 1965)
COLFOR, INC. 1175
process and then reduced to written contract
form. 9
If a simple arithmetic calculation were made in
the instant case , a 2-month extension of the certifi-
cation year would be in order; however, in apply-
ing the considerations set forth in Glomac Plastics,
we conclude that a 6-month extension of the bar-
gaining year is appropriate in the circumstances
here presented . A 6-month extension properly takes
into account the realities of collective-bargaining
negotiations by providing a reasonable period of
time in which the Union and the Respondent can
resume negotiations and bargain for a contract
without unduly saddling the employees with a bar-
gaining representative that they may ^ no longer
wish to have represent them.
Furthermore , a 6-month extension takes into ac-
count the effect of the Respondent 's disruption of
negotiations that took place during the certification
year. It is important to note that the Respondent,
on two separate occasions , refused to bargain with
the employees' representative. The first instance
caused a 2-month cessation in bargaining. The
second instance , which allegedly took place after
the expiration of the certification year, resulted in a
complete breakdown in negotiations . These two re-
fusals to bargain had a greater impact on the bar=
gaining relationship than merely denying the Union
2 months of bargaining . Consequently, if we cred-
ited the Respondent for the 10 months of bargain-
ing that took place during the certification year,
we would be rewarding it for its disruptions of
good-faith bargaining . It is unreasonable to con-
clude that these parties could resume negotiations
at the point where they left off over 2 years ago,
or that fruitful negotiations could take - place during
a mere 2 months of bargaining after such a hiatus.
Thus, we find that a 6-month extension of the certi-
9 In Glomac Plastics, supra, remanded 592 F 2d 94 (2d Cir . 1979), enfd.
per curiam 600 F 2d 3 (2d Cir 1979), the Board extended the certification
year for an additional 12 months , even though the parties had bargained
for 9-1/2 months, because the evidence indicated that the Respondent
had been bargaining in bad faith in hope that a successful decertification
petition would be filed at the end of the certification year In Haymarket
Bookbinders, 183 NLRB 121 (1970), the Board extended the certification
year for 6 months, even though the parties bargained throughout the
course of the entire certification year, because the employer committed
various unfair labor practices that deprived the union of its full represent-
ative status In General Electric Ca v. NLRB, 400 F 2d 713 (5th Cir.
1968), the Fifth Circuit armed 'the Board 's authority to extend the certi
fication year for 9 months, the period during the certification year in
which the Respondent was under a duty to bargain but refused to do so.
In Briarcliff Pavillion , 260 NLRB 1374 (1982), enfd mem . 725 F 2d 669
(3d Cir 1983), the Board took into account the conduct of both parties in
extending a certification year for a period of 4 months Although the em-
ployer in that case had refused to bargain during the course of the certifi-
cation year, the certification year there was not extended for an addition-
al year because the Board did not want to credit the union for the time
that it did not produce a representative at the bargaining table nor for the
time that the union 's representatives were not bargaining in good faith
fit tibn year is necessary to remedy the effect of
the Respondent 's disruptions of negotiations:
A 6-month extension of the certification year ad-
ditionally accommodates the policy embedded in
the Act that seeks to have the relationship between
covered employees and their employer determined
by the bargaining process and then - reduced to
written contract form . The evidence shows these
parties made substantial progress in resolving their
differences during their bargaining sessions . In fact,
when the negotiations ceased, the parties remained
at odds on only two issues the duration of the con-
tract and the employment status of Clifford Logan.
Consequently , our remedy should be one that fos-
ters their continued resolution of differences
through the collective-bargaining relationship. We
find that a 6-month extension of the certification
year advances this policy.10
While the certification period will be extended 6
months , the Respondent 's duty to bargain will not
stop when the certification year expires . It is well
settled that on the expiration of the certification
year a certified union enjoys a rebuttable presump-
tion that its majority representative status contin-
ues. Celanese Corp. of America, 95 NLRB 664
(1951). Consequently , an employer is required to
continue bargaining after the expiration of the cer-
tification year unless an employer can establish (1)
that at the time of the refusal to bargain the union
in fact no longer enjoys a majority representative
status; or (2) the employer 's refusal to bargain was
predicated on a good-faith and reasonably ground-
ed doubt of the union 's continued majority status.
Terrell Machine Co., 173 NLRB 1480 (1969), enfd.
427 F.2d 1088 (4th Cir. 1970), Until the Respond-
ent can establish either of these circumstances, its
duty to bargain will continue to run and failure to
bargain may be grounds for another unfair labor
practice, charge brought against it.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Colfor, Inc., Malvern, Ohio , its officers,
agents, successors , and assigns, shall take the action,
set forth in the Order as modified.
1. Insert the following as paragraph 2(a) and re-
letter the subsequent paragraphs.
"(a) Recognize the Union upon resumption of
bargaining in good faith and for 6 months thereaf-
ter as if the initial year of certification had not ex-
pired."
3O Member Johansen concurs.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached notice 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Internation-
al Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW),
Local Union No. 2148, because of the presence at
the bargaining table of Clifford Logan, or because
of the presence at the bargaining table of any other
member, of the union bargaining committee who is
not an employee of the Company.
WE WILL NOT refuse to bargain collectively in
good faith with the Union as the exclusive collec-
tive-bargaining representative of our production
and maintenance employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize the Union upon resumption
of bargaining in good faith and for 6 months there-
after as if the initial year of certification had not
expired.
WE WILL bargain collectively in good faith with
the Union as the exclusive collective-bargaining
representative of our production and maintenance
employees and, if an understanding is reached, we
will embody that understanding in a signed, written
agreement.,
issued by the Regional Director for Region 8, which al-
leges that the Respondent Colfor, Inc.,2 violated Section
8(a)(1) and (5) of the Act. More particularly, the com-
plaint alleges that the Respondent refused to bargain
with the certified Union unless the Union removed a
former employee from its negotiating committee. The
consolidated complaint further alleges that the Respond-
ent failed and refused to bargain at all after November 4,
1983, when it ceased to recognize the Union as the bar-
gaining representative of its employees. The Respondent
admits that it refused to negotiate for a period of time
with the Union because of the presence at the negotiat-
ing table of Clifford Logan, a former employee, but
avers that it resumed bargaining, notwithstanding the
fact that Logan continued to attend bargaining sessions
and to serve on the Union's committee. It also alleges
that the certification year expired on November 1, 1983,
and that it was privileged to cease recognizing the Union
after that date because it entertained a good-faith doubt
concerning the Union's continued majority status. On
these contentions, the issues were joined.3
FINDINGS OF FACT
I. BACKGROUND
The Respondent operates a small factory at Malvern,
Ohio, near Canton. Its relationship with the Union in this
case has been a long and litigious one, dating back to the
spring of 1979. At that time, following an organizing
drive among the Respondent's approximately 125 pro-
duction and maintenance employees, the Union filed a
representation petition and went to an election, which
was conducted by the Board on March 22, 1979. The
Union won this election by a vote of 66 to 52. Objec-
tions were then filed by the Respondent. On July 13,
1979, the Board directed that a hearing be held on two
of the objections. Colfor, Inc., 243 NLRB 465 (1979).
The hearing officer, in his report on objections, recom-
mended that those objections be overruled and that the
Union be certified. In its decision, issued April 8, 1980,
the Board agreed and certified the Union. 248 NLRB
1057.
COLFOR, INC.
Richard F. Mack, Esq., for the General Counnsel.
J. Howard Daniel, Esq., of Greenville, South Carolina,
for the Respondent.
William Bobulsky, Esq., of Ashtabula, Ohio, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Canton,
Ohio, on a consolidated unfair labor practice complaint,'
i The principal docket entries in this case are as follows
A charge filed by International Union, United Automobile, Aerospace,
and Agricultural Implement Workers of America (UAW), Local Union
No. 2148 (Union or UAW) against the Respondent on May 31, 1983, in
A. The Alleged Unfair Labor Practices
Not long after the certification , the Union made a
demand to bargain . By letters dated April 21 and June 9,
Case 8-CA-16779, complaint issued by the Regional Director for Region
8 on July 12, 1983, in Case 8-CA-16779, the Respondent's answer was
filed on July 22, 1983, a charge was filed by the Union against the Re-
spondent in Case 8-CA-17416, on March 12, 1984; consolidated com-
plaint issued by the Regional Director for Region 8 on May 31, 1984; the
Respondent's answer was filed on June 8, 1984; hearing was held in
Canton, Ohio, on July 16, 1985, briefs were filed by the General Counsel
and the Respondent with me about before September 12, 1985.
2 I find that the Respondent is an Ohio corporation, which maintains a
place of business in Malvern, Ohio, where it manufactures trailer hitches
and other forged steel items. In the course and conduct of this business,
the Respondent annually ships goods and materials valued in excess of
$50,000 directly to points and places located outside the State of Ohio
Accordingly, it is an employer engaged in commerce within the meaning
of Sec 2(2), (6), and (7) of the Act. The Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
8 All dates refer to 1983 unless noted otherwise.
COLFOR, INC
1980, the Union requested information from the k6-'
spondent preliminary to bargaining and also requested a
meeting for the purpose of beginning negotiations. The
Respondent refused, stating that it was going to chal-
lenge the certification, so the Union filed an unfair labor
practice charge in Case 8-CA-13967, claiming that the
Respondent violated Section 8(a)(1) and (5) of the Act.
After issuance of a complaint, the Board granted the
General Counsel's Motion for Summary Judgment and,
in so doing, backed up its certification with a bargaining
order, dated February 2, 1981. 254 NLRB 873. The Re-
spondent refused to comply with this Order so the Board
sought enforcement in the United States Court of Ap-
peals for the Sixth Circuit. In a short per curiam deci-
sion, dated May 20, 1982, the court enforced the Board's
Order and directed the Respondent to bargain collective-
ly in good faith with the Respondent. Colfor, Inc. v.
NLRB, 678 F.2d 655 (6th Cir. 1982).
While this litigation was in progress, other collateral
but relevant litigation was taking place. A Colfor em-
ployee, Ed Ondusko, filed the first of five decertification
petitions in Region 8, seeking to have the Union ousted
as the bargaining representative of the Respondent's em-
ployees.4
After the Regional Office dismissed this petition on
February 13, 1981, Ondusko filed a civil action against
the Respondent and the Regional Director in the United
States district court, seeking to compel the holding of a
decertification election. His, action was dismissed by the
district court and was also dismissed on appeal by the
Court of Appeals for the Sixth Circuit in an unpublished
opinion, dated April 11, 1984. In that opinion, the court
of appeals noted that the Board's bargaining order in
Case 8-CA-13967 had previously been enforced and that
the enforcement of this order rendered the issues raised
in the civil action moot, inasmuch as the certification
year had been extended by the enforced Board order for
1 year from the date that bargaining in good faith com-
menced. (Ondusko Y. Colfor, Inc., No. 82-3804.) In the
pleadings in that case, Plaintiff Ondusko had alleged that
77 of Colfor's 139 employees supported the decertifica-
tion effort and attached copy of a petition assertedly
signed by those employees. As a party- to that proceed-
ing, the Respondent in this case was served with those
pleadings together' with a copy of the employee petition
supporting the original decertification petition.
4 Ondusko filed a total of five decertification petitions, all of which are
in evidence to this case . None of them were acted on by the Board. They
are
a Petition in Case 8-RD-1007, filed February 13, 1981, and dis-
missed on March 15, 1983
b Petition in Case 8-RD-1176, filed August 12, 1983, and dis-
missed on August 31, 1983
c. Petition in Case 8-RD-1183, filed October 14, 1983, and dis-
missed on October 26, 1983.
d Petition in Case 8-RD-1189, filed November 23, 1983, and dis-
missed on December 21, 1983
e Petition in Case 8-RD-1204, filed March 5, 1984.
The first three petitions were dismissed because they had been filed
within the certification year The fourth petition was dismissed because
of the pendency of a blocking charge in this case The fifth petition has
been held in abeyance pending the outcome of this proceeding
1177
B. The Events in this Proceeding
About 2 months after the Sixth Circuit enforced the
Board's bargaining order in Case 8-CA-13967, David
Roloff, the Union's former counsel, wrote a letter to Jef-
frey M. Embleton, the Respondent's former counsel. In
that letter, Roloff noted the enforcement of the Board's
order, as well as the fact that the Sixth Circuit had also
rejected Colfor's petition to the court for a rehearing en
banc. He again requested that Colfor bargain with the
Union for the purpose of entering into a collective-bar-
gaining agreement . Roloff also made an extensive
demand for information, including a list of unit employ-
ees, classifications, hourly rates, dates of hire, and 'dates
of birth; a copy of present sick and accident insurance
benefits that are currently being paid to employees and
the amount of the Company's insurance premium; a copy
of the present hospital and medical plan; the amount of
life insurance coverage given to each employee and the
premium paid for such coverage; the'number of days of
vacation each employee receives; a copy of the Respond-
ent's pension plan, together with information concerning
present retirees who are drawing benefits under that
plan. The Union received no immediate response from
this letter.
The Board's official file in Case 8-CA--13967, of
which I take official notice, contains a letter, dated Octo-
ber 4, 1982, directed to the Respondent by the Board's
Assistant General Counsel in charge of contempt pro-
ceedings. In that letter, the Respondent was informed
that the Regional Office had recommended the institu-
tion of contempt proceedings against the Respondent for
failing to comply with the decree of the Sixth Circuit.
The Respondent was further informed that the Office of
the General Counsel would recommend to the Board the
institution of contempt proceedings unless the Respond-
ent informed the Board, about October 15, that it intend-
ed to comply with the court's decree. On November 1,
1982, Embleton replied to Roloff's letter of July 29, en-
closing a list of employees together with rates of pay,
dates of hire, job, classifications, and other information.
He sent a photocopy of the Colfor profit-sharing plan,
noting the names of two individuals„ who had retired
under the plan. He also forwarded a copy of the Colfor
medical benefit plan, which he said was self-funded. The
letter contained other information requested and con-
cluded with the statement that "you, are invited to con-
tact either myself or Mr. Ernest Mansour [Embleton's
law partner] to begin discussion after you have had the
opportunity,to review the enclosed material."
On November 22, Roloff 'again wrote to Embleton, ac-
knowledging receipt of Embleton's November 1 letter,
but complaining that the information furnished was in-
complete. Roloff went on to itemize eight categories of
information that the Union still desired and made a fur-
ther request that the Union's International representative,
Ronald Horn, be permitted to view the plant in oper-
ation. He asked Etribleton to contact Horn for this pur-
pose.
In a December 2 letter, Embleton replied to Roloff
that he felt that the Company had adequately responded
to the Union's original request for information and con-
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sidered that certain items mentioned in Roloff's Novem-
ber 22 letter constituted a new or supplementary
demand . Embleton also said that certain items not fur-
nished were either inappropriate or could be obtained by
the Union from other sources. He denied the Union's re-
quest to permit Horn to tour the plant . He also told
Roloff that he would have additional information for him
in about 2 weeks and would be looking forward to hear-
ing from him at that time . On December 15, Embleton
again wrote to Roloff, enclosing a copy of the names and
home addresses of bargaining unit employees , a list of
holidays observed by the Company , and some job de-
scriptions (as distinguished from merely a listing of job
classifications), The letter concluded with the following
statement:
We continue to make ourselves available to you
and the union for beginning of discussions. It has
now been over six (6) weeks since we sent to you
the information that you originally requested. We
have not heard from you regarding the beginning of
discussions . We believe that your delay in setting up
the discussions is not in the interests of either party
and will look forward to your early response.
On February 6, the Union held a meeting of its mem-
bers and elected a bargaining committee consisting of
Charles Ecrement, Perry Pyles, Clifford Logan, and
Ronald Earley . By letter of February 9, 1983 , Horn ad-
vised Robert Nappi , the Respondent 's personnel manag-
er, of this event and requested from Nappi a list of dates
and times he would be available for a meeting and the
location he would find acceptable. Horn concluded by
saying that , once this information was forthcoming, they'
could set a date . He also requested the Respondent tobbe
prepared to exchange contract proposals on the opening
day of negotiations .5 Embleton replied to Horn , offering
to meet on February 28 and suggesting a meeting place
equidistant from the plant in Malvern, Ohio, and the
union office in Cleveland . Horn could not attend on the
date first suggested by Embleton , but the parties eventu-
ally met for their first bargaining session on March 18 at
the Holiday Inn at North Canton . This was to be the
first of 12 meetings that took place throughout the
summer and early fall of 1983 . The final session occurred
on October 25:
Throughout the bargaining sessions , Horn was the
chief negotiator for the Union and was assisted by one or
more of the above-mentioned company employees who
had been elected to the bargaining committee . Embleton
was the lead negotiator for the Respondent and was as-
sisted at each session by Nappi. Approximately four
meetings had taken place , before May 25 , when negotia-
tions came to a temporary halt. In mid -May, Logan, a
member of the bargaining committee , was discharged be-
5 Preliminary to the meeting , Horn had written Embleton two addi-
tional letters In one he reiterated his request that contract , proposals be
presented by both parties at the first negotiating session . In another letter,
he asked the Company for additional information relating to new hire
rates, the method of calculating rates in each job classification , and addi-
tional information concerning the Respondent 's profit-sharing plan He
also renewed the Union 's earlier request that he be allowed to tour the
plant
cause of violations of the Company's absenteeism rules.
Nevertheless, he attended the May 25 meeting. Before
any formal discussions began , Embleton took Nappi aside
and informed 'him of the discharge. He told Horn that
the Company would not continue to negotiate in the
presence of Logan because it could not discuss confiden-
tial matters in the presence of a nonemployee . Horn re-
plied that he felt that Logan had been discharged unjust-
ly. Embleton agreed to discuss the merits of Logan's dis-
charge in Logan's presence but was adamant that the
Company would not discuss any matters of general ap-
plication to the contract unless Logan left.
When the lead negotiators rejoined their associates, the
parties were still at loggerheads concerning the presence
of Logan at the bargaining session . When the Company
pressed ' its point, Horn told Embleton facetiously that
Logan would leave if Nappi would leave . The Respond-
ent said that it would resume negotiations as soon as
Logan left the room. Logan did not leave so the meeting
broke up., The parties did not meet again until July 28.
On June 3, Horn wrote Embleton , arguing his case
about Logan and requesting that negotiations be re-
sumed . Embleton replied on June 8, reciting the events
of May 25 from his point of view and accusing the
Union of bargaining in bad faith by insisting that Logan
remain at the bargaining session . Embleton offered to
resume talks "with you and your lawful committee mem-
bers" at any time Horn might choose.
On July 12, the Union filed the first of two charges in
this consolidated case. On the following day, Embleton
wrote Horn and , informed him that the Company would
agree to meet again in the presence of Logan, although it
still maintained that Logan was not a,proper member of
the bargaining committee . The parties then resumed dis-
cussions on July 28. Thereafter, they,met on August 12
and 26 , September 8 and 22, and October 3 and 25.
Logan attended some but not all of these sessions. An
objection to his, -presence was never raised again at nego-
tiations.
Despite the fact that several meetings had been held, a
large number of issues remained unresolved. Among
those issues was the Union 's request that the discharges
of Logan and two other former employees be arbitrated
and a disagreement over the length of the contract. On
this latter point, the Respondent made an offer at the Oc-
tober 3 meeting for a contract of 2 months' duration.
Embleton justified this, proposal on the basis that the
Company wanted its employees to have another chance
to vote on whether they wanted to continue to have the
Union as their bargaining agent . The offer was entirely
unacceptable to the Union , which was seeking a 3-year
agreement.
At the outset of the October 25 meeting, ' Horn an-
nounced that the Union was acceding to the Company's
position on all outstanding issues or was withdrawing
any unresolved union demands from the bargaining table,
with two exceptions . The Union retreated from a 3-year
demand on contract term to a 6-month demand . It also
held fast on sending Logan 's case to arbitration . Emble-
ton then called Horn aside for a discussion out of the
hearing of the other negotiators . I credit Horn 's uncon-
COLFOR, INC
tradicted testimony6 that Embleton said to him on this
occasion that "I don 't know why you're so hung up on
the duration of the contract. I've indicated to you that
most of the employees whom you represent now don't
want you here any more. Why do you want to continue
holding that?" Horn replied that his reading of employee
sentiment was quite different , noting that the Union had
been conducting membership meetings as talks continued
at the bargaining table.
Embleton then told Horn that he could not agree to
sending Logan 's discharge case to arbitration and asked
that it be removed from the table. He said he would be
willing to move froma December expiration date on the
contract to a March expiration date if the Union would
withdraw all Board charges then pending. At this time,
the first charge in this case was the only one on file.
Embleton asked for time to review this proposal with
his committee . Upon resuming discussions with Emble-
ton, Horn told him that he was not in a position at that
time to withdraw the charge relating to Logan' s pres-
ence at the bargaining table because he- would have to
clear any withdrawal of a charge with the Union's re-
gional director, Warren Davis, in Cleveland . He also said
that he was not in a position to withdraw his demand to
send Logan 's case to arbitration because Logan was not
present and would have to be consulted . After telling
Embleton that the Union could not make a decision
today on these matters, Embleton then replied that he
would withdraw all previous offers and would return to
his initial demand for, a 2-month contract term. Horn
suggested that the parties were "at impasse" but wanted
another meeting soon . Embleton agreed to call Horn's
office to ', set up another meeting.
Embleton had previously given Horn his home tele-
phone number and had invited Horn to call him at home
if the situation warranted. On the following day, when
Horn had not heard from Embleton, he called Embleton
at his house. Embleton returned Horn's call on October
27 and told him that November 4 was the first date he
would be available because of other commitments. Horn
agreed to meet on November 4.
On October 31, Embleton, Nappi, and company offi-
cials met briefly, decided that they ` would individually
appraise the present bargaining situation, and agreed to
meet again on November 3 to determine a course of
action. On November 3, they met and decided that they
would accept Horn's evaluation that negotiations were at
impasse. They decided to break off negotiations and to
implement a proposed 55-cent wage increase that had
been on' the table` for several months.
On November 4, about 2 hours before the parties were
scheduled to meet, Embleton phoned Horn and called
off the meeting. He told Horn that he was doing so on
6 Despite the fact that' Embleton was the Company 's lead negotiator,
he was not summoned as a witness Between the breakup of negotiations
and the date of the hearing, the Respondent had discharged Embleton
and hired another attorney , the second change of attorneys at had experi-
enced since its dispute arose with the Union in 1979 Calling on Emble-
ton to be ' a company witness might pose a sticky trial problem for the
Respondent , but this was no excuse for not calling him. Under well-set-
tied rules of evidence, I conclude that the Respondent 's failure to
produce Embleton as a witness supports a conclusion that his testimony,
if given, would be adverse to the contentions of the Respondent
1179
company instructions . Embleton expressed the opinion
that no meaningful purpose would be accomplished by
going through with the scheduled bargaining session and
further informed Horn that he had no intention of meet-
ing with the Union thereafter. He told Horn that the
Company was going to implement the 55 -cent-an-hour
wage proposal that they had made and that , if Horn had
any objections , he should register a formal objection.
Horn expressed chagrin that, after many years of fighting
over legal questions, negotiations should break up when
the parties were not very far apart. He told Embleton
that the Union had a genuine belief that everything
could be worked,out if the parties would only sit down
together again , and he asked for another meeting. Emble-
ton said that he would call Horn again about setting up
another meeting sometime in November , but he never
called.
What followed from this point was an exchange of
correspondence in which both parties simply memorial-
ized events as they saw them and argued their respective
positions to each other. On November 9, Embleton
wrote Horn telling him that an impasse had occurred, re-
iterating the fact that a wage increase had long been pro-
posed , that Horn had agreed to its implementation, and
that the Company was going to put it into effect. On No-
vember 15, Horn wrote to Embleton. He claimed that he
never said that the parties were at an absolute impasse.
He recited the efforts that had been made to establish an-
other meeting and the fact that a November 4 date had
been agreed on. He also set forth the facts surrounding
the cancellation of that meeting and complained that
Embleton had not contacted him to set up another meet-
ing. He threatened to file another charge unless Emble-
ton contacted him promptly. ,
On February 9„ 1984, Nappi wrote to Horn, advising
him that the Respondent had discharged Embleton as its
attorney and suggested that any'further correspondence
be directed to himself. On February 13, 1984, Horn
wrote to Nappi, asking to be informed' of the name of
any new firm that the Company was retaining . He asked
again for a resurription of negotiations . On March 7,
Nappi replied that the Company accepted the Union's as-
sessment of the October 25 bargaining posture of the par-
ties, namely, that '' they were at an impasse, and he in-
formed Horn that the Company's position remained un-
changed. He also! told, Horn that the Company had not
hired any other lawyer. The Union, 5 ,days later, filed
the second charge in this case.
11. ANALYSIS AND CONCLUSIONS
A. The Refusal of the Respondent to Negotiate in the
Presence of Clifford Logan
An employer has no right to dictate to a union the se-
lection of its bargaining agents. The fact that some or all
the members of a , union's bargaining committee are not
employees of the employer is an irrelevancy, in the ab-
sence of some unusual factor. Standard Oil Co., 137
NLRB 690 ( 1962), enfd . 322 F.2d 40 (6th Cit. 1963). "To
select one's own representative or agent, is a natural right
and the statute accords it in express terms ." NLRB v.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roscoe Skipper, 213 F .2d - 793, 794 (5th Cir. 1954); see
also Canton Sign Co., 174 NLRB 906 (1969); Racine Die
Casting, 192 NLRB 529 ( 1971). In the instant case, Emb-
leton objected to Logan 's presence on May 25 , 1983, on
the basis that confidential matters were at issue at the
bargaining session and they should not be discussed in
the presence of a nonemployee , Interestingly enough,
both of the principal negotiators in this case , Horn and
Embleton , were nonemployees of the Respondent. His
objection was frivolous.
The Respondent 's later effort to lend a patina of re-
spectability to Embleton 's refusal to bargain in the pres-
ence of Logan centered on the contention that somehow
Logan's presence at the bargaining table constituted a
"clear and present danger" to the continuation of negoti-
ations. Nothing to this effect was said by Embleton or
Nappi on May 25. This post hoc rationalization by coun-
sel flies in the face of the Company 's willingness to con-
tinue with Logan present once an unfair labor practice
charge had been filed , and the fact that negotiations pro-
ceeded without adverse incident after July 13, notwith-
standing Logan's occasional presence. Indeed, it was
Logan 's absence at the final session that posed a problem
in finally resolving the differences between these parties.
The only "clear and present danger" to the Respondent,
which attended these negotiations , was the possibility
that the parties might actually come to terms, thereby
precluding the holding of a 'decertification election.
Embleton said as much to Horn during their final face-
to-face encounter . By failing and refusing to bargain col-
lectively because the Union insisted that Clifford Logan
be a member of its bargaining committee , the Respond-
ent violated Section 8(a)(1) and (5) of the Act.
B. The Refusal to Bargain on and after November 4,
1983
According to the Respondent , the parties were at im-
passe on October 25. Horn had said so and the Respond,
ent was justified in taking him at his word . Because the
parties were at impasse , no further negotiations were
warranted and the Respondent was free to implement its
last offer. Moreover, because it had bargained in good
faith for a calendar year since November 1, 1983, its
duty under the law has been fully discharged and it
became free to assert ' a self-proclaimed good-faith doubt
concerning the Union's continued majority status. Ac-
cordingly , the Respondent was at liberty to avoid any
future negotiations and could await whatever might tran-
spire, hopefully another decertification petition from On-
dusko that would not be processed unimpeded by consid-
erations of an extended certification year or the Board's
contract-bar rules. Then the Respondent and its employ-
ees could' return to where they were before the Union
arrived back in 1979, and the events of the past 6 years
would amount to nothing more than a bad dream, ac-
companied by some legal fees.
The Board set forth its definition of bargaining impasse
long ago in Taft Broadcasting Co., 163 NLRB 475, 478
(1967), and that definition has been followed ever sine.'
In Taft Broadcasting,, the Board stated:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations , the length of the negotia-
tions, the importance of the issue. or issues as to
which there is disagreement , the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
The Board further stated in Patrick & Co., 248, NLRB
390 (1980), that an impasse exists when the parties are
warranted in assuming that further bargaining would be
futile. One factor that does not define the existence of an
impasse is a statement by an untutored negotiator who
uses this term or art without legal precision . Saunders
House, supra at 1633 fn. 3.
On the thorny question of contract term , the Union
had come down from a 3-year demand to a 6-month
demand . The Respondent had come up from a 2-month
proposal to a 4-month proposal that was conditioned on
the willingness of the Union to withdraw the outstanding
unfair labor practice charge.8 On contract term the par-
ties were only 2 months apart until the Respondent ren-
eged on its 4-month offer after Horn announced that he
would have to check with his superior before , agreeing to
a withdrawal of charges . Horn had withdrawn his rein-
statement demand on former employees Cooper and
Rogers, but told Embleton he could not withdraw his
proposal to take the Logan case to arbitration without
first , checking with Logan, who was not present. All
other contract issues that had divided the parties
throughout several months of negotiations had been -re-
solved because, at the outset of the meeting, the Union in
effect had capitulated to the company positions on all
other unresolved issues. Far from being at impasse on
this occasion , the parties were at the brink of an agree-
ment . 9 The fact that Horn described the situation as an
7 E. I. DuPont & Co; 268 NLRB 1075, 1076 (1984), Saunders House,
265 NLRB 1632, 1634 (1982), Briarcliff Pavilion, 260 NLRB 1374, 1376
(1982).
8 Nappi's notes of the October 25 session state:
Embleton proposes that any contract settlement should include
recognition that the UAW has withdrawn any present or pending
unfair labor practice charges . Horn indicated that the Union has five
pending unfair labor practice charges He indicated that Colfor will
be receiving them Embleton asked what the nature of these charges
were Horn was not specific but he indicated that he believed that
Colfor was bargaining in bad faith, Collor was delaying the proceed-
ings, and that Colfor was violating the law. There was a short recess
by Nappi and Embleton.
9 If the Respondent is correct and the parties were truly at impasse,
then the Respondent is necessarily guilty of an unfair labor practice by
bargaining to impasse over a nonmandatory subject of bargaining,
namely, its demand that the Union withdraw unfair labor practice
charges as the price of a contract Bargaining to impasse over this subject
is a violation of Sec 8 (a)(1) and (5) of the Act , although placing the
question on the table for discussion is permissible Star Mfg. Co, 220
NLRB 582 (1975), Griffin Inns, 229 NLRB 199 (1977), Peerless Food
Products, 231 NLRB 530 (1977); Inner City Broadcasting Corp, 270
NLRB 1230 (1984).
COLFOR, INC. 1181
impasse reflects only on Horn's understanding of what
this term means in labor law, not on the facts and'cir-
cumstances that confronted the parties,on that occasion.
That the parties in fact had a contrary understanding is
clearly evidenced by the willingness of both Horn and
Embleton to meet again and the fact that they set a date
for another meeting. Only after company officials had
second thoughts on November 3 did the Respondent
seize on Horn's remark as a pretext for breaking off ne-
gotiations . At that point, they were 3 days beyond the
extended certification year, as they had calculated that
period of time, and the time had finally arrived for the
assertion of a good-faith doubt concerning the Union's
continued majority status.1 ° ' Tested by criteria an-
nounced in Taft Broadcasting, the parties were not at im-
passe on October 25 and the Respondent was not justi-
fied in breaking off negotiations thereafter, because there
was no basis whatsoever to suggest that further negotia-
tions would be futile. Indeed, there was every reason to
believe that one more session would wrap up all out-
standing issues, once Horn touched base with Logan `and
his director in Cleveland, and it is this likely possibility
that the Respondent wished to avoid.' By failing and re-
fusing to meet and negotiate with the Union after No-
vember 4, 1983, the Respondent violated Section 8(a)(1)
and (5) of the Act.
On the foregoing findings of fact and on the entire
record considered as a whole, and pursuant to Section
10(b) of the Act, I make the following
CONCLUSIONS OF LAW
1. The Respondent , Colfor, Inc., is now, and at all
times material has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America (UAW), Local Union No. 2148, is a labor orga-
nization within the meaning of Section 2(5), of the Act.
3. All production and maintenance employees, includ-
ing quality control employees, employed by the Re-
spondent at its Malvern, Ohio plant, but excluding all
office clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since April 8, 1980, the Union, by virtue of Section
9(a) of the Act, has been,' and is, the exclusive collective-
bargaining representative of all the employees in the unit
found above for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
10 The core of the Company's good-faith doubt of the Union's majori-
ty status was the filing of several decertification petitions, none of which
were then pending, and the fact that the showing of interest that accom-
panied the first decertification petition had been brought to the Compa-
ny's attention as an attachment to a pleading in Ondusko's lawsuit. This
petition ostensibly contained the signatures of 77 employees in a bargain-
ing unit of 139 'Without going into the question of the validity of the
signatures themselves, it must be remembered that they were collected in
1981 at a time when the Respondent was violating the Act by refusing to
bargain with,the certified representative of its employees Accordingly,
such a showing of interest is necessarily tainted and can hardly be used to
support a doubt that purports to be in good faith.
5. B`y refusing to bargain collectively with the Union
because Clifford Logan was a member of the bargaining
committee and was present at negotiations, and by refus-
ing to bargain collectively with the Union on and after
November 4, 1983, the Respondent has violated Section
8(a)(5) of the Act.
6. The aforesaid'unfair labor practices violate Section
8(a)(1) of the Act and have a close, intimate, and adverse
affect on the free flow of commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has committed vari-
ous unfair labor practices, I recommend that it be' re-
quired to cease and desist therefrom and to take other af-
firmative actions necessary to effectuate the purposes of
the Act. I recommend that the Respondent be required
to bargain collectively in good faith with the Union' and,
if an agreement is reached, to embody the terms of that
agreement in a signed written instrument. I also recom-
mend that the Respondent be required to post the usual
notice advising its employees of their rights and of the
results in this case.
One of the most contentious issues in this case involves
whether the certification year should be extended and, if
so, how much of an, extension should be ordered. The
Board's extension of the certification year in the earlier
unfair labor practice case, which was upheld in 1982 by
the court of appeals, presupposed that the Respondent
would bargain fora year in good faith, 1 The remedy in
question stated:
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See' Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company, d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1964), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enf. 350 F.2d 57 (10th Cir. 1965).
The consolidated complaint in this proceeding states that
the Acting General Counsel is seeking an order requiring
the Respondent, "inter alia, to bargain in good faith with
the Union, upon request, for the period required by Mar-
Jac Poultry Company, Inc., 136 NLRB 785 (1962), as the
recognized bargaining representative in the appropriate
unit." The consolidated complaint did not suggest what
that period of time might be.
- In her brief, the General Counsel contends that the
certification year should be found to begin on March 18,
1983, the date of the first bargaining session. He suggests
that it be enlarged for a period of about 6 months
i i When asked why this case was being tried before an administrative
law judge as a new proceeding rather than as part of a contempt citation
before the Sixth Circuit, the General Counsel had no answer
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beyond its normal date of expiration because he would
exclude from the computation of the certification year
the period of time between May 25 and July 28, 1983,
when the parties did not meet because the Respondent
objected to Logan's presence at negotiations, and the
period of time between November 4, 1983, and March
18, 1984 (his suggested expiration date), when the Re-
spondent refused to bargain at all.
The Respondent takes alternative positions. It also has
a "stop-and-go" view of the certification year. It con-
tends that the certification year should begin on Novem-
ber 1, 1982, when it first notified the Union that it would
bargain and when it supplied certain information previ-
ously requested. Under normal circumstances, this would
mean that the year would have expired on November 1,
1983. In the alternative, the Respondent argues that, if it
be found guilty of wrongfully refusing to bargain be-
cause of its objections to the presence of Logan at the
bargaining table, only 49 days-that period running from
May 25 to July 13, when it notified the Union that it
would agree to permit Logan to be present during nego-
tiations-should be tacked on to the certification year. It
argues that the delay in the commencement of bargaining
between November 1, 1982, and March 18, 1983, was at-
tributable to footdragging and indifference on the part of
the Union, and that it should not be chargeable with any
delay attributable to the Union's neglect.
It should be noted that the consolidated complaint
does not allege as a violation that the Respondent was
guilty of a violation of the Act because of overall subjec-
tive bad faith in bargaining, and the General Counsel has
sought no finding in such a violation of the Act. Accord-
ingly, no such violation has been found. However, the
question of whether, the certification year should be ex-
tended because of the failure of the Respondent to
comply with a previous Board order is another matter.
This question relates to the appropriate remedy in this
case and perforce to the question whether the Respond-
ent has complied with a remedy in another case that has
been ordered by the Board and has been judicially en-
forced. Matters of remedy are peculiarly the province of
the Board, and its discretion in this regard is not circum-
scribed by the positions of the parties, which are only
advisory.
Since May 20, 1982, the Respondent was under a court
order not only to bargain but to bargain in good faith.
The certification year, which was extended under the
doctrine of Mar-Jac Poultry, supra, begins to run when
the Respondent commences to bargain in good faith, not
merely when it starts going through the motions of bar-
gaining.12 The Respondent believes this happened on
November 1, 1982. The General Counsel thinks that this
happened on March 18, 1983. I believe it has yet to
happen.
In establishing compliance with a remedy ordered by
the Board in a previous case, the burden is clearly on the
Respondent, not the General Counsel, as it is in most
12 Stan Long Pontiac, 175 NLRB 433 (1969), Glomac Plastics, 234
NLRB 1309 (1978), enfd 592 F 2d 94 (2d Cir 1979), Cocker Saw Co., 186
NLRB 893 (1970), enfd. 446 F 2d 870 (2d Cir 1971), Big Three Industries,
201 NLRB 700 (1973), enfd 497 F 2d 43 (5th Or 1974)
compliance matters,' 3 because the Respondent is in the
position of a judicially determined wrongdoer who is
seeking to extricate itself from the results of its own mis-
conduct. The good faith that,the Respondent must estab-
lish is a quality of mind and heart that is being exercised
as it goes about its duty of bargaining with the Union.
Good faith is not a commodity, like water eminating
front a garden hose, which can be turned on and off
from time to time as the situation warrants. Good faith
means a bona fide effort to reach agreement, not count-
ing the days until one can avoid collective bargaining en-
tirely.
In this case, the Respondent waited 5 months from the
time it was ordered to bargain by the court of appeals
before it gave any indication to the Union that it would
discuss contract terms. It did not do so until it was
threatened with a contempt citation. It waited over 3
months before supplying the Union with the information
requested by the Union in a July letter, whereas its obli-
gation under the Act was to produce relevant informa-
tion promptly. It refused the union representative access
to the plant to inspect the operation, without establishing
any solid foundation for its speculative excuse that his
presence would disrupt production. It chewed up time
after negotiations commenced with the frivolous conten-
tion that it could not bargain because a former employee
was on the Union's negotiating committee. As the certifi-
cation year was drawing to a close, the Respondent re-
coiled from the actual making of an agreement by ad-
vancing another frivolous contention, namely, that
Horn's description of the October 25 bargaining session
as an impasse made it so, when in fact the parties were
so close to an agreement that another session might well
have resolved the few matters that narrowly separated
them. Meanwhile, the Respondent laid a paper trail
through the negotiations and engaged in finger pointing
and placing the blame on the Union for every problem
that arose. This was not a demonstration of good-faith
bargaining that a certification year is intended to accom-
modate. This was a marking of time to set the stage for
Ondusko to come forward with yet another decertifica-
tion petition that, under Embleton's assessment of union
strength, would result in an elimination of the Union en-
tirely. In light of the Respondent's behavior in this case,
I recommend that the certification year be extended for a
period of 1 year, beginning with the time the Respondent
actually starts to bargain with a view toward reaching a
contract, not when it meets and confers with the Union
for the purpose of passing more time.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
13 NLRB v. Trident Seafoods Corp, 642 F2d 1148 (9th Cir 1981),
NLRB v Trans Ocean Export Packing, 473, F 2d 612 (9th Cir 1973),
NLRB v. Charley Toppino & Sons, Inc., 358 F 2d 94 (5th Or 1966),
NLRB v. Mooney Aircraft, 366 F 2d 809 (5th Cir 1966), Burger Boy Food-
O-Rama, 164 NLRB 975 (1967), Colonial Corp. of America, 171 NLRB
1553 (1968)
14 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
COLFOR, INC. ' 1183
ORDER
The Respondent, Colfor, Inc., Malvera, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union because of the
presence at the bargaining table of Clifford Logan or be-
cause any other member of the union bargaining' commit-
tee who is present, is not an employee of the Respondent.
(b) Refusing to bargain collectively in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of its production and maintenance employees.
(c) In any like or related manner interfering with, re-
straining, 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
effectuate the purposes and policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive collective-bargaining representative , of all
the employees in the aforesaid appropriate bargaining
unit with respect to rates of pay, wages, hours, and' other
terms and conditions of employment, and, if an under-
standing--is reached, embody such understanding in a
signed written agreement.
(b) Post at its Malvern, Ohio plant copies of the Sat-
tached notice marked "Appendix."15 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 150 consepu-
tive days in conspicuous places including all places
where notices to employees are customarily, posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."