Concrete Pipe & Products Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1991

305 N.L.R.B. 152 (N.L.R.B. 1991)

152
305 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party’s motion to strike portions of the Respond-
ent’s exceptions and brief is denied. The Charging Party contends
that the Respondent may not raise a defense that the employees’
offer to return to work was conditional because its answer to the
consolidated complaint admitted that employees made an uncondi-
tional offer to work on July 30, 1987. The Respondent’s position,
however, is that subsequent to the July 30, 1987 offer to return, the
offer was thereafter made conditional. This defense is not precluded
by the Respondent’s answer.
The Charging Party’s motion to strike the Respondent’s letter
dated July 25, 1989, is granted as that letter contains substantive ar-
gument and was filed subsequent to the time for the filing of briefs
under Sec. 102.46 of the Board’s Rules and Regulations. In contrast,
the Charging Party’s submission of July 17, 1989, contains no sub-
stantive argument. See Downtowner Motor Inn, 262 NLRB 1058 fn.
1 (1982).
2 The Charging Party has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 The judge discredited the testimony of the Union’s negotiators
that the Respondent on numerous occasions during bargaining spe-
cifically pleaded that it was losing money and could not afford to
pay the Union’s demands. The judge found, however, that even
under Melfi’s credited version, a duty to disclose economic informa-
tion was triggered.
Concrete Pipe and Products Corp.-Syracuse Divi-
sion and United Steelworkers of America,
AFL–CIO–CLC, Local Union 14534. Cases 3–
CA–13724 and 3–CA–13932
September 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 27, 1988, Administrative Law Judge
Harold B. Lawrence issued the attached decision. The
General Counsel filed exceptions, the Respondent filed
exceptions and a supporting brief, the Charging Party
filed cross-exceptions, and the General Counsel, the
Respondent, and the Charging Party filed answering
briefs.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision, the excep-
tions, cross-exceptions, and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this decision and to
substitute the attached Order for the order rec-
ommended by the judge.
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing to furnish to the Union
requested economic information, by refusing to bargain
in good faith, and by unilaterally changing terms and
conditions of employment. The judge also found that
the Union engaged in an unfair labor practice strike in
response to the Respondent’s bargaining violations and
that the Respondent violated Section 8(a)(3) and (1) by
failing to reinstate unfair labor practice strikers after
their unconditional offer to return to work. For the rea-
sons below, we find that the Respondent did not vio-
late Section 8(a)(5) and (1) and that the strike was eco-
nomic in character. We find, however, that the Re-
spondent violated Section 8(a)(3) and (1) by failing to
reinstate economic strikers to positions that became
available after their unconditional offer to return to
work.
1. The complaint alleges that the Respondent failed
to furnish requested financial information to the Union
while taking the position at bargaining that it was fi-
nancially unable to afford the costs of the soon-to-ex-
pire collective-bargaining agreement. The judge found
that the Respondent triggered a duty to disclose eco-
nomic information under NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956), by virtue of the following opening
statement of the Respondent’s president, Nicholas
Melfi, at the outset of negotiations.3
Our business is suffering a declining market
due to the many new competitive products such
as the (i.e. various plastics).
Also there has been intense competition from
several concrete pipe producers. (i.e. K & S Sup-
ply—Buffalo, Bundy Concrete Products—Utica &
Watertown, Loomis & Sons—Montrose, Kistner
Concrete Products—Buffalo, Lakeland Products—
Rochester). These competitors are non-union and
it is my understanding that their labor costs are
very low. Also they do not have contractual re-
straints as we do.
Consequently it is imperative that we consider-
ably lower our labor costs. We must have the
flexibility to manage and supervise in a way to in-
crease productivity, product quality and customer
service. Our current agreement does not give us
the flexibility we need, so there have to be
changes made.
To survive in today’s market we have got to be
able to be competitive, and to be competitive,
wage rates and benefits must be lowered. These
are our Contract Proposals which we believe are
necessary to accomplish what I have said.
We disagree with the judge and find that the Re-
spondent did not trigger a duty to furnish economic in-
formation. The Respondent’s claims here, as set forth
in Melfi’s statement, do not raise a claim of present
inability to pay under Truitt. The Respondent’s asser-
tions pertain only to declining market conditions attrib-
utable to competition from other businesses. Melfi’s
reference to the Respondent’s need ‘‘to survive’’ is
nothing more than a restatement of its stated desire to
compete—‘‘to survive in today’s market we have got
153CONCRETE PIPE & PRODUCTS CORP.
4 The judge found that the Union’s negotiators operated under the
erroneous belief that the Respondent was, in fact, losing money and
that the Respondent did nothing to enlighten them about their actual
economic condition. As the judge found in discrediting the Union’s
witnesses, however, the Respondent never told the Union that it was
losing money.
5 The Respondent sought a cut in wages of approximately one-
third, a reduction in paid holidays and vacations of about 50 percent,
and substantial reductions in paid sick leave, cost of medical insur-
ance, and other benefits.
to be able to be competitive, and to be competitive,
wage rates and benefits must be lowered.’’ The Re-
spondent did not assert that it was losing money or
that its business was at some imminent risk of closing
down. As the Respondent simply asserted that it was
not competitive and that it wanted to reduce its costs,
it was not obligated to furnish economic information to
the Union and, therefore, did not violate Section
8(a)(5) and (1) by failing to comply with the Union’s
information request.4
2. The judge found that the Respondent failed to
bargain in good faith during the course of negotiations
and unilaterally implemented its financial proposals as
to wages, holidays, medical insurance premiums, and
sick leave without first reaching a good-faith impasse
with the Union. We disagree.
As the judge repeatedly found in reaching his con-
clusion that the Respondent failed to bargain in good
faith, the Union’s request that the Respondent furnish
economic information was, from the outset, central to
the parties’ negotiations. At the beginning of negotia-
tions, on March 10, 1987, the Respondent presented
economic demands that called for substantial reduc-
tions in existing benefits5 In response, according to the
credited testimony of Melfi, Union Representative
George Prenatt immediately stated it was a policy of
the International Union ‘‘not to negotiate for conces-
sions unless they were given the company books’’ and
a reason for such concessions was thereby dem-
onstrated. Thus, in finding that the Respondent failed
to bargain in good faith, the judge concluded that ‘‘the
failure of the negotiations was preordained by Re-
spondent’s own failure to make cost data available to
the Union,’’ that ‘‘Melfi’s refusal to grant access to
company records which supposedly justified such de-
mands, amount[ed] to a rejection of the collective-bar-
gaining process and denigration of the Union,’’ that
agreement was not out of reach ‘‘except for Respond-
ent’s insistence upon a one-third wage reduction and
steep cuts in other benefits while refusing to give the
Union an informational basis on which to judge the
reasonableness of the demand,’’ that Melfi sought deep
economic concessions ‘‘without meeting the Union’s
demand for verification of the need for such drastic ac-
tion, thereby making rejection of his bargaining pro-
posals inevitable,’’ and that ‘‘Melfi steadfastly refused
access to the records with full awareness that the
Union could not agree to his demand for concessions
without access to the company’s financial records.’’
We have found that the Respondent was, in fact, en-
titled to reject the Union’s request for financial infor-
mation. As a result, the Respondent’s unwillingness to
furnish the requested data was not evidence of bad
faith. Further, as the eventual breakdown of negotia-
tions clearly was attributable to the Union’s insistence
that the Respondent furnish financial information to
substantiate its demand for concessions and to the Re-
spondent’s rejection of that demand, it follows that the
collapse of the negotiations was, as the judge found,
‘‘inevitable’’ in view of these respective bargaining
postures. Accordingly, we are unable to conclude, as
did the judge, that the collapse of the negotiations was
attributable to any bad faith on the part of the Re-
spondent in steadfastly declining to furnish economic
information.
We also reject the judge’s findings that the Re-
spondent’s proposals were so intrinsically unreasonable
as to constitute evidence of bad faith, that the Re-
spondent denigrated the Union in order to frustrate ne-
gotiations, and that the Respondent prematurely broke
off negotiations in a manner demonstrating bad faith.
In Reichhold Chemicals, 288 NLRB 69 (1988), we
found that, when appropriate, bargaining proposals can
be examined to consider whether a demand is clearly
designed to frustrate agreement. This inquiry, however,
is not a subjective evaluation of the proposals’ content.
Litton Microwave Cooking Products, 300 NLRB 324
(1990). Proposals that seek deep reductions in alleg-
edly noncompetitive existing benefits are not nec-
essarily indicative of a desire to frustrate negotiations.
The General Counsel presented no evidence that the
Respondent was factually inaccurate when it informed
the Union at the outset of negotiations that its competi-
tors (which the Respondent specifically named) had
‘‘very low’’ labor costs in comparison to the Respond-
ent. An employer’s desire to bring its labor costs in
line with its competitors, standing alone, is not an ille-
gitimate bargaining goal. If those competitors happen
to be nonunion, it does not necessarily follow that an
employer’s attempt to bargain for comparable wages
and benefits means that the employer is seeking to
frustrate negotiations in order to rid itself of the Union.
The judge found, however, that ‘‘to Melfi, meeting
competition meant to go non-union, either actually or
practically.’’ According to the judge, a proposal that
seeks wages and benefits that may be comparable to
nonunion wages and benefits is inherently unreason-
able. We reject the judge’s premise because it is essen-
tially a subjective evaluation of the content of the Re-
spondent’s proposals, an inquiry that is not appropriate
under Reichhold Chemicals.
The judge also found evidence of bad faith based on
the Respondent’s cessation of bargaining at 6 p.m. on
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We note that the Respondent’s modifications of its initial offer
distinguish this case from American Meat Packing Corp., 301 NLRB
835 (1991).
7 We find no merit to the judge’s reliance on remarks attributed
to foreman Bob Weaver by strike replacement David Guiffrida.
Guiffrida testified that strike replacements were concerned about the
stability of their jobs and asked Weaver what would happen when
the strike was over. Weaver replied that the replacements should not
worry, that their jobs were permanent, and that the ‘‘Union guys,’’
i.e., striking employees, would not be back. In context, Weaver’s re-
marks do not tend to establish that the Respondent intended to frus-
trate negotiations and rid itself of the Union. Essentially, they show
nothing more than Weaver’s attempting to assure replacements that
they would not be displaced by returning strikers.
8 For the reasons set forth by the judge, we find that the Union’s
unconditional offer of July 29, 1987, to return to work remained un-
conditional at all pertinent times. We also find no merit to the Re-
spondent’s contention that employees are not entitled to reinstate-
ment because they failed to physically present themselves for a re-
turn to work when positions became available. When positions be-
came available, the Respondent was obligated to make offers of rein-
statement. It failed to do so. Instead, although the unconditional offer
to return to work remained outstanding, the Respondent informed the
Union on August 20, 1987, that ‘‘all strikers who make an uncondi-
tional offer to return will be considered’’ for existing openings and
should report to the Company and ‘‘seek striker reinstatement.’’ At
no time did the Respondent unequivocally offer reinstatement. For
these reasons, Coca Cola of Memphis, 269 NLRB 1101, 1105
(1984), cited by the Respondent, is inapposite. In that case the em-
ployer responded to an unconditional offer to return to work by di-
recting that returning strikers report ready to begin work and that re-
instatement ‘‘will be given.’’
9 We shall leave to compliance ascertainment of the precise num-
ber and identity of returning strikers who may have been affected
by the Respondent’s failure to reinstate economic strikers to avail-
able former or substantially equivalent positions.
The Union contends that the replacements hired by the Respondent
were not offered permanent positions. The record shows, however,
that replacements were assured that they were hired as permanent re-
placements and were told that the only way this would change was
if strikers were offered reinstatement as a settlement of the labor dis-
pute. Hansen Bros. Enterprises, 279 NLRB 741 (1986), cited by the
Charging Party, is inapposite. In that case the employer never told
replacement employees that they were permanent.
March 20, 1987, 6 hours before the expiration of the
collective-bargaining agreement. In our view, the Re-
spondent’s failure to bargain to the stroke of midnight
under the circumstances of this case is not indicative
of a desire to frustrate negotiations. Because of the
parties’ differences regarding the Union’s entitlement
to financial information, the Respondent and the Union
were far apart on economic terms. Although the Re-
spondent improved its economic offer to some extent
during the course of negotiations, and the parties
reached agreement on a number of noneconomic mat-
ters,6 the Respondent still sought substantial reduc-
tions, while the Union continued to seek a wage in-
crease, until the Union’s last offer at the end of the
session to continue the status quo for 1 year. At that
point, there was no likelihood of real progress, and it
is clear that negotiations collapsed because the parties
were hopelessly deadlocked. Accordingly, an impasse
was reached on March 20, 1987, and the Respondent
was entitled to implement its last offer to the Union.7
3. The judge found that the strike which commenced
on March 21, 1987, was an unfair labor practice strike
because it was attributable to the Respondent’s conduct
in violation of Section 8(a)(5) and (1). The judge also
found that on July 29, 1987, the Union tendered an un-
conditional offer to return to work on behalf of the
strikers and that on July 30, 1987, the Respondent in-
formed the Union that it had no vacancies at that time.
The judge found that, as unfair labor practice strikers,
the returning strikers were entitled to immediate rein-
statement and that the Respondent violated Section
8(a)(3) and (1) by failing to reinstate them. As we
have found that the Respondent did not violate Section
8(a)(5) and (1), it follows that the strike was not an
unfair labor practice and that the strikers were eco-
nomic strikers.
Under Laidlaw Corp., 171 NLRB 1366 (1968), re-
turning economic strikers are generally entitled to full
reinstatement to their former positions on the departure
of their replacements. At the hearing, the parties stipu-
lated that ‘‘after July 30, 1987, Respondent continued
to hire employees to do bargaining unit work. The first
employees hired after July 30 were on August 31,
1987, and approximately 15 have been hired and there
have been separations.’’ Accordingly, it is evident that
bargaining unit positions have become available subse-
quent to the Union’s unconditional offer to return to
work8 By failing to offer reinstatement to returning
economic strikers consistent with their rights under
Laidlaw, the Respondent violated Section 8(a)(3) and
(1).9
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that the Respondent has failed and re-
fused to reinstate economic strikers who have tendered
unconditional offers to return to work, while subse-
quently hiring new employees to perform bargaining
unit work, we find that the Respondent has unlawfully
failed to reinstate economic strikers in accord with
their statutory rights. Accordingly, the Respondent
shall be ordered to offer economic strikers reinstate-
ment to any former or substantially equivalent position
that became available subsequent to their tender of an
unconditional offer to return to work, and to make
them whole for any loss of earnings or benefits they
may have suffered by reason of the Respondent’s un-
lawful failure to reinstate them, in accord with the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987).
155CONCRETE PIPE & PRODUCTS CORP.
10 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
National 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.’’
1 The Respondent’s president, Melfi, testified that he told the
Union that nonunion competitors were beating the Company on bids
and that the Respondent sought concessions to meet this competition.
The Respondent’s attorney, Hoover, testified that he told the Union
that with the wage rates the Respondent was proposing, it would be
able to bid more jobs, get more customers, and employees would be
making more money because they would work more hours. These
statements do not raise an issue of the Respondent’s present and im-
mediate economic health. Instead, they simply suggest that lower
wages and benefits would translate into lower bids and more work
for employees. This is neither a prediction of continued injury to the
employer’s business nor an assertion of poor financial condition.
ORDER
The Respondent, Concrete Pipe and Products Corp.-
Syracuse Division, East Syracuse, New York, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate economic strik-
ers to any available former positions or to substantially
equivalent positions that may have become available
subsequent to their unconditional offer to return to
work.
(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
effectuate the policies of the Act.
(a) Offer economic strikers reinstatement to any
available former positions or to substantially equivalent
positions that may have become available subsequent
to their unconditional offer to return to work.
(b) Make whole economic strikers who were unlaw-
fully denied reinstatement for any losses they may
have suffered as a result of the failure to reinstate
them, as set forth in the amended remedy section of
this Decision and Order.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of the Order.
(d) Post at the Respondent’s facility in East Syra-
cuse, New York, copies of the attached notice marked
‘‘Appendix.’’10 Copies of the notice, on forms pro-
vided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleged violations of the Act not
found herein.
CHAIRMAN STEPHENS, concurring.
I join my colleagues in finding that the Respondent
violated Section 8(a)(3) and (1) by failing to offer rein-
statement to returning economic strikers. I also agree
that the Respondent did not violate Section 8(a)(5) and
(1) by refusing to furnish economic information to the
Union under NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956), and that the Respondent did not otherwise
refuse to bargain with the Union in violation of the
Act.
In finding that the Respondent was not obligated to
disclose financial information, I rely on the fact that
the Respondent never made an issue of its present or
immediate financial condition. The Respondent stated
no objective basis for its bargaining position that was
subject to verification by reference to the Respondent’s
own financial records1 The statements that, in the
judge’s view, triggered a disclosure requirement were
the Respondent’s assertions that it faced intense com-
petition from other businesses and ‘‘in order to survive
in today’s market we have got to be able to be com-
petitive, and to be competitive, wage rates and benefits
must be lowered.’’ In my view, however, this kind of
vague and general statement regarding the ability to
‘‘survive’’ in the face of competition, by itself, only
places at issue the factual question of whether the Re-
spondent is, indeed, operating at a competitive dis-
advantage as to wages and benefits. Such an assertion
places at issue the difference between the wages and
benefits paid by the employer and those paid by its
competitors, but, without more, it does not place at
issue the financial health of the business. The Re-
spondent’s reference to ‘‘survival,’’ standing alone and
in the absence of any assertions of immediate eco-
nomic peril, strikes me as nothing more than vague,
strategic posturing.
Accordingly, for these reasons, I join my colleagues
in finding that the Respondent did not violate Section
8(a)(5) and (1) by failing to furnish the requested eco-
nomic information.
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1987 except as otherwise stated.
2 The matters narrated in this decision without evidentiary com-
ment are those facts found by me on the basis of admissions in the
answer, data contained in the exhibits, stipulations between or con-
cessions by counsel or parties, undisputed or uncontradicted testi-
mony, and in instances where conflicts in the testimony did not war-
rant discussion, the testimony which I have credited.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to reinstate economic
strikers to any available former position or to a sub-
stantially equivalent position that may have become
available subsequent to their unconditional offer to re-
turn to work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the rights guar-
anteed them by Section 7 of the Act.
WE WILL offer economic strikers reinstatement to
any available former position or to a substantially
equivalent position that may have become available
subsequent to their unconditional offer to return to
work and WE WILL make them whole, with interest, for
any loss of earnings and benefits they may have suf-
fered as a result of our failure to reinstate them.
CONCRETE PIPE AND PRODUCTS CORP.-
SYRACUSE DIVISION
Carl B. Newsome, Esq., for the General Counsel.
James Hoover, Esq. and James L. Matte, Esq. (Clark, Paul,
Hoover & Mallard), of Atlanta, Georgia, for the Respond-
ent.
James LaVaute, Esq. (Blitman & King), of Syracuse, New
York, for the Petitioner.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge. This
case was heard by me at Syracuse, New York, on January
19, 20, and 21 and March 8, 1988. The consolidated com-
plaint alleges that in March 1987,1 during the course of con-
tract negotiations, Respondent, Concrete Pipe and Products
Corp.-Syracuse Division, asserted that it could neither afford
the economic package provided for in the expiring collective-
bargaining agreement nor pay any increase in it, as de-
manded by United Steelworkers of America, AFL–CIO–CLC
(the Union); that the Union responded by requesting an ex-
amination of Respondent’s financial records and auditor-
verified books and records, which Respondent refused to fur-
nish; that by reason of such refusal, and by reason of Re-
spondent’s ‘‘overall acts and conduct,’’ Respondent failed to
bargain in good faith and thereby violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act), caus-
ing the employees to go out on strike on March 23; and that
Respondent’s rejection of the Union’s unconditional offer to
return to work violated Section 8(a)(1) and (3) of the Act.
Respondent admits declining to reinstate the strikers but de-
nies any wrongdoing or statutory violation.
The parties were afforded full opportunity to be heard; to
call, examine, and cross-examine witnesses; and to introduce
relevant evidence. Posthearing briefs have been filed by the
General Counsel and by counsel for the Respondent.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed herein, I make the following
FINDINGS OF FACT
I. JURISDICTION
There is no issue as to jurisdiction, Respondent’s answer
having admitted the pertinent jurisdictional allegations. Ac-
cordingly, I find that at all times material, Respondent was
and is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union
was and is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background2
Respondent, a New York corporation, is a subsidiary of
Superior Products, a family-owned corporation based in De-
troit, Michigan. It manufactures concrete pipe at several loca-
tions in the State of New York. Nicholas Melfi is president
of the corporation and Timothy Vanderpool is the manager
of its East Syracuse facility. Since 1957, Respondent has rec-
ognized the Union as the representative of its East Syracuse
employees in the following appropriate unit:
All employees of the Respondent at its East Syracuse,
New York facility; excluding all superintendents, assist-
ant superintendents, foremen, professional employees,
quality control employees and office clerical employees.
Well before March 20, the expiration date of the last col-
lective-bargaining agreement, Melfi and the Union com-
menced negotiations for a new contract. They met four
times—on March 10, 16, 18, and 20. At the opening session
on March 10, each side presented a set of proposals. The
Union wanted a large wage increase. Respondent demanded
concessions including steep cuts in wages and other compo-
157CONCRETE PIPE & PRODUCTS CORP.
3 Reporting time was pay for 4 hours for occasions when employ-
ees came in and had no work because there was no work for them
or because there was an equipment breakdown.
nents of the economic package. The employees were earning
$9 per hour under the existing contract. Initially, Melfi want-
ed to regroup the job classifications into a group A, starting
at $6.50 an hour, and a group B, starting at $6; cancel 8 of
the 12 paid holidays; cut vacation time; eliminate time and
a half over 8 hours, Sunday double time and reporting time;3
eliminate one of the two coffeebreaks; eliminate some con-
tract language he thought was unnecessary; require the em-
ployees to assume 50 percent or more of the cost of their
medical insurance; and make various changes in contract lan-
guage. The first and second negotiating sessions were held
at a Holiday Inn, and the third and fourth sessions were held
at the Union’s offices. At all of the meetings, the Union was
represented by George Prenatt and an employees’ negotiating
committee. Melfi acted for Respondent at the first three
meetings and, at Prenatt’s suggestion, appeared with his at-
torney, James C. Hoover, at the fourth meeting. At that
fourth meeting, the union negotiators were joined by Richard
Knowles, who was introduced as the Union’s insurance and
company benefits specialist.
At the fourth session, Respondent presented what Melfi
termed its ‘‘best offer’’ and requested the union negotiators
to present it to the membership at a meeting which they had
scheduled for the following morning, Saturday, March 21.
They did so. The employees unanimously rejected it and
went out on strike the following Monday morning, March
23. The parties met with a Federal mediator on June 25, and
though no progress was made toward settling the strike, the
Union and Respondent on their own reached an agreement
settling the unfair labor practice charge which had been filed
by the Union on March 25, in Case 3–CA–13724, which al-
leged violation of Section 8(a)(5) by reason of Respondent’s
refusal from and after March 16 to permit the Union to ex-
amine the Company’s financial records. The charge also al-
leged surface bargaining on the part of the Company. (The
Regional Director approved the settlement but revoked his
approval on October 9.)
On July 30, the Union made an unconditional offer to re-
turn to work on behalf of the striking employees. Though
there had been 19 employees in the bargaining unit when the
strike began, the Respondent replied that no positions were
available at that time and directed employees wishing to re-
turn to work to fill out application forms at the Company’s
personnel office. There were no openings because Respond-
ent had begun hiring replacement employees immediately
after the commencement of the strike, promising them per-
manent employment. Some replacements were hired after the
date of the Union’s offer. On August 24, more than 3 months
after it had made the unconditional offer to return to work,
the Union filed the charge in Case 3–CA–13932, which al-
leged discrimination on the basis of Respondent’s refusal to
reinstate the strikers.
B. Refusal to Furnish Financial Information
1. Statements attributed to Melfi and Hoover; Union’s
demand for financial and cost data
The testimony is in sharp conflict as to whether cir-
cumstances existed which entitled the Union to inspect Re-
spondent’s financial records. The General Counsel attempted
to prove that Nicholas Melfi made statements during the ne-
gotiations indicating that Respondent was financially unable
to meet the Union’s economic demands. He adduced testi-
mony to the effect that Melfi repeatedly demanded extensive
concessions and asserted, whenever asked to explain why
these were necessary, that concessions were needed to meet
competition, that the Company could not afford to meet the
union demands and that the Company was losing money.
Similar statements are claimed to have been made by Hoover
at the final negotiating session. Prenatt testified that Melfi
emphasized the Respondent’s financial inability to meet the
union demands from the very beginning, commenting, with
a shake of the head, when he saw the union proposal, ‘‘Boy!
We’re not going to be able to afford this.’’
Prenatt testified that Melfi opened the first meeting by tak-
ing an hour to read a prepared statement in which he de-
clared ‘‘that he was there to bargain in good faith and that
the Company was losing money, that they could not afford
to meet our demands and that we had to be competitive with
the other—I think he said we had five other plants that were
nonunion plants, and to get down in line with them he had
to ask for concessions.’’ Prenatt responded that he had no
problem bargaining with respect to concessions, but Inter-
national policy required companies seeking concessions to
provide substantiation. He therefore asked permission to ex-
amine company financial records. Melfi refused on the
ground that the Company was ‘‘a family-owned business, his
private concern.’’ Prenatt asserted that this exchange was re-
peated, almost verbatim, many times throughout the four bar-
gaining sessions and on every occasion when Melfi was
pressed to explain the need for concessions. Prenatt empha-
sized that at each of the four meetings, Melfi (and at the
fourth, Melfi and Hoover) repeatedly made two distinct state-
ments: that the Company could not afford to meet the union
demands and that the Company was losing money. As an ex-
ample, he cited Melfi’s comment on the Union economic
proposals at the second meeting that ‘‘he couldn’t pay them,
the company was losing money, and I asked him to open up
the books again and he didn’t want to open up the books be-
cause the answer he gave me at that time was simply it was
a family owned concern and he wasn’t going to do
that. . . .’’ Prenatt assured Melfi that if he demonstrated that
the Company was in difficulty, the employees, many of
whom had worked at the East Syracuse plant for many years,
would give him whatever was needed to keep the plant open.
Melfi nevertheless adhered to his position that the Com-
pany’s financial records were private.
The fourth meeting began with the parties’ review of their
respective positions. Knowles testified:
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. What was stated with respect to what the com-
pany position was?
A. The company was claiming that they were in bad
economic shape, they couldn’t afford to pay the union’s
demands, they had to have the give-backs. And in re-
sponse to a question that they would not open their
books, as they had stated before.
Bobby Marshall, a member of the employees’ negotiating
committee, testified that Melfi repeated the formula at every
meeting, and during discussion of practically every item of
the contract, and that Hoover repeated it at the fourth meet-
ing. He claimed it was repeated each and every time Prenatt
asked for the books to be opened up. Also, according to
Marshall, Melfi used the word ‘‘final’’ rather than ‘‘best’’ in
his ultimatum at the end of the fourth meeting, and refused
Prenatt’s request for a 1-year extension of the expiring agree-
ment.
In an affidavit, Marshall stated:
We started going over the proposal item by item. For
example, when we asked about the 40 hours of work
before we got time and a half, Mr. Melfi said that he
needed it, he had to drop us to compete with his com-
petitors. He was crying poverty and economy. After
this kept being said time and again—maybe halfway
through. George Prenatt . . . asked Melfi to open up
the books to show where you need concessions and we
would see what we could do. Mr. Melfi gave a flat out
no. He said it was a family owned business, it was a
private company and he didn’t have to open his books.
Melfi, on the other hand, testified that he read his prepared
opening statement at the beginning of the first meeting ver-
batim from a prepared memorandum which set out Respond-
ent’s position succinctly: competitive new products had cut
into the market and Respondent faced intense competition
from several nonunion concrete pipe producers who operated
with low labor costs and freedom from union contractual re-
straints. He formulated the basis for his negotiating demands
as follows: ‘‘To survive in today’s market we have got to
be able to be competitive, and to be competitive, wage rates
must be lowered.’’ He testified that this was the position to
which he adhered throughout the four negotiating sessions.
While he conceded that his opening remarks may have con-
tained some comments which did not appear in the memo-
randum, he denied emphatically that at any time he said that
the Company could not afford to meet the union demands or
that the Company was losing money.
I attach great significance, however, to the fact that the
union demand actually embraced both a request for financial
disclosure of a general nature and a request for data relating
to labor costs as they affected Respondent’s cost of produc-
tion. Prenatt had explicitly based his demand for access to
Respondent’s books on a policy of the International requiring
financial disclosure in all negotiations in which the employer
demanded concessions. Two days after the strike com-
menced, the Union filed an unfair labor practice charge here-
in alleging failure to furnish information. In settlement of
that proceeding, Respondent submitted consolidated profit-
and-loss statements for 1985 and 1986. The Union rejected
the data submitted, consisting of profit-and-loss statements,
on two grounds, that they were not certified and that the sup-
porting cost data had not been supplied. There is no question
but that Prenatt, in compliance with International policy, had
demanded information which was primarily relevant to the
question of the need for concessions on the basis of labor
costs. Thus, whether or not Melfi and Hoover made any
statements indicating that the Company was in financial dis-
tress, production of cost data by Respondent was required.
2. Findings
It is a striking fact that the recitations by the General
Counsel’s witnesses of the remarks attributed to Melfi and
Hoover were uniform and consistent, while their testimony
varied markedly on other aspects of the case. For example,
they differed as to whether Melfi termed his last proposal his
‘‘best’’ or his ‘‘final’’ offer, on the length of the period for
which the Union requested a contract extension, the point of
time in the fourth meeting at which the request was made,
who made the request on behalf of the Union, and whether
Melfi repeated the statement about the Company’s financial
inability to meet union demands at any time during the sec-
ond meeting. They also contradicted each other. For exam-
ple, Prenatt testified that Melfi did not repeat the formula
(concessions required to meet competition) during the second
meeting, while Bobby Marshall testified that he did.
Prenatt’s testimony was marked by a tendency to furnish
answers which were unresponsive, evasive, implausible, and
irrelevant. For example, he asserted that he could not recall
what he had said at a meeting with the Federal mediator on
June 25 that provoked Melfi to call him a liar, suggesting
that Melfi’s outburst had not resulted from his attribution of
remarks to Melfi regarding the Company’s financial condi-
tion, though the context indicated that that was clearly the
cause. He testified that he could not, and therefore did not,
keep notes of the meeting with the Federal mediator because
it was not his meeting and that he therefore could not sub-
stantiate his claim that Melfi told the mediator that the Com-
pany could not afford the union proposals, a contention
which remains uncorroborated either by his notes or by testi-
mony from other members of the union negotiating com-
mittee who attended the meeting with the mediator. Another
example is his assertion that the second meeting, held on
March 16, lasted 2 hours, while Hoover testified, credibly,
that it lasted between 5 and 6 hours and broke up at mid-
night.
Prenatt’s testimony was inconsistent in some respects. He
testified initially that the first hour of the first meeting was
consumed by Melfi’s reading of an opening statement; later
he conceded that it took Melfi a somewhat lesser period of
time to read it. At one point in his testimony, he flatly de-
nied that Melfi called him a liar because he told the Federal
mediator that Melfi said the Company was losing money and
could not afford to pay, having, as noted above, had dif-
ficulty remembering why Melfi did so; later he conceded that
that had been the reason for Melfi’s outburst. In his initial
account of the fourth meeting, Prenatt did not mention any
request for an examination of Respondent’s books, but in re-
sponse to a question which I put to him, he testified that he
made the request three or four times during that meeting and,
over the course of all of the meetings, repeated the request
some 20 times.
Prenatt’s testimony on key points is not supported by his
meeting notes or by accounts he gave in affidavits dated
159CONCRETE PIPE & PRODUCTS CORP.
March 30 and April 1 which he furnished to a Board investi-
gator. These quote Melfi as making statements in line with
the statements which Melfi and Hoover concede having
made, with one unimpressive exception. The affidavit dated
March 30 states:
At the outset Melfi stated that the company intended to
bargain in good faith. He went on to say there are a
lot of non-union plants doing the same work as we do
and we have to compete. They pay lower wages and
less benefits. We need concessions. I responded that it
was the union’s position and International’s policy that
if and when any employer is in need of concessions, we
see no problem in that; that the Steelworkers have dem-
onstrated to the steel industry and many small employ-
ers that if they are willing to open up their books to
the people from Pittsburgh and they see that there is a
need for concessions you will get them the same as the
rest have gotten them. His reply was that this was a
family-owned business and we will not not open our
books up. I said that this doesn’t seem reasonable: that
if you’re losing money, let us see the books. He again
stated that they definitely would not open up their
books. We then presented Mr. Melfi with our non-
economic proposals, copy attached.
A supplemental affidavit by Prenatt, sworn to April 1, re-
counts the discussion on the wage and benefit package, in-
cluding medical insurance, for the class A and class B em-
ployees. Prenatt states:
I said you open up your books to our people in Pitts-
burgh and if your books substantiate that you need re-
lief you’ll get the same consideration as we gave the
big basic steel plants—we gave them concessions three
different times to keep the plants open and save jobs.
I went on to mention that there were also many small
plants that we helped save. . . . Again he repeats that
it’s a privately owned concern and they were not gonna
open up their books.
When Prenatt asked Melfi why he wanted to delete med-
ical coverage after layoff, the answer was still restricted to
the need to be competitive:
I said if your answer is to be competitive then open up
the books. His answer to that again was no.
In the discussion of sick days, according to the affidavit:
He said his competitors didn’t have them, it was a bur-
den on him. Then again I said if you say you’re losing
money open your books. He said that he was not going
to open the books.
Not until he describes the fourth meeting does Prenatt
quote any statement by company representatives indicating
financial hardship. Up to that point the descriptions or
quotations of all previous discussions of financial disclosure
mentioned in the affidavit showed that references to financial
hardship were made by Prenatt himself, not by Melfi. In the
supplemental affidavit, Prenatt asserted that at about 5:30
p.m. in the fourth meeting Melfi and Hoover had a caucus,
and then Hoover spoke: ‘‘The lawyer opens by saying that
we gave you our final offer, we are in bad financial shape.
You can take it or leave it.’’
Attached to Prenatt’s supplemental affidavit are notes
signed by him and dated March 20 and 30, which quote ‘‘the
company’’ to the following effect: ‘‘Company walked out on
us at 6:00 p.m. They said that’s our final offer, take it or
leave it. Go out and organize our competitors.’’
A statement to the following effect appears on page 10 of
Prenatt’s supplemental affidavit:
Nick’s comments are taken down in the attached notes
of Dick Knowles—‘‘bad economic shape, can’t af-
ford—won’t open up books.’’ The union then asked for
a caucus. We discussed the fact that the Company
wouldn’t give us facts or figures—kept saying bad
times, losing money, can’t afford—no proof given.
Prenatt’s notes present troublesome questions. Prenatt testi-
fied that at the fourth meeting, each time Melfi said that
competitors were not paying their employees according to
the scale the Union was demanding, he added that the Com-
pany had to be competitve, could not afford it, and was los-
ing money. Though the meeting lasted 5-1/2 hours, Prenatt,
in his supplemental affidavit, made no mention of economic
hardship until an extremely late point in the affidavit, and
then only refers to Knowles’ meeting notes (not his) and the
statement which he attributes to Hoover.
The fact that the affidavits recite statements as having
been made, such as they are, is not at all persuasive on the
proposition that they were made; they are in that regard noth-
ing more than self-serving statements. However, the affida-
vits undermined Prenatt’s credibility. They were patently
needed to elicit his testimony and it seemed clear to me that
he could not have testified without reference to them. And
what is omitted from the affidavits speaks volumes. With the
solitary exception of the statement which he attributes to
Hoover, Prenatt did not, either in his notes or in his affida-
vits, ascribe an explicit statement that the Company was hav-
ing bad times, losing money, or could not afford to meet
union demands, to any specific person, Melfi or Hoover or
Vanderpool, nor does he assert that such statements were
made at any specific times, in any specific meetings, or in
response to any specific demands or statements by the union
negotiators.
Prenatt insisted that the statement by Melfi about losing
money, which does not appear in his affidavit, was contained
somewhere in his meeting notes, but it is not there. What the
notes of the first meeting do contain are references to discus-
sion of work hours, holidays, seniority, safety and health
matters, grievance procedure, vacations, and numerous other
matters and details within these categories, conveying a pic-
ture at variance with Prenatt’s assertion that it was a perfunc-
tory introductory meeting. He was vague, on cross-examina-
tion, as to what was discussed in the first meeting, in spite
of the notes. But he asserted that his meeting notes contained
everything of importance, because it was his practice to set
down the items that were important. That would suggest that
inasmuch as the notes do not indicate that any statement was
made by Melfi about economic hardship in the course of the
2 hours that the first meeting lasted, and inasmuch as any
such statement would seem to have been sufficiently impor-
tant to be included in his notes if it had, in fact, been made,
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that no such statements were made. I do not credit Prenatt’s
explanation that he did not always note down such state-
ments by Melfi because Melfi was always saying the same
thing. Not only is that implausible, considering the impor-
tance of such an utterance, but the argument has no standing
in a situation where there is not a single instance, other than
the Hoover statement, in any of the four meetings, of the re-
marks being set down with specificity and attributed to a par-
ticular person at a particular point in the meeting in either
his meeting notes or his affidavits. The fact that the affida-
vits were made less than 2 weeks after the last meeting un-
derscores the significance of the omission.
The Union’s notes of the meeting on March 20 contain a
description of Respondent’s response to the Union during
discussion of its demand for wages increases which on its
face indicates that it should not be credited: ‘‘Can’t pay and
are losing money. Union answer, open up your books. Com-
pany says no.’’
There is a reference to inability to pay and losing money,
but without attribution, though the Respondent was rep-
resented at this meeting by Melfi, Vanderpool, and Hoover.
There is then a reference to a purported statement by the
‘‘company’’ that it would not open up the books, again with-
out attribution, and also seemingly in a vacuum, because
there is no reference to anyone having demanded access to
the books. The Union is referred to as quoting Melfi’s re-
marks about ‘‘you can’t afford to pay and . . . you’re losing
money and got to be competitive.’’ But that is the Union
talking, not Melfi. The Company’s statement on return from
the 5:30 p.m. caucus is stated to have been as follows:
Company returned. Their statement was we gave you
our final offer we are in bad financial shape and can’t
afford it take it or leave it.
Knowles’ notes of the meeting of March 20 were attached
to an affidavit which he gave to a Board investigator on
April 14. In it, he stated that his recollection of the opening
part of the meeting was as follows:
After some initial remarks between George and Nick,
George asked the Company to open their books. Nick
said that as he had stated before, he wouldn’t open the
books; I believe the lawyer said something about them
being a private company and their books not being
open to review. That’s my recollection of the opening
part of the meeting.
In describing the circumstances of the presentation of the
Company’s ‘‘best offer,’’ Knowles quoted statements as to
financial hardship in such a fashion as almost to amount to
a disclaimer of their having been made:
Nick said that this is our best offer. I told you that we
are in deep financial shape or words to that effect. I
said that you put back on the table things that were off.
[Emphasis added.]
Not only does Knowles fail to quote these critical remarks
with specificity, it appears that Knowles did not respond to
Melfi by demanding an inspection of the books, which would
have been the only appropriate response to such a remark by
Melfi. Instead, he reverted to matters Melfi wanted to discuss
again and which the Union had considered settled. Such a re-
sponse leads me to conclude that Knowles attributed no im-
portance to any statement Melfi made regarding the financial
condition of the Company at the hearing, for the simple rea-
son that the only statements made were those Melfi admits
having made.
Knowles described another nonsequitur:
When they came back in, Nick said that they gave us
their final offer, repeated that they were in bad financial
shape, that they couldn’t afford the situation we’re fac-
ing. The attitude he expressed was a take-it-or-leave-it
I don’t recall if he actually said that. He went on with
like a small speech saying that they couldn’t compete
with their competitors or something along that line and
they have to have these concessions or their requests.
Then George broke in and starting talking about safety
and health conditions. Some committee members also
broke in telling the Company they weren’t being up
front and honest. I believe Coleman said that he’d
worked there 30 years and why were you doing this.
There were comments that the company really didn’t
want a contract. [Emphasis added.]
Conspicuously absent from this exchange is any demand
for inspection of the Company’s financial records. Despite
Prenatt’s contention that he asked for inspection times during
the course of the four meetings, doing so every time the
question of concessions came up, no demand ever seems to
have been made on those occasions when Melfi purportedly
said the Company was in bad financial shape, and I regard
that as an indication that Melfi did not say the Company was
in bad shape.
Knowles makes an assertion in his affidavit that he
‘‘jumped in and gave a speech’’ about the fact that time was
still left to negotiate and the fact that the Company was
claiming inability to pay but refusing to furnish facts and fig-
ures, and he refers to his notes of the meeting. This account,
like so much of the other testimony, lacks specificity and the
ring of truth. In these notes, after reviewing what was agreed
to and what was still open, Knowles states that, ‘‘Company
stated in bad economic shape can’t afford what is being
asked by Union, must have give backs. Won’t open books
or financial records as stated before.’’ (Emphasis added.)
Later, Knowles’ notes indicate the exchange described in his
affidavit and he quotes himself as saying, in his own re-
marks, that the Company had been claiming inability to pay
and requesting concessions without providing facts or figures
to support its claims.
I seriously doubt the veractiy of the meeting notes which
were purportedly made to memorialize events at the fourth
meeting and I am deeply suspicious of the paucity of
quotation of remarks by Melfi and Hoover which would have
had to have been recognized, had they actually been made,
as being of major importance. What little appears in the
notes suffers from lack of specific attribution to one of the
company representatives.
Knowles’ testimony was not credible. He testified, back-
wards, that Melfi made statements of financial incapacity and
that they were made in response to ‘‘a question that they
would not open their books.’’ The testimony really does not
make sense; if asked why he refused to open up the books,
161CONCRETE PIPE & PRODUCTS CORP.
Melfi was hardly likely to say it was because of economic
hardship. Knowles was unable to testify without substantial
assistance from the counsel for the General Counsel regard-
ing the number of times Melfi said he needed concessions
because of the Company’s poor financial shape. He finally
decided that Melfi said it between three and five times. His
chronology of events was also confused, so much so that at
one point he actually testified that the Union offered the
Company an extension of the contract in order to give the
Union a chance to examine the financial data—though the
Company was still refusing to furnish any financial data.
Knowles quoted Melfi, at the end, as saying: ‘‘I told you that
I couldn’t afford it, couldn’t afford the union’s demands,
we’re in bad economic shape and take it or leave it.’’ He
does not explain how, after such a take-it-or-leave-it ulti-
matum, it came about that there then ensued a discussion
among Prenatt, Melfi and the negotiating committee ‘‘con-
cerning safety and health.’’ (I note, in passing, that Knowles
thus places the utterance of the ‘‘best’’ offer at a point in
time considerably before the end of the fourth meeting, con-
trary to the testimony of Prenatt and Marshall.) Knowles also
quoted Hoover as saying, ‘‘We told you we are in bad eco-
nomic shape, take it or leave it. Now you can go out and
organize our competitors.’’ Yet, these statements are not set
forth in an affidavit which Knowles furnished to a Board in-
vestigator. Then, in describing the meeting of March 20, he
said only that
After some initial remarks between George Prenatt and
Nick Melfi, George asked the Company to open their
books. Nick said that as he had stated before, he
wouldn’t open the books; I believe the lawyer Hoover
said something about them being a private company
and their books not being open to review. That’s my
recollection of the opening part of the meeting.
Knowles’ notes appended to his affidavit attribute signifi-
cant statements regarding financial condition to Respondent,
but these do not describe what happened in a negotiating ses-
sion, but what happened in a caucus of the union negotiators.
In that caucus, somebody reported: ‘‘Company won’t give us
facts or figures kept saying bad times, losing money, can’t
afford—no proof given.’’ The caucus note does not say who
said that to whom during the caucus, or whether the remarks
were attributed to Melfi or Hoover or not attributed at all.
Most of Knowles’ notes relate to the caucuses, not to the ne-
gotiations. There is no entry in his meeting notes attributing
to either Melfi or Hoover, specifically, at any time during the
fourth meeting, a specific statement along that line.
I note further that according to Knowles’ affidavit, Melfi
had presented the last offer made by the Company during the
negotiations, toward the end of the fourth meeting, with the
statement, ‘‘This is our best offer.’’ In the affidavit,
Knowles’ stated that he could not recall if Melfi actually said
‘‘take it or leave it.’’ At the hearing, he testified that Melfi
did say it. Prenatt, however, attributed the remark to Hoover.
It is also noteworthy that Marshall does not support
Prenatt’s testimony that he demanded inspection of the books
practically from the beginning of the first meeting. Accord-
ing to Marshall, Prenatt made the demand halfway through
the meeting after Melfi made repeated assertions of poverty.
Marshall testified that Melfi used the words ‘‘poverty’’ and
‘‘economics,’’ but he was totally unable to supply the con-
text in which they had been used and finally asserted that
they had been used at the third meeting. His testimony re-
specting Melfi’s language was jumbled, confused and incred-
ible. He said he told that to the Board investigator, but his
affidavit does not quote Melfi’s exact statement. Marshall
contradicted himself as to the manner in which his affidavit
had been prepared, at one point testifying that he responded
to questions put to him by the Board investigator and assert-
ing, at another point, ‘‘I just told him what I had to say.’’
When Melfi testified, he admitted that at various points in
the negotiations he may have made statements in addition to
those reflected in Vanderpool’s notes or in the prepared text
of the opening remarks he made at the first session. His testi-
mony that he may have made further comments after he read
the opening statement ‘‘practically verbatim’’ does not afford
a basis for insinuating, as the General Counsel attempts to
do, that he either did, was likely to, or can be presumed to
have gone to the extent of making statements regarding the
Company’s financial in ability to meet union demands. How-
ever, Melfi conceded that when he finished reading his open-
ing statement at the first meeting, Prenatt stated the policy
of the International to require examination of company books
in negotiations for concessions, and that the Company had to
be found to be losing money or to have other reasons for
concessions, thus further confirming that the poverty plea
was not the only basis for the Union’s demand for financial
information.
3. Conclusion
I do not credit the testimony of Prenatt, Marshall, and
Knowles with respect to the more extreme statements of fi-
nancial disability which they have attributed to Melfi and
Hoover. Their attributions of the critical statements are defi-
cient by reason of their vagueness and lack of specificity. Se-
rious problems of inconsistency are inherent in their testi-
mony and in the contents of their affidavits. I do not believe
that on each and every occasion when concessions were
mentioned, the Union demanded to know the reason and
Melfi, in a knee-jerk reflex action set forth, invariably in the
same language, stated that he had to get wages in line with
his competition, he could not afford to pay the union de-
mands and the Company was losing money. The fact that
Melfi asked for concessions but refused to open the books
when Prenatt asked him to prove he needed them does not
automatically translate into a plea of financial hardship. The
testimony that he repeatedly recited a set formula every time
the subject of concessions was discussed, and that he even
used the word ‘‘poverty,’’ is something which I find incred-
ible, at least as related by these witnesses.
Even though, on the basis of all the testimony and on the
basis of the demeanor of the witnesses, I do not find that
Melfi and Hoover made statements that the Company could
not afford to meet union demands and was in serious finan-
cial difficulty, on the basis of my acceptance of their version
of what they said about the reason why concessions were
needed I must find that a violation of the Act was commit-
ted. In the form in which Melfi quoted it, the ability to com-
pete in the market, as the market is presently constituted, was
limited to the ability of the Company to survive. Expression
of a desire to improve ability to compete can be made for
more than one objective: as a profit incentive or for the pur-
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Kennedy’s letter of July 21 apparently was an attachment to an
affidavit given to a Board investigator by Berger. Respondent’s
counsel has complained of impropriety on the part of the General
Counsel because the letter was not attached to Berger’s affidavit
when it was furnished to counsel for his review prior to his cross-
examination of Berger. I find no impropriety on the part of the coun-
sel for the General Counsel, who had promptly turned over the affi-
davit from from the file, in the form in which he had received it
from prior counsel in charge of the case. When Respondent’s coun-
sel read the affidavit and became aware that there had been an at-
tachment to it, and called for its production, it was located and pro-
duced by counsel for the General Counsel. There was no significant
delay, no prejudice, and no impropriety.
pose of surviving, which is the one for which Prenatt asserts
it was made. Melfi conceded that in his own testimony: he
told the Union at the outset that he had to improve his ability
to compete in order to survive, thus linking the Company’s
future as a viable business concern to the granting of conces-
sions. It is not even important whether he said it repeatedly
during the meetings. Having said it once, at the very outset
of the negotiating sessions, Melfi did not have to use the
word again. Every time thereafter that he asserted that reduc-
tions in wages and benefits were needed in order to enable
the Company better to compete, the threat to the Company’s
survival was automatically incorporated into his utterance.
He made the point right at the outset.
I conclude that Respondent was under an obligation to
produce sufficient financial information to enable the union
properly to represent the employees’ interests in the contract
negotiations by making an intelligent assessment of the Em-
ployer’s need for concessions and the potential need to revise
its wage demands. Melfi and Hoover concede that Prenatt
and other union negotiators requested examination of the
Company’s books in connection with Melfi’s demands for
concessions. Hoover testified that Knowles, for example, in
the course of making a proposal regarding wages toward the
end of the final meeting on March 20, told Melfi and Hoover
‘‘that the company was asking for a lot and that he felt that
the company should open their books, and that if there was
a strike that it would, the union would consider it to be an
unfair labor practice strike.’’ According to Hoover, Prenatt’s
request for the books was on the same basis: ‘‘I remember
Mr. Prenatt saying that, ‘You want cuts, you ought to open
your books.’ And I remember Mr. Knowles saying, ‘You’re
asking for a lot. You ought to open your books.’ I don’t re-
call that it was tied to, ‘You are losing money.’’’
I do not believe there can be any doubt that Melfi well
understood that concessions could not be granted without fi-
nancial disclosure and he knew that the information sought
by the Union related to labor costs. Prenatt cited the policy
of the International in response to Melfi’s lengthy opening
statement. Later events show that this remained an important
requirement of the Union throughout. Edward Ghearing, a
union research economist, testified that in May or early June,
he had telephone discussions with Hoover in which it was
agreed that a profit-and-loss statement audited by an outside
auditor would be provided along with the supporting cost
data. Ghearing testified that after he reviewed the material
Hoover submitted, he telephoned Hoover and told him that
the information furnished was not in accordance with the
agreement, because it was not prepared by an outside auditor
and because it lacked supporting cost details. Hoover con-
ceded that he started his conversation with Ghearing by say-
ing that income tax records were not relevant because a con-
solidated income tax return had been filed and Ghearing
agreed with him. Hoover’s testimony makes it obvious that
Prenatt was demanding access to financial records for rea-
sons other than the possibility that the Company was losing
money. The information he needed was different, but no less
essential. See Harvstone Mfg. Corp., 272 NLRB 939 (1984);
Hiney Printing Co., 262 NLRB 157 (1982), enfd. 733 F.2d
1170 (6th Cir. 1984).
In Ghearing’s absence, Paul Kennedy, another staff ana-
lyst, offered to obtain comparative pay data in the industry,
but he was not requested to make an analysis by Mickey
Berger, who had replaced Prenatt as the union staff rep-
resentative. Hoover has pointed to this circumstance as an in-
dication that the Union sat on the matter until after the
Union’s demand for reinstatement of the strikers was refused,
and only then considered it a ground for an unfair labor prac-
tice charge. However, on July 21, while Ghearing was away
on vacation, Kennedy sent Berger a lengthy assessment of
the financial condition of Respondent on which the Union
could have acted if the Company’s overall financial condi-
tion had been its only concern. It lacked the cost data, how-
ever, and although the Union did not then make an issue of
that omission, that data had been requested by Ghearing and
the failure to supply it was one of the reasons he gave for
considering the informational submission inadequate. Pat-
ently, its omission left the union negotiators in a position in
which they could not negotiate intelligently. (I note, in addi-
tion, that Berger testified that Kennedy’s letter was intended
to be informational and not for use in the negotiations, a lim-
itation that is consistent with the request for, and the failure
to receive, cost data.)4
(I note also that, if general financial disclosure had been
the Union’s only need, the data presented was adequate to
enable the Union to make a decision whether or not to grant
concessions. Kennedy reported to the local that the returns
on the sales dollar were down in 1986, but nevertheless the
returns on the sales dollar were ‘‘very respectable.’’ He con-
cluded, ‘‘It would appear that this Company does not suffer
an economic disadvantage as far as employment costs are
concerned, when compared tothe majority of its competi-
tors.’’ The Union did not need to have the statement audited
in order to perform its function as the representative of the
employees. It demonstrates that the Union’s concern was not
with overall financial condition of Respondent, but with eco-
nomic disadvantage claimed by Respondent on the basis of
cost factors.)
The Respondent’s adamant demand for steep concessions
made it necessary for the Union to determine whether its
own bargaining demands were reasonable, whether those of
the Respondent fairly reflected the needs of the Respondent,
and whether it was therefore in the best interests of the em-
ployees in the bargaining unit which the Union represented
to agree upon concessions and forgo wage increases. Its de-
mands for access to financial data were within the well-set-
tled rules that any labor union is entitled to receive from an
employer information relevant and reasonably necessary to
the proper performance of its duties in negotiating and ad-
ministering collective-bargaining agreements in an intelligent
manner, which information need only be probably or poten-
tially relevant and useful (utility and pertinency to be deter-
163CONCRETE PIPE & PRODUCTS CORP.
mined under a liberal discovery-type standard, relevance
being presumed as to information requests regarding unit
personnel). NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956);
Wright Aeronautical Division, 145 NLRB 152 (1963), enfd.
347 F.2d 61 (3d Cir. 1965); Westinghouse Electric Corp.,
239 NLRB 106 (1978), modified and enfd. 648 F.2d 18
(D.C. Cir. 1980). It is noteworthy that even when relevance
must be demonstrated, it is sufficiently established by a
showing of probable need for the information requested in
the particular circumstances. See Safeway Stores, 252 NLRB
1323 (1980), enfd. 691 F.2d 953 (10th Cir. 1982); General
Motors Corp., 243 NLRB 186 (1979), modified and enfd.
648 F.2d 18 (D.C. Cir. 1980); Bendix Corp., 242 NLRB
1005 (1979).
Though the Union’s demand in this case met these require-
ments, the only response Melfi ever made to the Union’s oft-
repeated requests was that the Company was a family owned
business and company policy precluded disclosure of the fi-
nancial records. In the circumstances, that response was inad-
equate because, the demand having been proper, it was in-
cumbent upon Respondent either to provide the information
or set forth an adequate reason why it was unable to do so
(not why it did not want to do so). Kroger Co., 226 NLRB
512, 513 (1976).
The profit-and-loss statement which Respondent finally
provided on June 25 constituted an inadequate production of
information, but not for the reasons stated initially by the
Union. I have no problem with the fact that it was not cer-
tified, but with the fact that it did not give the Union infor-
mation which it needed to bargain intelligently. An employer
need not make information available in the precise form re-
quested, so long as it provides usable information within a
reasonable time and at at reasonable place. United Aircraft
Corp., 192 NLRB 382, 389 (1971), modified on other
grounds 534 F.2d 422 (2d Cir. 1975).
The principle is that assertion by an employer of financial
inability to meet union demands creates an issue of the em-
ployer’s financial condition and entitles the union to examine
its financial records in order to bargain knowledgeably. Re-
spondent mistakenly relies upon the obverse of that propo-
sition and argues that its meticulous avoidance of such state-
ments operated to excuse production of its books and
records. However, such production can be made necessary by
other statements or circumstances. The numerous decisions
that records must be produced when an employer asserts fi-
nancial hardship are, essentially, merely an application of the
general rule that a union is entitled to verify the employer’s
contentions to the extent that verification will facilitate col-
lective bargaining:
Good faith bargaining necessarily requires that claims
made by either bargainer should be honest claims. This
is true about an asserted inability to pay an increase in
wages. If such an argument is important enough to
present in the give and take of bargaining, it is impor-
tant enough to require some sort of proof of its accu-
racy. [NLRB v. Truitt Mfg. Co., 351 U.S. 152, 153
(1956).]
Any contention, therefore, which affects the manner in
which bargaining is conducted may entitle a party on either
side to verification. An employer may be required to produce
records that demonstrate the existence of the condition that
it claims actually exists. In International Telephone & Tele-
graph Co., 159 NLRB 1757 (1966), enfd. in pertinent part
382 F.2d 366 (3d Cir. 1967), cert. denied 389 U.S. 1039
(1968), an employer claiming that the wage scale handi-
capped its bidding was required to substantiate its claim by
making available the records that would have shown that
particular fact (159 NLRB at 1790). In Empire Terminal
Warehouse Co., 151 NLRB 1359 (1965), enfd. 355 F.2d 842
(D.C. Cir. 1966), the employer told the union that its busi-
ness was lucrative and profitable but that the union’s de-
mands put it at a competitive disadvantage. Economic hard-
ship was not suggested either directly or indirectly. It sup-
plied the union with an industrywide wage survey. The
union’s demand for general access to the company’s finan-
cial records was denied on the ground that the employer had
proved its point by supplying the wage survey. See also Ad-
vertisers Mfg. Co., 275 NLRB 100 (1985), and Atlanta Hil-
ton & Tower, 271 NLRB 1600 (1984), holding that no par-
ticular language is needed to express inability to pay, but that
a finding that it had been expressed had to be based on
words and conduct which were specific enough to convey
such a meaning.
Information that is pertinent to a particular union purpose
must be furnished. What has to be furnished depends on the
need. In a wide variety of cases, pertinent records showing
needed information of all sorts has been directed. See
Doubarn Sheet Metal, 243 NLRB 821 (1979) (data pertinent
to single-employer relationship between employer and an-
other company); NLRB v. Leonard B. Hebert Jr. & Co., 259
NLRB 881 (1981), enfd. 696 F.2d 1120 (5th Cir. 1983), and
Associated General Contractors of California, 242 NLRB
891 (1979), modified on other grounds 633 F.2d 766 (9th
Cir. 1980) (information relating to persons outside the bar-
gaining unit represented by the union); Boeing Co., 182
NLRB 121 (1970) (information needed to process grievances
by evaluating merits of claims); ACF Industries, 234 NLRB
1063 (1978), enfd. in relevant part 596 F.2d 1344, 1353 (8th
Cir. 1979) (employer laying off workers over a period of
time greater than 6 months required to produce list of sub-
contracts for the previous 2 years).
Respondent’s contention that the granting of the union de-
mands and the Union’s own failure to grant concessions
would affect Respondent’s ability to meet competition, even
though carefully phrased to avoid any implication of general
financial distress on the part of the Company, merely served
to restrict the extent of inspection of records to which the
Union might be entitled. It did not deprive the Union of the
right to demand verification of Respondent’s claim of inabil-
ity to compete because of the wage scale. The Union was
entitled to probe other cost factors to determine if Respond-
ent’s asserted competitive disadvantage arose from its labor
costs primarily, and that data was explicitly requested, ac-
cording to the uncontroverted testimony, the documentary
evidence and Melfi’s own admission.
Melfi, in his testimony, conceded that the Union could not
know for sure about the various levels of expense, or wheth-
er certain of its own or Respondent’s demands were too
steep, without seeing the books. The Union certainly had no
basis for determining if concessions were appropriate with
regard to wages. Melfi conceded that he wanted to compel
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union to take his word for the proposition that wages
were the cost item that had to be altered in order to enable
the company to compete effectively—which is precisely what
the Supreme Court, in NLRB v. Truitt Transportation Co.,
supra, said a union is not required to do.
Melfi’s assertion in the course of his testimony that the
Company’s other costs were lower than those of its competi-
tors was not a self-evident proposition and remained, at the
hearing, an open question; he was unable to quote any of the
prices paid by competitors so as to permit comparison with
those paid by Respondent and certainly never attempted to
do so during the negotiations, just as he never offered the
profit-and-loss statement to the Union during the negotia-
tions. This case falls under the general rule that an employer
must furnish the Union with the information it needs to do
its job. This is not a case restricted to the narrow rule of the
‘‘poverty plea’’ which, as I have noted, are basically one ap-
plication of the general rule to a specific circumstance.
Accordingly, I find that Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to furnish
the cost data to the Union.
C. Failure to Bargain in Good Faith
The indications that Melfi pursued a course of negotiation
designed to frustrate the attainment of a new collective-bar-
gaining agreement are numerous and substantial. He adhered
inflexibly and adamantly to extreme economic proposals
while refusing to afford the Union access to company records
which might have shown the necessity for them. His state-
ments and actions tended to denigrate the position of the
Union as the collective-bargaining representative of the em-
ployees. He presented manifestly unacceptable proposals, in-
sisted on concessions which would bring wages and benefits
down to the same level as those obtaining in nonunion com-
panies, demanded that the union negotiators place his last
proposal or ‘‘best offer’’ before the membership for a vote,
broke off negotiations after only four meetings, and unilater-
ally implemented his proposals after hiring nonunion replace-
ment workers.
1. The nature of Respondent’s proposals
Bargaining proposals which are so intrinsically unreason-
able or severe as to invite rejection, considered in the context
of all the other circumstances surrounding negotiations, may
be found to have been designed to frustrate, rather than ad-
vance, the negotiations. Melfi’s proposal to cut wages by
one-third is the type of bargaining proposal which might rea-
sonably be expected to be accompanied by a reasonable ex-
planation of its necessity and any verification that is avail-
able. Respondent’s explanation—that serious concessions
were needed in order to place Respondent’s own several fa-
cilities on a parity with each other and aall of them on parity
with nonunion shops—and Melfi’s refusal to grant access to
company records which supposedly justified such demands,
amount to a rejection of the collective-bargaining process
and denigration of the Union. At the same time, Melfi ad-
vanced other proposals which contributed relatively little, if
anything, to the enhancement of Respondent’s financial well-
being or competitive position but invited resentment and hos-
tility on the part of the employees, such as Respondent’s pro-
posal to eliminate coffee breaks for employees who, under
normal conditions, worked overtime into the early evening
hours, and Respondent’s bickering over matters such as mili-
tary leave, that actually were already settled by provisions of
law and therefore beyond the parties’ contractual discretion.
Consequently, I do not accept Melfi’s repeated assertions of
Respondent’s need to be competitive as having been put
forth in good faith.
2. Adamancy and breakoff of negotiations
At 6 p.m. on March 20, with 6 hours still remaining be-
fore expiration of the collective-bargaining agreement, Melfi
presented his ‘‘best offer’’ and demanded that the Union
present it to the employees for a vote. He and his lawyer
then left the meeting. They broke off the talks though Prenatt
and Knowles expressed their wish to continue negotiating,
progress had been made on many contract items, the Union
responded with counterproposals to the ‘‘best offer,’’ and
there was no apparent reason why talks could not continue.
Respondent’s ‘‘best offer’’ essentially repeated the basic de-
mands of its intractable bargaining position on wages and
benefits, which the Union had already said it could not ac-
cept without information regarding cost factors, and Re-
spondent then unilaterally proceeded to implement its pro-
posals despite the lack of an impasse in good-faith bar-
gaining.
The testimony regarding the termination of the fourth
meeting and the breakoff of the talks shows that the com-
pany would not budge on the concessions issue. It is con-
ceded by Melfi and Hoover that Melfi was determined to ne-
gotiate for concessions and would not enter into any agree-
ment which did not provide for them. Melfi testified that no
response was made to the Union’s final counterproposals at
the last meeting. As Hoover put it, ‘‘We saw nothing to be
gained based on the fact that the union was not willing to
enter into concessions, that’s true.’’ Hoover testified that
there had been no discussion among the company representa-
tives as to what wage level they would agree to as an accept-
able alternative to the concessions being demanded by the
Company. There was discussion only ‘‘that we wanted to ob-
tain substantial concessions.’’
Melfi and Hoover point to corresponding adamancy on the
part of the Union in pressing for wage increases to the very
end, but that is a point which cannot be considered independ-
ently of Respondent’s refusal to furnish the Union with the
information it needed to bargain in an intelligent fashion. If
the Union adhered to a bargaining position which in the
opinion of Melfi made an agreement impossible, then the
failure of the negotiations was preordained by Respondent’s
own failure to make cost data available to the Union.
There is nothing in the history of the first four sessions
to indicate that an agreement was out of reach except for Re-
spondent’s insistence upon a one-third wage reduction and
steep cuts in other benefits while refusing to give the Union
an informational basis on which to judge the reasonableness
of the demand. A great deal of progress had concededly been
made in the four sessions and counterproposals were being
made by both sides until the last moments of the fourth ses-
sion. Four meetings, during the course of which the Union
was deprived of needed and relevant information, cannot be
considered adequate time to respond to Respondent’s propos-
als and 10 or 15 minutes was certainly not time enough to
give adequate consideration to Melfi’s announcement of his
165CONCRETE PIPE & PRODUCTS CORP.
5 The contract provisions alluded to are art. III, §§ C–H; art. IV,
§§ A–E; art. V, §§ A, B, D–F, H, and J; art. IX, §§ C and D; art.
X, § A; art. XI, §§ B, E, F, and H; art. XIII, § A; art. XIV, §§ A
and B; and art. XVII, §§ B–D, F, and G.
intention to implement his proposals unilaterally. His doing
so therefore violated the Act. M. A. Harrison Mfg. Co., 253
NLRB 675, 676 (1980), enfd. 682 F.2d 580 (6th Cir. 1982).
At the first meeting, according to Melfi, the parties ex-
changed proposals, discussed all of the Union’s noneconomic
proposals and then reviewed a number of matters which in-
cluded pension, wages, severance pay, military leave, alcohol
and drug abuse, and safety and health issues. Agreement was
reached on matters such as job postings. Prenatt testified that
the meeting lasted 2 hours; that they merely exchanged pro-
posals, since Melfi wanted time to study the union proposals,
and that Melfi made a lengthy opening statement which took
an hour to read.
During the second and third meetings, proposals by both
sides relating to numerous provisions of the expiring contract
were adopted, modified, or withdrawn. These related to a
wide range of topics, including wage rates, concessions, re-
porting time, performance of unit work by supervisors,
interplant transfers, job postings, disputed discharges, funeral
leave, job classification rates, leaves of absence, vacation, ro-
tation of employees in various departments at vacation time,
compensable injury during working hours, early quitting time
for personal reasons, posted work schedules, miscellaneous
holiday provisions, seniority, grievance procedures, testing of
employees, prorated vacations, and quitting time on the dates
of the monthly union meetings.5 Discussion of the economic
proposals only began in earnest at the third meeting, the first
meeting having been introductory and the second having by
consent been devoted mainly to noneconomic items. But al-
though the meetings had demonstrated that both sides were
capable of agreement, concession and compromise on a wide
variety of matters, Melfi was prematurely fixing the conclu-
sion of the fourth meeting as the deadline for the discussions.
He announced that effective Monday, March 23, he would
implement his proposal to fix class A wages at $6.50 per
hour and class B wages at $6; would reduce the number of
holidays to seven; would bill 50 percent of the medical insur-
ance premiums to the employees beginning April 15; and
would reduce the number of sick days to 2, 1 every 6
months.
The second meeting lasted from 3 p.m. to midnight on
March 16. Melfi testified that the reason for the length of the
meeting was the parties’ willingness to continue as long as
they were able to, in view of the productive nature of the
session. A spirit of cooperation and compromise seemed to
exist with respect to most of the less important issues. Union
proposals on which agreement was reached included military
leave of absence. On company proposals, the union agreed
to delete double-time pay for Sunday work and the Company
agreed to withdraw a proposal for the reduction or elimi-
nation of Sunday pay and showup time. Agreement was
reached reducing the number of holidays. Other economic
issues were deferred to the third meeting. All noneconomic
items were covered, including probationary period, safety
shoes, grievance procedure response time, and job postings.
The Union agreed to a provision giving management more
flexibility in setting the holiday schedule. The Company and
the Union each agreed to a number of proposals of the other.
Using the existing contract as a frame of reference, agree-
ments were reached on the matters covered by article III,
§§ E, F, G, and H; article IV, §§ A–E; article VI, §§ A, B,
D, F, H, and J: article VI, § A; article IX, §§ C and D; article
XI, §§ E, F, and H; and article XVII, §§ C and G.
The third meeting started at 1:15 p.m. and ended at 6 p.m.
by prearrangement. The parties reviewed the remaining non-
economic issues and then proceeded to a discussion of
wages, employee classifications, and the pension plan. There
was ‘‘heavy discussion’’ of concessions, especially with re-
spect to the holiday and vacation sections. Melfi wanted six
holidays out and wanted to retain only winter holidays, when
the plant was shut down anyway. According to Melfi, he in-
creased the Company’s wage offer by 2 percent in the third
and fourth years of the proposed new contract. There were
a large number of matters agreed upon or regarding which
proposals by either side were withdrawn, relating to contract
article III, §§ C, D, and H; article V, §§ E and H; article X,
§ A; article XI, § B; article XIII, § A; article XIV, §§ A and
B; and article XVII, §§ B, D, and F. Agreements and with-
drawals embraced matters such as military leave, supervisory
work in emergencies, reduction in showup time, advance no-
tice of overtime work, funeral leave, vacation, disciplinary
action for absenteeism, and extra pay for breakfast and late-
hour work. According to Prenatt, however, the third meeting
was largely devoted to discussion of various items of con-
tract language that Melfi wanted removed, some of which the
Union agreed to take out. The Company withdrew some of
its demands and made counterproposals.
The fourth meeting, the only negotiating session attended
by Hoover, took place on Friday afternoon, March 20, and
lasted from 1 to 6 p.m. Both the Company and the Union
made counterproposals. Matters discussed included sick pay,
the number of holidays, and the classification chart. The
Company proposal, characterized by Melfi as the Respond-
ent’s ‘‘best offer,’’ provided for wage increases in the second
and third years of the contract. For Hoover’s convenience,
the collective-bargaining agreement was reviewed from be-
ginning to end, and the open items were noted. Prenatt read
his notes to Hoover to bring him up to date. Prenatt then
stated that the deep concessionary demands of the Company
required opening the books, and the Union would give the
Company the relief it was seeking. Melfi again recited that
it was against company policy to open the books and that
concessions were being sought because of the nonunion com-
petitors’ lower costs, which required Respondent to lower its
labor costs. (Later in the meeting, the matter was again
brought up by Richard Knowles.)
The Union insisted that the company proposal to change
the vacation schedule was still an open issue, and Prenatt ac-
cused Melfi of not bargaining in good faith and putting
things back on the table. It is contended that Melfi’s asser-
tion at the fourth meeting that certain matters, including va-
cation, were still open to negotiation shows bad-faith bar-
gaining, but this contention is not borne out by the testi-
mony. Melfi testified, uncontrovertedly, that there were no
negotiation rules or discussions of procedure for signing off
on anything agreed to and no rules that any agreement
reached was permanent and unchangeable.
According to Prenatt’s version of this meeting, Hoover did
most of the talking. The Union caucused four times to con-
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sider company proposals, but reaching an accommodation
was difficult in the face of repetitious verbiage from both
Melfi and Hoover to the effect that, ‘‘We can’t afford it.
We’re losing money.’’ Hoover said they could not afford it
and had to be competitive, were losing money and suggested
that the Union go out and organize Respondent’s competi-
tors. Hoover ultimately furnished the Union with a list of
several nonunion competitors. Prenatt testified that Melfi and
Hoover caucused between 5:30 and 6 p.m. and that upon
their return, Hoover made the following statement: ‘‘You’ve
got our final offer, you can take it or you can leave it, that
this company’s losing money, we can’t afford to pay your
benefits and we’ve got to be competitive and that’s it.’’ Ac-
cording to Prenatt, they refused to continue with a discussion
of safety matters and rejected a proposal by Knowles for an
extension of the contract, refusing even to look at an exten-
sion agreement which Knowles held out to them. (Prenatt
said the proffered extension agreement was for 30 days, but
it was for a year. In any event, neither Melfi nor Hoover
made any response to it.) They got up and left. Hoover testi-
fied that Melfi told Prenatt, ‘‘This is our best offer and we
hope that you will accept it.’’ When the Union responded by
making a counterproposal for substantial wage increases
Melfi declared it was not acceptable and that the Company
would implement certain parts of the Company’s proposal on
Monday morning, March 23, beginning with the proposed
pay cuts, the other items to follow later. At that point,
Knowles said he would agree to pick up some percentage of
the medical insurance costs, cut back sick days from 4 to 2,
and accept a wage increase in the next 3 years more mod-
erate than the one demanded by Prenatt. That did not suffice
to bring Melfi and Hoover back to the bargaining table.
While Melfi and Hoover dispute aspects of Prenatt’s and
Knowles’ accounts of the fourth meeting, especially testi-
mony that they made statements indicating that the Company
was in financial distress and that Hoover used the expression,
‘‘Take it or leave it,’’ their testimony is in accord with their
accounts of the meeting in several in important respects.
Melfi’s testimony did not go into detail respecting events at
the very end of the meeting, but Hoover’s testimony did.
Hoover conceded that the Union called attention to the fact
that the contract did not expire until midnight and wanted to
continue negotiations and confirmed Melfi’s testimony that
the Company did not respond. He attempted to avoid an ad-
mission that the Company had refused to continue negoti-
ating by clinging to verbiage to the effect that the Company
did not respond, but his testimony confirmed that the com-
pany negotiators had risen from the bargaining table and
were leaving the room. Their actions reflected the adamancy
of the Company and the surface nature of the bargaining, for
there is little question that the meeting ended because the
concessions demanded by Melfi were not being granted by
the Union. Melfi made no response to the union counter-
proposals. According to him, he told the union negotiators,
‘‘You have our best offer. I’d like to see you bring it back
to the membership and recommend its acceptance.’’ Melfi
testified that the Union simply came in with more proposals,
and at the very end of the meeting, Knowles proposed a 1-
year extension of the expiring contract, without any increase
in wages, to afford time to negotiate the new agreement. His
tone, as he gave that testimony, indicated his belief that in
coming back with more proposals, the Union was being in-
tractable. It was he who was being rigid and unbending.
Bargaining stopped because of Melfi’s own adamant ad-
herence to a bargaining demand to which the Union could
not consent in the absence of information which Respondent
refused to furnish. He suspended negotiations despite
Knowles’ warning that a strike would be considered an un-
fair labor practice strike. He planned and implemented dras-
tic changes and announced them at a point in time which
precluded meaningful negotiation. He therefore bargained in
bad faith and cannot be permitted to take advantage of a pur-
ported impasse which resulted from his own misconduct by
implementing the unilateral changes.
Thus, no impasse existed. The parties had held only four
meetings, had agreed on a number of items and had not ar-
rived at a point where it could reasonably be said that at the
moment there was no chance of an agreement, even on the
items regarding which Melfi had been adamant. Moreover, as
I find that Respondent engaged in surface bargaining, a find-
ing of impasse is automatically precluded. Melfi had an-
nounced his intention to implement his wage proposal de-
spite the fact that there was no impasse. Calling it an im-
passe cannot put the Respondent in the right at this point,
but in any event, Melfi cannot take advantage of whatever
it was, even if it is called an impasse, because it resulted
from his own misconduct. Wayne’s Olive Knoll Farms, 223
NLRB 265 (1976).
3. Denigration of the Union
In demanding that the Union present his ‘‘best offer’’ to
the membership, and by ignoring the Union’s wish to con-
tinue the negotiations in the time remaining, Melfi denigrated
the position of the Union as the authorized bargaining rep-
resentative of the employees. The extreme nature of the Re-
spondent’s wage and benefit package proposals and its ada-
mant adherence to them placed the Union in a difficult bar-
gaining position, made even more difficult by Respondent’s
failure to furnish financial information. Under the cir-
cumstances, I conclude that Respondent’s intention was to
frustrate the negotiations and unilaterally implement its wage
proposal. Melfi did not merely ask for wage and benefit con-
cessions. He demanded their reduction to a nonunion level
without meeting the Union’s demand for verification of the
need for such drastic action, thereby making rejection of his
bargaining proposals inevitable. However, even more than
that was involved.
The testimony of both Melfi and Hoover makes it clear
that Respondent’s intention was nothing less than the elimi-
nation of union influence on the wage structure. Melfi testi-
fied that concessions were a sine qua non of negotiations for
a new agreement; that his strategy was to lower labor costs,
improve quality and increase productivity. Most of his com-
petitors, he said, were nonunion, and, in addition to com-
peting with Respondent by manufacturing concrete pipe,
were manufacturing items capable of supplanting Respond-
ent’s product altogether, such as plastic pipe, corrugated
metal pipe and corrugated aluminum. He asserted that his
knowledge that his competitors had lower labor costs came
from his interviews of job applicants, his competitors’ bids
on jobs, what he learned at industrywide meetings informa-
tion supplied by the three trade associations to which he be-
longed, and information gleaned in the course of his normal
167CONCRETE PIPE & PRODUCTS CORP.
duties as Respondent’s president, overseeing sales, bids and
estimates on jobs. Hoover testified that he told Prenatt that
it was necessary for the Union to accept ‘‘the going rate.’’
As Hoover put it, they were to take the ‘‘going rate for this
kind of skills.’’ The remark can be interpreted only one way.
The ‘‘going rate’’ was obviously not the rate called for in
union-negotiated contracts, so Hoover could only have meant
for Prenatt to accept a nonunion going rate. He tried to avoid
admitting it. When pressed as to what he meant and whether
he was in effect telling the Union to agree to the vastly
lower nonunion rates paid in unorganized shops, Hoover
evaded the question by answering, ‘‘And I honestly can’t re-
member what I was trying to say here, sir.’’
The key to Melfi’s thinking is the wage differential forced
on Respondent by reason of its having been unionized, and
the need to return Respondent to equality of bidding power
with his competitors. To that end, he gave the Union the
names of several competitors who had outbid him in 1986.
In other words, he was insisting that equality be restored ei-
ther by unionizing the competition or by making Respondent
the equivalent of a nonunion shop. His offer of $6.50 per
hour for classification A and $6 per hour for classification
B was based on the nonunion wage rates paid in Respond-
ent’s other divisions, which were not unionized. In short, to
Melfi, meeting competition meant to go nonunion, either ac-
tually or practically.
Unable to negotiate the Union out of existence, he took
the practical approach and, as all of the evidence herein indi-
cates, promoted a strike and proceeded to hire nonunion re-
placement workers. There were 19 unit people on payroll at
the start of the strike. The company records showed that Re-
spondent continued to hire employees to do bargaining unit
work after July 30, when the Union made the offer to return
to work. The first employees hired after that date were hired
on August 3. Approximately 15 replacement workers were
hired.
David Guiffrida, a replacement worker hired in June, was
interviewed for his position by Timothy Vanderpool. He
quoted Vanderpool as promising him that the job would be
permanent because the strikers were not coming back and the
job was nonunion. He asked him, ‘‘Are we being hired non-
union or union?’’ In other words, ‘‘Is there a union for us
to apply membership?’’ And he said no.
Bob Weaver was identified by Guiffrida and by Melfi as
a foreman. Melfi testified that Weaver gave the employees
their day-to-day assignments, followed up to see that they
were performed and had some disciplinary authority, thus es-
tablishing his supervisory status. (Melfi later disclaimed
knowledge of whether Weaver had disciplinary authority. I
do not credit his disclaimer, inasmuch as Melfi, Vanderpool
and Weaver constituted the entire management and super-
vision.) He assured employees that the Union was ‘‘history’’
and would not be returning:
Q. Describe the conversation you had with Mr. Wea-
ver.
A. On a few occasions . . . either on break or lunch
or maybe before work, the question got brought up on
numerous occasions, once by myself and other times by
other employees, as far as the status with the union,
how stable were our jobs. And he repeatedly said,
‘‘Don’t worry, your jobs are permanent, the union
won’t be back.’’
. . . .
Q. Do you recall anything said about whether or not
when or at what time or condition the strikers would
be returned?
A. We were told that they would not be returned.
Q. Any statement made as why they would not be
back?
A. I don’t recall anything specific. It was just pretty
much generalized that they would not be back, we’re
going to continue with the crew we have, and ,
‘‘They’re history,’’ is one way that Mr. Weaver had put
it at one time.
. . . .
(By Mr. Newsome)
Q. Just state what he said?
A. What he said was over and over whenever it was
brought up was that, ‘‘You are permanent employees,
they will not be back. Do not worry about it. Do not
concern yourself that you’re going to be out on the
street.’’
Q. When he said they would not be back, who was
they?
A. The striking employees.
(By Mr. LaVaute)
Q. Mr. Guiffrida, do you recall talking with me last
night?
A. Yes, sir.
Q. Did you tell me last night that someone from the
company said they would never take the union guys
back?
A. Yes.
Q. Was that said to you by the company?
A. Not by the company, by Mr. Weaver.
Q. That’s who I mean, somebody?
A. I’m sorry.
JUDGE LAWRENCE: He said Mr. Weaver said it.
Q. When did he say that?
A. I don’t recall the date or conversation, but it was
one of the conversations that we all had as a group.
Q. There is no doubt in your mind that that’s the
phrase he used, ‘‘we would never take the union guys
back’’?
A. Yes.
None of Guiffrida’s testimony was controverted.
4. Desire to frustrate negotiations
Respondent’s refusal to furnish the financial records re-
quested by the Union, based on an insincere excuse, inevi-
tably tended to frustrate the negotiations. In view of the his-
tory of the first three meetings, Melfi appears to have had
no reason apart from his own adamancy to treat the fourth
meeting as the one at which an agreement had to be reached.
Nevertheless, that was patently his attitude. He presented the
company offer, and, according to him, ‘‘I stated it was the
best offer, company’s best offer.’’ In view of his insistence
that he made no mention of the Company’s financial condi-
tion, either then or at any other point in the fourth meeting
(nor for that matter in any of the other meetings) there is ab-
solutely nothing in the record to indicate on what basis he
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Counsel for the Charging Party moved to strike Hoover’s testi-
mony concerning conversations with Ghearing on the ground that
Hoover was acting in a dual capacity as attorney for Respondent and
a witness to events at issue. I reserved ruling on the motion until
the transcript was available, since Hoover had given testimony re-
specting his failure to anticipate that he might be called as a witness.
It is Hoover’s credibility, not the propriety of his action, that is perti-
nent to this proceeding. I perceive no respect in which Hoover’s ac-
tivity in the dual capacity of counsel and witness has affected his
credibility and I have, in any event, based credibility findings re-
specting matters in which his testimony conflicts with that of other
witnesses on the basis of other factors. Accordingly, the motion to
strike his testimony is denied.
expected the union negotiators to agree that the offer being
made was the ‘‘best offer’’ the Company could make. He
was compelling the Union to operate blindly, and it inevi-
tably did so, responding to his demand for concessions with
a counteroffer demanding an increase in wages of 40 cents
the first year, 35 cents the second year, and 30 cents the
third year, which by Knowles’ own admission reduced the
Union’s original demand, for an increase of 4-percent a year,
by about a nickel an hour. At another point, Knowles sug-
gested increases of 30 cents each year.
Melfi steadfastly refused access to the records with full
awareness that the Union could not agree to his demand for
concessions without access to the Company’s financial
records, conceding that Prenatt stated the International’s pol-
icy right after he read his opening statement at the first ses-
sion. Melfi’s response was simply to confront Prenatt with
his own policy, telling the union negotiators that the Com-
pany was a privately, family-owned concern ‘‘and it was
strictly against company policy to give anyone our books.’’
He adopted an inflexible position from which he never
wavered, even asserting, in the course of his testimony, that
company policy precluded showing financial records to
banks. By itself, that is utterly incredible, and and never
could become credible in view of the ease with which the
purported policy was abandoned in order to settle the first
unfair labor practice proceeding. Hoover testified that in two
telephone conversations on June 1 with Ghearing, he read
Ghearing a profit-and-loss statement for December 1986
which summarized the whole calendar year, but he did not
bother to extract a promise of confidentiality from Ghearing.
He professed to be unable to remember whether the subject
of confidentiality had even arisen. He did not object when
Ghearing suggested that he deliver the profit-and-loss state-
ment to Prenatt. He did not attempt to protect its confiden-
tiality when he delivered it to Berger on June 25. He gave
it to Berger on Berger’s assurance that the Union had signed
the settlement agreement, but the agreement has no provision
for preserving the confidentiality of the information.6
The Union’s bargaining position on the wage and benefit
package was obviously affected by the Respondent’s refusal
to grant access to its financial records. Hoover himself com-
plained that the Union’s final demands remained unreason-
able even at the very end. If they were, then, as I have point-
ed out, it was because of Respondent’s failure to give the
Union the information it needed to perform its function. The
financial records contained information which the Union
should have had in order to negotiate intelligently. But the
Union’s negotiating position was undoubtedly affected by
Respondent’s failure to divulge several other important items
of information. For example, Melfi testified that he never
discussed comparability of nonlabor costs with the Union.
Hoover testified that it was urged upon Prenatt that enabling
the Company to make competitive bids would ultimately re-
sult in the employees earning more; but though Hoover had
been advised by Respondent that such increased earnings
would result from the fact that the number of hours they
worked would increase from 60 to 100 percent of their work-
ing time, he never offered Prenatt any evidence that such an
increase in the number of hours worked was probable. Re-
spondent also, according to Hoover, represented to him that
the company had lower nonlabor costs at the Syracuse divi-
sion than in any of their other operations, but that informa-
tion was not disclosed to the Union. Melfi, whose authority
extends over the Company’s nonunion branches in Rochester,
Binghamton, and Buffalo, New York, was aware whether or
not nonlabor costs of those divisions were comparable to
those of the Syracuse branch and whether Syracuse’s labor
costs were really considerably higher because of the union
contract. It is a point he never took pains to demonstrate to
the Union. He knew, and conceded in his testimony, that the
Company’s financial records would have shown that it was
Syracuse’s labor costs that were the cause of the Company’s
losing out on bids because its bids were higher than those
of its competitors, but he never made records available to the
union negotiators so that they could see that.
Hoover conceded that no explanation was offered as to
why Melfi’s proposal was the Company’s ‘‘best proposal’’ or
why Knowles’ suggestion that the existing contract be ex-
tended was unacceptable. He conceded that they did not con-
sider offering an extension of the contract for some period
less than a year in response to Knowles’ offer of a year’s
extension and he conceded the reason as well: ‘‘We wanted
to get concessions. The only proposal that was ever made
about an extension was one for a year, and we were unwill-
ing—we didn’t consider offering an extension in response to
theirs, no, sir.’’
Hoover’s testimony makes it clear that he and Melfi know-
ingly permitted the union negotiators to operate under a mis-
apprehension of fact in believing that the Company was los-
ing money, and that they could not bargain on that suppo-
sition without verification, as a matter of ordinary prudence
and as a matter of International policy. Nothing was done to
enlighten them. The attitude of Hoover and Melfi was illus-
trated by Hoover’s testimony as to his understanding of what
Prenatt was referring to when he offered to ‘‘share the
pain.’’ Melfi and Hoover had greeted the offer with silence,
misleading the union negotiators into a deeper conviction
that Respondent was inserious financial difficulty and that
under rules imposed by the International they were required
to obtain verification. When asked about it at the hearing,
Hoover was evasive, suggesting that Prenatt’s remark must
have referred to the employees’ pay cut. I pointed out to him
that that was painful to the employees, not to the Company,
and asked him what he had thought Prenatt was was refer-
ring to as the pain. He replied:
I understand based on the context of the conversation
that if the company’s losing money, there’s a pain, and
the union would share some of that by taking less
money. That would help share the pain of the company
losing money, everybody would take less.
169CONCRETE PIPE & PRODUCTS CORP.
Though Prenatt’s remark was the kind that called for a re-
sponse, Hoover conceded that he did not reply to it. He nei-
ther confirmed nor denied the suspicions of the union nego-
tiators, but deliberately left them in the dark, adhering to
their original negotiating positions.
5. Other indications of surface bargaining
Hoover’s testimony provided several other indications that
Melfi had not been interested in facilitating or continuing ne-
gotiations on March 20 and that thereafter he had had no in-
terest in resuming them. Despite Hoover’s testimony that he
had been concerned that the talks were breaking off, his lack
of interest in continued negotiations is evident.
At the June 25 meeting with the Federal mediator, after
the agreement settling the unfair labor practice case was
signed and the profit-and-loss statement turned over, the me-
diator advised Hoover and Melfi that the Union wanted to
break off the talks. Hoover did not ask the mediator for the
reason and did not seek out any union representative to find
out why the meeting could not be continued; and though the
union representatives were still in the conference room when
he retrieved his belongings from it as he departed, he simply
shook hands with them. He testified that he could not re-
member if there was any conversation about the fact that the
meeting was not continuing. He has not asked the Union for
further meeting since then.
Melfi also abandoned or altered negotiating practices
which he had followed in prior years. Whereas in past years
the parties had continued their negotiations through the night
to reach agreement, on the occasion of the fourth meeting
Melfi refused to work past 6 p.m., refused to extend the life
of the current contract for any period and ended the meeting
in a contumacious manner which had been foreshadowed by
the way the first and third meetings had ended. The first
meeting was shortened by Melfi because he said he had to
check a couple of things at the plant; the third meeting ended
when he announced that his dinner was waiting at home; and
he ended the fourth with the announcement that the Com-
pany had made its best offer and that he thought the Union
should advise the membership to accept it, because if they
did not accept it, he was going to implement certain major
changes unialterally. The testimony is in conflict as to
whether anyone told the Union to ‘‘take it or leave it,’’ but
I think the record so adequately demonstrates that Hoover
and Melfi were of a frame of mind consonant with such a
remark that it is really unimportant whether they actually ar-
ticulated it.
(I do not consider as indications of surface bargaining the
facts that Respondent engaged security personnel, required
strikers to remove their property from lockers after they de-
manded reinstatement, and disagreed with the Union on
which matters still remained open for discussion as of March
20.)
In Reichhold Chemicals, 288 NLRB 69 (1988), the Board
listed some of the criteria for determining, on the basis of
overall conduct, whether an employer has bargained in good
faith. These included (1) readiness at all times to meet and
bargain; (2) attendance at all shceduled meetings; (3) fulfill-
ment of procedural obligations; (4) exchange of proposals;
(5) modification of proposals otherwise adhered to in order
to facilitiate agreement, i.e., movement on items; (6) commu-
nication with the mediator; (7) concessions; (8) agreement on
substantial items; (9) correspondence between proposals and
items in other union agreements or in earlier agreements;
(10) absence of improper conduct; and (11) absence of pro-
posals seeking to negate the Union’s fundamental representa-
tional role.
The evidence in this case establishes that Respondent
failed to meet at least seven of these criteria. It certainly did
not meet the requirements numbered 1, 5, and 7–11.
D. Refusal to Reinstate
1. The nature of the strike
On Saturday morning, March 21, the membership and the
negotiating committee, some 16 persons in all, met away
from the plant to review what had transpired at the 4 negoti-
ating sessions. Prenatt testified that he gave the members a
full report and that he told them ‘‘that we requested numer-
ous times for the company to open up their books and prove
that they were losing money so we could come back and rec-
ommend to you people to take the concessions.’’ Prenatt tes-
tified that he explained to them that it was International pol-
icy ‘‘that when you face deep contract concessions such as
we were facing here, that you have to have proof by the
company willing to open up their books, so that a technician
from Pittsburgh or the Pittsburgh people who have the exper-
tise in this area can verify that the company is losing
money.’’ The Respondent’s demands for concessions were
reviewed. Prenatt told them that ‘‘all he got from Nick Melfi
was we can’t afford to pay it, we’re losing money, we’ve got
to be competitive, we’ve got to have these things back.’’ He
testified, further:
I told the membership that numerous times during ne-
gotiations at all four meetings I requested him to open
up his books to give the people from Pittsburgh those
figures so they could make a determination, and every
time that I asked him that he refused me. . . . I told
them he refused to open up his books because he kept
giving me the same answer, ‘‘This is a family concern
and I’m not going to open them books up to you peo-
ple.’’
Bobby Marshall testified:
Q. At this meeting did any of the guys who were
there to vote, did any of the guys have anything to say
about the fact the company wasn’t opening the books?
A. Quite a few of them. They thought it was very
unfair because, see, in the first place nobody wanted to
go on strike. Everybody wanted to work and they feel
like if they had opened the books and showed them
they need the concession, then we would have went and
gave them most of this in order to still continue to go
to work and they were concerned about that. They
couldn’t understand why they didn’t want to open the
books to let them see that they really needed.
The Company’s last offer, which included Melfi’s deep
concessionary package, was put to a vote. Before the vote,
it was explained that rejection of the contract was equivalent
to a strike vote. The recommendation of the bargaining com-
mittee, in Prenatt’s words, ‘‘was to reject the final offer on
the grounds that he wouldn’t open up his books and they
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
couldn’t verify or justify that deep of concessions to the
membership.’’ The offer was unanimously rejected.
The members were in an angry mood before the vote. The
failure of Respondent to make the requested disclosure of the
records was a major element in fueling their indignation. I
note that their statements, as quoted by Prenatt, did not seem
to relate directly to disclosure. One remark was, ‘‘We don’t
know where this guy is coming from.’’ Another was,
‘‘We’re not back on the planation, Goddamn it, and we don’t
work down South any more. If we’re going to work for $6
an hour, that this is ridiculous.’’
He testified:
Q. Did they say anything about justifying such a
deep cut?
A. They asked me, ‘‘How do you know he’s telling
you the truth?’’ I said, ‘‘I don’t know if he’s telling me
the truth because he won’t open up the books.’’ That’s
all I could respond to them. They were hostile and they
were mad.
While concern for verification of Melfi’s purported re-
marks is not explicitly articulated in the quoted remarks of
the members, it is clearly expressed in Prenatt’s report to
them. Of course, it is conceivable that Prenatt’s report to the
membership was itself inaccurate; however, at that time rein-
statement was not an issue and I infer that Prenatt reported
the events of the negotations pretty much as they happened.
In that case, Prenatt would have reported Melfi’s opening
statement, his own repeated requests for access to the finan-
cial records of the Company and Melfi’s repeated refusals,
in accordance with my own findings as to what was said.
These were the facts confronting the membership. There is
no doubt, therefore, that the strike which began on March 23
was the direct result of Respondent’s having refused the re-
quested access to the records.
Since the failure to permit inspection of the company
records was an unfair labor practice which was one of the
elements of Respondent’s conduct which impelled me to
conclude that Respondent had engaged in surface bargaining,
the strike must be held to have been started as a direct result
of Respondent’s unfair labor practices and to have been pro-
longed by Respondent’s continued refusal to negotiate and its
failure to evince any interest in resuming the negotiations,
apparently being satisfied to continue operation with replace-
ment workers at nonunion wages.
The General Counsel also contends that it was prolonged
by other provocative conduct of the Respondent away from
the bargaining table which violated Section 8(a)(5) of the
Act. On August 3, the date of return specified in the Union’s
offer to return to work, the East Syracuse police chief con-
tacted Berger and there were police at the plant. The General
Counsel asserts that the involvement of the Syracuse police
at the behest of Respondent was unnecessary and provoca-
tive, inasmuch as the strike had been in progress for four
months without a single incident. The General Counsel also
cites Vanderpool’s insistence that personal property which
the strikers had left in their lockers be removed, while per-
mitting only one person to enter the plant to collect their be-
longings. Berger emphasized the fact that the person who
went to retrieve the material found it in dust-covered plastic
bags, indicating that it had been removed to one side at the
beginning of or early in the strike. None of these actions,
however, are inherently provocative and all are well within
Respondent’s legal rights. I find no evidence in the record
which would justify the conclusion that these actions were
calculated to, or did, prolong the strike. As I have already
noted, the strike was prolonged by Respondent’s lack of in-
terest in bargaining in good faith with the Union.
2. Offer to return and refusal of reinstatement
From the end of July to the end of August, the Union and
Respondent engaged in correspondence which embodies their
respective positions on the question of reinstatement. On July
29, Berger sent Respondent a letter as follows:
July 29, 1987
The United Steelworkers of America, Local Union
14534, hereby unconditionally offers on behalf of all
striking employees, to return to work immediately.
Employees will report to work on August 3, 1987 at
7:00 a.m.
H. Mickey Berger
Staff Representative
United Steelworkers of America
Melfi responded on July 30, advising that ‘‘the company
has no job vacancies at this time for returning strikers’’ and
that, effective August 3, strikers would be placed on a pref-
erential hiring list, for which it was necessary for them to
make an appointment with the personnel office ‘‘to fill out
the appropriate forms indicating those jobs for which the
strikers are interested in filling as vacancies become avail-
able.’’ Berger was told to address any questions regarding
procedure to Vanderpool.
On July 31, by both letter and telegram, Berger informed
Melfi that the Union believed the workers were entitled to
immediate reinstatement. Berger also stated that the financial
information furnished on June 25 was ‘‘not satisfactory to re-
solve Complaint 3–CA–13724.’’
Vanderpool responded with a letter on August 3 in which
he asserted that strikers ‘‘would be afforded their job rights
in accordance with the law’’ and should make themselves
available ‘‘for any job openings that arise.’’ He noted that
no one had returned to work on August 3, and asserted that
the financial information furnished was in accordance with
the agreement between Hoover and Prenatt. Most impor-
tantly, however, Vanderpool unlawfully linked reinstatement
to acceptance of Melfi’s ‘‘best offer:’’
Last week we informed you that if your membership
was making an unconditional offer to return to work
pursuant to the terms and conditions offered at the time
your union elected to strike, they would be afforded
their job rights in accordance with the law. [Emphasis
added.]
On August 7, counsel for the Union again asserted that in-
formation had not been provided as agreed and, noting that
the Company had taken the position that there were no open-
ings available for strikers, pointed out that Respondent had
no right to condition reinstatement upon acceptance of con-
tract terms.
171CONCRETE PIPE & PRODUCTS CORP.
7 Under New Horizons, interest accruing after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
On August 20, Vanderpool wrote to Berger that there
would be a job opening on August 27 for which strikers
‘‘who make an unconditional offer to return to work’’ would
be considered on ‘‘a nondiscriminative basis.’’ Union coun-
sel responded on August 26, reminding Vanderpool that an
unconditional offer had already been made and that strikers
were entitled to immediate reinstatement to the jobs formerly
held by them.
As I have found that the strike was caused and prolonged
by the unfair labor practices committed by Respondent, the
striking employees had the right to immediate reinstatement
to their former positions, without being required to agree to
any of the terms of Respondent’s offers in the negotiations
which were outstanding at the time the strike commenced.
Respondent’s refusal to reinstate them violated Section
8(a)(1) and (3) of the Act.
Counsel for Respondent has argued that the offer to return
was not unconditional, but was made subject to acceptance
of the Union’s last offer in the contract negotiations. He
makes this tortured argument by wrenching from context a
sentence contained in the letter which union counsel sent on
August 7 to Vanderpool: ‘‘It is the Union’s position that all
the strikers were entitled to immediate reinstatement in ac-
cordance with the Union’s offer.’’ The previous sentence in
that letter explicitly dealt with ‘‘the Union’s unconditional
offer to return.’’ The subsequent reference in the letter to the
‘‘Union’s offer’’ cannot be reasonably construed except as a
reference to the offer to return. It is patently not a reference
to any offer in the negotiations, especially as union counsel
concluded their letter with an explicit repudiation of the idea
expressed in Vanderpool’s letter that Respondent could con-
dition reinstatement upon acceptance by the strikers of Re-
spondent’s last offer in the negotiations.
CONCLUSIONS OF LAW
1. Respondent at all pertinent times herein was and is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union, at all pertinent times herein, was and is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act
(a) by failing to bargain in good faith with the Union; and
(b) by failing and refusing to furnish to the Union financial
information, requested during the negotiation sessions on
March 10, 16, 18, and 20, 1987, and relevant and necessary
to the Union’s performance of its duties as bargaining rep-
resentative of the Respondent’s employees in the following
appropriate unit:
All employees of the Respondent at its East Syracuse,
New York facility; excluding all superintendents, assist-
ant superintendents, foremen, professional employees,
quality control employees and office clerical employees.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by refusing, on and after July 30, 1987, to reinstate members
of the bargaining unit who engaged in an unfair labor prac-
tice strike.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist from any continuing violation of the Act and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent caused an unfair labor practice strike by
engaging in surface bargaining and committing other viola-
tions of the Act, including refusal to furnish information to
which the Union was entitled. The violations of the Act were
all related to the contract negotiations between the Respond-
ent and the Union in the spring of 1987. I will therefore rec-
ommend an order requiring Respondent to cease and desist
from interfering in that or in any related manner with the
rights guaranteed the employees under Section 7 of the Act.
I will further recommend an order requiring that the strikers
be offered immediate and full reinstatement to their former
job, or, if those jobs no longer exist, to substantially equiva-
lent positions without prejudice to their seniority or to rights
and privileges previously enjoyed by them, and that Re-
spondent make them whole for any loss of earnings that they
may have suffered by reason of the unlawful failure to rein-
state them by payment to them of a sum of money equal to
that which they normally would have earned as wages, from
July 30, 1987, the date of the unlawful failure to reinstate
them, to the date of their actual reinstatement, less net earn-
ings, computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Ogle Protection Service, 183
NLRB 682, 683 (1970), as applicable, to which shall be
added interest computed thereon in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).7
Implicit in these directions, of course, is the assumption
that the strikers will return to work at and receive backpay
at the rate of the pay scale in effect before the unilateral
changes instituted by Respondent on and after March 23.
Lest there be any misunderstanding in that regard, I will rec-
ommend an Order which specifically requires Respondent to
revoke changes unilaterally instituted by it after the termi-
nation of negotiations by Melfi and restore the status quo
ante from the date of Respondent’s unlawful unilateral imple-
mentation of its proposals to the date a new agreement is
reached or impasse arrived at. NLRB v. Cauthorne, 691 F.2d
1023, 1025 (D.C. Cir. 1982). As part of the overall rectifica-
tion of the situation created by Respondent’s violations of
the Act, I will recommend that Respondent be directed to
bargain in good faith with the Union upon request for nego-
tiations by the Union and that it furnish the Union with perti-
nent financial information.
[Recommended Order omitted from publication.]