Cowin & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1985

277 N.L.R.B. 802 (N.L.R.B. 1985)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cowin & Co., Inc. and United Electrical, Radio and
Machine Workers of America, U.E. and its
Local 1139. Case 18-CA-8326
26 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 12 June 1985 Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Cowin &
Co., Inc., New Brighton, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
r We agree with the judge, for the reasons stated by him, that the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act by refusing to provide
the Union with requested financial information Contrary to the Respond-
ent's assertion, we find that the Respondent's statements to the Union in
the course of bargaining amounted to a claim of an inability to pay wage
increases. The Respondent in its exceptions relies on Atlanta Hilton &
Tower, 271 NLRB 1600 (1984), and Advertisers Mfg Co, 275 NLRB 100
(1985), where the employers involved made statements during bargaining
which expressed only a simple unwillingness to pay Unlike the employ=
ers in those cases, however, the Respondent at the outset of negotiations
advised the Union that there was "a real question of whether we shall be
in business at the termination of this contract unless prior contractual
concepts are radically changed," and the Respondent raised as justifica-
tions for its wage reduction proposals its financial losses for the previous
3 years Under these circumstances, we find that the Respondent, despite
its assertions to the contrary, was in fact expressing financial inability to
pay
2 The judge ordered that backpay due employees be determined in ac-
cordance with the formula set forth in F. W. Woolworth Co, 90 NLRB
289 (1950). The correct method for computing backpay in this case is
that stated in Ogle Protection Service, 183 NLRB 682 (1970), with interest
thereon as set forth in Florida Steel Corp, 231 NLRB 651 (1977) See
generally Isis Plumbing Co, 138 NLRB 716 (1962)
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Upon a
charge filed July 11, 1983,1 against Cowin & Co., Inc.
(Cowin) by United Electrical, Radio and Machine Work-
ers of America (the Union), a complaint was issued Oc-
tober 19, 1984, and amended November 5, 1984, alleging
that Cowin violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act by (1) failing and refusing to
furnish the Union since May 18, 1983, with information
requested by it which information is necessary for and
relevant to the Union's performance of its function as the
exclusive collective-bargaining representative of the in-
volved bargaining unit; (2) unilaterally and without the
Union's consent on July 11 changed the rates of pay and
other terms and conditions of employment of certain of
its employees in the unit by implementing its final offer,
after engaging in bad-faith bargaining with the Union,
without having exhausted the collective-bargaining proc-
ess and without having reached a bona fide impasse in
negotiations; and (3) failing and refusing since August 9
to recognize and bargain with the Union in that Re-
spondent -unilaterally, without prior notice to and with-
out affording the Union an opportunity to bargain, im-
plemented a new work rule restricting the right of the
employees during working time to see their union stew-
ard, restricting the right of the steward to process griev-
ances during working time, and restricting the right of
employees in the unit to talk with visiting union repre-
sentatives during working time. Respondent denies that it
violated the Act.
A hearing was held in Minneapolis, Minnesota, on
February 12 and 13, 1985. On the entire record in this
case, including my observation of the demeanor of wit-
nesses and consideration of the briefs filed by the Gener-
al Counsel and Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Cowin, a Minnesota corporation, maintains an office
and place of business in New Brighton, Minnesota,
where it is engaged in the fabrication of steel products.
The complaint alleges, Respondent admits, and I find
that at all times material Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. It is also found that the
Union has been a labor organization within the meaning
of Section 2(5) of the Act.
Larry Witherell, Esq., for the General Counsel.
Mary Jane Gosch, Esq. (Tate & Alden Law Firm, P. C), of
Lincoln, Nebraska, for the Respondent.
Rocco DeMaio, of Minneapolis , Minnesota , for the
Charging Party.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent and the Union have had a collective-bar-
gaining relationship for close to 50 years, with the most
recent collective-bargaining agreement expiring on May
15. Prior to the expiration of that contract , both parties
gave the appropriate termination notices indicating the
Unless indicated otherwise , all dates are in 1983.
277 NLRB No. 82
COWIN & CO.
desire to alter some of the provisions of that agreement.
General Counsel's Exhibits 2 and 5.
Subsequently, collective-bargaining meetings were
held by Respondent and the Union on the following
dates: April 21; May 2, 9, and 18; June 2, 6, 22, and 27;
July 7; August 8; and October 17. At a meeting on No-
vember 14 the Union was advised of the plant closing,
and the effects thereof were discussed.
The first meeting was attended by Jim Belland, who is
vice president of Cowin; Frank Skog Jr., who is the son
of the president of Cowin; Jeff LaMere, who was the
employee committee chairperson, Sheldon Hutchinson
and Al Campbell, who were committee persons; and
Rocco DeMaio, who is the Union's business agent. The
only significant thing accomplished at this meeting was
that the Union gave its proposal (G.C. Exh. 8) to Cowin
representatives.2
In addition to the aforementioned individuals, John
Tate, an attorney from Nebraska who represented
Cowin, replaced Skog Jr. at the second meeting on May
2, and from that point on, except as noted below, he was
the sole negotiator for Cowin. He distributed and then
read word for word what can be described as a two-
page general position statement of Cowin (G C. Exh. 9)
and Cowin's contract proposal (G.C. Exh. 10) which in-
cludes Cowin's position regarding the aforementioned
union proposals. The opening paragraph of the former
read as follows:
Having come through the poorest year in construc-
tion in recent history-statistically a matter of
fact-as is the tremendous swing of jobs away from
union shops to non union shops-again a statement
of fact, not opinion-and the fact that these trends
may well continue, there is a real question of
whether we shall be in business at the termination
of this contract unless prior contractual concepts
are radically changed.
Let it be clearly understood that our determination
as an individual company is to greatly modify here-
tofore basic union shop terms in order to get the
flexibility to beat the non-union people. That does
not mean that we are anti-union or are in any way
desirous of breaking the union-quite the contrary.
As you will notice in our proposals and counterpro-
posals, we have done nothing to interfere with the
union to continue to operate as a union which we
have recognized fully in the past and in our -propos-
ats for the future. We will not, on the other hand,
sign an agreement again that we feel will prevent us
from meaningfully engaging competitively with
those who did not have the burdensome restrictions
of a union contract.
2
Among other things, the proposal called for (1) a "substantial in-
crease in all wage rates and classifications," without specifying at that
time exactly how much the contemplated increase involved, (2) a raise in
the night shift premium, (3) an employee's birthday off, (4) layoffs being
subject to a notice requirement, (5) counting overtime toward vacation
hours, (6) raising pensions; (7) increasing life and hospital insurance cov-
erage; and (8) Cowin paying for all time lost for negotiations
803
The latter, among other things, proposed substantial cuts
in wage rates. It also proposed leaving, the language "as
is" regarding such things as union shop, no discrimina-
tion, checkoffs, night-shift workers premiums, and mili-
tary service. The following is a pertinent portion of
Cowin's written comments contained in its proposal
(G.C. Exh. 10, p. 7):
The Company makes absolutely no apology for sug-
gesting that the rates be adjusted downward in light
of the economic times in which we are now operat-
ing. For years now, irrespective of whether or not
the Company made a big profit or a little profit or
lost money, the Union demanded and received con-
siderable wage increases. Now, in light of the eco-
nomic conditions prevailing and the free market, it
seems fiscally responsible on the part of manage-
ment to get their costs more in line by making these
adjustments in an effort to enlarge and/or stabilize
this business as it seeks to get work in areas that
may not have been available to it because of costs
and also to get more of the work in areas in which
it has chiefly done business in the past.
After caucusing, the committee and DeMaio advised
Tate they would need time to review Cowin's extensive
proposal. The meeting ended.
At the third meeting3 which was held on May 9,
DeMaio distributed and read to Cowin's representatives
the Union's request for information (G.C. Exh. 11, p. 2)
which, as here pertinent, contains the following:
8. Please provide Local 1139 UE with docu-
ments, books, and records which will establish the
Employers' profits or losses during each of the past
five (5) years, indicating the costs of labor, over-
head, administration, interest or other financing
charges, and total income from sales for each year
during this period. Obviously the Union is prepared
to accommodate the Employer in any reasonable
way with respect to mechanics or convenience.
With respect to request paragraph 8, DeMaio testified
that Tate said that "there would be now way . . . [the
Union] would ever see the company's books or records.
that they're confidential confidential and there's no way
. . . [the Union was] going to ever see them." With re-
spect to the requests for other specified information in
the above eight numbered paragraphs, according to De-
Maio's testimony, Tate said that he could consider those
requests but that regarding request paragraph 8 it was "a
definite no." Tate testified that at the meeting he said
that he would respond to the requests for information in
writing so that there could be no misunderstanding; and
that he wanted to make it doubly clear that Cowin had
not to that point, nor did it intend to plead poverty di-
rectly or indirectly. DeMaio also distributed the Union's
contract proposals as of May 9 (G.C. Exh. 12). The pro-
posals were reviewed with Tate indicating that he would
3 The meeting was attended by the same people who attended the
prior meeting. Except as indicated otherwise infra, these same people at-
tended the subsequent meetings
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
look them over and get back to the Union.4 Before the
meeting concluded the parties agreed to extend the con-
tract then in effect from May 15 to May 29.
General Counsel's Exhibit 13, which is Cowin's reply
to the Union's May 9 request for information, was dis-
tributed and read by Tate at the May 18 meeting. s As
here pertinent, paragraph 8 reads as follows:
8. As we did not plead inability to pay nor pov-
erty, therefore, under the rules and decisions of the
National Labor Relations Board, it is unnecessary,
and we feel unwise, to make public the private
books and records of this Company. Those records
are as private as are the individual records of every
individual employee as to how he conducts his own
personal affairs.
Tate also distributed and read a two-page document enti-
tled "Company's position in light of Union's proposals."
General Counsel's Exhibit 14. Therein it is indicated that
while the Union demands an increase in pay, pensions,
and insurance, Cowin's'position was as follows:
We might as well make it plain tight here, with
unions across this country engaged in construction
making sizable and substantial concessions due to
the economic climate and the on-rush of non-union
contractors, we will get substantial wage reductions
and other types of flexibilities that we indicated in
our initial proposal or there will be no contract. We
might as well come to grips with that fact right
now. As we said initially, things will not, obviously,
always remain this bad and we want some coopera-
tion on the part of the Union now and some take-
backs just as we have in years before, year after
year after year, raised the wages and strengthened
the terms and conditions of the contract, now we
feel it only reasonable for the Union to grant some
substantial concessions making more likely our con-
tinued work and progress together.6
Tate also distributed and read Cowin's complete contract
proposal (G.C. Exh. 15). The Union indicated that it
would need time to review the proposal and asked for
another meeting.
At the next meeting, which was held on June 2,
DeMaio distributed and read a three-page letter to Tate
and Belland (G.C. Exh. 18), which reiterates the Union's
request for information as set forth in paragraph 8 in its
May 9 request. In the letter, the Union indicates that it
believes that Cowin had pleaded "inability to pay or
poverty" since it asserts that there is a real question
whether it can continue without contract changes; that
Cowin's contract demands on the ground that it cannot
remain competitive under National Labor Relations
4 The Union 's proposal regarding wages reads "90¢ across the board
on all rates and classifications ." Also, it indicated that a number of speci-
fied provisions dealing with such matters as grievance and arbitration
procedure and probation period should "Stay as in [existing] contract."
Finally it agreed with the Company's proposal to leave certain language
"as is" regarding such things as union shop, checkoffs, etc.
5 Tate did not read the attachments to the reply.
6 In the next to the last paragraph of the document Cowin agreed to
the Union's request to an increase to $10,000 for employee life insurance
Board decisions amount to a poverty plea or claim of in-
ability to pay; that to expedite matters it is suggested that
Cowin provide dollar figures for each of the categories
of information sought in paragraph 8 in the Union's May
9 request, subject to verification through an examination
of the pertinent document books and records; that the
Union would make the requested information available
only to its own experts; and that Cowin's May 18 reply
to the other eight May 9 requests sheds little light on the
competitive priority of Cowin. Tate distributed and read
a five-page commentary on various aspects of the current
contract indicating why Cowin assertedly could not
agree to the inclusion of the same provisions in the con-
tract being negotiated. General Counsel's Exhibit 19. The
body of the document ends with the following:
It should be needless to explain that all of these, re-
strictions increase costs and make our bids for work
more costly and less likely to be accepted in a free
market situation where other bidders are not so lim-
ited and restricted-thus illustrations of our reason
for arguing for significant changes in the economics
and wording of our collective bargaining agree-
ment. Our wording may not be the ultimate, but it
will be unless you show us rational reasons satisfac-
tory to us for elimination or modification.
Our reason for considering the contract expired is
to try to stimulate and/or encourage the Union to
make a greater effort to meet more often and/or
longer in an effort to finalize terms and conditions
of an agreement. Since such an agreement will
likely include take-backs, delay serves the best inter-
est of the Union as they have exhibited to date.
Should such practices on the part of the Union con-
tinue, you practically force us into presenting last,
best and final proposals in order to know what our
costs will be so we can intelligently bid on future
jobs.
Tate also distributed and read Cowin's 15-page June 2
proposal, General Counsel's Exhibit 20. Therein Cowin
raised its wage offer by 50 cents but, as testified to by
DeMaio, it was "still quite a bit less than what the work-
ers in the plant were getting at that time." Provisions of
the contract were discussed and agreement was reached
on the first five articles which deal with recognition,
union shop, checkoff, no discrimination, and the size of
the shop committee. Tate testified that at this meeting he
advised the Union that he only "talked about competi-
tion . . . in the context of answering the questions that
... [the Union] had raised for . . . [Cowin] to answer."
A two-page letter was distributed and read by Tate at
the next meeting held on June 6. General Counsel's Ex-
hibit 21. The letter opens with-
Again in your letter of June 2, 1983, addressed to
Mr. Belland , you wrote of your need for financial
information from Cowin if you were to consider
take-backs or concessions. Again we refused to pro-
vide you confidential and private figures because
Cowin has never pled poverty or losses directly or
indirectly as a basis for reducing employee costs.
COWIN & CO.
That is not to say we may not have had substantial
losses. It does mean that our position is based on
other factors.
And it closes with:
On the basic issues your Union position has re-
mained substantially the same in spite of the infor-
mation we have furnished you. As we said at our
last meeting , let us see some substantial movement
on your part or we will give you our final offer in
order to bring this thing to a head so we know
what our costs are for bidding purposes.
DeMaio testified that he then told Tate that the Union
still] needed to see the financial books and records of the
Company if the Union was going to make any type of a
concession based on what Tate was saying , viz., that
Cowin could not be competitive in the market place
without concessions ; and Tate said that "there 's no way
. , . [the Union was] ever going to see . . . [Cowin's]
books. They're confidential." Cowin's revised proposed
agreement (G.C. Exh . 22) was also distributed at this
meeting. In turn, the Union"s proposal (G.C. Exh. 23)
was given to Tate. Page 1 thereof states:
6. Since the Company is refusing to give the
Union the information we asked on 5-9-83 and
again on 6-2-83 the Union, understandably, ques .
tions the soundness of the factual basis for the Com-
pany 's demand for concessions . The Union Position
is that we will deal with the non-Economic first.
Until the Company gives us the information the
Union is asking then we will deal with the Econom-
ics.
Tate's written response , distributed at the afternoon ses-
sion (G.C. Exh. 24) page 1, reads, in part, as follows:
As to Article 6 (union sec 6) the union is refusing to
discuss wages. As we have told you, you have the
information you are entitled to and are going to get.
You have what you need. You can expect nothing
in addition from us. In light of that response on
your part you have our wage proposal.
Agreement was reached on the job descriptions of shop
leadmen, welders , and fitters . No agreement was reached
on wage rates, hours and overtime , and seniority.
As here pertinent , the following letter , dated June 8,
was forwarded by Tate to DeMaio:
In spite of all we have tried to do in negotiations,
we are at an impasse.
You have said several times that you will not dis-
cuss economics until I give you the economic data
you demanded May 9 , 1983. You have more infor-
mation than the Company is required to provide
you and that is a weak excuse for your failure to
bargain on wages. I am at a loss as to your real rea-
sons.
In light of the above, at the conclusion of the sixth
(6th) Union/Company bargaining session , we ended
last Monday with no further meetings scheduled
805
and you said you would contact me sometime about
a meeting.
Our contract expired on May 15, 1983. We need to
know our costs for purposes of bidding on con-
struction jobs. We have been trying to get you to
get off your one wage offer of 904 ; an hour raise so
we could reach some monetary agreement. You
have not even been willing to discuss the wages.
We feel you leave us no choice now but to make
you an offer which we plan to put into effect June
20, 1983 , as our best and final offer unless you agree
to meet and meaningfully negotiate all open issues
before that time.
Your stated reason for not agreeing to our proposed
articles on Seniority , Hours, Management Rights,
No Strike and a number of other issues has been
that the Company has had no trouble with the
Union in forty-six years , so there is no reason for
the additions or changes . In answer , we have laid
out the 80% layoffs, local area competitors with
considerably lower wages and fringes and the rapid
expansion of non-union companies in the construc-
tion industry. You must -do better than that in nego-
tiations prior to June 20, 1983, if we are to negotiate
an agreement.
As this writing, we have met and negotiated at the
time, place and hour you have desired. We hope
you will now meet our terribly full schedule and
meet sometime , day or night , Saturday , June 11,
1983; day or night, Sunday , June 12, 1983; or
Monday, June 13, 1983 up to 1:00 p.m . when I must
leave. My schedule is full for the rest of the week,
but I do want you to know that since you repeated
last Monday that you would be in court the rest of
this week that I think the Cowin settlement should
be important to both of us to justify meeting on the
weekend or at least Monday 9 :00 a.m . to 1:00 p.m.
Please communicate with my office at your earliest
convenience so that we may plan accordingly.
By letter to Belland and Tate dated June 9, DeMaio,
among other things, repeated the Union 's request for the
economic information sought in "paragraph #8 of the
May 9th letter sent by the Union as explained and
amended in . . . [its] letter of June 2nd and on June 6th
in the Union Proposal." (G.C. Exh. 25.) The letter goes
on to state "[s]ince you make claims that your capacity
to compete hangs in the balance please give us data to
justify this claim . The matter is too [important] [as subse-
quently corrected by DeMaio in G.C. Exh. 26] to the
employees and to the Union to act on the basis of your
unsupported statements." General Counsel 's Exhibit 25.
The next day, June 10, DeMaio forwarded the follow-
ing mailgram to Tate:
IN CONFIRMATION OF OUR TELEPHONE CONVERSA-
TION OF 6/10/83, 1 AM SENDING YOU THE FOLLOW-
ING INFORMATION.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I RECEIVED YOUR LETTER DATED 6/8/83 AND POST-
MARKED 6/9/83 TODAY, 6/10/83, AT 10:15 AM. WE
HAVE SAID AND SAY AGAIN, THAT WE ARE READY
TO NEGOTIATE ON ALL OPEN ISSUES, HOWEVER,
SINCE YOU HAVE FAILED TO GIVE US ESSENTIAL IN-
FORMATION, WE ARE RENEWING OUR REQUEST 'FOR
INFORMATION AS STATED IN OUR LETTER OF 6/9/83
AND PREVIOUS CORRESPONDENCE.
SINCE YOU MAKE CLAIMS THAT YOUR CAPACITY TO
COMPETE HANGS IN THE BALANCE, PLEASE GIVE US
DATA TO JUSTIFY THIS CLAIM . THE MATTER IS TOO
IMPORTANT TO THE EMPLOYEES AND TO THE UNION
TO ACT ON THE BASIS OF YOUR UNSUPPORTED
STATEMENTS . WE ARE AVAILABLE TO MEET ON
MONDAY, 6/13/83, IN THE AFTERNOON , AND/OR
TUESDAY , WEDNESDAY , AND THURSDAY.
PLEASE LET ME KNOW WHAT DATES YOU ARE
AVAILABLE. SINCERELY.
By letter to Tate dated June 15, DeMaio again re-
newed his request "for information as stated in . . . [the
Union's] letter of June 9, 1983, previous correspondence,
and . . . [the Union' s] mailgram of June 10th." (G.C.
Exh. 29.)
At the June 22 meeting Tate distributed a letter from
him to DeMaio (G.C. Exh. 32), which reads as follows:
Cowin has not said we are unable to get the re-
sources to pay. We have not pled that increased
wage rates would put us out of business at this time,
nor have we argued that competition precludes a
wage increase. In no fashion or form have we relied
on finances or the lack of same for changes pro-
posed in our collective bargaining agreement.
We are saying we will not sign another contract
that will continue to restrict and reduce our flexibil-
ity and ability to better control our work force as to
wages, hours and working conditions.
About a year ago we at Cowin sought to withhold
the dollar increase called for in the contract and of-
fered to show the Union its books. It did no good.
We simply are not going to bargain ourselves into
that position again.
Let us state again, as the record will show, Cowin
has not made inability to pay the bases for the
changes sought.
We cannot now be faulted for specifically providing
you with information you asked for as to CECO
and/or Central Minnesota Fabrication. As we said
initially, we do not own or control those or other
companies. We do not know or control their rates.
Upon your request, we shared what our understand-
ing was and is. We would not swear to its correct-
ness but you asked for our basis of understanding
and we provided it to you.
We suggest you stop stalling and get on with the
process of collective bargaining.
The union representative told Tate at this meeting that
Cowin had claimed inability to pay because of competi-
tiveness, as indicated in Cowin's May 2 letter, and the
Union again asked for the information that it has been re-
questing since May 9 so that it could bargain intelligent-
ly. According to DeMaio's testimony, Tate responded
that "[t]here's no way .. . [the Union] was every going
to see the company's books." The Union reduced its
wage proposal to an increase of 75 cents an hour (from
an increase of 90 cents an hour). See General Counsel's
Exhibit 33. Subsequently Tate agreed to show Cowin's
profit-and-loss statement to the Union's certified public
accountant (CPA). While the Union offered to sign a
statement protecting the confidentiality of Cowin' s finan-
cial books indicating that the information would not go
any further than the Union's International office and the
union committee, Tate said that he would not furnish
them and that he did not want the Union using them or
engaging in "skullduggery." Tate only offered to show
the profit-and-loss statement to the Union's CPA.7 How-
ever, Tate did verbally indicate to the Union that before
taxes Cowin lost (a) $218,000 in 1981 ; (b) $248,000 in
1982; and (c) $299,000 up to that time in 1983.8
Regarding the nature of his June 22 offer, Tate testi-
fied:
I had written out in advance a statement [R. Exh. 3]
which I read to the union. I had hoped at that
meeting to have a copy of the auditor's reports of 4,
5, 6[,] 9 pages. That was not there, so I read them a
statement about the losses that had taken place in
'81 and '82 and '83, explaining that I did not think it
was necessary, but in the meeting of June the 6th in
fact in the handwriting that the union gave to me in
their proposal, they said that we'll talk about these
items that are noneconomic, but until you give us
some economics, we're not going to talk about the
economic measures.
Q. And why was the offer made in that form?
A. I had not received the information that I had
asked for from the company through the auditors. I
wanted to be sure I had the figures correct, and that
what I said was proper and correct.6
v When asked what specifically the Union was told that they could see
other than the balance sheet or the profit-and- loss statement , Belland,
who is a CPA, testified, "I don't believe we got into specifics other than
saying what a . . CPA would need to verify the authenticity " (Empha-
sis added.) A union field organizer who also attended this and the next
meeting, Joseph Miller, testified that while Tate offered figures, Respond-
ent did not offer verification with its auditing firm to the union represent-
atives present at the meeting
8 Tate testified that at the May 9 meeting, when the Union requested
financial information, Tate said that "all of the proposals that we have
made have been in writing and will be in writing, so that there can be no
misunderstanding, and that we will respond in writing to this request
here " Also, Tate testified that he could not recall any other occasion
when he read a document to the Union but did not give them a copy.
9 The memorandum, R. Exh 3, which was not distributed to the
Union, reads as follows:
TO: UE Local 1139
FROM John Tate, Negotiator for Cowin & Co, Inc.
DATE- 6/22/83
We are offering to allow your C.P.A. to verify with Jim Belland and
our auditors: Boulay, Heutmaker, Zibell & Co., that our Cowin bal-
Continued
COWIN & CO.
At this point in the meeting DeMaio told Tate that
DeMaio was not going "to buy a pig in a poke"; and
that concessions would not be made based strictly on
what Tate was saying without showing the Union
Cowin's financial books. The Union asked for and was
provided with the auditing firm's name , address, and
telephone number. And Tate was told that the Union
would have to contact its International regarding this use
of a staff CPA who is located in New York, New York.
At the next meeting, June 27, Tate distributed and
read his five-page letter to DeMaio (G.C. Exh. 34). Per-
tinent portions from page 1 read as follows:
As you will notice, we will go through in detail and
point out the changes , additions , updating and im-
provements we have made in this Cowin proposal.
We are about at the end of our changes, if you con-
tinue the slow progress so far. Basically you are not
providing us with specifics as to what is wrong
with our proposals. Rather, you are frequently stat-
ing that we have not had problems with an article
and the old contract should not be changed. That
will not cut it. Specifically what is wrong with the
proposal and why?
DeMaio distributed the Union's June 27 handwritten pro-
posal (G.C. Exh. 25) which reads in pertinent part as fol-
lows:
Since the Company is refusing to supply the Union
with the complete financial records & [b]ooks of the
Company . . . [t]he Union feels then the Company
is not serious in their deamnd [.] [T]he matter is too
important to the employees and to the Union to act
on the basis of your unsupported statements.
DeMaio testified that he asked Tate whether the Union's
CPA would be allowed, after looking at Cowin's profit-
arid-loss statement, "to clarify or go into the books for
other stuff' and Tate said "no"; that he gave Tate exam-
ples, viz, the type of disbursements Cowin had and the
salaries being paid to Cowin's manager and foremen; that
the Union changed its wage proposal in that it sought 50
cents an hour for the first year and the second year there
would be a wage reopener or the increase would have to
be negotiated; that Tate said "no" to this wage proposal;
that he did not receive any documents dealing with
Cowin's financial situation at this meeting;'() and that
ance sheets and records properly show that Cowin & Co , Inc. lost,
before taxes
in 1981 $218,750 83
in 1982 289,362 82
Also, internal company financial statements will verify a loss of
$299,362.15 for the first five months of 1983 This offer in no way
changes the consistent company position that it wants to change the
contract as indicated in writing to you already for a tighter control
over the work force and to prepare this company to take a more
active part in job bidding that has heretofore been denied us. We are
not and have not used these figures to plead inability to pay or exist
We feel this company will be strengthened by the contract changes
proposed and explained by the company to the union
1s More specifically , during cross -examination DeMaio was shown R.
Exhs. I and 2, described more fully infra, and he testified that he did not
recognize them and they were not distributed at the June 27 meeting
807
Cowin did not make an offer of financial information to
the Union at this meeting. On the other hand, Tate testi-
fied that at the June 27 meeting he distributed (a) a four-
page accountant 's report from Boulay, Heutmaker , Zibell
& Co. giving Cowin's balance sheets and profit -and-loss
statements for 1981 and 1982 (R . Exh. 1), and (b)
Cowin 's balance sheet and profit -and-loss statement, both
dated May 31 (R. Exh. 2)11i that he tried to explain these
two documents; that the union negotiators present were
not allowed to keep their copies, "for confidentiality rea-
sons . . . [he] asked for them back"; that he told the
Union that its "auditors could get from . .. [Cowin's]
auditors any information that was necessary to prove the
accuracy of . . . [Cowin's ] statements . . . [regarding]
the losses in the years of '81 and '82 and '83" ; that the
Union wanted to know the salaries of the particular indi-
viduals in management but he refused to make available
other than showing what Cowin's "lump sum," adminis-
trative costs, and the overhead were and whatever else
the auditors would decide was necessary among them-
selves as professionals in the area; that he could not
recall whether he gave either or both Respondent's Ex-
hibits I and 2 to the Regional Office when this case was
being investigated; that the meeting lasted 3 to 4 hours;
that Respondent's Exhibits I and 2 were handed out 45
minutes after the meeting started ; that he took this mate-
rial back before the meeting broke up but he could not
estimate how long the union negotiators had the informa-
tion in their possession ; that he did not say when he
handed these documents out that they should not be du-.
plicated; that it is possible that those present took a break
sometime that morning; that he did not remember telling
the union negotiators that he did not want them taking
notes on the material ; and that while the Union had of-
fered to sign an agreement of confidentiality on June 22,
no such agreement was signed on June 27 . Belland testi-
fied that Tate passed out Respondent's Exhibits 1 and 2
at the June 27 meeting; that Respondent's Exhibit 2 was
prepared under his supervision; that the union represent-
atives were not allowed to keep their copies; that the
Union's auditors did not contact him regarding verifica-
tion of these figures; that he believed that the first thing
Tate said when he distributed Respondent's Exhibit 1
was that "these were prepared by an independent CPA
firm Boulay, Heutmaker and Zibell because the account-
ant's report is on its letterhead. As noted above, on June
22 the union representatives, at their behest, were given
the name of this firm and told who it was and what it
was; that he did not recall there being a lot of questions
asked by the Union on Respondent's Exhibit I; that he
did not recall whether the Union asked for a copy of Re-
spondent's Exhibit 2; that the Union did not ask to have
these two documents sent to its CPA; that his function at
the meeting was to observe and take notes; that the four
pages of notes he took after the June 27 meeting (G.C.
Exh. 52) neither make any reference whatsoever to the
two above-described financial documents, Respondent's
Exhibits 1 and 2, nor do they speak to any discussion of
ii Belland was said to have prepared this
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these documents;12 that pertinent portions of the notes
read as follows:
T [Tate]-passed out letter dated 6-27-83 & read
same
U [Union]-last meeting T said would open
books; is Co. willing to let them [Union] look . . .
[at] everything re salaries
T- No; listed parameters . . . [at] last meeting
only with U's profess.; allow CPA to verify Bal-
sheet & W/I reason certain figures to verify
U-can CPA see all the Cos. books
T-no
U-Co. saying can't afford raise but won't allow
all detail
T-never said Co. can't afford it.
U-wanted caucus . . . [at] 10:00
U-called us back in . . . [at] 11:37 read U prop.
dated 6-27 . . . [at] 11:30 [The two times stated in
this entry do not square.]-on 6-2-83 T agreed to
keep Sec. 43 in C based on what . . . has said
T-no problem with that[;]' 3 that he is still an
officer of Respondent which has not been dissolved;
and that he did not engage in any discussions at the
negotiating sessions.
On rebuttal, Miller, DeMaio, and LaMere testified that
they attended the June 27 meeting and that they were
not given Respondent's Exhibits 1 and 2. All three had
never seen these documents prior to being shown them
at the hearing herein. Miller testified that neither Tate
nor Belland ever gave him documents which they asked
him to return; and that on June 27 he asked Tate wheth-
er the union representatives or the Union's CPA could
see how the figures which Tate had given verbally on
June 22 were derived and Tate said "no."
Attorney Tate forwarded the following letter to
DeMaio on June 28 (G.C. Exh. 36):
When we separated after negotiations yesterday,
you said you were going to send me a letter. After
some thought, I decided I should write a letter to
you also.
Unfortunately, you have continued throughout
negotiations to say that you will not accept wage
cuts unless we "supply the Union with the complete
financial records and books of the Company." Keep
in mind that we have never said , directly, or indi-
rectly, that we cannot pay, and we are not going to
supply all of these records. A year ago we told you
that we were losing money. We offered to show
you the books and you refused. Ultimately, we had
to give the Union a dollar raise anyway. That does
not make good economic sense. We will not allow
ourselves to be placed in that position again.
Despite what you may think, our offer to allow a
CPA of the Union's choice to meet with our Com-
pany CPA and Executive Vice President, Jim Be]-
12 The notes indicate that the meeting began at 9 36 a m and ended at
1152 a m
11 Sec 43 does not have anything to do with Cowin's financial books
land, and our auditors, Boulay, Heutmaker, Zibell &
Company, was not made out of fear or because we
had plead poverty. Not at all. We made no such
plea. However, you had said that you would not
consider cuts unless we showed you we needed
them. We complied with that request. We offered to
show you our balance sheets, which show that we
lost, before taxes: [Emphasis added.]
$218,750.00 in 1981
$289,362.00 in 1982
We have also told you that while this year's
books have not been audited, it still appears that we
have lost $299,000 in the first five months of 1983.
Again, all of this was not offered to say that we
cannot pay more, as we have consistently repeated.
It is offered to show that we are unwilling to pay
and unwilling to continue this madness.
We have lived under this contract for three
years. We have consistently lived up to its terms,
however good or bad they were. We have told you,
however, that we are not going to sign another con-
tract like the expired one. We won't sign ' another
contract that has no limit on insurance costs and has
constantly escalating wage and operating costs. We
won't sign another contract that provides for 'very
little management authority to efficiently select and
direct the work force.
We are willing to meet and negotiate 'a new
agreement. We thought that was what we had been
doing. Unfortunately, we find it hard to justify con-
tinuing in light of your position. Simply put, you
have stated that you would refuse to go along with
any changes in the old contract as they relate to:
Hours-Overtime;
Holidays;
Seniority;
Grievance and Arbitration;
Supervisory Work;
Insurance;
Management Rights;
No-Strike No Lockout;
and others.
We find it regrettable that you have chosen to
remain so intransigent. The changes we have pro-
posed in wages, hours, seniority, classifications,
management rights, no-strike no-lockout, etc., were
proposed for very valid reasons. We are dissatisfied
with the previous language and insist on some
changes. We proposed them because we felt they
were necessary to assist and protect us and would
assist us to grow and provide better opportunities
for all.
We are insisting on them at this point for the
very same reason. You may not agree with our po-
sition, however, there is certainly nothing unreason-
able or unfair about it.
Whether you want to call it that or not, we are
at an impasse. The old contract expired May 15th.
COWIN & CO. ' 809
Since we have been pushing for a wage cut, it has
been to your advantage to stall. And, that is exactly
what you have been doing. Considering the relative
positions of the parties, we have gone as far as we
are willing to go and if you have been telling the
truth, you have apparently gone as far as you are
willing to go. Therefore, absent some meaningful
movement prior to Monday, July 11, 1983, and
some indication that the impasse can be broken, we
intended to implement the terms of our enclosed
last, best and final offer.
Tate testified as follows regarding General Counsel's Ex-
hibit 36:
Q. What was the purpose of that letter?
A. Our purpose of the letter, as of everything
here, was to get a contract, and to do whatever was
necessary within reason to get that contract.
Q. In that letter you declare impasse. Is that cor-
rect?
A. That's correct.
Q. And how did you determine that impasse had
been reached?
A. Well, at the last meeting we had had, he had
said , do whatever you have to do. We had come to
the point where we had given the information and
agreed that they could get whatever else they
needed from the auditors, and we still weren't get-
ting anywhere. We-they were saying, leave the
contract as it is.
Enclosed was an "agreement " with "last best & final sent
6/28/83" written at the top of the first page. (G.C. Exh.
37.)
DeMaio forwarded the following letter to Tate on
July 5 (G.C. Exh. 38)-
1 received your letter of June 28th on June 30,
1983. I am writing to you to reply to that letter and
again state the Union's position.
Since you came into negotiations on May 2, 1983,
you have taken a take it or leave it attitude towards
reaching a collective bargaining agreement. In fact,
the company, through you Mr. Tate, said that the
company is losing money and can't get bids so they
can't be competitive. Then the Union requested to
see the financial books and records and names of
the 'competitors that they were bidding against.
Then the company, through you, said that we are
not pleading poverty and we are competitive. Mr.
Tate, you have been talking out of both sides of
your mouth, one by saying you are losing money
and can't be competitive and the other side by
saying we are not pleading poverty and we are
competitive.
Many of your proposals are personnel and I find
it very regrettable that you have chosen to remain
so intransigent. The Union is very interested in
reaching a satisfactory agreement, but the employer
has come into negotiations with such sweeping de-
mands for contract changes without giving justifi-
able reasons nor giving the Union the information it
has requested on numerous occasions that it makes
it most difficult. The facts are, Mr. Tate, that the
Union is trying to reach an agreement. The Union
has agreed to the following company proposed arti-
cles: Articles 1-2-3-4-5, parts of article 7 on shop
leadman, welder fitters, welder class A, B, C, paint-
er class A, B. Also articles 15-16-17-22-23-25-26-27
and 28.
Mr. Tate, the Union is willing to sit down and
negotiate a satisfactory agreement. The Union is
prepared to make a proposal to try and break this
log jam and reach agreement. We are available to
meet on Thursday, July 7th or Monday, July 11th.
Please inform me of when you can meet. 14
Tate forwarded the following letter to DeMaio on
July 5 (G.C. Exh. 39):
We have consistently said we will not pay the
wages and benefits we have in the past. You have
asked us for data as to why. We have offered data
and we have said it was more than just pay and
fringes. We also wanted to be able to manage the
work force in a more effective and flexible manner.
All of the above are easily understood when you
review the enclosed results of information for 1982
that came into our possession. We have had similar
information before, but it was not as reliable, com-
plete and up-to-date as this is. [The.enclosure stated
the "RESULTS OF THE CENTRAL FABRICA-
TORS ASSOCIATION, INC. 1982 Fringe Benefit
Cost Study (31 members reporting) "in terms of the
average cost and Cowin's costs for vacation, holi-
day, wash-up rest period, insurance„ pension, and
workers' compensation.]
Hopefully this data will help to explain to you
and your members the advantages of putting our
last, best and final offer in effect at Cowin on
Monday, July 11, 1983.
At the next meeting, July 7, DeMaio indicated that the
Union still wanted to see Cowin's financial records in
light of its claim that it did not have the ability to pay or
could not be competitive and wanted concessions. Even
though Cowin refused, DeMaio made what he termed a
"rock bottom" proposal, namely, a wage freeze, those
changes agreed on would be made, and otherwise the
contract would stay as is. According to DeMaio's testi-
mony, Tate said:
No getting the company's financial books, no to a
wage freeze, no to keeping contract language as is,
and he said that effective July 11, everything will
be in effect.
His best and final will be in effect . . . . [o]n July
I1th.
14 DeMaio testified that he. understood "log jam" to mean "[t]hat
we're both at loggerheads and that nobody is moving .. [o]n certain
things "
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tate testified that the Union agreed on July 7 for the
first time to freeze wages , have a 1-year contract, and
"all the rest of the things stayed the same."
DeMaio forwarded to Tate on July 7 the following
letter (G.C. Exh. 40):
This letter will recap the union's position taken at
today's negotiating session. After receiving your
letter of June 28, 1983, which stated that you in-
tended to unilaterally implement your last offer
absent some meaningful movement prior to July 11,
1983, we notified you that we wanted another meet-
ing.
That meeting was held today, July 7th. We told
you that we were prepared to make a significant
movement, a proposal that included a wage freeze
for one year, agreement to your proposals that we
outlined in our letter to you of July 5, 1983, and to
leave the rest of the contract as is. You flatly reject-
ed our proposal. This again shows the company's
take it or leave it attitude that has prevailed
throughout these negotiations. Nevertheless, in an
effort to try and resolve this contract and in spite of
the company's intransigent position, we made our
proposal. We asked you at the meeting and ask you
again not to implement your last offer. The union
feels that it has made a meaningful proposal and if
the company was really interested in reaching an
agreement, they would seriously consider our offer.
When we returned to our UE Office, we re-
ceived a letter in the mail from you that was dated
July 5, 1983. This letter included a survey study
from 31 members of the Central Fabricators Asso-
ciation. In order for us to accurately compare the
figures, please give us all the information this
survey was taken from, including the names of the
companies, their location, whether they are union
or non-union, their rates of pay, number of employ-
ees, type of work, what insurance plans they have,
what pension plans they have, amount of vacation
time, amount of holidays and what they are, amount
of wash up time, amount of rest period time, acci-
dent rates used to figure their workman's compensa-
tion rates and any other information used to arrive
at these figures. We would also like to know the
formula you used to figure Cowin's costs of the
items listed.
We again renew our request for all the financial
records you have that might justify your outrageous
demands on the workers.
We state again as we did earlier today that we
should continue to meet and try to reach an agree-
ment. We said we would contact Federal Mediation
and you said if we wanted to, go ahead and notify
them. I did notify Federal Mediation today and told
them of the siutation.
Subsequently DeMaio received a copy of the follow-
ing from Frank Skog, president of Respondent on its let-
terhead (G.C. Exh. 41):
July 11, 1983
This is to notify all parties that we are operating
under the terms and conditions of the last, best and
final offer of the Company, which was provided to
your Union last week.
DeMaio forwarded the following letter (G.C. Exh. 43)
to Cowin on July 12:
Dear Mr. Skog:
On July 7th, 1983, UE Local 1139 held a mem-
bership meeting and voted on your "last, best and
final offer." It was rejected 100%.
Your company representative, Jim Belland, is
fully aware that it was rejected, and we are still
willing to negotiate for a new contract.
DeMaio testified that at no time after July I1 did Cowin
advise him that it would abide by the terms of the old
contract; that under Cowin' s last best offer there were
wage reductions of between 12 and 31 percent; that the
wage cut was not across the board but rather it was
made at random; that under the contract, which original-
ly was effective to May 15, Cowin paid the full cost of
hospitalization and dental insurance and under Cowin's
last, best, and final offer it paid only $150 and the em-
ployees had to pay the remainder; and that dental cover-
age was never brought up during negotiations.
The next meeting was held at the local Federal Media-
tion and Conciliation Services (FMCS) offices on August
8. The mediator, who was familiarizing himself with the
situation , met separately with the representatives of
Cowin and the Union. Neither side made any new pro-
posals or changed their respective positions.
The following, General Counsel's Exhibit 44, was
issued by Cowin on its letterhead and a copy was for-
warded to DeMaio:
August 9, 1983
EMPLOYEE NOTICE
RE: Rest Periods
Your union representatives have been told of em-
ployees filling the coffee machine, washing up early
and "leaving machines without good reason during
working hours." This includes taking time for union
activities during working time.
As per Article 17-Rest Periods . . . . there will
be no rest periods STARTING TOMORROW
unless this abuse of working time is discontinued.
We do not want to discontinue rest periods but it
seems employees are forcing the issue . We will
monitor it on a day -to-day basis and take such
action only if the leaving of machines without good
reason during working hours continues.
RE: Union Activities
There seems to be some confusion as to rights of
employees to stop work at their pleasure and go see
the Union Steward.
COWIN & CO. 811
The general rules of industry, and certainly our
rule there, is that the employee is always to do as
he is told and grieve it later if they think it is im-
proper.
Employees are not to take time during work to
go see the Union Steward. Union business is to be
handled before work, at lunch or after work.
RE.- Vacations
A couple instances have already taken place con-
trary to the contract in force. We want to remind
all of the employees that hereafter vacations, like
the rest of the contract, will be operative as per that
document effective July It, 1983.
On August 15 Cowin submitted a statement of position
to the Board, General Counsel's Exhibit 50. The follow-
ing appears on page 4 of the document:
I don't believe we ever said we couldn't compete
with the present contractual wages and benefits-
we said we were losing our shirts and didn't think
we'd be in business in the future if that continued
(that's just elementary economics) and that we
wanted some relief. We didn't link losing money
with wages alone. We just didn't believe that deficit
spending is an intelligent way for a small steel fabri-
cator in Minnesota to do business. We didn't plead
poverty. We didn't plead inability to pay just un-
willingness . And we didn't plead inability to com-
pete-just a desire to look more like our competi-
tors. So, I don't believe any duty existed on our
part to furnish financial data.
completely and accurately answered. The union
simply refused to consider anything less than a com-
plete and unexpurgated opening of the books. [Em-
phasis in original.]
If the union was willing to consider our offer, it
would have realized that the information we were
proposing to offer and the format we were propos-
ing would have established for the union, ". . . the
employer's profits or losses . . . indicating the costs
of labor, overhead, administration, interest or other
financing charges, and total income .. .." Just ex-
actly what they were requesting on May 9. Unfor-
tunately, the union was more interested in causing
us grief than in negotiating in good faith.
We have nothing to hide, and we are not at-
tempting to keep information from the union. We
merely sought to limit circulation of our financial
data; and once again, the union initially accepted
this notion. We weren't trying to frustrate bargain-
ing. On the contrary, if you think about it, our pro-
posal to have the union's CPA review our records
and explain them to the union (answering any of its
questions) is a lot of more expeditious than having a
labor lawyer argue accounting principles with a
business agent and four production workers during
negotiations. It is hardly appropriate for the Board
to take the position that our offer was insufficient
when the union has no idea what information our
offer would have provided.
DeMaio received the following (G.C. Exh. 45) on
Cowin's letterhead, dated September 12 and signed by
Belland:
And the following appears on pages 5 and 6 of the docu-
ment:
Moreover, our response is consistent with what
the union had previously indicated was acceptable.
During negotiations the union stated that it did not
want the information itself but would want its pro-
fessional people to look it over and verify the fig-
ures shown on the balance sheets I presented to
them. These balance sheets showed losses of
$218,750 in 1981 and $289,362 in 1982. I also told
them that we'd lost $299,000 during the first five
months of 1983. Again, I made it clear that we
weren't saying we couldn't pay or compete-we
were saying that we'd like very much to make our
outflow resemble our inflow. Since we understood
that the union wanted to verify the figures on our
balance sheets, our offer to let our respective CPA's
get together and confirm that what was on our fi-
nancial statements and balance sheets was correct
should have been enough.
I also want you to know that this was not the
outside limit on any proposal by the employer to
share its financial information. I made it clear in
both the June 22 and June 27 meetings that whether
additional supporting data was necessary was up to the
people involved in the review. This would include, ob-
viously, the union's CPA. Thus, any questions as to
the employer's financial status could have been
Our August 9, 1983 annoucement that Union
business is not to be conducted on Company time
and that the business agent cannot enter the prem-
ises without first contacting management is hereby
rescinded.
Because of what we think are abuses by employ-
ees and the Union we believe that it is unwise to
continue permitting employees to conduct Union
business on Company time and permitting unlimited
access to our facilities by the Union business agent.
We would, however, like some input from you. We
have no objection to Union activity but don't be-
lieve that it should take place at the total expense of
production. We are therefore, requesting a meeting
to discuss this matter with the hope that we can ne-
gotiate a satisfactory resolution.
Please respond as soon as possible, but no later
than the close of business Thursday, September 15,
1983.
Michael Alden, a partner in Tate's law firm, substitut-
ed for him at the October 17 meeting held at the local
FMCS office. This is the first time Alden attended the
involved meetings. Regarding this meeting, DeMaio tes-
tified that Cowin's financial records were discussed, and
that when the meeting ended it was his understanding
that the Union's CPA would contact Belland to make ar-
rangements to go through all of Cowin's financial books
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and records and there would be no limitations.' 6 Alden
gave the following testimony regarding this meeting:
A. They-we met in separate rooms. The media-
tor had spoken with us and then with the union.
Mr. DeMaio and Mr. LaMere came in about 11 in
the morning, and we sat across from each other,
and I believe it was Rocci [sic] that said, we'd like
to do something to get this matter off dead center.
He said that the people needed some proof.
Q. Proof about what?
A. Proof that we're losing money.
Q. And what did you tell him?
A. Well, I didn't tell him anything. I asked him
what was wrong with our June 22nd offer. [As
noted above, Alden was not present at the June 22
meeting.]
Q. And what did he say?
A. His response was, all we get to see is the bal-
ance sheets, and I very unceremoniously said,
excuse me, bullshit. Your auditors get to get togeth-
er with our auditors to verify that the balance
sheets that you were shown [Alden was not present
at the June 27 meeting] accurately reflect the losses
that are shown in there.
Q. And what was Mr. DeMaio's response to that?
A. Well, he asked more questions like-I believe
the next question was, what does that mean we get
to see? At that point I says, I'm not sure. I said, as
far as I understand, there aren't any real outside
limitations on the offer. It's kind of between the
auditors. You've got certain information you want
to know, want to find out about. We can't think of
anything we're particularly anxious to hide, and
then I said, the only thing I can think of right off
the top of my head is the specific salaries of admin-
istrative personnel. I said, if that becomes relevant,
then what we'd propose is that you're given a lump
sum figure for administrative salaries , and that
should suffice. Rocci [sic] said, fine, and he said, we
just need to know that you're losing money, and
then he said, we didn't want to buy a pig in a poke.
Belland first testified that at this meeting Cowin "again
renewed the offer to have their accountant come in and
look at the statements . . . . We repeated the same offer
that was issued in the prior June.", Subsequently, Belland
testified, after a recess, that "[t]he offer on the books was
again presented on the 17th because their auditor called
me on October 19th." Belland testified that arrangements
were not made at that time for an audit by the Union's
CPA because of scheduling conflicts, and an audit never
took place because Cowin "went out of business."
DeMaio testified that a meeting between the Union's
CPA and Cowin's CPA was scheduled for November 14
but the meeting was never held. Regarding this arrange-
ment DeMaio testified as follows:
II DeMaio testified that he understood this to be different from
Cowin's June 22 offer because then Cowin was only offering to let the
Union 's CPA meet with Cowin's CPA to go over the profit -and-loss
statement and nothing else
Q. And to your knowledge, did in fact the UE
CPA examine the records?
A. No.
Q. And what occurred?
A. On November 11th, I believe it was a Friday,
my CPA called us up and said that she was just
called from just received a phone call from Jim
Belland saying that she's not required to come
down because they're going to contact the union
and set up a meeting on the 14th to settle the con-
tract.
Q. Were you aware of any development?
A. I said it was a surprise to me, and I didn't
know nothin' about it, but I'm glad that we're going
to get it settled, and that, you know, you don't have
to come in, you know.
Q. Did you do anything as a result of her tele-
phone call?
A. I called Jim Belland up.
Q. And what did you say?
A. I asked him what's going on, and he said we
want to get this thing settled and we don't think
she's needed to come in. I says, thanks, I'll see you
on the 14th to settle the agreement then.
Belland testified that he did not tell DeMaio that there
would be a contract for him at the November 14 meet-
ing, and that although he communicated on occasion
with DeMaio by letter and phone Belland did not recall
talking to DeMaio just before the meeting of November
14. Alden testified that he called DeMaio and told him
that Alden wanted "to put the auditor's visit off until
after the November 14 meeting because we need to talk
about some important things , and . . . [DeMaio] might
change . . . [his] mind on the need for an auditor to
visit."
At the November 14 meeting , Alden read the follow-
ing (R . Exh. 4):
TO: UE Local 1139
FROM : Cowin & Company, Inc.
DATE: November 14, 1983
The purpose of this meeting and communication
is to inform you that a decision has been made by
Frank Skog, owner of Cowin & Company, that we
will, in all likelihood , be closing the doors and ceas-
ing production in the near future.
There are a number of reasons for this decision,
all of them purely economic . We have, as you
know, sustained substantial losses during 1981, 1982,
and 1983 . Moreover , the winter months, during
which we have historically lost money , are almost
upon us, threatening almost certain additional losses.
Finally, there is nothing in the immediate future
which offers any encouragement to those engaged
in steel fabrication.
As a result of the above, we are unable to
borrow money to continue operating , unless Mr.
Skog personally guarantees the loans . At this point
in time and his life, Mr . Skog is, understandably, no
longer will to do that.
COWIN & CO.
We have no definite date set, but we expect that
we will close before Christmas . We will let you
know when we are certain . Layoffs will probably
begin by the end of the month.
We are here to permit you the opportunity to ne-
gotiate the effects of this closure on the bargaining
unit employees . Considering the behavior of the em-
ployees during the past four ,months, the company
isn't inclined to be terribly generous . However, we
invite you to make your proposals . We will consid-
er them; and, bear in mind that working hard
during the last few weeks will enhance our recep-
tiveness to your proposals.
The Union caucused and then asked Alden a number of
questions regarding the proposed shutdown . Again the
Union caucused and then it submitted to Alden its pro-
posals regarding Cowin going out of business . (R. Exh.
5.) Additionally , the Union orally requested Cowin's
sales data, cost data , and profits and losses for the last 10
years . Alden refused indicating that the original offer
was still open.
The following day, November 15, DeMaio forwarded
a two-page letter (R. Exh . 6), to Alden asking 14 ques-
tions regarding the shutdown , requesting that Cowin re-
spond in writing to the Union 's November 14 written
proposals , and further proposing that Cowin agree that
any sales agreement contain a provision requiring the
buyer to continue the employment of the present Cowin
employees. Alden replied by letter dated November 21
(R. Exh . 7). Portions of the response read as follows:
13. The company is not asking the union to give
up any of its rights. The company offered the union
the opportunity to have its auditor meet with our
CPA and review whatever documents were neces-
sary to verify that the information we had revealed
to you on our balance sheets and financial state-
ments was correct. You were also told that whether
additional supporting data would be available
would be up to the people involved in the review
of the records . This offer was repeated to you on
October 17 , 1983 and finally accepted.
I did not ask you to forgo this right . I asked you,
when we spoke by telephone prior to our Novem-
ber 14 meeting, to delay the "audit " until after we
met on November 14 in the event the meeting
changed your mind as to the necessity for such an
audit. I was merely seeking to save the company
and the union what might have been an unnecessary
expense. I still perceive it as a colossal waste of
time and money , but you have the right to follow
through.
Finally, if the company were to agree that any
sales agreement contain a provision requiring the
buyer to continue the employment of the present
Cowin & Company, Inc. employees , there would be
no sales agreement . I have clients who hire from
penitentiaries with a higher caliber of employees
than those you represent . If they were all like Mr.
813
LaMere, this proposal might be more palatable. Un-
fortunately , that is not the case.
There is not a chance in hell that I would ever
agree to such a proposal . The chances of someone
purchasing this operation are slim enough as it is.
All in the involved unit were laid off in 1983.
Subsequently , by letter dated February 3, 1984 (G.C.
Exh. 46), DeMaio made the following request of Belland:
Please provide our union with a detailed profit and
loss statement for the last two (2) years to verify
that Cowin & Co ., Inc. is losing money causing
them to go out of business.
By letter dated February 6, 1984 (G.C. Exh . 47), Bel-
land made the following reply:
Our offer to have your CPA meet with our CPA is
still open . I remind you that , as we told you when
we met on November 14, 1983, whether and to
what extent we are losing money is irrelevant at
this point. The decision has been made to close.
Your request of February 3, 1984 is respectively re-
fused.
Then DeMaio forwarded the following letter to Bel-
land (G . C. Exh. 48), dated February 13, 1984:
Thanks for your offer to have our CPA meet
with your CPA , but,the costs of our CPA coming
out now is prohibitive under the circumstances.
As an alternative , please send us a copy of your
balance sheets with a profit and loss statement cov-
ering the past eighteen (18) months . If you calculate
your profit and losses on a monthly basis „ please
provide us each of those statemnets for the period
requested.
And Belland replied on February 15, 1984: "[o]ur re-
sponse to your letter dated February 13, 1984 is the same
as our response dated February 6, 1984." (G.C. Exh. 49.)
B. Contentions
On brief, the General Counsel contends that Respond-
ent was clearly raising the type of claim of financial inca-
pacity that triggers a right of a union to request and re-
ceive financial information ; that the Board has never
held that only the magic words of "poverty " or "'inabil-
ity to pay" or "inability to compete " give rise to such an
obligation; that from its first proposal on May 2 and con-
tinuing to the unlawful implementation on July Ill, Re-
spondent consistently referred to its poor financial condi-
tion and asserted that this was due to the wage and bene-
fit rates and work restrictions set forth in the expired
contract; that Respondent asserted that its survival was
questionable and that it was having difficulty in winning
bids because contractors looked only at the "bottom
line"; that the Board has frequently considered cases
where the Employer has asserted variations on the "in-
ability to pay " theme quite similar to those made therein;
that in NLRB v. Truitt Mfg. Co., 351 U.S. 14'9, 152
(1956), the Supreme Court stated:
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims . . . . If such an argument is important
enough to present in the give and take of bargain-
ing, it is important enough to require some sort of
proof of its accuracy.
The basic principles underlying Truitt are not any less
applicable because Respondent expressed the view that
wage increases would lead to impoverishment rather
than the view that such increases were precluded by a
present impovershipment, Cincinnati Cordage & Paper
Co., 141 NLRB 72, 77 (1963); that an examination of
statements and representations made by the employer in
Truitt indicates that it made virtually identical claims of
competitive disadvantage as are being advanced by Re-
spondent in the instant case and in Truitt the Board and
Supreme Court held that full disclosure was required;
that in Stanley Building Specialties Co., 166 NLRB 984
(1967), enfd. 401 F.2d 434 (D.C. Cir. 1968), the employer
complained that the proposed increases would jeopardize
its competitive position and that the previous year had
been below the projected level (although it had made a
profit), and it was determined that the union was entitled
to demand information since the employer's position was
equivalent to a claim of inability to pay; that in Taylor
Foundry Co., 141 NLRB 765 (1963), the Board noted
that while a mere statement of competitive disadvantage
due to higher wages was not necessarily a claim of in-
ability to pay, a further statement by the employer that it
"couldn't exist" due to the disparity constitutes a clear
statement of poverty triggering the obligation and re-
quirement to produce full financial information; that Re-
spondent's position that it cannot increase costs because
the continued depression will make it impossible to oper-
ate at some future date is also a claim of "inability to
pay" within the meaning of Truitt; that there should be
no conceptual reason why Respondent's claims, namely,
that needed union concessions as to the flexibility of
work rules because they made the Respondent noncom-
petitive, should be any less of a trigger to the obligation
and duty to furnish information; that therefore Respond-
ent did assert claims concerning its financial inability to
meet the Union's contract proposals and that it was
therefore obligated to corroborate such financial infor-
mation beginning on May 2 and continuing on every op-
portunity thereafter; that Respondent did not agree to
provide full access to the requested financial information
until October 17, 3 months after it had unilaterally imple-
mented its "last, best and final" offer; that this offer of
access to the financial information was nonetheless can-
celed on November 14; that at no time did Respondent
meet its bargaining obligation to provide the full finan-
cial data prior to the unilateral implementation on July
11; that Respondent did not take any step to even offer
to satisfy its legal obligations prior to October 17; that it
was not until June 22 that Tate said "they would show
their profit and loss statement to [the union] CPA" but,
the Union's CPA was not to be entitled to examine or
review any supporting documents or data; that this
denial of access was reiterated by Tate on June 27; that
even Tate's letter of June 28 reveals Respondent's posi-
tion that "we offered to show our balance sheets"; that
while Tate claims that on June 27 he gave the union
committee two multipaged financial documents for their
review and examination, Belland's notes of the June 27
meeting fails to produce any reference or mention of Re-
spondent Exhibits 1 and 2; that:
the claims and testimony of witness[es] Tate and
Alden must be further viewed with extreme caution
due to their relationship to the case. As Tate con-
ceded on cross-examination it is the firm "Tate and
Alden" (of which he is a partner) which represents
Respondent in the trial of the unfair labor practice
charge. Further, Tate and Alden were two of the
three witnesses called by Respondent to testify on
its behalf. Although Tate claims that he is personal-
ly not charging legal fees for his testimony, he did
concede such an arrangement did not apply to
Alden's testimony . . . . For all the reasons out-
lined above it is submitted that the Court should
disregard the testimony and purported claims of
witnesses Tate and Alden.
I find that neither the limited offer of a financial state-
ment (which was never provided) for the eyes only of
the Union's CPA nor the mere provision of data on com-
petitors can be viewed as satisfying Respondent's obliga-
tion; that the Union was entitled to general access to the
Employer's records, unless there are specific reasons of
confidentiality or burdensomeness which have been as-
serted or proved by Respondent; that Respondent did
not merely note the differences in labor costs between
itself and its competitors but asserted those differences
threatened its very survival; that in such cases, the Board
has held that more is needed than a mere comparison of
relative costs and an employer's refusal as in Truitt,
supra, to give anything more than data on its competitors
was unlawful; that similarly, the mere offer of a balance
sheet and statements without the backup documentation
has often been held to be insufficient, Metlox Mfg. Co.,
153 NLRB 1388, 1334-1335 (1965), enfd. 378 F.2d 728
(9th Cir. 1967), cert. denied 389 U.S. 1037 (1968); that
where, as here, an employer has failed to bargain in good
faith by refusing to provide required financial informa-
tion and data, a bona fide impasse cannot be found to
have existed on July 11; that, therefore, Respondent's im-
plementation of its "last, best and final" offer on that
date likewise violated Section 8(a)(1) and (5); that Re-
spondent's own documents establish that employees were
permitted "to conduct Union business on Company time"
and the Union's business agent was "permitt[ed] unlimit-
ed access to [the] facilities"; and that the employer with
its announcement of August 9 that it was changing the
terms and conditions of employment governing the em-
ployee's union activities (upon which there had been no
previous restriction) without giving the Union advance
notice and an opportunity to bargain about the
changes-unilaterally changed the terms and conditions
of employment in violation of Section 8(a)(1) and (5) of
the Act.
Respondent on brief argues that the question of wheth-
er it had a duty to furnish financial information to the
COWIN & CO 815
Union is predicated upon a determination that Respond-
ent had placed in issue either its ability to pay or com-
pete ; that an employer 's financial status becomes relevant
only when the employer , through its bargaining posture
makes it relevant ; that here Respondent simply refused
to continue paying the existing wgae rates and benefits
contained in the contract and insisted on a reduction in
the rate it was paying its employees ; that this is not the
equivalent of a plea of inability to pay or compete; that
the issue is whether , under the circumstances , the em-
ployer , by its conduct , is doing violence to the principles
of good -faith bargaining ; that , while there was much dis-
cussion of competition and of the impact of nonunion
shops on Respondent 's markets , Respondent did not
plead inability to compete ; that Respondent did say
clearly and repeatedly that it would not continue to offer
the wages and benefits it had paid in the past and ex-
plained its position to the Union in terms of the general
state of the construction industry and the problems par-
ticular to steel fabricators in the Twin Cities area; that
Respondent also said that it would not continue to pay
the contractual wage rates because they were not justi-
fied ; that wages and the benefits as they related to Re-
spondent 's competitive posture were only a small part of
Respondent 's rationale , and these items came up for dis-
cussion only when the parties were talking about what
Respondent was paying as opposed to what it under-
stood others were paying ; that Respondent did not link
its economic position to wages alone ; that Respondent
did not plead inability to pay , simply unwillingness; that
it did not plead inability to compete , but rather expressed
a strong desire to look more like its competitors ; that Re-
spondent 's offer of financial information fully met the re-
quirements established by the Union ; that an employer
has no duty to bare its books to any union or employee
representative ; that the requirements of Truitt , supra,
phrased in terms of adequate substantiation , not complete
disclosure : "The inquiry must always be whether or not
under the circumstances of the particular case the statu-
tory obligation to bargain in good faith has been met;"
that Respondent had genuine concerns about releasing
extensive financial information to the union bargaining
committee and through them to the bargaining unit em-
ployees ; that Respondent felt that it could minimize its
risks by ensuring that the discussion of its financial
records was carried on among people trained in account-
ing and qualified in their profession; that the Union un-
derstood and accepted Respondent 's concern about the
confidentiality of its financial records and offered to sign
a statement that it would protect the confidentiality of
the material ; that while it is true that Respondent placed
limits on what it would disclose and to whom such dis-
closure would be made , facts Respondent freely admits,
nothing in Respondent 's proposals for disclosure was
unduly restrictive or burdensome to the Union ; that the
Union never raised any specific objection to the pro-
posed disclosure format; that the offer of financial disclo-
sure that the Union ultimately accepted on October 17
was no different from the one made originally on June
22 and that had remained open and available to the
Union throughout the intervening months; that DeMaio's
statement that the June 22 offer would allow the Union's
CPA to see only the balance sheets and nothing else,
whereas the October 17 offer would entitle the Union's
CPA to go through all Respondent 's books and records,
should not be credited ; that the June 22 offer was not so
narrow and the restatement of that offer on October 17
was not so broad ; that DeMaio 's testimony on the com-
parative scope of the June 22 and October 17 offers
should not be credited because , when asked whether he
understood the offer of financial information made at the
June 22 meeting , DeMaio answered "No"; that Respond-
ent's conduct during negotiations for a new collective-
bargaining agreement indicates that it bargained with a
sincere desire to reach accommodation with the Union;
that prior to the implementation of Respondent's final
offer on July 11 , the parties had met to bargain on nine
separate occasions; that the parties reached agreement on
a substantial number of contract provisions including ar-
ticles 1-5, 15-17, 22-23, 25-28 and part of article 7 on
definitions of classifications , covering shop leadman,
welder fitter , welder class A & B, and painter class A &
B; that on June 28 Respondent declared impasses because
it was confronted by a stone wall because the Union had
not accepted Respondent 's offer of financial information,
yet it had made no objection to the proposed format and
had objected to the scope of the offer with only the
vague statement at the bargaining table that the offer did
not include "everything" while at the same time, it re-
fused to bargain on issues it deemed economic , absent
the financial information ; that the fact that the parties
were at an impasse is supported by the Union's own
statement in its letter of July 5 that negotiations were at
a "log jam"; that when asked what he understood the
term "log jam" to mean, DeMaio responded , "We are
both at loggerheads and that nobody is moving"; that the
contemporaneous understanding of both the Union and
Respondent as to the state of negotiations was that im-
passe had been reached ; that a finding that Respondent
unilaterally implemented new work rules in derogation
of the Union 's status as exclusive representative of the
employees must be predicated upon a determination that
no impasse had been reached and that the parties were
not operating under the terms of the agreement em-
bodied in Respondent's final offer ; that the management-
rights article (art. 29) of the final offer was controlling
on this issue and the notice of August 9 was an exercise
of the right reserved therein ; and that , nonetheless, in an
effort to remove an area of potential conflict with the
Union , Respondent rescinded the notice and offered to
meet with the Union's representatives to discuss the
problems that had prompted the notice.
Analysis
In my opinion Respondent violated the Act when it
refused to furnish the Union with relevant financial in-
formation. Accordingly , Respondent's subsequent imple-
mentation of its "last, best and final" offer also violated
the Act. And finally , for the reasons set forth below, Re-
spondent violated the Act when it unilaterally changed
the terms and conditions of employment on August 9.
All things considered , and despite assertions to the
contrary by Respondent , its position regarding wages
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the involved negotiations must be described, in
the final analysis, as "could not" afford an increase
rather than "would not" agree to any increase.
As pointed out in the separate opinion of Justice
Frankfurter in NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956), antecedent events can explain behavior at the bar-
gaining table. About 1 year before its last contract with
the Union terminated, Cowin "sought to withhold the
dollar increase called for in the contract and offered to
show the Union its books." (G.C. Exh. 32.) Cowin was
experiencing losses at the time and it unsuccessfully at-
tempted to obtain relief from the Union.
When Tate submitted his statement of position to the
Board on August 15 (G.C. Exh. 50), regarding the in-
volved negotiations he indicated: "We said we are losing
our shirts and didn't think we'd be in business in the
future if that continued . . . . and that we wanted some
relief."16 Respondent's insistence that it did not plead
"inability to pay" seems to place a great deal of
weight-too much in fact-on what it seems to believe is
the panacea obtained if one can avoid expressing what
Tate ostensibly believes are the magical words. Sub-
stance should not be subverted by form. As noted above,
DeMaio succinctly stated in his July 5 letter to Tate
(G.C. Exh. 30), "Mr. Tate, you have been talking out of
both sides of your mouth, one by saying you are losing
money and can't be competitive and the other side by
saying we are not pleading poverty and we are competi-
tive."
As indicated by Administrative Law Judge Bernard
Ries in Latimer Bros., 242 NLRB 50, 51 (1979):
The duty to bargain required of an employer by
Section 8(a)(5) includes the obligation to furnish to
a union information necessary or relevant to the
representative functions of the Union. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967). In the
normal course, an employer's financial records are
not presumptively relevant to the union's require-
ments and need not be produced upon demand. But
an employer may make such data relevant to nego-
tiations by asserting, as a reason for rejecting a
union's demands, that it is unable to afford them.
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
At that point, unless the union is able to review
the records in an effort to prove or disprove the
16 As noted above, Tate went on in the same paragraph to assert the
following: "We didn't plead poverty We didn't plead inability to pay-
just unwillingness . And we didn't plead inability to compete-lust a
desire to look more like our competitors So I don't believe any duty ex-
isted on our part to furnish financial data " Notwithstanding the fact that
Cowin put into effect its "last, best and final" offer which substantially
reduced the involved wages and other benefits, Cowin decided to go out
of business within months declaring "[t]here are a number of reasons for
this decision , all of them purely economic. We have, as you know, sus-
tained substantial losses during 1981, 1982, and 1983 " Obviously this oc-
curred after the involved negotiations. But it is noteworthy because 1
year before the negotiations commenced Respondent, in effect, pleadded
inability to pay the contract wage rate, during negotiations it indicated it
was "losing [its shirt" and did not think it could continue without some
relief, and shortly after negotiations-even after unilaterally obtaining the
relief--it decided to go out of business Both antecedent and subsequent
events demonstrate that this was a "could not" rather than a "would not"
situation
claim, it is placed in an untenable position. It cannot
itself develop evidence to dispute the contention, as
it might do with almost any other objective argu-
ment made by the employer, and it cannot very sat-
isfactorily explain to its constituents that they must
lower their sights and accept as an article of faith a
fact often doubted by workingmen-that their em-
ployer is in financial straits. Moreover, the assertion
of poverty, coupled with a refusal to substantiate
that claim, might often engender a climate of su-
spicision inimical to peaceful settlement of labor dis-
putes. As the Supreme Court stated in Truitt Mfg
Co., supra, 351 U.S. at 152-153:
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 agreement is
important enough to present in the give and take
of bargaining, it is important enough to require
some sort of proof of its accuracy.
About 1 year before the involved negotiations began
Cowin made its monetary losses an issue between it and
the Union, going so far as to offer the Union an opportu-
nity to look at Cowin's financial records, And at the
outset of the involved negotiations Cowin advised the
Union that there was "a real question of whether .. .
[Cowin] shall be in business . . ." unless it could obtain
wage and other concessions, and that without certain
concessions it would, be prevented from "meaningfully
engaging competitively with those who do not have the
burdensome restrictions of a union contract."
In substance what Cowin was asserting was that it
could not afford the Union's demands. In other words,
Cowin, in effect, sought to justify its refusal of the
Union's demands, in part, on an economic basis. Cowin,
therefore, made its financial position relevant to negotia-
tions. Good-faith bargaining required that Cowin sub-
stantiate its economic position with reasonable proof.
The most that the union representatives ever actually re-
ceived was a verbal statement from Tate regarding
Cowin's losses for 1981, 1982, and a part of 1983. Before
this hearing, Attorney Tate never presented the union
representatives with balance sheets and profit-and-loss
statements covering the above-described period. The
union representatives present at the involved meeting are
credited on this point. Attorney Tate and Belland are
not. Belland's written notes of the meeting do not refer
to the documents and those of Attorney Tate's subse-
quent writings, which were drafted shortly after this
meeting, fail to corroborate his and Belland's testimony
herein. Attorney Tate's testimony about what did or did
not occur and what was or was not said at the involved
meeting demonstrates how incredible his testimony is re-
garding these documents. Attorney Tate did not impress
me as being a credible witness. Belland fared no better.
At the outset of negotiations Tate advised the union
representatives that Cowin's financial books and records
would not be made available to the Union. Neither the
union representatives nor the Union's CPA ever saw
Cowin's financial books and records. Apparently offers
COWIN & CO.
were made regarding the books and records but contrary
to Tate's position taken at the outset , viz., that all pro-
posals would be in writing so as to avoid any misunder-
standing, such offers were not made unequivocally in
writing by Tate and tendered to the union representa-
tives before Respondent implemented its "last , best and
final offer." Such a procedure is not required by law. Its
absence, however , in these circumstances points out
Tate's true intent. Respondent did not bargain in good
faith and, therefore , violated Section 8(a)(5) of the Act in
refusing to provide the Union with access to its relevant
books and records.
Respondent cites a number of cases all of which can
be distinguished in that they do not involve situations
where the employer had continuing and substantial finan-
cial losses which caused it to (1) seek to have the union
grant wage concessions during the last year of the prior
agreement with the employer offering to let the union
look at its financial books and records and (2) place the
union on notice , at the outset of negotiations , that there
was a "real question of whether ... [Cowin would] be
in business at the termination of this contract unless prior
contractual concepts are radically changed ." Here, re-
garding the economics involved , Respondent sought to
convince the Union , without explicitly saying it , that not
only could not Respondent grant the economic package
sought by the Union but unless concessions , including
economic concessions , were made , there was a "real"
question of whether Respondent could continue in busi-
ness.
The bargaining impasse between the Union and Re-
spondent was speciously created by the Respondent's re-
fusal to give the Union financial data . Respondent violat-
ed its duty to bargain in good faith . There was no bona
fide impasse. Consequently , Respondent violated the Act
when it unilaterally implemented its "last , best , and final
offer" on July 11.
Finally , Respondent 's August 9 change of terms and
conditions of employment without first giving the Union
notice and an opportunity to bargain about the changes
was made in violation of Section 8(a)(1) and (5) of the
Act.
CONCLUSIONS of LAw
1. Respondent Cowin & C o., Inc . is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Electrical, Radio and Machine Workers of
America, U.E. and its Local 1139 is a labor organization
within the meaning of Section 2(5) of the Act, and it is
the exclusive representative for purposes of collective
bargaining for the following employees of the Respond-
ent:
All factory and yard employees employed by the
Employer at its New Brighton , Minnesota , facility
including maintenance mechanics , leadmen, me-
chanics, painters , welders , machine operator learn-
ers, and helpers or beginners ; excluding all office
clerical employees, professional employees , guards
and supervisors as defined in the National Labor
Relations Act.
817
3. By engaging in the following conduct Respondent
committed unfair labor practices contrary to the provi-
sions of Section 8(a)(1) and (5) of the Act:
(a) Refusing since about May 18 , 1983, to provide the
Union with access to books and records relating to Re-
spondent 's claim of financial inability to meet the Union's
demands.
(b) Failed and refused about July 11, 1983, to bargain
in good faith by unilaterlaly changing ; the rates of pay
and other terms and conditions of employment of certain
of its employees in the involved unit by implementing its
final offer after engaging in bad -faith bargaining " with the
Union as described in (a) above , and without having ex-
hausted the collective-bargaining process and without
having reached a bona fide impasse in negotiations.
(c) Failed and refused to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the involved unit in that about August 9,
1983, Respondent unilaterally , without prior notification
to the Union and without affording the Union an oppor-
tunity to negotiate and bargain , implemented a new work
rule restricting the right of employees during working
time to see their union steward , restricting the right of
the steward to process grievances during working time,
and restricting the right of employees in the unit to talk
with visiting union representatives during working time.
4. The unfair labor practices found above affect com-
merce within the meaning of the Act.
THE REMEDY
Having found that Respondent violated the Act as de-
tailed above , I shall recommend appropriate remedial
relief, including the issuance of a cease-and-desist order
and the mailing of a copy of the attached notice to the
last address of any employee who worked in the produc-
tion and maintenance unit at any time on or after July
11, 1983.
The General Counsel , on brief, contends that. the clos-
ing of Respondent 's plant does not moot the Union's
right to the information it sought ; that the Board has
held that requiring the furnishing of financial informa-
tion, even belatedly , prevents Respondent from profiting
by its unfair labor practice , and discourages Respondent
from engaging in frivolous denials of required informa-
tion; that Respondent should not be permitted to evade
its obligation by merely refusing to comply until such
time as intervening events may reduce the necessity for
such information ; and that , therefore, the Union should
be entitled to financial records and information up to De-
cember 1983.
Under the above-described circumstances the approach
is appropriate . It will be recommended that Respondent
be required to make available to the Union , if it so re-
quests , the financial data requested up to and including
that for calendar year 1983.
It will also be recommended that all the involved em-
ployees be reimbursed for any loss in wages and benefits
they may have suffered as a result of Respondent's uni-
lateral changes made on July 11, 1983, through the time
that the employees were laid off . Any backpay due will
be determined in accordance with the formula set forth
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in F. W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumb-
ing Co., 138 NLRB 716 (1962); and Florida Steel Corp.,
231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Cowin & Co. Inc., New Brighton,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Elec-
trical, Radio and Machine Workers of America, U.E.
and its Local 1139, by failing to furnish information re-
quested by this Union to substantiate Respondent' s claim
of inability, to afford the collective-bargaining proposals
advanced by the Union.
(b) Unilaterally implementing the terms of a collective-
bargaining agreement without having exhausted the col-
lective-bargaining process and without having reached a
bona fide impasse in negotiations.
(c) Unilaterally, without prior notification to the
Union and without affording the Union an opportunity
to negotiate and bargain , implementing new work rules.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union, on request and within a reason-
able time, the financial information and records relevant
to Respondent's claim advanced in 1983 that it was fi-
nancially unable to meet the Union's bargaining de-
mands.
(b) On request, rescind the changes in work rules
made on August 9, 1983.'
(c) Make whole all employees for any loss in wages
and benefits they may have suffered as a result of Re-
spondent's unilateral implementation on July 11, 1983, of
its "last, best and final" offer through the time that the
employees were laid off.
(d) Preserve and, on request, make available to the'
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary'to analyze the amount of backpay due under the
terms of this Order.
(e) Mail a copy of the attached notice marked "Ap-
pendix"18 to the last known address of any employee
17 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
who worked in the involved unit, as set forth above, at
any time on or after July 11, 1983. Copies of said notice
on forms provided by the Regional Director for Region
18, after having been signed by an authorized representa-
tive of Respondent, shall be mailed by Respondent im-
mediately upon receipt thereof.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 protect-
ed concerted activities.
WE WILL NOT do anything that interferes with these
rights. More specifically
WE WILL NOT refuse to bargain collectively with the
United Electrical, Radio & Machine Workers of America
in conjunction with and on behalf of its Local 1139, UE,
as the exclusive representative of our employees in the
following bargaining unit:
All factory and yard employees employed by the
Employer at its New Brighton, Minnesota, facili-
ty including maintenance mechanics, leadmen,
mechanics, painters, welders, machine operator
learners, and helpers or beginners; excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the National
Labor Relations Act.
WE WILL NOT refuse, on request, to furnish the infor-
mation requested by the Union relating to our claim of
inability to pay wage increases and other benefits re-
quested by the Union.
WE WILL NOT unilaterally implement the terms of a
"collective-bargaining agreement" without having ex-
hausted the collective-bargaining process and without
having reached a bona fide impasse in negotiations.
WE WILL NOT change your work rules, wages , hours,
or other terms and conditions of employment without
first bargaining with the Union to agreement or to im-
passe about such changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
COWIN & CO
WE WILL, on request and within a reasonable time,
furnish the Union with all books and records containing
financial information relevant to the substantiation of our
claims of financial incapacity up to the end of 1983 to
meet the Union 's bargaining demands.
WE WILL reimburse all our employees for any loss in
wages and benefits they may have suffered , with interest,
as a result of our unilateral changes we made on July 11,
1983, through the time that the employees were laid off.
819
WE WILL, on request , rescind the changes in work
rules concerning union activities on worktime.
WE WILL mail a copy of this notice to the last known
address of any employee who worked in the production
and maintenance unit at any time on and after July 11,
1983.
COWIN & CO., INC.