Deblin Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jan 15, 1974

208 N.L.R.B. 392 (N.L.R.B. 1974)

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deblin Manufacturing Corporation and Local 28A,
Metal Production and Novelty Workers' Union,
International Brotherhood of Painters and Allied
Trades, AFL-CIO. Case 29-CA-3035
January 15, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On July 25, 1973, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge it is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was tried before me in Brooklyn , New York, on May 21,
22, 30, and June 5 , 1973. The charge was filed on
September 14, 1972, and on November 30, 1972, the
Regional Director for Region 29, issued a complaint
thereon , alleging that Respondent had violated Section
8(a)(5) of the Act since April 5, 1972, by negotiating in bad
faith and with no intention to enter into a final and binding
collective-bargaining agreement, and thereafter by with-
drawing recognition and refusing to bargain with the
Union . The Respondent filed an answer denying the
commission of the alleged unfair labor practice, and
requesting dismissal of the complaint in its entirety.
Prior to the opening of this proceeding before me, the
Respondent, on February 20, 1973, filed with the National
Labor Relations Board in Washington, D.C., a motion for
summary judgment dismissing the complaint in its entirety.
In support of said motion, Respondent contended that the
instant complaint rested upon allegations which were
previously determined or should have been discovered in
an earlier unfair labor practice proceeding, Case
29-CA-2717, involving the same parties, and that there-
fore, the Board, under the precedent in Jefferson Chemical
Company, Inc., 200 NLRB No. 134, should issue a decision
and order dismissing the complaint in its entirety or grant
such further relief as may be appropriate.
On November 30, 1972, the Board issued an order
transferring proceeding to the Board and notice to show
cause as to why the Respondent's motion should not be
granted in whole or in part on the basis of Jefferson
Chemical, Inc., supra. The General Counsel filed a response
urging that the cited decision is inapposite herein.
On April 17, 1973, the Board issued an order denying
motion for summary judgment and remanding proceeding
to Regional Director, ruling that the issue raised by the
motion "may better be resolved in connection with a
hearing conducted by an Administrative Law Judge. . .
At the outset of the hearing, and on several occasions in
the course thereof, the Respondent renewed its motion to
dismiss, which was initially denied by me on the grounds,
inter aha, that summary dismissal was foreclosed by the
Board's order of April 17, 1973. At the close of the hearing
and in its brief, Respondent again urged dismissal on the
basis of Jefferson Chemical Company, inc., supra. In the
view I take of the case upon consideration of the entire
record in the light of the pleadings, it is unnecessary to
reach the Jefferson Chemical issue . However, in my analysis
of the merits of this case , I will subsequently refer to the
cited case and express my views as to its relevance to the
instant proceeding.
Upon the entire record in this proceeding, including the
posthearing briefs filed by the General Counsel and
Respondent, and based upon my observation of the
witnesses and their demeanor while testifying, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation with a principal
office and place of business located in County of Kings,
New York City, New York, where it is engaged in the
manufacture , sale, and distribution of dies for aluminum
extrusions and related products . During the year preceding
issuance of the instant complaint , Respondent, in the
course and conduct of said operations , sold products
valued in excess of $100,000, of which ( 1) products valued
in excess of $30,000 were shipped from said place of
business to States other than that in which Respondent is
located , and (2) an additional $35,000 were sold to other
enterprises each of which annually produce goods valued
in excess of $50,000 which are shipped directly out of the
State in which said enterprises are located.
The complaint alleges , the answer admits , and I find that
208 NLRB No. 24
DEBLIN MANUFACTURING CORPORATION
Respondent is, and at all times material herein has been,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent at the hearing
conceded, and I find that Local 28A, Metal Production
and Novelty Workers' Union, International Brotherhood
of Painters and Allied Trades, AFL-CIO, is a labor
organization within the meaning of the Act.
III. THE ISSUES
Did Respondent lawfully withdraw recognition and
refuse to bargain on grounds that a decertification petition
had been filed and the Union no longer represented a
majority of the employees in the appropriate unit; or did
such action constitute an unfair labor practice either
because:
(a) Preceded by collective-bargaining negotiations, in
which Respondent acted in bad faith and with no intention
of entering a final and binding collective-bargaining
agreement, or because
(b) Such action occurred during the pendency of an
earlier unremedied unfair labor practice based upon
alleged promises of benefits and unlawful direct dealing
with employees.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent and the Union have had a bargaining
relationship with respect to the former's production and
maintenance employees for some 15 years.2 Prior to the
events here in issue, successive collective-bargaining
agreements were negotiated and executed apparently in a
spirit of amity and clearly without serious incident.
However, the most recent of said contracts expired on
October 31, 1971. Prior thereto in September 1971,
Respondent was notified by the Union of the latter's
intention to reopen the agreement to negotiate changes and
additions. By letter dated September 24, 1971, the Union
outlined its demands. Pursuant thereto, formal negotiating
meetings were held in 1971 on October 8 and 20,
November 22, December 2 and 14; and in 1972, on
January 5, 20, 26, 27, and 30, February 24, March 1 and 28,
and April 4. In the interim, a strike commenced on January
20, 1972, and continued until April 12, 1972, when all those
actively participating in the economic action against
Respondent voluntarily and under noncoercive conditions
applied for and were granted reinstatement without change
in their prestrike level of wages and working conditions.
On April 18, 1972, an RD petition supported by all of the
reinstated strikers was filed. At that time, the production
and maintenance unit consisted of five employees. Of the
five, three were the participants in the strike against
Respondent, and it is apparent from the record that the
remaining two were nonsupportors of the strike. Subse-
i Siemons Mailing Service, 122 NLRB 81, 85
2 The unit is small, consisting of only 5-6 employees during times
material to this proceeding
393
quently, Respondent withdrew recognition and refused to
engage in further negotiations with the Union on the stated
ground that the Union no longer represented a majority.
Stripped of complexities, the basic issue in this case is
whether Respondent was precluded by virtue of its prior
conduct, from asserting the Union's loss of majority or the
decertification petition as a defense to its ultimate
curtailment of bargaining.
B. The Negotiations and Related Matters
On September 24, 1971, the Union, pursuant to its earlier
requests for negotiation, by letter, submitted a list of
changes and amendments to the subsisting contract to
Emanuel Helfand, Respondent's president. A variety of
benefit increases were sought, but of prime significance
here is the Union's demand for increased welfare and
pension contributions. Under the prior contract, Respon-
dent was obligated to contribute 4 percent of its weekly
payroll to a jointly administered welfare fund,3 and an
additional 4 percent of the weekly payroll to a jointly
administered pension fund. Parenthetically, I note that
though the unit in question here was limited in scope to the
employees of Respondent, the pension and welfare funds
were multiemployer programs. Yet, according to the
Union's practices, the terms of these trust funds were not
negotiated with the individual employer-participants, but
were embodied in a declaration of trust which each
employer normally agreed to incorporate by reference into
their individual collective-bargaining agreements . There-
fore, in this regard, it was the Union's practice to limit
negotiations with the individual employers to the amount
of contributions. With respect to such contributions, the
Union, in the instant negotiations, sought an increase in
the percentage of payroll contributions on welfare to 11
percent, or an increase of 7 percent, and on retirement, it
demanded a raise to 5 percent or an increase of 1 percent.
This was coupled with a demand for a 50-cent hourly
increase in wages in each of the 3 years of the proposed
contract, triple time for holidays, liberalized eligibility
requirements, increased vacation benefits, and additional
sick leave and holidays.
Pursuant to a telephone conversation between the
Union's business agent, Saul Lasher, and Helfand, a
meeting was scheduled for October 8, 1971. That meeting
was attended by Lasher, Bill Honey, the union steward, for
the Union, and Helfand for the Company. Helfand
informed Lasher that the Company had suffered losses for
6 months and that with the proposal submitted by the
Union, he would have to close down. At the time, the wage
price freeze was in effect, and Helfand, after a discussion
concerning the freeze, made no proposal or counteroffer
on behalf of the Company, but indicated that he could not
do anything until the anticipated new wage guidelines were
announced. Helfand did indicate that even if the Union's
demands were within the guidelines, he could not accept
3 That fund existed for the purposes of insuring employees in such areas
as health, accident, hospitalization , medical costs , death, etc
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them and that unless the Union was reasonable with its
demands, he would be forced to close down his opera-
tions.4 At some point in this meeting, the Union requested
to see the Company's books. Helfand responded by
offering the Union the opportunity to examine his books,
an option the Union did not at any time pursue. Helfand
also provided Lasher accounting worksheets which con-
tained Respondent's operating figures.5
The parties again met on October 20, 1971, with the same
persons in attendance. At that time the guidelines still were
unavailable, and there was discussion of the wage freeze.
The impending expiration of the contract was also
considered. Helfand proposed that the terms and condi-
tions set forth in the old contract be extended beyond the
October 31 expiration date and the Union agreed.6 There
was some discussion of the welfare-pension issue, but the
parties agreed to wait for issuance of the new guidelines
and proceed from there.
On November 15, 1971, the new 5.5 percent guidelines
were put into effect. The parties again met shortly
thereafter on November 22, with no change in those
attending. At this session the Union reduced its economic
demands, proposing a 1-year contract, with a 25-cent
hourly increase, rather than the 50 cents previously sought,
while continuing to insist on an additional 7 percent
contribution to the welfare plan and 1 percent to pension.
Helfand rejected this as too costly and the type of proposal
that still would require him to go out of business. When
reference was made to the fact that the Union's new
proposal exceeded the guidelines, Helfand indicated that
he would discuss a package that met the guidelines, but,
beyond that, he would not join the Union in seeking
special relief from the pay board.? Lasher indicated that
because of existing employment conditions, an ii.crease
within the confines of the guidelines would be inadequate.
Another meeting was held on December 2 with the same
individuals in attendance. Helfand at that time offered a 3-
year contract with increases of 15 cents per hour annually,
provided that the level of pension and welfare contrib-
utions remained. unchanged.8 The meeting apparently
ended when Lasher agreed to present the Company's offer
to the membership. Subsequently, such presentation
occurred and the employees rejected the offer.
On December 14, the parties again met , with Lasher
advising Helfand that his proposal had been rejected.
Helfand indicated that with respect to welfare and pension
contributions, he would be willing to consider the Union's
position; i.e., the 7 percent and 1 percent increases, if he
could obtain relief for new employees. Helfand's position
in this regard was based upon the high turnover experi-
enced among new hires pnor to their acquiring 6 months
service as well as the fact that certain welfare, and all
pension benefits were not available to employees pnor to
completion of 6 months employment. Lasher rejected this,
asserting that the Union could not countenance any such
discrimination against new hires .9 The parties agreed to
defer the next meeting until after the holidays.
In the meantime, apparently sometime after the Decem-
ber 14 session and in that same month , Helfand called a
meeting of the employees. Helfand asked the employees
whether they particularly wanted the welfare and pension
programs as proposed by the Union. The employees
responded affirmatively. Helfand indicated that he could
not afford the Union's plan, and offered Blue Cross-Blue
Shield coverage in its stead.10 The employees were told that
if they accepted this plan, he could give them a higher
increase in wages and they would not need a union.ii The
4 The above is based upon a composite of the testimony of Lasher and
Helfand Honey, though called as a witness by the General Counsel and
Respondent was not examined as to the negotiations In most instances, I
shall not credit Lasher where his testimony is contradicted and, unless the
subject of specific findings herein, his testimony is rejected. Lasher did not
impress me as a reliable witness His testimony is replete with contradictions
and he persisted in passing off his own understanding or assessment of
events and statements, as if they were matters of fact Though on direct
examination, his testimony conveyed a remarkable capacity for recollection,
this was quickly shown to be illusury when Lasher was confronted with
statements in his pretrial affidavits on cross-examination by Respondent's
attorney I am particularly suspicious of that portion of Lasher's testimony
which imputes conduct to Respondent of a highly prejudicial nature for I
am convinced that, whether or not innocently based, he tended to color the
facts in order to support the charges herein
5 Although Lasher indicated that he did not understand the significance
of the figures on these worksheets, he sought no assistance and, while
conceding that accountants were available to the Union , he made no effort
to procure their aid in a test of the validity in the Company's claims of
economic distress and inability to pay
6 1 discredit Lasher's testimony that Helfand agreed at this meeting, or at
any other time, that any new agreement reached would be retroactive to
October 31, 1971 There is no reference to an agreement on retroactivity in
Lasher's pretrial affidavit In addition, Lasher's testimony as to whether or
not Helfand ever used the term retroactive is replete with contradiction,
unreliable, and unworthy of credence. However, I do believe, as Lasher at
one point testified , that Lasher felt that retroactivity was implicitly a
derivative of the agreement to extend the contract Although he at that time
indicated that automatic retroactivity had been the practice in past
negotiations, from the record, I am not satisfied that the parties had ever
been confronted with a situation where they were unable to reach
agreement prior to expiration of the existing contract I credit Helfand's
denial that he at any time agreed to retroactivity
r Apparently it was the view of the Union that because of the low wage
base ($2 61 average hourly rate without fringes ) of Respondent 's employees,
an exception from the guidelines could be obtained from the pay board.
8 This offer was conditioned upon approval of the employees, with the
understanding that it could be withdrawn if rejected
Although Lasher initially testified that the annual increases proposed by
Helfand were conditioned upon abandonment of the welfare and pension
programs, this fails to comport with his pretrial affidavit and I find the offer
to have been made as related above. I would note, however, that since the
equitable financial support among all employer-participants in the pension
and welfare plans is an essential element of the financial workability of such
multiemployer programs, it is not unlikely that Lasher regarded the
proposed freezing of Deblin 's contributions as tantamount to abandonment,
and that Lasher' s initial testimony on this matter was a further example of
his tendency to testify as to his interpretation of facts, in a manner
suggesting that these impressions were the facts themselves.
9 Lasher testified that Helfand also stated at this meeting that since the
employees would not accept his offer ".. he might as well go out of
business and the men can go out on strike" This statement is at variance
with and far more prejudicial to Respondent than the version Lasher set
forth in his pretrial affidavit In addition Lasher's affidavit recites that he
did not believe that Helfand discussed going out of business at this meeting.
In view of the confusion generated by these variances , I am unwilling to
find that Helfand made any reference to going out of business other than to
state that if the Union was not reasonable in its demands, he would be
forced to close down.
10 One of the employees, Brathwaite , asked the cost of the union plan,
and when Helfand indicated that it was about 40 cents per hour, Brathwaite
stated that if this were offered him, he would accept Helfand 's proposal
ti Helfand denied that he told the employees or suggested that they did
not need a union According to his version , he merely reminded them that
DEBLIN MANUFACTURING CORPORATION 395
men rejected Helfand's proposal, stating their preference
for the Union's plan. Subsequently literature relative to the
Blue Cross-Blue Shield plan was put in the shop for the
men to read.12
At the next meeting, on January 5, 1972, Lasher, having
learned of Helfand's meeting with employees, questioned
him as to why this was done, charging that this was not
bargaining in good faith and that the Company was doing
things behind the Union's back. Helfand tried to slough it
off, stating he just wanted to feel out how the men felt
about Blue Cross-Blue Shield, and apparently there was no
further sigmficant discussion of the matter. Helfand again
made the 5.5 annual wage increase proposal for a 3-year
period, which the Union rejected. The Company's pro-
posed 6-month limitation on contributions to the welfare
and pension plans was again discussed.
The same individuals again met on January 20, 1972.
Nothing occurred at this meeting which could be regarded
as injecting new life into the bargaining stance of the
parties. Helfand indicated that he would adhere to his
previous offer, and Lasher observed that that offer had
previously been rejected. According to Lasher he told
Helfand that this "was not bargaining to the point of giving
a counter-offer to any offer we have had." Nonetheless,
Lasher advised that he would call a meeting in the shop to
find out whether the men had changed their minds.
Following the meeting, that same day Lasher met with
the employees. The employees rejected the 5.5 percent, 3-
year package offered by Helfand and elected to strike. The
strike commenced at 12:00 noon on January 20, 1972.
Apparently as a result of the strike and lack of significant
progress in negotiations, the state mediation service was
contacted by Lasher and became available to the parties.
On January 26, a meeting was conducted in the mediation
offices in the presence of Michael Wolpart, a state
mediator. Employee Charlie Walker, a committeeman,
joined Honey and Lasher, and Helfand continued as the
sole company representative. The meeting opened with a
.briefing of Wolpart as to what had transpired in prior
negotiations. There was discussion of certain language
problems and agreements were reached on some noneco-
nomic matters. The Union made a new proposal of a 3-
year contract calling for successive raises of 15 cents the
first year, and 20 cents on the second and third years, with
the only adjustment in the Union's pension and welfare
they had a Union and that it was up to them if they wanted a union I credit
the testimony of incumbent employees Honey and Brathwaite and find,
over Helfand 's denial , that the statement was made as set forth in the above
text I do not believe that the present employees would have misrepresented
Helfand's remarks in this regard, and note that their version fits the context
of the meeting in a manner more consistent with the probabilities than that
of Helfand Furthermore , in all other respects , the testimony of these
employees was consistent with the balance of the record , and they
impressed me, from their demeanor , as intent on baring the truth.
i2 As will be indicated in greater detail infra, this incident was the subject
of an unfair labor practice charge filed by the Union on February 2, 1972, in
Case 29-CA-2717 A complaint based on that conduct was issued , but then
was made the subject of a formal settlement stipulation The Regional
Director, in the present proceeding has not set aside the settlement
agreement , and there is no contention or allegation before me that this
meeting constitutes an unfair labor practice , presently subject to redress
i3 1 do not regard this offer of I year's relief from the I-percent increase
in pension contributions as a significant departure from the Union's
position on welfare and pension contributions
demands being a deferral of the I-percent pension increase
to the second year.13 Helfand indicated that he would
consider the offer. At some point during this session, when
the mediator inquired as to the terms of the expired
contract, the Union made reference to retroactivity.
Helfand refused to agree that any new contract reached
would be retroactive to October 31, 1971, the termination
date of the recently expired contract. The meeting ended
with an agreement to again meet the next day at the plant.
At the meeting the next day, Helfand rejected the
Union's proposal of the preceding day. He again stated
that he would consider agreement based upon the 5.5
percent guidelines, but that he could not accept the
Union's demands and remain in business. Apparently,
nothing else of consequence occurred at this meeting,14
which broke up on a note of discord.
On or about January 30, 1972, pursuant to a telephone
request by Lasher, a negotiation session was held at union
headquarters. Joining the union team of negotiators was
the Union's president, a Mr. Weisler. Prior to the meeting,
the Union received a letter over Helfand's signature, dated
January 28, 1972, stating:
Please be advised i t is our present intention to
terminate operations as of March 10, 1972.
Lasher, referring to this letter , proceeded to attack
Helfand , asking "what kind of bargaining was this , to send
us a letter , when we are sitting down to try to resolve the
issues , and get the men back to work ." 15 Helfand said that
the letter was self-explanatory . At this point the discussion
turned to bunging Weisler up to date on the bargaining to
that point . Weisler told Helfand that Deblin would accept
the 11-percent and 5-percent union proposals on welfare
and pension . At that point , Helfand walked out of the
meeting.16
Shortly after this meeting and on February 2, 1972, the
Union filed unfair labor practice charges in Case
29-CA-2717, alleging violations of Section 8(a)(1), (3), and
(5) of the Act , specifically stating:
Since on or about October 20, 1971, the above-
named Employer, by its officers, agents and representa-
tives, has failed and refused to bargain in good faith
concerning the terms and provisions of a collective
bargaining contract, with the undersigned labor organi-
li t discredit Lasher's testimony that Helfand at this meeting indicated
that he was "withdrawing" any retroactivity. I have previously found that
Helfand at no time agreed to retroactivity For the reasons expressed in that
connection , and noting that Lasher's pretrial statement imputes to Helfand
language in the nature of a refusal to agree , rather than the withdrawal of an
existing agreement , I do not credit Lasher' s testimony in this regard
15 According to Helfand it was Weisler who questioned him concerning
this letter Because I deem it insignificant as to who raised the matter, I
accept Lasher's testimony that he made the above statement.
'" Except as indicated above, this is based upon the credited testimony
of Helfand . I found him to be basically a more reliable witness than Lasher
I specifically discredit Lasher's testimony that Helfand stated that he would
go out of business if the Union refused to settle on Helfand's terms. Here
again , Lasher's testimony departs from his pretrial affidavit which indicates
that Weisler had characterized the close down statement and had accused
Helfand of making such a threat . Though Lasher, from the witness stand,
imputes the threat to Helfand . the affidavit fails to aver that Helfand
expressed any threat based upon such a contingency For this, and other
reasons heretofore expressed, I discredit Lasher in this regard.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation, which is the recognized collective bargaining
representative of its factory employees. -
On or about January 20, 1972, the said Employer
discharged Winston Brathwaite because of his activi-
ties on behalf of the undersigned union.
Thereafter, the Company retained an attorney, a Mr.
Gerald Wendel, who after several telephone conversations
with Lasher arranged a meeting for February 24, 1972.
That meeting was attended by Honey, Walker, and Lasher,
for the Union, and Helfand, for the Company. At the
outset, Helfand advised that the lawyer would not be
present, but that he was there to listen to any proposals
that the Union would offer. The meeting was broken up by
Lasher, who informed Helfand that "Since the attorney is
not there, there is no use of meeting and if the company is
there to listen, we have nothing to discuss." However, a
meeting was set up for March 1.
The same group attended the March 1 meeting. Wendel,
was not available to meet on that day, and again did not
show up, though the purpose of the meeting, from the
Union's point of view, was to have him present. The Union
changed its last proposal, now offering a 2-year contract
with a 35-cent hourly wage increase, with an II percent
contribution to the welfare fund the first year, and a 25-
cent increase in hourly wages the second year, with an II
percent contribution to the welfare fund and a 5 percent
contribution to the pension fund (apparently the 1 percent
increase in pension contribution was deferred to the
second year.). This represented an increase over the
package previously put on the bargaining table by the
Union. When asked by Helfand as to why the Union had
upped the ante, Lasher referred to the continuing inflation
and stated that the men needed that amount. The
Company rejected this, and reiterated its 5.5 percent
proposal. Lasher indicated that the men would talk this
over and let Helfand know 17
Subsequently a meeting was set for March 27, 1972. A
Mr. Altman, general representative of the International
Union, and described as a "troubleshooter," was present,
as were Helfand, Wendel, Walker, Honey, and Lasher. The
meeting opened with a briefing of Altman as to what had
transpired in negotiations to that date. Helfand informed
Altman that he wanted an open shop and was joined by
Wendel in explaining to Altman why Deblin could not
afford the increase in welfare and pension contributions.
Helfand credibly testified that Altman indicated that he
would not go along with an open shop nor would he
tolerate any deviation from the pension and welfare
demands. Lasher pointed to the fact that it was about time
for a settlement. Discussion shifted to a possible basis for
accommodating the divergent positions of the parties on
welfare and pension. In this connection, it was discovered
that, for reasons not material here, certain strikers, in the
past, had received payments, called bonuses, which, with
the assent of the Union, had not been subject to welfare
and pension contributions. Lasher credibly testified that
Altman suggested if the percentages were applied to these
bonuses, perhaps the Union could reduce the percentage
increase it had been seeking 18 Helfand credibly testified
that as he and Altman were leaving at the close of the
meeting, Altman suggested to him that the Company
propose a lump sum settlement and allow the Union to
apply it as they wished.19 Helfand told Altman he would
think it over.20
The same individuals, except for Walker, again met with
Altman in attendance on April 4. At this time, Helfand, in
response to Altman's request, inquired as to what the
Union would do with a 25-cent lump sum offer. The union
representatives began to figure how this sum could be
allocated to wages, welfare, and pension. They took the
welfare and pension contributions off of the top, and
Helfand stated that too little was left to employees for
wages and he would not enter a contract on that basis.
There was also some discussion of the matter of bonuses,
but no proposal was made as a result of this.21
17 1 discredit Usher's testimony that Helfand stated that he would rather
have an open shop and would not sign a contract with the Union Here
again Usher's pretrial affidavit fails to substantiate his testimony But in
addition, I deem it highly unlikely that Helfand would have made such
extreme statements considering the balance of his conduct , and the fact that
they allegedly were made during the pendency of Case 29-CA-2717, and
while Helfand was under the advice of an attorney
18 Helfand does not specifically contradict Lasher in this regard
Although he denies that the Union reduced its welfare demand from I I to 9
percent at this meeting , and hence implicitly denies that the bonus
discussion produced a liberalized demand by the Union, this falls short of a
denial that the bonus issue was raised. Wendel merely testified that he did
not recall a reference to the bonuses during this meeting I credit Lasher
because, considering the past practice whereby the Union agreed to except
the bonuses from fringe contributions , and the irregularities suggested
thereby, I think it improbable that Lasher would testify as to this matter if it
had not actually been raised
19 Helfand appears to have been contradicted by Wendel on the
reference to a lump sum proposal However, this is not necessarily the case
For, the record does not indicate that either Wendel or Lasher, whose
testimony makes no reference to the lump sum proposal, were within
earshot of this exchange between Helfand and Altman I would also note
that such a request is entirely consistent with Weisler 's position at the late
January meeting where, according to the credited testimony of Honey,
Weisler stated that he did not care what the parties settled for as long as the
Union's pension and welfare demands were met I note that the only
witnesses examined as to this meeting were Helfand, Lasher, and Wendel
Altman did not appear
20 1 do not credit Usher's testimony that Helfand stated at this meeting
that he would rather go out of business than sign a contract , that the
Company did not want a contract , and that the Company did not want to
discuss anything Here again , despite the gravity of these alleged statements,
Usher's pretrial affidavit fails to mention them . Furthermore , for reasons
heretofore stated , and because I deem it highly improbable that Helfand
would have made such statements in the presence of his attorney , during the
pendency of the surface bargaining charge in Case 29-CA-2717, I do not
believe Lasher I also note that Usher's testimony as to these statements
seems completely out of line with Usher's further testimony to the effect
that he was encouraged by the movement and direction that the
negotiations appeared to be assuming at this meeting I credit Helfand's
denial of the statements Lasher imputes to him
21 1 discredit Usher's testimony that at this meeting the Union offered to
reduce its welfare demand from II percent to 9 percent if applied to the
bonuses I am unwilling to accept Usher 's uncorroborated testimony on
this matter The Union's position throughout negotiations , that is, prior to
the April 18, 1972, filing of the decertification petition was that it would not
discriminate with respect to its demands concerning pension and welfare It
is also a fact that the financial basis of these multiemployer benefit plans,
requires an equitable allocation of costs among participating employers
With this in mind, I note that the net contribution at 9 percent applied to
the bonuses, would give the Union a return equalling the I I percent sought,
without application to bonuses However, this parity would be achieved
only as to three unit employees who were the only recipients (Honey,
Walker, and Brathwaite ) of such bonuses Thus, if this reduction in the
DEBLIN MANUFACTURING CORPORATION 397
At the conclusion of this meeting, nothing was open on
the table which could have moved the parties from their
entrenched positions. I credit Wendel's testimony that the
next contact made by the Union was by telephone some
8-10 days after the above meeting. Prior thereto, and on
April 12, 1972, all employees, who could then be
considered as participants in the economic action against
Deblin, abandoned the strike, applied for reinstatement,
and were given their jobs back on the same terms as in
effect before the walkout. This termination of the strike, I
find, was the cause of Lasher's above telephone conversa-
tion with Wendel in which Lasher expressed surprise that
the men had returned to work. Wendel, having no
knowledge of this, advised Lasher that he would call
Helfand and get back to Lasher.22
On April 13, 1972, the Regional Director took action
with respect to the pending charge in Case 29-CA-2717. A
complaint was issued based upon Helfand's alleged
"promises of benefits" and "direct dealing" with employ-
ees concerning Blue Cross-Blue Shield in December 1971.
However, the assertions based upon alleged surface
bargaining and the discharge of Brathwaite were dismissed,
by letter, over the signature of the Regional Director,
stating in material part:
The investigation failed to establish that Deblin
Manufacturing Corporation refused to bargain in good
faith with your organization concerning the terms and
provisions of a collective bargaining agreement, nor did
the investigation establish that the Company dis-
charged Winston Brathwaite because of his activities
on behalf of your organization. Rather the evidence
tends to show that the Company engaged in good faith
bargaining and that the failure to reach an agreement
to date has been the result of several circumstances,
including the Company's inability to meet your
demands because of its financial position and your
insistence that the Company agree to accept the
Union's increased welfare and pension plan proposal.
The evidence further tends to show that Brathwaite's
termination resulted from insubordination toward the
Company foreman. I am therefore refusing to issue a
complaint with respect to the allegations of overall bad
faith bargaining and discriminatory discharge. The
remaining allegations of the charge are being processed
further.
union demand had occurred , there would be a departure from the Union's
policy of no discrimination and a reduction in costs to the employer
covering a portion of the bargaining unit involved here I deem it unlikely,
considering the balance of the record that this type of concession was made.
It follows that I discredit Lasher's testimony that the meeting closed with
the Company agreeing to consider the 9 percent proposal and to telephone
him subsequently I note additionally that Lasher 's testimony as to any such
agreement is inconsistent with the account reported by him in his pretrial
affidavit
22 1 discredit Lasher's testimony as to the existence of an earlier
telephone conversation on April 5, as well as his testimony that in the course
thereof Wendel made a reduced offer of a 3-year contract , with a total cost
of 7 percent , or 2 3 percent annually Wendel denies any such reduction in
the Company 's offer, and based upon demeanor , and my basic dissatisfac-
tion with Lasher's testimony generally, I find Wendel the more reliable
witness For like reasons , I also discredit Lasher's testimony that any such
offer was communicated to the employees , and that Wendel informed him
that the former would engage in no further meetings before the hearing in
Case 29-CA-2717.
This dismissal was never appealed by the Union.
On that same date , the three and only former supporters
of the strike , Honey , Brathwaite , and Walker , presented
the Company , a written revocation of their checkoff
authorizations.
On April 18, a decertification petition in Case
29-RD- 137 was filed with a declaration of intent to
disaffiliate signed by all three of the above employees.
Thereafter , and pursuant to telephone requests by
Lasher , Wendel agreed to meet with him in the office of
the Union 's attorney , Stephen Sturm. Sturm , Lasher, and
Wendel were the only persons present . Sturm did not
testify and a conflict exists between Lasher and Wendel as
to the content of this meeting . Based on resolutions of
credibility heretofore made and my assessment of the
probabilities , my findings of this meeting are based on
segments , but not the entirety of the testimony of either
Lasher or Wendel . Thus, I find that at this meeting Wendel
advised the Union that employees abandoned the strike
because of the Union 's bargaining tactics , and adamant
position on welfare and pension . Lasher offered at this
meeting to accept the Company 's proposal (I find this to be
the 5.5 percent 3-year package), and Wendel informed
Lasher that he would check with Helfand and let him
know . 23 In my opinion , this was the last meeting in which
any bargaining took place.
Subsequently , Lasher succeeded in reaching Wendel by
telephone on April 30. Wendel at that time stated that no
settlement could be made on the basis discussed at the
April 20 meeting and that the Company would not sign a
contract with the Union , and that there would be no
further meetings.24
On May 18, 1972 , at the hearing in Case 29-CA-2717,
Lasher again requested a meeting of Wendel, who
indicated that there would be no further negotiations.25
On August 1, 1972, Lasher sent Respondent a letter
stating as follows:
Pursuant to our rights as outlined in the decision and
order of N.L.R.B. dated July 7, 1972, we hereby request
a meeting with you as soon as possible to sign the labor
agreement which terms and conditions we agreed to
with your attorney, G. Wendel , on April 20, 1972.26
Thereafter, Wendel agreed to a meeting with Sturm and
Lasher on August 31. Helfand also attended. According to
23 Although I am satisfied and find that though Lasher knew the
decertification petition had been filed , there is no evidence or reasonable
basis for finding that Wendel, on this date, had knowledge thereof
24 Based upon the credited testimony of Lasher, which is not contradict-
ed directly and, furthermore , that such a telephone contact was made is
entirely probable when considered in the light of my findings as to the April
20 meeting
25 That hearing was adjourned pursuant to settlement discussions, and
on May 19, a formal settlement stipulation was executed by the parties with
respect to the complaint The stipulation was made the subject of a decision
and order of the Board on June 7, 1972. and a notice was posted by Deblin
pursuant thereto on July 17, 1972 On September 12, 1972, the United States
Court of Appeals for the Second Circuit enforced said order of the Board
On October 2. 1972, compliance being achieved pursuant to the settlement,
the Regional Director closed Case 29-CA-2717
26 Lasher 's reference to an agreement having been reached on April 20 is
a mystery to me Under no version of the testimony presented here.
including that of Lasher, was there any indication that a formal or
informal accord had at any time been reached
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the credited testimcny of Wendel, his assent to this
meeting was a courtesy to Lasher, with whom he had a
history of dealings in labor management matters elsewhere.
Lasher, at this meeting, made a strong appeal that a
contract be signed Lased on the April 20 proposal of the
Union in view of the parties' long bargaining history.
Lasher was informed by Wendel that the Union no longer
represented the employees, and, accordingly, that there
would be no contract.27
On September 14, 1972, the charge in the instant
proceeding was filed, and on November 30, 1972, the
Regional Director issued the complaint on which the
present action is based. On November 30, 1972, the
Regional Director administratively dismissed the decertifi-
cation petition in Case 29-RD-137, on the ground that the
proceeding and settlement agreement in Case 29-CA-2717
precluded a question concerning representation at the time
the petition was filed. A timely appeal was filed by
Petitioner Bill Honey with the NLRB in Washington, D.C.,
challenging the latter action by the Regional Director. On
April, 17, 1973, the Board denied the appeal, stating:
Having duly considered the Petitioner's appeal of the
Regional Director's dismissal of the instant petition the
Board concluded that, as an 8(a)(1) and (5) complaint
issued November 30, 1972, in Case 29-CA-3505,
alleging inter alit that since April 5, 1972, the Employer
had bargained is bad faith with no intention to enter
into any final or binding contract and as such alleged
conduct antedated the filing, April 18, 1972, of the
instant petition, the Regional Director's dismissal of
the petition is affirmed.
The Board's action with respect to the appeal is not
without significance; for, in altering the basis for dismissal
of the decertification petition, from that offered by the
Regional Director, the Board has left open the question of
whether the charges filed in Case 29-CA-2717, and the
ultimate disposition thereof, blocked both the decertifica-
tion activity as of April 18, 1972, and the employer's
reliance thereon as a basis for its subsequent refusal to
bargain with the Union.
C. Conclusions
1. Preliminary statement
Ultimately at stake in this proceeding is whether a
remedial order, which would require further good-faith
27 Based upon a composite of credited portions of the testimony of
Lasher, Helfand, and Wendel
28 It is true that the Regional Director , with subsequent Board approval,
in dismissing the instant petition , ruled that no question concerning
representation could be raised at the time that said petition was filed
However, the Regional Director's decision was based on the proceedings
growing out of the settled allegation in Case 29-CA-2717. The Board, in
affirming that dismissal , avoided reliance upon that closed case, but instead
cited the instant complaint as precluding further processing of the
decertification petition. Although I shall consider the impact of Case
29-CA-2717 upon the issue of good-faith doubt below, it follows from the
Board's action that, in its view , the present complaint constituted a clear
impediment to the raising of a question concerning representation at the
time the decertification petition was filed . This, however, is not a complete
or final answer to Respondent's reliance upon Telaurograph, supra, in this
case. In this connection, it is noted that the decertification petition was filed,
bargaining for a reasonable period of time , should not
issue. As will be seen , infra, this turns upon whether the 6
months of fruitless collective bargaining, the employee
decertification activity, and the Union' s loss of majority
were attributable to or a possible byproduct of misconduct
which the General Counsel seeks to attribute to Respon-
dent.
In considering the facts, I am satisfied and find that
Respondent, commencing on April 30, 1972, and at all
times subsequent thereto, declined to participate in further
contract negotiations with the Union. However, at that
time , a decertification petition was pending, and I am
further persuaded that the employer possessed facts,
which, at the very least, furnished a reasonable basis for
believing that the Union had lost its majority. Thus, as of
April 12, 1972, there were five employees in the appropri-
ate bargaining unit, including Honey, Brathwaite, and
Walker, the only three who supported the strike for its
duration. It will be recalled that all three abandoned the
strike and returned to work that day. The other two
workers then in Respondent's employ at no time partici-
pated in the union-sponsored strike, but continued to work
during the course thereof. On April 13, Honey, Brathwaite,
and Walker notified Respondent of their desire to revoke
their checkoff authorizations. On April 18, the decertifica-
tion petition was filed, which remained in a viable state
before the Regional Director until after issuance of the
instant complaint. On or about April 18, Bill Honey
presented a document to Helfand, containing the signa-
tures of Honey, Brathwaite, and Walker, stating that they
did not wish to be represented by the Union, or any other
labor organization. On this basis, I reject the General
Counsel's contention that the record fails to support the
Respondent's claim that it ceased bargaining with the
Union on the basis of objective considerations furnishing a
doubt of the Union's majority status.
Concerning, the decertification petition, I note that in
Telautograph Corporation, 199 NLRB 892, the Board, in
effect, held that a decertification petition, supported by an
adequate showing of interest, which raises a real question
concerning representation standing alone may provide a
defense to an employer's refusal to participate in further
contract negotiations.28
In addition, it is settled Board policy that an employer
may decline to recognize and engage in further bargaining
with an incumbent representative where, as here, it can be
and bargaining was curtailed prior to the filing of the charges on which the
instant complaint is based Therefore , if the instant complaint fails to
establish a possible connection between employer misconduct and employ-
ee defections , it must be concluded that Respondent was nonetheless
justified in refusing to bargain on the basis of the then pending
decertification petition Any other result would fail to give full interplay to
the rights and obligations defined in the Act A nonmeritonous unfair labor
practice complaint should not serve to vitiate uncoerced decertification
activity and impose a bargaining relationship on unwilling employees solely
on the basis of technical procedural concepts which require automatic
dismissal of a decertification petition upon issuance of an 8(a)(5) complaint.
Should such complaint ultimately be dismissed , all value in the procedural
rule which dictated dismissal of the decertification petition will have been
exhausted , and statutory policies may only be vindicated by viewing said
petition as raising a question concerning representation nunc pro tune
DEBLIN MANUFACTURING CORPORATION 399
shown that objective facts provided a reasonable basis for
believing that the union had lost its majority.29
Although I am persuaded that the decertification
petition,30 considered alone or in conjunction with the
other objective evidence of loss of majority, tends to
support the legitimacy of the Respondent's discontinuance
of bargaining on April 30, it is also a matter of settled
Board authority that a defense so grounded is unavailable
where the employer has engaged in misconduct tending to
dissipate the union's majority and thereby induce said loss
of majority.31
The General Counsel views this as just such a case. In
doing so, he argues that the withdrawal of recognition and
curtailment of bargaining occurred against a background
of contract negotiations, in the course of which Respon-
dent bargained in bad faith and with no intention of
reaching agreement. In addition, it is argued, that any
defense based upon a doubt of majority is unavailable,
since the Respondent ceased bargaining during the
pendency of the charge in Case 29-CA-2717. Thus, there
are two possible grounds for rejecting the Respondent's
good-faith doubt: (1) the bad-faith issue, which is alleged
as an 8(a)(5) violation in this case, and (2) the fact that
Respondent terminated bargaining while an outstanding
unfair labor practice charge was unremedied. Apart from
the foregoing, which I shall consider below, I find that
Respondent's defense, in all other respects, is substantiated
by this record.
2. The alleged bargaining in bad faith
In my opinion, the record does not substantiate the
allegations in the complaint that Respondent, since April 5,
1972, bargained in bad faith and with no intention of
reaching agreement . Indeed, I am satisfied that at all times
between September 24, 1971, and April 30, 1972, Respon-
dent's conduct at the bargaining table was consistent with
its obligation to bargain in good faith 32
The contract negotiations, under scrutiny here, which
proved fruitless, took place against a bargaining history of
29 See e g. United States Gypsum Company, 157 NLRB 652, 655,
Laystrom Manufacturing Co, 151 NLRB 1482, 1484 enforcement denied on
other grounds 359 F.2d 799 (C A. 7, 1966).
30 Following Telautograph, supra, the Board in National Cash Register
Company, 201 NLRB 1034, distinguished the former in holding that a
decertification petition furnished no defense to a refusal to bargain where
the employer had inspired the filing of such a petition In the instant case,
the record shows that the petition was filed voluntarily by the employees
and without encouragement of the Respondent.
31 Celanese Corporation of America 95 NLRB 664, 673, Plastiline, Inc,
190 NLRB 365, ALJD, General Motors Acceptance Corporation, 196 NLRB
137, and cases cited at In 8 therein
32 My analysis of the surface bargaining allegation is made in the posture
most favorable to the General Counsel and constitutes a review de novo of
the entire course of bargaining, without regard for Section 10 (b) and the fact
that the Regional Director on April 13, 1972, dismissed a charge based on
the same theory. Although under my disposition of the case it is
unnecessary for me to reach Respondent's contention regarding Jefferson
Chemical, supra, I would note that , as I interpret that decision , it, at best, has
only limited value here Involved there was a summary dismissal of a
surface bargaining allegation without a hearing, where the complaint was
based entirely on facts predating an earlier 8(aX5) case involving the same
parties . In that earlier proceeding the general counsel at the hearing
disclaimed any assertion that the respondent had engaged in surface
bargaining . A divided Board upheld the administrative law judge 's grant of
summary judgment based on his ruling that the General Counsel was
some 15 years. There is no evidence of union animus.
However. Respondent's strong aversion to the Union's
economic demands is plainly evident. In this latter regard,
Respondent's plea of inability to pay was received by the
Union with apparent disinterest. The Union at no time laid
serious challenge to this assertion, nor did it avail itself of
Respondent's books and records to investigate whether or
not the economic representations of Respondent had
foundation. This is understandable, however, for basically
the Union's position was dictated by considerations far
beyond this small bargaining unit . Thus, the Union was the
sponsor of industrywide welfare and pension trusts
covering employees of about 60 other employers. These
trusts were governed by documents, not subject to separate
negotiations with each of the participating employees.
With respect to the welfare program, prior to the
commencement of the negotiations involved here, changes
had been made in the governing declaration of trust which
provided for broader coverages and benefits and hence
greater costs. It is the sense of Lasher's testimony and
should be obvious in any event that the solidarity of
employer participation and the financial integrity of the
plan depended on the equality of the level of contributions
negotiated by the Union with all employers, including the
Respondent. The foregoing supplies the explanation for the
rigidity in the Union's demands for a 7 percent increase in
welfare and I percent in pension contributions, which
credible evidence shows to have been insisted upon
without significant moderation from September 1971 to
April 20, 1972.33
It is true that the Company moved very little from its 5.5
percent package. However, the failure to make a conces-
sion or counterproposal, though possibly indicative of bad
faith, is not in all cases to be branded with such a
construction.34 The Union's demands for pension and
welfare represented an increase of 8 percent in hourly
payroll cost alone, even before wages were considered. I
have no reason to doubt Respondent's declared inability to
finance such an increase. In the face of the intransigence of
the Union, no suspicion is aroused by Respondent's failure
precluded from litigating that same issue in a subsequent proceeding where
based entirely upon facts available at the time of the hearing in the earlier
case Unlike Jefferson Chemical, the surface bargaining charge in the instant
complaint rests upon alleged facts which postdate dismissal of the portion
of the earlier charge involving that same theory Therefore, the pleadings in
this case make out a cause of action, and whether an unfair labor practice
occurred can only be ascertained upon full trial on the merits . In these
circumstances, summary dismissal pursuant to Jefferson Chemical would be
inappropriate However, as will be seen, infra, In 36 , this does not mean
that said decision is totally inapposite to the issues presented here.
33 In his brief the General Counsel argues that since the welfare and
pension funds were a percentage of wages, each time the Union reduced its
wage demands , there was a concomitant reduction in its position on welfare
and pension From a total cost standpoint , this may be true , but I do not
view it as indicative of union flexibility on the basic issue in the
negotiations , for I do not regard the wage question as contributing
substantially to the breakdown in negotiations . From the record it is my
feeling that , independent of the welfare and pension issue a settlement could
be achieved on a wage increase within the phase II guidelines. Perhaps,
Lasher's understanding that this was so, is an explanation as to why
Lasher's testimony is devoid of any reference to this asserted reduction in
welfare and pension demands by the Union which the General Counsel for
the first time argues in his brief
34 See Webster Outdoor Advertising Company, 170 NLRB 1395,
1396-97.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to take the initiative and make what would then have
appeared to have been futile concessions, solely to narrow
the gulf between the parties' respective positions.35 I read
nothing into Respondent's stance on economic matters
other then an intent on its part to reach an accord
compatible with its financial situation.
The only other credited evidence that could be construed
as bearing adversely upon Respondent's state of mind
consists of (1) the various statements by Helfand to the
effect that acceptance of the Union's demands would
require a termination of operations, (2) the letter of
January 28, 1972, in which Respondent stated that it
planned to terminate operations in March, (3) the
December 1971 meeting with the employees that was the
subject of the settled complaint in Case 29-CA-2717, and
(4) the fact that at a bargaining session of February 27,
1972, Helfand said he was only there to listen to the
Union's proposals.
As to (4) above, Helfand indicated to the Union at the
February 27, 1972, meeting that this position was taken on
advice of counsel in view of the 8(a)(5) charge that had
been filed by the Union some 3 weeks earlier. Although
such a posture at the bargaining table is hardly compatible
with good-faith bargaining, the statement in question was
predicated upon the absence of Respondent's counsel
while a charge of overall bad faith was pending, was
limited to a single meeting, and stands as an isolated
incident when considered in the context of the remaining
bargaining sessions . I am unwilling to find that this single,
isolated expression raises a suspicion as to the bonafides of
Respondent's conduct during the entire course of negotia-
tions.
I do note, however, that the various references to a
possible closedown if the Union should not soften its
demands, though perfectly lawful expressions, may be
viewed as questionable when considered with the letter of
January 28, 1972, in which Respondent informed the
Union that a shutdown was imminent. Although Respon-
dent, at the hearing, offered an explanation for this letter,
which tended to soften its punch considerably, there is no
testimony that this was ever communicated to the Union.
The letter itself was likely to exacerbate feelings, as it did,
and for reasons not apparent from the record, Helfand
chose not to allay these feelings. However, at worst I view
this entire matter as a tactical maneuver, which had little
bearing on what subsequently transpired. The parties
continued to meet and discuss the issues, though their,
positions were not altered materially at any time prior to
the employees' repudiation of the Union in April 1972.
Although, Respondent's conduct in this regard, is not to be
condoned, it is my view that the closedown letter was a
device to achieve agreement rather than to defeat such a
result, and that neither standing alone, nor considered in
as See, e g., Memorial Consultants, Inc, 153 NLRB 1, 15.
36 1 would also note that , apart from Respondent 's repudiation of
bargaining on and after April 30, 1972, there is absolutely no credible
evidence putting in question Respondent 's good faith following April 5,
1972, the date alleged in the complaint as the starting point for the surface
bargaining allegation herein Since I have found that Respondent 's April 30
cessation of bargaining was based upon a legitimate doubt of majonty, that
action standing alone can only be viewed as perfectly legitimate
Alternatively, therefore, while I have found that the credible evidence dealt
with above does not bear adversely upon the Respondent 's state of mind as
conjunction with other aspects of Respondent's conduct at
the bargaining table, could this preclude the otherwise
legitimate suspension of bargaining that subsequently
occurred in the face of Respondent's good-faith doubt of
majority. -
If there is a single factor that points to serious
impropriety in Respondent's actions during the course of
the negotiations, it is the meeting with employees conduct-
ed by Helfand in December 1971. Helfand then proposed
to the employees Blue Cross-Blue Shield in lieu of the
Union's welfare program, coupled with an indication that a
higher wage increase could then be afforded, and a
statement by Helfand that under such arrangement the
employees would not need the Union. Under normal
circumstances, an incident of direct dealing such as this
would provide strong evidence of a disposition on the part
of an employer to avoid reaching agreement . However,
here again, when considered in the light of the subsequent
bargaining, and particularly the Union's position on
welfare and pension, I am unwilling to find that any
implications stemming from that meeting lingered beyond
December 1971, or that on the basis thereof, Respondent
must be branded with a conclusion that it engaged in
surface bargaining throughout, and at no time intended to
reach agreement.
In sum, it is my conclusion that the allegations in the
complaint that Respondent bargained in bad faith and
with no intention of reaching agreement are not substanti-
ated by the record. The matters related above, neither
individually nor collectively, indicate that the ultimate
withdrawal of recognition occurred against a background
of bad-faith bargaining on Respondent's part. According-
ly, Respondent was not precluded, by virtue of its conduct
at the bargaining table, from asserting either the decertifi-
cation petition, or a good-faith doubt of majority as a bar
to further negotiations.36
3. Case 29-CA-2717 and the good-faith defense
As heretofore indicated at the time the decertification
petition was filed and when Respondent repudiated any
obligation to bargain further with the Union, the complaint
was pending in Case 29-CA-2717. That complaint was
based solely upon Helfand's meeting with employees in
December 1971 and alleged that, in the course thereof,
Respondent unlawfully promised benefits and engaged in
direct dealing with the employees.
The General Counsel argues that Respondent was not
free to assert a good-faith doubt as a justification for the
curtailment of bargaining during the pendency of that case.
The General Counsel is substantively correct in observing
reflected by its conduct at and away from the bargaining table prior to April
5, 1972, it would seem that Jefferson Chemical, supra, quite independently of
my analysis of the earlier events, would bar a finding of surface bargaining
during that period It would seem that if , as in Jefferson Chemical, the
General Counsel is estopped from litigating a surface bargaining charge
where based entirely on facts predating his refusal to litigate such a theory
during an earlier 8(aX5) proceeding, a like result would follow where as
here, the only evidence of bad faith predates the Regional Director's
dismissal of an earlier surface bargaining charge
DEBLIN MANUFACTURING CORPORATION 401
that a good-faith doubt normally may only be raised in a
context free of unfair labor practices.37 However, it is
noted that, considering the ultimate disposition of Case
29-CA-2717, and the nature of the Regional Director's
subsequent action i_-i proceeding with the instant case, the
General Counsel's present contentions relative to Case
29-CA-2717 arise in a somewhat unusual, if not totally
defective, context. For the unfair labor practice alleged in
the complaint in Case 29-CA-2717 has never been the
subject of a finding by either an administrative law judge
or the Board. Instead, as it will be recalled, the issue
involved there was the subject of a formal settlement
stipulation executec on May 18, 1972. That settlement
stipulation contained a clause stating: "It is understood
that the signing of this stipulation by Respondent does not
constitute an admission that it has violated the Act." In
addition absent from said stipulation is any affirmative
provision requiring Respondent to engage in further
bargaining with the Union. Although on its face the
settlement stipulation appears to be a final disposition of
Case 29-CA-2717,38 the Regional Director, on issuing the
complaint now before me elected not to set aside the
settlement agreemer t, so as to permit litigation of the
unfair labor practice issue resolved thereby. Accordingly,
the General Counsel, under the contention now being
considered, is asking me to find an unfair labor practice
not alleged in the instant complaint, but which is the
subject of another charge, in another case, and under a
settled complaint, in which the settlement has not been set
aside.
Although, I am somewhat troubled by the technical
consequences of such procedures. disregarding them, I am
nonetheless satisfied that application of Board law to the
present facts requires rejection of the General Counsel's
contention and I shall treat this issue on the merits.39
Thus, assuming, without deciding, that the issue is
properly before me. I find that the evidence herein fully
substantiates the unfair labor practice alleged in the
complaint in Case 29-CA-2717. However, this does not
end the inquiry. To sustain the General Counsel's present
contention, and hold that Respondent was not free to
assert a good faith doubt, would require an affirmative
bargaining order, calculated to assure additional bargain-
ing and ultimate agreement on a new contract which could
bar an election for its duration. Recognizing the effect of
such relief, and its impact upon employee choice, the
Board has sought to avoid the issuance of such order, if
based strictly on technical grounds, and where such relief
would result in continued imposition of a bargaining
representative on an unwilling majority, whose defection in
no sense related to the prior unfair labor practice.
Therefore, the Board, over the years, has declined to regard
the rule precluding employers from asserting a good-faith
doubt in a context of unfair labor practices as "an absolute
prohibition." 40 This is so even where the prior unfair labor
practice is unremedied at the time that recognition is
withdrawn.4i
In my opinion, this is a case in which statutory policies
would not be furthered by an overriding of employee
choice in the interest of remedying a prior unfair labor
practice. As I view the facts in Case 29-CA-2717, the
December 1971 meeting was an isolated event, having only
the slightest bearing on the bargaining immediately
thereafter and being of absolutely no consequence to the
ultimate result in the negotiations. The employees, at that
meeting, rejected Helfand's proposals, and their subse-
quent actions negate any assumption that their support of
the Union was shaken in consequence of this incident.
Indeed, their vocal support of the Union as they communi-
cated it to Helfand, in rejecting his offers, was translated
into positive action some 6 weeks later when, in support of
the Union's demands, the employees elected to strike. That
strike continued for 3 months, and was ultimately
abandoned by the employees because of their dissatisfac-
tion with the Union's bargaining strategy and the Union's
dealings with certain strikers.42 There is neither a showing
nor basis for inferring that any other considerations
contributed to the cessation of the strike, the decertifica-
tion activity, and the employees withdrawal from the
Union. Furthermore, aside from the December meeting,
Respondent engaged in no other unfair labor practices, no
other contacts pertaining to the bargaining were made with
employees, and the proposals made by Helfand at the
December meeting were never implemented. Thereafter,
Respondent continued to bargain in good faith and met
with the Union on nine separate occasions. The inability to
reach agreement despite Respondent's good faith during
negotiations, in my judgment, was the major, underlying
factor leading to the Union's loss of majority, a result in
which the Union was at least equally culpable.
In these circumstances, I am convinced and find that any
unfair labor practice growing out of Helfand's meeting
37 See, e g, I eking Lithographers, Inc, 184 NLRB 139.
38 On October 2, 1972, almost 2 months prior to issuance of the
complaint in the instant case and while the charge herein was pending in the
Region , Respondent was notified by the Regional Office that it had
complied with the terms of the settlement in Case 29-C 4-2717
ip I note that, though not referred to by the General Counsel in his brief,
the settlement stipulation also contained a statement that. "It is further
understood and agreed that the evidence relating to the issues settled herein
may be adduced in evidence in any subsequent proceeding before the Board
concerning or related to the issues involved herein."
In my opinion, that clause simply provides for the admissibility of
evidence in a subsequent proceeding and does no more It furnishes no
convincing explanation for the Regional Director's failure to adopt the
orthodox procedures for a repudiation of the finality of settlement
agreements , so as to allow the content thereof to he litigated as an unfair
labor practice in a subsequent proceeding
40 Colonial Manor Convalescent & Nursing Center, a Division of La Grange
Land Corporation, 188 NLRB 861.
ii .Mission Manufacturing Co, 128 NLRB 275, Midwestern Instruments,
Inc, 133 NLRB 1132, Cf C & C Plywood Corp, 163 NLRB 1022
42 For example . William Honey , the union steward who, along with
Lasher, attended all bargaining sessions before and during the strike,
credibly testified that during the strike he began to change his mind about
the Union. In explaining this, Honey referred to a statement by Union
President Weisler at the meeting of January 30 to the effect that the Union
would have to have the increase in pension and welfare contributions and
that Weisler "didn ' t care what the men settled for otherwise ;" as well as a
similar remark made by International Representative Altman. at a meeting
in late March Honey also referred to an agreement he had with the Union
that was not kept Thus, without contradiction . Honey testified that Lasher
agreed to make mortgage payments on Honeys home during the strike One
such payment was made by Lasher , but on April 12, 1972, Honey was
informed that foreclosure proceedings had been instituted against his home
for nonpayment . Honey informed the other strikers of this, and all agreed to
attempt to get iheirlobs hack
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with employees in December 1971 did not have a
meaningful impact on the Union 's status, nor did it cause
the employees ' disaffection from the Union or bear
adversely upon the parties efforts to reach an agreement.
Such being the case , the Board 's remedial authority must
yield to the right of employees to reject a representative
with which they have become dissatisfied . Accordingly, I
reject , as without ment , the General Counsel 's contention
that the settled unfair labor practice in Case 29 -CA-2717
precluded Respondent 's repudiation of bargaining either
on the basis of the decertification petition or the facts it
possessed establishing a reasonable basis for a belief that
the Union had lost its majority.
4. Summary
It is my conclusion that the allegations of the complaint
as to surface bargaining are not substantiated by the
record, and that Respondent' s termination of bargaining in
late April 1972 was based upon the pending decertification
petition and objective facts tending to establish the
Union's loss of majority. Accordingly, it being my opinion
that this good-faith doubt was not causally related to any
improper or unlawful conduct attributable to Respondent,
I shall recommend dismissal of the complaint in its
entirety.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Deblin Manufacturing Corporation is, and has been
at all times material herein , an employer within the
meaning of Section 2(3) of the Act , engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union , Local 28A , Metal Production and
Novelty Workers ' Union , International Brotherhood of
Painters and Allied Trades , AFL-CIO, is, and at all times
material has been , a labor organization within the meaning
of Section 2(5) of the Act.
3. As found above, Respondent has not bargained in
bad faith without intention of reaching agreement on and
after April 5, 1972, has not engaged in an unlawful refusal
to bargain by withholding recognition and refusing to
bargain further with the Union on and after April 30, 1972,
and has not engaged in unlawful conduct designed to
destroy the Union 's majority status among employees in
the appropriate unit.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein , and pursuant to
Section 10(c) of the Act , I hereby issue the following
recommended:
ORDER43
The complaint is hereby dismissed in its entirety.
43 In the event no exceptions are filed as provided by Sec 102.46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings , its findings , conclusions , and Order , and all objections thereto shall be
conclusions , and recommended Order herein shall , as provided in Sec . deemed waived for all purposes.