Excelsior Pet Products, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 759 (N.L.R.B. 1985)

EXCELSIOR PET PRODUCTS
Excelsior Pet Products Inc. and Local 222-S, Pro-
duction Service and Sales District Council,
H.E.R.E ., AFL-CIO. Case 29-CA-10977
26-September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 4 April 1985 Administrative Law Judge Ray-
mond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting
letter.
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 has decided to
affirm the judge's rulings,' findings, and conclu-.
sions and to adopt the recommended Order as
modified.
ORDER
The National -Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Excelsior
Pet Products, Inc., Brooklyn, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.2
i The Respondent's exceptions request a new hearing to set forth evi-
dence to support its position The exceptions demonstrate no error in the
administrative law judge's refusal to postpone the scheduled hearing and
do not indicate the nature of the evidence which the Respondent asserts
it would adduce at a new hearing The request for a new hearing is
denied As the exceptions do not contest the merits of the judge 's deci-
sion, we shall adopt that decision pro forma
2 We modify the remedy recommended by the judge to provide that
the question of whether the Respondent must pay any additional amounts
to the pension fund to satisfy our "make whole" remedy will be left'to
the compliance stage as set forth in Merryweather Optical Co, 240 NLRB
1213, 1216 fn 7 (1979)
Elias Feuer, Esq., counsel for the General Counsel.
Bruce Cooper, Esq., of New York, New York, for the
Charging Party.
Samuel Rosenberg, pro se.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Brooklyn, New York, on Octo-
ber 18, 1984. The charge was filed on January 13, 1984,
and the complaint was issued on February 28, 1984. As
amended at the hearing , the complaint alleges:'
i The General Counsel withdrew par 10 of the complaint, which al-
leged a threat of plant closure In its place , he moved to substitute a new
par 10, which alleged that since January 1984 , the Respondent ceased
making payments to a welfare fund
759
1. That the Respondent in'mid-August 1983 unilateral-
ly refused to implement a wage increase as required in its
contract with the Union.
2. That the Respondent, since July 13, 1983, has re-
fused to make payments to Blue Cross-Blue Shield as re-
quired by the labor contract.
3. That the Respondent since the termination date of
its contract with the Union has failed to make payments
to the welfare fund.
4. That the Respondent, since November 1983, has re-
fused to bargain with the Union by entering into negotia-
tions without any intention- of reaching a new contract.
• Based on the entire record, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT,
1. JURISDICTION
It is admitted by the ' Respondent that it is a New York
corporation engaged in the manufacture of bird cages,
bird feeders , and related products It also 'admitted that
annually' the Respondent sells products valued in excess
of $50,000 which are shipped directly to points outside
the State of New York. Accordingly, it is found that the
Respondent is an , employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The testimony of Eddie Rivera, the Union's secretary-
treasurer , shows that the Union is an ' organization in
which` employees participate and which exists for the
purpose of collective bargaining with employers on
behalf of employees. It therefore is concluded that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Operative Facts
The Company and the Union. have maintained a rela-
tively amicable collective-bargaining relationship for at
least 20 years. The last contract between. the parties had
a term from December 14, 1980, to December 14, 1983.
In pertinent part, that contract provided:
(1) That all employees employed at least 30 days were
to receive 25-cent-per-hour wage increases as of Decem-
ber 14, 1980, December 14, 1981, and December 14,
1982.
(2) That effective December 14, 1980, the Company
would contribute $14 per employee per month to a wel-
fare fund.
(3) That effective December 14, 1980, the Employer,
at its own expense , would provide Blue Cross-Blue
Shield coverage for. its employees.
In 1980 , the first year of the contract, the Company
employed about 14 to 15 employees. In accordance with
the contract, the employees received a 25-cent raise on
December 14, 1980, the Employer made the payments to
the welfare fund, and the Company arranged for a policy
with Blue Cross-Blue Shield with appropriate payments
on behalf of its employees. - ,
276 NLRB No. 85
760 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
According to Samuel Rosenberg, the Respondent's
owner, toward the' end of 1981 he began to see -his busi-
ness suffer, principally as a result of the importation of
bird -cages from other countries: Thus,, he asserted that
the wholesalers with whom he dealt were buying fewer
of his products as they could obtain the same products at
lower cost by importation. , ti-
Rosenberg stated that in December 1981 his foreman
Oswaldo Zurita2 spoke to•the employees, who agreed to
give up.a portion of the-25-cent raise that was scheduled
to go into effect as of December 14, 1981. This was done
without consultation with the Union's representatives
and.the employees signed -a paper agreeing to accept a
10-cent-per-hour increase. The failure to pay the 1981
wage increase, is not, however, alleged as being violative
of the Act, presumably because it occurred outside the
10(b) statute of limitations period. ' -
According' to Rosenberg, 1982" was even worse finan-
cially than ,1981• and when the December 14, 1982 25-
cent raise came due, his foreman spoke again to the em-
ployees (at this time there were only -about five or six
employees -left), who agreed to take a 15-cent instead of
a 25-cent raise. -
According - to Rivera, Rosenberg told him around
March 1983 that the Company could not afford to give'
the 25-cent raise as called for in the contract. Rivera
states that he spoke to the employees, who agreed to
give the Company,a postponement on this raise for 3 to
6 months. In effect, therefore, the employees and the
Union agreed to waive the December 1982 25-cent wage
increase, at least for a period of ;time. According to
Rivera, in. August or September 1983-he asked ,Rosen-
berg to put the remaining portion. of the wage increase
into effect He stated that Rosenberg refused,- stating, that
the Company had no money and was not going to give
raises. The final upshot was that 10 cents-of the raise was
not given to the employees.
Rivera also testified that sometime in March 1983 he
discovered that an employee's hospital bill had not been
paid by Blue Cross-Blue Shield. He stated that when he
made ,inquiries he found out that the Company had
ceased making the-required payments. As a result, on
March 18, 1983, Rivera sent'a letter to the Company as
follows: -
This is to inform you that due to the fact you
have not complied with the Union Contract dated
December 14, 1980, any medical expenses incurred
-by any Union member of Local' #222-S-that ordi-
narily would have been covered by Blue Cross and
Blue Shield, the Union will hold Excelsior Pet
Products, Inc. and Mr. Samuel Rosenberg, Presi-
dent of said Corporation personally responsible -for
payment of the medical expense until. such time that
the Union is informed by' Blue Cross and Blue
Shield that the Union employees- are fully covered
and issued I.D.-cards. -
2 Rosenberg testified that Zunta had the power to hire and fire I
therefore find that Zunta is a supervisor within'the meaning of Sec' 2(11)
of the Act
On July 19, 1983, Rivera sent a followup letter which
reads:
Please be advised that. you ,are in violation of Ar-
ticle 21 of the collective bargaining agreement
which states you are to provide Blue Cross and
Blue Shield coverage for all employees. You will be
held personally -liable for any cost incurred by any
of your employees, because of your failure to pay
,the necessary premium.
Regarding-the Blue Cross-Blue Shield question, Rosen-
berg testified that when he initially set up the plan with a
Mr. Casale, they agreed to modify the payment forms to
a certain extent to accommodate the fact that the Re-
spondent had a degree of turnover. Rosenberg stated
that he followed the procedure of remitting quarterly
payments to Blue Cross-Blue Shield for every, employee
on the payroll for about 1-1/2 years. According to
Rosenberg, there came a time when he received a call
from a 'clerk of the insurance company complaining
about the-way he was filling in the forms that were sup-
posed to accompany the payments. He stated that after
he explained that his method of filling out the forms had
been accepted all along, the clerk said that Blue Cross-
Blue Shield did not want him as a client any. longer. Ac-
cording to Rosenberg, about • 3 weeks later Casale called
him, stating that he wanted to straighten the problem out
and get the Company back, into the plan Rosenberg
gave a noncommitted response because at this point he
admittedly had no intention 'of resuming his participation
in or payments to Blue Cross-Blue Shield. He never got
back to Casale about straightening out the problem.
In September 1983, the Union gave notice of its desire
to negotiate a new contract to replace the contract that
was soon to expire. According to Rivera, he met with
Rosenberg in late November 1983. He stated that he
asked the Company to reinstate the contract provisions
that had been breached (i.e, the 25-cent raise, the pay-
ments to Blue Cross-Blue Shield, and the payments to
the welfare fund). Rivera also stated that he proposed
that the new contract contain a 30-cent-per-hour raise,
better vacations, and two additional holidays. He testi-
fied that, Rosenberg said that he could not give anything
and that he had no money.
According to Rivera, he met again with. Rosenberg in
-early December 1983. He stated that he told Rosenberg
that the employees were willing to keep their present
fringe benfits as is , but wanted a 25-cent-per-hour raise.
He stated that he was looking for a 1-year contract and
that Rosenberg said he had no money and could not give
anything. According to Rivera, Rosenberg made no
counterproposals and the meeting ended with agreement
to meet again' on December 13. -
Rivera testified that a third meeting was held on De- -
cember 13, at which time the Union requested that the
previous contract benefits be reinstated and that a new
contract contain a 25-cent raise. Rivera stated that after a
caucus with employees, the Union cut its wage demand
to $10 pei- week. He stated that Rosenberg responded
that he could not give anything. According to Rivera, at
a meeting with employees that day, they agreed to-hold
EXCELSIOR PET PRODUCTS
off on further negotiations for 3 or 4 weeks without
striking. Rivera also testified that later on December 13
he had a conversation with Supervisor Zurita, who said
that Rosenberg had told him that he was not -going to
sign a union contract. (Zurita did not testify.) -
Although perhaps somewhat different in detail, Rosen-
berg's version of the negotiations in December 1983 is
not very different. He testified that about 2 weeks before
the contract was to expire, he met with Rivera at the
shop. Rosenberg stated that he told Rivera that it was
impossible for him to sign a contract with any kind of
increase whatsoever. He stated he told Rivera that the
Company had no money, and if he could get the Gov-
ernment to put duties on imports he would be happy to
give raises. According to Rosenberg, Rivera went to talk
to the employees after which he said that the - men
wanted a $25-per-week increase. Rosenberg stated that
he responded, "Completely impossible." Rosenberg as-
serted that he told Rivera to bring auditors up to look at
the books. He stated that after Rivera again spoke to the
employees, Rivera said, "[L]ets leave it alone for awhile,
and maybe you will feel better in a week or so."
According to Rosenberg, Rivera came to the shop
about a week later and, after speaking to the employees,
said that they would accept a $10-a-week raise. Rosen-
berg stated he told Rivera that he -could not afford it,
that there were no profits, and that he could not sign the
contract.
. Upon the expiration of the. contract, the Company
ceased "deducting dues from the employees' wages. Also,
it stopped making the payments to the welfare fund of
$14 per man, per month. As to the latter payments, there
is no dispute as to the fact that this was done without
notice to the Union.
According to- Rivera, in mid-January 1984, he went to
see Rosenberg and asked if things were better and if
Rosenberg was now willing to negotiate a contract. He
stated that Rosenberg said that things were bad and that
he was not going to negotiate "no contract." Rivera re-
counted another meeting in February where he told
Rosenberg that the Union had filed -unfair labor practice
charges, but that if they could negotiate a contract, ev-
erything would be okay. He stated that -Rosenberg re-
sponded that he had no money and could not negotiate a
contract., According to Rivera, he had a number of simi-
lar conversations with Rosenberg in April through Octo-
ber 1984. He stated that dust 1 week before the trial of
this case, Rosenberg told him that he was willing to sign
a contract provided it had nothing in it . Rivera stated
that Rosenberg said he would sign a contract with no-
medical coverage, no holidays, no vacations, and no
money, that he would sign such a piece of paper just for
the heck of it.
According to Rosenberg, he spoke to Rivera on a
number of occasions after January 1984 and Rivera asked
him why he was being so stubborn. He stated that after
the complaint issued, he attended a conference with the
Union's representatives wherein he told them that the
Company was losing money and could not sign a con-
tract that would cost the corporation one penny. Ac-
cording to Rosenberg, about 3 days later, Rivera came to
his office to discuss a contract. He stated he told Rivera
761
that he could not get it through Rivera 's head that the
Company was losing money . (Actually, according to
Rosenberg , by this time things had picked up a little and
the Company had recently hired two new employees to
bring the total complement , including Zurita , up to six. I
do not know ,- however , whether this means that the
Company at this time was profitable .) Rosenberg stated
that Rivera offered to accept a contract with the same
terms as the one which had expired , with no increases,
provided the Company resumed payments to the welfare
fund . He stated he told Rivera that he was tired of fight-
ing and would agree to Rivera 's offer . According to
Rosenberg , Rivera said he would have to clear such an
agreement with other people in the Union and would get
back to him. Rosenberg stated that about a week later
Rivera called to say that such an agreement was not ac-
ceptable to the Union . According to Rosenberg; he re-
plied that because New York State had just passed a law
banning the sale of exotic birds , he, too, could not go
along with such a contract . Incidentally , Rivera denied
that he and Rosenberg ever made such an agreement.
However , in light of Rosenberg 's testimony , this dispari-
ty of testimony is not really material to the outcome of
the case.
In describing his intentions regarding the negotiations
with the Union , Rosenberg testified as follows:
I'd be more than happy to sign any contract the
Union gives me to sign as long as it does not cost
Excelsior Pet Products one penny . When Excelsior
Pet Products gets to the point of being able to pay
an increase , they will be the first ones to be called
in to sign a contract.
B. Discussion
As stated by the Board in North Coast Cleaning Serv-
ices, 272 NLRB 1343, 1344 (1984):
The duty to meet for the purpose of bargaining is
imposed by Section 8(d) of the Act which requires,
inter alia , that the parties "meet at reasonable times
and confer in good faith with respect to wages,
hours, and other terms and conditions of employ-
ment , or the negotiation of an agreement . . . .
The determination of whether an employer has met
its obligation to bargain must be based on the "to-
tality" of its conduct. Although the duty to bargain
does not compel a party. to make concessions or
agree to any proposals, it does require certain af-
firmative actions such as entering "into discussion
with an open and fair mind, and a sincere purpose
to find a basis of agreement." As the Supreme
Court has ruled:
Collective bargaining, then, is not simply an oc-
casion for purely formal meetings between man-
agement and labor, while each maintains an atti-
tude of "take it or leave it"; it presupposes a
desire to reach ultimate agreement , to enter into
a collective bargaining contract.
762- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consistent with this, a party's "failure to do little
more than reject (demands)" has been found "indic-
ative of a failure to comply with [the] statutory re-
quirement to bargain in good faith."
In the present case, I have no doubt as to financial dif-
ficulties faced by the Company as testified to by Rosen=
berg. The evidence shows that from 1980, when the Re-
spondent employed about 14 to 15 employees, the em-
ployment complement has been reduced to about 5 or 6
when this case was heard Indeed, the evidence shows
that the Union and the employees, were aware of the
Company's plight as they were willing to forgo, on a
temporary basis, a portion of the 25-cent-per-hour wage
increase scheduled, to go in effect on December 14, 1982.
The fact that the Company was in poor financial con-
dition does not, however, relieve it of its duty to bargain
in good faith. No doubt the Company's economic condi-
tion should be taken into account during the negotiations
and thereby serve as the frame in which bargaining takes
place. As such, it would not be unreasonable in such cir-
cumstances for a company to offer few if any improve-
ments in "the collective-bargaining agreement. Indeed it is
not unknown for companies in dire economic straits to
ask for and obtain "give backs" of previously obtained
contractual benefits. Thus, in the context of a company's
economic difficulty, it is reasonable to expect the compa-
ny's bargaining posture-to be other than generous. Nev-
ertheless, although it is perfectly legal for a company to
engage iii hard bargaining, it is another thing to rely on
its poor economic circumstances as an excuse to avoid
entering into any contract at all.
Based on the record in this case, it is my opinion that
Rosenberg, on behalf of his Company, sincerely believed
that if he made a new contract with the Union there
would be no possibility that his business would survive.
The evidence shows that throughout the negotiations,
and despite the Union's obvious willingness to make very
modest contract proposals, the Respondent simply reject-
ed the Union's proposals without offering any alterna-
tives other than a "contract" which would not cost the
Company a "dime." Also, there is the uncontradicted
testimony of Rivera that on December 13, 1983, he was
told by Supervisor Zurita that Rosenberg was not' going
to sign a contract. Indeed, Rosenberg's own account of
his bargaining intentions indicates to me that he would
not sign a contract so long as the Company was unprof-
itable 3 Moreover, to my mind, Rosenberg's intentions
regarding the making of a new contract are revealed to a
degree by his willful breach of the old contract in sub-
stantial respects. Therefore, based on the entire record in
this proceeding, it is concluded that the Respondent en-
gaged in negotiations without an intention of reaching an
agreement and thereby bargained in bad faith, in viola-
tion of Section 8(a)(1) and (5) of the Act.
The General Counsel also alleges that the Respondent
violated the Act by unilaterally changing certain terms
and conditions of employment which had previously
been agreed to. In this regard I agree with the General
Counsel's contentions.
The 1980 to 1983 contract contains a specific provision
regiiiring- the Company to provide, at its own expense,
Blue Cross-Blue Shield medical coverage for its employ-
- ees. This the Company did in 1980 and continued to do
for the next 1-1/2 years. When there arose a disagree-
ment between Blue Cross-Blue Shield and Rosenberg
over the manner in which he made his payments, the
policy was canceled by the carrier. Thus, Rosenberg
seems to argue that he was not at fault for the termina-
tion of this medical insurance policy. However, as
Rosenberg acknowledged, when a representative of Blue
Cross-Blue Shield offered to help straighten out the
problem, Rosenberg gave -a noncommital 'response and
never called back Clearly, the cancellation of the Blue
Cross-Blue Shield policy was viewed by Rosenberg as
being a blessing in disguise and he admittedly had no in-
tention of working out the problem or of resuming this
medical coverage for his employees. In this respect, the
Company was clearly breaching the existing labor agree-
ment.
By the same token, the Respondent breached the con-
tract when- it failed-to put into effect the full amount of
the wage increase (25 cents) as of December 14, 1982. In
this situation, however, it is clear that the Union's repre-
sentative agreed to waive this change in the contract
provided the full wage increase was later given around
'July or August 1983. When that period expired, Rivera
asked the Company to give the full amount of the con-
tractual wage increase and Rosenberg refused.
In Triangle Appltanee, 265 NLRB 1473, 1475-76 (1982),
the Board stated:
It is well established, however, that an employer
acts in derogation of its bargaining obligation under
Section 8(d) of the Act, and thereby violates Sec-
tion 8(a)(5) and (1) of the Act, when, during the life
of a collective-bargaining agreement between it and
a union, it unilaterally modifies'or otherwise repudi-
ates terms and conditions of employment contained
in the agreement. It. is equally well established that
economic necessity is not cognizable as a defense to
the unilateral repudiation of monetary provisions in
the collective-bargaining agreement.4
In view of the above, it is concluded that the Re-
spondent, by breaching its contract with the Union with
respect to the wage increases (as of August 1983) and as
to its Blue Cross-Blue Shield commitments, has violated
Section 8(a)(1) and (5) of the Act. '
I also conclude that by terminating its contractually
obligated payments to the Union's welfare funds after
,the 1980 to 1983 contract expired, the-Respondent simi-
larly violated Section 8(a)(1) and (5) of the Act. No
3 I do not view Rosenberg 's testimony regarding his agreement to a - * See also Morelli Construction Co, 240 NLRB 1190 (1979)
contract (apparently sometime shortly before the trial) as being relevant s The contract, in addition to providing for Blue Cross-Blue Shield
By his own account, even if he did make such an agreement with Rivera , coverage , also required payments to the Union's welfare fund Through
he was not willing to consummate that agreement a week later I should this fund the Union operates a clinic to which employees can go for cer-
note that Rivera denied this entire transaction tain limited types of medical services
EXCELSIOR PET PRODUCTS
doubt this will come as a surprise to the Respondent,
which ceased making these payments upon the.-expiration
of ' the contract. (Rosenberg was not represented by
counsel.) -
Pursuant to Board, precedent, the provisions of a col-
lective-bargaining agreement, exclusive of such items as
checkoff and union-security provisons, survive the expi-
ration of the contract until such time as a new agreement
is made, until an impasse is reached,,oi until the compa-
ny is legally discharged in .some other manner from its
obligations to bargain with a labor organization. Acme
Wire Works, 251 NLRB 1567, 1568 (1980). In Hinson v.
NLRB, 428 F.2d 133 (8th Cir. 1970),.•the court enforced
the Board's Order requiring the respondents to make
payments to various funds even after the expiration of
the collective bargaining agreement: -It rejected 'the re-
spondents' reliance on H. K, Porter Co. v NLRB, 397
U.S. 99,(1970), and stated (428 F.2d at 138): - •
The order does not compel petitioner to agree to
any new or different contract, provision; it simply
requires him to abide by-an obligation once extant
by reason of the binding contract but then continu-
ing, on after its ' expiration, in limited form, not' by
reason of the contract itself but because of the dictates
of the policy embodied in the National Labor Rela-
- tions Act.
As stated by the Board in" Sacramento Union, 258
NLRB 1074,4075,(1981):
The Board has held that an employer's duty to
bargain over changes in established terms and con-
ditions of employment is not relieved by the expira-
tion of a' collective -bargaining agreement. Although
the expiration of a contract may ' permit ari employ-
er to negotiate new and different terms, it may not,
absent an impasse or waiver by the Union, unilater--
ally change established practices with respect to
mandatory subjects 'of bargaining, even if these
practices may have constituted a deviation from the
letter of the parties' expired agreement . Thus, con-
trary' to the Administrative Law Judge's rationale,
the relationship of the Union's general .laws govern-
ing priority vis-a-vis the expired contract is" not de-
terminative of whether Respondent was free to es-
tablish its , own priority criteria upon expiration of
the contract. 'Rather,- the issues before us are wheth-
er Respondent's conduct constituted a departure
from its past -practice which significantly affected
the terms and conditions of employment of the bar-
gaining unit 'and whether such 'action was taken
without bargaining. with the Union. - "
As I have 'previously concluded that 'the Respondent
did' not bargain in good faith, `it is concluded that no le-
gitimate • impasse was :reached.' Likewise, as ' there is no `
evidence. of any other factor which would have relieved
the Respondent of its obligation to bargain --with the
Union, I can only conclude that the Company's failure to
continue payment to the,welfare fund was a violation of
Section 8(a)(1) and . (5) of the Act. . -11 -
763
CONCLUSIONS OF LAW '
_ 1. Excelsior Pet Products Inc. is an employer engaged
in commerce within the meaning of Section 2(2),-(6), and
(7) of the Act.
- 1. Local 222-S, Production Service and Sales District
Council, H.E.R.E., AFL-CIO is a . labor organization
within the meaning of Section 2(5) of the Act.
3. • By engaging in negotiations for a, new contract
without a. genuine . intention of reaching agreement, the
Respondent has violated Section 8(a)(1) and (5) of the
Act.
4. By failing in August 1983 to grant wage increases in
accordance with the terms and conditions of its collec-
tive-bargaining agreement with the Union, which con-
tract had a term to expire on December 14, 1983, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act;
5. By failing to continue to make payments to Blue
Cross-Blue Shield as required by the aforesaid contract,
the Respondent has violated Section 8(a)(1) and (5) of
the Act.
6.' By terminating" payments to the Union's welfare
fund -upon the expiration of the aforesaid contract, the
Respondent has violated Section 8(a)(1) and (5) of the
Act, '
.
' .1
'
- - •
7.-The aforesaid •unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.. • • '
REMEDY
Having-found that the Employer has engaged in cer-
tain unfair labor practices, I shall- recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.,. -
With respect to the failure of the Respondent to grant
the full amount of the agreed-upon wage increases as re-
quired in the 1980-1983 contract, I shall recommend that.
these be,granted upon the Union's request. However, as
the evidence shows that the Union, with the employees'
consent, agreed to postpone this wage increase for about
6 months, and as the 10(b) date would be August 14,
1983, I shall recommend that the wage increase be retro-
active only to August 14, 1983.
Regarding the Blue Cross-Blue Shield payments, I'
shall recommend that the Respondent, on the Union's re-
quest , reinstate this health insurance policy until such
time as the Respondent negotiates in good faith with the
Union-to-an impasse or to a new agreement which elimi-.
nates the requirement to maintain such policy. I shall
not, however, recommend that the Respondent make any
retroactive payments to Blue Cross-Blue 'Shield as such
payments, in view of the cancellation of the policy,
would amount to a windfall to Blue Cross-Blue Shield.
Nevertheless, if any employee or former employee has
incurred medical expenses while employed by the Re-
spondent which would have been covered by the Blue,
Cross-Blue Shield policy, the Respondent shall reimburse
employee for all such expenses: - -
As to the welfare fund through- which, inter alia, the
Union operates a' health clinic , it, is recommended that
upon the Union 's request , the Respondent, resume pay-
ments to the fund on behalf of its employees in accord-
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance with the terms of the 1980 to 1983 contract, retro-
actively to December 14, 1983, and continue such pay-
ments until such time as the Respondent negotiates in
good faith with the Union to an impasse or to a new
agreement which eliminates the welfare fund contribu-
tions.
In all cases where the Respondent is required to; make
restitution, interest shall be required in accordance with
Florida Steel, 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I 'issue the following recommend
ed6
ORDER
The Respondent, Excelsior Pet Products Inc., Brook-
lyn, New York, its officers, agents , successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local 222-S,
Production Service and Sales District Council, H.E.R.E.;
AFL-CIO by conducting negotiations with that labor
organization without any intention of reaching a collec-
tive-bargaining agreement.
(b) Refusing to bargain with the Union by unilaterally
refusing to pay. the full amount of the wage increases
called for in_ the 1980 to 1983 collective-bargaining
agreement or by failing to make payments to Blue Cross-
Blue Shield or to the welfare fund as required by the
aforesaid contract.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action' iiecessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the aforesaid
Union as the bargaining representative of the employees
in the appropriate unit described below as to rates of
pay, wages, hours, and other terms and conditions of em-
ployment and, if an. understanding is reached,- embody
such understanding in a signed agreement.
(b) On request, reinstate the Blue Cross-Blue Shield
policy until such time as the Respondent negotiates in
good faith with the Union to an impasse or to a new
agreement which eliminates the requirement to maintain
such policy.
(c) Make whole any employee or former employee
who incurred medical expenses which would have been
covered but for the lapse of the Blue Cross-Blue Shield
policy.
(d) On request, grant the remaining portion of the 25- _
cent-per-hour wage increase called for in the 1980 to
1983 contract, retroactive to August 14, 1983.
(e) On request, resume payments to the welfare fund,
retroactive to December 14, 1983, in accordance with
the terms of the 1980 to 1983 contract and continue such
payments until such time as the Respondent negotiates in
6 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.
good faith with the Union to an impasse or "to' a new
agreement which eliminates the' welfare fund contribu-
tion.
(f) Post at its plant copies of the attached notice
marked "Appendix "7 Copies of the notice, on forms
provided by the Regional Director for Region '-29, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and -maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(g) Notify the Regional Director in writing within 20
days from. the date -of this Order ' what steps the Re-
spondent has taken to comply.
3. The appropriate unit is all production, maintenance,
and shipping employees.
IIf this Order is enforced by a Judgment of a United States Court of
Appeals, 'the words' in the notice reading -`Posted by Order of the Na-
tional Labor Relations .Board" shall read "Posted Pursuant to a Judgment
of the United States Court of-Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
`NOTICE To EMPLOYEES
POSTED BY ORDER OF'THE
NATIONAL LABOR RELATIONS BOARD -
An Agency of the United States Government
WE WILL NOT "refuse to bargain collectively with
Local 222-S, Production Service and Sales District
Council, H.E.R.E., AFL-CIO by conducting negotia-
tions with that labor organization without any intention
of reaching a collective-bargaining agreement.
WE WILL NOT refuse to bargain with the-.Union by
unilaterally refusing to pay the full amount of the wage
increases called for in the 1980 to 1983 collective-bar-
gaining agreement cr by failing to make' payments to
Blue Cross-Blue Shield or to the welfare fund as re-
quired by the aforesaid contract. "
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.
WE WILL, on request, bargain collectively with the
aforesaid Union as, the bargaining representative of the
employees in the appropriate unit described below as to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL, on request, reinstate the Blue Cross-Blue
Shield policy until such time we negotiate in good faith
with the Union to an impasse or to a new agreement
which eliminates the requirement to maintain such
policy. • , .
WE. WILL make whole any employee or °former em-
ployee, who incurred medical expenses which would
EXCELSIOR PET PRODUCTS 765
have been covered but for the lapse of the Blue Cross-
Blue Shield policy.
WE WILL, on request, grant the remaining portion of
the 25-cent-per-hour wage increase called for in the 1980
to 1983 contract, retroactive to August 14, 1983.
WE WILL, on request, resume payments to the welfare
fund, retroactive to December 14, 1983, in accordance
with the terms of the 1980 to 1983 contract and continue
such payments until such time as we negotiate in good
faith with the Union to an impasse or to a new agree-
ment which eliminates the welfare fund contribution.
The appropriate unit includes all production, mainte-
nance, and shipping employees, exclusive of all other em-
ployees, guards, and supervisors as defined in the Act.
EXCELSIOR PET PRODUCTS INC.