Farina Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1993

310 N.L.R.B. 318 (N.L.R.B. 1993)

318
310 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent also filed a motion to reopen the record to intro-
duce evidence concerning the Union’s bargaining position and pro-
posals proffered at the parties’ posthearing bargaining sessions. The
General Counsel and the Union oppose the motion. Pursuant to Sec.
102.48(d)(1) of the Board’s Rules and Regulations, the Respondent’s
motion is denied because the additional evidence, if adduced and
credited, would not require a different result.
2 In adopting the judge’s conclusion that the Respondent unlaw-
fully refused to bargain over its December 1989 layoffs, we find it
unnecessary to pass on the judge’s drawing an adverse inference
from the Respondent’s failure to comply with the subpoena item re-
lated to financial information. In this regard, we note that, even ab-
sent the subpoenaed books and records, it is clear from the record
that the Respondent did not establish compelling economic cir-
cumstances justifying its failure to provide the Union with notice
and an opportunity to bargain over the layoffs.
We further disavow the judge’s statements, in connection with his
ruling on this subpoena item, that the conduct of the Respondent and
its attorney was, respectively, contumacious and unethical. However,
as to the Respondent’s assertion that the judge’s conduct was biased,
hostile, partisan, and evidenced prejudgment of the case, after careful
examination of the record, we are satisfied that this allegation is
without merit. Therefore, we reject the Respondent’s request that the
judge be disqualified and the case be remanded for a hearing de
novo.
The judge inadvertently stated that the Regional Office’s dismissal
of the Respondent’s objections and certification of the Union, the
Board’s Order affirming the Regional Director’s decision, and the
Union’s initial request for information occurred in 1991 rather than
in the correct year, 1990.
1 On January 14, 1991, following the close of the hearing in this
case, the Respondent filed with me a motion that he recuse himself.
The motion in denied.
2 The principal docket entries in this case are as follows:
Charge in Case 1–CA–27051, filed by Sheet Metal Workers Inter-
national Association, AFL–CIO, Local Union No. 17 (the Union)
against the Respondent on February 14, 1990; complaint in Case 1–
CA–27051 issued against the Respondent by the Regional Director
for Region 1 on April 17, 1990; Respondent’s answer filed on May
1, 1990; charge filed by the Union against the Respondent in Case
1–CA–27207 on April 4, 1990, and amended on April 12, 1990;
complaint in Case 1–CA–27207, issued against the Respondent by
the Regional Director for Region 1, on June 7, 1990, and consoli-
dated for hearing with the first complaint in this case; Respondent’s
answer filed on June 18, 1990; hearing held in Boston, Massachu-
setts, on November 14 and 15, 1990; briefs filed with me on or be-
fore January 28, 1991.
3 Respondent admits, and I find, that it is a corporation which
maintains an office and place of business in Charlestown, Massachu-
setts, where it is engaged in the fabrication, installation, and service
of heating, air-conditioning, and plumbing systems. In the course and
conduct of this business, the Respondent annually purchases and re-
ceives at its Charlestown, Massachusetts place of business directly
from points and places located outside the Commonwealth of Massa-
chusetts goods and materials valued in excess of S50,000. Accord-
ingly, the Respondent is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a
labor organization within the meaning of Sec. 2(5) of the Act.
Farina Corporation and Sheet Metal Workers
International Association, AFL–CIO, Local
Union No. 17. Cases 1–CA–27051 and 1–CA–
27207
January 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 25, 1991, Administrative Law Judge
Walter H. Mahoney issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision.1
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Farina Corporation, Bos-
ton, Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Beth Ann Wolfson, Esq., for the General Counsel.
Harold N. Mack, Esq. and Nathan L. Kaitz, Esq., of Boston,
Massachusetts, for the Respondent.
Paul F. Kelly, Esq., of Boston, Massachusetts, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me1 at Boston, Massachu-
setts, on a consolidated unfair labor practice complaint,
amended at the hearing,2 which alleges that Respondent Fa-
rina Corporation3 violated Section 8(a)(1) and (5) of the Act.
More particularly, the consolidated complaint alleges that the
Respondent unilaterally changed the terms and conditions of
employment of five employees: Anthony Ciorlone, Mark
Boyd, Joseph Dillon, James Carroll, and Mark Therein by
laying them off, and that it did so without first notifying
their collective-bargaining representative and extending to
that representative an opportunity to bargain about both the
decision to lay off and the effects following from such a lay-
off. The complaint also alleges that the Respondent failed to
319FARINA CORP.
4 The General Counsel filed a motion, which was unopposed, seek-
ing to correct the transcript in 23 particulars. The motion is granted.
produce certain information requested by the Union and that
it unduly delayed the production of other information which
was requested for bargaining purposes. The Respondent
countered with a host of objections—that it had no obligation
to bargain over the decision to lay off five sheet metal work-
ers; that it had no obligation to bargain with the Union until
the Board completed the processing of objections to the con-
duct of an election which the Respondent filed following a
union victory at a representation election held on December
1, 1989; that the Union waived any right it had to bargain
over the effects of the layoff; that the Respondent in fact of-
fered the Union an opportunity to bargain concerning the lay-
off some time after the layoff had been effectuated; and that
it did produce in a timely fashion all the information it was
legally obligated to produce. On these contentions the issues
herein were joined.4
FINDINGS OF FACT
A. The Unfair Labor Practices Alleged
The Respondent is a closely held corporation that is owned
and controlled by its president, Paul J. Farina. Since 1966 it
has been engaged in the heating and air-conditioning busi-
ness in the Boston metropolitan area and elsewhere in New
England. Most of the Respondent’s business involves indus-
trial and commercial projects. It has few residential cus-
tomers. The Respondent fabricates heating and air-condi-
tioning materials in its shop and installs them at construction
sites. In its operation it employs sheet metal workers, plumb-
ers, and pipefitters. The labor dispute which gave rise to this
case is limited to its sheet metal workers.
In the fall of 1989, the Union conducted an organizing
drive limited to the Respondent’s sheet metal employees. On
December 1, 1989, an election was conducted among these
employees by the Board. The Union won by a vote of eight
to three (Case 1–RC–19309). Shortly after the election, the
Respondent filed objections to the conduct of the election
which directed their principal attention to alleged improper
statements made by certain supervisors in support of the
Union. On January 10, 1991, the Regional Office dismissed
the objections and certified the Union. The Respondent ap-
pealed the Regional Director’s action to the Board. On July
11, 1991, the Board issued an order affirming the Regional
Director’s decision.
Shortly after the results of the December 1 election be-
came known, the Respondent laid off five sheet metal work-
ers. These individuals are:
Name Date of Layoff
Mark Boyd December 8, 1989
Anthony Ciorlone December 11, 1989
James Carroll December 13, 1989
Joseph Dillon December 16, 1989
Mark Therein December 21, 1989
There is no dispute that, prior to the above-recited dates, the
Respondent gave the Union no formal advance notice of its
intention to make these layoffs and that no bargaining oc-
curred between the parties concerning these actions. Since
that time, none of these employees has been offered rein-
statement.
On January 22, 1991, a few days after receipt of the cer-
tification of the Union by the Regional Director, Thomas J.
McKenna, the Union’s organizer, wrote the following letter
to Farina:
Local 17 hereby demands that Farina Corp. satisfy
its statutory obligation to bargain with Sheet Metal
Workers, Local 17, over wages, hours and conditions of
employment for all sheet metal fabricators and install-
ers.
In order to prepare for this meeting Local 17 de-
mands the following information:
1. A list of all employees who have performed sheet
metal work in the shop or in the field for Farina Corp.
during the past twelve months.
2. The number of hours each such employee spent
performing that work.
3. The hourly rate of each such employee.
4. The names and addresses of all employees cur-
rently performing sheet metal work with their current
rates of pay.
5. The names and addresses of all laid off unit em-
ployees and all unit employees receiving workers com-
pensation.
6. A list of all subcontractors who have performed
sheet metal work under Farina Corp., together with the
dollar value of the work subcontracted to each.
7. A summary description of all benefits currently re-
ceived by unit employees.
We have recently learned that the company is claim-
ing that the men who were laid off in December were
let go on account of lack of work. Local 17 demands
an opportunity to bargain over the decision to lay these
employees off, the method of selecting the laid off em-
ployees and the impact of the layoff on the unit em-
ployees. Local 17 also demands that the laid off em-
ployees be recalled before any non-unit employee per-
form sheet metal work.
Please contact the undersigned regarding when the
requested information will be available. I will need a
day or two to look at the information before we meet.
McRenna’s letter was answered by Harold N. Mack, Esq.,
the Respondent’s attorney. In a letter, dated February 1,
1990, Mack told McKenna:
Your letter dated January 22, 1990, regarding the above
company has been referred to me for response. The
company is filing an appeal to the National Labor Rela-
tions Board from the Supplemental Decision and Cer-
tification of Representative dated January 10, 1990.
Pending this appeal your request for information, to the
extent it may be relevant, is premature.
After filing the Respondent’s appeal to the Board from the
Regional Director’s certification, Mack apparently had sec-
ond thoughts. He dispatched a second letter to McKenna,
dated February 28, which stated:
In response to your letter of January 22, 1990, Farina
Corporation is prepared to meet and discuss the imple-
mentation and/or effects of its decision resulting in the
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
layoff of certain employees in December 1989. The
Company proposes either March 5, 7, 12 or 13 for such
meeting.
The Company’s willingness to meet is not to be con-
strued as an acknowledgment that it was or is required
by law to do so. The Company also reserves all its
rights as to its challenge of the validity of the election
including its objections which are now pending review
by the National Labor Relations Board.
An exchange of correspondence between the parties con-
tinued unabated. The Union opted to place this responsibility
in the hands of its attorney, Paul F. Kelly, Esq. In a reply
to Mack, Kelly noted that Mack’s February 28 letter said
nothing about the Union’s demand for information and char-
acterized the offer of limited negotiations as a transparent at-
tempt on the part of the Respondent to reduce its liability by
recharacterizing the layoffs. He renewed the Union’s request
for information that McKenna had made in January and in-
sisted that the information which had previously been re-
quested was relevant to the layoff issue. Kelly renewed the
Union’s contention that the Respondent was presently obli-
gated to bargain over all contract matters, questioned the le-
gitimacy of partial bargaining, and asked rhetorically whether
the Respondent would be willing to enter into a written
agreement concerning layoff questions. Mack’s response,
dated March 21, was simply a renewal of the original offer
for limited bargaining and a request to Kelly to call or write
him to set up a meeting.
In the next salvo in this exchange of correspondence,
Kelly sent a letter, dated April 2, renewing the original re-
quest for information that McKenna had already made, and
added a few new items:
All documents, including invoices, payroll records, and
work logs, that 1) identify projects on which or for
which Farina Corp. has performed sheet metal work
during the period November 1, 1989, to present; 2) de-
scribe the natures and extent of the sheet metal work
performed on each project; 3) identify the employees
that performed such work; and 4) identify the days and
hours worked by each such employee.
They argued that the information was relevant to the initial
decision to lay off five sheet metal workers in December.
Mack refused the request. Mack wrote Kelly that the Com-
pany ‘‘has not and does not propose to bargain as to the de-
cision itself.’’
Following the Board’s decision of July 11, Mack wrote
McKenna on July 30 to information that the Respondent was
‘‘prepared to undertake collective bargaining negotiations.’’
He asked McKenna to contact him to set up a date. On Au-
gust 16, Mack sent Kelly a letter saying that he would for-
ward to him, within the next 7 to 10 days, certain informa-
tion that had been requested. On August 27, Mack sent cer-
tain promised documents. He provided the names of all em-
ployees who had performed sheet metal work in the pre-
ceding 12 months but listed the hours worked and rates of
pay for only some of the persons listed. Among the list of
current sheet metal employees the Respondent included the
names of the discriminatees in this case but did not include
the rates of pay or addresses of all the employees whose
names appeared on this list. It provided names and addresses
of laid-off employees or those drawing workmen’s com-
pensation, as well as a list of the current benefits.
Mack told Kelly in his letter that the Company did not
keep information concerning the number of hours worked by
persons other than sheet metal employees who perform sheet
metal work. Mack’s letter provided nothing relating to sub-
contractors who had performed sheet metal work and it made
no response to the information requested by Kelly on April
2. The parties had one collective-bargaining meeting on Sep-
tember 18, at which time the Union presented its proposals
to the Respondent. A second meeting was scheduled but was
later canceled by the Respondent. No bargaining has taken
place since that time.
B. Analysis and Conclusions
It is settled law that, when employees become represented
by a collective-bargaining agent, their employer may no
longer make unilateral changes in wages, hours, and terms
and conditions of employment as it was privileged to do be-
fore they opted for union representation. NLRB v. Katz, 369
U.S. 736 (1962). Accordingly, if the employer is contem-
plating any such changes affecting bargaining unit personnel,
it has a duty to notify the bargaining agent of the proposed
changes, afford that representative an opportunity to bargain
over the proposal, and, if bargaining is requested, meet with
the representative and bargain collectively in good faith con-
cerning the proposal before putting them into effect. One of
the many mandatory subjects of bargaining which falls under
this rule is the layoff of employees. Adair Standish Corp.,
292 NLRB 890 (1989). In a more mature labor relations con-
text than the one presented in this case, the matter of layoffs
is generally addressed by the seniority, management rights,
and grievance provisions of a collective-bargaining agree-
ment, go an employer covered by such a contract is generally
free to accomplish layoffs without additional bargaining so
long as it adheres to the provisions of the contract it has
agreed to. NLRB v. Advertisers Mfg. Co., 823 NLRB 1086,
1090 (7th Cir. 1987). However, where, as were, such matters
have not been incorporated into a contractual arrangement,
the employer is obligated to bargain over any decision to
make a layoff as well as the effects of any such decision.
Lapeer Foundry & Machine, 289 NLRB 952 (1988), and
cases cited therein. In the absence of a contract conferring
the right to lay off employees, layoffs are not a management
prerogative in a bargaining unit having union representation.
The fact that the contemplated layoff may be prompted by
bona fide economic reasons and is in no way discriminatorily
motivated does not remove it from the umbrella of the bar-
gaining obligation. San Antonio Portland Cement Co., 277
NLRB 309 (1985).
In the case at hand, the Respondent did not notify the
Union before it laid off five sheet metal workers in Decem-
ber 1988, nor did it give the Union an opportunity to bargain
over this decision before it was implemented. When the Re-
spondent asserts that it was under no such obligation, it is
simply wrong. Giving a union notice of a fait accompli or
giving no notice at all does not impose upon a union any ob-
ligation to demand bargaining under pain of having waived
its rights. Alpha Biochemical Corp., 293 NLRB 753 (1989).
In this case, the violation of the Act occurred in December
1989 when the Respondent issued layoff notices to five sheet
metal workers without observing the necessary preliminaries.
321FARINA CORP.
5 In lieu of such data, the Respondent offered an array of news-
paper clippings and other articles, some of which were not published
until nearly a year after the events in question, which say that the
building and construction industry was in bad shape in eastern Mas-
sachusetts. Conceding that this was so, it is irrelevant to the question
presented by the Respondent’s situation. Whether or not other em-
ployers were having economic difficulties is of no consequence in
passing on the Respondent’s defense. What is of importance is
whether the Respondent itself was in such dire circumstances that
it literally had no time to get a message through to the Union that
it was laying off five employees before taking the action it did. The
Respondent chose to hide this information from the Board and must
suffer the consequence of doing so.
What the Union did or failed to do thereafter has no bearing
on whether the Respondent violated the Act by its abrupt
unilateral actions.
The Respondent attempts to avoid the thrust of this finding
on two bases. First, it claims that it was under no duty to
bargain at all with the Union following the union victory at
the December 1 election until the Board upheld the results
of the election nearly 8 months later. Both the Regional Di-
rector and the Board dismissed the objections filed by the
Respondent but, in the nature of things, it took time before
these decisions could be made and announced. It is well set-
tled that an employer, faced with a union victory in a rep-
resentation election, who plays the waiting game does so at
its peril. Mike O’Connor Chevrolet-Buick-GMC Co., 209
NLRB 701 (1975); Clements Wire Co., 257 NLRB 1058
(1981); Angelica Healthcare Services, 284 NLRB 844
(1987). If its objections to the conduct of the election prove
to be meritless, as were the Respondent’s objections in this
case, any unilateral action taken during the pendency of the
objections and any refusal to bargain in response to a union
demand made during this period of time is a violation of
Section 8(a)(5).
The Respondent also seeks to excuse its conduct with the
claim that, in December 1989, it laid off the five
discriminatees named in the complaint because compelling
economic considerations prevented normal bargaining proce-
dures to come into play. This contention is also without
merit. Most layoffs are taken as a result of economic consid-
erations. However, business necessity is not the equivalent of
compelling considerations which excuse bargaining. Were
that the case, a respondent faced with a gloomy economic
outlook could take any unilateral action it wished or violate
any of the terms of a contract which it had signed simply
because it was being squeezed financially. Loss of a cus-
tomer account does not constitute a compelling economic
consideration justifying a failure to bargain. Angelica
Healthcare Services, supra. Nor does inconvenience to the
employer fall into that category. Clements Wire Co., supra.
The Board recently stated that a legitimate excuse from bar-
gaining about layoffs with a union could arise only in ex-
traordinary situations. Lapeer Foundry & Machine, supra.
There was nothing extraordinary about the Respondent’s po-
sition in December 1989.
In December 1989, the Respondent was not in bankruptcy
nor was it insolvent. Its assets had not been frozen and it
was still actively engaged in pursuing its regular business ac-
tivities. Despite the fact that its business volume was down,
it had subcontracted out to another company a $1.6 million
sheet metal job at the Hanscomb Air Force Base rather than
perform this work with its own sheet metal employees. It
continued to pay rent to Farina personally and to his wife for
the use of the Respondent’s headquarters building. In its cor-
porate fiscal year, which ended on June 30, 1990, the Re-
spondent earned a profit, and this fact was reported on both
its Federal and state income tax returns. In the face of its
plea of poverty, the books and records of the Respondent
were subpoenaed by the General Counsel to determine if
they would provide some verification or substantiation for
the proffered excuse which had been advanced for the refusal
to bargain in December 1989. Despite a direct order from me
to produce these records, the Respondent failed and refused
to do so, an act which amounted to contumacy on its part
and unethical conduct on the part of its attorney. In light of
these developments, I will draw an inference, requested by
the General Counsel, that, had these books and records been
produced in accordance with the Respondent’s legal obliga-
tion, they would have disclosed that, in December 1989, the
Respondent was faced with no compelling economic consid-
erations which would have prevented it from notifying the
Union and giving the Union an opportunity to bargain before
it decided to lay off five sheet metal workers.5 At the time
it committed the unfair labor practices here in question, the
Respondent’s stated position was not that it was prevented
from bargaining over layoffs because of an emergency situa-
tion but that it did not choose to do so before completing
a challenge to the results of the December 1 election. Ac-
cordingly, by failing to notify the Union in advance of its
intention to lay off five sheet metal workers and by failing
to afford the Union an opportunity to bargain respecting both
the decision and the effects of the decision, the Respondent
violated Section 8(a)(1) and (5) of the Act. I so find and
conclude.
The duty of an employer to provide a union with sufficient
relevant information to permit it to fulfill its duty as collec-
tive-bargaining representative is also well settled. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967). In determining
relevance, the Board uses a liberal discovery standard which
is more expansive than the one it might employ if the issue
to be resolved were the admission of a document into evi-
dence at a litigated hearing. The range of relevance is not
limited to the boundaries of the bargaining unit. See Brook-
lyn Union Gas Co., 220 NLRB 189 (1975), and cases cited
therein. In defending its refusal to produce the information
requested by McNally on January 22 and by Kelly on April
2, the Respondent asserted that the requests were premature,
that the information was irrelevant to bargaining, and that the
Union did not sufficiently justify the relevance of the infor-
mation it sought to obtain.
Like its obligation to bargain over layoffs, the general ob-
ligation of the Respondent to produce relevant requested in-
formation arose on December 1, 1989, the date the Union
won the election. This obligation could not be deferred by
the effort of the Respondent to challenge the results of the
election. The Union had no obligation to justify or explain
the relevance of most of the information it requested since
it dealt specifically and directly with bargaining unit employ-
ees. Such information is presumptively relevant and needs no
further demonstration from the Union on this point. Ohio
Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th
Cir. 1979); Calmat Co., 283 NLRB 1103 (1987). With re-
spect to the names of sheet metal subcontractors and the dol-
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 F. W. Woolworth Co., 90 NLRB 289 (1950).
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
lar volumes of their jobs, this question was brought into play
by the Respondent when it claimed that an economic emer-
gency prevented it from bargaining over the December 1989,
layoffs. Such information bears upon the layoff decision, the
effects of layoff, the question of recall, and other matters
normally discussed during collective-bargaining sessions,
such as no-subcontracting clauses. Having raised the question
on which the desired information has an obvious bearing, the
Respondent cannot then avoid the production of the informa-
tion by asserting that it deals with matters outside the bar-
gaining unit or that it is not relevant. NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956); Monarch Machine Tool Co., 227
NLRB 1880 (1977); Stanley Bldg. Co., 166 NLRB 984
(1967); Latimer Bros., 242 NLRB 50 (1979). The same ap-
plies to the information later requested by Kelly, which is
merely a detailed specification of the data that McNally had
demanded.
It is also well settled that an employer who unreasonably
delays the production of relevant information requested by a
union is guilty of a violation of the Act. B. F. Diamond
Construction Co., 163 NLRB 161, 176 (1967); Bundy Corp.,
292 NLRB 671 (1989), and cases cited; Valley Inventory
Service, 295 NLRB 355 (1989). In this case, the Respondent,
whose duty to furnish information arose when it was re-
quested in January and April 1990, did not provide any in-
formation at all until late August. Even then, it was remiss
in fulfilling the requests which had been made on it. This
delay was not excused by the pendency of objections to the
election any more than were the Respondent’s other
derelictions. Accordingly, I find that by refusing to furnish
the Union with certain information requested which was rel-
evant to the Union’s bargaining responsibilities and by its
unreasonable delay in furnishing the information it eventually
produced, the Respondent herein violated Section 8(a)(1) and
(5) of the Act.
CONCLUSIONS OF LAW
1. Farina Corporation is now, and at all times material, has
been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Sheet Metal Workers International Association, AFL–
CIO, Local Union No. 17, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time sheet metal duct fab-
ricators and installers employed by the employer at, or work-
ing out of, its Charlestown, Massachusetts location, but ex-
cluding office clerical employees, refrigeration employees,
plumbers and pipefitters, salesmen, managerial employees,
field foremen, guards, and supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive
collective-bargaining representative of all employees of the
Respondent employed in the unit found appropriate in Con-
clusion of Law 3, within the meaning of Section 9(a) of the
Act.
5. By refusing to bargain collectively in good faith with
the Union as the exclusive collective-bargaining representa-
tive of its bargaining unit employees concerning its decision
to lay off employees Mark Boyd, Anthony Ciorlone, James
Carroll, Joseph Dillon, and Mark Therien, and concerning the
effects of the layoffs; and by refusing to furnish the Union
in a timely fashion or to furnish it at all with information
requested by the Union in letters dated January 22 and April
2, 1990, the Respondent herein violated Section 8(a)(1) and
(5) of the Act.
6. The aforesaid unfair labor practices have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend to the Board
that it be required to cease and desist therefrom and to take
certain affirmative actions designed to effectuate the pur-
poses and policies of the Act. The recommended Order will
require the Respondent to offer to Mark Boyd, Anthony
Ciorlone, James Carroll, Joseph Dillon, and Mark Therien
full and immediate reinstatement to their former or substan-
tially equivalent employment and to make them whole for
any loss of earnings which they may have sustained by rea-
son of the discriminations practiced against them, in accord-
ance with the Woolworth formula,6 with interest at the rate
prescribed by the Tax Reform Act of 1986 for the overpay-
ment and underpayment of income taxes. New Horizons for
the Retarded, 283 NLRB 1173 (1987).
The Board has frequently held that the standard reinstate-
ment and backpay remedies used in discriminatory discharge
cases be ordered in cases involving discharges which violate
Section 8(a)(5) of the Act. Flex Products, 278 NLRB 417
(1986); Adair Standish Corp., 292 NLRB 890 (1989);
Clements Wire Co., supra, and cases cited therein, 257
NLRB 1058, 1059 fn. 8. In no way should backpay be tolled
in this case because of the Respondent’s half-hearted offer to
bargain over the effects of the layoffs during the pendency
of the objections before the Board, while at the same time
refusing to bargain with the Union concerning all the other
terms and conditions which go to make up a conventional
collective-bargaining agreement. Kelly correctly pointed out
to Mack that Mack’s February 28 offer to bargain was a
sham and was made simply to prevent backpay from con-
tinuing to run. Good-faith bargaining requires much more
than the observance of a few rubrics and the laying out of
a paper trail, marked by certain stereotyped words and
phrases. Good-faith bargaining requires an employer to meet
and discuss with a union all the items outlined by Section
8(d) of the Act in a frame of mind which actively seeks the
achievement of a complete collective-bargaining agreement.
There is no such thing as partial good-faith bargaining. Hav-
ing failed to address the totality of its obligation in this man-
ner, the Respondent cannot be heard now to claim any finan-
cial or other benefit from desultory efforts designed only to
save money while wasting time.
I will also recommend to the Board the posting of the
usual notice advising employees of their rights and of the re-
sults in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
323FARINA CORP.
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Farina Corporation, Boston, Massachu-
setts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Sheet Metal
Workers International Association, AFL–CIO, Local Union
No. 17, as the exclusive collective-bargaining representative
of the sheet metal employees employed by the Respondent
at, or out of, its Charlestown, Massachusetts shop.
(b) Failing and refusing to provide the Union, in a timely
fashion, with all the information which is relevant to the
Union’s responsibility to act as the exclusive collective-bar-
gaining representative of the Respondent’s sheet metal em-
ployees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union forthwith all the information it re-
quested in letters directed to the Respondent on January 22
and April 2, 1990, and any other information requested by
the Union which is relevant to the Union’s statutory duty as
bargaining representative of the Respondent’s sheet metal
employees.
(b) Bargain collectively in good faith with the Union con-
cerning the decision to lay off five sheet metal employees in
December 1989, and the effects of the layoff, and bargain
collectively in good faith with the Union as the exclusive
collective-bargaining representative of all the sheet metal em-
ployees employed by the Respondent at, or out of, its
Charlestown, Massachusetts shop, concerning wages, hours,
and terms and conditions of employment.
(c) Offer to Mark Boyd, Anthony Ciorlone, James Carroll,
Joseph Dillon, and Mark Therien full and immediate rein-
statement to their former or substantially equivalent employ-
ment, without prejudice to their seniority or to other rights
previously enjoyed, and make them whole for any loss of
pay or benefits suffered by them by reason of the illegal ac-
tions found herein, in the manner described above in the
remedy section of this decision.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at the Respondent’s Charlestown, Massachusetts
shop, copies of the attached notice marked ‘‘Appendix.’’8
Copies of the notice, on forms provided by the Regional Di-
rector for Region 6, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately on 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 material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in good faith
with Sheet Metal Workers International Association, AFL–
CIO, Local Union No. 17 as the exclusive collective-bar-
gaining representative of our sheet metal employees.
WE WILL NOT fail or refuse to provide the Union, in a
timely fashion, with all the information which is relevant to
the Union’s responsibility to act as the exclusive collective-
bargaining representative of those employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed to them by Section 7 of the Act.
WE WILL furnish the Union forthwith all of the informa-
tion it requested in its letters to us dated January 22 and
April 2, 1990.
WE WILL bargain collectively in good faith with the Union
concerning the decision to lay off five sheet metal employees
in December 1989, and the effects of the layoff, and WE
WILL bargain collectively in good faith with the Union con-
cerning wages, hours, and terms and conditions of employ-
ment of our sheet metal employees.
WE WILL offer to Mark Boyd, Anthony Ciorlone, James
Carroll, Joseph Dillon, and Mark Therien full and immediate
reinstatement to their former or substantially equivalent em-
ployment, without prejudice to their seniority or to other
rights previously enjoyed, and WE WILL make them whole for
any loss of pay or benefits which they have suffered by rea-
son of the illegal actions found in this case, with interest.
FARINA CORPORATION