Holmes Detective Bureau

National Labor Relations Board - Board Decisions

Jun 23, 1981

256 N.L.R.B. 824 (N.L.R.B. 1981)

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward Z. Holmes Detective Bureau, Inc. and
Allied International Union of Security Guards
and Special Police. Case 2-CA-16730
June 23, 1981
DECISION AND ORDER
On December 18, 1980, Administrative Law
Judge Steven B. Fish issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
We agree with the Administrative Law Judge's
finding that substantial evidence supports the Gen-
eral Counsel's allegations that Respondent refused
to provide, upon the Union's request, "various
items of information and records, all clearly rele-
vant to the Union's performing its function of de-
termining the accuracy of Respondent's compliance
with various aspects of the contract," and that Re-
spondent "did not have any intention of entering
into good faith bargaining for a new contract with
the Union." However, we do not agree with his
further finding that, notwithstanding Respondent's
behavior which violated Section 8(a)(5) and (1) of
the Act, the complaint should be dismissed because
the Union's conduct rose "to the level of sufficient
bad faith, so as to preclude the existence of a situa-
tion in which Respondent's good faith can be
tested."
The Administrative Law Judge based his conclu-
sion that the Union's conduct precluded a finding
of violation by Respondent primarily on the cred-
ited testimony of Respondent President Tavlin that
Union President Cunningham stated several times
that Cunningham would put Respondent out of
business. Although the statements attributed to
Cunningham were intemperate, they did not free
Respondent from its obligations under the collec-
tive-bargaining agreement or under the Act.' For
as long as 2-1/2 years leading up to Cunningham's
first abusive statements, Respondent admittedly dis-
regarded its obligations. Not only did Respondent
fail to make appropriate payments to the Union's
health and welfare fund on behalf of its employees,
but it did not even report the hire of new perma-
nent employees as required by the contract. 2 More-
' In any event, while an employer may, in certain circumstances,
refuse to deal with a particular union representative where the latter has
engaged in violent or other abusive conduct (Fitzsimons Manufacturing
Company, West Branch Tube Division, 251 NLRB 375 (1980)), Respondent
here at no time so limited its refusal.
2 If Respondent was unable to make the payments due to alleged
"cashflow" problems, it could have so stated to the Union, and attempted
256 NLRB No. 102
over, when Cunningham confronted Tavlin with
allegations that Respondent was not fulfilling its
obligations, Tavlin simply responded that he did
not have the money and did not even attempt to
justify his failure to at least report new hires. In
these circumstances, we find that Cunningham's
reply that he would put Respondent out of business
was provoked by Respondent's misconduct, and
therefore is no defense to Respondent's refusal to
bargain. See, for example, Alba-Waldensian, Inc.,
167 NLRB 695, 697 (1967), enfd. 404 F.2d 1370
(4th Cir. 1968).
Talvin's subsequent refusal to respond to the
Union's legitimate requests for the information
about new hires and his unexplained failure to
appear at the arbitration hearing involving Re-
spondent's failure to pay the contractually required
sums further displayed a flagrant disregard of the
Union's representative status. Inasmuch as Re-
spondent's pattern of behavior began before any in-
temperate conduct by Cunningham-and indeed
continually provoked it-it cannot be fairly con-
cluded that Cunningham's behavior made it impos-
sible to test Respondent's good faith.
Rather, Respondent's conduct was deficient
throughout. Not only did Respondent ignore its re-
porting and financial obligations under the contract
and the Union's requests that those obligations be
met, but, following its announcement to the Union
that it did not wish to renew the contract upon the
June 5, 1979, expiration date, it did not respond to
union requests to begin negotiations (first made on
May 17) until June 27, following the Union's filing
of an unfair labor practice charge against Respond-
ent alleging, inter alia, Respondent's failure to bar-
gain for a new contract. And while two negotiat-
ing sessions were held in July, Respondent's posi-
tions at that time included insistence upon elimina-
tion of part-time workers from contract coverage
(although they had been part of the unit for at least
6 years) and total elimination of contributions to
the health and welfare fund. While Respondent's
positions at the July meetings did not, by them-
selves, demonstrate bad faith, that behavior, in the
context of all that came before, was further indica-
tion of bad faith which cannot be attributed to the
Union's behavior.3
to work something out. Instead, it simply ignored its responsibility to
inform the Union that new employees had been hired.
3 Following the issuance of the instant complaint in October 1979,
Tavlin wrote to the Union, requesting a negotiating session on December
5. While the credited testimony revealed that the Union simply read off
its contract proposals, asked Tavlin if he would sign, and, upon getting a
negative response, left, this incident did not exculpate Respondent.
Indeed, there is no evidence that prior to the meeting Tavlin gave any
indication that he was prepared to provide the information necessary for
the Union to enforce the provisions of the expired contract. In light of
Continued
HOLMES DETECTIVE BUREAU 825
Further, any fear on the part of Respondent with
respect to Cunningham's statements that he would
put it out of business would be sheer speculation.
Indeed, the Union's bargaining behavior in the
spring and summer of 1979 did not display such a
motive: There is no indication that its bargaining
proposals were out of line with those made to
other employers in the industry, or that Union
Representative Jaffe's positions at the July negoti-
ating sessions were not set forth in good faith. See
Reisman Bros., Inc., 165 NLRB 390, 392-393
(1967), enfd. 401 F.2d 770 (2d Cir. 1968).
4 Nor can
it be said that Cunningham's behavior evinced a
conflict of interest even remotely similar to that
found in Bausch & Lomb Optical Company, 108
NLRB 1555 (1954). There, the Board found that
the employer was not obligated to bargain with a
union which had set up a business which competed
with that employer. The concern in Bausch &
Lomb was that union financial interest in a compet-
itor could too easily cause the union to gear its bar-
gaining to cripple the competition rather than ad-
vance the interests of the employees. But no such
danger is presented here. Nothing in the record
supports a conclusion that Cunningham or the
Union had any motive to destroy Respondent, or
that Cunningham or the Union were engaged in
any such effort. Compare Knoxville Publishing
Company, 12 NLRB 1209, 1233-34 (1939).
5
this continuing failure of Respondent to meet the simplest requirements
of the law, we will not hold that the Union's response-however
abrupt-was unprovoked. In any event, even if this continuing disregard
of the Act did not provoke the Union's December 5 conduct, Talin's
failure, prior to the meeting, to offer the requested information precludes
a conclusion that he had decided to obey the law or that the Union's
conduct made it impossible to test his good faith.
4Indeed, when Jaffe was confronted by Tavlin on Jul I I with Inter-
nal Revenue Service warrants indicating that Respondent was in difficult
financial straits, he suggested that the Union might be able to put welfare
payments on the "backburner." While Jaffe withdrew this suggestion on
July 18, this withdrawal must be viewed in light of the fact that, as
Tavlin himself admitted, the balance due the IRS had been essentially
constant since 1973.
Nor does the fact that the Union escalated its demands between its
April and May contract proposals indicate bad faith on the part of the
Union. Such a tactic is not at all foreign to hard-fought negotiations. See
Chambers Manufacturing Corporation, 124 NLRB 721, 725 (1959). enfd
278 F.2d 715 (5th Cir. 1960)
s In view of Tavlin's claims of poverty, Cunningham's statements that
he would put Respondent out of business appear to be related to the ef-
forts to collect moneys owed the Union's health and welfare fund. Given
Cunningham's obvious distrust of Tavlin's claims, these "threats" were
not only provoked, but may well have been facetious. In any event. the
fact that union representation of several competing employers may lead
to situations in which enforcement of agreements may result in the
demise of weaker employers is not a basis for refusals to bargain or to
adhere to agreements. The Congress explicitly rejected such potential
conflicts as a basis for denying certification in 1947. See Legislative His-
tory of the Labor Management Relations Act, 1947. 187-188, 300, 550
551 (G.P.O. 1974).
The Administrative Law Judge also found that Tavlin's credited testi-
mony that Cunningham referred to unit employees in racist terms demon-
strated lack of concern for the employees. Viewing the statement in con-
text, however, we do not agree: When Tavlin first asserted that he did
not have the money to make the required health and welfare fund pay-
In sum, the Union's behavior did not free Re-
spondent from its obligation to bargain in good
faith with the duly designated representative of its
employees. Accordingly, we find that Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to provide information to the Union that was
relevant to the Union's performance as the exclu-
sive bargaining representative of its employees, and
that Respondent further violated Section 8(a)(5)
and (1) by failing and refusing to bargain in good
faith for a new contract.
CONCLUSIONS OF LAW
i. Respondent Edward Z. Holmes Detective
Bureau, Inc., is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Allied International Union of Security Guards
and Special Police is, and has been at all times ma-
terial herein, a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to provide information to the
Union that was relevant to the Union's perform-
ance as the exclusive bargaining representative of
its employees, Respondent has violated Section
8(a)(5) and (1) of the Act.
4. By failing and refusing to bargain in good
faith with the Union for a new contract, Respond-
ent has violated Section 8(a)(5) and (1) of the Act.
5. Respondent's violations of Section 8(a)(5) and
(1) of the Act are unfair labor practices affecting
commerce within the meaning of Section 2(6) and
(7) of the Act.
ments. the credited response by Cunningham was "'Who do y ou think
you are talking to. those f-ing jigs you got working for you7"
Cun-
ningham's reply was, in essence, that the employees might believe what
Tavlin was saying, but that he did not Thus. Cunningham, while dsplay-
ing an appalling level of bigotry and a low opinion of the employees. did
not demonstrate lack of concern rather. he was ociferously defending
their economic interest
The Administrative Law Judge concluded that the Uion evidenced
bad faith by being primarily concerned with collecting moneys owed the
health and wealth fund. We do not agree No doubt this was a primar)
concern, bhut this was entirely proper, since without such payments the
Union could not provide welfare coverage for the employees In any
event, contrary to the Administrative L.aw Judge. the record reveals that
the Union did attempt to engage in negotiations for a new contract,
in
attempt which was thwarted by Respondent's bad faith
Finally, Cunningham's apparent fabrication of a section of the contract
submitted to an arbitrator, while undoubtedly disgraceful, does not affect
the outcome here. The fabricated section did not relate to Respondent's
obligations under the contract with which Respondent admittedly failed
to comply Rather, it went to the jurisdiction of the arbitrator Further,
since Respondent failed to participate in the arbitration proceeding and
the arbitrator's decision did not issue until July 17-after most of the un-
lawful behavior of Respondent occurred -the discrepancy between the
contract and the section apparently provided by the Ulnin could not
have had any impact upon that behavior. and thus cannot be deened to
hav- been union conduct making a test of good faith impossible
HOLMES sum DE EC eV UAU'
8ea
i r2i5o fe e
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
Specifically, as we have found that Respondent has
unlawfully failed to provide certain information to
the Union that was relevant to the Union's per-
formance as the exclusive representative of its em-
ployees, we shall order that Respondent furnish,
upon request of the Union, the names of all em-
ployees in the recognized bargaining unit, their ad-
dresses, dates of hire and/or termination, and the
jobsites where they were employed by Respondent
since June 6, 1976. Furthermore, as we have found
that Respondent has unlawfully failed to bargain in
good faith with the Union for a new collective-bar-
gaining agreement, we shall order that Respondent
bargain with the Union in good faith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Edward Z. Holmes Detective Bureau, Inc., New
York, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning
rates of pay, wages, hours, and other terms and
conditions of employment with the Allied Interna-
tional Union of Security Guards and Special Police
as the exclusive representative of the employees in
the following appropriate unit:
All full- and part-time security guards em-
ployed by Respondent, excluding office cleri-
cal employees, non-guards, and supervisors as
defined in the Act.
(b) Refusing to provide to said Union informa-
tion relevant to the Union's performance as the ex-
clusive representative of its employees.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of any right guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Upon request, provide to the aforementioned
Union the names of all unit employees, their ad-
dresses, dates of hire and/or termination, and the
jobsites where they were employed by Respondent
since June 6, 1976.
(b) Upon request, bargain in good faith with said
Union representing the aforementioned unit with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(c) Post at its place of business in New York,
New York, copies of the attached notice marked
"Appendix." Copies of said notice, on forms pro-
vided by the Regional Director for Region 2, after
being duly signed by a representative of Respond-
ent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
6 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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 having found,
after a hearing, that we violated the National
Labor Relations Act, as amended, we notify you
that:
WE WILL NOT refuse to bargain in good
faith with the Allied International Union of
Security Guards and Special Police as the ex-
clusive representative of our employees in the
unit described below:
All full- and part-time security guards em-
ployed by us, excluding office clerical em-
ployees, non-guards, and supervisors as de-
fined in the Act.
WE WILL NOT refuse to provide to said
Union information (including the names of unit
employees, their addresses, dates of hire
and/or termination, and the jobsites where
they were employed since June 6, 1976) rele-
vant to its performance as the exclusive repre-
sentative of the aforementioned employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
HOLMES DETECTIVE BUREAU 827
the exercise of any right guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL, upon request, bargain in good
faith with the aforementioned Union with re-
spect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of em-
ployment, and, if an understanding is reached,
WE WILL embody such understanding in a
signed agreement.
WE WILL, upon request, provide to said
Union information relevant to its performance
as the exclusive representative of the afore-
mentioned employees.
EDWARD Z. HOLMES DETECTIVE
BUREAU, INC.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: Pursuant
to charges and amended charges filed by Allied Interna-
tional Union of Security Guards and Special Police,
herein called the Union or the Charging Party, a com-
plaint and notice of hearing was issued by the Acting
Regional Director for Region 2 against Holmes Detec-
tive Bureau, Inc.,' herein called Respondent, on October
26, 1979.2 The complaint alleges that Respondent violat-
ed Section 8(a)(1) and (5) of the Act by failing and refus-
ing to bargain with the Union, and by failing and refus-
ing to supply the Union with various items, materials,
and information requested by the Union; which informa-
tion is necessary for and relevant to the Union's perform-
ance of its functions as the exclusive collective-bargain-
ing representative of the employees of Respondent.
A hearing was held before me on May 5 and 6, 1980.
Briefs have been filed by the General Counsel and Re-
spondent and have beer. duly considered.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation engaged in the
business of providing security services to customers lo-
cated in the State of New York. During the past year,
Respondent provided services valued in excess of
$50,000 for other enterprises located within the State of
New York, including New York Institute of Technology,
Fifth Avenue Diamond Exchange, Miltex Distributing
Corp., and John Rau Management Corp. Each of said
enterprises is directly engaged in interstate commerce,
meeting a Board standard, exclusive of indirect outflow
or indirect inflow, for the assertion of jurisdiction. Re-
spondent admits, and I find, that it is an employer en-
The complaint was amended at the hearing to reflect the correct
name of Respondent: Edward Z. Holmes Detective Bureau, Inc
2 All dates are in 1979 unless otherwise stated
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is an organization formed with a purpose
of negotiating benefits and working conditions with em-
ployers, on behalf of the employees whom it represents.
Employees participate in the affairs of the organization,
by attending meetings, and in connection with the con-
duct of negotiations with employers. I therefore find that
the Union is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act.
1II. THE AI.LEGED UNFAIR l.ABOR PRACTICES
A. Facts
In June 1973, Respondent voluntarily recognized the
Union and entered into a collective-bargaining agreement
with it, running from June 6, 1973, to June 5, 1976. The
parties entered into a renewal contract running from
June 6, 1976, to June 5, 1979. The unit specified in the
contract is all security employees, excluding office, cleri-
cal, nonguards, and supervisory employees, as defined in
the Act. The recognition clause makes no distinction be-
tween or reference to part- or full-time employees. It is
clear, however, that the contract applies to both full- and
part-time employees. The contract itself contains a refer-
ence in the welfare payment schedule clause (art. XXI)
to different payments for full- and part-time employees,
and a definition of a full-time employee as one who
works a regularly scheduled 24 hours per week or more.
In addition, the evidence reveals that the contract was
applied to both full- and part-time employees.
Accordingly, I find that Respondent has recognized
the Union in a unit consisting of all full- and part-time
security guards, excluding office clerical employees, non-
guards, and supervisors as defined in the Act.
Respondent denies the appropriateness of the above-
described unit and exclusive representative status of the
Union, and asserts that the General Counsel has not met
his burden of establishing these allegations of the com-
plaint.
However, having voluntarily recognized the Union as
the exclusive representative of its employees in a bar-
gaining unit for several years, Respondent cannot now
attack the Union's majority status among its employees
or the appropriateness of the unit.3
The past contracts and the conduct of the parties es-
tablish that historically the above-described unit has been
recognized as an appropriate unit by the parties and the
General Counsel has met his burden of establishing ap-
propriate unit and exclusive representative status by this
evidence. 4
Accordingly, I find that the Union is and has been the
exclusive collective-bargaining representative of Re-
spondent's employees in an appropriate unit.
3 Berbhglia, Inc.. 233 NLRB 1476 1977); Morse She. Inc.. 227 NLRB
391 (1976)
4 Schuck Cornponenr Svstems. Inc. 230 NlRB 838 /1977)
HOLMES DETECTIVE BUREAU
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 1976-79 contract signed by Respondent with the
Union provided for a union-security clause, dues-check-
off clause, and a requirement that Respondent report to
the Union the names, addresses, and social security num-
bers of newly hired employees within 30 days of their
employment. The contract provides for payments to the
Union's health and welfare fund, to be made by Re-
spondent on or before the 5th day of each month for all
full- and part-time employees who have completed their
30-day probationary period.
At some unspecified time after the 1976 contract was
executed, Respondent, as admitted by Milton Tavlin, its
president, began to fail to report new employees to the
Union, and to fail to make welfare contributions for
these employees. Tavlin admitted that as each employee
that the Union had as a member left its employ his or
her name was excised from the list reported to the
Union, and that the name of the employee hired to re-
place that employee was not furnished to the Union, nor
were welfare payments made on said employee's behalf
to the Union. As of March 1979, Respondent employed
30 employees, including 7 or 8 part-time employees. At
that time Respondent was reporting to the Union and
making welfare payments on behalf of eight employees,
which were all employees who had been employed when
the Union originally was recognized by the Employer. 5
On April 15, 1978, pursuant to a grievance filed by the
Union, Herbert Haber, an arbitrator, was designated by
the New York State Mediation Board to hear and decide
whether Respondent violated the contract by its failure
to notify the Union of new-hired employees and the re-
fusal of Respondent to place the employees in the collec-
tive-bargaining unit, to supply the Union with the ad-
dresses of job locations, and to remit dues and initiation
fees and welfare contributions to the Union.
The parties then requested a delay of the arbitration
hearing pending settlement discussions and the arbitrator
agreed not to set a hearing date pending a subsequent re-
quest by either party.
In February 1979, the Union advised the arbitrator
that the matter remained unresolved and requested that a
hearing be scheduled. After several phone conversations
with the parties, Haber sent a letter to the parties dated
February 27, confirming that a hearing was scheduled
for April 10.
Sometime in March, Tavlin received a phone call from
Daniel Cunningham, president of the Union. Cunning-
ham began the conversation by asking Tavlin where his
money was, and added that Cunningham wanted the
money that was allegedly owed by Respondent to the
Union." Tavlin replied that he would take care of it as
soon as he could and that he could not draw a check for
something he did not have. He added that the first thing
that he had to take care of was payroll. Cunningham, ap-
parently skeptical of Tavlin's claim that he did not have
the money to make the payments to the Union, said to
Tavlin, "Who do you think you are talking to, those f-
s The complaint does not allege nor does the General Counsel contend
that Respondent's actions, which still continue, of failing to report new
employees to the Union, or failing to make contractual payments on their
behalf to the Union, constitute independent violations of the Act.
' Referring to the welfare and dues payments.
ing jigs that you got working for you?" Cunningham
then added that he was going to put Respondent out of
business.
Tavlin and Cunningham had four or five similar con-
versations, during the period between March 1979 and
the date of the instant hearing, during which Cunning-
ham on each occasion informed Tavlin that he was going
to put him out of business.
In addition, on the first day of the instant hearing,
May 5, 1980, Cunningham upon confronting Tavlin out-
side the hearing room herein, repeated his threat to put
Tavlin out of business. 7
On March 29, Tavlin sent a letter to the Union, advis-
ing it of Respondent's intention pursuant to the contract
to amend, alter, or modify said agreement.8
The Union replied by letter dated April 3, confirming
receipt of Respondent's letter requesting negotiations,
and set April 11 or 12 at the Union's offices as the date
for meeting. The letter requests that Tavlin confirm
either of these two dates as soon as possible.
The letter also states as follows: "As you realize your
failure to bargain in good faith is considered an unfair
labor practice and will result in legal action being taken
against you." 9
The letter concludes by requesting, again,x° a current
list of employees' names, addresses, social security num-
bers, dates of hire, and/or terminations, and job loca-
tions.
Cunningham thereafter received a letter, dated April 9,
from Peter Curley, Respondent's attorney, requesting
that prior to the commencement of negotiations, that the
Union forward copies of its proposals to him and his
client.
The letter also refers to the fact that Curley would not
be able to attend the arbitration scheduled for April 10,
and that he had informed arbitrator Haber of such una-
vailability.
Curley contacted the arbitrator and obtained a post-
ponement of the arbitration hearing to May 23.
The Union sent a letter, with proposals attached,
signed by Cunningham to Curley, dated April 13. The
letter reads as follows:
' The above findings are based on the undenied testimony of Tavlin,
which I credit. Cunningham, although called as a witness, did not deny
making the above-cited remarks to Tavlin. Initially, he testified that he
attempted unsuccessfully on numerous occasions to reach Tavlin on the
telephone during 1979, but that Tavlin never returned his calls. On cross-
examination he admitted that he had spoken to Tavlin on the phone on
five or six occasions in 1979. However, Cunningham did not testify as to
the substance of these conversations, nor did he deny or attempt to ex-
plain or justify the above described comments that he made to Tavlin.
I The contract provides that the agreement shall be deemed renewed
from year to year, unless either notifies the other by mail at least 60 days
before the expiration date of its desire to amend, alter, or modify said
agreement.
9 The record contains no explanation of what alleged "failure to bar-
gain in good faith" Cunningham was referring to in this letter.
10 Cunningham, prior to this letter being sent, had been informed by
Respondent's employees, that Respondent was employing more than the
eight employees it had been reporting to the Union. Cunningham there-
fore had requested the right to audit Respondent's books to check this
matter out, and had been unsuccessful in arranging such an audit.
HOLMES DETECTIVE BUREAU 829
In response to your letter of April 9th, quite frankly
it has only been brought to my attention that you
are now representing the above company (Holmes
Det. Bureau).
I also see that you are again picking up the lef-
tovers by representing a company with which we
had a great deal of trouble with in the past and that
you, as usual, are using your usual stalling tactics
concerning our usual arbitration procedures.
As requested, I am enclosing a copy of our new
proposed Collective Bargaining Agreement since
you have elected to represent Holmes. Apparently,
what Holmes failed to tell you is that they have,
now and in the past, completely ignored the basic
terms of the Collective Bargaining Agreement and
more importantly, they have been consistently in ar-
rears not only on Welfare Contributions but in re-
mittance of Dues and Initiation Fees. Also, they
have never reported to us the true amount of em-
ployees as the contract specifies.
With respect to Bargaining, I assume their attitude
will be basically the same and that is, to show little
concern for the obligations imposed on them. How-
ever, I can assure you that it is our intentions to
take every action possible against Holmes Detective
Bureau that would protect both the integrity of this
Union and the rights of the employees.
I believe I should receive a response from you
within five (5) days of receipt of this letter which
should be more than sufficient time for you to
review the contract and to set a date for negotia-
tions to commence.
Thank you for your anticipated cooperation.
On May 17, the Union sent the following letter to Re-
spondent, with different proposals attached:
Holmes Detective Bureau
505 Fifth Avenue
New York, New York 10017
Attention: Mr. Milton Tavlin
Re: Contract Renewal
Dear Mr. Tavlin:
You have notified the union of your intention to
renegotiate the contract that is about to expire and
we have called and sent you letters concerning ap-
pointments for the purpose of negotiations. You
have failed to reply with our request. Therefore, we
send you the union's proposals for the new collec-
tive bargaining agreement.
Of course, you realize if you fail to comply this
time, we shall immediately file charges and take
whatever action is necessary to protect those em-
ployees covered under the collective bargaining
agreement.
We also request from you a current list of all em-
ployee's names, addresses, social security numbers,
date of hire and/or termination, location of employ-
ment and present rate of pay. Since you have in-
formed us that you have an attorney representing
you, we have also sent a copy of the proposals to
him.
We also bring to your attention that you are con-
sistently in arrears with respect to dues, initiation
fees and Welfare contributions. We hereby ask that
you confirm one of the below listed dates for the
purposes of an audit of your records so as to deter-
mine what monies are due the union and Welfare
Fund:
TUESDAY, MAY 29TH OR WEDNESDAY,
MAY 30TH at 10:00 a.m.
You can confirm one of the above dates with our
office and we will notify our accountant.
After reciting the Union's demands. the letter con-
cludes by pointing out that Respondent has failed to
comply with provisions of the contract currently in
effect, and adding that Respondent's failure to comply
with the Union's request for a meeting will result in the
proper legal action to be taken.
The proposals of the Union furnished to Respondent
on May 17 differ significantly from the proposals submit-
ted in April. For example, on wages the Union's April
proposals requested a wage increase of 30 cents per hour
for each year of the 3-year contract, to be paid on June 6
of each year. Additionally. the April proposals called for
a raise in the minimum salary to 35 cents per hour great-
er than the Federal or state minimum wage, whichever is
higher, and a minimum hiring rate for armed guards of
$4.50 per hour.
The May proposals of the Union requested raises of 50
cents per hour for employees immediately and a 35-cent-
per-hour increase after 6 months. Further, the minimum
rate requested was 40 cents per hour over the minimum
wage, plus a 25-cent-per-hour increase after 30 days of
employment. With respect to armed guards, the mini-
mum hiring rate of $4.50 was not changed from the
Union's prior proposals, but the Union added a demand
for 75-cent-per-hour increases for armed guards for each
year of the contract.
With respect to the May proposals of the Union, they
also provided for significant differences from the April
proposals in such areas as welfare payments, sick leave,
holidays, and vacations. 12
I I The prior conract hbetwen the parties prosIdel f r no guaranltced
raise III the firl year of Ihat contract but onl I lthal It the Federal or ilte
minimum wage was raised. the minimum fl ages f Rcspoindent', cnliph,
Ces would be increased hy 15 cent, per hour abho'e the Federal or sitale
minimunl sage. he agreement provided for a 1-cent-per-hour nr.cisce
on June 6. 1'177 and 1978, and a minimum hiring rate fr armed guards
of $3 5 per hour
2 Flor example the vgelfare pas ments pros ided for in the April propis-
als Acre 40. 50, anid Sh) per month fir full ime eriployes oxcr I
years, and $20. $25. and $30 fr part-lime emploees I he NMa, prip-oa[l
pro',iled for pa.nietits if 55. $t5. and 575 fr fll-lme nmpl n ec, p l d
$25. $35 ad 45 fiti panrt-time emplo',cc, I lie ra 1 tilt xp ilrcl lon
tractl ere r 2(I, S21. and 522 fir full-tinme emplo c rid $10i . 11. ll d
$12 filr part-time emploee,
HOLMES DET CTIVE BUREAU 29~~~~~~~~~~~~~
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 23, neither Respondent nor its attorney ap-
peared at the arbitration hearing scheduled before Arbi-
trator Haber. The arbitrator waited for an hour and at-
tempted to reach Respondent and its attorney without
success. He therefore conducted the hearing without the
presence of Respondent or its representative. On May 29,
Haber sent a letter to Respondent and Curley, setting
forth that they did not appear at the hearing and that the
hearing was conducted and testimony and evidence was
received. The letter added that Haber intended to issue
an award on or about June 15, but would hold the
matter open to afford Respondent an opportunity to con-
tact him in regard to this matter.
On July 17, Haber issued his award, setting forth the
above facts with respect to Respondent's failure to
appear and adding that Respondent did not contact him
by June 10.
In his award, the arbitrator set forth various provisions
of the contract concerning dues checkoff, welfare fund,
the obligation of Respondent to furnish the Union with
addresses of jobsites and to report newly hired employ-
ees to the Union. These provisions were accurate recita-
tions of the provisions in the contract.
However, the arbitration clause cited in the arbitrator's
decision does significantly differ from the actual arbitra-
tion clause in the contract in existence between the par-
ties.
The contract between the parties provides:
ARTICLE VII
GRIEVANCES AND ARBITRATION
Article 7.1 All complaints, disputes, and griev-
ances arising between the parties to this Agreement,
except as to no-remittance of dues, initiation fees
and Welfare Fund contributions, which may be
sued for directly in a Court of competent jurisdic-
tion, at the option of the Union, involving questions
of interpretation or application of any clause of this
Agreement, or any act or conduct in relation there-
to, directly or indirectly, shall be presented by the
party asserting a grievance to the other party. Both
parties shall thereupon attempt to adjust the dispute,
and if no adjustment can be arrived at within forty-
eight (48) hours, the matter shall be submitted for
arbitration to the New York State Board of
Meditation/Federal Mediation and Conciliation
Service, one of whose staff members shall arbitrate
the same upon the request of either party.
Article 7.2 Where a dispute is submitted for arbi-
tration, such action shall be considered a final and
binding submission by both parties hereto. Thereaf-
ter, should either of the parties fail to attend the
hearing set by the Arbitrator, after due notice there-
of, the Arbitrator shall be empowered to proceed
with the hearing in the absence of either party, and
shall be empowered to render a final decision and
award. The decision of the Arbitrator shall be made
in writing and shall be final and binding upon the
parties hereto. Employee witnesses shall suffer no
loss in pay for appearances at arbitration hearings.
Article 7.3 The cost of such arbitration shall be
borne equally, by the Employer and the Union.
The clause cited by the arbitrator reads as follows:
ARTICLE H--GRIEVANCES AND ARBITRA-
TION
Article 7.1 All complaints, disputes, and griev-
ances arising between the parties to this Agreement,
involving questions of interpretation or application
of any clause of this Agreement, or any act or con-
duct in relation thereto, directly or indirectly, shall
be presented by the party asserting a grievance to
the other party, and if no adjustment can be arrived
at within forty-eight (48) hours, the matter shall be
submitted for arbitration.
Article 7.2 Where a dispute is submitted for arbi-
tration, such action shall be considered a final and
binding submission by both parties hereto. Thereaf-
ter, should either of the parties fail to attend the
hearing set by the Arbitrator, after due notice there-
of, the Arbitrator shall be empowered to render a
final decision and award. The decision of the Arbi-
trator shall be made in writing and shall be final and
binding upon the parties hereto.
Article 7.3 The cost of such arbitration shall be
borne equally, by the Employer and the Union.
Cunningham testified that he gave the arbitrator an
original and a copy of the actual contract in existence
between the parties. I do not credit Cunningham and
find that he intentionally and knowingly submitted to the
arbitrator a contract containing an arbitration clause dif-
ferent from the contract actually in existence between
the parties. I found Cunningham to be a most argumenta-
tive, evasive, and contradictory witness, whose testimo-
ny I found to be on the whole unworthy of belief. In this
regard, initially, he testified that both the proposals that
he sent to the Employer were identical, and only ad-
mitted when confronted with the documents on cross-ex-
amination that these were in fact two different sets of
proposals sent to the Employer. As noted above, on
direct examination, he testified that he called Tavlin on
numerous occasions and that Tavlin never returned his
calls. On cross-examination, however, he admitted that
he had spoken to Tavlin on the phone five or six times.
In addition his testimony as to what Business Agent Jaffe
reported to him about Jaffe's July meetings with Tavlin,
to be discussed below, differed substantially from the
versions of these meetings as testified to by Jaffe.
Moreover, I find it inherently improbable that the arbi-
trator could have obtained the incorrect copy of the con-
tract, other than by virtue of having been given same by
the Union. The difference in the clauses are quite signifi-
cant, in that the actual clause arguably deprives the arbi-
trator of jurisdiction to hear the case. I also rely upon
the Union's failure, after the award issued, to move to
reopen the hearing or to correct the arbitrator in his al-
leged mistake in quoting the arbitration clause, as further
evidence that the Union intentionally substituted the in-
HOLMES DETECTIVE BUREAU 831
correct clause in the document that it submitted to the
arbitrator.
The arbitrator, based on Cunningham's testimony,
found that Respondent failed to provide it with a list of
jobsites, failed to report newly hired employees, has ac-
cordingly been remiss in deducting and remitting dues
and initiation fees of these employees and has likewise
failed to make contributions to the union health and wel-
fare fund.
He found that Respondent had therefore violated var-
ious sections of the contract and issued the following
award:
A WARD
1. The Employer is in violation of the Collective
Bargaining Agreement by its failure and refusal to
notify the Union of new hirings of employees and
through its refusal to place the employees in the
bargaining unit and the Employer is ordered to
commence advising the Union of such hires and to
place these employees in the bargaining unit effec-
tive with the date of this Award.
2. The Employer is in violation of the Collective
Bargaining Agreement by its failure and refusal to
supply the Union with the addresses of job sites and
the Employer is ordered to commence providing
such job site information to the Union effective
with the date of this Award.
3. The Employer is in violation of the Collective
Bargaining Agreement by its failure and refusal to
remit dues, initiation fees and welfare contributions
and the Employer is ordered to commence remit-
ting dues, initiation fees and welfare contributions
on a current and future basis effective with the date
of this Award.
4. The Employer is liable for the initiation fees,
dues and welfare contributions for all employees
covered by this agreement who have been in his
employ during the term of this contract, and shall
make available for audit by the Union those em-
ployment records that are required to ascertain the
amount of money due the Union under the contract
for those employees.
5. The undersigned shall retain jurisdiction over
this matter to determine the amount of fees and ex-
penses incurred by the Union in ascertaining or col-
lecting the payments owing under this Award.
6. Under its contract liability to share equally
with the Union in the costs of an arbitration and
pursuant to the provisions of Section 7513 of the
CPLR, the Employer is hereby ordered to reim-
burse the Union the sum of $400.00 which is one-
half the total cost of the Arbitrator's fees and ex-
penses in the instant matter.
DATED: July 17, 1979
On June 5, the Union sent the following letter to Re-
spondent:
Re: Contract Renewal
Dear Mr. Tavlin:
Since you have repeatedly refused to return my
phone calls placed to you on the following dates:
May 21, 24, 28, 30, June 1, 4, concerning a meeting
for the purposes of negotiations and your refusal to
respond to my letter of May 17th concerning con-
tract renewal proposals, we have no alternative but
to file charges at the NLRB immediately.
We also requested from you an appointment in
which to perform an audit of your records and you
have failed to confirm or comply with the two
dates indicated in my letter of May 17th. As you re-
alize, we have filed for an arbitration and you failed
to appear on the date scheduled for the arbitration.
We will, therefore, request that the Arbitrator's
Award be enforced in a court of law. We have in-
formed your attorney of our intentions and he, too,
has failed to respond to us. We must assume, there-
fore, that you have no intentions of meeting with us
or complying with the law with respect to collec-
tive bargaining.
For the record, we again ask that you send us a list
of all employees, their location of employment and
date of hire and/or termination and also that you
contact us immediately upon receipt of this letter so
that we can set a mutual convenient date for the
purpose of meeting on the negotiations.
Very truly yours,
Daniel Cunningham
International President
On June 7, the Union filed a charge in Case 2-CA-
6502 against Respondent, alleging violations of Section
8(a)(l) and (5) of the Act by failing to bargain with the
Union for a new contract and by failing to comply with
the terms of the present contract and by discriminating
against new employees by failing to pay them union
wages and benefits.
On June 27, Tavlin sent a letter to the Union, request-
ed a negotiation meeting for July 11 at Tavlin's office
On June 29, the Regional Director approved the request
of the Union to withdraw its charges.
On July 11, as scheduled, a meeting was held in Tav-
lin's office. Present were Union Business Representative
Herman Jaffe, and Tavlin on behalf of Respondent. The
Union's May proposals were discussed by the partici-
pants. Tavlin responded by stating that he would not
sign a new contract that included part-time employees.
Tavlin also stated that he could not afford to make any
welfare payments, and added, "there's no sense in even
signing an agreement with the Union because I would
just fall behind again. I would just get into a deeper
hole." Tavlin continued that he wished to reduce the
number of holidays currently in existence for his employ-
ees, from nine to six.
Tavlin also stated that he could not afford any wage
increases, and in discussing why he could not afford any
increases and why he could not make any welfare pay-
ments, informed Jaffe of warrants that had been levied
against him by the Internal Revenue Service for nonpay-
H O L M ES D E T E C T IV E B U R E A U 831~~~~~~~~~~~~~~
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of sales and withholding taxes. Tavlin also showed
Jaffe these warrants. 13
Jaffe, after being shown these warrants, commented to
Tavlin that perhaps the Union could put the welfare pay-
ments "on the back burner" for 2 years and then in the
third year, get together and see if things had im-
proved. 14
On July 18, Tavlin and Jaffe met again at Respond-
ent's premises. Jaffe began the meeting by reporting to
Tavlin that the Union could not agree to putting all the
welfare payments on the "back burner," as had been
mentioned in the prior meeting. Tavlin reiterated the po-
sitions that he had taken at the July 11 meeting, includ-
ing no part-timers in the unit, eliminating all welfare pay-
ments, and no wage increases.
Jaffe testified, in response to a leading question by the
General Counsel, that in view of Tavlin's comments that
he could not afford any raises, he told Tavlin that the
Union's accountant would visit his office in order to
audit his books and verify his claims. I credit Tavlin's
denials, and find that Jaffe made no oral request of him
that the Union's accountant be permitted to audit his
books, or to supply the Union with any records, or infor-
mation.
On July 30, the Union sent the following letter to Re-
spondent:
Mr. Milton Tavlin
Holmes Detective Bureau
505 Fifth Avenue
New York, New York
Dear Mr. Tavlin:
Enclosed you will find a copy of the arbitrator's
bill. You will note that since the arbitrator had
great difficulty in reaching you, the union was
forced to pay the entire amount and the Award will
state that you are to reimburse us for your share.
We hereby demand that you forward to us immedi-
ately upon receipt of this letter the sum of $400
made payable to ALLIED SECURITY HEALTH
AND WELFARE FUND.
We also remind you that we have held two past
meetings with you concerning negotiations for a
new collective bargaining agreement in which nego-
tiations proved fruitless. We now demand that you
meet with us at our office (245 Great Neck Rd.,
Great Neck, N.Y.) on August 6th at 10:00 a.m. for
the purpose of completing whatever negotiations
were started. Your failure to appear will result in
papers being filed against you and additional litiga-
13 Tavlin admitted on cross examination, however, that during the
period March through July that he expanded his business 50 percent by
adding 8-10 new customers, and that he had a similar unpaid balance to
the IRS since 1973.
1 The above is based primarily on Tavlin's version of this meeting,
whom I found to be a more credible and believable witness than Jaffe
Jaffe testified that he went over with Tavlin the Union's April demands,
rather than its May demands, and he did not recall making remarks about
putting the welfare payments on the "back burner." Other than these
areas, Jaffe's version of the meeting was essentially in accord with Tav-
lin's testimony.
tion through whatever agencies or departments nec-
essary.
We also would like to set a date for the purpose of
examination of records pursuant to the Arbitrator's
Award. Your failure to comply will result in our
going to court for enforcement of this award.
On August 3rd our accountant will be at your
office for the purpose of examination of records.
Please have available the following:
1. Cash disbursement book
2. Weekly payroll registers
3. Quarterly earnings summaries
4. List of names, addresses, social security num-
bers, job sites
5. Payroll tax reporting forms (specifically Form
941)
6. General ledger
We ask that you confirm this upon receipt of this
letter; otherwise, our accountant will be there.
This letter is being sent both certified and regular
mail.
Very truly yours,
Daniel Cunningham
International President
Although the letter indicates that the union accountant
would be at Respondent's office on August 3, for the
audit, he did not appear at that time or any other time.
On August 10, the Union sent another and final writ-
ten communication to Respondent, reading as follows:
August 10, 1979
Holmes Detective Bureau
505 Fifth Avenue
New York, N.Y. 10017
Gentlemen:
We have made repeated request of you to comply
with the terms and conditions of the Collective Bar-
gaining Agreement with respect to Dues Payments
& Initiation. This notice will inform you that you
are currently in arrears and we request the follow-
ing:
1. A list of all employees, addresses, dates of
hire or termination, status (full or part time) and
job site, along with the proper contribution on
behalf of those employees.
2. A date to perform and audit as follows:
DATE 8/27/79 DAY Monday OR DATE
8/28/79 DAY Tuesday for covered employees as
stated in the Collective Bargaining Agreement.
Please have available the following records:
(a) Cash Disbursement
book (e) list of names and
addresses,- - -
HOLMES DETECTIVE BUREAU 833
(b) Weekly payroll
registers S.S.#,
location of
employment
(c) Quarterly earnings
summaries of all
employees
(d) General Ledger (f) Payroll tax reporting
forms (Specifically Form
941)
You realize your failure to comply with the Terms
and Agreements of the Collective Bargaining
Agreement will subject you to whatever economical
and legal sanctions available to us by law.
Very truly yours,
Daniel Cunningham
International President
On September 10, the charge in the instant case was
filed and was amended on October 2. The complaint
issued on October 26.
Sometime prior to December 5, Tavlin sent a letter to
the Union requesting an additional negotiation session to
be held on December 5. 5
On December 5, a meeting was held at Respondent's
premises, attended by Tavlin, Cunningham, and Frank
Salvatto, union business representative. Salvatto sat
down, but Cunningham did not. Talvin asked Cunning-
ham three times to sit down, but Cunningham refused.
Salvatto read off rapidly the Union's proposals. After
Salvatto concluded, Cunningham said to Tavlin, "Are
you going to sign a contract on those terms." Cunning-
ham continued, "Well in other words, you don't want to
sign it." Cunningham and Salvatto then turned around
and left.'
There have been no further meetings or other contacts
between the parties with respect to negotiations.
On February 8, 1980, the Union filed an additional
charge against Respondent, in Case 2-CA-17076, alleg-
ing that since on or about October 1, 1979, Respondent
has refused to bargain collectively with the Union. The
Regional Director approved the withdrawal of this
charge on February 20, 1980. Cunningham when asked
why he withdrew these charges, replied, "we had certain
issues pending in arbitration, and we found we could ac-
complish the same end result through the arbitration."
The record does not establish the precise status of the
arbitration award, issued by Arbitrator Haber in July. It
is admitted that Respondent has not complied with any
aspect of the award, including the order to supply cer-
tain information to the Union. It was agreed by the attor-
i' I credit Tavlin's testimony that he initiated this meeting, over Cm-
ningham's testimony that the meeting was arranged as as result of Cunn-
ninghams's phone call. In addition to my general assessment of this find-
ing, I find that Cunningham failed to mention this December meeting in
his direct testimony, and only reluctantly admitted its existence on cross-
examination.
L The above recitation of the events of this meeting is primarily based
on Tavlin's credited version. I reject and do not credit Cunningham's tes-
timony that Tavlin said that he would not negotiate with the Union and
that he could get another year and a half out of it before the Board issues
an Order. As noted above. I have found Cunningham's testimony to be
generally unworthy of belief
neys for the Charging Party and Respondent that a pro-
ceeding to confirm the award was instituted, but they
differed as to whether the award had been confirmed by
any court. Since no probative evidence was adduced to
the contrary, I find that insofar as this record is con-
cerned, the Union's arbitration award has not as yet been
confirmed.
B. Analysis
The General Counsel contends that Respondent's con-
duct indicated that it did not have any intention of enter-
ing into good-faith bargaining for a new contract with
the Union. The record contains substantial evidence in
support of such a contention.
Thus, Respondent, after having unilaterally decided to
apply the prior contract only to employees who were
original members of the Union when recognition was
granted in 1973,' 7 adamantly insisted, in the bargaining
for new contract, on the fact that any new contract
signed must apply only to full-time employees, and that
part-time employees who had previously been part of the
unit would no longer be covered. Such conduct, requir-
ing the Union to cede a portion of its exclusive repre-
sentative status, is nothing but a brazen attack on the
basic tenet which underlays the parties' years of bargain-
ing, and has been held by the Board to be a flagrant at-
tempt to denigrate the Union, and so demonstrably an-
tithetical to the bargaining principle as to constitute a de-
fiant breach of Section 8(a)(5). 8 In addition, Respond-
ent's proposals to eliminate welfare coverage entirely,
and to reduce the number of holidays, along with its
above-described insistence on eliminating part-time em-
ployees from the unit, were predictably unacceptable to
the Union,t 9 as it is well settled that an employer has
not met its statutory obligation by insisting on demands
which do not have the slightest chance of acceptance by
a self-respecting union. 2 0
Moreover, the statement made at negotiations by
Tavlin, that there is no sense in signing an agreement
with the Union, is also highly indicative of Respondent's
lack of good faith and sincere desire to reach agreement
with the collective-bargaining representative of its em-
ployees. 2
However, notwithstanding the above evidence, the
Board has held that:
The test of good faith in bargaining that the Act re-
quires of an employer is not a rigid but a fluctuating
one, and is dependent in part upon how a reason-
able man might be expected to react to the bargain-
ing attitude displayed by those across the table. It
follows that . . . a union's refusal to bargain in
good faith may remove the possibility of negotiation
" Although as noted, the General Counsel has not alleged and I do
not find that such conduct constitutes independent violations of the Act,
I can and do assess such conduct in evaluating the good faith of Re-
spondent at the bargaining table.
ix Romo Paper Products Corp., 220 NLRB 519 (1975)
19 Bartlett-Collins Company. 230 NLRB 144 (1977).
20 N.L. RB v. Reed &d Prince Manufacturing Company, 205 F2d 131.
139 (Ist Cir. 1953), cert. denied 346 U S 887; Romo Paper supra,
21 Berblgha. upra; Schuck. supra.
HOLMES D TECTIVE BUREAU
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thus preclude the existence of a situation in
which the employer's own good faith can be tested.
If it cannot be tested, its absence can hardly be
found. 2 2
In my judgment, the conduct of the Union in the in-
stant case rises to the level of sufficient bad faith, so as to
preclude the existence of a situation in which Respond-
ent's good faith can be tested. I rely on a number of fac-
tors in reaching such a conclusion, but I place principal
emphasis on Cunningham's statements to Tavlin, repeat-
ed on five or six occasions, commencing in March, prior
to any bargaining, and continuing until the date of the
hearing, that the Union intended to put Respondent out
of business. Cunningham's expressed hostility to Re-
spondent and his stated purpose to destroy Respondent
financially made any attempt at good-faith bargaining a
futility. 23
A union must have a single-minded interest of protect-
ing and advancing the interests of employees who have
selected it as a bargaining agent and there must be no ul-
terior purpose. 24 The statements made by Cunningham,
in my view, establish that the Union herein might con-
ceivably be entering bargaining with such an ulterior
purpose (i.e., the driving Respondent out of business).
These remarks of Cunningham "have created a situation
which would drastically change the climate at the bar-
gaining table from one where there would be reasoned
discussion in a background of balanced bargaining rela-
tions upon which good faith bargaining must rest to one
in which, at best, intensified distrust of the Union's mo-
tives would be engendered." 25
The Union's lack of concern for the interests of the
employees, whom it purportedly represents, is further
demonstrated by Cunningham's racially inflammatory
and abusive reference to them as "fucking jigs," in the
course of his discussions with Tavlin.
Moreover, the Union's conduct at the bargaining table
serves to reinforce Cunningham's statements and tends to
show that the Union had little if any real interest in
reaching an agreement with Respondent. In fact the evi-
dence reveals that the Union's primary concern in pursu-
ing bargaining with Respondent was to collect the back
welfare and dues payments, which Respondent owed it
under the expired contract. Thus, the primary emphasis
of most of the letters sent by the Union to Respondent
dealt with the Union's efforts to collect this money due
and to arrange for an audit of Respondent's books and
records for this purpose. In fact, the last letter sent by
the Union to Respondent, dated August 10, made no ref-
erence to negotiations or to an attempt to set up a new
meeting, but merely set forth an additional request for an
audit. There is no evidence of any subsequent requests
by the Union for negotiations, and in fact the only other
meeting that occurred, on December 5, came at the
22 Times Publishing Company. Evening Independent. Inc., News Printing,
Inc., 72 NLRB 676, 683 (1947).
23 N.L.R.B. v Kentucky Utilities Company, Inc., 182 F. 2d 810 (6th Cir.
1950), cited with approval by the Board in Deeco, Inc., 127 NLRB 666
(1960); Signal Manufacturing Co., 150 NLRB 1162 (1965).
24 Bausch & Lomb Optical Company, 108 NLRB 1555 (1954).
25 Bausch & Lomb., supra at 1561. See also Harlem River Consumers
Cooperative. Inc., 191 NLRB 314 (1971).
behest of Respondent. 2 6 At this meeting, Cunningham
refused to even sit down, had the Union's demands read
off rapidly by Salvatto, and after Tavlin stated that he
would not sign the Union's proposed agreement, the
union officials immediately turned and walked out with-
out making any effort to engage in meaningful bargain-
ing. This conduct of the Union shows scant interest in
reaching an agreement, and if anything, shows the Union
exhibiting a take it or leave it attitude, by insisting on an
agreement only on its own terms. Such conduct is indic-
ative of bad faith on the part of the Union, which has
been held to be sufficient to preclude a test of Respond-
ent's good faith. 2 7
I also find that the Union, by substantially escalating
its demands, in its May proposals from its April propos-
als, tended to prolong the negotiations and is a further
indication of the Union's bad faith. 28
Finally, I also rely on the Union's actions at the arbi-
tration proceeding. I find that the Union's submission to
the arbitrator of an arbitration clause which is signifi-
cantly different from the clause included in the contract
between the parties is further evidence of the Union's
bad faith in its dealings with Respondent.2 9
Accordingly based on the above-cited factors, I con-
clude that the Union's conduct herein has removed the
possibility of negotiation and precluded the existence of a
26 I note in this connection that the Union filed an additional charge
against Respondent on February 8, 1980, alleging a refusal to bargain
with the Union. Cunningham testified that he withdrew the charge in
order to pursue his claims through the arbitration process. This further
supports my conlclusion that the Union's main interest in its dealings with
Respondent was to collect the back dues and welfare payments allegedly
due from Respondent and that it had little if any interest in obtaining a
contract with Respondent.
27 Continenrtal Niut C
o
mpany, 195 NLRB 841 (1972); Roadhome Con-
struction Corp., 170 NLRB 668 (1968); Otto Klein. Edna Klein, Stephen
Collins, Louise Chancy Margaret Beaudoin and Robert Gilfallen. as Trust-
ee. a Co-Partnership, d/b/a Artiste Permanent Wave Co, 172 NLRB 1922
(1968)
8 .4rtiste Permanent Wave. supra. I note in this regard particularly the
Union's welfare proposals Respondent herein had consistently been
behind in its welfare payments and had claimed to the Union that it could
not afford to make such payments promptly. Yet the Union made an
original demand of an increase of over 100 percent of the amounts then
being paid (40, 50, and $60 per month from $20, $21, and $22 per
month for each year), and then a month later escalated its demands
nearly another 100 percent to 55, $65, and $75 per month. Although it is
true that the Union was only making demands, and that it could and
probably would come down from these figures during negotiations, this
sharp escalation of the Union's demands in this critical area to Respond-
ent, it seems to me, did not demonstrate to Respondent, on the part of
the Union, a sincere desire to reach agreement.
29 It is true, as pointed out by counsel for the Charging Party, that the
contract in existence between the parties can be read as giving the Union
the option of proceeding to arbitration on this type of dispute. Thus, it
may very well be that the arbitrator, even if he would have had the
actual contract in front of him, would have asserted jurisdiction over the
matter and issued his decision as he did. However, it is my belief that the
clause is sufficiently ambiguous, that I am persuaded as noted above, that
the Union intentionally submitted an incorrect clause, so as to eliminate
consideration by the arbitrator of a possible crucial issue of jurisdiction to
the Union's bargaining activities, does in my judgment bear on the
Union's good faith in its overall dealings with Respondent, and can be
considered in evaluating whether the Union's conduct precluded a testing
of Respondent's good faith.
HOLMES DETECTIVE BUREAU 835
situation in which Respondent's own good faith can be
tested. 3 0
The complaint also alleges that Respondent has violat-
ed Section 8(a)(l) and (5) of the Act by refusing to pro-
vide information to the Union, which information is nec-
essary and relevant to the Union's performance as the ex-
clusive bargaining representative of its employees. The
evidence establishes that the Union sent numerous letters
to Respondent requesting various items of information
and records, all clearly relevant to the Union's perform-
ing its function of determining the accuracy of Respond-
ent's compliance with various aspects of the contract. a
Although the evidence does not esbablish that Re-
spondent ever made an outright refusal to supply this in-
formation, its failure to respond to the letters is sufficient
to establish a refusal to supply the information request-
ed.3 2
However, I am of the opinion that the principles of
Times Publishing, supra, are equally applicable to this vio-
lation as well, and that the Union's conduct as described
above has also precluded a testing of Respondent's fail-
ure to supply the information requested by the Union. In
this connection, I note particularly that the threats to
drive Respondent out of business made by Cunningham
to Tavlin, were made in the course of discussions they
were having pertaining to Respondent's alleged failure to
comply with its contractual obligations, which motivated
the requests for information made by the Union.33 A
union that threatens to drive an employer out of business
should not be permitted access to an employer's custom-
er lists or payroll registers, as it is not conducive to col-
lective bargaining, to impose upon Respondent the diffi-
cult burden of disentangling the Union's motives. Bausch
& Lomb, supra.
Although Bausch & Lomb applied the rationale of
Times Publishing, supra, to a situation where the Union
was engaged in a competing business with the Employer,
I believe that the principles expressed therein are appli-
cable to the case at bar. In fact, the instant case presents
an even stronger situation for the application of the rea-
soning expressed in Bausch & Lomb. Thus in Bausch &
Lomb, the Board noted that if a union should make exor-
bitant demands upon an employer for the purpose of
driving an employer out of business so that a competitor
would be benefited, it would constitute bad-faith bargain-
ing. The Board without any evidence that the union in
Bausch & Lomb would or did make such exorbitant de-
mands, or made any statements or engaged in any con-
duct indicating a desire to drive the employer out of
business, nevertheless disqualified the union from bar-
gaining with the employer, because of the mere possibil-
30 Times Publishing, upra, Continental ,.ut. supra, Roadhome Construc-
tion, supra; Ariste Permanent Wave. supra c Kentucky Utilittes. supra.
Bausch & Lomb, supra.
at Ellsworth Sheet Metal. Inc., 224 NLRB 1506 (1976); Murra Bagda-
sarian d/b/a Michael Rossi Carpet Co., 208 NLRB 748 (1974)
32 Ellsworth. supra It is also noted in this regard that Tavlin admitted
in his affidavit that he has not complied with the Union's request fir an
audit.
a3 In addition the tinion's conduct as noted above, of suhmillilg an
incorrect contract in the arbitration which dealt directly slth the matters
set forth in the request for information, is particularly relsant Io eslab-
lishing the Union's lack of fair dealing in conlnectioin with the informationl
requests of the Union
ity of such conduct in the future by the union by virtue
of its ownership in a competing business. In the instant
situation, the Union has in fact made statements on five
or six occasions that it intends to drive Respondent out
of business, thereby demonstrating in my judgment, more
persuasively than the union in Bausch & Lomb, the ab-
sence of fair dealing with Respondent, sufficient to pre-
clude a testing of Respondent's obligation to supply in-
formation to the Union, as well as its obligation to bar-
gain in good faith with the Union.
The General Counsel also alleges in his brief, although
not specifically alleged in the complaint, that Respondent
has violated Section 8(a)(1) and (5) by refusing to permit
the Union to audit its books, in order to substantiate its
claim that it could not afford the union proposals.3 4
Without deciding whether the complaint is broad
enough to encompass such a finding, or whether this
issue was fully litigated, I find the allegation to be clear-
ly without merit. I have found, above, that Jaffe made
no oral request to Tavlin to produce his books in order
to substantiate his claim of inability to afford the Union's
demands. The record contains no other evidence of any
demand by the Union to compel Respondent to produce
his books to support its claims that it could not afford
the Union's proposals. The General Counsel's assertion
that the Union's letters and requests to audit Respondent
were following up Jaffe's oral demand for an audit, in re-
sponse to such a claim by Tavlin, is totally unsupported
by the record. The letters make no reference to any oral
demand of Jaffe, nor do they refer to any claim of Re-
spondent of inability to afford the Union's proposals. It is
clear that the Union's letters and its requests for an audit
of Respondent's books were solely in connection with
the Union's attempts to collect the money allegedly
owed them by Respondent under the collective bargain-
ing agreement, and in connection with the enforcement
of the arbitrator's award ordering Respondent to make
such payments.
In any event, even if it were to be found that Re-
spondent did refuse the Union's request for an audit in
part made by the Union in order to substantiate Re-
spondent's claims of inability to afford the union de-
mands, I would find for the reasons set forth above, that
the Union's conduct has precluded a testing of Respond-
ent's obligations in this regard as well.
Respondent alleges that the entire complaint should be
dismissed under the principles of Spielberg Manufacturing
Company, 112 NLRB 1080 (1955). Clearly the only
aspect of the complaint, potentially cognizable under
Spielberg, is the refusal-to-supply-information allegation.
However, a review of the arbitration proceedings re-
veals that the award touched only tangentially upon Re-
spondent's obligation to furnish information to the
Union. Thus, in lieu of resolving the substantive issue of
Respondent's duty to furnish information, the arbitrator
treated the Union's request as a matter of compliance
with the terms of the award. This award does not re-
solve the unfair labor practice issues which the Board is
called upon to decide, and the award is therefore not
:I . I. R. . lr tr ;.aitulliturrng (CI , 51 S 149 ( Iq561
HOLMES D TECTIVE BUREAU
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
controlling herein.3 5 I therefore do not believe that de-
ferral to the award under Spielberg is warranted, as urged
by Respondent. 3 6
However, as noted above, I have found that the con-
duct engaged in by the Union constituted sufficient evi-
dence of bad-faith dealing with Respondent, so as to pre-
clude the testing of Respondent's obligation to bargain in
good faith with the Union, including its obligation to
supply information to the Union. Accordingly, I find
that, therefore, Respondent has not violated Section
8(a)(1) and (5) of the Act based on the evidence of
record herein, and I shall recommend dismissal of the
complaint in its entirety.
35 The Kroger Company, 226 NLRB 512 (1976).
36 But cf. Malrite of Wisconsin, Inc., 198 NLRB 241 (1972); Southwest-
ern Bell Telephone Company, 212 NLRB 396 (1974).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times material herein, the Union has been and
is the exclusive representative for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours
of employment of the employees of Respondent in the
following appropriate bargaining unit:
All full-time and part-time security employees em-
ployed by Respondent, exclusive of office clerical
employees, non-guards and supervisors as defined in
the Act.
4. Respondent has not violated the Act as alleged.
[Recommended Order for dismissal omitted from pub-
lication.]