I. Bahcall Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1988

287 N.L.R.B. 1257 (N.L.R.B. 1988)

I BAHCALL INDUSTRIES 1257
I. Bahcall Steel & Pipe , a Division of I. Bahcall In-
dustries , Inc. and Drivers, Warehouse and
Dairy Employees Union , No. 75, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America. Case 30-CA-8398
25 February 1988
DECISION AND ORDER
successors , and assigns , shall take the action set
forth in the Order.
Paul Bosanac, Esq. and Steven J. Sweet, Esq, for the Gen-
eral Counsel
Julian D. Schreiber, Esq and Thomas R. Palmer, Esq, of
Chicago, Illinois, for the Respondent.
David Leo Uelman, Esq., of Milwaukee, Wisconsin, for
the Charging Party.
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On 27 November 1985 Administrative Law
Judge Peter E. Donnelly issued the attached deci-
sion .' The General Counsel filed exceptions and a
supporting brief; the Charging Party filed excep-
tions and supporting brief; and the Respondent
filed cross-exceptions, a supporting brief, and a
brief in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings,2 and
conclusions3 and to adopt the recommended
Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , I. Bahcall
Steel & Pipe, a Division of I. Bahcall Industries,
Inc., Green Bay, Wisconsin , its officers , agents,
i On 6 December the judge issued an Erratum
2 The General Counsel , Charging Party , and Respondent have except-
ed to some of the judge 's credibility findings The Board ' s established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect Standard Dry Wall Products, 91 NLRB
544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully exam-
ined the record and find no basis for reversing the findings
3 We agree that Joseph Delveaux was not a supervisor within the
meaning of Sec 2( 11) For the following reasons , we find that Delveaux
was not an agent of the Respondent and therefore any allegedly coercive
statement made by him is not attributable to the Respondent Delveaux's
authority and responsibilities were clearly circumscribed by the scope of
the work center study he was conducting He had no responsibility for
the assignment or direction of work Any authority he had to direct an
employee was limited to suggesting that the employee perform a function
in another manner to test its efficiency Delveaux had no authority to
move an employee to another area Under these circumstances , we find
that Delveaux was not an agent of the Respondent for purposes of job
assignment or direction Therefore, his alleged remarks are not attributa-
ble to the Respondent Abbey Island Park Manor, 267 NLRB 163 (1983)
4 The General Counsel excepts to the judge 's recommended Order to
the extent that it does not include a visitatorial clause authorizing the
Board, for compliance purposes , to obtain discovery from the Respond-
ent under the Federal Rules of Civil Prodedure under the supervision of
the United States court of appeals enforcing this Order Under the cir-
cumstances of this case , we find it unnecessary to include such a clause
Accordingly , we deny the General Counsel's request Cherokee Marine
Terminal, 287 NLRB 1080 (1988)
DECISION
STATEMENT OF THE CASE
PETER E DONNELLY, Administrative Law Judge. The
charge was filed on 27 June 19841 by Drivers, Ware-
house and Dairy Employees Union, Local No 75, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union or Charging Party). A complaint thereon issued
on 8 August and thereafter an amended complaint on 12
February 1985 alleging that I Bahcall Steel & Pipe, a
Division of I Bahcall Industries, Inc. (Employer or Re-
spondent) violated Section 8(a)(1) of,the Act by threat-
ening employees. Also that it violated Section 8(a)(5) of
the Act by making and adhering to predictably unaccept-
able contract proposals and by implementing its last con-
tract offer without a valid impasse being reached. The
complaint further alleges that the Respondent 's unfair
labor practices caused and prolonged the strike and that
the strikers were unlawfully denied reinstatement on 12
July after an unconditional offer to return to work had
been made by the Union. Answers thereto were timely
filed . Pursuant to notice a hearing was held before me on
1-4 and 29-30 April and 1 May 1985 Briefs have been
timely filed by Respondent , the General Counsel, and
Charging Party,2 which have been considered.3
FINDINGS OF FACT
1. THE EMPLOYER
The Employer is a Wisconsin corporation with an
office and place of business in Green Bay, Wisconsin,
where it is engaged in the wholesale sale and distribution
of steel During the past calendar year, Respondent sold
and shipped products valued in excess of $50,000 from its
i All dates refer to 1984 unless otherwise indicated
2 After the deadline for filing briefs had expired on 12 June, the
Charging Party submitted on 13 June three replacements pages for pp 12
and 13 of its previously filed brief, " necessary to correct factual errors
that inadvertently appeared in the brief" However , the replacement
pages contain new matter not appearing in the original brief and this un-
timely submission has not been considered
3 On 17 June Respondent filed a "Motion to File Memorandum In-
stanter and Memorandum to Correct Erroneous Statements in the Briefs
Filed by the General Counsel and the Union " in order to "correct erro-
neous statements in the briefs filed by the General Counsel and the
Union" On 18 June the General Counsel filed a motion to strike Re-
spondent 's motion in that the Respondent 's motion is essentially a reply
brief to the administrative law judge , for which the Board ' s Rules and
Regulations did not provide I agree Respondent's motion is denied and
the material contained therein has not been considered No opposition
thereto having been filed, Respondent's motion to correct transcript is
granted
287 NLRB No. 139
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Green Bay , Wisconsin facility directly to customers lo-
cated outside the State of Wisconsin . The complaint al-
leges, the answer admits, and I find that the Employer is
an employer in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. The 8(a)(5) refusal-to-bargain allegations
Respondent is a wholesaler of steel products, maintain-
ing a large steel inventory and warehouse in Green Bay,
Wisconsin, from which it supplies its customers. In addi-
tion to the Green Bay facility, Respondent operates
warehouses in Milwaukee, Minneapolis, and Chicago.
Green Bay is the largest facility with some 32 warehou-
semen and drivers in a unit represented by the Union.
Milwaukee's 8 drivers and 15 warehousemen are repre-
sented by Teamsters Local 200. The Minneapolis unit
consists of three truckdrivers represented by Teamsters
Local 544. The Chicago facility has only one employee.
Respondent's relationship with the Union began in
1975 with the execution of a 3-year contract. Successive
contracts were executed in 1978 and 1981.
Beginning in early 1982, Respondent's business went
into a decline that resulted in substantial losses for the
year. According to Fred Graves, Respondent's vice
president for operations, this decline was attributable to
an over supply of foreign steel which undermined do-
mestic competition, forcing down the price of domestic
steel , thereby contributing to Respondent's losses. In
1982, in an effort to improve its financial condition, Re-
spondent instituted a wage freeze for nonunion employ-
ees and negotiated as a part of a new contract with
Local 200, a 6-month wage freeze, without any commit-
ment to a raise thereafter, eliminated a clothing allow-
ance provided for in the prior contract, and negotiated a
"cap" on Respondent's hourly health and welfare contri-
bution at 80 cents per hour per employee, effective
March 1983 when the premiums were scheduled to in-
crease. In addition, Respondent imposed the 80-cent
hourly health and welfare contribution cap on all non-
union employees. It also divested itself of its nonprofit-
able rubber goods business in 1982, and its industrial
supply and scrap business in 1983.
In June 1982, as a part of the cost-reduction effort,
Graves contacted the Union with a request to forgo for
6 months a contractual 70-cent-per-hour wage increase
scheduled for 1 July 1982. Graves went to the union hall
to explain to the union employees the Respondent's need
for the requested relief. However, the request was reject-
ed and the wage raise was instituted.
In May 1983, still suffering financial losses, Respond-
ent again sought contractual relief from the Union, this
time in the form of forgoing the wage increase set for 1
July 1983; accepting an 80-cent health and welfare cap;
eliminating dental coverage, and forgoing an additional
holiday provided for in the contract This time Al Ziven,
one of Respondent's owners, made the pitch, and the em-
ployees at first voted to accept the reduction but subse-
quently reconsidered and rejected it. Respondent ad-
hered to the terms of the contract
On 31 August 1983 Respondent obtained a $10 million
line of credit type loan from Citi-Corp Industrial Credit,
Inc Some $7.7 million of this was used to pay existing
creditors and to redeem all the outstanding stock ($3.74
million). All the stock (30 shares) was thereafter reissued
to Lynn Ziven, daughter-in-law of Allen Ziven, presi-
dent of Respondent. The remaining $3.3 million on the
line of credit was used to borrow for inventory and
other purposes. At the time of the hearing, only some
$300,000 remained available on the line of credit.
In early April 1984 Graves began to formulate negoti-
ating objectives looking to the expiration of the existing
contract on 1 July. To this end, he met with owner-
brothers Al and Bernie Ziven and subsequently with Re-
spondent's attorney Larry Erlich. In view of the losses
being sustained by the Respondent and the failures noted
above to obtain financial relief from the Union, Graves
felt it was necessary to secure some substantial financial
relief as part of the contract being negotiated. These bar-
gaining objectives included a wage reduction, ostensibly
to reflect a wage scale more in conformity with local
rates. In the interests of more effective assignment,
Graves sought to eliminate the practice of job rotation,
under which employees rotated jobs every 30 days
Graves also sought reductions in fringe benefits and cer-
tain language changes for the purpose of clarification.
Based on these objectives, Respondent's attorneys
drafted a completely new contract proposal, substantially
different in form and content from the existing agree-
ment. After approval by Graves, it was submitted to the
Union at the first bargaining session on 16 May. At the
16 May meeting, the Union also made a written proposal
to the Respondent providing for various improvements
in the existing contract
During the 16 May meeting, the Union's spokesman,
President Fred Gegare, questioned Erlich, Respondent's
attorney and principal negotiator, about the need for pro-
posing such drastic and substantial changes to the cur-
rent agreement and Erlich agreed to submit a letter to
the Union setting out the reasons for each of the pro-
posed changes. By letter dated 21 May from Erlich to
Gegare, Respondent set out the rationale for each of the
changes proposed on 16 May (Jt. Exh. 5).
At the next meeting on 24 May, the parties engaged in
a point-by-point review of the Respondent's proposed
changes, and the bases for them as they appeared in Er-
lich's 21 May letter Agreements were reached on sever-
al contract items, specifically as to union activities, in-
spection privileges, leave of absence, loss or damage,
nondiscrimination, supervisory employees, separability
clause, and a zipper clause. Essentially, Respondent
agreed to retain these items as they appeared in the cur-
rent contract, except that the Union agreed to minor lan-
guage changes in the items dealing with inspection privi-
I BAHCALL INDUSTRIES
leges, loss or damage, nondiscrimination, and the separa-
bility clause.
At the next session on 7 June, Respondent submitted a
revised contract proposal reflecting the agreed-on items
and including for the first time a wage proposal and then
modified this wage proposal to increase the range of
hourly rates within the six payroll classifications to $5 65
at the lower end and $7.50 at the top. The Union, for the
first time, made an oral wage and length-of-agreement
proposal providing for a 2-year contract with annual 75-
cent-per-hour raises. The Union also proposed dropping
from article 27 "Holidays" of its written proposal of 16
May, those items proposing an additional Fourth of July
holiday, and retroactive holiday pay for probationary
employees As to article 28, "Vacations," the Union
withdrew its proposal for 5 weeks' vacation after 20
years, and as to article 29, "Health and Welfare," the
Union lowered its proposal for continued payment of
health and welfare insurance premiums after layoff from
1 year to 3 months. The parties also reached agreement
on eight more contract items Those items were "Intro-
ductory Paragraphs," "Scope of Agreement," "Recogni-
tion," "Purchase of Equipment," "Stewards," "Griev-
ances," "Arbitration," and "Funeral leave " In substance,
except for some minor modifications, the Respondent
agreed to retain these provisions as they appeared in the
existing contract.
At the next negotiating session on 19 June, Respondent
submitted another revised contract proposal incorporat-
ing all items previously agreed to. A review and discus-
sion of the items still in dispute produced settlement on
three more items, "Union Security," "Unauthorized Ac-
tivity," and "Checkoff." Once again these agreements re-
flected a retention of the existing contract as to these
items
A brief negotiating session was held on 25 June, devot-
ed mainly to review of the outstanding issues. No agree-
ments were concluded at this session, however, Erlich
advised the Union that Respondent would present its
final proposal the following day, 26 June.
At the 26 June session Respondent once again submit-
ted a contract proposal in the form of a complete docu-
ment containing all the items previously agreed on Re-
garding several other items, it acceded to the Union's de-
mands that those items be retained as in the existing con-
tract. The Union dropped its proposal for a 2-year con-
tract and agreed to a 3-year contract as proposed by Re-
spondent. Those items were: "Management Rights,"
"Protection of Rights," "Strikes and Lock-outs," "Proba-
tionary Employees," "Military Service," and "Discharge
and Term of Agreement" After a caucus, the Union
proposed various modifications in its own outstanding
proposal, including a proposal for a 1-year wage freeze,
with a 50-cent increase after the end of the following 2
years The Union modified some demands and dropped
others, so that after the 26 June session the basic items
still in dispute dealt with "Maintenance of Standards,"
"Seniority," "Job Posting," "Sick Leave," "Hours of
Work and Work Week," "Holidays," "Vacations,"
"Health and Welfare," "Pension," "Uniforms," "Meals
and Lodging," "Jury Pay," and "Wage Schedule." There
was no further movement by either party on 26 June
1259
with the Respondent taking a position that it would
adhere to its final offer
A union meeting was held on 30 June for the union
members to consider and vote on Respondent's proposal.
Gegare recommended against acceptance The items in
issue were reviewed No vote was taken on 30 June in
order to give the memebers more time to consider the
proposal. On 1 July, following Gegare's recommenda-
tion, the membership voted both to reject the Respond-
ent's final offer and to strike beginning that evening at
the start of the third shift at 11 p in Gegare telephoned
Graves and told him the results On 1 July the strike
began and the Union began to picket Respondent's prem-
ises with picket signs reading, inter alia, "Unfair Labor
Practice Strike." Also on 1 July Respondent implement-
ed the provisions of its 26 June final offer, and thereafter
began to hire permanent replacements for the striking
employees, continuing to operate, and eventually reach-
ing a complement of some 32 employees as of the date of
the hearing.
On 9 July Gegare sent a letter to Respondent offering
to return to work This letter reads
Please be advised that the membership of Team-
sters Local No 75 hereby offers, unconditionally, to
return to work immediately upon the implementa-
tion by the company of the wages, working condi-
tions, and other terms of employment that were in
effect immediately prior to the commencement of
bad faith bargaining by the company.
Local No. 75 recognizes that reinstituting those
wages, hours and other terms of employment that
existed prior to the commencement of bad faith bar-
gaining would still be subject to change through
lawful good faith bargaining.
We are now, and will continue to remain, avail-
able for the purpose of good faith bargaining We
would hope that the employer would immediately
return to the bargaining table and commence good
faith bargaining. We are also hopeful that you
would immediately remedy the effects of your prior
bad faith bargaining at this early date, so as to avoid
further economic hardship for itself and for the
membership of Local No 75, which is occurring as
a result of the company's bad faith bargaining
Please call or write to advise me of your position
on our unconditional offer within 24 hours of the
receipt of this letter
A copy of this letter is being sent to the attention
of George Squillocate of the National Labor Rela-
tions Board-Region 30
By letter dated 12 July, Graves responded:
Thank you for your letter of July 9, 1984.
We must first point out that your contention that
I Bahcall Steel & Pipe has engaged in bad faith
bargaining is entirely incorrect both in fact and in
law We have always bargained in good faith and
are prepared to continue to do so
The remainder of your letter of July 9 is some-
what ambiguous. As you know, from our last bar-
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining session , the Company advised you that in
view of the bargaining impasse on various matters
including wages , the Company 's final offer would
be unilaterally instituted upon the expiration of the
collective bargaining agreement at midnight, June
30, 1984 . This did in fact occur. The Union rejected
this offer during the evening of July 1. When the
strike commenced at approximately 1:30 p m on
July 1, 1984 , the then effective terms and conditions
of employment were contained in the Company's
final offer as made to you during the collective bar-
gaining session held on June 26, 1984 . Thus, if the
offer made in your letter of July 9 is to uncondition-
ally return to work under those terms and condi-
tions, we will be most pleased to discuss the orderly
return of those unconditional offerees who have not
been permanently replaced If, on the other hand,
the offer contained in your letter of July 9 is merely
an offer to return to work under the terms and con-
ditions of the expired collective bargaining agree-
ment , i e , a reassertion of your final offer made
during the bargaining session of June 26 , we must
advise you that that offer is conditional and unac-
ceptable
We await your clarification of this ambiguity.
2 The 8 (a)(1) threats to employees
a Wayne Babiash (foreman)4
Robert Hussin , a warehouseman and part-time truck-
driver , testified that on 25 June Babiash spoke to him
when he was in the main office checking the paperwork
for a run to Appleton. Babiash was not Hussin 's supervi-
sor, however , in conversation with Hussin , Babtash said
that he would not blame Hussin if he went on strike and
that Respondent was out to hang employees and asked
Hussin if he was looking for another job.
Larry Engles , a warehouseman , testified that in mid-
June Babiash , in a conversation in the warehouse, told
him that if he were an employee he would take the Re-
spondent 's offer, even if it was not good , and then look
for another job. Further , if they went on strike, Re-
spondent would make it hard on them when they came
back and that Babiash questioned whether they would
come back to work because the chances are that their
jobs would already be filled.
Mark Kerrigan , a driver, and not supervised by Ba-
biash , testified that on 28 June in a conversation with Ba-
biash at the drivers ' desk he told Kerrigan that if the em-
ployees were truly smart they would accept the Re-
spondent 's offer and look for another job. Kerrigan also
testified that Babiash told him in another conversation,
shortly before the one described above, that if Kerrigan
thought Respondent was hard on him now he should
wait until he comes back from the strike.
Warehouse employees Thomas LaPlante and Allen
Reedy testified to a conversation with Babiash on 29
June when Babiash told them that if it was him, he
would accept Respondent 's contract offer and look for
another job . Further that even if they went on strike, the
Company could reduce their wages and could make it
hard on them.
Babiash denied having made any of the above state-
ments attributed to him, however, particularly in view of
the generally corroborative testimony of the General
Counsel 's witnesses , I conclude that the statements were
made
b. Robert Vandenheuval (foreman)
Hussin testified that on what he believes was 28 June,
he was in the office to check on some paperwork for a
run, and was discussing contract negotiations with Mike
Vandenberg , an office employee Vandenheuval joined
the conversation and stated that the Company was going
to make it rough on the employees however they could.
Daniel Amenson , a warehouseman, testified that on 20
or 21 June, on the pull floor , Vandenheuval compliment-
ed his attitude and his work and also told him that if the
employees went on strike, Respondent would make it
rough on them when they returned to work
Vandenheuval denied having made the statements at-
tributed to him However , having carefully reviewed the
transcript , I am satisfied that Vandenheuval did make the
statements attributed to him by Hussin and Amenson and
I credit their accounts.-'
c. Randy Seibert (foreman)
Hugh Rusch , a warehouseman , testified that on 29
June at the warehouse he and Thomas Frisque, another
warehouseman , were discussing the possibility of a strike.
Seibert joined them and observed that when they re-
turned to work after the strike , Respondent would make
it rough on them. Frisque asked him how much rougher
Respondent could make it, and Seibert said that Re-
spondent would figure out a way.
Daniel Del Marcelle and William Schoenborn testified
to separate conversations in June when Seibert told them
that if the employees went on strike, Respondent would
probably make it hard on them if they ever got back to
work.
Seibert denied having make the statements attributed
to him, but, particularly in view of the inherently cor-
roborative nature of the General Counsel 's witnesses, I
credit these employees.
d Joseph Delveaux
Delveaux, a recent college graduate , was one of three
employees hired in February 1984 to conduct job studies
at the warehouse . He was paid $ 5 per hour, while the
warehouseman rate at the time was $9.65. He had no au-
thority to hire, fire , or discipline employees . He could
not grant or recommend wage increases . He had no au-
thority to assign or direct the work of employees except
that as a part of his job studies, he could suggest that a
s Although Hussin may have been mistaken about the precise date of
" Babiash , and the other supervisor alleged to have unlawfully threat- the conversation , since it appears that Vandenheuval was on vacation at
ened employees are shift supervisors who took no part in any of the con- this time , I nevertheless conclude that this conversation did take place
tract negotiations within the June timeframe prior to the strike on 1 July
I BAHCALL INDUSTRIES 1261
function be performed in one manner rather than in an-
other, on an experimental basis, to study or test the effi-
ciency of certain operations. He was given the title of as-
sistant foreman to promote the respect and cooperation
of the employees. Delveaux left in February 1985
Having reviewed the entire record, I am persuaded that
Delveaux was not a supervisory employee within the
meaning of the Act and accordingly any coercive re-
marks alleged to have been made by him would not be
attributable to Respondent 6
Having credited those versions of the above conversa-
tions offered by the General Counsel's witnesses, I also
conclude that those remarks made by Babiash, Vanden-
heuval, and Seibert, suggesting that Respondent would
impose more onerous working conditions on the employ-
ees on their return if they decided to go on strike, are
essentially threats of reprisal for having engaged in pro-
tected concerted activity, which violates Section 8(a)(1)
of the Act
However, I also conclude that Babiash did not violate
the Act by suggesting that employees might be replaced
if they went on strike. This is simply an observation
about a course of action that the Respondent was legally
privileged to do, that is, permanently replace economic
strikers and, whether inhibiting, is simply a statement of
a valid legal proposition.
B Analysis and Recommendations
1 The 8(a)(5) refusal-to-bargain allegations
The General Counsel contends, as set out in the com-
plaint, that Respondent violated Section 8(a)(5) of the
Act by making "drastic and far-reaching proposals repre-
senting an emasculation of prior collective-bargaining
agreements between the parties without justification";
and the complaint lists 27 such proposals The General
Counsel also alleges that Respondent violated its duty to
bargain by adhering "rigidly to proposals predicably un-
acceptable to the Union " The complaint sets out 11 such
proposals
It is undisputed that Respondent, at the initial bargain-
ing session, presented as its proposal a contract that was
different in content and form from the existing contract,
and that it did propose sweeping and drastic revisions to
the existing contract, substantially reducing most of the
economic provisions of the existing contract. However, I
cannot conclude that Respondent, by making such pro-
posals, violated the Act.
First, it is well established that under Section 8(d) of
the Act, the duty to bargain does not mandate conces-
sions NLRB v. National Insurance Co., 343 U S 395, 404
(1952) Essentially, the General Counsel is contending
that some defect in the nature of the Respondent's origi-
nal contract pioposals renders the proposing itself a re-
fusal to bargain. To reach such conclusion there must
exist extraordinary circumstances not here present, be-
cause to hold otherwise would be to indirectly compel a
concession by finding that the original contract proposals
could not be lawfully advanced
Although it is true that the Respondent sought wide-
ranging and substantial economic concessions from the
Union, it is not unusual at the outset of negotiations for
the parties, both union and management, to make de-
mands that they realize, in all likelihood, will not be in-
cluded in the final agreement This is particularly true in
the matter of wages. In years gone by, in a better eco-
nomic climate, union wage demands often exceeded
what it could reasonably expect to obtain, while manage-
ment proposals offered far less than the employer had
any realistic possibility of actually negotiating In those
circumstances, could not both parties' proposals be re-
garded as emasculating? However, the Board does not
normally inject itself into the negotiations to proscribe
such proposals More often, the give and take of negotia-
tions govern the final results What really takes place,
apart from whatever cunning and guile may achieve, is
an economic test of strength. The relative economic
strength of the parties and the recognition of those reali-
ties, are the factors which produced the middle ground
where agreement is reached It is not for the Board to
decide, except perhaps in the most extreme cases, that
contract proposals themselves, particularly at the outset
of negotiations, are illegal, however, repugnant they may
appear to the other party
Apart from general considerations, the record discloses
substantial justification for seeking economic concessions
from the Union Respondent was experiencing financial
difficulties, due primarily to import competition that in-
duced price cutting by Respondent's competitors Re-
spondent had sought and obtained relief from both its or-
ganized and nonunion employees, as noted above.7
Thus, it is significant to note that while the General
Counsel contends that proposing and adhering to certain
economic proposals constituted bad-faith bargaining,
other organized employees of the same International
Union had agreed to some of these same economic pro-
posals In addition, the collective-bargaining agreements
under which the other Teamsters Local operated had
never contained certain provisions that Respondent pro-
posed to delete from the existing union contract, i e.,
dental care
Next, the General Counsel contends that Respondent's
conduct during the negotiations showed bad faith in ad-
hering to some 11 "predictably unacceptable" proposals
However, the record does not bear this out. At the
Union's request, the Respondent provided a letter (Jt.
Exh. 5) setting out each proposal being made by the Re-
spondent and the reason for the proposal. There was an
exchange of views and agreements were reached As set
out more fully above, Respondent agreed to drop many
of its proposals and retain the language of the existing
contract. Other items were agreed to as modified At the
end of negotiations, those items unresolved were the
basic economic items such as wages, hours, holidays, va-
cations, health and welfare, and certain other items de-
6 Obviously, having concluded that Delveaux was not a supervisor, it
is not necessary to determine whether the statements in issue are coer-
cive
4 Respondent did not "plead poverty," but simply contended that its
reduced economic viability prompted the economic relief it sought in its
proposals
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed to provide the Respondent with greater oper-
ational flexibility, such as maintenance of standard, se-
niority, and job posting Although the General Counsel
contends that all these Respondent proposals were "pre-
dictably unacceptable," the record shows that these were
fundamental items, very important to the basic positions
of both parties I cannot conclude that by maintaining
and adhering to its position on them, Respondent violat-
ed the Act Chevron Chemical Co., 261 NLRB 44 (1982);
Atlanta Hilton & Tower, 271 NLRB 1600 (1984)
2 Impasse
The General Counsel contends that Respondent violat-
ed the Act by implementing its final contract proposal
without a valid impasse having been reached. I do not
agree. It is clear that once impasse has been reached an
employer is free to make unilateral changes that are "rea-
sonably comprehended within his pre-impasse propos-
als " Taft Broadcasting Co., 163 NLRB 475, 478 (1967).
In finding impasse, the Board has held, "Whether a bar-
gaining impasse exists is a matter of judgment. The bar-
gaining history, the good faith of the parties in negotia-
tions, the length of the negotiations , the importance of
the issue or issues about which there is disagreement, a
contemporaneous understanding of the parties as to the
state of negotiations are all relevant factors to be consid-
ered in deciding whether an impasse in bargaining exist-
ed." Taft Broadcasting Co., supra at 478 In applying
these considerations to the instant case, we see that the
parties have a history of having successfully negotiated
contracts in prior years. The negotiations in issue began
16 May and went for six sessions , ending on 26 June, dust
prior to the expiration of the contract on 1 July. As de-
cided above, these were free of bad faith. At the last ses-
sion, Respondent made it clear that it was submitting its
final proposal. The Union made no further proposals and
it is not likely that further negotiation would have pro-
duced an agreement because it was clear from the outset
that the wage concessions and other economic conces-
sions being sought by Respondent were totally unaccept-
able to the Union These factors suggest an impasse.
Seattle-First National Bank, 267 NLRB 897, 898 (1983).
Additionally, the importance of the issue to Respond-
ent suggests that further bargaining would have been
futile. Even before negotiations began, it had sought and
obtained economic relief in the form of concessions from
other unions representing its employees, and had im-
posed economic reductions on its nonunion employees.
The entire record indicates that economic relief was of
immediate , central, and overriding importance to Re-
spondent and that more negotiations would probably not
have produced agreement. E. I duPont & Co., 268
NLRB 1075 (1984), Bell Transit Co, 271 NLRB 1272
(1984). In short, I conclude that a valid impasse having
being reached, Respondent was free to implement its last
proposal of 26 June.
3. Refusal to reinstate -ULP strikers
The General Counsel contends that by refusing to re-
instate the striking employees on their unconditional
offer to return to work, Respondent violated Section
8(a)(3) of the Act. Although it is true that unfair labor
practice strikers are entitled to reinstatement on an un-
conditional offer to return to work, there are two defects
in the General Counsel's position First, I have conclud-
ed that Respondent has not violated the Act, except
about certain 8(a)(1) threats made by foremen. However,
these foremen did not participate in negotiations and
clearly the limited 8(a)(1) misconduct engaged in by
them cannot be said to have either caused or prolonged
the strike Accordingly, I conclude that the strike was
not an unfair labor practice strike and, obviously, these
were not unfair labor practice strikers Nor was the offer
to return to work unconditional It was conditional, as
the Union's 9 July letter states, "upon the implementa-
tion by the Company of the wages, working conditions,
and other terms of employment that were in effect imme-
diately prior to the commencement of bad-faith bargain-
ing by the Company " Essentially, the Union was offer-
ing to return only if the Respondent agreed to return to
the prior contract.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with Respondent's
operations described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
The Respondent has engaged in certain unfair labor
practices in violation of Section 8(a)(1) of the Act I shall
recommend that the Respondent be ordered to cease and
desist therefrom and from infringing in any like or relat-
ed manner on its employees' Section 7 rights, and that it
take certain affirmative actions designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2 Drivers, Warehouse and Dairy Employees Union,
Local No 75, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3 All steel and industrial warehousemen and truck-
driver employees of the Employer at Greenbay, Wiscon-
sin, but excluding office clerical employees, supervisors,
managers , sales managers , watchmen, and guards as de-
fined in the Act constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material , Drivers, Warehousemen and
Dairy Employees Union, Local No 75, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America has been the ex-
clusive collective- bargaining representative within the
I BAHCALL INDUSTRIES 1263
meaning of Section 9(a) of the Act for all Respondent's
employees employed in the unit described above.
5 The strike that commenced on 1 July was not an
unfair labor practice strike because it was neither caused
nor prolonged by any Respondent unfair labor practices
6. Respondent did not violate the Act by implementing
its final contract proposal of 26 June since a valid im-
passe had been reached at that time
7. Joseph Delveaux is not a supervisor or agent of Re-
spondent within the meaning of Section 2(11) or (13) of
the Act.
8. Respondent violated Section 8(a)(1) of the Act by
threatening employees with more onerous working con-
ditions in the event that they went on strike
9. Respondent did not otherwise violate the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
Copies of the notice, on forms provided by the Regional
Director for Region 30, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
ORDER
The Respondent, I. Bahcall Steel & Pipe, a Division of
I Bahcall Industries, Inc , Green Bay, Wisconsin, its offi-
cers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Threatening employees with more onerous working
conditions in the event that they engage in a strike
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its place of business in Green Bay, Wiscon-
sin, copies of the attached notice marked "Appendix."9
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses - - - -
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with more onerous
working conditions in the event that they engage in a
strike.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the National
Labor Relations Act.
1. BAHCALL STEEL & PIPE , A DIVISION OF
1. BAHCALL INDUSTRIES, INC.