International Metal Specialties

National Labor Relations Board - Board Decisions

Nov 15, 1993

312 N.L.R.B. 1164 (N.L.R.B. 1993)

1164
312 NLRB No. 195
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Metal Specialties, Inc. and Iron
Workers Local No. 455, a/w International As-
sociation of Bridge, Structural and Ornamental
Iron Workers, AFL–CIO. Case 2–CA–25882
November 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 9, 1993, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions, the General Counsel and the
Charging Party each filed a brief in answer to the Re-
spondent’s exceptions, and the General Counsel filed a
brief in support of the judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Metal Spe-
cialties, Inc., Bronx, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Eric Brooks, Esq. and James Paulsen, Esq., for the General
Counsel.
James M. Bernbach, Esq., of New York City, New York,
counsel for International Metal Specialties, Inc.
Jerome Tauber, Esq. (Sipser, Weinstock, Harper Harper and
Dorn), of New York City, New York, for Iron Workers
Local No. 455, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL–CIO.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that, since July 17, 1992, International Metal
Specialties, Inc. (the Respondent) has engaged in an unfair
labor practice within the meaning of Section 8(a)(1) and (5)
of the National Labor Relations Act (the Act). It is alleged
to have insisted, as a condition of resuming negotiations for
a collective-bargaining agreement, that the Union, Iron
Workers, Local No. 455, a/w International Association of
Bridge, Structural and Ornamental Iron Workers, AFL–CIO,
drop its lawsuit to collect delinquent contributions owed by
the Respondent to various Funds, as required under the ex-
pired contract between the Respondent and the Union.
I heard this case on June 8, 1993, in New York City. On
the entire record, including my observation of the demeanor
of the witnesses, and after consideration of the brief filed by
the General Counsel and the Respondent’s letter brief, I
make the following
FINDINGS OF FACT
I. JURISDICTION—LABOR ORGANIZATION
The Respondent fabricates metal cabinets. In its operations
annually, it meets the Board’s standard for asserting jurisdic-
tion.
The Union is a labor organization as defined in Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Union has represented the Respondent’s production
and maintenance employees for many years. The last signed
contract covering these employees extended the prior con-
tract, with modifications, until May 31, 1991. On March 18,
1991, the Union served notices to terminate the contract and
it requested the Respondent to meet with it for the purpose
of negotiating a renewal agreement.
On September 30, 1991, the Union filed a petition in the
Supreme Court of the State of New York, county of New
York for an order confirming an arbitration award in which
the Respondent was found to have been delinquent in making
contributions, required by the contract in effect then, to var-
ious benefit funds. Later in 1991, the sheriff executed on the
judgment obtained therein and seized moneys from the Re-
spondent’s bank account.
On March 18, 1992, the Union served notice on the Re-
spondent that it filed another such petition to enforce a simi-
lar arbitration award, dated February 7, 1992.
William Colavito, the Union’s president, testified that,
sometime in June 1992, he met with Thomas De Rosa, the
Respondent’s president, at the Respondent’s shop. Colavito
gave the following account as to the meeting. When he
sought to discuss the Union’s demands for a renewal con-
tract, De Rosa said that he was told by his attorney not to
negotiate because moneys owed to the Union by the Re-
spondent were obtained improperly and that ‘‘unless (the
Union washes) away what (the Respondent owes, the Re-
spondent is) not going to negotiate.’’ Colavito protested that
that matter, referring to the moneys owed, was a separate
issue from negotiations and that the Respondent had an obli-
gation to negotiate. De Rosa declined to negotiate.
As to that meeting, De Rosa’s account was as follows.
Colavito asked to talk about a contract and that he responded
that he was told by his attorney ‘‘not to discuss contract’’
until the Union cleared up the improprieties it used in enforc-
ing an arbitration award.
Colavito testified also that, thereafter, he placed several
telephone calls to the Respondent’s office and left messages
for De Rosa to meet with him to negotiate a renewal con-
tract. His calls went unanswered.
It is well-settled that a party cannot insist to impasse in
bargaining that the other party abandon litigation. See
Plattdeutsche Park Restaurant, 296 NLRB 133, 137 (1989),
a case closely parallel to the instant case, factually. See also
Stackpole Components Co., 232 NLRB 723, 732 (1977);
Carpenters Local 964 (Carpenters & Suppliers Assn.), 181
NLRB 948 (1970), enfd. 447 F.2d 643 (2d Cir. 1971).
The evidence before me compels a finding that the Re-
spondent has, since June 1992, failed and refused to nego-
tiate with the Union and that it has declined to do so for an
unlawful reason, the Union’s refusal to defer to the Respond-
ent’s demand that it withdraw from its litigation seeking
1165INTERNATIONAL METAL SPECIALTIES
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
moneys from Respondent to be paid to various benefit funds,
as provided in the expired contract.
CONCLUSIONS OF LAW
1. The 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 as defined in Section
2(5) of the Act.
3. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) and (5) of the Act by
having conditioned negotiations with the Union for a renewal
conditioned collective-bargaining agreement on the Union’s
withdrawing litigation it was pursuing to collect from the Re-
spondent moneys owed under the prior contract to various
benefit funds.
4. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, International Metal Specialties, Inc.,
Bronx, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to negotiate a renewal collective-
bargaining agreement with Iron Workers Local No. 455, a/w
International Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL–CIO, by insisting, as a condition
precedent thereto, that the Union withdraw litigation it was
pursuing to collect moneys for various benefit funds, as pro-
vided for in the expired contract.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Notify the above-named Union in writing that is is
ready and willing to meet with it to negotiate a renewal con-
tract, regardless of any claims for past due moneys being
sought via arbitration or related litigation.
(b) On request by the Union, bargain collectively with it
concerning wages, hours of work, and other terms and condi-
tions of employment respecting the unit of employees of the
Respondent which the Union represents.
(c) Post at its plant in the Bronx, New York, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT insist that Iron Workers Local No. 455, a/w
International Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL–CIO, withdraw from litigating its
claims for moneys due to various benefit funds before we
agree to bargain with it towards a renewal contract.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL notify, in writing, the above-named Union that
we are ready and willing to bargain with it, regardless of any
litigation over moneys due benefit funds.
WE WILL, on request by the Union, bargain collectively
with it towards a renewal contract.
INTERNATIONAL METAL SPECIALTIES, INC.