Larsdale, Inc.

National Labor Relations Board - Board Decisions

May 10, 1993

310 N.L.R.B. 1317 (N.L.R.B. 1993)

1317
310 NLRB No. 216
LARSDALE, INC.
1 On July 8, 1992, Administrative Law Judge Philip P. McLeod
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel and the Charging Party
filed answering briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel filed a motion to strike an affidavit given
by Robert A. Valois, which was attached to the Respondent’s excep-
tions, on grounds that the affidavit constitutes evidence outside the
record in this case. We find merit in the General Counsel’s conten-
tions, and we grant the General Counsel’s motion to strike. Cali-
fornia Distribution Centers, 308 NLRB 64 fn. 3 (1992).
3 All dates hereafter are in 1990 unless otherwise indicated.
Larsdale, Inc. (Burkart Carolina) and International
Union of Electronics, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO, and
its Local Union 265FW. Cases 11–CA–14169
and 11–CA–14401
May 10, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The primary issue in this case is whether the Re-
spondent violated Section 8(a)(5) and (1) by bar-
gaining in bad faith during negotiations for a successor
collective-bargaining agreement.1
The Board has considered the decision and the
record in light of the exceptions and briefs2 and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by bargaining in bad
faith with the Union and by unilaterally implementing
various bargaining proposals in the absence of a lawful
impasse. We agree with the judge’s finding that the
Respondent violated Section 8(a)(5) by prematurely
declaring impasse on November 19, 1990, and by insti-
tuting changes on that date. However, we reverse his
finding that the Respondent engaged in bad-faith bar-
gaining between October 16 and November 19, 1990,
and between January 15 and June 5, 1991.
The Respondent is located in Henderson, North
Carolina, where it is primarily engaged in the manu-
facture of padding for automobile carpets. The Union
has represented the Respondent’s employees since
1939 and has been party to a series of collective-bar-
gaining agreements with the Respondent since that
time, the most recent of which expired on November
19, 1990.
Negotiations for a new contract commenced on Oc-
tober 16, 1990.3 Prior to the contract’s November 19
expiration, three additional bargaining sessions were
held, including one on November 19. At the November
19 meeting the Respondent presented a ‘‘last, best and
final offer’’ and told the Union that if it was not ac-
cepted it would be implemented at midnight. The offer
was not accepted, and the Respondent, declaring im-
passe, implemented it as promised.
On December 5 the Union filed an unfair labor prac-
tice charge, alleging that the Respondent failed to bar-
gain in good faith. After being notified by the Board’s
Regional Office that it intended to issue a complaint,
the Respondent commenced settlement discussions
with Regional Office personnel. Thereafter, the Re-
spondent informed the Union by letter dated January
11, 1991, that ‘‘we are withdrawing our implementa-
tion of our last, best and final offer’’ and that the ex-
pired contractual terms would be reinstated. The Re-
spondent further stated that although ‘‘health insurance
is being reinstated,’’ it would be with a different car-
rier, which would provide ‘‘identical’’ or ‘‘better’’
coverage than that provided under the expired contract.
The Respondent assured the Union that any employees
who may have incurred medical expenses during the
hiatus would be reimbursed.
With the status quo restored, the parties returned to
the bargaining table on January 15, 1991. On January
18, 1991, the Regional Director issued a complaint, al-
leging, inter alia, that the Respondent had bargained in
bad faith between October and January. Nine more
bargaining sessions were held from February 7 to April
26, 1991, ending again with the Respondent’s presen-
tation of a final contract offer, which the Union ulti-
mately rejected. During this time, the Respondent con-
tinued to pursue settlement discussions with the Re-
gion. On May 6, 1991, the Regional Director notified
the Respondent that in light of a new charge alleging
the Respondent’s refusal to bargain in good faith since
January 15, 1991, the Respondent’s proposed settle-
ment of the January 18, 1991 complaint allegations
would not be approved.
On June 1, 1991, the Respondent implemented the
final offer which was submitted to the Union in April.
One final bargaining session was held on June 5, but
nothing was resolved. A consolidated complaint issued
thereafter encompassing all the Respondent’s bar-
gaining conduct since October.
The judge found that throughout the entire period of
negotiations from October to June the Respondent bar-
gained from a ‘‘pre-conceived agenda, which it knew
the Union would not agree to [and] hurried as fast as
possible to achieve ‘impasse’ in order to implement its
agenda, bypassing altogether any meaningful attempt at
bargaining.’’ Specifically, he found that certain of the
Respondent’s initial proposals were ‘‘predictably unac-
ceptable’’ to the Union and that the Respondent rigidly
adhered to these proposals in negotiations through No-
vember 19, the last day of the contract. Thus, when the
Respondent implemented its final offer at midnight on
November 19, the judge found that ‘‘it did so without
there being a true impasse with the Union and, further,
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See generally Taft Broadcasting Co., 163 NLRB 475, 478
(1967).
after a course of bad faith bargaining.’’ The judge fur-
ther found that after the Respondent withdrew its un-
lawfully implemented contract proposals and resumed
negotiations on January 15, 1991, it bargained in bad
faith again by unilaterally instituting a new and dif-
ferent health insurance plan without bargaining with
the Union, and by ‘‘tailor[ing] its proposals and tactics
to create a facade of good faith bargaining’’ and re-
newing its ‘‘push to achieve impasse.’’
For the reasons stated below, we find, in agreement
with the judge, that the parties were not at impasse on
November 19 and that the Respondent’s November 19
unilateral implementation of its contract proposals vio-
lated Section 8(a)(5) and (1). Contrary to the judge,
however, we find that the Respondent’s subsequent
conduct in negotiations from January 15 to June 1,
1991, did not violate the duty to bargain in good faith,
that the parties were at impasse on June 1, 1991, and
that therefore the Respondent’s June 1, 1991 unilateral
implementation of its contractual proposals did not
violate Section 8(a)(5) and (1).
1. October 16—November 19 negotiations
As stated above, the parties held their first negotia-
tion session on October 16, with each exchanging a
comprehensive set of bargaining proposals that called
for changes in the current contract. The Union’s pro-
posals included, inter alia, a ‘‘substantial’’ but unspec-
ified wage increase, the addition of two holidays, an
improved vacation eligibility schedule, daily overtime
for work in excess of 8 hours, dependent coverage
under the health insurance plan, extension of the griev-
ance filing deadline by 3 days, a reduction of the pro-
bationary period for new employees from 45 to 30
days, and the addition of the local union as named
party to the contract. The Respondent proposed the
elimination of dues checkoff, ‘‘successors’’ as a party
to the contract, paid grievance processing time for
union stewards, superseniority for union officials for
purposes of layoff and recall, health insurance, pay-
ments to the pension plan, and arbitration. The Re-
spondent also proposed a wage freeze, new holiday
pay eligibility requirements, and the addition of lan-
guage to the seniority clause providing for shift assign-
ments to be made without regard to seniority, the ter-
mination of seniority if a layoff lasts longer than an
employee’s length of service (or 12 months as pro-
vided in the contract), and that ability and skill shall
be considered along with seniority in job posting-bid-
ding, with the provision that ‘‘ability and skill will be
determined in the sole discretion of the company.’’
After the Union expressed its strong objection to the
Respondent’s proposals, the meeting adjourned with an
agreement to meet again on October 23.
At the October 23 session, the Union countered the
Respondent’s proposals with additional proposals, such
as the elimination of the management-rights and the
no-strike clause. However, the main theme of discus-
sion at this and the next meeting on November 1 cen-
tered on the Respondent’s proposals, particularly its
reasons for wanting to eliminate dues checkoff and ar-
bitration. At the November 1 meeting the Union stated
that it would not sign a contract that did not provide
for arbitration. When the Respondent replied that it
would concede arbitration only if its remaining pro-
posals were accepted, the Union adjourned the meet-
ing, stating that it was going to file unfair labor prac-
tice charges and refusing to agree to another meeting
until the Board resolved the charge.
The Union later changed its position about cutting
off further talks and, with the help of the Federal Me-
diation and Conciliation Service (FMCS), set another
meeting for November 19. To prepare for that meeting,
the Union requested by letter certain information from
the Respondent pertaining to the contractual pension
and health insurance plans.
The parties met as planned on November 19 in the
presence of an FMCS mediator. The Union opened the
meeting by disputing the claim made by the Respond-
ent in a letter following the November 1 session that
the parties were at impasse, and stated that it was
ready to continue bargaining concerning all issues. The
parties then reviewed the Respondent’s pending pro-
posals. After this review, the Union presented a coun-
terproposal, contingent on the retention of arbitration,
that contained several concessions involving the with-
drawal of some of its own proposals and agreement to
some of the Respondent’s. The Union further proposed
that the contract be extended on a day-to-day basis so
that it could analyze the health insurance and pension
information, which the Respondent furnished at the be-
ginning of the meeting.
The Respondent rejected the Union’s counter-
proposals, reminded the Union that the contract ex-
pired that night, and then presented its ‘‘last, best and
final offer’’ which it said would be implemented at
midnight. The Respondent further rebuffed the Union’s
request for a contract extension.
At midnight on November 19 the Respondent imple-
mented its final offer. At the Union’s request, the par-
ties met again on December 4, but no agreement was
reached.
The Board has defined impasse as the point in time
of negotiations when the parties are warranted in as-
suming that further bargaining would be futile.
Pillowtex Corp., 241 NLRB 40, 46 (1979). ‘‘Both par-
ties must believe that they are at the end of their
rope.’’ PRC Recording Co., 280 NLRB 615, 635
(1986), enfd. 836 F.2d 289 (7th Cir. 1987).4 Applying
these principles here, we find no basis for concluding
1319LARSDALE, INC.
5 We do not agree with the judge’s finding that Respondent bar-
gained in bad faith from October 16 through November 19. The
judge’s findings are based essentially on the content of the Respond-
ent’s proposals. The judge said that they were ‘‘predictably unac-
ceptable.’’ In our view, the proposals were an aspect of hard bar-
gaining, and such conduct, standing alone, does not constitute bad-
faith bargaining. See Reichhold Chemicals, 288 NLRB 69 (1988).
6 All dates hereafter are in 1991 unless otherwise indicated.
7 The judge found that the status quo was not fully restored with
respect to health insurance because the Respondent contracted with
a different insurance carrier which he found provided benefits infe-
rior to those provided by the insurance carrier which administered
benefits during the term of the expired contract. Having acted unilat-
erally in doing so, in combination with diminished benefit coverage,
the judge found that the Respondent separately violated Sec. 8(a)(5)
and (1). We disagree.
As the judge notes in fn. 6 of his decision, the unilateral change
in health insurance plans was not alleged in the complaint. Nor do
we find that the Respondent was otherwise put on notice prior to
or during the hearing that this conduct might be the basis of a viola-
tion. Even after the hearing the General Counsel did not argue in
its brief to the judge that this conduct violated the Act.
Furthermore, we note that the General Counsel’s failure to plead
in the consolidated complaint or litigate at trial the change in health
insurance was not inadvertent. In correspondence to the General
Counsel prior to the issuance of the consolidated complaint, the
Union urged this conduct as a violation. Nevertheless, the ‘‘General
Counsel chose not to issue a complaint . . . and we are unwilling
to circumvent his authority by basing an unlawful [unilateral change]
finding upon a record which does not specifically address this
issue.’’ Florida Steel Corp., 224 NLRB 45 fn. 2 (1976). See also
Union-Tribune Publishing Co., 307 NLRB 25 at fn. 2 (1992); Elec-
trical Workers IBEW Local 1186, 264 NLRB 712 fn. 3 (1982).
Accordingly, because the change in health insurance plans was
neither alleged in the complaint nor litigated at the hearing, we re-
verse the judge’s finding of violation in this respect. We further find,
in the absence of other evidence to the contrary, that the Respondent
fully restored the status quo prior to returning to the bargaining table
on January 15.
that the parties were at impasse on November 19. The
November 19 meeting constituted only the fourth ne-
gotiating meeting between the parties. Unlike the prior
meetings, which never got beyond a discussion of the
reasons behind the Respondent’s desire to eliminate
the dues-checkoff and arbitration provisions of the
contract, the meeting of November 19 constituted the
first real indication that some progress toward agree-
ment was taking shape. The Union’s counterproposal
on this date, containing a number of concessions, was
a sign that the Union was willing to modify its pro-
posals. Given this movement by the Union, the Re-
spondent was not justified in concluding that negotia-
tions were at impasse simply because the Union’s con-
cessions were not more comprehensive or sufficiently
generous. Old Man’s Home, 265 NLRB 1632 (1982);
and Cal-Pacific Furniture, 228 NLRB 1337 (1977).
The Union did not say that no further concessions
could be expected. Further, the Respondent’s declara-
tion of impasse prevented the Union from having the
opportunity to evaluate the health insurance and pen-
sion information it had just received that day from the
Respondent, thereby precluding the possibility that the
Union might have made further movement on those
subjects at a subsequent session. Under these cir-
cumstances, we agree with the judge that there was not
a genuine impasse on November 19 and that by subse-
quently implementing its proposals the Respondent
violated Section 8(a)(5) and (1) of the Act.5
2. January 15—June 1 negotiations
As stated above, the parties returned to the bar-
gaining table on January 15, 1991,6 after the Respond-
ent restored the status quo that existed prior to the un-
lawfully implemented proposals of November 19,
1990.7 Between January 15 and April 10 the parties
held seven more negotiating sessions.
At the January 15 session the Respondent attempted
to summarize each side’s outstanding bargaining pro-
posals carried over from the October—November ne-
gotiations and the position of both parties with respect
to those proposals. Discussions in this regard continued
at the next meeting held on February 7. On February
8 the Union presented a proposal but cautioned that it
was ‘‘conditional on the grounds that the Company is
willing to make major concessions in the areas you
proposed to destroy this membership and union.’’ Spe-
cifically, in addition to keeping arbitration which the
Union continued to maintain was essential to achieving
a new contract, the Union identified wages, health in-
surance, pension, checkoff, and superseniority as the
five areas in which the Respondent had to make major
concessions if meaningful bargaining was to occur.
Over the course of the next four bargaining sessions
the Respondent withdrew its proposals to eliminate ar-
bitration, checkoff, and superseniority. In addition, on
‘‘non-major’’ items the Respondent withdrew its pro-
posal that ability and skill be determined ‘‘in the sole
discretion of the Company’’ for job posting-bidding
purposes, withdrew its proposal to eliminate paid time
off for stewards in settling grievances, agreed to the
Union’s proposals to shorten the probationary period,
and that seniority not be a factor in shift assignments,
and modified its proposals linking layoff to the termi-
nation of seniority by agreeing to ‘‘grandfather’’ exist-
ing employees from its proposal to terminate seniority
for layoffs where length of service is less than 12
months.
On April 10 the Respondent submitted a ‘‘last, best
and final offer,’’ which incorporated the parties’ agree-
ment on the foregoing subjects. The Union replied that
the proposal was inadequate because it still sought to
freeze wages and to eliminate health insurance and
pensions. Although the parties met two more times on
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984).
9 This case is distinguishable from American Meat Packing Corp.,
301 NLRB 835 (1991), where, unlike here, the respondent mani-
fested no real intent to adjust differences, but essentially adopted an
unlawful ‘‘take-it-or-leave-it’’ approach.
April 25 and 26, neither party presented any new pro-
posals on these subjects and no new agreements were
reached. The Respondent unilaterally implemented its
final offer on June 1.
On these facts, and ‘‘scrutiniz[ing the Respondent’s]
overall conduct,’’8 we do not agree with the judge that
the Respondent has demonstrated the kind of intran-
sigence and insistence on its own proposals which evi-
dences bad faith. After the parties reconvened on Janu-
ary 15 for the second round of negotiations, the Re-
spondent made a number of significant concessions in
areas of great concern to the Union which, rather than
evincing an unlawful take-it-or-leave-it bargaining
stance as found by the judge, was more demonstrative
of a flexible good-faith approach to bargaining. Thus,
it withdrew its proposal to eliminate arbitration, there-
by capitulating on what the Union described as the
‘‘key issue that had to be resolved’’ as a prerequisite
to subsequent meaningful bargaining. The Respondent
made concessions on other subjects as well, including
the union-designated ‘‘major’’ items of checkoff and
superseniority. In addition, to the Union’s satisfaction,
the Respondent either withdrew or modified other pro-
posals regarding probation, seniority, job posting-bid-
ding, and steward pay for time spent in grievance set-
tlement. As the judge himself acknowledged, ‘‘signifi-
cant substantive bargaining’’ was developing during
the January—June negotiations.
When negotiations finally broke down following the
Respondent’s April 10 submission of its ‘‘last best and
final offer,’’ only three of the major items designated
by the Union remained unresolved: wages, health in-
surance, and pensions. Although the Respondent was
unwilling to agree to the Union’s demands on these
three subjects, its ‘‘failure to make these concessions
to the Union [does not constitute] a sufficient mani-
festation of intent to avoid agreement.’’ 88 Transit
Lines, 300 NLRB 177, 179 (1990).9 As stated in Chal-
lenge-Cook Bros., 288 NLRB 387, 389 (1988), ‘‘a
party may stand firm by a bargaining proposal legiti-
mately proffered.’’ Here, the record showed that the
parties took firm positions regarding wages, health in-
surance, and pensions from which neither was willing
to budge. Under these circumstances, we cannot con-
clude that by maintaining and adhering to its position
on these subjects the Respondent violated the Act.
Chevron Chemical Co., 261 NLRB 44 (1982).
We further find that the parties were at impasse on
June 1 when the Respondent implemented its final
offer. As stated above, the Respondent submitted a
final offer on April 10, but the Union rejected it be-
cause it failed to provide for a wage increase and to
maintain the pension and health insurance plan. The
Respondent made clear from the outset of negotiations
that economic relief in the form of a wage freeze and
the elimination of pension and health insurance was of
immediate, central, and overriding concern to it. How-
ever, equally clear throughout negotiations was the fact
that the concessions sought on these subjects were to-
tally unacceptable to the Union. Between the Respond-
ent’s submission to the Union of its final offer and its
implementation, neither party made any movement in
these critical areas, suggesting that the parties were
deadlocked and that further bargaining would have
been futile. Therefore, we find that on June 1 when the
Respondent implemented its final offer a valid impasse
existed and that the implementation of the final offer
was lawful. Bloomsburg Craftsmen, 276 NLRB 400,
404 (1985). Accordingly, we shall dismiss this aspect
of the complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, Larsdale, Inc. (Burkart Carolina), Hender-
sonville, North Carolina, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing unit employees’ terms and
conditions of employment on November 19, 1990,
without bargaining with the Union to either an agree-
ment or impasse.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) To the extent that it has not already done so,
make whole unit employees Jeannie Jackson and John
Leonard for any loss of pay they may have suffered
as a result of their unlawful layoff following the unilat-
eral elimination on November 19, 1990, of the contrac-
tual superseniority clause; and make whole unit em-
ployees for the losses they may incurred commencing
on December 31, 1990, when the contractual health in-
surance plan was eliminated, until about January 14,
1991, when the Respondent restored health insurance
coverage, with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(b) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
1321LARSDALE, INC.
10 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.’’
(c) Post at its Henderson, North Carolina facility
copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notices, on forms provided by the Re-
gional Director for Region 11, after being duly signed
by Respondent’s representative, shall be posted by it
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 ensure that the notices are not al-
tered, defaced, 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 Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT unilaterally change the terms and con-
ditions of employment of bargaining unit employees
without bargaining with the Union to either an agree-
ment or impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, to the extent that we have not already
done so, make whole unit employees Jeannie Jackson
and John Leonard for any loss of pay they may have
suffered as a result of the unlawful discrimination
against them, with interest.
WE WILL, make whole unit employees for the losses
they may have incurred commencing on December 31,
1990, when the contractual health insurance plan was
eliminated, until January 14, 1991, when health insur-
ance coverage was restored, with interest.
LARSDALE, INC. (BURKART CAROLINA)
Donald R. Gattalaro, Esq., for the General Counsel.
Guy F. Driver Jr. (Wombley, Carlyle, Sandridge and Rice),
of Winston-Salem, North Carolina, for the Respondent.
Louise P. Zanor, Esq., of Washington, D.C., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case on October 9–11, 15, and 16, 1991, in Raleigh, North
Carolina. The charges which gave rise to this case were filed
by the International Union of Electronics, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO, and its Local
Union 265FW (the Union) on December 5, 1990, and May
6, 1991, against Larsdale, Inc. (Burkart Carolina) (Respond-
ent). On June 21, 1991, an order consolidating cases, consoli-
dated complaint, and notice of hearing issued.
The consolidated complaint alleges that Respondent nego-
tiated with the Union in bad faith with no intent to enter a
final and binding collective-bargaining agreement; bypassed
the Union and dealt directly with employees; unilaterally and
without prior notice to, or consultation with the Union,
ceased contributions to employee health insurance and pen-
sion plans; unilaterally discontinued the employees’ seniority
plan, including superseniority for union officials; laid off em-
ployees Jeannie Jackson and John Leonard as a result of the
unilateral discontinuance of the seniority plan; and, after re-
storing contributions to the employee health and pension
plans, again proposed that these contributions be eliminated,
and thereafter unilaterally eliminated such contributions.
In its answer to the consolidated complaint, Respondent
admitted certain allegations including the filing and serving
of the charges; its status as an employer within the meaning
of the Act; the status of the Union as a labor organization
within the meaning of the Act; the history of collective bar-
gaining between Respondent and the Union prior to the
events described in the complaint; and the status of certain
individuals as supervisors and/or agents of the Respondent
within the meaning of Section 2(2), (11), and (13) of the
Act. Respondent denied having engaged in any conduct
which would constitute an unfair labor practice within the
meaning of the Act.
At the trial here, all parties were represented and afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. Following the close of
the trial, all parties filed timely briefs with me which have
been duly considered.
On the entire record in this case and from my observation
of the the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Burkart Carolina is a division of Larsdale,
Inc., a Delaware corporation. The Burkart Carolina facility is
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
located in Henderson, North Carolina, where it is engaged
primarily in the manufacture of padding for automobile car-
pets. In the course of its business operations Respondent an-
nually receives at its Henderson facility materials and sup-
plies valued in excess of $50,000 directly from points outside
the State of North Carolina. In addition, Respondent annually
ships from its Henderson facility products valued in excess
of $50,000, directly to points outside the State of North
Carolina.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
International Union of Electronics, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO, and its Local
Union 265FW is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At its facility in Henderson, North Carolina, Respondent
primarily manufactures padding for automobile carpets. Re-
spondent also manufactures copper wire which it supplies to
various customers, including Gilbert Manufacturing Com-
pany, a privately held corporation owned by the same prin-
cipal who owns Respondent. The Union has been the exclu-
sive collective-bargaining representative of Respondent’s em-
ployees since 1939. This long history of bargaining has in-
cluded a series of collective-bargaining agreements, the most
recent of which commenced on August 1, 1987, and was ef-
fective until November 19, 1990.
On August 21, 1990, the Union served notice on Respond-
ent, with a copy to Federal Mediation and Conciliation Serv-
ice (FMCS), of its desire to renegotiate the collective-bar-
gaining agreement.
1. October 16, 1990: negotiation session 1
On October 16, 1990, the parties held their first negoti-
ating session, during which they exchanged contract pro-
posals. The Union was represented by Elmer Moyer, an
International union representative, and by a local negotiating
committee. Respondent was represented by Attorney Margie
Case and Plant Manager Larry West. A brief summary of the
respective contract proposals is in order as a backdrop to
their further actions.
Briefly, the Union proposed adding Local 265FW as a
party to the agreement; extending the time for filing of griev-
ances by employees; reducing the probationary period for
new employees from 45 to 30 days; extending from 12
months to 36 months the length of layoff after which senior-
ity is terminated; and extending the period of illness or injury
from 12 months to 36 months after which seniority is termi-
nated. The Union also proposed various improvements in re-
tention and bumping privileges for regular employees in case
of layoff; various improvements in job posting and job bid-
ding; and improvements in both holidays and vacations. The
Union proposed overtime pay for work in excess of 8 hours
per day and for Saturdays. The Union also proposed that Re-
spondent pay the full cost of group insurance, including de-
pendent coverage, as it had prior to the 1987 agreement. Fi-
nally, the Union proposed a ‘‘substantial’’ wage increase
each year of the new agreement.
Respondent proposed deleting ‘‘successors’’ as a party to
the agreement and changing the nondiscrimination clause to
read simply, ‘‘The Union and the Company will observe the
legal rights of all employees.’’ Respondent proposed elimi-
nating union dues checkoff and eliminating paid time off for
union grievance committee persons for time spent on griev-
ance settlements. Respondent proposed eliminating arbitration
altogether and substituting language providing, ‘‘The deci-
sion of the Industrial Relations Representative shall be final
and binding.’’ Respondent proposed reducing the length of
layoff after which seniority is terminated from 12 months to
‘‘12 months or the employee’s length of service, whichever
is less.’’ Concerning job posting and bidding, Respondent
proposed that jobs be awarded on the basis of ability and
skill, adding, ‘‘Ability and skill will be determined in the
sole discretion of the Company.’’ Respondent proposed re-
ducing pay for employees temporarily promoted to another
job from the higher rate for the entire day to only time
worked in the temporary job. Respondent proposed elimi-
nating superseniority for all union officials for purposes of
layoff and recall. Concerning shift assignments, Respondent
proposed that it never be required to assign shifts by senior-
ity. Respondent proposed eliminating the Union’s ability to
challenge a pay rate established by Respondent in a new or
changed job. Last, and certainly not least, Respondent pro-
posed eliminating both health insurance and its pension plan.
Concerning the pension plan, Respondent proposed, ‘‘As of
November 19, 1990, the Company shall cease making con-
tributions to the pension plan; no additional service credits
shall be given; and the plan shall be frozen.’’
After the parties took a break to review each other’s pro-
posals, the parties reconvened. The Union objected to Re-
spondent’s proposals as attempting to ‘‘gut the contract, to
basically eliminate our ability to function as a local union.’’
The Union pointed out that Respondent was proposing things
that they knew the Union could not accept and accused Re-
spondent of trying to roll the clock back to 1940. The meet-
ing adjourned shortly thereafter.
2. October 23, 1990: negotiation session 2
When the parties held their second meeting, on October
23, 1990, Attorney Margie Case, Respondent’s primary
spokesperson, presented the Union with a copy of the
Union’s initial proposal with various sections highlighted to
show that many of the revisions proposed by the Union were
designed to reinstate provisions which had been in effect
prior to the 1987 agreement. Case explained that she did this
to counter the Union’s complaint that Respondent’s initial
proposal was intended to turn the clock back to 1940. Case
argued it was the Union who was trying to turn the clock
back.
In the 1987–1990 agreement, the Union had granted nu-
merous concessions, including wage cuts and employee pay-
ments for health insurance premiums for dependent coverage.
It is undisputed that when the Union agreed to the 1987–
1990 collective-bargaining agreement, Respondent told the
Union that the Company would agree to restore these con-
cessions if it continued to operate and prosper. There is no
1323LARSDALE, INC.
1 Respondent later provided information which showed that dues-
checkoff services cost Respondent approximately $6 per year.
question that the Union’s proposal attempted to restore the
1987 concessions.
Case also distributed two newspaper articles headlined:
‘‘Economists Are Getting Downright Pessimistic’’ and ‘‘Fi-
nancial Outlook Scary, But There Might Be Places To
Hide.’’ After distributing the articles, Case explained Re-
spondent’s demand for eliminating health insurance and pen-
sions stating, ‘‘A prudent man in times like these wants to
make more money. We want to batten down the hatches. We
want to decrease expenses so we can make more money in
the face of financial forecasts.’’ Case then verbally presented
Respondent’s proposals.
When Case was finished, the Union stated that it could not
agree to Respondent’s proposals to eliminate arbitration,
superseniority, or union dues checkoff. The Union challenged
Case to explain why Respondent proposed to eliminate dues
checkoff. Case replied that employees should have ‘‘free-
dom.’’ The Union replied that North Carolina is a right-to-
work State and that employees already had complete freedom
to choose whether to be union members.
The Union distributed a page of additional proposals ‘‘To
combat some of the proposals that the Company was making
. . . .’’ These additional proposals called for deleting the en-
tire management-rights clause, awarding jobs solely on the
basis of seniority, prohibiting nonunit employees from per-
forming bargaining unit work, deleting the no-strike clause,
and instituting cost-of-living adjustments. Each party rejected
the other’s proposals in their entirety.
3. November 1, 1990: negotiation session 3
The third negotiation session began by Respondent noting
that it had permanently laid off three management employ-
ees: a sales manager, a purchasing agent, and a maintenance
supervisor. This was in response to comments at the previous
meeting by the Union that Respondent expected only bar-
gaining unit employees to take cuts, and that Respondent
never took anything away from management. By the time of
this meeting, there were only about 50 hourly employees
working, approximately half of what the work force had been
only a few months before. In fact, the maintenance super-
visor had been scheduled to retire soon and the sales man-
ager had 45 years’ tenure with Respondent. Thus, at least
two, if not all three management employees allegedly laid off
were eligible to draw retirement.
Case next proposed to modify Respondent’s original pro-
posal that in order to get holiday pay, an employee must
work the day after the holiday. In response to a pending
grievance, Respondent modified this proposal and also re-
treated from the position of not permitting holiday pay in the
event of vacation occurring prior to the holiday. As modified,
however, Respondent still proposed eligibility requirements
that were not present under the 1987–1990 agreement.
The Union again challenged Respondent to explain its pro-
posal to eliminate dues checkoff. Case again replied that
checkoff was a question of ‘‘freedom’’ and added that there
was also a cost factor involved. The Union responded by re-
questing information concerning the cost of providing dues-
checkoff services to the Union.1
The Union then asked Respondent to explain its reason for
eliminating arbitration from the grievance procedure. Case
responded by stating that because the parties had a good
record for settling grievances, arbitration was unnecessary.
The Union responded that the settlement rate was substantial
precisely because arbitration acted as a deterrent to both par-
ties and promoted settlements. The Union also countered that
a contract without arbitration would be meaningless and un-
enforceable and that Respondent was committing an unfair
labor practice by proposing the elimination of arbitration
while maintaining the no-strike clause in the expired con-
tract. The Union stated that it would file unfair labor practice
charges with the Board regarding that proposal. At the hear-
ing here, Union Negotiator Robinson conceded that at the
November 1 meeting, he took the position that arbitration
had to be disposed of before he would bargain on other
issues.
After the parties caucused, Case asked the Union if it
would accept all Respondent’s other proposals if Respondent
agreed to rescind its elimination of arbitration. The Union re-
plied that it would not agree to everything else, but that it
would be willing to negotiate the other issues. Case, how-
ever, made it a point to state that she ‘‘wanted to go on
record’’ as having made such an offer. The Union told Re-
spondent that it would also be filing unfair labor practice
charges over its unwillingness to concede on the arbitration
issue only if the Union would accept all the rest of Respond-
ent’s proposals. Case then asked the Union if it wanted to
set another meeting date. It is undisputed that the Union re-
fused to schedule another meeting date, stating it would
‘‘prefer’’ to wait clarification from the Board.
Events Between November 1 and the Next Negotiation
Session on November 19
On November 2, 1990, Case wrote to the Union reciting
her version of the meeting the previous day. The letter con-
cludes:
In view of the parties’ impasse caused by your refusal
to discuss other issues until the Company concedes the
arbitration issue, you are hereby notified that on No-
vember 19, 1990, at the expiration of the current con-
tract, the Company will implement its offer which is
now on the table.
On November 5, 1990, the Union filed an unfair labor
practice charge against Respondent with the Board.
On November 7, 1990, Respondent posted a notice to its
employees which stated its proposal to freeze the existing
pension plan.
In response to Respondent’s letter of November 2, the
Union contacted FMCS requesting help in scheduling another
meeting. FMCS, in turn, contacted Respondent. On Novem-
ber 14, 1990, Respondent sent a letter to the Union agreeing
to a meeting suggested by FMCS on November 19. In that
same letter, Respondent stated:
If the current situation remains unchanged, the Com-
pany still plans to implement its proposal at the expira-
tion of the present contract, with two exceptions. . . .
First . . . the Company would extend the insurance
plan to the end of the year, instead of ending it on No-
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 On reviewing the information, the Union determined that it was
actually not complete. After pointing this out to Respondent, Re-
spondent provided additional information that same day.
vember 19. Second . . . the pension plan freeze would
occur at the end of the month of November rather than
on the 19th.
The letter also informed the Union that Respondent had pub-
lished for its employees a document entitled ‘‘Notice Of Ces-
sation Of Future Benefits Accruals Under the Burkart Caro-
lina Hourly Pension Plan.’’ In this notice to employees, also
posted on November 14, Respondent informed employees,
‘‘You are hereby notified that Burkart Carolina has given no-
tice to the Furniture Workers Division, IUE that on Novem-
ber 19, 1990, the Company will implement the proposal for
a new contract that the Company has proposed to the Union
in negotiation.’’
On the following day, November 15, the Union wrote to
Respondent disputing Case’s account of the November 1 bar-
gaining session and stating that it was Respondent, not the
Union, that had bargained in bad faith. The letter also stated,
‘‘the Union wished to emphasize that the parties had not
reached impasse’’ and ‘‘any attempt by the Company to im-
plement its proposals would constitute an additional unfair
labor practice.’’ That same day the Union also requested de-
tailed information regarding Respondent’s group insurance
and pension programs.
4. November 19, 1990: negotiation session 4
On November 19, the parties met under the auspices of
FMCS. After opening remarks by FMCS Mediator Bradley,
the Union expressed its position that the parties were not at
impasse. The Union stated that it was ready to meet and bar-
gain concerning all issues. Case responded by noting that at
the last meeting, the Union had said that the issue of arbitra-
tion was the key issue which had to be resolved first. The
Union responded by stating that it would request withdrawal
of the unfair labor practice charge relating to Respondent’s
proposal to eliminate arbitration. It then stated that there
were many issues separating the parties, including arbitration,
dues checkoff, seniority, pension, and insurance.
Case reiterated to FMCS Mediator Bradley the same rea-
sons it had given the Union for wanting to eliminate pen-
sions and insurance—that Respondent wanted to be ‘‘pru-
dent’’ and wanted to ‘‘batten down the hatches.’’ Bradley
asked the parties to caucus separately. Before adjourning,
Case hand-delivered documents responding to the Union’s
request for information. The Union asked Case if all the re-
quested information had been provided, and Case said it
had.2 The parties then adjourned.
When FMCS Mediator Bradley met separately with the
Union, Bradley stated he saw no chance of the parties reach-
ing agreement because Respondent had told him it was un-
likely they would agree to the union proposals or that Re-
spondent would change any of its proposals. After Bradley
met separately with each of the parties, a joint meeting re-
convened. The Union then asked Respondent to review its
proposals and explain the reasons behind them. Case ob-
jected, stating that she had already done this in previous
meetings. The parties, however, proceeded to discuss em-
ployer proposals.
Concerning checkoff, the Union offered to bear the cost of
checkoff ($6.20 per year) if the Employer would agree to
keep it in the contract. Case responded that cost was not a
reason for Respondent’s proposal concerning checkoff, insist-
ing instead that employee ‘‘freedom’’ was the sole reason for
its proposal. Regarding the elimination of pensions and insur-
ance, Case again cited ‘‘prudence’’ as the reason for Re-
spondent’s position.
The Union then proposed certain concessions if Respond-
ent would agree to leave arbitration as it was in the existing
contract. More particularly, the Union offered to withdraw its
proposal to shorten the probationary period, to withdraw its
proposal to make the local union a party to the contract, to
withdraw its proposal to extend the time for filing griev-
ances, to agree to Respondent’s proposal to eliminate the
‘‘successor clause,’’ and to agree to Respondent’s proposal
to terminate seniority after a layoff of 12 months or the em-
ployee’s length of service, whichever is less. In conjunction
with this proposal, the Union also proposed extending the ex-
isting contract on a day-to-day basis while the Union ana-
lyzed the insurance information it had just been given, and
to give it time to formulate a response.
In response to this proposal, Respondent responded by not-
ing that the contract expired at midnight that night and asked
if an analysis of the information provided concerning pen-
sions and insurance would permit the Union to agree to Re-
spondent’s proposal. The Union, of course, had to admit that
it did not know of anything which might permit it to agree
to Respondent’s proposal to eliminate insurance and pensions
altogether. Respondent stated then that it was prepared to
give the Union its ‘‘last, best and final offer’’ which it would
implement at midnight that night. Respondent’s offer was a
reiteration of its original offer with the following modifica-
tions: to drop its proposal to remove successorship language
from the contract; to drop its proposal eliminating arbitration;
to eliminate the pension provision at the end of that month
rather than immediately; and to eliminate insurance at the
end of the year rather than immediately. Respondent also re-
fused to extend the existing agreement and again notified the
Union that it would implement its final offer at midnight that
night.
The Union again asked that the existing agreement be ex-
tended on a day-to-day basis in order to allow union mem-
bers to vote on Respondent’s proposal. Respondent again re-
fused.
Midnight November 19, 1990: Expiration of Existing
Agreement and Implementation of Respondent’s
‘‘Final Offer’’
At midnight on November 19, the parties’ existing collec-
tive-bargaining agreement expired.
At that same time, Respondent unilaterally implemented its
‘‘final offer.’’ In so doing, Respondent unilaterally elimi-
nated pension payments and health insurance as proposed in
the final offer, eliminated union dues checkoff and super-
seniority for union officials, and reduced pay for employees
temporarily promoted to another job.
5. Events up to and including negotiation session 5
On November 20, the Union held a meeting with its mem-
bers during which they voted to reject Respondent’s final
1325LARSDALE, INC.
offer. They also voted not to initiate strike action but to send
negotiators back to the bargaining table to try to reach an
agreement with Respondent.
In a letter dated November 21, Case wrote to the Union:
The subject matter of items in the Company’s last, best
and final offer had been proposed to the Union as early
as October 16, 1990, and the Union had ample opportu-
nities to discuss these terms at all previous bargaining
sessions. Despite this fact, the Union never offered an
acceptable counterproposal, but instead engaged in ob-
streperous and dilatory tactics designed to prevent the
Company from having the benefit of its proposals. . . .
We are . . . operating under the terms of the imple-
mented proposal and not the terminated ‘‘old contract.’’
We anticipate that there will be another layoff no later
than December 5, 1990. We further anticipate that the
extent of the layoff will be such as to include most of
the Union negotiating committee.
Although in the letter dated November 21, Case expressed
Respondent’s position that it believed ‘‘further negotiations
would be futile,’’ the Union requested another meeting. Re-
spondent agreed, and the parties held their fifth meeting on
December 4, 1990. FMCS was not present. The Union stated
that it wanted to achieve a contract and that after analyzing
the information received from Respondent, the Union had
formulated a contract proposal regarding insurance. Case,
however, asked the Union for a ‘‘complete proposal.’’ The
Union in turn asked Case if she had the authority to change
Respondent’s offer. Case avoided a direct response, stating
instead that she had the authority to consider the Union’s
proposal. Case stated that the Union had Respondent’s last,
best and final offer, but that she would consider ‘‘a complete
proposal’’ from the Union. Case then stated: ‘‘Maybe it will
be better; maybe you will offer that the Union pay for insur-
ance and take a $2 per hour wage cut—how do I know? I
will look at a complete proposal.’’
After continued bantering between Case and the Union,
the Union questioned Respondent’s position on checkoff.
Case again stated that it was ‘‘a matter of freedom.’’ The
Union argued that the freedom explanation was facetious.
The Union noted that Gilbert Manufacturing in New York
City, a corporation owned by the same parent corporation
that owns Respondent, had checkoff in its current collective-
bargaining agreement. Case did not dispute this fact. Instead,
she simply said she was not bargaining for Gilbert. The
Union again asked that dues checkoff be reinstated. The
Union also made a proposal under which it would have ad-
ministered a group insurance plan. At the same time, the
Union told Respondent it would decrease its proposal for a
wage increase. Lastly, the Union noted that this did not nec-
essarily represent its bottom line.
Respondent rejected the Union’s revised proposal. At the
conclusion of the meeting, the Union stated that it wanted to
see Respondent’s financial report. Case refused to give the
Union the report. The Union responded, ‘‘You said you need
to make more money.’’ Case replied, ‘‘I didn’t say ‘need.’
I said ‘desire.’’’
December 1, 1990, to January 15, 1991: Filing of
Unfair Labor Practice Charge and Exchange
of Correspondence
On December 5, the Union filed the unfair labor practice
charge in Case 11–CA–14169 alleging that Respondent had
failed and refused to bargain and had engaged in surface bar-
gaining.
Also on December 5, Union Stewards and Committee Per-
sons Jeannie Jackson and John Leonard, who would other-
wise had superseniority under the terms of the expired col-
lective-bargaining agreement, were laid off as Respondent
had predicted.
On the following day, December 6, the Union sent Case
a certified letter acknowledging receipt of her faxed letter of
December 5. In that same letter, the Union denied that the
parties had reached impasse.
On December 13, Case again wrote to the Union express-
ing its position that the parties remained at impasse. Case
once again stated that she would consider any offer made by
the Union because the Union might offer a proposal more fa-
vorable to Respondent than Respondent’s own ‘‘last, best
and final offer.’’
Some time prior to January 11, Case was contacted by
NLRB Region 11 Field Examiner Gary Stiffler and informed
that the Regional Director had decided to issue a complaint
in Case 11–CA–14169. Case and Stiffler discussed settle-
ment. According to Case, Stiffler told her that settlement
would require withdrawing the implementation of Respond-
ent’s final offer, reinstatement of the insurance, pension plan,
union-dues checkoff, and superseniority. Stiffler also told
Case that a settlement would require Respondent to reim-
burse employees for any medical expenses incurred after Re-
spondent terminated medical insurance coverage.
On January 11, 1991, Case wrote to the Union:
Until a final decision or resolution of the Union’s
charges with the NLRB is reached, or until the parties
either enter a collective bargaining agreement or reach
impasse, we are withdrawing our implementation of our
last, best and final offer. This means that the contract
still has expired, but the implemented terms are no
longer in effect.
On January 14, Region 11 Field Examiner Stiffler sent
Case a letter attaching a proposed settlement agreement and
‘‘Notice to Employees.’’
6. January 15, 1991: negotiation session 6
On January 15, the parties met again under the auspices
of FMCS. Union Representative Elmer Moyer had been
transferred and, from this meeting on, would no longer rep-
resent the Union in these negotiations. Instead, International
Representatives Lowell Daily and Willis Robinson rep-
resented the Union. Daily admitted that during the prior
meeting the Union had stated it would need time to consult
with actuaries to review the information provided by Re-
spondent in order to make a complete proposal regarding in-
surance. Daily stated that he had not had the opportunity to
review certain documents produced by the Company in re-
sponse to the Union’s request for information until the night
before this meeting. Daily began to ask for additional infor-
mation from Respondent. Case asked whether the documents
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent asserts that all these proposals had been on the table
‘‘in some form’’ since October 23.
that he was now requesting would prevent the Union from
making a complete proposal. Daily responded that he was
ready to negotiate on any issue to be bargained. Case again
asked the Union for a complete proposal. The Union re-
sponded that it did not have to give its proposal in complete
contract form, and that it was ready to detail a possible pro-
posal for offering insurance and pension programs adminis-
tered by the Union.
Case asked Daily to go through the original union pro-
posals item by item in order to clarify the status of those
proposals. Daily accused Case of wanting to reach impasse.
Daily stated he was unfamiliar with the status of all union
proposals because he had not talked to Moyer about each of
them. Case repeatedly asked if Moyer could be contacted im-
mediately by telephone in order to ascertain the Union’s po-
sition. When Daily stated he did not know if he would get
in touch with Moyer, Case continued to press for the Union’s
proposals. Daily said he would ‘‘research’’ them and deter-
mine the content of the Union’s proposals.
Case then told Daily that because Daily could not or
would not describe each of its current proposals, she was
going to give Daily a list of what Case thought were the
Union’s proposals, what were Respondent’s positions on
each of those proposals, and what each of Respondent’s pro-
posals was at the time. During a break, Case prepared a
handwritten document setting forth what she thought was the
status of every proposal made by either side. Case labeled
this ‘‘Company’s Response and Counter-Proposal to Union’s
Proposals.’’ In this same document, Case withdrew Respond-
ent’s proposal to change the ‘‘non-discrimination’’ section of
the contract and its proposal to pay only for time worked in
cases of temporary promotion.
When the break was over, Case gave this document to the
Union. Daily responded that the document was too much to
digest in a brief period of time, and suggested they should
schedule another meeting. Meeting dates were then set aside
for January 22 and 23. However, those meeting dates were
later canceled.
January 16 to February 7: Exchange of Correspondence
Between all Parties and Issuance of Complaint
On January 16, 1991, Case wrote to NLRB Region 11 At-
torney Ron Yost confirming that she and Yost had discussed
settlement. Documents which accompanied Case’s letter
show that a nonadmission clause had been added to the set-
tlement by Case as well as a typed addition to the notice to
employees indicating that Respondent had already restored
the pension plan, reinstated superseniority and reinstated peo-
ple who had superseniority, instituted an insurance plan, and
agreed to make whole employees affected by cancellation of
the insurance plan.
Also on January 16, the same day that Case wrote to
NLRB Region 11, Case wrote to the Union asking for a re-
sponse to her document entitled ‘‘Company’s Proposal and
Counter Proposal to Union’s Proposal.’’ In this letter, Case
provided the Union for the first time specific information re-
garding new insurance coverage which it was placing in ef-
fect rather than reinstating former insurance coverage. Case
informed the Union that coverage would be provided by Lin-
coln National rather than as formerly provided by Metropoli-
tan. The letter also admits and describes certain differences
between the Lincoln National coverage and the Metropolitan
coverage, including a requirement of precertification for all
planned nonemergency hospital admissions. According to
Case’s letter, however, this ‘‘distinction does not in any way
lessen the coverage or have an economic effect.’’
On January 17, Case wrote to the Union enclosing a copy
of an unfair labor practice charge which Respondent was fil-
ing against the Union.
Also on January 17, the Union responded to Case’s letter
of January 16. In this response, the Union objects to Re-
spondent’s alleged failure to bargain in good faith, reiterates
its own position that it is ‘‘willing to bargain on each item,’’
reasserts ‘‘we are not at impasse,’’ and objects to the
changes in insurance coverage between Lincoln National and
Metropolitan. In closing, the Union observed that the pro-
gram description, issued by Lincoln National and faxed to
the Union by Case, ‘‘specifically warns that you may incur
greater-out-of-pocket expenses as a result of the new require-
ment.’’
On January 18, Region 11 issued a complaint against Re-
spondent in Case 11–CA–14169. Also on January 18, Region
11 Agent Ron Yost wrote to Robert Friedman, the Union’s
general counsel. Yost forwarded a copy of the proposed set-
tlement and notice, stating that the settlement represents
‘‘that which could be expected should the alleged . . . viola-
tions be found meritorious before an administrative law
judge of this agency.’’ Yost invited Friedman to submit ob-
jections and supporting arguments within 7 days if the Union
objected to the settlement.
On January 23, 1991, Case wrote to Region 11 asking for
a detailed description of the Board’s case citations and rea-
soning in connection with the complaint which had issued on
January 18. On that same day, Case received a letter from
Daily stating that he had never before seen some of Re-
spondent’s proposals in the document dated January 15.3
On January 25, Union Counsel Friedman wrote to Region
11 acknowledging receipt of the proposed settlement agree-
ment and voicing objection to it in part based on the Union’s
position that Respondent was continuing to violate the Act.
On that same day, Case wrote to Region 11 in support of
Respondent’s unfair labor practice charge against the Union.
7. February 7 and 8, 1991: negotiation sessions 7 and 8
On February 7 and 8, the parties met on their own, with-
out FMCS. The February 7 meeting centered primarily
around Case’s ‘‘Company’s Response and Counter Proposal
to the Union’s Proposal.’’ The Union asked whether Re-
spondent’s last offer was still on the table. Case said that it
was still on the table as described in the January 15 docu-
ment. Using that document, Case also argued that Respond-
ent had made concessions. The Union countered that any
concessions by Respondent were not ‘‘major concessions’’ in
that they did not deal with wages, insurance, pension, check-
off, or superseniority. The Union told Respondent that if it
really wanted to get to serious bargaining, Respondent would
need to make some changes in these areas. The Union also
raised the fact that the change from Metropolitan to Lincoln
National contained changes in coverage as well. Respondent
did not directly answer either of these two points, but the
meeting ended by the Union stating that it would put to-
1327LARSDALE, INC.
gether another proposal that evening for discussion the fol-
lowing day.
On February 8, the Union presented a proposal which was
‘‘conditional on the grounds that the Company is willing to
make major concessions.’’ After a break for Respondent to
examine the proposal, Case focused discussion on the state-
ment that the proposal was ‘‘conditional.’’ Case first asked
if all the proposals were conditional. When the Union re-
sponded that those marked conditional are conditional, Case
asked if the proposal was conditional on ‘‘major conces-
sions’’ in every one of the five major areas. Daily responded
for the Union, saying:
We didn’t say that. We will have to find out what you
are willing to do before we answer that question. If you
say that we already have your first and final offer, then
we’ll go back to our first offer. We want meaningful
offers on those items.
Case, however, was not satisfied. Rather than attempt to dis-
cuss or negotiate over substantive issues, Case continued to
focus on what ‘‘conditional’’ meant. Finally, Daily accused
Case of ‘‘trying to create another situation.’’ Later, after an-
other break, Daily said that the Union might be willing to
make even more concessions on some other items, that this
was not the Union’s ‘‘final final offer.’’ There is no indica-
tion that Respondent offered any concessions at either the
February 7 or 8 meetings.
8. February 13, 1991: negotiation session 9
On February 13, the parties met again. At this meeting,
Respondent presented a counterproposal to the Union. Most
of this bargaining session was spent describing and explain-
ing this counterproposal.
In the February 13 counterproposal, Respondent proposed
revocable union-dues checkoff, to be deducted only when the
employee received a paycheck. The prior agreement author-
ized accruing debt for checkoff when an employee was not
receiving a paycheck, such as during a layoff. Respondent
withdrew its proposal to give only unpaid time off for union
grievance committeemen in the settlement of grievances. Re-
spondent proposed to ‘‘grandfather’’ existing employees
from the extended probationary period in its earlier pro-
posals. Respondent also proposed to ‘‘grandfather’’ existing
employees from its proposal to terminate seniority for layoffs
where length of service is less than 12 months. Respondent
proposed superseniority for two individuals and modified its
proposal that seniority not be a factor in shift assignment.
The Union asked about the grievance-and-arbitration proce-
dure, and Case said Respondent was proposing, or agreeing,
that it remain as it was in the expired agreement.
It appears that Respondent’s concession on the inclusion
of arbitration was the only item on which agreement was
reached at the February 13 meeting.
9. March 6 and 7, 1991: negotiation sessions 10 and 11
On March 6 and 7, the parties again met under the aus-
pices of FMCS. The meeting on March 6 was apparently
rather brief. The Union told Respondent that it would not
present a counterproposal to Respondent’s February 13 pro-
posal because Respondent was not showing enough move-
ment in the five major issues. The Union said it wanted more
movement from Respondent. Case replied that she would not
bid against herself, that she had made a proposal and she
wanted a union counterproposal. Daily does not deny Case’s
version that he responded to her by saying the Union would
‘‘find a way to change a period somewhere if that is what
you want.’’ Case told the mediator to tell the Union that Re-
spondent wanted a proposal. The Union said it would prepare
a proposal for the next day, and the meeting apparently
ended on that note.
On March 7, the Union presented a new proposal empha-
sizing the ‘‘five major issues’’ of wages, insurance, pension,
union-dues checkoff, and superseniority. This proposal stated
in part:
We are not making absolute demands and would have
further concessions to discuss if the other five (major)
points . . . were settled in a mutually agreed fashion.
This should not be considered a final final offer by the
Union. We are willing to negotiate in good faith on our
proposal and we will be flexible.
On the last page of the Union’s proposal, the Union again
stated, ‘‘We are also flexible once the Company begins to
move on the major issues.’’
At this same meeting, Respondent presented another coun-
terproposal. Respondent agreed, as it had earlier, to keep the
arbitration procedure, but continued to propose elimination of
insurance and freezing of its pension program. The proposal
also accepted the Union’s specific language about the proba-
tionary period, withdrew Respondent’s proposal to add lan-
guage that ‘‘ability and skill would be determined in the sole
discretion of the Company;’’ and proposed to add two more
union stewards with superseniority if Respondent were to
start a third production shift.
Near the conclusion of the March 7 meeting, the Union
notified Respondent that it would be unable to meet on
March 12 and 13 as had been tentatively scheduled. The
Union told Respondent that it would be unable to meet so
that it could comply with an NLRB request for information.
Case asserted that this was just a dilatory tactic on the part
of the Union. On the following day, March 8, Case faxed
Stiffler a letter objecting to the Union’s refusal to meet, and
included with it a second unfair labor practice charge by Re-
spondent against the Union.
March 8 to April 8, 1991: Exchange of Correspondence
On March 12, 1991, Respondent wrote to the Union and
the Union wrote to Respondent, the letters apparently cross-
ing in the mail. In Respondent’s letter to the Union, Case
agreed to meet on April 9 and 10 as the Union was request-
ing. Case also asked for earlier dates for meetings and stated
that there was really no deadline which would have prohib-
ited the Union from meeting on March 12 and 13 as had
originally been scheduled.
In the Union’s letter to Respondent, Daily informed Case
that Respondent’s proposal of March 7 had been taken to the
union membership on March 10 and had been rejected. Daily
confirmed his availability for meetings on April 9 and 10 and
asked that meetings be held in the evening to avoid lost time
for employee members of the negotiating committee. Finally,
Daily requested proof that the insurance and pension con-
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tributions were actually being paid and that Respondent had
actually reinstated benefits which had been earlier cut.
In a letter dated March 15, 1991, Case replied to Daily’s
request for evening meetings. Case stated that the Union
committee people had never before expressed any concern
about missing work. Case also stated that daytime meetings
would serve to have everyone present when they were most
efficient, and declined meeting in the evening. Finally, Case
stated she would supply the proofs of payment requested by
Daily in his March 12 letter.
On March 22, 1991, Case received a letter from NLRB
Region 11 Field Examiner Stiffler with an attached list de-
scribing differences which the Union noted between the Met-
ropolitan insurance coverage and the Lincoln National cov-
erage. Stiffler also asked for information regarding what dis-
cussions, if any, had taken place between Respondent and the
Union concerning changes in benefits and any proof which
existed that Respondent had reinstated various benefits ear-
lier withdrawn. The letter states that the information ‘‘is re-
quested in order to determine only the level of reinstatement
of benefits for settlement purposes of the above styled case.’’
On April 5, 1991, Case wrote to Stiffler setting forth Re-
spondent’s position on the differences between Metropolitan
insurance coverage and that provided by Lincoln National.
Case also supplied existing proof that other unilateral
changes had been restored. Case’s letter also stated that Re-
spondent was willing to sign a NLRB notice telling employ-
ees that Respondent would not increase benefits without first
discussing the increase with the Union. Finally, Respondent
took the position that if any employee were to have treatment
under the ‘‘mental illness, substance abuse and alcoholism’’
provision of insurance provided by Lincoln National and
could thereafter prove that he had suffered a monetary loss
as between Lincoln National coverage and Metropolitan cov-
erage, Respondent would pay the difference.
10. April 9 and 10, 1991: negotiation sessions
12 and 13
On April 9 and 10, the parties again met with the Federal
mediator present. On April 9, there was little, if any, sub-
stantive negotiation. The meeting was spent discussing to
what extent Respondent had reinstated the status quo in its
effort to settle the outstanding unfair labor practice complaint
and whatever proof Respondent had of the actions it claimed
to have taken. Respondent also provided the Union with var-
ious requested information.
On April 10, the Union presented Respondent with a pro-
posal for a 40-cent-per-hour wage increase each year for 3
years of the contract; for Respondent to provide insurance ei-
ther through a union-administered plan or by restoring insur-
ance as it existed in the expired agreement; and for Respond-
ent to restore the pension program and increase annual retire-
ment payments. In addition, the Union withdrew some pro-
posals dependent on the Company ‘‘beginning to move on
the five major issues.’’
Respondent responded by presenting another ‘‘last, best
and final offer.’’ In this, Respondent proposed restoration of
checkoff and superseniority as they had existed in the ex-
pired contract; no wage increase except that employees
would progress from the minimum wage rate to the max-
imum rate for each job in 10-cent-per-hour increments rather
than 5-cent-per-hour increments; and health insurance
through Lincoln National Life only if employees paid the en-
tire premium. Respondent still called for elimination/freezing
of the pension program.
The Union responded by noting that if employees paid for
health insurance entirely themselves, their hourly wages
would effectively fall below the minimum wage. Case re-
plied, ‘‘You have our final offer.’’
The Union stated that it would take Respondent’s proposal
to the membership that coming weekend, on April 14.
On April 12, Case sent a letter to the local union con-
firming its ‘‘last, best and final offer’’ in writing. The mem-
bership met as scheduled, and rejected this proposal.
Late April 1991: Further Exchange of Correspondence
On April 22, 1991, Case sent a letter to Region 11 Agent
Stiffler concerning settlement of the outstanding unfair labor
practice complaint. In this letter, Case offered as part of a
settlement that any employee who could prove any loss of
money under the Lincoln National coverage as compared to
Metropolitan coverage would be reimbursed for the dif-
ference. It is undisputed that at that point Respondent had at
least temporarily reinstated the pension program. In its ‘‘last,
best and final offer’’ Respondent had still continued the de-
mand that the pension program terminate/freeze. The Com-
pany had reinstated insurance coverage, although under a dif-
ferent carrier and with different terms. Respondent had also
advanced different language for the settlement agreement and
notice to employees than that originally proposed by Region
11. Nevertheless, Case’s April 22 letter advanced the notion
that it was her ‘‘understanding that the case can now be uni-
laterally settled.’’
On the following day, April 23, Stiffler faxed a letter to
Case with an attached settlement agreement and notice to
employees. Case signed the settlement documents and faxed
them back to Stiffler that same day.
On April 24, Stiffler sent a letter to Daily, enclosing a
copy of the settlement agreement and notice to employees.
Stiffler invited Daily to sign the settlement.
11. April 25 and 26, 1991: negotiation sessions
14 and 15
On April 25 and 26, the parties again met in conjunction
with an FMCS mediator. At the April 25 meeting, neither
party presented any new proposals, and no concessions were
made or tentative agreements reached. The Union notified
Respondent that it would not enter into a settlement of the
unfair labor practices charges as proposed by Stiffler.
At the meeting on April 26, the Union presented a coun-
terproposal. Like the one before it, the Union’s proposal stat-
ed that its flexibility would depend on Respondent’s ‘‘begin-
ning to move on the remaining major issues.’’ To this pro-
posal, however, Respondent replied, ‘‘You’ve got our final
offer.’’
Events from April 30 to June 1, 1991
On April 30, counsel for the Union wrote to Region 11
objecting to the proposed settlement of the outstanding unfair
labor practice complaint. In part, the letter objected to the
settlement because of the required employee proof of loss as
between Lincoln National and Metropolitan insurance cov-
1329LARSDALE, INC.
4 Obviously a third possibility exists in cases such as these, where
an employer simply engages in hard bargaining, trying to get an
agreement most favorable to it but trying nevertheless to reach an
agreement with the Union who represents its employees.
erage. The letter also stated that there was no proof Respond-
ent had made the pension and insurance payments.
On May 2, Case and law partner Robert Valois drove from
Raleigh to Winston-Salem, North Carolina, to meet with
Field Examiner Stiffler, Trial Attorney Don Gattalaro, and
Regional Attorney Ron Morgan for the purpose of attempting
to finalize a unilateral settlement. During that meeting, Re-
spondent was notified that the Union was raising additional
unfair labor practice allegations which would have to be in-
vestigated before any unilateral settlement could be finalized.
Certain exclusionary language was added to the existing pro-
posed settlement agreement stating that it did not cover po-
tential allegations raised in the new unfair labor practice
charge ‘‘or any allegations of bad faith bargaining since Jan-
uary 15, 1991.’’ This added language was initialed by Re-
spondent’s counsel. According to Respondent, they were then
told by Stiffler and Morgan that the Regional Director would
sign the unilateral settlement either that day or the following
day.
On May 3, 1991, the Union faxed a letter to Region 11
enclosing a new unfair labor practice charge, docketed on
May 6 as Case 11–CA–14401. On Monday, May 6, Region
11 notified Respondent that the Regional Director would not
be approving or signing the unilateral settlement because the
Union had filed this new unfair labor practice charge.
On May 6, 1991, the Union wrote to Respondent officially
notifying it of Respondent’s ‘‘last, best and final offer’’ hav-
ing been rejected by the union membership. The letter re-
quested additional bargaining. Case faxed an immediate reply
to the Union, stating:
We hereby notify you that the Company will implement
its last offer on June 1, 1991. . . . As set forth in the
offer, each employee will be responsible in May, 1991,
for paying to the Company his or her entire June pre-
mium in advance. The employees will bear the risk set
forth in the Company’s offer, one of which is the risk
that the group will fall below the minimum number re-
quired by the insurance company for minimum group
coverage.
On May 8, Respondent posted a notice to employees noti-
fying them that the pension program would be frozen; that
it would be up to them individually to begin paying a pre-
mium for group insurance coverage; and that Respondent
would cease paying premiums for group insurance coverage
on June 1.
On May 9, Case wrote to the Union stating in part, ‘‘The
offer rejected by the membership was, indeed, the Com-
pany’s last offer. I do not understand your mission in meet-
ing again.’’ Respondent, however, did agree to met.
12. June 5, 1991: the final session
The parties met one last time on June 5, 1991. Nothing
was resolved.
B. Analysis and Conclusions
Counsel for the General Counsel argues that throughout
negotiations, Respondent negotiated in bad faith and with no
intention of entering into a final or binding collective-bar-
gaining agreement with the Union, that Respondent dealt di-
rectly with its employees by posting various notices to them
during negotiations, and that Respondent unilaterally and un-
lawfully implemented its contract proposals following an un-
lawfully declared impasse in negotiations. Counsel for the
General Counsel also argues that subsequent to December 5,
1990, the date of the first unfair labor practice charge in the
instant matter, Respondent tailored its proposals and tactics
to create a facade of good-faith bargaining.
The Union argues that Respondent tailored its proposals
with a predesigned effort to frustrate agreement, that Re-
spondent violated the Act by unilaterally implementing its
proposals in the absence of a bargaining impasse; and that
the presence of uncured unfair labor practices prevented a
valid impasse from being reached after November 19, 1990.
Counsel for the General Counsel and the Union both point
out substantial similarities between this case and the Board
decision in America Meat Packing Corp., 301 NLRB 835
(1991).
Respondent argues simply that it has ‘‘prevailed in a con-
test of economic strength.’’ Respondent’s posthearing brief
most succinctly states its position as follows:
In this case, it must be noted that the relative eco-
nomic strength of the parties was displayed as the nego-
tiating process progressed, and as was true in prior
years. The Union has never engaged in a strike. Even
as the membership rejected the employer’s contract pro-
posal, the employees themselves repeatedly voted not to
strike. Moreover, in the prior contract negotiations be-
tween the parties, the Union agreed to a number of sig-
nificant concessions, including a wage cut for the larg-
est group of employees.
The one party—in this case the Union—who loses a
contest of economic strength will inevitably regard the
other party’s position as ‘‘too drastic’’ or ‘‘too far-
reaching’’ or ‘‘regressive’’ instead of recognizing eco-
nomic reality.
Respondent argues that it simply engaged in hard bargaining,
and won!
Cases of this kind are never easy, particularly where, as
here, the parties have had a long history of collective-bar-
gaining. From the outset, it is important to keep in mind the
distinction between surface bargaining and bad-faith bar-
gaining. In these types of cases involving employers ‘‘sur-
face bargaining’’ is a term used by the Board and the courts
where the employer is actually trying to avoid reaching any
agreement with the Union, simply going through the motions
of bargaining. ‘‘Bad-faith bargaining,’’ on the other hand, is
the term normally used where an employer is bargaining
from a fixed position with a closed mind, often trying to
push to impasse as soon as possible to institute a final offer.4
The facts in this case do not support a conclusion that Re-
spondent was engaged in surface bargaining, carrying out a
preconceived plan to avoid reaching agreement with the
Union. On the other hand, the facts here, discussed in greater
detail below, reveal very clearly that Respondent simply did
not care whether it ever reached agreement with the Union,
that Respondent had its own preconceived fixed agenda to
1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eliminate health insurance and pension expenses, not because
of any need but simply, as Respondent’s own counsel stated,
out of ‘‘desire.’’ As a result of this preconceived agenda,
which it knew the Union would not agree to, Respondent
hurried as fast as possible to achieve ‘‘impasse’’ in order to
implement its agenda, bypassing altogether any meaningful
attempt at bargaining. For the reasons more fully explained
below, I find that throughout negotiations Respondent has
bargained with the Union in bad faith.
Respondent’s original proposal to the Union on October
16 not only called for the elimination of union dues check-
off, elimination of paid grievance processing time for union
stewards, elimination of superseniority for union officials,
elimination of future pension benefits, and elimination of
group insurance benefits, Respondent’s proposal also de-
manded in effect that the Union waive its statutory right to
represent employees in several important respects. Respond-
ent did not simply demand elimination of arbitration; it de-
manded language providing that ‘‘the decision of the [Com-
pany’s] Industrial Relation Representative shall be final and
binding.’’ At the same time, Respondent demanded a no-
strike clause. To place the final decision on grievances in the
hands of an employer representative although at the same
time insisting on a no-strike clause is so predicably unaccept-
able to any union as to be laughable. Respondent went even
further in demanding that the Union give up its right to rep-
resent employees.
Concerning job posting and bidding, Respondent proposed
that jobs be awarded on the basis of ability and skill, but that
ability and skill ‘‘be determined in the sole discretion of the
Company.’’ Respondent did not stop there. It even proposed
eliminating the Union’s ability to challenge a pay rate estab-
lished by Respondent in a new or changed job.
Respondent relies on I. Bahcall Industries, 287 NLRB
1257 (1988), in which the Board adopted without comment
the decision of an administrative law judge in which he stat-
ed that original contract proposals, no matter how repugnant
they are to the other side, cannot be unfair labor practices
in themselves. The principle of Bahcall, however, is far more
narrow than Respondent would suggest. It is simply that ini-
tial contract proposals cannot normally be unfair labor prac-
tices in themselves. It does not, however, stand for the prop-
osition that such proposals cannot be reviewed for the pur-
pose of determining one’s intent in bargaining. Not long after
the Bahcall Industries case, the Board issued its decision in
Reichhold Chemicals, 288 NLRB 69 (1988), approving lan-
guage from NLRB v. Mar-Len Cabinets, 659 F.2d 995
(1981), stating:
Proposal content supports an inference of intent to frus-
trate agreement when, as here, the entire spectrum of
proposals put forward by a party is so consistently and
predictably unpalatable to the other party that the pro-
poser should know agreement is impossible.
Thus, it is clear that although initial proposals may not be
unfair labor practices in themselves, the content of such pro-
posals can and should be considered in determining whether
a party is intending to frustrate agreement, force impasse, or
otherwise bargain in bad faith. See American Meat Packing
Corp., supra, 301 NLRB 835. Considering the content of Re-
spondent’s initial proposal to the Union here, there could not
possibly have been any doubt in Respondent’s mind that
many parts of it would be predictably unacceptable to the
Union.
The second bargaining session, held on October 23, began
by Attorney Margie Case, Respondent’s primary spokes-
person, giving back the Union a copy of its own initial pro-
posal with various sections highlighted. At the first meeting,
the Union accused Respondent of trying to turn the clock
back to 1940 with its initial regressive proposal. At this sec-
ond meeting, Case told the Union that the purpose of the
highlighting was to show that it was the Union who was try-
ing to turn the clock back. Case does not deny, however, that
when the Union agreed to the 1987–1990 collective-bar-
gaining agreement containing many concessions, Respondent
told the Union that the Company would agree to restore
these concessions if it continued to operate and prosper.
Case’s use of the highlighted contract proposal is a tactic
which repeats itself not only throughout these negotiations,
but throughout this unfair labor practice litigation. Respond-
ent has consistently and repeatedly tried to keep the spotlight
off itself first by pointing to actions of the Union during ne-
gotiations and later by pointing to a proposed settlement
agreement allegedly negotiated with, and supposedly
breached by, Region 11 of the Board. The time has come,
however, for the spotlight to shine exactly where it be-
longs—on Respondent’s unabashed greed and its resulting
rush to impasse. At the October 23 bargaining session, Case
explained Respondent’s demand to eliminate health insurance
and pension expenses by simply stating, ‘‘A prudent man in
times like these wants to make more money. We want to bat-
ten down the hatches. We want to decrease expenses so we
can make more money in the face of financial forecast.’’
When, at the meeting on December 4, the Union suggested
that Respondent had said it wanted to eliminate pensions and
insurance because it needed to make more money, Case un-
abashedly replied, ‘‘I didn’t say ‘need’ I said ‘desire.’’’
That Respondent intended from the outset to rush to im-
passe is shown not only by its original proposal in which it
demands elimination of numerous benefits and it demands
that the Union waive its right to represent employees in sev-
eral respects, but also by discussions during early negotiation
sessions concerning union-dues checkoff and arbitration. At
the October 23 meeting, the Union challenged Case to ex-
plain why Respondent proposed to eliminate dues checkoff.
Case replied that it was an issue of employee ‘‘freedom.’’
One cannot overlook the fact, however, that North Carolina
is a right-to-work State and that employees already have
complete freedom to choose whether to be, or remain, union
members. At the third bargaining session held on November
1, when Case was again challenged to explain Respondent’s
demand concerning checkoff, Case said it was not only a
matter of ‘‘freedom’’ but that a cost factor was also in-
volved. When the Union countered by requesting information
concerning the cost of providing dues-checkoff services, and
these services were shown to be approximately $6 per year,
Case later denied that cost was in any way a factor in Re-
spondent’s demand. Moreover, Respondent’s stated concern
about ‘‘freedom’’ as justification for eliminating union-dues
checkoff was clearly a pretext. Dues checkoff had been in
the collective-bargaining agreement for years. There is no
reason to belive that Respondent suddenly became imbued
with new-found ethics. This is particularly true since the
1331LARSDALE, INC.
owners of Respondent also own Gilbert Manufacturing Com-
pany, located in New York State, whose collective-bar-
gaining agreement includes both union-security and dues-
checkoff provisions.
Respondent’s bad faith is also revealed by Case’s other ac-
tions at the third bargaining session held on November 1.
The third session began by Respondent stating that it had
permanently laid off three management employees, a claim
Respondent was making in order to counter the Union’s as-
sertion that only employees had to bear the brunt of Re-
spondent’s various cutbacks. On further analysis, however,
one sees that at least two, if not all three, management em-
ployees allegedly laid off were in fact eligible to draw retire-
ment. At best, Respondent was simply blowing smoke at the
Union; at worst it was outright lying. In either case, it was
clearly attempting to deceive the Union.
Two other exchanges at the November 1 meeting are re-
vealing of Respondent’s desire to reach a quick impasse.
Both involve discussions centered around Respondent’s de-
mand to eliminate arbitration. In the first exchange, Case ac-
tually stuck by Respondent’s demand that a decision of a
company representative be final and binding. Case tried to
justify that demand by pointing out that the parties had a
good record for settling grievances and arguing that arbitra-
tion was therefore unnecessary. When that line of ‘‘logic’’
failed, Case asked if the Union would accept all Respond-
ent’s other proposals if Respondent would simply agree to
rescind its elimination of arbitration. By doing so, Respond-
ent was still insisting not only that union-dues checkoff,
health insurance, and pensions all be eliminated, but it was
also continuing to insist that it be allowed to award jobs on
factors ‘‘determined in the sole discretion of the Company’’
and that the Union give up any right to challenge any pay
rate established by Respondent in a new or changed job. Re-
spondent was continuing to insist that the Union waive statu-
tory rights to represent employees in return for not elimi-
nating arbitration as it had existed in prior agreements. Al-
though Case made a point of wanting to go on record as hav-
ing made this proposal, there can be little question that Re-
spondent knew full well that it would be unpalatable to the
Union.
In order to create the impasse Respondent so clearly de-
sired, Case cleverly waited until the end of the meeting to
play her ‘‘wild-card.’’ The Union had already stated it was
going to file unfair labor practice charges with the Board
concerning Respondent’s demand to eliminate arbitration
while maintaining the no-strike clause in the expired con-
tract. At the close of the meeting on November 1, Case then
asked the Union if they wanted to set another meeting date.
The Union, who was not being represented by counsel in
these negotiations, foolishly refused to schedule another
meeting date, stating it would ‘‘prefer’’ to wait clarification
from the Board. Case, an experienced labor lawyer, had not
only been able to engineer something she could call an ‘‘im-
passe,’’ but one that she was able to blame on the Union.
That is precisely what Case did in her letter to the Union
dated November 2. Respondent then seized on that oppor-
tunity to state, ‘‘At the expiration of the current contract, the
Company will implement its offer which is now on the
table.’’
In response to Respondent’s November 2 letter, the Union
contacted FMCS and asked that it try to arrange another bar-
gaining session. FMCS did so and a meeting date was ar-
ranged. Obviously Respondent knew that it had not contacted
FMCS, and therefore had every reason to believe the Union
had done so. Respondent’s letter of November 14 neverthe-
less stated, ‘‘We have still heard nothing from the Union
concerning its refusal to meet which is causing the impasse
at which the parties now find themselves. Commissioner
Bradley from FMCS has contacted us with a request that we
meet . . . .’’ Case’s phraseology evidences that she was not
interested in real substantive negotiation, but was totally con-
sumed with gamesmanship. Case’s November 14 letter con-
tinued by stating, ‘‘The Company still plans to implement its
proposal at the expiration of the present contract with two
exceptions which constitute changes from its last position.’’
To declare in the same sentence that Respondent still planned
to implement its proposal although announcing modifications
for the first time reveals with certainty both that the parties
were not at impasse and that Respondent had no intention of
bargaining about its modifications. Respondent was in effect
announcing a fait accompli.
Any lingering doubt that implementation of Respondent’s
proposal was a fait accompli is eliminated by its actions dur-
ing the meeting on November 19. At that meeting, the Union
proposed concessions if Respondent would agree to leave ar-
bitration as it was in the existing contract. Part of the
Union’s proposal included its agreement to Respondent’s
proposal to eliminate the ‘‘successor clause’’ and its agree-
ment to Respondent’s proposal to terminate seniority after a
layoff of 12 months or the employee’s length of service,
whichever is less. In conjunction with this proposal, the
Union proposed extending the existing contract on a day-to-
day basis while the Union analyzed insurance information it
had just been given by Respondent in order to give the
Union time to formulate a response. Respondent responded
by noting that the contract expired at midnight that night and
asked if an analysis of the information provided concerning
pensions and insurance would permit the Union to agree to
Respondent’s proposal eliminating them. This response clear-
ly reveals a predesigned fixed position to eliminate both in-
surance and pension. Respondent stated then that it was pre-
pared to give the Union its ‘‘last, best and final offer.’’
Respondent’s ‘‘final offer’’ was a reiteration of its original
proposal with modifications to drop its proposal to remove
successorship language which from the contract, to drop its
proposal eliminating arbitration, to eliminate pension at the
end of the month rather than immediately, and to eliminate
insurance at the end of the year rather than immediately. Re-
spondents dropping its proposal to remove successorship lan-
guage from the contract shows it was not really listening to
the Union only moments before when the Union agreed to
eliminate successorship language from the contract. That Re-
spondent was rushing to impasse and that its final offer was
a fait accompli is clearly shown by the fact that Respondent
announced it would implement its final offer at midnight that
very night. Equally revealing is the fact that Valois, Case’s
cocounsel, announced Respondent’s intention to implement
that final offer even before Case read the offer aloud.
I find that when Respondent implemented its ‘‘final offer’’
at midnight November 19, 1990, it did so without there being
a true impasse with the Union and, further, after a course of
bad-faith bargaining. Respondent’s course of bad-faith bar-
gaining continued throughout December 1990, and I agree
1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I agree with the Union’s argument that by unilaterally instituting
a new and different insurance carrier with new and different terms,
Respondent was not only failing to restore the status quo, but was
actually using settlement discussions with Region 11 as a smoke-
screen for additional unilateral changes which were never negotiated
with the Union.
with counsel for the General Counsel that after Region 11
announced it was issuing a complaint against Respondent,
Respondent tailored its proposals and tactics to create a fa-
cade of good-faith bargaining.
The parties held only their fifth meeting on December 4,
1990. At that meeting, the Union stated that it had formu-
lated a contract proposal regarding insurance which it was
prepared to discuss. Case responded by asking the Union for
a ‘‘complete proposal.’’ When the Union in turn asked Case
if she had the authority to change Respondent’s offer, Case
stated only that she had the authority to consider a proposal
from the Union, adding that she would consider a ‘‘complete
proposal.’’ Respondent’s attitude throughout bargaining is re-
vealed by Case’s added comment, ‘‘Maybe it will be better;
maybe you will offer that the Union pay for insurance and
take a $2 per hour wage cut—how do I know? I will look
at a complete proposal.’’ This same attitude is reflected in
Case’s December 13 letter to the Union in which she once
again stated Respondent would consider any offer made by
the Union only because the Union might offer a proposal
more favorable to Respondent then Respondent’s own ‘‘last,
best and final offer.’’
After Respondent had been notified a complaint and notice
of hearing would issue, Case wrote to the Union on January
11, stating, ‘‘Until a final decision or resolution of the
Union’s charges with the NLRB is reached, or until the par-
ties either enter a collective-bargaining agreement or reach
impasse, we are withdrawing our implementation of our last,
best and final offer.’’ Immediately thereafter, however, Case
renewed Respondent’s push to achieve impasse.
At the bargaining session on January 15, Moyer no longer
represented the Union. When Daily and Robinson, who
would represent the Union from that point on, stated they
would need more time to make a complete proposal regard-
ing insurance, Case pushed the Union to try to discuss the
status of each and every proposal then on the bargaining
table. When Daily and Robinson indicated they were not pre-
pared to do that, Case insisted on preparing her own sum-
mary of each and every proposal, including both Respond-
ent’s position and what she thought was the Union’s posi-
tion. On the very next day, January 16, Case wrote to the
Union asking for a response to her document, which she had
titled, ‘‘Company’s Proposal and Counter Proposal to
Union’s Proposal.’’ Also on January 16, Case wrote to
NLRB Region 11 claiming, as a part of Respondent’s effort
to settle the outstanding unfair labor practice complaint, that
Respondent had already restored the pension plan, reinstated
superseniority, and restored the insurance plan. On that same
date, in its letter to the Union, Case admitted there were dif-
ferences between the prior insurance plan and that which Re-
spondent was instituting. Although Case claimed in the letter
to the Union that this ‘‘distinction does not in any way les-
son the coverage or have an economic effect,’’ the Union
discovered, quite correctly, that even the program description
issued by the new insurance carrier, Lincoln National, spe-
cifically warned that ‘‘you may incur greater out-of-pocket
expenses’’ as a result of requirements not imposed by Metro-
politan, the previous carrier.5
Respondent’s preoccupation with appearance rather than
substance is reflected again by its actions at the negotiation
session on February 8, 1991. At that meeting, the Union pre-
sented a proposal which stated that it was ‘‘conditional on
the grounds that the Company is willing to make major con-
cessions.’’ Having examined the proposal, Case repeatedly
focused discussion on the statement that the proposal was
‘‘conditional.’’ Case first asked if all the proposals were con-
ditional. She then asked if the proposal was conditional on
‘‘major concessions’’ in every one of the five major areas.
When the Union responded, ‘‘We didn’t say that . . . we
want meaningful offers on those items,’’ Case was still not
satisfied. Rather than attempt to discuss or negotiate over
substantive issues, Case continued to focus on what ‘‘condi-
tional’’ meant.
It was not until the meeting on February 13, 1991, that
any meaningful bargaining took place. In a counterproposal
presented at that meeting, Respondent proposed revocable
union-dues checkoff, to be deducted only when the employee
received a paycheck. Respondent withdrew its proposal to
give only unpaid time off for union grievance committeemen
in the settlement of grievances. Respondent proposed to
‘‘grandfather’’ existing employees from the extended proba-
tionary period in its earlier proposals and from its proposal
to terminate seniority for layoffs where length of service is
less than 12 months. Respondent proposed superseniority for
two individuals and modified its proposal that seniority not
be a factor in shift assignments. Respondent also proposed,
or agreed, that the grievance-and-arbitration procedure re-
main as it was in the expired agreement. Although this coun-
terproposal for the first time reflected some movement and
some genuine effort by Respondent to fashion proposals in
a way which might resolve issues to the satisfaction of both
Respondent and the Union, it must also be noted that Re-
spondent’s counterproposal still reflected no movement on
major economic issues such as wages, or the elimination of
health insurance and pensions.
The meeting of March 7 represented only the second real
attempt at significant substantive bargaining. At that meeting,
the Union presented a new proposal emphasizing the five
major issues of wages, insurance, pensions, union dues
checkoff, and superseniority. In response to this, Respondent
presented another counterproposal agreeing to keep the arbi-
tration procedure, accepting the Union’s specific language
about the probationary period, proposing to add two more
union stewards with superseniority if Respondent were to
start a third production shift, and significantly for the first
time withdrawing Respondent’s proposal that ‘‘ability and
skill’’ for job-bidding purposes be determined ‘‘in the sole
discretion of the Company.’’ At the same time, Respondent
offered no hint of any concession on wages, or the elimi-
nation of insurance or pensions.
At the negotiation session on April 10, Respondent pre-
sented the Union with another ‘‘last, best and final offer.’’
For the first time, Respondent proposed restoration of union-
dues checkoff and superseniority as they had existed in the
expired contract. It continued to propose a wage freeze and
the elimination of pension benefits. Respondent proposed
1333LARSDALE, INC.
health insurance through Lincoln National, but only if em-
ployees paid the entire premium. When the Union responded
by noting that if employees paid for health insurance entirely
themselves, their hourly wages would effectively fall below
the minimum wage. Case replied, ‘‘You have our final
offer.’’ Indeed, Case’s final offer of April 10 reflects clearly
that Respondent was bargaining from the very beginning
from a fixed position on freezing wages and eliminating
health insurance and pensions. It also shows that although
Respondent had earlier attempted to bargain to impasse on
eliminating union dues checkoff and superseniority, Respond-
ent was actually willing to move in these areas. It shows that
Respondent had earlier insisted on eliminating these provi-
sions primarily to frustrate agreement, establish an impasse,
and institute its final offer.
Finally, I reject Respondent’s claim that it ever negotiated
any settlement of any of the issues before me with Region
11, or that the General Counsel should be estopped from liti-
gating the instant case. Respondent’s January 11 letter to the
Union stated that it was withdrawing implementation of its
‘‘last, best and final offer . . . until a final decision or reso-
lution of the Union’s charges with the NLRB is reached.’’
Thus, it is clear Respondent knew as of January 11 there was
no settlement. Case’s letter of February 27 to Region 11
again refers to the ‘‘possibility of settlement.’’ Apparently
Valois and Case claim that it was during their trip to Region
11 on May 2 that a settlement was completed. Case and Va-
lois both testified that during discussions with the Regional
attorney, they were specifically assured that the Regional Di-
rector would sign a unilateral settlement the following day.
Even assuming this is true, it is clear that no settlement was
finalized.
Section 101.9 of the Board’s Rules and Regulations clearly
sets forth the procedure involved in approving unilateral set-
tlements. That section specifically provides the charging
party not only an opportunity to object to such a unilateral
settlement, but also an opportunity to appeal such a settle-
ment to the General Counsel. Section 101.9(c)(3) provides:
If the settlement agreement approved by the Regional
Director is an informal one, providing for the with-
drawal of a complaint, the charging party may appeal
the Regional Director’s action to the General Counsel,
as provided in Section 102.19 of the Board’s Rules and
Regulations.
Case is an experienced labor lawyer. Yet when I asked her
about her familiarity with unilateral settlements, she denied
any familiarity with this section of the Rules and Regula-
tions. I found Case totally incredible on this issue. Robert
Valois, her cocounsel, at least had the grace to admit he
knew the Union had the right to file objections, while pro-
fessing no knowledge of what the Regional Director would
do if such objections were found to be meritorious. Valois
started his career as a field examiner with the Board. After
working for the Board a number of years and obtaining his
law degree, Valois entered the private practice of law, where
he has specialized in labor law. I find it simply incredible
not only one, but two experienced labor lawyers from the
same firm claim to be unfamiliar with a charging party’s ap-
peal rights in cases of unilateral settlements. Whether they
are actually so ill prepared as to be unfamiliar with this sec-
tion of the Board’s Rules and Regulations, however, is sim-
ply not the issue. The Board’s Rules and Regulations in this
area have been in effect for years. Counsel is at least charged
with constructive notice of the Board’s Rules and Regula-
tions. The fact is that Respondent’s counsel and Region 11
personnel discussed the possibility of a unilateral settlement.
But when the Union stated its objection to the proposed set-
tlement, as provided for in the Board’s Rules and Regula-
tions, and filed an additional unfair labor practice charge, the
Regional Director decided not to approve the unilateral set-
tlement. Even if he had done so, however, the Union could
have appealed that action to the General Counsel. If the Gen-
eral Counsel sustained that appeal, approval of the unilateral
settlement by the Regional Director would be null and void.
Therefore, even assuming that Region 11 employees pre-
dicted or represented to Case and Valois in the meeting on
May 2 that the Regional Director would sign the unilateral
settlement, Case and Valois had no right to rely on such a
prediction or representation as in any way finalizing a settle-
ment. Moreover, I note that in fact Respondent never posted
the notice to employees which was to be a part of that settle-
ment, nor ever took any other action to provide employees
with assurances, either verbally or in writing, that Respond-
ent would remedy earlier unfair labor practices. Respondent’s
claim that a settlement was consummated in this matter or
that the General Counsel should in some way be estopped
from litigating this matter is an argument based on incredible
representations from Respondent’s own counsel and is utterly
without legal foundation whatever. It is in actuality simply
one more attempt by Respondent to keep the spotlight off
itself by focusing it instead on someone else. This repeated
attempt to avoid careful scrutiny of its own actions must fail.
CONCLUSIONS OF LAW
1. Respondent Larsdale, Inc. (Burkart Carolina) is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Electronics, Electrical, Salaried,
Machine and Furniture Workers, AFL–CIO, and its Local
Union 265FW is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
3. Beginning in October 1990, and continuing thereafter,
Respondent bargained with the Union with a preconceived
fixed agenda, hurrying as fast as possible to achieve ‘‘im-
passe’’ in order to implement its agenda, bypassing alto-
gether any meaningful attempt at bargaining, and thereby
bargained in bad faith throughout negotiations with the
Union in violation of Section 8(a)(1) and (5) of the Act.
4. During its period of bad-faith bargaining with the
Union, Respondent unilaterally implemented an offer without
there being a true impasse, and in so doing Respondent uni-
laterally eliminated employee pension plan payments; unilat-
erally eliminated employee health insurance; unilaterally dis-
continued the employees’ seniority plan, including super-
seniority for union officials; and thereafter laid off employ-
ees Jeannie Jackson and John Leonard as a result of the uni-
lateral continuance of the seniority plan; and Respondent
thereby violated Section 8(a)(1) and (5) of the Act.
5. In purporting to restore health insurance, Respondent
unilaterally instituted a new and different insurance carrier
with new and different terms of coverage without notifying
the Union or giving it an opportunity to bargain about such
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Although the matters covered in this finding are not specifically
alleged as violations of the Act in the complaint, they are like and
related to allegations which are contained in the complaint that Re-
spondent bargained in bad faith and made various unilateral changes.
Accordingly, this finding is appropriate.
matters, and Respondent thereby violated Section 8(a)(1) and
(5) of the Act.6
6. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative actions de-
signed to effectuate the policies of the Act.
The complaint contains an allegation that notwithstanding
restoration of contributions to the health insurance plan, Re-
spondent thereafter in bad faith proposed elimination of the
contributions and unilaterally ceased to make such contribu-
tions on or about June 1, 1991. For reasons stated in the de-
cision above, I have found that Respondent continued to bar-
gain in bad faith throughout the period of negotiations with
the Union here. I have also found that in purporting to re-
store health insurance benefits, Respondent engaged in fur-
ther unilateral changes in violation of Section 8(a)(1) and (5)
of the Act. No separate finding is necessary that in again
eliminating health insurance Respondent violated Section
8(a)(1) and (5) of the Act. Respondent will be ordered to re-
store the status quo ante as it existed prior to the first elimi-
nation of health insurance coverage. Restoration of the Lin-
coln National health insurance coverage does not constitute
restoration of the status quo. Restoration of Metropolitan
coverage is required.
The complaint also alleges that notwithstanding restoration
of contributions to the pension plan of its employees, Re-
spondent thereafter proposed elimination of such contribu-
tions, and unilaterally ceased making such contributions on
or about June 1, 1991. As stated previously, I have found
that Respondent continued to bargaining from a fixed posi-
tion and in bad faith with the Union throughout negotiations.
Respondent shall be ordered to restore the status quo ante as
it existed prior to the initial elimination of pension plan pay-
ments. Although the complaint alleges that Respondent ‘‘re-
stored’’ such payments, no evidence was presented to me
that Respondent restored such payments in such a manner as
would be required pursuant to a Board order. Moreover, it
is clear that Respondent did not fully restore the status quo
resulting from all of its unilateral changes, as evidenced by
changes in the health insurance coverage described above.
Therefore, it is clear that Respondent has not fully remedied
unilateral changes resulting from the unlawful imposition of
its November 21 offer to the Union. Accordingly, an order
requiring Respondent to restore the status quo is appropriate,
and a full restoration of the status quo from the point of
compliance back to November 1990 is anticipated and in-
cluded within this remedy.
[Recommended Order omitted from publication.]