Logemann Brothers Co.

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 1018 (N.L.R.B. 1990)

1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Logemann Brothers Company and District No. 10,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 30-CA-
8425
June 29, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 28, 1985, Administrative Law Judge
Phil W. Saunders issued the attached decision. The
Respondent filed exceptions, a supporting brief,
and an answering brief. The General Counsel filed
cross-exceptions, a supporting brief, and an answer-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by: (1) distribut-
ing a questionnaire to employees soliciting ideas on
how to improve plant efficiency; (2) unilaterally
ceasing payments to employees for time spent in
contract negotiations and grievance processing; (3)
engaging in bad-faith surface bargaining; and (4)
unilaterally implementing a wage increase in the
absence of impasse. For the reasons set forth
below, we agree with the finding of violations for
conduct at issue in (2) and (4) above, but we dis-
agree that the Respondent acted unlawfully with
respect to the conduct at issue in (1) and (3).
Background
The Respondent and the Union have had a series
of collective-bargaining agreements covering a unit
of production and maintenance employees at its
Milwaukee and Saukville, Wisconsin facilities. The
most recent contract relevant to this proceeding
was effective from April 1983 to March 31, 1984.
In accord with the wishes of unit members cogni-
zant of the Respondent's financial difficulties result-
ing from increased competition, the Union decided
in December 1983 not to reopen the contract, but
rather to allow it to renew automatically for an-
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
other year. On January 23, 1984,2 however, the
Respondent notified the Union of its intent to ter-
minate the contract and to negotiate a new agree-
ment. Also in January, the Respondent distributed
to all employees, including those not in the bar-
gaining unit, a one-page questionnaire that asked
for suggestions on how to improve the efficiency
of the Respondent's operation.
The parties began bargaining for a successor
contract on April 3. At this first session, the Re-
spondent's chief negotiator passed out to the
Union's bargaining committee a copy of the afore-
mentioned employee questionnaire and read select-
ed responses submitted by employees. In addition,
the Respondent announced that it would no longer
pay the employee-members of the Union's bargain-
ing committee for time spent in negotiations, nor
would it continue to pay employees who were
grievants and union officials for time spent in the
presentation and processing of grievances. The par-
ties stipulated that this announcement represented a
departure from past practice. Further, the expired
collective-bargaining agreement contained provi-
sions requiring the payment of grievants and wit-
nesses for time spent in grievance meetings, and
compensation of shop committeemen at their
normal rates "for all time consumed in union activ-
ity with the Company." After the first meeting, the
parties did not discuss the matter of negotiating
pay and grievance pay again.
At the April 3 meeting, the Respondent pro-
posed a number of changes from the expired con-
tract. These changes included a broad manage-
ment-rights clause and elimination of union-security
and dues-checkoff provisions. The Union's April 12
counterproposal included a 5-percent wage raise
and increases in the Respondent's contributions to
fringe benefit programs. As set forth in detail by
the judge, during the succeeding seven bargaining
sessions held between April 12 and July 6 the par-
ties exchanged proposals and counterproposals,
made concessions, and reached agreement on a
number of substantive items. Throughout the nego-
tiations, the Respondent emphasized that it placed
much importance on its proposed management-
rights clause and the elimination of union shop and
dues checkoff.
By the July 6 meeting, the parties lacked agree-
ment on a number of subjects, including wages, se-
niority, health benefits, management rights, union
security, and checkoff. At this meeting the Union
stated that the Respondent's management-rights
clause was too severe, and that it had to have a
union-security provision. Later in the meeting the
2 All subsequent dates are in 1984, unless otherwise stated.
298 NLRB No. 155
LOGEMANN BROS CO., 1019
Union proposed to eliminate checkoff, to replace
union shop with maintenance of membership, and
otherwise to continue with the terms of the 1983--
1984 agreement. The Respondent replied that its
final offer was the contract it had proposed, with
the various changes that the parties had already
agreed on during the negotiations. The Union then
announced that it was leaving the bargaining table
and would file unfair labor practice charges alleg-
ing that the Respondent had engaged in bad-faith
bargaining.
The parties did not meet again until January
1985. They made no further progress, and have not
met since that session. On January 1, 1985, the Re-
spondent unilaterally granted a 41-cent-an-hour
wage raise to all employees. The Respondent's
stated reason at the time for the raise was an in-
crease in sales during the last several months of
1984.
The Questionnaire
The judge found that the Respondent's January
1984 distribution to unit employees of the question-
naire soliciting ideas on improving plant efficiency
violated Section 8(a)(5). He concluded that the
questionnaire "was, in effect, merely a guise to
gather information for company strategy in the up-
coming negotiations," and that it constituted an un-
lawful bypassing of the Union and a direct dealing
with employees.
The key portion of the questionnaire reads as fol-
lows:
We are searching for ways for making better
use of our people, better use of our machines,
and better use of our equipment, our time and
our materials. Do you think there are better
ways to do the job? How about our equipment
and machines? Can we do things "smarter"?
Please let us have your suggestions.
Among the sample responses to the questionnaire
by employees were:
"We need to find ways to reduce costs"
"Put qualified, experienced people to do the
job efficiently"
"Cooperate and pull together"
"Have the right people in the right jobs"
"[R]educe the work force to the best work-
ers. That may . . . include the most versatile
(able to do more than one job throughout the
day)."
In finding a violation , the judge relied on Obie
Pacific, Inc., 196 NLRB 458 (1972). That case in-
volved the polling of employee sentiment as to a
specific provision in a collective -bargaining agree-
ment for the admitted purpose of using that infor-
mation to persuade the union to agree to a conces-
sionary revision of that clause. Accordingly, the
Board concluded that such conduct was an unlaw-
ful attempt to erode a union's bargaining position
and to interfere with its role as the exclusive bar-
gaining representative of unit employees. Similarly,
the Board has more recently found unlawful an
employer's survey of employees, taken during the
last 2 months of a contract, that requested their
preferences regarding three specific fringe benefit
packages that the union had unsuccessfully sought
to include in the existing contract, See Alexander
Linn Hospital Assn., 288 NLRB 103 (1988). Citing
Obie Pacific, the Board concluded that given the
timing just months after the union had requested
negotiations for a new contract-as well as the
nature of the survey, it could not be deemed a
mere general survey of employee views unrelated
to collective bargaining, but was instead an unlaw-
ful attempt to ascertain employee opinion prior to
bargaining. Alexander Linn Hospital, supra at 106.
In order to bring the instant case within the
ambit of Obie Pacific, the judge noted that the
questionnaire was distributed a few months before
contract negotiations were to begin and that
sample employee responses were presented to the
Union at the first negotiating session. From this the
judge concluded that there can be "little doubt"
that the Respondent composed the questionnaire
before it formulated its initial contract proposals,
and that the nature of the responses leads to the in-
ference that the contract proposals were formulat-
ed and based on such responses.
The judge does not identify and we do not dis-
cern any specific provision of the Respondent's
contract proposals that relates, except in a most
general sense, to the employees' responses. The
questionnaire appears instead to be a more direct
and aggressive alternative to a preexisting sugges-
tion box system for communicating with employ-
ees. It represented a continuing attempt to elicit
employees' suggestions about ways to correct what
even the Union admitted were considerable and
worsening production inefficiencies. Furthermore,
the Respondent distributed the questionnaire to all
employees, not just to the union-represented em-
ployees (as in Obie Pacific).
We conclude that such general and innocuous
questions on a survey with an open-ended solicita-
tion for employees' suggestions on how to improve
plant efficiency did not in these circumstances con-
stitute an unlawful attempt to intrude upon the
Union's representative role. We find that the distri-
bution of the questionnaire was merely permissible
communication between the Respondent and its
employees, was consistent with the Respondent's
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
past practice of communicating with employees,
and was motivated by legitimate business concerns.
See, e.g., United Technologies Corp., 274 NLRB
1069 (1985), enfd. 789 F.2d 121 (2d Cir. 1986). Ac-
cordingly, we shall dismiss this allegation of the
complaint.
Unilateral Cessation of Grievance and
Bargaining Pay
The judge found that the Respondent also violat-
ed Section 8(a)(5) when it announced at the first
bargaining meeting that it would discontinue
paying employee participants in grievance process-
ing and in contract negotiations. The Respondent
in fact ceased payments to employees on the union
bargaining committee, and we agree with the judge
that such unilateral action was unlawful. There was
only one grievance processed after the first bar-
gaining session and the Respondent paid employees
for their time spent on it, but only because it inad-
vertently scheduled the grievance meeting during
working time. The Respondent made it clear, how-
ever, that this one-time payment was not meant as
a retraction of its earlier announcement ending the
practice. To the contrary, the Respondent reiterat-
ed its intention to adhere to its policy of refusing
grievance pay. Accordingly, we affirm the judge's
finding that such unilateral conduct also violated
the Act.3
Alleged Surface Bargaining
In assessing the allegation that the Respondent
bargained in bad faith during contract negotiations
with the Union, the judge properly acknowledged
that Section 8(d) of the Act, which defines the
duty to bargain, does not require either party in
collective bargaining to agree to a proposal or to
make a concession. He also correctly stated that to
determine whether an employer has bargained in
bad faith it is necessary to examine the totality of
the employer's conduct, not just isolated aspects of
it. See, e.g., Atlanta Hilton & Tower, 271 NLRB
1600 (1984). We disagree, however, with the
judge's opinion that the several factors discussed
below prove that the Respondent's overall bargain-
ing conduct violated Section 8(a)(5).
We note initially that the Respondent promptly
attended each of the eight scheduled negotiation
sessions held between April 3 and July 6 and came
fully prepared to bargain. It presented a complete
contract proposal at the first meeting. During the
course of negotiations the parties reached agree-
ment on many subjects that were identical to the
expired contract terms the Union had sought to
extend, and the Respondent had modified a number
of its proposals to which the Union objected. Fur-
thermore, in accord with our dismissal of the
8(a)(5) allegation concerning the Respondent's cir-
culation and use of the January questionnaire, such
conduct was not indicative of bad-faith bargaining.
The judge found that the foremost evidence of
the Respondent's bad-faith bargaining was its posi-
tion on certain contract issues, particularly its pro-
posals for a broad management-rights clause and
the elimination of union security and dues check-
off. The judge viewed those proposals as predict-
ably unacceptable and concluded that the Respond-
ent's "take-it-or-leave-it attitude" with respect to
these three key issues showed the lack of desire to
conduct any meaningful negotiations. Although the
Board has recently reaffirmed "that the content of
bargaining proposals will, in certain circumstances,
be evidence of an intent to frustrate the collective-
bargaining process,"4 we find that the bargaining
proposals at issue do not establish that the Re-
spondent engaged in unlawful surface bargaining.
With respect to the judge's view that the propos-
als made were predictably unacceptable, the Board
stated in Reichhold that its examination of specific
bargaining proposals will not involve decisions
"that particular proposals are either `acceptable' or
`unacceptable' to a party."5 Furthermore, the Re-
spondent has presented uncontradicted evidence
that a proposal to eliminate union security was ac-
cepted by the Union in contract negotiations with
another employer. The Union had also agreed to a
virtually identical management-rights clause with
another employer. Even in the negotiations at issue
here, the Union's July 6 counterproposal to the Re-
spondent actually included proposals to eliminate
checkoff and to modify union security by replacing
union shop with maintenance of membership.
In discussing a proposal to eliminate union secu-
rity in Challenge-Cook Bros., 288 NLRB 387, 388
(1988), the Board stated that "the existence of such
a clause in previous contracts does not by itself ob-
ligate the parties to include it in successive con-
tracts." We find this statement equally applicable
to dues-checkoff provisions. In either case, the
General Counsel has failed to adduce sufficient evi-
dence that in the circumstances of 'the negotiations
at issue the Respondent disingenuously proposed
elimination of union security and checkoff or ad-
hered to those proposals with the intent to frustrate
agreement.
4 Retchhold Chemicals, 288 NLRB 69 (1988), reversed on other
3 With respect to the Respondent's remedial backpay obligation for this grounds sub nom Teamsters Local 515 v. NLRB, 906 F 2d 719 (D C Cir
violation, interest shall be computed in the manner prescribed in New Ho- 1990); also see Atlanta Hilton, supra at 1603
rrzons for the Retarded, 283 NLRB 1173 (1987) 5 Retchhold, supra,
LOGEMANN BROS. CO., 1021
Finally, although the Board has found bad-faith
bargaining on the basis of a management-rights
proposal so comprehensive as to preempt the
Union's representative function and to leave unit
employees with less protection than they had prior
to electing collective-bargaining representation, 6
we do not find the Respondent's proposal to be of
that nature. Accordingly, we do not find that the
Respondent's proposals on the above-mentioned
three bargaining subjects indicated bad-faith bar-
gaining.
We also find no evidence of bad-faith bargaining
in various other remaining proposals that the judge
found either reduced benefits or restricted rights
enjoyed under the last contract. This finding ob-
scures the fact that the Respondent was engaged in
negotiations for concessions to stem further finan-
cial decline. The Respondent's serious financial
plight had been a factor in the Union's earlier deci-
sion not to request negotiations for a new contract.
Presentation of concessionary proposals under such
circumstances does not indicate bad faith. See
Glenmar Cinestate, 264 NLRB 236 (1982).
In addition to the Respondent's proposals, the
judge determined that its "recalcitrant posture and
bad-faith bargaining" was demonstrated by certain
statements of the Respondent's negotiators at the
bargaining table. Although some statements by ne-
gotiating parties may show an intention not to bar-
gain in good faith, the Board is especially careful
not to throw back in a party's face remarks made
in the give-and-take atmosphere of collective bar-
gaining. "To lend too close an ear to the bluster
and banter of negotiations would frustrate the
Act's strong policy of fostering free and open com-
munications between the parties." Allbritton Com-
munications, 271 NLRB 201, 206 (1984), enfd. 766
F.2d 812 (3d Cir. 1985), cert. denied 474 U.S. 1081
(1986). In light of this standard, none of the re-
marks cited by the judge are sufficient to prove
bad-faith intent to avoid reaching agreement. Like-
wise, the unlawful unilateral cessation of payments
to employee negotiators and to employees engaged
in the grievance process is by itself insufficient to
support a ,finding that the Respondent's intent was
to avoid an agreement. See, e.g., Roman Iron
Works, 275 NLRB 449, 453 (1985). Finally, we find
that the Respondent's postimpasse violation of Sec-
tion 8(a)(5) by its unilateral wage increase on Janu-
ary 1, 1985, discussed below, has little relevance to
the legality of the Respondent's bargaining 6 to 9
months earlier.7
6 See A-1 King Size Sandwiches, 265 NLRB 850 (1982), enfd 732 F 2d
872 (11th Cir 1984), cert denied 469 U.S 1035 (1984)
' We find that this case is distinguishable from Harrah's Marina &
Casino, 296 NLRB 116 (1989), where the Board held that insistence to
In sum, we conclude that the totality of the Re-
spondent's conduct throughout the course of nego-
tiations establishes that it engaged in lawful hard
bargaining, rather than unlawful surface bargaining.
We shall dismiss this allegation of the complaint.
Unilateral Wage Increase
As previously stated, the judge decided that the
Respondent's January 1, 1985 general wage in-
crease constituted a violation of Section 8(a)(5), as
well as being further evidence of the Respondent's
bad-faith surface bargaining. The judge found that
the Respondent was not entitled to make this uni-
lateral change because there was no impasse in ne-
gotiations in view of the Respondent's bad-faith
bargaining. Even assuming, however, that there
was a legitimate impasse, the judge nevertheless
held that the wage raise was impermissible because
it was not included in the Respondent's proposals
to the Union.
Contrary to the judge, we find that the parties
were at a lawful impasse after their eighth meeting
of July 6. For the reasons set forth above, we have
found that the Respondent bargained in good faith
throughout the preceding negotiations. There was
no movement towards an agreement at the July 6
meeting, the parties remained far apart on several
important bargaining issues, and the Union left the
session stating that it would file unfair labor prac-
tice charges with the Board." Furthermore, al-
though we agree with the judge that the Respond-
ent violated Section 8(a)(5) by the cessation of bar-
gaining and grievance pay announced at the first
negotiating session, there is no evidence that these
unilateral changes had any effect on subsequent
bargaining. Indeed, it is undisputed that the parties
did not discuss the subject of bargaining and griev-
ance pay after their first negotiating session. Under
these circumstances, we find that the unlawful uni-
lateral changes did not preclude subsequent good-
faith bargaining to impasse. Accordingly, we find
that an impasse existed as of the July 6 meeting and
continued thereafter within the meaning of Taft
Broadcasting Co., 163 NLRB 475 (1967).
Regarding whether the unilateral granting of the
across-the-board wage increase was lawful, the Re-
impasse on the unilateral right to raise wages was indicative of bad faith
and, in conjunction with numerous other indicia of bad faith, established
that the Respondent was guilty of surface bargaining Here, the Respond-
ent's wage proposal was not a factor in the parties' bargaining impasse
(the Union had tentatively agreed to such a proposal) and neither the Re-
spondent's adherence to the proposal nor the postimpasse implementation
of a wage increase was part of a pattern of conduct establishing a lack of
good-faith intent to reach an agreement.
8 As noted previously, the parties did not resume bargaining until more
than 6 months later, and then made no progress at the short meeting held
on January 28, 1985
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent contends that its action was reasonably
encompassed by its last bargaining proposals to the
Union. In particular, the Respondent relies on sec-
tion 7.02 of its final contract offer, which provided:
The wages and benefits set forth in this Agree-
ment are minimums and the Company may
from time to time institute, change or establish
benefits and/or wages that are in excess of the
minimums provided in this Agreement.
The Respondent also points to subparagraph (e) of
its proposed management-rights clause. as further
support of its contention that the wage increase
was permissible. That provision stated that the
right to make wage increases was "vested entirely
and exclusively in the Company." Finally, Plant
Superintendent Tallafuss testified that in addition to
the wage rates specified in prior contracts the Re-
spondent maintained a practice of awarding merit
increases to unit employees without objection by
the Union.
Tallafuss also testified, however, that the 1985
general wage increase was not a merit increase,
and the Respondent's contemporaneous explanation
for the raise attributed it to increased sales. In addi-
tion, Tallafuss testified that the Respondent's past
practice was to negotiate wage increases during the
contract sessions . Furthermore, although the
Union's April 12 counterproposal included a provi-
sion for a 5-percent wage increase , the Respondent
never proposed or appeared to contemplate any
general wage increase for unit employees during
the 1984 contract negotiations. An attachment to
the Respondent's contract proposal set forth the
same minimum rate schedules as were in effect
under the expired contract.
The circumstances relevant to the Respondent's
wage proposals do not establish that they reason-
ably encompassed the discretionary unilateral right
to make a general wage increase. Those circum-
stances include, notably, the past practice of per-
mitting unilateral merit increases as distinct from
unilateral general wage increases, the testimony of
Plant Superintendent Tallafuss that the Respond-
ent's past practice was to negotiate wage increases
during contract sessions , the Respondent's attach-
ment to its bargaining proposals of a particular
scale of minimum rates for unit job classifications
that would supposedly be in effect at the com-
mencement of a contract, and the Union's act of
keeping on the table its proposal for an across-the-
board 5-percent increase, while agreeing tenatively
to section 7.02.
Thus, considered in the context of the parties'
bargaining history, the Respondent's proposals on
wage increases represented little more than the
continuation of a past practice regarding merit in-
creases. They did not reasonably encompass a clear
and unmistakable waiver of the Union's statutory
right to bargain over general increases of the kind
represented by the 41-cent-across-the-board in-
crease here. The Respondent's January 1, 1985 uni-
lateral general wage increase therefore contravened
the settled rule that unilateral changes are lawful
only if they are reasonably encompassed by preim-
passe proposals made to the bargaining representa-
tive. NLRB v. Katz, 369 U.S. 736 (1962); River City
Mechanical, 289 NLRB 1503 (1989).9 Moreover,
even if we were to construe section 7.02 as urged
by the Respondent, it would not be permitted to
rely on this proposal as a basis for unilaterally
waiving the Union's statutory right to bargain
about the timing and amounts of specific wage in-
creases. See Colorado-Ute Electric Assn., 295 NLRB
607 (1989).10 Accordingly, we find that the 41-
cent-general-wage increase given to all unit em-
ployees violated Section 8(a)(5) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Logemann Brothers Company,
Milwaukee and Saukville, Wisconsin, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with District
No. 10, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
representative of an appropriate unit of the Re-
spondent's employees by unilaterally ceasing pay-
ments to unit employees on the union bargaining
committee for time spent in contract negotiations,
by unilaterally ceasing payments to employees who
are grievants and union representatives for time
spent in the presentation of grievances, and by uni-
laterally implementing a general wage increase for
unit employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union about
bargaining pay, grievance pay, and wage increases
for unit employees.
9 Member Devaney relies solely on the foregoing reasoning in this
paragraph in finding that the Respondent violated Sec 8(a)(5) by unilat-
erally implementing a general wage increase for unit employees.
10 Although Chairman Stephens did not join the panel majority opin-
ion in Colorado Ute (and still has reservations concerning some of its rea-
soning), for institutional reasons he concurs with Member Cracraft in
finding that under that precedent the Respondent's unilateral grant of a
general wage increase violated its duty to bargain with the Union
LOGEMANN BROS CO,
(b) Resume paying employees on the union bar-
gaining committee for time spent in contract nego-
tiations, resume paying employees who are griev-
ants and union representatives for time spent in the
presentation of grievances , and make such employ-
ees whole, with interest , for any losses resulting
from the failure to make such payments.
(c) If the Union requests , cancel the January 1,
1985 wage increase unlawfully granted to unit em-
ployees through the Respondent 's unilateral action;
provided, however , that nothing in this Order shall
be construed as requiring the Respondent to re-
scind the wage increase granted unless the Union
requests such action.
(d) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its plants in Milwaukee and Saukville,
Wisconsin, copies of the attached notice marked
"Appendix ." I i Copies of the notice , on forms pro-
vided by the Regional Director for Region 30,
after being signed by the Respondent 's authorized
representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
i i 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant To a Judg-
ment of The United States Court of A ppeals Enforcing an Order of The
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
District No. 10, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO as the
exclusive representative of an appropriate unit of
1023
our employees , by unilaterally ceasing payments to
unit employees on the union bargaining committee
for time spent in contract negotiations , by unilater-
ally ceasing payments to employees who are griev-
ants and union representatives for time spent in the
presentation of grievances , and by unilaterally im-
plementing a general wage increase for unit em-
ployees.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request , bargain with the Union
about bargaining pay, grievance pay, and wage in-
creases for unit employees.
WE WILL resume paying employees on the union
bargaining committee for time spent in contract ne-
gotiations , resume paying employees who are
grievants and union representatives for time spent
in the presentation of grievances , and WE WILL
make such employees whole, with interest , for any
losses resulting from the failure to make such pay-
ments.
WE WILL , if the Union requests , cancel the Janu-
ary 1, 1985 wage increase unlawfully granted to
unit employees through our unilateral action.
LOGEMANN BROTHERS COMPANY
Laurence E. Gooding, Esq. and Ely A. Leitchtling, Esq.,
for the Respondent.
Walter Steele Esq. and Patrick Herald, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS , Administrative Law Judge. Based
on a charge filed on July 16, 1984, by District No. 10,
International Association of Machinists and Aerospace
Workers, AFL-CIO (the Charging Party or Union), a
complaint and amendment to the complaint were issued
on November 28, 1984 , and on March 12, 1985, respec-
tively, against Logemann Brothers Company (the Re-
spondent, Logemann , or Company), alleging violations
of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act Respondent filed an answer denying it had en-
gaged in the alleged matter. The General Counsel and
the Respondent filed briefs in this matter. I have only
considered those briefs (or letters) filed on or before May
31, 1985.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material, Respondent, a Wisconsin corpo-
ration with an office and place of business in Milwaukee,
Wisconsin, has been engaged in the manufacture of
heavy duty recycling equipment, and during the last cal-
endar year, ending December 31, 1983, Respondent, in
the course and conduct of its business operations, sold
and shipped from its Milwaukee, Wisconsin facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly to points located outside the State of Wisconsin.
Respondent is now, and has been at all times material,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that on or about March
1984, Respondent bypassed the Union and dealt directly
with its employees in the bargaining unit by distributing
a questionnaire to employees which solicited suggestions
regarding the business of Respondent, and which said
questionnaire was subsequently used by Respondent in its
contract negotiations with the Union; that on or about
April 3, 1984, Respondent ceased paying the employees
on the union bargaining committee for time spent in con-
tract negotiations; that on or about July 11, 1984, Re-
spondent unilaterally and impermissibly implemented its
contract proposals; that on or about January 1, 1985, Re-
spondent unilaterally implemented an increase in wages
to employees which increase was substantially greater
than its wage proposal made to the Union during negoti-
ations; and that Respondent engaged in the acts and con-
duct described above without prior notice to the Union
and without affording the Union an opportunity to nego-
tiate and bargain to impasse with respect to such acts
and conduct, and in so doing undermined the Union and
discouraged employee support for activities on behalf of
and/or membership in the Union.
Since April 3, 1984, and at various times thereafter,
Respondent and the Union met for the purposes of en-
gaging in negotiations with respect to wages, hours, and
other terms and conditions of employment, and it is al-
leged that during this period Respondent engaged in the
following acts and conduct:
(1) adhered rigidly to proposals predictably unac-
ceptable to the Union including:
(a) the elimination of union security and dues
checkoff;
(b) a proposed management rights clause dras-
tically curtailing the Union's representation capa-
bilities;
(c) proposed limitations on the Union's use of
its bulletin board, access to the plant and activi-
ties on company property during working hours;
and
(d) a proposed reduced number of paid holi-
days, vacation days, and wages.
(2) refused to accept or suggest any modifications
of its proposals;
(3) insisted upon the acceptance of its proposal
only in its entirety, and by its overall acts and con-
duct, Respondent has failed and refused to bargain
in good faith with the Union as the exclusive collec-
tive-bargaining representative of the bargaining
unit. i
Respondent, Logemann Brothers Company,2 is a Wis-
consin corporation which is engaged in the business of
welding fabrication, machining and assembly, and its
general corporate offices and a part of its operations are
located at its Milwaukee plant, while the balance of its
operations are located at its Saukville plant. The produc-
tion and maintenance unit employees have been repre-
sented by the Charging Party for a number of years and
the parties have entered into several successive collec-
tive-bargaining agreements.3 It appears that approximate-
ly 8 bargaining unit employees are located at the Mil-
waukee plant, and approximately 17 are located at the
Saukville plant. President and principal owner of Re-
spondent is Carl Dieterle, the plant superintendent is
John Tallafuss, and John Glowinska is the plant person-
nel manager.
In late December 1983, in view of the impending expi-
ration of the 1983-1984 agreement, Union Business Rep-
resentative Patrick Herald called a meeting of the bar-
gaining unit of Respondent. It appears that the purpose
of the meeting was to elect the employee bargaining
committee who would then participate in the negotia-
tions, and to ascertain the unit's desires regarding a new
contract. The employees elected to the bargaining com-
mittee were Mike Kusko, who was the union steward
and who had served on the bargaining committee previ-
ously, along with employees Roger Ellis and Jim Zeman,
and in regard to any new contract proposals by the
Union, it was decided that in view of the Respondent's
past and present financial problems (increased competi-
tion) they would not seek any changes in the 1983-1984
agreement and which included no change in the wage
scales. The unit therefore voted not to reopen the con-
tract, but to allow the contract to renew itself automati-
cally for another year by a provision contained therein.
However, on January 23, 1984, Herald received the re-
quired and timely letter from Respondent's President
Carl Dieterle notifying the Union that this communica-
tion was the Respondent's notice for termination of the
contract at the expiration date of March 31, 1984, pursu-
ant to article 12 of the contract, but that the Company
was prepared to meet for the purpose of negotiating a
new contract.
' Admittedly, all production and maintenance employees of Respond-
ent, exclusive of all office, technical and professional employees, foreman,
assistant foreman and guards„ constitutes a unit appropriate for collective
bargaining within the meaning of Sec 9(b) of the Act
2 The correct designation of the Respondent
s The most recent agreement effective by its terms for the period April
1983 to March 31, 1984-G C. Exh 6
LOGEMANN BROS. CO., 1025
Shortly after receiving this notice from the Company,
Herald contacted Plant Personnel Administrator John
Glowinska, and Glowinska then informed Herald that
Respondent had an attorney who would be representing
them in negotiations and that the Union would be hear-
ing from him. Around March 14, Herald received a
phone message from Attorney James Mallien of the law
firm Quarles and Brady. He also received a letter from
Mallien on March 23, 1984, indicating that Mallien
would be representing Respondent in the upcoming ne-
gotiations. Herald then called Mallien and arranged a
date, April 3, for the first bargaining sessions.
Some time before negotiations commenced, Respond-
ent prepared and distributed to its employees a question-
naire which solicited suggestions from them as to how to
operate the facility more efficiently.4 Although Respond-
ent's plant manager Glowinska could not recall what
precipitated the questionnaire, nor when, or who pre-
pared it, he did suggest that it resulted from a meeting
with the law firm that represented them in negotiations.
Moreover, at the first bargaining sessions the Respondent
passed out to the union bargaining committee selected
responses from the questionnaire. The General Counsel
contends that after reviewing these responses, the Re-
spondent then submitted its contract proposals to the
Union strongly suggesting that the proposals addressed
the concerns and possible ways the Company could op-
erate more efficiently as reflected in the questionnaire re-
sponses.
Bargaining Sessions
The First Session--April 3, 1984
As has been indicated, the parties had their first nego-
tiations session on April 3, 1984. Bargaining for Re-
spondent were Attorney James Mallien, Personnel Ad-
ministrator John Glowinska, and Plant Superintendent
John Tallafuss, and bargaining for the Union were Busi-
ness Representative Patrick Herald and employee com-
mittee members Michael Kusko, James Zeman, and
Roger Ellis.5
At the start of this meeting on April 3, Mallien distrib-
uted a copy of the employee questionnaire, as aforestat-
ed, and read some of the comments and suggestions re-
ceived, and then outlined Respondent's goals for a new
contract:
4GC Exh 9
5 At the various negotiating sessions between the parties, longhand
notes were taken at each meeting by Malhen and Glowmska , and subse-
quent to the meeting, typed minutes were then compiled from the notes
kept by Mallien and then such minutes were distributed to employees
shortly after the meetings and the union negotiating team also received
copies of the same . Herald admitted that Maihen 's minutes were general-
ly "quite accurate," and in setting forth the facts I have relied in most
instances on the minutes of Attorney James Malhen (G C Exhs 1
through 8), and the notes of Personnel Administrator John Glowinska
(G C Exh 11), unless such minutes and notes were specifically disputed
by General Counsel witnesses Herald or Kusko , and in those instances
the credibility, resolutions have been derived from a review of the entire
testimonial records and exhibits with due regard for the logic and proba-
bility, the demeanor of the witnesses, and the teaching of NLRB v.
Walton Mfg Co, 369 U S 404 (1962)
(1) the Company wanted to be able to produce
more efficiently;
(2) the Company wanted the flexibility to move
people where needed without going through post-
ing and transfer procedures;
(3) the Company wanted broad management
rights powers as stated in their proposal;
(4) the Company wanted to be able to avoid
delays in performing work; and
(5) the Company wanted to achieve cost contain-
ment by being able to assign the best person to the
particular job at hand.
Near the start of this first negotiating session , Mallien
also went on to state that commencing with the April 3
meeting, the Respondent would no longer pay the em-
ployee-members of the union bargaining committee for
the time spent in negotiations, nor would it any longer
pay a grievant and/or union officials for time spent in
the presentation and processing of grievances. This
record shows that the Respondent had paid the partici-
pants in both processes in the past as stipulated at the
hearing, as well as a specific provision for the payment
to participants in grievance meetings being, contained in
the expired contract. (G.C. Exh. 16, p. 6).6 At this point
in the session employee member Kusko asked Mallien for
clarification of his statement to the effect of not paying
for time in negotiations and grievance meetings-more
specifically, Kusko asked Mallien if those were his pro-
posals on the two subjects or whether it was going to
take effect at this time. Mallien replied that 'the Union
would not be paid as of this time, and thereafter there
was no discussion of this subject at any of the other bar-
gaining sessions.
During this session on April 3, Mallien also explained
that Logemann was proposing substantial revisions to the
1983-1984 agreement and then distributed to the Union
copies of the Respondent's new proposal.? He explained
that Logemann had also proposed a clause allowing em-
ployees the right to choose whether they wanted to
belong to the Union as the Respondent was no longer
willing to force anyone to belong to the Union or pay
dues to the Union, and further stated that the Company
would not deduct union dues from employee pay-
checks-that, in fact, the Respondent was prohibited by
law from making dues deduction unless there was a con-
tract in effect which so required.
6 The stipulation between the parties was as follows:
The Respondent since on or before January 1, 1980 has paid union
officials and grievance for all time spent in the presentation of gnev-
ances and the Respondent has paid all employee members of the
union negotiation team for time spent in contract negotiations Since
and including April 3, 1984 and continuing to date , the Respondent
has ceased paying all employee members of the union negotiation
team for time spent in any and all negotiation sessions between the
Respondent and the Charging Party, but . has paid for all time
spent by union officials and the grievant [for] the one grievance that
has been presented since April 3, 1984.
7 See G.C. Exh. 19
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Second Session-April 12, 1984
This meeting began at approximately 2 p.m. with the
same participants for both sides. The Union began by
distributing its contract proposals-General Counsel's
Exhibit 22 , but it was then decided that the parties
would go through the Respondent 's proposals from the
beginning and note the items they could agree on, and
leave those that they could not agree on as open matters
for discussion later on, and the parties then began their
considerations of the Respondent 's initial proposals-
General Counsel 's Exhibit 19, and unless stated other-
wise all mention and references to sections and subsec-
tions pertain to this exhibit.
Article 1.01 of the recognition clause was agreed to.
Article 1.02 was the management-rights clause and it
contained seven subsections (i.e., A through H). Subsec-
tions A, regarding the right to hire, suspend, discharge
for cause, and lay off due to lack of work, as well as B,
involving the right to determine the products manufac-
tured and materials used , were both agreed upon. Sub-
section C, giving the Respondent the right to determine
and redetermine the source of supply for all services,
goods, materials , components , subassemblies, and prod-
ucts sold and/or used , and subsection D, giving the
Company the right to determine and redetermine pro-
duction schedules , assignment of the work, the shift, the
work schedules, the hours , the supervision of each em-
ployee of the Company, and whether any of the work
will be performed by supervisors or be subcontracted,
were all left open . The Union objected to the Company
having exclusive rights in the areas of subcontracting,
and supervisors performing unit work, inasmuch as it
would put its people out of work. According to the testi-
mony of Herald , his position was made known to the Re-
spondent at this meeting.
In respect to subsection E of the management-rights
clause-the right to make wage increases , promotions
and demotions , and to institute or change benefits greater
than those specified in this agreement-the Union object-
ed to the right of the Company to make "demotions" of
unit employees. The position of the Union was that the
Respondent had a probationary period and could use this
time to determine whether an employee could perform a
particular job, and this portion was left open.
Subsection F would give the Company the right to es-
tablish and reestablish reasonable rules and conditions
covering all aspects of the operation of the plant and the
conduct of employees while on company time or proper-
ty, and it appears that the Union did not object to this
proposal . Herald could not recall any discussion on it
and has nothing written in his notes concerning same.8
Subsections G, the exclusive right to relocate or to dis-
continue the business in whole or in part; and H, the
right to sell or assign , lease, or merge the Company,
were not agreed to and therefore were left open.
The Union agreed to Logemann 's proposed section
1.03 which required the Company to observe the terms
of the contract while exercising its management rights
and which reflected basically the same concept as the
s See also G .C Exhs 20 and 21-notes Herald took in relation to the
Respondent's proposals as they discussed same
comparable portion of article I, section 2 of the 1983-
1984 agreement.
The Union would not agree to Logemann 's proposed
section 1.04, which concerned employee freedom of
choice to join or not , join the Union.
At this second meeting on April 12, 1984, the Union
was not prepared to discuss article II of Logemann's
proposal concerning the grievance/arbitration procedure
and the no-strike/no-lockout clause, and as a result it
was passed over and left open for discussion later on.
The Union agreed with sections 3.01, 3.02, and 3.03 of
Logemann 's proposals which concerned the definition of
seniority , the probationary period, and the posting of the
seniority list, respectively , and which were substantially
similar to provisions in the 1983-1984 agreement.
Section 3 .04 involved seniority as it applied to an in-
crease or decrease of the work force and contained sub-
sections A through D. Subsection A was left open, and
B (regarding layoffs and recalls to be governed by se-
niority) was agreed to. Subsections C and D, which
would basically allow Respondent to deviate from strict
seniority in filling certain types of jobs and in layoff situ-
ations, were not agreed to as the Union wanted seniority
to-govern in those situations . Herald testified that he did
not believe that regular employees should ever be laid
off before probationary employees , even if the regular
employees did not have the necessary skill to perform
the work. The Company then offered to drop its pro-
posed subsection (d), which allowed the Company to
retain up to two employees out of the seniority order
under certain circumstances, if the Union agreed to the
balance of section 3 .04, but this offer was not accepted
by the Union.
Section 3.05 , covering the cessation of seniority under
certain situations, contained some five subsections-A
through E . Subsection A was agreed to after the Union
suggested adding the word "voluntary" before "termina-
tion." Subsection B, regarding discharge for just cause,
was left open because the Respondent did not define
"just cause." In subsection C, regarding termination from
work for missing 1 working day, the Union suggested
eliminating the phrase "unauthorized absence," and
adding the phrase "without calling in or unless impossi-
ble to call in," but it was not acceptable to the Respond-
ent at this time. Subsection E pertained to being absent
from the payroll for a year or a period equal to one's se-
niority, both of which would terminate the employee's
seniority . The Union wanted the same language of the
old contract which was a year and/or half the employ-
ee's seniority, whichever was greater, before his or her
seniority ceased . Also the Union wanted to know if
armed service time , or time off pursuant to workman's
compensation , or a prolonged illness were included in
this proposal . Thus, there was no agreement on E at this
time. However, the Union did agreed to subsection (d) of
Logemann 's proposed section 3 .05, which concerned fail-
ure to report after layoff and which was similar to lan-
guage contained in article III, section 7 of the 1983-1984
agreement.
Sections 3.06, on vacation payment in a layoff situa-
tion, and section 3.08, on promotions outside of the bar-
LOGEMANN BROS. CO., 1027
gaining unit, were agreed to, but section 3.07 on perma-
nent layoffs for those employees who refused a transfer
to the Saukville facility, was not agreed to. Herald had
reservations with the permanent layoff concept for such
a refusal inasmuch as it simply meant to the Union that
the employee was, in fact, terminated.9
Article 4 of the Respondent's initial proposals per-
tained to leaves of absence, jury duty, and funeral leave.
Section 4.01 established a 90-day limitation for leaves of
absences involving mandatory leaves or illnesses in the
family; 4.02 is on termination of leaves and returning to
former job; and on the extension of same, and were all
left open inasmuch as the Union objected to the 90-day
restriction on the amount of leave, as well as the 1 year
or length of seniority limitation, whichever was less, in
order to be placed back on the employee's former job.
Sections 4.04, on obtaining other employment while on
leave, and 4.05, on jury duty with the initial 10 days for
such leave was changed to 20 days per the Union's re-
quest, and were both agreed to. Section 4.06, on time off
for the death of immediate family members, was left
open because the Union wanted to include in-laws and
step-relations. 10
The parties then discussed the "open shop" concept
and Herald stated that all employees wanted to be in the
Union. Mallien explained that Logemann's proposal did
not prevent any employee from belonging to the Union,
but merely ' allowed them to have free choice as to
whether to belong. Logemann did not want to force any
employee one way or the other.
Herald then referred to the futility of a strike because
he believed that Logemann would hire replacements as it
had done during the last recent strike by the Union. Mal-
lien stated that a strike would be foolish for both sides
and that the best thing would be to try and work every-
thing out. '
After the parties scheduled the next bargaining session,
Herald asked to have copies of the minutes that the
Company prepared after each session mailed to him and
Malhen said ' that this would be done.
The Third Session--April 19, 1984
The same, persons met again on this date, and Mallien
opened the meeting by answering the Union's prior con-
cern with subsection 3,05(b) of his proposal by pointing
out that "just cause" was defined in section 14.02 of their
proposal, but even so Herald did not give his approval to
this subsection. Malhen acknowledged receipt of a copy
of the Union's pension plan, and Herald distributed
copies of the Union's proposed agreement concerning
the plan, and the parties then agreed to hold discussion
9 It appears that secs 3.06 and 3 08 were identical to like provisions in
the 1983-1984 agreement See G.C. Exh 16-art. 3 and sec 4 1
10 Logemann's proposed sec. 14 06 concerned funeral pay and con-
tained modifications to the comparable provision in the 1983-1984 agree-
ment (art. IX, sec 7), hut continued the availability of up to 3 days' pay
for certain deaths in the immediate family The Union proposed eliminat-
ing the language which required the funeral leave to commence with the
day following the day of death, Logemann accepted the counterproposal,
but the Union was still unwilling to agree to the clause because step-rela-
tives and in-laws were not included
of the Union's proposals in abeyance until they finished
discussing Respondent's proposals.
The next subject discussed, starting from where they
left off at the previous session, was article 5--vacations.
Sections 5.01 and 5.02, dealing with the arrangement of
vacations and the forms to be filled out for the period an
employee wished to take it, were agreed to, Again it is
noted that these sections were substantially similar to ar-
ticle IV, section 1 of the 1983-1984 agreement.
Next discussed was section 5.03 regarding the amount
of vacation time an employee would receive based on his
seniority, and the basic change in this area from the pre-
vious contract was that the new proposal of the Compa-
ny eliminated 5 and 6 weeks of vacation for employees
with 20 or more years seniority. The Union argued that
there were mostly senior people in the plant due to past
layoffs, and such a proposal would hurt these people in
particular, but Mallien indicated that 5.03 would only
apply to new hires. Herald then reminded the Company
that their initial contention was to the effect that the new
proposals would save them money, and went on to say
that if this proposal was applied to new hires, any would
not be realized for at least 20 years. i t Mallien then with-
drew 5.03 and submitted a new one (G.C.' Exh. 23). The
Union took a similar position on the new 5.03 in that it
also would not immediately save Respondent any money
and there was no agreement on it.
The Union did not agree to Logemann's proposed sec-
tion 5.04 concerning the time period during which vaca-
tion would accrue because the Union had offered a dif-
ferent proposal on this subject, and as a result it was
passed over and left open. ,
The Union refused to agree to Respondent's proposed
section 5.05 which concerned the method of calculating
vacation pay. The Union wanted to know what the
phrase "shop wages" meant and to eliminate the phrase
"preceeding'[sic] 26 weeks," and also asked for info if an
employee had been temporarily transferred to a lower
paying job-would he receive the higher or lower pay
for the vacation period. Mallien pointed out that the
phrase "shop wage" was taken directly from the 1983-
1984 agreement (art. IV, sec; 2(C)).
The Union also refused to agree to Logemann's pro-
posed section 5.06, which concerned service credit for
days not worked, even though the Company pointed out
that the language was virtually identical to the compara-
ble language contained in the 1983-84 agreement at art.
IV, sec. 2(E).
Before this session concluded, Mallien distributed a
new revision proposed by the Company to sections 5.03
and 5.05 concerning vacation and vacation pay. The
Union refused to agree to Logemann's proposals and the
Company stated it would try to further clarify them.
Herald then asked whether employees, would lose vaca-
tion if no contract was signed by June. Mallien assured
him that they would not and that vacation would not
depend on whether the parties had a contract.
I i Mallien offered to continue to apply the old schedule to current em-
ployees and thus "grandfather" them in
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties then discussed why Logemann had pro-
posed so many "language" changes, and Mallien ex-
plained that they were needed so that Logemann could
maintain competitiveness, and then the.parties adjourned
(after scheduling their next meeting) because Herald had
to attend another meeting.
The Fourth Session-April 25, 1984
At the outset of this meeting Mallien redistributed and
rediscussed Logemann's April 19, 1984 revisions to its
proposed section 5.03, and in relation thereto Herald still
wanted to know (in conjunction with sec. 5.06) what
would happen if an employee was demoted or trans-
ferred to a lower rate of pay prior to his vacation time-
the Union wanted the employee to be paid at his job
classification rate irrespective of a transfer to a lower
paying job. However, after further discussions, the
Union finally agreed to Respondent's proposed section
5.06.
Section 5.07, on prorata vacations, was then discussed
and after the Union requested that the phrase "for any
reasons" be inserted, the Company accepted the Union's
counterproposal on this issue.
The Union would not agree to Logemann's proposed
section 5.08 because it provided that vacations would run
from June through June, whereas the Union had pro-
posed that vacations should run from April to April, but
the Union agreed to Logemann's proposed section 5.09,
which concerned use of vacation days and which was
identical to article IV, section 7 of the 1983-84 agree-
ment.
Next was article 6 which was entitled, "Hours, Over
time, Premium Pay-Break times," and section 6.01 dealt
with the overtime definition-that 8 hours was a normal
workday. The Union wanted the normal workday to be
defined as 8 "consecutive" hours. Mallien suggested that
the section be revised to read: "8 consecutive hours (ex-
cluding meal time) constitutes a normal day's work and
40 hours, commencing on Monday, constitutes a normal
workweek. This does not guarantee any number of hours
per day or per week." Herald would not agree because
of the possibility of a "short" workweek, and also did
not agree after the Company offered to take out the
word "normal," and as a result section 6.01 was left
open.
The Union would not agree to Logemann's proposed
sections 6.02 and 6.03, which concerned shift times, pre-
mium rate and shift scheduling. Herald objected to the
word "usual" and that the proposal did not give enough
time in changing work schedules, but section 6.04, deal-
ing with overtime pay on rotating shifts, was agreed
upon.
At this meeting on April 25, the Union did not agree
to Logemann's proposed sections 6.05 and 6.06 because
they provided for mandatory overtime in certain situa-
tions. Mallien explained that the Company needed the
right to have work done as required by customers, even
if this meant mandatory overtime. In subsection 6.05
there was language that in order to be eligible for over-
time pay on weekends, the employee must have worked
his regular scheduled hours on his shift during the week.
weekend overtime should have no such conditions, and
with respect to mandatory overtime, the subject of 6.06,
the Union wanted mandatory overtime assigned accord-
ing to seniority (i.e., the most senior employee would be
asked to work it first, then the least senior employee
would be required to work it). The Respondent did
present a new proposal on mandatory overtime,12 and
which limited Logemann's right to require mandatory
overtime to those situations where all qualified employ-
ees on the shift refused to accept the overtime on a vol-
untary basis. After a recess for a caucus, Herald suggest-
ed limiting the amount of overtime to what is "reasona-
ble," but still assigning it on a seniority basis. Mallien
asked Herald for a definition of "reasonable," but after
discussion, and some suggestions by the Union, there still
was no agreement, and the matter was left open.
The Union agreed to Logemann's proposed sections
6.07 and 6.09, which concerned equalization of overtime
and shift premiums, respectively, and which were sub-
stantially identical to article V, section 8 and article V,
section 4, respectively, of the 1983-1984 agreement.
The Union initially refused to agree to Logemann's
proposed section 6.08, which concerned break, washup,
and lunchtime, unless the Company agreed to add lan-
guage stating that the rest and lunchtimes are paid, and
Mallien then agreed to the Union's counterproposal.
Herald then announced that he had another meeting
he had to leave for, but before leaving Mallien suggested
that the Union read the Company's proposals prior to
the next meeting so that the Union would be able to go
through all the remaining articles at the next meeting and
state whether they were acceptable, and in this way the
parties would be able to focus on the items that were
open. The parties adjourned after scheduling their next
meeting.
The Fifth Session-May 2, 1984
The same parties met again on this date and continued
discussion of Respondent's contract proposals. Pat
Herald requested and received copies of the Company's
minutes of the last two negotiation sessions, and at this
meeting the parties resumed where they left off at the
April 25 meeting with article 7-Pay, Temporary Trans-
fers, and Report Pay. Subsections 7.01, minimum pay
rates, and 7.02, a provision which would allow the Re-
spondent to unilaterally raise the wages and benefits over
the minimums, were approved by the Union. However,
the Union did not agree to Logemann's proposed section
7.03, which concerned temporary transfers, and section
7.04, which concerned report pay. Herald objected to
section 7.04 because it only guaranteed employees 4
hours of report pay whereas the Union wanted 8 hours.
It appears that article V, section 6 of the 1983-1984
agreement only guaranteed 4 hours of report pay.
The parties next discussed article 8-Hospitalization,
Medical, Vision and Disability Benefits Program.
Subsection 8.01 of Respondent's proposals here in
question provided as follows:
The Union disagreed with only this part of 6.05 in that 12 G C Exh 25.
LOGEMANN BROS. CO., 1029
8.01. The employee and Dependent Group Bene-
fit Program will be continued as follows:
1. Supplemental Accident Expense Benefit-
$300.00 per year.
2. Major Medical Expense Benefit-$150.00
deductible/$450.00 max.
3. Dental Benefit Plan-$50.00 deductible/-
$150.00 max.
4. Vision Care Benefit.
5. Life Insurance-Nine Thousand Dollars
($9,000.00).
7. Weekly sickness and accident benefits-first
day accident, first day hospital, eight day illness,
one hundred fifty dollars ($150.00) per week
fortwenty-six (26) weeks.
8. Employee will contribute twenty-five dollars
($25.00) per month for family plan.
At the initial session between the parties on April 3,
Mallien had noted that item 6, which concerned acciden-
tal death and dismemberment insurance, had inadvertent-
ly been omitted from this section. Mike Kusko stated
that the last agreement between the parties had not con-
tained a reference to the "paid prescription" plan which
the Union wanted to have included in the new contract.
The Union also wanted a comprehensive health plan (de-
scribed as an HMO) as opposed to the plan offered by
the Respondent, or, in the alternative, wanted the Com-
pany to pay the full cost of medical insurance. Respond-
ent countered that by law they no longer had to offer an
HMO, and the Union's alternative proposal was too
costly.
Subsection 8.02 regarding the limit of time an employ-
ee's benefits would continue when on layoff-the Re-
spondent wanted 2 months, the Union wanted 3, and as a
result this item remained open. However, the Union did
agree to Logemann's proposed sections 8.03 and 8.04,
which concerned termination of the group insurance plan
and employee eligibility, respectively, and which had
like provisions to article VIII, sections 6 and 7, in the
1983-1984 agreement.
The Union did not agree to Logemann's proposed sec-
tion 8.05, which concerned life insurance for retirees, but
the Union had a proposal on this issue.
Article 9 is entitled Paid Holiday. On subsection 9.01,
the number of holidays, the Union wanted an additional
personal holiday, and the Respondent wanted to elimi-
nate Good Friday and a personal day, so that the total of
holidays would be 10.
The Union agreed to Logemann's proposed sections
9.02 and 9.04, which concerned holidays that fell on the
weekend, and holiday pay equal to pay of a normal
workday, and which were substantially similar to provi-
sions in the last agreement.
The Union did not agree to Logemann's proposed sec-
tion 9.03, which concerned eligibility (days worked) for
holiday pay, because the Union wanted employees to be
eligible for such if they worked at some time during the
10 workdays preceding the holiday, whereas Logemann's
proposal required work to be performed within 10 calen-
dar days of the holiday.
On Article 10-Union Bulletin Board-Union Repre-
sentatives-Union Activities-the Respondent's proposal
under subsection 10.01 would limit the matters posted on
the board to notices of union meetings, union appoint-
ments, elections and their results. The Union wanted to
be able to post more-such as notices of social events,
grievance and arbitration results, as it was able to do
under the previous contract, and as a result this matter
was then left open, but the Union agreed with Loge-
mann 's proposed section 10.02 which concerned the
rights of International Union representatives to visit the
premises. The Union refused to agree to Logemann's
proposed section 10.03, which concerned pay for union
committeemen (to be no more than three) because the
Union wanted them to be paid for time spent in griev-
ances and bargaining and did not want them to have to
get permission in order to leave their work station or go
to other areas of the plant.
The Respondent's proposal on subsection 10.04, Union
Activity, would, in part, prohibit union activities in the
plant or on company property during working hours,
and as Herald testified the effect of this proposal would
be that grievances could only be processed either before
or after work and not on company property. Also,
Herald pointed out that if they were to agree on no
Union Security, then the Union would be unable to orga-
nize the employees or sign them up.
Article 11, Safety, and its four subsections, were
agreed to by the parties.
Article 12 dealt with Trainees-Trainee Progression-
and Apprenticeships. Subsection 12.01 merely stated that
the Company could utilize trainees to operate machines,
and the Union wanted only machineoperators who were
qualified to operate the machines.
The Union did not agree to Respondent's proposed
section 12.02, which concerned trainee progression, be-
cause the Union wanted the CNC lathe and CNC mills
classifications added, but subsection 12.03, regarding a
3joint apprenticeship committee, was approved.'
Pension matters are the next considerations under Arti-
cle 13, and subsection 13.01, wherein the Company
agreed to make payment to the I.A.M. National Pension
Fund for each employee, was approved, and which was
virtually identical to a like provision in the last agree-
ment. However, the Union did not agree to the remain-
ing four subsections concerning the pension plan. The
Company wanted to continue the present 35-cent-per-
hour contribution to the pension plan while the Union
wanted to increase it to 45 cents per hour (subsection
13.02). The Company wanted to prohibit the Union from
changing the pension plan without the Company's prior
written consent if the change would increase the Compa-
ny's financial obligations to the plan or might do so (sub-
section 13.03). The Company also wanted the right to
cancel payments to the plan if the plan discriminated
against employees based upon union activities (subsection
13.04). Moreover, if the Company's obligation to make
payments to the plan were canceled because of such dis-
13 Subsection 12 03 was incorrectly numbered 12 02 on the Company's
initial proposal.
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crimination, the Company offered to make direct pay-
ments to employees with at least 1 year of seniority at
the same 35-cent-per-hour rate, with the hope that they
would each establish an Individual Retirement Account
("IRA") (subsection 13.05). Herald stated that he would
ask for a legal opinion from the Union's attorneys con-
cerning section 13.04. In addition, as to section 13.05, the
Union thought employees should be eligible for the
direct 35-cent-per-hour payment as soon as they complet-
ed probation and should not have to wait 1 year. Herald
testified that at this meeting on May 2, he informed the
Company that he had no authority to make decisions on
these pension proposals because such matters were con-
trolled and governed by the Union's Pension Board in
Washington.
Article 14 of Respondent's proposals is entitled Coop-
eration and Discipline. The Union agreed to Logemann's
proposed subsection 14.01 which concerned employee
cooperation, but the Union would not agree with Loge-
mann's proposed subsection 14.02, which concerned dis-
cipline, because it disagreed with Respondent's proposed
definition of "just cause." Subsection 14.03 proposed that
under certain circumstances the disciplinary action
would be in the sole discretion of the Company, and the
Union would not agree to this. Herald testified that in
the past the Union had arbitrated cases where they felt
the penalty was too severe. As a result of these objec-
tions 14.02 and 14.03 were left open.
Article 15 pertained to Waiver of Bargaining, and sec-
tion 15.01 provided that the entire agreement between
the parties is contained within the contract,' and each
party waived the right to bargain on any subject covered
in the agreement, on any subject not in the agreement, or
subjects that may not have been within the knowledge or
contemplation of the parties. The Union did not agree to
this proposal.
Rules of Construction was the subject matter of article
16, and in section 16.01 the Respondent proposed that in
construing the agreement, past practice shall not be con-
sidered except to the extent necessary in order to con-
strue a provision that is found to be ambiguous, and past
practice shall not be a part of the agreement. Section
16.02 set forth the guidelines as to what constituted past
practice. It appears that Herald was not completely clear
in his mind as to the meaning of these proposals and was
unfamiliar with the concept of a "zipper" clause, and
therefore both sections were left open.
The Union agreed to Respondent's proposed section
16.03, which defined the use of the word "he" to include
female and male employees and which was substantially
similar to provisions in their last contract.
The Union refused to agree to Logemann's proposed
article 17-The Termination Clause-because the Union
wanted a contract of longer than 1 year and wanted the
contract to become effective retroactive to April 1. Mal-
lien stated that the Company was flexible on the length
of the contract, but wanted the contract to become effec-
tive only when agreement was reached.
After a recess for a caucus, the Union withdrew its
agreement to Respondent's proposed section 14.01,
which concerned employee cooperation. Herald ex-
rectly thought it had been taken from the last contract.
Section 14.01 was then declared open, and following a
general discussion of the pension plan, management-
rights clause, and open shop, Herald said that he would
check with the Union's attorney concerning Respond-
ent's proposed section 10.04 (a no-solicitation rule). The
Union also raised the question of "roadman" pay, and
whether the employee(s) currently in that position would
take a 30-cent pay cut if that classification was removed
from the contract.
Next the parties again discussed Respondent's pro-
posed section 1.02 (the management rights clause).
Herald stated that he had a problem accepting the
clause. Mallien replied that the Company would "hang
tight" for the clause unless the Union had a very good
reason to change it. The Union stated it was worried
about work hours and Herald asked the Company to
show why it needed to change the old clause on this sub-
ject.
Next, at the negotiating session on May 2, the parties
discussed the Union's proposal submitted to Respondent
at the April 12 meeting.' 4
The initial proposal by the Union asked for 1 addition-
al holiday, as aforestated, but it was rejected because the
Company had already proposed reducing holidays to 10.
The second proposal of the Union stated that the
Company was to pay all insurance in full, but Respond-
ent was unwilling to do so in light of the escalating cost
of insurance, and Logemann wanted the additional cost
to be shared by employees. Herald further proposed
adding an HMO option which the Company also reject-
ed.
The Union's third proposal was to increase life insur-
ance of active employees to $10,000, and retirees to
$5,000. The Company indicated it might be willing to in-
crease the insurance for active employees to $10,000 but
was not willing to make any increases for retirees.
The fourth proposal of the Union was to extend full
insurance coverage to age 65 for retired employees and
their dependents. The Company stated that it was more
important to try and take care of the employees who
were working.
The next four proposals by the Union were as fol-
lows-(5) increase sick and accident benefits to $175 a
week for 26 weeks; (6) increase pension contribution by
$.10 an hour; (7) increase wages by 5 percent; and (8)
group legal insurance coverage. The Respondent reject-
ed these proposals. Obviously, they all called for addi-
tional monetary contributions from the Company.
The Respondent rejected the Union's ninth proposal to
calculate vacations on an April to April basis rather than
a June to June basis (which had been the practice for
years). The Company had already proposed continuing
the June to June method of calculation. In addition, the
only apparent reason the Union had proposed the April
to April method was because the last contract expired on
March 31. However, Respondent pointed out that the
new contract would be effective when agreed to, and
not retroactive to April 1.
plained that he had only agreed to it because he incor- 14 G C Exh 22
LOGEMANN BROS . CO., 1031
The Company also rejected the Union's 10th and final
proposal which was to leave the remainder of the con-
tract the same.
After going through the Union's proposal, Mallien
made the statement that Respondent felt there were three
key areas they had to have in order to arrive at a con-
tract, and they were-no union security, no dues check-
off, and acceptance of the Respondent's proposed man-
agement-rights clause in order that Respondent have
maximum flexibility and to be competitive in the market.
At this point Herald made Mallien an off-the-record pro-
posal that was apparently not taken as such by Respond-
ent. Nevertheless, Herald asked Mallien whether Re-
spondent would agree to the old contract (1983-1984
agreement) without any changes, if the Union would
agree to the Respondent's proposed management-rights
clause and eliminate the union shop and dues checkoff.
Mallien replied that there was this possibility, and that he
would go back and check on the same.
Herald said that he did not like the portion of Re-
spondent's proposed' management-rights clause which
recognized the Company's right to demote employees
(section 1.02(E)). The parties then discussed how the
Company could treat an employee who was not per-
forming properly if it did not have the right to demote.
The parties then agreed to a date and time for the next
meeting and adjourned.
The Sixth Session-May 9, 1984
Herald stated that Mallien's minutes for May 2nd
should not have contained his question as to whether Re-
spondent would agree to the old contract if the Union
agreed to the Respondent's proposed management-rights
clause and to their proposal for an open shop because
this statement was made by Herald "off the record."
Mallien replied that he did not believe Herald had made
this statement off the record and the Company had taken
his statement at face value. However, the subject became
moot when Mallien, stated it made no difference as the
Company was rejecting this union offer.
Mallien then distributed three amended company pro-
posals concerning sections 3.04(d), 5.03, and 7.03, and the
parties briefly discussed such proposals. In conjunction
with 3.04(d), the proposal gave Respondent the right to
retain employees in layoff situations not in accordance
with seniority if the employees had multiple skills.
Herald was under the impression 3.04(d) had been
dropped, but Mallien dispelled this notion by informing
him that the only way it could be dropped would be for
the Union to agree to subsections (a) through (c), but the
Union objected on the basis that all union people would
be laid off if the new company proposal on this matter
was accepted.
With regard to Respondent's revised section 5.03 Mal-
lien stated that vacations of 6 or 7 weeks were excessive
and never should have been put into the contract, and
the Company wanted to limit vacations' to a maximum of
5 weeks, but due to the fact. that employees had nearly
earned their 1984-1985 vacations prior' to the expiration
of the 1983-1984 agreement, Respondent Logemann was
willing to propose that eligible employees continue to
accrue 1984-1985 vacation at the old and higher rates
through May 31, 1985, and the 5-week maximum would
not apply until the 1985-1986 vacation year. Herald
argued that since it was only to be a 1-year contract
(which had not yet been agreed upon), the Company
should not be trying to negotiate a schedule that would
not apply until the 1985-1986 vacation year. The Union
was unwilling to agree to this proposal.
Respondent's revised section 7.03 gave the Company
additional flexibility to make temporary transfers, but the
Union objected and stated that it wanted temporary
transfers limited to 20 working days per year rather than
30 consecutive calendar days as proposed by the Compa-
ny. In addition, the Union wanted temporary transferees
to a higher paying job to be paid at the higher applicable
rate for all work performed in that higher paying job
during the temporary transfer, whereas the Company
had proposed the higher rate of pay only if the employee
worked a full shift in the higher paying job. Mallien ex-
plained that the Company was unwilling to do this and
pointed out that employees have 10 days of pay rate pro-
tection when temporarily transferred to a lower paying
job and that it was therefore unfair to expect Respondent
to pay at the higher rate for the entire shift when the
employee only works a few hours at the higher paying
job. In addition, since employees were continually
moving back and forth in various jobs, and if the Com-
pany was required to keep track and pay for the exact
number of hours worked in each higher paying job
(where less than a full shift was involved), the account-
ing burden on the Company would be heavy. The Com-
pany therefore rejected the Union's suggestion.
During this meeting on May 9, Mallien also proposed
two additional changes. First, Mallien stated his willing-
ness to restore Good Friday as a paid holiday-thus,
there would be 11 paid holidays. Second, Mallien con-
firmed the response he had given to the Union at the
prior bargaining session and stated his willingness to
"grandfather" the employee who was then employed as
the "assembler," and pay him at the 30-cent-per-hour
higher "roadman" rate for so long as he performed road-
man work. Respondent's initial contract proposal had in-
cluded elimination of the roadman classification from the
contract.
At about this point in the meeting, Herald stated that
he did not think the Company cared about the employ-
ees; that the Company was trying to break the Union;
that the Company was not bargaining in good faith; and
that there was no use talking any further, and they might
as well go to Federal mediation. Mallien replied that the
Company was very serious about its proposed changes
and that the Company wanted substantial changes or
there would be no contract.
The Seventh Session-May 29, 1984
The same parties met again on May 29 with Federal
Mediator Scott Blake in attendance. Mallien gave Blake
a copy of all of the Company 's minutes of the negotia-
tion sessions. Blake met separately with the Union and
then brought the parties together.
Blake asked for a statement of the issues, and Herald
said that the Union understood that the Respondent has
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
financial problems and that the Union was willing to
make concessions to help the Company financially, but
would not agree to eliminate the provisions for union se-
curity. Herald then accused the Respondent of trying to
break the Union, stated that the Company had shown
some interest in the various union proposals from time to
time, but then had forgotten about them. He concluded
by saying that the Union was willing to negotiate.
Mallien replied that Respondent 's position was set
forth in its contract proposals which it was ready to sign,
but that there were three very important threshhold
items-( l) elimination of union shop so that employees
could have freedom of choice, (2) the Company would
no longer deduct union dues from paychecks, and (3) the
Company insists on its management -rights clause and
other management prerequisites for purposes of flexibil-
ity. Federal Mediator Blake told the company represent-
atives that the Union would be giving serious consider-
ation to their positions and that the Union was going to
call a meeting of the employees before contacting Blake
to set up another meeting . The parties then adjourned.
The Eighth Session-July 6, 1984
This meeting was also held at the Mediation Services
office and chaired by Commissioner Blake, but the par-
ties did not meet across the table. Herald told Blake that
since the last session he had ascertained from the unit
employees their feeling that the Respondent's manage-
ment-rights clause was too severe , and that they had to
have a union-shop provision . Blake then informed the
Company of the above, but that the Union was willing to
discuss economic items such as vacations , holidays, and
wages. Mallien explained to Blake that the Company had
already made proposals on these subjects . Blake then
asked whether the Company would agree to the union-
security , checkoff, seniority , and layoff provisions of the
1983-1984 agreement . Mallien, in turn, asked whether
the Union would agree to the Respondent's proposals on
the other items.
Blake returned with a written proposal from the Union
to eliminate checkoff, replace the union-shop clause with
a maintenance-of-membership clause and to otherwise
continue the terms of the 1983-1984 agreement.
Mallien asked what the Union 's position was concern-
ing Respondent 's proposed management-rights clause and
Blake replied that the Union had rejected it because it
was too all-encompassing . After a caucus , Mallien ad-
vised Blake that the Company 's final offer was the con-
tract it had proposed , but including the various changes
that had been agreed upon.
After conferring with the union representatives, Blake
returned and informed the Company that the Union had
left to file unfair labor practice charges. The company
representatives then also left.
The Pay Increase-January 1985
On January 1985, as reflected by the record testimony
and stipulated by the parties, Respondent gave a 41-cent-
an-hour across-the-board raise to all employees in the
bargaining unit without notifying the Union prior thereto
or affording the Union the opportunity to bargain over
the raise . The reason advanced by the Respondent for
granting the raise at the time it did was because of an
increase in sales. Supervisors were instructed to tell the
employees whom they supervised the reason for the
raise.
The Ninth Session-January 28, 1985
The same parties met again except that Attorney Lau-
rence Gooding, Jr. had replaced Mallien for the Compa-
ny. At this session Herald stated that the Union wanted
to renew the 1983-1984 agreement , but that he no longer
had the same authority as he had had 6 months previous-
ly, because of the filing of the Board charge in this case,
and now all agreements had to be referred to the Inter-
national Union.
After a recess, Herald said that the Union would agree
to a contract with a wage freeze through February 1986,
on the same terms and conditions as the 1983-1984
agreement , and that the Union would be willing to drop
all unfair labor practice charges. However, Attorney
Gooding replied that the management rights clause and
open shop were important issues with the Company.
Herald then stated , as he had done in previous meetings,
that Loge'mann was trying to "bust the Union." Gooding
answered that the Company only wanted to give em-
ployees a free choice as to whether they wanted to join
the Union or not, and also explained that in the past it
had lost some employees because of the existence of the
union-security clause. Herald then stated that if the Re-
spondent still wanted the same terms as before, the par-
ties were wasting their time . Gooding replied that the
Respondent was willing to negotiate , but again empha-
sized the importance of the Company's proposals con-
cerning management rights and open shop. Herald then
explained that he had taken Respondent 's proposal to the
union membership twice and it had been turned down
both times.
After a recess, Gooding stated that if neither party
was going to change their positions, they might as well
adjourn until the unfair labor practice , hearing, which at
the time was scheduled for February 25, 1985. The par-
ties then adjourned. i s
Final Arguments and Conclusions
Section 8(d) of the Act, which defines the duty to bar-
gain , does not compel either party to a collective-bar-
gaining relationship to agree to a proposal or to make a
concession . Therefore, insofar as mandatory subjects of
is While Respondent contends that Herald was uninformed on the
issues, and lacked experience , it is noted that both Tallafuss and
Glowinska gave very little detailed testimony regarding what transpired
at the bargaining sessions even though they were present at all of them
and Mallien, who was the chief negotiator and who was apparently avail-
able to the Respondent, did not even testify On the other hand, Herald
testified in considerable detail regarding the events of the negotiation ses-
sions , and did so quite candidly and consistently considering the nature
and length of his testimony As noted, if there were mistakes it was obvi-
ously the confusion of a witness recalling a complicated and complex se-
quence of events after an inordinate amount of time had elapsed Mike
Kusko also testified for the General Counsel in the same candid and un-
equivocal fashion and his testimony, as did Herald's, remained firm de-
spite vigorous cross-examination
LOGEMANN BROS. CO., 1033
bargaining (generally relating to wages, hours, and terms
and conditions of employment), the Act does not require
either party to yield or compromise its position. In this
respect, the Supreme Court in NLRB v. American Na-
tional Insurance Co_ 343 U.S. 395 (1952), stated:
[T]he Board may not, either directly or indirectly
compel concessions or otherwise sit in judgment
upon the substantive terms of collective bargaining
agreements.
The Court further stated in H. K Porter v. NLRB, 379
U.S. 99 (1970):
It is implicit in the entire structure of the Act that
the Board acts to oversee and referee the process of
collective bargaining, leaving the results of the con-
test to the bargaining strengths of the parties . .. .
While the parties' freedom of contract is not abso-
lute under the Act, allowing the Board to compel
agreement when the parties themselves are unable
to agree would violate the fundamental premise on
which the Act is based--private bargaining under
governmental supervision of the procedure alone,
without any official compulsion over the actual
terms of the contract.
It also is clear that it was the intention of Congress to
permit (within limits) employers and unions to utilize
their relative economic strengths vis-a-vis each other, as
part of the bargaining process. As pointed out by the Su-
preme Court in NLRB v. Insurance Agents, 361 U.S. 477
(1960).
The presence of economic weapons in reserve, and
their actual exercise on occasion by the parties, is
part and parcel of the system that the Wagner and
Taft-Hartley Acts have recognized . . . the truth of
the matter is that at the present statutory stage of
our national labor relations policy, the two fac-
tors-necessity for good faith bargaining between
parties, and the availability of economic pressure
devices to each to make the other party incline to
agree on one's terms-exist side by side.
As indicated, although it is not illegal for a company
to engage in hard bargaining, Section 8(a)(5) of the Act
nevertheless requires the company to bargain in good
faith which is essentially defined as a willingness to enter
into a contract. NLRB v. Insurance Agents, supra at 485.
Thus, although a company may use its relative strength
to press for contract terms favorable to itself, it may not
use its strength to engage in futile or sham negotiations
with the intention of never reaching an agreement.
NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th
Cir. 1960). As stated in Abingdon Nursing Center, 197
NLRB 781, 787 (1972):
[G]ood faith, or want of it, is concerned essentially
with a state of mind . . . . That determination must
be based upon reasonable inference drawn from the
totality of conduct evidencing the state of mind
with which the employer engaged into and partici-
pated in the bargaining process . . . . All aspects of
the Respondent's bargaining and related conduct
must be considered in unity, not as separate frag-
ments each to be assessed in isolation.
Counsel for Respondent argues that the evidence in
this case established that throughout the negotiations Lo-
gemann engaged in hard bargaining based upon the, as-
sessment of its economic strength, and the Company was
fully entitled to seek the most advantageous contract it
could. Moreover, that movements were made in certain
areas by Logemann, but that little, if any, movement was
made by the Union, and it was the Union that engaged
in surface bargaining, not the Company-that the Re-
spondent offered numerous changes to its proposal and
offered concessions on almost every substantive language
change offered by the Union to the Company's initial
proposal, and if it is contended that if Logemann failed
to explain each and every one of its proposals at the bar-
gaining table , it is because the Union did not ask for ex-
planations as to why Logemann was advancing specific
proposals. It is further argued by the Company that they
continually indicated their willingness to bargain on all
of its proposals, but open shop, elimination of checkoffs,
and management rights, being the three areas where it
was least flexible, and the Union's failure to make specif-
ic language counterproposals after the parties initially ran
through their respective offers, including counterpropos-
als concerning the management-rights clause, prevented
Logemann from showing movement in many areas be-
cause, to do so, would be "bargaining against itself."
The Company also contends that the Union had not
prepared for negotiations prior to receiving Logemann's
reopener notice, and the Union's business representative,
Pat Herald, then failed to prepare properly after receiv-
ing the notice. It was further pointed out by the Re-
spondent that Herald had only been a business represent-
ative for 5 years, had little negotiation experience, had
never been involved in contract negotiations at this
Company, did not study the 1983-1984 agreement prior
to the first negotiation session (although he may have
"read it through'") or, as became obvious, by his own ad-
mission , at any subsequent time, rarely referred to the
1983-1984 agreement' during the negotiations, and did
not even discuss the 1983-1984 agreement with the em-
ployee members of ' the union bargaining committee.
Moreover, maintains the Company, not only was Herald
unable to give coherent reasons for his objections to var-
ious Logemann language proposals at the bargaining
table, he was even unable to articulate his objections
after having had the opportunity to prepare for trial. i 6
I am in agreement that Respondent's first evidence of
bad faith (in the totality of events) was demonstrated
prior to even going to the bargaining table. As indicated,
the distribution of the questionnaire in early 1984 to so-
licit so-called ideas to improve plant efficiency was, in
effect, merely a guise to gather information for company
16 The Respondent also notes in its brief specific articles and sections
of its initial proposal wherein Herald disagreed, refused to discuss,' or did
not understand, and/or where the Company modified its position Several
such instances have been detailed in the earlier portions of this decision
and others will be discussed later on
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strategy in the upcoming negotiations , and despite the re-
luctance of company officers to admit same , there can be
little doubt that Respondent composed and distributed
the questionnaire before it formulated its initial contract
proposals , and this was revealed at the first bargaining
session where the Company distributed selected re-
sponses to the questionnaire , and in so doing readily in-
ferring that at least some of its contract proposals were
formulated and based on such responses . The Company
points out that no questions were asked on the survey
concerning specific contract proposals to be raised
during negotiations , and- no attempts were made to deter-
mine the extent of employee support for positions es-
poused by the Union , but admittedly , at the first bargain-
ing session , Logemann shared a sample form question-
naire with the Union and discussed the various responses
to the questionnaire.
As indicated , in Obie Pacific, 196 NLRB 458 (1972),
where the employer attempted to obtain its employees'
sentiment for a provision in its existing contract, and
with such information the employer hoped to persuade
the union to change or modify it. The Board , in finding a
violation , stated:
[T]hat the issue was not whether the Respondent
intended to rid itself of the union or to obtain indi-
vidual agreements from individual employees,
rather . . . whether an employer may attempt to
erode a union's bargaining position by engaging in a
direct effort to determine employee sentiment rather
than to leave such matters to the agent of the em-
ployees . . . . Respondent's obligation to bargain
with the employee's exclusive agent demands that
he accept and respect the exclusivity of that
agency-while, under appropriate circumstances, an
employer may communicate to employees the rea-
sons for his actions and even for his bargaining ob-
jective, he may not seek to determine for himself
the degree of support, or lack thereof, which exists
for the stated position of the employees' bargaining
agent. If we were to sanction such efforts, we
would impede effective bargaining.
Part of the task facing a negotiator for either a
union or a company is effectively to coalesce an ad-
mixture of views of various segments of his con-
stituency, and to determine, in the light of that
knowledge, which issues can be compromised and
to what degree. A systematic effort by the other
party to interfere with this process by the other
party by either surreptitious espionage or open in-
terrogation constitutes clear undercutting of this
vital and necessarily confidential function of the ne-
gotiator. It is indeed designed to undermine the ex-
clusive agency relationship between the agent and
its collective principals.
The information sought by Respondent from the em-
ployees in the instant case should have been properly ob-
tained from the Union as the questionnaire interfered
with the exclusivity of the Union's agency.
The next evidence of bad faith is revealed by the fact
that at the very first meeting on April 3, Respondent an-
nounced its discontinuance of the payment for all partici-
pants in the grievance process, and also the discontinu-
ance of the payment to employee members of the union
bargaining committee for time spent in negotiations. 17
The General Counsel's witnesses testified that Mallien
stated both practices were eliminated as of this very
meeting and no open discussions of either issue was had
by the parties. Further, their testimony, along with the
Respondent's own notes, tend to demonstrate that the
elimination of the two processes had already been decid-
ed beforehand, and at least by the April 3 meeting. Pat
Herald testified that Mallien simply stated that Respond-
ent would no longer pay for involvement in either proc-
ess, and Mike Kusko's testimony corroborated Herald.
Kusko testified that near the end of the session, he asked
for clarification. Kusko asked if Respondent meant the
discontinuance for this particular session or future ones,
and then specifically asked if it was a proposal to cease
payments on these items or was it being done now. Mal-
lien replied that the Respondent was not paying and
starting right now. It appears that neither Kusko nor any
of the other employee bargaining committee members
were paid for the April 3 session nor any of those held
thereafter. More importantly, the above conclusion that
as of April 3 the Respondent unilaterally ceased payment
for grievance processing and participation in negotia-
tions, is also borne out by Respondent's own witnesses
and its own minutes taken by Respondent's agents Mal-
lien and Glowinska, as previously indicated.
Counsel for Respondent points out that pay for time
spent in contract negotiations had previously been paid
in accordance with article III, section 8 of the 1983-1984
agreement (G.C. Exh. 16), and article II, section 1 of the
1983-1984 agreement required pay for time spent proc-
essing grievances, but 'that Logemann specifically termi-
nated the 1983-1984 agreement and its provisions in a
timely fashion prior to April 3, 1984, 'and Logemann's
new contract proposal contained no provision requiring
pay for time spent in negotiations (or in processing griev-
ances). It is further argued by Respondent that because
pay for time spent in contract negotiations is a provision
for the benefit of the Union, it is therefore similar to
checkoffs and union security, and automatically ceases to
have any affect when a contract expires following termi-
nation, and all without any obligation on the part of the
employer to bargain to impasse. Moreover, the obliga-
tion to pay for time spent processing grievances termi-
nated when the 1983-1984 agreement expired but regard-
less, as of the date Logemann unilaterally implemented
its final contract proposal, there can be no, question that
it no longer had an obligation to pay for'time, spent in
grievances. 18
17 There was only one grievance processed often April 3 and the Re-
spondent paid for all time spent on it However, that was only because it
chose to have the grievances addressed on company time, but it made it
clear to the Union that with the next grievance none of the participants
would be paid
18 Although not specifically alleged in the complaint, the issue as to
whether Respondent 's decision to cease paying for time spent in the pres-
entation of grievances was fully litigated, and it is obvious that Respond-
ent has notice of this issue in view of the stipulation entered into on same
as set forth in the General Counsel's opening statement
LOGEMANN BROS. CO., 1035
The Board held in Axelson, Inc., 234 NLRB 414, 415
(1978), enfd. 599 F.2d 91 (5th Cir. 1979), that a provision
in an expired contract" providing payment for griev-
ance time, cannot be unilaterally changed, and the Board
also found no relevant distinction between an employee's
involvement in contract negotiations of grievance han-
dling. The Board further held that the past practice of
reimbursement to employee negotiators for lost produc-
tion wages, and wages paid to employees during the
presentation of grievances, were mandatory subjects of
bargaining and the unilateral decision to terminate such
payments was a violation of Section 8(a)(5). It stated:
These union related matters inure to the benefit of
all the members of the bargaining unit by contribut-
ing to more effective collective bargaining represen-
tation and thus vitally effect the relationship be-
tween the Employer and employee.
It has also been recently held by the Board that in the
absence of waiver, even fringe benefits survive the expi-
ration of a bargaining agreement unless impasse is
reached during the bargaining over the proposed
changes to the benefits. See General Tire Co., 274 NLRB
591 (1985); and Arno Moccasin Co., 274 NLRB 1515
(1985).
- In light of the established past practice of Respond-
ent's paying the employee members of the negotiation
team and for union people in presenting grievances, cou-
pled with the expired contract mandating pay for all
times spent in such matters-Respondent's unilateral dis-
continuance of these payments under the circumstances
described above, add to the totality of Respondent's ac-
tions in assessment as to- its overall conduct.
As stated, in determining whether or not a employer
has engaged in bad-faith surface bargaining, one must ex-
amine the totality of the party's conduct including "the
previous relationship between the parties, antecedent
events explaining behavior at the bargaining table, and
the course of negotiations constitute the raw facts for
reaching such a determination." NLRB v. Truitt Mfg.
Co., 351 U.S. 149, 155 (1956). Therefore, particularly rel-
evant to a determination of an Employer's lack of good
faith are its related unfair labor practices or other actions
which undercut the Union's status as a bargaining repre-
sentative, and its overall conduct at the bargaining table,
which might conceal a purported strategy to make bar-
gaining fail. The Board held in Borg-Warner Corp., 198
NLRB 726 (1972):
Rigid adherence to proposals which are predictably
unacceptable to the Union may indicate a predeter-
mination not to reach agreement, or a desire to
produce a stalemate, or in order to frustrate bar-
gaining and undermine the statutory representative.
I am in agreement that applying the principles ennun-
ciated above to the facts of this case, with a careful anal-
19 The union and employer in Axelson, Inc had been party to a succes-
sive number of bargaining agreements, and the dispute involved arose in
January 1976, when negotiations for the 1976-1978 bargaining agreement
began.
ysis of the proposals put on the bargaining table by the
Respondent, and the positions taken on behalf of such,
calls for the conclusion that the Respondent engaged in
bad-faith surface bargaining.
At the first bargaining session, as indicated, the Com-
pany announced unilateral changes which were unlawful,
but, even more importantly, by doing so set the tone of
the bargaining relationships and sessions that followed,
and at this time it also presented its contract proposals
which, inter alia , duly expanded- Respondent's preroga-
tives under their management-rights clause, and ' which,
in turn , seriously curtailed the Union's effectiveness.
More precisely, under the proposed management rights
clause Respondent would vest the Company with the
following rights: (1) to allow supervisors to do any of
the unit work; (2) to subcontract unit work; (3) to make
all assignment of work and hours; (4) to grant wage in-
creases, promotions, and demotions; (5) to discontinue
the business in whole or in part; (6) to relocate in whole
or in part; and (7 to sell, assign, lease, or merge or reor-
ganize all or part of the Company.2G
Counsel for Respondent argues in its brief that Loge-
mann proposed the broad management-rights clause be-
cause it wanted to increase its flexibility in order to
remain competitive, and in order to make production de-
cisions quickly in response to customer demands-that
the relative narrowness of the management-rights clause
in the 1983-1984 agreement had led to numerous griev-
ances by the Union, and also was proposed to eliminate
or cut down the need in responding to so many griev-
ances.
It is recognized, of course, that insisting on a broad or
comprehensive management-rights clause is not per se a
violation of the Act, but the Board has consistently
found violations where the employer insists upon a con-
tractual provision designed to exclude the union from
having any voice in decisions which affect the terms and
conditions of employment of its members . United Con-
tractors Inc., 244 NLRB 72 (1979). Particularly, as here,
no real justification or explanation, though repeatedly
sought by the Union, was ever given for such a broad
clause other than for "flexibility" and in order "to be
competitive."
The Respondent also proposed the abolishment of
union security and dues checkoff. Respondent's justifica-
tion at the bargaining table was its belief that the em-
ployees should have a freedom of choice. While the in-
sistence on the exclusion of the above items is not in and
of itself a violation, the reason for the exclusions must be
analyzed in order to determine whether or not the pro-
posal was advanced in good faith, and in this regard it is
noted that the past several contracts between the parties
have contained a union-security provision and the Re-
spondent also had deducted union dues as well as, other
items (bonds, United Way, etc.) from the paychecks of
its employees, but at the hearing before me the Respond-
ent stated that the reason it proposed the deletion of both
union-security and checkoff was in order to keep skilled
employees who, did not want to join the Union. When
20 See G C Exh 19-art. I, subsec 102
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
asked as to the time period when Respondent begin to
have problems of retaining employees because of the
union-security provision, the response was in the middle
of 1975. However, no testimony was given as to any im-
mediate employee dissatisfaction with the Union, nor
was there any evidence of any recent exodus from the
Union. Quite the contrary, after meetings with the mem-
bers of the bargaining unit, Business Agent Herald told
Respondent that the employees wanted union security
and checkoff, and to this information there was no evi-
dence by Respondent of any sentiment in opposition to
joining the Union.
Respondent's plant superintendent, John Tallafuss, also
maintained that losing good employees was the reason
for eliminating union security. However, the minutes
taken by Personnel Director Glowinska (G.C. Exh. 11)
and those taken by Mallien, as aforestated, are void of
any such reference. I am in agreement that Respondent's
purported reason for elimination of union security is not
supported by the evidence. Moreover, the same can be
said for Respondent's proposed elimination of dues
checkoff. While Respondent deducted moneys from em-
ployees for savings bonds, United Way, etc., and while
also proposing to deduct and submit to designated banks
certain funds for employees' "IRAs" (see G.C. Exh. 19,
p. 15, art. 13.05), the Company still proposed the elimina-
tion of union security. The inconsistency herein belies
any good faith with respect to such a proposal.
As stated above, proffering a broad management-rights
clause with no union security and dues checkoff are not
per se illegal, but where you have proposals which the
Respondent could reasonably foresee would not be ac-
quiesced in by the Union, especially where such propos-
als are made without adequate explanation or justifica-
tion, can amount to a take-it-or-leave-it bargaining situa-
tion and must be considered as part of the employer's
overall conduct bearing on whether there is good faith,
and Respondent's take-it-or-leave-it attitude with respect
to these key issues-most important and essential to the
Union-constitutes persuasive evidence of Respondent's
lack of desire to conduct any meaningful negotiations,
but to obtain agreement solely on its own terms. See A-1
King Size Sandwiches, 265 NLRB 850 (1982).
The Respondent was not willing to bargain except on
its own terms is also revealed by Respondent's contract
proposals on other issues: (1) the designation of a perma-
nent and an alternative arbitrator (as opposed to selection
from a list of five provided by FMCS); (2) exception to
the layoff system whereby strict seniority applied (Re-
spondent would be able to retain two nonsenior employ-
ees of its choice); (3) maximum vacation time for em-
ployees with 20 days or more years seniority at 20 days
paid (as opposed to the previous 35-day maximum); (4)
mandatory overtime at the discretion of Respondent; (5)
paying temporarily transferred employees at a higher
rate only after a full day at the higher rate (instead of
from time of transfer); (6) restricting use of the union
bulletin board to union meeting notices and elections (in-
stead of for union official appointments, arbitration hear-
ings or results, or union events); (7) restricting union rep-
resentatives' access to Respondent's facility to times
when the Company president grants permission (as op-
posed to mere clearance with front office); (8) forbidding
union business during working hours unless specifically
provided in the collective-bargaining agreement; (9) lim-
iting jury duty pay to 10 days (as opposed to unlimited);
(10) maintaining wages in 14 of 16 job classifications and
reducing wages in the other 2; (11) the Company's pro-
posal on no strikes included a prohibition on "unfair
labor practice strikes"; and (12) the Company proposed a
strong zipper clause (art. 15) and a clause prohibiting the
consideration of past practice (art. 16). Most of these
proposals were different from the same items contained
in the expired agreement in that they either reduced ben-
efits previously enjoyed or restricted rights enjoyed
under the last contract.
Although the Company did proffer quite a number of
changes and revisions in some of their proposals, all set
forth previously herein, I am in agreement that they
were on relatively minor issues and mainly were in actu-
ality "cosmetic" so as to give the negotiations some basis
of legitimacy. For the most part the modifications
seldom encompassed proposals or suggestion by the
Union, but were merely ostensible changes in language
and which in several instances had no real effect on the
overall proposal .21
Moreover, as also indicated, Respondent's recalcitrant
posture and bad-faith bargaining is further demonstrated
by repeated statements at various times that it would be
"their agreement" on "one at all" [sic] Herald gave cred-
ited testimony to the effect that on April 12, when he
asked to discuss the Union's proposals, Mallien replied,
"He had to have the Company's proposalV" Later, when
Herald informed Mallien that it was difficult for the
Union to take all the changes he was making-Mallien
then replied "it is this contract or none." Moreover, Re-
spondent's own witness, plant superintendent John Talla-
fuss, who attended all the negotiation sessions, admitted
that during the negotiations, and especially when the
management-rights clause and the union security were
discussed, Mallien would then make the statement that
"the Company wants substantial changes or there will be
no contract." Furthermore, since Mallien himself did not
testify there is no direct denial of these statements attrib-
uted to him.
Further evidence of Respondent's bad-faith bargaining
can also be seen in its treatment of the Union's explorato-
ry offer at the May 2 meeting. Herald asked Mallien
what the Company's position would be if the Union
agreed to their management-rights clause, no union secu-
rity or checkoff, but with the rest of the contract remain-
ing the same. During negotiations Mallien had continual-
ly stressed how important these issues were to the Com-
pany and that they must be dealt with in the new con-
tract. However, at the next session the offer by the
Union was rejected outright by Respondent. I am in
21 See Respondent's proposals and modifications on temporary trans-
fers, overtime, and vacations (GC Exhs 27(a), (b), (c), and G.C Exh
19, pp 7-10). Although new proposals were submitted, they were, in es-
sence, quite similar to the original proposals on these subjects Sec 3 05,
subset A was agreed to by the Company after adding the word "volun-
tary " Sec 5 07 was agreed to by the Company when the phrase "for any
reason" was inserted
LOGEMANN BROS CO., 1037
agreement that certainly here was an open opportunity
accorded by the Union to Respondent in order for them
to obtain the three main objectives Mallien had main-
tained were imperative to their operations, and yet the
offer was summarily turned down, and in so doing clear-
ly reveals Respondent's preconceived intentions not only
to frustrate bargaining, but to rid itself of the Union, and,
as pointed out, there can hardly be any other reason for
the Respondent's rejection of the Union's offer as it
would give the three changes it persistently claimed to
desire the most.
At the session on July 6, 1984, the Union was also
willing to make modifications so as to change its insist-
ence on a union-security clause to a maintenance of
membership clause, and to eliminate checkoff. It also let
it be known that it was willing to discuss the manage-
ment-rights clause with Respondent and, if it had prob-
lem areas, the Union would be willing to help in the res-
olution of them. This overture by the Union was also
promptly dismissed by the Respondent-their response
was that the Company had proposed a contract, and this
was the Respondent's final offer including the changes
that already been agreed upon.
It is undisputed that on January 1, 1985, the Company
unilaterally implemented a wage increase to all shop em-
ployees.
Counsel for Respondent argues that prior to January 1,
1985, Logemann implemented its final contract proposal
and that one of the clauses contained in that proposal,
section 7.02, provided that wages and benefits set forth
therein were minimums and the Company could from
time to time institute change or establish benefits and/or
wages that are in excess of the minimums provided.
Moreover,' that subsection 1.02(E) of Logemann's pro-
posed management-rights clause, by its terms, "vested
entirely and exclusively in the Company . . . [t]he right
to make wage increases," and thus there can also be no
dispute that a general wage increase may unilaterally be
granted pursuant to these sections. Therefore, argues Re-
spondent, their January 1, 1985 wage increase can only
be an unfair labor practice if there had been no good-
faith impasse reached prior to its implementation of its
final contract proposal on or about July 6, 1984. More-
over, says Respondent, the General Counsel can hardly
argue that the parties were not at impasse following the
July 6, 1984 session with the Federal mediator as the
Union left that meeting stating that it was going to file
unfair labor practice charges with the Board, and the
Union had previously claimed, even as far back as the
sixth bargaining session on May 9, 1985, that it did not
appear that further bargaining was useful-that the
Union had demonstrated an unwillingness to move on
those matters which the Company was relatively firm
and the Union had ever refused to make substantive
counterproposals, and therefore, impasse had been
reached. It is also argued by the Respondent that unilat-
eral increases had been granted under former contracts
without prior consultation with the Union-that article
VIII, section 1 of the 1983-1984 agreement refers to the
wage rate tables as "minimums." Thus, even under the
expired contract, as interpreted through the use of past
practice, Logemann could grant unilateral wage in-
creases. Counsel for Respondent further points out and
argues that after the last bargaining session , but prior to
January 1, 1985, Logemann's financial situation changed
sufficiently due to an increase in production orders in the
fall of 1984, so that it could afford to grant the 41-cent-
per-hour wage increase at issue here, and also Logemann
wanted its wages to remain competitive and wanted to
show its appreciation to the employees, and these reasons
were explained to the employees verbally and, in part, in
writing. Moreover, the record evidence is also uncontra-
dicted that Logemann simultaneously granted a wage in-
crease to all nonunit employees effective January 1, 1985,
thus further undercutting any inference that the January
1, 1985 increase had an antiunion motivation.
It is urged by the General Counsel that the granting of
the wage increase constitutes a per se violation of the
Act, as well as being additional evidence of Respondent's
bad-faith surface bargaining.
In making my final evaluation here, it is, of course,
well established that an employer's unilateral change in
existing terms and conditions of employment, in the ab-
sence of a true impasse in negotiations, are a violation of
its duty to bargain in good faith. However, even assum-
ing, arguendo, that there was a bona fide impasse, the
employer may only unilaterally implement changes rea-
sonably encompassed by those that have been placed on
the bargaining table.22 In the instant case the wage
matter had not been put on the table, and it is also abun-
dantly clear that the parties were not at impasse after the
meeting of July 6, 1984, and especially so inasmuch as
there had been no real discussion or bargaining as con-
templated by the Act of either the Respondent's or the
Union's contract proposals.23 Clearly, it had been Re-
spondent's objective from the very start to either have its
contract proposal or nothing, as previously noted and
yet the Union, up and until the last meeting on January
28, 1985, manifested a willingness to modify proposals
and to continue meeting, and both of which were reject-
ed by the Respondent. Moreover, at the bargaining table
the Respondent had proposed no wage increase, thus the
raise could not have been an item previously offered to
the Union, and one that the Respondent could put into
effect.
The Respondent argues in its brief, as aforestated, that
they gave the wage increase pursuant to proposals that
had been part of its initial contract offer. However, as in-
dicated, to make such an argument now, flies in the face
of the position it took at the hearing. There the Respond-
ent merely asserted that due to an increase in business it
gave a pay raise, and at no time did Respondent proffer
22 One of the circumstances which the Board insists upon in such situa-
tions, is that the employer 's unilateral change must be consistent with the
employer's previous proposal to the union of changes in the expired con-
tract. See Stone Boat Yard, 264 NLRB 981 (1982)
23 In its decision in Taft Broadcasting Co, 163 NLRB 475, 478 (1967),
the Board has described a bargaining impasse as follows
Whether a bargaining impasse exists is a matter of judgment. The
bargaining history, the good faith of theparties in negotiations, the
length of the parties in negotiations, the importance of the issues or
issues as to which there is disagreement , the contemporaneous under-
standing of the parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an impasse in bargain-
ing existed
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
any evidence as to any section of their contract being
from the course of the raise. In fact, John Glowinska tes-
tified that the Company made no proposals with respect
to wage increases during the negotiations here in ques-
tion (the Company did not feel like putting one in), and
Plant Superintendent John Tallafuss testified that the Re-
spondent's past practice was to negotiate wage increases
during the contract sessions.24
In the final analysis and in summary of this case, there
can be little doubt that from the onset Respondent was
bent on obtaining an agreement favorable only to itself,
and to achieve that objective by rendering the Union im-
potent as the employee's effective bargaining agent.
Moreover, as for the Union's proposals, there was very
little that resembled discussion and bargaining on these
matters, and Respondent's inflexibility and steadfastness
on the subjects of management rights, union security and
checkoffs are issues that strike at the heart of the Union's
ability to effectively represent its members, and the rigid
proffered proposals on these three issues, the pre-negotia-
tion conduct of direct dealing, and the unilateral changes
announced at the first meeting along with the unilateral
wage increase on January 1, 1985, before reaching any
recognized impasse, compels the finding, based upon rea-
sonable inference drawn from the totality of this record,
that Respondent's conduct was to avoid bargaining,
absent of any good-faith effort to resolve differences, but
to reach agreement only on its own terms.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and that the Re-
spondent take the affirmative action provided for in the
order below, and which I find necessary to effectuate the
policies of the Act.
Having found that Respondent, on and since April 3,
1984, unilaterally ceased payments to employees on the
bargaining committee and to grievants and union mem-
24 The minimum rate schedules appear to be the wages of numerous
group classifications with designations as to starting pay and the provid-
ing for slight increases in 30 days and in 90 days, but there appears to be
no difference in the rates between the schedules in the immediate expired
contract and those attached to the Respondent's contract proposal here in
question
bers or officers for time spent in presentation of griev-
ances, I shall recommend that Respondent make whole
such employees and/or union members for any loss of
such payments and with interest computed under Florida
Steel Corp., 231 NLRB 651 (1977). See also generally Isis
Plumbing Co., 138 NLRB 716 (1962).
Having also found that Respondent has unlawfully re-
fused to bargain collectively with the Union, I shall rec-
ommend that, upon request, it be ordered to do so con-
cerning rates of pay, wages, hours and other terms and
conditions of employment, and if an understanding is
reached, embody such understanding in a signed agree-
ment.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The unit set forth herein constitutes a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9)(b) of the Act.
4. By bypassing the Union and dealing directly with
employees in the distribution of a questionnaire, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
5. By unilaterally ceasing payments to employees on
the union bargaining committee and to a grievant and/or
union officials for time spent in the presentation of griev-
ances, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By unilaterally implementing an increase in wages
on January 1, 1985, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
7. Respondent has refused to bargain with the Union
in violation of Section 8(a)(5) of the Act.
8. The above-described unfair labor practices are
unfair labor practices within the meaning of Section 2(6)
and (7) of the Act.
[Recommended Order omitted from publication.]