Lustrelon, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1988

289 N.L.R.B. 378 (N.L.R.B. 1988)

378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lustrelon , Inc. and Solidarity of Labor Organiza-
tions International Union . Cases 22-CA-14639
and 22-CA-14688
June 27, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On August 4, 1987, Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed cross-exceptions and
a supporting and answering 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 and to adopt the recommended Order
as modified.2
We agree with the judge's conclusions that the
Respondent violated Section 8(a)(5) and (1) by fail-
ing to supply the Union with financial information
the Union had requested and by failing to bargain
generally in good faith with the Union. In so
doing, we agree with the judge's finding that the
Respondent claimed an inability, rather than an un-
willingness, to meet the Union's economic demands
and thereby became obligated to support this claim
by providing the Union with the supporting finan-
cial data the Union had requested. In this regard,
we note that the Union presented its economic pro-
posals to the Respondent at the parties' first bar-
gaining session on March 3, 1986.3 Thereafter, the
Respondent's negotiator, Cole, responded to that
proposal at the parties' third bargaining session on
March 27 by reading aloud a prepared statement of
the Respondent's position. As more fully set forth
in the judge's decision, the statement indicated,
inter alia, that the Respondent was engaged in "a
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
2 The judge inadvertently omitted reference to the unlawful discharge
of Diego Fernandez and the unlawful suspension of Rolando Fernandez
from the expunction provision of his recommended Order We shall
modify the provision accordingly
The General Counsel has requested a visitatonal provision authorizing
the Board, for compliance purposes , to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure subject to the su-
pervision of the U S court of appeals enforcing the Order . In the circum-
stances of this case , we find it unnecessary to include such a clause See
Cherokee Marine Terminal , 287 NLRB 1080 (1988)
a Hereafter, all dates refer to 1986 unless noted otherwise
highly competitive industry and large profits per
piece are practically non-existent." The statement
characterized the Union' s demands as the sort that
"would make any company in this industry unprof-
itable," and suggested that the Union "withdraw all
of your demands from the table and come back
with a new set of demands which take into account
a wage freeze." Cole, in reading the statement, fur-
ther indicated that the next bargaining session
scheduled for March 31 was canceled as nothing
could be accomplished "until after you have re-
moved these outrageous demands . . . and begun
to negotiate in a more reasonable fashion." After
reading this statement, Cole presented the Re-
spondent's economic proposal, which called for,
inter alia, a 3-year wage freeze, the discontinuance
of the 3 days per year personal leave, and the
freezing of the Respondent's contributions to medi-
cal coverage at the then-current level. The Union's
negotiator, Perez, responded that he would be able
to go along with the freeze proposal provided that
the Respondent produced its books and records
justifying this type of proposal. Cole denied the re-
quest.
Thereafter, there was a 3-month hiatus in bar-
gaining . Bargaining resumed, and at the fifth bar-
gaining session on July 23, the Respondent present-
ed new economic proposals. The new proposals in-
cluded, inter alia, a wage increase of 1 percent per
year for employees with 1 year seniority. Perez, in
response, told Cole "you got to be kidding me"
and Cole said "no . . . this is a legitimate offer,
that this was more than the company could
afford." Perez again requested the Respondent's
books and records and Cole again denied the re-
quest.
Based on the above, we find that the Respondent
claimed an inability to meet the Union's economic
demands and was therefore obligated to supply the
Union with the requested financial data to support
that claim. In so doing, we note that an inability to
pay need not be expressed with any particular
"magic words" so long as the words and conduct
are specific enough to convey such a meaning. At-
lanta Hilton & Tower, 271 NLRB 1600, 1602 (1984);
Monarch Machine Tool Co., 227 NLRB 1265 (1977).
See also Nielsen Lithographing Co., 279 NLRB 877
(1986). We find that the Respondent's conduct and
statements, noted above, are tantamount to a
claimed inability to pay. We particularly note that
the representations in the Respondent's prepared
statement must be read in the context of Cole's
later characterization of the Respondent's econom-
ic offer, which was less costly than that proposed
by the Union, as being "more than the company
could afford." Accordingly, we agree with the
289 NLRB No. 52
LUSTRELON, INC.
judge that the Respondent violated Section 8(a)(5)
and (1) by failing to provide the Union with the fi-
nancial data it requested.
As noted, we further agree with the judge's find-
ing that the Respondent violated Section 8(a)(5)
and (1) by failing to bargain generally in good faith
with the Union. In this regard, applying the criteria
set out in Atlanta Hilton & Tower, supra, we con-
clude that the totality of the Respondent's conduct
throughout the course of its bargaining evidences
an intent to frustrate the bargaining process rather
than a sincere purpose to reach agreement . See also
Houston Country Electric Cooperative, 285 NLRB
1213 (1987). Thus, we note particularly the dis-
criminatory warnings issued to all employee-mem-
bers of the negotiating committee and the discrimi-
natory treatment of union activists Diego and Ro-
lando Fernandez. We further note that at the bar-
gaining session of March 27, the Respondent's ne-
gotiator, Cole, canceled the next scheduled bar-
gaining session and conditioned further bargaining
on the Union's withdrawal of its demands. Finally,
as set forth above, the Respondent refused to pro-
vide relevant financial data despite a claimed inabil-
ity to meet the Union's demands . We conclude that
by the above conduct the Respondent evidenced an
intent to frustrate the bargaining process and failed
to meet its obligation to bargain in good faith with
the Union.4
The General Counsel has excepted to the judge's
failure to include in his recommended Order a pro-
vision extending the Union's certification year for a
1-year period. We find merit in this exception. It is
well established that when a party refuses to bar-
gain during the certification year, the Board will
extend the certification year to prevent that party
from gaining an advantage from its failure to fulfill
its bargaining obligation, and the extension normal-
ly given is for the period that will provide the ag-
grieved party with a full year of actual bargaining.
See generally Colfor, Inc., 282 NLRB 1173 (1987),
enfd. 838 F.2d 164 (6th Cir. 1987); Golmac Plastics,
234 NLRB 1309 fn. 4 (1978), remanded 592 F.2d
94 (2d Cir. 1979), enfd. per curiam 600 F.2d 3 (2d
Cir. 1979). In the present case the record shows
that the Respondent was engaged in overall bad-
faith bargaining essentially from the outset of the
certification year. We therefore find it appropriate
to extend the certification year for a 1-year period
running from the date that the Respondent begins
to bargain in good faith. We shall modify the
judge's recommended Order accordingly.
4 In these circumstances , we find it unnecessary to pass on the judge's
finding that the Respondent 's proposals were of a regressive nature or to
rely on his citation to Retchhold Chemicals, 277 NLRB 639 (1985). But
see Retchhold Chemicals, 288 NLRB 69 (1988)
379
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lustrelon, Inc., Edgewater, New Jersey,
its officers, agents , successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
"(c) On request, bargain in good faith with the
Union as the exclusive bargaining representative of
the employees in the following appropriate unit on
terms and conditions of employment and, if an un-
derstanding is reached, embody it in a signed
agreement. The Union's certification year shall
extend 1 year from the date that such good-faith
bargaining begins. The appropriate unit is:
All production and maintenance employees, in-
cluding shipping and receiving employees, but
excluding all office employees, clerical em-
ployees, administrative employees, executives,
guards, maintenance men, professional employ-
ees, supervisors as defined in the Act and all
other employees of Respondent."
2. Substitute the following for paragraph 2(d).
"(d) On request, provide the Union with the fi-
nancial data it requested to enable it to verify the
Respondent 's assertion that it was financially
unable to meet the Union's bargaining demands."
3. Substitute the following for paragraph 2(e).
"(e) Remove from its files any reference to
warnings given employees on SOLO's bargaining
committee and to the separate warnings given
Diego and Rolando Fernandez and all references
to the unlawful discharge of Diego Fernandez and
to the unlawful suspension of Rolando Fernandez,
and notify all these employees in writing that this
has been done and that evidence of the unlawful
acts will not be used against them in any way."
4. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN STEPHENS, dissenting in part.
I would find all the violations found by my col-
leagues with the exception of the refusal-to-
produce-information violation and the overall sur-
face bargaining violation. I recognize this to be a
very close case , and I agree that there is no one set
of "magic words" through which a claim of inabil-
ity to pay might be expressed; but I cannot con-
clude that, in context, the particular expressions on
which my colleagues rely amount to such a claim.
Without that violation, I would not find that the
Respondent's conduct amounted to overall surface
bargaining, i.e., an intent not to reach an agree-
ment.
380 DECISIONS 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 issue warnings to any of our em-
ployees in order to discourage them from support-
ing Solidarity of Labor Organizations International
Union (SOLO).
WE WILL NOT discharge or suspend any employ-
ee to discourage support for SOLO.
WE WILL NOT discharge any employee to dis-
courage the filing of any unfair labor practice
charges with the National Labor Relations Board.
WE WILL NOT refuse to bargain collectively with
SOLO and WE WILL NOT refuse to provide it with
needed financial data it requested.
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 offer Diego Fernandez his job back
and make him whole, with interest, for all losses of
earnings and of other benefits he suffered as a
result of our having unlawfully discharged him.
WE WILL make whole Rolando Fernandez, with
interest, for all losses of earnings and of other bene-
fits he suffered as a result of our having unlawfully
suspended him from our employ for 1 week.
WE WILL, on request, bargain in good faith with
SOLO, as the exclusive bargaining representative
of the employees in the following appropriate unit
on terms and conditions of employment and, if an
understanding is reached, embody it in a signed
agreement. The Union's certification year shall
extend 1 year from the date that such good-faith
bargaining begins. The appropriate unit is:
All production and maintenance employees, in-
cluding shipping and receiving employees, but
excluding all office employees, clerical em-
ployees, administrative employees, executives,
guards, maintenance men, professional employ-
ees, supervisors as defined in the Act and all
other employees of Respondent.
WE WILL, on request, provide SOLO the finan-
cial data it requested to enable it to verify our as-
sertion that we were financially unable to meet
SOLO's bargaining demands.
WE WILL remove from our files all references to
all unlawful warnings issued to members of
SOLO's negotiating committee , to Diego Fernan-
dez and to Rolando Fernandez, and all references
to the unlawful discharge of Diego Fernandez and
the unlawful suspension of Rolando Fernandez, and
WE WILL notify them that this has been done and
that evidence of the unlawful acts will not be held
against them in any way.
LUSTRELON, INC.
C. John Cicero, Esq. and Debra J. Cosgrove, Esq., for the
General Counsel.
Larry M. Cole, Esq. (Cole & Cole), of Jersey City, New
Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON , Administrative Law Judge. The
complaint in these cases , which were consolidated for
hearing , alleges that Lustrelon , Inc. (Respondent) has
violated Section 8(a)(1), (3), (4), and (5) of the National
Labor Relations Act (the Act). Respondent 's answer
denies these and also the underlying factual allegations.
The specific issues raised in the pleadings are whether
Respondent (1) issued warnings to employees and dis-
charged two of them because of their union activities, (2)
discharged one of those employees also because he said
he would file an unfair labor practice charge , and (3) re-
fused to bargain collectively with Solidarity of Labor
Organizations International Union (SOLO).
The hearing was held in Newark , New Jersey, on 2
and 3 March 1987 . On the entire record , including my
observation of the demeanor of the witnesses , and after
due consideration of the briefs filed by the General
Counsel and Respondent , I make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
The pleadings establish, and I find, that Respondent
manufactures lamps , and that in its operations annually it
meets the Board 's nonretail jurisdictional standard. I also
find, based on the fact that SOLO had been certified in
Case 22-RC-9536 as the exclusive collective- bargaining
representative for Respondent's production and mainte-
nance employees, that SOLO is a labor organization as
defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
About 350 production and maintenance employees are
employed by Respondent at its plant in Edgewater, New
Jersey. Until January 1986, they had been represented
for many years by a labor organization, referred to in the
record in this case as Local 298. One of the General
Counsel 's witnesses, alleged discriminatee Rolando Fer-
nandez, testified that Respondent's plant manager had,
about 1984, spoken to him about his becoming a Local
LUSTRELON, INC.
298 delegate and that Fernandez then became the dele-
gate.
The last contract negotiated by Respondent and Local
298 became effective in 1983, for a 3-year term. About
the same time, new owners took over Respondent's busi-
ness . In late 1985, SOLO petitioned for an election in
Case 22-RC-9536, seeking to replace Local 298 as bar-
gaining agent . Diego Fernandez , one of the alleged dis-
criminatees in this case, testified without contradiction
that he was one of the original and most active support-
ers of SOLO and that he had been told, during the
course of SOLO's organizational effort by two of Re-
spondent's supervisors, Joe Violante and Pasquale Rose,
that he and the other SOLO supporters were wasting
their time as Respondent has always done pretty much
what it wanted to do. In its answer, Respondent admit-
ted that Joe Violante and Pasquale Rose are supervisors
and its agents . The statements attributed to them by
Diego Fernandez had been made more than 6 months
before the first unfair labor practice charge in this case
was filed and are not alleged as independent violations of
the Act.
An election was held on 10 January 1986 pursuant to
an agreement of the parties approved by the Regional
Director of Region 22. SOLO won and, as noted above,
was certified on 22 January 1986 as exclusive representa-
tive of Respondent 's production and maintenance em-
ployees. All dates hereafter are for 1986 unless stated dif-
ferently.
B. Warnings Given to Employees on SOLO's
Negotiating Committee
After SOLO's certification as representative, its presi-
dent, Edmundo Perez, and Respondent's attorney, Larry
Cole, agreed to hold the first negotiation session on 3
March. Cole also agreed to Perez' request that Respond-
ent release five employees from work to assist him in the
negotiations. Perez agreed that when they were finished
on 3 March these employees would return to work.
They were not to be paid by Respondent while serving
on SOLO's committee.
The first session was held on 3 March at a Holiday
Inn near Respondent's plant. Cole and Respondent's vice
president, Walter Weil, were present for Respondent;
Perez, assisted by the employee committee, negotiated
for SOLO. The negotiations were in English. Perez
translated them into Spanish for the benefit of the em-
ployees of SOLO's negotiating committee. As discussed
further below, SOLO presented its economic and other
demands. One of the alleged discriminatees, Diego Fer-
nandez, served on the negotiating committee. He
brought up, through Perez, safety issues for discussion at
the session. Respondent agreed to set up with SOLO a
safety committee and that provision therefor would be
included in a collective-bargaining agreement, "subject
to language." The meeting ended about noon. The mem-
bers of SOLO's committee did not return to work then,
but stayed with Perez to discuss the negotiations and to
prepare for the next session.
Perez testified without contradiction that later on 3
March, Cole telephoned him to state that he thought the
employees would be returning to work that day. Perez
381
informed Cole that he was reviewing proposals with the
employees to see how flexible SOLO would be in subse-
quent sessions.
Negotiations resumed on 13 March. The meeting be-
tween Respondent's representatives, Weil and Cole, with
SOLO's president, Perez, and the employee committee
ended that day before noontime. Perez then told Weil
and Cole that the employees on SOLO's negotiating
committee would remain with him to review the
progress of the negotiations. The parties agreed on 13
March to meet again on 27 and 31 March. The employ-
ees on the committee stayed with Perez on the afternoon
of 13 March and did not return to work.
The parties met again on 27 March. As discussed in
further detail below in another section, Respondent had
on 27 March proposed a 3-year wage freeze, informed
SOLO that there was no reason to meet on 31 March as
earlier scheduled , and that it was canceling that session.
Respondent informed SOLO that it expected SOLO will
take into account Respondent's demand for a wage
freeze. Perez asked for financial data, as discussed in fur-
ther detail below, and his request was denied. The meet-
ing ended about noontime. Again, the employees on
SOLO's committee remained with Perez and did not
return to work. No further sessions were scheduled or
held until 27 June. SOLO and Respondent exchanged
correspondence respecting SOLO's request for financial
data.
On 16 May, alleged discriminatee Diego Fernandez
was given a written warning by his immediate supervisor
and was asked to sign it. The warning was for excessive
absenteeism . He refused to sign the warning as, in his
view, the dates on which he was absent from work were
dates on which he had been excused from work, either
because he was participating in negotiations as a member
of SOLO's committee or because he was receiving medi-
cal treatment . Fernandez wrote Respondent that same
day to protest the warning, asserting in his letter that the
warning was nothing more than harassment because of
his activities on behalf of SOLO. He noted in that letter
that 4 of the days cited in the warning were spent on
contract negotiations. There is no evidence that he re-
ceived a response to his letter.
The General Counsel called Vice President Walter
Weil as a witness. He testified that Diego Fernandez and
the other employees on SOLO's negotiating committee
were issued warnings for absenteeism for the days they
attended bargaining sessions and that he authorized the
issuance of those warnings because he had understood
that those employees were to return to work at the end
of each meeting.
On 20 October, Respondent's attorney, Cole, wrote
SOLO's president a letter, reading in relevant part as fol-
lows:
Some time ago you filed an unfair labor charge
with the National Labor Relations Board which al-
leged in part that written warnings for attendance
had been given to members of your Committee.
These warnings included days that the Committee
was negotiating. You may recall that the individuals
concerned did not return to work in the afternoons
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the negotiating sessions despite the fact that the
sessions had concluded in the morning . Since the
appropriateness of the warning was not clear, the
warnings were removed from the files of the Com-
mittee members unilaterally by the Company. Ap-
parently you were never notified of this.
Please be advised that warnings have been removed
and no action has been taken based upon absences
on the days that the Committee was negotiating and
that the Committee members were present at the
negotiations.
None of the employees who served on SOLO's com-
mittee and who received warnings, as Weil testified,
were ever notified by Respondent that those warnings
had been removed from their personnel files or that the
warnings were rescinded.
The evidence presented by the General Counsel estab-
lishes prima facie that Diego Fernandez and other em-
ployees on SOLO's negotiating committee were issued
written warnings to discourage their support for SOLO.
The warnings were not issued until after the negotiations
between SOLO and Respondent had become badly
strained. They were issued without prior notice to the
employees or to SOLO's president. They were issued at
Vice President Weil's direction, notwithstanding that he
was one of the two principal negotiators for Respondent
and was aware that the employees on the committee
were with Perez and that Respondent had not on any of
those days indicated to Perez that the employees on
SOLO's committee were subject to discipline. The infer-
ence to be drawn from all the evidence before me is that
Weil was sending SOLO a clear message by these warn-
ings that its insistence on financial data and its overall
bargaining position were not to Respondent 's liking. Re-
spondent thus had issued these warnings because these
employees supported SOLO. Respondent suggests that
the warnings were issued because of a misunderstanding
and notes that, in any event, it notified SOLO in sub-
stance that they would not be given effect.
In Hanlon & Wilson Co., 267 NLRB 1264 (1983), the
Board adopted a finding that the employer there had un-
lawfully rejected doctors' excuses proffered by an em-
ployee to justify his absences from work. In the instant
case, Respondent took no action against these employees
until it became clear that SOLO was not going to aban-
don its demand for financial data. Respondent's actions
in issuing the warnings were a reversal of its earlier deci-
sion to go along with Perez' keeping the SOLO commit-
tee members with him after the conclusion of the meet-
ings with Respondent's representatives. In effect, Re-
spondent was rejecting its earlier excusals. In sum, Re-
spondent's actions in warning these employees were not
oversights. Nor are they to be excused on the basis of
Cole's letter to Perez in October. That recantation, if it
could be called that, was not timely, clear, or specific; it
contained no assurances and was not sent to any of the
employees. It did not begin to meet the test referred to
in Passavant Memorial Area Hospital, 237 NLRB 138
(1978), to constitute an effective disavowal. See also Hol-
lander Home Fashion Corp., 255 NLRB 1098 at fn. 3
(1981).
C. Warning Issued to, and Discharge of Diego
Fernandez on 23 May
The General Counsel alleges that Respondent, on 23
May, issued a warning to Diego Fernandez in order to
discourage him from continuing his support of SOLO
and discharged him that same day because he continued
his support of SOLO and also because he advised Re-
spondent of his intent to file an unfair labor practice
charge with the Board . Respondent denies these allega-
tions and asserts that it discharged Diego Fernandez
solely because he punched in another employee's time-
card.
Diego Fernandez began working for Respondent in
August 1980. He was employed as a machine operator at
the time of his discharge, about 23 May 1986.
The dncontroverted testimony establishes that he was
an active, perhaps the most active, supporter of SOLO
among Respondent's employees. Thus, he participated in
its organizational effort, having distributed 30 to 40 au-
thorization cards to his coworkers; he attended SOLO's
meetings; he was told, as earlier noted, by two of Re-
spondent's supervisors that he and other SOLO support-
ers were wasting their time because Respondent would
continue to have its own way; and he was a member of
SOLO's employee committee, participating actively at
the negotiation sessions.
He arrived at work about 7: 15 a.m . on his last day of
work and was accompanied then by his brother Rolando.
As they approached the timeclock, Respondent's plant
manager, Rafael Ricciardi, was standing about 10 to 15
feet from it and was looking at them while talking to Su-
pervisor Guiseppe (Joe) Violante. As work was sched-
uled to start 15 minutes later, Rolando Fernandez went
for coffee for himself and Diego. Diego then punched in
his own timecard and also Rolando's.
The foregoing factual recited is based on the accounts
of Diego Fernandez and Joe Violante. Their respective
accounts differ as to what occurred after Diego Fernan-
dez had punched in the timecards.
Diego Fernandez' account is as follows. Later on that
morning , his immediate supervisor, Pasquale Rose, ap-
proached him while at work and informed him that he
would have to sign a warning that was being given him
for having punched in his brother's timecard. Diego Fer-
nandez (Diego, to distinguish him from his brother, Ro-
lando) responded that he would not sign the warning as
he had not done anything out of the ordinary when he
punched in his brother's card. Suddenly, Joe Violante
appeared and told Diego to come to the office with him.
Diego did so. They went to Plant Manager Ricciardi's
office. Ricciardi asked Diego why he punched Rolando's
card. Diego responded that, what he did, he had done
many times and that his brother was in the plant with
him. Diego then told Ricciardi that if "they" continued
to harass him, he would go "to the U.S. Labor Depart-
ment (to) complain." Ricciardi became angry and dis-
charged him.
Diego Fernandez also testified that he had never been
told of any rule against punching in another employee's
timecard and that there never had been any sign posted
that pertained to any such rule. He related too that he
LUSTRELON, INC.
had, on prior occasions, punched in his brother's card in
the presence of Respondent's supervisors, and that they
had never said anything to him about his having done so.
Guiseppe Violante 's account of the events of that day
is as follows. He and Plant Manager Ricciardi were
standing near the timeclock. Ricciardi was facing the
clock; Violante was standing with his back to it. Ric-
ciardi told him that Diego had just punched in two time-
cards. Violante then saw Diego put his own card and
also his brother's card in the rack. He asked Diego why
he punched in two cards; he told Diego that he knows
the rule that anyone caught punching in two cards
would be fired on the spot. Violante then went to see
Ricciardi as he understood that all disciplinary action is
to be done through the main office. Diego was then
called to the office and given the option of quitting or of
being fired.
Violante also testified that ever since he began work-
ing for Respondent 16 years previously and until about
March 1986 there had been a sign posted over the time-
clock, which reminded employees that if any employee is
caught punching in another employee's timecard, the
penalty is immediate dismissal. He testified also that on
the day that Diego was fired the one sign posted was
one reading: "Punch your timecard only."
On further examination , Violante testified that he had
fired Diego on the spot about 7 a.m. and that, later
(about 8 a.m.), when he told Ricciardi that he had done
so, Ricciardi instructed him to bring Diego to his office
to sign a release . Violante testified that Ricciardi wanted
the release because Diego had supported SOLO.
Ricciardi did not testify; neither did Respondent's su-
pervisor-foremen, Pasquale Rose.
I credit Diego Fernandez' account. Violante's account
was hardly persuasive. It is unlikely that he fired Diego
"on the spot" and also that Diego was brought to Ric-
ciardi's office, well after the workday had begun, to sign
a release. Further, Violante's testimony that Ricciardi
wanted Diego to sign a "release" is too vague and also
illogical in that Ricciardi would have no reason to think
that Diego would gratuitously accommodate him in re-
leasing Respondent from all liability arising out of his
discharge. Moreover, it is very unlikely, as Violante's
testimony would have it, that Diego and Rolando Fer-
nandez would have flagrantly disregarded an established
rule calling for immediate discharge; it is implausible that
Diego would have punched in Rolando's card in the
presence of a plant manager with knowledge that he
would thereby lose a job he has had for almost 6 years.
Lastly, I note that Ricciardi did not testify to controvert
Diego's testimony that Ricciardi discharged him when
he said he would go the U.S. Labor Department to stop
the harassment.
The credited evidence establishes that Diego Fernan-
dez was an active supporter of SOLO; that Respondent
was aware of his support of SOLO; that there never was
a posting or other promulgation of any rule barring one
employee from punching in the timecard of another em-
ployee solely as a convenience;' that Respondent con-
' Respondent adduced evidence that, in prior years, two employees
had been discharged for incidents involving timecards One of those em-
383
jured up a "rule" as a pretext to issue a warning to
Diego Fernandez on 23 May in order to harass him be-
cause he supported SOLO, and particularly SOLO's ne-
gotiating demands; and that when Diego Fernandez
made it clear to Ricciardi that he was not intimidated by
that warning, but would protest the harassment, Ric-
ciardi discharged him.
A separate issue exists whether the evidence supports a
finding that Diego Fernandez was discharged also for a
reason proscribed in Section 8(a)(4) of the Act. The
complaint alleges that he was fired because he informed
Respondent that he intended to file unfair labor practice
charges with the Board. As just found, Diego protested
on 23 May that if Respondent continued in its "behavior
towards [him]" he "was going to go to the U.S. Labor
Department and complain what they were doing to
[him]." The most obvious thing to note, respecting his
remark, is that the National Labor Relations Board is the
agency responsible for investigating complaints by em-
ployees of harassment based on union activities. Also
noteworthy is that the Board, only a few months before
his discharge, had conducted an election among Re-
spondent's employees and certified SOLO. Lastly, I note
that the Board affirmed a finding by Administrative Law
Judge Edelman, in a case with a similar fact pattern, that
a Spanish-speaking employee's use of the term, "Labor
Department" pertained to the Board. See Book Covers,
Inc., 276 NLRB 1488 (1985). Also, the Supreme Court
has held that Section 8(a)(4) is not to be read literally but
is to be construed liberally in order to afford employees
broad protection. See NLRB v. AA Electric Co., 405 U.S.
117, 122 (1972). All these factors support the finding,
which I now make, that Diego Fernandez was dis-
charged because he informed Respondent, in essence,
that he intended to file an unfair labor practice charge
with the Board to stop Respondent's unlawful harass-
ment of him.
D. Warning and Suspension of Rolando Fernandez
Rolando Fernandez (Rolando) began working for Re-
spondent over 5-1/2 years ago. He is the most senior em-
ployee in the acid department. He had distributed au-
thorization cards for SOLO during its organizational
effort and did so although he was then a delegate for a
rival labor organization, as related above. A picture of a
SOLO committee, which included Rolando, was pub-
lished in a Hispanic newspaper. Vice President Walter
Weil was given a copy of this newspaper at a negotiating
session on 13 March. Well saw the photo then and ac-
knowledged that Rolando was an active supporter of
SOLO.
Rolando was not disciplined by Respondent on 23
May, the day his brother was issued a warning and was
discharged, as discussed above. On 29 May, Rolando was
issued a warning. The General Counsel contends that the
reason given by Respondent is baseless and that the
warning was intended to discourage his support for
ployees had punched in the card of another employee who was absent
from work that day, another had altered his own card Those incidents
do not establish that Respondent had a practice or rule requiring immedi-
ate discharge for punching in a card as was done in the instant case
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
SOLO and to provide an excuse for Respondent to sus-
pend him from work for a week , also to discourage sup-
port for SOLO. Respondent asserts that the discipline
meted out to Rolando on 29 May was unrelated to his
union activities.
Rolando's job in the acid department required him to
remove parts that were submerged in an acid bath, rinse
them in a water bath , shake off the excess liquid, and
then to take these parts to his machine for processing. As
the acid used is highly corrosive, the workers in that de-
partment wear protective clothing-rubber aprons,
rubber gloves , and so on . Rolando , as the senior employ-
ee, trained new employees in that department.
Rolando's account of the events on 29 May is as fol-
lows. He was performing his job that day in a routine
manner . His foreman, Joe Cirone , and Vice President
Well were standing about 10 feet from him. Cirone
called out to him that he was spilling water on the floor.
He responded that "this is not correct" and he told
Cirone that he is the oldest employee there and is always
careful, and that "the liquid doesn't spill." (It appears
that the job involves minor dripping, hence the protec-
tive clothing. I construe the translations of Rolando's ac-
count, as they are quoted above, as his saying in effect
that the dripping then was no more than normal.) Later
that morning , Violante told him he was fired, and that it
was not "his order." Violante told him to go with him to
the office. He accompanied Violante to the office. Weil
was there with an office employee. Rolando was told
then that he was not going to be fired but was given a
week's suspension . He was suspended a week . Later he
volunteered to SOLO to be his brother's replacement on
SOLO's negotiating committee and was present at the
next two sessions-the one on 27 June and a later one.
As noted above, Violante testified in this case. Howev-
er, he did not refer to the 29 May incident in his testimo-
ny. Supervisor-Foreman Cirone did not testify. Vice
President Weil did end his account of the 29 May inci-
dent as follows. He was standing with Foreman Joe
Cirone and observed Rolando take a piece out of the
cleaning tray in such a way that the liquid ran onto the
floor in "a nice, big flow." Weil told Cirone to tell Ro-
lando to let the pieces drip properly. Cirone did so. A
minute later Rolando again caused a spill. He did "the
exact same thing just as if he were trying to be spiteful."
Weil told Cirone to give him a warning. Cirone did so.
Later, Cirone informed Weil that the warning he gave to
Fernandez was his third and that he was due to be fired.
Weil called Respondent's labor counsel and then decided
on a 1-week suspension for Fernandez.
Other than what Weil testified to, there is no evidence
in the record to indicate that Respondent had a policy of
discharging employees summarily on the third warning.
Nor is there evidence that Rolando had prior warnings,
other than a notation to that effect on the 29 May writ-
ten warning itself.
I credit Rolando Fernandez' account. While it may be
possible, it is unlikely that an experienced employee
wearing clothing to protect himself against a corrosive
acid would splash it about. I note too that Supervisor-
Foreman Cirone did not testify to challenge Rolando's
account. In view of Rolando's support for SOLO, of
which Respondent was aware, the pretextual nature of
the warning given him and the union animus fairly to be
inferred from it, and in view of the discrimination prac-
ticed less than a week before against Diego Fernandez
and the other evidence bearing on that finding, I find
that the General Counsel has made out a prima facie
showing that Rolando Fernandez, a known supporter of
SOLO, was disciplined on 29 May because of that sup-
port. As Respondent has not presented any probative
evidence to negate this prima facie showing, I find that
Respondent warned Rolando Fernandez on 29 May and
then suspended him from its employ for a week in order
to discourage him from supporting SOLO . See Industrial
Agrico Processing, 274 NLRB 711 at fn. 2 (1985), for an
analogous holding.
E. Alleged Unlawful Refusal to Bargain
The complaint alleges that Respondent has separately
violated Section 8(a)(1) and (5) of the Act by having en-
gaged in each of four types of conduct and also by its
overall conduct. Specifically, the complaint cites the fol-
lowing acts as distinct violations; canceling meetings and
refusing to meet unless SOLO accepted Respondent's de-
mands or because SOLO had filed an unfair labor prac-
tice charge; unilaterally changing terms of employment
of unit employees; failure to furnish requested financial
data; having issued warnings to employees on SOLO's
negotiating committee; and its overall conduct. In the
brief filed with me, the General Counsel set out four
points of argument that pertained to the alleged viola-
tions of Section 8(a)(1) and (5)-the alleged unlawful re-
fusal to provide financial data; "surface bargaining," the
alleged refusal to meet because SOLO filed an unfair
labor practice charge; and alleged unlawful unilateral
changes in the employees' workweek. Respondent asserts
it never claimed inability to pay and hence contends that
it was under no duty to furnish SOLO with financial
data. It contends too that it engaged in "hard," not "sur-
face" bargaining. It denies having unilaterally changed
the workweek or refused to meet because SOLO filed
unfair labor practice charges or otherwise.
As noted above, the first negotiation session took place
on 3 March at which SOLO presented Respondent with
its demands that were framed as modifications of or ad-
ditions to provisions of the last collective-bargaining
agreement between Respondent and Local 298. For ex-
ample, three additional holidays were sought as were a
$1 yearly increase in the hourly wage rate (as contrasted
to 20 cents in the last year of the Local 298 contract),
and a pension fund contribution where there had been
none previously. In addition, ventilation, heating, and
sanitary issues were raised by SOLO. Respondent took
those demands under consideration and agreed to meet
again.
The second session took place 10 days later. Respond-
ent's representative reported that the complaint SOLO
had raised as to the facilities in the women's bathrooms
in the plant had been taken care of. Agreement was
reached on the substance of a safety committee. As to a
question raised by SOLO concerning certain layoffs, Re-
spondent produced a computerized employee list to satis-
LUSTRELON, INC.
fy SOLO that the layoff procedure it followed was cor-
rect. Respondent 's representative stated also that in the
absence of a new collective -bargaining agreement be-
tween SOLO and Respondent it intended to follow the
provisions of its Local 298. The session ended with
agreement on two more meeting dates, 27 and 31 March.
On 27 March, only Attorney Cole appeared for Re-
spondent . He read a prepared statement . Its text follows:
As you can see , I am alone here at this negotiat-
ing session . There is no one from the Company here
today. Mr. Gruodis has returned from his recent
trip to the Far East and has reviewed your demands
over the life of the three year agreement . The total
cost to Lustrelon of your current demands is
$11,319,075. The wage increases demanded alone
are $4,992,000. The medical and dental coverages
demanded are $2,376,000. Given the enormity of
these demands, it was felt that no constructive pur-
pose would be served by having Company officials
here at this meeting.
We believe that SOLO does not understand the
industry that Lustrelon operates in. The industry
itself is a highly competitive industry and large
profits per piece are practically non-existent.
While many of our employees have skills that are
important to us, there are many other people not
employed by our Company who can work for us to
the same degree of efficiency . The wages and in-
creases that you have demanded in this contract
would make any company in this industry unprofit-
able.
We respect our workers who respect us. We fur-
nish considerable work for a great many people.
Solo has come into this negotiation after an election
campaign where you raised the people 's expectation
levels so high that this Company will not capitulate
to your demands.
Lustrelon suggests that SOLO go back to the
people and tell them that the Company will not
meet their demands . I have here a set of demands
that we have prepared that we believe to be more
reasonable than yours. We request that you take
these demands back to the people and discuss the
realities of our business with them . We suggest fur-
ther that you withdraw all of your demands from
the table and come back with a new set of demands
that take into account a wage freeze.
We had previously agreed with you that we
would negotiate in our next negotiating session on
Monday, March 31, 1986. We believe that nothing
can come out of this next meeting until after you
have removed these outrageous demands of yours
from the table and begun to negotiate in a more rea-
sonable fashion. We, therefore, wish to cancel this
meeting for Monday. We will be happy to return to
the negotiating table after you have presented us
with a new set of written demands that we can
study. We will presume that these demands will be
reasonable and will take into account the wage
freeze and other items that have been discussed in
the Company's demands.
385
Cole then handed SOLO' s president, Perez , the fol-
lowing set of demands , which were referred to in the
above statement:
1. Open Shop Provision.
2. Wage Freeze for three year collective bargain-
ing agreement.
3. Eliminate three personal days currently in
force.
4. Company contribution to medical coverages to
be frozen at current level. Any increases in cost for
individual or family membership shall be paid for
by the employee.
5. Regular monthly meetings with groups of em-
ployees to discuss quality and productivity improve-
ment and methods of improvement of working con-
ditions and employees ' suggestions . Union present if
desired by SOLO.
6. In order to eliminate vandalism and theft from
Company, the Company demands the right to con-
duct random searches of any employee automobiles
on premises.
7. All vans shall not be permitted entry to the
Company premises. Any employees traveling by
vans shall be discharged at the guard check.
8. All union demands not previously agreed to
are denied.
Regarding item 8, the only proposal by SOLO that may
be said to have been previously agreed to by Respondent
was to its proposal that a safety committee be estab-
lished; Respondent agreed "subject to contract lan-
guage."
When Cole concluded his reading of the prepared
statement on 27 March , Perez translated his remarks into
Spanish for the benefit of the employees on SOLO's
committee. Perez then told Cole that he would be will-
ing to go along with the freeze proposal provided Re-
spondent produced its books and records to enable Perez
to "justify to [the employees] the reason for this type of
proposal." Cole denied the request. There is a conflict
whether Cole elaborated on that response. Perez testified
that Cole then said that there was no need to substantiate
Respondent 's denial for a wage freeze as the employees
were "standing around doing nothing." Cole testified
that he simply denied the request and did not say any-
thing further because he did not want to go beyond the
language of the typed statement he had just read. Cole
denied that he told Perez that he could verify the need
for a freeze simply by noting that the employees had
nothing to do. I credit Cole's account as it is unlikely
that he, having prepared a written statement to read at
the session with no other representative for Respondent
present to assist, would have made the off-hand comment
attributed to him by Perez. Perez testified that he and
Cole then discussed an impending layoff or a "shutdown
of some sort." Cole, however, testified that he limited his
discussion on 27 March to the statement he had prepared
and read. Perez' account of a "shutdown of some sort" is
too vague for what seems to be a subject of some impor-
tance, a plant shutdown. Perez' account is not persua-
sive. I credit Cole's.
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There was no meeting held on 31 March. Letters were
exchanged between Perez and Cole, which essentially re-
stated their respective positions, as set forth on 27
March. Cole wrote Perez on 11 June to state that SOLO
has yet to submit revised proposals and that Respondent
would meet with SOLO when it was ready to resume
negotiations with revised demands. Perez then called
Cole and they set up a meeting for 27 June. In that tele-
phone conversation, Perez told Cole that the employees
had informed him that Respondent had introduced a 4-
day workweek. Cole responded that he knew nothing
about this and that Respondent would give Perez its po-
sition on it at the next session.
On 27 June, Perez presented Cole with a set of re-
duced proposals, e.g., a 50-cent hourly wage increase
each year instead of a $1 increase; 7 sick days instead of
10. Perez testified that he then referred to the subject of
the 4-day workweek. His account is as follows. He told
Cole that he understood Cole to have said, at the outset
of negotiations, that Respondent would follow the terms
of the expired Local 298 contract until agreement on a
contract was reached with SOLO. Perez then pointed
out that the Local 298 contract provided for a 40-hour
workweek, not a 4-day workweek. Respondent's vice
president, Well, testified in response to Perez' account
that Respondent followed the management prerogative
provisions of the Local 298 contract in reducing the
workweek for some employees to 4 days and also in
shutting down the plant for the week, 30 April to 6 May.
He testified, and this without contradiction, that Cole
had given Perez written notice of the shutdown. Weil
testified further that Perez never asked to discuss the 4-
day workweek. I credit Weil's account as there is noth-
ing in the correspondence SOLO had with Cole, respect-
ing its complaints as to the negotiations, that refers to the
4-day workweek, and particularly as Perez was not hesi-
tant in that correspondence to state his complaints as to
the negotiation processes.
The parties met again on 23 July. At that session, Cole
handed Perez the following:
Employer offer
1. Three (3) year agreement commencing on date
of ratification by employees.
2. Wage increase of One (1%) per cent per year
on signing and on the anniversary dates of the con-
tract for all employees who have at least one year's
seniority at that time.
3. Company contribution to medical coverages to
be frozen at current level. Any increase in cost for
individual or family coverage to be paid for by em-
ployee. No entry into SOLO funds-continuation
with same provider (SOLO HAS NOT FOR-
WARDED INFORMATION ON PLAN AS RE-
QUESTED IN 6/27 MEETING).
4. Eliminate three personal days.
5. Open shop.
6. Regular monthly meetings with groups of em-
ployees to discuss quality and productivity improve-
ment and methods of improvement of working con-
ditions and employees' suggestions. Union present if
desired by SOLO.
7. In order to eliminate vandalism and theft from
Company, the Company demands the right to con-
duct random searches of any employee automobiles
on premises.
8. All vans shall not be permitted entry to the
Company premises. Any employees traveling by
vans shall be discharged at the guard check.
9. All union demands not previously agreed to
are denied.
Perez told Cole that he has "got to be kidding." Cole
responded that the offer was serious and that it was more
than Respondent could afford. Perez then asked for Re-
spondent's books and records and Cole denied the re-
quest, saying Respondent had already made clear its po-
sition respecting such a request.
Parenthetically, I note that Respondent's contract with
Local 298 had included union-security and dues-checkoff
provisions and allowed unit employees 3 personal days a
year.
Perez testified that later in July Cole telephoned him
to say that since Perez had filed an unfair labor practice
charge alleging that Respondent refused to bargain with
SOLO, Respondent would not meet again with SOLO
until the charge was resolved. Perez testified further that
he told Cole that SOLO had not filed any refusal to bar-
gain charge . Perez testified that he then checked with
Region 22, which advised him that SOLO had filed a
charge on behalf of Diego Fernandez.
Cole testified that he has no recollection of telephon-
ing Perez in late July and that his diary, in which he
records telephone calls and other business data, has no
entry of any such call. He testified that the only phone
calls he made to Perez in July were on 10 and 15 July,
as reflected in his diary, and that resulted in the 23 July
session discussed above.
Perez wrote Cole on 14 August to complain about Re-
spondent's refusal to produce its financial books and
records. He made no reference in that letter to a refusal
by Respondent to meet while there is pending a refusal
to bargain charge. I credit Cole's testimony, not Perez.
The absence of any assertion in Perez' letter of 14
August of any such refusal to meet tends to support the
import of Cole's testimony-that he never refused to
meet because such a charge was pending. Further, it is
unlikely that Cole would have made such a statement in
the offhanded way recounted by Perez.
The General Counsel placed in evidence a copy of a
Dun and Bradstreet report on Respondent that SOLO
had obtained. That report did not have a rating for Re-
spondent; it did contain statements that reflected slow
payments by Respondent to some of its creditors be-
tween 1 October 1985 and 1 October 1986. There was
also a notation on the report that Respondent's president
had written on 15 October that "[p]rofits for the past six
months were up."
The last negotiation session held between Respondent
and SOLO took place on 6 November. Respondent then
offered 1.6-percent wage increase for each year of a 3-
year contract. SOLO reduced its demands further. There
was discussion also of changing the method of paying
unit employees. The meeting apparently ended on a
LUSTRELON, INC.
strange note. It seems that sometime before 6 November
SOLO had asked a Teamsters union to pretend to
engage in an organizing drive among Respondent's em-
ployees; apparently SOLO was hoping that Respondent
would react by increasing its offers to SOLO to frustrate
a Teamster campaign. At the 6 November session,
SOLO accused Respondent of bringing the Teamsters on
the scene.
No further negotiation sessions were sought or held.
As outlined earlier, the complaint alleges that Re-
spondent, by each of the following matters, violated Sec-
tion 8(a)(1) and (5) of the Act:
(a) unilaterally implementing a four day work
week.
(b) cancelling meetings and refusing to meet
unless SOLO accepted its demands or because
SOLO filed charges under the Act.
(c) issued warnings to members of SOLO's bar-
gaining committee.
(d) failing and refusing to furnish requested finan-
cial information.
(e) its overall conduct.
Respecting the contention that Respondent unilaterally
reduced the workweek, the evidence is clear that Re-
spondent was committed to following the basic terms of
the Local 298 contract until it reached agreement with
SOLO on the terms of a new contract. The General
Counsel notes that the Local 298 contract provides that
the "normal" workday amounts to 8 hours and that the
"normal" workweek consists of 5 days. The General
Counsel argues then that the normal workweek consists
of 40 hours and that Respondent, by having reduced the
workweek to 4 days for some unit employees, thereby
changed their terms of employment without notice to
SOLO. Respondent points to the broad management pre-
rogative clause in the Local 298 agreement as the basis
for its claim that it had a contract right to reduce the
workweek. I note too that the Local 298 contract states
that it is not to be construed "as a guarantee of hours of
work per day, or per week, or of days of work per
week." Significantly, the record before me does not con-
tain evidence of past practice to indicate that Respondent
had been barred from implementing on its own a work-
week reduction. Such evidence is an essential element of
proof for the General Counsel. See Eazor Express, Inc.,
238 NLRB 1165 (1978). I therefore find no merit to the
General Counsel's allegation that Respondent violated
Section 8(a)(5) by unilaterally reducing the workweek of
some unit employees.
The major aspect of the second allegation is that that
Respondent violated Section 8(a)(5) by refusing to meet
because SOLO had filed charges under the Act. Based
on the credibility determination above as to the conflict-
ing accounts of Cole and Perez, that allegation lacks
merit. Part of this second allegation is that Respondent
canceled meetings; that contention is treated separately
below.
The complaint refers to the unlawful warnings to
members of SOLO's bargaining committee as unlawful
conduct engaged in by Respondent, which established
that it violated Section 8(a)(5). The complaint does not
387
allege these warnings in a separate paragraph and by
themselves to be violations of Section 8(a)(5). The Gen-
eral Counsel's brief treats them as evidentiary factors
supporting the allegation that Respondent's overall con-
duct constituted bad-faith bargaining.2 These warnings
then will be treated below in conjunction with other fac-
tors in weighing Respondent's overall conduct in its ne-
gotiations with SOLO.
The next contention of the General Counsel is that Re-
spondent unlawfully failed and refused to furnish re-
quested financial data to SOLO and, in conjunction
therewith, canceled negotiation sessions and refused to
meet with SOLO. There is no factual issue on this point.
Cole canceled the 31 March meeting and proposed a 3-
year wage freeze after having informed SOLO on 27
March of Respondent 's estimates of the total costs of
SOLO's demands; he told SOLO that its demands would
make it or any company "in this industry" unprofitable;
and he notified SOLO of Respondent's intent to defer
meeting again until SOLO takes into account, inter alia,
the wage freeze. SOLO's representative made it clear
that SOLO wanted to take into account the wage freeze
proposal and he requested Respondent to give SOLO the
necessary financial data to enable it to go back to the
bargaining unit employees. Respondent refused to furnish
the data.
In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the
employer there rejected a union 's demand for a wage in-
crease of 10 cents per hour and asserted that any in-
crease of more than 2-1/2 cents per hour would put it
out of business. When the union there asked it to
produce evidence to substantiate that statement, the em-
ployer denied the request. The Court held that the
Board's order should be enforced whereby the employer
would be compelled to furnish the financial data request-
ed. The Court noted that good-faith bargaining necessari-
ly requires that claims made by either side should be
honest claims and an asserted inability to pay an increase
is important enough to require proof of its accuracy. Re-
spondent's claims that a 3-year wage freeze is consistent
with "the realities of [its] business" and that SOLO's de-
mands would make Respondent unprofitable presumably
were made in good faith. Respondent, under the ration-
ale of Truitt, must be prepared to demonstrate that they
are honest claims . Thus Respondent, by not honoring
SOLO's request, failed to bargain in good faith. To the
same effect, see California Nevada Golden Tours, 283
NLRB 58 (1987), and Teleprompter Corp., 227 NLRB 705
(1977), enfd. 570 F.2d 4, 8 (1st Cir. 1977).
As to the allegation that Respondent unlawfully can-
celed meetings and refused to meet with SOLO, the evi-
dence discloses that Respondent canceled the 31 March
meeting but that it did meet thereafter as requested. I
find that the evidence fails to establish that Respondent's
cancellation of the 31 March meeting, by itself, was
2 In the unlikely prospect that the warnings, by themselves, were in-
tended to be alleged as a separate , distinct violation of Sec 8(a)(5), I
would dismiss such an allegation Otherwise, every act of interference
with Sec 7 rights could be stretched into a separate 8(a)(5) violation
simply because each such act can be said to have some impact on negoti-
ations
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
aimed at preventing a resolution of the underlying dis-
putes; the cancellation of the 31 March session was ancil-
lary to, and subsumed under, the allegation that Re-
spondent unlawfully refused to furnish requested finan-
cial data, discussed above.
The last issue raised by the pleadings is the most diffi-
cult to resolve-whether Respondent engaged in surface
or bad-faith bargaining . In making this determination, the
Board looks to the totality of the circumstances in which
the bargaining took place , at and away from the bargain-
ing table . Hedaya Bros., 277 NLRB 942 (1985), and cases
cited therein . More specific guidelines have also been set
out. A party may lawfully stand firm on a bargaining po-
sition he reasonably believes fair or has the strength to
achieve ; other conduct may be indicative of bad faith.
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984).
There is no litmus test that can quantitatively decide the
issue . Reasonableness or lack thereof of a party's propos-
als are not to be evaluated in determining whether a
party has bargained in good faith . See Reichhold Chemi-
cals, 277 NLRB 639 (1985 ). Section 8(d) of the Act does
not compel an employer to make concessions. Nonethe-
less, an employer is obligated to make a reasonable effort
to compose differences . NLRB v. Reed & Prince Mfg.
Co., 205 F.2d 131, 134 (1st Cir. 1953), cert. denied 346
U.S. 887 (1953). Conduct indicative of bad faith includes
delaying tactics, unreasonable bargaining demands, uni-
lateral changes, efforts to bypass the union , failing to
designate an agent with sufficient authority , withdrawal
of agreed-on provisions , and arbitrary scheduling of
meetings . See Atlanta Hilton & Tower, supra at 1603. Co-
ercive conduct coupled with regressive proposal also can
manifest bad faith. Heyada , supra.
The factual situation in the instant case places it be-
tween Reichhold Chemical, supra, where the Board found
hard bargaining and Heyada , supra, where bad-faith bar-
gaining was found . In Reichhold, the Board discounted
8(a)(1) statements by supervisors threatening discharge
and the futility of bargaining . In Rescar, Inc., 274 NLRB
1 (1985), the Board also discounted a pre - 10(b) statement
of an inebriated vice president of the employer there that
it had no intention of signing a contract.
On the one hand , I note that there is, in this case, a
virtual absence of the types of conduct noted above that
point towards bad-faith bargaining-bypassing a union
and so on. On the other hand, the coercive conduct in
this case was aimed directly at employees on SOLO's ne-
gotiating committee at the instance of Respondent's key
officials, Weil and Ricciardi , and the timing thereof re-
lates closely to SOLO's demands for financial data.
Again, on the one hand , Respondent ultimately did make
wage increase offers of 1 percent , and then 1.6 percent,
and on the other, it unlawfully refused to produce data
to substantiate its claim that SOLO's demands would
make its operation unprofitable.
There are other factors to consider. I note that Re-
spondent's contract with Local 298 contained not only
union-security provisions but also a dues check-off
clause . Yet Respondent repeatedly proposed an open
shop to SOLO. The Local 298 contract, too, called for
wage increases substantially more than the percentages
that Respondent offered SOLO. By themselves, Re-
spondent's proposals could be just hard bargaining and
ploys to induce SOLO to lower its demands . In context
with other factors , however, the regressive nature of Re-
spondent's proposals could be considered in evaluating
bad faith.
After weighing all the relevant factors and noting par-
ticularly the unlawful warnings to SOLO's negotiating
committee, the discriminatory treatment of the Fernan-
dez brothers, Respondent 's refusal to produce financial
data to back up its own representations to SOLO, and
the regressive nature of the proposals offered by Re-
spondent , I fmd that the evidence supporting the com-
plaint allegation outweigh the factors pointing towards
good-faith bargaining , e.g., its meetings with SOLO, and
its exchanges of proposals . From the totality of the cir-
cumstances , as they are reflected in the record before
me, I fmd that the General Counsel has shown , by a pre-
ponderance of the evidence , that Respondent entered
into and participated in negotiations with SOLO with an
essentially closed mind intent on forcing SOLO to capit-
ulate to its dictates and disinterested in seeking a peace-
ful resolution of its differences with SOLO.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. SOLO is a labor organization as defined in Section
2(5) of the Act and the exclusive representative of the
following unit appropriate for purposes of collective bar-
gaining:
All production and maintenance employees of Re-
spondent , including shipping and receiving employ-
ees but excluding all office employees , clerical em-
ployees, administrative employees , executives,
guards, maintenance men, professional employees,
supervisors as defined in the Act and all other em-
ployees of Respondent.
3. Respondent , in violation of Section 8(a)(1) and (3)
of the Act , has engaged in the following conduct:
(a) Issued warnings on 16 May 1986 to employees on
SOLO's negotiating committee in order to discourage
support for SOLO.
(b) Issued a warning on 23 May 1986 to Diego Fer-
nandez and discharged him from its employment on that
day to discourage support for SOLO.
(c) Issued a warning on 29 May 1986 to Rolando Fer-
nandez and suspended him from its employ for a week in
order to discourage support for SOLO.
4. Respondent, in violation of Section 8(a)(1) and (4)
of the Act, discharged Diego Fernandez on 23 May 1986
because he informed Respondent, in substance , that he
intended to file an unfair labor practice charge with the
Board to protest the warning issued earlier to him that
day.
5. Respondent, in violation of Section 8(a)(1) and (5)
of the Act, has failed and refused to bargain in good
faith with SOLO and has failed and refused to supply
SOLO with requested financial data needed to enable it
to bargain with Respondent respecting Respondent's
LUSTRELON, INC.
claim , in substance , that it cannot meet SOLO's bargain-
ing demands and yet remain profitable.
6. In all other respects , the allegations of unlawful
conduct set out in the consolidated complaint are with-
out merit.
REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
(4), and (5) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action necessary to effectuate the policies of the Act.
Accordingly , Respondent shall be ordered to offer
Diego Fernandez immediate and full reinstatement to his
former position , or if it no longer exists , to a substantially
equivalent position without prejudice to his seniority or
other rights and privileges and to make him whole for
having unlawfully discharged him on 23 May 1986; and
to make whole also Rolando Fernandez for having un-
lawfully suspended him from its employ in late May or
early June 1986 . Backpay shall be computed in the
manner prescribed in F. W. Woolworth Co ., 90 NLRB
289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Respondent shall also be ordered to remove from its
files all references to the unlawful warnings given on 16
May 1986 to employees on SOLO's negotiating commit-
tee to Diego Fernandez on 23 May 1986 and to Rolando
Fernandez on 29 May 1986; to remove from its files, too
all references to its discriminatory discharge of Diego
Fernandez on 23 May 1986 and to its discriminatory sus-
pension of Rolando Fernandez in late May or early June
1986 and to notify these employees that these steps have
been taken and that the unlawful acts will not be used
against them in any way.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed8
ORDER
The Respondent , Lustrelon, Inc., Edgewater, New
Jersey , its officers , agents, successors, and assigns, shall
1. Cease and desist from
(a) Warning employees to discourage support for Soli-
darity of Labor Organizations International Union
(SOLO).
(b) Discharging or suspending employees because they
support SOLO.
(c) Discharging any employees to discourage the filing
of unfair labor practice charges with the Board.
(d) Refusing to bargain in good-faith with SOLO and
refusing to furnish financial data requested and needed
by SOLO to fulfill its obligations as exclusive representa-
tive in the unit described as certified by the Board.
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
389
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affimative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Diego Fernandez immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions , without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them , in the manner set forth in the
remedy section of the decision.
(b) Make whole Rolando Fernandez for all loses of
earnings and other benefits suffered as a result of his un-
lawful 1 week 's suspension from employment, in the
manner set forth in the remedy section above.
(c) On request, bargain collectively in good faith with
SOLO as representative of the employees in the certified
unit, with respect to their wages , liners of work , and all
other terms and conditions of employment.
(d) Provide SOLO with the financial data it requested
to verify Respondent's assertion that honoring SOLO's
demands would render its operations unprofitable.
(e) Remove from its files any references to warnings
given employees on SOLO's bargaining committee and
to the separate warnings given Diego and Rolando Fer-
nandez and notify them all in writing that this has been
done and that the unlawful acts will not be used against
them in any way.
(f) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Post at its Edgewater , New Jersey location copies
of the attached notice marked "Appendix ."4 Copies of
the notice , on forms provided by the Regional Director
for Region 22, after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that all allegations in
the complaint of unlawful conduct that were not found
to have merit are dismissed.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."