Metta Electric

National Labor Relations Board - Board Decisions

May 16, 2007

349 N.L.R.B. 1088 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 101
1088
JHP & Associates, LLC d/b/a Metta Electric and Lo-
cal No. 1, International Brotherhood of Electri-
cal Workers, AFL–CIO. Cases 14–CA–28042 and
14–CA–28179
May 16, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On July 13, 2005, Administrative Law Judge James L.
Rose issued the attached decision. The Respondent and
General Counsel filed exceptions and supporting briefs.
The Charging Party filed cross-exceptions and an an-
swering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated 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,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
1. The judge found a broad order warranted under the
“proclivity” prong of Hickmott Foods, 242 NLRB 1357
(1979), based solely on this being the second case in
which the Respondent has been found to have violated
the Act. See Metta Electric, 338 NLRB 1059 (2003)
(Metta I), enfd. 360 F.3d 904 (8th Cir. 2004). We3 dis-
agree. As the Board recently stated, “A broad order is
certainly not warranted in every instance of recidivist
misconduct.” Postal Service, 345 NLRB 409, 410
(2005), enfd. as modified 477 F.3d 263 (5th Cir. 2007).
In finding a broad order unwarranted here, we note the
extent to which the Board’s narrow order in Metta I suc-
ceeded in restraining the Respondent from committing

1 In finding that the Respondent unlawfully refused to meet and bar-
gain with the Union, the judge found, inter alia, that the parties had not
reached a valid impasse in negotiations privileging the Respondent’s
refusal. We agree that the parties had not reached a valid impasse, both
for the reasons stated by the judge and because the Respondent’s
unlawful failure to furnish requested relevant information precluded the
reaching of a lawful impasse. See U.S. Testing Co., 324 NLRB 854,
860 (1997), enfd. 160 F.3d 14 (D.C. Cir. 1998); Decker Coal Co., 301
NLRB 729, 740 (1991); Dependable Building Maintenance Co., 274
NLRB 216 (1985).
Member Schaumber agrees that the evidence is insufficient to estab-
lish a valid impasse and finds it unnecessary to rely on the failure to
provide relevant information. While there may be merit to the Respon-
dent’s contention that the Union had no intention of agreeing to any-
thing other than its area agreement with National Electrical Contractors
Association (NECA), the record here fails to establish that fact.
2 For the reasons explained below, we will substitute a narrow cease-
and-desist order for the judge’s recommended broad Order. We will
also modify the recommended Order to conform to the remedy section
of the judge’s decision and to the Board’s standard remedial language,
and in accordance with Excel Container, 325 NLRB 17 (1997); and we
will substitute a new notice in conformity with the Order as modified.
3 I.e., Member Schaumber and Member Kirsanow.
recidivist violations. The Respondent was found in
Metta I to have violated Section 8(a)(1), (3), and (5) in
numerous ways that have not been repeated here. The
narrowing scope of violations from Metta I to this case
militates against a finding that the Respondent has a pro-
clivity to violate the Act or a general disregard for em-
ployees’ fundamental statutory rights. We also note that
the Union’s information requests have not pertained to
grievance investigations, where the withholding of in-
formation has the potential to hide other misconduct; and
there is no background of continuing and widespread
violations of a like kind. Cf. Postal Service, supra at
409–412 (imposing broad order where, inter alia, the
union’s requests pertained to grievance investigations,
and there was a background of two decades of wide-
spread and repeated information-request violations). In
sum, we find the Respondent’s recidivism, standing
alone, insufficient to warrant a broad order under the
Hickmott standard.4
2. The judge recommended that the Union’s certifica-
tion year be extended 12 months. We5 agree. In Metta I,
supra, the Board extended the certification year for 12
months. After the Eighth Circuit enforced the Board’s
order, the Union requested certain information. The Re-
spondent refused the request and refused to bargain.
Some 8 months later, the Respondent furnished some,
but not all, of the requested information and bargained
with the Union three times over the course of 2 months,
following which the Respondent invalidly declared im-
passe and refused to bargain any further. Thus, although
some bargaining took place, the Union was bargaining
without relevant requested information. In sum, since
the Board’s order in Metta I mandating, inter alia, 12
additional months of bargaining, the Union has yet to
secure a single minute of bargaining uncompromised by
the Respondent’s unlawful conduct.
Our colleague would extend the certification year for 6
months rather than 12 months. He would shorten the
Mar-Jac extension out of concern that 7 years have
passed since the Union was certified; and the Respon-
dent’s employees cannot, if they so desire, oust the Un-
ion during the Mar-Jac extension period. That is true,
and we are sympathetic to our colleague’s concern. It is

4 Member Schaumber adheres to his view in Postal Service, supra,
that a broad order was unwarranted in that case. He agrees, however,
that this case presents even weaker facts on which to issue a broad
order than did Postal Service.
In contrast to her colleagues, Member Liebman would grant a broad
order, based on the Respondent’s many violations of the Act in a rela-
tively short period of time. She would also order the Respondent to
read to its employees the notice to employees, as requested by the Gen-
eral Counsel.
5 I.e., Member Liebman and Member Kirsanow.
METTA ELECTRIC 1089
also true, however, that the Respondent’s employees
selected the Union as their collective-bargaining repre-
sentative. Since their choice was certified in February
2000, the Respondent’s bargaining has amounted to the
following: in 2000, two sessions, lasting a total of “at
most” 3-1/2 hours, almost all of which was spent “dis-
cussing the Union’s patently relevant information re-
quests,” Metta I, supra at 1066; and in 2005, 3 sessions,
during all of which the Union bargained in partial dark-
ness, i.e., with some but not all of the relevant informa-
tion it had asked for.
Our colleague appears to defend a shorter 6-month ex-
tension based on the Union’s insistence that the Respon-
dent accept the area agreement with the National Electri-
cal Contractors Association (NECA). On the other hand,
he also says that 6 months is sufficient “for the parties to
reach an agreement if, in fact, the Union is prepared to do
more than simply insist that the Respondent accept the
area agreement with NECA.” Thus, in his view, a 6-
month extension is warranted regardless of whether the
Union adheres to its position or moves away from it. In
other words, the Union’s bargaining stance is irrelevant
to the Mar-Jac extension issue. We agree. Our col-
league’s real concern appears to be that the parties may
be close to impasse. That may well be, but it is unrelated
to the Mar-Jac issue.
Moreover, under the particular circumstances pre-
sented here, to order less than a full 12-month extension
would be especially problematic. The Board ordered a
12-month Mar-Jac extension in Metta I, the Eighth Cir-
cuit enforced that order, and the Respondent refused to
comply. To reward the Respondent’s defiance of our
court-enforced 12-month extension in Metta I by short-
ening the extension to 6 months now would undermine
our own authority, show disrespect to the court of ap-
peals, and encourage further defiance of Mar-Jac orders
in future cases.6

6 Unlike his colleagues, Member Schaumber would extend the certi-
fication year for 6 months, rather than the full year recommended by
the judge pursuant to Mar-Jac Poultry, 136 NLRB 785 (1962). He
observes that the duration of the extension of the certification year
depends on the circumstances of the individual case. In fashioning an
appropriate remedy, the Board’s task is to provide “a reasonable period
of time” for bargaining “without unduly saddling the employees with a
bargaining representative that they may no longer wish to have repre-
sent them.” Wells Fargo Armored Services Corp., 322 NLRB 616, 617
(1996) (internal quotations omitted). Here, several factors militate
against a full-year extension. First, the unlawful conduct consisted of
information request violations and a refusal to meet with the Union at
reasonable times for bargaining, not a withdrawal of recognition or
coercive conduct directed to employees. Second, more than 7 years
have passed since the certification. During an extension of the certifica-
tion year, employees are unable to exercise their Sec. 7 right to oust or
change their representative.
ORDER
The National Labor Relations Board orders that the
Respondent, JHP & Associates, LLC d/b/a Metta Elec-
tric, St. Charles, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith
with the Union concerning wages, hours, and other terms
and conditions of employment.
(b) Refusing to furnish, and delaying in furnishing, re-
quested information that is necessary and relevant to the
Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the employees in the
appropriate unit.
(c) 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 affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning wages, hours, and other
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All journeymen and apprentice electricians employed
by Respondent from its St. Charles, Missouri facility,
EXCLUDING all office clerical and professional em-
ployees, guards and supervisors as defined in the Act.
The Union’s certification is extended 12 months from the
date the Respondent begins to comply with this Order.
(b) Provide the Union with the relevant information it
requested in letters dated April 26 and May 10, 2004,
January 12, and February 3 and 28, 2005, updated to the
present.
(c) Within 14 days after service by the Region, post at
its facility in St. Charles, Missouri, copies of the attached

Although Member Schaumber recognizes his colleagues’ position
that the parties only bargained three times before the Respondent de-
clared impasse he would emphasize that, during those negotiation ses-
sions, the Union was unwilling to back down from its objective that the
Respondent accept the Union’s area agreement with National Electrical
Contractors Association (NECA). During these three negotiation ses-
sions, the Union presented no real counterproposals. Indeed, the Un-
ion’s counterproposals included a proposed interim agreement which
simply extended the time until the Respondent would have to become a
member of NECA or an agreement which would have been more costly
to the Respondent than the NECA agreement. Under these circum-
stances, Member Schaumber concludes that a 6-month extension of the
certification year is appropriate. That is a sufficient time for the parties
to reach an agreement if, in fact, the Union is prepared to do more than
simply insist that the Respondent accept the area agreement with
NECA.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 26, 2004.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively and in good
faith with Local No. 1, International Brotherhood of
Electrical Workers, AFL–CIO (the Union), concerning
wages, hours, and other terms and conditions of em-
ployment.
WE WILL NOT refuse to furnish, or delay in furnishing,
requested information that is necessary and relevant to
the Union’s performance of its duties as the exclusive

7 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 Appeals Enforcing an Order of the
National Labor Relations Board.”
collective-bargaining representative of our unit employ-
ees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request, bargain with the Union as the ex-
clusive representative of our employees in the following
appropriate unit concerning wages, hours, and other
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All journeymen and apprentice electricians employed
by us from our St. Charles, Missouri facility,
EXCLUDING all office clerical and professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL provide the Union with the relevant informa-
tion it requested, updated to the present.
JHP & ASSOCIATES, LLC D/B/A METTA
ELECTRIC
Paula B. Givens, Esq., for the General Counsel.
Lawrence P. Kaplan, Esq., St. Louis, Missouri, for the Respon-
dent.
Christopher N. Grant, Esq., of St. Louis, Missouri, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This is an ongo-
ing dispute in which the Respondent has repeatedly refused to
honor it obligations under the National Labor Relations Act
(the Act). Following an initial Board decision,1 enforced by the
Eighth Circuit Court of Appeals,2 the Respondent has allegedly
continued to engage practices violating Section 8(a)(5) of the
Act (refusing to furnish requested information and refusing to
meet and bargain), which allegations were tried before me at St.
Louis, Missouri, on May 25, 2005.
The Respondent generally denied the substantive allegations
in the complaint, and affirmatively contends that the Union
never intended to reach an agreement but is trying to force the
Respondent out of business.
The record as a whole, including my observation of the wit-
ness, briefs and arguments of counsel, I make the following
I. JURISDICTION
The Respondent is a Missouri limited liability company with
an office and place of business in St. Charles, Missouri, from
which it has been engaged in the building and construction
industry as an electrical contractor. In the course and conduct of
this business, it annually receives directly from points outside
the State of Missouri, goods, products, and materials valued in

1 Metta Electric, 338 NLRB 1059 (2003).
2 Metta Electric v. NLRB, 360 F3d 904 (8th Cir. 2004).
METTA ELECTRIC 1091
excess of $50,000. The Respondent admits, and I conclude, that
it is an employer engaged in interstate commerce within the
meaning of Sections 2(2), 2(6), and 2(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Local No. 1, International Brotherhood
of Electrical Workers, AFL–CIO (the Union) is admitted to be,
and I find is, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts in Brief
On February 28, 2000, the Union was certified to represent a
unit of the Respondent’s electricians. The Respondent then
made certain unilateral changes in employee working condi-
tions and on March 15, 2000, the unit employees went on
strike. The Respondent hired replacements and the strikers were
subsequently hired by other employers whose employees are
represented by the Union. Thereafter, the Union made certain
requests for information, including the names, addresses and
telephone numbers of all strike replacements. The Respondent
refused to submit the requested information, which along with
the unilateral changes in working conditions other activity al-
leged violative of the Act led to the initial round of litigation.
As noted above, these allegations were tried before an Admin-
istrative Law Judge, whose findings were affirmed by the
Board. The Eight Circuit granted enforcement (except for the
addresses of the strike replacements), following which the Un-
ion again requested certain information and sought to bargain
with the Respondent.
Counsel for the Respondent initially refused to bargain, stat-
ing in a letter dated May 27, 2004, to the Board’s Regional
Office that “It is Metta’s position that Local 1 does not intend
to engage in ‘genuine bargaining’ as such Metta is refusing to
bargain on the same grounds as Local 1 has refused in those
other instances.” When the General Counsel’s litigation divi-
sion was considering whether to seek contempt in the Eighth
Circuit, counsel again wrote, in part, “The Employer has not
furnished information concerning the identity of its employees,
their wage rates and other such information because it is the
Employer’s well founded belief that the Union does not wish to
engage in ‘genuine bargaining’ and rather seeks the information
only to disrupt and destroy the Employer.”
Subsequent to the Board’s petition for contempt (which was
ultimately denied), the Respondent agreed to meet and did in
fact furnish some but not all of the requested information. The
parties then had three negotiation sessions in February and
March 2005. In sum, the Union proposed its area agreement
with National Electrical Contractors Association (NECA),
which the Respondent rejected on grounds that it did not want
NECA as its bargaining agent. The Respondent also rejected a
proposed interim agreement, which Union negotiators stated
could run from 12 to 18 months, and, as Larry Palazzolo testi-
fied, would be “a bridge between where they are now and the
IBEW/NECA agreement.” And finally, the Respondent rejected
the Union’s proposal which deleted NECA but which, accord-
ing to Palazzolo, the Union’s director of organizing, contained
changes that made it more costly than the first proposal. He
testified “that many of these changes were substantially more
than were in the first proposal” because “if we were deleting
NECA and the opportunities to bargain, we wanted something
in return. We feel that is (deleting NECA) is a very costly con-
cession and we wanted something in return.”
After the third meeting, Lawrence Kaplan, counsel for the
Respondent, suggested the parties were at an impasse, but that
if the Union wanted to negotiate further, he was available by
phone. The Union rejected phone negotiations.
B. Analysis and Concluding Findings.
The Respondent’s principal defense is counsel’s assertion
that the Union has no intention of agreeing to anything other
than its area contract with NECA. Given the “Favored Nations”
clause in the area agreement, for the Union to agree with the
Respondent for terms and conditions of employment lesser than
those in the area agreement would allow all the other employers
to invoke those lesser terms. It therefore follows that the Union
would not enter into such an agreement with the Respondent.
Counsel has a point and may even be correct; however, other
than his opinion, there is no evidence in the record on which to
base a finding that the Union does not in fact seek to negotiate
an individual contract with the Respondent. And, of course, the
“Favored Nations” clause is subject to interpretation should in
fact the Union agree with the Respondent to something other
than the terms of the area agreement. Counsel made the same
contention in the initial case, which was summarily rejected by
Judge Clark on grounds that counsel there, as here, cited no
case authority nor evidence to support his claim. Accordingly, I
conclude that the Respondent is not excused from its obliga-
tions under the Act to bargain in good faith with the representa-
tive of its employees.
1. Refusal to furnish information
In paragraphs 6, 7, and 8 of the complaint it is alleged that on
various dates from April 26, 2004, to February 3, 2005, the
Respondent refused to furnish, or delayed in furnishing, infor-
mation concerning the names of bargaining unit employees and
their respective wages and other benefits. The first category of
information requested by the Union on April 26, 2004, is: the
names of all bargaining unit employees from 2000 to the pre-
sent, their dates of employment and reasons for any termina-
tions, current wage rates for all bargaining unit employees on
prevailing and nonprevailing wage jobs and all wage rates from
2000, all prevailing wage reports from 2000, copies of all em-
ployee benefit plans, copies of any vacation, holiday, sick days
or cellular phone plans and accumulated vacation, holiday, or
sick days for each unit employee; and copies of personal poli-
cies and employee handbooks in effect from 2000 to the pre-
sent. Excluded was all such information already submitted.
Additionally, by letter of February 3, 2005, the Union re-
quested information relating to current employees including for
each: name, hire date, classification, wage rate, amount of PTO
accrued yearly and hourly cost to the Respondent, medical
insurance paid by the Respondent, any retirement premiums
paid by the Respondent and the hourly cost and holiday pay
costs. The Union further requested information concerning each
apprentice, including the particular program and program stan-
dards, pay scale progression, and hours needed for each pro-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
gression and the hours worked by each apprentice and the Re-
spondent’s costs.
All this requested information relates to the wages, hours,
and other terms and conditions of the Respondent’s employees.
The information is therefore potentially helpful to the Union in
forming bargaining proposals and determining whether to ac-
cept or reject proposals from the Respondent. The information
is necessary and material to the Union in its capacity as the
employees’ bargaining representative.
In NLRB vs. Acme Industrial, 385 U.S. 432 (1967), the Su-
preme Court affirmed the Board’s general holding that a union
is entitled to information necessary to perform its duty as the
bargaining representative, and specifically information which
might tend to prove the viability of grievances—that is infor-
mation which is potentially relevant to issues being grieved.
Subsequently, the Board has applied the general holding of
Acme to information requested by a union for use in collective
bargaining. E.g., Gorham House, Inc., 332 NLRB 1556 (2000).
The Respondent recognizes its general obligation to furnish
material information on request, but justifies its refusal to fur-
nish the above information on grounds that “All of the informa-
tion requested from Metta concerning the names of current
employees, individual wage rates, their dates of employment,
their status as journeyman or apprentice could have easily been
obtained from the employees directly if any attempt had been
made to contact the employees.” (Original emphasis.) It is well
settled (and held by the Judge and Board in the previous case)
that the mere fact that requested information could be obtained
elsewhere does not excuse the employer from its obligations.
Holyoke Water Power Co., 273 NLRB 1369 (1985). Since all
the information requested by the Union set forth in paragraphs
6, 7, and 8 of the complaint is clearly material and necessary
for the Union to bargain, I conclude that the Respondent vio-
lated Section 8(a)(5) by refusing to furnish the information in a
timely fashion. It is noted that when the Respondent did finally
agree to meet with the Union in February 2005, it did submit
some of the requested information, such as the names of em-
ployees; however, the information was not in a form that was
complete (no inclusive dates of employment, wage rates, or
apprentice status) or very useful. Thus even submitting some
information, I conclude that in general, the Respondent ignored
the information requests and delayed furnishing the informa-
tion. The Respondent thereby violated Section 8(a)(5) of Act.
The Respondent further defends its refusal to furnish the re-
quested information on grounds that the Union engaged in sur-
face bargaining, did even attempt to contact the replacement
employees, attempted to force the Respondent to accept the
association as its bargaining agent and when the Respondent
refused, made a proposal substantially more onerous. On brief,
Counsel for the Respondent concluded, “Since Local 1’s ac-
tions are in bad faith, Metta is released from any obligation to
supply the additional information requested by Local 1.” I re-
ject this defense. Although the Union’s tactics are in some re-
spects questionable, there is no allegation that it bargained in
bad faith or had a mind set not to reach an agreement. Further,
the Respondent offered no evidence to prove its assertion that
the Union’s request for information was for the purpose of
harming the Respondent. Grinnell Fire Protection Systems Co.,
332 NLRB 1257.
Finally, the Respondent does not contest the materiality of
the requested information or argue any kind of privilege (e.g.,
confidentially of employee personal files) which would relieve
it of the duty to furnish the information.
2. Bargaining
It is alleged in paragraph 9 of the complaint that by letters
dated April 26 and May 10, 2004, the Union requested the Re-
spondent meet with its representatives for the purpose of collec-
tive bargaining and that the Respondent refused to do so until
February 1, 2005. It is also alleged that the Respondent
breached its bargaining obligations by “insisting on bargaining
by telephone rather than face-to-face,” failing to meet at rea-
sonable times and “insisting the Union submit written conces-
sions by mail prior to any further negotiations,” and by failing
to meet since April 7, 2005.
No doubt that following the Eight Circuit’s enforcement of
the Board’s order in the first case the Respondent refused to
bargain. Counsel so stated in a letter to the Regional Office and
in a letter to litigation division. However, the parties did subse-
quently meet on three occasions in 2005 and it is fair to say
they were substantially apart on what would be an acceptable
agreement. The Respondent contends the parties were at im-
passe. Palazzolo testified that everything was negotiable, not-
withstanding that the Union’s latest proposal, deleting NECA
as the bargaining agent for the Respondent was substantially
more onerous than the area contract.
The parties last met on March 25, following which, by letter
of March 29, Palazzolo suggested to Kaplan that the parties
meet on April 8 and any morning during the weeks of April 11
and 15. Kaplan replied on March 29, listing 27 ways in which
the Union’s last proposal had differed from the area contract
and were more onerous. Palazzolo responded on March 30,
stating, “We are not going to bargain by letter. We have given
you dates we would be available. Please advise as to which date
will work for Metta.” Kaplan wrote on March 30, in part, “Be-
cause of time constraints and the cost of negotiations, Metta
proposes that the parties negotiate by telephone as is done in
many negotiations. Please contact the undersigned with avail-
able times and dates and I will arrange to have (the Respon-
dent’s owner) available to conference in.” By return letter, Pa-
lazzolo wrote, “The Union, respectfully, declines your request
to bargain by phone. . . . Local One’s last contract proposal was
geared to Metta’s request for their own agreement. The Union
is ready to hear Metta’s counter-proposal and is prepared to
bargain.” Kaplan responded on April 1: “I am in receipt of your
letter of this date. We have offered to bargain by telephone. As
per my letter of March 31, 2005. Please contact the under-
signed with your availability. This will be my last letter regard-
ing the methods of bargaining.” Palazzolo wrote back on April
6 that the Union “wants to meet face-to-face” and that the Un-
ion was ready to consider any counterproposal by the Respon-
dent. On April 7 Kaplan wrote that the Union’s proposal since
2000 had only been to increase the terms and Respondent had
nothing new to propose, but if the Union did, “please send it to
the undersigned and we will schedule a meeting to discuss it. If
you don’t have something new to propose to Metta, I must
METTA ELECTRIC 1093
assume that the parties are at impasse.” In the final letter of this
series, Palazzolo said the parties were not at impasse and “We
need, however, to meet in person to talk over a contract and not
bargain via telephone or by sending new proposals through the
mail.”
From the beginning of this dispute, the Respondent’s ap-
proach to its obligations under the Act has been one of delay,
and outright refusal, particularly following the Eight Circuit’s
enforcement of the Board order to bargain in good faith. In fact,
it is fair to conclude that the Respondent finally agreed to meet
only after the Board filed a petition for civil contempt. The
parties then had three meetings, then counsel for the Respon-
dent then suggested that they bargain over the phone. The Gen-
eral Counsel argues that by this statement Kaplan was refusing
to negotiate further except by telephone. I disagree. In his letter
a few days later, after Palazzolo said the Union wanted to meet
face-to-face, stated his willingness to “schedule a meeting” to
discuss any additional proposals by the Union.
Although demanding that the parties negotiate by phone is at
odds with Section 8(d) and is unlawful, Alle Arecibo Corp., 264
NLRB 1267 (1982), the mere suggestion that they do so is not.
That is, the parties can mutually agree to negotiate by phone,
or, indeed, agree to any other nonmandatory subject of bargain-
ing. On balance, I cannot conclude that Kaplan made more than
a suggestion and such is not an unfair labor practice.
In the same letter in which Kaplan said he would schedule a
meeting, he also wrote that if the Union had anything new to
propose “please send it to the undersigned.” This is alleged to
have been violative of Section 8(a)(5) as a demand to bargain to
bargain by mail. Beverly Farm Foundation, 323 NLRB 787
(1997). It would not seem unreasonable or unlawful for one
party to collective bargaining to suggest to the other that a pro-
posal be mailed in advance of meeting, particularly since col-
lective-bargaining agreements are complex and require some
time to study. Thus, I believe, the issue here is whether Kap-
lan’s suggestion was really an unlawful demand that the parties
negotiate by mail, or whether it was suggestion to expedite the
process when the parties should meet. Notwithstanding the
Respondent’s actions in refusing to bargain, I do not conclude
that Kaplan made an unlawful demand to bargain by mail.
I conclude that the Respondent unlawfully delayed in meet-
ing with the Union and since the final meeting on March 25,
has refused to meet and bargain with the Union. Counsel for the
Respondent suggested to the Union and argues here that the
parties are at impasse, which presumably excuses his refusal to
meet with union representatives. Although the Respondent
rejected the Union’s last proposal (and indeed many of the
provisions therein are more onerous than previous proposals)
such does not imply impasse. The Respondent did not suggest
any particular issue on which the parties were in adamant dis-
agreement, and the Union has stood willing to bargain on all
issues. And they only had three meetings. On these facts it can
scarcely be concluded that there was an impasse excusing the
Respondent from meeting at reasonable times. See Taft Broad-
casting Co., 163 NLRB 475 (1967). Beyond the lack of im-
passe, there was no justification for the Respondent’s 9-month
period of adamant refusal to begin meeting.
It is well settled that neither party to collective-bargaining
negotiations must agree to any particular proposal. The Act
requires only that they bargain in good faith which means,
among other things, that they have a good-faith intent to reach
an agreement. However, collective bargaining is not a technical
exercise. Rather, it is the process by which parties can mutually
agree to the wages, hours, and other terms and conditions of
employment. The duty to bargain includes the duty for an em-
ployer to furnish, on request, all information necessary and
material for the union’s use in representing employees. The
duty further includes meeting at reasonable times and places.
Here, following the initial unfair labor practice litigation, the
Respondent stated that it would not bargain with the Union.
And it is clear from the sequence of events that the Respondent
would never have done so absent the Board’s petition for con-
tempt in the Eight Circuit. The fact that the Eight Circuit denied
the petition for a contempt citation does vindicate the Respon-
dent’s stated refusal to bargain for some 9 months. Nor does it
justify the Respondent’s refusal to furnish necessary and mate-
rial information. In short, by its actions the Respondent has
demonstrated a distain for its obligations under the Act and has
again raised the defense that the Union does not really seek a
contract, a defense which was summarily rejected in the first
litigation.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, including its refusal to meet and bargain with
the Union as the representative of its employees and its refusal
to furnish in a timely manner complete information requested
by the Union which I find was necessary and material to the
Union’s representation, I shall recommend that the Respondent
be ordered to meet on request and bargain with the Union and if
an agreement is reached, embody same in a written executed
contract. I shall also recommend that the Respondent be or-
dered to furnish all information requested by Union that has not
previously been furnished and to update such information as it
did furnish.
In addition to the above traditional remedy, the General
Counsel argues that the remedy should include litigation costs,
including attorney’s fees, for the Board and the Union; that the
highest ranking official (or an agent of the Board) read the at-
tached notice to employees; a broad cease-and-desist order and
a 12-month extension of the Union’s certification year.
Although the Board has generally held with the American
Rule that litigation costs should not be awarded where the de-
fenses are “debatable” (usually turning on credibility), where
the defenses are “frivolous” then such an award is justified.
Alwin Mfg. Co., 326 NLRB 646 (1998). Thus the issue is
whether the Respondent’s defense to this litigation—
specifically that the Union does not intend to bargain a separate
contract—is “debatable.”
I conclude it is, notwithstanding that the essentially same de-
fense was raised, and rejected, in the first case. I note that in the
previous litigation, the issues primarily involved Section
8(a)(1) and (3), with the only 8(a)(5) issue being the Respon-
dent’s refusal to furnish the names and addresses (and other
data) of its replacement employees.
It was after the Eight Circuit’s decision that the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1094
stated its intent not to bargain and why. When the parties did
meet, the Union presented its proposal, which was the area
agreement. In this, the Union sought to have the Respondent
designate the association as its bargaining agent (a clearly
nonmandatory subject of bargaining). The area agreement also
contained a “Favored Nations” clause, from which the Respon-
dent could at least debatably conclude that the Union would not
agree to more favorable terms for the Respondent regardless of
the Respondent’s particular circumstances. These factors do not
excuse the Respondent’s unlawful activity found above. They
do, however, make the Respondent’s defense “debatable.”
Therefore, an award of costs is not appropriate.
The Board has held that an award of litigation expenses is
also appropriate where the unfair labor practice is “flagrant,
aggravated, persistent and pervasive.” Cogburn Healthcare
Center, 335 NLRB 1397 (2001). The Respondent’s refusal to
bargain with the Union following the decision of the Eighth
Circuit, and its delay and refusal to furnish necessary informa-
tion, are flagrant, but I conclude not sufficiently outside the
mainstream of refusal-to-bargain violations to justify the impo-
sition of costs.
Where the violations of the Act are numerous and serious,
the Board has held that the Respondent be ordered to read the
notice to employees (or at its option, have an agent of Board do
so). Blockbuster Pavillion, 331 NLRB 1274 (2000). Again, I
do not find the violations sufficiently extraordinary to warrant
this extraordinary remedy.
A broad cease-and-desist order is standard where the respon-
dent has shown a proclivity to violate the Act. Hickmott Foods,
242 NLRB 1357 (1979). Since this is the second case against
the Respondent such a broad order is appropriate.
Finally, the General Counsel argues that the Union’s certifi-
cation be extended another year, citing Mar-Jac Poultry Co.,
136 NLRB 785 (1962). Although the Union’s strength has
probably been dissipated as a result of the Respondent’s unfair
labor practices and the strike, the Union nevertheless should be
given a reasonable opportunity to bargain for the current em-
ployees. Van Dorn Plastic Machinery Co., 300 NLRB 278
(1990), enfd. 939 F.2d 402 (6th Cir. 1991). The Board has
therefore held that the remedy for an employer’s refusal to
bargain unfair labor practices “to assure at least a year of good-
faith bargaining include an extension of the certification year.”
Northwest Graphics, Inc., 342 NLRB 1288, 1289 (2004). The
Board recognized that the length of such an extension depends
on a number of factors, such as the bargaining history. Here,
there is no significant bargaining history. Thus an extension of
12 months is appropriate.
[Recommended Order omitted from publication.]