Milgo Industrial, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1977

229 N.L.R.B. 25 (N.L.R.B. 1977)

MILGO INDUSTRIAL, INC.
Milgo Industrial, Inc. and Shopmen's Local Union No.
455, International Association of Bridge, Structural
and Ornamental Iron Workers, AFLCIO. Case
29-CA-4612
April 18, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 22, 1976, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Milgo Industrial,
Inc., Brooklyn, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the
attached notice is substituted for that of the
Administrative Law Judge. 2
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge's recommended "Notice to Employees"
is hereby modified to conform to the recommended Order adopted herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act and has ordered us to post this notice
229 NLRB No. 13
and we intend to carry out the order of the Board
and abide by the following:
WE WILL NOT fail or refuse to bargain in good
faith collectively with Shopmen's Local Union
No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, as the exclusive collective-bargaining repre-
sentative of our employees in the appropriate unit
consisting of all production and maintenance
employees at our Brooklyn, New York, plant,
including leadmen, pattern and model makers,
and the driver, but excluding office clerical and
professional employees and all supervisors as
defined in the Act.
WE WILL upon request bargain collectively in
good faith with the above-named Union as the
exclusive collective-bargaining representative of
our employees in the appropriate unit described
above.
WE WILL NOT fail and refuse to give the Union
information necessary for its collective bargaining
on behalf of our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed in
Section 7 of the Act.
MILGO INDUSTRIAL, INC.
DECISION
STATEMENT OF THE CASE
PAUL E. WElL, Administrative Law Judge: On October 1,
1975, Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, hereinafter called the Union, filed
with the Regional Director for Region 29 of the National
Labor Relations Board, hereinafter called the Board, a
charge alleging that Milgo Industrial, Inc., hereinafter
called Respondent, violated Section 8(aXI), (3), and (5) of
the National Labor Relations Act, as amended, by failing
and refusing to bargain in good faith with the Union and
by other acts and conduct. On December 31, 1975, the said
Regional Director, on behalf of the General Counsel,
issued a complaint and notice of hearing alleging that
Respondent violated Section 8(aXI) and (5) of the Act by
negotiating with the Union in bad faith and with no
intention to enter into a collective-bargaining agreement
and by failing and refusing to furnish certain data
requested by the Union to enable it to bargain effectively.
By its duly filed answer, and by an amended answer,
Respondent admitted the jurisdictional allegations of the
complaint except that it denied knowledge and information
sufficient to form a belief as to the truth or falsity of the
allegations concerning the filing and service of the charge
and the representative status of the Union; but denied the
commission of any unfair labor practices. Respondent
additionally alleged as affirmative defenses that the
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint alleged dates beyond the 6-month statute of
limitations in Section 10(b) of the Act and that the conduct
of the Union during the course of negotiations evidenced a
pattern of bad-faith bargaining which precludes the Union
from seeking the Board's protection. On the issues thus
joined the matter came on for hearing before me at
Brooklyn, New York, on March 29, 30, and 31, 1976. All
parties were present and represented by counsel and had
an opportunity to call and examine witnesses and to
adduce relevant and material evidence. At the close of the
hearing, the General Counsel made a brief oral argument.
Respondent filed a brief which has been duly considered.
On the entire record in this case and in consideration of the
brief and oral argument I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation engaged, in the
Borough of Brooklyn, in the production, manufacture, sale,
and distribution of metal construction items, metal sculp-
ture, metal decorative and art objects, cut bodies and
frames, and related products. In the course and operations
of its business Respondent annually sells and distributes
products valued in excess of $50,000 which it ships in
interstate commerce directly to States of the United States
other than the State of New York. Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background
On September 21, the Union commenced an organizing
campaign among the 15 to 20 employees of Respondent at
its shop located in Brooklyn, New York, and on or about
October 1, 1971, demanded recognition. Recognition was
refused and on October 19, 1971, unfair labor practice
charges were filed. On August 29, 1972, an Administrative
Law Judge issued a Decision finding that Respondent had
engaged in a course of unfair labor practices and ordering
Respondent to bargain with the Union. On June 6, 1973,
the Board issued its Decision adopting the order of the
Administrative Law Judge' and ordered Respondent to
bargain with the Union. On June 11, 1974, the United
States Court of Appeals for the Second Circuit issued its
judgment enforcing the Board's Order and ordering the
Respondent to abide by and perform the directions of the
Board. On July 1, 1974, the Union by letter called upon the
Respondent to meet and bargain with it over the terms and
conditions of employment of its employees in the unit
found appropriate by the Board in its order, i.e.
I 203 NLRB 1196(1973).
2 The entire text is as follows:
All production and maintenance employees employed
by Respondent at its Brooklyn, New York plant,
including leadmen, pattern and model makers, and the
driver, but excluding office clerical and professional
employees and all supervisors as defined in Section
2(1 1) of the Act.
Three weeks later, on July 24, 1974, Respondent's
attorney, David Tolmach, responded to the Union's
request for bargaining stating that he had been delegated to
bargain on behalf of Respondent and requesting that the
Union specify a date on which to meet and bargain.
Finally, a meeting was arranged by telephone for August 8,
1974, when the parties first met. Respondent was represent-
ed by Attorney Tolmach and by Bruce Gitlin, Respon-
dent's vice president. The Union was represented by its
president, Colavito, who was its sole spokesman through-
out the course of negotiating that ensued. All of the
meetings were held in Tolmach's office in Manhattan and
were attended by Tolmach and Colavito. On some
occasions Bruce Gitlin was present.
At this first meeting Colavito gave Tolmach a copy of the
Union's proposal in the form of a contract similar to the
contract that the Union had in force at that time with a
large employer association representing about 30 percent
of the employers whose employees are represented by the
Union. The parties went over the union contract to some
small extent asking questions about the cost of the welfare,
pension, and other benefits in the union contract and the
particular benefits that accrued to the employees for those
costs.
In his July I letter Colavito had asked for the names,
addresses, starting dates, classifications, and rates of pay
plus other benefits in effect for the employees. On July 25,
Respondent, over the signature of Bruce Gitlin, forwarded
a list of 13 employees with their addresses, starting dates,
current rates of pay, and a paper entitled "fringe bene-
fits." 2 The covering letter also stated that since the
Company has no classifications at present it was unable to
satisfy the Union's request on this point. At the August 8
meeting Colavito discussed the job operations and classifi-
cations of the employees shown on the list provided by
Respondent and asked for further information concerning
precisely what each of the employees did. After discussing
the matter set forth above Tolmach stated that he wanted
to study the Union's proposal and that that would take him
a couple of weeks. He stated that he would call the Union
in a couple of days to set up another meeting. This the
meeting broke up after I- 1/2 to 2 hours.
No call was received from Tolmach. After 10 days
Colavito called him and was told that Tolmach was going
on vacation. A meeting was finally set up for September 9
at 2 p.m. On this occasion the parties went over the
Union's proposed contract and Respondent objected to
each and every provision as they reached it, for various
reasons.
Under the union contract the fringe benefits, welfare,
pension, sick leave, annuity and apprentice training are all
Fringe Benefits (A) Pension plan after 3 years. (B) Two weeks vacation
after 2 years, 3 weeks for leadmen (C) 10-1/2 paid holidays (D) Blue
Cross after 7 years.
26
MILGO INDUSTRIAL, INC.
handled through trust funds contributed to by employers
whose employees are represented by the Union and
controlled by trustees jointly selected by the employers and
the union. Respondent flatly stated that it would have
nothing to do with any of the trust funds and that its
benefits were adequate.
Respondent flatly rejected a provision in the unit clause
providing that the contract would bind any successors to
Respondent, opposed the wording of the no-strike clause,
rejected the provisions forbidding subletting unit work and
providing for regional standards of pay where erection or
field fabrication work was done outside of Respondent's
plant by Respondent's employees. The negotiators passed
all monetary items.
The parties met again on September 20 and October 7,
1974, and no agreements were reached. On September 20
Respondent handed the Union its first set of counterpropo-
sals which appear for the most part in items of substance to
reflect Respondent's prior or existing status.
The parties met again on October 17 and again on
November 4, 1974. On the latter day Respondent made its
first monetary offer, 10 cents an hour across-the-board
which was to include any cost involved in the improvement
of fringe benefits.3
On November 4, 1974, Colavito again asked for more
information concerning the jobs performed by the employ-
ees. He also asked for the cost of the pension plan and for a
copy of the Blue Cross plan. He had been informed of the
cost of the Blue Cross plan and that it was the Blue Cross-
Blue Shield Executive Plan but was not informed what
benefits it afforded. With regard to the pension plan he had
been given a copy of the pension trust agreement but was
given no information as to the cost to the Respondent of
the plan. By this time, after six negotiating sessions, the
parties had reached partial agreement on some clauses and
full agreement on the savings clause, the Union having
added a word to its proposal to make it conform to
Respondent's desires. There also appeared to be some
agreement on the clause referring to bonuses after Colavito
assured Tolmach that the clause would not prevent
Respondent from giving bonuses unrelated to production.
Also in the November 4 meeting Respondent announced
that it would give an improved vacation offer of I-week
vacation to any employee with a year of service, 2 weeks
with 2 years' service, and 3 weeks with 8 years' service. 4
On November 12, 1974, the parties met again. Respon-
dent raised its pay offer to 25 cents an hour plus any
improvements in the pension and welfare plans that it
might give. Respondent also announced that it was willing
to afford Blue Cross protection to the employees after 1-
year service rather than after 7 years' service as it had been
offering in the past. No agreements were reached in this
meeting. Most of the meeting appeared to have been taken
up with Colavito's protest that the 25-cent offer was less
than the rise in the cost-of-living experienced by the
3 The wage rates of the employees as of the commencement of
bargaining range from S2.50 to $5.75 an hour and averaged about $4.05 an
hour. The offer thus comprises the offer of a raise of approximately 2.5
percent.
4 Respondent's attorney and sole witness Tolmach denied that he had
ever offered a third week for 8 years' experience. Whether he or Colavito is
correct, at any rate in a subsequent wrtten offer Respondent offered a third
employees and in a discussion concerning the insertion in
the unit description of the street address of the Respondent
upon which Respondent insisted, and which the Union
inferred to mean that Respondent could escape its contract
by moving its operation to another address.
The parties met again on November 22, 1974. The entire
meeting was spent discussing holidays, reporting pay, the
grievance and arbitration clause, and overtime pay.
Agreement was apparently reached at this meeting on the
arbitration clause, Respondent having agreed that the
arbitrators could be selected by the American Arbitration
Association rather than through the Federal Mediation
and Conciliation Service which it had preferred.
At the close of the November 22 meeting Tolmach stated
that he wanted to draft a new proposal embodying all of
the agreements reached and whatever new proposals
Respondent was prepared to make. He stated that it would
take a couple of weeks to prepare this and that he would
telephone the Union with regard to setting up a new date. 5
In fact it was not until January 7 that the new draft was
forwarded to the Union and then only after numerous
attempts by the Union to reach Tolmach by telephone to
set up a new meeting. In his January 7 letter Tolmach
suggested that Colavito call him, after Colavito had an
opportunity to review the contract, to arrange a date for
the next negotiating session. Colavito attempted to tele-
phone Tolmach without success and apparently finally
reached him on February 3 and agreed to meet on
February 14. Because no economic offer had been
contained in the January 7, 1975, proposed contract
Colavito asked Tolmach for an economic offer and in a
February 3, 1975, letter Tolmach reoffered the 25-cent-an-
hour increase, the Blue Cross-Blue Shield after I year of
service and an additional week's paid vacation after 10
years of service all effective on the signing of the new
contract.
The meeting of February 14 was subsequently called off
by Tolmach and the parties in fact did not meet again until
March 3, 1975. At the March 3 meeting, during an
exploration of the Company's wage offer, Colavito again
asked for more information concerning what the jobs of the
employees consisted of. He again asked for the cost of the
pension plan and for a copy of the Blue Cross plan and for
the amounts of bonuses which had been paid the unit
employees. He also asked at this time about the Company's
sick leave practice and was told that the Company had no
practice or that Respondent was not sure what the practice
was but would let Colavito know. Either at this meeting or
the next meeting the information concerning the bonuses
paid in past years was furnished by Respondent as well as
listings of new employees that have been hired since the
negotiating started. The only agreement reached at the
March 3 meeting was when the Union agreed with
Respondent's proposal with regard to checkoff after a
slight wording change requested by the Respondent.
week after 10 years' experience. Inasmuch as only four employees had been
with the Respondent 10 years and three of them were leadmen who already
received 3 weeks' vacation this offer would have benefited only one
employee.
5 Tolmach testified that he said it would take 3 weeks to prepare this
redraft. I see no need to resolve the issue of credibility.
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties met again on March 14, 1975. At this time
the Union modified its unit proposal but Respondent still
rejected it. The parties discussed a provision regarding
funeral pay with Respondent's contending that it would
pay only 3 days from the date of death to the date of the
funeral inclusive and then only if they were workdays while
the Union argued for 3 days' pay whether or not they were
workdays and whether or not the funeral was conducted on
the third day. Colavito requested that any pay increase
negotiated be made retroactive to the commencement of
negotiations, but Tolmach stated that there would be no
retroactivity. The Union suggested under the safety and
health clause that Respondent supply half the cost of safety
shoes. Respondent refused to do so stating it did not think
safety shoes were as safe as other shoes. Respondent's offer
of 3 weeks' vacation for 10 years' service was debated, with
Respondent rejecting the Union's proposal that vacation
pay be prorated when employees were discharged. Respon-
dent contended that a discharged employee would get no
vacation.
The parties met again on March 26, 1975, and spent the
afternoon haggling about the plant visitation clause, with
Respondent's contending that the union agent must make
an appointment before visiting the plant, and the seniority
clause. Respondent throughout negotiations to this point
had contended that at least 120 days' probation was
required in its business. The Union contended that 30 days
at the most was necessary to determine whether an
employee was fit to remain in Respondent's employ. At
this meeting the Union agreed that it would drop its
demand for participation by Respondent in the joint
vacation fund and proposed 1-week vacation for employees
with I year, 2 weeks for employees with 2 years and I day
additional vacation for each additional year after 2 years.
This was rejected by Respondent. The Union reiterated its
demand for the welfare and pension information and for
additional information with regard to the job operations
and classifications of employees.
Employee Turnover
At the time of the election there were 17 employees in the
unit. By July 24, 1974, when Respondent sent a list of its
employees to the Union in response to the Union's request
for this information, there were 13 employees in the unit, 8
of whom had been employed prior to the filing of the
unfair labor practice charges in the prior case. Three of
these were the three leadmen, Salva, Lostinuso, and
Zeichner. Of the 10 card signers, identified in the prior
proceedings only 4 remained on the payroll, L. Mussi, T.
Mussi, A. Zichichi, and M. Hernandez.
By September 25, 1974, when a second list of employees
was furnished the Union six employees of the July 24 list
including M. Hernandez and A. Zichichi, were no longer
employed, and seven new employees were shown to have
appeared.
By March 14, 1975, when a third listing of employees was
furnished the Union, only 10 of the September 25
employees remained and 3 more had been hired. By this
time only two of the original card signers remained in
Respondent's employ.
Summation of Background
The charge was filed on October 1. Accordingly the 10(b)
period reaches back to April 1, 1975. The meeting of
March 27 was the last meeting preceding the 10(b) period;
it is to the next 6 months that we must look to determine
whether the unfair labor practices alleged occurred. The
status at the commencement of the 10(b) period was as
follows:
In the 3-1/2 years since the Union had achieved the right
to represent Respondent's employees the unit had re-
mained approximately the same but only seven of the
original employees remained of whom only two had been
union adherents. Of the 8-1/2 months that had elapsed
since the circuit court of appeals ordered Respondent to
bargain with the Union only 11 meetings had been held, all
of them brief afternoon meetings with two exceptions. The
negotiations had resulted in almost no agreement on any
contractual matter except the savings clause and a bonus
clause. The Respondent at that time was offering a wage
increase of 25 cents per hour, Blue Cross benefits to
employees who had been in its employ over a year of whom
there were seven and a third week of vacation to employees
with over 10 years' seniority, an improvement to only one
employee inasmuch as three of the four 10-year employees
were leadmen who already had this fringe benefit from
Respondent. The Respondent had not yet provided the
cost of its pension plan or a copy of the Blue Cross-Blue
Shield plan that was in effect with its employees and the
Union was still seeking more information with regard to
job operations and classification of the employees working
for Respondent. All of the union proposals for fringe
benefits including the vacation fund, the welfare fund, the
pension fund, the sick leave fund, the apprentice fund, and
the annuity fund had been summarily rejected by Respon-
dent and the remaining provisions including the unit,
union recognition, union security, hours of work, overtime,
holidays, no-strike clause, plant visitation clause, seniority,
leave of absence, nondiscrimination clause, bulletin board
clause, subletting clause, and the field fabrication clause
remained in various states of disagreement with the parties
taking up most of the little negotiating time they had
discussing changes in wording which, in many cases, would
have little or no affect on the unit as it then existed.
The Negotiations During the 10(b) Period
During the 10(b) period the parties met six times. April
18, May 2, May 29, July II, and September 11 and 30,
1975. The September 30 meeting involved no negotiations
whatsoever inasmuch as Respondent's attorney stated that
he questioned his right to negotiate in view of the fact a
decertification petition had been filed.6
The meeting of April 19 consisted largely of a discussion
of the union-recognition clause and the union-security
clause. Respondent continued to maintain its position that
its street address should remain in the unit description and
I Case 29-RD-203, filed September 23, 1975.
28
MILGO INDUSTRIAL, INC.
that no mention of successors be made in the recognition
clause. The Union argued that it sought to protect the
employees in the event Respondent went out of business or
moved its plant, and Respondent countered with an offer
to agree that in the event Respondent went out of business
it would negotiate a severance provision. No agreements of
any kind were reached on April 18.
The next meeting was held on May 2, and dealt first with
the seniority clause with Respondent still contending that
120 days was the minimum probation period that it could
accept. The Union suggested going as high as 45 days but
the Company remained adamant in its 120-day provision.
The parties also discussed vacation pay with the Union
seeking prorata pay for employees who were discharged
and Respondent insisting that no vacation would be paid
them. The safety and health clause continued to be
discussed. Respondent continued to insist that it would not
provide safety shoes and that regular meetings of the safety
committee was unnecessary in a small plant and that the
safety committee could meet whenever it was necessary,
while the Union continued to insist that meetings should be
held at least once a month. The Union continued to
contend that some provisions be made for paying employ-
ees who were taken into the field either for field fabrication
or erection of the Employer's products based on the scale
of employees doing that kind of work in that geographical
location. Respondent however continued to maintain that
employees would be paid only shop wages. No agreements
of any kind were reached at this meeting.
A meeting was arranged for May 9. According to
Respondent's witness Colavito called off the May 9
meeting because he had oral surgery that day and
subsequently called off the May 20 meeting thereafter
arranged for some reason that Tolmach did not recall.
According to Colavito Tolmach called off the May 9
meeting because he was too busy and changed it to May 20
on which day Colavito had oral surgery and called off the
meeting arranging a new meeting for May 29. At any rate
the parties met on May 29 and addressed themselves to a
new series of documents sent to the Union on May 15 by
Tolmach embodying either agreements or new proposals.
In this, the third offer of the Respondent, it finally dropped
its insistence on the insertion of its address in the unit
description so that agreement was apparently met in this
issue. With regard to the plant visitation clause Respon-
dent changed its proposal to omit the provision for prior
notice from the Union and to add the provision that the
union agent would not "unduly" interfere with the work in
progress. With these changes the Union agreed to this
provision. Respondent, in the May 15 proposal, changed
position in various regards on seniority by dropping its
requirement, in effect up to that time, that deductions in
seniority should be made for layoff, sick leave, and leave of
absence, and by substituting therefor only that seniority
should be deducted for any time lost by reason of the fault
of the employees, such as a leave of absence. In the other
direction Respondent changed its prior position that
employees report within 7 days when called back from a
layoff to reporting within 5 days, although the 7 days
provision had conformed to the proposal of the Union.
Respondent also changed its provisions with regard to the
length of unemployed time that would break seniority,
which had been in various steps of seniority, i.e., 3 months,
6 months, I year, with varying breaks of layoff or leave of
absence operating to break the employees' seniority,
substituting a provision that a layoff or leave of absence
exceeding I year would operate to break seniority. The
Union position at all times had been based on an 18-month
break. Although Respondent reworded its leave of absence
provision which originally had been modeled on the
Union's it continued to limit funeral pay to work days up
to three after the funeral and continued its insistence that
seniority should not be a factor in the decision to grant
paid time to employees to press for and get licenses
required by Respondent in certain kinds of work.
Respondent presented a new nondiscrimination clause
very similar to the Union's but added a provision that
physical examinations could be required as a condition of
continued employment at the Respondent's request.
With regard to bulletin boards Respondent continued to
require that matter posted on the bulletin board by the
Union be "official" while the Union continued to contend
that it should be allowed to post any matters of interest to
the employees from the Union. With regard to the safety
committee Respondent continued to insist that the safety
committee could not shut down an operation that they
agreed was potentially dangerous or injurious to the health
or welfare of employees, but offered to provide accelerated
arbitration in the event Respondent disagreed with the
safety committee's decision. Respondent continued to
insist that it would not furnish a water cooler or safety
shoes.
With regard the clause providing for renegotiation in the
event any portion of the contract was found unlawful
Respondent offered to adopt the Union's proposal with the
addition of the term "solely" as a limitation for the scope of
the renegotiation.
At the meeting of May 29 the Company changes were
discussed. Reporting pay particularly was discussed with
both parties adhering to their positions. Colavito suggested
trading agreement by the Union on the differences in the
seniority clause for agreement by Respondent for the leave-
of-absence clause. Tolmach informed him that Respondent
would make no trades. The leave-of-absence clause was
discussed at some length, with nobody changing their
position. They again discussed wage rates and the Union
proposed a 12-1/2-percent wage increase plus a cost-of-
living provision. This was countered by Tolmach with the
response that the Company would have to spend some time
thinking it over and the meeting broke up. At this meeting,
according to Colavito whom I credit, he again asked for
information concerning job operations and classification,
for the cost of the pension plan, and for a copy of the Blue
Cross-Blue Shield plan with which some of the employees
were then covered.
At the close of the May 29 meeting a meeting was set up
for June 19. According to Colavito he was informed by his
office that Respondent called during the morning of June
19 and called off the meeting. According to Tolmach,
however, he was prepared to meet and Colavito didn't
show up. There is no question that Colavito would not have
shown up either way inasmuch as he was at the time
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in negotiations for another contract and had
called up his office with the apparent intention of calling
off the meeting set for June 19. The parties thereafter by
telephone set up their next meeting to be held on July 11.
This was a short meeting because Colavito had to leave to
attend the funeral of one of the union officers. It lasted
long enough however for Colavito to accept the Company's
offer with regard to bulletin boards and part of the leave-
of-absence offer of the Company. According to Tolmach's
testimony they also discussed union security, working
hours, and the plant visitation clause without resolving
anything.
Another meeting was set up by telephone for July 24.
Colavito presented himself at Tolmach's office and the
receptionist said she had no idea that there was going to be
a meeting and that Tolmach was not there. She gave
Colavito a telephone number at which he could reach
Tolmach and on calling him Tolmach apologized saying
that he forgot to cancel the meeting. Tolmach suggested
that he would call back the next day and make a date on
which they could meet. He did not call the next day
whereupon Colavito attempted for several days to reach
him by telephone and his calls were unsuccessful and were
not returned. Finally on August 12 Colavito had the union
secretary send Tolmach a letter stating "three weeks have
passed since you called off our scheduled meeting. Despite
the fact that we have made a number of phone calls you
have failed to respond. Please call to arrange a meeting."
On August 18 Tolmach addressed the letter back to the
secretary-treasurer stating "due to a heavy case load I will
not be able to meet with you and Bill until September 3.
Please let me know what time would be most convenient
for the meeting on this date." Colavito was unable to meet
on the 3d and a meeting was arranged by telephone for
September I 11. At this meeting Colavito reiterated his
request for information on classifications and job opera-
tions and complained about the gap between meetings and
the slowness of the negotiations. He then modified the
Union's request with regard to wage increase and asked for
a 20-percent wage increase retroactive to January 1, 1975,
in lieu of all past proposals in terms of retroactivity.
Tolmach said Respondent wanted to study the proposal
and get back to the Union. As the meeting broke up
Colavito stated that he would like a response to the wage
proposal and he still wanted the information so that the
Union could set up proper classification systems for the
Respondent. Tolmach said that he would get information
to the Union on the job operations. Colavito also again
asked for the pension costs and the benefits of the Blue
Cross-Blue Shield plan. The parties agreed to meet again
on September 28.
After the September 11 meeting the decertification
petition was filed on September 23 and on September 25 an
unsigned letter was delivered to Colavito with a list of
employees' "major job work," containing the names of 14
employees and with various jobs set out after their names.
Most of the information specified during the hearing by
Colavito, required in order to "slot in" employees into the
union classification system, was available from this list, the
only information lacking appears to be whether the various
employees were expected to or required to work from
blueprints.
The September 30, 1975, meeting was of course the last
meeting. Tolmach refused to negotiate in view of the filing
of the decertification petition. Since October I the Union
has made no further attempt to bargain with Respondent
nor has Respondent made any attempt to communicate
with the Union, other than for purposes of the instant
hearing.
Discussions and Conclusions
I believe and find that during the 10(b) period, that is to
say between April 1 and October 1, 1975, Respondent
made no attempt to bargain in good faith with the Union
as the representative of the employees in the appropriate
unit. Bargaining in good faith is defined in the Act as the
performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment, or the
negotiation of an agreement, or any question arising
thereunder, and the execution of a written contract
incorporating any agreement reached, if requested by
either party. This obligation does not compel either party
to agree to a proposal or require the making of a
concession. The Board in its decisions relating to surface
bargaining has laid down various indicia by which the
failure of the employer to bargain in good faith is exposed.
These indicia include failing or refusing to meet regularly,
or promptly, failing to promptly supply information
necessary to and requested by the union directly related to
bargaining, shifting positions, retreating from agreements
reached and taking an adamant position thus leaving no
scope for bargaining, or demanding conditions that no self-
respecting union could consider. The General Counsel
contends that all of these indicia are demonstrated herein.
Any student of Board law could contrive a script by
which a party could bargain indefinitely without reaching
agreement and without exposing any of the specific indicia
heretofore pointed out by the Board in surface bargaining
decisions. It has been my experience that an increasing
amount of negotiating time between employers and labor
organizations is spent with the parties trying to mark each
other with the stigma of the Board's "indicia." The danger
to the trier of fact is that he becomes so engrossed with an
examination of each individual alleged indicium that he
fails to note the broad picture. In short he can't see the
forest for the trees.
Before proceeding with an examination of the indicia, all
of which are said by the General Counsel to be here
present, let us take the broad view.
At this time, 15 months after the Union finally demand-
ed bargaining, with the authority of the circuit court to
enforce its demand, the parties have reached no significant
agreement, have resolved no economic issue between them,
and continue to spend their time haggling over nonessen-
tial language changes. It is questionable whether now, 3-
1/2 years after the Union represented a majority and
demanded bargaining, it represents anyone. In the 15
months of bargaining, 17 bargaining sessions were held and
on 2 occasions during the 10(b) period, more than a month
30
MILGO INDUSTRIAL, INC.
elapsed between negotiation sessions. Respondent attempts
to lay the blame for the slow course of bargaining entirely
on the Union and indeed as a defense to the charges herein,
alleges that the Union engaged in bad-faith bargaining. Yet
Respondent's counsel on the witness stand admitted that
he was the sole spokesman for the Respondent and that
during the 10(b) period he was not in New York more than
2 or 3 days a week and during 2 weeks he was in his office
no working day at all. This is in addition to whatever
vacation period he took. Tolmach testified that each of the
meetings was held on a date to which the Union agreed
and I have no doubt this is true. Colavito testified that
frequently throughout the course of bargaining he sought
more regular meetings and longer meetings but that he was
forced to take whatever dates Tolmach said he would be
available.
I have no doubt that Respondent was at all times aware
of the fact that the Union had little or no strength in the
plant. In the last analysis, the ability of a union to negotiate
a favorable contract depends on the muscle it brings to the
bargaining table, and this muscle is measured by the
employee support that the union has in the plant. The only
weapon the union has to avoid being talked to death, as the
General Counsel put it in his closing argument, is a threat
of strike, and it is quite obvious that the Union's implied
threat must have been a hollow one. But granted that the
Union is weak here, Respondent's duty was, as ordered by
the United States Circuit Court of Appeals for the Second
Circuit, to bargain collectively in good faith with an
intention to reach agreement, and I don't see that it has
done so. Without considering the specific indicia on which
the General Counsel relies, I find that the record displays
that Respondent throughout the course of bargaining made
itself unavailable for regular bargaining, by engaging in a
course of nit-picking, negotiating word by word, clause by
clause, paragraph by paragraph and section by section.
Most of the paragraphs in the Union's proposal are by no
means exceptional, but Respondent made necessary the
expenditure of large amounts of time to thrash out the
objections that it raised, yet Respondent made it impossi-
ble to spend such amounts of time by appointing as its
chief negotiator a lawyer who is so busy that he could not
possibly give this client or this negotiation his full
attention.
It is true that the act says that no concessions need to be
offered or no agreements compelled, but the picture
presented by the record herein is that concessions were
made virtually impossible, an agreement was never ap-
proached. At the end of 15 months of bargaining only a
small handful of provisions were agreed upon out of the 33
clauses offered by the Union. All of the fringe benefits
proposed by the Union were summarily rejected and
Respondent's offer with regard to a wage increase was
insufficient even to keep the employees abreast of the rise
in the cost of living. In short, after all this time the parties
had taken one short step toward the foothills with the
mountains left to climb.
Now with regard to the various indicia heretofore found
by the Board to reveal bad-faith bargaining, clearly as the
7 The "Modified Maintenance of Membership proposal" would by its
terms have permitted any employee to withdraw from the Union within 30
General Counsel points out, Respondent's wage offer was
far below that any self-respecting union could take back to
its employees. Respondent's vacation offer was almost
exactly that which it had offered before the Union came on
the scene. Negotiations on Respondent's welfare offer were
stultified by the fact that it had never furnished informa-
tion as to what the benefits were that Respondent was
offering, and its proposal with regard to the pension fund
was stultified by the failure of Respondent to furnish the
cost of the pension fund to enable the Union to compare it
with the Union's pension fund.
With regard to the failure to meet and bargain at regular
intervals, six meetings in 6 months can scarcely be said to
be regular intervals. I credit Colavito's testimony that he
attempted to get more regular and longer bargaining
sessions, without success. While it was no doubt true that
Colavito was busy himself during these periods of time, his
pocket calendar, which Respondent placed in evidence,
shows that he was by no means so busy that he could not
have spent multiples of the amount of time negotiating that
was available to him. Furthermore, credence is given to his
testimony by Tolmach's admission that he was out of town
2 or 3 days in every week, and all of 2 weeks. The press of
business of an employer has never been found by the
Board to be a good excuse for the failure to meet at regular
intervals and to bargain in good faith. The Board has
compared the negotiation of a collective-bargaining agree-
ment with the negotiation of any other type of contract and
I can scarcely believe that Respondent has dragged its feet
or permitted anyone negotiating on its behalf to drag its
feet over so long a period in the negotiation of any business
contract.
The General Counsel contends that Respondent reneged
on agreements previously reached with the Union. I do not
find the evidence adequate to sustain his position in this
regard. Few enough agreements were reached, and the only
one to which any great attention can be drawn concerned
Respondent's purported offer of a third week of vacation
for employees with 8 years' seniority. This is completely
denied by Tolmach. Both Colavito's and Tolmach's
testimony revealed a major loss of memory with regard to
the entire course of negotiating. But it is clear that the
language in which negotiations were carried on was
frequently not definitive but rather consisted of passing
suggestions back and forth across the bargaining table, few
of them having achieved the status of a real offer. I can
readily invision that what occurred was something in the
nature of Colavito suggesting three for eight and Tolmach
saying something to the effect that something might be
worked out there. I think the same thing happened during
the background period with regard to an alleged agreement
on union security. Indeed, Colavito's testimony convinced
me that Tolmach said, in essence, that there would be no
problem with union security which is a far cry from
accepting the Union's union-shop clause. Thus when
Tolmach came forth with his "Modified Maintenance of
Membership proposal,"7 I see no reneging on an agree-
ment except to the extent that Colavito may have been
days after the signing of the contract or after the first anniversary of the
(Cmoninued)
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misled into believing that Tolmach's assurance that
something could be worked out amounted to an agreement.
I have already dealt with the failure of Respondent to
provide information sought by the Union to some extent.
Admittedly, Respondent never gave the Union a copy of
details concerning the benefits of its welfare plan, nor
informed the Union of the cost of the pension plan.
Respondent gave the costs of the pension plan prior to the
changes required by the change in Federal law. It was the
changed costs that Colavito continued to require and
request. These two items are essential to meaningful
bargaining by the Union. The Union on the other hand, at
the Respondent's insistance at the first negotiating session,
detailed the plans to which its proposal were tied and
furnished copies of them. With regard to the information
concerning job operations and classifications, I believe
that, with some slight imagination and a diligent consider-
ation of the bits and pieces of information that Respondent
gave the Union, the employees could have been roughly
slotted into the Union's classification scheme, although the
slotting would have been rough because the varying wages
paid to various employees were by no means consistent
with the details of their employment as spelled out by
Respondent. The difficulty of course was in the fact that
Respondent throughout this period of time had a continual
turnover of about half of its working force, so that
distinguishing between mechanics and helpers of laborers
among newly hired employees would present considerable
difficulties. Nevertheless, I find that Respondent presented
the Union with all that it had and probably no more could
have been ascertained by the Union without an actual
plant visit by Colavito and an investigation into the work
status of each employee.
I find that Respondent violated Section 8(a)(5) and (I) of
the Act by failing and refusing to bargain in good faith
with the Union. I find that, instead, it engaged in surface
bargaining throughout the entire 10(b) period and indeed
throughout the entire bargaining period. I find that it
attempted to and succeeded in literally talking the Union
to death, depending on the passage of time to annul any
strength that the Union might have gained and in the
expectation that a decertification petition would be filed
when sufficient time had elapsed. In order to avoid any
possibility of reaching agreement, I find that Respondent
raised issues where no real issues existed, delayed bargain-
ing and never offered anything in the nature of economic
inducements that would have enabled a self-respecting
union to swallow the noneconomic provisions such as a
120-day probation period, the complete lack of union
security, the unilateral control of working hours, the
restrictions on seniority, the limitations on the use of the
bulletin board, and the refusal to give a 5-minute washup
period at the end of the workday, upon all of which
Respondent insisted. While I recognize that no order to
bargain can give the Union the strength of employee
support that it apparently meets to force a good contract, it
is not inconceivable that good-faith bargaining by Respon-
contract, thus affording every employee the opportunity to become a free
rider as soon as the contract was signed. The clause specifically provided
that all employees should be informed of their withdrawal rights.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
dent might result 3-1/2 positive result of the future
expenditures of time, energy, and money by the Union,
Respondent, and the Board.
CONCLUSIONS OF LAW
1. Milgo Industrial, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Brooklyn, New York, plant,
including leadmen, pattern and model makers, and the
driver, but excluding office clerical and professional
employees and all supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times relevant hereto the Union has been and
is the exclusive collective-bargaining representative of
Respondent's employees in the above appropriate unit
within the meaning of Section 9(a) of the Act.
5. By refusing to bargain in good faith with the Union
as the collective-bargaining representative of its employees
in the appropriate unit set forth above since April 1, 1975,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the purposes and policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case and pursuant to Section
10(c) of the Act, I make the following recommended:
ORDER 8
Respondent Milgo Industrial, Inc., Brooklyn, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with Shopmen's Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, as
the collective-bargaining representative of the majority of
its employees in the unit consisting of all production and
maintenance employees employed by Respondent at its
Brooklyn, New York, plant, including leadmen, pattern
and model makers and the driver, but excluding office
clerical and professional employees and all supervisors as
defined in Section 2(11) of the Act.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
32
MILGO INDUSTRIAL, INC.
(b) Failing and refusing promptly to supply the Union
with information necessary to its collective bargaining.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request recognize and bargain collectively with
the above-named Union as the exclusive collective-bar-
gaining representative of its employees in the appropriate
unit described above.
9 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
(b) Post at its office and place of business copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 29, shall be posted immediately upon receipt
thereof and be maintained by Respondent for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
33