Natico, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1991

302 N.L.R.B. 668 (N.L.R.B. 1991)

668
302 NLRB No. 107
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent Employer has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that they are incorrect. Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 We correct the judge’s incorrect statement that the Respondent Employer
had a past practice of eliminating overtime to accommodate Local 1. As the
General Counsel asserts, no evidence supports this finding. This factor pro-
vides further support for the judge’s finding that the Respondent Employer
violated Sec. 8(a)(2) and (1) by providing assistance to Local 676 by cancel-
ling overtime to encourage its employees to attend a Local 676 meeting.
3 The judge inadvertently omitted from his recommended Order and notice
his recommended remedy that the Respondent Employer cease and desist from
providing assistance to Teamsters Local 676 by cancelling overtime to encour-
age its employees to attend a union meeting sponsored by Local 676. The at-
tached Order and notice correct those omissions.
4 The judge noted that the General Counsel disclaimed any ‘‘surface bar-
gaining’’ allegation at the hearing. We note that although the counsel for the
General Counsel stated at the hearing that ‘‘there is no surface bargaining
charge that we’re proceeding on,’’ he was obviously referring to an allegation
of overall surface bargaining, because he in no way disclaimed the above-cited
allegation either at the hearing or in the pleadings.
Natico, Inc. and United Independent Union, Local 1
Teamsters Local 676 a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, Party
in Interest
Teamsters Local 676 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO and United
Independent Union, Local 1. Cases 4–CA–
15707, 4–CA–15883, 4–CA–16037–1, 4–CA–
16383, 4–CA–16570, and 4–CB–5411
April 24, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On April 29, 1988, Administrative Law Judge Irwin
Kaplan issued the attached decision. The Respondent
Employer and the General Counsel each filed excep-
tions and a supporting brief. The Respondent Employer
filed an opposition to the General Counsel’s excep-
tions, and the General Counsel filed a response to the
Respondent Employer’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 brief and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.3
1. The complaint alleges that:
Since on or about March 11, 1986, Respondent-
Employer bargained in bad faith and without in-
tention of reaching a final and binding agreement
with the Union with respect to wages, hours and
other terms and conditions of employment of the
Unit, by repudiating its agreement to implement a
new wage incentive plan for a period of sixty
days, subject to ratification by the Unit.4
The judge found that the incentive plan was subject
to employee ratification, which never took place. He,
accordingly, dismissed this allegation on the grounds
that the Respondent Employer was not responsible for
Local 1’s (the Union) failure to conduct a ratification
vote on the incentive plan. The judge further applied
a totality-of-circumstances test in which he considered
that the Respondent Employer bargained in good faith
over this issue for 2-1/2 months, spent time compiling
financial data and information as requested by Local 1,
and offered inducements to help Local 1 sell the incen-
tive plan to the employees. On all these bases, the
judge found that the Respondent Employer’s president,
Preston Dry, was justified in telling Local 1 that the
employees were not interested in the incentive plan
and in taking it off the table. He, therefore, found that
the General Counsel failed to show that the Respond-
ent Employer did not have good cause or had acted in
bad faith by withdrawing from the agreement on the
incentive plan. We disagree.
First, we note that the General Counsel does not
contend that the agreement to implement the incentive
wage proposal for a trial period was a final agreement
that the Respondent Employer was obligated to imple-
ment. Accordingly, the General Counsel does not seek
to require the Respondent Employer to implement the
trial incentive agreement. Rather, the parties agreed to
test the proposed terms of the incentive wage proposal
in order to better enable both parties to assess whether
such a system, either in that form or with modifica-
tions, should be included in the collective-bargaining
agreement. As such, it was an agreement by the parties
on how to proceed with negotiations. The General
Counsel urges that the repudiation of that procedure,
regardless of whether a ratification vote was ever held,
constituted bargaining in bad faith and without an in-
tention of reaching a final and binding collective-bar-
gaining agreement. The General Counsel, accordingly,
seeks an order to bargain in good faith. We agree with
the General Counsel’s reasoning in this matter.
The credited or undisputed testimony is as follows.
The Respondent Employer, a manufacturer of indus-
trial drums, has recognized the Charging Party Union,
United Independent Union, Local 1 (Local 1), as the
bargaining representative of its production and mainte-
nance employees at its Pennsauken, New Jersey facil-
ity since 1970. The most recent collective-bargaining
agreement between these two parties was effective be-
tween December 16, 1982, and December 16, 1985.
Negotiations for a new contract began November 5,
1985, and, during the first five sessions, the parties
reached agreement on some noneconomic issues but on
no economic proposals. The Respondent Employer’s
position with regard to economic proposals was that it
669NATICO, INC.
5 Chiappardi was the Union’s national president and Ferguson represented
the Union at 32 other locations.
was undergoing financial losses and, therefore, was
asking, inter alia, for a 25-percent reduction in hourly
wages, with a two-tier wage structure that provided
lower rates for newly hired employees.
At the 11th session, on December 11, Local 1 Presi-
dent Francis Chiappardi offered an incentive wage pro-
posal by which the employees’ hourly rate would be
determined by how many drums were produced (drums
per man hour or DPMH). According to Local 1, this
plan would allow the Respondent Employer to be com-
petitive as well as improve the employees’ incomes.
During the next 3 months, the negotiations focused
almost exclusively on this issue. Most of the parties’
other proposals, including their initial wage proposals,
were put on hold. Instead, negotiations dealt with such
topics as determining the base number of drums per
man hour to qualify employees for an increase over
their current wage rate; the point in the manufacturing
process at which the drums should be counted; how
breakdown time was to be treated in the DPMH cal-
culation; and the effect supervisors and temporary em-
ployees performing unit work would have on the
DPMH.
During sessions in January 1986, the parties agreed
to a 3.9 DPMH base rate and that bonuses would start
at 4.0 DPMH. They further agreed that employees with
a 3.2 DPMH, which was the average for the prior year,
would receive a cut in pay amounting to $1.43 per
hour. The parties agreed on a 60-day trial period and
discussed starting it on January 27. However, this did
not occur because all the incentive plan problems had
not been worked out by that date. At a mid-January
Local 1 meeting, the employees raised various con-
cerns about the plan such as the issues of machine
breakdown and the use of temporary employees and
foremen who had no stake in increasing the DPMH, as
well as concern about a $10 per employee weekly
health and welfare benefit contribution, which was to
be put into effect during the trial period.
Local 1 then attempted to discuss the entire contract
package. However, the Respondent Employer refused
to do this until they agreed on the incentive plan. To-
ward this end, on January 19, the Respondent Em-
ployer offered to suspend the $10 per week health and
welfare payments during the trial period and change
the vacation pay period. By the February 27 meeting,
the parties had agreed that the trial period would start
March 10, as proposed by Local 1, upon the ratifica-
tion of the plan by Local 1’s membership. The Re-
spondent Employer’s president, Preston Dry, promised
to have the winder machine, necessary for the incen-
tive plan to work properly, prepared by that date.
In the meantime, Local 1 arranged with Plant Man-
ager Donald Benson to hold the ratification meeting in
the plant cafeteria at 11:30 a.m. on Thursday, March
6. A couple of days before March 6, Benson asked
Local 1 Representative Ronald Ferguson to change the
date of the meeting because customers would be vis-
iting the plant on that morning. Ferguson said he could
not arrange a meeting before Thursday because of his
and Local 1 President Chiappardi’s schedules.5 Fer-
guson would not agree to change the meeting to Thurs-
day afternoon because the employees were paid at
noon on Thursday and often consumed alcohol at
lunch.
The judge credited Ferguson that Benson then
agreed to let the Union hold its meeting on Thursday,
March 13. However, the judge also found that Benson
did not agree to postpone the March 10 start of the
trial period of the incentive plan. Thus, the judge
found that although Benson, as plant manager, was a
statutory supervisor and assisted Dry in negotiations,
he was not the Respondent Employer’s agent for pur-
poses of modifying the terms of the trial incentive
agreement reached between the Respondent Employer
and the Union and that Dry was ‘‘virtually the only
spokesmen and negotiator for the Company.’’
According to the undisputed testimony of Benson,
he had telephoned Dry on the day the ratification
meeting postponement was discussed and had told him
that the ratification meeting would not be held by
March 10, and that Ferguson had commented, ‘‘Well,
I guess it doesn’t make any difference whether the in-
centive goes in this week or a week from now.’’ How-
ever, as Dry testified, when Benson had informed Dry
on March 10 that the trial period would not start that
day, Dry immediately made airplane reservations to
travel to the plant’s location. There, on March 11 or
12, he told Local 1’s representatives that he was with-
drawing from the incentive agreement and taking the
issue off the table as a negotiating subject. Dry told
Local 1’s representatives that they were responsible for
the agreement being withdrawn. He told them that it
was unreasonable for them to have allowed only one-
half hour between February 27 and March 10 to hold
the ratification meeting; that the Union and employees
were not interested in the incentive plan; and that he
had heard that Shop Steward Robert Zozofsky had told
maintenance employees not to work on Saturday to re-
pair the winder, which had to be operational for the
trial period to start. Zozofsky was present at this meet-
ing and denied the remarks attributed to himself and
asked Dry to bring in whoever had reported that he
had made the remarks ‘‘and let’s get it straightened out
right now.’’ Dry refused. Ferguson argued to Dry that
Local 1 did favor the incentive plan and that he was
sure the employees would ratify it. Ferguson pointed
out that it was Benson, not the Local, who had can-
celed the March 6 meeting, and he had tried to get Dry
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Although the judge found that ratification was a condition precedent to im-
plementing the plan, we note that both Dry and Benson denied that the incen-
tive plan was contingent on employee ratification (although Dry also asserted
that he would not start the incentive plan ‘‘if the employees didn’t agree to
it’’). These admissions that the plan could have gone ahead without employee
ratification further detract from the Respondent Employer’s claim that post-
ponement of the ratification vote provided good cause for withdrawing from
the incentive plan agreement.
7 Thus, it is well settled that the failure of a party to disavow conduct taken
on its behalf and of which it has knowledge amounts to condonation and ratifi-
cation of that action. See Hudson Oxygen Therapy Sales Co., 264 NLRB 61,
70–71 (1982); Martin Processing, Inc., 224 NLRB 1242, 1244–1245 (1976).
Cf. Wometco-Lathrop Co., 225 NLRB 686, 688–689 (1976), in which the
Board noted, ‘‘Silence by a principal can be an affirmance of an agent’s unau-
thorized conduct if fairly construed that it is indicative of an intent by the
principal to treat the unauthorized conduct as authorized. Restatement, Second,
Agency § 82 et seq. (1958).’’ In Wometco-Lathrop, however, the respondent
informed the union within 19 days that its agent had acted without authority.
The Board found, under the facts of that case, the disavowal was made within
a reasonable period of time. Here, there was no such disavowal of Benson’s
actions within ‘‘a reasonable time.’’ Dry never repudiated Benson’s actions
until March 12, at which time he withdrew from the plan completely.
8 Whether Benson had authority to postpone the start of the incentive plan
is, therefore, not crucial to resolving this issue.
9 Dry testified he had been informed by the plant manager and supervisors
but could not remember who the supervisors were.
to reconsider his decision. Dry did not change his deci-
sion.
In his exceptions, the General Counsel contends, cit-
ing Arrow Sash & Door Co., 281 NLRB 1108 fn. 2
(1980), that the proper standard for withdrawing from
an agreement reached during negotiations is good
cause, and that the Respondent Employer has not met
that standard. The General Counsel argues that Dry
knew before March 6 that the incentive plan would be
delayed until after March 10, but did nothing about it
until March 11 or 12.
We agree with the General Counsel’s exceptions.
Thus, we find that Dry’s purported reasons, given on
March 11 or 12, do not meet the good-cause test either
individually or collectively. Dry blamed Local 1 be-
cause it had allocated only one-half hour between Feb-
ruary 27 and March 10 for the ratification meeting.6
This reasoning ignores the Respondent Employer’s role
in postponing of the meeting, i.e., the Respondent Em-
ployer itself originally had requested the change after
the parties had agreed to March 6. It also ignores the
fact that Local 1 offered substantial reasons, which the
Respondent Employer did not challenge, why it could
not have the meeting at the time suggested by Benson.
These reasons were the consumption of alcohol on
payday and the conflicting schedules of Local 1’s offi-
cers. Finally, Dry’s reasoning ignores the facts that
Local 1 and Benson had agreed to March 13 as the
date for the rescheduled ratification meeting, and that
the Respondent Employer knew of this change and, by
Dry’s silence, ratified Benson’s agreement to the
March 13 vote.7
Concerning this last point, the judge credited Fer-
guson’s testimony that, 1 or 2 days before March 6,
Benson agreed to reschedule the ratification vote to
March 13. The evidence is undisputed that Benson was
in constant telephone contact with Dry concerning the
attempts to reschedule the March 6 meeting, and had
informed Dry that each of the Respondent Employer’s
suggestions to reschedule the vote before March 10
had failed. Although Dry denied that Benson had in-
formed him of the March 13 date, Benson testified
that, in relaying the information to Dry about his ex-
changes with Ferguson after the final attempt to agree
on a date, he repeated to Dry Ferguson’s comment that
a week’s delay in the incentive plan would not matter.
Further, the judge credited Ferguson’s testimony that
he and Benson had agreed on the March 13 date.
Therefore, the credited testimony is that Dry was in-
formed that the meeting was rescheduled and Benson’s
undisputed testimony indicates that Dry knew, on
March 4 or 5, that the implementation of the incentive
plan had been postponed for 1 week. The evidence
also shows that Dry took no action with respect to this
knowledge until March 12. By this failure to take ac-
tion, we find that Dry has ratified Benson’s action in
postponing the March 6 meeting to March 13.8
The Respondent Employer does not present any rea-
sons why the delay would have been significant or
would have caused it any harm or, indeed, any basis
for a finding that it had good cause for withdrawing
from the agreement. Nor is there evidence in support
of the Respondent Employer’s assertion that the vote
was delayed for a week because Local 1 or the em-
ployees did not want the incentive plan. Although the
employees had expressed some problems with the plan
earlier in negotiations, as detailed above, the Respond-
ent Employer had offered concessions in an attempt to
answer these concerns. Further, if Local 1 or its em-
ployees were indeed not interested in the plan, their
lack of interest would have become obvious when the
vote was held on March 13.
Dry also claimed he had been informed that Shop
Steward Zozofsky had told the maintenance employees
not to work on Saturday to have the winder machine
repaired, and stated that his actions as well as their
failure to work demonstrated that Local 1 was not in-
terested in the plan. However, it is undisputed that the
machine was repaired by March 10; therefore, the con-
dition of the winder did not provide good cause for
backing out of the incentive agreement. Nor does
Dry’s purported belief that Zozofsky was attempting to
sabotage the incentive plan amount to good cause for
withdrawing from the agreement. Not only could Dry
not remember the supervisors who had told him that
Zozofsky was sabotaging the plan,9 but he also did not
act on Zozofsky’s request to have the matter cleared
up with whoever had made the report.
In Arrow Sash, supra, the Board found that an em-
ployer’s unsubstantiated belief that the Union was re-
sponsible for a ‘‘sickout’’ did not justify the employ-
671NATICO, INC.
10 Park Inn Home for Adults, 293 NLRB 1082 (1989) (where the respondent
stopped making contributions 2 years before the contract expired, the union
was on notice of the repudiation of the obligation, despite intervening arbitra-
tion and discussion of the issue in negotiations).
11 Member Devaney agrees with the judge that, under the circumstances of
this case, the preferable approach is to view the Respondent’s April 2, 1986
letter as definitively putting the Union on notice that it had repudiated its obli-
gation to contribute to the pension fund. Thus, Member Devaney would agree
with the judge that this allegation is not barred by Sec. 10(b).
er’s withdrawal from several tentative agreements.
Similarly, Dry’s unsubstantiated assertions concerning
Zozofsky’s conduct or the opinions held by Local 1
and by its employees about the incentive plan do not
amount to good cause for the Respondent Employer’s
withdrawal from the incentive agreement. Further, the
Respondent Employer failed to show how it would
have been harmed by allowing the vote on March 13.
We therefore reverse the judge and find that the
General Counsel has met his burden of showing that
delaying the ratification vote did not provide the Re-
spondent Employer good cause for withdrawing from
the incentive agreement. We find that the Respondent
Employer, by withdrawing from the incentive plan
agreement, bargained in bad faith and without the in-
tention of reaching a final and binding collective-bar-
gaining agreement, in violation of Section 8(a)(5) and
(1).
2. The judge further found that the Respondent Em-
ployer violated Section 8(a)(5) and (1) by unilaterally
ceasing to make pension fund contributions. Contrary
to the judge, we find that this allegation is, as the Re-
spondent Employer contends, barred by Section 10(b).
The facts, as found by the judge or as undisputed in
the record, follow. The Respondent Employer was re-
quired by its 1982–1985 collective-bargaining agree-
ment with the Union to make payments into the pen-
sion fund. In April 1984, 20 months before the con-
tract expired, the Respondent Employer made its last
contribution. The charge alleging a failure to make
pension payments was filed August 19, 1986. Despite
judgment against it in Federal court in late 1985 in a
suit to compel it to contribute to the fund, the Re-
spondent Employer did not resume the required pay-
ments at any time during the term of the agreement or
after it expired. The pension fund was a subject of
sporadic discussion and a proposal by the Respondent
Employer in contract negotiations commencing in De-
cember. In an April 2, 1986 letter, in the course of im-
plementing its so-called ‘‘final offer,’’ to be effective
April 7, 1986, the Respondent Employer also informed
the Union, ‘‘[s]o there will be no mistake,’’ that it was
ceasing to make payments into the pension fund on
April 7. The judge found that this letter and similar
oral statements made in negotiations in late March
1986 constituted the first unambiguous notice to the
Union that the Respondent had repudiated its obliga-
tion to make payments into the fund. We disagree. The
moment when the Union was on notice that the Re-
spondent Employer was committing an unfair labor
practice—or, put another way, when a union ‘‘mis-
take’’ as to the meaning of the Respondent Employer’s
failure to make its required contributions to the pen-
sion fund was no longer reasonably possible—was
long past by late March or early April 1986. Even
more importantly, that moment was long past by the
contract’s expiration date, the operative date for the
running of the Section 10(b) period. We do not view
either the April 2 letter, the preceding oral ‘‘final
offer’’ statements, or the parties’ discussion of the pen-
sion fund in negotiations as tolling the Section 10(b)
period.
In Chemung Contracting Corp., 291 NLRB 773
(1988), the Board held that Section 10(b) bars a find-
ing that an employer has violated the Act by failing to
make contributions when (1) the relevant agreement
expired more than 6 months before the charge was
filed and (2) the union had notice outside the Section
10(b) period of the employer’s failure. Here, it could
not be clearer that the operative facts of the alleged
violation—the Respondent Employer’s refusal to fulfill
its contractual obligation to contribute to the fund and
the Union’s awareness of this failure—occurred out-
side the 6-month limitations period. Further, nothing in
the facts of this case persuades us that the Respondent
Employer’s conduct was inconsistent with its repudi-
ation of its obligation so as to push the occurrence of
either actual repudiation or notice to the Union into the
Section 10(b) period. The failure to make the payments
month after month was itself tantamount to repudi-
ation, and the Union was put on notice of the repudi-
ation by the ‘‘sheer length of time during which [the
Respondent Employer] consistently failed to make pay-
ments.’’10 We do not find that the Respondent Em-
ployer’s postexpiration conduct, consisting of a bar-
gaining proposal on the form that future pension obli-
gations might take and a few noncommittal remarks,
sufficed to lead the Union to believe that the Respond-
ent Employer was not persisting in its repudiation of
the obligation to contribute to the pension fund.
The allegation is, accordingly, dismissed.11
3. The judge dismissed an allegation that the Re-
spondent Employer violated Section 8(a)(5) and (1) by
ceasing payments to the Union’s legal fund as of Janu-
ary 30, 1987. We disagree.
The pertinent facts on this issue are undisputed. The
Respondent Employer had continued to make pay-
ments to the legal fund even after the contract expired
December 16, 1985. However, these payments were
stopped on January 30, 1987, when the Respondent
Employer withdrew recognition from Local 1 and rec-
ognized the Teamsters. No specific charge alleged this
as an unfair labor practice. However, at the opening of
the hearing on June 8, 1987, the General Counsel
amended the fourth consolidated complaint to allege
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 There can be no contention that the Respondent Employer did not have
an adequate opportunity to defend against the additional allegations. The com-
plaint was amended on June 8, 1987, the first day of the hearing, to include
the instant allegation. On June 1, the General Counsel had provided the Re-
spondent Employer with notice to amend the complaint. The amendment was
clearly within 6 months of the January 30, 1987 cessation of legal fund con-
tributions.
13 NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959), citing National Lic-
orice Co. v. NLRB, 309 U.S. 350, 369 (1940).
14 Ibid.
15 Because we have found above that the pension fund allegation included
in the August 19, 1986 charge was untimely, we need not address whether
the legal fund allegation was closely related to it.
16 The Supreme Court found in Fant Milling, as it had found in National
Licorice, ‘‘the unilateral wage increase was ‘of the same class of violations
as those set up in the charge . . . .’ The wage increase was ‘related to’ the
conduct alleged in the charge [refusal to bargain] and developed as one aspect
of that conduct ‘while the proceeding [was] pending before the Board.’’’ Ibid.
17 See, e.g., Davis Electrical Constructors, 291 NLRB 115 (1988); Fimco,
Inc., 282 NLRB 653 fn. 3 (1987); and Cobb Theatres, 260 NLRB 857 fn. 1
(1982), enfd. 711 F.2d 657 (6th Cir. 1983). See also Jack LaLanne Manage-
ment Corp., 218 NLRB 900, 913 (1975), enfd. 539 F.2d 292, 295 (2d Cir.
1976); Baughman Co., 248 NLRB 1346 fn. 2 (1980).
18 See M. J. Santulli Mail Services, 281 NLRB 1288, 1295 (1986); KBMS,
Inc., 278 NLRB 826, 849 (1986); and Hen House Market No. 3, 175 NLRB
596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970). No party argues that contribu-
tions to the legal fund did not constitute a mandatory subject of bargaining.
this cessation of payments to the legal fund as a sepa-
rate violation. In doing so, the General Counsel relied
on the original charge in Case 4–CA–10307–1, filed
August 19, 1986, which alleged, inter alia, an unlawful
refusal to make contractually required monthly pension
payments.
The Respondent Employer then amended its answer
to assert the allegation was time-barred under Section
10(b). The judge found merit to this contention. He
noted that the charges filed August 19, 1986, upon
which the General Counsel relied in amending the
complaint, dealt with misconduct occurring at least 5-
1/2 months before the alleged cessation of payments to
the legal fund and did not encompass this misconduct.
He further noted that later charges, which resulted in
the issuance of the third consolidated complaint, also
failed to allege this misconduct. The judge concluded
that this allegation was not grounded on or encom-
passed in any timely charge and should, accordingly,
be dismissed.
We disagree.12 It is well settled that a complaint
may be amended to include allegations ‘‘which are re-
lated to those alleged in the charge and which grow
out of them when the proceeding is pending before the
Board.’’13 That relation between charge and complaint
has been found where the allegation is ‘‘of the same
class of violations as those set up in the charge’’ and
is a ‘‘[continuation] of them in pursuance of the same
objects.’’14
This test has been met here. The legal fund allega-
tion is ‘‘of the same class’’ and has ‘‘the same object’’
as an allegation timely included in the charge in Case
4–CA–16362, filed February 4, 1987, and in the fourth
consolidated complaint.15 That charge included an alle-
gation that the Respondent Employer withdrew rec-
ognition from Local 1 on January 30, 1987.16 That
misconduct, yet another instance of repudiation of the
Respondent Employer’s bargaining obligation, occurred
on the same day as the Respondent Employer is al-
leged to have ceased payments to Local 1’s legal fund.
No basis exists, therefore, for finding that the allega-
tion is untimely or otherwise presents a denial of due
process for the Respondent Employer.17
It is undisputed that the Respondent Employer
ceased contributions to the Union’s legal fund on Janu-
ary 30, 1987. It is also well settled that contractually
required contributions to a union fund for the employ-
ees’ benefit are encompassed within the terms and con-
ditions of employment and in the absence of waiver
survive the collective-bargaining agreement.18 As there
is no claim of waiver, we conclude that the Respond-
ent Employer continued to be obligated to make these
legal fund contributions, and that its failure to do so,
commencing January 30, 1987, violated Section 8(a)(5)
and (1).
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 6.
‘‘6. By withdrawing recognition from Local 1 as the
exclusive collective-bargaining representative of the
employees in the appropriate bargaining unit on Janu-
ary 30, 1987, and refusing to bargain with Local 1
since that date; by bargaining in bad faith and without
an intention of reaching a final and binding collective-
bargaining agreement by repudiating without good
cause on March 6, 1986, its agreement to implement
a wage incentive plan for a period of 60 days, subject
to ratification by the unit; by unilaterally reducing the
wages of its employees by $1.43 per hour since April
7, 1986, before any lawful impasse, with a cor-
responding reduction of vacation benefits for employee
Robert Ferguson; and by unilaterally ceasing since Jan-
uary 30, 1987, to make legal fund contributions, the
Respondent Employer engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.’’
ORDER
A. The National Labor Relations Board orders that
the Respondent Employer, Natico, Inc., Pennsauken,
New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize United Independent Union,
Local 1 as the exclusive collective-bargaining rep-
resentative of its employees in the appropriate unit.
The appropriate unit, as set forth in section 2, article
2.1, of the last expired collective-bargaining agreement
between Respondent Employer and Local 1, effective
by its terms for the period December 16, 1982, to De-
cember 16, 1985, is:
673NATICO, INC.
19 Any additional amounts necessary to satisfy our make-whole remedy shall
be determined as set forth in Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979).
20 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
All employees with the exception of timekeepers,
clerks, office employees and non-working fore-
men and non-working supervisors in charge of
any class of labor.
(b) Bargaining in bad faith and without an intention
of reaching a final and binding collective-bargaining
agreement by repudiating without good cause its agree-
ment to implement a wage incentive plan for a period
of 60 days, subject to ratification by the unit.
(c) Failing and refusing to bargain collectively with
Local 1 by unilaterally reducing the wages of its em-
ployees and correspondingly reducing vacation bene-
fits, and by unilaterally ceasing to make legal fund
contributions.
(d) Recognizing Teamsters Local 676 a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO as the
exclusive collective-bargaining representative of the
employees in the appropriate unit, and from applying
the terms and conditions of the collective-bargaining
agreement negotiated with Teamsters Local 676 cov-
ering that unit (although this should not be construed
to require or permit the varying or abandoning of any
provision which increased wages and benefits over
those which previously existed), unless and until
Teamsters Local 676 is certified by the National Labor
Relations Board as the exclusive collective-bargaining
representative for the unit.
(e) Providing assistance to Teamsters Local 676 by
canceling overtime to encourage its employees to at-
tend a union meeting sponsored by Local 676.
(f) Unlawfully polling its employees about their de-
sire to be represented by Local 1 or Teamsters Local
676.
(g) Threatening its employees that their hourly wage
rate would continue to be cut until they withdrew their
support from Local 1.
(h) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize Local 1 as the exclusive collective-
bargaining representative of its employees in the ap-
propriate unit, and, on request, meet and bargain with
Local 1 concerning wages, hours of employment, and
other terms and conditions of employment and, if an
understanding is reached, embody such understanding
in a signed agreement.
(b) Make its employees whole by paying legal fund
contributions as provided in its last expired collective-
bargaining agreement with Local 1, which have not
been paid and which would have been paid in the ab-
sence of its unlawful discontinuance of these pay-
ments19 and continue those payments until such time
as it negotiates in good faith to a new agreement or
to an impasse.
(c) Post at its Pennsauken, New Jersey facility cop-
ies of the attached notice marked ‘‘Appendix A.’’20
Copies of the notice on forms provided by the Re-
gional Director for Region 4, after being signed by the
Respondent Employer’s authorized representative, shall
be posted by Respondent Employer immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent Employer to ensure that
the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent Employer has taken to comply.
B. The Respondent Union, Teamsters Local 676 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, its
officers, agents, and representatives shall take the ac-
tion set forth in section B of the judge’s recommended
Order.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize United Inde-
pendent Union, Local 1 as the exclusive collective-bar-
gaining representative of our employees in the appro-
priate unit as set forth in section 2, article 2.1, of the
last expired collective-bargaining agreement between
Natico, Inc. and Local 1, effective by its terms for the
period December 16, 1982, to December 16, 1985:
All employees with the exception of timekeepers,
clerks, office employees, and non-working fore-
men and non-working supervisors in charge of
any class of labor.
WE WILL NOT bargain in bad faith and without an
intention of reaching a final and binding collective-bar-
gaining agreement by repudiating without good cause
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
our agreement to implement a wage incentive plan for
a period of 60 days, subject to ratification by the unit.
WE WILL NOT fail and refuse to bargain collectively
with Local 1 by unilaterally reducing the wages of our
employees and correspondingly reducing vacation ben-
efits, and by unilaterally ceasing to make legal fund
contributions.
WE WILL NOT recognize Teamsters Local 676 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO as
the exclusive collective-bargaining representative of
the above-noted appropriate unit and
WE WILL NOT apply the terms and conditions of any
collective-bargaining agreement between Natico, Inc.
and Teamsters Local 676 covering that unit (although
this should not be construed to require or permit vary-
ing or abandoning any provision which increases
wages and benefits over those which previously ex-
isted), unless and until Teamsters Local 676 is certified
by the National Labor Relations Board as the exclusive
collective-bargaining representative for the unit.
WE WILL NOT provide assistance to Teamsters Local
676 by canceling overtime to encourage employees to
attend a union meeting sponsored by Local 676.
WE WILL NOT unlawfully poll you about your desire
to be represented by Local 1 or Teamsters Local 676.
WE WILL NOT threaten you that your hourly wage
rate would continue to be cut until you withdrew your
support from Local 1.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize Local 1 as the exclusive collec-
tive-bargaining representative of our employees in the
above-noted appropriate unit and, on request, bargain
with Local 1 concerning wages, hours of employment,
and other terms and conditions of employment and, if
an understanding is reached, embody that under-
standing in a signed agreement.
WE WILL make you whole by paying legal fund con-
tributions as provided in our last expired collective-
bargaining agreement with Local 1, which have not
been paid and which would have been paid in the ab-
sence of our unlawful discontinuance of those pay-
ments, and continue those payments until we negotiate
in good faith to a new agreement or to an impasse.
NATICO, INC.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT act as the exclusive bargaining rep-
resentative of the unit employees employed by Natico,
Inc., at its Pennsauken, New Jersey facility unless and
until we are certified by the National Labor Relations
Board as the exclusive collective-bargaining agent for
the unit employees. The appropriate unit, as set forth
in section 2, article 2.1, of the last expired collective-
bargaining agreement between Natico, Inc. and United
Independent Union, Local 1, effective by its terms for
the period December 16, 1982, to December 16, 1985,
is:
All employees with the exception of timekeepers,
clerks, office employees, and non-working fore-
men and non-working supervisors in charge of
any class of labor.
WE WILL NOT give effect to any collective-bar-
gaining agreement with Natico, Inc. covering the
aforenoted unit employees.
WE WILL NOT in any like or related manner restrain
or coerce employees of Natico, Inc. in the exercise of
the rights guaranteed them in Section 7 of the Act.
TEAMSTERS LOCAL 676 A/W INTER-
NATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL–CIO
Henry R. Protas, Esq., for the General Counsel.
David F. Girard-DiCarlo, Esq. and Howard I. Hatoff, Esq.
(Blank, Rome, Comisky & McCauley), of Philadelphia,
Pennsylvania, for the Respondent Employer.
William Einhorn, Esq. (Sagot and Jennings), of Philadelphia,
Pennsylvania, for the Charging Party.
David Seliger, Esq. (Tomar, Seliger, Simonoff, Adourian &
O’Brien), of Philadelphia, Pennsylvania, for the Respond-
ent Union and Party in Interest.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These consoli-
dated cases were heard on 8 through 12 June and 22 through
675NATICO, INC.
1 At the Respondent Employer’s Chicago facility, the production and main-
tenance employees have been represented by the United Auto Workers and the
truckdrivers by the Teamsters for approximately 40 years. The United Paper
Workers have represented the production and maintenance employees and
truckdrivers at Natico’s Florence, Kentucky facility since it opened in 1969.
24 June 1987 in Philadelphia, Pennsylvania. The underlying
original charges in Case 4–CA–15707 were filed by the
United Independent Union, Local 1 (Charging Party, Local 1,
or the Union) on 1 April 1986. The Charging Party filed ad-
ditional charges on 12 June 1986, 19 August 1986, 4 Feb-
ruary 1987 and 27 April 1987 (Cases 4–CA–15883, 4–CA–
16037–1, 4–CA–16363, and 4–CA–16570). These charges
were all filed against Natico, Inc. (Respondent Employer or
Natico). On 7 April 1987, the Charging Party also filed
charges against Teamsters Local 676 a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America (Teamsters, Respondent Union, or Party in
Interest) in Case 4–CB–5411.
The charges in Case 4–CA–15707 gave rise to a complaint
and notice of hearing on 30 May 1986. On 30 September,
an order consolidating cases, consolidated complaint and no-
tice of hearing in Cases 4–CA–15707 and 4–CA–15883
issued. On 29 October 1987, an order further consolidating
cases, second consolidated complaint and notice of hearing
in Cases 4–CA–15707, 4–CA–15883, and 4–CA–16037–1
issued. On 9 April 1987, an order further consolidating cases,
third consolidated complaint and notice of hearing in Cases
4–CA–15707, 4–CA–15883, 4–CA–16307–1, and 4–CA–
16363 issued. On 19 May 1987 an order further consoli-
dating cases, fourth consolidated complaint and notice of
hearing in Cases 4–CA–15707, 4–CA–15883, 4–CA–16037–
1, 4–CA–16363, 4–CA–16570, and 4–CB–4511 issued
(amended further at the hearing).
In essence, it is alleged that Respondent Employer bar-
gained unlawfully and in bad faith with Local 1, the then in-
cumbent union, in violation of Section 8(a)(5) of the Na-
tional Labor Relations Act (the Act) by, inter alia, repudi-
ating its agreement to implement a wage incentive plan; uni-
laterally implementing a $1.43-per-hour wage cut; unilater-
ally reducing employee Ronald Ferguson’s vacation pay by
$1.43 per hour; and cessation of contributions to the pension
plan and legal fund. It is also alleged that Respondent unlaw-
fully withdrew recognition from Local 1 in violation of Sec-
tion 8(a)(5) of the Act. It is alleged that Respondent Em-
ployer violated Section 8(a)(3) of the Act by refusing to per-
mit its employee Robert Zozofsky to work as a day-shift ex-
truder operator. Further, it is alleged that Respondent Em-
ployer and the Respondent Union violated Section 8(a)(2)
and Section 8(b)(1)(A), respectively by Natico’s recognition
and the acceptance thereof by the Teamsters. In addition, it
is alleged that Respondent Employer independently violated
Section 8(a)(2) by failing to schedule overtime on 22 April
1987 in efforts calculated to assist the Teamsters in an up-
coming election.
It is alleged that the Respondent Employer violated Sec-
tion 8(a)(1) of the Act by unlawfully polling its employees
regarding their desires to be represented by either Local 1 or
the Teamsters. Still further, it is alleged that the Respondent
Employer independently violated Section 8(a)(1) of the Act
by threatening an employee that a wage cut would remain
until unit employees withdrew their support for Local 1.
Respondent Employer and Respondent Union filed timely
answers conceding, inter alia, jurisdictional facts and the su-
pervisory and agency status of certain individuals but deny-
ing the commission of any unfair labor practices.
Based on the record as a whole, including my observation
of the demeanor of the witnesses, and after careful consider-
ation of the posttrial briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent Employer, Natico, Inc., a Delaware cor-
poration is engaged in the manufacture of fiber, steel, and
plastic drums at a plant located in Pennsauken, New Jersey
(the Pennsauken plant). The Respondent Employer also
maintains facilities in Chicago, Illinois, and Florence, Ken-
tucky. During the past year, in connection with Respondent
Employer’s Pennsauken plant, it sold and shipped products,
goods, and materials valued in excess of $50,000 directly to
points outside the State of New Jersey. The Respondent Em-
ployer admits, the record supports, and I find that it is now,
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, the record supports, and I find that the
Charging Party, United Independent Union, Local 1, and the
Respondent Union, Teamsters Local 676 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, are, and have been at all times material,
labor organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent Employer, Natico, manufactures steel,
fiber, and plastic drums, as well as components for those
drums. The Company has three manufacturing facilities—one
in Chicago, Illinois, one in Florence, Kentucky, and a third
in Pennsauken, New Jersey. The allegations here relate solely
to Natico’s Pennsauken location, a facility in operation since
1958.
Natico’s production and maintenance employees employed
at Pennsuaken had been represented by the Pulp and Sulfite
Workers Union from 1958 until 1970 when that union was
decertified. Since 1960, the truckdrivers at that location have
been represented by the Teamsters, the Respondent Union. In
1970, on the basis of authorization cards, the Respondent
Employer recognized Local 1, the Charging Union, as the
collective-bargaining representative for the production and
maintenance employees at Pennsauken. The truckdrivers at
that location continued to be represented by the Teamsters.
Natico’s other facilities have also long been unionized.1
The most recent collective-bargaining agreement between
Natico and Local 1 covering the production and maintenance
unit at Pennsauken was effective by its terms from December
16, 1982, until December 16, 1985 (G.C. Exh. 3). On 5 No-
vember 1985, Natico and Local 1 commenced negotiations
for a new contract. Local 1 was represented by President
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As noted previously, it is alleged, inter alia, that subsequently, the Re-
spondent Employer unlawfully refused to make contributions to the Union
Legal Fund (G.C. Exh. 2) and pension plan (G.C. Exh. 1ff, par. 10(a)).
3 Although it is undisputed that Chiappardi introduced the incentive idea,
counsel for Respondent Employer contends that Chiappardi did not want ne-
gotiations to succeed. He represented that for many years, the Respondent Em-
ployer and Local 1 had an amicable collective-bargaining relationship and par-
ticularly with Dominic Consentino, then secretary-treasurer and chief spokes-
person for that Union but all this changed with the active participation of
Chiappardi in the instant negotiations. I fail to discern any cogent basis for
the Respondent Employer to take comfort in such history given Dry’s testi-
mony that he paid off Consentino for labor peace and for which the latter
pleaded guilty at a criminal trial. Although Dry testified as a prosecution wit-
ness against Chiappardi, the latter was acquitted. Counsel for Respondent Em-
ployer failed to articulate any cognizable basis to justify his assertion that as
a result of the criminal trial, Chiappardi had no intention of reaching an agree-
ment on a collective-bargaining contract.
Francis Chiappardi (also president of the National Federation
of Independent Unions), Secretary-Treasurer Ronald Fer-
guson, and Shop Stewards Charles McCool, Robert
Zozofsky, Douglas Spavlik Sr., and Charles Loggia. These
union representatives with the exception of Chiappardi were
all employees of Natico. In large part, Chiappardi and Fer-
guson served as spokesmen for the Union’s bargaining com-
mittee. The Respondent Employer’s chief spokesman was
Preston Dry, Natico’s president and he was assisted by Plant
Manager Donald Benson and Maintenance Manager Okeh
Ratliff. The first meeting was the only bargaining session not
attended by Dry. Essentially, all that occurred at that session
was an exchange of proposals (G.C. Exhs. 5 and 6). The Re-
spondent Employer’s proposals only dealt with noneconomic
items and was labeled as such (G.C. Exh. 5).
The parties next met on 20 November. Dry outlined a host
of wasteful practices at the Pennsauken facility impacting on
its ability to be competitive. Thus, Dry complained, inter
alia, of widespread alcohol and drug abuse, employees leav-
ing work early but having someone else punch them out
(theft of time), property damage, and the difficulties getting
some employees to work overtime. The union bargaining
committee acknowledged that these problems existed and
noted a few additional problems impacting on morale and
overall efficiency at the Pennsauken facility. For example,
the union committee complained of the Company’s use of
temporary employees noting that they have less at stake in
production than regular employees. With regard to the seri-
ous drugs and alcohol problem, the Union was amenable to
the Company’s proposal to institute testing but asked the
Company to come up with some plan for treatment. The par-
ties professed their desire to work toward resolving these
various problems.
The next bargaining session was held on 3 December. Ba-
sically, the Company explained and the parties discussed
each of the Company’s 18 noneconomic proposals (G.C.
Exh. 6), item by item. These discussions continued at the
next session on 6 December with the parties arriving at
agreement on some of the noneconomic proposals.
The Respondent Employer first presented its economic
proposals (G.C. Exh. 8) to Local 1 at the bargaining session
on 9 December, which included a 25-percent reduction in
hourly wages and a two-tier wage structure whereby new
employees could be hired at a lower wage rate. Other fea-
tures of Respondent Employer’s economic package included
proposed changes in insurance benefits, holiday and vacation
benefits, the elimination of the contractual cost-of-living ad-
justment and Union Legal Fund and to ‘‘replace the current
pension with Company/Union money purchase plan.’’ As for
the Union Legal Fund, Dry testified that he ‘‘basically point-
ed out that it was a cost item that I thought could be deleted
from the contract [G.C. Exh. 3, p. 10] without much pain to
the employees as a whole.’’ There was little or nothing else
said about that subject at that session. Similarly, there was
little or nothing said about replacing the pension with the
money purchase plan. Thus, the money purchase plan was
not explained nor were any details given. With regard to the
contractual pension plan, the Respondent Employer had
stopped making payments since 1984 and this subject was
then tied up in collateral litigation. Ferguson asked Dry about
the past pension funds he believed due the Union and was
told by Dry that he would talk to the ‘‘chairman of the board
(of Natico)’’ about these back payments.2 The parties were
far apart on the economic items at the close of that session,
particularly in the area of wages, with the Respondent Em-
ployer proposing concessions and Local 1 asking for wage
increases and profit sharing as reflected in the Union’s origi-
nal proposals of 5 November (G.C. Exh. 5).
The next bargaining session was held on 11 December.
Dry spoke of the need to be competitive and of the problems
some of the larger companies were having in the drum indus-
try. Union President Chiappardi suggested an incentive plan
to address the Company’s concerns over production and to
remain competitive while at the same time satisfying the de-
sires of employees for improved compensation. Although the
mechanics or details of such a program had not been worked
out by the Union and it was only discussed most generally
at that session, the incentive concept appealed to Dry.3 For
the most part, bargaining over the next 3 months focused on
an appropriate formula for dealing with incentives. Thus, the
parties’ initial wage proposals were put on hold.
The parties met consecutively for 3 days on 17, 18, and
19 December. The discussions regarding the incentive idea
intensified. Dry prepared a chart showing production figures
for the previous year. Ferguson expressed the view that em-
ployees would more easily understand a plan based on the
number of drums produced per man hour (DPMH) rather
than treating labor cost as a percentage of sales as reflected
on Dry’s chart (G.C. Exh. 9). Dry acknowledged that Fer-
guson’s point had merit and almost immediately began to
prepare new charts with DPMH as the focus for the incentive
system. Local 1 also raised a number of ‘‘concerns’’ that had
to be dealt with before the parties could arrive at an appro-
priate DPMH formula. Thus, the parties discussed, inter alia,
theft of time, the need to monitor overtime, the status of
foremen, employees working outside their job classification,
how to count plastic department employees not engaged in
producing drums, and the need to maintain equipment in
proper working order.
At the meeting of 19 December, Dry agreed that the Com-
pany would pay its employees for the two Christmas and
New Year’s holidays and in turn asked the Union to agree
to its proposal of a 7-day strike/lockout notice. The Union
agreed.
The parties reconvened on 26 December and met again the
following day. Dry presented the Union with additional
charts showing, inter alia, the drums per man hour (DPMH)
produced for the previous 11 months (G.C. Exh. 11) and
DPMH with corresponding wage rates as a basis for the in-
677NATICO, INC.
4 At 3.2 DPMH employees would received $1.63 less per hour in wages
than their then current straight time base hourly wage rate but would earn ap-
proximately a 20-cent bonus for each additional tenth of a point (G.C. Exh.
10). Thus, under Dry’s incentive proposal, at 4.0 DPMH, the base rate would
jump from $6.52 per hour to $8.15. (Id.)
5 All dates hereinafter refer to 1986 unless otherwise indicated.
6 At a membership meeting in October 1985 before any negotiations com-
menced, the unit employees voted to provide the union committee with strike
authorization.
centive system (G.C. Exhs. 10 and 12). Dry informed the
union committee that for the past year, the Pennsauken facil-
ity produced drums at the rate of 3.2 DPMH but needed 4.0
DPMH to make a profit.4 Dry proposed 4.0 DPMH as the
base for the incentive plan and any amount produced over
that figure would result in a bonus. The Union expressed
doubts that 4.0 was attainable or realistic and countered with
3.7 DPMH as the ‘‘break-even’’ point. Further, the Union re-
peated some of its concerns impacting on incentives and pro-
posed, inter alia, that holiday and vacation hours not be
counted against employees. The parties also discussed staff-
ing requirements for each department under the proposed in-
centive system.
The parties met again on 3 January 1986.5 Dry presented
the union committee with still another chart, this time indi-
cating a projected layout for 4.5 DPMH which Dry asserted
was an attainable figure (G.C. Exh. 13). At that rate, the av-
erage employee would earn a base rate of $8.93 per hour as
compared with their then current rate of $7.95 per hour.
However, the union committee expressed doubt that even 4.0
could be attained and proposed 3.8 DPMH as the break-even
point. Although there was no agreement, Dry indicated a
willingness to come down to 4.0 DPMH.
Another area discussed at the 3 January session was the
point in which drums were to be considered completed for
counting purposes under the incentive program. The Com-
pany wanted the drums to be counted as shipped. The Union
however complained that drums are not always shipped im-
mediately and asked that any delay not be charged against
employees. Instead, the Union proposed that drums be count-
ed at the seamer or crimper where employees put the ends
on steel and fiber drums respectively. The parties also dis-
cussed how to factor machine failure or breakdown time
under the incentive system. McCool proposed that break-
downs over 15 minutes be absorbed by the Company and
that shorter breakdowns be charged against employees.
Still further, the parties discussed staffing under the pro-
posed plan. The Company then employed approximately 104
employees. Under the Company’s projection, only 84 em-
ployees would satisfy the staffing requirements to make the
plan a success (G.C. Exh. 13). The Union argued that a
greater number of employees were required to effectively run
the plant.
Although the parties had still not agreed on a number of
features regarding the incentive program, Chiappardi sug-
gested a 60-day trial period and Dry agreed in principle. The
parties were aiming for 27 January as a starting date. Fer-
guson proposed that employees not lose any wages during
the trial period and that incentives should provide only in-
creased earnings. Dry on the other hand noted, inter alia, that
employees needed incentive to increase productivity. Thus,
Dry insisted on a ‘‘down side.’’
The parties continued to negotiate the terms of the incen-
tive program over the next three sessions held on 15, 17, and
21 January. The Union which had been at 3.8 DPMH and
the Company at 4.0 eventually agreed to 3.9 as the base rate
for the incentive system. Thus, at 4.0 the employees would
start earning the bonus. The Company also agreed to the
Union’s position regarding the need to monitor overtime and
to permit the Union to assist therewith and also agreed not
to count customer rejects during the trial period as suggested
by the Union.
Dry was anxious to commence the incentive program on
27 January as originally suggested by Chiappardi. The latter
asked Dry if he was prepared to submit an entire package
which Dry refused to do at that time. It is undisputed that
there were ‘‘loose ends’’ which the parties had to address al-
though Dry testified that at the close of the 21 January ses-
sion, he understood that the parties had an agreement which
was to be implemented on 27 January. According to Fer-
guson, he conveyed to Dry that some factors impacting on
the plan’s operation still had to be resolved and that it was
also necessary to get input from the Union’s membership be-
fore any agreement was reached.
A few days after the meeting of 21 January, the union
committee met with unit employees in the Pennsauken plant
cafeteria to explain the incentive program. The employees re-
acted negatively pointing out such problem areas as machin-
ery and equipment breakdowns, and the use by Natico of
temporary employees and foremen on unit jobs, individuals
with no stake in the success of the program. The employees
also took this opportunity to express their displeasure at hav-
ing to make $10 weekly contributions toward their own
health and welfare benefits. Ferguson promoted the incentive
idea but he met resistance from employees. As testified by
employee William Green, employees were informed by Fer-
guson, ‘‘The only way we can get you guys a raise is by
the incentive program.’’ Green also observed that employees
had difficulty understanding the drums per man hours con-
cept and declared, ‘‘the people didn’t want it.’’
The objections raised by employees to ‘‘incentives’’ were
passed on to Dry at the next bargaining session, 28 January.
The Union’s efforts to broaden negotiations to encompass the
contract package met with resistance from Dry. The latter
stated that he could not present a full contract package until
he knew whether the incentive was going to work. Thus, the
parties largely confined their discussion to the incentive pro-
gram.
The parties met again on the following day, 29 January.
Chiappardi told Dry that he was providing him with the 7-
day strike notice.6 Dry expressed displeasure at this develop-
ment but still provided some inducements to help the Union
sell ‘‘incentives’’ to the membership, as suggested by the
union committee. Thus, Dry agreed to suspend the $10 week-
ly employee contributions toward the Company’s insurance
plan during the incentive trial period and also agreed to
change the Company’s vacation pay formula to the benefit
of employees.
The parties were assisted by mediation for the first time
at the next bargaining session on 13 February when they
were joined by Mediator Harvey Young. For the first time
since early in the negotiations, Dry reintroduced the subject
of a two-tier pay scale, to wit, paying newly hired employees
a lower hourly wage rate as well as providing them reduced
benefits. In response, the Union discounted the two-tier pay
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The record disclosed that almost from the outset, McCool expressed seri-
ous doubts that employees could meet the standards proposed by Dry vis-a-
vis DPMH. As such, he opposed the incentive program.
8 The record disclosed a conflict in testimony as to whether a meeting oc-
curred on 15 February as well as some confusion regarding matters discussed
at the sessions of 25 and 27 February. However, the only material conflict is
whether the Union conveyed to Respondent that the agreement on the incen-
tive plan was subject to employee ratification.
9 For reasons noted infra, I find, that any agreement on the incentive pro-
gram was subject to ratification, as contended by the General Counsel.
10 Although Benson, provided a somewhat different account I credit Fer-
guson. On the basis of demeanor factors and noting that Benson at times was
equivocal, unresponsive, and exhibited a somewhat selective or vague recall,
I found him less than forthright or candid as a witness. For example, Benson
was asked whether he and Ferguson had an ‘‘agreement’’ to reschedule the
meeting to 13 March responded, ‘‘He [Ferguson] may have asked if they
could use the lunchroom at that time. I don’t specifically recall it.’’ On the
other hand, Ferguson who testified at great length over several days, im-
pressed me as responsive, consistent, frank, and plausible. For these and rea-
sons stated more fully, infra, I found Ferguson to be credible and reliable.
However, I do not find, for reasons noted infra, that Benson agreed to post-
pone the date for the implementation of the plan or that he had such authority.
11 According to Dry, the Union did not respond to his announcement that
he was withdrawing from his agreement on ‘‘incentives’’ and made no effort
to get him to reconsider. In the total circumstances of this case, including my
assessment of Ferguson as a reliable witness, I find Dry’s assertion implau-
sible and incredible.
scale as unnecessary because of the contemplated use of the
incentive plan. The Union, largely at the urging of McCool,7
moved off their earlier agreement with the Company at 3.9
DPMH as the standard under the incentive system and was
now proposing 3.8. Dry countered by raising the base rate
standard to 4.0. The Union stated it was willing to return to
3.9 if the Company would continue making payments to the
Union pension fund and agree to the Union’s medical plan.
As testified by Dry, this was another Union attempt ‘‘to tie
pension and the medical plan to the incentive, which I kept
saying. I couldn’t do until I knew if the incentive was going
to work.’’ It appears that by the end of the session the par-
ties were in agreement again on 3.9. As testified by McCool,
although at each meeting the Union asked for 3.8, ‘‘we al-
ways wound up at 3.9 D.P.M.H.’’
At the meeting of 27 February, the parties finally agreed
to implement the incentive program.8 As part of the agree-
ment, the parties agreed that the break-even point would be
3.9 DPMH with a new hourly base rate of $5.88; the old rate
was $7.31 (G.C. Exhs. 15 and 16). Further, Dry agreed to
incorporate into the incentive plan a number of features re-
cently proposed by the Union. Thus, Dry agreed that the
Union would be permitted two representatives or monitors to
ensure that production will be recorded accurately and to also
help with problems on the production floor as they arose.
The Union asked for and was granted by Dry, cabinet space
in an office for the Union to maintain its records under the
plan. Dry also agreed with McCool’s idea an computing ma-
chine or equipment failure. Under this agreement, downtime
of 15 minutes or less would be absorbed by employees and
the Company would absorb downtime for any longer period.
Dry pledged to have the winder, a key production machine,
in good working order by the time the incentive plan was to
begin on 10 March (a date proposed by the Union). On an-
other item, Dry agreed not to factor time worked by foremen
against employees under the plan.
Still further, the parties negotiated, compromised and fi-
nally agreed on the point at which drums were to be deemed
completed for counting purposes. As noted previously (fn. 8)
in dispute is whether the incentive program was subject to
employee ratification.9
Within a few days of the 27 February bargaining session,
arrangements were made for the Union to hold its member-
ship ratification meeting in the plant cafeteria on Thursday,
6 March, at 11:30 a.m. However, sometime during the week
of 3 March, Plant Manager Benson told Ferguson that the
Union could not hold its meeting as scheduled because the
Company had customers coming into the plant and he did
not think it would be a good idea to have a meeting at that
time. Benson suggested that the union meeting be held at an-
other time that week. Ferguson responded that another meet-
ing could not then be arranged because of his and
Chiappardi’s schedule. Instead, Ferguson got Benson to agree
to provide the use of the cafeteria for the union meeting the
following Thursday, 13 March.10
On Tuesday or Wednesday, 11 or 12 March. Dry sum-
moned the union committee to meet with him at the Penn-
sauken plant. There, Dry admittedly expressed anger that the
incentive plan had not been implemented and ascribed sole
responsibility to the Union. Dry accused Shop Steward
Zozofsky of telling maintenance employees to refuse to co-
operate with the Company by declining to work the weekend
to repair the winder. As noted previously, Dry had pledged
to the Union that he would have the winder in working order
by 10 March, the time the incentive program was scheduled
to commence. Zozofsky denied the accusation. According to
Dry, he had to rely largely on supervisory help to repair the
winder. Dry expressed doubts regarding the Union’s commit-
ment to ‘‘incentives’’ pointing out, inter alia, that the Union
did not hold its meeting on 6 March, as scheduled. Accord-
ing to Dry, if the Union had really been interested, it would
have found a way to hold that meeting. Dry announced that
he was taking the incentive plan off the table. Ferguson tried
to reassure Dry that the union committee favored incentives
and that he was certain that the employees were going to rat-
ify the plan. He also noted that it was Benson and not the
Union who canceled the meeting that had been set for 6
March. Ferguson was unable to get Dry to reconsider. Thus,
at the close of that session, the incentive plan was no longer
on the table.11
The Union conducted its meeting of unit employees on 13
March as scheduled, but no ratification vote was taken. Fer-
guson explained that because Dry had taken the ‘‘incen-
tives’’ off the table, the Union saw no purpose in conducting
a ratification vote. Basically, Ferguson informed the unit em-
ployees of Dry’s stated reasons for dropping incentives in-
cluding his questioning of the Union’s overall commitment
and his accusation that Zozofsky told maintenance employees
not to come to work on Saturday, 8 March. Ferguson told
the assembled group of the Union’s disagreement with Dry’s
comments and that Dry had no right to drop incentives and
was bargaining in bad faith.
The record disclosed virtually no conflict in testimony re-
garding the negotiations that transpired over the next three
bargaining sessions which were held on 27, 28, and 31
March. On 27 March, the parties met for the first time since
Dry had removed ‘‘incentives’’ as a subject for negotiations.
At that session, the parties dealt variously through the medi-
ator and also face to face. Dry reiterated his last stated posi-
tion to wit, that he would no longer bargain over ‘‘incen-
679NATICO, INC.
12 Apparently, the letters of Dry and Chiappard dated 2 April and 3 April
respectively crossed in the mail.
13 According to the General Counsel, the Respondent Employer had merely
been negligent in making pension contributions and had not previously
claimed that it was not under any such obligation. Thus, the General Counsel
asserts, contrary to Respondent Employer, that this allegation is not time
barred by Sec. 10(b) of the Act.
14 The General Counsel contends that during this period, the parties were
no longer bargaining at ‘‘arm’s length’’ and Respondent Employer’s evidence
relative to these later negotiating sessions is ‘‘tainted as self-serving.’’ Thus,
the General Counsel points out, that these later sessions were conducted after
Respondent had, inter alia, unlawfully withdrawn from its agreement on ‘‘in-
centives’’ and that they were also held in the face of viable unfair labor prac-
tice charges (giving rise to the initial complaint).
tives.’’ Further, Dry offered a total contract package which
he characterized for the Union as the Company’s ‘‘final
offer’’ to take effect 11 days later on 7 April. This final offer
included reducing wages $1.43 an hour, decreasing by three
the number of personal holdings and terminating the union
pension plan and replacing it with a money purchase plan.
Dry asserted at that same 27 March session that the parties
were at impasse which the Union quickly disputed. The
Union for its part revised its original contract demands, drop-
ping some and reducing others on both economic and non-
economic items. (See bargaining notes for 27 March: R. Exh.
14; G.C. Exh. 17.) For example, the Union’s original pro-
posal (G.C. Exh. 5) called for an additional 50-cent-per-hour
differential for night-shift employees which the Union re-
duced to 30 cents at the 27 March session (R. Exh. 14). The
Union also reduced its original demand to increase the Com-
pany’s contribution to the pension fund from 40 cents per
hour to 25 cents per hour. (Compare G.C. Exh. 3 with G.C.
Exh. 5.) In addition, the Union dropped, inter alia, its de-
mand for a dental plan, its demand for Easter Monday as a
holiday, and demand relating to uniforms and cost-of-living
raises. The parties remained firm on some noneconomic pro-
posals and with some others, agreement was reached. With
regard to wages, the Union initially proposed a 15-percent
across-the-board increase for each of the 3 years of the con-
tract (G.C. Exh. 5). Ferguson testified without contradiction
that this proposal averaged out to approximately $1.20 per
hour for each of the 3 years. On 27 March, the Union re-
duced its initial wage demand to $1 per hour the first year
and 75 cents per hour for each of the next 2 years (G.C. Exh.
17). The next session was held the following day.
At the bargaining session on 28 March, Dry responded to
some of the Union’s modified demands of the previous day.
For example, the Company offered to provide night-shift em-
ployees a 20-cent (.05 increase) per-hour differential and
agreed to the Union’s vacation pay proposal.
The Company also showed flexibility with regard to non-
economic issues. In this regard, the record disclosed that the
Company initially proposed to use ‘‘inverse seniority’’ to
man the plant under certain circumstances. Under this pro-
posal, the Company wanted to ensure that it could staff the
plant on so-called seniority days by requiring the least senior
employees to work if needed, and the Company was unable
to attract volunteers. The Company dropped this proposal at
this session. Further, the Company also initially proposed,
‘‘A five day time limit on filing a grievance.’’ Under the
most recently expired contract, there was no time limit. The
Company modified its proposal to the extent that it agreed
to remedy the grievance if it failed to respond thereto within
5 days. The Union agreed to this modification thereby mani-
festing movement by both parties. Although the Company
demonstrated some movement on both economic and non-
economic issues, it failed to respond to the Union’s latest
wage demands at $1, 75 cents, and 75 cents per hour each
year respectively over the proposed 3-year contract.
The parties reconvened on 31 March. The Union lowered
its latest wage proposal from $1 per hour to 85 cents per
hour for the first year of the contract and continued to pro-
pose 75 cents per hour for each of the next 2 years. Further,
the Union lowered its latest night-shift differential from 30
cents per hour to 25 cents per hour. The Company did not
respond to those proposals or make any other proposal or
counterproposal. Instead, the Company reiterated its pre-
viously announced intention to implement its final offer on
7 April. The Union was also presented with a summary plan
description of the Company money purchase plan (G.C. Exh.
18) and told that it too would be implemented on 7 April.
According to the Union, it had not been presented with any
material relative to the money purchase plan prior to this
meeting. The parties agreed to meet again on 9 April. The
next day, 1 April, the Union filed the initial unfair labor
practice charges in the instant consolidated cases.
By letter dated 2 April, Dry outlined the contents of his
final offer which had already been communicated to the
Union verbally at the most recent sessions (G.C. Exh. $19).
The letter noted, inter alia, across-the-board reduction of 1.43
per hour in all classifications, elimination of three personal
holidays, a cessation of contributions to the union pension
plan and an increase of the night-shift differential of 20 cents
per hour. With regard to implementing these items and the
reasons therefore, Dry added as follows:
As we previously told you, we plan to implement the
foregoing proposal on Monday, April 7, 1986. We are
taking this action because after twenty-seven negotia-
tion sessions, the lack of agreement have caused us to
be at impasse. We cannot continue to operate as we
have since the contract expired in December. [Id. p. 2.]
By letter dated 3 April, Chiappardi requested that Dry fur-
nish the Union the Company’s ‘‘last offer’’ in writing (R.
Exh. 20). There Chiappardi also accused the Company of
bad-faith bargaining and reminding Dry that the Union had
filed unfair labor practices against Natico.12
On 7 April, the Company, inter alia, reduced wages by
$1.43 per hour and ceased making contributions to the union
pension plan as reflected in its final offer.13 The Company
did not eliminate any personal holidays.
Subsequent to the aforenoted disputed unilateral changes,
the parties met approximately 20 times, from 9 April through
25 November (Jt. Exh. 2), sometimes face to face, sometimes
through the mediator without ever reaching an agreement on
‘‘incentives’’ or on a new contract.14
At the 9 April meeting, the Union proposed that the Com-
pany restore the agreement on ‘‘incentives’’ which had been
reached on 27 February. Although the Company indicated a
willingness to accept a trial incentive plan lasting 6 months
(instead of 60 days), in all other respects, it did not move
off its ‘‘final offer’’ of 27 March. The Union indicated a
willingness to accept a 3-month incentive trial plan. There
was no agreement and the parties did not move any closer
(Jt. Exh. 2, par. 2). Over the next few meetings, held in May,
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 It is not alleged nor contended that these layoffs were predicated, in
whole or in part, on discriminatory or unlawful considerations. All the employ-
ees were brought back to work in December and January.
16 All dates hereinafter refer to 1987 unless otherwise indicated.
17 As noted previously, the Teamsters had long represented the drivers at
that facility.
18 It appears that the employees were outside the plant at around 9:25 a.m.
The normal break period is 9:30 a.m. to 9:45 a.m. The employees returned
at around 9:50 a.m. Thus it appears that the time employees spent outside
roughly corresponded to the break period.
the parties continued to express interest in having a wage in-
centive plan implemented, but they could not agree on the
length of the trial period. The Union wanted a 2-month pe-
riod and the Company wanted a longer period (Jt. Exh. 2,
par. 3).
At the 3 June meeting, the Union proposed a 1-year con-
tract which provided, inter alia, for ‘‘incentives’’ during the
term of that contract. Further, the Union asked for repayment
to its employees of moneys lost since the 7 April hourly
wage cut, the current union pension plan with increased em-
ployer contributions and a union health and welfare plan.
The Company did not make any counterproposal but re-
quested certain information which the Union agreed to pro-
vide (Jt. Exh. 2, par. 5).
The Company presented a counterproposal at the meeting
of 11 June (Jt. Exh. 2, par. 6, Exh. ‘‘A’’). Although Re-
spondent’s counterproposal appeared to embrace certain of
the Union’s demands of 3 June, i.e., a 1-year trial plan for
incentives at: the 3.9 DPMH break-even point, these terms
were to be part of a 2-1/2 year contract as opposed to the
Union’s 1-year proposal. Further, the Company, inter alia,
proposed to keep the existing health and welfare benefits and
to terminate the existing pension plan and to switch to a
money purchase plan. The Company also reintroduced its
two-tier wage system proposal for employees hired after the
effective date of the new contract (Jt. Exh. 2, Exh. ‘‘A’’, p.
2).
At the 19 or 20 June session, Chiappardi responded to the
Company’s 11 June written counterproposal by proposing,
inter alia, a 2-month contract with a 60-day incentive trial
period. Chiappardi also asked for restoration of the $1.43
wage cut plus back wages. Dry rejected the Union’s proposal
but stated that he was willing to restore the $1.43 wage cut
on the condition he present the Company’s contract proposal
to the unit employees. The Union told Dry to put his offer
in writing and that the Union would present it to the employ-
ees as written. Dry agreed to this procedure at the meeting
of 26 June (Jt. Exh. 2, pars. 7 and 8). On 7 July, the Com-
pany reinstituted the $1.43 wage cut. No action was taken
with regard to the Union’s proposal for lost wages. On 11
July, the Company submitted it’s contract proposal to the
employees. The offer also provided for back wages lost from
the $1.43 paycut since 7 April to be paid over the term of
the proposed 2-1/2 year contract. (Jt. Exh. 2, Exh. C, p. 2).
Over the next few meetings in July and August, the parties
revised their most recent proposals and counterproposals. The
Company was still proposing, inter alia, a two-tier wage sys-
tem for new employees which the Union continued to resist.
Further, the Company’s proposal included an offer to reim-
burse employees for wages lost due to the 7 April wage cut.
Ferguson objected to any linkage of such items as lost wages
to the Respondent’s contract offer as ‘‘muddying the waters’’
because the employees assertedly were entitled to have those
wages restored (Jt. Exh. 2, pars. 11 and 12). The Union filed
additional charges over the wage reduction and the Com-
pany’s refusal to make monthly contributions to the union
pension fund on 19 August in Case 4–CA–16037–1.
In October, Chiappardi and Dry debated (as prearranged),
the relative merits of the union pension fund versus the Com-
pany money purchase plan before unit employees. The par-
ties next met on 21 October. Dry proposed, inter alia, imple-
menting the incentive plan on a 6-month trial basis and he
also agreed to drop his proposal regarding the two-tier wage
system. The Union reiterated its long held position that Dry
should place on the table the agreement reached on ‘‘incen-
tives’’ back on 27 February.
At the 30 October session, Dry’s revised proposal encom-
passed elements of the 27 February agreement on ‘‘ incen-
tives’’ including the 2-month trial period. The proposal, how-
ever, also required concessions and/or changes in the union
position concerning health and welfare and the pension plan.
The Union, although still receptive to ‘‘incentives’’ proposed
an ‘‘upside’’ only. Dry stated that the terms of his proposal
would expire if not accepted by the Union that day. No
agreement was reached that day. That same day, the Com-
pany laid off 57 employees.15
At the meeting of 6 November, the Company moved clos-
er to accepting an upside-only incentive plan (Jt. Exh. 2, par.
20). The last bargaining session was held on 25 November.
On that occasion, the parties were largely in agreement on
an incentive plan with an ‘‘upside’’ only and a number of
other provisions. The parties also moved closer on health and
welfare and a pension plan. Still, material issues such as the
duration of the contract remained (Jt. Exh. 2, par. 22). In late
January 1987,16 a meeting was scheduled for 11 February.
This meeting never took place. Also in January, the Team-
sters began to organize the same production and maintenance
employees at the Pennsacken facility then represented by
Local 1.17
The Teamsters by letters to Dry dated 21 and 26 January,
demanded recognition for the production and maintenance
unit and offered to prove its majority status on the basis of
‘‘application cards’’ on 30 January at 10 a.m. (R. Exhs. 23
and 24.) Further, the Teamsters warned that if recognition
was not forthcoming at that time, ‘‘we will take the people
out into the street to prove to you that we do represent the
majority.’’ (R. Emp. Exh. 24.)
On 30 January, at or around 9 a.m., Teamsters Representa-
tives Howard Greeley and Tony Pulumbi met with Howard
I. Hatoff, the company attorney, and William Dougherty, the
plant manager, in Dougherty’s office. There, the ‘‘Team-
sters’’ offered to demonstrate their majority status by dis-
playing signed union authorization cards. According to
Dougherty, Attorney Hatoff told the Teamsters representa-
tives that he would not check the cards because Local 1 was
already the bargaining agent for those card signers. The
meeting lasted about 10 minutes.
Shortly after the Teamsters left Dougherty’s office, the lat-
ter learned from supervisors that employees had left the plant
in the presence of the Teamsters. According to Dougherty,
Hatoff telephonically informed Dry of these activities. After
the phone calls, Dougherty left the plant and asked Greeley
to get the employees back to work. Dougherty also invited
Greeley into his office to conduct a card check.18 There
Dougherty and Hatoff counted 54 authorization cards (R.
681NATICO, INC.
19 Dougherty testified that the name of Richard Herr, an inactive employee
on military leave was not included or counted in the total employee com-
plement (Tr. 782). Thus, the total employee complement was reduced to 103.
On the other hand, the counted cards included the undated card of employee
Joe Kennedy, the card of Craig Dobson who was no longer employed on 30
January and the card of employee James Whitaker, who was out of work on
disability since 30 April 1985.
20 The fourth and last of the consolidated complaints also alleged that in
March 1987 the Respondent Employer discriminatorily refused to permit its
employee, Robert Zozofsky, a Local 1 steward and member of its negotiating
committee to work as a day-shift extruder operator. Other allegations include
a reduction in the vacation pay of Robert Ferguson and a threat by Dry to
continue the wage cut of April 1986 until the unit employees withdrew their
support for Local 1. These, as well as all other allegations, will be treated
more fully separately infra.
21 Although Dry asserted that he was somewhat confused regarding the im-
port of the term ‘‘[r]atification versus a meeting,’’ he also acknowledged that
he assumed that Local 1 was going to conduct a ratification meeting and that
he would not have implemented the plan ‘‘if the employees didn’t agree to
it.’’
22 I also find that Benson did not possess such authority. The record clearly
established that Benson, as plant manager, was a statutory supervisor and for
some purposes an agent, i.e., he admittedly had the authority to permit the
Union the use of the cafeteria to conduct a union meeting (Tr. 745). However,
I find, that such authority, without more, does not clothe Benson with real or
apparent authority to change or modify the terms of the trial incentive agree-
ment including the date the incentive plan was to begin. The record disclosed
that Dry was virtually the only spokesman and negotiator for the Company
although he received same assistance from Benson. Dry attended every bar-
gaining session but the first when basically all that transpired was an exchange
of proposals. In short, I find that Benson is not an agent within the meaning
of Sec. 2(13) of the Act for the purpose contended by the General Counsel.
Emp. Exh. 26(a)–(bbb)) out of 104 employees on the payroll
list (R. Exh. 27).19 Thereupon, Dougherty and Greeley
signed an agreement whereby Natico recognized the Team-
sters as the ‘‘sole collective-bargaining agent for the produc-
tion and maintenance unit’’ (R. Emp. Exh. 25). By a fol-
lowup letter dated 30 January, Attorney Hatoff notified Local
1 that Natico was withdrawing recognition on the basis that
‘‘another labor organization’’ has demonstrated by ‘‘objec-
tive evidence’’ that they represent a ‘‘majority’’ of the em-
ployees in the production and maintenance unit (G.C. Exh.
21).
In February, over a 2-week period, the Respondent Em-
ployer had restored the money employees lost due to the
$1.43 paycut, from 7 April 1986 to 7 July 1986, the period
that the paycut was in effect. Dry had the ‘‘Teamsters Com-
mittee’’ inform the employees that they would be receiving
these funds (Tr. 1020–1021).
On 15 April, Natico retained the accounting firm of
Cunningham, Porter & Philips (CP&P) to conduct a secret-
ballot representation election for the unit employees (Jt. Exh.
1). The election was scheduled for 23 April, from 3 p.m. to
4:15 p.m. at the plant. On 16 April, Company Attorney
Hatoff advised Local 1 and the Teamsters, by certified mail,
of the election arrangements along with an Excelsior list.
This list contained the names and addresses of bargaining
unit employees as of April 1987. (Id.) By letter dated 17
April, the CP&P accounting firm also advised both unions,
inter alia, that it had been retained by Natico to conduct the
election. A preelection conference was scheduled for 2:30
p.m., one-half hour before the balloting was to commence.
Local 1 refused to participate in any of the arrangements or
in the election. Thus, on 22 April, Chiappardi advised the
unit employees in writing that Local 1 would ‘‘have no part
of this phoney deal’’ pointing out that the unfair labor prac-
tice trial was coming up on a complaint alleging, inter alia,
an unlawful bargaining relationship between Natico and the
Teamsters (R. Emp. Exh. 11).
The secret-ballot election was held on 23 April as sched-
uled. The Respondent Employer and Teamsters each had an
observer. Local 1 did not participate. After the polls closed,
an agent of the CP&P accounting firm counted the ballots in
front of the observers. The tally of ballots disclosed that of
97 eligible voters, 57 cast ballots for the Teamsters, 7 for
Local 1, and 3 were void. (Jt. Exh. 1.) On 27 April, Local
1 filed new charges contending, inter alia, that the employer
illegally assisted the Teamsters by canceling overtime work
the night before the election to permit employees to attend
a meeting held by the Teamsters. Local 1 also alleged that
‘‘[t]he Employer violated the Act by conducting its own rep-
resentation election.’’ (G.C. Exh. 1 (dd).) These charges gave
rise to still another consolidated complaint.20
B. Discussion and Conclusions
1. The 8(a)(5) allegations
a. Respondent Employer’s withdrawal from an
agreement to enter into a trial incentive plan
It is undisputed that at the bargaining session on 27 Feb-
ruary 1986, the parties reach agreement on the substantive
formula for an ‘‘incentive plan.’’ It is also undisputed, that
at the same session, the parties agreed to commence the in-
centive plan on a trial basis for 60 days starting Monday, 10
March. However, it is alleged, the record supports, and I
find, that this trial incentive plan was subject to employee
ratification, an event which never took place.21
The General Counsel contends that the failure of Local 1
to take the incentive plan to the unit employees for a ratifica-
tion vote is attributable solely to the actions of Respondent
Employer. I find, contrary to the General Counsel, for rea-
sons noted below, that the failure by the Union to conduct
a ratification meeting cannot be ascribed to Respondent Em-
ployer.
It is undisputed that on or about Monday, 3 March, the
Union got permission from Plant Manager Benson to hold an
employee ratification meeting in the plan lunchroom on
Thursday 6 March at 11:30 a.m. Either that day (3 March)
or the following day, Benson tried to get the Union to
change the time scheduled for the meeting because he
learned that a customer was expected at the plant at the same
time. As Benson deemed such circumstances awkward he
suggested to Ferguson that the Union hold the meeting ear-
lier in the week or if it had to be on Thursday, then in the
afternoon. Ferguson opted to reschedule the meeting for 1
week to 13 March at the same time and place. According to
Ferguson, although Benson pressed for the holding of the
meeting during the week of 3 March, he eventually agreed
(albeit reluctantly) to reschedule the meeting to 13 March.
Benson for his part does not recall or deny that he eventually
agreed to provide the lunchroom for a meeting on 13 March.
Of greater significance is that Benson denied, and I credit,
that he did not agree to postpone the implementation of the
plan.22
The trial incentive plan was not implemented on 10 March
because a condition precedent, to wit, ratification had not
taken place. When so informed, Dry immediately made plane
reservations for Pennsauken and had the Union bargaining
committee summoned to meet him at the facility. There on
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Dry, relying on reports from supervisors, accused Zozofsky at this meeting
of telling maintenance employees not to work that previous Saturday. As noted
earlier, Dry had promised the Union to make the necessary repairs on the
winder so that it would be in working order at the time the trial incentive plan
was to begin on 10 March. Zozofsky denied the accusation. The record dis-
closed that the Company had to rely largely on supervisors on the Saturday
in question to repair the winder.
24 The General Counsel expressly disclaimed any notion that ‘‘surface bar-
gaining’’ is alleged or contended.
11 or 12 March, Dry informed the Union that he was with-
drawing from his agreement on The incentive plan and tak-
ing ‘‘incentives’’ off the table as a subject for negotiations.
Dry pointed out a number of factors including his assessment
that the Union and the employees were not interested in in-
centives.23 Dry also told the union officials that he consid-
ered them unreasonable to allow only one-half hour from 27
February to 10 March to hold a union ratification meeting.
As stated by Dry after devoting so much time and effort over
many bargaining sessions, ‘‘I was disgusted. I was out-
raged.’’ At the next bargaining session Dry asserted that the
parties were at impasse and refused again further over incen-
tives.
In pertinent part, it is alleged as follows:
‘‘Since on or about March 11, 1986 Respondent Em-
ployer bargained in bad faith and without intention of
reaching a final and binding agreement . . .’’24 by re-
pudiating its agreement to implement a wage incentive
plan for a period of sixty days, subject to ratification
by the unit. [Emphasis added.]
In essence, the General Counsel contends that the Re-
spondent Employer bargained in ‘‘bad faith’’ as evidenced
by its failure to demonstrate ‘‘good cause’’ in withdrawing
from the tentative agreement on ‘‘incentives’’ citing, Arrow
Sash & Door Co., 281 NLRB 1108 fn. 2 (1986), and Farm
Boy Restaurants, 279 NLRB 82 (1986). Although Arrow
Sash and Farm Boy Restaurants produced different results,
the Board in both cases continued to apply the ‘‘under the
totality of the circumstances test’’ in assessing the Respond-
ent’s disputed action.
Arrow Sash, largely relied on by the General Counsel is
factually distinguishable from the case here. There, unlike
the instant case, the Respondent’s decision to withdraw from
its concessions and tentative agreements was precipitated by
a ‘‘sickout’’ in violation of the no-strike provision of the col-
lective-bargaining agreement, as extended. The Respondent
mistakenly believed that the ‘‘sickout’’ was sanctioned or
condoned by the unions and, in retaliation, inter alia, the Re-
spondent unilaterally terminated the extension agreement.
The Board, in finding that the Respondent’s actions were not
justified stated that the issue did not turn on Respondent’s
‘‘good faith’’ but whether it had ‘‘good cause’’ to withdraw
from the tentative agreements and concessions made.
In the instant case, unlike Arrow Sash, I find that the
Union is not without responsibility. Thus, I find, in agree-
ment with Respondent, that the Union failed to act reason-
ably by allocating only 1 day, and a half hour at that, for
the holding of the ratification meeting prior to 10 March, the
agreed-upon date for ‘‘incentives’’ to be implemented. In ar-
riving at this conclusion and in assessing the ‘‘total cir-
cumstances,’’ it is noted that it is not disputed and the record
tends to show that the Respondent bargained in good faith
over ‘‘incentives’’ for over 2-1/2 months covering many bar-
gaining sessions. During this period, Dry expanded substan-
tial time and effort in compiling data, providing information
as requested by the Union and preparing and presenting nu-
merous charts to the Union thereby facilitating negotiations.
Dry’s conduct is consistent with his testimony, that he was
anxious to get the ‘‘incentive’’ program started, even as early
as January. At that time the parties had agreed in principle
to aim for 27 January for the 60-day trial period. However,
when the Union presented the proposal to the unit employees
they reacted negatively to the ‘‘incentive’’ concept. Still, Dry
continued to bargain over incentives and even offered in-
ducements to help the Union sell the program to its member-
ship as suggested by the Union bargaining committee. In this
regard, as noted previously, Dry agreed, inter alia, to suspend
the $10 weekly contributions to the Company’s insurance
plan during the trial period and on 27 February the parties
reached an agreement subject to ratification to commence the
incentive plan on 10 March.
The Union however failed to conduct a ratification meet-
ing prior to 10 March and was therefore not ready to have
the plan implemented on that date. Dry had been previously
disappointed because the earlier target date for incentives
back in January could not be satisfied. As noted above, at
that time the Union conveyed to Dry that the bargaining unit
employees saw many problems with incentives and had not
embraced the concept. In these I circumstances, I cannot con-
clude that Dry was not justified in telling the Union that the
employees were not interested in the incentive system and he
was taking it off the table as a subject for negotiations. Thus,
I find, on the total state of the record that the General Coun-
sel has failed to establish that the Respondent Employer did
not have ‘‘good cause’’ or acted in ‘‘bad faith’’ as alleged.
Accordingly, I shall recommend that this allegation be dis-
missed.
b. Respondent Employee’s unilateral implementation of
a $1.43-per-hour wage cut
It is alleged that on 7 April 1986, the Respondent Em-
ployer unilaterally and unlawfully ‘‘implemented a reduction
in the hourly wage rate of the unit.’’ The General Counsel
contends that the wage reduction was implemented before
the parties had arrived at any lawful impasse. It is undisputed
that on April that the Respondent Employer reduced the
hourly wage rate by $1.43 for unit employees. However, the
Respondent Employer contends that the parties had reached
an impasse and that it was therefore entitled to make such
unilateral changes where, as here (assertedly), the reduction
was encompassed by the employer’s preimpasse proposal.
In view of the contrasting contentions and on the basis of
well-settled principles, the instant allegation turns largely on
whether a lawful impasse existed at the time the disputed ac-
tion was taken. Thus, unilateral changes undertaken by an
employer with regard to terms and conditions of employment
during negotiations and before a lawful impasse, contravenes
the duty to bargain under the Act. See generally NLRB v.
Katz, 369 U.S. 736 (1962); Huck Mfg. Co. v. NLRB, 693
F.2d 1176, 1186 (5th Cir. 1982); Supak & Sons Mfg. Corp.,
192 NLRB 1228 (1971), enfd. 470 F.2d 198 (4th Cir. 1978).
Or stated conversely. ‘‘For if impasse had been reached, Re-
spondent was free to implement its preimpasse proposal.’’
See E. I. du Pont & Co., 268 NLRB 1075 (1974), citing Taft
683NATICO, INC.
25 The $1.43 pay reduction corresponded to the minimum productivity stand-
ard under the trial incentive agreement. As noted above, the break-even point
was 3.9 DPMH and anything over resulted in a bonus. If employees produced
only 3.2 DPMH, under the downside of the agreement the old base rate of
$7.31 would be reduced to $5.88 or $1.43 less (See G.C. Exhs. 15 and 16).
26 The Union initially demanded wage increases of 15 percent or approxi-
mately $1.20 per hour for each year of the 3-year contract proposal. After Dry
made his final offer to reduce wages, the Union lowered its demands to $1,
75 cents, and 75 cents and then again on 31 March to 85 cents, 75 cents, and
75 cents.
Broadcasting Co., 163 NLRB 475, 478 (1967), petition for
review denied 395 F.2d 622 (D.C. Cir 1968).
In determining whether the parties had arrived at a lawful
impasse in bargaining prior to the disputed unilateral action,
the Board has long followed the guidelines set forth in Taft
Broadcasting Co.., supra at 478. There, the Board stated as
follows:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there
is disagreement, the contemporaneous understanding of
the parties as to the state of the negotiations are all rel-
evant factors to be considered whether an impasse in
bargaining existed.
In the instant case, the record disclosed factors tending to
both support and militate against a finding of ‘‘impasse.’’
However, I am persuaded by the clear weight of the evidence
that when the Company implemented the wage reduction, the
parties had only barely touched on wages (independent of
‘‘incentives’’) and that continued bargaining, if in good faith,
was still viable. In short, I find, for reasons discussed below,
that the parties had not reached a lawful impasse at the time
of Respondent Employer’s action.
First, with regard to Taft Broadcasting factors tending to
favor ‘‘impasse’’ it is noted that it is not alleged nor con-
tended, that the Respondent Employer failed to bargain in
good faith prior to its announcement on 11 or 12 March that
incentives were off the table. For reasons noted above, I have
already found that the Respondent Employer was justified in
taking such action. Further, there can be no question that the
wage in centive plan was given major prominence during ne-
gotiations from December 1985 until mid-March 1986. As
stated by the Respondent Employer in its post-trial brief,
‘‘The wage incentive plan was virtually the only issue dis-
cussed at the table’’ from December 1985 to the time Dry
dropped ‘‘incentive’’ as a subject for negotiations in March
1986. As for the Union, Ferguson opined, ‘‘We knew if the
incentive system worked out, we would have no problem
getting the contract.’’
This finding, however, that the focus of the parties was
clearly on ‘‘incentives’’ is not, at the same time, dispositive
of the wage reduction issue. Or, as stated by the General
Counsel, negotiations over the incentive plan in the cir-
cumstances of this case, were not ‘‘the functional equivalent
[emphasis added] of negotiations over a wage cut.’’
The record disclosed that the parties commenced negotia-
tions for a new contract on 5 November. The Union’s con-
tract proposal included a 15-percent wage increase demand
(G.C. Exh. 5). The Respondent Employer did not submit its
own economic proposal until the fifth bargaining session, on
9 December. The package included a 25-percent reduction in
wages . Virtually nothing then or over the next few months
was discussed regarding wages in the conventional sense.
Rather, the parties elected to concentrate on a trial incentive
plan which was conceived to accomplish two goals: (1) to
increase production to satisfy the Respondent Employer’s de-
sire to remain competive and (2) to provide n incentives’’ for
employees to produce more and thereby earn more money.
The idea was Union President Chiappardi’s and quickly em-
braced by Dry. Under the plan, the employees had to
produce 3.9 drums per man hour to break even and earn a
bonus at various intervals for greater production.
Dry refused to discuss other mandatory subjects until he
could discern whether ‘‘incentives’’ were effective. The plan
failed to be ratified as required by 10 March, the agreed-on
date for the incentive plan to be implemented. Within the
next 2 days, Dry with justification (for reasons discussed pre-
viously) withdrew from his agreement on ‘‘incentives’’ and
informed the Union that he would no longer negotiate on that
subject.
At the next session on 27 March, Dry submitted what he
termed was his ‘‘final offer’’ to take effect on 7 April. This
final proposal included an across-the-board wage cut of
$1.43 per hours.25 Dry stated that he was making a final
offer because the parties were at impasse. The Union dis-
puted Dry’s assessment and conveyed a willingness to still
negotiate the terms and conditions of a collective-bargaining
agreement. Toward that end the Union submitted a counter-
proposal which lowered both economic and noneconomic de-
mands.
The parties met again on 28 March. Dry responded to cer-
tain of the Union’s modified demands and, inter alia, agreed
to the Union’s vacation pay proposal. However, Dry did not
respond to the Union’s latest wage demand. On 31 March,
the Union lowered its latest night-shift differential proposal
and further lowered is wage demands.26 The Company did
not respond to these proposals or make any other proposal
or counterproposal. Instead, Dry reiterated his intention to
implement his final offer on 7 April which he later carried
out on that date as threatened.
Dry, by taking ‘‘incentives’’ off the table, merely removed
that item as a subject for bargaining. Although the Union
was then unable to rekindle Dry’s interest and hold him to
his earlier commitments to the incentive plan, Dry’s resist-
ance thereto did not prevent the Union from twice modifying
its own wage demands over 3 days of bargaining preceding
the Company’s unilateral changes. In other words, the Union
did not insist that Dry bargain over incentives to the point
where negotiations over wages was no longer a viable alter-
native. For a deadlock or impasse to have occurred ‘‘neither
party must be willing to compromise.’’ Huck Mfg. Co. v.
NLRB, 693 F.2d 1176, 1186 (5th Cir. 1982). See also Cal-
Pacific Furniture Mfg. Co., 228 NLRB 1337, 1341–1343
(1977).
Here, the record disclosed that the ‘‘final offer’’ reducing
wages by $1.43 per hour had not been proposed independ-
ently but rather only as an integral component of the overall
incentive plan (see fn. 25, supra). Thus, having taken ‘‘incen-
tives’’ off the table, the Company was now, in effect, mak-
ing a new proposal on wages, and as such, opened the door
for a new round of negotiations. Clearly, Dry’s testimony
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 After the changes were made, the parties were no longer dealing at arms’
length and the bargaining process was largely tainted, particularly here, where
there were outstanding unfair labor practice charges which gave rise to the in-
stant allegation. See SGS Control Services, supra at 988.
28 It is undisputed that as a result of the pay cut, the Respondent Employer
made a corresponding reduction of $1.43 per hour in the vacation pay benefits
of employee Ronald Ferguson. The Respondent Employer contends that as the
paycut itself was lawful, the attendant reduction in vacation pay was permis-
sible. However, as the predicate has been rejected for reasons discussed above,
a fortiori, I find that the reduction in Ferguson’s vacation benefits was also
unlawful, as alleged. See Navajo Freight Lines, 254 NLRB 1272 (1981).
tends to confirm that he recognized his offer as such. Thus
Dry testified:
The real reason I made that offer was to get some reac-
tion, to get some kind of feedback, to shake [the Union]
up, to say hey, you know, [the Union] better do some-
thing, [Dry] is talking about taking a dollar forty-three
away, I mean we (the Union) better do something.
As noted above, the Union did in fact respond quickly by
reducing its own wage demands not once but twice over a
few days. Significantly, there is no reason to presume that
the Union was not willing to lower its sights on wages even
further. In other words, in the circumstances of this case, the
Respondent Employer was not justified, in the absence of
continued ‘‘good faith’’ bargaining, to assume that to do so
would have been futile. The Board has consistently consid-
ered the element of futility in conjunction with Taft Broad-
casting factors in assessing whether an impasse existed at the
time of the disputed unilateral changes. See SGS Control
Services, 275 NLRB 984, 987 (1985), and cases cited there.
In the total circumstances of this case, noting particularly
that the parties had barely touched the surface with regard
to bargaining over wages and that the Union was far from
intractable on this subject, I find that no lawful impasse ex-
isted at the time the Respondent Employer unilaterally re-
duced wages.27
The Respondent Employer raised two additional defenses
neither of which I find tenable. First, the Respondent Em-
ployer contends that even if the wage cut was unlawful, it
cured such action by rescinding the wage reduction 3 months
later and, subsequently, also repaying employees all lost
wages. As to this defense, it is noted, inter alia, that the Re-
spondent Employer failed to provide any meaningful assur-
ances to employees that it would refrain from taking the
same or similar violative conduct in the future. Although
under certain circumstances, an employer may relieve itself
of Board-imposed remedies by repudiating the violative con-
duct, such repudiation must be timely, unambiguous, and
specific and employees must be provided assurances against
such misconduct recurring in the future. Passavant Memorial
Area Hospital, 237 NLRB 138 (1978); Headquarters Plaza
Hotel, 276 NLRB 925, 928 (1985). Cf. Kroger Co., 275
NLRB 1478 (1985) (where the respondent, inter alia, ‘‘ad-
vised each employee that he would be employed whether or
not he chose to join a union’’).
Here, aside from failing to provide the necessary assur-
ances against future misconduct, it is noted that the Respond-
ent Employer also engaged in similar contemporaneous mis-
conduct (as discussed infra) for which it denies liability and
for which it has taken no steps to cure. In these cir-
cumstances and on the state of the entire record, I reject the
Respondent Employer’s contention that its conduct has
‘‘mooted the necessity of a Board-imposed remedy.’’
The Respondent Employer also contends that it was justi-
fied in reducing wages as it ‘‘could have undertaken harsher
remedies, such as locking out employees.’’ I find any reli-
ance on lockout cases clearly misplaced. Here, unlike cases
involving legitimate lockouts, the violative unilateral action
contravenes the duty to bargain. As such, I reject and find
no justifiable basis to depart from well-established precedent
regarding unilateral changes during negotiations before im-
passe is reached. Compare NLRB v. Katz, 369 U.S. 736
(1962), with Harter Equipment, 280 NLRB 597 (1986).
In sum, I find that on or about 7 April 1986, the Respond-
ent Employer unilaterally and unlawfully reduced the wages
of employees by $1.43 per hour in violation of Section
8(a)(5) as alleged.28
c. Respondent Employer’s repudiation of obligations to
make contributions to the Union’s pension plan
and legal fund
(1) Pension plan
Under the expired collective-bargaining agreement be-
tween Natico and Local 1, effective from 16 December 1982
until 16 December 1985, the Respondent Employer was re-
quired to make contributions to the Union’s pension plan as
follows:
[Section] 5.16 It is agreed that the pension program ef-
fective April 1, 1976 will remain in effect for the term
of this agreement with the following changes.
Effective 12/16/83 Add 5/Hr. = 20 cent Total
Effective 12/16/84 Add 5/Hr. = 25 cent Total
In May 1984, the Respondent Employer ceased making
contributions to the Union’s pension plan. The Respondent’s
failure to make such contributions became the subject of
Federal court litigation resulting, in late 1985, in a favorable
disposition for Local 1. On 19 August 1986, Local 1 filed
charges alleging, inter alia, that ‘‘[b]eginning in January
1986, the Employer refused and continues to refuse to pay
its monthly contribution to the Union pension fund.’’ The
date of the alleged misconduct was modified in the fourth
consolidated complaint in paragraph 10(a) as follows:
Since on or about February 20, 1986 [emphasis added],
Respondent-Employer has failed and refused and is fail-
ing and refusing to make pension plan contributions for
its employees in the Union.
The Respondent Employer argues variously that under the
express contractual language of the expired collective-bar-
gaining agreement, it has no obligation to make pension con-
tributions beyond the term of that expired agreement; that
any failure by the Respondent Employer to make the dis-
puted contributions is time barred by Section 10(b) of the
Act; and that Local 1 is precluded from relief under the doc-
trine of laches. For reasons noted below, I reject each of
these defenses.
As noted previously, in finding that the Respondent Em-
ployer violated Section 8(a)(5) by unilaterally reducing
685NATICO, INC.
29 The record disclosed that although the Respondent Employer submitted an
economic package on 9 December 1985 which contained a proposal to ‘‘re-
place the current pension with Company/Union money purchase plan,’’ vir-
tually all bargaining over the next 2-1/2 months was over ‘‘incentives.’’ In
fact, the Union did not receive a copy of the Company money purchase plan
until 31 March 1986. Thus, the parties did not have meaningful negotiations
over pensions until after the Respondent Employer implemented its final offer
on 7 April 1986.
30 Here, the underlying pension document is not in evidence. However, the
Respondent Employer is not relying thereon in support of its waiver contention
but solely on the contractual language itself. Cf. Schmidt-Tiago Construction
Co., 286 NLRB 342 (1987). In any event, it is not essential that the record
contain the underlying trust or pension agreement. See M. J. Santulli Mail
Services, supra at 15.
wages, the law is well settled, that unilateral changes under-
taken by an employer during negotiations with regard to
terms and conditions of employment, absent a lawful impasse
or waiver, violate the Act. See NLRB v. Katz, 369 U.S. 736
(1962), and other cases cited in section B,1(b), supra. It is
also well settled that contractual contributions to a union
pension fund is encompassed within the meaning of terms
and conditions of employment and, absent waiver, survives
the collective-bargaining agreement. Hen House Market No.
3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir.
1970); KBMS, Inc., 278 NLRB 826 (1986); M. J. Santulli
Mail Services, 281 NLRB 1288 (1986).
Here, the Respondent Employer does not contend that the
parties bargained to impasse over pension fund contribu-
tions.29 However, the Respondent Employer does contend
that the 1982–1985 collective-bargaining agreement clearly
limits its pension fund contributions only for the term of that
agreement. Thus, the Respondent Employer contends on the
basis of contractual waiver, that it was at liberty to unilater-
ally delete or replace the pension fund provision when the
agreement expired.
Contrary to Respondent Employer, I do not read section
5.16, the pension provision in question (set forth in its en-
tirety above), as tantamount to a finding of contractual waiv-
er. A waiver of an employer’s statutory obligation to main-
tain benefit levels beyond the termination date of the contract
is not inferred unless supported by clear and unmistakable
evidence. Wayne’s Dairy, 223 NLRB 260 (1976); Timkin
Roller Bearing Co. v. NLRB, 325 F.2d 745, 751 (6th Cir.
1963); see also Rockwell International Corp., 260 NLRB
1346, 1347 (1982) (‘‘[A] waiver will not be lightly inferred
in the absence of clear and unequivocal language.’’).
As I read section 5.16, the parties merely memorialized
their intention not to disturb the pension program effective
1976 for the term of the 1982–1985 collective-bargaining
agreement with the exception of providing an additional 5-
cent-per-hour increase effective 16 December 1983 and an
additional 5-cent-per-hour increase effective 16 December
1984. The contractual language does not state that the pen-
sion program will terminate on the expiration of the contract.
It appears that language to that effect is required either in the
collective-bargaining agreement or in the underlying pension
agreement to satisfy a waiver condition.30 See, e.g.,
Cauthorne Trucking, 256 NLRB 721 (1981). There, the pen-
sion trust agreement contained the following language:
IT IS UNDERSTOOD AND AGREED THAT at the expiration
of any particular collective-bargaining agreement by
and between the Union and any Company’s obligation
under this Pension Trust Agreement shall terminate un-
less, in a new collective-bargaining agreement, such ob-
ligation shall be continued. [Emphasis added; id. at
722.]
In Cauthorne, the Board found that the aforenoted lan-
guage constituted an express waiver regarding the Com-
pany’s obligations to make pension fund contributions at the
expiration of the contract absent a renewal agreement to con-
tinue such payments. (Id.) In contrast, in the instant case, the
contractual provision at best is facially ambiguous. As I find
that the contractual provision here does not contain clear and
unequivocal language constituting a waiver, I further find
that Respondent Employer’s obligations to continue pension
fund contributions survive the expiration of the collective-
bargaining agreement. KBMS, Inc., supra; Wayne’s Dairy,
supra; Hen House Market No. 3, supra. See also Peerless
Roofing Co. v. NLRB, 641 F.2d 734, 735–736 (9th Cir.
1981).
As noted previously, the Respondent Employer also raised
a 10(b) defense. The complaint alleges that the Respondent
Employer failed and refused to make pension contributions
since on or about 20 February 1986. The underlying charges
were filed on 19 August 1986. According to the Respondent
Employer, the operative date is long before 20 February
1986, pointing out that it had not made pension fund con-
tributions since May 1984. Thus, the Respondent Employer
contends that the charges are time barred by the 6-month
limitation contained in Section 10(b) of the Act.
It is noted and indeed, the Respondent Employer acknowl-
edged in its brief, that ‘‘each failure to make contractually
required monthly benefit payments is a separate and distinct
violation of an employer’s bargaining obligation.’’ See
Farmingdale Iron Works, 249 NLRB 98, 99 (1982), enfd.
661 F.2d 910 (2d Cir. 1981).
Having found for reasons stated above, that the Respond-
ent Employer was statutorily obligated to continue making
pension contributions beyond the expiration date of the con-
tract, I fail to discern why, as contended by the Respondent
Employer, that the failure to make statutory monthly benefit
payments shall not similarly be treated as a separate and dis-
tinct violation as in Farmingdale Iron Works.
Moreover, although it is noted that Natico had not made
pension contributions since May 1984, I do not find, without
more, that such failure constituted a repudiation of Respond-
ent Employer’s statutory obligations. See Olive Mechanical
Contractors, 281 NLRB 395 (1986). Thus, the record dis-
closed that the Respondent Employer first submitted its eco-
nomic package on 9 December 1985 which proposed, inter
alia, replacing the pension plan with a money purchase plan.
However, over the next 2-1/2 to 3 months, the parties con-
centrated on ‘‘incentives’’ with little or no time devoted to
pensions or any other contractual provision. In fact, as noted
previously, Dry refused to negotiate on other items until after
the 60 days’ trial incentive period which was to commence
on 10 March 1986. It was not until late March or early April
1986, well within the 10(b) period that Dry actually repudi-
ated his obligations vis-a-vis pension fund contributions.
Thus, Dry’s letter dated 2 April 1986 advised the Union
‘‘[s]o there will be no mistake’’ that as of 7 April 1986 the
Company would n[c]ease contributions to the Union Pension
Plan.’’ (G.C. Exh. 19.)
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 Counsel for the General Counsel acknowledged in his brief that Sec.
10(b) precludes any finding or relief for monthly contributions which were due
prior to 20 February 1986.
32 Sec. 10(b) of the Act in pertinent part contains the following proviso:
‘‘That no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board.’’
As the underlying charges were filed on 19 August 1986,
I find that the date of the alleged misconduct ‘‘Since on or
about February 20, 1986’’ within the 10(b) 6-month limita-
tion and timely.31 Accordingly, I reject the Respondent Em-
ployer’s 10(b) defense.
The Respondent Employer’s remaining defense is based on
the doctrine of laches. According to the Respondent Em-
ployer, the Union failed to exercise due diligence in waiting
a full 8 months after the 1982–1985 collective-bargaining
agreement expired to file charges over its failure and refusal
to make pension fund contributions. On the state of this
record, I find no basis either in law or on equity consider-
ations to bar relief from the Union.
The record disclosed that in late December 1985, the
Union was successful in its Federal court litigation over the
Respondent Employer’s failure to make pension contributions
during the term of the agreement. As noted previously, ‘‘pen-
sions’’ and other subjects were put on hold during negotia-
tions for a new agreement because the parties concentrated
on an ‘‘incentive plan.’’ From time to time Ferguson ques-
tioned Dry about the ‘‘past [pension] money that was
owed.’’ (Tr. 620.) Dry reminded Ferguson of the Union’s
lawsuit and pointed out that the matter was in the hands of
the attorneys. (Id.) As noted previously, not until late March
1986 when Dry made the Company’s final offer to be imple-
mented on 7 April 1986 did it become clear that the Re-
spondent Employer was repudiating its obligations vis-a-vis
pension fund contributions. Up until that time, the Respond-
ent Employer merely had a proposal to replace the pension
plan with a money purchase plan. In these circumstances, I
am unpersuaded and reject the notion that the Union con-
veyed to the Respondent Employer that it had abandoned any
claims on postagreement pension contributions as contended
by Respondent Employer in its brief. Nor do I find that the
Union acted unreasonably in waiting to 19 August 1986, a
date within the 10(b) period, to file the related charges.
In short, I reject the Respondent Employer’s ‘‘laches’’
contention as without merit. As such, and as I have also re-
jected the various other defenses set forth by the Respondent
Employer, I find that the Respondent Employer violated Sec-
tion 8(a)(5) by failing and refusing to make pension fund
contributions as alleged.
(2) Legal fund
Under the terms of the most recently expired collective-
bargaining agreement, the Respondent Employer was obli-
gated to make certain contributions to the ‘‘Union Legal
Fund.’’ (G.C. Exh. 3, sec. 5.13A.) The Respondent Employer
continued to make such contributions even after the
aforenoted agreement expired until 30 January 1987 when it
withdrew recognition from the Charging Union and recog-
nized the Teamsters. Although no specific unfair labor prac-
tice charges were filed against the Respondent Employer for
its failure and refusal to make contributions to the Union’s
legal fund, the General Counsel at the opening of the instant
hearing on 8 June 1987 amended the fourth consolidated
complaint to allege this conduct as a separate violation of
Section 8(a)(5). In doing so, the General Counsel relied on
the original charges in Case 4–CA–10307–1 which were
filed on 19 August 1986 and which alleged, inter alia, the
Company’s unlawful refusal to make monthly pension con-
tributions. Correspondingly, the Respondent Employer, at the
hearing, amended its answer denying the new allegations as
time barred by the 6-month limitation contained in Section
10(b) of the Act. I find this defense meritorious for reasons
noted below.
The charges which were filed on 19 August 1986 relied
on by the General Counsel allege that the Respondent Em-
ployer violated Section 8(a)(5) as follows:
(a) On or about April 7, 1986 the Employer unilaterally
reduced wages by $1.43 per hour.
(b) Beginning in January 1986, the Employer refused to
pay its monthly contribution to the Union pension fund.
The aforenoted charges also contain the unusual catchall
language: ‘‘By the above and other acts, the above named
employer has interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act.’’ (G.C. Exh. 1m.) Clearly, these charges did not
then (19 August 1986) encompass nor even contemplate any
nonpayment to the legal fund because the Respondent Em-
ployer was in full compliance therewith. The Respondent
Employer did not repudiate any obligation to the legal fund
until 30 January 1987, approximately 5-1/2 months after the
charges were filed. It is also noted that, subsequently, the
Union filed additional charges which gave rise to a third con-
solidated complaint on 9 April 1987 without any reference
to the Company’s failure and refusal to make the contribu-
tions in question. (G.C. Exh. 1(r) and (x).)
In the circumstances of this case, I find that the instant al-
legation is not grounded on or encompassed by any timely
charge as required in the proviso contained in Section
10(b).32
Accordingly, I shall recommend that this allegation be dis-
missed.
d. Respondent Employer’s withdrawal of recognition
from Local 1 in violation of Section 8(a)(5) and related
8(a)(2) and 8(b)(1)(A) allegations involving assistance
and recognition of the Teamsters
(1) Withdrawal of recognition in violation of
Section 8(a)(5)
It is undisputed that on 30 January 1987, the Respondent
Employer withdrew recognition from Local 1 while at the
same time, it extended recognition to the Teamsters. The Re-
spondent Employer contends that it was entitled to take such
action because the Teamsters had demonstrated by objective
evidence that they represented a majority of the unit employ-
ees. The evidence relied on by the Respondent Employer
consisted principally of Teamsters authorization cards signed
by a majority or 53 of the 103 unit employees which cards
the Teamsters presented on 30 January. Further, that same
day, there was a brief walkout by approximately 63 employ-
ees assertedly in support of the Teamsters demand for rec-
ognition. On the other hand, the General Counsel contends
687NATICO, INC.
33 See also United Supermakets, 287 NLRB 394 fn. 4 (1987).
34 Given the aforenoted conclusions, I find it unnecessary to dispose of other
related issues raised by the parties reflecting on the Union’s loss of majority
on or about 30 January 1987. See Douglas & Lomason Co., supra.
that given the seriousness of the unremedied unfair labor
practices, all such evidence in support of the Teamsters must
be rejected as tainted.
In Robertshaw Control Co., 263 NLRB 958, 959 (1982),
cited by the General Counsel, the Board, ln upholding an
8(a)(5) withdrawal of recognition allegation observed as fol-
lows:
We have consistently held that [an incumbent] union
enjoys a presumption of continuing majority status. In
order to rebut that presumption, an employer must ei-
ther show that the union in fact no longer retains major-
ity support, or that its refusal to bargain was based on
a reasonably grounded doubt as to the union’s majority
status. As to a reasonably grounded doubt, the doubt
must be based on objective consideration and must be
raised in a context free of unfair labor practices. Sierra
Development Company d/b/a Club Cal-Neva, 231
NLRB 22, 23, enfd. 604 F.2d 606. [Emphasis added.]33
Here, I find the conclusion inescapable that any doubt re-
garding Local 1’s continued majority support is inextricably
intertwined with the serious and largely unremedied mis-
conduct engaged in by the Respondent Employer. In arriving
at this conclusion, I rely particularly on the Respondent Em-
ployer’s repudiation of its obligations to make pension con-
tributions as well as reducing its employees’ wages by $1.43
per hour in violation of Section 8(a)(5), which action im-
pacted directly on every member of the bargaining unit. Cor-
respondingly, I reject, as incredulous, the Respondent Em-
ployer’s assertion, as stated in its brief, that such ‘‘alleged
unfair labor practices, even if substantiated [emphasis added],
were not of the type which were egregious enough to have
a detrimental effect on the Union’s majority status.’’ Indeed,
Dry’s own testimony underscores the magnitude of the im-
pact of the wage loss on employees. Thus, Dry, in explaining
why he restored the paycut, testified as follows:
I reinstated the [paycut] because the productivity was
terrible; the people were very angry at me personally
and at the Company; there had been numerous inci-
dents of arguments; a lot of people that I had known
all my life were all upset; we were losing customers;
we were having bad quality.
And, I spent almost every day, almost every day,
from the time we made the wage cut until the time we
reinstated it on the floor, the actual production floor,
most of every day. And, a lot of people had talked to
me and I just felt like it was something that we tried
to do and didn’t work. And, I decided the best thing
to do was to give the money back. It was a bad situa-
tion and we were trying to make it better.
Although Dry did not acknowledge that the employees had
also held the Union responsible, it is not unreasonable to pre-
sume certain employee union defection flowing from Local
1’s inability to prevent the wage cut. As Dry’s testimony dis-
closed, he felt compelled to restore the paycuts because the
employees ‘‘were very angry’’ and ‘‘production’’ greatly
suffered. Nowhere did Dry attribute his change of heart with
regard to restoring the paycuts to efforts undertaken by Local
1.
Contrary to Respondent Employer, I also reject the notion
that Natico ‘‘cured any detrimental effect of that [pay] cut’’
by rescinding such action 3 months later. Thus, Dry merely
rescinded the paycut; he did not compensate employees for
wages lost while the paycut was in effect until after he had
withdrawn recognition from Local 1 and had recognized the
Teamsters. Moreover, the Respondent Employer never ac-
knowledged any wrongdoing; nor did it provide assurances
against the same or similar misconduct in the future. In short,
the Respondent Employer did virtually nothing to dispel the
lingering effects of its coercive conduct on unit employees.
Cf. Master Slack Corp., 271 NLRB 78 (1984) (the respond-
ent’s prior unfair labor practices had been substantial]y rem-
edied).
Having found that the Respondent Employer’s reliance on
Local 1’s loss of majority was not ‘‘free’’ of a context of
unfair labor practices as well as the likelihood that such un-
lawful action had an appreciable impact on employee defec-
tion, I further find that the Respondent Employer lost its
standing to I otherwise challenge the incumbent union’s ma-
jority status. See, e.g., Abbey-Medical/Abbey Rents, Inc., 264
NLRB 969 (1982), enfd. 709 F.2d 1514 (9th Cir. 1983);
KBMS, Inc., 278 NLRB 826 (986); Douglas & Lomason Co.,
253 NLRB 277, 280 (1980); Guerdon Industries, 218 NLRB
658 (1975). Accordingly, I find that the Respondent Em-
ployer, by withdrawing recognition from Local 1 on or about
30 January 1987, violated Section 8(a)(5) of the Act, as al-
leged.34
(2) Recognition of the Teamsters in violation of Section
8(a)(2) and related allegations
Having found that the Respondent Employer’s unremedied
unlawful actions precluded a challenge to the incumbent
Union’s presumption of continued majority support, I further
find that although it was so obligated to recognize and bar-
gain with that Union, it was not free to recognize the Team-
sters or any other labor organization. See Ana Colon, Inc.,
266 NLRB 611 (1983); American Pacific Concrete Pipe Co.,
262 NLRB 1223 (1982). Cf. Alexander Muss & Sons, 274
NLRB 1330 (where recognition of the outside union was ln
a context free of unfair labor practices). Accordingly, I find
that the Respondent Employer’s recognition of the Teamsters
on 30 January 1987 violated Section 8(a)(2) of the Act as
alleged. Further, and coextensive with the 8(a)(2) violation,
I find the Teamsters’ acceptance of such unlawful recogni-
tion is violative of Section 8(b)(1)(A). Haddon House Food
Products, 269 NLRB 338, 340 fn. 9 (1984), enfd. 764 F.2d
182 (3d Cir. 1985).
It is also contended, the record supports, and I find that
the Respondent Employer provided unlawful assistance to the
Teamsters in violation of Section 8(a)(2) by canceling over-
time on 22 April 1987, 1 day before a scheduled non-Board-
conducted representation election in order to encourage its
employees to attend the Teamsters meeting. It is undisputed
that the Company had eliminated overtime work that evening
‘‘in order to permit the employees to attend [the] Teamsters
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Assigned jobs are identified or classified in the Natico-Local collective-
bargaining agreement. When a job opening occurs, that opening is posted for
3 days. Interested employees sign for the posted opening and the employee
with the greatest seniority is awarded that ‘‘assigned’’ job after 30 days.
36 Sec. 3.1 of the most recently expired Natico-Local 1 contract states ‘‘It
is understood and agreed that seniority shall be applied in cases of layoff, call-
back, promotion, demotion, overtime work, vacation preference, and shift pref-
meeting.’’ (R. Emp. Br. 154.) However, the Respondent Em-
ployer points out that it had similarly altered overtime sched-
ules to accommodate Local 1 when that Union was the ex-
clusive bargaining representative and therefore it was ‘‘mere-
ly’’ providing the Teamsters, as the employees ‘‘majority
representative’’ the same service. (Id.)
In the circumstances of this case, noting particularly, that
Respondent Employer had engaged in unremedied unlawful
action seriously undermining Local 1’s majority status, I find
that no question concerning representation could he raised at
the time the Teamsters were accommodated. See Elias
Mallouk Realty Corp., 265 NLRB 1225, 1236 (1982). Ac-
cordingly, I find that the Respondent Employeer’s assistance
to the Teamsters violated Section 8(a)(2) as alleged.
Still further, the General Counsel contends and I find in
the circumstances of this case, that the Respondent Employ-
er’s role in the conduct of the non-Board representation elec-
tion in April 1987 independently violated Section 8(a)(1) of
the Act. First, it is noted, that the election was conducted
against a backdrop of unremedied unfair labor practices ad-
versely affecting every unit employee. Thus, as noted pre-
viously, the Company, in violation of Section 8(a)(5), by-
passed and undetermined Local 1’s representative standing
by unilaterally ceasing its contributions to the Union’s pen-
sion fund and reducing the wages of all employees in the
amount of $1.43 per hour. In October 1986, these unilateral
changes gave rise to a second consolidated complaint.
In January 1987 the Company’s assault on the incumbent
Union’s exclusivity continued even in the face of the
aforenoted complaint by its recognition of the Teamsters and
concomitant withdrawal of recognition from Local 1. This
unlawful action led to still another consolidated complaint
dated 9 April 1987 (G.C. Exh. 1(x)).
Additionally, the record disclosed that the Company fa-
vored the Teamsters by negotiating with that Union in Feb-
ruary 1987 to compensate the employees for the money cost
while the paycut was in effect. This advantage by the Team-
sters could hardly escape notice from the bargaining unit. In
fact, Dry expected the Teamsters committee to advise em-
ployees that the Company would restore their lost wages.
(Tr. 1021.) Although Dry testified that he had previously of-
fered to return the lost wages during negotiations with Local
1, I find that offer of little consequence in the circumstance
of this case. Thus, the record disclosed that Dry’s offer was
conditional as part of a broader contract package and only
after he had already engaged in certain other unremedied un-
fair labor practices. In any event, the fact remains that the
Teamsters were wrongfully and unlawfully recognized at a
time when a question concerning representation could not be
raised due to the Company’s unremedied unfair labor prac-
tices. The disputed election was held nearly 3 months later
while the Teamsters were still wrongfully recognized as the
exclusive bargaining representative for the unit employees.
As for the election itself, the Respondent Employer relies,
inter alia, that it was conducted by secret ballot under the su-
pervision of an independent accounting firm. I find of greater
significance, that the election was conducted in a context of
serious unfair labor practices thereby creating a coercive set-
ting. See generally Struksnes Construction Co., 165 NLRB
1062 (1967). As such, I find that the polling served no legiti-
mate purpose or objective basis for determining employee
choice of bargaining representative. See also Louisiana-Pa-
cific Corp., 283 NLRB 1079 (1987). Accordingly, I find that
the Respondent Employer’s role in the conduct of the elec-
tion violated Section 8(a)(1) as alleged.
2. Other allegations
a. Respondent Employer’s removal of Robert Zozofsky
as a day-shift extruder operator in violation of
Section 8(a)(3)
It is alleged that in March 1987, the Respondent Employer
refused to permit its employee, Robert Zozofsky, to continue
to work as a day-shift extruder operator because of his activi-
ties as a shop steward for Local 1 and that it thereby violated
Section 8(a)(3) of the Act.
The record disclosed that in early 1987, the Respondent
Employer shut down its night-shift operations for non-
discriminatory reasons. Zozofsky, a night-shift extruder oper-
ator asserted his seniority and bumped Mark Cutler, the day-
shift extruder operator from that position. For the next 8
weeks Zozofsky worked as a day-shift extruder operator
without interruption. On Friday, 13 March, Zozofsky had an
argument with Charles McCool, a shop steward for the then
recognized Teamsters. The argument related to an event that
took place 1 year earlier. Zozofsky asserted that he had just
learned that McCool had ‘‘passed the word around’’ that he,
Zozofsky, had instructed the maintenance employees not to
work on a particular Saturday, a year ago. At that time,
Company officials had asked the maintenance employees to
work on Saturday to repair the winder in time for the incen-
tive program, which was then scheduled to begain that Mon-
day.
McCool, for his part, denied to Zozofsky, that he had been
spreading the word that the latter was responsible for the
failure of the maintenance employees to work on the Satur-
day in question. As noted above, this Zozofsky-McCool ar-
gument occurred on Friday, 13 March 1987. The following
Monday, Zozofsky was told by Plant Manager William
Dougherty, in the presence of McCool and two other Team-
sters stewards, that he could not work as a day-shift extruder
operator because that had never been his ‘‘assigned’’ job.35
McCool testified that he called for this meeting with
Zozofsky because Cutler told him, that his complaint had not
yet been acted on and that he, McCool, wanted to provide
Zozofsky with a forum to defend his position.
It is undisputed that Zozofsky had never held the day-shift
extruder’s position as an ‘‘assigned’’ job. However, it is also
undisputed that on some three other similar occasions when
the night shift had been shutdown or laid off, that Zozofsky
had exercised his seniority and had bumped into the day-shift
extruder position. According to Plant Manager Dougherty, he
had wrongly assumed that Zozofsky had once held the ex-
truder operator job on the day shift as ‘‘assigned.’’ The fact
that Zozofsky had performed the disputed work on the day
shift did not by itself establish that the position was his as
an ‘‘assigned’’ job.36 This time, Cutler, the bumped daytime
689NATICO, INC.
erence.’’ (G.C. Exh. 3, p. 2.) As the section is silent with regard to ‘‘as-
signed’’ jobs, it does not appear that this provision, relied by the General
Counsel, is dispositive of the issue. The only other section (3.7) dealing with
the ‘‘bumping privilege covers daily or short time changes but no reference
to ‘‘assigned’’ jobs. (Id., p. 3.)
37 Zozofsky had poor recall, was vague, equivocal, not fully responsive and
was otherwise an unimpressive witness. Overall, including demeanor factors,
I find McCool a more reliable witness and credit his testimony over
Zozofsky’s in areas of conflict.
38 Cutler subsequently filed a written grievance on a Teamsters ‘‘Grievance
Form’’ for ‘‘lost overtime’’ as a result of being ‘‘[u]njustly removed from my
job in violation of [the] contract.’’ (R. Emp. Exh. 28.) Dougherty testified that
the written grievance was filed after Zozofsky had been removed. He may have
been mistaken as the grievance itself is dated February 24, 1987, and, if accu-
rate, it would appear to have been filed before Zozofsky was removed. Cutler
did not testify. As I have no basis for inferring that Cutler was not equally
available to the General Counsel, I draw no adverse inference against the Re-
spondent Employer for its failure to call Cutler as a corroborative witness. See
Wayne Construction, 259 NLRB 571 fn. 1 (1981). Although I cannot discern
from this record with confidence when Cutler filed his formal written griev-
ance I do credit Dougherty’s uncontroverted testimony that Cutler complained
to him verbally before Zozofsky was removed, as internally consistent.
extruder operator, verbally complained to Dougherty who
then investigated and discovered that in fact, all Zozofsky’s
‘‘assigned’’ jobs were on the night shift.
The General Counsel noted that the Respondent Employer
had demonstrated a preference for the Teamsters over Local
1 and that Local 1 Shop Steward Zozofsky was removed
from this job almost immediately after his argument with
McCool, a shop steward for the Teamsters. Thus, the General
Counsel contends, ‘‘a clear inference [of discriminatory mo-
tive] is raised’’ that the Respondent Employer took this dis-
puted action ‘‘by a desire to appease the [Teamsters] and to
punish Local 1 and its supporters.’’ I find, contrary to the
General Counsel, for reasons noted below, that the record
falls short of establishing a inference of unlawful motivation.
First, it is noted that Zozofsky was admittedly accused of
telling maintenance employees not to cooperate with the
Company by working on a particular Saturday a full year be-
fore he was removed from the job in question. Even when
removed, it is noted that Zozofsky continued to work on the
day shift in another capacity with no loss of pay. There is
a dearth of evidence on this record of any threats or any
other adverse action taken against Zozofsky during the inter-
vening 12 months. Further, it is not alleged nor does the
record disclose that the Respondent Employer discriminated
against any other official or supporter of Local 1. Some of
these officials, such as Ferguson, were clearly more active
and influential in Local 1 activities than Zozofsky.
Insofar as relating Zozofsky’s disputed removal to his ar-
gument with McCool, Zozofsky testified that he (Zozofsky)
was ‘‘upset’’ and ‘‘very angry’’ but did not testify regarding
McCool’s behavior or attitude. McCool characterized the
verbal exchange with Zozofsky as more of a misunder-
standing than an argument.37 In any event, Zozofsky did not
testify nor does the record disclose that McCool was angry
or that he threatened Zozofsky with any adverse action. The
timing of Zozofsky’s removal, although not free of suspicion,
came after employee Cutler complained and Dougherty in-
vestigated and learned that Zozofsky had not previously
worked as a day-shift extruder operator as an ‘‘assigned’’
job.38
On the state of this record, I find that the General Coun-
sel’s assertion that Zozofsky was discriminated against be-
cause of his activities as a shop steward for Local 1 is based
largely on suspicion and conjecture or speculation. In sum,
I find that the General Counsel has failed, to establish prima
facie, as required, that an inference of illegal motive for Re-
spondent Employer’s disputed action is warranted. Wright
Line, 251 NLRB 1083, 1089 (1980). Accordingly, I shall
recommend that this allegation be dismissed.
b. Preston Dry’s statement to employee Robert
Cheesman in violation of Section 8(a)(1)
Robert Cheesman, a maintenance employee, testified that
within 1-1/2 months after the Company had reduced the
hourly wage rate, he had a brief exchange with Dry on that
subject. According to Cheesman, on that occasion, Dry was
passing through the facility and as he came to Cheesman’s
work station, Cheesman asked him ‘‘when [are we] going to
get our money back’’ and Dry responded ‘‘when we get rid
of the union.’’ Cheesman acknowledged on cross-examina-
tion that Dry was laughing at the time he made the state-
ment, as was Cheesman. On the other hand, Cheesman also
testified that although Dry had a habit of joking, Cheesman
could not tell whether Dry was joking on this occasion. Dry
could not recall any such incident.
First, I credit the account provided by Cheesman. In doing
so, it is noted that Cheesman was still employed by the Re-
spondent Employer at the time he testified. As such, he testi-
fied against his self interest, a factor the Board has long in-
structed shall not be lightly disregarded. See Unarco, Inc.,
197 NLRB 489, 491 (1972); Gateway Transportation, 193
NLRB 47, 48 (1972). Further, it is noted that Dry did not
deny making the statement ascribed to him by Cheesman;
Dry merely testified that he could not recall the incident.
As for the statement itself, although it may have been
made in a jocular vein, I find of greater significance that it
touched on a most sensitive subject with some lingering am-
biguity. The Board has long observed that the coercive and
unlawful effect of a threatening statement is not ‘‘blunted’’
merely because said statement is ‘‘accompanied by laughter
or made in an offhand humorous way. ‘‘ See Ethyl Corp.,
231 NLRB 431, 434 (1977); see also Champion Road Ma-
chinery, 264 NLRB 927, 932 (1982) (statement found to be
coercive while supervisor frequently joked and employee tes-
tified that he thought the supervisor was joking). Thus, al-
though Cheesman candidly acknowledged that Dry had a
tendency to joke around, Cheesman, as noted above, was un-
sure whether Dry was serious or just kidding at the time in
question. Clearly, lost wages was not amusing to employees
as the record disclosed that the subject preoccupied their time
at the facility. In this regard, even Dry observed that after
he had cut wages, the employees were so upset and angry
and concomitantly production suffered that he was compelled
to later restore those cuts.
Against this backdrop and noting also that the unilateral
wage reduction itself was unlawful, I find that it was incum-
bent on Dry, if he elected to respond to an employee inquiry
about lost wages, as here, that his remarks be unambiguous
and free of any connection to the Union or other protected
concerted activities. Anything less, as in the instant case, in
my view, tends to restrain and coerce employees in violation
of Section 8(a)(1). Accordingly, I find that the Respondent
Employer violated Section 8(a)(1) as alleged.
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 The General Counsel acknowledged, and I find, that consistent with Sec.
10(b) of the Act, the cognizable period cannot revert to a time more than 6
months before the filing of the relevant charge on 19 August 1986.
40 Although the record clearly disclosed that the Respondent Employer and
Teamsters Local 676, at some unspecified time, negotiated and executed a col-
lective-bargaining agreement, this agreement was not specifically alleged to be
unlawful nor was the matter fully litigated. Further, the record is silent as to
whether that agreement contained a union-security provision. In these cir-
cumstances, I cannot make any additional 8(a)(2) and (3) findings with regard
to the agreement. However, as noted above, I shall recommend that the parties
cease and desist from their collective-bargaining relationship covering the unit
of employees here, unless and until Teamsters Local 676 is certified as the
exclusive collective-bargaining agent for the unit employees.
CONCLUSIONS OF LAW
1. The Respondent Employer, Natico, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. United Independent Union, Local 1 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Teamsters Local 676 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica is a labor organization within the meaning of Section 2(5)
of the Act.
4. The unit as set forth in section 2, article 2.1 of the most
recent collective-bargaining agreement between the Respond-
ent Employer and Local 1, effective by its terms for the pe-
riod December 16, 1982, to December 16, 1985, is, and has
been at all times material, appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. At all times relevant to this case, Local 1 has been and
is now the exclusive collective-bargaining representative of
the employees in the unit referred to in paragraph 4, above,
within the meaning of Section 9(a) of the Act.
6. By withdrawing recognition from Local 1 as the exclu-
sive collective-bargaining representative of the employees in
the unit noted above on or about 30 January 1987, and refus-
ing to bargain with Local 1 since that date; by unilaterally
reducing the wages of its employees by $1.43 per hour since
on or about 7 April 1986 before any unlawful impasse with
a corresponding reduction of vacation benefits for employee
Robert Ferguson; and by unilaterally ceasing to make pen-
sion plan contributions since on or about 20 February 1986
before any unlawful impasse, Respondent Employer engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
7. By recognizing Teamsters Local 676, since on or about
30 January 1987, as the exclusive collective-bargaining rep-
resentative of its employees in the unit noted in paragraph
4, above; and by providing other assistance to Local 676 in
the form of canceling overtime on 22 April 1987 to encour-
age its employees to attend a union meeting sponsored by
Local 676, Respondent Employer engaged in unfair labor
practices within the meaning of Section 8(a)(2) and (1) of the
Act.
8. By accepting recognition, since on or about 30 January
1987, as the exclusive collective-bargaining representative of
Respondent Employer’s employees in its unit noted in para-
graph 4, above, the Respondent Union violated Section
8(b)(1)(A) of the Act.
9. By polling its employee on 23 April 1987 regarding
whether they desired to be represented by Respondent Union
or Local 1 and by threatening its employees to continue the
wage cut referred to in paragraph 6, above, until unit em-
ployees withdrew their support for Local 1, Respondent Em-
ployer engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
11. The General Counsel has not established by a prepon-
derance of the evidence that Respondent Employer otherwise
violated Section 8(a)(5) of the Act as alleged.
12. The General Counsel has not established by a prepon-
derance of the credible evidence that Respondent Employer
discriminatorily refused to permit its employee, Robert
Zozofsky, to work as a day-shift extruder operator because
of his activities as a shop steward for Local 1, within the
meaning of Section 8(a)(3) of the Act, as alleged.
THE REMEDY
Having found that the Respondent Employer and the Re-
spondent Union have engaged in certain unfair labor prac-
tices, I shall recommend that they be required to cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
In particular, having found that the Respondent Employer
has unlawfully withdrawn recognition from Local 1 and has
failed and refused to bargain with Local 1 as the exclusive
representative of the bargaining unit found appropriate here,
in violation of Section 8(a)(5), I shall recommend that Re-
spondent Employer recognize and, on request, bargain with
Local 1 as the exclusive representative of the employees in
the appropriate bargaining unit. Further, having found that
the Respondent Employer also violated Section 8(a)(5), by
ceasing its contributions to the union pension plan, I shall
recommend that the Respondent Employer make the employ-
ees whole39 by making such contributions in the manner
noted in KBMS, Inc., supra.
As for Respondent Employer’s other unilateral changes in
violation of Section 8(a)(5), it appears that the employees
have already been made whole thereby obviating the need for
further affirmative action in this limited I regard.
Still further, having found that the collective-bargaining re-
lationship between Respondent Employer and Teamsters
Local 676 for the unit found appropriate here from its incep-
tion violated Section 8(a)(2) and (1) and Section 8(b)(1)(A)
of the Act, I shall recommend that the parties cease and de-
sist therefrom. However, nothing here shall be construed as
requiring or permitting the varying or abandoning of any pro-
vision contained in the collective-bargaining agreement be-
tween the parties which increased wages, benefits, and or
other employees rights and privileges over those which pre-
viously existed.40 See, e.g., Ana Colon, Inc., 266 NLRB 611,
613–614 (1983); Triangle Sheet Metal Workers, 237 NLRB
364, 371 (1978).
[Recommended Order omitted from publication.]