R. D. Goss, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1973

203 N.L.R.B. 1173 (N.L.R.B. 1973)

R. D. GOSS, INC.
R. D. Goss, Inc. and International Brotherhood of
Electrical Workers, Local 5, AFL-CIO. Case 6-
CA-6212
June 5, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 26, 1973, Adminstrative Law Judge
Ivar H. Peterson issued the attached Decision (errata
issued on March 2, 1973) in this proceeding. Thereaf-
ter, the Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in answer
to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge 3 only to
the extent consistent herewith .4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that R. D. Goss, Inc.,
Clearfield, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with International Brotherhood
of Electrical Workers, Local 5, AFL-CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
All construction electricians, including ap-
prentices and working foremen working out of
the R. D. Goss, Inc., Clearfield, Pennsylvania,
place of business, excluding all other employees,
office clerical employees and guards, profession-
al employees and supervisors as defined in the
Act.
(b) Questioning its employees concerning their in-
terest or activity on behalf of the aforesaid Union or
1173
any other labor organization and taking pictures of
peaceful pickets.
(c) In any like or related manner interfering with,
restraining, or coercing 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) Upon request, bargain with International
Brotherhood of Electrical Workers, Local 5, AFL-
CIO, as the exclusive representative of the employees
in the above-described appropriate unit and, if an
understanding is reached, embody said under-
standing in a written signed agreement.
(b) Upon application, offer to reinstate the striking
employees, to their former jobs, or if they no longer
exist , to substantially equivalent jobs, and to make
them whole for the earnings they lost as a result of any
failure to return them to work 5 days after their un-
conditional application to return, plus 6 percent inter-
est.
(c) Post at its Clearfield, Pennsylvania, plant cop-
ies of the attached notice marked "Appendix." 5 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's authorized representative, shall be post-
ed by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
i The Respondent has requested oral argument This request is hereby
denied as the record , exceptions, and briefs adequately present the issues and
positions of the parties.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C A 3, 1951). We have carefully examined the record
and find no basis for reversing his findings.
3 The Administrative Law Judge finds that taking a picture of pickets
under the circumstances of this case is a violation of Sec. 8(a)(1) of the Act.
We agree and find that , in accord with the testimony of a witness otherwise
credited , Goss did, in fact , take a picture.
Events occurring more than 6 months prior to the filing of the charges
of this case are used as background and are not found to be separate viola-
tions of Sec 8(a)(1) or 8(a)(5) of the Act
5 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
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."
203 NLRB No. 175
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by refusing
to bargain collectively with International Brother-
hood of Electrical Workers, Local 5, AFL-CIO, and
unlawfully questioned employees relating to their
union activity and unlawfully took a picture of peace-
ful pickets:
WE WILL NOT refuse to bargain collectively with
International Brotherhood of Electrical Workers,
Local 5, AFL-CIO, as the exclusive representa-
tive of all employees in the appropriate bargain-
ing unit . The appropriate unit is:
All construction electricians, including ap-
prentices and working foremen working out of
the R. D. Goss, Inc., Clearfield, Pennsylvania,
place of business, excluding all other employ-
ees, office clerical employees and guards, pro-
fessional employees and supervisors as defined
in the Act.
WE WILL NOT unlawfully question employees
concerning their concerted or union activity or
otherwise interfere with their rights as guaran-
teed in Section 7 of the National Labor Relations
Act, as amended.
WE WILL NOT unlawfully take pictures of peace-
ful pickets.
WE WILL upon request bargain with Interna-
tional Brotherhood of Electrical Workers, Local
5, AFL-CIO, as the exclusive representative of
the employees in the above-described appropri-
ate unit and, if an understanding is reached, em-
body said understanding in a written signed
agreement.
WE WILL, upon application, offer full reinstate-
ment to any striking employees and pay them for
the earnings they lost as a result of any failure to
return them to work 5 days after their uncondi-
tional application to return, plus 6 percent inter-
est.
R. D. Goss, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2944.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON , Administrative Law Judge: I heard this
case in Clearfield, Pennsylvania, on November 29, 1972,
through December 2, 1972, both inclusive, upon the com-
plaint issued by the Regional Director for Region 6 on
September 29 based upon charges filed by Local 5, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, on
July 26, as amended on September 29. Briefly stated, the
complaint, as amended, alleged that since on or about Janu-
ary 27 the Respondent had unlawfully refused to bargain
with the Union as the exclusive representative of all con-
struction electricians, including apprentices and working
foremen, working out of the Respondent's Clearfield place
of business, for which unit the Union had been certified
following an election on September 21, 1971. Additionally,
the complaint alleged that the unit employees went on strike
on or about June 30, 1972, which strike was caused, pro-
longed, and continued by the unfair labor practices of the
Respondent. In its answer filed on October 4, the Respon-
dent admitted certain jurisdictional allegations but denied
that it had committed any unfair labor practices. Pursuant
to notice issued on November 21, counsel for the General
Counsel advised that he intended to amend the complaint
at the trial to substitute a new allegation for paragraph 6(a)
of the complaint.
Upon the entire record in the case and my observation of
the witnesses as they testified, and a careful consideration
of the briefs filed with me by the parties on January 15,
1973, I make the following: I
FINDINGS OF FACT
I JURISDICTION
Respondent, a Pennsylvania corporation, with its sole
place of business located in Clearfield, is engaged in electri-
cal contracting. During the 12-month period immediately
preceding the issuance of the complaint, the Respondent
purchased and received goods and materials valued in ex-
cess of $50,000 directly from points outside the Common-
By letter dated January 19, counsel for the Respondent undertook to
"correct what I consider to be rather substantial errors of fact relied upon"
by counsel for the General Counsel in the latter's brief. The unopposed
motion of counsel for the General Counsel to correct the transcript is hereby
granted
R. D. GOSS, INC.
wealth of Pennsylvania for use at its Clearfield facilities. I
find that the Respondent is and at all times material has
been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. I further find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
Basically, the Respondent's business is divided into resi-
dential and nonresidential work. The former relates to serv-
ices performed in homes and apartments with a maximum
of four families residing therein. Nonresidential work con-
cerns retail stores , shopping centers , service stations , hospi-
tals, and other large structures. Nonresidential work is
divided into rated and nonrated work; the former requires
that the prevailing union wage scale must be paid, whereas
the latter relates to work on which the union scale is not
required to be paid. As noted above, the Union was certified
as the exclusive collective-bargaining representative on Sep-
tember 21, 1971, for the following appropriate unit within
the meaning of Section 9(b) of the Act:
All construction electricians, including apprentices and
working foremen working out of the R. D. Goss, Inc.,
Clearfield, Pennsylvania, place of business, excluding
all other employees, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
On June 15, 1971, I heard a case involving the Respon-
dent and the Union concerning the termination of three
employees and other allegations that the Respondent had
violated Section 8(a)(1) of the Act. On July 27, 1971, I issued
my Decision in that proceeding finding that the Respondent
had engaged in the alleged unfair labor practices. That deci-
sion (Case 6-CA-5412) was adopted by the Board on Au-
gust 25, 1971, in the absence of exceptions. Walter Fleck
was one of the discriminatees in that case . During the last
week in January 1972, Goss admittedly arranged to have
dinner with Fleck and Fleck credibly testified that Goss
questioned him about the Union and told him that he could
be assured of continued employment with the Respondent
if he gave up the Union. According to Fleck he answered
that if Goss would sign an agreement with the Union he
would gladly work for him. Fleck further testified that Goss
replied that he had no intention of signing a contract with
the Union and stated that the Union was controlled by the
Mafia.
About the middle of January Goss went to the hospital
construction site in Lock Haven to talk with Bruce Young,
another discriminatee from the previous case. Goss ques-
tioned Young about what the Union had to offer him that
the Respondent could not offer, to which Young replied
that the Union might be able to secure more benefits and
higher wages for the employees. Goss then took a copy of
the union contract from his pocket and, according to Young
and another employee who was present, Regis Grattan, stat-
ed that some day, "I might have to sign a union agreement,
but until then, I run an open shop. I'll never sign a union
agreement unless they force me to. The Union was Mafia
1175
run and they were people manipulators."
Larry Guelich, an employee, testified without denial that
about March 30 he asked Goss for a raise in pay. Goss
called Guelich an agitator and stated that Guelich and
Young were of the same caliber. Goss inquired what Gue-
lich felt about the Union, to which the latter replied that he
thought it might be beneficial to the employees. Goss then
spoke at some length about the Union and concluded his
remarks by saying that he would never sign an agreement
with "a Mafia outfit like that."
On April 20, a meeting was held at the Clearfield Com-
munity Center attended by employees as well as manage-
ment personnel. Near the end of the meeting one of the
employees inquired if Goss had heard from the Union. Goss
replied that the employees who had been discriminatorily
discharged had been reinstated with backpay and that two
negotiating sessions had been held with the Union. Howev-
er, he stated that he had not heard from the Union for some
time and further said that he had no intention of signing a
contract with the Union because it was controlled by the
Mafia.2
On May 25 Goss summoned Harold Graham, a working
foreman, to his office. According to the credited testimony
of Graham, Goss stated that he was still attempting to "get
something" on the "troublemakers" that would stand up in
court. Graham further testified, and I credit him, that Goss
stated that he was "never going to sign a contract" with the
Union. On June 25 Goss called William Swisher, also a
working foreman, to his office and gave him a letter stating
that Swisher was being laid off. According to Swisher, Goss
asked him why he and Harold Graham had done this to
him. He also stated, "that he would lock the front door and
throw the keys away before he would ever sign a union
contract."
The employees went on strike on June 30. Bernard Bear-
er, an employee who joined the strike, testified that while he
and Ed Thomas, another striking employee, were walking
the picket line in front of the Clearfield Hospital, Goss
drove up and started talking to them. Goss had a camera
with him and stated that he could finish the hospital job
with the crew that he had and that he could always get more
men. Thomas then pointed to the picket sign and told Goss,
according to Bearer, "all you have to do is sign right here,"
pointing to that portion of the sign which stated Goss "re-
fuses to sign a bargaining agreement with Local No. 5
IBEW, AFL-CIO."
It is, of course, elementary that questioning employees
regarding their own union activities and sympathies as well
as those of fellow employees is violative of Section 8(a)(1)
of the Act. In addition, the Board has held that an
employer's predictions to employees that it would never
sign a union contract or that it would close the doors before
doing so is equally violative of Section 8(a)(1) of the Act. It
has also been held that an employer has no right to take
pictures of employees engaged in peaceful picketing of his
2 A number of witnesses produced by the Respondent testified as to wheth-
er Goss did state that he would not sign a union contract or that the Union
was controlled by the Mafia . Eight of the eleven witnesses who testified for
the Respondent stated that they did not recall whether Goss made these
statements.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premises in a lawful strike , in the absence of a showing of
justification or of valid explanation for such action. Flam-
beau Plastics Corp., 167 NLRB 732, 743; Gopher Aviation,
Inc., 160 NLRB 1698. Such conduct can amount to unlaw-
ful surveillance and, consequently , interferes with , restrains,
and coerces employees in the exercise of their rights guaran-
teed them in Section 7 of the Act and, therefore, is violative
of Section 8(axl) of the Act . I find that in the foregoing
respects the Respondent violated Section 8(axl) of the Act.
B. The Alleged Refusal To Bargain
Following its certification as exclusive bargaining repre-
sentative on September 21, 1971, the Union first met with
representatives of Respondent on October 15. At the outset,
William Branthoover, president of the Union, distributed a
copy of the master labor agreement between the Union and
Western Pennsylvania Chapter, Inc., National Electrical
Contractors Association, herein referred to as NECA,
which was effective from 1968 to 1972. The parties dis-
cussed the proposed wage scale in this agreement as it ap-
plied to the Respondent's residential and nonresidential
work. The Respondent expressed considerable concern re-
garding the residential wage scale . The Union's representa-
tives informed the Respondent that the proposed contract
would not apply to work in progress or upon work on which
the Respondent had theretofore submitted a bid. The meet-
ing lasted about an hour and was recessed upon the
Respondent's request for more time to consider the various
provisions of the proposed contract. Another meeting was
scheduled for November 5, but this was later changed to
November 4.
Counsel for the Union stated that "at the very onset of
the November 4 meeting, Goss stated that about one third
of his work consisted of residential work or small commer-
cial work" and that "he couldn't possibly do that kind of
work" and pay the union scale because he would not be
competitive . Representatives of the Union stated that they
recognized that and , according to Kaplan, "while no specif-
ic wage scale was submitted at that time . . . there was some
discussion that there would be a lesser rate made available
to him for that type of work." 3 The Respondent stated that
he did not wish NECA to represent him in the resolution of
grievances and the Union responded that with respect to
matters affecting the Respondent the latter could name any-
one he desired to represent him. The Respondent also disap-
proved the clauses relating to subletting, the apprentice
program, the restrictions placed upon working foremen, and
possible deductions that would have to be made from the
checks of employees . With respect to the wage scale for
residential work, the Union advised Goss that its Interna-
tional at that time was negotiating a contract with NECA
that would lower the residential rate to about $5 an hour.
Most of the negotiating meeting was taken up with a
discussion of health and welfare programs . At the outset
Goss inquired why his bargaining unit employees could not
remain enrolled in the present health and welfare coverage
which was provided through a plan administered by Associ-
i In fact, only about 8.5 percent of Respondent 's work was residential.
ated Builders and Contractors, Inc., herein referred to as
ABC. In answer, the Union stated that this was not practical
because the Respondent could not give steady employment
to all of its employees . It is well known that in the construc-
tion business the number of an employer's employees varies
with the amount of work available and in consequence,
Goss might have work for an electrician 1 month but not the
next. Once an employee left the Respondent's employ, he
would lose the coverage of the ABC plan and be'without
health and welfare benefits. Thus, the Union argued that
under its plan an electrician would receive health and wel-
fare coverage without regard to the employer for whom he
worked.
With respect to the Respondent's concern regarding the
cost and coverage provided by the Union's health and wel-
fare plan, a comparison indicated that the Union's plan
provided more extensive coverage and its cost amounted to
30 cents per hour as compared to 28 cents per hour for the
ABC plan. Finally, Goss contended that an insurmountable
obstacle to agreement was the requirement in the ABC plan
that 75 percent of the Respondent's total number of eligible
employees had to be enrolled in the plan or else the Respon-
dent would lose the coverage. The Respondent contended
that by removing the unit employees from the ABC plan he
could not be able to satisfy the 75-percent requirement. In
response to this, the Union suggested that the Respondent
divide its payroll into two segments, one covering those
employees represented by the Union and the other nonunit
personnel including Goss.
Counsel for the Respondent undertook to contact the
insurance company to inquire whether the Respondent's
employees could be divided into two segments, with the
Respondent being required only to enroll 75 percent of the
nonunit employees to retain the ABC coverage. Under date
of November 18, 1971, counsel for the Respondent mailed
counsel for the Union a letter stating that ABC required that
75 percent of the eligible employees be enrolled in its plan
before coverage could be extended and that this require-
ment could not be waived. The representatives of the Union
indicated that the International had under consideration
negotiations with regard to the residential agreement and
wage scale which, if satisfactorily concluded, would put it
in a position to offer the Respondent a residential wage
scale in the area of $5 per hour which the Respondent
indicated, in the October meeting, would be acceptable to
it.
Early in January 1972 Michael Namadan, an Internation-
al representative of the Union, was assigned to assist the
Union in its negotiations with the Respondent. He credibly
testified that early in January he telephoned Goss to ascer-
tain what obstacles the latter felt would prevent the execu-
tion of an agreement . According to Namadan , Goss stated
that the wage scale in the proposed contract was too high
for his residential work and suggested that the International
either place Clearfield County in the jurisdiction of Local
996 IBEW, or reduce the residential rate of the Union.4
Early in May the International approved the agreement
and thereupon Namadan telephoned Goss and informed
4 The Respondent , through another concern nearby , had an agreement
with Local 996
R. D. GOSS, INC.
him of the latest developments and requested that the par-
ties set a date to begin negotiations . Namadan credibly
testified that Goss stated he did not wish to meet with the
Union and that, as far as he was concerned , he would not
execute an agreement with the Union. In addition, Nama-
dan credibly testified that Goss stated that, since the law
requires the Respondent to meet with the Union, the Union
should send a letter requesting a date to begin negotiations,
but that he (Goss) would only be "going through the mo-
tions ." Namadan did mail a letter and the parties agreed to
meet on May 31. When they met on May 31, the Union gave
the Respondent a copy of the newly completed residential
agreement and advised that the basic rate therein was $5.25
per hour , which was about the same as the Respondent paid
under the contract with Local 996. The cost of the fringe
benefits amounted to only 30 cents per hour as compared
with 45 cents per hour in the Local 996 agreement . In addi-
tion, the nonresidential rate of $8 .60 per hour proposed in
the original contract was being reduced by 10 percent, or 86
cents per hour, to a figure of $7.74 per hour.
The Respondent made no comment on the new proposal,
but stated that he did not desire to pay travel expenses to
employees . The Union responded that if that matter pre-
sented a problem it would waive travel expenses on jobs on
which the Respondent had already submitted bids and, in
addition, it would be willing to negotiate further on travel
expenses on future jobs. Goss next raised an objection to the
payment of double time for overtime work and the Union
then conceded overtime work could be done at time and a
half.
The parties then turned to a discussion of the scope of the
residential agreement . The proposal of the Union covered
only work performed on units built primarily for family
residence , not exceeding four-unit apartments. Goss
claimed that the proposal was not adequate because it did
not cover small stores , churches, service stations , and the
like. In response , the Union stated that the Respondent
could extend the scope of the residential agreement to in-
clude this type of work at the $5 .25 per hour rate.
The next subject discussed was the health and welfare
program . Goss referred to the 75-percent requirement of the
ABC plan and stated that it was a stumbling block to reach-
ing an agreement . In addition , Goss alleged that while the
difference between the cost per hour of the two programs
was slight , it had paid only 25 percent of the hourly cost of
the ABC plan whereas , in contrast , it would have to pay the
full hourly cost of the Union plan. In reply, the Union stated
that negotiations could continue on those points and asked
if the Respondent objected to any other aspect of the pro-
posal . The Respondent then requested time to study the
proposals, and later the parties agreed to meet on June 7.
Later that day Namadan realized June 7 would be incon-
venient for him and called Waters. The parties agreed to
meet on June 12. However , Waters told Namadan that he
doubted that any subsequent meetings would occur, be-
cause Goss "was not going to go along with the agree-
ments-any of the agreements and that he would get back
to [Namadan ] the first of the week to let [him] know of Mr.
Goss' stand after he had a chance to discuss the matter with
him further ." Waters did not telephone Namadan and the
latter, therefore , called Waters who stated that he had been
1177
busy and had not had an opportunity to discuss the matter
with Goss . A few days thereafter , according to Namadan's
uncontradicted testimony , Waters did telephone him and
stated that Goss definitely would not sign a contract. In a
letter dated June 7 , Waters wrote Namadan that an impasse
in negotiations had been reached and the June 12 meeting
was therefore cancelled . According to Namadan 's undenied
testimony, upon receipt of this letter , he telephoned Waters
and stated that in the view of the Union an impasse had not
been reached and that the Union desired to continue negoti-
ations at any time or place in hopes that an agreement could
be reached . Namadan further denied the claim in Waters'
letter that he (Namadan) had suggested future meetings
should be held only if there was a reasonable chance of
reaching an agreement . The conversation between Nama-
dan and Waters ended by the latter reiterating the statement
that Goss would not sign a contract.
Early in August 1971, an organizational dinner was held
by NECA at Ridgway, Pennsylvania , for the purpose of
familiarizing electrical contractors in the Ridgway-Brad-
ford area with the benefits of joining an employer associa-
tion . Goss attended the meeting in his capacity as president
of Elco Electrical Contractors , Ridgway , Pennsylvania. The
chapter manager of NECA, Fred Wilkin, testified that he
asked Goss if he intended to become a member of the
association ; Goss replied , according to Wilkin , that he was
interested but desired to be assured that membership in the
association would not require that he sign a contract with
the Union, stating that as long as he had money and
strength to fight he would not enter into an agreement with
the Union.
Two of the Respondent 's foremen , Harold Graham and
William Swisher , testified that just before the three discrimi-
natees in the prior case returned to work in August 1971,
Goss told them that they should endeavor to "get some-
thing" on the three employees so that he could terminate
them and substantiate his actions in court . Goss gave Swish-
er a notebook in which to record information about the
returned discriminatees and, as Swisher credibly testified,
Goss questioned him as to how he had voted in the election.
Swisher answered that he had voted in the negative. Both
Graham and Swisher also testified that at a number of
meetings of foremen Goss stated that he had no intention
of signing a contract with the Union . During the last week
in January Goss arranged to have dinner with Fleck, and
testified that he desired to talk with Fleck because the latter
was experiencing some domestic problems and his father
had recently passed away . However, Fleck testified, and I
credit him , that his father did not die until April 1972; he
further testified that at this meeting Goss questioned him as
to why the employees desired to be represented by the
Union. In answer, Fleck stated that they desired the benefits
and wages that the Union might obtain for them . Further,
Fleck testified that Goss told him that he could be assured
of continued employment with the Respondent if he gave
up the Union , to which Fleck answered that if Goss signed
the agreement with the Union he would gladly work for
Respondent . Fleck added that in response Goss stated that
he had no intention of signing a contract with the Union
because it was controlled by the Mafia. The next day, so
Fleck testified , he relayed the substance of this conversation
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Goss to the other employees , saying that Goss said he
would never sign a contract with the Union and that the
latter was controlled by the Mafia; he also told employees
that Goss had conditioned his future employment with the
Respondent upon renouncing his affiliation with the Union.
In mid-January, as Young and Grattan were working at
a hospital construction site in Susqueview , Goss came to the
site and asked Grattan to leave so that he could speak to
Young. Grattan went into the next room, but was able to
see and hear the conversation between Goss and Young.
Young testified that Goss had accused him of calling the
Respondent names, to which Young replied that Goss was
correct if he was referring to Young's attempts to organize
the employees . In response , Goss inquired what the Union
had to offer Young that the Respondent could not offer,
and Young replied that the Union might be able to secure
more benefits and higher wages for the employees . There-
upon , Goss took a copy of the union contract from his
pocket and, according to Young and Grattan, stated "some-
day I might have to sign a union agreement , but until then,
I run an open shop. I'll never sign a union agreement unless
they force me to . The Union was Mafia run and they were
people manipulators."
In his brief, counsel for the Respondent terms the testi-
mony of Young and Fleck as incredible , in view of the fact
that they were two of the three charging parties in the 1971
proceeding and, so he argues, if their testimony is believed
it follows that Goss, "with full knowledge of the position
and interest of these men , still smarting from the rebuke of
that prior decision , and knowing full well that any statement
that he might make to them would clearly and unequivo-
cally be used by them against him at any time when such
a statement would be necessary or useful , nonetheless alleg-
edly committed a direct , flagrant and clear violation of the
Act by relating his disinclination to execute an agreement
to them." He continues that by saying that although "any-
thing in this world is possible , it certainly tests one's credi-
bility to think that a man of Mr . Goss' position and
experience would ever fall into such a trap, even if one
assumes he was inclined to make such a statement, which
is, of course, neither the fact nor his present inclination."
Counsel contends that there are two reasons why all the
charges against the Respondent should be dismissed: (1)
because the General Counsel "fully failed to meet his bur-
den of proof to show any violation of the Act, let alone the
ones alleged" and, (2) because of "the stale nature of the
evidence adduced, which not only has no probative value,
but, indeed, was probably improperly received and certain-
ly would be improperly considered at this juncture , in light
of the total testimony received in the case ." However, coun-
sel appears to have overlooked the testimony of Wilkin,
chapter manager of NECA, who testified that at the August
NECA meeting Goss said that he was interested in joining
NECA but wished to be assured that by doing so he would
not be required to sign a contract with the Union, inasmuch
he intended to fight the Union as long as he had money and
strength to do so . Moreover, Foremen Graham and Swisher
testified that shortly before the three discriminatees in the
preceding case returned to work in August 1971, Goss stat-
ed that they should endeavor to "get something" on the
three in order that he might terminate them and support his
action in court . Indeed , according to Swisher, Goss gave
him a notebook in which to record information about the
returned employees and further questioned Swisher as to
how he had voted in the election . Goss testified that at the
NECA meeting in August he did make a statement to the
effect that the Respondent "had lost the election and was
going . . . to go to negotiations ," and that he carried the
union agreement with him and stated that he "couldn't sign
an agreement in that form , because just economically it was
not feasible for him to sign it in that form."
Goss denied that at the July 26 meeting with the employ-
ees he stated that he would never sign a union agreement.
According to him he "had been reprimanded by the court
here that I couldn't or shouldn't say this type of thing."
I am convinced that the record in this case amply demon-
strates that the Respondent did not bargain in good faith
with the Union . In March 1971, the month following the
commencement of organizational activity by the employees,
three were disciminatorily discharged, as I found in the
prior proceeding to which no exceptions were taken. A few
days before the Board election on April 7, the Respondent
held a meeting for the bargaining unit employees at its shop
with management personnel in attendance . Six employees
credibly testified that at that meeting Goss described the
history of the business and the experiences his family had
had with labor organizations . He stated that he preferred to
have a nonunion operation and that the employees ' efforts
to unionize would be meaningless because he would never
sign a contract with the Union because he considered it to
be controlled by the Mafia.
As we have seen , at the May 31 meeting the Union gave
up a number of demands in response to objections raised by
the Respondent . However , Goss again raised the familiar
75-percent requirement of the ABC plan as a stumbling
block and , for the first time , interjected the objection that
while the difference between the relative costs of the two
health and welfare programs was slight , the Respondent
paid only 25 percent of the hourly cost of the ABC plan
whereas it would have to pay the full hourly cost of the
Union's plan. Quite obviously, the Respondent had known
of this factor in the earlier negotiations but had never inter-
jected this objection . When the Union proposed that negoti-
ations continue in regard to the health and welfare items
and inquired whether the Respondent had any objections to
other aspects of the Union 's proposal , counsel for the Re-
spondent requested more time to study the proposal. In
response to the Union's question as to how much time the
Respondent desired, Goss replied, "I can give them a reply
in 15 minutes ." Namadan , realizing that the June 7 date the
parties had agreed upon to resume negotiations was incon-
venient for him, called counsel for the Respondent to sug-
gest the meeting be held on June 12. Counsel for the
Respondent stated he doubted that any subsequent meeting
would occur because Goss "was not going to go along with
... any of the agreements" and that he would let Namadan
know the first of the week as to the stand Respondent would
take. Waters did not telephone Namadan and the latter then
called Waters , who a few days later telephoned Namadan
and stated that Goss definitely would not sign a contract.
In these circumstances , I do not agree with the contention
of counsel for the Respondent , as reflected in his June 7
R. D. GOSS, INC.
letter to Namadan, that an impasse had been reached in the
negotiations. It is not denied that after receiving Waters'
letter Namadan telephoned Waters and stated that the
Union did not feel that an impasse had been reached and
that it desired to continue negotiations at any time or place
in the hope of reaching an agreement . Namadan credibly
testified, and his testimony is not denied, that his conversa-
tion with Waters ended with the latter saying that the Re-
spondent would not sign a labor agreement.
In my opinion, the totality of the facts clearly reveals that
the Respondent was "giving the Union a runaround while
purporting to be meeting with the Union for the purpose of
collective bargaining." N.L.R.B. v. Athens Manufacturing
Company, 161 F.2d 8 (C.A. 5, 1947). It seems clear that the
Respondent attempted to mislead the Union in claiming
that a serious obstacle to reaching an agreement was the
alleged inapplicability of the originally proposed contract to
residential work which, according to the Respondent, com-
prised one-third of its work. Actually, however, only 8.5
percent of the Respondent 's work was of a residential na-
ture . Such misrepresentation , in my view, is an indication of
bad-faith bargaining . Although Respondent led the Union
to believe that it would be willing to sign a residential con-
tract containing a rate of approximately $5 per hour, when
the Union proposed such a rate the Respondent, in its letter
of June 7, asserted that the cost of the contract was still too
high. Moreover, the Respondent made no concessions or
counterproposals, nor did the Respondent make a good-
faith effort to solve the alleged issue regarding the 75-per-
cent ABC enrollment requirement. Executive Vice Presi-
dent Woodrow Moats of ABC testified that the
Respondent could have, as a matter of fact , separated its
employees into two groups , one under the union plan and
the other under the ABC plan.
Considering all the foregoing factors, I conclude and find
that the Respondent has unlawfully refused to bargain with
1179
the Union and that it thereby violated Section 8(a)(5) and
(1) of the Act. I further find that the strike which began in
June was caused and prolonged by the Respondent's unfair
labor practices.
CONCLUSIONS OF LAW
1. The Respondent, R. D. Goss, Inc., is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Lo-
cal Union No. 5, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By coercively interrogating its employees concerning
their union interest and activities, the Respondent violated
Section 8(a)(1) of the Act.
4. By unlawfully refusing to bargain collectively with the
Union, Respondent violated Section 8(a)(5) and (1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
I find that it is necessary that the Respondent be ordered
to cease and desist from the unfair labor practices found
and to take certain affirmative action, including reinstating
all strikers, to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, upon their uncondi-
tional offer to return to work. If necessary to provide jobs
for strikers in the event their unconditional application to
return to work, the Respondent shall discharge any replace-
ment employees and, in addition, pay the strikers backpay
from 5 days after their application to return to work until
they are in fact employed.
[Recommended Order omitted from publication.]