Rescar, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1985

274 N.L.R.B. 1 (N.L.R.B. 1985)

RESCAR , INC, 1
Rescar, Inc. and Brotherhood of Railway Carmen of
,the United States and Canada , AFL-CIO. Case
6-CA-14133
13 February 1985,
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 November 1981 Administrative Law
Judge Thomas A. Ricci issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, the Union filed cross-exceptions and
a brief, and the Respondent filed a brief in response
to the cross-exceptions. i
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The undisputed evidence shows that on 29 Octo-
ber 1979 the Union became the certified bargaining
representative of the Respondent's employees who
service, repair, and condition railroad freight cars
at Du Bois, Pennsylvania. The Respondent met
with the Union on 14 occasions between 10 De-
cember 1979 and 27 March 1980 to negotiate a col-
lective-bargaining agreement. The parties agreed to
confine their discussions to noneconomic items
during their initial series of meetings. Their negoti-
ations over noneconomic issues became protracted
primarily because of the lack of premeeting prepa-
ration on the part of the Union and its failure to
submit promised counterproposals on a number of
issues. As a consequence some meetings had to be
adjourned early. In February, parties began negoti-
ations over economic issues as well, and in March
the Respondent sought the assistance of a Federal
mediator to speed up negotiations. By late March
the parties were in agreement on a number of non-
economic issues, including the major portion of the
proposed management-rights clause and the griev-
ance-arbitration procedure.
On 1 April, while a number of noneconomic
issues were still in dispute, the Respondent gave
written notice to the Union and employees that it
was putting into effect five noneconomic bargain-
ing proposals which changed employee seniority
rights, created a safety committee with authority to
make work rules, and established time periods
within which employees could withdraw from
i The Union moved to strike portions of the Respondent's answering
brief on the ground that it goes beyond the scope of the Union's cross-
exceptions The Respondent filed an opposition thereto As the cross-ex-
ceptions broadly seek "additional clarification" of the judge's "surface
bargaining" finding and the answering brief is responsive to that issue, we
deny the motion to strike
union membership. The employees walked off the
job from 3 to 15 April and filed unfair labor prac-
tice charges which led to the issuance of a com-
plaint.2 Thereafter, by letter of 8 May, the Re-
spondent rescinded the unilateral changes, resumed
bargaining on economic issues, and on 12 June
made a final contract offer.3 The union member-
ship rejected the Respondent's contract offer on 8
July and negotiations were suspended indefinitely.
Prior to the scheduled hearing on the unfair
labor practice charges, the parties on 23 September
executed a settlement agreement with a nonadmis-
sion clause which resolved all existing charges, and
the agreement was approved by the presiding ad-
ministrative law judge. The parties also agreed to
resume bargaining and to extend the certification
year through December 1980. At the reopened ne-
gotiations on 13 and 14 October, the parties agreed
to most of the noneconomic proposals, including
the remainder of the management-rights clause, and
the Union communicated its willingness to accept
the Respondent's economic package which it had
previously rejected on 8 July. The Respondent's at-
torney responded that the Respondent could not
guarantee what its new proposal would be because
the economic situation was much different from
what it had been in June, that business had
changed for the worse and had not picked up since
summer, and that the employees' strike had caused
some permanent business losses.4 Thereafter, on 6
November, the Respondent proffered a reduced
economic package which, inter alia, eliminated any
wage increase for the first year of the contract, but
retained the second- and third-year increases. The
Union accepted the economic package at the next
and final negotiating meeting on 15 December,
which left unresolved only union-security, dues-
checkoff, and no-strike provisions. The parties
agreed to meet again in January, but the Respond-
ent sent a letter on 6 January advising the Union
that a decertification petition had been filed and
that it would not bargain until that question con-
cerning representation was resolved.5
2 The complaint in Case 6-CA-13235 alleged that the Respondent
made unilateral changes in terms and conditions of employment prior to
impasse and refused to reinstate certain "strikers" whom it had replaced
The Union characterized its walkout as a protest over unsafe working
conditions rather than a strike
3 Prior to its final contract offer, the Respondent's vice president Clark
informed its attorney-negotiator by letter of 7 May that the Respondent's
volume of work had diminished because of conditions in the economy
and the railroad industry and that the Respondent also attributed loss of
some work to the strike by employees
4 At the hearing the Respondent's attorney acknowledged that on 14
October he believed he could exact more favorable economic terms be-
cause of the Union's weakened position
5 Member Hunter notes that the Respondent's refusal to bargain in this
regard occurred poor to the Board 's issuance of Dresser Industries, 264
NLRB 1088, 1089 (1982) In Dresser the Board held that the decision is
not to be applied retroactively
274 NLRB No. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The judge found from the totality of the Re-
spondent's conduct in negotiations that it had en-
gaged in surface bargaining in violation of Section
8(a)(5). He noted that the Respondent tied broad
management-rights and no-strike clauses inflexibly
with a severely limited grievance-arbitration provi-
sion , characterized them as proposals which no
self-respecting union would accept, and concluded
that they evidenced the Respondent's disposition
not to reach an agreement with the Union. He also
relied on the Respondent's insistence on withhold-
ing the established profit-sharing benefit from em-
ployees covered by a collective-bargaining agree-
ment, its withdrawal of its economic proposals and
substitution of regressive terms in October in the
face of the Union's expressed willingness to agree
to the earlier proposal, and the Respondent's stall-
ing tactics and shifting bargaining positions. The
judge found background evidence of the Respond-
ent's motivation in its unilateral changes in terms
and conditions of employment during bargaining
on 1 April and in credited testimony of an early
morning telephone conversation in March during
which an inebriated Vice President Clark told em-
ployee negotiating committeeman Robert Spencer,
"We don't have any intention of signing a con-
tract." We disagree for the following reasons.
First, the judge incorrectly found that the Re-
spondent proposed the three contract provisions as
a package in order to retain full control over em-
ployee terms and conditions. The facts show that
two of the clauses were agreed upon separately
very early in the negotiations while the third was
still in dispute when the bargaining had ended.
Further, the Supreme Court has held that it is not
a violation for an employer to bargain for provi-
sions of this nature any more than it would be for a
union to bargain for provisions favorable to it.
NLRB v. American National Insurance Co., 343
U.S. 395, 407-408 (1952). Moreover, it is not the
Board's role to sit in judgment of the substantive
terms of bargaining, but rather to oversee the proc-
ess to ascertain that the parties are making a sin-
cere effort to reach agreement. Id.6 It is clear that
the Respondent, unlike the Union, was prepared to
bargain, meet promptly, and make counterpropos-
als throughout negotiations and even sought assist-
ance from a Federal mediator.
With respect to the Respondent's refusal to
extend its multiplant profit-sharing plan to a collec-
tive-bargaining agreement, it did so with the agree-
ment of the Union in return for other general bene-
fit increases and agreeing to reopen the instant
agreement and bargain over a substitute pension
B See the summary of legal principles in our recent decision in Atlanta
Hilton & Tower, 271 NLRB 1600 (1984)
plan. This is the essence of collective bargaining
and is not a violation of the bargaining obligation.
Likewise, the withdrawal and substitution of al-
leged regressive economic terms occurred in the
context of changes both in the economy of the in-
dustry and the relative strengths of the participants.
It is not unlawful for a party to take advantage of a
shift in strength in order to seek more favorable
contract terms.? In sum, we find no evidence that
the Respondent has failed to bargain in good faith,
as alleged in the complaint. In so finding, we note
that, while presettlement conduct and conduct out-
side the 10(b) period is relevant as shedding light
on conduct within Section 10(b), such conduct
cannot itself establish a violation of the Act.8 Ac-
cordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
7 Hickinbotham Bros, 254 NLRB 96 (1981), Atlas Metal Parts Co. v
NLRB, 660 F 2d 304 (7th Cir 1981) See also NLRB v Advanced Business
Forms Corp, 474 F 2d 457, 467 (2d Cir 1973)
8 The charge was filed on 19 December 1980, the complaint alleges
that the Respondent failed to bargain in good faith commencing on 23
September, the date the parties executed the settlement agreement Ac-
cordingly, events occurnng pnor to 19 June 1980 and prior to the settle-
ment agreement may only shed light on subsequent events and may not
themselves constitute unfair labor practices Machinists Local 1424 (Bryan
M f g ) v NLRB, 362 U S 411, 416 (1960) And, as the Board stated in
Interstate Paper Supply Co, 251 NLRB 1423, 1424 fn 9 (1980) "It is well
established that an unfair labor practice will not be found based on pre-
settlement conduct unless there has been a failure to comply with the set-
tlement agreement , or subsequent unfair labor practices have been com-
mitted " Neither has occurred in the instant case
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge . A hear-
ing in this proceeding was held on September 2, 1981, at
Du Bois, Pennsylvania, on complaint of the General
Counsel against Rescar , Inc. (the Respondent or the
Company) The complaint was issued on February 25,
1981, on a charge filed on December 19, 1980, by Broth-
erhood of Railway Carmen of the United States and
Canada, AFL-CIO (the Union or the Charging Party).
The issue of the case is whether the Respondent refused
to bargain with the Union in violation of Section 8(a)(5)
of the Act. Briefs were filed after the close of the hear-
ing by all parties
On the entire record and from my observation of the
witnesses , I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Rescar, Inc., a Texas corporation, has an office and
place of business in Du Bois, Pennsylvania, where it is
engaged in the nonretail service, repair, and conditioning
of railroad freight cars. During the 12-month period
RESCAR, INC
before issuance of the complaint, in the course of its busi-
ness, the Respondent purchased and received at its Du
Bois facility products, goods, and materials valued in
excess of $50,000 directly from out-of-state sources. I
find that the Respondent is engaged in commerce within
the meaning of the Act, and that it will effectuate the
policies of the Act to exercise jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This is a refusal-to-bargain case. On the basis of a
Board-conducted election, on October 29, 1979, the
Union was certified as bargaining agent for the Respond-
ent's approximately 30 employees.' There followed,
during the next 14 months, no less than 21 meetings be-
tween company representatives and union spokesmen A
great number of written, as well as oral, proposals for a
collective-bargaining agreement were exchanged. There
was much talk and written correspondence, unending ar-
gument back and forth on various clauses each party de-
manded From time to time, agreement was reached on
some of the matters, rather minor ones, with the greater
number of the over 45 items discussed always hanging.
A number of times, as the time went on the Company
reversed its position on this or that clause previously
submitted The result was that the number of questions
separating the parties really remained very substantial
throughout, even though some shifted from the agreed-
upon list to the disputed list Some major ones-essen-
tially those which would have substantially stifled the
Union's voice during any contract period-persisted to
the last. Finally, on December 19, 1980, 4 days after the
last meeting between the parties, the Union, frustrated in
its attempt to achieve some kind of workable agreement,
filed its charge in this case The essential allegation of
the resultant complaint is that the Respondent refused to
bargain in good faith, that it never intended to accord
the Union the recognition which the statute commands.
In defense the Company points to the fact it always
met with union agents when asked to do so, consid-
ered-that is, talked about-every contractual proposal
received, offered its own comprehensive draft of an
agreement, discussed every subject matter that arose
during the many meetings, and never failed to articulate
its reasons for disagreement, even when it changed posi-
tion from time to time. With this-the external format of
normal collective bargaining-it is argued that the Gen-
eral Counsel has failed to prove a prima facie case of bad
i There is no issue concerning the appropriateness of the employee
unit for which collective bargaining was to take place, nor as to the
Union's statutory authority to speak on the employees' behalf Accord-
ingly, I find that all production and maintenance employees including
plant clerical employees employed by the Respondent at its Du Bois,
Pennsylvania facility, excluding office clerical employees, confidential
employees, and guards, professional employees, and supervisors as de-
fined in the Act, constitute a unit appropriate within the meaning of Sec
9(b) of the Act I also find that from October 29, 1979, and thereafter the
Union was and still remains today the representative of a majority of the
employees in that unit so described
3
faith, that the statute calls for no more on the part of an
employer In plain language, the defense rests primarily
upon the one phrase in Section 8(d) of the Act which
says the duty to bargain "does not compel either party to
agree to a proposal or to require the making of a conces-
sion."
I view this case as presenting an inference question. Is
it true, as the complaint alleges, that throughout the
events the Respondent was determined never to agree
upon the terms of any complete contract with the
Union? An important aspect of all so-called surface bar-
gaining cases such as this must be made clear at the
outset. Rejection of the collective-bargaining principle,
the cardinal offense alleged in this complaint, can only
be found, if in fact it existed, upon fair consideration of
each and every pertinent fact of record Pittsburgh-Des
Moines Steel Co., 251 NLRB 125 (1980). The question is
one of motivation, comparable to hidden unlawful pur-
pose in the obstensibly justifiable discharge of an individ-
ual employee For this reason, no two cases are alike and
none can be determinative precedent for the next. As the
Supreme Court said, good faith "can have meaning only
in its application to the particular facts of a particular
case." NLRB v. American National Insurance Co., 343
U.S. 395 (1952). It is the total picture shown by the evi-
dence that either supports the allegation or falls short of
that quantum of proof sufficient to satisfy the affirmative
burden resting upon the General Counsel. There is no
such thing as a particular phrase uttered, a special con-
tract clause proposed, or even one demand insisted upon
to impasse that can, or ought to be, labeled illegal per se.
Similarly, no dispute over a pinpointed contract propos-
al, no refusal to yield on a particular item, however
proper were it considered out of context, or in isolation,
can be ignored and removed from any consideration As
stated, the statute says clearly enough that neither party
need yield its position on any lawful proposal But "one
must recognize as well that bad faith is prohibited
though done with sophistication and finesse. . . . Conse-
quently, to sit at a bargaining table, or . . to make con-
cessions here and there, could be the very means by
which to conceal a purposeful strategy to make bargain-
ing futile or fail " NLRB v. Herman Sausage Co., 275
F 2d 229 (5th Cir 1960).
The Respondent makes much of the fact that during
the hearing, at least, the General Counsel virtually con-
ceded no single act of the Company throughout the
entire year 1980 could be found to have been an unfair
labor practice apart from anything else The Respondent
asks: How can an accumulation of nothings conceivably
amount to something9 The answer lies precisely in the
Board precedent which finds illegal objective-a hidden
determination not to bargain in good faith-proved by
the accumulation of indicia, or oblique revelations of the
employer's devious technique to evade the statutory
mandate. Cf. General Athletic Products, 227 NLRB 1565
(1977).
There is another side to the coin. In the complaint the
General Counsel says in haec verba that by "proposing
and insisting upon . . . a reduced starting wage rate" the
Company violated Section 8(a)(5). The complaint also
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reads that "[b]y the acts" of "rescinding agreements pre-
viously reached [and then lists 11 items discussed
throughout the bargaining sessions]" the Company vio-
lated the statute. Since when has it been an unfair labor
practice for an employer to argue in favor of a reduction
in pay? If a union can justly demand a raise, why cannot
an employer propose that the employees work for less?
Does the complaint mean that the Company may pro-
pose a lesser pay but may not "insist" upon it? How
many times-at successive meetings-does proposal
become insistence? There is no evidence at all of im-
passe. What the complaint is really intended to say, and
the General Counsel so makes clear on brief, is that by
the totality of the Respondent's conduct its bad faith is
proved But it is this sort of pleading, ambivalent double-
talk, that invites and encourages the superficially con-
vincing defense that nothing illegal happened at all. If
the purpose of these proceedings is to effectuate the stat-
utory objectives, it would be better served if the com-
plaint were written in plain and unequivocal language
And because the essence of the complaint allegation is
pervasive bad faith on the part of a respondent, I find no
merit in its contention that anything that was said and
done more than 6 months before the filing of the charge
must be overlooked and ignored. Anything and every-
thing that happened in connection with the apparent ne-
gotiations that went on sheds a light upon the true inten-
tions of the parties. The 6-month limitation applies only
to explicit unfair labor practice findings as to specific
acts, but, as already explained, this is not such a case.
Crystal Springs Shirt Corp, 229 NLRB 4 (1977).
In my considered judgment this record in its entirety
requires a finding that the Respondent refused to bargain
in good faith and thereby violated Section 8(a)(5) of the
Act The method used to ensure eventual frustration of
the collective-bargaining process is best described as a
stalling tactic, a constant shifting of positions so as to
continually revert the parties back to their initial posture
as the months went by It is now 2 years since the em-
ployees voted in secret ballot to be represented by the
Union At the hearing the Respondent offered 55 exhibits
into evidence, these are the written proposals made by
each party from time to time, letters across the table re-
lating to modification of items without end, correspond-
ence setting and changing meeting dates, listings of
agreed-upon matters as they stood at certain dates and
changed at later meetings, etc. The General Counsel
agreed, of course, as to the authenticity of these docu-
ments, they are all regular documents of one kind or an-
other They are relevant, for, as already explained, in a
case of this kind every jot and tittle of what was said and
done must be considered
This does not mean, however, that every single
matter, no matter how slight its significance, must be re-
peated, discussed, analyzed, and separately evaluated in
this decision The exhibits total 318 sheets, twice the
length of the transcript of oral testimony. The only wit-
ness to the negotiations at the hearing was the lawyer,
Cohen, who did most of the talking for the Company at
17 of the 21 meetings . With constant reference to the 55
exhibits, plus his notes of the conferences, Cohen spoke
of the reasons the Respondent made the demands it
made, rejected the union proposals it did not like, and
reneged on agreements previously reached. What his tes-
timony really amounts to is an argumentative justifica-
tion, assertedly on purely economic grounds, of every-
thing the Respondent did throughout the entire year
1980. Were I to comment now on everything he said,
plus the contents of all the exhibits put in evidence, it
would not only take weeks to write this report, but the
decision would be virtually a reprinting of the transcript
and exhibits. I believe such a procedure would only
serve all the more to further the prohibited objective of
extending without end the collective-bargaining process
to the point where time alone would defeat it altogether.
The longer this decision, the longer its time before Board
review and acceptance. All that would then be followed
by an additional year (more?) before circuit court en-
forcement. And in the end, all that would result is an
order to bargain, to sit down, and start talking all over
again . Four years, maybe, after the employees expressed
their desire to be represented by the Union; one must
ask: Of what value is such an order in the effectuation of
the basic policy of this statute? Decision here, therefore,
will rest upon all pertinent matters, those set out below
and those too minor to warrant separate discussion.
1. On April 1, 1980, after about 14 meetings through-
out which a great variety of proposals had been dis-
cussed 15 of them still remained in dispute. Nevertheless,
on that day the Respondent informed all its employees,
in writing, that it was then and there putting in effect
five of the "proposals" which it had made to the Union
but which the Union had not yet agreed to. The state-
ment reads that the Company was doing this "when
there is a bargaining impasse." One change made in the
conditions of employment altered the seniority rights of
the employees in four detailed situations. Another
changed the established system of recall. A third an-
nounced establishment of a safety committee and said
anyone failing to comply with its rules could be disci-
plined.
There was no impasse at that moment in the bargain-
ing. Impasse means when the parties to the collective-
bargaining process, having failed to agree upon a total
package resolving all their disgareements, have reached a
point where further talking is futile. It is then, and only
then, that the employer is free to make those changes in
existing conditions of employment which the union ada-
mantly and with total finality simply refused to accept.
These parties were still talking when this happened, and,
indeed, had a number of meetings thereafter. Economic
issues had not even been introduced as yet. Throughout
the hearing, and throughout its brief, the Respondent de-
fends repeated shifting of positions on one item after an-
other on the ground that bargaining conceives of a total
package, with each item bearing a relationship to every
other one At times it withdrew a concession previously
made, at others it changed a demand upward, always on
the ground that all issues focus into a single basic pic-
ture. But in defense of the direct unilateral action it took
in April, the Respondent argues the other way around.
Now it says that you look at each item detailed-in this
case over 45 of them-and if the union objects too
RESCAR, INC
strongly about that one, or refuses to yield on it while
still considering what position to take on the many other
related items, you find impasse as to that one item and
remove it from the bargaining process, with the employ-
er free to ignore the union in its dealings with the em-
ployees. To state the proposition is to defeat it.
I view that April 1 conduct as revealing an intent to
make a mockery of the seeming collective bargaining
that was going on A look at the fourth "proposal" that
the Company said it was implementimg will reveal even
more It reads as follows.
Our final proposal which provides that all employ-
ees who are members of the Union at the time a
contract becomes effective shall then have 30 days
to withdraw in writing from the Union. If they do
not withdraw during this period, they shall have to
remain a member of the Union in good standing for
the duration of the contract as a condition of em-
ployment.
At that moment, this "proposal," this "implementa-
tion" of something or other, had nothing to do with con-
ditions of enployment Absent a union contract, there is
no such thing as union membership requirement, 30 days
to get in or out, escape clause, etc In the teeth of its
show of bargaining, what this written statement told the
employees, who as a majority voted to be represented by
the Union, was that no matter what their union tried, the
Company would see to it that their right to reject the
Union, or to change their minds about collective bargain-
ing, would be assured them by the Company. What
clearer indication--if not proof-of union animus, or bad
faith in bargaining , however it be phrased, can there be
than this?
Three days after the notice was distributed the em-
ployees went on strike Twelve days later they returned
supplicantly The Company took most of them back. At
the hearing the Respondent objected to any evidence
about this April 1 notice to the employees, or about new
conditions it imposed upon the employees, on the ground
that an earlier Labor Board charge accusing the Compa-
ny of wrongdoing had been settled informally in Septem-
ber 1980. The Company does not reiterate this position
in its brief If what the Respondent did then-while
meeting with the bargaining agent-is an indication of
continuing disregard of its statutory duty to act in good
faith, that conduct is as much cumulative evidence of un-
lawful intent as anything else it did throughout the year
1980 from first to last. Cf. San Isabel Electric, 225 NLRB
1073 (1976).
2. The parties started to meet again after the interven-
ing unfair labor practice proceeding was cleared out of
the way with no findings either way. One of the benefits
these employees, as well as all others of the Respondent
at its other plants, long enjoyed and are still enjoying
today is an established profit-sharing plan, to which the
Company makes contributions to the credit of the em-
ployees. From the very first meetings , the Respondent
held firm, and never gave up on the idea, it would in no
circumstances continue that plan for these employees
under a union contract It offered to talk about some-
5
thing separate for them with no specifications When an
employer makes clear throughout so many meetings that
an economic benefit, currently being paid, will absolutely
be lost under any contract it might agree to, a picture of
planned hurt to the employees, or of a rationally hoped
for objective of rejection by the Union, is strongly indi-
cated. See E. I. du Pont & Co., 203 NLRB 535 (1973)
The statement by the Company's witness at the hearing
that continuation of that benefit would have been "anti-
thetical to a union movement" hardly serves to lessen
the implication, more fully warranted, that the very pur-
pose was to remove the Union from the picture And
again, it is one thing when, in a total picture, insistence
upon curtailment of a benefit or two is offset by other
proposals which tend to balance the whole, so that it can
be said there is an element of fairness But it is something
else when, as here, and as will appear below, the persist-
ent withdrawal of established benefits is coupled with
other proposals which bring the contract as a whole
very close to what no self-respecting union would
accept Cf. NLRB v. Reed & Prince Mfg. Co , 205 F 2d
131 (1st Cir. 1953) More recently-a month ago-an-
other circuit court found bad faith in this sort of bargain-
ing where "the entire spectrum of proposals put forward
by a party is so consistently and predictably unpalatable
to the other party that the proposer should know agree-
ment is impossible." NLRB v. Mar-Len Cabinets, 659
F.2d 995 (1981)
3. During the several meetings in May and June that
followed abandonment of the strike by the employees,
the Union capitulated on a considerable number of pro-
posals, as was to be expected. Withal, a composite read-
ing of three major company proposals which the Union
continued to resist reveals, more than anything else, that
the Respondent's real objective was to retain a free hand
to run its business without regard to the Union; these
clauses related to management rights, no strike, and arbi-
tration. Viewed together, as company counsel kept
changing the language he wanted in these clauses as time
went on, they would effectively have removed the
Union from the picture had it signed what was demand-
ed by October and December.
In fact, these three major, so-called noneconomic
issues eventually became the principal bones of conten-
tion leading to this entire proceeding There came a time,
towards the very end, after all the shifting of position by
the Company, including downgrading of economic mat-
ters previously agreed to, when the Union agreed to
accept almost everything as the Company insisted-
except for these three items now being explained. If any
particular insistence by the Company can be said to have
finally broken the camel's back, it is these three proposed
contract clauses.
The no-strike clause demanded was very precise and
all inclusive-the Union could in absolutely no event or
circumstances call a strike or condone any work stop-
page by employees. Very significantly, the prohibition
was expressly to apply in case of "any dispute involving
the interpretation or application of this agreement."
Unless some alternative, reasonable route is available to
the Union in case the employer ignores the comprehen-
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
save contract , such a complete restriction upon its power
to protest can be said to emasculate it throughout the
period of the agreement.
In this case , the concomitant proposal labeled "griev-
ance and arbitration procedure " was artfully misleading
It started by saying the Company would consider griev-
ances brought by the Union "should any dispute arise
. .. as to the meaning or application of the provisions of
this agreement ." But after minutely establishing the pre-
liminary two or three grievance meeting steps to precede
the arbitration to follow, the entire area of possible dis-
agreement , or violation of the contract terms by the Em-
ployer , is rewritten, and limited to strictly "a grievance
involving discipline and/or discharge ." This language ex-
pressly reduced the proposal to an offer that the Union
could complain about any violation of the contract terms
by the Company, that it would be heard by the supervi-
sors, but that if the Union did not like management's
final position , the matter would end right there, except
for the sole situation where a man might have been fired
or disciplined-meaning some lesser form of discrimina-
tion in employment . Restated. To the extent that this
proposal- insisted upon throughout by the Respondent-
gave any assurance that the Company would have to
abide by the terms of any contract , it was not an arbitra-
tion clause at all
If a union cannot strike to force the employer to
comply with a regularly signed collective-bargaining
agreement , and if it cannot turn to a neutral outsider to
seek help should the employer choose to ignore its writ-
ten contract , in reality it can be said the union has no
contract of value at all. It could sue, in the regular
courts of law, I suppose , to seek redress for a contract
violation , but this is not what unions exist for Litigation
without end can hardly be called the honest purpose of
the collective bargaining mandated by this statute.
4. Just as the no-strike and arbitration (9) clauses must
be viewed together for correct appraisal of this com-
plaint, so, too, both of them must also be seen in the
light of the so-called management -rights clause, which
was always inflexibly tied to them. The total effect of its
language gave the Company the right to run its business
as though the Union did not exist ; it is best appreciated
by reading the proposal itself . There was talk about very
small phrases here and there; the record makes it impos-
sible, and of little value anyway, to pinpoint every
phrase uttered over 21 meetings In reality , the following
is what the Respondent insisted upon-
Section 9.1. Except as limited by the expressed pro-
visions of this Agreement , the Union recognizes
that the Company shall continue to have and retain
the sole and exclusive right and authority to admin-
ister and/or manage the Company 's business, to ex-
clusively direct the working force and the employ-
ees covered hereby, and in addition to other func-
tions and responsibilities not specifically mentioned
in this Agreement , and therefore , without attempt-
ing to list herein all of these management rights, but
prominent among such rights, the right and author-
ity of the Company shall include : the right to lease
or sublease , the right to expand , sell, move, transfer
and/or terminate all or part of its operations; the
right to establish and/or change hours of work
and/or work schedules ; the right to select , hire, and
lay off employees and/or to determine the size and
composition of the Company 's work force ; the es-
tablishment and determination of the required jobs
in the plant including the right to combine , elimi-
nate or create new jobs and the determination of
reasonable levels of productivity, quality and effi-
ciency; the right to reward employees by promotion
or by other means, the right to discipline , suspend
or discharge employees for just cause, the right to
change or introduce any new or improved methods,
materials , equipment or facilities ; the right to deter-
mine the methods , techniques and types of work to
be performed or work to be subcontracted, the de-
termination of the products to be manufactured or
subcontracted ; and the right to make and enforce
such rules and regulations as the Company may
consider necessary or desirable for the operation of
this business . These management rights are not all
inclusive , but indicate the type of matters which
belong to and are inherent to the Company The
Company not exercising rights reserved to it or its
exercising them in a particular way, shall not be
deemed a waiver of its rights.
I do not think it necessary , or useful , to speak at
length on why such broad liberty , granted to the Em-
ployer, and coupled with a tying of the Union 's hands
throughout a contract period , effectively removes the
bargaining agent as a voice on behalf of the employees
Joined with the simultaneously demanded ironclad no-
strike clause and the euphemistically styled, but meaning-
less, "arbitration" proposals, the contract the Respondent
insisted upon for a whole year really falls in the area
which a circuit court described as what a "self-respect-
ing union" could never accept. Actually, it is not a
matter of respectability , but rather of an employer going
through the motions of bargaining with the Union, but
not really bargaining with it at all
5. By the time the parties reached their 19th and 20th
meetings on October 13 and 14, the Union yielded on a
considerable number of items-almost all of a noneco-
nomic nature. By this time the Company was pressing
additional demands, mostly in the form of modifications
of proposals previously advanced. The no-strike clause
was changed to deprive any employee who might violate
its broad prohibitions of "any recourse under the griev-
ance and arbitration provisions ." It will be recalled that
the "grievance and arbitration" proposal , even as it stood
before this change, permitted arbitration only in the
event of discipline or discharge. An article entitled
"Union Security" was proposed It said nothing about
union membership being a condition of employment for
any employee hired after the execution of the contract;
instead it detailed various withdrawal provisions for em-
ployees who might at times choose to be members, in-
cluding any new hires who might happen to be union
members when hired. Again , the label attached to this
article was essentially a misnomer.
RESCAR, INC
In any event, at these two meetings in October there
was a considerable area of concession by the Union, if
not capitulation, as it says in its brief. And then, when
the parties turned to economics as something that had to
be dealt with if the matter was to be settled at all, the
company spokesman simply announced that the Compa-
ny was going to reassess a number of its economic pro-
posals. In the words of its witness as to that meeting he
told the union agents, "[W]e're not putting back on the
table the same proposal we had the last time, our situa-
tion now is different. We are in a much different situa-
tion and we're going to have to reassess our whole eco-
nomic posture and respond to you and to have no guar-
antee that any of the same items that we previously pro-
posed may or may not be on the table." The company
spokesman said nothing that day about how, or to what
extent, the many matters it had been willing to agree to
in the past were to be downgraded
By letter dated November 6 the Company then ad-
vised the Union it was altering five of its longstanding
economic proposals, lessening each of them-washup
time, holidays, group insurance, retirement benefit contri-
butions, and wages. The most significant withdrawal of
its previous offers was to take back entirely a 35-cent-
per-hour increase in pay which up to that day was to
take effect with execution of any contract If there is one
thing that virtually must set collective-bargaining negoti-
ations, after over 20 meetings, back to where they start-
ed, it is for the employer to take back all the raise in pay
it had on the table all the time. After all, money for
work is what this is all about. The Respondent's conten-
tion, in defense, that such a reversal of position was dic-
tated by economic stress, especially the short-lived strike
of 7 months earlier, is unconvincing. Had that really
been the true cause, the Company would have found oc-
casion to voice its concern and hesitancy about any raise
much sooner But I think its witness' further testimony
serves more to remove "economics" as its real reason.
Asked at the end of his testimony what "perception" of
the situation had inspired these changes in economic
offers in October, the company lawyer answered:
The Union was in a much weaker position. I had to
dictate my bargaining strategy . . . The Union
had not called a strike when it rejected the offer, it
waited for months before asking for a resumption of
bargaining, it had no employees on the committee
this time, Mr. Spencer was no longer in the employ
of the company and Mr. Pisarick was on the Laid-
law list, he wasn't working, there was a weakened
Union
Q. And when the Union has no strength it's
weaker.
THE WITNESS. I can make a better deal
If this position-admission of intent to take advantage
of a weakened union-were taken out of context, as does
the Company's brief in its citation of authority, it would
appear in a certain light. Viewed together with the
nature of so many others of this Respondent's demands
pressed without compromise over so long a period, it
very much indicates instead a fixed determination to
7
avoid signing any contract with this Union Continental
Insurance Co., 204 NLRB 1013 (1973).
6. If there remains any doubt as to what was in the
mind of management-what its hidden motive really
was-it is literally resolved out of the mouth of its Vice
President Robert Clark He telephoned Robert Spencer,
the selected chairman of the employee bargaining com-
mittee, in March 1980, after at least 12 or 13 meetings
had taken place. He called at 2 or 3 in the morning, from
a bar, where he was sitting and drinking with some
union members. From Spencer's testimony: "[M]y wife
answered the phone . . she woke me up . so I got
the phone and it was Bob Clark . . and he said that he
had some of the men of the union there and he said that
they were dissatisfied he said that I was causing a lot of
disturbance and he said that he would appreciate it if I
would withdraw from the company, leave the company,
get out of it. He said, `you don't need Rescar,' he says,
`why don't you leave.' I said, `I'd rather talk to the men,'
I said, `I was voted into the job . . . .' He says, 'I'll talk
for the men,' he says, `they don't want you,' he says,
"why don't you leave?' . . . He said, `well, we can keep
you locked in there till you quit' . . . I said, `That might
not solve anything, me quitting.' I said, `Why don't you
sign the contract and then maybe things would go back
to normal.' He said, `We don't have any intention of
signing a contract."'
Called as the last witness on direct examination Clark
answered only two questions:
Q During the course of that conversation, did
you say to Mr Spencer in words or in substance
that the Company would never sign a contract with
the Union?
A. Not in those words, no sir.
Q. To the best of your recollection what, if any-
thing, did you say with respect to a contract?
A. I meant that we would never sign a contract
as the Union had presented to us.
This is not even a real contradiction of Spencer's testi-
mony. The question was not to state retroactively what
the witness had in mind months earlier, but only what
did he say. The fact that the vice president may have
been "inebriated" at that time of night, as he said, does
not change the facts at all. He was drinking with previ-
ously prounion employees when he spoke to Spencer on
the phone A day or two later he telephoned Spencer
again to tell the committeeman it was an "asinine thing"
for him to have made the night call. Shortly thereafter
came the strike by the employees. Spencer joined in, and
never returned to work
It is true that wine loosens the tongue. And in the
sense that Clark spilled the beans, as it were, as to his
bargaining strategy, he did make a mistake. But nothing
will alter the fact that nothing ever comes out of a man's
mouth except what is in his mind. I accept, of course,
Spencer's precise recollection of Clark's words. In saying
the Respondent would never sign a contract with the
Union, Clark gave the best evidence supporting the es-
sential allegation of the complaint. In vino veritas!
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that by refusing to bargain with the Union in
good faith throughout the year 1980 the Respondent vio-
lated Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above , occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate , and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in an un-
lawful refusal to bargain with the Union in good faith, I
shall recommend that it be ordered to do so upon re-
quest and to cease and desist from further such unfair
labor practices in the future In the light of the nature of
the unfair labor practices found on this record, I shall
also order that the Respondent cease and desist from in
any other manner interfering with the rights of its em-
ployees to enjoy the statutory guarantees of self-organi-
zation.
CONCLUSIONS OF LAW
1 By refusing to bargain with Brotherhood of Rail-
way Carmen of the United States and Canada, AFL-
CIO in good faith , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and ( 1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
pactices within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]