Roman Iron Works, Inc.

National Labor Relations Board - Board Decisions

May 20, 1985

275 N.L.R.B. 449 (N.L.R.B. 1985)

.ROMAN IRON WORKS
Roman Iron Works , Inc. and Shopmen 's Local
Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO.'Case 29-CA-10583
20 May 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 3 January 1985 Administrative Law Judge
Raymond P. Green issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief, exceptions, and a supporting brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings,' and' conclusions2 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Roman Iron
Works, Inc., Greenvale, New York, its officers,
agents, successors, and assigns , shall take the action
set forth in the Order.
i The General Counsel has excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for 're-
versing the findings
2 In affirming the judge's conclusions, Chairman Dotson and Member
Hunter find it unnecessary to rely on Stone Boat Yard, 264 NLRB ;981
(1982), enfd 715 F 2d 441 (9th Cir 1983)
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Brooklyn, New York, on Feb-
ruary 22 and 23, 1984. The charge in this proceeding was
filed on July 8, 1983, and a complaint was issued on Oc-
tober 31, 1983. In substance, the complaint alleges that:
(1) the Respondent since at least February 8, 1983, has
bargained in bad faith with no intention of reaching an
agreement with the Union; and (2) that at various times
during the course of the negotiations the Respondent
has, without notice to or bargaining with the Union,
given unilateral wage increases to its employees.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses and _
after reviewing the briefs of counsel, I make the follow-
ing
FINDINGS AND CONCLUSIONS
. I. JURISDICTION
449
It is agreed by all parties that Roman Iron Works, Inc.
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. It also is agreed
that the Union is a labor' organization within the meaning
of Section 2(5) of the Act.
II. BACKGROUND
This case, and a series of other cases tried before me,'
has a history of litigation, the scope of which can rarely
be matched in labor law history. Although quite lengthy
to describe, the salient points of that history are neces-
sary to set forth at this point.
For a period of time prior to 1975, Roman had main-
tained a collective-bargaining relationship with the
Union, initially on an independent as opposed to multi-
employer basis. (Before 1975, the Union also bargained
with an employer association called the Allied Building
Metal Industries, Inc.) As a result, Roman and other in-
dependent companies . which bargained with the Union
came to have a history of executing a series of successive
contracts which basically were referred to as the stand-
ard independent contract. Over a period of time there
evolved a degree of difference between the standard in-
dependent contracts and the Allied contracts.
In early 1975 Roman along with other companies
which were not members of the Allied Building Metal
Industries, Inc. (the Allied Association), decided to form
their own multiemployer association called the Independ-
ent Association of Steel Fabricators. One of the new As-
sociation 's goals was to achieve parity with the contract
held by the Allied Association.
Bargaining between the Union and the Independent
Association commenced 'on June 10, 1975. No contract
having been reached by June 30, 1975, the Union com-
menced a strike on July 1, 1985. From July 1 to late
August there was a hiatus in negotiations , albeit one of
the Independent Association's members signed a separate
contract with the Union. (That action provoked some
litigation which is described in NLRB v. Independent
Assn. of Steel Fabricators, 582 F.2d 135 (2d Cir. 1978).)
In late August and through October 1975, negotiations
were held between the Union and the Independent Asso-
ciation. However, as both sides stuck to their guns on a
number of issues, not much progress was made. In Octo-
ber the spokesman of the Association advised Local 455
that another union was interested in organizing the em-
ployees involved. Subsequently, between November 1975
and January 1976, some of the employer-members of the
Independent Association entered into contracts with
Local 810 International Brotherhood of Teamsters, an
action later held to be unlawful by the Board and the
i On various days in March, April, June, and September 1984 I heard
a number of other cases where the facts were substantially related to the
instant case These were G Zaffino & Sons, Inc, Case 29-CA-10582,
Achilles Construction Co, Case 29-CA-10585, The Peele Co, Case 29-
CA-10584, and Koenig Iron Works, Inc,. Case 29-CA-10586 As the
cited cases were not consolidated for hearing with the present case, I
shall, in due course, issue separate decisions in each of these
275 NLRB No. 66
450, , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Second Circuit Court of Appeals at 231 NLRB 264 and
582 F.2d 135.
In early January 1976, the, Union and the Allied Asso-
ciation reached a contract settlement . On January 14 the
Union offered. the wage and fund package to the Inde-
pendent Association on the - same basis . as had been
agreed to with the Allied Association However, the In-
dependent Association, desirous of parity, offered to
accept the exact same terms as had been agreed to with
the Allied Association. The Union refused. On January
16, Local 455 was notified that 19 of the Independent
Association's members had withdrawn from the Associa-
tion. On January 20, the Union notified the Association
that it did not consent to such withdrawals. It further ad-
vised that any agreement made between it and the Asso-
ciation 's remaining members would-be binding on those
employers who had attempted to withdraw without the
Union's consent:
On January 23, 1975, Local 455 met with three em-
ployers who had not withdrawn from'the independent
Association. At this meeting the parties present reached
an agreement , although the 'three 'employers' stated that
they were not authorized to represent the Association.
Thereafter in late January, five employers signed the
January 23 stipulation, albeit refusing to do so on behalf
of the Independent Association.
Meanwhile the -strike was continuing against the other'
members of the Independent Association who had not
signed contracts with Local 455. The Union thereupon
sent , two letters to the employers who had withdrawn
from the Independent Association, one requesting that
they • implement the' January 23 stipulation, 2 'And the
other requesting reinstatement of the striking employees.
Two employers did execute agreements identical to the
.January 23 stipulation. and did reinstate the striking em-
ployees.•The 17 others, ' including. Roman , did not.
In light of, the 'situation summarized . above, Local 455
filed 'various unfair labor practice charges. Also, an
unfair labor practice charge was filed against, the Union.
All of those cases-were consolidated for. trial and ulti-
mately,.le'd to a series of decisions ,by the. Board and the
Second Circuit Court of Appeals reported, at NLRB, v.
Independent Assn. of Steel Fabricators, 582 F.2d 135 (2d:
Cir. 1978), cert. denied 439 U.S. 1130 (1979); NLRB v.
Koenig Iron Works, 681 F.2d 130 (3d Cir. 1982). Insofar
as relevant to the present case , certain former members
of the Independent Association, including Respondent,
were ordered to bargain on an individual basis, as op-
posed to 'a multiemployer ,basis, • with Local 455. Also
certain -employers who "had executed contracts with-
Local 810 were ordered'to abrogate, such' contracts' and
withdraw recognition with that Union. • '
It should ,be noted that 'since the commencement of the
events described above (ui 1975) andtlir'oughout the fol-
lowing 7 years, during which . there was litigation,
Roman continued to do `business.' In carrying out its busi-
ness Roman, however, did' so' in a manner -significantly,
different from what it had done prior to 1975. For with
the strike;, Roman replaced its unionized .work force with
new employees , ceased giving effect to the terms and
conditions of ' the previous collective-bargaining agree-
ment , and, in sum, basically operated as if it was a non-
unionized company . Thus, by the time of the court of ap-
peals' final decision in June 1982, Roman essentially had
a new work force, new terms and conditions of employ-
ment , and operated as a nonunion company for about 7
years.
III. CONCLUDED FINDINGS,
After the court's June 7 opinion, the Union on June 8,
1982, sent a letter to Roman and other companies asking
to start negotiations. On July 12 the Union sent-another
letter requesting ' information including the names and ad-
dresses of employees.
On August 18, 1982 , -a meeting (or depending on one's
point of view, a series of separate meetings) was held be-
tween William Colavito, president of Local 455, and
Stanley Israel, a labor attorney representing Roman and
seven other companies. (These were G. Zaffino and
Sons, Inc.; Achilles Construction Co.; the Peele Co.;
Koenig -Iron Works; Mello Metal Products, Inc.; Master
Iron Craft Corp., and Mohawk Steel Fabricators, Inc.)3
At this time, Colavito presented 'as the Union's proposal
certain wage increase demands plus the same standard in-
dependent contracts which these companies had rejected
in 1975. Israel , on behalf of his clients, told Colavito that
they would not agree to the standard independent con-
tract and would ' each insist on negotiating contracts suit-
able to themselves.
Following the August 18 meeting, Colavito and Israel
(sometimes accompanied by his client Salvatore) held
about 16 meetings through January 5, 1984. In this re-
spect, it appears that, although *negotiations . for each
company represented by Israel were kept more or less
separate ; there were occasions when discussions at a
meeting , for company A related to some or all of the
other companies. This often occurred when there' was
discussion of demands and counterproposals relating to
"noneconomic" contract language. Thus, although it is
clear that Israel was negotating separately for each com-
pany, there was a degree of overlap during the negotia-
tions. I also note that there is no contention made in this
case that Respondent failed and refused to meet at rea-
sonable - times and places. . -
As noted above, 'the General Counsel alleges that
Roman ( 1) bargained in bad faith as it had no' intention
of reaching an agreement; and (2) that during the course
of the bargaining, Roman made' unilateral wage increases
without bargaining with Local 455. As to these allega-
tions, I shall, as discussed below, conclude that the Gen-
eral Counsel has'not proven that Roman engaged in ille-
gal "surface bargaining," but that she has proven that
Respondent has violated the Act by unilaterally granting
wage increases to its employees during the negotiations.
2 On the theory that their withdrawals from the Independent Associa-
tion were untimely and therefore they were bound to execute any agree-
ment made between the Union and the remaining members of the Asso-
iation 'c I I.,
3 Of these companies , Master, Mohawk, and Melto signed contracts
with Local 455 Melto, agains t whom a complaint was also issued , agreed
to a contract on the proverbial courthouse steps.
ROMAN IRON WORKS
Turning first to the unilateral wage increases, the es-
sential facts are as follows- At the outset of negotiations,
on August 18, 1982, Colavito asked Israel, inter alia, to
have each company keep Colavito informed as to any
changes in wages, etc., that were being, contemplated.
Colavito testified that he also told Israel that he wanted
such information so as to be able to negotiate such
changes. Israel, although conceding that Colavito re-
quested to be kept informed as to any changes, denies
that Colavito specifically related his request to a desire
to negotiate or bargain about such changes.
On.February 2, 1983, Israel advised the Union, inter
alia, that an employee named Raab had received a 50-
cent-per-hour wage increase on December 16, 1982.4 At
the next meeting, on February 25, Colavito, referring to
the February 2 letter, objected to the Company changing
wage rates and benefits without negotiating such changes,
with the Union. Israel's notes of the February 25 meeting
read: "To do: Send Notice to employers, no increases,
Notify before give." Israel admits that at this meeting,
Colavito said, "shouldn't we negotiate about interim in-
creases?"
Notwithstanding the discussion of February 25, 1983,
Israel concedes . that Roman thereafter gave wage in-
creases during the period during which negotiations
were occurring. He further concedes that Roman gave
such increases without prior notice to Local 455 and
therefore- without offering to bargain about such
changes. Indeed there is no dispute as to the fact that at
a meeting on July 26, 1983, Colavito, after having been
notified after the fact that Roman had given additional
wage increases to four employees since February 25,
protested this action to Salvatore . (In Israel 's words, Co- -
lavito "hit the roof.") In essence, Colavito turned to Sal-
vatore and said that the Company had the Union spin-
ning wheels, that the Company's action of giving unilat-
eral wage increases was undermining the Union.
With respect to the wage increases granted during the
10(b) period, i.e., after January 8, 1983, Respondent did
not call any witnesses to testify as to what basis, if any,
these wage increases were given. That is, Respondent
did not attempt to show in this case that such wage in-
creases were given as part and parcel of a previously es-,
tablished pattern or practice. Israel , who was the only
witness called by Respondent, testified that he was not
aware of the basis on which these wage increases were
given.
With respect to unilateral wage increases, or other
changes made during the course of negotiations, the
Board in Taft Broadcasting Co., 163 NLRB- 475, 478
(1967), stated:
An employer violates his duty to bargain if, when
negotiations are sought or are in progress, he unilat-
erally institutes changes in existing terms and condi-
tions of employment. On the other hand, after-bar-
gaining to an impasse, that is, after good-faith nego-
tiations have exhausted the prospects of concluding
4 As January 8, 1983, is the cutoff date for purposes of Sec 10(b) of
the Act,' unilaterally granted wage increases before that date are only
noted for background purposes
451.
an agreement, an employer does not violate the Act
by making unilateral changes that are reasonably
comprehended within his preimpasse proposals.5
In the present case Respondent seeks to justify-the uni-
lateral wage increases on the grounds that (1) the Union
waived its'right to bargain over said changes and (2) the
Union by its delay in discussing noneconomic issues justi-
fied the Company in giving wage increases to its em-
ployees. I do not find the Company's arguments to be
persuasive.
Regarding the "waiver" argument, the facts disclose
that during the negotiations and specifically on February
25 and July 26, 1983, Colavito explicitly objected to the
Company granting unilateral 'wage increases during the
course of the negotiations. Indeed, Is-real concedes that
on the latter date Colavito, after learning of a series-of
wage increases since February 1983, figuratively hit the
roof over the Company's failure .to first bargain with him
about these' changes. To my mind this is hardly consist-
ent with any assertion, that Colavito, on behalf of Local
455 clearly and unequivocally waived its right to bargain
about this subject. Nor has Respondent demonstrated
that the Union," by any subsequent actions on its part,
waived its rights in this respect.
The Company also contends that because of the
Union's desire to talk first about noneconomic issues, this
substantially delayed negotiations regarding wages and
other economic-items. It therefore argues that: "Absent
interim'wage increases given by Respondent, the normal
process of periodic wage increases would necessarily
have been thwarted." First, as Israel, Respondent's only
witness, could not and did not testify as to the basis on
which Respondent granted the interim wage increases,
there is no showing that such increases conformed to a
preexisting. company policy or practice of granting peri-
odic increases. 'In fact, the timing of the various increases
shows to the contrary.
In certain circumstances an employer may be justified
in implementing unilateral changes during the course of
bargaining, when "a union in response to an employer's
diligent and earnest efforts to engage in bargaining, in-
sists on continually avoiding or delaying bargaining." M
& M Contractors, 262 NLRB 1472 (1982), and AAA Lines,
215 NLRB 793 (1974). In regard to this case, although it
may be true that the Union preferred to discuss noneco-
nomic issues first, that desire was acquiesced in by Israel
on behalf of the Company and in fact Roman did not
make a counterproposal on economic issues until No-
vember 29, 1982. That is, the evidence herein shows that
at least for Roman, Israel was content to talk about non-
economic issues until about -March 1983 and that he
never told Colavito that the lack of discussion on wage
increases was hindering the Company's ability to do busi-
ness, to 'retain qualified employees or that it even was
having an adverse effect on employee morale . If Colavi-
to's "delay" in discussing economic issues was thought to
thwart the normal process of granting periodic increases,
5 See also Stone Boat Yard, 264 NLRB 981 (1982).
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this was never mentioned to Colavito during the-negotia-
tions.
The. interim wage increases given during the period
from May through July 1983 were granted during the
course of collective 'bargaining, were not shown to be
isolated individual wage adjustments, were not shown to
be in accordance' with a pattern or practice -of, granting
periodic increases, were granted in the absence of an im-
passe, and were granted without affording Local 455 an
opportunity to, bargain about such changes. I therefore
find that Respondent has violated Section 8(a)(1) and (5)
of the Act in this respect. -
Turning to the other issue in this case, the General
Counsel alleges that the Company entered into negotia-
tions with no intention of reaching an agreement. Put an-
other 'way she contends that Roman engaged in .surface
bargaining. '
At the outset, it is' noted that Section 8(d) of the Act,
which defines the duty to bargain, does 'not. compel
either party to a collective-bargaining relationship to
agree 'to a proposal or to make a concession. Thus, inso-
far as - mandatory subjects of. bargaining (generally relat-
ing to wages, hours, and terms and conditions-of employ-
ment) the Act does not require either party to yield' or.
compromise its position.` In 'this respect, the Supreme
Court in NLRB v. American National Insurance Co., 343
U.S. 395 ( 1952), stated: '
[T]he Board may not, either directly-or indirectly,
compel concessions or otherwise sit in judgment
upon the substantive terms of collective bargaining
agreements. •
The Court further stated in H._ K Porter Co.;; v., NLRB,
397 U.S. 99, 107-108 (1970): -
It is implicit in the entire' structure of the Act that'
the Board acts to oversee and referee the process-of
collective bargaining, leaving the results of the con-
test to the bargaining strengths of the parties . . . .
While the parties' freedom of contract is 'not abso-
lute under. the Act, allowing the Board to compel .
agreement when the parties themselves. are unable -
to agree would violate the fundamental premise on
which the .Act is' based-private bargaining under
governmental supervision of the procedure, alone,
without any official compulsion _ over the, actual
terms of the contract. •
It is also clear that it was the intention of Congress to
permit (within' limits) employers and unions to utilize
their relative economic strengths vis-a-vis each other, as
part • of the bargaining 'process.6 As pointed out by the
Supreme Court in 'NLRB v. Insurance Agents Internation-
al Union, 361 U.S. 47.7; 489 ,(1960): ' Y
The presence of ,economic weapons,in reserve, and
their actual exercise on occasion by ,the parties, is
part and parcel of the system that the Wagner and
6-There are :of course statutorily defined limits upon each side 's use of
economic power Thus for example , Sec -8(b)(4)(B) prohibits a union
from engaging in secondary boycotts , and Sec 8 (a)(3) would preclude an
employer from discharging employees who join or support a union --
Taft-Hartley Acts have recognized . . . the truth of
the matter is that at the present statutory stage of
our national labor relations policy, the two fac-
tors-necessity for good-faith bargaining between
parties, and 'the availability of economic pressure
devices to each to make the other party incline to
agree on one's terms-exist side by side.
It therefore is not necessarily unlawful for the stronger
side to make demands or take positions consistent with
its strength. Quite obviously, the respective strength of a
union versus a company in bargaining is largely'depend-
ent on the support of the employees it represents, their
willingness to strike and the vulnerability of the compa-
ny to. a strike. See for example World. Publishing Co., 220
NLRB 1065, 1071 (1975), enfd. 454 F.2d 1138 (8th Cir.
1976). Furthermore, collective bargaining is basically a
two-way street. Thus while a union may lawfully make
demands designed to improve existing employee wages
and benefits, there is nothing in the Act which denies an
employer the right, for its part, to demand givebacks.
Where the parties are negotiating to replace a prior con-
tract, neither side is precluded from seeking modifica-
tions to its own advantage. The Act simply does not pre-
clude an employer from demanding that various provi-
sions of the old contract be modified, altered, or even
eliminated. Thus, in the present case, when the General
Counsel argues that the Respondent sought to modify or
eliminate contractual provisions contained in the contract
which expired in 1975, I am unimpressed as to the mate-
riality of such a fact. -
Although it is not illegal for a company to engage in
hard bargaining, Section 8(a)(5) of the Act nevertheless
requires the company to bargain in good faith, which is
essentially defined as a willingness to enter into a con-
tract: NLRB v. Insurance Agents Union, 361 U.S. 477,
485. Thus, although a company may use its relative
strength to press for contract terms favorable to itself, it
may not use its strength to engage in futile or sham ne-
gotiations with -the intention of never reaching an agree-
ment. NLRB v. Herman Sausage Co., 275 F.2d 229, 232,
(5th Cir. 1960). As stated in Abingdon Nursing Center,
197 NLRB 781, 787 (1972):
Good faith, or want of it, is concerned essentially
.with a state of mind . . . . That determination must
be based upon reasonable inference drawn from the
totality of conduct evidence the state of mind with
which the employer entered into and participated in
the bargaining process . . . . All aspects of.the Re-
spondent's bargaining and related conduct must be
considered in unity, not as separate fragments each
to be assessed in isolation,
The bargaining in the present case commenced on
August -18, 1982, and ended on January 5, 1984. During
that time there were about 16 meetings specifically de-
voted to Roman. As noted above, there was no conten-
tion made herein that Roman failed or refused to meet at
reasonable times or places.
The evidence shows that at the start of negotiations,
Colavito presented to each company represented by
ROMAN IRON WORKS
Israel the standard independent contract 7 This form of
contract was rejected by Israel who stated that each
company desired to negotiate its own terms. Israel also
told Colavito at the initial- meeting that Roman was not
going to supply the addresses of the employees.
At the next meeting on September 20 Israel tendered a
marked up copy of the standard independent contract
with the name Melto written in.8 Israel said that the doc-
ument also represented the offers of various of his other
clients, including Roman, except that (1) whereas Melto
would not agree to union-security and, checkoff provi-
sions, the others would, and (2) whereas Melto wanted
the contract to run for 6 years from October 1, 1982, to
-September 30, ,1988, the other companies (including
Roman) wanted 5-year contracts.to run to September 30,
1987. As to wage rates and other economic items, Israel
said that each company would make its own economic.
offers at a subsequent time.
The evidence indicates that for the first 6 or 7 months
bargaining primarily revolved around contractual lan-
guage differences inasmuch as Roman's proposed con-
tract constituted a significant variance from the Union's
proffered standard independent , contract. In effect,
Roman and the other companies were demanding many
and sizeable givebacks on mandatory subjects of bargain-
ing such as seniority, vacations, holidays, subcontracting,
etc.-Israel also made it plain from early on in the negoti-
ations that the companies would not agree to participate
in the various multiemployer trust funds called for in-the
Union's proposed standard independent contract. In this
respect, Roman prior to 1975 had made contributions to
these various funds as part of its prior contracts with
Local 455. However, the evidence shows that during, the
7-year hiatus, Roman ceased paying into the Union's
trust funds. The standard independent contract calls for
employer contributions to a pension fund, a welfare
fund,9 an, annuity fund, a vacation fund, an apprentice-
ship and training fund, and a severance pay fund.
At a meeting on November 8, 1982, the parties dis-
cussed at length their various contract language differ-
ences. Each side explained its positions and I shall not
bore the reader with a full account of this meeting.
(There does not appear to be any dispute as to what took
place.)
On November, 29, 1982, Israel , on behalf of Roman,
wrote to Colavito setting forth the Company's economic
offer as follows:
(1) A five year contract commencing January 1,
1983.
(2) Maintenance' of the existing benefit level with
increased costs to be paid by Roman.
(3) Across the board cost of living increases on
the first days in June 1983, 1984, 1985, 1986 rand
1987.
IGCExh6
8GCExh7
8 On October 31, 1983, Roman changed its position and agreed to par-
ticipate-in the welfare fund at the _ Company's existing health insurance
cost level
453
In view of the November 29 letter, it seems obvious
that Roman at this time was tendering a complete con-
tract offer which was; theoretically at least, capable of
acceptance by the Union 10 Although-this offer, and sub-
sequent offers, may not have been to the Union's liking,
it did, at least on the face of it, represent a full contract
offer covering wages, hours, and other mandatory sub-
jects of bargaining. Among other things, the Company's
proposed contract offered (1) union-security and check--
off provisions, (2) no-strike and no-lockout provisions,
(3) a broad grievance-arbitration clause which culminat-
ed in binding arbitration before an arbitrator designated
by the American Arbitration Association.''
Notwithstanding the above, the General Counsel
points to a number of evidentiary factors from which she
argues I should infer surface bargaining. The salient
points are:
(1) The General Counsel points out that Respondent
refused to furnish the addresses of its employees until
January 1983. Notwithstanding the fact that Local 455
was held to have committed some 8(b)(1)(A) • violations
in 1975, I have no doubt that Roman was legally obligat-
ed to furnish the names of its employees in 1982. Gehn-
rich & Gehnrich, Inc., 258 NLRB 528, 535 (1981). How-
ever, the Company's refusal to furnish addresses oc-
curred outside the statute of limitations period and, in'
my opinion, is only remotely related to the issue of sur-
face bargaining.
-(2) The General Counsel points to the unilateral in-
creases granted during the negotiations which I have
found above to have constituted a violation of Section
'8(a)(1) and (5) of the Act. Unlike the refusal to furnish
addresses , it is my opinion that the unilateral wage in-
creases are much more,directly related to the issue of
surface bargaining. See, e.g, NLRB v. Fitzgerald Mills
Corp., 313 F.2d 260, 267 (2d-Cir. 1963). Yet here too we
are dealing with evidentiary points and one cannot say
that such, unilateral changes necessarily demonstrate an
intent to avoid entering into a contract.
10 The General Counsel asserts that the cost-of-living proposal was in-
complete because it did not contain a mechanism for determing the cost
of living I have no doubt that had the parties agreed to the concept of
cost-of-living increases, the mechanics would have quickly and simply
been arrived at'
'" Roman's contract offer is unlike those in cases such as Continental
Insurance Co v. NLRB, 495 F 2d 44 (2d Cir 1974),, NLRB v A-I King
Size-Sandwiches, 732 F 2d 872 (11th Cir 1984), cert denied 105 S Ct 508
(1984), 116 NLRB 258 (1957), American Parts Systems, 232 NLRB 41, 47-
48 (1977), and San Isabel'Electric Services, 225 NLRB 1073, 1079 fn 7
(1976) In the cited cases the companies were found to have engaged in
surface bargaining where their contract offers-insisted on broad no-strike
clauses while at the same time refusing to offer any effective means of
resolving contract disputes In that class of cases, it may be said that the
companies made illusory contract offers because the contracts offered
were, in effect, unenforceable and/or required the unions to waive their
representation functions
Roman's offer also is distinguishable from cases where companies in-
sisted on contracts of unreasonably short or long duration See, e g,
Holmes Tuttle Broadway Ford, 186 NLRB 73 (1970), enfd 465 F 2d 717
(9th Cir 1972). See also Mooney Aircraft, 132 NLRB 1194 (1961),. where
the administrative law judge, in an opinion adopted by the Board, con-
cluded that the respondent's insistence on a 5-year contract without a
wage reopening clause was evidence of surface bargaining in the context
of other evidence showing an unwillingness to reach a contract
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) The General Counsel contends that dung negotia-
tions the Company reneged on offers it previously had.,
made. In one respect she asserts that Roman reneged on
its initial offer to agree to sections 4 and 5 of the stand-
ard independent contract. Sections 4 and 5 are titled, re-
spectively, "Union Security" and "Checkoff of, Union
Dues." Section 4, union security, also contains a union
hiring hall provision. The General Counsel's argument is
that when Israel on behalf of Roman said that Roman
would agree to section 4, it therefore agreed also to the
hiring hall provisions. Israel on the other hand credibly
testified that he said that Roman would agree to union-
security and checkoff provisions contained in sections 4
and 5, but never agreed to a union hiring hall. As I do
not find that Roman at any time agreed to a union hiring
hall, I do not find that it reneged on a previously agreed
to provision. At most, there was simply a misunderstand-
ing.
There is evidence, however, that at one point during
the negotiations, Respondent reduced its wage offer. Re.
spondent's initial wage offer on November 29 was for
wage increases in accordance with the cost of living. On
March 7, 1982, -Israel changed that offer to cost of living
minus 1 percent. He concedes that this was a reduction
from his previous offer and explains that since Colavito
had not yet addressed himself to wage and economic
issues , Israel reduced the wage offer as a bargaining ploy
to get Colavito's mind focused on wages. As Israel put
it, the March 7 change was intended to "stir things,up."
In any event, this proposal was later modified by Roman
in the following respects. By letter dated July 28, 1983,
Roman made an offer for a 5-year contract effective Jan-
uary 1, 1983, which provided inter alia for: "Across the
board (not classification minimal), cost-of-living increases
on June 1 of each year (but in no event less than 60 cents
per hour) less any increases given in the preceding six
months." At a later meeting on October 21, 1983, the
Company modified the previous proposal by offering
cost-of-living increases each' June with a - 65-cent-per
hour floor and eliminated the credit for previously grant-
ed wage increases. The Union refused this offer which'
was thereafter not changed by the Company. Thus, even
though the General Counsel can point to one instance
where Roman reduced a previously made offer, that
action in light of all subsequent events is, in my opinion,
of no particular importance in proving the General
Counsel's case . On the contrary when viewed in its total-
ity, the evidence shows not only that the Company made
a wage offer but that it made several significant conces-
sions during the course of the negotiations.
(4) The General Counsel contends that the Company's
insistence on a provision which would permit it to sub-
contract is evidence of its intention to avoid reaching an
agreement . Her argument appears to be that if the Com-
pany was able to obtain such a clause, it theoretically
could subcontract out all of its business and eliminate the
bargaining unit.
As to the subcontracting contention, the last contract
which Roman had with Local 455 (expired in 1975), and
the Standard Independent Contract proferied by the
Union at the outset of these negotiations, contains a no
subcontracting provision at section 20. Initially, Re-
spondent proposed that section 20 simply be deleted.
Subsequently, however, the Respondent asked for a
clause that would' explicitly allow it to subcontract. The
Company's final position on this issue was that it would
accept a contract which either deleted section 20 of the
Standard Independent Contract or which contained a
specific clause allowing subcontracting.
The subject of subcontracting is a mandatory subject
of bargaining which means that either side may insist on
its position regarding the subject. Thus, a union would
clearly be within its right if during negotiations, it insist-
ed on a clause which precluded all subcontracting by a
company. i 2 By the same token I can see nothing illegal
in a company refusing to agree to subcontracting restric-
tions or, alternatively, insisting on a right to subcontract
during the life of the labor agreement. To hold otherwise
would, in effect, impose a lack of mutuality in collective
bargaining which I do not believe was envisioned by
Congress. In the present case there is no evidence that
Roman was taking its positions vis-a-vis subcontracting
because it, in fact, intended to take the draconian step-of
eliminating the bargaining unit . All ' that can be said is
that Israel intended to give the Company 'the option of
subcontracting if economic circumstances made that de-
sirable. -I therefore do not believe that the Company's
position regarding subcontracting is evidence of surface
bargaining in the context of this case.
(5) The General Counsel correctly notes that the Com-
pany wanted significant givebacks from the last contract
it had with Local 455. However, there had been a 7-year
hiatus between the expiration of that contract and the re-
sumption of negotiations and a great many changes had
evolved in the Employer's terms of employment during
the interim. Moreover, I do not perceive the Act to pro-
hibit a company from demanding givebacks.. Collective
bargaining is a two-way street and each side, based on its
relative -strength, is entitled to try to get the best deal
possible for itself. Gehnrich & Gehnrich, Inc., 258 NLRB
528 (1981).
It seems to me that although the General Counsel has
presented some evidence which perhaps in another con-
text, might give rise to a prima facie inference of surface
bargaining, the record. in this case convinces me that she
has not sustained her burden of persuasion. Thus, al-
though I would say that Respondent was engaged in bar-
gaining consistent with its relative strength, vis-a-vis the
Union, I am equally convinced that it did not cross the
line into surface bargaining.
CONCLUSIONS OF LAW
1. Respondent Roman Iron Works, Inc. is and has
been at all times material an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural and Ornamental Iron
12 I should note, however, that there are certain types of subcontract-
ing clauses which are illegal pursuant to Sec 8(e) of the Act For a dis-
cussion of so called :'union signatory" clauses in the context of Sec 8(e),
see, for example, Retail Clerks Local 1288 (Nickel's Pay-Less), 163 NLRB
817 (1967), enfd 390 F 2d 856 (D C Cir 1968)
ROMAN IRON' WORKS 455
Workers, AFL-CIO is and has been at all times material
a labor organization within the meaning of Section 2(5)
of the Act.
.
3. By unilaterally granting wage increases to employ-
ees without prior notice to or consultation with the
Union during collective-bargaining negotiations, Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Employer has not violated the Act in any, other
respect alleged by the complaint.
REMEDY- -
Having found that the Employer has engaged in cer-
tain unfair labor practices, I find it necessary to order-the
Employer to cease and desist therefrom and to take cer-
tain affirmative action necessary to effectuate the policies
of the Act.
On these findings ' of fact and conclusions 'of law and
on the entire record, I issue the following recommend-
edia
(b) Post at its plant copies of the attached notice
marked "Appendix."14 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
(c) Notify the Regional Director in writing within 20
al.
days from the date of this Order what steps the Re-
spondent has taken to comply.
14 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of-the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " -
APPENDIX
ORDER - -
The Respondent, Roman Iron Works, Inc., Greenvale,
New York, its officers, agents, successors, and assigns,
shall -
1. Cease and desist from- -
(a) Refusing to- bargain collectively with Shopmen's-
Local Union No. 455, International Brotherhood of
Bridge, Structural and Ornamental Iron-Workers, AFL-
CIO by unilaterally granting wage increases to employ-
ees, during the course of collective-bargaining negotia-
tions, without prior notice to and consultation with the
Union; provided, however, that.nothing contained in this
Order shall.compel Respondent to rescind such wage in-
creases previously granted.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative. action necessary. to
effectuate the policies of the Act. -
,(a) In the event that Respondent and the Union resume
negotiations, Respondent shall notify the Union as to all
proposed wage increases.to employees in the bargaining
unit and shall not implement such wage increases absent
an impasse in negotiations or consent by the Union. . .
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses -
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were afforded the 'op-
portunity to present evidence, it has been found that we
violated the National Labor Relations Act and we have
been ordered to post this notice and to carry out its
terms.
WE WILL NOT refuse to bargain collectively with
Shopmen's Local Union No. 455, International Brother-
hood of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO by unilaterally granting wage increases to
our employees during the course of collective-bargaining
negotiations, - without prior notice to and consultation
with the Union. - -
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. -
In ,the event that negotiations resumed between our
Company and the Union, WE WILL notify the Union- in
advance of any wage increases that we propose giving to
our employees and WE WILL NOT implement' such wage
increases absent an impasse in negoiations or consent by
the Union. - ' ,
ROMAN IRON WORKS