Roman Iron Works, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1987

282 N.L.R.B. 725 (N.L.R.B. 1987)

ROMAN IRON WORKS
Roman Ir on Works , Inc. and - Shopmen's Local
Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO. Cases 29-CA-11792 and 29-
CA-11860
14 January 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, STEPHENS, AND
CRACRAFT
On 12 June 1986 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the excep Lions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 only to the extent consistent with this
Decision and Order.3
This case evolves from "a history of litigation,
the scope of which can rarely be matched in labor
law history."4 The Respondent was last a party to
a collective-bargaining agreement with the Union
in 1975. The Respondent, then a member of a mul-
tiemployer bargaining association, began negotiat-
ing with the Union through the association shortly
before the contract expired in 1975. The parties
failed to reach agreement on a successor contract
I We correct the following errors in the judge's decision.
In the first paragraph of his decision, the judge inadvertently stated
that the consolidated complaint in this proceeding issued 28 June 1982.
The correct year is 1985.
In sec . II,A, par. 1, the judge stated that the United States Court of
Appeals for the Second Circuit ordered the Respondent to bargain indi-
vidually with the Union 6 June 1983 The correct date is 7 June 1982.
In sec. II,D, par. 9, the judge stated that the Respondent offered to
provide a holiday on either election day or on a personal day. The Re-
spondent's offer was in fact to provide "[e]lection day as an additional
paid holiday and, effective January 1, 1985, one paid personal day per
year."
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(5) and (1) by changing employees' wage rates unilaterally, we em-
phasize that, contrary to the Respondent's contention, the Board's Order
in Roman Iron Works, 275 NLRB 449 (1985), did not invite the Respond-
ent to increase wages unilaterally at times other than during negotiations
While the Older in that case specifically prohibited the Respondent only
from unilaterally granting wage increases "during the course of collective
bargaining negotiations," the Order was carefully tailored to the violation
found-umlateral wage increases granted during the course of collective
bargaining The Board neither stated nor implied that the Respondent
was free to grant unilateral wage increases at any other time.
a We shall amend Conclusion of Law 4 to conform to our findings and
conclusions. We shall also amend Conclusion of Law 4 to delete, its refer-
ence to changes in hours and working conditions. There is no contention,
and no evidence, that the Respondent changed anything other than the
employees' wages. We shall issue a new Order and notice to conform to
the amended Conclusion of Law. '
4 Roman Iron Works, supra, 275 NLRB at 449-450 The administrative
law judge in the cited case more completely reviews the litigation histo-
ry.
725
and, in July 1975, the Union struck. Following ex-
tensive litigation involving the Board, the Re-
spondent, and the Union, the United States Court
of Appeals for the Second Circuit on 7 June 19825
ordered the Respondent to bargain individually,
with the Union.6 That effort engendered, further
unfair labor practice proceedings and, on 20 May
1985, the Board in Roman Iron Works, 275 NLRB
449, found that the Respondent violated Section
8(a)(5) and (1) by unilaterally implementing certain
wage increases, but had not unlawfully engaged in
surface bargaining as alleged. The parties' bargain-
ing shortly before the Board's decision in that case
issued prompted the unfair labor practice charges
litigated in this proceeding.
This case has issued simultaneously with Koenig
Iron Works, 282 NLRB 717, because the Respond-
ents' agents in both cases are the same and the par-
ties bargained simultaneously regarding similar bar-
gaining proposals. At the General Counsel's re-
quest, and with the Respondents' consent, the
judge consolidated the hearings in both cases,
except that he reopened the hearing for additional
evidence pertaining only to the Koenig case pursu-
ant to additional charges filed only in that case.
We agree ' with the judge that the Respondent
violated Section 8(a)(5) and (1) by changing em-
ployees' wage rates without affording the Union an
opportunity to bargain about the changes; by im-
plementing wage increases in excess of the amounts
offered to the Union; and by withdrawing recogni-
tion of, and refusing to bargain with, the Union as
the exclusive representative of the Respondent's
employees. We disagree, however, that the Re-
spondent violated Section 8(a)(5) and (1) by "refus-
ing . . . to recognize that a collective bargaining
agreement had been arrived at" and "by refusing to
execute a collective bargaining contract, embodying
the terms of the agreement reached between Re-
spondent and the Union."
The negotiations that led to the most recent
Board decision in this case, Roman' Iron Works,
supra, 275 NLRB 449, began 18 August 1982 and
ceased 5 January 1984. The Respondent made its
last offer to the Union 28 July 1983 and finalized
the offer 31- October 1983. That offer was, as the
Board found in the earlier case, 7 complete save for
a mechanism for determining cost-of-living wage
adjustments. The final offer provided that the con-
tract would terminate December 1987.
Shortly before the Board's decision issued in the
most recent case,, the parties reinstituted the negoti-,
B As indicated, the judge, at sec II,A, par. I, of the attached decision,
inadvertently stated it was 6 June 1983.
6 NLRB v. Koenig -Iron Works, 681 F 2d 130 (2d Cir. 1982).
7 Roman Iron Works, supra, 275 NLRB at 453
282 NLRB No. 101
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ations and met three times in 1985 in an attempt to
reach agreement.
According to Respondent Counsel Stanley Isra-
el's uncontradicted testimony, Israel told Union
President William Colavito in their first negotiating
session, held 8 February 1985, that "under no cir-
cumstances would the companies consider the prior
expiration date." He further told Colavito, "If we
were to use the old expiration dates we would
have short term contracts." He said, "That's out of
the question, and we're going to negotiate new
term contracts from [this] point going forward."8
At the parties' next meeting , held 14 March
1985, Colavito "went over every point" with Israel
in the Respondent's outstanding offer and present-
ed a union counteroffer, which called for the con-
tract to expire 30 June 1986. Colavito could not
recall, however, whether he reviewed at that meet-
ing the proposed contractual termination dates of
the Respondent's 1983 offer. The judge found he
had not.
Israel opened the parties' final meeting, held 29
March 1985, by announcing that he no longer be-
lieved the Respondent had a duty to bargain with
the Union. Colavito initially protested, and then
left the room to confer in private with Union
Counsel Belle Harper. Harper wrote out a letter to
Israel for the Respondent and Koenig which Cola-
vito signed and handed to Israel. The letter stated:
This is to advise you that Shopmen's Local
Union #455 IABSOIW AFL-CIO, hereby ac-
cepts the last contractual offer made by each
of the above named employers [Roman and
Koenig].
Accordingly, we now have a collective bar-
gaining agreement.
There is no dispute that the Respondent refused
to enter into a contract with the Union and the
record shows that the Respondent explicitly re-
fused to do so by letter dated 29 March.
A 'collective-bargaining agreement arises only
after a meeting of the minds on all material terms.9
Both the Respondent and the Union in this case re-
garded the duration of any new agreement as a ma-
terial term. Thus, both the Respondent's finalized
offer and the Union's counteroffer contained a pro-
posed termination date. The Respondent, however,
clearly withdrew that aspect of its offer when
8 The judge found that Israel:
informed Colavito that his clients were dissatisfied with the
prospect of short-term contracts resulting from the lapse of time
since they had last negotiated, and that therefore new contract terms
would have to be negotiated
9 Luther Manor Nursing Home, 270 NLRB 949 fn. 1 (1984), affd sub
nom. Food & Commercial Workers Local 304A v. NLRB, 772 F 2d 421
(8th Cir 1985)
Israel stated in the first negotiating session that
"under no circumstances would the companies con-
sider the prior expiration date." 1 ° The Respondent
did not thereafter propose a specific termination
date in lieu of the dates it rejected. Accordingly,
when Colavito accepted the Respondent's offer on
29 March 1985, the offer lacked a material term,
and his acceptance did not create a collective-bar-
gaining agreement . The Respondent thus did not
violate Section 8(a)(5) and (1) by refusing to recog-
nize that an agreement had been reached and by
refusing to execute a written document embodying
its terms. I'
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4.
"4. The Respondent violated Section 8(a)(5) and
(1) of the Act by
"(a) Changing its employees' wage rates without
affording the Union an opportunity to bargain
about the changes as the exclusive representative of
the Respondent's employees.
"(b) Implementing wage increases in excess of
the amounts offered to the Union in collective bar-
gaining.
"(c) Withdrawing recognition of, and refusing to
bargain with, the Union as the exclusive represent-
ative of the Respondent's employees."
REMEDY
Having found that the Respondent has engaged
in certain unfair labor ' practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order the Respondent to bargain with
the Union on request and, if a complete under-
standing is reached, embody the understanding in a
signed agreement.
Our Order should not be construed as requiring
the Respondent to cancel any wage increase or
other improvements in benefits without a request
from the Union. See Elias Mallouk Realty Corp.,
265 NLRB 1225 fn. 3 (1982).
10 We agree with the judge that the Respondent had not otherwise
withdrawn its final offer . In adopting the judge's conclusion, however,
we find it unnecessary to rely on his finding in sec II,D, par 5, of his
decision, that the fact that Respondent Counsel Israel stated he would be
the Respondent 's only negotiating representative demonstrated that the
offer had been withdrawn We rely instead on the other reasons the
judge gave
11 Ridge Citrus Concentrate, 133 NLRB 1178, 1178-1179 (1961); Merce-
des-Benz, 258 NLRB 803 (1981), Interprint Co., 273 NLRB 1863 (1985);
see Trustees of Boston University, 228 NLRB 1008, 1010 (1977), enfd. 575
F 2d 301 (1st Cir. 1978), see generally H. K. Porter Ca v. NLRB, 397
U S. 99 (1970)
ROMAN IRON WORKS 727
ORDER
The National Labor Relations Board orders that
the Respondent, Roman Iron Works, Inc., Green-
vale, New York, its officers, agents, successors, and
assigns, shall
1. Cease! and desist from
(a) Changing its employees' wage rates without
affording the Union an opportunity to bargain
about the changes as the exclusive representative of
the employees in the bargaining unit set out below
in paragraph 2(a).
(b), Implementing wage increases in excess of the
amounts offered to the Union in collective bargain-
ing.
(c) Withdrawing recognition of, and refusing to
bargain with, the Union as the exclusive represent-
ati've of the Respondent's employees in the bargain-
ing unit set out below in paragraph 2(a).
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive' representative of the employees in the fol-
lowing appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All production and maintenance employees of
the Respondent, including plant clerical em-
ployees employed at its plant, exclusive of
office clerical employees, guards and supervi-
sors as defined in the Act.
(b) On request by the Union, cancel the unilater-
al changes in employee terms and conditions of
employment found unlawful herein.
(c) Post at its Greenvale, New York facilities
copies of the attached notice marked "Appen-
dix." 12 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 immediate-
ly 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 material.
(d),''Notify the Regional Director, in writing
within 20 days from the date of this' Order what
steps the Respondent has taken to comply.
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 has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT change your wage rates without
affording the Union an opportunity to bargain
about the changes as the exclusive representative of
those of you in the bargaining unit set out below.
WE WILL NOT implement, wage increases in
excess of the amounts offered to the Union in col-
lective bargaining.
WE WILL NOT withdraw recognition of, and
refuse to bargain with, the Union as the exclusive
representative of those of you in the bargaining
unit set out below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you, in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All of our production and maintenance em-
ployees, including plant clerical employees em-
ployed at our plant, exclusive of office clerical
employees, guards and supervisors as defined
in the, Act.
WE WILL, on request by the Union, cancel the
unilateral changes we made in your terms and con-
ditions of employment that the Board found to be
unlawful.
ROMAN IRON WORKS, INC.
Beatrice Kornbluh, Esq., for the General Counsel.
Stanley ' Israel, Esq., and Diane Weinstein, Esq., of New
York, New York, for the Respondent.
William Colavito, Esq., of New York, New York, for the
Charging Party.
DECISION
12 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 Nation-
al 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."
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This consolidated case was heard by me at Brooklyn,
New York, on 12 November 1985. The consolidated
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, issued on 28 June 1982, is based on charges
filed on 9 April and 22 May 1985 by Shopmen's Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (the
Union). The Respondent, Roman Iron Works, Inc., is al-
leged to have violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act) by unilaterally
changing existing wage rates and conditions of employ-
ment; granting wage increases in excess of increases of-
fered by Respondent to the Union during collective bar-
gaining ; subsequently, after an agreement had been
reached, refusing to execute a written contract; and
withdrawing recognition of the Union. The Respondent
interposed an answer denying the material allegations of
the consolidated complaint.
The parties were afforded full opportunity to be heard,
to call, examine, and cross-examine witnesses , and to in-
troduce relevant evidence. Posthearing briefs have been
filed by the General Counsel and the Respondent.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
There is, no issue about jurisdiction, the Respondent
having admitted the material facts alleged with respect
thereto. At the pertinent times, Respondent, a New York
corporation , maintained its principal place of business in
Greenvale, New York, and engaged in the manufacture
and distribution of metal products. During the year pre-
ceding the issuance of the complaint, alleged as typical,
it purchased and had delivered to it at Greenvale, from
points outside New York, goods and materials valued in
excess of $50,000. It is, and at all material times has been,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Respondent has
admitted and I find that the Union is, and has been at all
times material in this case, a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background'
The bargaining unit is composed of all production and
maintenance employees of the Respondent, including
plant clerical employees employed at its plant, exclusive
of office clerical employees, guards, and supervisors as
defined in Section 2(11) of the Act. Prior to, 1975,
Roman had had a series of successive collective-bargain-
ing agreements with the Union. For a while, Roman had
joined with other companies in a multiemployer associa-
tion for the purpose of bargaining with the Union, but it
i The matters narrated without evidentiary comment are those facts
found by me on the basis of admissions in the answer , data contained in
the exhibits , stipulations between or concessions by counsel, undisputed
or uncontradicted testimony , and, in instances when conflicts in the testi-
mony did not warrant discussion, the testimony which I have credited;
and administrative notice which I have taken of the findings of an admin-
istrative law judge, affirmed by the Board, which are referred to herein.
has not entered into any agreement with the Union since
1975. In that year a strike took place. The Respondent
replaced its unionized work force with new employees,
ceased giving effect to the terms and conditions of the
previous collective -bargaining agreement , and "in sum,
basically operated as if it was a nonunionized company."
Roman Iron Works, 275 NLRB 449, 450 (1985). On 6
June 1983, an order was made by the Court of Appeals
for the Second Circuit directing Respondent to bargain
on an individual basis with the Union.
Negotiations were thereafter conducted for Respond-
ent by its counsel, Stanley Israel, who also represented
several other former members of the two trade associa-
tions which formerly had handled negotiations with the
Union., The Union was represented by its president, Wil-
liam Colavito. Their meetings generally dealt with con-
tracts for a number of the independent companies.
Israel and Colavito met a number of times during the
latter half of 1982 and throughout 1983 without reaching
an agreement with respect to Roman . During the period
from May through July 1983, without notice to the
Union, Roman gave wage increases to its employees. By
doing so , it violated an express commitment which Israel
had given to Colavito on 18 August 1982, that no
changes in wages or working conditions would be made
without advance notice to the Union. Colavito filed
unfair labor practice charges on 8 July 1983, on which
hearings before an administrative law judge were con-
cluded in May 1984. The decision, issued on 3 January
1985 and affirmed by the Board on 20 May 1985, held
that Respondent had violated Section'8(a)(1) and (5) of
the Act by unilaterally granting the increases without
notice to and an opportunity for the Union to bargain
with respect to them.
Respondent was ordered to cease and desist from uni-
laterally granting wage increases to employees during
the course of collective-bargaining negotiations without
notice to and consultation with the Union and, in the
event negotiations resumed, to notify the Union of any
proposed increases and that Respondent would withhold
implementation pending impasse in negotiations or Union
consent. Roman Iron Works, supra.2 For most of the
period in which the case was pending, the negotiations
between the parties were held in abeyance.
B. The 1985 Negotiations
1. Reinstitution of the talks
On 20 November 1984 Colavito wrote to Israel re-
questing a meeting and suggesting 25, 26, and 27 Novem-
ber as suitable meeting dates. On 26 November Israel re-
sponded with the suggestion that they meet during the
week of 24 December and requested that "[I]f, in fact,
meetings are set up for that week, may we please have
revised proposals (if any) in advance of the meetings."
On 28 November Colavito wrote back suggesting a
meeting earlier in December and declining to present
proposals, stating, "We feel it is unnecessary to send re-
2 The administrative law judge dismissed an additional charge by the
union to the effect that Respondent had not bargained in good faith since
at least 8 February 1983.
ROMAN IRON WORKS
vised demands in advance of meeting ; We are flexible on
virtually all items and look for a reasonable discussion."
He suggested that Israel call to set -an appointment by
telephone . Instead, Israel again wrote, suggesting that
Colavito send revised demands, if any, and suggesting a
January date. On 4 December Colavito suggested 27 De-
cember and, on 18 January 1985 , again proposed setting
a date by telephone and suggesting 23 January . In addi-
tion, in this letter Colavito requested information regard-
ing the names , addresses , classifications , and rates of pay
of any ` new employees who might have been hired and
asked for a list of any increases or changes in benefits
given to any employees on the payroll at the time infor-
mation had last been furnished to the Union . On 22 Janu-
ary Israel suggested 8 February . That is when they final-
ly met. Colavito confirmed the date on 24 January. They
held meetings on 8 February, 14 March, and 29 March
1985.
The last offer which Respondent had made to the
Union before the hiatus in negotiations was at the very
end of 1983 . On 28 July Respondent had sent the Union
an update of its economic aspects . It offered a 5-year
contract effective 1 January 1983 ; across-the-board cost-
of-living increases on 1 June of each year of at least 60
cents per hour less any intermediate increases which
might have been given; effective ' ,1 January 1984, 3
weeks ' vacation after 10 years of service ; election day as
an additional paid holiday and, effective 1 January 1985,
one paid personal day per year ; and one pair of work-
shoes to be furnished per year . All other existing eco-
nomic items were to remain unchanged.
2. Meeting of 8 February 1985
Only Colavito and Israel were present at the meeting
on 8 February 1985 . Colavito noted the absence of prin-
cipals, whose presence he had requested in one of his let-
ters. He testified that he had wanted them there because
the discussion frequently centered about individual work-
ers and (according to him) the companies for whom
Israel was negotiating had a practice of giving different
increases to different employees. He wanted to ascertain
the rationale for the different treatment . However, Israel
announced that he , alone, would be conducting the nego-
tiations on behalf of the companies.
Israel also informed Colavito that his clients were dis-
satisfied with the prospect of short-term contracts result-
ing from the lapse of time since they had last negotiated,
and that therefore new contract terms would have to be
negotiated . Initially, Roman had wanted a 4- or 5-year
contract term . Colavito professed to be unable to see any
need to go into the matter , but raised the question of
whether the resultant underpayments (his characteriza-
tion) resulting from the lack of a contract during the
time lapse would be made up by Respondent . Israel in-
sisted on negotiating new commencement dates for the
contracts with comparably long terms, and on bargaining
forward from the date of the meeting.
As Colavito had not received data requested in his let-
ters and Israel wanted information about a union trust
fund , they agreed to exchange the information a week
before their next meeting . As matters actually worked
out, data was exchanged on 26 February by hand -deliv-
729
cry -to -their respective offices when a meeting scheduled
for that date was canceled.
3. Meeting of 14 March 1985
Colavito testified that he told Israel that he had a
counteroffer but first wanted to review the Company's
last offer point by point . He testified:
I'd have to refer to my notes exacting point by
point, but I went over every point and in each point
he agreed that this was the last company 's position
on each point . Then I started to enumerate the last
union offer and he said, look you don't have to go
through your last offer . I just want to know and
note your changes that you're -making on your last
offer, so I didn 't go through all that. I went
through the counter offer we were presenting at
this meeting.
Israel testified that Roman 's last offer , finalized on 31
October 1983 , consisted of terms which he had set forth
in an "update" letter sent to Colavito on 28 July 1983.
The proposals consisted of a major medical plan pro-
posed by Respondent on 11 August 1983 ; a change of
the proposed contract termination date to 30 December
1987 ; a change in the benefits payable under the major
medical plan , to be effective in June 1984 ; and changes
made in the meeting held on 31 October 1983, when a
principal of the Respondent was present. The changes
consisted of withdrawal of the offer of the additional
paid holiday and personal day and substitution in their
place of additional sick days, effective in January 1984;
increase of the , minimum amount of any hourly increases
that might be granted from 60 cents to 65 cents ; indica-
tions of Respondent 's willingness to consider entering the
Union's welfare program if the costs of its own program
could be maintained ; and indications of willingness to
employ the form of the Local 455 standard contract
modified to meet Respondent 's previous requests (in lieu
of Teamsters Local 810 format previously favored by
Respondent).
The Union's counterproposal dealt with wages, wel-
fare, sick leave, vacation, holidays, workshoes, training
fund, severance pay, seniority , subcontracting , the mini-
mum pay for various classifications, and the annuity
fund, an item respecting which the Union adhered to its
earlier demands. The Union dropped its pension fund
demand , and demanded an expiration date of 30 June
1986.
Israel explicitly rejected a number of these demands.
He promised to get some information which Colavito
said he needed but had not received. They agreed to
meet again on 29 March, which was the earliest date
Israel was available.
4. Meeting of 29 March 1985
Israel opened the meeting ' of 29 March with the an-
nouncement that it would be short because he did not
feel that Respondent was obligated to bargain with the
Union further. Colavito pointed out that Israel had
promised to get back to him on certain proposals which
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been completely rejected at the previous meet-
ing, but Israel simply repeated that he did not feel Re-
spondent had an obligation to bargain.
At that point or shortly thereafter, they were joined
by Belle Harper, counsel for the Union . Colavito ap-
prised her, in a private conference , of what had tran-
spired . She wrote out a letter to Israel , in longhand,
which Colavito signed and handed to Israel when he re-
turned to the room . Dated 29 March 1985 , the letter is
referenced to Roman Iron Works and Koenig Iron
Works, and reads as follows:
This is to advise you that Shopmen's Local
Union #455 IABSOIW AFL-CIO, hereby accepts
the last contractual offer made by each of the above
named employers.
Accordingly, we now have a collective bargain-
ing agreement.
Very truly yours,
William Colavito-Pres.
Local 455 Ironworkers Union
10:40 A.M.
3/29/85
Colavito had still not received all the information he
had requested respecting classifications of employees and
had received no information regarding bonuses, but he
testified that he did not feel that the lack of that informa-
tion stood in the way of his accepting the Respondent's
last offer.3
It is not altogether clear what Israel said when the
letter of acceptance was handed to him. Both Colavito
and Harper initially testified that Israel said only that he
would answer it in writing; on cross -examination, Cola-
vito testified that Israel also said that he , disagreed that
there was a contract . Israel testified that he could not
recall his exact remarks, but he thought that he respond-
ed that from his point of view "obviously we don't have
a contract . You can't accept something which doesn't
exist." Whatever was said , however, it is clear from the
testimony that prior to the time the letter was prepared
by,Harper, Israel had made no explicit statement to the
effect that Respondent's last offer , communicated on 31
October 1983 , was no longer on the table , and that noth-
ing was ever said: by Colavito indicating his intention to
accept that offer until after Israel had declared that Re-
spondent no longer had an obligation to bargain with the
Union.
5. Economic data furnished
Respondent's actions with respect to employees' wages
and terms of employment are summarized in two pieces
of correspondence, dated 15 February and 4 March 1985,
as follows:
a In his posthearmg brief, Respondent 's counsel notes that, according
to Harper's own testimony, she did not know the terms of the offer being
accepted at the time she drew up the letter accepting it I attach no sig-
nificance to, that fact. The letter of acceptance was signed by Colavito,
for whom she acted as counsel and draftsman . Colavito was responsible
for the negotiations, and he accepted the offer on behalf of the Union.
When he did so, he had a thorough familiarity with the contents of the
offer being accepted'
No bonuses were given in 1984.
Current medical coverage premiums per employee
amounted to $101 .60 (family) and $38 .05 (individual).
Pension benefits of an employee named Rufus Zeigler
amounted to $6,200 as of the end of 1983.
Since 1 January 1984 no additional benefits had been
granted.
Wage increases given since 1 January 1984 to employ-
ees currently on the payroll were as follows:
Karl Sik Hired 5/15/84 at $10.00
Increased: 6/14/84-$ 10.50
7/25/84-11.00
11/8/84-12.00
Antonio Longobucco Hired 3/12/84 at $8.50
Increased : 11/8/84-$9.00
Vincent Mutarelli Increased : 2/16/84-$7.25
7/11/84-8.00
Rufus Zeigler Increased : 10/18/84-$11.50
Frank Cantelmi Increased : 7/12/84-8.50
E. Alleged Unilateral Changes in Wage Rates and
Other Terms and Conditions of Employment and
Changes Made in Excess of Those Offered the Union
Data furnished by Respondent, which has just been
summarized, shows that wage increases were given 'to
several employees during 1984 in ascertainable amounts.
Two employees, Zeigler and Cantelmi, are shown to
have received increases in amounts which are not dis-
closed . Increases given to Sik and Zeigler were given
within the period of 6 months prior to filing of charges.
None of the increases were granted after the Union
wrote its letter requesting resumption of negotiations.
The Respondent concedes that unilateral wage in-
creases were granted . It concedes that some of them may
have exceeded its'wage offers ' to the Union . It neverthe-
less presents several arguments to show that the in-
creases were lawful.
The first of these is that , though Roman previously of-
fered a variety of increased benefits to Local 455, it only
implemented a single wage increase , and the value of the
increase was less than the overall value of the benefit
package which it had offered the Union . I find this argu-
ment untenable. No evidence has been furnished which
establishes the value of the benefit package ; no calcula-
tion of the value of the benefits included in the package
was even hinted at. The logic of the argument is faulty
because the evidence clearly establishes an increase
having been granted which exceeded that offered the
Union . There is nothing to indicate that negotiations
were proceeding in any fashion other than consideration
of the various terms and conditions of employment
singly, individually, or one by one . It is therefore only
on such a basis that comparison can be drawn between
the actions taken by Respondent and its offers to the
Union with respect to any particular demand or offer.
Respondent's major argument , however , is based on
the Board's direction to it to cease and desist from
[U]nilaterally granting wage increases to employees,
during the course of collective bargaining negotia-
ROMAN IRON WORKS 731
tions, without prior notice to and consultation with
the Union...
Respondent argues that at the time the wage increases
were given, no negotiations were in progress , and that it
was therefore free to grant the increases unilaterally and
without notice to the Union, and did not thereby violate
the Board Order.
But, is it true that no negotiations were in progress?
Respondent's counsel discusses this point in his posthear-
ing primarily on the basis of the requirements of the
Order . He asserts that the increases were given at a time
when a total impasse had been reached in negotiations
and neither negotiations nor communications were in
progress, the Union having opl.ed for litigation. He also
characterizes the "litigation," which consisted of pros-
ecution of unfair labor practice charges before the
Board, as "unsuccessful." He then notes that the Order
was carefully drawn to allow for wage increases during
the "impasse-litigation period, but prohibited the same as,
if and when negotiations resumed."
The trouble with this argument is that no one at the
hearing attempted to prove the reason why there were
no meetings in 1984. It is not even clear that it was the
Union which impeded further negotiations, as contended
in Respondent's posthearing brief. There is no evidence
of a total impasse, or that negotiations were "terminat-
ed." The burden of establishing that an impasse existed
or that Respondent had a good-faith belief that an im-
passe existed during the period when it was granting uni-
lateral wage increases is on the Respondent. Merely
breaking off negotiations does not prove impasse. See
Cheney California Lumber Co. v. NLRB, 319 F.2d 375,
380 (9th Cir. 1963). The Respondent must have been
warranted in assuming the futility of further good-faith
bargaining. See Alsey Refractories Co., 215 ' NLRB 785,
787 (1974).
The proof required to establish that parties have
reached an impasse in negotiations has been described as
follows:
Whether a bargaining impasse exists is a matter of
judgment . The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is disagreement , the contemporaneous
understanding of the parties as to the ' state of nego-
tiations ,- are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
enfd . sub nom . AFTRA Kansas City Local v. NLRB,
395 1~.2d 622 (D.C. Cir. 1968).
Many of the factors mentioned are hinted at in the tes-
timony or other evidence in this case, but there is no
clear picture of the circumstances which existed when
Respondent made its final offer in October 1983 because
there is no evidence at all in the record with respect to
"the contemporaneous understanding of the parties as to
the state of negotiations ." I am left with the impression
that though the Union was not accepting Respondent's
offers, it did not indicate its position on any of them to
be final and seemed merely intent on ' wringing further
concessions . The difference is important . See Supak &
Sons Mfg. Corp., 192 NLRB 1228 , 1243 (1971). The cor-
respondence a year later which set the,date for a further
meeting contains no mention of impasse , of the unlikeli-
hood of reaching an agreement or of any problem other
than that of setting a meeting date . There is no evidence
that on 31 October 1983 the negotiations had been dead-
locked ; the testimony is only that parts of Respondent's
offer were rejected by the Union . That did not necessari-
ly mean that negotiation on other open issues would
have proved fruitless . There was, therefore, no deadlock
and no impasse , for negotiations could have continued.
See Chambers Mfg. Co., 124 NLRB 721, 725-726 (1959),
enfd . 278 F.2d 715 (5th Cir. 1960).
All that has been established in this case is that the
parties negotiated until 31 October 1983; an agreement
was not reached; thereafter unfair labor practice charges
were litigated ; and negotiations resumed when the Union
wrote on 20 November 1984 requesting a further meet-
ing.
There cannot, in any event, be a finding of "impasse"
in the instant situation because Respondent has been
found guilty of committing a serious unfair labor prac-
tice . Contrary to Respondent 's contention ,' the Union
was successful to a substantial extent in its proceedings
before the Board . The Respondent was found to have
committed unfair labor practices by granting unilateral
wage increases during the period from May through July
1983. Respondent 's repetition of this very same offense in
1984 while the Union was prosecuting the unfair labor
practice charges arising from Respondent's misconduct
in 1983 cannot now be condoned because negotiations
were interrupted. The interruption was not termination
and was not impasse.
What we are left with is the fact that the hiatus in ne-
gotiations was concurrent with the pendency of the pro-
ceedings before the Board; that the Union took the nec-
essary steps to get the negotiations going again after ap-
proximately a year; and that the Respondent exerted no
effort in that direction . The hiatus was caused by the ne-
cessity for the Union to prosecute unfair labor practice
charges against the Respondent, and Respondent was
found guilty of having committed some of the unfair
labor practices charged . While the prosecution was
pending, Respondent repeated the offense by granting
wage increases to' employees . No claim, is made that they
were granted pursuant to any plan of automatic increase
or past practice . They were entirely discretionary with
Respondent . The idea that the time taken out by the
Union to prosecute the charges constituted an "impasse"
during which Respondent could repeat the very offense
charged is unthinkable.
I conclude , on the basis of the foregoing, that negotia-
tions were pending and were "in progress" throughout
the period from 31 October 1983 through 20 November
1984, notwithstanding the failure of the patties to meet
and agree on terms, and that Respondent was therefore
not free, during that period , to grant unilateral wage in-
creases. It did so, and it granted at least one increase that
was in excess of the wage ' increase offered the 'Union. On
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both counts, Respondent violated Section 8(a)(1) and (5)
of the Act.
D. Alleged Unlawful Refusal to Execute Written
Contract
Colavito and Harper testified that they had decided to
accept the Repondent's last offer some time prior to the
meeting on 14 March. While they did not explain their
failure to accept it on that date, it is clear that the reason
was not Respondent's failure to furnish certain informa-
tion that had been requested, inasmuch as it still had not
been furnished on 29 March when the offer was accept-
ed. They testified that they felt that negotiations had al-
ready dragged on too long and should be brought to an
end, and I credit that testimony. However, the Respond-
ent contends that because the Union's hastily prepared
written acceptance of Respondent's "last contractual
offer" pertained to an offer that was no longer outstand-
ing, no contract came into existence on 29 March 1985.
The Respondent has not proved any statement or
action by any person which can reasonably be interpret-
ed as an explicit withdrawal of the offer as it stood on 31
October 1983.
In this connection, Respondent argued that a letter
which its counsel sent to the Regional Director on 8
May 1985, substantially after the events at issue, either
constituted or proved withdrawal of the offer. In this
letter, counsel asserted that Respondent's final offer,
made on 31 October 1983, had been rejected by the
Union and was therefore "off the table." He went on:
Both offers were thus effectively rejected and
"off the table" as early as 1983. If there were any
doubt about the fact that the offers were not in
effect in 1985, it was cleared up on February 8,
1985 when bargaining resumed. At that time I ad-
vised Mr. Colavito that if new offers were to be
made by these companies, expiration dates different
than those previously offered would be involved,
i.e., the companies, desired contracts expiring later
than 1988 in the case of Koenig and later than 1987
in the case of Roman. There was considerable dis-
cussion between the two of us on this point and Mr.
Colavito inquired as to whether the companies
would make additional payments to the employees
for the past periods. I told him I would consider the
matter. When we next met on March 14, 1985, I ad-
vised that there would be no retroactive payments
for the past years. Thus, at that point, the previous-
ly rejected offers, calling for changes in 1983 and
1984 were impossible of performance and were no
longer being discussed.
This self-serving document is inconsistent with testi-
mony which counsel gave during the hearing to the
effect that new contractual termination dates were dis-
cussed between Colavito and himself; he did not make
any claim during the course of that testimony that he
had insisted that new dates had to be agreed on as a con-
dition to making of new offers by the Respondent. The
letter shows, if anything, that the offer was not dead, for
it contemplates the possibility of an affirmative as well as
a negative response to the suggestion, of new contract
termination dates, even in the face of a refusal of retroac-
tivity. The very question of retroactivity could not have
existed if only a negative response was possible. There
could not have been good-faith bargaining without the
possibility of two outcomes. If, in Respondent's contem-
plation, the offer of 31 October 1983 was really dead, it
could not have been resuscitated simply by changing the
contractual expiration date, and there would have been
nothing to discuss. Furthermore, counsel's assertion in
the, letter that rejection of retroactivity made perform-
ance impossible is not correct because partial perform-
ance was still possible, as I have indicated elsewhere in
this decision.
It cannot be overlooked that the position taken in this
letter is nowhere reflected in the extensive correspond-
ence between Israel and Colavito in late 1984 and early
1985 regarding a date for a negotiating session. That cor-
respondence contains not the slightest hint that the par-
ties are doing anything other than picking up precisely
where they left off on 31 October 1983. The basis on
which talks were to be resumed is not even mentioned,
undoubtedly because there was no need to talk about it;
both parties obviously assumed the last offer was still on
the table. The assumption is also implicit in Respondent's
request for a statement of the Union's revised demands, if
any, and the Union's decision not to furnish it. In re-
sponse to Israel's request of 26 November 1984, Colavito
responded, on 28 November: "We are flexible on virtual-
ly all items and look for a reasonable discussion." The
references to items and to reasonable discussion had to
relate to the offer on the table. Israel's assertion in the
letter of 29 November that he would. be the only repre-
sentative of Respondent at the resumed negotiation also
shows that both Colavito and he were speaking to each
other with reference to the terms of the last offer by Re-
spondent and that nothing startlingly new was expected
to be advanced by either party.
Respondent points to circumstantial factors which it
claims demonstrate that the offer was withdrawn or
could not,reasonably have been believed by the Union to
be still outstanding. However, the circumstances on
which Respondent relies are few and are all accompa-
nied by countervailing circumstances.
Respondent first points to the period of time ' which
elapsed between the finalization of its offer, 31 October
1983, and its acceptance by the Union 29 March 1985.
Respondent asserts that the hiatus was, so lengthy that
the Union could not reasonably have believed the offer
was still open. However, the hiatus, which I think must
be deemed to have ended with the Union's letter of 20
November 1984 requesting a meeting, was taken up with
litigation between the parties before the Board which
ought properly to have been resolved before the talks
continued, and the delay in getting started again until 8
February was due primarily to difficulties which Re-
spondent's counsel had in setting a date. In fact, the,
Union requested resumption of the negotiations while the
unfair labor practices proceeding was still undecided.
The parties went through a detailed, point, by' point,
review of Respondent's offer on 14 March 1985. Not a
ROMAN IRON WORKS 733
word ^ was said by Israel at that tithe' which suggested
that anyone acting on behalf of Respondent thought the
offer was withdrawn. If it had been withdrawn, their de-
tailed review of it would certainly have been a pointless
exercise. Except for the fact that the argument has been
made by Respondent in this proceeding, it would seem
almost unnecessary to add that on 14 March, while re-
viewing Respondent's offer, neither Israel nor Colavito
referred to the intervening interlude in terms of impasse.
In the light of all the surrounding circumstances, I do
not find that the evidence establishes the existence of a
situation in which a union has failed to accept an offer
within a reasonable time so as to justify the belief on the
part of the employer that it was no longer under consid-
eration by the Union. No "unconscionable" delay is in-
volved here. See Worrell Newspapers, 232 NLRB 402,
407 (1977); Crown Cork & Seal Co., 268 NLRB 1089,
1090 (1984), remanded '756 F.2d 659 (8th Cir. 1985).
Respondent also emphasizes the fact that by the time
negotiations were resumed the effective dates of com-
mencement of many of the benefits provisions had al-
ready passed. Examples of the items involved were paid
sick days, which were to become a benefit effective Jan-
uary 1984; major medical coverage, due to begin in June
1984; a'3-week vacation to accrue after 10 years of em-
ployment; and the offer of a holiday, which would be
either election day or a personal day, to become effec-
tive in 1983:
Quite ^ obviously a portion of these benefits had been
lost to the employees and the Union, perhaps irretrieva-
bly if no agreement for retroactive payment could be
worked out. A provision, for example, for furnishing a
pair of shoes a year might be considered to have been
lost completely for each year that had expired. Accrual
of vacation after 10 years would similarly be set back.
The Respondent views these as insurmountable prob-
lems, at least in this proceeding, but Colavito testified
that he did not.
Important as these provisions are, the fact that some
portion of their proposed effective periods had elapsed
without the- contract being ' entered into cannot reason-
ably be held to make the contract impossible of perform-
ance. Patently, a partial peformance was possible as of 29
March 1985; it is even possible as of the- date of this deci-
sion, for the original contract expiration date has not yet
been reached. Colavito testified, credibly, that in accept-
ing the offer he had in mind primarily the major parts of
the contract. On cross-examination, Colavito conceded
the obvious point that the dates had passed for some per-
formances or the implementation of new programs, and
that those provisions could only be effective for the re-
duced period of the remainder of the contract period. He
conceded that he had not considered the consequences of
the abbreviated contract period for some of these items
or the question of retroactivity -for the major medical
program. His basic concept was that in an on-going rela-
tionship difficulties caused by delay in implementation of
these provisions would be minor and easily capable of
resolution. He felt justified in this belief by the history of
his dealings with Israel respecting another of the compa-
nies for whom Israel negotiated, Koenig Iron Works,
Inc. He testified without being controverted that in those
negotiations, Koenig had offered an annuity program in
1983, and the contract provision was for pension contri-
butions to begin 6 October 1983, but that Koenig's repre-
sentative had said that it would become effective when
the agreement was- signed. Though there was nothing in
writing, it was agreed across the table that contributions
would commence on execution of the agreement. Cola-
vito also cited statements by .Respondent's counsel that
Respondent would carry the medical coverage for the
employees for 3 months, another provision which was
not in writing. He contended that there was ample
reason, therefore, to believe that once agreement had
been reached on major items, details such as these could
be worked out.
Colavito was uncertain, in his testimony on cross-ex-
amination, as to whether, during the review of Respond-
ent's offer at the session of 14 March 1985, he had read
off the effective dates of the proposals. I would conclude
that he had not. It is a point which I regard of little sig-
nificance, accepting, as I do, his testimony respecting his
approach to the negotiations. Furthermore, some prob-
lems were more apparent than real. Colavito believed
that increases granted unilaterally during negotations had
exceeded Respondent's offers to the Union, thus eliminat-
ing any problem of retroactivity. No problem really
arose with regard to an offer by Respondent to furnish
one pair of workshoes per year; the effective date had
not been discussed, and,Colavito was not sure that the
item had even been agreed on.
I find Colavito's testimony consistent with the practi-
calities of the bargaining situation as it existed at the
time. Furthermore, ' the mere fact that an offer contains
proposed effective dates, as would be expected, does not
make time of the essence in the contract negotiations. I
credit Colavito's testimony that he viewed such matters
as items which could be adjusted by ancillary agreements
modifying the contract as broadly conceived and that the
contract in this instance was, in all its major features, a
viable contract insofar as he was concerned.
I regard it as significant that Israel, having on 14
March 1985 agreed to a further negotiating session on 29
March 1985, based his refusal at the outset of the meet-
ing to proceed with negotiations entirely on the asserted
lack of any obligation on the part of Respondent to bar-
gain with the Union. He never said that there was no
proposal on the table for discussion. ,
.Accordingly, I find that the conduct and statements of
the negotiators, in and, out of'the meetings; the conduct
of negotiations by, Respondent's counsel in the absence of
Respondent's principal or other representative; and the
detailed, point-by-point review and recapitulation on 14
March 1985 of the offer made by Respondent as of 31
October 1983, all establish that that offer was still on the
table and capable of acceptance by the Union. The
Union's acceptance of 'it brought a contract into being.
Of course, it was obvious from Israel's statements and
conduct that Respondent would not sign such an agree-
ment, which excused the Union from the necessity of ac-
tually putting it in written form and presenting it' for sig-
nature. Respondent having withdrawn= recognition, the
Union was not required to perform a futile act.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Israel 's assertion that no contract existed meant that
none would be signed by Respondent . In refusing to exe-
cute any contract embodying the terms of the collective-
bargaining agreement, which had been arrived at, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
E. Alleged Unlawful Withdrawal of Recognition
The Respondent contends that it declined to bargain
further with the Union because the Union no longer rep-
resented a majority of the employees in the unit. Such
concern by an employer to protect the rights of its em-
ployees under the Act is frequently viewed with suspi-
cion. See Brooks v. NLRB, 348 U.S. 96, 103 (1954). In
justification of its action, which occurred on 29 March
1985 , Respondent points to circumstances which it as-
serts created doubt as to the Union's status as the repre-
sentative of its production and maintenance employees. It
cites the fact that in all the negotiations between it and
the Union , no employees ' committee ever sat in on a bar-
gaining session ; there were no strikes or job actions; and
there was an apparent lack of communication or contact
between the Union and the employees , judging from the
Union's requests for information.
These are not, however , the kind of objective facts
which prove that the Union had ceased to represent a
majority of the employees in the unit or which justify a
reasonable and bona fide belief on the part of an employ-
er that the Union had lost its majority. In this case, the
evidence points in the opposite direction. Colavito testi-
fied that he received reports from employees when a
wage increase went into effect , though he did not have
all the details regarding all the employees . If the matter
seems obscure, it is because there is little evidence in the
record on the point . But what there is, indicates that the
Union continued to represent the majority.
Notwithstanding its present stance, the Respondent
seems to have thought so also, and at all the times that
counted. The Board directed the Respondent to bargain
with the Union as the representative of the employees in
the unit. The Respondent did so, right up to and includ-
ing 29 March 1985 . Negotiations that had lain dormant
during 1984, pending the decision in proceedings brought
before the Board regarding the Respondent and other
companies whom Israel represented in negotiations with
the Union , were resumed and proposals and counterpro-
posals were discussed . In two of the three meetings held
in 1985, Respondent negotiated with the Union without
raising any question about the Union's right to represent
the unit . Respondent furnished information in response to
written requests from the Union dated 18 January and 24
January 1985 in the form of a copy of data furnished to
Israel by Respondent by letter dated 15 February 1985
and by a letter from Israel to the Union dated 4 March
1985.
In his posthearing brief, Respondent 's counsel sets
forth a tortured argument to the effect that the obliga-
tion to bargain arose , not from a factual finding by the
Board that there was a continuing relationship between
the Union and the employees, but "purely from the need
to fashion a remedial order rectifying violations of, the
Act, committed a number of years ago." Even if that
were true, and forgetting for the moment that if Re-
spondent committed violations years ago it must assume
all the consequences of its violations ,, however long they
may reverberate , the fact remains that there is no evi-
dence that circumstances have changed or that any valid
reason exists to revoke the remedy. Compliance with a
bargaining order is not in the discretion of the employer
who has committed wrongdoing . Moreover, I am not at
all certain that the finding of a continuing relationship
arose "purely" from the necessity to fashion a remedy at
a point in the remote past . The last decision rendered by
an administrative law judge , which is pertinent, was
issued as recently as 3 January 1985 and was affirmed by
the Board on 20 May 1985 . It directed Respondent to
cease and desist from refusing to bargain collectively
with the Union by unilaterally granting wage increases
to employees during the course of collective -bargaining
negotiations and Respondent was directed to notify the
Union of any proposed wage increases.
The uncontroverted evidence in the record is that the
parties resumed negotiations in February , after an ex-
change of correspondence in which no question of rec-
ognition was raised at all; this by itself suffices to prove
that Respondent recognized the Union as the representa-
tive of the employees in the unit.
Thus, the Respondent negotiated with the Union on
the basis of its recognition of the Union as the collective-
bargaining representative of the employees in the unit
and furnished information in response to written requests
from the Union as late as 4 March 1985. Thereafter, Re-
spondent promised to furnish still more information.
Harper testified that on 14 March 1985, the discussion re-
specting Respondent ended with Israel 's agreement to
get back to Colavito on some of the union counterpro-
posals which he had not rejected completely. Therefore,
whatever happened to change the Respondent's ideas
about the Union's right to bargain for the unit had to
have occurred between the end of the meeting on 14
March 1985 and the beginning of the meeting on 29
March. That is the period of time as of which Respond-
ent's good faith in asserting doubts regarding the Union's
right to represent the employees must be determined.
NLRB v. Windham Community Memorial Hospital, 577
F.2d 805, 811 (2d Cir. 1978), enfg. 230 NLRB 1070
(1977); NLRB v. Washington Manor, 519 F.2d 750, 753
(6th Cir. 1975).
The Respondent offered no evidence to show that a
change had truly occurred. On the contrary, Israel testi-
fied that he made telephone calls from the meeting to
obtain information that Colavito wanted about a Roman
employee named Rufus Ziegler , and testified that he may
have made telephone calls to get information on 29
March . He was not sure whether it was the meeting of
14 or 29 March. That would mean that the right of the
Union to information , and Respondent's obligation to
furnish it, was still recognized as late , possibly, as 29
March, a, position altogether inconsistent with the Re-
spondent's present contention that there was no obliga-
tion to bargain.
Respondent seemed to base its attempted justification
for withdrawing recognition on supposed facts which are
not in evidence or upon facts in evidence which do not
ROMAN IRON WORKS
support its position. Israel testified 'that he told Colavito
on 29 March that after reviewing the decision of the ad-
ministrative law judge, which had been issued on 3 Janu-
ary 1985 "and based on what I had observed now for a
couple of years and in these negotiations, we had no fur-
ther obligation to bargain." He never spelled out What
he had observed over the course of the preceding 2
years or in the current negotiations which purportedly
discharged the obligation to bargain; why such observa-
tions had not been pressed on the Board, or, if they had
been, why the Board had not been impressed; or why, in
view of that background, he had entered into negotia-
tions at all in 1985. Certainly, the administrative law
judge's decision provides no justification for discontinu-
ing negotiations and is not even cited in Respondent's
posthearing brief as justification for the withdrawal of
recognition.
It is asserted in Respondent's posthearing brief that
both sides sat down on 29 March with the understanding
that there was no obligation on the part of either to bar-
gain . However, Respondent's counsel had testified that
when he expressed his view in that regard, Colavito pro-
tested vehemently:
Bill said why didn't you tell me this? Why didn't
you tell me this back in November and I said A) in
November we had no decisions. I said to him quite
frankly we the companies and I have been mulling
this thing over, what are our rights and this is the
conclusion we finally come to.
Respondent's counsel testified that he also pointed out
to Colavito that "we have no evidence whatsoever at
this point in time that 455 actually represents the em-
ployees." He cited the absence of employees from any of
the bargaining sessions, the absence of strikes or job ac-
tions, and made reference to the asserted fact that,
"There's all sorts of petitions to decertify and to go to
other unions."
But the burden at that point in time was not on Cola-
vito, who in any event responded promptly that he did
represent the employees and was not obligated to bring
them to the bargaining sessions. The burden was on the
Respondent to show justification for its withdrawal of
recognition, either by evidence that the majority had in
fact evaporated or that Respondent had a good-faith
doubt of the continuance of the Union's majority, based
on objective considerations. The Union enjoys a rebutta-
ble presumption that the majority continued. Stratford
Visiting Nurses Assn., 264 NLRB 1026 (1982). The failure
of any of the decertification petitions to become effective
would seem to be the kind of circumstance that would
suggest to an employer that they did not have wide-
spread support and that the Union still represented a ma-
jority of the employees in the unit. The mere fact that a
decertification petition is filed is insufficient to afford
reasonable doubt of the continuance of the Union's ma-
jority; proof is needed that the petition was favored by a
majority of the employees. Dresser Industries, 264 NLRB
1088 (1982).
735
CONCLUSIONS OF LAW
1. The Respondent , Roman Iron Works, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, Shopmen's Local Union No. 455, Inter-
national Association of Bridge, Structural and Ornamen-
tal Iron Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union is the collective bargaining representa-
tive of the following appropriate unit within the meaning
of the Act:
All production and maintenance employees of the
Respondent, including plant clerical employees em-
ployed at its plant, exclusive of office clerical em-
ployees, guards and supervisors as defined in Sec-
tion 2(11) of the Act.
4. The Respondent violated Section 8(a)(1) and (5) of
the Act:
(a) By refusing, on 29 March 1985, to recognize that a
collective-bargaining agreement had been arrived at by
reason of the Union's acceptance of the Respondent's
comprehensive contractual offer of 31 October 1983 and
by refusing to execute a collective bargaining contract
embodying the terms of the agreement reached between
Respondent and the Union.
(b) By implementing changes in wages, hours, and
working conditions of employees in the unit, without af-
fording the Union an opportunity to negotiate and bar-
gain as the exclusive representative of the Respondent's
employees with respect to such changes.
(c) By implementing wage increases in excess of the
amounts of increases offered by Respondent to the Union
during collective bargaining.
(d) By withdrawing recognition of and refusing to bar-
gain with, the Union as the exclusive collective-bargain-
ing representative of the unit.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(1) and (5) of the Act, I
shall recommend that Respondent be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. I
shall recommend that Respondent be directed to execute,
on request by the Union,' a collective-bargaining contract
reflecting the agreement arrived at when the Union ac-
cepted the Respondent 's contract offer of 31 October
1983. Because of the nature of the Respondent's other
violations of the Act, whereby it changed existing wage
rates and, in at least one instance , granted a wage in-
crease to excess of the amount of increase offered to the
Union during negotiations, I shall recommend that in any
job category where Respondent is currently paying more
than the wage rate offered to the Union and agreed to in
the contract, the offer and the contract shall be deemed
modified to reflect the higher wage rate.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A special provision must also be made with respect to
the duration of the contract . Had the contract been
drawn up and executed within a reasonable period of
time after 29 March 1985 , when the Union accepted Re-
spondent's outstanding contract offer, the contract would
have had an expiration date of 31 December 1987 and
would have had a total duration of 2 years and 9 months.
The time which has elapsed during the pendency of the
instant proceedings should not be lost to the parties. Ac-
cordingly, I will recommend that the contract, when
signed, have a fixed duration of 2 years and 9 months
from the date on which it is executed.
[Recommended Order omitted from publication.]