Tectonic Industries

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 149 (N.L.R.B. 1984)

TECTONIC INDUSTRIES
Tectonic Industries, Inc. and International Union,
United Automobile, Aerospace, Agricultural Im-
plement Workers of America (UAW) Local 376.
Cases 39-CA-721, 39-CA-1179, and 39-CA-
1311
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 March 1983 Administrative Law Judge
James F. Morton issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering 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 exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
' The General Counsel filed exceptions to several of the judge's factual
and legal findings. We note that the judge made certain inadvertent factu-
al errors which we correct as follows. There is no evidence in the record
to support the judge's statement that the Union's negotiating committee
"harbored some resntment against Respondent" for the Respondent's
1979 position on providing Christmas turkeys to employees. The judge's
statement that about I May 1979 "Respondent's president referred to Re-
spondent's attorneys" the April 1979 agreement regarding pensions is leas
than fully precise: in mid to late April 1979, the Respondent's president
telephoned his attorney regarding setting up a pension plan, but the fint
time he sent to his attorney a copy of the agreement. plus an outline of a
typical United Auto Workers defined benefit pension plan, was by letter
dated 21 November 1979. The Respondent's Vice President Afif did not
tell Union Shop Chairman Silva that "all bets are off." Afif made that
comment to a representative of the company which supplied the Re-
spondent with uniforms. Barber testified that Afif's comments regarding
the Respondent's financial records and the Union being bullheaded were
made 30 March 1982, not 26 March 1912.
The language of the April 1979 collective-bargaining agreement does
not appear to have given the Respondent "approximately a year to
present the Union with a draft of a pension plan along UAW lines," as
the judge characterized the contractual language. The pension plan
clauses of the April 1979 contract and the Respondent's accepted 4 April
1979 settlement offer read in relevant part as follows: "The COMPANY
and the UNION agree to establish a regular pension plan to replace the
former profit sharing retirement plan. The basic plan agreed to a 6.00 per
month per year of service for the first year, 6.50 the second year, and
7.00 the third year. The UNION and the COMPANY to work out the
precise plan provisions within approximately one year after the signing of
this agreement .... The effective date of this new pension plan will be
January 1, 1976 .... " (Arts. 31.1-31.2; 31.4); "Respondent proposes to
replace the current profit sharing retirement plan for a regular pension
plan with features essentially illustrated as per the attached UAW sheet
dated December 13, 1978 BI through B7. Final details to be worked out
by Respondent's attorneys drawing on assistance from Union sources as
required. The basic plan agreed to is S6.00 for the first year, S6.50 the
second year, and $7.00 the third year. The effective date shall be January
1, 1976.... "
These inaccuracies in factual recitation and interpretation do not indi-
vidually and collectively affect our adoption of the judge's legal conclu-
sions to dismiss each of the allegations of the complaint.
' 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 ua that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
270 NLRB No. 27
conclusions2 and to adopt the recommended
Order.s
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
I In light of our affirming the judge's findings and conclusions, we
deny the General Counsel's motion to reopen the proceedings, consoli-
date the instant case with Case 39-CA-1410, and schedule further hear-
ing.
The General Counsel also filed · motion to defer decision and the Re-
spondent filed an opposition thereto. We deny the General Counsel's
motion to defer.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. On
July 2, 1981, International Union, United Automobile,
Aerospace, Agricultural Implement Workers of America
(UAW) Local 376, herein called the Union, filed the
unfair labor practice charge in Case 39-CA-721. On July
22, 1981, the General Counsel of the National Labor Re-
lations Board, on behalf of the Board, issued a complaint
in that case against Tectonic Industries, Inc., herein
called Respondent. On July 31, 1981, Respondent filed
its answer to that complaint. The basic issue presented
by the pleadings in that case is whether or not Respond-
ent has failed and refused, since about May 7, 1981, to
negotiate with the Union for a pension plan to cover
those employees of Respondent represented by the
Union. That complaint further alleges, and Respondent's
answer also denies, that Respondent's asserted failure to
negotiate on that matter constituted a violation of Sec-
tion 8(aX)(1) and (5) of the National Labor Relations Act.
On May 24, 1982, the Union filed an unfair labor prac-
tice charge in Case 39-CA-1179 and amended it on June
18, 1982. On July 2, 1982, a complaint issued in that case
against Respondent. On July 13, 1982, Respondent filed
its answer to that complaint. The central issues, raised by
the pleadings, in that case are:
1. Whether Respondent, in violation of Section 8(a)(1)
of the Act, unlawfully interrogated its employees as to
their support for the Union, announced new benefits for
those employees, or engaged in other conduct to dis-
courage their support for the Union.
2. Whether Respondent unilaterally instituted a tuition
refund program for its employees, changed its medical
and dental insurance program for them, or bypassed the
Union in dealing directly with them, in violation of Sec-
tion 8(aX1) and (5) of the Act.
3. Whether the totality of Respondent's conduct in ne-
gotiations with the Union established that it had, in vio-
lation of Section 8(a)(l1) and (5) of the Act, bargained
with the Union with no intent of reaching an agreement
with it on the terms and conditions of a renewal collec-
tive-bargaining agreement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Whether a strike by employees represented by the
Union was caused or prolonged by alleged unfair labor
practices of Respondent.
On September 3, 1982, the Union filed the unfair labor
practice charge in Case 39-CA-1311 against Respondent.
On October 15, 1982, a complaint issued in that case.
That complaint was amended at the hearing. Respond-
ent's answer to that complaint, as amended at the hear-
ing, placed in issue the following matters in that case:
1. Whether the Union made an unconditional applica-
tion on behalf of 33 named striking employees, alleged to
be unfair labor practice strikers, to return to work.
2. Whether Respondent, in violation of Section 8(a)(l)
and (3) of the Act, unlawfully failed and refused to make
nondiscriminatory offers of reinstatement to those 33
named employees.
The hearing was held before me in Hartford, Con-
necticut, on November 8, 9, 10, and 30 and on December
1, 1982.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and by Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Based on the pleadings as amended, I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
It will be helpful to outline Respondent's overall oper-
ations and related matters in order to put in context the
evidence presented in this case bearing on the discussions
between Respondent and the Union about a pension plan
for the unit employees and on the negotiations which
took place in 1982 on a renewal collective-bargaining
agreement.
Respondent is engaged in the business of extruding
plastic sheets for sale to manufacturers of eyeglass
frames. In the 1970s, Respondent's operations were locat-
ed in an old building in East Berlin, Connecticut. Re-
spondent then had three shareholders. In September
1976, friction developed among these shareholders which
resulted in a suit by two of them against the third (now
Respondent's president and its sole shareholder). Re-
spondent was made a party to that civil action.
In 1980, Respondent moved its operations to its
present facility, a new building in Berlin, Connecticut.
That new facility cost in excess of $2 million and was
heavily mortgaged. In 1981, its officials began to make
numerous trips to Europe; the uncontroverted testimony
offered thereon established that they were attempting to
build up an overseas market but failed.
Respondent's sales in the 1970s had been increasing
substantially from year to year, and its profits too. It was
obviously on the expectation that this trend would con-
tinue indefinitely that Respondent undertook the con-
struction of its present facility. In 1976 and 1977, when
Respondent's employees were unrepresented, it had in
effect a profit-sharing plan. However and notwithstand-
ing that its profits were increasing, it made no contribu-
tions to that profit-sharing plan in 1976 and 1977. It was
then "hoarding" its profits in anticipation of expenses to
be incurred in the erection of the new building and for
future business expenses.
On November 8, 1978, the Union was certified in Case
l-RC-15902 as the exclusive collective-bargaining repre-
sentative of the approximately 35 full-time and regular
part-time production and maintenance employees, includ-
ing lab and sample technicians, employed by Respondent
but excluding all office clerical employees, professional
employees, managerial employees, foreman, guards and
supervisors as defined by the Act.
On its certification, the Union entered into negotiations
with Respondent for a collective-bargaining agreement
covering that unit of employees. Agreement thereon was
reached on April 4, 1979, when Respondent's president,
Charles Merritt, entered into the negotiations directly
with the Union's representatives. Prior to that meeting,
Respondent and the Union had agreed on many terms
and conditions of their first contract. The items unre-
solved prior to April 4, 1979, involved the Union's de-
mands that a pension plan be established along "UAW
lines" in lieu of the profit-sharing plan Respondent had
had in force, a demand by the Union that Respondent
furnish uniforms for the unit employees, a further
demand that the employees receive cost-of-living adjust-
ments in their wage rates (COLA), and finally a demand
that Respondent continue to provide each unit employee
with a gift turkey each Christmas. Respondent's presi-
dent acceded to the first three of those demands but re-
fused the last. The Union dropped its demand as to the
"gift" turkeys but, as was evident from more recent ne-
gotiations, the Union's negotiating committee harbored
some resentment against Respondent for the position it
took in 1979 on that demand.
It is undisputed that numerous unresolved grievances
had "piled up" since the collective-bargaining agreement
was signed in early 1979. In February 1981 the Union
met with Respondent's president to voice its concern on
this matter and to complain about related matters, includ-
ing claims that Respondent was not honoring the agree-
ment in the matter of furnishing uniforms in a timely
manner, in subcontracting out janitorial work, and in
holding up agreement on job descriptions. Respondent's
president testified that he expressed concern at that meet-
ing over "material efficiency." His account thereon ap-
peared confused in that he related that that concern ante-
dated the Union's certification while later stating that the
problem began in 1979 (obviously after the Union's certi-
fication).
By mid-1981 as is evident from the data set out below,
Respondent's operations had taken a serious turn down-
wards. Respondent's president characterized the matter,
in employee meetings held then, as "a survival situation."
He told them that the "we versus they" syndrome must
150
TECTONIC INDUSTRIES
be eliminated if Respondent is to survive. He reported to
them that "going through channels" did not work.
In June 1981 Respondent's president met with union
representatives and told them he wanted the Union to
hold off on grievances and on its demand for job de-
scriptions. When the Union replied that it wanted Re-
spondent to abide by the contract then in force, Re-
spondent's president answered that Respondent "won't
have this problem, come April." The quote is an obvious
reference to the fact that the contract was scheduled to
expire in the following April.
The Union requested Respondent about September
1981 to let it examine Respondent's financial records to
verify that Respondent was then in a "survival situa-
tion." Respondent rejected that request.
In the fall of 1981, Respondent cut the salaries of its
managerial and office staff and reduced their vacation,
holiday, and fringe benefits. In December of that year, it
settled the lawsuit, begun in 1976 by two of its three
shareholders. Under the settlement terms, Respondent
delivered title to them of its old building, with a book
value of $600,000, and agreed to pay each of them sever-
al hundreds of thousands of dollars in exchange for a
covenant not to compete. As is also obvious, Respondent
had incurred considerable legal expenses in that lawsuit.
Respondent's president testified that, in 1981, the re-
cession took place and Respondent's business slowed
down markedly. Its gross sales fell from $9.3 million in
1980 to $5.6 million in 1981. In 1981 Respondent lost
$580,000 in its operations. Taking into account other dis-
bursements it was required to make, Respondent lost a
total of $950,000 in the fiscal year ending August 31,
1981. In the 6-month period ending February 28, 1982,
Respondent showed a $265,000 loss. Its president then
testified without contradiction that Respondent has since
March 1, 1982, incurred further losses. t
As of the hearing, Respondent has been able to receive
its raw materials from suppliers on a COD basis coupled
with an additional payment designed to reduce its large
indebtedness for prior shipments. Respondent has also ef-
fected several managerial changes since 1981. On the
recommendation of bank officials, a consultant was
brought in during February 1981 to ensure that Respond-
ent's records were orderly. He left in early August 1981
shortly after another consultant was brought in. That
second consultant became vice president of operations
and served in that capacity until January 1982. A third
individual then took over the responsibility for Respond-
ent's manufacturing operations and served until August
1982. Respondent's present plant manager has served in
that capacity since January 18, 1982.
B. The Pension Plan
The General Counsel contends, as alleged in the com-
plaint in Case 39-CA-721, that Respondent has, since
about May 7, 1981, failed and refused to negotiate with
I The General Counsel at one point sought to challenge Respondent's
evidence thereon by highlighting the fact that Respondent's records
showed that large sums were expended by Respondent's officials on over-
seas travel. When it became evident that these expenses were related to a
vain effort to build up markets overseas for Respondent's products, the
General Counsel no longer pursued that course.
the Union respecting the Union's request of Respondent
to negotiate a pension plan for the unit of employees rep-
resented by the Union. Respondent asserts that it has ful-
filled its bargaining obligations in every respect in its dis-
cussions with the Union on the subject of a pension plan.
As noted earlier, Respondent and the Union entered
into their first collective-bargaining agreement in early
1979. By its terms, that contract went into effect on
April 5, 1979, and continued in force until April 5, 1982.
Article XXXI of that contract was entitled "Pension
Plan." Subsection 1 thereunder provided that a regular
pension plan would be established to replace the former
profit-sharing retirement plan. Subsection 2 provided that
"The basic plan agreed to is $6.00 per month per year of
service for the first year, $6.50 for the second year and
$7.00 the third year. [Respondent and the Union will]
work out precise plan provisions within approximately
one year after the signing of this agreement."
Those subsections of article XXXI of the 1979-1982
contract were essentially but restatements of Respond-
ent's settlement offer of April 4, 1979, which was accept-
ed by the Union and which read in relevant part substan-
tially as follows:
Respondent proposes to replace the current profit
sharing retirement plan for a regular pension plan
with features essentially illustrated as per the at-
tached UAW sheet dated December 13, 1978 BI
through B7. Final details to be worked out by Re-
spondent's attorneys drawing on assistance from
Union sources as required. The basic plan agreed to
it $6.00 the first year, $6.50 the second year and
$7.00 the third year.
It was that language from the April 4, 1979 settlement
offer that Respondent's president referred to Respond-
ent's attorneys about May 1, 1979. Respondent's attor-
neys prepared three different drafts of the pension plan
for Respondent and each time suggested to Respondent
that each of those drafts be forwarded to the Union for
its comments. The first draft was dated April 10, 1980;
the second, May 6, 1980; and the third, July 1, 1980. The
first two drafts followed closely the UAW sheets re-
ferred to in Respondent's April 4, 1979 proposals. These
drafts, for some unexplained reasons, were returned by
Respondent to its attorneys for revision. As discussed
below, the third draft was submitted to the Union and it
voiced objections thereto, also as discussed below.
The Union's representatives, throughout 1979 and
early 1980, repeatedly asked Respondent to provide them
with the draft of the pension plan that had been agreed
upon. Each time Respondent replied that the draft was in
the process of being prepared or was being revised by its
attorneys.
In July 1980 Respondent gave the Union a 22-page
typewritten document which contained 17 separate arti-
cles which comprised its draft of the proposed pension
plan. The Union forwarded that draft to an actuarial
consultant at the office of its International. On October
1, 1980, the actuarial consultant wrote the Union and set
out 24 separate points in the draft submitted by Respond-
ent which, in his opinion, needed to be changed in order
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to conform to the agreement the parties reached on
April 4, 1979. For example, the actuarial consultant
noted that article XI of the proposed pension plan by
Respondent provided that full responsibility for the ad-
ministration of the plan shall be in the hands of Respond-
ent. According to the UAW actuarial consultant, "the
typical UAW pension plan will provide for a Company
and Union board of administration." As a further exam-
ple of the observations made by the actuarial consultant,
and one which is immediately relevant to ensuing discus-
sions as noted below, is that set out at comment 14 in his
October 1, 1980 report. There, he observed that the plan
drafted by Respondent provided that the spouse of a de-
ceased annuitant shall receive 50 percent, not 60 percent,
of the annuity on the death of the annuitant. The plan
drafted by Respondent had provided for but a 50-percent
survivorship instead of the 60 percent specified in the
typical UAW plan referred to in the settlement offer ac-
cepted on April 4, 1979, as discussed above.
The Union forwarded the observations of its actuarial
consultant to Respondent in October 1980.
In September 1980, Respondent had hired Bruce Meek
as its vice president of human resources, apparently a
newly created position. One of the responsibilities given
Meek was to set up the pension plan in conjunction with
the Union. He met with the union representatives in Oc-
tober 1980 and it was at that point that he received from
them the written comments of the UAW actuarial con-
sultant. Thereafter, Meek reviewed the corporate files on
the pension plan. On January 14, 1981, he wrote a letter
to the Union's business agent and attached to that letter a
detailed response to the comments offered by the UAW
actuarial consultant. Thereby, Respondent accepted a
number of the observations of that actuarial consultant as
valid and, on that basis, revised its proposals to be in
accord with the related comments suggested by the
Union. As to others of those comments, Respondent
noted that ERISA provisions obviated the need for the
suggested revisions thereon. On the remaining comments,
Respondent suggested that further discussions between
Respondent and the Union would be needed to get final
agreement. Respecting the comments on the spouse sur-
vivorship percentage, Respondent wrote that it was of
the view that the survivorship percentage should remain
at 50 percent and should not be 60 percent as the Union
wanted.
Meek testified that, in early April 1981, he met with
union representative Robert Madore who advised him
that the Union was preparing its response to Meek's
views. Agreement was reached then to hold a meeting in
late April between Respondent and the Union to discuss
the pension plan. The late April meeting was canceled,
apparently by Meek for business reasons and it was not
until May 1981 that the parties met again to discuss the
pension plan.
The General Counsel presented three witnesses in sup-
port of the allegation that Respondent, since May 7,
1981, failed to bargain collectively with the Union re-
specting its pension plan proposals. The Union's business
agent, Robert Madore, testified that about May 26, 1981,
a meeting was held to discuss the Union's objections to
the draft of the pension plan that Respondent had sent it
in July 1980. That draft, inter alia, provided for a survi-
vorship option of 50 percent of the annuity and not 60
percent as is usual in UAW pension plans. Madore testi-
fied that the Union voiced this objection to Respondent's
vice president, Bruce Meek, who told him that Respond-
ent would offer only 50 percent. On cross-examination,
Madore testified that the Union then offered to accept a
55-percent survivor's option and that Meeks rejected that
offer. Madore further testified that he then told Meeks
that the Union would file an unfair labor practice charge
against Respondent. He testified also that Meek then
closed the meeting by saying that the Union could take
the matter to "Court."
The General Counsel's second witness, the Union's
shop chairman, Robert Silva, testified that that meeting
occurred in about April 1981. He related that the
Union's International representative Leonard Dube told
Meek the survivorship percentage should be 60 percent
and that Meek replied that Respondent was offering 50
percent. Silva testified that Dube told Meek that that
matter "wasn't a negotiable item" and that after "argu-
ment back and forth" Meek closed his books and said the
matter would be settled in court.
The General Counsel's third witness, Raymond Zie-
gler, testified that he attended a meeting in May 1981 as
a grievance committeeman for the Union, that Dube and
Meek got into an argument over the death benefit provi-
sions and "what approximately 60%" meant, that Dube
told Meek not to "pussyfoot around," and that Meek got
upset, slammed his notebook closed, and ended the meet-
ing by telling the Union that Respondent would see it in
court.
Meek testified for Respondent respecting that meeting.
His account is generally in accord with that of the wit-
nesses called by the General Counsel except that he said
it took place on May 7, 1981, and that he denied that the
Union offered to compromise at 55 percent. I credit
Meek's account because the Union's shop chairman testi-
fied that Meek was told that the 60-percent figure was
not negotiable.
The Union filed the unfair labor practice charge in
Case 39-CA-721 on July 2, 1981. In December 1981 the
Union's representatives met with various representatives
of Respondent, including its labor counsel, to discuss a
large number of outstanding grievance and arbitration
matters. In the course of that meeting, Respondent's
labor counsel informed the Union, respecting the pension
plan, that he would get back to them after the first of the
year.
Negotiations for a renewal collective-bargaining agree-
ment began in early 1982. During the course of those ne-
gotiations, many meetings were held between the Union
and Respondent. At some of those meetings, the subject
of the pension plan was discussed. Testimony thereon is
included among the discussion in the next subsection.
C. Negotiations for a Renewal Contract
The General Counsel contends that Respondent par-
ticipated in negotiations with the Union for a renewal
contract in early 1982, but that it did so with no inten-
tion of reaching agreement with the Union as to the
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TECTONIC INDUSTRIES
terms thereof. In support of that contention, the General
Counsel relies on the evidence discussed in this subsec-
tion and also on the evidence discussed in other subsec-
tions. In essence, the General Counsel asserts that Re-
spondent engaged in stalling tactics; that it delayed inor-
dinately the pension plan discussions as reported in the
preceding section; that Respondent went through only
the motions in early 1982 of negotiating a renewal con-
tract; that, in the course of discussing the terms of a re-
newal agreement, Respondent presented a final offer to
the Union which was substantially less in value than a
previous offer it had made; that Respondent negotiated
directly with the unit employees while bypassing the
Union in an effort to undermine the Union's bargaining
status and engaged in other coercive conduct towards
that aim. Respondent maintains that the totality of the
evidence demonstrates that it was making every reasona-
ble effort to reach agreement with the Union and that it
was the Union which took an unyielding position during
the 1982 negotiations. In this subsection, the facts bearing
on the 1982 negotiating meetings are set out.
As noted earlier, the first collective-bargaining agree-
ment reached by the Union and Respondent was execut-
ed in 1979 and, by its terms, was scheduled to expire on
April 5, 1982. On January 22, 1982, the Union wrote Re-
spondent requesting extensive information it said it
needed to formulate its contract proposals. The informa-
tion it sought was set out on a questionnaire enclosed
with that letter. On February 17, 1982, Respondent sent
the Union the completed questionnaire and confirmed ar-
rangements made in the interim by which the renewal
contract negotiations would begin on February 26, 1982,
at a location near Respondent's plant. At the hearing
before me, the parties stipulated that Respondent and the
Union met for collective-bargaining negotiations on Feb-
ruary 26; on March 5, 8, 11, 15, 19, 23, 24, 25, and 31;
and on April 1, 2, 4, and 5, 1982. They stipulated also
that the unit employees went out on strike on April 5
and that negotiations were held also on April 16, May
11, June 19, July 9, August 27, and October 28, 1982.
Testimony was received as to what transpired between
the Union and Respondent's representatives during the
course of those negotiations. No material conflicts were
contained among the respective accounts.
At the February 26 negotiating session, the Union sub-
mitted to Respondent its contract demands, set out on
five typewritten pages. The Union and Respondent also
established negotiating subcommittees on that date, one
of which was responsible for the review of written job
descriptions for language changes and, where applicable,
upgradings. Respondent and the Union agreed to first
discuss "all the non-economic items" and to reserve the
money items for discussion "close to the conclusion of
negotiations."
The next meeting was held on March 5. At that meet-
ing, a consultant retained by Respondent made a presen-
tation, using charts to show that Respondent had suf-
fered significant monetary losses over the preceding 3
years, to show that foreign competition had made serious
inroads on its sales, and to demonstrate that immediate
productivity efficiency had to be achieved. Respondent
advised the Union that its financial books were available
for examination by the Union's auditors and that it was
making this offer so that the Union could satisfy itself as
to the precariousness of Respondent's financial condition.
Respondent furnished the Union, pursuant to the Union's
request, with copies of the charts it had used in making
its presentation. Respondent also gave the Union its pro-
posed contract revisions. Those proposed revisions are
now summarized:
1. To remove the laboratory and sample employees
from the bargaining unit (Respondent later withdrew
that proposal and the unit remained unchanged).
2. No change in the union-security or dues-checkoff
provisions or the management-rights provisions.
3. Respondent may hire 3 college students as trainees
for supervisory positions instead of 1 such trainee for
every 25 bargaining unit employee. (There were then
about 35 bargaining unit employees in Respondent's
employ.)
4. A reduction in the number of holidays from 12 to 9
each year.
5. The leave of absence section to be modified to pro-
vide that such leave shall be granted only in emergencies
and apparently not merely on request.
6. Employees may be transferred temporarily to a dif-
ferent job without loss of pay.
7. Language changes in the grievance/arbitration pro-
cedures, e.g., proposed reduction in the number of stew-
ards who would be authorized to leave their work areas
to handle grievances during working hours.
8. The use of the American Arbitration Association as
the arbitrator rather than a mutually acceptable arbitra-
tor.
9. Language changes in the seniority and layoff sec-
tions of the contract, e.g., a proposal that Respondent
shall give only 3 days' notice of layoff instead of a
week's notice.
10. A proposal that employees who accepted a new
job pursuant to the bidding procedure may not bid again
on another job for a 3-month period.
11. Language changes in certain of the subsections
governing hours of work, break periods, and other "non-
economic areas."
12. The extension of the probationary period for new
employees from 60 to 90 days.
13. A reduction in vacations, e.g., to 3 weeks for em-
ployees with 10 years of service, instead of 4 weeks' va-
cation.
14. A 3-year wage freeze.
15. Elimination of COLA.
16. Respondent will contribute 50 percent towards the
health insurance premiums, instead of paying it all.
17. The parties will revoke their agreement to establish
a regular pension plan and, instead, agree to reinstate the
former profit-sharing retirement plan.
On March 30, 1982, auditors engaged by the Union re-
viewed Respondent's financial records. Respondent's
president testified without contradiction that, at the con-
clusion of that review, the Union's auditor told him that
Respondent's financial condition was so desperate that he
did not understand how Respondent could be still in
business. The UAW auditor then prepared a detailed
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
analysis of his examination and provided the Union's ne-
gotiating committee with a copy of that report. The par-
ties are in agreement that that report accurately reflects
Respondent's financial condition as of that time. A copy
of that report was received as an exhibit at the hearing
before me.
On March 8, the third negotiating session, Respondent
and the Union reviewed and discussed their respective
proposals and reached oral agreement as to certain minor
items, e.g., changing the wording of the contract provi-
sions governing washup times.
No progress was made at the March 11, 15, and 19
meetings. Respondent, on March 19, asked the Union to
list the items it wanted to have included in the pension
plan agreement. The Union provided Respondent with a
list of those "open items" at the next negotiating session,
March 23.2 Respondent then advised that it would
review those "open items." It also informed the Union
that it "could not deal with a fixed cost" and preferred
"a profit sharing plan." Respondent suggested it may
take the form of a trust, of an IRA or a union-adminis-
tered pension plan with Respondent's contributions being
fixed on a profit basis.
In the negotiations on March 24 and 25, some tentative
agreements were reached, e.g., Respondent withdrew its
proposal to reduce the mileage compensation from 20
cents to 15 cents and thus agreed with the Union's posi-
tion thereon.
The negotiating meetings on March 29 and 31 initially
had to do with the arranging for the Union to review
Respondent's financial records and arranging further dis-
cussions thereon. By then, the Union had obtained a
strike authorization from its membership and the strike
deadline was approaching. In the negotiations during the
first several days of April, some minor language changes
were agreed on. Respondent was insistent that wages be
frozen for 3 years, that fringe benefits be reduced, and
that the pension plan agreement be abandoned. Respond-
ent offered to turn over to the Union $40,000 it had ac-
crued on its books, the extent of its liability to date under
the original pension plan agreement. It coupled that offer
with a proposal that a trust fund for a profit-sharing ar-
rangement be set up with that contribution. The Union
rejected that proposal.
At the negotiating session on April 2, the Union's rep-
resentative asked Respondent whether, under its wage
freeze proposal, the employees would received the rate
of pay set forth in the then current contract or whether
they would receive the wage rate they were then being
paid, which included a COLA of 14 cents an hour. Re-
spondent replied that the employees would continue to
get that COLA amount. Respondent then proposed a
wage freeze for the first year of the renewal contract (as
noted above, its original proposal was for a three year
wage freeze), a 5-percent wage increase in the second
2 The General Counsel suggests that Respondent's request for a list of
"open items" was but a delaying tactic. It should be noted that Respond-
ent's newly hired vice president Afif was handling the negotiations and
that his request for such a list could enable him to expedite the pension
fund discussions. By that time, the individual who had handled the pen-
sion fund matter for Respondent, Bruce Meek, had resigned and was at
work in another State.
year provided the plant reached a productivity level of
35 pounds of production per employee per hour, and a 7-
percent increase in the third year provided that a 40-
pound per productivity level was reached. The Union
caucused at that point and then stated that it would take
the then existing contract as is with a wage freeze for 1
year. Respondent rejected that proposal.
In early April the negotiating subcommittee on job de-
scriptions, comprised of two members from Respondent
and two members from the Union, reached agreement on
revised job descriptions for most of the job classifications
in the plant. A substantial number of the jobs were re-
classified upwards. In effect, that revision would enable
the employees filling those jobs to receive a higher
hourly rate of pay even while the contract rates were
frozen. For example, the job of the Union's shop chair-
man, an extrusion operator, was reclassified to a pay
level which was $1.25 more than the wage rate he was
then receiving.
On April 4 the Union counterproposed a I-year exten-
sion of the contract, with a wage reopener at the expira-
tion of that year. Respondent rejected that counterpro-
posal.
On April 5, the parties resolved outstanding "language
issues," e.g., on the grievance-arbitration procedures and
on attendance policies. Respondent advised the Union
that it would be agreeable to a 2-year extension of the
contract, with a reopener on wages and fringes at the
end of those 2 years. It proposed further that the job
classifications agreed on by the subcommittee would go
into effect during the second year of that 2-year con-
tract. That would have resulted in a number of the unit
employees being upgraded and their receiving incre-
ments based on the fact that their jobs had been so re-
classified. Respondent further proposed that it would
drop its profit-sharing arrangement but would offer a
pension plan with specific amounts contributed to it and,
in addition, supplemental amounts based on profits made.
The Union's president vigorously rejected Respondent's
revised proposal.
A strike ensued as discussed below. The Union and
Respondent met several times since but have made no
progress, as further discussed below.
D. Alleged Unlawful Unilateral Changes; Alleged
Unlawful Efforts to Undermine the Union as
Bargaining Agent
The General Counsel contends that, in early 1982, Re-
spondent engaged in conduct away from the bargaining
table which was in violation of its obligation to bargain
collectively with the Union in that it was aimed at un-
dermining employee support for the Union. Respondent
maintains that all of the asserted unlawful acts were un-
dertaken to promote a harmonious relationship with the
Union and were done with the Union's approval, express
and implied.
The acts complained of by the General Counsel and
dealt with in this subsection took place shortly after Re-
spondent engaged its third business consultant in less
than a year to assist its president in operating its business.
That individual, Rafat Afif, was hired by Respondent on
154
TECTONIC INDUSTRIES
January 4, 1982, as vice president in charge of oper-
ations. He left Respondent's employ in September 1982.
The complaint in Case 39-CA-1179 alleges that Re-
spondent, through Afif, (a) unlawfully interrogated its
employees in late March and early April 1982; and (b) in
1982, began to give employees cakes on their birthdays,
to give prizes to employees with good attendance
records, and to offer them tuition refunds and better
plant uniforms. The General Counsel contends that, at
the same time it engaged in that conduct, Respondent
was telling the employees that it was the Union's fault
that working conditions were not better. The complaint
also alleges that Respondent unilaterally instituted the
tuition refund program, and unilaterally modified its
health insurance benefits and bypassed the Union in deal-
ing with employees respecting collective-bargaining mat-
ters.
The Union's shop chairman, Robert Silva, testified that
in early January 1982 he first met Afif and that, in a dis-
cussion then, Afif said that he wanted to upgrade four or
five job classifications and asked to meet with the
Union's president and its representative. Afif also told
Silva then that he wanted the Union to take credit for
the upgrading as that would be a feather in the Union's
cap. According to Silva, Afif also asked to have a meet-
ing with the union stewards and committeemen.
Afif's account of that discussion is somewhat more de-
tailed. He testified as follows. He met Silva on the work
floor shortly after Afif began his employ with Respond-
ent and Silva asked then to talk with him. They met in
one of the plant offices where Silva gave him a detailed
rundown of the problems the Union was having with
Respondent. Afif told Silva that he needed a couple of
days to find out more about those matters and asked him
to, in the meantime, set up a meeting with the Union's
committeemen.
A week later Afif met with Silva and with the Union's
shop stewards and committeemen. Afif testified as fol-
lows respecting that meeting. He began by telling them
that he had discussed with Silva the many areas of dis-
satisfaction Silva expressed to him. Afif related that he
told Silva and the others that it was obvious that Re-
spondent had problems as productivity and morale in the
plant were poor. He invited their comments. Afif testi-
fied that, in the ensuing discussion, complaints were
made that Respondent's absenteeism policy was too strict
and that grievances were unresolved for too long. Afif
responded to them by saying that the problem seemed to
go both ways. He noted specifically that Respondent had
agreed with the Union to provide uniforms to be worn
by the employees while at work and that, although those
uniforms were given them, only a limited number of em-
ployees were wearing them. Afif recalled that one of the
stewards responded that the employees did not get
enough uniforms and that the white shirts Respondent
provided got dirty too easily.
Shop Chairman Silva's account essentially parallels
that of Afif. Silva testified further that Silva offered to
take up the matter of the uniforms with the company
that supplied them to Respondent and that he told Afif
that it was the Union that had originally contacted the
uniform company, apparently back in 1979. Afif respond-
ed that he would take care of it.
Afif testified that in late January 1982 he told Silva
that he had arranged with the uniform supply company
to have one of its salesmen come down to the plant to
meet with the employees. Afif testified that he told Silva
that he would like Silva to be present with that salesman
when the employees looked over the display of uniforms
and Afif assured Silva that no one from management
would be present at that time. Silva did not refer to any
such conversation when he testified. I credit Afifs ac-
count as it is undisputed and as a notice was posted on
the employee bulletin on January 25, 1982, notifying
them that they could meet in small groups with a repre-
sentative of the uniform supply company informing them
that "Tectonic Management will not attend those meet-
ings so that open and frank discussions can take place."
Further, one of the General Counsel's witnesses testified
that, when he looked at the display of uniforms available,
Silva was present in the room with the salesman from
the uniform company.
Silva testified that, a few days after the employees ex-
amined the uniform display, Afif told him that employee
response was "quite good" and that he was going ahead
with the uniform program. Silva related that he then
voiced an objection. Silva stated that the uniforms had
not been supplied to the employees in accordance with
the terms of the contract then in force, that the employ-
ees had taken an economic loss, and that the Union
"would be looking for this ten month loss at negotia-
tions." Afif's account of that discussion is that he told
Silva that he advised the uniform supply company that
the Union was agreeable to the changes in the uniform
program and that a contract was being drawn up by the
uniform company. At that point, according to Afif, Silva
stated that Respondent owed the men $10,000 for past
uniforms not supplied and that that matter would be
brought up at the negotiating table. Afif testified that he
responded that he thought they had already negotiated
the new uniform contract and Silva repeated that that
matter would surely be brought up at the negotiating
table. Afif testified that he then advised Silva at that
point that "all bets are off."
Afif testified that on February 4, 1982, he and Plant
Manager Anderson met with the Union's president,
Philip Wheeler, with its business agent, Robert Madore,
and with its shop chairman, Robert Silva. Afif's account
thereon is as follows. At the beginning of the meeting,
Wheeler stated that he felt that it was wrong for Re-
spondent to have talked about the new uniform program
with the employees and in giving out birthday cakes and
tuition refunds. [Those matters are discussed below.] Afif
responded that he had in his past employment always
dealt with a union's chief steward on such matters and
that he had done so respecting the uniform program and
other matters with Silva. He asked Silva to confirm this
to Wheeler and Madore; Silva did so. The Union's busi-
ness representative, Madore, testified that, when the
Union brought up the uniform change matter at the Feb-
ruary 4 meeting, Afif never said that he had discussed
the uniform changes with Silva but simply turned and
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
looked at Silva when the subject was brought up. Nei-
ther Silva nor plant manager Anderson testified as to the
discussion of the uniform program at the February 4
meeting. I credit Afif's account.
Afif testified that he agreed to hold up on the new uni-
form program until the Union's president had talked the
matter out with Silva. According to Afif, he asked Silva
several days later if it would be all right to have a tailor
come in to measure the employees. Silva said it was all
right and, on that basis, a notice was sent to the employ-
ees. They were later measured for the uniforms. Silva
did not specifically controvert that testimony. He did
state that he had never at any time told Afif that he
could implement the uniform program change. I credit
Afif's account as it was consistent with his whole ap-
proach in dealing with the Union upon his assuming re-
sponsibility for managing Respondent's operations.
On February 25, 1982, Afif signed an agreement with
the Mechaics Uniform Supply Company. Under that
contract, the cost to Respondent was to be increased by
about $6 per week for each employee as a result of the
increase in the number of uniforms to be furnished them.
That new program was never put into effect as the testi-
mony of both Afif and Silva discloses. The contract Re-
spondent had signed with the uniform supply company
provided that it would be void "if the Union votes out
the uniform program."
The General Counsel further contends that Respond-
ent unilaterally granted benefits to employees in deroga-
tion of the Union's status as their representative by
having, in early 1982, instituted a practice of giving em-
ployees cakes on their birthdays, by granting prizes to
encourage better attendance at work, and by offering
them a tuition refund program to induce them to contin-
ue their education. Respondent asserts that those items
were fully discussed with the Union before they were
put into effect.
The General Counsel's first witness in this area,
Robert Madore, testified that the Union learned that the
Respondent had instituted these benefits when it received
a copy of a letter Respondent had sent to its employees
announcing those benefits. Madore testified further that,
at the negotiating session on April 4, 1982, the Union
protested to Respondent that those changes should not
have been put into effect without having first been dis-
cussed and approved by the Union at the bargaining
table.
The General Counsel's second witness respecting these
items, Clayton Barber, testified that Respondent gave
him a cake on his birthday in late March 1982 and that
this was done without any prior announcement. Barber
testified further that on March 4, 1982, he and other em-
ployees received a letter from Respondent's vice presi-
dent, Rafat Afif, which advised them that Respondent
would conduct a raffle for a 12-inch black and white tel-
evision set on April 6, 1982, and that the number of
raffle tickets to be given an employee would increase as
his attendance record approached 100 percent. Afif's
March 4 letter also notified them of a tuition refund pro-
gram Respondent was instituting to encourage its em-
ployees to become better trained. Afif's letter separately
noted that Respondent and the Union were in the course
of negotiating a renewal contract and it urged employees
to disregard any rumors that may be circulated. Afif
stated in that letter that Respondent and the Union had
agreed to keep their negotiations "confidential."
The General Counsel's third witness on these points
was the Union's shop chairman, Robert Silva. He testi-
fied that the first time he had had notice of Respondent's
tuition refund program or its offering a television set to
improve attendance occurred on March 4, 1982, when
Respondent's vice president Afif discussed with him that
morning the issuance of the March 4 letter, discussed
above. Silva testified that he told Afif then that the items
referred to in that letter were economic items that should
be discussed at the negotiating table and that the TV
raffle referred to a matter which was presently in the
grievance procedure. Silva testified also that he told Afif
that Respondent could not put the TV raffle plan into
effect and noted that the raffle was scheduled to take
place the day after the contract, then in effect, was
scheduled to expire. Silva testified that Afif told him that
Respondent intended to follow through on the TV raffle
plan. Respecting the initiation of the birthday cake pro-
gram, Silva testified that, about the end of January 1982,
Afif approached him on the work floor and told him
about "his new proposal to turn the company around by
offering cakes to the employees." Silva was one of the
employees who later received a birthday cake.
The General Counsel's next witness respecting these
alleged unilateral benefits was Robert Hyatt, one of the
unit employees now on strike. He testified that on his
birthday, February 9, 1982, Afif brought him a cake and
wished him a happy birthday. Another of the General
Counsel's witnesses, Ray Ziegler, testified that he re-
ceived a birthday cake from Respondent in early 1982.
Afif testified as follows respecting the birthday cake
program and the other matters involved in this subsec-
tion. In the meeting Afif had with Silva and the other
stewards shortly after he entered Respondent's employ,
he talked with Silva about the complaints registered with
him and said that something should be done about the
complaint from a union steward that Respondent had
failed to show any recognition of the contributions by
employees. Afif suggested that it would be a good idea
to "bring some fun in the place" and he told Silva that
he thought that Respondent ought to give out birthday
cakes. Afif testified that Silva responded that it was
about time that Respondent would recognize the em-
ployees. The only time the birthday cakes were men-
tioned during the ensuing contract negotiations took
place when the Union's bargaining representative Robert
Madore stated that the Respondent should scrap its
birthday cake program and give the employees turkeys
instead.
Respecting the tuition refund program, Afif testified
that he talked to Silva in January 1982 and told him that
four employees whose names he gave to Silva (those in-
dividuals were named in the complaint as unfair labor
practice strikers) had asked Afif about a tuition refund
program. Afif testified that Silva told him that that
matter had been discussed a long time ago but nothing
had ever been done about it. Afif quoted Silva as saying
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TECTONIC INDUSTRIES
that he thought it was a good idea and, on that basis,
Afif testified that he told Silva that Respondent would
do it. Afif testified that it was on this basis that he issued
the March 4, 1982 letter. Afif further testified that, on
February 4, the Union's president, Wheeler, asked him
about the tuition refund program and that Afif explained
it to him. Afif stated that at no time did the Union indi-
cate to Respondent that it did not want a tuition refund
to go into effect. Only two employees have filed applica-
tions to participate in the tuition refund program. Afif es-
timated that any benefits to be paid thereunder would
cost Respondent several hundred dollars at most.
In the General Counsel's rebuttal case, union repre-
sentative Robert Madore testified that he first learned
about Respondent's giving employees cakes after the
meeting the Union had with Respondent "when the sub-
ject of the uniform program came up" and that at no
time did he tell Afif to go ahead with a plan to give em-
ployees birthday cakes. Silva also denied that Afif told
him that any employees had approached Afif concerning
the tuition refund program. Silva testified too that he,
himself, never told Afif to go ahead and implement that
program. Further, Silva testified that there had never
been any talk prior to January 1982 with any of Re-
spondent's representatives concerning a tuition reim-
bursement program and that at the February 4, 1982
meeting neither the subject of birthday cakes nor the
subject of tuition refunds was discussed.
There is no material credibility issue to resolve. Afif
had made known his readiness to improve morale and
production and proposed the TV raffle, the tuition
refund program, and birthday cake arrangement in dis-
cussions with the Union's shop chairman. The Union
never told him not to implement those programs but in
April informed him in essence that he should have first
received the approval of the Union's president and its
business representative. In any event I credit Afif's ac-
count. Had the Union genuinely objected to Afif's pro-
posals respecting the giving of birthday cakes, the use of
a TV raffle to reward good attendance, or the offering
of tuition refunds, it would likely have objected in writ-
ing-in response to Afif's written notices thereon.
The General Counsel alleges, and Respondent denies,
that Respondent unlawfully interrogated its employees.
Clayton Barber testified for the General Counsel re-
specting that allegation as follows. On March 26, 1982,
Respondent's vice president Afif came to Barber's work
location and asked him if he had heard how negotiations
were progressing. Afif in substance asked why the
Union's representative Madore was doing all the talking
for the employees; Afif wanted to know why the em-
ployees on the Union's negotiating committee, Bob Silva
and Bill Sturtevant, were not talking. Afif brought up
the subject of insurance benefits and Respondent's pro-
posal during negotiations that the employees pay half the
cost of those benefits. Afif asked if the employees would
go along with paying both that cost and also with a
wage freeze. Barber responded that he would not go
along with those proposals. Afif then alluded to the fact
that the Union had examined Respondent's financial
records. Afif asked what Barber thought of that. Barber
responded that the poor economic condition of Respond-
ent came as a surprise to all the employees. Afif then
stated that the negotiations were not going anywhere,
that the Union was bullheaded, and that nobody wanted
to compromise.
Barber testified further as follows respecting a conver-
sation he allegedly had with Afif on March 30. Afif told
him then that time was running out and Afif wanted to
know what was wrong with the Union's negotiating
group as they did not want to meet on weekends. Afif
stated that if Barber stayed working (and did not go out
on strike) he would earn more than the $65 strike bene-
fit. Afif asked what Barber thought the employees were
going to do about a strike.
Barber further testified that he had the following con-
versation with Afif on May 5, 1982. Barber called to Afif
from the picket line and asked why Afif "didn't talk to
his buddy [Barber] any more." Barber then asked Afif
what had happened to the statement Afif once made to
him that, if the Union would keep working under the ex-
pired contract, Respondent would have no problem with
that. Afif responded by telling Barber to call him on the
telephone. Barber made the telephone call later that day
and, in that conversation, Afif told him that he did not
appreciate the violence that was going on. Afif in that
discussion stated that the upgrading of employee jobs
would have paid for half of the benefits lost, a matter
that the Union was complaining about. That was appar-
ently in reference to Respondent's proposal that the em-
ployees pay half of the premiums for medical coverage
and for other fringe benefits.
Respondent called Afif to testify respecting the forego-
ing testimony. Afif's testimony thereon is as follows.
Barber worked on the second shift with about seven
other employees. Afif talked with Barber on virtually
every workday about a variety of matters. Afif could not
remember any specific dates in which certain matters
were discussed in March 1982. He recalled that, on occa-
sions after he returned from negotiations, Barber had
asked him how things were going and that he responded,
"slow." He told Barber on one occasion that he was
tired because he himself was doing all the talking at the
negotiations and that the Union's representative Madore
must be tired too since he was doing the talking for the
Union. Afif observed that union committeemen Silva and
Sturtevant had been pretty quiet. In one of their discus-
sions in March, Barber said to Afif that the employees
could not afford to take the cuts being proposed by Re-
spondent and Afif replied that matter was being dis-
cussed in negotiations. Afif further recalled that, in a
conversation with Barber, Barber asked if the job up-
gradings were going to take effect and Afif replied he
could not talk about it as those matters were being dis-
cussed. Afif recalled that, on the day the Union audited
Respondent's books, Barber said to him as he walked
into the plant that Barber did not know that Respondent
was in such bad shape and that Afif replied that that
confirmed what he had been saying all along. Afif stated
that he probably did, in discussions he had with Barber,
refer to the Union as being bullheaded at times.
Afif testified that the only recollection he had of dis-
cussing weekend negotiations with Barber was his saying
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Barber that it was great that negotiations were sched-
uled for Sunday, April 4, and that, as a idle joke, Afif
said that he had been trying to get Sunday meetings
going earlier. Afif testied that he had no recollection of
having disussed strike benefits with Barber.
As to conversations with Barber while Barber was
picketing, Afifs testimony is as follows. Barber called
him one day in May 1982 while Afif was in the plant and
said that he wanted to have an off-the-record discussion
with Afif. Afif told Barber that he sounded a little bit
drunk and Barber insisted he was not. Afif told him that
he would call Barber the following day. He called
Barber at home the following day and said they dis-
cussed the difficulties of the strike, including some vio-
lence that had occurred. Afif did not have any reason to
discuss job descriptions with Barber and did not discuss
that subject. Afif did not recall ever telling Barber that
Respondent would accept a union proposal to keep in
force the existing contract.
I credit Afifs testimony that he and Barber had talked
every workday about a variety of matters, including
some related to the contract negotiations then going on.
Barber's own testimony is that he viewed Afif as a
"Buddy" and that indicates to me that Barber and Afif
often had casual discussions. I am not persuaded that
Barber's accounts of those conversations are more likely
true than is the testimony given by Afif. It is more prob-
able, in my view, that neither could relate with great
precision any particular discussion out of many related
or similar conversations. On that premise, I cannot credit
Barber's versions.
The General Counsel called Norman DiGiamberdine
as a witness in support of the contention that Respondent
bypassed the Union and engaged in direct negotiations
with unit employees. He testified that on March 4, 1982,
Afif asked him what he thought of the circular Afif sent
out that day to all unit employees. That circular an-
nounced the TV raffle drawing to promote better attend-
ance and also the tuition refund program, discussed earli-
er herein. DiGiamberdine testified further that on March
26, 1982, Afif told him while at work that DiGiamber-
dine could make $25,000 a year and that, when he retort-
ed that he had been working 20 hours' overtime each
week, Afif answered that that was better than Respond-
ent's bringing in more employees for that overtime work.
Afif did not controvert that testimony.
Robert Ziegler, a laboratory employee, testified for the
General Counsel that Afif on one occasion asked him if
he would like to work in the extrusion department. His
testimony also indicates that new laboratory equipment
had been brought in and this appeared to have some
impact on his job duties and on related grievances. In ad-
dition, the General Counsel's brief observes that Re-
spondent then was proposing during contract negotia-
tions that the Union agree to remove laboratory employ-
ees from the unit it represents. That proposal was later
dropped. Afif did not controvert Ziegler's testimony.
E. The Alleged Unlawful Refusal to Reinstate the
Striking Employees
The General Counsel contends that the employees rep-
resented by the Union have been engaged in an unfair
labor practice strike since April 5, 1982, and that Re-
spondent has unlawfully refused to honor their uncondi-
tional applications for reinstatement. Respondent main-
tains that the strike has been purely economic in nature
and that, when applications were made on behalf of the
striking employees to return to work, it offered the appli-
cants reinstatement to jobs not then filled by permanent
replacements.
The testimony is essentially uncontroverted that the
Union held a membership meeting on April 5, 1982, after
the negotiating session it had had that day with Respond-
ent. At that membership meeting, the Union's representa-
tives reviewed the negotiations with the unit employees
and told them that Respondent's final offer was "some-
thing less than what [Respondent] had originally of-
fered." The employees were told that the pension plan
which had been agreed to in the initial contract had
never been put into effect. They reviewed Respondent's
claims that it could not afford to give any benefits and
noted that at the same time Respondent was giving out
birthday cakes and tuition refunds and that it was in-
creasing the number of uniforms. In essence, they in-
formed the employees that Respondent was, in their
view, engaged in bad-faith bargaining and they asked for
a strike vote. The employees voted unanimously to go
on strike.
The pleadings establish that named unit employees
struck on April 5, 1982.
On August 27, 1982, the Union's president, Philip
Wheeler, delivered a letter to Respondent which stated
that the employees were unconditionally offering to
return to work under the existing terms and benefits on
August 30, 1982. Respondent sent a telegram to the
Union on that same date acknowledging that letter and
stating that it was reviewing its production schedule and
would respond to that offer. On August 31, it did so re-
spond. In that letter it stated that it would reinstate eligi-
ble striking employees for those positions currently
vacant or available for work beginning Wednesday, Sep-
tember 8, 1982, and that it would notify such employees
of the offers of reinstatement. It further advised the
Union that, as further positions became vacant or avail-
able, Respondent would offer reinstatement to eligible
employees.
It was stipulated that Respondent had hired permanent
replacements for a number of unit positions and that Re-
spondent offered to reinstate the strikers to the other unit
positions.
On September 9, 1982, the Union sent a telegram to
Respondent requesting Respondent to clarify Respond-
ent's offer. The Union asked Respondent if its offer to
those employees who received certified letters on Sep-
tember 1 applied only to them or to all employees on
strike.
On September 10, 1982, Respondent sent a telegram to
the Union's president. In essence Respondent stated
therein that it sent letters on September I to seven strik-
ers offering them reinstatement on September 8. Appar-
ently none reported for work then. On September 8, Re-
spondent wrote nine other strikers to offer them rein-
statement as of September 15. None of those nine strikers
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TECTONIC INDUSTRIES
reported. Respondent informed the Union that it would
continue to offer reinstatement to "eligible employees" as
positions became vacant.
Thereafter, offers of reinstatement were made at vari-
ous dates to the remainder of the striking employees.
F. Negotiations Since the Start of the Strike
Representatives of the Union and of Respondent met
six times after the strike began. These were mediation
sessions conducted by the Department of Labor of the
State of Connecticut. Neither side modified their respec-
tive demands. At the April 16, 1982 session, Respondent
informed the Union that it would put into effect its pro-
posal to cease paying all the medical insurance premiums
and to require that unit employees pay 50 percent of that
premium. That change has since then taken effect.
G. Analysis
1. In general
The General Counsel's brief stresses the background
collective bargaining since the signing of the initial con-
tract between Respondent and the Union. This approach
is used by the General Counsel to point up what he
views as the disparate way Respondent dealt with its em-
ployees in relation to its dealings with the Union's offi-
cials. In that regard, the record in this case indicates
that, since the signing of the April 4, 1979 contract, Re-
spondent was uncooperative with respect to the Union's
efforts to adjust numerous unresolved grievances; that
Respondent evidenced a similar lethargic response to-
wards the Union's urgent efforts to make progress on a
pension plan for the unit employees; and that Respondent
for almost 3 years failed to supply appropriate uniforms
to the unit employees. In that interval, it certainly did
not seem to someone not privy to Respondent's books
that Respondent was cutting cutting back on its corpo-
rate lifestyle. Thus, it moved to a brand new building in
1980; its officials were taking trips overseas on a much
more frequent basis than previously; and it turned over
to two former shareholders over S1 million of its assets.
When Respondent's president claimed in 1981 that Re-
spondent was in poor financial shape, he at the same time
refused the Union's request then that it be allowed to
look at Respondent's books to verify that claim. The
record in this case contains written appeals to the em-
ployees to cooperate with Respondent. They were told
more than once that the doors of Respondent's officials
were open to them, and that the "we versus they syn-
drome must be eliminated." In early 1982, its newly
hired vice president went out of his way to adjust the
employees' immediate problems then. Hovering about,
during many of the foregoing events, is the remark of
Respondent's president to officials of the Union that Re-
spondent would not have to worry about union griev-
ances or the like when the contract with the Union ran
out in April 1982.
In contrast to the small and friendly tokens given em-
ployees by Respondent in early 1982 in the form of
birthday cakes and otherwise is the forbidding presenta-
tion it made to the union officials at the second negotiat-
ing session and its related demand for substantial give-
backs.
Respondent's brief emphasizes that Respondent made
full disclosure of its financial condition, considered the
Union's proposals, offered counterproposals, made con-
cessions (e.g., in upgrading many of the unit jobs), and
met many times with the Union before and after the con-
tract expired towards resolving differences. The General
Counsel sought to neutralize those considerations by
urging that Respondent's offer on April 5, 1982, was sub-
stantially less than its April 2, 1982 proposal. I find no
merit in that contention as those two offers were pre-
mised on different bases. The April 2 offer was framed in
the context of employee productivity. The Union reject-
ed that approach and urged instead a i-year extension of
the then existing contract. The April 5 counterproposal
by Respondent was addressed to that contract-extension
proposal and had no relation to the productivity goals
towards which its prior proposal was aimed.
The argument made by the General Counsel appears
to be "bottomed primarily" on the view of collective
bargaining from the standpoint of the Union's officials.
The Board recently had occasion to reject that approach
in evaluating whether an employer had complied with its
duty to bargain in good faith.s The inquiry into good
faith "involves a finding or motive or state of mind
which can only be inferred from circumstantial evi-
dence."4 That determination is based on reasonable infer-
ences drawn from the totality of the parties' conduct at,
and away from, the bargaining table. s
2. The pension plan discussions
The first bad-faith violation encompassed by the com-
plaints in this case is alleged to have occurred on May 7,
1981, and pertains to negotiations on the subject of a
pension plan. At the meeting on that date, Respondent
proposed at the outset to reduce the pension plan survi-
vorship option from 60 percent to 50 percent. In two
previous drafts prepared by Respondent's pension plan
attorneys, they used the 60-perecent figure set out in the
original UAW outline, incorporated in the 1979 contract.
No explanation was offered as to why Respondent on
May 7, 1981, proposed a reduction in that option. The
credited evidence discloses that the Union rejected the
proposal on the ground that the 60-percent figure had al-
ready been agreed on and thus was nonnegotiable. The
Union then stated that it would file an unfair labor prac-
tice charge against Respondent and Respondent's repre-
sentative thereupon terminated the meeting. Seven
months later the Union broached the pension plan sub-
ject again with Respondent, that time with its legal coun-
sel, and thereafter the subject was handled as part of the
renewal contract negotiations. In overall context, I note
that, prior to the advent of the Union, Respondent had a
profit-sharing plan and that, in that 1982 negotiation, it
sought to revert to such an arrangement in place of a
s Chevron Chemical Co., 261 NLRB 44 (1982).
· NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 140 (Ist Cir. 1953).
' Smith's Complete Market, 237 NLRB 1424, 1438 (1978); Akron Novel-
ty Mfg. Co., 224 NLRB 998, 1001 (1976).
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pension plan along UAW lines which guarantees speci-
fied benefits.
The General Counsel is not urging, as to the pension
plan discussion, that Respondent was bound to the 60-
percent option figure by reason of the provisions in the
1979 contract. Rather, it appears to me that the General
Counsel's argument is that Respondent's mind was set
against any agreement other than a profit-sharing ar-
rangement and that Respondent engaged in unfair bar-
gaining to frustrate the Union's efforts to negotiate a
pension plan. The General Counsel may be asserting that
Respondent's survivorship proposal and the sudden clos-
ing of the May 7, 1981 meeting by Respondent's negotia-
tor then, its vice president Meek, constituted a violation
of Section 8(a(5). If so, I must reject that view as the
evidence is insufficient to establish that that conduct per
se is violative of the duty to bargain collectively.6 At
best, the actions of Meek then may suggest that Re-
spondent was looking for some basis to end the discus-
sion in a summary manner in furtherance perhaps of a
plan to frustrate negotiation towards a pension plan. A
violation cannot be premised on a speculation, especially
where as here the union representatives had made it
clear that in its view the plan or at least a significant
aspect of it was nonnegotiable. There are also the follow-
ing considerations to be taken into account in evaluating
whether or not Respondent engaged in bad-faith bargain-
ing as to the pension plan proposal.
I find at length that the evidence overall is insufficient
to support a finding that Respondent negotiated in bad
faith with the Union respecting its pension plan.
The language of that April 4, 1979 contract gave Re-
spondent "approximately" a year to present the Union
with a draft of a pension plan along UAW lines. Re-
spondent took 15 months. The Union, 3 months later,
suggested revisions. Further discussion resolved certain
of the Union's objections. When the parties met on May
7, 1981, to discuss the remainder, the Union stated that,
as to the first one, there would be no negotiations on it.
That effectively ended that meeting. Seven months later,
the Union brought up the matter anew with Respond-
ent's attorney. In the ensuing contract negotiations, Re-
spondent explained that it was in no financial position to
incur fixed pension contribution costs. It backed that up
by giving its books to the Union to audit. The audit con-
firmed that Respondent was in a precarious financial
condition. Respondent nonetheless offered the Union a
pension plan of its choice as long as contributions would
come out of profits.
3. Surface bargaining in the contract renewal
negotiations
The main assertion of the General Counsel is that the
1982 contract negotiations were but surface bargaining
on Respondent's part. In support of that assertion, the
General Counsel cites the alleged direct dealing with
unit employees and the further claim that Respondent's
last offer prior to the strike was significantly less in value
than its previous offer. I have already considered and re-
jected the claim that Respondent's April 5 proposal was
8 Cf. Parkview Nursing Center 1 Corp., 260 NLRB 243 fn. 3 (1982).
less than its April 2 offer. I turn now to the claim of al-
leged direct dealing and related matters.
When Respondent hired Rafat Afif in January 1982 as
vice president responsible for plant operations, there
were long simmering issues raised by the Union's repeat-
ed claims that Respondent was letting unresolved griev-
ances accumulate and that it was stalling in setting up
job classifications and in addressing itself to other mat-
ters of concern to the unit employees. The credited evi-
dence is that Afif met with the Union's shop chairman
and its grievance committeemen to explore with them
the depths of the problems and to cooperate with them
in solving them. The credited testimony discloses that
Afif consulted fully with the Union's shop chairman and
its other employee representatives respecting the matters
of plant uniforms, attendance incentives (the TV raffle),
birthday cakes, and tuition refunds. Respondent did not,
in negotiating with the Union's shop chairman and its
committeemen thereon, seek to undermine the Union but
in fact bargained collectively with it.7
The evidence bearing on the negotiations that took
place in 1982 between Respondent and the Union dis-
closes that Respondent met very frequently with the
Union, considered the proposals put forth by the Union,
submitted counterproposals, made more than a few con-
cessions, offered to document and did document its rea-
sons for seeking givebacks, and revised its proposals to
reflect the Union's expressed concerns in attempts to
obtain the Union's consent as to the revisions, and that
Respondent at no time took an intransigent position on
any specific item but rather kept a flexible approach to
explore areas of potential agreement. In these circum-
stances, the evidence does not permit an inference that
Respondent engaged in surface bargaining in order to
avoid agreement on the terms of a renewal contract with
the Union.
4. Conduct away from the bargaining table
Other asserted unlawful conduct which occurred away
from the bargaining table and which purportedly has a
bearing on Respondent's good faith in the negotiations
consists of Afif's discussions with employees Clayton
Barber, Robert Ziegler, and Norman DiGiamberdine.
Based on the discussions earlier in this decision, it is
clear that Afif's conversations with Barber were routine
in nature and it appears that they were initiated as much
by Barber, a union steward and committeemen, as by
Afif. I find nothing coercive in Afif's asking DiGiamber-
dine about the notice Afif issued on March 4 concerning
the TV raffle and the tutition refund program. Lastly,
Afif's asking Ziegler if he liked to switch from laborato-
ry work to production work may have been intended to
lay the groundwork for Respondent's later proposal
during negotiations to remove laboratory and sample em-
ployees from the bargaining unit. In and by itself howev-
er, the questioning cannot be deemed coercive. Further,
I note that Respondent dropped its proposal to restruc-
ture the scope of the bargaining unit.
I Triplex Oil Refining Division, 194 NLRB 500 (1971).
160
TECTONIC INDUSTRIES
I find that Afif's discussions with Barber, DiGiamber-
dine, and Ziegler were noncoercive.'
5. Conclusions
The actual conduct of the negotiations in 1982, includ-
ing Afif's dealings with the Union's shop chairman and
its committeemen regarding uniforms and the other mat-
ters they discussed, and including the conduct away
from the bargaining table and the absence of any inde-
pendent evidence of union animus, demonstrates that Re-
spondent pursued a hard bargaining course dictated by
its difficult economic position and reveals insufficient
evidence to support a finding of bad-faith bargaining.'
In making the foregoing determination, I have taken
into account the background evidence and other matters
relied on by the General Counsel which was highlighted
at the outset of this section of my decision. Those con-
siderations could readily permit a finding that Respond-
ent's acts from mid-1979, and up to the second negotiat-
ing session in 1982, were in good part responsible for a
lack of faith by the unit employees and the union repre-
sentatives in Respondent's dealings with them and for
their views that Respondent had long since embarked on
a campaign to rid itself of the Union and that it sought
substantial givebacks in furtherance of such a goal.
Those considerations do not outweigh the totality of the
evidence on which I have also found that Respondent
bargained in good faith for a renewal contract. Although
not expressly articulated but nonetheless alluded to in
different ways, I have taken into account the possibility
that Respondent may be held chargeable with having
pursued a course of conduct for so long as to have in es-
sence misled the Union to the point where it may have
been compelled to strike. That concept is not envisioned
by the Act. Rather, and as noted above, the controlling
element is the matter of Respondent's good faith and not
the Union's perception thereof.
The General Counsel separately contends that Re-
spondent unilaterally changed the medical and surgical
* Television Wicotin. Inc., 224 NLRB 722, 765 (1976).
* Chewon Chemical Co., 261 NLRB 44 at fn 3.
plan governing unit employees by its having put into
effect after the strike started its proposal thereon as made
to the Union just before the strike began. As an impasse
existed and as there is no evidence that the impasse was
brought about by any bad-faith bargaining by Respond-
ent, it was free to put that change into effect, as it did. '
The allegation that Respondent unlawfully failed and
refused to reinstate the striking employees on their un-
conditional application therefor is grounded in the Gen-
eral Counsel's claim that they were, since April 5, 1982,
engaged in an unfair labor practice strike. As I have
found no unfair labor practices on Respondent's part, I
conclude that the strike had been economic since its in-
ception and that there is no evidence, or contention, that
Respondent treated economic strikers discriminatorily.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization as defined in the
Act.
3. Respondent did not fail or refuse to bargain collec-
tively with the Union in violation of Section 8(aXl) and
(5) of the Act, did not refuse to reinstate striking em-
ployees in violation of Section 8(aXl) and (3) of the Act,
and did not in any other way engage in conduct pro-
scribed by Section 8(aXl) of the Act.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended
ORDER
The complaints are dismissed.
10 Taylor-Wlfleld Corp., 225 NLRB 457, 463 (1976).
1 If no exceptions are filed m provided by Sec. 102.46 of the Board's
Rules and Regulations, the finding conclusions, and recommended
Order shall, u provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shl be deemed waived for all pur-
poer
161