Tubari, Ltd., Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1990

299 N.L.R.B. 1223 (N.L.R.B. 1990)

TUBARI, LTD. 1223
Tubari, Ltd., Inc. and Fur Dressers, Local 1-3,
FLM, FJC, United Food and Commercial
Workers, AFL-CIO. Case 22-CA-15220
September 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 21, 1989, Administrative Law
Judge Steven B. Fish 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 exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Tubari,
Ltd., Inc., Saddle Brook, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
'No exceptions were filed to the judge's finding that the Respondent
did not, as alleged, violate Sec. 8(aX5) and (1) of the Act by engaging in
surface bargaining.
Marguerite R. Greenfield, Esq., for the General Counsel.
James M. Burns, Esq. (Genova, Burns & Schott), of Liv-
ingston, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant
to charges filed by Fur Dressers, Local 1-3, FLM, FJC,
United Food and Commercial Workers, AFL-CIO (the
Union or Local 3), the Acting Regional Director for
Region 22 issued a complaint and notice of hearing on
July 29, 1988. The complaint alleges in substance that
Tubari, Ltd. Inc. (Respondent) has violated Section
8(a)(1) and (5) of the Act by refusing to supply and or
delaying in supplying necessary and relevant information
to the Union, and by failing to bargain in good faith with
the Union during the course of negotiations that oc-
curred in 1987.1
The hearing with respect to the allegations raised in
the above complaint was heard before me on January 18,
1989, in Newark, New Jersey. Briefs have been received
1 All dates are in 1987, unless otherwise Indicated.
from Respondent and General Counsel, and have been
carefully considered. Based on my consideration of the
entire record, the briefs, and my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent has been engaged in the business of dress-
ing fine furs at its facility in Saddle Brook, New Jersey.
During the past year, it has performed services valued in
excess of $50,000 for customers located in States other
than the State of New Jersey. It is admitted, and I find,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
It is also admitted, and I so find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. PRIOR RELATED CASES
A. Cases 22-CA-13581, 22-CA-13615, and 22-CB-
5241
Pursuant to charges filed in the above-entitled cases by
Local 3, the Acting Regional Director for Region 22
issued complaints against Respondent, as well as Local
1518, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Local
1518 or the Teamsters) alleging violations of Section
8(a)(1), (2), and (3) of the Act on the part of Respondent,
and Section 8(b)(1)(A) of the Act by Local 1518. Hear-
ings were held by Administrative Law Judge Howard
Edelman on various dates in April and May 1985 with
respect to the above allegations. His decision issued on
December 19, 1985, finding that Respondent violated
Section 8(a)(1) and (3) of the Act, which decision was
affirmed by the Board in these respects on February 29,
1988 (287 NLRB 1273). The Board decision found that
Respondent had committed numerous violations of Sec-
tion 8(a)(1) of the Act during the period between June
through December 1984, consisting of unlawful interro-
gations, threats of discharge and plant closure, creating
the impression of surveillance, and promises of benefits.
Additionally it was found that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discharging some 16 or
17 floorworkers because of their activities on behalf of
Local 3. It was also concluded that these employees
became unfair labor practice strikers and that Respond-
ent further violated the Act by refusing to reinstate them
upon application.
Additionally the Board concluded that Respondent
became aware that one of the reasons that employees
were interested in replacing Local 1518 with Local 3,
was Local 3's allegedly superior medical coverage. In
that connection various supervisors of Respondent un-
lawfully promised employees medical coverage over that
in that Local 1518 plan, in violation of Section 8(a)(1) of
the Act.
299 NLRB No. 166
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Case 22-RC-9339
Pursuant to a petition filed by Local 3, a representa-
tion hearing was held in the above case, on December
13, 1984. The case was initially blocked, due to penden-
cy of the above-described unfair labor practice charges.
Apparently at some point, undisclosed by this record,
Local 3 filed a request to proceed, thereby permitting
the further processing of the petition. On October 24,
1985, Respondent filed a motion with the Acting Region-
al Director to reopen the record in the representation
case, to present additional evidence, which had been de-
veloped during the course of the unfair labor practice
trial, with respect to the appropriateness of the unit. Re-
spondent contended in its motion, that such evidence
would establish that the fleshers employed by Respond-
ent have an insufficient community of interest with the
floorworkers, and that the fleshers are entitled to a craft
severance election. In the motion Respondent relied on,
among other circumstances, facts developed at the C
case trial, that a strike conducted and supported by
Local 3 from December 3, 1984, to August 1, 1985, was
engaged in only by floorworkers, and that the fleshers
crossed the picket line and continued to work. More-
over, Respondent argued, Local 3 made little effort to
organize the fleshers, which further demonstrated the
lack of community of interest between the two groups.
On November 15, 1985, the Region issued a Decision
and Direction of Election, wherein it denied Respond-
ent's motion to reopen the record, on the grounds that
none of its proffered evidence was either unavailable or
newly discovered.
The decision did not consider the argument raised by
Respondent in the initial hearing that Local 3 should be
disqualified from representing th fleshers. In that regard
the decision recognized that the fleshers were considered
skilled employees, 2 while the floorworkers are generally
unskilled utility workers. Historically Local 3 had only
represented floorworkers, while its sister local, Local 2
of the Fur Dressers Union, had represented only fleshers.
While the Region recognized that the instant petition
was the first time that Local 3 sought to represent flesh-
ers, it did not view this as sufficient to disqualify it from
consideration by these employees as their collective-bar-
gaining representative.2
Thus an election was directed in a unit of all regular
full-time and part-time employees, including floor-
workers, fleshers, chauffeurs, and helpers, but excluding
executives, clerical employees, guards, and supervisors as
defined in the Act. Thereafter, Respondent filed a re-
quest for review of the Acting Regional Director's deci-
sion.
On December 18, 1985, the Board denied Respond-
ent's request for review. On December 19, 1985, an elec-
tion was conducted. The tally showed 34 votes cast for
Local 3, 15 for Local 1518, and 27 challenges, which
were sufficient in number to affect the results of the elec-
tion. On February 12, 1987, the parties executed a stipu-
lation, agreeing to open and count 19 of these challenged
ballots. On that same day, a revised tally of ballots re-
suited in 38 votes cast for Local 3, which was sufficient
to establish that a majority of the valid votes cast were
cast for Local 3. On February 12, 1987, Local 3 was cer-
tified as the collective-bargaining representative of Re-
spondent's employees in the unit set forth in the Decision
and Direction of Election.
C. Cases 22-CA-13990, 22-CA-14081, 22-CA-
14252 and 22-CA-14034
Pursuant to charges and amended charges filed by
Local 3 and by employee Enrique Moreira, the Region
issued an order consolidating cases, first amended com-
plaint and notice of hearing on June 3, 1986, alleging
that Respondent engaged in unfair labor practices in vio-
lation of Section 8(a)(1) and (3). Thereafter, Respondent
and Local 3 executed a formal settlement disposing of
the issues raised by the above complaint. Respondent
agreed to cease and desist from refusing to reinstate em-
ployees, issuing warning letters, or suspending or dis-
charging employees, because of their sympathies and ac-
tivities on behalf of Local 3. It also agreed to offer cer-
tain employees reinstatement, and pay backpay to others
in varying amounts. The stipulation was subsequently ap-
proved by the Board in a Decision and Order on De-
cember 29, 1986, which was eventually enforced by the
Third Circuit Court of Appeals.
IV. FACTS
On February 23, 1987, Richard Greenspan, attorney
for Local 3, sent a letter to Respondent's attorney
Melvin Gelade. The letter referred to Local 3's certifica-
tion, requested that negotiations commence, and asked to
be supplied with a copy of Respondent's contract with
Local 1518, plus an up-to-date list of names and address-
es of all unit employees, including job title, date of hire,
wage rate, and number of hours worked. By letter dated
March 3, Gelade informed Greenspan that Steven Edel-
stein from a different law firm would be handling negoti-
ations for Respondent, and indicated that Greenspan
should contact Edelstein directly.
By letter to Edelstein dated March 18, 1987, Green-
span referred to a telephone conversation between the
two of them, during which Edelstein promised to get
back to Greenspan to arrange a negotiation date. Green-
span also in the letter reiterated his request for the infor-
mation sought in his February 23 letter.
On March 23, Edelstein sent a copy of Respondent's
contract with Local 1518, along with a covering letter
promising to forward the employee roster under separate
cover. Respondent's collective-bargaining agreement
with Local 1518 included a recognition clause covering
all employees, 4 a union-security clause, a 90-day proba-
tionary period, 11 paid holidays, a seniority clause, and 6
days of sick leave. The contract, which ran from January
29, 1985, to January 31, 1988, also provided for wage in-
creases for floorworkers of 45 cents per hour on Febru-
ary 1, 1987. It also provides for starting salaries for floor-
workers of $4.25 per hour with a raise to $4.50 per hour
2 Their primary function is to shave the skins. 4 It is undisputed that the contract covered the fleshers employed by
3 The Local 1518 contract had covered both fleshers and floorworkers. Respondent, as well as the floorworkers.
TUBARI, LTD. 1225
after 30 days. For fleshers their salaries are specified in
terms of 55 or 65 cents per skin, depending on the type
of skin involved.
Edelstein sent a list of the names and addresses of all
bargaining unit employees to Greenspan on March 30.
The list did not include the employees dates of hire,
wage rates, or classifications that the Union had request-
ed.
The first negotiating session was held on April 1. The
chief spokesman for the Union at that meeting was
Curtis Mason, the Union's International representative.
Also present for the Union was Martin O'Brien, at that
time president of Local 3, Henry Foner, president of
Local 1, various other union officials, plus a committee
of employees. Edelstein was the chief negotiator for Re-
spondent and was accompanied by Esther Glass, Re-
spondent's vice president. Mason on behalf of the Union
presented its proposal, which included a one-page intro-
ductory memorandum plus a proposed collective-bar-
gaining agreement. The introduction explained that the
Union was seeking compensation for floorworkers based
on a "cooperative piece work system" which is in effect
in other plants under contract with the Union. The
system provides for a piecework rate based on the type
of skin which is divided among all floorworkers. As for
the fleshers, the Union's proposal listed the piecework
rates for fleshers in contracts covered by Local 2, a sister
local to Local 3.5
The Union's proposed contract called for a number of
improvements from the old Local 1518 agreement in var-
ious areas such as pension, vacation, night-shift differen-
tial, workweek, and the elimination of a probationary
period. Although not specifically mentioned in the
Union's written proposals, Mason demanded that the Re-
spondent grant the 45-cent-per-hour increase called for in
the Local 1518 contract, which was due on February 1,
1987.
Mason asked Edelstein if Respondent was providing
health benefits to the employees. Edelstein replied that
Respondent had implemented a health plan for the unit
employees. Mason responded that the Union viewed the
continuation of health benefits as an act of good faith on
the part of Respondent. At the conclusion of the meeting
Edelstein informed the Union that he would present Re-
spondent's contract by the next meeting.
The next meeting was held on April 16. Edelstein
began by apologizing for not having his counterproposals
ready. He then voiced Respondent's objections to the
Union's piecework proposals, since in Respondent's view
such a system would limit its authority over the employ-
ees. O'Brien responded on behalf of the Union, explain-
ing the Union's "Community piece work system," and
arguing that it does not take any authority away from
Respondent. There was additional discussion, but no res-
olution of this issue.
Edelstein also addressed himself to the Union's
demand for a union-security clause. He pointed out that
there was a division in the shop between the fleshers and
the floorworkers, and that in his view fleshers did not
5 It does not appear that the Union's proposal for a "cooperative piece
work system," was applicable to the fleshers.
want to join the Union. He also added that the fleshers
constitute a separate operation in the Company, and they
(fleshers) do not want to be compelled to become union
members. In this connection the record reveals that
fleshers make between $80,000—$130,000 per year at Re-
spondent, while floorworkers average $12,000. Addition-
ally, historically fleshers are generally represented by
Local 2 of the Fur Dressers Union, and Local 3 had no
fleshers as members at the time. Mason responded that
the Union represented the entire shop, and as far as the
Union was concerned, the question (i.e., union security)
was not open for discussion.
Mason again requested that the floorworkers receive
the 45-cent-per-hour increase called for in the Teamsters
contract. Edelstein responded that Respondent would do
what the law requires, that he didn't believe the law re-
quires such a raise be given, and that the Union must
convince him otherwise.
The Union at this meeting raised the issue of Respond-
ent's failure to reinstate employee Gladys Mujica. The
matter was discussed and Edelstein explained that the
papers that she had submitted to Respondent contained a
deportation order from Immigration. It was also ex-
plained that Respondent had pursuant to the Union's re-
quest, given Mujica additional time to present her docu-
ments. The Union agreed that Respondent had not acted
improperly in denying her reinstatement.
By letter dated April 20, Greenspan requested the
dates of hire, wage rates, and classifications of the bar-
gaining unit employees, about which Respondent had
previously furnished only the names and addresses. The
letter also asked for information on the number and type
of skins worked on in a given week. Edelstein did not
reply to Greenspan's letter.
The next meeting was held on April 30. Edelstein
began by stating that he did not have a counterproposal
ready, but he would present one at the next meeting.
The Union announced that Foner would be its chief
spokesman, in view of an intervening merger between
Local 3 and Local 1, and Foner's selection as president
of the merged union. Foner indicated that the Union re-
alized that Respondent was used to a timework system,
and that it would be a significant change to go to a
piecework system. Therefore, the Union withdrew its
proposal for a "community piecework" system for the
floorworkers.
Foner also requested that Respondent supply the infor-
mation that the Union had previously requested with re-
spect to the fleshers. Edelstein replied that he felt that
the fleshers did not wish to be part of the bargaining
unit. Foner at that point indicated to Edelstein that "if
that is going to be a big problem, that we would not
contest the fleshers not being in the bargaining unit."
O'Brien then asked for a caucus. At the caucus of the
union representatives, O'Brien informed Foner that he
had no right to commit himself to let the fleshers go,
since the Union's certification covered all employees.
Foner agreed with O'Brien, and after the caucus ended,
apologized to Edelstein, and withdrew the Union's assent
to allow removal of the fleshers from the unit.
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Foner raised the issue of the discharge of employee
Amulfo Hernandez. Most of the meeting of April 30 was
taken up by a discussion of his status. Foner stated that
the Union did not want to negotiate with Respondent
under the cloud of the Hernandez discharge, and de-
manded that Respondent reinstate him. Edelstein refused,
and Foner requested that Respondent agree to arbitrate
the matter. Initially this request was refused as well.
However after substantial discussion, Edelstein agreed
that Respondent would consider arbitrating the dis-
charge, and utilizing the expedited arbitration procedure
of the state board of mediation to get a quick result. He
promised to contact the Union's attorney in the next
couple of days.6
The subject of health coverage was also discussed.
Foner indicated that the Union had a better health plan
than Respondent was currently furnishing. Edelstein re-
plied that Respondent had one that is good enough, and
was not about to change it.
Foner also brought up the subject of overtime, re-
questing that overtime be shared equally among employ-
ees. Edelstein replied that Respondent wished to give
overtime to whom they felt were the most qualified and
most productive workers.
The fourth bargaining session was held on June 15.
Respondent on the same afternoon presented a written
proposal for a new contract, with a covering letter from
Edelstein to Richard Greenspan, the Union's attorney.
The proposed contract, closely tracked the preexisting
Local 1518 contract, and is identical to that contract in
most respects, with certain exceptions. The most promi-
nent difference was with respect to wages, which was
contained in Edelstein's covering letter. A proposal was
made only for floorworkers, with Edelstein stating in the
letter that a wage package for fleshers can be discussed
at the table. A starting salary of $4.25 per hour was pro-
posed, which was identical to the Local 1518 contract.
However for current employees, Respondent proposed
a top rate of $6.25 per hour, and that any employee
whose salary exceeded $6.25 would be reduced to that
amount. The record reveals that 13 unit employees out
of a list of some 45 floorworkers employed by Respond-
ent would be subject to a wage reduction as a result of
this proposal. Of this group 11 of the employees were
paid $7.20 per hour, one $6.75 and one $6.55. All of
these 13 employees had been cardsigners, 9 of them were
on the negotiating committee, and 7 had been discrimina-
tees in the earlier case.
Respondent proposed raises for those remaining em-
ployees whose salaries were less than $6.25 per hour of 4
percent on the date of execution of the agreement, 2.5
percent at the first anniversary, and 2.5 percent on the
second anniversary. At no time however, would any
salary exceed $6.25 per hour.?
Edelstein did notify Greenspan shortly thereafter of Respondent's
agreement to arbitrate the discharge of Hernandez on an expedited basis,
which hearing was subsequently held.
7 The remaining employees were paid from $4.25 to $6 per hour with
19 such employees making $4.50 or less, and 9 more at either $5 or $4.25
per hour.
Foner began the meeting by stating that he had read
Respondent's proposals, and believed that Respondent
was not bargaining in good faith. Foner pointed out that
the highest paid workers, who were union supporters
would be the main victims of a wage cut and were being
asked to accept a 95-cent-an-hour reduction. Foner also
asserted that there had been no wage cap in the Team-
sters contract, and again demanded that Respondent give
the 45-cent-per-hour raise due under that contract.
Edelstein replied that Respondent had no intent to pin-
point or target union supporters, but that its employees
current wages are "way out of line." Foner questioned
how the wages could be "way out of line," since some of
his union shops provide for wages of $10 an hour, more
than Respondent was paying. Edelstein answered he
knew that there are shops that do not pay as much as
Respondent. Foner asked Edelstein to show him who
these shops were, because he didn't know of any. Edel-
stein responded that he would supply this information to
Foner.8
Edelstein also asserted as a reason for its proposals,
that its costs had gone up. As to the Union's request that
Respondent implement the 45-cent raise in the Teamsters
contract, Edelstein replied that this was out of line also,
and that had he been negotiating at the time, the 45-cent-
per-hour raise would not have been agreed to.
Foner next objected to Respondent's proposal to
reduce the amount of sick days by one, and eliminate
one paid holiday the first year, and another the second,
asserting that these had been benefits under the Team-
sters contract. Edelstein responded that these benefits
were also out of line, and that if he had negotiated that
contract, he would not have recommended these
amounts of holidays and sick days.
Foner then turned to the issue of a seniority clause.
The Union's initial proposal did not contain a seniority
clause, since it was not in the Union's judgment neces-
sary to the "community piece work system" that it had
proposed. Since it had now withdrawn its demand for a
piecework system, Foner objected to the absence of a se-
niority clause in Respondent's proposal. Foner noted that
the Teamsters contract had provided for seniority and
there had been no problem. Edelstein responded that Re-
spondent feels the most productive workers should be al-
lowed to work in the event of a layoff. Foner answered
that Respondent never had a layoff before, and ques-
tioned how Respondent could establish who were good
workers.
Foner also raised the issue of the absence of a union-
security clause, and asserted that Respondent had includ-
ed such a clause in the prior contract.
Additionally, Foner mentioned that the Union may
have a better health and welfare plan than Respondent
and at a lesser cost. Edelstein answered that he would
look into it.
8 Edelstein never provided this information to the Union. However the
issue of Respondent's current wages being "out of line," was never raised
in any subsequent negotiation, nor was the subject of wages paid by
other shops. The Union never made a further request for the names of
the shops that Edelstein had claimed were paying less to its employees
than Respondent.
TUBARI, LTD. 1227
Foner then raised the issue of Respondent's proposal
that the Union be responsible for damage to skins in the
event of a strike. Foner gave his reasons why he didn't
believe the Union could obligate itself to be responsible
for such damages.
At the conclusion of this session, Edelstein asked for
an "off the record" discussion with the union representa-
tives and committee, outside the presence of any officials
of Respondent. Edelstein advised them that the owners
of Respondent did not believe that the Union was serious
about negotiating a contract, and that they felt there was
too much division in the shop between new workers and
union supporters. Additionally Edelstein asserted that the
old employees were harassing the new employees by
talking about a strike. Finally he stated that Respondent
was concerned about the disappearance of some skins
and a slowdown in production. Edelstein informed the
Union that he knew that a 95-cent-an-hour cut would not
be acceptable to the Union, but he believed that "some-
thing could be worked out," particularly if the employ-
ees cease harassing other employees and slowing down.
Foner asked Edelstein for a list of the employees who
Respondent believes were slowing down and harassing
other employees. Edelstein furnished a list of 11 names,
and the parties agreed to a "clear the air" meeting,
during which these 11 employees would be present.
The "clear the air" meeting was held on July 14, at
the Marriott hotel near the plant. The 11 employees
whom the Respondent had accused of harassing conduct
were there, along with the committee, union officials,
and Esther Glass. The union members present denied
that they had committed any acts of harassment, but nev-
ertheless pledged that no such acts would occur in the
future, and that they would "try extra hard." The em-
ployees complained that they were being harassed by
management as well. Respondent's officials while not ad-
mitting that they committed any act of harassment
against employees, also pledged not to engage in such
actions. The meeting ended in an atmosphere that
O'Brien viewed as encouraging that progress could be
made in reaching an agreement.
The sixth and last negotiation session was held on July
27. At this session Edelstein provided the Union with a
list of names and addresses of floorworkers, dated May
31, with their classifications and wage rates. Foner com-
plained about the fact that there had been new hires
since May 31, and the Union wanted an up-to-date list of
employees, which included these new workers. Foner
also noted that this list did not include any information
about the fleshers, and that the Union didn't even know
whether the fleshers had received a wage increase that
had been due to them.
The record does not reveal what response Edelstein
made, if any, to Foner's remarks. In any event, it is un-
disputed that Respondent never provided any additional
information to the Union since July 27.
Edelstein offered at this meeting to raise its wage cap
from $6.25 to $6.50, thereby reducing the proposed wage
cut by 25 cents per hour, and withdrew its proposal for
the elimination of two holidays. Respondent still adhered
to its demand that sick days be reduced from 6 days to 5.
Edelstein also stated that if as Foner had previously con-
tended the Union's health and welfare program was less
costly to Respondent, something could be worked out on
that issue.
Foner responded by asserting that there was no way
that the Union would accept a wage cut, and that since
Respondent had included seniority and union-security
clauses in the Teamsters contract, Respondent was not
bargaining in good faith by proposing their elimination.
Edelstein responded as to seniority, as he had in prior
meetings. Respondent felt that when it came to layoffs, it
had a right to determine who were the most productive
and best workers. As to union security, Edelstein repeat-
ed his earlier comments that the fleshers did not wish to
become union members, and proposed a maintenance-of-
membership clause to solve this problem.9
Foner was not impressed with this modification of Re-
spondent's position, and continued to insist that since Re-
spondent had agreed to a union-security clause in the
Teamsters contract, its failure to agree to it now, con-
vinced Foner that Respondent was not bargaining in
good faith.
Foner concluded the meeting by reiterating to Edel-
stein that there is no way that the Union can go back to
its people and recommend a contract accepting wage
cuts, loss of a sick day, and no union-security clause,
which he again emphasized had been included in the
Teamsters contract. Therefore Foner stated that the
Union believed that Respondent was not bargaining in
good faith and as not serious about signing a contract.
The meeting concluded, and no further negotiation ses-
sions were scheduled or held.
A few days after this session, O'Brien and Foner met
with Union's counsel Cammer to discuss strategy. Foner
reported to Cammer on Respondent's proposals, and
Foner's view that Respondent was bargaining in bad
faith. Foner emphasized that in his opinion Respondent
knew that the Union could not recommend a proposal
that could cut wages of the strongest union supporters,
eliminate one sick day and without a union-security
clause." Foner proposed that the Union break off nego-
tiations, go to the newspapers, and distribute pamphlets
publicizing Respondent's conduct. He also recommended
filing unfair labor charges with the Board. Foner felt
that these actions would bring Respondent back to the
table to bargain fairly with the Union. O'Brien expressed
his opinion that the Union should continue negotiations,
asserting that the Union had nothing to lose by setting
up dates and continuing negotiating. Foner however,
with Cammer's concurrence overruled O'Brien, and de-
cided not to continue negotiations.
9 On this issue, I do not credit O'Brien's confused testimony that Re-
spondent proposed at this meeting to exclude fleshers from the bargaining
unit entirely Obviously O'Brien was uncertain as to the difference be-
tween a member of the Union and member of the unit, and was not famil-
iar with nor did he understand the meaning of a maintenance-of-member-
ship clause. Since there were no flashers who were members of the
Union, this clause would result in not compelling any fleshers to become
members of the Union.
10 Foner did not mention Respondent's failure to supply any Informa-
tion to the Union as a reason for his belief that Respondent was not bar-
gaining in good faith.
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V. ANALYSIS
A. The Alleged Refusal to Supply Information
It is well established that an employer has a statutory
duty to provide a union, on request with relevant infor-
mation the union needs for the proper performance of its
obligations as a collective-bargaining representative.
NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436
(1967). The test for determining a union's need for such
information is a showing of "probability that the desired
information was relevant, and that it would be of use to
the Union in carrying out its statutory duties and respon-
sibilities." Acme, supra at 437; American Commercial
Lines, 291 NLRB 1066 (1988). Moreover, an unreason-
able delay in furnishing such information can be as much
of a violation of the Act as a refusal to furnish the infor-
mation at all. Valley Inventory Service, 295 NLRB 1163
(1989); Bundy Corp., 292 NLRB 671 (1989).
Here the Union by letter dated February 23, requested
that Respondent supply a copy of its previous contract
with Local 1518, plus an up-to-date list of all unit em-
ployees including job title, date of hire, wage rates, and
number of hours worked. There is no question, and
indeed Respondent does not dispute the fact that this in-
formation is relevant to the Union's functions, and must
be produced. Respondent argues however that it pro-
duced all information to which the Union is entitled in a
timely fashion. I do not agree.
In fact Respondent did not produce the Local 1518
contract until March 23, over a month later. While this
delay can arguably be explained by Respondent's deci-
sion to change law firms as its negotiator, there is not
even an arguable excuse for its subsequent conduct. It
did not produce the list of employees and addresses until
March 30, the day before the first negotiation session,
and that list was inadequate, since it did not contain the
employees job classifications, wage rates, or hours
worked, as had been requested. Nor did Respondent fur-
nish any explanation for its failure to produce all the in-
formation requested. Even after another request made by
the Union on April 20, Respondent failed to produce the
requested information until July 27, 5 months after the
initial request was made. I note that not only did Re-
spondent fail to give the Union any explanation for its
delay, see Valley Inventory, supra, but the nature of the
requested information (job classifications and wage
rates), is conducive to a relatively quick response, Shan-
gri-La Health Care Center, 288 NLRB 334 (1988); and
readily obtainable from Respondent's files. Bundy Corp.,
supra.
Accordingly, I conclude that Respondent has delayed
furnishing relevant information to the Union for an un-
reasonable amount of time and has thereby violated Sec-
tion 8(a)(1) and (5) of the Act. Bundy, supra; Shangri-La,
supra; Valley Inventory, supra. See also Aeolian Corp., 247
NLRB 1231, 1243-1244 (1980).
Moreover, not only was this information not supplied
in a timely fashion, but it was also incomplete and out of
date. Thus the information as to wage rates and classifi-
cations was dated May 31, some 2 months before the
date it was furnished. Indeed Foner complained about
the fact that there had been new hires since May 31, and
the Union wanted an up-to-date list. The Union was
never provided with such a list.
It is clear that the Union is entitled to an updated list
of employees and their wage rates and classifications.
Potters' Medical Center, 289 NLRB 201 (1988); Shangri-
La, supra. Therefore Respondent further violated Section
8(a)(5) by failing to provide such an updated list of em-
ployees on July 27.
As to completeness, the information supplied on July
27 contained no reference to and did not include any of
the fleshers. Foner also objected to this omission at the
July 27 meeting, pointing out that he did not even know
whether the fleshers had received a wage increase due
them under the Local 1518 contract. Since Respondent
never furnished this information to the Union, it has fur-
ther violated Section 8(a)(5) by its failure to do so.11
Finally, the record discloses that at the June 15 meet-
ing, Respondent presented its written proposal, which in-
cluded a wage cap for certain employees. This item pro-
duced a substantial amount of consternation from the
Union, since it felt the proposal was aimed primarily at
union supporters. Edelstein explained that Respondent
had no intent to target supporters, but that the current
wages of these employees are "way out of line." Foner
questioned this assertion, and noted that some of his
union shops provide for wages of $10 per hour, more
than Respondent was paying. Edelstein answered that he
knew that there are shops that do not pay as much as
Respondent. Foner asked Edelstein for the names of
these shops; because he didn't know of any. Edelstein
promised to supply the Union with these names, but
never did so.
The complaint alleges that Respondent's failure to
supply this information "supporting Respondent's claim
that its wage rates were above prevailing industry stand-
ards," is violative of the Act. Respondent argues that
Edelstein's remarks about wages being "out of line" was
an incidental "off the cuff" remark, and that Respondent
never grounded any refusal on its part to amend its wage
proposal on the position that its wages were out of line
with industry.
Respondent further argues that unlike NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956), there is no casual link be-
tween the information request and its refusal to meet the
bargaining demand. Moreover it argues that it never as-
serted an inability to pay. Thus, Respondent contends
that it was not obligated to supply this information to the
Union.
The Board has long held that an employer is obligated
to supply to the union the results of wage surveys that it
had taken or utilized, where it relied on such surveys in
its bargaining positions. Mobil Exploration & Production,
295 NLRB 1179 (1989); General Electric Co., 192 NLRB
68 (1971), and General Electric Co., 188 NLRB 920
" Respondent's reliance on O'Bnen's testimony that the Union knew
who the fleshers were and how much they earned, because the fleshers
were members of a sister local is misplaced. The fleshers membership in
the sister local would not have informed the Union whether these em-
ployees had received a raise pursuant to the Teamsters contract, a fact
which as noted Foner pointed out to Edelstein at the July 27 meeting, as
a reason for his dissatisfaction with Respondent's submission.
TUBARI, LTD. 1229
(1971), both cases enfd. 466 F.2d 1177 (6th Cir. 1972).
This obligation includes the requirement to supply the
names of the employers surveyed; Winges Co., 263
NLRB 152, 155-156 (1982) so that the union could deter-
mine the accuracy of the employer's assertions General
Electric, supra, 466 F.2d at 1184.
The rationale for these decisions is cogently set forth
by the court of appeals in General Electric, supra, and ap-
plies equally to the instant case. As the court held,
"When the Company takes the position that its wage
rates are competitive in the local areas . . . which pre-
sumably would back up the Company's position, then it
is only reasonable that the Union should be given suffi-
cient data to determine whether the Company's position
is accurate or justified." Id. 466 F.2d at 1184.
The court then proceeded to a discussion of Truitt,
supra, cited by Respondent, relying on the oft-cited
quote therein:
Good faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. This is true about an asserted inability to
pay an increase in wages. If such an argument is im-
portant enough to present in the give and take of
bargaining, it is important enough to require some
sort of proof of its accuracy. [351 U.S. at 152-153.]
The court added that the Truitt rationale cited above
has not been confined to cases in which the employer's
defense is inability to pay. Id. at 1184 citing NLRB v.
Western Wirebound Box, 356 F.2d 88 (9th Cir. 1966).12
Finally, the court observed, "if the Union cannot
meaningfully evaluate the employer's proof, it cannot
know whether the company's claims are honest or accu-
rate. The employer must be ready to back up its wage
claims with factual proof which affords the Union an op-
portunity to fairly understand the merits of the employ-
er's positions." 466 F.2d at 1184.
Here, while the evidence is not clear whether or not
Respondent conducted a survey, it is undisputed that
Edelstein characterized Respondent's current wages as
"way out of line," as a justification for its proposals for a
wage cap. Moreover, in response to the Union's assertion
that it had shops that were making $10 an hour, Edel-
stein countered that he knew of shops that do not pay as
, much as Respondent. Respondent's characterization of
Edelstein's remarks aiN the cuff" is misplaced. In fact
these comments by Ede tein were virtually the only
reason that he gave in suppbrt of Respondent's position
that a wage cap is appropriate. Thus, if the assertion by
Edelstein that he knew of other shops that paid lower
wages than Respondent, was "important enough to
present in the gave and take of bargaining, it is important
enough to require some sort of proof of its accuracy."
Truitt, supra at 176; General Electric, supra at 1184; West-
ern Wirebound Box, supra at 91.
12 In that case the Ninth Circuit applied Truitt to a request for produc-
tion data sought by a union. The court held therein, "we see no reason
why, under the same rationale, an employer who insistently asserts that
competitive disadvantage precludes him from acquiescing in a union
wage demand, does not have a like duty to come forward, on request,
with some substantiation" 356 F.2d at 91.
Thus since Respondent has asserted as at least one
reason for its proposals that its wages were "way out of
line," and that other employers pay less, it must provide
the Union with the names of these employers to enable
the Union to test the accuracy of such facts. It may be of
course, as Respondent argued during the trial that Edel-
stein was merely engaged in "puffing" when he made
these assertions. If that is so, and if in fact he was not
aware of any other employers that pay less than Re-
spondent, then that fact must also be disclosed to the
Union.
Respondent argues also that the Union never made a
request for this information in writing, as was its previ-
ous requests, and that the oral request was never reiterat-
ed. I find these facts to be irrelevant. There is no legal
requirement that information requests be in writing, nor
that they be repeated.
Accordingly, I conclude based on the above analysis
and precedent, that Respondent has violated Section
8(a)(5) of the Act by refusing and failing to provide the
information as to the employers that it allegedly believed
were paying lower wages than Respondent.
B. The Alleged Surface Bargaining
General Counsel contends that the evidence establishes
that Respondent entered into negotiations with a fixed
intent to frustrate progress at the bargaining table, and
that it has bargained in bad faith with the Union. Gener-
al Counsel relies on Respondent's "punitive contract pro-
posals, dilatory bargaining tactics, and recent history of
unfair labor practices" to support its contention. I am not
persuaded that the record supports General Counsel's
position, primarily because in my view "the Union did
not test the Respondent's willingness to bargain, and that
the Respondent's conduct cannot therefore be found un-
lawful." Captain's Table, 289 NLRB 22 (1988).
With respect to Respondent's history of unfair labor
practices, General Counsel relies on the prior Board
case, and the violations found, including statements by
Jack Glass, Respondent's president, that he would never
bargain with the Union and that the only thing the
Union does is close shops. However, I note that these re-
marks by Glass as well as the other violations found, oc-
curred in the fall of 1984, some 2-1/2 years before the
bargaining began on April 1, 1987. Thus, in my view Re-
spondent's conduct in the prior case is too stale and
remote in time to be considered a significant indication
of bad-faith bargaining in 1987. L. W. Le Fort Co., 290
NLRB 344 (1988).
General Counsel also relies on Respondent's postcerti-
fication implementation of a new health and welfare plan
as evidence of bad faith. While conceding that this con-
duct is not alleged to be unlawful, General Counsel notes
that Respondent sought to improve the very term (health
and welfare plan) which the Board found had been at the
core of the employees' dissatisfaction with the Team-
sters, and the source of their attraction to the Union. I
find this argument to be somewhat perplexing, and un-
convincing. Since General Counsel has not alleged that
Respondent violated the Act by either unilaterally grant-
ing the benefit or granting the benefit in order to under-
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mine the Union, I find it difficult to understand how it
can argue that in these circumstances, bad faith is estab-
lished. In effect General Counsel is asking me to find
that Respondent granted the benefit to employees to un-
dermine the Union's status, a clear 8(a)(1) violation,
while at the same time failing to include such a violation
in the complaint. I find it inappropriate to do so. More-
over I find the evidence insufficient in any event to es-
tablish such an assertion, nor to ascribe any bad-faith mo-
tivation to Respondent's decision to continue providing
medical coverage to its employees. Indeed it appears that
Respondent would have been violating the Act, if it had
not maintained medical coverage for its employees, not-
withstanding the expiration of the Local 1518 contract.
Christopher Street Owners Corp., 294 NLRB 277 (1989).
Moreover, it is also apparent that even the Union con-
sidered Respondent's action in maintaining medical cov-
erage for its employees to be a sign of Respondent's
good faith, and in fact Mason, its chief negotiator, made
such a comment at the table. Accordingly, I do not find
that Respondent's providing medical coverage to its em-
ployees to constitute any evidence of bad-faith bargain-
ing.
Turning to General Counsel's contention that Re-
spondent engaged in "dilatory tactics," General Counsel
argues that Respondent unlawfully delayed the presenta-
tion of a counterproposal for the first 2-1/2 months of
bargaining. General Counsel relies on Whisper Soft Mills,
267 NLRB 813, 815 (1983), revd. on other grounds 754
F.2d 1381 (9th Cir. 1984), in support of its position.
I find Whisper Soft Mills, supra, to be clearly distin-
guishable to the instant matter, and that General Counsel
has failed to establish that Respondent unreasonably de-
layed in presenting its counterproposal. In Whisper Soft
Mills, supra, the union made its wage proposal in March,
and the employer delayed presenting its counterproposal
until August. The Board relying particularly on the facts
that the union during the course of seven subsequent ses-
sions prior to the session when the counterproposals
were presented, was constantly asking for such a propos-
al," found that Respondent's delay clearly frustrated
bargaining in violation of the Act.
The facts are far different, and contain no evidence
that Respondent's delay in submitting a counterproposal
hampered or frustrated bargaining. The record reveals
that the Union presented its proposals at the first meeting
on April 1, which proposal contained a revolutionary
change from Respondent's present wage structure. Thus,
the Union demanded a change to "community piece
work" system for all of Respondent's floorworkers. This
proposal resulted in substantial discussion during this and
the next two bargaining sessions held on April 6 and 20.
Finally at the April 20 session, the Union became con-
vinced that Respondent would not agree to a "piece
work" system for floorworkers and withdrew its previ-
ous proposal. After that point the Union never presented
another proposal to Respondent.
13 For example, the Board noted that at one point the union's attorney
requested that the employer make a wage proposal because the union
"had to have" one. On another occasion, the union's attorney indicated
that the employer's failure to make a wage proposal had severely limited
the ability of the union to bargain.
Although Respondent's attorney had initially promised
to submit a counterproposal at the meetings of April 6
and 20, and apologized for failing to do so, this apology
hardly establishes bad faith in failing to submit a counter-
proposal for a 3-week period. Moreover, during the
April 6 meeting part of the session was spent discussing
the issue of the reinstatement of employee Mujica, and
most of the April 20 session was spent discussing the ter-
mination of employee Hernandez." Thus I find that the
failure to submit a counterproposal as promised between
April 1 and 20 had no appreciable affect on the bargain-
ing, and was not unlawful.
After the meeting of April 20, the parties did not meet
until June 15, due apparently in large part to the Hernan-
dez arbitration. At that meeting, the first subsequent to
April 20, Respondent presented its counterproposal. I
note that the Union had no proposal on the table at that
time, and that Respondent was in effect making a coun-
terproposal to nothing. I find it disingenuous, and clearly
without merit, for General Counsel to argue that Re-
spondent demonstrated bad faith by not submitting a
counterproposal during a period of time when the parties
were not meeting, due to the Union's insistence on an ex-
pedited arbitration, and at a time when the Union had no
proposal outstanding which required a response.
Therefore, I find that General Counsel has fallen far
short of establishing that Respondent's delay in submit-
ting its counterproposal frustrated bargaining or consti-
tutes any evidence of bad faith on its part.
General Counsel also considers Respondent's refusal to
supply information, as evidence of dilatory tactics and
bad faith. While I have found above that Respondent
violated Section 8(a)(5) of the Act by various acts of re-
fusals to supply and delays in supplying information to
the Union, such a finding does not automatically trans-
late to a finding that Respondent bargained in bad faith
with no intention to reach an agreement. Indeed the
Board has frequently found that employers who have
violated the Act by refusing to submit information, as
well as committing extensive other violations of the Act,
had nonetheless fulfilled their obligation to bargain in
good faith with the Union. American Commercial Lines,
291 NLRB 1066 (1988); Albritton Communications, 271
NLRB 201, 206 (1984), enfd. 766 F.2d 812, 822-823 (3d
Cir. 1985).
I do not construe the violations I have found as suffi-
cient to taint Respondent's entire bargaining, and in fact
I am not convinced that these violations contributed sub-
stantially to the breakup of negotiations. In this connec-
tion I note particularly the testimony of O'Brien con-
cerning the discussion of the Union's strategy. At a meet-
ing of union officials and its attorney, Foner explained to
the attorney that he felt that Respondent was bargaining
in bad faith because it had proposed a reduction in wages
for strongest union supporters, elimination of 1 sick day,
and no union-security clause. He recommended that the
Union break off negotiations, file charges, and take other
14 In this connection I note that Foner, the Union's spokesman, stated
that It did not want to negotiate with Respondent under the cloud of the
Hernandez discharge. Respondent, although under no legal obligation to
do so, agreed to an expedited arbitration of the termination.
TUBARI, LTD. 1231
action in an attempt to persuade Respondent to bargain
fairly with the Union. Significantly, Foner made no men-
tion of the Respondent's failure to provide information to
the Union, as contributing in any way to his perception
that Respondent was not bargaining in good faith. While
Foner's beliefs are not of course controlling, I believe
that it does bear upon the effect of Respondent's refusals
to supply information on the termination of negotiations,
since it was the Union that decided to do so.
Accordingly, I conclude that Respondent's unlawful
refusals to provide timely information to the Union is not
sufficient to establish that Respondent engaged in surface
bargaining.
Finally, and it appears most forcefully, General Coun-
sel argues that Respondent's punitive and regressive bar-
gaining proposals establish its bad faith. She argues that
its proposals "comprise a package which constitute a a
significant step backwards for the employees and a fur-
ther step towards the effective emasculation of the
Union." General Counsel recognizes that the Act does
not force an employer to make a concession on any spe-
cific issue, NLRB v. National Insurance Co., 343 U.S.
395, 494 (1952), but asserts that an "employer may not
implement a policy of intransigence designed to circum-
vent the bargaining process." Quoting from Palestine
Coca Cola, 269 NLRB 639, 644 (1984), it is further
argued that, "where an employer insists on a set of terms
which would place the employees in a worse, or no
better, economic position than had there been no con-
tract at all, thereby demonstrating a desire to penalize
the employees, undermine the Union, or reject collective
bargaining, a finding that it acted in bad faith is inescap-
able."
Finally, General Counsel cites Reichhold Chemicals,
288 NLRB 69 (1988), where the Board explicitly upheld
the propriety of analyzing bargaining proposals where
"in some cases specific proposals might become relevant
in determining whether a party has bargained in bad
faith."
General Counsel points to the regressive nature of Re-
spondent's proposals particularly its proposal for a wage
cap which would penalize primarily union supporters, its
refusal to accept a seniority clause and a union-security
clause, and its proposals to reduce holidays and sick
leave. In this connection, General Counsel seems to
argue, as did the Union during negotiations, that Re-
spondent's inclusion in its previous contract with the
Teamsters of seniority, union security and other clauses
in issue, somehow obligates it to continue such benefits
in successive contracts. However, it is well settled that
"the existence of such a clause in previous contracts does
not by itself obligate the parties to include it in succes-
sive contracts." Challenge Cook Bros., 288 NLRB 387
(1988), and cases cited.
Here, contrary to General Counsel's assertion, Re-
spondent did provide reasons and justification for its pro-
posals to change the clauses in significant dispute. Thus
as to seniority, Respondent contended that in its view, in
the event of a layoff the most productive workers should
be retained. Asserting that this proposal evidences bad
faith is even more suspect, in view of the fact that the
Union's proposal which was submitted on April 1 and
withdrawn two meetings later, did not contain a seniori-
ty clause. Thus the Union did not even have a proposal
on the table, nor had it ever made one with respect to
seniority, when Respondent made its proposal. Indeed
the emphasis by General Counsel and the Union on the
terms of the prior contract is made less cogent by the
Union's prior conduct with regard to that agreement.
Thus it was the Union which initially proposed a radical
departure from the prior Teamsters contract by changing
to a "piece work system" and then failed to ever make a
new proposal after withdrawing its initial demands. It
hardly behooves the Union to complain when Respond-
ent now seeks to also change some terms of that same
agreement, that the Union was prepared to dismantle.
As to union security, once again Respondent advanced
a justification for its proposal to eliminate union security.
It claimed that the fleshers did not wish to join the
Union, and that Respondent did not want to force them
to do so. In this connection, General Counsel argues that
Respondent's positions with respect to the fleshers "is
evidence of an unwillingness to accept the Union as their
representative, and its hope to fragment the unit." Thus
General Counsel contends that this is further evidence of
bad faith. I cannot agree.
While it is true that Respondent has since the initial R
case taken the position at times that fleshers should not
be in the unit, it never insisted on such a position, and at
all times expressed its willingness to bargain on behalf of
fleshers. Indeed its proposal of a maintenance-of-mem-
bership clause, as well as its initial refusal to agree to a
union-security clause, was based on its belief that fleshers
did not wish to be union members. I do not find these
positions to be evidence of bad faith, particularly since
there appears to be some basis for Respondent's asser-
tions as to the fleshers desires. Thus the fleshers are
highly skilled, highly paid (over $100,000 a year in some
cases) employees, who never had much interest in repre-
sentation by the Union. None of the fleshers signed cards
for the Union, and it appears that all of them crossed the
Union's picket line when the floorworkers struck. There-
fore Respondent's assertion that fleshers had told Re-
spondent's officials that they did not wish to be union
members appears to be credible. Indeed the Union by its
conduct seemed to recognize this fact, and at one point
in the negotiation, agreed to remove the fleshers from
the unit, although that concession was immediately re-
tracted.
Therefore, I find no evidence of bad faith with respect
to Respondent's bargaining concerning the fleshers.
As for Respondent's proposals for a wage cap, as well
as its demand to reduce holidays and sick days, Respond-
ent again, contrary to General Counsel's assertions, pro-
vided a justification. Respondent claimed that its costs
had gone up, and that these benefits and wages were
"way out of line." Edelstein further asserted that had he
been the negotiator at the time, these benefits and wages
would not have been agreed to. While the Union and the
General Counsel may not be persuaded by these explana-
tions, such is not sufficient to establish that the proposals
were made in bad faith. While as I have noted above,
Respondent has violated its duty to supply information in
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
support of its explanation, this hardly constitutes suffi-
cient evidence to establish that the proposals were made
to frustrate bargaining with no intent to reach agree-
ment.
A close examination of the language in cases cited by
General Counsel only reinforces my conclusion, that as
is Captain's Table, supra, the Union here has not suffi-
ciently tested Respondent's willingness to bargain in
good faith.
In Palestine Coca Cola, supra, the language quoted by
General Counsel talks about an employer insisting (em-
phasis added) on regressive terms. In Reichhold, supra,
the Board in modifying its previous decision (277 NLRB
639), indicated that "in some cases specific proposals
might become relevant in determining whether a party
has bargained in bad faith. The Board's earlier decision is
not to be construed as suggesting that this Board has pre-
cluded itself from reading the language of contract pro-
posals and examinating insistence [emphasis added] on ex-
treme proposals in certain situations." [288 NLRB 69.]
Additionally later on in Reichhold, supra, the Board
sought to justify its decision to in some cases evaluate
proposals. It held, "indeed the fundamental rights guar-
anteed by the Act—to act in concert, to organize and to
freely choose a bargaining agent—are meaningless if
their employer can make a mockery of the duty to bar-
gain by adhering [emphasis added] to proposals which
clearly demonstrate an intent not to reach an agreement
with the employees' selected collective bargaining repre-
sentative." Id. at 70. Finally, when the Board turned to
the merits of the particular facts in Reichhold, supra it
concluded that "Respondent did not demonstrate the
kind of intransigence or insistence [emphasis added] on ex-
treme proposals which is evidence of an overall intent to
frustrate the collective bargaining process." Id. at 71. See
also American Commercial Lines, supra, where the Board
reversed an administrative law judge's finding of a viola-
tion based on a similar conclusion.
Therefore it appears that the evidence must establish
intransigence, insistence, or rigid adherence to extreme
proposals for the Board to consider such conduct evi-
dence of bad faith. By no stretch of the imagination can
such a finding be made based on the facts herein, Re-
spondent's counterproposal which at the time was the
only proposal by either side on the table, was bargained
about for only two meetings.
As in Captain's Table, supra, this proposal "was a start-
ing point for future negotiations. The Respondent neither
stated nor suggested by its conduct that it intended its
first wage offer to be the last." 289 NLRB at 24.15
In this connection the observation of an administrative
law judge, adopted by the Board is particularly apt:
While it is true that Respondent sought wide rang-
ing and substantial concessions, it is not unusual at
the outset of negotiations for both parties to make
demands which they realize in all likelihood will
not be included in the final agreement. This is par-
15 To the contrary Edelstein had specifically told the Union at the off-
the-record meeting that "something could be worked out" with respect
to a wage cap of 95 cents per hour, which he knew the Union would not
accept.
ticularly true in the matter of wages. . . . The
Board does not normally inject itself into the nego-
tiations to proscribe such proposals. More often, the
give and take of negotiations govern the final re-
sults. . . . It is not for the Board to decide, except
perhaps in the most extreme cases, that contract
proposals, themselves, particularly at the outset of
negotiations, are illegal, however repugnant they
may appear to the other party. [I. Bahcall Indus-
tries, 287 NLRB at 1281].
Similarly as in Captain's Table, supra, the "Respond-
ent's wage offer was on the table, awaiting a response, at
the close of the parties final session." Here, Respondent
had, unlike the Employer, demonstrated flexibility in bar-
gaining. The Employer had withdrawn its proposal for a
reduction in holidays, and modified its proposal for no
union-security clause to propose a maintenance-of-mem-
bership clause. It also had agreed to accept use of the
union medical plan. Significantly, it had also reduced its
demands for a wage cap by 25 cents an hour. See also
Reichhold, supra, where the Board relied on the fact that
Respondent had made some movement on its previous
demands for changes in prior practices, to indicate that it
had not demonstrated the kind of intransigence and in-
sistence on extreme proposals which evidences bad faith.
Reichhold, supra. See also I. Bahcall, supra; American
Commercial Lines, supra.
It is also important to emphasize. that the parties en-
gaged in only six bargaining sessions, the first four ses-
sions of which dealt with discussions of the Union's pro-
posal for a restructuring of Respondent's pay system,
which the Union withdrew, plus a substantial discussion
about the status of two employees. In this area, I once
again stress that it was the Union who insisted on resolu-
tion of the Hernandez discharge, with Foner comment-
ing that it "didn't want to negotiate under the cloud of
the Hernandez discharge." Respondent, although under
no obligation to do so, agreed to an expedited arbitra-
tion, an action which not only demonstrated Respond-
ent's good faith, but also expedited the bargaining proc-
ess, by removing that issue from stalling the negotiations.
I must also again emphasize that when negotiations
ended, the parties had spent but two sessions discussing
Respondent's proposals, and the Union had no demands
on the table at the time. After withdrawing its demand
for a piecework system, the Union chose not to make
any new proposals, but to await presentation of Re-
spondent's promised offer. Thus this case is even strong-
er then Captain's Table in finding that Respondent's posi-
tion had not been tested, since in that cage, at least the
Union had an offer on the table." Moreover, another
factor herein, which even more persuasively then Cap-
tain's Table, supports such a finding, is how the negotia-
tions broke off. In Captain's Table both parties were at
General Counsel's argument that the Union had an offer on the
table, in its demand that Respondent grant the 45-cent-per-hour increase
due under the IBT contract is not convincing. That position of the
Union, was in my view, a starting point for negotiations rather than a
demand. Thus the Union failed to include such a demand in its written
proposals, and kept insisting that Respondent was already obligated to
have granted such Increases under the prior contract.
TUBARI, LTD. 1233
fault in failing to schedule another meeting. Here on the
contrary, a conscious decision was made by the Union to
cut off negotiations, and attempt to convince Respondent
to change its bargaining stance by means other than ne-
gotiations. Obviously these tactics, such as filing charges,
going to the newspaper, and passing out leaflets were not
successful." This case appears to be little more than an
attempt by the Union to use the Board to rescue the
Union from Foner's miscalculation as to bargaining strat-
egy."
Thus I conclude that as in Captain's Table, supra, "the
bargaining process in this case reveals that the normal
give and take of negotiations had just begun, . . . when
the Union filed the instant unfair labor practice charges.
Under these circumstances,. . . we cannot find that the
facts establish that the Respondent exhibited an unwill-
ingness to reach agreement." Captain's Table, supra.
CONCLUSIONS OF LAW
1. Respondent Tubari, Ltd, Inc. is an employer en-
gaged in commerce and is an industry affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Fur Dressers, Local 1-3, FLM, FJC, United Food
and Commercial Workers, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following unit is now, and has been at all times
material, an appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act:
All regular full-time and part-time employees, in-
cluding floorworkers, fleshers, chauffeurs and help-
ers employed by Respondent at its Saddle Brook,
New Jersey location, but excluding all executives,
clerical employees, guards and supervisors as de-
fined in the Act.
4. The Union, has been, the exclusive bargaining repre-
sentative of Respondent's employees in the above de-
scribed unit since February 20, 1987, when it was certi-
fied as such, and continues to remain such representative
for the purpose of collective bargaining with respect to
rates of pay, wages, and hours of employment, and other
terms and conditions of employment of those employees.
5. By failing and refusing to provide updated and
timely information to the Union, including names, ad-
dresses, wage rates, and job classifications of all unit em-
ployees, plus the names of the Employers whom it as-
serts pays lower wages to its employees than Respondent
does, Respondent has violated Section 8(a)(1) and (5) of
the Act.
6. Respondent has not violated the Act in any other
manner as alleged in the complaint.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
17 Indeed the record does not even establish whether or not the Union
ever actually went to the papers or passed out leaflets.
' 8 I note in this connection that O'Brien disagreed with Foner's posi-
tion, and suggested that negotiations continue. He was overruled by
Foner and the Union's attorney.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall recommend that it cease and desist there-
from, and take certain affirmative action designed to ef-
fectuate the policies of the Act, including the furnishing
of updated complete information to the Union.
The General Counsel has requested that the certifica-
tion year be extended for 1 year from the date Respond-
ent provides the information and begins to bargain in
good faith. Avis Rent-A-Car System, 285 NLRB 1032
(1987); Mar-Jac Poultry Co., 136 NLRB 785, 786 (1962).
The Board has long held that where an employer has,
during part or all of the year immediately following a
certification, refused to bargain with the Union, the
Board will take measures to assure a period of at least a
year of good-faith bargaining during which the bargain-
ing representative need not fend off claims that it has lost
its majority support. Dominguez Valley Hospital, 287
NLRB 149 (1987); Colfor Inc., 282 NLRB 1173, 1174-
1175 (1987) Mar-Jac, supra.
The measures taken by the Board to assure a period of
good-faith bargaining generally includes an extension of
the certification year for some period of time. Valley In-
ventory Service, 295 NLRB 1146 (1989); Whisper Soft
Mills, supra at 816; Mar-Jac, supra. However, in some
situations, the Board will not extend the certification
year, but merely require bargaining on request for a rea-
sonable period of time. a J. Aigner Corp., 257 NLRB
669 (1981); San Antonio Portland Cement Co., 277 NLRB
309 (1985); Libbie Convalescent Center, 251 NLRB 817
(1980); Federal Pacific Electric Co., 215 NLRB 861
(1974). Moreover, even where an extension of the certifi-
cation year is ordered, the extension need not necessarily
be the product of simple arithmetic calculation. Collor,
supra; Glomac Plastics, 234 NLRB 1309 (1978).
In assessing the appropriate remedy in these situations,
it is necessary to "take into account the realities of col-
lective bargaining negotiations by providing a reasonable
period of time in which the Union and the Respondent
can resume negotiations and bargain for a contract with-
out unduly saddling the employees with a bargaining
representative that they may no longer wish to have rep-
resent them." Colfor, supra at 1175. Various factors are
considered in making such an evaluation, including the
nature of the violations found," the number extent of
and dates of collective-bargaining sessions, 2° the impact
of the unfair labor practices on the bargaining process,"
and the conduct of the Union during the negotiations.22
My evaluation of these factors leads me to conclude
that a 6-month extension of the certification year is ap-
propriate. Here the Union was certified on February 20,
1987, and the parties bargained for approximately a 4-
month period from April 1 to July 27. During this period
of time, Respondent did not engage in overall bad-faith
surface bargaining, but did violate the Act by refusing to
12 Glomac, supra: G. J. Aigner, supra; Libbie, supra.
2 ° G. J. Aigner, supra; National Medical, supra; CoOr, supra.
21 Collor, supra; Dominguez Valley, supra.
22 Bnarchjf Pavilion, 260 NLRB 1374, 1379 (1982), enfd. mem. 725
F.2d 669 (3d Cir. 1983).
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
submit relevant updated and timely information to the
Union; including refusing to supply information allegedly
supporting its proposal for a wage cap. Similar refusals
to furnish information have been deemed sufficient to
warrant an extension of the certification year. Dominguez
Valley, supra; Winges Co., 263 NLRB 153, 157 (1982).
Here Respondent failed to ever completely comply with
the Union's information requests for the names, address-
es, job classifications, dates of hire and wage rates of all
the unit employees. Thus when it supplied the names and
addresses of all employees on March 30, the list did not
include the dates of hire, wage rates, or classifications of
employees as had been requested by the Union. When
after additional requests, Respondent supplied additional
information on July 27, this list was out of date, and in-
complete, as it did not include any information about the
fleshers. While I conclude that these failures to supply
pertinent information may have hampered the Union in
its preparation for bargaining, I do not believe that they
had a significant impact on the breakdown of negotia-
tions. While one could presume that the failure to re-
ceive this information precluded the Union from formu-
lating its demands, the evidence here is to the contrary.
Thus O'Brien testified that after the Union withdrew its
piecework proposal, it decided not to make a new pro-
posal until Respondent submitted its promised counter-
proposal. Thereafter Respondent's proposal for a wage
cap and other cuts dominated the bargaining thereafter.
Thus it does not appear that the failure to obtain the rel-
evant information from Respondent was responsible for
the failure of the Union to make a proposal or the break-
up of negotiations. Indeed O'Brien further admitted, as
noted above, that Foner when explaining his reasons for
believing Respondent was bargaining in bad faith, did
not mention the refusals to supply information, as a
factor in his decision to cut off negotiations.
However, in my view the refusal to supply informa-
tion as to the other Employers who allegedly paid lower
wages than Respondent to its employees, stands on a dif-
ferent footing. It is clear that the primary reason for the
Union's belief that Respondent was not bargaining in
good faith, and its consequent decision to cease negotiat-
ing, was Respondent's proposal for a wage cap, dispro-
portionately affecting union supporters. Respondent's re-
fusal to supply information justifying its position, I find
reasonably could have had some affect on the course of
bargaining. Thus had Respondent supplied the Union
with the names of these Employers, and the Union found
that Respondent's assertion were accurate, the Union
may very well have been more amenable to some sort of
a wage reduction. On the other hand, if as Respondent
argues, Edelstein's statements were merely "puffing,"
and it turns out Respondent knew of no other employers
that paid lower wages than Respondent, this disclosure
might have persuaded Respondent to reduce or even
withdraw its demands for a wage cap.
Finally, I have also considered the Union's conduct,
Briarcliff; supra, including particularly its decision to pre-
maturely cut off negotiations, as well as its position that
the discharge of Hernandez should be disposed of before
serious bargaining began. I find this latter position of the
Union to have resulted in the loss of valuable time that
could have otherwise been spent on contract negotia-
tions.
Therefore I conclude, based on consideration of the
above factors, a 6-month extension of the certification
year, will provide the parties with a reasonable interval
in which to resume negotiations and possibly reach an
agreement, without unduly saddling employees with a
bargaining representative they may no longer support.
Colfor, supra; Winges, supra; Dominguez Valley, supra.
Therefore I shall recommend that the certification year
be extended for 6 months from the time Respondent
makes the information referred to heretofore available to
the Union. Winges, supra.
I note that while the certification year will be ex-
tended for 6 months, Respondent's duty to bargain will
not necessarily stop when the certification year expires.
Colfor, supra; citing Celanese Corp. of America, 95 NLRB
664 (1951), and Terrell Machine Co., 173 NLRB 1480
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970).
On the foregoing findings of fact, conclusions of law,
and on the entire record, and pursuant to Section 10(c)
of the Act, Tissue the following recommended23
ORDER
The Respondent, Tubari, Ltd., Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union by failing and
refusing, on request, to furnish the Union timely, updated
and complete information which is relevant to the
Union's performance of its function as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit.
All regular full-time and part-time employees, in-
cluding floorworkers, fleshers, chauffeurs and help-
ers employed by Respondent at its Saddle Brook,
New Jersey location, but excluding all executives,
clerical employees, guards and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union with an updated and complete
list of all bargaining unit employees, their addresses, job
classifications, dates of hire, and wage rates.
(b) Furnish the Union with the names of all Employers
whom Respondent believes pay lower wages to their em-
ployees than Respondent pays to its employees.
(c) On compliance with paragraphs 2(a) and (b) above,
on request bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employ-
ment with the Union, and for 6 months thereafter as if
23 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
TUBARI, LTD. 1235
the initial year of certification has been extended, and if
an understanding is reached embody it in a written
signed agreement.
(d) Post at its Saddle Brook, New Jersey, facility
copies of the attached notice marked "Appendix."24
Copies of the notice, on forms provided by the Regional
Director for Region 22, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 22 within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations not found.
24 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."
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with the Fur Dressers,
Local 1-3, FLM-FJC, United Food and Commercial
Workers, AFL-CIO, by failing and refusing, on request,
to furnish the Union timely, updated and complete infor-
mation which is relevant to the Union's performance of
its function as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit.
All regular full-time and part-time employees, in-
cluding floorworkers, fleshers, chauffeurs and help-
ers employed by Respondent at its Saddle Brook,
New Jersey location, but excluding all executives,
clerical employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish the Union with an updated and com-
plete list of all bargaining unit employees, their address-
es, job classifications, dates of hire, and wage rates.
WE WILL furnish the Union with the names of all Em-
ployers whom we believe pay lower wages to their em-
ployees than we pay to our employees.
WE WILL after supplying the Union with the above in-
formation, on request bargain collectively in good faith
concerning wages, hours, and other terms and conditions
of employment with the Union as the exclusive collec-
tive-bargaining representative of our employees in the
above described unit.
WE WILL regard the Union as the exclusive bargaining
agent as if the initial year of certification has been ex-
tended for an additional 6-months period. If an under-
standing is reached we will embody it in a written signed
agreement.
TUBARI, LTD., INC.