A.M.F. Bowling Co.

National Labor Relations Board - Board Decisions

May 29, 1991

303 N.L.R.B. 167 (N.L.R.B. 1991)

167
303 NLRB No. 23
A.M.F. BOWLING CO.
1 The Charging Party Union filed a motion to strike certain portions of the
Respondent’s answering brief because they do not address arguments raised
by the General Counsel and the Union in their respective cross-exceptions. The
Respondent filed a response to the Union’s motion. After reviewing the par-
ties’ submissions on this subject, we have decided to deny the Union’s motion
as lacking in merit.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings. In adopting
the judge’s credibility findings, we correct below certain misstatements the
judge made that we find are insufficient to affect our ultimate conclusions in
this case. Other corrections of factual errors in the judge’s decision are sub-
sumed in the recitation of facts relevant to our finding that the Respondent
bargained in bad faith over the subject of wages.
In summarizing the Respondent’s bargaining proposals at the close of the
afternoon and evening negotiating sessions held on January 8, 1987, the judge
twice stated that the Respondent was continuing to insist on language propos-
als that would eliminate the Union’s ability to grieve job-grading decisions.
Further, in the fourth paragraph of his ‘‘Analysis and Conclusions,’’ the judge
stated that throughout the entire course of negotiations the Respondent pro-
posed to eliminate decisions relating to job selection and job grading from the
grievance procedure. It is clear from the record, however, that the Respondent
dropped both of these proposals during the parties’ negotiations on January 8.
Further, the judge stated in the sixth-to-last paragraph of his ‘‘Analysis and
Conclusions’’ that the Respondent had orally declared a bargaining impasse
on January 8. The record shows, however, that the Respondent delared im-
passe for the first time in the telegram it sent the Union on January 16.
3 Based on the unlawful unilateral changes the Respondent made here, the
judge ordered the Respondent to restore the terms and conditions of employ-
ment that were in effect before the Respondent declared a bargaining impasse.
The Charging Party Union has filed a cross-exception regarding the judge’s
failure to include a requirement that the Respondent, in restoring the status quo
ante, not reduce any increases in wages and benefits the unit employees may
have received unless requested by the Union. We find merit in the Union’s
contention, and we have modified the judge’s remedy accordingly.
Further, it is clear that the backpay and other benefits owed to the unit em-
ployees resulted from the Respondent’s failure to apply the extended collec-
tive-bargaining agreement between the parties that expired on January 8, 1987.
For this reason, we conclude that the amounts due the discriminatees should
be computed in accordance with the Board’s formula in Ogle Protection Serv-
ice, 183 NLRB 682 (1970), with interest as provided in New Horizons for the
Retarded, 283 NLRB 1173 (1987), rather than, as the judge found, under the
formula stated in F. W. Woolworth Co., 90 NLRB 289 (1950).
4 All dates are in late 1986 or 1987.
A.M.F. Bowling Company, Inc. and United Steel-
workers of America, AFL–CIO, CLC, District
4. Cases 3–CA–13625, and 3–CA–13982
May 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 5, 1989, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party Union
each filed cross-exceptions and supporting briefs. Ad-
ditionally, the Respondent filed an answering brief to
the respective cross-exceptions, and the General Coun-
sel and the Charging Party Union each filed an an-
swering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions as modified, to modify the remedy,3 and
to adopt the recommended Order as modified and set
out in full below.
We find it unnecessary on the particular facts here
to pass on the judge’s finding that the Respondent gen-
erally engaged in surface bargaining during contract
negotiations with the Union. For the reasons set forth
below, we conclude, rather, that the Respondent vio-
lated Section 8(a)(5) of the Act by failing to provide
the Union with the wage surveys it conducted to jus-
tify the necessity for the substantial economic reduc-
tions contained in its bargaining proposals. Because the
Respondent’s unlawful conduct prevented a valid bar-
gaining impasse from occurring as the Respondent
claimed, we adopt the judge’s further findings that the
Respondent also violated Section 8(a)(5) by withdraw-
ing recognition from the Union, by making unilateral
changes, by direct dealing with the unit employees,
and by refusing to provide certain requested informa-
tion to the Union.
We find additional 8(a)(5) violations, which are al-
leged in the complaint and which the judge did not
specifically decide, in the Respondent’s post-imple-
mentation letter refusing to bargain unless the Union’s
position has ‘‘altered dramatically’’ and in its chief ne-
gotiator’s comment at the final bargaining session that
the Union ‘‘had wasted his time’’ by pursuing further
negotiations. We also conclude that the Respondent
independently violated Section 8(a)(1) of the Act by
precluding bargaining unit employees from participat-
ing in its severance plan. However, as discussed fully
below, we do not find that the Respondent violated
Section 8(a)(5) by insisting to impasse on its proposal
that would enable nonunit employees to perform bar-
gaining unit work without any limitation.
1. The record shows that on or about August 24,
1986,4 the Respondent signed an agreement to pur-
chase the bowling division of AMF, Inc. from Minstar.
A condition of the purchase agreement was that the
Respondent adopt all of Minstar’s collective-bargaining
agreements, including the contract with the Union cov-
ering about 75 production and maintenance employees
at the Lowville, New York plant involved here.
Minstar’s domestic manufacturing division at that time
consisted of the Lowville plant and another in Shelby,
Ohio. During the summer of 1986, Minstar negotiated
a new collective-bargaining agreement with another
labor organization representing the employees at the
Shelby plant that provided for reductions of 24 and 14
percent, respectively, in wages and benefits.
On September 24, the Union, which had enjoyed a
stable bargaining relationship with the Respondent’s
predecessors for about 20 years, notified the Respond-
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Although the Respondent claimed that this proposal was essentially the
same as its December 16 proposal to reduce employees’ wages by 24 percent,
the judge found that the Repondent actually was seeking additional cuts at this
time and that, therefore, the January 7 wage offer was regressive. It appears
from the record that the determinative of whether the Respondent was propos-
ing a wage reduction of 24 or 26 percent on January 7 turns on the number
of unit employees that the Respondent employed on that date. The evidence
on this point is not entirely clear. Nevertheless, based on Mallette’s testimony
that the weighted average of the Respondent’s January 7 bargaining proposal
was $6.72 per hour, we agree with the judge that this wage demand was re-
gressive when compared to the Respondent’s earlier December 16 proposal
which had a weighted hourly average of $6.86. However, as discussed below,
this finding is not critical to our ultimate conclusion that the Respondent bar-
gained in bad faith on this subject.
ent that it was terminating the existing contract that
would expire on December 8. On October 1, the Re-
spondent’s chief negotiator, Jack Burtch, sent the
Union a letter acknowledging the Union’s termination
letter and offering to meet with the Union on Novem-
ber 10. The Respondent subsequently closed the pur-
chase of the business from Minstar on November 21.
The first bargaining session was held on December
3. With respect to the wage issue that was the pivitol
subject during the parties’ negotiations, the credited
evidence discloses that the Union initially proposed a
2-year contract providing for an 8-percent wage in-
crease each year. After the Union submitted this pro-
posal, Burtch told the Union that the Respondent need-
ed to be more competitive and would require economic
concessions. Employee Daniel Ritz, the president of
the local, replied that the Respondent would have to
justify the need for economic concessions. Burtch, who
presented no specific bargaining proposals that day, re-
plied that the owners had not yet reviewed either the
contract or the operation itself. The parties, at Burtch’s
request, then agreed to a 30-day extension of the con-
tract until January 8.
At the second bargaining session on December 16,
the Respondent made its initial economic proposals
seeking reductions of 24 and 14 percent, respectively,
in wages and benefits. The Respondent at that time
sought to maintain the 10 job classifications that unit
employees held at the Lowville plant. The Respond-
ent’s wage proposal would have resulted in a weighted
average of $6.86 per hour for the unit employees as
compared to the existing $9.04 hourly average. When
Ritz asked Burtch why such extensive cuts were nec-
essary, Burtch said that the Respondent needed the
concessions to remain competitive. Ritz again de-
manded justification for the Respondent’s position, but
Burtch merely restated his initial proposal. Ritz then
counterproposed that the Union would reduce its wage
proposal from an 8-percent increase the first year to a
6-percent raise. When Burtch did not respond, Ritz
asked him what kind of wage rates the Respondent ul-
timately was seeking. Burtch again failed to respond.
Burtch also did not respond to Ritz’ suggestion that
the Respondent consider implementing a profit-sharing
plan so that the employees, if the Respondent had a
profitable year, could recoup any earnings they lost by
agreeing to lower wages.
Thereafter, on December 23, the Respondent’s
owner, Frank Genovese, told General Manager Rodney
Mallette to review the entire Lowville operation and
prepare new job classifications and accompanying
wage rates for the unit employees. Mallette devised a
unit structure with 16 job classifications and prepared
a wage proposal with a weighted average of $6.72 per
hour, which constituted a 26-percent reduction from
existing wage rates.
During the third bargaining session held on January
6, the Respondent made its initial noneconomic bar-
gaining proposals. The Respondent did not yet inform
the Union about the new wage and job classification
structure that Mallette had prepared.
On January 7, the parties met again with a Federal
mediator present. Burtch gave the Union Mallette’s
proposal in which the Respondent sought to reduce the
employees’ existing wages by 26 percent and to in-
crease the number of their job classifications from 10
to 16 percent. When the parties discussed this pro-
posal, Ritz stated that the new offer was even less than
the December 16 proposal. Burtch insisted that they
were the same.5 Ritz then proposed a bifurcated wage
structure in which the Respondent would freeze wages
for present employees during the first year and give
them a 3-percent raise the second year; the Respondent
could then apply its proposed wage reductions to new
hires. Burtch did not respond to the Union’s offer.
After the parties caucused and reconvened, Burtch
handed the Union a revised job classification structure
consisting of 10 job grades.
However, it was not until the parties next met on
June 8 that the Respondent gave the Union the wage
rates corresponding to its January 7 job classification
proposal. This offer again had a weighted average of
$6.72 per hour. After Ritz stated that the Union would
agree to the Respondent’s proposed reductions in
fringe benefits in exchange for a wage freeze the first
year, Burtch replied that the Union was not addressing
the Respondent’s need for a wage cut. Ritz requested
the Respondent to supply the Union with substantiation
or documentation as to why such a huge wage cut was
necessary. Although the Union made this request at
every meeting where the parties discussed the Re-
spondent’s demand for a wage cut, the Respondent
never furnished the Union with any such information.
That afternoon the Respondent presented the Union
with a 2-year wage proposal with a weighted average
of $7.10 per hour that amounted to a 22-percent reduc-
tion from existing wages. The unit employees unani-
mously rejected the Respondent’s latest contract offer
in a ratification vote held the same evening.
When the parties met on January 14, Burtch gave
the Union a new wage offer with a weighted average
169A.M.F. BOWLING CO.
6 Although the judge discredited Burtch’s testimony that he made this state-
ment on June 15, it is clear from the record that Ritz, the General Counsel’s
witness, admitted in his testimony that Burtch had offered to make unspecified
concessions on noneconomic subjects during this meeting. Thus, we are satis-
fied from the record that Burtch actually made this vague proposal at the June
15 meeting. Contrary to the Respondent’s argument, however, we do not find
that our reversal of the judge’s credibility resolutions on this point alone has
any effect on our finding, infra, that the Respondent bargained in bad faith
over wages. 7 See, e.g., Mobil Exploration & Production U.S., 295 NLRB 1179 (1989).
of $7.25 per hour. The parties again met on January
15, but neither party submitted any new proposals.
Burtch said that the Union had failed to move when
he presented the Respondent’s final proposals the pre-
vious day. Burtch then asked the Union whether there
was ‘‘any concession we can make’’ on noneconomic
subjects.6 The Union did not seek to identify precisely
those noneconomic concessions, if any, the Respondent
was willing to make.
Thereafter, the Respondent declared an impasse and,
on January 21, it unilaterally implemented the wage
and benefit proposals in its Janaury 14 offer. On Janu-
ary 27, the parties held another negotiating session at
which the Union made some concessions, while Burtch
continued to insist that the parties were at impasse. On
March 4, the Union sent the Respondent a letter re-
questing further bargaining. Burtch replied by letter,
dated March 4, in which he reiterated that the parties
were at impasse and also stated that further meetings
would be futile ‘‘unless the Union’s position has al-
tered dramatically.’’
Nevertheless, the Federal mediator arranged another
meeting for April 30. The Union told the Respondent
that it would agree to a 10-percent wage reduction for
the first year of the contract, but wanted raises of 3
and 4 percent, respectively, during the second and third
years. The Union also proposed development of a prof-
it-sharing plan. Despite the concessions the Union had
made, Burtch insisted on the Respondent’s January 14
wage proposals and claimed that the Union had ‘‘wast-
ed his time’’ during this bargaining session.
On May 17, the Respondent informed the Union and
the unit employees that it was unilaterally changing
these employees’ vacation accrual system to conform
to that provided salaried employees. On May 28, the
Respondent withdrew recognition from the Union
based on a petition signed by 69 employees, the vast
majority of the unit, stating that they no longer desired
union representation. During the next few months, the
Respondent fully implemented the policies contained
in its salaried employees’ personnel manual, instituted
a new grievance procedure, established a profit-sharing
plan and a system of production bonuses, and created
a merit review program.
On August 6, the Union made a written request for
the Respondent’s records concerning the amount and
manner of contributions for the unit employees’ new
pension plan and information about how the Respond-
ent established the plan. The Respondent, as the judge
found, did not fully respond to the Union’s information
request.
It is clear that throughout the negotiations the Re-
spondent was insisting that the Union accept signifi-
cant wage and benefit reductions for the unit employ-
ees. Applying the principles set forth in Reichhold
Chemicals, 288 NLRB 69 (1988), enfd. in relevant part
sub nom. Teamsters Local 515 v. NLRB, 906 F.2d 719
(D.C. Cir. 1990), we will not scrutinize the Respond-
ent’s bargaining proposals to see if they are suffi-
ciently generous in the circumstances here. We will
address, however, the issue of whether the Respondent
was required to provide the Union with substantiation
for the necessity of the economic reductions the Re-
spondent sought.
We stress that during the negotiations in this case
the Union repeatedly asked the Respondent to justify
the severe cuts in wages and benefits that the Respond-
ent was seeking. The Respondent, according to the
credited evidence, frequently only generally responded
that it needed the cuts to remain competitive, and on
some occasions did not respond at all to the Union’s
concerns. On other occasions, however, according to
the credited testimony of Union President Ritz, the Re-
spondent explained to the Union that past wage in-
creases at Lowville had exceeded increases in the cost
of living, and that the existing wage levels were in ex-
cess of the wage rates necessary to attract and retain
competent employees in the Lowville job market. In
this regard, the record establishes that the Respondent
conducted a survey comparing the wage rates of its
employees to those of other employees performing
similar work, and that this information was shown by
the Respondent’s president, Genovese, to the Respond-
ent’s negotiator, Mallette, in support of the Respond-
ent’s negotiating position. Given the data collected by
the Respondent and the evidence that another union
had accepted similar cuts at the Respondent’s sister
plant in Shelby, Ohio, the Respondent may have been
entirely justified in seeking wage and benefit cuts dur-
ing the contract negotiations.
We recognize, however, that this is not the real
question here. Rather, based on the Union’s continuing
request for substantiation and documentation regarding
the Respondent’s economic proposals, it is clear that
the Respondent had an obligation to furnish that infor-
mation in its possession which was relevant to and
supportive of the Respondent’s asserted need for con-
cessions. We emphasize, in this regard, that the Board
has consistently required employers to provide any
wage surveys on which they have relied in the formu-
lation of their bargaining proposals when the Union re-
quests such information.7 The record establishes that
the Respondent conducted surveys comparing Lowville
wage rates to increases in the cost of living, and in-
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In this regard, the Respondent’s argument that the Union never specifically
requested the wage surveys is disingenuous. The Respondent cannot argue that
it had no obligation to provide the surveys because of the failure of a specific
request, when it at the same time had failed to disclose their existence to the
Union.
9 Taft Broadcasting Co., 163 NLRB 475, 478 (1967), petition for review de-
nied sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir.
1968).
10 Quality Engineered Products, 267 NLRB 593, 597 (1983).
11 Engineered Control Systems, 274 NLRB 1308 at fn. 1 (1985).
12 Chester Valley, Inc., 251 NLRB 1455 (1980).
13 Vore Cinema Corp., 254 NLRB 1288, 1292 (1981).
14 See Harowe Servo Controls, 250 NLRB 958, 961 (1980).
15 Member Cracraft dissents from the finding that the Respondent violated
Sec. 8(a)(5) when its chief negotiator told the Union that it had wasted his
time by arranging further negotations. In Member Cracraft’s view this is an
example of the ‘‘bluster and banter of negotations’’ which does not evidence
bad-faith bargaining. Allbritton Communications, 271 NLRB 201, 206 (1984),
enfd. 766 F.2d 812 (3d Cir. 1985), cert. denied 474 U.S. 1081 (1986). See
Sage Development Co., 301 NLRB 1173–1174 (1991); 88 Transit Lines, 300
NLRB 177 (1990).
creases received by employees performing similar
work, and relied on those surveys in formulating eco-
nomic proposals based on its conclusion that Lowville
wages and benefits were too high. Yet the Respondent
never disclosed to the Union that it had such data in
its possession. Further, when the Union requested any
substantiation or documentation for the Respondent’s
economic proposals, the Respondent failed to provide
this information. Although this case does not present
the issue raised in the inability to pay cases, the Su-
preme Court’s observation in NLRB v. Truitt Mfg. Co.,
351 U.S. 149, 152–153 (1956), is applicable:
Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims . . . . If such an argument is important
enough to present in the give and take of bargain-
ing, it is important enough to require some sort of
proof of its accuracy.
Thus, the Respondent has obstructed the bargaining
process by making bargaining demands certain to en-
sure difficult negotiations and then concealing from the
Union information which at least in part constituted
the basis for the Respondent’s proposals.8
Because the Respondent failed to bargain in good
faith, we find that the parties did not reach a valid im-
passe in mid-January as the Respondent claimed.9
Therefore, we adopt the judge’s findings that the Re-
spondent further violated Section 8(a)(5) by making
unilateral changes,10 by withdrawing recognition from
the Union,11 by dealing directly with the unit employ-
ees,12 and by refusing to provide information on pen-
sion plans to the Union.13
Following its bad-faith bargaining on the subject of
wages, the Respondent, as noted, wrote the Union a
letter on March 16 refusing to bargain further unless
the Union ‘‘altered dramatically’’ its bargaining pro-
posals. Here, we have rejected the Respondent’s con-
tention that the parties reached a valid bargaining im-
passe in mid-January. In the absence of a valid im-
passe, the Respondent could not legitimately pre-
condition further negotiations on the Union’s willing-
ness to alter its bargaining stance.14 Accordingly, we
find that the Respondent also has violated Section
8(a)(5) of the Act by its March 16 letter establishing
bargaining conditions. We further conclude that the
Respondent continued to demonstrate bad faith at the
final negotiating session on April 30 when its chief ne-
gotiator, Burtch, complained that the Union ‘‘had
wasted his time’’ by arranging the meeting. Although
it is evident that remarks of this kind could never serve
to assist the parties in reaching agreement, we believe
there is sufficient evidence in this case to warrant a
finding that Burtch’s conduct was specifically designed
to frustrate bargaining and prevent agreement in viola-
tion of Section 8(a)(5). In so concluding, we stress our
findings above that before this meeting the Respondent
had bargained in bad faith on wages and then unlaw-
fully conditioned further negotiations on the Union
making bargaining concessions, and the evidence that
at the April 30 meeting where the Respondent’s chief
negotiator claimed that the Union was wasting his time
the Union, in fact, had made significant wage conces-
sions. Contrary to our dissenting colleague, we do not
find that Burtch’s remarks constituted harmless ‘‘blus-
ter and banter’’ in the context of this case where the
Respondent previously had engaged in bad-faith bar-
gaining during the parties’ contract negotations. For
this reason, the cases that the dissent relies on to sup-
port its position are inapposite.15
2. After withdrawing recognition from the Union,
the Respondent, on June 23, began applying the per-
sonnel policies and procedures that covered non-
bargaining unit employees to the members of the unit
the Union represented. The Respondent’s manual pro-
vided, inter alia, for a severance plan in which ‘‘[a]ny
employee is eligible for a severance allowance if
he/she is involuntarily terminated by the Company, un-
less he/she: . . . 2. Is a member of a bargaining unit.’’
We agree with the General Counsel’s and the
Union’s contentions that the Respondent unlawfully
excluded bargaining unit employees from participating
in its severance plan. In Niagara Wires, 240 NLRB
1326 (1979), the Board found that the maintenance of
an employee benefit plan that restricted coverage to
unrepresented employees violated Section 8(a)(1) be-
cause it conveyed to employees the impression that
they would lose the benefit if they ever chose union
representation. The severance plan provided for in the
Respondent’s policies and procedures manual clearly
conveys that impression. There is no evidence in the
record to suggest that severance benefits were ever dis-
cussed in negotiations with the Union, or that the Re-
spondent considered them a subject for bargaining. Nor
does the record indicate that the severance benefits set
171A.M.F. BOWLING CO.
16 In this regard, we find this case factually distinguishable from our deci-
sions in KEZI, Inc., 300 NLRB 594 (1990); Fabric Warehouse, 294 NLRB
189–192 (1989); Lynn-Edwards Corp., 290 NLRB 202 (1988); A. H. Belo
Corp., 285 NLRB 807, 808–809 (1987); and Handleman Co., 283 NLRB 451,
452 (1987).
17 We find no merit to the Respondent’s contention that, because unit em-
ployees actually received severance benefits, no violation should be found. It
is clear that the Respondent extended those benefits only because it had with-
drawn recognition from the Union, and thus that it considered the employees
in question to be former unit employees. As the Respondent’s withdrawal of
recognition was unlawful, however, this defense must fail. Indeed, by extend-
ing severance benefits to employees on this basis, the Respondent simply un-
derscored the message that benefits were to be had as a result of rejecting
union representation. Nor is the Respondent’s conduct redeemed by the fact
that Mallette may have inadvertently failed to edit the offending language out
of the manual. Such language, even if inaccurate, is nonetheless unlawful. See,
e.g., Lynn-Edwards Corp., supra at 204–205.
18 Under that contract, nonbargaining unit personnel could perform unit
work only to experiment with new equipment or new methods of performing
operations; to train employees; to assist where machinery malfunctions occur;
to manufacture and assemble prototype and experimental models; and to per-
form unit work when there is excessive absenteeism.
19 See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964);
Weltronic Co. v. NLRB, 419 F.2d 1120 (6th Cir. 1969); and Stone & Thomas,
221 NLRB 573 (1975).
forth in the Respondent’s manual codified a historical
practice of excluding unit employees.16 Thus, there is
nothing in the record that might dispel the message
that the loss of severance benefits was the necessary
result of choosing union representation.17
Accordingly, we find that the Respondent has vio-
lated Section 8(a)(1) of the Act by maintaining and
continuing to maintain a severance plan limited to non-
bargaining unit employees.
3. Finally, as part of its noneconomic proposals, the
Respondent sought a provision allowing nonbargaining
unit personnel to perform unit work. The parties’ ex-
pired collective-bargaining agreement, as the judge
noted, permitted the Respondent to assign unit work in
this manner only under five enumerated circumstances
set forth there.18 During the most recent negotiations,
however, the Respondent demanded that nonunit em-
ployees have the ability to perform unit work without
limitation. The evidence shows that the Respondent in-
sisted on this provision throughout the negotiations and
that the Union’s negotiators considered it a major ob-
stacle, aside from wages, to reaching an agreement.
The judge found that by insisting to impasse on this
proposal the Respondent was in effect attempting to
alter the description of the bargaining unit. Although
the judge concluded, citing Standard Register Co., 288
NLRB 1409, 1410 (1988), that the Respondent’s con-
duct in this regard constituted a ‘‘per se’’ violation of
the Act, he did not make a specific finding that this
was an 8(a)(5) violation. Both the General Counsel and
the Union urge the Board to find the violation as al-
leged in the amended complaint.
Contrary to the judge, we do not find that the Re-
spondent was seeking to change the unit scope in vio-
lation of the Act by insisting on retaining the discre-
tion to remove work from the bargaining unit. We note
that, consistent with the Board’s prior certification of
the Union, the expired collective-bargaining agreement
defined the unit as ‘‘all hourly paid plant production
and maintenance employees . . . .’’ It is undisputed
that the Respondent did not seek to change the unit de-
scription during its contract negotiations with the
Union. In the absence of evidence showing that the
Respondent proposed deleting certain job classifica-
tions or job functions from the established bargaining
unit, we find that the Respondent was simply asserting
its right to control the assignment of unit work at its
facility. We therefore conclude that the present case is
distinguishable from Standard Register Co., supra, in
which the Board found that the employer had bar-
gained to impasse over the unit description and not
work jurisdiction alone.
Further, it is well established that the removal of
work from the bargaining unit, whether by contracting
out or by transfer to nonunit employees, imposes on an
employer the statutory duty to afford its employees’
authorized bargaining representative the opportunity to
bargain over the proposed change in operations.19
As the Seventh Circuit Court of Appeals stated in
University of Chicago v. NLRB, 514 F.2d 942, 949
(1975):
[U]nless transfers are specifically prohibited by
the bargaining agreement, an employer is free to
transfer work out of the bargaining unit if: ‘‘(1)
the employer complies with Fibreboard Paper
Products v. N.L.R.B., 379 U.S. 203 . . . by bar-
gaining in good faith to impasse; and (2) the em-
ployer is not motivated by anti-union animus.
Textile Workers v. Darlington Mfg. Co., 380 U.S.
263 [1965].
Thus, we find that the Respondent’s proposal concern-
ing work assignments was a mandatory subject of bar-
gaining which the Respondent, if it had otherwise bar-
gained in good faith, could have lawfully insisted on
to impasse. For this reason, we find that the Respond-
ent did not, as alleged, violate the Act by its insistence
on controlling the assignment of unit work. Accord-
ingly, we shall dismiss this allegation of the complaint.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 4 and renumber the subsequent paragraph ac-
cordingly.
‘‘4. The Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act by
maintaining those portions of the employee manual
that indicate that employees who are members of bar-
gaining units are automatically excluded from the Re-
spondent’s severance benefits plan. ‘‘5. The Respond-
ent has engaged in unfair labor practices in violation
of Section 8(a)(5) of the Act by: (a) failing to provide
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National 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.’’
the Union with wage surveys it conducted to justify
the necessity for the substantial economic reductions
contained in its bargaining proposals; (b) making uni-
lateral changes in its employees’ terms and conditions
of employment; (c) refusing to bargain with the Union
unless there was a dramatic alteration in the Union’s
bargaining proposals; (d) accusing the Union of wast-
ing its time during contract negotiations; (e) withdraw-
ing recognition from the Union; (f) encouraging and
forming employee grievance committees; and (g) fail-
ing to supply the Union with information regarding the
employees’ pension plan.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, A.M.F. Bowling Company, Inc., Lowville,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Cease and desist from
(a) Failing to provide the Union with wage surveys
it conducted to justify the necessity for the substantial
economic reductions contained in its economic bar-
gaining proposals.
(b) Withdrawing recognition from the Union as the
exclusive collective-bargaining representative for em-
ployees in the unit described below.
(c) Refusing to meet and bargain with the Union
until the Union dramatically altered its bargaining pro-
posals.
(d) Accusing the Union of wasting its time during
contract negotiations.
(e) Unilaterally instituting wage reductions for its
employees and changing their pension, health, insur-
ance plans and other benefits.
(f) Encouraging employees to bypass the Union by
forming and assisting employee grievance committees.
(g) Failing, on request, to furnish the Union with
pension plan information regarding the terms and pro-
visions of the plan and contributions made on the unit
employees’ behalf.
(h) Maintaining portions of its employee manual that
indicate that employees who are members of bargain-
ing units are automatically excluded from its severance
benefits plan.
(i) 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) On request, recognize and bargain in good faith
with the Union as the exclusive collective-bargaining
representative of the employees in the unit described
below with respect to rates of pay, wages, hours of
employment, and conditions of employment, and, if an
agreement is reached, embody such understanding in a
written, signed agreement.
All hourly paid plant production and maintenance
employees including janitors at the Respondent’s
plants located at Trinity Avenue, South State
Street and Utica Blvd., all in Lowville, New
York; excluding office and clerical employees,
technicians, guards (firemen-watchmen), foremen
and all other supervisors as defined in the Act.
(b) Restore and place in effect all terms and condi-
tions of employment provided by the contract that ex-
pired on January 8, 1987, which were unilaterally
changed by the Respondent, except in those cases in
which the Union may request that a particular change
not be revoked.
(c) Make whole the unit employees for any loss of
wages or other benefits they may have suffered by the
implementation of its January 14, 1987 contract pro-
posals or by the unilateral changes it made following
its withdrawal of recognition from the Union in ac-
cordance with the remedy section of the judge’s deci-
sion.
(d) Make contributions to any fund established by
the parties’ collective-bargaining agreement with the
Union, which was in existence as of January 8, 1987,
and which would have been paid but for its unlawful
unilateral changes in the manner described in the rem-
edy section of the judge’s decision.
(e) On request, furnish the Union with any informa-
tion, including but not limited to wage surveys, used
by its collective-bargaining representatives to formulate
contract proposals relating to negotiations with the
Union.
(f) On request, furnish the Union with pension plan
information regarding the terms and provisions of the
plan and the contributions made to the plan on the unit
employees’ behalf.
(g) Eliminate from its employee manual any lan-
guage that indicates that employees who are members
of bargaining units are automatically excluded from
participation in its severance benefits plan.
(h) Post at its Lowville, New York facility copies of
the attached notice marked ‘‘Appendix.’’20 Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
173A.M.F. BOWLING CO.
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Notify the Regional Director in writing 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 here.
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, on request, fail to provide United
Steelworkers of America, AFL–CIO, CLC, District 4
with wage surveys we conducted to justify the neces-
sity for the substantial wage and benefit reductions
contained in our economic bargaining proposals.
WE WILL NOT withdraw recognition from the Union
as the exclusive collective-bargaining representative of
employees in the unit described below.
WE WILL NOT refuse to meet and bargain with the
Union until the Union has dramatically altered its bar-
gaining proposals.
WE WILL NOT accuse the Union of wasting our time
during collective-bargaining negotiations.
WE WILL NOT unilaterally institute wage reductions
for our employees or change their pension, health, in-
surance plans, and other benefits.
WE WILL NOT encourage our employees to bypass
the Union by forming and assisting employee griev-
ance committees.
WE WILL NOT, on request, fail to furnish the Union
with pension plan information regarding the terms and
provisions of the plan and contributions made on the
unit employees’ behalf.
WE WILL NOT maintain portions of our employee
manual that indicate that our severance benefits plan
automatically excludes employees who are members of
bargaining units.
WE WILL NOT in any like or related manner, inter-
fere with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain in good
faith with the Union as the exclusive collective-bar-
gaining representative of the employees in the unit de-
scribed below with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment, and, if an understanding is reached,
embody that understanding in a written, signed agree-
ment. The bargaining unit is:
All hourly paid plant production and maintenance
employees including janitors at the our plants lo-
cated at Trinity Avenue, South State Street and
Utica Blvd., all in Lowville, New York; excluding
office and clerical employees, technicians, guards
(firemen-watchmen), foremen and all other super-
visors as defined in the Act.
WE WILL restore and place in effect all terms and
conditions of employment provided by the contract
that expired on January 8, 1987, which we unilaterally
changed, except in such cases in which the Union may
request that a particular change not be revoked.
WE WILL make whole the unit employees for any
loss of wages or other benefits they suffered by the
implementation of our January 14, 1987 contract pro-
posals or by the unilateral changes we made following
our withdrawal of recognition from the Union.
WE WILL make contributions to any fund established
by our collective-bargaining agreement with the Union
which was in existence as of January 8, 1987, and
which would have been paid but for the unlawful uni-
lateral changes we made.
WE WILL, on request, furnish the Union with infor-
mation, including but not limited to wage surveys,
used by our collective-bargaining representatives to
formulate contract proposals relating to negotiations
with the Union.
WE WILL, on request, furnish the Union with pen-
sion plan information regarding the terms and provi-
sions of the plan and the contributions made to the
plan on the unit employees’ behalf.
WE WILL eliminate from our employee manual lan-
guage indicating that employees who are members of
bargaining units are automatically excluded from par-
ticipation in our severance benefits plan.
A.M.F. BOWLING COMPANY, INC.
Doren G. Goldstone, Esq., for the General Counsel.
R. Daniel Bordani, Esq. and Raymond Poscucci, Esq. (Bond,
Schoneck & King), for the Respondent.
James R. LaVaute, Esq. (Blitman & King), for the Charging
Party.
DEClSION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on February 29, March 1–3, June 13–
16, July 26–29, and September 6–8, 1988, in Watertown and
Syracuse, New York. On November 9, 1987, a consolidated
complaint issued based on charges filed by the United Steel-
workers of America, AFL–CIO, CLC, District 4 (the Union),
against A.M.F. Bowling Company (Respondent). The com-
plaint alleged that Respondent violated Section 8(a)(1) and
(5) of the Act. The thrust of the complaint alleges that Re-
spondent engaged in surface bargaining; unilaterally imposed
terms and conditions of employment on the bargaining unit;
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This case was a long and complex case. Counsel for the General Counsel,
for the Union, and for Respondent demonstrated throughout the course of this
trial and in their briefs the very highest quality of legal excellence.
2 The facts of this case are based primarily on the credible testimony of
General Counsel witnesses Daniel Ritz and Carolyn Brown, employees of Re-
spondent and officials of the Union, Richard Corcoran, a union official, and
Rodney Mallette, Respondent’s general manager of the Lowville plant
(Mallette was also called as a witness by Respondent) and documentary evi-
dence. All the above witnesses testified in a sincere and forthright manner dur-
ing both direct and cross-examinaton. Their recollection of the facts was de-
tailed. When confronted with documents or bargaining notes, which put some
of their testimony in question, they candidly admitted their recollection might
not be accurate; in some cases their recollection was refreshed. Such candor
was consistently displayed whether their testimony was helpful to the party
they represented or not.
Respondent’s primary witness was Jack Burtch, its chief negotiator. I do not
find Burtch to be a credible witness. I was particularly unimpressed with his
demeanor. Burtch’s testimony concerning critical issues of this case was often
vague and evasive. At other times his testimony was simply unbelievable, and
at other times his testimony was contradicted by his bargaining notes. Exam-
ples are set forth and described below.
3 G.C. Exhs. 19 and 20.
4 G.C. Exh. 2.
unlawfully withdrew recognition; failed to provide certain in-
formation to the Union; and, dealt directly with employees
in the unit. Additionally, the complaint alleged Respondent
violated Section 8(a)(1) of the Act by precluding employees
in the unit from participating in Respondent’s severance pay
program.
On the entire record, including my observation of the de-
meanor of the witnesses, and on a careful consideration of
the posttrial briefs, I make the following1
FINDINGS OF FACT
Respondent is a Virginia corporation, with an office and
place of business in Lowville, New York. It is engaged in
the manufacture, nonretail sale, and distribution of bowling
lanes and equipment. Respondent annually purchases and re-
ceives at its Lowville, New York facility goods, products,
and materials valued in excess of $50,000 directly from
points outside the State of New York. I conclude Respondent
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
It is admitted, and I conclude that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Prior to the fall of 1986 Respondent was owned by
Minstar. On or about August 24, 1986, Respondent signed a
purchase agreement to purchase the bowling division of
AMF from Minstar. A condition of the purchase agreement
was that Respondent adopt all collective-bargaining agree-
ments then in effect with Minstar, including the collective-
bargaining agreement with the Union, which was to expire
December 8, 1986.
The Union represented a unit of production and mainte-
nance employees in the Lowville plant numbering about 75
employees. The employee compliment was a very stable
compliment of employees. Most of the employees had years
of seniority. Lowville is a very small town in northern New
York, somewhere between Watertown and Syracuse, New
York. It is a somewhat isolated town and new employees
were often relatives of older employees with years of senior-
ity. The Union had represented these employees for about 20
years. During this period, labor relations between Minstar
and prior owners had always been rather ideal. Over the
years, as collective-bargaining agreements were negotiated,
the employees received modest increases in wages and bene-
fits. Grievances were seldom filed. Differences that could
have resulted in grievances were usually settled informally,
without resort to the contractual grievance procedure. For ex-
ample, during the term of the last collective-bargaining
agreement only two grievances were filed by the Union
which were settled at the second step. No grievance went to
arbitration.
In late summer of 1986, after signing the purchase agree-
ment with Minstar, Respondent retained Jack Burtch, a spe-
cialist in labor negotiations for the purpose of handling col-
lective-bargaining negotiations with the Union when their
contract expired on December 8, 1986. On September 24,
1986, the Union sent Respondent a notice of termination of
the collective-bargaining agreement. Respondent closed on
the purchase of the business on November 21, 1986.
On October 1, 1986, Burtch sent a letter to the Union ac-
knowledging the Union’s letter of termination of contract and
offering to meet with the Union on November 10. 2
The first collective-bargaining negotiation took place on
December 3. The Union’s bargaining committee consisted of
Daniel Ritz, the local president, Carolyn Brown, George
Prenette, a representative of the Union’s district office, and
a small committee of bargaining unit employees. Ritz and
Prenette were the chief spokesmen, although the Union noti-
fied Respondent that decisions with respect to the Union’s
bargaining position would have to be resolved by a commit-
tee vote. Respondent’s chief negotiator was Burtch who was
assisted at times by Mallette and other Respondent officials.
At the outset of the session, the Union presented Respond-
ent with a complete set of bargaining proposals.3 There was
very little in the way of substantive language changes pro-
posed by the Union. The Union wanted to discuss a number
of language provisions to pin them down or clarify them: for
example lost time, fire drills, layoff, and increase in work
force, where no substantive changes were sought. The Union
did seek language to amend the prior agreement so that em-
ployees who were volunteer firemen could leave work to
fight sevre fires without being docked pay.4 The Union also
proposed language to permit the union president to observe
the process of employees who were exercising bumping
rights. The Union also proposed to reduce the experience re-
quirement for entry into certain jobs from 30 to 20 days. The
Union also proposed a bulletin board for plant 3 and estab-
lishment of alternate job bids for leadman in the laminating
truckdriving and rim moulding departments. In summary, the
Union proposed no significant language modlifications. The
Union proposed a 2-year agreement which was the same
term as the prior agreement. As to the Union’s economic
proposals, the Union proposed wage increases of 8 percent
for the first and second year. The Union also proposed an
increase from $150 a week in insurance coverage to $170 a
week in the first year of the contract and $180 a year in the
second year. The Union further proposed an increase in life
insurance payments from a lump sum payment of $8000 to
$9000. The Union also proposed an unspecified increase in
dental coverage. The Union also proposed an unspecified in-
crease in pension payments. The Union additionally proposed
the creation of an additional personal holiday. The Union
proposed to exchange an existing floating holiday for a sec-
ond personal holiday. The Union also proposed a new vaca-
175A.M.F. BOWLING CO.
5 Burtch testified the Union did not ask why Respondent was seeking con-
cessions. I find such testimony highly improbable nd adversely reflective on
Burtch’s credibility.
6 Burtch testified that it was the Union who requested an extension. He sub-
sequently testified he didn’t know who requested the extension. Because Re-
spondent was not prepared to engage in collective bargaining on December 3,
I would conclude that it was Respondent that was seeking an extension. I find
Burtch’s testimony on this issue both contradictory and evasive.
tion schedule so that employees would receive additional va-
cation time with fewer years of service. The Union further
proposed to modify the requirement in the contract that em-
ployees use 2 weeks of their vacation time during the
planned shutdown ach year. The Union also proposed a pro-
vision in which employees could save 1 week of vacation
time and be on leave without pay during 1 week of the shut-
down. The Union also proposed that Respondent pay the full
cost of one pair of safety shoes for the term of the 2-year
contract. The old agreement required payment of up to $24.
The Union also proposed that yard employees receive two
pairs of safety shoes. The Union proposed that Respondent
pay 50 percent of the cost of prescription glasses for each
employee. Each employee would be entitled to one pair dur-
ing the term of the contract. The prior contract provided for
the payment of $25 towards a pair of prescription safety
glasses. Respondent required safety glasses in all parts of
Lowville plant. The Union also proposed the payment of
double time for work performed by bargaining unit employ-
ees on Sundays and holidays. The old contract provided for
payment at time-and-one-half. The Union lastly proposed that
two jobs be upgraded.
After the Union submitted its proposals, Burtch, without
submitting any bargaining proposals, told the Union that Re-
spondent was needed to be more competitive, and would re-
quire economic concessions. Ritz replied that Respondent
would have to justify the need for such economic conces-
sions.5 Burtch then stated that the owners had just taken over
the business in November and had not had a chance to look
over the prior contract or review the operation and then did
not know much about it at this time. Burtch then asked for
a 30-day contract extension. The Union agreed.6 The parties
agreed that any agreement reached would be retroactive to
December 8.
I conclude Burtch’s testimony concerning Respondent’s
lack of time to prepare for negotiations by December 3 to
be untruthful. There was no reason that Respondent should
not have been fully prepared to bargain with the Union on
December 3. They had economic data available to them at
least since August 24. They certainly had access to the prior
collective-bargaining agreements. Burtch had been retained
since at least September 1 or thereabouts and had 3 months
to prepare for the December 3 negotiation. To meet with the
Union 5 days before the contract is set to expire and claim
that he was not prepared to bargain is inexcusable and unbe-
lievable. Such contentions by Burtch not only reflects ad-
versely on his credibility, but evidences bad-faith bargaining
by Respondent.
The second bargaining session took place on December
16. Respondent submitted a single language proposal con-
cerning the grievance procedure. The existing agreement de-
fined a grievance as follows:
A grievance is a complaint by an Employee or the
Union against the Employer or vice versa because of an
alleged violation of a specific provision of this Agree-
ment.
Respondent’s proposal struck out the words ‘‘vice versa’’
from the existing provision. On its face, it would appear to
be a proposal favoring the Union by preventing the Respond-
ent from filing a grievance and utilizing the grievance proce-
dure. The parties discussed this proposal and Burtch told the
Union that it was made simply to correct the contract lan-
guage to reflect the actual practice of the parties. However,
on cross-examination Burtch admitted the language change
was really proposed in order to give Respondent access to
the courts for injunction proceedings against the Union in ap-
propriate situations.
The parties then discussed some of the Union’s language
proposals. Respondent agreed that if volunteer firemen were
needed up to 10 employees could leave the plant to fight
fires. Respondent agreed that the Union could have a bulletin
board in plant 3. Additionally, procedures on the negotiation
committee and funeral leave were discussed and confirmed.
Then Respondent made its first economic proposal. The pro-
posal set forth the 10 present job grades with proposed rates
for each grade as a starting rate, after the probationary pe-
riod, after 6 months and after 1 year. The weighted average
for Respondent’s proposal was $6.86 an hour, as compared
with the existing weighted average of $9.04 an hour. Re-
spondent was proposing a 24-percent wage cut. Respondent
also proposed a 14-percent overall reduction in fringe bene-
fits. The proposal did not specify which benefits would be
reduced. Ritz asked Burtch why such extensive wage cuts
were necessary. Burtch replied Respondent needed the cuts
to be competitive. Ritz demanded justification for Respond-
ent’s position. Burtch merely restated his initial position. Ritz
then asked why Respondent was proposing to reduce benefits
and what benefits were being reduced. Burtch did not re-
spond. Ritz then counterproposed that the Union would re-
duce its wage proposal from an 8-percent increase the first
year to a 6-percent increase. Ritz testified he made this pro-
posal to see if Respondent would move on its wage proposal.
When Burtch did not indicate any movement Ritz then asked
Burtch what rates Respondent was interested in. Burtch made
no further response. Ritz pointed out that the Lowville oper-
ation was profitable and asked why all of a sudden Respond-
ent required such large cuts in wages and benefits. In fact
1986 had not been a profitable year for Respondent. The
years prior to 1986 had been generally profitable years.
However, the economic indications for 1987 appeared to
forecast a profitable year. Burtch again stated Respondent
wanted to be competitive with manufacturing operations in
the geographical area. Ritz then asked Burtch if the employ-
ees agreed to accept lower wages would Respondent consider
implementing a profit-sharing plan so that if Respondent had
a good year, the employees could recoup their money. Burtch
did not respond to this proposal and the session ended.
On or about December 23, Frank Genovese, one of Re-
spondent’s owners, told Plant Manager Rodney Mallette to
review the entire Lowville operation and prepare a new grade
job classification and wage structure which were to reflect
Mallette’s views as to actual job classifications and grades
and what rate of pay should be assigned to each job and
grade. Mallette prepared such document by December 31.
The job classification and grade structure prepared by
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mallette was significantly different from the present contrac-
tual grade structure and job classifications. The existing
structure had various job classifications in 10 pay grades.
Mallette’s new structure eliminated some old job classifica-
tions, created various new job classifications and broke down
the unit into 16 pay grades. The weighted average pay rate
of Mallette’s proposal was $6.72 an hour, or a proposed pay
cut of 26 percent.
The third bargaining session took place on January 6, 2
days before the extended contract was to expire. At this late
date Respondent presented its initial language proposals. This
language proposal eliminated or modified virtually every sig-
nificant language provision in the present agreement. Various
economic proposals were also presented.
Respondent proposed that the union-shop provision of the
existing collective-bargaining agreement be removed. The
union-security clause in the existing contract provided that
all employees be members of the Union. Such union-security
provision had been included in all prior agreements.
Respondent proposed that the existing agreement be
amended so that employees spending working time confer-
ring with Respondent concerning grievances would not be
paid. The prior agreement provided employees would be
paid.
Respondent proposed, for purposes of bidding and bump-
ing, that employee selection would be based on ability as de-
termined solely by Respondent. Only when in Respondent’s
judgment, ability was equal, would seniority be considered.
The proposal also provided that Respondent’s judgment
would not be subject to the grievance procedure. The exist-
ing collective-bargaining agreement provided that such selec-
tion process would be made in order of seniority. The exist-
ing agreement also provided that Respondent’s failure to
apply seniority principles would be grievable.
Respondent proposed that new employees would have no
seniority rights and would be considered on probation for 90
days actually worked. The existing agreement provided that
employees would be on probation for the first 30 workdays
of employment.
Respondent proposed that the job grading decisions would
not be grievable. In prior agreements such decisions were
subject to the contractual grievance procedure.
Respondent reiterated its previous proposal on the defini-
tion of a grievance which precluded the Employer from filing
a grievance.
Respondent proposed that the cost or expense of the arbi-
trator, ‘‘reporter’’ and the conference room should be borne
by the losing party. Under the existing agreement the cost or
expense of the arbitrator and the conference room would be
shared equally by the the Employer and the Union. Respond-
ent’s proposal implicitly provided that arbitration would be
transcribed by a court reporter. Respondent also proposed the
elimination of two holidays.
Respondent proposed a new schedule for vacations which
limited the maximum amount of vacation time which could
be accrued to 160 hours and required 20 or more years of
service to arrive at the top level. Under the existing agree-
ment, employees could accrue up to 200 hours of vacation
leave and would arrive at the 120-hour and 160-hour level
sooner than as proposed by Respondent.
Respondent proposed that employees contribute $14 per
month for the pension plan. Under the existing agreement
employees did not pay for pension coverage at the basic
level.
Respondent proposed that employees contribute $22 per
month for single employee medical coverage and $66 per
month for family coverage. Under the existing agreement
employees paid 42 cents per week for single employee cov-
erage and $1.15 per week for family coverage.
Respondent proposed that a precertification plan be imple-
mented for hospitalization admissions. This proposal was
new.
Respondent proposed that the coinsurance reimbursement
rate be dropped from 90 to 80 percent.
Respondent proposed that any premium increases in health
insurance be borne by the employees.
Respondent proposed that the existing 1-year extension of
benefits for disabled individuals be deleted and that the indi-
vidual merely be offered a COBRA extension required by
law. Respondent proposed that the existing dental coverage
be deleted.
Respondent proposed that nonbargaining unit personnel
(e.g., supervisors) could perform work ordinarily performed
by the unit employees. No limitations were proposed. Under
the existing agreement, nonbargaining unit personnel could
perform bargaining unit work only under the five enumerated
circumstances set forth therein. Those conditions were:
1. to experiment with equipment or new methods of
performing the operations;
2. to train employees;
3. to assist where machinery malfunctions occur;
4. to manufacture and assemble prototype and exper-
imental models; and
5. to perform work of an employee where there is
excessive absenteeism and such work is necessary pro-
vided that there are no other employees available to do
the work.
Burtch then commented on Respondent’s proposals. With
respect to Respondent’s proposal to eliminate the union-secu-
rity provisions, Burtch stated the new owners believed the
employees should have the right to decide whether to join a
union. With respect to Respondent’s proposal to eliminate
pay when employees were processing grievances, Burtch
stated that they were not working when processing griev-
ances and should not be paid when not working. During the
prior agreement only two grievances had been filed. Resolu-
tion of these grievances averaged between 20–30 minutes
each. With respect to Respondent’s proposal effectively
eliminating seniority as the basis for bidding or bumping on
jobs, Burtch stated the reason for this proposal was to elimi-
nate a practice where some employees would bid or bump
and then disqualify themselves. Ritz credibly testified that
Respondent never complained to the Union about any prob-
lem in this area. Moreover, the Respondent’s proposal would
not solve this problem. With respect to the second half of
Respondent’s seniority proposal which would prohibit the
Union from grieving Respondent’s selection, Burtch would
not state the reason for this proposal other than to state it
was Respondent’s business. With respect to Respondent’s
proposal to raise the probationary period from 30 to 90
working days, Burtch stated that 30 days was insufficient
time to determine an employee’s worth. With respect to Re-
spondent’s proposal to eliminate the Union’s right to grieve
177A.M.F. BOWLING CO.
Respondent’s grading of jobs Burtch stated that such issue
was Respondent’s prerogative. With respect to Respondent’s
proposal for using a stenographer during arbitrations and
having the losing party pay the total cost of the arbitration,
Burtch gave no reason for this proposal.
Burtch did not comment as to Respondent’s economic pro-
posals. Ritz asked why the employee’s pension contribution
of $14. Burtch did not respond. When Ritz asked Burtch the
reason for the reduction of the economic proposals described
above, Burtch did not respond.
During the course of further negotiation Ritz asked if Re-
spondent’s December 16 wage proposal was still on the
table. Burtch stated it was. This statement was untruthful. As
set forth above, Mallette had already prepared an entirely
new proposal with new job classifications, grades, and a re-
gressive wage structure of 26 percent as against the 24-per-
cent wage cut proposed in Respondent’s December 16 pro-
posal. However, Respondent did not introduce this proposal
until the January 7 negotiation set forth below. Such untruth-
ful conduct further diminishes my impression of Burtch’s
credibility. The parties recessed at this point for lunch.
In the afternoon, the Union presented its response to Re-
spondent’s proposals. Ritz told Burtch Respondent’s proposal
to eliminate union security was unacceptable. Ritz stated the
Union would consider Respondent’s proposal to eliminate no
grievance pay. Ritz stated Respondent’s proposal to eliminate
seniority on bidding and bumping and to eliminate the right
to grieve Respondent’s selection based on ability was unac-
ceptable. Ritz proposed a compromise of 45 days on Re-
spondent’s probationary proposal of 90 working days. Ritz
stated Respondent’s proposal that job grades could not be
grieved was unacceptable. Ritz stated the Union would con-
sider Respondent’s ammendment to the definition of a griev-
ance. Ritz stated the Union would agree to Respondent’s ar-
bitration cost proposal if Respondent dropped its proposal on
union security, seniority on bidding and bumping, and no
grading grievances. Ritz stated the Union would consider ac-
cepting Respondent’s proposed reductions on holidays, vaca-
tions, and insurance if Respondent reconsidered its proposals
on wages. Ritz stated the Union would not agree to nonunit
personnel being allowed to perform unit work. The Union
also agreed to various Respondent language proposals in-
volving no substantive changes.
On January 7 the parties met again. At this time Burtch
handed the Union its new wage proposal prepared by
Mallette. As set forth above this proposal was significantly
different from Respondent’s original proposal of December
16. This proposal had new and different job classifications
and varied from the 10 present job grades to 16 job grades.
Moreover, the wage proposal was regressive, providing for
an overall wage cut of 24 percent as against the 22-percent
wage cut set forth in Respondent’s December 16 proposal.
The Union representatives were taken by surprise at this new
proposal and tried to equate the new job classifications and
grades with the present ones. Burtch assured them it was
really the same wage proposal as the December 16 proposal,
except that the new job classifications were more descriptive.
When cross-examined on this issue Burtch maintained this
position. Burtch’s untruthful statements to the Union and his
untruthful testimony further diminish his credibility. Signifi-
cantly, such drastic and regressive proposal was presented to
the Union a day before the extended collective-bargaining
agreement was due to expire.
During this negotiation Burtch also presented the Union
with a new language proposal. The new proposal was vir-
tually the same proposal as the January 6 proposal except
that a new seniority proposal substituted the phrase ‘‘de-
crease increase, or transfer of employees’’ rather than ‘‘bid
and bump.’’ This phrase substitution did not alter the sub-
stantive intent of Respondent’s original seniority proposal by
which the selection of employees was based on Respondent’s
judgment of ability rather than seniority which was the exist-
ing procedure. The only other modification in Respondent’s
lnguage was that Respondent would modify its proposed pro-
bationary period from 90 to 60 working days.
After Respondent’s proposals were submitted the parties
caucused. A mediator was brought in to attempt to resolve
negotiations. The mediator met with Respondent and then
with the Union. He told the union representatives that Re-
spondent’s insistance on an open shop would be a sticking
point. Ritz complained about Respondent’s proposals relating
to union security, seniority, and nonunit personnel perform-
ing unit work. He stated Respondent had not advanced any
reasons for the elimination of these items and that such pro-
posals were contrary to 20 years of prior collective-bargain-
ing agreements.
The Union and Respondent then met together with the me-
diator. Ritz responded to Respondent’s new language pro-
posal. The Union agreed to accept the Respondent’s 60
working day probationary period, and its definition of a
grievance. Ritz stated the Union would accept Respondent’s
arbitration cost proposal if Respondent would drop its insist-
ence on an open shop, elimination of seniority, and no grad-
ing grievances as to the remaining proposals the Union ad-
hered to its earlier position.
The Union then discussed Respondent’s wage proposal.
Ritz stated that Respondent’s present wage proposal was less
than the December 16 proposal. Burtch denied this insisting
that they were the same. As set forth above, in this regard,
Burtch was untruthful. Ritz stated that the Union would ac-
cept a wage freeze for the first year and a 3-percent increase
for the second year for present employees and Respondent
could apply its present wage offer to new hires. Burtch did
not respond, but rather shifted the discussion to the length
of an agreement proposing a 3-year agreement. The Union
agreed.
The parties caucused and reconvened. At this time Burtch
handed the Union a new and revised job grade chart which
consisted of 10 job grades. The new job classifications were
fitted into these 10 grades. However, there was no wage pro-
posal corresponding to the new grades. Ritz asked Burtch
what wages would correspond to the 10 grades. Burtch stated
the 10-grade system was proposed to satisfy the Union. He
did not respond to Ritz’ question as to the wage rates. Ritz
stated the Union needed the wage rates to properly evaluate
Respondent’s proposal. Mallette, during the trial, admitted
that Respondent’s new 10-grade proposal had been prepared
with corresponding wage rates but Burtch deliberately
photocopied the document covering up the proposed wages
so that he could hand it to the Union without the proposed
wage rates. I find such conduct further diminishes Burtch’s
credibility, and evidences a lack of good-faith bargaining by
Respondent.
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Respondent merely modified its seniority proposal to be consistent with the
new job classifications proposed on January 14.
Burtch then presented a new language proposal. Respond-
ent dropped its proposal that union representatives would not
be paid for time spent resolving grievances. There were some
minor language changes. There were no other substantive
changes from Respondent’s last proposal. During discussions
that followed, Burtch stated that Respondent would drop its
arbitration cost proposal if the Union would accept Respond-
ent’s proposals on no-union-security provision, no seniority,
and nonunit personnel performing unit work.
The Union caucused to consider Respondent’s proposals.
They met again with Respondent. Prenette stated that the
Union would agree to a wage freeze the first year, and leave
the second and third years open. Prenette offered to move on
holidays but stated the employees needed to keep medical
coverage intact. Prenette then discussed Respondent’s lan-
guage proposals. He agreed on behalf of the Union to accept
Respondent’s arbitration cost proposal. He stated that if Re-
spondent would drop its insistence on no-union-security pro-
vision, the Union would accept a wage freeze and move on
other economic benefits. Burtch responded that Respondent
was seeking large wage cuts now and that the parties were
far apart. Prenette, on behalf of the Union, rejected Respond-
ent’s other proposed language change proposals. The session
then ended.
The parties met again on January 8, the date the extended
contract was to expire. At the beginning of this session
Burtch provided the Union with a new wage proposal. The
proposal was the same 10-grade structure as provided by Re-
spondent on January 7 except that it now had a wage struc-
ture which had been previously blanked out by Respondent.
However, the wage structure did not set forth the time peri-
ods such wages were to be in effect. Moreover the weighted
average wage was $6.72 an hour, a regressive wage proposal
when measured against Respondent’s initial December 16
wage proposal of $6.86 an hour. Respondent did not present
a new language proposal, but informed the Union that it
would drop its demand that its selection of employees for job
positions would not be subject to the grievance procedure.
However, it would not drop its demand that job position se-
lection should be determined by Respondent based on its
judgment of ability, rather than on seniority as in all prior
agreements. Burtch also dropped Respondent’s insistence that
job grades could not be grieved.
The Union then discussed the job classifications set forth
in Respondent’s wage proposal. Although the present grade
system was a 10-grade system, many of the job classifica-
tions were new. Ritz stated the Union would agree to Re-
spondent’s proposed benefit plan if Respondent would agree
to a wage freeze for the first year. Ritz told Burtch he felt
he could sell this package to the employees. Burtch replied
that the Union was not addressing Respondent’s proposed
wage cut. Ritz requested Respondent to supply the Union
with substantiation or documentation as to why such a huge
pay cut was necessary. This request was made by Ritz or
Prenette at every meeting that Respondent’s demand for a
wage cut was discussed. However, Respondent never sup-
plied the Union with such information. Thus far in negotia-
tions, Respondent’s only wage proposals had been the De-
cember 16 $6.86 an hour wage proposal, a 24-percent pay
cut and present wage proposal of $6.76 an hour, or regres-
sive pay cut of 26 percent.
Burtch then dropped Respondent’s proposal on employee
contributions to the pension plan. The parties caucused and
returned in the afternoon. At this time Burtch presented the
Union with a new wage, benefit, and language proposal. This
wage proposal was a 2-year proposal which provided for a
$7.10 an hour weighted average. This proposal reduced the
Respondent’s proposed pay cut from the 24-percent cut ini-
tially proposed on December 16, to a 22-percent pay cut. The
proposed economic benefits and language proposals were un-
changed. Thus, as the contract was about to expire Respond-
ent was insisting on a 22-percent wage cut, approximately a
14-percent cut in other economic benefits, including the
elimination of the dental plan, and language proposals elimi-
nating union security, seniority, grieving the grading of jobs,
and providing that nonunit personnel could freely perform
unit work. Burtch told the Union that these proposals rep-
resented Respondent’s ‘‘bottom line.’’ The session ended.
On the evening of January 8 the Union held a ratification
vote. Respondent’s contract proposals were unanimously re-
jected. The employees voted not to strike, but authorized
their negotiation committee to seek a contract extension. The
Union met with Burtch after the vote. Ritz informed Burtch
of the results of the ratification vote and requested an exten-
sion of the contract. Burtch refused to extend the contract.
Burtch and Genovese testified that they met prior to the
January bargaining sessions with the Union, and that Geno-
vese gave him authorization to make significant concessions
in Respondent’s proposed contract language and work rules
if he felt he would be able to get a major economic conces-
sion from the Union. I find such testimony unbelievable
since it is simply contrary to what took place at the bargain-
ing table throughout the entire course of negotiations. Thus,
Respondent never, throughout the entire course of bargain-
ing, significantly moved off its initial language proposals
(union security, seniority, no-grading grievances, and nonunit
personnel performing unit work). Moreover, Respondent
made regressive wage proposals. Further, Respondent refused
to extend the contract although the Union had not authorized
a strike.
The parties met again on January 14. Burtch provided the
Union with a new contract proposal. An examination of this
proposal establishes that no new language proposal was
made.7 Respondent did propose a significant restructuring in
job classifications, placing certain classifications in different
grades. However, such restructuring was proposed solely to
benefit Respondent. It was not in response to any of the
Union’s proposals or positions. Respondent proposed a wage
reduction from its January 8 proposal of $7.10 an hour to
$7.25 an hour.
The parties discussed Respondent’s proposals. They re-
stated positions previously stated at other sessions, but were
unable to reach any agreement. Burtch testified he told the
Union if it would move off its wage freeze, Respndent could
be flexible in other areas. He testified by ‘‘other areas’’ he
meant the central language proposals at issue, i.e., union se-
curity, etc. I do not believe this testimony. No new language
proposals were set forth in Respondent’s written proposals.
If Burtch were really interested in changes in language, he
could have directly proposed such changes. For example, he
179A.M.F. BOWLING CO.
8 See Burtch’s direct testimony. Pp. 1961–1964 and R. Exh. 27, pp. 4, 5.
could have simply stated during negotiations that Respondent
would withdraw its objection to inclusion of a union-security
provision in an agreement if the Union would agree to some
specified economic concession.
Burtch and Prenette then met in private for a period of
time. This meeting did not result in any new proposals or in
any agreement to Respondent’s proposals.
The parties then met again. There was more general dis-
cussion but no new proposals or agreement. The session
ended.
The parties met again on January 15 with the mediator
present. Neither Respondent nor the Union submitted any
new proposals. The discussions that took place at the January
14 meeting were essentially repeated. Burtch told the parties
he had put Respondent’s final proposals on the table on Jan-
uary 14 but the Union was not willing to move. He testified
that at this point he asked the Union ‘‘is there any conces-
sion we can make.’’ For the reasons set forth above, I dis-
credit this testimony. The session ended without any move-
ment.
On January 16, 1987, the Union received a telegram from
Respondent which stated that Respondent’s final offer of
January 14 expired on January 20, 1987. The telegram also
stated that if the Union did not accept Respondent’s January
14 offer by midnight on January 20 Respondent would im-
plement the wages and benefits of that offer.
On January 20, 1987, the Union took another ratification
vote among its members. The members unanimously rejected
Respondent’s January 14 offer.
On January 21, the Union sent Respondent a telegram in-
forming Respondent that there was no impasse between the
parties and that the Union had a counteroffer which it wanted
to present. Additionally, the Union informed Respondent that
any unilateral imposition of terms and conditions would be
violative of the Act.
On January 21, 1987, Respondent unilaterally implemented
the wages and benefits of its January 14, 1987 offer.
On January 27, another negotiation session took place. The
mediator was present. The Union presented a counteroffer to
Respondent’s January 14 proposals. The offer proposed a
Blue Cross/Blue Shield medical plan that would offer sav-
ings over the present plan. The Union proposed giving up
two holidays if Respondent would give up its demand for no-
union security. The Union also proposed that if Respondent
would drop its proposal that employees contribute to insur-
ance policies, the employees would pay any premium in-
creases. The Union further proposed that it would consider
buying the plant. The Union agreed to Respondent’s proposal
for a precertification plan for hospital admission. The Union
agreed to the Respondent’s proposal of obtaining a second
medical opinion. The Union also agreed to Respondent’s pro-
posal for coinsurance and medical insurance. The Union fur-
ther agreed to Respondent’s proposal that dental coverage be
eliminated.
A discussion followed. During the discussion Burtch re-
peatedly made it clear that Respondent was not going to
modify its January 14 proposal. Prenette repeatedly told
Burtch that if the Respondent would modify its demands for
the huge wage cuts proposed by the January 14 offer the
Union would modify its proposal for a wage freeze and ac-
cept some pay cuts. Prenette indicated flexibility on this
issue. In response, Burtch repeatedly told Prenette the Union
would have to accept the Respondent’s January 14 offer and
that the parties were at impasse.8 The session ended at this
point.
Although the Union proposed to give up two holidays if
Respondent would drop its demand for no-union security and
although the Union proposed significant economic flexibility
in accepting pay cuts, Burtch never proposed or discussed
with the Union the possibility that it would drop its demand
for no-union security or the other objectional language provi-
sions if the Union would accept the Respondent’s proposed
pay cut or something substantially close to it. Burtch instead
kept insisting that the Union must accept Respondent’s Janu-
ary 14 offer, and that the parties were at impasse. If Burtch
were really serious about reaching an agreement and if he
really had the latitude to modify Respondent’s language pro-
posals for economic concessions as he testified, he would
have explored the Union’s proposal of language proposals for
pay cuts.
About late January or early February 1987, Respondent’s
owners donated $10,000 to one of the churches in Lowville
to be distributed to Respondent’s unit employees who were
experiencing financial difficulty as the result of Respondent’s
pay cuts resulting from Respondent’s implementation of its
January 14 proposals. Respondent Supervisor Joe Zehr was
one of a three-man distribution committee in charge of the
actual distribution of these funds to Respondent’s employees.
In February, the church sent letter to Respondent’s employ-
ees informing them as to the availability of such funds. As
a result of Respondent’s action a number of Respondent’s
employees received financial aid.
There were no further scheduled bargaining sessions. On
March 4 the Union sent a letter to Respondent requesting an-
other negotiation session.
On March 16 Burtch responded by letter stating that al-
though the Union had modified its proposals in some minor
areas during the January 27 meeting he believed the parties
were at impasse and unless the Union’s position was ‘‘al-
tered drastically’’ further meetings would be futile. Respond-
ent refused to meet with the Union at this time.
The Union thereafter enlisted the aid of the mediator who
was successful in setting up a meeting for April 30.
The final meeting between the parties took place on April
30. Richard Corcoran, the Steelworker’s subdistrict director
acted as the union spokesman. The mediator was also
present. Corcoran told Burtch that the Union would (l) accept
Respondent’s proposal to eliminate seniority as the basis for
bidding on jobs, accept Respondent’s proposal on holiday
cuts, and accept Respondent’s vacation cuts for first year
bargaining unit employees. The Union proposed a new re-
duced prorated schedule for other unit employees. The Union
agreed to accept some of health care cuts, but proposed an
increased deductable and copayment schedule. The Union
also agreed to accept Respondent’s job classification system.
The Union proposed a 3-year agreement leaving to Respond-
ent’s discretion whether it would begin retroactively in De-
cember or commence immediately. Corcoran then stated Re-
spondent’s proposal to eliminate union security would fun-
damentally jeopardize the Union and was unacceptable.
Burtch merely restated that Respondent’s position was based
on philosophical differences. He did not, contrary to his al-
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leged authority, propose to eliminate union security or other
objectional language provisions if the Union would agree to
substantial wage cuts. Corcoran then discussed the Union’s
objection to Respondent’s proposal to permit nonbargaining
unit personnel to perform unit work. Burtch made no re-
sponse. Corcoran then stated the Union would agree to a 10-
percent wage cut for the first year, a 3-percent increase for
the second year, and a 4-percent increase for the third year.
The Union also proposed development of a profit-sharing
plan. Although the Union had proposed a large and signifi-
cant wage cut and agreed to eliminate seniority in connection
with bidding on jobs, Burtch did not offer to modify the Re-
spondent’s other objectional language proposals if the Union
would be more flexible on the wage cut. Instead, he re-
sponded to the Union’s entire package by stating he had
‘‘wasted his time’’ by coming to this meeting. Corcoran re-
plied the Union was flexible and were at least entitled to a
response. The parties caucused. On return Burtch stated the
parties were far apart. Burtch insisted that the Union accept
its January 14 proposals. Burtch then added he might have
to restructure Respondent’s seniority proposals which the
Union had just agreed to. The parties again caucused. When
the parties returned Burtch simply rejected the Union’s entire
proposal stating ‘‘there is nothing for us to say.’’ Burtch ad-
mitted at the trial that Respondent never costed out the
Union’s proposals. The session ended. There have been no
further meetings.
On May 17, 1987, Respondent informed the Union and in-
dividual members that it was unilaterally changing the vaca-
tion accrual system to conform to that of the salaried, non-
bargaining unit employees.
On May 28, 1987, Respondent withdrew recognition from
the Union based on a petition signed by 69 bargaining unit
employees who stated they no longer wished to be rep-
resented by the Union. Respondent telegramed the Union
stating that it was withdrawing recognition and would no
longer bargain.
A short time after recognition had been withdrawn, Re-
spondent fully implemented the policies contained in its sala-
ried employees’ personnel manual. Respondent informed the
bargaining unit members of the new terms and conditions of
employment at a series of small in-plant meetings called by
Respondent. At one of these meetings Respondent instructed
its employees to elect representatives and instituted a new
grievance procedure. Respondent explained to its employees
that it had withdrawn recognition of the Union and would
implement new policies pertaining to life insurance, sick
leave, length of service awards, tuition reimbursement, cash
length of service awards, severance benefits, and that it
would form an in-plant grievance committee.
In addition, Respondent instituted a monthly production
bonus system. Mallette admitted that the bonus plan was
prompted by the owners’ belief that employees should
‘‘share in the good times,’’ and was approved shortly after
recognition was withdrawn. These production bonuses could
be routinely earned with normal production. Respondent fully
predicted prior to implementation that each employee would
have met their production quotas for the months the policy
was implemented. Respondent also unilaterally implemented
a profit-sharing plan that was similar to the Union’s January
proposal. Respondent created contests with cash awards for
such things as absenteeism, safety, production, quality con-
trol, and attitude. A merit review policy was commenced by
Respondent in September 1987.
On August 6, 1987, the Union made a written request of
the Respondent for records concerning the amount and man-
ner of contributions for the new pension plan applied to the
bargaining unit employees and information about how the
plan was established. The Union needed the information to
verify that contributions were being made and that the funds
were going into the plan. The Union had previously made an
oral request during the January 8 negotiation and still had re-
ceived no response. It was not until October 15 that Re-
spondent provided a partial answer. However, the informa-
tion provided by Respondent lacked a copy of the trust in-
strument, a copy of the plan, the plan description, a state-
ment of current accrued benefits, dates and amounts of con-
tributions, and names of those for whom contributions had
been made.
In June 1987 Respondent instituted a grievance or depart-
ment representative committee. Employees were directed to
raise grievance type problems with the committee in order to
resolve the problems. These problems would include pay or
working conditions. The elected representatives met infor-
mally and handled problems such as bidding. Meetings of the
department representative’s committee took place on com-
pany time.
Analysis and Conclusions
The Board in Houston County Electric Cooperative, 285
NLRB 1213 (1987), set forth the standards to be applied in
determining whether a party is engaged in good-faith bar-
gaining within the meaning of Section 8(a)(5) of the Act:
Section 8(a)(5) of the Act establishes a duty ‘‘to
enter into discussion with an open and fair mind, and
a sincere purpose to find a basis of agreement.’’ NLRB
v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir.
1960). As the Supreme Court stated in NLRB v. Insur-
ance Agent’s Union, 361 U.S. 477, 485 (1960):
Collective bargaining, then, is not simply an occa-
sion for purely formal meetings between manage-
ment and labor, while each maintains an attitude of
‘‘take it or leave it’’; it presupposes a desire to reach
ultimate agreement, to enter into a collective bargain-
ing contract.
This obligation, of coure, does not compel either party
to agree to a proposal or to make a concession. NLRB
v. American National Insurance Co., 343 U.S. 395
(1952). Moreover, as the Board stated in Rescar, Inc.,
274 NLRB 1, 2 (1985), ‘‘it is not the Board’s role to
sit in judgment of the substantive terms of bargaining,
but rather to oversee the process to ascertain that the
parties are making a sincere effort to reach agreement.’’
The Board there referred to its earlier decision in Atlan-
tic Hilton & Tower, 271 NLRB 1600, 1603 (1984), in
which seven traditional indicia of bad-faith bargaining
were listed as follows:
Such conduct includes delaying tactics, unreasonable
bargaining demands, unilateral changes in mandatory
subjects of bargaining, efforts to bypass the union,
failure to designate an agent with sufficient bargain-
181A.M.F. BOWLING CO.
ing authority, withdrawal of already agreed-upon
provisions, and arbitrary scheduling of meetings.
The facts of the instant case establish clearly that through-
out the entire course of bargaining, Respondent made lan-
guage and economic proposals designed to frustrate an agree-
ment, made regressive economic proposals, refused to supply
wage surveys and other data on which such economic pro-
posals were allegedly based, although repeatedly requested to
do so by the Union, made unexpected and significant wage
and language proposals without affording the Union suffi-
cient time to evaluate and consider the effect of such propos-
als, surreptitiously offered funds it was withholding from the
Union to the bargaining unit employees in order to under-
mine the Union, and ultimately unilaterally granting to the
bargaining unit employees many benefits the Union was
seeking at the bargaining table. The totality of Respondent’s
conduct establishes conclusively an attempt by the new own-
ers to rid itself of the Union which had been the collective-
bargaining representative of the unit employees for over 20
years.
The Board has held that when an employer makes an en-
tire spectrum of proposals that are so consistently and pre-
dictably unpalatable to a union so that the employer should
know an agreement is impossible, an inference can be drawn
that such proposals were made to frustrate an agreement.
Richhold Chemicals, 288 NLRB 69 (1988). In NLRB v. A-
1 King Size Sandwiches, 732 F.2d 872 (11th Cir. 1984), the
court upheld the Board’s inference of bad faith from the em-
ployer’s insistence on proposals that were ‘‘so unusually
harsh and unreasonable that they were predictably
unworkablen.’’ Similarly, in Prentice-Hall, Inc., 290 NLRB
646 (1988), the employer engaged in surface bargaining by
the totality of its conduct, including proposals that would
have rendered substantial portions of the contract unenforce-
able. Even though the employer’s negotiators appeared regu-
larly at negotiations and the negotiations resulted in agree-
ment on some subjects, the employer’s proposals, including
those removing substantial portions of the contract from re-
course to grievance and arbitration, were put forward in bad
faith, thereby indicating an intent not to reach complete
agreement with the Union.
In the instant case Respondent’s language proposals alone,
which Respondent insisted on throughout the entire course
negotiations, eliminated provisions enjoyed by the Union
since they became the bargaining representative of the unit
employees herein. Such provisions were essential to the
Unions’ role as a bargaining representative. In this connec-
tion Respondent proposed that the union-security provisions
be eliminated, that the bidding and bumping of jobs which
had always been according to seniority be eliminated and
that Respondent would instead make such decisions unilater-
ally, based on its estimation of an employee’s ability, and
that the Union could not grieve such decision. Respondent
also proposed to eliminate disputes relating to job grades
from the grievance procedure. Respondent further, and sig-
nificantly proposed that Respondent could freely assign non-
bargaining unit employees to perform unit work. This pro-
posal alone would emasculate the Union’s representation of
the bargaining unit as it would effectively render the defini-
tion of the bargaining unit meaningless.
The first item of Respondent’s complete set of proposals
on January 6, provided only 2 days before the contract as ex-
tended by the Union was to expire, proposed to eliminate all
forms of union security. The only reason Respondent could
advance for such inflammatory proposal was a philosophical
one. In Atlas Metal Parts Co., 252 NLRB 205, 220 (1980),
enf. denied 660 F.2d 304 (7th Cir. 1981), the Board noted
that the employer’s proposal to eliminate any form of union
security was not based on any concern over the well being
or interests of its employees. The Board reasoned, therefore
that such an inflammatory proposal was evidence that the
employer did not approach the bargaining table with the in-
tent to find common ground on which the parties could re-
solve their differences.
In the instant case, when asked by the union president why
Respondent wanted the union-shop provision removed, Re-
spondent’s chief negotiator, Jack Burtch, only could recite a
philosophical reason by stating that the owners felt it should
be an employee’s right to belong to a union or not. At no
time could Respondent cite any problem or complaint by a
bargaining unit employee, manager or supervisor with the ap-
plication of the union-security clause. In addition, Respond-
ent’s chief negotiator, an experienced management attorney,
at no time suggested any alternative union-security proposal,
such as maintenance of membership or agency shop which
would encompass a bargaining unit member’s right to choose
union affiliation throughout the employment relationship.
The record also clearly establishes that Respondent’s open
shop demand was not bargaining chip that Respondent was
willing to trade off for a gain in another area of disagree-
ment. Burtch testified that Respondent was prepared to offer
the Union a full union-shop proposal if the Union would ac-
cept a wage cut. However, on April 30 after the Union pro-
posed a 10-percent wage cut Respondent never proposed
trading off union security at this point or prior thereto in ne-
gotiations in order to achieve a further wage cut it was seek-
ing. In Magic Chef, Inc., 286 NLRB 380 (1987), the em-
ployer bargained in bad faith in part because it never gave
the Union an indication that check off was available in return
for economic concessions. The administrative law judge rea-
soned, and the Board agreed, that the employer’s desire to
use checkoff as a bargaining tool was disingenuous. ‘‘If, as
it claims, Respondent stood ready to trade checkoff in return
for other concessions, it carefully hid that possibility as it
permitted negotiations to founder.’’
Respondent’s proposals to eliminate seniority on bidding
and bumping and remove job grading from the grievance
procedure were also predictably unpalable to the Union.
Richhold Chemicals, supra. By maintaining exclusive control
over these significant provisions of the proposed contract,
Respondent’s proposals denigrated the representational role
of the Union and made substantial proportions of the pro-
posed contract virtually unenforceable. Prentice-Hall, supra.
In Continental Insurance v. NLRB, 495 F.2d 44 (2d Cir.
1974), the court recognized that in addition to other indicia
of bad-faith, the employer insisted on a contract in which the
Union would be ‘‘virtually surrendering its right to represent
employees in disputes over working conditions.’’ Particularly
apt was the court’s note that a no-strike clause was coupled
with the limited opportunity for the arbitration of disputes.
In the instant case, on January 6, Respondent proposed to
change the bidding and bumping procedure from one where
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
seniority governed to a selection based on ability as solely
determined by Respondent, with the proviso that only where,
in Respondent’s opinion ability was equal, seniority would
govern. Respondent further demanded that its judgment
would not be subject to the grievance procedure. After the
Union objected and wanted to know what was wrong with
the old language, the next day Respondent presented a new
proposal that included ability in the definition of seniority
but again excluded the Respondent’s judgment about ability
from the grievance procedure. Burtch tried to represent to the
Union that Respondent was reinstituting some of the lan-
guage in the old contract and that Respondent’s new proposal
was a modificaiton of its January 6 proposal by restoring the
balance between seniority and ability. However, the January
7 proposal was actually more onerous than the previous pro-
posal, as it did not restrict seniority to just bidding and
bumping.
Although Respondent dropped its demand to exclude se-
niority from the grievance procedure on January 8, it contin-
ued to adhere to its demand for the definition of seniority to
be determined primarily by ability throughout the negotia-
tions including the last negotiation on April 30. The fact that
Respondent included such proposal in its final offer of Janu-
ary 14 and maintained that position through the final meeting
in April 30 is clear evidence of bad faith. Magic Chef, Inc.,
supra.
Respondent ultimately dropped its proposal to eliminate
disputes concerning job grades from the grievance machin-
ery. However, I conclude such concesions were merely a
‘‘cloak’’ of making ‘‘concessions here and there’’ which
‘‘could be the very means by which to conceal a purposeful
strategy to make bargaining futile or fail.’’ NLRB v. Herman
Sausage Co., 275 F.2d 229 (5th Cir. 1960). Such ‘‘shadow
boxing’’ does not meet the employer’s obligation of bargain-
ing in good faith with intent to reach agreement. Herman
Sausage Co.; Houston County Electric, supra.
Throughout the entire course of bargaining Respondent in-
sisted on a proposal which would permit nonbargaining unit
personnel to perform bargaining unit work. There were no
limitations on this proposal. In NLRB v. A-1 King Size Sand-
wiches, supra, the court upheld the Board’s holding that a
similar proposal to have supervisors or other nonunion em-
ployees perform unit work was so unusually harsh and unrea-
sonable that it was an indicium of bad-faith bargaining. Id.
at 732 F.2d at 873. Insisting to impasse on a bargaining pro-
posal that alters the description of the bargaining unit vio-
lates the Act per se. See Standard Register Co., 288 NLRB
1409 (1988). In Standard Register, the employer took the ad-
amant position that it needed flexibility in assigning the work
and equipment and sought to redefine the description of the
bargaining unit. Id. at 1409. The Board held that the pro-
posed clause would give the empIoyer ‘‘unfettered discretion
to redefine the unit at any time by changing the assignment
of work’’ and that such unilateral control was tantamount to
a refusal to include a unit description. Id. at 1410 (citing
Newspaper Printing Corp., 232 NLRB 291 (1977), enfd. 625
F.2d 956 (l0th Cir. 1980), cert. denied 450 U.S. 911 (1981).
Respondent in the instant case insisted on maintaining ex-
clusive control over the size and scope of bargaining unit
work with its broad proposal that any ‘‘non-bargaining unit
personnel (including supervisors) could perform unit work.
Respondent’s chief negotiator, Burtch, an experienced man-
agement attorney, drafted the language. Although he initially
testified that the language was designed to give Respondent
flexibility on the right of supervisors to step in the produc-
tion line in case of absenteeism or trouble on the line, on
cross-examination, he admitted that the language on its face
was broader than supervisors and that some arbitrator
‘‘could look at that and interpret it different [sic] than I
have’’ He finally admitted that he purposefully used the term
‘‘non-bargaining unit personnel’’ because there was a possi-
bility he ‘‘might have missed something.’’
Respondent was aware that such broad language was ob-
jectionable to the Union because the Union stated during its
initial meeting on December 3 that it was concerned about
erosion of unit work and a reduction in the work force. Yet
Respondent never proposed to change the language to state
only ‘‘supervisors’’ and never explained to the Union that
Respondent supposedly intended it to be so limited. Re-
spondent’s claim that the clause was limited to supervisors
is undermined by the fact that Owner Goodwin told Burtch
to go through the contract to make the language more flexi-
ble ‘‘to place employees in different jobs’’ Respondent’s at-
tempts to obtain language broader than the scope suggested
to the Union was plainly disingenuous. I conclude Respond-
ent proposed such clause in conjunction with the other lan-
guage proposals discussed above as part of its overall plan
to denigrate the Union and its representational role.
With respect to the Respondent’s economic proposals, the
evidince established that Respondent purposefully delayed in
making a detailed wage proposal until a day before the con-
tract was to expire; and that Respondent rigidly adhered to
its demands for huge wage cuts and severe reductions in ben-
efits, citing its desire to be competitive with wages and bene-
fits in the area based on various wage and benefit surveys.
Yet, notwithstanding significant flexibility by the Union as to
their wage and benefit proposals, Respondent instead made
counterproposals which were regressive. Moreover, despite
persistent demands by the Union to obtain copies of the sur-
veys Respondent was allegedly basing its economic proposal
on, Respondent repeatedly refused to furnish the Union with
such information. Further, Respondent radically altered the
employee classification and wage structure immediately prior
to the expiration of the extended agreement and then refused
to extend the agreement so that the Union would have rea-
sonable time to study and evaluate Respondent’s proposals.
Respondent, rather than bargaining further, claimed an im-
passe existed, and without affording the Union adequate time
to bargain, unilaterally instituted its January 14 proposals.
The facts establish that although Respondent had several
months to prepare for collective bargaining, it was totally un-
prepared to submit any wage or language proposal on De-
cember 3, the initial bargaining session, although the contract
was to expire on December 8. It was the Union who agreed
to a 1-month extension. On December 16, the date of the
second meeting, Respondent was similarly unprepared to
submit any economic offer that could be incorporated into an
agreement. Respondent only proposed that it wanted to re-
duce wages by 24 percent and benefits by 12 percent. There
was no specific wage structure for the then present job clas-
sifications nor what benefits would be cut and by how much.
According to Burtch, Respondent did not even begin to pre-
pare figures and proposed job classifications until after the
December 16 meeting. Then, although the parties met again
183A.M.F. BOWLING CO.
on January 6, 2 days before the extended agreement was set
to expire, Respondent still had not submitted a legitimate
wage offer. It was not until January 7, a day before the ex-
tended agreement was set to expire, that Respondent submit-
ted its initial wage offer and job classification structure, con-
taining 16 job classifications. During the course of this meet-
ing Respondent then submitted what was supposed to be a
new wage offer compressed into a new 10-job classification
structure. The only problem was that Respondent deliberately
withheld from the Union the proposed wages from the writ-
ten proposal submitted to the Union although its own copy
contained such proposed wages. Thus, on January 8, the date
the extended contract was to expire the Union did not have
a wage offer to consider. On the morning of January 8, Re-
spondent first submitted its proposed wages that cor-
responded to its job classification structure submitted to the
Union on January 7. And, when the Union asked that the
contract be extended, Respondent refused. I find Respond-
ent’s delay in submitting its wage proposals deliberate, and
part of its overall scheme to frustrate bargaining and to rid
itself of the Union. I further find such tactic to be evidence
of bad faith. The Board has held that delaying tactics are evi-
dence of bad-faith table bargaining. Atlantic Hilton & Tower,
271 NLRB 1600 (1984); Professional Eye Care, 289 NLRB
1376 (1988).
The evidence further establishes that throughout the entire
course of negotiations Respondent insisted on wage cuts of
between 22 to 26 percent for the stated reason that based on
wage surveys which they conducted, they were convinced
that such substantial cuts were necessary for Respondent to
be competitive in the industry. The Union repeatedly chal-
lenged Respondent’s contention and requested Respondent
furnish them with copies, or access to such surveys. Re-
spondent repeatedly refused to do so. While an employer can
use its economic strength to seek legitimate business goals,
its failure to defend them or explain their basis suggests that
the employer’s intention is punitive, rather than economic.
Hudson Chemical Co., 258 NLRB 152, 155 (1981).
The Board has long held that a failure to provide eco-
nomic justification for a regressive bargaining position is an
indicia of bad faith. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956); Metlox Mfg. Co., 153 NLRB 1388, 1394 (1965).
Pertec Computer, 284 NLRB 810 (1987).
In Coast Engraving Co., 282 NLRB 1236 (1987), the
Board rejected an employer’s defense of hard bargaining, in
part because the employer proposed substantial economic de-
creases in the terms and conditions of employment without
offering specific business justificationn. See also Pertec
Computer, above.
I find that Respondent’s refusal to supply to the Union the
wage surveys it allegedly used to justify its severe wage re-
duction proposals is evidence of Respondent’s bad-faith bar-
gaining.
The evidence also establishes that Respondent after ini-
tially proposing an overall wage cut of 24 percent on Decem-
ber 16, proposed a regressive wage cut of 26 percent on Jan-
uary 7, the day before the extended contract was to expire.
Moreover, such regressive proposal was made at at time
when the Union was being flexible. The Union had reduced
its initial wage demand from an 8-percent increase to a 6-
percent increase to a wage freeze on January 7. Thus while
the Union was reducing its wage demands, Respondent was
increasing its demands for a wage cut. I find such regressive
proposal, and particularly the timing of such proposal to evi-
dence bad-faith bargaining by Respondent. See Coast
Enraving, supra; Metal Parts Co., 252 NLRB 205 (1980).
The parties met again on January 8, the date of the ex-
tended contract expiration. At this time Respondent presented
to the Union the wage rates to its new 10-job classification
proposal submitted to the Union on January 7, with such
wages deliberately withheld. When the Union requested a
contract extension so that it could evaluate Respondent’s pro-
posal and make a counterproposal, Respondent refused. The
parties next met on January 14. At this time Respondent sub-
mitted a different language and economic proposal. On Janu-
ary 16, without giving the Union additional time to evaluate
Respondent’s proposal and formulate counterproposals, Re-
spondent notified the Union by telegram that if the Union did
not accept Respondent’s final proposal in full by January 20
it would implement its January 14 proposals. It should be
noted that throughout the negotiations, the Union had shown
flexibility and movement. It had agreed to a wage freeze and
indicated it would consider wage cuts if Respondent would
provide the Union with its wage surveys or other information
Respondent claimed supported its alleged need for such pro-
posed drastic economic cuts. The Union had also agreed to
a number of additional language proposals they had origi-
nally opposed. On January 20, Respondent implemented its
January 14 proposals. The Board has held that a party is en-
titled to a reasonable time to evaluate and respond to the
other parties proposals. Milwaukee Terminal Services, 282
NLRB 637 (1987). I conclude Respondent failed to provide
the Union sufficient time to evaluate its January 8 and 14
proposals and that such failure is evidence of bad-faith bar-
gaining.
I further find Respondent’s telegram on January 16 declar-
ing an impasse and its implementation of its January 14 pro-
posal to be further evidence of Respondent’s bad-faith bar-
gaining. Respondent was not prepared to intelligently bargain
with the Union before January 6. It was not until January 7
that it submitted its first comprehensive wage proposal. Yet
1 week later, and notwithstanding the Union’s flexibility, de-
scribed above, Respondent declared an impasse.
The Board in Stephenson-Yost Steel, 294 NLRB 395
(1989), found that the employer’s declaration of impasse and
implementation of its final offer after only two negotiations,
10 days apart was evidence of its true bargaining objective
of declaring an impasse for the purpose of implementing its
own terms, rather than reach an agreement with the Union.
In Stephenson-Yost Steel, as in the instant case, the union had
demonstrated flexibility by agreement on some proposals,
movement on other proposals and statements that they were
flexible. In Stephenson-Yost Steel, the Board stated that ‘‘Re-
spondent returned to the bargaining table after the break and,
without further bargaining, presented a written document
containing the terms of its ‘final offer’ . . . an offer which
it had every reason to believe, in light of the Union’s bar-
gaining position until then, would be rejected by the unit em-
ployees.’’ See also in this regard Hotel Roanoke, 293 NLRB
182 (1989).
I find, as the Board found in Stephenson-Yost Steel, that
Respondent’s January 16 declaration of impasse and imple-
mentation of its January 14 offer is evidence of Respondent’s
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 G.C. Exh. 9.
bad-faith bargaining and part of its plan to rid itself of the
Union.
Respondent’s entire course of conduct during the final
April 30 bargaining session evidenced bad-faith table bar-
gaining. Initially, Burtch was extremely reluctant to agree to
this meeting. He had to travel from his office in Virginia to
Watertown, New York. However, when the meeting took
place, the Union’s chief negotiator, Corcoran, told Respond-
ent the Union was prepared to be ‘‘flexible’’ and ‘‘malle-
able’’ and as proof of this position, the Union agreed to Re-
spondent’s proposals on seniority, holidays, vacations, health
care deductibles and copayments, and job reclassifications. In
addition the Union proposed to accept a 10-percent wage cut.
Notwithstanding such major concessions Burtch flipantly
stated he had ‘‘wasted his time’’ coming to Watertown, and
demanded nothing less than full capitulation to Respondent’s
January 14 proposals. The Board has held that statements
which disparage the bargaining process support an inference
of bad-faith bargaining. White-Evans Service Co., 285 NLRB
81, 86 (1989). In that case Respondent’s negotiator stated
that further negotiations were a ‘‘waste of time.’’ I conclude
Burtch’s statement in the face of substantial union conces-
sions and its stated position to be ‘‘flexible’’ and ‘‘malle-
able’’ establish that Respondent had no real intention of bar-
gaining with the Union on April 30, rather it was insisting
on total capitulation. Thus I find Respondent’s entire course
of conduct during the April 30 session evidenced bad-faith
bargaining.
The facts of this case establish that sometime in late Janu-
ary or early February, after Respondent implemented its Jan-
uary 14 proposals, Repondent set up a $10,000 fund through
a local Lowville church for the purpose of assisting its em-
ployees who had experienced financial difficulties as a result
of those wage and economic cuts. Further, sometime in June
through September, following its withdrawal of recognition,
Respondent made various unilateral changes which provided
substantial economic benefits, which had been sought by the
Union at the bargaining table. In this respect, Respondent
sharply increased its employees’ wages by providing a
monthly production bonus which employees could easily
earn with routine production. Respondent also provided life
insurance, a 40(k) plan, sick leave, severance pay, pension
plan, safety glasses and shoes, and other benefits described
above.
I find that Respondent, by providing such benefits directly
to employees at a time when it took the position with the
Union, during bargaining, that substantial cuts were nec-
essary to be competitive took inconsistent actions which evi-
denced bad-faith table bargaining. Thus, Respondent’s ac-
tions away from the bargaining table establish that its bar-
gaining position, at the bargaining table, that severe eco-
nomic cuts were necessary in order to be competitive was
untruthful, and such position was taken only to avoid reach-
ing an agreement with the Union. The benefits provided di-
rectly to employees could have been provided at the bargain-
ing table. The Board has held that such conduct away from
the bargaining table can be analyzed in order to shed light
on the employer’s true motives at the bargaining table.
Hedaya Bros., Inc., 277 NLRB 942 (1985).
Based on Respondent’s proposals, and its actions and con-
duct at the bargaining table alone, I conclude Respondent
bargained in bad faith with no intention of reaching an agree-
ment with the Union. This conclusion is strongly reinforced
by Respondent’s conduct away from the bargaining table de-
scribed above. In view of Respondent’s bad-faith bargaining
I find that no impasse can be reached. Oak Rubber Co., 277
NLRB 1323 (1985).
However, even if it were ultimately determined that Re-
spondent had not bargained in bad faith I would still find no
impasse had been reached. The Board has defined an im-
passe as follows:
A genuine impasse in negotiations exist when, de-
spite the parties’ best efforts to achieve an agreement,
neither party is willing to move from its position. Until
the collective bargaining process has been exhausted,
no impasse can occur.
Oak Rubber Co., supra at 1324 (citations omitted). In Taft
Broadcasting Co., 163 NLRB 475 (1967), enfd. 395 F.2d
622 (D.C. Cir. 1968), the Board stated that the bargaining
history, good faith of the parties in negotiations, importance
of the issues separating the parties, and contemporaneous un-
derstanding of the parties as to the state of negotiations are
all relevant factors to be considered in deciding whether an
impasse is reached. In addition, the burden of proof to show
an impasse is on the party claiming the impasse. Baytown
Sun, 255 NLRB 154, 157 (1981).
In the instant case, the record clearly shows impasse was
never reached between the parties, and at no time was collec-
tive bargaining sufficiently exhausted.
The Union at all negotiations indicated it’s willingness to
be flexible. This was stated by the union negotiators through-
out all negotiations and evidenced by their actions. With re-
spect to wages alone the Union moved from an initial wage
demand of an 8-percent increase the first year to a 6-percent
increase to a wage freeze and ultimately on April 30, to a
10-percent wage cut and indicated its continued position to
be flexible even at this time. During the same period Re-
spondent proposed a 24-percent wage cut, then a regressive
26-percent cut and thereafter modified its demand for a huge
cut only infinitesimally. Rather the evidence establishes that
Respondent was rushing to declare impasse, orally stating the
parties were at impasse on January 8, only 2 days after it
made its first complete written proposal.
I find Respondent’s declaration of impasse on January 15
a week following its first written proposal and in view of the
Union’s continued flexibility to be premature. Stephenson-
Yost, and Hotel Roanoke, supra.
The evidence established that on May 28, following re-
ceipt of an employee petition signed by a majority of em-
ployees Respondent withdrew recognition from the Union. In
view of Respondent’s bad-faith bargaining, described above,
which I find to be violative of Section 8(a)(5) I find Re-
spondent’s withdrawal of recognition similarly unlawful and
violative of Section 8(a)(5). Engineering Control Systems;
Prentice-Hall, supra.
Following the withdrawal of recognition Respondent there-
after made various unilateral changes affecting the bargaining
unit employees. These changes implemented a series of bene-
fits enjoyed by Respndent’s salaried personnel and described
in Respondent’s salaried personnel manual9 which were not
185A.M.F. BOWLING CO.
10 In ordering the Respondent to make whole the employees for losses suf-
fered by reason of its implementing new pension, health, and insurance plans,
I note that the record is unclear whether the new plans were substitutes for
preexisting benefit plans and whether any losses were incurred by this conduct.
I shall order that the employees be made whole for such losses, if any, they
may have incurred, and that the Respondent make the contributions to benefit
trust funds, if any, which would have been made but for the Respondent’s uni-
lateral institution of pension, health, and insurance plans. Because the provi-
sions of employee benefit fund agreements are variable and complex, the
Board does not provide at the adjudicatory state of a proceeding for the addi-
tion of interest at a fixed rate on unlawfully withheld payments. It leaves to
the compliance state the questions of whether the Respondent must pay any
additional amounts into benefit funds in order to satisfy our ‘‘make whole’’
remedy. These additional amounts may be determined, depending on the cir-
cumstances of each case, by reference to provisions in the documents govern-
ing the funds at issue and, where there are no governing provisions, to evi-
dence of any loss directly attributable to the unlawful withholding action,
which might include the loss of return on investment of the portion of funds
withheld, additional administrative costs, etc., but not collateral losses.
Merryweather Optical Co., 240 NLRB 1213 (1979). See Manhattan Eye, Ear
& Throat Hospital, 280 NLRB 113 fn. 8 (1986).
previously is a violation of Section 8(a)(5). Engineering Con-
trol Systems, supra.
The evidence established that Respondent established a
grievance or a department representative committee among
the employees in the bargaining unit. The committee was de-
signed to deal with all problems arising in the plant that
would have normally been subject to the Union’s grievance-
arbitration procedures. Respondent’s establishment of these
department committees and its bargaining with the commit-
tees over terms and conditions of employment constitutes di-
rect dealing in violation of Section 8(a)(5). Mooresville IGA
Food Liner, 284 NLRB 1055 (1987); Chester Valley, Inc.,
251 NLRB 1455 (1980).
The evidence further established that on Auust 6, 1987,
the Union made a written request of Respondent for records
which would show the terms of Respondent’s pension plan
being applied to bargaining unit employees, the employees
covered by the plan and the amounts contributed on behalf
of each employee. Respondent replied in part to the Union’s
request. However Respondent failed to provide the Union
with a copy of the trust agreement, a copy of the plan, a
statement of the current accrued benefits, the dates and the
amount of contributions made on behalf of each employee,
I find Respondent further violated Section 8(a)(5) by its fail-
ure to supply the Union with such information. Harowe
Servo Controls, 250 NLRB 958 (1980); Vore Cinema Corp.,
254 NLRB 188 (1981).
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 within the meaning
of Section 2(5) of the Act.
3. The Union is the exclusive collective-bargaining rep-
resentative of the following unit of Respondent’s employees:
All hourly paid plant production and maintenance em-
ployees including janitors at Respondent’s plants lo-
cated at Trinity Avenue, South State Street and Utica
Blvd., all in Lowville, excluding office and clerical em-
ployees, technicians, guards (firemen-watchmen), fore-
men and all other supervisors as defined in the Act.
4. Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a)(1) and (5) of the Act by (a) engaging
in bad-faith table bargaining with the Union, (b) the with-
drawal of recognition on May 28, 1987, (c) by unilaterally
changing the terms and conditions of employment of the em-
ployees represented by the Union in the unit described
above, (d) by encouraging and forming employee grievance
committees, and (e) by failing to supply the Union with in-
formation supporting Respondent’s economic position con-
cerning its bargaining demands and with pension plan infor-
mation applicable to employees in the unit described above.
5. The unfair labor practices of Respondent as described
above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices, I shall recommend it be ordered to cease and
desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act.
Respondent shall be required to resume recognition of the
Union in the unit described above. Respondent shall be re-
quired to bargain with the Union in good faith as the exclu-
sive representative of the unit of employees described above
concerning terms and conditions of employment, and if an
agreement is reached embody such understanding in a signed
agreement. Respondent shall be required to restore the terms
and conditions of employment which were in effect under the
collective-bargaining agreement with the Union which ex-
pired on January 8, 1987, and make whole the employees for
any loss of wages or othr benefits suffered by Respondent’s
implementation of its January 14, 1987 proposals or any
changes therein in accordance with the formula approved in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
set forth in Florida Steel Corp., 231 NLRB 651 (1977), and
make contributions to any fund established by the parties’
collective-bargaining agreement in existence as of January 8,
1987, to which Respondent would have made but for its uni-
lateral actions described above,10 Respondent shall be re-
quired to cease dealing with any employee grievance com-
mittee and deal with the Union exclusively pursuant to the
terms of the grievance and arbitration provisions of the Janu-
ary 8, 1987 agreement. Respondent shall furnish the Union,
on request, with any information, wage surveys, etc., it uses
to formulate collective-bargaining proposals in connection
with any collective-bargaining negotiations engaged in with
the Union and to furnish, on request, any pension plan infor-
mation regarding the terms and provisions of the plan and
the contributions made by Respondent on behalf of each unit
employee.
[Recommended Order omitted from publication.]