Bozzuto'S, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1985

277 N.L.R.B. 977 (N.L.R.B. 1985)

BOZZUTO'S, INC.
Bozzuto 's, Inc . and Teamsters Local Union 677, a/w
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America.
Case 39-CA-1517
6 December 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 12 March 1984 Administrative Law Judge
George F. Mclnerny issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting, briefs,1 and both parties
filed answering briefs.
The National Labor Relations Board has delegat•'
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 as modified and to adopt the recom-
mended Order as modified.
i The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
a The judge found the following conduct of the Respondent violated
Sec 8(a)(1) of the Act. telling three employees that they were on a com-
pany official's "shit list" for not attending a meeting to discuss one of the
Respondent's bargaining proposals, telling employees on 29 January 1983
they would be out of a job if they went on strike; massing hundreds of
job applicants in sight of the employees shortly before a strike; videotap-
ing pickets, and making numerous statements to employees disparaging
the Union and promising to seek the return of pension fund contributions.
We make the following dispositions on these findings.
By telling employees they were on a manager's "shit list," the Re-
spondent threatened reprisal for failing to attend a voluntary meeting to
discuss contract negotiations. A threat of reprisal for not attending a vol-
untary meeting concerning contract proposals is coercive within the
meaning of Sec 8(a)(1)
The Respondent's statement that employees would be out of a job if
they went on strike threatened potential unfair labor practice strikers
with loss of employment. An employer may not permanently replace, or
threaten permanent replacement of, unfair labor practice strikers.
Having found the Respondent's statement that employees (who are
unfair labor practice strikers) would be out of a job if they struck violat-
ed Sec 8(a)(1), we find it unnecessary to pass on whether the massing of
applicants in view of employees constituted coercion.
We reverse the judge's conclusion that the Respondent's videotaping
pickets violated Sec 8(a)(1). Strikes in the recent past by the Union in-
volved violence directed at the Respondent's property and working em-
ployees In this circumstance, the Respondent had reason to anticipate
picket line problems and, accordingly, had a legitimate reason for taping
pickets
We conclude in the circumstances of this case that the other remarks
the judge found violated Sec 8(a)(1) were statements of opinion and they
were noncoercive in nature Accordingly, the statements do not singly or
collectively constitute unfair labor practices
977
The Respondent and the Union were parties to a
collective-bargaining agreement that expired 31
January 1983. The parties began bargaining on a
new contract in December 1982. The Respondent
initially proposed, among other things, changing
the recognition clause to eliminate employees
working less than 32 hours a week. The Respond-
ent's final offer still included changing the recogni-
tion clause. When it presented the final proposal on
25 January 1983, the Company told the Union that
they were at an impasse and that after the contract
expired any employee who wanted to work would
do so under these terms or not at all. On 1 Febru-
ary 1983 the Union went on strike.
Unit scope is not a mandatory bargaining sub-
ject, and consequently a party may riot insist to im-
passe on alteration of the unit. Douds v. Longshore-
men, 241 F.2d 278 (2d Cir. 1957). Although the
Union initially discussed the recognition clause, it
subsequently made clear that it would not change
the unit and would not recommend to its members
a package containing such a change. The Respond-
ent could not insist on acceptance of the proposed
change in the bargaining unit's scope as a condition
for a new collective-bargaining agreement after the
Union's refusal to bargain about the nonmandatory
subject. Laredo Packing Co., 254 NLRB 1, 19
(1981).4 Thus, the Respondent's final offer includ-
ing the changed recognition clause violated Section
8(a)(5).5 One of the reasons the employees went on
strike was the Respondent's insistence to impasse
on the inclusion of this nonmandatory subject. Ac-
cordingly, the ensuing strike was an unfair labor
practice strike.
REMEDY
Having found that the Respondent has engaged
in and is engaging in certain unfair labor practices,
we shall order that it cease and desist therefrom
and take certain affirmative action designed to ef-
fectuate the policies of the Act.
Specifically, we shall order that, on request, the
Respondent meet and bargain collectively with the
Union with respect to wages, hours, and other
terms and conditions of employment. Although we
customarily direct an employer to restore the status
4 The Respondent argues that in Good GMC, Inc, 267 NLRB 583
(1983), the Board found an employer may include nonmandatory subjects
as part of a package proposal and bargain to impasse over that package
In Good GMC, however, the Board found the parties had not exhausted
their bargaining efforts and had not reached impasse In the present case,
the Respondent claimed impasse had been reached, and its final offer in-
cluded a change in a nonmandatory subject the Union earlier had indicat-
ed it never would change Accordingly, we conclude that Good GMC is
not controlling.
5 We find it unnecessary to pass on the judge's findings that the Re-
spondent by making totally unacceptable proposals violated Sec. 8(a)(5)
and that the totality of the Respondent's conduct violated Sec 8(a)(5)
277 NLRB No. 100
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quo when it has taken unilateral action in bypassing
the collective-bargaining agent to the detriment of
the employees, here it is not clear whether the Re-
spondent's unilateral changes have been to the det-
riment of the employees. We shall order restoration
conditioned on the Union's request. Kura-Vent
Corp., 257 NLRB 430, 433 (1981).
If the Union elects to have previous conditions
restored, calculations of the sums and payments
necessary to make employees whole, with interest,
shall be computed in accordance with normal
Board policy. See Ogle Protection Service, 183
NLRB 682 (1970); Florida Steel Corp., 231 NLRB
651 (1977).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3.
"3. By threatening its employees, the Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act."
2. Insert the following as Conclusions of Law 4
and 5 and renumber the subsequent paragraph.
"4. By insisting to impasse on a change in the
bargaining unit's scope as a condition for a new
collective-bargaining agreement and instituting hot
lunch and hotline programs without notice to the
Union, the Respondent has engaged in an unfair
labor practice within the meaning of Section
8(a)(5) and (1) of the Act.
"5. By unilaterally imposing on its employees
wages and other conditions of employment, the
Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the
Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Bozzuto's, Inc., Chesh-
ire, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Team-
sters Local Union 677, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America by insisting to impasse on a
change in the bargaining unit's scope as a condition
for a new collective-bargaining agreement, and in-
stituting hot lunch and hotline programs without
notice to the Union.
(b) Unilaterally imposing on its employees wages
and other conditions of employment.
(c) Threatening its employees with disciplinary
action if they did not attend certain meetings.
(d) Threatening its employees with replacement.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, meet and confer with the Union
at reasonable times and places with respect to
wages, hours, and other terms and conditions of
employment.
(b) On the Union's request, rescind any or all
unilateral changes made on or after 1 February
1983, and make its employees whole, with interest,
as set forth in the remedy section of this Decision
and Order.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze any
amounts due under the terms of this Order.
(d) Post at its Cheshire, Connecticut location
copies of the attached notice marked "Appendix."s
Copies of the notice, on forms provided by the of-
ficer in charge for Subregion 39, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the officer in charge in writing within
20 days from the date of this Order what steps the
Respondent has taken to comply.
s If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain with
Teamsters Local Union 677, a/w International
BOZZUTO'S, INC.
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America by insisting to im-
passe on a change in the bargaining unit's scope as
a condition for a new collective-bargaining agree-
ment.
WE WILL NOT unilaterally impose on you wages
and other conditions of employment.
WE WILL NOT threaten you with disciplinary
action if you do not attend certain meetings.
WE WILL NOT threaten you with replacement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, meet and confer with the
Union at reasonable times and places with respect
to wages, hours, and other terms and conditions of
employment.
WE WILL, on the Union's request, rescind any or
all unilateral changes made on or after 1 February
1983, and make you whole for any losses you suf-
fered, plus interest.
BOZZUTO'S, INC.
Mary Davidson, Esq., for the General Counsel.
Anthony J. Fazzone, Esq. (Fazzone, Muzzo & Bailee, P.C),
of Cheshire, Connecticut, for the Respondent.
Norman Zolot, Esq., of Hamden, Connecticut, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge.
Based on a charge filed on January 27, 1983, by Team-
sters Local Union 677, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union), which charge was amended on
March 10, 1983, the officer in charge of Subregion 39 of
the National Labor Relations Board issued a complaint
on March 16, 1983, alleging that Bozzuto's, Inc. (the Re-
spondent or the Company) had committed and was con-
tinuing to commit unfair labor practices in violation of
the provisions of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, 29 U.S.C. § 151 et seq. The
Respondent subsequently filed an answer in which it
denied the commission of any unfair labor practices. The
complaint was amended and further amended on March
16 and July 7, 1983. The Respondent has denied the
commission of additional unfair labor practices alleged in
these amendments.
Pursuant to notice contained in the amended com-
plaints, a hearing was held before me at Hartford, Con-
necticut, on July 11 through 15 and on August 8, 1983,
at which all parties were represented by counsel and had
the opportunity to present testimony and documentary
evidence, to examine and cross-examine witnesses, and to
argue orally. After the hearing closed, the General
979
Counsel and the Respondent submitted briefs, which
have been carefully considered.
Based on the entire record, including specifically my
observations of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, Bozzuto's, Inc., is a Connecticut cor-
poration having its offices and principal place of business
in Cheshire, Connecticut, where it is engaged in the
wholesale and distribution of groceries and related prod-
ucts. In the 12-month period ending February 28, 1983,
the Respondent, in the course and conduct of its business
operations, purchased and received at its Cheshire facili-
ty goods, products, and materials valued in excess of
$50,000 directly from points outside the State of Con-
necticut. The complaint alleges, the answer admits, and I
find that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company and the Union have been dealing with
each other concerning the Company's employees since
1963. The last collective-bargaining agreement ran from
1980 to January 31, 1983. In 1976, as the result of a
Board-conducted election, a group of maintenance me-
chanics was added to the bargaining unit of drivers and
warehousemen. On the Union side, Perley Rossignol has
been the Union's president and business representative
since 1969 and George Lamontagne has been recording
secretary and the business representative with responsi-
bility for servicing Bozzuto's employees in the bargain-
ing unit since 1977. For the Company, negotiations had
been handled up to 1982 by its president and chairman
Adam Bozzuto. For the negotiations which were to
commence late in 1982 Adam's son, Michael Bozzuto,
was given the responsibility of principal spokesman,
aided by Marty Carangelo, director of warehousing and
transportation.
The events which make up the factual material of this
case occurred in the period of December 1982 through
February 1983.
B. The Negotiations
The first negotiation session was held on December 6,
1982, at which time George Lamontagne presented the
Company's negotiators Michael Bozzuto and Marty Car-
angelo with a set of proposals for the new contract.
These included a revision of the recognition clause to ex-
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clude persons who worked less than 20 hours a week;1
additional vacation time and holidays; increases in wages,
premiums , and allowances ; an addition to the insurance
and dental plan; increased company contributions to the
Union's pension plan; and miscellaneous minor items.
This meeting was short, consisting merely of the pres-
entation by Lamontagne of the Union's proposals with a
short explanation.
Following this abbreviated meeting, according to Mi-
chael Bozzuto, he prepared, on his own and with no as-
sistance from anyone else, a set of counterproposals. He
did show these to his father for approval, then presented
them to the Union at their next meeting.
These proposals included the following major revi-
sions in the existing contract: The recognition clause
would be amended to eliminate those who worked less
than 32 hours a week; the entire union-security clause,
including the union shop and dues checkoff, would be
eliminated; the contractual workweek would be amended
to change the Monday beginning of the workweek to a
flexible beginning on any day an employee was sched-
uled by management to start his week; two contractual
holidays would be exchanged for two personal days; pro-
visions for wages for part-timers and restrictions on the
use of part-timers to eliminate overtime work for full-
time employees would be deleted, along with a cost-of-
living provision; and the Union's pension plan would be
replaced by a company profit-sharing plan. As with the
Union's proposals, there were several minor provisions.
In considering the issues in this case I have examined
the proposals advanced by the Union and the Company
and considered, as well, the background and experience
of those who conceived and prepared these documents.
The Union's proposals were formulated by Lamontagne
after consultation with representatives of the employees.
Lamontagne himself had at least 5 years' experience
dealing with the Company, its collective-bargaining con-
tracts, and problems arising under those contracts. The
proposals themselves seem to be standard fare, encom-
passing a number of benefits but not exceptional or ou-
tregeous for initial proposals.
The Company's proposals were prepared ostensibly by
a very young man who, while intelligent and well
spoken, admittedly had no experience in the preparation,
negotiation, or implementation of collective-bargaining
contracts. The proposals themselves, however, reflect a
complexity of structure which could eliminate first the
Union and eventually the bargaining unit itself. By this
rather sweeping statement I am referring to the proposal
to eliminate the union shop and the check off of union
dues, which would tend to eliminate the Union, and the
combination of the proposed elimination of part-time
workers who work less than 32 hours a week from the
bargaining unit when this provision is read together with
the change in the beginning of the workweek m article
V and the elimination of restrictions in article VIII on
the use of part-time employees . These latter proposals, as
was quickly recognized by the Union, would enable the
Company to use part-timers in order to dismantle the
whole bargaining unit.
All of this indicates to me that there was a wide gap
between the depth and sophistication of these company
proposals and the experience and ability of Michael Boz-
zuto, who swore that he had formulated the proposals all
by himself. This view was reinforced by Bozzuto's testi-
mony concerning these issues. He stated that he pro-
posed the elimination of the union shop because of nu-
merous complaints by employees who wanted a
"choice." When pressed he could recall these complaints
only in vague, general terms and could remember only
one employee by name who may have conveyed such a
complaint to him. As to the discontinuance of-the check-
off, Bozzuto said that he did not want to do the Union's
bookkeeping, but had no data on costs or even whether
the inclusion of union dues checkoff required an addi-
tional cost to the Company at all.2 On the use of part-
timers, likewise , Bozzuto's testimony is phrased in gener-
al terms, but there is no indication that there were any
studies done, or analysis made, on the subject of whether
part-timers could be used to replace full-time employees,
what savings could be achieved if this were done, or the
short-range or long-range impact on the Company 's situ-
ation of such a shift. Indeed, Lamontagne and Rossignol
testified, and Bozzuto agreed, that the latter said to them
that he did not, in any event, intend to replace full-timers
with part-timers.3
Beyond this perceived gap between the scope of these
proposals and the capacity of their purported author as
demonstrated by his testimony recounted above, Bozzu-
to's demeanor did not inspire me with confidence in his
grasp of the issues in this case, his memory, or his veraci-
ty. I observed him very closely while he testified, and
beyond a flippancy toward the proceeding, and an arro-
gance toward opposing counsel, I noted his discomfort
when pressed for details and a flexible memory which re-
sponded well on direct examination and dismally on
cross-examination.
In conclusion, I have serious doubts about the credibil-
ity of Michael Bozzuto 's testimony on substantive issues
in this case. At this point, in particular, I do not believe
his assertions that he alone prepared the Company's pro-
posals dated December 10, 1982. Beyond this, I will
make additional credibility determinations as the occa-
sion arises, but I will not generally credit Michael Boz-
zuto on substantive issues.
Up to now I have intentionally omitted discussing the
pension plan versus profit-sharing issue. The reason is
not that this issue was not a part of the overall negotia-
tion process, or that it was not a critical issue in the
eventual breakdown in this process, but rather that it is a
1 There was a lot of confused and inconsistent testimony concerning
this part of the Union's proposal. I do not agree with the Union's position
that the proposal was a typographical error because it merely reflected
language already existing in art VIIIU) of the contract, but I do not feel
that the inconsistency in the Union's position is significant in view of the
Company' s response to this proposal and the effect of that response on
the subsequent course of negotiations
2 This lack of precision contrasts with Bozzuto's careful computations
in his notes on the costs of the Union's proposals,
a This would indicate that these were diversionary, makeweight, or
even frivolous proposals which might be understandable at the beginning
of negotiations, but there was no explanation as to why the Company
held fast to them even after impasse and the strike in February 1983
BOZZUTO'S, INC.
different kind of an issue, with different causes, charac-
teristics, and dimensions. For example, the actuarial
problems with a multiemployer pension fund, which is
the kind involved here, are, despite the views of the
General Counsel and the Union, real enough. I know
from my own experience that employee pension fund
protections contained in the Employee Retirement
]Income Security Act of 1974 (ERISA) are complex and
difficult to understand. The evidence in this case shows
that the Respondent's accountant Daniel Bartz was
gravely concerned over the solvency of the New Eng-
land Teamsters and Trucking Industry Pension Plan, the
plan applicable here, as well as the impact on the Com-
pany's financial situation of another law, the Multi-em-
ployer Pension Plan Act of 1980. In the absence of evi-
dence to the contrary I cannot say that Bartz' concern
was unjustified, and I certainly cannot ascribe this con-
cern to antiunion considerations. Bartz conveyed his con-
cerns to Michael Bozzuto in a long memorandum dated
July 7, 1982. Bozzuto accepted the concerns expressed
by Bartz and advanced the problems of unfunded and
contingent liability voiced by Bartz as his reasons to the
Union and at the hearing why he did not want to agree
to continuation of the union pension plan in the contract.
Bozzuto also stated in his December 10 proposal that the
Company would replace the pension plan with a compa-
ny profit-sharing plan in which all employees could par-
ticipate. So, not only did Bozzuto have an arguably valid
reason for eliminating the pension plan, he also proposed
another employee benefit in place of the pension plan.
Both of these circumstances seem to me to set this pro-
posal apart from the other company proposals which
contained neither present logic nor future alternatives.
The Company's proposals, contained in a document
dated December 10, 1982, were presented to Lamon-
tagne at a meeting either on that date or on December
15.4 Lamontagne looked over the proposals and immedi-
ately recognized that there were serious problems there.
He told Bozzuto and Carangelo that they were trying to
get rid of the Union. They replied that they could work
with or without the Union. I credit Lamontagne's ver-
sion of this conversation, which, while not specifically
applicable to the issue, does bespeak an attitude of which
more will be heard later.
At the next meeting, on December 20, Lamontagne
was joined by Rossignol and the employee bargaining
committee. There was considerable discussion on all pro-
posals5 but agreement was reached on only three of the
Company's minor proposals and two minor union pro-
posals.6
On January 8, 1983, the Union held a meeting at
which the membership voted by a large majority to
reject the position of the Company at that time and au-
thorized a strike. Further meetings between the parties
4 Bozzuto and Carangelo placed the meeting on December 10, Lamon-
tagne on December 15 It is not necessary for me to resolve this issue,
this date is not important to a resolution of the issues here.
5 Despite allegations by witnesses for both sides about absolute refusals
to discuss issues, I do not find that such was the case Certainly both par-
ties took firm positions, but there was no total or consistent refusal to
talk
6 All dates from here on are in 1983 unless otherwise specified
981
were held on January 10, 19, and 20. By the end of this
last meeting, as near as I can determine from Rossignol's
testimony and some notes prepared by Bozzuto and tran-
scribed by the Company's administrative assistant Pat
Houle, the Union had withdrawn all of its proposals
except those on hourly wages, holidays, personal days,
and the pension fund. The Company, on the other hand,
was still standing firm on wages and holidays and, in ad-
dition, was still holding on the elimination of part-timers,
abolition of union security, change in the beginning of
the workweek, use of part-timers to do work normally
done by full-time employees on overtime, 7 and substitu-
tion of profit sharing for the pension plan.
On January 25 the parties met with Federal and state
mediators. The Company presented the Union what was
described as a "final and last proposal." This proposal
continued to hold on the exclusion of part-timers , elimi-
nation of the union shop (although the checkoff would
not be eliminated in its latest proposal), a change in the
workweek beginning limiting its application to "new em-
ployees or present employees who volunteer," a new
offer on wages, a retreat from the Company's previous
position on the use of part-timers on what would have
been overtime work for regular employees. Finally, the
Company stood firm on its offer of a profit-sharing plan
in place of the Union's pension plan. This last proposal
was to be guaranteed at $1000 per year for all those who
earned over $14,000 a year and pro-rated amounts for
those who earned less.
Having presented this proposal, Bozzuto told Union
Representatives Rossignol and Lamontagne that they
were at an impasse, that after January 31 any employee
who wanted to work at Bozzuto's was going to work
under these terms or not at all, and that he had "hired
200 people to replace every employee." Rossignol re-
plied to this by denying that they were at an impasse,
and he urged that the employees be permitted to work
under the old agreement while the Union and the Com-
pany worked out their differences.
There was an inconclusive meeting on January 26.
Then, on January 29 the Union held a ratification meet-
ing at which time the membership voted to accept the
Company's profit-sharing proposal, abandoning the pen-
sion plan, if the Company would move on the scope of
the bargaining unit in article I, move on the union shop
in article III, and give the 20 cents previously paid to the
pension plan in the first year of a 3-year wage package.
This was unacceptable to the Company, and at midnight
on January 31 the contract expired.
C. Incidents in January 1983
While negotiations were under way, there were sever-
al incidents which are alleged by the General Counsel as
independent violations of Section 8(a)(1) of the Act."
7 The Company had modified this, according to Bozuto's notes, by of-
fering to agree that only 5 percent of the work force should be part time.
This appears to contradict company assertions that it had no intention of
replacing full-time with part-time employees
8 The General Counsel has also moved to conform the pleadings with
the proof The record here show instances where there was no evidence
Continued
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first of these incidents occurred shortly after the
Union's membership meeting on January S . A short time
after that, Robert Saunders, a truckdriver , was working
in the Company's garage with several other employees.
Michael , Bozzuto joined the group and stated , according
to Saunders, that the Union did not care about the mem-
bers, but only about dues. Further, if the Company hired
someone new the Union got an initiation fee of $450.
Bozzuto denied that this conversation took place , but, as
I have already noted, I have placed little reliance on his
credibility . I do credit Saunders ' version , which agrees
with the testimony of Rossignol and others concerning
Bozzuto's attitude toward the Union.
Joseph Kruse, another driver, testified to an incident
which occurred in mid-January in Carangelo 's office.
Kruse was conversing with a security guard when Boz-
zuto joined the conversation . Bozzuto started talking
about the profit-sharing plan, then about the open shop.
Buzzuto pointed to notices on a board in Carangelo's
office concerning Teamsters problems in the midwest,9
and saidl that the Union would not fight for the employ-
ees, all the Union wanted was the initiation money. He
added that if he wanted to fire any of the employees the
Union would not fight for the employees ' jobs or any-
thing. Here Bozzuto denied the last part of the conversa-
tion , although he admitted that he had pointed out the
notices about the Teamsters to Kruse . Kruse impressed
me as a forthright and credible witness and I believe his
version of this incident.
Again, warehouseman Martin Cox testified that in
mid-January he was in the warehouse with other em-
ployees on their lunch break . Martin Carangelo came up
and joined the conversation . Carangelo denied that he
was in on the negotiations , and stated that he did not
care if the employees had a union or not , but that Buz-
zuto would take care of the employees . Carangelo denied
this, but I credit Cox, who impressed me as honest, ar-
ticulate, and candid . Carangelo 's demeanor did not im-
press me as truthful and his memory was very poor.
Warehouseman John Schlander testified about a con-
versation in Buzzuto 's office a week or so before the end
of January in which Bozzuto told him that a "closed"
shop was like going into a used-car lot where the sales-
man gave the customer a choice of only one car. Boz-
zuto recalled this conversation , but not its substance.
Carangelo , who was also present, said there was no men-
tion of a closed or open shop in this conversation, thus
contradicting Bozzuto. I credit Schlander in this in-
stance.
Schlander also testified about a conversation with Car-
angelo after a profit-sharing meeting (of which more
later) on January 28. In this conversation Carangelo told
Schlander that he did not need a union if he came in and
did his job every day, that nothing would change (at the
on certain allegations in the complaint It also shows that there were in-
stances where the complaint was amended during the course of the hear-
ing. The briefs filed by the General Counsel and the Company show that
both parties had a clear understanding of all of the issues in the case
Thus, I grant the General Counsel's motion
B Employees Petrucci, Battista, Boisvert, and Cox verified that news-
paper articles concerning Teamsters misuse of employees money were
posted in the warehouse before and after February 1, 1983
Company) with or without a union, and that everything
would be the same. Carangelo did not deny this and I
credit Schlander's testimony here.
Michael Bates , a forklift operator, testified that on Jan-
uary 31 he was approached by Carangelo, who told him
that a lot of shops were going nonunion; that Michael
Bozzuto represented new blood in the Company and the
employees should give him a chance to work out the
bugs; that things would go a lot smoother without a
union ; that they (the employees) should give the open
shop a chance; and that people deserved the right to
choose whether to join a union or not. Carangelo denied
this conversation. Again I credit Bates, whom I found to
be a credible witness. I find all these incidents to violate
Section 8(a)(1) of the Act.
Charles Carangelo (Marty's brother), Jeff Cogle, and
John Romanauskas all testified that they were asked by
their supervisor George Rothbugel to attend a profit-
sharing meeting . They all declined to attend. Then, on
January 29, Rothbugel told each of them that they were
on Marty Carangelo's "shit list" for not attending the
meeting. There is no indication that anything further
came of this. However, I find that the incident was a
violation of Section 8(a)(1) of the Act:
D. Advertisements for Replacements
Beyond the facts which I have found in the previous
two sections of this decision, there are two further mat-
ters to be considered.
First, in mid-January, the Company placed advertise-
ments in the help-wanted sections of several local news-
papers, including papers in Waterbury, Hartford, and
New Haven. The advertisements in the latter paper at
least were the standard one column in width, but were 2
or 3 inches in length. The advertisements stated that
there were openings for warehousemen, mechanics, and
drivers.
Whatever the reason, the widespread advertisements,
the difficult economic times in early 1983, or the fact
that a competitor had recently shut down, the response
was overwhelming. Four to five hundred applicants
showed up at the Company's warehouse on the days
specified. According to the Company's personnel and se-
curity director, Andrew O'Leary, it was necessary to
direct the applicants to an area of the warehouse differ-
ent from that ordinarily used to accept applications and
interview candidates. Thus, this crowd of jobseekers
were lined up in areas where they were visible to the
Company's employees. i ° As it turned out, according to
O'Leary, he hired only three warehouse employees.
The Company's explanation for placing these adver-
tisements, as voiced by Michael Bozzuto at the hearing,
is that the Company was negotiating with a view to pur-
chasing a small chain of stores called Pegnataro's, Inc. If
Bozzuto's acquired Pegnataro's, a substantial number of
warehousemen and drivers would be required. In addi-
tion, a competitor of the Company's, Gaer Brothers, was
1° Much is made of this circumstance by the General Counsel, but it
seems to me that the presence of this horde, at any place in or immediate-
ly outside the warehouse, would have the same impact on employees.
BOZZUTO'S, INC
rumored, in early January, to be going out of business
and the Company had picked up an account called Suss-
man's. On January 11, Adam Buzzuto sent a memoran-
dum to O'Leary and Carangelo outlining the Gear and
Sussman situations as well as Pegnataro's, and asking
them to discuss it with Michael and "do whatever is nec-
essary." Despite the instruction in the memorandum
O'Leary himself testified that he decided to place the ad-
vertisements.
I think it is true that negotiations with Pegnataro's
were going on, and I believe that the circumstances out-
lined in Adam Bozzuto's memorandum of January 11
were true. What I do not believe are the explanations of
Michael Bozzuto and O'Leary that the newspaper adver-
tisements, widespread and prominent as they were,11
were solely for the purposes stated by them. There is no
indication in Adam Bozzuto's memorandum of how
many employees were needed. O'Leary said that he de-
termined, on his own, that 10 or 15 people were needed,
and he went ahead and placed the advertisements. Mi-
chael Bozzuto's testimony did not indicate that any spe-
cific number of employees were needed, but did state
clearly that he directed O'Leary to place the advertise-
ments (specifying no telephone calls to guarantee that all
responses would be in person at the warehouse). There
was no testimony, other than that of O'Leary, that any
study was made by the Company on how many employ-
ees of each category would be-needed, nor were there
searches of existing files to turn up applicants. In the
light of the parlous economic conditions in early 1983,
the Gaer situation, and the other business problems men-
tioned by Adam Bozzuto, it is highly unlikely that there
would not have been a number of live applications of
qualified people in the Company's files. In any event, the
scope of the need as envisioned by O'Leary would not
have required the nature and extent of the advertise-
ments actually placed.
In these circumstances I find that the reasons proffered
by Michael Bozzuto and O'Leary are false and that the
real reasons for the advertisements were to build up a
pool of prospective replacements for strikers, and also to
show the current employees that a large number of re-
placements were available. This whole incident constitut-
ed coercion of employees in violation of Section 8(a)(1)
of the Act.
E. The Profit-Sharing Meetings
The second matter is the series of meetings held by the
Company with its employees on January 27 and 28.
During the negotiations, Michael Bozzuto told the
Union that he wanted to explain personally to his em-
ployees the merits of the Company's profit-sharing plan.
Rossignol and Lamontagne opposed this, but eventually
agreed that they would not object if the Company held a
single meeting, held at a time when all employees could
attend, confined solely to a discussion of the profit-shar-
ing plan. Bozzuto disagreed, feeling that he could explain
the profit-sharing issue better in a series of smaller meet-
11 I consider a help-wanted advertisement 2 inches or more in length
as prominent, and I consider advertisements in newspapers in Hartford,
New Haven, and Waterbury as widespread
983
ings. As it turned out the parties did not come to any
agreement, and the Company went ahead and scheduled
meetings for seven or eight small groups of employees.
In connection with these meetings the Company en-
gaged the services of Edwin Ricker, a management con-
sultant in labor relations whose company, PLRS (Per-
sonnel Labor Relations Services), is based in Grand
Blanc, Michigan.
Ricker was called as a witness by the Company, and
testified that he designs profit-sharing plans (although he
did not design the one at Bozzuto's) and represents em-
ployers in all stages of labor relations. He stated at one
point that he was retained by the Company at the end of
1982 and the beginning of 1983 to be involved with
"some retail stores that the warehouse was working
with." Later, Ricker stated that he had been "working
with Bozzuto on employee relations with stores all last
year off and on." His explanation of the relations with
the stores was the question of what employee relations
programs should be implemented if the sale of the stores
to Bozzuto's took place. This last affords some logical
reason for Ricker's presence on the scene, but does not
eliminate the inconsistency about when his involvement
began. He did testify that he was asked "right after the
first of the year [1983] to come in and explain the profit
sharing plan to Bozzuto's employees." Ricker stated that
in discussions at some time prior to the meetings, he and
Michael Bozzuto agreed that they would approach the
employees with a three-stage discussion, the first stage
being an explanation of the profit-sharing plan (presum-
ably by Ricker) and a comparison of that plan with the
Teamsters pension plan; second, Michael was to explain
the Company's offer; and, third, Michael and Ricker
would answer employees' questions.12
Ricker did not appear to me to be a credible witness. I
base this conclusion first on his demeanor, second on the
inconsistency noted above on the time of his association
with the Company, and third on his vagueness and lack
of precision when asked on cross-examination by the
General Counsel and counsel for the Union what he did
and what the scope of his relations were with the Com-
pany. I have also considered the circumstance that al-
though both Michael Bozzuto and Ricker stated that
Ricker was clearly identified both by name and function,
only one of the half-dozen or so employees who testified
about the meetings was able to remember Ricker's name.
I found these employees, Petrucci, Battista, and Bates, to
be intelligent, perceptive, and credible witnesses.
The meetings were all held in the Company's confer-
ence room with groups of between 8 and 35 employees.
Summarizing the testimony of the employees named
above, it is clear that the scheme outlined by Ricker was
not followed; both Ricker and Michael Bozzuto talked
about the profit-sharing plan and the Union's pension
plan, and they both talked about the Company's proposal
12 As a result of this testimony by Ricker there is no doubt that he was
acting as the Respondent's agent during the profit-sharing meetings on
January 27 and 28.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with emphasis on the open shop. 13 Finally, both partici-
pated in the question and answer period.
Earl Tashereau quoted Michael Bozzuto as saying that
the Union would treat the employees better if they had
an open shop. Roland Landry said Michael said much
the same thing. Samuel Boisvert testified that Michael
told the employees that they did not need a Union as in
the thirties, that the Company would take care of them
now. Ricker said that the Company had 600 applicants,
including 200 from another warehouse-there were
trained employees ready to come in and take their jobs.
Anthony Faryniarz said that Michael spoke about the
profit-sharing and pension plans and said if the employ-
ees were not satisfied with his offer he had 800 appli-
cants who wanted their jobs. There would be an open
shop after February 1 and he, Michael, would take care
of the employees.
Gary Petrucci testified that both Michael Bozzuto and
the "stranger" (Ricker) talked about all matters. Michael
said he could not live with the pension plan, that he was
going to get a lwayer and fight to get the employees'
contributions back from the Union. Michael also spoke
about it being the eighties and it was time for a change.
The Union would work harder for the employees if they
had an open shop. Michael also stated that he wanted to
bring nonunion part-timers in at 32 hours a week and not
pay health and welfare contributions. John Battista
quoted Michael as telling the employees it was the eight-
ies and they did not need the Union any longer. Manage-
ment and employees could work together and profit-
sharing would be better for all. He said that he had a
"bunch of applicants" and that some employees were
going to cross the picket line. If employees were "out
there" they would be out of a job. Michael Bates also
mentioned that Michael Bozzuto spoke about all the
Company proposals, and told the employees that if they
did not work under his proposals they would not work
at all. He also reiterated the statement that he would get
the employees' contributions back from the pension fund
no matter how long it took or what the costs were as a
condition of the employees' acceptance of profit sharing.
I find that these incidents constitute violations of Section
8(a)(1) of the Act.
F. The Strike and its Aftermath
As I have described, the union membership voted on
January 29 to accept the Company's profit-sharing plan
in place of the pension plan. This concession was not
enough to move the Company to agreement or, indeed,
to change its position at all, at a last minute meeting held
on January 31.
Lamontagne's testimony made it evident that the union
leaders were aware during the month of January that the
resolve of the membership was not strong. This problem
apparently led Lamontagne and Rossignol to urge the
Company to allow the employees to continue to work
13 Ricker's own testimony about the meetings reveals a somewhat dis-
ingenuous preoccupation with the "advantages" to employees of an open
shop Some of this philosophy appears in Michael Bozzuto's testimony
concerning events which occurred before Ricker's alleged first contact
with the negotiations here.
under the old contract while the negotiations continued.
Michael Bozzuto would not agree, insisting rather on im-
posing the terms of his last offer on the employees on
February 1.
In a last effort to rally their flagging troops Rossignol
and Lamontagne held a meeting in a commuter parking
lot near the plant on the night of January 31 urging all
the employees to support the coming strike. These ef-
forts were unavailing, and only 50 or 60 out of 130 em-
ployees in the unit actually began the strike on February
1.14
Despite the lack of unanimous support, the Union set
up picket lines at the warehouse. Rossignol testified that
during the first day or so, he observed a vehicle marked
with a security guard company insignia and a jeep "Ren-
egade" driven by Michael Bozzuto driving up and down
the road where picketing was going on with persons
inside using videotape cameras to make tapes of the pick-
ets. At first there had been no violence, but on February
2 at 4 a.m. there was some shooting at a Bozzuto truck
somewhere away from the picket line. A striking em-
ployee, Angelo L. Ingalo, ,pleaded guilty to two counts
of an indictment charging him with this shooting. There
are no allegations of unlawful taping of strikers after the
shooting incident, but I find that the taping began as
soon as the picket lines were set up on February 1,1 s
Robert Saunders testified that he had stayed out on
February 1. Adam Bozzuto was angry, and said he had
taken Saunders back two or three times (Saunders had
quit and returned several times) and all he did was walk
on a picket line. Adam then told Jim Christiano (appar-
ently a supervisor) not to put Saunders on the "special
list." Pat Houle testified that Adam was joking when he
said this, but Saunders thought he was serious and angry,
even though Saunders did not know what the "special
list" meant.
Concerning other picket line incidents, Jeff Cogle tes-
tified that the grocery shipping manager, Serge Cheva-
lier, came up to where Romanauskas, Charlie Carangelo,
Taschereau, and Cogle were on the picket line on Febru-
ary 3 and told them that they did not need a union in
there. All the unions did was cost them money.
Romanauska testified that Marty Carangelo came up
to him on the picket line early in February and told him
his job was "intact," and that Michael Bozzuto would
take care of him.
The strike lasted until February 22. There was a nego-
tiation session on February 3 at which nothing of conse-
quence occurred and on February 17 when the Union at-
tempted to break the deadlock on the union shop period
by offering an open period during which employees
could resign their membership. The Company agreed in
principle, but the parties could not agree on the duration
of the open period. The Company also withdrew its in-
14 The question as to whether this was a strike, a lockout, or a con-
structive discharge of the employees who participated will be discussed
below
15 The Respondent's witnesses did not deny the taping but sought to
justify the activity because of violence in a prior strike I cannot find that
that has been established on this record and I find the taping on February
1 and early on February 2 to violate Sec 8(a)(1) of the Act
BOZZUTO'S, INC.
sistence on excluding part-timers at this meeting. There
was no final agreement, and no meetings had been be-
tween February 17 and the close of this hearing on
August 8, 1983.
After the February 17 meeting, the Union abandoned
the strike and instructed the remaining strikers to return
to work. All of those who asked for reinstatement were
reinstated despite the threats I have reported which oc-
curred at the profit-sharing, meetings. When some of the
employees returned, they were wearing hats bearing the
name and local number of the Union. Gerard Bellemare
and Joe Kruse testified that Michael Bozzuto asked the
employees why they were wearing the union hats. He
then said he did not want trouble between people who
were wearing those hats and others inside the warehouse
who had hats with a different message written on them.
He told the employees not to wear the union hats inside
the warehouse. In fact they did wear the hats, and there
was no trouble and no retaliation against any employees.
Another hat incident was described by Jeff Cogle. He
described a conversation between himself and John Ro-
manauskas and Marty Carangelo around the beginning of
March. The employees were wearing union hats and
Marty said he liked them and asked how much they cost.
They said the hats were free and Marty replied that it
had cost them over $1000 to wear these hats.
The General Counsel has aiged two additional viola-
tions by the Respondent of its duty to bargain. There
was considerable testimony about a "hot lunch" pro-
gram. The facts according to Tashereau and Landry are
that after the strike the employees received free lunches
at first fairly often, later once a week, and then once a
month. There was evidence that this had not been the
practice before the strike, and there was no question that
this new benefit was not a part of the Respondent's last
offer and had not been discussed with the Union. Simi-
larly, Landry and Boisvert testified that the Employer
had instituted an employee "hot line" without consulta-
tion with the Union. The Respondent itself introduced a
memorandum from Michael Bozzuto to all employees in-
troducing a new communications procedure by means of
an oral or written "hot line." There is no question that
there was no consultation with the Union over this new
procedure.' 8
G. Analysis and Conclusions
The central issue in this case is the question of wheth-
er or not the Respondent refused to bargain in good faith
in violation of Section 8(a)(5) of the Act. In examining
this question it seems to me that there are three separate
elements which must be explored. The first is whether
the Company's proposals themselves were so totally un-
acceptable that, as a matter of law, the action of the Re-
spondent in placing them on the table is a violation of
law. The second element is whether, if the original pro-
posals were not unlawful, the Respondent's insistence on
some of them to the point of impasse constitutes a viola-
16 Any other incident not reported in this review of the facts, includ-
ing specifically allegations by Cox about Carangelo and writing on the
mens' room wall, I do not consider to have been established by the Gen-
eral Counsel
985
tion. The third element, which reflects back on the other
two, is whether the totality of the Respondent's conduct
shows that it had no real desire to reach an agreement,
and that, even if the proposals, or the insistence on them,
is not found violative, then the entire conduct of the Re-
spondent shows that its actions were unlawful.
In my view, all three elements have been proven in
this case. Taking these elements in reverse order, it is
clear to me that the totality of the Respondent's conduct
shows that the original proposals were not designed or
intended to form the basis for an agreement or serious
negotiations except on the Respondent's own terms. The
combination of the exclusion of the part-timers in article
I, the abolition of the union shop and checkoff in article
III, the elimination of guaranteed starting times in article
V, and the elimination of the restriction against part-
timers in article VIII appears to me to be fatal both to
the Union as bargaining agent and to the bargaining unit
as a viable entity.
I must also add to this enumeration the issue of the
pension fund. As I have indicated, I consider the ques-
tion of the pension fund profit-sharing; issue to be some-
what aside and apart from those other issues I have men-
tioned here. Contributions to the pension fund were get-
ting more expensive as shown by the Union's proposals.
The alarm signals sent up by the Respondent's account-
ant Bartz although perhaps overly dramatic, nonetheless
reflected what I consider a serious and legitimate con-
cern with real problems of unfunded and/or contingent
liability. In addition, the evidence shows that the Union
was entirely inflexible with respect to the pension fund.
An undated directive from the fund mandated certain
contribution and specific contract language which "must
be included" for the plan to continue.
It is difficult to view this issue as really one which ex-
isted only between the parties but, rather, it appears as
an issue imposed upon them by outside entities, similar to
the Pay Board guidelines of the early seventies or per-
haps a forerunner of other, further, outside impositions as
the result of statutes, governmental regulations (or the
removal of such regulations), or the imperatives of multi-
employer or pattern bargaining.
Difficult as it is to consider this issue along side the
others, this is what must be done. Certainly the amount
of evidence received on this issue indicates that the par-
ties considered it central to their deliberations. It was im-
portant enough to the Company to make it a part of its
January 25 proposals and to guarantee payment of $1000
to each full-time employee, more than double the first
year amount requested by the Union to fund the pension
plan. Finally, I find it most significant that even after the
acceptance of its profit-sharing proposal by the member-
ship, the Respondent held on to its original proposals,
which could reasonably be interpreted as leading to the
elimination not only of full-time employees, but of all
employees who might be eligible for profit-sharing con-
tributions. Thus the profit-sharing plan might well have
turned out to be an illusory or even a nonexistent benefit.
Turning to the Respondent's conduct during the
period of negotiations in January 198.3, during the time
of the strike and afterwards, I can discern a thread or a
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pattern of conduct directed against the Union and its
statutory function as bargaining representative. This is
demonstrated by the series of incidents I have found in
the prestrike period, e.g., constant statements such as
those by Michael Bozzuto to Robert Saunders concern-
ing the Union's disinterest in the employees, to Joseph
Kruse that the Union would not fight for the employees,
and to John Schlander about the Union as a shifty used-
car salesman. In addition I have noted statements by
Carangelo to Martin Cox and other employees that Mi-
chael Bozzuto would take care of them, by Carangelo to
Schlander that the employees did not need a union, and
by Carangelo to Michael Bates that things would go a
lot smoother without a union.
These incidents may seem like pinpricks compared to
the crude threats and blatant promises frequently en-
countered in the field of labor- management reactions, but
they do show a pattern of conduct disparaging the
Union, and indicating that the employees' continued ad-
herence to the Union was futile, Firmat Mfg. Corp., 255
NLRB 1213 (1981); Columbia Building Materials, 239
NLRB 1342 (1979). I find that these incidents constitute
independent violations of the Act, and also give an indi-
cation of the Respondent's attitude toward its duty to
bargain in good faith with the Union.
Continuing along the same thread, or pattern, I note
the assembly of hundreds of jobseekers as the response to
newspaper advertisements in the cities of Hartford, New
Haven, and Waterbury also constitutes a violation of
Section 8(a)(1) of the Act. This is not to say that an em-
ployer may not advertise for replacement help when
faced with a strike, but where the testimony is, by the
Respondent's own witnesses, that only 10 employees
were being sought, advertisements of this size and distri-
bution, in the winter of 1983, could only have been de-
signed to bring in a huge number of applicants. The fact
that the applicants were assembled in a different place
that is usually set aside for interviews emphasized their
visibility to the employees. The use of this crowd of ap-
plicants to threaten prospective strikers at the profit-shar-
ing meeting removes any doubt that the whole operation,
the advertisements, the assembly of the applicants, and
the use of the incident to intimidate and coerce the em-
ployees in a violation of Section 8(a)(1) of the Act, is an-
other piece of the pattern of a refusal to bargain.
Moreover, the statement to employees that they would
be replaced if they failed to work on February 1 mistat-
ed the law and tended to interfere with and coerce the
employees in their right to strike, and constitute addi-
tional violations of Section 8(a)(1). Dayton Food Fair
Stores v. NLRB, 399 F.2d 153 (6th Cir. 1968).
Along with the threats to replace the employees with
the applicants, Michael Bozzuto continued at the profit-
sharing meetings to dwell on the theme of a open shop,
the fact that it was the eighties, not the thirties, and that
employees did not need a Union because now the Com-
pany would take care of them. He pledged to the em-
ployees that he would hire a lawyer and recover all of
the money that the Company had contributed to the pen-
sion fund. All of these statements constituted violations
of Section 8(a)(1) of the Act by disparaging the Union in
the eyes of employees (General Athletic Products Co., 227
NLRB 1565 (1977)) and by promising the employees
benefits if they abandoned their support of the Union
(Pine Valley Meats, 255 NLRB 402 (1981)).
The threats to retaliate against employees who had not
attended these profit-sharing meetings also violated Sec-
tion 8(a)(1) even though there was, so far as can be de-
termined , no actual discrimination against these employ-
ees.
The threats to retaliate against employees who had not
attended these profit-sharing meetings also violated Sec-
tion 8(a)(1) even though there was, so far as can be de-
termined , no actual discrimination against these employ-
ees.
I find that during the strick the activities of Michael
Bozzuto and company security people in videotaping
strikers on February I and early on February 2 (before
the shooting incident) likewise constituted unlawful sur-
veillance of employees. Cutting, Inc., 255 NLRB 534
(1981).
I cannot find the other picket line incidents , such as
the incidents in which Carangelo and Chevalier are al-
leged to have participated, rise to the status of violations
of law. I do think that the interrogations of employees
returning to work in February and March about their
union hats , and the requests to employees not to wear
those hats , constitute separate attempts to coerce those
employees and, as such , " eparate violations of Section
8(a)(1). Gossen Co., 254 NLRB 339 (1981 ); Overnite
Transportation Co., 254 NLRB 132 (1981). I find a sepa-
rate violation in Charles Carangelo 's statement to em-
ployees that their Teamsters hats cost them $ 1000 a piece
(Intermountain Rural Electric Assn., 253 NLRB 1153
(1981)), but I find that the allegation concerning writings
on the restroom walls and conversations between Caran-
gelo and Union Steward Cox concerning those writings
have not been shown by a preponderance of the evi-
dence to have occurred as alleged by the General Coun-
sel.
Turning next to the course of negotiations , one has to
look no farther than notes of the negotiations , entered in
evidence by the Respondent, to determine that by Janu-
ary 20 the Union had withdrawn practically all of its
proposals . All that was left on the table of the Union's
original proposals on that date were wages (which all
agreed were not really a big issue here), the pension
plan, and one other minor item . At the same time the
Respondent had still made no movement on its basic pro-
posals. By January 31 , the Union had even abandoned its
insistence on the pension plan . As I have noted, even this
most fundamental concession produced little on the Re-
spondent's part and the strike commenced on February
1. All of this convinces me that the Respondent did not
approach the negotiations with a genuine intention to
reach agreement on any terms but its own. The negotia-
tions show that the Company avidly sought agreement in
early meetings and, when that tactic did not succeed,
unilaterally proclaimed an impasse and refused to consid-
er any extension of the existing contract . All of these fac-
tors lead to the conclusion that the Respondent refused
to bargain in good faith in violation of Section 8(a)(5) of
the Act. NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131
BOZZUTO'S, INC.
(1st Cir. 1953); Columbia Tribune Publishing Co., 201
NLRB 538 (1973).
Because of these findings I think there is no question
that the Respondent's proposals dated December 10,
1982, in and of themselves constituted a violation of Sec-
tion 8(a)(5).
I cannot find that the Respondent violated the law by
reneging on an agreement dealing with article I on Janu-
ary 20. While I generally credit the testimony of Rossig-
nol and Lamontagne I do not think this issue is clear
enough on the record to permit a finding.
There is no dispute that the Respondent said it was
going to implement its "last offer" beginning on Febru-
ary 1. The record does not clearly show that such was
the case.'' At the hearing it was admitted that the
profit-sharing plan had not yet been implemented. In any
event, whatever changes were made were effectuated
not as the result of a valid impasse, but as the result of
the Respondent's bad-faith bargaining (Seattle First Na-
tional Bank v. NLRB, 638 E2d 1221 (9th Cir. 1980)) and
constitute a further refusal to bargain and a separate vio-
lation of Section 8(a)(5).
However, the lack of clarity in the record about just
what was implemented by the Respondent on February 1
makes it impossible for me to find that those employees
who did go out on strike were in fact constructively dis-
charged. In an atmosphere so suffused with violations of
law, however, in a pattern beginning in December 1982
and continuing into March 1983, it is difficult to see how
the strike which began on February 1 could be classified
as an economic strike. The unfair labor practices I have
found commenced before the strike vote of January 8,
and, indeed, I find that the impact of these unfair labor
practices was pronounced, resulting in the fact that only
a minority of the Union's membership actually went out
on strike. I find that the strike which began on February
34 This question can be cleared up in the compliance stage of this pro-
ceeding.
987
1 was an unfair labor practice strike from its inception.
Federal Mogul Corp., 212 NLRB 950 (1974).
Finally, I find that by instituting so-called hot lunch
and a so-called hotline programs without notice to or
consultation with the Union the Respondent has further
violated Section 8(a)(5) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in and
is engaging in certain unfair labor practices , I shall rec-
ommend that it cease and desist therefrom and take cer-
tain action designed to effectuate the policies of the Act.
Specifically I shall recommend that the Respondent
take immediate steps to meet with the Union and that it
meet thereafter at reasonable times and confer in good
faith with respect to wages , hours, and other conditions
of employment.' 8
CONCLUSIONS OF LAW
1. The Respondent, Bozzuto's Inc., is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local Union 677, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening, placing under surveillance, interro-
gating, and promising benefits to its employees, by dis-
paraging the Union, and by refusing to bargain with the
Union, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
[Recommended Order omitted from publication.]
is I recommend no further remedial order concerning the unilateral
changes in wages and other conditions of employment since the record is
unclear whether such changes were economically advantageous or not. If
not, the changes can be remedied by the backpay order; if so, a resolu-
tion would be better left to the collective-bargaining process