Endo Laboratories, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1978

239 N.L.R.B. 1074 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Endo Laboratories, Inc., and Division 100 of Local
144, Hotel, Hospital and Health Care Services
Union, Service Employees International Union.
Cases 29-CA-5647 and 29-CA-5735
December 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On August 28, 1978, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Charging Party and
General Counsel filed exceptions and cross-excep-
tions, respectively, with supporting briefs, and Re-
spondent filed a brief in answer to General Counsel's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.'
The Administrative Law Judge dismissed, in its en-
tirety, the complaint herein which alleged that Re-
spondent violated Section 8(aX1) and (5) of the Act
by failing and refusing to bargain in good faith with
the Union after May 5, 1977, 2 and further violated
Section 8(a)(1) of the Act by unlawfully interrogating
and threatening its employees concerning their union
membership and activities. The General Counsel and
Charging Party excepted. For the reasons set forth
below, we find merit to those exceptions relating to
the independent violations of Section 8(a)(1) of the
Act, as well as those concerning the 8(a)(5) "take it or
leave it" allegation.3
Respondent Endo Laboratories, a subsidiary of E.
1. du Pont de Nemours & Company since January
1970, had recognized the Union in 1968 and had bar-
i The Administrative Law Judge appears to rely on Respondent's sum-
maries to determine the substance of the negotiating sessions. We note,
however, that in allowing the summaries into evidence the Administrative
Law Judge admitted them solely to establish what was read to the employ-
eo and to reflect management's view of the negotiation sessions. Accord-
ingly, we do not rely on the summaries for any purpose other than that
stated on the record.
2 General Counsel took the position that the 8(aX5) allegation included
the issues of Respondent's "take it or leave it" bargaining and its direct
communications with employees during the course of that bargaining.
We agree with the Administrative Law Judge that Respondent's com-
munications with its employees during the course of bargaining did not rise
to the level of a violation of Sec. 8(aX5) for the reasons set forth in his
Decision.
gainined for a succession of collective-bargaining
agreements, the latest one in effect between June 30,
1976, and June 30, 1977. That agreement contained,
inter alia, a health and welfare provision (art. 22),
calling for monthly payments by Respondent, which
Respondent wished to supplant with its own compre-
hensive benefit package, hereinafter referred to as
the benefit package.4 Suffice it to say that the benefit
package, if instituted, would result in a major modifi-
cation of the system then in effect-not the least of
which involved monetary contribution by each emp-
ployee to receive benefits which had previously been
completely subsidized by the Union and Respondent
under the health and welfare program. It is in this
context that we proceed to an examination of the
manner in which Respondent presented its benefit
package and then attempted to gain the Union's ac-
ceptance.
A month prior to the commencement of formal
negotiations on May 5,5 the Union, through its busi-
ness representative, William G. Benson, submitted
proposals in anticipation of the expiration of the con-
tract on June 30. On May 3, Benson and other repre-
sentatives of the Union met with Joseph DeRosa,
Respondent's vice president of employee relations, at
which time Benson was advised of the existence of a
benefit package which DeRosa implied would be of-
fered to the Union. The details of the package were
not discussed at the May 3 meeting.
When the parties met for the first negotiating ses-
sion on May 5, there was brief discussion of the
Union's written proposals of April 4, and then De-
Rosa advised the Union that Respondent wished to
extend the benefit package-which it had imple-
mented for its nonunit employees-to those employ-
ees represented by the Union.
At this juncture of our analysis, we note that Re-
spondent could not yet present a complete package:
Respondent did not know the actual costs to each
employee for the Blue Cross-Blue Shield plan-data
which did not become available until October; nor
could Respondent supply specific benefit rates allow-
able for various medical procedures under its hospi-
tal-medical insurance coverage. The Administrative
Law Judge apparently did not perceive this fact as
significant and notes that Respondent supplied the
Union with cost estimates. We do not agree with the
Administrative Law Judge's evaluation. As noted su-
pra, Respondent's benefit package represented a sig-
nificant and unprecedented cost to each employee; a
cost which translated into a concrete "dollars and
cents" deduction from each employee's weekly wag-
4 It should be noted that not only art. 22 would be affected by
Respondent's benefit package, but also vacations (art. 18) and sick leave
(art. 24).
All dates hereinafter are 1977 unless otherwise noted.
1074
ENDO LABORATORIES, INC.
es. In spite of this fact, Respondent did not tender a
wage offer until June 23, as part of its "final and
best" offer, thereby making it virtually impossible for
the Union to engage in any kind of realistic cost
analysis, not only to determine whether the coverage
provided by the benefit package warranted the ex-
pense to each employee but, even more significantly,
what would in fact be the resulting "real" wage in-
crease enjoyed by each employee, given the new per
capita expenditure for benefits. The Union was
thereby placed in a position where Respondent was
asking it to agree to a "contract" that was not as yet
fully on the table.6 Moreover, these substantive prob-
lems did not occur in a vacuum and, indeed,
Respondent's bargaining table tactics exacerbated an
already questionable situation. Respondent formu-
lated ground rules to the effect that nothing during
negotiations constituted an offer unless put in writ-
ing; that if negotiations continued beyond the expi-
ration date of the then-existing contract there would
be no retroactivity of benefits; and that the progress
of negotiations would be communicated to the em-
ployees throughout bargaining by representatives of
management. Respondent's "offer," as defined by its
own ground rules, was that of June 23, tendered only
I week prior to contract expiration. This allowed the
Union that 1 week either to respond affirmatively or
lose any potential wage increase between the time the
old contract expired and the time that a new one
might be signed.
As part of its bargaining table tactics, and in spite
of the fact that the benefit package would supplant a
number of the existing benefits, Respondent refused
to discuss any aspect of the package separately-
thereby excluding the opportunity to engage in the
kind of "horse trading" or "give-and-take" that char-
acterizes good-faith bargaining. In finding that Re-
spondent engaged in what has been termed "take-it-
or-leave-it" bargaining, we do not here depart from
the precepts of Section 8(d) of the Act, which pro-
vides, in relevant part, that the obligation to bargain
collectively "does not compel either party to agree to
a proposal or require the making of a concession";
nor are we unaware of the fact that, as a practical
matter, parties often fail to reach agreement on one
or more substantive issues and in so failing come well
within the parameters of good-faith bargaining. The
issue before us here, however, does not fall within the
conceptual framework of that portion of Section 8(d)
cited supra, for the difficulty here is not with the sub-
stance of Respondent's proposal but rather with the
manner of its presentation. Respondent not only de-
6 This is not to say that parties may never decide to postpone agreement
on a particular issue, but one party cannot fail to provide important sub-
stantive terms of a provision and then press for its acceptance
dined to consider any part of the package separately
but, indeed, also indicated that it was not at liberty to
make changes in the package as presented; that the
package was Du Pont's package; and that there
could be no discussion concerning its contents.7
In the course of his analysis of the issues, and in
support of his determination to dismiss the com-
plaint, the Administrative Law Judge concerns him-
self with the substance of Respondent's proposals
and notes that the benefit package "cannot be
termed regressive or destructive" and further states
that the package was "not so unreasonable as to cast
doubt upon Respondent's good faith in offering
them." He also notes that one of Respondent's rea-
sons for offering the package was an apparent in-
crease in contributions to the Union's health and
welfare fund and its inability to obtain cost informa-
tion from the Union. s We do not agree with this anal-
ysis. The primary issue here is not why Respondent
wanted this package, or whether the terms were in
and of themselves unacceptable to the Union, but
rather the very method by which Respondent ten-
dered that package at the bargaining table. The Ad-
ministrative Law Judge indicates that Respondent
showed movement in some areas, citing its deferral
of implementation of the disability pay plan until 6
months into the new contract year. In fact,
Respondent's benefit plans were not all scheduled to
begin as of July 1, but were rather staggered over a
6-month period, thus leaving employees without cov-
erage in some areas unless Respondent continued
health and welfare payments during this hiatus.
Respondent's offer to continue the health and wel-
fare payments was not, therefore, an example of its
"largesse" at the bargaining table, but was rather the
result of a "no-choice" situation where it was neces-
sary to provide benefits to the employees until its
own benefit package could become operational. The
supper allowance noted by the Administrative Law
Judge was not offered to the Union until June 23,
along with Respondent's "final and best" offer; nor
was it a major issue under discussion. With respect to
the job transfer issue, there was no indication that
this was a major "sticking point" or that it repre-
sented a concession by either side. Unlike the Ad-
ministrative Law Judge, we do not consider
Respondent's "concessions" on these issues to be
controlling with respect to the issue of whether Re-
?We note, and in accordance with the factual findings of the Administra-
tive Law Judge, that DeRosa presented Respondent's position somewhat
more plainly. for in response to Benson's statement "you are telling the
employees and we, the Union, that it is either take it or go to hell," DeRosa
stated. "You are reading me loud and clear."
a The record reveals that Respondent, after having been notified by the
Union that the health and welfare information was to be obtained from the
fund and its trustees, continued to address its inquines to the inappropriate
party
107n5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent engaged in "take-it-or-leave-it" bargaining.
Moreover, we believe the Administrative Law
Judge's statement that the "Act does not dictate par-
ticular bargaining techniques, tactics, or strategy" to
be misapplied herein. To engage in an examination
of bargaining need not and does not mean that we
choreograph the dance. We have recently expressed
our thinking in this area in Pease Company, 237
NLRB 1069 (1978):
It is not, of course, the prerogative or desire of
this Board to impose upon the parties any bar-
gaining format, either substantive or procedural.
It is, however, incumbent upon us to review the
bargaining interactions of the parties when one
party asserts that the Act's requirement of good-
faith bargaining has not been complied with. In
ruling upon the merit of such an allegation, we
base our finding of either good- or bad-faith
bargaining upon the totality of circumstances re-
flecting the respondent's bargaining frame of
mind."
Indeed, perhaps most telling concerning Respon-
dent's "take-it-or-leave-it" cast of mind was De-
Rosa's response to the question of why the offer was
put forth as one indivisible package. He stated, "I
wanted to put sufficient pressure on the union mem-
bership that they were not going to split out there,
there's the package, there's our offer, do you want
it." It is thus clear that Respondent was unwilling to
reach agreement except on its own terms. We there-
fore find that Respondent failed to bargain in good
faith in violation of Section 8(a)(5) of the Act. Borg-
Warner Controls, a Division of Borg-Warner Corpora-
tion, 198 NLRB 726 (1972), citing Sweeney & Co.,
Inc., 176 NLRB 208 (1969), enfd. in pertinent part
437 F.2d 1127 (5th Cir. 1971).
In disagreement with the Administrative Law
Judge, we also find the statements made by George
Treacy to be violative of Section 8(a)(1) of the Act.9
Treacy's queries concerning employee attendance at
a union meeting meet the standards for unlawful in-
terrogation; and, while the questions were not posed
during the couse of a union campaign, they were
9The Administrative Law Judge found that on two occasions pror to
June 28 Treacy asked employee Escoffery if he was "going to the union
meeting" and if he was "going to vote that day." In addition, the Adminis-
trative Law Judge found that, on June 28, Treacy asked employee Ross "if
he was going to the 'meeting' ": and that, on the day of the union meeting,
in Escoffery's presence, Treacy shook his finger at them and said: "'I'm
going to tell you one thing; I want you to go to the Union and vote yes,' and
'You go to that voting.' 'I mean your vote better be for the Company
plan.'" Ross responded that from nine till five Treacy could tell him what
to do, but after five "you do not tell me what to do." Treacy replied, "rhe
only thing your vote better be is yes." The Administrative Law Judge found
that Escoffery's version of the incident was, "And make sure when you get
over to vote, your vote better be yes" or "Make sure you vote yes for the
company plan." He credited Ross where corroborated by Escoffery.
asked at a time when Respondent was engaging in a
campaign of its own to convince its employees that
they should accept Respondent's campaign of its
own to convince its employees that they should ac-
cept Respondent's offer. This view of the facts is but-
tressed by Treacy's other remark, alleged as violative
of Section 8(a)(1), that the employees had "better"
vote for the company plan. Under these circumstanc-
es, Treacy's interrogation oversteps the bounds of in-
nocent curiosity. With respect to the alleged threat,
unlike the Administrative Law Judge, we do not be-
lieve Treacy's words to be subject to the innocuous
interpretation he assigns them. Treacy's statement
goes beyond mere electioneering and, rather than re-
flecting a solicitous concern for the employee's fu-
ture, appears to be an attempt to control the
employee's actions vis-a-vis contract ratification. This
Respondent clearly may not do. We therefore find
that Respondent violated Section 8(a)(l) of the Act
for the reasons set forth above.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Endo Laboratories, Inc., Garden City, New York, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain in good faith with Divi-
sion 100 of Local 144, Hotel, Hospital and Health
Care Services Union, Service Employees Internation-
al Union, as the certified collective-bargaining repre-
sentative of the employees in the following described
unit:
All production and maintenance employees,
drivers, hi-lo operators, equipment operators,
shipping and receiving employees and ware-
housemen of Respondent Endo Laboratories,
Inc., employed at its Garden City, New York,
plant, exclusive of plant clerical and secretarial
employees, quality and label control inspectors,
office secretarial and clerical employees, profes-
sional employees, salesmen, chemists, laboratory
technicians, guards, watchmen and all supervis-
ors as defined in Section 2(11) of the Act.
(b) Interrogating employees concerning their
membership in, activities on behalf of, and sympathy
with and for the Union.
(c) Threatening employees with reprisals if they
become or remain members of the Union and/or if
they give any assistance to the Union.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
1076
ENDO LABORATORIES, INC.
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Bargain in good faith with the aforesaid
Union, upon its request, as the exclusive representa-
tive of the employees in the above-described appro-
priate bargaining unit and embody in a signed agree-
ment any understanding reached.
(b) Post at its place of business at Garden C ty,
New York, copies of the attached notice marked
"Appendix." ' Copies of said notice, on forms pro-
vided by the Regional Director for Region 29, after
being duly signed by an authorized representative or
representatives, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
'o In the event that this Order is enforced by a judgment of a United
Slates Court of Appeals, 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith
with Division 100 of Local 144, Hotel, Hospital
and Health Care Services Union, Service Em-
ployees International Union, as the certified col-
lective-bargaining representative of our employ-
ees in the following described unit:
All production and maintenance employees,
drivers, hi-lo operators, equipment operators,
shipping and receiving employees and ware-
housemen of Respondent Endo Laboratories,
Inc., employed at its Garden City, New York,
plant, exclusive of plant clerical and secre-
tarial employees, quality and label control in-
spectors, office secretarial and clerical em-
ployees, professional employees, salesmen,
chemists, laboratory technicians, guards,
watchmen and all supervisors as defined in
Section 2(11) of the Act.
WE WILL NOT interrogate an employee con-
cerning his or her union sympathies or activities.
WE W'l.l. NOT threaten our employees with re-
prisals for becoming or remaining members of
the Union or for giving any assistance to the
Union.
Wt: w.l. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them under
Section 7 of the National Labor Relations Act.
WE WILL, upon request, bargain in good faith
with the above-named Union as the exclusive
representatives of our employees in the above-
described bargaining unit and embody in a
signed agreement any understanding reached.
ENDO LABORATORIES. INC
DECISION
STATEMENT OF THE CASE
HurroN S BRANDON. Administrative Law Judge: This
case was heard at Brooklyn, New York, on June 5-7, 1978.
The charge in Case 29-CA-5647 was filed by Division 100
of Local 144, Hotel, Hospital and Health Care Services
Union, Service Employees International Union, herein
called the Union, on May 16, 1977,' while the charge in
Case 29-CA-5735 was filed by the Union on June 30. The
order consolidating cases, complaint, and notice of hearing
on the two cases was issued by the Regional Director for
Region 29 on August 31. The primary issues are whether
Endo Laboratories, Inc., herein called Respondent (a) un-
lawfully interrogated and threatened its employees con-
cerning their union membership or activities in late June in
violation of Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, herein called the Act, and (b) bar-
gained in bad faith with the Union on and after May 5 in
violation of Section 8(a)(5) and (1) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the following:
FINDINGS OF FACT
i. JURISDICTION
Respondent, a Delaware corporation, is engaged in the
manufacture, sale, and distribution of drugs and related
products at a facility and place of business in Garden City,
New York, where during the past year it manufactured,
sold, and distributed products valued in excess of $50,000
directly to points in States other than the State of New
York. Respondent by answer admits, and I find, that it is
I All dates are in 1977 unless otherwise stated.
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Respondent by answer
also admits, and I find, that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union was initially recognized by Respondent in
1968, and since such recognition the parties have negotiat-
ed and executed a number of collective-bargaining agree-
ments covering employees in a unit composed of all pro-
duction and maintenance employees, drivers, hi-lo
operators, equipment operators, shipping and receiving
employees, and warehousemen, exclusive of plant clerical
and secretarial employees, quality and label control inspec-
tors, office secretarial and clerical employees, professional
employees, salesmen, chemists, laboratory technicians,
guards, watchmen and all supervisors as defined in Section
2(11) of the Act. The bargaining relationship between the
parties was not affected by the acquisition of Respondent
as a subsidiary by E. I. du Pont de Nemours & Company
on January 1, 1970, nor by an administrative change in the
Union resulting in a modification of its name in 1976. The
last collective-bargaining agreement executed by the par-
ties was effective from June 30, 1976, to June 30 the follow-
ing year.' The agreement contained union-security and
checkoff provisions. The evidence does not show that the
relationship between the Union and Respondent prior to
the events herein was "stormy," and there appears to have
been no unfair labor practice history on the part of Re-
spondent.
The Union, by letter dated April 4 from its business rep-
resentative, William G. Benson, to Respondent's vice presi-
dent of employee relations, Joseph De Rosa, submitted
twelve proposals for a new collective-bargaining agreement
to succeed the one expiring on June 30. A first negotiating
session on a new collective-bargaining agreement was held
on May 5. Previous thereto, however, on May 3, Respon-
dent through De Rosa met with union representatives in-
cluding Benson to advise the Union of an employee benefit
package which it had decided to implement for its non-
bargaining-unit personnel. The benefit package described
for the Union was equivalent to a package extended to
unrepresented employees of Du Pont at other facilities. It
was the testimony of Benson that De Rosa implied Re-
spondent would offer the same benefit package to the
Union, although De Rosa did not specifically so state. It is
on Respondent's subsequent offer of, and insistence upon,
that benefit "package" as well as Respondent's communi-
cation campaign among its employees concerning negotia-
tions with the Union that the General Counsel relies to
establish Respondent's violation of Section 8(aX5) and (1)
of the Act.
2 J. Exh. I. While the record refers to a It. Exh. 2, no such exhibit was
identified or received in evidence. Accordingly, the record is hereby correct-
ed to show reference to Jt. Exh. I wherever Jt. Exh. 2 is mentioned.
B. The Negotiations
At the first negotiating meeting between the parties on
May 5, Respondent was represented by De Rosa who was
the principal spokesman for Respondent at all the sessions
and by Robert Morris and Dave Bartoldus. The Union was
represented by Benson and an employee committee con-
sisting of Elizabeth Tartaglia, Helen Wojciula, Don Geraci,
Frank Candiano, John Canecky, and William Ross. 3 There
was a brief discussion of the Union's proposals submitted
on April 4. The Union was advised by De Rosa that Re-
spondent wanted to extend the benefit package previously
implemented for nonunit employees to its unit employees.
The Respondent's package was designed to replace certain
provisions of the then-current bargaining agreement per-
taining to the Union's Health and Welfare Fund (art. 22),
which provided health and welfare insurance to unit em-
ployees, and to sick leave (art. 24). It was Respondent's
bargaining technique, as described by De Rosa, to encour-
age the Union not to take verbal exchanges as a firm pro-
posal but rather as a proposal for discussion with firm of-
fers to be made after discussions. Thus, Respondent's
benefit package "proposal" did not constitute an offer.
Benson requested that Respondent put its "proposal" in
writing, and De Rosa agreed to do so.
Respondent in the testimony of De Rosa conceded that
all of the details of its proposed "package" benefit plan
were not available to it, and consequently to the Union, at
the first session or until several months later in October.
The most significant "detail" which was unavailable was
the actual cost of employee major medical coverage under
the Respondent's proposed Blue Cross-Blue Shield plan, a
cost which would be borne by the individual unit employ-
ee. Such costs were approximated by Respondent for pur-
poses of its package proposal.4 The only other detail of
Respondent's proposal which was specifically set forth at
one or another negotiating session prior to Respondent's
final offer, and about which the Union complained, was
the absence of specific benefit rates allowable for various
operations and costs under Respondent's final offer, and
about which the Union complained, was the absence of
specific benefit rates allowable for various operations and
costs under Respondent's proposed hospital-medical insur-
ance coverage. The allowable rates under Respondent's
proposal were described as a percentage of the "usual, cus-
tomary and reasonable" charges.
It also appears that at the first negotiating session De
Rosa advised the Union that it was Respondent's intention
to communicate to all unit employees what transpired at
the negotiating meetings with respect to subjects discussed,
union and management proposals, and supporting ratio-
nale.5 Communications with employees during negotia-
3 The representatives of the respective parties remained essentially the
same throughout negotiations, although Ray Landino replaced Moms on
the management team about the third meeting. Richard K. O'Keefe, an
International representative of the Union and the principal negotiator for
the Union on the parties' 1976-77 contract, attended the June 28 session.
4Such costs were estimated to be $15 per month for employee and family
for major medical coverage and $6 per month for single-employee coverage.
In October the actual costs were ascertained as $9.59 and $3.50, respective-
This is based on Resp. Exh. 9(a), which was identified by De Rosa as
1078
ENDO LABORATORIES, INC.
tions was not new to Respondent, and according to De
Rosa, who was not contradicted in this regard, Respondent
had for a number of years reported to employees on the
status of negotiations with the Union. Furthermore, De
Rosa testified, again without specific contradiction from
General Counsel's witnesses, that in the 1976 negotiations
the Union had voiced objection to Respondent's communi-
cations campaign relative to the length of the summaries of
negotiations read to employees and also the fact that the
summaries were read to employees at special meetings
called by Respondent for the sole purpose of having the
summaries read to the employees by supervisors. Respon-
dent then agreed with the Union in the 1976 negotiations
that the summaries would be shortened and that they
would be read not in specially called meetings but only in
connection with, and as part of, the regular periodic safety
meetings with employees.6 This was the procedure followed
by Respondent with respect to the 1977 negotiations, with
the safety portion of the meeting taking place first. The
evidence establishes that employees who did not wish to
remain at the meetings to hear the reports on negotiations
could leave the meetings and return to their jobs. Accord-
ing to the testimony of union committeemen Tartaglia and
Ross, employees at times did leave the meetings.
De Rosa testified that the supervisors who read their
summaries of the negotiation sessions to employees were
instructed not to depart from such summaries and not to
"ad lib." While employees are allowed to ask questions and
supervisors were allowed to answer such questions, the
supervisors were instructed that if the question went be-
yond the summary the supervisor was to refer the question
to De Rosa for clearing an answer.
The parties' second negotiation session took place on
May 10, and De Rosa listed in writing Respondent's
"package" proposal. The presentation of the proposal was
accompanied by charts and documents explaining and out-
lining benefits under the package.! Benson testified that
the Union's concern with respect to the Respondent's
package had to do primarily with the costs of the "pack-
age" to the individual employee. This proved to be a major
"sticking point" throughout negotiations, according to De
Rosa, for Respondent's proposed disability wage plan" in
the package would replace the then-existing sick leave
plan, under which employees were entitled to 2 weeks of
paid sick leave per year. Employees received pay at the end
of the year for any unused sick leave. Under Respondent's
having been prepared by him to reflect management's version of the negoti-
ating session and for reading to employees. While the General Counsel did
not concede the accuracy of the exhibit as it reflected the events and posi-
tions at the session, no evidence was offered to contradict such accuracy
The exhibit does not purport to be a verbatim record of the session.
" Employee Frank Candiano, presented by the General Counsel. testified
that the frequency of the safety meetings changed from monthly to weekly
"right around the beginning of negotiations." While not clear, I infer from
his testimony as a whole that he was referring to the 1977 negotiations. He
ws not contradicted by Respondent.
Benon's testimony suggesting that employees were compelled to stay
for the 1977 readings of negotiation summaries appears to be in error, in
view of the testimony of employees Ross and Tartaglia.
s Such charts and documents were made available to unit employees
when summaries of the session were read to the employees in the next safety
meeting. It is not disputed that all matenals supplied to the Union in all
negotiating sessions were subsequently made available to the employees.
proposal employees would be paid for sick days and for
"disability" lasting up to 26 weeks but would not receive
payment for any unused sick leave at the end of each year.
The Union also objected to Respondent's major medical
proposal and the related optional accident and health in-
surance proposed by Respondent's package, because both
plans required contributions by employees, while the ex-
isting insurance coverage under the Union's health and
welfare fund was fully paid by Respondent.
At the third negotiating session, on May 12, the parties
discussed the Union's proposals, including, inter alia, a
proposed 25-percent wage increase, medical coverage for
retirees, increased vacation time, and an increase in paid
sick days from 10 to 15. Benson testified that the Union at
this meeting objected to the adequacy of detail on the
schedule of medical payments under the Blue Cross-Blue
Shield plan in Respondent's package proposal. Moreover,
Benson objected to Respondent's communications with the
employees regarding Respondent's package, since the
Union did not have all the details on the plan at that time.
While Respondent's summary of the May 12 meeting does
not reflect this union objection, it does reflect a stated in-
tention by De Rosa that management intended to commu-
nicate summaries on negotiations to employees. In the ab-
sence of contradiction, and because Benson on May 16
filed the charge in Case 29-CA-5647 complaining of
Respondent's communications with employees, a date
prior to the next bargaining session, I credit Benson's testi-
mony that his objection was voiced on May 12.
According to Respondent's summary of the next meet-
ing between the parties, May 18, the Union did object to
Respondent's communications with the employees and ex-
pressed an intent to press unfair labor practice charges
based on the matter. De Rosa responded that management
believed that employees had a right and a need to know
what was transpiring during negotiations. Again in the ses-
sion on May 19, the Union objected to the communica-
tions. This time the objection was more formal and was
contained in a written document signed by Benson and the
employee committee.9 The document stated in part:
You have placed this committee at a distinct disad-
vantage by prematurely releasing incomplete informa-
tion which refers to the captioned [Company Health &
Welfare Proposals]. We the committee cannot address
ourselves to this issue without all the pertinent data.
Therefore, we suggest that we defer any further discus-
sion of the captioned until such time that the Compa-
ny has all the necessary information available for this
committee.
Therefore, we suggest that you respond to the other
employee pr6posals so that when we do have meetings
with the employees, we can give them a complete com-
prehensive and honest report on the progress or lack
thereof in these negotiations.t °
9 G.C. Exh. 8.
10 De Rosa noted the Union's objection in his summary of the May 19
meeting and attached to the summary a cop) of the Union's written request
No management comment on the matter was reflected in the summarN,
Resp. Exh
9
(e)
1079
DECISIONS OF NA TONAL LABOR RELATIONS BOARD
Respondent and the Union met in eight more negotia-
tion sessions after May 19 and prior to expiration of the
old collective-bargaining agreement on June 30.11 De Rosa
continued to prepare summaries of the sessions, which
were read to employees on each Friday following the re-
spective sessions. The General Counsel, while not conced-
ing the accuracy of the summaries, all of which were sub-
mitted in evidence by Respondent, failed to dispute any
statement or position reflected in the summaries. More-
over, the General Counsel and the Union did not dispute
that any attachments to the summaries made available to
employees were identical to material supplied to the Union
in the preceding bargaining sessions.
In only one instance was there any evidence submitted
by the General Counsel to indicate that the employees
were advised of a proposal or position of Respondent
which was not first communicated to the Union. Thus,
union committeeman and employee Frank Candiano, in
somewhat vague and ambiguous testimony, related that at
an employee meeting sometime in June conducted by Sup-
ervisor Mike Piombino, at which Piombino read one of De
Rosa's negotiation summaries, a question arose as to who
would determine eligibility for "sick time" under Respon-
dent's disability plan. Contrary to what Candiano recalled
as De Rosa's position at negotiations that eligibility would
be determined by the employee's supervisor and doctor,
Piombino told the employees that a committee would be
set up to determine such eligibility. De Rosa in his testi-
mony conceded that in response to an eligibility. De Rosa
in his testimony conceded that in response to an employee
question on the point a supervisor was advised to tell the
employee that the abuses of Respondent's disability pay
system would be handled by the employee attendance
committee. This point had not previously been raised in
negotiations, but Respondent continued in this position in
subsequent negotiations. In effect, Respondent guaranteed
not to withhold disability pay under its plan.
Notwithstanding that Respondent had not submitted all
the details of its "package" to the Union by May 18 or 19,
Benson testified that the Union rejected it because Respon-
dent had precluded the Union from agreeing to certain
parts of Respondent's proposal which were acceptable to
it. De Rosa, according to Benson, then stated he did not
believe that the committee represented the employees or
truly reflected the feeling of the people, and suggested that
Respondent's plan should be presented to the employees
by the Union without comment.
The Union did call an employee meeting for May 25. De
Rosa, in a letter to employees dated May 23, noted the
scheduled union meeting and referred to past negotiations
with the Union and the additional negotiating meeting to
be held before Respondent made a specific contract offer.
The letter urged employees to attend the union meeting but
cautioned them against the possibility that a strike authori-
zation vote at that time might preclude employees from
having another vote prior to a strike. De Rosa concluded:
In my opinion the proper time for a vote is after
Management has made their final offer to the Union.
" The dates of the meetings were May 24 and 26 and June 1, 9, 15, 21, 23.
and 28.
This, obviously, is a matter of great importance to you
and your family.
I urge you to consider this matter very carefully and
then voice your true convictions.
Benson's uncontradicted and credible testimony estab-
lishes that a vote was taken at the union meeting and that
based upon employees' knowledge of Respondent's pro-
posals up to that time such proposals were rejected. Never-
theless, the parties continued to negotiate, and Respondent
continued to adhere to its "package." All of the details of
Respondent's package with the exception of Respondent's
wage proposal were submitted to the Union by June 1. On
June 23, Respondent submitted its "final and best" offer to
the Union. This offer was composed of its benefit "pack-
age," including wages.
Respondent, at a session with the Union on June 28,
again made clear that its "offer" was a package. According
to Benson, who again was uncontradicted, Union Repre-
sentative O'Keefe remarked at the meeting that in es-
sence what Respondent was telling the employees and the
Union was that it "is either take it [Respondent's offer] or
go to hell," to which De Rosa replied, "You are reading me
loud and clear."
Respondent's "offer" was submitted to the employees by
the Union at a meeting on June 28. In anticipation of the
meeting, De Rosa sent a letter to each employee dated
June 24 enclosing a copy of Respondent's offer. The letter
described the "offer" as a good one with improvements in
benefits and a good wage increase. Further, the letter stat-
ed:
The offer . . . is a total package, including wages;
therefore, if any part of the offer is rejected by the
membership, the Union Committee will reject all of
the offer because partial acceptance is not acceptable
to management.
The letter urged employees to attend the meeting and "vote
your true conviction in the interest of yourself and your
family." Finally, the letter noted that if the Union ceased
providing health and welfare benefits beginning July I Re-
spondent would provide such benefits itself.'2
The Respondent's "offer" was rejected by the employ-
ees. The parties met again on July 6, but there were no
changes in positions and no agreements reached. The par-
ties met on subsequent occasions but had not reached
agreement on a new contract prior to the hearing herein.
Respondent has continued its contributions to the Union's
Health and Welfare Fund and has not implemented its
benefits "offer." In addition, on September 8, Respondent,
with agreement of the Union, separated its wage proposal
from its prior "offer" and implemented it.'3
12 This statement was based upon the Union's contention, stated in nego-
tiations, that if Respondent's offer were accepted the Union would cut off
welfare fund coverage immediately. De Rosa, acknowledging that a change
in benefits plans might cause the Union difficulty in changing premium
commitments to their insurance carrier, advised the Union Respondent was
willing to continue making full contributions to the Welfare Fund for the
remainder of the year if Respondent's package offer were accepted. Resp.
Exh. 9(k).
3 Resp. Exh.
9
(p). According to the uncontradicted testimony of De
Rosa, the Union through O'Keefe had earlier indicated in late June that
Respondent's wage offer was acceptable to the Union.
1080
ENDO LABORATORIES, INC.
C. The Alleged Independent 8(a)(1) Violations
The complaint alleges that Respondent engaged in cer-
tain other conduct designed to undermine the Union and
to destroy its majority status among its employees. These
allegations are based upon statements attributed to George
Treacy, an animal care supervisor for Respondent, around
June 28. In support of these allegations, the General Coun-
sel presented two witnesses, Brian Escoffery and William
Ross, both employees of Respondent under Treacy's super-
vision.
Escoffery testified that a couple of days before the June
28 union meeting Treacy came to him where he was work-
ing and asked Escoffery if he was going to the union meet-
ing. Escoffery replied that he was, and Treacy stated that
when Escoffery got over there he should vote for the "com-
pany plan" because "it's better than the Union plan." Es-
coffery responded in effect that no one could tell him how
to vote, and he walked away. The following day, still ac-
cording to Escoffery, Treacy approached him in the lunch-
room and asked him if he was going to vote that day. Es-
coffery replied that maybe he would go and Treacy stated
that he should make sure that when he went over there he
should vote for the company plan.
William Ross also testified that Treacy asked him on
June 28 if he was going to the "meeting." Ross stated that
he was. Subsequently, on the same day, as Ross was pre-
paring to leave work and go to the union meeting, Treacy
upbraided Ross for wearing his street clothes and combing
his hair in the hallway. Then, as Ross and Brian Escoffery
were leaving the building, Treacy shook his finger at them
and said: "I'm going to tell you one thing; I want you to go
to the Union and vote yes," and "You go to that voting."
"I mean your vote better be for the Company plan." Ross
responded that from nine till five Treacy could tell him
what to do, but after five "you do not tell me what to do."
Tre acy replied "the only thing your vote better be is
yes."
Treacy, called by Respondent, admitted that he had
asked Escoffery on one occasion whether he was going to
the union meeting and asked one other employee a similar
question, but he denied asking Ross such a question.
Moreover, he denied telling Escoffery or Ross that they
had "better" vote for Respondent's benefit plan. Treacy's
version of his encounter with Ross in the late afternoon of
June 28 differs substantially from that of Ross. Treacy tes-
tified that he reproached Ross for going into the animal
room (not the hallway) in his street clothes and combing
his hair. Ross became upset, told Treacy to get off his back
and threatened Treacy that his (Treacy's job) was not
worth getting killed over.
Escoffery impressed me as a sincere witness. Ross was
less impressive and appeared to be more excitable. I would
credit Ross only where corroborated by Escoffery. I credit
both over Treacy's denials that the told them that they had
is While he did not testify concerning this incident in his original tesli-
mony. Escoffery was recalled by the General Counsel and confirmed his
presence dunng the above incident His version of Treacy's comment vas.
"And make sure when you gel over to vote. your vote better be ,es" or
"Make sure you vote yes for the company plan."
better vote for the company plan. Further, the statement
attributed to Treacy would have been completely in line
with Respondent's efforts to persuade employees that its
benefit plan was to their advantage and worthy of their
support.
D. The Contentions of the Parties
It is the General Counsel's contention with respect to the
8(aIX) allegations that Treacy's inquiries of employees
whether they were going to the union meeting constituted
interrogation and that the statement that the employees
"better" vote for the company plan constituted a threat of
discharge or reprisal. These acts, according to the General
Counsel, were in effort to undermine the Union and de-
stroy its majority status.
With respect to the 8(aX5) allegation, the General Coun-
sel argues that the totality of Respondent's conduct in bar-
gaining evidences its bad-faith bargaining in violation of
Section 8(a)(5). While it urges the "totality of conduct"
premise, it is nevertheless clear that the General Counsel is
relying primarily on Respondent's making one final offer
to the Union on an indivisible "take-it-or-leave-it" basis
and on its persistent communications directly with employ-
ees despite the Union's objections.
Respondent argues, on the other hand, that even if Trea-
cy made the statements attributed to him they did not
amount to 8(a(l) violations and certainly did not reflect
an objective "to undermine the Union and destroy its ma-
jority status." Respondent points out that the statements
were made in an atmosphere where employees were free to
speak out against management positions and in fact did so.
Moreover, there was no actual intimidation of Ross or Es-
coffery, as revealed by Ross' reply to Treacy's admonition
to vote for the management plan, i.e., that Treacy could
not tell him what to do.
As to the 8(a)(5) allegation, Respondent contends that
while its "package" proposal as originally presented was
largely unchanged through negotiations Respondent did
move in negotiations to meet specific objections to the pro-
posals to make them more acceptable. Further, the fact
that the proposal was a package did not establish its ille-
gality, since, as De Rosa testified, there was an interrela-
tionship between the Respondent's benefits plans. Respon-
dent also implies in its brief that its insistence on its
proposed package was justified by an admitted effort to
standardize the benefit programs for unit and nonunit em-
ployees and also because of Respondent's inability to ob-
tain requested information from the Union regarding the
Union's health and welfare fund.
In regard to Respondent's request for information, De
Rosa testified that in 1976 he had first become concerned
about the administration of the Union's health and welfare
fund because of the increased contributions to the fund
requested by the Union in the negotiations that year. After
agreeing to the increases, De Rosa observed a health and
welfare fund report posted on the Union's bulletin board at
Respondent's facility in the spring of 1977 which indicated
to De Rosa that Respondent was contributing approxi-
mately 15 percent of the fund's income but that its employ-
ees represented only about 4 or 5 percent of the employees
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covered by the fund, thus raising questions as to whether
Respondent's employees were putting in more than they
were getting out. Because contributions to the fund, wholly
paid by Respondent, were based on a percentage of earn-
ings, a wage increase sought by the Union in the 1977 ne-
gotiations would increase the contributions even more. Ac-
cordingly, De Rosa requested the Union to supply it with
cost information about the fund in the 1977 negotiations
but did not receive that information in May or June.' 5 De
Rosa was supplied a copy, however, of an out-of-date
Health & Welfare Group Insurance Plan 16 in negotiations
in late May or early June but was advised at that time by
the Union that the insurance carrier had changed but the new
benefits were substantially the same. This plan reflected
benefits but not costs, and while Respondent knew the extent
of its contributions to the fund it did not know the costs of
benefits received by its employees. That Respondent had
some difficulty in comparing benefits under its proposed plan
with benefits employees were receiving under the health and
welfare fund is reflected in De Rosa's negotiation summary
of the June 9 meeting, where it was pointed out that at the
June 2 meeting "management and the Union were having
difficulty in comparing the current benefits of Union mem-
bers with Management's proposed benefits." 17
Relying on the Board's decision in The Procter & Gamble
Manufacturing Company, 160 NLRB 334 (1966), Respon-
dent asserts that its communications to its employees re-
garding negotiations was lawful. Pointing to De Rosa's tes-
timony, Respondent contends that supervisors were
instructed not to "ad lib" comments regarding events at
negotiations and also claims that none of the information
given to employees went beyond that given the Union.
Moreover, the Respondent asserts the employees were not
even required to listen to its summaries of negotiations and
were free to leave the meetings when the summaries were
read.
E. Conclusions
It is clear that Respondent through Treacy did ask em-
ployees if they were going to the June 28 meeting, but such
a question does not ipso facto establish "interrogation" vio-
lative of Section 8(aXl) of the Act. Ross and Escoffery, the
questioned employees, were unit employees covered by a
collective-bargaining agreement containing a union-securi-
ty provision. Their union membership must be presumed.' s
Moreover, Ross was a member of the Union's negotiating
committee. The union meeting scheduled for June 28 was a
well-known fact and had been referred to in Respondent's
'5 Respondent filed a charge with the Board against the Union based
upon its failure to supply the information requested. The record does not
reflect the date of such filing, but in any event it appears that the charge was
dismissed by the regional office of the Board.
16 Resp. Exh. 5,
P Resp. Exh. 9(i). This is not disputed by the General Counsel.
The Board has indicated some reluctance in classifying as unlawful
questions asked of employees whose union membership is well known or
who have openly supported a union. LarandLeisurelies, Inc., 213 NLRB 197
(1974); Stumpf Motor Company, Inc., 208 NLRB 431 (1974): B. F Goodrich
Footwear Company., 201 NLRB 353 (1973).
June 24 letter to employees. l9 The expected employee con-
sideration of Respondent's contract offer at that meeting
was a matter of concern to both management and the
Union. Treacy's questions did not appear to be designed to
ascertain whether or not the employees supported manage-
ment or the Union on the contract issue itself. Under these
circumstances it is difficult to perceive how Treacy's ques-
tions "tended" to interfere with, coerce, or restrain the em-
ployees asked. While actual coercion is not the test of a
violation, there appears to have been none in any event.
Accordingly, I find that Treacy's questions of Ross and
Escoffery did not constitute a violation of Section 8(aXl)
of the Act.
I am also unconvinced that Treacy's admonition to Ross
and Escoffery that they "better" vote for the company plan
somhow amounted to a "threat" of retaliation or reprisal. I
am mindful that the Board has held that a supervisor's
statement to employees that they "better vote no" in a
coming Board election constitutes a "threat that they
would suffer if they voted for the Union" and is thus viola-
tive of Section 8(a)(1). Matlock Truck Body and Trailer
Corp., 191 NLRB 407 (1971), enfd. 454 F.2d 1172 (6th Cir.
1972). See also Glendale Dodge, JD-(SF)-125-77 (unpub-
lished). The premise for such a finding appears to be that
the use of the word "better" in instructions to vote a cer-
tain way in the context of a union no-union vote implies
that some reprisal or some adverse action will be taken if
the employees fail to do as the supervisor advises. That
premise is not found where the issue to be voted upon does
not involve a choise of union representation. Rather, the
use of the words "better vote yes," when used in connec-
tion with a vote on acceptance of a management proposal,
is subject to the interpretation that an affirmative vote on
such acceptance would be to the greater benefit of the em-
ployees and thus "better" for them. Consequences of a
contrary vote would flow not from supervisory retaliation
but from employee rejection of whatever benefits might be
obtainable under the proposal. After all, it is not unlawful
for an employer to urge employees to accept or ratify an
offer submitted to union negotiators. N.LR.B. v. Movie
Star, Inc., Movie Star of Poplarville, Inc., 361 F.2d 346 (5th
Cir. 1966). In these circumstances, and in the absence of
other evidence of union animus which might impart a more
sinister overtone to Treacy's remarks, I find that Treacy's
statement to Escoffery and Ross did not constitute a threat
of reprisal and thus did not violate Section 8(aX1) of the
Act.
Turning to the 8(aX5) allegation, the Act imposes "a mu-
tual duty upon the parties to confer in good faith with a
desire to reach agreement." N.LRB. v. Insurance Agents'
International Union, AFL-CIO [Prudential Insurance Co.],
361 U.S. 477, 488 (1960). However, Section 8(d) of the Act
specifically provides that the duty to bargain does not com-
pel either party to negotiations to agree to a proposal or
require the making of a concession. However, "[Rligid
adherence to proposals, which are predictably unaccept-
able to the employee representative, may be considered in
proper circumstances as evidencing a predetermination not
to reach agreement, or a desire to produce a stalemate as a
19G.C. Exh. 4
1082
ENDO LABORATORIES, INC.
means of frustrating bargaining and undermining the stat-
utory representative." The Procter & Gamble Manufacturing
Company, 160 NLRB at 338. Adoption by a party of a
"take-it-or-leave-it" stance in negotiations negates the exis-
tence of a desire to reach ultimate agreement that collective
bargaining presupposes. N.LR.B. v. Insurance Agents' In-
ternational Union, supra; Federal Mogul Corporation, 212
NLRB 950 (1974); General Electric Company, 150 NLRB
192, 193 (1964), enfd. 418 F.2d 736 (2d Cir. 1969). But
refusal to recede from an announced position does not nec-
essarily constitute evidence of lack of good faith. W. L
McKnight, d/b/a Webster Outdoor Advertising Company,
170 NLRB 1395 (1968). The Act does impose upon parties
to negotiations the obligation to make some reasonable ef-
fort in some direction to compose differences. Kayser-Roth
Hosiery Corpany, Inc. v. N.LR.B., 430 F.2d 701 (6th Cir.
1970). In determining whether good-faith bargaining obli-
gations have been met, the Board may examine and con-
sider proposals put forth and positions taken by the re-
spective parties. Kayser-Roth Hosiery Company v. N. L. R. B.,
supra, Federal Mogul Corporation, supra.
In the instant case, the parties were in dispute from the
beginning of negotiations regarding Respondent's proposal
to substitute its "benefits" package for the Union's health
and welfare provision and the previously allowed "sick
days." From the beginning it was clear that Respondent
sought agreement with the Union on its "package" as a
package. Yet there was movement in Respondent, as
shown through its efforts to meet the Union's objections to
the package. Thus, Respondent agreed that its proposed
"disability pay" plan would not become effective until the
end of the year, fully one-half of the proposed contract's
life, and the old sick leave plan would remain in effect until
that time, allowing employees to collect pay for unused
sick leave for that year. Also, to meet the Union's concern
about arbitrary management decisions on eligibility deter-
minations for disability pay under Respondent's proposal,
Respondent agreed to in effect guarantee disability pay for
those persons calling in sick. Respondent also moved to-
ward agreement on a supper allowance, which it included
in its final offer to the Union, and likewise moved toward
agreement with the Union on a job-transfer procedure
which was not to be a part of the final contract.
Indeed, the Union found much in Respondent's final
"package offer" which was acceptable to it. Benson testi-
fied that Respondent's offer of another week of vacation
was acceptable, as was Respondent's wage offer. But it is
clear that insistence upon its benefit "package" and its re-
quirement that it must be accepted in whole precluded
agreement.
While the issue of Respondent's good-faith bargaining is
a close one, I am not persuaded that on the record as a
whole Respondent's conduct breached its statutory obliga-
tions. It is true that Respondent began negotiations with a
"package" of benefits which it did not depart from in al-
most 2 months of bargaining. While the Respondent
through its package sought to substitute certain benefits for
those the employees already enjoyed, the proposed benefits
cannot be termed regressive or destructive. An examina-
tion of the "package" reveals that ultimate benefits to em-
ployees provided therein were potentially greater, and sub-
stantially so, than the employees' existing benefits. Thus,
while Respondent's proposal could be perceived by em-
ployees and the Union as costly in terms of loss of their
existing right to 2 weeks' pay yearly for unused sick leave,
the 26 weeks of disability pay available under
Respondent's plan presented a potential for a significantly
greater benefit to employees in the event of serious and
extended illness. Too, although major medical insurance
coverage under Respondent's plan represented a cost to
employees, features of the plan could be viewed as justify-
ing such costs. Accordingly, those portions of
Respondent's plan which the Union and the employees
found most objectionable were not so unreasonable as to
cast doubt upon Respondent's good faith in offering
them.
Respondent's admitted reasons for its proposed package
do not reflect its bad faith. I am persuaded that
Respondent's primary motivation in presenting its "pack-
age" was its admitted desire to standardize benefits among
its employees, represented or not. Indeed, the timing of its
proposal to the Union immediately after implementing the
same plan or "package" for nonunit employees affirms that
purpose. However, in the absence of evidence of union ani-
mus and in view of the past generally amicable bargaining
relationship between the parties, I do not view the effort to
"standardize" as an effort to meld the distinction between
unit and nonunit employees in order to undermine the
Union.
The reasonableness of Respondent's efforts to institute
its "package" insofar as it relates to insurance benefits and
coverages is supported by Respondent's inability to ascer-
tain from the Union the extent of employee benfits and
their costs under the existing health and welfare fund.
While I am unable to conclude that Respondent's propos-
als were a direct result of its inability to secure health and
welfare fund information from the Union, I am not able to
discount De Rosa's uncontradicted and credible testimony
that it was a concern of Respondent. Respondent had pro-
posed its "package" before it sought information from the
Union in the 1977 negotiations. It did, however, seek such
information from the Union in those negotiations as it had
in the 1976 negotiations when it nevertheless agreed to con-
tinue its contributions to the fund. The impact the provid-
ing of such information would have had on the 1977 nego-
tations is left to speculation, but the absence of such
information at least detracts from a conclusion of bad faith
which might otherwise be drawn from Respondent's con-
tinued adherence to its proposed benefits.
Notwithstanding Respondent's adherence to its original
"package" proposal throughout negotiations, and even
though Respondent on June 28 through De Rosa indicated
the employees and the Union "could take it or go to hell,"
it is to be noted that Respondent had moved to make the
"package" palatable. Respondent offered to keep most of
the old benefits and coverages in effect for up to one-half
the life of the new contract. In addition, Respondent also
moved to agreement with the Union's proposals and re-
sponded to them, explaining its responses and positions.
Such conduct does not preclude the existence of
Respondent's bad faith but, on the other hand, tends to
support its good faith.
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's package, as De Rosa testified, had "pluses
and minuses" for the Union and the employees. While the
Union early voiced its rejection of the "package," its initial
rejections were made prior to presentation and consider-
ation of all the details of the plan. Moreover, it was not
until Respondent made its wage offer, which it tied into the
"package," that the acceptability of the "package" could
be tested. The wage offer, which the Union found by itself
to be acceptable, could conceivably have turned the tide in
favor of the "package."
Whatever may be said of Respondent's package offer
and its admitted effort through tying the package to its
wage and vacation offers to induce the employees to accept
it, it is clear that the Act does not dictate particular bar-
gaining techniques, tactics, or strategy. The proscriptions
of Section 8(aX5) are breached only where a party's tech-
niques, tactics, or strategy reveal the absence of a sincere
desire or serious effort to resolve differences and reach a
common ground. Here, both the Union and Respondent
were adamant in their respective positions regarding
Respondent's benefits plan early in negotiations. Each par-
ty had logical and reasonable arguments to support its po-
sition. The failure of either to concede, under the circum-
stances, does not evince the absence of good-faith
bargaining on the part of either. No inference of bad faith
may be drawn solely from a party's failure to retreat from
an originally declared position. Bethlehem Steel Company
(Shipbuilding Division), 133 NLRB 1347 (1961).
Respondent's communication campaign among the em-
ployees also does not force a conclusion of bad faith on the
part of Respondent here. As the Board said in Procter &
Gamble 160 NLRB at 340:
As a matter of settled law, Section 8(a)(5) does not,
on a per se basis, preclude an employer from commu-
nicating, in noncoercive terms, with employees during
collective-bargaining negotiations. The fact that an
employer chooses to inform employees of the status of
negotiations, or of proposals previously made to the
Union, or of its version of a breakdown in negotia-
tions will not alone establish a failure to bargain in
good faith. It is plain, however that a noncoercive
communication campaign may be utilized as an effec-
tive instrument for bypassing the Union and engaging
in direct dealing with the employees.
It is clear in the instant case that Respondent's communi-
cations to the employees, both through the reading of the
negotiation summaries to employees by supervisors and
through its letters to employees, were of a noncoercive na-
ture. Further, examination of the summaries and letters
reveal that they were substantially factual. The summaries
have not been shown by the General Counsel to be inaccu-
rate insofar as they reflect the positions of the parties or the
events at negotiating sessions. Except for the one occasion
when Respondent, in response to an employee question,
indicated that issues of eligibility under Respondent's pro-
posed disability pay plan would be resolved by the employ-
ee attendance committee, no information was submitted to
the employees which was not previously submitted to the
Union in prior negotiations. No new benefit offers were
extended in the communications. There was no direct deal-
ing with the employees or other attempts to bargain with
them. Such communications therefore appear to fall within
the purview of free speech under Section 8(c) of the Act.20
See Stokely-Van Camp, Inc., 186 NLRB 440 (1970).
Respondent's communications campaign here is unlike
the one considered by the Board in The General Athletic
Products Company, 227 NLRB 1565 (1977). There the com-
munications disparaged the Union and served to cast
doubt in the minds of the membership as to the bona fides
of the efforts of union representatives in advancing the in-
terests of its membership. The same was true in Safeway
Trails, Inc., 233 NLRB 1078 (1977), where the Board found
the employer to have utilized its communication campaign
to drive a wedge between the Union's chosen negotiator
and the union membership. That is not the case here. Here
the communications did not disparage, discredit, or ridi-
cule the Union or its position. Nor were the communica-
tions inflammatory or argumentative. While the communi-
cations may have served to enhance or make attractive
Respondent's proposals, it does not appear that they were
designed to undermine the Union.
To a certain extent, any communication regarding nego-
tiations between an employer and employees may be
viewed as tending to undermine a collective-bargaining
representative. However, the interests of free speech recog-
nized in Section 8(e) must prevail where the possibility of
such communications undermining the collective-bargain-
ing representative is, at best, remote.
Accordingly, under the circumstances here, including
the fact that Respondent had carried on such communica-
tions campaigns during previous negotiations with union
objections only as to the Respondent's holding of special
employee meetings for such communications, I find that
Respondent's communications here did not violate Section
8(a)(5) in themselves or otherwise reveal its bad faith in
negotiations.
Unquestionably, the conduct of Respondent under con-
sideration here has parallels with the conduct of the em-
ployer considered in General Electric, supra. Thus, in both
cases employers adhered to one "proposal," stuck to one
offer, and engaged in an extensive communications cam-
paign with employees. Nevertheless, the Board made it
clear in finding a breach of Section 8(aX5) in General Elec-
tric that its decision rested upon consideration of the totali-
ty of the employer's conduct there involved. That conduct
included a failure to furnish relevant information to the
Union, as well as attempts to deal separately with locals
and to bypass the national bargaining representative, ele-
ments not present in the instant case. Moreover, the com-
munications campaign the employer there conducted clear-
ly disparaged and discredited the Union 21 and, worse, had
the effect of placing the employer in a position where it
20 Sec 8(c) provides:
The expressing of any views, argument, or opinion. or the dissemina-
tion thereof. whether in written. printed, graphic, or visual form, shall
not constitute or be evidence of any unfair labor practice under any of
the provisions of this Act, if such expression contains no threat of
reprisal or force or promise of benefit.
21 Indeed, as the Trial Examiner found in General Electric, the communi-
cations campaign constituted a "virulent attack" on the Union's top leader-
ship General Electric, supra at 276.
1084
ENDO LABORATORIES, INC.
"could not give unfettered consideration to the merits of
any proposals the Union might offer." In the instant case,
Respondent's communications do not appear to have put it
in a position from which it could not retreat. Indeed. it did
retreat later, when it agreed to split out the wage increase
from the "package and implement it.
Considering the conduct of Respondent here as a whole,
I am not persuaded that the preponderance of evidence
establishes that Respondent violated Section 8(a)(5) of the
Act, as alleged. Respondent's conduct, particularly its pro-
posal and adherence to a "package" and its one "final and
best" offer, may be said to have tended to stretch the statu-
tory fabric to the breaking point, but I am unable to find
that the cloth was thereby torn. Accordingly, I shall recom-
mend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent Endo Laboratories, Inc., is an employer
engaged in commerce within meaning of Section 2(2), (6).
and (7) of the Act.
2. The Union, Division 100 of Local 144, Hotel, Hospi-
tal and Health Care Services Union, Service Employees
International Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a(1) of the Act
through interrogation of, or threats to, employees on or
about June 28. 1977.
4. Respondent did not violate Section 8(aX5) and (1) of
the Act through its bargaining with the Union, as alleged in
the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
1085