Hudson Chemical Company

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 152 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hudson Chemical Company and Local 50, Service
Employees International Union, AFL-CIO.
Cases 14-CA-14585 and 14-CA-14420
September 23, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 1, 1981, Administrative Law Judge Ben-
jamin Schlesinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a memorandum in support.
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
memorandum in support and has decided to affirm
the rulings, findings, and conclusions of the Admin-
istrative Law Judge, to modify his remedy,' and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hudson Chemi-
cal Company, St. Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.2
I Any backpay due is to be computed in the manner prescribed by the
Board in F W. Woolworth Company, 90 NLRB 289 (1950).
2 Member Fanning and Member Jenkins, for the reasons set forth in
their partial dissent in Drug Package Company, Inc., 228 NLRB 108
(1977), would usually begin a respondent's backpay obligation from the
date of each unfair labor practice striker's unconditional offer to return to
work. However, inasmuch as Drug Package Company represents the cur-
rent Board law on this issue, they consider themselves institutionally
bound by the remedy given by the Board majority in that decision. Into-
Rotro, Incorporated, 252 NLRB 764 (1980).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse or fail to bargain col-
lectively and in good faith concerning rates of
pay, wages, hours, and other terms and condi-
258 NLRB No. 9
tions of employment with Local 50, Service
Employees International Union, AFL-CIO, as
the exclusive representative of our employees
in the following unit appropriate for the pur-
poses of collective bargaining:
All regular full-time and regular part-time
employees, including all maintenance em-
ployees and maintenance technicians, em-
ployed by Hudson Chemical Company in
the Greater St. Louis, Missouri, Metropoli-
tan area, excluding sales personnel, office
clerical and professional employees, guards
and supervisors as defined in the the Act.
WE WILL NOT refuse or fail to meet with
the Union at reasonable times and engage in
collective bargaining.
WE WILL NOT refuse or fail to provide,
upon request by the Union, information neces-
sary and relevant to the Union's performance
of its function as the exclusive collective-bar-
gaining representative of our employees in the
unit set forth above, including the names, ad-
dresses, and seniority dates of all our employ-
ees in the collective-bargaining unit.
WE WILL NOT refuse or fail to bargain in
good faith with the Union by unilaterally ceas-
ing payments on behalf of our employees to
health and welfare and pension funds, discon-
tinuing furnishing to the Union monthly lists
setting forth all our employees in the collec-
tive-bargaining unit set forth above to whom
wages were paid, and instituting wage in-
creases or changing any other term and condi-
tion of employment without notifying, consult-
ing with, and bargaining to a new agreement
or to impasse with the Union as exclusive rep-
resentative of our employees in the appropriate
unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL, upon request, bargain collectively
and in good faith with the Union as the exclu-
sive collective-bargaining representative of our
employees in the unit set forth above with re-
spect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such under-
standing in a signed agreement.
WE WILL meet with the Union at reasonable
times and engage in collective bargaining.
WE WILI. provide to the Union all informa-
tion requested by the Union which is relevant
152
HUDSON CHEMICAL COMPANY
and necessary to the Union's performance of
its function as exclusive collective-bargaining
representative of our employees in the unit set
forth above, including providing immediately
to the Union the names, addresses, and senior-
ity dates of all our employees in that bargain-
ing unit.
WE WILL make whole our employees in the
appropriate bargaining unit by (1) making con-
tributions on behalf of our employees in the
bargaining unit set forth above to the Contract
Cleaners Building Service Employees' Welfare
Trust and to the Contract Cleaners Service
Employees' Pension Trust, as described in the
addenda to the collective-bargaining agree-
ment which was entered into by us and the
Union on or about December 29, 1977, and
which was accepted by the Trustees of the
Trusts on or about January 26, 1978, for all
periods subsequent to December 31, 1980, in
each and every instance in which we have
failed to make such payments on behalf of any
of our employees in the bargaining unit, and
(2) continuing such payments until such time
as we negotiate in good faith with the Union
to a new agreement or to an impasse. This
shall include reimbursing our employees for
contributions they themselves may have made
for the maintenance of their coverage for
benefits after we unlawfully ceased contribut-
ing, for any premiums they may have paid to
third-party insurance companies for coverage
theretofore provided by the Trusts, and for
any medical bills employees have paid to
health care providers that the Trusts would
have covered.
WE WILL furnish to the Union monthly lists
setting forth all our employees in the collec-
tive-bargaining unit set forth above to whom
wages were paid, and continue furnishing same
until such time as we negotiate in good faith
with the Union to an agreement or to an im-
passe.
WE WILL, upon request of the Union, re-
scind the unilateral increases of wages granted
to our employees.
WE WILL offer to reinstate all unfair labor
practice strikers to their former jobs, without
prejudice to their seniority or other rights and
privileges, dismissing persons hired on or after
January 7, 1981, if necessary, to make room
for them, or, if such jobs no longer exist, to
substantially equivalent positions, within 5
days of their unconditional offer to return to
work, and WE WILL make such strikers whole
for any loss of earnings as a result of our refus-
al to reinstate them within 5 days by payment
to each striker of a sum of money equal to that
each would have earned as wages during the
period commencing 5 days after the date on
which each striker unconditionally offers to
return to work to the date of our offer of rein-
statement, less any net earnings during such
period, with interest.
HUDSON CHEMICAL COMPANY
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHESINGER, Administrative Law Judge:
This proceeding was heard before me in St. Louis, Mis-
souri, on February 24-25, 1980, based on an amended
complaint' alleging that Respondent Hudson Chemical
Company violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, 28 U.S.C. §151, et seq.,
by engaging in dilatory scheduling of negotiating sessions
and surface bargaining with Local 50, Service Employ-
ees International Union, AFL-CIO (the Union), and re-
fusing to give the Union certain information necessary
for the Union to carry out its collective-bargaining obli-
gations, thus prompting the Union to engage in an unfair
labor practice strike. Respondent denied that it violated
the Act in any manner.
Upon consideration of the entire record herein, includ-
ing my observation of the witnesses, and upon review of
the briefs submitted by the General Counsel and Re-
spondent, I hereby render the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Respondent, a corporation duly authorized to do busi-
ness under the laws of the State of Missouri, has its prin-
cipal office and place of business in the County of St.
Louis, State of Missouri, and is engaged in providing
janitorial, cleaning, and maintenance services as a clean-
ing contractor. During the year ending December 31,
1980, a representative period, Respondent performed
services valued in excess of $50,000, of which in excess
of $50,000 of services were provided to Brown Shoe
Company, a subsidiary of Brown Group, Inc., and to
other enterprises located in the State of Missouri, each of
which enterprise, during the year 1980, sold and caused
to be shipped from their facilities located in the State of
Missouri goods and products valued in excess of $50,000
directly to points located outside the State of Missouri. I
conclude, as Respondent admits, that it is and has been at
all times material herein an employer engaged in com-
The relevant docket entries are as follows: The charge in Case 14-
CA 14420 was iled by the Union on November 7 1980, and a complaint
was issued on December 19, 1980. Thereafter, a new charge as filed in
Case 14-CA-14585 on January 12. 1981, and an order consolidating cases
and an amended complaint was issued on January 29. 1981 which %was
further amended on February 3 and 12. 1981. and at the hearing
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
I also find and conclude, as Respondent admits, that
the Union is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALI.EGEI) UNFAIR I.ABOR PRACTICES
A. The Facts
Until the events at issue herein, Respondent and the
Union had contractual relations for 30 or more years, the
last agreement being effective from January 1, 1978, to
December 31, 1980. During the terms of the past five
agreements, for about 15 years, Respondent was a
member of the Contract Cleaners Association (the Asso-
ciation), a multiemployer association of cleaning contrac-
tors which engaged in bargaining on an industrywide
basis. 2 In the summer of 1980, Charles L. Hudson, Jr.,
Respondent's president, although also the president of
the Association and one of its negotiators for a number
of years, withdrew from the Association the right to bar-
gain on Respondent's behalf.
As a consequence, the Union wrote to Respondent on
October 13, 1980, that it desired to commence negotia-
tions and would soon forward a list of its demands, after
which a date would be selected for the beginning of ne-
gotiations. On October 20, the Union wrote to Respond-
ent setting forth its proposals and the dates that it would
be available to meet, as well as requesting the following
information: "[N]ames, addresses, hours, seniority dates,
and wage rates of all employees within the bargaining
unit we represent." On October 29, Hudson notified the
Union that he would be available to meet on November
20 and 28 and December 19, 1980.
This letter crossed in the mails with the Union's letter
and mailgram of October 30 making a second request for
meeting dates and the information. Respondent replied to
the Union's requests by letter dated November 7, and the
Union replied to Respondent's October 29 letter, com-
plaining of Respondent's late dates for the commence-
ment of negotiations and renewing its request for infor-
mation. In Respondent's November 7 letter, Hudson
wrote:
Requests [sic] for lists of names, hours, seniority
dates, wage rates of all employees in the bargaining
unit are presently sent to you each month, as they
have been, without interruption for the last twenty-
five to thirty years. Any other information needed
must be developed from your records since we do
not have the computer capability to furnish same.
You have equal access through your records.
The parties' first session was held on November 20.
Union Business Representative William K. Hunt, rather
than pursuing the Union's demands which were con-
tained in its October 20 letter, presented Hudson with a
2 Although the Association bargained on behalf of its members, during
some of the negotiations, it was agreed that each member had the right to
sign an agreement based on the fruits of the Association's bargaining, or
to reject the agreement.
copy of the then-agreed-to Association contract, some of
the provisions of which, upon questioning by Hudson,
Hunt explained. Negotiations adjourned to November 28
to give Hudson an opportunity to consider the Union's
proposals. Then, Hunt and Hudson again met, and posi-
tions reversed. Hudson came prepared with his own con-
tract, containing, inter alia, provisions for an 8-percent
wage increase for all current employees and for a I-year
contract, as opposed to 2 years in Hunt's proposal. Hunt
then reviewed the contract, section by section, indicating
his agreement with certain provisions and his designation
of "hold" on those which he would or could not agree
upon, which included wages and Hudson's revision limit-
ing the scope of the Union's jurisdiction. 3 Hunt then re-
viewed his own proposals and noted the omission in the
contract of numerous of the Union's demands, which in-
cluded clauses concerning union security, checkoff, the
pension fund, health and welfare fund, and grievance ar-
bitration (the five items). Hudson made no reply to
Hunt's questions about why those clauses were omitted.
The parties again met on December 11 pursuant to
their agreement at their earlier negotiating session.
Hudson submitted a proposal on payments for travel,
which was omitted in his earlier proposals but was in-
cluded in the Association contract, but he rejected the
remainder of the Association contract and refused to dis-
cuss further his rejection of the five items. Hunt stated
his belief that he and Hudson were probably at an im-
passe, and the two agreed to call in a Federal mediator,
who would set a date for the next meeting. On Decem-
ber 17, the parties met at the Federal Mediation and
Conciliation Service (FMCS) with Mediator La Martina,
who requested Hunt and Hudson to state their positions
on the items on which they were at impasse. They did
so, and the mediator then requested to meet separately
with both parties. Apparently, nothing was accomplished
except that the parties substantially agreed on the items
on which they were at impasse 4 and Hudson withdrew
his previously submitted limitation on the scope of the
appropriate unit and agreed to the Union's proposal. The
next negotiating session, held on December 24, accom-
plished little. The parties were still separated both phys-
ically and in their proposals. The mediator told Hunt
that Hudson was unwilling to move on any item and that
Hudson's proposals, with the addition of a new provi-
a The appropriate unit is as follows:
All regular full-time and regular part-time employees, including all
maintenance employees and maintenance technicians, employed by
Hudson Chemical Company in the Greater St. Louis, Missouri, Met-
ropolitan area, excluding sales personnel, office clerical and profes-
sional employees, guards and supervisors as defined in the Act.
Respondent's initial proposal was to limit the jurisdiction to the "City of
St. Louis." which would have carved out the contract's coverage numer-
ous of its employees because at least half of Respondent's jobs are per-
formed outside the city. Although Respondent denied that the Union is
the exclusive bargaining agent for its employees, Board law presumes the
existence of a continued majority status during and beyond the term of
the collective-bargaining agreement. I so conclude. The Saloon. Inc., 247
NLRB 1105 (1980).
4 The Union withdrew numerous of its demands in agreeing upon the
items on which they were at impasse.
154
HUDSON CHEMICAL COMPANY
sion,5 constituted Respondent's final offer. Hunt stated
that he would take the offer to the union membership,
but that he could not in good conscience recommend it.
On December 27, the members rejected Respondent's
proposals and authorized a strike; but Hunt, still hoping
for an agreement, mailgrammed Hudson on December 29
that, even though Respondent's offer had been unani-
mously rejected, he still wanted to meet on December 30
or 31 to resolve the outstanding issues. 6 Hunt replied on
December 30 that he could not meet until after the first
week of January 1981 and that: "My position at this time
has not changed since December." Hunt called Hudson
on January 5 and 6, but without success; and the Union
struck Respondent on January 7, a strike which was still
continuing at the time of the hearing.
Two more unfruitful negotiating sessions were held at
FMCS. On January 21, 1981, the parties were still kept
apart by Mediator La Martina, who, after conferring
with Hudson for about 15 to 20 minutes, reported to
Hunt that Hudson "did not want to move." On February
11, La Martina, after talking with Hudson, reported that
there was still no progress and suggested that, if the
union negotiators desired to meet with Hudson, they
could. A short meeting was held, ending with the flaring
of tempers; and nothing was accomplished.
B. Discussion
In all surface bargaining cases, it must first be recog-
nized that the obligation to bargain collectively does not
compel a party to make any concessions or to agree to
any proposal. N.L.R.B. v. American National Insurance
Co., 343 U.S. 395 (1952). On the other hand, that princi-
ple does not permit a party to enter into negotiations
with no intention of reaching an agreement and to close
its mind to any argument which may be presented by the
other side. Often, the line between "hard bargaining,"
permissible under the Act, and surface bargaining, imper-
missible under Section 8(a)(5), is a thin one, indeed.
There are, however, some indicia of illegal conduct
which the Board has developed over the years, one of
which is whether the employer adopted a purposeful
strategy to ensure that bargaining would be futile or
would fail. N.L.R.B. v. Herman Sausage Company, Inc.,
275 F.2d 229 (5th Cir. 1960); Cable Vision, Inc., 249
NLRB 412 (1980).
Most significant in demonstrating Respondent's lack of
good-faith bargaining are the events of the session of No-
vember 28, at which time the Union offered to eliminate
the pension plan, clearly a major concession. Hudson, in-
stead of immediately accepting that offer and, perhaps,
although not necessarily, making a concession of his
own, did his part to obstruct negotiations. Thus, he
called to Hunt's attention that the Association contract
contained a "most-favored nations" clause which would
require that, if the Union gave in to one of Respondent's
demands, to wit, the removal of the pension plan, then
the Union would also have to give up the pension plan
s Respondent proposed that the wages provided in its wage proposal
"shall be the minimum wage rates paid, and [Respondent] reserves the
right to increase those rates at its option based upon merit."
6 Hunt also confirmed this mailgram by another mailgram sent on De-
cember 30, adding January 2-5, 1981, s available dates
in the Association contract, a fact which Hunt should
consider. Hunt did, and withdrew his concession; and the
parties were once again stalemated as to all items at issue
just a few minutes before.
Hudson thus embarked upon a strategy to make bar-
gaining futile and an agreement impossible. Hudson pro-
posed a series of regressive deletions from prior con-
tracts which he knew, or had good reason to suspect,
that the Union would not accept in their entirety. When
he successfully forced the Union into accepting the with-
drawal of the pension plan provision, he quickly pointed
out that the Union could not do so without risking the
loss of its pension plan from many of its other employers.
As a result, Hudson made an agreement on his own
terms, indeed all of his terms, impossible for the Union
to accept.7
Moreover, there is in this proceeding one credibility
resolution which is of critical importance. Hunt was
steadfast in his denial that Hudson had ever delineated
the reasons for any of his proposals to delete the items.
On the other hand, Hudson testified, in answer to leading
questions by Respondent's counsel, that at each bargain-
ing session he explained to Hunt in detail the reasons for
his proposals. Although there were some points during
his testimony at which I was dissatisfied with Hunt's
credibility, feeling that he was overly evasive, obstinate,
and fencing with counsel, I nonetheless credit him in
light of Hudson's notes of the bargaining sessions and my
view that Hudson was less credible than Hunt.8 Hud-
son's notes, many of which were read by him during his
testimony rather than his testifying to his independent
recollection, do not reflect that Hudson ever made any
statements in the presence of Hunt to support Respond-
ent's position.9
As a result, I find that Hudson's failure to define, ex-
plain, and advocate his position and, instead, his attempt
to thrust his deletions upon the Union on a "take it or
leave it" basis constitute additional indicia of Respond-
ent's lack of a sincere attempt to conduct meaningful ne-
gotiations. Hudson's conduct prohibited any attempt to
find a common ground upon which he and the Union
could resolve their differences. Atlas Metal Parts Co..
Inc., 252 NLRB 205 (1980). Hudson never explained, as
he did at the hearing, that he was concerned that Re-
spondent's contributions to the funds were wasted money
7 The contributions to the two plans totaled 18 cents per hour Re-
spondent's wage proposal, hich was higher than that in the Association
contract, was not 18 cents higher
s Among other things. I find Hudson's explanation that he never ex-
pected a strike to be improbable in light of his letter to employees of De-
cember 26. a day before the union membership voted, which was clearly
in contemplation of a strike; and his denials that the Union made any
concessions during negotiations and that Respondent refused to accept
certified mail from the Union were wholly inaccurate. The General
Counsel also contends that Hudson misstated the truth when he tstified
that wages had been agreed upon with the Union Although Hunt had
put wages on "hold." Hudson's belief that wages were not at issue as
substantially correct. although I also conclude that Hunt truthfully testi-
fied to his impression that the issue of wages had not been full! resolved
pending Respondent's movement on the five items.
! There are in the notes reflections of some arguments. but all were
stated to Mediator La Martina in private conferences. The record is
almost barren of evidence that the mediator relayed Hudson's arguments
to Hunt. assuming that such fact would be reletant
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of the high turnover of its employees. He never
attempted to reach some kind of common ground to pre-
serve the coverage of the funds for those employees who
might well utilize the funds' benefits. He never attempted
to prove to the Union that its alleged misuse or overuse
of the arbitration provision was causing him untold grief.
Rather, Hudson abandoned the "give and take" of col-
lective bargaining and replaced it solely with an offer to
the Union to adopt his proposals; and that is not bargain-
ing under Section 8(a)(5). Winn-Dixie Stores, Inc., 243
NLRB 972 (1979).
There are additional indicia of illegal conduct which
the Board has relied on in determining whether surface
bargaining has occurred. Did the employer believe in
good faith that its "proposal had the slightest chance of
acceptance by a self-respecting union, or even that it
might advance the negotiations by affording a basis of
discussion"? N.L.R.B. v. Reed & Prince Manufacturing
Company, 205 F.2d 131, 139 (Ist Cir. 1953), cert. denied
346 U.S. 887. Were the justifications for the proposals
advanced by the employer reasonable? Ibid. Did the em-
ployer advance proposals which are regressive to those
previously advanced? N.L.R.B. v. Pacific Grinding Wheel
Co., Inc., 572 F.2d 1343 (9th Cir. 1978).
Respondent's principal contention is that these indicia
have no place in the law; that the Board has no right to
interfere with the substantive terms of a party's propos-
als; and that a party has complete discretion never to
bend and never to relinquish its original proposals. That,
of course, was somewhat put to rest in General Electric
Company, 150 NLRB 192 (1964), enfd. 418 F.2d 736 (2d
Cir. 1969), cert. denied 397 U.S. 965 (1970). But even the
decisions relied upon by Respondent, some of which
have expressed reservations about Reed & Prince, support
the view that the Board, after finding that an employer's
attitude was inconsistent with its duty to seek an agree-
ment, may bolster such finding by considering the con-
tent of bargaining proposals as part of its review when
making a determination as to the good faith of parties ne-
gotiating a contract. Seattle-First National Bank v.
N.L.R.B., 638 F.2d 1221, 1226 (9th Cir. 1981); N.L.R.B.
v. Tomco Communications, Inc., 567 F.2d 871, 883-884
(9th Cir. 1978). Thus, the Ninth Circuit has deemed an
employer's economic position and the past level of em-
ployee benefits as meaningful in considering whether
there has been surface bargaining.
I am cognizant of Hudson's rationale for attempting to
remove certain of the five items-at least, as expressed
by him at the hearing. But the justification for certain of
his proposals falls far short of reasonable, made with the
intent of fostering an agreement. For example, the union-
security and checkoff provisions had been in Respond-
ent's agreements since the late 1950's. Hudson conceded
that, in various years, he had the right to reject Associ-
ation-negotiated agreements (which Hudson negotiated).
Never, until 1980, did Hudson express his personal an-
tipathy to union-security provisions, and why that
became important in 1980 can be explained as part and
parcel of Respondent's plan to ensure that no agreement
would be reached.' Respondent's attempt to limit the
scope of the Union's appropriate unit was totally unex-
plained. Beyerl Chevrolet, Inc., 221 NLRB 710 (1975).
Similarly, Hudson's explanation of how he attempted to
promote movement by the Union is unavailing. His pro-
posal at the December 24 meeting that Respondent could
unilaterally grant merit increases was merely a ruse. That
proposal was actually not meaningful; no cost could be
attached to it and the Union had no control to ensure
that increases would be granted. Rather, if, as Hudson
maintained, wages were not at issue in the negotiations
after the meeting of November 28, it could hardly be
said that Hudson's approach was an attempt to remove
any impasse. Finally, Respondent proposed, in essence,
to remove from all employees hired on and after January
1, 1981, holdiay pay, vacation pay, and the wage rates of
the agreement. No reason therefor was given. "
From all the circumstances, I conclude that Respond-
ent has engaged in surface bargaining in violation of Sec-
tion 8(a)(5) and (1) of the Act. This decision should not
be construed to hold that Respondent may not, after bar-
gaining, hold firm to its position. That will depend on
what takes place at the bargaining table and whether Re-
spondent demonstrates a true intention of reaching an
agreement. Nor is this Decision intended to prohibit Re-
spondent, feeling as it did that it had the upper hand in
negotiations in 1980 and that the Union had no economic
strength to support its own demands, from attempting to
take away from the Union what Respondent formerly
gave to the Union. That is the very nature of and is im-
plicit in "hard bargaining" which the Board has an-
nounced is valid under Section 8(a)(5). The conduct of
Respondent, however, up to the time of the hearing
herein exhibited a refusal to budge from its original de-
mands and was clearly intended to ensure that no agree-
ment would be reached.' 2 When coupled with Respond-
ent's refusal to make known to the Union the addresses
of its employees, Respondent also significantly weakened
the chances of the Union obtaining support for its posi-
tion should the Union feel it necessary to strike, as it ulti-
mately did.
Regarding Respondent's failure to supply information
to the Union, Respondent argues that, during the term of
the subsisting collective-bargaining agreements, it month-
ly made checkoff deductions from the salaries of its em-
ployees and forwarded them to the Union, together with
a computerized list of its current employees then on the
payroll. As a result, it contends that it furnished the
'o Hudson explained that the union-security clause was "not that im-
portant a matter." It may be that, had Hudson bargained in good faith, he
would have been willing to give up his opposition to the inclusion of that
provision and that he was opposing it as a "throwaway" to gain conces-
sions from the Union. In the present posture of the record herein, Hud-
son's explanation is unavailing.
I Respondent made many more regressive proposals, such as expand-
ing the probationary period of an employee from 31 to 180 days.
12 Respondent contends that, if it were unyielding and stubborn, such
conduct should he viewed in the total context of the Union's bargaining
posture, which was equally stubborn. However, the Union gave up far
more than ,,as given to it. Inter alia, it withdrew its demands for a non-
discrimination clause, a 31-day probation period, a provision to enable it
to honor other picket lines, companywide seniority, and the right to in-
spect Respondent's records.
156
HUDSON CHEMICAL COMPANY
names of its employees, and the Union's requests therefor
were wholly satisfied. There are a number of difficulties
with Respondent's argument, not the least of which are
that there was a high turnover of employees'3 and that
the lists would not reflect the names of employees who
were sick, on vacation, laid off, or otherwise not on the
payroll because they were not paid that month. Further-
more, a list of names without addresses did the Union
little good, because Respondent's 150-180 employees
were employed at 50 separate locations and the Union
was never advised of their whereabouts. Magma Copper
Company, San Manuel Division, 208 NLRB 329 (1974);
Georgetown Associates d/b/a Georgetown Holiday Inn, 235
NLRB 485 (1978); Helca Mining Company, 248 NLRB
1341, 1343, fn. 10 (1980). Finally, there is no question
that Respondent did not supply the seniority dates of any
of its employees, and I am satisfied that the Union's need
for this information-i.e., to compute eligibility for vaca-
tions and pensions-was amply demonstrated. 4
I conclude that the failure to supply the requested in-
formation and to bargain in good faith were violations of
Section 8(a)(5) and (1), and that the Union's strike on
January 7, 1981, was directly attributable to Respond-
ent's illegal conduct. As such, the strike was an unfair
labor practice strike. General Drivers and Helpers Union.
Local 662, etc. [Rice Lake Creamery Co.] v. N.L.R.B., 302
F.2d 908 (D.C. Cir. 1962), cert. denied 371 U.S. 827.
Furthermore, inasmuch as the impasse in bargaining re-
sulted from Respondent's refusal to bargain and thus was
not "legally cognizable," Respondent had no right to
change the employees' terms and conditions of employ-
ment. Industrial Union of Marine and Shipbuilding Work-
ers of America, AFL-CIO [Bethlehem Steel Co. (Shipbuild-
ing Division)] v. N.L.R.B., 320 F.2d 615, 621 (3d Cir.
1963), cert. denied 375 U.S. 984 (1964); Neon Sign Corpo-
ration, 229 NLRB 861, 863 (1977). I find, however, that
it did so-consistent with its final offer, it raised employ-
ees' wage rates and ceased making contributions to the
Union's pension and health and welfare funds and ceased
delivering to the union monthly computer printouts per-
taining to its employees. Those actions constitute viola-
tions of Section 8(a)(5) and (1) of the Act.
After the expiration of the 1978-80 agreement, Re-
spondent also ceased checking off dues, which the Gen-
eral Counsel also claims violates Section 8(a)(5). I dis-
agree. Bethlehem Steel Company (Shipbuilding Division),
136 NLRB 1500 (1962), enfd. sub nom. International
Union of Marine and Shipbuilding Workers of America,
AFL-CIO v. N.L.R.B., supra; Heart of America Meat
Dealers Association, et al., 168 NLRB 834 (1967); Ameri-
can Oil Company, 164 NLRB 36 (1967). Contrary to the
General Counsel's contentions, I find that Gordon L.
Rayner and Frank H. Clark, d/b/a Bay Area Sealers, 251
NLRB 89 (1980), did not overrule these decisions. The
reference therein to an employer's contractual obliga-
13 Respondent delivered to the Union a list of names and addresses of
its employees, effective as of May 1980. Because of the high turnover of
employees, this list could hardly be up to date.
14 Although the Union also requested the employees' hours and wage
rates, neither the complaint nor the General Counsel's brief alleges that
Respondent's refusal to supply said information violates the Act. I there-
fore do not reach this issue.
tions ceasing at the end of a contract's life only as to
terms governing the employer-union relationship in-
cludes those matters not touching upon an employee's
terms and conditions of employment. In any event, Sec-
tion 302(c)(4) of the Labor Management Relations Act
provides that the life of a checkoff authorization "shall
not be irrevocable for a period of more than one year, or
beyond the termination date of the applicable collective
agreement, whichever occurs sooner." Because the
agreement expired, so did the checkoff authorization.
Finally, the General Counsel also contends that Re-
spondent was guilty of dilatory tactics in delaying the
first negotiating session from shortly after October 20 to
November 20, 1980, and refusing to comply with the
Union's request of December 27 to meet at an early date,
contenting itself to meet only on January 21, 1981. Sec-
tion 8(d) of the Act imposes a mutual obligation on ne-
gotiating parties "to meet at reasonable times." Section
204 of the Labor Management Relations Act, in order
"to prevent or minimize interruptions in the free flow of
commerce," calls on employers and unions alike to "ar-
range promptly" for conferences and to endeavor "expe-
ditiously" to bring about a resolution of disputes over
contract terms in which they may be engaged. The duty
to do so is part of the obligation to bargain.
Hudson's explanation of the first delay was that he was
engaged in a change of ownership of Respondent and
was drawing up leases for the rental of Respondent's
former place of business. Otherwise, he "had some other
things that I had to get done at the time because negoti-
ating was not my only function with the company." But,
as the Board has stated, "Labor relations are urgent mat-
ters too." Insulating Fabricators, Inc., Southern Division,
144 NLRB 1325, 1328-29 (1963), enfd. 338 F.2d 1002
(4th Cir. 1964), quoting "M" System, Inc., Mobile Home
Division Mid-States Corporation, 129 NLRB 527, 549
(1960). Hudson's explanation fails to display the degree
of diligence that proper performance of his bargaining
obligations required. It matters not that from November
20 through the end of 1980 Hudson apparently made
himself available with some degree of frequency. The
fact remains that for almost a I-month period in 1980,
and for 3 weeks from late 1980 to January 21, 1981, Re-
spondent abandoned Section 8(d) of the Act. In light of
the circumstances, particularly the accompanying surface
bargaining, I conclude that Respondent has refused to
meet at reasonable times, as required by the Act, and has
violated Section 8(a)(5) and (1) of the Act.
All of the unfair labor practices found herein have a
close, intimate, and substantial effect on interstate com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I shall recommend
that it cease and desist therefrom, post an appropriate
notice, and take certain affirmative action designed to ef-
fectuate the purposes and policies of the Act, including.
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon request, to bargain in good faith with the Union
and to rescind the unilateral wage increases.
I shall also recommend reinstatement of unfair labor
practice strikers upon their unconditional offer to return
to work and the dismissal of persons hired on or after
January 7, 1981, if that becomes necessary. N.L.R.B. v.
W. C. McQuaide, Inc., 552 F.2d 519, 528-529 (3d Cir.
1977); Newport News Shipbuilding and Dry Dock Compa-
ny, 236 NLRB 1637 (1968), enfd. 602 F.2d 73 (4th Cir.
1979). Reinstatement shall mean reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority and other rights and privileges.
Such unfair labor practice strikers are to be made
whole for any loss of earnings they may suffer as a result
of Respondent's refusal, if any, to reinstate them in a
timely fashion by paying to each of them a sum of
money equal to that which each would have earned as
wages during the period commencing 5 days after the
date on which each unconditionally offers to return to
work to the date of Respondent's offer of reinstatement,
less any net earnings during such period, with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).'I If Re-
spondent has already rejected, or hereafter rejects,
unduly delays, or ignores any unconditional offer by its
employees to return to work, or attaches unlawful condi-
tions to its offer of reinstatement, the 5-day period for of-
fering reinstatement as provided in the recommended
remedy serves no useful purpose, and backpay will com-
mence as of the date an unconditional offer to return to
work is tendered by its employees.
Upon the above findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 1s
The Respondent, Hudson Chemical Company, St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Refusing or failing to bargain collectively and in
good faith concerning rates of pay, wages, hours, and
other terms and conditions of employment with Local
50, Service Employees International Union, AFL-CIO,
as the exclusive representative of its employees in the
following unit appropriate for the purposes of collective
bargaining:
All regular full-time and regular part-time employ-
ees, including all maintenance employees and main-
tenance technicians, employed by Hudson Chemical
Company in the Greater St. Louis, Missouri, Metro-
politan area, excluding sales personnel, office cleri-
i' See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
'6 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
cal and professional employees, guards and supervi-
sors as defined in the Act.
(b) Refusing or failing to meet with the Union at rea-
sonable times and engage in collective bargaining.
(c) Refusing or failing to provide, upon request by the
Union, information necessary and relevant to the Union's
performance of its function as the exclusive collective-
bargaining representative of Respondent's employees in
the unit set forth above, including the names, addresses
and seniority dates of all employees in the collective-bar-
gaining unit.
(d) Refusing or failing to bargain in good faith with
the Union by unilaterally ceasing payments on behalf of
its employees to health and welfare and pension funds,
discontinuing furnishing to the Union monthly lists set-
ting forth all employees in the collective-bargaining unit
set forth above to whom wages were paid, and institut-
ing wage increases or changing any other term and con-
dition of employment without notifying, consulting with,
and bargaining to a new agreement or to impasse with
the Union as the exclusive representative of its employ-
ees in the appropriate unit.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, bargain collectively and in good
faith with the Union as the exclusive collective-bargain-
ing representative of its employees in the unit set forth
above with respect to rates of pay, wages, hours, and
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Meet with the Union at reasonable times and
engage in collective bargaining.
(c) Provide to the Union all information requested by
the Union which is relevant and necessary to the Union's
performance of its function as exclusive collective-bar-
gaining representative of Respondent's employees in the
unit set forth above, including providing to the Union
immediately the names, addresses, and seniority dates of
all employees in that bargaining unit.
(d) Make whole the employees in the appropriate bar-
gaining unit by (1) making contributions on behalf of Re-
spondent's employees in the bargaining unit set forth
above to the Contract Cleaners Building Service Em-
ployees' welfare trust and to the Contract Cleaners Serv-
ice employees' pension trust, as described in the addenda
to the collective-bargaining agreement which was en-
tered into by Respondent and the Union on or about De-
cember 29, 1977, and which was accepted by the trustees
of the trusts on or about January 29, 1978, for all periods
subsequent to December 31, 1981, in each and every in-
stance in which Respondent has failed to make such pay-
ments on behalf of any of its employees in the bargaining
unit; and (2) continuing such payments until such time as
Respondent negotiates in good faith with the Union to a
new agreement or to an impasse. This shall include reim-
bursing employees for contributions they themselves may
have made for the maintenance of their coverage for
158
HUDSON CHEMICAL COMPANY
benefits after Respondent unlawfully ceased contributing,
for any premiums they may have paid to third-party in-
surance companies for coverage heretofore provided by
the trusts, and for any medical bills employees have paid
to health care providers that the trusts would have cov-
ered.
(e) Furnish to the Union monthly lists setting forth all
employees in the collective-bargaining unit set forth
above to whom wages were paid, and continue furnish-
ing same until such time as Respondent negotiates in
good faith with the Union to a new agreement or to an
impasse.
(f) Upon request of the Union, rescind the unilateral
increases of wages granted to its employees.
(g) Upon their unconditional offer to return to work,
reinstate the unfair labor practice strikers, dismissing, if
necessary, any replacements hired in their place, and
make them whole for any loss of earnings that they may
have incurred, in the manner set forth in "The Remedy"
section of this Decision.
(h) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Post at Respondent's St. Louis County, Missouri,
place of business, and at every location at which any of
Respondent's employees in the bargaining unit set forth
above receives his or her pay, or, in the event such post-
ings are not practicable, post at Respondent's St. Louis
County, Missouri, place of business and mail or deliver
to each employee in the bargaining unit, copies of the at-
tached notice marked "Appendix." 17 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted at Respondent's St. Louis County, Missouri, place
of business, as well as otherwise mailed or delivered to
employees as set forth herein. Reasonable steps shall be
taken by Respondent to insure that all such notices
posted are not altered, defaced, or covered by any other
material.
(j) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act other
than those found herein.
I; In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
159