Koenig Iron Works, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1987

282 N.L.R.B. 717 (N.L.R.B. 1987)

KOENIG IRON WORKS
Koenig Iron Works, Inc. and ' Shopmen's Local
Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO. Cases 29-CA-11793, 29-CA-
11859, and 29-CA-12135
14 January 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, STEPHENS, AND
CRACRAFT
On 12 June 1986 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 only to the extent consistent with this
Decision and Order.3
The judge relied in part on the factual findings he made in Roman
Iron Works, 282 NLRB 725, issued today, and attached his decision in
that case as App. B to his decision in this case . [Omitted from publica.
tion.]
' In adopting the judge's conclusion that the Respondent violated Sec.
8(aX5) and (1) by changing employees' wage rates unilaterally, we em-
phasize that, contrary to the, Respondent' s contention , the Board 's Order
in Koenig Iron Works, 276 NLRB 811 (1 '985), did not invite the Respond-
ent to increase wages unilaterally at times other than during negotiations.
While the Order in that case specifically prohibited the Respondent only
from unilaterally granting wage increases "during the course of collective
bargaining negotiations," the Order was carefully tailored to the violation
found-unilateral wage increases granted during the course of collective
bargaining . The Board neither stated nor implied that the Respondent
was free to grant unilateral wage increases at any other time.
In adopting the judge's conclusion that the wage increases the Re-
spondent gave exceeded the amounts offered to the Union, we do not
rely on his finding that the Respondent 's 21 September 1983 offer to in-
crease annually employee wages by a minimum of 75 cents per hour was
"not on the table" when negotiations resumed in 1985 . The judge based
his finding on the Board's finding in Koenig Iron Works, supra, that the
Respondent failed to furnish information the Union requested concerning
that offer before implementing it 6 October 1983. The judge in this case
found, "An employer cannot be said to be making an offer at the same
time that it is refusing to discuss the so-called offer with the Union " Al-
though the Respondent failed to furnish the information before imple-
menting the increases 6 October 1983, the Respondent had offered to ex-
plain it in a meeting held 24 October 1983. Koenig, supra. Thus, contrary
to the judge's conclusion, the Respondent had in fact offered to provide
the information by the time negotiations resumed in 1985. Nevertheless,
we agree with the judge that the parties on 14 March 1985 reviewed the
Respondent's earlier offer, under which the Respondent proposed to pay
increases of 40 cents per hour in April and 30 cents in October each year,
not its 21 September 1983 offer. Also, the Respondent increased some
employees' wages in excess of both the 40 cents and 30 cents per hour
offered before 21 September 1983 and the 75 cents per hour offered on
and after 21 September.
In adopting the judge's conclusion that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally paying its employees bonuses, we observe
that the Respondent never proposed to the Union that it would pay em-
ployees bonuses. The judge's statement that it had, in sec. II,C, par. 3, of
the, attached decision, is incorrect.
I We shall amend Conclusion of Law 4 to conform to our findings and
conclusions . We shall also amend Conclusion of Law 4 to delete its refer-
717
This ease evolves from a long history of litiga-
tion stemming from the parties' efforts to negotiate
a successor to their last collective-bargaining agree-
ment, which expired in 1975.4 On 30 January 1976
the Respondent entered into a contract with Team-
sters Local 810 although, Shopmen's Local Union
No. 455 then represented a majority of the Re-
spondent's employees. The Board on 30 September
1980 found that the Respondent's agreement with
Teamsters Local 810 violated Section 8(a)(5) and
(1) of the Act and ordered the Respondent to abro-
gate it and bargain instead with Local 455.5 On 7
June 1982 the United States Court of Appeals for
the Second Circuit enforced' the Board's Order6
and the parties thereafter again commenced bar-,
gaining. That effort engendered further unfair labor
practice proceedings and, in Koenig Iron Works,
276 NLRB 811, the Board found the Respondent
violated Section 8(a)(5) and (1) by unilaterally im-
plementing certain wage increases, but had not en-
gaged in unlawful surface bargaining as alleged.
The parties' bargaining shortly before the Board's
decision in that case issued prompted the unfair
labor practice charges litigated'in this proceeding.
This case has issued simultaneously with Roman
Iron Works, 282 NLRB 725, because the Respond-
ents' agents in this case and in Roman are' the same,
and because the parties bargained simultaneously
regarding similar proposals. At the General Coun-
sel's request, and with the Respondents' consent,
the judge consolidated the hearings in both cases,
except that he reopened the hearing for additional
evidence, pertaining only to this case pursuant to
additional complaint allegations.
We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) by changing em-
ployees' wage rates, and granting employees bo-
nuses, without affording the Union an opportunity
to bargain about the changes and bonuses;, by im-
plementing wage increases in excess of the amounts
offered to the Union; by withdrawing recognition
of, and refusing ' to bargain with, the Union as the
exclusive, representative of the Respondent's, em-
ployees; and by failing and refusing to furnish cer-
tain relevant and necessary information the Union
requested. We disagree, however, that the Re-
spondent violated Section 8(a)(5) and (1) by "refus-
ing . .. to recognize that a collective bargaining
ence to changes in hours and working conditions . There is no contention,
and no evidence, that the Respondent changed anything other than the
employees ' wages. We shall issue a new Order and notice to conform to
the amended Conclusion of Law
4 See Koenig Iron Works, supra at 812, for a more complete historical
account.
5 Independent Assn. of Steel Fabricators, 252 NLRB 922 (1980), enfd.
sub nom. NLRB Y. Koenig Iron Works, 681 F.2d 130 (2d Cir, 1982).
6 NLRB Y. Koenig Iron Works, supra, 681 F.2d 130.
282 NLRB No. 100
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement had been arrived at" and "by refusing to
execute a collective bargaining contract embodying
the terms of the agreement reached between Re-
spondent and the Union."
The negotiations that led to the most recent
Board decision in this case began 18 August 1982
and ceased sometime after 21 September 1983. The
Respondent made its last offer to the Union 28 July
1983 and finalized the offer 21 September. That
offer was, as the Board found in the earlier case,7
complete. The final offer provided that the con-
tract would terminate October 1988.8
Shortly before the Board's decision issued in the
most recent case, the parties reinstituted the negoti-
ations and met three times in 1985 in an attempt to
reach agreement.
According to Respondent Counsel Stanley Isra-
el's uncontradicted testimony, Israel told Union
President William Colavito in their first negotiating
session, held 8 February 1985, that "under no cir-
cumstances would the companies consider the prior
expiration date." He further told Colavito, "If we
were to use the old expiration dates we would
have short term contracts." He said, "That's out of
the question, and we're going to negotiate new
term contracts from [this] point going forward."9
At the parties' next meeting, held 14 March
1985, Colavito "went over every point" with Israel
in the Respondent's outstanding offer and present-
ed a union counteroffer, which called for the con-
tract to expire 30 June 1987. Colavito could not
recall, however, whether he reviewed at that meet-
ing the proposed contractual termination dates of
the Respondent's 1983 offer. The judge found he
had not.
Israel opened the, parties' final meeting, held 29
March 1985, by announcing that he no longer be-
lieved the Respondent had a duty to bargain with
the Union. Colavito initially protested, and then
left the room to confer in private with Union
Counsel Belle Harper. Harper wrote out a letter to
Israel for the Respondent and Roman which Cola-
vito signed and handed to Israel. The letter stated:
This is to advise you that Shopmen's Local
Union #455 IABSOIW AFL-CIO, hereby ac-
cepts the last contractual offer made by, each
of the above named employers [Koenig and
Roman].
7 276 NLRB at 817.
8 The judge inadvertently stated the date as 31 December 1988 in the
remedy section of his decision.
The judge found that Israel.
. . informed Colavito that his clients were dissatisfied with the
prospect of short-term contracts resulting from the lapse of time
since they had last negotiated, and that therefore new contract terms
would have to be negotiated.
Roman Iron Works, supra, 282 NLRB 725, 729.
Accordingly, we now have a collective bar-
gaining agreement.
There is no dispute that the Respondent refused
to enter into a contract with the Union and the
record shows that the Respondent explicitly re-
fused to do so by letter dated 29 March.
A collective-bargaining agreement arises only
after a meeting of the minds on all material
terms .1 ° Both the Respondent and the Union in
this case regarded the duration of any new agree-
ment as a material term. Thus, both the Respond-
ent's finalized offer and the Union's counteroffer
contained a proposed termination date. The Re-
spondent, however, clearly withdrew that aspect of
its offer when Israel stated in the first negotiating
session that "under no circumstances would the
1companies consider the prior expiration date.""
The Respondent did not thereafter propose a spe-
cific termination date in lieu of the dates it reject-
ed. Accordingly, when Colavito accepted the Re-
spondent's offer on 29 March 1985, the offer lacked
a material term, and his acceptance did not create a
collective-bargaining agreement . The Respondent
thus did ,not violate Section 8(a)(5) and (1) by re-
fusing to recognize that an agreement had been
reached and by refusing to execute a written docu-
ment embodying its terms.12
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4.
"4. The Respondent violated Section 8(a)(5) and
(1) of the Act by
"(a) Changing its employees ' wage rates, and
granting employees bonuses, without affording the
Union an opportunity to bargain about the changes
and bonuses as the exclusive representative of the
Respondent 's employees.
"(b) Implementing wage increases in excess of
the amounts offered to the Union in collective bar-
gaining.
10 Luther Manor Nursing Home, 270 NLRB 949 fn. 1,(1984),'affd. sub
nom. Food & Commercial Workers Local 304A v. NLRB, 772 F.2d 421
(8th Cir 1985).
11 We agree with the judge that the Respondent had not otherwise
withdrawn its fatal offer . In adopting the judge's conclusion , however,
we find it unnecessary to rely on his finding in Roman Iron Works, supra,
282 NLRB 725, 732, that the fact that Respondent Counsel Israel stated
he would be the Respondent 's only negotiating representative demon-
strated that the offer had not been withdrawn. We rely instead on the
other reasons the judge gave.
12 Ridge Citrus Concentrate, 133 NLRB 1178, 1178-1179 (1961); Merce-
des-Benz, 258 NLRB 803 (1981 ); Interprint Co., 273 NLRB 1863 (1985);
see Trustees of Boston University, 228 NLRB 1008, 1010 (1977), enfd. 575
F.2d 301 (1st Cir 1978); see generally H. K. Porter Co. v NLRB, 397
U.S. 99 (1970).
KOENIG IRON WORKS
"(c) Withdrawing recognition of, and refusing to
bargain with, the Union as the exclusive' represent-
ative of the Respondent's employees.
"(d) Failing and refusing to furnish to the Union
relevant and necessary information it requested 30
October 1985 concerning the names and addresses
of newly hired employees; their classifications,
rates of pay, and fringe benefits; and any changes
in the classifications, rates, of pay, or fringe benefits
of any unit employee."
REMEDY
Having found that the Respondent has engaged
in certain unfair 'labor practices, we'shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order the ' Respondent to bargain with
the Union on request and, if 'a complete under-
standing is reached, embody the understanding in a
signed agreement.
Our Order should not be construed as requiring
the Respondent to cancel any wage increase or
other improvement in, benefits without a - request
from the Union. See Elias Mallouk Realty Corp.,
265 NLRB 1225 fn. 3 (1982).
ORDER
The National Labor Relations Board orders that
the Respondent, Koenig Iron Works, Inc., New
York,, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Changing its employees' wage rates, and
granting employees bonuses, without affording the
Union an opportunity to bargain about the changes
and bonuses as the exclusive representative of the
employees in the bargaining unit set out below in
paragraph 2(a).
(b) Implementing wage increases in excess of the
amounts offered to the Union in collective bargain-
ing.
(c) Withdrawing recognition of, and refusing to
bargain with, the Union as the exclusive represent-
ative of the Respondent's employees in the bargain-
ing unit set out below in paragraph 2(a).
(d) Failing and refusing to furnish to the Union
relevant and necessary information on request.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to, effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
719
lowing appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All production and maintenance employees of
the Respondent, including plant, clerical em-
ployees 'employed at its plant, exclusive of
office clerical employees, guards and supervi-
sors as defined in the Act.
(b) On request by the Union, cancel the unilater-
al changes in employee terms and conditions of
employment found unlawful herein.
(c) Furnish to the Union the relevant and neces-
sary information it requested 30 October 1985, cur-
rent to date, concerning the names and addresses of
newly hired employees; their classifications, rates
of pay, and fringe benefits; and any changes in the
classifications, rates of pay, or, fringe benefits of
any unit employee.
(d) Post at its New York, New York facilities
copies of the attached notice marked "Appen-
dix."13 Copies of-the notice, on forms provided by
the Regional Director for Region 29, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order, what
steps the Respondent has taken to comply.
'a If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT change your wage rates or grant
you bonuses without affording the Union an oppor-
tunity to bargain about the changes and bonuses as
the exclusive representative of those of you in the
bargaining unit set out below.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT implement wage increases in
excess of the amounts offered to the Union in col-
lective bargaining.
WE WILL NOT withdraw recognition of, and
refuse to bargain with, the Union as the exclusive
representative of those of you in the bargaining
unit set out below.
WE WILL NOT fail or refuse to furnish to the
Union relevant and necessary information on re-
quest.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All of our production and maintenance em-
ployees, including plant clerical employees em-
ployed at our plant, exclusive of office clerical
employees, guards and supervisors as defined
in the Act.
WE WILL, on request by the Union, cancel the
unilateral changes we made in your terms and con-
ditions of employment that the Board found to be
unlawful.
WE WILL furnish to the Union the necessary and
relevant information it requested 30 October 1985,
current to date.
KOENIG IRON WORKS, INC.
Beatrice Kornbluh, Esq., for the General Counsel.
Stanley Israel Esq., and Diane Weinstein, Esq., of New
York, New York, for the Respondent.
William Colavito, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
These consolidated cases were heard by me at Brooklyn,
New York, on 12 November 1985 and 10 March 1986.
The consolidated complaint in Cases 29-CA-11793 and
29-CA-11859 , issued on 28 June 1985 , was based on
charges filed on 9 April and 22 May 1985 by Shopmen's
Local 445, International Association of Bridge , Structur-
al and Ornamental Iron Workers, AFL-CIO (the Union).
The complaint in Case 29 -CA-12135 , issued on 19 De-
cember 1985 , is based on a charge filed by the Union on
7 November 1985. Pursuant to motion by the General
Counsel, I granted an order consolidating the new com-
plaint with the -earlier consolidated complaints and re-
opening the hearing for the purpose of receiving evi-
dence respecting the additional charge.
The earlier complaints alleged that Koenig Iron
Works, Inc., the Respondent, from October 1984
through January 1985 and at various times during the
period of 6 months before the filing of the charges and
thereafter, violated Section 8(a)(1) and (5) of the Nation-
al Labor Relations Act by making unilateral changes in
existing wage rates and working conditions and granting
wage increases and bonuses; by granting such increases
and bonuses in amounts in excess of the increases and bo-
nuses offered to the Union during collective bargaining;
by subsequently, after an agreement had been arrived at,
refusing to execute a written contract; and by withdraw-
ing recognition of the Union. The Respondent interposed
an answer denying the material allegations of the con-
solidated complaint.
The additional complaint issued in December 1985 in
Case 29-CA-12135 alleged violations of the Act during
and after October 1985 by reason of still further unilater-
al wage increases and increases in excess of the amounts
offered to the Union during bargaining and by-reason of
Respondent's refusal to furnish information requested by
the Union in October 1985. Respondent's answer to the
new complaint denied the material allegations and al-
leged affirmative defenses to the effect that (1) the Union
does not represent the employees in the unit alleged; (2)
the increases which Respondent granted were permitted
by an earlier Board decision in Koenig Iron Works, 276
NLRB 811 (1985); and (3) the issues raised herein are
moot by reason of an order of the Regional Director for
Region 2, dated 20 December 1985, issued in Cases 2-
RC-19574 and 2-RC-20051. These cases involved repre-
sentation petitions filed by Local 810, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America.
The parties were afforded full opportunity to be heard,
to call, examine , and cross-examine witnesses , and to in-
troduce relevant evidence. Posthearing briefs have been
filed by the General Counsel and the Respondent.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration'of the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
There is no issue about jurisdiction, the Respondent
having admitted the material facts alleged with respect
thereto. At the pertinent times, Respondent, a New York
corporation, maintained its principal place of business in
New York City, and engaged in the manufacture , distri-
bution, and installation of metal products. During the
year preceding the issuance of the complaint, alleged as
representative, it purchased and had delivered to its
plant, from points outside New York, goods and materi-
als valued in excess of $50,000. It is, and at all material
times has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. Respondent has admitted and I find that the Union
is, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
KOENIG IRON WORKS 721
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The bargaining unit is composed of all production and
maintenance employees of the Respondent, including
plant clerical employees employed-at the plant, exclusive
of office clerical employees, guards,- and supervisors as
defined in the Act. On 30 September 1980 Respondent
was ordered by the Board to cease and desist from fail-
ing to bargain collectively with the Union as the exclu-
sive representative of the employees in the unit, and was
directed, on request by the Union, to bargain with it in.
such representative capacity and execute a signed agree-
ment embodying an understanding if one was reached.
An order enforcing the Board's Order was issued by the
Second Circuit Court of Appeals on 7 June 1982.
Respondent and the Union conducted negotiations
from August 1982 until some time after 21 September
1983, on which date, Respondent gave the Union what it
has characterized as its "final offer." Some discussions
appear to have taken place thereafter in 1983, but no de-
tails respecting them are in evidence. The situation as it
existed on 21, September 1983 has been the subject of
previous consideration by this Agency. The Union filed
unfair labor 'practice charges on 8 July 1983. In Koenig
Iron Works, 276 NLRB 811 (1985), the Board found that
on 21 September 1983 Respondent' proposed an annual
minimum increase of 75 cents per hour and 'told the
Union that some employees would get greater increases;
that the Union asked for a list of the proposed increases,
specifically setting forth the amounts to be given and the
names of the_ employees, who would receive them; that
the Respondent sent' the Union a list; and that the Re-
spondent, immediately after sending the list, put the in-
creases into effect without discussing them with the
Union or allowing the Union any opportunity 'to com-
ment. Noting specifically that no impasse existed at that
point in the negotiations, the Board held that Respondent
had violated Section '8(a)(5) and (1) of the Act by reason
of its unilateral action in granting the increases. It or-
dered Respondent to cease and desist from such unilater-
al action or similar conduct and, in the event negotia-
tions were resumed, to notify the Union of all proposed
wage increases to employees in the unit and to refrain
from implementing such increases absent an impasse in
negotiations or consent by the Union to the changes.
In all the negotiations, William Colavito, the president
of the Union, 'acted on its behalf while Respondent was
represented by its counsel, Stanley Israel. Israel also was
active on behalf of other companies in the metal prod-
ucts industry who were negotiating new contracts with
the Union. The talks' relating to Respondent and to an-
other company known as Roman Iron Works, Inc.
(Roman) were all conducted at the same bargaining ses-
sions . The incidents of the negotiations for the two com-
panies and the issues under discussion for both compa-
nies were parallel, though the substantive offers by the
two companies and the Union's counteroffers naturally
varied somewhat. When the hiatus in negotiations ended
and the negotiations resumed, the negotiations for both
companies continued to be handled together.
The talks resumed after a lengthy exchange of corre-
spondence between Colavito and Israel in the fall of 1984
and in January 1985. There were three sessions, on 8
February, 14 March, and 29 March 1985. The final out-
come was the adoption ofa position by Israel, on behalf
of Respondent, that Respondent was under no obligation
to bargain with the Union, and contract discussions were
accordingly terminated. Colavito took the position that
the Union would accept the Respondent's "final offer"
and handed Israel a hastily prepared letter accepting the
offer. Accordingly, the Union asserts that a collective-
bargaining agreement between the parties has come into
existence, while the Respondent asserts that the Union
no longer represents the bargaining unit and that, in any
event, Respondent's offer had lapsed and could not be
accepted by the Union on 29 March 1985.
B. The Roman Iron Works Case
Charges were filed by the Union against Roman alleg-
ing the commission of unfair labor practices of the same
nature as those charged in this proceeding against
Koenig: unilateral changes in wages and working condi-
tions, granting of wage increases greater than those the
employer offered to the union, refusal to execute a con-
tract embodying a collective-bargaining agreement sup-
posedly arrived at by virtue of the Union's acceptance of
the employer's final offer, and unlawful withdrawal of
recognition. In that case, Roman took the same position
which Koenig adopts in the instant case , contending,
among other things, that the Act was not violated be-
cause negotiations were not in progress at the critical
times when changes were unilaterally made and that
Roman was not legally obligated to bargain with the
Union at all.
Since the negotiations had been conducted jointly, the
cases presented a common set of facts with respect to
most of the issues. The correspondence between the par-
ties and the statements and actions of Israel and Colavito
during the course of their negotiations and during the
1984 hiatus related for the most part equally to Roman
and Koenig. The Roman case was therefore tried jointly
with the instant case on 12 November 1985. The instant
case was reopened for receipt of additional evidence on
the further complaint filed in December 1985. Because
the two cases in most particulars present a common set
of facts governed by the same 'legal principles, many of
the factual determinations which I made in the Roman
case pertain to factual issues present in this case as well.
Rather than' repeat the discussions and analyses of the
pertinent facts and law at length herein, I have appended
hereto as Appendix B a copy of the decision in Roman
Iron Works, JD-45-86 and reference may be had to the
findings made in that decision which are relevant and ap-
propriate to the instant case. [App. B omitted from publi-
cation; see 282 NLRB 725 issued this day.]
Five of the, conclusions which I arrived at in the
Roman case repecting the facts and the legal positions of
the parties govern or substantially influence the decisions
arrived at in the instant case:
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First, there was no impasse in negotiations between
Respondent and the Union between the time of Koenig's
"final offer" and the renewed talks which began in 1985.
Second, the Union continued to be entitled to recogni-
tion as the exclusive bargaining representative of the bar-
gaining unit at all pertinent times herein.
Third, an offer by Respondent which was finalized as
of 21 September 1983, the major substance of which is
set forth in a letter which Israel sent to Colavito on 28
July 1983, had- not lapsed and was still outstanding and
unrevoked as of 29 March 1985.
Fourth, the delivery by Colavito to Israel of a letter
accepting the offer on 29 March 1985 was effective to
bring into existence a collective-bargaining agreement
between Koenig and the Union.
Finally, declarations made by Israel to Colavito on 29
March 1985 to the effect that Respondent was not obli-
gated to bargain further with the Union and that he did
not agree that a contract had come into being excused
the Union from the necessity of actually preparing and
submitting a written contract for execution embodying
the understanding which had been arrived at.
C. Unilateral Changes in Wages
The Respondent has readily conceded making a
number of changes in wages without notice to or consul-
tation with the Union. The record is replete with stipula-
tions to that effect.
It was stipulated on the record that on 3 October 1985,
16 of the Respondent's employees received an hourly
wage increase of 75 cents, 6 received an hourly wage in-
crease of $1, and 1 employee received an hourly increase
of $1.25, and that the employee, who received the in-
crease of $1 thereafter received a further increase of $1
per hour.
It was further stipulated that in and about October,
November, and December 1984 and January 1985 and at
various times about a date within 6 months prior to the
filing of the instant charges and continuing' to the date of
the hearing, Respondent granted to employees of the
unit described in the complaint wage increases and bo-
nuses in excess of the wage increase and bonuses Re-
spondent had offered to the Union during collective bar-
gaining.
The-evidence establishes that in 1984, yearend bonuses
were given to 19 employees which varied in amount
from $25 to $5000.
There were other stipulations relating to an increase
given to one person no longer on Respondent's payroll
and increases given between 23 May 1985 and 8 August
1985 to seven employees, one of whom received an in-
crease of 25 cents an hour, three of whom received an
increase of 50 cents an hour, and three of whom re-
ceived an increase of $1 an hour-and all of whom re-
ceived additional increases in October 1985.
Another stipulation set forth the fact that certain 1985
Christmas bonuses and hourly wage increases granted
from May to October 1985 were given by Respondent.
Nine employees received wage increases as specified in
schedules appended to the stipulation. The wage in-
creases ranged'in size from 10 cents to $1. Two employ-
ees received hourly increases of 10 cents; one received
15 cents; one received 25 cents; four received 50 cents;
and one received $1. The bonuses were given to 23 em-
ployees and ranged in size from $50 to $6000.
It was stipulated that the Union received no advance
or contemporaneous notice of any of these increases or
bonuses. Colavito testified that he learned of them during
the course of the meetings which he had with Israel in
February and March 1985. He noted the discrepancy be-
tween the size of the offer made to him and the smallest
increase actually given to any employee and the fact that
no offer ever made to him included bonuses.
In the absence of impasse, the making of these numer-
ous changes in wages without notice to the Union or the
granting of any opportunity for the Union to bargain
with reference to them was patently unlawful.
Respondent's counsel, argues, in his posthearing brief,
that the increases granted by this Respondent were not
greater than those offered to the Union because the offer
was' merely a "floor"-the intimation that employees
might receive more is claimed somehow to cover the dif-
ferential. It does not. An offer is delimited by the mone-
tary amount mentioned. As Colavito testified, the mathe-
matics is clear and shows that the increases given greatly
exceeded the offer made to the Union. In the letter of 28
July 1983, Israel had summarized Koenig's offer as in-
cluding, among other things, semiannual increases on the
following schedule:
10/6/83
4/6/84
10/6/84
4/6/85
10/6/85
50 cents per hour
40 cents per hour
30 cents per hour
40 cents per hour
30 cents per hour
and so on through 6 April 1988. Increases which were
actually given in 1985, as conceded in the stipulations, in
each instance exceeded the total offer of 70 cents per
annum, without counting the bonuses.
Counsel's argument in effect harks back to the finding
in Koenig Iron Works, supra, 276 NLRB at 811, 814, that
on 21 September 1983 the wage offer was revised to a
proposal of a 75-cent-per-hour raise in October 1983 in-
stead of a 40-cent and 30-cent raise in October 1983 and
April 1984. That, however, is not the offer which was on
the table when negotiations were suspended and was not
on the table when they were resumed in 1985. Respond-
ent's failure to furnish the information regarding the
offer which the Union requested amounted to a refusal
to negotiate it with the Union, a refusal which was con-
firmed by Respondent's unilateral implementation of the
increase. An employer cannot be said to be making an
offer at the same time that it is refusing to discuss the so-
called offer with the Union. Moreover, when the terms
of the outstanding offer were reviewed with Israel by
Colavito on 14 March 1985, it was the offer contained in
Israel's letter of 28 July 1983 which was reviewed.
D. Refusal to Execute a Written Contract
All the considerations which led me to the conclusion
that a collective-bargaining agreement came into exist-
ence between the Union and Roman on 29 March 1985
apply with equal force to this Respondent. There is no
KOENIG IRON WORKS
difference in the circumstances material enough to
change the result for Koenig.
E. Withdrawal of Recognition
Respondent has shown no circumstances with respect
to Koenig which impel me to draw any different conclu-
sion respecting the Union's presumed majority than I did
in the case of Roman.
The only points made by Respondent in this case
which were not made in the case of Roman are that
Koenig employees did not participate in an industrywide
strike in 1975 and that prior Board decisions are silent on
Koenig's future obligation to bargain with the Union.
Both points are unpersuasive. Failure of Koenig's em-
ployees to strike in 1975 by itself proves nothing about
the Union's majority at that time and is too remote to
cast light on the Union's situation at the times pertinent
in this case. The future obligation to bargain was not at
issue in the cases already decided. Far from sustaining its
burden of showing that the Union lost its majority or
that Koenig had reasonable belief that it did based on ob-
jective considerations, Respondent has shown only that it
resumed bargaining with the Union under circumstances
which, as I found in Roman decision, leave no doubt
that it believed itself to be dealing with the authorized
representative of its employees in the bargaining unit.
F. Failure to Furnish Information
Respondent stipulated that since October 1985 it had
failed to furnish information which the Union had re-
quested. By letter dated 30 October 1985, Colavito had
asked for the names and addresses of newly hired em-
ployees, their classifications, rates of,pay, and fringe ben-
efits and for data respecting any changes in pay, benefits,
or classifications of any unit employees since Respond-
ent's last advice to the Union.
Having taken the position that the Union did not rep-
resent its employees, Respondent ignored the request.
My other findings herein lead inevitably to the conclu-
sion that the Union was entitled to the information it re-
quested so that it could fulfill its lawful obligations to the
members of the bargaining unit.
G. The Affirmative Defenses
The first affirmative defense, that the Union does not
represent the employees in the unit alleged, is dismissed
for reasons already set forth herein and in the Roman de-
cision. The Respondent did not meet its burden of proof
to establish that the Union has lost its majority or that
the Respondent,has a bona fide belief to that effect based
on objective considerations.
The second affirmative defense is dismissed because
the decision in Koenig Iron Works, 276 NLRB 811 (1985),
does not at all "permit, under the factual circumstances
herein present, the granting of the increases complained
of in the complaint." Respondent was found to have vio-
lated the Act by unilaterally implementing wage in-
creases during negotiations and was ordered to cease and
desist from doing so. I have found that there was no im-
passe; the Board has found no impasse; and the increases
found violative of the Act were granted in October 1983.
723
In line with my earlier observation that there appear to
have been discussions after 21 September 1983, it is obvi-
ous that negotiations were still in progress after the
"final offer." As I noted in the Roman case, the failure
of the parties to meet did not by itself show either im-
passe or termination of negotiations during the period be-
tween the events of the fall of 1983 and the three ses-
sions of 1985 or the correspondence in 1984 which pre-
ceded them. -
The third affirmative defense is dismissed because
these proceedings are not rendered moot simply by
virtue of an order of the Regional Director for Region 2
dated 20 December 1985. Actually, the order is not in
evidence and I was not asked to take administrative
notice of it. The point has not been pressed in the hear-
ing or in Respondent's posthearing brief. According to
the copy of the order appended to Respondent's answer,
it appears that proceedings on a representation petition
of Local 810, Teamsters, had, been ' blocked by unfair
labor practice charges. The Regional Director held that
because they had been resolved the proceedings could
now go forward. The Regional Director did not consid-
er the pendency of the present proceeding as a bar to the
representation proceeding because the charges herein
arose more than a year subsequent to the filing of the pe-
tition. It appears, however, that the proceedings under
the petition of Local 810 are moot. There is no evidence
regarding whether any, further proceedings were had, on
the order or, if there were, what the outcome was.
CONCLUSIONS OF LAW
1. The Respondent , Koenig Iron Works, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act,
2. The Union, Shopmen's Local Union No. 455 , Inter-
national Association of Bridge „ Structural and Ornamen-
tal. Iron Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union is the collective-bargaining representa-
tive of the following appropriate unit within the meaning
of the Act:
All production and maintenance employees of the
Respondent, including plant clerical employees em-
ployed at its plant, exclusive of office clerical em-
ployees, guards and supervisors as defined in Sec-
tion 2(11) of the Act.
4. The Respondent violated Section 8(a)(1) and (5) of
the the Act by
(a) Refusing on 29 March 1985, to recognize that a
collective-bargaining agreement had been arrived at by
reason of the Union's acceptance of the Respondent's
comprehensive contractual offer of 21 September 1983
and by refusing to execute a collective-bargaining con-
tract embodying the terms of the agreement reached be-
tween Respondent and the Union.
(b) By implementing changes in wages, hours, and
working conditions of employees in the unit, without af-
fording the Union an opportunity to negotiate and bar-
gain as the exclusive representative of the Respondent's
employees with respect to such changes.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) By implementing wage increases in excess of the
amounts of increases offered by Respondent to the Union
during collective bargaining.
(d) by failing and refusing to furnish information re-
quested by the Union on 30 October 1985 respecting
names and addresses of newly hired employees, their
classifications , rates of pay , and fringe benefits and data
respecting any changes in pay , benefits , or classifications
of any unit employees.
(e) By withdrawing recognition of and refusing to bar-
gain with the Union as the exclusive collective -bargain-
ing representative of the unit.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(1) and (5) of the Act, I
shall recommend that the Respondent be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. I
shall recommend that Respondent be directed to execute,
on request by the Union, a collective-bargaining contract
reflecting the agreement arrived at when the Union ac-
cepted the Respondent's contract offer of 21 September
1983, except that I shall recommend that in any job cate-
gory, where Respondent is currently paying more than
the wage rate offered to the Union and agreed to in the
contract , the same shall be deemed modified to reflect
the higher wage rate.
As in the case of Roman , special provision must also
be made with respect to the duration of the contract.
Had the contract been drawn up and executed within
a reasonable period of time after 29 March 1985, when
the Union accepted Respondent's outstanding contract
offer, the,contract would have had an expiration date of
31 December 1988, and would have had a total duration
of 3 years and 9 months. The time which has elapsed
during the pendency of the instant proceedings should
not be lost to the parties. Accordingly, I will recommend
that the contract, when signed, have a fixed duration of
3 years and 9 months from the date on which it is exe-
cuted.
[Recommended Order omitted from publication.]