Reisman Bros., Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1967

165 N.L.R.B. 390 (N.L.R.B. 1967)

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reisman Bros., Inc. and Local 29 , Retail,
Wholesale and Department Store Union,
AFL-CIO. Case 2-CA-11136.
June 14, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 29 , 1967, Trial Examiner Paul E. Weil
issued his Decision in the above -entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner ' s Decision . Thereafter,
the General Counsel and the Respondent filed
exceptions to the Trial Examiner 's Decision, with
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner 's Decision , the exceptions of the General
Counsel and the Respondent and supporting briefs,
and the entire record in the case, and hereby adopts
the findings , conclusions , and recommendations of
the Trial Examiner, except as modified herein.
The General Counsel has excepted to the Trial
Examiner 's failure to find that Respondent has
interfered with , restrained, and coerced, and is
interfering with , restraining , and coercing, its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, by refusing to meet with
Local 29, Retail , Wholesale and Department Store
Union , AFL-CIO , the exclusive collective-
bargaining representative of Respondent's
production and maintenance employees , unless and
until Local 29 submitted revised proposals which
Respondent would regard as practicable and
reasonable . Based upon the record as a whole, we
find merit in this exception and will , accordingly,
modify the Trial Examiner 's Recommended Order
herein to require that Respondent cease and desist
from interfering with , restraining , or coercing its
employees in the exercise of the rights guaranteed to
them in Section 7 of the Act.I
Inc., its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, with the following
modifications:
1. Add the following as paragraph 2 thereof:
"2. In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act."
2. Renumber existing paragraph 2 as paragraph 3.
3. Add the following indented paragraph to the
Appendix:
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their bargaining rights
guaranteed in Section 7 of the National Labor
Relations Act, as amended.
' Respondent excepts to the Trial Examiner's reference to
comparable factory wage rates in New York City in suggesting
that the Union's wage demands could he regarded as not so
"outrageously unreasonable" as to warrant Respondent's refusal
to negotiate The Trial Examiner concedes that no evidence of
comparable wage rates was adduced at the hearing We find it
unnecessary to consider the reasonableness of the Union's wage
demands in disposing of this case and, in any event, we do not
adopt the comments and observations of the Trial Examiner with
respect to comparable factory wage rates in New York City
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner : On a charge filed
October 31 , 1966, by Local 29, Retail , Wholesale and
Department Store Union , AFL-CIO, herein the Union,
against Reisman Bros., Inc., herein Respondent, the
General Counsel issued his complaint on November 28,
1966, alleging that Respondent violated Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended, by
failing and refusing to bargain with the Union during the
certification year.
By its duly filed answer Respondent denied the
commission of any unfair labor practices and as an
affirmative defense, on facts stated therein, contended
that the Union was not prepared to bargain in good faith
and that Respondent will bargain at any time provided that
the Union too is prepared to bargain in good faith.
This proceeding , with all parties represented , was heard
before me at New York City on January 12, 1967. After the
hearing Respondent and General Counsel filed briefs.
Upon the entire record in this case and my observation
of the witnesses and in consideration of the briefs, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent , Reisman Bros.,
Respondent, a New York corporation, engaged, in the
city of New York, in the manufacture, sale, and
distribution of zippers and related products, annually
purchases goods and materials valued in excess of $50,000
which were transported in interstate commerce from
States of the United States other than New York to its
plant in New York City. Respondent is and at all times
material hereto has been an employer engaged in
165 NLRB No. 50
REISMAN BROS., INC.
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On January 19' the Union filed a petition with the
Board, docketed as Case 2-RC-14243, seeking
certification of a unit of all production and maintenance
employees of the Respondent with the normal exclusions.
A joint conference was held prior to a hearing on the
petition on February 10. Before the joint conference the
Union commenced a strike against Respondent.'
At the conference, attended by Joel Pave, the Union's
president, Mr. Luxemburg, the Union's attorney, Zoltan
Reisman, president of Respondent, and Mr. Persky, his
attorney, the Board's representative suggested that the
strike be called off pending the determination of the
representation issue. Attorney Luxemburg recommended
the move to his client but Pave refused to consent and
stated that the strike would go on.
After the conference Union President Pave drew
Attorney Persky aside and said "Look! What is your wise
guy trying to do? I tell you, but I will deny it if anybody
ever says it, that we will put this guy out of business."
Adding an obscene threat, Pave walked away:'
The hearing was held February 10 and dealt solely with
jurisdiction.
The Regional Director found that Respondent was
engaged in commerce and recited factually that
Respondent in the year 1965 had gross sales of
approximately $150,000 and purchased tape and zippers in
interstate commerce to a value in excess of $63,000. An
election was ordered and conducted on or about March 14.
Thereafter on or about August 8, the Regional Director
certified the Union as the exclusive bargaining
representative of the employees.' On the following day,
August 9, Pave addressed a letter to Respondent with a
copy to Attorney Persky requesting that Respondent
immediately confer with the Union in order to negotiate a
contract and stating, "Will you kindly have a
representative of your Company authorized to bargain
with this Union at our office on August 16, 1966, at 10 a.m.
If this time is not satisfactory will you please communicate
with us immediately to arrange for a mutually agreeable
time." On August 11 Attorney Persky, representing
Respondent, and Attorney Goldsmith, representing the
Charging Party, agreed by telephone to meet at Persky's
office for purposes of collective bargaining on August 16 at
10 a.m. In this conversation Attorney Persky asked that
the Union submit written proposals prior to the meeting so
that the Respondent, without delay, could be prepared to
negotiate with the Union on the 16th. Persky confirmed
the conversation with a letter on August 11 again repeating
the request that before the conference Respondent be
furnished a statement of the Union 's requests, in writing,
and stating the belief that this would expedite matters
considerably. Attorney Goldsmith advised Pave of
All dates herein are in the year 1966 unless otherwise noted
The date on which the strike commenced and the avowed
purpose thereof are not available in the record
391
Respondent's request but no advance notice of the Union's
demands was given the Respondent.
On the 16th all parties were present at 10 o'clock with
the exception of Pave who arrived some 20 minutes late.
Immediately upon his arrival Pave and Attorney
Goldsmith went to an adjoining room where they discussed
the Union's demands one by one. At Attorney Goldsmith's
recommendation additional demands were added and
some were changed. At the conclusion of the reading of
the Union's demands Attorney Persky stated that he was
surprised and shocked at the extent of the demands and
stated his client would have to go over the demands and
consider them with reference to the Respondent's
financial situation. He suggested that they meet at a later
time to negotiate. He declined to make any
counterproposals at this time. Attorney Goldsmith stated
that the Union was willing to negotiate or listen to
counterproposals on the Company's part. Attorney Persky
pointed out that what was happening was precisely what
he had foretold; namely, further delay because
Respondent hadn't received the proposals before the
conference. He informed the Union's negotiators that he
would let them know the Company's answer.
Thereafter Reisman and Attorney Persky met and
computed the cost of the contract to the Company and
determined that the cost over a 2-year period totaled
$49,957.90 over and above the present labor cost to the
Company which in the year 1965 had been approximately
$32,000.
On August 16 the Union confirmed by letter its demands
which included 10 paid holidays, a week's vacation for 6
months' employment, 2 weeks for a year, and 3 weeks for 3
years of employment, union security and checkoff, an
immediate wage increase effective to August 16 of 32-1/2
cents an hour with a base for present employees of $1.72 -
1/2 an hour, and an additional wage increase on August 16,
1967, of 20 cents an hour. The Union also demanded 5
percent of the gross wages to be paid to the health and
welfare fund and $3 a week to the union pension fund, 5
days' sick leave, and time and a half after 8 hours a day,
double time for Sunday work, and double time and a half
for holiday work.
Attorney Persky, on August 22, wrote to the Union
pointing out that the demands would result in an increase
in Respondent's wage costs of almost 80 percent and
stating that he believed that the demand was made in
haste and without proper study by the Union. Persky
invited the Union to inspect the computation by which he
had arrived at his figures, stated that Respondent will be
prepared to discuss the matter further upon the
presentation of revised demands more in keeping with the
realities of the situation, and suggested that the demands
were not made in good faith. On August 25 Attorney
Goldsmith addressed a letter to Attorney Persky accusing
Respondent of failure of good-faith bargaining in that
Respondent made no counterproposals and asked for
counterproposals without delay. He concluded with the
suggestion of a second bargaining session on September 1.
Persky answered on August 30 confirming a bargaining
conference for Tuesday, September 6. This conference
was called off because Attorney Persky was engaged in
court and on September 13 Attorney Goldsmith addressed
Pave did not appear at the hearing
The record does not disclose the reason for the delay in
certification between March 14 and August 8
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a letter to Persky suggesting a meeting on September 22
and asking again for counterproposals. On September 27,
Attorney Goldsmith called Persky and asked for a
meeting. Persky declined to meet until the Union
submitted more reasonable proposals. On October 4, after
a discussion with Pave, Goldsmith wrote another letter to
Attorney Persky submitting revised demands calling for a
wage increase of 28-1/2 cents an hour retroactive to
August 16 and an additional 18 cents an hour effective
August 16, 1967, reducing the number of paid holidays to
nine and calling for a negotiating meeting on October 11.
On October 18 Attorney Persky wrote to the Union and
pointed out that the revised demands would increase the
Company's cost for labor $48,605.90 over a 2-year period,
again pointing out that the entire payroll for the last year
before the strike was $32,000 and that the proposal would
increase wage costs almost 80 percent. Persky stated, "I
failed to see how even these revised demands could have
been made in good faith by your office, and accordingly I
can see no point in arranging another conference at this
time." The letter ended with the statement that
Respondent was prepared at all times to negotiate in good
faith upon receipt of demands that are practicable and
reasonable. The Union's response was to file the instant
charges.
Conclusions
The General Counsel contends that Respondent refused
to bargain by its refusal not only to counterpropose but
even to meet until the Union again lowered its demands to
a point which the Respondent considered reasonable.
Respondent contends that it has no duty to bargain in view
of the demonstrated bad faith of the Union deduced from
the threat of Union President Pave to put Respondent out
of business and the Union's demands, which amounted to
an 80-percent increase in wage expenses to Respondent.
Respondent relies on N.L.R.B. v. Kentucky Utilities
Company, 182 F.2d 810 (C.A. 6). In that case the company
refused to bargain with a union negotiating committee
which included one Braswell who had, as had Pave in the
instant case, threatened to destroy the employer
financially. The court said:
Collective bargaining is a two-sided proposition; it
does not exist unless both parties enter the
negotiations in a good faith effort to reach a
satisfactory agreement .... With Braswell acting as
one of the negotiators for the Union, any meeting with
the negotiators would not have fulfilled the
requirements of collective bargaining. His expressed
hostility to the respondent and his purpose to destroy
the respondent financially made any attempt at good
faith collective bargaining a futility. Just as collective
bargaining in form only and lacking in substance has
been condemned, certainly collective bargaining in
form only without good faith negotiating on the other
side should not be required.
As the Trial Examiner stated in Valley Date Gardens,
Inc., 144 NLRB 1544,1550, several decisions within recent
years reflect the Board's general concurrence with judicial
determinations that employers may properly refuse to
recognize or deal with particular union representatives
whose conduct or statements reflect such underlying
hostility directed against the firm as to make collective
bargaining a futility. The decisional doctrine noted,
however, has been given limited scope; Board declarations
with respect to its validity have routinely appeared as dicta
in cases considered factually distinguishable. I find that
the situation had not changed since 1963 when Valley Date
was written. Kentucky Utilities still is cited with approval
and is yet to be followed.
It appears to me that the point is valid. There must be a
time at which the Union's bad faith in making its demands
is so overt as to place the Respondent in the position
where it need not respond to the Union's demand for
bargaining but may refuse to bargain until the Union
makes a more reasonable approach. The question is a
factual one, in my opinion, and one in which the facts must
be rigorously examined.
In the instant case Respondent started out with the
threat of Pave to put it out of business, and the strike,
which, as far as I know, continues to the day of this
writing. From the Respondent's viewpoint, the demands of
the Union could well appear to have indicated a purpose to
put it out of business. An 80-percent increase in wage
expenses unquestionably sounds unreasonable, especially
at a time when the President of the United States was
advocating restriction of wage increases to 3 or 4 percent.
But a closer examination of the Union's demand throws
some doubt into the picture.
The starting wage demanded by the Union of $1.55 per
hour, for a factory located in the metropolitan area of New
York, does not seem so outrageously unreasonable nor
does a wage for employees employed prior to August 16 of
$1.70 an hour which is the wage called for in the Union's
second demand.5 The demand of 5 percent health and
welfare and $3 per week per employee for the pension
fund is not substantially different from that found in many
union contracts.
The 8-hour day is standard and the nine paid holidays
are increasingly finding acceptance in negotiated
contracts.
It appears to me that we must go one step further than
merely to look at the increase in cost to the Employer. It is
not inconceivable that the Employer was operating with
wage standards below that of its competitors or, on the
other hand, that Respondent used a class of employees
who for one reason or another are not ordinarily paid by
the same wage standards as employees of other
employers. No evidence was adduced in this regard.
Presumably Respondent's employees were paid at least
the minimum wage but whether Respondent's employees
were paid wages comparable to that in other similar
enterprises is not revealed by the record. If, in fact,
Respondent's employees are underpaid in terms of the
marketplace it should not necessarily be shocking to it to
be met with demands such as those promulgated by the
Union.
It appears to me that the quantum of proof must be high
to entitle Respondent to escape the action of the express
terms of the statute, which provides that the duty to
bargain includes the duty to meet and negotiate in good
faith. This is not an issue so much of the Respondent's
good faith, but rather of whether the evidence available to
5 The annual survey of the Bureau of Labor Standards for 1964
stated that average hourly earnings of production workers in New
York City factories was $2.56.
REISMAN BROS., INC.
the Respondent is so overwhelmingly convincing of the
Union's bad faith that it need not take the minimal step
required by the statute of meeting the Union face to face
and telling the Union in what respects it regards its
demands as unreasonable. Respondent does not question
the propriety of the unit nor the Union's representative
status. The employees have a right to be represented and
they chose this Union by secret ballot. The good faith of
the Union is easily capable of a test by Respondent. It
would have had only to meet and negotiate to test whether,
in fact, the Union was as intransigent as Respondent
contends.
I do not presume to say that the union demands are
irresponsible or outrageous. I do not know whether they
are within or without the range of wages and working
conditions in the industry in which Respondent is
engaged. But I believe that Respondent has the duty to
take at least one more step and put its belief to the test. If
the Union is in fact intransigent and its demands are in
fact beyond the reach of Respondent it should quickly be
apparent and an impasse would result. At this point
Respondent is relieved of its duty to bargain further.
I find that Respondent has, as charged, failed and
refused to bargain within the meaning of Section 8(a)(5) of
the Act.
THE REMEDY
I shall recommend an order requiring the Respondent to
cease and desist from its unlawful conduct. In view of the
narrowness of the issue presented and the fact that
Respondent has declared its willingness to meet and
bargain with the Union under conditions it deems
reasonable, I shall not recommend any broader cease-and-
desist order. Affirmatively I shall recommend an order
requiring Respondent, upon request, to bargain with the
Union until it reaches either an impasse or a contract.
Accordingly, upon the foregoing findings of fact and
conclusions of law and on the record as a whole, I
recommend, pursuant to Section 10(c) of the Act, the
following:
ORDER
Respondent, Reisman Bros., Inc., its officers , agents,
successors, and assigns , shall:
1. Cease and desist from refusing to bargain in good
faith with Local 29, Retail, Whole and Department Store
Union, AFL-CIO, as the exclusive representative of the
employees in the unit certified as appropriate in Case
2-RC-14243.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Upon request of the aforesaid certified bargaining
representative, bargain with it in good faith with respect to
wages, hours, and working conditions.
393
(b) Post at its plant in New York, New York, copies of
the attached notice marked "Appendix.-6 Copies of said
notice, to be furnished by the Regional Director for
Region 2, after being duly signed by an authorized
representative of the Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.7
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
r In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify employees
that:
Upon request of Local 29, Retail , Wholesale and
Department Store Union , AFL-CIO, the exclusive
bargaining representative of our production and
maintenance employees , WE WILL bargain with it in
good faith concerning wages, hours, and working
conditions of our employees.
REISMAN BROS., INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 5th Floor,
Squibb Building, 745 Fifth Avenue, New York, New York
10022, Telephone 751-5500.