Brooks, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 757 (N.L.R.B. 1980)

BROOKS. INC. 757
Albion Corporation d/b/a Brooks, Inc. and Local
No. 1, International Union of Operating Engi-
neers, AFL-CIO and Charles Hoffman. Cases
27-CA-4557 and 27-CA-4562
August 27, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April 12, 1977, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding' in which it found that the Re-
spondent had engaged in certain unfair labor prac-
tices in violation of Section 8(a)(5), (3), and (1) of
the National Labor Relations Act, as amended, and
ordered the Respondent to take certain affirmative
action to remedy such unfair labor practices.
On March 5, 1979, the United States Court of
Appeals for the Tenth Circuit issued its judgment2
enforcing the Board's Order with the exception of
the provisions requiring the Respondent to make its
employees whole for their loss of pay. Prior to the
issuance of the Board's Decision and Order, the
Respondent had filed a motion to reopen the
record to admit newly discovered evidence pertain-
ing to the provisions of the Board's Order requir-
ing Respondent to make its employees whole for
their loss of pay. The Board denied the motion. In
remanding the case, the court instructed the Board
to reopen the record for the purpose of admitting
the newly discovered evidence.
On October 10, 1979, a hearing was held before
Administrative Law Judge Leonard N. Cohen for
the purpose of receiving the newly discovered evi-
dence. On May 20, 1980, the Administrative Law
Judge issued the attached Supplemental Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief.
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 to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and brief, and has decided to affirm the
rulings, findings, 3 and conclusions of the Adminis-
' 228 NLRB 1365.
593 F2d 936
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Producs.
Inc.. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
251 NLRB No. 104
trative Law Judge 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, Albion Corpo-
ration d/b/a Brooks, Inc., Denver, Colorado, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
SUPPLEMENTAL DECISION
STATEMENT OF IHF CASE
LEONARD N. COHEN, Administrative Law Judge: Pur-
suant to an Order of the National Labor Relations
Board, herein called the Board, issued on July 10, 1979,
and a notice of hearing issued by the Acting Regional
Director for Region 27 on July 13, 1979, a hearing was
held before me in Denver, Colorado, on October 10,
1979. On April 12, 1977, the Board issued a Decision and
Order' in the above-entitled proceeding in which it
found that Respondent had engaged in certain unfair
labor practices in violation of Section 8(a)(5), (3), and (1)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended, and ordered Respondent to cease and
desist therefrom, and to take certain affirmative action to
remedy such unfair labor practices.
Thereafter, the Board filed a petition for enforcement
of its Order with the United States Court of Appeals for
the Tenth Circuit, and Respondent filed a cross-petition
for review of the Board's Order. On March 5, 1979, the
court enforced the Board's Order with the exceptions of
the provisions requiring Respondent to make its employ-
ees whole for their loss of pay. 2 Prior to the issuance of
the Board's Decision and Order, Respondent had filed a
motion to reopen the record to admit newly discovered
evidence. The Board denied Respondent's motion, find-
ing that such evidence had no bearing on the allegations
then before the Board. In remanding the case to the
Board, the court instructed the Board to reopen the
record for the purpose of admitting the newly discov-
ered evidence pertaining to the provisions of the Board's
Order requiring Respondent to make its employees
whole for loss of their pay. A brief summary of the facts
as previously found by the Board and adopted by the
court is as follows:
By late 1974, the Union represented in separate bar-
gaining units Respondent's maintenance and janitorial
employees. The I-year contract covering the approxi-
mately eight maintenance employees was effective
through June 14, 1975.3 The contract covering the ap-
228 NLRB 1365 (1977)
2 593 F2d 936 (10th Cir 1979)
:' Unless otherxwise indicated, all dates hereinafter are in 1975
BROOKS. [N. 757
trative Law Judge and to adopt his recommended
_ . _
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proximately 10 janitorial employees, herein called jani-
tors, was effective through December 31.
In early April, the Union sent its notice of intent to
reopen the maintenance contract and, in the following 2
to 2-1/2 months, unsuccessfully attempted to get Re-
spondent to meet and bargain with it over a new con-
tract.
On June 16, the maintenance employees struck Re-
spondent and set up a picket line. The entire complement
of janitors honored the picket line. Respondent almost
immediately contracted with two independent contract-
ing firms to perform the work previously done by the
maintenance and janitorial employees.
On the first day of the strike, Respondent's attorney,
Weinshienk, called the Union's attorney, Simons, and in-
formed him that, while Respondent was willing to bar-
gain, it was then preparing a petition to determine the
Union's majority status. Simons rejected the offer to bar-
gain as ambiguous.
On June 20, Simons called Weinshienk and the two at
that time scheduled bargaining meetings for the follow-
ing week. During the course of their conversation,
Simons unconditionally offered to return all the employ-
ees to work. By letter sent that same day, Simons con-
firmed his offer.
Respondent did not reply to Simons' offer until the
parties' meeting of June 27. At that time, Respondent At-
torney Gorsuch informed the Union that the janitors
could be reinstated but that the maintenance employees
could not return until "certain legal questions" were re-
solved. At a meeting held on July 2, Respondent indicat-
ed that, while it was willing to reinstate the janitors, it
conditioned such reinstatement on a guarantee that they
would remain at work for 30 to 60 days. Thereafter, this
condition imposed by Respondent was changed to extend
to a flat 60-day guarantee.
The parties continued to meet and bargain throughout
July and early August. Respondent, by its vice president,
Torgove, offered a proposal for a new contract which
would have provided for a reduction in the wages and
benefits received by the maintenance employees. While
calling for such a reduction, Respondent asserted that its
proposals, nonetheless, provided for wages and benefits
in excess of those received by either the temporary re-
placements or maintenance workers at comparable area
buildings. The Union, by its business manager, Crouch,
rejected this offer and on August 1 countered with an
offer to extend the expired contract for 1 year. This
counteroffer was rejected and, on August 8, Respondent
submitted its "final offer" which, while slightly higher
than its original offer, still called for lower rates than
provided for in the expired contract. The Union rejected
this "final offer" and Respondent, on that same date,
then offered the replacements permanent employment.
Although the maintenence employees have never been
reinstated, the janitors were reinstated in mid-October.
The court affirmed the Board's findings and conclu-
sions that Respondent had (I) violated Section 8(a)(l) of
the Act by telling its employees that anyone who went
on strike would never work for Respondent again; (2)
violated Section 8(a)(5) and (I) of the Act by refusing to
recognize to bargain with the Union, and (3) violated
Section 8(a)(3) and (1) of the Act by imposing unlawful
conditions on the reinstatement of unfair labor practice
strikers.
The court, however, refused to enforce that portion of
the Board's Order requiring Respondent to make its
maintenance employees whole for any loss of pay they
suffered after August 8.
In this matter, the court noted (593 F.2d at 940) that
Respondent in its appellate brief argued:
. . . that it bargained in good faith with the Union
from late June until its offer of August 8 was re-
fused, at which point impasse was reached. Albion
asserts that it made a lawful unilateral change in
terms of employment following this impasse in bar-
gaining, and the decision to continue the strike
beyond that point constituted revocation of the ear-
lier unconditional offer to return to work. The
strike purportedly continued thereafter purely on
economic issues. Therefore, Albion urges, the
award of lost pay should be limited to the period
prior to the impasse in bargaining.
In support thereof, the court continued [id. at 940-941]:
. . .Albion moved the Board to reopen the record
for the purpose of taking newly discovered evi-
dence. Albion made an offer of proof that it and the
Union reached an agreement with respect to the
Brooks Towers janitorial employees in February
1976, after the close of the hearing in this case. At
negotiations with the janitorial respresentatives,
Torgove allegedly took a bargaining position very
similar to that which he displayed in negotiations
with Crouch the previous summer concerning the
maintenance employees. The offer of proof further
states that the agreement concluded in February
1976 provides for a substantially lower economic
package than that enjoyed by the janitors under the
prior contract. The motion to reopen was denied by
the Board which stated the proffered evidence had
no bearing on the question of Albion's good faith at
the negotiations with the maintenance employees.
We do not agree.
In remanding the matter to the Board with instructions
to reopen the record for the purpose of admitting the
newly discovered evidence, the court stated (id. at 941):
We are convinced, however, that this proffered
evidence was not only essentially unavailable at the
time of the hearing, but also has great bearing on
the question of Albion's good faith. The offered evi-
dence, which we assume to be true for present pur-
poses, N.L.R.B. v. Ideal Laundry and Dry Cleaning
Co., 10 Cir., 330 F.2d 712, 716, demonstrates that
Albion was able within a few months of the negoti-
ations here at issue to convince the Union that its
financial plight justified a wage and benefit reduc-
tion, for its Brooks Towers employees. The tenacity
with which Albion maintained its position and the
ultimate acquiescence of the Union thereto, when
considered in the light of presently existing evi-
BIROOKS. INC 7I5)
dence of Albion's financial dilemma strongly sup-
ports the assertion of good faith.
At the hearing on remand, all parties were afforded the
full opportunity to appear, to introduce evidence, and to
examine and cross-examine witnesses, to argue orally.
and to file briefs. Counsels for the General Counsel and
Respondent filed briefs which have been carefully con-
sidered.
Upon the entire record of this case and from my ob-
ser\vation of the witnesses and their demeanor, I make
the following:
FINI)IN(GS OI FACI
1. IV\t) IENCI P'RtSI-NSI'tI) A II l. ROPlNI.1
EtlARING
A. Background4
Prior to the June strike, the janitors performed their
duties in both the commercial as well as in the noncom-
mercial areas (hallways, apartments, and common space)
at Brooks Towers, a large apartment and office building
complex in downtown Denver, Colorado. The 1977-78
collective-bargaining agreement listed five separate job
classifications or designations with wages, as of October
7, 1975, ranging from a low of $2.83 an hour to a high of
$4.26 an hour. Although the record is far from clear, it
appears that none of the 10 janitors employed during the
calendar year 1975 were employed in the highest pay
classifications and the large majority of the 10 were em-
ployed in the lower classifications with hourly wages
ranging from $3.21 an hour to $3.63 an hour.
When Respondent, on October 10, finally made its un-
conditional offer to its janitors, only 6 of the original 10
indicated to Respondent that they intended to return to
work.5 Apparently Respondent had by at least mid-Sep-
tember been informed that only half of the original unit
would accept its offer for, during that month, Respond-
ent Vice President Torgove called Sam Crouch, the
Union's business manager, and asked if the Union could
help secure additional janitors. Crouch declined to do so
on the grounds that it was not the Union's responsibility
to find new employees.
About the same time that the five strikers returned,
Respondent hired six new employees to replace those
strikers who refused its offer. Of those six new employ-
ees, five, a Korean family comprised of a father and his
four children, had been employed by the janitor contrac-
tor working exclusively in the commercial portions of
the building since mid-June.6 The father acted as a "kind
of superintendent of the family" and received a rate of
$3.08 an hour while his four children received a rate of
$2.83 an hour.7
Torgove testified that. during the period of the strike
that the contractor was performing the janitorial serv-
4 The act, se f rh In this sectll, n re nor In dispute
' UltimateNl. o1l fit.e of the strikillg e nlployees did ill fact accept Re-
spindenl's offer
' The sixth nes crmpplosc apparentl5 had not %rrked al the building
prior to ) tobher
7 The wagce rates oif hese fie c did not change he ilhe neu. collc
tise-hargaining gree mnt llcaelll ilnto effect
ices, Respondent discovered that the cleaning of the
commercial areas of the building' could be completed in
5 hours rather than the normal shift of 8 hours. There-
fore, unlike the five returning strikers who worked a
minimum of 8 hours a day, these new' emploxces ere
employed at all times on a 5-hour shift per night.
As will be set forth in some detail below, the Union's
negotiating team for the upconming bargaining sessions
leading to the news collective-hargaining agreement ,,as
composed of Crouch and the four remaining employees
who had worked for Respondent prior to the June strike.
During these negotiations, Respondent proposed and the
Union agreed that the union-security and checkoff provi-
sions be changed to specifically exclude those janitorial
employees who performed work exclusively in the conm-
mercial areas. Additionally, Respondent proposed and
the Union agreed that a new classification, that of a
working foreman, be created and excluded from the
union-security provisions. The article by which Respond-
ent recognized the Union as the exclusive bargaining rep-
resentative for all its janitorial employees was not
changed from the prior agreement. The explanation re-
garding this apparent inconsistency is less thian clear.
While fully admitting that the terms and conditions of
the new collective-bargaining agreement were not il-
tended nor had been applied to either those employees
performing exclusively in commercial areas or to the
working foreman, these employees were, nonetheless in
the opinion of Respondent, represented by the Unionl.
Crouch's testimony on this point is scarce and vague.
It appeared that he, in agreement with Torgove, believed
that the contract's terms and conditions did not appl to
either of these classifications. Unlike Torgove, however,
it does not appear he ever felt that by virtue of the rec-
ognition clause of the contract the Union represented
either classification. Further, Crouch testified that during
the negotiations in early 1976 he was not aware that Re-
spondent was currently employing an5y janitors other
than the initial reinstated strikers. Crouch admitted that,
although he was aware that 10 janitors were employed
prior to the June strike and that Respondent had sought
and elicited his aid in securing new employees. at no
time during these negotiations did he ever ask Rcspond-
ent about this subject.
B. Negotiations for the Aew Contract
On October 30 and 31, Respondent and the Union, re-
spectively, notified the other of their intent to open the
1974-75 collective-bargaining agreement for renegoti-
ation. Between mid-November and early February 197h.
a total of six separate negotiation sessions were held
which ultimately led to the execution of a new collec-
tive-bargaining agreement effective February 1, 197h.
through February 28, 1977. °0 The parties met for the
The cleaning of these portions f he buildineg. inIike tlite paillir lli
could oitI he performed it tight aft,r Iht e.lOis, C - regl.lr hulsli.
hours
5 i]att D)ecem er. i, on, tIhe ft,.c rlurll.si \llltiit.irtIl Itt R i d
cl% n ephs
" I.ttle fai aLil disputie cxists regarding the itegltlliolS 1.1 iItI . ll
iltrs oIlt.l thilet foll"I', i recItation {I t s is hij.cd I I iorgyS C, Ic-
( Ollllll^d
I)ICtISI()NS ()F NAI()NAI. LABOR RELAIO()NS BOAR)
first time on November 18. ] ] For this meeting, as in all
the following ones, Respondent was represented by Tor-
gove.12 As noted above, the Union's negotiating team
consisted of Crouch and the four returning janitors. Ad-
ditionallv, a mediator from the Federal Mediation and
Conciliation Service was present at all the meetings.
At the outset, Torgove explained in some depth Re-
spondent's financial plight. According to Torgove, Re-
spondent had a serious negative cash flow, short-term li-
abilities that exceeded short-term assets and a negative
net worth with respect to all assets and liabilities. Spe-
cifically, lorgove explained that Respondent was in de-
fault with the first mortgage lender and was then cur-
rently attempting to work out an arrangement with it.
Additionally, Torgove stated that Respondent was con-
tinuing to discover liabilities left over from the prior
management that exceeded their cash supply and, there-
fore, they had a constant and running battle with credi-
tors. Further, Torgove indicated to the Union some of
the other steps it was then undertaking in an effort to
savec the building. : These efforts included getting the
I'ublic Service Company to put tenants in individual util-
ity meters instead of common ones \whichi Respondent
paid and reneswed anid contitued efforts at renting the
unoc0cupi Ced apartenl lts i the comiplex. The meeting
ended wilh the suggestion by the Federal mediator that
the Union prepare a proposal for the next meeting.
The second negotiation took place on January 2, 1976.
At this meting, the Union orally presented a proposal
which provided for a -year contract with identical lan-
guage from the expired agreement with the sole excep-
tion of the wage provisions. The Union in its initial pro-
posal sought a 10-cent-an-hour wage increase to be re-
ceived April 1, 1976. Torgove answered by again reciting
Respondent's financial problems in a fashion similar to
what had been stated in their first meeting. Additionally,
Torgove discussed the contract which the Union had
with Prudential Systems, Inc. of Colorado who owned
and operated the Executive Tower Inn, herein called the
Executive Tower, a high rise office and motel complex
located in the same block and adjoining Brooks
Towers.14 According to both Torgove's and Crouch's
tiriioni I orgovec ipressed mle with his ahilit to recall ith sotme
degree of clarity the discussions ill the bargaining tlahle. Although his tes-
imllony Fir the mnos part is consistent with that of Torgole, Crouch, the
onlty other witness to testily regarding the negotiations, was less able to
recall wilh spccificity the details regarding this bargaining
t' It appears, based upon careful reading of the correspondence ex-
changed between orgosre and Crouch during Nosember and December
regarding Respondent's unsuccessful aempts to obtain from the niron
copies of collective-bargaininig agreements the Unlion had ith other em-
ployers im Ihe area, that Torgove may have inadvertently misplaced the
daite for the first session a week or two earlier than it actually iiccurred
tin ay evet it is clear tiha the first bargainlling sessioti did tlke place
durilg Ithe calendar year 178.
m While Attorney (iorsu h v: as presenl for soellc if nol ill o' the Jain
uary and Februalry sessiills, it appears Iliat lol-gose 5. al Respinlldenlt
chief spoikeslnallt all limes
' lorgove estitfied wvithout conltradiction tihait tlhese explanatios were
essitiallly Ihe saillT ones tha l had beenr rlade o Cr(uch during the lncgo-
tliallt iIn Jul)y and August flr the engineers' cotnract
'4 Ih conltracl for tie xecnutive 'rower was executed by he 'm-
ployer ad the niolln on Jatluary 5 1975, aid covered the periodl f )e-
ceniber 6, 174. o December 5, 1977 I'his agreement prsovided the 1ol-
ihlwg age scale effeclive II t)ecclber 6h 1974, 175 ad 19'7h, fr tihe
testimony, the Executive Tower is the most comparable
building in Denver to the Brooks Towers. 5
In light of both the Union's contract with the Execu-
tive Tower and its own financial problems, Respondent
requested a second proposal from the Union. 6 The par-
ties agreed to meet for the third bargaining session on
January 7, 1976."
At the January 7 meeting, the Union did not have a
second proposal prepared so each side caucused and Re-
spondent prepared, in writing, an offer which was pre-
sented to the Union. This proposal provided for the fol-
lowing changes from the expired collective-bargaining
agreement:
1. Deletion of the union-security and checkoff provi-
sions.
2. Increase in the probationary period from 30 to 90
days.
3. Deletion of two holidays and employee's birthday as
paid holidays.
4. Increase from 8 to 10 years the necessary length of
service required to earn 3 weeks' vacation.
5. Limit jury duty paid to a maximum of 10 days.
6. Limit the employer's contributions under the health
and welfare provisions to employees swith at least I year
seniority.
7. Deletion of rest periods.
8. Expansion of the management-rights clause.
9. A -year contract.
10. Change of job classifications simply to inspectors
anid housepersons, with a wage rate of $2.65 an hour for
inspectors, $2.55 an hour for new housepersons, and
$3.03 an hour for housepersons who had been employed
for more than an unspecified number of years.
Finally, Respondent's proposal provided that the
unfair labor practice charges/complaint regarding the
janitorial employees then currently pending before the
Board would be withdrawn.
Crouch disagreed on the deletion of the Union's secu-
rity and checkoff provisions; however, he did agree on
the I-year wait for health and welfare contributions. Ad-
ditionally, Crouch objected to the withdrawal of the
unfair labor practice charges/complaint allegations as re-
lating to the janitorial employees. The parties then brief-
ly discussed the concept of maintenance membership and
the cost of various life and health insurance plans. No
resolution was reached with regard to Respondent's pro-
posal and the parties agreed to meet again the following
week.
Regarding both the withdrawal of the unfair labor
practice charges/complaint and the $3.03-an-hour pro-
posed rate for experienced housepersons, Torgove testi-
inspector ad housepersonls., respectively: $2 6h, $2 35 $2 8X. 2.55 and
$3, $2.75
. Apparernlly , other high rise combinatioll office aid apartment
citmplex was then i existcnce in the Denver area
"; Crouch teslified tlat he did nor cnlsider the terms of the Executive
Il wer's contract as relcant tI thre I rooks liowers' negoiation since the
former'. contract 'Ais the first contracl on a lew huilding According
CTrouch. a "contrlct i like a haby II growvs each time You build on
what yu get and this being the first cnlracil it didn't have the goodies
tha a contractl, an older contract, ould have"
7 Additionally, at this llceeilg the parties agreed that the Union
would lnolt strike pCllel d g nlegotillati ls
760)
BROOKS, INC 7 1
fled that these two proposals were interrelated. During
this period of time, all parties were discussing, through
counsel, possible settlement of the outstanding complaint.
Suggestions were made by either the General Counsel or
counsel for the Union to settle the matter on the basis of
80 percent of the backpay due the striking janitorial em-
ployees by virtue of their unlawfully being denied rein-
statement upon request. Torgove testified that Respond-
ent could not afford a lump sum payment and as an alter-
native offered as settlement to pay an extra 48-cent-an-
hour increase in its wage proposal rate of $2.55 an hour
to those striking employees who ultimately returned to
work. This proposal was later rejected by the four em-
ployees at a meeting they held with Crouch prior to the
February 2 bargaining session. The employees apparently
decided they would rather take their chances on eventu-
ally receiving a lump sum payment ordered by the Board
in lieu of the extra 48-cent-an-hour increase in wages.
On January 12, the parties met for the fourth bargain-
ing session. During the course of this meeting, the parties
reached agreement on the following items in Respond-
ent's January 7 proposal: The increase in the probation
time, deletion of the three paid holidays, increase in the
time necessary for the 3 weeks' vacation, limitation on
jury duty, deletion of breaktime, contract length of I
year, and a change in the job classifications from five
separate classifications as set forth in the expired agree-
ment to simply two job and pay classifications for house-
persons-those with experience and those without. Items
that were still unresolved by the conclusion of this meet-
ing were union-security and checkoff provisions, Re-
spondent's trust fund contributions, the pending NLRB
charges/complaint, the management-rights clause, and
wages.
Respondent, again during this meeting, reviewed the
subject of wages vis-a-vis its financial situation. During
the course of this or one or the two prior January meet-
ings, Respondent offered to open its books to the Union
to verify its financial situation. Crouch declined and ex-
plained at the hearing his reasons for failing to exercise
this right as follows:
I would consider that that would be a waste of
time. It is very rare that I have negotiations with
the company that don't cry poor mouth . . . just
about every negotiation I have you know the com-
pany contends that they are losing money and they
are going broke. I had no reason to believe that
Brooks Towers would be any different from any
other employer especially based on the observation
of the contractors that were coming into the build-
ing, repairs that were being made on the building at
that time it seemed to me that if they were that
hard up they certainly wouldn't be spending that
kind of money. "
'z Torgoe tetified that, during this period of time. Respondent u as
repairing a nonoperative air-conditioning system at a cost orf $5(0,(X, cor-
reeling the 'I V antenna at a cost (if a few thousand dollar, and perform-
ing normal maintenance such a rcpair of appliances and pailling sacall
apartmenls Additionally, Recpondelt nmay ha,e been repairing and redo
ing the sidewalks at this linle
Although Crouch at least in part based his belief that
Respondent was not in financial trouble on the basis of
the repairs that Respondent was then engaged in, he
never at any time during negotiations raised this subject.
The parties next met on January 15 for the fifth bar-
gaining session at which time they discussed all outsltanld-
ing issues except wages. Agreement was reached on a
modified union-security checkoff clause (see subsec A
above) and apparently Respondent's trust fund contribu-
tions.
On February 2, the parties met for the sixth and final
time. Torgove ent through a schedule of wages re-
ceived by janitors employed at five local building conl
plexes including Executive ower. l: Based on the infor-
mation Torgove obtained from these employers, lihe
argued to the Union that the janitors employed by Re-
spondent were the highest paid in the Denver area. Tor-
gove cited that these other employers paid their janllitll-
al employees wages ranging from $2.15 an hour to 2s55
an hour. "° Additionally. Torgove informed Crouch thui
a major portion of Respondent's income camle front
apartment rentals and that, therefore, Responldent v, as
for all practical purposes an apartment house. Forgoc
further stated that matny apartment houses were merel!
paying the Federal minimum wage and that Responideint
was offering something more than that. Crouch acknol I-
edged to Torgove that local apartment houses were
indeed paying the minimum wage for their janitors.
At this February 2 meeting, the Federal mediator
noted that the unfair labor practice hearing had alread
been held. Respondent therefore withdrew its offer to
settle the charges filed with respect to the janitors' rein-
statement.
Respondent then raised its outstanding wage offer
from $2.55 an hour to either S2.60 or $2.70 an hour 2
plus the $62 a month health and welfare contribution for
all janitors with more than 44 months' seniority. 2 2 After
a union caucus, Crouch returned and made a counter-
offer of $2.75 an hour for employees with 44 months' se-
niority and $2.55 an hour for new employees.
Crouch testified that, during the caucus with the four
member employees, they indicated that they would
accept whatever offer they could get from Respondent
'" The other four employecrs ere three bank building,, anld .I Ilrg
hotel he banks named were unorganized and the hotel .a, apparenitl
organized by aeother labor organi/ation
Z° Crouch testified that he preselnled l uring negotialions a career ser,-
ice survey prepared by the Count of Den'er hich allegedll 5 ho cd
that. of the approximalely 44 enploy crs included in the urc. the prr-
vailing rate for janitors was $3 45 an hour
Torgosle denied that Crouch during negotialions Aith the ailtors, ever
presented a counlt ursey indicating a prevailing rate He did idlit thtll
Crouch offered such a uirxe dluring the Iegotiationts for Ihe rnailc -
nance employees In ati enl. Respondent argues that any such ursc
would be insahlid since it ould inc-lude lanlitor, employedl h h, in-
dustries such as packing horises I need nol rsols e this conflict III tie
testinony and svill for the purpo,ses of this Decision treat Cro,u h', tesll-
monly on this particular politn ill the light mol faorable tlo t f (iCniril
Co unsel
' iorgovce initially letified hal Respondent rised thls fftr to 52 0(
an hour Her. in his nexrl cten le he ited this figure ia, 2 i111
hour It is nolt lear hlich figure i, corrTcC
All four of the rrtlailillg firmier mnpl(!ce' iho, Cr1nlpr lMc Ic
Unilion's nieglatiron tinlal hald n rilre thani 44 nioniths' sllitor
ROOKS, INC ifI
7(2 I).tECISI()NS ()F NATIONAl L.ABOR REI.ATI()NS )ARI)
since they had already lost 3 months' wages, had been
unable to get unemployment compensation, and could
not afford to take another strike. Crouch testified that
neither during this caucus nor in his previous discussions
during meetings with the four employees was the subject
of the Employer's financial condition ever discussed.
While, as noted above, Crouch's memory regarding
the negotiations was generally vague and imprecise, his
testimony regarding the basis or rationale upon which
employees explained to him why they would accept Re-
spondent's proposals was quite clear and convincing. Ad-
ditionally, it was entirely consistent with his earlier
stated belief that Respondent was not facing a financial
crisis. 2
Respondent accepted the Union's counterproposal and
on February 17 the new l-year contract covering the
period February I, 1976, to February 28, 1977, was ex-
ecuted 24
fl. NAI YSIS ANI) CONCLUSIONS
A. The Janitors' VNegoliations
The General Counsel in essence contends that the
newly discovered evidence establishes that Respondent
did not bargain in good faith with the Union in the nego-
tiations which ultimately led to the execution of the new
collective-bargaining agreement for the janitorial em-
ployees. Additionally, the General Counsel contends that
this subsequent conduct constitutes further evidence of
Respondent's bad faith in its prior dealings with the
Union over the maintenance employees. Contrary to
these contentions, I am not persuaded that the evidence
regarding Respondent's conduct at the bargaining table
from mid-November 1975 to mid-February 1976 estab-
lishes any such bad faith. 25
Respondent from the very outset of the negotiations
informed the Union of its precarious financial situation.
That the specifics of this condition were explained in
some detail on several occasions prior to the date agree-
ment was reached is not in dispute. Respondent even of-
fered the Union the opportunity to review its financial
records to satisfy itself that Respondent was neither fa-
bricating nor overstating the severe economic problems
it faced.
The Union did not avail itself of this opportunity to
review Respondent's financial records. Additionally, no
: ' fhis inding, of course, is il no way indicative that this belief was
'"re.linahly" held in these circumstances.
24 lorgove lestilied that, prior to his meeting. Respondenl's resident
manager inlformed him tihat the four janitors were doing all exceplioluall
g (d iJoh and i recogliioln of their performance, Respondent agreed to
the tIion'rls cunlerprioposal to raise the rate to $2.75 an hour
's In reaching this colncliusltn, I have excluded from cotsldelalion the
tacli that Rspondelit unlawfully refused the janitors' alid unconditional
iffer of reinlstallellt for smnie 3 1/2 months. ]The court, in remanlding
ilth case fr the purpose of taking this new evidence, was fully cognizant
i' Respondenll' prior refusal Moreoer. an even more drastic situaliton
wa;s presented in the negotiationls with the maintenance employees where
Respondent unlawfulls refused their unconditional offer to returni to
work while those negotiations were in progress In iew of the above,
anid ino finldirg,s and coTncIISIoims with regard to the issue of whether Re-
spilnldent was ever hable on coninc the I.'rion hau its financial plighr justi-
liid a a ug. ardutn blr ih/ junifor, I need notl reach the speci fic quest ion
ol whether Respee',s tien ctploed
Respondent's treatnlent of its new lonultlionl employees
vis-a-eis its returning strikers does not demonstrate a dis-
criminalory or antiunioni motivatlion.
B. EJJ'ct of the Janitors' Negotiols on Mirlitenocc
,N'egoua tiol.
Reaching this conclusion does niot by itself relie\e me
of further responsibility with regard to the underlying
question of whether Respondent violated Section 8(a)(5)
in its bargaining over the maintenance employees, The
court clearly stated that the new evidence would have a
great bearing on the question of Respondent's good faith.
However, the court did not hold that a resolution favor-
able to Respondent with respect to the janitors' bargain-
ing would compel the Board to reverse its findings and
conclusions on the ultimate question. I interpret the
court's holding as merely instructing the Board to fully
and carefully reconsider the evidence of the niegotiations
with the Union over the maintenance employees in light
of this new evidence.
In any event, it is respectfully submitted that the pre-
ferred evidence does not factually hase the effect the
court assumed it would have.
The court, in considering the import of the evidence
as contained in Respondent's offer of proof, assumed
that, by virtue of the Union's ultimate agreement to a
contract which provided for a substanltial age aid
benefit reduction, the Union had thereby been conlvinced
that Respondent's economic plight justified such relief
The weight of the evidence does not bear out this s-
sumption.
Crouch. the Union's business manager and chief nego-
tiator, testified that at no time did he accept or believe
that Respondent in fact faced a serious financial condi-
tion. e, in effect, ignored Respondent's representations
in this matter, as well as the offer to review its records,
as so much bargaining posturing by an employer , ho
had successfully withstood a strike. Instead, Crouch arltl
apparently the four members of the bargaining coninit-
tee chose to rely on their on observationls that Re-
spondent was spending considerable amounts of io(lnce
in the repair and renovation of the complex. The ax isdoi
or the reasonableness of Crouch's belief is niot the issue,
merely the fact that such a belief was held and apparent-
ly shared by the employees. In accepting Respondenlt's
eventual proposal of S2.75 an hour, the employees were
apparently motivatecl niot by a realization that Respond-
ent could not pay nmore hut by a realization that Respond-
ent would not pay more.
As discussed above, the record evidence demonstrates
that Respondent asserted in good faith its economic pro-
posals when dealing with the Union over the janitors.
Applying the law of the case and ascribing this same mo-
tivation to Respondent in its negotiations with the Unrion
over the maintenance employees does not, conltrar to
Respondent's contention, legitinmatize its ciduct at the
bargaining table. At the same time that bargaining oer
the maintenance employees as taking platce, Respond-
ent was comlilrtting ctserious uifaill labor practice, , hichl
directly ill tlpecl cdl a I 'lll'llt lis anttlT hair-
gaiing. In this egard. Rspullett a hild arlter l threat-
ROKS. INC. Th3
764 I)FCISIONS ()OF NA'II()NAL LABOR RELATIIONS BOARD
ened that an employee who went on strike would never
work again for Respondent. (2) initially engaged in dila-
tory behavior and then outrightly refused to bargain for
a 5-day period, (3) threatened to file a groundless decer-
tification petition at the same time it eventually agreed to
commence bargaining, and (4) imposed unlawful condi-
tions on the reinstatement of unfair labor practice strik-
ers.
In the following discussion I will focus only on the
issue of Respondent's refusal to reinstate the striking
maintenance employees during the bargaining except on
the condition that the Union agree to a contract accept-
able to Respondent. Respondent contends that this con-
duct was justified by the economic dilemma it was
facing. While this economic situation may have been so
serious as to justify its proposing a reduction in wages,
no evidence was offered which would establish that Re-
spondent had such a compelling and immediate econom-
ic necessity that would justify its continuing refusal
during negotiations to reinstate the entire bargaining unit
except on its own terms.
The Board, in its initial Decision in this matter, 228
NLRB 1365, 1368, fn. 16, stated:
Respondent's recourse was, of course, to attempt
to get the Union, at the bargaining table, to agree to
reduced wages for unit employees and, failing that,
to bargain in good faith to impasse at which point it
could lawfully institute those wage rates last offered
the Union as a good-faith basis for settlement.
In its brief to the court, Respondent answers the Board
and argues:
This solution ignores the realities of the situation as
it existed at that time. To bring the maintenance
workers back at a salary level higher than the em-
ployer could continuously maintain without any in-
dication that the Union would agree to any wage
reduction (resulting in the employer being forced to
implement a wage reduction without agreement)
could very well have engendered bitterness and
consequent action on the part of these persons in-
cluding returning to the picket lines and disruptive
conduct in the building itself. To require this kind
of useless and potentially dangerous act is contrary
to common sense and the National Labor Relations
Act.
Respondent's scenario is highly speculative and smacks
of unwarranted crystal ball gazing. It is at least as likely
that the maintenance employees, observing the apparent
ease with which Respondent secured temporary replace-
ments at reduced wages to fill in during the strike, would
have, as in the case of the janitorial employees 8 months
later, eventually reached an agreement mutually accept-
able to all. From this vantage point of time, one can only
speculate as to what would have happened had Respond-
ent met its statutory duty. Any doubts in this area must
be resolved against Respondent who was the party
whose conduct created the situation.
Carrying Respondent's arguments one step further, one
could imagine that an employer faced with a similar fi-
nancial situation could merely assume that its employees
would never accept a wage reduction and, rather than
waste the time in fruitless negotiations that would inevi-
tably lead to an impasse, simply chose to shortcut this
"useless and potentially dangerous" procedure by dis-
charging its employees and replacing them with individ-
uals willing to work at lesser rates.
Mr. Justice Stewart's concurring opinion in Fiberboard
Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 224-225
(1964), is instructive here:
Analytically, this case is not far from that which
would be presented if the employer had merely dis-
charged all its employees and replaced them with
other workers willing to work on the same job in
the same plant without the various fringe benefits so
costly to the company. While such a situation might
well be considered a Section 8(a)(3) violation upon
a finding that the employer discriminated against
the discharged employees because of their union af-
filiation, it would be equally possible to regard the
employer's action as a unilateral act frustrating nego-
tiation on the underlying questions of work scheduling
and renumeretion, and so an evasion of its duty to bar-
gain on these questions, which are concededly sub-
ject to compulsory collective bargaining. [Emphasis
supplied.]
In the case at bar, Respondent knew that, to reach an
agreement acceptable to it, it would have the difficult
task of convincing the Union to accept a substantial re-
duction in wages and benefits. When the employees
struck and later offered to return, Respondent was given
the tool it thought it needed to obtain a favorable con-
tract. Respondent seized upon the fact that the entire
bargaining unit was in essence on an involuntary strike as
its edge in the negotiations. Continued bargaining while
Respondent operated at a lower cost by the use of tem-
porary replacements would have the natural consequence
of unfairly strengthening Respondent's bargaining posi-
tion with the concomitant loss of bargaining power by
the Union. In these circumstances, no meaningful bar-
gaining over wages was possible so long as the reinstate-
ment of the unfair labor practice strikers was used as a
bargaining bait by Respondent to force acceptance of its
terms. Florida-Texas Freight, Inc., 203 NLRB 509, 510
(1973), enfd. 489 F.2d 1275 (6th Cir. 1974). It follows
therefore that no good-faith impasse could exist since the
breakdown in the negotiations was at least in part attrib-
utable to Respondent's unlawful conduct in failing to re-
store the status quo ante. See Wayne's Olive Knoll Farms,
Inc., d/b/a Wayne's Dairy, 223 NLRB 260, 265 (1976).
In light of the above and based on the record as a
whole, I conclude that a valid impasse in the mainte-
nance negotiations did not exist and that Respondent's
conduct in treating the Union's rejection of its "final
offer" as a revocation of its earlier unconditional offer to
return to work was without merit.
BROOKS, INC 7t5
Recommended Order
I recommend that the Board reaffirm its findings and
conclusions with regard to the bargaining over the main-
tenance employees and the appropriate remedy ordered
therein.