Central Management Co.

National Labor Relations Board - Board Decisions

Aug 17, 1994

314 N.L.R.B. 763 (N.L.R.B. 1994)

763
314 NLRB No. 125
CENTRAL MANAGEMENT CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge, at sec. II, par. 1, incorrectly found that the named
Companies are a joint employer. See, e.g., NLRB v. Browning-Ferris
Industries of Pennsylvania, 691 F.2d 1117 (3d Cir. 1982), in which
the court extensively discussed the difference between single and
joint employers.
3 For unexplained reasons, Respondent signed five copies of the
agreement that expired on June 21, 1991.
4 All subsequent events occurred in 1992.
Fairhaven Properties, Inc., Myron Nelkin d/b/a
Central Management Co., Fairhaven Apart-
ments #1, Inc., Fairhaven Apartments #2, Inc.,
Fairhaven Apartments #3, Inc., Fairhaven
Apartments #4, Inc., Fairhaven Apartments #5,
Inc., Fairhaven Apartments #6, Inc., Fairhaven
Apartments Syosset, Inc., and Fairhaven Main-
tenance and Construction, Inc. and Local 32B-
32J, Service Employees International Union,
AFL–CIO. Cases 29–CA–16346, 29–CA–16382,
29–CA–16555, and 29–CA–16808
August 17, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On April 26, 1993, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent and the General Counsel each filed excep-
tions and a supporting brief, and the Respondent filed
an answering brief to the General Counsel’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions only to the extent consistent
with this Decision and Order.
After a full review of the facts and the relevant law,
we have, in summary, made the following decisions.
We find that the named Respondents are a single em-
ployer, not a joint employer as found by the judge. We
adopt the judge’s finding that the Respondent’s solici-
tation of employees to abandon the Union was an un-
lawful interrogation, but find that it also constituted an
unlawful inducement to abandon the Union and an un-
lawful attempt to bypass the Union. We find that the
strike was an unfair labor practice strike from its in-
ception. We adopt the judge’s finding that the Re-
spondent unilaterally ceased making benefit funds con-
tributions. We modify the judge’s finding that the Re-
spondent unlawfully refused to furnish the Union with
financial information. We adopt the judge’s finding
that the Respondent unlawfully delayed furnishing the
Union with the names and addresses of replacements.
We adopt, with additional reasoning, the judge’s find-
ing that the Respondent threatened picketing employ-
ees with physical harm. Finally, we reverse the judge
and find that the Respondent engaged in surface bar-
gaining, reverse the judge’s finding that the parties
were at impasse, and enter an appropriate remedy and
Order.
The facts are largely undisputed and are for the most
part fully set forth in the judge’s decision; what is dis-
puted are the conclusions to be drawn from the facts.
Because we are, however, substantially modifying the
judge’s conclusions, we shall restate the facts to make
clear the factual basis for our decision. Additional de-
tails are provided in our discussion of the separate
complaint allegations.
I. BACKGROUND FACTS
A. Single Employer
The complaint alleges, the answer admits, and we
find that the Companies named in the case caption are
a single employer.2 The parties do not dispute unit
scope or composition; we find that the appropriate and
recognized collective-bargaining unit comprises all
service employees (including superintendents, assistant
superintendents, handymen, and porters) employed by
the Respondent at the seven named apartment com-
plexes.
B. Past Practice
The normal practice for negotiating new bargaining
agreements has been for the Service Employees Inter-
national Union to reach a pattern agreement with an
association of New York City apartment owners. The
Union then formulated a proposed pattern agreement
for Long Island apartment owners based on the New
York City agreement but with somewhat lower wages
and benefits. During the latest negotiations, a New
York City pattern agreement had been reached some-
time in 1991, and the Union sent the proposed pattern
Long Island contract to the Respondent. Although the
Respondent in the past had signed the proffered Long
Island pattern agreement,3 this time, after several
months of no definite response, the Respondent re-
quested individual bargaining.
C. First Session
The parties first met on January 19, 1992.4 Attorney
Ira Sturm was chief spokesman for the Union; also
present were union and employee representatives. Vice
President Robert Lippolis was chief spokesman for the
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Our findings regarding the contract negotiations rely, as does the
judge, primarily on Sturm’s extensive and detailed testimony.
Sturm’s and Frank’s testimony do not differ in material respects, and
the judge credited Sturm’s testimony where it conflicted with
Lippolis’.
6 In sec. II, par. 7, of his decision, the judge incorrectly stated that
these events occurred before negotiations started. That paragraph
also incorrectly stated that the events occurred in 1991, rather than
1992.
7 On February 13, the Union filed an unfair labor practice charge
regarding the February 6 incident.
Respondent at this and the next two sessions; also
present was Henry Nelkin, another official of the Re-
spondent. Although, beginning during the fourth ses-
sion, Attorney Neil Frank became the Respondent’s
chief spokesman, Lippolis and Nelkin were present for
most, if not all, bargaining sessions.5
During the first session, the Respondent made five
major proposals: a 1-year wage freeze, the right to
subcontract, reduction by half of the number of free
apartments given superintendents and assistant super-
intendents, the right to reduce staffing from the current
level of 27 or 28 to 24, and no retroactivity. The
Union took the position that the Respondent should
sign the pattern agreement.
D. February 6 Events
On February 6, between the first and second bar-
gaining sessions,6 Supervisor Anton Vuklevic asked
groups of employees in at least two of the Respond-
ent’s locations to sign a paper stating they wanted to
get rid of the Union. Vuklevic told employees that, if
they got rid of the Union, their wages and benefits, ex-
cept for the pension plan, would remain the same. The
employees refused. The judge correctly found that the
Respondent did not put on any witnesses to rebut this
testimony. The judge, however, failed to find that
Henry Nelkin was present for management at each of
these employee meetings and that the witnesses identi-
fied 15 employees (over 50 percent of the unit) by
name as being present.
E. Second Session
The second session was held on February 10. The
Respondent reiterated its five points. The judge cred-
ited testimony that Lippolis said the Respondent was
losing money and could not afford to pay what they
were paying. Sturm, for the Union, asked for the Re-
spondent’s financial records. The parties also discussed
reduction in staffing. Lippolis said that the Respondent
wanted a reduction to 24 employees from the current
staff of 27 or 28. Sturm stated that all the employees
were busy and asked if the Respondent was going to
contract out to compensate for reduced staff. Lippolis
said that the Respondent did not intend to contract out
any bargaining unit work. He, however, would not
agree to a no-subcontracting provision.
F. Third Session
At the third session, held February 20, the parties re-
iterated their positions. Lippolis stated that the Re-
spondent wanted to reduce the staff to 24 employees.
He also proposed the elimination of major renovation
and construction work. Sturm said the Union probably
would have no problem with that because it was not
traditional bargaining unit work. Lippolis additionally
stated that the Respondent might be willing to sign the
pattern agreement if the concessions the Respondent
sought were put into a rider. Also, the Union notified
the Respondent of the possibility of a strike. At this
session, Sturm demanded that the Respondent allow
the Union to examine its financial records, including
the receipts and expense journals for the past 6
months. February 24, the following Monday, was set
as a deadline for the Respondent to answer the de-
mand. The Respondent at no time furnished the Union
with its books or other specific financial information.
G. The Strike
On February 25, the Union called a strike. The unit
employees at the Hicksville complex were not asked to
strike and continued to work. The Union claimed the
strike was an unfair labor practice strike based on the
Respondent’s February 6 meetings with employees.
According to the uncontradicted testimony of James
Edwards, a union business agent, he went to each
apartment location prior to the strike and spoke to unit
employees as a group. He informed them of what had
happened in negotiations and explained that, because
the Employer had gone around with the February 6
paper to oust the Union, if the Union called a strike,
it would be due to the Employer’s attempt to break the
Union. He further explained that in an unfair labor
practice strike employees could return to work, but if
it were a normal, economic strike, their jobs would not
be as protected.7
Employee witnesses corroborated Edwards’ testi-
mony that they were aware before striking of the Re-
spondent’s February 6 conduct. Louis Quintana testi-
fied on cross-examination that he went on strike be-
cause of the unfair labor practice, problems in contract
negotiations, and the Union informed him the Em-
ployer was not bargaining in good faith. Although he
was not present the day the strike was explained, Mi-
chael Walbeck testified that fellow employees told him
that the reason for the strike was the Employer’s letter
to sign the Union away. In addition, Pedro Correa tes-
tified that one of the reasons he went on strike was be-
cause of the Employer’s note that employees did not
want any further Union.
765CENTRAL MANAGEMENT CO.
8 Because contributions to the education fund and the prepaid legal
plan had been suspended for all employers, the Respondent had at
that time no obligation to contribute to those funds.
9 In its brief in support of exceptions, the Respondent states that
it withheld contributions to the funds ‘‘as a bargaining tactic.’’
10 The record shows that the meeting was held on April 15, not
April 14 as found by the judge.
11 Frank’s April 21 letter to Sturm reiterated this position, but in
more diplomatic terms.
Also, Edwards testified that throughout the course of
the strike the Union used only its ‘‘unfair’’ picket
signs, not its ‘‘on strike’’ signs. Similarly, leaflets
handed out by the strikers stated the Employer ‘‘un-
lawfully intimidated our members in an attempt to
have them disavow their Union.’’
H. Fourth Session
On February 21, the Respondent retained Neil Frank
to conduct its negotiations. Frank telephoned Sturm
and arranged a bargaining session for February 27. At
that meeting Frank presented a list containing 43 num-
bered proposals. The union representatives briefly ex-
amined the list and left within 5 minutes.
Of the 43 proposals, 8 related to or expanded on the
5 proposals the Respondent made during the first 3
bargaining sessions, 2 rejected new provisions sought
by the Union, 10 rejected provisions the Union sought
to carry over from the prior agreement, and 15 would
reduce or eliminate established or proposed wage and
hour benefits. Of the remaining items, two involved
contract provisions that the Respondent stated were in-
applicable and one that the Respondent did not under-
stand, one proposed changing the arbitration pro-
ceedings, one stated second and third year wages were
open, and one agreed to revised contributions to the
health and welfare fund. The remaining two items are
of special relevance to this proceeding. Item 1 on the
list stated:
The Company does not claim inability to pay. It
makes these proposals in view of the recession,
the affect [sic] on its ability to rent apartments to
make a fair profit, and the availability of people
willing [sic] to work at current wages. [Original
emphasis.]
Item 4 stated:
Company will not checkoff dues or contribute to
Welfare Fund, Pension Fund, Education Fund,
Pre-Paid Legal plan or Annuity Fund until a con-
tract is agreed to.
Among the proposals, the Respondent sought to elimi-
nate the following: restrictions on subcontracting, the
employees’ limited right to strike if unit work is per-
formed by nonunit personnel, daily overtime, employ-
ees’ entitlement to 2 days off per week, the require-
ment that hours shall not be reduced, and the provision
that the employer shall strive to provide 16 hours off
between shifts.
I. Cessation of Funds Payments
In accord with item 4 on the list of 43 proposals,
the Respondent, on February 27, ceased making pay-
ments to the welfare, pension, and annuity funds for all
employees, including the five Hicksville employees
who never went on strike.8 The Respondent also failed
to make the fund payments for those employees who
subsequently abandoned the strike and returned to
work. The Respondent’s chief negotiator, Frank, admit-
ted that it did so to pressure the Union by starving the
funds.9 In May, the Respondent restored, retroactively,
payments to the welfare (health) fund for those, and
only those, employees who never struck; returning
strikers were put on the Respondent’s own health plan.
J. Fifth Session
After some intermediate correspondence, the parties
next met on April 15.10 Sturm, the Union’s chief
spokesman, asked why the Respondent continued to in-
sist on a wage freeze when it no longer claimed inabil-
ity to pay. Frank responded that the rent rolls were
down. Frank said that it was not that the Respondent
could not afford a raise, but that it just did not want
to pay it. Frank testified that he said, ‘‘[I]f we put an
ad in the paper, we would have 500 people lined up
out at any of these projects looking for those jobs. And
those people are getting paid, they would work for a
hell of a lot less. And they would work for a hell of
a lot less benefits. So why should we pay much more
than what I believe and the Company believes is the
market rate.’’11
At that meeting Sturm asked for a list of the names
and addresses of the replacement employees. Frank re-
fused. Sturm requested information about the substitute
health plan, which the Respondent furnished in due
course. Frank stated that retroactivity applied to the en-
tire contract, not just to wages as Sturm had believed.
They also briefly discussed checkoff.
Frank stated that the Respondent wanted to reduce
the employee complement to 18 rather than the pre-
vious request for a reduction to 24. Frank rejected
Sturm’s suggestion that the staff reduction be done
through attrition. In response to Sturm’s question,
Frank said that none of the bargaining unit work would
be contracted out. Nelkin, however, shook his head.
After Frank and Nelkin conferred, they told Sturm they
wanted to preserve the option to subcontract unit work.
Sturm complained that the proposal to eliminate all re-
strictions on subcontracting differed from the discus-
sions at earlier meetings, which had limited subcon-
tracting to construction work and in the context of a
fixed number of unit employees. The parties then
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Also, after Sturm’s explanation, Frank dropped the item from
the list that the Respondent did not understand.
13 Frank testified without contradiction that the Respondent’s pay-
ments were retroactive.
14 This was one of the items in the list that the Respondent
claimed was inapplicable.
15 The ground rules for the negotiations required approval by the
Union’s president.
turned to discussing the contracting out of construction
work.
Sturm next asked Frank to go through the list of 43
proposals to state what the Respondent really wanted.
After Frank had stated a number of items, Sturm inter-
rupted to ask what the Respondent really wanted.
Frank said that they wanted to know if the Union was
willing to modify the pattern agreement. Sturm replied
that the Union had started with modest proposals and
that he wanted to hear what the Respondent wanted
before he made concessions. Frank continued but did
not finish listing the items the Respondent wanted.12
K. Sixth Session
At the next session, held on May 5, the Respondent
stated it would restore welfare fund payments for those
employees who never struck.13 The parties briefly dis-
cussed profits. Frank stated that, although the Re-
spondent was operating at a profit, it was lower than
the previous year. Frank refused to disclose the num-
bers. Frank, while holding up some papers, said he had
some new proposals but that he was not going to sub-
mit them until the Union made a counterproposal.
Sturm replied that he had started negotiations in good
faith, that there had been a few serious but solvable
problems on the table, that the Respondent had added
numerous other items, and that, if Frank had a new
proposal, he should put it on the table to see if they
could make some progress. Frank replied that he was
not going to present his proposal unless the Union
modified its position. Sturm replied that he could do
the same thing—come in with a two-inch thick set of
proposals—but he had not. He said he came in with
minimal proposals and that he wanted to discuss the
real issues, the four or five original proposals. Sturm
said that to present proposals in this posture would re-
quire him to bargain against himself. The session
closed with discussions about welfare fund payments;
Frank agreed that the Respondent would pay at the
current rates.
L. Withdrawal of Some Proposals
By letter dated May 29, the Respondent withdrew its
proposals to eliminate its responsibility for unpaid
dues; to amend the no strike clause; to delete the re-
quirement that the Respondent pay the wages of the
grievant and one witness at arbitration; to eliminate the
Employer’s duty to strive to provide 16 hours off be-
tween shifts; to pay straight time, rather than time and
a half, for holiday work; and to eliminate time off to
vote. By letter dated July 23, the Respondent addition-
ally withdrew proposals to eliminate the employee’s
birthday as a holiday; to eliminate the provision requir-
ing vacancies to be listed with the state employment
bureau; and to eliminate the agreement to negotiate
over any provision changed by government decree.14
M. Alleged threat to Strikers
The judge credited evidence that on July 18 Henry
Nelkin recklessly drove a pickup truck over a curb,
passing closely to where Pedro Correa was picketing.
The judge, however, failed to describe the testimony
supporting this finding.
Pedro Correa testified that, when he was picketing
at the Woodbury apartments on July 18, he heard a
sudden noise about 11:45 a.m., saw Nelkin in a pickup
truck on the grass and the sidewalk, and had to move
his chair to avoid being hit. Michael Walbeck, another
striker, testified that on July 18 Nelkin jumped the
curb with his white Toyota pickup almost hitting the
picketing employees and causing Correa to jump or
fall back.
Instead of producing Nelkin, the Respondent called
Lippolis who testified that he took a white Toyota
pickup that Nelkin usually drives to a repair shop on
July 18 at 8:30 a.m. and that the repair statement indi-
cated the truck was picked up the following Monday,
July 20. He also testified that he and Nelkin toured
properties the rest of the day in his black Pathfinder.
The Respondent also called John Chementi, a super-
intendent at Woodbury apartments. Chementi testified
that Nelkin could not have jumped the curb without
causing property damage and that he received no re-
ports of and observed no property damage on July 18.
N. Seventh Session
After Sturm had a conversation with Frank in which
Frank stated that he was serious about resolving their
problems, the parties agreed to meet on August 11.
They began that session by discussing staffing at
length. Frank said that at that time they had 18 rank-
and-file employees (but later said it might be as high
as 21) and that was the staffing they wanted. Sturm
said that the Respondent had had 27 employees and
that they had been kept busy. Frank admitted there had
been work for everybody. Frank said they had seven
replacements and, if they resolved the problem, the Re-
spondent would be willing to take back seven of the
strikers. This would have resulted in three strikers not
being immediately reinstated. At that point, Sturm of-
fered to reduce the staffing to 21, so all the strikers
could be reinstated, and said he would be willing to
go to the Union for permission for such a reduction.15
Frank said that he wanted only 18 employees.
767CENTRAL MANAGEMENT CO.
16 This was the other item that the Respondent had claimed was
inapplicable. (See fn. 14.)
The parties also discussed subcontracting of con-
struction work. Sturm said that the only way he could
get it approved by the Union and achieve the same re-
sult was to change the recognition clause to exclude
this type of work. Frank rejected this in favor of
changing the no-subcontracting clause. The parties also
briefly discussed taking away free apartments for as-
sistant superintendents. Sturm expressed concern about
assistant superintendents being on call. Frank said that
only the superintendents would be responsible for
these emergency calls. The meeting closed because
Frank had to be elsewhere.
O. Final Session
The final session was held on August 20. Sturm
opened the meeting by asking for the names of the
subcontractors performing construction and renovation
work and the rates they paid. Sturm took the position
that the work remained bargaining unit work, which
entitled the Union to the information. Frank replied
that he would take it up with his client.
After a break, Sturm asked Frank to tell him exactly
what was important to the Respondent. Frank replied
as follows: the wage freeze; subcontracting; no check-
off or fund contributions, except welfare; no retro-
activity; contract to be dated when signed; substitute
the American Arbitration Association or the Federal
Mediation and Conciliation Service for the office of
contract arbitration; amend the subcontracting clause to
permit major repair work; eliminate the cost of living
adjustment; eliminate the increase in the meal allow-
ance; rejection of Union’s language on paternity leave;
no free apartments for assistant superintendents; rejec-
tion of the establishment of a committee to study self-
insuring disability and unemployment; eliminate the
perfect attendance bonus; no increase in contributions
to the legal and training funds; objection to wages for
the super rider (special wage premiums for and other
provisions for superintendents); and negotiation of the
second and third year wages.
Sturm asked Frank what the problem was with pa-
ternity-maternity leave as it was a no-cost item. Frank
replied it was a new benefit and he did not want to
give it. Frank testified that he said, ‘‘We don’t want
to give you anything new, I mean that it is not my
purpose of being here to give you more, my purpose
is to give you less.’’ After a lengthy caucus by the
union representatives, Sturm told Frank the Respondent
was just wasting their time. The union representatives
then left.
By letter dated September 30, the Respondent belat-
edly furnished the names and addresses of the replace-
ment employees and withdrew most of its proposal on
the sale or transfer of buildings and its proposed elimi-
nation of the maintenance of wage differentials.16
II. DISCUSSION
A. Alleged Solicitation to Abandon the Union
We agree with the judge that the Respondent coer-
cively interrogated employees in violation of Section
8(a)(1) of the Act when its supervisors on several oc-
casions on February 6 solicited employees to sign a
petition to oust the Union. The Respondent has not ex-
cepted to this finding. We additionally find that the su-
pervisors’ activities constituted an unlawful solicitation
of employees to abandon the Union, a classic violation
of Section 8(a)(1) of the Act. See, e.g., Medo Photo
Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944).
Contrary to the judge, however, we find that the Re-
spondent, through its supervisors’ activities, also vio-
lated Section 8(a)(5) and (1) of the Act by bypassing
the Union in an attempt to seek to deal directly with
the employees. Between the first and second bar-
gaining sessions, the Respondent’s supervisors, in so-
liciting employees to abandon the Union, offered the
employees a continuation of the existing terms and
conditions of employment, except for pension benefits.
In contrast, during the first bargaining session, the Re-
spondent made different proposals to the Union, in-
cluding a wage freeze and a reduction in staff.
Contrary to the judge’s statement in footnote 6 of
his decision, we find that the holding in Schmidt-Tiago
Construction Co., 286 NLRB 342, 364 (1987), is on
point. It is well settled that the Act requires an em-
ployer to meet and bargain exclusively with the bar-
gaining representative of its employees, and that an
employer who bypasses the bargaining representative
to make offers regarding the terms and conditions of
employment directly to employees violates Section
8(a)(5) and (1) of the Act. Medo Photo Supply Corp.
v. NLRB, supra at 683–684; Allied-Signal, Inc., 307
NLRB 752 (1992). It is not necessary that the em-
ployer actually bargain with the employees. The ques-
tion turns on whether the employer’s direct solicitation
of employee sentiment over working conditions is like-
ly to erode the union’s position as exclusive represent-
ative. Modern Merchandising, 284 NLRB 1377, 1379
(1987). Here the Respondent made an offer directly to
employees about working terms conditioned on the
employees’ abandonment of the Union. Clearly, such
an attempt to deal with the employees was intended to
undermine the Union as the employees’ exclusive bar-
gaining representative. Accordingly, we find that the
Respondent unlawfully sought to bypass the Union in
violation of Section 8(a)(5) and (1) of the Act.
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Although the matter was not specifically raised in the General
Counsel’s exceptions, the General Counsel did raise it in the brief
in support of the exceptions.
18 The Respondent subsequently and retroactively renewed pay-
ments to the welfare fund for those employees who never struck.
B. Alleged Unfair Labor Practice Strike
We disagree with the judge’s finding that it is un-
necessary to decide whether the strike is an unfair
labor practice strike or an economic strike.17 Although
the judge recognized that employee witnesses uni-
formly testified that they decided to strike in protest of
the Respondent’s February 6 unfair labor practices
(sec. A, above), the judge stated that this could be a
pretext seized on to ‘‘convert’’ an economic strike to
an unfair labor practice strike. The judge also relied on
the Respondent’s statements that the workers hired to
replace the strikers were only temporary replacements
and that strikers would be reinstated on request.
Contrary to the judge, we find it necessary to decide
whether the strike is an economic or unfair labor prac-
tice strike because under Board precedent unfair labor
practice strikers are entitled to special remedial provi-
sions, even if there is no allegation regarding denial of
reinstatement. Lucky 7 Limousine, 312 NLRB 770
(1993); Beaird Industries, 311 NLRB 768 (1993).
Moreover, the Respondent’s statement that the replace-
ments it has hired are temporary replacements would
not itself preclude the Respondent from subsequently
hiring those or other workers as permanent replace-
ments.
The judge’s use of the term ‘‘convert’’ suggests that
the judge has mistakenly applied the standard for de-
termining whether an economic strike has converted to
an unfair labor practice strike rather than the standard
for determining whether a strike has been an unfair
labor practice strike from its inception. An economic
strike will be found to have converted to an unfair
labor practice strike if it has been shown that the em-
ployer’s unfair labor practices have prolonged the
strike. C-Line Express, 292 NLRB 638 (1989). In con-
trast, a strike will be found to be an unfair labor prac-
tice strike from its inception if the employer’s unlawful
conduct has played a part in the decision to strike. C
& E Stores, 221 NLRB 1321, 1322 (1976); Larand
Leisurelies, Inc., 213 NLRB 197, 198 (1974). A strike
may be an unfair labor practice strike even though it
also has economic objectives. NLRB v. Fitzgerald
Mills Corp., 313 F.2d 260, 269 (2d Cir. 1963), cert.
denied 375 U.S. 834 (1963).
In this case it is evident that the Respondent’s Feb-
ruary 6 unfair labor practices played a part in the em-
ployees’ decision to strike. Throughout that month the
Union’s business agent, James Edwards, kept all unit
employees informed of the negotiations. When he
spoke to the employees prior to the strike, he ex-
plained that, if there was a strike, it would be for the
Respondent’s attempt to break the Union on February
6. He also explained to the employees that, in an un-
fair labor practice strike, their jobs would be protected,
and they would have the option of returning to work,
but that, if it were an economic strike, they would not
have the same protections. Employees confirmed they
were aware of the February 6 unfair labor practices
prior to striking. Furthermore, the strikers’ picket signs
and leaflets were consistent with an unfair labor prac-
tice strike.
For the foregoing reasons, we find that the employ-
ees went on strike in part because of the Respondent’s
unlawful conduct on February 6 and that the strike was
an unfair labor practice strike from its inception. Ac-
cordingly, we shall enter an appropriate remedial order
to protect the strikers’ prospective reinstatement rights.
C. Alleged Unilateral Changes
At the outset of the fourth bargaining session the
Respondent submitted its list of 43 proposals. The
fourth proposal stated that the Respondent would not
contribute to any benefit funds until a contract was
signed. In accord with that announcement, the Re-
spondent ceased contributions to the funds for all em-
ployees, including those who never struck and those
who later returned from the strike.18
The judge found that the Respondent unilaterally
ceased to make contributions to the welfare, pension,
and annuity funds on behalf of those employees who
returned from the strike, and unilaterally ceased to
make contributions to the pension and annuity funds
on behalf of those employees who never struck, in vio-
lation of Section 8(a)(5) and (1) of the Act. No party
has filed exceptions to these findings; accordingly, we
shall adopt them.
D. Alleged Refusal to Furnish Financial
Information
We agree with the judge that the Respondent unlaw-
fully refused to furnish the Union with requested finan-
cial information, but only in regard to the second and
third bargaining sessions. In support of the Respond-
ent’s bargaining proposals, the Respondent’s spokes-
man, Lippolis, claimed an inability to pay. As found
by the judge, Lippolis first made the claim at the sec-
ond bargaining session. The Union’s chief negotiator,
Sturm, asked to see the Respondent’s books but, ac-
cording to his testimony, he did not push the issue. At
the third session, Sturm asked why the Respondent
was asking for givebacks when in the past it had
signed the pattern agreement. Lippolis said because
they could not afford it. Sturm again asked to see the
Respondent’s books, specifically requesting the re-
ceipts and expense journals for the past 6 months. Ac-
cording to Sturm, Lippolis responded, ‘‘I’ll show you
769CENTRAL MANAGEMENT CO.
19 In agreeing that the Respondent was obligated to comply with
the Union’s request for financial information after claiming an in-
ability to pay, Member Browning finds it unnecessary to rely on
Nielsen Lithographing Co., 305 NLRB 697 (1991).
20 The Respondent’s argument that Sturm attempted to ‘‘box in’’
Lippolis to stating an inability to pay is misplaced. Even if Lippolis
was not a skilled negotiator, he did not seek to modify his claim
even after Sturm informed him of the legal ramifications.
21 United Stockyards Corp., 293 NLRB 1 (1989), cited by the
judge is distinguishable. That case involved whether the employer in
fact claimed poverty, not whether the employer effectively withdrew
a poverty claim.
22 We note, however, that the Respondent’s abandonment of its
claim of inability to pay in one of the shifting tactics on which our
finding of bad-faith bargaining is partially based. See discussion at
sec. G,4, below.
23 See, e.g., B. N. Beard Co., 248 NLRB 198, 209 (1980) (unlaw-
ful threat by deliberately driving pickup close to picketing em-
ployee).
mine, if you show me yours.’’ Sturm said he was not
the one claiming poverty. Lippolis said he had to get
permission. Sturm explained that, if he was claiming
poverty, the law required him to produce the books.
Lippolis replied that he would let Sturm know the fol-
lowing Monday, February 24. The Respondent did not
answer on that date and never produced the books.
We agree with the judge that the Respondent as-
serted an inability to pay and was therefore obligated
to show its books to the Union. In NLRB v. Truitt Mfg.
Co., 351 U.S. 149, 152–153 (1956), the court stated,
‘‘If such an argument [an inability to pay] is important
enough to present in the give and take of bargaining,
it is important enough to require some sort of proof of
its accuracy.’’ See also the Board’s discussion in
Nielsen Lithographing Co., 305 NLRB 697 (1991),
affd. sub nom. Graphic Communications Local 508 v.
NLRB, 977 F.2d 1169 (7th Cir. 1992).19 Accordingly,
we agree with the judge that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to fur-
nish financial information to the Union after claiming
an inability to pay.20
We disagree with the judge, however, that the Re-
spondent’s subsequent withdrawal of the claim of in-
ability to pay was not a ‘‘retraction’’ sufficient to ob-
viate the Respondent’s obligation to furnish the finan-
cial information.21
In this regard, at the fourth bargaining session, held
on February 27, the Respondent’s new negotiator,
Frank, submitted a list of 43 proposed items. The first
sentence of the first item stated, ‘‘The Company does
not claim inability to pay’’ (emphasis in original). Al-
though Frank continued to claim that the economy was
poor, the rent rolls were down, and the profits were
less than they had been, the Union acceded to the Re-
spondent’s claim that it was no longer pleading pov-
erty. As the Union’s negotiator, Sturm, testified, it was
‘‘obvious’’ to the Union that the Respondent was no
longer claiming poverty. In light of the Union’s admis-
sion that the Respondent was no longer claiming the
inability to pay, we find that the Respondent’s with-
drawal of its claim was effective and that, accordingly,
its obligation to provide information requested in re-
sponse to its claim of inability to pay ceased.22
Accordingly, we find that, as of the February 27
withdrawal of its claimed inability to pay, the Re-
spondent was no longer under any obligation to show
its books to the Union. In these circumstances, we
shall order the Respondent to cease and desist from
any refusal to furnish financial information when
claiming an inability to pay, but shall not enter an af-
firmative order that the Respondent now furnish that
information. Because, however, the Respondent’s ear-
lier refusal violated the Act, the refusal is one factor
to be considered in deciding whether the Respondent
engaged in overall bad-faith bargaining.
E. Alleged Refusal to Furnish Information About
Replacements
During the April 15 bargaining session the Union
asked the Respondent for a list of names and addresses
of striker replacements. The Respondent refused and
did not furnish the information until its September 30
letter to the Union. The judge found, and we agree,
that the Respondent violated Section 8(a)(5) and (1) of
the Act by failing timely to furnish the information.
The Respondent has not excepted to this finding.
F. Alleged Threat to Strikers
The judge credited evidence that, on July 18, Henry
Nelkin recklessly drove a pickup truck over a curb,
passing closely to where Pedro Correa was picketing.
We agree with the judge’s finding that Nelkin did so
with an intent to threaten a striker in violation of Sec-
tion 8(a)(1) of the Act.23 In face of the direct and
credited testimony of strikers Correa and Walbeck, we
find the Respondent’s witnesses’ circumstantial evi-
dence is unpersuasive. In addition, we draw an adverse
inference from the Respondent’s failure to call Nelkin
(or to explain the failure) and infer that Nelkin’s testi-
mony would have supported that of the strikers. See,
e.g., International Automated Machines, 285 NLRB
1122 (1987). Accordingly, we affirm the judge’s
8(a)(1) finding.
G. Alleged Surface Bargaining
The judge dismissed the complaint allegation that
the Respondent engaged in bad-faith bargaining with
no intention of reaching an agreement. We reverse.
Section 8(d) of the Act requires ‘‘the employer and the
representative of the employees to meet at reasonable
times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment
. . . but such obligation does not compel either party
to agree to a proposal or require the making of a con-
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The list includes delaying tactics, unreasonable bargaining de-
mands, unilateral changes in mandatory bargaining subjects, efforts
to bypass the union, failure to designate an agent with bargaining
authority, withdrawal of agreed to proposals, and arbitrary sched-
uling of meetings.
25 It is noteworthy that Henry Nelkin, who was present when these
remarks were made to the employees, also served as a representative
of the Respondent throughout the contract negotiations.
cession.’’ In deciding whether an employer has en-
gaged in surface or bad-faith bargaining, the Board ex-
amines the totality of the employer’s conduct, both at
and away from the bargaining table. Overnite Trans-
portation Co., 296 NLRB 669, 671 (1989), enfd. 938
F.2d 815 (7th Cir. 1991). Good-faith bargaining ‘‘pre-
supposes a desire to reach ultimate agreement, to enter
into a collective bargaining contract.’’ NLRB v. Insur-
ance Agents’ Union, 361 U.S. 477, 485 (1960). If the
employer’s overall conduct is designed to frustrate this
goal, the Board will find that the employer has en-
gaged in surface bargaining. For the following reasons,
we find that the totality of the Respondent’s conduct
evinced an intent to avoid its obligation to bargain in
good faith with the Union.
1. Almost at the outset of negotiations, the Respond-
ent, on February 6, attempted to bypass the Union by
offering the employees a continuation of existing terms
and conditions of employment (except pensions) if
they abandoned the Union. In doing so, the Respond-
ent not only engaged in one of the indicia of bad faith
listed in Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984),24 but did so in a direct attempt to get rid
of the Union. Such activity at the outset of negotia-
tions is the antithesis of good-faith bargaining.25
2. Despite the Respondent’s blatant attempt to get
rid of the Union, the parties continued to meet and
bargain. The Respondent’s original five proposals were
further defined and narrowed. During the second and
third session, the Respondent stated that its subcon-
tracting concerns were limited to renovation and con-
struction work and assured the Union it would not con-
tract out unit work. It also expressed a willingness to
agree to the proposed pattern agreement as a whole if
its five proposals were added as a rider.
Although some progress was made during the sec-
ond and third sessions, substantial time was devoted to
the Respondent’s claim of inability to pay and its re-
fusal to permit the Union to examine its financial
records. After the Union demanded to see the Re-
spondent’s books, the Respondent at the fourth session
withdrew its claim of poverty, effectively conceding
that the claim had been falsely made. We have found
that the Respondent’s refusal to timely furnish the fi-
nancial information while claiming poverty violated
the Act. We also find it is a factor indicative of bad-
faith bargaining. ‘‘Good-faith bargaining necessarily
requires that claims made by either bargainer should be
honest claims.’’ NLRB v. Truitt Mfg. Co., 351 U.S.
149, 152 (1956). The making of false claims does not
serve any legitimate purpose, but instead serves to im-
pede progress at the bargaining table.
3. At the beginning of the fourth bargaining session,
the Respondent submitted its list of 43 proposals, sub-
stantially changing the issues on the bargaining table.
Although the Board does not evaluate whether par-
ticular proposals are acceptable or unacceptable, the
Board will ‘‘examine proposals when appropriate and
consider whether, on the basis of objective factors, a
demand is clearly designed to frustrate agreement on
a collective-bargaining contract.’’ Reichhold Chemi-
cals, 288 NLRB 69 (1988). We so find in this case.
a. First, the list contains an announcement of an in-
tent to take an action that would violate the Act. Item
4 on the list stated that the Respondent would not
make contributions to the benefit funds ‘‘until a con-
tract is agreed to,’’ a plan the Respondent immediately
put into effect. By its own terms, the item was not a
contract proposal; rather, it indicated that the cessation
in contributions would end when an agreement was
reached. As found above, the implementation was a
unilateral change in violation of Section 8(a)(5) and (1)
of the Act. Such a unilateral change in a mandatory
subject of bargaining is one of the indicia of surface
bargaining listed in Atlanta Hilton & Tower, supra,
271 NLRB at 1603.
Although employers and unions are permitted a
wide latitude in their choices of bargaining tactics, an
announced intention to violate the Act goes beyond
permissible tactics. Compare NLRB v. Insurance
Agents’ Union, supra, 361 U.S. 477, in which the Su-
preme Court, in finding that a union’s engaging in a
slowdown was not an impermissible economic tactic,
drew the distinction between lawful but unprotected
activity and unlawful activity.
In addition, in NLRB v. Katz, 369 U.S. 736 (1962),
the court was careful to note that the availability of
economic weaponry under Insurance Agents is subject
to one crucial qualification—the party utilizing it must
at the same time be engaged in lawful bargaining.
Thus, while recalling that in Insurance Agents it found
that the Board may not decide the legitimacy of eco-
nomic pressure tactics ‘‘in support of genuine negotia-
tions,’’ Katz made clear that the Board ‘‘is authorized
to order the cessation of behavior which is in effect a
refusal to negotiate.’’ 369 U.S. at 747. In sum, al-
though the Respondent’s ultimatum was ostensibly
aimed at impelling the Union’s acceptance of the Re-
spondent’s contract proposals, this threatened termi-
nation of a benefit in the midst of negotiations was not
a lawful, good-faith measure to bring the parties into
agreement.
b. Second, the list of 43 proposals was a sudden, un-
explained, and major departure from the Respondent’s
previous position. Although some of the 43 items relat-
771CENTRAL MANAGEMENT CO.
26 Atlas Metal Parts Co. v. NLRB, 660 F.2d 304, 308 (1981);
Hendrick Mfg. Co., 287 NLRB 310 (1987), quoting from O’Malley
Lumber Co., 234 NLRB 1171, 1179 (1978) (‘‘Where an employer’s
economic power increases through the successful weathering of a
strike, it is not unlawful for the employer to use its new-found
strength to secure contract terms that it deems beneficial.’’).
27 In his discussion of surface bargaining, the judge incorrectly
stated that the Union proposed a reduction to 24 employees.
ed to the previous five proposals, most were new pro-
posals asking for substantially greater concessions.
As stated above, the Board does not evaluate the ac-
ceptability of particular proposals, but we will examine
proposals to determine, on an objective basis, whether
they are designed to frustrate reaching an agreement.
Similarly, while a party is normally free to change its
negotiating position in response to a change in bar-
gaining strength,26 we will also examine changes in
bargaining position to determine if they are designed
to impede agreement. In this case, it is clear that the
Respondent’s 43 proposals, when viewed in the totality
of the circumstances, constitute merely another tactic
to frustrate reaching an agreement.
The Respondent made the 43 proposals only 2 days
into the strike, when it had not hired any replacements
and when no strikers had returned to work. Thus, the
Respondent had insufficient time to evaluate in any ra-
tional way the strike’s impact or effectiveness, and
there is no rational basis for finding a shift in strength
to justify the Respondent’s change in position between
the third bargaining session on February 20 and the
fourth session on February 27. Compare Hendrick
Mfg., supra, in which the employer toughened its bar-
gaining position but did so only after it had weathered
a strike for several months and learned that it was able
to operate with fewer personnel at lower wage rates.
In addition, the Respondent’s negotiator, Frank, tes-
tified that he ‘‘had to go back and make up additional
proposals, which I hoped later on I could trade off to
some concessions by the union.’’ This constitutes the
sole record justification for proposing such dramatic
changes in the Respondent’s bargaining position.
We are fully aware that making proposals to be bar-
gained away is a common bargaining tactic. Here,
however, in the ensuing negotiations, Sturm called
Frank’s bluff by repeatedly requesting Frank to state
what the Respondent really wanted. In response, Frank
resisted the requests, kept most of the list on the table,
and demanded that the Union first make concessions.
In the face of Sturm’s repeated requests to discuss the
real issues, the Respondent’s continued insistence on
most of the items, which were designed to be bar-
gained away, is not indicative of the advancement of
a ‘‘sincerely held’’ position, but indicates that the Re-
spondent’s true, but unstated, intent was to create road-
blocks to prevent reaching an agreement.
c. In concluding that the Respondent did not engage
in bad-faith bargaining, the judge found that the Union
‘‘made absolutely no concessions of its own’’ and that
the Union’s position ‘‘from the first to the last day’’
was that the Respondent should sign the pattern agree-
ment. The judge also found that, although the Re-
spondent ‘‘made regressive proposals,’’ the failure to
reach agreement was not caused by the Respondent be-
cause ‘‘the Union’s representative entered these nego-
tiations with, if not a closed mind, a mind that was not
particularly open.’’ We find that the judge’s statements
about the parties’ negotiating stances mischaracterized
the evidence.
The Union’s spokesman, Sturm, repeatedly tried to
get the Respondent to discuss the real issues. When-
ever the core (original five) issues were discussed, the
Union engaged in meaningful negotiations. For exam-
ple, the parties at several sessions discussed subcon-
tracting, one of the Respondent’s original proposals. At
the February 10 session Lippolis assured Sturm that
the Respondent did not intend to contract out unit
work. At the April 15 session, Frank gave a similar as-
surance, at first. After conferring with Nelkin, how-
ever, Frank told Sturm that the Respondent wanted to
preserve its option of unrestricted contracting out.
Frank did not explain why, even though the Respond-
ent’s only stated concern was to subcontract renovation
and construction work. At the August 11 session,
Sturm offered to change the recognition clause to ex-
clude construction work, explaining that he thought
this was the only way to obtain the Union’s approval.
Frank replied he wanted to change the no subcon-
tracting clause. The Respondent’s lack of clarity and
vacillation on subcontracting contrasts with Sturm’s
search for a solution.
The parties at times also discussed staffing levels.
During the first three sessions, the Respondent stated
it wanted a reduction to 24 employees. Later it said it
wanted only 18. At the August 11 session, Sturm of-
fered to reduce staffing to 21 from the prestrike level
of 27 employees.27 Sturm said he was willing to go to
the Union for approval of such a reduction. Frank in-
sisted on only 18 employees. Contrary to the judge, we
find that Sturm’s proposal to reduce staffing by nearly
23 percent was a substantial concession.
At the August 11 session, the parties also briefly
discussed eliminating free apartments for assistant su-
perintendents. In reply to Sturm’s questions, Frank
stated that only superintendents would be responsible
for emergency calls. Sturm did not reject the proposal.
Thus, progress appeared to be made on this issue as
well. The evidence shows that, far from a rigid insist-
ence on the pattern agreement, the Union was willing
to discuss the issues, to seek solutions, and to make
concessions.
4. Although the Respondent’s representatives ap-
peared regularly at the bargaining table and made ef-
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forts to bring the Union to the bargaining table, we are
persuaded by the totality of the evidence that the Re-
spondent was not negotiating in good faith with a view
to trying to reach a collective-bargaining agreement.
Thus, the Respondent, at the outset of negotiations,
sought to undermine the Union by bypassing the
Union and attempting to deal directly with the employ-
ees and to persuade the employees to abandon the
Union. When that tactic failed, the Respondent decep-
tively plead poverty during the second and third ses-
sions. When the Union demanded to see its books, the
Respondent abandoned that tactic. Instead, the Re-
spondent pursued a different tactic; it submitted its list
of 43 proposals demanding substantial additional con-
cessions by the Union. That tactic included the an-
nouncement and the implementation of the unilateral
and unlawful cessation of benefit fund contributions to
nonstriking employees. Although the Respondent de-
signed the proposals to be bargained away for conces-
sions by the Union, the Respondent misleadingly con-
tinued to insist on most of the proposals even though
the Union repeatedly attempted to get the Respondent
to negotiate about the real issues.
In view of the evidence that the Union was willing
to discuss the issues, to seek solutions, and to make
meaningful concessions, we can only conclude that the
Respondent’s overall strategy was to avoid reaching an
agreement. Accordingly, we find that the Respondent
has engaged in surface bargaining in violation of Sec-
tion 8(a)(5) and (1) of the Act.
H. Other Issues
In footnote 5 of his decision, the judge referred to
testimony by the Respondent’s negotiator, Frank, that
the parties never got beyond the issues that led to im-
passe on August 20. In the antepenultimate sentence of
his remedy discussion, the judge found that the parties
were at impasse. We expressly disavow any finding or
implication that the parties were at impasse. The mat-
ter was not raised by the parties or litigated at the
hearing. In addition, in light of our finding that the Re-
spondent engaged in bad-faith bargaining, there can be
no impasse. United Contractors, 244 NLRB 72 (1979),
enfd. 631 F.2d 735 (7th Cir. 1980).
CONCLUSIONS OF LAW
1. The Respondent is a single employer and is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act and is the exclu-
sive collective-bargaining representative of the employ-
ees in the following unit:
All service employees, including superintendents,
assistant superintendents, handymen, and porters
employed by the Respondent at the seven apart-
ment complexes named in the case caption.
3. The Respondent violated Section 8(a)(1) of the
Act by:
(a) Soliciting employees to get rid of the Union.
(b) Driving a pickup truck in a reckless manner so
as to threaten a striker with physical harm.
4. The strike was an unfair labor practice strike from
its inception.
5. The Respondent has violated Section 8(a)(5) and
(1) of the Act by:
(a) Bypassing the Union, the employees’ collective-
bargaining representative, by making direct offers to
employees of wages and other terms and conditions of
employment in exchange for their abandonment of the
Union.
(b) Failing to timely furnish financial information to
the Union after claiming an inability to pay.
(c) Failing to timely furnish the Union with the
names and addresses of striker replacements.
(d) Unilaterally ceasing to make certain fringe ben-
efit funds payments on behalf of employees who never
went on strike or who returned to work during the
strike.
(e) Bargaining with the Union in bad faith with no
intention of entering into any binding collective-bar-
gaining agreement.
6. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
As we have found that the Respondent has com-
mitted certain unfair labor practices, we shall order the
Respondent to cease and desist and to take certain af-
firmative action designed to effectuate the policies of
the Act.
As the Respondent has engaged in bad-faith bargain-
ing, we shall order the Respondent to bargain collec-
tively in good faith, on request, with the Union as the
exclusive bargaining representative of its employees in
the above unit and, if an understanding is reached, to
embody that understanding in a signed agreement.
We have found that the Respondent unlawfully
ceased making contributions to the welfare, pension,
and annuity funds on the behalf of nonstriking employ-
ees. Accordingly, we shall order the Respondent to
make all such delinquent contributions at the 1988–
1991 contract rates, including any additional amounts
due the funds in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addi-
tion, the Respondent shall reimburse employees for
any expenses ensuing from its failure to make the re-
quired contributions, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981), such amounts to be computed in
773CENTRAL MANAGEMENT CO.
28 Although the court denied enforcement, it did so on the facts
of the case that, as the union had disclaimed interest in representing
the employees, the employees no longer had a future interest in the
stability of the fund.
29 The Board has found that the 5-day period is a reasonable ac-
commodation between the interests of the employees in returning to
work as quickly as possible and the employer’s need to effectuate
that return in an orderly manner. Drug Package Co., 228 NLRB
108, 113 (1977), modified on other grounds 570 F.2d 1340 (8th Cir.
1978). Accordingly, if the Respondent here ignores or rejects, or has
already rejected, any unconditional offer to return to work, unduly
delays its response to such an offer, or attaches unlawful conditions
to its offer of reinstatement, the 5-day period serves no useful pur-
pose and backpay will commence as of the unconditional offer to
return to work. Newport News Shipbuilding, 236 NLRB 1637, 1638
(1978), enfd. 602 F.2d 73 (4th Cir. 1979).
the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). As the Respondent
retroactively restored contributions to the welfare fund
on behalf of those employees who never struck, we
shall not require the Respondent to make that fund
whole for those employees. As the Respondent made
no such restoration for those strikers who returned to
work, we shall require the Respondent to make all
three funds whole for those employees.
In its exceptions and brief, the Respondent contends
that it should not be required to make the welfare fund
whole because the returning strikers were provided
with an alternative health plan. We reject that conten-
tion. ‘‘[E]mployees have, in addition to a stake in re-
ceiving benefits negotiated on their behalf by their
chosen representatives, a clear economic stake in the
viability of funds to which part of their compensation
is remitted.’’ Manhattan Eye, Ear, & Throat Hospital,
300 NLRB 201, 201–202 (1990), enf. denied 942 F.2d
151 (2d Cir. 1991).28 See also Stone Boat Yard v.
NLRB, 715 F.2d 441, 446 (9th Cir. 1983).
We have found that the strike was an unfair labor
practice strike from its inception. Because unfair labor
practice strikers are entitled to special remedial provi-
sions, even if there is no allegation of any denial of
reinstatement, we shall order the Respondent to offer
the strikers, on their unconditional applications to re-
turn to work, immediate and full reinstatement to their
former jobs or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, discharging, if necessary, any replacements
hired after the onset of the strike. The Respondent
shall make such strikers whole for any loss of earnings
and other benefits resulting from any failure to rein-
state them within 5 days of their unconditional re-
quests, with backpay and interest to be computed in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and New Horizons for the Re-
tarded, supra.29 Any such employees for whom em-
ployment is not immediately available shall be placed
on a preferential hiring list for employment as posi-
tions become available and before other persons are
hired for such work. Priority for placement on such a
list shall be determined by seniority or some other
nondiscriminatory test.
We have found that the Respondent unlawfully
failed to timely furnish the Union with financial infor-
mation and with the names and addresses of striker re-
placements. Although the Board’s usual remedy is to
order the production of the information, such remedial
action is not necessary here. The Respondent effec-
tively withdrew its claim of inability to pay, the basis
for the financial information, and it furnished, belat-
edly, the list of names and addresses.
ORDER
The National Labor Relations Board orders that the
Respondent, Fairhaven Properties, Inc., Myron Nelkin
d/b/a Central Management Co., Fairhaven Apartments
#1, Inc., Fairhaven Apartments #2, Inc., Fairhaven
Apartments #3, Inc., Fairhaven Apartments #4, Inc.,
Fairhaven Apartments #5, Inc., Fairhaven Apartments
#6, Inc., Fairhaven Apartments Syosset, Inc., and
Fairhaven Maintenance and Construction, Inc., Garden
City, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Soliciting employees to sign a petition to oust
Local 32B-32J, Service Employees international
Union, AFL–CIO (the Union) as their exclusive collec-
tive-bargaining representative.
(b) Driving a motor vehicle in a reckless manner so
as to threaten employees with physical harm.
(c) Bypassing the employees’ exclusive collective-
bargaining representative by making direct offers to
employees of wages and other terms and conditions of
employment.
(d) Failing to timely furnish the Union with finan-
cial information while claiming an inability to pay.
(e) Failing to timely furnish the Union with the
names and addresses of striker replacements.
(f) Unilaterally ceasing to make contributions to the
welfare, pension, and annuity funds on behalf of strik-
ers who returned to work and to the pension and annu-
ity funds on behalf of employees who never went on
strike.
(g) Refusing to bargain in good faith with the Union
as the exclusive collective-bargaining representative of
its employees.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) On request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of
its service employees concerning terms and conditions
of employment and, if an understanding is reached,
embody it in a signed agreement.
(b) Make whole employees and the welfare, pension,
and annuity funds in the manner set forth in the rem-
edy section of this Decision and Order.
(c) Accord all striking employees, from the date of
the strike, the rights of and privileges of unfair labor
practice strikers, including, on their application, offer-
ing strikers immediate and full reinstatement to their
former jobs or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, discharging, if necessary, any replacements
hired after the start of the strike, and make such em-
ployees whole, with interest, in the manner set forth in
the remedy section of this Decision and Order for any
loss of earnings or other benefits resulting from any
failure to reinstate them on unconditional request.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of money and
any backpay due under the terms of this Order.
(e) Post at its facilities in Long Island, New York,
where unit employees work, copies of the attached no-
tice marked ‘‘Appendix.’’30 Copies of the notice, on
forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive 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 cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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
have violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
WE WILL NOT solicit employees to sign a petition to
oust Local 32B-32J, Service Employees International
Union, AFL–CIO (the Union) as their exclusive collec-
tive-bargaining representative.
WE WILL NOT drive motor vehicles in a reckless
manner so as to threaten employees with physical
harm.
WE WILL NOT bypass the employees’ exclusive col-
lective-bargaining representative by making them di-
rect offers of wages and other terms and conditions of
employment in exchange for their abandonment of the
Union.
WE WILL NOT fail to timely furnish the Union with
financial information while claiming an inability to
pay.
WE WILL NOT fail to timely furnish the Union with
the names and addresses of striker replacements.
WE WILL NOT unilaterally cease to make contribu-
tions to the welfare, pension, and annuity funds on be-
half of strikers who returned to work and to the pen-
sion and annuity funds on behalf of employees who
never struck.
WE WILL NOT refuse to bargain in good faith with
the Union as the exclusive representative of the em-
ployees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
775CENTRAL MANAGEMENT CO.
WE WILL, on request, bargain in good faith 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.
WE WILL make whole employees and the welfare,
pension, and annuity funds.
WE WILL, from the date of the strike, reinstate on
request all striking employees to their former jobs or,
if such positions no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, dis-
charging, if necessary, any replacements hired after the
start of the strike, and make such employees whole,
with interest, for any loss of earnings or other benefits
resulting from any failure to reinstate them on uncon-
ditional request.
FAIRHAVEN PROPERTIES, INC., MYRON
NELKIN D/B/A CENTRAL MANAGEMENT
CO.; FAIRHAVEN APARTMENTS #1, INC.;
FAIRHAVEN APARTMENTS #2, INC.;
FAIRHAVEN APARTMENTS #3, INC.;
FAIRHAVEN APARTMENTS #4, INC.;
FAIRHAVEN APARTMENTS #5, INC.,
FAIRHAVEN APARTMENTS #6, INC.;
FAIRHAVEN APARTMENTS SYOSSET,
INC.; AND FAIRHAVEN MAINTENANCE
AND CONSTRUCTION, INC.
Ann S. Goldwater Esq., for the General Counsel.
Neil Frank Esq. and Alan Breslow Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Brooklyn, New York, on December 16 and 17,
and 18, 1992. The charges and amended charges were filed
on February 12 and 28, March 17 and 26, May 13, and Au-
gust 31, 1992. After a series of complaints were issued by
the Regional Director in relation to these charges, he issued
on December 16, 1992, an amended consolidated complaint
which put into a single document all the allegations made
against the Respondents. In substance, the allegations are as
follows:
1. That on or about February 6, 1992, the Respondent by
Anton Vuklevic, a supervisor, and Henry Nelkin, its vice
president, promised employees that it would maintain their
existing wages and benefits (except for the pension benefit),
if they abandoned their membership in the Union; urged
them to sign a document indicating their desire to forgo
union representation, and interrogated employees as to their
willingness to sign such document.
2. That since February 25, 1992, some of the Respondent’s
employees went out on a strike which was caused by the al-
leged unfair labor practices described above in paragraph 1.
It also is alleged that the strike was prolonged by the alleged
unfair labor practices described below. In this respect, it is
noted that some of the strikers had not, as of the time of the
hearing, requested their jobs back and that others had already
returned to work. The Respondent stated at the hearing (in
conformity to a letter previously sent to the Union on May
22, 1992) that it did not consider the replacements to be per-
manent and that it would reinstate any striker who offered
to return. (In the context of the present proceeding, the Gen-
eral Counsel does not contend that the Respondent has re-
fused to reinstate any striker who has offered to return to
work.)
3. That on July 18, 1992, the Respondent, by Nelkin,
drove a vehicle recklessly so as to threaten employees on the
picket line with physical harm.
4. That the Respondent has bargained in bad faith by the
following acts:
(a) Although stating at the first three bargaining sessions
that it could not afford to meet the Union’s demands, it re-
fused to furnish financial information when such information
was requested at the meeting of February 27, 1992, asserting
instead that it no longer was claiming ‘‘inability to pay.’’
(b) That the Respondent sought substantial concessions
from the preceding contract and offered terms and conditions
to the Union which were less favorable than those offered di-
rectly to the employees if they would abandon the Union.
(c) That the Respondent, after the first three bargaining
sessions, drastically revised its contract proposals and de-
manded greater concessions from the Union than what it had
sought up to that time. This allegedly took place since on or
after February 27, 1992, 2 days after the Union commenced
a strike.
5. That the Respondent, since about February 27, 1992,
has unilaterally ceased making contributions to the Welfare,
Pension, and Annuity Funds, as required pursuant to the pre-
existing but expired collective-bargaining agreement between
the parties on behalf of employees who did not engage in the
strike or who abandoned the strike.
6. That as to employees who abandoned the strike and re-
turned to work, the Respondent enrolled them in its own
health plan.
7. That the Respondent, from April 15 to September 30,
1992, refused to furnish the names and addresses of all strike
replacements to the Union. In essence, the allegation here is
that the Respondent failed to deliver this information in a
timely manner.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondents are related companies having common
ownership and management. They administer a common
labor relations policy and therefore are construed as a joint
employer.
The Company and the Union have had a collective-bar-
gaining relationship since about 1983. The employees rep-
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under the expired contract, the Employer was unable to reduce
the number of bargaining unit employees in its work force without
the consent of the Union. Art. X, sec. 19.
resented by the Union are the porters, maintenance men, su-
perintendents, and assistant superintendents who work at five
separate apartment building complexes which are located in
Hicksville, Syosset, Smithtown, Carle Place, and Mineola.
For some reason, there have been separate contracts between
the Union and the Company regarding each of the foregoing
locations.
The most recently executed set of contracts between the
Company and the Union ran for a term from June 21, 1988,
to June 20, 1991. On June 20, 1991, that contract expired
and no new contract has been reached.
Ira Sturm, the Union’s attorney, testified that the normal
practice in the industry is for the Union to first negotiate
with an association of New York City apartment owners
called the Realty Advisory Board (RAB). When a contract
has been reached between the Union and the RAB, the
Union then formulates a proposed contract for Long Island
apartment owners which it sends out for signature. The Long
Island contract, according to Sturm, is essentially based on
the language and rate increases negotiated between the Union
and the RAB, albeit the actual wage rates and benefits may
be somewhat lower in absolute terms.
At some point during 1991, a contract was reached be-
tween the Union and the RAB and the Union thereupon sent
out to Fairhaven, its proposed Long Island contract. For a
time the Company did not respond but ultimately, James Ed-
wards, a union business agent, was advised that the Com-
pany wanted to sit down and negotiate the terms of a new
contract rather than simply signing the proffered document.
As a result, a series of bargaining sessions were conducted
beginning on January 29, 1992. In all, the parties met on
eight occasions from January 29 to August 20, 1992.
It is noted that the bargaining should be separated into two
stages. First there were the three meetings held in January
and February 1992 when the Company was represented by
a person (Robert Lippolis), who was without labor relations
experience. The remainder were held after the Union com-
menced a strike on February 25 and the Company hired Neil
Frank, a labor lawyer, to represent them. During the entire
course of the negotiations, the Union’s attorney, Ira Sturm,
was its chief spokesman.
Before the negotiations started, there occurred an incident
on February 6, 1991, where Anton Vuklevic, a supervisor,
approached some of the employees at at least two of the lo-
cations and asked them to sign a piece of paper indicating
that they wanted to get rid of the Union. The evidence shows
that Vuklevic told employees that if they got rid of the
Union, their wages and benefits would remain the same, al-
beit without the Pension Plan. The employees, after asking
for time to consider this proposition, refused to sign the peti-
tion when asked to do so later in the day. After that the mat-
ter was dropped. The Employer did not put on any witnesses
to rebut these assertions.
The events described in the preceding paragraph all oc-
curred on or about February 6, 1992, and the Union filed the
unfair labor practice charge concerning this incident in Case
29–CA–16346, on February 13, 1992. Being the smart law-
yer that he is, Sturm held a meeting with the shop steward
and told him that if the Union called a strike, it would be
to protest the unfair labor practices that the Company com-
mitted on February 6. This obviously was done to lay the
foundation for a later claim that any foreseeable strike would
be, at least in part, an unfair labor practice strike which
therefore would protect the striking employees from being
permanently replaced. Mastro Plastics Corp. v. NLRB, 350
U.S. 270 (1956).
The first meeting was held on January 29, 1992. As noted
above, the Union’s chief spokesman was Ira Sturm and the
Company’s chief spokesman was Robert Lippolis, who is a
vice president of the Company. According to Sturm, the
Company, through Lippolis, said that the Company was los-
ing money and that it needed relief. He states that Lippolis
said that the Company wanted (1) a 1-year wage freeze; (2)
the right to subcontract; (3) the right to reduce by half the
number of superintendents or assistant superintendents who
had free apartments; (4) the right to reduce the staffing level
to 24 from the current level of 27 or 28;1 and (5) no retro-
activity, meaning that whatever agreement was reached its
effective date would be from the date of signing and not
from the date that the prior contract had expired on June 20,
1991.
Lippolis’ testimony regarding the January 29 meeting was
that the Union expected the Company to sign the proffered
contract as is, but that he refused to do so, stating that the
economy was bad and that the rent rolls were down. Lippolis
listed the concessions the Company wanted (described
above), and states that when he did so, Edwards said that he
was crazy. According to Lippolis, Sturm said that the
Union’s proffered contract was the only contract that was
available. (I believe this last statement because it is clear
from the entire course of negotiations that the Union never
once proposed a modification of its proffered contract and
never once made a counteroffer to the Company’s proposals.)
The next meeting was held on February 10, 1992. Sturm
contends that at this meeting, Lippolis said that the employer
was losing money and couldn’t afford to pay what they were
paying. He states, and Lippolis does not assert to the con-
trary, that the Company repeated the demands it made during
the first meeting. The only real difference in the testimony
is that Lippolis denies stating that the Company was losing
money or could not afford to pay.
The final meeting before the strike was held on February
20, 1992. The same issues were gone over and neither side
backed down on their respective positions. In this regard,
Sturm asked how come the Company was asking for give-
backs when in the past they always had signed the standard
form agreement. Sturm testified that when Lippolis again
claimed that the Company couldn’t afford any increases, he
asked that the Company turn over its financial books and
records, specifically the receipts and expense journals for the
last 6 months. According to Sturm, at a union caucus, he told
the shop steward that there likely was going to be a strike
and that the Union, based on the February 6 incidents, would
characterize the strike as an unfair labor practice strike be-
cause that would give employees the unconditional right to
get their jobs back. After the caucus, Sturm told the Com-
pany that they weren’t getting anywhere and to let him know
by Monday if his information request was going to be hon-
ored.
777CENTRAL MANAGEMENT CO.
2 Sturm testified that at this meeting, the Union’s representatives
told the Company that they were giving 24-hour notice that there
might be a strike, and that such a strike would be an unfair labor
practice strike. 3 The Union’s March 20 letter was not offered into evidence.
Lippolis testified that he suggested that the Company
might be willing to sign the proffered contract if the conces-
sions the Company was seeking were put into a rider to the
agreement. He recalls that at the February 20 meeting, the
Union asked to see the Company’s books. Although asserting
that he absolutely did not say that the Company could not
afford the Union’s demands, his bargaining notes for that day
state:
We made it clear that we were not able to afford the
increases contained in the new contract but that we
would not pay the increases as they were.
At the conclusion of the February 20 meeting, neither
party had retreated from their original positions and it was
apparent to all that a strike was imminent.2
On Friday, February 21, Neil Frank was retained to rep-
resent the Respondent and on Monday, February 24, he
called up Sturm to ask for a meeting which was set for Feb-
ruary 27, 1992.
On February 25, 1992, the Union called a strike. In this
respect, the employees of four out of the five apartment com-
plexes were called out on strike. The people employed at the
Hicksville complex were not asked to strike and they contin-
ued to work. In relation to the strike, the Union used picket
signs claiming that the strike was an unfair labor practice
strike. It is noted that within about a month of the strike’s
commencement, a number of employees resigned their mem-
bership in the Union, abandoned the strike, and returned to
work.
Prior to the meeting of February 27, Frank reviewed the
expired contract, compared it with the proffered contract, and
drafted a set of proposals which he presented to the Union
at the meeting. These proposals included the five issues that
the Company had raised during the initial meetings. Some of
the other company demands (about 11) simply were demands
to delete from the new contract any language or provision
that the Union had changed from the old contract. (For ex-
ample the Union’s new contract provided for paternity and
maternity leave without pay and no such provision is con-
tained in the expired contract.) Other proposals constituted
further give-backs which Frank testified were put in the com-
pany demands for the purpose of being bargained away. He
testified that he did this as a tactical move in the hope that
this would break the existing deadlock. (Indeed, he did drop
all of these items by August 1992.) At the top of the Com-
pany’s proffer was paragraph 1 which reads:
1. The Company does not claim inability to pay. It
makes these proposals in view of the recession, the af-
fect on its ability to rent apartments to make a fair prof-
it, and the availability of people willing to work at cur-
rent wages.
When the Union was presented with the Company’s writ-
ten demands, they left the meeting in a huff.
On February 28, 1992, Frank sent a letter to Sturm as fol-
lows:
Your walkout from negotiations last night, and fail-
ure to consider or discuss the company’s contract pro-
posals makes it impossible to settle either the strike or
the terms of a contract. The parties are clearly at an im-
passe that can only be broken by your decision to re-
sume negotiations. If you reconsider your decision not
to negotiate feel free to contact me. We remain ready
to meet at any convenient time. Since the company paid
for the room last night, we will expect the union to pay
the next time. I enclose another copy of the company’s
contract proposal. Perhaps if you review it, you will
find grounds for compromise.
As you are aware, the superintendents and assistant
superintendents received the use of an apartment and
utilities without charge as part of their compensation
for services to the company. Two superintendents and
assistant superintendents are on strike. Since these em-
ployees are not working actively for the company, the
company will begin billing and collecting rent for their
apartments and charges for utilities effective March 1,
1992.
The parties stipulated that:
1. Since in or about February 1992, Respondents
ceased making contributions to the Union’s pension
fund, annuity fund and health and welfare fund for all
employees who abandoned the strike and who returned
to work.
2. Since in or about February 1992, Respondents
have made contributions to the Union’s health and wel-
fare fund for five employees who did not strike, but
ceased making contributions to the pension fund and
annuity fund for this group of employees.
On March 24, 1992, Frank sent another letter to Sturm as
follows:
I’ve received your letter of March 20, 1992,3 and
have asked my client to provide me with any relevant
materials. I will forward them to you upon receipt. We
are prepared to engage in negotiations, at any time,
without pre-conditions. Of course, we, and not you, will
determine our method of bargaining. You walked out of
negotiations on February 27. If you are interested in re-
suming negotiations, you can call me to arrange a meet-
ing. We will not meet at the Union’s office. If the Is-
land Inn is not to your liking, I am sure a different neu-
tral site can be arranged.
On April 14, 1992, the parties met again. According to
Sturm, he asked why the Company insisted on a wage freeze
inasmuch as it no longer was claiming inability to pay. He
states that when Frank responded that the rental rolls were
down, he asked to see the rent records. Frank responded that
the Company’s position was not that they couldn’t afford to
pay an increase, but that they didn’t want to. Sturm states
that he asked for the names and addresses of the strike re-
placements and Frank told him that he was reluctant to give
that information because there had been some acts of vandal-
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 According to Frank, the Company, at that time, had not yet hired
any employees as replacement. He states that the Company used em-
ployees it had at other operations to fill in on a temporary basis for
the strikers. Frank testified that at some later point, the Company did
hire temporary replacements.
ism to the Company’s properties.4 The Employer demanded
that the staffing level be set at 18 rather than the 24 it had
demanded before the strike and Sturm suggested that any re-
duction in staff might be accomplished by attrition. Accord-
ing to Sturm, when he asked Frank what he really wanted,
Frank responded that he wanted to know that the Union was
willing to modify its standard agreement. Sturm told Frank
that he was unwilling to make any concession until he heard
what the Company really wanted.
At the April 14 meeting, there also was some discussion
about the Company’s cessation of payments to the Union’s
benefit funds set forth in the contract which had expired on
June 20, 1992. In this respect, the Company had continued
to make payments to the funds after that contract expired but
ceased doing so from the date that the strike began. That is,
from February 25, 1992, the Company stopped making pay-
ments to the funds on behalf of all of its bargaining unit em-
ployees. At the April 14 meeting, Sturm claimed that the
Company should have continued making contributions to the
funds on behalf of the five Hicksville employees who never
went on strike and and on behalf of those employees who
abandoned the strike and returned to work. Subsequently, in
May 1992, the Company resumed payments to the Union’s
health fund on behalf of the nonstriking Hicksville employ-
ees and made such payments retroactive to February 1992.
(The Company’s payments were made at the rates set forth
in the expired contract.) It did not however, resume making
contributions to the Pension or other funds on their behalf.
As to those employees who abandoned the strike, the Com-
pany did not resume contributions to any of the union benefit
plans on their behalf but it did place them into a Health Plan
which covered its managerial and clerical workers called the
FMC plan. As to those employees who remained on strike,
no payments to any funds were made for them.
On April 21, 1992, Frank sent a letter to Sturm. This stat-
ed that the Company was not asserting that it could not af-
ford to pay the increases demanded by the Union. Frank stat-
ed that with unemployment at high levels, the Company
could find plenty of qualified people to work for less and
that, although the Company was making a profit, it was not
as profitable as it wished.
On May 5, 1992, Frank told Sturm that the Company
would resume making contributions to the Union’s health
fund on behalf of the five Hicksville employees who never
struck but would cover any employees who returned to work
from the strike under its own FMC plan. During this meet-
ing, Frank said that he had some new company proposals
(concessions), but would not present them until the Union
made a counterproposal of its own. Sturm told Frank that it
made no sense for the Union to make a counterproposal at
this time, as it would just be ‘‘bargaining against itself.’’
Sturm said that if the employer had a new proposal, it should
be put on the table and maybe that would produce some
movement. According to Sturm, Frank responded that he
would not do so unless the Union made a concession first.
Sturm responded that at the last meeting before the strike,
the Employer had no problem with the form of the contract
and that there were only four outstanding issues. Sturm also
said that he objected to the fact that Frank had come into
the negotiations and had put a whole bunch of new proposals
on the table. It is noted that as of this date, or any date there-
after, the Union made absolutely no concessions on its side,
except to the limited extent that it indicated that it was will-
ing to talk about reducing the manning requirement.
On May 18, 1992, Frank sent the following letter to
Sturm:
At our negotiations you requested certain information
which we respond to as follows:
1. Names of employees with perfect attendance in
1991: Jilberto Aravena, Chris Bondi, Michael
McCallion, John Chimenti, Michael Waldek.
2. A copy of the Health Plan being provide to certain
working bargaining unit members is enclosed.
3. The cost of the plan is:
Single $149.88
Employee + 1 $213.65
Family $363.50
The company’s position remains as it has during ne-
gotiations; it will not make any payments to the union
benefit plans unless and until a new collective bar-
gaining agreement is signed. We are available to nego-
tiate about this and any other topic at your convenience.
By letter dated May 29, 1992, Frank withdrew certain of
the company demands. Sturm did not respond, testifying that
he felt that the concessions offered the Company were incon-
sequential and insufficient.
By letter dated July 23, 1992, Frank withdrew another set
of company demands. Sturm replied on August 3 as follows:
I am in receipt of your letter of July 23, 1992. I do
not think that this unilateral act constitutes any sincere
effort by your client to remedy its outstanding unfair
labor practices. Should you feel otherwise or wish to
discuss settlement of the unfair labor practices, please
advise.
The penultimate meeting was held on August 11, 1992.
There was considerable discussion about the staffing level
with the Employer wanting to limit the staff to 18 and the
Union stating that 27 or 28 people were necessary to do all
the work. According to Sturm, he suggested that he was will-
ing to go back to the Union’s president and ask for permis-
sion to have a unit of 21. The parties also discussed the issue
of subcontracting wherein the Employer had demanded
throughout the negotiations that it should have the right to
subcontract out certain heavy or construction-type work such
as roof repairs, etc. In this context, the Employer asked for
a modification of the existing subcontracting clause whereas
the Union wanted to keep that clause intact and deal with the
issue by modifying the recognition clause. According to
Frank, at one point during this meeting, Sturm asked if there
could be a contract if the parties resolved the staffing and
the subcontracting issues. Frank replied that there still were
other issues that had to be resolved such as the Company’s
demands for a wage freeze and elimination of free apart-
ments for some of the employees.
779CENTRAL MANAGEMENT CO.
5 According to Frank, the Company never made a wage proposal
apart from its demand for a 1-year wage freeze. That is, he testified
without contradiction that the parties never got beyond the issues
that led to the impasse on August 20, 1992, and neither side ever
explored what the wages should be in the second and third year of
a contract.
6 Schmidt-Tiago Construction Co., 286 NLRB 342, 364 (1987),
cited by the General Counsel, is inapposite. In that case, the em-
ployer, during negotiations, offered strikers terms and conditions of
employment before making such offers to the Union while, at the
same time, telling the strikers that it would never sign an agreement
with the Union.
The final bargaining session was held on August 20, 1992.
After a caucus, Sturm asked Frank to ‘‘tell me exactly what
you want, that way I will know what is important and where
we are going.’’ He states that Frank said that the following
items were important from the Employer’s point of view: (1)
a 1-year wage freeze after which the parties would negotiate
wages for the next 2 years; (2) the right to subcontract; (3)
no checkoff of union dues; (4) no contributions to health and
welfare funds until a new contract was signed; (5) no retro-
activity; (6) elimination of the clause in the old contract es-
tablishing a contract arbitrator substituting instead either the
AAA or the Federal Mediation and Conciliation Service; (7)
amendment of article 7 of the old contract to allow subcon-
tracting of construction type work; (8) elimination of the
cost-of-living provisions of the Union’s proposed contract;
(10) elimination of the Union’s proposed increase in meal al-
lowances; (11) free apartments only to superintendents; (12)
no perfect attendance bonus; (13) no increase in contribution
rates to the legal and training funds; (14) elimination of the
paternity-maternity leave provision in the Union’s proposed
contract; and (15) elimination of the wage scale set forth in
the super rider to the Union’s proposed contract. According
to Sturm, he asked what Frank’s problem was with the pater-
nity-maternity leave clause as this was a noncost item. Frank
replied that this provision in the Union’s proposed contract
was a new benefit over and above what was contained in the
previous contract and he was not willing to give any new
benefits. According to Frank, he told Sturm that the Com-
pany’s purpose at the negotiations ‘‘was not to give the
Union more; it was to give them less.’’5 After another cau-
cus, Sturm told the Employer that there was no point in re-
turning to the negotiations.
Finally, there was evidence which I credit, that on July 18,
1992, Henry Nelkin recklessly drove the Company’s white
Toyota pickup onto the curb and passed closely by where
Pedro Correa was picketing in such a manner as to frighten
him.
III. ANALYSIS
A. The Solicitation to Sign the Petition
On February 6, 1992, the Employer’s supervisors, on sev-
eral occasions during the day, solicited employees to sign a
petition to oust the Union as their bargaining representative.
Contrary to the General Counsel, I cannot conclude that this
was accompanied by a promise of benefit. At most, the em-
ployees were told that their existing benefits, except for the
pension fund, would remain the same with or without a
union. Nor, in my opinion, did this event, amount to direct
dealing as alleged by the General Counsel.6
On the other hand, I do think that the solicitation of such
a petition amounts to coercive interrogation as it puts the em-
ployees in the position of having to indicate whether or not
they wished to be represented by the Union. This would be
analogous to the situation where a preelection distribution of
‘‘Vote No’’ buttons to employees by a supervisor would
constitute illegal interrogation as the offer requires the em-
ployees to make an observable choice when accepting or re-
jecting the buttons. Kurz-Kasch, Inc., 239 NLRB 1044
(1978).
B. The Request for Financial Information
The credible evidence convinces me that during the second
and third negotiation sessions, the Employer by Lippolis in
seeking substantial give-backs, asserted that the Company
was losing money and could not afford to pay.
It is also clear that after Lippolis was replaced by Frank,
the latter couched his argument in terms of the Company’s
unwillingness to pay rather than its inability to pay. After
Frank was retained, the Company while still talking about
the poor economy, the reduction in its rent rolls, and the
lessening of its profits, asserted that it was not pleading in-
ability to pay as the justification for its demand for give-
backs.
In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the
Court stated:
Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. This is true about an asserted inability to pay
an increase in wages. If such an argument is important
enough to present in the give and take of bargaining,
it is important enough to require some sort of proof of
its accuracy. And it would certainly not be farfetched
for a trier of fact to reach the conclusion that bar-
gaining lacks good faith when an employer mechani-
cally repeats a claim of inability to pay without making
the slightest effort to substantiate the claim. Such has
been the holding of the Labor Board since shortly after
the passage of the Wagner Act. In Pioneer Pearl Button
Co., decided in 1936, where the employer’s representa-
tive relied on the company’s asserted ‘‘poor financial
condition,’’ the Board said: ‘‘He did no more than take
refuge in the assertion that the respondent’s financial
condition was poor; he refused either to prove his state-
ment, or to permit independent verification. This is not
collective bargaining.’’. . . This was the position of the
Board when the Taft-Hartley Act was passed in 1947
and has been its position ever since. We agree with the
Board that a refusal to attempt to substantiate a claim
of inability to pay increased wages may support a find-
ing of a failure to bargain in good faith.
The Board concluded that under the facts and cir-
cumstances of this case the respondent was guilty of an
unfair labor practice in failing to bargain in good faith.
We see no reason to disturb the findings of the Board.
We do not hold, however, that in every case in which
economic inability is raised as an argument against in-
creased wages it automatically follows that the employ-
ees are entitled to substantiating evidence. Each case
must turn upon its particular facts. The inquiry must al-
ways be whether or not under the circumstances of the
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 This allegation in the complaint was written in a rather peculiar
manner. Pars. 28, 29, and 30 allege that the Company refused to fur-
nish the names and addresses of strike replacements upon the
Union’s request of April 15, 1992. Unlike those allegations which
are pleaded in a straightforward manner, the complaint alleges at
par. 27 that the Respondent engaged in bad-faith bargaining by,
among other things, changing its position regarding inability to pay
‘‘when confronted with the Union’s request for books and records
. . . [and] refusing to provide such information on the grounds that
it was no longer asserting such claim.’’
It could be argued that the intention of the complaint was only to
allege that the violation consisted of the change of position and not
the refusal to furnish the information per se. Nevertheless, the Gen-
eral Counsel, at the hearing, put the Respondent on notice that she
was alleging that the Company’s failure to furnish financial informa-
tion was itself a violation of the Act. As this is sufficiently related
to the complaint allegations as written, and the allegation was fully
litigated, I see no reason to preclude the 8(a)(5) finding.
8 In Marbro Co., 284 NLRB 1303 (1987), the Board stated that
a company may unilaterally change terms and conditions of employ-
ment for those employees who were hired as striker replacements.
particular case the statutory obligation to bargain in
good faith has been met. . . . [W]e conclude that there
is support in the record for the conclusion of the Board
here that respondents did not bargain in good faith.
There is no question in my mind that when Lippolis as-
serted that the Company’s bargaining demands were based
on its lack of profitability and its inability to pay, the Union
was thereupon entitled to see and review the Company’s fi-
nancial records to test that claim. Having let the cat out of
the bag, I do not think that the subsequent statements by
Frank constituted a ‘‘retraction’’ which would operate to ob-
viate the Company’s previously incurred obligation. Having
raised this claim during the initial set of negotiations, I don’t
believe that the Company can so easily escape the obligation
to furnish information merely by couching its bargaining ar-
guments in a slightly different semantic mantle. See United
Stockyards Corp., 293 NLRB 1 (1989). In my opinion, if
Frank, upon taking up the Company’s cudgels, wanted to
cure the violation, he was required to furnish the records and
start afresh.7
C. Refusal to Furnish Information Regarding
Strike Replacements
After the strike commenced, the Company utilized em-
ployees of other operations to perform the struck work. At
some point in time before August 1992, the Company also
hired new people to work as temporary replacements.
The evidence shows that during the course of the negotia-
tions, the Union, on April 15, 1992, requested the names and
addresses of any strike replacements.
The Company’s immediate reaction to the Union’s request
was to assert that it was unwilling to give this information
because of acts of vandalism that had been committed in
connection with the strike. These were, however, limited in
scope and the incidents allegedly occurred in February and
March 1992. There was no contention by the Company that
the Union or the strikers had engaged in any acts or threats
against any strike replacements or other persons.
The information requested was ultimately turned over to
the Union on September 31, 1992, more than 5 months after
the initial request.
In Georgetown Holiday Inn, 235 NLRB 485, 486 (1978),
the Board specifically held that the employer violated the Act
when, during contract negotiations, it failed within a reason-
able period of time, to provide the Union with the names and
addresses of employees it had hired to replace the strikers.
In Burkart Foam, 283 NLRB 351, 356 (1987), enfd. 848
F.2d 825 (7th Cir. 1988), the administrative law judge con-
cluded that such information should be furnished and could
only be refused if there was a ‘‘likelihood of a clear and
present danger to the employees involved.’’ In affirming the
Board’s decision, the court stated, inter alia:
Unlike the cases Burkart relies on, here there is no
evidence of numerous incidents of union violence and
harassment of replacements . . . . See Soule Glass, 652
F.2d at 1097 (violence against replacements included
broken windows, slashed tires, assaults and verbal
threats); Shell Oil Co. v. NLRB, 457 F.2d 615, 616 (9th
Cir. 1972) (parties stipulated that violence against the
employees who returned to work during the strike oc-
curred both during the strike and for an indeterminate
period after the strike ended); Sign & Pictorial Union
Local 1175 v. NLRB, 419 F.2d 726, 738 (D.C. Cir.
1969) (uncontested facts revealed that striking employ-
ees harassed, threatened and assaulted replacements)
. . . .
In view of the above, I conclude that the information was
relevant; that it was not timely furnished and that the few
vandalism incidents alleged by the Respondent did not pose
a danger to the replacements. I therefore conclude that in this
respect the Respondent has violated Section 8(a)(1) and (5)
of the Act.
D. Alleged Unilateral Changes
The 1988 contract which expired on June 20, 1991, re-
quired that the Employer make contributions, on behalf of its
employees, to a Welfare Fund, a Pension Fund, an Education
Fund, a Prepaid Legal Plan, and an Annuity Fund. The com-
plaint alleges that since February 27, 1992, the Respondent
unilaterally ceased making contributions to the Welfare Fund,
the Pension Fund, and the Annuity Fund on behalf of those
of the bargaining unit employees who either did not go out
on strike (the five Hicksville employees), or abandoned the
strike and returned to work. The complaint does not allege
that the Company had any obligation to subsidize the strike
against itself by making payments on behalf of striking em-
ployees. Nor does it allege that the Company violated the
Act by not making contributions to these funds on behalf of
replacement workers.8
The evidence here shows that subsequent to the expiration
of the collective-bargaining agreement, the Company contin-
ued to make payment to all of the contractual funds. How-
ever, when the strike commenced on February 25, 1992, the
Company ceased making all such payments on behalf of all
of its bargaining unit employees. Thereafter, at the meeting
on February 27, 1992, the Company notified the Union that
it would not make any such payments until and unless a new
contract was signed. Frank explained that the purpose of this
was to put pressure on the Union to make concessions by
‘‘starving’’ the funds. Neither at this nor any other point dur-
781CENTRAL MANAGEMENT CO.
9 See Taft Broadcasting, 163 NLRB 475 (1967), affd. 395 F.2d
622 (D.C. Cir. 1968); Colorado Ute Electric Assn., 295 NLRB 607,
609 (1989); and Sacramento Union, 291 NLRB 552, (1988). 10 See Rescar, Inc., 274 NLRB 1, 2 (1985).
ing the negotiations did the Employer propose to eliminate
these benefit funds or propose to substitute different plans to
accomplish the same purposes. It also is clear that at the time
the Company ceased making these payments, there was no
impasse in the negotiations.
In May 1992, the Company decided to resume payments
to the Union’s Welfare Fund on behalf of the five Hicksville
employees who never engaged in the strike. In doing so, the
Company paid the money owed, retroactive to February
1992, so that there was no break in their coverage. It did not,
however, resume payments to the Pension Fund or Annuity
Fund on their behalf. As to those employees who abandoned
the strike and returned to work, these people were placed
into the Company’s medical plan covering managerial and
clerical employees. As to returning strikers, the Company
made no payments on their behalf to the Union’s Welfare
Fund, the Pension Fund, or the Annuity Fund.
Pursuant to the National Labor Relations Act, the expira-
tion of a collective-bargaining agreement does not give an
employer a license to unilaterally modify or terminate the
then-existing terms and conditions of employment as they are
defined in the contract. On the contrary, an employer is re-
quired to maintain such terms and conditions, including pay-
ments to benefit funds (but not remittance of union dues)
until a new agreement is reached which modifies or termi-
nates such obligations; or until after an impasse is reached
whereupon a company may unilaterally implement some or
all of its last contract offer;9 or until the Employer is legally
discharged from its obligation to recognize and bargain with
the Union. (For example, if employees, pursuant to a Board
election, vote the Union out.) Moreover, while it is permis-
sible for an employer in a strike situation to unilaterally es-
tablish terms and conditions for newly hired employees who
are hired as strike replacements, it cannot do the same for
those people who were employed before the commencement
of the strike and whose working conditions were defined by
the expired contract. This latter group would include employ-
ees who never went out on strike and employees who aban-
doned a strike and returned to work. Marbro Co., supra.
Based on the above, I conclude that the employer violated
Section 8(a)(1) and (5) of the Act by:
1. Failing to make payments to the Pension, Welfare, and
Annuity Funds established pursuant to the expired contract
on behalf of all bargaining unit employees who abandoned
the strike and returned to work.
2. Failing to make payments to the Pension and Annuity
Funds on behalf of those bargaining unit employees who
never participated in the strike.
E. Bad Driving
Having concluded that Henry Nelkin, on July 18, 1992,
drove in a reckless manner with the intention of threatening
a striker with physical harm, I conclude that this act con-
stituted a violation of Section 8(a)(1) of the Act. Daniel Fin-
ley Allen & Co., 303 NLRB 846 (1991).
F. Alleged Surface Bargaining
The General Counsel alleges that the Respondent, by its
conduct both at and away from the bargaining table, includ-
ing all of the acts described above, engaged in bad-faith bar-
gaining with no intention of reaching an agreement.
Section 8(d) of the Act does not compel either party in a
collective-bargaining relationship to agree to a proposal or to
make a concession. As to mandatory subjects of bargaining
(relating to wages, hours, and other terms and conditions of
employment), the Act does not require either party to yield
or compromise its position. As stated by the Supreme Court
in NLRB v. American National Insurance Co., 343 U.S. 395,
404 (1952):
[T]he Board may not either directly or indirectly, com-
pel concessions or otherwise sit in judgment upon the
substantive terms of collective bargaining agreements.
The Court further stated in H. K. Porter Co. v. NLRB, 397
U.S. 99, 107–108 (1970):
It is implicit in the entire structure of the Act that the
Board acts to oversee and referee the process of collec-
tive bargaining, leaving the results of the contents to
the bargaining strengths of the parties. . . . While the
parties’ freedom of contract is not absolute under the
Act, allowing the Board to compel agreement when the
parties themselves are unable to agree would violate the
fundamental premises on which the Act is based—pri-
vate bargaining under governmental supervision of the
procedure alone, without any official compulsion over
the actual terms of the contract.
The Supreme Court in NLRB v. Insurance Agents, 361
U.S. 477, 489 (1960), stated:
The presence of economic weapons in reserve, and their
actual exercise on occasion by the parties, is part and
parcel of the system that the Wagner and Taft-Hartley
Acts have recognized. . . . [T]he truth of the matter is
that at the present statutory stage of national labor rela-
tions policy, the two factors—necessity for good-faith
bargaining between parties, and the availability of eco-
nomic pressure devices to each to make the party in-
cline to agree on one’s terms—exist side by side.
In Peelle Co., 289 NLRB 113, 120 (1988), I stated:
It therefore is not necessarily unlawful for the
stronger side to make demands or take positions con-
sistent with its strength. Quite obviously, the respective
strength of a union versus a company in bargaining is
largely dependent on the support of the employees it
represents, their willingness to strike, and the vulner-
ability of the company to a strike. . . . Furthermore,
collective bargaining is basically a two-way street. Thus
although a union may lawfully make demands designed
to improve existing employee wages and benefits, there
is nothing in the Act that denies an employer the right,
. . . to demand give-backs.10
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 On the other hand, in a situation where a company’s proposals
called for a union to waive its right to strike and negotiate griev-
ances, while coupled with an almost unlimited management rights
clause, the Board concluded that the company essentially offered a
contract which would have been illusory because unenforceable.
Prentice-Hall, Inc., 290 NLRB 646 (1988).
12 Apart from a few strikers who abandoned the strike, the others,
as of the time of the hearing, had not made offers to return to work.
To date, all employees who have asked to return have been rein-
stated immediately.
Although a company may press for favorable contract
terms, it may not engage in futile or sham negotiations with
the intention of never reaching an agreement. NLRB v. Her-
man Sausage Co., 275 F.2d 229, 232 (5th Cir. 1960). In
Abingdon Nursing Center, 197 NLRB 781, 787 (1972), the
Board stated:
Good faith, or want of it, is concerned essentially with
a state of mind. . . . That determination must be based
upon reasonable inference drawn from the totality of
conduct evidencing the state of mind with which the
employer entered into and participated in the bargaining
process. . . . All aspects of the Respondent’s bar-
gaining and related conduct must be considered in
unity, not as separate fragments each to be assessed in
isolation.
Although the Board may look at specific contract pro-
posals in the context of a surface bargaining allegation, it
generally will refrain from deciding that particular proposals
(if involving mandatory subjects of bargaining) are either
‘‘acceptable’’ or ‘‘unacceptable’’ and will avoid making
purely subjective judgments concerning the substance of pro-
posals. Reichold Chemicals, 288 NLRB 69 (1988).11
There is nothing intrinsically unlawful where either a
union or a company changing its position during the course
of negotiations, albeit if joined with other conduct, it may be
used as an indicia of bad faith. Compare Hendrick Mfg. Co.,
287 NLRB 310 (1987), and Hickinbotham Bros., 254 NLRB
96, 102–103 (1981), with Houston County Electric Coopera-
tive, 285 NLRB 1213, 1214–1215 (1987). The test ultimately
must be whether the conduct of a party to negotiations, in
its totality, reveals whether or not it intends to reach an
agreement.
In the present case, I do not believe that the General
Counsel has proven that the Respondent had no intention of
reaching an agreement with the Union.
When the negotiations opened, the Company had five
major demands which it presented to the Union. The Union,
for its part, basically insisted that the Company sign, as is,
the Long Island pattern agreement. There was nothing in the
Company’s demands that did not consist of mandatory sub-
jects of bargaining and it clearly was not illegal for the com-
pany to insist on these give-backs. The parties essentially
stalled on these issues during the first three bargaining ses-
sions which were held in January and February 1992. The
Union thereupon commenced a strike on February 25.
With a strike imminent, the Company decided to hire a
labor lawyer to represent it rather than its vice president,
Lippolis, who for better or worse, was viewed by the Union
as an amateur. When Frank was advised of the status of ne-
gotiations, he decided to continue making the company de-
mands previously asserted and to make additional demands,
some of which he hoped to trade away for union conces-
sions. Part of Frank’s strategy was not only to insist on a 1-
year wage freeze, but to insist on not agreeing to any
changes that the Union had made from the 1988 contract.
Given the change in the Company’s representative, the
strike and the concomitant testing of the economic resiliency
of both parties, I cannot say that the Company’s change in
its bargaining posture evidenced its unwillingness to reach an
agreement. In fact, the Company made specific contract pro-
posals to the Union, discussed them at length, and made con-
cessions as bargaining progressed. The Union, while within
its rights, made absolutely no concessions of its own; Sturm
testifying that it was not the Union’s policy to negotiate
against itself. Apparently what he means by this is that after
the Company made a concession, the Union’s policy was to
stand pat and wait for more concessions. In effect, the
Union’s position from the first to the last day of negotiations
was that the Company should sign the Union’s proffered
contract as presented and maybe the Union might, if the
president approved, agree to lower the staffing level to 24.
(Even as to that, the Union made no firm offer.)
Although one can say that the Company made regressive
proposals which sought to modify the expired contract, and
asked for even more give-backs after the strike commenced,
I cannot say that the failure to reach an agreement was
caused by the Company’s actions. It is equally clear that the
Union’s representative entered these negotiations with, if not
a closed mind, a mind that was not particularly open. The
principal issues between the parties did not really change
from the first to the last day. The Company wanted (1) a
wage freeze, (2) the right to subcontract, (3) a reduction in
force, (4) a reduction in the number of employees having
free apartments, and (5) no retroactivity. Compared to these
issues, the additional proposals placed on the bargaining
table by Frank were far less substantial.
G. Unfair Labor Practice Strike
It is alleged that the strike which began on February 25
was an unfair labor practice strike as it was caused by the
Employer’s conduct on February 6, 1992. The Employer,
while denying this contention, has notified the Union that it
has only hired temporary replacements and will reinstate the
strikers when and if they ask for the jobs back. (In effect,
the Employer has decided to treat the strikers as if they were
unfair labor practice strikers.)12
The testimony of the Union’s witnesses was that they de-
cided to strike and to announce the strike as being in protest
of the February 6 unfair labor practice. It could be argued,
however, that this was a pretext, seized upon to convert what
would otherwise be an economic strike into an unfair labor
practice strike with the concomitant effect of precluding the
employer from hiring permanent replacements. On the other
hand, if a strike is even partially caused or prolonged by a
company’s unfair labor practices, it will be defined as an un-
fair labor practice strike, notwithstanding that it is also moti-
vated by economic considerations. Mastro Plastics Corp. v.
NLRB, 350 U.S. 270 (1956); Teamsters Local 662 v. NLRB,
302 F.2d 908 (D.C. Cir. 1962); Workroom For Designers,
274 NLRB 840, 856 (1985).
783CENTRAL MANAGEMENT CO.
13 As noted above, the Company, in May 1992, resumed making
payments to the Welfare Fund on behalf of those of its bargaining
unit employees who never went on strike and made those payments
retroactive to the commencement of the strike. Accordingly, no mon-
eys would be owed by the Employer on their accounts.
In my opinion, the facts in this case are uncomfortably
ambiguous. In view of the fact that except for a few employ-
ees, neither the strikers nor the Union on their behalf, have
offered to return to work, and as the Company has com-
mitted itself to rehire these strikers when they make such an
offer, I do not think that it is necessary to decide, in this pro-
ceeding, whether the strike is an economic or unfair labor
practice strike.
CONCLUSIONS OF LAW
1. By soliciting employees to sign a petition to get rid of
the Union, the Employer has violated Section 8(a)(1) of the
Act.
2. By driving a vehicle in a reckless manner so as to
threaten a striker with physical harm, the Employer has vio-
lated Section 8(a)(1) of the Act.
3. By refusing to furnish financial information to the
Union after claiming inability to pay, the Employer has vio-
lated Section 8(a)(1) and (5) of the Act.
4. By failing to timely furnish the names and addresses of
strike replacements, the Employer has violated Section
8(a)(1) and (5) of the Act.
5. By unilaterally ceasing to make payments to the
Union’s Pension and Annuity Funds on behalf of those bar-
gaining unit employees who were employed as of the time
that the strike commenced, and who either returned to work
during the strike or never went on strike, the Employer has
violated Section 8(a)(1) and (5) of the Act insofar as it has
not made payments for such periods of time that these em-
ployees actually worked.
6. By unilaterally ceasing to make payments to the
Union’s Welfare Fund on behalf of those bargaining unit em-
ployees who abandoned the strike and returned to work dur-
ing the strike, the Employer has violated Section 8(a)(1) and
(5) of the Act insofar as it has not made such payments from
the date of their return.
7. The Employer has not engaged in surface bargaining as
alleged by the complaint.
8. The aforesaid violations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Insofar as payments to the Pension, and Annuity Funds, I
shall recommend that the Employer make these funds whole
by making contributions to these funds, at the rates contained
in the 1988–1991 contract, on behalf of those employees
who either did not go out on strike or who abandoned the
strike and returned to work. In this respect, no contributions
would be owed on behalf of any employee for such period
of time that he engaged in the strike.
I shall also recommend that the Employer make the Wel-
fare Fund whole for such payments, at the 1988–1991 con-
tract rate, on behalf of those employees who engaged in the
strike but who returned to work during the strike. The obli-
gation to resume such payments would begin on the date that
each employee returned to work.13 In this regard, the Em-
ployer argues that it should not be required to make the Wel-
fare Fund whole for these employees because when they re-
turned to work they were given an alternative health plan at
the Employer’s expense.
In Manhattan Eye, Ear & Throat Hospital, 300 NLRB 201
(1990), the Board overruled Hassett Maintenance Corp., 260
NLRB 1211 (1982), and held that an employer who unilater-
ally substituted medical insurance plans (and incurred the
cost of a new plan), nevertheless was required to make
whole the old welfare fund for those contributions that it un-
lawfully withheld. The Board stated:
In the case of unilateral changes in negotiated benefits
in connection with an unlawful withdrawal of recogni-
tion, the Act’s purpose of protecting the collective-bar-
gaining process is, in our view, best served by requiring
respondents to restore the status quo ante through the
mechanism of adherence to the terms of the agreements
they have negotiated.
Viewing the remedy recommended by the judge in
purely monetary terms, we still reject the Respondent’s
arguments that ordering it to reimburse the funds re-
quires it to ‘‘make whole’’ the funds and the employees
where no losses have occurred. There can be no doubt
that employees have, in addition to a stake in receiving
benefits negotiated on their behalf by their chosen rep-
resentatives, a clear economic stake in the viability of
funds to which part of their compensation is remitted.
[Citing Stone Boat Yard v. NLRB, 715 F.2d 441, 446
(9th Cir. 1983), and Roman Iron Works 292 NLRB
1292 fn. 15 (1989).]
The court of appeals in Manhattan Eye, Ear & Throat
Hospital v. NLRB, 942 F.2d 151 (2d Cir. 1991), refused to
enforce the Board’s Order insofar as the remedy required the
company to make the funds whole. Nevertheless, it seems to
me that the reason the court refused to enforce that portion
of the Order was that in the interim, the Union had dis-
claimed any interest in representing the affected employees
and therefore had effectively abrogated the employer’s obli-
gation to bargain. The court stated:
By refusing to enforce the Board’s decision in this
case we do not hold that in the exercise of its broad
remedial power, it is not empowered to order imposi-
tion of the status quo ante in other cases where an em-
ployer unilaterally discontinues payments to union-
sponsored benefit funds. . . . We simply rule that in
the matter at hand, where the employees—who were
compensated during the relevant period by substitute
benefit plans and who prior to the Board’s decision,
disclaimed any present or future interest in being cov-
ered by the Joint Funds—have little economic stake in
the future financial stability of those funds, imposition
of the status quo ante does not serve the remedial pur-
poses of the Act because it fails to benefit the employ-
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees, is unduly harsh on the employer, and results in a
windfall for the union funds.
The Union in the present case has not disclaimed any in-
terest in representing the employees. Nor has the employer
been legally discharged from its obligation to bargain with
the Union despite the fact that the parties are presently at an
impasse. Therefore, it is my opinion that the instant case pre-
sents a different set of facts than those which convinced the
Court in Manhattan Eye, Ear & Throat Hospital to withhold
the Board’s make-whole remedy.
Further, it is recommended that such payments to the var-
ious funds described above, be made with interest to be com-
puted according to the practice set forth in Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
[Recommended Order omitted from publication.]