Firch Baking Co. of Jamestown, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 414 (N.L.R.B. 1972)

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firch Baking Company of Jamestown , Inc. and Local
15520, International Union of District 50, Allied and
Technical Workers. Case 3-CA-4719
September 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 2, 1972, Administrative Law Judge'
Owsley Vose issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs nand has decided to affirm the rulings, findings,
and conclusions 3 of the Administrative Law Judge and
to adopt his recommended Order .4
that no impasse had occurred at the time Respondent put into effect the "fair,
firm offer." Quite apart from Respondent 's argument that N.LR B v. Gener-
al Electric Company, 418 F.2d 736 (C.A. 2), sanctions its "fair, firm offer"
bargaining strategy, which argument we do not pass upon here , Respondent's
December 30 letter to the employees makes it clear that the "fair, firm offer"
was not so much an offer as it was a promise to Respondent 's employees that
a specified wage increase would be granted Inasmuch as the employees were
promised the wage increase irrespective of its acceptance or rejection by the
Union , before the increase had even been presented to the Union, therefore
the wage increase was in fact a firm decision which removed the element of
bargaining, and a fortiori, no good-faith bargaining impasse had resulted
when the Respondent effectuated its "fair , firm offer." N.L.R.B v Benne
Katz, etc, d/b/a/ Williamsburg Steel Products Co, 369 U S. 736; Terry Indus-
tries of Virginia, Inc, 188 NLRB No. 102.
° Respondent contends here as it did unsuccessfully before the Administra-
tive Law Judge that the complaint should be dismissed because the allega-
tions of the complaint are unrelated to the underlying charge The charge was
filed on December 29, 1971, at least 2 days before Respondent 's acts found
unlawful herein . It alleged a violation of Sec. 8(a)(1) and (5) in that Respon-
dent "refused to meet at reasonable times for the purpose of bargaining and
attempted to by-pass the contractual bargaining representative and deal
directly with the employees in the appropriate bargaining unit" The com-
plaint alleged in essence that Respondent refused to bargain with the Union
in violation of Sec. 8(aXl) and (5) in that on or about January 2, 1972,
Respondent unilaterally increased the wages and changed other benefits of
its employees and bargained with individual employees rather than their
union representative We find that the complaint alleged unfair labor prac-
tices related to those alleged in the charge, and that the unfair labor practices
grew out of the same course of conduct . N L R.B v. Fant Milling Company,
360 U S. 301 (1959) Therefore we find no merit in Respondent's contention.
TRIAL EXAMINER'S DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Firch Baking Company of
Jamestown, Inc., Jamestown and Olean, New York,
its officers, agents , successors , and assigns , shall take
the action set forth in the said recommended Order.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Respondent has requested oral argument on the question of the lawful-
ness of its "fair, firm , final offer" bargaining strategy However, we agree with
the Administrative Law Judge that the only question to be decided here is
whether an impasse had occurred at the time Respondent implemented its
"fair, firm offer" without the Union's consent . On the latter issue, the record,
exceptions , and briefs adequately present the positions of the parties, and
therefore Respondent 's request is hereby denied.
3 In adopting the Administrative Law Judge' s finding that Respondent did
not bargain to impasse before unilaterally effectuating its economic propos-
als on January 2, 1972, we find significant Respondent 's letters distributed
to its employees and the employee members of the Union's bargaining com-
mittee on December 27 and 30, 1971 Attached to the December 27 letter was
a copy of Respondent 's letter to the Union enclosing its "fair, firm offer,"
which the Union did not receive until December 29 No bargaining sessions
were held between December 27 and 30, when Respondent distributed an-
other letter to the employees in which Respondent declared that.
In the event that the union does not accept our fair, firm offer by the
time that the contract expires [midnight January I, 19721, we have no
alternative but to make our fair, firm offer to you directly And of
course, we sincerely hope that you will accept it and continue on thejob
Respondent effectuated its "fair, firm offer" on January 2, 1972, as it had
stated it would , even though that offer had been on the table at only two
bargaining sessions on December 30 and 31 before the offer was implement-
ed. In our view, this conduct provides additional support for our conclusion
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case was heard at
Jamestown, New York, on March 27 and 28, 1972, pursuant
to a charge filed on December 29, 1971, and a complaint
issued on February 16, 1972. The only issue raised by the
complaint is whether the action of the Respondent, herein
sometimes called the Company, in instituting certain
changes in wages and other conditions of employment dur-
ing the pendency of collective-bargaming negotiations, vio-
lated the Company's obligations under Section 8(a)(5) and
(1) of the Act. The resolution of this question turns upon
whether the parties had reached an impasse in the negotia-
tions at the time the action was taken.
Upon the entire record and my observation of the wit-
nesses, and after due consideration of the brief filed by the
Company, I make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE COMPANY
The Company is a division of Firch Baking Company,
Inc., a Pennsylvania corporation, which is a wholly owned
subsidiary of Kane-Miller Corp. The Company is engaged at
Jamestown and Olean, New York, in the production, sale, and
distribution of baked goods. During the year preceding the
issuance of complaint the Respondent caused to be delivered
to its Jamestown, New York, plant from out-of-state sources
more than $50,000 worth of raw materials and supplies. Upon
the foregoing undenied facts I find that the Company is en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
199 NLRB No. 62
FIRCH BAKING COMPANY 415
II THE LABOR ORGANIZATION INVOLVED
Local 15520, International Union of District 50, Allied
and Technical Workers, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Respondent's Unilateral Action in
.Violation of Section 8(a)(5) and (1)
of the Act
1. Background
The Company for some time in the past has had collec-
tive-bargaining contracts with unions representing four
units of its employees. Local 15520, the Union here in-
volved, represents the employees in two of these units, one
consisting of certain production employees working inside
the Jamestown bakery, and the other consisting of the
Company's various drivers, including wholesale driver-
salesmen and transport drivers, and also sales clerks at the
Company's thrift stores in Jamestown and Olean. The in-
stant case involves the Company's alleged unilateral action
during collective-bargaining negotiations with the Union as
the representative of the employees in the latter stated unit,
the drivers and sales clerks unit.
The labor contract covering the employees in this unit,
dated January 8, 1969, by its terms automatically renewed
itself on midnight January 1, 1972, unless notice of a desire
to cancel, terminate, or modify the contract was given the
other party the requisite period before the automatic renew-
al date. On October 27, 1971, the Union mailed to the
Company a notice of its desire to modify or terminate the
contract.
As stated more fully below, the first bargaining session
was held on November 10, 1971. Thereafter nine additional
bargaining meetings were held in November, December,
and January, 1972. At the insistence of the Company, all
these meetings were held during nonworking hours.
The Company's bargaining committee consisted of 11
members, including its president, vice president, secretary-
treasurer, the Jamestown plant general manager, the office
manager at Jamestown, the supervisor of terminal opera-
tions at both Jamestown and Olean, three supervisors at
Olean, and three supervisors at Jamestown, including one
who supervised the tractor-trailer division. Secretary-Treas-
urer James Cullen was the principal spokesman for the
Company. John Dwyer, the president of the Company, at-
tended only one or two meetings, including the first.
The Union's bargaining committee was composed of
Thomas Washington, an International representative of the
Union, and six employee members, including Union Presi-
dent Kenneth Eklund. Washington was the Union's princi-
pal negotiator.
The employees in the bargaining unit work a 5-day
week, during days for the most part, and have Wednesdays
and Sundays off. Because of the Company's continued in-
sistence that all negotiations be carried on during nonwork-
ing hours, this meant that the only sustained periods avail-
able for negotiations were on Wednesdays and Sundays.
2. Sequence of events
Because of the narrow issue in this case I find it unnec-
essary to treat the discussions at the various bargaining
meetings in detail. I believe that it will suffice if I state in
general terms the events at bargaining meetings and the
other intervening events which cast light on the question
whether an impasse in the negotiations had been reached at
the time the Company instituted the changes in wages and
working conditions which the General Counsel complains
were put into effect without adequate consultation with the
Union.
November 10, 1971 first bargaining meeting: The Union
submitted a four-page document listing proposed changes
in the existing contract, explained its proposals, and invited
questions regarding them. One of the Union's new propos-
als contemplated bargaining during working hours during
the last week of the contract term. The Company took the
position that it was not possible to have supervisors relieve
union committee members so they could participate in the
bargaining sessions, asserting that the supervisors could not
be spared from the regular duties for the full day that would
be required. The Union proposed to reduce the number of
employee members on the bargaining committee so as to
lessen the burden on the Company. However, the Company
said that this would not work.
November 17, 1971-second bargaining meeting: After a
discussion of the Union's demands, which the Company
characterized as "astronomical," the Company stated that,
after evaluating future prospects, it would make a "fair firm
offer" which it indicated would be both fair and final.I The
Union proposed that the Company agree to engage in some
bargaining during working hours to demonstrate its good
faith and indicated that as little as 25 percent of the bargain-
ing during working hours would satisfy it. The Company
said this was impossible.
November 30, 1971: The Company handed to each of
the employees in the unit the first of its letters in its employ-
ee communications program. The Company also mailed the
letters to the employees' homes. This was the procedure
followed with respect to all letters sent to employees in
connection with its employee communications program. In
the letter, after stressing the precarious condition of the
Jamestown bakery as an independent entity and the need
for giving management flexibility in its operations if the
employees were to enjoy "a good, steady job," the Company
invited the employees to communicate with company offi-
cials and supervisors concerning the negotiations and to
give their ideas and opinions. The Company also emphasiz-
ed the need for scheduling a number of bargaining meetings
before the contract expired and attached a proposed sched-
ule of 15 meetings, all during nonworking hours.
December 1,1971-third bargaining meeting: This meet-
ing opened with a further discussion of future meeting
i Admittedly in respect to making its "fair firm offer" and in conducting
an employee communications program, the Company was patterning its
bargaining strategy after that engaged in by the General Electric in N L.R B
v. General Electric Co, 418 F 2d 736 (C A. 2), cert. denied 397 U S. 695. While
the Second Circuit, with Judge Friendly dissenting in part, upheld the
Board's findings of violations of Sec 8(a)(5) of the Act by General Electric,
in the Company's view, the majority opinion of the Second Circuit sanctions
its course of conduct in this case Because of the narrow issue presented by
the complaint in this case I do not reach this question.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dates . International Representative Washington indicated
that he did not negotiate on Sundays . The Union stated that
the setting of bargaining dates was a matter to be mutually
agreed upon and proposed that supervisors relieve the few
employees involved on a reduced union bargaining commit-
tee so that they could attend during working hours. The
Union pointed out that this was what was done when the
employees were sick or were on vacation . The Company's
response was that it needed all its supervisors at the bargain-
ing table . The Company presented a completely rewritten
proposed draft of a contract covering most of the noneco-
nomic matters dealt with in the 1969 contract . Included
were union-security and dues checkoff provisions and a
provision for compulsory arbitration . The provisions of the
Company's proposed draft, as well as the Union 's propos-
als, were discussed but no agreement on any of the provi-
sions was reached . The union committee left without any
date being set for the next meeting . As it did so , Cullen
asked Washington about a future meeting date . Washington
replied that no further meetings were scheduled and that
none would be until the Company made some concessions
with regard to bargaining "on the clock."
December 2, 1971: The Company issued its second let-
ter in its employee communications program in which, after
mentioning, among other things, Washington 's refusal to
meet on Saturday , December 4 (at 6 p .m.), unless the Com-
pany agreed to meet at noon on Monday, December 6, it
characterized Washington's action as "outrageous, arrogant
and unfair, " and stated that it was the Company 's intention,
if Washington refused to meet on Saturday , December 4,
except on condition that the Company also meet during
working hours on the following Monday , to file unfair labor
practice charges against the Union based on Washington's
conduct.
The Company wrote Washington a letter stating that
his insistence on meeting during working hours on Decem-
ber 6 constituted a refusal to bargain collectively and would
be the subject of charges filed with the Board unless he
ceased such insistence.
December 7, 1971: Washington replied , stating that the
Union was "willing to concede" that "most" of the bargain-
ing be carried on during nonworking hours , but that it was
unwilling to agree that "100%" be conducted in off-duty
hours.
The Company replied to Washington , refusing to ac-
quiesce in Washington 's insistence that the Company agree
to some bargaining during working hours , stating that this
"is tantamount to dictating the size of our Committee" and
that the Company "needs the services of all its [committee]
members at the bargaining table." The Company suggested
bargaining meetings on Saturday and/or Sunday , Decem-
ber 11 or 12, during nonworking hours.
December 15, 1971 fourth bargaining meeting: Before
commencing the negotiations the parties discussed the next
meeting date . The Union urged that it was customary for
supervisors to replace route salesmen when they were ill and
that it saw no reason why they could not occasionally re-
place three of the Union's six employee committeemen
while they were attending bargaining sessions . The Union
proposed Friday , May 17 , at 9 a .m., during working hours,
for the next meeting . From the discussions at this meeting
and a prior telephone conversation between President
Dwyer and Washington , the Union received the impression
that the Company was acquiescing in holding the proposed
Friday bargaining session during working hours . The Com-
pany presented a rewritten proposed draft of the remaining
noneconomic matters not covered in its December 1 draft.
A discussion followed of the provisions of both the
Company's December 1 and 15 drafts . The Union agreed to
a number of the provisions of the Company 's December 1
draft and to one of the provisions of the December 15 draft.
The Company announced that its economic proposals,
which it termed its "fair firm offer ," would be forthcoming
in the next day or two . The discussion turned to the next
meeting date . From comments of company negotiators it
appeared to the Union that the Company was going back
on its tentative agreement to meet during working hours on
the following Friday . To Washington's question as to
whether there would be any repercussions if three employee
members of the union bargaining committee attended this
meeting during working hours , Cullen replied , "Yes," that
the Company "would have to take whatever disciplinary
actions were necessary under the circumstances." Washin-
ton replied that he had been "tricked " into participating in
this bargaining session and with that picked up his papers
and walked out of the meeting room. The employee mem-
bers of the bargaining committee quickly followed.
December 17, 1971: The Company distributed its third
letter in its employee communications program. It is devot-
ed largely to the disagreement between the Company and
the Union regarding "off-the-clock" versus "on-the-clock"
bargaining and the consequent difficulties of scheduling'
future bargaining meetings . The letter states, in part, as
follows:
As we have said time and time again , we can't allow the
Union to dictate a condition that pulls the Supervisors
away from the bargaining table so that the Union Com-
mittee Employees can be at the bargaining table! What
motive does Mr. Washington have for this?
We also repeated our willingness to meet every day or
night until December 31, 1971, with our whole Com-
mittee , of course , but his offer was again brushed aside
by Mr. Washington . So we are no further ahead than
we were on December 1, and there are only 15 days
until the contract expires . What does Mr. Washington
propose to do then? We suspect that he will be looking
for an extension of the labor contract to make up for
the time that he has caused everyone to lose with his
silly games! Well, there will be no extension of the
contract . If Management cannot persuade Mr. Wash-
ington to bargain in good faith and come back to the
bargaining table, then we will have no alternative but
to make our fair , firm, economic offer to the Union
Committee by mail ! If this fair, firm offer is not accept-
ed by Mr. Washington, and the time runs out on Mr.
Washington then we will be legally entitled to make
this offer directly to all of our employees-because we
must keep the Bakery running! The livelyhood of 160
working people depend on Management to meet their
responsibilities.
The letter accuses Washington of acting unlawfully in at-
tempting to obtain any bargaining during working hours
FIRCH BAKING COMPANY 417
and concludes with an invitation to the employees to con-
tact company officials or their supervisors if they have ques-
tions or opinions to express.
December 20, 1971: Company Negotiator Cullen met
with Washington at Dunkirk , New York , in the presence of
Federal Mediator Samuel Sackman . This meeting had been
arranged by Sackman at the request of the Company. Cul-
len opened the meeting by reiterating the Company 's insis-
tence that it could not allow supervisors to replace employee
committeemen to enable them to participate in bargaining
sessions during working hours . Washington with equal firm-
ness replied , as Cullen testified, that "some on-the-clock
bargaining had to take place or we would not be back to the
bargaining table ." Sackman proposed a meeting on Tues-
day, December 28, at 6 p.m. (nonworking hours), Wednes-'
day, December 29, at 10 a.m. (nonworking hours),
December 30 at 2 p .m. (working hours), and 2 p.m. on
December 31 (working hours). Cullen rejected Sackman's
proposal and explained to Washington that bargaining on
the clock "couldn't be because it would effect the opera-
tions" and that it had never been done in the past in the
sales department . Cullen persisted in his refusal to accept
Sackman's "package" explaining after consulting President
Dwyer in Erie , Pennsylvania, over the telephone , that it
included "on-the-clock" bargaining dates and "we could
not have supervision substituting for the Union Bargaining
Committee ." Washington indicated that he had wasted his
time in coming to Dunkirk , stating that the Union "had
gone 80 percent of the way in this and that was the end of
it." This is Cullen's testimony . The meeting ended with no
further meetings scheduled.
December 27, 1971: The Company presented to the em-
ployee members of the union bargaining committee a letter
enclosing the Company 's "fair, firm offer" regarding eco-
nomic matters . The offer includes increases in wages,
changed pension benefits , changed health coverage, and
improved major medical benefits . The Company 's offer was
in outline form and not in the form of proposed contractual
provisions . The details concerning the changes in the pen-
sion plan were not set forth in the Company 's offer.
The Company distributed its fourth letter to employ-
ees. Enclosed with the letter were copies of an exchange of
telegrams between the Company and Washington concern-
ing proposed meeting dates, a copy of the Company 's letter
to the Union enclosing its "fair, firm offer," and the offer
itself . The letter states in part as follows:
... The Labor law has changed since we negotiated our
last contract . The former practice whereby the Em-
ployer started negotiations with an unrealistically low
offer and worked upward , is no longer necessary. Man-
agement has worked long and hard on the formulation
of this fair firm offer, and we can sincerely say that it
truly is as fair as it is firm. Our earlier letters have told
you about our economic picture and how we have sur-
vived where other bakeries have not . Moreover, this
offer is substantially in excess of the 5.5% maximum
allowed by the U .S. Government and of course is sub-
ject to approval of and application to the Pay Board.
As you know, an Employer's prices can be increased
only 2- 1/2% and the Price Board has already ruled that
an Employer can not obtain approval of price increases
to match even approved pay increases!
As I have mentioned in my last letter to you, if the
Union still refused to come to the bargaining table
without imposing illegal conditions we will have no
alternative but to file unfair labor practice charges
against the Union with the National Labor Relations
Board . Our labor attorney is now preparing these
charges which will be filed with the National Labor
Relations Board January 3 . Since time is running out,
this offer will be made directly to all of our employees
effective 12:01 a.m ., January 2, 1972.
We sincerely say that we agree with U.S. Mediator
Sackman that there is no reason why that there has to
be a strike on January 2, just because the contract
expires . Looking back on all of what has happened
these past two months with Mr. Washington , it appears
that his motive right along has been to pull a strike
against the Employer . There is no other reasonable
explanation for his behavior.
December 29, 1971: Washington saw for the first time
the Company 's "fair, firm" offer.
Washington sent the following telegram to the Compa-
ny:
I AM STILL WILLING TO 00 75 PERCENT WITH THE COMPANY ON
NEGOTIATION DATES AS LONG AS THE COMPANY SHOWS SOME
GOOD FAITH. I WILL STILL MEET THE OFFER I MADE TO YOU IN
MEDIATION ON DEC 20,1971 AT THE VINEYARD MOTEL . WE DO NOT
WANT TO HOLD ALL THESE NEGOTIATIONS ON COMPANY TIME WE
HAVE STATED THIS AT EVERY MEETING . WE ARE WILLING AND
READY TO MEET IMMEDIATELY ON MUTUALLY AGREED TIME.
The Union filed a charge with the Board 's Regional
Office alleging that the Company had violated Section
8(a)(5) and ( 1) of the Act by refusing to meet at reasonable
times for bargaining purposes and by attempting to by-pass
the Union and deal directly with the employees.
December 30, 1971 : The Company issued its fifth letter
to the employees . In it, after informing the employees that
their dues checkoff authorizations would expire on January
1, 1972, and explaining that they would be reimbursed for
the January dues which had already been deducted from
their paychecks, the Company stated , in part , as follows:
As we have said , management has the responsibility to
160 working people and their families, of keeping the
bakery running. The union will be legally entitled to
strike at 12 : 01 AM, January 2nd. We don't know if
they will . We do know that the production and mainte-
nance employees inside the bakery must continue to
work because that contract with Local Union 14030
does not expire until March 11 , 1972. In the event that
the union does not accept our fair , firm offer by the
time that the contract expires, we have no alternative
but to make our fair , firm offer to you directly. And,
of course, we sincerely hope that you will accept it and
continue on the job . In the event that any group of
employees refuses to accept the offer, then they will be
legally replaced by permanent new hires . We sincerely
hope that this will not be necessary.
December 30, 1971-fifth bargaining meeting: This meet-
ing was arranged by Federal Mediator Sackman at the re-
quest of the Company . The Company's economic offer was
discussed item by item . Washington , declaring that the offer
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was neither fair nor firm , rejected it in its entirety . He never-
theless continued to discuss various provisions of the offer
with the company committee . A discussion of the
Company's noneconomic proposals of December 15 ensued
and the Union agreed to two provisions of this proposal at
this meeting . The parties agreed to meet at 6 p.m. the follow-
ing day for a further meeting.
December 31, 1971-sixth bargaining meeting : The Com-
pany presented the Union with a document elaborating
upon, and setting forth in contract language , the Company's
"fair, firm offer." The Company also provided the Union
with a copy of the Kane-Miller Corp . Employees ' Retire-
ment Plan which is referred to in the Company 's "fair firm
offer," but did not furnish copies of the Kane-Miller Master
Insurance Plan, referred to in its offer , which contains the
details of the medical , surgical , and term life insurance cov-
erage which the Company was proposing to substitute for
the coverage provided under the 1969 contract . Copies of
the documents setting forth the details of the previous cov-
erage were given to the Union at this meeting , however. The
parties first discussed the contract language in the
Company's December 1 and 15 proposals . Then the parties
turned to the Company 's economic proposals . The various
items were discussed several times . The Company sought to
explain the advantages of the proposed retirement pro-
grams . The Union retreated from its demand for 5-percent
commission and accepted the Company's proposal for a 3
1/2-percent commission on drop sales. The parties also
agreed on several other provisions of the Company's "fair,
firm offer;" namely , provisions concerning eligibility for
holiday benefits , various provisions relating to vacation
benefits , and several miscellaneous noncost items. As the
meeting ended at 11:45 p .m. Washington announced that he
was going to have a Federal mediator at the next meeting.
January 1, 1972: At midnight , when the 1969 contract
expired, the Company put into effect its "fair , firm offer"
in its entirety, including the various provisions for wage
increases and improved employee benefits.
January 4, 1971: The Company issued its sixth letter in
its employee communications program in which it discussed
the Union 's charge filed with the Board and the asserted
lack of foundation for such a charge . In the letter the Com-
pany , after commenting that Washington was poorly ad-
vised on labor law, stated that Washington had bargained
"to a deadlock on an illegal condition"; i.e., Union's de-
mand for "some" bargaining during working hours. The
letter concluded with the announcement that "our unilat-
eral offer to all of you has been in effect since 12:01 a.m.
Sunday , January 2."
January 6, 1972-seventh bargaining meeting: The parties
discussed the Company 's economic proposals which had
been submitted in final form on December 31, after which
the Company announced that it had put these proposals
into effect on January 2. Emphasizing the finality of its
action , the Company stated , as Washington testified, "that
the law had been changed and they were able now to give
us one offer . They didn't have to start low and the Union
start high and work their way in between any more." Nei-
ther of the parties changed positions regarding the eco-
nomic actions taken by the Company.
January 15, 1972: The Company issued its seventh let-
ter to the employees in which it reported briefly on the
bargaining session on January 6, 1972, and announced that
a further meeting was scheduled for January 19. The letter
concluded with an expression of thanks to the employees for
continuing on the job despite the expiration of the contract.
(At no time during the negotiations had any suggestion been
made by the Union that a strike would occur upon the
expiration of the contract if agreement were not reached by
that time. Nor had the employees here involved gone out on
strike in the past.)
The Union held a meeting of its members at which the
failure to reach agreement with the Company was discussed.
It was decided to continue bargaining until February 1 and
then decide what course to pursue.
January 19, 1972-eighth bargaining meeting. The par-
ties discussed contract language and some agreements were
reached on noneconomic matters . The Union dropped a
few items from its list of proposed contract changes. The
Union asked if the Company was willing to move on any of
the economic items . The Company replied that its offer
(which had been put into effect) is "as fair as it is firm and
it's firm as it is fair."
January 23, 1972-ninth bargaining meeting: A further
discussion of the Company's contract language took place
and agreements were reached on a few items , including
agreement by the Company to shorten its proposed proba-
tionary period. The Company continued to insist on the
Union agreeing to the Company's "fair, firm offer" on eco-
nomic matters as a package.
January 26,1972-tenth bargaining meeting: The Union
agreed to two more provisions in the Company's proposals
and dropped a number of items from its list of proposed
contract changes, including proposed additional holidays,
additional funeral leave pay, pay for time spent processing
grievances, and company-furnished uniforms (under the ex-
pired contract the Company paid one-half of the cost of the
uniforms). The Company stated concerning its "fair, firm
offer," as Washington testified, that "this was it, this was as
far as they could go." The Union refused to agree to these
proposals, but stated that it would submit the proposals to
the employees in order to determine whether they would be
acceptable to them.
January 31, 1972: The Company handed to the employ-
ees the eighth and final letter in its employee communica-
tions program. In it the Company reported that it had met
with the Union on January 23 and 26 and invited all the
employees in the unit to a luncheon on the following Wed-
nesday (their day off) to hear an explanation about the
Company's contract language and to enable them to ask
questions about the Company's proposals.
February 1, 1972: At a union meeting the employees
voted to accept the Company's proposals of December 1,
15, and 31 (the "fair, firm offer" concerning economic
items), as modified during the negotiations.
February 2, 1972: The provisions of all three of the
Company's proposals were consolidated into a single doc-
ument and submitted to the Union for proofreading.
February 16, 1972. The consolidated proposals, consti-
tuting a comprehensive collective-bargaining contract expi-
ering on December 31, 1974, were signed by the Company
and the Union.
FIRCH BAKING COMPANY 419
3. Conclusions
It is well settled that an employer who takes unilateral
action regarding terms and conditions of employment then
in the process of being negotiated with the exclusive collec-
tive-bargaining representative of his employees violates his
collective-bargaining obligations under Section 8(a)(5) and
8(d) of the Act unless the parties have reached an impasse
in the negotiations . N.L.R.B. v. Katz, et al., 369 U.S. 736,
741-742. The Company does not dispute this legal proposi-
tion, but contends that the record in this case justifies the
conclusion that an impasse had been reached at the time it
put its "fair, firm offer" containing its economic proposals
into effect at midnight on January 1, 1972. I cannot agree.
The Respondent announced its intention to place its
"fair, firm offer" directly before the employees as a whole
at midnight on January 1 simultaneously with its initial
presentation of its economic proposals to the union commit-
teemen and the employees as a whole on December 27. This
was after only four bargaining conferences in November
and December and before the Union's principal negotiator
had even had a chance to see the Company's economic
proposals. The negotiations were actually only getting start-
ed at this time and there is no suggestion in the record that
either of the parties regarded the negotiations as having
bogged down over substantive matters at this early stage.
The parties were still in the early, probing stage of the
negotiations.
On December 30, before the fifth bargaining meeting
that evening, the Company in its letter to the employees
reiterated its intention to go to the employees directly with
its "fair, firm offer" upon the expiration of the contract
whether or not the Union in the meantime agreed to its
proposals.
While the Union, at the bargaining session on the eve-
ning of December 30, rejected the Company's "fair, firm
offer" in its entirety, it agreed to meet the following evening
for a further bargaining session . At this meeting on Decem-
ber 31 the Union agreed to several provisions contained in
the Company's "fair, firm offer." When this meeting termi-
nated the Union announced that it would have a Federal
mediator at the next meeting and it appears that both par-
ties contemplated at this time that further meetings would
be held.
At this time the Union had not been furnished with
copies of the Kane-Miller Master Insurance plan containing
the details concerning the Company's proposed changes in
medical, surgical, and term life insurance coverage, which
were among the proposals which the Company stated in its
letters that it intended to put into effect upon the expiration
of the contract. Although the company insurance proposals
contemplated a change in insurance carriers, the parties by
the close of the December 31 meeting had only begun to
discuss this change, which is an obligatory subject of collec-
tive-bargaining. See Wisconsin Southern Gas Company, 173
NLRB 480, 483-484.
After the December 31 bargaining meeting the parties
held four more bargaining sessions in January and these
negotiations culminated in a comprehensive 2-year collec-
tive-bargaining contract which was signed by the parties on
February 16, 1972. The facts of the case as a whole, in my
opinion, clearly warrant the conclusion that no impasse had
been reached when the Respondent took its unilateral ac-
tion regarding its economic proposals at midnight on Janu-
ary 1, 1972.
The Respondent does not articulate the basis for its
claim of impasse but instead relies almost exclusively on the
Board's decision in Midwest Casting Corporation, 194
NLRB No. 91, which is discussed in some detail below.
Some of the language in the Company's letters to the em-
ployees in which it charged Union Representative Washing-
ton with unlawfully bargaining "to a deadlock" over the
Union's demand that the Company should agree to hold
some bargaining sessions during working hours suggests
that the Company may be contending that the parties were
at an impasse over this issue . However, in view of the fact
that the Union, in response to the prodding of the Company
and a Federal mediator, ultimately capitulated and partici-
pated in bargaining exclusively during nonworking hours, it
is unreasonable to conclude that the parties were at an
impasse over this issue when it placed its "fair, firm offer"
into effect at midnight on January 1. And in view of the
further fact that the Union bargained during nonworking
hours on the evening of December 30 and until 11:45 p.m.
on December 31 (New Year's Eve), just 1 day before the
Company took the unilateral action herein complained of,
it is manifestly unreasonable to say that the parties had
reached an impasse over this issue at this time.2
With respect to the Board's decision in the Midwest
Casting case upon which the company relies, the Trial Ex-
aminer in that case concluded, with Board approval, on
2 It may be observed in passing that the Company's inflexible position on
the issue of "on-the-clock " versus "off-the-clock" bargaining introduced a
discordant note into the negotiations at the outset which rendered the nego-
tiations unnecessarily difficult I do not believe that it is true , as claimed by
the Respondent , that it required the services of all six of the minor supervisors
whom it placed upon its bargaining committee (in addition to its five top
officials) at each and every bargaining conference And this claim is not
altogether consistent with the Company 's further contention that it could not
spare the services of these supervisors to substitute for any of the drivers on
the Union 's bargaining committees because it required them at their posts
to perform their normal supervisory and servicing of customers functions. As
the Union pointed out, the Company utilized some of these supervisors to
substitute for drivers when they were ill or were on vacation. In my opinion
the record warrants the conclusion that the Company did not seriously
consider the resolution of this disagreement on any basis other than the
Union's complete capitulation to the Company's demand that all bargaining
be carried on during nonworking hours . While the Union was seeking to have
at least 25 percent of the bargaining sessions conducted during working hours
and with three employee committeemen present , had the Company had an
open mind on this issue it is possible that the controversy could have been
resolved on a basis that would have been more acceptable to the Company;
i e , with a lesser percentage of time spent in bargaining during working hours
and with fewer employee committeemen present . Because of the Company's
rigid position on this issue , the parties never reached the question whether
the committeemen should be paid for the time spent negotiating during
working hours The Company never raised this as an objection to bargaining
during working hours Of course the Union could not inflexibly insist on
employee committeemen being paid for time spent negotiating . It is not my
intention to suggest by this discussion that had the Respondent fully explored
all of the possible alternatives that it could not have adhered to its position
that all bargaining should be conducted during nonworking hours.
In view of the Company 's inflexible position on the issue of "on-the-clock"
versus "off-the-clock" bargaining and the use made by the Company of the
disagreement between the parties concerning this issue in its employee com-
munications program , I conclude that the Respondent seized upon the dis-
agreement between the parties on this issue as a vehicle for attacking the
Union and disparaging the motives of the union representative in an effort
to undermine the employees ' support for the Union and thereby obtain a
better bargain for itself. Whether this is a lawful bargaining strategy under
the circumstances of the case is, of course, not before me because this issue
was not raised by the complaint.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facts quite similar to those in the case at bar, that the parties
had reached an impasse on the wage issue before the em-
ployer put his last wage offer into effect and that the
employer's action, therefore, was not unlawful. In this con-
nection the Trial Examiner noted that neither the union nor
the employees protested against the employer's action and
in fact "acquiesced in the wage increase and continued to
work at the higher wage until such time as they chose to
strike."
The facts of the Midwest Casting case are distinguisha-
ble from those in the case at bar in two respects, at least, in
my opinion. In the Midwest Casting case at the bargaining
meeting held the day before the employer announced that
he was going to put into effect its final "wage package"
regardless of whether the union accepted it or not, the nego-
tiations were in such a deadlock that no further meetings
were arranged. Also, the Federal mediator present at this
meeting stated to both parties "that he felt there was no
room for settlement ." In the instant case , as found above,
at the final meeting before the Company's economic offer
was to become effective, progress in reducing the differ-
ences between the parties was achieved, "which negated the
proposition that there was not prospect of further move-
ment." F. A. Reynolds Co., Inc., 173 NLRB 418, 424, enfd.
424 F .2d 1068 (C.A. 5). In addition, the December 31
meeting ended with the parties contemplating that further
meetings would be held in which a Federal mediator
would participate.
With respect to the Trial Examiner's comments in the
Midwest Casting case about the failure of the union or the
employees to protest the employer's action in putting its
"wage package" into effect, my reading of the cases con-
vinces me that such failure to protest is without legal signifi-
cance in cases such as this. As stated by the Trial Examiner,
with Board approval, in Webb Furniture Corporation, 158
NLRB 1003, 1007, enfd. 366 F.2d 314 (C.A. 4):
If I understand the controlling decisions of the Board
then District 50 did not by mere silence on this issue
during the last meeting with the Respondent agree that
Respondent should have the right to continue unilat-
eral action on wage increases.
To the same effect are J. H. Bonck Company, Inc., 170
NLRB 1471, 1478, enfd. 424 F.2d 634, 638-639 (C.A. 5),
and Bier! Supply Company, 179 NLRB 741.
Upon all of the facts of the case, I conclude that the
parties had not reached an impasse in any areas of the
negotiations at the time the Respondent put into effect at
midnight on January 1, 1972, the economic proposals first
submitted by it to the union committeemen in summary
form on December 27, 1971. Accordingly, the Company's
unilateral action regarding its economic proposals violated
Section 8(a)(5) and (1) of the Act. See Terry Industries of
Virginia, Inc., 188 NLRB No. 102.
Olean special helper and thrift store sales clerks at its
Jamestown plant and Olean terminal, excluding office
clerical employees, administrative employees, guards,
professional employees, and supervisory employees as
defined in the Act.
2. By putting into effect on January 2, 1972, the eco-
nomic proposals previously submitted to the aforesaid Un-
ion without bargaining collectively with it concerning these
proposals to an impasse, the Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(5) and (1)
of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by taking certain unilateral action
regarding its economic proposals without first bargaining
collectively to an impasse about such proposals, my recom-
mended Order will direct that the Respondent cease and
desist from such conduct. My recommended Order will also
contain the usual affirmative provisions requiring the post-
ing of notices and the furnishing of a compliance report.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER3
The Respondent, Firch Baking Company of James-
town, Inc., Jamestown and Olean, New York, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 15520,
International Union of District 50, Allied and Technical
Workers, as the exclusive bargaining representative of the
employees in the appropriate unit stated in the Conclusions
of Law, above, by changing the wages, hours, or other terms
and conditions of employment of the employees in the ap-
propriate unit without bargaining collectively with the
aforesaid Union to an empasse about such changes.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its plant at Jamestown, New York, and at
its terminal at Olean, New York, copies of the attached
notice marked "Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 3, after being
duly signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt there-
CONCLUSIONS OF LAW
1. At all times on and after October 27, 1971, Local
15520, International Union of District 50, Allied and Tech-
nical Workers, has been the exclusive collective-bargaining
representative of the Respondent's employees in the follow-
ing appropriate unit:
Wholesale driver-salesmen, wholesale extra driver-
salesmen, transport drivers, extra transport drivers,
3 In the event no exceptions are filed to this recommended Order as provid-
ed in Sec. 102.46 of the Rules and Regulations of the National Labor Rela-
tions Board , the findings, conclusions , and Recommended Order herein
shall, as provided in Sec. 10(c) of the Act and in Sec. 102.48 of the Rules and
Regulations, be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
4 In the event that the Board 's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
FIRCH BAKING COMPANY 421
of, and be maintained by it for 60 consecutive days thereaf t-
er, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or cqvered by any other material.
(b) Notify the Regional Director for Region 3, in writ-
mg, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.5
5 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read - "Notify
the Regional Director for Region 3 , in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TOEMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
employees in the appropriate unit stated below without
bargaining collectively with Local 15520 to an impasse
about such changes. The appropriate unit consists of:
Wholesale driver salesmen, wholesale extra driver-
salesmen, transport drivers, extra transport driv-
ers, Olean special helper, and thrift store sales
clerks at our Jamestown plant and Olean terminal,
excluding office clerical employees, administrative
employees, guards and professional employees,
and supervisory employees as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the National
Labor Relations Act.
Dated By
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT refuse to bargain collectively with Lo-
cal 15520, International Union of District 50, Allied
and Technical Workers, by changing the wages, hours,
or other terms or conditions of employment of our
FIRCH BAKING COMPANY OF JAMES-
TOWN, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Ninth Floor, Federal Building, 111
West Huron Street, Buffalo, New York 14202, Telephone
716-842-3106.