Gloversville Embossing Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1994

314 N.L.R.B. 1258 (N.L.R.B. 1994)

1258
314 NLRB No. 206
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall correct the judge’s recommended Order and notice to
reflect that the failure to pay Christmas bonuses occurred in Decem-
ber 1992, not December 1993.
2 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(5) by failing to provide the requested in-
formation in a timely manner; by bargaining to impasse over a per-
missive subject; and by unilaterally changing terms and conditions
of employment.
Gloversville Embossing Corp. and Amalgamated
Clothing and Textile Workers Union, AFL–
CIO. Cases 3–CA–17217 and 3–CA–17880
September 23, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On September 15, 1993, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.1
The judge found, inter alia, that the Respondent
complied with the Union’s June 19, 1992 request for
payroll information, albeit not in a timely manner.2 In
his exceptions, the General Counsel contends that the
information the Respondent provided was not only un-
timely, but also incomplete. For the reasons set forth
below, we find merit in the General Counsel’s excep-
tions.
This case arises in the context of the parties’ nego-
tiations for a new collective-bargaining agreement to
succeed the one that was in effect from February 1,
1988, to January 31, 1991. By June 1992, the parties
had not reached agreement on the terms of a new con-
tract.
On June 19, 1992, the Union sent the Respondent a
letter requesting payroll records for bargaining unit
employees. The June 19, 1992 information request
stated, inter alia:
In an effort to fulfill the Union’s duty of fair
representation and responsibilities it is again nec-
essary to obtain certain information from you.
The purpose of this request is that the Union
believes that our contract which expired on Feb-
ruary 1, 1991 has been violated. In addition, be-
cause of your continued demands in our current
negotiations for a 10% across the board wage cut,
the Union believes you have been engaging in un-
fair bargaining. Please provide the Union with the
following information:
1. Beginning February 1, 1988 to the present
copies of all payroll records for all bargaining unit
employees.
On August 17, 1992, the Respondent provided pay-
roll records dating from February 1988, but limited to
unit employees employed at the time of the request.
The judge found that the Respondent legitimately con-
strued the Union’s letter as a request for payroll
records for the existing bargaining unit employees. We
do not agree.
There is no dispute that the employee wage and em-
ployment information desired by the Union is pre-
sumptively relevant for purposes of collective bar-
gaining. See, e.g., Trustees of Masonic Hall, 261
NLRB 436 (1982); Verona Dyestuff, 233 NLRB 109
(1977). What is in dispute is whether the Union’s com-
munication was sufficiently clear to place the Re-
spondent on notice that the Union actually wanted pay-
roll records for all unit employees employed since Feb-
ruary 1, 1988, not just for all unit employees employed
at the time of the request.
It is well established that the adequacy of a union’s
request for information must be judged in light of ‘‘the
entire pattern of facts available to [the employer],’’ not
just the bare words of the request itself. Ohio Power
Co., 216 NLRB 987, 990 fn. 9 (1975), enfd. mem. 531
F.2d 1381 (6th Cir. 1976).
Here, the ‘‘pattern of facts available’’ to the Re-
spondent include the following: the Union’s letter
began by stating that the Union was requesting certain
information in order to fulfill its duty of fair represen-
tation; the letter continued by stating that ‘‘the pur-
pose’’ of the information request was the Union’s be-
lief that the expired contract had been violated; and the
letter concluded by requesting ‘‘all payroll records for
all bargaining unit employees’’ beginning the first day
of the expired contract and continuing through the 3-
year life of that contract to the present day. Given the
clear statement of the Union’s purpose (its belief that
contract violations had occurred) and given the
Union’s explicit request for payroll information begin-
ning on the first day of the contract, it should have
been apparent to the Respondent from the face of the
Union’s letter that the information the Union needed
and wanted must have included the payroll records of
all unit employees employed during the term of the
1988–1991 contract. Instead, the Respondent limited
the information it furnished to the payroll records of
unit employees presently employed. This was not re-
sponsive to the Union’s letter because on the basis of
the information supplied the Union would still be un-
able to accomplish its purpose of uncovering contract
violations insofar as unit employees no longer working
were concerned.
1259GLOVERSVILLE EMBOSSING CORP.
3 As set forth above, we disagree with our dissenting colleague’s
interpretation of the facts concerning this issue. We note that the
Union’s reference to the Respondent’s wage cut demand, discussed
in the dissent, is preceded by the phrase ‘‘[i]n addition.’’ Clearly,
the wage cut was an issue separate and apart from the contract viola-
tion issue; and we do not believe this second concern confused an
otherwise clear request for information.
4 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.’’
For these reasons, we find, contrary to the judge,
that the Union’s request, taken in context, unambig-
uously informed the Respondent of the specific infor-
mation the Union desired.3 Therefore, we conclude
that the Respondent violated Section 8(a)(5) and (1)
not only by failing to provide the requested informa-
tion in a timely manner, as the judge found, but also
by failing to provide the requested information in a
complete manner. Accordingly, we shall order the Re-
spondent to furnish the information requested.
ORDER
The National Labor Relations Board orders that the
Respondent, Gloversville Embossing Corp., Glovers-
ville, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Bargaining to impasse over its demand for a 10-
percent wage cut, where such demand is made for the
purpose of recouping moneys paid to employees pursu-
ant to a previous Board Order and backpay settlement.
(b) Failing to provide wage information to Amal-
gamated Clothing and Textile Workers Union, AFL–
CIO (the Union) in a complete and timely manner.
(c) Unilaterally changing terms and conditions of
employment and failing to pay Christmas bonuses to
its employees in December 1992 without first bar-
gaining in good faith with the Union about such
changes.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time production em-
ployees employed by the Respondent at its Glov-
ersville plant; excluding all office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.
(b) Provide the Union with the payroll information
requested in its June 19, 1992 letter.
(c) Make whole the employees who were not paid
Christmas bonuses in December 1992 in the manner
described above in the remedy section of the judge’s
decision.
(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 backpay
due under the terms of this Order.
(e) Post at its facility in Gloversville, New York,
copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered 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.
MEMBER STEPHENS, dissenting in part.
While I agree with my colleagues that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by its
lack of timeliness in responding to the Union’s June
19, 1992 information request, I do not agree that there
is any additional ground for violation in the Respond-
ent’s failure to construe the request as seeking 1988–
1992 payroll records for employees who were no
longer in the bargaining unit at the time of the request,
as well as such records pertaining to current unit em-
ployees. My colleagues insist that the Respondent
should have gleaned from the Union’s reference to a
possible contract violation that the Union must have
wanted records for all employees working after Feb-
ruary 1, 1988, even those who had departed by the
time of the request. But the Union nowhere explained
what sort of contract violation it was alleging, and the
reference to alleged unfairness in the Respondent’s ex-
isting demand in contract negotiations for a wage cut
appeared to relate solely to current employees. The
Union could easily have been more specific in describ-
ing either the scope of its contract violation claim or
the documents it was seeking. Like the judge, I would
find that the Respondent ‘‘legitimately construed the
request as requiring the delivery of payroll records for
the existing bargaining unit employees.’’ Any mistake
in the matter is certainly not so egregious as to rise to
the level of a refusal to bargain in good faith.
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT bargain to impasse over our demand
for a 10-percent wage cut, where such demand is made
for the purpose of recouping moneys paid to employ-
ees pursuant to a previous Board Order and Backpay
Settlement.
WE WILL NOT fail to provide wage information to
Amalgamated Clothing and Textile Workers Union,
AFL–CIO in a complete and timely manner.
WE WILL NOT unilaterally change terms and condi-
tions of employment and fail to pay Christmas bonuses
to our employees in December 1992 without first bar-
gaining in good faith with the Union about such
changes.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time production em-
ployees employed by the Respondent at its Glov-
ersville plant; excluding all office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.
WE WILL provide the Union with the payroll infor-
mation requested in its June 19, 1992 letter.
WE WILL make whole the employees who were not
paid Christmas bonuses in December 1992, with inter-
est.
GLOVERSVILLE EMBOSSING CORP.
Alfred M. Norick, Esq., for the General Counsel.
Christian Fleissner, for the Respondent.
William Towne, for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Albany, New York, on July 26, 1993. The
charge and amended charge in Case 3–CA–17217 were filed
on July 9, 1992, and December 30, 1992. The charge in Case
3–CA–17880 was filed on May 26, 1993. A consolidated
complaint was issued by the Regional Director for Region 3
on July 2, 1993. In substance, this complaint alleges:
1. That the Employer, since June 19, 1992, has failed to
furnish to the Union, in a timely manner, copies of its pay-
roll records for the period from February 1, 1988, to June
19, 1992.
2. That since on or about March 17, 1992, the Employer
conditioned bargaining for a collective-bargaining agreement
on the Union agreeing to a 10-percent wage cut so that the
Employer could recoup moneys it paid in compliance with
a previous Board Order in 297 NLRB 182.
3. That on or about December 18, 1992, the Respondent
unilaterally eliminated its prior practice of giving employees
a Christmas bonus.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed
by the General Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent a New York corporation, provides leather
embossing services at its facility in Gloversville, New York,
where it annually furnishes services valued in excess of
$50,000 to enterprises located inside the State of New York
who in turn were directly engaged in interstate commerce.
The Company admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union was certified by the Board on July 1, 1987.
The unit is described in the previous case as:
All full-time and regular part-time production employ-
ees and drivers employed by the Respondent at its
Gloversville plant; excluding all office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
Notwithstanding the certified unit description there were
no drivers at any time relevant to the present case.
In a prior case involving the same parties (297 NLRB
182), the Board on October 30, 1989, made the following
findings and conclusions:
1261GLOVERSVILLE EMBOSSING CORP.
1 Grey is deceased.
2 The Company at the April 4 meeting had requested that this pro-
vision be deleted from the old contract.
1. That the Company had failed to execute and abide by
a collective-bargaining agreement that was reached by the
Union and the Employer’s attorney, Robber E. Grey, on Jan-
uary 25, 1988, and thereby violated Section 8(a)(1) and (5)
of the Act.
2. That the Company, in violation of Section 8(a)(1) and
(3), discharged employees who engaged in an economic
strike and refused to reinstate them on their unconditional of-
fers to return to work.
3. That the Company, in violation of Section 8(a)(1) and
(5), refused to furnish the Union with financial information
after claiming that the Union’s demands would bankrupt the
Company. The Board held that the fact that the Company of-
fered to provide this information 3 months after it was re-
quested did not absolve it from the violation.
4. That the Company violated Section 8(a)(1) by telling
employees that its president would not bargain with the
Union and conducting itself in a manner indicating its refusal
to bargain.
5. That the Company violated Section 8(a)(1) and (5) by
offering to bargain directly with employees and bypassing
the Union by making direct offers to employees of wage in-
creases and other improvements in their terms and conditions
of employment in exchange for their cessation of picketing,
abandonment of support for the Union, and return to work.
6. That the Company violated Section 8(a)(1) and (5) by
unilaterally implementing, in the absence of a lawful im-
passe, a wage increase without notice to or bargaining with
the Union.
In addition to ordering the Company to reinstate and make
whole the employees it had unlawfully discharged, the Com-
pany was also required, on request of the Union, to execute
and abide by the agreement negotiated on January 25, 1988,
and make the employees whole for any losses they suffered
as result of its refusal to abide by the agreement.
Subsequent to the Board’s decision in the prior case, the
Regional Office issued a compliance specification and notice
of hearing on October 31, 1990. This specification listed two
categories of backpay. One was for an amount of backpay
arising out of the Company’s failure to abide by the terms
of the collective-bargaining agreement. The other was for an
amount relating to the claimed backpay for the discharged
strikers. In July 1991, the Company made payments of
$4938 covering the first category and in January 1992, the
Company made payments totaling $37,028 covering the sec-
ond category. The total was $41,966.
B. The Negotiations
The contract that the Company was ordered to execute ran
for a term from February 1988 to January 31, 1991. The
Union, by letter dated November 19, 1990, requested the Re-
spondent to meet and bargain for a new contract. As the
Company did not respond, the Union on January 28, 1991,
sent a letter to the Company’s attorney, Robert Gray, asking
for dates to bargain. This letter was re-sent on February 11,
1991, when the Union did not receive any answer.
Notwithstanding the halting start, the parties did get to-
gether on February 26, 1991. Representing the Union were
Union Representative William Towne and employee shop
steward, Larry Lehr. For the Company were Attorney Grey1
and the Company’s president, Christian Fleissner. Towne,
who I find was a credible witness, testified that Fleissner
said that the Company had been losing money for the last
2 years; that he didn’t know what the final numbers were
going to be on the backpay settlement and didn’t know if
that would lead to a closing of the plant or the filing for
bankruptcy. Towne testified that Gray proposed a 1-year roll-
over on the contract with there being a freeze on wages.
Towne states that he was unsure as to who was actually
working so he asked for (1) a seniority roster, (2) a list of
employees, and (3) a copy of their health insurance plan. The
Union did not give its contract proposals at this meeting.
On March 18, 1991, Gray sent a letter to Towne fur-
nishing some information. The letter stated:
Per your request: Bargaining unit salaries for the year
ending 5/31/89 were $139,031; bargaining unit salaries
for the year ending 5/31/90 were $117,963.34.
The next bargaining session took place on April 4, 1991,
and involved the same people. Towne credibility testified
that the Company took the position that they didn’t really
know what the backpay settlement was going to be. He states
that he asked for the payroll information that was requested
at the preceding meeting. According to Towne, Fleissner said
that business was down. He states that when he asked if the
Company was losing money, Fleissner said he wasn’t sure
because he hadn’t gotten the fiscal statements for the year;
that he either made or lost $3000. Towne testified that the
Company said that they still didn’t know what the backpay
was going to be and that it could lead to a closing or bank-
ruptcy. He states that the Union gave the Company its eco-
nomic proposal, which was for a 3-year agreement, with
wage increases in each year of 25, 30, and 35 cents. Towne
states that the Company asked for certain language conces-
sions from the old contract and that it maintained its position
calling for a 1-year freeze.
On April 8, 1991, the Union received a fax from the Com-
pany which provided certain information. This listed 11 em-
ployees and their dates of hire. The communication also fur-
nished the requested health insurance information. (Accord-
ingly, all information requested by the Union as of the Feb-
ruary 26, 1991 meeting had been provided.)
On April 24, 1991, the Union sent another contract pro-
posal to the Company, which was as follows:
1. Four year agreement.
2. Wages
‘‘ - 2/1/91 - 1/31/92 .10 per hour increase
‘‘ - 2/1/92 - 1/31/93 .25 per hour increase
‘‘ - 2/1/93 - 1/31/94 .30 per hour increase
‘‘ - 2/1/94 - 1/31/95 .35 per hour increase
3. Delete - Article XXI - Full Employment.2
4. Holiday Pay - To be calculated 8 times individ-
ual’s hourly rate for all holidays.
5. All other terms and conditions to remain the same
as current agreement.
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Inasmuch as the Company did not respond to the Union’s
April 24 proposal, Towne wrote a letter to Gray on June 12,
1991. This stated:
I forwarded you the enclosed on April 24 of this
year.
I have spoken with you several times over the tele-
phone concerning the company’s response. You in-
formed me during all of these telephone conversations
that you would contact Mr. Fleissner. Yesterday, during
the Colonial arbitrations . . . you informed me that you
had in fact contacted Mr. Fleissner and he had prom-
ised to get back to you.
Be advised that if we do not receive a prompt re-
sponse to our proposal the Union will have to file the
necessary unfair labor practices charges.
A third and short bargaining session was held on July 9,
1991. The Company maintained its position for a wage
freeze. When Towne asked how long a wage freeze was sup-
posed to last, Fleissner said that he didn’t know; as long as
it takes. The Company asserted during this meeting that it
still needed to know what the backpay calculation and settle-
ment was going to be. Also, the Company rejected the
Union’s request to inspect its financial records.
On or about July 30, 1991, the Company partially com-
plied with the backpay specification by making payments to
its employees totaling $4938. As noted above, this amount
was to remedy that portion of the Board’s Order requiring
the Company to execute and abide by the terms of the pre-
vious contract.
Towne testified that in the summer and fall of 1991 he
spoke to Grey over the phone and asked when negotiations
could resume. He states that Grey responded that nothing
could happen until the Company knew what its remaining
backpay liability was going to be.
As noted above, in early January 1992, the Company made
payments totaling $37,028, which covered the remaining
backpay claims. On January 6, 1992, Towne wrote the fol-
lowing letter to Fleissner:
Now that the back pay issue and the unfair labor
practice charges have apparently been settled, the Union
is requesting by receipt of this letter another collective
bargaining session for a new agreement.
Please contact me for mutually acceptable dates.
By letter dated February 5, 1992, the Union repeated its
request to bargain as it had not received any response to its
January letter. Thereafter, on March 6, in the absence of a
reply, the Union filed an unfair labor practice charge alleging
that the Company had refused to meet and bargain. Upon as-
surances by Gray that the Company would bargain, the
Union withdrew this charge on April 1, 1992. However, dur-
ing a telephone call, Gray told Towne that it was Fleissner’s
position that the Company’s economic proposal (the wage
freeze) would have to change now because the Union owed
him $40,000. Towne could not recall when this conversation
took place and Gray was not available to comment one way
or the other.
The parties met on March 17, 1992, at which time
Fleissner announced that Gray no longer represented him.
Towne credibly testified that Fleissner said that the Union
had to pay him back $40,000. (This claim, no doubt for the
amount of money the Company owed and paid to its employ-
ees as part of the backpay settlement, was immediately re-
jected by the Union.) According to Towne, Fleissner said
that his new counterproposal was for a 10-percent across-the-
board wage cut. Towne states that when he asked for what
period of time this was proposed, Fleissner said that he
didn’t know. According to Towne, he (Towne) said that he
didn’t see how we could go much further unless the Union
obtained the books and records. He states that Fleissner, as
he was leaving the room stated, ‘‘Well that’s too bad. You
should have taken my first offer.’’ (Presumably the wage
freeze.)
On March 24, 1992, the Union sent a letter to the Com-
pany stating in pertinent part:
You stated on behalf of your company at the nego-
tiation session on Tuesday, March 17th that you could
not meet the union’s proposal for a new . . . agree-
ment. You stated that for your last fiscal year you be-
lieved that Gloversville Embossing Corp. either showed
a profit of $3000 or a loss of $3000. You further stated
that you expected the current fiscal year’s deficit to be
much higher.
Your proposal, conveyed to the union on Tuesday,
March 17th, was a 10% across the board wage cut.
When asked by the union the time frame for this wage
cut, you stated you had ‘‘no idea.’’ You then stated that
your were not going to put any more money into Glov-
ersville Embossing Corp. and you need to recoup the
losses your company had incurred for the last two
years. In addition, you stated that you needed to recoup
the approximately $40,000 you had paid to union bar-
gaining unit members in settlement of the National
Labor Relations Board complaints.
. . . .
Please be advised that we intend to pursue available
legal remedies including filing charges if:
1. Satisfactory arrangements have not been made
for allowing the union to inspect your financial
books and records within 7 days from the date of
this letter.
2. We do not receive the above requested insur-
ance information within 7 days from the date of this
letter.
3. We do not receive the above requested docu-
mentation requested on Mr. Richardson and Mr.
Lampman within 7 days from the date of this letter.
4. We do not receive a seniority roster update
within 7 days from the date of this letter.
On March 28, 1992, the Company responded as follows:
I am in receipt of your letter dated March 24, 1992
in which you falsely claim that I said some things. I
vehemently object to your misquotes as I never said
some of the claims that you make. I want to be on
record and set the record straight so that you will have
no illusions as to exactly what was said.
(1) You claim that I could not meet the union’s pro-
posal for a new collective bargaining agreement. In
fact, I said I would not meet the union’s proposal for
a new collective bargaining agreement. There is a big
1263GLOVERSVILLE EMBOSSING CORP.
3 In an affidavit, Fleissner made the following statements about the
negotiations and the proposed 10-percent wage cut:
Towne alleges that I have refused to schedule negotiation ses-
sions in a timely fashion and engaging in surface bargaining
with the Union. Whenever the Union requested to meet for bar-
gaining, I agreed to meet with them. I have never refused to
meet with the Union. I have told the Union that I wanted to re-
duce wages by 10% but Towne refused to take my proposal to
the members for a vote. I did not tell Towne that I was either
making money or losing money during our sessions. I did tell
Towne that I intended to recover some of the $40,000 in back
wages that I had to pay due to NLRB Order. I told Towne that
I wanted to recover some of this loss but I never told him that
the company was losing money.
4 This letter goes on to detail a few more complaints about the
Union and also about Larry Lehr.
difference in the words could and would. It is my deci-
sion as to what I want to do regarding salaries both in
the bargaining unit and outside the bargaining unit.
(2) I did propose to reduce wages on the bargaining
unit by 10%. In the past few months I reduced manage-
ment’s gross pay by more than 20% in a drastic cost
cutting program that has been instituted.3
(3) I did not state that Roger Richardson and Randy
Lampman had quit their employment last year. I do not
know the exact time frame. I told you that I would go
over the personnel records with my secretary and get
you a current seniority list as soon as possible . . . .
(4) You charge that we changed the health insurance
plan for bargaining unit employees. I never said this.
How can you put in writing such a lie? I said that the
payment plan was changed from a quarterly payment
period to a monthly payment period . . . .
You will not be allowed to inspect our financial
records. You have no legal grounds to even make this
request. If you remember, you requested this informa-
tion 4 years ago. At that time we agreed and you made
a mockery of the system by never setting up a date to
inspect our books.4
On March 30 and April 6, 1992, the Company sent letters
to the Union providing certain information which had been
requested. This included the name of the medical insurance
carrier along with a brochure and a list of the current em-
ployees who were covered by the plan. Also furnished was
a list of nine employees with their dates of hire and their ad-
dresses.
On May 20, 1992, Towne sent a letter to Fleissner com-
plaining that no dates had been set for resuming the negotia-
tions.
On May 26, 1992, an employee, Randy O’Neill filed a de-
certification petition in Case 3–RD–1088. By so doing, he
sought to have the Union ousted, pursuant to a Board-con-
ducted election, as the collective-bargaining representative of
the Company’s employees. (The petition asserts that there
were at that time eight employees in the unit.)
June 2, 1992, Towne sent another letter to the Company
stating in pertinent part:
I forwarded to you a letter on May 20, 1992 request-
ing the scheduling of another negotiation session. As of
this date, you have not responded. I am requesting that
you immediately contact me to schedule mutually ac-
ceptable dates to resume negotiations.
After reviewing the Gloversville . . . updated senior-
ity roster, which Bob Eidschun brought to my office on
March 31st, the Union needs clarification. Please re-
view your records and forward to me the dates of hire
for Denise Brooks, Timothy Hayward, Connie Frye and
Brenda O’Neil as we do not feel these dates are correct.
In addition the Union needs the dates that these em-
ployees last worked for Gloversville. . . .
. . . .
[T]he Union is continuing its demands to inspect the fi-
nancial books and records of the Gloversville Emboss-
ing Corp. While the Union did request this information
years ago, that was then and this is now.
The final meeting was held on June 17, 1992, on the same
day that a hearing was conducted with respect to the decerti-
fication petition. Towne testified that he said that the Union
was still looking for the books and records and not going
anywhere. He states that Fleissner said that the Union was
never going to get financial information. According to
Towne, in addition to asking for the financial books and
records, he also asked for payroll information, in the form
of employee timecards because he wanted to determine what
various people were being paid per hour. He states that
Fleissner’s response was, ‘‘You’re running out of time.
You’re going to be decertified out and you know it’s amaz-
ing, but I didn’t have anything to do with it, so you’re just
wasting your time because you’re going to be out of here.’’
After a brief exchange between Fleissner and the plant man-
ager, Eidschun, the Company’s representatives left the meet-
ing. There does not appear to have been any discussion of
either side’s bargaining proposals and no arrangements were
made to have any further meetings.
C. The Request for Information
There were numerous requests by the Union for informa-
tion during the negotiations as described above. Some of that
requested information was furnished and some was not.
There is no question but that the Union asked for financial
records and that the Company refused to furnish that infor-
mation. But that is not alleged in this case to be a violation
of the Act.
The complaint only alleges that the Company refused to
furnish a portion of a request for information that was made
by the Union on June 19, 1992. Moreover, the complaint
does not allege that the information was not furnished at all;
rather it alleges that it was not furnished in a timely fashion.
Insofar as relevant. The June 19 letter stated:
In an effort to fulfill the Union’s duty of fair rep-
resentation and responsibilities it is again necessary to
obtain certain information from you.
The purpose of this request is that the Union be-
lieves that our contract which expired on February 1,
1991 has been violated. In addition, because of your
continued demands in our current negotiations for a
10% across the board wage cut, the Union believes you
have been engaging in unfair bargaining. Please provide
the Union with the following information:
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In addition, the letter requested copies of payroll records for
Kevin Houghtaling and the financial books and records of the Com-
pany. As to these items, the General Counsel refused to issue a com-
plaint.
6 See also Salt River Water Users Assn., 204 NLRB 83 (1973),
enfd. 498 F.2d 393 (9th Cir. 1974), where the employer was found
to have violated Sec. 8(a)(5) by insisting to the point of impasse,
that certain employees be excluded from a bargaining unit based on
the mistaken belief that they were supervisors within the meaning of
the Act.
7 But see Carlsen Porsche Audi, 266 NLRB 141 (1983), where a
violation was not found because the evidence did not establish that
the proponent of a permissive subject of bargaining had insisted to
impasse. Cf. Star Mfg. Co. v. NLRB, 536 F.2d 1192 (7th Cir. 1976),
where the court found that the employer did not violate the Act by
insisting on the withdrawal of an unfair labor practice charge before
bargaining commenced.
8 In the March 18, 1991 letter sent by Gray to the Union, he stated
that the Company’s salaries for bargaining unit personnel for the
year ending 5/31/90 was $117,963. If one reduced that figure by 10
percent over a 4-year contract term proposed by the Union, the re-
sulting savings would be $11,796.30 x 4 = $47,184.2. As the evi-
dence shows that the Employer’s payroll was further reduced in
1992, the 10-percent pay cut would come closer to the amount that
the Company paid as a result of the previous backpay settlement.
1. Beginning February 1, 1988 to the present cop-
ies of all payroll records for all bargaining unit em-
ployees.5
The evidence shows that on August 17, 1992, the Com-
pany delivered to the Union’s office copies of payroll records
for the period requested insofar as the employees then em-
ployed. This was about 2 months after the initial request was
made and no reason was given by the Employer as to what
if any circumstances caused the delay.
D. Failure to Pay Christmas Bonuses
Pursuant to the expired contract (schedule A, sec. 3), em-
ployees were entitled to receive a Christmas bonus of 1 per-
cent or 2 percent of their annual earnings, depending on their
tenure of employment. It is not disputed that in December
1990 and December 1991 the Company paid such bonuses
to the bargaining unit employees. It also was conceded by
the Company that it did not pay this bonus to unit employees
in December 1993. At no time did the Company notify the
Union ahead of time that it intended to discontinue giving
the Christmas bonus.
III. ANALYSIS
The Supreme Court in Borg-Warner Corp., 356 U.S. 342
(1958), in defining the bargaining obligations imposed by the
Act, made a distinction between mandatory and nonmanda-
tory subjects of bargaining. In essence, those topics which re-
late to terms and conditions of employment are considered
to be mandatory subjects of bargaining whereas those that do
not are defined as permissive. (A third category also exists
consisting of illegal subjects of bargaining which would in-
volve a situation where a union or a company insists on a
contract provision, such as an illegal 8(e) clause, which
would be illegal.)
With respect to permissive or illegal subjects of bargaining
the proponent of such a subject or contract clause may not
condition an agreement on the other side’s acceptance of the
subject; nor may it bargain to impasse over it. In Borg-War-
ner, the Court, in finding that a company violated the Act
by insisting as a condition of agreement, that a certified
union change the recognition clause of a contract, stated:
The company’s good faith has met the requirements of
the statute as to the subjects of mandatory bargaining.
But that good faith does not license the Employer to
refuse to enter into agreements on the ground that they
do not include some proposal which is not a mandatory
subject of bargaining. We agree with the Board that
such conduct is, in substance, a refusal to bargain about
the subjects that are within the scope of mandatory bar-
gaining. This does not mean that bargaining is to be
confined to the statutory subjects. Each of the two con-
troversial clauses is lawful in itself. Each would be en-
forceable if agreed to by the unions. But it does not fol-
low that because the company may propose these
clauses, it can lawfully insist upon them as a condition
to any agreement.6
Neither party to a collective-bargaining relationship may
condition agreement on the other side’s withdrawal of a pre-
viously filed unfair labor practice charge. John Wanamaker
Philadelphia, 279 NLRB 1034 (1986); Litton Industries v.
NLRB, 533 F.2d 1030 (8th Cir. 1976). Further, a party may
not insist to impasse that the other party abandon a law suit.
NLRB v. Carpenters Local 964 (Contractors & Suppliers
Assn.), 447 F.2d 643 (2d Cir. 1971).7
In the present case, the evidence convinces me that the
Respondent at least as of March 17, 1992, and thereafter,
was seeking by way of the negotiations, to recoup the ap-
proximately $40,000 that it had paid pursuant to its settle-
ment of the backpay claims in the prior case. The evidence
establishes that Fleissner on that date said that the Union had
to pay him back $40,000 and announced that his previous
wage freeze proposal was changed to a demand for a 10-per-
cent across-the-board cut in wages.8
While a demand for a wage cut would normally be con-
strued, in and of itself, as a mandatory subject of bargaining,
its coupling here with the statement that the Union owed the
Company approximately $40,000 indicates that this demand
was inextricably related to the prior unfair labor practice pro-
ceeding. Had the Company, at the start of these negotiations
and/or prior to the issuance of the backpay specification, in-
sisted that the Union withdraw the charge in the previously
litigated case, there would be no doubt that such a demand
should be construed as a permissive subject of bargaining.
And if that was made a condition of reaching an agreement,
the Company would have violated its bargaining obligations
under Section 8(a)(5) of the Act. In the present case, the only
real difference is one of timing. For if the demand for a 10-
percent wage cut is made for the purpose of recouping the
backpay liability that the Company suffered as a result of an
unfair labor practice charge having been successfully proc-
essed, then the demand should be construed as the equivalent
to a demand that the Union withdraw its unfair labor practice
charge.
After March 17, 1992, the final bargaining session was
held on June 17, 1993. This final meeting was held after an
1265GLOVERSVILLE EMBOSSING CORP.
9 In this regard, the Company furnished payroll records for the pe-
riod requested in relation to the persons employed as of the date of
the letter. In this respect, it seems to me that the Company legiti-
mately construed the request as requiring the delivery of payroll
records for the existing bargaining unit employees and complied
with this request on that basis.
10 See Taft Broadcasting Co., 163 NLRB 475 (1967), affd. 395
F.2d 622 (D.C. Cir. 1968); Colorado Ute Elecric Assn., 295 NLRB
607, 609 (1989); and Sacramento Union, 291 NLRB 552 (1988).
employee had filed a decertification petition and it ended
with Fleissner’s statement that the Union was running out of
time and would soon be decertified. In fact, the credible evi-
dence indicates that there was a total absence of any mean-
ingful discussion of any contractual proposals. As no further
meetings were held and neither side requested any more
meetings, it seems obvious that the parties were at an im-
passe as of June 17, 1992.
Since there was no meaningful exchange or discussion of
contract proposals on June 17, 1992, we must look to the
previous bargaining session to determine what it was that
could reasonably be said to have caused the impasse. Apart
from the Company’s assertion that it would not agree to the
Union’s contract proposals and the Union’s demands for cer-
tain information (including financial information), the only
other proposal on the bargaining table was the Company’s
demand that the Union agree to a 10-percent across-the-board
wage cut. While this particular demand was made by the
Company on only one occasion (that being on March 17,
1992), there were no further exchanges of contract proposals
and this demand was not retracted either before, on, or after
June 17, 1992, when the parties reached impasse.
Although this set of circumstances may be somewhat un-
usual, it is my opinion that when impasse was reached on
June 17, 1992, a major reason for the impasse (albeit not the
exclusive reason) was the Company’s insistence on recoup-
ing money, by way of its demand for a 10-percent wage cut,
which it had paid pursuant to a liability incurred under a pre-
vious unfair labor practice charge. As I view this as an in-
sistence to impasse on a permissive subject of bargaining, I
conclude that the Respondent has violated Section 8(a)(1)
and (5) in this respect.
The evidence also shows that the Union, on June 19, 1992,
made a request for certain information which included a re-
quest for copies of all payroll records for all bargaining unit
employees for the period from February 1, 1988, to the
present.
Although the Company had affirmatively responded to
prior information requests (except insofar as financial
records), the Company did not furnish the payroll informa-
tion requested by the Union’s June 12 letter until August 17,
1992, almost 2 months later.9
Wage information relative to bargaining unit employees is
presumptively relevant and therefore an employer must, on
request, furnish such information to a union which represents
its employees. Pfizer, Inc., 268 NLRB 916, 918 (1984);
Gunn & Briggs, Inc., 267 NLRB 944, 947 (1983).
Moreover the duty to furnish relevant information carries
with it the obligation to provide such information in a timely
manner. Civil Service Employees Assn., 311 NLRB 6, 8
(1993).
In my opinion, the failure of the Company to provide the
wage information requested until August 17, 1992, was un-
timely and therefore violative of Section 8(a)(5) of the Act.
Finally, I agree with the General Counsel that the Employ-
er’s refusal to pay the annual Christmas bonus to its employ-
ees constituted a unilateral change in violation of Section
8(a)(5) of the Act.
Under the National Labor Relations Act, an employer is
not free to unilaterally change or modify the terms and con-
ditions of employment contained in an expired collective-bar-
gaining agreement. An employer must maintain such terms
and conditions (except for the remittance of union dues),
until a new agreement is reached which modifies or termi-
nates such obligations; or until after a lawful impasse is
reached whereupon the employer may unilaterally implement
some or all of its last contract offer;10 or until the employer
is legally discharged of its obligation to recognize and bar-
gain with the Union.
In the present case, there did exist a contract between the
Employer and the Union even if it remained unsigned by the
Company. That contract, which expired on January 31, 1991,
contained a provision whereby the Employer agreed to give
Christmas bonuses to its bargaining unit employees in the
amounts of 1 or 2 percent of their annual wages (with some
exclusions), depending on their tenure of employment. As
the evidence establishes that the Company failed to pay the
Christmas bonuses in December 1993, and did so without
notification to the Union, it is concluded that the Respondent
violated the Act in this respect.
CONCLUSIONS OF LAW
1. By bargaining to impasse over its demand for a 10-per-
cent wage cut, such demand being made for the purpose of
recouping from employees, the amounts paid to them pursu-
ant to a Board Order and backpay settlement, the Respondent
conditioned bargaining on a permissive subject of bargaining
and violated Section 8(a)(1) and (5) of the Act.
2. By failing to provide wage information to the Union in
a timely manner, the Respondent has violated Section 8(a)(1)
and (5) of the Act.
3. By unilaterally changing terms and conditions of em-
ployment and failing to pay Christmas bonuses to its em-
ployees in December 1993, the Respondent violated Section
8(a)(1) and (5) of the Act.
4. 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 the Christmas bonuses, I shall recommend that
the Employer make such payments, with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987), in accordance with the terms of the expired collec-
tive-bargaining agreement, to those of its bargaining unit em-
ployees who were employed at that time.
Because the Respondent has demonstrated a proclivity for
violating the Act, demonstrating a general disregard for the
employees’ fundamental rights, I find it necessary to issue a
broad Order requiring the Respondent to cease and desist
from infringing in any manner on rights guaranteed employ-
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees by Section 7 of the Act. Hickmott Foods, 242 NLRB
1357 (1979).
[Recommended Order omitted from publication.]