Microdot, Inc.

National Labor Relations Board - Board Decisions

May 18, 1988

288 N.L.R.B. 1015 (N.L.R.B. 1988)

MICRODOT, INC. 1015
Valley Mould Division, Microdot, Inc. and Office
and Professional Employees International
Union, Local 17, AFL-CIO. Case 8-CA-18991
May 18, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On October 27, 1986, Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions, as modified herein, to modify the
remedy,' and to adopt the recommended Order as
modified.
We agree with the judge's conclusion that the
Respondent violated Section 8(a)(5) by implement-
ing its final offer when no impasse existed. At two
December 1985 bargaining sessions, the Respond-
ent presented, and the Union rejected, a four-
option wage proposal. On January 24, 1986;2 the
Respondent sent a letter to its employees stating
that poor economic conditions required that their
salaries be reduced. Salaries of employees repre-
sented by the Union were to be cut 6 percent on
February 1. The Union protested this action claim-
ing the Respondent had not indicated its intention
to cut wages during bargaining sessions. The wage
cut was not put into effect for bargaining unit em-
ployees on February 1.
At the February 18 bargaining session, Union
Representative Porcaro informed the Respondent
that the Union could not agree to a 6-percent wage
decrease for its members. On that date, the parties
agreed to the Respondent's December 23 and 30,
In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), Interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621. , Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S.C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977)
' We shall order the Respondent to rescind, on request by the Union,
any unilateral changes in its employees' wages, hours, or other terms and
conditions of employment. Our Order should not be construed as requir-
ing the Respondent to cancel any improvement in benefits without a re-
quest from the Union. See Ehas Mallouk Realty Corp., 265 NLRB 1225
fn 3 (1982).
We agree with the judge that, under the circumstances of this case, a
visitatorial clause, requested by the General Counsel, is not warranted
See Cherokee Marine Terminal, 287 NLRB 1080 (1988).
2 All dates are in 1986 unless otherwise indicated
1985 four-option wage proposal with one modifica-
tion. Both parties shared the opinion that their ne-
gotiations had been successfully concluded. How-
ever, they did not share the same interpretation of
the meaning of the February 18 document. The
Respondent was of the view that the Union had, in
fact, agreed to the 6-percent wage cut. The Union,
on the other hand, viewed the agreement as not in-
cluding a 6-percent wage cut. On February 21, the
Respondent withdrew its last offer of February 18.
On Friday, March 7, the Respondent presented
the Union with its "final offer," which specifically
included a 6-percent wage cut effective March 10
(item 2). The offer also included the four-option
wage proposal with modification which had previ-
ously been agreed to on February 18. In addition,
the offer contained notice to the Union that the
Respondent had the right to subcontract work
(item 10) and a proposal providing union-represent-
ed employees with enumerated "non-wage" bene-
fits similar to those which might be provided to
nonrepresented employees (item 11). Porcaro in-
formed the Respondent that items 2, 10, and 11
were new items which differed from those included
in the previously approved February 18 agreement.
The Respondent insisted they were items which
had been "on the table." The Respondent informed
Porcaro this "final offer" would be implemented
on Monday, March 10, if it were not presented to
and approved by the union membership by Sunday,
March 9. The Respondent also stated to Porcaro
that it would not entertain any counterproposals.
The Union informed the Respondent that it could
not present the offer to its membership on time and
that no impasse, in bargaining had been reached.
The Respondent implemented its final offer of
March 7 on Monday, March 10.
The judge found, and we agree, that item 11 of
the Respondent's March 7 offer was a new item.
We also find that although the Respondent's desire
for a 6-percent wage cut had surfaced prior to
March 7, the Respondent knew on March 7 that its
6-percent wage cut proposal (item 2) would likely
come as a surprise to the Union. The Respondent
first proposed the 6-percent wage cut in a letter to
employees. At the February 18 bargaining session,
the Union expressed its opposition to the wage cut.
Later at the same session, the parties thought that
an agreement had been reached. In fact, each party
had its own interpretation of the so-called Febru-
ary 18 agreement: the Respondent believed the par-
ties had agreed to a 6-percent wage cut, 'while the
Union believed that wage rates in the expired con-
tract would continue in effect. Thereafter, the Re-
spondent withdrew its February 18 offer and the
Union believed, mistakenly in retrospect, that the
288 NLRB No. 111
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wage cut was no longer in issue. Most significantly,
the judge specifically found, and we agree, that the
Respondent knew that the Union interpreted the
February 18 proposal as excluding a wage cut.
Thus, at a time the Union believed that the 6-per-
cent wage cut proposal had been dropped, the Re-
spondent knew of the Union's belief. Moreover,
there had been no further bargaining on wages. In-
stead, the Respondent presented the Union with a
final offer including the wage cut and announced
that, the proposal would be implemented on the
next workday. Finally, the Respondent stated that
counterproposals on its final offer would not be
considered.
In sum, the facts here show that the Respondent,
after making a final offer that included two items
requiring further study and discussion, precluded
bargaining by giving the Union only 3 days to con-
sider the offer and by stating that it would not en-
tertain counterproposals. Under these particular
circumstances, we conclude that the parties had
not, after good-faith negotiations, exhausted the
prospects of reaching an agreement and that, there-
fore, no valid impasse existed. 3 Thus, the Respond-
ent was not privileged to implement the terms of
its final offer on March 10 and, accordingly, violat-
ed Section 8(a)(5) by doing so.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Valley Mould Division, Microdot, Inc.,
Hubbard, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(b).
"(b) On the Union's request, revoke any unilater-
al changes made with regard to the wages, hours,
or other terms and conditions of employment of all
employees in the bargaining unit and make them
whole for any losses they may have suffered as a
result of the unilateral changes in wages, hours, or
other terms and conditions of employment, with in-
terest."
2. Substitute the attached notice for that of the
administrative law judge.
3 See Taft Broadcasting Co, 163 NLRB 475, 478 (1967), affd sub nom
Television Artists AFTRA v. NLRB, 395 F.2d 622 (D C. Cir 1968)
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 ordered us to post and abide by this notice.
WE WILL NOT unilaterally implement changes in
the terms and conditions of employment of the em-
ployees in the bargaining unit described below
without first engaging in bargaining with Office
and Professional Employees International Union,
Local 17, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively with
the above-named Union, as the exclusive represent-
ative of all employees in the appropriate unit, with
regard to rates of pay, hours of employment, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement. The appropriate
bargaining unit is:
All office clerical employees, technical em-
ployees, including draftsmen, draftsmen train-
ees, assistant manager of the order department,
programmer analyst, secretary to the Vice
President of Sales, printer, mailman, and office
janitor, and professional employees, including
Industrial Engineer Technicians, Industrial En-
gineer Trainees, general accountants and plant
engineers, located at our facility, but excluding
plant clerical employees, confidential employ-
ees, secretary to the Industrial Relations Man-
ager and secretary to the Controller, plant lab-
oratory employees, nurse, sales and service
representatives, mould design engineer and
guards and supervisors as defined in the Act,
and excluding all other employees.
WE WILL, on the Union's request, revoke any
unilateral changes made with regard to the wages,
hours, and other terms and conditions of employ-
ment of all employees in the bargaining unit and
WE WILL make whole all bargaining unit employ-
ees for any losses they may have suffered as a
result of our unilateral changes in terms and condi-
tions of employment, with interest.
VALLEY MOULD DIVISION, MICRO-
DOT, INC.
MICRODOT, INC. 1017
r
Steven Wilson, Esq., for the General Counsel.
Robert E. Mann, Esq. (Seyforth, Shaw & Fairweather), of
Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
DONALD R. FIOLLEY, Administrative Law Judge. On
an original charge filed on 6 March 1986, the Regional
Director for Region 8 of the National Labor Relations
Board issued a complaint on 18 April 1986 which alleged
that Valley Mould Division, Microdot, Inc. (the Re-
spondent) engaged in conduct that violates Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act). By timely answer, Respondent denied it had com-
mitted the unfair labor practices alleged in the complaint.
The case was heard in Youngstown, Ohio, on 13
August 1986. All parties appeared and were afforded full
opportunity to participate. On the entire record, includ-
ing posthearing briefs filed by the parties, and from my
observation of the demeanor of the witnesses who ap-
peared to give testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, maintains a place
of business in Hubbard, Ohio, where it is engaged in the
manufacture of ingot moulds arid stools. It annually sells
and ships from its Hubbard operation products valued in
excess of $50,000 directly to points outside the State of
Ohio. It is admitted, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that Office and Professional
Employees International Union, Local 17, AFL—CIO
(the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
in. THE ALLEGED UNFAIR LABOR PRACTICES
Since 8 August 1974 the Union has been the exclusive
bargaining agent for certain of Respondent's employees
employed at its general office and its melt facility office,
which are both located in Hubbard, Ohio. 1 The most
recent collective-bargaining agreement covering such
employees, which was in effect from 1 December 1982
through 30 November 1985, was placed in the record as
1 The bargaining unit, which is admitted to constitute an appropnate
unit within the meaning of Sec 9(b) of the Act, is
All office clerical employees, technical employees, including drafts-
men, draftsmen trainees, assistant manager of the order department,
programmer analyst, secretary to the Vice President of Sales, print-
er, mailman, and office Janitor, and professional employees, including
Industrial Engineer Technicians, Industnal Engineer Trainees, gener-
al accountants and plant engineers, located at Respondent's facility,
but excluding plant clerical employees, confidential employees, sec-
retary to the Industrial Relations Manager and secretary to the Con-
troller, plant laboratory employees, nurse, sales and service repre-
sentatives, mould design engineer and guards and supervisors as de-
fined in the Act, and excluding all other employees.
General Counsel's Exhibit 2. Commencing 20 November
1985 the parties sought to negotiate a new agreement. As
negotiations progressed, the above-described 1982 con-
tract was extended first through 31 December 1985, and
then through 31 January 1986.
Judith Ours, one of two union stewards who serviced
unit employees, testified without contradiction that, at
some undesignated time during the fall of 1985, Robert
Welton, Respondent's principal spokesman during bar-
gaining, asked her what it would take for their unit to
vote for decertification. When she responded the major
issue in people's minds was job security, Welton asked if
he could write something up that would tend to alleviate
that problem. Although Ours told him they would look
at anything he wrote up, Welton did not thereafter
pursue the matter.
Bargaining sessions were held on 20 November, 5, 23,
and 30 December 1985, 18 February, and 7 March
during the calendar year 1986. The Union's chief negoti-
ator, George Porcaro Jr., an International Union o icial,
described what occurred at each session when he ap-
peared as a witness. Although Respondent chose not to
cause a witness to describe what occurred during each
session, it, without objection, placed notes taken by
Daniel Lawrence, its manager of industrial relations, at
all sessions except the 18 February session in the record
as Respondent's Exhibit 1. Set forth below is a summary
of occurrences during bargaining which is gleaned from
review of Porcaro's testimony, Lawrence's notes, and
the various proposals placed in the record by the Gener-
al Counsel.
A. Introduction
The circumstances in which negotiations were accom-
plished by the Respondent and the Union involved in
this case were somewhat unusual. During the course of
bargaining, Respondent, which then operated plants in
Hubbard and Chicago, was seriously considering the pos-
sibility that it would have to close one of its plants be-
cause it had been unable to sell all the products both
plants were capable of producing. Although negotiating
with the instant Union, it was also engaged in negotia-
tions with the Steelworkers, who represented the pro-
duction and maintenance employees in its plants. The
record clearly reveals Respondent was seeking to cause
both the instant Union and the Steelworkers to agree to
significant wage concessions.
B. The 20 November Session
At the commencement of the 20 November session,
Respondent presented the union negotiating team with
certain information concerning its business operations to
make them aware of the fact that the Company was op-
erating at a loss and anticipated further losses during
1986. The parties then exchanged proposals. The Union's
proposals were broadly stated and no exact figures were
provided. They indicated it sought a general pay in-
crease, improvement in pension and other benefits accru-
ing to retired employees, and improvements in health
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and welfare programs. 2 Respondent's proposals, 13 in
number, were specific. It proposed a 3-year contract
term, a 15-percent wage reduction, elimination of an
income protection plan, 3 elimination of dental coverage,
alteration of the basic insurance plan, a 40-hour work-
week,4 elimination of time and one-half for holiday
work, elimination of Sunday premium, elimination of
shift differential, incorporation of ERISA and TEFRA
requirements in pension plan with no increase in plan ex-
pense, elimination of personal holiday, addition of word
"decrease" to holiday article, 5 and removal of specified
letter agreements attached to the 1982-1985 contract.
The parties agreed during the 20 November session
that Welton had authority to bind Respondent; that the
Union was required to submit proposals to its member-
ship for ratification; and that their next bargaining ses-
sion would be held on 5 December.
C. The 5 December Session
Prior to the 5 December session, the parties executed a
document that extended the expiring contract through
December 1985. The document provided any agreement
on wages would be retroactive to 1 December 1985.
The parties sought on 5 December to define the real
issues which were to be considered during bargaining.
The Union counterproposed a 2-year contract term, with
a wage reopener at the beginning of the second year; the
parties agreed to reduce income protection benefits from
52 weeks to 26 weeks, the same program then in effect
for nonrepresented salaried employees; Respondent
dropped its elimination of dental coverage proposal; the
Union agreed to accept the same basic insurance cover-
age then in effect for nonrepresented salaried employees,
and agreed to accept increases or decreases those em-
ployees would experience during the contract term
(called "me too" agreement); Respondent dropped its 40-
hour workweek proposal, its Sunday premium proposal,
its elimination of shift differential proposal, and its per-
sonal holiday proposal; the Union agreed to "me too"
treatment of holidays and insurance; and the parties
agreed to make appropriate changes in the letter agree-
ments which would be attached to any agreement
reached.
Although the Union had originally counterproposed a
15-percent wage increase, Porcaro indicated during the 5
December session that he was seeking parity with nonre-
presented salaried employees. At some point during the
Union's 1982-1985 contract term, Respondent had elimi-
nated a bonus plan which covered nonrepresented sala-
ried employees. The plan, according to Respondent wit-
ness Welton, was one in which employees received bo-
nuses which amounted to from 15 to 40 percent of their
salaries. Respondent "bought out" the plan by canceling
it and giving the employees an 8-percent increase in their
,
2 See G.C. Exh 3
3 The income protection plan was, in effect, a sick leave plan which
provided for 52 weeks of benefits under the terms of the 1982-1985 con-
tract
4 The existing workweek was 37-1/2 hours
5 The expiring contract provided for increasing the holidays and insur-
ance of unit employees if those benefits were increased for certain other
employees.
base rate. Porcaro indicated the 8-percent increase was
"new money," and he signified his feeling that bargain-
ing unit employees were entitled to an 8-percent increase
in their base rate. Respondent rejected Porcaro's argu-
ment indicating the nonrepresented salaried employees
had, in fact, suffered wage reductions ranging from 7 to
42 percent. At some point, Welton suggested "me too"
agreement on pensions. Porcaro rejected the proposal
observing the pension plans were not the same. Although
the differences in the plans were not explained, Welton
observed the benefits were the same.
During the 5 December session, the Union claimed
that reduction in forces and consolidation of duties had
caused the members of its bargaining unit to be misclassi-
fied. The parties discussed ways the problem could be
resolved through the grievance machinery of the con-
tract. They reached no final agreement.
D. The 23 December Session
At the commencement of the 23 December session,
Respondent presented the Union with the following
wage proposal:
1. If Company installs a ment program for non-
union salary personnel, the same merit pool % will
be applicable to union personnel as a general in-
crease on the first December 1, that falls within the
merit program period. Union personnel will be in-
cluded in any general wage increase (decrease)
given to non-union salary personnel.
2. If Company installs a merit program or general
increase (decrease) for non-union personnel, a simi-
lar stand alone program will be applicable to union
personnel.
3. If Company installs a merit program or general
increase (decrease) for non-union personnel, a simi-
lar stand alone program will be applicable to union
personnel. The merit program will be administered
by union personnel (merit increase must be spread
evenly through the merit period).
4. Union employees will be included in any merit
program or general increases (decreases) applicable
to non-union salary personnel.
The Union rejected Respondent's optional wage propos-
als with Porcaro commenting they would not tie-in to an
automatic wage decrease. The Union counterproposed a
3-year contract term with wage reopeners the second
and third years. In the alternative, it proposed a lump
sum signing bonus of $1500 per employee (equating to
approximately 6 percent), and a 5-percent wage increase
on 1 January 1986. Respondent then proposed a 3-year
contract term with no reopeners, and "me too" on wages
on a 1 December 1986 and 1 December 1987 basis.
Welton observed Respondent was projecting a $23 mil-
lion loss in 1985. The only agreement reached during the
session was agreement on the method for settling inequi-
ty adjustment grievances.
MICRODOT, INC. 1019
E. The 30 December Session
The parties made no progress during the 30 December
bargaining session. Welton sought to cause the Union to
agree to one of the four options presented by Respond-
ent's wage proposal by observing Respondent was losing
money and it was asking the Steelworkers to accept an
8-percent wage decrease in bargaining with that Union.
Porcaro reiterated his argument that the nonrepresented
salaried employees had received an 8-percent increase al-
though unit employees had received nothing. At the con-
clusion of the session, Respondent presented the Union
with the Company's final offer. It provides (G.C. Exh.
7):
1. 3 year contract to 12/1/88.
2. Union choice of one of four wage changes
thru out contract.
3. IPP reduced 52 weeks to 26 weeks (Me too).
4. Insurance Plan—Me too.
20% employee [sic] co-insurance added to basic
plan up to $1,500 employee out of pocket per cal-
endar year (includes deductible).
5. Pension as presented ERISA & TEFRA re-
flected.
6. Holidays—Decrease added to language on
page 59.
7. Job Upgrade Review--
A. Employee has 30 days after signing of
memo of agreement to request and submit areas
of job change.
B. Any upgrades to be retroactive to 12/1/85
but not to exceed 90 days.
C. Union will screen requests 1st.
8. Letters will be updated.
Porcaro indicated on receipt of the Company's last offer
that it would be submitted to the membership with a rec-
ommendation that they reject it. Welton asked when it
would be presented to the membership indicating the
Company would like to present the membership with all
the facts before they voted. Porcaro voiced doubt that
the Company could legally discuss the offer with em-
ployees.
Ours testified that on 6 January 1986, the Monday fol-
lowing the 30 December session, unit members were told
there would be a meeting during their lunch hour to take
a vote on the Company's last offer. She indicated the
meeting did not occur, however, as Welton approached
her that morning and they agreed to extend the old con-
tract through the month of January 1986.
F. Late December and January Events
By an agreement dated 31 December 1985, the parties
extended the 1982-1985 agreement through 31 January
1986, providing therein that any wage agreement would
be retroactive to 1 December 1985.
The record fails to reveal that either party requested
that a negotiating session be held during January 1986.
By letter dated 24 January 1986, Respondent's presi-
dent informed Respondent's salaried employees that the
Company intended to take specific action to reduce its
expenses. The body of the letter states:
As you know, business conditions have not im-
proved. As a result I must announce that effective
February 1, 1986, the following will occur:
1. My salary will be reduced by 10.0%.
2. Staff salaries will be reduced by 9.0%.
3. Exempt salaries will be reduced by 7.4%.
4. Non-exempt salaries will be reduced by 6.0%.
5. All membership and subscriptions will be re-
viewed prior to March 1, 1986, with the objective
of maximum elimination.
Effective March 1, 1986, company contributions
to the Salaried Savings Plan will be suspended for
an indefinite period of time. You will receive fur-
ther information on this matter in a few days.
I trust you will understand the necessity for these
changes and share my continued optimism for the
future.
Porcaro testified the above-quoted letter caused him to
telephone Welton on two occasions shortly after copies
of the document were distributed. Although he failed to
fully describe the conversations, he indicated he ex-
pressed displeasure with Welton by claiming Respondent
had obviously planned to reduce salaries for some time,
but had failed to indicate such an intention during their
bargaining sessions. Porcaro testified the bargaining unit
employees fell in the class of employees who were
scheduled to have their salaries reduced by 6 percent. As
indicated, infra, those reductions were not visited upon
unit employees until 10 March 1986.
G. The 18 February Session
On 7 February 1986 the parties were scheduled to
resume negotiations with the assistance of Federal Medi-
ator Dave Thorley. Although they appeared at the ap-
pointed place and time, Thorley did not. Consequently, a
meeting date of 18 February was agreed on.
At the commencement of the 18 February session Por-
caro announced that there was no way the Union was
going to agree to a 6-percent wage decrease. After he
then claimed the Company was using the unit employees
as pawns in their concession negotiations with the Steel-
workers, Thorley separated the groups and sought to
mediate their dispute. Eventually, the parties agreed on
language that should be added to the Respondent's wage
offer that had been on the table since 23 December and
had been included in its 30 December final offer. The
document containing the language was as follows:
2/18/86
Effective this date the Company modifies its offer
of 12/30/85 as follows:
Add to the list of 4 options available for selection
by the Union a new paragraph which will read—
"All Union Personnel will be involved in any
other general compensation programs the Company
makes available to non-exempt personnel."
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Submitted through Mediator Dave Thorley for
confirmation by the Company as to this modifica-
tion.
After Porcaro, Welton, and Mediator Thorley initialed
the document, which had been prepared by Porcaro, the
meeting ended. It is undisputed that both parties were of
the view at that time their agreement concluded negotia-
tions.
H. Events that Followed 18 February Session
Welton testified he interpreted the document signed on
18 February to mean that the Union had agreed to take a
6-percent wage reduction. He spoke with Union Steward
Ours on the morning of 19 February and inquired when
the Union intended to submit the final offer as amended
to the unit employees for ratification. Ours informed him
there would be no ratification meeting. When he asked
why, she told him he would have to talk to Porcaro. Al-
though Welton sought several times to contact Porcaro
by phone subsequent to his conversation with Ours, the
latter was out of town and could not be reached.
During his appearance as a witness, Porcaro testified
he construed the 18 February document to constitute an
agreement that only general compensation changes vis-
ited upon unrepresented nonexempt employees subse-
quent to 18 February 1986, would be simultaneously vis-
ited upon employees in the bargaining unit. He testified
the 18 February date was controlling because when the
document was signed no contract extension was in effect
and, consequently, the parties had not agreed at that time
that any agreement on wages would be retroactive to
any earlier time. Porcaro further indicated that he con-
strued "general compensation programs" to mean wage
programs rather than benefit programs.
For some unexplained reason, the Union did not
submit the Company's final offer as amended by the 18
February document to unit employees for ratification im-
mediately after 18 February.
On 21 February, Respondent, by a letter delivered to
Ours, withdrew its last offer and requested a meeting in
the Company's main conference room at 7 p.m. on
Monday, 24 February. Porcaro was unavailable and no
such meeting was held.
On 6 March 1986 the Union filed the charge in the in-
stant case alleging, inter alia, that Respondent had violat-
ed Section 8(a)(1) and (5) of the Act by engaging, "in
. . . bad faith bargaining through regressive bargaining
tactics."
I. The 7 March Session
On 7 March the parties met once more with Mediator
Thorley. At the commencement of the meeting, the
Union was presented with the following document (G.C.
Exh. 12):
Company Final Offer 3-7-86
1. 3 Year Contract to 12-1-88 (No Reopeners).
2. 6% wage reduction effective 3-10-86.
N 3. Union choice of one of the following four
wage changes throughout the contract:
a. If Company installs a merit program for
non-union salary personnel, the same merit pool
% will be applicable to union personnel as a gen-
eral increase on the first December 1, that falls
within the merit program period. Union person-
nel will be included in any general wage increase
(decrease) given to non-union salary personnel.
b. If Company installs a merit program or gen-
eral increase (decrease) for non-union personnel,
a similar stand alone program will be applicable
to union personnel. .
c. If Company installs a merit program or gen-
eral increase (decrease) for non-union personnel,
a similar stand alone program will be applicable
to union personnel. The merit program will be
administered by union personnel (merit increases
must be spread evenly throughout the merit pro-
gram).
d. Union employees will be included in any
merit program or general increases (decreases)
applicable to non-union salary personnel.
and all Union personnel will be involved in any
other general compensation programs the Company
makes applicable to non-exempt salary personnel.
4. IPP reduced from 52 weeks to 26 weeks (Me
Too). 3-10-86
5. Insurance Plan changes—(Me Too) effective
3-10-86:
20% Employee Co-insurance added to Basic
Plan up to $1,500 employee out-of-pocket per
calendar year (includes deductibles).
6. Pension Plan changes as presented to conform
to ERISA and TEFRA—(Me Too).
7. Holidays—the word "decrease" added to lan-
guage on page 59. (Me Too).
8. Job upgrade review:
a. Employee has 30 days after signing of
Memo- of Agreement to request and submit areas
of job change.
b. Any upgrade to be retroactive to 12-1-85,
but not to exceed 90 days.
c. Union will screen requests first.
9. Letters and memo's [sic] will be updated,
changed or deleted, specifically letters on pages 53,
55, and dated 11-18-83 are no longer applicable and
will be deleted, others will be modified appropriate-
ly.
10. This confirms the Union has been advised the
Company is trying to reduce costs by eliminating
employees including having work performed by
outside suppliers.
11. If the Company shall, during the term of the
(Collective Bargaining Agreement), modify, termi-
nate, or substitute a new plan for any currently ex-
isting plan of non-wage benefits generally covering
non-bargaining non-exempt salaried employes [sic]
of the Company, such action shall apply as well to
the corresponding plan covering members of the
bargaining unit. For purposes of this Agreement,
MICRODOT, INC, 1021
"plan of non-wage benefits" means the Retirement
Plan, insurance plans, severance pay plan, salaried
savings plan, salary continuation for sickness or
injury and other non-wage benefits.
Simultaneously, the Union was presented with a memo
signed by Welton that stated the Company's final offer
of 7 March 1986 would be implemented 10 March 1986
if it was not presented and approved by the membership
by Sunday, 9 March 1986.
Porcaro testified he indicated during the 7 March ses-
sion that items 2, 10, and 11 were different from the pro-
vision initialed off and agreed to on 18 February. He tes-
tified, without contradiction, that he asked Welton if the
Company would entertain counterproposals and the
reply was it would not. Welton testified his response to
Porcaro's claim that items 2, 10, and 11 were new, was
that the proposals were those which had been on the
table. With respect to item 10, he indicated the old con-
tract permitted subcontracting and, after making that ob-
servation, he informed Porcaro item 10 was included to
preclude the Union from subsequently claiming it had no
notice the Company was considering subcontracting. Al-
though he admitted he was aware on 7 March that the
Company and the Union placed different interpretations
on the 18 February document, he testified that in the
Company's view item 2, the 6-percent wage decrease
proposal, had been agreed to on 18 February. Finally, he
testified item 11 of the 7 March final offer simply spelled
out the agreement the parties had reached when they
signed the 18 February document.
On 7 March 1986 the Union sent Respondent a tele-
gram that stated:
BE ADVISED THAT THE UNION CANNOT REASONABLY
SCHEDULE A MEMBERSHIP RATIFICATION MEETING
BEFORE MARCH 1, 1986. LIKEWISE, THE UNION MUST
DEFER CONSIDERATION OF YOUR MARCH 7, 1986
CONTRACT OFFER UNTIL AN APPROPRIATE DETERMI-
NATION IS MADE ON THE PENDING RELATED ULP
CHARGE.6
On the same day, Porcaro sent Respondent a letter set-
ting forth the Union's position. The body of the letter
states:
As we advised you this date, the Union has filed
ULP charges with the National Labor Relations
Board concerning regressive bargaining tactics used
by the Company in our recent series of meetings.
The parties initialed a final company offer on Feb-
ruary 18, 986, and then on February 21, 1986, a
notice was sent that the Employer intended to make
a new offer and withdraw the 2/18/86 offer.
This date, at a meeting you requested through
FMCS, we received a new offer with reduced pro-
visions over the previous offer. Specifically, items 2,
10, and 11 constitute either new or reduced propos-
als. Likewise you notified us of your intent to im-
6 Porcaro noted during his testimony that the confirmation copy of the
telegram erroneously referred to a 1 March, rather than a 10 March rati-
fication meeting.
plement this offer, which as the Union notified you
constituted bad faith 8argaining. Not only has im-
passe not been reached, but the Union is under no
obligation to vote on proposals that in effect consti-
tute bad faith bargaining.
Be advised that the earliest possible date the
Union can reasonably hold a membership ratifica-
tion meeting is Monday, March 10, 1986. At such
meeting, the only offer we intend to consider is the
previous offer of February 18, 1986, as initialed be-
tween the parties and Federal Mediator. No vote on
this previous offer was taken pending your Febru-
ary 21, 1986, letter and the fact that such offer,
unlike the current March 7, 1986, offer, did not con-
tain any required date upon which the Union had to
act before it was withdrawn and no longer in effect.
It is undisputed that Respondent implemented the final
offer of 7 March on 10 March 1986. On the same day,
the bargaining unit voted to ratify the Company's 30 De-
cember 1985 offer as amended on 18 February 1986. Re-
spondent was not notified of the results of the 10 March
ratification meeting until the results were disclosed
during hearing held in the instant case.
Analysis and Conclusions
The meaning of good-faith bargaining was defined by
the court in NLRB v. Reed & Prince Mfg. Co., 7 as fol-
lows:
The respondent . . . was legally bound to confer
and negotiate sincerely with the representatives of
its employees. It was required to do so with an
open mind and a sincere desire to reach agreement
in a spirit of amity and cooperation. The cases set-
ting forth Milts obligation are many, and it is well
settled that a mere formal pretense at collective bar-
gaining with a completely closed mind and without
this spirit of cooperation and good faith is not a ful-
fillment of this duty.
Thus, "The Act not only requires that the parties go
through the motions of negotiation, but it also demands
that they negotiate in good faith," 8 and the right not to
agree or concede, or to refuse a particular proposal or
make a concession, may not be utilized as a cloak "to
conceal a purposeful strategy to make bargaining futile
or fail." Further, the mere fact that a party bargains on
certain issues in an attempt to reach overall agreement,
while at the same time frustrating agreement on one or
more substantial issues, does not suffice to fulfill the re-
quirements of good-faith bargaining.18
Although an adamant insistence on a bargaining posi-
tion is not of itself a refusal to bargain in good faith,
Neon Sign Corp. v. NLRB, 602 F.2d 1203 (5th Cir. 1979),
other conduct has been held to be indicative of a lack of
7 118 F.2d 874, 885 (1st Cir. 1941).
8 Steelworkers (Roanoke Iron Works) v. NLRB, 390 F 2d 846, 852 (D.C.
Cir. 1967)
9 NLRB v. Herman Sausage Go, 275 F 2d 229, 232 (5th Cir. 1960).
10 King Radio Corp., 172 NLRB 1051, 1068 (1968), enfd. 416 F.2d 569
(10th Cir. 1969), cert denied 397 U.S. 1007 (1970).
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
good faith. Such conduct includes delaying tactics,' 1 un-
reasonable bargaining demands," unilateral changes in
mandatory subjects of bargaining," efforts to bypass the
union," failure to designate an agent with sufficient bar-
gaining authority," withdrawal of already agreed-on
provisions," and arbitrary scheduling of meetings."
Here, the General Counsel contends Respondent's con-
duct which reveals it had no real intention of reaching
agreement with the Union consists of (1) exploring the
possibility of decertification proceedings prior to the
commencement of bargaining; (2) reneging on the 30 De-
cember offer on 21 February; (3) presenting a less advan-
tageous take-it-or-leave-it final offer on 7 March 1986;
and, (4) implementing the 7 March offer on 10 March
1986, although the parties were not then at impasse.
Respondent contends it did nothing unlawful on 7 or
10 March because it simply reoffered on 7 March what it
had offered through its 30 December offer as amended
by the language agreed on by the parties on 18 Febru-
ary. Although it admits that through the matter set forth
in item 10 of its 7 March offer it injected something in
the negotiations that had not previously been raised, it
claims the subcontracting notice set forth at item 10
means nothing because provisions of the expired con-
tract, which were to remain unchanged, gave it the right
to unilaterally subcontract unit work.
The General Counsel's contention that Respondent
reneged on proposals on which there had been tentative
agreement is bottomed on a claim that the parties
reached tentative agreement on wages when they initiat-
ed the 18 February document. The facts recited, supra,
cause me to conclude the parties never reached even ten-
tative agreement on wages because there was no meeting
of the minds on the interpretation to be given to the lan-
guage contained in the 18 February document. Noting
the Union had made no effort to cause the bargaining
unit employees to ratify Respondent's 30 December offer
before it was withdrawn, and the fact that the offer, as
amended by the 18 February document, was ambiguous,
I am unwilling to find Respondent acted unlawfully
when it withdrew the offer on 21 February.
As I view the record, the main issue in here is whether
Respondent violated Section 8(a)(5) by making a take-it-
or-leave-it offer on 7 March and implementing its final
offer before an impasse in bargaining had been reached.
When resolving impasse issues, the Board has consistent-
ly followed the guidelines set forth in Taft Broadcasting
Co., 163 NLRB 475 (1967), petition for review denied
395 F.2d 622 (D.C. Cir. 1968). There the Board stated
(at 478):
" NLRB v. Wonder State Mfg. Co, 344 F.2d 210 (8th Cir. 1965), Crane
Co., 244 NLRB 103 (1979).
12 NLRB v. Holmes Tuttle Broadway Ford, 465 F 2d 717 (9th Cir
1972).
13 NLRB v Fitzgerald Mills Corp. 133 NLRB 877 (1961), enfd. 313
F.2d 260 (2d Or. 1963), cert. denied 375 U.S. 834 (1963).
14 Cal-Pacific Poultry, 163 NLRB 716 (1967).
15 Billups Western Petroleum Co, 169 NLRB 964 (1968), enfd. 416 F 2d
1333 (5th Or 1969).
16 Valley Oil Co., 210 NLRB 370 (1974).
17 Moore Drop Forging Co., 144 NLRB 165 (1963).
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of the
negotiations are all relevant factors to be considered
whether an impasse in bargaining existed.
The record in this case clearly reveals Respondent
made a take-it-or-leave-it final offer on 7 March and in-
formed the Union the offer would be implemented in 3
days whether it accepted or rejected it. Thereafter, on 10
March 1986, Respondent implemented its final offer. The
immediate effect on bargaining unit employees was that
they sustained a 6-percent wage cut. The long range
effect was that bargaining unit employees could expect
after 10 March 1986 to be subject to any nonwage bene-
fits changes unrepresented nonexempt employees experi-
enced.
The General Counsel contends Respondent violated
Section 8(a)(5) by engaging in the above-described con-
duct. In his brief, he claims that items 2, 10, and 11 ot
the final offer injected new issues, the time afforded the
Union for approval or rejection was too brief, and that
the final offer was implemented before an impasse in bar-
gaining occurred.
Respondent defends by claiming the proposals made
on 7 March were those which had been on the bargain-
ing table since 18 February, and, although it only afford-
ed the Union 3 days to accept its proposals before they
were to be implemented, the time afforded was sufficient
because the Union was attempting to stall the negotia-
tions until the production and, maintenance employees
voted on concessions under consideration in the Steel-
workers negotiations. It contends the parties were at im-
passe as the Union's past actions revealed further bar-
gaining would be futile.
Although the Board has held an employer may be jus-
tified in making unilateral changes "[w]hen a union, in
response to an employer's diligent and earnest efforts to
engage in bargaining, insists on continually avoiding or
delaying bargaining,"" such cases are not applicable
here because the record fails to reveal the instant Re-
spondent was diligently or earnestly seeking to reach
agreement with the Union on 7 March 1986.
For the reasons set forth below, I conclude that by
making its take-it-or-leave-it offer on 7 March and there-
after implementing that offer on 10 March 1986, Re-
spondent violated Section 8(a)(5) of the Act.
Although the record warrants an inference that the
Union was aware before 7 March that Respondent
wanted unit employees to take a 6-percent wage cut, the
record fails to reveal that Respondent had, prior to 7
March, proposed that the Union agree to "me too" treat-
ment with respect to all nonwage benefits. During nego-
tiations up to that point, Respondent had proposed, and
the Union had agreed, to "me too" treatment with re-
spect to income protection plan, insurance, holidays, and
18 See M & M Contractors, 262 NLRB 1472 (1982), and AAA Motor
Lines, 215 NLRB 793 (1974)
MICRODOT, INC. 1023
vacations. Welton had suggested "me too" treatment
with respect to pensions, but the Union had refused, with
Porcaro stating the plans were different. Although the
1982-1985 contract provided for additional nonwage
benefits for unit employees (bereavement and jury duty
pay for example), those benefits had not been discussed
by the parties.
It was in the described context that Respondent pro-
posed through item 11 of its 7 March final offer that unit
employees "track" unrepresented nonexempt employees
on all nonwage benefits. Respondent's counsel claims
that item 11 of the 7 March proposal did not inject a
new issue in bargaining because the term "general com-
pensation" which appears in the 18 February document
is sufficiently broad to include nonwage benefits. Con-
tinuing, he observes that Porcaro composed the language
set forth in the 18 February document and any ambigu-
ities should be resolved in Respondent's favor. The diffi-
culty with his position is simply the fact that employers
and unions utilize the bargaining process to arrive at
agreement on the meaning of contract language and here
Respondent seeks to deprive the Union of that right with
respect to the language used in the 18 February docu-
ment. Significantly, the record reveals Welton was fully
aware on 7 March that he and Porcaro interpreted the
18 February document differently.
In the circumstances described, I find that, by placing
item 11 in its 7 March final offer, Respondent injected a
new issue in bargaining. By indicating at the time the
final offer was made that it was not negotiable, it violat-
ed Section 8(a)(5) as alleged. Moreover, by implementing
the final offer while refusing to negotiate with respect to
nonwage benefits in particular, it implemented at a time
when no impasse existed. Such conduct violates Section
8(0(5) of the Act, and I so find.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All office clerical employees, technical employees,
including draftsmen, draftsmen trainees, assistant
manager of the order department, programmer ana-
lyst, secretary to the Vice President of Sales, print-
er, mailman, and office janitor, and professional em-
ployees, including Industrial Engineer Technicians,
Industrial Engineer Trainees, general accountants
and plant engineers, located at Respondent's facili-
ty, but excluding plant clerical employees, confiden-
tial employees, secretary to the Industrial Relations
Manager and secretary to the Controller, plant labo-
ratory employees, nurse, sales and service represent-
atives, mould design engineer and guards and super-
visors as defined in the Act, and excluding all other
employees.
4. At all times material, the Union has been the exclu-
sive representative of all employees within the aforesaid
appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union as the exclu-
sive representative of all employees in the appropriate
unit by unilaterally implementing changes in the terms
and conditions of employment on 10 March 1986, at
which time no impasse in bargaining existed, the Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be required to
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act, including, on request, to bargain with the Union as
the exclusive bargaining representative of unit employ-
ees.
Having found that Respondent unilaterally reduced the
wages of bargaining unit employees without bargaining
with the Union, I shall order it to make them whole for
any loss of earnings they suffered as a result of its unlaw-
ful conduct, with interest to be computed thereon in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977).19
Finally, although the General Counsel requests that a
visitatorial clause be included in any order issued in this
case, I note the Board has declined to include such
clauses in cases that do not appear to pose complicated
compliance problems. See, for example, Cherokee Heating
Co., 278 NLRB 399 (1986). In my view, the Order in this
case will pose no significant compliance problems, and
provisions set forth in the Order that require Respondent
to preserve and make available to the Board described
records necessary to analyze the amount of backpay due
the unit employees will suffice. Accordingly, the request
for a visitatorial clause is denied.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Valley Mould Divison, Microdot,
Inc., Hubbard, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unilaterally implementing changes in the terms and
conditions of employees in the bargaining unit described
above without first engaging in bargaining with Office
and Professional Employees International Union, Local
17, AFL-CIO.
9 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
20 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, re-
straining, 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 collectively with the above-
named Union as the exclusive representative of all em-
ployees in the appropriate unit described above, with
regard to rates of pay, hours of employment, and other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Make whole all bargaining unit employees for any
losses they may have suffered as a result of our unilateral
changes in terms and conditions of employment, with in-
terest.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Hubbard, Ohio facility copies of the at-
tached notice marked "Appendix." 21 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that any alleged viola-
tion of the Act not found be dismissed.
21 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 Nation-
al 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."