The Charles Parker Co., Inc. And Union Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1987

285 N.L.R.B. 56 (N.L.R.B. 1987)

56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Charles Parker Company , Inc. and Union Man-
ufacturing Co., Inc . and United Electrical,
Radio and Machine Workers of America. Case
39-CA-2685
30 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 14 May 1986 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The General Counsel and the Respondents filed ex-
ceptions, supporting briefs, and answering briefs.
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,I and
conclusions and to adopt the recommended Order
as modified.
For the reasons set forth below, we conclude
that the Respondents violated Section 8(a)(1) and
(5) by dealing directly with employees and by en-
gaging in other bad-faith conduct that undermined
the bargaining process.
In July 1973 the United Electrical, Radio and
Machine Workers of America (UE) was certified as
the bargaining representative of the production and
maintenance employees of Respondent Union Man-
ufacturing Company, Inc. (Union Manufacturing),
located in Meriden, Connecticut. For over 40 years
UE has also been the recognized bargaining repre-
sentative of the production and maintenance em-
ployees of Respondent Charles Parker Company,
Inc. (Parker), also located in Meriden. Union Man-
ufacturing and Parker are affiliated business enter-
prises which formulate and administer a common
labor policy.
In its capacity as a bargaining representative, UE
has entered into bargaining agreements with the
Respondents covering the foregoing units. The
most recent of these agreements were effective by
their terms commencing 11 June 1981. They pro-
' The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
The General Counsel has excepted to the judge's failure to include in
the recommended Order a visitatorial clause authorizing the Board, for
compliance purposes, to obtain discovery from the Respondents under
the Federal Rules of Civil Procedure under the supervision of the United
States court of appeals enforcing this Order Under the circumstances of
this case, we find it unnecessary to include such a clause Accordingly,
we deny the General Counsel's request
vided that UE "in behalf of and in conjunction
with" UE Local 230 (Local 230, collectively the
Union), is the "sole and exclusive bargaining
agent ." In August 1983 these agreements were ex-
tended for a 1-year period subject to termination
thereafter on 5 days' notice. UE field organizer
John Lambiase serviced these bargaining agree-
ments on behalf of UE.
By the time of the contract extensions in August
1983, the Respondents were in a precarious finan-
cial condition and, as found by the judge, it was
generally known that the Respondents planned to
move their vacuum bottle operation to Mexico. On
11 January 1984 the parties reached agreement re-
garding the effects on employees caused by the re-
location and agreement on a wage reopener provi-
sion . Lambiase participated in these negotiations
and was a signatory to the agreements.
By July 1984 the relocation of the vacuum bottle
operation to Mexico was completed . On 13 Sep-
tember 1984 the Respondents informed Lambiase
that the extension agreements would be terminated
as of 19 September 1984. Additional retrenchment
of Respondents ' operations followed, with further
substantial reduction of their employee comple-
ment . In November 1984 the parties reached agree-
ment on the effects of these latest layoffs on em-
ployees.
On 21 January 19852 Lambiase requested a re-
sumption of negotiations but received no response.
In May the last manufacturing employees were laid
off, leaving only a small work crew remaining.
Thereafter, in early June, following complaints
from laid off bottle division employees, Lambiase
contacted the Respondents and helped facilitate is-
suance of severance payments negotiated previous-
ly by UE. The Respondents continued to remit
checked-off union dues to UE into June.
In or around June, a fire destroyed the facility in
Mexico where the Respondents ' vacuum bottle op-
erations had been relocated . In contemplation of a
possible return of the work from Mexico, Plant
Manager Carado Annino approached bargaining
unit employees Roger Caron and Kenneth Knapp,
who were still employed at Meriden (neither Lam-
biase nor Local 230 President David Smith was
contacted by the Respondents). According to
Knapp , Annino informed him that the Respondents
wanted to bring the bottle operation back to Con-
necticut and stated , "we have some proposals for
you." Although Caron testified that he was told by
the Respondents to get in touch with Lambiase, the
judge expressly discredited Caron's testimony in
2 All dates hereafter are in 1985 unless noted otherwise
285 NLRB No. 6
CHARLES PARKER CO.
this regard.3 Nevertheless, apparently on his own
initiative, Caron contacted Lambiase by telephone
on 20 June and then met with him on Tuesday,. 25
June, appearing with a complete contract proposal
from management in hand. Caron informed Lam-
biase that the proposal was given to him by Plant
Manager Annino. Caron told Lambiase that the
Respondents needed a signed agreement by the
morning of Friday, 28 June, prior to a board of di-
rectors meeting of the Respondents. Caron also
told Lambiase that the decision to return the
vacuum bottle operation to Connecticut depended
on execution of such an agreement or the few re-
maining employees would lose their jobs.
On 25 June Lambiase contacted Edmund Bruno,
UE representative for the New England area. The
following day, 26 June, Lambiase and Bruno re-
viewed management's contract proposal, as re-
ceived from employee Caron, and contacted Local
230 President Smith, who had been laid off in May.
Lambiase and Bruno then contacted the Respond-
ents' president, Dibble.
As described in greater detail by the judge, the
parties conducted negotiation sessions and dis-
cussed the Respondents' proposals on 26 and 27
June. Dibble and Annino represented the Respond-
ents. Lambiase and Bruno represented UE at the 26
June session. Bruno was unable to attend negotia-
tions on 27 June. Local 230 President Smith did
not attend the sessions on either day. Caron and
Knapp attended all the meetings, as noted below.
The 27 June meeting commenced at 8 a.m. Coun-
terproposals were exchanged and agreements
reached on several provisions. During the session,
Lambiase informed Dibble that he had other prior
committments and would have to excuse himself
but would call Dibble to resume negotiations prior
to the Friday board of director's meeting. After his
departure and the successful cancellation of his
other commitments, Lambiase called Dibble at 3
p.m., on 27 June, to arrange resumption of negotia-
tions. Dibble, however, informed Lambiase that an
agreement had been reached and signed in Lam-
biase's absence. Lambiase spoke with Caron and
Knapp that day and was told by them that "the
employees had signed the agreement." The agree-
ment reached contained provisions not discussed
previously in Lambiase's presence.
On 2 July Lambiase met with Dibble and re-
ceived a copy of the purported agreement. Lam-
biase declined both Dibble's request to sign the
agreement and Dibble's suggestions that UE dis-
claim interest in representing the employees. On 3
July Lambiase again rejected Dibble's suggestion
3 Neither Ammno nor the Respondents' president, Derek A. Dibble,
testified at the hearing.
57
to sign the agreement and to disclaim interest. In
response to Lambiase's invitation of a union coun-
teroffer, Dibble stated that would be fine but he
was not looking for prolonged negotiations, it had
to be "something quick," and that the Respondents
needed "broad freedoms," including "the freedom
to be unfair," if necessary. Dibble indicated that
any offer would have to be based on the previous
agreement signed by the employees and remarked
to Lambiase that the employees trusted the Re-
spondents because "no one in the right mind would
sign an agreement like this unless they trusted us."
Thereafter, Dibble informed Lambiase that the Re-
spondents absolutely could not live with a union-
shop arrangement.
By letter of 10 July, Lambiase indicated to
Dibble that the UE remained willing to negotiate a
new agreement but did not want the Respondents
to negotiate directly with the employees and did
not consider itself bound by the previous agree-
ment signed by the employees. The Respondents
did not reply to the 10 July letter. There is no evi-
dence that the Respondents implemented the agree-
ment executed with the employees on 27 June or
that they resumed their vacuum bottle, operation in
Meriden.
Based on the foregoing, we find that the Re-
spondents violated Section 8(a)(5) and (1) in the
following respects. Initially, we find that the Re-
spondents unlawfully bypassed UE, the certified
and recognized bargaining representative, when
they tendered a written contract proposal directly
to their employees before tendering the offer to
UE. Thus, as found by the judge, UE received ,the
Respondents' written proposal directly from em
ployee Caron on 25 June, who, in turn, received
the proposal from Plant Manager Annino.
In addition, we find that the Respondents unlaw-
fully bypassed the Union when, on 27 June, they
executed a written agreement directly with em-
ployees.4 Notwithstanding the assurances tendered
by UE representative Lambiase that UE would
resume negotiations prior to the 28 June board of
directors' meeting, the Respondents' president,
Dibble, executed the agreement with the employ-
ees in the absence of Lambiase. Moreover, this
4 For the reasons set forth by the judge, we agree that the Respond-
ents could not reasonably believe that employees Caron and Knapp were
acting in an official capacity on behalf of either UE or Local 230. We
note particularly that there is no credible evidence that either employee
informed the Respondents or UE that he occupied officer status in Local
230-which already had an incumbent president in David Smith; and
there is no evidence that the purported officer status of Caron and Knapp
was undertaken in accordance with established intraunion procedures for
the designation of union officers Further, even according to Knapp's tes-
timony, Plant Manager Annmo initially approached Knapp and Caron on
or before 25 June with an offer to discuss contract proposals before their
ostensible designation as union officers
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"agreement" contained provisions not discussed
previously with UE.5 Such conduct clearly violat-
ed the Act. TLI, Inc., 271 NLRB 798, 803-804
(1984), enfd. mem. sub nom. Teamsters Local 326
(Crown Zellerbach) v. NLRB, 772 F.2d 894 (3d Cir.
1985).
Further, we find that the execution of the agree-
ment in Lambiase's absence on 27 June effectively
foreclosed the possibility of future meaningful bar-
gaining , particularly as it occurred just prior to the
important 28 June board of directors' meeting, and
that this conduct so substantially undermined the
ongoing bargaining process as to constitute bad-
faith bargaining.6 Obviously, whatever the role of
Local 230 or that of the employee participants, the
Respondents possessed a statutory obligation to ne-
gotiate with UE as the certified and recognized
bargaining representative and a duty to execute
with, UE any agreement reached. UE contemplat-
ed, and made it known to the Respondents, that ne-
gotiations could and would resume before 28 June
once Lambiase disposed of his previous commit-
ments . When Lambiase telephoned Dibble at 3
p.m., on 27 June, negotiations likely could have re-
sumed but for Dibble's representation that an
agreement already had been reached. This effec-
tively foreclosed meaningful bargaining with UE
during the most critical period of the negotiations.
Indeed, Dibble's subsequent suggestion to Lambiase
on 2 and 3 July that he simply sign the agreement
as executed or-disclaim interest in representing the
employees, serves to emphasize the abrupt changed
circumstances surrounding future bargaining engen-
dered by the execution of the agreement on 27
June . That Dibble was amenable to another offer
from the Union if it was "something quick," along
the lines of the agreement containing "broad free-
doms" executed with the employees, does not, by
any means, establish that bargaining was unimped-
ed by the conduct of the Respondents. According-
ly, we fmd that the Respondents also violated the
Act in the foregoing respect.7
5 We find it unnecessary to adopt the judge's apparent suggestion at
sec. B, 1 of his decision that the Respondents necessarily would run afoul
of the Act merely by "speaking" to employees Caron and Knapp during
negotiations on 27 June . As Lambiase clearly was aware of the presence
of these employees during negotiations , a mere exchange of views with
Caron and Knapp by the Respondents , in the context of ongoing negotia-
tions with the recognized bargaining representative , raises altogether dif-
ferent considerations from the execution of an agreement in the absence
of Lambiase containing provisions not discussed with Lambiase.
B For the reasons set forth by the judge, particularly the Respondents'
failure to question or dispute the Union's majority status during their con-
tacts with UE in June and July, we find no merit to the Respondents'
contention that they possessed a good-faith doubt as to UE's continued
majority status and therefore did not violate the Act
7 Because we find that the Respondents failed to bargain in good faith
in the respects indicated above, we find it unnecessary to consider wheth-
er the Respondents' bargaining , with regard to the substance of their pro-
posals, also was undertaken in bad faith Thus, we find it unnecessary to
As previously noted, however, there is no evi-
dence that the Respondent implemented changes in
terms and conditions of employment. We note that
during closing arguments at the hearing, the Gen-
eral Counsel conceded that he had "no knowl-
edge" concerning whether the Respondents imple-
mented any new contract provisions. Indeed, at the
hearing, the judge dismissed the complaint insofar
as it alleged the unlawful implementation of terms
and conditions of employment. Accordingly, we
shall dismiss that portion of the complaint.8
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, The Charles Parker Company, Inc. and
Union Manufacturing Co., Inc., Meriden, Connecti-
cut, their officers, agents , successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Delete paragraphs 1(b), 1(d), and 2(b) of the
judge's recommended Order and reletter the subse-
quent paragraphs accordingly.
2. Substitute the following for paragraph 2(a).
"(a) In the event that the Respondents resume
their former operations in Meriden, Connecticut,
they will, on request, bargain collectively and in
good faith with United Electrical, Radio and Ma-
chine Workers of America as the exclusive bargain-
ing representative of all employees employed in the
aforesaid bargaining units with respect to wages,
hours, and other terms and conditions of employ-
ment of the employees in the bargaining unit, and
reduce to writing any agreement reached as a
result of such bargaining."
3. Substitute the attached notice for that of the
administrative law judge.
consider or adopt the judge's general discussion set forth at sec. B,3 of
his decision
e As there is no allegation or evidence that the Respondents unlawfully
failed to bargain concerning the effects on employees of any termination
of operations or subcontracting of work, we shall delete that portion of
par 2(a) of the judge's recommended Order
Further, although the Respondents apparently have ceased active man-
ufacturing operations in Meriden , Connecticut, they nevertheless, retain
personnel at the facility to process the return by customers of vacuum
bottles. In addition, it is unclear whether the Respondents have, at any
other location, resumed or attempted to resume their vacuum bottle oper-
ations subsequent to the destruction of their facility in Mexico In these
circumstances, we agree with the judge that it is appropriate to order the
Respondents to bargain with UE in the event that they resume their
former operations in Meriden, Connecticut Strand Theatre, 235 NLRB
1500 (1978), enfd. 595 F 2d 454 (8th Cir. 1979)
CHARLES PARKER CO.
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 refuse to meet and bargain collec-
tively with United Electrical Radio and Machine
Workers of America, and its Local 230, as the ex-
clusive collective bargaining representative of our
employees in the following collective-bargaining
unit:
All production and maintenance employees, in-
cluding shipping and receiving employees, and
set-up men, employed by the Company at its
Meriden, Connecticut facility, but excluding
clerical employees, engineering department
employees, guards, foremen, subforemen, and
supervisors.
WE WILL NOT submit contract proposals to, ne-
gotiate with, or otherwise deal with any of our em-
ployees 'in the above unit directly in order to
bypass the Union.
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 and in
good faith with United Electrical, Radio and Ma-
chine Workers of America as the exclusive bargain-
ing representative of all employees employed in the
aforesaid bargaining units with respect to wages,
hours, and other terms and conditions of employ-
ment of the employees in the bargaining units, and
reduce to writing any agreement reached as a
result of such bargaining, in the event that we
resume our former operations in Meriden, Con-
necticut.
THE CHARLES PARKER COMPANY,
Ii c.
Michael Marcionese, Esq., for the General Counsel.
Ronald Lasky, Esq., of Hartford, Connecticut, for the
Respondent.
John Lambiase, of Hartford, Connecticut, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard by me at Hartford, Connecticut, on
59
13, 14, and 15 January 1986. The charge was filed by
United Electrical, Radio and Machine Workers of Amer-
ica (UE or the International) on 1 July 1985 and the
complaint was issued on 13 August 1985. The Respond-
ent's answer denies almost all the allegations, including
allegations to the effect that at all pertinent times The
Charles Parker Company, Inc. and Union Manufacturing
Co., Inc. (the Respondent, Parker, and Union Mfg., re-
spectively), were Connecticut corporations having a
common place of business in Meriden, Connecticut, and
constituted a single-integrated business, enterprise and a
single employer engaged in commerce within the mean-
ing of the Act, and that they met the jurisdictional re-
quirements of the Board for purposes of this case. The
nub of the case alleged against the Respondent is that
after first meeting with the UE, which represented its
production, maintenance, and shipping and receiving em-
ployees at Meriden, respecting renewal of their expired
collective-bargaining agreement, Respondent bypassed
UE and dealt directly with the employees, entering into
an agreement directly with them and implementing nu-
merous changes in wages, hours, and working conditions
without affording UE an opportunity to negotiate and
bargain as the exclusive representative of the employees,
in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act).
The Respondent's answer admits that the charge was
filed and served on 1 and 2 July 1985; that UE is a labor
organization within the meaning of Section 2(5) of the
Act; and that the persons named in the complaint such as
the president, secretary-treasurer, and plant manager of
the Respondent hold the job titles ascribed to them.
The parties were afforded full opportunity to be heard,
to call, examine, and cross-examine witnesses , and to in-
troduce relevant evidence. Posthearing briefs have been
filed on behalf of the General Counsel and the Respond-
ent.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION'
Uncontroverted testimony from John Lambiase, a field
organizer for UE, Kenneth Knapp, and David Allen
Smith, former employees, and Lenore Lawry, an execu-
tive secretary in the employ of the Respondent, and in-
formation contained in the annual report of Union Mfg.
for 1983 and in a Dunn & Bradstreet report for that year,
establish that Union Mfg. imported merchandise from
Italy, and Union Mfg. and Parker shipped merchandise
to customers all over the United States. Parker routinely
received (and is still receiving) returns from customers of
I Matters narrated in this decision without evidentiary comment are
those facts found by me on the basis of admissions in the answer, data
contained in the exhibits , stipulations between or concessions by counsel,
undisputed or uncontradicted testimony , and, in instances where conflicts
in the testimony did not warrant discussion, the testimony that I have
credited.
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vacuum bottles that it sold under a lifetime guarantee.
From and after July 1984, when Parker transferred the
production of vacuum bottles to a plant that it estab-
lished in Mexico, there was much transshipment of the
bottles between Parker in Meriden and the Mexican fa-
cility. Knapp testified to having worked personally on
bottles shipped in from Mexico and testified that they
were shipped back to Mexico; he learned this by reading
the shipping data on the packaging and from statements
made to him by Carado Annino, the plant manager. The
material received included both customer returns and
bottles returned from Mexico for reworking.
In a similar vein, David Allen Smith, a 19-year em-
ployee who was president of the Local, testified to ship-
ments of numerous Parker products across state lines,
movement of bottles back and forth between Connecti-
cut and Mexico, Union Mfg.'s shipment of meat grinders
in interstate commerce, and importation of plastic chop-
pers and knife sharpeners from foreign countries. He had
no reliable information about the dollar amounts of such
transactions.
Lambiase testified on the basis of his own familiarity
with the operations of the Respondent, with whom he
had dealt for 6 years, and information gleaned by him
from an inspection of records in 1983. In response to the
Union's request , data had been made available regarding
Respondent's operations that showed that both Union
Mfg. and Parker had nationwide sales. Union Mfg. im-
ported products from Italy until at least June 1985.
Parker was selling its thermos bottles nationwide, and
both the company records and the 1983 Dunn & Brad-
street report confirmed this, putting sales at $13 million,
10 percent of which was exported overseas. After the
bottle operation was moved to Mexico in July 1984,
there were numerous shipments back and forth between
Meriden and the Mexican location. Lambiase expressed
the opinion, on the basis of these sources of information
and background information gleaned from his work in
organizing , handling grievance meetings, and negotiating
contracts, that Respondent "couldn't possibly have not"
sold or shipped more than $50,000 in goods in 1984, the
last complete fiscal year prior to the events of this case,
or during the 12-month period ending 30 June 1985. He
conceded that his opinion was based on "surmise."
The General Counsel did not have any hard evidence
respecting the dollar volume of interstate or international
shipments, but I do not find it unreasonable to suppose
that a union representative who has dealt with a particu-
lar company over a period of years and has had access
to its books, even if on only one occasion, may be able
to form an opinion about the nature and volume of the
company's business, both at the time he sees the records
and for a prior period, proximate to the period covered
by the records 'that he has seen. By reason of his repre-
sentative status, he would inevitably become familiar
with the size of the Company's work force and the fluc-
tuations that occur in it. However , on cross-examination,
Lambiase revealed a lack of knowledge of details that
lessened the authoritativeness of the opinion that he ex-
pressed. -
Nevertheless, no evidence was introduced to contro-
vert Lambiase's testimony, and doubts about the quality
of the General Counsel's proof respecting the volume of
interstate and international business conducted by Re-
spondent must be resolved in favor of the General Coun-
sel by reason of Respondent's failure to honor a subpoe-
na that the General Counsel served shortly before the
hearing. Had Respondent complied with it, evidence
would have been available pertinent to the jurisdictional
issues raised in Respondent 's answer . Because the statu-
tory jurisdiction has been established, I have undertaken
determination of the case notwithstanding the absence of
data that would demonstrate whether or not the case is
within the Board's jurisdictional standards. Tropicana
Products, 122 NLRB 121 (1958).
Respondent contested the validity of the service of the
subpoena, copies of which were served by certified mail
addressed to Derek A. Dibble, Respondent's president,
and Charles J. Karpe, the treasurer, at 290 Pratt Street,
Meriden, in late December 1985. By that date the Re-
spondent had moved to 140 West Main Street, Plants-
ville, Connecticut. I ford that the service of the subpoena
was valid, having been made in compliance with perti-
nent rules and having afforded actual notice to the Re-
spondent.
Section 102.111 of the Board's Rules and Regulations
authorizes service of subpoenas by certified mail at the
principal office or place of business of the person re-
quired to be served, and requires that a copy be served
on any attorney who has entered a written appearance in
the proceeding on behalf of the party. The Federal Rules
of Civil Procedure apply to proceedings before the
Board insofar as applicable, and they permit service of
subpoenas at a party's last known address. This is emi-
nently a case in which to apply the Federal Rules, for if
the Respondent moved, it did so well after the institution
of these proceedings, on the very eve of the trial, and
failed to notify the General Counsel., In any event, the
evidence does not necessarily require a fording that the
Respondent moved, and, whether it did or not, it had
actual notice of the subpoena. The building at 290 Pratt
Street in Meriden was sold by Respondent to Pratt Asso-
ciates. Respondent leased a portion of the premises from
the new owners and installed several employees there,
including an executive secretary named Lenore Lawry.
Respondent, which now calls itself "Union Parker,"
moved its officers, Dibble and Karpe, to premises occu-
pied by a subsidiary of Union Mfg., known as Five Star
Company, 140 West Main Street, Plantsville. The reason
I question whether Respondent "moved" in the conven-
tional sense of the term is that as of December 1985,
almost none of the operations continued to be performed.
The evidence in the record indicates only that Respond-
ent continued servicing vacuum bottles returned by cus-
tomers. Dibble and Karpe were located at Plantsville,
but the mail was still coming in to Meriden, which is
why Lawry has been stationed there since November
1985.
Some 75 to 100 pieces of mail are delivered in a mail
sack to Lawry at Pratt Street, Meriden, every morning.
Lawry testified that certified and registered letters arriv-
ing in the mail sack come without the green cards, and
bottle returns continue to come in. Respondent's mail is
CHARLES PARKER CO. 61
picked up at the post office by a private mail delivery
service and brought to Pratt Street; this has been the
procedure for about the last 9 years. Lawry sorts out the
mail and someone from Plantsville picks it up later in the
day. Lawry turns over mail addressed to individuals un-
opened. Continuing warranties and other business re-
quirements have apparently made it necessary for Re-
spondent to maintain its presence at Pratt Street in a
very real sense.
Lawry's testimony, considered together with the un-
disputed fact that a copy of the subpoena was mailed to
Respondent's counsel at the time it was served on Re-
spondent at Pratt Street, leaves no room for doubt either
that the Respondent received the subpoena or that notice
of its service and its contents ought to be attributed to
the Respondent, I accordingly infer that had the request-
ed records been produced, they would have established
that the Respondent's business volume satisfies the
Board's jurisdictional requirements.
I note that the failure of the Respondent to honor the
subpoena also left the General Counsel without proof of
the legal composition of Union Mfg. and Parker, or time
to obtain independent proof by way of certified reports
from the appropriate governmental agencies or county
clerk's offices. In spite of this, it is plain that they were
business entities that entered into contracts and collec-
tive-bargaining agreements , made sales , collected ac-
counts, leased and sold real estate, and conducted all the
usual activities of business enterprises . The lack of a pre-
cise definition of their legal composition does not pre-
vent determination of their status as businesses in inter-
state commerce within the meaning of the Act.
Accordingly, I find that at the pertinent times men-
tioned in the complaint the Respondent was, and for the
purposes of any remedy herein granted is, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union was and
is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background
Union Mfg. and Parker, its wholly owned subsidiary,
occupied a building at 290 Pratt Street, Meriden, Con-
necticut. Union Mfg.'s annual reports carried consolidat-
ed balance sheets and financial statements for it and its
subsidiaries. Union Mfg. marketed in the United States a
line of kitchenware products produced in Italy and a
meat grinder that it manufactured in its own chopper di-
vision. In January 1984 it had 12 employees. Parker man-
ufactured washroom equipment and accessories, such as
cabinets, metal railings for installation in new construc-
tion, and metal vacuum bottles (under contract with
Union Mfg., which apparently owned the rights to
them). In January 1984 Parker had 130 employees. Union
Mfg.'and Parker had the same corporate officers and the
same personnel director. Lambiase, in all his dealings
with them (from 1979 on), had dealt with the same per-
sons for both companies. Parker had a long history of
dealings with United Electrical.
On 5 July 1973, UE was certified as the exclusive rep-
resentative of employees in a unit defined as: '
All production and maintenance employees of the
Employer employed at its plant at 290 Pratt Street,
Meriden, Connecticut, but excluding office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
The last collective-bargaining agreements negotiated
beween the Respondent and UE covered the period from
11 June 1981 through 11 June 1983 and were extended to
11 June 1984. The Respondent, in separate contracts exe-
cuted by Union Mfg. and Parker, recognized the United
Electrical, Radio and Machine Workers of America "in
behalf of and in conjunction with Local 230, United
Electrical, Radio and Machine Workers of America" as
the sole and exclusive bargaining agent for:
all Production and Maintenance employees of the
Company, including shipping and receiving employ-
ees, and set-up men, but excluding clerical employ-
ees, engineering department employees , guards,
foremen, subforemen, and any other supervisory
employees with authority to hire, promote, dis-
charge, discipline or otherwise effect changes in the
status of employees or effectively recommend such
action.
By August 1983, when the 1-year extensions were
agreed to, both Union Mfg. and Parker were in serious
financial difficulty. Union Mfg. reported in its annual
report for 1983 that the year had been a difficult one fi-
nancially and that the Company was in the process of re-
structuring its organization and operations and imple-
menting a "redeployment of assets," including an attempt
to sell the building it occupied in Meriden. The 1983
annual report indicated that methods of procuring
vacuum bottles from outside the United States were
being explored. It was anticipated that restructuring
would be complete in 1985.
In late August 1983 it became generally known that
Respondent planned to move the vacuum bottle oper-
ation to Mexico. UE sought negotiations on the effects of
the impending layoffs. Effects bargaining lasted from
September through December 1983, and resulted in an
agreement with Parker covering the effects on employ-
ees of the bottle division, dated 11 January 1984, and an-
other agreement with Union Mfg. dated 20 January 1984
increasing the wages of its employees.
Early in 1984, Union Mfg. and Parker began a series
of retrenchments: liquidation, on completion of orders, of
the grille and rail departments and the chopper depart-
ment; consolidation into a single unit of the cabinet,
brass, and press departments, together with the service
operations; and removal to a new location of all office,
engineering, and production control personnel with the
washroom products division. By July 1984 the vacuum
bottle manufacturing operation had ceased to operate in
Meriden and had been shifted to a facility in Mexico.
The number of Parker employees in Meriden by that
time had been reduced to 60.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The extension agreements that had been entered into
in August 1983 provided for termination on 5 days'
notice. On 13 September 1984 Union Mfg. served notice
on UE, by letter addressed to Lambiase, that "Union
Manufacturing Company and The Charles Parker Com-
pany will on September 19, 1984 terminate the extension
of the collective bargaining agreement which expired on
June 11, 1984." UE responded with a letter, dated 17
September 1984, stating that "U.E. Local 230 is ready,
able and willing to continue working after September 19,
1984 pending the negotiation of a new contract under
the same terms and conditions currently in effect." The
Respondent did not answer the invitation to negotiate,
but on 17 September 1984 it posted a notice to its em-
ployees that "there will be no changes to wages, hours
or working conditions at this time."
On 15 October 1984 Parker announced its intention to
sell the washroom products division. UE and Parker
reached an agreement on the effects in November. The
layoff of the Washroom Products employees-reduced the
total number of employees in the premises to a dozen, of
whom one was employed by Union Mfg. and the rest
were employed by Parker. The last manufacturing em-
ployees were laid off in May 1985.
On 21 January 1985 Lambiase prodded the personnel
manager with a letter suggesting that they meet and
begin negotiations for a new agreement. He received no
response. There was no further contact between the Re-
spondent and Lambiase until early in June 1985, when
Lambiase received complaints from laid-off bottle divi-
sion employees that they were not receiving the sever-
ance payments that the Union had negotiated for them
and that were supposed to begin during the first week of
June. Lambiase contacted Respondent and Respondent
began issuing the checks on 12 or 13 June.
Very shortly thereafter, it became known that the
vacuum bottle production facility in Mexico had been
destroyed by a fire. Statements made to an employee
named Roger Caron by Derek A. Dibble, the president,
conveyed the impression that the Respondent was faced
with the necessity of deciding, very quickly, whether to
liquidate its equipment in Mexico or remove it from the
Mexican location. One of the options considered was
bringing the vacuum bottle manufacturing operation
back to Meriden. With this prospect in mind, negotia-
tions were opened for a new collective-bargaining agree-
ment, wherein the events occurred that gave rise to the
present case.
The negotiations, which are described in more detail
below, were conducted on Wednesday afternoon, 26
June, and on Thursday morning, 27 June, by Lambiase,
acting for UE, and Dibble and Annino, acting for the
Respondent. Roger Caron and Kenneth Knapp were
present as an employees ' negotiating committee. Edmund
Bruno, another UE official, also attended the Wednesday
session . Because the negotiations had come up on ex-
tremely short notice, Lambiase had not had the chance
to clear his calendar for Thursday afternoon and Friday.
Accordingly, he departed from the negotiations at the
conclusion of the session on Thursday morning. Lam-
biase testified that he told Dibble he would telephone
him at 3 p.m. on Thursday to arrange for further negoti-
ations and would try to clear the calendar. He tele-
phoned Dibble at the appointed time and advised him
that he was clear for the balance of Thursday afternoon,
Thursday night and, if necessary, Friday. Dibble advised
him that there was no need because the contract had al-
ready been completed and signed. Lambiase saw the exe-
cuted agreement on 2 July. It was signed by Caron,
Knapp, and two other employees.
B. Failure and Refusal to Bargain in Good Faith
The complaint alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act in three respects: by by-
passing the Union, submitting its contract proposal di-
rectly to the unit employees on the afternoon of Tues-
day, 25 June 1985; by implementing changes in working
conditions without giving the Union a chance to negoti-
ate on the subject; and by its overall acts and conduct.
1. Bypassing the Union: submission of proposal
directly to unit employees
Lambiase testified that Respondent did not contact
him directly to initiate negotiations for a new contract.
Instead, on 20 June Roger Caron, an employee who held
no union office, telephoned him to advise him that he
had heard from the Company that the bottle division
might be brought back from Mexico. He met with Caron
at a pizzeria near the facility on Tuesday, 25 June, about
4:30 p.m. Caron appeared with a complete contract in
hand that he said had been given to him by Carado
Annino, the plant manager. Caron told Lambiase that he
had learned- from Annino that the Company needed a
contract executed in time for a board of directors meet-
ing scheduled for 10 a.m. on Friday, and that the deci-
sion on whether the bottle manufacturing division would
be brought back to Connecticut depended on what kind
of a contract could be negotiated by that time. Caron
also told Lambiase that if a contract was not executed by
Friday morning, they would be losing their jobs.
Lambiase testified that on 25 June he contacted
Edmund Bruno, the United Electrical Workers repre-
sentative for New England. Bruno joined Lambiase the
following day, Wednesday. They conferred at noontime,
reviewing the proposed contract, contacted Smith, who
had been laid off in May 1985 and was working the
second shift with another employer, and contacted
Dibble. At 3 p.m. they sat down with Dibble in the com-
pany conference room. Smith did not attend. Lambiase
and Bruno negotiated for the Union, with Caron and
Knapp present, while Dibble and Annino represented the
Respondent. Bruno's testimony corroborated Lambiase's
testimony that they had the proposed contract in their
possession on Wednesday morning and reviewed it
before meeting with Dibble and Annino.
Some of Caron's testimony would make it appear that,
in approaching him, Respondent was not bypassing the
Union, but was simply using him as an intermediary to
contact the Union. At one point, he testified, "Well, we
had to get-the company wanted us to get a hold of
John Lambiase." At another point, he stated, "[T]hey
asked us to get a hold of Mr. Lambiase and see what we
could set up." His testimony presents a confused picture.
CHARLES PARKER CO.
For example, he appears to testify that at his first meet-
ing with Lambiase he did not have a proposed contract
from the Respondent in his possession, and he also seems
to indicate that at the first meeting with the company
representatives, at which Lambiase was present, no con-
tract was available:
Q. Did you tell Mr. Lambiase what you, the
local people, wanted in that contract with the com-
pany?
A. Well, when he first met with us, we didn't
have no contract at all.
Q. Right.
A. I mean no contract in our hand. The first time
we net, they told the company they had to come
back with a contract and then we would talk.
Q. And so then you met with the company?
A. We met with the company after that, yes.
Because he goes on to testify that there were three meet-
ings with the Company, at two of which Lambiase was
present, the import of his testimony would appear to be
that the meetings with the Company took place after the
Company was informed that a contract would be needed
as a basis for discussion.
Caron presents two versions of the inception of the ne-
gotiations. In one version, the impetus came from the
Respondent, after which the remaining employees on
active payroll came to him and voted him in as president
of the local, because there were no officers left, so that
he could represent them in negotiations to bring the
bottle manufacturing division back. The Company
wanted him to get hold of Lambiase, so as soon as he
was elected he called Lambiase and told him the Compa-
ny wanted a meeting . Lambiase said he would come
down and meet with them. He then testified that they
met, without a contract having been prepared, and the
Company was told to come back with a contract, but he
was vague about who, where, or when they met. In the
other version that Caron tells, the employees, on hearing
that the Mexican plant had burned down, discussed it
among themselves and decided to ask "the company"-
in the persons of Dibble and Annino, who just happened
to be, standing around, available and together-what they
could do to bring the bottle manufacturing division back.
"They"-Dibble and Annino-responded that it was up
to .them and they "asked us" to contact Lambiase and
"see what we could set up."
Further differences in the story between Caron and
Lambiase are that Caron disclaims having told Lambiase
anything about losing jobs if they did not get the con-
tract; he testified that he told Lambiase only that the
people wanted the contract. Apparently they wanted it
sight unseen , since at this point there was no contract,
according to him; he did not explain why, if there was
no danger of losing their jobs, they were so hot for the
unseen contract. Another point of difference between
Caron and Lambiase is the place of their meeting. Caron
says Lambiase met him and the other employees on the
company premises for their initial discussion, which
seems unusual.
I note that Caron, an employee with Respondent for
22 years, is now a salaried employee of Pratt Associates,
63
290 'Pratt Street, Meriden. Pratt Associates is the new
owner of Respondent's building. There is no evidence by
which to assess the significance of this circumstance, but
I am of the impression that Caron was favorably dis-
posed toward Respondent and hostile to Lambiase, with
whom he had several disagreements. He was not con-
cerned, as Lambiase was, with the interests of the laid-
off workers. He testified that he was primarily interested
in keeping the few remaining jobs that were left in Meri-
den, and that he believed that cabinet department em-
ployees, who had received no severance pay or contin-
ued insurance coverage when they were laid off, as con-
trasted with others, should have first right to recall to
jobs in the bottle department if it was brought back, sub-
ject to the Company's discretion to determine whether
they were capable of doing the work (a qualification that
parrots the words of Respondent's proposed contract).
The only inference that I can reasonably draw from
Caron's testimony is that Respondent tried to negotiate
directly with him and bypass UE. Caron's assertion that
he was told to get in touch with Lambiase is not credi-
ble. Respondent's officers well knew that if they wanted
to negotiate, they should contact Lambiase. They knew
where to find him, having dealt with him for years.
They had his address on the letter he sent them on 21
January 1985 suggesting that they begin negotiating a
new contract. They were still remitting checkoff dues to
UE-they continued to do so into the month of June
C1985.
The other major actor in the direct negotiations be-
tween Respondent and the employees was Kenneth
Knapp, whose testimony at some points contradicted the
testimony of Caron . He testified that he told the Compa-
ny that Caron and he were officials of the local and ne-
gotiated with them on that basis, but his testimony, if it
were credited, makes it abundantly clear that even in his
own mind his tenure was fleeting and temporary. He tes-
tified that he and Caron were elected as "acting" offi-
cers, he being, elected as "acting vice president," and that
the two acting officers were elected "for that period of
time" to act as a bargaining committee with the Compa-
ny. The manifest illegality of this "election" for a limited
purpose is obvious. Knapp's confusion respecting his role
is apparent from his testimony that:
All they said was we want to bring the bottle back
to Connecticut here and we have some proposals
for you . And then we went to the union and we de-
cided to get up a committee.
He testified that Annino approached him on the floor of
the factory, but offered two contradictory recollections
about how the Company's proposals were presented.
One was that they were first presented at the meeting
with Lambiase , which contradicts everybody else's testi-
mony. The other was that he and Caron were elected as
"acting" officers because Annino had presented them
with a contract proposition and there were no officers of
Local 230 still working in the plant and available to
handle it . When he was testifying on the question of
whether anyone had ever advised Lambiase of his and
Caron 's election, he conceded that he had not, and as-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
serted that Caron had stated that he would advise Lam-
biase of it when he took the contract proposal to him.
This supports Lambiase 's testimony that he had 'the pro-
posal in time to review it with Bruno . I also credit Lam-
biase's testimony that Caron never told him of the elec-
tion . Lambiase testified that he did not hear of Caron's
and Knapp 's claim to election as officers of the Local
until he heard their testimony at the hearing.
Knapp testified that his election took place on compa-
ny time at the company premises . He was vague con-
cerning the nature of his duties as "acting vice president"
and testified that he assumed that his duties were to assist
the president to negotiate a good contract . He conceded
that none of the formalities of election were complied
with and displayed a complete ignorance of the structure
of the union organization or the identity of the officers
of the district and the International . He conceded that he
did not say much in the negotiating sessions , and, while
claiming to have been present in the capacity of acting
vice president, his testimony was evasive regarding
whether he had advised Lambiase that he held such
office; I conclude from his testimony that he did not
advise Lambiase that he claimed to hold such an office.
Neither Caron nor Knapp had any legal claim to office
in the Local, a point explored further in the next section.
Their claim was so tenuous and the evidence of their
failure to assert it so overwhelming that no conduct of
Dibble or Annino can be justified on the basis that they
thought they were dealing with officers of Local 230.
Caron and Knapp were vague about the circumstances
under which the agreement was signed on 27 June in
Lambiase 's absence . Knapp could not remember whether
Lambiase had been present at the negotiating session that
morning. He conceded that Lambiase may have excused
himself to meet other commitments but, "everything hap-
pened so fast that I don't recall if he was there or not,
you know, at that last meeting ." He implied that at a fur-
ther meeting after Lambiase left, there was more give
and take; but, like Caron , he could not say what was
given and what was taken . Caron conceded that he did
not understand all the terms of the contract he had
signed and was even unclear as to the basis of Lam-
biase's objections to it . He had no recollection of the dis-
cussion supposedly held at the final meeting pertaining to
the Company's very important proposal setting up the
categories of employees . Knapp testified that they felt
that the Company had, after considering the UE counter-
proposals , improved its own proposal , and that the con-
tract ,could not be substantially improved without "going
out for months and months . So, the membership decided
to sign it." He conceded that the improvement in the
company proposal was minor ' compared to other objec-
tionable items on which Respondent had remained insist-
ent, and that the contract presented to them for signature
was basically the same contract that they had seen the
day before.
It would have been interesting , to hear Dibble 's expla-
nation of the manner in which he had initiated- the nego-
tiations and obtained the employees ' signatures to the
contract. However, Respondent did not elect to produce
him and offered no explanation for the failure to do so.
Respondent's counsel , during arguments on the question
of the validity of the subpoena directed to Dibble, hinted
that he might be out of touch with his client-so out of
touch that it could not be assumed , even, that counsel
was being paid for his services in representing Respond-
ent in these proceedings . Respondent 's counsel did not,
however , go so far as to assert that his'appearance was
pro bono work for the needy and the unavailable. Ac-
cordingly , I infer that had Dibble appeared and testified
truthfully , his testimony would not have been favorable
to Respondent 's case. Colorflo Decorator Products, 228
NLRB 408, 410 (1977), enfd. mem. 582 F.2d 1289 (9th
Cir. 1978). See also Bechtel Corp ., 141 NLRB 844, 845,
852 (1963); Davis Walker Steel Corp., 252 NLRB 311
(1980); Teamsters Local 959 (Northland Maintenance), 248
NLRB 693, 698 (1980); Martin Luther King, Sr., Nursing
Center, 231 NLRB 15 (1977).
Even if Dibble had asked Caron to contact Lambiase,
the fact that he had done so would not excuse the pres-
sure that he exerted directly on the employees to secure
their acceptance of management 's contract proposals. His
conduct was identical with that of the employer found
guilty of violation of Section 8(a)(5) of the Act in Riney
Printing Co., 262 NLRB 157 ( 1982).
Because the evidence is so overwhelming that Caron
and Knapp possessed neither actual nor apparent author-
ity to negotiate and execute an agreement with Respond-
ent, I conclude that Dibble could not and did not enter-
tain any reasonable belief that they did possess such au-
thority. His conduct , in dealing with them , was precisely
the type of conduct proscribed by the United States Su-
preme Court in Medo Photo Supply Corp. Y. NLRB, 321
U.S. 678 (1944). Contemplating a factual situation in that
case not at all unlike the one in this case , the Court com-
mented:
Bargaining carried on by the employer directly
with the employees, whether a minority or majori-
ty, who have not revoked their designation of a bar-
gaining agent , would be subversive of the mode of
collective bargaining which the statute has ordained
.. . orderly collective bargaining requires that the
employer be not permitted to go behind the desig-
nated representatives ... .
See also Spriggs Distributing, 219 NLRB 1046, 1049
(1975), another case with facts similar to those of the
present case.
Quite obviously , by sitting with them in two negotiat-
ing sessions , Lambiase did not somehow legitimate
Caron's and Knapp 's position ; he did not then know of
the claim to official position that they would subsequent-
ly assert in these proceedings . The reverse is equally
true : the fact that Knapp and Caron were on a negotiat-
ing committee that met with management when Lam-
biase did, did not make them by virtue of that circum-
stance the Union 's agents for the conduct of negotiations
in his absence. Concededly, while Lambiase was present
they remained silent, did not speak on behalf of the
Union, and were not authorized to do so They were
therefore not, in the absence of Lambiase , agents of the
Union . Taft Broadcasting Co., 264 NLRB 185, 186 (1982).
Consequently , even though they were on the committee,
CHARLES PARKER CO.
Dibble, by speaking directly to them and bypassing the
designed UE representative, violated the Act. TLI, Inc.,
271 NLRB 798 (1984).
2. Implementing changes in wages, hours, and
working conditions
The Respondent contends that after 27 June 1985, it
was no longer required to adhere to the terms and condi-
tions of the expired collective-bargaining agreement be-
cause it had been superseded by the new agreement. Ar-
guments for the validity of the new agreement are two-
fold and mutually contradictory; on one hand, the agree-
ment was negotiated by and executed by authorized rep-
resentatives of the UE or by persons with apparent au-
thority to act, and, on the other hand, the UE no longer
represented a majority of the employees in the bargain-
ing unit and, therefore, the Respondent was free to nego-
tiate directly with its employees.
The evidence wholly fails to support either of these as-
sertions and, if anything, establishes instead that the UE,
to the knowledge of all persons involved, continued to
be the lawful representative of the employees in the unit.
Accordingly, the purported agreement, dated 27 June
19$5, was entered into by Respondent in flagrant viola-
tion of the Act and cannot justify Respondent's disregard
of the terms and conditions of the expired collective-bar-
gaining agreement.
The testimony of ,Caron and Knapp that they were
elected by the employees in the shop because the local
had no officers and somebody was needed to negotiate
with the Respondent when it appeared that the vacuum
bottle work might be brought back to Meriden ignores
the fact that Lambiase was contacted by them for the
very purpose of doing the negotiating. The sham nature
of the contention that Caron became the president of
Local 230 and Kenneth Knapp became its vice president
is apparent from the fact that their sale official action
consisted of signing the agreement and from the fact that
Knapp did not even accord himself the title, he asserted
only that he was elected as "acting vice president," a po-
sition not provided for in the constitution and bylaws of
the local. I do not credit Caron's testimony that he asked,
that the books and records of the local be turned over to
him. I credit Lambiase's testimony that Caron and
Knapp never said anything to him about having been
elected to office in the local and that the subject was
never mentioned in any of the negotiating sessions. It is
plain that Caron never insisted on receiving the records
or the Local's checkbook and bank statements . He never
filed statements required by law to be filed by union offi-
cials, while David Allen Smith, the duly elected incum-
bent, was continuing to file them. There was no installa-
tion of officers by any International representative as re-
quired by the constitution and bylaws, nor was any re-
quested, though it is clearly provided that the terms of
retiring officers do not expire until such installation, not-
withstanding the provision for 2-year terms.
They make no pretense of having complied with any
of the requirements of the constitution and bylaws of
Local 230 for the nomination and election of officers,
which are specific and explicit. The electoral procedures
set forth are not empty phrases, but reflect a serious,
65
well-defined intention on the part of the members to
avail themselves of the right to act collectively, which is
guaranteed to them in the Act. The preamble of the con-
stitution of Local 230 recites the necessity of the employ-
ees' uniting to protect themselves collectively and their
pledge "to labor unitedly" to accomplish their purposes,
and articles II and III provide that Local 230 shall be an
affiliate of the United Electrical, Radio & Machine
Workers of America, International Union and of its Dis-
trict Council No. 2. If Caron and Knapp were to be per-
mitted to execute the agreement with Respondent in pur-
suance solely of the interests of the few remaining active
employees, to the exclusion of the interests of other
members of the UE as a whole, the objectives of united
action would clearly be frustrated. There cannot be anar-
chy in the government of labor organizations. Lambiase
made precisely this point in conversations that he had
with Dibble in July 1985 and in the course of his testi-
mony, when he observed that the Union was charged
with the duty of protecting the interests of all of its
members, which required the preservation of the recall
rights of laid-off employees that are protected in the se-
niority provisions of the contract that had expired. Those
provisions were still effective in the negotiation period,
but,were eliminated in the Respondent's proposed con-
tract. Lambiase testified that during the negotiations,
Dibble never, discussed wages, or who would be re-
called, nor did he give any assurance that recalled em-
ployees would not suffer a cut in wages. The matter was
not academic; on the day Lambiase first spoke to the
unit, there were only three employees present in the
plant and two others working but not present that day,
while there were 100 employees on layoff status, of
whom 30 or 35 had worked in the bottle division.
The invalidity of the purported election of Caron and
Knapp is further made obvious by the fact that at the
time of the negotiations in June 1985, David Allen Smith
was still the duly elected president of Local 230 and
Robert Winnie was its financial secretary. Their terms as
officers had not yet expired. (The chief shop steward,
Frank Silva, was already out of office at the time of the
June negotiations, but no claim was made that anyone
had been elected to fill that position.) There cannot have
been, legally, two sets of officers in the local. Smith and
Winnie had complied with all the requirements of the
constitution and bylaws and were still serving their terms
of office. Smith had left Respondent's employment only
weeks before, but when called by Lambiase stated that if
there was something that he needed to do in connection
with the negotiations, he would attend.
Even had Caron and Knapp somehow become the
legal president and "acting vice president" of Local 230,
they would still have lacked authority to execute an
agreement with the Respondent. The constitution and
bylaws of Local 230 do not authorize the lodge officers
to negotiate and execute collective-bargaining agree-
ments without the participation of a UE representative.
There is no evidence in the record pertaining to UE
bylaw provisions concerning the negotiation of collec-
tive-bargaining agreements or the authority conferred on
local officials. However, there was an acknowledged
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
past practice in negotiations , whereby UE representa-
tives negotiated and executed the agreements . Lambiase
testified that negotiations for Local 230 were conducted
by its president , the chief steward , and staff personnel
from the International and that after an agreement had
been reached and had been ratified by the membership, it
was signed by the employee committee and the staff
member from the International . Moreover, the constitu-
tion and bylaws of Local 230 tell us what we need to
know by what is omitted from them. The duties of offi-
cers are spelled out in great detail, as are the duties of its
executive board , shop stewards, and standing commit-
tees, but no mention is made of negotiation of, or entry
into, collective-bargaining agreements with employers. In
the enumeration of standing committees , none are men-
tioned that appear to have contract negotiating functions.
There is a provision that any other committee deemed
necessary "for the facilitation of the business of the
Union" shall be appointed by the executive board from
among its own members , subject to the approval of the
general membership . The committee that signed the pur-
ported agreement of 27 June certainly did not have those
credentials.
In addition to their absolute lack of legal capacity to
function as representatives of the UE, Caron and Knapp
appear also to have executed the purported agreement in
disobedience of instructions from Lambiase . According
to Caron's own testimony, when Lambiase excused him-
self at the conclusion of the morning negotiating session
on Thursday , 27 June, he told Caron and Knapp "not to
go for that contract ." He directed them to negotiate fur-
ther. (This, of course, is Caron 's testimony . Lambiase ex-
pected to do the remaining negotiating himself.) Lam-
biase subsequently told Caron that the contract was in-
valid and asked him to retract his signature , and Caron
again disobeyed , refusing to do so on the ground that the
active employees wanted the agreement and did not feel
that Lambiase was representing their interests properly,
being too concerned with the effect of the new agree-
ment's provisions on the recall rights of laid-off workers.
Caron wanted Lambiase to sign the agreement on behalf
of the UE.
Any contention that there was apparent authority for
Caron and Knapp to act must also be rejected . Nothing
was done or said in the presence of any of Respondent's
personnel that can reasonably be interpreted as convey-
ing to them an impression that Caron and Knapp were
authorized to complete the negotiations and execute an
agreement in Lambiase's absence.
Actually, in the hearing itself, the argument for the ex-
istence of apparent authority was never actually articu-
lated by Respondent . Respondent 's counsel argued only
that an employer is not obligated to go behind appear-
ances to verify the authority of persons to negotiate for a
union . It is not necessary for the purposes of this deci-
sion to decide whether that broadly stated proposition
correctly states the law . In this case, it was neither stated
nor proved that any such "appearances" were created
and misled Respondent's personnel . There is no proof of
any representation to Respondent respecting the extent
of the authority claimed to have been vested in Caron
and Knapp . Yet that precise question had to have been in
the forefront of Dibble's considerations in the few hours
between Lambiase 's departure and 3 p.m ., when Lam-
biase telephoned him as he had promised.
The evidence all points to the absence of authority in
anyone to negotiate except Lambiase . The long history
of dealings between Parker and the Union was known to
Dibble. The printed agreement of 11 June 1981 recites at
the very beginning that it is entered into between Parker
"and the United Electrical , Radio and Machine Worker
of America , in behalf of and in conjunction with Local
230, United Electrical , Radio and Machine Workers of
America, hereinafter called the Union," and it was
signed not only by the officers of the local but by one
signatory designated as the "International Representa-
tive." The essential role of the International in the con-
tract negotiation process and its presence as a contractual
party were recognized.
On several occasions, Dibble himself asked Lambiase
to execute the purported agreement of 27 June . He sug-
gested it when Lambiase telephoned him on the after-
noon of 27 June to arrange a further meeting , and he re-
quested it in conferences with Lambiase on 2 and 3 July
at his office.
Although the employees who executed the agreement
did so under a rubric, "For the Union," no title is ap-
pended to the name of any employee who signed the
purported agreement , though the Respondent 's officers,
Dibble and Karpe, appended their corporate titles- Had
Caron and Knapp asserted any claim to office in the
local, the occasion of the execution of the agreement
would certainly have been the time to let the world
know about it. Their failure to do so discredits their
claim that they had authority to act on the Union's
behalf and is a further basis for fording that no , apparent
authority was paraded in front of Dibble.
An interesting point about the document executed on
27 June is that four employees signed it "For the
Union." Respondent made no attempt to explain the
source of the authority of the two employees , other than
Caron and Knapp , who signed it. They had not sat in on
either of the negotiating sessions attended by Lambiase,
and there is no evidence respecting their participation in
the negotiating session , if any, that was held in his ab-
sence. See Taft Broadcasting Co., above.
Dibble obviously was cognizant of the sharp diver-
gence of viewpoint between Caron and Knapp, on one
hand, and Lambiase on the other . The former spoke ex-
clusively for the few remaining employees in the shop,
while Lambiase spoke for the entire bargaining unit,
inside and outside of the shop . Quite aside from their
lack of authority to represent the unit and their disobedi-
ence of Lambiase 's directions, the situation of Caron and
Knapp placed them in a serious conflict of interest. Their
positions were inimical to the interests of the laid -off em-
ployees. Their obvious conflict of interest precluded any
appearance of apparent authority to speak for the whole
bargaining unit in the absence of the UE representative.
The Respondent concedes its knowledge of this split
by another argument that it advances in support of the
validity of the 27 June agreement, to the effect that the
employees had repudiated the Union and that the Union
CHARLES PARKER CO.
no longer represented a majority of the employees in the
bargaining unit. Respondent cannot have it both ways:
employees who have repudiated a union cannot have
either actual or apparent authority to speak on behalf of
the Union. Nevertheless, the Respondent contends that
the UE had ceased to represent 'a majority of the em-
ployees in the bargaining unit in the period after 'Re-
spondent served its notice of termination of the collec-
tive-bargaining agreement extension.
The UE enjoys a rebuttable presumption of continu-
ance of its majority representative status, which can be
overcome only by proof that a majority of employees no
longer wished to have it act as their collective-bargain-
ing agent or by proof,that Respondent doubted the ma-
jority status of the UE in good faith based on objective
considerations. The burden of rebutting the presumption
rests on Respondent. Stratford Visiting Nurses Assn., 264
NLRB 1026 (1982). And that burden is a heavy one.
Pennco, Inc., 250 NLRB 716, 717 (1980).
However, Respondent places its reliance on the fact
that a decertification petition was circulated among the
employees. That circumstance, by itself, is insufficient to
provide a reasonable ground for an employer to doubt
the majority status of a union; proof is still needed that
the petition is supported by a majority of the employees.
Dresser Industries, 264 NLRB 1088 (1982). In this case,
the evidence indicates that it did not have such support.
The petition in question was circulated on 5 February
1985 by, of all people, David Allen Smith, the incumbent
president of the local. There were then 12 or 13 persons
in the bargaining unit. Respondent 's counsel offered a
copy of the petition into evidence with the following ex-
planation:
As this witness's testimony indicates, that document
and his actions concerning that document are evi-
dence that the union on that date and thereafter no
[longer] enjoyed majority status, and thus this pros-
ecution is without merit.
That is not quite correct. The petition indicated that
on 5 February 1985 a number of employees, contended
that the Union no longer represented a majority, and
enough of them signed the petition to enable it to be
filed with the Board. The issue of whether a majority no
longer supported the Union was the issue to be deter-
mined . Obviously the mere filing did not mean that the
Union's representation was already ended. Subsequent
events make it clear that if the Union had lost its majori-
ty, it quickly recovered it, for the petition was with-
drawn. The reason for the withdrawal is significant.
Kenneth Knapp himself testified that the employees de-
cided to drop the matter on the advice of the Union. The
advice to which he referred was a point that Lambiase
had made to Smith when Smith advised him, in February
or March, that employees were considering the filing of
a petition. Lambiase explained to Smith that it was im-
portant for the employees to refrain from any action that
might upset the arrangements for severance pay that he
had negotiated (totaling $35,000 and due to begin in
June).
67
Smith ascribed the employees' action in signing the pe-
tition to the fact that they were upset about conditions in
general and its withdrawal to the fact that they began to
worry about their insurance and other rights. They
wanted to be sure the Union would represent them. The
petition was withdrawn voluntarily on unanimous con-
sent of the signatories.
I do not find, therefore, that the circumstances sur-
rounding the filing of the decertification petition, such as
have been proved, establish that the Union lost favor
among a majority of the unit to the extent that it no
longer represented them.
The Respondent, however, adduced a great deal of
testimony to the effect that the employees felt that the
Union was not representing their interests. Knapp and
Caron were called as witnesses to testify to the sharp di-
vision between the few employees still working and
Lambiase, who was trying to protect the people "on the
outside." Knapp testified that the employees still work-
ing came to feel that Lambiase's concerns were different
from theirs. They were concerned with maintaining their
pay rate, keeping their jobs, and bringing the bottle man-
ufacturing business back to Meriden. Lambiase was per-
ceived as being overly interested in the concerns of the
former employees, who were outside the plant. Though
under the Company's written proposals they could be re-
hired at any salary the company wanted, Knapp testified
that in talking about new hires, "people on the street,"
Dibble gave assurances that former employees who were
rehired would receive equal pay. Knapp asserted that
Dibble said this several times, but was evasive about
whether he ever said it in the presence of Lambiase. He
testified, at one point, that Dibble said it at the time the
contract was signed. That took place when Lambiase
was not present.
However, disagreement between the majority of a bar-
gaining unit and union officials who negotiate a contract
about whether it should be accepted is a far cry from a
decision by the majority that they no longer wish to be
represented at all by the Union. If that were the case,
then every refusal of the membership to ratify a negotiat-
ed contract would result in automatic decertification of
the Union, a patently absurd result. The degree of sup-
port or lack of support for a union's bargaining position
among the employees is not a proper concern of the em-
ployer. Obie Pacific Inc., 196 NLRB 458, 459 (1972). And
a bargaining representative is not to be considered de-
funct while it is willing and able to represent the em-
ployees. See Yates Industries, 264 NLRB 1237, 1249
(1982).
In any event, the evidence establishes that Respond-
ent's officers could not reasonably have believed that the
UE no longer represented the employees. The purported
agreement that they themselves prepared begins with a
declaration that it is a contract entered into between
Parker and Union Mfg., on the one hand, and the United
Electrical, Radio &, Machine Workers of America "in
behalf of and in conjunction with Local 230." According
to Caron, he was instructed to contact Lambiase by Re-
spondent. Two of the three negotiating sessions were at-
tended by Lambiase. Respondent's officers did not ques-
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion his right to be there; they negotiated with him. They
cannot even contend that the withdrawal of majority
support for the Union occurred between the time Lam-
biase left after the Thursday morning negotiating session
and the time the contract was signed, for the four em-
ployees who signed the agreement signed it "For the
Union."
It is apparent that the Respondent did not discover the
UE's lack of majority status until this proceeding was
commenced. It never suspected it when Lambiase, early
in June, procured issuance of the severance checks that
Respondent had failed to issue; when the contract it had
put in Caron's hands was turned over to Lambiase; when
Lambiase and Bruno showed up for the first negotiating
session; and when, after the second session , Lambiase
call to arrange a resumption of the discussions. Respond-
ent's failure to discern the Union's loss of its majority
seems to have persisted well into the postnegotiation
period, for, as has been noted, Dibble suggested that
Lambiase sign the purported agreement. He did more
than that, however: during conferences with Lambiase in
early July, he also suggested that the Union file a letter
disclaiming its right to represent the employees and, even
at that late date, invited Lambiase to submit a further
contract proposal.
The,evidence admits of no conclusion other than that
Respondent was aware that the employees were acting
through the UE, and the UE was the lawful bargaining
representative of the unit, notwithstanding the bitter dis-
agreement between the employees still working and
Lambiase about whether the Respondent's proposed con-
tract should be accepted.
Consequently, the contract that Respondent entered
into with four employees, and which Lambiase rejected,
refused to sign, and repudiated by letter dated 20 July
1985, was invalid and incapable of serving as a shield for
Respondent's unilateral changes in the employees' wages
and terms and conditions of employment. If Respondent
really thought it was proceeding under the contract, it
did so illegally and in violation of the Act.
Finally, it ought to be noted how Respondent's mis-
deeds in this situation interact with each other. Finding
as I do that Respondent failed to bargain in good faith
(see below) and unlawfully made unilateral changes in
wages and conditions of employment, Respondent is
thereby rendered ineligible to impugn the UP's majority
status. It is "tainted." See Abbey Medical/Abbey Rents,
Inc., 264 NLRB 969 (1982), enfd. 113' LRRM 3240 (9th
Cir. 1983)., '
In his posthearing brief, counsel for Respondent cites
KSD-AM Radio, 262 NLRB 687, 691 (1982), and Ameri-
can Express Reservations, 209 NLRB 1105, 1120, 1121
(1974), as authority for the proposition that knowledge
of an employees' decertification petition, by itself, consti-
tutes sufficient objective evidence to support a good-faith
doubt of a union's majority status. However, in those
cases, unlike the present case, there was an absence, ex-
pressly noted by the Board, of any context of illegal an-
tiunion activities. In Bennington Iron Works, 267 NLRB
1285, 1290 (1983), cited by counsel as a case in which the
employer was found to have had objective basis for
doubt concerning the Union' s status as a majority-sup-
ported representative , the employer was nevertheless
held in violation of the Act for making unilateral
changes because a decertification petition had had its in-
ception in a context of unfair labor practices and the em-
ployer 's conduct was found to have been associated with
the inception of the petition.
3. Failure to bargain in good faith as evidenced by
Respondent's overall conduct
Lambiase requested negotiations in January 1985, but
received no reply from Respondent. Instead, Respondent
presented a proposed contract to Caron 6 months later,
while making it clear that its course of retrenchment had
been checked only because the Mexican plant had been
destroyed and that the return of work to Meriden de-
pended at least partly on whether the Company could
speedily negotiate a favorable union contract. It turned
out, however, that very little was negotiable.
Dibble began the negotiating session with Lambiase
and Bruno by stating that Respondent needed a contract
by 10 a.m. Friday morning, 28 June, in order to make a
decision about whether to bring the bottle manufacturing
division back from Mexico. He then reviewed the Re-
spondent's contract proposal, which consisted of a severe
regression from the terms of the expired collective-bar-
gaining agreement, not simply in economic terms, but in
respect to matters that the Union regarded as affecting
its ability to properly represent the employees in the bar-
gaining unit.
The proposed contract began, in its recognition clause,
with a contraction of the bargaining unit, which was
now described in the following terms:
The company recognizes the Union as the sole and
exclusive bargaining agent with respect to the rates
of pay, wages and hours of employment for produc-
tion and maintenance employees of the Company
but excluding all other jobs such as shipping and re-
ceiving employees, set-up men, clerical employees,
Engineering Department employees, guards, fore-
men, sub-foremen, etc.
The duration of the contract was to be for a period of 10
years. The Union's right to notice of changes in work
schedules was made subject to the employer's conception
of what was practicable. Employees' advancement to
higher paying positions was at the discretion of the em-
ployer, without reference to seniority. The employer Was
given sole discretion to determine which employees to
recall from layoff and the order in which they would be
recalled, with seniority to be merely one factor in
making such decisions. The employer, in its sole discre-
tion, could elect to hire new employees to replace laid-
off employees. Though it was provided that accumula-
tion of seniority would begin 60 days after date of hiring,
it was also provided that the employer had the right to
extend the probationary period for another 60 days
"when it deems it necessary." Another provision stated,
"The pension plan will be set-up, changed, altered, re-
constructed, administered and in all ways acted upon at
the Company's discretion." In a section which curtailed
medical insurance benefits, it was provided:
LUARLES PARKER CO.
Notwithstanding any of the above, if the Company
in its sole discretion determines the above benefits
to be burdensome, the Company will discuss the
problem with the Union for 30 days at the end of
which time the Company may unilaterally make
whatever changes it desires.
Notice of layoffs was to be such " as is practicable."
The existing job classifications and incentive system were
eliminated and replaced with a job ranking system con-
sisting of five wage groups, designated "A" through
"E," with pay rate ranges set out for each, but contain-
ing no definition of the types of employees that would
fall into each of the five categories.
A grievance procedure was provided for in which the
third step consisted of arbitration by a committee consist-
ing of the president of the Company, the plant manager,
and an employee selected by the Company who is a
member of the Union. All decisions were to be by major-
ity vote of the committee, which would be final and
binding on the Union (and the Company). A deadline
missed at any step resulted in waiver of the grievance.
The Respondent gave away ice in the winter in a pro-
vision wherein it agreed to abide by Federal laws, such
as the Selective Training and Service Act of 1940 and
the Occupational Safety and Health Act, regarding
which it had no choice anyway, but reserved _for itself an
unabridged right to fire any employee, in the following
language:
The Company recognizes that employees have the
right to terminate the employment relationship at
any time and for any reason and the Company re-
serves the same right as well.
In a long clause reserving management's right to run
the company, rights were reserved to management
"without limitation" to direct and schedule the work
force; to hire, promote, transfer, lay off, and recall em-
ployees; to reprimand, suspend, discharge, or otherwise
discipline employees for cause; to determine the number
and duties of employees; to establish, modify, and abolish
job classification; to determine the size and composition
of the work force; to reorganize and discontinue depart-
ments and to introduce new work methods and facilities
with consequent reduction in work force.
There was a no-strike clause. In the event of an unau-
thorized work stoppage of any kind, the Union was ex-
pected to publicly disavow the employees' actions.
All unwritten past practices were abolished.
Bruno indicated a willingness Lo negotiate economic
terms, but told Dibble that that would not be done at the
price of self-respect, and that the UE was not interested
in a 10-year agreement or in the president of the Compa-
ny determining the merits of grievances. He suggested
that the Company identify critical areas that could be ne-
gotiated by Friday morning, but Dibble's response was
that everything was important.
While the Union was caucusing, Dibble left, giving the
labor representatives permission to remain to discuss the
agreement. They did so for another 40 minutes, and
drew up a counterproposal.
69
The meeting resumed the following morning at 8 a.m.
with the same people present except for Bruno, who had
returned to Boston. The Company was advised that the
UE would accept the wage rate ranges set out in the
Company's proposal for five labor grades, but had to
know what jobs would fit into each labor grade. To this,
Dibble responded that the Company had no idea what
jobs would be in the shop, and so he could not say what
would fit into each labor grade. Lambiase offered to
accept the wage proposal on the understanding that the
grades would be clarified before the contract was execut-
ed, so that even if that could not be done by Friday
morning,' the board would see progress in the negotia-
tions. Dibble merely responded that he absolutely needed
a signed contract on Friday morning. At that point,
Lambiase suggested extending the expired agreement
with substantial wage cuts and reductions in vacation
and insurance coverage. After the Respondent caucused
and returned with its own counterproposal, agreements
were reached respecting a number of matters such as
work schedule, holidays, holiday pay, bereavement, va-
cation, insurance, pay for coffeebreak and washup time.
The Company altered its position on a number of these
points. However, the only specifics furnished as to the
employee groupings was that maintenance people would
be in the "A" group, and the Company held fast to its
proposals for a 10-year agreement, the final resolution of
grievances by the Company president, and a number of
other noneconomic matters of a nature offensive to the
UE. The UE made a counterproposal wherein for the
first time in its relationship with Respondent it accepted
a management -rights clause and a nostrike clause.
It was at this point that Lambiase excused himself
from the negotiations . When he spoke with Caron on the
telephone later that day, Caron told him that the agree-
ment was for a 10-year term and contained changes that
had not been discussed in the meetings that Lanibiase
had attended; the labor categories had been filled in a
general fashion, the top of the salary range had been
raised, and the major medical deductible had been re-
duced. Lambiase saw the details only when he obtained
a copy of the signed contract on 2 July. The top salary
payable in labor grade E was increased over what he
had seen earlier by 25 cents an hour, grade D by $1 an,
hour, grade C by 75 cents an hour, grade B by $3.50 an
hour, and grade A by $4 an hour. Deductible for family
insurance was reduced from $300 to $200. A schedule
outlining the skill levels of the employees in the various
categories was also appended.
Lambiase had trouble getting a copy of the agreement
until 2 July, and Dibble admitted to him on 2 July that
the reason was because he had filed the instant unfair
labor practice charge. In a conference at which Annino,
Caron, and Knapp were present, Dibble asked Lambiase
if the Union was willing to sign the agreement. Lambiase
refused, pointing out that the Union could thereby open
itself up to a charge of unfair representation brought by
persons on layoff status. Dibble suggested that the Union
write a letter disclaiming interest in the shop so that the
employees could do what they pleased, whereupon Lam-
biase called his attention to the seniority rights of the 50
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or 60 persons with recall rights. Bottle manufacturing
employees were included in that group.
In a private meeting on 3 July, Dibble again suggested
that Lambiase sign the agreement or else a disclaimer of
interest in the shop. Dibble also commented that he was
going to have the agreement reviewed by an attorney to
see if it was binding. Lambiase refused to sign it, point-
ing out the UE's responsibility to employees on layoff
status, those with recall rights, retired employees, and
future hires. The extraordinary discretion given in nu-
merous important matters solely to the Employer made
the contract, in Lambiase's view, nothing more than an
agreement that the Union would not represent the em-
ployees for 10 years. Dibble indicated a willingness to
give consideration to a further UE proposal, but asserted
that he needed something quick, and that it had to be a
contract that, in Lambiase's view, gave him absolute
freedom to be fair' or unfair as he saw fit.
Lambiase testified that he contacted Dibble later to
test his sincerity about reaching an agreement and asked
Dibble candidly if he could live with the union shop. He
asserts that Dibble "said absolutely not," that he would
not reopen with a union shop.
The General Counsel has made the point that, in sug-
gesting that the Union disclaim the right to represent the
employees, Dibble, in his discussions with Lambiase,
never contended that the UE did not in fact represent
the employees. In the hearing, counsel for the Respond-
ent contended that Dibble had made that precise point
and that Lambiase conceded as much in an affidavit that
he furnished to a Board investigator in which he stated:
I explained to Dibble again what the Union's rea-
sons were for not signing the 10-year contract.
Dibble stated he understood that the Union was got
[sic] between a rock and a hard place. You're either
going to be in a position where you'd be in a failure
to represent those on layoff, or by those here.
You've got 4 active employees who want this
agreement here, and you won't sign it and represent
them. Dibble then said , "Why don't you or the
International just sign a letter saying you no longer
represent employees so they can do as they please."
I informed Dibble that we could not do that be-
cause of the people out on layoff, who had recall
rights.
I think a fair reading of the affidavit leads to the con-
clusion that Dibble suggested that Lambiase disclaim the
representation without making any assertion to Lambiase
that the UE did not represent the employees. I think he
conceded that it did. Lambiase went on record and sent
Dibble a letter on 10 July 1985 rejecting "the idea that
there is any new agreement between us." The document,
executed on 27 June, was stated to have been signed "by
four employees and the company, without negotiations
with the certified collective bargaining agent. . ." and
that it "is not binding on either the local nor the interna-
tional."
The economic terms sought by the Respondent might
not appear terribly unreasonable against the backdrop of
its recent history. An out-of-state operation, to which an
important segment of the business had been removed, for
economic reasons, had been destroyed. One of the con-
siderations on which the Respondent was basing its deci-
sion concerning whether or not to bring the operation
back to Connecticut was whether it could negotiate a
much more favorable collective-bargaining agreement
than the one that had expired. The employees who
signed the agreement did not think the terms too unrea-
sonable for acceptance when they weighed them against
the possible results of insistence on better terms-the loss
of their own jobs and the killing of all hopes for the po-
tential recall of those employees who had been laid off.
Neither did the Union. The Union acceded to the eco-
nomic demands made by Respondent. It was the noneco-
nomic terms that were unacceptable to it and that Re-
spondent was insisting on.
The provisions of the 10-year agreement, signed by
four of the employees on 27 June 1985,_ summarized
above, seem, in many particulars, almost calculated to
touch raw union nerves. They breathe an intense antiun-
ion animus . Unfettered discretion was given to manage-
ment in a number of important areas normally reserved
for negotiation between management and a union, and
the new proposal omitted important provisions of the ex-
pired agreement that had provided for seniority in lay-
offs and rehiring, consultation between the Respondent's
personnel manager and the local president , return to
work ' of all laid-off employees before new employees
were hired, a modified form of superseniority, notice in
the event of layoff and equal distribution of overtime
work.
Lambiase testified that agreement was reached on eco-
nomic terms, but the UE could not accept a 10-year con-
tract period, the failure to afford those on layoff status
their recall rights, the Company's reservation of the right
to discontinue insurance plans and to alter and terminate
the pension plan at will, the exclusion from the bargain-
ing unit of some jobs that formerly had been included,
the omission of union security and checkoff clauses, and
the loss of the seniority provisions. The vagueness of the
job classifications was also a problem, along with the res-
ervation to the Company of the right to determine, in its
sole discretion, the hourly rate of each employee and ab-
solute employment termination rights. He felt that the si-
multaneous inclusion of a no-strike clause and reservation
to the company president of the ultimate right to resolve
grievances in effect deprived the Union of an effective
remedy in the event of a contract violation. In his view,
the whole process of the negotiations was a sham.
The evidence convinces me that Lambiase was correct
in his assessment.
On cross-examination, Respondent's counsel pressed
Lambiase on the question of whether he had analyzed
the financial impact on the Company of the ultimate ac-
ceptance in the signed agreement of the 16 or so out-
standing items to which he had refused to agree. That
does not, by itself, establish these matters as contractual
economic items. If there was an economic basis for ad-
vancing them, it was a point that would have had to
have been established by testimony from an officer of the
Respondent. Lambiase testified that nothing was ever
CHARLES PARKER CO.
said to him about an economic justification for any of the
terms to which he had objected as matters of union self-
respect. In any event, financial hardship does not relieve
an employer of the obligation to bargain in good faith.
Excelsior Pet Products, 276 NLRB 759 (1985).
The various aspects of Respondent's misconduct, are
all within the scope of well-established precedents de-
claring such conduct to be in violation of the Act, begin-
ning right at the outset with Respondent's arbitrary
scheduling of the meetings and refusal to wait for Lam-
biase to adjust his schedule. Moore Drop Forging Co., 144
NLRB 165 (1963). The contract proposal put forward by
Respondent contained terms that Respondent's officers
and board of directors must have realized were unac-
ceptable to-any union that valued its self-respect and rep-
utation in the labor field. Parties to negotiations are re-
quired to "approach the bargaining table with an open
mind and purpose to reach an agreement consistent with
the respective rights of the parties." L.L. Majure Trans-
port Co. v. NLRB, 198 F.2d 735, 739 (5th Cir. 1952). A
party's conduct must evidence a real desire to come to
agreement. NLRB v. Insurance Workers (Prudential Insur-
ance)', 361 U.S. 477, 498 (1960). The presentation of pro-
posals, which are an affront to a "self-respecting union,"
do not manifest such an intent and are indicative of bad-
faith bargaining. NLRB v. Reed & Prince Mfg., Co., 205
F.2d 131, 139 (1st Cir. 1953), cert. denied 346 U.S. 887
(1953). Respondent's insistence on exclusive control over
wages and other important terms of employment, in
effect requiring relinquishment by the UE of rights guar-
anteed by the Act, falls into this category. S-B Mfg. Co.,
270 NLRB 485, 495, 496 (1984).
Respondent 's conduct, violative of the Act, patently
included adherence to unreasonable demands, NLRB v.
Holmes Tuttle Broadway Ford, 465 F.2d 717 (9th Cir.
1972); "unyielding rigidity" with respect to such de-
mands; Borg-Warner Controls, 198 NLRB 726, 730 (1972);
efforts to bypass the Union, Cal Pacific Poultry, 163
NLRB 716 (1967); and unilateral changes in terms and
conditions of employment.
Respondent's submission of its contract proposal di-
rectly to the employees, after ignoring a union invitation
to negotiate; the fait accompli in obtaining execution of
an agreement in the absence of Lambiase , the Interna-
tional negotiator; the inclusion in the Respondent's final
contract proposal of terms not offered to Lambiase; the
harshness of the contract terms insisted on by the Re-
spondent; the Respondent's unyielding and, uncompro-
mising stance in the negotiations ; Respondent 's insistence
on great speed and on the absolute necessity of a con-
tract favorable to Respondent; the emphasis placed by
Respondent on the connection between a quick, favor-
able agreement and the continuance of employment; and
the implementation by Respondent of the terms and con-
ditions of the agreement arrived at in this unlawful
manner with the employees directly-are all factors that
must be considered together and, when so considered,
lead me to the conclusion that the Respondent did not
bargain in good faith with the Union and thereby violat-
ed Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
71
1. The Charles Parker Co., Inc., and Union Manufac-
turing Co., Inc., referred to collectively as the Respond-
ent were, at all pertinent times, employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The UE is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Charles Parker Co., Inc., and Union Manufac-
turing Co., Inc., are, and at all material times have been,
affiliated business enterprises that formulated and admin-
istered a common labor policy affecting employees of
both concerns.
4. The UE, at all pertinent times, was and continues to
be the exclusive representative for the purposes of col-
lective bargaining within the meaning of the Act of Re-
spondents' employees in bargaining units defined identi-
cally in the case of each company as follows:
All production and maintenance employees, includ-
ing shipping and receiving employees, and set-up
men, employed by the Company at its Meriden,
Connecticut facility, but excluding clerical employ-
ees, engineering department employees, guards,
foremen, subforemen, and any other supervisory
employees with authority to hire, promote, dis-
charge, discipline or otherwise effect changes in the
status of employees or effectively recommend such
action.
5. The Charles Parker Co., Inc. and Union Manufac-
turing Co. have failed and refused to bargain collectively
and in good faith with the UE, and have engaged in
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act:
(a) By their overall acts and conduct.
(b) By submitting contract proposals directly to unit
employees prior to their submission to the Union.
(c) By negotiating wage increases and other terms and
conditions of employment directly with individual unit
employees and soliciting those employees to sign a col-
lective-bargaining agreement.
(d) By implementing changes in wages, hours, and
working conditions of employees in the units, without af-
fording the UE an opportunity to negotiate and bargain
as the exclusive representative of their employees with
respect to such changes.
(e) By falling to bargain in good faith.
6. The above are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
An egregious violation of the Act has occurred in this
case. The Respondent deliberately chose to ignore a
union that it well knew represented a majority of the em-
ployees remaining at its Meriden facility; submitted a
contract proposal directly to the employees ; and, after
the employees brought in the International field repre-
sentative to negotiate for them, waited for a suitable op-
portunity to induce the employees to sign a collective-
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreement in the absence of the field repre-
sentative. The contract proposal thus purportedly adopt-
ed was of such a nature that Respondent had to have
known that, in the form in which it then existed, it could
never be agreed to by the UE.
The Respondent is not presently operating in Meriden,
Connecticut. It is impossible to say, of course, what the
future will bring, but these proceedings were vigorously
contested, which suggests that the possibility of Re-
spondent's reappearance on the local scene remains alive.
The General Counsel wants to be ready if and when that
occurs. For this purpose, a remedial Order will suffice
requiring the Respondent corporations to bargain with
the Union in the event that they decide to resume manu-
facturing operations, and that they mail a notice to all of
their employees, at their last-known addresses, advising
the employees of the instant decision and the measures
directed to be taken or desisted from. Such a proposal is
well suited to the exigencies of this case, and I have
made recommendations in line with that request.
In the posthearing brief, the General Counsel also sug-
gests a limited backpay remedy, arguing that Respond-
ent's employees were denied the opportunity to bargain
through their contractual representative at a time when
such bargaining "would have been meaningful and, if en-
gaged in in good faith, could have resulted in continued
and expected employment opportunities." He cites Trans-
marine Corp., 170 NLRB 389 (1968), which I fmd to be
inapplicable in the circumstances of the present case. The
only basis that I can think of (none are cited by the Gen-
eral Counsel) for the assumption that there would have
been "continued or expected employment opportunities"
would be the fact that Lambiase agreed to Respondent's
economic proposals, which Respondent said it needed in
order to bring the bottle business back. However, there
is no evidence that that concession would, by itself,
cause the return of the operation to Meriden. All Re-
spondent said was that the return would be impossible
without a contract that management regarded as viable.
Certainly other business considerations must also have
been involved. There is no evidence as to what those
were. The evidence does make it apparent that the ex-
citement of the employees over these prospects was not
shared by management. The take-it-or-leave-it attitude
exhibited by Dibble in the contract negotiations rein-
forces my impression that the actual prospects for the
return of the business were not at all great and that man-
agement's attitude was that if it could not even get the
kind of union contract it wanted, there was no point in
making any extraordinary efforts to bring the operation
back. In fact, as of the time of the hearing, it had not
been resumed in Connecticut. It should be recalled, in
this connection, that in 1983 all departments of Respond-
ent's business were in retrenchment, and its building was
for sale. There do not appear to have been any over-
whelming inducements to bring the bottle operation back
to Connecticut, and the extent of its operations in such
case is problematical.
Rather than get mired down, in the compliance phases
of this proceeding, in speculation about what might have
occurred, I find that the purposes of the Act will be
more effectively achieved by compelling Respondent, if
and when it ever brings the operation back to Connecti-
cut, to bargain with the UE as the collective-bargaining
representative of the employees in the unit, and to let the
employees know that that is what it is required to do.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondents, The Charles Parker Company, Inc.
and Union Manufacturing Co., Inc., Meriden, Connecti-
cut, their officers, agents, successors, and assigns,'shall
1. Cease and desist from
(a) Refusing to meet and bargain collectively with and
recognize United Electrical, Radio and Machine Work-
ers of America, and its Local 230, as the exclusive col-
lective-bargaining representative of their employees in
the collective-bargaining units existent in each company
described as follows:
All production and maintenance employees, includ-
ing shipping and receiving employees, and set-up
men, employed by the Company at its Meriden,
Connecticut facility, but excluding clerical employ-
ees, engineering department employees, guards,
foremen, subforemen, and any other supervisory
employees with authority to hire, promote, dis-
charge, discipline or otherwise effect changes in the
status of employees or effectively recommend such
action.
(b) Failing and refusing to comply with all subsisting
obligations under the collective-bargaining agreement be-
tween the Respondents and the Union dated 11 June
1981 as extended by subsequent agreements to 11 June
1984.
(c) Submitting contract proposals to, negotiating, or
otherwise dealing with employees directly in order to
bypass the Union.
(d) Implementing any of the terms or conditions of a
purported agreement, entered into between the Respond-
ents and employees, dated 27 June 1985.
(e) 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 and in good faith
with United Electrical, Radio and Machine Workers of
America as the exclusive bargaining representative of all
employees employed in the bargaining units with respect
to wages, hours, and other terms and conditions of em-
ployment of the employees in the bargaining units or, if
Respondents have effectively terminated their business or
are in the process of doing so, with respect to the effects
on the employees of the termination of operations, or, if
2 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.
CHARLES PARKER CO.
Respondents are having the work of the bargaining units
performed elsewhere than in Meriden, Connecticut,
whether by reason of subcontracting , maintenance of a
facility elsewhere , or otherwise , with respect to the ef -
fects on the employees of the removal of such work
from Meriden , Connecticut, and reduce to writing any
agreement reached as a result of such bargaining.
(b) Comply with subsisting obligations under the col-
lective-bargaining agreement entered into between Re-
spondents and the Union , dated 11 June 1981 and ex-
tended to 11 June 1984, as modified to the date of such
extended term, and continue such compliance as circum-
stances may require until such time as Respondents nego-
tiate in good faith to a new agreement or to an impasse.
(c) Mail to the last known addresses of the former em-
ployees who had been members of the above -described
bargaining units copies of the attached notice marked
73
"Appendix."s copies of the notice , on forms provided by
the officer in charge for subregion 39 shall , after being
signed by an authorized representative of Respondents,
be mailed immediately to the employees and posted at a
location in Respondents ' offices in Plantsville , Connecti-
cut, where notices to employees are customarily posted,
and shall be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notice to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered , defaced , or covered by
any other material.
(f) Notify the officer , in charge for Subregion 39 /m
writing within 20 days from the date of this Order what
steps Respondents have taken to comply.
' 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."