Underwriters Adjusting Co.

National Labor Relations Board - Board Decisions

Oct 29, 1974

214 N.L.R.B. 388 (N.L.R.B. 1974)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Underwriters Adjusting Company and Teamsters Lo-
cal No. 1 (American Communications Association)
a/w International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America.
Case 22-CA-5758
October 29, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 21, 1974, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
This Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order.
Because the instant case is both an outgrowth and
a continuation of prior unfair labor practices com-
mitted by this Respondent against the same Union, a
brief history of the tortured relations between these
parties is useful. On March 6, 1968, the Union was
certified in separate units as the bargaining repre-
sentative of Respondent's claims adjusters, examin-
ers, and investigators employed at Respondent's
New York City and Newark, New Jersey, branches.
On the following day, Respondent refused the
Union's request to bargain collectively with it. Un-
fair labor practice charges were subsequently filed by
the Union, a complaint was issued on June 26, 1968,
and the Board handed down a Decision and Order in
which it found that Respondent had engaged in un-
fair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.' The Board's Order re-
quired Respondent to bargain in good faith with the
Union. On April 15, 1969, the United States Court of
Appeals for the Second Circuit enforced the Board's
Order.2 Thereafter, Respondent filed a petition for
certiorari, which was denied on November 10, 1969.'
Following the denial of Respondent's petition for
certiorari, the Union renewed its request to bargain
with Respondent and negotiations began on Decem-
i Continental Insurance Company, 172 NLRB 406 (1968)
2 Continental Insurance Company v N L R B, 409 F 2d 727
3 Continental Insurance Company v N L R B, 396 U S 902
ber 5, 1969. However, some 27 bargaining sessions
later, plus 4 meetings in which the parties discussed
bargaining grievances, the parties again found them-
selves locked in litigation before this Board. Thus, on
June 9, 1970, the Union filed charges against Re-
spondent alleging that Respondent was not bargain-
ing in good faith. A complaint issued and, on July 11,
1973, the Board affirmed, in toto, the carefully docu-
mented decision of Administrative Law Judge Her-
bert Silberman, finding that Respondent had en-
gaged in bad-faith bargaining within the meaning of
Section 8(a)(5) and (1) of the Act.4 In so doing, the
Board relied on the entire scope of Respondent's bar-
gaining conduct, which included, inter alia, (1) uni-
laterally transferring employees out of the Newark
bargaining unit to its newly created Hackensack,
New Jersey, office; (2) taking unreasonable and arbi-
trary positions throughout the negotiations; (3) refus-
ing to include age, sex and union activities in its no-
discrimination clause; (4) insisting on contract pro-
posals that offered less benefits than those the em-
ployees currently enjoyed; and (5) generally making
proposals that had the net effect of degrading the
Union before its members and undermining the
Union's efforts to reach a fair collective-bargaining
agreement. Among these proposals, the Administra-
tive Law Judge singled out for special criticism, inter
a/ia, the Company's vacation, holiday, discharge,
company car, health, welfare, and retirement propos-
als. The Board again ordered that Respondent bar-
gain with the Union in good faith upon the Union's
request. Subsequent to the Administrative Law
Judge's Decision in that case the parties resumed
their negotiations in connection with the New York-
Newark units and Respondent did modify some of
its contract proposals. On April 9, 1974, the Circuit
Court of Appeals for the Second Circuit granted en-
forcement of the Board's Order,' noting that there
was ample evidence to support the Board's findings.
This brings us to the instant case. As indicated su-
pra, at least some of the employees in the Hacken-
sack branch were originally members of the Newark
bargaining unit who were unilaterally transferred by
the Company to Hackensack without first consulting
with the Union. In this regard, it is worth noting that,
when confronted by the Union about the unilateral
Continental Insurance Company and Underwriters Adjusting Company,
204 NLRB 1013
Chairman Miller concurred in part and dissented in part He Joined the
Board in its conclusion that Respondent had violated Sec 8 (a)(5) and (1) of
the Act by failing to notify the Union in advance of Respondent's intent to
transfer employees from one of the units to a new office in Hackensack,
New Jersey (the office here in question), and by unilaterally establishing
overtime rates for the work of packing and shipping its files to the new
Hackensack office Otherwise he dissented from the 8 (a)(5) violations found
by his colleagues
5 Continental Insurance Company v N L R B, 495 F 2d 44
214 NLRB No. 58
UNDERWRITERS ADJUSTING CO. 389
transfer of these employees, Respondent emphatical-
ly contended that it would not recognize the Union
as the collective-bargaining representative of the em-
ployees at the Hackensack branch unless the Union
obtained the Board's certification. The Union there-
after filed a petition and, on May 31, 1973, it was
certified by the Board as the collective-bargaining
representative in a unit of claims adjustors, claims
examiners , and claims representatives employed by
Respondent at its Hackensack office.
The parties held two collective-bargaining sessions
in connection with the Hackensack unit-on July 23
and November 30, 1973. Prior to their first meeting,
the Union submitted to the Company a contract pro-
posal which, except for a few minor changes and an
increase in its wage demand, was identical to the
original proposal it had made to the Company in
1969 in connection with the New York-Newark ne-
gotiations. At their first meeting, by way of counter-
proposal, Respondent offered the final contract pro-
posal which it had made in the New York-Newark
negotiations. Unlike that offer, however, Respondent
failed to make a wage proposal. During this meeting,
the parties went over the Union's proposal, but no
progress was made toward agreement.
At the November 30 bargaining session, Respon-
dent again insisted upon its last New York-Newark
contract, but it indicated that it would consider its
wage position and would be prepared to make a
wage proposal. This it never did. The Union, in turn,
indicated that it was willing to accept all of the
Respondent's proposals on fringe benefits, as it had
ultimately done in the New York-Newark negotia-
tions, but it insisted on mandatory arbitration of
grievances, layoffs in reverse order of seniority, over-
time on a daily and weekly basis, an improvement in
the Company's overly broad management rights
clause, and a "decent" wage increase. Respondent,
on the other hand, remained adamant and made no
concessions.' The meeting broke off without an
agreement being reached.
Subsequent to the November 30 meeting, William
Bender, the Union's chief negotiator, consulted with
the unit employees regarding Respondent's request
that the Union reconsider its position in the areas
that were keeping the parties apart. In early January
1974, Bender telephoned Frederick Shea, one of the
Company's negotiators, as well as one of its attor-
neys, and informed him that the Union did not wish
to change its position. Shea responded that, in light
of the Union's position, a discussion with respect to
6 At this meeting, Respondent did submit two proposals-one a bulletin
board proposal and the other a visitation rights proposal However, Respon-
dent had already made these proposals at the New York-Newark negotia-
tions and they had been found objectionable to the Union
wages would not present an opportunity to resolve
the impasse between the parties. Bender answered
that this depended on what wage proposals Respon-
dent was willing to make. Shea indicated that the
Company's wage proposal would not be substantially
different from what the Company had offered in
their New York-Newark negotiations and that he
saw no sense in continuing to meet further unless the
Union modified its position. Bender insisted, asking
"are you going to make a wage proposal?" Shea re-
sponded, "There is no sense in doing it at the present
time." The parties then agreed that Shea would send
Bender a letter, apparently to formalize the
Company's position. Subsequently, Shea sent Bender
that letter, dated January 15, 1974, expressing the
Company's willingness to resume negotiations but in-
dicating that "the Company had not changed its po-
sition on the same contractual issues. . . .[and] I do
not believe any useful purpose would be served by
such a meeting, even though the Company has not
yet made a wage proposal at Hackensack." After re-
ceiving Shea's letter, the Union made no further ef-
forts to meet with the Company and, instead, filed
the unfair labor practice charges presently before the
Board.
The foregoing amply demonstrates that the instant
case is, in essence, nothing more than another epi-
sode in the evolving bargaining saga between these
two parties. It is evident that, although the battle
ground has shifted to Hackensack, the participants
are the same and their respective bargaining posi-
tions remain substantially as they were in the New
York-Newark negotiations. Therefore, in dealing
with the instant case it is important that we remain
cognizant of what the court of appeals had to say
with respect to Respondent's bargaining tactics in
the case involving these parties in connection with
the New York-Newark negotiations. In granting en-
forcement of the Board's Order in the prior case, the
court found ample evidence in the record to support
the Board's finding that Respondent had engaged in
bad-faith bargaining. In fact, the court found it un-
necessary to analyze in detail each aspect of the
Company's offensive conduct on which the Board re-
lied to establish Respondent's overall bad faith.
However, the court did consider some of the more
salient examples of the Company's insincerity and
concluded,
Viewed in its entirety the record reveals that the
Company pursued a pattern of tactics designed
to delay the negotiations as long as possible, to
denigrate and undermine the Union, to make it
impossible for the Union to reach a collective
bargaining agreement without virtually surren-
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dering its right to represent the employees in dis-
putes over working conditions, and to make it
appear to the employees that they would be
worse off with Union representation and a col-
lective bargaining agreement than if they had
neither [495 F.2d at 481.
As the foregoing aptly describes Respondent's con-
duct here, despite the absence of unlawful unilateral
action, we rely on the opinion of the court of appeals
in the prior case in assessing Respondent's conduct
here.
In its brief, Respondent makes much of the argu-
ment that the Company's overall conduct in the
Hackensack negotiations, including its pattern of
bargaining and its modified proposals, changed radi-
cally from the totality of the circumstances which led
the Administrative Law Judge, the Board, and the
court of appeals to find that Respondent had en-
gaged in bad-faith bargaining at their New York-
Newark negotiations. We disagree. And, while we do
not fully subscribe to the Administrative Law Judge's
characterization of the Company's negotiating prac-
tices here as nothing more than a "mirror's image" of
its practices at the New York-Newark negotiations,
we do find that the Company's later proposal did not
significantly modify the New York-Newark propos-
als which the Board and the court of appeals relied
on as evidence of the Company's insincerity in its
dealing with the Union. To be sure, the Company did
make some modifications in its contract proposals
after the Administrative Law Judge's Decision issued
in the latest New York-Newark litigation. However,
whether the modifications that Respondent did make
were minor, as described by the Administrative Law
Judge here, or whether they were substantial, as Re-
spondent contends, they were too few and, in our
opinion, failed to cure the criticisms that the court of
appeals made of Respondent's whole package pro-
posal. Stripped of their lengthy and confusing redac-
tion, the essentials of Respondent's proposals retain,
as in the prior case, a calculated design to denigrate
the Union before its members, to undermine the
Union's efforts to reach a meaningful collective-bar-
gaining agreement by requiring it virtually to waive
its statutory right to bargain over matters falling
within the scope of the employees' working condi-
tions, and to create among the employees the appear-
ance that they would be better off if no contract were
signed. Such is the effect of the Company's health,
welfare, and retirement proposal, its vacation pro-
posal, its holiday proposal, its management rights
proposal, its no-discrimination proposal, and its
company car proposal, all of which remained sub-
stantially or completely unchanged despite the Ad-
ministrative Law Judge's criticisms in the prior case
and the court's total enforcement of the Board's Or-
der therein.
Another example of Respondent's evasive negoti-
ating tactics from which bad faith can be discerned is
found in its grievance, arbitration, and no-strike pro-
posals. In its brief, the Company points out that, sub-
sequent to the issuance of the Administrative Law
Judge's Decision in the case involving the New York-
Newark units, Respondent modified these proposals
by eliminating any restrictions on the Union's right
to strike over grievances that the Company refused to
arbitrate. However, Respondent left unchanged the
Company's proposal defining "a grievance," which
limits the Union's right to strike to a handful of in-
substantial matters of dispute. According to the
Company's contract proposal, the term "grievance"
means, "Any alleged violation by the Company of
the clear and unambiguous terms of the language ex-
plicitly set forth in this. . . ." In criticizing this pro-
posal, the court of appeals stated,
Acceptance by the Union of the Company's
proposal would have constituted a waiver of any
right to process a grievance or strike arising out
of any matter not specifically covered in the
Agreement and, at the time it made this propos-
al, the Company was insisting on including only
a limited number of subjects in the contract.
[495 F.2d at 49.]
By insisting on the same definition of the word
"grievance," Respondent in fact disregarded the crux
of the court's criticism, which went to the total effect
of that portion of the Company's proposal. The criti-
cism of the court remains apposite in the instant case
because the net effect of Respondent's "modified"
proposals is still to require the Union to surrender its
statutory right to represent employees over matters
that clearly fall within the scope of their employment
conditions and, as in the prior case, the Company
still insists on including only a limited number of
subjects in the contract. Respondent's cosmetic mod-
ifications of a contract proposal that had already
come under direct fire by the court of appeals is,
therefore, further evidence of an insincere pattern of
bargaining practice designed to destroy the Union.
Another company proposal that remained sub-
stantially unchanged despite the court's criticisms
was its vacation proposal. In this respect the court
stated,
. . . with respect to vacations the Company's
sole representative for some time took the ex-
traordinary position that vacations were not an
UNDERWRITERS ADJUSTING CO.
earned right but were provided to enable em-
ployees to do a better job for the Company. He
then proposed stringent eligibility requirements
that disregarded existing practices permitting
employees to select their vacations on the basis
of seniority. [495 F.2d at 49.]
Respondent's insistence on the almost identical vaca-
tion proposal fits perfectly with the rest of its poorly
concealed scheme to undermine and denigrate the
Union by thwarting the Union's every effort to reach
a meaningful collective-bargaining agreement.
It would serve no useful purpose to repeat and an-
alyze, one by one, the Company's contract proposals
that have remained unchanged despite the criticisms
of the Board and the court in the prior case. To do so
would only be duplicative of what has already been
said. Respondent's attempts to take refuge in the fact
that the Union accepted all of the Company's con-
tract proposals except for those mandatory subjects
of bargaining over which the parties reached an im-
passe are to no avail. We do not understand how the
Union's attempt to reach a collective-bargaining
agreement, albeit at the expense of accepting highly
disadvantageous company proposals, can be credited
to Respondent's asserted good-faith bargaining. We
are equally at a loss trying to understand how Re-
spondent, in good faith, expected the Union to re-
sume negotiations after Shea's letter of January 15
refusing to make a wage proposal had, in effect, for-
mally foreclosed any hope of the parties reaching an
agreement. Indeed, it is clear that the Union was
willing to make even more compromises if the Com-
pany would make a "decent" wage proposal.
Based on the foregoing, we are satisfied that Re-
spondent bargained in bad faith with no intention of
ever reaching an agreement with the Union, except,
perhaps, on terms that rendered the Union impotent
to represent the employees, thereby belittling the
Union and its efforts in the eyes of those it was trying
effectively to represent.
We cannot judge this case in a vacuum, as Respon-
dent would like us to do. The Respondent's history
of bad-faith bargaining with this very Union, its in-
sistence on substantially the same proposals which
the Administrative Law Judge, the Board, and the
court of appeals found to evidence Respondent's
lack of good-faith bargaining, and its failure to make
any wage proposal in the instant case provide ample
grounds for affirming the Administrative Law
Judge's conclusions that Respondent has again disre-
garded the requirements of Section 8(a)(5) and 8(d)
of the Act.'
ORDER
391
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Underwriters Adjusting
Company, Hackensack, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
r Chairman Miller, who dissented from such a finding in the prior case
involving these parties , joins in this finding and conclusion because he con-
siders the decision of the court of appeals in the prior matter to be control-
ling on each of the issues wherein it is relied on in this opinion
DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Administrative Law Judge: The issue
in this case is did Respondent refuse to bargain in good
faith with the collective-bargaining agent of its employees
within the meaning of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, herein called the Act (29 U.S.
C. Sec. 151, et seq ). The parties did meet and discuss con-
tract terms but the issue is whether Respondent was acting
in good faith for the purpose of arriving at a contract con-
taining terms relating to wages, hours, and terms and con-
ditions of employment for its employees in Hackensack,
New Jersey.
For the reasons hereinafter set forth, I find the General
Counsel has established by a preponderance of the evi-
dence that Respondent was not bargaining in good faith in
violation of Section 8(a)(1) and (5) of the Act.
Teamsters, Local 1 (American Communications Associ-
ation) a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein
called the Union, filed charges against the Underwriters
Adjusting Company, herein called the Respondent, on Jan-
uary 21, 1974. These charges resulted in a Complaint and
Notice of Hearing being issued March 7, 1974, by the Re-
gional Director of Region 22 of the Board alleging viola-
tions of Section 8(a)(1) and (5) of the Act.
Respondent denied the essential allegations that it vio-
lated the Act.
With the General Counsel and Respondent being repre-
sented by counsel and the Union by its secretary-treasurer,
the case was tried before me in Newark, New Jersey, on
April 23, 24, 29, and 30, 1974. The parties were given full
opportunity to present evidence and examine and cross-
examine witnesses. Counsel for General Counsel and coun-
sel for Respondent filed timely briefs on June 4, 1974.
Upon the entire record including my observations of the
demeanor of the witnesses, and after due consideration of
the briefs filed, I make the following:
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. JURISDICTION
(a) Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Illinois.
(b) At all times material herein, Respondent has main-
tained its principal office and place of business at 244
South Wacker Drive, Chicago, Illinois, and various other
offices and places of business in the States of the United
States, including an office at 33 Hudson Street, Hacken-
sack, New Jersey, herein called the Hackensack office, and
is now, and at all times material herein has been continu-
ously, engaged at said offices and places of business in the
business of providing and performing insurance adjusting
services and related services. Respondent's Hackensack of-
fice is its only facility involved in this proceeding.
(c) In the course and conduct of Respondent's business
operations during the calendar year 1973, said operations
being representative of its operations at all times material
herein, Respondent derived revenues in excess of $50,000
for services rendered directly for concerns located outside
the State of New Jersey.
(d) I find Respondent is, and has been at all times mate-
rial herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
(e) I find Local I is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
All claims adjusters, claims examiners, and claims repre-
sentatives employed by Respondent at Respondent's
Hackensack office, but excluding all office clerical employ-
ees, professional employees, guards, supervising adjusters
and all other supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
On or about May 24, 1973, a majority of the employees
of Respondent, in the unit described above, by a secret
ballot election conducted under the supervision of the Re-
gional Director for Region 22 of the Board, designated and
selected Local I as their exclusive representative for the
purposes of collective bargaining with Respondent, and on
or about May 31, 1973, said Regional Director certified
that Local 1 was the exclusive collective-bargaining repre-
sentative of the employees in said unit.
At all times since on or about May 31, 1973, Local 1 has
been and is now the exclusive representative of the employ-
ees in the unit described above for the purposes of collec-
tive bargaining and, by virtue of Section 9(a) of the Act,
has been and is now the exclusive representative of all the
employees in said unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
B Prior Bargaining Relationship
On March 6, 1968, the Union was certified to represent
Respondent's claim adjustors, examiners, and investigators
in the New York City office and in the Newark office.' The
following day, the Union requested the Respondent to bar-
gain collectively with it, but the request was refused. Un-
fair labor practice charges were filed by the Union and a
complaint thereon was issued on June 16, 1968. The Board
issued its Decision, reported at 172 NLRB 406 (1968), find-
ing that the Respondent was engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act. The Board ordered the Respondent to bargain collec-
tively with the Union upon request. The Respondent there-
after filed a petition to review the Board's Order. On April
15, 1969, the court of appeals handed down its Decision,
reported at 409 F.2d 727 (C.A. 2) granting the Board's peti-
tion for enforcement and denying the Employer's petition
for review. Respondent thereafter filed a petition for certi-
orari which was denied on November 10, 1969, 396 U.S.
902.
Following the denial of the petition for certiorari, the
Union again requested the Respondent to bargain collec-
tively with it. Negotiations began on December 5, 1969.
There were a total of 27 collective-bargaining sessions. As
it appeared to the Union that the Company was not bar-
gaining in good faith, the Union on June 9, 1970, again
filed charges against the Respondent, alleging that the Re-
spondent was not bargaining in good faith. A complaint
issued on those charges, and on December 13, 1972, the
Administrative Law Judge issued his Decision, finding that
the Employer had bargained in bad faith. On July 11, 1973,
the Board 2 affirmed the Judge's Decision, finding that the
Employer had bargained in bad faith in violation of Sec-
tion 8(a)(1) and (5) of the Act. On April 9, 1974, the U.S.
Court of Appeals for the Second Circuit granted the
Board's petition for enforcement (495 F.2d 44).
C. This Case
Turning now to the instant case, the Union, as noted
above, was certified on May 31, 1973, as the collective-
bargaining representative for the Respondent's claims ad-
justors, claims examiners, and claims representatives em-
ployed at the Respondent's Hackensack, New Jersey, of-
fice. Thereafter, the Union requested that the Respondent
bargain with it concerning these employees The parties
met on July 23, 1973. At this session, the Respondent's
chief negotiator was the same person who represented the
Respondent at the New York-Newark negotiations. The
Union had submitted proposals to the Respondent before
the July 23 meeting. At the July 23 meeting, the Respon-
dent informed the Union that it was offereing the Union
the same proposals, with certain minor concessions,3 it had
'Hereinafter, the negotiations relating to the New York unit and the
Newark unit will be referred to as New York-Newark negotiations
z 204 NLRB 1013
3 Some of the proposals made in the New York-Newark negotiations were
relied on by the Administrative Law Judge in 204 NLRB 1013 as evidence
of the Respondent's bad-faith bargaining It is true that after the Adminis-
trative Law Judge's Decision in that case the parties met again and the
UNDERWRITERS ADJUSTING CO.
made to the Union during the New York-Newark negotia-
tions.
According to the decision of the Administrative Law
Judge in 204 NLRB 1013 and the position of the Union in
the instant case, the Union consistently proposed certain
items it felt it must have to represent the employees. These
items were (1) mandatory arbitration; (2) lay-off in inverse
seniority; (3) a reasonable wage increase; (4) some modifi-
cation of the management rights clause; and (5) time and a
half for overtime. It is equally clear from the record in the
instant proceeding that Respondent was well aware of this
and that throughout the negotiations, both in New York-
Newark and during the negotiations in the instant case, it
refused to substantially change its position as to these pro-
posals.
During the July 23 meeting, which lasted several hours,
the Respondent made no concessions and insisted upon its
last New York-Newark proposals. As no progress was
made at the July 23 meeting, the parties agreed to meet
again on November 30, 1973. At this session, the Respon-
dent again insisted upon its New York-Newark proposals.
The Union responded during the November 30 session that
it would accept all of the Respondent's proposals on fringe
benefits (i.e., vacations, holidays, sick leave, pension) but
that the Union wanted mandatory arbitration of griev-
ances, layoffs in reverse order of seniority, overtime on a
daily and weekly basis, and improvement in the manage-
ment rights clause. The Respondent at this meeting, as it
had at the prior meeting, stated that it would not give the
Union mandatory arbitration. At the November 30 session,
the Respondent again refused to make any concessions as
to its New York-Newark proposals.
At the November 30 session, according to General
Counsel's witness Michael Whalen, Ryan (regional vice
president of the eastern region of Respondent) asked Bend-
er (secretary-treasurer and business agent of the Union) if
the Union would have any objection to Respndent's bring-
ing Claims Adjuster Charles Morgan into the office in
Hackensack. Bender replied that he would talk to Morgan
who probably would not like it. A claims adjuster who
worked outside the office was entitled to lunch money, ap-
parently a fringe benefit. No effort was made by the Union
to ascertain the need for this move, why Morgan was se-
lected, or how and when the move would be made. Whalen
later talked to Morgan on the phone about the contemplat-
ed move and Morgan signified he did not like the move. A
few weeks later, having heard nothing from the Union, Re-
spondent moved Morgan into the office on a part-time ba-
sis. At the conclusion of the case for the General Counsel,
Respondent's counsel moved to dismiss as to the para-
graphs of the complaint which alleged this action to be
unilateral and violative of Section 8(a)(1) and (5) of the
Act. After first hearing argument from General Counsel
against the motion, I granted the motion to dismiss. I have
reviewed the evidence again and am still of the opinion
that this action by Respondent was not unilateral and was
Employer did change its positions as to some of these proposals However,
as will be discussed later, the changes were minor and in some cases did not
cure the criticisms made by the Administrative Law Judge and the Board
393
not in violation of the Act. Respondent by asking the
Union if there was any objection to the proposed move was
opening up this issue for bargaining, not for finding per-
sonal preference. The Union did not attempt to bargain
over this contemplated action but instead merely was con-
cerned over Morgan's feelings in the matter. It is all very
well to consider the feelings of employees but the impor-
tant relationship between employer and agent for employ-
ees is to consider and bargain over alternatives to econom-
ic action. As this was not done by the Union at the time of
the request or within a reasonable period of days, the Re-
spondent is permitted to effectuate its planned move with-
out violating the laws of collective bargaining.4
By letter dated January 15, 1974, the Respondent in-
formed the Union that it was willing to resume negotia-
tions but as the "Company has not changed its position on
the same contractual issues that separate us at all three
places [New York, Newark, and Hackensack], I do not be-
lieve that any useful purpose would be served by such a
meeting, even though the Company has not yet made a
wage proposal at Hackensack."
D. Discussion
I find merit in the General Counsel's contention that the
Respondent's negotiations with the Union concerning the
Hackensack employees were nothing more than a mirror's
image of the bargaining which the Respondent has en-
gaged in with the Union for the New York-Newark em-
ployees and which was found by the Board in 204 NLRB
1013 to be bad-faith bargaining. It must then follow that
Respondent's bargaining for the Hackensack employees
was also bad-faith bargaining.
It is noted that, in his decision at 204 NLRB 1013, the
Administrative Law Judge found that the Respondent's
grievance and arbitration proposal when read in connec-
tion with Respondent's no-strike proposal was indicative of
Respondent's bad faith. In that case, as in the instant case,
the Respondent would not agree to compulsory arbitra-
tion, but insisted on voluntary arbitration, conceding only
that the Union had a right to suspend the no-strike clause
if the Company refused to arbitrate a grievance.5
In addition, the court of appeals in enforcing the Board
Order in 204 NLRB 1013 stated:
Another Company proposal that could only serve as
a roadblock related to grievance, arbitration and no-
strike provisions. The Company proposal defined a
"grievance" as "an alleged violation by the Company
of the clear and unambiguous terms of the language
explicitly set forth in [the] Agreement. ..." The
Company could determine whether or not it would
allow a "grievance" which was properly processed by
the Union to go to arbitration and the Union would
° As par 12 of the complaint had been withdrawn by the General Counsel
at the onset , only the so-called "surface bargaining" allegation remains to
be decided
5 Thus, if the Employer refused to go to arbitration, the Union's only
recourse would be to strike It was determined at the trial that a strike is not
an effective weapon because in case of a strike Respondent would merely
transfer employees from other offices to do the work of the strikers
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be permitted to suspend the no-strike clause only if (I)
either the Company or the Union did not wish to sub-
mit the matter in dispute to arbitration, (2) the matter
in dispute constituted a "grievance," and (3) the Com-
pany had in fact violated the Agreement as alleged in
the "grievance." These latter conditions-i.e., whether
the matter in dispute constituted a "grievance" and
whether the Company had in fact violated the Agree-
ment-would be determined, in the event of a strike,
by an arbitrator who would be picked exclusively by
the Company.
Acceptance by the Union of the Company's propos-
al would have constituted a waiver of any right to
process a grievance or strike ansing out of any matter
not specifically covered in the Agreement and, at the
time it made this proposal, the Company was insisting
on including only a limited number of subjects in the
contract. . . . We agree with the Administrative Law
Judge's conclusion that under this proposal there
would rarely be an instance "where the Union could
safely consider the no-strike clause suspended." The
effect of the clause would have been to place the em-
ployees in a worse position than if they had no con-
tract at all and to require the Union in effect to waive
its right to represent employees with respect to dis-
putes over employment conditions. The Board was
fully justified in concluding that the proposal was not
made in good faith. [495 F.2d at 49.]
As the Respondent's arbitration proposal and no-strike
proposal in this case is similar to that which the Judge and
the Board criticized in 204 NLRB 1013, the same criticism
is applicable to this case and I find the proposals were not
made in good faith.
In addition, the Board has held that a grievance and
arbitration proposal similar to the one in the instant case
indicates a predetermination not to reach an agreement.
Alba-Waldensian, Inc., 167 NLRB 695 (1967); Texas Coca-
Cola Bottling Company, 146 NLRB 420 (1964).
Additionally, Respondent's proposal on health, welfare,
and retirement was almost identical to the proposal put
forth by Respondent in the New York-Newark negotia-
tions and considered and concluded by the Judge therein
that, if accepted by the Union, the Union would waive its
statutory right to bargain about health, welfare, and retire-
ment plans. (See Alba-Waldensian, Inc., 167 NLRB 695
(1967), Tex-Tan Welhausen Co, 172 NLRB 851 (1968.)
This proposal, article XXII, section 2 provides, "No
change or modification of any such plan shall be a subject
for bargaining or grievance or arbitration between the par-
ties to this Agreement." A proposal such as this is an indi-
cation of bad-faith bargaining as it denigrates the agent of
the employees by making it give up its authority to repre-
sent the employees should the proposal be accepted.
Further evidence that Respondent never intended to
reach an agreement and thereby refused to bargain in good
faith, is article XV, the "No Discrimination" clause. There
the Company proposed, "The Company and the Union
agree not to discriminate against any employee because of
race, creed, color or national origin." The Union proposed
that they also add to that clause, "age, sex and union activ-
ity." The Respondent by its own admission declined to add
age, sex, and union activity taking the position that em-
ployees were already protected by Federal law as to these
three areas. Inasmuch as race, creed, color, or national ori-
gin are also protected by Federal law, Respondent's posi-
tion as to this issue is arbitrary and illustrates General
Counsel's contention that Respondent never intended to
enter into a collective-bargaining agreement or ever intend-
ed to bargain in good faith. As the Administrative Law
Judge noted in his Decision in 204 NLRB 1013, 1023, "The
Company's refusal to acknowledge in a collective-bargain-
ing agreement what it is required by law to do is to deni-
grate the status of the Union as the representative of its
employees by demonstrating how ineffective it is as a bar-
gaining agent."
Moreover, the Board in its Decision at 204 NLRB 1013,
in finding that the Respondent had bargained in bad faith
noted:
In exchange after exchange, all of which are set
forth in the Administrative Law Judge's Decision, the
Company took, in our judgment, unreasonable, cap-
tious positions, determined not to yield a single advan-
tage to the Union, even in those instances where it
desired to grant a benefit to the employees. For exam-
ple, . . . [r]esponding to a request for a standard non-
discrimination clause, the Company finally agreed not
to discriminate because of race, creed, color, or na-
tional origin, but significantly omitted "age, sex .. .
or activities on behalf of the Union."
Further illustration of Respondent's bad-faith bargain-
ing is in its sick leave and holiday proposal (art. X111 and
art. XI, respectively). Respondent's only witness, Richard
Ryan, admitted that the Respondent's current policy as to
holidays is that it is within the discrimination of the man-
ager as to whether an employee must work the day before
and the day after a holiday in order to be entitled to the
holiday. However, the Respondent's proposal as to holi-
days requires that the employee work the day before and
the day after a holiday in order to be eligible to be paid for
that holiday. Ryan also testified that the Respondent's pre-
sent policy as to sick leave is to permit employees more
than 10 days' sick leave. Respondent's proposal in the in-
stant case limits sick leave to 10 days. Therefore,
Respondent's proposals as to sick leave and holidays were
more restrictive than the Respondent' s existing practices,
thus leaving the employees in a poorer position than they
would be with no contract at all Insisting upon this is not
bargaining in good faith. Dothan Eagle, Inc., 174 NLRB
804, 815 (1969).
Further evidence of the Company's bad-faith bargaining
is its insistence upon its proposed broad management
rights clause in article II. It is clear when reading the man-
agement rights provision in conjunction with all the other
restrictive and limited proposals made by the Respondent
that such a management rights provision requires the
Union to waive practically all of its rights. East Texas Steel
Castings Company, Inc., 154 NLRB 1080 (1965).
The Respondent attempted to show that it bargained in
UNDERWRITERS ADJUSTING CO.
good faith showing that it made certain concessions after
the Administrative Law Judge's Decision was issued in the
New York-Newark case . The Respondent, at the hearing
made much of its concession as to layoff in inverse senior-
ity. It conceded that it would consider seniority when de-
termining which employee should be laid off for employees
with 20 or more years' service. Such a concession in view of
the few who had 20 years' service is meaningless and only
points up the fact that the Respondent was not bargaining
in good faith.
Respondent also attempted to show that it made a con-
cession to the Union by changing section 2 of its manage-
ment rights clause in article II, to permit an employee, who
believes that the amount of work being assigned to him is
unreasonably excessive, to submit a grievance regarding
the amount of work assigned to him. However, in section 1
in article VI of those same proposals, the Respondent spe-
cifically excluded from arbitration a grievance wherein the
employee claims that the amount of work assigned to an
employee is unreasonably excessive. Thus, Respondent
permits employees to file a grievance over excessive work
loads but excludes such a grievance from arbitration. Such
concession is of no value since , in fact, it is no concession.
Another attempt by Respondent to show a concession in
bargaining had to do with the checkoff proposal of the
Union. At first Respondent opposed monthly checkoff of
union dues but then conceded that it would checkoff dues
but only on a quarterly basis. Thus the employees would
have an unbalanced paycheck every 3 months making their
personal budgeting more difficult with the obvious blame
falling on the Union. This effort to undercut the Union
and embarass the employees, when viewed with the evi-
dence given by Respondent that it would be easier and
cheaper to have dues checkoff each payday in their compu-
terized payroll operation, leads to the conclusion that Re-
spondent was bargaining in bad faith. In this respect it
would make no difference, in law, if the Union would agree
to it.
It is evident from all of the above that the Respondent
never intended to enter into good-faith negotiations with
the Union. The Board has held that the duty to bargain
collectively as defined in Section 8(d) of the Act requires
the parties "to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an agree-
ment ... ... Although this obligation does not "'compel
either party to agree to a proposal or require the making of
a concession,' Section 8(d) does contemplate a willingness
to enter negotiations `with an open mind and purpose to
reach an agreement consistent with the respective rights of
the parties," Sweeney & Co, Inc, 176 NLRB 208, 211
(1969). The Supreme Court has stated that the mere enter-
ing into sterile, marathon discussions of union-manage-
ment differences does not satisfy the duty to bargain in
good faith, N.L.R.B. v. American National Insurance Co,
343 U.S. 395, 402 (1952). The ultimate issue of whether the
Company conducted its bargaining negotiations in good
faith involves a finding of motive or state of mind which
can only be inferred from circumstantial evidence. Thus, in
the instant case the Respondent's past history of bad-faith
bargaining with this very Union, the Respondent's contin-
395
uation of this same pattern of bargaining during the instant
Hackensack negotiations (even in the face of a Board Or-
der as to the New York-Newark units); the Respondent's
insistence on substantially the same proposals that were
justifiably criticized by the Administrative Law Judge and
the Board in the prior case and which were used as a basis
in that case for a finding of bad-faith bargaining; the fail-
ure to make a wage proposal; and, finally, the hollow con-
cessions made by the Respondent all point to only one
conclusion-that the Respondent did, in fact, bargain in
bad faith and had no intention of ever reaching an agree-
ment with the Union,6 and I so find.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section II,
above, occunng in connection with the Respondent's oper-
ations described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce and
the Union is a labor organization within the meaning of the
Act.
2. Since May 31, 1973, the Union has been the certified
exclusive collective-bargaining representative of employees
of Respondent, within the meaning of Section 9(a) of the
Act, in a unit composed of all claims adjusters, claims ex-
aminers, and claims representatives employed by Respon-
dent at Respondent's Hackensack office, but excluding all
office clerical employees, professional employees, guards,
supervising adjusters and all other supervisors as defined in
the Act, which is a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
3. By proposing substantially the same terms relating to
grievance, arbitration, and no-strike as the Board and the
Court of Appeals had previously decided to be a proposal
not made in good faith, Respondent refused to bargain in
good faith with the Union in violation of Section 8(a)(5) of
the Act.
4. By proposing substantially the same terms relating to
health, welfare, and retirement as the Board and the Court
of Appeals had previously decided to be bad-faith bargain-
ing, Respondent refused to bargain in good faith with the
Union in violation of Section 8(a)(5) of the Act.
5. By taking an arbitrary stand in refusing to add "age,
6 General Counsel contends that I erred in ruling that Respondent did not
have to produce notes taken by a witness who testified openly about meet-
ings attended by witnesses for the General Counsel who also had testified,
under the authority of N L R B v Tex-Tan, Inc, 318 F 2d 472 (C.A 5,
1963). There is no doubt but that the notes would be proper evidence but
just because there is evidence available for introduction does not mean it
must be produced The presiding judge has discretion in limiting the amount
of evidence introduced Witnesses had testified on the points involved in the
notes
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sex and union activity" to its "No Discrimination" clause
which included "race, creed, color or national origin," Re-
spondent refused to bargain in good faith with the Union
in violation of Section 8(a)(5) of the Act.
6. By proposing terms for sick leave and holidays which
were more restrictive than existing practices, Respondent
refused to bargain in good faith with the Union in violation
of Section 8(a)(5) of the Act.
7. By proposing a broad management rights clause
which when read in conjunction with the other restricted
and limited proposals made by Respondent requires the
Union to waive practically all its rights to represent the
employees, Respondent refused to bargain in good faith
with the Union in violation of Section 8(a)(5) of the Act.
8. Concessions made by Respondent to the Union in a)
considering the use of seniority when determining which
employee should be laid off only for employees having 20
or more years seniority; b) permitting an employee to sub-
mit a grievance over work assignments while excluding
these from arbitration; and c) granting checkoff of union
dues each calendar quarter rather than the more efficient
checkoff on each payday, are only "hollow" concessions
and cannot be relied on as a true concession made in a
good-faith effort to reach a collective-bargaining agree-
ment.
9. By refusing to bargain in good faith with the Union,
Respondent violated Section 8(a)(1) as well as Section
8(a)(5) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. Except to the extent found above, Respondent has
not engaged in conduct violative of the Act as alleged in
the complaint.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent bargained unlawfully
with the Union, I will recommend that it be ordered to
cease and desist from bargaining in bad faith and to bar-
gain, upon request, in good faith with the Union in the
above-described unit and, if an understanding is reached,
that it embody such understanding in a signed agreement.
As evidence of its bad-faith bargaining is found in some of
the contract clauses Respondent has insisted upon to im-
passe, Respondent should be ordered to modify the clauses
in order to comply with the requirements of good-faith bar-
gaining.'
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and on the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDERS
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Insisting to impasse upon collective-bargaining con-
tract clauses which in substance have previously been held
by the Board and the Courts to constitute refusals to bar-
gain in good faith.
(b) Refusing to bargain in good faith with the Union in
the following appropriate unit:
All claims adjusters, claims examiners and claims rep-
resentatives employed by Respondent at Respondent's
Hackensack office but excluding all office clerical em-
ployees, professional employees, guards, supervising
adjusters and all other supervisors as defined in the
Act, which is a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Teamsters Local No. I (American Communi-
cations Association) a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3) of the
Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain in good faith with the Union
for employees in the aforesaid appropriate unit with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
i At stake in collective bargaining is the best interest of the employer and
its employees , and this goal should never be lost sight of in bargaining
meetings between their respective agents As ethical considerations are in-
volved in good faith , an order to bargain in good faith is effective to the
extent the bargaining parties have good ethics Should a more mechanical
approach be used in remedying bad-faith bargaining by the Board, in order
to effectuate the policies of the Act , the Board could use its rulemaking
powers and consider argument and proposals from all sides If unethical
tactics of agents is the problem, the Board could effectively curtail that
aspect by dealing directly with their right to appear before the Board At
present, an order to bargain in good faith is sufficient for men of good will
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
UNDERWRITERS ADJUSTING CO.
(b) Post at its offices in Hackensack, New Jersey, copies
of the attached notice marked "Appendix." 9 Copies of
said notice, on forms provided by the Regional Director
for Region 22, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
9In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States court of Appeals Enforcing an Order
of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
397
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT continue to bargain in bad faith, but
WE WILL bargain in good faith with Teamsters Local
No. I (American Communications Association) a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the repre-
sentative of our employees in the unit described be-
low:
All claims adjusters, claims examiners and claims
representatives employed by Respondent at
Respondent's Hackensack office, but excluding all
office clerical employees, professional employees,
guards, supervising adjusters and all other supervi-
sors as defined in the Act, which is a unit appropri-
ate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
And, if an understanding is reached, embody such un-
derstanding in a signed agreement.
UNDERWRITERS ADJUSTING
COMPANY