Wycoff Steel

National Labor Relations Board - Board Decisions

Jun 26, 1991

303 N.L.R.B. 517 (N.L.R.B. 1991)

517
303 NLRB No. 76
WYCOFF STEEL
1 The General Counsel, supported by the Charging Party, has filed an excep-
tion seeking to have the judge’s order modified to make it clear that all issues
involving the termination date of the Respondent’s backpay liability will be
left to the compliance stage. The Respondent has filed an answering brief. The
Respondent correctly points out that there is no issue in this case as to the
Respondent’s closure of its Putnam, Connecticut mill or as to any failure to
bargain order because there is nothing in it which precludes the General Coun-
sel from asserting, at a compliance proceeding, that the Respondent’s backpay
liability extends past the closure date of the discontinuance of employment of
unit employees.
We correct the record to show that the correct spelling of the Respondent’s
name is ‘‘Wycoff Steel, Inc.’’
1 At the hearing the Respondent was represented by Faulise. However, sub-
sequent to the closing of the hearing and on joint intentionally for withdrawal
of Faulise and the substitution of Mueller as attorney for the Respondent,
dated August 13 and 7, 1990, respectively, and the written consent of the Re-
spondent on August 30, 1990, I granted the motion for withdrawal and substi-
tution of counsel.
2 I correct what is an obvious error in the transcript of this hearing as re-
gards the parties making the various statements on Tr. 102, L. 24, and Tr. 103,
LL. 1–5 as follows:
MS. BAILEY: I’m raising an objection.
JUDGE KLEIMAN: What is the basis?
MS. BAILEY: That she hasn’t reviewed them in order to testify.
MR. FAULISE: I would inspect these to determine conformance with her
testimony and use them as a basis for cross-examination.
Wycoff Steel, Inc. and United Steelworkers of
America, AFL–CIO. Cases 34–CA–4531 and
34–CA–4578
June 26, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On December 19, 1990, Administrative Law Judge
Jesse Kleiman issued the attached decision. The Gen-
eral Counsel filed an exception. The Charging Party
filed a response in support of the General Counsel’s
exception. The Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception, the response, and the
brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wycoff Steel, Inc., Put-
nam, Connecticut, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Jaye Bailey, Esq., for the General Counsel.
Salvatore V. Faulise, Esq., of Hartford, Connecticut, and
Russ R. Mueller, Esq., of Milwaukee, Wisconsin, for the
Respondent.1
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. The charge
and amended charges in Case 34–CA–4531 were filed on
December 1 and 12, 1989, and February 7, 1990, and the
charge in Case 34–CA–4578 was filed on January 19, 1990,
by United Steelworkers of America, AFL–CIO (the Union)
and a consolidated complaint was issued on February 26,
1990. The consolidated complaint alleges that Wyckoff Steel,
Inc., a successor to Ampco-Pittsburgh Corporation (the Re-
spondent or the Company) violated Section 8(a)(1) and (5)
and Section 8(d) of the National Labor Relations Act (the
Act) by designating an individual as its bargaining represent-
ative who did not have the authority to negotiate or consum-
mate a collective-bargaining agreement with the Union and
by intentionaly misinforming the Union as to her authority,
by unilaterally implementing changes in terms and conditions
of employment without affording the Union an opportunity
to negotiate and bargain with respect thereto, and by failing
to make contractually required insurance premium payments
for its employees. The Respondent filed its answer on April
9, 1990, denying the material allegations in the consolidated
complaint. This case was tried in Hartford, Connecticut, on
June 11 and 12, 1990.
On the entire record2 and the briefs filed by the General
Counsel and the Respondent and on my observation of the
witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Connecticut corporation, operated a
steel mill in Putnam, Connecticut, wherein it produced ‘‘cold
finished steel products,’’ steel bars cut and formed to cus-
tomer specifications. The Respondent annually purchased and
received products, goods, and materials valued in excess of
$50,000 directly from places outside the State of Con-
necticut. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act. Additionally, the parties stipulated
and I find that Irene Levesque who occupied the position of
the Respondent’s general manager had been at all times ma-
terial, a supervisor of the Respondent within the meaning of
Section 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act,
and that by virtue of Section 9(a) of the Act, the Union is
the exclusive bargaining representative for the purposes of
collective bargaining of the Respondent’s employees in a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act composed of:
All employees employed at the Putnam, Connecticut
plant but excluding supervisors, foremen, office man-
agers, salesmen, watchmen, guards and executives.
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Ampco Pittsburgh Corporation (AMPCO) owned and oper-
ated steel mills located in Chicago, Illinois; Plymouth,
Michigan; and Putnam, Connecticut; the latter being the steel
mill involved in the instant case. With regard to the Putnam
mill and beginning in 1959, AMPCO recognized the Union
as the exclusive collective-bargaining representative of its ap-
proximately 30–35 employees therein embodying such rec-
ognition in successive collective-bargaining agreements, the
most recent of which was effective by its terms from May
1, 1986, through October 31, 1989. Under the terms of the
agreement, AMPCO was obligated, inter alia, to provide
health insurance, a severance plan, a supplemental unemploy-
ment benefit (SUB) plan and a pension plan for employees,
and life insurance for retirees. The bargaining agreement also
lists all bargaining unit positions and corresponding wage
rates and vacation benefits.
By ‘‘Assets Purchase Agreement’’ dated April 28, 1987,
AMPCO sold its steel mills to the Respondent and under the
terms of the sale the Respondent agreed to assume the obli-
gations of the collective-bargaining agreement including the
SUB plan, insurance plans, and the pension agreement. The
uncontradicted testimony here shows that the sale caused no
interruption or change in the business of the Putnam mill, all
bargaining unit and management personnel were retained and
the equipment and production process remained the same.
The Respondent continued to produce the same ‘‘cold finish
steel products’’ which had been made by AMPCO, and re-
tained AMPCO’s customers. The only changes which oc-
curred on sale were the change of name of the company, in-
cluding that on the pension plan and the substitution of the
Respondent’s own health insurance carrier. The Respondent
continued, in full force and effect, all the terms of the collec-
tive-bargaining agreement after the sale.
In July 1988, the Respondent appointed then Putnam Sales
Manager Irene Levesque, as ‘‘interim General Manager’’ of
the Putnam plant, a position she continued to hold until her
layoff in November 1989. Levesque, a witness for the Gen-
eral Counsel, testified that after her appointment as interim
general manager she conferred regularly with Bill Albrecht,
the Respondent’s chief operating officer, and with Gene
Marsh, the general manager of the Respondent’s Chicago
mill, regarding the daily operations of the Putnam mill.
Sometime in July 1989, with the current collective-bar-
gaining agreement’s expiration date of October 31, 1989, ap-
proaching, and having had no experience herself in contract
negotiations, Levesque spoke to Albrecht in connection with
‘‘who was going to be doing the negotiating’’ with the
Union and Albrecht advised her that it would ‘‘probably’’ be
Marsh. Levesque then contacted Marsh who confirmed that
he would be coming to Connecticut to conduct the negotia-
tions for the Putnam facility with the Union.
Pursuant to Marsh’s instructions and on his approval of its
contents, Levesque prepared and sent to the Union, under
Marsh’s name, as signed by Levesque, a letter dated August
2, 1989, requesting the opening of negotiations for a new
contract and the scheduling of a meeting for that purpose. By
letter dated August 3, 1989, addressed to Marsh in Putnam,
Connecticut, the Union agreed to meet and negotiate with the
Respondent regarding a new collective-bargaining agreement.
As would be her practice thereafter regarding any commu-
nications from the Union, Levesque forwarded the Union’s
letter to Marsh in Chicago by FAX machine. Levesque testi-
fied that subsequently she was informed by Marsha Peterson,
the Putnam plant’s comptroller, that the Respondent ’s attor-
ney, Lew Shaffer had advised Peterson that ‘‘Putnam would
be doing their own negotiations.’’ On contacting Marsh in
the latter part of August 1989, Levesque was told by Marsh
that she would be conducting the contract negotiations be-
cause the Respondent considered it too costly to fly Marsh
to Connecticut from Chicago.
In this connection, Levesque stated that Marsh instructed
her to meet with the Union’s representatives, but she was not
to make any decisions on behalf of the Respondent. Instead,
Levesque was to contact Marsh in Chicago who would in
turn consult with the Respondent’s owner, Arthur Lorch, and
its attorney and accountant, Lew Shaffer and Jim Sutcliffe,
respectively, who were located in New York, regarding any
proposals or agreements during the negotiations. Marsh fur-
ther instructed Levesque to review the provisions of the cur-
rent bargaining agreement and ‘‘to do it in two sections, a
language section and an economics section and to arbitrarily
pick out items for negotiation.’’ Levesque was supposed ‘‘to
make up’’ her own proposals. Levesque requested and re-
ceived from Marsh a copy of the recently negotiated bar-
gaining contract regarding the Chicago facility to assist her
in choosing contract items for negotiation because Levesque
had no prior experience in bargaining agreement negotia-
tions. Using the Chicago contract as a guide, Levesque pre-
pared a wage proposal and language and other economic
issue proposals which she FAX’d to Marsh for approval
through ‘‘New York.’’ Levesque’s proposals were approved
except for the wage scale proposal which was still under
consideration.
1. The negotiation sessions
The parties met at the Respondent’s Putnam facility on
September 5, October 11 and 31, and November 3, 8, 10,
and 22, 1989, to negotiate a new collective-bargaining agree-
ment. The Union was represented at these meetings by
Francis Farrell, the United Steelworkers of America, District
One representative, Local Union President William
Livengood, and Roger Sarette, the Union’s financial sec-
retary, while present for the Respondent was Levesque. The
following account of what occurred there is based on the tes-
timony of Levesque and Livengood and the exhibits intro-
duced into evidence by the General Counsel. The Respondent
called no witnesses at the hearing nor presented any other
evidence there.
Based on my observation of the demeanor of the wit-
nesses, the weight of the respective evidence, established and
admitted facts, inherent probabilities and reasonable infer-
ences which may be drawn from the record as a whole, I
credit the account of what occurred here, as given by the
General Counsel’s witnesses Levesque and Livengood. Gold
Standard Enterprises, 234 NLRB 618 (1978); V & W Cast-
ings, 231 NLRB 912 (1977). Their testimony was given in
a forthright manner, was corroborative and consistent with
each other, and most importantly, consistent with the other
evidence in the record and therefore most believable. Fur-
thermore, of compelling significance in crediting their testi-
mony is the failure of the Respondent to call Marsh, Shaffer,
519WYCOFF STEEL
or Lorch as witnesses to rebut any of the testimony given
here. Especially, Marsh was knowledgeable as to what was
transpiring at the time, although Shaffer or Lorch could have
also testified on behalf of the Respondent with sufficient
awareness of what transpired. They being material witnesses,
the failure to produce at least one of them at the hearing,
being obviously within the Respondent’s control and without
any explanation therefore, leads me to draw the inference
that their testimony would have been unfavorable to the Re-
spondent’s case. 7-Eleven Food Store, 257 NLRB 108
(1981), and cases cited there.
Furthermore, I do not find the Respondent’s assertion that
Levesque ‘‘demonstrated herself to be biased against Re-
spondent’s position,’’ supported here. Although Levesque’s
testimony regarding the Respondent’s actual sales figures
was forgetful she did testify that there was a ‘‘dramatic
drop’’ in the Respondent’s sales and earnings in 1989 and
she also approximated overall sales figures. Although her ex-
pressed unhappiness with the Respondent’s actions during
the latter part of the negotiations and her layoff at the closing
of the Putnam plant might not have endeared the Respondent
to her, there is no real evidence to show that this caused her
to testify in any manner other than truthfully, nor can I infer
this from the record as a whole. And again, significantly, the
documentary evidence herein totally and thoroughly supports
her testimony as given.
2. The September 5, 1989 meeting
At the commencement of the meeting, Farrell asked if
there would be anyone else attending the negotiations for the
Respondent besides Levesque, and she responded that she
would be the Respondent’s only representative at the meet-
ings. Levesque also advised the Union’s representatives that
she in effect had no authority to approve any contract pro-
posals, that she was required to check with Marsh in Chicago
who then would be ‘‘in touch with New York’’ for approval
of any proposals made by the parties during these negotia-
tions. Farrell raised concern that there was no one present at
the negotiations who had authority to make decisions for the
Respondent then and there. Although the Union offered no
contract proposals at this meeting, Farrell requested a 1-year
extension of the current bargaining agreement. Levesque in-
formed the Union that she would submit the Union’s request
to Marsh for consideration but that it would take time for the
decision to be made. The meeting was then ended with
Levesque stating that she would contact the Union as soon
as she received word on the extension request. Levesque
FAX’d the request to Marsh who answered that the Union’s
extension request was denied. The next day she telephoned
Farrell and told him of the Respondent’s rejection thereof.
By letter dated September 13, 1989, addressed to Marsh
at the Putnam plant, Farrell advised that if it were the Re-
spondent’s position at the negotiations that the Respondent
was ‘‘looking for concessions,’’ then the Company would
have to open its books to the National Union’s auditors’’ to
confirm the Company’s need for such relief.’’ Levesque
FAX’d the letter to Marsh in Chicago who advised Levesque
that he would have to get approval of this from New York.
Subsequently, by letter dated September 25, 1989, signed
with Marsh’s name by Levesque, the Respondent agreed to
a review of its financial records by the Union.
3. The October 11, 1989 meeting
Levesque presented the union representatives with the Re-
spondent’s ‘‘language and economic section’’ proposals at
this meeting after the Union had informed her that it would
have no proposals to offer until after it had the opportunity
to look at the Respondent’s books. The Respondent’s pro-
posals did not include, as yet, a proposed wage scale. Farrell
expressed disappointment that the Respondent’s proposals
were entirely concessionary and stated that he would be in
touch with the International Union in Pittsburgh regarding re-
view of the Respondent’s financial records, which the Union
had not as yet received. The meeting was then concluded
having lasted about 50 minutes.
By letter dated October 16, 1989, addressed to Marsh at
the Putnam plant, the National Union in Pittsburgh, Pennsyl-
vania, repeated the Union’s request for the Respondent’s
business records expressly detailing the financial information
sought, which letter Levesque FAX’d to Marsh. In a subse-
quent telephone conversation, Marsh advised Levesque that
he would send the request to New York and then instructed
her to lay off the Putnam mill employees for 2 weeks com-
mencing on October 23, 1989. On October 19, 1989, at
Levesque’s request, Marsh, via FAX, sent her a copy of the
note he had forwarded to the Respondent’s attorney, Shaffer,
in New York about the Union’s request for financial infor-
mation and containing Marsh’s suggestions regarding the
Putnam negotiations. In the note Marsh suggested that the
Respondent give the Union its proposed wage scale before
the expiration date of the bargaining agreement on October
31, 1989, so that if the employees were called back from lay-
off, there would be a wage scale to use after the current con-
tract had expired. On Marsh’s instructions, on October 26,
1989, Levesque sent the Respondent’s ‘‘wage recommenda-
tions’’ to the Union under Marsh’s signature as signed by
Levesque.
That same day, Levesque received a letter from the Union
dated October 24, 1989, and addressed to Marsh, requesting
an extension of the contract until November 30, 1989, which
letter Levesque FAX’d to Marsh. In a telephone conversation
between them, Marsh informed her that he would need New
York’s approval for the extension. Levesque asked Marsh if
the Union had been sent the financial information it had re-
quested and Marsh answered that he would also check with
New York about this. Marsh called Levesque back and ad-
vised her that the Respondent’s accountant, Sutcliffe, had
told him that Putnam’s controller, Marsha Peterson, was
working on the financial information. When Levesque ques-
tioned Peterson about this Peterson denied that anyone had
asked her to prepare the information, whereupon Levesque
called Marsh and apprised him of this. Marsh became ‘‘quite
upset’’ about this turn of events. During the conversation
Marsh also instructed Levesque to tell the Union that the Re-
spondent had denied its request for an extension of the bar-
gaining agreement and that the Company’s proposal re-
mained the same as previously submitted to the Union at the
negotiations. Levesque called Farrell on October 30, 1989,
and advised him that the Union’s extension request had been
denied and a negotiation meeting was then arranged for the
next day.
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Levesque testified that the Union had said it ‘‘would be willing to give
up something’’ as regards the meaning of the term ‘‘flexible’’ as used by her.
4 After her telephone conversation with Marsh, Levesque became ‘‘quite
upset’’ because of what Marsh wanted her to do regrading the issue of her
authority at the negotiations and told Peterson that she was going to quit.
Livengood also testified as to her state of agitation stating that Levesque start-
ed to cry in his presence and told him of her intention to quit the Respondent’s
employ. Livengood told her to think about such a drastic step before she made
the move. Levesque did not quit her job as ‘‘interim general manager.’’
4. The October 31, 1989 meeting
At this meeting Levesque informed the Union that the Re-
spondent’s contract proposals remained the same. The Union
then submitted its proposals to the Respondent. Although
these proposals had been drafted earlier, the Union had not
presented them to the Respondent at prior negotiation meet-
ings due to its desire to wait until the National Union had
reviewed the Respondent’s financial information. Levesque
then FAX’s the Union’s contract proposals to Marsh for con-
sideration. Farrell was ‘‘very upset’’ accusing the Respond-
ent of not bargaining in good faith because there was no one
at the negotiations with authority representing the Respond-
ent. Farrell stated that the Union would file unfair labor prac-
tice charges against the Respondent unless an extension of
the contract was granted. Levesque called Marsh and ap-
prised him of what Farrell had said and Marsh responded
that she should not worry about it and that he would send
the Union’s proposals to New York by FAX along with his
recommendations.
Levesque and the Union’s representatives then waited ap-
proximately 3 to 4 hours for a response during which no ne-
gotiation discussions were engaged in and during which
Levesque called Marsh repeatedly until Marsh finally told
her that it was taking this long because ‘‘Lorch’s wife was
sick in the hospital.’’ Later on, Marsh called Levesque and
informed her that the Respondent had rejected the Union’s
‘‘proposal in its entirety,’’ and that an extension of the con-
tract until November 3, 1989, would be granted, all of which
she repeated to the Union. Levesque also asked Marsh to
FAX her a copy of the written recommendation he had sent
to New York, which he did. On learning of the Respondent’s
answer, Farrell informed Levesque that the Union was going
to file charges against the Respondent because the Company
was not negotiating in good faith. The Union then agreed to
the limited extension of the bargaining agreement and the
meeting ended.
5. The November 3, 1989 meeting
Additionally present, at this meeting was Federal Mediator
Thom Carroll. Levesque informed the Union that the Re-
spondent’s proposals remained the same. Farrell responded
that the Union wanted a more realistic proposal and would
file charges against the Respondent because the Company
was not bargaining in good faith and Levesque did not have
any bargaining authority. Farrell also requested a contract ex-
tension until mid-June 1990. Levesque called Marsh and in-
formed him of what had transpired and Marsh said that ‘‘he
would fax the recommendation to New York.’’ Again the
parties waited for several hours during which time there were
no negotiations being conducted. Marsh finally called
Levesque and told her that the Respondent would grant an
extension to November 10, 1989, to which the Union agreed.
6. The November 8, 1989 meeting
At this meeting Levesque told the Union that the Respond-
ent’s proposals had not changed and the Union said that
‘‘they were flexible on all items.’’ The parties then discussed
the Respondent’s proposal, item by item. The Union stated
that it would agree to remain at the current 10 holidays a
year; was flexible on wages, vacation, medical contributions,
and the language proposals;3 offered 9 months on life insur-
ance instead of the 3 proposed by the Respondent but also
indicated their continuing flexibility on this proposal also;
and rejected the Respondent’s proposed SUB plan. The
Union also asked for a guarantee that the Respondent would
operate the Putnam mill for ‘‘a couple of years.’’ Levesque
offered no counterproposals on the Respondent’s behalf but
instead called Marsh and reviewed the Union’s position re-
garding the contract proposals with him. Marsh was then to
contact her thereafter regarding the Respondent’s next move.
Although the parties waited 3 or 4 hours for Marsh’s reply,
during which no negotiations took place, no answer was
forthcoming or received and the meeting was ended.
The following day, November 9, 1989, Levesque called
Marsh and asked him to FAX her the note he had sent to
New York regarding the negotiation meeting on November
8, 1989, which he did. Therein Marsh had advised Shaffer
that the Union had threatened to file unfair labor practice
charges with the Board concerning Levesque’s lack of au-
thority to negotiate a collective-bargaining agreement and the
Respondent’s lateness in furnishing the Union with requested
financial records. Marsh suggested in the note that the Re-
spondent ‘‘drop’’ its proposal to reduce the number of holi-
days in the contract because it ‘‘might show some willing-
ness on our part and would not be financially significant in
the grand scheme.’’ Marsh then informed Levesque that there
had been no decision made as yet regarding the Union’s pro-
posals.
That same day Levesque received a telephone call from
Shaffer who informed her that he had been unaware that she
had told the Union that she had no authority to make deci-
sions at the negotiations and that she should never have told
its representatives that. Shaffer also said that he didn’t know
how she was going to accomplish it but ‘‘to get it straight-
ened out.’’ Levesque was surprised about this and called
Marsh who instructed her to tell the Union at the negotiation
meeting scheduled for the next day, that there had been a
‘‘misunderstanding’’ and that she had been ‘‘making deci-
sions all along and would continue to do so.’’ Marsh also
told her to withdraw the Respondent’s holiday proposal ‘‘to
show we were making movement on that part of it’’ and to
advise the Union that the remainder of the Company’s pro-
posal would remain the same.4
On November 10, 1989, prior to the start of the negotia-
tion meeting, Levesque received a telephone call from Marsh
who instructed her to prepare a letter, this time under her
own signature as general manager, advising employee mem-
bers of the Union ‘‘not on lay off status,’’ that there was
work available for them commencing November 13, 1989,
with wages and benefits to be based on the Respondent’s
proposal submitted to the Union on November 10, 1989.
Marsh also FAX’d to her a copy of the Respondent’s pro-
posals ‘‘#2,’’ which he had sent to New York, with the date
changed from October 11 to November 10, 1989, which sug-
521WYCOFF STEEL
gested changes in two items of the Respondent’s prior inital
proposal and the withdrawal of its proposed change in the
number of holidays. Marsh suggested there a change in the
length of employment required of initial on layoff necessary
to secure life and medical insurance coverage during the lay-
off period and the number of months of such coverage appli-
cable. He also suggested a change in the amounts of medical
insurance contributions.
7. The November 10, 1989 meeting
At the commencement of this meeting, Levesque told the
Union’s representatives that ‘‘there must be a misunder-
standing’’ and that she had been making the decisions during
the negotiations and would continue to do so. Levesque then
presented the Union with the Respondent’s ‘‘Company Pro-
posal #2,’’ ‘‘which indicated that the Respondent’s holiday
proposal had been withdrawn. Marsh’s other suggested
changes in the Respondent’s proposals were not included
there. Farrell told Levesque that the Respondent was not bar-
gaining in good faith and that the Union ‘‘had filed charges
with the labor board.’’ The Union then submitted its ‘‘Union
Proposal’’ to the Respondent. In its proposal, the Union
agreed to the Company’s language on ‘‘A’’ and ‘‘B’’ and of-
fered a modification to the Company’s language in ‘‘C’’; re-
duced its proposal on wage increases; accepted the Com-
pany’s agreement as to no change in the number of holidays;
proposed employee contributions regarding health insurance,
and offered a package of health benefits for laid off employ-
ees. The Union also dropped its proposal on sick days and
bonus days and sought a 2-year term for the new collective-
bargaining agreement. Levesque told the Union that it would
take her ‘‘a few minutes to decide on that proposal and re-
view it.’’ Livengood asked her why she couldn’t make the
decision then and there and, as instructed by Marsh to do so,
Levesque responded that she had ‘‘to check to see what fi-
nancial impact it would have on the company.’’ Levesque
then left the room and FAX’d a copy of the Union’s pro-
posal to Marsh. After a wait of half an hour, Marsh called
Levesque back and informed her that New York would ac-
cept items ‘‘A’’ and ‘‘B’’ (which were the Respondent’s pro-
posals); proposed the same language as the Respondent had
previously proposed on item ‘‘C’’ and that all other items
would remain as the Respondent had previously proposed.
The Respondent also rejected all the ‘‘local issues’’ proposed
by the Union, rejected a 2-year term for the contract, and
agreed to accept any changes in the pension plan as required
by law. Marsh instructed Levesque to prepare and type up
what they had just discussed as ‘‘Company Proposal #3’’
which she did and she then presented the proposal to the
Union at this meeting.
The Union now presented the Respondent with a verbal
counterproposal consisting of the following: an extra week of
vacation for employees with 20 or more years of service; 3
months’ medical insurance coverage for employees with 1 or
less years of service who had been on layoff for 1 month,
and 9 months medical insurance coverage for employees on
layoff with more than 1 year’s experience; a $30 employee
contribution for insurance coverage for a family and $15
contribution for an individual, per month; $3500 life insur-
ance coverage for all new retirees; time and one-half for
holidays worked if the holiday was not mandatory; and a 3-
year term for the new contract. The Union also said it would
continue to be flexible on wage scales. Levesque prepared a
written notation of the Union’s verbal proposal and FAX’d
it to Marsh after leaving the meeting room. Marsh called her
on receiving the FAX notation and reviewed the proposal
with Levesque. Marsh instructed Levesque to indicate on the
Respondent’s ‘‘Proposal #3’’ that the parties have agreed to
a 3-year term for the contract, agreement as to ‘‘A’’ and
‘‘B’’ there, and that all its other proposals would remain the
same, and to inform the Union of this decision.
Moreover, prior to Levesque leaving the meeting to advise
Marsh of the Union’s verbal counterproposals, Farrell in-
formed Levesque that he was ‘‘very upset’’ about the way
the negotiations were progressing, that ‘‘in no way’’ had the
parties reached impasse in the negotiations, that the Union
had filed charges against the Respondent, and that the Union
was still willing to negotiate as often as possible to reach an
agreement including weekends. Farrell then left the meeting
leaving Livengood and Sarette to continue the negotiations
on behalf of the Union.
After Levesque returned to the meeting and informed the
Union as to what the Respondent had decided regarding the
Union’s verbal counterproposal, the Union verbally offered
to amend its counterproposals. The Union offered to reduce
its vacation proposal to provide for a maximum of 4 weeks’
vacation for long-term employees and a scale of lesser
amounts of vacation for less senior employees; an increase
of $10 over its prior proposal for employee contributions to
each type of medical insurance; and a possible elimination of
severance benefits if it could be accomplished over a period
of time. Livengood and Sarette reiterated the Union’s will-
ingness to meet with the Respondent as often as possible in-
cluding weekends in order to reach agreement on a new bar-
gaining contract.
Again Levesque FAX’d her notes of the Union’s proposal
to Marsh who called her back with the Respondent’s re-
sponse. Marsh told Levesque that the Respondent’s proposals
remained the same as set forth in its ‘‘Company Proposal
#3’’ and that the Respondent would not meet on Saturday or
Sunday because no one would be available in Chicago or
New York to make decisions regarding the negotiations.
Marsh then instructed Levesque to give the Union the pre-
viously typed letter dated November 10, 1989, telling em-
ployees that they could return to work on November 13,
1989, but under the terms of the Respondent’s ‘‘Company
Proposal #3. Amended.’’ Levesque gave the letter and the
Respondent’s last proposal (Company proposal 3, amended)
to the Union. Livengood and Sarette refused to sign the letter
acknowledging receipt of the two documents until Levesque,
with permission from Marsh, had typed thereon the words,
‘‘This signature does not indicate acceptance of this proposal
but indicates receipt of this letter.’’ Levesque also told the
Union that the Respondent could not meet with the Union on
Saturdays or Sunday but would meet ‘‘whenever it was con-
venient.’’ The meeting was then concluded.
On November 14, 1989, Levesque received a hand deliv-
ered letter from Farrell, addressed to Marsh, stating that the
Union does not agree to the Respondent’s proposals and the
fact that its members who are not on layoff status, return to
work and are compelled to accept such proposals as their
terms and conditions of employment, does not mean that the
Union has acquiesced thereto. The Union also indicated its
continuing willingness to meet with the Respondent and ne-
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gotiate a mutually satisfactory bargaining agreement and re-
quested an additional extension of the old contract in order
to accomplish this. The Union further acknowledged that
‘‘We remain flexible on all issues that have not been re-
solved between us,’’ and advised the Respondent that should
it ‘‘impose their concessionary amendments to the contract’’
on the returning employees, the Union would ‘‘pursue all
their legal options in these negotiations, including making
our members whole for any lost wages and benefits.’’
Levesque FAX’d the letter to Marsh that day.
Marsh now instructed Levesque to type and send a reply
to the Union’s letter, the language for which was sent to her
by Marsh, after approval by Lorch in New York. Marsh’s in-
structions included the direction to send the letter this time
under her own signature, which she did. This letter dated No-
vember 15, 1989, denied the Union’s request for any further
extension of the contract which expired on November 10,
1989, did advised the Union that employees who returned to
work on or after November 13, 1989, would be employed
under the terms and conditions set forth in the Respondent’s
‘‘latest proposal presented to the Union on Friday November
10, 1989.’’ The Respondent also indicated there its willing-
ness to continue negotiations with the Union on a new con-
tract.
Livengood and Sarette returned to work on November 14,
1989, the only two union member employees to do so. From
the time of their return until November 17, 1989, when they
were laid off, they received wages corresponding to the Re-
spondent’s ‘‘Company Proposal #3. Amended.’’ When
Livengood retired a few months later, he was given a ‘‘spe-
cial payment’’ pursuant to provisions of the pension plan in
an amount calculated by using an employee’s eligible vaca-
tion, in Livengood’s case the amount corresponding to the
length of his vacation time under the Respondent’s above
‘‘Proposal #3. Amended.’’
8. The November 22, 1989 meeting
At this meeting Farrell advised Levesque that the audit of
the Respondent’s financial records did not substantiate the
Company’s request for wage concessions nor support its
other concessionary proposals. However, the Union reiterated
that it was flexible on all the remaining items in the Re-
spondent’s last proposal. The Union also emphasized its will-
ingness to meet with the Respondent further to negotiate a
new collective-bargaining agreement. Levesque told the
Union that the Respondent’s proposals remained the same as
its latest proposal submitted to the Union on November 10,
1989, at which time this meeting ended, having lasted only
half an hour.
No further meetings were held as the Respondent closed
down the Putnam mill, laid off Levesque on November 30,
1989, sold all the equipment there, and refused to respond
to any of Livengood’s attempts to confer with Marsh or
Lorch. In mid-December 1989, the Respondent’s controller,
Peterson, informed Livengood that the medical insurance for
employees had been canceled retroactive to September 1,
1989, due to the failure of the Respondent to make the re-
quired premium payments. On Livengood’s request, Peterson
sent a letter to all employees informing them of this.
Moreover, the Respondent admitted here that it instituted
the changes set forth in its last proposal (Company proposal
#3, amended) after November 10, 1989, making the fol-
lowing changes in employment conditions: reducing wages
of unit employees; eliminating its severance and SUB plans;
altering the vacation time for employees having 5 or more
years of experience to a maximum of 3 weeks; and reducing
its medical insurance contributions and life insurance pay-
ments to retirees.
Furthermore, although Levesque could not recall the actual
figures involved, she did acknowledge that the Respondent
experienced a ‘‘substantial decrease’’ in sales during its last
year in business, 1989, at the Putnam mill.
B. Analysis and Conclusions
1. The successorship issue
The consolidated complaint alleges, in substance, that the
Respondent is a successor of AMPCO. The Respondent de-
nies this allegation. The Supreme Court of the United States
in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987),
stated:
In [NLRB v. Burns Security Services., 406 U.S. 272
(1972)] we approved the approach taken by the Board
and accepted by courts with respect to determining
whether a new company was indeed the successor to
the old. 406 U.S. at 280–281, and n. 4. This approach,
which is primarily factual in nature and is based upon
the totality of the circumstances of a given situation, re-
quires that the Board focus on whether the new com-
pany has ‘‘acquired substantial assets of its predecessor
and, continued without interruption or substantial
change, the predecessor’s business operations.’’ Golden
State Bottling Co. v. NLRB, 414 U.S. [168 (1973)] at
184. Hence, the focus is on whether there is ‘‘substan-
tial continuity’’ between the enterprises. Under this ap-
proach, the Board examines a number of factors:
whether the businesses of both employers is essentially
the same; whether the employees of the new company
are doing the same jobs in he same working conditions
under the same supervisors; and whether the new entity
has the same production process, produces the same
products, and basically has the same body of customers.
See Burns, 406 U.S. at 280, n. 1; Aircraft Magnesium,
265 NLRB 1344, 1345 (1982), enf’d, 730 F.2d 767
(C.A. 9 1984); Premium Foods, Inc., 260 NLRB 708,
714 (1982), enf’d 709 F.2d 623 (C.A. 9 1983).
In conducting the analysis, the Board keeps in mind
the question whether ‘‘those employees who have been
retained will understandably view their job situations as
essentially unaltered.’’ See Golden State Bottling Co.,
414 U.S. at 184; NLRB v. Jeffries Lithograph Co., 752
F.2d 494, 464 (C.A. 9 1985).
The record evidence in the instant case clearly establishes
that the Respondent is a successor of AMPCO. It is
uncontradicted that the Respondent acquired the assets of its
predecessor, conducted the same business as AMPCO, con-
tinued without interruption or substantial change the business
of AMPCO, continued to produce the same products under
the same production process using the same equipment, em-
ploying the same employees in the same jobs under the same
working conditions and under the same supervisors, and basi-
cally retaining the same customers as its predecessor
523WYCOFF STEEL
AMPCO. Moreover, the Respondent expressly agreed in the
purchase and sales agreement between itself and AMPCO to
assume the collective-bargaining agreement between
AMPCO and the Union except for some changes which did
not affect such assumption in substance. The Respondent
also recognized the Union as the bargaining representative
for the employees in the appropriate unit from the time of
purchase in April 1987 until the Respondent shut the Putnam
mill in late 1989, complying with the terms and conditions
of employment under the collective-bargaining agreement
until the Respondent’s unilateral actions in November 1989.
As regards the above, see NLRB v. Burns Security Service,
supra; Fall River Dyeing Corp. v. NLRB, supra; Petoskey
Geriatric Village, 295 NLRB 800 (1989); Goldin-Feldman,
Inc., 295 NLRB 359 (1989).
2. Unilateral changes in terms and conditions
of employment
The consolidated complaint alleges that the Respondent
violated Section 8(a)(1) and (5) of the Act by unilaterally
and without affording the Union an opportunity to negotiate
and bargain as the exclusive representative of the Respond-
ent’s employees in an appropriate unit and made the fol-
lowing changes in employment conditions: reduced employ-
ees wages; eliminated its severance plan and SUB plan; al-
tered the vacation time for employees with 5 or more years
of experience to a maximum of 3 weeks; reduced its medical
insurance contributions; and reduced its life insurance pay-
ments to retirees. Although the Respondent admits making
such unilateral changes in wages and other terms and condi-
tions of employment, it denies that such actions violated the
Act.
The law is well established that unilateral changes of
wages, hours, and other terms and conditions of employment
by an employer obligated to bargain with the representative
of its employees in an appropriate unit violates Section
8(a)(5) of the Act. NLRB v. Katz, 369 U.S. 736 (1962);
Marriot In-Flite Service, 258 NLRB 755 fn. 2 (1981). As the
Supreme Court of the United States held in NLRB v. Katz,
supra, ‘‘[A]n employer’s unilateral change in conditions of
employment under negotiation’’ is tantamount to a ‘‘refusal
to negotiate in fact.’’ Absent a valid, preexisting impasse, or
the consent of the union, an employer, during the course of
negotiations, is not free to implement proposed changes or
those tentatively agreed to by the parties. Greshen Transfer,
272 NLRB 484 (1984); Huck Mfg. Co. v. NLRB, 693 F.2d
1176 (5th Cir. 1982).
Furthermore, it is well settled that on the expiration of a
collective-bargaining agreement the law imposes a continuing
duty on both parties to attempt in good faith to reach a new
agreement and therefore an employer may not unilaterally
alter the terms and conditions of employment set forth there,
as relates to mandatory subjects of bargaining, in the absence
of an impasse in negotiations. Taurus Waste Disposal, 263
NLRB 309 (1982). As stated by the Board in SAC Construc-
tion Co., 235 NLRB 1211, 1218 (1978), ‘‘Benefits such as
payments into health, welfare and pension funds on behalf of
employees, constitute an aspect of their wages and a term
and condition of employment which, along with wage rates,
survive the expiration of a collective bargaining agreement
and cannot be altered without bargaining. Harold W. Hinson,
d/b/a Hen House Market No. 3, 175 NLRB 596 (1969), enfd.
428 F.2d 133 (C.A. 8, 1970).’’
In Taft Broadcasting Co., 163 NLRB 475 (1967), enfd.
sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622
(D.C. Cir. 1968), the Board listed the relevant factors to be
considered in determining whether or not an impasse existed,
stating:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there
is agreement, the contemporaneous understanding of the
parties as to the state of the negotiations are all relevant
factors to be considered in deciding whether an impasse
in bargaining existed.
A genuine impasse in negotiation exists only when the
parties have exhausted all avenues for reaching agreement
and there is ‘‘no realistic possibility that continuation of dis-
cussion at that time would have been fruitful.’’ Taft Broad-
casting Co., supra, 395 F.2d at 628. And in Patrick & Co.,
248 NLRB 390 (1980), enfd. mem. 644 F.2d 889 (9th Cir.
1981), the Board held that for an impasse to be found, the
parties must have reached ‘‘that point of time in negotiations
when the parties are warranted in assuming that further bar-
gaining would be futile.’’ Additionally, a party’s declaration
that an impasse has occurred will not be dispositive in deter-
mining whether one does indeed exist—all of the cir-
cumstances of the case must be analyzed. Huck Mfg. Co v.
NLRB, supra; Teamsters Local 175 v. NLRB, 788 F.2d 27
(D.C. Cir. 1986).
Applying the above principles to the facts in this case, I
find that the parties had not reached impasse in bargaining
when the Respondent unilaterally implemented changes in
wages and terms and conditions of employment of its em-
ployees. The evidence clearly shows that both parties had
made some movement on various issues during the seven ne-
gotiation sessions engaged in. In this regard, the Respondent
had agreed to the Union’s holidays proposal, withdrawing its
own proposal on this issue, and agreed to abide by any
changes in the law regarding pension plans. The Union, on
the other hand, agreed to the Respondent’s language pro-
posals; offered counterproposals on health insurance con-
tributions, vacations, life insurance, and wages; agreed to a
3-year term for the new bargaining contract; and offered to
work out an agreement to eliminate the severance plan if the
Respondent would agree to do so over a period of time. Ad-
ditionally, the Union consistently and continuously advised
the Respondent of its willingness to be ‘‘flexible,’’ to give
on the issues remaining in dispute as well as expressing its
desire and availability to meet with the Respondent in an en-
deavor to reach agreement on a new contract.
Also it is clear that there was no contemporaneous under-
standing by both parties that they had reached impasse. The
Respondent’s self-serving view that impasse had been
reached is not determinative nor is it supported by the record
evidence. The Union informed the Respondent specifically at
the November 10, 1989 bargaining session that in no way
had an impasse been reached in the negotiations and main-
tained this position thereafter by continuing to assert its will-
ingness to be ‘‘flexible’’ regarding the remaining unresolved
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issues and its availability to meet with the Respondent to
continue negotiations to reach agreement on a new contract.
Moreover, the Respondent’s willingness to continue negotia-
tions as reflected in its letter of November 15, 1989, would
mitigate against its contention that it implemented the unilat-
eral changes in working conditions because the parties had
reached an impasse, since the changes become effective No-
vember 10, 1989. Furthermore, the Union filed unfair labor
practice charges against the Respondent concerning the uni-
lateral changes, fairly soon after their implementation.
Harrah’s Marina Hotel & Casino, 296 NLRB 1116 (1989).
Accordingly, I do not find that the parties had reached a
point in the negotiations at which there was ‘‘no realistic
possibility that continuation of discussion at that time would
have been fruitful.’’ Television Artists AFTRA v. NLRB, 395
F.2d 622 (D.C. 1968); Sacramento Union, 291 NLRB 552
(1988).
Under the circumstances of this case, it also appears that
the Respondent’s true bargaining objective in the negotia-
tions was to implement its own terms and conditions of em-
ployment rather than to reach agreement with the Union.
This conclusion is demonstrated by the fact that on Novem-
ber 19, 1989, prior to the commencement of the negotiation
meeting scheduled for that day, Marsh instructed Levesque
to prepare a letter informing the Union of the implementation
of its last proposal to be offered the Union during this meet-
ing regarding terms and conditions of employment for return-
ing employees, this letter and the Respondent’s Proposal #3
then being given to the Union later that day; by the fact that
subsequently, by letter dated November 15, 1989, the Re-
spondent agreed to continue negotiations for a new contract
but refused to withdraw the unilateral changes it had made
in employee’s working conditions; and by the fact that the
Respondent showed a general lack of intent to seriously ne-
gotiate with the Union by designating an individual,
Levesque, as its bargaining representative who did not have
the authority to negotiate or consummate a collective bar-
gaining agreement with the Union, as will be more fully dis-
cussed hereinafter.
The right to be consulted concerning unilateral changes in
the terms and conditions of employment is a right given by
statute and not one obtained by contract and thus in order
to establish a waiver of such statutory right, there must he
a showing of a clear relinquishment of the right. Metropoli-
tan Edison v. NLRB, 460 U.S. 693 (1983); McDonnell Doug-
las Corp., 224 NLRB 881 (1976). Before a waiver of the
duty to bargain will be found, there must be ‘‘clear and un-
mistakable’’ evidence of the parties’ intent to waive this
right. Columbus & Southern Ohio Electric Co., 270 NLRB
686 (1984). Relevant to such a finding of waiver are such
things as the terms of the collective-bargaining agreement,
the evidence of the negotiations which resulted in the agree-
ment, and whether there has been acquiescence by one of the
parties. McDonnell Douglas Corp., supra at 895.
I do not find in the circumstances of this case that the
Union clearly and unmistakably waived its right to bargain
in connection with the unilateral changes made by the Re-
spondent in the terms and conditions of employment of its
employees. Moreover, the Respondent failed to offer any evi-
dence in support of a defense of waiver. Although the Union
permitted employees Livengood and Sarette to return to work
under the unilaterally changed and implemented terms and
conditions of employment, this does not establish that the
Union waived its bargaining rights thereon because the
Union specifically raised objections to the Respondent’s ac-
tion in this regard in its letter of November 13, 1989, to the
Respondent. Additionally, Livengood’s refusal to sign the
Respondent’s letter of November 10, 1989, until Levesque
changed the wording to reflect that the Union was merely ac-
knowledging receipt of the letter and its annexed ‘‘Company
Proposal #3’’ rather than accepting the terms set forth there,
reinforces the conclusion that the Union did not waive its
right to bargain.
Finally, the Respondent’s assertion of economic justifica-
tion, even if based on proven objective facts, would not ex-
cuse the Respondent from its statutory obligation to bargain
with the Union. Mike O’Connor Chevrolet, 209 NLRB 701
(1974), enf. denied on other grounds 512 F.2d 684 (8th Cir.
1975); NLRB v. Allied Products Corp., 548 F.2d 644 (6th
Cir. 1977). As the Board stated in Venture Packaging, 294
NLRB 544 at fn. 2 (1989):
With respect to the Respondent’s reliance on the
‘‘compelling economic considerations’’ exception, stat-
ed in dictum in Mike O’Connor Chevrolet [supra], we
find that the Respondent’s assertions of economic
losses, even if credited, do not constitute ‘‘compelling
economic considerations’’ that would excuse the Re-
spondent from failing to offer to bargain with the
Union over the various changes in the terms and condi-
tions of employment that were alleged here as unlawful
unilateral actions.
From all of the above, I find and conclude that the Re-
spondent, in violation of Section 8(a)(5) and (1) of the Act,
engaged in bad-faith bargaining and unilaterally implemented
its contract offer without a genuine impasse being reached,
and without the Union’s waiver of its right to be consulted
with and to bargain thereon, and without there being present
any other lawful reason permitting the Respondent to imple-
ment the changes in wages and other terms and conditions
of employment of its employees unilaterally, as it did.
3. Failure to make employee insurance plan
premium payments
The consolidated complaint alleges that since on or about
September 1, 1989, the Respondent failed to continue in full
force and effect the terms and conditions of its collective-
bargaining agreement with the Union, by failing to make
contractually required premium payments to the employees’
insurance plan in violation of Section 8(a)(1) and (5) and
Section 8(d) of the Act. The Respondent denies this allega-
tion.
The evidence shows that the Respondent was obligated
under the terms of the collective-bargaining agreement to
maintain a health insurance plan for its employees. The
record also shows that the Respondent was experiencing
some difficulty in making premium payments on the health
insurance plan from time to time which affected the payment
of benefits to employees. The Respondent’s failure to make
such payments eventually led to the cancellation of the health
insurance policy by the carrier as of September 1, 1989. The
Respondent failed to inform the Union of its failure to make
the premium payments until December 1989, when con-
525WYCOFF STEEL
fronted by the Union with unpaid employee health insurance
claims the Respondent sent a letter to employees informing
them of the situation. At no point during the negotiations or
at any other time did the Respondent attempt to inform or
bargain with the Union regarding its failure to make the re-
quired health insurance premium, payments.
The Respondent asserts in its brief as a defense a lack of
proof to sustain the allegations in the complaint, in the fact
that the health insurance plan was canceled after the expira-
tion of the bargaining agreement and any extensions thereof,
and that the failure to pay premiums on the health insurance
plan was caused by ‘‘economic disaster, namely, an inability
to pay.’’
In Cauthorne Trucking, 256 NLRB 721 (1981), the Board
held that:
[H]ealth and welfare and pension fund plans which are
part of an expired contract constitute an aspect of em-
ployee wages and a term and condition of employment
which survives the expiration of the contract. Thus, an
employer may not unilaterally alter payments into such
plans unless: (1) the changes are made subsequent to
the parties’ reaching a bargaining impasse, (2) . . . the
union did not represent a majority of the unit employ-
ees or that the employer has a good faith doubt, based
on objective considerations, of the union’s continuing
majority status, or (3) the union has waived its right to
bargain regarding the changes.
As discussed here before, neither impasse nor union waiver
is present, and the Respondent raises no issue regarding the
Union’s majority status here. The evidence in the record
clearly shows that the Respondent unilaterally and in viola-
tion of its contract failed to maintain health insurance bene-
fits payments for its employees. The Respondent argues in
its brief that economic necessity caused its action in this re-
gard rather than any intended violation of the Act. However,
as the Board stated in Flood City Brass & Pump Co., 296
NLRB No. 28 (Aug. 22, 1989) (not reported in Board vol-
umes):
Neither a claim of economic necessity nor a lack of
subjective bad faith intent, even if proven, constitutes
an adequate defense to an allegation that an employer
has violated Section 8(a)(5) of the Act by failing to
abide by provisions of a collective-bargaining agree-
ment. International Distribution Centers, 281 NLRB
742, 743 (198); Westinghouse Electric Corp., 278
NLRB 424, 432 (1986).
I also reject the Respondent’s contention that ‘‘This allega-
tion must fall for lack of proof,’’ in view of the record evi-
dence here.
Based on the above, I find and conclude that the Respond-
ent violated Section 8(a)(1) and (5) and Section 8(d) of the
Act by its failure to make the contractually mandated em-
ployee health insurance plan payments. Flood City Brass,
supra; Parkview Furniture Mfg. Co., 284 NLRB 917, 972
(1987).
4. Designation of a bargaining representative
The consolidated complaint alleges that the Respondent
has failed and refused to bargain collectively and in good
faith with the Union, engaging in unfair labor practices with-
in the meaning of Section 8(a) (1) and (5) of the Act by des-
ignating an individual as its bargaining representative who
did not have the authority to negotiate or consummate a col-
lective-bargaining agreement with the Union, and by inten-
tionally misinforming the Union as to such bargaining rep-
resentatives’ authority. The Respondent denies these allega-
tions.
Section 8(d) of the Act defines the duty to bargain collec-
tively as ‘‘the mutual obligation . . . to meet at reasonable
times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment, or the nego-
tiation of an agreement.’’ Such obligation does not compel
either party to agree to a proposal or to make a concession.
NLRB v. American National Insurance Co., 343 U.S. 395
(1952). The essential element in the bargaining principle is
the serious intent of the parties to reach a common ground.
Romo Paper Products Corp., 220 NLRB 519 (1975). A de-
termination of whether a respondent has met the good-faith
bargaining standard requires consideration of the totality of
the respondent’s conduct. NLRB v. Insurance Agents, 361
U.S. 477 (1960); M.R. & R. Trucking Co., 178 NLRB 167
(1969), enfd. in part 431 F.2d 689 (5th Cir. 1970).
The duty to bargain includes the obligation to appoint a
negotiator with real authority to negotiate and carry on mean-
ingful bargaining regarding fundamental issues. National
Amusements, 155 NLRB 1200 (1965). However, although an
employer is not required to be represented by an individual
possessing final authority to enter into an agreement, this is
subject to a limitation that it does not act to inhibit the
progress of negotiations. Carpenters Local 1780, 244 NLRB
277 (1979). The degree of authority possessed by the nego-
tiator is a factor which may be considered in determining
good-faith bargaining. Lloyd A. Fry Roofing Co. v. NLRB,
216 F.2d 273 (9th Cir. 1954).
In the instant case the undisputed evidence here clearly es-
tablishes that Levesque had no authority to negotiate in any
meaningful way with the Union during contract negotiations.
Levesque, with no experience in negotiating collective-bar-
gaining agreements, was instructed not to make any decisions
or to offer any contract proposals to the Union unless first
cleared through Marsh and ‘‘New York.’’ In this connection
Levesque was required to obtain instructions and approval on
every contract proposal or issue arising at the negotiation
meetings, whether generated by the Respondent or the
Union, which at times resulted in the parties having to wait
several hours during which no bargaining was engaged in
and/or the adjournment of the negotiation session pre-
maturely because no response was received from Marsh and
‘‘New York’’ regarding the Union’s proposals. Before
Levesque could take any course of action at the negotiations,
it had to be discussed and decided on by Marsh, Shaffer, and
Lorch. In fact, the evidence here shows that Levesque took
no independent action or made any decision, tentative or oth-
erwise, on her own at the negotiations.
Moreover, the Respondent then further frustrated the bar-
gaining process by instructing Levesque to mislead the
Union about her role in the negotiations by misinforming
them that she had from the outset full authority to negotiate
a new collective-bargaining agreement. Additionally, it
should be noted that after Levesque apprised the Union at the
initial negotiation session that she had no authority to ap-
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prove any contract proposals and that the negotiations would
be conducted through Chicago and New York, the Union ob-
jected to this arrangement stating at this meeting and on sev-
eral occasions thereafter that the Respondent should have
someone present at the negotiations who could make deci-
sions.
As previously found here, the Respondent violated the Act
by unilaterally changing the terms and conditions of employ-
ment of its employees thereby frustrating the bargaining
process, and in this case disclosing the Respondent’s bad
faith and ‘‘unwillingness to agree with the Union.’’ NLRB v.
Katz, supra. The Respondent’s additional action in assigning
an agent to represent it in bargaining who had no power or
authority to negotiate but only to carry messages to the
Union, when considered with its unlawful unilateral changes
in employees terms and conditions of employment evidences
the Respondent’s refusal to bargain in good faith as alleged.
From all of the above, I find and conclude that the Re-
spondent engaged in dilatory and evasive bargaining tactics
by failing and refusing to designate a representative in nego-
tiations with full authority to enter into a final and binding
collective-bargaining agreement and by such conduct taken
with its action in misleading the Union as to the subsequent
authority of such agent, the Respondent violated Section
8(a)(1) and (5) of the Act. National Amusements, supra; Jef-
frey Stone Co., 173 NLRB 11 (1968); U.S. Gypsum Co., 200
NLRB 1098 (1972); Carpenters Local 1780, 244 NLRB 277
(1979); Maywood Do-Nut Co., 248 NLRB 529 (1980); Bed-
ford Farmers Cooperative, 259 NLRB 1226 (1982).
5. Due process
Lastly, the Respondent asserts in its brief that:
A full and fair hearing was denied to Respondent by
the denial to Respondent of the personal notes of
Levesque and other documents in her exclusive posses-
sion with regard to the negotiations so that Respond-
ent’s due process rights were violated.
I do not agree.
The record evidence here shows that although Levesque
was the Respondent’s ‘‘sole representative for the on-site ne-
gotiations with the Union,’’ in fact she had no authority to
negotiate for the Respondent. Levesque was specifically in-
structed to consult with Marsh and Lorch as to any action
undertaken at the negotiation meetings, and was required to
communicate each and every action occurring at these meet-
ings by FAX and/or telephone to Marsh whether engaged in
by the Union or the Respondent. Thus, even though
Levesque took ‘‘all her notes and other documents regarding
the negotiations’’ from her ‘‘personal file’’ upon termination,
at least as regards the documents FAX’d between she and
Marsh, and Marsh and New York, it is reasonable to assume
that the Respondent had in its possession copies thereof.
Moreover, according to the credited testimony of Levesque,
any notes she took at the negotiations were the basis for the
material FAX’d to Marsh and subsequently Lorch and again
such information contained therein could reasonably be pre-
sumed to be within the Respondent’s possession and knowl-
edge.
Significantly, the Respondent failed to offer any evidence,
either by witnesses’ testimony or by documentary proof, that
Levesque had failed to testify truthfully or factually regard-
ing what occurred at the negotiation meetings. Moreover, the
Respondent’s failure to call either Marsh, Shaffer, or Lorch
weighs heavily against its position on this issue. In view of
the circumstances present in this case, it is clear that the Re-
spondent’s request to view Levesque’s notes was nothing
more than a ‘‘fishing expedition.’’
Furthermore, where the notes of a witness are not used on
the stand but are used by the witness to refresh her recollec-
tion prior to testifying, as occurred in the instant case, wheth-
er the production of such notes are required is within the dis-
cretion of the trial judge. Goldman v. U.S., 316 U.S. 129
(1942); Fed.R.Evid. 612(B). Where ‘‘the interests of justice
so require’’ the notes should be made available to the ad-
verse party on request. In Cosden Oil v. Karl O. Helm
Aktiengesellschoft, 736 F.2d 1064, 1076–1077 (5th Cir.
1984), the United States Court of Appeals for the Fifth Cir-
cuit held that ‘‘the interests of justice’’ did not require the
production of a witnesses notes for purposes of inspection or
cross-examination where the witness did not refer to these
notes during his testimony. In Cosden Oil, a witness used a
summary of his deposition and notes to refresh his recollec-
tion prior to testifying. The trial court refused to allow the
opposing party access to the writings on request. The court
of appeals found this not to be an abuse of the trial court’s
discretion or an erroneous ruling.
From all of the above, I find and conclude that ‘‘the inter-
ests of justice’’ did not require the production of Levesque’s
notes for purposes of inspection or cross-examination be-
cause she did not refer to them while testifying. I therefore
do not find that such ruling was prejudicial to the Respond-
ent’s due-process right to a full and fair hearing.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operations of the Respondent described
in section I, above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act by engaging in the unlawful conduct de-
scribed above, I would normally recommend that the Re-
spondent be ordered to designate an individual as its bar-
gaining representative who had the authority to negotiate and
consummate a collective-bargaining agreement, then bargain
with the Union on request in good faith regarding terms and
conditions of employment of unit employees, and if an un-
derstanding is reached, embody such understanding in a
signed agreement; rescind the unilateral changes made in the
terms and conditions of its unit employees employment; and
make whole any unit employees for any loss they may have
suffered as a result of the unilateral changes unlawfully made
527WYCOFF STEEL
5 Where such acts have been alleged and been found to be unfair labor prac-
tices in violation of Sec. 8(a)(1) and (5) of the Act the Board has ordered as
part of the remedy there, that if the employer were to resume operations at
its closed facility, the employer be required to offer unit employees reinstate-
ment to their former jobs or, if those jobs no loner exist, to substantially
equivalent jobs, and to continue to recognize and bargain in good faith with
the union as the bargaining representative of its unit employees. P. J. Hamill
Transfer Co., 277 NLRB 462 (1985).
6 The question of whether the Respondent must pay any additional amounts
into the benefit funds in order to satisfy the make-whole remedy is left to the
compliance stage of these proceedings. Merryweather Optical Co., 240 NLRB
1213 (1979).
7 Ibid.
8 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 objec-
tions to them shall be deemed waived for all purposes.
by the Respondent in their wages and other terms and condi-
tions of employment. However, in this case the record evi-
dence indicates that the Respondent has closed down its Put-
nam mill, sold the machinery there, and no longer employs
any employees at this plant. The closing of the mill nor the
failure of the Respondent to bargain about the effects thereof
on unit employees has not been alleged to be an unfair labor
practice in violation of the Act.5
Therefore, I recommend that the Respondent be ordered to
rescind the unilateral changes it made in the terms and condi-
tions of employment of its unit employees and make whole
any unit employee employed by it at the Putnam mill, from
the time that it instituted such unilateral changes on Novem-
ber 13, 1989, to the time of their discontinuance of employ-
ment and/or the mill ceased its operations, under the terms
of the last collective-bargaining agreement between the Re-
spondent and the Union (effective May 1, 1986, through Oc-
tober 31, 1989).6 Any loss of earnings and benefits under the
order recommended here shall be computed in the manner
prescribed in Ogle Protection Service, 183 NLRB 682
(1970), with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that the Respondent violated Section 8(a)(5)
and (1) and Section 8(d) of the Act by failing and refusing
to make contractually required premium payments for the
employees’ insurance plan, I will recommend that the Re-
spondent be ordered to make whole the unit employees by
making all premium payments to the employees’ insurance
plan required by the above last collective-bargaining agree-
ment between the parties, which have not been paid up to
the time of the closing of the Putnam mill7 and by reimburs-
ing unit employees for any expenses ensuing from the Re-
spondent’s failure to make such required payments as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). See W. A.
Krueger Co., 299 NLRB 914 (1990).
Additionally, because the Respondent has ceased its oper-
ations at the Putnam mill, with all employees laid off or ter-
minated, I shall recommend that the Respondent be ordered
to mail a copy of the notice (Appendix A) to all unit em-
ployees including William Livengood and Roger Sarette.
P. J. Hamill Transfer Co., 277 NLRB 462 (1985); Bench-
mark Industries, 269 NLRB 1096 (1984).
Because of the nature of the unfair labor practices found
here, and in order to make effective the interdependent guar-
antees of Section 7 of the Act, I recommend that the Re-
spondent be ordered to refrain from in any like or related
manner abridging any of the rights guaranteed employees by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Wyckoff Steel, Inc., is now and has
been at all times an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Steelworkers of America, AFL–CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. All employees employed by the Respondent at its Put-
nam, Connecticut mill, excluding supervisors, foremen, office
managers, salesmen, watchmen, guards, and executives con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been and is the ex-
clusive bargaining representative of all the employees within
the above-described appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(a) of the
Act.
5. By failing and refusing to bargain collectively and in
good faith with the Union, by unilaterally implementing
changes in the terms and conditions of employment as set
forth here without notice and bargaining with the Union, and
by designating an individual as its bargaining representative
who did not have the authority to negotiate or consummate
a collective-bargaining agreement with the Union, the Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
6. By failing to make contractually required premium pay-
ments to the employees’ insurance plan, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) and Section 8(d) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Wyckoff Steel, Inc., Putnam, Con-
necticut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith, on
request, concerning rates of pay, wages, hours, and other
terms and conditions of employment with the Union, as the
exclusive bargaining representative of its employees in an
appropriate unit by unilaterally implementing changes in
terms and conditions of employment of its employees with-
out notice to the Union or affording the Union the oppor-
tunity to bargain thereon, and by designating an individual
as its bargaining representative who does not have the au-
thority to negotiate or consummate a collective-bargaining
agreement with the Union.
(b) Failing and refusing to make contractually required
premium payments to the employees’ insurance plan.
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, rescind the unilateral changes in terms and
conditions of employment as set forth here and make its em-
ployees whole for any loss of pay they may have suffered
as a result of such changes with interest, as provided for in
the remedy section of this decision.
(b) Make the contractually required premium payments to
the employees’ insurance plan and make whole unit employ-
ees for any loss they may have suffered as a result of the
Respondent’s failure to have done so, with interest, all in the
manner set forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Sign and mail a copy of the attached notice marked,
‘‘Appendix.’’9 to the Union and to the last known address
of all employees employed in the unit described above. Cop-
ies of the notice, on forms provided by the Regional Director
for Region 34, after being signed by the Respondent’s au-
thorized representative, shall be mailed immediately upon re-
ceipt by the Respondent as directed above.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to mail and abide by this notice.
WE WILL NOT refuse to bargain collectively and in good
faith with the Union by unilaterally implementing changes in
terms and conditions of employment without notice to the
Union or affording the Union the opportunity to bargain
thereon, and by designating as our bargaining representative
any individual who does not have the authority to negotiate
or consummate a collective-bargaining agreement.
WE WILL NOT fail or refuse to make contractually required
premium payments to the employees’ insurance plan.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you in Section 7 of the Act.
WE WILL rescind the unlawful unilateral changes made in
the terms and conditions of employment of our unit employ-
ees and make them whole for any loss they may have suf-
fered as a result of such unilateral changes, with interest.
WE WILL make whole our unit employees by transmitting
the premium payments to the employees’ insurance fund, as
required by the collective-bargaining agreement, and by re-
imbursing our employees for any expense ensuing from our
failure to make such payments.
WYCKOFF STEEL, INC.