Industrial Chrome Co.

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 79 (N.L.R.B. 1992)

79
306 NLRB No. 15
INDUSTRIAL CHROME CO.
1 The judge found that it was not until April 2, 1990, that the Re-
spondent advised the Union that it found the seniority language to
be unacceptable. The record shows, instead, that Respondent’s coun-
sel, Larry Karns, by letter dated March 13, 1990, sent to Local
Union President Tony Stattelman a copy of Karns’ letter to company
official Ellis Needham dated March 12, 1990, indicating that the Re-
spondent did not agree to certain provisions of the Union’s seniority
proposal. The judge’s error as to the precise date on which the Re-
spondent notified the Union of its disagreement with the Union’s se-
niority proposal does not affect our conclusion, in agreement with
the judge, that the parties had reached tentative agreement on the se-
niority issue on January 16, 1990, and that on April 2, 1990, the Re-
spondent proposed an entirely different seniority proposal for the
purpose of forestalling agreement on a contract.
2 We shall modify the recommended Order to include specific af-
firmative language extending the certification year for a period of 6
months upon the resumption of bargaining. We conclude that a 6-
week extension of time, as urged by the Respondent, would be in-
sufficient for the parties to undertake fruitful negotiations after the
passage of approximately 1-1/2 years. On the other hand, a full-year
extension, as argued by the General Counsel, would be inappro-
priate, since the parties had bargained for several months and had
reached tentative agreement on key areas. Accordingly, a 6-month
extension properly takes into account the realities of collective-bar-
gaining negotiations by providing a reasonable period of time for ne-
gotiations without unduly saddling the employees for an entire year
with a bargaining representative that they may no longer wish to
have represent them. See Den-Tal-EZ, Inc., 303 NLRB 968 fn. 2
(1991); Colfor, Inc., 282 NLRB 1173, 1174–1175 (1987).
The judge also recommended broad injunctive relief requiring the
Respondent to cease and desist ‘‘in any other manner’’ from inter-
fering with, restraining, or coercing employees in the exercise of
their Sec. 7 rights. We note that the General Counsel did not seek
a broad cease-and-desist order. We find that a narrow order is appro-
priate because the Respondent has not been shown to have a pro-
clivity to violate the Act or a general disregard for employees’ fun-
damental statutory rights. See Hickmott Foods, 242 NLRB 1357
(1979). Accordingly, we shall modify the recommended Order and
notice.
Industrial Chrome Company, Inc. and United Rub-
ber, Cork, Linoleum and Plastic Workers of
America, Local Union 307, AFL–CIO, affiliated
with United Rubber, Cork, Linoleum and Plas-
tic Workers of America International Union.
Case 17–CA–14963
January 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 8, 1991, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified, and to adopt the recommended
Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Indus-
trial Chrome Company, Inc., Topeka, Kansas, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Recognize the Union upon resumption of bar-
gaining in good faith and for 6 months thereafter as if
the initial year of certification has been extended for
an additional 6 months from the commencement of
bargaining pursuant to the Board’s Order in this case
and, if an understanding is reached, embody it in a
written, signed agreement.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain in good faith with
United Rubber, Cork, Linoleum and Plastic Workers of
America, Local Union 307, AFL–CIO as the duly des-
ignated representative of our employees in the fol-
lowing unit appropriate for purposes of collective bar-
gaining:
All full-time and regular part-time production and
maintenance employees employed by the Em-
ployer at its facility located at 843 N.E. Madison,
Topeka, Kansas, but excluding office clerical em-
ployees, professional employees, part-time jani-
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Prior to the hearing, the parties entered into a settlement agree-
ment regarding one of the allegations of the complaint which alleged
the unilateral layoff of employees without notification and bar-
gaining. At the outset of the hearing the General Counsel withdrew
this allegation of the complaint.
tors, guards, and supervisors within the meaning
of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the last wage proposal which we
made on March 29, 1990, and the last seniority pro-
posal which we made on April 9, 1990.
WE WILL bargain, upon request, with the Union as
the duly designated representative of our employees in
the above-described appropriate unit for collective bar-
gaining.
WE WILL regard the Union as the exclusive bar-
gaining representative of the employees in the above-
described appropriate unit as if the Union’s initial year
of certification has been extended for an additional 6
months from the commencement of bargaining pursu-
ant to the Board’s Order in this case. If an under-
standing is reached, WE WILL embody it in a written,
signed agreement.
INDUSTRIAL CHROME COMPANY, INC.
Stanley D. Williams, Esq., for the General Counsel.
Larry G. Karns, Esq. (Glenn, Cornish, Hanson & Karns), of
Topeka, Kansas, for the Respondent.
Donald D. Northcraft, vice president of Local 307, of To-
peka, Kansas, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Topeka, Kansas, on November 14 and 15, 1990. The
charge was filed by United Rubber, Cork, Linoleum and
Plastic Workers of America, Local Union 307, AFL–CIO, af-
filiated with United Rubber, Cork, Linoleum and Plastic
Workers of America International Union (the Union), on
April 19, 1990. The charge was amended on June 12, 1990.
Thereafter, on June 12, 1990, the Regional Director for Re-
gion 17 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing alleging a violation
by Industrial Chrome Company, Inc. (the Respondent) of
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended (the Act).1
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from the General Counsel and counsel
for the Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with its principal place of
business located in Topeka, Kansas, and is engaged in the
business of fabricating and chroming hydraulic shafts and re-
lated items. In the course and conduct of its business oper-
ations, the Respondent annually purchases and receives
goods and materials valued in excess of $50,000 directly
from suppliers located outside the State of California.
It is admitted, and I find, that the Respondent is now, and
at all material times has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and at all ma-
terial times has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether the
Respondent has violated Section 8(a)(1) and (5) of the Act
by engaging in surface bargaining and otherwise refusing to
bargain in good faith with the Union as the certified collec-
tive-bargaining representative of its employees.
B. The Facts
On May 17, 1989, the Union was certified as the exclusive
collective-bargaining representative of the Respondent’s full-
time and regular part-time production and maintenance em-
ployees. The employee complement consists of about 40 em-
ployees.
Negotiations for an initial contract commenced shortly
thereafter. The Union’s negotiators were Donald Northcraft,
vice president of Local 307, and Ronald Hoover, field rep-
resentative; Respondent’s principal negotiator was Larry
Karns, attorney, and he was assisted by Respondent’s ma-
chine shop supervisor, John Alejos.
During the first several bargaining sessions the Respondent
quizzed the union committee about why the employees had
decided to organize, and the Union was advised that the Re-
spondent’s principal owner, Don Johnson, who did not attend
any bargaining sessions, was totally bewildered as to why the
employees has selected a union to represent them. The Re-
spondent also stated that it did not appear that the Union was
in a good bargaining position, and Karns said that he did not
believe the Union had any strength within the skilled jobs,
but rather that the people most involved with the Union were
the general laborers.
During the initial negotiating session which was held on
June 28, 1989, the parties discussed their negotiating prior-
ities. The Union requested the wage rates and job classifica-
tion of each of the unit employees. Karns initially took the
position that he wasn’t sure he had to provide this informa-
tion to the Union. On another occasion he told the Union
that he had the requested information in his briefcase, but re-
fused to furnish it. Eventually, after repeated requests on at
81INDUSTRIAL CHROME CO.
least three negotiating sessions, certain wage information was
furnished; however, it was inaccurate.
The parties also discussed the fact that the Respondent’s
owners had become accustomed over the years to deal with
its employees on an individual basis; that there were no well-
defined job classifications; that principles of seniority were
not observed; and that there was a significant problem with
extreme wage differentials among employees performing the
same work. This latter concern was compounded by the fact
that the employees who were earning the higher rates of pay
were relatives of management.
Karns, during the course of posing questions to Northcraft
at the hearing, established that at the outset of negotiations
the parties were in agreement that the Respondent was unso-
phisticated in terms of labor-management relations, and had
its own way of running the shop, and that no rational sense
could be made out of the wage rates that were then in effect
and which varied as much as $4 per hour for employees
working side by side performing the same work.
It became necessary, therefore, to establish job categories
so that employees could be categorized according to their
skills, thus facilitating the discussions on wage increases.
The Respondent stated that it wanted to place the employees
in three different categories, namely, skilled, semiskilled, and
general labor. This was satisfactory to the Union, and the
Union’s proposals utilized these categories of employees.
Further, the parties had spent a considerable amount of time
determining which particular job classifications fell within
each category.
The Respondent’s first proposal presented to the Union on
August 16, 1989, specified three categories of jobs, namely,
skilled jobs, semiskilled jobs, and general labor jobs. This
was consistent with prior discussions during the negotiations.
However, opposite some of the job classifications within two
of the three aforementioned categories, namely, semiskilled
jobs and general labor jobs, the Respondent placed the letters
‘‘(A)’’ and/or ‘‘(B),’’ apparently to denote two different lev-
els within the classification. Thus, for example, under semi-
skilled jobs, the Respondents proposed ‘‘Lathe Polisher (A)
and (B).’’ These job levels had never been previously dis-
cussed, and Karns explained that the Respondent wanted the
right to evaluate or grade employees within different classi-
fications; however, according to Northcraft, Karns said he
was not certain how the grading system would be imple-
mented.
The Union took the position that it was not interested in
such a grading system within the proposed classifications, as
this proposal appeared to lend itself to a highly subjective
evaluation of employees which, because of the existing dis-
parity in wages of employees performing the same jobs
and/or the favoritism toward relatives of management, the
Union was attempting to eliminate. Thereafter, during ensu-
ing negotiating sessions, the parties’ discussions regarding
classifications simply involved the moving of some of the
classifications from one category to another. Although the
Respondent had not yet withdrawn its aforementioned pro-
posal designating different levels within the classifications,
there was no further discussion of this concept.
During the negotiating session of October 18, 1989, Karns
said that the Respondent was no longer looking at the A and
B designations, but rather ‘‘was heading in a new direction.’’
He handed the Union a new proposal which combined the
skilled and semiskilled categories into a single category enti-
tled ‘‘skilled and semi-skilled jobs,’’ and retained the ‘‘gen-
eral labor jobs’’ category. However, within the proposal, the
Respondent maintained the three-category distinction, listing
the job classifications under the three aforementioned sepa-
rate headings. Twenty separate job classifications were listed.
The next day, October 19, 1989, the Respondent identified
the employees by name within each of the three categories,
and listed current pay and proposed wage increases for the
employees. Employee members of the Union’s bargaining
committee pointed out to the Respondent that the specified
current pay of some of the employees was not accurate. On
the next day the Respondent provided the Union with a simi-
lar proposal which contained accurate wage figures.
Northcraft testified that the single most important issue,
seniority, had previously been resolved after much discus-
sion, and that more time had been spent on that one subject
than any other. Northcraft emphasized that because of the
fact that relatives of management had been given preference
over other employees in the past, the matter of seniority in
connection with promotions, layoffs, and recalls was of the
utmost significance to the Union’s bargaining committee.
Northcraft testified that the parties finally reached tentative
agreement on seniority at the January 16, 1990 bargaining
session. Karns said the only thing left for him to do was to
‘‘run this by management.’’ Thereafter, the Union was never
advised that the seniority item was unacceptable to the Re-
spondent.
The agreed-on seniority provision is lengthy and complex,
and includes detailed procedures for identifying and selecting
employees for layoffs, bumping, recalls, filling of job vacan-
cies, and shift preference. Essentially, the seniority provision
provides that seniority, defined as continuous service with
the employer, will prevail, provided that the senior employee
is ‘‘qualified’’ to perform the job in question. The term
‘‘qualified’’ is defined as ‘‘having worked a cumulative time
on the classification equal in time to the learning period on
the job.’’ Thus, if a senior employee is qualified to perform
the job for which there is an opening due to any of the afore-
mentioned contingencies, the senior employee is entitled to
the job, regardless of the fact that some less senior employee
is perhaps ‘‘more qualified,’’ by reason of expertise or a
longer tenure within a particular classification.
After additional bargaining sessions, during which wages
and other issues were discussed, the parties met with a Fed-
eral mediator on February 20, 1990. The mediator asked each
side to prioritize the three most important outstanding issues,
and the parties agreed that the primary items of concern
were, in order of importance: the fact that temporary employ-
ees were continuing to work in the plant while regular em-
ployees were on layoff; health care; and wages of employees
within the skilled category.
Regarding the latter issue, namely, wages of employees
within the skilled category, the Union had advised the Re-
spondent that it accepted the Respondent’s January 16, 1990
proposal which embodied the three-category system and pro-
vided for wage increases for employees in each of the cat-
egories over the term of a 3-year contract; further, the Union
announced that it was willing to accept the wage increases
proposed for the employees in the general labor category and
the semiskilled category; and the only area of disagreement
was with the proposed wages for employees within the
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
skilled category. Karns advised the Union and the mediator
that the Respondent had gone as high as it intended to go,
and was unwilling to increase its wage proposal for the
skilled employees.
A considerable amount of bargaining over the health insur-
ance issue had taken place prior to the meeting with the me-
diator on February 20, 1990. The matter of health care was
of major importance, as the Respondent’s existing health care
plan provided that 40 percent of the monthly cost of the in-
surance would be paid by the employee. Because of the con-
siderable monthly cost to the employee, very few employees
elected to purchase insurance coverage. The Union attempted
to negotiate affordable medical insurance for the employees,
and initially proposed that the Respondent pay the entire cost
of the insurance. Karns said this would not be possible and
that the Respondent would pay no more than it had been
paying. However, during the course of negotiations, the Re-
spondent had agreed that it would pay 60 percent of any in-
creased costs of the insurance during the contract period up
to a maximum of a 10-percent increase in insurance costs.
At the February 20, 1990 meeting the Union advised the
mediator that it had previously requested that the Respondent
accept an alternative health insurance plan if the cost to the
Respondent did not increase the Respondent’s health insur-
ance costs beyond the increase the Respondent had indicated
it was willing to accept. The mediator asked Karns why this
would be unacceptable to the Respondent, and prevailed on
Karns to phone Johnson, Respondent’s owner, and ask him
if there was any objection to this.
Karns did phone Johnson in the presence of both the union
negotiating committee and the mediator, and, following the
phone call, announced that there would be no problem with
another health insurance plan ‘‘as long as it doesn’t affect
our bottom line.’’ During the ensuing discussions that day
Karns agreed that regardless of any savings derived from a
less expensive plan (the Union had proposed deleting the
dental coverage from the current plan, thus making the plan
less expensive) the Respondent would continue to contribute
the monthly amount it had been contributing, together with
the aforementioned additional amount of increased costs dur-
ing the life of the contract, and the savings would be utilized
to reduce the amount of the employees’ 40-percent contribu-
tion.
On March 3, 1990, the Respondent submitted a document
to the Union that, according to Northcraft, was identical to
the aforementioned seniority proposal that had tentatively
been agreed to earlier on January 16, 1990. It contained a
significant amount of underlining, and Northcraft testified
that Karns stated that the underlining was to insure that there
would not be any ambiguity as to the interpretation of the
provision. Northcraft testified that this caused the Union to
become very optimistic that the parties could reach agree-
ment on a complete contract within the next 8 or 10 days.
Bargaining negotiations were held throughout the week of
March 5, 1990, and on about March 9, 1990, the Union pre-
sented the Respondent with a wage proposal that provided
more money for the employees during the early months of
the proposed contract than the Respondent’s wage proposal,
but, according to the Union, would cost the Respondent some
$5000 to $6000 less than the Respondent’s proposal during
the life of the 3-year contract. Karns said that he would have
to figure out the costs, and that if it in fact totalled less than
the Respondent’s proposal he would not know why the Re-
spondent would object to it. It was believed that if the parties
reached agreement on wages, a tentative contract was immi-
nent, with relatively minor matters to be resolved thereafter.
Karns said he would review the wage proposal with his cli-
ent and would get back to the union committee that night.
The union committee waited for Karns’ call, but Karns never
responded.
On March 19, 1990, Union President Antony Stattleman
sent Karns a letter regarding certain contract items, and en-
closed the Union’s latest contract proposal which, it was be-
lieved, the Respondent had previously accepted. The union
proposal is as follows:
The current Health Insurance in effect on the signing of
this contract shall be maintained with the employer
paying 60% of the current cost of single or family cov-
erage and the employee paying 40% of the current cost
of single or family coverage for plan year 1990. The
parties agree to drop the dental portion of the plan with
the total cost savings to be applied to the employee’s
portion of the premium payment. The parties further
agree to examine the Blue Select concept and other via-
ble cost containment procedures for future plan years.
Any cost savings realized by the use of said programs
will be applied to the employee’s portion of premium
payment. The Company will pay 60% of up to a 10%
increase in premium during the term of this agreement.
Several days later Stattleman received a phone call from
Karns, who said that the Respondent did not like the Blue
Select plan, which was different than the current health in-
surance plan, and would be too difficult to administer and
too difficult for the employees to understand.
The next, and final, negotiating session was held on March
29, 1990. Northcraft testified that at the outset of this bar-
gaining session Karns presented the Union with an 8-page
handwritten wage proposal which provided for 4 different
‘‘pay grades’’ rather than the previously agreed-on 3 labor
categories, and which listed 26 job classifications within the
pay grades, rather than the previously agreed-on 20 job clas-
sifications. Karns also announced that there would be other
significant changes forthcoming. Northcraft testified as fol-
lows:
He [Karns] admitted at the table that our [wage] pro-
posal was less than theirs, significantly, but the com-
pany was now looking at a new direction, that the com-
pany had reviewed it and now they were not—no
longer looking at classifications, categories, they were
now looking at grades.
I have absolutely no comprehension of what grades
mean as I sit here today. It was never discussed at the
table before this time. We had spent the 10 or 12
months negotiating on classifications and categories;
and as I sit here today, I still don’t know what these
grades mean.
Mr. Karns informed us that this was just a direction
that the company preferred to go; and, when we asked
why after all this time and all the efforts that went into
this why, you know, this drastic, capricious change of
83INDUSTRIAL CHROME CO.
direction, he said just—the company just decided this
was a better direction to go.
Northcraft testified that he was ‘‘livid’’ on being presented
with this new concept as well as other changes which Karns
said would be forthcoming, and the negotiating session ap-
parently ended abruptly. Northcraft testified that Hoover be-
came so exasperated that he took the ‘‘proposal in front of
him’’ which apparently was the Respondent’s wage proposal,
and tore it in half and threw it in the wastepaper basket.
On April 2, 1990, Karns sent a new seniority proposal to
the Union, containing the subheadings of job vacancies, laid-
off employees, shift preference, and leaves of absences. With
regard to layoffs, the new proposal states that if further re-
ductions are necessary after new-hire probationary employees
are laid off within any particular classification, ‘‘employees
in the general labor classification’’ will be laid off. However,
under the Respondent’s new March 29, 1990 wage proposal
there is no ‘‘general labor classification,’’ as the Respondent
had substituted four ‘‘pay grades.’’ Further, under the layoff
procedure previously agreed to on January 16, 1990, ‘‘the
employee or employees with least seniority will be removed
from the classification [and] those affected employees will
have the option to go on lay-off, fill an open job or bump
the least senior employee in any classification of [sic] which
they are qualified.’’ Thus, although there is no explanation
in the record as to how the Respondent’s new proposal
would work, it is clear that the proposal is fundamentally dif-
ferent from what had been agreed to. Moreover, unlike the
agreed-on provision, the new proposal does not provide for
bumping rights; and, regarding the matter of filling job va-
cancies, the new proposal introduces the concept of ‘‘most
qualified’’ which it does not define and which differs materi-
ally from the previously agreed-on provision which provides
that a ‘‘qualified’’ employee with the most seniority, rather
than the ‘‘most qualified’’ employee, is entitled to the vacant
position.
At some point an employee apparently began circulating a
decertification petition among the unit employees. Northcraft
testified that during a negotiating session in early March
1990, when Northcraft believed the parties were getting close
to an agreement, Karns said that the Respondent ‘‘was, in
fact, looking at decertification.’’ On another occasion, during
a private conversation, Karns told Northcraft ‘‘that the com-
pany was of the opinion that [the Union] did not have the
numbers to substantiate a strike and that [the Respondent]
could win the decertification election.’’ Northcraft replied
that Karns was in error and was underestimating the Union’s
strength, but that if it came to a decertification election it
might be a close vote considering the layoffs and discharges
that had occurred during the course of bargaining. The decer-
tification petition was filed with the Regional Office on May
18, 1990, exactly 1 year from the date of certification.
Randy Terhune, a current employee of the Respondent and
a member of the Union’s negotiating committee, testified that
shortly after the Union was certified, he overheard John
Alejos, machine shop supervisor, talking to Don Johnson
about the Union in Johnson’s office. Terhune happened to be
in an adjoining office using some testing equipment. Terhune
heard Alejos telling Johnson that the Company ‘‘didn’t have
to bargain. All they had to do is sit, sit there and listen to
the proposals and not have to sign a contract.’’
Similarly, a former employee, Keith Van Sickle, testified
that in the early summer of 1989, shortly after the negotia-
tions had commenced, he and Alejos were having a discus-
sion about the Union. Alejos told him that:
[All] that the company had to do was sit there and they
didn’t have to agree to anything or listen to any, you
know, they had to listen, that was it.
They just had to sit there. Nothing else. Didn’t have to
agree on anything and they could basically just drag
this on as long as they wanted.
Alejos was present in the hearing room throughout the
hearing. Although he was called as a witness by the Re-
spondent, he did not rebut the testimony of Terhune or Van
Sickle. Moreover, although Alejos apparently attended all the
bargaining sessions, he was asked no questions regarding the
course of bargaining or the various respective proposals of
the parties, and did not rebut any of the foregoing testimony
of the various representatives of the Union.
Karns testified that the parties met on March 6, 7, 8, and
9, 1990, and that this was a critical point in negotiations as
the Respondent believed the Union was going to strike. In
fact, the Respondent had made arrangements for the security
of the plant believing that a strike was imminent, as he had
been told by either Northcraft, Hoover, or Stattleman that a
strike vote was being taken on March 9, 1990; and Hoover
had told him during a phone conversation on March 6, 1990,
that if there was no agreement or significant movement by
the end of the week, there would be a strike.
Karns testified that the seniority item had never been
agreed to and continued to be the subject of negotiations. He
did not believe that either the Respondent’s March 29, 1990
proposal specifying four pay grades, or its April 9, 1990 pro-
posal on seniority differed materially from the Respondent’s
prior proposals. Moreover, he did not explain the proposals
to the Union after submitting them because, ‘‘No one both-
ered to ask, and they refused to meet with us;’’ and he did
not discern that the members of the Union’s negotiating com-
mittee were particularly perplexed over the proposals. When
asked what motivated the Respondent to make such changes
in its wage and seniority proposals, Karns replied, ‘‘We
thought we were going to have the employees accept a con-
tract and we wanted a contract we could live with . . . we
thought we were close.’’ Karns was unable to recall whether,
on presenting the proposal at the March 29, 1990 meeting,
he said anything to the effect that by such a proposal the Re-
spondent wanted to go in a new direction. Further, Karns
was unable to recall whether he promised to get back to the
Union on the evening of March 9, 1990, after conferring
with his client, regarding the open contract items which were
then in issue.
Northcraft, Hoover, Stattleman, and Terhune denied that
they had told Karns that the Union intended to strike the Re-
spondent. Hoover testified that Karns phoned him and ques-
tioned him about a notice that had been posted on the bul-
letin board at Respondent’s plant. The notice was of a spe-
cial union meeting for ‘‘Union Members of Industrial
Chrome’’ to be held on Friday afternoon, March 9, 1990.
The notice states that ‘‘The purpose of this meeting is to re-
port on the status of negotiations and to decide a further
course of action to be taken including strike.’’ Hoover told
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I also credit the testimony of Terhune and Keith Van Sickle re-
garding the statements made by Alejos which reflect that, from the
outset, the Respondent had no intent of reaching an agreement with
the Union.
Karns that the notice contained standard language and that
the meeting was simply for the purpose of advising the mem-
bership of the status of negotiations and not to initiate strike
action. Hoover assured Karns that a strike was not imminent.
Analysis and Conclusions
I credit the testimony of Union Representatives Northcraft,
Hoover, and Stattleman, and bargaining committee member
Terhune. I find that their recollections of the collective-bar-
gaining negotiations, including the statements made by the
parties, the proposals presented, and the agreements or ten-
tative agreements reached, are supported by the record as a
whole and reflect an accurate account of the bargaining proc-
ess.2
I do not credit the testimony of Attorney Karns to the ex-
tent that it differs with that of the aforementioned individ-
uals. Karns’ testimony was not corroborated by any other
witnesses, and his recollection of the significant events in
question appeared to be highly selective and implausible. To
cite a glaring example, he was unable to recall whether he
told the Union, on March 29, 1990, that the wage proposal
he was presenting reflected the Respondent’s intent to move
in a ‘‘new direction.’’
I find that Karns did, in fact, so advise the Union, and that
the Respondent’s March 29, 1990 wage proposal and its sub-
sequent April 9, 1990 seniority proposal were significantly
different proposals from those that had previously been pre-
sented by the Respondent and/or the Union, and formulated,
discussed, and tentatively agreed to by the parties after many
bargaining sessions over a difficult 10-month period of bar-
gaining. Karns’ testimony to the effect that the Respondent
presented its new proposals because ‘‘We thought we were
going to have the employees accept a contract and we want-
ed a contract we could live with . . . we thought we were
close,’’ shows that the Respondent was fearful of reaching
an agreement which the Union could live with, and therefore
sought to preclude this eventuality by presenting its ‘‘new di-
rection’’ proposals. At this point it became clear to the
Union, as the record evidence abundantly demonstrates, that
although the Respondent claimed it was willing to continue
bargaining with the Union, the Respondent had no intention
of bargaining in good faith, but rather was intent on fore-
stalling any agreement because of the prospect of the
Union’s decertification at the conclusion of the certification
year, approximately 6 weeks in the future. Indeed, there ap-
pears to be no other plausible rationale for the Respondent’s
abrupt change of course at a time when the parties were ad-
mittedly approaching agreement on a 3-year collective-bar-
gaining contract; and this conclusion is supported by Karn’s
various statements concerning the decertification petition
then being circulated.
Indeed, the Respondent’s March 29, 1990 wage proposal
and its April 2, 1990 seniority proposal are incompatible; the
former introducing the concept of pay grades, and the latter
referring to layoffs within the no-longer existing general
labor classification. Moreover, the Respondent has provided
no rationale for the unusual and seemingly illogical concept
of laying off unneeded skilled or semiskilled employees by
first laying off general laborers, whom the Respondent be-
lieved constituted the Union’s strongest support, rather than,
as previously agreed on, directly laying off the employees
who are no longer needed.
The aforementioned proposals by the Respondent, appar-
ently hastily conceived, inconsistent, and with no feasible ra-
tionale, indicate that the Respondent’s professed ‘‘new direc-
tion’’ was nothing more than a sham designed to prolong and
stalemate bargaining and thwart its bargaining obligation.
Such proposals, advanced after many months of bargaining
and at a time when a total collective-bargaining agreement
appeared to be clearly within reach, is incompatible with the
Respondent’s obligation under the Act to bargain in good
faith with the Union. See Luther Manor Nursing Home, 270
NLRB 949 (1985); San Antonio Machine Corp., 147 NLRB
1112, 1116–1117 (1964); Midvalley Steel Fabricators, 243
NLRB 516, 522 (1979), enfd. as modified 621 F.2d 49 (2d
Cir. 1980); Hotel Roanoke, 293 NLRB 182 (1989); United
Technologies Corp., 296 NLRB 571 (1989).
Contrary to the position of the General Counsel, I do not
conclude that the evidence shows that the Respondent’s prin-
cipal negotiator, Attorney Karns, was without the requisite
authority to engage in meaningful negotiations. See
Coastside Scavenger Co., 273 NLRB 1618, 1628 (1985).
Karns did, in fact, reach agreement with the Union on sig-
nificant contractual items. The fact that Karns was instructed
by his principal to modify or withdraw certain significant
items late in the bargaining process, while indicative of bad
faith, does not demonstrate that Karns lacked authority to ef-
fectively bargain with the Union.
The evidence shows that negotiations regarding a 401(K)
pension plan, initially proposed by the Respondent but imme-
diately retracted as having been inserted in the Respondent’s
proposals by mistake, really never evolved into serious, de-
tailed discussions regarding the formulation or implementa-
tion of the plan. I conclude that the Respondent’s withdrawal
of this proposal for the reason enunciated by Karns, did not
hinder the bargaining process.
The General Counsel also maintains that the parties
reached tentative agreement on a health insurance provision
which provides, according to the Union’s draft of the agree-
ment, for the continuation of the existing health insurance
benefits for the first year of the contract, after which time
the parties were to ‘‘examine the Blue Select concept and
other viable cost containment procedures for future plan
years.’’ The record evidence is not entirely clear regarding
the parties’ precise agreement on this issue. Assuming,
arguendo, that the Union’s draft correctly sets forth the ten-
tative agreement reached, it is clear that the language of the
open-ended tentative agreement does not bind the Respond-
ent to any particular health insurance plan for the second and
third year of the contract. Thus, it appears that the Respond-
ent, by advising the Union that it had changed its mind and
had decided against the Blue Select concept for the second
and third year of the contract, was not reneging on a signifi-
cant contractual item; nor did the Respondent unequivocally
state that it was unwilling to explore ‘‘other viable cost con-
tainment procedures.’’ Under the circumstances, I conclude
that the record evidence is insufficient to support the conclu-
sion that the Respondent, by such conduct, further obstructed
the bargaining process.
85INDUSTRIAL CHROME CO.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
I find that by the aforementioned conduct, namely the Re-
spondent’s belated announcement of a ‘‘new direction’’ in
bargaining, accompanied by the wage and seniority proposals
discussed above, and under the circumstances set forth, the
Respondent has violated, and is violating, Section 8(a)(5) and
(1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Industrial Chrome Company, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time production and main-
tenance employees employed by the Respondent at its facil-
ity located at 843 N.E. Madison, Topeka, Kansas, but ex-
cluding office clerical employees, professional employees,
part-time janitors, guards, and supervisors within the mean-
ing of the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
4. Since May 17, 1989, the above-named labor organiza-
tion has been and now is the certified and exclusive rep-
resentative of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By withdrawing its tentative acceptance of wage and se-
niority proposals at a time when the parties were approaching
agreement on an entire collective-bargaining agreement, and
by presenting new proposals designed to preclude an agree-
ment, the Respondent has violated Section 8(a)(1) and (5) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having concluded that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act, including the re-
quirement that the Respondent withdraw its March 29, 1990
wage proposal, and its April 9, 1990 seniority proposal.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Industrial Chrome Company, Inc., To-
peka, Kansas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the Union by
withdrawing agreement on contract items in order to prolong
bargaining or preclude the reaching of a collective-bargaining
agreement.
(b) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Continue to recognize and bargain with the Union as
the duly designated representative of its employees in the
aforementioned appropriate unit for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
(b) Rescind the March 29, 1990 wage proposal and the
April 9, 1990 seniority proposal.
(c) Post at its Topeka, Kansas facility copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the notice, on
forms provided by the Regional Director for Region 17, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.