Extract
Concrete Pipe & Products Corp., 152 (1991)
Concrete Pipe and Products Corp.-Syracuse Division and United Steelworkers of America, AFL-CIO-CLC, Local Union 14534. Cases 3- CA-13724 and 3-CA-13932
September 30, 1991DECISION AND ORDERBY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGHOn September 27, 1988, Administrative Law Judge Harold B. Lawrence issued the attached decision. The General Counsel filed exceptions, the Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions, and the General Counsel, the Respondent, and the Charging Party filed answering briefs.1The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.The Board has considered the decision, the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this decision and to substitute the attached Order for the order recommended by the judge.The judge found that the Respondent violated Section 8(a)(5) and (1) by failing to furnish to the Union requested economic information, by refusing to bargain in good faith, and by unilaterally changing terms and conditions of employment. The judge also found that the Union engaged in an unfair labor practice strike in response to the Respondent's bargaining violations and that the Respondent violated Section 8(a)(3) and (1) by failing to reinstate unfair labor practice strikers after their unconditional offer to return to work. For the reasons below, we find that the Respondent did not vio- late Section 8(a)(5) and (1) and that the strike was economic in character. We find, however, that the Respondent violated Section 8(a)(3) and (1) by failing to reinstate economic strikers to positions that became available after their unconditional offer to return to work. 1. The complaint alleges that the Respondent failed to furnish requested financial information to the Union while taking the position at bargaining that it was financially unable to afford the costs of the soon-to-expire collective-bargaining agreement. The judge found that the Respondent triggered a duty to disclose economic information under NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), by virtue of the following opening statement of the Respondent's president, Nicholas Melfi, at the outset of negotiations.3Our business is suffering a declining market due to the many new competitive products such as the (i.e. various plastics).Also there has been intense competition from several concrete pipe producers. (i.e. K & S Supply-Buffalo, Bundy Concrete Products-Utica & Watertown, Loomis & Sons-Montrose, Kistner Concrete Products-Buffalo, Lakeland Products- Rochester). These competitors are non-union and it is my understanding that their labor costs are very low. Also they do not have contractual restraints as we do.Consequently it is imperative that we considerably lower our labor costs. We must have the flexibility to manage and supervise in a way to increase productivity, product quality and customer service. Our current agreement does not give us the flexibility we need, so there have to be changes made.To survive in today's market we have got to be able to be competitive, and to be competitive, wage rates and benefits must be lowered. These are our Contract Proposals which we believe are necessary to accomplish what I have said.We disagree with the judge and find that the Respondent did not trigger a duty to furnish economic information. The Respondent's claims here, as set forth in Melfi's statement, do not raise a claim of present inability to pay under Truitt. The Respondent's assertions pertain only to declining market conditions attributable to competition from other businesses. Melfi's reference to the Respondent's need ''to survive'' is nothing more than a restatement of its stated desire to compete-''to survive in today's market we have got1 The Charging Party's motion to strike portions of the Respond-ent's exceptions and brief is denied. The Charging Party contends that the Respondent may not raise a defense that the employees' offer to return to work was conditional because its answer to the consolidated complaint admitted that employees made an unconditional offer to work on July 30, 1987. The Respondent's position, however, is that subsequent to the July 30, 1987 offer to return, the offer was thereafter made conditional. This defense is not precluded by the Respondent's answer.The Charging Party's motion to strike the Respondent's letter dated July 25, 1989, is granted as that letter contains substantive argument and was filed subsequent to the time for the filing of briefs under Sec. 102.46 of the Board's Rules and Regulations. In contrast, the Charging Party's submission of July 17, 1989, c...See the full content of this document
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