Regency Service Carts, Inc., 671 (2005)

Regency Service Carts, Inc. and Shopmen’s Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO. Case 29–CA–24174

August 27, 2005

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On December 27, 2002, Administrative Law Judge Steven Fish issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed limited cross-exceptions and supporting briefs. The Respondent filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judgeÂ’s rulings, findings,1 and conclusions as modified herein, and to adopt the recommended Order as modified.

  1. Â Surface bargaining

    We adopt the judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain in good faith with the Union. In doing so, we rely on the analysis set forth herein.

    Under Section 8(d) of the Act, an employer and its employees’ representative are mutually required to “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession. . . .” “Both the employer and the union have a duty to negotiate with a ‘sincere purpose to find a basis of agreement,’” Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) (quoting NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960)), but “the Board cannot force an employer to make a ‘concession’ on any specific issue or to adopt any particular position.” Id. (quoting NLRB v. Reed & Prince Mfg. Co., 205 F.3d 131, 134 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953)). The employer is, nonetheless, “obliged to make some reasonable effort in some direction to compose his differences with the union, if [Section] 8(a)(5) is to be read as imposing any substantial obligation at all.” Ibid. (Emphasis in original.) Therefore, “mere pretense at negotiations with a completely closed mind and without a spirit of cooperation does not satisfy the requirements of the Act.” Mid-Continent Concrete, 336 NLRB 258, 259 (2001), enfd. sub nom. NLRB v. Hardesty Co., 308 F.3d 859 (8th Cir. 2002) (quoting NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir. 1965)). A violation may be found where the employer will only reach an agreement on its own terms and none other. Id.; Pease Co., 237 NLRB 1069, 1070 (1978).

    In determining whether a party has violated its statutory obligation to bargain in good faith, the Board examines the totality of the party’s conduct, both at and away from the bargaining table. Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003); Overnite Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991); Atlanta Hilton & Tower, supra, at 1603. From the context of the party’s total conduct, the Board must decide whether the party is engaging in hard but lawful bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of arriving at any agreement. PSO, 334 NLRB at 487.

    The Board considers several factors when evaluating a party’s conduct for evidence of surface bargaining. These include delaying tactics, the nature of the bargaining demands,2 unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, withdrawal of already-agreed-upon provisions, and arbitrary scheduling of meetings. Atlanta Hilton & Tower, supra, at 1603. It has never been required that a respondent must have engaged in each of those enumerated activities before it can be concluded that bargaining has not been conducted in good faith. Altorfer Machinery Co., 332 NLRB 130, 148 (2000). Indeed, avoidance of the statutory bargaining obligation can be demonstrated without engaging in wholesale and wide-ranging activities in every one of these areas; rather, a respondent will be found to have violated the Act when its conduct in its entirety reflects an intention on its part to avoid reaching an agreement. See id. at 130 fn. 2.

    Applying these principles to this case, we find that the totality of the Respondent’s conduct throughout the negotiations demonstrates that it unlawfully endeavored to frustrate the possibility of arriving at any agreement with the Union. Not only did the Respondent make several comments indicating its bad faith, but also it employed a number of dilatory tactics aimed at frustrating negotiations between the parties. Indeed, the conduct set forth below demonstrates that the Respondent engaged in unlawful surface bargaining.

    We agree with the judge that the Respondent made a number of comments that demonstrate its bad faith during the course of the negotiations. During the parties’ fifth meeting, held October 28, 1998,3 in response to the Union’s request that the Respondent make its economic proposals, Respondent’s negotiator Chuck Ellman said, “you want a contract, we don’t.” This comment demonstrated early in the negotiations the Respondent’s intention to avoid reaching an agreement.

    During the June 24, 1999 meeting, Ellman made several additional comments indicative of the Respondent’s bad faith. First, Ellman interrupted negotiations to state, “[y]ou don’t get it. You go on as long as you want, impasse is not an issue. Sooner or later, defecate or get off the pot.” This statement strongly implied that the Respondent manifested no real intent to adjust differences, but essentially adopted the take-it-or-leave-it approach condemned in General Electric Co., 150 NLRB 192, 196 (1964), enfd. 418 F.2d 736 (2d Cir. 1969) (“a party who enters into negotiations ‘with a predetermined resolve not to budge from an initial position’” demonstrates an attitude “inconsistent with good-faith bargaining”).

    At the same meeting, Ellman drew several “lines in the sand” concerning various provisions without which there would not be a contract. First, Ellman stated that the Respondent would not “agree to a contract with more than the federal minimum wage.” Thereafter, in explaining the RespondentÂ’s position that the UnionÂ’s information request regarding subcontracting was irrelevant, Ellman drew a red line on the back of his note pad and said, this is a “line in the sand, there wonÂ’t be any contract with a prohibition on subcontracting.” A few minutes later, when discussing the RespondentÂ’s proposed zipper clause, Ellman drew another red line and stated, “that will be part of the contract, too.” Ellman then stated “weÂ’re not going to be reasonable. We want what we want and IÂ’ll sit here for the next three years.”  These comments made clear what was previously implicit: the Respondent had no intention to compromise or to settle differences; rather, it unlawfully sought agreement on its own terms and none other. See American Meat Packing Corp., 301 NLRB 835, 836 (1991); see also Altorfer Machinery, supra, at 165 (statements that “this Company will not sign a contract with seniority,” that “the management rights that we are offering you is the same management rights we offered you from day one. We havenÂ’t changed it. It is not going to change,” and that “there will be no classifications or descriptions,” were “phrases of farewell, should the [u]nion seek to negotiate any changes in [the employerÂ’s] initial counterproposals concerning those subjects,” and indicative of bad-faith bargaining).Â

    The Respondent continued to manifest its bad faith throughout the negotiations. On February 21, 2001, the parties scheduled a bargaining session for March 22, 2001. On March 1, the Respondent filed an RM petition. Shortly thereafter, the Union contacted Ellman to inquire whether the March 22 meeting was still on in view of the filing of the petition. Ellman stated that he would be willing to meet, but that he was “going to say no to everything.” This comment further illustrates the Respondent’s “mere pretense at negotiations with a completely closed mind and without a spirit of cooperation.” See Mid-Continent Concrete, 336 NLRB at 259.

    The Respondent’s dilatory tactics and arbitrary scheduling of meetings further establish its failure to bargain in good faith with the Union. The parties held 29 bargaining sessions between August 1998 and March 2001, a 32-month period. As the negotiations progressed, the sessions did not increase in frequency. Indeed, during the last 6 months of negotiations, the parties met only twice. The primary reason for the infrequency of the meetings was the Respondent’s claimed unavailability. The Respondent cancelled 8 of the 29 sessions scheduled, including the final meeting scheduled for March 22, 2001, when Ellman simply did not show up. When meetings were held, the Respondent frequently arrived late, interrupted bargaining to accept telephone calls, and left early, despite the Union’s expressed desire to continue negotiating. Further, when scheduling future sessions, the Respondent consistently refused dates suggested by the Union, preferring to meet after the last date the Union provided.4 Additionally, the Respondent’s unwillingness to provide explanations for its proposals and refusal to inform the Union as to current shop practices also impeded the negotiations. These dilatory tactics are indicative of the Respondent’s surface bargaining and constitute violations of its obligation to bargain in good faith. See Mid-Continent Concrete, supra, at 260–261 (refusal to provide explanations for proposals and orchestrated delay tactics were evidence of bad-faith bargaining); see also People Care, Inc., 327 NLRB 814, 825...

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