Furr's Cafeterias, Inc.

FLRR'S CAFETERIAS. INC 879 Furr's Cafeterias, Inc. and United Food and Com- mercial Workers International Union, Local P- 777, AFL-CIO.' Cases 16-CA-5954, 16-CA- 6440, 16-CA-6588, and 16-CA-5954, et al. August 27, 1980 DECISION AND ORDER BY MIMN1IRS JNKINS, P NFI I.O , AND) TRUI SI)A. I I On January 14, 1980, Administrative Law Judge David R. Holley issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions aind supporting briefs, Respondent filed an answering brief, and the General Counsel filed a brief in support of the Ad- ministrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thorityv in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions 't of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 4 I The name of the Charging Party has been changed to refect the June 7 1979. merger (lf the Retail Clerks International Union and the Amalgamated Meatcutters aid IBulcher Workmen of North America 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative las judge's resolutions with respect to credi- bility unless the clear preponderance f all sf the relesant eidence con- vinces us that the resolutions are incorrect Standaurd Dry Wall Producrs, Int, 91 NRB 544 1950), refd 188 2d 3h2 (3d Cir 1951) We have carefully examined the record and find no basis for rcrsing hi, findings 3 We agree ith the Administrative Laws Judge's conclusion that Re- spondent x ildated Sec 8(a)(5) of the Act b failing to notify or bargain with the Union concerning the February 13, 1975. layoff Although it is clear that the Union had actual knowledge of the planned layoff of em- ployee Mary Willis and did in fact seek to discuss her layoff ith Re- spondent, it has not been shosn that the Union had any information that other employees were to be laid off Thus, n the absence of any frmal notification by Respondent as to the extent oif the layoff we find that the Union did not have sufficietlt notice of the pending layoff so as to obli- gate it to request bargaining prior Ilo the effectise date We also agree with the Administrative Law Judge that Respondent's decision to bridge the senlortl of employees on la> off s ithout notifica- tion to or bargaining vlith the Uni on constituted all idependenlt 8(a)(5) violation and that the issue as fully litigated II so finding, we rely prin- cipally uin the fact that this violation is related to the heart of the com- plaint which alleges other instances of disregard ,of the ohligatloin to bar- gain with the Union We further rely on the fact that the operative events regarding this matter are essentially admitted by Resplondenl See Quaker Mfg. Corp.. 224 NLRB 1059. 101. fn 3 (1976) We find that the settlement agreement in Case I0 CA-5954 was prop- erly set aside by the Regional Director We so clnclude hbased on our findings herein that Responidetnt enlgaged i post-settlleen v iolations of Sec 8(ta)(1). (1). and (5) f the Act Pri,rcion Sportseaur (orporwilo of Pennsliaunia, 22() NRI 1345, I1147 (19751 The Administratix lasa Judge correctl stated i fit. 115 of his Deci- sion that Mar> Jane loltio>a was discharged in Noenmhcr 1, 1975. In the penultitiate paragraph of se, Ill of his Decision he apparently inad- 251 NLRB No. 125 We do not agree with the Administrative Law Judge's finding that Respondent was justified in re- fusing to reinstate strikers Nathanial Cage, Kenneth Williams, and Mary Lopez on the basis of their al- leged misconduct. When balanced against Re- spondent's unlawful conduct we do not believe that the misconduct was so serious as to warrant de- priving these employees of the protection of the Act. The Administrative Law Judge correctly defined the burden of proof in such situations as outlined in Rubin Bros. Footwear, Inc., 99 NLRB 610 (1952).5 He also correctly found that Respondent had a good-faith belief that the misconduct occurred and that the General Counsel failed to assume his burden to prove affirmatively that the misconduct did not in fact occur. Accordingly, for the pur- poses of our analysis, we must assume that the em- ployees engaged in the conduct attributed to them. The three employees are accused of making statements concerning the sanitary conditions at the food preparation facilities for Respondent's cafete- rias and of temporarily blocking the path of cus- tomers entering Respondent's cafeteria premises. In our opinion the incidents were so infrequent and isolated that they do not rise to the level of the or- cricnil stated that Respondenll t dl,sharged her nit September 1975 W'e herchb correl tIhal tirror In acICoL rdancc x lth his ( lisse tling opilri ol 1I H/stl'iis .oidl J (ii,, d/l/. Iv, 241 NI RII 27 (1979, Metllher I'cello IoulIl filld that Mar Jlt Mion tosa i nlitled ti h.ickpa, toiilcuntiilgt 1lrom Februalt 13 17t, lie date that hte and the iolher strikcl's uncllondlitlnall requcsed rcintallcment. rather thall No cmnher I. 75, i thie dat she as discharged c agree l tlh tIle Adrlilliralralli.e [.as Judge's cncluion tIlat the merit i reases grailted () i Ma ad June 1975, (21 during the strike. anld (3) in April ad M 147. xwerc granted unlaxfull) He correctly reasonled that, hbecause, pror to Ihe April 7. 175. certification f the Ulnill, tlerit icreases gixel Rpondcnit ctoplo cecs v cre far fronl auto- mali ad were shos, .n to invol e a large measure of discretiln and to he given at unpredictable time intersals. any merit increases gixen after cer- tificattiri ere bargainable issues under the Supreme Court's decision n V L R.B. l Bnne Katz. 4flred tankel. and M.Urray Katz. dbh/a illiums- burg Steel Product Companny, 369 U S 736 (1962) We agree with the Ad- ministrative l aw Judge's finding that the increases during the strike were unlassfull> granted beause, Respondent failed tI prolxide adequate notice and opportunitl for bargaining about the increase, as required under Katz upra While it is true that the Union agreed not to oppose such merit increases during negolatilons as long as they were granted in ac- cordance with certain specified time procedures, it made it clear that it did not .'aixe its right to notice about each increase In fact, nion spok,snman Ranion qualified the Union's positioin by stating. "If ve feel you are plailng games with the meril increases we will notify ou and may ask sotu to negotiate each individual raise " Thus. in our opinion Re- sporndent was required at all times to give the Union notice of each indi- vidual agc increase. With respect to the April and May 1976 increases. we finld that the union allorner'> April 20 letter as a clear and adequate request fiur bargaining Thus. 'se agree with the Administratise law Judge that Respondent ignored the request and effected the increases unl- laterally Although the Administratixe Law Judge specifically fisund that Ken- neth Williams should lnot be reinstated, he inadvertently included his name on the list of emplhyees to be reinstated 5 See R d R ruckir, C(oimpanr. 178 NRB 167 173, f 34 (1969) he Board therein applied this rule in the context of an unfair labor practice strike. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganized, widespread product disparagement prohib- ited by N.L.R.B. v. Local Union 1229, International Brotherhood of Electrical Workers, AFL [Jefferson Standard Broadcasting Company], 346 U.S. 464 (1953).6 Nor do we view the temporary blocking of customers, which apparently occurred in the process of handing them leaflets, as sufficient mis- conduct to justify Respondent's refusal to reinstate them when balanced against the unfair labor prac- tices of Respondent. 7 Accordingly, we find that these three employees were discharged in violation of Section 8(a)(1) and (3) and shall order their rein- statement. AMENDED REMEDY In order to assure that the employees in the bar- gaining unit will be accorded the services of their elected bargaining agent for the period provided by law, we shall construe the initial period for cer- tification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Com- pany, Inc., 136 NLRB 785 (1962); Commerce Com- pany, d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Furr's Cafeterias, Inc., Lubbock, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Add the names of Nathanial Cage and Mary Lopez to paragraph 2(b) of the recommended Order. 2. Substitute the attached notice for that of the Administrative Law Judge. 6 Black Angus of Lauderhill, Inc., 213 NLRB 425. 433 (1974). Coronet Casuals. Inc., 207 NLRB 304 (1973); Thayer Company and H. N. Thayer Company, 115 NLRB 1591 (1956). APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain in good faith with United Food and Commercial Workers International Union, Local P-777, AFL-CIO, as the exclusive representative of the employees in the unit described below, concerning the rates of pay, hours of employ- ment, and other terms and conditions of em- ployment. WE WILL NOT discourage membership in the above-named Union, or in any other labor or- ganization, by refusing to reinstate or other- wise discriminate against employees for engag- ing in a protected strike or other lawful union or concerted activities for the purpose of mutual aid or protection. WE WILl NOT unilaterally, without notice to and consultation with the Union, select em- ployees for layoff and/or alter their seniority rights on recall. WE WILL NOT unilaterally, without notice to and consultation with the Union, give merit in- creases to our employees. WE WILL NOT inform strikers rehired in new departments that they will go first in the event of a layoff. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. WE WIL.L, upon request, bargain in good faith with United Food and Commercial Workers, International Union, Local P-777, AFL-CIO, in the unit described below with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. All production and maintenance employees such as but not limited to fabrication em- ployees, kitchen employees, cooler employ- ees, bakery employees, shipping and loading employees, maintenance employees, and local truckdrivers employed by the Employ- er at its 3301 33rd Street, Lubbock, Texas,. operations, excluding the plant manager, as- sistant plant manager, foremen, office cleri- cal employees, guards, watchmen, engineers, micro-biologists, lab-technicians, draftsmen, dieticians, department managers, and super- visors as defined in the Act. WE WIL.L offer the employees listed below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings or other benefits they may have suffered as a result of the discrimination against them, with interest. --- FURRK'S CAFETERIAS, INC Jackie Alvarado Hortencia Arebalo Frank Arebalo, Jr. Rosita Alvarado Felice Barrera Rosevelt Benson Donald Brunke Nathaniel Cage Ofelia C. Cardenas Mary T. Cervantes Delfino Cruz Guadulupe De La Cruz Virginia Cruz Betty Joe Dixon Paula Garcia Albert Gobea Margaret Gonzalez Santos Gonzalez Eric Hill Willie Hardaway James P. Johnson Mary Lopez Antonio S. Mojica Mary Jane Montaya Richard Montoya Paul Moody Feliberto Ovalle Joe Pena, Jr. Juanita M. Paez Daniel T. Perry Roy Rosas Alex Ramirez Gloria Ramirez Alberta Rogers Jimmy Rivera Larry L. Raven Helen Santos Billy Stiggers Sarita Rosa Torres Kenneth E. Williams FURR'S CAFETERIAS, INC. DECISION STATEMIENT OF THE CASE DONALD R. HOI.I.EY, Administrative Law Judge: The original charge was filed in Case 16-CA-5954 by Amal- gamated Meat Cutters and Butcher Workmen of North America, Local P-777, AFL-CIO (herein the Union), on Februrary 27, 1975. That charge was thereafter amended on March 10 and April 7 and 17, 1975, respectively, and on June 13, 1975, the Regional Director for Region 16 of the National Labor Relations Board (herein the Board) approved an informal settlment agreement in Case 16- CA-5954. On February 4, 1976, the Union filed the charge in Case 16-CA-6440. That charge was subsequently amend- ed on February 23 and 26, 1976. On April 19, 1976, the Regional Director notified Furr's Cafeterias, Inc. (herein Respondent), that the Region's approval of the settle- ment agreement in Case 16-CA-5954 was withdrawn and that the settlement agreement was set aside. Thereaf- ter, on April 27, 1976, the Regional Director issued an order consolidating cases, consolidated complaint and notice of hearing, alleging that Respondent had engaged in specified conduct which violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (herein the Act). By answer, which was timely filed, Re- spondent denied it had engaged in the unfair labor prac- tices alleged in the complaint. On May 13, 1976, the Union filed the original charge in Case 16-CA-6588. On June 1, 1976, the Regional Di- rector issued a second order consolidating cases, consoli- dated complaint and notice of hearing, consolidating Case 16-CA-6588 with Cases 16-CA-5954 and 16-CA 6440 for hearing. Respondent filed timely answer to the complaint issued on June 1, 1976. denying it had engaged in the unfair labor practices alleged. On June 4, the Union filed a third amended charge in Case 16-CA- 6440. On June 11, 1976, Respondent filed its first amended answer, in which it questioned the continued existence of the Union "as a labor organization." Thereafter, on June 23, the complaint issued on June 1, 1976, was amended and Respondent filed timely answer denying that it had committed the violations alleged in the amendment. The original and first amended charges were filed in Case 16-CA-6808 on September 26 and November 17, 1976, respectively. In the meantime, Respondent, on June 29, 1976, filed a motion seeking dismissal of the complaint issued on June 1, as amended. That motion was denied at the commencement of the hearing. On November 7, 1976, the Regional Director issued order consolidating cases, amended consolidated com- plaint and notice of hearing which consolidated Cases 16-CA 5954, 16-CA-6640, 16-CA-6588, and 16-CA- 6808 for hearing. Respondent filed timely answer deny- ing the commission of the unfair labor practices alleged. The case was heard at Lubbock, Texas, during the period July 19, 1978, through August 17, 1978. All par- ties appeared and were afforded full opportunity to par- ticipate and to introduce and meet material evidence. Counsel for the General Counsel and Respondent filed post-hearing briefs which have been carefully consid- ered. Upon the entire record, the briefs, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At times material herein, Respondent, a Texas corpo- ration, maintained an office and place of business at 3301 33d Street, Lubbock, Texas, where it engaged in the processing of food products. During the year preceding issuance of the amended consolidated complaint herein, it purchased directly from points outside the State of Texas goods valued in excess of $50,000, and during the same period had sales valued in excess of $500,000. It was admitted, and I find, that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. STATUS OF THE ABOR ORGANIZATION In its answers filed prior to the filing of a first amend- ed answer dated July 11, 1976, Respondent admitted that the Union was then a labor organization within the meaning of the Act. Respondent avers in its first amend- HI motlion dated No.ember 28. 1978. Ihe (ieneral Counsel mnoed Ihal the record he correcled in designated respectls hat motion, which as unopposed, is herehs granted 88X X882 I)[ECISI()NS OF) NAI]()NAI. ABO()R REILAI()NS ()ARI) ed answer that "it is informed and believes that the Union may no longer be in existence as a 'labor organiza- tion' within the meaning of the Act, as amended" Ho w- ever, at the hearing it presented no evidence which would reveal that the Union has ceased to operate as a labor organization. Affirmatively, the record reveals that the Union actively represented Respondent's employees until Respondent refused to recognize it further in mid- 1976; that shortly before the hearing in this proceeding it had moved its offices to a new location; and that it was at the time of the hearing a party to a collective-bargain- ing contract with a corporation known as Farm Pac Kitchens, Inc. I find that counsel for the General Coun- sel has made a prima Jacie showing that the Union is a labor organization within the meaning of Section 2(5) of the Act and that Respondent has failed to show that the Union no longer functions as a labor organization. tt1. '11Tl. Al I tIl) tUNIAIR AHBOR PRACtiICtS A. The Issues The amended consolidated complaint alleges three general categories of violation: (I) alleged interference with employees' Section 7 rights and unilateral changes in wages, hours and working conditions which allegedly support the Regional Director's decision to set aside an informal settlement agreement in Case 16-CA-5954 ap- proved on June 13, 1975, and set aside by letter dated April 19, 1976;2 (2) allegations that Respondent failed and refused to bargain with the Union in good faith by: engaging in surface bargaining; failing to provide re- quested information to the Union which was necessary if it was to bargain intelligently; refusing to meet at reason- able time; granting merit increases unilaterally; and with- drawing recognition from the Union at a time when Re- spondent did not have objective reasons to doubt the Union's continued majority status; and (3) allegation that a strike which commenced on September 17, 1975, was caused and/or prolonged by Respondent's unfair labor practices and that employees who participated in the strike were not properly reinstated after they uncondi- tionally offered to return to work. B. Background Respondent operates a number of cafeterias in I.ub- bock, Texas, and elsewhere. An integral part of its cafe- terias operation is its Quality Control Kitchens (herein called QCK), which prepare approximately 60 percent of the food served in the cafeterias at a central location in Lubbock. The QCK is the only facility Respondent im- mediately involved in this proceeding. On December 18, 1974, a Board-conducted election was held among Respondent's employees who work in four departments at its QCK, i.e., bakery department, cooked food department, meat department, and frozen foods department. Specifically, the appropriate collec- tive-bargaining unit in question is: 2 The General Counl's motion to withdraw par 7 (a) of the amended consolidated complaint (alleged ntlerrogation of emplo)ees concernilng how they had voted in the clection) wras granted at the hearing All production and maintenance employees such as but not limited to fahrication enployees, kitchen employees, cooler employees, bakery employees. slhipping and loading employees, maintenanicc em- ployees, and local truckdrivcrs employed by Re- spondent at its 3301 33rd Street, Lubbock. Texas, operations, excluding the plant manager, assistant plant manager, foreman, office clerical employees, guards, watchmen, engineers, micro-biologists, lah- technicians, draftmen, dieticians, department manag- ers, and supervisors, as defined in the National Labor Relations Act, as amended, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(h) of the Act. A majority of the employees who voted in the election indicated they desired to be represented by the Union. Respondent filed objections to the conduct of the clec- tion arid, after they xwere overruled, the Union ,as certi- fied as the exclusive collective-bargaining agent of em- ployees in the described unit on April 7, 1975. C. Conduct Which .41llegedl Contritulted l'iolaliot oj the Sellmentl .Agreement In addition to contending that Respondent violated the abo c-mentioned settlement agreement by engaging in surface bargaining during the period June 4, 1975, to June 1, 1976, the General Counsel sought to prove that it violated Section 8(a)(l) arid (5) of the Act by: (1) threat- ening on or about August 18 and August 31, 1976, to select strikers for layoff first because they participated in a strike; (2) withholding vacation rights and other benie- fits from employees because they engaged in a strike (3) unilaterally altering its sick leave-taking policy on or about Decemhber 19, 174, without notification to or con- sulting with the Union; (4) unilaterally imposing more stringent control over dispensing work gloves to employ- ees on or about December 30, 1974, without notification to or consultation with the Union: (5) imposing more onerous working conditions on its employees on or about January 20, 1975, without notification to or consultation with the Union; and, (6) unilaterally laying off approxi- mately 20 employees on February 13, 1975, without noti- fication to or consultation with the Union. The facts of- fered by the General Counsel to prove all but the surface bargaining allegations are set forth below. 1. Alleged sick leave policy change The General Counsel sought to prove that Respondent unilaterally changed its sick leave policy on December 1974, through the testimony of Mary Willis Billings and Hlelen Santos. Employee Billings testified that Meat Department Manager Gary Phillips informed her shortly after she was hired that in event she wanted to be absent to go to a doctor she was to tell her supervisor the day before the appointment, and she was to return to work afterwards if sufficient worktime remained. The witness indicated that assistant meat department manager, Al Hardin, changed the sick leave policy on December 19, 1974. by telling her to punch out after her lunch period to keep a 2:15 VURKR'S CAFFFIERIAS, [NC. 883 p.m. doctor's appointment and by indicating she should not return to work after the appointment. :' She testified that Phillips asked her on December 20 why she had left at noon the preceding day rather than shortly before the scheduled appointment. Employee Santos merely testified that she understood that, when she had a doctor's appointment, she was sup- posed to notify her supervisor the day before the ap- pointment, keep the appointment, and return to work thereafter. While she recalled having had two doctor's appointments, she could not recall whether she had the appointments in December 1974, or at an earlier time. 2. Alleged alteration of glove distribution policy Employee Mary Jane Montoya testified that she was employed in the cooked foods department of Respond- ent's QCK in December 1974. She indicated that, prior to the end of December, work gloves were freely issued by the departmental supervisors to employees when the employees requested a new pair of gloves. She testified the policy changed around the end of December as em- ployees were required to wear their gloves until they were pretty well worn and that Lamm, manager of the meat department, inspected gloves before he would issue an employee new gloves. Gary Phillips indicated during his testimony that rubber gloves used by meat department employees must be USDA approved. He credibly testified that Respond- ent's supply of rubber gloves was limited during the months of December 1974 and January, February, and March, 1975, as the Company's regular suppliers were unable to supply gloves. Respondent introduced in evi- dence letters from two glove suppliers which revealed that one supplier was unable to fill orders during the period December 1974 until late February 1975, and that the second supplier could not fill one particular order. 4 3. Alleged imposition of more onerous working conditions The General Counsel sought to prove the allegation in question through testimony offered by employees Mary Jane Montoya, Mary Lopez, and Remigio Vigil. Addi- tionally, he adduced testimony through Mary Willis Bill- ings which was offered to show that Billings was as- signed to more onerous work in "the chicken room" of Respondent's meat department a short time after she vis- ited her doctor on December 19, 1974. Montoya testified that in late 1974 and early 1975 she worked in the nitrogen room of the cooked foods depart- ment where they cleaned, breaded, and froze shrimp, and prepared vegetables for freezing.5 She indicated that prior to January 20, 1975, five to eight employees in the nitrogen room were expected: to clean 25 pounds of shrimp on Monday, which was to be breaded and frozen on Tuesday; to run (bread) 100 cases of large cod on 1 It was stipulated. and I find. that Responden's corporate officers and the departmental manager, and assistanl managers employed at its QCK are super'visors and agents of Respondenl within tIh meaning of Sec 21ll)of the Act See Resp Exhs 6 and 7 s The department manager was Richard Lamm and hi, assislant man- ager was Ray King Tuesday; to prepare an unspecified amount of vegetables on Wednesday; to run about 100 cases of large cod on Thursday; and to prepare an unspecified amount of vege- tables on Friday.' Subsequent to January 20, 1975, she testified that the same employees were expected to clean 25 cases of shrimp on Monday; to clean another 25 cases of shrimp on Tuesday, and to run all 50 cases of shrimp the same day; to run an unspecified amount of vegetables on Wednesday; to run between 100 and 200 cases of cod on Thursday;7 and, to prepare an unspecified amount of vegetables on Friday. Montoya indicated the employees were expected to process 30 pounds of shrimp per hour before January 20 and 40 pounds per hour thereafter. Montoya testified that her fellow worker, Mary Lopez, kept the actual count of cases of product prepared.8 During her direct testimony, employees Mary (Marie) Lopez indicated that the production in the nitrogen room before January 20, 1975. was: Monday Tuesday Wednesday Thursday Friday 25 cases of shrimp 100 cases of cod 30-40 boxes of vegetables 100 cases of trout cleanup chores She stated that the production after January 20 was: Monday Tuesday Wednesday Thursday Friday 50 cases of shrimp 150 cases of cod 60-70 boxes of vegetables 150 cases of cod cleanup chores Lopez indicated the "speed up" in the nitrogen room continued for a month to a month and a half. In her pre-trial affidavit, which was dated March 12. 1975, Lopez indicated the normal production in the ni- trogen room prior to January 20, 1975, was: Monday Tuesday Wednesday Thursday 25 cases of shrimp 100 cases of fish vegetables (no quantity stated) 200 cases of fish The statement indicated that subsequent to January 20, 1975, the employees in the nitrogen room were required, in addition to accomplishing normal production, to proc- ess 25 cases of shrimp on Tuesday on two occasions. Respondent answered the General Counsel's claim that it has speeded up production in the nitrogen room of its cooked foods department from mid-January to mid-Feb- ruary 1975 by placing its production records for the 6 Montoya teslified that approximately once a month heN ran 50 to I(X) cases of small cod 7 After January 20. 1975, Montoya indicated they did 200 cases of small cod once a month. I Montoya testified that her w:,ork was timed during the second week of Janluary l175, and lon alnother occasion a eek or tso later She later indicated that th elenglh of her rea ks rather than he peed of her 1work was timed tiHer pre-trial affidaLil reveals that a woman ninamed Kathy had timed s ariou, operationls at the plant ince the turnmer of 1974 ISLIRRS CAETERIA INC. 883 884 DECISIONS OF NATIONAL. LABOR RELATIONS B()OARD period November 3, 1974, through February 15, 1975, in evidence through its witness Phillips. Respondent's above-described production records, which are in the record as Respondent's Exhibits 21 and 21(a), reveal, inter alia: (1) that 25 cases of shrimp were processed every week during the period November 3, 1974, to February 14, 1975, with exception of the week of February 3 through February 8, 1975, when 50 cases of shrimp were processed; (2) that employees performed cleanup chores rather than production work from each Friday from January 19 to February 15, 1975; (3) that during the period November 3, 1974, to January II, 1975, employees regularly assigned to work in the nitro- gen room were utilized elsewhere in the cooked foods department on four Wednesdays; (4) that during the period January 12 to February 15, 1975, employees regu- larly assigned to the nitrogen room were utilized else- where on Wednesday and Thursday of the week of Feb- ruary 10 through February 15, 1975 (production on Monday consisted of cleaning 25 cases of shrimp and on Tuesday of running 25 cases of shrimp and processing 125 cases of fish); and (5) that the largest amount of fish processed in a single day prior to mid-January 1975 was 300 cases and the largest amount of fish processed in a single day from mid-January 1975 to mid-February 1975 was 200 cases. In addition to his attempt to prove that Respondent unilaterally speeded up work in the nitrogen room with- out notification to and bargaining with the Union in mid- January 1975, the General Counsel sought during the hearing to show through employee witness Remigio Vigil that work was speeded up in Respondent's meat department immediately after the December 18, 1974, election. The record reveals that, prior to November 1974, Re- spondent remodeled its meat department by increasing its size and creating two boning rooms to replace a single boning room. Thereafter, in early November 1974, Meat Department Manager Phillips held a meeting with de- partmental employees and indicated, inter alia, that due to the installation of new equipment he expected more production from departmental employees.9 At the meet- ing, Phillips indicated that one Dalton Haddaway would be the third man or pusher in the boning room to which witness Vigil was assigned. He further indicated that Haddaway would be timing the work of employees so new production standards could be developed. Vigil testified that Haddaway attempted to speed up work in the boning room after the election by telling [him] [Vigil] on several occasions that the man working next to him had boned more meat during a given period than he had and he should bring up his production. Vigil testified that prior to the election he simply did a day's work and no one admonished him for failing to accom- plish more work. Although the consolidated amended complaint refers only to unilateral imposition of more onerous working conditions, "by speeding up its work," the General Counsel attempted to show that employee Billings was " Among other things an overhead conveyor and automatic honing tahbles ere installed subjected to more onerous work in early 1975 when she was assigned to work in the chicken room of the meat department. Thus, Billings testified that approximately 1 week after the December 18, 1974, election, she was told by Al Hardin, the assistant manager of the meat depart- ment, that he was going to put her in the chicken room because she was sick so much. Some 3 weeks later, she was assigned to work in the chicken room. She testified she worked there constantly from that time until she was laid off on February 14, 1975. Billings testified that Re- spondent's practice was to assign two women to work in the chicken room each week and that they would work there only I week before different women were assigned to such work. She stated the work entailed removal of chicken hearts and giblets from the chickens and putting them in packages, which were in turn put in boxes. Bill- ings testified the work was more onerous than her normal task of cutting and breading cutlets as the chick- en room area of the meat department was wet, cold, and messy and she had to wear rubber boots. Additionally, she testified on direct examination that she had to lift 50- pound boxes onto a conveyor when the men assigned to the chicken room were on break. ' Respondent's witness Phillips testified that he made the decision to assign Billings to work in the chicken room because he understood she had a medical problem which would require more visits to the doctor. He indi- cated that cutlets were prepared (breaded and frozen) by use of a team operation and Billings' assignment to work in the chicken room would result in less interference with production when she had to be absent from work. Phillips further testified that the temperature in the chicken room is maintained at 50 degrees and the same temperature is maintained throughout the meat depart- ment. He acknowledged that the work is wet, explaining that the chickens produce the moisture as they are wet when handled. In support of its contention that other employees have been assigned to work in the chicken room for 3 straight weeks or longer and its assertion that Billings did not work in this position exclusively from mid-January until February 14, 1975, Respondent intro- duced its chicken room production records for the period January 13 to February 15, 1975, and its produc- tion records for its "chicken fry" operation for the period February 10 through 14, 1975 (Resp. Exh. 22). The production records reveal, inter alia, that Billings worked 3 full days and 2 partial days in the chicken room during the week beginning January 13; that she worked only 3 full days at that task during the week be- ginning January 21; that she worked 3-full days and a partial day in the chicken room during the week begin- ning January 28; that she did not work in the chicken room during the weeks beginning February 3 and 11: that three males were permanently assigned to work in the chicken room during the period covered by Re- spondent's Exhibit 22, but Billings was the only female "' Billings admitted onl cross-exalmination that she lifted 50-pound boxes only otn loccasion. FLIR'S CAFETERIAS, INC 885 employee ho worked in the chicken room for some period of time during 3 consecutive weeks. " 4. The February 13, 1975, layoff The record reveals that approximately 20 employees of Respondent's QCK were given a copy of a letter dated February 10, 1975, informing them, in essence, that I week from the date of the letter they would be laid off for economic reasons; that if they remained in layoff status for more than 30 days the layoff would become a permanent termination; and if they remained off until ter- minated they were invited to submit an application along with other prospects. 12 The parties stipulated there was economic justification and necessity for the layoff. While the record fails to reveal that any of Respond- ent's officials notified the Union that it intended to effec- tuate the layoff under discussion, Ronnie Brown, the president of the Union, testified that some 4 or 5 days before the layoff he telephoned Respondent's secretary- controller, Wayne Smith, to indicate that employee Mary Willis had complained to the Union that she had been se- lected for layoff while a less senior employee was to remain at work. Subsequently, Smith answered Brown's inquiry by telephoning the latter's office and leaving a message to the effect that the Company had no practice of observing seniority in layoff and recall. 13 At some undesignated time in late April or early May, Respondent needed additional help and a decision to recall the employees then in layoff status was made by Respondent's top management. At that time, Respondent unilaterally decided to bridge the seniority of those re- called from layoff rather than treat them as terminated as the February 10th letter had indicated. 1 4 The record reveals that the Union objected generally to "the company's unilateral changes [in wages, hours, and working conditions] without bargaining with the union" by letter from Brown to Smith dated March 4, 1975.'5 By letter dated March 24, the Union notified Re- spondent, inter alia (G.C. Exh. 6): We do not agree with the Company's unilateral changes and we want to begin bargaining on senior- ity with respect to layoffs and recalls. Subsequently, by letter dated April 15, the Union, then having been certified, requested that Respondent furnish it with a list giving it, inter alia, "a copy of a seniority list with employees who are laid off and who are now working," and it reiterated its desire to begin bargaining on, inter alia, "seniority with respect to lay offs and re- II The exhibit reveals that Billings (identified as Mary W.) worked in the chicken-fried steak operation during the week preceding her Febru- ary 14, 1975, layoff. 12 See G C Exh 2. 1' In the February 10 letter given employees. Respondent advised them "where it is practical, we will be using the seniority system to de- termine who will be laid off" See G C Eh 2 4 The seniorily was bridged by moving the employees hire date for- ward by the amount of time he or she had remained in layoff status is Respondent answered the letter by declining to discuss the matters raised in the Union's March 4 letter until the Board certified the Union See G.C Exh 4 calls."' 6 The Company sent the Union the list requested on May 12, 1975.'7 In its initial contract proposal, which was given to the Company at the first bargaining session on June 4, 1975, the Union proposed that seniority of employees not be broken by "Management layoffs." 18 The Union's princi- pal negotiator, Marion Ramon, raised the question of the seniority to be accorded to an employee rehired or re- called from layoff during the June 25 bargaining session, but he did not pursue the matter. However, during the July 2 bargaining session, Ramon indicated that the Union proposed that an employee on layoff status not lose his seniority rights for 5 years, and he specifically requested that recalled or rehired employees be given all previously accrued seniority and benefits and that em- ployees still on layoff be recalled to work in line of plant seniority. Additionally, Ramon requested that employees still on layoff be rehired before new persons were hired by the Company.19 Finally, during a bargaining session held on July 17, the Company informed the Union that it had recalled employees from layoff on a departmental basis and that it had bridged their seniority if they had not been off for more than 3-1/2 months. The Union ob- jected to the Company's unilateral change in its policy (previously terminated if in layoff more than 30 days) and again requested that employees still in layoff status be recalled before new employees were hired. The Com- pany's response was that it was recalling employees on a departmental basis.2 0 D. Alleged Unlawful Merit Increases Given Btfore Bargaining Commenced To establish his contention that Respondent gave em- ployees unilateral merit increases without notification to and consultation with the Union before and after the Union was certified as the exclusive collective-bargaining agent of the employees employed at Respondent's QCK, the General Counsel relied upon the testimony of La- verne Vinson, Respondent's director of engineering, as well as numerous employee witnesses. As merit increases and/or continuation of Respondent's merit increase pro- gram were discussed by Respondent and the Union during negotiations, I relate here only that evidence which pertains to the period prior to negotiations. Vinson indicated during his testimony that Respondent started its QCK in 1968 with two departments; i.e., a meat department and a bakery department. The persons chosen to operate the departments set up their own guidelines with regard to hiring, promotion, and so on. t6GC Exh. 7. 17 GC. Exh. 9 The Union requested a second list to show the status of employees in layoff status at the June 4 bargaining session (G.C E xh 134 p 4). '" Resp Exhs 2, 112-A, p. 12 19 The Company, in effect, denied this request as its principal spokes- man. Bob Whipple, observed that Respondent was then using depart- mental senilrty 2" During the session Whipple attempted to) justify Respondentls deci- sion to bridge seniority of employees recalled from layoff if they had been oIff less than 3-1/2 months bh commenting the Company felt that changing from Icrmilnatio after 31 days in la)off was a axor to the Union He offered to return to the 30-day siluallion and Ramon simply obhccted to the unilateral action employee who worked in the chicken room for some FRR'S CAFETERIAS, INC 885 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In 1972, the cooked foods department and the shipping department came into existence and the persons hired to operate those departments also promulgated their own personnel policies. According to Vinson the department- al managers started to review the performance of em- ployees working under them in 1972 as the labor market became tighter at that time, but no real uniformity or regular review was accomplished until early 1974. Vinson testified that from 1974 forward the departmental managers of the QCK conducted periodic review of their departmental employees at regular intervals, giving them merit increases when warranted. He testified that a meeting of departmental managers was held about the time the Union was certified and that the departmental managers were then told to conduct their reviews in ac- cordance with time deadlines they had previously estab- lished. The General Counsel adduced testimony regarding Respondent's pay increase policy prior to the commence- ment of negotiation through numerous witnesses. His witnesses uniformly testified they had never been in- formed prior to negotiations that Respondent had a formal merit increase program. Similarly, they consist- ently indicated that they were told when hired that they would receive raises based on their performance. Review of the record reveals the witnesses presented by the Gen- eral Counsel worked in three departments; i.e., cooked foods department, meat department, and bakery depart- ment.2 ' Their testimony is summarized below. I. Cooked foods department Roosevelt Benson was hired to work in the cooked foods department on May 28, 1974. He testified that the department manager, Lamm, told him when he was hired that he would review him [his performance] in 30 days and again in 90 days. Benson indicated he received three raises of 10 cents 6 to 8 months apart, with the first raise coming after he had worked for 6 months. Nathaniel Cage was hired in the cooked foods depart- ment on September 7, 1972. He testified Lamm told him his wages would be based on how well he did. Kenneth Williams was hired May 15, 1973, as a part- time employee and was told by Lamm that he would get raises based on performance. He received a 25-cent raise approximately 1-1/2 months after he was hired. Marie Lopez was hired in the cooked foods depart- ment on August 23, 1973. She testified Lamm informed her that as her work got better she would get raises. Betty Jo Dixon was hired on October 11, 1972. She testified she was told nothing about raises at the time of hire and that she did not receive a raise until she had worked in the cooked foods department for about a year. She testified she worked in the shipping department for 9 months without receiving a raise. Finally, she stated she received four additional 5-cent or 10-cent raises thereaf- ter at irregular intervals during her entire period of em- ployment. Mary Jane Montoya was originally hired in Respond- ent's cooked foods department in April 1974. She testi- 2' No employees from the frozen foods department or the shipping de- partmeni testified concerning the subject under discussion. fled that Lamm told her when she was hired that she would receive a raise in 3 months and every 6 months thereafter depending on performance. Rosa Torres was hired in the cooked foods department on August 1, 1973. She testified she received her first raise in I month. 2. Meat department Mary Cervantez was hired in the meat department on September 19, 1973. She testified that the department manager, Phillips, told her she would receive a raise in 30 days and would receive raises every 6 months thereaf- ter if she worked out and/or according to her work. Santos Gonzales was hired in the meat department on November 6, 1972. He testified he was told he would re- ceive raises every 6 months. He indicated he received his first raise in 6 weeks. Remigio Vigil was hired in the meat department in July 1971. He was hired as a boner and testified he was told he would be raised to what the other boners re- ceived when he demonstrated he could do the work. Virginia Cruz was hired in the meat department on October 18, 1973. She was told at the time of hire that she would be reviewed in 30 days. A month after she started to work, she received a raise. 3. Bakery department Richard Montoya was hired in Respondent's bakery on July 13, 1970. He testified he was informed when hired that he would get a raise in 30 days, but he was told his performance would be reviewed at 6-month in- tervals. After he received an initial raise some 30 days after he was hired, he received subsequent raises at 7- to 8-month intervals. Margaret Gonzales was hired in the bakery on August 27, 1973. She testified she received her first 10-cent raise 9 months after she was hired. Eric Hill was hired in the bakery department on August 28, 1973. He testified he received his first raise in 30 days and a second raise 5 to 6 months later. Gloria Ramerez was hired in the bakery department in August 1971. She testified, that prior to September 1975, she received an aggregate of $1 in 10-cent to 15-cent raises which were spaced 4 to 10 months apart. E. Election Campaign Material Relied Upon by the General Counsel During the election campaign that preceded the De- cember 18, 1974, Board supervised election, Respondent made it clear to the employees of its QCK that it pre- ferred that the employees vote against the Union. The General Counsel sought to introduce voluminous materi- al relating to the election campaign but was restricted to offering only that evidence which might shed light upon Respondent's subsequent bargaining stragety. In this vein, the General Counsel placed in evidence a typical company campaign document which poses and then an- swers questions. At the hearing, and in brief, the General Counsel pointed to the following excerpt from General Counsel's Exhibit 132(a): FURRK'S CAFEILRIAS, INC Q. If the union wins, won't I automatically get a wage increase and improvements in fringe benefits? A. Absolutely false. If the union gets in, the only obligation the Company has is to bargain in good faith with representatives of the union. The Compa- ny does not have to give in on anything it is unable or unwilling to do. Federal lawl specifically pro- vides that the duty to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession." Besides, unions don't "get" anything for anybody. Many times a collective-bargaining contract contains %wage in- creases or benefit changes that the Company planned to give or was willing to give even without union demands. The union tries to take credit by saying they "got" it for employees. So forget what you've been told about "automatic" wage and bene- fit increases- F. Union Request for Injbrnmation and Bargaining Between Election and Certification After the December 18, 1974, election, Respondent filed timely objections to the election. When those objec- tions had not been resolved by March 4, 1975, the Union's business representative, Brown, sent a letter to Controller Respondent's Comptroller Wayne Smith, re- questing negotiations and certain information; i.e., a se- niority list indicating dates of hire of employees, rates of pay, classification, insurance program, pension plan, va- cation schedules, holidays, sick leave plan, and other benefits in effect for employees.22 By letter dated March 12, 1975, Smith informed Brown his requests for bargain- ing and for information were denied as the Union had not been certified. By letter dated March 24, 1975, Brown informed Smith that Respondent's obligation to bargain began when the Union won the election and he again requested negotiations and the information previously sought. Ad- ditionally, the Union's March 24 letter protested "the Company's unilateral changes" and requested bargaining on seniority with respect to layoffs and recalls.23 Respondent failed to reply to the Union's March 24 letter and the Union was certified as the collective-bar- gaining representative of the QCK employees on April 7, 1975. Thereafter, on April 15, Brown again requested by letter that Respondent meet and negotiate with the Union. In its April 15 letter, the Union requested that Respondent send it essentially the same information re- quested by its earlier letters.24 Smith responded to Brown's April 15 letter on April 18, indicating the infor- mation requested was being gathered; that it would be forwarded to the Union as soon as possible; and that Re- spondent could start negotiations "within the next few weeks." 25 By letter dated May 12, 1975, Respondent sent the Union the information requested in its April 15 2 C Fxh 3 !- See (iC Exh t 1 he (;eneral Counsel contends Ihe unilaPer-i changes consisted of ( ) Ihec hange i IsSUillcce of i ork gh.Is ,s: (21 change in sick lea'e poli): (3) imposililn of more onerous stork h rc- quiring emploees to speed Iup and (4) the tehruar 13. 175 ;las,ff 2 See G C Exh 7 1' See (i C xh letter. Thereafter, on May I6, the Union informed Re- spondent by letter that it proposed that the parties com- mence negotiations on May 27, 28. and 29. 175. 2 Re- spondent replied by letter dated May 23 indicating that a member of its negotiating team, La Vern Vinson, would be out of town on the date suggested by the Union, and it proposed a meeting on June 2, 3, or 4, 1975. The Union agreed to June 4 and the parties met for the first time on that date. G. The cegotiations 1. Introduction Respondent and the Union participated in some 22 bar- gaining sessions between June 4, 1975, and April 7. 1976. Negotiations ceased when Respondent withdrew recog- nition of the Union as the bargaining agent of the em- ployees of its QCK by letter dated June 1, 1976. On May 31, 1975, Respondent retained Robert Whip- pie, a labor consultant, to represent it as its chief spokes- man in negotiations. Whipple attended all bargaining ses- sions. He was assisted by Gary Phillips, plant superin- tendent of the QCK, LaVern Vinson., Respondent's di- rector of engineering, and, for a brief period, by Ricks Knox, a personnel employee. While the Union func- tioned throughout negotiations with the same employee bargaining committee,2 7 it utilized some five principal spokesmen. Thus, Marion G. Ramon, an International Union representative, served as the Union's chief spokes- man at the first seven sessions held between June 4 through July 30, 1975. Thereafter, Steve R. Uauser. also an International union representative, acted as the Union's chief spokesman at the bargaining sessions held between August 4 and September 3, 1975. On October 10, 1975, William D. Burman, also an International Union representative, became the Union's chief spokes- man and he continued to act in that capacity through the January 30, 1976, bargaining session. Attorney James Hicks acted as the Union's chief spokesman at the session held on March 3, 1976, and an attorney from the same firm, William Baab, acted as the Union's chief spokesman at the last bargaining session held on April 7, 176. Marion Ramon and the Union's business reprcsentatixc. Ronnie M. Brown. attended almost all the bargaining sessions to assist the principal negotiator. During the actual bargaining sessions. notes for Re- spondent's use were taken by either Phillips or Vinson. Mary Ann Montoya was the Union's principal notetaker. but Betty Jo Dixon and Richard Montoya took notes for the Union on occasion. As the negotiations occurred during the last half of 1975 and the first several months of 1976, , hereas the hearing in this case was held during the months of Jul and August 1978, all witnesses who described occtil- rences during bargaining sessions relied heavil on the notes taken by their respective notetakers duriing necgoi;l- tions. Burman, in particular, appeared toI ha'. little. it i Si, ( i C EL I I I ' the cnploee nlt ber, If l Il Lnlnlitite i. cr Rlahrd i 'ntalIi MAT Jt' . [!llllO i tedl, i)lxon 11t I l rslk Arehalo 8X87 xx888 I)ICl'ISIO)NS ()I: NAlI()NAL. LABOR RELATIONS O()AR[) any, recollection of negotiation sessioni events and had to rely almost exclusi\cly on notes while testifying. 2. The bargaining sessions Session I (June 4, 1975): The parties met at the In T'own Inn from 10 a.m. until 2:45 p.m. The principal ne- gotiators explained the extent of their authority, agreed to split the cost of meeting facilities, and agreed that em- ployee members of the Union's bargaining team could take time off to attend negotiations without pay. There- after, the negotiators discussed current company benefits with Whipple indicating they included: vacation ( week after I year; 2 after 3 years; and 3 after 15 years); Christ- mas bonus which was a gift from the Company; group insurance (employee's share of premium-60 cents a wecek and additional $3.55 for dependent coverage); supply of tools and protective equipment by Company (excepting hair nets and maintenance men's personal tools); and company-paid pension plan (eligibility after 5 years). I)uring the meeting, the Union requested infoirma- tion concernling, interr alia, a schedule of bonuses and qualifications; tcdtails of the group insurance and pension plan then in effect; and a current list of' employees, in- cluding those on layoff, swhich would show their dates of hire and rates of pay. After lunch break, the Union sub- initted its contract proposal indicating it would make a wage rate proposal after it received the updated list of employees arid their rates. 2 The meeting was adjourned as the parties agreed to meet again on June 19. Session 2 (June 25, 1975): On June 17, 1975. the date of the second negotiation session was changed from June 19 to June 25 at the Union's request. On June 25. the same persons who had participated in the first session met at the same place from 10 a.m. until 3:05 p.m. At the outset of the meeting, Whipple indicat- ed the Company had a practice of reviewing employees performance for merit raises on a 6-month interval from their date of hire and he asked the Union's position on continuing such practice during the period of negotia- tions. Ramon's reply, later in the session, was (G.C. Exh. 134, p. 10): j Hy their propolsal. the Uniotn requested, inter ulia (Resp. Exh 21112- A)) maitnltenlallce stlandards noilldlscrimination; union security (Irrlm- hIerhip required after 31() days): lues and assessnment checkoff; union bul- leil hboard,; time and a half after 8. after 40, and for Saturday wovrk doublime ifor Sunday xork call hackpay: 10 paid hoilidays Inegotlt;tia, iof rates for ilew Ilr c hanlged johs; time and a half for rtire worked in excess of 5 hours ss illholit a icilal period aid a free meal and mealtime after It) hours' work two 15-1iitiiile rest periods during :Il 8 hour hift; equal diltribitiLii of aosallhle work (hours) paid iiit, tlo clompany docitor. tirN duty pay; nigthime premium pay of 25 cciis per hour; 12 minutte paiu cloth le' clhlgnig tilte 51 cents per seek clollhilg allow- atic. ciltpliityc- tloli aild safely LieNices at crOlnpiTany expctilse sork ch1,thc lauilldl aild repair at .lnlpanuy expense. guarllnled cll lit pay,: o 4 hourI, 40 hour's a week giua;llanleeI week pid \s;liatiiil after I year. 2 weeks after 3 cars, I \eks ;fier 8X cars, 4 wceks aftCr 12 year, and 5 seeks 'ilterl 15 ca , planlskldc seUtiorillty fior promotions. layoffs, ailild re- elllplosIrCl, JcitL I hsiiLe r 'll persional reasonsi 3 days fuleral cleave t o rc-,c itia t ii, d I L lay fr ll 1' re1ite Telati 'es a UrlliOir p'llSionii plalt ;;b tlnrian tl ro -th' -h i ard iN lge illcrease a ulitOI health and iel- I;lr 1sltni ullniotl % iSltalltill lightl a i il i Ctlllll ittee a gricaillce and ar- bitratillon prosill t i l colpailyl-p:id ei lnll nalItons for healIth cardls alr d Ii- ceit' 's. ; 11d i .1 t -- It t ui g adjtUtlltne2 p si'ovitin The Union does not agree with the Company's merit increase system nor does it forfeit its right to negotiate something different. Pending the outcome of negotiations, the Union will not object to the Company giving merit increases so long as the Union is notified of such increases. The parties agreed on a weekly notice to be prepared and mailed on Mondays for the previous week. As the meeting progressed, Whipple asked Ramon if the employee list sent to the Union on June 9 or 10 pro- vided all the information needed and Ramon indicated he would check the list to see if they had further questions. Ramon voiced inquiries about the seniority date given for Mary Jane Montoya and the pay rates of several em- ployees and Whipple indicated he would get answers if the Union would give him a list of questions they wanted answered. After requesting a copy of the estab- lished job standards, Ramon asked if an employee's pro- duction and compliance with the Company's dress code had anything to do with merit raises. Whipple replied that individual production records were kept and that employee attendance and tardiness were also consider- ations in merit raises. Ramon asked if an employee needed a high school education to qualify for pay raises, and the response was that lack of education would not affect merit raises within a job classification, but may prevent an employee from qualifying for a higher rated job classification. Just prior to the lunch break, Whipple gave Ramon the Company's contract proposal. 29 After the luncheon recess, Respondent added a "dress and grooming code" to its proposals. Thereafter, the ne- gotiators discussed Respondent's probationary employee clause, its layoff and recall clause and procedure, merit ' The contract proptosal. in the record as Resp Exh 2(112- ), pro- poses, ilrter alia: Funeral leave of 3 days il eent of death of a close ela- live; a grievance and arhitration procedure; six paid hlidays a work- week of 5 consecutive days during a 7-day period: cntinuation irf the Company's group insurance plan. jury duty pay with a maximum of 20 days' pay; layoff and recall by departmental seniority where "in the judg- menit of manageiment, skill ard ability are equal"; leave of absence for sicklness r personal reasons ith a l)O-day limit: a 30-minute unpaid lunlch peritod after a emiploy ee w orked l ti less than 4 hurs or more than h hours; a 3-1/2 page management-rights clause; nio-strike and no lockout provisiton; nndiscrimination language; time and a-half after 40 hours; continuation of the Cnompany's pension plan a personial qualifica- tills clause requiring employees to submit t physical examination if the emplo)yee's physical or mental qualificatilons to perform his jobh ere questioned by the Company: health certificates t be obtained by emplty- ees at their own expense a probationary period of 120 days; a 15-minute rest period imi the first aid second part ofi a shift if the cmpltoyee was scheduled to w'tork 3 hours or more during the first aid second part if his shift; a clause restricting union slicitationl f membership amionlg lnonunit emplolees ad during employees' working time: a cntract term if I year a provision idicating a emplo)e's empl nmenlt and seniority righls : would he terminated i eight differenl siatitions a tools arid pro- lectise de ices clause providing tIhe CnIpani \vIIuld lurish necessary IoI)Ils and protect ive dvices cxcludilnlg hai liets aid maintenCance employ - ees' handteools a provisilon rstricting employe: s from engaging in union hulille,s in ctnlpally titte ic Lepl l stciicll protside(l fior i the cl- lectic-hargalng agr'eillnillt; I uin ll niiio clause spccifyilng the types of llotices 'which tile pliatll supC' lCntendent woiuld apr : c a clause indi- catilng .'lrployees would nol )t h required to becomie r reniainl members of the niionl as a cndition tt eriplioymclt vacation,s f I week during year I aind 2. 2 weeks afte l- years, and 3 weeks after II years alid union i lisitillint fr the purpoce f ins'ligatiriig ai presiously filed griesv- illize FURRK'S CAFFTRIAS IC increases, and transfers. The Union asked for a 30-day probationary period and, after considerable discussion, Whipple indicated the Company would move from 120 days to 90 days. While the layoff and recall proposal was discussed at length, no agreement was reached. The dis- cussion regarding transfers concerned Respondent's cur- rent policy rather than a specific contract proposal. When discussing merit increases, Ramon, in addition to indicating the Union ould not oppose such wage in- creases during negotiations, qualified the Union's position by stating, "If we feel you are playing games with the merit increases we will notify you and may ask you to negotiate each individual raise." The session concluded at 3:05 p.m. with the parties agreeing to meet at the same place on July 2 at 10 p.m. Session 3 (July 2. 1975): At the commencement of the third negotiation session, Respondent supplied the Union with a copy of its production standards and delivered a list of merit increases given since June 6. The Union then gave Whipple its seniority proposal and a list of ques- tions regarding the status of particular employees. Ramon then asked if the parties could meet I day the following week and Whipple replied that if they agreed not to meet the next day, the Company would meet Monday and Friday the following week. Ramon agreed to meet on the days proposed when Whipple agreed that Union bargaining committee members would be paid for the Fourth of July holiday if they failed to work on Monday because they attended negotiations. The only major topic discussed at this session was the Union's three-page seniority proposal.:"' Ramon attempt- ed to justify the proposal, which made provision for layoff, recall, transfer and promotion of employees strict- ly on the basis of seniority (departmental as well as plantwide seniority), by indicating the Union felt that the proposed system met the requirements of EEOC while Whipple asked a number of questions regarding the meaning or intended effect of various terms or clauses. he indicated that Respondent desired to check EEOC re- quirements before indicating acceptance or rejection of the proposal. During the afternoon portion of the session, the Union inquired as to the status of various employees and the Company responded. That discussion led Ramon to state that the Union wanted the employees then in layoff status to be recalled with seniority and benefits before any new employees were hired. Whipple's reply was that recalls and new hires were made on a departmental basis. The meeting was adjourned at 4:38 p.m. with agree- ment that the next session would start at 10 a.m. on Monday, July 7."i Session 4 (July 7, 1975): At the beginning of this ses- sion, the negotiators first discussed Union inquiries con- cerning the updated employee information previously furnished the Company. Thereafter, UWhipple informed the Union that the Company was satisfied that its depart- "' See Resp h 2(112-I11 " While Whipple lestified hat he asked Ramon at Ihe cornclulon of Ihe sessionl uhen the Union , as going oi comen frward wilih Its age prrlposal, and calm is Ranllill' rcpl) was ''a oon as we getl omc 1f' thee noneconomi matters oi I' (t he Cnp Ihc Conllpa! sll1 o i rlllll nothilng regarding sich t rslll rallll mental seniority proposal did not prescini an EEI()C problem and the Company wanted departmental rather than plantwide senioritS. During the remainder of the prelunch portion of the negotiations, Respondent's maln- ageient-rights proposal. checkoff. atlld funeral leave were discussed. The Union indicated it felt that the com- pact management-rights clause ill its contract proposal was sufficient to protect manl;agetlent's rights. Ranion observed that Respondent's proposed clause contained language that would arguably permit the Compan to open a new plant or subcontract work. thereby depriving unit employees of work they were then performing. After a brief discussion concerning the reasons the Union felt it needed checkoff, \Whipple indicated Responderli was opposed to a checkoff clause because it did not feel the first contract between the parties should contain e - erythinig the Union wanted and the Company as; op- posed to and rejected checkoff because "we just donll agree with the principle of checkoff." : 2 The discussion regarding funeral leave during the morning session was limited to discussion of the relatives of the employcc vwho should be included and the Union's observ ation that 3 days' absence might not guarantee that the employee was able to attend the funeral of the deceased relative During the afternoon session, the negotiators discussed funeral leave, the duties of crew leaders, individual agreements, parties to the agreement, preamble, recogni- tion clause, and performance of unit work by supervi- sors. With regard to funeral leave, they tentativelI agreed that the Company \%ould grant a maximum of 4 days' paid leave for employee attendance at a funeral with a proviso that one of the days must be the day of actual attendance at a funeral Respondent's position re- garding crew leaders, which was not opposed by the Union, was that cre\w leaders were not supervisors within the meaning of the Act but were unit employ- ecs. l Whipple indicated that Respondent had no obhjec- tions to the Union's proposal on individual agreements, and Ramon indicated the Union's only objection to the preamble (Union's clause entitled "Parties to Agree- ment ") was the fact that the Company included the street address of the facility. Ramon proposed simpl listing the included and excluded emploees in a recogni- tion clause and Whipple stated he agreed in principle. Respondent's position on supervisors performing unit work was that it had only two supervisors per depart- ment and performance of work by those individuals was desirable because it insured that they w\ould be constant- 1N; aware of production difficulties hich might arise. The Union's position was that unit employees should perform unit work except in case of emergency. The session ended at 4:12 p.m. The negotiators had agreed earlier in the session that the next meeting would be held on Monday,. July 14, and Thursday, Juln 17. : t'he TLiolnl supporled it, de1C1llil It r .h1cktilt h \ iher\illl g i t :I haid e llpt'd chckoff t [lln ti', ,ill tng.nltlllllt ItJteit i) Rtp iild cIII ill i 11 ihlll tii ctI.cl rlt! l 1i1t1led h\ 5 li I iktl. 1i1 -,1ll 1 I i ars :l Ril skd \R'ionl l I1ikpl ii - p-ti, hd pr llis[i hit'l [MI L rfor hid and %Vipplc illtH l;ll-'d 1, XASt 8qll I):t'CISI()NS ()OF NAIO()NAI L.AB()R REl.A'I'IONS H()OARD .evsioon 5 (July 14, 1975): At the commencement of this session, the parties touched upon funeral leave briefly and then moved to discussion of a recognition clause. Respondent wanted, and the Union opposed, the street address of the QCK in the clause. Thereafter, Whipple delivered a list of employees who had received merit raises since the prior meeting to the Union. Ramon had previously asked Whipple if Respondent checked off dues for the Carpenters, and Whipple stated at this ses- sion that Respondent remitted only trust fund moneys to the Carpenters. The negotiators then discussed the status of various individuals, including Mary Jane Montoya. Some of the employees whose status was discussed had left Respondent's employ before the December 8, 1974. election, but Ramon indicated the Union desired to rep- resent them and to negotiate concerning their possible return to work at Respondent. In this connection, the se- niority rights of employees recalled from layoff were dis- cussed. Whipple indicated Respondent had no policy. Ramon proposed that employees retain recall rights for 5 years and Whipple asked if 6 months would be good enough. With respect to employees then in layoff status, the Union requested that they be given their original hire dates on recall to work. Whipple replied that Respond- ent would not discriminate against such employees. Just prior to the lunch break, the Union presented Respond- ent with another list of employees whose status it desired to ascertain. Upon resumption of negotiations after the lunch break, Whipple gave the Union information answering questions regarding the status of employees whose names were on the list given Respondent prior to the lunch recess. Ramon asked if the Company would permit the Union to post a notice of union meetings on the company bulletin board and Whipple replied no. The negotiators then dis- cussed "Alteration of Agreement." Respondent's position was that everything should be in the agreement and nei- ther party should be able to bring up something later just because it was forgotten. Ramon's position was that cer- tain unforseen matters might arise, such as changed or new job classifications, and the Union wanted to be able to negotiate regarding such matters. The remainder of the session was spent discussing Respondent's grievance and arbitration proposal. Whipple agreed to take several phrases out of the Company's proposal to facilitate agreement. The meeting adjourned at 4:10 p.m. with the parties affirming that they were next scheduled to meet on Thursday, July 17. Sevsion 6 (Julv 17 1975): The morning portion of this bargaining session was devoted entirely to discusson of the Union's seniority proposal. Ramon explained that the Union's object was to obtain a seniority provision which combined departmental and plantwide rights for the em- ployees. Summarized, the proposal was that departmental needs first be satisfied on a seniority basis within the var- ious departments. If no departmental employee wanted the vacancy, the job was to be filled from a list of em- ployees who had indicated they wanted their names placed on a transfer list (most senior man on list having first choice). Under the Union's proposal, Respondent was free to hire nN employees if no bargaining unit em- ployee wanted the opening i question. Whipple listened to the Union's demands but indicated the Company was not ready to agree on any plantswside seniority plan at that time. During the afternoon session, the negotiators first dis- cussed merit increases and the seniority accorded persons recalled from layoff. Ramon objected to the fact that the Company had hired new employees in certain jobs and had given them merit increases while some employees in layoff status had not been recalled. Whipple's answer was to the effect that such a situation vould continue to exist while Respondent operated on a departmental basis."4 Whipple then explained that some of the people previously laid off had been given employment at one of Respondent's cafeterias and that others had been recalled within 3-1/2 months of their layoff. All such employees had experienced abridging of their seniority.3 Ramon asked Whipple during the above-described discussion if the Company intended to bargain with the Union con- cerning the seniority accorded recalled employees and asked why the Union had not been advised that the Company had changed its policy rom 30 days to 3-1/2 months. a6 Whipple's reply as that he was mystified by the Union's position as he felt Respondent was doing the employees a favor. Whipple asked if the Union wanted to go back to 30 days (termination if not recalled in that time) and Ramon's response was that the Company en- gaged in a violation [of the Act] by making unilateral changes without negotiating with the Union. The negoti- ators then discussed the status of specific employees and during the discussion Ramon indicated he wanted a new list indicating the status of those employees who were eligible to vote; i.e., those on layoff status and those working, excluding new hires who had been terminated. The session ended with Ramon asking whether em- ployees who had been laid off for more than 3-1/2 months had lost all their benefits and recall rights. Whip- pie thereupon handed Ramon a handwritten document stating it represented the Company's policy. The docu- ment (G.C. Exh. 134) states: July 17, 1975 Furr's Cafeterias, Inc. Company Policy with Respect to Lay-off I. Employees placed on lay-off are given one week prior written notice. 2. The Group Insurance Coverage for an em- ployee placed on lay-off continues for a period of 30 days after effective date of lay-off. 3. If an employee is re-called on or before 30 days after effective date of lay-off, he is re-instated with no loss of benefits and his service record date is bridged. :4 Once all persons in layoff staius from a given department had been Ierrillalted, recalled, o:r had refused recall. ilew prsons .ere hired Ir such deparlmenl. '" Their seniority date (dae of hire) had silmp)l hbeel n tcd for'ard the length of time they spent in layoff slatu' :"s The letter distributed to employees in advance oft the ebruar 13., 1975, Iayoff indicated the)5 old be co,idered termliated if not recalled xi thil 30 days. See (iC(' hO 2 FI:URR'S CAFFITERIAS. INC X' I 4. If a employee is not re-called on or before 30 da,,s alcer effective date of lay-off, his employment is terminated as of the 30th day and his name is placed oi a preferential hiring list. 5. If an employee whose name is on the prefercn- tial hiring list is hired on or before 3-1/2 months after the effective date of lay-off his service record date is bridged. 6h. If an employee whose name is on the preferen- tial hiring list is not hired within 3-1/2 months after the effective date of lay-off, his name is removed from the preferential hiring list. 'lhe above policy is on a Department basis. The parties mutually agreed to meet next ol Wednesday and Thursday, July 30 and 31, 1975. Session 7 (July 3, 1975): In accord with earlier arrange- ments, Whipple delivered a new list of employees and a list of merit increases to the Union at the commencement of this meeting. Ramon then indicated the Union had some questions it would like to have answered. Ramon then asked: How emergency phone calls were handled: why Respondent had held an employee's insurance check for several days; why the Company had changed its freezer warmup time from 5 to 2 minutes; why it was so hard to get protective clothing, suits, boots, and gloves replaced; why the ammonia smell was so strong in the freezer; what Leo Savedra's status was; and what was the Company's policy about replacing lost or broken badges. Additionally, Ramon indicated that Betty Dixon wanted to know why she had gone 9 months without a raise while working in the maintenance department. The negotiators took their lunch break early to enable Whip- ple to obtain answers to Ramon's inquiries. Whipple spent the first hour of the afternoon session answering Ramon's questions. Iie indicated that the dc- partment heads handled emergency phone calls by get- ting the employee on the phone; that the employee's check was held until it was determined it was in order; that employees were cautioned not to take too long on warmup but there had been no policy change; that cloth- ing problems grew out of supply difficulties; that the Company was looking for a wa to prevent stoppage of' the strainers which caused the anlmonia fumes in the freezer; that Leo Savedra had no authority to represent the Employer for any purpose. lie acknowledged there had been some different treatment with respect to hadges and proposed that: (1) broken badges in the course of employment would be replaced by tile Compalny: (2) if something happened to a badge aay from the job, the Company would replace one time; and (3) if something happened to a badge away from work the second time, the employee would pay for replacement. The Union agreed the Company would adopt its badge proposal as a shop rule. During the remainder of the afternoon. the negotiators discussed delay in vacation for recalled employee, and Respondent's grievance and arbitration clause. With re- spect to vacation, Ramon asked why emploecs recalled from layoff had to wait an extra 3-1/2 nontmlhs before they were entitled to vacation. Whipple replied halt Re- spondent's policy was that an employee had work a full 12 months before he or she as entilled to a aca- tion. With respect to grie.ance and arbitration. Whipple proposed that the clause provide that ai steward ould be present at the first step of the grievance procedure if either party wants him. Ramon then proposed that at the second step the Union should ha,. e a committee w hich would meet with the company president's representative. with or without the grievant. Whipple indicated he did not like using a committee without the grievant. Ramon proposed that a union committee meet with a different company representative at the third step and the parties then moved to discussion of language changes. Whipple agreed to delete language indicating the arbitrator should be impartial and a sentence referring to timeliness of a grievance. Indicating agreement in principle with the Union's use of stewards, Whipple asked how they where selected and urged Ramon to present some conservative language on stewards. After agreement on several other minor changes in wording of the proposal. the meeting ended as Ramon asked if the Union could post a notice of meeting and Whipple indicating it could not. Session 8 (August 4. 1975): In addition to Ramon Ronnie Brown, and the union committee, Stes e lauser. an International Union representative, represented the Union at this bargaining session. Mauser, who served as the Union's chief spokesman, testified that he opened the meeting by indicating he un- derstood that no agreements had been reached in negoti- ations up to that point and by stating his assignment sAas to come into the meeting and try to get the parties to- gether in order to reach a satisfactory collecti, e-bargaiil- ing agreement. lie testified he emphasized the fact that the Union was not new, and that they w anted to main- tain some cooperation with the Company due to the fact that they had existing contracts with Furr's Markets. the retail stores. as ell as their packinghouse anid Farm Pac. 3 7 Whipple briefly described the August 4 session during his testimony and Mauser described hat occurred more fully, using his notes and those taken by Mary Jane Non- toya to refresh his recollection. Montoya's %written notes 'wcre placed in evidence as Respondent's Exhibit 9(a). lThe record, including the testimony of Mauser and Whipple and Montoya's notes, reveals that most of the discussion at the August 4 session related to the Compa- ni's grievance and arbitration proposal " The negotia- lors discussed the proposal paragraph by paragraph. On page 1, Mauser disagreed( with limitation of a conference between grievant. union steward, and the supervisor to It) minutes. Ie suggested that language be added to the last two paragraphs to indicate that the Company's fail- ure to answer the grievances within the time limits speci- fied would indicate acceptance of the validity of the grievance. At step 2 of the procedure, Mauser proposed that a Union committee of three rather than the slevward handle the grievance, and the pros and cons of such an arrangement were discussed Tle Union objected to the requirement on page 2 of the proposal that the grievant ipt l [tilllg " l"cr · ' '1l1 I. ~r- 1,1p lt lldli.ll2 1i 11 ia Rtp,plld ,,,t's ()( K ,l,,"l. s 'll i t th I .. II Ih, lad It - 1i ,11111 ] lrP t :q Sec R ,i, I 2 1 2 11 pp' 4 1 ISLRR'S CAFETRAS. INC tot I 1)1 CCISI()NS O() NAII()NAL LABOR RELATIO()NS BOARD sign the grievance at every step and Mauser proposed that the grievance be signed only once when reduced to writing. When they reached page 3 of the procedure., Mauser, reiterating an earlier comment by Ramon, sug- gested that language indicating the arbitrator "shall be impartial" be deleted, and he likewise objected to lan- guage which provided the arbitrator could not award a grievant backpay. When discussing the last page of the proposal, Mauser objected to language which required the Union to indemnify the Company if resort was had to legal remedies other than arbitration in instances wherein moneys had previously been paid to a grievant pursuant to an arbitrator's award or the settlement of a grievance. After considerable discussion of the above- mentioned matters and discussion of the mechanics of implementing the grievance procedure, the negotiators briefly touched upon Respondent's recognition clause and its funeral leave proposal and then adjourned until 9 a.m. the next day, August 5.39 Session 9 (August 5. 1975): At the end of the August 4 session, the Union gave Whipple a handwritten griev- ance and arbitration proposal for the Company's consid- eration . 4 When the August 5 session commenced, Whipple rejected the Union's proposal given him the previous day, and submitted a new company proposal on grievance and arbitration. Mauser inspected the docu- ment, which incorporated several of his suggestions pre- viously made, 4 ' and agreed, provided: (1) the grievant sign the grievance at step 2 only; and (2) that language be inserted to permit the filing of a grievance more than 5 days after the occurrence of the event upon which it was based in cases of pay shortage. 42 After reaching agreement on a grievance and arbitra- tion clause, the parties discussed the Company's nondis- crimination clause and the Union agreed to it.4 3 When Whipple agreed to delete the street address of the QCK from the Company's recognition clause, the Union agreed to the recognition clause. The Union then agreed to the Company's savings clause, After agreeing to the above-described clauses, the ne- gotiators discussed seniority and the Company's "Layoff and Recall" clause. Whipple sought to justify Respond- ent's request for departmental seniority only by referring to a Fifth Circuit decision in which the Court considered an allegation that utilization of departmental seniority was discriminatory and concluded that no violation had been shown. Mauser contended that plantwide seniority was fairer to the older employee. The Union objected to exclusion of layoffs less than 5 days from the layoff and "' The discussion on the recogniiion clause pertained to the Compa- ny's inclusion of the street address in the clause The Union wanted no street address. Mauser estified he asked what the Company's funeral leave polhcy was and Whipple could give him no answer. '" See Resp Exh. 2 (112 1) T he revised proposal is in he record as Resp. Exh 2 (112-H) The proposal provided for use of a union grievance committee after step 1, eliminated the arbitr;lor "shall be impartial" language, eliminated refer- encc i(i ullio idermificalliio of the Company, eliminated reference to the rhitrai r's iahbility to assard backpal. and provided for not more than three sc\sxards per depariment -' See Resp txh 2 (112-1). he corrections made by Respondent. and see Resp I-h 2 (112 J) the grievance and arbitration clause both parties agreed io on August 5, 1'75 4:' See Resp Exh 2 12 i, page 211 recall clause, indicating the provision could be used to deprive employees of their seniority right. During the remainder of the session, the negotiators discussed Respondent's "Union Rights," "Wage-price Regulation," "Management Rights," "Termination of Employment," "Tools and Protective Device," and its "Visitation" proposals. The union rights clause merely provided that no employee was required to join or remain a member of the Union as a condition of employ- ment. Mauser rejected the provision indicating the law took care of the matter. Whipple indicated he wanted the clause as the Union was asking for a union-security clause. Mauser opposed the wage-price regulation clause indicating he knew of no prospective legislation which would make it necessary. Whipple sought to justify Re- spondent's lengthy management-rights clause by indicat- ing it was intended to retain all rights not restricted by the agreement, and he indicated he would rewrite it to make it easier to understand. The Union opposed subpar- agraphs (c), (d), (e), (f), and (h) of the termination of em- ployment proposal because: () subparagraph (c) vested too much discretion in the Company as it was the sole judge of whether an employee who had been absent for 2 consecutive workdays had an "acceptable" excuse; (2) subparagraph (d) made no provision for obtaining a reg- istry receipt in the event an employee failed to report within 5 days after notice of recall by certified mail: (3) the Union wanted recall rights for a period longer than the 30 days specified in subparagraph (e); (4) subpara- graph (f) would permit the Company to move across the street and deprive unit employees of work; and (5) the Union felt an employee should be permitted to "moon- light" if he or she wanted to and subparagraph (h) made such activity grounds for termination. The Union's position on the tools and protective de- vices proposal was that the Company should pay for all tools. It opposed the visitation proposal as it wanted lan- guage which would permit a union representative to visit the plant after notification to the Company and did not want to be restricted to visits only after a grievance had been filed. Whipple's reply to the last stated objection was that the employees could consult with the union rep- resentative at the union hall. During the latter part of the meeting, the negotiators discussed the subject of bulletin boards extensively. Mauser indicated the Union wanted a 2- by 2-foot bulle- tin board by each timeclock. Whipple asked what types of notices the Union wanted to post and Mauser indicat- ed it would post only those authorized by the Local; i.e., notices of meeting, notices of election, etc. The session ended at 5:05 p.m. and the parties agreed to meet thereafter on August 13, 14, 18, 19, and 20. Session 10 (August 13, 1975): At the beginning of this session, Whipple delivered a copy of merit increases given the week of August 4 to the Union. He then indi- cated that he would redraft the Company's management- rights proposal and present it to the Union after lunch. After the negotiators touched upon the subject of se- niority, Mauser asked for plantwide seniority in situations where jobs were to be filled. Whipple indicated that the Company wanted departmental seniority to vest control 992 FUR'S CAFETE:RIAS IC. S' over the work force in the departmental managers. Mem- bers of the bargaining team discussed what they felt was discrimination in the situation herein Mexicans were treated more liberally than other employees. Little else was accomplished during the morning session. At the beginning of the afternoon session, Whipple gave the Union his redraft of the management-rights pro- posal. The conversation then turned once again to bulle- tin boards. Mauser reiterated that the Union wanted 2-by 2-foot bulletin boards and stated they would post what- ever they wanted to post on them. Whipple indicated that the Company would offer the contents of their pro- posal which provided that the "dimensions, construction, number, and location" of the boards would be "at the sole discretion of the Company," and defined specifically the types of notices which could be posted. Mauser claimed Whipple did not want a contract and accused him of failing to bargain in good faith. The discussion then turned to the Company's termination of employ- ment proposal. The negotiators agreed to alter subpara- graph (h) to satisfy the Union's objection to the "moon- lighting" situation, agreed on subparagraphs (e) and (f), agreed to alter subparagraph (d) by inserting "return re- ceipt requested" language and signified they were in accord on subparagraphs (a), (b), and (c). Upon reaching complete agreement on the termination of employment provision, the negotiators discussed vaca- tions. At the commencement of the discussion, Whipple indicated the Company would agree that, in event an employee who was entitled to a vacation died, the vaca- tion pay would be paid to the beneficiary named on his insurance policy as requested by the Union. Mauser re- quested that time for a vacation be indicated at the be- ginning of the "payroll week" and Whipple opted for "regularly scheduled work week" language, claiming the other phrase may interfere with the scheduling of vaca- tions. With respect to vacation pay, the Company's pro- posal was to compute vacation pay by dividing gross earnings during the accrual year by 52. Mauser objected and asked for a flat 40 hours' pay for every week of va- cation. Mauser objected to the Company granting vaca- tions at specific times requested by employees "consistent with Company requirements" and proposed instead that vacations be granted in accordance with seniority. He objected to the language denying accrued vacation pay to employees discharged for cause, and indicated that the Union opposed language which would cause resigning employees to forfeit vacation pay if they gave less than 2 weeks' notice set forth in the Company's proposal. The Union indicated it would defer discussion concerning length of vacation until it decided what its wage de- mands would be. Near the end of the session, Whipple withdrew the Company's wage and price regulation proposal and of- fered to delete "in the opinion of the Company" from its visitation proposal. Mauser counterproposed the visita- tion language in the Farm Pac proposal and Whipple in- dicated the parties were in disagreement on visitation. Personal qualifications were discussed briefly and no agreement was reached. The session ended with Mauser indicating he would look at the management rights re- draft and respond at the meeting scheduled for August 14. Sesion 11 (.-lugusr 14. 1975): At the commencement of' this session. Mauser informed the Company that the Union was not going to agree to management rights until more contract issues were settled. fie accused the Com- pany of surface bargaining and urged that they get things going. The first item discussed at this sesson as the matter of bulletin boards. Whipple proposed that the first and second paragraphs of the Company's proposal he deleted and that language be substituted to make available to the Union reasonable space on existing bulletin boards for the posting of notices approved by the union business representative. The proposal listed the four types of no- tices contained in the Company's original proposal and such other notices as may be mutually agreed upon by the Union and the Company. Mauser asked that the word "existing" be excluded and. when Whipple agreed, accord was reached on a bulletin board provision. The second matter discussed was funeral leave. While a funeral leave provision had preiously been agreed upon in principle, the parties discussed whilt days would actually be granted. The Union proposed four consecu- tive regularly scheduled working days and and Whipple agreed. Mauser asked what a full-time employee \as s the application of the provision was restricted to such employees and Whipple replied the term referred to em- ployees who worked 32 hours or more. Whipple suggest- ed that immediate stepchildren be included in the cover- age and with that the parties reached accord on a funeral leave clause. Jury duty was the next item discussed. Mauser asked how the provision applied to people working at night and Whipple indicated they would be covered to a maxi- mum of 20 days. Mauser indicated that the proposal would be agreeable if some language were inserted to provide for employees who worked at night. Whipple agreed to insert such language. Just before lunch, the discussion turned to the Compa- ny's layoff and recall proposal. The position of the par- ties remained unchanged as the Union continued to ask for layoff strictly by seniority, without the 5-day reserva- tion contained in the Company's proposal. After the lunch break, the negotiators first discussed the Company's tools and protective dec ices proposal. The Union repeated its previously voiced objections, i.e.. that maintenance men furnish and replace their personal tools, and that females furnish their hair nets. No aree- ment was reached on this matter. The discussion moed from tools, etc., to the Company's dress and grooming code proposal and the consensus was that the matter should be expressed as a Company rule rather than in a contract. Maintenance of standards was then discussed briefly. The Union wanted such a clause but no agree- ment was reached. The last topic discussed at the session wvas lunch period. The Union indicated it wanted premium pay if an employee was not given a lunch break of 30 minutes after working 5 hours (premium pay for time in excess of 5 hours) and it wanted a free meal if an emploee F1IRR'S CAFETERIAS. INC 5.13 X84 I)DECISI()NS OF NATIONAL LABO()R RELATIONS BO()ARI) worked over 10 hours. Whipple agreed to modify the Company's proposal to provide for premium pay after 5 hours rather than 6 hours. The Union suggested at the end of the session that it present a lunch period proposal on Monday, the next scheduled session. Session 12 (August 18, 1975): After Mauser accused Whipple of engaging in filibustering at their meetings and Whipple denied the accusation, the Union presented the Company with meal period and rest period propos- als. The rest period proposal, which was discussed first, provided for two 15-minute rest periods each day-one during the third hour of work before lunch and the second during the third hour of the work after lunch if the employees worked more than 2 hours after lunch. Whipple asked how the Union's rest period proposal dif- fered from the Company's and the Union responded that their proposal fixed the time of the rest periods which the Company's proposal did not. Whipple said he would look at the Union's rest period and meal period proposals and suggested that the Union look at jury duty language which he handed to them. Mauser indicated he would agree to the jury duty proposal if the Company would make one change in the proposal. 44 Whipple made the requested change and the jury duty proposal was agreed upon. After discussing jury duty, Mauser asked if Whipple had anything new on layoff and recall. Whipple indicat- ed he had nothing new and Mauser reiterated his earlier objection to the exclusion of a 5-day layoff from oper- ation of the clause. Whipple asserted the 5-day provision was necessary to protect the Company in breakdown and material shortage situations, and Mauser attempted to as- certain the longest period of breakdown previously expe- rienced. Phillips indicated 4- and 5-day breakdowns had been experienced. As the Union had previously inquired whether an em- ployee would be entitled to pension benefits under the Company's plan if he worked less than 40 hours in a given week and Whipple had been unable to answer the question, Mauser asked during this session if the Compa- ny had an answer yet. Whipple replied he was supposed to get an answer that day. The Company's personal qualifications proposal was discussed at length during this session. The proposal was: Employees shall at all times be physically and mentally qualified to perform their jobs. The Com- pany has the right at any time to require an employ- ee to submit to a physical examination to assist the Company in determining the employee's physical and mental qualifications to perform his job. The Company shall bear the expense of such an exami- nation, provided, however that employees will secure their Health Certificates as required by law, at their own expense. 4'o 1 he effect that employees scheduled to begin ,ork hetween the hours of 5 and 1 a. ould be required to report for rwork after being excued from jur duly if he could %sork at least 2 hours of his regularly schCldilcml tinl If' he failed to report. he ould forfeit urs duts pay for ith day in qlruletil See Rep Fxhls 2(112-0) nd (I 12 ) Mauser proposed that the first sentence be deleted; that the second sentence be altered to provide an employee could agree to submit to a physical; that the word "phys- ical" where first used be changed to "medical," and that the term "physical and mental" be stricken. Whipple agreed to the last two suggestions, but rejected deletion of the first sentence and the voluntary submission to ex- amination by the employee. The negotiators then became involved in a lengthy discussion wherein Mauser indicat- ed that companies and their doctors regularly engaged in collusion. The parties next discussed tools and protective de- vices. The Union voiced the same objections it had raised earlier-that maintenance men had to furnish per- sonal tools and females had to furnish hair nets. 45 Failing to make headway on tools and protective de- vices, the negotiators moved to discussion of the work- week. In response to inquiry, Whipple said the work- week consisted of 168 hours from Sunday midnight through Sunday.When asked what the payroll week was, he replied 168 hours-7 days. Mauser indicated the Union wanted a stated definite workweek to protect the Company in wage-hour situations and to prevent the Company from unilaterally changing the workweek. Whipple explained that the workweek in most of the de- partments was Monday through Sunday, and that the workweek for the janitors was different. No agreement was reached. At the outset of the afternoon session, Whipple gave the Union a redrafted jury duty proposal. The parties agreed on the clause. Whipple then read a revised rest period proposal which provided for a break during the 3 hours of work in the morning and afternoon, with an ex- ception in case of emergency. Mauser indicated the Union would give an answer the following morning. Whipple then indicated the Company would amend its lunch period proposal by agreeing to a lunch break be- tween the fourth and fifth hour of work; such break to be for a minimum of 30 minutes and a maximum of I hour. He rejected overtime in event the lunch break was not given before the end of the fifth hour, stating the Union could file a grievance or go to the National Labor Relations Board. Whipple indicated the Company would give 7-day notice of a permanent change, but no notice in event of a temporary change in the scheduled lunch period. Mauser questioned the need for a minimum time and maximum time and Whipple stated the Company needed the flexibility to take care of the situation where- in several employees failed to report and the remainder would be required to take a shorter lunch break if pro- duction were to be maintained. Mauser indicated the Union would answer the proposal the next Monday. After discussing the above topics, the negotiators dis- cussed leave of absence, sick leave, dress and grooming, no-strike/no-lockout, and hours of work. The Union's primary objection to the Company's personal leave of 4' Mauser repeatedly supported a demand that the Company replenish the ools of maintenance men that became unusable because of breakage or wear and tear by telling 'hipple the C(mnlpans iuld do so at no cost if tIhe used Sears tools The Clpanyr's rpl\ .a' that the Ildiiduals used different brands uof persional tools FURR'S CAFETERIAS. INC. absence proposal was the absence of language which per- mitted leave of absence for the union business. W'ith regard to sick leave, Mauser objected to the "without pay" language, the 30-day limitation, to the requirement that the employee submit to medical examination upon the Company's request, to language which provided an employee may not be reinstated to his former job under stated conditions, to the term "may" in a sentence con- cerning placement of an employee in similar work if his prior job had changed or been abolished (the Union wanted word "will"), and proposed that, the last para- graph of the proposal be changed to provide that, in event an employee's job had been abolished or changed, he would be placed on similar work in line of seniority provided he could perform the work or learn it in a rea- sonable time or he could elect to go on layoff status. Whipple's reply was that he would delete reference to the requirement that the employee be physically and mentally capable and he would delete the term "if the job is still in operation and unchanged" thereby remov- ing repetition in the proposal. Whipple indicated he would prefer to put the last paragraph of the proposal "on the shelf" as no agreement had been reached on se- niority. 4 6 While the dress and grooming code proposal was discussed briefly, no agreement was reached. Simi- larly, no-strike and no-lockout was mentioned, but Mauser indicated it was "on the shelf." The discussion concerning hours of work was fairly extensive. Whipple indicated the Company did not want a stated workweek because it may want to change it, and indicated, inter alia, that the Labor Act did not require them to agree to something merely because the Union wanted it. He then indicated the basis for Respondent's feeling was that it wanted certain things for economic reasons. Mauser's re- plied that Whipple did not have to refer him to the Labor Act; that he was not going to argue with the eco- nomic assertion since Whipple was doing the whole con- tract for economic reasons to prevent costs; and that the Union would take the present workweek which he indi- cated to be Monday through Sunday. Referring to the Company's proposal on hours of work, 47 Mauser pro- posed that the second and third sentence of the proposal be deleted (reference to no guarantee of hours, and refer- ence to Companys right to require employees to work in excess of daily and weekly periods), thereby causing the proposal to read, "The normal work week shall consist of five (5) days shift in a week of seven (7) consecutive days." Additionally, Mauser reiterated the Union's demand that employees be paid time and a half after 40 hours in a week and after 8 hours in a day. At the conclusion of the session, Mauser indicated he would like for the parties to state their respective posi- tions on the proposals covered to that time the next day so he could get on economics the following day (Wednesday) and thereafter report to their people at a meeting. '6 See Resp. Exh 2(112-B, pp. 13 and 14) Presumabl,. Whipple wanted to shelve the last paragraph as the Uinion anted assignmen to similar work on a seniority basis if the job of the persons) being recalled had been abolished or changed 47 See Resp Exh 2(112-, p 9) Session 13 (August 19, 1975): At this session, the nego- tiators reviewed the status of negotiations to date, cover- ing the Company's proposals first and the Union's pro- posals thereafter. Company Proposals (As modified during negotiations) Rest Period-The Company's proposal was to give 15- minute rest period after 3 hours' work in the morning and afternoon, with an emergency (breakdown) exclu- sion. The Union agreed to the proposal. Personal Qualifications-Whipple stated the Company agreed in principle that the employee give his permission to medical examination. No agreement was reached as the Union demanded that the Company pay the cost of obtaining health certificates. Alteration of Agreement-Summarized, the Company's proposal provided in lengthy language that the Compa- ny's entire bargaining relationship was satisfied by the collective-bargaining agreement and the parties recog- nized that there was no further obligation to bargain concerning any matter during the term of the agreement. The Union rejected the proposal, stating it should be left for the completion of negotiations. Death in Family (Funeral Leave)-As previously indi- cated, the provision had been agreed upon earlier. Definitions-The Company's proposal, inter alia, de- fined full-time employees as those employees whose reg- ularly scheduled workweek is 32 hours or more. Em- ployees regularly scheduled to work less than 32 hours were defined as part-time employees. The Union rejected the proposal contending that all employees who complet- ed their probationary period should be classified as full- time employees and that there should be no part-time employees. Dress and Grooming-The Company withdrew its pro- posal indicating it would cover the matter with its rules and regulations. Grievance and Arbitration-As previously indicated, the provision had been agreed upon earlier. Holidays-The Company's proposal was to pay for six named holidays if the employee worked the scheduled workday preceding and following the holiday. Part-time employees were to be eligible only if they would have otherwise been scheduled to work, and work performed on a holiday was to be paid at straight time rate. Holi- days falling on Saturday or Sunday were to be observed on the preceding Friday or the following Monday. Em- ployees on vacation were to receive paid holidays, but those on layoff or sick leave would not. The Union op- posed the provisions, in part, because it had requested 10 as opposed to 6 holidays and economic matters had not been considered at that time. Other union objections were: (I) an employee should receive holiday pay if he had been excused by his supervisor the day before or after the holiday; (2) the Union had proposed that there be no part-time employees; (3) employees should receive time and a half for work performed on a holiday; and (5) employees on day off or sick leave should not be penal- ized and refused paid holidays. 89S 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hours of Work-The Company's proposal was: "The normal workweek shall consist of five (5) days shift in a week of seven (7) consecutive days. This shall not be construed to be a guarantee of hours per day or days per week. The Company retains the right to require employ- ees to work in excess of such daily and weekly periods, and employees shall be available and report for the days and hours of work as scheduled or required." Whipple stated the Company maintained its position. Mauser reit- erated that the Union demanded a stated workweek of Monday through Sunday; that it wanted daily overtime after 8 hours and time and a half after 40 hours; and agreement that work over 10 hours would be voluntary. Insurance-The parties agreed this was an economic issue. Jury Duty-Had previously been agreed upon. Layoff and Recall -The Company's proposal provided for layoff and recall of employees by seniority, where, in the judgment of management, skill and ability were equal. Layoffs and recalls of a duration of 5 days or less and reduction in hours were specifically excluded from operation of the provision. Employees were required to report within 5 days after receipt of notice of recall or lose their seniority and right of recall, and in the interim the work in question could be assigned to other employ- ees. The Union reiterated its objection to the 5 day ex- clusion; objected to the requirement that employees report within 5 days of notice of recall under penalty of discharge because such was covered in the termination of employment provision; and disagreed with the assign- ment of work to other employees during the interim period. 4 8 Leave of Absence-The Company's proposal was to the effect that employees would be granted personal leave at the discretion of the Company upon I week prior notice for a maximum of 30 days. The Union agreed to the per- sonal leave proposal. The full text of the Company's sick leave proposal was: Full-time employees shall be granted a sick leave of absence, without pay, and without loss of senior- ity status, provided: 1. The leave is for personal illness and the em- ployee actually is physically unable to report for his regular work. 2. The leave does not exceed thirty (30) days du- ration, provided, however, said leave may be ex- tended at the sole option of the Company. In all cases of sick leave, the employees shall, prior to being permitted to return to work, provide written report from his personal physician, and shall, upon the request of the Company, submit to a medical examination, at the Company's request, to insure that the employee then has the required physical and mental qualifications. 48 Additionally, it should be noted that the Union had consistently de- manded plantwide and/or a combination of plantwide and departmental seniority giving employees bumping rights and recall rights which would result in recall of employees in layoff status before new employees were hired in the plant. Should the employee return to work following the leave of absence, the Company will reinstate the employee in his former job, if the job is still in oper- ation and unchanged, provided the employee is qualified, and physically and mentally capable, to perform the work. If the job has been abolished or changed, the em- ployees may be placed on work generally similar to that which he did last and at the prevailing rate of pay for that work, provided that, if generally simi- lar work is not available, the employee may elect to accept other work offered him, provided he can perform the work, or he may elect to go on layoff status. The Union reiterated its objection to the Company's failure to provide for leave of absence for employees who wanted to engage in union business; reiterated its objection to a 30-day limitation on sick leave; and reiter- ated its desire to delete the last three lines of the para- graph commencing "In all cases of sick leaves." The re- spective positions of the parties remained unchanged on the last two paragraphs of the proposal. Lunch Period-At the prior meeting, the Union had agreed to existing company practice. Management Rights-Was on the shelf at the Union's request. No-Strike-No-Lockout-Was on the shelf at the Union's request. Nondiscrimination-Had been agreed upon on August 5, 1975. Overtime-The parties were agreed on time and a half after 40 hours, but had reached no agreement on over- time after 8 hours or premium pay on Saturday, Sunday, and holidays. Pension Plan-The Union again requested that the Company tell it what the 40-hour provision in the plant meant, and it asked for the cost of the plan during the session. Whipple stated at this session that he did not have the answers and would let the Union know when he found out the details. Personal Qualifications-The parties had previously agreed the Company could request that an employee submit to a medical examination, with the Company bearing the expens- They acknowledged at the session that they maintained their respective positions on health cards, i.e., the Company wanted the employee to contin- ue to bear health card costs and the Union wanted the Company to pay. 4 9 Preamble-The Union had previously voiced two ob- jections to the preamble in the Company's proposal, i.e., the address of the facility and the inclusion of the name of the International Union. Whipple agreed at this ses- sion to remove the name of the International Union. Probationary Employees-The parties restated their po- sitions, i.e., the Company proposed a 90-day probation- ary period and the Union proposed 20 actual working days. No concessions were made by either party. 49 Whipple testified that Mauser first objected to employees paying for their health cards at this session and he felt they were injecting a new Issue. FURR'S CAFETERIAS, INC. 897 Recognition-The parties had previously agreed to the proposal. Rest Period-Whipple indicated at this session that the Company would agree to 15-minute rest periods during the third hour of work during the morning and after- noon, but it wanted emergency language. The Union op- posed emergency language. Restrictions on Organizing-The Union opposed the clause. Savings Clause-The Company's proposal had previ- ously been agreed upon. Term of Agreement-While there was no express agree- ment on the Company's proposal language, the parties agreed in principle to such clause. Tools and Protective Devices-The parties maintained their respective positions, i.e., the Union demanded, and the Company refused, replacement of maintenance em- ployees' tools and females' hair nets at company expense. Union Business-The Company's proposal prohibited employees from engaging in union activity on company time except as provided for in the agreement. The Union opposed the provision. Union Notices-The parties had previously reached agreement on the Company's proposal, as modified. Union Rights-The Union reiterated its opposition to the Company's proposal which provided that no employ- ee "shall be required to become or remain a member of the Union as a condition of continued employment." Vacation-The parties maintained their respective posi- tions on vacation, agreeing only that the accrued vaca- tion pay of a deceased employee would go to the benefi- ciary named in his insurance policy. Visitation-The parties maintained their respective po- sitions on visitation. Whipple offered to remove the "in the opinion of the Company" language in the Company's proposal, but it would have continued to permit union visitation only after a grievance was filed. The Union in- dicated it desired its clause which provided, in essence, that the Union could visit company premises, after notice, to police the contract. Wage and Price Regulations-The Company withdrew its proposal. While limited reference was made by the negotiators to the Union's proposals during the negotiations which preceded the session under discussion, the parties utilized the Company's proposals rather than the Union's propos- als as the basis for their discussions. While the most of the Union's formal proposals were discussed at the in- stant session, Whipple either rejected them or stated what the Company had already agreed to do with re- spect to company proposals covering the same or similar ground. Consequently, rather than list all the union pro- posals and indicate the numerous rejections and explana- tions which add nothing to the bargaining picture, I limit my summary of the discussion of the Union's proposals to discussion of those proposals which add something new to the overall bargaining picture as to the date of the session under discussion. Union Proposals Cooperation-The Union had proposed that the Com- pany refrain from disciplining employees who crossed a legal picket line. Whipple rejected the proposal, indicat- ing he felt the law took care of the matter. Equal Distribution of Hours--Whipple rejected the pro- posal. Guaranteed Work WUekl-Whipple rejected it because part-time employees would not get enough hours. Hiring Preference-Whipple rejected the proposal, stat- ing the Company would agree to nondiscrimination but not to preference [to persons previously employed by the Company]. Intent and Purpose-The Company agreed to the Union's clause. Leaving Bargaining Unit-The Union's proposal pro- vided employees leaving the unit to accept another posi- tion with the Company would lose all seniority rights after 6 months; Whipple indicated he would think about the proposal. Miscellaneous General Provisions-The Company agreed to notify the Union weekly of all changes made in job rates, transfers, layoffs, discharges, recalls, and new employees being hired, indicating it would deliver such information to the chief steward rather than deliver it by certified mail as proposed by the Union. Whipple rejected sections 2, 3, and 4 of the general provisions (sec. 2 being a successors and assigns clause: Sec. 3 being a prohibition against the Company requiring an employee to submit to a lie detector test as a condi- tion of employment without union approval; and sec. 4 being a clause prohibiting the Company from deducting from the pay of employees any contribution not pro- vided for by the agreement of state or Federal law). The Company rejected the remainder of the Union's proposals with little, if any, comment. Those proposals included, inter alia, maintenance of standards, Saturday and Sunday pay, wages and classification system, starting time, individual agreements, safety committee, excluded employees, seniority, cost of living, clothes allowance, clothes changing time, night premium, wages (no specific proposal was made), health and welfare, and examina- tions. At the end of the session, Whipple asked Mauser if he wanted to put together an economic package. Mauser re- plied that he did not think it was time for it and ob- served that seniority is the backbone of a contract and it appeared to him that the Company wanted to continue to run things as they were. Whipple indicated he would give the Union an answer to the pension plan later in the day. Session 14 (August 20, 1975): At the commencement of this session, Whipple explained that the reference to 40 hours a week in the pension plan meant that those em- ployees normally scheduled to work a 40-hour week were covered even though they actually worked less than 40 hours in a given workweek. He indicated an ad- ditional eligibility requirement was 5 continuous years' service and informed the Union that a notice posted on the company bulletin board related to the pension plan and indicated where additional information could be ob- tained. Neither side was willing to alter its position and it was mutually agreed to contact the Federal Mediation and FLRRS CAFETERIAS. INC 897 898 DECISIONS ()F NATIONAI. LABOR RELATIONS I()ARD Conciliation Service before they met again. The meeting ended at 10:30 a.m. '5 Session 15 (August 29, 1975): A. L. Smith, Federal me- diator, presided over this meeting. The mediator's first move was to ascertain the areas of agreement and disagreement. The parties informed Smith that agreed upon were: funeral leave; grievance and arbi- tration; jury duty; lunch period; nondiscrimination clause; savings clause; recognition; union notices; and intent and purpose clause. Mauser defined the open issues as: seniority; union security; pension; insurance; rest periods; restrictions on organizing; weekly guaran- tee; termination of employment; maintenance of stand- ards; Saturday and Sunday premium pay; wages; holi- days; and probationary employees. Whipple observed there were other outstanding issues, but did not name them. In the general discussion which followed delineation of the issues. Whipple made reference to the workweek being an outstanding issue and reiterated that the work- week was 7 days starting on Sunday at 12:01 and ending at midnight Saturday. With regard to the pension plan he reiterated that it applied to employees regularly sched- uled to work a 40-hour week, indicated that part-time employees were not covered regardless of hours worked, and stated he could get more information. Whipple re- peated the Company's position on union visitation and indicated the Company realized that the clause with re- strictions on organizing was illegal. Subsequent to the lunch break, Whipple informed those assembled that the Company would modify some of the proposals on which agreement had not been reached. He stated that, while they did not want a speci- fied workweek, they would agree to a workweek of 7 days and they would agree not to change the workweek in any given department more than three times a year, and then with a 7-day advance notice to the Union. The Union rejected the proposal. Whipple next indicated the Company would modify its union visitation proposal to permit a union representative to meet with a grievant in private for not more than 2 hours if a grievance had been filed. Considerable discussion regarding the notice to be given and the person to be notified failed to lead to agreement. Whipple then amended the Company's stand on safety committee by indicating it would agree to a three-man committee for each department composed of one union representative, one company representative. and the department head, who would investigate acci- dents and meet once each quarter to tour the department and make recommendations to the department head. Mauser indicated he would not agree if they gave the Union all three members on such safety committees and he rejected the union's visitation proposal. After the parties recessed for a period, they returned and Mauser commented he did not think the Company wanted an agreement, but he would give them a chance to prove it at one more meeting. He then indicated the Union would agree to union visitation, that they did not want a safety committee, and that the Company could :, W hipplc t'iiflt'cd het' igIll asked during this se'..sioln if Ihe nIwlll tianw . illg ti Imukc a ii.lg dtli.il m il d l tn.lllS that Mauser said no have workweek as they wanted it if they could reach agreement on seniority, union security, insurance, rest periods, holidays, probationary employees, termination of employment, weekly guarantee, maintenance of stand- ards, and premium pay on Saturday and Sunday. He added they could then talk about wages at that time, with pension plan as it stood. The session ended as Whipple disagreed with Mauser's statement that the Company did not want a contract, and all agreed to meet next on September 3.5 Session 16 (September 3, 1975): A.L. Smith, Federal mediator, also presided at this session, which was the last session attended by Mauser as chief spokesman for the Union. At the beginning of the session, Whipple presented in writing amended company proposals on rest periods, maintenance of standards, probationary employees, and union visitation. The rest period proposal deleted the emergency exception and stated rest periods would be given during the third hour. With respect to maintenance of standards, the proposal was for "hourly rate only." The probationary period was lowered to 60 days. Mauser indicated the Union would agree to the rest period proposal and would take the maintenance of standards and probationary proposals under considera- tion. Whipple thereupon informed the Union that further changes in the Company's proposals would cost it money and they would not change anything else unless they knew what it cost. Mauser then indicated they would recess and the Union would come up with a wage list. Mauser then asked the cost figure on the 12 proposals the Union had given to the Company during the preced- ing week,5 2 and Whipple replied that he needed to find out what the Union was asking for wages. After a recess, the Union returned and Mauser in- formed the Company that the Union did not find itself in a position to give a wage proposal. Mauser then listed nine items, indicating that there was no need to go into wages if agreement were not reached on these items. Listed were: (1) 10 holidays; (2) union security and checkoff; (3) 30 days' probationary period; (4) seniority (Union's July 2 proposal); (5) weekly guarantee (36 hours Monday-Friday); (6) insurance (present, with Company paying all premium); (7) premium pay (1-1/2 Saturday and double time for Sunday); (8) maintenance of stand- ards; and (9) union visitation. >' Mauser indicated during his testimoron that he pecifically asked the Company for the cost of the iemrn the Ulilm had priposed at Ihis bar- gaining session Whipple denied that any requests for col ere made Monloya's note s contained no reference to a request fr cost figures during this session. Although Mauser testified his experience led him to believe that he asked Respondent to gie him the cosit oi holiday and Iheir illnsurance progranl, Nllltoa's notes similarl cnrtaii no reference to such requests. Brown sated during hi' testimony that he "vaguel" recalled Mauser requesting such cost infiormation.l hipple testified that. v hile Mauser may have asked rhcloricall. "What doe Ithis cosl you." itO specific co.t iifi i rnllationi wa rquested xk licl a'a nl acted upl I credit WVllipple in lli th ii tice lolida.s' (I() ald di llU hl li lT if storked) 1(2) IlliT0l .CCLIrits ill ceckel () prohmlionar\ period 0 (l)ta ,M. (4) pnIso (pmcst'nl1 lt) (5) guaralll cdl sorkictrk t i( i hoil ill 5 das Iis ) Alr k I(ac II la pi lt rllol)l h). (7{? ,,lli l>s'. (8) i t.s1 lpt i ltl. (g) ItErrllll i sfll l t)L ( llp l. ( l i) llich perillld (I I 1) i iii uill I l ) i SIutllirUla.i. li 11t1'. 1c 10r tillul\. m 2l (12) iicali ll I prtit. t Ii IIi I C Itut I n bilictl. II Ci i p]o CI (ICS FURR'S CAFEI'RIAS. INC Whipple answered the Union by indicating the Com- pany would not move further until it knew what the wage demand would be. Mauser responded by indicating he would deem holidays, insurance, and union visitation economic items if the Company would respond to the re- maining demands he had listed. Whipple replied the Company would like to meet the next week and Mauser indicated the Union would meet when the mediator was available but it would not meet behind a picket line. Session 17 (September 23, 1975): On September 17, Re- spondent's employees commenced a strike which was to last until early February 1976. Shortly after the strike started, A. L. Smith, the Fed- eral mediator, scheduled a meeting of the parties for Sep- tember 23. Ramon replaced Mauser as the Union's chief spokesman. The Company and the Union indicated at the meeting that they were unwilling to move and the meet- ing was adjourned. No date for a future meeting was set. Session 18 (October 10, 1975): By letter from Whipple to Ronnie Brown dated September 26, 1975, the Compa- ny informed the Union, inter alia:5 a In anticipation of the increase in minimum wages in January 1976, it is our plan to increase our hiring rate to $2.50 per hour. We offer to meet with you to negotiate regarding this increase. If we do not hear from you by October 2, 1975, we will put the rate into effect on that date. By letter dated October 2, and telegram dated October 3, the Union objected to any unilateral changes of wages and indicated it desired to meet concerning the wage change contemplated by Respondent. 5 4 By letter dated October 3, the Union informed the Company:, 5 The union demands that you stop any future merit increases to employees of Furr's Cafeterias, Inc., Quality Control Kitchen without negotiating with the union. These increases are no longer merit increases in accordance with past practice but in fact are given discriminatorily to avoid bargaining with and to defeat the union. The above-described correspondence led to a meeting held on October 10 under the auspices of Federal Media- tor Smith. At the October 10 bargaining session, Bill Burman acted as the Union's principal spokesman. He indicated at the outset of the meeting that the Union was prepared to negotiate on noneconomic matters and voiced objec- tion to the proposed increase of Respondent's hiring rate to $2.50 per hour. Whipple responded by handing the Union a short written proposal which provided:5s The Company offers to continue its existing merit review program and to increase its hiring rate mini- mum to $2.50/hr. :' (; ( I :h h ( ( I X .) R-q I h 2(112 Si Burman's response to the Cornpany's proposal i\\a, that the Union strenuously objected to merit increases and felt they might be against the lai.. He asked %what the merit increase progranm was, and asked how the Compa- ny arrived at merit increases. Before Whipple could answ er., urman accused the Company of surface bar- gaining and stated he would like for it to conic up w. ith a proposal on seniority and dues checkoff, indicating the Union might agree to something different from hat they had proposed. Whipple's reply w\as that the Compa- ny maintained its prior position and would not make anll more concessions until it had the Union's wage proposal which would permit it to determine the total economic impact. Burman then asked how the Company figured the cost of seniority and Whipple indicated he had nthl- ing to say to that; that it was a cost item. urman disa- greed, stating it was not fair to Furr's people not to ha\,e seniority. He again accused the Company of surface bar- gaining and indicated he felt they should "let the Board handle it from here on in." Whipple countered Burman's remarks by asking if the Union had a wage proposal, indicating that everything then unsettled was a cost item to the Company. Burman stated he had no wage offer; that they wanted to settle the noneconomic matters first. Burman again asked the cost on seniority per hour, per day, or per year, indicat- ing that the Company was engaging in surface bargain- ing if it would not answer. Whipple's reply was that the Company would meet with the Union any time. As the meeting drew to a close, Burman stated that the Union rejected the Company's "letters" of "the 26th and the 10th."" '7 He then asked what the Compan's merit increase program was and Whipple explained brief- ly that employees' work records, attendance records, and attitude were reviewed every 6 months by the depart- ment supervisor who thereafter made a recomniendation. The meeting was terminated without any agreement trn a future meeting date. By letter dated October 13. 1975. Whipple informed the Union, inter alia: sH Dear Mr. Brown: In the negotiation session of Friday, ()ctober 1(). 1975, the Company made the following offer 'The Company offers to continue its existing merit review program and to increase its hiring rate mini- mum to $2.50/hr.' The Union rejected this propos;l. The Company plans to put this last offer into effect. The increase in the minimum hiring rate of $2.50/hr. is proposed for the reasons listed below 1. The Federal Minimum Wage rate will increase from $2.10 to $2.30 per hour on January 1, 1976. It has been our practice to remain above the Federal Minimum Wage at our Quality Control Kitchens. 2. The Consumer Price Index has increased 8.6%h in the past 12 months. 3. An 'Across the Board' increase has not oc- curred at Quality Control Kitchens in over a ear. : ()bh i dils . ua r uefernc e t (i [ 1I, Ith ;111d Rcp I \I 2(1 [2 S " Sc ( i' ':h 42 8(( 9{0 I)ECISIONS OF NATIONA. I.A()OR RELATIONS 1()ARD 4. The Union has continually refused to make their wage demands known to the Company. At the time the minimum hiring rate of $2.50/hr. is placed into effect the rates of certain employees currently earning less than this rate will be in- creased accordingly. The merit Review Program will be continued. This Program which has been outlined a number of times during negotiations is as follows: Bakery Department-Hires in at minimum hiring rate, reviews every six months thereafter, and makes rate increases according to performance. Meat Department-Hires in at minimum hiring rate, reviews in 90 days and every six months there- after and makes rate increases according to per- formance. Cooked Foods Department-Hires in at minimum hiring rate, reviews in 30 days, again in 90 days, and every six months thereafter and makes rate in- creases according to performance. Frozen Foods Department-Hires in at minimum hiring rate, reviews in 30 days, again in 45 days, and every six months thereafter and makes rate in- creases according to performance. Maintenance Department-Hires in at minimum hiring rate, review every six months, makes rate in- creases according to performance. The Company is ready, willing and able to meet with you with respect to wages, hours, and working conditions, however, it is our plan to put the changes outlined above into effect on Monday Oc- tober 20, 1975. Very truly yours, R.D. Whipple for FURR'S CAFETERIAS, INC. On October 14, Whipple again wrote Brown to indicate that review in the frozen foods department was after 30 days, again in 90 days, and every 6 months thereafter (G.C. Exh. 43). Session 19 (January 20, 1976): This session commenced with the Union's chief spokesman, Burman, stating that the Union was willing to make some concession to satis- fy both parties. In addition, he indicated that proposals he did not touch on were proposals the Union felt the parties could agree on. The proposals (all company proposals) discussed during the morning portion of the session were: hours of work, layoff and recall, leave of absence, sick leave, lunch period, management rights, restrictions on organiz- ing, term of agreement, vacations, visitation, and wage and price controls. Whipple informed Burman that the Company had agreed to amend its proposal to indicate the workweek would consist of 5 consecutive days and Burman indicated he would tentatively agree if the term "for payroll purposes" was added. With regard to layoff and recall, Burman asked that the emergency language in the first paragraph should be changed to breakdown lan- guage. He opposed the second paragraph and Whipple explained that the Company had agreed to remove the "or lose his seniority and employment rights" language. Whipple also indicated the Company could come up with language regarding notification to employees (Union had requested certified letters, return receipt re- quested). Whipple merely reviewed the status of the leave of absence proposal, and Burman indicated the Union would like more than 30 days in the sick leave portion of the proposal. The parties agreed that lunch period had been agreed upon and Burman stated he would discuss the management-rights proposals with his committee. Burman erroneously stated he understood the Company had offered to reduce the probationary period to 90 days and Whipple agreed with the statement.5 9 Burman indicated the Union would accept the restric- tions on organizing proposal and it would accept the term of agreement proposal if it read "one year after rati- fication." Burman indicated he would like to discuss va- cations and visitation with the committee, and Whipple withdrew the wage and price proposal. Burman handed Whipple a separability proposal and the meeting was re- cessed for lunch. At the outset of the afternoon session, Burman indicat- ed all discussion regarding changes during the session was contingent on reaching agreement on a contract that day. He then accepted the Company's hours of work proposal, and indicated he would accept the layoff and recall proposal if "in the event of an emergency" and language providing for notification by certified mail at the last known address were added, together with a pro- vision giving employees 72 hours to respond after post- ing. He informed the Company the Union wanted a 60- day probationary period and that vacation and visitation rights were acceptable. Burman then commented they wanted dues checkoff and a pay increase, but did not know what the Company then had. Whipple stated the Company would give them a new list including new hires. Burman replied that was what they needed and asked if the Company could give them "the low and high." Whipple then asked if other items mentioned were still open to negotiation and Burman replied they would agree to everything as previously modified and tentative- ly agreed providing they reached agreement that day. The mediator asked if agreement were reached on six things, could they close a contract? He enumerated layoff and recall, leave of absence, probationary employ- ment, checkoff, wage increase, and separability. Burman answered affirmatively. Whipple then asked if the Union still wanted the checkoff clause it had proposed and Burman answered yes, but indicated there were other clauses it could propose. The mediator asked if the Com- pany would like to consider checkoff and Whipple said no, they wanted to talk about getting the employee list for the Union. After a clarifying statement by Whipple concerning merit increases the Union left the meeting to confer. Before Burman left the room, Whipple explained that the Union had requested a new list at a bad time because the Company was getting out end-of-the-year reports, in- 5! In its written cunerpropo.al gi: en to the Union on September 3. the Compan5r had proposed a 6-da! probhaitolary period See Resp Elxh 2 (122 R) FURR'S CAFETERIAS, INC. 9. cluding 14,000 W-2 forms. He informed Barman they could get the requested list to the Union by January 30. When Burman and the union committee returned to the room, Burman indicated they were willing to make a wage offer "anyway." He stated they were asking for a 20-cent-per-hour across-the-board increase, based on the highest paid employees within each job classification. Whipple claims he then asked, "Do you still want the list of employees?" and that Burman replied, "No, we trust you. " 60 After Burman voiced his wage demand, he indi- cated that one of the conditions of the Union's proposal was that all striking employees be returned to work. At the close of the meeting, Whipple observed that the Company had continued its merit review program and asked if it was O.K. to continue it thereafter. Burman re- plied, "It didn't do any good to object before. We do not object now." When they adjourned, the mediator and the parties agreed to meet next on January 30. Session 20 (January 30, 1976): A. L. Smith, Federal mediator, presided at this session. At the commencement of this session, Burman indicat- ed the Union was resubmitting the proposals it had sub- mitted at the January 20 meeting and he reiterated those proposals. The mediator then defined the areas where agreement was necessary, listing layoff and recall, leave of absence, probationary employees, dues checkoff, wages, and separability. Whipple observed that the return of all striking employees had been added by the Union. Burman indicated he did not think either of the parties had ever doubted that the employees would return to work. After Burman reiterated the Union's position on the open items, the company negotiators left the room. When they returned, Whipple stated the Company was "pretty firm" on three issues-checkoff, the across-the- board increase, and immediate return of the strikers. He further indicated the Company felt it could make some movement on the remaining items; that it would treat the strikers as economic strikers. Burman accused the Com- pany of surface bargaining. Whipple then explained the Company's position on the three major issues. He stated that checkoff was an expense to the Company. Burman replied they had Community Chest, insurance and Feder- al checkoffs, and giving the Union's checkoff would be little added trouble or expense. With respect to the across-the-board wage demand, Whipple indicated the in- crease in the minimum hiring rate from $2.25 to $2.50 per hour was an increase of 11.1 percent and he indicat- ed that continuation of the merit review program had substantially improved the pay of the Company's em- ployees within the past 3 months. He counterproposed that the Company continue its merit review program. With respect to the strikers, Whipple stated the Compa- ny contended they were economic strikers and it would 60 Burman testified that, when he returned to the room to voice the Union's wage demand, Whipple said, "OK, even without the list," and that he replied, "We trust you." meaning "we trust you to have the list by the 30th." Ronnie Brown testified Burman said, "We trust you to get the list for us." I credit Whipple as he was by far the more impressive witness and his testimony is in accord with Respondent's notes. follow the law as to each employee as each case came up. After leaving the room to discuss the matter, the Union returned and Burman expressed his dismay with the Company's position, commenting he had not seen the wage sheet the Company was to bring. He claimed there had been no indication the parties were in disagreement on the strikers returning before their last meeting, and accused Whipple of inserting extra issues to prevent set- tlement of the contract. Thereafter, Burman observed the Company's position on checkoff was very weak as the expense would be minimal; indicated the Union would bargain further on wages: and stated he could not turn his back on the people on the street or checkoff and they adhered to their positions. At one point during the dis- cussion of checkoff, Whipple informed Burman the Com- pany felt a majority of the employees no longer wanted the Union to represent them. When the discussion turned to wages, Whipple asked if the Union wanted to make another proposal and Burman's reply was that he did not feel the Company had made a counteroffer. As the meeting neared a close, Burman stated the Union was withdrawing any offer it had made at the ad- journment of the meeting. He observed that he had not received the payroll list they talked about at the last meeting. While Burman claims Whipple did not respond concerning the list, Whipple testified he read the follow- ing from the Company's minutes of the January 20 meet- ing: C. Do you still want the list? U. No, we trust you. Whipple further testified that Burman said nothing more concerning a list after he read from the Company's notes. I credit Whipple. When the parties informed the mediator they had nothing further to offer on the unresolved issues, the meeting was adjourned. Session 21 (March 3, 1976): Respondent's attorney, Robert Tinnin, and the Union's attorney, James Hicks, attended the session. Whipple and Burman remained the principal spokesmen for the Company and the Union, re- spectively. Little actual contract negotiation was accomplished at this session. At the outset of the meeting, the Union asked Whipple and/or Tinnin some 10 questions con- cerning the status of employees, the distribution of litera- ture at the Company, the history of the Company's merit increase program, and the Company's past practice rela- tive to seniority in layoff and recall situations. The 10th question requested enumeration of the issues which the Company felt were open for negotiation.s I' By letters dated February 17, 23, and 25, 1976, all directed to Whip- ple at an erroneous address, the Union requested in writing wage and other employee status information. Whipple credibly testified he received the correspondence on February 27. He mailed Brown a letter acknowl- edging receipt of the letters on that date and indicated therein that he would furnish the information shortly. The information was mailed to Brown on March 2 and a copy of the list was given to Burman during the March 3 meeting. See G C Exhs. 48, 50, 52, 53, and 54. FURR'S CAETERIAS. INC. 9111 902 DECISI()NS O()F NATIONAL LABOR RELATIONS BOARD After the Union requested the above-described infor- mation, the Company, pursuant to request, indicated it had decided not to rehire employees Joe Pena, Roosevelt Benson, Jr., Nathan Cage, Kenneth Williams, Eric Hill, Albert Gobea, and Mary Lopez, stating they were pro- viding information regarding those employees for the NLRB. The conversation then turned to a petition signed by employees, with Whipple indicating Respond- ent's supervisors did not participate in circulation of the petitions signed by 98 or 103 employees and delivered to Phillips during the period January 26 to January 30.62 The Union asked what impact the petition had on ne- gotiations and Whipple replied that the Union had sever- al options: it could continue to bargain for the certifica- tion year, an election could be called for, or the Union could walk away. Burman indicated the Union was certi- fied to bargain for I year and it intended to do just that. After the company negotiating team caucused, it re- turned to the room and indicated that it was withdraw- ing its proposal for a -year contract and offered instead to make the term the certification year. Whipple ex- plained the reason for the change was the feeling that it would not be fair to the employees who signed the peti- tion to enter a -year contract. The meeting ended with the Union signifying it would ask for another meeting when it had digested the information requested. Session 22 (April 7, 1976): This bargaining session was the last meeting between the parties. Prior to the meeting Respondent had mailed the Union several letters indicat- ing a correction in its merit review policy (for the frozen foods department) and its intention to grant designated merit increases to employees absent union objection. 63 The discussion at the April 7 meeting, attended by Re- spondent's attorney, Tinnin, and the Union's attorney, William Baab, was related primarily to merit increases. As Attorney Baab was new to the negotiations, some time was spent in review of the Company's merit review program. Thereafter, the Union objected to the merit in- creases the Company proposed to place into effect, claiming the Company had systematically discriminated against striking employees by awarding merit increases to employees who had worked during the strike, while refusing to grant "structured increases" to everyone. The Union proposed that the Company remedy the situation by granting similar increases to the people on strike so they would have them when they returned to work. The Company denied that its merit increases were discrimina- tory and stated its position was that it would grant the proposed merit increase and continue the merit increase program. After obtaining answers to several questions relating to specific individuals and ascertaining that the Company intended to continue to treat the former striking employ- 62 Phillips testified that various employees delivered petitions to him at the plant. They all contained the wording: This is to advise you that the employees who have signed their names below do not wish the meatcutters union or any other union to represent them, that we wish to decertify the Union when it is time to do so, and we respectfully request that the Company discon- finue recognizing the Union as the exclusive representative of the employees of Furr's Quality Control Kitchens [G.C. Exh. 1351 "' See G.C Exhs 55. 56. and 65. ees as economic strikers, the Union indicated that its po- sition on all other contract items remained the same. When the Company indicated its position was un- changed, the meeting was adjourned. H. The Strike and Related Events 1. Inception of the strike Respondent's QCK employees commenced a strike on September 17, 1975, and thereafter engaged in picketing of its cafeteria operations until the Union informed Re- spondent by letter dated February 11, 1976, that the strikers were unconditionally offering to return to work.6 4 The General Counsel contends the strike was an unfair labor practice strike from its inception and was permit- ted, over objection by Respondent, to adduce evidence intended to reveal what motivated the employees to strike. The evidence offered, which is summarized below, related to events which occurred at a September 11, 1975, union meeting and documentary evidence in the form of pamphlets distributed by striking employees to Respondent's cafeteria customers during the strike. Marion Ramon described the September II union meeting by indicating that it was attended by some 30-35 of Respondent's employees who listened to what Ramon, Ronnie Brown, and members of the Union's bargaining team had to say. Ramon testified he reported that some 16 bargaining sessions had been held and the Company's rigid stand on seniority and job security was making agreement on a total package virtually impossible. He went on to state that the Union had refused to make a wage proposal because important noneconomic issues had not been agreed upon. He cited seniority as an exam- ple, and stated that seniority protection in layoffs and re- calls was more important than money. After describing what had been agreed upon and the open items, Ramon informed those gathered at the meeting that he did not think the Company wanted to agree to a contract and he did not think they ever had any intention of agreeing to one. The pamphlets distributed by strikers during the pick- eting consisted of statements which indicated what the parties had been unable to agree upon during negotia- tions, statements that employees were being deprived of provisions they felt they needed, and statements indicat- ing the Union felt the Company had engaged in surface bargaining. 65 2. Terminations related to the strike At the conclusion of the strike, Respondent treated the majority of the striking employees as economic strikers and returned them to work as work became available. The General Counsel contends that all strikers were enti- tled to immediate reinstatement upon their unconditional offer to return to work which occurred on February 11, 64 See G.C. Exh. 46 6" See G.C Exhs 122-128. FURR''S CAFFTFRIAS.S INC. 9( 1976.66 Additionally, he contends that Respondent dis- criminatorily denied reemployment to seven employecs because they exercised their Section 7 right to engage in protected concerted activity; i.e., strike activity. Those employees are Roosevelt Benson, Nathan Cage, Albert Gobea, Mary Lopez, Kenneth Williams, Mary Jane Montoya, and Rosa Alvarado. Respondent contends the first five named individuals were terminated because they engaged in strike misconduct; that Montoya quit; and that Alvarado was not rehired as she failed to abide by the recall procedure agreed upon by the Company and the Union."7 The evidence offered by the parties in sup- port of their respective positions is summarized below. a. The alleged strike misconduct During the course of the strike, Respondent's acting personnel manager, Ricky Knox, investigated alleged in- cidents of employee misconduct on the picket line by in- terviewing cafeteria customers. Knox summarized var- ious statements allegedly made by employees to custom- ers and these summaries, which were not shown to have been read, approved, adopted, or sworn to by the cus- tomers, are in evidence as an attachment to General Counsel's Exhibit 77. Respondent contends that the in- formation in the statements, which are admittedly hear- say documents, justified a good-faith belief that the em- ployees had engaged in strike misconduct and that, ac- cordingly, the terminations were lawful. The statements assert that employees engaged in the following conduct. 1. That Lopez told a Harris family on September 18, 1975, at the cafeteria located at 50th Street and Canton Avenue "that she had baked some of the bread for the cafeterias at the Quality Control Kitchens and that she always put roaches in it." 2. That on September 22, 1975, at the cafeteria located in the Family Park Shopping Center, Lopez and an un- identified male striker conversed with Knox and one Steve Watt. Lopez allegedly stated, inter alia: they should not eat the cafeteria food because "there were roaches, rat hairs and things in the food"; that food dropped on the floor during processing was picked up and put back with food being processed for the cafete- rias; that unhealthy workers without health cards were employed at the QCK; that one employee who prepared food had a big sore on his arm, which was about twice normal size and all black and blue; and that the QCK would be raided that day or the next because someone was bringing in aliens from Mexico. 3. That on September 19, 1975, Gobea made a male customer mad while attempting to hand him a leaflet at the Town and Country Center. 4. That on September 20, 1975, Gobea told a customer named Taylor at the Town and Country Shopping 66 The General Counlsel indicated that if it is found that the strike as an economic strike. he does not contend that Respondent's rehire proce- dure iolated the Act R Without waiving its right to claim that the strike was an unfair laior practice strike and striking emplosees 'were entitled to immediate rein- statement s hen the5 unconditionall), offered ito return to s irk. the Union agreed to a recall procedure outlined in Attornlle Tinnin' Iebru- arv 13. I1q7. lettr to Ronnlic tirosnl See C F xhs 47 and 4 4 Center cafeteria that the food in the cafeteria had roaches and rat hairs in it. 5. That Cage, Williams, and Benson blocked the pas- sage of the cafeteria entrance at the Caprock Shopping Ceitcr on September 23, 1975, temporarily preventing one Mr. Lockhart and his party from entering the cafete- ria. 6. That on September 23, 1975, Cage, Benson, and Williams told one Mr. Watt at the 50th Street and Canton Avenue cafeteria that: there was foreign matter in the food; that they did not wash pans at the QCK and everything was dirty; that rats ate the food out of dirty pans; and that there are rchles and rats all over the QCK and the rats are not "your normal size rats." 7. That on September 19, 1975, Cage became "smart" and made comments to one Mrs. Brainer when she at- tempted to enter the cafeteria located in the Caprock Shopping Center, and that the employees blocked the woman's path to the door. When Gobea appeared as a witness, he denied that during the strike he made comments to customers about the quality of the food. He specifically denied that he told a customer at the Town and Country cafeteria that the food had roaches and rat hairs in it. He testified the only altercation with a customer he could recall was a situation wherein a man brushed a leaflet back, refusing to take it which caused him to state, "May God have mercy on your soul." Gobea testified Phillips told him on February 20, 1976, that he was ineligible for reem- ployment because he engaged in strike misconduct and he was guilty of unfaithfulness to the Company."" Employee Benson testified Phillips told him on Febru- ary 23, 1976, that he would not be rehired because of bad conduct during the strike. Benson asked what bad conduct and Phillips indicated he had discussed it with Ronnie Brown and Benson should talk to Brown about it. Benson testified he never said anything nasty to a cus- tomer during the strike and specifically denied telling customers the food had roaches in it. He denied that he blocked customers' entrance at the 50th Street cafeteria, and testified that Williams and Cage said nothing to cus- tomers in his presence regarding roaches. Employee Cage acknowledged during his testimony that Phillips told him after the strike that he was not eli- gible for rehire because of strike misconduct. Cage was not asked during the hearing whether he had engaged in the conduct attributed to him in the attachments to Gen- eral Counsel's Exhibit 77.69 Employee Williams testified Phillips told him on Feb- ruary 20, 1976, that he could not hire him back because of misconduct. Williams asked what misconduct and Phillips did not answer. Williams then asked if he [Phil- lips] had proof and Phillips replied he did, without expla- nation. Williams was not interrogated further concerning alleged strike misconduct during the hearing. -* rhe record reseals that Respondent did not ask the mplorcs, ;ac- cused f nmiscoiiduct if he5 had, in fact, committed improper acts 6. When Cage as on the stand, the General Counsel indicated a in- tention to coer Cage's alleged strike misconduct on rebuttal C age ras nol examined concerning alleged trike miscoldut on rehuital I U R R'S~~ ~~ C A.EI S ,N qt 904 DIECISIONS OF NATIONAL LABOR RELATIONS B(OARI) Employee Lopez testified Phillips told her on Febru- ary 19, 1976, that she would not be rehired because of misconduct on the picket line. She testified she asked what kind of misconduct and Phillips refused to discuss the matter. Lopez was not interrogated further during the hearing concerning alleged strike misconduct. b. The Montoya situation Mary Jane Montoya was originally hired by Respond- ent in April 1974. She quit the last week of May in 1974, and was rehired about June 25, 1974. She was laid off on February 13, 1975, and was recalled in May 1975. When the Union woin representation rights at Re- spondent's QCK, Montoya was selected as a member of the Union's negotiating team.7 0 She served as the Union's chief notetaker during the negotiations. Prior to the strike, while serving as a member of the Union's ne- gotiating team, she was given a merit increase of 25 cents. Montoya last worked for Respondent on August 29, 1975. At the close of that day she commenced her vaca- tion and was due to return to work on September 9. On September 8, she was ordered to the hospital by her doctor and she telephoned her departmental supervisor, Lamm, to request a leave of absence. She testified Lamm's response was "that considering the way things were at this time that he did not know whether he could give me a leave of absence or not." While Montoya remained in the hospital until Septem- ber 15, she was permitted to leave the hospital to attend the union meeting held on September 11 at which the employees voted to strike. She participated in picketing commencing September 17 and continued to picket throughout the strike.7 By letter dated October 27, received by Montoya on October 31, she was advised by Lamm, inter alia:7 2 On September 2, 1975, you were granted a 30- day leave of absence due to sickness. We have not heard from you since that date. Please let us know whether or not you are participating in the concert- ed action or whether you have chosen to abandon employment. Please respond o this request within five (5) days from the date of this letter. If we do not hear from you within this time, we will assume that you are a voluntary quit. By letter dated November 3, Montoya informed Lamm (G.C. Exh. 145):73 Re: Letter dated 10-27-75-Received 10-31-75 Dear Sir: 10 Montoya was the Union's observer at the December 18, 1974, elec- tion. 71 Montoya testified, without contradiction, that she was observed picketing during the strike by Vinson, Phillips, Whipple, Lamm, and Rhodes. Additionally, the record reveals that Mary Jane Montoya attend- ed the October 10, 1975, bargaining session as a member of the Union's negotiating team. 72 See G.C. Exh 144. ?3 While there was some dispute between the parties concerning regis- try receipts in connection with this letter, counsel for Respondent ad- mitted the letter was received shortly after November 3, 1975. Please be advised that I neither wish to quit or relinguish my service with the Company. I am not prepared, however, to return to work as long as there is a labor dispute. Respondent did not reply to Montoya's letter dated No- vember 3. Instead, when she reapplied for employment in early February, Phillips informed her she was consid- ered to be a voluntary quit and would not be rehired until all the other strikers had been recalled. The record fails to reveal whether Montoya was, in fact, rehired during calendar year 1976. c. The Alvarado situation Rosa Alvarado was hired by Respondent on October 19, 1972. She remained employed continuously thereafter until the strike. When the strike ended, Alvarado, together with the other strikers, applied for reemployment with Respond- ent. In March 1976, she was sent a form letter inquiring whether she was still interested in employment at Re- spondent. She testified she returned the letter indicating she was still interested in reemployment at the QCK. On April 30, Respondent sent her a similar letter making the same inquiry.74 She admitted during her testimony that she failed to respond to the April 30 inquiry. I. Respondent's Withdrawal of Recognition From the Union On June 1, 1976, Respondent's attorney, Tinnin, ad- vised the Union, inter alia: It has become increasingly clear that your client no longer represents a majority of the employees in the unit certified by the National Labor Relations Board as appropriate for collective bargaining. Among other things, the execution in January 1976 by 98 of 103 employees employed at the Furr's Quality Control Kitchens of a petition stating that those requesting that the company cease negotia- tions with your client, together with the filing of a decertification petition on April 9, 1976, have caused the company to entertain a serious and good faith doubt that your client continues to represent a majority of the employees in the unit certified by the Board as appropriate for collective bargaining. The election petition was, of course, dismissed be- cause of the pendency of the complaint charging the company with refusal to bargain in good faith. However, as I stated before, the company is confi- dent that its position with regard to the unfair labor practices complaint will ultimately be vindicated. Therefore, unless required to do otherwise as a result of the ultimate outcome of the unfair labor practice proceedings, the company will decline to meet with your client further for purposes of collec- tive bargaining. The company will, in the interim, continue the previously agreed upon procedures for reinstatement of those strikers who have indicated a 74 See Resp. Exh. 15. FURR'`S CAFFIERIAS IC.C 905 desire to return to work. Should you wish to obtain a dismissal of the complaint pending against the company and proceed to a Board-conducted elec- tion, we would be pleased to cooperate ill every reasonable way. When he appeared as a witness at the hearing, Wayne Smith, Respondent's vice president, testified that Re- spondent was also motivated to withdraw recognition from the union because the union bargaining committee had become obstructive and was not making any con- structive offers and the Company was convinced the Union was merely trying to build a case against it. J. Conclusions I. The alleged refusal to bargain Paragraph 18 of the final amended consolidated com- plaint alleges that Respondent violated Section 8(a)(5) of the Act in 10 respects during the period December 19, 1974, to June 1, 1976.75 Those allegations will be dis- cussed before the alleged 8(a)(1) and (3) allegations for purposes of convenience. a. Alleged change in sick leave-taking policy Subparagraph (a) of paragraph 18 of the complaint al- leges that Respondent unilaterally change its sick leave policy on or about December 19, 1974. For the reasons set forth below, I find that insufficient evidence was of- fered to prove this allegation, and I recommend that it be dismissed. The General Counsel sought to prove a December 1974 change in Respondent's sick leave policy through the testimony of employees Billings and Santos, which is fully set forth in this Decision. Billings' testimony merely reveals that on one occasion the assistant meat depart- ment manager departed from normal company policy by telling her to leave for a doctor's appointment earlier than usual and to refrain from reporting back to work that day. Significantly, the department manager asked the employee the following day why she had departed from the normal policy. Santos' testimony established little, if anything, as she could not recall when she had visited the doctor. In sum, the evidence reveals that Respondent's normal policy in an employee doctor visit situation is to require notice of the appointment the day before it is to occur and to permit the employee to leave work shortly before the scheduled appointment. The employee is to return to work after the appointment if significant worktime re- mains. The General Counsel failed completely to show that Respondent changed its policy in December 1974. All he has shown is that Hardin varied from the policy on one occasion. I find the evidence is insufficient to prove the violation alleged. b. Alleged unilateral change in glove issuance policy Subparagraph 18(b) of the complaint alleges that Re- spondent unilaterally imposed more stringent control over the issuance of work gloves about December 30, 7 See C Exh l(rr). pp 7 1974. 1 find the allegation to be without merit for the reasons set forth below. The facts relating to this issue are set forth earlier in this Decision. They reveal that the manager of the meat department carefully inspected rubber gloves which em- ployees desired to replace during the months of Decem- ber 1974 and January and February 1975, because Re- spondent's suppliers were unable to furnish sufficient re- placement gloves during the period in question. While one might conclude that Respondent had changed a policy had it required meat department em- ployees to work without gloves, the instant record merely reveals employees were simply told to use their gloves as long as possible for valid business reasons. I find the evidence is insufficient to prove the violation al- leged and recommend that it be dismissed. c. Alleged imposition of more onerous working conditions Subparagraph (c) of paragraph 18 of the complaint al- leges that Respondent unilaterally imposed more onerous working conditions on its QCK employees on or about January 20, 1975, by "speeding up its work." I find the allegation to be without merit. The General Counsel sought to prove the allegation through the testimony of employees Montoya, Lopez, Vigil, and Billings, which is fully set forth, supra, in this Decision. Montoya and Lopez sought to show during their testi- mony that work was speeded up in the nitrogen room of the cooked foods department commencing around Janu- ary 15, 1975. At best, that evidence merely shows that production varied from week to week and consequently nitrogen room employees processed more shrimp or fish during certain workweeks than others. Significantly, nei- ther Montoya nor Lopez indicated when testifying that they were taxed to the point of their ability at any time while working in the nitrogen room. To the contrary. Montoya indicated that, shortly after the December 18, 1974, election, production standards were changed in the department to the extent that nitrogen room employees were required to increase the rate of shrimp processing from 35 pounds per hour to 40 pounds per hour, but she did not object to the change as she could clean 100 pounds of shrimp per hour. 76 In sum, I find that, by merely offering testimony to reveal the quantity of foods processed in the nitrogen room before and after mid-January 1975, the General Counsel has failed to show that Respondent speeded up the work of such employees sufficiently to make their work more onerous as alleged in the complaint.77 Similarly, employee Vigil's testimony fails to show that the work of meat department employees was made i Mlontoya's recolleclton s:as fault as illustrated by Respondent's production standards then i effect reseals employees ere expected to process 55 to 85 lbs" of shrimp per hour (See G C Exh 23). '7 With exception of the Aorkweek beginning Januarx 12, 1975. s hen itrolgen employees processed 4) cases (if ish. and the korkwseek begin- ning Fehruar% 3. 1975. hen the same employees processed an extra 25 cases of shrimp. the pt- mid-January prolduction clo, el approximates pre-mid-Jallnuar. 1975 productionl i the nitrogen room See Resp Exhs 21 ianid 2 1(;I) FLRRS CAFLIERIAS. INC 905 I)tLCISI()NS ()F NATIONAl. I.AB()R REI.AI()ONS BO()ARD more onerous after January 20, 1975. Vigil merely testi- fied he was told to speed up his production to match that of his fellow employees. As the record reveals Respond- ent had just enlarged its meat department and had in- stalled additional time saving equipment shortly before Vigil was admonished to work harder, the employees' testimony clearly fails to show that the work performed by meat department employees was more onerous after January 20, 1975, than it had been previously. Remaining for discussion is the testimony of Billings which was to the effect that she was assigned to more onerous work in the chicken room from mid-January until February 14, 1975. The record reveals that Billings was removed from the cutlet line where girls worked as a team and was assigned to work handling chickens, ad- mittedly wetter work, for 3 weeks. I credit Phillips' testi- mony that this employee was assigned to chicken room work because management knew she had future doctor appointments and her assignment to chicken room work would produce less disruption when she was absent. Moreover, I note that Respondent's records reveal she worked only 9 full days and 2 partial days in the chicken room during the 3-week period in question. Accepting Billings assertion that no female employee had previous- ly been assigned to work in the chicken room for as long as 3 weeks, I find that discussed evidence is insufficient to show a work assignment and/or policy change which could be made only after notification to and bargaining with the Union. For the reasons stated, I recommend that paragraph 18(c) of the complaint be dismissed. d. Alleged unilateral layoff of approximately 20 employees on February 13, 1975 The facts concerning the February 13, 1975, layoff are documented earlier in this Decision and repetition here would serve no useful purpose. In its brief, Respondent contends that the fact that Ronnie Brown telephoned Smith to ascertain why one employee who was more senior than employees retained in her department was to be laid off establishes that the Union was given notice of the layoff. Similarly, Re- spondent contends that Smith's reply to Brown's in- quiry-that Respondent did not observe seniority when selecting employees for layoff-demonstrates that Re- spondent was willing to negotiate with the Union con- cerning the layoff. I find that such contentions are with- out merit. Having won the December 18, 1974, election, the Union was entitled to participate in the selection of employees to be laid off. It was not afforded the oppor- tunity to do so. Consequently, I find that Respondent violated Section 8(a)(5) of the Act as alleged by failing to notify the Union of the February 13, 1975, layoff and by failing to negotiate fully with it concerning the antici- pated layoff. 7 8 Assuming, arguendo, that the layoff of February 13, which was admittedly justified by economic circum- stances, was lawfully effectuated, there can be no doubt whalsover that Respondent uilaterally altered the se- ' St'. %1awhr .laA ad ,'ir 5t. r Iroa r- (o rp? ih . 2 1) N RH 1(54 ( 1'1771. 11,1 Il c sc al ill ill t *) thatLI (mst niority rights of employees involved in the layoff when it recalled them. While Responident steadfastly mainitainied it had no recall policy I view the Februar 10). 19475. letter which was given to employees who would be in- volved in the layoff as a statement of policy as the letter clearly indicated that iemlployees who remained Ii l ayoff for more than 30() days vould be considered to be ternii- nated.7 " Respondent admittedly chan ged its thinking in late April or early May and unilaterally decided to bridge the seniority of employees recalled to the same department if they had remained in layoff for less than 3- 1/2 months. 80 By effectuating the described chanige in policy without notification to and bargaining with the Union. which had then been certified as the exclusive collective-bargaining agent of its employees, I find that Respondent violated Section 8(a)(5) of the Act.' ! e. Alleged unilateral grant (/ merit increases- Subparagraphs (e) and (f) of paragraph 18 of the coni- plaint alleged that Respondent violated Section 8(a)(5) of the Act by granting employees merit increases: (1) during the period May 6 to June 25, 1975; (2) during the period October 17, 1975 to February 23, 1976; and (3) On April 19 and 26, 1976, and on May 24 and 31, 1976. (I) The May 6 to June 25, 1975, situation The record reveals that during the period of May 5 to June 6, 1975, Respondent awarded 23 persons employed at its QCK merit increases, which ranged in amount from 10 cents to 25 cents per hour. 8 It is undisputed that the Union was not notilied of the raises before they were given. The General Counsel contends that Respondent violat- ed Section 8(a)(5) of the Act by awarding the merit raises under discussion \without notification to and bar- gainitg with the Union. Respondent contends that it was merely maintaining the status quo and it observes that its failure to grant the increases pursuant to its established policy would have constituted a violation of the Act. Respondent relies upon the testimony of its director of engineering, Vincent, to establish that it has had an es- tablished merit review program since early 1974. Absent documentary evidence which would bear out Vincent's claim, I refrain from crediting his assertion as he ad- mitted that merit reviews were not always made in timely fashion until after the Union won the election and the testimony of the General Counsel's witnesses reveals that merit increases were given at irregular intervals before the Union was certified. In sum, while I find that Respondent did reward employees by giving them merit increases before the Union was certified, I conclude that such wage increases were in no sense automatic as the SI (S C( tE Xl 2 " Rcsponden acted uLnilatally isCpitC the LuonL (IeIaiLd h letter ,laled April 5, 1975. thail il bargaino vilh hc lim n e,,nluorll .,itl r- pect to l vloff, iail rcalls, Sec t C txl] 7 ' As h I lUnion was presented mith a ,'ai ai(ot p/li the It1111111d dll 1.t1 sill rllCotIICrI IIg Ihc lalLrfl hich occurrcld at the carl bhargainllllg ss- c,1l1 Could lot hb dlCtillCL teo C OisiltUic g ood-lahiltl, i ngl)lltll .l . . .. ing i11L rights I cIpihcXCs 1i.,,,i1c(d i the .asfI - Sc (i F tib, 121 1t n1 CCpla>cc rcll iCr'llyrxc - 1 [ I 1 ll L 1 15 kcllsN iCT ' laTt 90 FURRK'S CAFFFEIAS. INC. 907 department managers decided when review would be ac- complished. whether the employee would be given a raise, and the amount of the raise. Accordingly, I find that, prior to the time the Union was certified, the merit increases given by Respondent to its employees could not be characterized as automatic in- creases which involved little discretion. To the contrary, the increases were given at unpredictable time intervals, and a large measure of discretion was involved in the award of each increase. In N.L.R.B. v. Renne Katz. Alfred Finkel and Murray Katz d/b/a Williamsburg Steel Products Company, 369 U.S. 736 (1972), the Supreme Court held that where merit increases are shown not to be automatic and they are attended by a large measure of discretion they are bargainable issues. I find this to be the case in the present situation and conclude that Re- spondent violated Section 8(a)(5) as alleged by granting merit increases to 23 employees during the period May 5 to June 6, 1975, without consulting the Union or negoti- ating with it regarding such wvage increases. N.L.R.B. v. Katz, supra, State Farm Mutual Automobile Insurance Company, 195 NLRB 871 (1972); and Allis Chalmers Corporation, 237 NLRB 290.83 (2) Merit increases given during the strike During the period June 25 to September 17, 1975, Re- spondent, pursuant to its agreement with the Union, awarded employees merit increases and thereafter noti- fied the Union by letter that it had given such merit in- creases84 By letters dated October 2 and 3, 1975, and telegram dated October 3, 1975, the Union demanded that Respondent cease giving further merit increases to employees "without negotiating with the Union." 8 As indicated above, the Union reiterated its objection to Re- spondent's stated intention to continue to award employ- ees merit increases at the October 10, 1975, bargaining session. Thereafter, on October 13, Respondent informed the Union by letter that it planned to, inter alia, continue its merit review program effective October 20, 1975. The last sentence of the letter stated (G.C. Exh. 42): The Company is ready, willing and able to meet with you with respect to wages, hours, and working conditions, however, it is our plan to put the changes outlined above into effect on Monday, Oc- tober 20, 1975. The Union did nor respond to Respondent's October 13 letter. The record reveals that during the period October 20, 1975, to January 12, 1976, Respondent granted some 66 -:' Reed Scnmic Compuani \ NL R B., 440 F.2d 598 (5th Cir 1971. Barko Ildraudlic. Inc. 225 NI RB 1379 (1976) .4lli/d Produc ti Corpora lion 218 NLRH 1246 (1975): Jfjio Manufacturing Co. a Divlo of Baill Corporarion. 211 NLRH 787 (1974), Concord Duco-Prep Inc., 2(7 N.RB 981 11973)1 and Southeaterrn MWchtgan Gas Compani. 198 NLRB 1221 (119721. cited by Respondent in support o its contenion that discontinu- ance ofr it merit increase program rather than coninuance ofr same w ould hae violated the Act, are itapplicah le as each of those cas., insol ed automatic increa;es aidor Incrcalsc, hich were not attended h a large measure of discrction " Sec, for emnlple. (C Frh 33 iand 14 "" G C Ealh, 37. 38. lid 3) merit increases to its employees in amounts varying from 10 cents per hour to 25 cents per hour. The vast major- ity of those merit increases were 25-cent increases. It is undisputed that the Union was not notified of the in- creases before or after they were given. 86 As indicated hereinbefore supra, Respondent inquired at the January 20, 1976, bargaining session whether the Union objected to continuation of the merit increases program and Burman replied it had done them no good to object pre- viously and they did not object then. Respondent contends that it was lawfully entitled to grant the 66 merit increases described because the parties reached impasse on the matter of merit increases at the bargaining session held on October 10, 1975. The Gener- al Counsel contends that with or without an impasse Re- spondent could not continue to grant employees merit in- creases once the Union insisted on bargaining concerning such increases. Having previously found that the merit increases in question involved a large measure of discre- tion, I agree with the General Counsel's position and conclude that Respondent was obligated during the period from October 10, 1975, to January 20, 1976, to give the Union prior notice of each merit increase it an- ticipated giving, thus affording the Union an opportunity to bargain concerning such increase(s) if it so desired. As Respondent failed to notify the Union of the increases and failed to afford it an opportunity to bargain regard- ing them, I find it violated Section 8(a)(5) as alleged by granting merit increases during the period described (3) The April 19 and 26 and May 24 and 31, 1976. merit increases Subsequent to the January 20, 1976, bargaining session, Respondent gave the Union advance notice by letter of anticipated merit increases and, in each instance, indicat- ed it would negotiate regarding the proposed in- creases. 87 The Union raised no objection to the proposed increases until March 16, 1976, at which time Brown in- formed Whipple by phone that the Union desired to bar- gain concerning merit increases proposed by Respondent in a letter to Respondent dated March 12, 1976. Thereaf- ter, on April 7, the parties met and merit increases were Y B letter dated March 12, I197. Whipple Irlformed Brown no Inoicc "a, gilen because (G C Exh 57) At no time did the Union ever specifically request that the Company notify it in advance of its intention to grant merit increases The Union and the Company had reached an impasse oin the Company's continuing its existing merit eiev program and to ncrease It, hiring rate minimum to 2 50 per hour as %ell as all other subjects then on the bargaining table The Union did not respond to ms letter, dated October 13. 1975 herefore, the reason that the Coim- pany didn't feel obligated to give the Union notice of merit rate in- creases was because the Union had made a blanket objectionl to all lierit rate increases. the Company had taken the position that the! were going to continue them, the parties reached a Impasse on this issue, and since the Union didn't want it If the Union had requested notification. the Company would hake given it Io the Union. as ei- denced by the fact that hen they ubscquentl. requested such n- formatlion the Compuny responded promptl s: SignificantlI, Respondent clarified its itrt( Increase program ceien further on March 12, 1976. hb ifiorming Brovisn h ller that the proce- hlure fllxed ill the frozent frood , department x. orIllethillg other thal the pro Ledure outlelll d il R espondent's ltters to the Lrittit da.ted ()ci- her I aid 14. 7 Se ( ( t h 5S FL'RRS CA UFRIA. INC 907 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed. During the discussion, the Union's attorney, William Baab, indicated that the Union did not desire to delay Respondent from giving merit increases to employ- ees then working in the plant but it desired that Re- spondent agree to give each of the returning strikers a merit increase upon their resumption of employment. 8 8 The situation became somewhat confused several days later when Brown informed Whipple by letter dated April 9, 1976, that the Union objected to rate increases which Respondent proposed to put into effect Monday, April 12, 1976. In the letter Brown stated, inter alia (G.C. Exh. 75), "The Union has constantly objected to these increases and the Company continues to put them into effect." Thereafter, by letters dated April 20 and 30. 1976, Union Attorney Hicks requested that Respondent refrain from putting further increases in effect until Re- spondent produced at a bargaining session "all factors and information which it has taken into consideration in proposing such increases." 89 By letter dated May 7, 1976, Respondent's attorney, Tinnin, replied to Hick's above-described correspondence stating, inter alia (G.C. Exh. 88): This is in response to your letter of April 30, 1976, addressed to Mr. Robert Whipple. As you are well aware, the subject of continuing the employer's merit increase program during collective bargaining has arisen on numerous occasions in bargaining ses- sions. At the last collective bargaining session and in a letter written subsequent to the session, Mr. Baab of your office stated that the local union had no objection to the merit increases themselves. Rather, he stated his objection was to the alleged discriminatory effect that the continued granting of merit increases would have on striking employees who had not been reinstated. However, the only al- ternative he suggested was an across-the-board in- crease applicable to all employees. This proposal was rejected by the employer. As we have stated in the past, it is the employers position that it will continue to grant merit increases unless and until such time that the parties are able to agree upon an alternative. If the union has any new or additional proposals, we are willing to dis- cuss them. While Respondent refrained from effectuating proposed increases for some undetermined time subsequent to its receipt of Brown's April 9, letter, it admittedly granted the merit increases it had proposed subsequent to May 7, 1976. Pointing to cases such as Clarkwood Corporation, 233 NLRB 1172 (1977); Medicenter. Mid-South Hospital, 221 NLRB 670 (1975); and American Buslines. Inc., 164 NLRB 1055 (1967), Respondent contends, in effect, that the Union waived its right to bargain concerning the merit raises it proposed in April and May 1976 because, after receiving notification of the intended merit increase actions, the Union merely objected to Respondent's overall merit increase program, but failed to request bar- a" See i C. Exh. 72 'o See (;,C Exhs. 80 and 83 gaining concerning the specific increases proposed. Had Union Attorney Hicks not written his letters of April 20 and 30, described briefly above. I might be inclined to agree with Respondent's contention. However, as I view Hicks' letter of April 20 in particular, it appears the Union did request subsequent to the time that it was noti- fied of Respondent's intention to grant specified merit in- creases to named employees that Respondent meet with it to discuss "all factors and information which it has taken into consideration in proposing such increases." Such request by Hicks amounted to more than a mere blanket objection to the merit increases which had been proposed. In the circumstances, I find that the Union did not waive its right to bargain concerning the April and May merit increases contemplated by Respondent. Ac- cordingly, as Respondent ignored the Union's request for bargaining concerning those contemplated increases, and effectuated them unilaterally, I find it violated Section 8(a)(5) of the Act, as alleged. f. The alleged refusal to meet at reasonable times Subparagraph (g) of paragraph 18 of the complaint al- leges that Respondent failed to meet with the Union at reasonable times between April 15 and June 4, 1975, and between March 16 and April 7, 1976. These allegations are not supported by record evidence and I recommend that they be dismissed. With regard to the commencement of negotiations, the record reveals that after the Union was certified on April 7, 1975, Brown requested bargaining and that Respond- ent furnished it with specified information by letter dated April 15. Three days later, Smith replied it would take some time to gather information and stated he thought negotiations could commence within the next few weeks. Respondent subsequently furnished the requested infor- mation on May 12, and on May 16 the Union suggested an original meeting date on May 27, 28, or 29. Respond- ent counterposed meeting on June 2, 3, or 4 contending that LaVern Vinson, a member of its negotiating team, would be out of town on the dates suggested by the Union. Patently, the situation described fails to reveal that Respondent unduly delayed commencing negotia- tions with the Union. Similarly, unavailability of persons who intended to participate in the negotiations accounts for the approxi- mate 3-week delay in scheduling a meeting between March 16 and April 7, 1976. Correspondence between the parties reveals that each desired that his attorney attend the bargaining session which was to follow the March 3 session. Thus, the record reveals that Union Representative Brown telephoned Whipple on March 16 indicating the Union could not meet until March 23 and desired a session on March 23, 24, or 26. Additionally, Brown indicated the Union could not meet during the week of March 29. By letter dated March 17, Whipple informed Brown that Respondent could not meet on March 23, 24, or 26, but could meet on April 6, 7, or 8.90 Brown responded by letter dated March 19, indicat- ing the Union would like to meet sooner: i.e., on March "'" See(iC tCxh 63 FURRK'S CAFETFIAS, INC. 909 29 or 30 or April 1.91 Whipple then replied by letter in- dicating that Respondent's attorney was unavailable on March 29 and 30 and April 1 and 2, and proposed meet- ing on April 5"92 Thereafter, the Union proposed an April 8 meeting as its attorney was unavailable on April 5. Finally, a meeting date of April 7 was agreed upon as both attorneys were available on that date. 9 Viewing the record facts summarized above, it is clear that the difficulty experienced by the parties in arriving at a mutually agreeable meeting date during the period in question was caused by their respective desires to have counsel attend any meeting scheduled. As negotiations had become complicated by March 1976, neither party could be faulted for wanting to meet on a date when its attorney could be present. Accordingly, I find that the General Counsel has offered insufficient evidence to prove that Respondent unlawfully refused to meet with the Union at reasonable times during the period from March 16 to April 7, 1976, as alleged in the complaint. For the reasons stated I recommend that subparagraph (g) of paragraph 18 of the complaint be dismissed. g. Alleged refusal to furnish the Union with relevant information While subparagraph (h) of paragraph 18 of the com- plaint alleges that Respondent has at all times since about April 15, 1975, refused "to furnish the Union data relat- ing to names of unit employees, their addresses, their rates of pay, their job classifications, merit increases granted to such employees, the names of employees who were laid off, recalled, and hired between about Febru- ary 15, 1975, and February 11, 1976, and other data nec- essary to the Union's adequate representation of unit em- ployees," the General Counsel actually sought during the hearing to prove (in addition to failure to provide notice of merit increase) only three areas of violation, i.e., (I) delay in furnishing information from April 15, 1975, to June 25, 1975; (2) refusal to furnish cost information during bargaining; and (3) delay in furnishing requested information during the period January 20, 1976, to March 2, 1976. For the reasons stated below, I conclude that the General Counsel failed to prove that Respondent unlawfully refused to furnish the Union with requested information in timely fashion on the occasions in ques- tion. The basic facts concerning the first described alleged refusal to furnish information are set forth earlier in this Decision. In brief, by letter dated April 15, 1975, the Union requested that Respondent provide it with, inter alia, seniority information, employee classifications and their rates of pay, and enumeration of benefits then en- joyed by employees. Respondent acknowledged the re- quest on April 18 and thereafter furnished the informa- tion on May 12, 1975. To prove the alleged violation, the General Counsel relied exclusively on the time interval between the request for the data and the time the infor- mation requested was delivered to the Union. While he repeatedly asked Respondent's witnesses who testified at 91 See GC Exh 64 Y9 See G C Eh 66 9' See GC Exhs 67 and 69 the hearing whether the information could have been gathered more rapidly by using computers, no witness indicated that the information could have been gathered any faster than it was actually gathered. The record in this case reveals that the Union made numerous requests for information during the period of bargaining which extended from June 4, 1975, to April 7, 1976, and it further reveals that Respondent expeditious- ly furnished information which was requested in an un- ambiguous manner during the entire period of the negoti- ations. Consequently, absent evidence which would reveal that Respondent intentionally delayed furnishing the Union with the information requested on April 15, 1975, or probative evidence which would reveal that the information requested on the occasion could have been furnished more expeditiously, I am unwilling to find that Repsondent unlawfully failed to furnish the information under discussion in timely fashion simply because such information was not furnished more rapidly than it was. The second incident involving alleged refusal to fur- nish information concerns the alleged request by union negotiator Mauser that Respondent furnish cost informa- tion during a bargaining session. The facts regarding this alleged request for cost information are set forth in foot- note 51 of this Decision. I find no merit in the contention as I have credited Whipple's denial that he understood Mauser was actually requesting cost data on the occasion in question. The third alleged instance of refusal to furnish infor- mation arose at the bargaining sessions held on January 20 and 30, 1976. The facts regarding this allegation are set forth under the summary of the bargaining sessions set forth earlier in this Decision. I find no merit in the contention that Respondent then failed to furnish re- quested wage information as I have found that Respond- ent could have reasonably concluded that the Union no longer desired the information after it made a wage demand at the January 20, 1976, bargaining session. In this regard, I further find that the Union did not thereaf- ter effectively request the information in question until Brown's incorrectly addressed letters reached Whipple on February 27, 1976. The information requested was thereafter expeditiously furnished on March 2, 1976.9 4 In sum, I find for the reasons set forth that the Gener- al Counsel has failed to offer sufficient evidence to prove the allegations contained in subparagraph (h) of para- graph 18 of the complaint, and I recommend that the al- legations be dismissed. h. The alleged surface bargaining The principal issue litigated in this proceeding was whether, as alleged in the subparagraph (i) of paragraph 18 of the complaint, Respondent violated Section 8(a)(5) of the Act by negotiating with the Union in bad faith with no intention of entering into any collective-bargain- ing agreement during the period extending from June 4, 1975, to June 1, 1976. For the reasons set forth below, I conclude that Respondent failed to satisfy its statutory obligation as alleged. !"4 SeC tn 1 . uipra FLRR'S CAFETERIAS, IC 909 910 DECISIONS OF NAI IONAL LAB()OR REI.ATIONS BOARD Recently, in United Contractors Incorporated JMCO Trucking Incorporated. Joint Employer, 244 NLRB 72 (1979), the Board defined an employer's obligation in a bargaining situation stating: Section 8(a)(5) of the Act establishes a duty "to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement." N.L.R.B. v. Herman Sausage Company Inc., 275 F.2d 229, 231 (5th Cir. 1960). As the Supreme Court stated in N.L.R.B. v. Insurance Agents' Inter- national Union, AFL-CIO [Prudential Insurance Co- mapny of America], 361 U. S. 477, 485 (1960): Collective bargaining, then, is not simply an oc- casion for purely formal meetings between man- agement and labor, while each maintains an atti- tude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to, enter into a collective-bargaining contract. This obligation does not compel either party to agree to a proposal or to make a concession. N.L.R.B. v. American National Insurance Co., U.S. 395 (1952). However, the Board may, and does, ex- amine the contents of the proposals put forth, for, "if the Board is not to be blinded by empty talk and by the mere surface motions of collective bargain- ing, it must take some cognizance of the reasonable- ness of the position taken by an employer in the course of bargaining negotiations." N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 134 (Ist Cir. 1953), cert. denied 346 U.S. 887. The standard for assessing whether or not a particular course of bargaining meets the test of "good faith" was well stated by Administrative Law Judge Leff, which the Board adopted in "M" System, Inc., Mobile Home Di- vision Mid-States Corporation, 129 NLRB 527, 547 (1960), where it is said: Good faith, or the want of it, is concerned essen- tially with a state of mind. There is no shortcut to a determination of whether an employer has bar- gained with the requisite good faith the statute com- mands. That determination must be based upon rea- sonable inference drawn from the totality of con- duct evidencing the state of mind with which the employer entered into and participated in the bar- gaining process. The employer's state of mind is to be gleaned not only from his conduct at the bar- gaining table, but also from his conduct away from it-for example, conduct reflecting a rejection of the principle of collective bargaining or an underly- ing purpose to bypass or undermine the [u]nion manifests the absence of a genuine desire to com- pose differences and to reach agreement in the manner the Act commands. All aspects of the Re- spondent's bargaining and related conduct must be considered in unity, not as separate fragments each to be assessed in isolation. Applying the foregoing principles to Respondent's course of bargaining in the instant case, I am convinced, and therefore find and conclude, that Respondent from the inception of the bargaining did so in bad faith and with the.intent and purpose of avoiding agreement with the Union, and hence violated Section 8(a)(5) of the Act. I reach this conclusion based on the totality of the record and, in particular, upon the following consider- ations: I. As previously indicated, Respondent, in my opinion, engaged in a flagrant violation of Section 8(a)(5) of the Act when it unilaterally decided, subsequent to the Union's certification on April 7, 1975, to alter the senior- ity rights of employees then in layoff status by bridging their seniority if they remained in layoff status less than 3-1/2 months. Additionally, as contended by the General Counsel, Respondent, during the same prenegotiation period, met with its department managers and cautioned them to cease conducting merit reviews at irregular in- tervals and advised them that they should adhere to a definite schedule in merit review situations. Both of the described actions were in derogation of the Union's status and justify an inference that Respondent had de- cided prior to the time that negotiations began that it in- tended to continue to unilaterally determine the labor policies it would pursue notwithstanding the fact that the Union, by virtue of the December 18, 1974, election and the April 7, 1975, certification, was the exclusive collec- tive-bargaining agent of its QCK employees. 2. The record reveals that Respondent opposed virtu- ally all of the Union's proposals and offered instead pro- posals which, to the extent possible, merely codified ex- isting practices and policies at its QCK. At no time during the negotiations did Respondent significantly depart from its opposition to the Union's proposals on major items such as checkoff, union security, some form of plantwide seniority, improvement of employee fringe benefits, or wages. While lengthy discussion led to agree- ment on minor items such as rest periods, funeral leave, jury duty, lunch period, nondiscrimination, preamble, recognition, savings clause, term of agreement (at one point), and union notices, the only major item agreed upon was a grievance procedure containing provision for arbitration. Patently, agreement on the minor issues noted could not reasonably be expected to lead to con- summation of a meaningful collective-bargaining con- tract. While Respondent's conduct at and away from the bargaining table prior to the commencement of the strike justifiably convinced the union negotiators that Respond- ent had no intention of yielding on major items, includ- ing the broad management-rights clause which if includ- ed in a contract would have placed the Union in a less advantageous position than it would have been in with- out a contract, its conduct at the January bargaining ses- sions demonstrated that it would enter no agreement except on terms of its own choosing. Thus, even though the Union indicated during the January sessions that it was willing to capitulate on virtually all issues except checkoff, wages, and the return of strikers, Respondent made no movement whatsoever on those items. In my FURR'S CAFETERIAS. INC 911 view it was apparent to all on January 30, 1976, that, absent some Respondent concessions on the major items described, no agreement would be reached. As Respond- ent made no movement, I find it purposely sought to stymie the negotiations at that point and was then par- ticipating in negotiations without any real intention of reaching agreement with the Union. 3. As previously found, Respondent granted 66 unlaw- ful merit increases to its nonstriking employees during the course of the strike. The number of increases granted is quite significant as the normal QCK employee comple- ment numbered approximately 100 employees and ap- proximately 35 employees participated in the strike. Pa- tently, an employer bent on destroying a union's major- ity support can accomplish that task quite readily by awarding employees wage increases. In my view the record in this case clearly reveals that Respondent caused its nonstriking employees to abandon their sup- port of the Union during the strike by, in effect, reward- ing them for working rather than striking. If its purpose was not evident immediately, it became quite apparent during the January negotiating sessions when it flatly in- dicated that nonstriking employees had by virtue of merit increases already received the equivalent of the across-the-board increase then demanded by the Union and in its view the striking employees were entitled to no increase whatsoever. The evidence convinces me, and I find, that Respondent granted the merit increases in question over the Union's objection to dissipate the Union's majority status. Such conduct was clearly in derogation of the Union's status and it placed Respond- ent in a position wherein it could and did bargain with the Union on a take-it-or-leave-it basis. 4. Having found that Respondent could not rely upon the antiunion petitions executed by its QCK employees in mid-January 1976, or the subsequent filing of a decer- tification petition, it follows, and I find, that its insistence upon limiting the term of any agreement reached to the end of the certification year constituted a violation of Section 8(a)(5) of the Act. I find this to be another indi- cia that Respondent bargained with the Union without any intention of reaching agreement on the terms of a contract. 5. Finally, and by no means of minimal importance, I find for the reasons set forth below that Respondent un- lawfully withdrew recognition from the Union on June 1, 1976, and has refused to bargain further with it since that time. Accordingly, for the reasons stated, I find that Re- spondent has at all times since June 4, 1975, refused to bargain with the Union in violation of Section 8(a)(5) of the Act as alleged in the complaint. (I) Subparagraph 180) of paragraph 18 of the complaint alleges that Respondent violated Section 8(a)(5) by withdrawing recognition from the Union on June 1, 1976 As previously indicated, Respondent withdrew recog- nition from the Union and refused to negotiate further with it on June 1, 1976. The stated reasons for its actions were: (I) that 98 of 103 employees had executed a peti- tion which requested that the Company cease negotia- tions with the Union; and (2) that a decertification peti- tion had been filed on April 9, 1976.95 The circumstances under which an employer can with- draw recognition from a certified union were defined in Terrell Machine Company, 173 NLRB 1480, 1480-81 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970), where the Board stated: It is well settled that a certified union, upon expi- ration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues. This presumption is designed to promote stability in collective-bargain- ing relationships, without impairing the free choice of employees. Accordingly, once the presumption is shown to be operative, a prima facie case is estab- lished that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer af- firmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed ma- jority representative status; or (2) that the employ- er's refusal was predicated on a good faith and rea- sonably grounded doubt of the union's continued majority status. As to the second of these. i.e., "good faith doubt," two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time in which to undermine the union. It is equally well established that an employer in as- serting its good faith doubt of a union's continued major- ity status may not rely upon employee defections from that union resulting from its own misconduct. See Daisy's Originals, Inc., of Miami, 187 NLRB 251 (1970) enfd. as modified 468 F.2d 493 (5th Cir. 1972); Fremont Newspa- pers, Inc., 179 NLRB 390 (1969), enfd. as modified 436 F.2d 665 (8th Cir. 1970); and Boren Clay Products Corn- pany, 174 NLRB 895 (1969), enfd. 419 F.2d 385 (4th Cir. 1970). Applying these principles to the instant case, my prior findings necessitate a further finding that Respondent could not rely upon the mid-January antiunion petitions or the filing of a decertification petition by employees on April 9, 1976, as objective considerations which would support a good faith doubt of the Union's majority status. It follows, and I find, that Respondent violated Section 8(a)(5) of the Act as alleged when it withdrew recognition from the Union on June 1, 1976.9 g" During the hearing. Smith testified Respondent ,as motlialed to take the action h to additional factors ie . because the union hargain- ing committee had become obstructive and no progress Was being made, and because Respondent felt the Union w,,as simply meeting in al) attempt to build a case against Respondent a l'he Cieneral Counsel also contends that the anitunllon pcitins cannol be relied upon as In ohbjeclive considerationl demonTltra;lllg good-faith doubt of majornit sus .tllu s blCilSc siupers irs participaled in the circiulation of the petitions and signed them Iin les. of inm dpositionl of the issue. I finid it ulleccssar 5 to burden this declilon b dlslclsillil If this contentilll FtJRR'S CAFETERIAS. IC 911 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The alleged 8(a)(1) conduct Paragraph 7(b) of the complaint alleges that on August 18 and 31, 1976, Respondent violated Section 8(a)(l1) of the Act by threatening to select strikers for layoff first in event of a future layoff because of their participation in the strike. The General Counsel's witness, Ofelia Cardenas, testi- fied on direct examination that when she was rehired after the strike around August 18, 1976, she asked her departmental manager, Richard Lamm, whether people hired to replace strikers or the returning strikers would be laid off first in event of a layoff.9 ? She indicated that Lamm said the strikers would go first. On cross-examina- tion, the witness was asked if it were possible that Lamm told her that strikers rehired in new departments would have to start their departmental seniority from the date they returned. She indicated she did not recall the words Lamm had used but understood that "strikers would be laid off first." Lamm was not called as a witness. It is undisputed that Respondent treated returning strikers as economic strikers, and the record reveals that those employees rehired in departments other than their former departments were treated upon rehire as new em- ployees. Therefore, the legality of Lamm's remarks to Ofelia, Dixon, Garcia, and Torres turns upon whether the strike was an economic strike or an unfair labor prac- tice strike. It is well settled that a strike is an unfair labor practice strike if one of its causes is the employer's unfair labor practices, notwithstanding the presence of economic issues. National Fresh Fruit & Vegetable Company and Quality Banana Co., Inc., 227 NLRB 2014 (1977); C & E Stores, Inc., C & E Supervalue Division, 221 NLRB 1321, 1322 (1976). In view of Respondent's conduct prior to the strike, which I have found to be independently viola- tive of Section 8(a)(5) and (1) of the Act; my further finding that it failed to bargain in good faith from June 4, 1975, forward; and the fact that Union Representative Ramon urged employees to strike by informing them, inter alia, that the Union felt the Company was engaging in surface bargaining, I find the strike which commenced on September 17, 1975, was an unfair labor practice strike. As Respondent erroneously treated Cardenas and other employees as economic strikers, it necessarily fol- lows that the comment under discussion constituted a threat which violated Section 8(a)(1) as alleged and I so find. (3) The alleged 8(a)(3) violations; Respondent's refusal to reinstate immediately the striking employees By letter dated February 11, 1976, Union Business Representative Brown advised Respondent, inter alia, "Please accept this letter as offer by the union, Meat Cutters Local P-777, to unconditionally return all strik- ers to their positions of employment." 9 8 By letter dated February 13, 1976, Respondent's attorney, Tinnin, in- 97 Betty Dixon. Paula Garcia, and Rosa Torres were present at the time of the discussion. "9 See G C. Exh. 46 formed Brown that Respondent considered the strike to be an economic strike and he proposed a procedure for recalling strikers interested in reemployment on a prefer- ential basis.99 It is undisputed that no strikers were im- mediately rehired by Respondent.'oo With respect to the foregoing, I find that the Union's letter dated February 11, 1976, constituted a valid, un- conditional application for reinstatement of all striking employees whom I find to be unfair labor practice strik- ers. Accordingly, since it is well settled that unfair labor practice strikers are entitled to reinstatement after their unconditional offer to return to work, I conclude and find that Respondent violated Section 8(a)(l) and (3) of the Act as alleged by failing and refusing on February 13, 1976, and thereafter, to reinstate to their former posi- tions of employment those whose names are set forth in Appendix A of this Decision. ' 2. The discharges of employees Gobea, Benson, Cage, Williams, and Lopez a. The termination of employees who allegedly engaged in strike misconduct During the presentation of his case, the General Coun- sel established that Roosevelt Benson, Jr., Albert Gobea, Nathanial Cage, Kenneth Williams, and Mary Lopez par- ticipated in the strike and that Respondent refused to re- instate them at the conclusion of the strike. By offering such evidence, I find that the General Counsel proved a prima facie case of discrimination. Respondent defended the discharges by causing the General Counsel to stipulate that Respondent possessed the information contained in General Counsel's Exhibit 77 at the time of the discharges, by causing its witness Smith to testify that the information in the documents comprising such exhibit caused him to form a good-faith belief that the employees in question had engaged in strike misconduct which justified their discharge, and by causing its witness Phillips to testify that he informed each employee subsequent to the end of the strike that they would not be rehired because they had engaged in strike misconduct. While the General Counsel reserved the right to call the alleged discriminatees during the rebuttal stage of the hearing to testify concerning matters raised regarding them on cross-examination or during the presentation by Respondent of its case, he chose not to call them on re- buttal as he felt Respondent had failed to adduce suffi- cient evidence to establish its defense and shift the burden of proof to the General Counsel. "9 See G.C. Exh. 47. "" While the General Counsel contends that certain employees (those allegedly fired for strike misconduct. Montoya and Alvarado) were dis- criminatorily refused rehire even if the strike were an economic strike, he conceded that the remaining strikers were accorded the rehire rights of economic strikers. '' Excluded from Appendix A are Roosevelt enson, Jr., Nathanial Cage, Albert Gobea. Mary Lopez, and Kennlleth Williams. ho Were ac- cused of strike misconlduc, and Mary Jane Monltoya, who s as allegedly terminated for failing to report for work after being granted a leave of absence. The terminations of the named employees art treated herein- after. A FURR''S CAFETFRIAS, INC. 913 The Board defined the burden of proof of an employer and the General Counsel in a situation such as this in Rubin Bros. ootwear Inc., 99 NLRB 610 611 (1952): 1' 2 We are now of the opinion that the honest belief of an employer that striking employees have en- gaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate such employees, unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established, the General Counsel must go forward with evi- dence to prove that the employees did not, in fact, engage in such misconduct. The employer then, of course, may rebut the General Counsel's case with evidence that the unlawful conduct actually did occur. At all times, the burden of proving discrimi- nation is that of the General Counsel. This modifi- cation of the Mid-Continent [54 NLRB 912 (1944)] rule does no more than recognize the true nature of the General Counsel's obligation to establish all the essential elements of a charge that discrimination has occurred when a striking employee is refused his job. It merely places an employee's honestly as- serted belief in its true setting by crediting it with prima facie validity. Applying the above-stated doctrine to the instant case, it is clear that I must first determine whether Respondent effectively rebutted the General Counsel's prima facie case of discrimination by proving it had an honest belief that the five employees in question had engaged in strike misconduct when it refused to reinstate them. In this regard, the record reveals that Smith formed his belief by inspecting the documents contained in General Coun- sel's Exhibit 77, which purport to be typewritten ac- counts of customer interviews which were prepared during the strike by Respondent's personnel manager trainee, Ricky Knox. Neither Knox nor the customers re- ferred to in the documents in question testified at the hearing. In Ohio Power Company, supra, the General Counsel stipulated that Respondent had informed an alleged dis- criminate by letter dated October 3, 1973, that he had engaged in strike misconduct which damaged company property on October 2, 1973. While the Administrative Law Judge found that the letter was a self-serving docu- ment which was entitled to no evidentiary weight, the Board concluded it was sufficient to establish the em- ployer's honest belief that the employee had engaged in misconduct stating, "The Administrative Law Judge's finding that the letter was a self-serving document over- looks the fact that the letter was written the day after Anthony's misconduct, and that no evidence was ad- duced by the General Counsel to suggest that the dis- charge was pretextual or based on anything other than what was stated in the letter." 215 NLRB at 862. Here, Respondent did not offer the Knox notes to prove the truth of the matter asserted in them. They were merely offered to show what caused Smith to con- clude that Benson, Gobea, Cage, Williams, and Lopez IO0 See alo Ohio Pre (omrpan. 21 N RI Sh,2 (q174 1 had engaged in strike misconduct. As they were purport- edly prepared during the strike, after interview with cus- tomers, and the General Counsel has offered no evidence to suggest that the discharges of the five employees in question were pretextual or based on anything other than what is stated in the documents, I find there is sufficient evidence in the record to establish Smith's honest belief that the five employees in question engaged in strike mis- conduct. The content of General Counsel's Exhibit 77 and the testimony of the alleged discriminatees is described. supra, Gobea specifically denied the misconduct attribut- ed to him. Similarly, Benson denied that he had said any- thing "nasty" to a customer during the strike and he spe- cifically denied telling any customer that there were roaches in the cafeteria food or in the kitchen. He like- wise denied that he had blocked the entrance of any cus- tomers at Respondent's cafeterias.10 3 While Cage, Wil- liams, and Lopez were not asked during the hearing whether they engaged in the alleged strike misconduct attributed to them, Benson denied that he heard Cage or Williams tell a customer that there was roaches in the food or in Respondent's QCK. In sum, I find that the denials by Gobea and Benson of participation in strike misconduct placed Respondent in a position where it was required to prove that they en- gaged in strike misconduct. As it failed to offer such proof, I find, as alleged, that these employees were dis- charged in violation of Section 8(a)(1) and (3) of the Act. On the other hand, I find that the burden of proof shift- ed to the General Counsel when Respondent established that Smith had an honest belief that Cage, Williams, and Lopez engaged in strike misconduct. General Counsel's failure to cause those employees to deny that they en- gaged in the conduct attributed to them compels me to recommend that the allegation that they were discharged in violation of Section 8(a)(1) and (3) of the Act be dis- missed. b. The refusal to reinstate Mary Jane Montoya As revealed, supra Montoya was the Union's observer at the December 18, 1974, election, and she served as a member of the Union's negotiating team. She testified, without contradiction, that on September 8, 1975, she asked her departmental manager, Lamm if she could be placed on leave of absence due to her hospitalization and her physical condition. Rather than grant the request outright, Lamm treated her request ambiguously and in- formed her he did not know whether the request would be granted "considering the way things were at this time." I infer that Lamm was referring to the deadlock in negotiations and the impending strike by the Union when he made the remark in question. Significantly, Montoya joined the strike at its outset and she testified, without contradiction, that Vinson, Phillips, Whipple, Lamm, and Rhodes observed her pick- 10: A Resporndeltl', note,. (i C E !h 77. alttrihute conductl o Ben'l,on. Cage. and Williams jointl. one cannot astertain hat prciCe conduct Benson allegedly engaged in dulring the strike Io nl i'.. he deniedl ian .s rongdoing during his Iestintln FRS CAFETERIAS. INC qt3 914 D)ECISIONS OF NATIONAL. LABOR RELATIONS BOARD eting during the strike. Moreover, the record reveals that she attended the October 10, 1975, bargaining session. As of late October 1975, Montoya had not been in- formed whether her request for a leave of absence had been granted. Finally, by letter dated October 27, 1975, Lamm informed this employee that she had been granted a 30-day leave of absence commencing September 2, 1975. She was advised in the letter to indicate within 5 days from the date of the letter whether she was partici- pating in the concerted action or whether she had aban- doned her employment. The letter further indicated she would be treated as a voluntary quit if she failed to re- spond in 5 days. Montoya credibly testified that she received the Lamm letter on October 31 and responded by letter dated No- vember 3 in which she indicated she was not prepared to return to work as long as there was a labor dispute. She was refused reinstatement at the conclusion of the strike for the alleged reason that her response to Lamm's letter was untimely. I am convinced, and find, that the reason assigned by Respondent for its refusal to reinstate Mon- toya at the conclusion of the strike is pretextual. Lamm's response to this employee's legitimate request for a leave of absence certainly makes it appear that her union advo- cacy and the prevailing situation on September 8, 1975, were factors which he intended to consider in deciding whether she would be granted the requested leave of ab- sence. This aside, Montoya's participation in the October 10 negotiating session and her observed presence on the picket line made Lamm's October 27 inquiry concerning her participation in the then ongoing concerted action absolutely unnecessary. No fewer than five of Respond- ent's officials were fully aware at that time that Montoya was participating in the strike; Lamm was one of the five. In sum, I find that Respondent terminated the employ- ment of Montoya on or about September 1, 1975, with full knowledge of the fact that she was at that time par- ticipating in the strike then in progress. By engaging in such activity, it violated Section 8(a)(l) and (3) of the Act, as alleged. c. The alleged with.holding of vacation rights and benefits to punish strikers While the complaint alleges that Respondent deprived employees of vacation rights and benefits earned prior to the strike to punish them for engaging in a strike, the General Counsel failed to adduce any testimony which would prove the violation alleged. Instead, his witnesses uniformly testified that the time they spent on strike was not credited as service time for the computation of vaca- tion entitlement. As Respondent has not been shown to have deprived striking employees of earned vacation rights or other benefits, I recommend that paragraph 12 of the complaint be dismissed. 1 0 4 104 By refusing to immediatel) reinstate the unfair labor practice strik- ers after the February 11. 1976., unconditional offer of reinstatement, Re- spondent unlawfully affected their vacation rights from the date of the February 13 refusal to reinstate them to the date of their rehire and/or to the date they are offered reinstatement. This violation is remedied by the "make whole" portion of the recommended Order, infra. IV. I'Ht lFECT' Ol I HI UNIAIR I.ABOR PRACICES UPON COMMEIRCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section , above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As it has been found that Respondent failed and re- fused to reinstate Albert Gobea, Roosevelt Benson, Mary Jane Montoya, and the unfair labor practice strikers named in Appendix A attached hereto, it will be recom- mended that Respondent offer the named individuals im- mediate reinstatement to their former positions or, if such jobs no longer exist, to substantially equivalent positions, without loss of seniority and other rights and privileges previously enjoyed, discharging if necessary, any re- placements hired. It is further recommended that Re- spondent make the aforesaid individuals whole for any loss of earnings or other benefits they have suffered as a result of the discrimination against them from February 13, 1976,105 the date when Respondent unlawfully re- fused to reinstate them, to the date of Respondent's offer of reinstatement, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).106 It will also be recommended, in view of the nature of the unfair labor practices in which Respondent engaged, that Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act.' 0 7 CONCLUSIONS OF LAW 1. Furr's Cafeterias, Inc., is an employer within the meaning of Section 2(2) of the Act, and it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butchers Workmen of North America, Local P-777, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. i'O As I have found that Mary Jane Montoya was unlawfully terminat- ed by Respondent while she was participating in a protected strike. I shall, in accordance with the Board's Decision in A4bdlties and Goodwill. Inc., 241 NLRB 27 (1979), recommend that she is entitled to backpay from the date of the discharge. November 1. 1975, to the date she is of- fered reinstatement. 111 See, generally, I/is Plunhing & leating Co, 138 NLRB 716 (1962). "' See N'.L. RB. v Entr,sleh ,jg Co.,. 120 F 2d 532, 536 (4th Cir 1941). FURR''S CAFETFRIAS,. INC 3. All production and maintenance employees such as but not limited to fabrication employees, kitchen employ- ees, cooler employees, bakery employees, shipping anld loading employees, maintenance employees, and local truckdrivers employed by Respondent at its 3301 33rd Street, Lubbock, Texas, operations, excluding the plant manager, assistant plant manager, foremen, office clerical employees, guards, watchmen, engineers, micro-biolo- gists, lab-technicians, draftsmen, dieticians, department managers, and supervisors as defined in the Act. consti- tute a unit appropriate for the purposes of bargaining within the meaning of Section 9(b) of the Act. 4. Since December 18, 1974, the Union has been, and is now, the representative of a majority of Respondent's employees in the appropriate unit described above for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By (a) failing and refusing on February 13, 1975, to notify and bargain with the Union concerning a layoff of employees and thereafter unilaterally altering the senior- ity rights of such employees: (b) granting employees merit increases without notification to and consultation with the Union; (c) failing to bargain with the Union in good faith; (d) proposing a contract term limited to the end of the certification year: and (e) withdrawing recog- nition from the Union and refusing to bargain further with it on June I, 1976. Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By (a) failing and refusing to offer immediate rein- statement to the employees named in Appendix A at the conclusion of an unfair labor practice strike upon their unconditional offer to return to work made on February 11, 1976; and (b) terminating the employment of employ- ees Albert Gobea Roosevelt Benson, and Mary Jane Montoya because they engaged in union and/or protect- ed concerted activity, Respondent engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 7. By informing strikers rehired in new departments that they would go first in event of a layoff, Respondent violated Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 9. Except as specifically found herein, Respondent has not violated the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 10 The Respondent, Furr's Cafeterias, Inc., Lubbock. Texas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: "' In1 the ccrll no e*xerto.Cp, are Filed a, prol.ided hb Sec 102 4 of the Rule, and Regulatlm, ,1 the Naltioal .hbor Relaliton, Hirard, the findings. concluiotn d and rcorrirnelded Order herein hall. a. proxidcd in Sec 10)2 4 of Itlhe Rles1 and Rgllatlonts he adoipied h the tard alld becomc is filndi lg .. lilll cii. i lrd ()rder. illl a 1o1 hiCti 111s Irt- shall be deemed s.ar cd O r all puI po s (a) Refusing to bargain in good faith with the Union as the exclusive representati\e of the employees in the unit described above concerning the rates of pay. wages, hours of employment, and other terms and conditions of employ ment. (b) Discouraging membership in the aboxe-named Union or in any other labor organization by refusing to reinstate or otherwise discriminating against employees for engaging in a protected strike or other lawful union or concerted activities for the purpose of mutual aid or protection. (c) Unilaterally, without notice to and consultation with the Union, selecting employees for layoff and/or al- tering their seniority rights on recall. (d) unilaterally, ithout notice to and consultation with the Union, giving merit increases to its employees. (e) Informing strikers hired in new departments that they will go first in event of a layoff. (f) In any other manner interfering with, rstraining, or coercing employees in the exercise of rights guaran- teed them by Section 7 of the Act 2. Take the following affirmative action hich is nec- essary to effectuate the policies of the Act: (a) Upon request, bargain in good faith with the Union in the unit described above, and, if an understanding is reached, embody such understanding in a written signed contract. (b) Offer Albert Gobea, Roosevelt Benson, Mary Jane Montoya, and the employees named in Appendix A im- mediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, dis- charging, if necessary. any replacements hired and make them hole for any loss of earnings or other benefits suf- fered as a result of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all pay- roll records, social security payment records, timecards, personnel records and reports and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Quality Control Kitchens in Lubbock. Texas, copies of the attached notice marked "Appendix B." ' " Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. I I t eest .rl lihalt this rdecr is eIlttrced b Judgrlm tll olf at l med Sltates Court of ppcllo [ , fie s.rds III t lh lollcc rladlinig "T'-led h ()rder lf tlil N.alniil I ablh r Rcl.lilolis Ioa.Ird" Shill read '"ll-ti d ILursi antl ito JudgmnCllt 1 Ithi l r teld St.Ile CIourit l tll AI\ppc.Ial Inf;or ig 11 (Order o trht N.ililial I.llbor Rl l.ri ' Bioard 915 91(6 I)tCISI()NS ()F NATI()NA. I.AO()R RELATIONS BO()ARD (e) Notify the Regional Director for Region 16 in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX Delfino Cruz Guadulupe De La Cruz Virginia Cruz Betty Joe Dixon Paula Garcia Margaret Gonzalez Santos Gonzalez Eric Hill Willie Hardaway Roy Rosas Alex Ramirez Gloria Ramirez Alberta Rogers Jimmy Rivera Larry L. Raven Helen Santos Billy Stiggers Sarita Rosa Torres Jackie Alvarado Hortencia Arehalo Frank Arebalo, Jr. Rosita Alvarado Felice Barrera Donald Brunke Ofelia C. Cardenas Mary T. Cervantes James P. Johnson Antonio S. Mojica Richard Montoya Paul Moody Feliberto Ovalle Joe Pena, Jr. Juanita M. Paez Daniel T. Perry Kenneth E. Williams