Atlas Metal Parts Co.

ATLAS METAL PARTS CO. Atlas Metal Parts Co., Inc. and Local 806, Interna- tional Union, Allied Industrial Workers of America, AFL-CIO. Cases 30-CA-4646 and 30-CA-4822 September 17, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 13, 1979, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, Respondent, the General Counsel, and the Charging Party' filed ex- ceptions and supporting briefs. Respondent also filed an answering brief. 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- thority 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 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 The Administrative Law Judge found that the General Counsel had failed to establish that Re- spondent violated Section 8(a)(3) of the Act by re- fusing to reinstate unfair labor practice strikers sub- sequent to their unconditional offer to return to work. He therefore recommended that that portion of the complaint be dismissed. We disagree. As fully set forth in the Administrative Law Judge's Decision, the parties began negotiation for a new collective-bargaining agreement on February t We find no merit to the Charging Party's request for backpay for striking employees during the strike. We also find no merit to the Charg- ing Party's request for litigation expenses, see Heck's Inc., 215 NLRB 765 (1974). 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 law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products; Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We have also considered Respondent's contention that the Administra- tive Law Judge displayed bias and prejudice against Respondent in this proceeding and that he should have disqualified himself. We have care- fully considered the record and the attached Decision and reject these charges of bias alleged by Respondent as unsupported. In fn. II of the Administrative Law Judge's Decision, the Administra- tive Law Judge incorrectly stated that certain testimony referred to the March 15 bargaining session rather than the February 15 bargaining ses- sion. We hereby correct this inadvertent error. s The Administrative Law Judge inadvertently did not include his finding of Respondent's changing or eliminating employees' wages, hours, and other terms and conditions of employment in his recommended Order. We hereby include it. We also modify his notice to conform with his recommended Order. 252 NLRB No. 29 1, 1978.4 Although the parties met on a number of occasions, the Administrative Law Judge found, and we agree, that Respondent did not bargain with an intention of reaching an agreement and thus engaged in surface bargaining in violation of Section 8(a)(5) of the Act. It is within the context of this bad-faith bargaining that, on April 1, the union membership voted to strike in protest of Re- spondent's unfair labor practices and in support of the Union's contract demands. The strike began on April 6 and continued until the Union notified Re- spondent that the strike was to be terminated on July 14. In addition, the Union notified Respondent that all of the striking employees unconditionally requested reinstatement on July 17 to their former jobs. In agreement with the Administrative Law Judge, we find that the strike was caused and pro- longed by Respondent's unlawful conduct and that it was an unfair labor practice strike. An employer's responsibility to reinstate an eco- nomic striker is limited to the employer's legitimate and substantial staffing requirements. 5 On the other hand, it is well established that, upon an uncondi- tional offer to return to work, unfair labor practice strikers are entitled to immediate reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions. 6 Further, the burden is upon the employer to offer immediate and unconditional reinstatement, even if striker re- placements must be terminated to make room for the returning strikers. 7 In the instant case, at the time the striking em- ployees unconditionally requested reinstatement, Respondent was of the view that the strike had been an economic strike and that the returning strikers were economic strikers.8 Accordingly, Re- spondent informed the Union that it would recall the returning strikers to whatever jobs were availa- ble. Respondent did not terminate any of the em- ployees that had been hired to replace the strikers in order to make room for the returning strikers. Respondent merely offered to recall the strikers when work became available. Respondent, howev- er, had an obligation to offer immediate and full re- instatement to its returning unfair labor practice strikers and its failure to terminate strike replace- ments in order to make room for those strikers vio- * Unless otherwise indicated, all dates hereafter refer to 1978. s The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert, denied 397 U.S. 920 (1970). See also N.LR.B. v. Fleetwood Trailer Co.. Inc., 389 U.S. 375, 378 (1967). 6 N.LR.B. v. McKay Radio & Telegraph Co., 304 U.S. 333 (1938). 7 Laredo Coca Cola Bottling Company, 241 NLRB 167 (1979). * At the time of the strike, at the hearing, in its brief to the Adminis- trative Law Judge, and in its exceptions to the Administrative Law Judge's Decision, Respondent has argued that the strike was an economic one and that it was under no obligation to offer immediate reinstatement to its employees who had unconditionally offered to return to work. 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated Section 8(a)(3) of the Act.9 In these circum- stances, we find in agreement with the General Counsel that the questions of which employees were discriminatorily denied reinstatement by Re- spondent is a matter that can best be determined at the compliance stage of this proceeding. Accord- ingly, we find that the General Counsel has estab- lished that Respondent violated Section 8(a)(3) and (1) of the Act, by discriminatorily denying immedi- ate reinstatement to unfair labor practice strikers who had unconditionally offered to return to work. AMENDED REMEDY In addition to the remedies recommended by the Administrative Law Judge, having found that Re- spondent committed additional violations of Sec- tion 8(a)(3) and (1) of the Act, we shall order it to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Since we have found that Respondent failed to reinstate the unfair labor practice strikers upon an unconditional offer by the strikers to return to work, we will order that they be offered immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions without prejudice to their seniority or their rights and privileges previously enjoyed, and that Respondent make them whole for any loss of earnings that they may have suffered by reason of the unlawful failure to reinstate them by pay- ment to them of a sum of money equal to that which they normally would have earned as wages, from the date of the unlawful failure to reinstate them to the date of their actual reinstatement, less net earnings to which shall be added interest com- puted thereon in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977); ° see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Sec- tion 10(c) of the Act, we issue the following: AMENDED CONCLUSIONS OF LAW Add the following as Conclusions of Law 11: "11. By refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work, Respondent has engaged in, and is engaging 9 Coca Cola Bottling Company of Miami Inc., 237 NLRB 936 (1977). See also N.L.R.B. v. Top Manufacturing Co., Inc., 594 F.2d 223 (9th Cir. 1979). t0 Member Jenkins would compute interest in the manner set forth in his partial dissent in Olympic Medical Corporation, 250 NLRB No. II (1980). in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." 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, Atlas Metal Parts Co., Inc., Waukesha, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph (c) and re- letter the subsequent paragraphs accordingly: "(c) Refusing to reinstate unfair labor practices strikers upon their unconditional offer to return to work." 2. Insert the following as paragraph (e) and re- letter the subsequent paragraphs accordingly: "(e) Changing or eliminating employees' wages, hours, or other terms and conditions of employ- ment established by collective bargaining with the Union without bargaining in good faith with the Union." 3. Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs accordingly: "(d) Offer all unfair labor practice strikers imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the refusal to reinstate them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their unconditional offer to return to work to the date of their reinstatement in the manner set forth in the section of this Decision and Order entitled 'Amended Remedy."' 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. 206 ATLAS METAL PARTS CO. WE WILL NOT refuse to bargain collectively in good faith concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with Local 806, International Union, Allied Industrial Workers of America, AFL- CIO, as the exclusive bargaining representative of the employees in this appropriate unit: All of our employees excluding executives, supervisors, foremen, professional employ- ees, office clerical employees, draftsmen, all other employees who have the right to hire, and fire and discharge and certain tempo- rary employees not to exceed five (5) in number, which are defined as summer stu- dent help for a period not to exceed ninety (90) days. WE WILL NOT discourage membership in Local 806, International Union, Allied Indus- trial Workers of America, AFL-CIO, or any other labor organization, by delaying reinstate- ment of employees, reducing wages of employ- ees, denying job opportunities to employees, or otherwise discriminating against our em- ployees for engaging in a protected strike or other lawful union or concerted activities for the purpose of mutual aid and protecton. WE WILL NOT refuse to reinstate any unfair labor practice striker who unconditionally offers to return to work. WE WILL NOT threaten employees with the assignment of more onerous working condi- tions if they file grievances. WE WILL NOT instruct our employees not to talk about the Union in the absence of a valid no-solicitation rule. WE WILL NOT change or eliminate our em- ployees' wages, hours, or other terms and con- ditions of employment established by collec- tive bargaining with the Union without bar- gaining in good faith with the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, upon request, bargain collectively in good faith with the Union as the exclusive representative of the employees in the above bargaining unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and embody any understand- ing reached in a signed agreement. WE WILL, upon the Union's request, rescind any or all changes in terms and conditions of employment made by us after February 15, 1978, pursuant our unilateral implementation of certain of our bargaining proposals, includ- ing specifically our proposed elimination of our employees'pension plan, making payments as necessary to restore the plan. We shall con- tinue such conditions in effect and continue to make such payments as required to the pension fund until we have negotiated in good faith with the Union to a new agreement or an im- passe on the pension fund and other matters affecting our employees' terms and conditions of employment. WE WILL make whole any of our employees in the above-described unit for any losses they may have suffered as a result of our unlawful unilateral actions, including specifically our unlawful elimination of their pension plan. However, our employees shall not be required to repay us for the moneys they received in lieu of payments to their pension plan which we unlawfully abolished. WE WILL offer unfair labor practice strikers 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 pay they may have suffered by reason of the refusal to reinstate them by payment to them of a sum equal to the amount they normally would have earned as wages from the date of their uncon- ditional offer to return to work to the date of their reinstatement, plus interest. WE WILL furnish the above-named labor or- ganization the information it requested con- cerning the use of subcontractors. WE WILL make whole, with interest, Donald Behling for any losses he may have incurred by reason of our unlawful delay in reinstating him, the reduction of his wage rate, and the refusal to consider him for a truckdriving job, and WE WILL, only on the basis of lawful con- siderations, give Donald Behling consideration for the job of truckdriver and give him a rea- sonable amount of time to consider any offer made in that regard. WE WILL reimburse employee-members of the union negotiating committee for wages they lost, if any, while attending negotiating sessions on and after February 15, 1978, with interest. ATLAS METAL PARTS CO., INC. 207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge: A hear- ing in this consolidated proceeding was held on May 7, 8, 9, and 10, 1979, at Milwaukee, Wisconsin, based on charges filed against Atlas Metal Parts Co., Inc., herein called Respondent or the Company, by Local 806, Inter- national Union, Allied Industrial Workers of America, AFL-CIO, herein called the Union or the Charging Party. Based on these charges the Regional Director issued complaints and first amended consolidated com- plaint and notice of hearing alleging various violations of Section 8(a)(1), (3), and (5) of the Act by Respondent. Amendments to the first amended consolidated com- plaint were made at the hearing. Respondent duly filed answers to the complaints and amendments thereto deny- ing the commission of any unfair labor practices. The General Counsel, the Charging Party, and Re- spondent have filed briefs which have been carefully considered. Upon the entire record' and my observations of the witnesses and upon the inherent probabilities and im- probabilities of the testimony of the witnesses, and having taken into account the arguments made at the hearing and in the briefs submitted, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a Wisconsin corporation engaged in the manufacturing and processing of metal parts in Wauke- sha, Wisconsin, where during the year preceding the is- suance of the complaint herein it purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Wisconsin and sold and shipped goods valued in excess of $50,000 di- rectly to customers located outside Wisconsin. The com- plaint alleges, Respondent admits, and I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent is basically a job-shop manufacturing op- eration which employs approximately 35 employees on two shifts. It has recognized the Union since about 1956 as the collective-bargaining representative of its produc- tion and maintenance employees. The parties have en- tered successive collective-bargaining agreements, the most recent of which (and which I shall refer to as the 1977 contract) was effective from March 1, 1977, to March 1, 1978. All contracts since 1957 have provided a union-shop agreement requiring employees to join the Union (and/or maintain their membership therein) after I Counsel for the General Counsel has moved without opposition that the transcript be corrected in certain respects. 45 days of employment. Since 1967 all agreements have contained a provision for checkoff of union dues. At the hearing it was stipulated that as of February 3, 1978,2 33 of the 35 employees in the production and maintenance unit were members of the Charging Party and have ex- ecuted authorizations for checkoff of their union dues from their weekly paychecks. The parties met 19 times between the date of Februray 1, 1978, and February 13, 1979, to negotiate renewal of the 1977 contract. The central issue of this case is wheth- er during the course of these meetings Respondent nego- tiated without intent to reach a collective-bargaining agreement. Other issues in this case are whether Re- spondent engaged in various acts in violation of Section 8(a)(1) before, during, and after the period of negotia- tions; whether a strike which occurred during the midst of the negotiations was caused or prolonged by any unfair labor practices of Respondent; whether Respond- ent discriminated against certain employees in violation of Section 8(a)(3) of the Act before or after the strike; and whether Respondent committed various other viola- tions of Section 8(a)(5) of the Act by such alleged ac- tions as individual bargaining, unilateral actions, and re- fusal to furnish information relevant and necessary to the Union's function as collective-bargaining representative of the employees in the unit.3 A. Alleged Independent Violations of Section 8(a)(1) and Discrimination Against Employee Rigdon The complaint alleges that during February and March Supervisors Frank Barr and Robert Palatear threatened an employee, namely, Darrell Rigdon, with more onerous working conditions if he filed grievances and impliedly promised him better working conditions if he refrained from doing so. The punch press operators, such as Rigdon, were paid on an incentive basis. Jobs were rated as to how many pieces could be made in an hour. If incentive employees made above the rate, they would receive a commensu- rate percentage above a contractually stated base rate. Obviously, if a job was rated too high it would be more difficult, or impossible, to make the incentive premium. If an employee felt the rating on a job was too high, he would, by himself or through his committeeman, verbal- ly complain or grieve to Foreman Barr or Assistant Foreman Palatear. Rigdon testified that in early February he was work- ing on a job when Frank Barr approached him and com- mented that the particular job was well rated. Rigdon re- plied that it was not and he intended to file a grievance which he thereafter did. The grievance was successful 2 All dates hereinafter are within 1978, unless otherwise stated. 3 As alleged in the complaint and admitted by Respondent, the parties' contracts have included the following unit description which unit is ap- propriate for the purposes of collective-bargaining under Sec. 9 of the Act: All employees of Respondent] excluding executives, supervisors, foremen, professional employees, office clerical employees, drafts- men, all other employees who have the right to hire and discharge and certain temporary employees not to exceed five (5) in number which are defined as summer student help for a period not to exceed ninety (90) days. 208 ATLAS METAL PARTS CO. and the job rerated but, according to Rigdon, Barr ap- proached him shortly thereafter and, "told me that I should stop filing a grievance on jobs. And if I did that, I would make more money and things would run a lot smoother. And if I did not, he would give me, as we refer to, as dirty jobs, which means bad rated jobs." Rigdon further testified that in early March, after he had been successful in another grievance, Barr repeated the previously quoted statement. After this second grievance and second comment by Barr, according to Rigdon, as- sistant foreman Palatear approached him and told him "basically the same thing as Frank told me in the morn- ing, that I should keep a low profile and come down and stop writing grievances on the jobs, and I would defi- nitely make more money." When asked about this last remark on cross-examina- tion, Palatear credibly denied the "low profile" remark, but he, as well as Barr, admitted telling Rigdon that if he would spend less time filing grievances he would make more money. Barr denied being able to recall telling Rigdon that he would receive "dirt" jobs if he continued filing grievances about rates, but his testimony fell short of a credible denial of Rigdon's testimony that Barr twice threatened him with "dirt" or heavy jobs if he continued filing grievances over rates. Both Barr and Pa- latear acknowledged that Rigdon filed more grievances over rates than most other employees. Since Rigdon was an incentive employee, the admitted statements that it would be more profitable for him to spend time working, even as opposed to filing griev- ances, appears to be self-evident, and nonviolative. How- ever, the remark by Barr that he would assign "dirt" jobs to Rigdon if he continued to file grievances is a direct threat of retaliation for engaging in protected ac- tivities and I find and conclude that it was a violation of Section 8(a)(1) for Barr to have done so. As violation of Section 8(a)(3) of the Act, the General Counsel alleges that after Barr's second remark regarding "dirt" jobs, "Respondent discriminatorily assigned its employee Darrell Rigdon to more onerous tasks for having filed a grievance." In this regard Rigdon testified that shortly after Barr's second threat of "dirty" jobs, he was assigned a quarter-inch steel job which lasted for 4 days. Rigdon testified that employees were usually left on such jobs for no more than 2-1/2 or 3 days. Rigdon first testified that he did not complain to the foreman about being kept on the job the fourth day, but then he testified that he complained to his foreman (not specify- ing Barr or Palatear) and was told to file a grievance. Rigdon first testified that no grievance was filed over the matter, but he then testified that a grievance over harass- ment was filed in regard to the assignment. No such grievance was placed in evidence if it was filed. Barr and Palatear testified that jobs were assigned in rotation and there is no evidence that the initial assign- ment of the job in question was made on any other basis. That is, there is no evidence that the job was taken out of rotation in order to give it to Rigdon and Rigdon did not claim to have been working on another job when he received the assignment. There was no reliable evidence that employees were taken off of such jobs without re- quest after the third day and Rigdon's testimony of his complaint and grievances, or lack thereof, is too self-con- tradictory to conclude that he was left on the job despite complaints. In summary, I find there is insufficient evi- dence to support a conclusion that because of discrimina- tory motivation Rigdon was either assigned or left upon a more onerous task because he had filed a grievance. Accordingly, I shall recommend that this allegation of the complaint be dismissed. The complaint alleges that in the week before the strike which began on April 6, 1978, Respondent's presi- dent, Fenlon, encouraged an employee, namely, Edwin Kressin, to take a vacation "so that the employee would not be present at the start of the anticipated strike and available to go on strike." Kressin had been a spot welder for Respondent since 1939 and was the senior employee in the plant. In such position he had first choice as to when he would take his vacation. Kressin testified that some time during the week before the April 6 strike, Fenlon spoke to him at his work station and "told me if I could take my vacation, because the em- ployees are going out on strike, and that way I wouldn't have to worry about walking. And when it was over, I could come back to work." Kressin testified that he told Fenlon that he would not take his vacation at that time because he wanted to be present to assist the striking em- ployees and engage in the picketing himself because "them are my buddies, and I organized this Union in 1954. And, I said, we'll go in and either make it or break it." Fenlon testified that before the exchange between Kressin and him, Respondent had posted a notice show- ing how much vacation time each employee had ac- crued. Fenlon testified that the strike vote had been taken and "I explained to Mr. Kressin that the vacation schedule if he was going to take vacation, would have to be scheduled to a strike because if the Union did go on strike all benefits would stop, including vacations, pay- ment to the pension fund, and insurance benefits." Kres- sin denied that Fenlon suggested that the vacation be taken before the strike because Respondent would not be paying vacation benefits during the strike. I credit Fenlon's account of this exchange. There is no evidence that Kressin was particularly active in the Union at that point and, although he had been one of the original organizers, there is no reason to believe that some 25 years later Fenlon would select him as an em- ployee worthy of inducement to refrain from strike ac- tivities. Accordingly, I shall recommend that this allega- tion of the complaint be dismissed. The complaint alleges that in the week before the April 6 strike, Barr told an employee that he was stupid if he went on strike. For this allegation the General Counsel relies on the testimony of David Donald Roessler, who testified Barr made such a statement. Barr testified that he recalled making such statement to Rigdon, but not Roessler. He testified that he told sever- al employees that they would be stupid to be striking rather than working and getting paid. The General Counsel advances no cogent argument for concluding that Barr's undenied remark would inter- fere with, restrain, or coerce Roessler or any other em- 209 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee in their Section 7 rights, and none can be envi- sioned by me. Accordingly, I shall recommend that this paragraph of the complaint be dismissed. The complaint alleges that in April, after the strike began, Fenlon created the impression that the employees' union activities were being kept under surveillance. The General Counsel does not indicate upon what testimony he relies for such an allegation, but presumably it is that of employee Ronald Edward Kennedy who testified that on a Saturday during the strike Fenlon was driving his automobile out of the plant through a gate which Kenne- dy was picketing. Kennedy testified that Fenlon "rolled down the window and said . . . he asked what I was doing there because he felt there was a union meeting, he said. And I said there wasn't any to my aware. And if there was, I didn't know anything about it. And then he said well, I could go home unless I wanted to watch an empty plant." Fenlon admitted the remarks as testified to by Kennedy; however, I can find no element of interfer- ence with or restraint or coercion of Respondent's em- ployees' Section 7 rights in this remark. Accordingly, I shall recommend that this allegation of the complaint be dismissed. The complaint alleges that in early April, Fenlon "so- licited a striking employee to return to work with a promise of police protection while crossing the picket line." To this allegation employee Kennedy testified that a week after the strike started he and his son went to the office to pick up a paycheck he had coming. Kennedy asked Fenlon how long the strike would last and Fenlon replied that it was up to the employees and "he said I could come back to work any time I wanted and I didn't have to feel any threats, that he had police protection for us." This comment is undenied by Fenlon but under the circumstances, I again can find no element of interfer- ence with or restraint or coercion of employees in their exercise of Section 7 rights in this one remark and, ac- cordingly, I shall recommend that this allegation of the complaint be dismissed. The complaint alleges that on or about August 10, Jacob Teufel, Respondent's production manager, "threat- ened an employee with discharge if the employee did not accept a transfer to another job." The General Counsel does not mention the matter in his brief, but presumably he relies on employee Donald Behling's testimony that, after the strike, as employees were being reinstated to various jobs, Teufel told him that he would be required to accept a job as a punch press operator or be dis- charged. Behling had theretofore been a tool and die- maker, as discussed infra. Teufel admitted making the statements in question to Behling, however, he also added that, upon legal advice, he almost immediately repudiated the remark and by tell- ing Behling that he did not have to accept the transfer. Behling acknowledged this repudiation in his testimony, and I find that there is no violation of the Act in Teufel's repudiated remark. Accordingly, I shall recommend this paragraph of the complaint be dismissed. The complaint alleges that during August 1978 Barr "prohibited employees from talking about union mat- ters." Behling testified, and Barr essentially admitted, that as he was engaging in a discussion with other em- ployees just before quitting time, Barr, from about 30 feet away, yelled at him to stop talking about union busi- ness on company time. There had never before been a rule against talking about union or any other matters during employees' working time and I find that Barr's (yelled) instruction to Behling violated Section 8(a)(1) of the Act as it was a discriminatory prohibition to Behling (and all other employees who heard, or heard of, the in- struction) against engaging in discussions about the Union but no other topic. B. Alleged Bad-Faith Negotiations 1. The negotiations The bargaining sessions in issue were conducted for the purpose of negotiating a contract to succeed the 1977 contract. Both parties made written and oral proposals which were keyed to that contract. 4 Minutes of each of the 19 bargaining sessions were kept by Respondent's negotiator, James C. Mallien. 5 The Union's chief negotiator, Regional Representative Mark Bloomier,6 was the General Counsel's chief witness about the substance of the bargaining sessions, and Mal- lien was Respondent's. The minutes of the sessions (which were composed by Mallien immediately after each session) were introduced into evidence by the Gen- eral Counsel. Bloomier was asked whether the minutes of each session contained "any inaccuracies, incomplete- ness or misstatements of the Union's position taken at [each] meeting." Bloomier usually answered in the nega- tive to this repeated inquiry. Where he took exception to statements or testified about additional remarks which are significant, 7 I have noted his testimony. Respondent basically relied on the minutes as its evidence of what happened at the meetings, Mallien making only a few ad- ditions (which are noted) and no deletions to the minutes in his testimony. Therefore, the recitations of fact about the sessions are the recitations of the minutes unless oth- erwise indicated. Meeting 1, February 1, 1978 At the first session, the Union presented a list of items as proposals for changes in the 1977 contract which Re- spondent aptly described as a "laundry list." The Union made the following proposals: Allowing checkoff on al- ternate paydays so that an increase in Union dues could be taken out of larger checks; an additional holiday; pro- visions covering when holidays fall on Saturdays and Sundays; provisions regarding applications of seniority to layoff; calculation of pay for vacations for employees who transfer from piecework to hourly basis; add over- ' It is to be noted that, although the parties had had a contractual rela- tionship for over 20 years, only the original and the 1977 contracts were placed in evidence. Accordingly, I have relied on stipulations of the par- ties and undisputed testimony for the history of certain clauses. 5 Mallien was usually assisted by Respondent's president, Lester G Fenlon, or Production Manager Jacob (Jake) Teufel, and/or Supervisor Richard Geux. K Bloomier was usually assisted by employee bargaining committee members Behling, Kohn, and/or Deitzler. 7 Bloomier also did a small amount of quibbling with certain recita- tions in the minutes which is unnecessary to discuss herein. 210 ATLAS METAL PARTS CO. time to computing vacation pay; add specified relatives for coverage of the funeral leave clause; 20-percent in- crease in wage rates; cost-of-living clause granting a 1- cent raise for each 3/10-percent increase in the 1967 Consumer Price Index every 3 months; proposals for pe- riodic wage reviews; proposals to bring a timestudy expert into the plant if the grievance procedure does not settle rates for new jobs; increase second-shift premium from 20 cents to 25 cents; increase employer contribution for insurance from 85 percent to 100 percent; replace Travelers Insurance Company, the existing company car- rier, with Allied Industrial Workers' Health and Welfare plan; substantial increase in coverage of the health plan; increase in pension contributions to the Allied Industrial Workers' plan from 17 cents to 22 cents per hour for all hours worked; count contract negotiation and grievance procedure time spent by bargaining committee members in calculating vacation and pension; increase life insur- ance from $4,000 to $6,000; increase weekly accident and sickness benefit from 84 to $110; add two classifications to the contract and delete one; and certain down time be paid at 150 percent of base rate. Mallien asked Bloomier what he thought of the idea of direct payments to employees instead of contributions to the AIW pension plan provided by all prior contracts be- tween the parties. Mallien noted that employees could invest such moneys in an individual retirement account s if they wished. Bloomier expressed doubts about how such a plan could work; Mallien asked Bloomier to at least find out what the members thought about it. Meeting 2, February 15, 1978 There was little discussion at the second meeting. The Company presented its initial proposal which was keyed to the 1977 contract. Article by article the following proposals were made by Respondent: The 1977 contract excluded from the bargaining unit described in Article 1, "Recognition, Purpose and Union Security," five summer students who worked for less than a 90-day period. Respondent proposed deletions in the clause so that five "students, whether they worked only in summers or whether they worked more than 90 days, would be excluded from the unit." The "purpose" section had recited that a harmonious relationship is an objective of the contract and that the parties would strive for a "continuously more successful operations." Respondent proposed to eliminate this clause and "pur- pose" is stated to be only the setting forth of the terms and conditions of employment. Respondent proposed to delete the union-shop9 provision which had appeared in all prior contracts dating back to 1957. In the place thereof Respondent proposed to insert: Section 1.03. The Union and the Company agree that whether an employee belongs to the Union or doesn't belong to the Union is a matter of personal 'Such individual programs are available under 1974 amendments to the Internal Revenue Code, 26 U.S.C. § 408, where no employer pro- gram is available. I This clause stated that employees would be required to join the Union after 45 days or employment and/or maintain their membership in the Union, as noted above. choice for each individual employee. Employees do not have to belong to the Union or pay a fee to the Union in order to work at the Company. This "affirmative-no-union-shop" language pro- posal, °0 as I shall refer to it herein, plays a signifi- cant part in the negotiations. Respondent further proposed to eliminate checkoff which had been in all previous contracts since 1967. The following changes in the prior article 11, "Hours of Work and Overtime," were proposed by Respondent: A provision that reduction of the 8-hour workday 40- hour workweek must be by mutual consent was eliminat- ed. Respondent proposed that shift hours could be changed on "business needs," and Respondent proposed to delete the prior provision that 48 hours' notice to em- ployees and committeemen would be given if shift hours were changed; Respondent proposed to substitute there- for a proposal to give "reasonable" notice to employees, making no mention of committeemen. The 1977 contract limited a 4-hour showup pay provision by only specified causes "such as fire emergencies, power breakdowns"; Respondent proposed to limit the showup pay to all "contingencies beyond the control of the company." The 1977 contract covered all injuries on company property, granting employees pay for the remainder of the shift; Respondent's proposal covered only pay for injuries "in the course of employment." Respondent proposed making all overtime compulsory, although it did agree to ask all qualified employees before compelling any one employee to work overtime. For article III, "Holidays," no change was proposed by Respondent. For article IV, "Seniority," the following proposals were made: The definition of "seniority" would be changed from "length of service" to length of time that an employee had worked for the Company, the differ- ence being that striking time would not be considered as time worked. For layoffs, Respondent proposed that full- time employees could bump part-time employees if the full-time employee is "qualified"; the prior contract re- quired only the full-time employee "be available." Re- spondent also proposed to be allowed to deviate from se- niority in selecting two employees during a contract year who would not be affected by a layoff. The 1977 con- tract recited that in cases of recalls, seniority would govern provided that an employee could perform the work; Respondent proposed to add the word "satisfacto- rily" to the performance requirement. The prior contract provided recall rights companywide; Respondent's pro- posal provided for recall "by classification." The 1977 contract provided that seniority would terminate upon layoff for a period one-half the length of an employee's seniority or I-year service, whichever one is greater; Re- spondent proposed that layoffs of 12 months or the length of seniority, whichever is less be deemed to termi- nate seniority. (The net effect, of course, would be that employees with less than one or greater than 2 years se- 10 Respondent essentially duplicated the effect of this proposal in a proposed amendment to the "Non-Discrimination" clause of the 1977 contract. However, this redundant clause was not mentioned again in the bargaining, and I shall make no further reference to it in this Decision. 211 DECISIONS OF NATIONAL LABOR RELATIONS BOARD niority would lose recall rights they would otherwise have had under the 1977 contract.) The 1977 contract provided for superseniority, not limited to layoffs and re- calls, for bargaining committee members who, under all contracts and proposals, had grievance-handling func- tions; Respondent proposed to delete all superseniority for the individuals holding these positions. Article V, "Leave of Absence," of the 1977 contract provided for leaves of absences without limitation upon the basis on which they could be granted; Respondent's proposal recites that leaves of absences would be granted only for specified reasons, to wit: maternity, illness in the immediate family, or physical or mental disabilities. Re- spondent's 1978 proposal would have barred all "gainful employment" during any period of layoff; there was no such limitation in the 1977 contract. Respondent proposed to change article VI, "Vaca- tions," to base vacation pay on total earnings for the prior 12 months divided by 52, as opposed to the method of the 1977 contract which provided vacation pay based on hourly rate or incentive pay for the preceding 12 weeks. (Of course, the net effect of Respondent's propos- als was to penalize employees for nonpaid time during the preceding year, such as strikes.) Article VII of the 1977 contract, "Grievance Proce- dure," provided for grievance procedure and binding ar- bitration. Respondent proposed no changes in the griev- ance procedure but did propose that rather than arbitra- tors being selected from panels submitted by Federal Me- diation Conciliation Service, a permanent arbitrator, from panels submitted by the Wisconsin Employment Relation Commission, be designated. For the arbitration clause Respondent proposed deletion of the expression that arbitration is binding on the parties. It further pro- posed that either party could demand the transcript of arbitration proceedings and, if this demand was made, the cost of the transcription would be equally borne by the parties; in the 1977 contract cost fell on the party re- questing transcription. Respondent further proposed that a 20-day limit be placed on any transcription and a 45- day limit be placed on any arbitrator to issue his deci- sion. The prior contract permitted bargaining committee members to leave their departments to investigate or adjust grievances if they secured permission of their su- pervisors. Respondent proposed that, in addition, bar- gaining committee members must also receive permission of the supervisor of any department they seek to enter to investigate or adjust a grievance. The 1977 contract pro- vided for pay for bargaining committee members while handling grievances; Respondent proposed to delete such pay except where the bargaining committee members were attending meetings scheduled by Respondent during working hours. Respondent further proposed ex- pressly to eliminate pay for any time spent by the bar- gaining committee members in bargaining, whereas there was no provision on this topic in the 1977 contract. Article VII of the 1977 contract had a usual no-strike clause; Respondent proposed to eliminate the employees' right to engage in sympathy and unfair labor practice strikes in the 1978 contract. Respondent proposed no expressed change in article VIII, "Management Rights Clause." Article IX of the 1977 contract, entitled "General," provided for union executive board or bargaining com- mittee members being allowed to have an unspecified amount of time off for "Union business" during regular working hours after receiving approval from Respond- ent; Respondent's 1978 proposal provided for leaves of absences for not more than 30 days for executive board or bargaining committee members for the purpose only of attending "a convention of the Union." Article IX of the 1977 contract further provided that any changes in wages, hours, or working conditions must be by mutual consent; Respondent proposed to delete this section and in its place establish the unqualified right to "institute or pay wages and/or benefits which are in excess of the minimum provided in this agreement." Article IX of the 1977 contract further provided that supervisors could not perform bargaining unit work except in specified condi- tions such as instructing new employees; Respondent's 1978 proposal repeats the exceptions with the preference that "the company will not normally assign supervisors to the performance of work normally performed by members of the bargaining unit except under [the same specified conditions]." (Of course, injection of the term "normally" twice would render the section meaningless.) The 1977 contract provided that employees would not be required to work on material from a strikebound plant; Respondent's March 15 proposal would qualify such restrictions with the phrase "from a strike-bound plant that is not an established customer of the compa- ny." Article IX of the 1977 contract had permitted post- ing of all Union notices except those which will in anyway embarrass or harass the Company. Respondent's proposal limited the use of the bulletin board to the an- nouncement of union meetings, elections, appointments, and union recreational and social events. The 1977 con- tract had simply required employees to receive regular pay, less jury pay, for any days they served on a jury. Respondent's proposal limited jury pay to 10 days and required employees to report for work on days they served on juries "whenever possible for more than 1 hour" or be disqualified for jury pay. Respondent's pro- posal for article IX would have further deleted the prior contract's provision that required removal of all written warning notices from any employee's personnel file 1 year after entry and further provided that disciplinary action for violation of one rule would not be culminative as to violations of other rules. Finally, for article IX, Re- spondent proposed that funeral leave be reduced in terms of which relatives' death are included and the time al- lowed for funeral leave reduced to that necessary to ar- range and attend up to maximum of 3 days; the prior contract simply allowed 3 days for the funerals of speci- fied relatives. Except for a proposed general increase, discussed infra, Respondent made no proposals in the language of article X, "Wages," or article XI, "Insurance." The prior contracts between Respondent and the Union provided for participation in the Allied Industrial Workers' AFL-CIO, region 9 pension trust fund in con- junction with Bankers Life Insurance Company, Des Moines, Iowa. The 1977 contract, article XII, provided 212 ATLAS METAL PARTS CO. for a contribution of 17 cents per hour for each hour worked by Respondent to that pension fund. In its Feb- ruary 15 proposal, Respondent proposed that it retain the right to eliminate the pension fund and pay, by separate quarterly check, each employee 17 cents per hour for up to 40 hours a week worked; the prior contract provided no limitation on the number of hours per week per em- ployee for which Respondent was required to contribute to the AIW pension fund. The proposal to delete the pension funds concluded: It is hoped that the employees would utilize this ad- ditional money for Individual Retirement Account (IRA) in accordance with applicable law. Upon ob- taining written authorization from an employee, the company will deposit this money directly to the em- ployee's Individual Retirement Account. Article XIII of the prior agreement "Terms of Agree- ment," simply recited that the contract was intended to be the entire agreement between the parties and the par- ties intended the agreement to conform to existing laws. For article XIII, Respondent proposed to eliminate those provisions. It proposed "Rules of Construction," a sec- tion which would restrict the definition of "just cause" and place a strict definition of "past practice" on arbitra- tors which would exclude from consideration, inter alia, matters which "must not be in opposition to the terms and conditions of this agreement." (Of course, agreement with this latter term would mean that arbitrators could not consider past practices.) Respondent further pro- posed as "Waiver of Bargaining," a waiver of bargaining rights during the term of the agreement not only as to matters expressly covered but also "any subject or matter not specifically covered in this Agreement, even though said subject of matter may not have been within the knowledge or contemplation or either or both of the parties at the time they negotiated or signed this agree- ment." Respondent's proposal of February 15 concluded, "the Company proposes an across-the-board wage increase of 6.8 percent for all regular full-time employees. For in- centive workers, the implementation to affect [sic] the in- crease to be discussed and worked out." Mallien testified that at this meeting, Respondent also proposed that the Union could have simply a renewal of the 1977 contract, with no changes, if it were willing to accept a 6.8-per- cent wage increase. Bloomier did not directly dispute Mallien's testimony on this point; he testified that he simply could not remember such a proposal being made. When asked what the Union responded to the "inde- pendent 6.8 percent increase" proposal, Mallien testified that the Union stated that it would have to study Re- spondent's proposals before replying. In addition to Bloomier's failure to deny Mallien's testimony, Respond- ent points to its minutes of the February 15 meeting as corroborating Mallien's testimony that the unqualified 6.8-percent wage increase proposal was made at the Feb- ruary 15 meeting. Respondent notes that the minutes of this meeting (as well as other meetings), were posted by Respondent at the plant and no bargaining committee member objected to the inclusion of the reference to this proposal. However, even without a credible, unqualified denial, it is unlikely that the proposal was made at all, but a virtual certainty that if it was, it was not made in a serious vein. The reasons for this conclusion are: (1) Mallien was clear that his negotiating instructions from Fenlon were to "try and get a contract that would not require people to belong to the Union. Try to do something about the pension. And try to keep the eco- nomics to a cost-of-living increase which was somewhere around 6.8." Also, Fenlon himself admitted on cross-ex- amination that elimination of union shop and checkoff were "must" items and he never authorized Mallien to change Respondent's position on those issues." Mallien is a lawyer of 30 years' experience and I am confident that he had no intention of committing the gross misfea- sance of simply renewing the 1977 contract without any attempt to eliminate the pension fund obligations and the union-shop clause as instructed by Fenlon. (2) The proposal (of contract renewal, a 6.8-percent wage increase, and nothing more) was never reasserted, even in the face of strike threats, a 12-week strike, and over a year of negotiations, all discussed infra. Had the proposal been made, Respondent assuredly would have reasserted it at some stage of this protracted, expensive labor dispute. (3) The proposition of a 6.8-percent increase in wage with no other changes and a proposal of a 6.8-percent in- crease in wages coupled with the plenary changes just enumerated are mutually exclusive. It would be fatuous to conclude that Respondent went to all the trouble of preparing the enumerated proposals with the serious in- tention of dropping them if the Union would agree simply to an increase in wage rates equal to the preced- ing year's increase in the Consumer Price Index. (4) As discussed infra, Respondent granted wage in- creases far in excess of 6.8 percent and continued to insist (throughout a 12-week strike and over a year of ne- gotiations) on, inter alia, the elimination of union shop and checkoff, thus, demonstrating that its objective was far greater than limiting its costs to 6.8 percent which is all that would have been achieved had its proposal been serious. (5) Mallien had testified that the Union responded to this "proposal" by saying it would have to consider the language of other proposals. Mallien did not at the fol- lowing meeting (or thereafter) ask if the Union would accept the 6.8-percent wage increase without any lan- guage changes. Had Respondent been serious, it at least would have asked. Actual, serious, proposals, acceptance of which would dramatically alter the course of bargaining would, at least, be mentioned more than once. The "proposal" of 6.8-percent wage increase, contract renewal and nothing more was mentioned again by neither party during the course of the bargaining, either verbally or in writing. ' In self-contradictory testimony which I discredit, Fenlon did testify that while the elimination of the union-security provisions were a "must" item and that he never authorized Mallien to deviate from that position. Respondent did offer to simply renew the contract for a 6 8-percent wage increase at the March 15 meeting 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meeting 3, February 23, 1978 Respondent's minutes of the third meeting state that Mallien proposed to put into effect the 6.8-percent across-the-board wage increase, effective March 1, while negotiations continued, and the Union was opposed to such implementation. Bloomier testified that the Union stated that any wage increases should be held so that a complete contract could be negotiated. Bloomier further testified, without contradiction, that in this meeting Re- spondent gave as its reasons for proposal of deleting the union-shop and checkoff provisions that Respondent wanted the employees to have freedom of choice about the union membership and did not want to be bothered with the union business of checkoff. Bloomier testified that he responded that the parties had had the union- shop agreement since the beginning of the relationship and things had not been that difficult. The exchange re- garding the union-shop and checkoff positions are not re- corded in Respondent's minutes nor was the Union's stated reason for the Union's opposition to the implemen- tation of the 6.8-percent wage increase on March 1. At the February 23 meeting the Union dropped its proposals regarding reporting paying, additional holiday, laying off of part-time employees, methods of computa- tion of credit earned vacation, institution of a cost-of- living clause, and requests for additional classifications. The Union explained several other proposals and made the following modifications of its economic proposals: Instead of 20-percent increase in I year, the Union pro- posed a 2-year contract with I l-percent increase the first year and 10-percent increase the second year (to this Mallien responded that the wage increases would force Respondent out of competitive position); it reduced its demand for 100-percent contribution to the health insur- ance program to 90 percent; it dropped its pension con- tribution demand from 22 cents to 19 cents the first year and 20 cents the second year; and it dropped its life in- surance coverage demand from $6,000 to $5,000. In discussing Respondent's proposal of February 6, the Union agreed to the "Purpose" proposal but none other. Respondent offered no change in its proposals (and, spe- cifically, it did not propose that the prior contract be re- newed with a 6.8-percent wage increase). Meeting 4, March 10, 1978 The parties met at the Federal Mediation and Concilia- tion Service office, with Commissioner DeHaven, for the fourth meeting. Also present was an AIW pension trust administrator who was present to discuss various changes that were to be made in the AIW pension plan. According to Respondent's minutes, Bloomier an- nounced that there had been a membership vote to strike but he had personally restrained the men. Mallien replied that the employees could strike but the Employer could replace the striking employees. The minutes recite that the Union agreed to portions of Respondent's proposal to limit the authority of arbi- trators but was opposed to the concept of a permanent arbitrator. The minutes further state that the Union agreed to Respondent's proposed "Waiver Bargaining Clause" if the following sentence could be added: This shall not prevent parties from mutually agree- ing to changes or amendments if they wish. Bloomier denied that he agreed to Respondent's propos- als on arbitration and waiver of bargaining and I credit his denial. 12 No other matters were agreed upon at this session; the minutes reflect no concessions by Respondent. Meeting 5, March 15, 1978 For the fifth meeting, the parties met with the Federal mediator, and the Union made the following proposals: The Union reproposed its original demand that in the event an employee does not have a paycheck forthcom- ing out of which union dues could be paid such deduc- tion will be made the following payday; the Union reas- serted its demand for an additional floating holiday; it re- duced its wage increase request to 9-percent for the first year, but requested a 9-percent wage increase for a second year of the contract; it further proposed a shift premium of 22 cents, an insurance contribution of 100- percent on the part of Respondent (which was an in- crease of its 90-percent demand on February 23); it re- duced its demand for increased accident and sickness coverage, it proposed that the pension stay with the AIW plan, and it reduced its weekly accident and sick- ness benefit demand to $91 per week. The Union's March 15 proposal included a second year of the con- tract with a 9-percent wage increase, a shift premium of 23 cents and an increase in accident and sickness benefit to $98 a week. Mallien asked for specific union responses on Respond- ent's proposal of February 15, its initial proposal, and the minutes reflect the following: The Union stated that it opposed the unlimited right of Respondent to raise wages above stated minimums because it was afraid of favoritism. Mallien responded that he would propose an employers' right to raise wage "on a classification or across-the-board basis." Bloomier denied that Respond- ent made this across-the-board proposal and I credit his denial principally because Respondent's proposal made at the following bargaining session, March 27, does not in- clude such a provision. The Union agreed to add "sym- pathy strike" to the existing no-strike language. Mallien advanced the following reasons for proposing that the pension proposal be abrogated: Employees were less likely to spend the money because, if they invested in an IRA fund, there would be penalties imposed if they withdraw the money; the employees could put "the IRA money" into annuity policies with an insurance company and, in that way, "own" the insurance pension; and final- ly, the employees are adults and should be allowed to handle their own money. The Union further objected to Respondent's proposed restrictive changes in the existing funeral leave policy. Respondent proposed that a 7.5-percent wage increase be put into effect the next pay period, and, according to 12 In addition to having a demeanor far more credible than that of Mallien, I find it impossible to believe that Bloomier, or any other self- respecting union representative, would so easily give up all bargaining rights during the term of a contract. 214 ATLAS METAL PARTS CO. the minutes, the Union disagreed. The minutes do not state the reason for disagreement but Bloomier credibly testified that he said he wanted a complete agreement before any wage increases were put into effect. The company minutes further reflect that Bloomier stated that he was opposed to a permanent arbitrator selected from the Wisconsin Employment Relations Commission (WERC), as Respondent had initially proposed, and that Mallien pointed out that a permanent panel meant arbi- tration cases could be handled faster and cheaper since WERC does not charge a fee. Mallien added that if the Union was opposed to using the WERC for arbitrators, Respondent would offer to eliminate arbitration as a final step of the grievance procedure and allow the right to strike over all unresolved matters involving the meaning and/or application of the contract. The Union did not agree to this proposal either, and the matter was left open. The Union further objected to a 45-day limit on an arbitrator's decisions and the Company replied that it would be willing to drop the 45-day requirement if the Union were willing to agree to a 45-day liability limit on the backpay that might be assessed against Respondent in any arbitration. In his testimony, Bloomier agreed that the minutes were essentially accurate as far as they went, but he further credibly testified that he also objected to the 20-day time limit on the typist for typing up tran- scriptions of arbitrations as Respondent had initially pro- posed. Respondent's minutes further reflect that the Union objected to dropping the 24-hour notice of shift changes but would agree to the 1977 provision being renewed with the provision that the 24-hour notice need not apply in emergencies. The Union further objected to the proposed unlimited right of Respondent to grant merit wage increases and the Union further proposed retaining the AIW pension fund. The minutes reflect that Mallien responded that Respondent was opposed to the AIW pension fund because: it had no voice in its changes; the Employer would escape responsibility under ERISA'3 if the pension fund provision were eliminated; and the Em- ployer wanted to pay money directly to employees and let them secure their own retirement program. No agree- ments were reached. Meeting 6, March 27, 1978 The parties met again in the presence of the Federal mediator and the Union presented a proposal for a 2-year contract which included the following provisions: Re- spondent would withdraw all language proposals except those which had previously been agreed to; dues deduc- tions would be made only from checks of pay periods for which the Employer had pay coming; economic benefits for the first year would be: a wage increase of 8 percent; shift premium increase to 22 cents; sickness and accident benefit of $91; insurance premiums to be con- tributed in the same percentage as in the 1977 contract (85 percent); and a pension contribution to the AIW fund of 18 cents. For the second year there would be an 8- percent wage increase, $97 a week sickness and accident " Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001. benefit and a pension contribution of 19 cents per hour worked. Respondent's representatives recessed and returned with the following proposals for a complete contract: "In addition to other items previously agreed," deletion of the union shop clause and inclusion of the affirmative no-union-shop provision quoted above; deletion of checkoff, deletion of the definition of workday (8 hours) and workweek (40 hours, Monday through Friday, inclu- sive) from the section of the 1977 agreement which pro- vided the basis for calculation of overtime; reassertion of the provision regarding overtime was not for a guarantee of overtime; reassertion of the arbitration clause in its ini- tial proposal; reassertion of its restricted jury and funeral leave pay; and reassertions of the demand that it have the right to abolish the pension plan and institute an 18- cent-per-hour direct payment to employees in lieu there- of. Respondent proposed a 7.5-percent wage increase and further demanded the right to treat the wages agreed upon as minimums only. Respondent proposed a second year to the contract which would include a 7-percent wage increase, accident and sickness benefit increased to $91 a week, and increased payment "for IRA" to 19 cents per hour. The minutes recite that Mallien pointed out that two employees who had quit had lost all benefits under the AIW pension fund that if they had had IRA accounts this would not have happened. Mallien further pointed that the Company would "like" to have accounts for those for whom pension has accrued "frozen" but the minutes do not indicate if Mallien stated how this could have been done. The minutes further recite that Mallien declared that the parties were at impasse, and, therefore, Respondent would on the following Monday, April 3, 1978, institute the following: a 7-1/2-percent wage increase, pension payments would be made directly to the employees in- stead of the fund, and the Employer will discontinue checkoff and enforcement of the union-shop provisions of the contract. The minutes recite and Mallien testified that the Union stated that 8-percent was its "bottom figure" on wages. Bloomier credibly testified that the Union never ex- pressed a "bottom figure" for wages. Meeting 7, March 30, 1978 The parties met again at the Federal Mediation and Conciliation Service office where Bloomier presented a 2-year proposal effective March 1. For the first year of the contract the Union proposed a 3-percent increase to day workers and 25 cents to be added to the incentive workers' base rate and further proposed an accident and sickness benefit of $91 a week and a 17-cent-per-hour contribution to the AIW pension fund. For the second year the Union proposed a 7-1/2-percent wage increase for all day workers and a 25-cent increase in the base rate of incentive workers. Finally, the Union proposed that all language proposals of the Company be with- drawn. The Company withdrew to consider the Union's pro- posal and returned with its "final offer" which was for a 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2-year contract effective April 3 providing for a 7-1/2- percent wage increase the first year with a base wage in- crease of 25 cents for the incentive workers. The Com- pany further proposed a $91 accident and sickness bene- fit and 18 cents per hour to employees "for their own in- dividual retirement account or whatever they want to use the money for." Respondent further proposed to eliminate union shop and checkoff but did not propose that the contract include the affirmative no-union-shop language. For the second year, Respondent proposed a 7-1/2-percent wage increase for day workers; increase of incentive workers' base rates by 25 cents, and "increase payments for IRA to 19 cents an hour." Finally, Re- spondent proposed "other changes as previously agreed." The Union counterproposed a -year contract effective March 1 agreeing to the 7-1/2-percent wage increase and the 25-cent-per-hour incentive raise and $91 accident and sickness benefit to which the parties had already agreed, but it again proposed to retain the union shop and check- off and the AIW pension fund agreement. Mallien, on behalf of Respondent, declared that the parties were at "mpasse" so that the Company was on April 3 going to institute a 7-1/2-percent wage increase as well as the $91 accident and sickness benefit. Mallien further stated that as of April 3, there would be no ob- servation of the union-shop or checkoff clause by Re- spondent, but that it would hold off on abbrogating the pension fund agreement until Respondent found out what the effect of the termination would be on the employees. Mallien did state that 18 cents per hour which it pro- posed to pay to the employees in lieu of the AIW pen- sion fund would be on all hours worked as opposed to a limit of 40 hours per week as Respondent had originally proposed. Bloomier, according to the minutes, told the Company that there would be a membership meeting on April 1, and that the employees would probably strike. Mallien testified that Bloomier did not expressly object to the im- plementation of the wage increases and there is no evi- dence that he did so except possibly for the reference to the strike. April 1, 1978 On Saturday, April 1, 1978, the membership of the Charging Party met and Bloomier reviewed for them the proposals of both sides. Bloomier told the employees that he felt Respondent was bargaining in violation of its obli- gations under the labor laws and that the employees should strike because of Respondent's unfair labor prac- tices over which he intended to file charges. A majority of the employees voted to do so. April 3, 1978 On this date, Mallien and Bloomier had a phone call, subsequent to which Mallien wrote a letter to Bloomier reciting the substance of the phone call as follows: (1) the Company and the Union were in agreement that there would be a 2-year contract with 7-1/2-percent wage increases for each year and 25-cent-an- hour in- crease in the base rate for incentive workers; (2) effective date of the wage increases would be March 1; (3) the ac- cident and sickness insurance coverage would be $91 a week; (4) the pension plan remains "as is" and "both sides will explore other plans and IRA"; (5) the parties were still in disagreement about continuance of the checkoff and union-shop provisions of the contract. In his testimony Bloomier did not take issue with Mal- lien's recitation of the parties' respective positions; there- fore, it is undisputed that, as of April 3, the parties were in agreement on other issues, to wit; retention of the 1977 contract's provisions on the AIW pension fund, se- niority computation, strikebound work, superseniority for bargaining committee members, and arbitration and no- strike clauses. Similarly, there was, in effect, agreement that there were to be none of the following provisions which were not in the 1977 contract: affirmative no- union-shop clause; right of Respondent to treat wage rates as minimums; and Respondent's proposal for rules of construction and waiver; and the various other regres- sive provisions in Respondent's February 15 proposal enumerated above. Respondent effectuated the 7-1/2-percent wage in- crease on April 3 and the $91 sickness and accident bene- fit on May 1. April 6, 1978 The employees began a strike on April 6 which lasted until July II. As discussed infra, I find that the strike was caused and prolonged by unfair labor practices of Respondent. Meeting 8, April 20, 1978 At the point of the eighth bargaining session the par- ties were still apart only on union shop and checkoff. In this session the Company reaffirmed its willingness to agree to continue contributions to the AIW pension fund (and explore others) and a 7-1/2-percent wage increase effective March 1; and the Company further agreed to reimburse strikers who had paid full premium for health insurance during the strike; it further agreed that there would be loss of seniority for the strikers; and it agreed that all employees could be returned to their specific jobs. No agreement was made at this meeting because the Union refused to agree to deletion of the checkoff and union-shop clauses. Meeting 9, May 1, 1978 The ninth bargaining session was a brief meeting in which the parties again acknowledged that they were then apart only on union security and checkoff. Mallien again argued that Respondent was opposed to compel- ling employees to belong to the Union although it had no objection to their doing so. The minutes do not re- flect any arguments made concerning checkoffs. Meeting 10, May 16, 1978 The parties met again on this date and their respective positions were reiterated. There was no movement on either side. Mallien suggested that as part of a strike set- tlement agreement, as well as the contract, a preferential 216 ATLAS METAL PARTS CO. hiring agreement be worked out for the employees who by that point had been replaced or for whom no work was then immediately available. There was discussion of this proposal but no indication in Respondent's minutes of the respective positions. Meeting II, June 6, 1978 At the 11th session the Union proposed to settle the strike and the contract issues by the following proposals: (1) All workers hired during the strike would come under an agency-shop agreement but all other "new" (presumably meaning those hired after its termination) would be required to join the Union and all present members would be required to retain their membership. (2) The Union proposed to increase wages from 7-1/2 percent effective March 1, 1978, and 7-1/2 percent on March 1, 1979, as Respondent had proposed March 30, to 8-1/2 percent on March 1, 1978, and 8 percent on March 1, 1979. (3) Finally, the Union proposed that the contract be effective March 1, 1978, and expire on April 1, 1980. Mallien replied that the Union was asking for more than it had theretofore Mallien's notes recite that Bloo- mier stated, "things had changed." Bloomier testified that he pointed out as the justification for his raising the economic demands that the Union was making a conses- sion on union security and wanted something in return. Meeting 12, June 30, 1978 The Union proposed at this meeting that the 7-1/2 per- cent granted on April 2 be made retroactive to March 1, 1978, and that an additional half percent be effective on the date the contract was effective; the Union further proposed an 8 percent wage increase on March 1, 1979 as it proposed in the previous session. The Union pro- posed increase of the accident and sickness benefit to $95.14 Finally, and most importantly, the Union dropped its proposal to continue union shop and proposed instead a maintenance of membership clause, but the Union per- sisted in its insistence upon continuation of the checkoff provision. Mallien replied to the Union's proposals by rejection of the maintenance-of-membership proposal and asserted the following demands: The inclusion of the affirmative no-union-shop clause as originally proposed on February 15; elimination of checkoff and union shop; money for "pension" payments were to be made directly to the em- ployees and not to Allied Industrial Workers' pension plan; the Union was to pay for all damages done during the strike to the plant and the company property; inclu- sion of its seniority proposals which would have the effect of eliminating time spent striking as time accrued for seniority purposes; only a I-year contract; a provision that wage increases be considered minimums only and that the employer had the right to pay in excess of the wage increase stated in the contract; demanded inclusion of its original strikebound work proposal; and inclusion of its original rules of construction and waiver clauses. 14 The Union later told Mallien that this was a typographical error. but this was false as demonstrated by the fact that the $95 accident and sickness proposal reappears subsequently. (It is to be noted that Mallien did not assert any demand for revision of the 1977 arbitration clause at this point.) As is recited by Mallien's minutes, and essentially ad- mitted by Bloomier, Bloomier replied: "The Union's answer is 'no' and 'you can go to hell."' Meeting 13, August 4, 1978 At the 13th meeting the Union reverted to its proposal that the wage increases would be 7-1/2 percent effective March 1, 1978, and requested another 7-1/2 percent ef- fective March 1979; it reasserted its demand for an in- crease in the accident and sickness benefit to $95; it pro- posed no break in seniority for strike time and that strike time be counted for purposes of computing seniority for purposes of figuring vacation eligibility: the Union again proposed that maintenance of membership and checkoff be included and that the contract expire on March 1, 1980; finally, the Union proposed that employees be given the specific jobs that they held before the strike. Respondent counterproposed a -year contract and all other of its positions of June 30 were reasserted. Meeting 14, August 29, 1978 At the 14th meeting the Union advanced two propos- als which differed from its August 4 proposal only to the extent that it agreed to drop its maintenance-of-member- ship demand, but it demanded retention of the checkoff clause. The Union further reverted to its $91 per week accident and sickness benefit proposal. Respondent restated its August 4 proposals including its demand that checkoff be eliminated and offered a 3-1/ 2 percent wage increase effective October 1, 1978. Mal- lien proposed to begin paying at the beginning of the quarter, October 1, direct payments of 17 cents per hour to employees in lieu of AIW pension fund payments. Mallien again added that the Company did not want to be involved with ERISA as a justification for terminat- ing its participation in the AIW pension fund. As the minutes recite, Mallien said Respondent "would rather take the money and give it directly to the people every 3 months." Other matters were discussed at the meeting, including union objections to the foremen doing work theretofore assigned to unit employees. The charge in Case 30-CA- 4882 had been filed on August 3 alleging refusal of "proper reinstatement" of the striking employees. The charge expressly referred to subcontracting, but testimo- ny disclosed that the Union had included the use of su- pervisors working as a basis for that portion of the charge. Meeting 15, September 26, 1978 At the 15th meeting the Union dropped its demand for a 2-year contract, agreeing to accept a -year contract effective on September 30, 1979, but reasserted other po- sitions taken on August 4 and August 29. Mallien replied that Respondent had no change of positions. 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meeting 17, October 12, 1978 Although the parties went to the Federal Mediation office for the 16th "meeting," they did not meet face to face. The only significant matter reflected by the compa- ny minutes is that on this date Mallien told the mediator, in response to his inquiry, that Respondent had no changes to make even if the Union dropped its demand for checkoff. October 2, 1978 On October 2, Respondent effectuated the 3-1/2-per- cent increase proposed on August 29. It further effectu- ated the proposal (reintroduced on June 30) to pay di- rectly to employees, in lieu of contribution to the AIW pension fund program, 18 cent per hour for a maximum of 40 hours per week. Meeting 17, October 12, 1978 At the 17th meeting the Union proposed that the 7-1/ 2-percent wage increase effected April 3 be made retro- active to March I, on top of the October 2 increase of 3- 1/2-percent. It continued to keep the same position taken on September 26 regarding pension, seniority, vacation, but withdrew its proposal regarding checkoff. It pro- posed a 25-cent-per-hour maximum on wage increases and proposed that employees not be required to perform work of strikebound plants where the purchaser had been a regular customer of the employer during the pre- ceding 5 years. It counterproposed a waiver clause limit- ed only to matters covered in the agreement. Respondent took an extensive recess and returned with the following proposals: The contract would be effective from the date of signing for a period of I year only; retain the wages in effect on that date, October 12, making no provision for retroactivity; all wages were to be considered "minimums"; direct payments in lieu of AIW pension fund would continue. Respondent reassert- ed its definition of seniority as time actually worked except for specific examples including absences not in excess of 2 days (for example, the strike such as the one of that year); it reproposed elimination of all supersenior- ity for bargaining committee members as in its original proposal; and it demanded the affirmative no-union-shop language. Regarding the proposal that employees not be required to work on strikebound work except for estab- lished customers, the Company replied; as related in the posted minutes: Section 9.05 This section limits the work that the Company may do for its customers who are in- volved in a strike. The Company has made a pro- posal for modifying 9.05 so as to allow the Compa- ny to perform work for established customers. The Union wants to put five-year limit on "established customers." The Company is unwilling to agree and now counterproposes the deletion of Section 9.05 in its entirety. While Respondent had not theretofore made a propos- al to modify the management-rights clause, in this session of October 12, it proposed to amend the management- rights clause of the previous contract to include an un- limited right to determine whether "any of the work will be subcontracted or performed by supervisors" and the right to make work rules unilaterally. Respondent stated as a reason for the proposals the fact that the Union had filed charges about and otherwise protested Respondent's use of supervisors to perform work and certain subcon- tracting after the strike was terminated. Respondent re- submitted its original proposal regarding waiver of all bargaining rights during the term of the contract. (Re- spondent's minutes recite that this proposal had been agreed to by the Union on March 10, but Bloomier denied having agreed to the proposal and I credit this denial.) Finally, the minutes recite that the Union had previously agreed to Respondent's arbitration proposal and that Respondent demanded that these be included in the new contract. I find that there had been no agree- ment to the arbitration clauses as proposed; rather, I find that the clauses had been withdrawn by Respondent on March 30 when it submitted a proposal which did not in- clude that provision. The October 12 meeting was ended with no agreement reached. Meeting 18, November 27, 1978 At this session the Union resubmitted all of its October 12 proposals except the following: It increased from 5 to 10 of the number of years in which a purchaser could have been a customer of Respondent, for whom the em- ployees could be required to perform strikebound work. It agreed to Respondent's demand for waiver of all bar- gaining rights. In its submission of this date the Union expressly declared the arbitration sections were open denying that any agreement had been reached thereupon. It is undisputed that before the strike there was a four- step progressive discipline procedure for absences (oral warning, written warning, 3-day "layoff" or suspension, and discharge). It is further undisputed that some time after the strike (although it is unclear as to just when) Respondent eliminated the layoff step of this procedure without prior notice to or consulation with the Union. At the November 27 session the Union proposed that the work rules in effect March I be retained and specifically that the layoff step of the progressive absentee discipline be retained. Mallien responded that Respondent wished to establish the right to determine all work rules unilater- ally, as specified in its management-rights proposal of September 26, and specifically that it would not agree to retain the layoff step of the absentee disciplinary proce- dure. Respondent's minutes of the October 12 meeting recite that the Union would not agree to a 1-year contract without another wage increase in March 1979; it would agree to the affirmative no-union-shop clause only if agreement was reached on all other matters; it was un- willing to delete the strikebound work proposal; it was unwilling to agree to the amended management-rights clause and it proposed a 2-cent payment to be made for "wives' annuity." In his testimony Bloomier took no ex- ception to these recitations. No agreement was reached in this session. 218 ATLAS METAL PARTS CO. February 6, 1978 On this date Fenlon wrote Bloomier stating that Re- spondent was considering improvements: a 4-percent wage increase effective March 12; increasing shift differ- ential from 20 cents per hour, "Pension (Money for Ira)" increase from 17 cents an hour to 20 cents an hour "based on a 40 hour week"; an increase in life insurance from S4,000 to $10,000; payment of S7 toward the cost of prescription safety glasses; and increased payment toward safety shoes from $5 to $7 an hour for not more than one pair per year. The Company stated that insur- ance costs may have to be raised because of an increase in prices, but that the Respondent would continue to pay 85 percent of the cost as it was then doing. The letter concluded that the Company would bargain about the matters upon request. Meeting 19, February 13, 1978 Respondent's minutes of the final meeting in evidence recite that it was called to discuss the February 6 letter from Fenlon to Bloomier. The Union asked several ques- tions about "IRA" proposals and agreed to the wage and shift-differential increases. The Union stated that it still wanted the AIW pension plan as opposed to direct grants of money to employees. The parties went over the respective positions; the Union agreed to the deletion of all strikebound work proposals, but no further movement was made. At the end of this, the last, bargaining session the fol- lowing matters remained unresolved: Whether the AIW pension was going to be continued or was the money to be paid in lieu thereof directly to the employees and whether payments in lieu of pension, if any, would limit to 40 hours per week; the effective date of the contract; the definition of "seniority" and the effect it would have on vacation benefits; whether any superseniority for bar- gaining committee members continued; whether the con- tract would contain Respondent's affirmative no-union- shop language; the grievance and arbitration provisions; whether the agreed-upon wage rates were to be only minimums with the unlimited right of the Company to pay in excess of those wages being established; and whether Respondent would have an unlimited right to establish work rules, subcontract work, and have super- visors perform what theretofore had been work per- formed only by bargaining employees. Finally, also unre- solved was the issues of replacement of certain strikers or the reinstatement of certain strikers. March 12, 1979 On March 12, Respondent implemented all of the eco- nomic changes which Fenlon had proposed to Bloomier in his letter of February 6. No further negotiating meetings were held. 2. Conclusions regarding negotiations 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 299, 231 (5th Cir. 1960). As the Supreme Court stated in N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Pruden- tial Insurance Company of America], 361 U.S. 477, 485 (1960): Collective bargaining, then, is not simply an occa- sion for purely formal meetings between manage- ment and labor, while each maintains an attitude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to enter into a collective bar- gaining contract. This obligation does not compel either party to agree to a proposal or make a consession. N.L.R.B. v. American National Insurance Co., 343 U.S. 395 (1952); specifically, it does not compel agreement on checkoff, N.L.R.B. v. H. K. Porter Company, 397 U.S. 99 (1970), or other union-security provisions. However, the Board may, and does, examine 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 bargaining, it must take some cognizance of the reasonableness of the position taken by an employer in 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. Pursuant to these principles I have considered the course of the bargaining. Full consideration leads me to conclude that Respondent has failed to fulfill its statutory obligation and was, as the General Counsel alleges, en- gaging in "surface" bargaining, or bargaining without in- tention to reach agreement. To decide whether an employer has approached and remained at the bargaining table in good faith requires determination of the existence or nonexistence of many overlapping elements including the advancement of pre- dictably unacceptable proposals, 15 the "reasonable- ness"' 6 of the justifications advanced for proposals which are questioned, the reintroduction of previously abandoned proposals which or the reneging on agree- ments previously reached, 7 and the advancement of proposals which are regressive in nature relative to those previously advanced. Each of these elements is present here. The proposals initially advanced by the Union were almost entirely economic. Respondent listened to the "laundry list" at the first session and then returned at the second with a proposal that replied to the wage demand (6.8 percent offered as against 20 percent demanded). But, in addition, it advanced its initial proposal which would have left only two of the sections of the prior contract (and few of the then existing terms and condi- tions of employment) unchanged, each radically for the worse. Is Continental Insurance Co. v. NLR.B., 495 F.2d 44 (2d Cir. 1974); see also Seattle-First National Bank, 241 NLRB 753 (1979), and cases cited therein. '6 See N.LR.B. v. Reed d Prince Manufacturing Company, supra. "7 San Antonio Machine & Supply Corp. v. N.LR.B., 363 F2d 633 (5th Cir. 1966) ' NL.R.B. v. Pacific Grinding Wheel Co., 572 F.2d 1343 (9th Cir. 1978). 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To begin with it is to be noted that Respondent pro- posed to eliminate the recitation that the parties desired a "harmonious relationship." The only reason for elimina- tion of such an innocuous statement was to serve notice that an industrial relations war had been declared. With this declaration Respondent advanced proposals, accept- ance of which would have: reduced the size of the unit (by permitting arbitrary classification of any five employ- ees as excluded "students"); eliminated union shop and checkoff (which had been extant for 20 and 10 years, re- spectively); limited pay for injuries received on the em- ployer's property; made overtime compulsory; redefined "seniority" to penalize employees for strikes; reduced recall rights; eliminated unlimited superseniority for the employees who were negotiating for the Union (and had grievance-handling duties); reduced leave-of-absence rights; made arbitration more expensive, less effective and nonbinding while enlarging the coverage of the no- strike clause to include sympathy and unfair labor prac- tice strikes; eliminated the existing pension fund; and given Respondent the unfettered right to determine and effectuate unilaterally any changes of terms and condi- tions of employment which were not specifically men- tioned, even if the matters had not been considered, or even known of, during negotiations. No article except those covering holidays, manage- ment rights, and insurance was left unassaulted. Even for these it must be noted that Respondent did not expressly reply to the Union's proposals for another holiday and another insurance carrier and it really proposed to en- large the management rights by incorporation of various provisions into other sections such as shift hours, com- pulsory overtime, "normal" use of supervisors to per- form bargaining unit work, grievance investigations, and rights to unilaterally raise wage rates. Reasons for specific proposals must be examined, espe- cially those regarding union shop and checkoff since they were the only ones outstanding before the April 6 strike. In its brief, Respondent advances the following reasons for its absolute insistence upon elimination of all union- security provisions: First, it is common knowledge (a) that industrial union membership is decreasing; (b) that industrial unions are losing elections more often; (c) that there are many more decertifications being effected; (d) that the public support for labor unions has marked- ly decreased; and (e) that labor may have lost much of its reputed national legislative clout. Assuming the accuracy of these tactual assertions, each is predicated upon employees' disaffection with unions, not industrial warfare waged at the bargaining table. More- over, these were not reasons advanced (for obvious rea- sons) at the negotiating sessions herein. At the bargaining sessions Respondent advanced as the reason for elimination of checkoff that it did not wish to be concerned with the Union's bookkeeping business; for elimination of the union-shop clause it reasoned that it believed that its employees should have freedom of choice and that it simply did not wish to agree to be a party to such provision any longer; for the affirmative no-union-shop proposal it advanced no reason. In regard to checkoff it is to be noted that Respondent did deduct money for a "sunshine fund" and proposed to deduct and transmit to banks the employees' "IRA money." The discriminatory inconsistency belies any as- sertion of good faith. Farmers Co-Operative Gin Associ- ation, 161 NLRB 887 (1966). The union-shop agreement had been in effect for 20 years and there is no evidence that there was any em- ployee defection from, or even dissatisfaction with, the Union, no attempt (pursuant to Section 9 of the Act) to revoke the Union's authority to negotiate such a clause, and no alleged abuse of the clause by the Union. (Indeed, there was no evidence that it had never been enforced.) Therefore, Respondent's position cannot be argued as being oriented in any concern over the well-being or in- terests of its own employees. Moreover, viewed along with the simultaneous submission of the unreasoned, re- dundant, and inflammatory affirmative no-union-shop proposal, it must necessarily be concluded that the es- pousal by Respondent of a newly found, abstract philo- sophical opposition to union shop clauses is disingenous. The only reason for elimination of the pension fund Respondent advanced at bargaining was that the employ- ees could put the money into individual retirement ac- counts and it did not wish to be concerned with obliga- tions under ERISA. As discussed infra, Fenlon admitted telling employees Kennedy and Geske that employees would have "ready cash that they would have credited to their accounts." While possibly of immediate appeal to younger employees such as Kennedy and Geske, the pro- posal would devastate older employees of earned pen- sions and, presumably, employees would worry more about loss of their pension than Respondent would about having to comply with ERISA. Examining these additional proposals, and noting espe- cially the reasons advanced initially or subsequently for others as I have just done, it is clear that Respondent did not approach the bargaining table with intent to find a common ground upon which the parties could resolve their differences. It approached the table with the intent to create differences. It intended to create these differ- ences by proposing to eliminate nearly every benefit which the employees had secured by union representa- tion and to reduce the Union itself to a vapid state. While advancement of none of these proposals consti- tutes a per se violation,19 they cumulatively demonstrate that Respondent did not "approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties." L. L. Majure Transport Company v. N.L.R.B., 198 F.2d 735, 739 (5th Cir. 1952); N.L.R.B. v. Herman's Sausage Co., supra. Accordingly, I conclude that Respondent began its course of bargaining in violation of Section 8(a)(5) of the t9 Indeed, modification of the unlimited superseniority provision would seem imperative in view of recent case law. See Dairylea Coopera- tive, Inc., 219 NLRB 656, enfd. 531 F.2d 1162 (2d Cir. 1976). However, if case law was Respondent's reason, or good-faith renegotiations of the clause its objective, it is not reflected by the record herein. 220 ATLAS METAL PARTS CO. Act when it advanced its initial proposal on February 15, 1978. From the advancement of Respondent's initial propos- al, and at all times thereafter the negotiations consisted almost entirely of gamesmanship20 to see which, if any, of the preexisting terms and conditions of employment would be incorporated in any contract subsequently signed. On April 3, on the eve of the strike, Mallien did (tem- porarily) abandon the last of his regressive proposals except elimination of union shop and checkoff and did agree to renew all other language of the contract. Spe- cially, it is to be noted that Respondent agreed to reten- tion of the AIW pension fund as well as various econom- ic concessions including a 2-year contract with 7-1/2- percent wage increase for each year and an increase in accident and sickness coverage. However, Respondent remained adamant in its demand that, union shop and checkoff be discontinued, and the strike ensued. On June 6, when the strike was in its second month, the Union made the first movement on the union-security issue. It proposed that strike replacements could come under an agency-shop provision, but in advancing this proposal it simultaneously asked for an increase of I per- cent above what the parties had theretofore agreed to for the first year of the contract (with retroactivity for the period from March I to the April 6 strike date) and one- half percent for the second. Further movement was made by the Union on June 30 when it dropped its pro- posal to continue the union-shop clause and proposed in- stead a maintenance-of-membership clause. For no reason other than apparent (correct) estimation that the Union was about to capitulate on the two issues which had theretofore divided the parties and further re- alization that the meager wage difference between them was insufficient to justify avoiding agreement, Mallien, on June 30, reintroduced the proposals for an affirmative no-union-shop-clause, elimination of the union pension fund and institution of direct payments to the employees of money in lieu thereof proposals which would have the effect of eliminating time spent striking in figuring se- niority, the proposals that wages agreed upon were to be treated only as minimums, the strikebound work propos- al its rules of contruction and waiver which would have rendered arbitration nugatory (by eliminating considera- tion of past practices), and waived all rights of the Union to bargain during the term of the contract (including the right to bargain upon matters which were not even known at the time the contract was consumated); that is, it reintroduced almost all of the previously withdrawn provisions of its February 15 proposal. Although the Union thereafter capitulated on mainte- nance of membership (as well as union shop), on August 'o Any doubt that Respondent was engaged in an all-too-serious game of catch-me-if-you-can is removed by the following quotation from its brief wherein it comments upon one stage of the Union's collapse thusly: It is interesting to note that had the Union reached this point in its bargaining position on April 3 instead of October 12, the parties would have had total agreement. See, GC-14. Unfortunately, man has not as yet devised a way to squeeze toothpaste back into a tube. This metaphor compels the conclusion that Respondent continues to con- sider "bargaining" to be an exercise in artful dodging to avoid reaching a contractual agreement with the Union. 29 and, further capitulated on checkoff on October 12, Respondent's only response was to first reintroduce its proposal for complete elimination of all superseniority for bargaining committee members and reintroduction of its arbitration proposal which, as noted, had the effect of severely limiting an arbitrator's authority, increase the expense of arbitration, limit all possible liability of Re- spondent to 45 days' backpay and, most importantly, remove the expression that arbitration decisions were binding. The technique of reintroducing proposals which had been taken from the table is a practice which has been roundly condemned by the Board and the courts.21 Re- spondent cites O'Malley Lumber Company, 234 NLRB 1171 (1978), for the proposition that an employer is free to reintroduce proposals upon a finding that "its econom- ic power makes possible the negotiations of a more fa- vorable contract." O'Malley Lumber does not give the employer a license to reintroduce proposals previously rejected and withdrawn any time after a strike. In O'Malley the proposals advanced by the employer were none of the kind advanced herein; that is, none were pre- dictably unacceptable; there was no insistence on the reintroduced proposals as there was in this case; and, most importantly, Respondent herein did not reintroduce all of the predictably unacceptable proposals after a dis- covery of new economic strength; it reintroduced them only after it appeared that agreement was near because of the Union's capitulation on union shop and checkoff. Another technique universally condemned by the Board and the courts is regressive or retributive bargain- ing.22 The best example of this technique is found in Re- spondent's maneuver on struck work, Section 9.05 of the 1977 contract. When the parties were unable to agree on how far the employer could go back to call a customer "established," Respondent countered with elimination of the existing proposal entirely and in its posting of the minutes of October 12, told the employees that disagree- ment was its reason for eliminating the provision. That is, Respondent was retaliating, and it wanted the employ- ees to know it was doing so. Further examples of regres- sion lie in Respondents' March 15 proposal to eliminate arbitration when the Union would not agree to the pro- posed dilution of the clause. Retribution oriented in the exercise of employees' statutory right to have charges filed on their behalf is found in Respondent's Proposals, and Subsequent insistence, on unlimited rights of subcon- tracting and use of supervisors to perform unit work be- cause the Union filed charges on those issues.2 3 Finally, similarly retributive proposals are those insisted on by Respondent to redefine seniority to penalize employees for exercise of the statutory right to strike.2 4 Si See N.LR.B. v. San Antonio Machine Supply Corp.. supra, and case cited therein. aa See N.LR.B. v. Pacific Grinding Wheel Co., supra, also United Brotherhood of Carpenters and Joiners of America. AFL-CIO, Local Union No. 1780, 244 NLRB No. 26 (1979); and Preterm. Inc., 240 NLRB 654 (1970). 2S See Moarkle Manufacturing Company of San Antonio, 239 NLRB 1353 (1979). 24 See N.L.R.B. v. Erie Resistor Corporation, 373 U.S. 221 (1963). 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's course of conduct in these negotiations was quite similar to the Employer's as outlined by the Second Circuit in N.L.R.B. v. Herman Sausage Co., Inc., supra. There the employer demanded a contract equal to that of a competitor rather than renew or improve upon the one then expiring. When the Union produced the competitor's contract the employer counterproposed re- vision of the previous contract with 26 "take away" modifications, including elimination of checkoff. The Union gradually capitulated on certain items but "when the Union met a demand, something new was added." 2 5 Here, Respondent proposed its "take away" items initial- ly, then withdrew all but two of them (checkoff and union shop) on March 30 and April 3; then, when the Union began to capitulate on those two items Respond- ent resubmitted and thereafter adamantly insisted upon agreements to all previously withdrawn take away items as well as continuing in its unyielding, unreasoned 2 demand that union shop and checkoff be eliminated. There is no significant difference in the tactics utilized by Respondent herein and the employer in Herman Sau- sage except for the fact that for a time (from April 3 to October 12) Respondent "in concession" feigned to agree to withdraw its "take away" proposals and renew all 1977 contract language except for union shop and check- off. Those "concessions" were more tactical than real as they were consession only on its proposals which would have eviscerated the prior contract and (directly or ulti- mately) eliminated the Union. Moreover the "conces- sions" were quickly withdrawn when the Union began its capitulation on union shop and checkoff. As noted in Herman Sausage "to make a concession here and there could be the very means by which to conceal a purpose- ful strategy to make bargaining futile or fail."2 7 Upon the entire record, I find and conclude that by its course of conduct in negotiations Respondent failed to bargain in good faith with the Union concerning the terms and conditions of employment of employees in the unit described above. While I find that a part of the course conduct was Respondent's refusal to bargain con- cerning union shop and checkoff, 2 8 this resolution of the issue to no matter derogates from the admonition of the Supreme Court in H. K. Porter Co. v. N.LR.B., to the effect that the existing statutory scheme prohibits official compulsion by the Board or the courts over the actual terms of the collective-bargaining agreement. I further find that the purpose of the Act requires a directive to Respondent, upon request, to resume bar- gaining with the Union in a manner consistent with the requirement of Section 8(d) of the Act. 3. The unfair labor practice strike It is undisputed that the employees voted to strike after Bloomier informed them on April 1, that Respond- ent had been bargaining in bad faith and that he intended to file charges over the matter with the National Labor 26 275 F.2d at 233. t" See discussion supra. 27 275 F.2d at 232. a' Queen Mary Restaurants Corporation, 219 NLRB 776 (1975), enfd. 560 F.2d 403 (9th Cir. 1977); Pacific Grindine Wheel Co., Inc., supra: Mar- len Cabinets, Inc., 243 NLRB 523 (1979). Relations Board. It is true that when the employees began the strike, the parties were apart only on the issues of union shop and checkoff. However, since Respond- ent's position on these two issues was a pivotal part2 9 of its violative course of conduct, it must be concluded that the strike, at least in part, was caused by Respondent's conduct which violated Section 8(a)(5) and (1) of the Act, and I so find and conclude. The strike continued until July II, when the Union, by letter of that date made an unconditional30 offer on behalf of the striking employees to return to work. C. Other Alleged Violations of Section 8(a)(5) 1. Individual bargaining The complaint alleges that since on or about February 3, 1978, Respondent bypassed the Union and dealt direct- ly with employees. General Counsel's contentions in this regard rests on Respondent's posting of Mallien's minutes of the bargaining session and one conversation Fenlon had with two employees. The minutes of the bargaining sessions were composed by Mallien who dictated his notes into a portable record- er immediately after each bargaining session. The dicta- tion was then transcribed by a typist. These minutes, after being reviewed by Mallien, were posted along with any written proposals which were exchanged. While it is true that the minutes failed fully to set forth the positions and reasons for the positions taken by the Union, they only occasionally misstated those positions and the mis- statements are so sporadic that no conclusions can be drawn that this was done by Mallien intentionally. The minutes did make one reference to Bloomier's being un- prepared to explain one of his proposals (request for wage reviews) and they did blame the Union for delays of minutes or hours while the Employer's representative cooled their collective heels. However, in contrast to the facts of the cases cited by the General Counsel in his brief, there were no threats contained in the minutes and no demand, or even urging, that the Union or any partic- ular representative of the Union be repudiated. In fact, minutes do not urge the employees to do anything. Accordingly, I find no violation of Section 8(a)(5) in Respondent's posting of its bargaining minutes. The conversation alluded to by the General Counsel as individual bargaining by Fenlon was conducted during a series of "waste control" meetings. These meetings which also had been conducted during prior years of bargaining were used by Respondent to explain to em- ployees the course of negotiations and positions it was taking. Respondent also used the meetings to ask em- ployees about their work and what would help them to do it better, although there is no allegation that Respond- ent solicited grievances in these meetings. 2a Indeed, as Fenlon testified, he never authorized Mallien to compro- mise on these two issues. 30 Contrary to Respondent's contention, the fact that some individual employees requested different shifts or jobs than Respondent offered them on or after July 17, does not render the Union's July I 1, offer "con- ditional." 222 ATLAS METAL PARTS CO. The General Counsel placed in evidence the testimony of employees Kenneth Geske and Ronald Kennedy who attended the same meeting. Kennedy and Geske testified that in addition to discussing various jobs, Fenlon stated that he could not understand why employees would not prefer direct payments which they could use for IRA pension funds rather than being covered by the AIW pension plan. They testified that Fenlon stated that money would be credited to their account immediately whereas under the AIW plan they would have to wait 5 years for any benefits to accrue to them. Fenlon ad- mitted the remarks described by Kennedy and Geske and further admitted telling the employees that Respondent's "pension" proposal would give them "ready cash" that they would have credited to an account of their own. While Fenlon did explain to Geske and Kennedy the virtues of Respondent's proposal, the conversation falls far short of individual bargaining prohibited by Section 8(aX5). Fenlon offered the employees nothing, he asked them to do nothing, and the statements can be consid- ered bargaining in no sense of the word. Accordingly, I shall recommend that this allegation of the complaint be dismissed. 2. Unilateral actions The complaint and amendments thereto allege the fol- lowing admitted unilateral actions as independent viola- tions of Section 8(a)(5): The April 3, 1978, wage increase of 7-1/2 percent to all employees: The May 1, 1978, increase in accident and sickness benefit from $84 to $91 per week. The October 1, 1978, wage increase to all employees of 3-1/2 percent. The August 1978 work rule change, suspension of the third step in the progressive disciplinary procedures for absences; namely, 3-day layoffs. The February 6, 1979, implementation of a general wage increase of 4 percent. The February 6, 1979, increase of shift differential from 20 cents to 22 cents per hour. The February 6, 1979, increase of life insurance cover- age from $4,000 to $10,000. The February 6, 1979, institution of payment for em- ployees' safety glasses and increase in payment from $5 to $7 the allowance for safety shoes. The complaint further alleges that on or about Octo- ber 1, 1978, Respondent unilaterally instituted "a new re- tirement program for employees" and also alleges that on February 6, 1979, Respondent unilaterally increased its payments to the "IRA program" from 17 cents to 22 cents. Respondent replies to each of these allegations that the actions were taken only after impasse was reached in bargaining and therefore it had a lawful right to institute its last proposal on each of the topics. As I have found above, however, Respondent began its course of bargain- ing in bad faith on February 15, 1978. Since a finding of "impasse" requires antecedent good-faith bargaining, 3" no impasse was reached. Rather, the actions were taken sI Taft Broadcasting Co. WDAF AM-FM TV. 163 NLRB 475 (1967) only after bargaining was stalemated by Respondent's violative course of bargaining. Accordingly, I reject Re- spondent's defense of "impasse." It is to be further noted that there was no bargaining at all on the institution of the elimination of the third step of the disciplinary proce- dure. Respondent unilaterally eliminated the step and then proposed, and insisted upon, contractual terms me- morializing the fait accompli With regard to the allegation that Respondent unilater- ally instituted and thereafter increased its payments to a new retirement program for employees, it is to be noted that this allegation of the complaint is a mischaracteriza- tion of what happened. Respondent did not institute a new retirement program. As stated in its notice to em- ployees dated September 27, Respondent took the fol- lowing action: At the end of each calendar quarter (beginning with the quarter ending September 30, 1978), each regu- lar and full-time employee who at those times has at least I year of seniority and is then on the payroll, will receive a separate check from the company, computed on the basis of 18 cents per hour for up to 40 hours per week for hours worked during the then-ending calendar quarter. This is in lieu of com- pany payments into the AIW Union pension plan. It is hoped that the employees will utilize this addi- tional money for an individual retirement account ("IRA") in accordance with federal tax law. This is not the institution of a pension plan. It is an insti- tution of a direct grant of moneys to employees with only a stated hope that they take steps to secure their own individual retirement account. Accordingly, it is concluded that on October 1, 1978, Respondent abol- ished the pension fund then existing for its employees and it unilaterally granted to the employees a wage in- crease of 18 cents per hour for up to 40 hours per week worked and increased that payment to 22 cents per hour on or about February 6, 1979, all in violation of Section 8(a)(5) of the Act. Crest Beverage Co., Inc., 231 NLRB 116 (1977), and cases cited therein.3 2 The complaint further alleges that Respondent at some time during this strike unilaterally subcontracted a sub- stantial amount of tool-and-die and punch-press work. The complaint further alleges that upon the termination of the strike Respondent unilaterally and discriminatorily refused to return the subcontracted work to the unit. Neither the General Counsel nor Charging Party argues these allegations in their briefs and I find no violation in Respondent's actions in this regard. The contracting out during the strike was nothing more than the usual em- ployer attempt to avert the economic consequences of a strike and is under no theory unlawful. There was unre- 32 While the abolishment of the AIW pension fund program is not spe- cifically alleged, the action is the immediate consequence of the imple- mentation of a "new retirement" plan, as alleged in par. 12(e) of the com- plaint, and therefore "clearly falls within the ambit of the complaint." Party Cookies. Inc.. 237 NLRB 612 (1978). This is especially true where the employer has professed a hope that IRA accounts will be started by the employees with the new direct payments since, the Internal Revenue Code such accounts are available only to individuals. 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD butted testimony that Respondent had always contracted out some work in the tool-and-die department. While the General Counsel placed in evidence records which dem- onstrate payments made before, during, and after the strike for work contracted out, there is no evidence as to when the work was done or to what extent it differed in nature from Respondent's past practice. Accordingly, I find no violation in Respondent's failure to return work to unit employees after the strike. Finally, as unlawful unilateral action, the complaint al- leges that in late March 1978, Respondent unilaterally gave certain of its employees a bonus for high produc- tion. The testimony in this regard is that in late March 1978, Fenlon made a bet with the punch-press supervi- sors that neither shift could exceed 90-percent incentive during any week in which the entire shift had a perfect attendance record. During I week of March, the second- shift punch-press operators did achieve this goal and Fenlon paid off the supervisors. In addition, he granted to all punch press operators on the second shift (and one setup man who operated a punch-press for a few hours that week) gift certificates worth $7 at a local restuarant, apparently a chain-type steakhouse. No other employees received such certificates and the grant has not been re- peated. Respondent's brief characterizes the grant of the trade certificates as "spontaneous generosity." I agree. I find that, assuming a theoretical violation to have occurred, it would not effectuate the policies of the Act to issue re- medial order upon this isolated action of Respondent. Accordingly, I shall recommend that this allegation of the complaint be dismissed. 3. Refusal to furnish information The complaint alleges that since on or about August 4, 1978, Respondent has refused to furnish the Union infor- mation concerning subcontracting. By letter of August 4, from Bloomier to Fenlon, the Union requested, in writ- ing, certain information which was furnished. Additional- ly, as Bloomier's letter states: "The Union further re- quests to know whether the company has contracted out work, to whom and for how long. We are further re- questing copies of any agreement of subcontracting." Mallien replied by letter dated August 7, in which he stated that he would furnish other information requested by the Union but, "with respect to contracting out work, the company has done this for many years." The issue of subcontracting was vital not only to the negotiations outlined above but also the replacement of returning employees such as Behling discussed below. Respondent makes no argument that the information is not relevant and necessary to the performance of the Union's duties as collective-bargaining representative. In fact, Respondent does not address this allegation of the complaint in its brief at all. Since it is not disputed that Respondent did in fact refuse to furnish this information, which I find was relevant and necessary to the Union's statutory functions of collective-bargaining and griev- ance handling, I find that Respondent's refusal to furnish said information was violative of Section 8(a)(5) of the Act. Specifically regarding information about subcon- tracts allegedly affecting striking employees, see Wallace Metal Products, Inc., 244 NLRB No. 10 (1979); see also N.L.R.B. v. Acme Industrial Tool Co., 385 U.S. 432; Markle Manufacturing Co. of San Antonio, 239 NLRB 1142 (1979). D. Alleged Discrimination Against Strikers I. John Carson The complaint alleges that on or about July 17, and August 11, Respondent refused to assign returning striker John Carson to the second shift in order to discourage employees from engaging in activities on behalf of the Union in violation of Section 8(aX5) of the Act.3 3 Before the strike Carson had been a punch-press operator and punch setup man on the first shift. Carson had been a past president of the Union and actively participated in the strike from April 6 through July 11. Carson was not reinstated on July 17 along with some other returning strikers, but on August 11 he received a letter from Fenlon instructing him to report to work as a utilityman- janitor, suggesting that he take it and wait for a better paying job when it became open. When Carson reported, Teufel told him that there was no job open as a utility man-janitor but he could have a punch-press operator's job. Carson asked for a second-shift job as opposed to the first-shift job which Teufel offered. When asked why he requested a second-shift job, Carson replied that he wanted to avoid personal animosity toward him from Fenton. (If there was such animosity, evidence thereof was not placed in the record.) Teufel denied Carson's re- quest, but the following week Teufel recalled employee Hoffemyer to work the second shift as a punch-press op- erator without offering the shift to Carson. In regard to the reason the employer refused to allow Carson to transfer to the second shift, Company Negotia- tor and Attorney James C. Mallien, who advised Re- spondent in various reinstatement matters, testified: "Well, we felt that we didn't have adequate supervision to permit Carson to work on the second shift and there was not much supervision and Carson had been involved in some very serious threats. He told somebody he was going to kill them in the course of the strike. And we felt that we better have him on the first shift where we could keep an eye on him." Carson admitted that during the strike he said loudly in the presence of an employee who was attempting to cross the picket line that he did not care if such employ- ees got their head bashed in. This statement was made in the presence of several other employees.3 4 There is no evidence that Respondent would have granted Carson's request to transfer to second shift for any reason other than his threat upon the life of the nonstriking employee. Since the admitted threat by Carson was not activity protected by the Act, no violation can be based on Re- 13 It is to be noted that this is not an allegation that Respondent un- lawfully refused to reinstate Carson after unconditional offer to return to work was made on his behalf. It is essentially an allegation that, after Carson was offered reinstatement, he requested transfer to the second shift and that request was denied because of discriminatory motivation. '4 Over this incident Carson pleaded nol contendre to a Wisconsin charge of threatening the life of another person. 224 ATLAS METAL PARTS CO. spondent's actions in this regard. Accordingly, I shall recommend this allegation of the complaint be dismissed. 2. Donald Behling The complaint alleges that on or about July 17 and July 26, Respondent discriminatorily refused to reinstate returning striker Donald Behling to his former classifica- tion in the tool-and-die department and further alleges that on or about August 24, 1978, Respondent discrimin- atorily refused, and continues to refuse, to consider Behl- ing for a truckdriver's position, all in order to discourage employees from engaging in activities on behalf of the Union in violation of Section 8(a)(3). Behling has been employed by Respondent for about 17 years. He started out as a tool-and-die maker appren- tice and was promoted 4 years later to the position of tool-and-die maker which was one of the highest paid classifications in the bargaining unit. Behling was a union signatory to the 1977 contract and was chairman of the 1978 bargaining committee and attended all but one of the negotiations sessions for the 1978 contract. As tool- and-die maker Behling "did everything from sharpening dies, anything that was asked to do, we did in the tool room . . . including sharpening dies, repairing dies, building dies, this type of situation, and die grinding." For all such work he was paid diemaker's rate. Two other employees, Francis Carl Tom and Russel Haffel- meyer, worked with Behling in the toolroom. On July 25, Behling was called back to work as a janitor-utility man doing mostly sweeping and maintenance-type work. Behling worked as such from July 28 until September 10, when he was placed in the toolroom and classified as a die grinder. Sometime in late August, while Behling was working as a janitor, he made an application for transfer to a job as truckdriver for which there was then a vacancy.35 Behling was denied his request to transfer to the truck- driver's job. At the September 8 negotiating session, Mallien told the Union the denial was being made be- cause Behling had constantly been "bad mouthing" the Company and would not make a good "ambassador." At the hearing the only "bad mouthing" ascribed to Behling by Fenlon were statements he made during 1977 and 1978 negotiating meetings. Respondent introduced no evidence of any type to ac- tivity by Behling during the course of the negotiations which could be considered unprotected by the Act. Since his participation in negotiations was plainly pro- tected by the Act, whether Respondent considered it "bad mouthing" or not, the refusal to assign Behling the truckdriving job based thereon is a violation of Section 8(a)3) and (1) of the Act and I so find and conclude. At the hearing Fenlon feebly advanced further excuses for not granting the truck driving job to Behling. First, he contended that Respondent did not know whether Behl- ing had the proper driver's license because his (17-year old) application did not reflect it. However, Behling was not asked if his application was currently, or ever was, 36 Behling was paid $5.28 per hour as "utility man-janitor"; with the 7- 1/2-percent increase of April 3, as a truckdriver, he would have made $5.51 per hour. accurate. Fenlon also stated that Behling was sometimes absent on Mondays, but his record of absenteeism was not introduced by Respondent and Fenlon conceded that Behling was never disciplined for absences. Accordingly, I find these belated excuses to be frivolous afterthoughts, and not a defense to the allegation. Finally, at the hear- ing, Fenlon advanced another reason for denying the truckdriving job to Behling which deserves separate con- sideration. Fenlon testified: "I'll add one thing, that his actions on the picket line-we thought that he should be supervised a little more closely rather than have him out in the streets distributing our products." Picket line ac- tivity is generally protected, and the duty of going for- ward with evidence of conduct which would remove the mantle of statutory protection is upon Respondent if, upon such alleged misconduct, it bases its poststrike em- ployment decisions. Rubin Brothers Footwear, Inc., 99 NLRB 610 (1952). Respondent adduced no evidence of such misconduct, further fortifying my conclusion that the refusal to grant Behling the truckdriving job was dis- crimination in violation of Section 8(a)(3) and (1) of the Act. After being denied the truckdriving job, Behling con- tinued working as utilityman-janitor until he was re- turned to the toolroom on September 10. During the strike Respondent contracted out all the tool-and-die work which it could. Before the strike, Behling and em- ployee Francis Carl Tom were classified as tool-and-die makers and no employee was classified as a die grinder although they regularly did die grinding work. They, along with employee Russell Haffelmeyer (whose classi- fication is not disclosed by the record) performed all the toolroom work. The toolroom foreman, Gotlieb Kellen, was contractually prohibited from performing either grinding or diemaking work. After the strike, until Behl- ing was returned to the tool-room on September 10, the work was performed by employee Richard Quilan, who was hired during the strike from his sweeping job on September 10, he was reclassified as a die grinder and paid the rate for that job which was less than that of die- maker.3 6 Only when Behling was assigned specific die- making tasks was he paid at the diemaker's rate. It was Behling's undisputed testimony that before the strike he was paid the diemaker's rate, whether he was diemaking or die grinding. As I have found infra, the strike from April 6 to July 11, was caused and prolonged by Respondent's unfair labor practices. Therefore, Respondent had a duty to re- instate Behling upon his unconditional application, dis- charging if necessary any replacement who was hired during the strike. Given the factor that the strike was caused by unfair labor practices of Respondent, the only defense left for the refusal to reinstate Behling is that his job was lawfully abolished. Respondent contends that the need for a full-time die- maker was eliminated because during the strike it began to use a new type of die which could not be fabricated in '6 Under the expired contract, diemakers received 6.33 per hour; the stated rate for the die grinder job, when it was filled, was $5.27 per hour. As discussed infra, all subsequent raises in wages were on a percentage basis, so the differences would remain constant. 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the shop, so the work necessarily had to be contracted out. The evidence of this change in die use, in terms of volume and nature, is solely Fenlon's bare testimony which I find to be insufficient to meet Respondent's burden of proving that the job had, in fact, been abol- ished with introduction of a new die. Also, if the job was abolished by subcontracting, the abolishment was accom- plished without notice to or consultation with the Union in violation of Section 8(a)(5) of the Act, and therefore not done lawfully. Since the record is insufficient to conclude that the job was, in fact, abolished, the conclusion is left that all Re- spondent did was delay reinstatement of Behling until September 10, and then reduced him to the rate of a die grinder from that of a diemaker, a difference of $1.06 per hour. This is so because before the strike, Behling was then the diemaker's rate, whether he was diemaking or die grinding. Given the failure of Respondent to prove the job was lawfully abolished the only differentiating factor proven by this record is the strike and Behling's participation in it, a basis prohibited by Section 8(a)(3) and (1) of the Act. In summary, I find and conclude that in violation of Section 8(a)(3) and (1) of the Act, Respondent delayed Behling's reinstatement from July 17 until September 10, upon which latter date it unlawfully reduced Behling's wages by $1.06 per hour, and further that during the period in which Behling's reinstatement was being de- layed, Respondent unlawfully refused to consider him for the position of truckdriver. Therefore, Respondent shall be ordered to increase Behling's wages to that of a diemaker and make him whole for any loss he suffered by reason of the delay3 7 in reinstatement and the subse- quent reduction of his wage rate. Since the diemaker job paid $1.13 more per hour than the truckdriving job, it is unlikely that Behling would have preferred to keep the truckdriving job over the diemaking job. However, there may be desirable overtime involved or reasons personal to Behling which could cause him to do so. Therefore, it shall be ordered that Behling be given nondiscrimina- tory3 8 consideration for the truckdriver's job and, if of- fered, the option of choosing which job he prefers, and he shall be given a reasonable amount of time to make his selection. 3. Other strikers The complaint alleges that "on or about July 17, 1978, Respondent failed and refused to reemploy and reinstate the striking employees to their former or substantially equivalent positions of employment" after they made un- conditional offers to return to work on July 11. Re- spondent denied this paragraph of the complaint, but the General Counsel put into evidence no testimony regard- ing a refusal to reinstate any employee except Behling. 37 At minimum, it must be concluded that this delay was "undue" so there is no purpose served in attempting a reasonable accommodation be- tween the interests of the employee in returning to work as quickly as possible and the employer's need to effectuate that return in an orderly manner; accordingly, the 5-day grace period usually afforded employers shall not apply. Newport News Shipbuilding & Dry Dock Company, 236 NLRB 1637 (1978). 3a Of course, if Behling is disqualified from the job solely because of lawful considerations, Respondent is not required to offer it to him. At the hearing the General Counsel indicated that he thought that the issue of which other employees were denied reinstatement should be left to the compliance stage of this case. I disagree. The issue was drawn by the pleadings. The alleged refusal to reinstate strikers was the violation, not the remedy. The burden of proving the allegation was upon the General Counsel, and I find that he failed to do so. Accordingly, I shall recommend that this allegation of the complaint be dismissed. 3 9 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor pratices I shall recommend that it cease and desist therefrom and that it take certain affirmative action de- signed to effectuate the policies of the Act. I shall order Respondent to meet, upon request, with the Union and bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the unit found appropri- ate herein and, if agreement is reached, embody it in a signed contract. It is further appropriate to order Re- spondent to honor the terms of the expired contract until impasse or a new contract is reached. United Contractors Inc., et al., 244 NLRB No. 13 (1979). I shall further order Respondent to make whole its employees for any losses they may have incurred by its unilateral elimina- tion of the AIW pension fund. (However, in no event are the employees to be compelled to remit to Respondent the moneys they have received in lieu of Respondent's contribution to that pension fund.) Respondent shall be further ordered to make all pension contributions as re- quired by the contract that expired March 1, 1978, to the extent that such contributions have not been made, and to continue such contributions until Respondent negoti- ates in good faith with the Union to a new contract or to an impasse. Crest Beverage Co., supra. I shall further rec- ommend that Respondent be required to make whole employee Donald Behling for the discrimination against him in the manner specified in section II, (D),(2), above with interest computed thereon in the manner proscribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). For the reasons set forth in M.F.A. Milling Com- pany, 170 NLRB 1079 (1968), enfd. 463 F.2d 953 (D.C. Cir. 1972), I shall recommend that Respondent reimburse 39 Compare MCC Pacific Valves, A Unir of Mark Controls Corporation, 244 NLRB No. 138 (1979), where the matter was left to the compliance stage only because the General Counsel was erroneously precluded from presenting evidence on the issue. 226 ATLAS METAL PARTS CO. the employee-members of the union negotiating commit- tee for the wages lost, if any, while attending past nego- tiating sessions with interest thereon to be calculated in the same manner as stated above. K-Mart Corporation, 242 NLRB 855 (1979). CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following unit is appropriate for the purposes of collective bargaining: All employees of Respondent excluding executives, supervisors, foremen, professional employees, office clerical employees, draftsmen, all other employees who have the right to hire and fire and discharge and certain temporary employees not to exceed five (5) in number, which are defined as summer student help for a period not to exceed ninety (90) days. 4. At all times material herein the Union has been the exclusive collective-bargaining representative of the em- ployees in the unit described in paragraph 3 of this sec- tion. 5. Since on or about February 15, 1978, and continuing thereafter to date, Respondent has, by the following acts and conduct, refused to bargain collectively in good faith concerning wages, hours of employment, and other terms and conditions of employment for the employees in the unit described above in violation of Section 8(a)(5) of the Act. (a) Its overall conduct in negotiations beginning on February 15, 1978. (b) By unilateral changes in wages and other terms and conditions of employment. (c) By failing and refusing to furnish the Union with information regarding subcontracting. 6. The strike which began on or about April 6, 1978, was caused and prolonged by the unfair labor practices of Respondent in its overall course of bargaining and its unilateral actions taken before July 11, 1978. 7. By discriminating against employee Donald Behling, by delaying his reinstatement, reducing his wage rate, and refusing to consider him for transfer from the posi- tion of janitor to that of truckdriver, Respondent has violated Section 8(aX3) and (1) of the Act. 8. By threatening an employee with more onerous working conditions if he filed a grievance, and by discri- minatorily instructing employees not to talk about the Union, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaran- teed by Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 9. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7, of the Act. 10. The General Counsel has proved no other allega- tions of the complaint. Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER40 The Respondent, Atlas Metal Parts Co., Inc., Wauke- sha, Wisconsin, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union, upon request, as the exclusive representative of employ- ees in the following appropriate bargaining unit: All employees of Respondent excluding executives, supervisors, foremen, professional employees, office clerical employees, draftsmen, all other employees who have the right to hire, and fire and discharge and certain temporary employess not to exceed five (5) in number, which are defined as summer student help for a period not to exceed ninety (90) days. (b) Discouraging membership in Local 806, Interna- tional Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization, by delaying reinstatement of employees, reducing wages of employ- ees, denying job opportunities to employees, or other- wise discriminating against employees for engaging in a protected strike or other lawful union or concerted ac- tivities for the purposes of mutual aid and protection. (c) Threatening employees with the assignment of more onerous working conditions if they filed griev- ances. (d) Instructing employees not to talk about the Union on Respondent's premises during working time in ab- sence of a valid no-solicitation rule. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed them by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain in good faith with Local 806, International Union, Allied Industrial Workers of America, AFL-CIO, as the exclusive bargaining repre- sentative of the employees in the unit described above and, if an understanding is reached, embody such under- standing in a written, signed contract. (b) Honor the provisions of the contract which expired on March , 1978, until impasse or a new contract is reached. (c) Make whole the employees in the above-described unit for any losses they may have incurred by reason of Respondent's unilateral discontinuance of their pension plan and pay all pension contributions as required by the bargaining contract that expired on March 1, 1978, to the '0 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recemmended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent that such contributions have not been made, and continue making such payments until Respondent negoti- ates in good faith with the Union a new agreement or to an impasse. However, in no event shall the employees be required to remit monies paid to them in lieu of contribu- tions to the pension plan Respondent discontinued un- lawfully. (d) Furnish to the above-named labor organization the information requested concerning the use of subcontrac- tors. (e) Make whole, with interest, Donald Behling, for losses he may have incurred by reason of the delay in re- instating him from July 11 to September 10, 1978, the subsequent reduction of his wage rate, and the refusal to give him consideration for the job of truckdriver. (f) Make whole each employee member of the negoti- ating committee of the Union for earnings lost while at- tending past bargaining sessions with interest thereupon in the manner prescribed by Isis Plumbing & Heating Co. and Florida Steel Corporation, supra. (g) Post at its Waukesha, Wisconsin, facility copies of the attached notice marked "Appendix." 4 ' Copies of said 4" In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by notice on forms furnished by the Regional Director for Region 30, shall, after being duly signed by Respondent's authorized representative, be posted 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. (h) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 228