D & H Mfg., Co.

D & H MANUFACTURING CO. D & H Manufacturing Co. and International Associa- tion of Machinists and Aerospace Workers, AFL- CIO, District Lodge No. 93, Local Lodge No. 504. Case 32-CA 260 (formerly 20-CA 13110) November 21, 1978 DECISION AND ORDER BY MEMBERS JENKINS. MURPHY. AN[) TRUESDALE On August 22, 1978, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions I and a supporting brief, and the Re- spondent 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, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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 modified below, and hereby orders that the Respondent, D & H Manufacturing Co., Santa Clara, California, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph l(b): "(b) Promising employees various economic bene- The General Counsel's exceptions were limited to the Administrative Law Judge's failure to recommend that the Respondent he ordered to reim- burse the General Counsel and the Charging Party for expenses incurred In litigating this case and to his failure to specify. in par. 3 of his notice, "individual retirement accounts or pension plans" as benefits found bh him to have been unlawfully promised by the Respondent to employees. The General Counsel also excepted to the Administrative I aw Judge's inclusion of the word "into" in the cease-and-desist language of par 5 of the notice In regard to the exception to the Administrative Law Judge's failure to recommend that the General Counsel and the Charging Party be reim- bursed for litigation expenses. we find that the expanded remedy is not warranted, inasmuch as the Administrative Law Judge made material find- ings of fact based onhis cr' Judge made material findings of fact based on his credibility resolutions which indicated that the Respondent's defenses were at least "debatable." See Hecks, Inc., 215 NLRB 765 (1974). In all other respects we find merit to the General Counsel's exceptions and shall make the necessary modifications in the notice. We shall also modify par I (b) of the Administrative Law Judge's recommended Order because he simi- larly failed to refer therein to "individual retirement accounts or pension plans" as part of the various benefits unlawfully promised to employees by the Respondent fits-including, but without limitation, wage increas- es, a profit-sharing plan, individual retirement ac- counts, pension plans, and possible alternatives to some prospective collectively bargained pension plan-for the purpose of encouraging such emploN- ees to withdraw support from Complainant Union as their collective-bargaining representative." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THt NATIONAl LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit our employees to sign pe- titions calculated to bring about the decertifica- tion of International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, or any other labor organization; nor will we cooperate with or endorse such solicitation. WE WILL NOT promise our employees particu- lar economic benefits, such as wage increases, profit-sharing plans, individual retirement ac- counts, pension plans, or possible alternatives to some collectively bargained pension plan for the purpose of encouraging them to withdraw their support from the Union named herein, or any other labor organization, as their collective-bar- gaining representative. WE WILL NOT threaten our employees with statements suggesting that their continued union membership, or manifestations of support for that designated labor organization or any other, would be futile because we would never sign a union contract, or would never permit a labor organization to represent our employees. WE WILL Nor threaten our employees with possible discharge, or threaten to remove them from consideration for a possible promotion, should they testify in some National Labor Re- lations Board proceeding. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees with re- spect to their exercise of those rights which the National Labor Relations Act guarantees. WE WILL, upon request, bargain collectively in good faith for an initial period of I year from the date, hereafter, on which negotiations begin with International Association of Machinists and Aerospace Workers, AFL CIO, District 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lodge No. 93, Local Lodge 504, as the exclusive representative of our employees within the bar- gaining unit described herein: All production and/or maintenance work- ers at our Santa Clara, California location, ex- cluding office clerical employees, guards and supervisors as defined in the National Labor Relations Act, as amended. If such collective-bargaining negotiations, con- ducted in good faith, produce an agreement, we will embody such agreement in a signed con- tract. D & H MANUFACTURING CO. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed July 7, 1977, and duly served, the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing, dated August 31, 1977, to be issued and served on D & H Manufacturing Co., desig- nated as Respondent within this Decision. Therein Re- spondent was charged with the commission of unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519, 88 Stat. 395. Respondent's answer, duly filed, tacitly conceded certain factual allegations within General Counsel's complaint through a failure to plead but denied the commission of any unfair labor practices. Pursuant to notice, a hearing with respect to this matter was held before me on January 31 and February 1, 1978, in San Jose, California. The General Counsel and Respon- dent were represented by counsel; Complainant Union noted a formal appearance through its business representa- tive. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence with respect to pertinent matters. Since the hearing's close, briefs have been received from General Counsel's representative and Respondent's counsel; these briefs have been duly considered. Upon the entire testimonial record, documentary evi- dence received, and my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claims. Upon his complaint's relevant factual declarations-specifically, those set forth in detail with the second paragraph thereof-which are conceded to be correct, and upon which I rely, I find that Respondent herein was throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business operations which affect commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for presently applica- ble jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectu- ate statutory objectives. 11 COMPLAINANT UNION International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, designated as Complainant Union within this de- cision, is a labor organization within the meaning of Sec- tion 2(5) of the Act which admits certain of Respondent's employees to membership. III. UNFAIR LABOR PRACTICES A. Issues This case, which derives from a comparatively simple, straightforward factual situation, nevertheless presents sev- eral distinctive but closely related factual and legal ques- tions. Those questions, generally, may be summarized as follows: I. Did Responden.'s president and owner interfere with, restrain, and coerce his firm's workers with re- spect to their exercise of rights statutorily guaranteed by soliciting them to sign a formal decertification peti- tion; by promising them economic benefits to encour- age their abandonment of Complainant Union herein; by declaring that their continued union membership, or support for that organization, would be futile; and by threatening a particular worker with discharge or removal from consideration for a possible promotion should he testify in connection with this prospective Board proceeding? 2. Did Respondent's president and owner refuse to bargain with Complainant Union herein by participat- ing in formal collective-bargaining negotiations in bad faith throughout, with no intention of reaching a con- tractual consensus, and by bargaining directly with Respondent's workers? With respect to these several questions, General Counsel's representative currently seeks affirmative determinations. Respondent's counsel, however, notes general denials, and requests the complaint's dismissal. B. Facts 1. Background Throughout the calendar year 1977 period with which this case is concerned Respondent maintained a Santa Clara, California, machine shop, where it manufactures precision machine parts. Late in 1974, Respondent's predecessor, Donald Finch, had negotiated a collective-bargaining contract with Com- plainant Union herein with a March 31, 1977, termination date. That contract covered the machine shop's production and maintenance workers. 394 D & H MANUFACTURING CO. During October 1975, however. Richard Wills, then a longtime member of Finch's machine shop crew, had pur- chased the firm; since his purchase, Wills has functioned as Respondent's president. Concurrently with his purchase of Finch's business, Wills had freely declared his willingness to comply with the terms and conditions of his predecessor's then-current 1974-1977 contract with Com- plainant Union herein. Nevertheless, shortly following his purchase's consummation, so I find, Respondent's presi- dent had further, told John DeCarli, Complainant Union's business representative responsible for servicing Respon- dent's current contract, that when their agreement termi- nated he [Wills] was "going to get the Union out of there" forthwith. See Dust-Tex Service, Inc., 214 NLRB 398 (1974), in this connection. While a witness, President Wills proffered no denial with regard to DeCarli's testimony, specifically in this connec- tion. Though his declaration of purpose, clearly, preceded the 6-month statute of limitations defined in the Act's Sec- tion 10(b), Wills' tacitly conceded statement, within my view, persuasively suggests his state of mind when Respon- dent's renewed contract negotiations with Complainant Union, with which we will subsequently be concerned, be- gan. During their contract's last 12-month period, somewhere between 10 and 13 production and maintenance workers in Respondent's machine shop had been, so I find, contractu- ally covered. 2. Relevant developments summarized During Janaury 1977, James Vice, then a machinist in Respondent's hire, circulated a document-strictly within the firm's shop-whereby Respondent's workers could, through their signatures, disclaim any further interest with respect to collective-bargaining representation. Shortly thereafter, on January 27, this Board's San Francisco Re- gional Office received and docketed a formal "decertifica- tion" petition which Vice's fellow worker, James Wood- mansee, had signed. The circumstances which had generated Woodmansee's decision to sign the formal peti- tion will be detailed subsequently within this Decision. Coincidentally, the next day Business Representative De- Carli sent Respondent a letter wherein he requested the commencement of contract negotiations, looking toward some new collective-bargaining consensus. With this letter, so I find, DeCarli forwarded a copy of Complainant Union's proposed contractual changes. Though requested by Complainant Union's business representative to suggest dates for their future negotiations, President Wills provid- ed DeCarli with no response. Negotiations, therefore, nev- er commenced; the parties, I find, were waiting for a pro- spective representation vote, scheduled in connection with Woodmansee's decertification petition. On April I, this Board's Regional Office did conduct a representation vote for Respondent's production and maintenance workers. Ten votes were cast for continued Union representation. No votes were cast against such rep- resentation; one challenged ballot, clearly not determina- tive, was recorded. When queried with respect to President Wills' reaction, several of General Counsel's witnesses proffered testimony regarding statements, chargeable to Respondent's presi- dent, which generally reflected his disappointment and frustration, coupled with statements regarding his declared purpose to deny Complainant Union's representative sta- tus and thereby preclude their contractual consensus. Gen- eral Counsel's record presentation, with respect thereto, will be discussed subsequently within this Decision. On April II, Complainant Union received the Regional Office's formal certification, confirming its right to func- tion as the exclusive collective-bargaining representative for Respondent's production and maintenance workers. Shortly thereafter, Complainant Union's business repre- sentative requested a Federal conciliator's help with re- spect to arranging a contract negotiating session. Pursuant to Business Representative DeCarli's request, such a ses- sion was arranged; on April 18th, Respondent's president, together with the proprietors of three more so-called inde- pendent machine shops doing business within the San Jose, California. area, conferred with Complainant Union's rep- resentatives. The Federal conciliator, who had "arranged" their meeting, was likewise present. The machine shop pro- prietors, with Irving Malkin, one of their number function- ing as their spokesman-presented contract proposals which were discussed generally. Inter alia, Respondent's president declared, so the record shows, that his contract proposals, when presented, would substantially parallel Malkin's proposal, though he would further seek a contrac- tual "open shop" provision. Substantive discussions with regard to particular proposals, however, were reserved for subsequent bargaining sessions. On May 5th, consistent with the Federal conciliator's suggestion, Complainant Union's business representatives met again with Respon- dent's president, plus his three fellow machine shop propri- etors. Irving Malkin again spoke for all four firms. His contract proposals, previously presented, were discussed in detail. While a witness, President Wills contended that during this session he had personally presented Complainant Union's representatives with a written contract proposal, which, however, DeCarli had summarily rejected. Severa! record conflicts with respect to Wills' purported presenta- tion and Complainant Union's purported response will be considered subsequently within this Decision. With respect to several matters, so the record shows, Respondent's presi- dent proffered comments and suggestions which generally reflected some deviation from Malkin's contract proposals. No consensual agreements were reached, however. Finally, following a separate caucus with the four machine shop proprietors present, the Federal conciliator declared that his services would no longer be required. Complainant Union's representatives were notified that Respondent and his fellow proprietors would propose "agreements" basical- ly similar; these would be submitted to Complainant Union's negotiators separately within 2 weeks. Upon this note their May 5 bargaining session concluded. Several weeks thereafter, in a letter dated June 1, Busi- ness Representative DeCarli finally received Respondent's May 27 written contract proposal. Thereafter, pursuant to prearrangement, DeCarli, together with a second business 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, Huckaby, conferred directly with President Wills on June 20 within Respondent's premises. Several matters dealt with in Respondent's May 27 contract pro- posal were discussed. This conference, however, concluded with a comment by Business Representative DeCarli that he did not believe Respondent's president was bargaining in good faith. Wills protested, conceding that he consid- ered himself required to bargain-but only for 12 months-following Complainant Union's certification. On June 24, Respondent's president sent Complainant Union some proposed "amendments" modifying his firm's May 27 proposals. These were concerned, so the record shows, with Respondent's position relative to Complainant Union's health and welfare and pension proposals. Following several telephone conversations, DeCarli and Respondent's president met for their fourth contractual ne- gotiating session on June 6, this time within the San Jose, California, office of Respondent's counsel. DeCarli, to- gether with a second business representative, functioned as Complainant Union's spokesman; President Wills, togeth- er with Phillip Neilson, then associated with Respondent's retained counsel, represented the firm. Respondent's previ- ously submitted May 27th contract proposal and June 24th modifications were discussed. During their conference, Re- spondent's president, General Counsel contends, suggested a further modification with respect to his May 27 proposal, dealing with their prospective contract's duration; Com- plainant Union's business representative commented, so I find, that President Wills should present his contract pro- posals in written form. No consensual agreements were reached. Directly following their July 6 conference's conclusion, Complainant Union's business representatives determined that Board charges challenging Respondent's purported re- fusal to bargain in good faith should be filed. On July 7, accordingly, such charges were docketed with this Board's Regional Office; no further contract negotiations between Complaintant Union's representatives and Respondent's president have been conducted since the filing of Com- plainant Union's charges. On August 2, Business Representative DeCarli did noti- fy Respondent's president, by letter, that despite Com- plainant Union's pending charges he was "still willing to sit down . . . in the hopes of reaching a peaceful settlement" with respect to their contractual agreement. Complainaint Union's business representative, therefore, suggested a fur- ther bargaining session. Through further correspondence and telephone conversations, DeCarli and Wills did reach "mutual agreement" regarding a further negotiating ses- sion, set for August 31 within the San Jose office of Re- spondent's counsel. Shortly following their consensus, however, Complainant Union's business representative cancelled this scheduled conference. While a witness, De- Carli reported his conferences with various union officials, following which a decision had been reached that some Board determination should be sought with respect to whether Respondent was or was not bargaining in good faith and "whether (Complainant Union should) sit down and negotiate" further. In the meantime, however, some several weeks after Complainant Union's July 7 decision to file Board charges, employee James Vice had commented during a casual af- ter-hours conversation with Respondent's president that he might eventually be required to "go to court" and provide testimony supportive of Complainant Union's charges. When this conversation took place, Vice held a rank-and- file machinist's position. Subsequently, he left Respon- dent's employ for a brief period, voluntarily. When rehired, Vice was designated Respondent's foreman. At the time this case was heard, he concededly held a supervisory posi- tion. Respondent's president, Vice testified, thereupon, told him, that testifying with respect to Complainant Union's charges might "cost" him his position. When queried with respect to what that statement meant, President Wills de- clared that he [Wills] "would not feel the same" with re- gard to Vice's worth. Finally, when Vice declared that Re- spondent's other workers, should they be summoned to testify, would probably testify truthfully, Wills commented that such workers could possibly "bend the truth" when testifying. On August 31, General Counsel's complaint herein was signed and served. Contract negotiations between the par- ties have not thus far been resumed. 3. Discussion a. Preliminary statement Since the record herein reflects several testimonial con- flicts, particularly with regard to statements made and po- sitions taken by Complainant Union's business representa- tive and Respondent's president during the contract negotiations previously noted, some credibility determina- tions with respect thereto will clearly be required. In that connection certain preliminary comments should be made. My determinations set forth herein, particularly with re- gard to President Wills' purported statements and course of conduct, derive primarily from my courtroom observa- tions concerning the demeanor of General Counsel's and Respondent's several witnesses. Cf. Maremont Corporation, 229 NLRB 746, fn. I (1977). I have, however, considered the complete record. See Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074 (9th Cir. 1977). In that connection I have, with respect to both General Counsel's and Re- spondent's witnesses, considered whether their testimony reflected so-called internal consistency, whether their prof- fered recollections were or were not buttressed with colla- teral record support, and whether their recitals could rea- sonably be considered consistent with the natural logic of probability. Further, I have noted, inter alia, that General Counsel's four current "employee" witnesses were, when they testi- fied, still in Respondent's hire. Several provided significant testimony-reluctantly and with manifest discomfort- which, reasonably construed, would raise questions with regard to Respondent's prospective defensive presentation. This Board has, frequently, considered the testimony of workers still in some respondent firm's hire, proffered un- der such circumstances, worthy of special credence. Shop- Rite Supermarket, Inc. 231 NLRB 500, fn. 22 (1977), citing Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961); cf. Hornell Nursing and Health Related Facility, 221 NLRB 396 D & H MANUFACTURING CO. 123 (1975). With respect to significant portions of General Counsel's presentation, likewise, I have noted President Wills' sometimes shifting, sometimes self-serving, and sometimes self-contradictory testimony, marked by fre- quent failuies to proffer either specific denials, qualified recapitulations, or possibly exculpatory details. Cf. Locke Insulators, Inc., 218 NLRB 653, 656 (1975). Mindful of these considerations, I find Wills' testimony herein, save for various proffered recollections which have been credi- bly corroborated or permitted to stand without denial, more worthy of rejection, by and large, than of credence. Further, I have proceeded with due regard for relevant judicial pronouncements wherein the trier of fact's role stands defined. See, particularly, Universal Camera Corpo- ration v. N.L.R.B., 340 U.S. 474, 496 (1950); N.L.R.B. v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962); and N.LR.B. v. J. P. Stevens and Co., 464 F.2d 1326, 1328 (2d Cir. 1973), in this connection. Thus, with respect to Respondent's president, particularly, I note merely that his proffered recollections have been rejected, first, wherever I have found conflicts reflected therein with divergent testi- mony provided by more credible witnesses, and second, whenever I have found such testimony, standing alone, in- herently unworthy of belief. Such testimony, though per- haps not set forth with particulity herein, has been, never- theless, reviewed and considered; no portions of the record have been neglected or disregarded. b. Interference, restraint, and coercion (I) Before Complainant Union's certification Previously within this decision, Business Representative DeCarli's credible, never-denied testimony with respect to President Wills' October 1975 background declaration that he was "going to get the Union out" when their contract reached its termination date has been noted. During January 1977, shortly before the designated contract's scheduled March 31 termination, employee James Vice circulated a letter-sized document throughout Respondent's shop requesting signatures thereon from fel- low workers who no longer desired union representation. Carrying this "showing of interest" document, subscribed by some never-specified number of Respondent's machin- ists, Vice subsequently visited this Board's Regional Office; there, the record suggests, he signed a prepared "RD" peti- tion form. When notified, however, that because he was then functioning as Respondent's de facto machinist lead- man he might not be qualified to initiate such Board pro- ceedings, calculated to bring about Complainant Union's decertification, Vice left the Regional Office without filing his completely prepared petition form. Thereafter, he conferred, so I find, with Respondent's president. With Vice present, Wills then requested employ- ee George Norris to sign this Board's formal RD petition form; Norris demurred. Shortly thereafter, however, em- ployee James Woodmansee, whose cooperation Respon- dent's president had personally requested, did sign the peti- tion form pursuant to Wills' request. The record herein will, within my view, support a further conclusion, which I draw, that someone in Respondent's office thereupon had removed Vice's typewritten name and address from the pe- tition form with correction fluid, replacing them with Woodmansee's name, address, and telephone number. Woodmansee, having signed the form, gave it back to Re- spondent's president. Woodmansee's testimony warrants a determination, which I make, that he never saw the form thereafter. On Friday, January 27, 1977, the designated pe- tition (Case 20-RD-1259) was formally docketed. Thereafter, during some casual coffeebreak conversa- tions with Respondent's workmen, the firm's president de- clared, so I find, that he "wanted out" so far as Complain- ant Union was concerned. Further, during one such conversation-never precisely dated but presumably be- tween January 27 and April I, when the Regional Office's ballot, previously mentioned herein, was conducted-Wills commented favorably, so I find, regarding a possible profit-sharing program for Respondent's workers, calculat- ed to replace Complainant Union's contractually mandat- ed pension plan. Credible testimony which several of Gen- eral Counsel's witnesses proffered warrants a determination, within my view, that Respondent's presi- dent commented either that a profit-sharing program would be "nice to have" for Respondent's workers or that he would "like to start" such a program, which would re- place Complainant Union's pension plan. Previously within this decision, reference has been made to Complainant Union's prior January 28 contract propos- als, submitted to Respondent herein by certified mail. Inter alia, Complainant Union's January submission had com- passed proposals for several "improved" pension benefits; these had been coupled with suggested contract language whereby signatory firms would be committed to make whatever contributions might be required, calculated to cover "increased" pension and medical benefits, during their proposed contract's term. Respondent's management representative, so I find, had received these initial contract proposals in due course. And throughout the period with which this case is concerned, subsequent to their January 31 receipt, Respondent's president had presumably been cognizant with regard to their substance. On April 1, pursuant to stipulation, this Board's Region- al Office conducted a representation election for Respon dent's production and maintenance workers. The ballots were tallied directly thereafter in President Wills' office. Wills, Business Representative DeCarli, and two more union representatives, plus petitioner James Woodmansee, inter alia, were present. The ballots, when tallied, showed 10 votes for continued union representation and no votes contra, with a single undeterminative challenged ballot. The Regional Office's Certification of Representative, sub- sequently issued, shows that this representation vote had been conducted on two petitions: Woodmansee's decertifi- cation petition, previously noted, plus a petition, docketed as Case 20-RM-2085, which D & H Manufacturing Com- pany, Respondent herein, had filed. The record is silent regarding the circumstances which had persuaded Respon- dent's president to file, and the Regional Office to process, the firm's formal "RM" petition. Directly following the Regional Office representative's ballot tally report, Presi- dent Wills candidly declared, so DeCarli's testimony-- which Woodmansee substantially corroborated-shows: 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Now we are in trouble. I have no intentions of signing a Union agreement. I have already made proposals to guys out in the shop. Now I will have to get together with Irv Malkin [likewise a contractually "indepen- dent" machine shop proprietor] and give you the same proposal. You can take the people out on strike and then I can hire other employees and go nonunion. Within a few minutes thereafter, Respondent's president, so I find, likewise told his firm's assembled workers, "Well, we blew it." He declared, bluntly, that his feelings were hurt; Respondent's employees were then sent home. While a witness, President Wills proffered no denial with respect to either DeCarli's or Woodmansee's testimony. (2) After Complainant Union's certification On April II, this Board's Regional Director certified Complainant Union's right to function as the exclusive rep- resentative of Respondent's employees within the bargain- ing unit previously described herein. On various occasions thereafter, during casual "coffee- break" conversations, so I find, Respondent's president concededly discussed several possible "financial benefits" which Respondent might grant directly with his firm's ma- chinists. With respect to these discussions, General Coun- sel's witnesses have proffered credible testimony, with Re- spondent's machinist witness, Finn Runge, providing partial corroboration, sufficient to warrant determinations: First, that shortly after Complainant Union's designa- tion as their collective-bargaining representative the firm's workers were told by President Wills that hourly rate raises for them might be possible. Testifying with patent reluc- tance, employee Vice recalled Wills' statement that he "might give" or "wouldn't mind giving" everyone 50-cent raises; employee Norris recalled a declaration that 25-cent raises or more "would be available" for Respondent's em- ployees; employee Chupp reported a comment, chargeable to Wills, that Respondent's employees deserved raises and that they "should have" 25-cent hourly rate increases. Summoned as Respondent's witness, Runge recalled Wills' statement, "I am going to give you guys a 25-cent raise," which had been proffered without qualification. Shortly thereafter, however, Respondent's president retracted his presumptive commitments; he reported that he could not grant such previously "promised" or "deserved" raises, since Complainant Union would protest them. Second, that subsequently, during his casual "coffee- break" conversations with Respondent's machinists, Presi- dent Wills concededly discussed various fringe benefits which Respondent might conceivably provide should the firm's workers forswear union representation. Specifically, credible testimony proffered by employees Vice, Norris, and Chupp, without contradiction, will support conclu- sions: 1. That Respondent's president disclosed his will- ingness to provide a profit-sharing plan wherein his listeners could participate. 2. That President Wills discussed possible arrange- ments whereby Respondent's workers might be ena- bled to establish and maintain Individual Retirement Accounts separately or might, alternatively, request that sums calculated to match Respondent's prior monthly pension contributions on their behalf ($62.50) be made part of their paychecks, without re- striction, substituting for their participation in Com- plainant Union's pension plan. Employee Chupp, with his memory refreshed following ref- erences to his previously signed pretrial statement, recalled that President Wills had characterized profit-sharing and separate IRA plans as both "different . . . completely" and "better" than Complainant Union's pension. Third, that following the commencement of his contract talks with Complaint Union's representatives Respondent's president, during his shop conversations with various workers, had declared Complainant Union's proposed con- tribution rate for medical coverage was "too high," while coupling his statem nt of belief, noted, with a further dec- laration that Respondent would pay no more than "ten percent [of whatever additional contribution sums might be required] over $100," with the firm's covered workers providing the balance. In this connection, further, General Counsel's several witnesses testified credibly that President Wills told them once, at least, that he would not sign Complainant Union's contract but would fight it, no matter what it cost. The record likewise warrants a determination, which I make, that Respondent's president declared, presumably more than a month following his workers' April I representation vote, that he could "stall" contract negotiations with Com- plainant Union for a year. While a witness herein, Respondent's president never de- nied that these subjects had been discussed with his firm's machinists during various casual coffeebreak conversa- tions. Concededly, he recalled telling Respondent's work- ers '"just in general conversation" that Look, as long as you are represented by a Union, we cannot discuss these things, but if you are not repre- sented by a Union, the porfit-sharing plan is available, there is an IRA plan that could be available, there is a pension plan that could be available. Whatever people would like, that is what is available. Wills did contend that no specific plans had been pro- posed. With matters in this posture, however, the record, within my view, supports determinations, which I make, that President Wills, during several conversation with Re- spondent's workers, had clearly manifested his reluctance to sign any contract with Complainant Union herein; that he had declared he could "stall" their contract negotiations for a full year; and that within a context compassing such statements and declarations of purpose he had presented Respondent's workers with several fringe benefit proposals concededly different from those which Complainant Union was seeking during their negotiations. c. Refusal to bargain (I) Contract negotiations As previously noted, Complainant Union's business rep- resentatives, DeCarli and Huckaby, first conferred with 398 D & H MANUFACTURING CO. President Wills and three more "independent" machine shop proprietors on April 18, pursuant to Federal Concilia- tor Clarence Washington's call. The four shops represented concededly sought no single multiemployer contract; how- ever, one proprietor, Irving Malkin, functioned as their spokesman. Complainant Union's representatives were presented with a "Cost Analysis" document. Malkin stated that machine shop production costs were rising; that Com- plainant Union was not "doing [its] part" with respect to organizing various San Jose machine shops; that all four firms represented were "losing contracts" because "non- union" firms could outbid them; and that Complainant Union should therefore provide them with some "relief' from previously defined area wage rates. During a general discussion which followed, Respondent's president de- clared, so DeCarli's credible, uncontradicted testimony shows: [H]e [Wills] was going to have an open shop. He was, he said, thinking of closing the shop for 90 days and then hiring employees, and then going non-union. He said he was in touch with a lawyer and that the lawyer said he could do it and there wasn't a damn thing we could do about it. .... He said he would never sign a Union contract. He said all he had to do was negotiate for one year with the Union, and he was going to get the Union out, one way or the other. The parties, nevertheless, proceeded to review some con- tract proposals which Malkin, functioning on his own be- half, had previously supplied for Complainant Union's consideration. The machine shop proprietors present, so I find, consensually conveyed their willingness to second Malkin's presentation with regard to their basic contract proposals; Respondent's president, however, reiterated his previously declared "open shop" position. The negotiators then canvassed Malkin's contract proposals generally, with a consensual understanding that "major discussions" with respect thereto would be reserved for their next conference. This April 18 session was finally concluded pursuant to Conciliator Washington's request. On May 5, pursuant to Conciliator Washington's sugges- tion, the negotiators held their second bargaining session. Business Representative DeCarli presented the four ma- chine shop proprietors with a strike settlement agreement which Complainant Union had reached with some local machine shop firms which had previously been struck. While a witness, DeCarli declared that his designated "strike settlement" proposal was proffered to supersede Complainant Union's previous January 28 submission; compassed therein were several proposals which substan- tially modified Complainant Union's prior contract de- mands. Pursuant to Conciliator Washington's suggestion, however, the parties proceeded to consider Malkin's previ- ously presented draft proposals. While the machine shop proprietor's proposal relative to union security was being discussed, Respondent's president, so DeCarli's credible testimony shows, reiterated his contractual "open shop" demand. The business representative's response will be noted hereinafter. With respect to health and welfare benefits, Malkin's March 14 draft proposal, then before the negotiators, was verbally modified; revised, the machine shop proprietor's proposal called for limited monthly contributions, pur- suant to which contracting employers would be committed to pay 10 percent more yearly throughout a 3-year contract term, while their covered workers would be constrained to pick up themselves whatever sums might be required be- yond their employer's limit for health and welfare premium costs. While a witness herein, President Wills conceded his May 5 concurrence with this proposal. In this connection I note, inter alia, that sometime during this period Respon- dent's workers had themselves been told directly that Presi- dent Wills wanted his firm's health and welfare contribu- tion level restricted and Respondent's greater liability for contributions beyond the sums required by his terminated contract limited to 10 percent more yearly. With respect to Complainant Union's pension plan, Malkin was proposing maintenance of the current contri- bution rate, which contractually bound employers were then remitting to Complainant Union's pension trust fund. Further, however, he was suggesting that individual work- ers should be given personal options to decide whether they wished to participate in Complainant Union's pension plan; those who declined such participation should receive directly sums equal to their contractually bound firm's pre- viously required contribution together with their pay- checks. During this portion of their discussion, DeCarli's credible testimony shows, President Wills conceded that he had "already" told Respondent's workers he preferred some "arrangement" whereby they could either generate and maintain individual retirement accounts or have their pension contributions made part of their paycheck, rather than participate in Complainant Union's pension plan. Confronted with Wills' report, Complainant Union's busi- ness representative, so I find, promptly reminded him of Complainant Union's representative status; President Wills was advised, therefore, not to bargain directly with Respondent's workers Other proposed contract changes set forth within Malkin's previously submitted proposal were then discussed. Finally, when the negotiators reached the machine shop proprietor's proposal with regard to their contract's duration, Malkin reiterated his desire for a 3- year contract with no wage increases plotted beyond those negotiated with effective dates coincidental with their contract's inception. According to Complainant Union's business representative, Respondent's president thereupon declared his desire for a I-year contract. DeCarli's testi- mony with regard to their subsequent conversation reads as follows: I told him, "I can't understand why you want it for a one-year agreement when they are offering a three- year agreement with no wage increases whatsoever." He told me, "You know why I want that one-year agreement. It takes one year to get the Union out of there, and there is no way that I want anything other than a one-year agreement. I am going to get that Union out of there. All I have to do is negotiate for one year to be legal." While a witness, President Wills declared, contrariwise. that Malkin's proposal had called for a 3-year term; that Complainant Union's representatives had been similarly 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minded; and that "every shop there" had been negotiating for separate 3-year contracts. Though denying inferentially with this testimony that he (Wills) had flatly demanded a I-year agreement, Respon- dent's president proffered no denials whatsoever calculated to counter the balance of DeCarli's testimonial recapitula- tion, noted. With respect to President Wills' tacit denial proffered to counter DeCarli's testimony that he (Wills) had specifically demanded a single year's contractual commitment, Re- spondent's president, within my view, merits credence. Documentary evidence proffered for the record in Respon- dent's behalf will clearly support determinations, first, that during their May 5 session now under consideration Wills had in his possession some written contract proposals com- passing his call for a 3-year term, and second, that Re- spondent's subsequent May 27 contract proposal, previous- ly noted herein, reflected a reiteration of President Wills' presumptive desire for a 3-year commitment. With respect to Respondent's May 5 draft contract pro- posals, the record herein reveals testimonial conflict. Presi- dent Wills declared that sometime during their session his draft, prepared for submission, had been literally "laid on the table" before Complainant Union's negotiators but that DeCarli had summarily rejected Respondent's prof- fered document when notified that it contained his previ- ously mentioned "open shop" proposal. Complainant Union's business representatives denied, however, that President Wills had presented any specific contract propos- als during the May 5 session now under consideration or that he had placed "any sort of document" before them for consideration. Summoned as Respondent's witness, Irving Malkin recalled merely that Wills had, at some point, pro- duced a folded document, placed it on the table, and con- currently mentioned his proposed open shop provision; that DeCarli had thereupon smilingly declared that wasn't what he wanted to hear; and that Wills had then left his document lying on the table, With matters in their present posture, credibility resolutions dispositive of this record conflict, within my view, cannot reasonably be considered required. Even taken at face value, Respondent's testi- monial presentation, considered in context, would not war- rant a determination, consistent with Respondent's coun- sel's tacit suggestion, that Complainant Union's negotiators were themselves bargaining with closed minds, or that they were not bargaining in good faith toward a contractual consensus. No other conceivable purpose for Respondent's testimonial proffer, in this connection, has been suggested. Upon this record, Business Representative DeCarli's proffered testimonial recollection that Respon- dent's president had linked some specific proposal for a limited I-year contract term with his concurrently declared purpose to "get the Union out" following negotiations for a single year must be rejected. A brief discussion on wage rates followed. Then Concili- ator Washington sought a separate conference with the four machine shop representatives. Following their caucus, with Complainant Union's representatives present. Wash- ington reported merely that he did not consider his further services required; that Respondent's president and his fel- low machine shop proprietors would separately propose basically similar contracts; and that Complainant Union would be supplied with copies within I or 2 weeks. Upon this note their bargaining session concluded. Some time later, Complainant Union's business repre- sentative, noting that Wills had submitted no written con- tract proposals within the 2-week period which followed their May 5 session, so notified the Federal conciliator. Shortly thereafter, DeCarli received a letter dated June I with Respondent's written contract proposals bearing a May 27 date. Pursuant to consensual arrangements con- cluded subsequently, Business Representatives DeCarli and Huckaby conferred with President Wills on June 20 at Respondent's premises. DeCarli requested Respondent's president to explain his proposed open shop provision. At the outset, with respect to their ensuing conversational exchange, Complainant Union's business representative testified credibly and with- out any specific contradiction proffered by Respondent's president that: He [Wills] said he wants that in there and he wants the employees to have the right to belong to the Union or not to belong to the Union. The people who belonged to the Union, I [DeCarlil can negotiate their benefits, health and welfare, and pension. The people who did not want to belong to the Union would negotiate di- rectly with him. I told him that he ought to refer him- self back to the election which was just held in April where everybody out in the shop wanted the Union. I said that it was ten to nothing and everybody wanted to have a union, and "Now you want an open shop." He said, "There was a lot of lies told to the people, and now they had a change of mind." I told him, I said "How do you know they had a change of mind? You cannot be negotiating with the people. You have to be negotiating with the Union." ... He said, "I am negotiating, and I have been negotiating. All I have to do is negotiate for one year and then I can get the Union out of there, and I am doing just that." Respondent's president, while a witness, contended sub- stantially that he, speaking on Respondent's behalf, and DeCarli, speaking on Complainant Union's behalf, had re- iterated their divergent, firmly held positions with regard to Respondent's open shop, health and welfare, and pension plan proposals; he conceded that there had been no move- ment toward consensus. President Wills, however, prof- fered no denials with respect to DeCarli's detailed testi- monial recapitulation, previously noted; the business representative's testimony, within my view, merits cre- dence. Further, during their June 20 conference, DeCarli quer- ied Respondent's president with respect to whether he had given any raises during the past year. Wills replied nega- tively, conceding that he had told Respondent's workers "that it was the Union's fault" they were getting no raises. Though he could not recall President Wills' precise lan- guage, Respondent's witness employee Runge likewise re- called that Respondent's president had substantially de- clared he could give no raises "because of the Union". At some point during their discussion, Wills asked DeCarli what would happen should Respondent discontinue previ- 400 D & H MANUFACTURING CO. ously mandated health and welfare and pension trust fund contributions. Complainant Union's business representa- tive declared, so I find, that he did not believe Respondent could discontinue current employee fringe benefits follow- ing a representation election pursuant to which Complain- ant Union had been certified; he suggested, however, that Wills check with trust fund representatives before he did anything. DeCarli further suggested, so his credible testi- mony shows, that Respondent's president had "better" consult a lawyer. Wills declared, however, that he had "been in contact" with counsel. He made a telephone call forthwith, following which he reported he had been told that Respondent's counsel was on vacation for 3 weeks and could not be reached. Inter alia, Respondent's president conceded, so I find, that his May 27 proposal, which the negotiators were then discussing, remained "basically the same" as Malkin's March 14 proposal save for his suggested open shop provi- sion. Consistent with Malkin's proposal, previously noted. Wills' May 27 submission still contained a 3-year duration clause. When their June 20 session concluded, DeCarli re- newed his suggestion to Respondent's president, so his credible testimony shows, that he (Wills) should contact a lawyer; he declared that Respondent's president was mere- ly "surface bargaining." Wills protested that he was negoti- ating in good faith and that he would be required to do so for one year. Upon that note the parties "dissolved" their bargaining session. (2) Respondent's modified proposals On June 24, in a letter directed to Business Representa- tive DeCarli, Respondent's president proposed two amend- ments with regard to his May 27 proposals. Specifically, with reference to Complainant Union's pension plan, Wills had previously proposed optional coverage for Respon- dent's workers with Respondent's contribution rate for covered workers limited to $62.50 monthly: those workers who rejected coverage were to receive the sum designated directly, with their regular pay. Within his June 24 letter, however, Respondent withdrew this proposal; Wills sug- gested that Complainant Union's pension plan should be completely discontinued, with covered workers receiving a 38-cent hourly rate raise, replacing his firm's pension fund contribution. Regarding "health and welfare" premium costs, Respondent's president had previously declared his willingness to meet "additional" contribution require- ments, limited to 10 percent yearly, beyond his firm's cur- rently mandated contribution rate; on June 24, President Wills' proposal reflected his determination that Respon- dent should merely be committed to continue its current monthly contribution rate, whereby he would not be re- quired to meet foreseeably greater "premium" costs. (3) The July 6 session Following several telephone conversations, during which Complainant Union's business representative suggested, inter alia, that President Wills have counsel present when they next conferred, the parties set their next bargaining session for Wednesday, July 6, in the law offices main- tained by Respondent's counsel. Counselor Anastasi, how- ever, could not be present. As previously noted, Respon- dent's counsel was then on vacation. While a witness, De- Carli conceded that he had nevertheless requested a bargaining session, though cognizant that Respondent's counsel would not be there, because any conference defer- ral pending Counselor Anastasi's return would have, with- in his view, delayed negotiations unduly. Respondent's president. therefore, had, some 7 days be- fore July 6, asked Phillip Neilson. Counselor Anastasi's junior associate, to attend with him the conference sched- uled for that designated date. While a witness, Respondent's president declared that so far as he knew. Neilson had never previously been briefed regarding the parties' prior negotiating sessions, through- out wshich he, DeCarli, and Huckabh had been present. Nevertheless, so Wills testified, he did not provide Neilson with any copies of Respondent's previously submitted con- tract proposals before the scheduled session. Further, Re- spondent's president conceded that he had made no effort to confer with Neilson so that he could report the current status of his negotiations save for a brief consultation some 30 minutes before the scheduled commencement of their July 6 session. I so find. Complainant Union's representa- tives. DeCarli and Huckaby. were both present. Before their substantive discussions with regard to contract terms began, DeCarli renewed his charge that Wills was seeming- ly pursuing "surface bargaining" merely; Complainant Union's business representative, so I find. requested "seri- ous" discussions. Respondent's president replied, so De- Carli's credible, undenied testimony shows: He [Wills] says that he has attended all the scheduled meetings, has been to every meeting, and has negotiat- ed in good faith, and he only had to do that for one year. The negotiators then proceeded to discuss certain substan- tive contract terms. Their conversation, however, covered comparatively few questions; with respect thereto, the rec- ord shows, no consensus was reached. When queried with regard to whether Respondent's president had, during their July 6 discussion, repeatedly or- ally his suggestion, purportedly proffered previously, that their prospective contract should be negotiated for a single year, rather than for a 3-year term, DeCarli conceded a failure of positive recollection. Business Representative Huckaby, summoned in rebuttal, testified without qualifi- cation, however, that Wills had indeed declared that his May 27 3-year contract term proposal was "off the table" and that he was currently suggesting a mere 1-year con- tract. While a witness previously. Wills had categorically denied proffering any such proposal. Within his brief Gen- eral Counsel suggests that DeCarli's tentative recollections in this connection, buttressed with Huckaby's positive cor- roboration, merit credence, primarily because Respon- dent's counsel "chose not to have Neilson corroborate Wills' denial" regarding his purported suggestion. On this point, however, I have not been persuaded. Considered in totality, the record suggests merely that DeCarli and Huc- kaby may subjectively have considered Wills' concededly reiterated declarations that he considered himself required 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain merely for I year tantamount to proposals for a limited single-year contract. Inter alia, I find DeCarli had protested Respondent's newly proffered proposal that his firm's contribution to Complainant Union's pension plan be completely cut off; Wills had declared that he had com- municated with trust fund representatives and had been told his participation could be discontinued. Complainant Union's business representative had then asked why Re- spondent had withdrawn its previously declared willing- ness to go for a limited (10 percent) increase in currently payable health and welfare premium costs. The business representative's current testimonial recapitulation of Presi- dent Wills' reply, with respect to which Respondent's presi- dent has herein proffered no specific denial, reads as fol- lows: He said that since then he went out and talked to the employees out in the shop, and they knew and felt that it was a good plan and they wouldn't mind paying their share of the plan. I cautioned him again, that he had no business negotiating contracts with employees, that he deal directly with the Union. Complainant Union's business representative, so President Wills' testimony shows, chided him further for changing his proposals; Respondent's president conceded that he had done so. The negotiators concluded their July 6 session with no consensus related to any substantive contractual provision reached. (4) Negotiations suspended Shortly, following the conclusion of their July 6 confer- ence with Respondent's president. noted, DeCarli and Huckaby conferred; they determined that Complainant Union should file Board charges with respect to Respon- dent's course of conduct. On July 7, the charges which initiated the present case were filed, therefore, with this Board's San Francisco Regional Office. Despite this, Complainant Union's business representa- tive notified Respondent's president, letter dated August 2, that he was "still willing to sit down" with a hope that some "peaceful settlement" calculated to resolve their dis- agreements could be reached. Following further correspon- dence, Wills and DeCarli agreed to meet on August 31, when Respondent's counsel could likewise be present. Sub- sequently, however, Business Representative DeCarli can- celed this scheduled bargaining session. When queried with respect to why he had done so, DeCarli declared that: (We] figured that we should let the Board decide whether we were going to sit down and negotiate any- more, because he [Wills] was not bargaining in good faith, as far as we were concerned. On August 31, General Counsel's complaint herein was signed and served. No further direct communications, be- tween Complainant Union and Respondent's president have been pursued, and no negotiations have been sched- uled or taken place, since that date. c. Subsequent developments In the meantime, however, presumably some 3 or 4 weeks after the filing of Complainant Union's July 7 charges but before General Counsel's Complaint herein had been drafted and served, President Wills and employee Vice had, so the record shows, discussed the possibility that Vice might have to testify in support of Complainant Union's charges. Vice's testimony regarding their conversa- tion-proffered with considerably reluctance and mingled with protestations that his witness-chair memory could not reasonably be considered perfect-reads as follows: [We] were in the back of the shop and it was after work, and we were working on the big machine, if I recall, Rich went out, and it was hot, and bought a couple of six-packs for the maintenance man and my- self, and we were kind of sitting around talking after the maintenance man had left. I was the one that led the conversation. I told Rich, if I remember correctly, I said, "Well, it looks like we will go to court," or something to that effect.... I felt that I was real strong with the Union, and I felt that that was the thing I should do; I felt it was right for me to do at the time. So anyway, I kind of led him into it, and I said- he said something to the effect that it could cost a job, or something, my job. I said, "How do you mean?" He said, "I wouldn't feel the same about you after you did this," because he was looking at me as a foreman at the time. .... He said, "I won't feel the same about you," meaning, either I am for the Union or I am for Richard Wills, D & H Manufacturing ... He did not say that it would cost me my job, okay? I think, as I remember, he put it to me something like, "It could cost you your job," or "it might cost you your job." He did not say "It is going to cost you your job... ." Q. And he also made a statement to the effect that if not you, then other employees could possibly bend the truth when they testified concerning the unfair la- bor practice charge? A. I think something like that came up, yes. When Respondent's counsel protested General Counsel's last question, contending that words were being put in the witness' mouth, Vice was shown a pretrial statement dated August 17, 1977, which he had signed; he conceded that the statement represented his past recollection recorded. Therein, Vice had recalled his conversation with Respon- dent's president somewhat differently, as follows: I said I would probably get subpoenaed in court about the charges, and I said I will tell the truth. He said it would probably cost me my job. I said, "What do you mean, cost me my job?" He said, "I will not feel the same about you." I said, "Others will have to tell the truth." He said, "lt depends. They, they could bend the truth." That ended the conversation. It lasted 10 minutes. 402 D & H MANUFACTURING CO. President Wills, when summoned subsequently as Respon- dent's witness, did recall a conversation with Vice which had taken place after Respondent's regular shift hours. His recollection, specifically with regard to their conversation's situational context, matched Vice's, though he dated their talk "sometime toward the end of the year" rather than several "weeks" before Vice's August 17 pretrial statement. However, according to Wills, Vice, whom Respondent's president was then "grooming" for a shop foreman's posi- tion, had asked when he would receive that promised post. Their conversation, so Respondent's president testified, had then proceeded as follows: I said, "Hey, Jim, we are in Union negotiations. We have to know which side of the fence you are on. I have to know whether you are for management or whether you are for the Union." This, basically, was the extent of that conversation. He did say, "I may have to go and testify at a hearing." I said, "Hey, you are going to have to do what you are going to have to do, but if you want the foreman's job, I have to know where you are at. You have to be working for me." When queried further, by General Counsel's representa- tive, Wills reiterated his testimony that Vice had merely been told, "If you are going to run my business for me, I have got to know which side of the fence you are on." Respondent's president conceded that General Counsel's representative could, presumably, read something more be- tween the lines, but that Vice and he [Wills] had both known what he really meant, namely that whether or not Vice would be designated Respondent's foreman depended on "which side of the fence" he was on. President Wills, how- ever, did not specifically deny that Vice had been told his Board testimony could cost him his position or that he (Wills) had declared Respondent's other workers could "bend the truth" should they be required to testify. With matters in this posture, General Counsel's repre- sentative suggests within his brief that wherever the pres- ently proffered recollections of Wills and Foreman Vice differ with respect to this post-charge conversation the latter's substantially consistent witness-chair and pretrial versions should be credited. I concur. Compare Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978). Currently a fore- man in Respondent's hire, Vice manifested, while a wit- ness, considerable reluctance when queried with respect to relevant developments which might conceivably prejudice Respondent's current position. With respect to several mat- ters, he professed failures of precise recollection. Thus, his testimonial recapitulation with regard to this post-charge conversation, considered in conjunction with his signed statement's substantial supplementation thereof as past recollection recorded, carries particularly persuasive thrust. By way of contrast, President Wills' witness-chair recitals generally, within my view, reflect a clearly self-serving dis- position, pursuant to which subconcious rationalizations derived from post hoc retrospection may well have colored memory. Within my view, Wills' testimony, wherever it re- flects specific or tacit denials with respect to Vice's prof- fered recollection, merits rejection rather than credence. C. Discussion and Conclusions I. Interference, restraint, and coercion Within his complaint General Counsel charges that Re- spondent's president-before his firm's April 1 representa- tion vote and thereafter, both before his contract negotia- tions with Complainant Union commenced and while they were in progress-did interfere with, restrain, and coerce Respondent's machinists with respect to their exercise of rights statutorily guaranteed. With matters in their present posture, General Counsel's charges, within my view, may legitimately be considered fully sustained. First: Credible testimony proffered for the record-with manifest reluctance-through workers still in Respondent's hire reveals that sometime during January 1977 President Wills solicited employees George Norris and James Wood- mansee, successively, to sign a formal "decertification" pe- tition, supported by a putative "showing of interest" letter- size signature sheet which employee James Vice had previ- ously circulated. Wills' participatory role clearly transgressed permissible limits. Concerned employers may lawfully respond to questions propounded by their workers regarding a labor organization's possible decertification, provided they do so within a situational context free of coercive conduct. KONO-TV-Mission Telecasting Corpora- tion, 163 NLRB 1005, 1006 (1974). They violate the law, however, when they subsequently involve themselves per- sonally in furthering employee conduct so purposed. Placke Toyota, Inc., 215 NLRB 395 (1974); see cases at footnote 7, cited therein. Specifically, managerial "solicita- tion, support or assistance" with respect to the "initiation. signing or filing" of formal decertification petitions will be considered interference with statutorily protected rights. Herein, Respondent's president, so I have found, person- ally solicited two workmen to sign a formal decertification petition so that the completed document could be submit- ted for Regional Office consideration. Such conduct merits Board proscription. Compare Shenango Steel Buildings. Inc., 231 NLRB 586 (1977), in this connection. Though Respondent's president, so far as the record shows. had neither initiated nor circulated Vice's previously prepared "showing of interest" signature sheet, that fact standing alone provides no defense for Respondent's manifestly proscribable interference with Board decertification proce- dures. Second: President Wills' several discussions with Re- spondent's machinists, both before and after their April I vote for Union representation, with respect to raises, possi- ble profit-sharing plans, and several fringe benefits consid- ered possible replacements for Complainant Union's pen- sion plan likewise reflect 8(a)(1) violations. Further, these discussions, since they concerned suggest- ed raises and possible fringe benefits proffered directlyv for the consideration of Respondent's workers in derogation of their bargaining representative, clearly constituted 8(a)(5) violations. Their presumptive relevance and probative sig- nificance with respect to this Board's consideration of Re- spondent's purported "good faith" collective-bargaining posture will be discussed further within this decision. When Respondent's president commented, whether deliberately 403 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or casually, that his subordinates "deserved" or "should have" designated raises; that he "might give" or "wouldn't mind giving" such raises; that designated raises "would be available" should his listeners forgo union representation; or, consistent with Runge's testimony, that he was "going to give" Respondent's machinists $.25 raises, his state- ments clearly reflected his desire to bypass Complainant Union, without regard for that organization's reconfirmed status as his machinist crew's statutory bargaining repre- sentative. Prospective wage increases discussed directly with con- cerned employees while wage negotiations currently in progress with their designated representatives remain ten- tative constitute, whether provocatively suggested or spe- cifically promised, statutorily impermissible gambits, clear- ly calculated, in this case, to undermine Complainant Union's support. Compare Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678 (1943); Spriggs Distributing Com- pany, 219 NLRB 1046, 1049-50 (1975), in this connection. And President Wills' belated retraction, when he reported that he could not give Respondent's workers their suggest- ed or promised raises, provided no cure, I find, for the statutory violation flowing from his previous comments or promises. Within his brief General Counsel's representative notes cogently that Wills' purported repudiation with re- spect to possible wage increases came a full week after his first suggestion or promises; further, that repudiation was coupled, so I find, with a comment that Respondent's pres- ident could give no promised raises because of Complain- ant Union's presence. Thereby, necessarily, Respondent's president was blaming Complainant Union for his with- drawal of previous unlawful raise promises. His comments, calculated to cast such blame, particularly when he was communicating directly with concerned workers while his presumptive contract negotiations with their designated representatives were in progress, likewise transgressed per- missible limits. I so find. 'I hird: While a witness, President Wills conceded that he had discussed, with Respondent's machinists, both a possi- ble profit-sharing plan and two substitute "arrangements" whereby they might conceivably replace Complainant Union's contractually defined pension plan. Such discus- sionls, particularly when pursued within situational con- texts comparable with those revealed throughout the pres- ent record, clearl' merit Board proscription. Respondent's president claims, for the record, that these discussions developed within a context of casual coffee- break talk sessions during which those present customarily conversed freely regarding a broad range of subjects. Fur- ther, Wills claimed that his comments merely reflected re- sponses to questions. suggestions, or requests presented by Respondent's machinists. Statements volunteered while re- sponding to solicitation or queries proffered during "ca- sual" nonstructured conversations, however, carry no priv- ilege derived merely from their casual, spontaneous dissemination. Compare Michigan Products, Inc., 236 NLRB 1143, 1146 (1978), in this connection. Consistent with well-settled decisional doctrines, concerned employers have never been considered privileged to suggest "avail- able" benefits directly to employees, clearly in derogation of their designated currently functioning bargaining repre- sentative, or to couple their discussion of possible benefits with statements reasonably calculated to suggest that such benefits might be granted employees contingent upon their relinquishment of union representation. Compare Freedom Dodge, Inc., 236 NLRB 1188 (1978), in this connection. Upon this record Respondent's president may clearly be charged with such nonprivileged promises or statements. Within his brief General Counsel's representative notes co- gently that: In the instant case, and independent of the question of who initiated the profit-sharing or pension plan dis- cussions, it is plain that Respondent, both intended to and used these discussions as a vehicle to undermine employees' support of the Union. I concur. President Wills himself testified that Respon- dent's machinists were told a profit-sharing plan, personal IRA plans, and some substitute for Complainant Union's pension plan could be made "available" should they forgo union representation. Compare Alan L. Horton, Inc., d/b/a Horton's Market, 211 NLRB 991, 998-999 (1974). By such statements Respondent's president was, so I find, clearly trying to wean his firm's machinists away from Complain- ant Union and deal directly with them on matters concern- ing which Respondent was committed to bargain with their designated representative. Thereby Respondent again in- terfered with its employees' Section 7 rights without regard for Section 8(a)(1)'s mandate. Fourth: Consistent with General Counsel's charges set forth in paragraphs Vl(c) and (d) in his complaint herein, I find determinations warranted that Respondent's president "threatened" his firm's machine shop employees through statements calculated to convey the message that their con- tinued union membership or support for Complainant Union herein would be futile. My conclusions with respect to this particular facet of General Counsel's case derive from: 1. Credible testimony, never contradicted, that di- rectly following the Regional Office representative's report regarding the April I representation vote's re- sult President Wills told Complainant Union's repre- sentative, with Employee Petitioner Woodmansee present, that "trouble" would result from Complain- ant Union's victory and that he would not sign a col- lectively bargained contract. 2. Credible testimony, never specifically contradict- ed, that Respondent's president, during casual coffee- break conversations following Complainant Union's ballot victory, told Respondent's machinists that he would not sign a Union contract; that he would fight Complainant Union "no matter how much it costs;" that his legal counsel had told him Complainant Union could be "stalled" prospectively throughout 12 months of negotiations; and that he [Wills] "would not have a union" within his shop. Such statements clearly merit Board proscription as 8(a)(l) violations. See Valley Iron & Steel Co., 224 NLRB 866, 874-875 (1976); Muncy Corporation, 211 NLRB 263, 270-- 271 (1974): R. D. Goss, Inc.. 203 NLRB 1173, 1175(1973), in this connection. 404 D & H MANUFACTURING CO. While a witness. Respondent's president, when confront- ed with leading questions couched in General Counsel's complaint language, denied flatly that he had "threatened" anyone. Upon this record, however, such pro forma denials reflect a se;nantic quibble. In haec verba, President Wills may not have forecast danger or some evil consequence which Respondent's machinists risked; he may not have warned them of personal trouble, punishment, or retribu- tion. Nevertheless, his statements, noted, were clearly cal- culated to discourage employee support for Complainant Union by forecasting the futility of their continued union representation; necessarily, they were likewise reasonably calculated to undermine Complainant Union's representa- tive status. Statements so purposed, whether proffered de- liberately or within some casual conversational context, transgress permissible limits. Fifth: President Wills' comment, proffered shortly after Complainant Union's charge herein was filed, that should Employee Vice provide testimony supportive of Complain- ant Union's claim he "might" suffer adverse consequences likewise, within my view, merits Board stricture. Con- cerned employers may not lawfully put employees under some fear of job reprisals should they testify freely when summoned in Board proceedings. Previously within this decision, I have credited Vice's testimony regarding the general tenor of Wills' comment that truthful witness-chair recitals supportive of Complainant Union's charges would "probably" cost him his job. Within its particular situa- tional context, however, the machine shop proprietor's ref- erence might arguably merit characterization as somewhat cryptic. Wills may indeed have wished to suggest that, should he testify, Vice's machinist position might be forfeit- ed; conceivably, however, Respondent's president may have been suggesting, rather, that should Vice's testimony prove supportive of Complainant Union's position he (Wills) would no longer consider the machinist a viable candidate for promotion. Upon this record, however, no de- termination should be required regarding the precise thrust of President Wills' comment; regardless of whether he was suggesting that Vice's current position or future promo- tional prospects might be considered risked, Wills' state- ments clearly interfered with, restrained, and coerced Vice and Respondent's machinists with respect to their exercise of rights statutorily guaranteed. Compare Wilker Bros. Co., Inc., 236 NLRB 1371, 1376 (1978), in this connection. Threats, warnings, or suggestions that possibly adverse consequences may follow should particular workers pro- vide pretrial statements, or give testimony in connection with Board proceedings, constitute a forbidden interfer- ence with the functional integrity of Board processes. Fed- eral Mogul Division of the Federal Mogul Corporation, 203 NLRB 1008, 1013 (1973); Dollar General Corporation, 189 NLRB 301, 307 (1971); compare Saunders Leasing System, Inc., 204 NLRB 448, 452-453 (1973). Herein, Respondent's president did more than suggest that Vice's current job ten- ure or promotional prospects might be endangered, should his prospective Board testimony reflect his presence on Complainant Union's side of the fence. When Wills further suggested-somewhat elliptically but clearly with studied purpose-that "other" shop workers, should they be sum- moned to testify, could "bend the truth" while testifying, Respondent's president clearly conveyed a message that Vice himself would be well advised to follow a similar course. Some years ago, this Board confirmed, without qualification, Trial Examiner Vose's decisional pronounce- ment: In my judgment it is of utmost importance that pro- spective witnesses in proceedings before the Board be free of all forms of pressure to depart from the truth in their testimony in Board proceedings.... it was [Company President) Turner's obligation in this situa- tion to refrain from making any statement tending to inhibit [workers] from testifying with complete free- dom. See Dollar General Corporation, supra. Wills' statements now under consideration, whether proffered in language consistent with Vice's recollection or his own somewhat equivocal version, were clearly calculated to interfere with, restrain, and coerce Respondent's employees with respect to their exercise of Section 7 rights. I so find 2. Refusal to bargain a. Before formal negotiations President Wills' general course of conduct, both before Respondent's putative collective-bargaining negotiations with Complainant Union began and later-within Respon- dent's machine shop-throughout the 3-month period dur- ing which those negotiations were being pursued, provides the relevant background with reference to which Respon- dent's purportedly displayed "good faith" must, and should, be tested. Respondent's president some 2 years previously, when he purchased the Santa Clara, California, facility with which we are presently concerned, had, concededly, de- clared his willingness to comply with Complainant Union's contract covering that facility's workers, negotiated with his predecessor. Concurrently, however, he had freely and candidly proclaimed his determination to "get the Union out" following that contract's scheduled termination. The record herein-considered in totality-reveals beyond per- adventure of doubt that consistently with his previously declared purpose, President Wills entered into "negotia- tions" with Complainant Union with a definite program calculated to forestall contractual consensus and preclude any possible contract with that organization. Further. Wills' course of conduct, so I find, reflected his dedicated purpose to bring about Complainant Union's statutorily- validated "ouster" from representative status with respect to Respondent's machinists. My conclusions with respect to President Wills' patently negative state of mind in these respects derive from several considerations: First, I note that Respondent, when provided-fortui- tously, so far as the record shows-with Employee Vice's previously prepared "decertification" petition, personally solicited employees Norris and Woodmansee to sign this Board's petition form. He prevailed with respect to Wood- mansee, who did so. Significantly, however, Woodmansee, despite his nominal "petitioner" status, never filed the de- certification petition which he had signed with this Board's DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Office; after signing the document, he surren- dered it, presumably to employee Vice and Respondent's president jointly. The fact that it was subsequently filed, conjoined with a foral "RM" petition. persuasively sug- gests, at the very least, Wills' participatory role therein. Second, I note that Respondent's president, when served shortly thereafter with Complainant Union's January 28 reopening letter, wherein Business Representative DeCarli specifically requested some contact pursuant to which a date for negotiations could be consensually determined, vouchsafed no response whatever. While a witness, Presi- dent Wills proclaimed his view that, since Complainant Union desired a contract, that organization's representa- tives should make whatever "arrangements" might be re- quired. Such a proffered justification for his failure to re- spond clearly reflects Wills' determination to shun any conduct likely to promote a contractual consensus. Third, I note President Wills' positive April I declara- tions, directly following the representation vote through which Respondent's employees redesignated Complainant Union as their collective-bargaining representative, that he would not sign a contract with Complainant Union; that he had already presented Respondent's machinists directly with various proposals; that he would present Complainant Union with proposals matching those which another ma- chine shop proprietor had previously proffered; that Com- plainant Union could then call a strike; and that Respon- dent would thereupon hire other employees, thereby converting Respondent's facility to presumptive nonunion status. Wills' course of conduct, noted, provided Com- plainant Union with clear notice once more that he would approach their prospective contract talks with a fixed de- termination to avoid contractual consensus, particularly with reference to Respondent's Santa Clara plant. b. During negotiations Following Complainant Union's April I I certification, Respondent's proprietor, so I find, complied, so far as the record shows, with his statutorily defined "obligation" to meet at reasonable times with Complainant Union's repre- sentatives. General Counsel proffers no contention herein that President Wills consciously or deliberately stalled ne- gotiations with dilatory tactics. When dispassionately re- viewed, however, Wills' presence and participation during four bargaining sessions with Business Representatives De- Carli and Huckaby reflects a course of conduct, within my view, clearly calculated to flout the statutory requirement that Respondent, like other firms similarly situated, should: . . confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder ... While pursuing, with purely superficial rectitude, formalis- tic collective-bargaining procedures, Respondent's presi- dent manifested throughout a fixed purpose to forestall any meaningful commitments. Inter alia, that purpose, I find, was revealed: First, when President Wills welcomed DeCarli, shortly following the commencement of their April 18 session, with a declaration that he was considering a closure of Respondent's facility for 90 days, following which he plan- ned a reopening with newly hired workers, within a pre- sumptively nonunion plant. Likewise, Wills proclaimed his purpose, so DeCarli's credible, uncontradicted testimony shows, through further statements that he had consulted legal counsel, that such counsel had confirmed his strategy's validity, and that Complainant Union, so far as he knew, could mount no effective countermeasures. Second, when Respondent's president declared, likewise during the parties' April 18 session, that he would never sign a union contract but would merely "negotiate for one year," following which he would "get the Union out" somehow. Third, when President Wills dealt, subsequently, directly with Respondent's machinists concerning their raises, pos- sible profit-sharing plans, and conceivable substitutes for Complainant Union's contractually mandated pension plan, thereby contravening, specifically, his statutory "obli- gation . .. to. . . confer" with Complainant Union, as the concerned workers' duly designated bargaining representa- tive. Fourth, when Respondent's president declared, further, that plant raises and specified fringe benefits would be- come available should Respondent's workers thereafter forgo or forswear Union representation. Most significantly perhaps, President Wills capped and confirmed his failure or refusal to grant Complainant Union statutorily mandated recognition as his employees' designated and selected collective-bargaining representa- tive when he proposed a contractual open shop provision pursuant to which Complainant Union's negotiators would have been constrained to waive their organization's vali- dated Section 9(a) status. Respondent's proposed open shop provision contained language which, facially, would grant Respondent's machinists a right to choose whether they desired union membership; further, however, Respon- dent proposed that his shop employees should concurrently be given a right to choose whether they desired Union rep- resentation. During their June 20 session, Respondent's president explained this proposal. It meant, so President Wills declared, that should Respondent's contractually covered workers completely reject union representation, or dislike whatever contract terms Complainant Union might neogtiate, those dissatisfied workers could freely negotiate individually with Respondent's proprietor concerning their terms and working conditions. In substance, President Wills was proposing that Complainant Union should rep- resent satisfied members only; this despite the labor organization's most recent certification. Within his brief General Counsel's representative comments that "[n]o clearer rejection of the status of the Union as the represen- tative of Respondent's employees may be imagined" than the rejection reflected in President Wills' proposal noted; I concur. The mere presentation of Wills' proposal-calling for Complainant Union's virtual abdication of its recently confirmed status as the statutory bargaining representative of Respondent's Santa Clara plant workers-reveals be- yond doubt his desire to frustrate or forestall any contrac- tual consensus. Gulf States Canners, Inc., 224 NLRB 1566, 1576 (1976); Tomco Communications, Inc., 220 NLRB 636 406 D & H MANUFACTURING CO. (1975), N.L.R.B. v. Reed & Prince Manufacturing Compan'. 205 F.2d 131, 139 (Ist Cir. 1953); Romo Paper Products Corp., 220 NLRB 519, 521-522, 524-526 (1975). This Board's well-settled decisional principles, confirmed within the cases cit.:d, dictate a determination herein that Respon- dent's persistence in pressing a proposal which, had it been accepted, would have effectively disfranchised Complain- ant Union of statutorily confirmed representational rights constitutes clear evidence with respect to President Wills' bad faith. Respondent's president further displayed his determina- tion to produce a stalemate and thereby frustrate any pos- sible contractual consensus by his June 24 withdrawal of Respondent's previously submitted proposals-particularly with regard to health and welfare and pensions--while proffering less generous commitments. When President Wills, DeCarli, and Huckaby met on June 20 to consider Respondent's previously submitted May 27 proposals, Re- spondent's president had been purportedly willing to carry those "additional costs" not in excess of 10 percent more per year which Complainant Union's sponsored trust funds might require to fund "any and all" contractually mandat- ed health and welfare plans. Further, with respect to Com- plainant Union's pension plan, President Wills had pro- posed "optional" coverage for Respondent's workers, with his firm's contribution requirement limited to $62.50 per month per worker; workers who chose exclusion from Complainant Union's pension plan, then, would, so Presi- dent Wills proposed, receive directly $62.50 per month, supplementing their regular hourly pay. On June 24, how- ever, without any proffered explanation or claimed eco- nomic justification, President Wills withdrew his previous- ly declared willingness to carry limited "additional" health and welfare benefit costs; he presented instead, a proposal, which merely reitereated Malkin's April 18 proposal, previ- ously noted, that Respondent's total health and welfare benefit costs should not exceed $91.90 per worker per month. Further, Respondent's president withdrew his May 27 proposal that contractually covered workers be permit- ted to choose "optional" coverage under Complainant Union's plan; rather, Wills proposed that plan's complete discontinuance, suggesting that Respondent's currently covered workers should, rather, be granted a slight hourly raise. Arguably, Respondent's new proposals, had they been proffered within a pristine situational context which reflected no subjective bad faith chargeable to President Wills because of prior statements and conduct, might not, standing alone, warrant consideration as persuasive indicia suggestive of some predetermination not to reach agree- ment. When conveyed, however, within the situational con- text revealed by this record, they merely provide further evidence, within my view, with respect to Wills' desire to produce a deadlock whereby collective bargaining might be frustrated and Complainant Union's statutorily validat- ed representative status might be undermined. Such "re- gressive" proposals-proffered without even a suggestion, that they had been prompted by economic considera- tions-have conventionally been considered reflective of statutorily proscribed bad-faith bargaining. Pacific Grind- ing Wheel Co., Inc., 220 NLRB 1389, 1390 (1975); compare Nassau Glass Corporation, 199 NLRB 476, 478-481 (1972). Within the case first cited, this Board noted that: it hardly demonstrates an approach to bargaining which seeks to reach a mutually satisfactory agree- ment when, without adequate explanation, each propos- al is decidedly less favorable than the last one, and nothing in the way of a significant compensatory pro- posal is offered . ... [W]e conclude that ... Respon- dent's intention was to avoid reaching agreement and to humiliate the employees' bargaining representative. [FEmphasis supplied.] In this connection I find Respondent's presumptive bad faith confirmed elsewhere within the record. Business Rep- resentative DeCarli testified-credibly and without contra- diction--that President Wills, when quened during their subsequent July 6 session regarding his modified health and welfare proposal, reported that he had discussed the matter with Respoadent's workers and declared further that they would not mind paying "their share" of higher premium costs. Substantially, President Wills' proclaimed course of conduct persuasively reveals his determination to bypass Complainant Union and to negotiate directly with Respondent's workers, without regard for their statutory representative's status. Wills' reaction when confronted with Complainant Union's request for a July 6 bargaining session likewise provides warrant for a determination, which I make, that Respondent's presence at the bargaining table reflected merely a calculated charade, mounted without any concur- rent purpose to bargain sincerely with Complainant Union herein. While a witness, President Wills conceded that de- spite his knowledge that Counselor Neilson, his putative legal representative, lacked background information re- garding his bargaining posture he nevertheless failed to provide Neilson with any copy of Respondent's previously proposals for review before their scheduled July 6 session with Complainant Union's representatives, and that he never even provided Neilson with a statement calculated to clarify Complainant Union's or Respondent's relevant bar- gaining postures, save during a brief conference some 30 minutes before their scheduled meeting commenced. Respondent's president, of course, may have reasonably considered himself somewhat handicapped, since his regu- lar counsel, Anthony Anastasi, was then vacationing and could not be present. Nevertheless, his failure to make any- thing more than a token effort purportedly calculated to bring Neilson au courant with developments provides fur- ther evidence that Respondent's president then had no real desire to generate or pursue meaningful negotiations. Com- pare Gerald F. Hinkle, Inc., d/b/a Akron Novelty Manufac- turing Company. 224 NLRB 998, 100-01 (1976), in this con- nection. Wills' dilatory failures of preparation practically guaranteed that his July 6 negotiation with Complainant Union's representatives would produce no progress toward consensus. Thereby, Respondent's president once more confirmed his previously declared determination to pre- clude or postpone meaningful negotiations. President Wills' belief, freely proclaimed, that he could only be required to "meet and confer" with Complainant Union's representatives throughout a 12-month period, and that his collective-bargaining "obligation" would 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereby be satisfied, reflects some basic misconceptions which clearly require correction. While the statute does not require any party to concede agreement with respect to spe- cific proposals, it does command them to meet and confer "in an honest and sincere effort to reach agreement" with respect to mutually acceptable terms. See N.L.R.B. v. Her- man Sausage Company. Inc., 275 F.2d 229, 232 (5th Cir. 1960); Gerald F. Hinkle d/b/a Akron Novelty Manufactur- ing Company, 224 NLRB 998, 1001 (1977). Mere "surface bargaining" or "shadow boxing to a draw" will not suffice. Consistent with General Counsel's contentions, I find that Respondent, throughout a 3-month period, failed to bargain in good faith, and that thereby Section 8(a)(5) and (1) of the statute was clearly flouted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct set forth in section III, above, since it occurred in connection with Respondent's business operations described in section 1, above, had, and continues to have, a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States; absent correction, such conduct would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, D & H Manufacturing Co., was throughout the period with which this case is concerned, and remains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activi- ties which affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, is a labor organization within the meaning of Section 2(5) of the Act which admits certain employees of Respondent to membership. 3. All production and/or maintenance workers em- ployed by Respondent at its Santa Clara, California, loca- tion, excluding all office clerical employees, guards and supervisors as defined in the Act, constitute a unit appro- priate for collective-bargaining purposes within the mean- ing of Section 9(b) of the Act. 4. Throughout the period with which this case is con- cerned, International Association of Machinists and Aero- space Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, has been, and remains, entitled to claim recognition-pursuant to Section 9(a) of the statute-as the exclusive representative of Respondent's employees within the bargaining unit hereinabove defined for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of work. 5. Since April 1977, Respondent has failed and refused to bargain collectively in good faith with the labor organi- zation hereinabove designated, as the exclusive bargaining representative of its workmen within the bargaining unit hereinabove defined. Thereby Respondent has engaged in, and continues to engage in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. Respondent's president, when he solicited employees to sign a formal decertification petition, promised his firm's employees various economic benefits calculated to encourage their abandoment of Complainant Union as their collective-bargaining representative; notified employ- ees that their continued union membership or support for that labor organization would be futile; and threatened a workman with discharge or removal from consideration for a possible promotion should he testify in connection with a prospective Board proceeding, interfered with, restrained, and coerced employees with respect to their exercise of rights statutorily guaranteed. Thereby Respondent en- gaged in, and continues to engage in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices which affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since I have found that Respondent has committed, and has thus far failed to remedy, certain specific unfair labor practices which affect commerce, I shall recommend that it be ordered to cease and desist therefrom and to take cer- tain affirmative action, including the posting of appropri- ate notices, designed to effectuate the policies of the Act. A determination has been made herein that Respondent refused to bargain in good faith with Complainant Union, in violation of Section 8(a)(5) and (1) of the statute. I shall, therefore, recommend that Respondent be ordered to cease and desist therefrom and, further, that it be ordered to bargain collectively upon request with Complainant Union as the exclusive representative of Respondent's employees within the bargaining unit herein found appropriate, con- cerning their wages, hours, and other terms and conditions of employment, and if an understanding is reached, to em- body such understanding in a signed agreement. Finally, since the record herein reveals that Respondent's refusal to bargain in good faith became manifest with the commence- ment of negotiations, I shall further recommend that Com- plainant Union's formal certification period, normally I year, should be considered to commence on the date, here- after, when Respondent begins to bargain in good faith with Complainant Union as the recognized representative of workmen within the bargaining unit herein found appro- priate for collective-bargaining purposes. Gulf States Can- ners, Inc., 224 NLRB 1566, 1577 (1976); Gerald F. Hinkle, Inc., d/b/a Akron Novelty Manufacturing Company, 224 NLRB 998, 1002 (1976); Dynamic Machine Company, 221 NLRB 1140, 1143 (1975); compare Glomac Plastics, Inc., 234 NLRB 1309, fn. 4 (1978). See Mar-Jac Poultry Compa- ny, Inc., 136 NLRB 785 (1962); Commerce Company, d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965), in this connection. Respondent's workmen should appropriately be notified with regard to this extension of Complainant Union's certification year. Because of the nature, extent, and declared purpose of Respondent's unfair labor practices herein found, I deem it 408 D & H MANUFACTURING CO. necessary for the effectuation of the policies of the Act, to recommend further cease-and-desist directives couched in broad terms, calculated to prohibit any violation of em- ployee rights statutorily guaranteed. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, I hereby issue, pursuant to Section 10(c) of the Act, the following recommended: ORDER' The Respondent, D & H Manufacturing Co., Santa Clara, California, its officers, agents, successors, and as- signs, shall: i. Cease and desist from: (a) Soliciting employees to sign petitions calculated to bring about Complainant Union's decertification, or coop- erating with and endorsing such solicitation. (b) Promising employees various economic benefits, in- cluding, but without limitation, wage increases, a profit- sharing plan, and possible alternatives to some prospective collective bargained pension plan, for the purpose of en- couraging such employees to withdraw support from Com- plainant Union as their collective-bargaining representa- tive. (c) Threatening employees with statements calculated to suggest that their continued union membership or support for Complainant Union herein would be futile because Re- spondent would never sign a union contract, or would nev- er permit Complainant Union to represent Respondent's employees. (d) Threatening employees with possible discharge or removal from consideration for a possible promotion should they testify in some Board unfair labor practice pro- ceeding. (e) Refusing to bargain collectively in good faith with International Association of Machinists and Aerospace Workers, District Lodge No. 93, Local Lodge No. 504, concerning rates of pay, wages, hours of work, and other terms and conditions of employment as the exclusive bar- gaining representative of employees within the following bargaining unit: 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 recommended Order herein shall, as prosided 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. All production and/or maintenance employees at Re- spondent's Santa Clara, California location, excluding all office clerical employees, guards and supervisors as defined in the Act, as amended. (f) Interfering with, restraining, or coercing employees in any other manner with respect to their exercise of rights which Section 7 of the statute guarantees. 2. Take the following affirmative action, which is re- quired to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, as the exclusive bargaining representative of em- ployees within the bargaining unit described above, with respect to their rates of pay, wages, hours of work, or other terms and conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. (b) Notify its employees that Complainant Union's pre- scribed certification year will be deemed to begin with the date. to be determined hereafter, when Respondent com- mences collective bargaining in good faith with Complain- ant Union as the recognized exclusive representative of its employees within the bargaining unit hereinabove de- scribed. (c) Post at its place of business in Santa Clara, Califor- nia, copies of the notice attached to this report as an ap- pendix. Copies of the notice, on forms provided by the Regional Director for Region 32 as the Board's agent, shall be posted immediately upon their receipt after being duly signed by Respondent's representative. They shall remain posted for 60 consecutive days thereafter in conspicuous places, including all placed where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that these notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 32, in writ- ing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced by a judgment of a United States Court of Appeals. the words In the notice reading "Posted by Order of the National L.abor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States C'ourt of Appeals Enforcing an Order of the National Labor Relations Board." 409