Union Carbide Corp.

254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Carbide Corporation, Mining and Metals Division and Oil, Chemical and Atomic Workers International Union, Local 3-89, AFL-CIO.' Case 9-CA-3949. June 9,1967 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On October 14, 1966, Trial Examiner George J. Bott issued his Decision in the above- entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.2 The General Counsel filed a reply brief in support of the Trial Examiner's Decision. The Charging Party filed limited exceptions to the Trial Examiner's Decision, with a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. As described more fully in the Trial Examiner's Decision, the Respondent and the Union have been parties to successive collective-bargaining agreements covering the bargaining unit employees at the Respondent's plant in Alloy, West Virginia, for some 20 years. These so-called basic agreements, establishing the basic terms and conditions of employment, including wages, hours, and vacations, have generally been executed for 2-year terms. The last such agreement, by its terms, expired at 12:01 a.m. on July 2, 1966. Since 1950, when health, pension, and other insurance benefits were first made available to Respondent's unit employees,3 the parties have also maintained successive parallel contracts covering Herein called the Union Respondent also filed a Motion to Reopen the Record and Receive Further Evidence, which was opposed, in separate memoranda, by the General Counsel and the Charging Party In view of our findings, conclusions, and disposition of this case, as set forth below, Respondent's motion is hereby denied these benefits. These so-called pension-insurance agreements have traditionally been executed for 5- year terms. In the past, however, the parties have modified the pension-insurance agreements in midterm and thereupon extended them for new 5- year periods. The current pension-insurance contract, by its terms, remains effective until July 2, 1967. The events herein involve the negotiations for a new basic agreement, to succeed the one which expired on July 2, 1966. Pursuant to the provisions of the then current basic agreement, the Union notified the Respondent on April 29, 1966,' of its desire to negotiate modifications in that agreement, at the same time giving notice to the appropriate Federal and State mediation agencies, as required by Section 8(d) of the National Labor Relations Act, as amended. Negotiations began on May 12, and at their second bargaining session on May 18 the Union presented Respondent with 54 written demands. Between May 12 and June 29, the parties held 16 bargaining sessions, in which the Union's demands and the Respondent's counterproposals were reviewed and discussed. In the course of these meetings the Respondent, in addition to making various separate concessions with respect to the Union's demands, offered three "package" proposals for settlement. The Respondent's first and last "package" offers of June 2 and 29, respectively, included, among other items, an improved vacation plan and improved benefits under the pension- insurance agreement, with an extension of the latter agreement for a new 5-year period. The second "package" proposal, made on June 28, on the other hand, contained neither the vacation plan nor the improved pension-insurance provisions, but increased the wage offer previously made by Respondent. The Union accepted none of Respondent's individual or "package" proposals, nor did it offer any compromise solutions. It merely indicated that the various proposals were insufficient and below the Union's expectations. Thus, on July 1, when the Union rejected the Respondent's "final package" proposal of June 29, the parties reached an impasse in their negotiations. And, on July 2, after the current basic agreement expired, the Respondent closed its plant and locked out its employees. The Trial Examiner concluded that Respondent, by the above conduct, violated Section 8(a)(5), (3), and (1) of the Act. We find merit in Respondent's exceptions to that conclusion. For the reasons fully set forth by him, we agree with the Trial Examiner's ' Prior to 1950 the pension-insurance benefits were available only to Respondent's nonumt employees, i e , the employees at Respondent's approximately 100 plants who are not represented by labor organizations, and the nonbargaining unit employees at Respondent's various organised plants a Unless otherwise indicated, all dates are in 1966 165 NLRB No. 26 UNION CARBIDE CORP. finding that the pension-insurance agreement, having an effective date to July 2, 1967, was not a mandatory subject of bargaining during the 1966 basic contract negotiations herein, and that the Union, therefore, was not required to bargain about, nor could the Respondent lawfully insist upon, any modifications thereof. We do not agree, however, with the Trial Examiner's further finding that Respondent unlawfully insisted to the point of impasse on union acceptance of the nonmandatory demand, or that Respondent thereafter locked out its employees for that purpose. In our view, the facts herein do not establish that Respondent unlawfully insisted upon a nonmandatory bargaining demand. To the contrary, we find Respondent's entire course of conduct during the negotiations was aimed at the single purpose of reaching a settlement on the terms of a new basic contract before the current agreement expired on July 2; that Respondent proposed improvements in the pension-insurance agreement in an effort to speed, rather than frustrate, the negotiations toward settlement; and, that the lockout, therefore, after impasse was reached on issues other than the pension-insurance matter, constituted permissible pressure in support of Respondent's legitimate bargaining position.5 The statutory obligation to bargain collectively is defined in Section 8(d) as ". . . the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment ... but such obligation does not compel either party to agree to a proposal or require the making of a concession .... It is well settled, however, that this obligation to bargain does not mean that bargaining must be confined to the statutory sublects.6 Either party may lawfully propose nonmandatory bargaining items. Neither party may insist, however, nor condition its bargaining or the execution of any agreement, upon acceptance of such demand by the other party.7 The Respondent, therefore, did not violate its duty to bargain in good faith when, on June 2, it initially proposed certain modifications in the current pension-insurance agreement. Nor was it unlawful insistence for Respondent to refer to its June 2 "package" offer during two subsequent bargaining sessions when the Union's wage and vacation demands were discussed. For, the Union had not expressly and unequivocally rejected that offer or the nonmandatory bargaining demand contained therein. After Respondent presented its "final offer" on June 29, the union negotiators for the first time declared their opposition to Respondent's injection of the nonmandatory issue into the basic contract negotiations. In these circumstances, however, it can hardly be said that Respondent's insertion of the nonmandatory subject in its "final offer" of June 29 255 constituted unlawful insistence in the face of a clear and express refusal by the Union to bargain about the pension-insurance modifications.8 As set forth by the Trial Examiner, Respondent made repeated concessions, both separately and in "package" form, on the Union's 54 demands in its effort to speed a settlement of the contract dispute before the current basic agreement expired on July 2. On the other hand, the Union, after 16 bargaining sessions, had neither receded nor offered to compromise with respect to its original demands.9 It is clear, therefore, that the parties were far from reaching agreement on the basic terms of the new contract. And, when the Union rejected Respondent's "final offer," on the eve of the current agreement's expiration date, the impasse in bargaining was inevitable. In view of all the facts and circumstances, including the long bargaining history of the parties, we are persuaded that the inclusion of the nonmandatory bargaining demand in Respondent's June 29 "package" was not a factor in causing the impasse. Accordingly, it has not been established that Respondent insisted on the nonmandatory bargaining demand to the point of impasse. And, we are equally convinced that Respondent did not employ the subsequent lockout for the unlawful purpose of obtaining the nonmandatory bargaining item or otherwise to frustrate or under mine the Union's position as the bargaining representative of Respondent's employees. Having found that the Respondent's conduct during the negotiations, including the lockout after impasse in bargaining was reached, was not unlawful,10 we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. The American Ship Building Company v N L R B, 380 U S 300 NLRB v Wooster Division of Borg-Warner (orp , 356 US 342 Ibid 8 Cf, District 50, United Mine Workers of America (Central Soya Company, Inc), 142 NLRB 930,939 " The Union had withdrawn 2-1/2 of its 30 original so-called noneconomic demands, adhering, however, to all of its original 24 economic requests However, on June 28, the Union presented three entirely new demands which, for that reason, were promptly rejected by Respondent " The American Ship Building Company, supra TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Trial Examiner: Upon charges of unfair labor practices filed by the above-named Union on June 10 and 17, and July 22 and 25, 1966, against Union Carbide Corporation, Mining and Metals Division, herein 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sometimes referred to as Respondent or Company, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing dated July 26, 1966, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) and 8(d) of the National Labor Relations Act, as amended, herein called the Act. On August 8, 1966, Respondent filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices, and a hearing was held before me in Charleston, West Virginia, on August 29, 1966, at which all parties were represented. Subsequent to the hearing, General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses who appeared before me, I make the following:' FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a New York corporation engaged in the manufacture of ferro alloys and metals at its plant located at Alloy, West Virginia. During the year preceding the issuance of the complaint, which is a representative period, Respondent had a direct inflow of products, in interstate commerce, valued in excess of $50,000, which it purchased and caused to be shipped from points directly outside the State of West Virginia to its Alloy, West Virginia, plant. Respondent concedes and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, Local3-89 , AFL-CIO (herein Union), is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Basic Findings Although only the alloy plant of the Mining and Metals Division of Union Carbide Corporation is directly involved in this proceeding, some additional facts about the Union Carbide Corporation, its Mining and Metals Division and their labor relations, are in order to aid in understanding the issues. Union Carbide Corporation has 12 major divisions and about 200 plants. The corporation itself deals ' The Acting Regional Director of Region 9 of the Board petitioned under Section 100) of the Act for a temporary injunction restraining the allegedly illegal conduct pending final disposition of the mattters involved herein before the Board and an evidentiary hearing was held in the United States District Court Southern District of West Virginia before the Honorable John A Field, Jr , United States District Judge, on August 1, 2, and 3, 1966 The court denied the petition The record in the case before me consists of the transcript of the testimony taken before the court in the 10(j) proceeding and most of the exhibits in that case, all of which were presented in this case by stipulation of all the parties In addition, the parties, as permitted by their stipulation , supplemented the 100) record with additional testimony and exhibits. 2 The complaint alleged, and the answer admits that "all hourly rated employees" employed at the Alloy works, with certain exceptions, constitute an appropriate bargaining unit within the with approximately 24 unions in more than 100 organized plants. The Mining and Metals Division is a major division of the corporation with five production units at Portland, Oregon, Astabula, Ohio, Marietta, Ohio, Sheffield, Alabama, and Alloy, West Virginia, the plant involved herein. All of the plants in the Mining and Metals Division are organized-three have the United Steelworkers, and two, those at Alloy and Marietta, the Charging Union. The Alloy plant has about 1,200 production and maintenance employees represented by the Union. At each of the Corporation's approximately 100 plants which have unions, bargaining is done on the basis of a single-plant unit usually established by a certification from the Board covering said plant. Respondent and the Union have been parties to collective-bargaining contracts covering the bargaining unit at the Alloy plant for about 20 years.2 It is important to note at the outset that it has been the practice since 1950 when the first pension-insurance agreement was instituted to have two labor contracts running side by side, one, the so-called basic agreement, which corers wages. hours, and other working conditions, and, the other, an agreement covering pensions and insurance and medical benefits, which may be described for convenience as the pension- insurance plan or agreement. Historically, the basic agreement and the pension-insurance agreement have been for different terms, the basic contract running for 2 years and the pension-insurance contract for 5, but it is also a fact that the pension-insurance agreement has been voluntarily reopened and renegotiated during its term on three occasions in the past at the request of one or the other of the parties. This occurred when the Union Carbide Corporation improved benefits under the pension- insurance plan for the employees at the 100 unrepresented plants and for nonunit employees at organized plants. The basic labor agreement was due to expire on July 2, 1966, unless automatically renewed for yearly periods by failure to give appropriate notice. On April 29, 1966, the Union notified the Company that it wanted to negotiate modifications of the agreement, and it also notified the Federal Mediation and Conciliation Service and the State Labor Relations Board of the "dispute" in accordance with the requirements of Section 8(d)(3) of the Act. The pension-insurance agreement would not expire until July 2, 1967, according to its terms, and the Union made no reference to this agreement in its notice to the Company and the State and Federal labor services.3 The Company and the Union held their first bargaining session for the purpose of negotiating a new agreement on May 18, 1966, at which time the Union presented 54 written demands. Approximately 16 meetings were held in meaning of Section 9(b) of the Act It is also undisputed that the Union has been at all times material the statutory representative of employees in said unit 9 The Company suggests that there is language in the pension- insurance agreement which, if reference is made to the language in prior agreements, permits the Company to require the Union to bargain about pensions and insurance during the term of the agreement, but the Company concedes in its brief that "It is not contended, however, that the Company's representatives had this contract language in mind during 1966 negotiations, or viewed themselves as being in a position to insist upon modification of the pension-insurance agreement in these negotiations " In view of these somewhat inconsistent positions, I have examined the language referred to, and, in my opinion, Respondent wisely does not rely on the contract as a defense, for there is nothing in the existing pension-insurance agreement which permits the Company to open it for bargaining before its expiration date UNION CARBIDE CORP. 257 all before the parties reached a deadlock on July 1. The time at most of the meetings was spent reviewing and discussing the Union's noneconomic demands, which the parties had agreed would be disposed of first, and these meetings are not of major importance. However, certain statements, proposals, and responses about a vacation plan and a pension-insurance agreement made at some of the meetings bear directly on the major issue in the case, and, because of their particular significance, will be set out in some detail. By the end of May, the Company had given the Union written responses to the Union's noneconomic demands, and the parties continued to discuss the issues raised by them. On June 2, at the sixth meeting, the Company orally made what it called an "initial proposal for settlement" which was a "package" proposal containing certain economic concessions. The proposal included an improved vacation plan which the Company was installing for all nonrepresented employees in the 1966 vacation period; an improved pension-insurance plan which the Company had announced and installed for all its nonrepresented employees in January 1966; a graduated wage increase; a ninth holiday; a basic agreement for 2 years, and, however, an extension of the pension- insurance agreement for 5 years.4 It is clear that the Respondent's June 2, 1966, "package" proposal, at least as first presented to the Union, made union acceptance of the improved vacation offer dependent upon it also agreeing to take the improved pension-insurance plan with a 1971 termination date. John L. Frank, International representative of the parent International Union, who headed up the Union's bargaining committee, testified that J. N. Miles, Respondent's chief negotiator, stated when he made the proposal that ". . . the offering and acceptance of the vacation plan is contingent upon your accepting a modified pension plan with a termination date of 1971." Miles conceded that as he was presenting the offer to the Union in the morning session he said, "so there will be no mistake, the vacation plan and the pension and insurance plan are tied together," but he also said that during the afternoon session John Graham, assistant manager for industrial relations for the Division, "corrected" the statement by commenting that "We did present the pension and insurance agreement for five years and the vacation plan improvements as a package. Vacations as proposed would result in a substantial cost.5 However, the Union does have the right to accept the package or to bargain as they see fit." Frank did not recall that Graham made the "exact statement" quoted, but he agreed that Graham said "something to that effect" and that "perhaps they could be separated." I find that Respondent did give some indication during the afternoon meeting of June 2 that its "package" offer was not rigid. The Union rejected the Company's June 2 offer. Frank said it was refused because vacations and pensions were tied together. Miles agreed that Frank objected to the "injection" of the pension issue into bargaining, but he said that Frank also stated at the time that the wage offer was insufficient.6 The parties continued to meet at regular intervals, and the next session at which the subject of vacations and their relation to pensions and insurance was mentioned was held on June 13. At this meeting, when the parties reached for discussion the Union's demand for improved vacations, the Respondent's negotiators reminded the union committee of the Company's outstanding June 2 "package." Frank commented that he understood that offer, as it concerned improved vacations, was tied to the acceptance of the extended pension-insurance agreement, but Miles reminded him that Graham had "corrected that statement" later. Miles told the union negotiators that the Company was willing to bargain on any of the Union's proposals as well as about the "package proposal," and said that although the pension-insurance agreement and new vacations were in the "same package," they were not "tied" together. Miles also told the Union at that time that the Respondent wanted to make the new and better pension-insurance plan available to the employees represented by the Union as soon as possible, but was willing to postpone the benefits until 1967, "if that is your wish." Frank asked about the Union's demand for improved vacations, which was somewhat better than the Respondent's improved plan, and Miles responded that Respondent's proposal "goes far enough." The Union again rejected the Respondent's "package" proposal at this meeting. During a negotiating session held on June 21, the June 2 "package" was brought up again . As the parties were reviewing certain union demands and reached the Union's wage demand, Miles once more reminded the union negotiators of the June 2 offer. He told them that the Company at that time had made "a substantial initial offer for an early settlement" which ". . . included vacation improvements to begin this year, a substantial wage increase, a ninth holiday, an improved pension and insurance plan for 5 years and a precommitted increase for next year," and he accused the union representatives of not making a perceptible "movement" away from their demands. Miles argued the Company's position about the need to put the pension-insurance plan into effect immediately, and Frank suggested that, if the Respondent wanted to, it could put the plan into effect and still give the Union the right to renegotiate it at the expiration of the existing pension-insurance agreement in 1967,' but Miles ' In January 1966, after the Company had improved its vacation policy for nonunit employees, the Union asked the Company to discuss the possibility of having such an arrangement incorporated in the basic labor agreement Although there was no statutory duty to discuss this matter, the Company did so The Company offered the new vacation plan to the Union, but it also proposed acceptance of the new pension -insurance agreement which it had also recently installed The Union did not agree, and nothing was heard of this matter again until during the negotiations for a new contract herein 5 During negotiations Respondent valued its vacation proposal at 6-1 /2 cents per hour " The fact that the Union listened, did not object to, or even discussed company proposals about pension -insurance is not particularly significant if the subject was a nonmandatory bargaining matter. There is no waiver created in doing so See cases cited in fns 14 and 19, infra It should also be noted that the Union charged the Respondent with an unfair labor practice on June 10, 1966, by "Failure to bargain on vacation plan without making it contingent upon Union accepting Company pension and insurance plans which are not open for negotiations until 1967 " ' Graham, a member of Respondent's negotiating team, argued that "eighty percent of the hourly rated employees of Union Carbide have the benefits of this plan now . and the company had the right to let you know it is available and to give you the opportunity to take these benefits now." He added that " we can't force you to take them " Frank commented that he was fed up with hearing about how he was depriving employees of these benefits, and he accused the company of "trying to belittle and harass" him 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demurred, stating that such was not the Company's proposal, because the proposal was to put the plan in effect and extend its expiration date for 5 years. Additional discussion of the Company's pension-insurance proposal took place, and, at one point, Frank noted that the Company had not always in the past insisted on a 5-year extension of the pension-insurance agreement. Miles asked Frank if the Union had a counterproposal on duration of the pension-insurance agreement, and Frank told him the Union had not, because it had not ". . . really considered it because [it] didn't think it was bargainable but we surely will let you know." The Union and the Company continued to meet for bargaining, and on June 28 the Respondent offered the Union another "package" proposal for settlement which it described as "an alternative offer." In its "alternative offer" the Company increased its wage proposal by 1 cent per hour in the various wage brackets, repeated the additional holiday proposal, and made certain concessions on noneconomic issues which are not of any particular legal significance here. It is important to note, however, that the proposal contained nothing about the pension- insurance agreement, but, on the other hand, neither did it include any proposal about improved vacations. It was agreed at the hearing that the Company had put a price tag of 6-1/2 cents per hour on the improved vacation plan which it had offered earlier. Miles testified that Frank asked, "What about the vacation plan," after he made his proposal, and when he replied that it was not included in the package, Frank retorted that, "It looks like we're moving backwards rather than forward." The Union agreed to consider the offer, nevertheless, but it rejected it during an afternoon session, according to Miles, because "the money offer is unsatisfactory" and "the holiday proposal is insufficient." On June 29, 1966, during a bargaining meeting, Miles said he would like to "announce and explain a final offer for settlement." The terms of the offer were presented in writing, but Miles' accompanying statement was not, and Frank asked him for a copy of it. Miles then read it slowly, and Frank recorded it. The announcement, as recorded by Frank, which is in evidence, and about which there is no dispute, reads: This is a complete and final package, to settle all issues raised during the course of the negotiations. It is not to be juggled, would not pull out anything or put in something else. Unless this Committee agrees by Friday at 4:00 P.M. July 1, 1966, to this offer and will recommend it to their Membership at a ratification meeting scheduled no later than Tuesday, July 5, 1966, we will start to shut down the plant at 4:00 P.M. Friday, July 1, 1966, and will complete the shutdown at 12:01 A.M., Saturday, July 2. We expect your full cooperation with us in the protection of our equipment and facilities. We are just as much aware of the I.U.D. Program, by what we have heard and what we have read, as you " I find that Frank did not ask whether there was any company proposal which did not have as a part of it an extension of the new pension-insurance plan Frank's notes did not reflect this, he was not positive that he had asked such a question, and his testimony in the 100) proceeding makes no reference to it " As the union negotiators left the June 29 meeting, where they had just received the Company's "final offer," company guards are. We do not intend to be in the position of trying to operate this plant under conditions as we understand them to be. As I said, we are aware of the I.U.D. Program, and it does not make sense to continue operations on this basis without a work agreement. Summarized, the Company's "complete and final package" provided for another 2-cent-an-hour improvement in the earlier wage proposal in all brackets, an additional holiday, improvement in the funeral leave provision of the agreement and some other changes in contract language governing certain noneconomic issues. In addition, the offer again contained-as had the June 2 "package"-the improved vacation benefits and the improved pension-insurance plan. The basic contract would run until July 2, 1968, and the improved pension- insurance agreement until July 1971, according to the proposal. Some conversation occurred and some comments were made by the negotiators after Miles made his announcement. There is what seems to me to be a minor dispute here over emphasis, and I find as follows: Frank asked if the Company were closing the door to future bargaining, and Miles said it was not. Frank accused the company negotiators of having "injected into their negotiations subject matter not subject to bargaining," and he asked if the improved vacation plan was available without the pension-insurance plan, to which Miles replied, "You have our final package."" The Union rejected the Company's June 29 proposal" in a hand-delivered letter of July 1 in which it also offered, . to continue negotiations and to continue working under an extension of the existing Agreement subject to the right of either party to terminate the extension by forty-eight (48) hours written notice to the other party." The Company, on July 5, by mail, refused the offer to extend the agreement, but stated its willingness to continue negotiations. The labor agreement expired, and the Respondent shut the plant down on July 1. On July 5, 1966, during the shutdown, the parties held their last meeting in the presence of a Federal conciliator. At this meeting, the Company offered to extend the labor agreement to July 2, 1968, "on terms they had last proposed," according to Frank's undenied testimony, which I credit. No other meetings had taken place at the time of the hearing before me, and the plant was still closed.10 In the meantime, however, employees represented by unions at other plants of the Mining and Metals Division had gone on strike. B. Analysis, Additional Findings and Concluding Findings Broadly stated, the question is what was the legal effect of Respondent's insertion of its pension-insurance proposal into collective bargaining, because it is not contended that without such conduct Respondent's bargaining position was legally contaminated, even as implemented by the July 1 lockout. In more detail, the complaint alleges that Respondent refused to bargain in were distributing a letter to employees from Respondent's works manager stating the terms of the proposal and the shutdown action which the company contemplated if the offer were not recommended to employees by the committee "' In written communications to employees on July 6 and 8, 1966, the Company, among other things, repeated the June 29 proposal for settlement and argued for its acceptance UNION CARBIDE CORP good faith with the Union by: (a) conditioning bargaining with the Union for a new contract upon acceptance of Respondent's "package offer" of June 29, which contained a subject not open for bargaining at the time; namely, the pension-insurance agreement covered by the contract between the parties until July 2, 1967, (b) locking out all employees without complying with the requirements of Section 8(d)" of the Act, (c) advising employees that Respondent would shut its plant down if the Union did not agree to recommend to employees that they ratify and accept Respondent's "package offer" of June 29, 1966, and (d) locking out employees in order to coerce them to abandon the Union's contract demands and accept the terms of the final offer made by Respondent on June 29,1966. Respondent' s position is that it did not condition bargaining with the Union on acceptance of a proposal which was a nonmandatory subject of bargaining, namely, the pension-insurance agreement, or lock out its employees for the purpose of achieving its acceptance. Rather, says Respondent, all the elements in its proposals were bargainable , the parties arrived at an impasse on July 1, 1966, and Respondent closed its plant not to force the acceptance of an offer which was outside the legitimate scope of collective bargaining, but to hasten arrival at agreement with the Union which was itself bargaining in bad faith by stalling negotiations in order that all contracts in the Division would expire and Respondent be required to bargain on a multiplant basis. In substantial part, Respondent justifies its action under American Ship Building Co. v. N.L.R.B., 380 U.S. 300, but General Counsel counters by arguing that if an "impasse" existed it was occasioned by Respondent's improper demands and that the lockout was not, therefore, in support of Respondent's "legitimate" bargaining position which he says is essential for the invocation of the American Ship Building holding. Section 8(a)(5) of the Act makes it an unfair labor practice for an employer to refuse to bargain collectively with a union representing his employees in an appropriate unit. Section 8(d) of the Act defines this duty, in relevant part, as follows: ... where there is in effect a collective-bargaining contract ... the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; " There is no Section 8(d)(3) issue about failure to notify appropriate agencies of the existence of a dispute N L R B v Lion Oil Company, 352 U S 282, 285 " N L R B v Wooster Division of Borg-Warner Corporation, 356 U S 342, 349, where the Supreme Court stated The Company's good faith has met the requirements of the statute as to the subjects of mandatory bargaining But that good faith does not license the employer to refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining We agree with the Board that such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining This does not mean that bargaining is to be confined to the statutory subjects Each of the two 259 (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: The duties imposed upon employers, employees, and labor organizations by paragraphs (2), (3), and (4) ... shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. It is settled that a violation of Section 8(d)(4) constitutes a refusal to bargain; if committed by an employer, it is a violation of Section 8(a)(5); if by a union , a violation of Section 8(b)(3).11 It is equally well settled that neither party in the course of collective bargaining can condition willingness to negotiate or contract about matters which are within the area of compulsory bargaining upon the other party's acceding to demands which are outside that area.' •t It is conceded that Section 8(d) of the Act as interpreted removed the pension-insurance agreement from the scope of mandatory bargaining , since it would not expire by its terms until 1967, and that Respondent was required to continue in full force and effect, without resorting to a lockout, all the terms and conditions of the pension- insurance agreement until its expiration date. It also follows that that insistence to a point of impasse on a modification of that agreement would constitute a refusal to bargain even in the absence of a lockout.'` Under the cases it is not essential for a finding of a refusal to bargain that the only cause of an impasse be a party's insistence upon nonmandatory proposals or that a strike or a lockout have as its sole end or object the attainment of discussion or agreement on issues outside the scope of required bargaining.15 This has been well established in cases where unions have struck without complying with the procedural requirements of controversial clauses is lawful in itself Each would be enforceable if agreed to by the unions But it does not follow that, because the company may propose these clauses, it can lawfully insist upon them as a condition to any agreement 'a N L R B v Borg-Warner, supra, fn 13, N L R B v Lion Oil Company, supra, fn 12, Mastro Plastics Corp v N L R B , 350 U S 270, 286, McLeod v Compressed Air, Tunnel, etc , Workers (Catapono-Crow), 292 F 2d 358 (C A 2), Milk, Ice Cream Drivers and Dairy Employees, Local 783 (Cream Top Creamery), 147 NLRB 264 This is also apparent from the plain words of Section 8(d)(4) and the last paragraph of Section 8(d), set out in the text II N L R B v Borg-Warner, supra, fn 13, Industrial Union of Marine & Shipbuilding Workers (Bethlehem Steel Co ) v NLRB.,320F2d615,at618(CA 3) 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(d),'6 and, in view of the mutuality of obligations as defined in that section," it seems safe to assume that a lockout which has as one of its ends change or modification of an agreement which need not be bargained about by the other party under Section 8(d) would violate the Act."' Respondent's whole course of conduct in this case, including its actions and statements during bargaining and the lockout itself, was equivalent to insistence upon union acceptance of an altered pension-insurance plan as a condition of settlement. Even though it is well known that in this field, as in the market place generally, or even in international diplomacy, that words like "ultimatum," "dependent," "contingent," "package," or "final and complete," are not always to be taken literally, neither can Respondent's own plain words to the Union and employees describing what it wanted be ignored; and its statements just before and right after the lockout are most significant. Admittedly, when, on June 29, 1966, Miles handed the Union the Company's "complete and final package," which contained an extension of the pension-insurance agreement for 5 years, he said the offer was "not to be juggled" and that the Company would not "pull anything out or put something else in," and, in addition, unless the Union agreed promptly to recommend the offer to the membership, the Company would immediately shut down. This quoted language sounds and looks like an "ultimatum," and even the sophisticated would agree that at least it appears to be "insistence." If Respondent's offer was not meant to be inflexible and the pension- insurance portion of it not an essential ingredient of settlement, it had an opportunity to clarify its position when Frank asked if the improved vacation plan was available without the pension-insurance agreement, but Miles only said, "You have our final package." If Respondent were bluffing and if, as Respondent urges, there was an alternative offer open and its "final" offer was negotiable, all its actions continued to point the other way, because, as the union negotiators left the June 29 meeting, company guards were distributing letters to employees stating in detail the "package offer" just given the Union containing the proposed change in the pension-insurance agreement and announcing "an orderly shutdown of the plant late in the afternoon of July 1" if the Company's offer was not recommended by the union negotiating committee to the employees for ratification. This announcement contained no alternatives, no 16 Local No 156, United Packinghouse Workers of America, AFL-CIO (Du Quoin Packing Company), 117 NLRB 670, International Union United Mine Workers of America (Westmoreland Coal Co), 117 NLRB 1072, 1075, Milk, Ice Cream Drivers and Dairy Employees, Local No 78.3, etc (Cream Top Creamery), 147 NLRB 265 11 N L R B v Insurance Agents' International Union (Prudential Ins Co ), 391 US 477 '" Section 8(d) was added to the Act by the 1947 Taft-Hartley amendments Senator Taft summarized these provisions as follows (93 Cong Rec 6860, 2 Legislative History of the Labor Management Relations Act, 1625) (GPO 1948) either party to a contract may refuse to change its terms or discuss such a change to take effect during the life thereof without being guilty of an unfair labor practice Parties may meet and discuss the meaning of the terms of their contract and may agree to modifications on change of circumstances, but it is not mandatory that they do so See also C & S Industries, 158 NLRB 454, where the Board in meeting a contention that Section 8(d) imposed no duty on an qualifications, no exceptions, and it spoke only of acceptance of "the offer" which the Company had made the Union. Employees, it would seem, might be expected to take the Company at its word. But if any employee was so sophisticated in the art of collective bargaining that he thought "final" meant tentative and that Respondent did not seriously intend to lock him out unless his representatives recommended that he accept the offer which included a resolution of a nonmandatory bargaining subject, he must have been shaken when the Company closed the plant and, in a letter to him on July 6, 1966, repeated the substance of its prior offer, including in first place, "The Pension and Group Insurance Plan Improvements," accompanied by arguments supporting its acceptance.10 Just a day before, in a meeting with the Union, with a representative of the Federal Mediation and Conciliation Service present, the Company repeated its previous offer of settlement, including as part of it the improved pension-insurance plan and increased vacation benefits.20 From the above statements and events, not only is it reasonable to infer that Respondent's statements and actions amounted to insistence upon acceptance of the pension-insurance agreement extension as part of a settlement of the dispute, such a finding is practically compelled. Respondent recognizes that Miles' statement on June 29 was "bold and definite," but argues that it should not be taken out of context.'' In my view, however, other incidents and statements during the bargaining process are consistent with such a finding. "Insistence" does not mean that a party must have used certain key words or confessedly conditioned settlement on discussion or agreement on nonmandatory subjects. The continual injection of illegal or otherwise extraneous issues into bargaining is evidence from which one may infer that the nonmandatory has been emphasized to such a degree that the obligation to bargain in good faith as defined in Section 8(d) has not been met." Certainly the inference has more support when the improper or extraneous matter appears in the bargaining only in conjunction with a valuable concession which disappears from the table when the nonmandatory item does. This is, indeed, what I find occurred during the bargaining. Respondent made its first "package" proposal, including a modified pension-insurance agreement employer to refrain from acting unilaterally , once the union rejects the employer's offer to bargain about proposed midterm contract changes, said This is to be contrasted with the unquestioned protection provided an employer under Section 8(d) against union strikes aimed at obtaining contract modifications during the effective period of a contract We are unwilling to construe the statute in a manner that would thus render nugatory the above-quoted language of Section 8(d), provide for a one- sided application and curtail the effectiveness of collective- bargaining agreements as a stabilizing factor in labor- management relations GC Exh 10 This appears from Frank's testimony and from written transcripts of telephone recordings played to employees who telephoned the plant after the lockout (G.C Exh 9 Respondent's brief 't District 50, United Mine Workers of America (Central Soya Company, Inc), 142 NLRB 930 UNION CARBIDE CORP. expiring in 1971, on June 2, 1966.23 When it first presented this "package" to the Union, Respondent told it that "the offering and acceptance of the vacation plan is contingent upon your acceptance of a modified pension plan with a termination date of 1971." There was no question about dependency of the companion proposals for Miles made it clear that ". . . there be no mistake, the vacation plan and the pension and insurance plan are tied together." If the case had ended here there would be no question about "insistence" to a point of impasse on nonmandatory subjects, but that afternoon, Graham, another company negotiator "corrected" the morning's ultimatum by announcing that the Union had"... the right to accept the package or to bargain as they see fit." In my opinion, this "correction" was only a correction in the form of bargaining, not in the substance, for on June 13, and again on June 21, when the Union's vacation demands and wage proposals were under discussion, Respondent again returned to its June 2 proposal and urged union acceptance.24 The Union rejected Respondent's June 2 offer, and by June 28 the parties had completed their review of all of the Union's proposals, economic and noneconomic. At the June 28 meeting Respondent made a second "package" proposal and called it an "alternative" proposal. This offer did not touch on pensions or insurance, but neither did it have anything on improved vacations-an item which Respondent estimates was worth 6-1/2 cents an hour. The Union also rejected this offer with Frank commenting that it seemed that the Respondent was "going backward," and then, of course, as described above, Respondent made its "final" offer, just before the lockout, and this offer again contained both vacations and pension-insurance. I do not believe that Respondent's June 28 offer, realistically viewed, omitting as it did any proposal about vacations, was presented with any confidence that it would be accepted, but was put forward to contrast dramatically with the next day's wage-vacation-pension-insurance "package" which Respondent was bent on securing. Not only was it not a real offer, it certainly, as words and actions are commonly understood, was not open or still available, as Respondent contends, on June 29 when Respondent made its offer which it described as "a complete and final package to settle all issues" from which it "would not pull out anything or put in something else" and which, unless recommended for acceptance, would result in a lockout. I find and conclude, on the basis of the above considerations, that a substantial consideration in Respondent's bargaining was the attainment of a modification of the pension-insurance agreement prior to its termination date; that Respondent insisted to the point "The Company had improved its vacation and pension- insurance policy for nonumt and unorganized employees in January 1966 As early as January 1966, at a time when the basic labor agreement could not be opened for negotiations on vacations-or anything else covered by it-the Union asked the Company to discuss the question of extending the new vacation benefits to unit employees The Company, as it had a right to, agreed to meet, but carefully conditioned discussions on an understanding that it was not waiving its rights under the agreement In subsequent discussion, it offered the new vacation benefits to the Union, but it also tied to it agreement on the new pension-insurance plan, and the Union turned it down This is some indication that Respondent, as early as January 1966, was determined to get "something of value" for a concession on vacations, and that "something of value" was an early pension- insurance lock 261 of impasse during negotiations on obtaining a settlement of this nonmandatory issue, and locked out its employees to secure that end.25 There remains for consideration Respondent's contention that it ". . . temporarily shut down its plant and laid off its employees for the sole purpose of resisting the Union's bargaining strategy, and forestalling the Union's declared intention to prolong negotiations without reaching an agreement, until bargaining could be backed up with advantageously timed multiplant strike action. This is the real reason for the Alloy lockout; and it has nothing to do with forcing a modification of the pension- insurance agreement."26 Respondent urges that if this is so then its actions were proper under American Ship Building Company v. N.L.R.B., 380 U.S. 300, where the Court held that an employer does not violate the Act, "when, after a bargaining impasse has been reached, he temporarily shuts down his plant' and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position." There is some evidence in the record that certain local unions, including the charging party, are part of a program to coordinate the bargaining of various unions which deal with Union Carbide Corporation, particularly with respect to the pension-insurance agreement. There is within the AFL-CIO an Industrial Union Department (IUD), which has as one of its functions the "coordination" of bargaining by locals of the several AFL-CIO unions which represent employees at different plants of large employers. It was stipulated during the hearing in the Section 10(j) matter that "There is under the auspices of the Industrial Union Department of the AFL-CIO a program to coordinate the bargaining of the various unions which deal with Union Carbide, and in particular an attempt to get coordinated negotiations with respect to the uniform pension plan which exists throughout the plants of Union Carbide. There is such a program, and this local, which is in this lawsuit, is part of that program." There is also a "Carbide Nationwide Council" in the IUD which has announced a coordinated bargaining program" for the Respondent's Metals Division's Locals as contracts expire, specially directed at Respondent's vacation and pension-insurance plan. At a meeting in the Company's New York office in April 1966, between company industrial relations representatives and a substantial number of Carbide Nationwide Council representatives from the various locals, S. J. Harris, assistant director, collective-bargaining section of the IUD, spoke and said during his remarks to the company representatives, "You are in trouble this year. By August or September you will have a number of plants down." 2' In the 100) proceeding, Miles testified that "The vacation plan was a pretty healthy plum we thought and we felt we should have something for it, and we felt that the pension and insurance agreement tied up for five years would be worth the vacation plan " S There is no allegation in the complaint that Respondent failed to bargain in good faith during the 6 weeks preceding the June 29 meeting, but the evidence and findings relating to that period set out above have been included in response to Respondent's contention that its conduct prior to June 29 demonstrates that its June 29 bargaining posture was not inflexible, and because it is relevant background for the events of June 29 and thereafter 26 Quoted from Respondent's brief 299-352 0-70-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In March 1966, Harris sent a memorandum to all Union Carbide IUD delegates, enclosing a resolution. The memorandum noted that a meeting of delegates had been held for the "major purpose" of preparing for "1966 coordinated bargaining spear-headed by the Metals Divisions Locals" and also to "get a consensus as to whether Locals desired national bargaining on Pension and Insurance in 1967. . . . " Other references in the memorandum point in the direction of "coordinated bargaining." The attached resolution, which was adopted by the Charging Party in this case, declared that the Local would consult the Union Carbide Steering Committee and "consider its views and advise before accepting any final Company proposal." It also provided that "Those Local Unions whose Pension and Insurance agreements expire in the year 1967 will not accept any changes in those plans until changes are negotiated in 1967." Earl Engle, general manager of industrial relations for the Corporation, testified that he participated and shared in the management decision to shut down the Alloy plant and that the decision was made shortly before the June 29 bargaining session. He was aware of the "coordinated bargaining" approach of the unions in the IUD, and this motivated him, in part, to take the action he did. He stated that the plant was shut down because "We felt that this realistically was the only way that we could prevail in our attempt to remove it from the multiplant bargaining area." He conceded that he was also aware that IUD was going to try to "coordinate" bargaining about pension-insurance on a companywide level in 1967 and that one of the considerations in his mind in the bargaining in the instant case was an extension of the existing pension plan past 1967 into 1971 so that the Company would not be vulnerable to the IUD program. I do not think that the evidence just set forth supports Respondent's contention that its sole object in the lockout and surrounding negotiations was to frustrate the Union's illegal strategy and that Respondent's actions, therefore, were only in support of its legitimate bargaining position. On the other hand, Engle's testimony that the Union's plan to secure simultaneous bargaining about the pension- insurance agreement at many locations in 1967 was a consideration in Respondent's bargaining strategy strengthens the finding that a factor in the deadlock which developed was Respondent's desire to achieve an early modification and extension of the pension-insurance contract. First of all, the evidence about "coordinated bargaining" or concurrent local strikes does not of itself establish a refusal to bargain on the Union's part within the meaning of the Act. The Union had the right to consult with other locals about common concerns and could even insist upon common expiration dates for its local agreements. 7 The Union, as could the employer, could 'r United States Pipe and Foundry Company v N L R B, 298 F 2d 873 (C A 5), American Radiator & Standard Sanitary Corporation, 155 NLRB 736 'K N L R B v International Brotherhood of Electrical Workers (Texltte, Inc), 266 F 2d 349 (C A 5), International Longshoremen's Association (New York Shipping Assn , Inc), 118 NLRB 1481 2" 1 do not mean to suggest that if a union should bargain in bad faith by, for example, demanding a closed shop or an agreement in violation of Section 8(e), that an employer may insist upon attaining a concession on a nonmandatory subject and lockout to that end I know of no case which so holds, and nothing in American Ship Building suggests that result "' G C Exh 10 suggest agreement on nonmandatory subjects, such as multiplant or employer bargaining on the basis of a different unit, but not insist on such to point of impasse,"' and I find no evidence that the Union did so in this case.29 The Local Union, which is the Charging Party here, resolved, it is true, not to accept any change in the pension-insurance agreement until it expired in 1967, but this it had a right to do, because Congress had removed that subject from the area of mandatory bargaining. Although the local agreed to "... consult the IUD-Union Carbide Steering Committee, and consider its views and advice before accepting any final Company proposal," there is no evidence that the local "locked" itself in by agreeing to take nothing that was not approved by other unions representing other bargaining units, and, as a matter of fact, there is evidence in the record that many locals of other unions, including locals of the International Union in this case, have signed the Company's new pension-insurance proposal.-'o In the second place, even if one should suspect that the Union's strategy included more than mere consultation with its sister locals, the Company's injection of the nonmandatory subject into bargaining makes it almost impossible to assay the Union's motives. If the pension- insurance issue is removed from the data to be analyzed-which it is almost impossible to do for it was ever present-the record seems to show that both sides were engaging in hard bargaining for the best economic deal they could make, and when the pension-insurance issue is included in the picture it is logical to assume, since the subject is legally extraneous by the terms of the Act itself, that it frustrated or impeded the bargaining process more than any supposed union conspiracy. Third, if Respondent's sole object was to get an early agreement on bargainable items it could have tested the Union's good faith and locked the employees out in search of an agreement which did not contain the nonbargainable matter, but Respondent chose right up to the last to propose the pension-insurance plan, and this is an added indication, therefore, that one of the ends that Respondent sought to achieve was modification of that agreement and not just a settlement of subjects which must be bargained about if the statutory mandate is to be met. American Ship Building Company affords Respondent no protection. That case excuses a lockout after an impasse in support of an employer's legitimate bargaining position. The impasse in this case was of the Company's own making, and the lockout was in aid of a bargaining position which Respondent had no right to take." I find and conclude, therefore, as alleged in the complaint, that by insisting to a point of impasse that the Union accept its "package offer" containing an extended pension-insurance agreement; by locking out its employees for the same purpose and by threatening its " See American Stores Packing Co , 158 NLRB 628, where the Board said that there is nothing in American Ship Building to suggest that the Court viewed the lockout as permissible in support of unlawful bargaining demands In Tonkin Corp of California, d/b/a Seven Up Bottling Co, 158 NLRB 1223, the Board in considering the impact of American Ship Building, said a lockout was not for the sole object of applying pressure in support of a legitimate bargaining position, but was motivated by purposes repugnant to certain sections of the Act Here, of course. Respondent's suggestion for change in the pension- insurance agreement was not unlawful, but its insistence was a refusal to bargain, and its lockout in support thereof was repugnant to Section 8(a)(5) and (d) of the Act UNION CARBIDE CORP employees that it would shut down its plant if the Union did not agree to recommend to employees that they ratify Respondent's June 29, 1966, contract offer, Respondent engaged in and is engaging in unfair labor practices as defined in Section 8(a)(1), (3), (5), and (d) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Company set forth in section III, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent Company engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent locked out its employees and refused to bargain with the Union, it will be recommended that Respondent resume operations at its alloy plant and offer to those employees locked out immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent's refusal to bargain and discrimination against them,32 by payment to them of a sum of money equal to that which they would have earned as wages from the date of the lockout to the date of offer of reinstatement and in a manner set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In addition, in order to remedy Respondent's refusal to bargain in good faith with the Union, it will be recommended that Respondent be ordered to bargain 12 Fibreboard Paper Products Corp v N L R B , 379 U.S 203 Even if Respondent had not discriminated against employees by its lockout within the meaning of Section 8(a)(3) of the Act, which I have found it did, the remedy for the 8(a)(5) violation would be 263 collectively, upon request , with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. It will also be recommended that Respondent preserve and make available to the Board, upon request , payroll and other records to facilitate the computation of backpay. It will further be recommended , in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All hourly paid employees employed at the Respondent's Alloy Works in Fayette County, West Virginia, including head furnacemen and head mix men, but excluding patrolmen, timekeepers, medical department employees, laboratory employees, employees in the alloy coal mine and all guards, professional employees and supervisors as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been, and is now, the statutory representative of said employees. 5. By refusing to bargain with the Union as found above on June 29, 1966, and thereafter, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By threatening to lockout and by locking out its employees on July 1, 1966, as found above, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] the same, since the employees were laid off as part of a bargaining position which was inimical to good-faith bargaining as defined in the Act