Taylor Instrument Cos.

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor Instrument Companies and International As- sociation of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1518. Case 20-CA-3768 January 16, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On February 1, 1967, Trial Examiner James T. Barker issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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. He also found that Respondent had not engaged in cer- tain other unfair labor practices alleged in the com- plaint. Thereafter, the General Counsel and Respondent filed exceptions to the Decision and supporting briefs. The Respondent also filed a mo- tion for oral argument' and 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 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 and briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. The Trial Examiner found, and we agree, that the Respondent's bargaining table conduct during negotiations with the Union was not violative of Section 8(a)(5) of the Act.3 However, the Trial Ex- aminer found that Respondent violated Section 8(a)(5) by failing to resume negotiations with the Union following a bargaining impasse. In so hold- ing, the Trial Examiner relies on telephone calls placed by the Union to the office Labor Negotiator Robert Scolnik on June 9 and June 21, 1965, and the mid-June telephonic and telegraphic communi- cations between the Federal Mediation and Con- ' The Respondent's request for oral argument is hereby denied as, in our opinion , the record, including the exceptions and briefs, adequately presents the issues and positions of the parties. 2 The Respondent excepts to the Trial Examiner 's credibility findings. It is the Board's established policy, however , not to overrule a Trial Ex- aminer's resolutions with respect to credibility unless, as is not the case here , the preponderance of all the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 8 With respect to Respondent's discontinuance of payments required under the Health and Welfare provision of the contract , the Trial Ex- ciliation Service4 and Robert Scolnik. Thus, the Trial Examiner found that as of June 22, 1965, Respondent became obligated to resume negotia- tions with the Union, and failed to do so. Respond- ent excepts to this finding. We find merit in this exception. Briefly, the Respondent and Union engaged in three bargaining sessions from May 17, 1965, to June 4, 1965. At the June 4 meeting, an impasse was reached. The Union commenced strike action on the same day. On June 7, Respondent wrote a letter to the Union confirming the existence of an impasse and stated Respondent's willingness to resume negotiations and requested that the Union submit a new offer or new proposals in writing prior to another meeting. The Union admits that it did not reply to this letter by sending a written request to resume negotiations. The Union also concedes that on June 9 and 21, the dates relied on by the Trial Examiner, it was unable to reach Scolnik by telephone and only left messages with his office for him to return these calls. However, the record shows that the Union did not indicate that these calls were placed in connection with this dispute or with regard to the resumption of negotiations with Respondent. This is of particular significance since it is apparent from the record that at the time these calls were placed the Union had other dealings with Scolnik over these matters unrelated to Respondent and this case. In June there were communications between the FMCS and the Union, and it is undisputed that the FMCS scheduled a meeting between the parties in mid-June, which Respondent's attorney did not at- tend. Scolnik credibly testified that prior to this scheduled meeting, he received a call from the FMCS commissioner indicating the commissioner's desire to arrange a meeting to settle the strike. Scol- nik told the commissioner to give him ample notice if a meeting was arranged. However, Scolnik later received telegraphic notice just 30 minutes before the start of the meeting. He thereupon called the FMCS and objected to such short notice. The com- missioner apologized and told him that the meeting would be canceled. Scolnik further testified without contradiction that he had asked who was requesting the meeting and was informed by the FMCS that it was called by the FMCS and not at the request of the Union. Under all of the circumstances in this case, we are persuaded that the Union did not clearly com- aminer concluded that Respondent had a good -faith belief that such ter- mination was permissible and that the Union had ample opportunity to discuss the validity of Respondent's position. He therefore recommended dismissal of these allegations. We do not consider or pass on this aspect of the case as the issue-of Respondent's right to make changes during the hiatus between contracts was neither specifically raised by the complaint nor litigated at the hearing, and the credited evidence reveals that the con- tract had expired prior to the discontinuance of the plan. We also note, in any event , that Respondent consulted at some length with the Union and raised this matter prior to the termination of the plan. Hereinafter referred to as FMCS. 169 NLRB No. 28 TAYLOR INSTRUMENT COMPANIES municate a request to resume negotiations that could reasonably be interpreted as such by the Respondent. Accordingly, 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. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner: Upon a charge and an amended charge filed on September 1 and October 21, 1965, respectively, by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1518, hereinafter called the Union, the Regional Director of the National Labor Relations Board for Region 20 on December 6, 1965, is- sued a complaint and notice of hearing alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, hereinafter called the Act. Pursuant to notice, the hearing opened before Trial Ex- aminer John F. Funke on March 8, 1966, at which time the formal papers in this proceeding were received in evidence. The Trial Examiner ruled on certain motions, and, inter alia, granted a motion to quash a subpena directed by the General Counsel to Robert J. Scolnik, counsel for Respondent. Upon notification by counsel for the General Counsel that the General Counsel would seek enforcement of the subpena, the hearing was ad- journed by Trial Examiner Funke without date. The hearing resumed before me at San Francisco, California, on April 12 and continued on various dates thereafter, closing on April 19. At the hearing all parties were represented at the hearing and were afforded full op- portunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. The Respondent presented oral argument and on June 6, the General Counsel and Respondent filed briefs with me. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Taylor Instrument Companies, hereinafter called the Company or Respondent, is a New York corporation with its main office and principal place of business located at Rochester, New York, and with plants in the States of Georgia, Illinois, Oklahoma, and at San Lean- dro, California. At all times material herein Respondent has been en- gaged in the manufacture of scientific, commercial, and industrial instruments. During the year 1964, Respond- ent, in the course and conduct of its business operations, sold and shipped products valued in excess of $50,000 I Unless otherwise indicated, all dates refer to 1965. 163 from California directly to places located outside the State of California. Additionally, during the year 1964, in the course and conduct of its business operations Respondent made sales valued in excess of $50,000 to firms located in California, which firms, during the same period, shipped products valued in excess of $50,000 directly to places located outside the State of California. Upon these admitted facts I find that Respondent is, and at all times material herein has been, an employer en- gaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated at the hearing that District Lodge No. 115 and Local Lodge No. 1518 are separate autonomous labor organizations, and I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The complaint, as amended at the hearing, alleges that at all times material since 1955 and continuing thereafter the Union has been the majority representative for the purposes of collective bargaining of employees, in an ap- propriate collective-bargaining unit comprising eight em- ployees employed at Respondent's San Leandro shop. The complaint further alleges that commencing on or about February 26, 1965,1 and at all times thereafter, the Respondent refused to negotiate meaningfully or in good faith with the Union. As specific separate violations of Section 8(a)(5) of the Act, the complaint further alleges that (a) on April 27, Respondent advised the Union that, upon the expiration of their then existing collective-bar- gaining agreement, it would no longer make any health and welfare, insurance, and pension payments for em- ployees as provided in said existing collective-bargaining agreement; (b) on May 17, and at all times thereafter, Respondent insisted and demanded to point of impasse that any agreement between it and the Union contain a management rights clause reserving to Respondent exclu- sive and unilateral control over the right to suspend, lay off, or discharge employees, and over other terms and conditions of employment; (c) on the same date insisted and demanded to point of impasse that any agreement between it and the Union contain a grievance and arbitra- tion clause requiring employees to take up grievances with their supervisors without the Union present; (d) on June 4, and at all times thereafter, Respondent refused to present further contract proposals unless and until the Union accept all contract proposals which the Respond- ent had advanced up to that time; (e) on the same date offered to accept the Union's severance pay proposal if the Union would agree to withdraw as the collective-bar- gaining representative of Respondent's employees; and (f) from June 4, and at all times material thereafter, refused to make any health and welfare, insurance, and pension payments for employees as provided in their col- lective-bargaining agreement aforesaid. With respect to the alleged violations of Section 8(a)(3) of the Act, the complaint alleges that (a) on June 4 certain employees of Respondent employed in the appropriate collective-bargaining unit represented by the Union con- certedly refused to work and went on strike;'(b) the strike 350-212 0-70-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was prolonged by the unfair labor practices of the Respondent; and (c) on July 27 certain employees of Respondent who had concertedly stopped work as a result of the aforesaid strike made unconditional requests to Respondent that they be allowed to return to work, which requests were refused. The Respondent denies the commission of any unfair labor practices and asserts that International Association of Machinists, District Lodge No. 115, at pertinent times did not represent a majority of, the employees in the col- lective-bargaining unit. Additionally, by way of special af- firmative defenses foreclosing findings of unlawful con- duct on the part of Respondent, the Respondent asserts that (a) the allegations of the complaint are barred by Sec- tion 10(b) of the Act; (b) during the course of negotiations the Union refused to bargain in good faith with Respond- ent; (c) on July 23, 1965 [the Union] abandoned the strike; and (d) during the early part of July 1965 and thereafter [the Union] abandoned the strikers and the employees in the bargaining unit and thereby abandoned or waived its legal status as exclusive bargaining representative of such an employee. Further, the Re- spondent contends that the issuance of the complaint herein constituted an abuse of administrative discretion and a denial of due process of law.2 B. Pertinent Facts 1. The San Leandro branch James E. Philpot is branch manager of Respondent's San Leandro plant, which is one of four branches of the Respondent in the continental United States. Respond- ent's headquarters are in Rochester, New York. Em- ployed at the San Leandro branch are approximately 35 employees who are engaged in assembling scientific in- struments. Eight employees comprise the collective-bar- gaining unit in which the Union is alleged to be the duly designated bargaining agent . Parts or units manufactured at the Rochester plant of Respondent are shipped to San Leandro for assembly and for ultimate shipment to customers. A. S. Dodge, who is headquartered in Rochester, is Respondent's vice president in charge of industrial rela- tions. In the area of labor relations, the duties of James Philpot include ultimate responsibility for directing per- sonnel at the San Leandro plant. Additionally, he pro- vides information and data to be utilized in contract negotiations. The negotiations which are the subject of this proceeding were conducted by Robert Scolnik, Respondent's counsel , who was assisted by James Phil- pot. 2 Without merit are Respondent's contentions relating to the jurisdic- tional frailties arising from the application of Section 10(b) of the Act and the alleged abuse of administrative discretion and denial of due process resulting from the issuance of the complaint herein. In the first facet of Respondent's 10(b) contention the assertion is made that no charge was filed within 6 months of the time of the occurrence of conduct particu- larized in the complaint as violative of Section 8(a)(5) of the Act. Initially, the General Counsel in his brief concedes that under the September 1 charge, no violation of the Act may be found to have occurred prior to March 1, which delineates the commencement of the I0(b) limitations. The contention must otherwise be decided contrary to Respondent on the basis of controlling precedent cited by the General Counsel. E.g., N.L.R.B. v. Kingston Cake Co., Inc., 191 F.2d 563, 567 (C.A. 3); N.L.R.B. v. Raymond Pearson, Inc., 243 F.2d 456, 458-459 (C.A. 5); Cummer-Graham Company, 122 NLRB 1044, fn. 3, enforcement denied on other grounds 279 F.2d 757 (C.A. 5). Similiarly, without merit, is Respondent's second 10(b) contention that the allegations of the com- 2. The collective-bargaining history The evidence establishes that on February 10, 1955, Respondent entered into a supplemental agreement ex- ecuted by a representative of Lodge 1327, International Association of Machinists and Lodge 1518, of District Lodge 115, International Association of Machinists, to be effective until December 31, 1955. In pertinent part, the supplemental agreement contained the following provisions: (4) That in the event the Company transfers its San Francisco shop operations to San Leandro, Califor- nia during the term of this agreement, this agreement shall continue in full force and effect at said location. (5) That at such time the Company agrees to recog- nize Lodge No. 1518, of the District Lodge 115, I.A.M. as the sole exclusive bargaining agent of the Company's employees in the unit in lieu of Lodge 1327, I.A.M., and Lodge No. 1518, of District Lodge 115, I.A.M. agrees to be substituted in the place and stead of Lodge No. 1327, I.A.M. as the bargaining agent of the abovementioned employees and to be bound by the terms of this agreement. Subsequently, on December 17, 1957, the senior representative of District Lodge 115, in correspondence with Respondent's labor relations representatives relating to the Company's proposal for a new agreement for the years 1956 and 1957, suggested elimination therein of any reference to Local 1518, "leaving District Lodge 115 as the bargaining agent," on the ground that District Lodge 115 "functions differently than a Local Lodge." Thereafter, commencing in 1957, the Respondent has been a party to a series of collective-bargaining agree- ments which by their terms purport to have been between Respondent and District Lodge No. 115. The most recent collective-bargaining agreement between the parties was one which was executed on July 23, 1963, and which was, by its terms, effective from May 1, 1963, through April 30, 1965. The 1963-65 agreement, which was negotiated by Mike Manfredo, business representative of Local Lodge 1518, was executed by William Stadnisky, senior busi- ness representative of District Lodge No. 115. The agreement provided that it was one between Taylor In- strument Companies and District Lodge No. 115, Inter- national Association of Machinists. The 1957 agreement and those for the period 1958-60 and 1961-63 had been executed by Mike Manfredo. 3. The relationship between Local Lodge 1518 and District Lodge 115 plaint relating to 8(a)(3) violations are rendered nugatory by the absence of any specific reference in either the September 1 charge or October 21 amended charge to conduct violative of Section 8(a)(3) of the Act. As the facts reveal a virtually inextricable relationship between the conduct specified in the charge and amended charge as violative of Section 8(a)(5), and that particularized in the complaint as violative of Section 8(a)(3), the Respondent's second contention must be rejected. See N.L.R.B. v. Dinion Coil Co., Inc., 201 F.2d 484, 491 (C.A. 2); N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F.2d 393 (C.A. 2), cert. denied 347 U.S. 953. Nor do I find valid as a defense the contention that the issuance of the complaint constituted an abuse of administrative discretion and a denial of due process. See United Brotherhood of Carpenters & Joiners of Amer- ica, Local Union No. 978, AFL-CIO, et al. (Markwell & Hartz Contrac- tors), 120 N LRB 610, 612. The validity of Respondent's other special affirmative defenses is hereinafter considered in the body of this Decision. TAYLOR INSTRUMENT COMPANIES 165 The jurisdiction of District Lodge No. 115 extends to Alameda and Contra Costa Counties in the State of California. District Lodge No. 115 is comprised of eight local lodges, including Local Lodge No. 1518. The duties of William Stadnisky, as senior business representative of District Lodge No. 115, entail, inter alia, negotiating collective-bargaining agreements. Stad- nisky was elected to his position by a vote of the member- ship of the eight local lodges comprising District Lodge No. 115. District Lodge No. 115 exists for the purpose of negotiating contracts, conducting organizational cam- paigns, and servicing agreements on behalf of and for the eight local lodges which comprise the District Lodge. The District Lodge does not admit employees to membership, but local lodges, including Local Lodge No. 1518, do admit to membership and represent employees who are employed in the production worker classification. As found above, Stadnisky executed the collective-bar- gaining agreement which was in effect between Respond- ent and District Lodge No. 115 until April 30, 1965. It was Stadnisky's practice to execute all agreements negotiated within the jurisdiction of District Lodge No. 115 by any of the local representatives. Stadnisky ex- ecutes these agreements whether or not he participates directly in negotiations , and such agreements must first be approved by him for conformance to International requirements. Specifically, with respect to the organizational relation- ship between Local Lodge No. 1518 and District Lodge No. 115, the evidence of record establishes that the Inter- national Association of Machinists comprises the Grand Lodge of the organization. The I.A.M. is organized into district lodges and local lodges. Charters are issued by the executive council of the International to district lodges and the evidence of record establishes that District Lodge No. 115, with the concurrence of the International, is- sued a charter to Local Lodge No. 1518. The only common officer of District Lodge No. 115 and Local Lodge No. 1518 is the general vice president of the territory encompassed within the jurisdiction of District Lodge No. 115. Local Lodge No. 1518 has its own finances but receives financial assistance from District Lodge No. 115. It is the usual practice for collective-bargaining agree- ments between the local lodges and the employers to be signed in the name of District Lodge No. 115.3 Whenever an impasse has been reached between an in- dividual business representative and a company, it is Stadnisky's responsibility to make at least one attempt to negotiate with the company prior to exerting any economic strike action against the particular company.4 4. The bargaining demand By letter to Respondent dated February 26, William Stadnisky notified Respondent that, pursuant to the terms of the collective-bargaining agreement between the parties, the Union was "terminating" the agreement, ef- fective April 30, and was advising Respondent of its desire to meet with Respondent at the earliest possible date prior to March 12, for the purpose of negotiating a collective-bargaining agreement.5 The letter requested that Respondent notify Stadnisky's office when a com- pany representative would be available to "meet with a representative of our organization" for the purpose of negotiating an agreement. On March 4, J. E. Philpot, manager of Respondent's San Leandro operation, directed a letter to Stadnisky ad- vising Stadnisky of the receipt of his February 26 letter, and informing him that the letter had been forwarded to Robert Scolnik, who was authorized to represent the Company in negotiations.° Philpot asserted that Scolnik would be in touch with Respondent in the "very near fu- ture." On March 5, Scolnik wrote to Stadnisky acknowledging his receipt of the February 26 letter and requesting that, in order to assist him in preparations for negotiations, he receive from Stadnisky a "list and detailed explanation of ... new contract proposals." Scolnik further informed Stadnisky that, after reviewing such material, he would contact Stadnisky to arrange a meeting. Thereafter, some 6 weeks later, on April 20, Richard A. Lord, business representative of Local Lodge No. 1518, replying to Scolnik's March 5 letter enclosed three copies of proposed contract provisions. In effect, he requested Scolnik to contact him for the purpose of ar- ranging a collective-bargaining meeting. The Union's contract proposals which accompanied Lord's April 20 letter consisted of a statement, in outline form, of eight proposals or demands.' Additionally, the Union enclosed a detailed wage and classification proposal and a proposal for severance pay. The severance pay proposal provided as follows: In the event the Employer shuts down the plant per- manently, or moves his operation elsewhere, the em- ployees who are on the payroll will be paid three (3) day's pay at the classification rate last worked for each year of service with the employer. On April 22, Scolnik wrote to Richard Lord acknowledging Lord's letter of April 20. In substance, Scolnik questioned the legal propriety and obligation of Respondent to deal with Local Lodge No. 1518, as con- trasted to District Lodge No. 115. Specifically, the letter in pertinent part stated: In my opinion, the Company is legally obligated with District Lodge 115 and not Lodge 1518. We are 3 Collective-bargaining agreements extant between District Lodge No. 115 and a local lodge on the one hand , and individual employers on the other, which bear the signature of a representative of a local lodge are, ac- cording to the credited testimony of Stadnisky, the product of multiple- party collective-bargaining arrangements which involved more than one local lodge and more than a single district lodge. A All of the foregoing is based upon the undisputed and credited testimony of William Stadnisky. Stadnisky further credibly testified that he does not participate in all collective-bargaining negotiations involving local lodges within the jurisdiction of District Lodge No. 115, but further credibly testifies that , when more than one local lodge is involved in negotiations, he does participate. 5 William Stadnisky, at whose direction the letter was written, testified credibly that through clerical inadvertence the letter was dated February 26, 1964. 6 The evidence of record establishes that Robert Scolnik had been retained in lieu of Respondent's former labor relations representative, to represent Respondent in the pending collective-bargaining negotiations. 9 These demands were: a 3-year contract; a substantial wage increase; 5 days sick leave per year; 4 weeks' vacation after 20 years; severance pay; a 5-cent increase in pension plan; a cost-of-living provision; a 10-cent increase in pay for trainee employees. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prepared to receive contract proposals from District Lodge 115 and to meet and negotiate with District Lodge 115. I am sending a copy of this letter to District Lodge 115. I hope that both Unions will state their positions in writing in order to clarify this matter. It is clear that some explanation is necessary before we can proceed. Since this is a legal question of representa- tion, I do not think it is sufficient for the Unions to decide between themselves how they should be han- dled. Scolnik received a reply by letter dated April 26 from William Stadnisky, as follows: Local Lodge 1518 is an affiliated Local of the In- ternational Association of Machinists District Lodge 115, and as such is represented by Richard Lord, a District 115 representative. As I explained to you in our telephone conversation the District represents the lAM by territory and the local lodges are sub- divisions of the District. The employees of Taylor Instrument Company have always been and are members of Local Lodge 1518, District 115, International Association of Machinists. On the morning of April 26, Robert Scolnik received a telephone call from Richard Lord. During the conversa- tion, Lord stated that he had received Scolnik's April 22 letter and stated his objections to the issues raised by Scolnik therein. Lord contended that Local Lodge No. 1518 was the bargaining representative for Respondent's employees, and Scolnik dissented, stating that the current collective-bargaining agreement, by its terms, was with District Lodge No. 115 and made no reference to Local Lodge No., 1518. Further, Scolnik observed that the union-security clause of the current agreement required employee membership in District Lodge No. 115. He further stated that Local Lodge No. 1518 could not cede jurisdiction to represent the employees to another labor organization. However, during this conversation, Lord again requested Scolnik to meet with him and to commence col- lective-bargaining negotiations. In response, Scolnik inquired whether Lord's request was presented in his capacity as a representative of Local Lodge No. 1518 or as a representative of District Lodge No. 115. Lord responded that he was requesting negotiations in his dual capacity as a representative of both entities. Scolnik declined to meet with Lord on that basis. Nevertheless, Lord continued to press for a meeting in Oakland between Scolnik and himself, and, in so doing, stated that it was imperative that Scolnik agreed to do so by the end of that week, or face strike action. While Scol- nik agreed to meet with Lord during the suggested week he ir!sisted, because of other demands upon his time, the meeting be at his own office in San Francisco. Lord declined to meet with Scolnik in San Francisco, asserting that he would meet only in Oakland.8 On the afternoon of'April26, Scolnik conversed with Stadnisky concerning the issues raised by Scolnik in his April 22 letter. Stadnisky explained to Scolnik the 8 Theforegoing is predicated on the credited testimony of Robert Scol- nik. 8 The foregoing is based on a composite of the credited testimony of William Stadnisky and Robert Scolnik. 10 The foregoing is based on a composite of the credited testimony of William Stadnisky and Robert Scolmk. Upon consideration of the testimony of record relating to the conversations between William Stad- manner in which the District Lodge was organized and the negotiating practices of the District Lodge and the participation of the local lodge representative therein. During this conversation, Scolnik objected to meeting with Richard Lord in his capacity as representative of Local Lodge No. 1518, on the ground that Lord had given Scolnik a strike ultimatum, and because he and Lord could not reach an agreement on a mutually con- venient and proper place to hold the meeting. During the conversation, Stadnisky offered in his capacity as a representative of District Lodge No. 115 to meet with Scolnik in Lord's stead. It was tentatively agreed that Scolnik and Stadnisky would meet for the purposes of collective bargaining sometime during the month of May.9 James Philpot credibly testified that, on the afternoon of April 28, he conversed on the telephone with Stad- nisky, and Stadnisky informed him that Scolnik and Lord were having difficulty arranging a place to meet and were in disagreement with respect to the propriety of Lord serving as collective-bargaining agent for the Union. Phil- pot further credibly testified that Stadnisky asked Philpot to meet with him that afternoon but that he declined to do so because it was too late in the day. 5. Contract extension discussed During the telephone conversation between Stadnisky and Scolnik which transpired on April 26, the question of extending the collective-bargaining agreement beyond the April 30 termination date arose. This discussion was in context with the offer of Stadnisky to assume the collec- tive-bargaining task on behalf of the Union and the ina- bility of Scolnik and Stadnisky because of their respective commitments to meet prior to May 1. Scolnik expressed the opinion that upon the April 30 expiration of the con- tract, the health and welfare and pension coverage pro- vided by the agreement would expire. Stadnisky sug- gested that this presented no problem because in prior negotiations these provisions had been extended pending further negotiations. Stadnisky suggested extending the collective-bargaining agreement. Scolnik stated that he preferred to proceed on a formal basis and stated that he would recommend to the Company that, upon specific request from Union in writing, the contract be extended. However, he underscored his desire to have Stadnisky formally request such extension. Stadnisky indicated that he would offer to extend the contract for 1 month. Scolnik invited Stadnisky to make such request in writing and he stated he would confer with the Company with respect thereto. 10 Stadnisky testified credibly that after conversing with Scolnik on this matter he spoke with Philpot by telephone and offered to extend the current agreement for 1 month in order to facilitate negotiating a new agreement. Philpot answered that he would speak with Scolnik concerning this matter and would recommend an extension. By letter dated April 27 Scolnik wrote to Stadnisky summarizing the telephone conversation of April 26 and nisky and Robert Scolnik, and Stadnisky and James Philpot regarding the subject of contract extension, and considering these in context with the demonstrated desire of the Union to achieve an extension of the agree- ment to allow opportunity for contract negotiations, I credit Stadnisky to the effect that on April 26 he suggested to Scolnik the'agreement be ex- tended. TAYLOR INSTRUMENT COMPANIES inviting him to request an extension of the agreement, in writing. Accordingly, on April 29 Stadnisky dispatched a letter to Scolnik requesting an extension of the agreement from May 1 to May 31. By letter dated April 30, Scolnik con- firmed the extension of the agreement in accordance with Stadnisky's request and suggested May 10 as a meeting date.' i He invited Stadnisky to submit a "more detailed" statement of the Union's contract proposals. On May 4, by letter, Stadnisky informed Scolnik that he would be available to commence negotiations on May 13 at any time or place suggested by Scolnik. He requested Scolnik advise him by telephone of the time and place and enclose with his letter specific contract proposals. 6. The May 17 meeting The first meeting between the parties occurred on May 17 at the office of William Stadnisky in Oakland.12 Present at the meeting were Stadnisky, Scolnik, and Phil- pot. The meeting commenced at approximately 10 a.m. and lasted into the noon hour. Scolnik served as principal spokesman for the Company. The initial discussion at the meeting pertained to the relationship between Local No. 1518 and District Lodge No. 115, and the obligation of the Company to enter into a contractual relationship with the Local. Stadnisky characterized this issue raised by Scolnik as a "quibble," and stated his willingness to execute an agreement on be- half of Local No. 1518 or of District Lodge No. 115. Scolnik stated his willingness to enter into an agreement with District Lodge No. 115 and stated that, in this cir- cumstance, the question had been "automatically resolved." However, the discussion of the relationship between the two entities continued. Scolnik asserted that he was concerned as to the identity of the labor organiza- " In the interim Scolnik and Stadnisky had conversed by telephone and they had orally agreed to a 1-month extension of all terms of the agree- ment. 12 William Stadnisky testified that the initial collective-bargaining meet- ing between the parties was held on May 13 at the office of Robert Scol- nik Scolnik and James Philpot testified that the first meeting was held on May 17, and that, although a meeting had been scheduled for May 13, it was canceled. The parties stipulated that between the hours of 1 30 p.m. and 2.45 p.m. on May 13, Robert Scolnik was at the U.S Court of Ap- peals in San Francisco, in the presence of an agent of the Board. In his pretrial affidavit to the Board, Stadnisky, in the first instance, as- serted that the first meeting between the parties was held on May 17 at the office of the Union. He testified, however, that after consulting his ap- pointment calendar he informed the Board agent taking the affidavit that the first meeting was held on May 13 at Scolnik's office, and he caused his affidavit to be changed to reflect this. Also introduced into evidence was a file folder bearing notations which Stadmsky testified were made at the first meeting on May 13 The folder contains a notation suggesting that the notes pertain to a meeting held on May 13 at Scolnik's office A second file folder bearing notes appearing to relate to a second collective-bargaining meeting on May 17 was also identified by Stadmsky and entered into evidence. On the other hand, Scolnik was interrogated concerning notes received in evidence which contain an initial notation indicating they related to a May 13 meeting. In the notes, as introduced at the hearing, the reference to May 13 had been changed by crossing out the numeral 13 and substitut- ing the numeral 17. Scolnik testified that the first several pages of the notes in question constituted an outline devoted to the Union's proposals which, on May 4, had been mailed to the Company, which outline had been prepared in advance of the scheduled May 13 meeting to serve as a discussion guide at the meeting. He testified further that the May 13 meet- ing was canceled and that the notes were used at the May 17 meeting at which time the change of dates was indicated on the outline by crossing 167 tion with which he was negotiating. Stadnisky insisted that Local No. 1518 was the recognized collective-bar- gaining agent. Scolnik requested Stadnisky to produce a collective-bargaining agreement which would reveal Local No. 1518 to be a party thereto. Stadnisky searched his file and produced only a 1948 agreement bearing a signature of a Local No. 1518 representative, designated as such. At this point Scolnik outlined in some detail the objec- tives of the Company's negotiations. He informed Stad- nisky that it was the objective of the Company to achieve a more satisfactory level of wages and to have incor- porated into the agreement a management-rights provi- sion, a no-strike provision, a waiver clause, as well as revised provisions dealing with grievance and arbitration and with union security. As evidencing a need for a no-strike clause, Scolnik referred to a work stoppage in which the Teamsters had engaged at the Company's premises during the summer of 1964. Scolnik asserted that, in view of the Company's experience arising from that work stoppage, it would be necessary to remove the picket line protection portion of the existing clause. 'Similarly, with respect to grievance and arbitration, Scolnik discussed briefly the trend of court decisions in this area of labor relations and asserted that these decisions rendered desirable a revision of the existing grievance and arbitration provisions. With respect to the no-strike provision, Stadnisky responded that, as the Company had not concluded the negotiations with the Teamsters, the objection of the Company with respect to the picket line observance could be met by merging both the Teamsters and Machinists units under a single agreement. Stadnisky indicated his willingness to explore this with the Teamsters and Scolnik stated that he was receptive to such exploratory efforts. In outlining the Company's objectives with respect to wages, Scolnik stated that the Company would not be out the numeral 13 and substituting the numeral 17. At the meeting mar- ginal and explanatory notations were added to the outline Significantly, notes taken by Scolnik and introduced by the General Counsel as Scol- nik's notes pertaining to the May 24 meeting contain a notation in Scol- mk's handwriting indicating the notes relate to the second negotiating meeting between the parties. My study of the first referred-to set of Scolnik's notes convinces me that Scolnik's explanation and characterization of the preparation of the outline and of the notations contained thereon is accurate and I credit him. Moreover, as the testimony of both Stadmsky and Scolnik establishes a meeting was held on May 17, I am convinced that Scolmk's notes relating to the May 24 meeting which characterized that meeting as the second collective-bargaining meeting strongly indicate that no meeting was held on May 13, but that the first meeting was the one held on May 17. Considering the foregoing, the testimony of James Philpot, the stipula- tion of the parties with respect to Scolnik's involvement in a court proceeding on the day in question, and the affidavit of Stadmsky which reveals his initial impression with respect to the date of the first meeting, I conclude and find that the first meeting between the parties was held on May 17 and not May 13, as Stadnisky testified. I am convinced that Stadnisky's error arose from his busy negotiating schedule during the period in question, to which he testified, and from his failure after entering the May 13 appointment in his calendar to enter thereon a notation of the cancellation of the May 13 meeting. While the file folder upon which Stadnisky jotted notes contains certain notations which tend to support his version of this matter, I consider it quite likely, considering all pertinent evidence, that the date notations contained on the two file folders were added not on May 13 and May 17, respectively, but later, not in anticipation of the instant litigation but for internal record pur- poses; and arose from the same imperfect recollection and erroneous reliance on calendar notations as gave rise to Stadnisky's pretrial affidavit error 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD willing to settle for the "area pattern" as reflected in the California Metal Trades Association agreement with the Union, but intended to achieve, over a period of time, a generally lower wage level, although it would provide for an immediate wage increase for all present employees. Stadnisky articulated the Union's objection to such an objective. Regarding the objectives of the Company, Scolnik stated his willingness to "compromise" and "to be realistic" but stated, nevertheless, that the Company desired to achieve the objectives which he had outlined. Scolnik further stated that this did not mean that the parties were negotiating from "scratch" or that the Com- pany was endeavoring to negotiate a completely new agreement. He stated that in seeking to achieve these ob- jectives the Company desired to work "within the framework" of the existing agreement. The discussion turned to the proposals which the Union had submitted earlier by mail. Stadnisky stated that the Union was withdrawing its proposals relating to a 10-percent wage increase for trainees and a cost-of-liv- ing provision; the latter on the basis that it had been in- corporated in the wage proposal which the Union was presenting to the Company. With respect to wages, the Union presented a 31-cent package providing for wage increases over a 3-year period on the basis of a 12-cent-per-hour increase effec- tive May 1, 1965; 9 cents effective May 1, 1966; 7 cents effective May 1, 1967; and 3 cents effective October 1, 1967. Additionally, at the meeting Stadnisky discussed the union pension proposal and gave a cost breakdown with respect thereto. This discussion led to an exchange of views concerning the legality of increased contributions to the pension fund, and the implications with respect thereto arising from the terms of the trust arrangement under which the plan was administered. Stadnisky as- serted that, if the Company desired to remain a part of the trust arrangement, it would be required to make the requested increased contribution demanded by the terms of the agreement, but that, if it desired to withdraw, it could propose a new pension plan in lieu of the existing arrangement. Further, with respect to the Union's proposals, Stad- nisky stated that the Union was seeking a 3-year agree- ment, but would settle for a 2-year contract, or a 1-year agreement. Additionally, as the meeting progressed, the discussion emcompassed the Union's proposals on vaca- tions, sick leave, and severance pay. No proposals were agreed to at the first meeting.13 7. The May 24 meeting The parties met again on May 24. The same three in- dividuals attended the meeting, which commenced at ap- proximately 2 p.m. and lasted for approximately 3 hours. The meeting was held at Scolnik's office. At the commencement of the meeting Scolnik presented Stadnisky with a one-page list of eight prelimi- nary counterproposals. In substance, the eight counter- proposals sought to: 1. Revise section II of the union-security provi- sion of the existing agreement by substituting a provision based upon Section 7 of the Labor- Management Relations Act guaranteeing the right of each employee to join or be a member of, or to refrain from joining or being a member of the'Union; 2. Revise existing section IX pertaining to seniority by providing for a break in continuous ser- vice and forfeiture of recall rights arising from par- ticipation in a strike or a work stoppage in violation of the collective-bargaining agreement; 3. Revise section XI pertaining to strikes and wal- kouts by eliminating the following: Any action of employees leaving jobs for their own protection in cases of a legally declared strike by some other Union working directly on the job, if said strike is sanctioned and approved by the Central Labor Council of Alemeda Coun- ty shall not constitute a violation of this clause of this Agreement. 4. Revise section XIII with respect to grievance procedure and jurisdiction of the arbitrator; 5. Revise section XVII pertaining to matters of general contractual import by deleting subparagraph (d) thereof which provides: All past practices of shop maintenance, invento- ry taking and cleanliness of work areas shall remain unchanged. 6. Revise section XIX with respect to classifica- tions, wage rates, and wage progressions, so that they will be accurately reflected by and consistent with the actual nature of the jobs and work involved; 7. Revise section XXII pertaining to bargainable issues which section provides as follows: During the term of this Agreement, neither party shall make or demand or take any measure to compel or require the other party to bargain or negotiate on any matter previously discussed or not specifically set forth or contained herein. 8. Add a new section to provide for a manage- ment-prerogative clause. Upon being presented with the Company's proposals, Stadnisky studied them. After doing so, he stated that the union-security and no-strike proposals were completely unacceptable to him. However, during the ensuing hour, the parties discussed in detail the Company's counterproposals, ex- clusive of wages. During this segment of the discussion, Scolnik stated the underlying philosophy of the Company with respect to management rights. Stadnisky disputed the need for a management-rights clause, stating that this 13 The foregoing is predicated on a composite of the credited testimony of Robert Scolmk, William Stadnisky, and James Philpot In essential respects the testimony of Robert Scolnik and William Stadnisky is mu- tually corroborative as to subject matter discussed and positions stated by the respective parties. In crediting Stadnisky to the extent revealed by the above findings, I rely on his testimony of events which he erroneously as- cribed as occurring at the purported meeting on May 13. Despite this lapse his, testimony, in this facet, gains credence and support from that of Scolnik and Philpot With respect to the findings above relating to the discussion of the relationship between Local No 1518 and District Lodge No. 115, and relating also to the articulation by Scolnik of the Company's proposals and collective-bargaining positions, I rely principally on the testimony of Scolnik. Although Stadnisky's testimony is not at variance with that of Scolnik, and in most respects tends to support it, it was sub- stantially more terse and abbreviated. I am convinced that Scolnik's testimony accurately depicts these phases of the May 17 meeting. I find, in agreement with Stadnisky's testimony, that the parties achieved agreement on no proposals at this meeting . In so finding, I reject Scolnik's testimony that, at the May 17 meeting, agreement was achieved on the Union's vacation proposals I find rather that agreement on this proposal was achieved at the May 24 meeting. Indeed, Scolmk conceded this may have been the case. TAYLOR INSTRUMENT COMPANIES clause was not generally found necessary by the compa- nies with which the Union had agreements. However, he offered as a management-prerogative clause agreeable to the Union a provision which was contained in an agree- ment the Union had with another employer. This clause provided as follows: The operation of the Company; the introduction of new or improved production methods and equip- ment; and the establishment of procedures, forms, records and controls which do not abrogate or nullify the terms of this Agreement; the direction of the working forces; the right to hire, suspend or discharge for cause; to relieve employees because of lack of work; to transfer employees from one section or duty to another is vested exclusively in the Em- ployer. With respect to grievance and arbitration, Scolnik again discussed the court decisions on this subject with specific emphasis on the need to specify those disputes which would not be subject to arbitration. Stadnisky observed that to his knowledge there had been no grievances between the Union and the Company. He asked Philpot if this were not so and Philpot agreed. Stadnisky then inquired as to the need for a clause of the type Scolnik was proposing. Scolnik answered that the past did not forecast the future. Scolnik stated, however, that, with respect to the grievance and arbitration clause, he would propose a provision for judicial review of any arbitration deci ion, and that his proposal would also contain provi- sion for jurisdiction to enforce a prohibition of a work stoppage pending arbitration. Scolnik stated to Stadnisky that he considered these matters important, but that all of these things were negotiable and were subject to discus- sion. In this respect, Scolnik stated that the Company would submit to the Union within a few days a detailed draft of the Company's grievance and arbitration proposal, and Scolnik invited the Union's counter- proposals and revisionary language which would achieve a mutually acceptable clause. During this phase of the meeting the parties discussed the Company's picket line protection and no-strike proposal. During the discussions Scolnik characterized this as a "must" item so far as the Company was con- cerned, but stated that he would be willing to consider any counterproposal which the Union might care to offer. In this vein, Scolnik stressed that the Company's proposals relating to grievance and arbitration and to management rights did not fall into the category of "must" items, but were of significance and importance to the Company and the Company desired to negotiate con- cerning them. Each of the eight preliminary counterproposals of the Company received some attention at the May 24 meet- ing. However the greatest portion of the meeting was devoted to the discussion of the Company's wage and classification counterproposal Approximately 2 hours were spent in discussing the Company's counterproposal which provided for a revision of existing classifications, wage rates, and wage progression schedule. With respect thereto Scolnik stated that it was the Company's desire to revise the wage schedule to fairly compensate employees for the work they were performing, taking into considera- tion the skills demanded by the particular job involved. In this connection, Philpot observed that it was the objective 169 of the Company to bring its wage scale at the San Lean- dro plant into balance with the wage rates paid at the dif- ferent establishments of the Company throughout the country, allowing additionally, however, for the higher wage rates prevailing in the San Francisco Bay area. Phil- pot stated that the Company did not want to be "tied" to the wage scale reflected in the collective-bargaining agreement between the Union and the California Metal Trades Association or to that in the Union's master inde- pendent contract. The company representatives charac- terized the work tasks which the employees of the Com- pany were performing as "simple and repetitive" in na- ture, and asserted that they required little skill and were easily learned in a short period of time. Stadnisky con- tested this characterization and, in summary form, stated his understanding of the type of skills that were required of the employees at the Company. In connection with this observation Philpot invited Stadnisky to visit the plant and Stadnisky declined. However, with respect to the Company's contention that the wage level paid its employees was above that commensurate with the skills involved, Stadnisky ad- vanced a proposal to invoke the services of a survey com- mittee of the California Metal Trades Association. Scol- nik declined, asserting that the Company was capable of making this determination. Scolnik informed Stadnisky that the Company was unable at that time to submit a detailed schedule of wage rates and job classifications because the Company was then engaged in intensive consideration of this matter and was having a difficult time perfecting a proposal that it considered fair and reasonable under all of the circum- stances. However, Scolnik stated that the Company was prepared to make a wage increase offer for all employees but that it was endeavoring to formulate a wage plan whereby, in the long run, the wage rate would be reduced. In order to achieve this, Scolnik stated that the Company intended to revise the wage schedule and job classifica- tions schedule, making the starting rates of pay lower and providing for longer periods between job progression steps. Scolnik promised Stadnisky that he would present a wage scale and job classifications schedule in the "near future." In connection with Scolnik's statement to Stad- nisky, Philpot informed Stadnisky that under the wage schedule and job classification revision which the Com- pany was considering, the Company would not be im- pelled to hire new employees at the bottom of the wage scale. This invoked substantial discussion and Philpot stated that, in fact, it would be his intention to hire a new employee within the wage progression scale at a particu- lar level which Philpot considered most suitable to the ap- plicant's skill and experience. As the discussion progressed Stadnisky stated his ob- jections to the Company's wage plan and stated that it de- parted from the Union's own proposal which was based on the CMTA schedule. He stated that, even under the Union's wage package, the Company would not compen- sate an electronic technician at the CMTA scale of $3.74 but, to the contrary, would compensate him at a $3.275 level. Additionally, Stadnisky raised the issue which would arise from the potentiality implicit in the Com- pany's wage proposal of two different employees, paid at different rates performing the same job task. Scolnik responded that Stadnisky had raised an important point and that the Company would take this into consideration. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the termination of the meeting no specific arrange- ments were made for a subsequent meeting.'4 8. Further counterproposals submitted On May 27 Scolnik mailed to Stadnisky contract proposals relating to grievance and arbitration, the waiver clause delimiting the parties' bargaining obligation during the term of the agreement, and management rights. The management-rights provision provided as follows: The management of the business and the direction of the working force including, but not limited to, the right to hire, suspend or discharge for just cause, as- sign or transfer employees, lay-off employees because of lack of work, prescribe plant rules, deter- mine methods of performing the work, and to sub- contract or contract work out, including contracting for casual labor to be supplied by any qualified agen- cy under their standard terms, establishing rates for new jobs, determining the qualifications of em- ployees, eliminating, combining or changing jobs or job duties for economic reasons, is vested exclusive- ly in the Company; and the Company retains all rights that it legally had and enjoyed prior to the ex- ecution of this agreement, subject to the specific restrictions or provisions of this agreement. In no event shall any subject matter specified herein as within the rights of management be subject to the grievance-arbitration provisions set forth elsewhere in this agreement. The grievance and arbitration counterproposal of the Company called for a four-step grievance procedure which provided however that antecedent to invoking step one of the grievance procedure, "[a]ny regular employee who believed he has a justifiable complaint concerning his relationship with his Employer shall discuss the matter directly with his supervisor in an attempt to reach a satisfactory settlement or obtain a satisfactory response." 9. Contract extension discussed a. The May 27 conversation On May 27 Stadnisky called Scolnik by telephone and they discussed the approaching terminal date of the ex- tended agreement. Scolnik proposed that the contract be extended for the month of June in order to afford the parties the opportuni- ty to continue negotiations, and stated further that if Stad- nisky would agree to this that he would recommend an extension effective June 1. Stadnisky replied that, whereas the Union was not proposing a 30-day extension, it would agree to such an extension of the agreement provided the terms of any agreement ultimately reached would be made retroactive to June 1, and providing further that the Company would agree to the Union's full wage demands and to the Union's proposed increases in the pension fund. Stad- nisky labeled these as prerequisites to such a 30-day ex- tension, but observed that these were the only items among the eight proposals advanced by the Union at the first meeting which were requisite to union agreement upon an extension of contract. On the other hand, as an alternative, Stadnisky proposed a day-to-day extension of the agreement providing the Company was willing to meet more often and show evidence of good-faith bar- gaining in attempting to resolve the issues before the parties and submit a complete contract proposal to the Union. Stadnisky further stated that, as a condition of a day-to-day extension, the parties were to agree that, if one of the parties to the negotiations should declare that an impasse had been reached, the extension would at that time terminate. Scolnik informed Stadnisky that he did not believe Stadnisky's proposal, conditioned by his basic demands, would be acceptable to the Company, but stated that he would immediately contact the Company's offices in Rochester and present the proposal to company officials. At this time Scolnik repeated to Stadnisky the Union's principal demands, and after doing so stated to Stadnisky 14 The foregoing is predicated on a composite of the credited testimony of Robert Scolruk and William Stadmsky, as supported in minor aspects by that of James Philpot In those instances wherein the testimony of Wil- liam Stadnisky is at variance with that of Robert Scolnik, I credit Scolnik. Specifically, with respect to the testimony of Stadnisky that Scolmk as- serted be could not give a definitive and final answer with respect to the Company's acceptance of union proposals without first obtaining ap- proval of company representatives in Rochester, New York, and his further testimony that Scolnik asserted that he could not offer a complete proposal until such time as the Union had indicated its agreement to the Company's proposal on management rights and union security, I do not credit Stadmsky, but rather credit the denial of Robert Scolnik. Scolmk's testimony in denial of that of Stadmsky on these points is supported by the credited testimony of James Philpot. Moreover, in light of Scolmk's ex- perience in the, field of labor relations, and his patent awareness during negotiations of the potential legal impact of his statements and actions, I find highly improbable the thesis that Scolmk would resort to so flagrant a form of obfuscation. While the affidavit of Stadmsky does tend, in part, to support his record testimony and to refute the countervailing record testimony of Scolnik with respect to the need for Scolmk to clear bargaining matters with Rochester headquarters, and Scolnk's alleged refusal to advance a complete counterproposal for union consideration, the affidavit, like his record testimony relating to many significant aspects of the May 24 meet- ing, is lacking in specificity, detail, and depth I have considered the affidavit of Robert Scolmk, entered into evidence by the General Counsel, with respect to the May 24 meeting and conclude and find upon careful examination that, although no references are con- tained therein with respect to the extensive discussion that occurred between Stadmsky and Scolnik on the question of the Company's wage proposal and with respect to Stadnisky's rejection of the Company's wage proposal, Scolnk's record testimony is nonetheless credible. His affidavit patently does not purport to treat comprehensibly with the entire dialogue or discussion of the May 24 meeting, and his explanation of the prepara- tion and composition of the affidavit is believable. As between Scolnik and Stadnisky, I credit Scolmk. With respect to the counterproposals which, on May 24, the Company submitted to the Union, Scolnik testified credibly that he had discussed them approximately twice prior to negotiations with A. S Dodge, Respondent's vice president in charge of industrial relations, headquar- tered in Rochester, and that during the period prior to the negotiations until June 4, he had exchanged correspondence on perhaps 12 occasions with Dodge. Further, I do not credit Stadnisky to the effect that at the May 24 meet- ing a further extension of the agreement beyond its May 31 expiration date was discussed. Scolmk denies that this was raised at the meeting and Stadnisky's testimony in this regard appears to be based upon conjecture. I am convinced, contrary to Stadnisky's testimony, that the subject of contract extension was raised by telephone on May 27, as found below. Indeed, Stadnisky testified that he initiated a telephone call to Scolmk and called his attention to the approaching termination of the contract exten- sion period The clear thrust of Stadnrsky's testimony is to the effect that he was for the first time raising the issue, and that it had not been the sub- ject of recent discussion. TAYLOR INSTRUMENT COMPANIES that he would recommend to the Company a further ex- tension of the contract on an unconditional basis. He ob- served, however, that he would not himself recommend the Company extend the agreement on the conditions which Stadnisky had specified. He informed Stadnisky, however, that he would attempt to relate to the company officials the proposals which Stadnisky had articulated and would endeavor to answer Stadnisky before the com- mencement of the impending Memorial Day weekend. Stadnisky replied that he was willing to continue negotiations and would be willing to negotiate "around the clock" during the impending weekend in order to reach agreement before the May 31 expiration. Scolnik stated that he would be willing to negotiate at reasonable times but would not agree to negotiate around the clock. 171 This will confirm our telephone conversation of this afternoon. The collective bargaining agreement between Taylor Instrument Companies and IAM District Lodge 115 will terminate on May 31, 1965, in accordance with the extension agreement previ- ously agreed to and by virtue of the absence of any further extension agreed to by the parties. This is the result of the Union's position that it does not want a further extension and will not agree to a further extension except on conditions which, as I have advised you, are unacceptable to the Com- pany. I am of course prepared to continuenegotiations on a reasonable basis at mutually convenient times and places. Please advise me when and if you wish to schedule another meeting. b. The May 28 conversation On the following day, May 28 , Scolnik contacted Stad- nisky by telephone and informed him that he had discussed the Union's extension proposal with company officials and that they had rejected it. Scolnik informed Stadnisky , however, that the Company would favorably consider a further extension of the contract on an uncon- ditional basis, and stated that if the contract were not ex- tended it would expire and that the health and welfare and pension provisions thereof would expire also. The parties reached no agreement on the issue of con- tract extension but agreed tentatively to meet in a collec- tive-bargaining session on June 4. c. The Company's May 28 letter On May 28 Robert Scolnik mailed to Stadnisky a letter confirming their telephone conversation of that after- noon. The letter reads as follows: d. The June 4 meeting confirmed Thereafter, on June 1, Stadnisky contacted Scolnik and the June 4 meeting was confirmed. is 10. The June 4 meeting a. The Company submits wage proposals The parties met again on June 4 at Stadnisky's office. Scolnik and Philpot represented the Company. The meet- ing commenced at 10 a.m. and lasted for approximately 2 hours. At the beginning of the meeting Scolnik submitted to Stadnisky a written wage and job classifications proposal which had been prepared by Scolnik pursuant to his con- sultations with A. S. Dodge in Rochester.16 The written proposal provided as follows: 15 The foregoing findings are predicated upon a composite of the credited testimony of Robert Scolmk and William Stadnisky I am con- vmced that neither recalled perfectly the precise sequence of events sur- rounding the contract extension discussions, and conclude that the recol- lection of each was affected by subjective factors. I am convinced, contrary to the testimony of William Stadnisky, that he and Scolnik conversed together both on May 27 and 28. However, I am further convinced, as Stadmsky accurately testified, that during the May 27 conversation he offered a day-to-day extension of the agreement as an alternative to Scolmk's proposal of a 1-month extension, and that he con- ditioned this offer in the manner found above. The Scolmk letter of May 28 is not inconsistent with this finding I am unable to conclude that Stad- nisky would not have offered an alternative to Scolnik's 1-month exten- sion proposal. Moreover, extension on a day-to-day basis would clearly have added to the Union's strategy of assuring the continuance of negotia- tions without depriving it of the strike weapon, and it is most unlikely that the Union would have willingly proceeded to further negotiations without the assumed protection of viable contract terms, however tentative. On the other hand, I find, both upon a consideration of the contents of the May 28 letter of Robert Scolnik and the testimony of William Stadmsky, that on May 28 no definite arrangement for a June 4 meeting had been reached and that, contrary to Scolmk, there was a further communication between the parties on June 1 perfecting arrangements for the June 4 meeting I finds however, that Scolnik did not in specific terms agree to an extension of the agreement on a day-to-day basis during the June 1 con- versation, or during previous conversations, but that Stadnisky assumed such acceptance was implicit in Scolnik's agreement to meet in collective- bargaining negotiations on June 4. I am convinced that the misun- derstanding arose from an imperfect definition of the status of the expiring agreement following May 31 Indeed, the events of the June 4 meeting and the record testimony reveal a basic misunderstanding in this respect. Further, in light of the cross-examination of Scolnik wherein he was confronted with the fact that his affidavit contained no recital of the al- leged references during the conversation of May 27 to the impending ex- piration of health and welfare and pension benefits, I am convinced that this matter of considerable importance was not discussed during the May 27 telephone conversation in question, but, rather, arose initially during the May 28 telephone call which Scolmk initiated Moreover, I find, contrary to the testimony of Stadmsky, that, during his June 1 conversation with Scolnik wherein the June 4 meeting was for- mally arranged, he did not discuss with him the meeting that he had held, or was to hold, with the employees wherein he was instructed to decline a I-month contract extension and was given authority to strike in the event of a bargaining impasse, but that he communicated this to Scolmk for the first time at the June 4 meeting. 16 James Philpot recalled that he received the written wage proposal from Rochester headquarters. Scolnik testified convincingly that he con- sulted with Dodge concerning the wage proposal, and all other proposals presented, but that he prepared the actual wage proposal submitted, I credit Scolmk.' Philpot demonstrated a bona fide lack of certitude with respect to the origin of the proposal and Scolnik testified in contradiction of Philpot in stated recognition that he was doing so I perceive no reason to attribute to Scolmk a purpose and motive to deceive with respect to this issue but, to the contrary, find he testified truthfully concerning a matter about which he had superior knowledge. The source of clerical prepara- tion of the wage document neither adds nor detracts from Scolnik's other- wise candid and credible testimony regarding the extent of his advisory and negotiating authority vis-a-vis Rochester headquarters, and it is not likely in the circumstances that he would purposely contradict his own witness except in the interest of factual accuracy 172 Section XIX. DECISIONS OF NATIONAL CLASSIFICATIONS AND RATES OF PAY Basic Straight Time Hourly Rates effective June 1 June 1 June 1 1965 1966 1967 First 6 months 2.50 2. 55 2.60 Second 6 months 2.55 2.60 2.65 Third 6 months 2.65 2.70 2.75 Fourth 6 months 2.80 2.85 2.95 Fifth 6 months (Maximum for Restricted Class) 2.95 3.00 3.05 Sixth 6 months 3.10 3.15 3.20 Thereafter 3.325 3.375 3.425 If any individual is designated by the Employer as a "leadman, " he shall receive a differential of ten per- cent (10%) above the rate established for Instrument Mechanics. No present employee shall suffer a reduction in his hourly rate of pay because of the adoption of this Agreement. After studying the proposal for a period of time, Stad- nisky stated that it was not acceptable and added that the Union would not accept the wage proposal because it was less than the "area pattern." There followed a lengthy discussion of the Company's wage proposal. With respect to the wage proposal, Scolnik stated that the Company had spent much time in working out a proposal which would achieve the Company's overall ob- jectives and at the same time be fair to employees. Scol- nik informed Stadnisky that under the Company's proposal all present employees would receive a 5-cent- per-hour raise during each of the 3 years of the agree- ment. There followed a discussion of the comparative job classifications and wage rates encompassed under the Company's proposal , on the one hand , and those in ex- istence under the CMTA agreement and the Union's Master Independent Agreement, on the other. During this exchange, Stadnisky observed that the Company's proposal provided for wage increases of less than half of those which the Union was seeking. Stadnisky observed that the Union was seeking 31 cents per hour whereas the Company was offering 15 cents. Stadnisky further as- serted that one of the proposed starting rates was lower than that paid shop janitors under the standard union con- tract. He also addressed himself to the comparative rates of the Company's proposal and of other agreements to which District Lodge No. 115 was a party. He stated that the Union could not accept the Company's proposal. At this point in the discussion Philpot renewed his in- vitation to Stadnisky to visit the plant. Stadnisky replied that this would not be necessary as he had conversed with the employees concerning the nature of the work being performed at the plant. However„ Stadnisky again advanced his earlier sug- gestion that the issue of proper wages and classifications LABOR RELATIONS BOARD could be resolved by resort to a third, neutral person who would make a study and formulation of the nature of the work. An exchange of views in this regard ensued with Scolnik observing that resort to an entity of the CMTA would not be proper because the Company was not a member of that organization. Scolnik suggested that if any study were undertaken it should be by an independ- ent organization. Stadnisky then suggested that the parties utilize the service of an individual appointed by the American Arbitration Association. Scolnik stated that he felt this was a reasonable suggestion and would like to consider the matter and discuss it with company officials. The scope of Stadnisky's suggestion was then ex- plored, principally with respect to the finality or binding nature of any recommendation that would be forthcom- ing. As the discussion turned again more directly to the sub- ject of the Company's wage proposal, Stadnisky observed that the Union was amenable to agreeing to lower starting rates on the condition that the Company would agree to the full union wage demands for the existing employees in the "top category." Scolnik stated that this approach was not satisfactory and reiterated the overall objective of the Company in trying to reduce wages in a departure from the area pattern concept. Scolnik emphasized that the Company was endeavoring to decrease wages while at the same time granting a wage increase to employees. He reiterated that in this regard the Company was proposing a 15-cent-per-hour increase to all employees. However, Stadnisky stated that he was unable to agree to this proposal and again emphasized that the Union had to have "the full CMTA settlement." In this connection, Stadnisky stated there was "no room for bargaining" on the matter of wages. Scolnik replied that he thought there was room for compromise and observed that the Union was requesting a 31-cent-per-hour raise , whereas the Company was offering 15 cents per hour. He stated that in order to reach an agreement on a contract , the Com- pany was "prepared to come up some from [its] offer," but he further observed that it would be necessary for Stadnisky to indicate his willingness to modify his wage demands. Stadnisky answered that he was not going to depart from the offer that was on the table unless the Company made some acceptable counteroffer. b. Health, welfare, and pension coverage discussed At this point in the meeting, Scolnik stated that he would agree to the Union's health and welfare and pen- sion proposal if the Union would accept the Company's wage proposal. Stadnisky declined, but this led Stadnisky to inquire if the Company were continuing health, wel- fare, and pension coverage for the employees under the 1965 contract. Scolnik answered that it was not the Com- pany's intention to continue the coverage because the contract had expired. He further stated that this was in accordance with the Company's previously stated posi- tion which had been explained to Stadnisky on previous occasions. Scolnik stated that the Company's position in this regard had not changed. Stadnisky replied that, in fairness to the employees , they should continue to have the protection of the benefits if they continued to work, and asserted that he would not have met with the Com- pany in this negotiating session if it had not been un- derstood that the collective-bargaining agreement had been extended. Scolnik answered that the Company was TAYLOR INSTRUMENT COMPANIES also concerned over the welfare of its employees and ac- cordingly would like to continue the health and welfare coverage. Scolnik observed that it was for this reason that he had requested and was continuing to request an exten- sion of the contract. There followed a detailed discussion of the welfare and pension payments and the extension of the contract. The discussion lasted for approximately 30 minutes during which time Scolnik propounded the Com- pany's legal position with respect to continuing health, welfare, and pension coverage in the absence of a collec- tive-bargaining agreement. Scolnik stated that the problem could be resolved by a further extension of the contract, observed that the Union had agreed to one ex- tension, and stated the Company's willingness to again extend the contract. Stadnisky stated, in reply, that he was willing to agree to a further extension of the contract but only on condition that the Company immediately ac- cept the Union's full wage demands and its request for in- creased contribution to the union pension fund. Scolnik rejected these conditions and stated that the Company was willing to agree to an unconditional extension of the contract, and further stated that he would recommend to the Company that such unconditional extension be made retroactive to June 1 so that there would be no break in the continuity between the termination date of the original extension and the new commencement date. Stadnisky stated that he would not agree to an uncondi- tional extension and stated that he wanted to be free to declare an impasse whenever he saw fit. During the discussion of the current status of coverage accorded em- ployees under the health and welfare provisions, Scolnik asserted that the quarterly payment to the fund was due on June 10 and that the employer would become delinquent under the provisions of the agreement on June 20. He stated that until June 20 the employees would be covered. Scolnik further asserted that, if the Union would agree to an extension of the contract by June 20, it was his opinion that the employees would be covered as of June 4. Scolnik stated, however, that, if the contract were not extended by June 20, the Company had no intention of making further payments. He asked Stadnisky to con- sider the Union's position in this regard but requested that he not wait until June 19 in order to declare the Union's position. At this juncture, Stadnisky stated that he had explored with the employees the question of whether he should further extend the contract and the basis for such exten- sion, and observed that he had been instructed by the em- ployees not to agree to a further extension except under conditions which he had previously stated.17 There then followed an assessment of "fault" for any lapse in health and welfare coverage, but the discussion on this point ter- 17 I find that on June 1, Stadnisky met with the employees and was in- structed not to agree to a 1 -month extension , and was given strike authorization in the event of a bargaining impasse 11 When confronted with his affidavit on cross-examination at the hear- ing, Scolnik appeared to concede that his affidavit failed to lend support to his testimony of record regarding verbal assertions at the June 4 meeting of the Company's willingness to negotiate all counterproposals A careful reading of the affidavit reveals support of Scolnik's record testimony that during the June 4 meeting assurances were given Stadmsky to this effect is The foregoing findings are based principally upon the credited testimony of Robert Scolmk. I also credit the testimony of William Stad- nisky and James Philpot to the extent that it is consistent with the above findings The testimony of Stadnisky concerning the salient events of this crucial 2-hour meeting - the discussion of wages, contract extension, and health 173 minated with Stadnisky offering a day-to-day extension of the agreement in order to obviate the lapse of the health and welfare coverage, and with Scolnik insisting upon an unconditional extension of the agreement. c. Company urges compromise of wages At approximately this point in the meeting, Scolnik ob- served that the Company was willing to compromise and stated his belief that the parties could reach an agreement on wages if sufficient effort were exerted. He stated his conviction that if the wage issue were resolved, other is- sues would be similarly resolved. He stressed, however, that the Company's offer of a wage increase was contin- gent upon the Union's acceptance of revision of the strike clause and arbitration clause and inclusion of a manage- ment-rights clause. He stated, however, in amplification of the Company's position, that the Company was not in- sisting on specific language and expressed his conviction that "workable" provisions could be negotiated if the parties could agree on wages. He emphasized that all is- sues were negotiable but that closing the "loophole" in the no-strike clause was a "must" item so far as the Com- pany was concerned.18 d. Impasse declared In reply Stadnisky stated, in effect, that, if the Com- pany were unwilling to accept the Union's wage proposal, it would not be useful to neogtiate further. As the discussion evolved, Scolnik asked Stadnisky the Union's position with respect to the Company's proposals on management rights, grievance, arbitration, and the waiver clause. Stadnisky stated that he was re- jecting each of them. Stadnisky further stated that he was rejecting all of the Company's counterproposals and Scol- nik replied that he was rejecting all of the Union's proposals, but stated his willingness to continue to negotiate. Stadnisky replied that an impasse had been reached. Scolnik inquired whether this meant that a strike would be called, and he asked Stadnisky whether the Union would give the Company advanced notice with respect thereto. Stadnisky answered that he would not in- form Scolnik of his plans and stated that he considered himself free to do whatever he thought was right. Stad- nisky observed, however, that, concerning the strike, it would not "take any longer to get the men out on strike than I can reach for my telephone." Scolnik objected to Stadnisky calling an impasse and to the termination of the meeting. However, the negotiations terminated on this note. As the meeting ended Stadnisky endeavored to reach Ernest Streeter, the Union's steward at the plant, by telephone.19 and welfare payments - impressed me as singularly conclusionary and purposefully terse and abbreviated as protection against the potential pit- falls of a full accounting of details and nuances of discussions about which he retained no full recollection and which were strongly influenced by his subjective, preconceived interpretation of the bargaining objectives and intentions of the Company's representatives On the other hand, while his personal involvement in the negotiations rendered Scolnik similarly vul- nerable to subjective influences, he testified forthrightly and in detail con- cerning the events of the meeting. While I am convinced that facets of his record testimony, hereinafter discussed, were influenced subconsciously by hindsight impressions deriving from close involvement in trial prepara- tion, on balance and in the main , I find the testimony of Scolnik is a more reliable basis on which to predicate findings with respect to this meeting than that of Stadnisky. (Footnotes continued on following page) 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. The Union initiates strike action Stadnisky testified credibly that, within a few minutes after the termination of the June 4 collective-bargaining meeting, he placed a second telephone call to Respond- ent's plant in an effort to reach the Union's shop stewart. Failing to do so, he instructed Richard Lord, business representative of Local No. 1518, to go out to the plant and notify the employees that a stalemate had occurred and that the contract was no longer in effect through extension but had terminated. He further credibly testified that the employees had voted to strike in the event a stalemate in negotiations occurred. He further credibly testified that the strike of June 4 was called at his direction. (Footnotes continued from preceding page) Specifically, I find, contrary to Stadnisky's testimony, that, in present- ing and discussing the Company's wage proposal, Scolnik did, as he testified, inform Stadmsky that the Company was proposing a 5-cent-per- hour raise, totaling 15 cents per hour over the life of the 3-year contract, for all present employees, including those who had not reached the proposed 3-year level of service. Scolnik's testimony in this regard is sup- ported by that of Philpot and by recordation in his notes of the June 4 meeting Moreover, his own explanation of the Company's willingness to temper its long-term wage objectives to the extent of giving immediate in- creases to existing employees, and the notation on the written wage proposal presented at the June 4 meeting to the effect that no employee would suffer a decrease in wages, strongly counters the thrust of Stad- nisky's testimony that the Company was, in fact, intending to reduce the compensation of employees who had not reached the 3-year employment level. Additionally, I do not credit the testimony of Stadmsky to the effect that, when requested by Stadnisky to reveal the extent of the Company's counterproposals to be offered, Scolnik refused to do so until the Union accepted those previously submitted Scolnik and Philpot testified con- vmcmgly to the contrary, and there is an absence of convincing record evidence revealing such rigidity of position on the part of the Company, either in regard to its original approach to the collective-bargaining table or with respect to its concept of its bargaining obligations, as revealed by its conduct during the two previous meetings . Moreover, Scolnik con- vincingly testified that throughout the June 4 meeting he underscored the Company's willingnes's to explore areas of mutual agreement and ac- cented his conviction that, if wages could be resolved, a complete accord could be reached. I am convinced that Scolnik was too experienced and knowledgeable in matters of labor relations to have so blandly enmeshed himself in so flagrant a species of bad-faith conduct as attributed to him by Stadnisky I am convinced that Stadnisky erred in his record testimony in this regard I think it quite likely, however, that in reconstructing the events of June 4 Stadmsky confused in his own mind Scolmk's alleged precondition to the advancement of further counterproposals with the position which Scolnik articulated regarding the circumstances under which the Com- pany was submitting its wage proposal providing for annual wage in- creases for each of the existing employees . In this regard, I find , in sub- stantial agreement with Stadnisky's testimony, that Scolnik offered the Company's wage proposal upon the condition that the Union accept the Company's earlier submitted proposals relating to grievance and arbitra- tion , waiver, and management rights Stadnisky's testimony in this respect gains independent substantiation from Scolnik's letter of June 7 wherein he purports to summarize the pertinent events of the June 4 meeting. In construing Scolnik's June 7 letter in conjunction with his record testimony, and that of Philpot , I find no warrant in the assertion implicit in Stadnisky's testimony that the Company was insisting at the June 4 meet- ing upon a per se acceptance of the Company's earlier submitted counter- proposals, as drafted- Rather, construing the letter in conjunction with Scolnik's credited testimony , I conclude that the Company was endeavor- ing to prevail upon the Union to accept the substance of these proposals as contrasted to the letter of the proposals . Thus, to the extent that Stad- msky's testimony implies that Scolnik was refusing to negotiate further concerning wages until and unless the Union accept, as drafted, all com- pany proposals on the table at that point in the negotiations , I reject Stad- nisky's testimony Moreover, I do not credit the testimony of William Stadmsky on direct examination, as amplified and modified on cross-examination, to the effect that, in discussing the Union's earlier submitted proposals for severance 12. The June 4 strike a. The strike commences At approximately I p.m. on June 4, Richard Lord, by telephone, contacted Ernest Streeter, shop steward of the Union, at his place of work at Respondent's plant. Lord informed Streeter that he would be out to the plant to see the employees within an hour. Lord appeared at the plant and instructed Streeter that he desired to meet with the employees outside the plant building. As a result- of the meeting the employees in the unit established a picket line and commenced a strike.20 Four of the strikers who be- longed to the Union had, at times not specified in the record, prior to July 15 returned to work.21 pay, Philpot asserted the proposal "might be acceptable to him" if the Union would "back out of the picture." Philpot and Scolnik testified con- vincingly that Philpot did not make the statement attributed to him, or any similar statement. I credit them, Contrary to the General Counsel, I do not consider Scolnik's interrogation of Stadmsky on cross-examination as to the possible jocular nature of Philpot 's purported statement, to con- stitute a tacit admission that the statement occurred, but rather view the cross-examination conducted by Scolnik as a time-honored technique of seeking to extract concessions and amplifying statements which would more fully define and portray the precise setting and circumstances of pur- ported, foreseeably, adverse conduct. However, with respect to the testimony of Robert Scolnik, I conclude , upon a careful consideration of Scolnik's testimony on cross -examination and the contents of his pretrial affidavit to the Board, that, contrary to Scolnik's testimony, the June 4 meeting did not commence with a discussion of the question of contract extension and the status of health and welfare provisions, but that, rather, these subjects entered the discussion as found above . However , I am con- vinced , upon close evaluation of 8colmk 's testimony on direct and cross- examination, that his pretrial affidavit regarding this testimony accurately reflects the discussion that did later transpire at the meeting concerning these subjects, as found herein The testimony of Stadnisky and Philpot confirms these subjects entered the dialogue of the meeting, but neither testified convincingly in depth concerning the actual exchange that oc- curred. In finding that Scolnik was mistaken with respect to the entry of this subject matter into the discussion of the June 4 meeting , I am convinced that his affidavit to the Board more accurately reflects the circumstances under which this discussion entered the discussions at the June 4 meeting. I am convinced, in this respect, that his record testimony given at the hearing in the instant proceeding was tempered by subjective considera- tions which arose from his extensive trial preparation In like regard, I am convinced that Scolnik also erred in his record testimony in testifying that as the meeting neared its termination Stadnisky posed a series of questions with respect to the Company's willingness to accept the Union's proposals, includmg wage demands and increased pension payments. I draw no adverse inference from the refusal of Robert Scolnik on cross-examination to testify concerning the existence, nature, and content of communications between himself and A. S. Dodge , specifically with respect to policy , strategy, positions, proposals , and counterproposals in the negotiations . On direct and cross-examination, Scolnik had alluded to consultation with Dodge concerning matters pertaining to the negotiations but did not testify concerning the content of any of the communications. When requested on cross-examination and by the Trial Examiner to do so, he declined invoking the attorney-client privilege on behalf of Respond- ent. In the circumstances, in light of the restricted nature of Scolmk's testimony alluding to the communications which he had with Dodge, I conclude upon a review of the record, contrary to my ruling at the hearing, that the privilege attaching to such communications was not waived by Scolmk and that no adverse inference arises from his declination . Baird v Koerner, 279 F 2d 623 (C.A. 9); People v. Kor, 129 C.A. 2nd 436; Wit- kin, California Evidence, 478-479, Rule 39, Uniform Rules of Evidence, 2 Wigmore, Evidence § 286 (3d ed 1940), 8 Wigmore , Evidence § 2322 (3d ed 1940), Estate of Carpenter, 94 Cal. 406. 20 The foregoing is predicated on the credited testimony of Ernest Streeter. 21 William Stadnisky and Donald Powell so testified. Powell further testified without contradiction that employee Escobel did not belong to the Union TAYLOR INSTRUMENT COMPANIES b. Scolnik converses with shop steward In the meantime, prior to the exit of the employees from the plant and the commencement of the strike, Scol- nik conversed with Streeter. According to the credited testimony of Robert Scolnik he approached Streeter in the plant and asked if he were the shop steward. Streeter answered in the affirmative. Scolnik then informed Streeter that Business Representative Lord had entered the plant illegally. He said that Lord had committed trespass against the plant by entering the shop area without permission of the Company and against the ex- pressed wishes of the Company that he not do so. Scolnik stated to Streeter that this was illegal. Scolnik further in- formed Streeter that while the employees had a "perfect right" to strike, they should do so in a legal manner.22 13. Final bargaining efforts a. Company states willingness to bargain On June 7 Scolnik directed a letter to Stadnisky which Stadnisky received in the due course of the mails. The letter confirmed the existence of an impasse in negotia- tions and stated the Company's willingness to continue negotiations. In further pertinent part the letter read as follows: ... Although the Company offer of a wage increase still stands, it is conditioned, as previously indicated, upon the Union's acceptance of all other Company proposals including in particular revision of the no strike clause, revision of the arbitration clause, and addition of a management rights clause. As was previously indicated, the Company is prepared to continue negotiations for the purpose of reaching a mutually satisfactory agreement on a new collective bargaining contract. Please advise me when the Union is ready to recede from its present intransigent position. As soon as the Union wishes to break the impasse for submitting new proposals, arrangements for a future meeting can be made. When and if you wish to submit a new offer or new proposals, please advise me of the details in writing so that the Company will have an opportunity to study them and prepare to discuss them prior to the scheduling of another meeting. b. Union efforts to resume bargaining Stadnisky credibly testified that after receiving Scol- nik's June 7 letter, he placed a telephone call on June 9 to Scolnik's office. He was unable to reach Scolnik but left a message for Scolnik requesting that Scolnik return his telephone call. Scolnik did not do so. Stadnisky further testified that on five or six occasions he initiated telephone calls to Scolnik in an effort to revive negotiations . I find on the strength of his testimony 22 Streeter testified that in approaching him on this occasion Scolnik in- formed Streeter that the employees could not go out on strike, that they did not have a contract, and that the strike was illegal According to Streeter, Scolnik informed him that the employees had no right to leave their jobs. While the testimony of Streeter was not shaken on cross-ex- amination, so neither was that of Scolmk denying the remarks attributed to him by Streeter. Scolnik credibly explained the reason for his presence at the plant and his visit to the work area of the plant, and he testified con- vincingly with respect to the extent of his statements to Streeter on the oc- casion in question. Further, I am convinced that in the developing dispute between the Company and the Umon, with its patent potentiality for un- 175 and the supporting testimony of his then secretary, Patricia Johnsrud, that between the inclusive dates of June 9 and July 12, Stadnisky did, on five occasions, en- deavor to contact Scolnik but was unable to reach him and received no return call, although such request was made of the person answering Scolnik's business phone. 23 Scolnik, on the other hand, denies that he received any telephone messages from his secretary relating to possi- ble telephone calls placed by Stadnisky or his secretary. He testified further that his telephone message file cover- ing the pertinent period contained no such telephone message slips. I am convinced that Scolnik is in error in testifying that during the period in question he received no telephone calls from Stadnisky's office. The testimony of Patricia Johnsrud and Stadmsky is strongly and convincingly to the contrary, and it is most unlikely that the Union, hav- ing envoked economic pressure against the Company in the form of a strike and picket line in order to bring pres- sure to bear in support of its collective-bargaining objec- tives, would remain otherwise passive during this impor- tant period by failing to seek a renewal of negotiations designed to achieve a collective-bargaining agreement which was so essential to its continued effective represen- tation of the employees which it represented. Stadnisky credibly testified that on June 10 he con- tacted the Federal Mediation and Conciliation Service. A composite of the credited testimony of Stadnisky and Scolnik reveals that the FMCS endeavored to arrange meetings between the parties in mid-June and mid-July. Meetings were scheduled but the Company was not represented. In substance, Scolnik credibly testified that he received a telephone call from a commissioner of the FMCS in mid-June indicating the commissioner's desire to arrange a meeting between the Company and the Union for the purpose of endeavoring to settle the strike that was then in effect. Scolnik informed the commis- sioner that he did not wish to engage in mediation but was willing to engage in bargaining negotiations and would do so upon request of the Union. He urged the commissioner to give him ample notice if any meeting were arranged, and stated that he would attend as a "courtesy." Following several telephone conversations with representatives of the FMCS, Scolnik did receive a tele- gram from FMCS at his office on the morning of a scheduled June meeting to be conducted by the FMCS. Scolnik credibly testified that the telegram arrived ap- proximately 30 minutes before the scheduled commence- ment of the meeting. He further testified that he did not attend but, rather, contacted a FMCS commissioner by telephone and was informed that the telegram had been sent in error. He further credibly testified that in mid-July he received another telegram informing him of a scheduled meeting. He received the telegram a few days prior to the date of the scheduled meeting and he again contacted the FMCS and informed the representative to whom he spoke that the telegram did not constitute suffi- fair labor practice litigation, Scolmk would not so blandly misinform Streeter as to the basic legal rights of the employees to undertake economic action against the Company. Rather, I am convinced that Streeter's testimony arises out of an imperfect recollection of the conver- sation, and was affected by his own subjective understanding of Scolmk's reference to the need for employees to conduct their strike in a "legal manner " 23 Scolnik conceded on direct examination that he received a telephone call from Stadnisky on July 2, but that the telephone call was one of which Stadnisky placed to him in answer to his own earlier call to Stadmsky, and that the telephone conversation related to a matter not here relevant. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cient notice and that the scheduled meeting conflicted with a previous business commitment. Scolnik credibly testified that he received no further communications from the FMCS concerning this matter. William Stadnisky further credibly testified that on July 13, during a conversation with Robert Scolnik in connec- tion with another matter, he suggested that the parties should endeavor to "get together " and attempt to resolve the contract negotiations between the Company and the Union. Scolnik replied that he would "let [Stadnisky] know," but did not thereafter contact Stadnisky concern- ing the matter. 14. Strikers seek reinstatement answer as to his employment possibilities and requested Streeter to accompany him outside the office. When Streeter and Philpot arrived outside the office Philpot asked Streeter why he had not returned to work sooner, pointing out that four other employees had returned to work. Streeter stated that he had contemplated returning and had returned that day after deciding that he would desire to seek employment and sign the forms.24 At this point Philpot informed Streeter that he had hired "outside help" and declined to discharge or lay them off in order to return Streeter to work. However, Philpot stated that when an opening occurred he would contact Streeter. Streeter has not been contacted by a representative of the Company. The parties stipulated that eight employees comprised the bargaining unit here alleged as appropriate . Stadnisky credibly testified that pursuant to telephonic requests of employees , he met on July 15 with seven employees, in- cluding four who had returned to work. At the meeting employee Brown inquired whether the Union would take any action against the four employees who had returned to work. Stadnisky informed the seven employees present that, as the employees had made the determination to strike, they should of their own volition decide whether or not to return to work. Stadnisky assured the employees that this decision was one for them to make. On or about July 15, strikers Powell and O 'Callaghan went together to the company offices and conversed with Philpot. They asked Philpot if they might get their jobs back and if the Company had any work for them. Philpot inquired if they were seeking to return unconditionally. When asked by the employees what he meant he stated that he was endeavoring to determine whether the em- ployees were seeking to return to work under conditions that prevailed on June 4. In this conjunction , Philpot in- vited Powell and O'Callaghan to submit "something in writing" to the effect that they were willing to return to work unconditionally. The employees , who indicated their awareness of the forms which other employees had executed as a prelude to their return to work , inquired whether it were necessary for them to execute the forms. Philpot indicated that it would be "a good idea." Powell and O'Callaghan were further informed that the Com- pany had hired replacements and that the execution of the forms, would not guarantee their return to work . Philpot did not comment on the present availability of work. Powell and O'Callaghan declined to execute the forms and left the premises. Thereafter, at the end of July, O'Callaghan returned to the company premises inquiring about his vacation pay. On this occasion he asked Philpot whether there was work available for him and Philpot stated that he had no openings. In the meantime , during the week ofJuly 23, according to the credited testimony of Ernest Streeter , he went alone to the plant and conversed with James Philpot in Philpot's office. He asked Philpot if there was any chance of "getting his job back," and Philpot requested him to sign two 'separate forms. He signed one which contained a paragraph committing the signatory to a willingness to return to work unconditionally under the conditions prevailing on June 4. After Streeter had signed the form, Philpot stated that he could not give Streeter a definite 15. Final negotiating efforts On September 2 Scolnik directed correspondence to John Byrnes, grand lodge representative of the I.A.M. The letter read as follows: I understand that you have filed an unfair labor practice charge in behalf of District Lodge No. 115 and Local Lodge No.1518 against Taylor Instrument Companies, alleging a refusal to bargain under Sec- tion 8(a)(5) of the Labor Management Relations Act. Although I have not as yet received any notice of this matter from the National Labor Relations Board, I cannot conceive of any factual or legal grounds upon which this can be based. As you must know, the Union , on June 4, 1965, declared an impasse, broke off negotiations and called a strike without advance notice . Since that time the Company has not heard from the Union, strikers have returned to work , the picket line has been removed and the employees have filed a decer- tification petition with the National Labor Relations Board. In view of the foregoing , I feel that it is incumbent upon you to advise me whether the Union still claims to represent a majority of employees in this bargain- ing unit, whether the Union is currently demanding recognition as bargaining agent , and whether the Union is seeking to resume collective bargaining negotiations at this time. Please reply by return mail so that the Company will know what the Union 's position is and can act accordingly. On September 13 Byrnes replied to Scolnik , in per- tinent part , as follows: I can assure you that our Union still considers itself as the recognized collective bargaining agent and has and is requesting resumption of collective bargaining negotiations. Conclusions For a decade, commencing in 1955, District Lodge No. 115 and Respondent had been parties to a series of collec- tive-bargaining agreements , covering employees in an ad- mittedly appropriate collective-bargaining unit. During that extensive period, the collective-bargaining relation- ship had been an essentially harmonious one, including voluntary recognition of the I.A.M. by the Company. Over the years , the Company had adopted the wage scale 24 Streeter testified that he had learned of the forms from the employees who had, earlier returned to work TAYLOR INSTRUMENT COMPANIES established as the area pattern under the negotiations conducted between the I.A.M. and the California Metal Trades Association. On February 26, under the terms of the existing collective-bargaining agreement, which was due to expire on April 30, the Union notified the Com- pany of its desire to terminate the existing agreement and to enter into collective-bargaining negotiations looking toward the consumation of a new agreement. The Com- pany responded in a timely fashion and requested the Union to submit its proposals. Two weeks elapsed before the Union submitted, through an official of Local No. 1518, an outline of its proposals. In the interim, preparatory to entering into negotiations with the Union, Respondent had employed as counsel and labor relations advisor, Robert Scolnik, who had not represented the Company in prior contract negotiations with District Lodge No. 115 or with Local No. 1518. Similarly, Local No. 1518 had become represented by Richard Lord who had not previously dealt with the Company in a collective-bargaining context. The record establishes a policy determination on the part of the Company, contrary to past practice, no longer to adopt as its own the area wage pattern, and to achieve through separate negotiations with the Union, a realign- ment and downward adjustment of its wage scale. Addi- tionally, the Company resolved through negotiations to modify the strike provision of the agreement to give it added protection against so-called sympathy picket line activity. If not explicitly, at least implicitly, the record reveals that in furtherance of the redefined policies and objec- tives, the services of a new collective-bargaining representative were obtained, and those of its previous collective-bargaining advisor discontinued. To achieve the two objectives of modified wage scale and revised strike clause, the record as a whole convinces me that the Company entered negotiations with the Union, not in a spirit of intransigence but with the deter- mination that, in order to achieve its two objectives, its past policy of passivity in accepting jointly negotiated contract terms must give way to a strategically more tena- cious mode of negotiating. I am similarly convinced that the Union, apprised of the Company's selection of a new labor relations advisor, concluded that company negotiating procedures would not follow past form, and determined to counter by minimizing the opportunity for frequent negotiations be- fore the contract renewal deadline, and by maximizing the potential impact of a strike threat in context of the economic realities associated with rapidly approaching expiration of the collective-bargaining agreement. Indeed, rather than establishing company-caused delays in coming to the bargaining table, the evidence establishes the Union took little initiative in pressing for immediate and frequent bargaining sessions during April prior to the April 30 expiration of the then current agree- ment, and was similarly passive during May under the ex- tended contract. zs The relationship between Local Lodge No. 1518 and District Lodge No. 115 is clearly, upon facts found above, such as to render semantical the claim of Respondent that District Lodge No. 115 did not at material times represent a majority of the employees in the unit. Moreover, although four of the seven employees comprising the unit had returned to work by July 15, they, and three others who had not, sought and were granted a meeting with Stadnisky for the purpose of discussing the Union's policy regarding possible penalties to be assessed 177 There is, on this record, no convincing evidence of the Company's refusal to enter into timely negotiations with the Union prior to the first meeting on May 17. Scolnik's late April objection to a meeting with the Board in Oakland was reasonable in light of the existing demands upon his time, as was Philpot's declination during the same late April period to accept Stadnisky's ad hoc, offhand invitation to meet with him on only a few hours notice. Nor, with respect to the issue of Respondent's bargain- ing obligation vis-a-vis Local No. 1518, does the record evidence establish more than a portrait of overdrawn literalness and legalism on the part of Scolnik in this, his initial representation of Respondent. Lacking full insight into the bargaining relationship between the Company and Local Lodge No. 1518, and desiring in his initial bar- gaining effort on behalf of the Company to proceed cau- tiously, Scolnik, in retrospect of later revealed facts, at- tached too great a significance to the literal terms of the existing collective-bargaining agreement and too little to the actualities and legal effect of the relationship between District Lodge No. 115 and Local Lodge No. 1518. But the evidence of record does not establish a purpose by Scolnik to delay negotiations, and Scolnik willingly and timely entered into negotiations with Stadnisky. In raising the issue of the relationship of the Local to the District Lodge at their first meeting, Scolnik did not im- pede the progress of negotiations nor invoke the issue in a manner designed to undermine the collective-bargaining process. No inference of bad faith is thus warranted. However, I find upon the evidence of record that this relationship clearly vested Local No. 1518 with statutory authority to represent Respondent's employees in the ap- propriate bargaining unit here involved, and vested Richard Lord with statutory authority to negotiate on be- half of those, employees. I further conclude that the issue raised by Scolnik was, upon the facts subsequently developed, without legal validity. I find that District Lodge No. 115, Local Lodge No. 1518 constitutes the duly authorized collective-bargain- ing representative of the employees of Respondent in an appropriate bargaining unit, and at all times material represented a majority of the employees in said ap- propriate collective-bargaining unit.25 Respondent entered negotiations advancing for bar- gaining purposes eight proposals. Those relating to wages, addition of a management-prerogative clause, modification of the strike clause, and revision of the grievance procedure were, on the strength of the record developed, the Company's principal bargaining objec- tives. These the Company pursued vigorously in the two meetings following their presentation. These were the crux of the Company's demands. The Company's proposal which would incorporate essentially an "open shop" provision was patently objectionable to the Union, but was never pressed, and appears, from the vantage point of the record, to have been a proposal tactically ad- vanced as a trading device to gain principal bargaining ob- against those employees who had continued to work, and those who were desirous of doing so. Each of the seven were members of the Union None had sought to revoke his membership. In this circumstance, their at- tendance at the meeting with Stadnisky indicates a continued allegiance to the Union, and amenability to the Union's disciplinary sanctions, such as to rebut possible inferences that by July 15 the Union no longer retained its majority status. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jectives. Similarly advanced for tactical purposes were the Company's waiver clause provision and shop prac- tices proposal. The Company's proposal to modify the seniority provision of the agreement was intricately tied to its strike proposal , and appeared to have been the sub- ject of no extensive, separate considerations. During three meetings - covering a period of less than 8 hours - the parties negotiated. At the first meeting bar- gaining objectives were outlined and issue was joined on the matter of wages, the Union seeking a 31-cent package over 3 years and the Company offering 15 cents over the same term for present employees , with a lower scale and extended progression steps for new employees in the restricted and trainee classifications . To the point of im- passe on the wage issue , neither party altered its de- mands, although during the course of the final meeting the Company demonstrated a flexibility on the 15-cent figure and the Union amenability with respect to starting rates for new employees. But in the ultimate, the parties reached an impasse on wages. The General Counsel contends that Respondent in- sisted to a point of impasse upon a mangement-rights clause reserving to Respondent exclusive and unilateral control over the right to suspend, lay off, or discharge em- ployees and over other terms and conditions of employ- ment; and upon a grievance and arbitration clause requir- ing employees to take up grievances without the Union present. The General Counsel contends that proof of this is found in evidence revealing that at both the May 27 and June 4 meetings , Respondent would not offer further con- tract proposals until and unless the Union accepted all contract proposals which the Company had to that time placed before the Union. I have resolved the factual issue contrary to the General Counsel , and find that no such condition or demand was advanced or imposed during the short course of bargaining here involved. There is persuasive evidence of record revealing that at the June 4 meeting Respondent conditioned any wage increase upon union acceptance of its management-rights proposal and grievance proposal. However, these latter proposals were labeled negotiable by Scolnik and there is no foundation for assuming - in light of the limited oppor- tunity for bargaining that had been accorded the Com- pany by the Union - that a satisfactory resolution of those issues would not have been possible. However, the Union, insistent upon its own wage demands, chose to terminate bargaining in the face of company un- willingness to accede on the point of wages, and thus foreclosed opportunity for testing at the bargaining table the Company's ameliorative impulses. In these circumstances , having resolved the factual is- sues contrary to the General Counsel upon the issue of its insistence upon a management-rights clause and grievance and arbitration provision, I am unable to con- clude ' that by merely advancing the management-rights and grievance and arbitration proposals , Respondent may be found to have been lacking in requisite statutory good faith.26 Further, upon my resolution of disputed facts, I find that the General Counsel's proof does not sustain the al- legation of the complaint attributing to Respondent willingness , at the June 4 meeting , to accept the Union's 26 N L R B. v. American National Insurance Co., 343 U S 395, 409; see Wheeling Pacific Company, 151 NLRB 1192, 1222; Bethlehem Steel Company (Shipbuilding Division), 133 NLRB 1347, 1364, cf "M" severance pay proposal , if the Union would agree to withdraw as collective-bargaining representative of Respondent's employees. Nor, contrary to the General Counsel , do I find an in- ference of bad faith in Respondent 's anticipatory warning of an unwillingness , absent a contract effective for a period certain, to make further health, welfare, insurance, and pension payments. The evidence of record convinces me that, as the initial 30-day extension period reached its point of impending expiration, Respondent's counsel, Robert Scolnik, of- fered to agree to a further extension of all of the terms of the collective-bargaining agreement, for an additional period of 30 days. This extension patently would have en- compassed the health and welfare and pension fringe benefit provisions . In part, he premised the need for for- mal extension upon his interpretation of controlling precedent relating to Section 302 of the Act; in part, he insisted that essential considerations of fairness required that, in exchange for viable contract benefits , the Union and employees should incur the contractually based obligation governing their terms of employment , includ- ing the proscription against strike and lockout , and those governing grievances . The Union countered , as I have found, both prior to the May 31 expiration of the ex- tended agreement , and on June 4, with an offer of a further day-to-day extension. Clearly, the Union desired no significant inhibition upon its freedom to strike, if, in its view, a bargaining impasse should be reached. In agreement with the Respondent , I find that Scolnik reasonably and in good faith concluded that, under the ra- tionale of the Bethlehem Steel Company case,27 by analo- gy, health and welfare and pension provisions of the agreement, being "wholly dependent" upon the existence of a collective-bargaining agreement , did not survive the expiration of the agreement , and might, arguendo, be discontinued or modified without prior consultation and negotiations with the designated collective -bargaining representative of the employees. But the General Counsel contends quite earnestly that the Respondent threatened discontinuance and did discontinue payments, and that such threat and discon- tinuance in the face of a day-to-day extension of the con- tract, and the Union's status as bargaining agent, revealed Respondent's bad faith, violative of the Act. Initially, the evidence does not establish to my satisfac- tion that the parties ever reached a meeting of the minds with respect to' a day-to-day extension of the agreement. Scolnik's May 28 letter suggests no such agreement was reached before the termination of the initial contract ex- tension period,'and the parties did not communicate with each other again until June 1, at which time the contract, as once extended, had terminated by failure of the parties to reach agreement on terms of a future extension. Scol- nik convincingly testified that on June 1 when he and Stadnisky conversed no accord was reached with respect to an extension on a day-to-day basis.! Stadnisky testified with conviction that the parties did agree to such an ex- tension. But, as I have found, Stadnisky's certitude derived from his misinterpretation of the affect of Scol- nik's willingness to continue negotiations on June 4, in the face of the expired contract , and of Stadnisky's rejec- tion of Scolnik's offer of a 30-day extension. Events at the System, Inc., 129 NLRB 527, 550. 27 Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO [Bethlehem Steel Co.] v. N L.R B , 320 F 2d 615 (C A 3). TAYLOR INSTRUMENT COMPANIES June 4 meeting revealed quite clearly Stadnisky's mistake, and the absence of a meeting of the minds re- garding day-to-day extension. I find, contrary to the General Counsel, the Respondent did not recant from its agreement to a day-to-day extension, for at no time did it agree upon an extension on a day-to-day basis. Further, with respect to the alleged June 1 termination of payments, in point of fact, payments were not due under any circumstance until June 10, 6 days after the June 4 impasse meeting, and benefits did not lapse under the contract until June 20, some 16 days thereafter. At the June 4 meeting Scolnik made clear the willingness of the Company to make payments to the health and welfare and pension fund if the Union would agree to a 30-day ex- tension, and the Company agreed to make the terms of any contract consummated retroactive to May 1. In light of the antecedent ambivalence of the Union in seeking and arranging collective-bargaining meetings, the limited opportunity that had been accorded the parties to negotiate concerning the terms of the new agreement, and the propensity and willingness of the Union to resort to strike action in support of its bargaining demands - as shown by Lord's earlier threat and Stadnisky's insistence upon freedom to strike in face of an impasse - the Com- pany's reluctance to enter into a day-to-day extension of the agreement without receiving a reasonable quid pro quo was understandable. When this is considered in further light of Scolnik's reasonably held legal opinion that under Bethlehem Steel the Company was not required to negotiate with the Union concerning termina- tion of the health and welfare and pension benefits, the evidence is not persuasive of the existence of Respond- ent's subjective bad faith. Nor is the General Counsel correct in his contention that under the Katz decision'28 in violation of the Act, the Respondent affected a unilateral modification of the health and welfare and pension provisions of the agree- ment by failing after June 1 to make payments thereto. The failure of Respondent to make payments after June 1 is conceded. But the Respondent gave timely notifica- tion on June 4, and prior thereto, of its intention, absent a viable, enabling agreement covering health and welfare and pension benefits to cease making payments which became due on June 10. Respondent revealed a willingness to extend the collective-bargaining agreement and thus the health and welfare and pension provisions at any time prior to June 20 - when for nonpayment the coverage would lapse - on the condition that the Union agreed to its terms for a contract extension. The Union was adamant in its refusal to accede to the Respondent's condition and with equal adamance insisted upon its own conditions for contract extension and health and welfare and pension coverage thereunder. It would in my opinion be a perversion of the record evidence to conclude that in this circumstance, a union dissuasive effort was rendered predictably futile, or that, in the context of the aforesaid discussions - the last of which on June 4 encompassed approximately 30 minutes of dialogue - no opportunity for consultation and negotia- 18 N.L.R.B. v Benne Katz, dl bl a Williamsburg Steel Products Co., 369 US 736. 29 The Celotex Corporation, 146 NLRB 48, enfd. as modified on other grounds 364 F.2d 552 (C A. 5); see also Humble Oil & Refining Com- pany, 161 NLRB 714; Motoresearch Company and Kems Corporation 138 NLRB 1490, 1493, Justesen's Food Stores, Inc., 160 NLRB 687. The General Counsel's reliance on Sioux City Bottling Works, 156 NLRB 379, is misplaced, for there, contrary to the instant case, the union 179 tion was accorded the Union concerning the Company's decision to terminate the fringe benefits. While the Respondent did not invite discussion of the validity of its legally based predicate for terminating the benefits, ab- sent a subsisting contract, the Union was accorded ample opportunity to present countervailing legal opinion and to discuss with the Company alternative approaches and solutions. It did not do so, but insisted upon its own terms as a basis for continuation of the fringe benefit coverage. In the circumstances, I find Respondent did not violate the Act.29 Moreover, in view of the foregoing determinations, and my factual findings relating to the conversation between Scolnik and Union Steward Streeter at the plant on June 4 after the commencement of the strike - which conversa- tion, contrary to the General Counsel, I find did not reveal bad faith on the part of Respondent - I am unable to conclude, as the General Counsel urges, that Respond- ent's approach to the bargaining table prior to June 4 was lacking in requisite statutory good faith. Rather, I find the Respondent had not refused to bargain collective- ly with the Union within the meaning of the Act, and that the strike which on June 4 the Union caused to be com- menced was an economic strike which entitled Respond- ent, in interest of continued production and operation, to employ replacements for striking employees. The record, as developed at the hearing, is silent as to when Respondent undertook to augment its employee compliment by employing replacements for the strikers. As of June 7, as indicated by Scolnik's letter of that date, the Respondent was not disputing the Union's majority status, and, as found above, on July 15, four of the em- ployees who had returned to work and who had been union members attended a union meeting and by said at- tendance and participation revealed their continued alle- giance to the Union. Moreover, in face of the strike, on June 9, the Union was endeavoring to seek a renewal of negotiations. In the week that followed, Scolnik received a telegraphic request from FMCS requesting company participation in mediation efforts. The Board has held that a legal impasse arising from good-faith negotiations is broken by a strike and that it becomes incumbent upon the parties then to explore the changed situation arising from the strike action by resuming negotiations.30 "Indeed, the law casts a burden on the parties to a strike to continue negotiations during it and the refusal to do so is a violation of Section 8(a)(1) and (5) of the Act. 1131 There is strong reason on the record for presuming Respondent's awareness of the Union's desire to resume bargaining in light of the June 9 and 21 telephonic requests of the Union received by Scolnik's secretary; the telephone conversations which Scolnik testified trans- pired between Scolnik and a representative of FMCS in mid-June; and the mid-June telegram from FMCS which Scolnik concedes he received. While one may speculate as to the Union's failure after June 4 to make written demand upon the Respondent to resume bargaining, the record establishes that its telephonic contacts of June 9 and 21 went unheeded. was not consulted concerning the decision of management to abolish the pension plan and substitute another health and accident policy for that which the company had with the union. ao Boeing Airplane Company, 80 NLRB 447, 454, enforcement denied on other grounds 174 F.2d 988 (C.A.D.C.); see also Webb Furniture Cor- poration, 152 NLRB 1526. 21 N.L.R.B. v. Small Tube Products, Inc , 319 F.2d 561 (C.A. 3). 350-212 0-70-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They were, I find, in conjunction with the impasse -break- ing strike and the mid-June telephonic and telegraphic communications between FMCS and Scolnik , sufficient to give rise to a legal obligation on Respondent's part to communicate its willingness to negotiate further with the Union. Viewing these demands in context of the strike and the capsuled time period in which they occurred , it may not be persuasively asserted that employees , who may have been employed as replacements for striking members of the Union , had attained the status of permanent replace- ments so as to deprive the Union of its majority status.32 I find that as of June 22 , at which time the Union's June 9 and 21 telephonic communications and related communications of a characteristic sufficient to place Respondent on notice of the Union 's desire to continue collective bargaining would all have reasonably come to the attention of Robert Scolnik, the Respondent became legally obliged to resume negotiations with the Union, and failed to do so. Thus, I find that commencing on June 22, 1965, Respondent engaged in unfair labor practices violative of Section 8(a)(5) of the Act. I find also that the strike in which the employees were engaged , and which commenced on June 4, was pro- longed by Respondent's failure after June 22 to bargain in good faith with the Union and, as such , on June 22 was converted into an unfair labor practice strike.33 I further find that as of June 22 the striking employees became unfair labor practice strikers and, as such, were entitled, upon unconditional request, to reinstatement, displacing, if necessary , replacements hired on or after June 21,1966 .34 As the record establishes that on July 29 striking employee O 'Callaghan made such unconditional request of Respondent ;35 and as the record additionally reveals that during the week of July 23 Ernest Streeter made an unconditional request for reinstatement, which requests' were refused by Respondent, I conclude and find that, in denying them reinstatement, the Respondent violated 'Section 8(a)(3) of the Act.36 However, Powell stands on a different footing, for it is clear that lie conditioned his request for reinstatement by refusing'to execute the form proffered him by Respond- ent stipulating his willingness to return to work under prestrike conditions. 37 Nor is there warrant for a finding that an unconditional application by him would have been futile. It is true that on July 15 , Philpot informed Powell that his execution of the form would not guarantee his hire, as there were then no vacancies; and it is also established that neither O'Callaghan nor Streeter have been reinstated. However, absent more definitive expres- sion of ,Respondent's predisposition against Powell , appli- cation of the futility doctrine would be misplaced.38 Moreover, the Board has held that an anticipatory refusal 32 The evidence does not warrant a conclusion favorable to the Re- spondent that the Union during July abandoned the strikers and thus, by operation of law, extinguished their status as collective-bargaining repre- sentative of the employees. The evidence establishes merely a condona- tion on the part of Stadnisky of employee efforts to abandon the strike but it reveals also, and more significantly , an effort by the Union, frus- trated by Respondent, to continue negotiations , which efforts were pursued evenhandedly both during the pre-July 15 period of the strike and after the July 15 meeting of Stadnisky with the employees. 33 See N L.R.B. v. Waukesha Lime & Stone Co., Inc. , 343 F.2d 504 (C.A 7); N.L.R.B. v. Giustina Bros. Lumber Co , 253 F.2d 371 (C.A. 9); Combined Metal Mfg. Corp., 123 NLRB 895 to reemploy unfair labor practice strikers does not relieve strikers of their obligation to request reinstatement. 39 Accordingly, as Powell has failed to make uncondi- tional application for reemployment, Respondent has not violated the Act by failing to reemploy him. Moreover, as, contrary to the General Counsel, Respondent had not unilaterally modified the terms of the health, welfare, and pension plans , the demand made by Philpot upon Powell, Streeter, and O'Callaghan to manifest their willingness to return to work under pre-June 4 conditions was not an ef- fort to impose unlawful terms and conditions of employ- ment, in derogation of the Union. However, as Powell became an unfair labor practice striker on and after June 22, he has reinstatement and backpay rights which he may actuate upon his unconditional request for reinstate- ment, as hereinafter found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with Respondent's operations described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and con- tinues to engage in certain unfair labor practices , it will be recommended that Respondent cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. Having found that commencing on June 22, 1965, Respondent refused to bargain collectively with the Union as the exclusive collective-bargaining representa- tive of the employees of Respondent in an appropriate collective-bargaining unit, I shall recommend that, upon request, Respondent bargain collectively with Interna- tional Association of Machinists and Aerospace Wor- kers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1518 , as the exclusive collective-bargaining representative of employees in an appropriate collective- bargaining unit, herein found. It has further been found that the strike which com- menced on June 4, 1965, was prolonged by Respondent's refusal to bargain in violation of Section 8(a)(5) of the Act, which refusal to bargain commenced on June 22, 1965 . Consequently, as unfair labor practice strikers after June 22, the Respondent's striking employees could not lawfully be replaced but were entitled to be reinstated to their former positions of employment upon unconditional 34 N.L.R B . v. Waukesha Lime & Stone Co., supra; N.L.R B v. Giustina Bros Lumber Co., supra; Sherry Manufacturing Company, Inc., 128 NLRB 739, Combined Metal Mfg. Corp, supra 31 The record establishes he sought reemployment and imposed no con- ditions to his return to work. 38 N L R.B. v. Giustina Bros. Lumber Co , supra. 37 See Wilson & Co., Inc., 77 NLRB 959 Cf J A Terteling & Sons, Inc dlb/a Western Equipment Company, 152 NLRB 1014; Comfort, Inc., 152 NLRB 1074. 38 Cf. Kelly Brothers Nurseries, Inc., 145 NLRB 285,304-305 39 E. A. Laboratories , Inc., 80 NLRB 625, 687, enfd. as modified 188 F.2d 885 (C.A. 2) TAYLOR INSTRUMENT COMPANIES application for reinstatement. As the record establishes that on July 15, Jeffery O'Callaghan made unconditional request of Respondent for reinstatement , and that during the week of July 23, employee Ernest Streeter similarly made an unconditional request for reinstatement, which requests were refused by Respondent, I shall accordingly recommend that Respondent forthwith offer each of said employees reinstatement to their former or substantially equivalent position of employment and pay to each of these employees a sum of money equal to the amount that he would have earned as wages from the date of their un- conditional application for reinstatement to the date of Respondent's offer of reinstatement, together with in- terest compounded at the rate of 6 percent per annum, less his net earnings during said period . In similar manner, upon his unconditional request for reinstate- ment, reinstate Donald Ray Powell, and, commencing 5 days from the date of his unconditional request for rein- statement, make him whole for any loss of wages he may have incurred , as provided above. N.L.R.B. v. Trinity Valley Iron and Steel Company, 290 F.2d 47 (C.A. 5). If, at the compliance stage of this proceeding, it is established that while on strike as economic strikers prior to June 22, O'Callaghan, Streeter, and Powell, or any of them, had lawfully been replaced and no appropriate em- ployment is, as of the date of this decision , available to them, Respondent is hereby directed to place them on a preferential hiring list, and to thereafter offer them rein- statement as positions become available, and before other persons are hired for such work.40 Upon the basis of the foregoing findings of fact, and the entire record of this proceeding , I make the following: CONCLUSIONS OF LAW 1. Taylor Instrument Companies is an employer en- gaged in commerce within the meaning of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1518, are labor organizations within the meaning of Section 2(5) of the Act. 3. All of Respondent's San Leandro shop employees who performed the following work: assembling, repairing, dismantling, filling, welding, brazing, soldering, testing, calibrating, and synchronizing work on temperature, time, pressure, flow, liquid level, tension load, compres- sion load, controllers, recorders, thermometers, gauges, valves, instruments, and work normally done on instru- ments manufactured by the Employer, and excluding all employees who are presently represented by collective- bargaining agreements with other unions, office clerical employees, sales personnel , professional and technical employees, janitors, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On March 1, 1965, and at all times material thereafter, the Union was and now is the exclusive representative of the above-designated employees in the said appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. Commencing on June 22, 1965, and thereafter, Respondent refused to bargain collectively with the 181 Union as duly designated collective-bargaining represent- ative of the employees in the aforesaid collective-bar- gaining unit, and did thereby fail and refuse to bargain col- lectively in good faith with the Union in violation of Sec- tion 8(a)(5) of the Act. 6. The economic strike which commenced on June 4, 1965, was on June 22, 1965, prolonged by the aforesaid unfair labor practices of Respondent, and did on June 22, 1965, become an unfair labor practice strike. 7. On July 15 striking employee Jeffery O'Callaghan sought unconditional reinstatement to his former position of employment with Respondent; and similarly during the week of July 23 striking employee Ernest William Streeter sought unconditional reinstatement in his former position of employment with Respondent, which requests for reinstatement were rejected by Respondent. 8. By its failure to reinstate Jeffery O'Callaghan and William Streeter, the Respondent has engaged in and is engaging in unfair labor practices violating Section 8(a)(3) of the Act. 9. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, I recommend that Respondent, Taylor Instrument Compa- nies, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1518, as the duly designated collective-bar- gaining representative of employees in the unit herein found appropriate for the purposes of collective bargain- ing. (b) Refusing to reinstate unfair labor practice strikers who have made unconditional request for reinstatement to their former positions of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form or join labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary 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. 115, Local Lodge No. 1518, as the exclusive bargaining representative of all employees in the aforesaid ap- propriate collective-bargaining unit, and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Offer to Jeffery O'Callaghan, Ernest William Streeter, and Donald Ray Powell, the latter upon his un- conditional request for reinstatement, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other 40 Baldwin County Electric Membership Corporation, 145 NLRB 1316. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges, and make whole each of said em- ployees for any loss of pay he may have suffered or may suffer by reason of its discrimination against him in the manner, and to the extent, set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its San Leandro, California, plant, copies of the attached notice marked "Appendix. 1141 Copies of said notice, to be furnished by the Regional Director for Re- gion 20, after being duly signed by its representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by them to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.42 41 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the' Recommended Order of a Trial Examiner " in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 41 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 20 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX sure, flow, liquid level, tension load, compres- sion load , controllers , recorders, thermometers, gauges, valves, instruments and work normally done on instruments manufactured by the Em- ployer, and excluding all employees who are presently represented by collective-bargaining agreements with other unions, office clerical em- ployees, sales personnel, professional and technical employees , janitors, guards, and super- visors as defined in the Act , constitute a unit ap- propriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. WE WILL offer Ernest William Streeter, Jeffery O'Callaghan, and Donald Ray Powell, the latter upon his unconditional request for reinstatement, im- mediate and full reinstatement to their former or sub- stantially equivalent positions of employment, without prejudice to any seniority or other rights and privileges previously enjoyed by them, and make them whole for any loss of pay suffered as a result of our discrimination against them. WE WILL NOT discourage membership in any labor organization of our employees by refusing to rein- state any of our employees , or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in exercise of their rights to self-organization, to form, join, or assist any labor organization , to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to form, join , or assist any labor organization , and to engage in any self-organization and other concerted activities for the purpose of collec- tive bargaining, or other mutual aid or protection, or to refrain from such activities. NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL, upon request, bargain collectively with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1518 as the exclusive representative of all our employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of em- ployment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All of the Respondent's San Leandro shop employees who performed the following work: assembling, repairing, dismantling, filling, weld- ing, brazing, soldering, testing, calibrating, and synchronizing work on temperature, time, pres- . TAYLOR INSTRUMENT COMPANIES (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.