S & W Motor Lines, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD S & W Motor Lines, Inc. and Chauffeurs, Teamsters & Helpers Local Union No. 391, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 11-CA-6789, 11-CA-6876, and I1-CA- 7108 June 15, 1978 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 12, 1978, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel each filed exceptions with a sup- porting brief. The Charging Party filed cross-excep- tions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that S & W Motor Lines, Inc., Greensboro, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: i. Substitute the following for paragraph l(b): "(b) Attempting to induce drivers to abandon their protected concerted activities by offering them bonuses to return to work. However, nothing herein shall be construed as permitting the Respondent to withhold any benefits previously granted to its driv- ers." 2. Substitute the following for paragraph 2(d): "(d) At the conclusion of the strike and upon re- quest of the above-named Union pay to any rein- stated striker employed as an over-the-road truck- driver the same per trip bonus paid to nonstriking drivers until the total bonus paid the individual rein- stated striker equals the average amount earned by the nonstriking drivers during the strike or until the cessation of such bonuses has been negotiated with the Union. A driver reinstated prior to the end of the strike will have his bonus payments under this for- mula reduced by the amount he earned during the strike." 3. Substitute the attached notice for that of the Administrative Law Judge. i The Respondent and the General Counsel have each excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for revers- ing his findings. In affirming the Administrative Law Judge's Remedy, the Board hereby conforms the Order and notice to it. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties were represented and had the opportunity to present testimony, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice: The Act gives all employees these rights: To organize themselves To join, help, or form unions To bargain as a group through a representa- tive they choose, to act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything that interfers with, restrains, or coerces employees with respect to these rights. WE WILL NOT offer rewards to or otherwise sol- icit or encourage nonstriking employees to take physical retaliation against striking employees. WE WILL NOT grant bonuses to induce striking employees to return to work or to interfere with their right to strike. WE WILL NOT solicit grievances from our em- ployees and suggest action on such grievances in order to discourage employee support of Chauf- feurs, Teamsters & Helpers Local Union No. 391, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor or- ganization. WE WILL NOT encourage the formation of or 236 NLRB No. 113 938 S & W MOTOR LINES. INC. render aid and assistance to the employee group of October 8, 1976, or any like group, or deal with said group or any like group concerning grievances, wages, hours of employment, or other terms and conditions of employment. WE WILL NOT refuse to bargain with Chauf- feurs, Teamsters & Helpers Local Union No. 391, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collec- tive-bargaining representative of the employees in the unit described below by failing and refus- ing to provide it with relevant information re- quested by it; by encouraging employees to deal with us in derogation of the Union; or by chang- ing terms and conditions of employment with respect to bonuses and overtime rates without notice to or bargaining with the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in the Act. WE WILL. upon request, bargain in good faith with Chauffeurs, Teamsters & Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclu- sive representative of the employees in the fol- lowing appropriate unit and if an agreement is reached WE WILL embody such agreement in a signed contract: All drivers, warehousemen, mechanics and regular part-time employees employed at our terminal in Greensboro, North Carolina, and our subterminals in Hickory, North Carolina, Nitro, West Virginia, and Parkersburg, West Virginia, excluding all office clerical employ- ees, guards and supervisors as defined in the Act. WE WILL pay, with interest, our employees for any losses they may have suffered as a result of our unilateral change in the overtime rates. WE WILL reinstate all employees who engaged in the strike which began on October 16, 1976, to their former jobs or, if those jobs no longer exist, to a substantially equivalent job, within 5 days after each striker makes an unconditional application to return to work. WE WILL, at the conclusion of the strike and upon request of the above-named Union, pay to any reinstated striking employee employed as an over-the-road driver the same bonus paid to nonstriking over-the-road drivers during the strike until each such reinstated employee has received bonus amounts equal to the average amount earned by the nonstriking employee, or until we reach agreement with the Union regard- ing cessation of the bonus payments. A driver reinstated before the end of the strike will have his bonus payments under this formula reduced by the amount he earned during the strike. S & W MOTOR LINES, IN( DECISION STATFMENI OF tHE CASE HvlItON S BRANDON Administrative L aw Judge: These consolidated cases came to hearing at Winston-Salem, North Carolina, on September 19, 20, and 21. 1977. The charge in Case II-CA 6789 was filed by Chauffeurs, Teamsters & Helpers Local Union No. 391, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, on October 22, 1976,1 and amended on October 29, 1976. The charges in Cases I1 CA 6876 and II CA 7108 were filed by the Union on January 6, 1977, and July 13, 1977. respectively. The complaint in Case 1 CA--6789 is- sued on January 10, 1977, and was subsequently consoli- dated with the later filed charges in Orders Consolidating Cases. consolidated complaints and notices of hearing which issued on February 16 and August 25, 1977, the lat- ter order being amended August 29. 1977. The primary issues are whether S & W Motor Lines, Inc., herein called Respondent; (a) made unlawful promises and solicitations to its employees in violation of Section 8(a)(1) of the Na- tional I1abor Relations Act; (b) unlawfully rendered aid and assistance to an antiunion employee group in violation of Section 8(a)(2) of the Act; (c) unlawfully discharged an employee in violation of Section 8(a)(3) of the Act: (d) refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act: and (e) whether the strike which was called by the Union beginning on or about Oc- tober 16. was caused or prolonged by Respondent's alleged unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, Respondent.2 and i All dates herein are in 1976 unless otherwise specified Respondent filed as appendixes A and B to its brief correspondence to the Inmon following the close of the hearing as well as a contractual propos- al of Respondent to, the nion which accompanied the letter I he General ('ounsel filed on November 10. 1977, a motion Io strike the portion of Respondent's brief contending that the appendixes and that portion of Re- spondent's hrief which referred to them should be striken inasmuch as thes pertained to events occurring after the close of the hearing, were not part of the record. and were rank hearsay. It also appears that the appendixes were not properl) authenticated Upon consideration of the mailter the General Counsel's motion is hereby granted and the Respondent's appendixes as well as atnl references to such appendixes In Respondent's brief are hereby disregarded In this )eclsi,n. See Tabernacle Sand & Gravel Corploration and ,alhwle fruk, ing. 232 NLRB 957 '1977); Intlrnaillnal Uniorn if Operating Lngin'lr I.,ocal I ..4FL (10 (0Ohii, ( oirltors .4ss-iatoln). 220 NI RB 147 (1975) [for the same reasons I hase disregarded for purposes of decision a footnote in the IUnion's brief which refers, ti an ailleged negotiating meet- Ing between the parties on October 4, 1977 939 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, I make the following: FINDINGS OF FACT I JURISDICTION Respondent, a North Carolina corporation, is a motor freight carrier engaged in the hauling of furniture by motor vehicle under a certificate of convenience and necessity issued by the Interstate Commerce Commission. Respon- dent operates terminals and conducts its operations in the States of North Carolina and West Virginia. During the past 12 months, Respondent received gross revenues in ex- cess of $50,000, for services performed directly outside the State of North Carolina, and transported materials from the State of North Carolina to points directly outside the State of North Carolina valued in excess of $50,000. While Respondent in its answer admits the foregoing facts, which are alleged in the Second Order Consolidating Cases, con- solidated complaint and notice of hearing it does not admit that it is engaged in commerce. Based on the foregoing admitted facts I find that the Respondent is now and has been at all times material herein an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION The consolidated complaint alleges, the Respondent's answer admits, and I find that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union and Respondent have been parties to a col- lective-bargaining agreement for about the past 9 years with the last such collective-bargaining agreement effective from August 20, 1973, to, and including August 19, 1976, covering a unit of all drivers, warehousemen, mechanics, and regular part-time employees employed by Respondent at its terminal in Greensboro, North Carolina, and subter- minals in Hickory, North Carolina: Nitro, West Virginia; and Parkersburg, West Virginia. By letter dated June 10, the Union through its secretary-treasurer, B. D. Blevins, notified Respondent that it desired to negotiate changes in the collective-bargaining agreement which was due to ex- pire. Respondent, through its president, G. H. Sharp, by letter dated June 16, notified the Union that it desired to terminate the collective-bargaining agreement. Thereafter the parties met for contract negotiations on August 9, 18, and 27, and on September 2, 24, and 30. The relevant de- tails concerning these negotiations sessions as well as ones subsequent to September 30, will be set forth below. It is sufficient to note at this point that the negotiations were unsuccessful and the Union struck Respondent on October 16. It is in the context of this negotiation background that Respondent's alleged 8(a)( I), (2), and (3) violations occurred. B. The Alleged Independent 8(a)(1) Violations and Findings Thereon The consolidated complaint alleges that Respondent through its president, G. H. Sharp, in mid-November promised employees that he would give $10,000 to anyone who made it possible for him to find a dead picket inside the Respondent's gate on any morning Sharp arrived at work. In support of this serious allegation the General Counsel presented Gurney L. Wyatt, an over-the-road driver for Respondent who had been hired about October 12 and worked during the course of the strike until about December 22. Wyatt testified that during a morning break, about 9:30 to 10 a.m., during the week before October 27, he had a discussion with Sharp at or around the cold drink machine and in the presence of employee Lee Walter Sain and an- other unidentified individual. Wyatt began talking to Sharp about Respondent's offer of a $4,000 reward for in- formation leading to the conviction of persons cutting air lines on Respondent's truck trailers. Wyatt commented that the $4,000 was not getting any action and suggested that if Sharp raised the price it might do some good. Ac- cording to Wyatt, Sharp responded that he would give $10,000 if he could find one of the pickets laying on the inside of the fence dead when he arrived at work the next morning. Sharp's remark was made in a normal tone, Wyatt testified, and appeared to have been made in earnest. Wyatt stated he made no response to Sharp's remark nor did any- one else present. Wyatt finished his drink and returned to the warehouse. Lee Walter Sain was not produced as a witness by the General Counsel and the other individual present in the conversation with Sharp was never identified on the rec- ord. Sharp, although called as an adverse party witness by the General Counsel, did not testify concerning the remark attributed to him by Wyatt, and did not specifically deny it. Wyatt also testified concerning an incident involving Respondent's dispatcher, Bill O'Daniel, an admitted super- visor of Respondent.' According to Wyatt about mid-No- vember he and employee Lee Walter Sain were performing some "guard duty" work at Southern Express, Inc.4 Wyatt and Sain were approached by O'Daniel who "wanted" Wyatt and Sain to get some LSD and put it in three-fifths of whiskey and give it to the pickets. O'Daniel, who was also a vice president of Southern Express, went so far as to suggest, according to Wyatt, how the LSD might be insert- ed into the bottle without breaking the seal. In this regard O'Daniel told Wyatt and Sain that he wanted to put the O0'Daniel is also a son-in-law of Sharp. 4The complaint does not allege that Southern Express is either an alter ego, or successor of, or joint employer with, Respondent. The record reveals however that the Southern Express officers have family ties with officers of Respondent, that it leases some equipment from Respondent, and occasion- ally used some employees of Respondent as well as some of Respondent's supervisors. Southern Express was engaged primarily in hauling mail by motor carrier and its terminal or place of business was about a mile and a half from Respondent's Greensboro terminal. While not clear from the rec- ord it appears that Wyatt's "guard duty" was to protect Southern Express equipment from damage which might result from the "labor dispute" at S & W because of Southern Express's close relationship to S & W. 940 S & W MOTOR LINES. INC. LSD in by sticking a needle (hypodermic) through the cork and then take it and give it to the S & W pickets. Wyatt suggested that O'Daniel not let he and Sain do it because the pickets knew they worked for Respondent, that they were scabbing for Respondent, and would not take whis- key from them. O'Daniel responded, according to Wyatt, that he would have to give it to somebody the pickets did not know. Neither Wyatt or Sain agreed to take part in O'Daniel's suggested plot and there was no evidence sub- mitted that any attempt was made by O'Daniel to effectu- ate the plot. While Sain was not called as a witness by the General Counsel on this point Respondent did not call O'Daniel as a witness. The remarks attributed to O'Daniel by Wyatt stand undenied on the record. I was impressed by Wyatt as a credible witness who was all the more believable because his interests were not aligned with those of the union since he had worked during the course of the strike up until the time he quit Respon- dent's employment in December. I therefore credit his tes- timony even in the absence of corroboration by Sain. and particularly in the absence of specific denials by Sharp or O'Daniel. 5 Respondent's brief takes a cavalier approach to Wyatt's testimony describing Wyatt's discussions with Sharp and O'Daniel as "joking conversations" which were in no way threatening, intimidating, or coercive. On the contrary. I find that the remarks were of an extremely serious nature having a substantial impact on employee rights under Sec- tion 8(a)(l) of the Act. Clearly. the remarks conveyed to the employee listeners the lengths to which Respondent was willing to go to interfere with employee rights express- ing as they did the idea of direct physical retaliation to strikers and pickets. The natural and foreseeable result of those statements of Respondent would be the compelling but unlawful dissuasion of listening employees from join- ing or participating in the strike against Respondent. T he physical action against the pickets solicited by Respondent is a clear and flagrant violation of Section 8(a)(1) of the Act. See Orkin Exterminating Compoany of Florida, Inc.. 152 NLRB 83 (1965), enfd. 379 F.2d 972 (C.A. 5, 1967). Even if I were to find as Respondent contends that the remarks were made in "joking conversations" it would pro- vide no defense to the violations alleged. As the court said in A. P. Green Fire Brick Company v. N.L.R.B., 326 F.2d 910, 914 (C.A. 8, 1964) enfg. 140 NLRB 1067 ( 1963 ). "[E]x- ecutives who threaten in jest run the risk that those subject to their power might take them in earnest...." Accordingly, I find that Respondent violated Section 8(a)(1) of the Act through the remarks to Wyatt and Sain by Sharp and O'Daniel. C. The Alleged 8(a)(2) Violations and Findings Thereon The alleged violations of Section 8(a)(2) of the Act by 'Indeed, as the General Counsel and the Union point out in their re- spective briefs an inference is warranted that Respondent did not call ilt- nesses to rebut the testimony of Wyatt because their testimron' swould be adverse to Respondent. See Pacific Grinding Wheel (o1. Inc. 220 Nl.RB 1389, 1390 (1975); Bechtel (Corporation. 141 NLRB 844. 852 (1963) Respondent are also based on statements and conduct of Dispatcher O'Daniel, and grow out of events occurring on October 8. In seeking to establish the violations in this re- gard the General Counsel relies exclusively on the testi- mony of William Dwight Pinnix. an over-the-road driver of Respondent for about 4 years who also worked occasional- ly for Southern Express as did several of Respondent's em- ployees. Pinnix testified that on October 8 while on a road trip to Greenville, South Carolina. apparently for Southern Express, he had heard from another employee of Respon- dent named Moser about a meeting to be held by Respon- dent's employees that night. While in Greenville. Pinnix met another employee of Respondent, named Avery Per- due, who was on a trip for Southern Express and Perdue inquired of Pinnix if he was going to attend the meeting that evening. When Pinnix returned to the Southern Ex- press terminal that evening about 7 or 7:30 p.m. he met with Jimmy Stubbs and other of Respondent's drivers who also occasionally drove for Southern Express. Respon- dent's dispatcher O'Daniel was present. The subject of the conversation in this group of drivers was what location could be obtained for a meeting. O'Daniel in the Southern Express dispatch office in the presence of the drivers phoned a nearby motel to see if a room could be obtained. There were no vacancies there so O'Daniel phoned the Al- bert Pick Motel and was successful in obtaining a room. Stubbs, according to Pinnix. expressed concern to O'Dan- iel about who was going to pay for the room and O'Daniel replied. "Don't worry about it, I will pay for it." There- upon O'Daniel gave Stubbs some money. Pinnix testified that he went to the motel at about 9:30 p.m. and met with Stubbs, as well as Respondent drivers Virgil, Troy, Perdue, and three Hickory drivers of Respon- dent whose names Pinnix did not know. O'Daniel did not arrive at the motel until about 10 p.m. according to Pinnix. O'Daniel who had previously advised Pinnix that Sharp would attend the meeting informed the employees in atten- dance that Sharp could not attend the meeting, but added that if it was all right with the employees he would sit down with them and discuss "problems" and what the employees wanted to do and what they wanted to talk to him about. O'Daniel told the employees present that he was going to write down what they wanted and they could talk about forming a company union among themselves. There fol- lowed a discussion of the union contract, wages, and holi- day pay among other things. Pinnix testified that a compa- ny union was also mentioned in O'Daniel's presence with Stubbs offering to draw up a "contract" if that was what the employees wanted, and he would get the "thing on the ball" then. O'Daniel remarked. "Okay, let's just get the ball on the road. let's just get things going because I think the company is dying: if we want to get back on the ball, and you people want to save your job, let's get it going; you know, Ict's get it going and everything." The employees present agreed to talk to other employees the following morning and Stubbs stated he would get "cards" drawn up to get out of the union, that all they had to do was get about 80 percent of the employees to sign cards if they wanted to get out of the Union.6 h Iaht thls dlscusion pertained to those person, preent as employees of ( 'onltnued 941 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Daniel recognized his presence at the meeting was un- lawful and so informed the employees, according to Pinnix. In an attempt to avoid the unlawful implications of his presence the employees present agreed that they would "go along" with O'Daniel being their guest and would not let anyone know that he was there. The meeting concluded with O'Daniel telling the em- ployees that he would take the matter back to Sharp and see what he thought about it and would get back to the employees. O'Daniel stated however that he could not promise anything but would see what he could do. Further. O'Daniel alluded to the financial difficulties of Respon- dent and said he did not know what would happen. There is no evidence in the record that Respondent acted on any of the "problems" or other matters of concern at the meet- ing or ever "got back with" the employees. While Pinnix's testimony regarding the October 8 meet- ing was not corroborated by any other witnesses who at- tended the meeting neither was it contradicted by witnesses of Respondent. Respondent failed to call O'Daniel as a witness. Pinnix's testimony was not materially affected by vigorous cross-examination. Accordingly, and since I found Pinnix to be a generally sincere and truthful witness, he is credited. It is the General Counsel's position that O'Daniel's con- duct as testified to by Pinnix constitutes a violation of Sec- tion 8(a)(2) of the Act and is supported in this position by the Union in its brief. While not alleged in the complaint. the General Counsel's brief alludes to the fact that such conduct by O'Daniel at a time when Respondent was obli- gated to bargain with the Union and was in fact in negotia- tions with the Union could also constitute a violation of Section 8(a)(5) of the Act. The Union's brief specifically urges such a finding. Respondent's brief treats the alleged 8(a)(2) violation only briefly stating that O'Daniel's conduct "hardly amounted to domination or interference with the forma- tion or administration of any labor organization." The brief states that O'Daniel was invited to the meeting and that while he advised the employees he would report their sentiments to Sharp there was no evidence that Sharp took any action and, accordingly. there could be no violation of the Act. It is readily apparent that O'Daniel actions and state- ments relative to the October 8 meeting constituted rank interference with employee Section 7 rights in violation of Section 8(a)(l). The violation in this regard is so clear that citation of authority is unnecessary. I so find. The 8(a)(2) allegation presents a clear issue.7 The thresh- old question which presents itself is whether the employee group, hereafter referred to as the ad hoc employee group. constituted a labor organization within the meaning of Sec- tion 2(5) of the Act.f The consolidated complaint issued Respondent and It O'(Daniel as a supervisor of Respondent as opposed Io their status as employees of Southern Express and O'Daniel as an officer of Southern Express is evidenced by the fact that no union represented South- ern Express employees. Sec. 8(a)(2) of the Act in pertinent part nmakes it an unfair labor practice for an cnipfloyer "to dominiate or interfere with the formation or administra- tion of adll labor organlzaltion ot contribute financial or other support to it." 8 Sec 2(5) of the Act defines a "labor organization-"as "any organization herein does not allege the group to be a labor organization, and in alleging the 8(a)(2) violation the complaint only re- fers to Respondent's rendering of unlawful aid, assistance, and support to "a group of anti-union employees." How- ever, the Board and Courts have rather broadly construed the definition of "a labor organization" under the Act. Thus, "a labor organization" may encompass a wide vari- ety of entities. See Porto Mills, Inc., 149 NLRB 1454, 1471- 72 (1964), and cases cited therein. Such broad construction is consistent with an effort to reach organizations which "may be a ready and effective means of obstructing self- organization of employees and their choice of their own representatives for the purpose of collective bargaining." N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 266 (1938). No formal organization is required before the existence of a labor organization within the meaning of the Act may be found. N.L.R.B. v. Kennametal, Inc., 182 F.2d 817, 818 (C.A. 3, 1950). In the instant case it is clear that the ad hoc employee group which met with O'Daniel, however loosely formed and for however brief a time, existed in part for discussing their greivances with Respondent in an effort to resolve those grievances to the exclusion of the Union. O'Daniel's support and encouragement in this regard, even if no ac- tion was taken upon the grievances, constituted the first step in the establishment of what could have become a more formalized organization. At least the ad hoc employee group meeting with O'Daniel on October 8 consisted of employees acting in concert for the purpose of "dealing with" Respondent concerning their grievances and with an object of eventually negotiating a collective-bargaining agreement with Respondent following the demise of the Union. I am therefore constrained to the view that the Oc- tober 8 ad hoc employee group existed, in part at least, and for however short a duration, for the purpose of dealing with Respondent concerning matters falling within the area of collective bargaining. I therefore find that the group constituted a labor organization within the meaning of Sec- tion 2(5) of the Act. In addition, it is clear that O'Daniel supported the ad hoc employee group, solicited their grievances, encouraged their formation of a company union, attended their meet- ing, and rendered financial assistance to the group to the extent of securing and paying for the meeting place. I find that Respondent, through O'Daniel's conduct, violated Section 8(a)(2) as alleged by the General Counsel. With respect to the Union's argument that O'Daniel's conduct also constituted an 8(a)(5) violation on the part of Respondent, there is substantial Board and court prece- dent for the proposition that where an issue relating to the subject matter of the complaint has been litigated at a hearing, and there is no special showing of detriment to Respondent, a finding on that issue must be decided even though it is not specifically alleged to be an unfair labor practice in the complaint. See, e.g., Curtiss- Wright Corpora- tion, Wright Aeronautical Division, 347 F.2d 61 (C.A. 3, 1965); Garland Corporation, 162 NLRB 1570 (1967). Here it of any kind. or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wag- es, rates of pay. hours of employment, or conditions of work." 942 943 S & W MOTOR LINES. INC. is clear that the facts upon which the 8(a)(2) allegations were based and were litigated at the hearing and there is no special showing by Respondent of any detriment resulting from considering those same facts as a violation of Section 8(a)(5). Furthermore, any Section 8(a)(5) conclusions based upon those facts would be closely related to the other 8(a)(5) allegations of the complaint. Accordingly, I do not deem myself to be foreclosed from considering, as urged by the Union, O'Daniel's conduct to be indepen- dently violative of Section 8(a)(5). See also Danner Press, Inc., 153 NLRB 1092 (1965). However, I shall reserve treat- ment of the issue under the surface bargaining heading below. D. The Alleged Violation of Section 8(a)(3) of the Act The General Counsel alleged that Respondent's dis- charge of E. W. Pack on October 5 was violative of Sec- tion 8(a)(3) of the Act. Pack had begun work for Respon- dent on February 5, 1968, and worked under maintenance shop foreman, Franklin Jones, at the time of his discharge on October 5. According to Pack's testimony his work had been acceptable to Respondent and he had not received any reprimands, warnings, or criticisms from Respondent. Pack related that he had been told by J. D. Tilley, Respon- dent's maintenance director in February or March that Til- ley liked his work. On October 2, Pack attended a union meeting during the course of a regularly scheduled workday. He had received prior permission from Tilley about a week earlier to attend the meeting which was held away from Respondent's premises. In addition, he told shop supervisor, Franklin Jones, on the day of the meeting that he would be attend- ing it. According to Pack, Jones only reacted to Pack's statement by grinning.9 Pack testified on direct-examination that when he got ready to leave work to attend the meeting around 9:30 a.m., he could not find his timecard to punch out, and although he looked for Jones he could not find him. Pack proceeded on out the gate where he observed Jones coming in the gate driving a truck. Nevertheless, Pack did not stop Jones or tell Jones or any other supervisor or timeclerk that he could not find his timecard. Pack returned from the meeting about 12:45 p.m., and at this time found his timecard in the rack behind another employee's timecard. He thereupon punched out, ate his lunch, and punched back in. When he saw Jones at some subsequent time, according to Pack, he told Jones that his timecard was "fouled" up. Again Jones only response was a grin. Pack further told Jones that he had "messed up my card" and could not find it when he got ready to leave for the meeting. Jones, according to Pack did not respond. Pack continued to work the rest of the day and clocked out and went home at the end of the workday.s 9 Pack was not the only employee who was allowed off work to attend the meeting. It appears from the record that several other employees also were allowed to leave work to attend the meeting and did so without any reper- cussions. All had clocked out before going. Only six employees were work- in8 in Respondent's garage that morning 0 Pack's timecard of October was introduced in evidence as G.C. Exh 96. It reflects that Pack clocked out at 12 45 and hack in at 12 5' and linall, The following two days, Sunday and Monday, were Pack's days off. When he returned to work on Tuesday, October 5. he clocked in and worked until 9 a m., when Jones advised him "they want you up in the office." Pack proceeded to Tilley's office where he met with Title) and Harvey Reed, another representative of Respondent. T ille inquired about the timecard and accused Pack of being dishonest. Pack testified that he attempted to explain but was not allowed to present his side of the stor'. Instead, Tilley read to him from a book, but Pack did not pay enough attention to determine whether it was a contract or rulebook. In any event, Tilley said he was going to have to let Pack go. Pack asked if he would be paid off and was told that he would be. He asked if he would get his vaca- tion pay too and was told by Reed he would "have to go up on the hill to get that." " Following his discharge, but on the same day according to Pack's testimony on direct, Pack reported the matter to the Union Secretary-Treasurer Bruce D. Blevins. Blevins phoned Respondent's president, Sharp, and arranged for Pack to go back to Sharp's office and meet with him. Pack returned to Respondent's premises but after waiting an hour or hour-and-a-half to see Sharp he was advised by Harvey Reed that Sharp could not talk to Pack without his attorneys. Pack thereupon left and heard nothing further from Respondent until December 22 when he received a letter from Respondent noting the existence of a work stoppage and seeking to ascertain his desire for returning to work.'2 On cross-examination, and confronted with his prehear- ing statement to the Board, Pack varied his testimony from that on direct in a number of respects. First, he admitted on cross-examination that he "forgot" to punch out when he went to the union meeting. In attempting to square that admission with his prior testimony that he had looked for his card but could not find it, Pack's testimony becomes completely confusing. In Pack's prehearing statement he had asserted that he did not recall that he had forgotten to punch out until he returned from the meeting. When ques- tioned about this on cross-examination, he testified that he first recalled that he had forgotten to clock-out as he was going out the gate to the meeting. In addition, in his prehearing statement Pack had related that he told Jones about "messing" up his timecard as he was punching back in from lunch. On cross-examination. his testimony was that he told Jones about his card 15 to 30 minutes after he punched in. Confronted with his prehear- ing statement he testified Jones came toward him as he was punching in and he told him then the card was messed up. but Jones continued walking on inside the shop but shortly out for the dao it 3:28 p.m I hu,. based on the card it would appear that Pack had worked the whole daN since he originally clocked in al 6, 42 .i r I The "up on the hill" reference according to P;lck, as a cimnion tor generally undeTrslood reference to the union hall In vsie of RespDnden!' financial difficultles, hlch will be outlined In greater detail belhis. other employees were experiencing difficults in securing their sacatlion pa% I hi, diffliult' prompted the filing of an involunlars petition hr, bankrupl(t against Respondent and Was not reso(lsed until JanuarN 19 77. ,hen the sacalion pa? due emplo)ees as paid i: this Ic!ter apparentls was a form letter sent bh the h-pl o'er during the strike According to references. in the bargaining minLtes In eildelle Re- spondent's elnding of these letters Ioi ertain of its fIrmer emplosccc uI, inadvertent 1he bankruptcy proceeding was apparentlh dr ,ipped DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter came back out and Pack again tried to tell Jones about the card as Jones was getting in his truck. T here was no response by Jones to any of this according to Pack. This last attempt to say anything to Jones about the card was not referred to by Pack in his prehearing statement or his testimony on direct. Finally, on cross-examination, Pack's testimony varied from his testimony on direct with respect to his attempt to see Sharp and Sharp's refusal to meet with him. In his prehearing statement Pack said that he attempted to meet with Sharp a week after his discharge but Sharp had told him he would have to talk to his attorney before he would reach any decision. On cross-examination Pack testified Sharp had told him that in a telephone conversation after which he went to meet Sharp and that was when he kept waiting in excess of an hour. Such a telephone conversa- tion was not mentioned in Pack's prehearing statement. Asked about previous occasions when employees failed to clock-out, Pack testified that on one occasion he had failed to clock-out upon leaving work early but had not been reprimanded for this. The procedure in that instance was to inform the supervisor or clerk about the time the employee left and that time was entered on the card by the supervisor or clerk. Admittedly, Pack had never at anytime prior to his discharge advised any supervisor of Respon- dent how long he had been absent in attendance at the October 2 union meeting. Respondent's defense to the discharge of Pack was pre- sented through its witnesses J. D. Tilley and Franklin Jones. Jones testified that after the employees left on the morning of October 2. he checked the timecard rack to ascertain whether all the employees had clocked out. All but Pack had and Jones could not find Pack's timecard. Jones then phoned Tilley who was at the Southern Express office at the time and advised him of the situation. Tilley advised Jones to call back and let him know if he subse- quently found the card. Pack further testified that about 20 minutes after the employees returned from the union meet- ing he checked the card rack and found Pack's card with about a 10 minute punch out and punch back in. He again phoned Tilley and told him what he had discovered. Jones denied that Pack had ever told him on October 2 that his card was "messed up" or anything of that sort and never approached him about the card before or after the meeting. Moreover, Jones asserted that he had been in the shop all day and had not left at anytime thereby contradicting Pack's testimony that Jones could not be found just prior to Pack's leaving for the meeting and seeing Jones driving in the gate as Pack left. Maintenance Director Tilley testified that it was his de- cision to discharge Pack and that decision was based upon his conclusion that Pack was stealing time. Tilley corrobo- rated Jones' testimony regarding Jones' reports to Tilley on the absence and subsequent reappearance of Pack's time- card on October 2. Tilley advised Jones that he would take care of the matter when he returned to Respondent's shop but did not return that afternoon. Moreover, Tilley testi- fied that another employee, Jerry Carter,'3 advised him C ('arter was not subpenaed by Respondent to testify. While Respondent's (Counsel asserted that (Carler was necserthelss expected to testify he necer that Pack had taken his timecard and put it in a toolbox during the time he had gone to the meeting. Tilley denied Pack's discharge had anything to do with the Union and said Pack's discharge was based on Pack's tampering with his timecard in violation of Respondent's rules. Tilley said he so advised Pack in the discharge inter- view which he estimated lasted about 45 minutes and dur- ing which, contrary to Pack's testimony, he gave Pack an opportunity to explain and Pack had denied that he had put his timecard in his toolbox. Pack had claimed that his card had been put behind someone else's card. When Til- ley explained that leaving without punching out and then punching out later was stealing time Pack had protested other employees had done it, but Tilley claimed he had never seen a timecard nor a situation like Pack's before. Finally, Tilley testified that Pack did not tell him during the discharge interview that he had tried to talk to Jones about the card. After carefully considering both the demeanor and sub- stantive testimony of Jones and Tilley as opposed to that of Pack, I must credit the former over the latter. Pack's per- formance under cross-examination was contradictory, vague, confusing, and unconvincing. Jones and Tilley were more convincing and mutually corroborative. I therefore find that Pack did not in fact advise Jones that he had "messed up" his timecard. Accordingly, there existed a rea- sonable basis for Respondent to believe that Pack had at- tempted to "steal time" even if Pack had in good faith neglected to clock out and had through inadvertence or ignorance "messed up" his timecard by improperly clock- ing out and back in without subsequently insuring that ap- propriate corrections were made by his supervisor or time- clerk. Respondent's conclusions as to the improper nature of Pack's actions received support from Carter's report to Tilley even if Carter's report was incorrect. However, it is not necessary for me to determine if Pack had in fact delib- erately hid his timecard. It is sufficient to find that Respon- dent believed he had acted improperly with respect to the timecard. Furthermore, while the penalty of discharge under these circumstances appears rather harsh for an employee with several years service and a record of no prior transgres- sions, there is no showing of disparate treatment of Pack in the absence of different treatment to other employees simi- larly situated. Indeed, this situation does not appear to have arisen before. The union animus reflected in my 8(a)(l) and (2) conclusions, noted above, also do not force a different conclusion. Even assuming such animus, and notwithstanding Respondent's habit of checking the time- cards when employees left to attend union meetings, the credited evidence here establishes a reasonable basis for Respondent's actions and precludes the existence of a pre- textual reason for the discharge. Considering all the foregoing, I conclude that the Gener- al Counsel has not established the alleged 8(a)(3) violation. appeared, allegedly because of illness. Thus. Tilley's testimony as to what Carter reported to him is hearsay to the fact of any deliberate hiding by Pack of his timecard and thus was not received in evidence to establish that fact. 944 S & W MOTOR LINES, INC( E. The Alleged 8(a)(5) Violations and Conclusions Thereon The consolidated complaint alleges, the answer admits, and I find that the appropriate unit herein involved con- sists of the following: All drivers, warehousemen, mechanics and regular part-time employees employed at the Respondent's terminal in Greensboro, North Carolina. and the Re- spondent's subterminals in Hickory, North Carolina. Nitro, West Virginia, and Parkersburg, West Virginia, excluding all office clerical employees, guards and supervisors as defined in the Act. It is further alleged and admitted, and I find that all times since February 2, 1967, the Union has been the representa- tive of the employees in the unit described above for the purposes of collective bargaining with respect to wages, hours, and working conditions and other terms and condi- tions of employment. In addition to alleging that Respondent negotiated with the Union in bad faith and with no intention of entering into a final and binding agreement with the Union in the negotiations which began in August, the General Counsel alleges and contends that Respondent independently vio- lated Section 8(a)(5) of the Act in five separate ways: namely, failure to provide the union with certain requested relevant information, unilateral termination of an existing grievance procedure, unilateral cessation of contributions to the employees health and welfare fund and pension fund, unilateral change of working conditions by granting a $50 bonus to bargaining unit employees, and unilaterally eliminating and failing to pay overtime benefits to bargain- ing unit employees. Further, while not separately plead as a violation the General Counsel and Union contend that Re- spondent on August 18 agreed to an extension of the old contract for an indefinite period and then subsequently re- neged on that agreement. This contention is directly re- lated to the allegation of Respondent's termination of the grievance procedure and will be treated therewith. All of the other allegations will be treated separately below. All allegations must be considered in the context of Re- spondent's economic condition since the Respondent relies primarily on its financial plight in its defense to essentially all its positions taken in bargaining. That plight is reflected in the August 17 and 20 reports to the Union of Daniel R. Odom, an accountant who conducted an examination of Respondent's books and records at the request of the Union and with permission of Respondent. The reports covered the calendar years 1974 and 1975 and the first 4 months of 1976 and reflected a total loss for the period in excess of $300,000. The loss for the first 4 months of 1976 while significant did not appear to be at a rate as great as that in the earlier 2 years. Further, Odum reported in his August 20 letter to the Union that J. R. Brown, former vice- president of Respondent and then consultant for Respon- dent, had related that revenues for the period following April 30 had increased significantly although exact figures for that period were not available. That Respondent was experiencing financial difficults in 1975 was further reflected by its request to the Union through a letter of Respondent's president. G. H. Sharp, dated July 21, 1975. in which Sharp requested a meeting with Blevins to discuss the contractually scheduled pay in- crease of August 20. 1975, with an eye toward postponing that increase as a result of Respondent's operational losses. The Union's response through Blevin's letter of July 28. 1975, was that Blevins would be happy to meet with Sharp but he could see "no way" that the Union could agree to defer the wage increases. There were no meetings on this issue and apparently the scheduled increases were put into effect by Respondent. The Union does not seriously contest the existence of Respondent's financial condition. However, the Union does contend that Respondent's condition was aggravated by substantial loans to certain of Respondent's officers in 1974 and 1975, at either low or no interest rates at times when Respondent had to secure loans from other sources at high interest rates. Such loans were revealed by Odum's reports. The Union submitted its contract proposals to Respon- dent by mail on July 27, and the first meeting with Respon- dent for negotiations took place on August 9, at the Albert Pick Motor Inn in Greensboro. Blevins was the principal spokesman for the Union at this meeting and in all subse- quent meetings, but this initial meeting was also attended hby Sherrill, recording secretary of the Union, and three employee committee members. Respondent was repre- sented by its attorney and principal spokesman. John O. Pollard, Sharp. Sr.. and (Jack) Brown, the latter acting as consultant to Respondent. These three were Respondent's representatives essentially at all meetings. The August 9 meeting was utilized for the Union's explanation of its pro- posals. The Union was advised that Respondent had de- termined the cost of the Union's proposals with respect to economic matters to be in excess of a half million dollars over the proposed life of the contract. 1 he Union was fur- ther advised at this meeting that Respondent could not afford that figure and asserted that it lost in excess of $136,000 in 1974. $159,000 in 1975. and $8,000 in the cur- rent calendar year. According to the testimony of Blevins, which was not contradicted in this regard and is credited, he explained that the Union's proposal was only an initial one and that there was room for movement. In addition he pointed out that the Union had negotiated contracts with no increases in pay where necessary to an employer to get back on its feet. The parties agreed to meet again on Au- gust 18.14 I. The Respondent's alleged extension of the contract and the termination of the grievance procedure The August 18 meeting between the parties took place as scheduled with one additional member on the Union's ne- gotiating committee. At the meeting the parties discussed a number of the Union's proposals and Respondent's posi- 14 Blc.ins t.ok ha.ndrilitcn note, , f his Illectilnl sh-uinr ccellll x . l lIth subhects dlcu',ed ' hese noles aere receiled in elsdence uis ucre notes of Bledins son ',uhequent mneetingLs of August 8. 27 and Seplimber 2 I here after, the I. n[11n utillil rcd i crt.Lir rs I ak e luht.llalltls vrbatlm note c of 1I st i:ltlmculen in thr scshi e is Ihe trm.lnsrlptrt n f these , h',lth.tirl notc cre rce.csdc l n exdenc .1, ( (' I h t(. 40) I S h. S,, a,) ,) , X . i 111d SS 945 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions thereon. The critical point in the session was the al- leged extension of the old agreement which was due to expire at midnight on the following day. Blevins testified that he noted to Pollard that they were only in the second meeting on negotiations, that they had gotten very little accomplished, and that they were "still in exploration of some of the proposals." Accordingly, Blevins advised Pol- lard that the Union had no quarrel and "certainly would be willing to agree to continue working under the terms of the existing contract and continue to negotiate to see if we would reach a contract provided that the employer would agree to pay to the employees any economic or monetary items that would be negotiated during the course of negoti- ations which might be contained in the contract...." Blevins testified he added the further proviso that Respon- dent continue to apply the terms of the existing contract. Pollard responded that he would have to caucus with Brown and Sharp. Pollard did have his caucus and when he returned, ac- cording to Blevins, stated that they were agreeable to con- tinuing negotiations and to continue to live under the terms of the existing agreement provided the employees would continue to work and stay on the job and they were also agreeable to anything negotiated during the course of ne- gotiations being retroactive to August 20. Pollard then wrote up some document on the retroactivity and passed it to Blevins to sign, but Blevins rejected it with a remark indicating distrust of attorneys and then drafted his own language as follows: The parties hereby agree that any monetary or eco- nomic increases that are negotiated between the par- ties during the course of negotiations will be retroac- tive to the date of August 20, 1976, and will be paid accordingly upon ratification of the contract. It is fur- ther understood and agreed that any strike, work stop- page, walkout, slowdown, picketing if any authorized or unauthorized will terminate the agreement reached on monetary or economic items being retroactive to August 20, 1976. This language was acceptable to Pollard and both Sharp and Blevins signed the paper upon which the language was written. Blevins' notes on the meeting, apparently written after the agreement on retroactivity was signed because they re- fer to the agreement as having been "worked out," con- forms to Blevins' testimony on the matter and reflect that "Mr. Pollard advised the committee on behalf of his client that the Company would continue to live under and apply the terms of the existing contract agreement during the period of negotiations." Blevins' version of the agreement is generally supported by the testimony of two employee members of the Union's committee who were present at the August 18 session, James Lipford and Wayne Newell. Blevins testified further that in accordance with the agreement on the contract extension and in keeping with what he told Pollard at the August 18 session he had pre- pared and posted at Respondent's premises a notice to em- ployees dated August 18 reciting the agreement on retroac- tivity and noting that any strike, work stoppage, etc., would terminate the agreement. The notice to the employees fur- ther stated: "Please be advised that the current contract conditions will be adhered to during the period of negotia- tions." A copy of the notice was handed to Brown by em- ployee Lipford on August 18. There was no response to this notice by Respondent or to another notice identical to the first notice but correcting a reference to a contractual clause posted the following day at Respondent's premises. While the parties met in negotiations on August 27 and September 2, there was no reference to the alleged contract extension agreement. With respect to the grievance proce- dure the parties at the September 2 negotiating session dis- cussed Respondent's proposed change in the grievance procedure to do away with arbitration. This proposal on grievances had been alluded to by Blevins in the August 27 meeting when he generally protested and specified the ex- tensive "take aways" contained in Respondent's first con- tract proposal which had been submitted to the Union at the meeting on August 18. The old contract had provided for grievances which could not be resolved by Respondent and the Union to go to a "Piedmont Grievance Commit- tee" composed of an equal number of union representa- tives and employer representatives. The decision of the Piedmont Grievance Committee was binding upon the par- ties but if the committee "deadlocked" or failed to decide the issue, the grievance then went to an impartial arbitrator selected by the parties from a list submitted by the Federal Mediation and Conciliation Service. Respondent proposed to refer unresolved grievances to a committee composed of two representatives each of the Union and Respondent, and barring agreement or mutually satisfactory resolution of the grievance by that body either party was entitled to take economic action upon giving appropriate notices specified in the proposal. Blevins testified that in explanation of Respondent's proposal on grievances Pollard at the September 2 meeting related that Respondent was very unhappy with the arbi- tration procedure under the old contract in view of some unfavorable arbitration decisions received pointing out a specific case in which Respondent had been required to reinstate an employee at a cost to Respondent of several thousand dollars. While Blevins marked in his September 2 bargaining notes that Respondent's proposal was not ac- ceptable to the Union there appeared to be little further discussion on Respondent's grievance proposal at that meeting. Pollard at the September 2 meeting, submitted to the Union a proposed agreement not to strike during the nego- tiations and for a period of 15 days after negotiations ceased. The proposed agreement cited concerns of custom- ers concerning Respondent's ability to perform services in the event of a strike during negotiations, which concern caused customers to cease doing business with Respondent pending conclusion of the negotiations. Blevins testified that after discussion with his committee, he advised Pollard that he could not sign the document, that "we had reached an agreement on August 18 to continue working, continue to work and performing the job, that they had agreed to continue under the contract, and that that agreement was still in effect, and ... would continue to do that as long as 946 S & W MOTOR LINES. INC. we were in the course of negotiations and making prog- ress." 15 On September 7, the Union through Blevins filed a com- plaint, first step of a grievance, with Respondent contend- ing that Respondent's layoff of bargaining unit employees on September 3 was discriminatory and in retaliation to the Union's bargaining position. In the body of the grievance or complaint, Blevins referred to the agreement of the Union to continue negotiations beyond the expiration date of the contract with an agreement that any monetary or economic increases be retroactive. The grievance further stated, "during our negotiating session on August 18, 1976, the employer's attorney, Mr. Pollard, stipulated for his client, S & W Motor Lines, Inc., that having reached an agreement to continue to negotiate beyond the expiration date of the Contract, the employer would continue to work under, adhere to and apply, all terms and conditions of the Contract Agreement during the period of further negotia- tions." The grievance concluded that the layoffs were a breach of that agreement. The grievance brought a re- sponse from Pollard in the form of a letter to Blevins dated September 14, in which he refers to the statement in the grievance quoted above and said that such assertion was "absolutely false." Pollard's letter described the "agree- ment" as follows: You proposed that if the Company would consent to make any agreed-upon monetary or economic increas- es retroactive to August 20th, the Union would use its best efforts to prevent a strike or a walkout during negotiations. The Company agreed to your proposal. however, that alone was all that was agreed to. On the other hand, in the course of making known to you that the Company was willing to enter into such an agree- ment, I advised you that the Company would propose economic and monetary decreases from those set out in the previous contract. And, in this connection, I did assert to you that the Company did not immediately intend to cut back the rates of pay from those con- tained in the earlier contract. But that can in no way be construed as a stipulation that the employer would "continue to work under, adhere to and apply all terms and conditions of the contract agreement during the period of further negotiations." Pollard was called as a witness at the hearing in this matter and testified in accordance with the quoted portion of his September 14 letter. Neither Sharp nor Brown who were at the August 18 meeting when the alleged "agree- ment" had been made testified concerning the matter. Blevins responded to Pollard's September 15 letter by another letter vigorously contending his version of the "agreement" on extension of the contract. Blevins pointed out that if there was no contract extension there was no grievance and arbitration procedure to resolve employee rights and the Union would have to pursue "other ave- nues" to assure that the employees rights and economic items were protected. Thereafter, on September 17, the Union filed a new grievance involving Respondent's failure 15 On the other hand, Blevins in his testimony as well as in subsequent bargaining sessions stated that he at no time agreed not to strike Respon- dent. to pay accrued vacation pay to unit employees, and re- ferred its September 3 grievance on the layoff to the Pied- mont Grievance Committee. The parties met in negotiations again on September 24, with the same parties representing their respective sides.'6 At this meeting, the alleged contract extension was further discussed with Blevins again arguing his understanding of the "agreement" and pointing out that the Union's notices to the employees which were posted following the August 18 meeting and which the Respondent received copies of had indicated that agreement. There was no resolution of this matter and the subject turned to items for negotiation, specifically, the grievance procedure. Pollard proposed that any grievances which arose since midnight August 19 not be processed in accordance with the old contract but rather in accordance with Respondent's proposal on grievances which had eliminated the Piedmont grievance committee step and final arbitration. Pollard argued that under the old procedure Respondent had lost its right to effectively discipline its employees, that the old grievance procedure and arbitration had resulted in "decisions which [had] no relationship whatsoever to the facts presented" and that had directly affected the efficiency of operations and fi- nancial condition of Respondent. Blevins countered that the old procedure which the Union proposed to continue had been fair and workable, that without it the employees would be abused, and that in view of Respondent's agreement to extend the contract the old procedure should be used until "such a time as other procedures" were agreed to by the parties. Pollard's re- sponse was that until such time as the parties reached an agreement on grievance procedure there be no grievance procedure. Blevins replied that it appeared that Pollard was saying that the Union either take "our proposal" or there will be no grievance procedure. The minutes reflect the following response from Pollard: "I am saying that we are unwilling to accept yours and would like for you to accept ours, but in the event vou cannot accept ours, we propose that no grievance procedure be in the effect until such time as the parties agree upon a procedure to be used." Asked by Blevins how he proposed to handle dis- putes Pollard replied: "We propose to handle them in ac- cordance with our proposal. if that is not acceptable to you then I suppose you will just have to call them to our atten- tion on a case to case basis. We do not propose to handle them under any formulized procedure. We propose that that be the way any' grievance which has arisen since Au- gust 19, 1976, and that any which arises prior to agreement on this subject by the parties be handled." Blevins voiced objections but Pollard persisted and said he was not con- vinced by the Union's arguments that the old procedure be utilized and asked for other arguments. Blevins responded: "We have stated and restated our position and our reasons and neither are we convinced that your proposal or propos- als are adequate or in the best interest of all concerned parties." With respect to the grievances which were then pending and which had not begun to be processed. Pollard said '6 It was at this meeting th.a the I nin began taking suhstantialls verba- tim nlotes of the meetings 947 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent planned not to participate in the procedures under the old contract at the first opportunity for it not to participate. He added, "Now I am not sure when that will be and the Company is willing to listen to anything else the Union might have to say in the meantime and if you can change our mind we will act accordingly." Pollard con- cluded the subject by saying, "But I would like to say at this time we are convinced it is in the best economic inter- est of the Company to cease participating in the old griev- ance procedure." On September 28, the Union filed two additional griev- ances involving Respondent's sending certain truck repair work which would ordinarily be bargaining work, to Southern Express while unit employees were laid off. At the next bargaining session these grievances including an additional one filed on September 25 involving a supervis- or doing bargaining unit work were discussed. At this ses- sion which occurred on September 30, Pollard emphati- cally stated that Respondent was not going to participate in further proceedings of the Piedmont grievance commit- tee involving any grievances arising subsequent to August 19. Asked about a grievance on vacation pay due employ- ees Pollard replied that if the vacation pay accrued before August 19, Respondent would pay it when financially able but said he would have to give the Union a position on vacation pay accruing subsequent to August 19. There ap- pears to have been no specific resolution of any of the grievances discussed, nor did the parties ever agree at this meeting or any subsequent one prior to the hearing on a grievance procedure. Based upon all the foregoing the General Counsel and the Union contend that Respondent entered into an agree- ment to extend the old contract, that it reniged on that agreement, and refused to process grievances arising subse- quent to August 19 and the old contract extension agree- ment in accordance with the grievance procedure under the old contract as extended. The General Counsel urges that the filing of the September 7 grievance was the "trig- ger" for the retraction of the extension agreement. It is also argued that even if there was no agreement to extend the contract Respondent in effect unilaterally changed the grievance procedure in violation of Section 8(a)(5). Respondent in its brief, consistent with its evidence also related above, argues that there was no agreement to ex- tend the contract and that it did not unilaterally eliminate the grievance procedure. In regard to the latter Respondent argues that "faced with a rigid refusal to participate in a joint-committee arrangement such as [the Union] had pro- posed, the Company had no choice but to propose elimina- tion of a formalized grievance procedure altogether." While the proposal to eliminate the procedure was initially made on September 24, Respondent argues that it pointed out that it would be sometime in the future before it would become necessary to actually decide whether to stop parti- cipating in the old grievance plan and offered to negotiate further, but the Union showed no interest and did not re- quest additional negotiation on the subject. Instead, Re- spondent contends, the Union "acquiesced" in the change by bringing the September 28 grievances up at the Septem- ber 30 meeting, and requesting Respondent's position on resolution of them. Conclusion The issue as to the contract extension is important to a determination of whether Respondent was contractually obligated to the grievance procedure to include the submis- sion of disputes to both the Piedmont grievance committee and finally to arbitration. The Board has held that an em- ployer's refusal to arbitrate a grievance which arose after the expiration of a collective-bargaining agreement con- taining an arbitration provision does not violate Section 8(a)(5) of the Act. See The Hilton-Davis Chemical Company, Division of Sterling Drug, Inc., 185 NLRB 241, 243 (1970). This is because arbitration is a "consensual surrender of the economic power which the parties are otherwise free to utilize," and that consensual surrender is contractually premised. Arbitration is said to be a creature of the con- tract. If the contract expires, the arbitration commitment expires. However, if there is an agreement to extend a con- tract containing an arbitration provision it necessarily fol- lows that the obligation to arbitrate remains. See Taft Broadcasting Co., WDAF AM-FM-TV v. N.L.R.B., 441 F.2d 1382 (C.A. 8, 1971). Whether there was an agreement on an extension of the old contract in the instant case requires a resolution of the conflicting testimony of Respondent's attorney, John Pol- lard, on the one hand, and the Union's witnesses, Blevins, Lipford, and Newell on the other hand. Pollard in his testi- mony very emphatically denied that he reached any agree- ment with the Union on a contract extension August 18. According to Pollard, the only agreement reached, other than an agreement on another negotiating meeting date was the written agreement drafted by Blevins and signed by the parties relating to the retroactive application of any economic increases. It was also Pollard's testimony that he told the Union committee following the execution of the written agreement on retroactivity that he did not want to mislead anyone, that notwithstanding the agreement on re- troactivity Respondent's proposal submitted to the Union that day contained a number of "take-aways" items, but added that before any changes were implemented they would be discussed with the Union.1 7 This latter assertion was not specifically denied by General Counsel or union witnesses. Blevins' testimony was equally emphatic that Respon- dent did agree to the contract extension although he ap- pears to have relied substantially on his notes on the point during his testimony. Union committee members Lipford and Newell were not as emphatic or clear in their support- ing testimony. From a demeanor standpoint there is no readily appar- ent basis for crediting the Union's witnesses over Pollard or vice versa. All the witnesses on the issue gave the ap- pearance of sincerity. However, based on all the circum- stances, I am not persuaded that Respondent in fact agreed to a contract extension for a number of reasons. First, in its initial notice to the Union prior to initiation of bargaining on the new contract, Respondent had communicated to the T While Respondent's proposals were submitted to the Union at the Au- gust 18 meeting it does not appear from the record that the Union had an opportunity to review them during the meeting. 948 S & W MOTOR LINES, INC. Union its desire to terminate the old contract, not modify it. In view of Respondent's economic condition and the contemplated "cuts" in costs this notice constituted more than simply a technical notice to forestall automatic re- newal of the contract. Thus, and particularly in view of Respondent's financial plight, it would have been illogical for Respondent to agree to an extension of the contract for an indefinite period. Secondly, while an agreement not to strike might well be a persuasive factor in agreeing to a contract extension it is clear from the record, and even admitted by Blevins, that the Union never agreed that it would not strike at sometime or another. Had there been a contract extension the Union would have been contractu- ally bound not to strike in view of the no-strike provision in the contract. Furthermore, an agreement not to strike is of little value unless it is of some specified or determinable duration. As seen by its refusal to agree to the proposal of Pollard on September 2 requiring a 15-day notice of intent to strike the Union was free to strike anytime it decided to forego the retroactive application of any negotiated in- creases. I' Thus, there was no real quid pro quo for Respon- dent's agreement to a contract extension. Thirdly, the writ- ten agreement of August 18 is very clear on the extent of the parties' agreement. Blevins himself, being distrustful of lawyers, drafted it. Had there been a clear understanding regarding a contract extension there is no reason why the point would have been omitted. As drafted it was obvious- ly and readily acceptable to Respondent since an agree- ment on retroactivity for negotiated increases presented no problem to Respondent in view of its contemplated and proposed "take-aways." That this was contemplated by Pollard is revealed by his uncontradicted testimony that he told the Union representatives after signing the August 18 agreement that he did not want to mislead anybody, that Respondent's proposal did involve "take-aways," but changes would be negotiated with the Union. Respondent's failure to respond to the Union's notices to August 18 and 19, likewise does not constitute an ac- knowledgment of an agreement to extend the contract. The notices at most reflected the Union's commitment to adhere to the contract terms. It may well be that the Union and its representatives thought that there was an agreement on extending the con- tract. However, based on all the foregoing, I am not per- suaded that there was ever a "meeting of the minds" be- tween the parties on a contract extension. I conclude that only the written agreement on August 18 reflects the extent of the complete understanding between the parties. Ac- cordingly, I find that the General Counsel has not estab- lished by a preponderance of the evidence that there was an agreement to extend the contract. Thus. there was no duty to arbitrate grievances as a result of a contract exten- sion. Hence, Taft Broadcasting Co., supra, has no applica- tion to the instant case. Accordingly, and under the Board's holding in Hilton- Davis, supra, Respondent, although it could not "abandon I' Indeed. at the November 18 bargaining meeting, the first one after the strike, Blevins described the agreement thusly: "We agreed we would con- tinue to negotiate and in the event that a strike occurred. then. of colurse. everything was up for grabs as to the agreement of retroactilt " established channels for bargaining over the employee grievances" was not bound to continue the arbitration pro- cess subsequent to the expiration of the contract. In the instant case. of course, the "arbitral process" included the step involving the Piedmont grievance committee since its findings could be binding on the parties, as contrasted with a committee decision which would not be binding and could either be appealed or leave the parties free to resort to other economic or legal remedies. See. e.g., Newspaper Printing Corporarion. 221 NI.RB 811, 820) (1975). The Union in its brief contends. however, that the Board's position in Hilton-Daris had been put in question by the Supreme Court's ruling in Nolhde Brother., Inc. v. L.ocal No. 358, Bakery & Confectrinerl lI,'orA ,rs Ilnion. ,FL- (C10, 430 U.S. 243 11977). That case involved an em- ployer's obligation to arbitrate a dispute over severance pay as a result of a p; ,nt closing although the employer's plant closing occurred after the contract with the unoton had been terminated. The Court. contrary to the employ- er's contention that only those grievances which arose prior to the contract termination could be arbitrated, found the failure of the expired contract to exclude from arbitration a dispute which arises under the contract but which is based on events that occur after its termination indicated that the parties did not intend their arbitration duties to terminate automatically with the contract. Further. the Court cited the longstanding Federal labor policy favoring arbitration and stated: The parties must be deemed to have been conscious of this policy when theN agree to resolve their contrac- tual differences through arbitration. Consequently. the parties' failure to exclude from arbitrability contract disputes arising after termination, far from manifest- ing an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that the)' intended to arbitrate all grievances arising out of the contractual relationship. In short. where the dispute is over a provision of the expired agreement, the pre- sumptions favoring arhitrability must be negated ex- pressly or by clear implication. Id. at 255. The Union therefore argues that since the grievances herein involved with respect to the layoffs and vacations grew out of the contract and, indeed, cited the articles of the contract alleged to have been violated. the dut' to arbi- trate them survived the expiration of the contract. Assuming. argulendol that Hilton-Davis is no longer via- ble law. I would nevertheless find that the arbitration pro- cess herein did not survive the contract expiration since I would find, in the words of the Court in Nolde Brothers. supra. that the presumption favoring arbitrability has been "negated expressly or by clear implication." This is be- cause under article VII. section 5 of the expired contract. the parties were bound to be parties of the Piedmont griev- ance committee during the term of the "Contract Agree- ment" only? The agreement then specifically limits the Sec s in full is ai fill, : A (iirle.ancc ( lrnmicttec C nlrl lnL of .tlw rcprsc tncatlte .iffili.ited wilth hIe -.islern ( inftrenLe ,Of teanistcrs nox one of which shill he with the I ocail t niln with which thc crCie lanl iS .ifflhated, and toiU ( 'nr inrl lle( 949 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligation to participate in the Piedmont grievance com- mittee proceedings to the duration of the contract. Inas- much as the committee proceedings are a necessary step in the arbitral process the clear implication is that the parties did not intend arbitration to extend beyond the contract term for grievances arising subsequent to the expiration of the contract. The presumption favoring arbitrability re- ferred to in Nolde Brothers was thus negated. Accordingly, and based on all the foregoing, I find that the arbitration provisions including the Piedmont griev- ance committee step did not survive the expiration of the contract and that Respondent by refusing to submit to the steps of the grievance procedure involving the "Commit- tee" and arbitration did not unilaterally eliminate the grievance procedure and thereby violate Section 8(a)(5) and (I) of the Act. 2. The alleged refusal to supply information From time to time in August and September, Respon- dent laid off and recalled a substantially large number of its employees in the bargaining unit represented by the Union as well as other employees outside the unit. Accord- ing to the explanation given by Respondent to the Employ- ment Security Commission of North Carolina the layoffs resulted from a "labor dispute." The significance of such an excuse is that under North Carolina law employees in- volved in a labor dispute cannot receive unemployment compensation. The employees protested the reason given for their layoffs in a hearing before Howard G. Doyle, special appeals deputy of the Employment Security Com- mission of North Carolina on September 15.20 Blevins. Sherrill, and attorney Renn Dunn appeared for the em- ployees at the hearing. The Union by letter from Blevins to Sharp dated Sep- tember 15 requested of Respondent copies of letters of lay- off to all bargaining unit employees laid off for the payroll week ending August 1 through September 12. In addition Blevins requested: I further request copies of layoff notices issued to non- bargaining unit employees which have been issued since the date of Thursday, September 2, 1976. In the event a formal letter was not used in the layoff of non-bargaining unit employees, a copy of the re- representatives of the Employer, no one of which shall be employed by the t'mployer of which the grievant is employed, shall be formed with in five (5) working days after the meeting in the above steps Both the Employer and the Union may be represented in the presen- tation of the grievance to said Committee and a majority decision of said Committee shall he final and binding on both the Union and the Employer. If no majority decision is reached by the Committee, the grievance mal be given to an impartial arbitrator for a decision by either party. Each party shall hear the expense of its representative on the grievance committee. The Grievance ('onlmittee referred to above is known as "The Pied- mont Grievance Committee" I'he Parties agree to remain parties to the Piedmont Griesance Commitltee during the term of this Contract Agreement and to use the (Committee as a means of peaceful settlement of Grierance during the term of this contract agreement. 2o Doyle ultimately ruled on October I, that the employees were not laid off subsequent to August 19. as ai result of a labor dispute. His decision was sustained by the comnnission by order dated May 25, 1977 spective employee's temporary layoff form issued to the Employment Security Commission will suffice. I further request a complete list of the names, Social Security numbers, addresses, and date placed on lay- off status of each non-bargaining unit employee who has been placed on layoff status since the date of Thursday, September 2. Blevins testified that the requested information was nec- essary to ascertain whether Respondent was treating bar- gaining unit employees differently from nonbargaining unit employees with respect to the layoffs. Blevins said he had information that nonbargaining unit employees re- ceived a different kind of explanation on their layoff slips so as to enable them to draw unemployment compensation while bargaining unit employees were not so allowed. It is undisputed that Respondent never provided the spe- cific information on nonbargaining unit employees re- quested above. Respondent's only explanation as ex- pressed by Pollard at the September 24 bargaining meeting was that Respondent did not think the Union was entitled to the nonbargaining unit information. The General Counsel and Union contend that the infor- mation requested was relevant and the failure to provide it violated Section 8(aX5). Respondent in its brief urges that the Union wanted the information for the sole purpose of using it to the "detriment" of nonbargaining unit employ- ees in the hearing before the Employment Security Com- mission, and thus was for an improper purpose which pre- cluded "any claim of entitlement to the demanded information." Conclusion It is an axiomatic that an employer must provide a col- lective-bargaining representative information necessary to it for the performance of its duties. This applies to informa- tion not only proper for the negotiation of a contract but also for the policing of a contract. See N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967); J. 1. Case Company, v. N.L.R.B., 253 F.2d 149 (C.A. 7, 1958). The requested infor- mation must be relevant to bargainable issues whether or not the information requested involved unit or nonunit em- ployees. Certainly, information as to nonunit employees can be relevant to bargainable issues and the union's per- formance of its representative obligations. See Curtis- Wright Corporation, Wright Aeronautical Division v. N.L. R.B., 347 F.2d 61 (C.A. 3, 1965). See also General Elec- tric Company, 199 NLRB 286 (1972). Here the information requested by the Union was clearly relevant to a determination before the Employment Securi- ty Commission of North Carolina of the basis for lay off-a matter growing out of the employment relationship of the bargaining unit employees, and to the Union's repre- sentation of those employees before that body 21 in taking a position against Respondent's asserted reasons for the lay- offs. It was further relevant to the Union's September 3 21 Since the issue before the commission involved the existence of a labor dispute the contemporaneous layoff of nonbargaining unit employees for reasons than the existence of a labor dispute would have a direct bearing on, and call into question, the validity of Respondent's asserted reason for the layoff of unit employees, 950 S & W MOTOR LINES, INC. complaint and a determination by the Union of whether Respondent was discriminating against bargaining unit employees in an effort to penalize them because of their union representation, 22 and, less directly, to Respondent's assertions in negotiations regarding its economic plight. Respondent has submitted no evidence that the Union in- tended to use the requested information to the "detriment" of nonunit employees. Accordingly, I find that by refusing to grant the Union the information requested regarding the nonbargaining unit employees Respondent violated Sec- tion 8(a)(5) as alleged in the complaint. 3. The $50 per trip bonus to nonstrikers The complaint alleges that Respondent violated Section 8(aX5) of the Act by unilaterally granting a $50 per trip bonus to nonstrikers. Respondent's brief admits that when the strike began by the Union, Respondent began paying $50 per trip to nonstriking over-the-road drivers. This was forced by the testimony of General Counsel witness Gur- ney Wyatt and the admission of Respondent's President Sharp who testified that he had made the decision to start the bonus payments and that the decision had been imple- mented without prior consultation with the Union. 3 Sharp initially testified that the purpose of the "bonus" was to cover "expenses" for the drivers who were working during the strike. He was unable to correlate the flat amount paid to any extra expenses the working drivers encountered as a result of the strike. Finally, he also testified that the $50 was "to encourage more people to come back to work." From evidence presented in the record (G.C. Exh. 93 and 94) the "bonuses" resulted in a substantial extra cost to Respondent, approximately $70,000, for the period from January through August 1977, and a boon to some drivers who earned as much as $450 per month extra in "bonuses." Respondent contends that there was no change of previ- ously existing conditions represented by the grant of the "bonus" because Respondent had a right to reimburse em- ployees for extraordinary expenses. Respondent further ar- gues that even if the bonus constituted pay rather than reimbursement of expenses it was allowed under the ex- pired contract, specifically Article XXXIII, (G.C. Exh. 2) 24 Thus, Respondent contends that the payment of more 22 The expired contract had a clause. art. XVII. which prohibited discrinl- ination by Respondent against employees because of their union member- ship or activities. Pollard had maintained in negotiations that Respondent was not pa,- ing such a bonus. On one occasion, the bargaining session of Fehruary 8. 1977. when question by the Union if he denied payment of the bonus Pol- lard responded, according to the notes of the meeting {G.C. Exh 58). 'Ye, And if you are successful in conning the Labor Board into beliesing that I will deny it in my answer." Sharp was present at the meeting and made no effort to correct Pollard. After initially denying the $50 "bonus" again at the March 29, 1977, session Pollard finally admitted it. 24 Art. XXXIII provides: All employees covered by this Agreement shall be paid for all inme spent in the service of the employer. and for all duties performed for the employer as instructed. The time spent in the service of the employ- er and for all duties performed which in the emplover's ser'ice Is inl- tended to cover situations such as, but [not] limited to. delay tilne due to waiting for instructions when calling in for destination: pickup anid or delivery points, etc.... Rates of pay provided for in this Agree- ment shall be minimum. money for additional services, i.e., driving under condi- tions of harassment by picketers was entirely consistent with the contract. And finally, in this regard, Respondent contends that it would have been a futile gesture to have negotiated with the Union on the matter since the Union would not have agreed to the "bonus." and the law will not compel an obviously futile act. Conclusion It appears. and I conclude, that the Board's decision in Aero-Motive Manufacturing Companv, 195 NLRB 790 (1972), enfd. 475 F.2d 27 (C.A. 6, 1973), cert denied. 414 U.S. 922, cited by the Union in its brief, is dispositive of this issue. In that case the Board considered the issue of "whether the payment of a special cash bonus to employ- ees who refrain from protected, concerted activity (plus the nonpayment of such a bonus to employees who had per- sisted in engaging in the protected strike activity) tends to interfere with the free exercise of the statutory right of em- ployees . . . to engage in strike action." There, like here, a defense of Respondent was that its motive in making the payments was to compensate the nonstrikers for the special risks which were involved in view of the violence which took place during the strike. Responding to this defense the Board said: However the Respondent may have characterized the payments, we believe that the principal impact of the payments will be to discourage employees from engaging in protected activity in the future. And we think this is true even if Respondent's heart was pure. Thus even if Respondent's officers and agents who decided upon the bonus payments acted solely out of a desire to provide additional compensation to em- ployees whom Respondent believed to have risked personal harm, our decision herein would be no differ- ent. We are concerned not with the subjective motiva- tion of Respondent but with the objective impact of its action. lid. at 792.1 The Board went on to state that the only visible line drawn between employees who received the payments and those who did not was the line between strikers and nonstrikers. Accordingly, the Board concluded: Whatever Respondent's motives may have been. therefore, it seems to us that the impact on employees is plain for all to see- that nonstrikers did, and pre- sumablN will in the future, receive special benefits which strikers will not receive. Employer actions which have this impact are violative of Section 8(a)( 1). [Id. at 792.] The Respondent's "bonus" here therefore cannot be de- fended on the basis of the alleged risks to the nonstrikers, even if that was in fact the reason for the institution of the bonuses. But beyond that Sharp admitted that the bonus was designed, at least in part, to induce employees on strike to come back to work. Consequently, Respondent's motive was not pure, but rather deliberately and flagrantly calculated to interfere with the employees right to strike 951 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is just as unlawful as any threat or promise of benefit to induce employees to return. See, e.g., American Steel Building Company, Inc., 208 NLRB 900 (1974). Accord- ingly, I find that the payment of the "bonus" was indepen- dently violative of Section 8(a)( ) of the Act. The Aero-Motive case, likewise resolves the 8(a)(5) con- tention with respect to the bonus, for the Board there also held that the Employer's failure to advise the Union and bargain with it concerning the payments constituted a re- fusal to bargain within the meaning of the Act. As the Board pointed out, had the employer advised and confer- red with the Union prior to its decision on the payments to the nonstrikers it may well have been persuaded against its unlawful action in deciding upon and granting the pay- ments to the nonstrikers. The same is true in the instant case, and it likewise answers Respondent's argument con- cerning the futility of advising and bargaining with the Union on the bonuses. Even if it could be expected that the Union would not agree to the proposal the Union may have persuaded Respondent against its unlawful course. In any event, it has never been the law that an employer may embark upon unilateral action simply because it may be predicted that the Union would not agree to the employer's proposed action. Finally, Respondent's defense based on the contract is nothing more than afterthought. It ignores Sharp's admis- sion as to the unlawful inducement motivation. Moreover, it in no way grants a license to Respondent to unilaterally establish rates of pay or to grant bonuses unrelated to rates of pay. Considering all the foregoing, I find that Respondent violated Section 8(a)(5) through its deciding upon and granting the $50 per trip bonus to nonstriking truckdriv- ers. 4. The alleged unilateral change in overtime payments The contract between the parties which expired on Au- gust 19 provided under article XXX for the payment of time and one half to employees who worked in excess of 8 hours in one day or 40 hours in one week. Respondent's contract proposal submitted to the Union on August 18, and a subsequent one submitted on May 19, 1977, pro- posed payment of overtime to employees at time and a half only those hours in excess of 48 hours in 1 week. There was some discussion between the parties at the September 24 negotiating session regarding Respondent's proposal on the overtime. At that time Blevins told Pollard he could not agree to such a proposal. The matter was not discussed at subsequent sessions although there was refer- ence to it and Blevins made inquiries about it set out be- low. However, there was never any agreement between the parties on Respondent's proposal on overtime. The evidence establishes and Respondent concedes in its brief that on December 3, Respondent implemented its overtime proposal by paying overtime to employees only after they had worked 48 hours in I week. Nevertheless, Respondent through Pollard in a negotiating session on January 31, 1977, denied, when asked by Blevins who had received some information on the point, that its overtime proposal had been implemented. Subsequently, in June 1977, according to Blevins' uncontradicted testimony he received firm evidence based on employee paychecks that Respondent was not paying overtime after 40 hours in I week. The Union then filed the charge in Case I I-CA- 7108. The General Counsel and the Union contend that Re- spondent's implementation of its overtime proposal in the absence of impasse constituted a unilateral change in con- ditions of employment in violation of Section 8(a)(5) of the Act. Respondent's position is that there was an impasse as of September 24, when the Union said it could not agree to the Respondent's proposal. Furthermore, Respondent rais- es Section 10(b) as a defense herein contending that even if the change in the basis for overtime was otherwise violative of the Act the charge thereon was not filed within the 6 month period following the change. 25 Conclusion There is no question but that Respondent's change in the basis for overtime constituted a change in conditions of employment about which Respondent was required to bar- gain. Respondent concedes this much in its brief. If a bar- gaining impasse existed, however, Respondent could have lawfully implemented its proposal. On the record before me I can find no such impasse however. The Union's state- ment that Respondent's overtime proposal was unaccept- able did not leave Respondent free to implement its de- sires. The Union's response must be considered in the context of complete negotiations. It did not constitute a rejection of all alternatives. There was still room for bar- gaining on the subject. I therefore find that there was no impasse on Respondent's overtime proposal when Respon- dent implemented them. I also find without merit Respondent's argument that Section 10(b) of the Act precludes a finding of a violation based on the December implementation of Respondent's overtime proposal. First, in this regard, I note that the Union's charge filed in Case 11 -CA-6876 in January 1977, alleged a violation of Section 8(a)(5) involving unilateral modification of terms and conditions of employment by Respondent through Respondent granting of increases in compensation (the "bonuses") to employees without bar- gaining with the Union. That charge, I find, would in itself have been sufficient to provide a basis for proceeding on Respondent's unilateral action on overtime. See Fant Mill- ing Company, 360 U.S. 301 (1959); North County Motors, Lid., 133 NLRB 1479 (1961). The January charge, timely under 10(b) with respect to Respondent's acts in Decem- ber, would itself have supported a complaint allegation on the subsequently discovered unilateral change in overtime, since Respondent's unilateral action was sufficiently re- lated to the allegations of the charge. Secondly, even if the January charge was not broad enough to encompass the subsequently discovered unilater- 15 Sec 10(b) provides in pertinent part " IN]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .... " 952 S & W MOTOR LINES, INC. al action Board law provides that the running of the 6 month period under Section 10(b) may be tolled during that time when the unfair labor practice is fraudulently concealed. International Ladies Garment Workers Union, AFL-CIO v. N.L.R.B., 463 F.2d 907 (C.A.D.C., 1972). The 10(b) period may also be tolled even where there is no fraudulent concealment so long as the person adversely affected is not put on notice of the act constituting the unfair labor practice. See Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Shippy Enterprises, Inc.), 211 NLRB 222 (1974). Here Respondent, whether intentionally or otherwise, clearly misrepresented to the Union that it had not made a change in overtime payments when in fact it had. While the Union may have initially had information causing it to make the January 31 inquiry about Respondent's change it was entitled to reply upon Respondent's representations until it discovered clear evi- dence to the contrary. Accordingly, I find that the 10(b) period on the point was tolled by Respondent's misrepre- sentation of fact which served to conceal its unlawful act. I therefore find that Respondent violated section 8(a)(5) of the Act as alleged in the complaint through its unilateral change in the payment of overtime benefits. 5. The alleged unilateral cessation of health and welfare and pension fund contributions The complaint alleges that Respondent violated Section 8(a)(5) of the Act in that on September 30, Respondent "unilaterally announced its intention to cease making con- tributions to the employees health and welfare fund and pension fund and thereafter ceased making contributions thereto." Under articles XXXVIII and XXXIX of the pre- vious contract between the parties Respondent made pay- ments into the Central States, Southeast and Southwest areas' health and welfare plan and to the pension fund administered by that same body. In its initial proposal sub- mitted to the Union on August 18, Respondent made no proposals on health and welfare or on pensions. Instead, its proposal simply indicated that its proposals on these items would be submitted later. There appears to have been no discussion between the parties on the subject of health and welfare and pensions until the meeting on September 30. On September 30, Respondent proposed to the Union that its contributions to the health and welfare plan and the pension plan cease effective October 1, not only for the duration of negotiations but permanently. Respondent, through Pollard, blamed Respondent's financial situation for this proposal, but noted that it was investigating other plans that were cheaper and with better benefits and in the event Respondent subsequently offered such a plan to the Union and it did provide better benefits it would make them retroactive to August 18. However, Respondent pro- posed no coverage for employees during the interim period unless the ultimate agreed upon plans provided increased benefits in which case coverage would be retroactive to August 19. Pollard, in a letter to Blevins dated October 1, set forth in writing the position Respondent had taken in negotia- tions the day before. The letter, General Counsel's Exhibit 47(a), states in part: Further, as to the health and welfare and pension plans, the Company proposed to you that the cessa- tion of contributions to the present plans would be permanent inasmuch as the Company's contract pro- posal makes provisions for different less expensive plans, the details of which are to be submitted to you at a later date. However, the Company has proposed to retain essentially the same vacation plan. When you stated to me simply that the Union "could not agree" to these proposals, I advised you that the Company would not need to make the October contri- butions to the health and welfare pension plans until November and, therefore, if the Union wished to dis- cuss our proposals further up until the time it became necessary to act, that the Company would be available for such discussion.... The letter constitutes a fair representation of Pollard's statements to the Union on September 30. The Union nev- er received the October I letter however and Pollard sent another copy of the letter to the Union on October 28. The second letter was refused by the Union due to insufficient postage. It was not finally delivered to the Union until November 18 at a bargaining session between the parties at the Greensboro Holiday Inn Airport.26 There appears to have been no discussion at the November 18 meeting about health and welfare or pensions. Respondent for the first time submitted a proposed hos- pitalization plan by mail on December 17. There were no details for the plan which was proposed to become effec- tive January 1, 1977-only the name of the carrier, the cost to each employee to be paid by Respondent, and the cost to employee dependents to be paid by the employee. However, it was not until the next meeting between the parties on January 31, 1977.2 7 that the Union was provided with a cop) of Respondent's proposed hospitalization plan, The plan. which provided for a substantial decrease in ben- efits as compared to the previously existing health and wel- fare plan, was described by Pollard at the January 31 meet- ing as being better than being without benefits as employees were at that time. Pollard proposed to put the Respondent's hospitalization plan into effect immediately. The Union raised questions on the plan and continued to do so at subsequent meetings on February 8 and 17. and March 4 and 29, 1977. Finally, Respondent implemented its proposed hospitalization plan on March 31, 1977.28 It is clear that Respondent never at anytime proposed a pen- sion plan although it ceased making contributions to the previous pension plan at the same time it ceased contribu- tions to the health and welfare plan on October 1. Respondent. citing N.L.R.B. v. J. P. Stevens & Company, Inc., 538 F.2d 1152 (C.A. 5, 1976), argues that Respon- dent's only obligation with respect to the admitted change I2 The u.nmon had legal counsel. Renn Dunn. at this particular meeting. 1 he Januars 31 meeting was at the (,reensboro Albert Pick Motor Inn and the tinion ' , attornes at the meeting %as Tom Kohn, apparently in place of Renn Dunn Kohn attended all subsequent negotiating sessions "' The implementation of Respondent's hospitaiization plan is not alleged as i unil.ateral action or olher lse siolaltie of Sec. 8(aHX) 953 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the health and welfare plan was to notify and bargain with the Union before effecting the change so as to give the Union an opportunity to bargain. It is claimed that Re- spondent did that, stated its reasons for its proposals in this area and afforded the Union all requested data and infor- mation. Respondent also points to the fact that the propos- al on ceasing contributions on health and welfare and pen- sion although effective on October I was not an act of finality until late November when contributions for the Oc- tober period would become due, and yet the Union did not seek bargaining on the point. It is not open to question that health and welfare plans as well as pension plans provided for in an expired collec- tive-bargaining contract constitute aspects of employee wages and terms and conditions of employment which sur- vive the expiration of the contract and cannot be altered without bargaining. See Harold W. Hinson, d/b/a Hen House Market No. 3. 175 NLRB 596 (1969), enfd. 428 F.2d 133 (C.A. 8, 1970). Here I have previously found that there was no agreed upon extension of the old contract between the parties. Therefore, the Respondent's cessation of pay- ments to the health and welfare and pension funds would not be unlawful unless Respondent failed to give the Union notice and opportunity to bargain on the proposed cessation. Respondent's proposal on the subject of the cessation of payment of "fringes" was made on September 30 and was to be effective the following day. Thus, there was not only clear notice to the Union about Respondent's desires, but also an opportunity to bargain was afforded to the Union. While the time between the proposal to cease paying fringes and the proposed effective date for action was brief Respondent through Pollard made it clear that if the Union wanted to bargain more on the subject it could do so because the payments for the benefits for October would not be due until November. There was, then, a sub- stantial period of time available to discuss the subject be- fore employees would be adversely affected by Respon- dent's proposed action. The Union, however, did not ask to bargain further on the subject. No counterproposals were offered by the Union nor did it request deferral of imple- mentation of Respondent's proposed action.29 Rather, it appears that the Union relied, in part at least, upon the strike beginning October 16,30 as a response to Respon- dent's proposals generally. Under these circumstances, I cannot conclude that Re- spondents discontinuance of payments to the health and welfare fund and pension funds was an unlawful unilateral action in violation of Section 8(a)(5). The Union was given notice and an opportunity to bargain on the subject. The Union's opposition to Respondent's proposed course was fixed and determined. The Union made no attempt to per- sue the matter although there was time to do so. The strike was not effective in breaking the deadlock on the subject 2 It is significant that Respondent also on September 30 proposed to eliminate the previously existing vacation plan effective October 1. While there was no evidence the Union agreed to this it was not alleged as a violation of the Act "'The employees in a meeting on October 2 rejected all Respondent's proposals to that time. before Respondent's cessation of paying the fringe benefits became irrevocably effective. 3 I therefore find Respondent did not violate Section 8(aX5) in ceasing to make the pay- ments to the health and welfare and pension funds provid- ed for under the expired contract. 6. The Respondent's alleged surface bargaining The General Counsel and the Union contend, and the consolidated complaint alleges, that Respondent negotiat- ed with the Union in bad faith and with no intention of entering into any final and binding agreement maintaining an inflexible attitude and position on many major issues, both economic and otherwise, and made no real attempt to reconcile the differences between the parties. Respondent again predicates its defense upon its financial plight, but also argues that any failure of the parties to agree was due "strictly and solely to an absolute intransigence on the part of the Union." Generally surface bargaining violations find support to a large extent upon an examination of bargaining tactics and comparisons of proposals and counterproposals which may reveal an absence of an intent to reach agreement on one side or the other as opposed to simple hard bargaining. Collective bargaining "presupposes a desire to reach ulti- mate agreement" and "to enter into a collective bargaining contract." N.L.R.B. v. Insurance Agents' International Union, AFL-CIO, 361 U.S. 477, 485 (1960). In the instant case an examination of the Respondent's contract propos- als show, as Respondent readily admits, that Respondent sought to "take away" many of the benefits employees had enjoyed under the contract which expired on August 19. Respondent's position on such "take aways" was that they were related to "economics" and necessary due to Respon- dent's financial predicament. That such "take aways" would constitute proposals which predictably no self re- specting Union could accept 32 is not conclusive as to Re- spondent's bargaining motivations in the absence of some showing that they were unjustifiable and not proffered in good faith. Thus, an enumeration of some of the "take aways" is helpful in understanding how, and whether, they relate to Respondent's economic defense. Respondent's initial con- tract proposal of August 18 contained these "take aways" and served as the primary basis for discussion in all subse- quent bargaining sessions until Respondent submitted its second contract proposal on May 19, 1977. 33 Under the expired contract the Union was not liable for unauthorized acts of job stewards. Respondent's proposal contained a provision making the union liable for actions " Even if there was no impasse on Respondent's proposal to cease the fund payments prior to the strike there is Board precedent indicating that it would have been freed to implement its proposal after the strike. See Leveld Wholesale, Inc., 218 NLRB 1344 (1975). 12 See N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131 (C.A. I. 1953). cert. denied 346 U.S. 887. 33 In addition to those 1976 bargaining sessions already noted herein the parties also met in Greensboro on January 31, February 8, 17, March 4, 29, June 29, and September 9, 1977 All these meetings were attended by essen- tially the same parties who attended the earlier sessions. Blevins continued to be the primary spokesman for the Union but was assisted by attorney Tom Kohn. Respondent's principal spokesman continued to be its attorney, Pollard. 954 S & W MOTOR LINES, INC. of the steward, unauthorized or not. Respondent's explana- tion for the proposal was its experience about 3 years earli- er where a steward without union authorization had picket- ed for about 45 minutes before the Union acted to remove the picket. Respondent's position on this proposal has re- mained firm in negotiations as has the Union's opposition to it. Respondent's proposal on the grievances procedure, which it has consistently adherred to, was to eliminate the Piedmont grievance committee step and arbitration. In- stead, Respondent proposed a grievance committee com- posed of two representatives of the Union and two of Re- spondent. Failure of this committee to resolve a grievance would leave the parties free to resort to legal or economic action. Respondent's explanation for the proposal was that it did not like arbitration and had lost some costly earlier arbitration decisions. On September 9, 1977, the Union proposed doing away with third party arbitration except when mutually agreed upon. Respondent did not immedi- ately accept the proposal but took it under advisement. In connection with consideration of its proposed griev- ance procedure it is to be noted that Respondent proposed a new no-strike clause. While the old contract had con- tained a no-strike provision Respondent's proposed provi- sion even prohibited unfair labor practice strikes. Respondent's proposal contained a broad management rights clause to replace a clause in the old contract pro- hibiting subcontracting. The proposed management rights language is as follows: Except as limited or restricted by the terms of this Agreement, the Company shall have all rights and pre- rogatives which it would by law have in the absence of this Agreement, with respect to the management and operation of its business, and it is agreed that changes in business practice, the manner of operating units of the business, the performance of the Company's obli- gations as a regulated carrier, the decisions and ac- tions of the Company on other business and operating questions shall give rise to a grievance of the employ- ees or the Union. Respondent also proposed to reduce the period of recall tenure of laid off employess from 2 years to 6 months, and to reduce the period for absences without reporting in re- sulting in a break in seniority from 72 hours to 24 hours. Respondent further proposed a complete elimination of se- niority rights in transfers upon opening, closing, or merger of terminals. The contract term proposed by Respondent was I year as opposed to the 3-year contract period covered by the old agreement. No explanation appears for the proposed short- er period. Respondent never withdrew its proposal in this regard even though negotiations herein exceeded I year in length. Another clause proposed by Respondent provided for the right to discharge employees for failing to cross picket lines regardless of the reason for the picket line. Again there appears to be no explanation for Respondent's need for such a provision and no demonstration of previous ex- perience which may have constituted a hardship on Re- spondent or caused it concern in this area. More directly related to economics Respondent pro- posed a reduction in paid holidays from eight to four, pro- posed to eliminate the 40-hour weekly and 8-hour daily guarantees, proposed to eliminate payment of transporta- tion expenses to the home terminal of any employee dis- charged on the road, proposed a reduction in pay for driver's time during breakdowns, and proposed to reduce premimum pay for holiday work. Respondent's action in proposing and implementing its proposals on the cessation of payments to the health and welfare and pension plans have already been referred to herein. The foregoing represents only the major "take-away" items. There were some lesser ones which need not be enu- merated. These proposals evoked repeated responses from Blevins to the effect that the Union was not interested in negotiating provisions that would take away what the em- ployees had previously enjoyed. Nevertheless, the Union did, at least on February 17, 1977, offer to meet Respon- dent's financial problems by agreeing to no monetary in- creases in wages. Notwithstanding its economic plight Respondent on May 19, 1977, proposed a 2-1/2-cent-per-mile increase in the mileage rates to its northend drivers, 3/4-cent increase in mileage rate for its southend 34 drivers, and a 25-cent- per-hour increase to its mechanics. Respondent's justifica- tion for this distribution on increases was based upon its stated position that the increased rates were necessary to obtain skilled and experienced over-the-road drivers. The proposed increases affected about 60 employees out of a total unit complement of about 120 employees. The Union's response to the proposal was to take the money offered including the cost to Respondent of bonus- es being paid, and redistribute it to maintain the health and welfare and pension funds over the next 3 years benefiting all the unit employees rather than a portion, and even giv- ing them a cash payment in addition. This proposal of the Union was rejected by Respondent by letter dated August 11, 1977, again stating that the Respondent's proposed rates were necessary to obtain "capable, efficient over-the- road drivers." The fact that Respondent proposed an increase at all was indicative that its financial position was improving. Indeed, Pollard in an assertion at the February 8, 1977, bargaining meeting boasted that Respondent's position was improving. Respondent nevertheless continued to ad- here to its earlier proposals. Aside from its bargaining position and proposals the General Counsel and the Union point to other factors which are contended to be demonstrative of Respondent's surface bargaining. As the Board said in Orkin Exterminat- ing Companyr of Florida, Inc., 152 NLRB 83, 84 (1965): It is well established that the Board must look be- yond what occurs at the bargaining table to determine whether a party to the negotiations is bargaining in good faith or is just going through the motions that amount to mere surface bargaining. It is a rare and 14 Northend drivers referred to those drivers hauling routes to the north of North Carolina while Southend drivers refer to the remaining over-the-road drivers hauling Southern routes 955 DECISIONS OF NATIONAL LABOR RELATIONS BOARD simple case where one party bluntly announces that it will not bargain with ith olthle party. In the more diffi- cult case . . . the Board must take an intelligent look at the totality of Respondent's conduct. [Footnote omitted.] One such factor relied upon by the General Counsel in connection with Respondent's conduct away from the bar- gaining table is Respondent's layoff of employees in Au- gust and September on the alleged basis of the existence of a "labor dispute." While no 8(a)(3) violation was alleged with respect to the layoffs the General Counsel contends it was nonetheless a bargaining tactic in view of the unde- nied testimony of employee Squire Venerable who testified he overheard Dispatcher Bill O'Daniel tell another employ- ee driver inquiring as to why freight had fallen off that "we had advised customers that we don't like to pick up because we're anticipating labor trouble." 35 It is also urged by the General Counsel and the Union that Respondent's unilateral changes with respect to the bonuses paid nonstrikers and the overtime or premium pay reflect Respondent's clear intent to avoid agreement. Even assuming Respondent had financial difficulty its unilateral action cannot be excused the General Counsel argues cit- ing Phoenix Air Conditioning, Inc., 231 NLRB 341 (1977), and Air Port Limousine Service, Inc., et al., 231 NLRB 932 (1977). Finally, it is urged by the General Counsel and the Union that the conduct of Respondent away from the bar- gaining table demonstrative of its desire to avoid agree- ment also includes the efforts of Dispatcher Bill O'Daniel to establish and deal with a "rump" employee group as previously outlined herein. This, as General Counsel points out, was at a time when Respondent was engaged in bar- gaining with the Union, and constituted an act in deroga- tion of Respondent's bargaining obligation. Conclusion I am persuaded, based on the record as a whole, that Respondent did in fact engage in surface bargaining with no real intention of entering into a final and binding agree- ment. I find Respondent's conduct away from the bargain- ing table particularly convincing in this regard. Respon- dent's unilateral action with respect to the bonuses granted the nonstrikers demonstrates a strategy which could only have as its purpose the undermining of the Union and the destruction of its bargaining functions. It indicates a rejec- tion of the collective-bargaining principle. The bonus can in no way be regarded as an unintentional or technical violation detracting from Respondent's bargaining obliga- tion. On the contrary, given Respondent's asserted bad fi- nancial position the grant of the bonus constituted an act completely inconsistent with its bargaining table stance and must therefore have been a coldly calculated step to undercut union support and preclude agreement with the Union. This conclusion receives reinforcement from Re- spondent's obvious attempt to conceal its actions on the 35 Respondent's witness Brown denied that any customers were turned away during the contract negotiation period. bonuses from the Union. Nor can the Respondent's outright encouragement of employees to form their own union at the very time Re- spondent was in negotiations with the Union be forgotten. Such action clearly detracts from any real intention on the part of Respondent to bargain in good faith with the Union. Moreover, under existing Board precedent such ac- tion on the part of Respondent in itself violates Section 8(a)(5), for it is completely inconsistent with its bargaining obligation with the Union. See e.g., The Royal Himmel Dis- tilling Company, 203 NLRB 370 (1973), and cases cited therein. Accordingly, I find that Respondent through its encouragement of employees to form their own union and to deal with Respondent directly demonstrated, not only its lack of good faith in bargaining but also it willingness to breach its obligation to deal only with the Union Respon- dent thereby independently violated Section 8(a)(5) of the Act, and I so find. An examination of the minutes of the meetings between the parties and the respective proposals of each side is like- wise persuasive that Respondent's positions at the bargain- ing table were not designed to insure agreement. Whatever may be said about Respondent's financial dilemma Re- spondent must have intended not to reach agreement be- cause it included in its proposals provisions which it must have known would guarantee union rejection. Even assum- ing the economic necessity for many of its proposed "take- aways" by coupling the "take-aways" more directly related to economics to other provisions only indirectly related to economics, if at all, Respondent made what otherwise be unpalatable to the Union downright poisonous. The broad- er management rights clause, the broader no-strike clause, the insistence on union liability for unauthorized acts of stewards and the elimination of arbitration are particularly significant in this regard. There can be little wonder why the Union seeing these proposals would be completely dis- trustful of Respondent's motivations in making these pro- posals. Respondent was in effect using its asserted econom- ic condition not as a sincere plea for assistance and relief in time of need but rather as a sword with which it could disembowel the Union. That the Union had good reason to distrust Respondent was proven by Respondent's clear misrepresentations, if not deliberate falsehoods, concerning its payment of bo- nuses to the nonstrikers and its implementation of its pro- posals on the overtime premiums. These misrepresenta- tions can only be viewed as part of the overall pattern of conduct designed to frustrate agreement. Not only did they serve to show the Union that Respondent's statements in bargaining were not worthy of belief the actual payment of $50 bonus to nonstrikers raised substantial doubt as to the honesty of Respondent's assertions of its financial difficul- ties. Since the misrepresentations on the bonus were so em- pathic and repeated they cannot be regarded as inadver- tent, and on the contrary, they must be considered as establishing the absence of any sincere desire by Respon- dent to reach an accord. It is true that the minutes of the bargaining meetings reveal some intransigence on the part of the Union. It was unwilling to accept less benefits than the employees had previously enjoyed. But I find that Respondent prompted, 956 S & W MOTOR LINES, INC. capitalized on, and even calculated upon, and insured the Union's position in this regard. When Respondent prof- fered some money on the bargaining table in May 1977. the Union, indicating an effort to reach agreement and to meet Respondent's economic problem, devised a way to maintain benefits for all bargaining unit employees using the proffered money and the bonuses paid nonstrikers, but Respondent rejected the plan and revealed its own intran- sigence. Even Respondent's offer of increases to certain bargaining unit employees to the exclusion of others may be viewed as a continuation of its effort to splinter union support. In light of the record as a whole I accept this view. I find it unnecessary to pass upon the General Counsel's contention regarding Respondent's motivations in the Au- gust and September layoffs. Nor do I find it necessary to determine the genuineness of Respondent's economic predic- ament. I am persuaded overall that whatever economic prob- lems Respondent had it also had a predetermined intention to avoid agreement with the Union. Accordingly, I find that Respondent failed to bargain in good faith with the Union and thereby violated Section 8(a)(5) and (1) of the Act. F. The Nature of the Strike It is clear from undisputed record evidence that the Union as early as September 3, viewed Respondent's pro- posals and tactics in negotiations to be an unfair labor practice. An assertion to this effect was made in a notice dated September 3, as to the Union's members who were employees of Respondent. (G.C. Exh. 22). There is no evi- dence that the Union ever retreated from that position. The Union in another notice to Respondent's employees dated September 26, called a meeting of such employees for Oc- tober 2 "for the purpose of bringing you up to date as to any developments which may have occurred as of October 2, 1976, and to keep you informed of the status of negotia- tions." A strike vote was taken at the October 2 meeting after Blevins reported on negotiations and expressed his belief that Respondent was not bargaining in good faith. The strike followed on October 16. Picket signs utilized during the course of the strike con- tained the legend "S & W Motor Lines Unfair. On Strike." In addition, during the course of the strike the Union through its pickets distributed a booklet describing its dispute with Respondent in negotiations and stating that the "dispute" was "brought about by the Employer's actions, attitude and conduct during negotiations wherein the Employer is, no doubt, attempting to destroy the bargaining unit." Prior to the strike but after the strike vote had been tak- en Respondent engaged in the 8(a)(2) conduct previously described herein. The Union filed its charge on such con- duct on October 22. Since I have found that Respondent did in fact commit unfair labor practices in its failure to bargain in good faith and since the evidence is clear that their was a causative factor in the strike I find that the strike which began on October 16, was, and is, an unfair labor practice strike and the employees involved therein are unfair labor practice strikers for whom an appropriate remedy will be recom- mended. Further, I find, Respondent's unfair labor prac- tices found above subsequent to the beginning of the strike tended to prolong it. IV THE EFFFCT OF TllE UNFAIR LABOR PRACTICES UPON (OMMER( F The activities of Respondent set forth above, occurring in connection with its operations, have a close, intimate and substantial relationship to trade, traffic, and com- merce among the several states and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the forgoing findings of fact, conclu- sions, and the entire record, I make the following: CONCLU SIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The ad hoc employee group of October 8, 1976, was at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 4. By offering rewards and otherwise soliciting or en- couraging nonstrikers to take physical retaliation against strikers; by granting bonuses to induce strikers to return to work: and by soliciting grievances from employees and in- dicating its consideration thereof and possible action thereon in order to discourage their support of the Union, Respondent has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 5. By encouraging the formation of, and by meeting with and rendering aid and assistance to the ad hoc em- ployee group of October 8, 1976, Respondent has violated Section 8(a)(2) and (I) of the Act. 6. The following unit constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All drivers, warehousemen, mechanics and regular part-time employees employed at the Respondent's terminal in Greensboro, North Carolina, and the Re- spondent's subterminals in Hickory, North Carolina, Nitro, West Virginia, and Parkersburg, West Virginia, excluding all office clerical employees, guards and supervisors as defined in the Act. 7. The Union is, and has been at all times material, the exclusive representative of all employees in the unit de- scribed immediately above for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 8. By refusing to provide the Union with relevant and requested information; by encouraging employees to deal with it directly; by unilaterally changing terms and condi- tions of employment of unit employees with respect to bo- nuses and overtime rates; and by refusing to bargain in good faith with the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. 9. The strike which began by the Union on October 16. 1976, among the employees in the unit set forth above was, 957 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is, an unfair labor practice strike, and the employees who participated in said strike are unfair labor practice strikers. 10. Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging E. W. Pack on October 5, 1976. 11. Except to the extent set forth in conclusions of law 4, 5, and 8 above, the General Counsel has failed to prove by a preponderance of evidence that Respondent engaged in any other unfair labor practice alleged in the complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (2), and (5) of the Act, it will be recommended that Respon- dent cease and desist therefrom and take certain affirma- tive action designed and found necessary to effectuate the policies of the Act. Since I have found that Respondent rendered unlawful aid, assistance, and support to the October 8 ad hoc em- ployee group, a labor organization, I shall recommend that it cease and desist such action. Since there was no allega- tion of domination of the employee group and since there was no evidence that the group continued its existence af- ter October 8 1 shall not recommend a disestablishment or cease recognition order. Having found that Respondent violated Section 8(a)(5) by refusing the Union's request for the identity and dates of layoff of nonunit employees following September 2, 1 shall recommend an order that Respondent furnish the Union with the requested information. Having found that Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) I shall recommend an order requiring it to cease and desist therefrom and affir- matively requiring Respondent to bargain with the Union. I have found that Respondent further violated Section 8(a)(5) of the Act through its unilateral action with respect to overtime premium rates and the institution of a bonus system for nonstrikers. I will recommend an order requir- ing that it cease and desist from such action. With respect to the change on overtime I shall recommend that Respon- dent be required to reinstate the previously existing over- time rates and make its employees whole for any losses they may have suffered as a result of Respondent's unila- teral change with interest computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Union urges with respect to the unilateral bonus system for nonstrikers that Respondent must be ordered to make equivalent payments to strikers. In support of this contention the Union cites Aero-Motive Mfg., Co., supra at 793, where the Board held that "The only practical method, therefore, of restoring the statutorily required equality of treatment as between employees who engaged in concerted activity and those who refrained therefrom is to require the payment of an equivalent amount to the employees who did engage in the concerted activity and who were denied the payment." I deem the remedy in Aero-Motive not wholly applicable here since Respondent's bonus system which was paid to only one group of unit employees was and is a continuing matter. In Aero-Motive the bonus was paid to all nonstriking unit employees on a one time basis. Also, unlike the situation in Aero-Motive where the bonus was paid after the strike concluded, the strike in the instant case is continuing. Rather, I shall rec- ommend an order requiring Respondent to cease paying the bonus, and upon conclusion of the strike, and if re- quested by the Union, pay the bonus to the reinstated strikers at the rate previously paid the nonstrikers until the amount of the bonus paid to the reinstated strikers equals the average amount paid the nonstrikers during the strike or until Respondent negotiates the cessation of such bonus payments to agreement with the Union. Such a remedy removes the coercive effect of the bonus during the contin- uing strike and restoration of the "statutorily required equality of treatment" as between the employees who en- gaged in the strike and those who did not. Those strikers who may have succumbed to the unlawful inducement rep- resented by the bonus during the strike and returned to work prior to conclusion of the strike would have any amounts due them reduced by the bonus amounts they actually earned during the strike. The Union, but not the General Counsel, urges for the first time in its brief that the remedy herein should include a requirement that Respondent "shoulder the costs" of the Union in negotiating. Board precedent for such a remedy was cited by the Union. I do not concur that such an ex- traordinary remedy is appropriate here. While the bargain- ing has been rather protracted there is no contention that Respondent delayed the bargaining. Furthermore, there is no showing of a history of unfair labor practices on the part of the Respondent. Although the violations found herein may be regarded as serious I am not persuaded that the remedies here recommended will not suffice. Cf. Betra Manufacturing Company, 233 NLRB 1126 (1977). However, in view of the seriousness of Respondents conduct which I conclude strikes at the root of employee rights I shall rec- ommend that Respondent be ordered to cease and desist from infringing in any manner on the rights guaranteed in Section 7 of the Act. Upon the above findings of fact, conclusions of law, the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 36 The Respondent, S & W Motor Lines, Inc., Greensboro, North Carolina, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Offering rewards and otherwise soliciting or encour- aging nonstrikers to take physical retaliation against strik- ers. 36 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided by Sec. 102,48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 958 S & W MOTOR LINES, INC. (b) Granting bonuses to induce strikers to return to work. (c) Soliciting grievances from its employees and indicat- ing it consideration thereof and possible action thereon in order to discourage their support of Chauffeurs, Teamsters, & Helpers Local Union No. 391, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. (d) Encouraging employees to form their own unions in- stead of supporting Chauffeurs, Teamsters & Helpers Lo- cal Union No. 391, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (e) Encouraging the formation of. meeting with, and rendering aid and assistance to, the group referred to herein as the ad hoc employee group, or any like group, concerning grievances, wages, hours of employment, or other terms and conditions of employment. (f) Refusing to bargain collectively with Chauffeurs, Teamsters, & Helpers Local Union No. 391, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by failing and refusing to supply the said labor organization with infor- mation it requested on September 15, 1976, regarding non- unit employees, by encouraging employees to deal directly with Respondent in derogation of said labor organization, by unilaterally changing terms and conditions of employ- ment of unit employees without bargaining with said labor organization and by refusing to bargain in good faith with said labor organization. (g) In any manner interfering with, restraining, or coerc- ing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of all its em- ployees in the above-described unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody any agreement reached into a signed contract, and furnish to said labor organization the information it requested on September 15, 1976, regarding nonunit employees. (b) Reinstate overtime rates prevailing immediately be- fore December 1, 1976, and pay its employees the sums of money representing the difference between what they would have earned after said date absent the unilateral change in overtime rates and what they actually earned with interest thereon computed as described under Section VI, entitled "The Remedy." (c) Reinstate to their former jobs, or to a substantially equivalent position, without prejudice to their seniority and other rights and privileges previously enjoyed, within 5 days following their unconditional application to return to work those strikers who participated in the strike beginning October 16, 1976. (d) Upon request of the above-named Union pay to any reinstated striker employed as an over-the-road truck driver the same per trip bonus paid to nonstriking drivers until the bonus paid the individual reinstated striker equals the average amount earned by the nonstriking drivers or until the cessation of such bonuses has been negotiated to agreement with the Union. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records, and reports to all records necessary to analyze the amounts due under the terms of this recom- mended Order. (f) Post at its locations in Greensboro and Hickory, North Carolina, and Nitro and Parkersburg, West Virginia, copies of the attached notice marked "Appendix." 37 Cop- ies of the notice, on forms provided by the Regional Direc- tor for Region II 1, after being duly signed by Respondent's authorized representatives, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that as to allegations of the com- plaint not specifically found to have been violations of the Act herein be dismissed. * In the event that this Order is enforced b) a Judgment of the United States Court of Appeals. the sords in the notice reading "Posted hb Order of the Nation.l I abor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 959