Stuart Radiator Core Manufacturing Co., Inc.

STUART RADIATOR Stuart Radiator Core Manufacturing Co., Inc. and Operating Engineers Local Union No. 3, Interna- tional Union of Operating Engineers , AFL-CIO. Case 20-CA-4643 October 9, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 29, 1968, Trial Examiner William E. -Spencer issued his Decision in the above-entitled rproceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Ex- aminer also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the General Counsel, Charging Party and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and ; recommendations of the, Trial Examiner, with the following additions and modifications- 1. We agree with the Trial Examiner that Respon- dent engaged in surface bargaining to avoid reaching a 1 "The Company retains and shall continue to have the complete and exclusive right and power to manage its operations and direct its working force , except as expressly limited by specific obligations of the Company set forth in this Agreement . Among such retained rights and power are included the following. to hire, to promote , demote, transfer, layoff and recall ; to assign and reassign to duties , hours of work and shifts, to maintain good order and efficiency ; to discharge , suspend, and discipline employees ; to establish rules and regulations not in conflict with this Agreement governing the conduct of employees on Company time or Company property , to determine the type and quantities of product to be manufactured ; to determine methods, processes, and means of manufacture , production and distribution and of administra- tion and sales , to determine the size and composition of the working force, to locate work within the plant , to discontinue all or any part of nS operations, to transfer to other locations and there to perform all or any part of its operations , to subcontract all or any part of its operations, to determine whether to purchase or manufacture compo- nents and finished products , to lease, sell or otherwise dispose of or permit the use by others of all or any part of its plant and equipment." 2 See, for example, Procter & Gamble Mfg. Co, 160 NLRB 334, 336. CORE MFG CO 125 meaningful agreement with the Union. This effort to undermine the Union was clearly manifested by the nature of the contract proposals offered by Respon- dent at the bargaining table. Thus, Respondent insisted on a broad and extremely detailed manage- ment rights clause' which reserved to Respondent absolute unilateral control over virtually every signifi- cant term and condition of employment. Another of Respondent's proposals limited grievances and arbitra- tion to the express terms of the contract. Thus, almost none of the Union's objections to Respon- dent's exercise of its prerogatives would be amenable to the grievance-arbitration procedure.' In addition, Respondent insisted upon an unusually broad waiver clause requiring the Union's abdication of virtually all employee statutory bargaining rights during the term of the contract.3 While it is well established that an employer's insistence upon a management rights clause does not itself violate Section 8(a)(5),4 the nature of an employer's proposals on management rights and other subjects are material factors in assessing its motivation in approaching negotiations. Thus, rigid adherence to proposals which are predictably unacceptable to the Union may indicate a predetermination not to reach agreement, or a desire to produce a stalemate, in order to frustrate bargaining and undermine the statutory representative.' An evaluation of all Respondent's proposals herein indicates that Respondent was determined to force the Union to abandon its right to be consulted regarding practically all disputes that might arise during the term of the contract relating to terms and conditions of employment; i.e., to waive its statutory right to bargain collectively. Such proposals indicate more than hard bargaining. Since the Respondent could not have offered them with any reasonable expectation that they would be acceptable to the Union, we can only conclude that Respondent did not approach negotiations in good faith and with the intent of reaching an agreement. We thus find that 3 "Section 18 . 1-Bargaining during Term . Notwithstanding the Company's recognition of the Union or any other provision of this Agreement , each party hereto expressly waives any obligation or duty presently or hereafter imposed by federal or state law on the other party to bargain collectively or to negotiate with such party over or pertaining to management decisions (including but not limited to such decisions as plant or departmental removal , subcontracting , or discon- tinuance, shutdown , sale or other disposition of a plant or departmental operation or of a product, service, or function, or as to the effects of any such decision) or as to wages, hours , pensions , insurance , or other fringe benefits , or any terms or conditions of employment , or any other matters or subjects whatsoever during the term of this Agreement, whether or not any such matter or subject has been presented, discussed , or resolved in negotiations leading to this Agreement, or made the subject of a provision of this Agreement, and each party acknowledges and agrees that the other party shall have no such obligation or duty during the term of this Agreement." 4 N.L.R B v. American National Insurance Co., 343 U.S. 395. 5 Procter & Gamble Mfg. Co. supra. - 173 NLRB No. 27 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's approach to negotiations was superficial and completely inconsistent with the principle of good-faith bargaining.6 2. The complaint alleges that on August 22, 1967, certain of Respondent's employees ceased work and went on strike, that the strike continued thereafter, and that it was caused and prolonged by Respon- dent's unfair labor practices. The Trial Examiner made no findings as to the character of the strike here involved. We conclude that the record amply supports a finding that the strike was in fact caused and prolonged by Respondent's unfair labor practices at the bargaining table. Thus, on August 21, 1967, at a union meeting the employees rejected Respondent's proposals and voted to strike. Since Respondent's insistence on these proposals was inherently part of Respondent's unlawful refusal to bargain, the strike was caused, at least in part, by the Respondent's breach of its bargaining obligation and was, from its inception, an unfair labor practice strike.' THE REMEDY It having been found that at the time of the hearing Respondent's employees were engaged in a strike caused and prolonged by Respondent's unfair labor practices, the striking employees are therefore en- titled to reinstatement upon application, whether or not their positions have been filled by the hire of replacements. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Stuart Radiator Core Manufacturing Co., Inc., Merced, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the following paragraph as paragraph 2(b) and reletter the subsequent paragraphs: (b) Upon application, offer immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, to all those employees who went on strike on August 22, 1967, or thereafter. 2. Add the following paragraphs to the appendix attached to the Trial Examiner's Decision: WE WILL, upon application, offer all employees who went on strike on August 22, 1967, or thereafter, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make the above-mentioned employees whole for any loss of pay they may suffer as a result of our refusal to reinstate them or employ them, upon application. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations not found herein. 6 White's Uvalde Mines, 117 NLRB 1128, East Texas Steel Castings Company, 154 NLRB 1080, 1081 -2, Architectural Fiberglass-Divi- sion of Architectural Pottery, 165 NLRB No 21 7 Berger Polishing, Inc, 147 NLRB 21, 38. Although the strike was also based on economic factors, it is well settled that if the strike was motivated because of unfair labor practices in addition to economic factors , it is an unfair labor practice strike Wittock Supply Company, 171 NLRB No. 33. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM E. SPENCER, Trial Examiner This proceeding under Section 10(b) of the National Labor Relations Act, hereinafter the Act, was heard in Modesto, California, on March 19, 20, 21, 1968, pursuant to due notice. The complaint, issued November 27, 1967, on a charge filed August 10, 1967 by the Union herein, alleged in substance, and Respondent in its duly filed answer denied, that Respon- dent commencing about April 17, 1967, has refused to bargain with the Union, the duly constituted representative of its employees in an appropriate unit, in violation of Section 8(a)(1) and (5) of the Act, and has made certain statements violative of Section 8(a)(1) of the Act All parties participated in the hearing, and each of the parties has filed a brief. Upon the entire record in the case, my observation of witnesses, and consideration of briefs, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation with an office and manufacturing plant located in Merced, California, at all material times has been engaged in the manufacture and sale at wholesale of radiator cores. During the past calendar year, in the course and conduct of its business, it sold and shipped goods and materials valued in excess of $50,000 directly to customers located outside California. 11. THE LABOR ORGANIZATION INVOLVED Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO, the Union herein, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On July 18, 1966, the Respondent made a collective bargaining agreement with an organization called "The Amen- STUART RADIATOR CORE MFG CO 127 can Union Federation," to be effective from July 18, 1966 to September 1, 1968 The Union herein on some date not here specified, but presumably subsequent to the execution of the July 18, 1966 contract, filed 8(a)(1), (2), (3), and (5) charges of unfair labor practices against Respondent.' On April 15, 1967, on the basis of a card check, the Respondent recognized the Union as sole bargaining represen- tative of its production and maintenance employees. By letter dated April 20, 1967, the Union requested the Board's regional office to permit the withdrawal of its charges, referred to above, on the ground that the Union and the Respondent had entered into an agreement settling the said charges. The request was granted. B. The Union's Majority in an Appropriate Unit The parties agreed and it is found that at all times material on and after April 15, 1967, the Union was the exclusive representative of Respondent's employees in the following appropriate unit All production and maintenance employees employed by Respondent at its Merced, California, plant, excluding office clerical employees, salesmen, guards and supervisors as defined in the Act. C. The Issue Did the Respondent fail and refuse to bargain with the Union in good faith on and after April 15, 1967. D. Negotiations The Respondent met with the Union in bargaining sessions on May 23, June 9, July 5, August 3, 11, 16, and 25, and September 1, 1967. Throughout these negotiations Don Kinchloe was the negotiator and spokesman for the Union, Chester Ferguson, of a Los Angeles firm of labor relations consultants, for the Respondent. No agreement on a contract having been reached, the Union called the employees out on a strike which began on August 22, 1967, and was continuing at the time of the hearing The meetings of August 25 and September 1 were attended and participated in by a represen tative of the Federal Mediation and Conciliation Service (FMCS), but did not result in an agreement. The Respondent met with the Union at reasonable times and made proposals and counter-proposals. To determine the issue of good-faith bargaining it is necessary to look at the Respondent's original contract proposal and to examine the' nature of its later concessions. The Management Rights clause of Respondent's contract proposal, particularly in the portions which I have italicized, demands our careful scrutiny, and follows in its entirety The Company retains and shall continue to have the complete and exclusive right and power to manage its operations and direct its working force, except as expressly limited by specific obligations of the Company set forth in this Agreement. Among such retained rights and power are included the following. to hire; to promote, demote, transfer, layoff and recall; to assign and reassign to duties, hours of work and shifts; to maintain good order and efficiency; to discharge, suspend, and discipline employees; to establish rules and regulations not in conflict with this Agreement governing the conduct of employees on Com- pany time or Company property; to determine the type and quantities of product to be manufactured, to determine methods, processes, and means of manufacture, production and distribution and of administration and sales, to deter- mine the size and composition of the working force, to locate work within the plant, to discontinue all or any part of its operations, to transfer to other locations and there to perform all or any part of its operations; to subcontract all or any part of its operations, to determine whether to purchase or manufacture components and finished pro- ducts, to lease, sell or otherwise dispose of or permit the use by others of all or any part of its plant and equipment The italicized portions were adhered to without modifications, over the Union's objections, throughout the period of negotia- tions. Ferguson testified that he explained in the course of negotiations in support of the Management Rights clause that "when work is transferred between locations, a work order can be processed in various locations, and . . . we wanted to continue that right because we had that right in the past, and we did not want to restrict our flexibility of operations in the future, and this is why we wanted this clause. Q. In other words, to shut down one plant, the one at 1130 Stuart Drive, Merced, if it was deemed advisable by the company? A. No. I advised the union that there was no intent to close down the operations or move it, and I mentioned this at a number of meetings with the union ... Q. And, having no intention of that, you still wanted the right to do it, by contract9 A. That is true. We wanted that right by contract." The Management Rights clause was identical with a clause in Respondent's contract with the Federation. Not included in the Federation contract, however, were the following provi- sions offered the Union and not modified or receded from during negotiations, and which have some bearing on the Management Rights proposal as explicated by Ferguson Section 18.1-Bargaining during Term. Notwithstanding the Company's recognition of the Union or any other provision of this Agreement, each party hereto expressly waives any obligation or duty presently or hereafter imposed by federal or state law on the other party to bargain collectively or to negotiate with such party over or pertaining to management decisions (including but not limited to such decisions as plant or departmental removal, subcontracting, or discontinuance, shutdown, sale or other disposition of a plant or departmental operation or of a product, service, or function, or as to the effects of any such decision) or as to wages, hours, pensions, insurance or other fringe benefits, or any terms or conditions of employment, or any other matters or subjects whatsoever during the term of this Agreement, whether or not any such matter or subject has been presented, discussed, or resolved in negotiations leading to this Agreement, or made the subject of a provision of this Agreement, and each party acknowledges and agrees that the other party shall have no such obligation or duty during the term of this Agreement. Section 18.2• This Agreement constitutes the sole and entire existing agreement between the parties and com- pletely and correctly expresses all of the rights and i This is inferred from the Union 's letter of April 20, 1967, to the Respondent 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligations of the parties. All prior agreements, conditions, practices, customs, usages, and obligations are completely superseded and revoked insofar as any such prior agree- ment, condition, practice, custom, usage, or obligation might have given rise to any enforceable right. A further variance in the agreement between Respondent and the Federation, came in Respondent's proposal for an arbitration clause. The Federation agreement provided that expenses incurred by the arbitrator "shall be borne equally by the Company and the Association [Federation]," whereas in its original proposal to the Union it was provided that the entire expense of arbitration be borne by the loser. The Respondent during negotiations receded from this requirement and the arbitration provision of the Federation agreement was reinstated Respondent would have this counted as a concession. An alleged concession was Respondent's agreement to add a no-lockout clause to its no-strike provision which appeared in its agreement with the Federation in this form. During the term of this Agreement, all disputes, griev- ances, complaints and adjustments pursuant to this Agree- ment shall be settled in accordance with the grievance and arbitration procedure outlined herein, and the Association agrees that there shall be no strike of any type, or interference with production, coercive or otherwise, in violation of this Agreement. Should there be any strike of any kind, walk-out, slow-down, picketing, stay-in or work stoppage of any type, or interference with produc- tion, coercive or otherwise, in violation of this agreement, participated in by one or more Association members, the Association shall use every means at its disposal to abate such action. The Company shall have the right to discipline or discharge any and all participants of a strike of any kind, walk-out, slow-down, picketing, stay-in or work stop- page, or any type of interference with production, coercive or otherwise, in violation of the Agreement. The Associa- tion shall not question the unqualified right of the Company to discipline or discharge employees engaging in, participating in, or encouraging such action. It is under- stood that such action on the part of the Company shall be final and binding upon the Association, and its members, and shall in no case be construed as a violation of this Agreement. The foregoing is the identical proposal of the Respondent to the Union at the opening of negotiations During the course of negotiations it agreed to the following modification- However an issue of fact as to whether or not any particular employee has engaged, participated in, or encour- aged such violation may be subject to the Grievance Procedure and/or Arbitration. The Union, by its agents or officers, will not be liable for damages in breach of contract in the event of a strike of any kind, walk-out, slow-down, picketing, stay-in or work stoppage of any type, or interference with production, coercive or otherwise, in violation of this Agreement, which the Union has not authorized and to which the Union has used all reasonable efforts to prevent and/or terminate. The Company agrees that there shall be no lock-out in violation of this Agreement on its part. The Respondent claims as a concession a revision of its initial proposal for a posting of Union notices on a plant bulletin board. The original proposal, mdentical with that in the Federation agreement, follows. The Company agrees to provide the Union with suffi- dent space on the bulletin boards for the posting of Union Notices, which shall be limited to announcing Union election, Notices of meetings and recreational activities. All notices must be approved by the Employer prior to posting. During negotiations, Respondent agreed to delete "which shall be limited to announcing Union elections, Notices of meetings and recreational activities," but insisted on the retention of the concluding sentence. Also during negotiations, Respondent modified its proposal for a 90-day probationary period by scaling it down to 75 days. The Union had counterproposed 30 days, agreed to pay for holidays falling on a Saturday, though the employee did not work on that day, or dunng a vacation period, and not to penalize an employee injured on the job the day before or after a holiday; agreed to notify the Union of layoffs but otherwise adhered to its initial proposal on seniority and grievances (the Union's later proposals on seniority and grievance procedure were taken from this Respondent's con- tract with another labor organization at its San Francisco plant, but Respondent refused concessions pursuant to these revised proposals), refused to consider the Union's proposal on pensions, and rejected out of hand the Union's proposals on health and welfare with the statement that Respondent's existing plan was adequate, refused to modify its proposal that an authorized union representative would be allowed to talk with a shop steward or an employee with a grievance, only after securing prior approval from the plant manager, and at a place provided by the Company. On the issue of wages, the Respondent announced at the opening of negotiations that it would honor the commitment made the Federation that it would grant a five cent increase, and, at the Union's request, agreed to withhold the granting of this increase during negotiations. It later offered an additional 1-cent and finally a 2-cent increase, as its counteroffer to the Union's proposed 25 cent increase. The Union's proposed wage scale was substantially less than that paid by this Company in its San Francisco operations. Also, in order to promote agreement on wages the Union agreed to delete from its proposals certain cost items, such as pensions, jury duty, and sick leave which the Company had already rejected, but this brought no further modification in Respondent's wage offer. At the conclusions of negotiations on August 21, Kinchloe advised Ferguson that future meetings would be arranged through FMCS. On the evening of August 21, the Union reported to its members and the latter voted unanimously to strike. The strike began on August 22. A meeting, with a representative of FMCS in attendance, occurred on August 25, and further than the fact that the said representative conferred separately with each of the parties there appears to have been no actual negotiations between the parties at this meeting. Kinchloe testified that after the FMCS representative had conferred with Ferguson he reported to the Union that the meeting might as well be adjourned. At the final meeting of the parties on September 1, also arranged through FMCS, the Union submitted a contract proposal in which it revived all the demands the Union had abandoned in prior negotiations and submitted as its new proposal on wages the wage scale Respondent was then paying the employees at its San Francisco location. On October 27, the Union by letter to the Respondent suggested a meeting in San Francisco on November 3. Ferguson replied by telegram that it was impossible to meet on that date in San Francisco and suggested Los Angeles for the STUART RADIATOR CORE MFG CO. 129 meeting. In early November Ferguson received a telephone call from a Union representative suggesting a compromise location for a meeting. Ferguson testified that he expressed a willing- ness to meet in Fresno, California, but nothing came of it. It is not at all clear to what additional extent, if any, the Union, or the Union through FMCS, attempted to arrange for further negotiations. None have been held E. Alleged Anti-bargaining Statements General Counsel's witness, Kenneth Yaple, testified that in October, 1967, during the course of the strike, he asked Foreman Darryl Tatum if he thought "the union was going to come in." Tatum replied, "No." Shortly thereafter, after there had been some strike violence, Yaple again solicited Tatum's opinion, and Tatum said the "union would never come in, because they ... used force." Tatum did not testify. Yaple further testified that on an occasion in October, Supervisor David Feldman called him to Feldman's office, asked him if he had not been talking to Kenneth Green, a union representative, outside of the plant and why he had crossed the picket line. Yaple replied that he crossed the picket line because he needed a job, and Feldman said he was hoping Yaple was with him, would not go out and picket. With respect to Green, in response to Feldman's query if Green had been "bugging" him, Yaple replied that Green was just wondering why Yaple had crossed the picket line. Continuing, Yaple testified, "Then we got to talking about the union, and I asked him if he thought the union would ever come in, and he said that as far as he's concerned, they'd use force [presumably the Union would], and he wouldn't sign a contract no matter what. He'd rather see the place burn before he would sign a contract with the union." Feldman admitted that he had Yaple brought to his office in October, and that he questioned him concerning an incident of molestation involving pickets he had observed the previous day, by asking him if he had been threatened or chased. According to Feldman, Yaple denied having been molested, referred to the pickets as his "buddies," and said that Green had offered him $100 if he would try to get all the employees out of the plant, an offer which he refused. He denied that anything was said during the conversation pertaining to a union contract, or burning the plant down. Assistant Manager Robert R. Verhasselt, who testified that he was present during the conversation between Yaple and Feldman, corroborated Feldman to the extent of testifying that he did not recall anything being mentioned during the conversation about a union contract or burning the plant down. He did not recall how long the conversation lasted, ten minutes, or thirty minutes, or where Yaple was working at the time he summoned him to Feldman's office. Crediting Yaple on his conversation with Tatum I do not see that it amounted to much. He asked for Tatuih's opinion and Tatum gave it. I also doubt that Feldman volunteered that the Company would never sign a union contract, or that he would burn the plant down first. Regardless of the Company's willingness to sign a union contract covering its Merced operations, or lack of it, I doubt that Feldman would have singled out Yaple for stating the Company's position in such vehement terms. In any event, in view of the Board' s recent decision dismissing the complaint in W. L. Knight, d/b/a Webster Outdoor Advertising Company, 170 NLRB No. 144, I would not be able to attribute controlling significance in determing the issue of good faith bargaining, or in fact any significance to Yaple's testimony, standing alone, for in that recent case the employer's president told the Union delegation that "he wasn't going to sign no contract, [that] this wasn't the North . . and that he would replace all of the employees," and on a later date, the employer's attorney stated that continued bargaining would be pointless, that the employer was satisfied with the replacements then in its employ and that "it would be all over in June" when another election would be held. F. Concluding Findings In support of its position that absent "from the instant case are any of the criteria bottoming Board 8(a)(5) decisions," the Respondent in its brief cites these facts no specious unit questions, no declination to meet at reasonable times and places; no attempts to dissipate the Union's majority status; no undermining of the Union's authority to bargain, no direct appeal to employees, no solicitations of strikers to return to work; no unilateral actions by the Respondent in derogation of the Union's bargaining authority, no discharges, threats, intimidations, interrogations or promises constituting 8(a)(1) or (3) violations. Except that a refusal to bargain in good faith is an attempt to dissipate a union's majority status, and undermines the Union's authority to bargain, I agree to this statement of fact. I might add that at the opening of negotiations, the Company offered a union shop and a checkoff of dues, matters which not infrequently bring about a stalemate in negotiations for a contract. The significance of this offer, however, is qualified by the fact that Respondent's abrogated contract with the Federation included the same clauses covering this subject matter that were offered the Union. With due consideration of all the factors listed above, and others favoring Respondent's position, I am nevertheless convinced upon consideration of the entire evidence that here we have a classic example of surface bargaining, with no desire or intent on the part of the Company to reach a meaningful agreement with the Union. Having abrogated its agreement with the Federation in settlement of the Union's charge of 8(a) (1), (2), and (3) violations, it offered substantially this selfsame agreement, with certain modifications which made it even more restrictive of a labor organization's discharge of its bargaining obligations, and throughout negotiations rigidly adhered-while making certain concessions which were for the most part minor or altogether negligible-to its main and most restrictive provisions. In its Management Rights clause it in effect demanded that the Union yield its representative status on such bargainable matters as transfer or subcontracting of work affecting the bargaining unit, and rendered any oral assurances in the matter meaningless by the addition-that is, addition to its Federation contract-of clauses which would make all oral assurances or commitments unenforceable, and which would further strip the Union of a considerable degree of its representative capacity by denying it the right to bargain on any matter not covered by the Agreement, even though it was not considered at the time the Agreement was negotiated, or became a bargarnable matter during the term of the Agreement, as a result of decisional change by the Board or the courts, or a situation newly arisen which could not have been foreseen during the period of negotiations. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the guise of concessions, it made such meaningless gestures as an offer to exclude from the bargaining unit certain classifications of employees the Union never claimed to represent, and to insert, as a companion to its no-strike proposal (identical with its Federation contract) a no-lockout clause which in fact had no validity whatever since it merely provided that the Company would engage in "no lock-out in violation of this Agreement on its part" when there was in fact no agreement not to engage in a lock-out A proposal phrased in such terms smacks of bargaining sleight-of-hand and is not to be excused on the grounds of inexperience or poor draughtmanship since Respondent's negotiator was a seasoned labor relations expert, a member of a prominent Los Angeles firm. Further, because of Respondent's insistence on the inclusion of its section 18.1 and 18.2, no oral understanding of the parties could have superseded or been substituted for this meaningless "no-lockout" provision. Another so-called concession was the modification of its arbitration clause to provide that the expense of arbitration be shared by both parties, instead of borne solely by the loser as initially proposed. With this "concession" the arbitration clause in the Company's contract with the Federation was reinstated. In other words, the Respondent agreed to retreat to the position it held with a labor organization which vanished without a trace when the Respondent settled the unfair labor practices charges brought against it by the Union, a vanishing act which would have challenged the ingenuity of Houdini.2 A further so-called concession was the agreement to withhold, during the period of negotiations, a 5-cent increase promised the Federation, which was in fact no concession at all since the effectuation of this increase during negotiations, without the Union's consent, unless and until an impasse had been reached on the wage issue , would in itself have constituted a refusal to bargain. In fact, the only concessions of substance made by the Respondent during the entire period of ntsgotiatlons were its modification of its vacation with-pay proposal, and its concession on its nostrike proposal to make certain matters arbitrable which in its Federation contract were left solely to the discretion of the Company. I am aware of course that an employer is not required to make any concessions whatever to establish its good faith in bargaining, and the absence of concessions alone may not ground a finding of a refusal to bargain, but such concessions as an employer does make during negotiations may properly be weighed to determine whether they constitute affirmative evidence of good faith bargaining. As stated by the Court of Appeals of the Fifth Circuit. "Bad faith is prohibited though done with sophistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail." NL.R B. v. Herman Sausage Company, Inc., 275 F.2d. 2 No allegations of company-domination were lodged against the Federation, and accordingly no findings are made or remedy offered re the Federation . Further, inasmuch as there was a settlement agreement between the Respondent and the Union covering this matter, I held some initial doubt, and expressed it at the hearing , whether I could take the Federation 's status into consideration as background in deciding the issues herein Upon mature consideration I have come to the conclusion that it cannot be altogether ignored if we are to apply to the issue of good faith bargaining any commonsense realism. One has only to read Respondent's agreement with the Federation, with its Management Rights clause , its no -strike provision which would enable the Company 229 (C A. 5). 1 find this language ideally applicable to the facts here. Also it goes without saying that an employer does not have to make contract proposals which will meet favor with a union. Hard bargaining is always permissible. However, should an employer propose and insist on a contract clause that left substantially all bargainable matters to the discretion of the employer, we would say without hesitancy that this employer had no good faith intention of reaching an agreement. This would not be hard bargaining. It would be no bargaining. The Respondent here has not gone that far, but in my opinion it has taken too many steps in that direction to be absolved of bad faith bargaining All considered, it seems clear that the Respondent insisted on substantially the same control over bargainable matters as it had reserved to itself under its agreement with the Federation, and in some respects more. All considered, this was not good faith bargaining. "If the Board is not to be blinded by mere talk, it must make some cognizance of the reasonableness of the company's offers including those which it must have known had not the slightest chance of being accepted by a self-respecting union The employer by holding to his unreasonable position in this area leads me to believe that he had no intention of entering into good faith bargaining with the union." N.L.R.B. v. Reed & Pnnce Mfg Co., 205 F 2d 131, 139-140 (C A. 1), cert denied 346 U.S 887. The Union's action on September 1 in withdrawing all the concessions it had made during the course of bargaining, and in proposing a higher wage schedule than that previously de- manded, will no doubt be urged as rendering any remedy for Respondent's refusal to bargain illogical and inequitable. The reinstating of its original contract proposals by one or other of the parties after a period of negotiations during which concessions were made, can be, and under certain circum- stances is, strong evidence of bad faith. Here, however, we have a situation where the Union made numerous concessions by agreeing to contract proposals which greatly restricted its bargaining authority, concessions which can only be attributed to inexperience and inexpertness on the part of its negotiator or a strong desire to reach an agreement, even though on terms which would have received outright rejection by most respon- sible labor organizations, and by deleting most of its "cost" item proposals, such as pensions, and modifying substantially its demands on such bargainable matters of grievances and seniority, while the Respondent rigidly adhered to the most restrictive of its original proposals. Under these circumstances I do not believe that the Union (that is to say the employees it represents) should be prejudiced by its action on September 1, but that a bargaining order should issue in order that the Respondent shall not piofit from its unfair labor practices, and its employees be given the benefit of bona fide bargaining. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following unilaterally to determine whether any individual employee had violated it and to mete out any disciplinary action it unilaterally decided upon, the absence of any no-lockout provision , and similar one-sided commitments , to know that no self-respecting labor organization would be a party to such an agreement The fact that the Respondent attempted to impose this agreement , with additional restrictions, on the Union, speaks for itself and cannot be ignored in a full and objective appraisal of the actual bargaining situation. I must add , however, that had Respondent 's agreement with the Federation been excluded, my conclusions herein would be the same STUART RADIATOR CORE MFG CO 131 CONCLUSIONS OF LAW 1. Respondent is an Employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Merced, California, plant, excluding office clerical employees, salesmen, guards and supervisors as defined in the Act, constituted at all times material herein, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union was on April 15, 1967, and has been at all tines material herein, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing on and after May 23, 1967, to bargain collectively with the Union as the exclusive representative of employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the said refusal to bargain, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the Act, it is hereby recommended that Respondent, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive representative of all its employees in the previously described appropriate unit. (b) In any like or related manner interfering with re- straining or coercing its employees in the right to self- organization, to form labor organizations, to loin or assist the Union, or any other labor organization , to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act. (a) Upon request bargain collectively with the Union as the exclusive representative of its employees in the previously described appropriate unit, with respect to rates of pay, wages, hours of work, and other conditions of employment and, if an understanding is reached, incorporate it in a signed agreement. (b) Post at its plant in Merced, California, copies of the notice attached hereto and marked "Appendix."3 Copies of said notice to be furnished by the Regional Director for Region 20, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and maintained by them for a period of sixty (60) days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Region 20, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply here- with .4 3 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner " in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "A Decision and Order." 4 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act (as amended) we hereby notify our employees that WE WILL NOT refuse, upon request, to bargain collec- tively with Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of all our employees in the appropriate unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to bargain collectively through representation of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representative of all employees in the following unit with respect to rates of pay, wages, union security, hours of work, and other conditions of employment and if an understanding is reached embody such understanding in a signed agreement. The bargaining unit is: All our production and maintenance employees at our Merced, California plant, excluding office clerical em- ployees, salesmen, guards and supervisors as defined in the Act. STUART RADIATOR CORE MANUFACTURING CO., INC. (Employer) Dated By (Representative) (Title) 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This Notice must remain posted for 60 consecutive days compliance with its provisions, they may communicate di- from the date of posting, and must not be altered, defaced, or rectly with the Board's Regional Office, 13050 Federal covered by any other material. Building, 450 Golden Gate Avenue, Box 36047, San Francisco, If employees have any question concerning this Notice or California 94102, Telephone 556-0335.