Nassau Glass Corp.

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nassau Glass Corporation and Glass Warehouse Workers and Paint Handlers Union , Local 206, In- ternational Brotherhood of Painters and Allied Trades, AFL-CIO. Cases 29-CA-2348 and 29- CA-2484 October 3, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 19, 1972, Administrative Law Judge' George J. Bott issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Decision of the Adminis- trative Law Judge. 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 2 and the attached 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.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Nassau Glass Corporation, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the said recommended Order. the Union, in Case 29-CA-2348, the General Counsel of the National Labor Relations Board issued a complaint on April 30, 1971, alleging that Respondent had violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. On November 29, 1971, on the basis of additional charges filed by the Union against Respondent on August 9, 1971, in Case 29-CA-2484, the General Counsel issued a second complaint alleging that Respondent had violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union on various dates in July and August 1971.On March 22, 1972, General Counsel amended this complaint to alleged various dates in Feb- ruary and March 1972 as further dates of bad-faith bargain- ing by Respondent. Respondent filed answers denying the allegations of, violations of the Act, and, the cases having been consolidat- ed, the matter was heard before me in Brooklyn, New York, on March 22 and 23, 1972. Subsequent to the hearing, Gen- eral Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION Respondent is engaged in Hempstead, New York, in pro- viding glass installation and related services. During the year pnor to the issuance of the complaint, Respondent purchased and had delivered to its place of business, mate- rials valued in excess of $450,000, of which materials valued in excess of $50,000 were transported to it directly from States other than the State of New York. I find that Respon- dent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Respondent's request for oral argument is denied as , in our opinion, the record, exceptions, and briefs adequately present the issues and positions of the parties. 3 We agree that the Respondent's conduct at the March 9, 1972, meeting violated Sec. 8(aX5) and ( 1). We cannot, however, agree with the finding that the Respondent failed to bargain in good faith on February 10 and 23, since the record indicates that the parties reached substantive agreement on many contract terms at those meetings , and continued to bargain about the remain- ing terms. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Trial Examiner: Upon a charge of unfair labor practices filed against Nassau Glass Corporation, herein called Respondent or Company, on April 9, 1971, by A. Violations of Section 8(a)(1) and (3) of the Act On June 23, 1970, the Union lost a Board election held among Respondent's employees, but the Regional Director of the Board set it aside on March 10, 1971, because of company interference with the election and scheduled an- other vote for April 7, 197 1.1 The results of this election were five votes for the Union, one vote against, and five chal- 1 On September 22, 1970, the Regional Director issued a complaint against Respondent based on charges filed by the Union in Case 29-CA-2050, and he consolidated the case for trial with the hearing on the Union 's objections to the election. After the hearing, Respondent was found to have violated Sec. 8(a)(1) and (3) of the Act by threatening employees, coercively interro- gating them, promising benefits to them if they refused to support the Union, and by discrnninatonly terminating three of them on the day after the elec- tion No exceptions were filed to the Trial Examiner's Decision, and on March 1 , 1971, the Board issued an Order adopting it as its own. The Regional Director then set the first election aside on the basis of the findings of the Trial Examiner 199 NLRB No. 76 ' NASSAU GLASS CORPORATION 477 lenged ballots determinative of the outcome. Immediately prior and subsequent to the second election, Respondent engaged in certain acts of interference, restraint, and coer- cion and discrimination against employees as follows:2 Shortly before the election on April 7, 1971, Norman Gold, Respondent's president, illegally promised employee Heard a benefit in violation of Section 8(a)(1) of the Act by telling the employee that he would be taken care of if the Union lost the election. Heard acted as the Union's observer at the election. After the ballots were counted one of Gold's sons used a racial epithet in addressing Heard, and voices then were raised. Norman Gold overheard the exchange and impul- sively discharged Heard. Although Heard's employment never was really terminated, I find that Gold's reaction was a reprisal against Heard because of his union activities in violation of Section 8(a)(1) of the Act. On April 7, Respondent violated Section 8(a)(1) and (3) of the Act when Gold, after telling Heard he was fired, returned to him and assigned him to installing a screen, a task he had never performed before, saying to him, "You want the union, do the screen." On the same day Gold ordered an employee to load a large piece of glass on a truck, a task which could not be safely performed by one person. This assignment, like Heard's, was in retaliation because of the employee's union activities and sympathies .3 Up until the time of the Board election on April 7, the normal workday was 8 a.m. to 4 p.m., with a half hour for lunch, Monday through Friday, and 5 hours on Saturday from 8 a.m. to 1 p.m. The Saturday hours were overtime at time and one-half, and the men also received a half hour overtime Monday through Friday. After the election but before the close of the day Gold assembled all employees and announced the discontinuance of overtime as of the following day. The new work schedule would be 8 a.m. to 4:30, Monday through Friday, with an hour for lunch. Gold named Heard, "Steve," "Michael," Linder, and Kirk Leary as the employees who would have a full hour for lunch. He added that his sons would continue to work the same hours as before. Heard testified without contradiction that when Gold announced the change in hours and the abolition of overtime, he said, "You guys want a union, we do things by the book.... " On April 8, Linder and Austin arrived for work about 7:45 a.m., but Gold, contrary to past practice, required them to wait outside until 8 a.m. When employees Heard and Leary arrived they also waited outside the plant because of Gold's instruction, but they observed employee Juliano, an auto glazier, inside working. Respondent does not suggest any business justification for changing hours and cutting out overtime, and I find that it was a clear violation of Section 8(a)(3) and (1) of the Act.4 2 Findings based on the credited testimony of employees Heard and Lin- der. 7 This employee, called "Michael" by Heard, did not testify . It is clear that he is Michael Austin , a driver who voted in the election . Heard's testimony that Gold commented when he assigned Austin the work , "Okay, you want union pay, take this piece of glass and put it on the truck ," is undenied. 4 From April 8 until 29, when the previous working hours were restored on advice of counsel after unfair labor practice charges were filed , employees Heard, Linder, Leary, Dunne, and Austin worked according to the new Prior to the election, the Company furnished free uniforms and tools to employees. On April 8, Gold an- nounced that the practice of supplying free uniforms was discontinued. On the following day, he announced that the employees would have to purchase their own tools. There was not business justification for such conduct and Respon- dent violated Section 8(a)(1) and (3) of the Act by engaging in it. On April 8, Gold told the employees that the Company was going to keep a timecard on each employee recording what he did and how long it took him to do it. On the same day, the Company posted a notice stating that employees would be automatically discharged if they failed to fill out a timecard. Respondent offered no explanation for these changes in conditions of employment, and I find that they were motivated by Respondent's union animus and were additional reprisals against employees because they had en- gaged in union activities. By such conduct, Respondent violated Section 8(a)(1) and (3) of the Act. On April 8, Gold again directed Heard to work on a screen, but Heard explained that it made no sense for him to attempt this again because he had tried to perform the tasks the night before, but was unable to do it. Gold told Supervisor Lockrey to make a written note that Heard had admitted that he could not do the work, and he then stated that the employees wanted "union pay," but could not do the work. On the same day, Gold questioned employee Aus- tin about whether his driver's license permitted him to drive a truck. When Austin tried to explain that it did, Gold ordered him to drive a truck. When Austin tried to explain that it did, Gold ordered him to shut up and warned him that he "would throw his ass out" for insubordination. I find that Gold's conduct in these instances, taken in the light of the timing, his other illegal acts, and his union animus are other instances of reprisals against the employees because of their union activities in violation of Section 8(a)(1) of the Act. On April 9, 1971, the Union filed unfair labor practice charges against Respondent which included an allegation that Respondent had threatened employees with discharge if they supported the Union. On or about April 19, Gold asked Heard if he recalled his saying at any time that he was going to lay anybody off. Heard said he could not remem- ber, and then Gold went from employee to employee asking the same question. On April 13, 1971, employee Linder gave an affidavit to a Board agent. On April 19, Gold accused Linder of signing "some kind of paper against him." Re- spondent has offered no explanation for Gold's questioning of employees about the Union's charges, and I find that, in the context of this case, that such interrogation was coercive and an additional violation of Section 8(a)(1) of the Act. I also find, however, that the evidence of what Gold said to employees about a possible layoff is too unclear to support the allegation in the complaint that he threatened employ- ees with layoffs because of their union activities. schedule, while Juliano, Gold's three sons, and Lockery and Coulon contin- ued to work as before . Lockery and Coulon voted in the election, but their ballots were challenged by the Union on the ground that they were supervi- sors. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Alleged Violations of Section 8(a)(5) of the Act The Evidence and Some Findings 1. July 13 and August 4, 1971, Meetings As indicated earlier, there were five challenged ballots in the April 7 election which were determinative of the result. The Regional Director thereafter found that the challenges to the ballots of Norman Gold's three sons should be sus- tained on the ground of their close relationship to the princi- pal stockholder in the Company. This decision made it unnecessary to pass on the challenges of Lockery and Coul- on, and the final count was accordingly five valid votes in favor of the Union, one against, with two unresolved chal- lenges. On June 24, 1971, the Regional Director certified the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, and at all times since then the Union has been the exclusive representative of all the employees in that unit for purposes of collective bargaining.5 On July 13, 1971, Union President Weiss and Business Representative Quinn met with President Norman Gold and Herz, the Company's attorney, in a meeting lasting approximately 1 hour. The parties reviewed the Union's proposed contract and agreed on such matters as sick leave, vacations, work jurisdiction, and grievance procedure. Wages were also discussed at this meeting, and Gold stated, according to Quinn's uncontradicted testimony, that he "could live with" the Union's scale for mechanics, al- though he raised a problem about learners and helpers. Quinn told Gold that he was aware that the Company was teaching employees to become mechanics and assured him that they could agree on a special rate for learners. The parties discussed the Union's proposal for a union- security clause with the usual requirement for membership in the Union after 30 days, but no agreement was reached on this issue, and General Counsel contends that Respondent's conduct in that area is indicative of bad-faith bargaining. Attorney Herz admitted in his testimony that he announced at the outset of the July 13 meeting that the Company wanted an open shop, but he also stated that Weiss insisted that all persons who voted in the election would have to join the Union. When Herz tried to discuss Gold's sons, who had voted under challenge, but who had been ruled out of the unit by the Regional Director, Weiss refused to discuss the matter, according to Herz. He agreed, however, that Weiss told him that when they saw how at- tractive the benefits provided in the Union's pension and welfare plans were, the sons would be glad to join the Un- ion, and that it was then agreed that Weiss would send a booklet describing the plans to the Company for study. Weiss' and Quinn's versions of the Respondent's stand on union security at the first meeting portray Respondent as more adamant than Herz suggested. Although Weiss con- S The appropriate unit is all glasscutters, glass installers, window repairmen, door, mirror, and screen hangers, painters, drivers, helpers, maintenance em- ployees, and shipping and receiving employees of Respondent, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act Respondent admits the facts as found above with respect to the appropriate unit and the Union's representative status ceded that he demanded that every employee who voted in the election must join the Union, he added that the Compa- ny insisted that since an open shop was a "must," there was no point in discussing anything else until the Union agreed to that term. Weiss said he could not accept such a condi- tion, and he suggested that other matters be discussed. According to Quinn, Gold's insistence on an open shop was "emphatic," but he argued that union security was "fundamental." The parties met again on August 4, 1971, but the ses- sion broke up in about 5 minutes. Weiss testified that Herz told him at the very outset of the meeting that nothing would be discussed until the Union agreed to an open shop. He amplified this statement somewhat by also stating that there were two items the Company wanted agreement on; namely, an open shop and "who should belong to the union and who should not." He testified that he then asked Gold and Herz if they wanted to talk about anything else, and when they indicated that they did not he and Quinn left the meeting. On cross-examination, Weiss recalled that Herz and Gold had attempted to get a clarification of the status of Gold's three sons under a union-security agreement, and he conceded that he refused to discuss that problem and de- manded that anyone who had voted in the election, includ- ing the sons, be covered by the union-security clause. Although Weiss continued to maintain that Herz opened the meeting by demanding agreement on an open shop and on the identity of those employees who would be required to join the Union if there should be some form of union security agreed upon,6 he also very frankly stated that he told Herz that he would not agree to any contract that "did not have a union security clause in it," refused to discuss the question, and "walked out of the office" on that issue only. Herz testified essentially to the same effect as Weiss. He added, however, that Gold's sons advised him before the meeting that they did not want to join the Union and pre- ferred to remain covered by the Company's own insurance plan. He demanded an open shop at the beginning of the meeting, but he said Weiss refused to discuss it and insisted that all employees join the Union. He tried to suggest a compromise, he said, but both Gold and Weiss became very emotional and loud. He and Quinn tried to calm the two, but the meeting dissolved with Weiss threatening to file charges with the Board. Herz said that Weiss used the word "nonnegotiable" in describing the Union's position on union security, but ac- cording to Quinn that was the word Herz used on August 4 to explain Gold's feelings about an open shop. Quinn also testified that Herz said there was no sense talking about the question in view of Gold's strong feelings in the matter. Although Gold became very excited, Quinn said that he 6 An "adamant" demand for an open shop while at the same time insisting on clarification of union membership requirements if there were agreement on union security seem somewhat contradictory, but this is the way Weiss and Quinn described the problem which caused the August meeting to col- lapse It is possible that the parties were not making precise distinctions between inclusion in the unit and membership in the Union, but, in any case, it is clear that Weiss was insisting at this time that all employees who had voted in the election, whether they had been challenged or not, must be covered by a union-security clause NASSAU GLASS CORPORATION 479 tried to move the discussion away from union security to other topics, noting that the parties had already agreed on quite a few matters, but he said Gold very excitedly said he had not agreed to anything and then , after telling his attor- ney that he had warned him that there "was no sense talk- ing," got up and left. 2. The meetings on February 10 and 23 and March 9, 1972 On August 9, 1971, the Union filed a charge with the Board complaining that the Company had refused to bar- gain at the collective-bargaining session on August 4. On October 29, 1971, the Regional Director issued a complaint on the Union's charges and the complaint was amended at the hearing to allege that Respondent negotiated in bad faith with the Union on the additional dates set out above. After the refusal-to-bargain complaint issued, the at- torneys for the parties arranged a meeting for February 10, 1972. Quinn and Union Attorney Ashe met on that date with Herz and Gold in a meeting lasting about 1-1/2 to 2 hours. Quinn testified that at the beginning of the meeting after Herz had asked for time to review the draft agreement used in their earlier negotiations , he advised him that the Union had negotiated a new industry agreement in the meantime and that negotiations would have to include the changes in wages and working conditions reflected in the new contract. As soon as Herz had finished reading the proposed agreement he advised the Union that its wage and union- security proposals were objectional . Quinn testified that he replied that as far as wages were concerned he was confi- dent that agreement could be reached because Gold had said earlier that wages were no problem, and it appeared that the parties were not too far apart on that issue in any event. With respect to union security, Quinn noted the Company's objection, but argued that the Union needed such a provision and urged discussion of it. At some point, Herz admittedly suggested that employ- ees be required to join the Union within 90 days rather than the customary 30. Quinn testified that he first said that he would have to consult Weiss, his superior , about it, but when Ashe commented that he was sure that the Union would go along with the suggestion, he told Herz that he would "stick his neck out" and accept the 90-day provision. Gold was present during this discussion, but did not object to Herz' offer or comment on Quinn's acceptance, Quinn said. During the February 10 meeting, Gold noted that the Company paid for a private hospitalization plan and want- ed to know exactly how much the Union's wage and fringe benefit proposals would cost so that he could have a com- parison made. Herz then computed the Union's economic package, consisting of wages and welfare, pension, and an- nuity contributions at $5.89 per hour per mechanic. Quinn testified without contradiction that, after he agreed that Herz' calculations were approximately correct, Gold stated, "That number doesn't scare me, I can live with that." Quinn said that the various cost items , such as wages, pensions, welfare, and other fringe benefits, as well as an- nual increases in those areas during the life of the agree- ment, were broken down on February 10 for Gold 's benefit and that he felt there was agreement on these matters and on union security during the meeting. He also testified with- out contradiction that the parties agreed to additional sick leave and vacation privileges as contained in the new indus- try contract. According to Quinn, since the parties "seemed to be pretty much in agreement," he suggested that they meet "as soon as possible to consummate signing of the agreement." Quinn met with Herz and Gold again on February 23. Attorney Ashe and Union President Weiss were not present. According to Quinn, the parties "again went over the con- tract step by step ... (and) hit just about every part of the agreement." The union-security clause was mentioned again, he said, when Herz straightened Gold out on his erroneous interpretation of its meaning, but there was no extended discussion of the clause because it had already been agreed to. Although Quinn had given Gold a breakdown of wage and fringe benefits costs at the previous meeting, Gold asked for it again, and Quinn gave it to him during the February 23 meeting, he said. Quinn testified that, on February 23, Gold stated, as he had earlier, that mechanics' wages were no problem because he would have to pay the area rate anyway to compete for labor, but he did not feel that helpers, learners, or trainees should be paid the mechanics' rate . Quinn said that he assured Gold that there would be no problem about persons who were being taught the trade by Gold and that an adden- dum to the contract covering them would be written. This, he said, seemed to satisfy Gold. Quinn testified that he still understood that there was agreement between the parties on a contract, and he said he so stated at the meeting of Feb- ruary 23 and suggested that he prepare a contract for the execution at the next meeting. Quinn met alone again with Herz and Gold on March 9, and this time Gold's son Peter was also present. Quinn presented Herz a draft of a contract he had prepared based on his understanding of what had been agreed to previously. Herz read the agreement and called Quinn's attention to a provision concerning pay for employees on jury duty which had not been previously discussed. Quinn agreed that it had not, but had been copied from the Union's new industry contract . He indicated willingness to discuss the matter if there were a problem, but Herz said there was none. Herz then said there were problems, however, in regard to wages and union security, and Quinn, addressing himself to Gold, complained that he thought that the parties had reached a complete agreement and that Gold was reneging, but he said Gold replied that he had not agreed to anything. Quinn also stated that Gold wanted to adjourn the meeting immediately, claiming that he was busy, he was ill, and he had to go to California. There was some brief additional discussion, however, for Quinn recalled that Gold also said the Union's wage proposal was out of line and that Peter Gold commented that the economics of the industry would not justify the wages demanded. He also remembered Gold insisting on an open shop and his replying that this subject had been resolved by agreement on a 90-day provision, but he said Gold again stated that the Company had agreed to nothing. Quinn asked Gold whether he had a counterpropo- sal, but Gold replied that there had to be an open shop and 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union could not tell him which employees had to join the Union. Gold again maintained that he was ill and had to leave. Herz asked Quinn to seek a postponement of the hearing on the Union's charges in the instant case, but Quinn refused, but he did agree to meet again with the Respondent after the hearing. The parties have met again, but apparently they have not resolved their differences. Herz disagreed in some respects with Quinn's version of what had occurred at the bargaining sessions in February and March 1972. In regard to union security, he said there was a dispute about it as well as about who was part of the bargaining unit at the February 10 meeting and that Quinn finally conceded that Peter Gold was excluded from the unit as an office employee. After touching on the wage issue, the parties came back to union security, and Herz said that he, acting as a kind of "arbitrator," without resolving the unit inclusion problem, suggested that employees be allowed 90 days to join the Union, instead of the customary 30, to conform with the probationary period for new employees. This proposal was "something that came off the top of (his) head," he said, and neither he nor his client had given it any thought.? Herz testified that Quinn did not accept his pro- posal but told him that he would have to consult Weiss first, and that he then told Quinn that Gold would have to study it also. He also testified that Quinn advised him at the beginning of the next meeting that Weiss had approved acceptance of Hera' proposal and that he informed Quinn that Gold still had the suggestion under consideration. Herz' testimony about the rest of the February 10 meet- ing and the entire February 23 and March 9 meetings is very brief. He said there was a serious problem of wages on February 10, because the Union was demanding the same scale for all employees even though some of them were earning less than half as much as what the Union was ask- ing. At the February 23 meeting, the wage problem still existed, he said, because the Union was demanding more money than it had before, and so the meeting adjourned with Gold promising to take the matter up with his ac- countant for study. Hen said, when the parties met on March 9, Gold stated that he could not pay the wages the Union was asking and still stay in business, and although the parties tried to "go a little further that night," Gold complained of being ill, and they adjourned. I find in Quinn's version of the February and March 1972 bargaining a more complete, accurate, realistic, and reliable account of what transpired in regard to the impor- tant issues involved and of what the parties understood was happening.8 Hen did not refer to matters which Quinn emphasized and he was inclined to draw general conclusions instead of relating specific comments or discussions. Although, for example, Quinn testified without contradiction that the Union's total economic package was twice broken down for Gold's benefit and that Gold commented that the figure did not frighten him because he could live with it, Hen merely 7 I struck this testimony on General Counsel 's motion, but I was in error for it bears on the question of Respondent's good faith in making the propos- al and withdrawing it later. 8 Gold, who attended all meetings, did not testify, and neither did Peter, who attended only the last . Union Attorney Ashe, who was present at the February 10 meeting, also did not testify. stated that there was a serious wage problem dividing the parties based on the variety of wage rates Respondent was then paying its employees, and he did not deny that Quinn assured Gold that the Union would agree to a special rate for learners. Quinn's account is more thorough and com- plete in other respects. Herz agreed that the parties were in accord on certain matters, but he did not deny Quinn's testimony that Gold claimed at the March 9 meeting that he had never agreed to anything. Quinn's description of Gold's emotional termination of the March 9 meeting for claimed personal reasons is more realistic than Herz' terse statement that Gold was ill, and it is given support by the fact that Gold had reacted similarly in an earlier meeting.9 Herz was not as accurate as Quinn with respect to the Union's new wage demand based on its new industry contract. He was made aware of this on Feb- ruary 10, not February 23, as he testified, and this is not insignificant, because if Gold knew the amount of the total package demanded as early as February 10, his failure to object of it then and his meeting again without protest on February 23 is consistent with Quinn's testimony that basic agreement on wages and fringe benefits had been signaled by Gold and makes his sudden reversal of position in this area on March 9 more indicative of an intention to frustrate agreement. I also consider Quinn's account of how agreement on the principle of union security was arrived at as more real- istic and accurate than Herz'. Quinn's testimony that Gold was silent when Herz proposed a 90-day union-security clause is undenied as is his statement that, after agreement was reached, Gold misunderstood the full meaning of the clause and had to be straightened out by his attorney. All this strongly suggests that Herz had authority to make a binding agreement in that area and that the idea did not come off "the top of his head," as he stated, and that Gold was not "studying" the question, but had accepted union security in principle. I credit Quinn's more detailed version of the February 10 and 23 and March 9 meetings, therefore, rather than Herz' abbreviated account, and I find that Respondent of- fered a 90-day union-security clause, which the Union ac- cepted on February 10, the day it was made; that the parties were also in fundamental agreement on wages and fringe benefits by February 23; that, on March 9 Gold revoked his assent to the principle of union security and his tacit agree- ment on wages, and then radically altered his position on economics by claiming inability to afford the Union's de- mands, giving no indication of what Respondent might con- sider, and refused without justification to discuss the matter further. C. Analysis, Additional Findings and Conclusions I cannot find as the complaint alleges, that at the July 13 and August 4,197 1, meetings, Respondent negotiated in bad faith with no intention of reaching an agreement with the Union. On July 13, the parties met for 1 hour and admittedly 9 On August 4,1971, after insisting on an open shop , Gold stated that some of his employees were no-good "sons of bitches," dead wood, and not worth 2 cents. He also had sharp words for his attorney before he and Weiss became excited and loud as the meeting disintegrated. NASSAU GLASS CORPORATION 481 agreed on a number of important items. In addition the Re- spondent indicated an open mind on economic matters, for Gold said he "could live with" the Union's proposal. It is true, however, that at both meetings the Respondent took the posi- tion that an open shop was a "must" and that it would not discuss anything else until the Union agreed to it, and it is on this evidence that General Counsel bases his case, arguing that a predetermined position to reject union security in an abso- lute sense makes further discussion sterile and thereby frus- trates the bargaining process. Respondent was required to bargain with an open mind about union security as it was about wages, hours, or other conditions of employment, but it is impossible to as- sess the degree of Respondent's adamance on that issue in these first two meetings because the Union was just as un- yielding as Respondent and would not discuss, let alone agree to, exempting anyone from the coverage of its union- security proposal, even though the Board had found that Gold's sons were not in the bargaining unit. This is clear from Weiss' frank and revealing testimony set out above. Briefly, he said that he insisted that anyone who had partici- pated in the election, including Gold's sons and two other employees whose ballots had been challenged by the Union and whose eligibility was never resolved, must join the Un- ion, and he conceded that when Herz attempted to explore the matter, he would not discuss any exceptions, would not agree to any contract that did not provide for union securi- ty, and "walked out" of the August 4 meeting on that issue. On February 10 or 23, 1972, after bargaining com- menced again, the Union dropped its demand that Peter Gold, son of the owner and an office employee, be covered by the union-security clause, but questions with respect to the coverage of other employees were not fully resolved, although Herz said the Respondent had an open mind in that regard. If the Union had indicated this much flexibility in the first two meetings, the course of bargaining might have taken a different direction. This is, of course, specula- tive at this juncture, but the Union's early refusal to explore any kind of a compromise solution precludes a fair and reliable evaluation of the state of Respondent's mind on July 13 and August 4, 1971. I find, therefore, that Respon- dent did not refuse to bargain on those dates in violation of Section 8(aX5) of the Act. Respondent's actions in the February and March 1972 meetings are more revealing of its true intentions ; however, on the facts as I have found them, the Union was led to believe, and did in fact believe, that final agreement was imminent at the end of the February 23 meeting. Quinn's testimony that he told the Respondent's representatives at that time that he would prepare a contract for execution at the next meeting is undenied, and it does not appear that anyone warned him at the time that he was overly opti- mistic. Any experienced observer or practitioner in this field knows that the atmosphere necessary for effective and peaceful negotiations can be easily destroyed or polluted by reneging on or even raising issues which have already been laid to rest. This unfortunate result may sometimes be at- tributed to ineptness, but I am convinced on this record that Respondent's radical and unexplained shift in position on March 9, as I have found it above, was more than maladroit and was, in fact, designed to stall or block agreement. Addi- tional support for this conclusion is found in Respondent's other unfair labor practices found in this case and in Case 29-CA-2050. Respondent opposed the unionization of its employees, and it coerced, restrained, and discriminated against them in connection with both the 1970 and 1971 elections. When the returns of the last election indicated that a certification of the Union might result , as it ultimately did, Respondent engaged in a variety of petty and serious reprisals against those who had selected the Union to repre- sent them. Gold was reluctantly drawn to the bargaining table by his attorney, and even though I have found that the Union's stand on union security at the first two meetings precludes a finding that Respondent had no intention of bargaining in good faith on that issue at that time, Gold's breaking off of negotiations on specious grounds on March 9 was very much like his emotional outbursts on August 4, 1971, and this shows his continued opposition to collective bargaining and reveals that his withdrawal of concessions previously made was part of a plan to frustrate agreement. I find and conclude that Respondent negotiated with the Union in bad faith on February 10 and 23 and March 9, 1972, in violation of Section 8(a)(5) and (1) of the Act. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By promising employee Heard benefits in order to induce him to refrain from supporting the Union, and by threatening Heard and employee Austin with discharge, Respondent violated Section 8 (a)(1) of the Act. 4. By assigning employees to more arduous and less agreeable tasks because they had engaged in union activities, Respondent violated Section 8(a)(1) and (3) of the Act. 5. By providing employees Heard , Linder, Leary, Aus- tin, and Dunne with less employment and overtime than they normally would have received , Respondent violated Section 8(a)(1) and (3) of the Act. 6. By requiring employees to return work uniforms pre- viously furnished them without charge and by requiring 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees to purchase tools which Respondent had previ- ously furnished them without charge, Respondent violated Section 8(a)(1) and (3) of the Act. 7. By requiring employees to submit timecards for each job performed, upon pain of dismissal, and, contrary to past practice, by sending an employee home for the day because he had reported a few minutes late, Respondent violated Section 8(a)(1) and (3) of the Act. 8. By coercively interrogating employees about filing of charges with the Board and about cooperating in the investi- gation of the charges, Respondent violated Section 8(a)(1) of the Act. 9. The Union is the statutory representative of employ- ees in the unit found appropriate. 10. By refusing to bargain in good faith with the Union on February 10 and 23 and March 9, 1972, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 12. Respondent did not threaten its employees with layoffs in violation of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended.10 ORDER such understanding in a signed agreement. (c) Post at its Hempstead, New York, place of business, copies of the attached notice marked "Appendix."11 Copies of said notice, on forms provided by the Regional Director for Region 29, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspic- uous 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. (d) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.12 10 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 in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ,Z In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees about filing charges with the Board or about other union activities they may engage in. (b) Promising employees benefits in order to cause them to refrain from engaging in union activities. (c) Discriminatorily reducing employee hours or overtime, requiring employees to pay for uniforms or for their tools, assigning employees to less agreeable or more arduous task, changing timecard requirements, sending em- ployees home because they report late, threatening employ- ees with discharge, or otherwise harassing employees because they have engaged in union activities. (d) Refusing to bargain in good faith with the Union as the exclusive representative of employees in the appropri- ate unit. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative actions which I find will effectuate the policies of the Act: (a) Make whole James Heard, Philip Linder, Kirk Leary, Michael Austin, and Steven Dunne for the amount of wages they lost by reason of Respondent's discriminatory reduction of hours and overtime on April 8, 1972, with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the unit found appropriate, if an understanding is reached, embody APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively regard- ing wages, hours of work, and other terms and condi- tions of employment with Glass Warehouse Workers and Paint Handlers Union, Local 206, International Brotherhood of Painters and Allied Trades, AFL-CIO, as the exclusive bargaining representative of our em- ployees in the following unit: All glasscutters, glass installers, window repairmen, door, mirror and screen hangers, painters, drivers, helpers, maintenance employees, and shipping and receiving employees employed by the Company at 389 Peninsula Boulevard, Hempstead, New York, excluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. WE WILL, upon request, bargain collectively with said Union as exclusive representative of said employ- ees and, if an agreement is reached, embody it in a signed contract. WE WILL NOT coercively interrogate our employees about their union activities, threaten them with dis- charge, or promise them benefits in order to get them to give up the Union. NASSAU GLASS CORPORATION WE WILL NOT discriminate against our employees because of their umon activities by cutting their hours or overtime, assigning them to more difficult tasks, taking away their free uniforms and tools, installing new time reporting systems, sending them home from work because they report late, or otherwise engaging in reprisals against them. WE WILL make whole James Heard, Philip Linder, Kirk Leary, Michael Austin, and Steven Dunne for the wages they lost when we reduced their hours and overtime. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by the National Labor Rela- tions Act. Dated By 483 NASSAU GLASS CORPORAnoN (Employer) (Representative), (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212-596-3535.