The Gerstenslager Co.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Gerstenslager Company and International Union Allied Industrial Workers of America, AFL-CIO, Amalgamated Local Union No. 813. Case 8-CA-6772 March 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 28, 1972, Administrative Law Judge' Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, Respondent and the Charging Party filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions2 of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Gerstenslag- er Company, Wooster, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 Member Jenkins would additionally find, in agreement with the Charging Party's exceptions, that Respondent's meat-rating proposal of December 1971 was made for the purpose of undermining the Union's position as bargaining representative and constitutes additional evidence of Respondent's failure to bargain in good faith In his view, there is no valid basis to distinguish the making of the merit-rating proposal from the other more stringent provisions proposed by the Respondent which are herein found to have constituted a part of the Respondent's total course of unlawful conduct Indeed, a careful analysis of Respondent' s merit-rating proposal reveals it as completely undermining previously agreed-to provisions and totally destructive of prior negotiations Moreover, in Member Jenkins' view, there is no basis for assuming, as did the Administrative Law Judge, that the General Counsel treated the merit- rating proposal different from the series of other proposals herein found to be indicative of Respondent's failure to bargain in good faith To the contrary, it would appear that this proposal, along with the other proposals, was presented as one more facet of Respondent's unlawful bargaining conduct Finally Member Jenkins finds little or no evidence supporting the Administrative Law Judge's finding of "changed circumstances" Justifying Respondent's proposal In his view, the "evidence" in this regard consists of nothing more than unsupported, self-serving statements of Respondent's witnesses, plainly insufficient in solid substance necessary to ground a finding of "changed circumstances " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Trial Examiner: This case was heard at Wooster, Ohio, April 18-21, 1972. The original charge was filed December 17, 1971, and served on the Respondent December 23, 1971. The complaint was issued January 31, 1972. The issues are whether the Respondent, on and after September 15, 1971, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by (1) failing and refusing to bargain in good faith; (2) unilaterally instituting a merit-rating system and a different method of computing seniority; (3) conducting direct negotiations with employees, and negoti- ating and entering into personal employment contracts individually with employees; (4) withdrawing proposals previously agreed to; (5) unilaterally eliminating supersen- iortty of union officers; and (6),unilaterally terminating an existing hospitalization plan Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT ' AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is an Ohio corporation engaged at Wooster, Ohio, in the manufacture of bookmobile trucks and van trucks used in the transportation of mail and freight by the U.S. Postal Service Corporation. It annually receives materials and supplies valued in excess of $50,000 from points outside the State of Ohio, and ships finished products valued in excess of $50,000 directly to points outside Ohio. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent also admits, and I find, that the Charging Party (herein called the Union) is a labor organization within the meaning of Section 2(5) of the Act. i Except as indicated, the facts are undisputed The credibility findings herein are based on demeanor, the knowledge upon which testimony is based, whether it is specific or vague, whether or not it is corroborated or supported. and the probabilities I have taken into consideration Personnel Director C Robert Rasor's admission on the stand that in 1965 he pled guilty to a charge of embezzlement for which he was placed on probation for 2 years and resigned from the bar of the State of Ohio This incident of dishonest conduct has caused me much concern in assessing Rasor's credibility However, the record also shows that Rasor has served his probation, made restitution, and served in the responsible position of personnel director to the Respondent's apparent satisfaction since 1967 In these circumstances, and based on my observation of him on the witness stand, I have concluded that his testimony is entitled to be evaluated on the same basis as that of the other witnesses, and 1 have so evaluated it Cf N L R B v Dimon Coil Company. Inc, 201 F 2d 484, 487-490, Federal Stainless Sink Div of Unarco Industries, Inc, 197 NLRB No 76 202 NLRB No. 40 THE GERSTENSLAGER COMPANY 219 II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background I find, as alleged in the complaint and admitted in the answer, that the Union has been since 1941, and is now, the exclusive representative of the Respondent's employees in an appropriate unit of all hourly rated plant employees, excluding office clerical employees, professional employ- ees, and supervisors as defined in the Act. The last collective-bargaining agreement between the Respondent and the Union expired April 4, 1971. Pursuant to notice served by the Union, the parties met on February 10, 1971, to begin negotiating a new agreement. At this and subsequent meetings Attorney Arthur Moore, Vice Presi- dent and General Manager Richard Fishburn, and Personnel Director C. Robert Rasor negotiated for the Respondent. For the Union were Eugene Kroneker, regional representative, subsequently replaced by Regional Representative Nick Serraglio, and a shop committee of employees-Howard Cooper, Robert Eyler, Christy Ni- chols, Don McMichoels, and Joseph Hughes. After about 12 meetings, the Union struck the Respondent on April 4, 1971. The strikers were all eventually permanently re- placed. On September 18, 1971, the pickets were removed, and on September 21, 1971, the Union informed the Respondent of the strikers' unconditional request for reinstatement. The Respondent has hired no new employ- ees since that date. Some of the strikers have been recalled; others have not. The parties held a total of approximately 31 meetings, with a Federal mediator in attendance at most of them, between February 10 and December 9, 1971, the date of the last meeting. No agreement has been reached. The Respondent stands ready to meet again upon request.2 At the first meeting, February 10, 1971, the Union presented 91 proposed changes in the agreement which was about to expire, including a yearly wage increase of $1 an hour plus "cost of living" and more liberal fringe benefits, union shop to be substituted for the maintenance-of- membership clause in the old contract,3 abolition of working foremen, and "plant-wide seniority." The Union also proposed a substitute for a provision in the expiring contract that the Company could subcontract "such work as it has done in practice in the past," a new provision restricting subcontracting to "the maintenance of the buildings." During the ensuing months, the Union added seven additional demands. The February 10 meeting was devoted chiefly to an explanation of its proposals by the 2 To the extent that Union Representative Serraglio intended to imply, in his testimony, that Attorney Moore refused a union request to meet after December 9, I discredit him and credit Moore's testimony to the contrary 3 1 discredit the testimony of Union Representative Kroneker and Bargaining Committee Chairman Cooper that Moore and Fishburn told them, at this and subsequent meetings , there would never be a union shop in the plant I credit Moore, Fishburn, and Rasor that they told the Union that they would not agree to a union shop within the foreseeable future 4 Although the General Counsel contends that the Respondent's proposal 9 would have imposed a new requirement that all grievances which reach step 2 must give the names of all grievants, and be signed by at least one grievant, both these requirements had been included in the expiring contract (art. V, sec 4, step 2, p 17) In any event, the Respondent withdrew this proposal before March 22. Similarly, with respect to the Respondent's proposal 6, that no employee be permitted to leave his work to discuss any matter with a shop committeeman or steward, but must request his steward Union. In addition, at this meeting, and/or at subsequent meetings, the parties agreed that, in accord with past practice, all agreements would be tentative until a complete collective-bargaining agreement was reached. Although all witnesses testified to the same effect regarding the substance of this agreement by the parties, they testified differently as to their understanding of its meaning. Thus, the Union's witnesses testified it meant that items agreed to or tentatively agreed to were simply "agreed to" and would not have to be negotiated further; the Respondent's witnesses testified that all such items were merely "tenta- tively agreed to" and could be reopened in changed circumstances. The second meeting was held February 17, 1971. The Respondent presented its proposals, consisting of 30 changes in the old contract. Included in the Respondent's proposals were the following, numbered as in the docu- ment presented to the Union: (5) A subcontracting clause giving the Company "the right to subcontract out such work or services as it believes can be done more expeditiously, more effi- ciently, or less expensively than it can be done in house." (7) An amendment to the old contract requirement that a steward or committeeman will acknowledge in writing delivery of an employee discharge or discipline notice, providing that any steward or committeeman who refused to do so be suspended for 5 days. (8) A new provision that grievances could be initiated only by the employee or employees directly affected, except that grievances which could directly affect a substantial number of employees could be filed by the Union.4 During subsequent negotiating sessions concessions were made by both sides. The Union requested the Respondent to prepare a "complete proposed contract" for submission to its membership at a union meeting scheduled for March 24, and to provide each employee with a copy. The Respondent did so, and the parties met on March 22 to discuss it. In paragraphs 5, 7, and 8 of that document the Respondent reaffirmed its original proposals 5, 7, and 8, stating that those proposals had not been agreed to. The document indicates that a total of 2 company proposals had been agreed to; 15 (including a company- proposed 3-year term, and a more liberal working foremen provision) had not been agreed to and were still on the table; and 6 had been withdrawn by the Company after the be sent to the employee's work station, the Respondent withdrew this proposal at or before the March 22 meeting when the Union acknowledged that all employees knew they were not permitted to stop by the stewards' or committeemen's work stations to talk At a meeting held on March 8, an issue was raised by the Respondent regarding the establishment of a classification system There was no classification system at the plant. all employees being paid at the same scale whether they performed welding, assembly. finishing, or any other job Although No 53 of the Union's initial proposals of February 10 was "Standard Job Classification." the meaning of which is unexplained in the record, there is testimony that the Union objected to the Respondent's proposal, and was of the view that, in any event, there was no time to devise a classification system during the current negotiations The parties then agreed to put the question aside and to start work on such a system after a new contract was signed 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union rejected them. It indicates that 19 union proposals had been agreed to. The Company refused to agree to three others and counterproposed as to them. Seven additional provisions were designated as part Company and part Union, to which agreement had been reached, at least in principle, the Company suggesting language as to two.5 The Respondent put forward its first monetary offer at this time, consisting of increased fringe benefits, and an hourly wage increase, designated as "final," of 25 cents a year for 3 years in increments of 15 cents and 10 cents each year. Although several witnesses testified that there were further monetary proposals and counterproposals during this meeting, there is no credible evidence that the Respondent varied from its offer of an immediate wage increase of 15 cents effective April 4, 1971, with the second 1971 increment of 10 cents due October 4. At the union membership meeting of March 24, the employees voted to reject the new contract offered by the Respondent, and to strike when the old contract expired. Although additional negotiating sessions were held (a total of 12 before the strike), the Union struck the Respondent April 4, 1971, as indicated. All witnesses testified that the major issues at the time of the strike were union shop, working foremen, and Respondent's authority to subcon- tract unit work .6 All testified there was no impasse on wages. During the strike, the parties continued negotiating, and the Respondent continued to operate the plant, at first with supervisors and office employees. In early June, however, the Respondent put into effect the 15-cent-an-hour wage increase offered to the Union in March, and began hiring permanent replacements. Contrary to past hiring practice, the Respondent hired all replacements at top scale which, with the 15-cent increase, amounted to $3.10 an hour.? At a meeting on June 22, the parties tentatively agreed to change the definition "old" employees with plantwide seniority for purposes of "layoffs, recall, promotions, and transfers" from those employed before 1960, as provided in the expired contract, to all those employed longer than 18 months; those employed for less than 18 months were to be considered "new" employees with only divisionwide seniority. The result of this change, which was to take 5 Figures are approximate, as the document is not altogether clear Some provisions are designated as agreed to in part or in principle The March 22 document made no reference to other proposals made by the Union on February 10 and by the Company on February 17, and there was no testimony concerning their status on March 22 6 Union Representative Kroneker testified that the Respondent's proposal to restrict the kinds of grievances which could be filed by the Union, to which the Union objected, was discussed at a number of meetings, but no agreement had been reached at the time of the strike He indicated, however, that this was not a major issue at the time of the strike He also testified that another issue was the Company's desire to dispense with the old contract provision giving an employee the right to have a steward or committeeman present when he is disciplined or discharged Other evidence indicates, however, that the Respondent made such a proposal for the first time on October 12, 1971 7 At first the Respondent hired mostly students, informing them that their jobs were permanent It advised the Union, however, that most of the students would probably return to school, so there would be no problem about recalling strikers when the strike was over As the summer wore on, with no end of the strike in view, the Respondent, after late July, hired more and more nonstudent replacements 8 I credit Kroneker's testimony, supported by documentary evidence, that the Respondent made this proposal on June 25, despite Moore's effect only after all strikers were recalled or on April 1, 1972, whichever occurred first, was to increase the number of employees entitled to plantwide seniority. Tentative agreement also was reached to accept the subcontracting provision proposed by the Respondent. At the next meeting, June 25, the Respondent proposed that the seniority provision agreed to on June 22 be changed by defining old employees as those hired before, and new employees as those hired after, January 1, 1968.8 When the Union strongly protested, the Respondent affirmed its June 22 agreement on this point. The Respondent also dropped its proposed suspension of stewards and committeemen for refusing to accept or sign a discharge or discipline slip (original proposal 7), and proposed that tender of such a slip would constitute delivery and acceptance by, or notice to, the steward or committeeman, and the employee affected. On July 1, 1971, the Respondent offered the Union a straight 25-cent-a-year wage increase. On August 4, the parties conducted an in-depth review of the bargaining. All witnesses agree that there was give-and- take, both sides changing positions, at this session. Thereafter, at the next meeting, in early or mid-August, the Respondent submitted to the Union a document entitled "Status of Negotiations," dated August 6, 1971.9 The document listed some 6 company,10 20 union,ii and 5 point 12 proposed changes in the old contract as agreed upon. Listed in paragraph 2, as agreed upon, was the subcontracting clause proposed by the Respondent and agreed to by the Union July 22 and 25. Although paragraph 2 of this document also stated that agreement on this change was contingent on the Company's accepting a more liberal plantwide seniority provision, paragraph 9 listed among the union proposals agreed to the same more liberal definitions of old and new employees agreed to on June 22 and 25. The August 6 document also listed agreement to a company proposal that the shop committee chairman or co-chairman would sign any discharge or discipline slip which the steward or committeemen refused to sign (paragraph 3). purported lack of knowledge of it 9 To the extent it is relevant, I do not credit Kroneker's testimony that the Union had requested and expected a contract proposal, and not a document summarizing the status of negotiations, from the Respondent at this time I infer from Kroneker's testimony that there is no substantial dispute that the August 6 document accurately reflected the status of negotiations at that time 10 Checkoff, subcontracting, discipline slips, overtime records, union officials' assignment to first shift, employee physical inability to do assigned work 11 Loss of seniority, transfer to salary status, new and old employees, discharge for garnishment or mental incapacity, waiver of doctor reports, work clothes furnished , auditor's report of profit-sharing plan. industrial injury, physical exams on company time, vending machine money, company payments into pension plan, retirement awards, reactivation of dormant departments. pay for attending grievance meetings, job-bidding procedure, shift differentials, mandatory retirement, pension computations, departments to be listed in contract furnishing copies of contract and handbook 11 Absence due to ill health, injury, or layoff, job loans , overtime for employees temporarily transferred, compulsory and noncompulsory over- time, leaving company premises THE GERSTENSLAGER COMPANY 221 The document indicated that 5 company proposals (including a 3-year contract term)13 and 39 union proposals (including union-shop)14 were still on the table. It listed nine joint provisions (including working foremen) as also still being negotiated.15 On August 30 the Union sent a telegram offering to return to work on condition that all strikers be returned to their jobs. The Respondent refused this offer as not unconditional. The background period ended with a request by the Union, made at a September 10 meeting, that the Respondent state its position with regard to the return of the strikers. B. Events On and After September 15, 1971 The Respondent replied to the Union's September 10 request in a letter dated September 15, 1971, which stated, in pertinent part: The position of the Company is as follows with respect to the specific matter hereinafter set out. 1. If the Union, on behalf of the striking bargaining unit, offers unconditionally to call off the current strike, the company will, when openings become available, take back the presently striking employees in line of strict "time" seniority. In other words the employee with the earliest last date of hire will be taken back first, then on down the line from there. 2. In the event of a subsequent layoff the company will consider all employees, then working, for layoff purposes, to be of equal seniority. The Company will put into effect a rating system, the details of which have not been definitely worked out, whereby each plant worker will be rated by his supervisor and one other Company official at periodic intervals. The rating will be based primarily on the individual's productivity. In a layoff, the least productive according to the last ratings will be laid off. The net effect of the foregoing is that for layoff purposes all employees (1) hired during the strike, (2) who continued working during the strike, (3) who returned to work before the strike was over, (4) who are recalled after the strike is terminated by the Union, will have equal seniority as to "time." Union Representative Kroneker advised the Respondent by telephone about this time that the strike would be terminated. The Respondent requested that this informa- tion be put in writing. A letter dated September 16, 1971, over the signature of Carl Smigel, region 3 director of the 13 Kroneker testified that the Company and the Union had agreed to a 3- year term "as long as we were able to get along with the rest of the proposals " Other company proposals still on the table dealt with work rules, suspension and discharge procedure, distribution of overtime, job bids 14 Union proposals not agreed to dealt with union security, leave for death in family, job bids, holidays, eligibility for holiday pay, working foremen, vacation pay, sick pay, eligibility for hospitalization, hospitaliza- tion coverage, retirement pay, cost-of-living, time and a half for all Saturday work, life insurance, dust system, departments, safety committee, "Choice of arbitration or strike," selling merchandise to employees, inclusion of truckdrivers in unit, vending machines , statement of relations between company and union Some of these subjects were dealt with in two or more union proposals Union, containing an unconditional offer to return all strikers to work was then dispatched to the Respondent.is The Respondent received this letter on September 21 or 22. The pickets were removed Saturday, September 18, 1971. The last replacements were hired during the week ending September 18, and reported to work Monday, September 20. At a meeting held on Tuesday, September 21, the Union expressed disagreement with the Respondent's September 15 letter, particularly paragraph 2 proposing equal time seniority in future layoffs. The Respondent advised the Union that it had not received a letter from the Union offering unconditional return of the strikers, but agreed not to hire any new employees and agreed to recall the strikers as vacancies occurred.i7 In early October, the Respondent began recalling strikers on the basis of strict time seniority.is The rate paid was $3.10 an hour. Each recalled striker was sent a letter inviting him to come in for interviews and "to sign necessary employment forms" on a specified date prior to reporting for work on a date also specified in the letter. Upon arrival at the plant, the striker was requested to sign a document entitled "Request for and Acceptance of Recall." The document stated that the signatory "does hereby request and accept such recall on the terms and conditions set forth." The document further stated: The employee acknowledges that no contract currently exists between the Company and Allied Industrial Workers Union and that any provisions of former contracts do not apply to the employment relationship between himself and the Company, except as the same may be required by law. The employee acknowledges that his employment shall be upon the same terms and conditions as that of employees hired since April 4, 1971, that the general range of such terms and conditions have been ex- plained to him by representatives of the Company, and that he is aware that many such terms and conditions will be further developed in the future by the Company. The employee acknowledges that Company representa- tives have explained to him the emphasis placed on productivity in the company's management philosophy, that employees will be periodically merit rated, that wage rates will be classified as to skill and productivity dependent upon the individuals skill and effectiveness, and that persons failing to maintain certain merit levels may be subject to discharge. The employee acknowledges that lay-off or recall from lay-off and certain other rights will be dependent upon 15 Death in family, posting, job bidding, discharge for insubordination, holiday eligibility , working foremen, sick pay Some overlap of subjects listed in various categories is noted 16 There is no record support for the Respondent 's assertion, in its brief, that the Union requested reinstatement of union members only. it f have discounted Kroneker's testimony that he also requested at this meeting that all office personnel be returned to the office but the Respondent replied that this would not be done immediately As opposed to this vague testimony. which was not pursued by the General Counsel, there is otherwise undisputed and credible evidence that all strikers were permanently replaced 1N Kroneker testified that the parties discussed recall procedures at a number of meetings from August through October , the Union's chief interest being in getting the strikebreakers out of the plant 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individual merit rating rather than prior length of service. A copy of this document was signed by every striker who returned to work and placed in his personnel folder. The Respondent did not advise the Union of this document or discuss it with the Union. The next significant development in the negotiations consisted of the submission of the Respondent's October 12, 1971, proposal. In contrast to the prior documents containing proposals and counterproposals for changes in specific provisions of the expired contract, the October 12 document was a new complete proposed collective-bar- gaining agreement except for wages. This proposed contract, which was discussed by the parties at several sessions, contained the following provisions which, among others, were advanced for the first time:. (1) A 6-year term, with reopener privileges at the end of 3 years on everything except union security, working foremen, and subcontracting (opening paragraph, p. 1). (2) Maintenance of membership in the Union to be reduced from duration of the agreement (as in the old contract) to duration of 6 months; a checkoff provision agreed to on August 6 deleted in favor of a no-checkoff provision (art. II, p. 2). (3) Except for an employee's discussion of his grievance at step 1 with his supervisor (from which his steward was excluded) and the shop committee's regular meetings with company representatives, there was to be no grievance or union activity during regular working hours (art. IV, pp. 6-8, and art. V, pp. 9-12) (4) A proposal that: After the company issues a discipline slip, warning notice, or discharge notice to an employee, he shall have the right to inform the employee's steward but only at such time as the same can be done outside of scheduled working hours [art. IV, sec. 10, p. 9]. (5) The following provisions: Art. VI . . . Section 5. Recall of Sinking Employees. Until such time as all employees who were on strike in 1971 have been given an opportunity to return to work or until their right to recall is lost as herein set forth, the Company will not hire new employees into the Bargaining Unit. When the Company desires to fill vacancies or add personnel to the Bargaining Unit it will recall the oldest employee in point of continuous service with the Company as of April 3, 1971 first, the next oldest employee in such continuous service next, and so on. An employee thus recalled to work must report to work in accord with the provisions of Article VII, Section 8(e) [i.e., within 5 days] or such employee will be removed from the Company rolls, and seniority shall be forfeited. Section 5(a) Loss of Employee Status, if Employee Not Recalled. Any employee who was out of work due to the 1971 strike at this Company and who has not been recalled to work on or before April 4, 1972, shall be removed from the Company rolls and shall have no further right to return to work nor any claim against the Company except as he may have vested rights in the Pension Plan. (6) In layoffs between the time a new agreement is signed and April 4, 1972, all employees to have equal time seniority, the order of layoff and recall from layoff to be determined by productivity (art. VII, sec. 3, p. 18). (7) A drop below an unspecified number of productivity points would be grounds for discharge (art. VIII, sec. 1(m) and (o), p. 20). (8) Although laid-off employees could continue their hospitalization coverage by paying all premiums, unre- called strikers were not to be considered laid off but "not working due to a labor dispute" (art. XIV, p. 36). (9) The Company is to be given carte blanch with respect to working foremen (art. IX, sec. 12, p. 30). The Respondent also resurrected its original proposal 8 (not referred to in its August 6 "Status of Negotiations" document) that a grievance could be presented only by the employee or employees directly affected, without, however, the original addition that the Union could file a grievance which could affect a substantial number of employees (art. V, sec. 2, p. 9). The October 12 document also included the subcontract- ing clause originally proposed by the Respondent and agreed to by the Union on June 22 and 25 (art. III, sec. 4(c), p. 6). Over 15 of the provisions listed in the August 6 document as agreed to were either omitted or changed in the Respondent's October 12 proposal.i9 The October 12 proposal was discussed at a meeting held October 16 and/or October 22, the Union objecting to the above provisions, particularly the exclusion of the Umon from disciplinary meetings as contemplated in the pro- posed article IV, section 10, and to the abrogation of prior agreements. At some time after October 27, the Respondent distribut- ed to employees copies of a memo entitled "Attendance Guidelines." It contained, among other things, the follow- ing: 4. A written statement from a physician will be required to substantiate the fact that absence was due to illness and that the employee is released to return to work under the following circumstances: A. If employee is absent for five (5) or more days in succession. B. If employee has four (4) or more illness absences in any calendar year. The memo added that disciplinary action would be taken on each unexcused absence, and that the extent of 19 Those provisions dealt with such subjects as refusal of a steward to profit-sharing , industrial injury, physical examination on company tithe, accept a discipline or discharge slip, job loans , transfer from hourly to pensions , vending machine money , payment to employee grievants for time salary status , plantwide versus divisionwide seniority for layoff, recall , lost attending steps 4 and 5 grievance meetings, reactivation of dormant promotion , and transfer, based on old versus new employee concept . departments , job bidding, employee attendance at industrial commission overtime , sick leave, bumping into and out of first shift by union officials, hearing THE GERSTENSLAGER COMPANY 223 absences would be considered in each employee's evalua- tion for merit rating.20 The Union was not informed of this document. At a negotiating meeting held on November 23, the Union made two alternate contract proposals, either one of which it would accept: (1) the old agreement, with the term to be negotiated, plus the 15-cent wage increase which the Respondent had granted during the strike; (2) the same as (1) "except including agreements reached from document [status of negotiations] Dated August 6, 1971, pages 1 through 12." The Company rejected both proposals. The final bargaining session was held December 9, 1971. Under consideration was another draft agreement pre- pared by the Respondent. In this draft, the Respondent reverted back to a 3-year term, maintenance of member- ship for duration of the agreement, and checkoff (art. II, p. 2). Practically all of the remainder of the Respondent's October 12 proposals were included again in the December 9 draft in identical or substantially similar language. This draft contained, in addition, a detailed merit-rating productivity system (art. XIV) by which each employee would be periodically classified by his immediate supervi- sor by skill, and rated for productivity. The employee could appeal his classification and productivity to a committee made up of the general manager, personnel director, and production-control representative. The rating would determine the employee's wage rate (specific rates proposed) and his share of the profits under the profit- sharing plan (art. XVI, sec. 6). It further proposed that all employees would have equal time seniority, and that layoff and recall from layoff would be according to productivity (art. VII); and that a drop in productivity below a certain specified point would be cause for discharge (art. VIII). Either at the December 9 meeting, or shortly thereafter, one of the union representatives requested permission for the Union's time-study engineer to conduct a job evalua- tion study in the plant. Thereafter, the Respondent refused permission because in its opinion a time study would have little value in its particular situation or serve no practical purpose for the Company's particular type of operation. Shortly before Christmas, the Company distributed to the employees along with their paychecks copies of a sheet entitled "Gersco News Letter." The first section of the letter was entitled "Merit Rating Plan" and began with: As previously mentioned informally, management is putting a Merit Rating System into effect. After explaining that the purpose of the plan was to compensate employees in relation to their contributions to the Company's progress, the letter stated: Full details of the plan will be furnished each employee in the near future. In the meantime we wanted to inform you of the general plan for your background information. There followed a list of the rating factors,, and a description 20 The expired agreement provided "In case of sickness absence more than six (6) times in a year April 4 to April 3, each report off will be accompanied by written doctor report. In the case of sickness, as reported by a doctor report for more than five (5) days absence, a release report from the doctor will be needed to indicate proper recovery to return to work" (art X, sec 1, p 44) No change in this provision was listed in the August 6 "Status of Negotiations" document as agreed to or proposed No comparable provision appeared in the Company's October 12 or December of the method which would be followed in rating employees. The name of Richard Fishburn, vice president and general manager, appeared at the end of the message. There is evidence that as of the date of the last meeting of the parties, December 9, 1971, 63 strikers had been recalled. Striker Howard Cooper testified that as a member of the union bargaining committee and executive board he was entitled under the old contract to supersenionty dating back to January 1, 1942, for purposes of layoff and recall. He testified that he had not, however, been recalled even though two employees named Messner and Hurst, who had seniority dating from after 1942, have been recalled. The parties stipulated that Christy Nichols, a member of the shop committee on and after April 4, 1971, and therefore within the supersenionty section of the expired agreement, has not been offered reemployment.2i Striker Friend Eikleberry had been employed as a spray painter in the paint shop for 18 or 20 years. He testified that he reported to the plant "sometime in the forepart of October" in response to a notice to return to work. Rasor gave him a "Request for and Acceptance of Recall" form to sign, and told him there was a job for him in the pressroom. Eikleberry responded that he would come back to his old job, but would have to think over the pressroom offer because "that wasn't my work." Eikleberry left the plant, taking the form with him. Shortly thereafter, Eikleberry received from the Respondent a document dated October 26, 1971, entitled "Separation Notice," giving the reason therefor as "Failed to Report for Work." Personnel Director Rasor testified that Eikleberry ex- pressed reservations about the job offer because he was operating his own well-digging business and because he would not be back in his old job; he said if he decided to come back to work he would bring the document "Request for and Acceptance of Recall" and report for work Monday, October 18. When he failed to do so, the Respondent terminated him. Rasor testified without contradiction there was no job opening in the paint shop.22 C. Analysis and Conclusions 1. Refusal to bargain in good faith Although considerable evidence was introduced regard- ing the course of the bargaining in the period before and during the strike, chiefly at the insistence of the General Counsel, who offered such evidence as background, it is helpful mainly in providing a contrast to the Respondent's conduct thereafter. Thus, the Respondent, as well as the Union, negotiated during the background period on the basis of proposals and counterproposals regarding suggest- ed changes in and additions to specific provisions of the old contract. Many meetings were held, and concessions were made by both sides. 9 proposals 21 Striker John Keller testified that he was entitled to be recalled before one Sam Horst who was recalled a couple of days before Keller was However, I find that Keller's testimony in this respect was too vague to be reliable in the absence of any substantiation 22 1 credit both versions of these events, but find that Rasor's was the more complete 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's witnesses, Fishburn and Rasor, credibly testified that their original proposals 6, 8, and 9 (prohibiting employees from leaving their work to discuss grievances with stewards or committeemen, requiring grievances to be initiated by employees unless they could affect a substantial number of employees, and requiring written grievances to give the names of all grievants and be signed by at least one grievant) were intended to reduce the amount of company time spent on grievances by employ- ees, stewards, union committeemen, and supervisors at various steps of the grievance procedure, particularly repetitive grievances, and to reduce the amount of company time lost by employees not directly affected congregating, as these matters had proved to be too expensive in the past.23 As indicated above, two of these proposals, 6 and 9, merely conformed with provisions agreed to by the Union in the prior contract, or with past practices, and were in any event withdrawn by the Respondent before the strike. Proposal 8, regarding the initiation of grievances, did not appear in the August 6 "Status of Negotiations" document, and presumably was also dropped. As to the Respondent's original proposal 7, Fishburn credibly testified that the suspension of stewards for refusing to acknowledge a discipline slip was proposed because a steward had refused to sign for such a slip as required by the old contract. The facts set forth above show that the Respondent on June 25 substituted a tender provision for the 5-day suspension, and, on August 6, accepted a third alternative method of solving this problem. The General Counsel also suggests that the Respondent refused to bargain regarding the three subjects which were the major issues at the start of the strike-subcontracting, working foremen, and union shop. I do not agree. Both parties vigorously pushed their positions on these issues. The Respondent finally, on June 22, prevailed as to subcontracting, apparently in exchange for an expansion of the category of employees entitled to plantwide seniority, one of the Union's chief objectives.24 Although the Respondent rejected several different versions of union shop, I have found above that its representatives did not tell the Union there would never be a union shop, and the record does not show that the Respondent refused to bargain on this issue. The status of working foremen was the subject of proposals and counterproposals throughout this entire period. Although the Respondent's unilateral raising of wages while the issue was under negotiation, and unilateral institution of top-scale hiring not previously offered to the Union, early in June, may have been a breach of faith,25 that conduct was atypical of the Respondent during the 23 1 discredit Kroneker's testimony that the reason given him by the Respondent for making these proposals was that the Company had lost too many arbitrations, as he was unable to substantiate his statement that the Company had indeed lost many arbitrations 24 1 interpret the language in paragraphs 2 and 9 of the status of negotiations document referred to above as confirmation of this view There is no basis, in my opinion, for interpreting this language as meaning that the subcontracting clause agreed to was contingent on the Respondent's agreeing to an even wider expansion of plantwide seniority , as the General Counsel contends 25 See N L R B v Benne Katz, etc, d/b/a Williamsburg Steel Products background period. Moreover, I find that the Respondent's momentary vacillation of June 25 regarding its June 22 agreement expanding the category of old and new employees was insignificant , in view of the minor differ- ences between what it had agreed to on June 22 and what it proposed on June 25, and its eventual reaffirmation, on the same day, of its previous agreement. Upon consideration of the undisputed evidence that although many differences had not been resolved, there was much give and take by both sides, and considering the greater number of union proposals accepted by the Respondent than the other way around and the nature of the proposals agreed to and still being negotiated, it is my view that the Respondent's overall conduct during the background period was not inconsistent with a desire ultimately to resolve its differences with the Union. However, with the termination of the strike, the Respondent's attitude toward the negotiations clearly changed. The Respondent attributes this to its developing need to institute a meat-rating productivity system. Fishburn and Rasor testified that early in the strike company records indicated that strike replacements were performing more efficiently than the regular employees had performed before the strike. Confirmation by subse- quent production figures and studies of the Lincoln Electric Company of Cleveland, where a merit-rating system was in effect, led management to conclude that such a system was necessary to increase productivity and maintain its competitive status. These circumstances, however, do not explain the following conduct: (a) The Respondent, early in October, began to deal directly with the recalled strikers, bypassing the Union. Thus, the Respondent required all such employees to sign its "Request for and Acceptance of Recall" form, which the General Counsel accurately describes as a personal employment contract.26 The employee was required to acknowledge statements implying that the role of the Union had been reduced, that the Respondent alone would determine the terms and conditions of employment, and that the Respondent "will" institute a merit-rating system under which the employee "may be subject to discharge" and "will" determine the future order of layoff and recall.27 Then followed the Gersco Newsletter which advised the employees in even stronger language that the Respondent "is putting a Merit Rating system into effect," with no reference whatsoever to the Union. The Respon- dent again dealt directly with its employees, bypassing their bargaining agent, when it distributed to them its "Attendance Guidelines" containing ah apparent unilater- al change in the sick leave provisions of the old contract.28 (b) As indicated above, the`parties had, prior to this time, negotiated mainly on the basis of proposed changes in and Company, 369 U S 736 26 Cf A BC Food Service, Inc, 176 NLRB 426,432 21 The facts surrounding the Respondent's use of this document, set forth above, clearly refute the Respondent's suggestion that signing it was voluntary on the strikers' part 28 It is well established that bypassing the union and dealing directly with employees is indicative of bad faith Quality Motels of Colorado, Inc, 189 NLRB No 49; Sherwood Ford, Inc, 188 NLRB No 16, U.Tote M of Oklahoma, Inc, 172 NLRB No 21 Contrary to the Respondent's contention , these communications with employees, with the intent of bypassing the Union, cannot be equated with past communications at the THE GERSTENSLAGER COMPANY 225 additions to specific provisions of the old contract. The Respondent's October 12 proposal, however, was a whole new ballgame. The Respondent has offered no reasonable explanation for its withdrawal, in this document, from many provisions to which it had previously agreed which were unrelated to a merit-rating system, other than to insist that this conduct was permitted by the parties' ground rules. Although it seems clear that there was no meeting of the minds on what the effect of an agreement or a tentative agreement to a provision would be, I find that the Respondent's wholesale abrogation without good cause of agreement, or tentative agreement, to such provisions painstakingly reached after 6 months of bargaining, was intended to and did broaden instead of narrow the area of disagreement, and was therefore inconsistent with a genuine desire to resolve differences between the parties.29 (c) The Respondent failed to offer any reasonable explanation for advancing the more restrictive demands described above regarding maintenance of membership and checkoff, grievance procedure, and union activity, which would have reduced the role of the Union as the representative of the employees and administration of the contract. The Respondent's only justification for these demands was reduction in costs, but there had been no new developments regarding such costs since the start of the bargaining, when the Respondent considered it necessary to make less restrictive proposals, which it abandoned before the end of the strike. In these circum- stances, and in the light of the Respondent's direct dealing with the employees and wholesale abrogation of provisions previously agreed to, I find that the purpose behind these demands contrasted with the Respondent's objectives at an earlier stage of negotiations, was solely to undermine the Union's position as bargaining representative. (d) On December 9, the Respondent detailed its proposed merit-rating classification system. Although management representatives testified that they had been engaged for months in evaluating employee performance and developing this plan, they conceded that they afforded the Union no opportunity to participate. Then, when the Union, upon being presented with the plan, requested permission to conduct its own time study, which, I find, was relevant and necessary to intelligently deal with the proposal, permission was refused. Such conduct was further indicative of bad faith.30 Union's request or merely to inform employees of what offers had been made to the Union In view of the Respondent's "duty to treat with no other" than the Union (Medo Photo Supply Corporation v N L R B, 321 U S 678), its bad faith was not condoned or waived by the Union's failure to express immediate opposition to this conduct See Webb Furniture Corp , 158 NLRB 1003 29 M FA Milling Company, 170 NLRB 1079, 1098 See also American Seating Co v N L R B, 424 F 2d 106 (C A 5), McCann Steel Company, Inc, 190 NLRB No. 2, Shovel Supply Company, 162 NLRB 460 30 See General Electric Company, 192 NLRB No 9, General Electric Company, 186 NLRB No 1, Wald Manufacturing Company, 176 NLRB 839, 844, enfd 426 F 2d 1328 (C.A 6). See also N L R B v Truitt Manufacturing Co, 351 U S 149 1 do not understand the General Counsel to contend that the merit-rating proposal itself was indicative of bad faith. In any event, I would find changed circumstances constituting reasonable cause for the Respondent's making of this proposal 31 1 have carefully considered the additional grounds relied on by the General Counsel to support his bad-faith allegation, but find no merit in them (1) I do not construe the proposal that unrecalled strikers be In sum, I find that the Respondent, by refusing permission for the Union to conduct its own time study, by dealing directly with employees and entering into personal employment contracts with employees in the unit and bypassing the Union , and by abrogating agreements and proposing more stringent provisions without reasonable cause, failed and refused to bargain in good faith in violation of Section 8(a)(5) and ( 1) of the Act.31 2. Alleged unilateral conduct (a) The complaint alleges that the Respondent unilateral- ly instituted a merit-rating system affecting its employees. The only evidence presented by the General Counsel in support of his contention that the Respondent actually put its proposed merit system into effect was the testimony of striker Carl Wade who returned to work October 19, 1971. Wade testified that 2 days after his return, Production Bodies Department Superintendent Eddie Shields told him: There would be a merit system put into effect shortly and our performance from then on would determine what pay or what we could receive through productivi- ty or our actions. That this all meant profit if we kept working, we would be sure to work 8 hours a day. . . I asked him about seniority rights, he says we was playing it by ear, he couldn't answer that. When asked whether there is a merit-rating system in the plant, Wade replied, "I couldn't answer that." He testified that he did not know whether he had been merit-rated, and that there has been no difference in his pay because of any merit-rating system. Fishburn and Rasor testified that no merit-rating system has been put into effect, and that no one has been rated. In my opinion, Wade's testimony fails to support this allegation, leaving the denials of Fishburn and Rasor, which I credit, substantially undisputed. I shall therefore recommend dismissal of this allegation.32 (b) The complaint alleges that the Respondent unilateral- ly eliminated superseniority of union officers, contrary to past practice and its agreed-upon proposals during the recent contract negotiations. The evidence presented by the General Counsel consists of the facts set forth above that the Respondent has failed to recall striking union officials Howard Cooper and Christy Nichols, who, it is undisputed, were entitled under considered not working due to a labor dispute" as calling for their exclusion from hospitalization coverage (2) No reason nor precedent has been called to my attention for finding bad faith in proposing that strikers not recalled within a year be terminated, nor would the evidence support a finding that this proposal was made in retaliation against such employees for striking (3) 1 find the termination of Friend Eikleberry was not unlawful in the circumstances described above (4) The General Counsel's contention with regard to the payment of replacements and recalled strikers on and after September 15 at a rate which included the 15-cent wage increase unilaterally granted early in June is time barred N L R B v Byran Mfg Co, 362 U S 411 (5) In view of the number of issues upon which agreement had not been reached on August 6. 1 find no bad faith in the Respondent's refusal to accept either of the Union's two alternate proposals of November 23 32 The complaint alleges that the Respondent unilaterally discontinued its past practice with respect to seniority and instituted a different method of computing seniority To the extent that this allegation refers to the merit- rating system, it is dealt with above To the extent it refers to superseniority for union officers, it is dealt with below 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the old contract to superseniority dating back to January 1, 1942, and that other strikers with straighttime seniority dating from after 1942 have been recalled. The old contract provides as follows with regard to superseniority: Article IV, Sec. 11. Seniority of Designated Individuals. The Stewards during the period of their office shall have greater seniority than any other bargaining unit employee other than shop committeeman and the recording secretary. A member of the shop committee and the recording secretary, during the period of their office, shall have more seniority than any other bargaining unit employee. However, employees who were employed by the company and on the payroll on or before January 1, 1942, shall not be affected by the provisions of this paragraph. Superseniority provided for herein to the designated individuals shall apply to layoff and recall only. The Respondent contends that this provision applied only to recall from layoff and not to recall from a strike. I find that the provision on its face is not clear as to whether it applied to recall from a strike or to recall from a layoff only. Union Representative Kroneker testified that under this provision, a union committeeman "will have super seniority over other employees for layoff purposes." Kroneker was asked, "Would that operate in the case of recall or layoff?" He replied, "Not recall, but layoff because he wouldn't be laid off." It is also noted that the Respondent in its September 15 letter advised the Union of its intent to recall the strikers "in line of strict `time' seniority." Although this proposal excluded granting superseniority to union officers, there is no evidence that the Union, at its September 21 meeting with the Respon- dent or thereafter, questioned the exclusion. There is no evidence of past practice. The record indicates that the Union has struck this plant on three past occasions; all three strikes were of short duration; none of the strikers was replaced; and all returned to work at the end of the strike. There is no evidence that the parties reached agreement or tentative agreement on any change in this provision of the old contract or any new superseniority provision. I therefore find that the evidence fails to show that superseniority for recall of union officers from a strike was required by the old contract, past practice, or any agreement during the recent negotiations. In these circum- stances, I conclude that a preponderance of the evidence fails to support the allegation that the Respondent unilaterally eliminated superseniority of union officers, and I shall recommend that this allegation of the complaint be dismissed. (c) The complaint alleges that the Respondent unilateral- ly terminated the existing hospitalization plan. The General Counsel's evidence consisted of testimony by employee Wade to the effect that he has "a question about" whether the health insurance plan in effect is the same as the plan which was in effect before the strike, because, he said, "We had on top of the form, we had 365 day coverage. On top of this form it says 120." No such forms are in evidence, and Wade added that he has not had occasion to apply for benefits since before the strike and has not compared the insurance contracts. As opposed to this vague and unsupported testimony, Fishburn and Rasor credibly testified that although the cost of the premiums has increased, there has been no change in the hospitalization coverage of employees. I therefore find that this allegation falls for failure of support by a preponderance of the evidence, and recom- mend that it be dismissed. 111. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that the Respondent cease and desist therefrom and from any like or related interference with the rights of its employees guaranteed in Section 7 of the Act, and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 33 ORDER The Respondent, The Gerstenslager Company, Wooster, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively in good faith with International Union Allied Industrial Workers of America, AFL-CIO, Amalgamated Local Union No. 813, as the exclusive collective-bargaining representative of an appropriate unit of all hourly rated plant employees, excluding all office clerical employees , professional em- ployees, and supervisors, as defined in the Act , concerning rates of pay, wages, hours of work , and other terms and conditions of employment , by refusing permission for the Union to conduct its own time study, by dealing directly and entering into personal employment contracts with employees in the unit and bypassing the Union, and by abrogating agreements and proposing more stringent provisions without reasonable cause, or in any other manner refusing to bargain in good faith with the Union. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named labor organization, as the exclusive representative of its employees in the above-described appropriate unit, concerning rates of pay, wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached , embody such understand- ing in a signed agreement. 33 In the event no exceptions are filed as provided by Sec 102 46 of the provided in Sec 102 48 of the Rules and Regulations, be adopted by the Rules and Regulations of the National Labor Relations Board, the findings, Board and become its findings, conclusions, and order, and all objections conclusions, recommendations, and Recommended Order herein shall, as thereto shall be deemed waived for all purposes THE GERSTENSLAGER COMPANY (b) Post at its plant in Wooster, Ohio, copies of the attached notice marked "Appendix." 34 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith 35 IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. 34 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 31 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 8 , in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to bargain collectively in good faith with International Union Allied Industrial Workers of America, AFL-CIO, Amalgamated Local Union No. 813, as the exclusive collective-bargaining 227 representative of our employees in the appropriate unit described below, concerning rates of pay, wages, hours of work, and other terms and conditions of employ- ment, by refusing permission for the Union to conduct its own time study, by dealing directly and entering into personal employment contracts with employees in the unit and bypassing the Union , and by abrogating agreements and proposing more stringent provisions without reasonable cause , or in any other manner refusing to bargain in good faith with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively in good faith with the Union as the exclusive collective-bargain- ing representative of all our employees in the appropri- ate unit, which is: All hourly rated plant employees, excluding all office clerical employees, professional employees, and supervisors as defined in the Act. THE GERSTENSLAGER COMPANY (Employer) Dated By (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 latered, defaced, or covered by any other material . Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East 9th Street, Cleveland, Ohio 44199, Telephone 216-522-3725.