Food Service Co.

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Food Service Company and General Drivers, Ware- housemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America. Case 23-CA-4203 March 30, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 27, 1972, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. 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 conclusions of the Administrative Law Judge and to adopt his 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 Food Service Company, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on May 15 through 19, 23, and 24, 1972 in Houston, Texas, on the complaint of the General Counsel issued on March 24, 1972,1 as subsequently amended, and the answer of Food Service Company, herein called the Respondent or Company. In general, the questions presented for decision are whether the Respondent failed to bargain in good faith i The complaint is based on original and amended charges filed by the Union on January 6 and February 24. 1972, respectively, copies of which were duly served on the Respondent by registered mail on the respective filing dates L Sec 8(a)(I) of the Act makes it an unfair labor practice for an employer "to interfere with , restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 " Insofar as pertinent, Sec 7 provides that "[e]mployees shall have the right to self-organization , to form , join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec 8(a)(3) of the Act , with certain qualifications not material herein. prohibits an employer "by discrimination in regard to hire or tenure of 202 NLRB No. 107 with General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, as the exclusive representative of the Company's employees in an appropri- ate unit; whether the Respondent unilaterally changed its employee insurance program and imposed notification and registration conditions for the reinstatement of strikers; whether it denied the Union relevant information and access to payroll records; whether the Respondent discrim- inatonly denied striking employees reinstatement on their unconditional application; and whether, by the foregoing conduct, it violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended.2 At the close of the hearing, the parties waived oral argument, but, thereafter, the General Counsel and the Respondent filed briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation, with its principal office and place of business in Houston, Texas, is engaged in the wholesale distribution of food and related products In the regular course and conduct of its business, the Respondent annually purchases goods valued in excess of $50,000 which are shipped directly to its facility from sources outside the State It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act If. THE LABOR ORGANIZATION INVOLVED There is no question that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Bargaining history; chronology of events For some 15 years the Union has been the duly recognized bargaining representative of the Respondent's employees in a concededly appropriate unit3 pursuant to successive contracts. Apparently, the relations of the employment or any term or condition of employment to encourage or discourage membership in any labor organization Sec 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively'with the representatives of his employees, subject to the provisions of Section 9(a)" The latter section provides that the representatives selected by a majority of the employees in such unit "shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages. hours of employment or other conditions of employment " S This unit, as defined in the complaint and the most recent ontract, consists of "[a III employees employed by the Respondent at its Houston Texas, facility, but excluding office clerical employees, salesmen, guards. watchmen and supervisors as defined in the Act " FOOD SERVICE COMPANY 791 parties during this period were amicable and harmonious and free of any strikes. The last contract was for a 3-year term due to expire on September 18, 1971, absent 60-day advance notice of a desire to change, modify, or terminate the agreement. In accordance with this provision, the Union, by letter dated July 8, 1971,4 served timely notice on the Respondent to renegotiate the expiring contract. About August 26, John A. Goffney, Sr., the Union's then business representative,-5 delivered the Union's proposed contract to Allen D. Rosenthal, the Company's president. This was a comprehensive document which consisted of 41 articles embodying some 200 provisions far in excess of the approximate 80 provisions contained in the 10 articles in the predecessor agreement. However, wage proposals were tentatively omitted from this document. From August 31 through March 20, 1972, the parties held 15 collective-bargaining sessions.6 At the first five meetings President Rosenthal conducted the negotiations on behalf of the Company, as he had done when the previous contract was negotiated with other union officials. However, after the September 28 meeting, the Company retained legal counsel7 and, in the ensuing negotiations, Attorney Duke assumed Rosenthal's function as the Company's principal negotiator. Rosenthal, nevertheless, continued to attend all but the last two of the meetings. Representing the Union at most of the bargaining sessions was Goffney who was superseded at several meetings as the Union's chief spokeman.8 Also in attendance at various meetings were two employee union committeemen and other company officials. As will be fully discussed below, negotiations did not produce agreement. At the December 3 meeting, the Respondent made a final offer to the Union, which the employees rejected the next day. On December 6, the employees went on strike and picketed the plant until about March 10, 1972. In the intervening period, the Union unsuccessfully attempted to secure the reinstatement of the striking employees, although it appears that at the time of this case, a number of them had already returned to work. There was also a resumption of contract negotiations on February 2, 1972, but these, too, ultimately broke down on the following March 20 when the Respondent for the first time required proof of the Union's majority status before proceeding with the negotiations. As the Union declined to comply with this condition, no bargaining has taken place since that date. In essence, it is the General Counsel's position that the Respondent bargained in good faith until September 28, but that, since Attorney Duke's subsequent appearance in All dates refer to 1971 unless otherwise indicated 5 Goffney became a business representative in November 1970 and continued in that capacity until March 1972, when he was appointed a trustee and ceased representing employees F The dates of these meetings are, as follows August 31, September 8, 14, 21, 28, October 28, November 4, 8, and December 3, 1971, February 2, 9, 16, March 7, 14, and 20, 1972 7 In the negotiations for the previous contract , Rosenthal did not utilize legal counsel 8 Goffney attended all the meetings except the last two 9 It was Goffney's general practice during the negotiations to record on his copy of the Union's proposed contract after the parties had discussed a particular item their disposition of that item by noting alongside the provision "O K ," if Rosenthal accepted it, or "pass" and, in a few instances "open ," if agreement was not reached, and inserting the date of the the negotiations, it failed to discharge its statutory obligation; that such unlawful conduct, at least in part, caused and prolonged the strike; and that the Respondent thereafter discriminatorily denied reinstatement to a number of employees who, as unfair labor practice strikers, were entitled to reinstatement on their unconditional application. We turn to the evidence. 2. August 31-September 28 negotiations As indicated above, there is no question that the Respondent's president, Allen Rosenthal, bargained in good faith with the Union's chief negotiator, John Goffney, at the five sessions held during this period. At these meetings, the Union's proposed contract was exten- sively reviewed and discussed clause by clause seriatim, with the object of ascertaining the points of agreement and differences between the parties It was the parties' procedure to cover as many provisions as possible in one meeting and to carry over the remaining clauses for consideration at subsequent sessions. As a result of these discussions, the parties by the close of the September 28 meeting managed to reach agreement on a substantial number of items, both with and without modification of the Union's proposals, leaving open for further considera- tion those items on which there was disagreement,9 including the Union's separate wage proposals 10 and other economic items. In addition to the concededly agreed- upon and disputed items, there were other provisions in the Union's proposed contract which became the subject of controversy at subsequent meetings as to whether or not Rosenthal had previously accepted them and thereafter withdrew agreement when Attorney Duke replaced him as the Company's chief negotiator. It is upon the alleged withdrawal of agreement, which will be considered below, that the General Counsel relies to a great extent as evidence of bad-faith bargaining. - 3. The Respondent's employment of legal counsel to represent it in the negotiations; the October 28 meeting Evidently finding a need for legal representation in the contract negotiations with the Union, Rosenthal, in the noddle of October, retained a law firm for such purposes and Attorney Duke, an associate in the firm, undertook to handle the negotiations for the Respondent. In fact, this action does not appear to have been unanticipated since on one or more occasions during the earlier discussion of disposition Although these notations were not shown to Rosenthal at the time they were made , I find that, with certain exceptions , they generally reflect the correct disposition of the clauses Indeed, the notations correspond with the disposition of many items indicated in the Company's counterproposal which was submitted by Attorney Duke on November 4 Rosenthal also "scribbled" some notes on his own copy of the Union's proposal, which according to him and Duke, was lost 10 During these initial negotiations , Goffney orally proposed a $1-an- hour across-the-board wage increase for the first year and additional $1 hourly increases thereafter He testified that he was not aware whether the wage proposal was permissible under phase I of the Price -Wage Freeze in effect at that time Observing that the Union's wage demands were quite large , Rosenthal stated that he would submit his wage offer after reviewing all the cost items 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain proposed contract clauses , Rosenthal indicated to Goffney that he was having some difficulty understanding them and that he intended to consult legal counsel. In preparation for the next bargaining session, Duke reviewed with Rosenthal the prior negotiations in an effort to learn what items in the Union 's proposed contract were agreed upon and which ones were still open and in dispute. Although Duke conceded that he was unable to secure a clear picture of the status of the negotiations from his conversation with Rosenthal or from Rosenthal's marked- up copy of the Union's proposed contract , he questioned the wisdom of Rosenthal's admitted acceptance of certain provisions. Specifically, Duke pointed out to Rosehthal that the "successors" clause 11 in the opening section of the Union's proposed contract would hinder the Company in selling its business should it desire to do so. In addition, he expressed disapproval of the Union 's proposed subcon- tracting provision (art. 26) 12 for the reason that it would limit or even prevent the Company's use of casual labor which it customarily employed. Neither clause was contained in the parties' last contract. Acting on Duke's advice, Rosenthal decided to withdraw his consent to those clauses, although Duke informed him that it was not his policy to retract prior agreements and that such action could ultimately reflect adversely on the Company 's good- faith bargaining. On October 28, Duke, accompanied by Rosenthal, met with Goffney and the employee committeemen for the first time After being introduced as the Company's principal spokesman , Duke requested to be briefed on the areas of agreement and disagreement resulting from the prior negotiations . Utilizing the Union's proposed contract, the parties reviewed all the clauses 13 with Duke making notes of the parties' positions . With respect to most of the items, Goffney and Rosenthal identified the clauses on which there was agreement and those which were still unresolved items. However, Goffney and Rosenthal were seriously at odds as to whether Rosenthal had previously accepted other items in the Union's proposed contract . Goffney argued in the affirmative while Rosenthal insisted that no agreement had been reached on them and Duke declared that, under those circumstances , he would treat those items as open questions The foregoing is in essence what transpired at this meeting. 4 The November 4 meeting At this meeting, Attorney Duke presented the Compa- 1 i The Union's proposed clause provided that "[t Ibis Agreement shall be binding not only upon the parties hereto but upon their successors and assigns " This provision was agreed to on August 31 12 Art 26, entitled "Subcontracting," provided, inter ala, as follows Section 26 1 The Employer agrees that no work or services presently performed or hereafter assigned to a bargaining unit covered hereby will be subcontracted or transferred to any outside company except as permitted by local agreement Also contained in this article was sec 262 which dealt with subcontracting store deliveries to a common or contract carrier These provisions were agreed to September 14 I S It is unnecessary to resolve a conflict in testimony whether, during the earlier negotiations between Goffney and Rosenthal , there was also a recapitulation of the items agreed upon and those which remained in dispute 14 This finding is based on Duke's testimony which was corroborated by Rosenthal While Goffney denied that Duke gave a reason for the ny's proposed contract to the Union. This document embodied most of the Union's proposed clauses which Rosenthal had accepted in the early negotiations but omitted the "successors," "subcontracting" and "30-day seniority" provisions, even though they had previously been agreed upon In addition, the Company's proposed contract excluded other unacceptable union provisions upon which no agreement had been reached or modified them as the Company's own proposals. After Goffney and the employee committee read the Company's proposed contract and compared it with the Union's, Goffney protested the omission of the successors , the subcontract- ing, and other provisions proposed by the Union, insisting that they had previously been accepted by Rosenthal. This led to a discussion of these clauses between Goffney and Duke. Duke conceded that Rosenthal had previously agreed to the successors clause. However, Duke explained that the clause was not acceptable because it could hinder the Company's sale of the business should it decide to take that action. He further stated that he would have given that advice to Rosenthal had he entered the negotiations sooner.14 With respect to the subcontracting provisions, (art. 26) which, like the successors clause, were not embodied in the parties' expired contract, Duke stated that the Company withdrew its prior consent because for years it had been relying heavily on casual help primarily for unloading boxcars and that the subcontracting clauses would restrict this employment practice.15 Although Goffney testified that Duke was reluctant or unwilling to discuss the Company's withdrawal of agreement on these and other assertedly accepted provisions , it appears to me from a careful consideration of all the negotiations that actually there was vigorous discussion of these clauses with Duke obstinately adhering to the Company's new position and with Goffney being equally inflexible in his position that the Company was obligated to accept those provi- sions There is another clause, section 12.2, which the Respon- dent admits Rosenthal had agreed to on September 8. However, it asserts that that clause was inadvertently omitted from the Company's proposed contract and that it did not learn of the omission until long after the event when a Board agent called Duke's attention to it . Section 12 2 is the part of article 12 entitled "Discharge or Suspension" and includes two other sections, 12.1 and 12.3, which deal extensively with the procedures to be followed in discharge and suspension cases It is undisputed that there was no consensus on these two sections when they withdrawal of agreement on the successors clause in response to his inquiry, I find it difficult to believe that Duke , an experienced labor negotiator, would not furnish this rather obvious justification for not agreeing to the clause in question 15 1 credit Rosenthal's testimony that this was the reason given at the bargaining table In his brief. General Counsel questions whether this reason was actually given, and the Company 's good faith at the bargaining table because of the existence in the Union's proposed contract of sec 33 find no basis for this contention That clause provided , among other things for the application of wages, hours, and working conditions under the contract to casual employees as well as to full-time and part-time employees However this item was left open at the September 14 meeting, after Rosenthal refused to agree to it Consistent with its position, the Company included in its proposal a sec 33 1 which omitted, among other things, the phrase "casual employees " FOOD SERVICE COMPANY 793 were discussed on September 8. Section 12.2 is a single sentence clause which provides for the issuance of "[r]eprimands, written warning notices and/or disciplinary action-no later than fourteen (14) days after the occur- rence." According to Rosenthal's testimony, section 12.2 was never mentioned in the negotiations after October 28, although section 12.1, which obviously was the most important provision in article 12, was discussed by the parties at great length. Goffney testified that he did inquire of Duke about the omission of section 12.2 and that Duke simply stated that another provision, step 4C in article 10, which also deals with the grievance procedure in discharge and suspension cases, reflected the Company's position. However, Goffney did not note the omission of section 12.2 on his copy of the Company's proposed contract, as he had done with respect to other omissions. Considering that section 12.2 is only a small part of article 12, I am inclined to believe that its omission from the Company's proposal was inadvertent and not called to Duke's attention during negotiations. In addition to the foregoing items, the General Counsel alleges that the Respondent on November 4 withdrew agreement on other provisions in the Union's contract proposal which Rosenthal had previously accepted, there- by betraying the Respondent's purpose to avoid conclud- ing a contract with the Union. As related below, the Respondent strenuously denies that Rosenthal had previ- ously agreed to those provisions. (a) Section 2.1(c)(1) and (2)i6 These provisions are part of the Union's proposed article 2 entitled "Union Shop and Dues" but were left out of the Company's proposed contract. Among other things, section 2.1 provides for a union shop or, if prohibited by state law, an agency shop. It is undisputed that those provisions were not agreed upon on August 31 when Goffney and Rosenthal discussed them, nor were they included in the parties' last contract. Goffney testified, however, that on August 31 Rosenthal agreed to subpara- graphs (1) and (2) of section 2.1 (c) (the agency-shop provision), although he refused to accept the other provisions in section 2.1(c) Indeed, Goffney also testified that while article 2 was under discussion Rosenthal was troubled by the legal aspects of the union-security clauses and requested an opportunity to consult legal counsel. Moreover, although Goffney's copy of the Union's 16 Sec 2 1(c) provides If during the life of this agreement State Law prohibits a Union Shop then the following Agency Clause shall apply to the extent permissible under the applicable State Law I Membership in the Union is not compulsory Employees have the right to join, not join, maintain, or drop their membership in the Union as they see fit Neither party shall exert any pressure on or discriminate against an employee as regards such matters 2 Membership in the Union is separate, apart and distinct from the assumption by one of his equal obligation to the extent that he receives equal benefits The Union is required under this Agreement to represent all of the employees in the bargaining unit fairly and equally without regard as to whether or not an employee is a member of the Union The terms of this Agreement have been made for all employees in the bargaining unit and not only for members in the Union and this Agreement has been executed by the Employer after it has satisfied itself proposal contains a notation in the margin that subpara- graphs (1) and (2) were approved on August 31, it also has a large question mark immediately below it. According to Duke, when Goffney asserted at the October 28 meeting that the two subparagraphs in question had been previous- ly agreed to, Rosenthal took issue with him. In view of the foregoing, including the fact that the heart of article 2 providing for a union shop or, in the alternative, an agency shop, was undeniably in dispute, I am not convinced that Rosenthal had really agreed to the subparagraphs in question.i7 (b) Sections 3 1, 3.2, and 3. 3 (stewards) Here, the dispute centers about the Union's demand in section 3.1 i8 that the Respondent recognize its right to designate more than one steward, although in the past the Union had only one steward to perform that function. Sections 3.2 and 3.3, which describe the authority of stewards, are involved only with respect to the use of plural terminology. There is no question concerning their sub- stance. Goffney testified that on August 31 Rosenthal agreed to all the sections in article 3.19 He further testified that on November 4 he objected to the provision in the Company's proposal, also designated 3.1, which provided for the appointment of only one steward; that he argued with Duke that he needed at least another steward on the night shift to handle problems there; and that Duke adhered to his position that the Company saw no necessity for more than one steward. Rosenthal, on the other hand, testified that he had previously agreed to all the sections of article 3, except 3.1, and that he insisted on one steward in all subsequent negotiations with Goffney even to the extent of protesting the Union's appointment of a named individual as steward on the night shift. Goffney, however, testified that Rosenthal's objection to the second steward was of a personal nature. Rosenthal's testimony concerning the absence of agreement on section 3.1 derives support from Duke's testimony that on October 28, there was no disagreement between the parties that that provision was an unresolved issue. All things being considered, I am not convinced that the question of the number of stewards had been unequivocal- ly resolved in the initial negotiations between Rosenthal and Goffney. that the Union is the choice of a majority of the employees in the bargaining unit A notation on Goffney's copy of the Union's proposal shows that another paragraph in "2" was "deleted by Union 10-28 " 11 In his brief, the General Counsel characterized these subparagraphs as "innocuous, and certainly not vital to the Union " id Sec 3 I provides that the "Employer recognizes the right of the Union to designate job stewards and alternates at the Employer's respective locations from the Employer's seniority list" It appears from Goffney's notes that the "s" in "locations" was deleted on November 4 Goffney testified that this was done at the insistence of Rosenthal who stated that the Company operated at only one location 19 In addition to the above sections , art 3 has two other sections, 3 4 and 3 5 Goffney's copy of the Union's proposed contract contains separate notations in the margin alongside all the sections , except 3 I , indicating they were approved on August 31 There is no marginal notation for 3 1 Agreement on sees 3 4 and 3 5 was withdrawn by the Respondent on February 9, 1972, under circumstances later discussed 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Section 5 1 (seniority) In section 5.1, the Union proposed that an employee should be entitled to seniority after the completion of 30 days of service. Since the parties have always been in accord that the number of days prescribed in the seniority clause and the number of days prescribed as a probationary period should be the same, the Union in section 2.5 of its proposed contract also provided for a 30-day probationary period. Both proposals were departures from the parties' last contract which provided for a 45-day period for seniority eligibility and probation. There is no question that on August 31 the parties first discussed the Union's section 2 5 and were unable to reach agreement, passing it for further future consideration Although Goffney testified that the obstacle to agreement on that clause was the limitation therein placed on the Company's use of false information in an employee's application to terminate the employee,20 Goffney conced- ed that there was no discussion with respect to the Union's proposed 30-day probationary period Later in the negotia- tions on August 31, Rosenthal admittedly accepted the Union's proposed section 5.1 with its 30-day seniority eligibility period. Controversy, however, arose on Novem- ber 4 when Duke submitted to Goffney the Company's proposal which provided in section 5.1 a 45-day seniority eligibility period and in section 2.5 the same probationary period. Goffney expressed his objection to the Respon- dent's failure to honor its prior agreement on section 5.1, while Duke attempted to justify the 45 days on the ground that he was only conforming the seniority clause to the 45- day probationary period the Company proposed in section 2 5 on which there admittedly had never been agreement. Goffney, on the other hand, argued the reverse, asserting that the Respondent was bound to adopt the 30-day probationary period in its section 2.5 by reason of the Respondent's prior acceptance of the 30-day seniority period in the Union's section 5 1 This issue remained unresolved at this bargaining session. (d) Section 11 2 (a) and (b) (picket line and struck goods) These provisions21 were embodied in article II (Protec- tion of Rights) of the Union's proposed contract. Goffney testified that article 11 in its entirety was agreed to on September 8 by Rosenthal after a "somewhat limited" consideration. Rosenthal, however, contradicted Goffney, 20 The Union's proposed sec 2 5 provided, in addition to a 30-day probationary period, that the "[e Imployer shall not use any information pertaining to an employee's application against him in any way after he has completed thirty (30) days of service unless the information pertains to a criminal conviction " 2i These provisions read, as follows Section 112 Picket Line and Struck Goods, Notwithstanding the provisions of Section I 1 1 by which the Union agrees to refrain from interference with or interruption of the Employer's business by the Union or its members, it shall not be a violation of this Agreement and it shall not be cause for discharge or disciplinary action if (a) An employee refuses to enter upon any property involved in a lawful primary labor dispute, or refuses to go through or work behind any lawful primary picket line, including the lawful primary picket line of the Union. party to this Agreement, and including lawful primary picket lines at the Employer's place of business (b) An employee refuses to perform any service which the Employer testifying that he only agreed to section II I (No Strike, No Lockout), and section 11.3 (Grievances) but not to section 11.2 (a) and (b) on which there was much discussion. He further testified that he told Goffney that he wanted to consult an attorney about the provisions in issue. Goffney testified that Rosenthal had expressed a desire to speak to an attorney but that he could not recall whether it was with respect to section 11.2. At the November 4 meeting, Goffney complained to Duke about the omission of section 11.2 (a) and (b) from the Company's proposed contract, contending that those provisions had previously been accepted. Duke denied Goffney's claim and affirmed the Company's rejection of those clauses. It appears to me that the "Picket Line and Struck Goods" clauses were of such a technical nature, that it is quite likely that an employer would seek legal advice, as was done here. Accordingly, I credit Rosenthal's testimony that he withheld agreement on section 11.2 (a) and (b) so that he could consult legal counsel, even though the parties' last contract had a picket line clause22 which manifestly was less complicated than the one in issue. (e) Sections 32.1 and 32.3 of article 32 (guarantees) There is a serious conflict in testimony whether the Union's proposed section 32.1,23 which provided for a 40- hour guaranteed workweek, had been agreed to before the Respondent submitted its proposed contract on November 4. Goffney gave the following account of the discussions respecting this clause: At the September 14 meeting, Rosenthal at first rejected the Union's proposed 40-hour guaranteed workweek and offered to continue the 43-hour workweek prescribed in the parties' last contract. Accord- ingly, Goffney noted on his copy that the item was passed for future consideration. 24 Thereafter, at the same meeting, Rosenthal changed his mind and accepted the clause and Goffney noted "o.k." on his copy of the Union's proposals and crossed out "pass." On October 28, Duke's first bargaining session, the subject of the 40-hour guaranteed workweek arose and Duke stated that it was not a previously agreed-upon item. As a result, Goffney deleted the "o k." on his copy of the Union's proposed contract and inserted a question mark and "open-pass 10-28." At the November 4 meeting, Goffney again raised the 40-hour undertakes to perform for another employer or person whose employees are on strike and which service, but for such strike, would be performed by the employees of the other employer or person on strike 22 Art VI, sec 7 of the expired contract provided No employee shall be required to cross a picket line which has been officially recognized by the Union Before the Union gives official recognition to any picket line it will discuss such action with the Employer 23 Sec 32 1 provided that "[a III full-time employees who report for work as required by their department schedule are guaranteed forty (40) hours in work days as shown on the bid, which shall be five (5) days or less" Goffney testified that at the September 14 meeting the word "consecutive" was inserted before "days " 21 The various notations on Goffney's copy of the Union's proposed contract add to the confusion regarding the status of sec 32 I at any particular time FOOD SERVICE COMPANY 795 question when Duke submitted the Company's proposal without any guaranteed workweek specified 25 In response, Duke repeated the Company's position that a 40-hour guaranteed workweek had never been agreed to. Duke was also not persuaded to change his mind by Goffney's argument that the Union's proposal was needed to satisfy the employees' complaints about long hours and other matters Either at this or another meeting, Duke expressed his inability to understand the Union's preference for a 40- hour guaranteed workweek to a 43-hour one. Rosenthal denied that he ever acceded to the Union's 40- hour proposal in his initial discussions with Goffney but testified that he offered a 43-hour week with a gradual reduction to 40 hours over the term of the contract. 26 It is undisputed that at the December 3 negotiations the Company accepted the 40-hour guaranteed workweek The foregoing evidence regarding discussions of the guaranteed workweek leaves me in doubt whether in the earlier negotiations Rosenthal had unequivocally accepted the Union's proposed section 32 1. Turning to section 32.3, which involves limitations on the guarantees set forth in the contract, it is not clear whether the General Counsel still relies on it as an item on which agreement was retracted. This section was listed by him at the hearing but was not mentioned in his brief. In any event, the Union's section 32 3, for all practical purposes, is the same as section 32.2 in the Company's proposal submitted at the November 4 meeting. The Company's proposal was accepted by the Union on November 8 with an inconsequential addition.27 It is clear from the evidence that the discussions at the November 4 bargaining session were not confined to the items upon which agreement had allegedly been reached. The record discloses that there actually was an exchange of views with respect to numerous other provisions in dispute, as there was during the earlier negotiations between Rosenthal and Goffney. The record further indicates that at the November 4 session neither party showed a discernible disposition to recede from its position or to make meaningful concessions. Moreover, consideration of several monetary matters was deferred until the Respon- dent presented its wage proposals. Since it obviously is not the Board's function to judge the relative merits of the parties' positions, it would serve no useful purpose to detail the discussions on specific subjects. 5 The November 8 meeting Duke presented the Company's so-called "Package Proposal" which, according to Goffney's testimony, Duke declared was negotiable. The package proposal consisted 15 Sec 32 I in the Company's proposal stated that "(a) All full-time employees who report to work as scheduled by the Company are guaranteed the number of hours agreed upon in this Agreement " Rosenthal testified that he wanted the number of guaranteed hours finally agreed upon to be inserted in another part of the contract , as was done in the expired contract 26 In the appendix of the last contract , provision was made for the reduction of the workweek from 46 to 43 hours over the 3-year contractual term 27 It also appears that the last sentence in the Union 's sec 32 3 was deleted at the Union 's request 28 Specifically, the Company desired that job classifications should remain the same , that rates would be "minimums", that hourly rates would be increased 10 cents every 6 months during the term of a consummated of 14 articles and sections in the Company's proposed contract, which had previously been rejected by the Union, and a statement of the Company's position with respect to job classifications, minimum rates, periodic wage increases, and a guaranteed workweek.28 The meeting was then devoted to a consideration of the disputed items in the package proposal, as well as their counterparts and other provisions in the Union's proposed contract In essence, these discussions amounted to nothing more than a restatement by the parties of prior arguments, explana- tions, and views and the Union's reiterated, but equally controverted, claim that several of its proposals had already been accepted by Rosenthal earlier in the negotia- tions. For this reason, Duke at times voiced impatience with the repetitive nature of the discussions. Although by the close of this meeting, which lasted 2 to 3 hours, the parties were finally able to come to agreement on three disputed items29 and the Respondent was willing to give the employees one additional holiday, Memorial Day,30 significant progress had really not been made because of the parties' stubborn adherence to their respective posi- tions. 6. December 3 meeting; the Respondent's final offer and its rejection Observing that the parties had already held quite a number of bargaining sessions, Duke announced that he was prepared to make a final proposal to the Union. The proposal included a wage offer and all the items in the Company's November 4 proposed contract, both agreed upon and still in dispute, and several concessions involving a 40-hour guaranteed workweek, an additional holiday and a 3-cent night shift differential. As for the wage offer, this consisted of an immediate increase of 5.5 percent across- the-board and a 10-cent hourly increase every 6 months during the term of the contract Duke commented that the 5.5 percent was the maximum allowable under phase II wage guidelines, as, indeed, it appears to have been, and that the Company preferred not allocating any part of this figure to fringe benefits. It appears that Goffney, however, indicated that fringe benefits could be increased if the Company and the Union applied for an exception from the Pay Board which Duke was evidently not inclined to do. Goffney was then given the opportunity to review the final proposal in caucus with his employee committee. After a while, when Goffney turned down Duke's suggestion to recess the meeting to the following day if he needed more time to study the final proposal, the parties resumed negotiations . Goffney raised questions about the Respon- dent's alleged withdrawal of agreement on several items in agreement. and that the guaranteed workweek should be 43 hours the first year. 42 hours the second year . and 41 hours the third year Although at one point in his testimony Goffney indicated that Duke offered at the November 8 bargaining session a 5 5-percent across-the-board wage increase permissible under the then prevailing wage-price guidelines. the record discloses that the offer was actually made at the December 3 meeting, as discussed infra 29 Sec 20 4 (paid rest periods ). sec 32 2 (work guarantees) and the Union's proposed 40-hour guaranteed workweek 30 The Union sought two additional holidays and improvements in other benefits, such as health and welfare insurance and vacations, which the Respondent was not inclined to grant . although it was willing to continue existing benefits prescribed in the parties ' last contract 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's proposed contract, as he had done at other sessions, and objected that the Respondent's final offer excluded acceptance of other provisions proposed by the Union However, Duke refused to engage in any further exchange of views for the reason that those matters had already been thoroughly considered and, in his opinion, more discussions would serve no useful purpose. Although Duke denied that he told Goffney that the Union could take the Company's final offer or leave it, as Goffney and Employee Committeeman Riley testified, I find that at least that was the plain implication of his remarks. The meeting ended on a strained note with Goffney undertak- ing to submit the final proposal to the employees and to notify the Respondent by December 10 of the Union's decision. Duke made it clear that a rejection of the proposal would remove it from the bargaining table. The next day, December 4, Goffney met with the employees to present the Company's final offer for their consideration and to report the events of the day before and the earlier negotiations. Among other things, he described the contents of the Respondent's final offer; reviewed the items which were still in dispute; outlined the items in the Union's proposals which President Rosenthal assertedly had accepted in earlier negotiations but which Attorney Duke rejected; explained the import of the Company's rejection of union proposals on their job security and conditions of employment; and informed the employees of the Company's wage offer and refusal to accede to the Union's proposed improvements in fringe benefits. Goffney also attributed the inability of the parties to conclude a contract to Duke's conduct at the bargaining table which Goffney stated was so different from the harmonious and cooperative attitude displayed by Rosen- thal before Duke's appearance in the negotiations. In much the same vein, Employee Committeeman Riley also addressed the employees. The net effect of the foregoing reports was to arouse the employees' resentment of the Company's treatment of the Union's demands and its refusal to agree to them, voicing doubt that the Company had any intention of concluding a contract with the Union. By a vote of 23 to 1 taken after the foregoing discussions, the employees rejected the Company's final proposal. A second ballot was also taken in which the employees, by the same margin, voted to strike. Although Goffney reminded them that the Union did not have strike sanction from the International, the employees, nevertheless, decid- ed to go on strike the following Monday, December 6. Immediately after the meeting, Goffney telephoned Rosenthal and advised him that the employees had rejected his final proposal and intended to go on strike December 6. Rosenthal expressed his regrets and disap- pointment at the employees' action and his appreciation that Goffney did his best 31 Of the five employees who remained at work, two employees, Clarence Williams and Leroy Zink, left their jobs 2 days later but returned after an absence of a few days It is not claimed, nor was evidence produced, that these employees everjoined the strike 32 The foregoing findings are based on Rosenthal's credible testimony Goffney testified that he could not clearly remember the details of the luncheon conversation except that Rosenthal mentioned the strikers' misconduct and his unwillingness to take the guilty strikers back to work 7. The strike; the Union's alleged unconditional application for reinstatement on December 29 On December 6, 35 of the 40 employees in the bargaining unit went out on strike and began picketing the Respon- dent's premises.31 In the ensuing period before December 29, Rosenthal complained to Goffney on several occasions about the picket line misconduct and threats to nonstriking office employees. Goffney stated that the Union did not condone such conduct and that he had difficulty control- ling the men. On one occasion, when Rosenthal and Goffney had lunch together at a motel, Goffney asked Rosenthal about the employment situation at the Respon- dent's establishment. Rosenthal answered that several strikers had already returned to work while others had been replaced. However, he stated that he had some openings and suggested that Goffney send the men to fill them. Goffney declined the offer unless all the strikers returned.32 Manifestly, Rosenthal was not inclined to discharge replacements to make room for the strikers. On another occasion, Rosenthal also spoke to the then recently designated head of the Union, Arthur W. Parker, its business manager, and its secretary-treasurer, concerning the alleged stabbing of a new employee by an unidentified striker. Parker, too, expressed his disapproval of such conduct and assured Rosenthal that he would look into the matter At the request of Goffney, he and Parker conferred with Rosenthal at his office on December 29. It is clear that the purpose of this meeting was to canvass the possibility of returning the strikers to their jobs and resuming negotia- tions. However, there is a conflict in testimony as to what actually occurred at this meeting. According to Parker, the following took place: At the outset, Parker indicated that he had recently assumed leadership of the Union and that he was interested in securing all the strikers' return to work and in reopening negotiations in an effort to come to some kind of an agreement. Rosenthal replied that he could not take the strikers back because he had replaced them. In response, Parker commented that unless the strikers were reinstated, it would be impossible to engage in negotiations because the picketing would be continued. Rosenthal, nevertheless, was not persuaded and adhered to his decision not to discharge the replacements in favor of the strikers. At about this point in the conversation, Rosenthal also stated that he had been aware even before the strike vote was taken that the employees contemplated striking; that he was fed up with them; and that he would never sign a contract. When Parker reminded him that the law required him to meet with the Union, Rosenthal retorted that he would meet with the Union but that he would never sign a contract because he had replaced all the strikers and would not hire them back. Rosenthal then brought up the subject of picket line However, he testified that Rosenthal did not ask him to send men to fill the available vacancies, although he (Goffney) requested Rosenthal to take all the employees back and consider resuming negotiations The complaint does not allege that the Union made an unconditional application for reinstatement of all employees on that date nor was this conversation mentioned in the pretrial affidavit Goffney gave a Board agent on February 17, 1972 Insofar as Goffney's testimony conflicts with Rosenthal's, I find that the latter's account is more reliable FOOD SERVICE COMPANY 797 misconduct, the stabbing of an employee, and threatening telephone'calls to office employees and their relatives. When Parker asked for the names of the strikers accused of these offenses, Rosenthal refused to identify them without first speaking to his lawyer. Parker thereupon suggested that since all the strikers did not engage in improper conduct Rosenthal should take the innocent ones back and submit to an impartial party or the grievance procedure the question of the alleged offenders' right to reinstatement. Rosenthal, however, was not persuaded to do so. In the course of the conversation, Rosenthal also alluded to a conversation he had had with a person who identified himself as Ray Shafer,33 an official of the Teamsters organization but not the local union here involved. Rosenthal quoted that individual as saying that all the strikers were to be reinstated or none would return to work. Parker disavowed any of the statements Shafer purportedly made to Rosenthal and insisted that, in conformity with the law, he (Parker) was making an unconditional offer to return all the strikers to work, leaving the question of the reinstatement rights of those guilty of misconduct to future determination . Rosenthal again stated that the strikers were replaced and that he would never take the strikers back or sign a contract. The conversation ended with Parker declaring that he would take appropriate legal measures. Goffney's account of this meeting was of the same general tenor However, he testified in effect, that Rosenthal indicated that he would not reinstate under any circumstances the strikers guilty of misconduct whom he declined to identify as Parker requested, that he had no openings for the other strikers because they had been replaced; and that he had no desire to terminate the replacements in favor of the strikers. Goffney further testified that Rosenthal stated that he had no intention of signing a contract with the Union because of the strike misconduct although he would meet with that organiza- tion. According to Rosenthal, Parker told him that he wanted to get all the men back to work. Rosenthal further testified, in substance , that he answered that he only had one or two openings which were available to any striker who wanted his job back. Apparently, this offer was not acceptable. Rosenthal also denied that the term "unconditional" was used in connection with Parker's offer to have the strikers returned to work. Concerning the resumption of negotia- tions, Rosenthal testified that Parker asked whether the Union would be able to obtain a contract; that he (Rosenthal) stated that he did not know; and that in reply to Parker's further inquiry whether he would negotiate with the Union, he gave an affirmative answer. Although both Parker and Goffney testified that Parker explicitly noted that his application for reinstatement on behalf of all the strikers was unconditional, as the law required, Goffney on January 6, 1972, filed an unfair labor practice charge against the Respondent, alleging only an unlawful refusal to bargain. It was not until an amended charge was filed on February 24, 1972, that the Union alleged that the Respondent on or about December 29 discriminated against the strikers by refusing to reinstate them after unconditional application . Moreover, there is nothing in Goffney's pretrial affidavit given to a Board agent on February 17, 1972, referring to Parker's alleged December 29 unconditional offer to return the strikers to work or Rosenthal's asserted declaration not to bargain in good faith. Additionally, the events that followed Decem- ber 29 indicate that the Union was not disposed to approve the return of any striker to work unless all were given their jobs back. In view of the foregoing, I find Rosenthal's testimony more reliable than that given by Parker and Goffney and credit it . I therefore find that Parker's reinstatement application on December 29 was not unconditional but rather was contingent upon all strikers being reinstated. I further find that Rosenthal did not inform Parker of his intention not to engage in good -faith bargaining with the Union . However, I have no reason to disbelieve the testimony that Rosenthal refused to identify the striking employees who were allegedly involved in strike miscon- duct. It is noted that Duke also subsequently declined to furnish such information , despite the Union 's repeated requests, until his March 8, 1972, letter to Parker, later discussed. 8. Reopening of negotiations on February 2, 1972; the Union's unconditional application for reinstatement of strikers Goffney arranged for this bargaining session with Attorney Duke and Rosenthal . This was the first meeting Parker attended as the Union's chief spokesman. Also present were Goffney and two employee committeemen. The meeting started off with renewal of the longstanding controversy between the parties whether the Company had withdrawn agreement on previously accepted items in the Union's proposed contract. Duke made the observation that it appeared that the Union had scheduled the meeting only to build up a record for the unfair labor practice charge the Union had filed on January 6, 1972. This drew Parker's response that they were there to negotiate a contract and that the charge would resolve itself. He then suggested that the parties proceed with that business and that Duke bring him up to date on the negotiations . At first Duke declined Parker's briefing request , asserting that it would be a waste of time since Parker could very well secure this- information from Goffney . However, after Goffney pointed out to Duke that he had previously extended this courtesy to him when he first entered the negotiations , Duke yielded and reviewed the provisions in the Company's proposed contract. Then followed discus- sions between Parker and Duke with respect to various items. In the course of the meeting, Parker brought up the subject of his offer to return the strikers to work which he assertedly had made to Rosenthal on December 29. Duke 33 Ray Shafer is the president of both Teamsters Local Union 657, a sister local of the Union herein , and the Joint Council of Teamsters 58, which is comprised of four local unions in South Texas, including the Union Since the Respondent has failed to establish that this individual was an agent or otherwise authorized to act on behalf of the Union , I do not rely on any testimony relating to conversations between the Respondent and that person in making any of my findings 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that he was unaware of such an offer and turned to Rosenthal and questioned him about it. Rosenthal ac- knowledged that he had had a meeting with Parker and Goffney but denied that Parker had made such an unconditional offer. Parker thereupon gave his version of the December 29 meeting. He related that he told Rosenthal that he wanted all the strikers returned to work; that Rosenthal replied that he would never take them back because they had already been replaced; and that Rosenthal referred to the strikers' misconduct and declared that he would never sign a contract with the Union. Rosenthal disagreed with Parker's account, but it appears that he did not furnish his own. Probably at this point, Duke cautioned Rosenthal not to talk to the Union representatives without his consent. Apparently to avoid any further problems, Parker stated that he was now making another unconditional offer for the reinstatement of the strikers. However, he indicated, though not in these words, that he was not waiving the strikers' rights under the December 29 application. He also proposed that the Respondent should recall those strikers whose strike conduct was not being questioned, leaving the reinstatement rights of those charged with misconduct to be determined in an arbitration proceeding. Duke's response was only that all the strikers had been replaced and that no vacancies were available at that time.34 9. The Respondent's prescribed conditions for strikers' reemployment; the Union's response and request for information The next day, February 3, Duke sent Parker a letter in which he acknowledged acceptance of the, Union's uncon- ditional offer of the strikers' return to work. Noting that these strikers had been permanently replaced and that there were no job openings for them to fill, Duke set forth the conditions for keeping the Company informed of their continued availability for employment. Thus, the letter stated. . . so that the striking employees may be notified of vacancies which may occur in the future, all of the striking employees should report to the office of the Company no later than February 14, 1972, and either accomplish a new application form or examine their old application form to assure that the information contained therein is accurate. Upon the completion of this task, the application will remain current for a period of thirty (30) calendar days during which period if vacancies occur, those employees eligible to return to work will be notified. If at the expiration of thirty (30) calendar days the striker has not been notified to return to work, he will have ten (10) calendar days thereafter during which to either notify the Company in writing or to personally come to the office of the Company and indicate that he desires to maintain his application in a current status If the striking employee does timely notify the Company that he desires that his application remain current, his current status will then be renewed 34 The foregoing findings concerning the February 2 meeting are based on the combined testimony of Parker, Goffney, Duke, and Rosenthal which appears to me to reflect what probably transpired at that meeting, although for an additional thirty (30) day period and the procedure discussed above will then be repeated. If you have any questions concerning the matters discussed herein, please advise. In addition, we will appreciate that all communication regarding this matter be directed to the writer and not to Food Service Company, Inc. In response, Parker sent Duke a letter dated February 7, 1972. Without commenting on the conditions for reem- ployment prescribed in Duke's letter, Parker reaffirmed his rejected reinstatement offer made to Rosenthal "the week of December 29, 1971," which he renewed at the February 2, 1972, meeting. For this reason, Parker wrote, "[w]e feel that all employees that were hired prior to this time should be removed from the Company's payroll and replaced by the striking employees." Concerning the question of the reinstatement rights of strikers accused of misconduct, the letter continued: Also, your client stated that there were some employees whom he would not name, that he would not return to work because of certain activities that took place during the first days of the strike. I stated to him and to you, and will re-state again, that we can not and will not arbitrarily accept statements from you and your client as actual facts. We are willing to discuss this matter further with you upon receiving the names of the employees that you are not willing to take back because of what you termed, "poor activities on the picket line," and if it is necessary we are willing to agree with you to call in a third party to help decide whether or not you have just cause to refuse to allow the said employees to return. On February 10, 1972, Duke sent his reply in which he reiterated the Company's position that at no time before February 2 did any union representative make "an unqualified offer on behalf of the striking employees to return such employees to their jobs at the Company," and called Parker's attention to the procedure set forth in Duke's February 3 letter "whereby those employees still on strike might be returned to their jobs." With respect to Parker's request for the names of strikers the Company was unwilling to reinstate because of strike misconduct, the letter indicated that the request was premature as the Company had no vacancies "and no real purpose would be served at this date in discussing the status of one or more strikers." In his answering letter of February 23 to Duke, Parker noted the continuing nature of the Union's unconditional reinstatement offer since it was first made during the week of December 29. In addition, Parker stated that the Union was requesting the strikers to send in "their individual unconditional continuing" reinstatement applications with their addresses and phone numbers "for the express purpose of furnishing you the exact information you will need to recall them if a work opportunity arises in the future." However, Parker protested the imposition of the conditions on the employees' reinstatement rights con- tained in Duke's February 3 letter, stating: not necessarily in the order here presented I an not persuaded that Duke indicated at this meeting that he would propose the terms under which the strikers would be considered for reinstatement FOOD SERVICE COMPANY We see no legitimate and substantial business justifica- tion for your attempt to toll their legal right to reinstatement at stated 30-day periods or for needless trips to Company office or needless correspondence on their part. On February 24, 1972, the Union filed an amended unfair labor practice charge, alleging as unlawful the imposition of those conditions. In this letter, Parker also requested access to company records so as to secure specified information needed "to carry out our function as an informed collective-bargaining representative of these employees." 35 Moreover, the Union renewed its prior request for the names of the employees whom the Company was not willing to reinstate because of strike misconduct .. . together with a statement of what the alleged strike misconduct consists of and the date it occurred. Stating an immaterial conclusion to the effect that there are not job opportunities at this time will not answer this request. We want to investigate and evaluate the alleged misconduct and to bargain with you on an informed basis concerning the return to work of these particular individuals. The real purpose that will be served in discussing their status is their return to eligibility for reemployment in the future, to say nothing of the fact that they may already be eligible, depending upon the answers to the requests above and the accuracy of your information concern- ing their misconduct. On February 28, 1972, Duke wrote to Parker, again expressing his intention not to comply with the Union's request for the names of the strikers guilty of strike misconduct or for information concerning the nature of their acts "until such time as it becomes an actual grievance and/or dispute." As for the Union's requested access to records, Duke offered to permit one representa- tive "to view the relevant records at the location of the Company with the agreed upon time and date of such a meeting" to be cleared through him. 10. The February 9 meeting During the foregoing exchange of correspondence another bargaining meeting was held on February 9. Willard Manuel, the Union's president, attended this session with Goffney and the two employee committee- men. Manuel informed Duke and Rosenthal that Parker was unable to be there and that he was serving as the Union's spokesman determined to resolve the matters in dispute. Although items were then discussed with agree- ment being reached on one, no significant progress was 35 Specifically, the Union requested I Access to the payroll records which show the names, numbers and classifications of employees on the payrolls of the Employer from December 27, 1971 through December 31, 1971 and their dates of hire for purposes of examining and/or copying such records 2 access to all payroll records since the period December 27 through December 31, 1971 to date which show the names, numbers and classifications of employees on the payroll and their date of hire for purposes of examining and/or copying them 3 Without waiving our request for the foregoing, we further request in the event you decline to produce the actual records that you furnish us with a tabulation showing the number of employees within 799 made to bring the parties closer to a contract. Indeed, the contrary appears to be the case since Duke withdrew previous agreement on three provisions in the Company's proposed contract-sections 3.4 and 3.5, 36 which limited the Union's liability for unauthorized acts of the steward, and section 33.9, which made wage increases retroactive to September 18, 1971 When asked by Manuel for the reasons, Duke and Rosenthal explained that the Company had received reports that the shop steward, Riley, who was also an employee committeeman, had misconducted himself on the picket line37 and that, for this reason they did not think that the Union should have the benefit of sections 3.4 and 3 5 to relieve it of liability. As for the withdrawal of agreement on section 33.9, which was section 33.11 in the Union's proposal, Duke stated that he understood that pay increases retroactive to September 18, 1971, were not permissible under phase II of the prevailing wage-price controls,38 and secondly, the Company had incurred a great expense as a result of the strike and could not afford it. 11. The February 16 meeting ; the Union's nonacceptance of the Company 's job offer of four vacancies The day before this meeting, Duke telephoned Goffney and informed him that the Company had openings for two drivers and two warehousemen which it wanted to fill with striking employees. Duke also stated that he had not yet heard from the strikers with respect to maintaining their reinstatement applications current as required in his February 3 letter to Parker. Goffney's reply was that he was unfamiliar with the contents of that letter; that he would speak to Parker about the job offer; and that he would call Duke back. Later in the day, Goffney called Duke and advised him that he was unable to contact Parker or`to see the February 3 letter and suggested that they talk about the matter further at the bargaining session scheduled for the next day. On February 16, Duke and Rosenthal met with Goffney and the employee committeemen. Parker was not present. Duke repeated his request for four men to fill the vacancies. Goffney replied that he still had not been able to discuss the job offer or the February 3 letter with Parker. However, Goffney asked Duke whether he could take back more than four, adding that the Union wanted all the strikers returned. Goffney also stated something to the effect that the strikers would not come back unless they could work under a contract. the bargaining unit by classification on the Company's payroll from December 27, 1971 to date with the dates of hire of each such employee We request that if this type of a breakdown of the employees that are hired is furnished that it contain an attestation that it is taken from the actual payroll records of the Company 36 These are the same clauses in the Company's and Union's proposals except that the former deals with one designated steward while the latter speaks of that office in the plural 37 Riley was nevertheless reinstated by the Respondent on April 4, 1972 31 However, Duke testified that he believed that at that time the parties could have applied at the Pay Board for an exception to allow retroactivity to November 14, 1971 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties then proceeded to discuss various contract proposals and reached agreement on two items.39 Toward the close of the meeting, Ted Garcia, the Union's vice president, appeared. In his presence, Duke again asked Goffney to send the men to fill the four vacancies. Goffney gave the same negative reply he had previously given and again made the observation that the men would not return without a contract. Garcia also interjected that either all the men return or none would and offered all the employees back to work. Duke refused the offer for the stated reason that the Company did not desire to terminate the permanent replacements.40 On this note the meeting ended. As Goffney did not accept the Company'sjob offer, the Company proceeded to fill the vacancies with new employees. 12 Individual applications to return to work; the Union's further request for information; termination of picketing On March 1, Duke received a telegram from Parker in which he assured the Company that the Union's applica- tion for reinstatement of strikers was unconditional and continuing and requested the Company to disregard any contrary statements. The telegram also indicated that a detailed letter would follow On March 2, Duke sent a reply letter. In it he stated that he interpreted the telegram as an unconditional offer to return to work made on behalf of the striking employees "at least as of March 1, 1972." In order that the striking employees may be notified of future vacancies, the letter required them to report to the Company no later than March 14 "and either accomplish a new application form or examine their old application form to assure that the information contained therein is accurate." Then followed the same detailed conditions for maintaining their application current as those set forth in Duke's February 3 letter quoted above. On March 3, Parker mailed directly to the Company 16 separate unconditional applications for reinstatement signed by each employee, which furnished the employee's address and telephone number. Each application was in the form of a letter to the Company, dated February 11, 1972 and began with the statement "My Union, General Drivers Local Union No 968, has made an unconditional offer on behalf of all striking employees on or about February 2, 1972." In a letter dated March 6 sent to Duke, Parker reviewed the events involving his claimed prior unconditional applications for reinstatement and explicitly disavowed any alleged statements by Goffney, Garcia, or Shafer which might indicate that the Union's offer of reinstate- ment was conditioned on all the strikers being recalled at one time. In addition, Parker reaffirmed his prior request for information contained in his February 23 letter concerning the employees accused of misconduct. He asserted that such information was "material not only for the purpose of bargaining on a return to employment of 39 They were art 25 (Separability and Savings) with modifications, and sec 32 1(b) in the Company's proposed contract (Guarantees, sec 32 l(c) in the Union's proposed contract) 40 The foregoing findings are based on the combined testimony of Duke. Rosenthal , and Goffney strikers, but so that we can ascertain the actual number of job offers available at any given time." Finally, Parker commented that Duke's February 28 letter did not answer his February 23 request for data in paragraphs 1, 2, and 3, or indicate whether Duke would give him access to the requested data in order to "both examine and/or copy such information" as Parker deemed material. Parker also pointed out that he wanted "access for two people with an arrangement made whereby we can either photocopy the material we deem relevant at the place of inspection or have them reproduced at our office or at some commercial shop." In Duke's responding letter of March 8, he questioned the accuracy of Parker's account of various events. Concerning information regarding the strikers ineligible for employment because of misconduct, Duke wrote that the Company has concluded that only one employee, Fred Simon, fell into this category due to his involvement in a knifing incident of which Parker was aware. As for the Union's access to Company records, the letter stated: . . we have already indicated to you that you may examine any relevant Company record that is necessary to the fulfilling of your bargaining obligation on behalf of the employees at Food Service Company, Inc. who are in the appropriate bargaining unit. The Company has available reproduction facilities which may be utilized at your expense. However, you will be allowed to examine and/or copy only such documents which the Company, and not the Union, concludes are relevant and/or necessary to your obligation. At such time as you desire access to such documents, please notify me and both a date and time will be established which is convenient to the parties. On March 14, Parker wrote to Duke, denying personal knowledge of Fred Simon's involvement in a knifing incident and repeated his request "for dates, place and other salient details of the alleged knifing."41 He also asked for clarification of the records which would be available to the Union for examination. The exchange of correspondence finally came to an end in Duke's reply to Parker's March 14 letter in which he wrote: ... once again and in response to your request we are offering to you the opportunity to come out to the Company and review any document which is relevant and/or necessary to your negotiations on behalf of the employees in the appropriate bargaining unit. If we have any differences of opinion as to what is or is not relevant and/or necessary, such matter will be raised at that time and discussed. It would serve no useful purpose at the present time to attempt to delineate any and all matters which may or may not be relevant to your obligation on behalf of the employees in the appropriate bargaining unit. The record does not indicate whether the Union availed itself of the opportunity to examine company records. On or about March 20, the Union removed the picket line and 4i Parker also reaffirmed the authority of any business agent of the Union to conduct negotiations and enter into binding agreements Apparently. Duke had previously raised this question in a conversation with Parker FOOD SERVICE COMPANY the strike ended after the Company notified it that it needed two employees who thereupon returned to work. 13. The March 7 meeting This was a short meeting attended by Goffney and the employee committeemen. Parker was not present. At the beginning of the meeting, Duke announced that he had received a letter from Parker to the effect that Parker was the only spokesman for the Union. For this reason, Duke continued, the Company was in the peculiar position of now knowing with whom to deal and was obliged to question Goffney's authority. Goffney disagreed with Duke's interpretation of Parker's letter, insisting that he (Goffney) had the authority to negotiate. Duke, neverthe- less, stated that it would be a waste of time to negotiate before this matter was cleared up. At one point, Goffney informed Duke that Norman Goldstein, an organizer for the Southern Conference of Teamsters, was going to participate in the negotiations but that he was engaged in another meeting in the building and would appear shortly. After waiting a little while without Goldstein showing up, Duke suggested that they adjourn since Goldstein's presence would not solve the basic problem of bargaining authority until Parker clanfied the situation The meeting thereupon closed. As indicated above, Parker in his March 14 letter to Duke affirmed Goffney's authority. However, the March 7 meeting turned out to be the last one Goffney attended. This was also the last one in which Rosenthal participated. 14. The March 14 meeting Parker attended this meeting with Norman Goldstein, an organizer for the Teamsters Southern Conference, to assist in the negotiations as spokesman for the Union.42 Duke explained that Rosenthal could not be present because of another engagement and suggested that they proceed with the negotiations without him. After advising that Goffney was no longer involved in the negotiations, Goldstein declared that his objective was to get the parties together on a contract. Duke assured him that he was similarly interested in concluding an agreement. Thereupon, the parties reviewed the disputed items in the Company's proposed contract, and succeeded in coming to agreement on some 12 provisions.43 In addition, the Union withdrew several of its own demands, including the successors and subcontracting clauses. It appears that most of the concessions were made by the Union. In the course of the negotiations, Goldstein inquired about the existing insur- ance program. Duke answered that he really did not know anything about it but assumed that it was the same program the Company had always had. Indicating that he had information to the contrary, Goldstein asked Duke to check into the matter and, if it was a different program, to bring to the next meeting the insurance booklet and a 12 The employee committee was also present as These were sees 2 5, 5 1, 10 1, 19, 21 1, 32 1(a), 33 2, 33 10, 34 2, 34 3, and 40 Both parties agreed to withdraw 33 11 44 There is a conflict in testimony whether at this point Goldstein had already accepted the Company's terms and Duke voluntarily left to telephone his client, as Parker and Goldstein testified, or whether Duke, at the insistence of Goldstein, left to call his client to confirm his authority to 801 statement of the rates paid under the policy. Goldstein also requested Duke to secure for him information concerning the number of employees in the Company's employ; those still on stnke; those who were returning strikers; and the number of replacements. Near the end of the meeting, Goldstein reminded Duke that he was anxious for a contract and urged him to discuss the disputed issues with the Company in the hope that a contract could be consummated. 15. The March 20 meeting ; the Respondent's demand for proof of the Union's majonty status, as a condition of agreement This was the last bargaining session and was attended by Duke, Goldstein, Parker, and the employee committee. After explaining Rosenthal's inability to be present for business reasons, Duke reported that the Company would not change its position on the items on which the parties were still apart. It appears that there were only four or five items which were really important since, according to Duke, the other open provisions would resolve themselves if the critical ones were disposed of. At about this time, Duke furnished the Union with the previously requested insurance booklet which described the insurance program the Company admittedly had unilaterally instituted about the middle of December 1971, shortly after the stnke began. He also supplied information concerning company and employee contributions for such coverage. However, Duke stated that he had forgotten to secure the employee information which the Union had also requested. The parties then engaged in further discussions of the disputed items which proved to be unproductive. This lack of progress evoked Goldstein's charge that the Company was not bargaining in good faith and questioned whether Duke even had the authority to sign a contract in the event the Union accepted the Company's terms. Duke assured Goldstein that he possessed the authonty to enter into and sign a binding contract, and would do so, if the Union agreed to the Company's proposals still in dispute. Duke thereupon asked for a recess to call Rosenthal and inform him about this development44 and at the same time to secure the employee information for the Union. In this telephone conversation, Rosenthal approved the deal with an inconsequential modification of the Company's wage proposal and supplied Duke with the requested employee data. According to Duke, when he received the employee figures and was advised by Rosenthal that at the time the stnke began there were about 12 to 15 employees who had not been on checkoff, he concluded, and so told Rosenthal, that there was a serious question whether the Company would be in violation of the Act if it executed an agreement with the Union unless the Union demonstrated that it still represented a majonty of the employees. It was therefore sign a contract if the Union agreed to the Company' s terms, as Duke testified This conflict need not be resolved as it is not significant in determining the critical issue whether the Respondent had a valid basis for questioning the Union's majority status and requiring such proof before proceeding with the negotiations No contention is made that a final agreement had actually been made 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decided to ask the Union for such proof as a condition of consummating a contract. Duke thereupon returned to the meeting and furnished the Union representatives with the employee data he had received from Rosenthal . He informed them that there were 41 unit employees on the Company's payroll before the strike began ; 39 went out on strike; 11 returned to work within 2 weeks; and 26 replacements were hired beginning 2 days after the inception of the strike . He also apprised the Umon representatives of the wage modifica- tion and the new condition that the Union prove its majority status before the Company would sign an agreement. The wage modification was acceptable to the Union but, as expected, the condition of proof of majority did not meet with a favorable response from the Union particularly since the Union's representative status had never before been challenged. To justify raising the question of the Union's majority status, Duke alluded to the employee figures mentioned above which he claimed had just come to his attention and noted that it would be a violation of the Act to conclude an agreement with a minority union. Indicating that the Union was not certain what action to take, Goldstein requested permission to post a notice of an employee meeting should the Union decide to submit the Company's proposition to the employees. Duke granted permission and stated that the Union had until March 27 to act on the Company's proposition and that, if he did not hear from the Union by that time, he would consider the offer rejected. On that note the meeting ended Thereafter, on March 24, complaint issued and the Union neither submitted the Company's offer to the employees nor notified the Company of its rejection. 16. The Respondent's unilateral change of its employees' insurance program In accordance with the terms of the parties' last contract, the Respondent provided its employees and dependents with group health insurance by contributing a fixed sum to the Teamsters health and welfare fund It is undisputed that about December 15, 1971, shortly after the strike began, the Respondent discontinued this coverage and extended to unit employees the insurance program under- written by The Great West Life Assurance Company, which was previously available only to nonunit employees. This change was admittedly made without notifying or discussing it with the Union. Unlike coverage under the Teamsters health and welfare fund, which was without cost to the employees, the Great West coverage entails a contribution by the employees However, it is virtually impossible to evaluate the relative benefits under each plan, especially in view of the employee cost factor. B Analysis-Concluding Findings 1. Refusal to bargain The General Counsel contends that during the prestrike period from October 28 to December 3, and thereafter with the resumption of negotiations on February 2, 1972, the Respondent, in violation of Section 8(a)(5) and ( 1) of the Act, failed to bargain in good faith in a genuine effort to reach agreement with the Union . The Respondent, of course, denies that it breached its statutory obligation. For the reasons set forth below, I find that, while the record does not convincingly establish overall bad-faith bargain- ing on the Respondent's part, it does establish that the Respondent violated its bargaining obligation on March 20, 1972, when it conditioned further negotiations on the Union's proof of majority status. The prestrike and subsequent periods will be separately considered below. Section 8(a)(5) of the Act requires an employer to recognize and bargain collectively with the statutory representative of his employees with respect to their terms and conditions of employment. Section 8 (d) defines the bargaining obligation as requiring the parties , inter aha, "to meet at reasonable times and confer in good faith [regarding such matters ] . . . or the negotiation of an agreement . . . and the execution of a written contract incorporating any agreement reached if requested by either party.. . ." Although this obligation does not "compel either party to agree to a proposal or require the making of a concession," it does contemplate , as the Board and the courts have uniformly held, a willingness to enter the discussions "with an open mind and purpose to reach an agreement consistent with the respective rights of the parties."45 Simply entering "upon a sterile discussion of union management differences,"46 is not sufficient . Essen- tially then, the "ultimate issue whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence."47 Judged by these principles, I find insufficient evidence in the record that the Respondent bargained in bad faith during the prestrike October 28-December 3 period. As discussed above , negotiations for a new contract to supersede the one that was due to expire on September 18, 1971, were instituted on August 31 against a background of a 15-year history of harmonious labor relations between the Respondent and the Union . Indeed, there is no question that the same cooperative spirit continued during the first five bargaining sessions through September 28 when the Respondent's president , Rosenthal , served as its spokesman. Although these negotiations were concededly conducted in good faith by Rosenthal and some progress was made in achieving agreement on a substantial number of the Union's proposals , there were serious differences with respect to a larger number of the Union's proposals which evidently prompted Rosenthal to seek legal assist- ance. From an examination of the Union's proposed contract, by far more comprehensive than the parties' last 45 Mature Transport Company v N L R B, 198 F 2d 735. 739 (C A 5), see 46 N L R B v American National Insurance Co, 343 U S 395, 402 also N L R B v Johnson Manufacturing Company of Lubbock, 458 F 2d 453. 47 N L R B v Reed & Prince Manufacturing Company, 205 F 2d 131, decided April 6, 1972 (C A 5), N L R B v Darlington Veneer Company, 139-140 (C A I), cert denied 346 U S 887 Inc, 236 F 2d 85, 88-89 (C A 4) FOOD SERVICE COMPANY 803 contract, and containing new and technical clauses dealing with such subjects as union security, agency shop, employee observance of picket lmes48 and struck goods, successor-employer's responsibility, and subcontracting, it is understandable why Rosenthal retained counsel to assist the Respondent in the negotiations. Although the General Counsel does not contend that Attorney Duke was brought into the negotiations with the calculated purpose of undermining them, he does contend that, when Duke assumed Rosenthal's function as the Respondent's chief spokesman, an entirely different approach to the bargain- ing table appeared-one which had as its objective the avoidance of agreement rather than achieving it. In support of this contention, the General Counsel relies principally upon Duke's alleged withdrawal of agreement on several items previously accepted by Rosenthal. Without repeating the details, the Respondent admits that, on advice of counsel, it withdrew agreement on the successors and subcontracting provisions. However, Duke explained at the bargaining table that it was the Respon- dent's belief that the successors clause could hinder the Company's sale of its business should it decide to take that action, and that the subcontracting provision (art. 26) could restrict the Company's existing practice of utilizing casual help in its operations. According to Duke, he would have furnished this advice at the inception of negotiations had he then been retained. It is well settled that the "withdrawal by the employer of contract proposals, tentatively agreed to by both the employer and the union in earlier bargaining sessions, without good cause, is evidence of a lack of good faith bargaining by the employer in violation of Section 8(a)(5) of the Act.. .." 49 As the Respondent's explanation for retracting prior consent to the two provisions in question appears to me to be plausible, I find that sufficient good cause was shown for the Respondent's action and that therefore an inference of bad-faith bargaining is not warranted. With respect to section 12.2 (reprimands) of the Union's proposed contract, which the Respondent concedes was also previously agreed to by Rosenthal, I have heretofore credited the Respondent's testimony that it inadvertently omitted that provision from its proposed contract without any intention of withdrawing prior agreement. In these circumstances, I am unable to find this omission as evidence of bad-faith bargaining. Finally, there are other provisions discussed above, upon which the General Counsel also relies as agreed-upon items subsequently rejected by Duke. However, I have found that the evidence is not so clear to establish that Rosenthal had unequivocal- ly committed himself to their acceptance or that the issues created by these clauses were really resolved in the discussions between Rosenthal and Union Business Repre- sentative Goffney. Accordingly, the Respondent's refusal to acknowledge agreement on those items cannot furnish a reliable basis for a finding of bad-faith bargaining. In sum, I find unsubstantiated the General Counsel's contention that the Respondent, in disregard of its statutory duty, frustrated bargaining by withdrawing prior agreements.50 The General, Counsel further urges that Duke's submis- sion of the Respondent's final proposal at the December 3 meeting on a take-it-or-leave-it basis actually betrayed a determination to avoid sincere bargaining to agreement. This offer, which included, among other things, items in the Company's proposed contract, both agreed upon and still in dispute, a wage proposal and other economic benefits, was presented after nine bargaining sessions in which there was a thorough exchange of views with neither party manifesting a discernible disposition to recede from its position or to make meaningful concessions. From my appraisal of the evidence pertaining to these negotiations, I am not persuaded that the Respondent's conduct failed to comport with the standards of good-faith bargaining or that the Respondent utilized the final proposal as a tactic to avoid agreement. Apart from the fact that the offer did not preclude resumption of negotiations after its rejection by the employees, as subsequent events demonstrated, the Supreme Court has observed that "the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position."51 At most, I find that the Respondent's conduct amounted to no more than hard bargaining which the Act does not condemn. The fact that the parties were unable to reach agreement before the Union called the strike could no more be attributed to the Respondent's inflexibility than to the Union's. Accordingly, I find that the evidence does not establish that the Respondent bargained in bad faith during the prestrike period of October 28 to December 3.52 Turning to the negotiations which resumed on February 2, I find that the record, too, will not support a finding that the Respondent failed to fulfill its bargaining obligation before the March 20 meeting. As shown above, the Respondent willingly agreed to a resumption of negotia- tions on February 2, while the strike and picketing were still in progress. It appears that in the ensuing discussions before March 20 both parties made a genuine effort to reach agreement and succeeded in disposing of all but four or five disputed items regarded as important and a few minor ones.which would fall if the others were settled. It is true that at the February 9 session the Respondent withdrew agreement on three provisions (secs. 3.4, 3.5, and 33.9) which Duke himself had approved before the strike. However, as found above, the Respondent furnished a reasonably justifiable explanation for this action. Thus, Duke told the union representatives that the Company had received reports that Shop Steward Riley had misconduct- ed himself on the picket line 53 and that the Company did not believe that the Union should have the benefit of 48 The expiring contract also had a picket line clause which , however, was simply worded 49 American Seating Company of Mississippi v N L R B, 424 F 2d 106, 108 (C A 5), enfg 176 NLRB 850, N L R B v Thompson, Inc, 449 F 2d 1333, 1335 (C A 5), enfg 184 NLRB No 14 50 It is noted that the Union on November 4 withdrew step 4C in art X (Disputes or Grievances) from its proposed contract , which Rosenthal had previously accepted , for the asserted reason that it was in conflict with another provision in its contract 51 N L R B v American National Insurance Co, 343 US 395, 404 52 For this reason, as I later find, the strike which was called on December 6, was an economic one and not in protest to the Respondent's unfair labor practices, as the General Counsel argues 53 The fact that Riley was ultimately reinstated to his job on April 4, 1972, does not necessarily refute the Respondent's reliance on the report 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sections 3.4 and 3 5 which limited the Union's liability for the unauthorized acts of the steward. As for section 33.9, which provided for the payment of wage increases retroactive to September 18, 1971, Duke explained that the clause was in violation of phase II wage-price guidelines, and secondly, that the strike had caused the Company to incur a great expense. The plausible nature of the reasons for the withdrawal of agreement on this item, in the context of the negotiations that took place before March 20, I find militates against an inference of bad-faith bargaining. Notwithstanding the foregoing , I find that the Respon- dent, nevertheless, unlawfully refused to proceed with the negotiations at the March 20 session unless the Union proved its majority status. As discussed above, this was the first time during the entire course of negotiations that the Respondent ever raised the question of representation and it did so only after the Union had indicated its willingness to accept all of the Respondent's terms and to consummate a contract with Duke, if he possessed the authority, as he claimed he did . To justify the imposition of proof of majority as a condition of concluding a contract, Duke testified that he first became aware that the Union might no longer represent a majority of the employees when during a recess in the negotiations he telephoned Rosen- thal and secured the employee information requested by the Union . However, I find on the basis of the evidence in the record that the Respondent did not have a valid ground for doubting the majority status of the Union , which for some 15 years had represented the Respondent 's employ- ees pursuant to successive contracts. The documentary and oral evidence supplied by the Respondent discloses the following pertinent information out of 40 employees in the Respondent's employ on December 3, 35 went out on strike on December 6; as of March 20, 1972, there were 23 replacements54 and 9 strikers who had returned to work; 55 as of the same date , there were 15 unrecalled strikers who had submitted written applications for reinstatement on March 3, 1972; 56 and there was one former striker (George Blackshear) who made an oral application and was reinstated after March 20. In determining majority status in an 8(a)(5) case, the Board has held that permanently replaced economic strikers were entitled to be included in the bargaining unit.57 It is thus clear from the figures set forth above, that on March 20, the Union enjoyed the presumptive support of at least 25 former striking employees in a unit of about 48 employees . The fact that a number of the strikers had returned to work before the strike ended does not necessarily mean that they no longer desired representation by the Union . It is not uncommon for strikers to abandon a strike for economic and other reasons and yet still favor union representation. Moreover, the record is devoid of 54 An exhibit furnished by the Respondent shows that 38 replacements were hired between December 7 and February 21, 1972, and none thereafter Of this number, 15 were terminated before March 20, of the remaining 23 replacements 3 were listed as disabled as of that date, and 2 other replacements were terminated on March 31 55 Five more former strikers returned to work by the week ending April 8, 1972 56 There was another former striker (James Jarmon), whose application any evidence demonstrating that the Union had lost support of the unrecalled strikers Nor, for that matter, was any evidence adduced that even the permanent replace- ments themselves were not interested in being represented by the Union. In sum, I find that the Respondent did not have a valid basis for doubting the Union's majority on March 20, 1972, and that therefore, its refusal to continue with the negotiations was in violation of Section 8(a)(5) and (1) of the Act.58 2. Unilateral change in the employee insurance program It is undisputed that shortly after the strike began the Respondent, without notifying or consulting the Union, changed its employee insurance program by including unit employees in a group insurance policy with a private carrier, which previously only covered nonunit employees. In so doing, the Respondent discontinued the employees' existing coverage under the Teamsters health and welfare fund program. Under well-established law, such unilateral action, involving as it did a change in benefits and cost to employees, violated Section 8(a)(5) and ( 1) of the Act.59 3. Unilateral imposition of notification and registration conditions for reinstatement of strikers Following the Union's unconditional application for the return of the strikers to work, the Respondent informed the Union by letter dated February 3, 1972, that, in view of the absence of vacancies , the strikers would have to comply with certain procedures in order to keep the Respondent informed of their availability for recall as jobs opened up. This involved maintaining the information on their employment applications current and renewing their applications for reinstatement every 30 days. I find, contrary to the Respondent's contention, that these conditions were not presented as a proposal to the Union but were in fact unilaterally imposed as a condition of reemployment, without affording the Union an opportuni- ty to bargain over those requirements . There is nothing in its letter to indicate that the requirements were bargaina- ble. Indeed, although the Union protested the Respon- dent's action and filed on February 24 an amended unfair labor practice charge in the instant proceeding , alleging its unlawfulness, the Respondent did not offer to discuss the matter with the Union. I find that the imposition of the notification and registration requirements is of sufficient concern to the former strikers as employees and their prospects of reemployment as to constitute a mandatory subject for collective bargaining with their representative, whether or not the requirements were reasonable .60 I therefore find was sent in by the Union along with these 15, who was recalled on March 14, 1972 57 C H Guenther & Son, Inc, d/b/a Pioneer Flour Mills, 174 NLRB 1202, enfd 427 F 2d 983 (C A 5), cert denied 400 U S 942 58 Ibid 59 N L R B v Katz, 369 U S 736, 743-744 60 Cf N L R B v American Machinery Corporation, 424 F 2d 1321, 1328 (C A 5), enfg 174 NLRB 130, where the employer raised the problem of FOOD SERVICE COMPANY that the Respondent's unilateral action also violated Section 8(a)(5) and (1) of the Act. 4. Failure to furnish information and access to company records During the strike, the Respondent complained to the Union about the misconduct of several strikers, indicating that they might be disqualified for reinstatement. Although the Union repeatedly requested the names of the culprits and particulars concerning their acts, the Respondent declined to comply with these requests for the reason that the occasion for considering these individuals for reem- ployment had not yet arrived. However, the Respondent did notify the Union in its March 8 letter that only one striker, Fred Simon, would be ineligible to return to work when vacancies arose because of his involvement in a knifing incident. It appears that in December Rosenthal had complained to the Union's business manager, Parker, concerning this incident, but did not identify the offending striker. It appears to me that the bargaining representative of striking employees is entitled to information relating to the names of those claimed to be guilty of strike misconduct and the general nature of their acts. Obviously, such information is needed by the bargaining agent to enable it to make an appropriate investigation of the facts so that it may be in a position to decide what measures should be taken to protect the rights of these strikers to reemploy- ment, if the facts so warranted. Moreover, such informa- tion, to be really useful, should be furnished with reasonable dispatch In the present case, I find that the Respondent's delay in identifying the individual alleged to be involved in the stabbing incident is inexcusable However, inasmuch as the Respondent had informed the Union of the incident shortly after it had occurred and the Union had the opportunity to check into the matter, as Parker stated he would do, it is my opinion that it would be hypertechnical to base an 8(a)(5) finding upon the Union's request for the misconduct information Accordingly, dismissal of this allegation of the complaint is recommend- ed. The complaint also alleges that the Respondent default- ed in its bargaining obligation when, in response to the Union's request for access to payroll records, the Respon- dent advised the Union that it would be permitted to inspect only such payroll records the Respondent deemed relevant In its letter dated March 15, the Respondent, made company records available on the following terms: .. we are offering to you the opportunity to come out to the Company and review any document which is relevant and/or necessary to your negotiations on behalf of the employees in the appropriate bargaining unit. If we have any differences of opinion as to what is or is not relevant and/or necessary, such matter will be seeking out strikers months or years after their application for reinstatement and the court observed that "a concerned employer will find means to cope with this burden" possibly by establishing a reasonable time during which [the strikers'] applications will be considered current and at the expiration of which they must take affirmative action to maintain that current status " 61 In its brief, the Respondent, citing the principle of The American News Company, Inc, 55 NLRB 1302, contends that the strike was unlawful 805 raised at that time and discussed. It would serve no useful purpose at the present time to attempt to delineate any and all matters which may or may not be relevant to your obligation on behalf of the employees in the appropriate bargaining unit. I find that the Respondent's response was a reasonable and adequate compliance with the Union's request. It seems to be perfectly clear that where, as here, the request for access to company records is made in general terms, the company, of necessity, must make the initial selection of the books and records to be produced for inspection. This is precisely what the Respondent stated in its letter in which it further provided for the parties' consideration of the Union's right to examine other documents should the question arise. Undeniably, the Union is not entitled to rummage through the Company's records to determine for itself which ones should be made available to it for inspection. Moreover, it is significant that the Union never appeared at the Respondent's facility to see what records and documents the Respondent was prepared to permit the Union to examine. Under the circumstances, I find insufficient evidence that the Respondent breached its statutory obligation. Accordingly, I recommend dismissal of the applicable allegations of the complaint. 5. Denial of reinstatement Having found that the Respondent did not fail to bargain in good faith prior to the December 6 strike, it follows that the strike was an economic one intended to force the Respondent to yield its bargaining stance and make concessions to reach agreement.61 Moreover, I find that the Respondent did not subsequently commit any unfair labor practices which converted the strike into an unfair labor practice strike. As participants in an economic strike, therefore, the striking employees were entitled to reinstatement to their former jobs if available. The Respondent was not obligated to terminate the permanent replacements to create vacancies for the strikers wishing to return to work,62 as the Union repeatedly requested the Respondent to do. Of course, the strikers remained employees and, as such, were entitled to full reinstatement upon the departure of replacements unless the strikers had acquired regular and substantial equivalent employment elsewhere.63 Rosenthal credibly testified, without contradiction, that on February 2, 1972, when the Union made an uncondi- tional application for the return of the strikers to work, there were no vacancies available. The record also shows that the Respondent on February 15 and 16 requested the Union to send four strikers to fill vacancies that arose, but the Union refused to honor the request unless all the strikers were returned to work. It is also clear that no striking employee who desired to return to work was because it was called to compel the Respondent to agree to the Union's proposed wage increase which exceeded the amount permissible under the then prevailing wage-price guidelines However, not only was this defense never raised before, but the record is absolutely devoid of any evidence that such was an objective of the strike Accordingly, I reject this contention 62 N L R B v Mackay Radio & Telegraph Co, 304 U S 333, 345-346 63 The Laidlaw Corporation, 171 NLRB 1366, enfd 414 F 2d 99 (C A 7), cert denied 397 U S 920 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied reinstatement if a job were available. Indeed, 14 strikers had already been recalled as of the time of the hearing and no contention is made that any returning striker was not accorded full and complete reinstatement. In view of the foregoing, I find that the General Counsel has failed to establish that the Respondent discriminated against any striking employee. Accordingly, it is recom- mended that the pertinent allegations of the complaint be dismissed. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and like and related conduct and take certain affirmative action designed to effectuate the policies of the Act. To remedy the Respondent's unlawful refusal to fulfill its statutory obligation, I recommend that it be directed to recognize the Union as the exclusive representative of the Company's employees in a unit found appropriate herein, and, on request, to resume negotiations with that organiza- tion concerning rates of pay, wages, hours of employment, and other conditions of employees. An appropriate notice for posting at the Respondent's facility is also recommend- ed. 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. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Respondent at its Houston, Texas, facility, but excluding office clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the above-described unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on March 20, 1972, to proceed with the negotiations in an effort to consummate a contract unless the Union proved its majority status, the Respondent refused to recognize and bargain collectively with the Union as the exclusive representative of the employees in the above-described unit in violation of Section 8(a)(5) and (1) of the Act. 6. By unilaterally changing the employees' insurance program and imposing notification and registration re- quirements for the reinstatement of striking employees who 64 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 unconditionally applied to return to work, without first affording the Union an opportunity to bargain over these matters, the Respondent violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent did not discriminate against em- ployees in violation of Section 8(a)(3) and (1) of the Act or engage in acts violative of Section 8(a)(5) or (1) of the Act except as found in this Decision. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: 64 ORDER The Respondent, Food Service Company, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employ- ment: All employees employed by the Respondent at its Houston, Texas, facility, but excluding office clerical employees, salesmen, guards, watchmen, and supervi- sors as defined in the Act. (b) Unilaterally changing the employees' insurance program or other terms and conditions of employment or imposing notification and registration requirements for the reinstatement of striking employees who unconditionally apply to return to work, without first affording the above- named Union an opportunity to bargain over these matters. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named Union, as the exclusive representative of all the employees in the unit described above concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its facility in Houston, Texas, the attached noticed marked "Appendix."65 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immedi- 65 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 " FOOD SERVICE COMPANY ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous 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 23, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.66 IT IS FURTHER ORDERED that the allegations of the amended complaint that the Respondent discriminatorily denied employees reinstatement in violation of Section 8(a)(3) and (1) of the Act and refused to bargain collectively with the Union in other respects than those found in this Decision in violation of Section 8(a)(5) and (1) of the Act be, and they hereby are, dismissed. 66 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 23, 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 refuse to recognize and bargain collectively in good faith with General Drivers, Warehousemen & Helpers Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, or other conditions of employment. The bargaining unit is: 807 All employees employed at our Houston, Texas, facility, but excluding office clerical employees, sales- men, guards, watchmen and supervisors as defined in the Act. WE WILL NOT unilaterally change our employees' insurance program or other terms and conditions of employment or impose notification and registration requirements for the reinstatement of striking employ- ees who unconditionally apply to return to work, .without first affording the above-named Union an opportunity to bargain over these matters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL bargain collectively, on request, with the above-named Union, as the exclusive representative of all the employees in the unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. Dated By FOOD SERVICE COMPANY (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296.