Valley Oil Co., Inc.

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valley Oil Co., Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 437, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case l-CA-8788 April 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On September 21, 1973, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel refiled his memorandum filed to the Administrative Law Judge. 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, as modified herein, and to adopt his recom- mended Order as modified herein. In finding that Respondent violated Section 8(a)(5) and (1) of the Act by engaging in bad-faith bargaining with the Union, the Administrative Law Judge specifically refused to rely on the statements of Vincent Mello, the dispatcher and assistant manager of the Haverhill facility, to various employees that they "would never get a contract" or that the Respondent "would close down" before it would sign an agreement with the Union. Although he found such statements violative of Section 8(a)(1), the Administrative Law Judge concluded that Mello's supervisory position was not the type of job which would make him privy to the deliberations of the Pescosolidos, who owned and operated the business. He further concluded that Mello, in the absence of direct evidence that the Pescosolidos had informed him of their intentions about a contract, and because he did not participate in the negotiations, was merely voicing his opinion in his above statements concern- ing Respondent's having no intention to reach agreement. We disagree with these conclusions. As assistant manager and dispatcher, Mello was next in command to the Pescosolidos over the unit employees. Therefore, responsibility for his state- ments must be imputed to the Respondent. Accord- 1 In the absence of exceptions thereto, we hereby adopt pro forma the Administrative Law Judge's findings regarding the discharge of employee ingly, we find that Mello's 8(axl) conduct constitutes an element of the Respondent's bad-faith bargaining. REMEDY In the section entitled "The Remedy," the Admin- istrative Law Judge recommends that the Respon- dent be ordered to offer the unlawfully discharged strikers reinstatement to their former positions without their being required to make a prior unconditional application for reinstatement. It is the settled policy of the Board that employees who are discharged while on strike must indicate abandon- ment of the strike and a willingness to return to work in order to establish their right to their jobs and resumption of wages, unless there is a showing that such application would have been futile. Astro Electronics, Inc., 188 NLRB 572; Sea-Way Distribut- ing, Inc., 143 NLRB 460. Since the present record contains no such evidence, we shall modify the remedy to conform with established Board policy. In doing so, however, we find it only fair that the Respondent should be required to notify the dis- charged strikers immediately that each will be reinstated upon his making proper application as indicated above, and it shall be so ordered. In addition, we shall order that replacements hired after the unfair labor practice strike began be discharged, if necessary, to make room for those unfair labor practice strikers who may so apply . We shall also modify the recommended Order to provide that backpay shall commence for each striking employee, including the five employees found to have been unlawfully discharged, commencing 5 days following his unconditional offer to return to work. 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, as modified below, of the Administrative Law Judge and hereby orders that Respondent, Valley Oil Co., Inc., Haverhill, Massachusetts, its officers, agents, successors, and assigns, take the action set forth in the said recommended Order as modified herein. 1. Substitute the following paragraph for para- graph 2(f) in the Administrative Law Judge's recommended Order: "(f) Immediately notify David Rain, Jeffrey Hodg- es, Norman Thompson, Edward Duchesneau, and Stanley Widgren that it has no objective to their reinstatement, and thereafter, upon their uncondi- tional application therefor, offer them reinstatement Raymond Holland. 210 NLRB No. 47 VALLEY OIL CO. to their former jobs or, if such jobs are not available, to substantially equivalent jobs, and make them whole for the period commencing 5 days after the date of any such application for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages, in the manner set forth in the section entitled `The Remedy.' " 2. Insert the following as paragraph 2(g) and consecutively renumber the remaining paragraphs of the recommended Order: "(g) Upon their unconditional application for reinstatement, offer the striking employees immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replacements, and make them whole for any loss of pay they may have suffered for the period commenc- ing 5 days after the date of any such application in the manner set forth in the section entitled `The Remedy.' " 3. Substitute the attached notice for the notice attached to the Administrative Law Judge's Deci- sion. MEMBER FANNING, dissenting in part: My majority colleagues have concluded that it will effectuate the purposes of the Act to require an unlawfully discharged striker to make an uncondi- tional offer to return to work before the employer has any obligation to reinstate him. But an unlawful- ly discharged striker is an unlawfully discharged employee.2 The discharge violates the statute in either case. I believe such an employee is entitled to backpay fi i :.i the date of discharge until the date he iccw cs a valid offer of reinstatement. Whether or not an unlawfully discharged striker has continued to strike after his unlawful discharge is a backpay question to be resolved in the same manner as any other willful loss of earnings incurred by an unlaw- fully discharged employee. The burden, however, is on the Employer; not only to offer reinstatement, but also to prove willful loss of earnings. I would order the Employer to reinstate the unlawfully discharged employees with backpay from the date of discharge, subject to normal offset considerations. I otherwise approve the majority opinion. 2 Southern Greyhound Lines, Division of Greyhound Lines, Inc, 426 F 2d 1299 (C.A 5, 1970), Massey Gin and Machine YVorks, Inc, 78 NLRB 189, 203; cf International Van Lines, 409 U S 48 (1972). APPENDIX 371 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law and has ordered us to post this notice. WE WILL NOT discharge employees because they engaged in a strike. WE WILL NOT assign David Rain to more arduous or less agreeable jobs because of his or other employees' activities on behalf of Team- sters, Chauffeurs, Warehousemen and Helpers Union Local 437, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, nor will we deprive him of overtime or sick pay because of such activity, and WE WILL make him whole for any loss of pay he may have suffered by reason of our failure to assign him to his normal duties and by reason of our denial of such pay. WE WILL immediately notify David Rain, Norman Thompson, Stanley Widgren, Edward Duchesneau, and Jeffrey Hodges that we have no objection to their reinstatement, and thereafter upon their unconditional application for such, offer them reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, and WE WILL make them whole by paying them any wages they may have lost because we discharged them unlawfully, com- mencing 5 days after date of any such applica- tion. WE WILL offer, upon their unconditional application, to reinstate the striking employees to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, dismissing, if necessary, any replacements, and make them whole for any loss of pay for the period commencing 5 days after the date of any such application. WE WILL NOT change conditions of employ- ment such as Christmas bonus and uniforms, nor will we subcontract unit work, without first notifying and consulting with the above-named Union. WE WILL NOT discontinue paying a Christmas bonus or providing uniforms to employees, nor will we subcontract unit work or hire part-time employees, because our employees have selected the above-named Union as their representative for the purposes of collective bargaining. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay to those employees who did not receive a Christmas bonus in December 1972 a Christmas bonus in the amount and according to the formula used in paying a Christmas bonus to other employees. WE WILL pay to all employees who were unlawfully deprived of uniforms in the fall of 1972 the dollar value of the uniforms which was unlawfully withheld from them. WE WILL make the tank trailer drivers whole for any loss of pay they may have suffered by reason of the employment of part -time help and the subcontracting of work they normally per- formed. WE WILL NOT tell employees that management will never sign a contract with the Union or that it will close the plant before signing a contract. WE 'WILL NOT tell employees that Christmas bonuses have been withheld because employees selected the above-named Union to represent them. WE WILL NOT imply to employees that sick leave benefits have been denied them because employees selected the Union to represent them. WE WILL NOT tell employees part-time help has been hired to reduce the overtime of regular employees because they voted for the Union. WE WILL NOT tell employees that they have been discharged because they are participating in a strike. WE WILL NOT tell strikers we will find a way to discharge them. WE WILL bargain collectively, upon request, with the above-named Union, as the exclusive representative of all our employees in an appro- priate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All truckdrivers and oil burner servicemen employed at our Haverhill, Massachusetts, location, but excluding office clerical em- ployees, salesmen, dispatchers, ma tenance men, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, as amended. You are free to become and remain members of Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 437, or any other labor organization. VALLEY OIL CO., INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge : This case involves allegations that Respondent Valley Oil engaged in conduct independently violative of Section 8(axl) as hereinafter described, that it discharged six employees in violation of Section 8(axl) and (3) of the Act, that it violated Section 8(axl), (3), and (5) of the Apt by certain unilateral changes in conditions of employment , and that it violated Section 8(axl) and (5) by engaging in surface bargaining. The complaint issued on May 1, 1973, pursuant to a charge filed by the above-named Union on January 12, 1973, which was first amended on January 23, 1973, and amended a second time on January 16, 1973. On May 29, through June 1, 1973, a hearing was held in Boston, Massachusetts. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent , I make the following: FINDINGS OF FACT 1. FACTUAL SETTING Respondent is engaged in the retail sale and wholesale and distribution of gasoline and fuel oil and in the operation and leasing of American Oil Service stations. Respondent's principal office and place of business is in Haverhill, Massachusetts.) In the summer of 1972,2 Respondent's employees became interested in union representation and their interest culminated in the filing of a representation petition on June 28, pursuant to which an election was held on August 4, in which a majority of the employees cast valid ballots designating the Union as their bargaining representative. On October 11, the Union was duly certified. Beginning in early November , until January 15, 1973, the I Jurisdiction is not in issue. The complaint alleges, the answer admits, the assertion of jurisdiction. and I find that Respondent meets the Board's direct outflow standard for 2 All dates are in 1972 except where otherwise indicated. VALLEY OIL CO. 373 Union and Respondent engaged in negotiations without reaching agreement. On January 15, 1973, the employees went out on strike. The parties continued their negotiations after the strike began, but no agreement was reached and no negotiations have been held since March 2, 1973. The strike was still in progress at the time of the hearing. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Interference, Restraint, and Coercion 1. Vincent Mello Vincent Mello, dispatcher and assistant to the manager and an admitted supervisor within the meaning of Section 2(11) of the Act, is alleged to have engaged in the following acts of interference with, and restraint and coercion of, employees in violation of Section 8(aXl) of the Act: Raymond Holland was hired by Mello on November 3, as a part-time gasoline tank trailer driver. He testified that on the day he was hired Mello told him he was being hired to cut down on overtime of the employees because the Union had been voted in. He testified further that, on December 28, Mello asked him if he wanted full-time employment and Holland replied that he did and asked Mello who was the union man to see about signing. Mello threw his hands up and said, "Oh, another one." Holland testified that on January 18, 1973, he asked Mello why he was no longer being given employment and asked whether he was laid off or fired. Mello pointed out the window of the office and said, "there is the reason right there." Mello denied making any of the foregoing statements, but I do not credit him. As will appear elsewhere in this decision, Mello was involved in many aspects of this case. In the main, I have not credited his testimony because he appeared to me to be less than completely candid and generally his testimony was outweighed by the circum- stances. Where I have credited him, the circumstances supported him. As between Mello and Holland, I credit Holland because he impressed me favorably as an honest witness. Accordingly, I find that Respondent violated Section 8(aXl) by Mello's statement to Holland that he was being hired to reduce the overtime of the drivers because the Union had been voted in. I find that his remark on December 28 "Oh, another one" was not coercive, but his remark on January 18 was coercive because it attributed Holland's loss of employment to the strike. Norman Thompson, a tank-trailer driver, testified that 2 weeks after the election Mello told him that "we would never get a contract" and "that they would close the place down before we got a contract." Mello denied making any statements about the Compa- ny's intentions about signing a contract. He admitted making a remark to Thompson about the probability that Respondent could close its doors, but he did not explain the circumstances under which he made the remark. I credit Thompson. Mello's admission of a remark about closing the doors lends credence to Thompson's testimony about a threat. As to the remark about not signing a contract, Mello's denial was a general denial an in not crediting him I rely, in part, on his admission that he had discussions with the drivers about the status of negotia- tions, when it would not be unlikely for Mello to state that Respondent would never sign a contract. Such a remark would clearly tend to interfere with employees because of the idea of the futility of collective action which it conveys. Thompson also testified that in the first week of the strike, on the picket line, Mello told him "we were all fired." According to Mello, he asked Thompson if he knew all the fellows were going to be replaced. I credit Thompson. The term replacement is one familiar in labor relations, but not one in common usage by, or commonly known to, low-level supervisors. I believe and find that Mello said the strikers were fired and thereby violated Section 8(aXl) of the Act. Edward Duchesneau, a retail fuel oil driver, testified that in mid-November he asked Mello if he thought they would get a contract and Mello said the old man would never sign a contract. He also testified he asked Mello about a Christmas bonus and Mello said they would not be getting one because of the Union. The first part of buchesneau's testimony was denied by Mello in his general denial that he made such a statement to anyone. Mello did not deny the remark about the Christmas bonus. I credit Duchesneau and find that both statements were made and both were violative of Section 8(aXl) of the Act. Duchesneau testified that in February he had a conver- sation with Mello at a store near the terminal when he asked Mello if he thought they would eventuall y get a contract. Mello replied that it made no difference because the old man would find a way to fire them anyway. Mello denied making any such remarks to anyone. I credit Duchesneau. The remark contained a clear threat of discharge and related to the employees' union activities. I find that Respondent thereby violated Section 8(aXl) of the Act. Duchesneau testified that in the latter part of December or early January he asked Mello how come employee David Rain, a burner service man, was chopping ice. Mello replied that he was going to force Rain to quit because of grievances he had taken up with the Union which involved Mello. Mello denied making any remark that he would force anyone to quit. I credit Mello. Duchesneau gave other testimony to support allegations that Rain was unlawfully suspended. That testimony was incredible and I consider this to be of a piece with it. David Rain testified that in the latter part of December he asked Mello why the employees were not going to receive a Christmas bonus as they had the year before. Mello told him that it was because the Union was trying to get a contract. Mello said the employees would never get a bonus or a contract. Mello did not deny making the remark about the Christmas bonus and I do not credit his general denial concerning not signing a contract. I find the remarks to Rain violative of Section 8(axl) of the Act. Rain was absent from work because of illness in the latter part of December. When he returned to work and received his wages he discovered he had not been paid for 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the period he was absent from work. He had been paid for a period of absence due to illness in March 1972, so he went to Mello to ask about the matter. Mello told him he had not been there long enough. Rain said he couldn't understand such a reply since he had been paid when he had less seniority. Mello said that was the way it was, adding "with the Union trying to get in here, you don't expect to be paid. Let the Union pay you." Mello did not deny having the conversation described by Rain and I find that his remarks implied to Rain that Rain had not received sick pay because of the Union's presence and they were therefore coercive and violative of Section 8(a)(1) of the Act. Louis Duquette, a former employee of Respondent who was not working at the time and was assisting the Union in picketing Respondent, testified that in late January or early February he met Mello in a nearby store and asked Mello when Mr. Pescosolido would give the Union a contract. Mello replied that as far as Pescosolido was concerned they won't get one. Duquette asked why not and Mello said because Pescosolido didn't like them and wanted no part of them.3 Mello denied having such a conversation as Duquette described, but I credit Duquette. However, I do not find the statement violative of Section 8(a)(1) of the Act because Duquette was not an employee of Respondent, nor an applicant for employment.4 He was merely assisting the Union in picketing Respondent and I fail to see how Mello's remark could tend to interfere with his exercise of Section 7 rights. Joseph Collins, a retail fuel oil driver, testified that Mello told him on numerous occasions that there would never be a contract at Valley Oil, that "the old man would never sign a contract. He would go out of business first." Mello did not specifically deny Collins' testimony. I credit Collins and find that Mello's remarks were violative of Section 8(a)(1) of the Act. 2. Richard Pescosolido Richard Pescosolido (hereinafter referred to as Richard), is vice president of Respondent. According to employee Jeffrey Hodges, on the second day of the strike he went into the company office to pick up picket signs inadvert- ently left there. He testified that Richard asked him if he knew what he was doing and Hodges said yes. Richard told him he was out of a job and "Consequently, he was fired." Richard denied making such remarks. He testified he asked Hodges if he knew the consequences of the strikers' actions, that according to his information "it could mean they could lose theirjobs because of it." I credit Richard's version of what was said and I find that his admitted remarks were unlawful. Richard may have had in mind that economic strikers could be replaced, but he did not tell Hodges he might be replaced. He implied the possibility of discharge because Hodges had gone out on strike. Such an implied threat is coercive and violative of Section 8(a)(1) of the Act. B. The Alleged Discriminatory Conduct The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act in a number of ways, including discharges, changes in working conditions, subcontracting of work, and denial of overtime. Certain of the discrimina- tory conduct is alleged to have also been violative of Section 8(a)(5) of the Act, because of its unilateral aspect. Under this heading, I dispose of the discharges and allegations that employees were provided less work than normal. The remaining allegations of discriminatory conduct are disposed of under the refusal-to-bargain heading. 1. The discharges a. Raymond Holland As noted earlier, Holland was hired as a part-time driver on or about November 3. It has been described how he claimed to have been offered full-time employment by Mello on December 28 and how he allegedly expressed an interest in signing up with the Union. Thereafter, he did not receive full-time employment. To the contrary, Holland was not used by Respondent after January 6, 1973, and he was, in effect, terminated. General Counsel contends that Holland was denied full- time employment and thereafter terminated because he had expressed interest in the Union. Since Mello denied offering Holland full-time employment, Respondent of- fered no explanation of its failure to give him full-time employment, but the explanation is clearly bound up with its explanation for terminating him. That explanation was stated in terms of lack of work, but was refined to include incompetence. Although the conclusion is not free from doubt, I conclude that General Counsel has failed to establish by a preponderance of evidence that Holland was denied full-time employment or terminated for discrimina- tory reasons. My conclusion is based in large part on the fact that there is record support for Respondent's explanation for terminating Holland. Thus, in the week ending December 30, of the four tank-trailer drivers, only Widgren worked in excess of 44 hours and that was only by 1-3/4 hours. In the week following that, there was very little overtime worked by the full-time drivers, yet Holland only worked 13-1/4 hours. These figures certainly do not indicate a need for Holland's services on a full-time basis. The record does indicate that during the same period of time Respondent was subcontracting delivery work which it could very well have assigned to Holland, and, in other circumstances, I might have been persuaded that its failure to do so was attributable to Holland's expressed interest in the Union. In the circumstance of this case, however, I am persuaded that Respondent did not follow through on Mello's inquiry of December 28 about Holland's desire for full-time employment, because it concluded that Holland was not a satisfactory employee. This conclusion is based on Hol- land's own testimony that on his last delivery he had trouble and had to call Mello for help. About a week later, 3 The Pescosolidos are the owners of the busmess. 4 Compare San Tanksley Trucking, Inc, 198 NLRB No 45 VALLEY OIL CO. 375 when Holland called about work Mello told him Respon- dent would no longer use him because of some damage to cars. Holland has a crippled leg and Mello testified that other drivers had commented to him critically about Holland's ability to do the work. This testimony was uncontradicted and finds some support in Holland's difficulties on his last delivery and in testimony of Robert DeRusha, the Union's representative, of discussions with Respondent about Holland having backed into a tree. As I view the matter, the last incident in which Holland was involved caused Respondent to reconsider any thought of employing Holland on a full-time basis and instead convinced it that it was better not to employ him at all. According to Holland, this was precisely what he was told. In short, I conclude that General Counsel has failed to establish by a preponderance of evidence that Holland was denied full-time employment or discharged for discnmina- tory reasons. In reaching this conclusion, I have considered the January 18 incident when Mello was asked by Holland whether he was fired or laid off and Mello replied by pointing to the picket line. As Holland had been terminat- ed before the picketing began, I do not see how this postdischarge remark which I have found to be violative of Section 8(a)(1) could convert the lawful discharge into an unlawful one. b. Jeffrey Hodges Hodges was hired on December 19, 1972. On February 7, 1973, he was discharged for the asserted falsification of his employment application with respect to whether or not he had ever been arrested. The employment application form used by Respondent bears the question "Have you ever been arrested." According to Respondent and as Mello testified, Hodges answered this question by a check mark in the "No" box although he had not only been arrested, but even more had been convicted of breaking and entering a building at night with intent to commit larceny. According to Hodges, fearing he would not be hired if he answered the question truthfully, he simply did not answer the question at all. Hodges' discharge poses two questions: did he falsify his employment application and, if so, was this the real reason for his discharge. I conclude that Hodges falsified his application. This conclusion is based on credited testimony of Mello and the Xerox copy of Hodges' employment application. While Mello was not a wholly credible witness, neither was Hodges who admitted to an arrest which he said was for using drugs but neglected to mention the conviction described above. Apart from that, I cannot believe that had he left the question unanswered Mello would have overlooked the omission and ignored it. Even if Mello was careless in a matter such as this, Hodges would have no reason to believe he would be and his omission would not serve the very purpose for which he asserts he omitted an answer; rather, the omission would provoke more questions. Although I find that Hodges falsified his application as asserted by Respondent, the question yet remains whether the employer's dominant motive in discharging him was the asserted falsification or union animus. N.LR.B. v. Fibers International Corp., 439 F.2d 1311 (C.A. 1, 1971). The answer to that question is rarely an easy one. In this case, there is no prior history of discharges for similar cause, but this proves nothing because there is no evidence any other employee gave similar cause. The record indicates that employees are covered by a blanket bond and that Respondent neither makes, nor authorizes, an investigation to determine whether employees have arrest records. Such evidence suggests Respondent has a minimal concern about this subject matter, and arguably Respon- dent should have only minimal concern about a falsifica- tion. Such a rationale for finding Hodges' discharge unlawful is untenable because it would require substitution of the Board's judgment for that of Respondent as to what constitutes good cause for discharge. There is no question, then, that Hodges' falsification of his employment application constituted good cause for discharge. However, in my judgment, this was not Respondent's real reason for discharging him. According to Respondent, it discovered Hodges' arrest record accidentally when a policeman surveying the picket line remarked to Mello, in effect, that it was not surprising there was violence on the picket line in view of the criminal record of Hodges. This remark assertedly led to an examination of Hodges' employment application, discovery of the falsification and his discharge. Although I credit the testimony about the discovery of Hodges' criminal record, I do not credit the testimony that the falsification of the application was the reason for discharge. The accidental discovery of Hodges' criminal record occurred on or about January 17 or 18, and presumably Respondent discovered the falsification short- ly thereafter, yet Respondent did not discharge Hodges until February 7. The delay in action might not be viewed as significant were it not for the fact, as will be described below, that Hodges' discharge coincided with the unlawful discharge of four other employees on the same day. In addition to this circumstance, there is the evidence consisting of the testimony of Carl Pescosolido, Sr. (hereinafter referred to as Carl) that when Respondent learned about Hodges ". . . our people began to check all the employment applications." The fact that Respondent would conduct such a search to discover grounds to discharge other strikers argues strongly that what had been discovered in Hodges' case was seized upon as a pretext to discharge hun because of his protected activities. Further proof of this unlawful motivation is the evidence consisting again of Carl's testimony that one of Respondent's attorneys advised Respondent to notify him if Hodges was seen on the picket line because the attorney had been in touch with the probation officer who had apparently told Hodges to get off the picket line and find himself a job. Such conduct designed to interfere with Hodges' protected activities indicates clearly that Respondent was unlawfully motivated in discharging Hodges. I so find. c. Edward Duchesneau Duchesneau went on strike on January 15. On February 7, Respondent notified him by letter that he was being discharged for serious strike misconduct. The only eviden- ce of stake misconduct consists of the testimony by Duchesneau that, about January 17, he was picketing at a 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bulk station when one George Sheldon, at times an independent contractor who did oil burner service work for Respondent and at other times an employee, arrived driving a retail fuel oil truck (which was Duchesneau's type of work.) Duschesneau told him he didn't mind Sheldon's doing boiler work, "but please don't drive an oil truck."" Sheldon made a vulgar remark and Duchesneau replied in kind and said "I will kill you ..." Sheldon was carrying a picket sign, nothing else, and made no movements to implement his words. No other evidence of strike miscon- duct involving Duchesneau was adduced. As the Board has indicated the statutory right of employees to strike, picket, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection "would be unduly jeopardized if all forms of misconduct occurring in the course of a strike would deprive the employee of the protective mantle of the Act, without regard for the seriousness of such conduct." The Blair Process Company, Inc., 199 NLRB 194. In the instant case, Duchesneau's threat if uttered seriously would constitute serious misconduct. However, the threat was clearly not uttered seriously as evidenced by the fact that it was not accompanied by any physical acts of misconduct, either then or later; rather, Duchesneau's threat was just an angry retort provoked by Sheldon's vulgarity .5 Under the circumstances, Duchesneau's con- duct was not such as to deprive him of the protection afforded strikers by the Act, and by discharging him Respondent violated Section 8(axl) and (3) of the Act. d. David Rain David Rain was hired in September 1971. In June 1972, he was laid off for an asserted lack of work. On October 25, in settlement of an unfair labor practice charge he was reinstated with backpay of $2,700. Prior to his termination, Rain had performed a variety of jobs but was principally employed as an oil burner repairman. He testified without contradiction that before his termination a service truck was assigned to him on a 24- hour 7-day per-week basis for use on service calls. When he was reinstated, Mello gave him the keys to the truck, but he told Rain that he had to turn them in at the end of each day. When Rain asked about this restricted usage Mello told him that "because of union activities I wasn't allowed to use the truck at night." Mello told Rain that George Sheldon, who had been employed to do oil burner repair work as a subcontractor after Rain's termination in June, would use the truck for night service calls. After his reinstatement Rain performed oil burner repair work, but was assigned none of the other types of work he had previously performed (e.g., pump repair, piping work, electrical work). He was not receiving full-time employ- ment and in early November he complained to the Union. His complaint appears to have been adjusted in that Respondent agreed to provide him with 44 hours of work per week. Thereafter he was assigned menial tasks (Rain's words) such as chopping ice in the driveway, shoveling snow, cleaning up the premises, and fetching coffee for Mello. On January 5, 1973, Rain was assigned to wash a fuel truck. According to Rain, there was no cap on the gasoline tank, and in the course of washing the truck, water got into the truck's gasoline tank. Rain reported this fact to Mello who told him to ignore it and continue about his work. Later, it developed that a substantial amount of water had gotten into the gasoline tank and unsuccessful efforts were made to dry the water out and eventually the truck had to be towed away for repair. On January 9, Rain was suspended for 1 week because of this incident. Rain had no occasion to work thereafter because he joined the strike that began on January 15, 1973. On February 7, 1973, Rain was terminated because Respondent claimed to have hired a permanent replacement. The complaint alleges that Respondent discriminated against Rain a variety of ways: by assigning him to more arduous or less agreeable work after his reinstatement on October 25, by denying him sick leave in December, by suspending him on January 9, and discharging him on February Rain's case had its genesis back in June when he was terminated for the asserted reason of lack of work. At the same time he was terminated, Respondent subcontracted his work to George Sheldon. Thereafter, an unfair labor practice charge was filed and it was settled by an agreement by Respondent to reinstate Rain to his former or substantially equivalent job with backpay of $2,700. According to General Counsel, this background informa- tion is sufficient to illustrate that his June discharge was discriminatory. I do not agree. "The Board has uniformly held that settlement agree- ments . . . have no probative value in establishing that violations of the Act have occurred and may not be relied on to establish either union animus or a proclivity to violate the Act." Southwest Chevrolet Corp., 194 NLRB 975. General Counsel has not really shown much else than the settlement agreement insofar as Rain's June discharge was concerned. True, he showed that simultaneously with discharging Rain for lack of work Respondent hired a subcontractor to perform his work thereby suggesting that lack of work was not the real reason. However, according to Rain's own testimony, he had not been involved in union activity before his June discharge. That circum- stance detracts from the assertion that his June discharge was discriminatory. In the final analysis, the question of Rain's June discharge was not fully litigated, and the record is insufficient to support a finding even for background purposes that Rain was discriminatorily discharged in June. This does not mean, however, that the terms of his reinstatement are to be ignored, else one would have no way of deciding whether he was assigned arduous and less agreeable work for discriminatory reasons. I start, therefore, with Rain's reinstatement on October 25. According to the settlement agreement, Rain was to have been reinstated to his former job or a substantially equivalent job. He was not. His testimony about the 5 Davis Wholesale Co., Inc., 166 NLRB 999. Firestone Tire 41 Rubber Co., 187 NLRB 54, cited by Respondent, is factually distinguishable. VALLEY OIL CO. 377 restrictions on his use of the truck when he returned to work and how such use differed from prior practices was uncontradicted and it indicates clearly that his reinstate- ment was not to his former job. Moreover, as part of the change, George Sheldon continued to perform Rain's work and it was for this reason that Rain did not have sufficient hours of work and was compelled to complain to the Union. His complaint, however, did not result in a correction of the problem by restoring his prior working conditions. Instead, he was assigned to less agreeable tasks to keep him busy. Respondent contends that Rain was assigned to less agreeable tasks to provide Rain with a 44-hour workweek without, however, even addressing itself to its failure to reinstate Rain in accordance with its agreement. It claims there was insufficient work to keep him busy without adverting to the fact that during the same period Sheldon earned $873.50 in October, $901.55 in November, $759 in December, and $1,092.90 in January 1973. Had the work Sheldon performed been assigned to Rain, he would have had less time to chop ice or wash trucks. It is significant that during a comparable period the year earlier Rain had worked overtime every week. Respondent contends that one reason Rain was given fewer oil burner service assignments was his failure to perform his work properly. In this connection, it adverts to written reprimands for conduct towards customers on November 4 and 7, insubordination on November 9, a pushing incident with Mello on November 24, and maintenance of his truck on December 15. Rain denied receiving the reprimands, but I do not credit him. This does not mean that I accept Respondent's assertion of the reason for not assigning Rain to more burner service work. It is evident that Rain'was festering under the discriminatory treatment accorded him by Mello from the very day of his return to work, and on two occasions he permitted this festering to enter into his job performance where customers were concerned and on other occasions it affected his relations with Mello and his performance at the terminal. Such behavior was improper, but its impro- priety must not be permitted to overshadow the original source of his discontent; namely, his discriminatory treatment. As to the reason for the treatment accorded Rain, it is clear that Respondent was motivated by animus against its employees because of their union activities. Thus, Rain testified that Mello told him on October 25 that the restrictions on his use of the truck were because of the union activities and his testimony was uncontradicted. Whether the union activities were those of Rain or those of all the employees as a group is immaterial. The record as a whole indicates that Respondent entertained animus against its employees as a group because they had voted for the Union. This does not mean that Rain was not himself a known union supporter. He and two other employees had cast challenged ballots at the election and all three challenges were overruled. When the ballots were counted, all three were in favor of the Union. Respondent therefore knew Rain's sentiments. In summary, the record supports a finding that Rain was not reinstated to his former job under the same conditions existing prior to his June discharge, that the reason he was not properly reinstated was because of Respondent's animus against him and all its employees because of their union activities, and that by reason of his improper reinstatement Rain not only received fewer assignments within his job classification and was required to perform more arduous and less agreeable tasks to complete his workweek, but also was deprived of overtime comparable to that worked by him during the same period a year earlier. Accordingly, I find that his assignments to less desirable tasks and his loss of overtime arose out of his and other employees' union activities and that Respondent thereby violated Section 8(axl) and (3) of the Act. The next allegation respecting discrimination against Rain arose out of his absence from work for over a week because of illness in December. Rain was not paid for the period he was absent whereas he had been paid for an absence due to illness in March . In view of that fact, he asked Mello why he had not received sick pay on this occasion. Mello told him he had not been there long enough and Rain rejoined that he couldn't understand that since he had received sick pay in March when he had been employed an even shorter period of time. Mello replied that was the way it was and that "with the Union trying to get in here, you don't expect to be paid. Let the Union pay you." The foregoing is Rain's testimony which was not contradicted. In light of Mello's remark, and considering the fact that Rain had received sick pay in March, a finding is warranted that the denial of sick pay on this occasion was attributable to the employees' union activi- ties; namely, the fact they had selected the Union to represent them. According to Richard, Respondent had no sick leave policy as such but rather handled absences due to illness on a case-by-case basis. In Richard's judgment, Rain was not deserving of sick pay in view of the fact he had received sick pay in March and his poor work performance. I do not credit Richard's explanation. Significantly, this explanation was never given to Rain. The only explanation he received was Mello's and that explanation indicates Respondent's unlawful motivation. The next allegation involving Rain relates to the truck- washing incident on January 5 when he got water into the truck's gasoline tank and was thereafter suspended for 1 week. There is much record testimony about this incident which I see no need to repeat. Rain claimed the water got into the tank by accident. Respondent concluded Rain deliberately put water into the tank. In my judgment, Rain's testimony is incredible. Like Mello, I cannot believe that water got into the tank as described by Rain. It follows that he was guilty of misconduct and I conclude that Respondent suspended him for that misconduct. In reaching this conclusion , I have weighed the facts that Rain had been the object of discrimination in other ways as described above, that Rain was the one to report the incident to Mello, and that before his suspension Rain was not given an opportunity to discuss the incident with Carl, who made the suspension decision. In my judgment, on the facts reported to Carl by Mello, the conclusion that misconduct was involved was so apparent no adverse 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inference may be drawn from the fact that Rain was given no chance to discuss the incident. The final allegation involving Rain relates to his discharge on February 9 for the asserted reason that he had been permanently replaced. As will appear below, the strike herein was an unfair labor practice strike. For this reason, Rain was not subject to being replaced and his discharge on the ground he had been permanently replaced was violative of Section 8(a)(1) and (3) of the Act. e. Stanley Widgren and Norman Thompson Widgren and Thompson were tank-trailer drivers who went on strike on January 15, 1973. Like Rain, they were discharged on February 7 on the ground they had been permanently replaced. As in Rain's case, I conclude that the discharges were violative of Section 8(a)(1) and (3) of the Act because Widgren and Thompson were unfair labor practice strikers not subject to replacement. 2. Less than normal employment The complaint contains three allegations that Respon- dent provided less employment to its employees in the unit than they normally would have received, because of their union activities. Paragraph 13 alleges that "Respondent, since September 1972 and continuing to date, did provide to its employees employed at its Haverhill facility less employment than they normally would have received." As can be noted, the allegation does not identify which employees were provid- ed less employment, nor does the complaint indicate how this was achieved. General Counsel's brief is silent about this paragraph of the complaint and I have been unable to determine what it refers to. I shall therefore recommend its dismissal. Paragraph 17 of the complaint alleges that "Respondent, since September 1972 and continuing to date, did increase its use of subcontractors to perform the work of unit employees at its Haverhill facility thereby providing less employment than they normally would have received." This allegation is related to the complaint allegation that Respondent subcontracted unit work unilaterally and it will be disposed of below. Paragraph 18 of the complaint alleges that "Respondent, since September, 1972 and continuing to date, did use part- time employees to perform unit work at its Haverhill facility thereby providing less employment to full time employees than they normally would have received." This allegation relates to the retail fuel drivers and the tank- trailer drivers. Insofar as the retail fuel oil drivers are concerned, General Counsel's evidence in support of this allegation consisted of the testimony of driver Duchesneau that his overtime was cut by the employment of part-time drivers Shaw and Lauder, and the payroll records of driver Collins showing that for a period of 5 weeks in November and December he worked less overtime than the comparable period in the preceding year. In my judgment, such evidence was insufficient to support the allegations of the complaint. In Duchesneau's case, General Counsel did not establish how much overtime Duchesneau worked in a comparable period the preceding year. In addition, he did not establish when part- time employees Shaw and Lauder were hired. It would appear from Duchesneau's testimony that they were hired in October or November, yet their names do not appear on General Counsel's Exhibit 23 which I understood was a record of regular and overtime hours of all drivers during the relevant period. Shaw and Lauder did become part- time drivers, but apparently at a later date. In Collins' case, the mere showing that he worked less overtime hours for a period of 5 weeks in 1972 than for the comparable period in 1971 is insufficient to establish a violation of the Act. The difference could be attributable to factors other than the employment of part-time drivers. More importantly, Richard testified that it was customary to hire part-time fuel oil drivers during the winter season because of the heavy demand for fuel oil and to reduce the cost of overtime. Although Richard's testimony is suspect because he had not been working at the facility in prior years, I credit it. General Counsel did not impeach the testimony in any way, although presumably Respondent's personnel records could have been produced to refute Richard's assertions. In short, I conclude that General Counsel has failed to establish by a preponderance of evidence that the retail fuel oil drivers were denied overtime for discriminatory reasons. Insofar as the tank-trailer drivers are concerned, the record indicates that in and after September, Respondent employed four tank-trailer drivers. Raymond Holland was hired on a part-time basis in November, as described earlier and first worked in the payroll period ending November 18. A review of the payroll records (G.C. Exh. 23) shows a substantial reduction in the hours of work of the tank-trailer drivers after Holland was employed. According to Richard, the drivers were working an excessive number of hours in violation of ICC regulations and Holland was hired to remedy that situation. However, according to General Counsel's Exhibit 23, between September and the date Holland first worked, there had only been seven instances when drivers worked in excess of 60 hours, and the excess was generally minimal. After Holland started working, there were five such instances. Thus, the employment of Holland did not serve the purpose for which he was assertedly hired. It did, however, serve to reduce the number of hours worked by the drivers as a group, and in the case of driver Dubois so much so that he quit. Based on these facts, plus Mello's remark to Holland when he hired him and the fact that thereafter (as discussed below) Respondent subcontracted the same work, I reject Richard's testimony and I conclude that Holland was hired to reduce the overtime hours of the tank-trailer drivers because the employees had selected the Union to represent them. C. The Alleged Refusal To Bargain The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by making certain changes in working conditions after the election without notice to or consultation with the Union, by refusing to furnish requested information, and by bargaining in bad faith with no intention of reaching an agreement. As noted earlier, VALLEY OIL CO. 379 the alleged unilateral changes in conditions of employment are also alleged as violations of Section 8(a)(3) of the Act and they are disposed of under this heading. Preliminarily, it should be pointed out that there may be some question as to, when certain alleged unilateral conduct occurred in relation to either the August 4 election or the October 11 certification. I have not distinguished between postelection and postcertification conduct be- cause Respondent's obligation to recognize and deal with the Union arose on August 4 when a majority of the employees voted for the Union, and not at the later date of certification. N.LR.B. v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 866 (C.A. 5, 1966). 1. The changes in conditions of employment notice to, or bargaining with, the Union, it violated Section 8(a)(5) and (1) of the Act. In addition, by discontinuing its policy of providing uniforms, Respondent violated Section 8(a)(1) and (3) of the Act. This conclusion is based on the fact that the policy had been of long standing and that it was discontinued after the employees selected the Union as their collective- bargaining representative without any claim of business justification. The withdrawal of a benefit without explana- tion after employees selected a union as their collective- bargaining representative warrants the inference that the withdrawal was motivated by the fact the employees had made such a choice. The inference is compelling when one considers it in the context of other changes in working conditions made by Respondent during the same period as discussed below. a. Uniforms Joseph Collins, a retail fuel oil driver employed by Respondent for 17 years, testified that Respondent had supplied the drivers with uniforms twice a year for as long as he had been employed there. In the fall of 1972, he did not receive a uniform and he asked Vincent Mello about it and all he was told was that Respondent wasn't furnishing them any more. The Union's contract proposal provided that uniforms would be furnished by Respondent and the matter was discussed at a negotiation meeting on Novem- ber 14. Respondent took the position that' the employees no longer wanted uniforms, and it would not agree to furnish uniforms. On November 21, having checked with the drivers, Robert DeRusha, the Union's chief negotiator, reiterated the demand for continuation of the uniform policy, but Respondent adhered to its position. Respondent contends that it had no policy of providing uniforms to its employees, except service station attendants (who are not part of the unit herein). According to Richard, Respondent had not issued uniforms to its drivers for 1-1/2 to 2 years. I do not credit Richard. I credit Collins' testimony that the drivers had always received uniforms until the fall of 1972 when the policy was discontinued. In reaching this conclusion, I note that Richard had not been employed at Respondent's Haverhill facility until about October or November, and his testimony about Respondent's policy could not have been based on any personal knowledge. I note further that when the subject was discussed in negotiations, according to the uncontradicted testimony of Robert DeRusha, the only reason advanced by Respon- dent for not agreeing to a contract provision requiring it to provide uniforms was that the employees did not want them. Respondent did not assert to DeRusha that it had no policy of providing uniforms. Finally, I note that Collins' testimony about his conversation with Mello about uniforms was undenied. The furnishing of uniforms to employees is a condition of employment which Respondent was not free to change without notice to, or bargaining with, the Union. While the subject was discussed in negotiations, this was after the Respondent had discontinued furnishing uniforms and the Union was entitled to notification prior to discontinuance. As Respondent discontinued furnishing uniforms without b. Christmas Bonus According to General Counsel's Exhibit 14, every year since at least 1966 Respondent has given a money Christmas bonus to its employees. In 1972, none of the unit employees, except Collins, received a bonus. It is undisput- ed that Respondent did not discuss the subject with the Union. In defense of its conduct, Respondent contends that it did not have a Christmas bonus policy. According to Respondent, its monetary disbursements at Christmas were not bonuses, but gifts, which were discretionary both as to the amount and as to beneficiaries. Under these circum- stances, Respondent contends on the authority of NLRB. v. Katz, 369 U.S. 736 (1962), that it was precluded from paying a Christmas bonus lest it be accused of unilaterally granting employee benefits in violation of Section 8(a)(5) of the Act. It does, of course, merely beg the question to call Christmas bonuses gifts. The question really is whether a Christmas payment has been given over such a period of time that it has become a part of the employees' wage expectancy. Where that is the case, the continuance or discontinuance of the bonuses is a bargainable matter. N. L. R. B. v. Niles-Bement-Pond Company, 199 F.2d 713, 714 (1952). In light of the 6-year history of granting bonuses in the instant case, it is clear that the subject of Christmas bonuses was a bargainable matter. Respondent's contention that it was relieved of any obligation to bargain about the bonuses because the administration of the bonus policy was invested with an element of discretion is without merit. In Nello Pistoresi & Son, Inc., 203 NLRB No. 108, the Board (Member Kennedy dissenting) found that an employer who discon- tinued a 2-year bonus policy of no perceptible formula without notice to the union violated Section 8(a)(5) and (1) of the Act. In Marland One-Way Clutch Co., Inc., 192 NLRB 601, the Board found that an employer 'violated Section 8(a)(5) and (1) of the Act where he unilaterally discontinued a bonus program where the amounts to be paid each employee were based on a variety of factors such as attendance, quantity and quality of work, and loyalty, and evaluations were based, not on records, but on management's rememberance of a man's performance. As the Board stated in a recent decision where the issue was 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unilateral grant of merit increases, "An employer with a past history of a merit increase program neither may discontinue that program [as we found in Southeastern Michigan ] nor may he any longer continue to unilaterally exercise his discretion with respect to such increases, once an exclusive bargaining agent is selected . N.LR.B. v. Katz, 396 U.S. 736. What is required is a maintenance of preexisting practices, i.e., the general outline of the program, however the implementation of that program (to the extent that discretion has existed in determining the amounts or timing of the increases), becomes a matter as to which the bargaining agent is entitled to be consulted." 6 Respondent here discontinued a longstanding policy of granting bonuses and he did not consult the Union. Actually, it is not clear whether Respondent's position is that it discontinued bonuses because of fear of violating law, or whether it actually continued the bonus policy but did not disburse bonuses to unit employees (except Collins) because they did not measure up to long-existing standards of performance. Respondent appears to defend its conduct on both grounds; yet, the two seem to me to be mutually exclusive. In any event, inasmuch as all but one unit employee did not receive a bonus the conclusion that Respondent, in effect, discontinued the bonus policy as to unit employees is inescapable. To find otherwise would require a finding, as Richard's testimony suggests, that the reason all but one employee did not receive a bonus was that all but one had failed to perform at a level acceptable or satisfactory to Respondent. Such a finding would have no record support except Richard's testimony which I find not worthy of credence especially where the record indicates that in prior years no employee had been denied a bonus because of his work performance. Furthermore, the fact that all employees received bonuses in the past indicates that the only discretion involved in the granting of Christmas bonuses was in deciding how much to grant employees with comparable seniority.? In short, I find that Respondent discontinued its bonus policy as to unit employees, without notice to the Union, and that it thereby violated Section 8(a)(5) and (1) of the Act. As in the case of uniforms, there is also the question of Respondent's motive in discontinuing the Christmas bonus. Respondent did not ascribe its discontinuance of the bonus to economic considerations (as, for example, in Nello Pistoresi, supra ). Given the 6-year history of bonuses and the lack of any economic justification, the fact that the bonus was discontinued the first Christmas after the Union was certified supports an inference that the bonus was discontinued because the employees selected the Union as the collective-bargaining representative. Richard's testimo- ny that a bonus was not given to unit employees because it might be construed as a bribe is, in my judgment, tantamount to an admission that the discontinuance of the bonus was predicated on unlawful considerations. It is abundantly clear that Respondent entertained no fears that continuing its bonus policy would subject it to a charge of bribery. During the same time span , Respondent was meeting with the Union to discuss a contract and other matters. It obviously could have easily put any fears to rest by mentioning the issue to the Union. It consciously refrained from doing so. In my judgment, the only inference to be drawn from the record is that Respondent discontinued the bonus as a reprisal against its employees for selecting the Union as the collective-bargaining representative .8 c. Sick leave policy The complaint alleges that, in December 1972, Respon- dent unilaterally discontinued its sick leave policy to certain of its employees. The only evidence of a sick leave policy adduced by General Counsel was the testimony of David Rain discussed earlier wherein I found that he was denied sick pay in December because of union activities. It does not follow, however, that the same denial of sick leave to Rain constituted a unilateral change in sick leave policy. According to Respondent, it had no official sick leave policy. Richard testified that pay for absence due to illness was made on a case-by-case basis depending on length of service and satisfactory work performance . According to this practice, Richard testified that employees other than Rain were absent from work due to illness and they did not receive sick pay. General Counsel offered no evidence to contradict Richard. While I am not persuaded by Rich- ard's testimony that Respondent had no sick leave policy, there is no evidence of the terms of any sick leave policy, and Richard's testimony about the method for administer- ing sick leave pay was not impeached . Accordingly, I conclude Respondent's failure to grant sick leave pay to Rain in December did not constitute proof of a unilateral change of policy in violation of Section 8(aX5) and (1) of the Act. d. The subcontracting of work The record indicates that, since the election in which the Union was designated collective-bargaining representative for the employees in an appropriate unit, Respondent has subcontracted certain unit work . The record further indicates that Respondent had subcontracted certain work in the past, but General Counsel contends that, beginning in September 1972, Respondent increased its use of subcontractors. He contends that Respondent violated Section 8(axl), (3), and (5) by reason of this increased use of subcontractors because Respondent acted unilaterally and for discriminatory reasons. Except for gasoline transport and delivery , Respondent denies that it has increased its use of subcontractors. As to 6 Oneita Knitting Mills, Inc., 205 NLRB No. 76, fn. 1 r These conclusions are based on my analysis of G.C. Exh. 14 which is far from a model of clarity. The exhibit, prepared by Respondent's bookkeeper, was received into evidence by stipulation and neither party offered to explain the entries thereon, such as the fact that certain names were crossed out and a second name substituted, and in some cases there are blanks or marks indicating no bonus was paid . Nevertheless, in my judgment, a fair reading of the exhibit leads to the conclusion that all employees had received Christmas bonuses since 1966 until 1972 , except employees who had not been employed long enough . Although Richard testified employees had been denied bonuses in the past for poor work performance he did not identify a single one whose name appeared on the exhibit and was evidently referring to other operations of Respondent. b 1 have noted above that Collins was an exception and received a Christmas bonus. Such an exception does not militate against the findings above when one considers that he was an employee of 17 years ' standing. VALLEY OIL CO. 381 gasoline transport and delivery, it contends that any increase occurred after December 17, 1972, was motivated by business needs, was discussed with the Union, and resulted in no significant detriment to the unit employees. The kind of work about which the issue over subcon- tracting exists is bulk fuel delivery, pump repair work, oil burner service, and gasoline hauling and delivery. Bulk fuel: The record indicates that Senter Transporta- tion made bulk deliveries of fuel oil for Respondent on a regular basis since January 1971 and General Counsel has failed to point out wherein Respondent's subcontracting of this type of work was unlawful. I find no violation. Pump repair: The record indicates that Respondent had a history of subcontracting some pump work and other work related to the construction or functioning of gasoline service stations. Since at least September 1971, Respondent had used the services of Zecco, Inc., and in June 1972 it had begun the use of Allied Pump & Tank Service, Inc. According to General Counsel, David Rain was qualified to do work of the type subcontracted to Zecco and Allied and had in fact done such work for Respondent in the past. I am not persuaded, however, that that fact alone would justify a finding that Respondent violated either Section 8(a)(3) or (5) in subcontracting the work described in General Counsel's Exhibit 15(b) and (c). That work appears to have been more than routine pump repair work. Richard gave testimony to that effect and that the subcontractors were better qualified to do such work than were Respondent's employees, including Rain. There is nothing in the record to justify my rejection of his testimony. As the subcontracting was a continuation of similar subcontracting before the Union was selected by the employees, and as I deem the evidence insufficient to support a finding of discriminatory motive, I shall recommend dismissal of the complaint allegations relating to the subcontracting to Zecco and Allied. Respondent also subcontracted pump repair work to Armand Samoisette in January 1973. This was work normally done by a regular employee who had been incapacitated by an accident and Rain could have performed this work. In fact, he had trained the disabled employee. Moreover, in his principal line of work (burner service repair) Rain was less than fully occupied. In my judgment, the subcontracting of this particular work, which was the type of work regularly performed by unit employees, was a clear departure from past practice. Inasmuch as the record fails to show that Respondent gave any notice to the Union of its decision to subcontract the work, and as the subcontracting had a direct relationship to the amount of work available to a unit employee, I conclude that the subcontracting to Samoisette was violative of Section 8(aX5) and (1) of the Act. Respondent has not expressly explained why it subcon- tracted this work to Samoisette, instead of assigning it to Rain. From its arguments respecting Rain's assignment to menial tasks set forth above, it is evident that Respondent's position would be that Rain was not performing his regular duties in a satisfactory manner. I have rejected that position earlier for reasons given. I would add that, prior to his reinstatement on October 25 and the discriminatory treatment accorded him thereafter, Rain was a satisfactory employee. Both Richard and Mello were critical of him, but Richard was in no position to know about Rain's performance, because he was not employed at the Haverhill facility before October and Mello's criticism was more of his attitude than his competence. Significantly, Rain had not received a written reprimand until after his reinstatement. On the record as a whole, I conclude that Respondent subcontracted work to Samoisette as part of its pattern of discrimination against Rain in reprisal for his support of the Union and the employees' selection of the Union as the bargaining representative and that it thereby violated Section 8(aX3) and (1) of the Act. Burner service and repair: The record indicates that some oil burner service and repair work was subcontracted long before the election in which the Union was selected as collective-bargaining representative : a burner was installed by a subcontractor in 1971; between July and November 1971, burner cleanouts were subcontracted to one Al Hurd who also handled service calls; Oil Burner Service handled service calls in certain specified areas for several years. The only oil burner repair work subcontracted out to a new subcontractor in 1972 according to General Counsel's Exhibit 19(a) does not appear to be that normally among the duties of a burner service repairman. In short, none of General Counsel's exhibits on the subcontracting of oil burner repair work supports a finding of a violation of Section 8(aX5) and (1) of the Act. In addition to the subcontracting set forth in the exhibits, there is undisputed evidence of the subcontracting of oil burner service work to one George Sheldon. This was precisely the work which Rain had been performing. However, Sheldon had become a subcontractor for Respondent in June 1972, when Rain was laid off assertedly for lack of work . In this circumstance, it cannot be held that the initial subcontracting to Sheldon was violative of Section 8(aX5) of the Act. Whether Respon- dent's continued use of Sheldon after Rain was reinstated in October was violative of Section 8(aX5) is another question. According to DeRusha's uncontradicted testimo- ny, the use of Sheldon as a subcontractor was discussed in the course of settling Rain's case. When Respondent agreed to reinstate Rain to his former position, the Union understood this to mean that Respondent would discontin- ue using Sheldon. Respondent continued to use him after Rain was reinstated without notice to the Union. In my judgment, Respondent's continued use of Sheldon after Rain was reinstated may reflect on its good faith in settling Rain's case and on its motive in using Sheldon, but I fail to see where there can be said to have occurred a unilateral change in conditions of employment . In short, I consider that the continued subcontracting to Sheldon after October 25 was not violative of Section 8(aX5) of the Act. As to Respondent's motive in continuing to subcontract to Sheldon after October 25, the record supports a finding that Respondent was motivated by union animus. Respon- dent never did explain why it continued to use Sheldon. It did not dispute DeRusha's understanding of the settlement of Rain's case. Yet, as I have already described, at the instance of his reinstatement Rain was restricted in his use of the service truck because Sheldon would handle the night service calls Rain had previously handled, and, as 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mello told Rain, the reason for this was "union activities." Under the circumstances, I conclude that the continued subcontracting to Sheldon after October 25 was violative of Section 8(a)(3) and (1) of the Act. Gasoline hauling and delivery: According to Respondent, it has a history of subcontracting this type of work, and the only matter for consideration is its alleged increase in the amount of subcontracting. Apart from the period of January 1, 1971, to June 1, 1971, when Senter Transport delivered all of Respondent's gasoline, Respondent has no significant history of subcon- tracting this type of work. On the contrary, after it canceled its arrangement with Senter Transport in June 1971 and reacquired the equipment, Respondent subcon- tracted gasoline deliveries on only three occasions between July 1971 and October 1972. After October 1972, more precisely in mid-December 1972 and thereafter, Respon- dent subcontracted on a regular basis to S & H (70 deliveries between December 19, 1972, and January 16, 1973) and on a few occasions to Appleyard's, Merrill Transport, and Brewer Petroleum. Thus, it is clear the Respondent increased the subcontracting of gasoline hauling after the election to such an extent that it constituted more than a mere extension or continuation of a long established practice. Union Carbide Corporation, 178 NLRB 504, and Shell Oil Company, 166 NLRB 1064, on which Respondent relies are factually distinguishable. Respondent asserts that it discussed the subcontracting with the Union and cannot therefore be found to have acted unilaterally. This assertion is not supported by the record. True, there were discussions of the subcontracting, but, as DeRusha testified, any discussions of subcontract- ing were initiated by him and were occasioned by the discovery by the drivers of new subcontracting of their work. The duty to bargain is not fulfilled by discussions after the fact. Moreover, discussions may not be a correct description of what occurred at the bargaining table because DeRusha's complaints were met by disclaimers. Accordingly, I conclude that Respondent did not notify, or consult with, the Union about his subcontracting. Respondent also asserts that the subcontracting of this particular work did not result in a significant detriment to unit employees, but the record indicates otherwise. Thus, an analysis of General Counsel's Exhibit 23 indicates that after September 6, 1972, the total hours of work of the gasoline drivers had increased to a point where every week they exceeded 200 hours. During the week ending November I1 the hours of work totaled 222-1/2; Novem- ber 18, 243-3/4; November 25, 266; and December 9, 242. Thereafter, the total hours decreased substantially, and the drivers received less work. Thus, contrary to Respondent's assertion, there was a significant impairment of unit work because of the subcontracting. In short, I find that Respondent violated Section 8(a)(5) and (1) of the Act by subcontracting gasoline hauling and delivery without notice to, or consultation with, the Union. As with the other subcontracting and unilateral changes in conditions of employment, there is the question of Respondent's motive in subcontracting gasoline delivery. According to Respondent, in mid-December, it was experiencing a slowdown by the drivers. Drivers began to call in sick, were late for work, or just simply failed to report for work. Deliveries were not made and customers complained. To remedy the situation, Respondent subcon- tracted some gasoline deliveries, particularly, those with critical delivery times. The foregoing assertions are based on the testimony of Richard, which Respondent states in his brief was unrefuted by General Counsel. In my judgment, Richard's testimony is not deserving of any credence. Significantly, it was not supported by a single piece of documentary evidence, either in the form of correspondence with customers about complaints, trip records, work summaries, or personnel records of the drivers. Richard asserted that Respondent had to pay $100 penalties because of late deliveries, yet no record was submitted to show the payment of any penalties, although presumably this would be reflected in company records. As to absences, Richard's testimony is belied by General Counsel's Exhibit 23 which shows two absences for sickness for driver Norman Thompson and one for Skinner in October. There are no notations of other absences thereafter. Finally, there is the admitted and wholly inexplicable failure of Respondent to warn or reprimand any of the drivers for engaging in a slowdown. Under all the circumstances, including Respondent's other unfair labor practices, a finding is warranted that the subcontracting was motivated by Respondent's animus against its employees for having selected the Union as their collective-bargaining representative and was, therefore, violative of Section 8(axl) and (3) of the Act. 2. The refusal to furnish information On January 4, the Union requested that Respondent furnish it with payroll data showing the number of employees employed between April 1, 1971, through March 30, 1972, and records showing current employees. Respondent admittedly has refused to furnish the informa- tion. It is undisputed that the Union requested information about the number and names of Respondent's employees because a dispute had arisen in negotiations over whether Respondent's operations were subject to the 5. 5-percent wage increase guidelines then in force under Phase II of the Government's wage and price control regulations. According to the Union, which was requesting wage increases in excess of the 5.5-percent guidelines, Respon- dent's employees were insufficient in number to render Respondent subject to the wage control guidelines. Respondent contended otherwise and the Union 's request was aimed at resolving the issue. Thus, the request was clearly relevant to negotiations at the time it was made. However, on January 11, 1973, Phase III went into effect and the 5.5-percent guidelines were no longer applicable. Deeming the Union's request for the information moot, the Respondent refused to supply the information. Respondent contends that its refusal to furnish the information was not unlawful because changed circum- stances had rendered the information sought irrelevant to any issue pending in the negotiations. I agree. As Respondent points out, while certain information (e.g., wage) is presumptively relevant because it bears, VALLEY OIL CO. 383 directly on the negotiation of a collective-bargaining agreement, other information may or may not be relevant depending on the circumstances. Southwestern Bell Tele- phone Co., 173 NLRB 172. In the instant case, names and number of all current unit and nonunit employees was information which was not presumptively relevant. The Union knew the name and number of the unit employees, and the only reason it wanted information on a broader basis was because of the dispute over wage control guidelines. As those guidelines changed after its request the information was no longer relevant to the issue which had given rise to the request. The Union has adhered to the request despite the change in wage control policy, but no reason has been given for its doing so and no showing has been made of any relevant purpose different from that for which the information was initially requested. Accordingly, Respondent's refusal to supply the information was not violative of Section 8(a)(5) and (1) of the Act. 3. The alleged bad-faith bargaining a. The facts As noted above, the Union was certified on October 11. The first negotiating meeting was held on November 7. After that date, 16 negotiation meetings were held, the last on March 2, 1973. Eleven meetings were held between November 7 and January 9, 1973. On January 15, the employees went on strike and, thereafter, there were six more negotiating meetings between January 22 and March 2. In the prestrike negotiations, Respondent was represent- ed by Carl and Richard and in the poststrike negotiations Respondent's principal negotiator was attorney Arthur Menard. The Union's principal negotiator was Robert DeRusha who is the principal source of evidence about the negotiations. Both Carl and Richard testified, but Carl said nothing about the negotiations and Richard's testimony did not go much beyond contradicting DeRusha about certain agreements assertedly reached and rescinded. The account that follows is essentially that of DeRusha, whom I credit. At the first meeting on November 7, the parties agreed to go through the various provisions of the Union's contract proposal leaving monetary items last. Agreed provisions were to be so marked. Proposals on which agreement was not reached or raising legal questions were to be referred by Respondent to counsel for advice. The first four pages of the proposal were covered at this meeting and the remainder at the next meeting on November 14. According to DeRusha several articles of the proposed agreement were agreed to in these two meetings, including a union- security provision. At the third meeting, November 21, the first subject to be discussed was holidays. The Union understood Respon- dent had a policy of nine paid holidays and it was requesting Patriots Day as a 10th holiday. Richard disputed that the Respondent provided nine holidays, checked with the bookkeeper, and reported that Respon- dent provided only eight holidays. He offered to add Columbus Day (which the Union thought the employees already had) and proposed Washington's Birthday for Patriots Day. Richard also proposed attendance require- ments to qualify for holiday pay. There was a long discussion on rates of pay with Respondent proposing a break-in rate whereby new retail drivers would get a lower rate while learning the route. The next meeting was on November 22, and Respondent agreed to level the rates of pay of all bulk tank drivers at $3.50 per hour and that of the retail drivers at $3.25 per hour and to add to both groups an 11-percent increase. The parties agreed to a 2-year contract with a tentative increase of 6 percent for the second year depending on the agreement reached on fringe benefits, with $6 being the minimum increase for the second year. Standby pay of $6 per day and double time for the first hour and time and a half for successive hours for burner service men was agreed to. A dispute arose over Rain's existing rate of pay with Respondent contending his rate was $3.85 per hour and the Union contending it was $4 per hour. The dispute was not resolved at this meeting. According to DeRusha, discus- sions were prolonged by Richard's habit of making long speeches. The next meeting was on November 29 and at this meeting it was agreed that the contract would be retroactive to October 11, the date of the Union's certification. There was a tentative agreement on a health and welfare plan providing for $5,000 life insurance and a $75 weekly disability benefit, but this agreement was not finalized. At the next meeting on December 6, there was a long discussion again of Rain's rate of pay which does not appear to have been resolved. On December 13, using data obtained by Richard himself, Respondent agreed to a $5,000 life insurance with double indemnity as previously discussed and $75-a-week disability payments for 26 weeks. At the meeting of December 21, renewed discussion occurred on holidays with Respondent still claiming, despite the representations of the men, that Columbus Day was not a paid holiday. On a discussion of vacation pay the Company offered 45 hours' vacation pay. The Union suggested that some men were getting more than this naming driver Norman Thompson, but Respondent denied it and represented that they would check it out with the bookkeeper but never produced an answer. At this meeting Respondent advised the Union that it was going to be represented by a different attorney named Harold Mack. At the next meeting on December 28, Respondent changed its position regarding sick benefits. At this time Richard proposed a weekly benefit based on a figure of 60 percent of the hours worked up to 40 hours a week. Under this proposal the insurer would not be Aetna as previously discussed but Connecticut General. Respondent had a plan with Connecticut General covering all its employees and it wanted to remain with that same insurer. DeRusha requested a copy of the plan but was never able to get one and procured one by sending one of the unit employees into the office to get one. With regard to retroactivity, Richard indicated that retroactivity would apply on wages only, not on any fringe benefits. Previous agreement had been on all benefits. With regard to standby pay, the agreement previously reached was modified to provide time and a half for the first hour, instead of double time. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this meeting, for the first time Respondent advised the Union that any agreement reached was subject to the approval of the board of directors who had final authority. At the next meeting on January 3, there was renewed discussion of holidays and Respondent admitted that Columbus Day had been a paid holiday and it agreed to add Patriots Day. There was discussion of health and welfare and it was agreed that the Company would pay the premium of $3.94 for the employees. Contrary to the agreement earlier reached on a guarantee of reporting pay on Saturdays and Sundays, Richard stated that there was no 4-hour guarantee. As to the length of the contract, Carl said that he didn't want a 2-year agreement, that he felt that maybe at the end of the year he might want to call for another election to see if the men still wanted the Union. For this reason, the contract was to be of a 1 year's duration. The next meeting was on January 9. The record does not indicate that anything occurred of significance other than notification by Respondent that thereafter its attorney would be Arthur Menard. The next meeting was scheduled for January 11 but the Respondent canceled it and the record does not indicate for what reason. When the meeting was canceled, DeRusha called Menard's office and spoke to him about obtaining contract language as had been promised to him in the past. Menard told him that he had just received the case and had not had an opportunity to prepare any language. A meeting was arranged for the 16th, but it was never held, because on January 15, the Union called a strike. On the 16th, Attorney Menard called DeRusha and wanted to know why he had not shown up for the meeting and DeRusha informed him that the meeting was to be in the Union's office. Menard suggested that they were going to bring charges against the Union because DeRusha had not shown up at Valley Oil for the meeting. DeRusha gave him a rough outline of the number of meetings that they had and that the last meeting had been held at Valley Oil and the canceled meeting was to have been in his office and as far as the Union was concerned so was the newly scheduled meeting. The first meeting with Menard was on January 22 and at this meeting Menard presented a complete contract proposal which differed from what had previously been discussed and agreed to between the Union and Carl. DeRusha asked Menard about the past 13 meetings and Menard's answer was that everything started from scratch. Menard indicated that he had the power to negotiate for Respondent. Among the subjects discussed were wages and in this particular the Respondent offered a 3-percent increase across the board and an additional holiday and a 1-year agreement. Respondent would not agree to the leveling off of wades. Among other changes were proposals for Classifications A and B among retail and transport drivers. Classification A would be someone with 3 years' service and Classification B with less than 3 years. Retail drivers in the A rate would get $3.35 and in the B rate $3.05. Transport drivers in the A rate $3.60 and in the B rate $3.40. At this meeting, Menard said that the Company was calling in the Federal mediator. At a meeting on February 7, a final offer on wages was made providing a rate of pay for transport drivers of $3.55 in the A classification and $3.45 in the B classification. Retail drivers in A classification $3.40, in the B classifica- tion $3. 15. Maintenance man $3.95, burner man $4.20. Menard indicated the total cost of the offer was 5.8 percent. On February 14; the employees rejected Respondent's proposed contract. The record does not indicate that anything of significance occurred at the March 2 meeting, and thereafter the Union sought to meet but Respondent declined to do so on the ground that an impasse existed and that further meetings would be useless unless the Union was prepared to make a substantial change in its position. b. Analysis and conclusions In addition to his contention that Respondent engaged in 8(aX5) conduct away from the bargaining table as described above, General Counsel contends that Respon- dent engaged in surface bargaining. This contention is based on Respondent's general conduct in the negotia- tions, with specific reliance on the asserted withdrawal from agreements reached and Respondent's failure to vest its agents with authority to carry on meaningful bargain- ing. The issue presented by these contentions is essentially one of fact, and not of law, namely, on the basis of Respondent's entire course of conduct may it be said that it engaged in bargaining with a sincere intention to arrive at an agreement with the Union. I conclude that it did not. Before I set forth my reasons for such conclusion, I would point out that I am not relying on the testimony described earlier of Mello's statements to employees to the effect that Respondent would never sign a contract. While I have found the statements violative of Section 8(axl) of the Act, and while such statements are strong evidence of bad-faith bargaining, I am not persuaded that on the facts of this case the statements may be relied on to support a finding of bad-faith bargaining. Mello is a dispatcher and assistant to the manager in the operations of the Haverhill facility. It is not the type of job which would make him privy to the deliberations of the Pescosolidos. He is a young man and not an employee of many years service. He took no part in negotiations and he denied having any knowledge of the Pescosolidos' inten- tions. Richard denied taking Mello into the Pescosolidos' confidence about negotiations. While I have not found the Pescosolidos' or Mello to be credible in many particulars, I am persuaded from the circumstances just outlined that the statements made by Mello represented his opinion of Carl's intentions about a contract, and, while it was an accurate opinion, it was not based on reports to him by either Carl or Richard and it affords no basis for finding bad-faith bargaining. When one considers the totality of Respondent's conduct, there is ample basis for finding bad-faith bargaining without having to rely on Mello's statements. Respondent's unilateral conduct has already been de- scribed, and, as the Supreme Court indicated in N.LRB. VALLEY OIL CO. v. Katz, supra, while unilateral conduct does not necessarily mean that an employer has been guilty of overall subjective bad faith, such conduct ". . will often disclose an unwillingness to agree with the union." In this case, not only was there unilateral action but it concerned subjects being discussed at the bargaining table, and when the subjects were raised, as in the case of uniforms and subcontracting, there was a complete lack of candor by Respondent about its policies and its changes of policy. On the subject of uniforms, Respondent merely said the men did not want them. On the subject of subcontracting, Respondent did not advance openly and candidly a bargaining position to the effect that it had a practice of subcontracting which it intended to adhere to. That has been its position in this proceeding, but at the bargaining table, according to DeRusha, and before Attorney Menard entered the picture, it denied that it was doing any subcontracting of deliveries except to meet special emer- gencies. Such lack of candor is the antithesis of good faith. Respondent's lack of good faith is also demonstrated by its behavior with regard to holiday pay and Rain's rate of pay. As to both these subjects, company records would clearly have indicated how many paid holidays Respon- dent provided and what Rain's rate of pay was. There was no need for prolonged discussions about the facts, yet Respondent did not accede to the correctness of the Union's facts until late in the negotiations. Another indication of bad faith was Respondent's failure to give a position on contract proposals on which legal advice was purportedly being sought . At the very outset of negotiations, Respondent apparently refused to discuss many provisions about which it professed to need legal advice. Although such advice was allegedly sought, none was obtained until after the strike had started and as a result there could be no meaningful discussions on many issues. An additional indication of Respondent's bad faith is the fact that, at the ninth meeting on December 28, Respon- dent announced for the first time that any agreement reached was subject to the approval of the board of directors. The apparent explanation for this belated announcement appears to be that prior to that date Respondent did not know or anticipate that an agreement would cost in excess of $5,000, and when it appeared that it would Respondent notified the Union because its corpo- rate bylaws require approval by the board of directors of any pledge of corporate assets exceeding $5,000. If the matter were as represented by Respondent, I would nevertheless hold that its failure to give earlier notification was part of its technique to forestall agreement. Respon- dent did not have to await signs that an agreement would cost in excess of $5,000 before giving notification of limitations on the negotiators' authority. In my judgment, however, the situation is even more blatant than just a failure to recognize the need of giving notification. While Respondent is a corporate entity, it is essentially a family enterprise, all directors being sons or daughters of Carl. In reality, father Carl is the holder of final authority and any reliance on corporate restrictions on his authority to negotiate must be viewed as pretextuous. 385 Next to be considered are Respondent's changes of position during negotiations. Thus, having once agreed to a 4-hour guarantee for work on Saturdays and Sundays, it withdrew the agreement. Having agreed to a $5,000 life insurance coverage and $75-a-week disability pay on December 13, it changed its position on December 28. Having agreed to retroactivity on all benefits on November 29, it changed its position on December 28. Having agreed on November 22 to a 2-year contract, leaving open the amount of the second year increase , Respondent on Janusz 3 not only changed its position, but also, according to uncontradicted testimony by DeRusha, gave as its reason fora 1-year agreement that "maybe at the end of the year he [Carl ] might want to call for another election." There is a suggestion in the record that the Pescosolidos were inexperienced negotiators and that what they did reflected that inexperience rather than bad faith. Accord- ing to such an approach, Richard had no intention to frustrate bargaining when he changed positions . According to this approach, any agreements reached on specific proposals were tentative and subject to agreement on a complete contract and Richard was free to change positions. But even under such an approach, the changes in positions must be based on some development in the negotiations and not merely because the negotiator changes his mind. As I we it, this is what Carl and Richard were doing and by so doing they were frustrating arrival at a contract. When their behavior at the bargaining table is weighed in the context of contemporaneous unilateral conduct, the conclusion is inescapable that the bargaining before the strike occurred was not good-faith bargaining. The foregoing relates to Respondent's prestrike negotia- tions. What of its poststrike negotiations? In my judgment, Respondent's bargaining posture after the strike cannot be differentiated from its prestrike conduct. In fact, its poststrike conduct served to block agreement on a contract completely. Thus, at the very outset of the poststrike negotiations, Attorney Menard informed the Union that Respondent viewed the strike as a rejection of its earlier offers and that he had been instructed to bargain tough and that bargaining would start from scratch . Respondent submitted a contract proposal which did in fact retain some of its earlier proposals (e.g., 10 paid holidays), but its proposal contained a substantial change in its wage offer. Respondent also advised"` the Union at one of these meetings that the strikers had been replaced and its agreement to a union-security clause was withdrawn and a maintenance-of-membership provision was substituted. While an employer may be justified in withdrawing a final offer which has been rejected and which has been followed by a strike, there was no final offer before the Union on January 15. As a matter of fact , man, issues had not been discussed because Respondent had not submitted contract language as promised on many of the Union's proposals. The strike was not a rejection of Respondent's offer, but an indication of the employees' discontent over Respondent's bad-faith bargaining. The withdrawal of prior offers under these circumstances , and the substitution of a maintenance-of-membership provision for a union- 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security clause at the same time it is claimed that strikers have been replaced are not acts designed to foster collective bargaining.9 Respondent had a right to bargain tough, but when that toughness is in reaction to a strike, when it has been preceded by bad-faith bargaining, and when it occurs in the context of other unfair labor practices, the conclusion is warranted that its bargaining posture is designed to frustrate collective bargaining, rather than legitimate hard bargaining. I make such a conclusion here and find that Respondent failed to bargain in good faith after the start of the strike as well as before. Finally, there is the matter of Respondent's refusal to meet after the Union's rejection of its final offer unless the Union changed its position. Respondent defends this refusal on the ground that an impasse existed. However, an impasse caused by a party's failure to bargain in good faith is not a legally cognizable impasse and does not justify a refusal to meet. North Land Camps, Inc., 179 NLRB 36. I find, therefore, that Respondent's refusal to meet since March 2, 1973, was a further refusal to bargain in violation of Section 8(a)(5) and (1) of the Act.10 D. The Nature of the Strike The complaint alleges that the strike was caused and prolonged by Respondent's unfair labor practices . Little discussion of the allegation is required . I have found that Respondent engaged in a variety of unfair labor practices before the strike and after the strike. These unfair labor practices were discussed by the employees at a meeting on January 14 when they voted to strike, and it is clear that there was a casual connection between the unfair labor practices and the decision to strike. It is equally clear that the strike has been prolonged by the Respondent's continuing unfair labor practices. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section I, above, occurring in connection with its operations de- scribed therein, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(axl), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that the strike which commenced on January 15, 1973, was an unfair labor practice strike and was thereafter prolonged as such by Respondent's continu- ing unfair labor practices, and as the strikers had not abandoned the strike at the time of the hearing, I shall recommend that Respondent be ordered, uvon the strikers' application, to offer each striking employee immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make whole for any loss of earnings strikers who have made themselves available for employment on an uncondi- tional basis but who have been refused reinstatement. In the cases of strikers David Rain, Stanley Widgren, Norman Thompson, Jeffrey Hodges, and Edward Duchesneau, as they were unlawfully discharged, they shall not be required to make applications for reinstatement and I shall recommend that Respondent be ordered to offer them reinstatement. However, as they were on strike at the time of their discharge, they shall not be entitled to backpay for the period of time they continued on strike and I shall recommend only that they be made whole from the date the strike ends or they abandon it and so notify Respondent, whichever occurs sooner. Capitol-Varsity Cleaning Co., 163 NLRB 1057, 1064. As to Respondent's unlawful denial of sick pay to Rain for his illness in December, I shall recommend that Respondent be ordered to pay Rain the sick pay he would have received but for the discrimination against him. As to Rain's loss of overtime due to the subcontracting to Sheldon and Samoisette, I shall recommend that he be made whole for such loss by paying him the difference in hours worked between the period of October 25, 1972, to January 9, 1973, and the comparable period a year earlier. As to the Christmas bonus, I shall recommend that Respondent resume its policy and that all unit ern,?.oyees who were denied the 1972 Christmas bonus be made whole by payment to each of them the amount each would have received in accordance with the formula used by Respon- dent for the nonunit employees. As to uniforms, I shall recommend that Respondent be ordered to resume its policy and to make whole all employees who were unlawfully deprived of uniforms by paying to them the dollar value of the uniforms customari- ly provided. Southeastern Michigan Gas Company, 198 NLRB No. 8. As to the loss of overtime suffered by the regular tank- trailer drivers by reason of the employment of a part-time driver and the subcontracting of gasoline delivery, I shall recommend that the regular tank-trailer drivers be made whole for any loss of earnings suffered from the time of Holland's employment and from the date of subcontract- ing on December 19, 1972, to the date Respondent discontinues the subcontracting. All losses to be reimbursed as recommended herem shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, to which shall be added interest at the rate of 6 percent per annum in accordance with Isis F?umbing & Heating Co., 138 NLRB 716. As to Respondent's refusal to bargain in good faith, I shall recommend that Respondent be ordered to bargain with the Union in the appropriate unit for which it was (ertified. As the evidence shows that such refusal to bargain in good faith existed from the inception of 9 See Gopher Aviation. Inc., 160 NLRB 1698 the Act, but the matter was fully litigated 10 The complaint does not allege such refusal to meet as a violation of VALLEY OIL CO. 387 negotiations, I shall recommend that the normal certifica- tion year be extended for a period of 1-year from the date when Respondent begins to bargain in good faith with the Union as the recognized representative of the employees in the appropriate unit." The unfair labor practices committed by Respondent strike at the very heart of employee rights safeguarded by the Act. I shall therefore recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Manufactur- ing Co., 120 F.2d 532, 536 (C.A. 4, 1941). CONCLUSIONS OF LAW 1. Valley Oil Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 437, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All truckdrivers and oil burner servicemen employed by Respondent at its Haverhill, Massachusetts, location, but excluding office clerical employees, salesmen, dis- patchers, maintenance men, guards and all 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. The above-named Union is the exclusive representa- tive of the employees of Respondent in the above-de- scribed unit within the meaning of Section 9(a) of the Act. 5. By telling employees Respondent would never sign a contract and that it would close the plant before doing so, by telling an employee Respondent is hiring part-time employees to reduce the overtime of regular employees because they selected the Union to represent them, by telling strikers tiie.F,' have been discharged, by telling strikers Respondciit would find a way to fire them, by telling employees they would not receive a Christmas bonus because of the Union, and by implying to an employee that sick leave was denied him because of the employees' union activities, Respondent engaged in and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. 6. By assigning arduous or less agreeable tasks to David Rain, depriving him of overtime hours and denying him sick pay, because of his or other employees' union activities, by discharging Rain, Stanley Widgren, Norman Thompson, Edward Duchesneau, and Jeffrey Hodges because they engaged in a strike, and by hiring a part-time employee to reduce the overtime of regular employees, subcontracting unit work, and denying Christmas bonuses and uniforms to employees in reprisal against them for 11 The purpose of this remedy is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert denied 379 U S °17 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F 2d 57 (C A. 10, 1965); Waycross Sportswear, Inc, 166 NLRB 101, enfd. 403 F.2d 832 (CA. having selected the above-named Union as their collective- bargaining representative, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(axl) and (3) and 2(6) and (7) of the Act. 7. By negotiating in bad faith with no intention to arrive at an agreement, by unilaterally discontinuing its policy of providing uniforms to employees and of paying a Christmas bonus, and by subcontracting unit work without notice to, or consultation with, the above-named Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(axl) and (5) and 2(6) and (7) of the Act. 8. The strike that commenced on January 15, 1973, was caused and prolonged by Respondent's unfair labor practices. 9. General Counsel has failed to establish by a preponderance of evidence that Respondent violated Section 8(a)(l) and (3) by discharging Raymond Holland and by suspending David Rain. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER i2 Respondent, Valley Oil Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 437, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representatives of its employees at its Haverhill, Massachu- setts, facility in a unit of truckdrivers and oil burner servicemen, but excluding office clerical employees, sales- men, dispatchers, maintenance men, guards and supervi- sors as defined in the Act. (b) Changing the working conditions of its employees by discontinuing its policy of paying Christmas bonuses and providing uniforms for employees and by subcontracting unit work, without notice to or consultation with the above-named Union. (c) Discouraging membership in, or activities on behalf of, the above-named Union, or any other labor organiza- tion of its employees, by discharging employees, assigning employees more arduous or less agreeable jobs, denying employees sick pay, depriving employees of overtime, subcontracting unit work, hiring part-time employees, discontinuing the payment of a Christmas bonus and providing uniforms, or otherwise discriminating in regard to the hire or tenure of employment, or any terms or conditions of employment of its employees, because of their activities on behalf of the above-named Union or because they have engaged in a strike. 5, 1968). 12 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. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Telling employees that Respondent would never sign a contract with the above-named Umon. (e) Telling employees that Respondent would close its place of business down before signing contract with the above-named Union. (f) Telling employees that the Christmas bonus has been discontinued because of their union activities. (g) Implying to an employee that sick pay has been denied him because of union activities. (h) Telling an employee that it is hiring part-time employees to reduce the overtime of regular employees because they selected the Umon to represent them. (i) Telling strikers Respondent would find a way to fire them. (j) Telling employees on strike that they have been discharged. (k) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of all the employees in the unit described above, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Resume the policy of providing uniforms to its employees and make whole all employees in the appropri- ate unit for any losses they have suffered by reason of Respondent's unlawful discontinuance of the policy by paying to them the dollar value of the uniforms customari- ly provided in accordance with the recommendation set forth in the section of this Decision entitled "The Remedy." (c) Resume the policy of paying a Christmas bonus and make whole all employees in the appropriate unit for the unlawful withholding of a Christmas bonus in December 1972, by payment to them of the amount of the Christmas bonus they would have received in accordance with Respondent's established policy and in accordance with the recommendation set forth in the section of this Decision entitled "The Remedy." 13 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 'Tosted by Order of the National Labor Relations Board" shall read "Posted Pursuant ^d) Make David Rain whole by paying him the sick pay which was unlawfully withheld from him on or about December 1972, and for any loss of pay he may have svIfered by reason of the failure to assign him to his normal duties after October 25, 1972, and by reason of the subcontracting of work he normally performed in accord- ance with the recommendation set forth in the section of this Decision entitled "The Remedy." (e) Make whole the regular tank-trailer drivers for any loss of pay they may have suffered by reason of the employment of a part-time employee and the subcontract- ing of their work on and after December 19, 1972, in accordance with the recommendation set forth in the section of this Decision entitled "The Remedy." (f) Offer reinstatement to their former jobs or, if such jobs are not available, to substantially equivalent jobs, to David Rain, Jeffrey Hodges, Norman Thompson, Edward Duchesneau, and Stanley Widgren, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages, in the manner set forth in the section entitled "The Remedy." (g) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports and all other records relevant and necessary to a termination of the amounts of backpay due under the terms of this recommended Order. (h) Post at its Haverhill, Massachusetts, facility copies of the attached notice marked "Appendix ." 13 Copies of said notice, on forms provided by the Regional Director for Region 1 , after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, iiiciuding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (i) Notify the said Regional Director, in writing, within 20 days from the date of this Decision , what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint found not to have been sustained by a preponderance of the evidence be dismissed. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board,