Betra Mfg. Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Betra Manufacturing Company and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504. Case 32-CA-64 (formerly 20-CA-11075) December 13, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On July 28, 1977, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge2 and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge for the reasons fully stated by him that Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain in good faith with the Union. The General Counsel contends that the Administra- tive Law Judge erred in failing to extend the certification year, and in failing to provide an extraordinary remedy. With respect to the certification year, we agree with the General Counsel's contention. We note that the Union was certified on May 16, 1975, and, as stated by the Administrative Law Judge, Respondent has failed since that time to engage in good-faith bargaining. We therefore find it appropriate to extend the certification year for I year from the date when Respondent begins to bargain in good taith with the Union. Inasmuch as the unit employees have been deprived of the benefits of the certification year due to the overall bad faith exhibited by Respondent during the course of negotiations, this extension will insure that the employees in the appropriate unit will be accorded the services of their I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard DryWall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent has moved for dismissal of the complaint herein on various 233 NLRB No. 156 selected bargaining agent for a period provided by law. Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Southern Paper Box Company, 193 NLRB 881 (1971). With respect to the General Counsel's request for a remedy like that ordered in Tiidee Products, Inc., 194 NLRB 1234 (1972), we find that the facts herein do not warrant a full Tiidee remedy. In the Tiidee case, we noted the need to keep crowded court and Board dockets free from frivolous litigation and ordered an employer who refused to meet and negotiate with the certified representative of its employees to reimburse the Board and the union for their costs and expenses incurred in the investigation, preparation, presenta- tion, and conduct of the case. Although we find all of Respondent's contentions to be wholly lacking in merit and/or unsupported by the record, we cannot say that all of its defenses were patently frivolous. Therefore, we deem it inappropriate to apply the requested monetary remedy awarded in the Tiidee case. Contrary to our dissenting colleague, we do not find this case to warrant the extraordinary remedy requested by the General Counsel. In South Hoover Hospital, 196 NLRB 1077 (1972), a case wherein a Tiidee remedy was requested and denied, we ap- proved the following language of Administrative Law Judge Richard D. Taplitz: I am reluctant to recommend such an order where, as here, a small employer's first violation of the Act may be attributable to its gross ignorance of the labor laws rather than to its calculated design to subvert them. I shall, therefore, refrain from recommending such an order .... [196 NLRB at 1081.] We find the foregoing considerations are equally applicable to Respondent here. Accordingly, we would likewise refrain from imposing the monetary remedy requested. On the other hand, we find that certain other remedial measures devised in Tiidee are appropriate in the instant case. The Administrative Law Judge found, and the record amply demonstrates, that Respondent has failed, during the course of 22 negotiating sessions continuing over a 17-month period, to engage in the good-faith bargaining efforts required by Section 8(a)(5) and 8(d) of the Act, even after voluntarily entering into a settlement agreement constitutional grounds including, inter alia: the Board's failure to appoint counsel for Respondent; the failure to grant Respondent a speedy trial; the denial of Respondent's request for a trial by jury in a Federal court; the impossibility of a fair judgment due to administrative bias; and the Board's lack of jurisdiction. These motions are denied as lacking in merit. As to the constitutionality of the National Labor Relations Act and this Board's procedures thereunder, we refer Respondent to N.LR.B. v. Jones d Laughlin Steel Corp., 301 U.S. 1 (1937). 1126 BETRA MANUFACTURING COMPANY in which it agreed to do so. Respondent has thereby displayed a total disregard for the rights of its employees to enjoy the fruits of their representation by the good-faith negotiation of a contract. Thus, Respondent has effectively prevented its employees from realizing the benefits of their election choice. Merely to refer the parties back to the bargaining table, without more, is not an adequate remedy. Under these circumstances, we conclude that some additional measures are necessary to assure the employees a continued and informed communication with their elected representative. Therefore, we shall order that Respondent, in addition to the remedy ordered by the Administrative Law Judge, mail the attached notice to all unit employees, grant the Union reasonable access to its bulletin boards, and make available to the Union a list of the names and addresses of all unit employees to be kept current for a period of 1 year. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Betra Manufacturing Company, San Jose, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Upon request, bargain collectively in good faith with the above-named labor organization as the exclusive representative of all Respondent's employ- ees in the appropriate unit described below and, if an agreement is reached, embody such understanding in a signed agreement. Respondent's obligation to bargain with the Union shall extend for I year from the date it first commences to bargain in good faith. The unit is: All employees employed by the Employer at its San Jose, California facility; excluding profes- sional employees, salesmen, guards, office clerical employees, and supervisors as defined in the Act." 2. Insert the following as paragraphs 2(b), (c), and (d) and reletter the subsequent paragraphs accord- ingly: "(b) Mail a signed copy of the attached notice marked "Appendix B" to each of its employees in the 3 In Crystal Springs Shirt Corporation, 229 NLRB 4 (1977), a case wherein an employer similarly delayed contract conclusion through surface bargaining, I indicated that I would grant the union reimbursement for above-described unit immediately upon receipt thereof from the Regional Director for Region 32. "(c) Upon request of the Union, made within I month of the date of this Decision, immediately grant the Union and its representatives reasonable access, for the period of the collective-bargaining negotiations, to its bulletin boards and all places where notices to employees are customarily posted. "(d) Upon request of the Union, made within I month of the date of this Decision, make available to the Union a list of the names and addresses of all unit employees currently employed and keep such list current for a period of I year thereafter." 3. In paragraphs 2(e) and (f), substitute the words "Region 32" for "Region 20." 4. Substitute the attached notice for that of the Administrative Law Judge. MEMBER MURPHY, dissenting in part: I agree with my colleagues' findings and conclusion that Respondent violated Section 8(a)(5) of the Act by engaging in surface bargaining without any real intent of reaching a contract accord. However, unlike my colleagues, I agree with the General Counsel that something more than our usual remedial order is necessary in the circumstances here, and I would therefore grant his request for an extraordinary remedy. Where an employer continually circumvents the possibility of finalizing extended contract negoti- ations by insisting on contract provisions which would effectively emasculate the Union as the bargaining representative of its employees, particu- larly after it has failed to comply with the terms of an earlier settlement agreement, I would find an extraordinary remedy to be warranted.3 The Administrative Law Judge, in his findings adopted herein, concluded that Respondent entered into contract negotiations with an intent to subvert the bargaining process, announced to the Union that such was its intention, and, by its conduct in the ensuing 22 meetings with the Union, insured the intended result. At the initial bargaining session where it announced that it would give up no prerogatives which were management's prior to the Union's certification, and that the end result would be the same as before the Union was elected, Respondent made manifest its intention to negate the election choice of its employees. It then proceeded in a 17-month attempt to do so. Respondent was consistent throughout the bar- gaining in insisting on nonmandatory subjects and on provisions inherently repugnant to any union seeking responsibly to represent the employees. Such expenses incurred as a result of the respondent's unfair labor practices. I would likewise do so here. 1127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD items included a provision requiring the Union to post a performance bond to assure payment of liquidated damages in the event of breach of a no- strike clause, a provision automatically invalidating the contract if there were any change in the Union's constitution, bylaws, or affiliation, and a provision likewise invalidating the contract if there were any change at all in Respondent's ownership. Respon- dent additionally insisted on items which are in direct conflict with the bargaining obligation. Thus, throughout the 22 bargaining sessions Respondent continued to insist on such contract provisions as, inter alia, the unilateral right to change wages by 10 percent, the unilateral right to change virtually all terms and conditions of employment and work rules, and a provision requiring the Union to prove its majority status each year before entering into new contract negotiations. The impact of such provisions would essentially be to overrule the Board's certifica- tion of the Union as the employees' duly selected bargaining representative. Further, by entering into a settlement agreement on April 27, 1976, with which it subsequently failed to comply, Respondent both delayed remedial action against it and denied its employees the benefits of their bargaining represen- tative for an additional year.4 In denying the General Counsel's request for a Tiidee remedy, the Administrative Law Judge opined that Respondent's flagrant unfair labor practices would not be adequately remedied by the customary imposition of a bargaining order and the posting of a notice. He found, however, that the Tiidee case is factually distinguishable and that no other Board precedent exists to support such a remedy. My colleagues on the majority, by adopting the Adminis- trative Law Judge's denial of an extraordinary remedy for lack of precedent, thereby again fail to create such a precedent. I would not. While my colleagues recognize that merely sending the parties back to the bargaining table is not an adequate remedy in the circumstances here, they nonetheless "deem it inappropriate to apply the requested monetary remedy awarded in the Tiidee case." Yet this Respondent has depleted the Union's time and financial resources, as well as expended the time of Federal mediators and this Agency, in its duplicitous bargaining charade. The depletion of such resources, in conjunction with the denial of employee rights and the resultant weakening of the newly selected Union's position vis-a-vis the employ- ees it represents, are, in my view, at least as egregious as refusing to meet with the union at all as did the respondent in Tiidee. In light of Respondent's demonstrated hostility toward the Union and the concept of collective bargaining, and its failure to comply with the previous settlement agreement, I do not think it likely that Respondent will return to the bargaining table and bargain in good faith without some more compelling remedy. Therefore, in order to more fully effectuate the policies of the Act, I would grant the remedy requested by the General Counsel.5 Accordingly, in addition to the remedial provisions granted by the majority, I would require Respondent to reimburse the Board and the Union for all costs and expenses incurred in the investigation, prepara- tion, presentation, and conduct of the case. I would also require Respondent to reimburse the Union for its costs incurred during the course of its collective- bargaining negotiations with Respondent, as request- ed by the General Counsel. 4 The Regional Director withdrew approval of the settlement agreement on October 21, 1976, and issued an amended complaint on March 3, 1977. 5 This is not to say that every surface bargaining case would justify the imposition of an extraordinary remedy. However, in this case and in the circumstances described above, I think it is appropriate. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government You will recall that we have previously posted a notice similar to this one wherein we made a commitment to you to obey the law. After a formal hearing at which all parties had an opportunity to present evidence and state their positions, it has been decided by the National Labor Relations Board that we did not live up to our promises contained in the first notice, and that we have continued to violate the National Labor Relations Act. Therefore, we have been ordered to post this notice. We are hereby ordered to advise you that we intend to honor the commitments made to you in this notice. In the event that we do not, we may thereby become subject to substantial monetary fines and other sanctions imposed by a United States Court of Appeals until our obligation to you under the law is satisfied. The Act gives all employees the following rights: To engage in self-organization To form, join, or assist unions To bargain collectively through represen- tatives of their own choosing To engage in activities together for purposes of collective bargaining or other mutual aid or protection To refrain from any or all such activities, except to the extent that the employees' bargaining representative and an employer have a collective-bargaining agreement 1128 BETRA MANUFACTURING COMPANY which imposes a lawful requirement that employees become union members. WE WILL NOT do anything that interferes with these rights. WE WILL NOT refuse to bargain collectively in good faith with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, as the exclusive representative of our employees in the appropriate unit described below concerning rates of pay, wages, hours of employment, and other terms and conditions of employment. WE WILL NOT insist that the Union post a security bond as a condition to our entering into a collective-bargaining agreement with the Union. WE WILL NOT insist to the point of impasse on a proposed management rights clause or other clauses granting us the unilateral right to deter- mine hours of work, working conditions, merit increases, and other terms and conditions of employment in the unit described below. WE WILL NOT insist to the point of impasse on a collective-bargaining contract clause which would nullify the entire collective-bargaining agreement in the event of a change in the Union's affiliation, constitution, or bylaws. WE WILL NOT insist to the point of impasse on a contract clause granting us the unilateral right to make and change work rules affecting employees' condition of employment. WE WILL NOT otherwise engage in surface bargaining or other collective bargaining not in good faith, without real intention to reach a meaningful collective-bargaining agreement with the Union. WE WILL, upon request, meet and bargain collectively in good faith with a duly authorized representative of the Union concerning our employees' rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agree- ment. Our obligation to bargain with the Union shall extend for 1 year from the date we first commence bargaining in good faith. The unit is: All employees employed by the Employer at its San Jose, California facility; excluding professional employees, salesmen, guards, office clerical employees, and supervisors as defined in the Act. WE WILL mail a signed copy of this notice to all our employees in the appropriate bargaining unit. WE WILL, upon request, grant the Union reasonable access to our bulletin boards during contract negotiations. WE WILL, upon the request of the Union, immediately give to the Union a list of the names and addresses of all our employees in the appropriate bargaining unit, and WE WILL keep the list current for a period of I year. BETRA MANUFACTURING COMPANY DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge: Pursuant to notice, a hearing with respect to this matter was held before me in San Jose, California, on March 17 and 18, and April 4, 1977. The initial charge was filed on February 4, 1976, by International Association of Machin- ists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504 (herein called the Union). An amended charge was filed by the Union on March 3, 1976. The initial complaint, issued March 31, 1976, alleges violations of Section 8(aX5) and (1) of the National Labor Relations Act, as amended (herein called the Act). On April 27, 1976, the Regional Director for Region 20 of the National Labor Relations Board (herein called the Board) approved an all-party settlement agreement and withdrew the complaint and notice of hearing. Thereafter, on October 21, 1976, the said Regional Director issued an order withdrawing approval of settlement agreement, reinstating complaint, and notice of hearing, as a result of Respondent's alleged failure to discharge its obligations under the settlement agreement. On March 3, 1977, an amended complaint was issued, alleging violations of Section 8(a)(5) and (1) of the Act. Respondent's answers to the complaint and amended complaint, duly filed, deny the commission of any unfair labor practice.' The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and from Respondent. Upon the entire record, and based on my observation of the witnesses and consideration of the briefs submitted, I make the following: I Respondent's answer to the amended complaint contains a request for appointed counsel as a result of professed inability to afford counsel; for a trial by jury; for a trial by a Federal court; for direct appeal from the Administrative Law Judge's decision to a Federal court rather than to the Board; and for dismissal of the matter as a result of failure to be accorded a speedy trial. These requests, renewed by Respondent at the hearing, were denied. Thereafter, Respondent filed a motion with the United States District Court for the Northern District of California seeking relief from certain adverse rulings of the Administrative Law Judge, namely, the failure to appoint counsel and grant Respondent a trial by jury. On April 8, 1977, the court issued its judgment summarily denying Respondent's petition. On June 30, 1977, Respondent filed with the court both a notice of appeal and a motion requesting extension to file late notice of appeal. These documents are currently pending before the court, no disposition thereof having been made to date. 1129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Respondent is a sole proprietorship engaged at its San Jose, California, facility in the business of manufacturing nonferrous castings and machine metal parts. Record evidence establishes that in the course and conduct of its business operations during calendar year 1975, Respondent sold goods and supplies valued in excess of $50,000 to firms within the State of California, which firms, during calendar year 1975, met the Board's applicable direct outflow jurisdictional standards for the assertion of jurisdiction. I therefore find that Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was stipulated by Respondent at the hearing that the Union is, and has been at all times material herein, a labor organization with the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Issue The principle issue raised by the pleadings is whether Respondent, by its overall course of conduct in contract negotiations, has refused to bargain collectively in good faith with the Union, the certified collective-bargaining representative of Respondent's employees, concerning wages, hours of work, or other terms and conditions of employment. B. The Facts 1. Background Respondent is a sole proprietorship engaged in the business of manufacturing nonferrous castings and ma- chine metal parts, with its office and place of business located in San Jose, California. Respondent's customary employee complement totals six to eight employees. On April 11, 1975, the parties entered into a Stipulation for Certification upon Consent Election in Case 20-RC-12685, and pursuant thereto a representation election was held on May 8, 1975, at which time a majority of Respondent's employees in the agreed-upon unit 2 designated and selected the Union as their exclusive collective-bargaining representative. Thereafter, on May 16, 1975, the then Acting Regional Director certified the Union as the exclusive collective-bargaining representative of Respon- dent's employees in the aforementioned appropriate unit. 2 All employees employed by Respondent at its San Jose, California, facility, excluding professional employees, salesmen, guards, office clerical employees, and supervisors as defined in the Act. 3 "Agreement by and between ----- , party of the first part, hereinafter referred to as the Employer, and International Association of Machinists and Aerospace Workers, District Lodge No. 93, party of the second part, hereinafter referred to as the Union." 2. The negotiations - June 9, 1975, through January 19, 1976 On May 23, 1975, Union Business Representative John DeCarli sent Respondent a letter requesting the com- mencement of negotiations, and enclosed as an initial proposal the then current 1974-77 Independent Machine and Manufacturing Agreement between the Union and approximately 100 employers in Santa Clara County, the county in which Respondent's facility is located. Through- out the entire course of bargaining DeCarli, for the Union, and Mark J. Thomas, for Respondent, remained the principal spokesmen for the parties. Other business representatives, sometimes accompanied by unit employ- ees, also attended the bargaining sessions on behalf of the Union, while Respondent's foremen would often attend negotiations on behalf of Respondent. Various other unit employees would also attend negotiations, however, the record does not disclose whether their interests were specifically aligned with one party or the other, or whether they were merely impartial observers. The first set of negotiations, prior to the settlement agreement, com- menced on June 9, 1975, and consisted of 13 negotiating sessions as follows: June 9 and 16, July 14 and 28, August 5, 18, and 25, September 5 and 24, and October 6 and 21, 1975, and January 5 and 19, 1976. DeCarli commenced the June 9, 1975, session by asking Thomas whether he had looked over the aforementioned proposed Independent Machine and Manufacturing Agreement previously submitted to Respondent. Thomas replied that he had looked it over "and it stinks," adding that, "You will never get me to sign any contract." The tenor of negotiations having thus been immediately established, DeCarli proceeded to engage Thomas in a discussion of each contract proposal seriatun Thomas objected to the proposed introductory para- graph3 and purpose of agreement,4 stating that there was no need for such language, and quickly dismissed the proposed standard union-security clause with the remark, "You will never get me to sign a contract with the union security clause in it." The Union's wage proposal contained hourly rates of pay for various job classifications. Thomas objected to this stating that he would be the sole judge of the wages which Respondent would pay. Regarding an apprenticeship training provision whereby the employer would give employees an opportunity to acquire additional skills thus qualifying them for higher pay classifications, Thomas expressed his opinion that such a provision "stinks" and that the Union should provide all such training. Thomas further stated, when confronted with the respective applicable proposals, that he would not agree to contract seniority provisions as he did not philosophically believe in the principles of seniority; that he may or may not provide more than 2 weeks' vacation with pay after 10 years of service depending upon the particular employee in question; that although he currently provided his employ- 4 "Purpose of Agreement. The purpose of this Agreement is to promote continuity of friendly relations between the Employer and the Union and to define wages, hours and conditions of employment for employees covered by this agreement." 1130 BETRA MANUFACTURING COMPANY ees with the paid holidays enumerated in the contract, he did not want such a clause included in the contract and that if a particular employee did not deserve a paid holiday Thomas retained the right to refuse such payment; that the contract's union activity clause, assuring nondiscrimina- tion for engaging in union activity and additionally containing provisions regarding Respondent's recognition of shop stewards, was unacceptable; that he would allow authorized business representatives access to the plant for the purpose of carrying out the terms of the agreement, if at all, only during employees' lunch breaks; and that the Union .would not be given bulletin board privileges at the plant. During the discussion of the proposed management rights clause contained in the Union's proposal Thomas stated that he desired certain nonunit employees, including the plant foreman, to perform unit work. When DeCarli stated that they would thereby have to join the Union, Thomas stated, "there is nobody in my plant that is going to join the Union." The remainder of the contract provisions were discussed, Thomas refusing to agree to any item. In addition, Thomas stated that he was interested only in a I-year contract. DeCarli requested that Thomas submit counterproposals and asked for a list of Respon- dent's employees along with their classifications and rates of pay. The next meeting was held on June 16, 1975. The Union's proposals were again discussed, Thomas agreeing to none of them. Thomas furnished the Union with a list of Respondent's current employees and their hourly rates of pay. In addition, Thomas made wage and classification proposals, establishing a "wage range" for each classifica- tion within the foundry and machine shop, the range for each classification varying between $1 to $2 per hour. Thomas stated that he would unilaterally determine the specific rate of pay for each employee within the given range. The next meeting was held on July 14, 1975. At this meeting Thomas furnished DeCarli with a written list of factors which Thomas would consider in unilaterally establishing an employee's wages within the aforemen- tioned wage range, namely, quality of work, quantity of work, dependability, job knowledge, cooperation, initia- tive, attitude, safety habits, attendance, working condi- tions, learning ability, adaptability, physical conditions, and personal habits. DeCarli suggested that the services of the Federal Mediation and Conciliation Service (FMCS) be utilized by the parties during further negotiations, but Thomas saw no need for such intervention at that time. At the July 28, 1975, meeting Thomas handed DeCarli a list of the current employees, then six in number, their wage rates and dates of hire. This document, when compared with the wage rates furnished the Union on June 16, shows that three employees received a 25-cent-per-hour wage increase between June 16 and July 28.5 Further, Thomas submitted a proposed management rights clause6 which, in effect, operated as a complete retention of s There is no complaint allegation in this regard. 6 Additions to this clause were made by Thomas dunng the course of bargaining, the final clause appearing in the document attached hereto as "Appendix A." virtually all matters pertaining to employees' wages, hours, and working conditions as sole prerogatives of manage- ment, which matters, according to the proposal, would not be subject to a contract grievance procedure. Thomas stated that this clause was not yet complete, and that he intended to make additions to it as bargaining progressed. Thomas agreed at this meeting to a union-proposed "non- discrimination" clause providing for mutual cooperation in establishing and maintaining equal employment opportuni- ty and affirmative action programs. At the next meeting, August 5, 1975, Thomas made additional proposals: an introductory paragraph stating the names and addresses of the parties to the agreement; an overtime proposal defining the workweek and providing for time and a half after 40 hours of work during the workweek; and a revised management-rights clause which specified nine additional areas as "unilateral rights" of management. The meetings of August 18 and 25, 1975, were apparently of brief duration and uneventful. Thomas was unable to attend the August 25 meeting, and DeCarli met with Respondent's foremen on that occasion. The next meeting was held on September 5, 1975. Thomas handed DeCarli an illegibly typewritten vacation proposal that had to be read through a mirror. DeCarli pointed out this difficulty to Thomas and Thomas treated the matter as a joke stating something to the effect that it could be deciphered. DeCarli then took the proposal to the restroom and read it with the use of the restroom mirror.7 DeCarli stated his belief that Thomas was engaging in stalling tactics and suggested the services of a Federal mediator. At the next meeting, September 24, 1975, Thomas handed DeCarli a proposal for a complete contract and stated that the Union had to accept it in its entirety by October 5, 1975, giving no reason to DeCarli for this demand. Thomas said he had changed his mind about his prior proposals, and that they had been superseded by the current proposed contract. During discussions of Respon- dent's proposal, which contained no contract grievance procedure, Thomas acknowledged that the Union had the right to take all grievances to "the proper courts." However, DeCarli objected to this verbal proposal and insisted upon an appropriate grievance procedure. Regard- ing Respondent's management rights proposal, Thomas added two additional unilateral rights of management and stated that the management rights clause could be used to nullify any section of the contract. Respondent's proposal included an "open shop" provision; a provision specifying that classification of employees and their wages would be determined by management based on merit within wage ranges varying between S1 and $3 per hour; a provision that all wage rates may be lowered by management 10 percent due to business conditions or the competitiveness of the labor market upon giving the Union and the employees 10 days' notice; a no-strike, no-lockout provi- sion, with liquidated damages of $50 per day per employee should this provision be breached; a provision whereby if 7 While Thomas, at the hearing, stated that the printing had been inadvertently reversed as a result of the carbon being incorrectly inserted in the typewriter, he offered no explanation for failing to offer DeCarli the use of the original. 1131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's "ownership" changes in any respect the contract becomes null and void; a provision nullifying the contract if there is any change in the Union's constitution, bylaws, or affiliation; and a proposed I-year term of agreement. The Union voiced its objection to the $50-per-employee liquidated damages provision in the event of a strike or work stoppage and said the Respondent would have to go to court to collect such damages. Regarding the ownership clause, DeCarli asked Thomas whether, if Thomas sold, for example, I percent of the company to his son or foreman, this would constitute a change in ownership of sufficient magnitude to set aside the contract. Thomas stated that DeCarli's interpretation was accurrate, and also said that any change in the IAM constitution, under which the Union operates, would nullify the contract. At the October 6, 1975, meeting, Thomas withdrew Respondent's contract proposal of September 24, 1975, for the reason that it had not been accepted by the requisite deadline, and submitted a new contract. Once again Thomas imposed a new deadline, giving the Union until October 16, 1975, to accept the contract in its entirety, and stating that no section thereof could be changed or even discussed. DeCarli asked Thomas about the language discussed at the previous meeting regarding the Union's right to take any grievance to an appropriate court, which language was absent from the current proposal, and Thomas stated that such language was no longer being proposed. Thomas had deleted the vacation section which appeared in Respondent's prior proposal and said that this item would be handled under "work rules." 8 Similarly, Thomas stated that the matters of holidays and attendance requirements, also not included in Respondent's proposal, would be subject to the work rules concept and would therefore be outside the contract. Respondent's October 6, 1975, contract proposal, in addition to the liquidated damages provision contained in the preceding proposal, contained a demand for the Union's posting of a $10,000 security bond.9 DeCarli said the Union would never post a security bond, and again asked that Thomas agree to the services of a Federal mediator, Thomas apparently agreeing to such request. The next meeting was held on October 21, 1975. A Federal mediator was present. Thomas announced that Respondent's October 6, 1975, proposal was no longer on the table as the Union had not signed it by the required date. Thomas further stated that as he intended to never agree to any union proposals, there remained, at the time, no proposals from either party on the table warranting further discussion. In an effort to make some initial progress, DeCarli withdrew the Union's proposals on sick leave, dental plan, and pension plan, and stated that such contract items would not thereafter be sought by the Union. Thomas did not respond. DeCarli said that the Union was available and willing to meet with Respondent 8 The basis of Respondent's work rule concept was that Respondent wanted the unilateral right to institute and modify work rules and that such rules would not be included in or contemplated by the collective-bargaining agreement. Thomas apparently believed that work rules would be defined as any matter whatsoever, including any item concerning employees' wages, hours, and conditions of employment. 9 The applicable proposed contract language is as follows: "Since, at the at any time on any day, and Thomas seized upon this statement and retorted, "Okay, we will meet New Year's day." The Union felt compelled to agree, but the meeting date was later changed to January 5, 1976, apparently by FMCS. At the January 5, 1976, meeting, also attended by the Federal mediator, Thomas announced that he had no proposals to make and stated that he had told his employees that although they voted for union representa- tion there would be no changes whatsoever in employees' working conditions or anything else as a result of bargaining with the Union. Again at the next meeting, January 19, 1976, Thomas said that he had nothing to offer or propose, that he would never accept any union proposals, and that future meetings would not be productive but rather would occasion even more stringent proposals by Respondent. DeCarli said that the Union had no alternative but to file an appropriate charge with the Board. 3. The settlement agreement and efforts to obtain compliance therewith Subsequent to the filing of the charge on February 4, 1976, an informal all-party settlement agreement was approved by the Regional Director for Region 20 on April 27, 1976. The settlement agreement provides, in substance, that Respondent will not refuse to bargain collectively in good faith with the Union; will not insist that the Union post a security bond as a condition to entering into an agreement; will not insist to the point of impasse upon a proposed management rights clause granting Respondent the unilateral right to determine hours of work, working conditions, merit increases, and other terms and conditions of employment; will not insist to the point of impasse on a contract clause which would nullify the entire contract in the event of a change in the Union's affiliation, constitu- tion or bylaws; and that Respondent will meet and bargain with the Union in good faith concerning employees' rates of pay, wages, hours of employment, and other terms and conditions of employment. In order to effectuate compliance, the Compliance Officer of the Regional Office sent the parties a letter, dated May 3, 1976, requesting on a regular, continuing basis detailed information regarding the parties' ensuing bargaining negotiations. The Compliance Officer directed further letters to Respondent, stating, inter alia, that it appeared Respondent was not bargaining in good faith but rather was obstructing the bargaining process, and was putting itself in the unfortunate position of causing the settlement agreement to be vacated and the complaint reinstated. In addition, the Compliance Officer suggested that Respondent seek competent assistance, including the services of FMCS. meeting of Sept. 24, Dwight Reed of the Union negotiating team stated that we would be required to sue to collect any money due under this section it is therefore required that the Union deliver at the time of the contract signing a bond in the amount of S 10,000 to be paid to Betra Mfg. Co. In the event that within 10 days after demand is made for payment and it is not paid, the bonding company will pay the amount required within 10 additional days." 1132 BETRA MANUFACTURING COMPANY As mentioned previously, by order dated October 31, 1976, the Regional Director's approval of the settlement agreement was withdrawn and the original complaint and notice of hearing was reinstated. 4. The continued negotiations - May 25 through November 3, 1976 Upon the filing of the charge negotiations were discon- tinued and were not resumed until May 25, 1976, subsequent to the approval of the settlement agreement. Thereafter the parties, represented by the same individuals, met and bargained on the following dates: May 25, June 7 and 22, July 6, August 5 and 30, October 12 and 19, and November 3, 1976. At the outset of the May 25, 1976, meeting, DeCarli handed Thomas the Union's original proposal, consisting of the 1974-77 Independent Machine and Manufacturing Agreement, stating the Union's position that as a result of the settlement agreement bargaining would begin anew, and that the Union desired to once again discuss each section of the proposed agreement. Thomas said that he had already seen the contract and that there was no need to meet if the Union had no other proposal. Despite Thomas' opposition, the parties apparently proceeded to discuss the contract. Thomas proposed an introductory paragraph acceptable to the Union, containing the parties respective names, and, at one point during the meeting Thomas was asked to initial or sign off that section. Thomas declined, stating that he might want to change the language as negotiations proceeded, that agreement on all items was tentative, and that no portion of the contract would be finally agreed to until agreement was reached on an entire contract. Thomas rejected the proposed "Purpose of Agreement" section; proposed an "open shop" clause; rejected the Union's wage proposal and renewed the identical wage proposal advanced by Respondent during the presettlement bargaining; and rejected the Union's training proposal stating that he would never agree to a training program and that it was the Union's job to train employees. DeCarli requested Thomas to prepare and furnish at the next meeting counterproposals to each section of the Union's proposals. Thomas refused to do so. The next meeting was held on June 7, 1976. DeCarli stated that he had received a copy of a particular letter from the Compliance Officer to Thomas, and asked Thomas whether, as suggested by the Compliance Officer, he was going to request bargaining assistance from FMCS. Thomas said no. DeCarli reiterated that the Union agreed to the introductory language proposed by Thomas at the previous meeting and requested Thomas to sign off that item. Thomas again said he would not sign anything off, and that all items would be subject to change until final agreement was reached. Thomas stated that he was continuing to negotiate because he had been threatened by the NLRB and that he was innocent of past bad-faith bargaining. DeCarli again proposed the aforementioned "Purpose of Agreement" clause, and Thomas replied that such was unnecessary. However, Thomas suggested other language which was unacceptable to the Union. Thomas refused to agree to sign off the jurisdiction section of the contract even though the Union tentatively agreed to Respondent's jurisdictional proposal, Thomas again stating that he did not want to sign anything as he may want to change it later. DeCarli stated that, pursuant to instructions from the Compliance Officer, Thomas was required to submit written proposals. Thomas said that the NLRB didn't know what it was doing, that the law does not require written proposals and he wasn't about to submit any, and that the NLRB was union oriented and he had no chance of getting a fair shake. Further, Thomas made a profane utterance regarding the Compliance Officer and stated the only real authority the NLRB had over him was to take him to Federal court. At the next meeting, June 22, 1976, Thomas reiterated, in response to the Union's request for a seniority clause, that he would never agree to a seniority clause; that vacations would be included in Respondent's work rules and would therefore not be a part of the collective-bargaining agreement; that holidays would also be included in the work rules so that he could have the flexibility to unilaterally determine who would receive holiday pay; and that, in addition, leaves of absence would be treated under work rules. Thomas further said he would not recognize shop stewards. DeCarli suggested that since Thomas continued to insist upon putting such important matters concerning wages, hours, and working conditions outside the operative provisions of the contract, Respondent should make a definitive proposal in this regard, and requested that Thomas propose language establishing a committee of employees and representatives of the compa- ny to jointly determine the work rules. Thomas suggested that the Union prepare such language, and DeCarli agreed to do so. Thomas said his wage proposal remained the same as previously submitted, namely, that wages would be subject to a merit system under Thomas' unilateral control, and would also be governed by the supply of and demand for labor in the market place. At the July 6, 1976, meeting, DeCarli proposed language establishing a work rules committee. The committee was to consist of two individuals selected by the employees and two individuals selected by Respondent, and would establish work rules applicable to all employees. Thomas said the proposal appeared satisfactory but that he contemplated some changes and would reply at the next meeting. Regarding the Union's proposal on shop ste- wards, Thomas felt his shop was not large enough to warrant the services of a shop steward. DeCarli assented to this, and agreed to withdraw the said proposal. Thomas refused to allow the union bulletin board privileges, stating that the bulletin board was cluttered enough with state and Federal regulations and that the Union could contact the employees by mail. Thomas objected to the Union's proposal on plant visitation, stating that it was improper to interrupt employees' work during working hours, but proposed language permitting contact with employees before or after working hours or during the employees' lunch break. At the August 5, 1976, meeting, Thomas rejected the Union's work rules proposal, stating that while employees could participate and suggest ideas on their own time, he wanted to reserve to himself the sole right to make the final 1133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision regarding the work rules to be established. DeCarli stated that this was unacceptable, and that he had been led to believe by Thomas at the prior meetings that employees would have a substantial voice in the work rules to be established. Thomas stated that the 60-day notice posting period required by the settlement agreement had expired, and that he was therefore required to make no further reports to the Compliance Officer. He enumerated three methods of bringing an end to negotiations, namely, the Union sending a letter to Respondent disclaiming interest in representing Respondent's employees; the employees sending a letter to both Respondent and the Union stating that they no longer desired representation; and a decertification election. DeCarli stated that the expiration of the notice posting period did not relieve Respondent of its bargaining obligation. Thomas replied that was a bunch of bull and he did not have to negotiate further. Thomas again refused to negotiate contract language regarding vacations, stating that he would not agree to anything in the contract obligating him to pay specific amounts for vacation pay. Elaborating, Thomas said that if he felt he was not financially able to pay employees their vacation pay he wanted the unfettered right to refuse to do so, and that, therefore, vacations would be covered by work rules, rather than under the contract. DeCarli asked Thomas what he thought negotiations were all about. Thomas replied that no matter what happens in negotia- tions he would not surrender any of the prerogatives of management that he had enjoyed prior to the Union, that negotiations would not result in any changes from those conditions existing previously, and that he was not going to place a financial burden on Respondent by agreeing to monetary provisions on a long term contract basis, but rather would include such matters in work rules thus avoiding any enforceable financial obligation. At the August 30, 1976, negotiating session, in the presence of a Federal mediator, DeCarli announced to Thomas that, in the interest of reaching a speedy resolution of the matter, the Union was withdrawing numerous items from its original proposal. Thereupon DeCarli handed Thomas a contract proposal from which had been deleted union proposals regarding area uniformity; training; shift premium; reporting, minimum and callback pay; shift transfers; traveltime; leaves of absence; bulletin boards; ownership obligation; voluntary plant shutdown; jury duty; pension; and cost of living. There was considerable discussion of the Union's revised contract proposal, and apparently, some areas of general agreement. Thomas stated that he would not agree to the proposed arbitration clause because he did not like arbitrators, and requested that under the proposed validity of agreement clause any reference to governmental agencies should be deleted because he disliked governmental agencies. No items were 10 Prior to this time there had apparently been a similar petition filed with the Board. The petition was apparently dismissed by the Regional Office and the appeal of the dismissal denied by the Board. "L The text of the five items in dispute is set out in "Appendix A" attached hereto. 12 Theretofore the Regional Director had withdrawn approval of the settlement agreement and had reinstated the original complaint. specifically agreed to at the meeting, and Thomas stated he would submit counterproposals at the next meeting. The next meeting occurred on October 12, 1976. A Federal mediator was again present. On September 21, 1976, Thomas had brought a contract proposal to DeCar- li's office, and at the October 12, 1976, meeting DeCarli asked Thomas if the submitted proposal was a final proposal or whether Thomas would be willing to engage in further negotiations. Thomas stated that he was there to negotiate, and DeCarli replied that he was not interested in wasting any more time and wanted to quickly reach agreement. Thereupon, DeCarli agreed to approximately 24 items in Respondent's proposed contract, requested certain additional changes, and asked that another meeting be scheduled as soon as possible to wrap up the agreement. At the next meeting, on October 19, 1976, Thomas submitted a proposal incorporating some of the changes requested by the Union at the prior bargaining session. Provisions concerning holidays and vacations were includ- ed in the contract, Thomas having apparently abandoned his position that these items would be subject to the work rules section of the contract. There was discussion on the remaining open issues and both parties apparently stated that their final respective positions would be advanced at the next meeting. The final meeting was held on November 3, 1976. At the outset of the meeting an employee handed DeCarli a petition signed by two employees stating that they no longer desired to be represented by the Union.10 DeCarli told Thomas that he had read Respondent's proposal in its entirety and could accept all of the sections except for a portion of section 4, the entirety of sections 15, 16, and 20, and portions of section 23.11 DeCarli presented the Union's position on each objectionable item, and stated that insistence on such items constituted bad-faith bargaining. The Federal mediator, in apparent agreement with the Union's announced position, stated that if Respondent would withdraw or sufficiently modify the five items objected to by the Union another negotiating meeting would be scheduled. If not, FMCS would withdraw its services and the matter would be litigated by the Board.12 Thomas then stated that he would only be willing to withdraw the objectionable portions of section 23. This meeting concluded, according to DeCarli's minutes of the meeting, "with everyone understanding that Mr. Thomas was to contact the FMCS for the next meeting provided those five items were removed from the table. Otherwise the next meeting between the parties would be in court." No such communication from Thomas evidencing an intent to withdraw or modify the provisions in question was forthcoming. l3 13 The foregoing discussion of the bargaining meetings and proposals presented is largely based upon the credited testimony of DeCarli, supplemented by DeCarli's detailed minutes of certain meetings. DeCarli favorably impressed me as a credible witness, and to the extent that the testimony of Thomas may differ with that of DeCarli in any material respect, I credit DeCarli. 1134 BETRA MANUFACTURING COMPANY C. Analysis and Conclusions The meaning of good-faith bargaining was defined by the Court in N.LR.B. v. Reed & Prince Manufacturing Company, 1 4 as follows: The respondent .. was legally bound to confer and negotiate sincerely with the representatives of its employees. It was required to do so with an open mind and a sincere desire to reach agreement in a spirit of amity and cooperation. The cases setting forth this obligation are many, and it is well settled that a mere formal pretence at collective bargaining with a com- pletely closed mind and without this spirit of co- operation and good faith is not a fulfillment of this duty. Thus, "The Act not only requires that the parties go through the motions of negotiation, but it also demands that they negotiate in good faith,"'1 and the right not to agree or concede, or to refuse a particular proposal or make a concession, may not be utilized as a cloak "to conceal a purposeful strategy to make bargaining futile or fail."16 Further, the mere fact that a party bargains on certain issues in an attempt to reach overall agreement, while at the same time frustrating agreement on one or more substantial issues, does not suffice to fulfill the requirements of good-faith bargaining." At the initial bargaining session Thomas stated to DeCarli that the Union would never get him to sign a collective-bargaining agreement. Thereafter throughout the 22 bargaining sessions over a protracted period of time, Thomas overtly exhibited the utmost disregard for the collective-bargaining process and engaged in conduct totally inconsistent with even a modicum of good-faith bargaining. Thomas' intolerance of the aforementioned principles of collective bargaining is clearly reflected by his intransi- gence in including even so innocuous a clause in the contract as a statement to the effect that the purpose of the agreement is to promote continuity of friendly relations between the parties. Similarly, Respondent's refusal to allow the Union permission to use the bulletin board is indicative of such a noncooperative bent. Such attitude is further evidenced by language proposed in Respondent's last contract proposal dated October 19, 1976: The purpose of this contract is to put into writing the agreement by which the union and the employees secure specific and limited rights from management which at the beginning management had absolute perogative [sic ]. Thomas admittedly entered negotiations with a fixed intent not to agree to a union-security clause or to contractual seniority provisions, both mandatory subjects of bargaining, expressing his views during the course of bargaining, and also at the hearing, that he inherently "4 118 F.2d 874, 885 (C.A. 1, 1941). Is United Steelworkers of America, AFL-CIO [Roanoke Iron & Bridge Works, Inc.] v. N.L.R.B., 390 F.2d 846, 852 (C.A.D.C.. 1967). 16 N.L.R.B v. Herman Sausage Co., Inc., 275 F.2d 229, 232 (C.A. 5, 1960). disapproved of such provisions. Thereafter, throughout the entire course of bargaining, the Union's continued at- tempts to negotiate a union-security clause and a seniority clause into the contract proved futile, Thomas maintaining his fixed resolve in this regard. Likewise, commencing with the second bargaining session, and maintained throughout negotiations, Respon- dent insisted upon the unilateral right to place employees within various classifications and to determine the specific rate of pay for each employee, within a broad wage range, based upon merit determinations to be made solely by Respondent. At a later session Respondent expanded this concept by insisting upon reserving to itself the unilateral right to raise or lower wages 10 percent due to business conditions or the competitiveness of the labor market. At the fourth meeting Thomas proposed an all-inclusive management rights clause, operating as a complete reten- tion of virtually all matters pertaining to mandatory subjects of collective bargaining. Despite belabored bar- gaining and vociferous objection by the Union regarding this proposal, Respondent not only refused to make deletions therefrom but rather bolstered the proposal with additional unilateral prerogatives of management, culmi- nating in a final management rights proposal upon which, on and after November 3, 1976, Respondent continued to insist ("Appendix A," "Section 15: Management"). On two separate occasions, September 24, 1975, and October 6, 1975, Respondent imposed arbitrary deadlines, offering therefor no legitimate business justification and requiring by the announced deadline the acceptance by the Union of entire contract proposals on a take it or leave it basis. Respondent would permit no bargaining thereon, and later withdrew the said proposals as a result of the Union's refusal to accept them in their entirety by the prescribed dates. The aforementioned proposal of Septem- ber 24, 1975, contained a clause providing that any change in the Union's constitution, bylaws, or affiliation would invalidate the contract. As alleged in the complaint, such matters involving the Union's internal structure or rules constitute nonmandatory subjects of bargaining. There- fore, by insisting on such a provision dealing with relations between employees and their union, Respondent violated Section 8(a)(5) of the Act. See N.LR.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958). Likewise, under similar circumstances, Respondent's insistence upon the posting of a performance bond, also a nonmandatory subject of bargaining, constituted a per se violation of the Act, as alleged in the complaint. Scripto Manufacturing Company, 36 NLRB 411 (1941); Hall Tank Company, 214 NLRB 995 (1974). Throughout bargaining, Respondent demanded that the Union agree to a no-strike clause while refusing to agree to a contract proposal providing for arbitration of grievances. Rather, Respondent maintained throughout bargaining that should a grievance remain unresolved for a period of 30 days, the aggrieved party "may petition a court of jurisdiction to hear the case and render a decision." 17 King Radio Corporation, Inc., 172 NLRB 1051, 1068 (1968), enfd. 416 F.2d 569 (C.A. 10, 1969), cert. denied 397 U.S. 1007 (1970). 1135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's insistence upon other items is likewise indicative of bad-faith bargaining. Thus, Respondent maintained that the entire contract would or could be nullified as a result of certain contingences, namely, by a majority of employees stating in writing that they no longer desired union representation; or if, in the opinion of one of the parties, a court decision changed the meaning of the contract; or, in the event there was any change whatsoever in Respondent's ownership. Further, Respondent initially insisted that, prior to negotiating a successor contract, the Union must again prove its majority status. Such a position was withdrawn at the last meeting only after protestations from the Union, confirmed by the representations of the Federal mediator, that insistence upon such a clause was contrary to law. An examination of Respondent's contract proposals makes it abundantly clear that Respondent, from the outset, took and maintained a firm and unalterable stand on all major contract issues and even on most minor matters. Respondent exhibited by its intractable attitude and patently unacceptable contract proposals, underscored by statements during the course of bargaining to the effect that no collective-bargaining agreement would be entered into and that employees would not benefit from the advent of the Union, an intent to subvert the collective-bargaining process. Respondent's failure to make, for the most part, even arguably acceptable contract proposals cannot be attributed to lack of flexibility in the Union's position as Respondent maintains. Rather, the record evidence clearly shows that from the outset of negotiations the Union remained eager to discuss its proposals and frequently invited counterproposals from Respondent. Indeed, at the last few negotiating sessions the Union exhibited the utmost willingness to bring negotiations to fruition by agreeing that the contract would contain no form of union security, no seniority provision, no arbitration clause, and no increase in the wages paid and benefits afforded the employees. Yet, despite the Union's relinquishment of such contract provisions, generally considered to constitute the very nucleus of a viable collective-bargaining agreement, Respondent continued to insist upon patently unaccept- able provisions, including a management rights clause, a work rules clause, and an ownership clause which, under the circumstances, the Union could not, in good con- science, be expected to accept.'8 The Board's language contained in Tomco Communica- tions, Inc.,'9 has particular application to the facts of the instant case: In our opinion, Respondent's "last, best and final offer" was nothing more than a demand on the part of Respondent that the Union abdicate virtually every right it would normally possess to represent effectively the employees involved during the contract, particular- ly when not only its representation rights are decimat- ed, but the overall improvement in the employees' benefits are minimal if not nonexistent; nor can we Is The fact that the Union, in order to bring an end to the protracted and unproductive bargaining marathon, did reluctantly accept certain contract provisions does not alter the fact that such provisions, even though accepted by the Union, are indicative of bad-faith bargaining. See San Isabel Electric Services, Inc., 225 NLRB 1073 (1976). accept the contention that Respondent . . . in good faith believed that such a proposal would ever be accepted by the Union. In these circumstances, we find and conclude that the Respondent has failed to engage in good-faith bargaining as envisioned by the Act and that it thereby violated Section 8(aX5) and (1) of the Act. [Footnotes omitted.] On the basis of the foregoing, I find that Respondent entered into negotiations with an intent to subvert the bargaining process, announced to the Union that such was Respondent's intention, and, by its protracted bad-faith bargaining, insured the intended result.20 It is therefore crystal clear, and I so find, that Respondent has failed and refused to bargain in good faith during the entire course of bargaining in violation of Section 8(aX5) and (1) of the Act. N.L.R.B. v. Montgomery Ward & Co., 133 F.2d 676 (C.A. 9, 1943); Tomco Communications, Inc., supra, Reed & Prince Manufacturing Company, 96 NLRB 850 (1951), enfd. 205 F.2d 131 (C.A. 1, 1953); San Isabel Electric Services, Inc., supra, "M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527 (1960); King Radio Corpora- tion, Inc., supra. CONCLUSIONS OF LAW 1. Betra Manufacturing Company is an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent at its San Jose, California, facility, excluding professional employees, salesmen, guards, office clerical employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union was and now is the majority representative of the employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 5. By insisting during the course of bargaining that the Union agree that any change in its constitution, bylaws, or affiliation would invalidate the contract, by insisting that the Union agree to post a performance bond, by insisting upon a management rights clause or other clauses which would confer upon Respondent the unilateral right to determine virtually all terms and conditions of employ- ment, by insisting upon a work rules clause which would confer upon Respondent the right to unilaterally change work rules affecting employees' conditions of employment, and by otherwise failing and refusing to bargain in good faith, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 19 220 NLRB 636, 637-638 (1975). 20 The continuing refusal to bargain subsequent to the settlement agreement, found herein, is sufficient ground to set aside the settlement agreement. San Isabel Electric Services, Inc., supra 1136 BETRA MANUFACTURING COMPANY THE REMEDY Counsel for the General Counsel, in his very comprehen- sive and helpful brief, makes a persuasive argument for the imposition of an extraordinary remedy herein, given the egregious nature of Respondent's unlawful conduct. Requesting, inter alia, that Respondent be ordered to reimburse the Union for its expenses incurred in negotia- tions and that Respondent be ordered to reimburse both the Union and the Board for their expenses incurred in the investigation, preparation, presentation, and conduct of the instant case, the General Counsel relies on Tiidee Products, Inc.21 While it appears obvious, as argued by General Counsel, that Respondent's flagrant unfair labor practices would not be adequately remedied by the customary imposition of a bargaining order and the posting of a notice, and while I would otherwise recommend the extraordinary remedies requested herein by the General Counsel, it appears that the Tiidee case is factually distinguishable and that no other precedent is supportive of such a remedy. Consequently, I shall deny the General Counsel's request. Having found that Respondent has engaged in flagrant and pervasive unfair labor practices, both prior to and after entering into a settlement agreement providing for the posting and adherence to the provisions of a customary notice to employees, I shall recommend that it cease and desist from engaging in such or similar unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Respondent will be required to, upon request, bargain collectively with the Union in good faith and, if an agreement is reached, embody such understanding in a signed agreement, and post at its San Jose, California, facility copies of the attached notice marked "Appendix B." Upon the foregoing findings of fact, and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 22 The Respondent, Betra Manufacturing Company, San Jose, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from in any manner engaging in surface bargaining or other collective bargaining not in good faith, without real intention of reaching a meaningful collective-bargaining agreement with International Associ- ation of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 93, Local Lodge No. 504, as duly designated exclusive bargaining representative of its em- ployees in the agreed-upon appropriate unit. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of all of the Respondent's employees in the appropriate unit and, if an agreement is reached, embody such understand- ing in a signed agreement. (b) Post at its San Jose, California, facility copies of the attached notice marked "Appendix B." 23 Copies of the notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 21 194NLRB 1234(1972). 22 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. 23 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Section 4: Wages APPENDIX A All rates in these classifications may be raised or lowered by management 10% due to business conditions or competitiveness of the labor market by giving the Union and employees a ten day notice. Section 15: Management The Union recognizes those rights and responsibilities which belong solely to the company as unilateral rights, including, without limitation on the generality of the foregoing, the right to manage the company's business and to direct the working force, the right to hire employees, the right to classify employees, the right to require physical examination, the right to maintain order and efficiency, the right to extend, curtail, or terminate operations of the company, to determine the size and location of the company's plant or operations, and to determine the type and amount of equipment to be used, and the assignment of the work, the rights of owners, stockholder[s], superviso- ry, professional, technical and other employees to perform any work. The right to determine production schedules, methods, standard processes, means of manufacture and material to be used, the right to subcontract any work within or outside the plant, the right to introduce new and improved methods or facilities and to change existing methods or facilities, the right to promote or demote employees, the right to transfer employees, the right to discipline, suspend and discharge employees, layoff for lack of work, the right to determine the number of employees, the right to pay or not to pay for services not performed, the right to determine the number of shifts, the number of hours and days in the work week, hours of work, the right of scheduling work, the right to make work 1137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assignments, the right to assign overtime, the right to require employees to observe rules and regulations issued by the company, the right to demand compliance in matters of safety and discipline for non-compliance, the right to determine the products to be manufactured and set work standards, do time studies, and to maintain perfor- mance records for all jobs, the right to set incentives as long as former base hourly earnings are not reduced, the right to set quality standards and discipline or discharge for poor or sub quality. All rights, powers or authorities the company had prior to signing a union agreement are retained by the company, except those specifically modi- fied by this agreement. Section 16: Committee on Company Work Rules Employees may participate in helping to establish written work rules if they wish to do so. This will be on their own time after working hours. The employer will set up a committee to help establish formalized work rules. Service on the committee by employees will be voluntary. The committee will consist of three persons selected by the shop employees and three persons selected by management and a representative of the union. The committee will meet monthly and all rules will be put in booklet form and distributed to the employees. Each employee will sign a sign-off page in two places - one part for him and one part for the employer, as a record he received them. Any rules proposed by the company and not accepted by a majority of the committee will still be company rules but will be noted by an asterisk in the booklet with a note stating that the committee did not agree with this rule but that management felt it was necessary and thus [it] is part of work rules under management's prerogative. The committee may discuss other items concerning the works [sic] operation or the employees' welfare. Section 20: Company's Ownership In order to assure the company complete freedom in the market place the Union and employees agree that in the event of a change in composition of the business ownership the contractual relationship will cease. The new ownership will then be subject to only the rights of the employees as they may be exercised under Section 7 of the N.L.R. [sic ] "Section 7. Rights of employees. Employees shall have the right to self-organization, to form, join, or assist labor organizations. To bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(aX3)." It is further agreed that the employer will not be required to bargain about any changes or affects of changes to the employees or others because of his decision to make a change in the ownership or sale of the business. Section 23: Term of the Agreement If a majority of employees no longer wish to be represented by the signing union, they may [withdraw], by indicating so in writing. After the Union and employer have been notified by registered mail of this decision, the contract will become null and void and the Union will no longer be the representative for the purpose of collective bargaining. They will represent themselves or be able to exercise their rights in another direction under Sec. 7 of the N.L.R. Act. (sic) Also the Union agrees to prove it still represents a majority of present employees before entering into negotia- tion on another contract or extension of this contract. The majority shall be proved by an election by secret ballot held at the company place of business. The Union will be given a chance to talk to the employees for 10 minutes before the election. Management will also be given 10 minutes to speak and the union then given 5 minutes for rebuttal. Then all employees will mark ballots in privacy and deposit in sealed box. The ballots shall be counted as soon as voting is over and if a majority vote for the Union, it will continue as the employees' representative for the purpose of collective bargaining. This election shall be held on Wed., three weeks before the expiration of the contract. For this contract the election day will be Wednesday 10 a.m. 1138