Tomco Communications, Inc.

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tomco Communications, Inc. and United Electrical, Radio and Machine Workers of America (UE) Lo- cal 1412. Case 20-CA-8948 September 25, 1975 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 31, 1974, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, the General Counsel filed cross-exceptions to the Decision and a support- ing brief, the Charging Party filed cross-exceptions to the Decision and a supporting brief, and the Respon- dent filed an answering brief to General Counsel's and Charging Party's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge but only to the extent consistent herewith. The General Counsel and the Charging Party con- tend that the Respondent engaged in "surface bar- gaining," in violation of Section 8(a)(5) of the Act. In support of their contentions, the General Counsel and the Charging Party primarily rely on the man- agement-rights clause proposed and insisted on by the Respondent. The General Counsel and the Charging Party contend that this proposal, rigidly adhered to throughout negotiations, would virtually eliminate any possibility of the Union discharging its representation obligations as the representative of Respondent's employees. It is well established that an employer's insistence upon a management-rights clause does not, in and of itself, constitute a violation of Section 8(a)(5) of the Act.' However, the nature of an employer's proposals on management-rights and other terms and condi- tions of a collective-bargaining agreement are mate- rial factors in assessing the employer's motivations in the course of collective bargaining. Rigid adherence to proposals which are predictably unacceptable to the union may indicate a predetermination not to reach agreement, or a desire to produce a stalemate, 1 N.L R.B. v. American National Insurance Co., 343 U S. 395 (1952). in order to frustrate bargaining and undermine the statutory representative.' In its proposed management-rights clause, Re- spondent demanded that the Union yield any and all bargaining rights on such basic items as subcontract- ing; the establishment, changing, combining, or eli- mination of jobs; the setting of wage rates, individual salaries, and the establishing or changing of an in- centive or bonus form of compensation; and the re- location or shutdown of operations or any part there- of, as well as such matters as suspension, laying off, recalling, retiring, demoting, disciplining, and trans- ferring of the employees. An evaluation of all the Respondent's proposals herein clearly shows that Re- spondent was determined to force the Union and its members to abandon their right to be consulted re- garding practically any and all disputes that might arise during the term of the contract relating to terms and conditions of employment; i.e., to waive their statutory rights to bargain collectively. Not only are Respondent's proposals clearly designed to force the Union into abandoning its statutory rights and du- ties, but, at the same time, the totality of Respondent's proposals, particularly in the benefit or "economic" areas, indicates an intention on the part of Respondent to penalize the employees for having engaged in protected concerted activity' Respondent's proposal as to vacations originally detracted from the existing benefit by requiring an employee to work an entire year prior to being eligi- ble to receive a vacation. The existing condition was that an employee earned ten-twelfths of a day vaca- tion for every month worked. Upon objection by the Union, Respondent made the concession of agreeing to the preexisting manner of computation and ac- crual 4 Another existing condition of employment was that each employee earned 1 day's sick leave for each month he worked. Under Respondent's proposal, the employees would only be entitled to 6 days a year rather than 12 days. Thus, for example, if an employ- ee makes $5 an hour, the top rate for technicians, he would suffer the immediate loss of a fringe benefit that heretofore had an approximate value of $240. Notwithstanding this proposed loss of an exisitng fringe benefit, Respondent went even further by pro- posing and insisting on another new condition which provided that before an employee can draw sick pay he must be absent from work on a working day for 1 2 Stuart Radiator Core Manufacturing Co, Inc, 173 NLRB 125 ( 1968), Continental Insurance Co. v. N L R B, 495 F 2d 44 (C A 2, 1974). 3 Continental Insurance Co v N L R B, supra at fn. 2 This proposal is further complicated, however, by Respondent's propos- al with regard to the existing 30-day probationary period. Respondent first proposed that the probationary period be 150 days which it later reduced to 90 days with no right of vacation accrual unless the employee successfully completed the probationary period. 220 NLRB No. 87 TOMCO COMMUNICATIONS, INC. full day prior to being eligible to draw sick pay. Un- der such a proposal, an employee would have to lose at least 1 day's pay in order to draw any sick pay for subsequent days out sick, and of course any sickness or illness of only 1 day's duration would deny to the employees any sick-pay benefit at all. Thus, medical situations such as tooth extractions, diagnostic exam- inations, the 24-hour virus, etc., under the Respondent's new condition, would cause the em- ployees to suffer from the loss of heretofore existing benefits. Other of Respondent's proposals clearly show that this employer was engaging in a typical shell game, giving with one hand and taking away with the other. Thus, Respondent contends that it offered to in- crease wages 10 cents an hour each year during the term of a 3-year contract. However, an examination of Respondent's wage proposal shows that all that Respondent offered was an annual 10-cent-an-hour increase in the upper limits of the rate range for each classification, with the clearly spelled out caveat that Respondent, and only Respondent, would determine what hourly rate each employee would be paid with- in his classification. Thus, there is no assurance that any employee would even receive the 10-cent-an- hour increase purportedly proposed for the second and third years of the contract term. Respondent's proposal on the discharge provided that discharge and/or discipline shall be for just cause. However, the management-rights clause pro- vides that Respondent shall have the exclusive right to discharge, suspend, or demote any employee, and, under Respondent's proposed grievance clause, is- sues arising out of the exercise of the rights reserved to management under the management-rights clause would not be subject to arbitration. Even Respondent's attendance and punctuality bonus pro- posal contains a "sleeper" provision. Under this pro- posal, an employee who works every day in a 90-day period would receive 10 hours of additional pay for each such period to be added to his vacation pay. The Respondent proposed that time in "paid sick leave" would count as days worked. However, ex- cused absences would not count as days worked. Thus, a sick employee or one suffering from a tooth- ache and excused to go to the dentist, would not, un- der the 1-day waiting period in the sick-pay proposal, be in "paid sick leave" status, thus causing the em- ployee to lose any benefit from this proposal in any 90-day period in which he is sick or absent due to illness or injury. In this case, the record establishes that the Re- spondent came to the bargaining table adamant in its insistence that the Union (1) waive all rights to bar- gain over issues not covered by the agreement, in- cluding those not within the knowledge or contemp- 637 lation of either party; (2) waive all rights to partici- pate in the determination of the hourly pay of each employee and/or the right to grieve over any arbi- trary action on the part of the Respondent with re- gard to individual salaries; (3) waive all rights to be consulted regarding practically all disputes that might arise during the course of the contract term including the right to grieve over arbitrary action of the Employer in the fields of "suspending, schedul- ing, assigning, discharging, laying off, recalling, pro- moting, retiring, demoting and transferring of em- ployees"; (4) waive all right to strike, protest, or publicize in any way any arbitrary or unlawful acts on the part of the Respondent, including those that would not otherwise be subject to the arbitration remedy; and (5) acquiesce in the loss to the employ- ees of conditions of employment and fringe benefits they had heretofore enjoyed. It is a fundamental precept of labor relations law that "the obligation to bargain collectively does not compel either party to agree to a proposal or require the making of a concession." However, as stated above, the Board can and does consider the totality of the employer's actions to assess its motivation in determining whether it was really engaging in surface bargaining with no genuine intention to reach agree- ment. In appraising Respondent's actions, the words of the United States Court of Appeals for the First Circuit are appropriate: It is difficult to believe that the Company with a straight face and in good faith could have sup- posed that this proposal had the slightest chance of acceptance by a self-respecting union, or even that it might advance the negotiations by afford- ing a basis of discussion; rather, it looks more like a stalling tactic by a party bent upon main- taining the pretense of bargaining.5 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 ev- ery right it would normally possess to represent effec- tively the employees involved during the contract, particularly when not only its representation rights are decimated, but the overall improvement in the employees' benefits are minimal if not nonexistent;6 nor can we accept the contention that Respondent, whose negotiating agent is well schooled in the reali- ties of collective bargaining, in good faith believed that such a proposal would ever be accepted by the 5 N L R B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139 (C A 1, 1953), cert. denied 346 US 887 6 Compare the potential annual loss of $240 in sick-pay benefits alone with the Respondent's wage proposal which, at its very best, would only grant an annual increase of $208 , plus one additional paid holiday amount- ing to $40 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 (a)(5) and (1) of the Act .7 We further find that the lockout of its employees on January 29, 1974, was not a defensive or legiti- mate bargaining-position lockout, but rather was de- signed to discourage the employees' support of the Union and to bring economic pressure to bear in support of its unlawful bargaining position, and, by locking out its employees in these circumstances, we find that Respondent violated Section 8(a)(3) and (1) of the Act.' THE REMEDY Having found that Respondent has violated the Act, we shall order it to cease and desist from engag- ing in the unfair labor practices found herein and take certain affirmative action as provided in our Or- der herein, designed to effectuate the policies of the Act. With respect to the overall bad faith exhibited by Respondent during the course of negotiations, we shall give a general bargaining order with the under- standing that inasmuch as unit employees have been deprived of the benefits of the certification year, said year shall be deemed to begin on the date that Re- spondent commences to bargain in good faith. With respect to the locked-out employees, having found that the Respondent violated Section 8(a)(3) of the Act by locking out its employees in support of an unlawful bargaining position, we shall order that the Respondent offer said employees immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. Respondent will also be ordered to reimburse them for any loss of pay they may have suffered as a result of the discriminatory action against them in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, 291-293 (1950), to- gether with 6-percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1963). Upon the basis of the foregoing, and upon the en- 7 Continental Insurance Company, 204 NLRB 1013 (1973), enfd. 495 F.2d 44 (C.A. 2, 1974). a Port Norris Express Company, 174 NLRB 684, 690 (1969). While we agree with the Administrative Law Judge's conclusion that the alleged "sick-out" was not a motivating factor in Respondent's locking out its em- ployees, in the absence of any definitive evidence that employees absent on sick leave during the month of January 1974 were not sick , we do not adopt or pass on the Administrative Law Judge's conclusion that the employees engaged in a partial "sick-out" in order to bring pressure on the Company to agree to the Union's demand. tire record in the case, we make the following: CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been, engaged in commerce and in an operation affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act, representing an appropriate bargaining unit of employees of Respondent. The appropriate unit is: All production and maintenance employees em- ployed by Respondent at its 2134 Old Middle- field Way and 1078 B Wentworth, Mountain View, California, facilities, excluding all office clericals, guards and supervisors as defined in the Act. 3. Since on or about November 9, 1973, and con- tinuing thereafter to date, Respondent has, by its overall course of conduct in the contract negotia- tions, refused to bargain collectively in good faith concerning wages, hours of employment, and other terms and conditions of employment in violation of Section 8(a)(5) and (1) of the Act. 4. By locking out its employees on January 29, 1974, in support of an unlawful bargaining position, Respondent has violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 6. The second affirmative defense alleged by Re- spondent is without merit. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Tomco Communications, Inc., Mountain View, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with United Electrical, Radio and Machine Workers of America (UE) Local 1412 as the exclusive repre- sentative of the employees in the unit described be- low, concerning rates of pay, wages, hours of em- ployment, and other conditions of employment: All production and maintenance employees em- ployed by Respondent at its 2134 Old Middle- field Way and 1078 B Wentworth, Mountain TOMCO COMMUNICATIONS, INC. View, California, facilities, excluding all office clericals, guards and supervisors as defined in the Act. (b) Discouraging membership in the above-named Union by locking out its employees in support of an unlawful bargaining position. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights protected under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named Union as the exclusive representative of all the employees in the unit de- scribed above, concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer the employees who were locked out on January 29, 1974, immediate and full reinstatement to their former jobs, or, if their jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them by reason of their discriminatory lockout in the manner set forth in the section herein entitled "The Remedy." (c) Upon request, make available to the Board or its agents, for examination and copying all payroll and other records containing information concerning its backpay obligation under this Order. (d) Post at its places of business in Mountain View, California, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized repre- sentative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notice 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. (e) 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 here- with. 9In 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." APPENDIX 639 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT refuse to bargain collectively in good faith with United Electrical, Radio and Machine Workers of America (UE) Local 1412 as the exclusive representative of our employees in the appropriate unit concerning rates of pay, wages, hours of employment, and other condi- tions of employment. WE WILL NOT lock out employees for the pur- pose of imposing an unlawful bargaining posi- tion. WE WILL, upon request, meet and bargain col- lectively in good faith with a duly authorized representative of the Union concerning rates of pay, wages, hours of employment, and other conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. The unit is: All production and maintenance employees employed by Respondent at its 2134 Old Mid- dlefield Way and 1078 B Wentworth, Moun- tain View, California, facilities, excluding all office clericals, guards and supervisors as de- fined in the Act. WE WILL offer the employees who were locked out on January 29, 1974, immediate and full re- instatement to their former jobs or, if their jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other rights and privileges , and make them whole for any loss of pay suffered by them by reason of their discriminatory lockout. TOMco COMMUNICATIONS, INC. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge : Based on a charge filed on February 12, 1974, by United Electrical, Radio and Machine Workers of America (UE) Local 1412, hereinafter referred to as the Union , the complaint herein was issued on August 13, 1974. The complaint alleges that Tomco Communications , Inc., hereinafter referred to as Respondent or Company , violated Section 8(a)(5), (3), and (1) of the Act.' Respondent, by its answer, denies that it engaged in conduct violative of the Act as alleged.2 Pursuant to notice, the hearing was held in San Francis- co, California, on September 30 and October 1 and 2, 1974. Appearances were entered on behalf of all the parties. Briefs were received from the Respondent on November 26, 1974, from the General Counsel on November 29, 1974, and from the Union on December 3, 1974? Based upon the entire record 4 in this proceeding and my observation of the witnesses as they testified , I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a California corporation engaged in the production of elec- tronic components . During the year preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations , purchased and received maten- als and supplies valued in excess of $50,000 directly from suppliers located outside the State of California , and sold and shipped goods valued in excess of $50,000 directly to purchasers located outside the State of California. As is admitted by the Respondent, it is, and at all times material herein has been , an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by the Respondent, the Union is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. i The allegations of violations of Section 8(aXI) of the Act are derivative, rather than independent allegations of unfair labor practices. 2 Respondent also alleges two affirmative defenses which are set forth herein below. 7 After two extensions the time for filing briefs was set for November 29, 1974. (The Union's brief was sent from New York, by airmail and special delivery on November 28, 1974.) Nevertheless, it was considered 4 Errors in the transcript have been noted and corrected III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Information The Respondent admits the following allegation with re- spect to the bargaining unit involved herein: At all times material herein all production and maintenance employees employed by Respondent at its 2134 Old Middlefield Way and 1078 B Wentworth, Mountain View, California facilities, excluding all of- fice clericals, guards and supervisors as defined in the Act, have constituted a unit appropriate for the pur- pose of collective bargaining within the meaning of Section 9(b) of the Act. It appears that during the time material herein there were nine employees in the above-described bargaining unit. The following facts are alleged in the complaint and ad- mitted by Respondent. (a) On October 25, 1973, a majority of the employees of Respondent in the unit described above by secret-ballot election conducted under the supervision of the Regional Director for Region 20 of the Board, designated and select- ed the Union as their exclusive representative for the pur- poses of collective bargaining with Respondent. (b) On November 2, 1973, the Acting Regional Director for Region 20 of the Board certified the Union as the ex- clusive representative for purposes of collective bargaining of Respondent's employees in the unit described above. (c) On or about November 9, 1973, December 5, 1973, December 6, 1973, December 14, 1973, January 7, 1974, January 8,5 and January 28, 1974, Respondent and the Union met for the purpose of negotiating a collective-bar- gaining agreement covering the employees in the unit de- scribed above. The record discloses that, at the aforesaid meetings to negotiate a contract, the principal spokesman for the Union was Paul Chown, an International representative of United Electrical, Radio and Machine Workers of Ameri- ca, and the principal spokesman for Respondent was Charles H. Goldstein, a member of the law firm repre- senting the Respondent in this proceeding. B. The Issues It is alleged in the complaint that Respondent violated Section 8(a) (5) and (1) of the Act by the following: 1. By its overall course of conduct in the contract nego- tiations which constituted a refusal to bargain in good faith. 2. By refusing "to consider any proposal by the Union providing for participation by union shop stewards in the resolution of grievances and disputes respecting employ- ees" in the bargaining unit described above. 3. By insisting "to impasse on its contract proposal for a grievance procedure which provided no right for the Union to be present at the initial presentation of employee griev- ances and allowed only an `International representative' of the Union to participate in subsequent steps of the griev- ance procedure." 5 Although not alleged, it is found that there was a meeting on January 8. 1974 TOMCO COMMUNICATIONS, INC. 4. By insisting "to impasse on its contract proposal that the Union or its members be prohibited from publicizing that Respondent is unfair or that there is a dispute between the Respondent" and the Union "or any other labor orga- nization." It is further alleged that Respondent violated Section 8(a)(3) and (1) of the Act on January 29, 1974, by locking out the employees in the above-described bargaining unit "in support of Respondent's bargaining position and de- mands as described above and/or because of said employ- ees' activities on behalf of the Union." As its first affirmative defense, the Respondent alleges "that during the month of January 1974, pursuant to a common plan, design and conspiracy, the Union and the bargaining unit employees engaged in a deliberate slow- down and sickout" which constituted concerted activities not protected under the Act. As a second affirmative defense, the Respondent alleges that the complaint is "frivolous and totally lacking in mer- it" and asked as a remedy therefor attorneys' fees and costs. C. Summary of the Negotiations Chown, as above stated, was the principal spokesman for the Union and was accompanied at the bargaining ses- sions by a committee of employees consisting of Robert Garcia and Rodney Williams. Goldstein, as above stated, was the principal spokesman for Respondent and was ac- companied by representatives of management , Thomas Ol- son, president of Respondent, and Vincent Borelli, vice president of Respondent. The summary of negotiations is based, in the main, on the credited portions of the testimony of Chown and Gold- stein who were the principal witnesses for the respective parties. At the first meeting on November 9, 1973, the Union submitted a proposed contract. It appears that at that meeting it was agreed that when the negotiators reached an agreement as to a provision, both sides would initial that provision which would signify a tentative agree- ment thereto subject to the approval of the Union's mem- bers and Respondent's board of directors. It was further agreed that the negotiators would not have a contract to recommend either to the board of directors or the union members until a complete document had been worked out. At said November 9 meeting, the negotiators went through each provision of the Union's proposed agree- ment. Goldstein objected to the first paragraph of the agreement on the ground that making the contract binding upon its successors and assigns would make the Company "less salable" and the Union's response was it wanted such a provision in order to provide for continuity in case of a change in ownership . As to purpose of the agreement set forth in "Section 2," Goldstein stated that he was dissatis- fied with the language and said that he would, at the next meeting, bring in a rewritten version thereof . As to Article I (Recognition) Goldstein stated that he thought it should be more specific and that he would submit the language he had in mind. As to Article II (Union Security) Goldstein said he was not "in agreement in any way in having a 641 Union shop contract" to which the Union responded that it strongly insisted on having a "union shop agreement." With respect to Article III (Non-discrimination) there was some discussion about the wording in Section 1 which ap- peared to be merely a matter of disagreement in the matter of semantics rather than in principle. With respect to Arti- cle IV (Checkoff) Goldstein said that while he was not agreeing to it, checkoff might be acceptable if there were a clause indemnifying the Company for erroneous deduc- tions, to which Chown replied that such a clause was a new concept to him. With respect to Article VI (Hiring Proce- dures) Goldstein indicated he did not see any need for the provision and asked for further information about the Union's job referral procedures at the next meeting. As to Section 2 of the article, he stated that he doubted the ne- cessity to have such a provision which required notice of hiring be given to the chief steward, that since it was a small company, employees would immediately know of any new worker. The Union responded that it was neces- sary for it to know the classification or rate of pay of a new employee in enforcement of the contract. Article VII (Reporting Pay), Article VIII (Call Back Pay), and Article IX (Hours and Overtime) were discussed briefly and were classified by Goldstein as economic is- sues. He stated that they would have to be looked at as part of the economic package of the agreement and they were then passed over. With respect to Article X (Bulletin Boards) Goldstein stated that the Company had no objec- tion in principle to a bulletin board, but that he did not like the language and would come back at the next meeting with proposed language on the subject matter. With respect to Article XI (Bereavement) and Article XII (Jury Duty) Goldstein classified them as part of the "economic bag" and indicated that the Company would have a response at the next meeting. With respect to Article XIII (Paid Ab- sence Allowance) Goldstein admitted that it was the cur- rent policy of the Company for 12 days sick leave per year but stated that there had been some abuse of it and that at the next meeting would come in with a new proposal on the subject. With respect to Article XIV (Plant Visitation by U. E. Representatives) Goldstein stated that he thought that it was "too free" but he might have a response at the next meeting. With respect to Article XV (Safety and Health) Goldstein stated that Section 3 thereof was the present company policy and did not see any difficulty in getting an agreement on that; but with respect to Sections 1 and 2, he stated that he thought there should be a simple referral to the present laws of the land without further ex- plication. Goldstein indicated that at the next meeting he would bring in a proposed contract dealing with the mat- ter. With respect to Article XVI (Leaves of Absence) Gold- stein said he would have a proposal at the next meeting. With respect to Article XVII (Paid Holidays) Goldstein's reaction was that they currently have six paid holidays and that this seems like an excessive demand but that the mat- ter of the total number of holidays was also part of the economic package. The next article is also numbered XVII (Grievance Procedure). Goldstein's response was that he thought it was much too broad, too general, too vague and that he objected that it did not provide for a no-strike clause which he thought should be in the contract. Gold- 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stein stated he would have a proposal on the grievance procedure on the next meeting. With respect to Article XVIII (Representation) Goldstein responded that it al- lowed for "much too much freedom of movement" of union stewards and other employee representatives of the Union (for whose time the Company would be required to pays e There apparently was no Article XIX in the agreement. With respect to Article XX (Vacations) Goldstein's re- sponse was that it was an economic matter that would have to be studied and that he would come in with a proposal at the next meeting. With respect to Article XXI (Wages) Goldstein's response was that he thought the Union was "shooting very high" and it appears that his response was that he would have to study the article as part of the eco- nomic package. With respect to Article XXII (Health and Welfare) Goldstein responded that the Company had just negotiated a new health and welfare plan and that he thought there would be some difficulty involved in negoti- ating another, and again, Goldstein said that the subject matter was part of an economic package that would have to be looked at in that light. With respect to Article XXIII (Seniority) Goldstein responded that it was "much too tight" and that "the Company had to have much clearer freedom of action that is provided for." Goldstein stated he would have a proposal on the seniority plan at the next meeting. With respect to Article XXIV (Discharges) Gold- stein stated that the Company was not totally opposed to the concept of "just cause" but that he did not like the language of the article and a discussion with respect to this article was concluded with his statement that he would come back with a proposal at the next meeting. With re- spect to Article XXV (Continuation of Past Practices) Goldstein took the position that he would not agree to the clause because it was too vague and that the Union should bring in a list of past practices and the Company would consider whether to agree to incorporate them in the agree- ment or not; he was adamant in opposing the blanket pro- vision set forth in said article . It does not appear that the Union ever submitted such a list. There was then a discussion as to when a next meeting should take place and Goldstein consulted a calendar and said that he was not able to meet until on or about Novem- ber 21 but that the date would be confirmed by consulta- tion between Chown and Goldstein. Chown was subse- quently advised by Goldstein that it was impossible to meet before December 5 and 6, but that he could devote 2 full days on those dates to negotiations . It appears that Goldstein promised that he would have the Company's proposed agreement in the hands of the union representa- tives prior to the meeting of December 5, but it was not until the meeting of December 5 that the Respondent fur- nished the union negotiators with its proposed agreement. It appears that thereafter the negotiations were based on the provisions in the Company's proposed agreement and that there were no further references to the proposed agree- t The grievance procedure and the representation clause provided for a total of as many as six employees who could be involved (two stewards and a four-man grievance committee). It is noted that the entire unit consisted of nine employees. ment submitted by the Union on November 9. "Appendix A" [omitted from publication] is the Company's proposed agreement with the modifications thereof and indications of those provisions which were agreed upon by the parties as of the end of negotiations on January 8, 1974. An under- standing of the following summary of negotiations at the meetings subsequent to the first (on November 9) may, perhaps, be enhanced by reference to said "Appendix A." At the meeting on December 5, tentative agreement was reached as to several of the provisions in Respondent's proposed agreement, but the Union rejected the vast ma- jority of the provisions contained thereon. With respect to the no-strike clause contained in said proposed agreement it appears that both Chown and Garcia rejected having a no-strike clause in the contract. Chown argued that the proposed arbitration as a terminal means of settling dis- pute was a "sufficient remedy" and it appears that Garcia, during the course of negotiations at the meeting on Janu- ary 7, stated that the employees "are not going to give up their right to strike." While there was some discussion ap- parently about the additional language with respect to pro- hibiting publicity about disputes, it does not appear that this language was a material factor in the Union 's rejection of the no-strike provision. The Union also rejected the Company's proposed grievance procedure in that it did not provide for the shop steward system and limited union in- volvement in grievances to an International representative. Apparently considerable discussion took place with re- spect to the various provisions in the proposed agreement since the meeting started at 10 a.m. and was not concluded until 4:30 or 5 p.m., and the parties met again on Decem- ber 6 for a morning session. It does not appear that any further agreements were reached on that date. The next meeting took place on December 14, 1973, which began in the morning and lasted "a good part of the day." At this meeting, the Union presented to the company negotiators a revised proposal, "Appendix B" [omitted from publication]. It contained four proposals with respect to: I-Seniority; II-Grievance Procedure; III-Represen- tation ; and IV-Management Rights. Although Chown testified that Goldstein responded by rejecting the shop steward system and insisting upon dealing only with an International representative, Goldstein testified, and his testimony is credited, that he offered to agree to the shop steward system (set forth in "Appendix B") if the Union would agree to the Company's provisions with respect to management rights and its no-strike clause? It is noted that the Union's grievance procedure provided for representa- tion by a shop steward at the first step of the grievance, i.e., the attempt to adjust the grievance with the employees' foreman ; whereas, Article XX of the proposed agreement submitted at the December 5 meeting provided, "a) The employees concerned shall endeavor to adjust the matter with their foreman." The proposed agreement as of Janu- ary 7, 1974, contains the same provision in Article XVIII, Section 3(a).1 Apparently, Goldstein's offer to accept the r There is nothing to support Chown's testimony on this point , whereas Borelli's notes which were received into evidence support Goldstein 's testi- mony. s Apparently the words "or employer" were retained in the January 7 proposed contract inadvertently since the word "employer" was stricken from the agreement submitted on December 5. TOMCO COMMUNICATIONS, INC. union steward system in exchange for the provisions con- tained in the management rights and no-strike clauses was rejected by the Union. There was some discussion on the issue of the union shop and wages upon which there was no agreement. The next meetings were held on January 7 and 8, 1974, and arrangements were made for a state labor conciliator to be in attendance . The Respondent presented a new proposed agreement which is the agreement con- tained in "Appendix A." As in the previous meetings, the negotiators discussed the proposed agreement item by item and the negotiations continued also on January 8 . Tenta- tive agreement was indicated by the initials of the principal negotiators and, as noted in "Appendix A," those agree- ments which were arrived at are indicated in the left-hand margin. It does not appear that at the meetings on January 7 and 8 there was any further discussion of the Company's offer to trade the shop steward system for the management rights and no-strike clauses, nor does it appear that the Company ever withdrew the offer prior to the impasse which occurred as found herein below. During the meeting on January 7 the Company pro- posed a 10-cent-per-hour increase for all but two employ- ees and the remaining to be reviewed later . The Union rejected this proposal and the Company rejected the Union's counterproposal . It is noted that at all the negotia- tion sessions the Union indicated that it would accept nothing short of a "union shop." It is also noted that dur- ing the period of the negotiations herein the Union had no full-time business agents, that Chown handled all of the Union's contract negotiations and that all of the union of- ficers had full-time employment elsewhere. Goldstein, on one hand, insisted he wanted an International representa- tive involved in the grievance proceeding and not a local representative and Chown responded that such a practice was contrary to the Union's policy. It is noted, however, that the Union's original proposal (on November 9) pro- vided that International representatives "be given free ac- cess to the plant during working hours for the purpose of administering this agreement, or for the purpose of con- ducting union business ." It is further noted that when Chown pointed out that his duties frequently took him away from the area, Goldstein suggested that Garcia could be appointed as his agent, but this was rejected by Chown. The next and last meeting took place on January 28, 1974. Before setting forth what occurred on that occasion, however, it appears appropriate to set forth matters which occurred prior to said meeting on January 28. According to the credited testimony of Morris Hudson, who was an employee and a member of the bargaining unit in December 1973 and January 1974, until he was locked out on January 29, 1974, the employees discussed among themselves the idea of lowering production in order to put pressure on the Respondent. He further testified, however, the he was not aware of any agreement that was reached to implement the idea. Also, according to his testimony, one of the ideas was that a slowdown could be accomplished by employees not reporting to work. Chown testified that the employees were upset by the delays in negotiations and that at various times employees were urging strikes and 643 urging people to stay out sick, and that they did so in his presence. It does not appear from his testimony that he discouraged them from engaging in such tactics, and it is found that by his silence he condoned their resorting to putting pressure upon the Respondent by cutting down production. Although there is insufficient evidence in the record to permit the inference that they engaged in a slow- down while at work, the evidence does support a finding that the employees did engage in a partial "sickout." It is noted that in November 1973, the total number of hours that the employees in the bargaining unit were out sick was 16 and, in December 1973, 24 hours. However, in January 1974, eight of the nine employees in the bargaining unit were out sick for varying numbers of hours and the total number of hours of "sick time" for the members of the bargaining unit was 137.5 hours. In contrast thereto, of the seven employees who were not in the bargaining unit, only two were out sick for a total of 24 hours during the month of January 1974. In the circumstances it is concluded that the employees did engage in a partial "sickout" in order to bring pressure upon the Company to agree to the Union's demands. Also, during the month of January, the employees con- tacted Olson and attempted to persuade him to change the bargaining positions taken by Goldstein and it appears that they did so at the suggestion of Chown. According to credited testimony, Olson reported to Goldstein their at- tempts to negotiate with him and complained to Goldstein about an increase in the amount of sick leave. On January 15, 1974, Goldstein wrote a letter to Chown which, among other things, complained about the above-mentioned ac- tions of the employees. The next and last meeting between the negotiators was on January 28, 1974. At that meeting, according to Chown's testimony, Goldstein referred to the sickout which he (Chown) did not deny, since he was not in a position to do so because he had no knowledge of the facts. At said January 28 meeting, the state conciliator was also present. During said meeting the Company modified its wage proposal by agreeing to a 10-cent-per-hour increase for all nine of the employees instead of for only seven, as originally proposed. The Union rejected the proposal as inadequate and the Company rejected a union counterpro- posal. It appears that the meeting concluded when Gold- stein notified the Union that its proposed agreement, as it then stood, was its last, best, and final offer and stated that the Union had until 5 p.m. on January 29, 1974, to accept its proposal or the Company would take economic action. No arrangements were made for a further meeting. On January 29, Respondent gave a notice to its employ- ees advising them of its demand that the Union accept the Respondent's last, best, and final offer; that the Union has not accepted it; that Respondent was taking "lawful eco- nomic action" to reach a written agreement; and that, until such time as the Union accepts said offer, Respondent was locking out all bargaining unit employees. On February 1, Chown sent a telegram to Respondent requesting that the employees be allowed to return to work with the previous wages and working conditions and that the negotiations resume. Respondent replied the following day with a tele- 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gram that the employees could return to work only if the Union agreed to Respondent's last, best, and final offer. A week or 10 days after the lockout Chown called Goldstein on the telephone and requested further bargaining. Gold- stein stated that he was willing to meet, but that there had been no change in the Respondent's position; and that, if the Union was ready to accept the Respondent's offer, he would be happy to have a meeting. Chown replied that the Respondent would have to offer more money and union security. Goldstein responded that, if the Union was not going to change its position, it would be meaningless to meet. Chown agreed, after some comment about the legali- ty of a lockout and a suggestion by Chown that the Com- pany might not have to take back some employees if an agreement was reached. Goldstein rejected the suggestion and the conversation ended. On June 24, 1974, Chown wrote a letter to Respondent again requesting that employ- ees be allowed to return to work and that negotiations re- sume, but it appears that his request was not accepted since there has been no meeting of the parties since January 28, 1974. D. Concluding Findings With respect to the allegation in the complaint that by its "overall course of conduct" in the contract negotiations Respondent refused to bargain in good faith, it is the con- tention of the General Counsel and Charging Party that the Respondent merely engaged in "surface bargaining." On the other hand the Respondent contends that it bar- gained in good faith, that "hard bargaining" is not a viola- tion of the Act. In essence the General Counsel's argument is the Re- spondent made few concessions and insisted on many of its own proposals. The Board stated in Kohler Co., 128 NLRB 1062, 1069 (1960): While the record shows that the Respondent gave little and held fast to many of its positions, the Act does not compel any agreement whatsoever or that either party agree to the other's proposals. It only requires the par- ties to confer in good faith. N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 45; N.L.R.B. v. American National Insurance Co., 343 U.S. 395. In Artiste Permanent Wave Co., 172 NLRB 1922, 1939, footnote 21 (1968), it is stated: It is well settled that, under Section 8(d), 8(a)(5), and 8(b)(3) of the amended Act, bargaining is a two- way street, in which both parties have a clear obliga- tion to bargain in good faith so that union conduct which indicates a refusal to bargain in good faith may remove the possibility of true negotiation and must be considered in deciding whether the employer is acting in good faith. Times Publishing Company, 72 NLRB 676, 682, 683; Phelps Dodge Copper Products Corpora- tion, 101 NLRB 360, 368; N.L.R.B. v. Insurance Agents International Union [Prudential Ins. Co.], 361 U.S. 477, 487, 488; Roadhome Construction Corp., 170 NLRB 668. General Counsel argues that Respondent from the be- ginning took positions on various issues which it could rea- sonably predict would be rejected by the Union, frustrate bargaining, and produce a stalemate. In support of this argument, General Counsel referred to the Respondent's proposal with respect to the grievance procedure "which provided no right for the Union to be present at the initial grievance and which allowed only an international repre- sentative to participate in the subsequent steps? Based on credited testimony, as found hereinabove, after the Union presented its modified grievance procedure, as set forth in "Appendix B," on December 14, 1973, the Respondent agreed to accept the Union's proposal of a shop steward system if it would in turn accept its proposed management rights clause and its no-strike clause. This offer was reject- ed by the Union. The General Counsel argues that the Board management rights clause was predictably unac- ceptable and that also predictably unacceptable was Respondent's prohibition against publicizing labor dis- putes by any means whatsoever which was part of Respondent's proposed no-strike clause. In N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 409 (1952) the Court stated: Accordingly, we reject the Board's holding that bar- gaining for the management functions clause pro- posed by respondent was, per se, an unfair labor prac- tice. Any fears the Board may entertain that use of management functions clauses will lead to evasion of an employer's duty to bargain collectively as to "rates of pay, wages, hours and conditions of employment" do not justify condemning all bargaining for manage- ment functions clauses covering any "condition of em- ployment" as per se violations of the Act. The duty to bargain collectively is to be enforced by application of the good faith bargaining standards of Section 8 (d) to the facts of each case rather than by prohibiting all employers in every industry from bargaining for man- agement functions clauses altogether. See all Texas Industries, Inc., 140 NLRB 527, 529 (1963). The case cited by General Counsel, Stuart Radiator Core Manufacturing Co., Inc., 173 NLRB 125 (1968), involved factors not present in the proceeding and therefore is not deemed to be applicable. It is noted that the above-mentioned prohibition against publicity was part of the no-strike clause. General Counsel does not contend that it was inappropriate for the Respon- dent to insist upon a no-strike clause, but merely confines himself to the prohibition against publicity contained therein. As stated hereinabove, the Union refused to accept a prohibition against its right to strike and General Coun- sel has failed to cite any cases which hold that the amplifi- cation of the no-strike clause as proposed by Respondent was unlawful. In view of the insistence of the Union on a grievance and arbitration procedure, the request for a no- strike clause is reasonable and Respondent by its amplifi- cation of the no-strike clause apparently attempted to pro- 9 These two points are the subject matter of independent violations of Section 8(a)(5) and (1) of the Act set forth in the complaint which allega- tions are discussed herein below. TOMCO COMMUNICATIONS, INC. hibit conduct by the Union or its members which would be disruptive of the Company's operations. In view of the Union's insistence upon retaining the right to strike,1° the amplified portion of the no-strike clause could not have been a material factor in the minds of the union negotia- tors. As further evidence of Respondent's "surface bargain- ing," General Counsel refers to the Respondent's proposal of a zipper clause and clauses abolishing past practices. As found hereinabove, when the Union proposed continuing past practices, the Respondent stated that it would not agree to such a broad provision, but that, if the Union would bring in a list of past practices, it would consider their inclusion in the agreement. It appears that the posi- tion of the Respondent was that the Company's operations had been very loosely handled and it would be difficult to know what past practices the Union might rely on in the future. Thus, it is deemed that Respondent quite reason- ably proposed the abolishment of all past practices in order to avoid ambiguities in the future and took the reasonable position of being willing to consider any past practice the Union specified. I have found no cases which hold that a "zipper clause" is per se violative of the Act and its inclu- sion in the Company's proposal appears to have been a reasonable request in the circumstances of this case. The Union further argues, in support of the contention that the Respondent merely engaged in "surface bargain- ing," that the Company made no wage proposal until the meeting of December 7 (which was 10-cents-per-hour for seven of the nine unit employees). It is noted that the nego- tiations not only carried on during December 7, but con- tinued on to December 8; that at the meeting on December 28 the Company offered to extend the 10-cent-per-hour increase to the remaining two bargaining unit employees; and that the Union made a counterproposal which was rejected by the Company. Goldstein gave a reasonable ex- planation for the basis of its wage proposal, that the amount was consistent with the wages paid in the labor market in the area. It does not appear appropriate to find that the Respondent did not give the Union an ample op- portunity to, bargain about the wage rate and that the Respondent's insistence upon adhering to its proposal con- stituted evidence of "surface bargaining." It does not appear that the Respondent engaged in any dilatory tactics and it is clear that Respondent discussed all proposals on the bargaining table and fully explained its positions. As a result of the negotiations, the parties were able to agree on some items but remained far apart on other matters. Absent a finding that the impasse was caused by Respondent's failure to bargain in good faith, a stalemate does not constitute evidence of "surface bargain- ing," if it was caused by Respondent's "hard bargaining." Atlantic Research Corporation Desomatic Products Division, 144 NLRB 285, 287, 295 (1963). While it is found, however, that up to January 28, 1974, the Respondent did not en- gage in "surface bargaining," 11 it is concluded that the 10 In N L.R.B. v. American National Insurance Co, 343 U.S. 395, 408 (1952), in In. 22, the Court affirmed the Board's ruling that an employer may bargain in good faith for a no-strike clause ' Kohler Co., 128 NLRB 1062, 1069-70 (1960). 645 Respondent caused an impasse on January 28 by the change in its bargaining position on that date. It is found that at the meeting of January 28 the parties reached an impasse after the Respondent stated that its proposal, as amended, constituted its last, best, and final offer, and it is found that this statement caused the im- passe. It is further found that by this statement the Re- spondent changed its bargaining position by insisting on its grievance and arbitration clause as stated in its proposed agreement, thereby withdrawing its proposal to agree to the union shop steward system in exchange for its manage- ment rights and no-strike clauses. That bargaining position conditioned its execution of any contract with the Union on the Union's acceptance of the Company's proposed grievance and arbitration clause (which is discussed herein below in considering the allegations of independent viola- tions of Section 8(a) (5) and (1) of the Act). It is alleged in the complaint that the Respondent violat- ed Section 8(a)(5) and (1) by refusing to consider any pro- posal by the Union for participation by union shop stew- ards in the resolution of grievances and disputes. As found hereinabove, the Respondent did consider said proposal and offered to accept it as set forth in the Union's Decem- ber 14 counterproposals (Appendix B) provided the Union accept its proposed management rights and no-strike claus- es. Therefore, it is found that the General Counsel has failed to prove by a preponderance of the evidence the aforesaid allegation in the complaint. It is also alleged in the complaint that Respondent vio- lated Section 8(a)(5) and (1) of the Act by insisting to im- passe on a grievance procedure which provided no right for the Union to be present at the initial presentation of em- ployee grievances and allowed only an International repre- sentative of the Union to participate in the subsequent steps of the grievance. It is found that, by Respondent's statement of its last, best, and final offer, the Respondent was insisting to impasse upon such a grievance procedure. In Bethlehem Steel Company, 89 NLRB 341, 347, the Board held that Respondent violated Section 8(a)(5) and (1) of the Act by insisting on the Union's acceptance of a clause which did not provide for union representation at the first step of the grievance procedure (the adjustment of a griev- ance between the employee and his foreman) as a condi- tion of executing any contract. Therefore, it is found that Respondent violated Section 8(a)(5) and (1) of the Act by insisting to the point of impasse on the Union accepting the Company's proposal as it stood on January 28 which contained a grievance procedure which failed to provide for union representation at the first step of the grievance and dictated who the representative of the Union should be at subsequent steps of the grievance procedure. As for Respondent's insistence upon an International representa- tive at subsequent steps, it is well settled that an employer cannot dictate to a Union who should or should not be the Union's bargaining representative in negotiations between them. It is further alleged that Respondent violated Section 8(a)(3) and (1) of the Act by locking out its employees in support of its bargaining position. In American Shipbuilding 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company v. N.L.R.B., 380 U.S. 300, 318 (1965) the Su- preme Court stated: Accordingly, we hold that an employer violates nei- ther § 8(a)(1) nor § 8(a)(3) when after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole pur- pose of bringing economic pressure to bear in support of his legitimate bargaining position. [Emphasis sup- plied.] It is eminently clear from the record (of which Respondent was aware) that the Union would not accept the grievance and arbitration clause as set forth in the Company's final proposal. Thus, it is found that Respondent's final propos- al was calculated to evade bargaining and to avoid arriving at a contract with the Union and that the lockout was not imposed for the purpose of bringing economic pressure to bear in support of a "legitimate bargaining position." Con- sequently, it is concluded that Respondent violated Section 8 (a)(3) and (1) of the Act by locking out the employees in the above-described bargaining unit. Bagel Bakers Council, 174 NLRB 622, 633 (1969). Port Norris Express Company, 174 NLRB 684, 690 (1969). It is further alleged that Respondent violated Section 8(a)(5) and (1) of the Act by insisting to impasse on the publicity prohibition in its proposed no-strike clause (as stated hereinabove). No cases were cited which hold that such a prohibition in a no-strike clause is violative of the Act. It appears that Respondent was attempting to specify types of conduct which usually accompany a strike or which are utilized for the purpose of disrupting Respondent's operations. In the circumstances it does not appear that General Counsel has proved by preponderance of the evidence the aforesaid allegation in the complaint. As its first affirmative defense the Respondent alleges that the bargaining unit employees engaged in a deliberate slowdown and sickout which constituted concerted activi- ties not protected under the Act. As found hereinabove, there is no evidence of a slowdown while at work, but it has also been found hereinabove that there was a partial sick- out in that there was an abnormally large number of hours of sick leave in January 1974 (137.5 hours). While the Re- spondent did refer to the employees engaging in a sickout in its letter to the Union on January 15 and again during the meeting of January 28, it is my opinion that neither a slowdown nor sickout was a motivating factor in locking out the employees; 137.5 hours of sick leave during the month constituted a minimal percentage of the total work hours of the nine employees during the month, and there is no showing of what effect, if any, the amount of sick leave had upon the Respondent's production. In the circum- stances it is inferred that a lockout was not imposed as a defensive measure to a slowdown or sickout. Moreover, it is noted that, in the notice to the employees of the lockout, no mention was made of the employees engaging in a sick- out or slowdown and when subsequently the Union made the suggestion that the Respondent could refuse to rein- state some employees (presumably objectionable because of their engaging in a sickout), the Respondent rejected the suggestion. Therefore, the Respondent's allegation of a slowdown and sickout is without merit as a defense to the finding that the Respondent violated Section 8(a)(3) and (1) of the Act by locking out its employees on January 29, 1974. American International Aluminum Corp., 149 NLRB 1205, 1217 ( 1964). As to the Respondent's second affirma- tive defense that the complaint is frivolous and totally lack- ing in merit, in view of the findings hereinabove, said de- fense is without merit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its opera- tions set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor prac- tices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. It having been found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by insisting as a condition of entering into a bargaining contract that the Union accept a griev- ance procedure which does not provide for union represen- tation at the first step thereof and which dictates who shall act as the Union's representative in the subsequent steps, it will be recommended that Respondent be ordered to cease and desist therefrom and, upon request, meet and bargain with a duly authorized representative of the Union with respect to the grievance procedure. It further having been found that Respondent's insisting upon its aforesaid un- lawful provisions for the grievance procedure to the point of impasse and that its lockout of its employees on January 29, 1974, was predicated upon a bargaining position that was not "legitimate" and thereby violated Section 8(a)(3) and (1) of the Act, it will be recommended that the Re- spondent be ordered to offer said employees immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions with- out prejudice to their seniority or other rights and privi- leges. It will be further recommended that Respondent be ordered to reimburse them for any loss of pay they may have suffered as a result of its discriminatory action against them in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), together with 6-percent in- terest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been, engaged in commerce and in an operation affecting TOMCO COMMUNICATIONS, INC. commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act representing an appropriate bargaining unit of employees of Respondent. 3. Respondent violated Section 8(a)(5) and ( 1) of the Act on January 28, 1974, by insisting to the point of im- passe on the Union accepting as a condition of entering into a bargaining contract with the Union that it accept a grievance procedure which fails to provide for union repre- sentation at the first step and which dictates whom the union representative shall be at the subsequent steps. 4. On January 29, 1974, Respondent violated Section 8(a)(3) and (1) of the Act by locking out its employees in support of an unlawful bargaining position. 647 5. The General Counsel has failed to prove by a prepon- derance of the evidence that prior to January 28, 1974, Respondent engaged in unlawful "surface bargaining." 6. General Counsel has failed to prove by a preponder- ance of the evidence that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to consider any pro- posal by the Union providing for participation by union shop stewards in the resolution of grievances. 7. The first affirmative defense alleged by the Respon- dent is found without merit as a defense to the allegation that it violated Section 8(a) (3) and (1) of the Act by lock- ing out its employees on January 29, 1974. 8. The second affirmative defense alleged by Respon- dent is without merit. [Recommended Order omitted from publication.]