Huck Mfg., Co.

HUCK MANUFACTURING COMPANY Huck Manufacturing Company and United Steel- workers of America, AFL-CIO. Cases 16-CA- 8514 and 16-CA-8604 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On April 29, 1980, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, the General Coun- sel filed a brief in answer to Respondent's excep- tions, Respondent filed a response to the General Counsel's answering brief, the Charging Party filed cross-exceptions and brief, and Respondent filed a reply to the 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, find- ings, and conclusions' of the Administrative Law I We find no merit to Respondent's exceptions to the Administrative Law Judge's findings of 8(a)(l) violations based upon statements made by Respondent's vice president and general manager, Mervin Mull, in a speech to employees on May 21, 1979. We think that certain of Mull's statements, as found by the Administrative Law Judge, were coercive. We consider these statements to exceed the bounds of permissible expres- sion under Sec. 8(c) of the Act, and we see no prejudice to Respondent in relying upon them to establish an unfair labor practice notwithstanding comments made by the General Counsel at the hearing pointed to by Re- spondent in its brief in support of exceptions. We note that the complaint alleged that Mull orally made specified threats on or about May 21, 1979, and the Administrative Law Judge's findings are consistent with those al- legations. Moreover. there is no dispute as to the authenticity of the text of Mull's speech that was placed in the record and relied upon by the Administrative Las Judge in making his findings. 2 In adopting the Administrative Law Judge's conclusion that Respon- dent bargained in bad faith concerning wage increases, we find that, by posting a notice to employees concerning a proposed increase to be effec- tive July 30, 1979, on the day after mailing the proposal to the Union and before opportunity for bargaining on the matter, Respondent circumvent- ed and disparaged the Union and demonstrated bad faith in bargaining. We find it unnecessary to determine whether Respondent implemented that proposed increase., as the implementation was not alleged as a viola- lion in the complaint, and a finding that the proposal was implemented would riot change our remedial order. For similar reasons e den, the Judge2 and to adopt his recommended Order,3 as modified herein. 4 AMENDED CONCUSIONS OF LAW The Administrative Law Judge's Conclusions of Law are amended as follows: 1. Substitute the following for Conclusion of Law 5: "5. Respondent violated Section 8(a)(1) of the Act by: disparaging and reprimanding employees for engaging in a lawful strike; telling employees that those who struck on May 15, 1979, would be paid less for working May 14 than employees who did not strike; threatening permanently to replace employees immediately if they engage in a strike; harassing employees because they engaged in a lawful strike; and paying employees who refrained from engaging in strike activities at double their usual pay rate for work on May 14 through May 18, 1979." 2. Substitute the following for Conclusion of Law 7: "7. Respondent violated Section 8(a)(5) and (1) of the Act by: failing and refusing to bargain with the Union in good faith; bargaining directly with employees on matters subject to collective bargain- ing; unilaterally implementing portions of its previ- ous offers made during negotiations with the Union request of the General Counsel, in which the Charging arty joins, that we initiate procedures to place in the record of this case two documents that bear upon the question of whether the proposed wage increase of July 30 was implemented and came to the attention of the General Coun- sel after the hearing through investigation of another case. However, we do not iew the General Counsel's submission of these documents in his answering brief as an improper disclosure of the documents. and we deny Respondent's request to strike that part of the General Counsel's brief dealing with the documents 3 The Administrative Las Judge recommended that employees who were on strike May 15 through May 18, hut worked on May 14, he paid for May 14 at the higher pay scale given nonstrikers who worked May 14 We find merit in the Charging Party's contention that this remedy is inadequate and that strikers should be paid an amount based upon the in- creased pay rates given nonstrikers for the period May 14 through May 18 We note that such a remedy is consistentl t ith the remedy provided by the Board in cases like .4ero-Motive Manufacturing Company, 195 NLRB 790 (1972), affd. 475 F.2d 27 (6th Cir 1973). and Rubatex Corpora- tion, 235 NLRB 833 (19781, affd 01I F.2d 147 (4th Cir 1979), where nonstriking employees received bonus payments for working during a strike. No different result should obtain in the instant case merely because Respondent styled the additional payment as double "wages" rather than a bonls 4 We modify the Administrative Law Judge's Cinclusions of l.aw. Order. and notice to conform to his findings of fact and our nmldification of the remedy, 254 NLRB No. 88 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the absence of an impasse in negotiations; unilat- erally increasing the wage rate paid employees, who did not strike, for work on May 14 through May 18; failing and refusing to negotiate with the Union on the subject of arbitration; and insisting that any contract with the Union be for a term of less than I year." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and set out in full below, and hereby orders that the Respondent, Huck Manufacturing Compa- ny, Waco, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Violating Section 8(a)(1) of the Act by: dis- paraging and reprimanding employees for engaging in a lawful strike; telling employees that those who struck on May 15, 1979, would be paid less for working May 14 than employees who did not strike; threatening permanently to replace employ- ees immediately if they engage in a strike; harassing employees because they engaged in a lawful strike; and paying employees who refrained from engag- ing in strike activities at double their usual pay rate for work on May 14 through May 18, 1979. (b) Violating Section 8(a)(3) and (1) of the Act by paying employees who were on strike from May 15 through May 18, 1979, for work on May 14 at rates below those paid nonstriking employees who worked on May 14. (c) Violating Section 8(a)(5) and (1) of the Act by: failing and refusing to bargain with the Union in good faith; bargaining directly with employees on matters subject to collective bargaining; unilat- erally implementing portions of its previous offers made during negotiations with the Union in the ab- sence of an impasse in negotiations; unilaterally in- creasing the wage rate paid employees, who did not strike, for work on May 14 through May 18; failing and refusing to negotiate with the Union on the subject of arbitration; and insisting that any contract with the Union be for a term of less than 1 year. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action which is deemed necessary to effectuate the purposes of the Act: (a) Make whole employees who were on strike from May 15 through May 18, 1979, but who worked May 14 and were paid at a lower pay rate than nonstriking employees who worked May 14, by paying the strikers at the same rates of pay the nonstrikers were paid for work on May 14, with in- terest. In addition, pay the strikers an amount equal to the bonus paid to nonstrikers for working May 15 through May 18, with interest. (b) Upon request, bargain collectively in good faith with the Union as the exclusive representative of all employees in the appropriate unit with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. The collective-bar- gaining period will begin from the date when Re- spondent commences to bargain in good faith, and the Union's certification will be extended for a period of 1 year from the date when Respondent begins to bargain in good faith with the Union. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its office in Waco, Texas, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 16, 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. s Inl 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National abor Relations Board" APPENDIX 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 an opportu- nity to present evidence and state their positions, 740 HUCK MANUFACTURING COMPANY the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT violate Section 8(a)(l) of the National Labor Relations Act by: disparaging and reprimanding employees for engaging in a lawful strike; telling employees that those who struck on May 15, 1979, would be paid less for working May 14 than employees who did not strike; threatening permanently to replace em- ployees immediately if they engage in a strike; harassing employees because they engaged in a lawful strike; and paying employees who re- frained from engaging in strike activities at double their usual pay rate for work on May 14 through 18, 1979. WE WILL NOT violate Section 8(a)(3) and (1) of the Act by paying employees who were on strike from May 15 through May 18, 1979, for work on May 14 at rates below those paid nonstriking employees who worked on May 14. Those employees who were on strike May 15 through May 18, 1979, are: Lloyd W. Lowry Mike Luxfan George McFarland John P. McGaugh Michael J. McGaugh Leonard McLennan J.T. McLearaen Rusty Mashburn John Henry May James Meadows Camille Minns Tom J. Moore Jimmie Nitichla Johnny Northcutt O.C. Pierce Mike Saxton Gary Culverhouse Dale Herring David Marshall Tony Rio jas Tommy Wilhite Jerald Russel Jimmy Dickson Roy Cemons Gerry Bush J.E. Hanks Victor Martin Donald Campbell Lonnie Walker S.L. Pimpton Luther Pimpton David . Ramos Jim D. Reed. Jr. Rick McGaugh Mike Adams Dennis J. Ayers Richard Benton Darleen Brinkley Robert D. Brown Artia L. Brown Billy Brown Marie Bolden Orville E. Chappell James L. Chism Gene Claridy Ben Cunningham Palmer Collier William R. Davis Michael Denny Mike Dominguez Vernon R. Drakes Norbert Fetsch Marle Gardy Billy Grobe G.T. Hendrix Dole Huricuf Rose M. Hughes Tom Hughes Wmin. E. Keton, Jr. Aaron Lang George E. Lehrmann Greg Lglehart Robert Reesing Tom Ross Kenneth W. Bolden Kenneth Ruth Roy Rutkoski Ray Salazor Maximilius Santana Larry H. Sligel Michael J. Smith Rubbie Sterling Morris Stewart Jack Stone Jr., "W.D" Kin Sydow D.L. Thompson Frances F. Venable Ronnie Walker Johnnie Mae Walker C. W. Wendt Jr. Jerry Wilson III Robert L. Wright Ralph T. Andre Edwards Jimmy Thompson Bernice Danford James Hollingsworth Nino Santane Charlie Hughes Bob Barnes Linda Brewington Frankie Ingram Mike Jones Jack Reed Mark Tardy Tom Askins WE WILL NOT violate Section 8(a)(5) and (1) of the Act by: failing and refusing to bargain with the Union in good faith; bargaining di- rectly with our employees on matters subject to collective bargaining; unilaterally imple- menting portions of our previous offers made during negotiations with the Union in the ab- sence of an impasse in negotiations; unilateral- ly increasing the wage rate paid employees who did not strike for work on May 14 through May 18; failing and refusing to negoti- ate with the Union on the subject of arbitra- tion; and insisting that any contract with the Union be for a term of less than year. The appropriate unit involved herein is: All production and maintenance employees at our Waco, Texas, plant, but excluding all office and clerical employees, professional and technical employees, guards, watchmen, and supervisors as defined in the Act. WE WILl. NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their Section 7 rights. WE WILl., upon request, bargain collectively in good faith with the Union as the exclusive representative of all employees in the appro- priate unit, described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such under- 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing in a signed agreement. The collective- bargaining period will begin from the date when we commence to bargain in good faith, and the Union's certification will be extended for a period of I year from the date when we begin to bargain in good faith with the Union. WE: Wlll make whole all the above-named employees who were on strike from May 15 through May 18, 1979, but who worked May 14 and were paid at a lower pay scale than nonstriking employees who also worked May 14, by paying the strikers at the same rates of pay the nonstrikers were paid for work on May 14, with interest. In addition, we will pay the employees who were on strike an amount equal to the bonus paid nonstriking employees who worked May 15 through May 18, 1979, with interest. HUCK MANUFACTURING COMPANY DECISION STATEIMENT 1OF THIE CASE RUSSELL. L. ST:VENS, Administrative Law Judge: This case was heard in Waco, Texas, on December 10, 11, 12, 13, and 14, 1979, and January 22, 1980. The charge in Case 16-CA-8514 was filed on May 29, 1979,' by United Steelworkers of America, AFL-CIO (the Union). The charge in Case 16-CA-8604 was filed by the Union on July 20. By order dated November 8, the Regional Di- rector for Region 16 of the National Labor Relations Board consolidated said two cases for hearing. The com- plaint in Case 16-CA-8514 alleges that Huck Manufac- turing Company (herein called Respondent) violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. The complaint in Case 16-CA-86042 alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respondent, and the Charging Party. FINDINGS OF FACT I. JURISDICTION Respondent is, and at all times material herein has been, a Michigan corporation with its main office in De- troit, Michigan. Respondent maintains a plant located at 8001 Imperial Drive in Waco, Texas, where it is engaged in the manufacture of metal fasteners. During the past year, Respondent, in the course and conduct of its busi- ness operations, purchased and received goods valued in I All dates hereinafter are within 1979, unless stated to be otherwise a As amended at the hearing, with leave of the Administrative Law Judge, to add par 7(k) (threat by Leo Knott), and to correct certain clerical errors excess of $50,000 directly from sources located outside the State of Texas. During the same period Respondent sold and shipped goods valued in excess of $50,000 di- rectly to customers located outside the State of Texas. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOI.VED United Steelworkers of America, AFL-CIO, is, and at all times meterial herein has been, a labor organization within the meaning of Section 2(5) of the Act. I11. THE ALEGED UNFAIR LABOR PRACTICES A. Background3 Respondent's parent corporation owns several plants in Canada and the United States, some of which are or- ganized under United Automobile Workers representa- tion. The Waco facility was established several years ago, and first was organized by the Union in 1978. The Union has been the representative of the following unit, at all times since it was certified December 26, 1978: All production and maintenance employees at Re- spondent's Waco, Texas plant, but excluding all office and clerical employees, professional and tech- nical employees, guards, watchmen, and supervisors as defined in the Act. Bargaining sessions were held February 9; March 8, 9, and 26; April 10 and 11; May 14 and 22; June 8; July 19; August 2; and November 2. The two principal negotia- tors were Loren Brantley 4 for the Union and L. G. Clin- ton, Jr., Respondent's attorney for Respondent. Others attended for both sides, including representatives from the local union, the IUD. Many proposals were made by both sides, and some progress was achieved, but the par- ties were not able to arrive at a mutually acceptable con- tract, and still remain apart on all economic, and most of the important noneconomic, proposals. The Union al- leges that Respondent has not bargained in good faith, and Respondent contends that it has bargained hard but, nonetheless, in good faith. During the course of bargaining, and at the suggestion of Brantley, some of Respondent's employees went on strike May on 15. The strike was not successful, and the striking employees returned to work on May 19. On May 21 Mervin Mull, Respondent's vice president and general manager, made two speeches to employees, one at 7 a.m. for some employees and one at 3:40 p.m. for those employees who did not attend the earlier meeting. The General Counsel alleges that, during the speeches, Mull departed from a prepared text and made certain statements which constituted violations of the Act.5 Re- spondent contends that Mull read the text, departing :' his hackground summary is based on credited testimony and evi- dence that is not in dispute. I4 Idividals are referred to herein by their last names, with first ini tials in the event last names are the same as other last names. r The prepared text, G.C Exh 2, is not alleged to be in violation of the Act other than i those specific instances discussed infra. 742 HUCK MANUFACTURING COMPANY therefrom only at the start of the speech in order briefly to welcome the employees to the meetings. During the course of negotiations Respondent institut- ed certain of its proposals on the basis that the parties were at impasse. The General Counsel contends that the proposals were instituted in the absence of an impasse, and that Respondent's actions constituted violations of the Act. On May 21 Respondent discharged Norbert Fetsch, and the General Counsel alleges that the discharge was in violation of Section 8(a)(3) and (I) of the Act. The General Counsel also alleges that several statements and actions by Respondent's supervisors and managers con- stituted violations of Section 8(a)(l) and (3) of the Act. The allegations of the complaint are discussed below, se- riatim. B. Alleged Solicitation and Threat by Bourgault The complaint in Case 16-CA-8514 alleges that, on May 10, Respondent's supervisor, Paul Bourgault, solicit- ed an employee (Fetsch) to drop his union activity and threatened him with job loss. Respondent first was made aware of Fetsch's union ac- tivity in late October 1978, when he commenced wearing a union badge approximately 1-1/4 inches in diameter, reading "Vote yes for U.S. Steelworkers, AFL-CIO." Approximately a week later Fetsch added a second badge of approximately 1-1/4 inches in diameter, to his clothing, stating "Voluntary Organizer." Both badges were plainly visible, on Fetsch's chest. The two badges were worn daily from late October on, and were seen by Bourgault, who was Fetsch's supervisor, as well as other supervisors and management personnel. During the same period of time, approximately 60 or 70 employees wore the vote badge, and at least 15 employees wore the orga- nizers' badge. In October and continuing until mid-De- cember, Fetsch distributed handbills in front of the plant, on more than five occasions. Fifteen or more other em- ployees participated in the handbilling. Bourgault and other supervisors and management personnel, from a dis- tance of 10 to 50 feet, saw Fetsch distributing the hand- bills. In addition, Fetsch distributed a booklet 6 with pic- tures of babies and captions relating to boss-employee conduct, to between 5 and 20 employees. Other employ- ees also distributed handbills and the booklets. Fetsch and Bourgault had a conversation on May 10.7 According to Fetsch, Bourgault said several supervisors 6 G.C. Exh. 10 7 Fetsch testified concerning two separate conversations he had in Oc- tober and November 1978 with Bourgault and Harold Gibson, Respon- dent's personnel manager. According to Fetsch. Bourgault reprimanded him for being out of his work area, and told him in front of other rank- and-file employees that he was "a union trouble-maker," and Gibson im- plied that Fetsch's union activity adversely could affect his receiving extra money for training other employees. Fetsch further testified that, during Thanksgiving week of 1978, he asked for a day's vacation prior to Thanksgiving and that Bourgault refused, after swearing and accusing Fetsch of organizing the Union on company time. The alleged incidents were beyond the 10(b) period, and are not alleged as violations of the Act. This testimony was admitted on the grounds of motive and animus Bourgault testified that he reprimanded Fetsch in October because of complaints from other supervisors that Fetsch was in their departments disturbing employees, but that no other subject was discussed Bourgault also testified that, in December 1978, he told Fetsch, "There's nothing had complained to him about Fetsch going into depart- ments other than his own, to conduct union business on company time, and that such activity must be stopped. Fetsch continued: I said, "Paul, you know I got to go into the other Departments, to do my job," and he said-he said, "I want you to cool it, because," he said, "The Company's getting on my ass and," he said, "I'm getting a lot of heat from them." He said, "Just as long as you kind of cool it down, you'll be all right." And then, I told him, I said, "Paul, I want to know why you've been getting on me and Gerry's ass about walking around the plant, when there's another employee named Herb Voss, that's been walking aroun, but you ain't said nothing to him." He said, "How do you know that?" and I said, "Well," I said, "It's been going on for 5 years and you haven't stopped him yet." And then, he said, "Norbert," he said, "you ain't nothing but a union agitator; always starting some kind of shit." Fetsch testified that, approximately an hour later, Bour- gault again talked with him and said, among other things, "I want you to know that it's not too late to change your mind about all these activities .... Even Mr. Mull isn't too valuable to be replaced .... every- thing would be all right, if I did change my mind." Fetsch then said he supported the Union 100 percent and would go on strike because Respondent had not been ne- gotiating "in any manner." Fetsch continued: He said, "Norbert, you're really not," he said, "You're really not organizing a union right; you know that, don't you?" and I said, "No, I don't. What do you mean?" and he said, "Well, if you really want to make an impression on the Company, you'd sabotage these machines," and I said, "What!" and I jumped up to the machine, and I done like this [indicates]; I said, "You mean, like this"--going to cut the machine off. He said, "You know damn well that ain't what I mean," and then, I asked him, I said, "Paul," I said, "You know all I want to do is go out there on strike because the Company failed to negotiate; nothing else." And, I said, "Have you got any complaints about my work record?" He said, "No, Norbert." He said, "I wished everyone would do as good a job as what you've done." Fetsch testified that, in mid-February, he and Bourgault argued concerning some of the items that were being ne- gotiated. Fetsch further testified that, following his atten- wrong with your work but I think your attitude has to go " and that he refused Fetsch's request for a walkoff during the Thanksgiving period of 1978. because two senior employees were off and he could not spare Fetsch. Fetsch then asked for I day off. Fetsch crroborated Bourgault on this point Gibson did not deny Fetsch's testimony relatise Io the training molney, but Fetsch acknosuledged that employees customarilN re- ceived additiolnal moncye for training ther employees, and that the addi- tional money was discontinued after the training as completed Fetsch said (iibsor told him his training mrnne as discontinued for the cus- tomary reason Fetsch's testimony relative to the incidents has been care fully considered but is given no weight because his recitations are doubt- fill. and are not determinati'e of an_ issue 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dance at Mull's first meeting with employees on May 21, he met with Mull and Gibson at approximately 7:30 a.m. and was fired, with the reason being given that he sabo- taged No. 61. Fetsch denied sabotaging the machine. As he was preparing to leave, Gibson said, "Norbert, Huck doesn't need people with your attitude working for us." Fetsch testified that he was told none of the details con- cerning the alleged sabotage. Bourgault acknowledged talking with Fetsch on two occasions on May 10. Bourgault said he reprimanded Fetsch during the first conversation, for being in depart- ments other than his own, which was creating com- plaints from other supervisors, and that Fetsch objected to the reprimand: Q. Did he say anything else? A. And that I should-why didn't I tell Herb Ross to stay in his own department like I'm telling them. And I asked him how he knew I hadn't told Herb Ross to stay in his department and he said that I couldn't possibly have done that because he'd been doing it for five years. That's when I told him, "Don't start any shit, Norbert. Just stay in your department." Bourgault testified that, during the second conversation, Fetsch said he supported the Union 100 percent, and that the employees were going out on strike because Respon- dent was not negotiating, or not negotiating in good faith, and that "Gibson stated that anyone going out on strike would be fired." Bourgault said he replied, "Well, if you go out on strike, I'm going to have to put some- body else on your machine," and that anybody, includ- ing Bourgault, Fetsch, and even Mull, could be replaced. Bourgault continued: That's when he said, "Even if it's blown up?" And I said, "Norbert, are you threatening me? Are you saying that there's going to be something wrong with this machine when you leave?" And Norbert said, "What difference does it make? One on one." Q. Say that again, sir. A. "What difference does it make? One on one?" Q. You shrugged your shoulders? A. Yeah. You know like-[witness indicating]. Q. Well, did Fetsch shrug his shoulders when- A. Yeah. He shrugged his shoulders and said, "What difference does it make? One on one." Q. What else was said? A. Well, after that I told him, "Norbert, in the last five years you've worked here, it isn't logical that you should feel this way because you haven't had one hassle from your supervisor since you've been in this department and you still feel this way." And he looked at me and said, "It isn't you. It's the company." And that's how the conversation ended. 8 Petsch generally corroborated this testimony by Bourgault, and ac- knowledged the possibility that he replied to Bourgault when the latter asked if Fetsch was threatening to blow up No. 61, "One on one." Discussion Since the matter of alleged sabotage is the core of this part of the controversy, it is discussed in detail infra. So far as the alleged solicitation and threats are con- cerned, the matter can be resolved only on the basis of credibility. It is clear that much animosity is involved, on the parts of both Fetsch and Bourgault. Fetsch did not testify that Gibson participated in either of the conversa- tions of May 10, and Bourgault attributed to Fetsch a remark that Gibson said anyone going out on Strike would be fired.9 That point was not fully litigated and the record is inadequate to support the complaint. So far as the alleged solicitation is concerned, Bourgault denied Fetsch's allegations, and Fetsch's testimony was not clear or convincing. The remark attributed to Bourgault by Fetsch, "everything would be alright, if I did change my mind," seemed to have been memorized; the General Counsel was able to get it out, only after a long series of leading questions and coaxing. The allegation of solicit- ing is given no credence. So far as the threat is con- cerned, Bourgault denied Fetsch's allegation, and Bour- gault's version of the two conversations is credited; t no threat in violation of the Act is found. C. Fetsch's Discharge Respondent has several production machines, one of which is referred to as multiple-header No. 61 and is in- volved in these proceedings. Fetsch was hired on September 19, 1973, and had a good record with Respondent until the time of the inci- dents discussed herein. t No. 61 is an old machine, and has been a troublesome one for several years. It is sub- ject to frequent breakdown and repair, and is more diffi- cult to keep in operation than Respondent's other pro- duction machines. Although other employees know how to operate No. 61, and have operated it on a regular basis, Fetsch has been its principal operator for several years. Fetsch operates other machines, but keeps his tools at No. 61 because that is where he usually needs them. Fetsch has trained other employees to operate ma- chines, including No. 61, and has worked as a leadman on a temporary basis. The General Counsel contends, and Respondent acknowledges, that, prior to the inci- dents discussed herein, Fetsch has been a diligent and productive employee, with no discipline of record. The strike commenced on May 15, and on the preced- ing Friday, May 11, an incident occurred as Fetsch pre- pared to go off work at 3:30 p.m. Fetsch was to be off work on Monday, May 14. Fetsch started operating No. 61 at 7 a.m. on Friday, and stopped the machine at 3:22 p.m.. At approximately I p.m. on that day, the machine broke down and Fetsch put it back into operable condi- tion. Thereafter, a different defect developed in No. 61 but Fetsch was able to make proper repairs. Minor ad- 9Gibson credibly testified that Bourgault reported on May 14 to him, Mull, and Clinton, the two conversations Bourgault had with Fetsch on May 10. '° Fetsch testified after his discharge at a Texas employment commis- sion hearing, but said nothing at that hearing about Bourgault suggesting that Fetsch sabotaged equipment G.C. Exh 2; Resp. Exh. No. 17. "' Fetsch took a voluntary layoff of more than a year, in 1975-76 744 HUCK MANUFACTURING COMPANY justments were due at the end of the day but, since it was time to quit, Fetsch did not make them. Fetsch went to Bourgault's desk at the close of the shift, to turn in his time and production. Fetsch said nothing to Bourgault at that time, or at any time on May 11, concerning any problem with No. 61.12 Artie Lewis, a supervisor of multiple-headers on the second shift, was at Bourgault's desk when Fetsch arrived. According to Fetsch: I went back to Paul Bourgault's desk-who is my foreman-and Artie Lewis-which was another foreman-they both wished me well; they said, "It's been nice working with you," and I said, "The same to you," and I went and punched out and went home. Q. Did either-did Mr. Bourgault tell you what he meant by that statement? A. No, he just said, "It's been nice working with you." Fetsch further testified that, on May 15 or 16, he called a fellow employee, Ron Threadgill, on the telephone to so- licit Threadgill's participation in the strike and on the picket line. Another employee, Gerry Culverhouse, earli- er had told Fetsch that Bourgault was angry and upset by the condition in which Fetsch had left No. 61 the preceding Friday, and Fetsch asked Threadgill about the matter. Fetsch got the impression during the conversa- tion that Threadgill believed Fetsch had something to do with No. 61 not being in proper condition. Fetsch talked with another employee, Bill Packett, on the telephone May 15 or 16 and asked him about No. 61. Packett said something about some trouble with the knife or a bolt in the machine. Bourgault testified that, during the afternoon of May 10 or 11, he told A. Lewis about his conversation on May 10 with Fetsch (discussed supra), wherein he felt Fetsch had threatened sabotage of No. 61, and suggested that Lewis check the machine.' 3 Bourgault testified that, when Fetsch left work on May 11, Lewis was present, and Bourgault asked, "How's 61?" to which Fetsch re- plied, "Ready to run," and signaled an "O" with his fin- gers. As Fetsch left, he shook Lewis' hand and said, "It's been nice working with you guys." A. Lewis, who had been a multiple-header machine operator, including No. 61, for 6-1/2 years and who has been a supervisor since January 1, 1979, testified that, on Thursday afternoon, Bourgault told him about the lat- ter's conversation with Fetsch and that Fetsch had said something about sabotaging No. 61. Lewis further testi- fied that, on Friday between 3 and 3:30 p.m., Bourgault asked him to check No. 61 out, to see if it could be oper- ated on the night shift. Lewis testified that he was at Bourgault's desk that Friday evening, when Fetsch was leaving work, and that Fetsch shook his hand and said, "Nice working with you." He said Bourgault asked Fetsch if No. 61 was okay, and Fetsch replied yes. Lewis 12 Fetsch testified that Bourgault had told him, in the past, that No 61 was Fetsch's responsibility, and to report problems to Bourgault only when necessary. '3 Bourgault had difficulty remembering whether his suggestion to A Lewis was on Thursday or Friday, and the record is not clear but. in any event. Bourgault is credited so far as the suggestion itself is concerned continued: immediately after Fetsch left at 3:30 p.m. on Friday, he and an employee named Joey Derting went directly to No. 61 and found the following: (1) The ma- chine would not start because it had no oil in it. (2) Oil was put in, but the machine still would not start and an electrician was called to the machine. It was discovered that the cutoff switch, a safety device in a closed box, had been pulled, contrary to customary practice. (3) The machine then was jogged, and the shearing knife fell off, because the screw which held it was completely loose, which would not be a result of normal operation. Lewis stated that had never before happened, so far as he knew, and that, if the machine had been started with the knife so loosened, it could have fallen between the rim and the dies and exploded, possibly with serious injuries resulting. (4) The knockout bar on the fourth punch was loosened and it fell off, which could happen if the screw breaks, but he examined the screw, and it was not broken. Lewis said he never before had seen the knock- out screw loosened in that manner. (5) It was discovered that the oil timer had been readjusted to run continuous- ly rather than to restrict the flow of oil. Thirty gallons of oil ran into the machine before the problem was locat- ed. Normal oil consumption was five each hour or 1-1/2 hours.14 Lewis stated that Fetsch left the machine at 3:22 p.m.; that he and Derting were at the machine no later than 3:35 p.m.; and that he saw no one at the ma- chine during that brief interval. It took 3 hours to get No. 61 in operating condition, after which Derting ran it for the rest of the evening. Lewis stated that, in his opin- ion, the machine was sabotaged by Fetsch, since the problems they found would not have been caused by normal operation. Lewis stated that, since Fetsch was discharged, No. 61 has been operated continuously, two shifts per day, except during times of repair and mainte- nance, and that there have been no extensive repairs. Fetsch testified that, accidentally, he may have hit the cutoff switch; that the screw on the knockout bar may have been loose, but that he did not loosen it: that he loosened the knife screw, but tightened it back up; that he did not know what was wrong with the oil distribu- tion mechanism; that, possibly, someone may have changed the electric switch; and that, if the oil timer was off as far as A. Lewis said it was, someone would have to have changed it intentionally. '5 Discussion Beyond the fact that the record shows that Fetsch's work and attitude were satisfactory prior to the advent of union activity in the plant, Fetsch credibly testified that he was complimented by Bourgault and other super- 4 Gibson credibly testified that, on May 14. A. Lewis left a note on his desk, describing what he had found wrong with No 61, and that L.ewis later gave him an oral report. Gibson said he. Mull, and Clinton met and decided to discharge Fetsch. because of the seriousness of the matter Gibson said the three of them considered, but decided against, criminal prosecution of Fetsch ' Fetsch testified that, in March 1979. Bourgault accused him of sabo- laging No 61, when a part was broken Bourgault denied accusing Fetsch on that occasion of sabotage, but testified that he did accuse him of negligence ourgault is credited This incident is given no weight 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors on several occasions, and that testimony was not challenged by Respondent. It is credited. Fetsch was an active union advocate, but many other employees also were quite active. Fetsch testified that, at one time, more than half the employees wore union badges, and that more than 15 employees distributed handbills. It is clear that Fetsch was the principal operator of No. 61, but it is equally clear that other employees were capable of running the machine, and did operate it. Fetsch appeared, as a witness, to exaggerate the com- plexity of No. 61, and the difficulty of keeping it in oper- able condition, and he appeared to overestimate the de- grees to which Respondent placed its faith and reliance in his operating ability. However, the fact that No. 61 was an "old dog" of a machine, balky and prone to breakdown, seems to be supported by the record. Bourgault's testimony to the effect that, on May 10, Fetsch mentioned the possibility of sabotage, was partial- ly supported by Fetsch, and is credited. Fetsch's testimony that, when he left work on May 11, Bourgault and Lewis stated to him, "It's been nice work- ing with you," appeared strained and unlikely. Bourgault and Lewis denied making the statement, and Lewis testi- fied that the statement was made by Fetsch. Lewis was a particularly impressive witness, and he and Bourgault are credited on this point. A basic question is whether or not No. 61 actually was sabotaged or tampered with in order to make it at least temporarily inoperable. That point was laid to rest by Lewis, in whom reliance is placed as a witness. Fetsch testified that, although No. 61 was producing defective parts when he shut it down on May II, he did not ap- prise Bourgault of that fact; that he reported nothing about any problem with the machine. Within just a few minutes, Lewis and Derting found the machine inopera- ble, with dangerous defects that required 3 hours of cor- rective work. These defects were described in detail at hearing by Lewis, and it is clear that the defects were not the result of unintentional acts. They were too remote for accidental occurrence, and too numerous to have occurred inadvertently. Fetsch testified that he vol- unteered several years ago to operate No. 61 because it was a "challenge." He said he knew more about the ma- chine than anyone else in the plant. He said he left it op- erable when he quit work on May 11. No one was near the machine between 3:22 and approximately 3:35 p.m. There are only two reasonable alternatives. Either Fetsch left the machine inoperable, or Lewis fabricated a complex and lengthy piece of testimony. The latter is not likely, not only because Lewis appeared to be telling the truth, but also because the facts he related were so de- tailed. It is possible, of course, that a series of unusual and rare accidents could have occurred to the machine, but that possibility is remote. They would have to have occurred at the precise moment Fetsch shut down the machine, since it was operating when he stopped it. Fi- nally, the fact that, so far as Fetsch knew, No. 61 would not be operated until he was on leave and on strike cannot be ignored. The timing of the defects is suspi- cious. It is found that, when Fetsch left the machine at the end of his shift on May 11, No. 61 was inoperable. Fetsch was told that he was fired for a single cause; i.e., sabotage to machine No. 61. That sabotage, or at least Fetsch's negligence, is found as a fact. Fetsch thus gave ample cause for Respondent to discharge him, and it was not incumbent upon Respondent to overlook the matter, only because Fetsch was a union advocate. Fur- ther, it was not shown that Respondent was out to rid itself of union sympathizers. More than half the employ- ees openly displayed union badges, and many of them openly distributed handbills, yet only Fetsch was dis- charged. He was not shown to be a leader of the union movement in the plant, although he was vociferous and insistent upon the right of employees to organize. Fetsch's discharge was not a violation of the Act.' 6 Assuming, arguendo, that Fetsch did not make No. 61 inoperable, it is clear that Respondent reasonably be- lieved that the machine was inoperable because of Fetsch's actions. That Respondent held such a belief is shown not only by the credited testimony of Bourgault and Lewis, but also by Fetsch's testimony relative to his conversations with Culverhouse and Threadgill on May 15 or 16, discussed supra. Under the facts Respondent had before it, the only reasonable conclusion it could reach was that Fetsch had made the machine inoperable. In such circumstances, Fetsch's discharge was not a vio- lation of the Act. 1' The General Counsel argues that Fetsch's situation is that of an economic striker who was refused reinstate- ment, because he was fired on May 21, after the strike was over, rather than on May 11, when the incident oc- curred. However, the facts indicate otherwise. When the condition of the machine became known, Fetsch had left the plant and it was Friday afternoon. Fetsch did not work on the weekend, or on Monday. Thereafter, Fetsch was on strike until he returned to the plant on May 21. He was fired upon his return, effective May 11. Respon- dent had no opportunity to face Fetsch and tell him why he was discharged until May 21. The General Counsel argues that Fetsch was not given an opportunity to answer the charges, hence the reason for the discharge was pretextual. However, that infer- ence is not warranted. Respondent had sound reason to believe that Fetsch intentionally made No. 61 inopera- ble'8 and, under the facts it had before it, nothing was to be gained by arguing whether or not there was some reason for the machine's defects. Respondent's manage- ment was angry, both at the time of its discovery of the defects and at the time Fetsch was fired. Fetsch was aware of that anger as early as May 15 or 16, and he knew the alleged reason for the anger. If Fetsch were in- nocent of any wrongdoing or negligence, it would seem that he would have got in touch with Bourgault, or some other supervisor, immediately upon learning from Cul- verhouse about Respondent's anger, rather than merely 16 Concrete Technology, Inc., 224 NLRB 961 (1976); M Restaurants, In- corporated, d/b/a TheMandarin, 223 NLRB 725 (1976); Erie Strayer Com- pany, 213 NLRB 344, 346, fn. 9 (1974). 17 Vaughan Printers, Inc., 196 NLRB 161 (1972); L. B. Woods. L. J. Reischman, C D. Dofflemeyer & G. W. Eing, d/b/a Breckenridge Gaso- line Company, 127 NLRB 1462 (1964). 18 Threadgill, a fellow employee, gave Fetsch the impression on May 15 or 19 that he believed Fetsch had made No. 61 inoperable. 746 HUCK MANUFACTURING COMNPANY calling another employee on the telephone. Certainly he was on easy speaking terms with Bourgault. The General Counsel argues that, since Respondent's maintenance records show no entry for May 11 relating to No. 61, it must be inferred that nothing was done to the machine. However, no maintenance or repairs was effected that day. Resetting switches, changing the oil flow, and tightening knives do not constitute mainte- nance or repairs, as those terms customarily are used. To the contrary, those actions indicate the reason for Re- spondent's belief that the machine had been tampered with. Subtle changes in a machine easily can cause its disruption. Obvious damage would be foolhardy. The General Counsel argues at some length concern- ing Fetsch's good record with Respondent. However, as pointed out by Respondent, that record is acknowledged, and is not in issue. The General Counsel also argues at some length con- cerning Respondent's intense dislike of the Union in gen- eral, and Fetsch in particular, and quotes several state- ments attributed by Fetsch to Bourgault. Those state- ments are discussed supra. However, it is noted that Fetsch appeared to be hostile toward Bourgault and Re- spondent, and it is apparent that Bourgault did not wage a one-sided campaign. Fetsch did not seem cowed by, or afraid of, Bourgault, and he did not hesitate to speak his mind when he talked with Bourgault. Further, as noted above, Fetsch was not alone in supporting the Union, but there is no evidence that Bourgault was giving any of the others a hard time because of their union activity. D. Alleged 8(a)(1) Actions by Mull Paragraphs 7(a), (b), (h), and (i) of the complaint in Case 16-CA-8604 allege that, on May 21, Mull threat- ened and coerced employees, and instituted an illegal rule. These allegations arise from a speech Mull gave to striking employees after they returned to work on May 21. The General Counsel's witnesses contend that Mull gave a speech that was partially read and partially ad- libbed, and Respondent's witnesses contend that Mull read the entire speech,1 9 except for an opening remark, which is not in issue. The speech was given only to em- ployees who had been on strike, and was given in the lunchroom, one in the morning and one in the afternoon. The employees sat around tables, facing the speaker's stand. Mull stood behind a dais, with Clinton seated beside him and to the rear. Employees Dennis Ayers, James Nitschke, Michael Denny, and Gerald Wilson, among others, attended the morning meeting, and employee Orville Chappell, among others, attended the afternoon meeting. All four employ- ees testified for the General Counsel, and all of them stated that Mull made statements that were not read from the document Mull had with him. However, that contention is not credited, for several reasons. (1) All four employees agreed that Mull had his speech with him, and apparently read from it, at least part of the time. The employees said Mull occasionally looked up and made statements, but Mull agreed that, occasionally, "' The speech is G C Exh 2 he did look up while continuing the speech. Notice is taken of the fact that speakers commonly carry state- ments in their mind, and deliver them for effect, while looking at the audience. Mull and Clinton credibly testi- fied that Mull did not depart from the written text, and Clinton stated that he followed the text, with his eyes, word for word, while Mull spoke. (2) The statements at- tributed to Mull by the employees as ad-lib statements in many instances are so similar to the text that the conclu- sion is invited that they were textual, but remembered somewhat differently. The employees were under stress at the time, and were being reprimanded, as discussed infra. It would be logical for them to remember state- ments in the context of the meeting, rather than as isolat- ed statements that were read. Denny put the meeting in perspective when he testified after reading General Counsel's Exhibit 2: I'm sure there was other things said, but they don't come to mind. I was despondent and depressed, and felt like I knew most of what was going to be said, anyway, so I didn't pay that close of attention to it. In similar vein, Chappell testified: Q. Do you remember every last word that Mr. Mull said? A. No, sir. Q. Do you recall anything else that Mr. Mull said, during that talk? A. I don't remember parts of it. Q. About any-is your memory exhausted at the present time, as to what Mr. Mull said during that talk? A. Not altogether; I've got some pieces of things that I remember, but I don't remember that much of it. Q. Well, all right. If your memory is- A. My mind was straying, a little bit. Q. Pardon me? A. My mind was straying-started straying a little bit, while he was talking. After reading General Counsel's Exhibit 2, Chappell stated: A lot of this is similar, but I took it in a different way. Q. All right. A. It may have been that I just looked through somewheres else, but I don't think so. On cross-examination, he stated: Q. Do you remember your testimony just before that point, that, during the course of the speech, your mind began to wander and you stopped paying attention? A. Right; that is-some of the things that he said was what got my mind wandering. I was mad about it. (3) Ayers testified that Mull remarked that Respondent's attorney advised him not to depart from the text, but 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he intended to depart, anyway. That testimony is given no credence. First, Ayers was not a convincing witness. Second, the statement is illogical, and appeared to be contrived and self-serving. Third, Mull's and Clin- ton's contrary testimony is credited. Nitschke and Denny testified to a statement by Mull which was to the same effect but, as in the case of Ayers, that testimony seemed unrealistic and unlikely, and is not credited. (4) All em- ployees testified either that they did not hear, or pay at- tention to, everything Mull said, and there are numerous and significant differences among the statements attribut- ed to Mull by the employees. It is found that Mull read the speech to the employees, without departure therefrom except a single opening statement that is not in controversy. In assessing the speech, the wording of General Counsel's Exhibit 2, and no contrary testimony, is considered. Mull's speech is very strongly worded, and portions thereof border on intemperate. Mull started the speech by stating, "Good morning. I guess I should say wel- come and I'm glad to see you all are back, but I really can't." He then accused the employees of sabotage, van- dalism, name calling, intimidations and threats, with "the backing and support of a mob," and conduct that was "very disgusting." Possibly those statements were true, but Mull offered neither to the employees nor to the Ad- ministrative Law Judge any specific examples of miscon- duct (other than that of Fetsch), nor is there any evi- dence that any action was prosecuted. Further, Mull tarred all employees with the same brush; it seems un- likely that all employees were guilty of the same acts, if they were guilty of anything. 20 Mull continued, and warned the employees that they had better shape up, or ship out; that nonstrikers were antagonistic to the strik- ers; that they would have to abide retaliation by non- strikers; that they must toe the line; and that company rules thereafter would be strictly enforced. Had miscon- duct been established, possibly some of what Mull said could be found protected by the Act as free speech. However, Respondent's union animus is apparent, 2 ' and Mull went to considerable length in disparaging employ- ees and the Union in his speech. Under such circum- stances, it is clear that the speech was a reprimand to employees for engaging in a lawful strike, and was coer- cive. 22 The manner and the tone in which the speech was given to the strikers were such as to discourage their protected activity, and would have the effect of making the employees reluctant to consider any future strike, whether for economic or for unfair labor practice reasons. 20 For the proposition that unauthorized acts of violence on the part of individual strikers are not chargeable to other union members without proof of participation, see Coroner Casuals. Inc., 207 NLRB 304 (1973) 2' Nitschke's testimony concerning an antiunion speech to employees in December 1978 by Arthur Ackerman, Respondent's president, was not denied and is credited Nitschke was credibly corroborated by Denny 22 Our-Way, Inc./Our-Way Machine Shop. Inc., 238 NLRB 209 (1978), International Union of Operating Engineers. Local 12. AFL-CIO (Office and Professional Employees International Union. Local 30. AFL-CIO, CLC), 237 NLRB 1556 (1978). This conclusion is buttressed by the testi- mony of Denny and Chappell, that they were confused and angry be- cause of Mull's speech. The fact that Respondent paid nonstrikers double time for working on May 14, and triple time for overtime work that day, while paying strikers straight time and double time, respectively, for the same day, is not in dis- pute. Nor is the fact that the extra pay to nonstrikers was given, as a reward for not striking, in dispute.' Giving the pay in the manner followed by Respondent was dis- criminatory, since all employees, both strikers and non- strikers, worked their regular hours on May 14. Possibly the conclusion could be different had Respondent estab- lished any misconduct by the strikers, but no such mis- conduct was shown, either on May 14 or during the period of the strike. So far as the record shows, May 14 was an uneventful day at the plant. The strike also was uneventful, so far as the record shows. The testimony of Gibson and Mull that there was misconduct by the strik- ers cannot be accepted as proof, since it was general and vague, and is not supported by any evidence. The burden to show justification for the discriminatory wage payments rested with Respondent, and that burden was not met. Therefore, the payment of double and triple time to nonstrikers was discriminatory under the Act, 24 and it necessarily follows that Mull's statement to strik- ers, that such payment was made, was coercive and a violation of Section 8(a)(1) of the Act. 2 5 As discussed above, Mull's speech generally, and this statement of dis- parate wage payments specifically, would have the effect of discouraging all strikes by employees, whether for economic or for unfair labor practice reasons. Mull's speech included the following statement: Had you stayed on strike one day longer many of you would have been permanently replaced and some of you, today, wouldn't have a job. If you strike again the replacement job awards will be made immediately. The three-day posting procedure will not be followed for the duration of the work stoppage and new people will be hired to fill the ap- propriate openings. You are not indispensable, nor are you irreplaceable. I think you should know that and I hope you understand that. That statement is clearly coercive, since it avers that strikers, whether for economic or for unfair labor prac- tice reasons, will be permanently replaced, immediately upon striking. Such a statement violates the Act.25 Mull stated to employees: "We were contacted by the Food Stamps government office and have challenged your right to receive food stamps. I'm not sure what the outcome of that will be." This statement possibly would not have been coercive but for the surrounding circum- stances. Mull was angry, and made that fact clear to the strikers. He was angry because of the strike, and made that clear too. So far as the record shows, it was a lawful strike. Lawful strikers may or may not be entitled to 2s Gibson's explanation for the bonus pay is in accord with this state- mnent, although his explanation, in effect, is based on a solace approach. z4 This violation is discussed infra. 25 Brown & Connolly. Inc., 237 NLRB 271 (1978); Perko's Inc., 236 NLRB 884 (1978). 2"' Carpenters' District Council of Jacksonvlle, Florida and Viciniry and .ocal 627 , tel l, 221 NLRB 876 (1975). 748 HUCK MANUFACTURING COMPANY food stamps, but that fact would be of concern to Re- spondent only in its capacity as a citizen. Here, Mull made it clear that he challenged the right of strikers to receive food stamps, solely because of his anger at the strikers. His challenge to the food stamps was retaliatory, and dictated by a desire to hurt the strikers; it was not dictated by a desire to see that the food stamp program was properly administered. Thus, the statement was not a harmless one, divorced from Respondent's desire for revenge; 27 Mull's statement to the strikers was harass- ment, and violative of Section 8(a)(l) of the Act. 28 E. Alleged Coercion of Employees Paragraph 7(c) of the complaint in Case 16-CA-8604 alleges that Respondent coerced its employees by paying nonstrikers double and triple time between May 14 and 18, as an inducement to prevent employees from engag- ing in a strike. The fact of disparate wage payments is not in dispute, as discussed supra. As discussed elsewhere herein, the disparate payments for work on May 14 was discrimina- tory under the Act, and telling the strikers about that payment was coercive under the Act. Finally, there is no dispute concerning the fact that the increase of wages given to nonstrikers from May 14 through May 18 was not discussed with, communicated in advance to, nor bargained with the Union. To the contrary, the Union and Respondent during that week in May were still in the process of negotiating for a contract. Mull and Gibson acknowledged that the only reason for the in- crease was to "reward" the nonstrikers, or to repay them for their period of trial during the strike. A clear failure to bargain, in violation of Section 8(a)(5) and (1), is shown. The concurrent interference and coercion alleged by the General Counsel, on the basis of the effect the wage increase had on employees' Section 7 rights, is ap- parent. F. Alleged Threat by Knott Paragraphs 7(d) and (e) of the complaint in Case 16- CA-8604 alleged that, on or about July I I and 18, Howard Knott, one of Respondent's supervisors, threat- ened employees with discharge if they engaged in strike activities, and attributed to the Union Respondent's fail- ure to grant a wage increase to its employees. Francis Venable, one of Respondent's employees, testi- fied that he and other employees, including Dennis Ayers, talked with Knott on July 11 or 18: And so, Mr. S. L. Pimpton said-asked him, "Well, when are we going get another raise; when are we going to get a raise?" and Leo Knott-Mr. Knott said it wasn't for him to decide about our raises. It was because of the Union, that we were not getting a raise and he also replied that if any- body walked out, this next time, we would be auto- 27 Wilker Bros. Co., Inc., 236 NLRB 1371 (1978); .VL.R.B. v. Interstate Engineering, a Division of A-T-O, Inc., 583 F.2d 1087 (91h Cir. 1978). 28 Cf Star Kist Samoa, Inc.. 237 NLRH 238 (1978); Sur -Tin. /In and Surak Leather Co., 234 NL RB 1187 (1978) matically terminated. That's when he said; that's what Mr. Knott said. Ayers testified, but was not asked about, nor did he tes- tify concerning, Knott's alleged statements. Knott testi- fied that he met with a group of employees in July, and S. L. Pimpton asked, "When are we going to get more money or do we have to take a walk?" Knott stated: I told him that the money was not up to me. It was out of my hands and I also informed them that if they were to walk again, that some of them could be replaced. Q. Was there any other discussion at that meet- ing, that you can recall? A. No. Knott denied that he threatened employees with dis- charge if they engaged in strike activities, and denied at- tributing to the Union Respondent's failure to give a wage increase. Discussion Knott was an unusually impressive witness, and his denial of Venable's testimony is credited. Ayers, who was present at the conversation, did not testify concern- ing Knott's alleged remarks. These allegations of the complaint are not supported by the record. G. Alleged Threat by Lewis Paragraph 7(f) of the complaint in Case 16-CA-8604 alleges that, on or about April 15, Harvey Lewis threat- ened employees with mass discharge if they engaged in strike activities. Denny testified that he talked with Lewis, a ware- house supervisor, in mid-April: Well, we talked about the Union for awhile and I'm not for sure about specifics. I do remember asking Harvey about what he thought would happen, if-if we went on strike, and he replied that we'd all be fired. Denny testified that he talked with Lewis, who was a former union organizer and who "spent most of his time talking down the Union" at the plant, although Lewis was formerly active in a union organizing campaign at Respondent's plant, two or three times every night, for a total of more than 150 times. Denny said the subject of a strike was frequently discussed by him and Lewis, and that he did not remember "who or why this particular conversation got started." On cross-examination, Denny said, Lewis stated, "Well, you're going to be fired, if you go on strike." Lewis denied that he ever told Denny or any other employee that employees would be discharged if they went on strike, but said he once told Tommy Wilhite, an employee who asked what would happen to employees who went on strike, that they could be replaced. 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Discussion Denny's testimony was too uncertain to provide a basis for finding a violation of the Act, in the face of Lewis' credible denial. It seems unlikely that Denny would remember the specific words spoken by Lewis on one occasion 9 months past, out of a total of more than 150 occasions when they discussed strikes and the Union. Denny's testimony on this issue seemed to have been contrived, and is not credited. H. Alleged Threat by Gibson Paragraph 7(g) of the complaint in Case 16-CA-8604 alleges that, on or about June 15, Gibson threatened an employee that, if employees struck, all of them would be discharged and would not be reemployed for 3 years. Denny testified that he went into Gibson's office in mid-June, to talk about layoff rights of employees, and that, during the conversation: I told Mr. Gibson, also, I said, "I can't run the plant without the people that were on strike" and he indi- cated that they could meet their production. And so, I told Mr. Gibson that he may have a chance to find out again, in a couple of weeks, and, at that, he became upset and he said that if we did, indeed, go out on strike again, that we'd all be fired, and that they would not wait three days to post our jobs this time. I told Mr. Gibson at that time, that he knew as well as I did that they couldn't fire us; they could only replace us. And he responded that if- that it was the same thing if it took three years to get your job back. Denny repeated the conversation on cross-examination in quite different language, but the meaning was the same. He said employees and members of management com- monly talked about the Union, and that his conversation with Gibson was a friendly one. Gibson denied telling Denny that employees who went out on strike would be fired, or that they would be discharged and would not be employed for 3 years. Gibson testified that he and Denny argued about Re- spondent's right to replace striking employees, and that he told Denny: "Well, Mike, that's my understanding of the law. The company has the right to replace striking em- ployees." And I may have used the word "perma- nently" replace striking employees and he chal- lenged that. He says, "No. There's no way that you can re- place us permanently." And I conceded then. I said, "You're right, Mike. There's no way we can re- place you permanently. We can hire people perma- nently during that time but when that person leaves his position or by a job bid to another position or should he leave our employment, at that time, I do have to contact that employee that was replaced and offer him his old job back, if that be a week, two weeks, two months, six months, three years, I must contact that employee and offer him his posi- tion back." Discussion As Denny stated during his testimony, conversations between employees and supervisors concerning union and strike matters were common. The conversation be- tween Denny and Gibson was not unusual, and it is clear that Denny was not fearful of Gibson, or coerced by him. Gibson was a convincing witness, and his version of the conversation, which is supported by some of Denny's testimony, is accepted, as is his denial of portions of Denny's testimony. Denny made it plain to Gibson that he disagreed with him, and he obtained Gibson's retrac- tion of the term "permanently replaced"; Gibson freely acknowledged that he was wrong in using the word "permanently." Gibson then went on to explain in detail to Denny what he meant by "replaced," and his explana- tion was not in error, nor was it coercive. This allegation is not supported by the record. I. Alleged Threat by Gibson Paragraph 7(j) of the complaint in Case 16-CA-8604 alleges that, on or about February 1, Gibson threatened an employee by telling him that his brother would not be hired because the employee was engaged in union activi- ties. Chappell testified that he called Gibson on the tele- phone from his home, in late January or early February, to ask if Respondent would hire his younger brother, and Gibson replied that he could not hire him at that time, but that he would consider it. Chappell said he had the impression that Gibson would not hire his brother be- cause Gibson thought Chappell was a troublemaker, like some others in the plant that Chappell knew about. Gibson categorically denied the allegation of the com- plaint, and Chappell's testimony. Gibson testified that Chappell's brother has had an application on file with him for 1-1/2 or 2 years, but has not been hired, princi- pally because of lack of qualifications. Gibson stated that Chappell called on the telephone about his brother-in- law, who applied for a job several months ago, and asked why Gibson did not hire him rather than a Mexi- can who had been hired. Gibson said Chappell referred to the Mexican in extremely profane and derogatory terms. Gibson said he told Chappell that his brother-in- law had a back problem, and that Chappell's attitude toward Respondent was so poor and so frequently ex- pressed that his recommendation concerning an applicant was not needed. Gibson told Chappell he was not going to hire his brother-in-law. Discussion Chappell was not a convincing witness, and his testi- mony on this issue is given no credence. Gibson's ver- sion of the incident is credited. No violation of the Act is found. It is clear that the brother-in-law was not hired because of a medical problem and it is equally clear that Gibson's doubts concerning the value of Chappell's rec- ommendation were based on sound reasons. 750 HUCK MANUFACTURING COMPANY J. Alleged Threat vb Knott Paragraph 7(k) of the complaint in Case 16-CA-8604 alleges that, on or about May 11, Knott threatened an employee with mass discharges, if the employees en- gaged in strike activities. Denny testified that he had a friendly conversation with Knott on May 11: And we got into a discussion about the Union, and I asked Mr. Knott what he felt would happen, if the employees went on strike and he-he said that the Company couldn't afford to let the employees run the Company or control the Company, and that they'd have to-if we went on strike, I believe he said, they'd fire us all. Knott testified that he and Denny exchanged pleasant- ries on May 11, but that nothing else was said. Knott denied Denny's allegations, and said he can recall no em- ployee ever asking him what would happen if the em- ployees went out on strike. Discussion Even though Knott and Denny apparently were on good terms, the question that Denny allegedly pro- pounded to Knott seems farfetched. Denny did not appear to be so naive as to think a supervisor would dis- close company plans to him. Such a question logically would have been asked of a union representative, rather than a member of management. Further, the question was unnecessary, since commonsense would tell Denny that Respondent would do all in its power to keep the plant in operation. Denny would know that not all em- ployees were in favor of a strike, and that some of them would continue working. Finally, Denny was equivocal in his testimony. He testified that he "believed" Knott said Respondent would "fire us all." Knott's denial is credited, and no violation of the Act is found on this issue. K. Refusal To Pay Strikers the Same As Nonstrikers for Work on May 14 This allegation of paragraph 8 of the complaint in Case 16-CA-8604 is discussed supra. The fact of the dis- parate payment is not in dispute. As discussed above, Mull and Gibson testified that the extra payment to non- strikers was made, without negotiation with the Union, as a reward for working, or as solace for the heckling and harassment they took from the strikers. However, Mull made it clear in his speech to employees, that he was angry about the strike, that he did not welcome the strikers back to work, and that the strikers were going to be working at Respondent's sufferance. Mull pointedly told the strikers about the disparate payment. That piece of information was not necessary to the job, or to any- thing else, so far as the strikers were concerned: The only effect it could have would be to inform the strikers that their nonstriking fellow employees were being given a reward because of their taking Respondent's side in the dispute. That would have the effect of making the strik- ers reluctant in the future to strike again, which clearly constitutes interference with, and restraint of, employees exercising their Section 7 rights, as well as discrimination because of those employees' union activity. The only logical manner in which this violation of Section 8(a)(1), (3), and (5) of the Act can be remedied is to require that Respondent make whole all strikers who worked May 14, by paying them at the same wage scale that was paid to nonstrikers. L. Alleged Violations-Darlene Brinkley Paragraph 9 of the complaint in Case 16-CA-8604 al- leges that, between May 14 and May 19, Respondent failed and refused to award a toolcrib attendant position to Brinkley, because of her protected activity. The essential facts concerning this issue are not in dis- pute. Brinkley bid on the job on May 14, went on strike May 15, returned from strike on May 21, was informed by Gibson on May 23 or 24 that the job was awarded to another employee, and received another toolcrib award which she wanted on July 2 or 3. After she went to the new job, Brinkley received three raises within less than 6 months, and was transferred to a different shift, which she prefers. Gibson did not testify relative to this issue. Discussion The General Counsel did not discuss this issue in his brief. It is apparent that Respondent was not antagonistic toward Brinkley, nor did it retaliate against her in any manner because she was a striker. Respondent continued to operate the plant during the strike and, so far as the record shows, operated it in the same manner during the strike as at all other times. Thus, it is inferred that it was necessary for business reasons to fill the job for which Brinkley had bid during the strike. The strike was an economic one, thus the job was available for a new employee, had Respondent desired to fill it in that manner. Respondent had no way of knowing whether, or when, Brinkley would return to work. Respondent did not violate the Act, as alleged in this issue. M. All.eged Failure To Bargain in Good Faith The complaint in Case 16-CA-8604 alleges several specific acts as indicia of Respondent's failure to bargain in good faith, and as violations of Section 8(a)(5) and (I) of the Act. Those allegations are discussed seriatim below. I. Arbitration Commencing at the March 8 bargaining session, Clin- ton took the firm position that Respondent rejected the entire concept of arbitration, and he did not move from that provision at any time thereafter. On one or two oc- casions he indicated, in response to Brantley's questions, that he was willing to "talk about" arbitration, but that Respondent would not agree under any conditions to an arbitration provision in a contract. Clinton took the posi- 751 I:)ECISI()NS OF NATIONAL LABOR RELATIONS BOARD tion at all times during negotiations that Respondent never had an arbitration clause in 20 years of contracting with United Automobile Workers, and proposed to the Union that the work continuation provision in the con- tract be suspended after the final stage of the grievance procedure, whereupon the Union could call a strike over any unresolved grievance. However, Clinton insisted on withholding from the Union's right to grieve at least two. major areas of controversy. Those areas were new jobs (Respondent's proposed art. XII) and group insurance (Respondent's proposed art. XXV). Brantley, at all times during negotiations, insisted on a binding arbitration pro- vision, and contended that Clinton's proposal would result in excessive friction arising from being required to engage in many strikes, or forgo grieving. Brantlley testi- fied that the Union was willing to consider any reason- able alternative to arbitration, and so advised Clinton, but that he never received an alternative proposal. It is clear that both sides had firm positions on the matter of arbitration, but it is equally clear that Clinton's proposal effectively stripped the Union of power to settle grievances. The strike alternative offered by Clin- ton was no alternative, in effect, and, further, Respon- dent already has demonstrated that it was adept at han- dling strikes. The one of May 15 failed within a few days. It could be said that this issue was a matter of hard bargaining, but the entire course of negotiations must be reviewed, not just portions thereof. Regardless of Re- spondent's relationship and contract with another union at other locations, in Waco it was negotiating with Brantley and his Union. So far as disputes were con- cerned, Clinton's proposal would put the Union in no better position than it occupied without a contract. In- transigence is not necessarily impermissible in negotia- tions but it may, as in this case, be an indication, with other indicia, that bargaining is being carried out with no real intent to reach agreement. It is true that Respondent cannot be told that it must submit to arbitration, but it is equally true that it can be told to negotiate in good faith, with the intent to reach agreement if possible. The key words are good faith. 2. Wage increases and cost-of-living allowances Throughout the negotiations, Brantley insisted that wage increases must be given to employees. Negotiations were divided into two areas, i.e., those concerning eco- nomic and noneconomic subjects, but Brantley contend- ed at all times that no item or items should be imple- mented separately, that no item should be implemented until there was a single integrated contract. The Union's February 9 proposal included a $6 mini- mum wage with 11-cent increments thereafter. The par- ties agreed to defer negotiations on economic items until some resolution had been reached on other issues, and on April 10 negotiations on economic items were initiated. The Company's initial position was to maintain the status quo on all economic items except a shift differential, which it proposed to increase in its proposal of March 8. Clinton testified that the shift differential proposal was designed to resolve the problem of obtaining and retain- ing qualified employees on the second and third shifts. Brantley raised the issue of wage increases and cost-of- living adjustments (COLA), and Clinton responded by saying it would give no cost-of-living adjustment and no wage increase, since Respondent wanted to negotiate wages every year. Respondent also argued that it had al- ready provided maximum wage increases allowable under Federal wage guidelines, by giving a 7-percent wage increase in December 1979. Brantley advised Re- spondent that exceptions were available under the guide- lines, but Clinton replied that it would grant no wage in- crease. During the July 19 negotiations the Union again raised the issue of a wage increase and COLA, and Re- spondent replied that it was conducting a wage survey and would consider a wage increase proposal. On July 23 Clinton sent the following letter to Brantley: During our last meeting on July 19, 1979, you re- quested that the Company consider granting a wage increase to the employees in the bargaining unit. As you were advised by the Company representatives during that meeting, the Company has considered the adjustment of wages. In view of the fact that our last adjustment for all of our production and maintenance employees oc- curred over six months ago, we have decided, in view of rising inflation which has occurred during these past six months, to grant a thirty-five (35¢) cent an hour increase across-the-board to all of these production and maintenance employees, effec- tive July 30, 1979. In the event you desire to discuss these proposed adjustments, please advise me. However, a notice to employees, advising them of the in- crease, was posted at the plant prior to, or approximately at the same time, when the above letter was written. The only reasonable conclusion is that Respondent unilateral- ly decided to, and did, give employees an increase with- out prior negotiation with the Union, and in the absence of an impasse in negotiations. There is some conflict in the testimony as to whether, on July 19, Brantley asked for a proposal, or for an immediate increase, but in view of the record of negotiations, it is clear, and found, that he sought only a proposal. Brantley's undisputed position at all times was against "piece mealing" implementation of a contract. Much testimony was devoted to negotiations concern- ing a dental plan. From March 8 until July 19, Clinton and Gibson insisted that Respondent would agree to no such plan, since it was content with its current insurance plan. On July 19 the Union was advised that corporate officials were considering a companywide plan, but Re- spondent would not agree to the Union's dental proposal. On November 2 the Company presented the Union with its dental plan, but the copy was of poor quality and was not readable. The Union was given a verbal explanation of the plan and, later, Respondent informed the Union 752 HUCK MANUFACTURING COMPANY that the plan would remain unchanged, in spite of objec- tions by the Union.2 9 3. Checkoff of union dues Brantley insisted, from the outset of negotiations, on a checkoff provision in the contract. Clinton objected to such a provision,a3 saying that the I-year period after which an employee could revoke a checkoff was too long. The Union later offered to reduce the -year period, but Respondent replied that it still did not want such a provision, because employees already were having so much taken from their checks, for the credit union, tool repayment, and charity. However, that prob- lem is not dealt with in Respondent's proposals of April II and 18. Respondent's proposal of April II, which Clinton and Gibson testified was made in order to pre- vent a strike, was not a reasonable one, since it provided for a 7-day advance notice by employees to retract their checkoff authorization and, further, the checkoff would be null and void after I year from signing the contract, or upon expiration of the contract, or when revoked by the employee. Because Respondent's proposal was so un- realistic, it is clear, and found, that it was made in bad faith, rather than to avoid a strike. Further, Clinton was not aware of a strike deadline until Brantley called him on the telephone April 22. The Union later indicated its willingness, born of frustration, to accept Respondent's proposal, but was told the offer had heen withdrawn be- cause of the strike. The inference is strong that the pro- posal was withdrawn only because the Union agreed to it. 4. Individual bargaining with employees In response to Mull's letter to Brantley, dated July 23 and quoted supra, Brantley wrote to Mull on July 25, as follows: I am in receipt of your letter dated July 23, 1979, in which you state that you are going to put into effect July 30, 1979, a thirty-five cents (35) wage in- crease to all Production and Maintenance employ- ees. As you are aware, this is a bargaining issue which we have been trying to reach a full agree- ment with you on all matters pertaining to a con- tract. It seems to me that this issue should be resolved along with other issues in dispute at the same time. The Union does not feel that this is good faith bar- gaining to piece meal part of the agreements in effect and leave the other matters in dispute. There- fore, I highly recommend that we discuss this at our next meeting which is scheduled for August 3, 1979. Meanwhile, Respondent posted the following notice to employees, dated July 24: 29 G C Exh 18 is Mull's letter to Bralltcy concerning the plan Ihe letter solicits the Union's objections, but none was made, so far a the record shows. 30 This objection is suspect. Clinton objected to an arbitration pro.i- sion because Respondent's contract ith United Automobile Workers has no such provision Yet that same contract has a proision for checkoff of union dues NOTICE Recognizing that inflation is running at or near double digits, the Company proposes to grant a 35 cent per hour across the board increase for all Hourly Rated employees effective Monday, July 30, 1979. This proposal has been forwarded in a letter dated July 23, 1979 to Mr. L. H. Brantley, Sub-Di- rector for the United Steelworkers of America at their Dallas headquarters. HUCK MANUFACTURING COMPANY Waco Division M.F. Mull, Vice President & General Manager It is clear from the record, and found, that Mull posted the foregoing notice to employees prior to receiv- ing Brantley's letter and, without any prior bargaining with Brantley, and without giving him an opportunity to object to the notice prior to its being posted. The notice seems to indicate that Brantley was given an opportunity to object to it, but it is clear that Respon- dent already had decided upon its course of action and was only notifying the Union, by the letter to Brantley, what it had decided to do. Respondent's unilateral notice to employees concern- ing a proposal that should have been a matter for bar- gaining between Respondent and the Union was individ- ual bargaining as alleged, and constituted a violation of the Act. 5. Unilateral increase-shift differential The basic facts relevant to this issue are not in dispute. On February 9 the Union presented Respondent with its first contract proposal. On March 8 Respondent present- ed its first proposal to the Union. Negotiations were con- ducted on March 9 and 26, and on April 10 and I1. During those sessions proposals of both sides were re- viewed and discussed in detail, with some minor move- ment on both sides toward agreement. On April 19 the Union received, pursuant to its request, Respondent's final proposal. On April 22 the Union's membership re- jected Respondent's final proposal, and the strike dead- line was set for May 15. The parties met on May 14, Re- spondent refused to modify its final proposal given to the Union on April 19, and the Union informed Respondent that the strike would commence on May 15 at 6 a.m. The Union repeatedly told Respondent that Respondent could not put into effect, on a "piece meal" basis, any of the open issues Respondent's final proposal contained its proposed shift differential. On May 21. the shift differen- tial proposed by Respondent was put into effect, without prior notice to the Union. Respondent contends that the parties were at impasse when the shift differential was put into effect, hence, that the implementation did not violate the Act. There is no indication that the strike was called be- cause of an impasse, or was ended because of anything that related to negotiations. The strike was called be- cause of the Union's desire to put the heat on Respon- 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent, and Brantley testified that the strike was not suc- cessful because of factors unrelated to negotiations. No progress was made during the sessions of May 22 and June 5, following the strike's end. It is apparent that the bitterness resulting from the strike at least was a factor in that lack of progress. A basic question is whether or not the parties were at impasse on May 21. As of that date, the parties had met on six occasions, but had bargained during only four of those occasions. During the four sessions there was some agreement, and a few concessions by both sides, but the principal differences remained. The subject of impasse has been considered by the Board and the courts in many cases, but conclusions in those cases are based on findings of facts peculiar to those cases. An outright refusal of one side to negotiate further on a subject or on several subjects possibly may create an impasse, at least on some items, but such a situ- ation may result in an unlawful refusal to bargain. In this case, there was no refusal to bargain. The parties met, talked, did some negotiating, made some progress, and broke up to meet again, on another day. There was no great difficulty so far as noneconomic matters were con- cerned, but economic matters, and the specific items dis- cussed in sections M 1, 2, and 3 above, gave rise to seri- ous difficulty. Both sides had hard positions, and each in- dicated to the other that it was standing pat. However, such a stance is the rule in bargaining, and not the excep- tion. Of importance is the fact that the parties continued to meet and negotiate. The number of sessions prior to May 21, when the shift differential was put into effect, is not controlling but, generally, the more meetings, the better the chance of finding an impasse.3 1 Here, only four bargaining meetings were held prior to the alleged impasse, and those were not unusually lengthy sessions. That small number is of some weight, especially in view of the fact that none of the sessions was exhaustive. Generally, the parties went through the proposals one by one, agreed where they could, and passed the others on until a later time. The record discloses no instance wherein either side threw up its hands, figuratively, and said there was a deadlock and they may as well quit trying. Brantley cre- dibly testified that he never felt the parties were at an impasse. Reviewed as a whole, the record seems to say that Re- spondent recognized an impasse when it saw one, and that, even though it did not see one on May 21, it con- tends that it did. The testimony indicates in many places that the Union wanted a contract, and invited some com- promise proposal from Respondent, but that its overtures were ignored or rebuffed. By delaying meetings, often taking immovable stands, offering compromises that were patently unacceptable, and negotiating against, rather than toward, agreement, Respondent frustrated, rather than enhanced, the concept of collective bargain- ing. However, there is more than the facts of the negotia- tion sessions. Respondent's general attitude must be taken into consideration. Nitschke testified, without challenge " Fetzer llievisioln Inc.v NV.L. R.B., 317 F 2d 420 (6th ir . 9h3) or denial by Respondent, that Ackerman told the em- ployees on December 15, just before the election: . . . "Huck has proved Huck doesn't want a union, doesn't need a union, and has proved it in the past." Q. Go ahead. A. And he also said, "Proved it in the past, that this year, we have granted a 15 per cent raise, and the cost of living didn't go up but 14.2," or some- thing like this. And, he didn't think that Huck needed a third party to solve their problems. That, if we'd give them the chance, that Huck would solve our problems. Nitschke continued: And the-also, if the union was voted in, that they would negotiate in good faith. Ackermen did not attend any of the negotiation sessions. Clearly, Respondent from the outset considered unions unnecessary and undesirable. In the midst of negotia- tions, as discussed above, just after employees returned from a lawful strike and on the same day the shift differ- ential was put into effect, Mull spoke to the strikers in a severe manner. He disparaged the Union and the strikers; reprimanded employees for striking; informed employees that nonstrikers would receive extra pay for work per- formed on May 14 by nonstrikers and strikers; threatened future strikers with discharge; and harassed strikers for striking. That kind of language is not consistent with the attitude required by the Act for bargaining. Finally, the shift differential was effectuated the same day as Mull's speech. Under such circumstances, Respondent's conten- tion that it believed the parties were at impasse on May 21, after negotiating on only four occasions, is not con- vincing. If there were a stalemate, as Respondent argues, it seems apparent that it was caused unilaterally by Re- spondent, not by mutual failure or refusal to bargain fur- ther. It is found that, as of May 21, a lawful impasse did not exist, because of Respondent's bad-faith negotia- tions,:'2 and that institution of the shift differential was a violation of Section 8(a)(5) of the Act, as alleged. 6. Individual bargaining During his speech to returning strikers on May 21, Mull stated, inter alia: As I close my talk let me say that I've learned a lot about people this week, things I knew but didn't stop to consider as fully as I perhaps should have. Your strike was a strike for Union Security, not one to improve your conditions. Mr. Brantley twice said if you people could hold out and get a union in this area, it would set a precedent. A precedent for who-you? I think not. He also said that unless you :'.2L NL. . . IHerman Sausage (ornpay, Inc. 275 F 2d 229. (5th Cir. l 0h()) it has lhng been held Ihal bargaining with a ionl. while at the same time attellmpting tin destro)y the union's ntlaJorlty and undermining its rcprcscntativc status creates an 8(a)(5) Nilatinon See Skrl DOl ( rarting. Inci, 245 NIRi 141 (79); .Alherr 1. ldfilhil. d/ha Oldficd llre Suhl,. 221 NlR.K 1275 11)75) 754 HUCK MANUFACTURING COMPANY decided to back this drive you could get along without the union-you didn't need them. You, in my opinion, and that is shared by many people, were being used by Mr. Brantley and the USW In- ternational. In regard to checkoff, we have steadfastly main- tained that we will not give the Union the kind of checkoff that is binding for one year because we be- lieve you should have the right to leave the Union any time you so choose and not be forced to pay union dues unless you thought the Union was per- forming to your satisfaction. He obviously doesn't want to discuss that issue with you or mention it to the news media because it, like the precedent that would be set in the Waco area, shows that the Union wants, D)UES. I've had my say, I'm glad it's over, you are re- turning to your old jobs. You probably feel some skepticism and will, no doubt, encounter more than a little hostility. You should expect that. Do your job, don't provoke. In view of the rest of Mull's speech, and the cir- cumstances of the bargaining and the strike, it is ap- parent that Mull made the above comments in order to disparage the Union in the eyes of employees, and to present to the employees, for their consider- ation and possible action, Respondent's position on the checkoff dispute. Such action is a violation of the Act, as alleged. The only proper forum for such remarks was the negotiation room, with the Union present. 7. Refusal to negotiate relative to arbitration The basic facts of this issue are discussed above. Re- spondent refused even to consider an arbitration clause, other than to talk about the theory of such a clause, si- multaneously while proposing that the Union grieve and, if necessary, strike on grievances and, further, proposing to limit the grievance procedure by withholding there- from grievances pertaining to new jobs and group insur- ance. Possibly insistence on a no-arbitration clause would not be a violation of the Act. However, coupling that provision with severe limitations on the right to grieve would result in a provision that would put the Union in an untenable position. The Union and the employees would face the possibility of striking over every griev- ance, or foregoing all grievances. In either event, the Union could not protect the rights of employees as it should be able to. Multiple strikes would be intolerable. Overlooking grievances could be destructive of employ- ee rights. Respondent suggested no third alternative. Further dilution of the grievance procedure, by excising two large areas therefrom, results in grievance machin- ery not greatly different from that prevailing without a contract. There is little doubt, under such circumstances, that Respondent's refusal to consider an arbitration clause was motivated by a desire to frustrate, rather than to foster, the bargaining process. Respondent's proposal was not a reasonable one, and the Union protested with an offer of its own. The Union asked Respondent for its suggestions in order to accommodate Respondent if pos- sible, but Respondent continued with its unyielding and unreasonable position. It would make no change in its proposal, knowing the proposal could stop the process of negotiation. That is not good-faith bargaining.`3 8. Refusal of information The Union requested, on various occasions in March and May, that Respondent give it information relative to the discharges of employees Fetsch, Benton, and Cle- ments. The information relative to Benton and Clements later was given to the Union. So far as the information relative to Fetsch is con- cerned, the only issue is whether or not it is legally re- quired information, since Brantley advised Respondent that Fetsch's discharge had been referred to the National Labor Relations Board as an unfair labor practice.34 At the time of the Fetsch request, the Union was the bargaining representative of Respondent's employees. but no grievance or arbitration machinery had been agreed to. Thus, the only recourse the Union had was to bargain with Respondent, or file an unfair labor practice charge. Fctsch was fired on May 21, and on May 29 the Union filed a charge with the National Labor Relations Board. It is clear that the Union chose to prosecute the matter through the Board rather than to bargain about it with Respondent. Thus, the information the Union sought was pertinent to the charge, not to bargaining. The matter thus was brought squarely under Board law,," and Re- spondent was not required to give the information to the Union. This allegation is not supported by the record. 9. Limiting term of the contract This matter was not alleged in the complaint as a vio- lation of the Act, but is considered, since it was fully liti- gated. The Union was certified on December 26, 1978, as the bargaining representative of employees in the unit described above. From the beginning of negotiations, Re- spondent insisted on limiting the term of the contract to the certification anniversary; i.e., December 26, 1979. The Union initially wanted a 3-year contract, but was not insistent upon that term, and never agreed to less than a year. Clinton testified that he wanted to use the certification date as the contract date in order to permit negotiations at approximately that time, but that argu- ment is not convincing, since it would be a simple matter to extend the contract expiration date to December 1980 or 1981. Rather than do that, Respondent held firmly to the December 26, 1979, date with the knowledge, and obvious gratification, that each unsuccessful negotiation session shortened the time Respondent would have to contend with the Union. Little that Respondent did during its negotiations exposed its motive and intent so clearly as did this matter. Respondent still was insisting :: J. P .Stc,,ez (Co.. Inr 239 NlRB 738 (178) .San I[abh Elctrrc Ser- cc. It . 225 NtRB 11)73 (1'7t ) :" Respondent Iold Ir;lntley why Fetsch as discharged. hut refused iO glC e tIh liion aly) supporting eidence :' Iniruzn dil C(ompan,. 171 N.RH 1180 (198); General Elhctric (onpu/an. Aulirl Producl. Capaci;ator Departmenn. 163 NLRB 198 1 lq67) 755 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the same contract expiration date, as of the date of the last session on November 2. If the parties had signed a contract then, its duration would have been less than 2 months. That is not good-faith bargaining; this tactic was transparent, and was aimed straight at the Union's repre- sentation status. As stated in Insulating Fabricators, Inc., Southern Division, 144 NLRB 1325, 1329-30 (1963): While the expiration of the contract, like its sub- stantive provisions, is a bargainable issue, a contract terminable at the will of a party, or a contract for less than a year to expire at the end of the certifica- tion year, is normally not one that will give full force and effect to the Board's certification. Conse- quently, the Board views insistence upon such a contract without good reason appearing therefor as evidencing a lack of good-faith bargaining. No such "good reason" for the limitation it insisted on having been established, it is found that Respondent vio- lated Section 8(a)(5) by its actions described in this issue. Post-May 21 Negotiations It is discussed and found, supra, that Respondent was negotiating in bad faith, and that the parties were not at impasse as of May 21, when the shift differential was put into effect. The record shows a continuation, after May 21, of the attitude in bargaining that Mull exhibited in his speech to the strikers. The items of arbitration, wage increases, cost-of-living allowance, and checkoff remained out- standing; Respondent refused to budge from its stance on them, except in a meaningless way, as discussed above. The Union earnestly attempted to work something out with Respondent, but had no success. It is quite clear that Respondent did not want a contract, and did not want a union in the plant. Even had Respondent finally permitted itself to be talked into some form of contract, it would have lasted only until December 26, then the entire process would have commenced again, possibly with an interim attempt at refusal to bargain. Brantley was an unusually convincing witness. He was low-key, sincere, objective, and appeared to be com- pletely honest. His testimony is given full credence, and his version of the negotiation sessions is accepted. It is apparent that Brantley was concerned with the employ- ees, and made every effort to obtain for them a satisfac- tory contract. He pushed for additional negotiation ses- sions, but got little cooperation from Respondent. The record shows no credible excuse for the sessions being dragged out the way they were. The only reasonable conclusion is that they were dragged out because Re- spondent did not want to contract with the Union. The following quotation, from Chevron Oil Company, Standard Oil Company of Texas Division, 182 NLRB 445, 447 (1970), succinctly and accurately describes the situa- tion in this case: Respondent's course of conduct in the negotiations, particularly when appraised with its other conduct, elsewhere considered, reflects that it approached the bargaining table with the attitude of an employ- er who is unreconciled to his employees' choice of union representation, who is determined not to sur- render in any material respect the full freedom he previously enjoyed to regulate his labor relations unilaterally, and who has no serious desire to reach agreement through the peaceful processes of collec- tive bargaining, except, perhaps, upon a basis which would subvert the Union's bargaining status. It is found that, at all times relevant herein, Respon- dent bargained with the Union in bad faith, as alleged in the complaint, and that, as of the last negotiation session, impasse had not been reached. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, in violation of Section 8(a)(l), (3), and (5) of the Act, it will be recom- mended that Respondent be ordered to cease and desist therefrom, and take certain affirmative action designed and found necessary to effectuate the policies of the Act. It has been found that, for work performed on May 14, 1979, Respondent paid employees who were on strike3 6 from May 15 through May 18, 1979, at rates of pay below those for nonstriking employees who also worked on May 14. It will be recommended that Re- spondent make whole all such striking employees who worked on May 14, by paying them at the same rates of pay for May 14, given to nonstriking employees who worked on May 14, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). ' 7 Having found that Respondent refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all em- ployees in the appropriate unit concerning wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement."8 In order to insure that the em- ployees in the appropriate unit will be accorded the ser- vices of their selected bargaining agent for the period provided by law, I shall recommend that the initial period of certification begin on the date Respondent commences to bargain in good faith with the Union as i These crmployees are named infra '' See. generally, IiS Plumbing & flaing Co.. 138 NLRB 716 (1962) :' It is recommended that the shift differential unilaterally changed by Respondent remaill as changed, subject to negotiation hby the parties. 756 HUCK MANUFACTURING COMPANY the recognized bargaining representative in the appropri- ate unit.3 9 Because of the pervasive and serious nature of the vio- lations of the Act found herein, a broad remedial order will be recommended. It is recommended that all allegations of the complaint that are not found herein to have been proved be dis- missed in their entirety. Upon the basis of the foregoing findings of fact, and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW I. Huck Manufacturing Company is, and at all times material herein has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at Re- spondent's Waco, Texas plant, but excluding all office and clerical employees, professional and tech- nical employees, guards, watchmen, and supervisors as defined in the Act. 4. The Union is, and at all times material herein has been, the exclusive bargaining representative of all em- ployees in the appropriate unit described above. 5. Respondent violated Section 8(a)(1) of the Act by: disparaging striking employees and the Union; repri- manding employees for engaging in a lawful strike; tell- ing employees that those who struck on May 15, 1979, would be paid less for working May 14 than employees who did not strike; threatening permanently to replace employees immediately if they engage in a strike; and harassing employees because they engaged in a lawful strike. 6. Respondent violated Section 8(a)(3) and (1) of the Act by paying employees who were on strike from May 15 through May 18, 1979, at rates of pay below those for nonstriking employees who also worked on May 14. Those employees are: Mike Adams Dennis J. Ayers Richard Benton Darlene Brinkley Robert D. Brown Artia L. Brown Billy Brown Robert Reesing Tom Ross Kenneth W. Bolden Kenneth Ruth Roy Rutkoski Ray Salazor Maximilius Santana 9 King Radio Corporation. Inc.. 172 NLRH 1051 (1968); Mar-JacA Poultry Compan. Inc., 136 NLRB 785 (1962) Marie Bolden Orville E. Chappell James L. Chism Gene Claridy Ben Cunningham Palmer Collier William R. Davis Michael Denny Mike Dominguez Vernon Drakes Norbert Fetsch Marle Gardy Billy Grobe G. T. Hendrix Dole Huricuf Rose M. Hughes Tom Hughes Wm. E. Keton, Jr. Aaron Lang George Lehrmann Greg Lglehart Lloyd W. Lowry Mike Luxfan George McFarland John P. McGaugh Michael J. McGaugh Leonard McLennan J. T. McLearaen Rusty Mashburn John Henry May James Meadows Camille Minns Tom J. Moore Jimmie Nitichla Johnny Northcutt O. C. Pierce S. L. Pimpton Luther Pimpton David L. Ramos Jim D. Reed, Jr. Rick McGaugh Larry H. Sligel Michael J. Smith Rubbie Sterling Morris L. Stewart Jack Stone Jr., (W.D.) Kin Sydow D. L. Thompson Frances F. Venable Ronnie Walker Johnnie Mae Walker C. W. Wendt, Jr. Jerry Wilson III Robert L. Wright Ralph T. Andre Edwards Jimmy Thompson Bernice Danford James Hollingsworth Nino Santane Charlie Hughes Bob Barnes Linda Brewington Frankie Ingram Mike Jones Jack Reed Mark Tardy Tom Askin Mike Saxton Gary Culverhouse Dale Herring David Marshall Tony Riojas Tommy Wilhite Jerald Russel Jimmy Dickson Roy Clemons Gerry Bush J. E. Hanks Victor Martin Donald Campbell Lonnie Walker 7. Respondent violated Section 8(a)(5) and (1) of the Act by: failing and refusing to bargain with the Union in good faith; bargaining directly with employees on mat- ters subject to collective bargaining; unilaterally imple- menting portions of its previous offers made during ne- gotiations with the Union, in the absence of impasse in negotiations; failing and refusing to negotiate with the Union on the subject of arbitration; and insisting that any contract with the Union be for a term of less than I year. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 757