Church Point Wholesale Grocery Co., Inc.

500 CHURCH POINT WHOLESALE GROCERY CO. Church Point Wholesale Grocery Company , Inc. and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 15-CA-4997 December 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On March 29, 1974, Administrative Law Judge Eu- gene F. Frey issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations. Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.' While we agree with the Administrative Law Judge's determination of the facts surrounding the LeJeune- Guidry "gun incident" on August 24,2 we do not agree with his conclusion that the Respondent's in- volvement in this matter resulted in the commission of unfair labor practices under the Act. The facts are as follows. The Union went on strike from August 20 through August 29. On August 24, at approximately 6 p.m., salesman Carl Guidry, a non- supervisory employee, and General Manager Richard Horecky returned to the liquor warehouse in a truck after making deliveries to customers. When leaving and returning to the plant, they crossed the picket line. Both Guidry and Horecky got into their cars to drive out of the plant. Guidry left first and, as he left the plant, striker Cary LeJeune followed Guidry. Horecky saw LeJeune start up his car, which was parked outside the plant's property, and followed Guidry. Horecky caught up with LeJeune at a traffic light a few blocks away. Guidry continued driving towards home making several turns along the way and LeJeune followed him. When Guidry turned into the street where he lives, he deliberately pulled to the side of the road. LeJeune pulled over to the side of the road momentarily and then swerved past Guidry's car. Meanwhile Horecky continued to track LeJeune. Thereafter Horecky drove down to Guidry's home and picked him up. They drove I The Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and the posi- tions of the parties. 2 All dates hereinafter are in 1973, unless otherwise noted. a few blocks away to a vantage point from which they could observe Guidry's house. Shortly, LeJeune drove into Guidry's driveway, turned around, and started back up the street. As he did so, Horecky pulled up and blocked LeJeune's car with his. Both Guidry and Ho- reeky approached LeJeune's car and Guidry asked Le- Jeune what he was doing driving into a driveway on a dead-end street. Both Guidry and Horecky shouted some bitter remarks toward LeJeune and a brief en- counter followed. The upshot of the matter is that Guidry told LeJeune not to "mess around [his] house with [his] family or anything" and, if he caught Le- Jeune in the neighborhood again, he would blow his head off. At the same time, Guidry pulled out a gun and waved it toward LeJeune. Horecky also remarked that he (LeJeune) was "finished" in reply to a state- ment by LeJeune that he was going back to work that night. The Administrative Law Judge first found that Guidry was engaging in nothing more than the type of rough free speech which has long been associated with strike activity and which we have condoned as "animal exuberance" when coming from striking employees. He then made the further findings that the pulling of the gun by Guidry and the remark by Horecky that Le- Jeune was "finished" constituted conduct proscribed by the Act for reasons stated supra. We disagree with these findings as the facts fail to establish that the conduct directed toward LeJeune by Horecky and Guidry came as a result of his engaging in any form of concerted activity. Contrary to the find- ing by the Administrative Law Judge that at the time of the alleged proscribed conduct LeJeune was engaged in concerted activity, we note that the entire course of events was prompted by LeJeune's tracking of Guidry. While LeJeune testified that he was, at the time of the incident, driving to the grocery warehouse to check on the pickets there, the Administrative Law Judge dis- credited him on that point and stated that he (LeJeune) "was deliberately and closely following Guidry to see where he was going or for a possible more sinister reason." Of importance also is the fact that although Guidry was alleged in the complaint to be an agent of Respondent, this was denied and the record evidence fails to show that he was acting at all times relevant in any position of authority other than as a salesman. Moreover, the record is barren of any evidence which would lead one to reasonably conclude that Horecky could foresee that Guidry would pull a gun on LeJeune even assuming that this conduct had occurred during a time while he was engaged in concerted activity. Fi- nally, the remark by Horecky appeared to have oc- curred during a moment of anger and was not based on any preconceived or other unlawful motive. Further- more, there is no evidence to show that the Respondent treated LeJeune any differently than any other striking 215 NLRB No. 93 CHURCH POINT WHOLESALE GROCERY CO 501 employee following the alleged threat. Accordingly, we do not adopt the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) of the Act by salesman Guidry's remarks and actions directed to- ward LeJeune set forth above or by Horecky's remark to LeJeune that he was "finished" and need not try to return to work.3 We also do not agree with his conclusion that Re- spondent engaged in overall bad-faith bargaining in violation of Section 8(a)(5) and (1) of the Act by taking an adamant position during the negotiations on the subjects of union security, seniority, and checkoff.' In reaching his conclusions in this regard, the Administra- tive Law Judge places much reliance on the following factors: (1) Respondent's failure to emphasize during negotiations that its adamancy on union security and checkoff was based, in part, on its strong concern for the protection of employee rights under the Act, which supports the inference that its stated concern about coercion was just a pretext to mask its unlawful bar- gaining tactics on union security and checkoff, and (2) the Union's pronounced flexibility on those subjects and seniority.' Finally the, Administrative Law Judge took note of the fact that Respondent resisted the entry of the Federal Mediation and Conciliation Services into the negotiations to assist the parties in reaching an agreement. In the Administrative Law Judge's opinion, after the Union displayed a disposition to be flexible on the aforementioned unresolved issues, it became in- cumbent upon Respondent to suggest alternative ,proposals to the Union as evidence of its good faith if it was sincere in its desire to resolve these issues and reach a final agreement. By failing to do so, and given the totality of Respondent's other unlawful conduct which is discussed in detail in the attached Decision, the Administrative Law Judge concluded that Re- spondent failed to meet its obligation to bargain in good faith in violation of Section 8(a)(5) of the Act. As noted by the Administrative Law Judge, the pro- gress the parties made toward agreement in three nego- 3 Although we have found LeJeune's conduct to be unprotected, we do not consider it to be of sufficient gravity to bar his reinstatement Accord- ingly, we find in agreement with the Administrative Law Judge that LeJeune is entitled to reinstatement rights in the same manner as are the other strikers who participated in the economic strike ° Chairman Miller, contrary to his colleagues, would not find an 8(a)(1) violation based on Respondent's alleged statements to the effect that it would close the plant rather than agree to certain proposed union-security and/or checkoff provisions in the collective agreement The Chairman is of the view that, while both parties are required to approach the bargaining table with an "open mind," it is not a violation of the Act ultimately for a party to steadfastly refuse to accede to the other's demand on a particular issue In his view, the Respondent here would have been within its rights to close its facility rather than to accept an agreement unsatisfactory to it in this one particular respect , and thus it had a right to so express itself to the employees Employees, in the Chairman's view, need not be kept in the dark as to those bargaining issues on which a party has a "no give" position 5 The subject of seniority was not vigorously urged by the Union as a condition precedent for reaching a final agreement tiating sessions between July 12 and 26 affords impres- sive proof that Respondent was negotiating in good faith with the idea of reaching an agreement as soon as possible, avoiding costly and lengthy drawn out negotiations. To achieve this, Respondent made a sub- stantial offer on financial items at the first session which the Union warily accepted without prejudice to later negotiations on financial issues. On other items, both financial and nonfinancial, the parties by the end of the third negotiating session had gone through almost 40 union proposals as well as 20 company clauses and at least three oral counteroffers. After concessions on position or wording mostly by Respondent, they had agreed on about 21 items or clauses offered by Respondent, while the Union had dropped 8 or 9 of its proposals. At the end of the July 26 session, they were apparently deadlocked on union security, checkoff, seniority, some aspects of vacation pay and of overtime pay, and some aspects of grievance procedure and arbitration. The parties held two other negotiating meetings, the last of which occurred on September 10. At the conclusion of this meeting the only issues outstanding were union security, seniority, and checkoff. Respondent's opposition to the Union's proposals on these issues is as follows: It opposed union security on the basis of "principle" stating that it would not agree to anything which might force employees to join the Union. On checkoff, Respondent presented -arguments based partly on the Union's duty to repre- sent the employees and hence to collect its own fees for services rendered and handle its own bookkeeping and partly upon the unfairness of saddling Respondent with this duty, saying that the employer should not be re- quired to act as the Union's collection agency. On seni- ority, Respondent took the position that the most quali- fied applicant should fill any vacancy whether it be a newly created position or one brought about by attri- tion. The Union proposed that the most senior em- ployee be given the first opportunity to fill vacant or newly created jobs. With respect to the allegation that the Respondent had a closed mind and fixed intent on the deadlocked issues, it is true and Respondent's action during the negotiations would appear to support the conclusion that it went into negotiations with certain aims and goals and remained attached to that position through- out the negotiations. The basic question here can be simply stated but it is not susceptible of a short and simple answer: Did the Respondent negotiate with the Union in bad faith and with the intention of avoiding reaching agreement or conditioning agreement upon the Union's acceptance of terms and conditions which the Respondent knew or should have known were unacceptable to any self- respecting union? 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The governing principles need not be set forth in exhaustive detail.•Section 8(d) of the Act defines collec- tive-bargaining as "the performance of the mutual obli- gation of the employer and the representatives of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotia- tion of an agreement, or any question arising the- reunder . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession . . . ." The yardstick laid down by Sec- tion 8(d) for the measurement of "good faith" is not rigid but, necessarily, is an elastic concept having meaning "only in its application to the particular facts of a particular case." N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 410 (1952). As the Court of Appeals for the Second Circuit stated in N. L. R. B. v. National Shoes, Inc., and National Syracuse Corpora- tion, 208 F.2d 688, 691-692 (1953), the problem "is essentially to determine from the record the intention or the state of mind of [the Employer] in the matter of [his] negotiations with the union. In this proceeding, as in many others, such a determination is a question of fact to be determined from the whole record. -6 More- over, as the Supreme Court stated in American Na- tional Insurance, supra, 404, it is "apparent from the statute itself that the . . . Board may not, either di- rectly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of a collective- bargaining agreement." A necessary corollary to this principle is that just as the Act "contains no authority to force an agreement where the parties have reached an impasse" (N.L.R.B. v. United Clay Mines Corpora- tion, 219 F.2d 120, 126 (C.A. 6, 1955)), so also refusal to bargain cannot be equated with "refusal to recede from an announced position" advanced and main- tained in good faith. Division 1142, Amalgamated As- sociation of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO [Continental Bus System] v. N.L.R.B., 294 F. 2d 264, 266 (C.A.D.C., 1961). Applying these principles to the facts here, espe- cially in view of the substantial movement and reces- sions by Respondent, we are persuaded that the Re- spondent here has fulfilled its obligation under Section 8(a)(5) and 8(d) and that it, in fact, bargained in good faith with the Union. As we have not adopted the Administrative Law Judge's finding that Respondent violated Section 8(a)(5) of the Act in any manner, we shall dismiss this allegation of the complaint. Also, in view of this find- ing, we also reverse the Administrative Law Judge's finding that the strike was an unfair labor practice strike since his finding rested on the conclusion that the 6 See also NL.R B v Reed & Prince Manufacturing Company, 205 F 2d 131, 134-135 (C A 1, 1953), cert denied 346 U S 887 (1954) strike was precipitated by, Respondent's conduct at the bargaining table which in his opinion created an im- passe violative of Section 8(a)(5). Consequently, we also do not adopt his finding that Respondent violated Section 8(a)(3) and (1) by its refusal to reinstate those employees who participated in the strike which we find to be economic in nature. The Administrative Law Judge also finds evidence that Respondent made coercive threats violating Sec- tion 8(a)(1) of the Act by stating to its employees that the Union practiced favoritism inasmuch as it allegedly paid and favored two union committeemen. We do not agree. The facts surrounding this allegation are sum- marized as follows: On the evening of August 21, P. Roy Horecky told a group of strikers that he felt sorry for them, that "these 2 guys (Union Committeemen Faul and Higginbotham), are making all the money while you are out here not collecting a damn thing," that the Union was paying the two committeemen to be out on strike. Faul denied that union committeemen were in fact paid by the Union during the strike and this testimony was credited by the Administrative Law Judge. However, even accepting Horeck's statement as a misrepresentation, we cannot construe it as a threat to employees' employment relationship. Nor was it so received by the employees. Accordingly, we find Ho- recky's statement to be noncoercive and hence not a violation of Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW Substitute the following Conclusions of Law for the Administrative Law Judge's Conclusions of Law 2 through 5. "2. The Respondent has not engaged in any acts constituting unfair labor practices within the meaning of Section 8(a)(3) and (5) of the Act. "3. By advising employees during negotiations with the Union and during a strike that Respondent would never grant any form of union security to their Union, but would sell or close up the business before doing so, advising them that they lost present benefits by strik- ing, Respondent engaged in unfair labor practices af- fecting commerce in violation of Section 8(a)(1) and 2(6) and (7) of the Act. "4. The strike which began on August 21, 1973, was from its inception an economic strike. "5. All alleged violations of the complaint not found herein are dismissed." THE AMENDED REMEDY Having found that Respondent engaged in certain unfair labor practices, we shall require that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The un- CHURCH POINT WHOLESALE GROCERY CO 503 fair labor practices found'include a variety 'of threats' of discharge, 'deprivation' of benefits, and other reprisals for union activity, conduct calculated to impress upon employees the futility of choosing the Union as bar- gaining representative, all of which strikes at the funda- mental purposes and objectives of the Act. Accord- ingly, we conclude that a broad order is warranted. ORDER in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Church Point Wholesale Grocery Company, Inc., Church Point, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Advising employees during negotiations with Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any strike of employees during such negotiations that Respondent will never grant any form of union security to said Union but will sell or close up its business before doing so, and telling them that the employees have lost present benefits by striking. (b) Questioning employees about their union senti- ments and activities; telling them they would get more benefits directly from Respondent than through the above-named Union; telling them that Respondent would never have a union in its plant, that if said Union were voted in Respondent would never grant em- ployees any form of union security; warning employees to leave the Union alone, else it would get them in trouble, or warning them that they would lose their jobs or benefits if they went on strike for the Union or assisted it otherwise; encouraging employees and their relatives to induce employees to vote against the Union; advising employees that it would sell its plants if the Union came into the plant; or warning them that they would suffer reprisals if they voted for the Union. (c) In any other manner coercing, threatening, and interfering with employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Post at its grocery and liquor warehouse in Church Point, Louisiana, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by it immediately upon reciept thereof, and be maintained by it for 60 consecutive days thereafter, 7 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we vi- olated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT advise our employees during negotiations with Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any strike of employees during such negotiations that Respondent will never grant any form of union security to said Union but will sell or close up its business before doing so, or tell them that our employees have lost present benefits by striking. WE WILL NOT question our employees about their union sentiments and activities; or tell them they would get more benefits directly from Respondent than through the above-named Union; or that we will never have a union in our plants, or that if said Union were voted in, we will never grant em- ployees any form of union security; or warn em- ployees to leave the Union alone, else it would get them in trouble, or warn them that we would buy off the Union if they voted it in, or warn them that they would lose their jobs or benefits if they went on strike for the Union or assisted it otherwise; or encourage employees and their relatives to induce employees to vote against the Union; or advise employees that we would sell our plants if the Union came into our plants; or warn them that they would suffer reprisals if they voted for the Union. WE WILL NOT in any other manner coerce, re- strain, or interfere with employees in the exercise of rights guaranteed to them by Section 7 of the Act. CHURCH POINT WHOLESALE GROCERY COMPANY, INC. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE EUGENE F. FREY, Administrative Law Judge: This case was tried before me on due notice on January 15, 16, and 17, 1974, at Opelousas, Louisiana, with General Counsel and Respond- ent, Church Point Wholesale Grocery Company, Inc., repre- sented by counsel, and the above-named Union by a business representative, after pretrial proceedings in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues in the case are whether or not Respondent (1) in course of an organizing campaign by the Union coerced employees by interrogation as to their union sympathies, persuasion of employees and their relatives to cause employees to vote against the Union in an election, threats of discharge, loss of benefits, sale of its business and plant closure, and other reprisals, if employees voted for the Union or struck in its behalf, and other conduct in violation of Section 8(a)(1) of the Act; (2) discharged strik- ing employees and refused to reinstate them because they assisted in the Union, in violation of Section 8(a)(3) of the Act; and (3) by the above and other conduct failed and refused to bargain in good faith with the Union as the certi- fied bargaining agent of its employees, in violation of Section 8(a)(5) of the Act.' At close of the testimony all parties waived oral argument, but written briefs filed by General Counsel and Respondent have been carefully considered by me in preparation of the Decision which was signed and released by me on March 26, 1974, for distribution to the parties in the usual course. Upon the entire record in the case, observation of witnesses on the stand, and consideration to arguments of counsel, I make the following: FINDINGS OF FACT I RESPONDENT'S BUSINESS AND THE STATUS OF THE UNION Respondent is a Louisiana corporation engaged in the busi- ness of the wholesale sale and distribution of liquor and gro- ceries from its Church Point, Louisiana, liquor and grocery warehouses, the only locations involved in this case. In the past 12 months before issuance of the complaint, Respondent in course of said business has had direct inflow of goods and materials valued in excess of $50,000. Respondent admits, and I find, that it is and at all material times herein has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act i These issues arise on a complaint issued November 20, 1973, by the Board 's Regional Director for Region 15, as amended at the trial, after Board investigation of a charge filed by the Union on September 12, 1973, and answer of Respondent admitting jurisdiction but denying the commis- sion of unfair labor practices II THE ALLEGED UNFAIR LABOR PRACTICES A The Union's Campaign The Union began to organize the warehouses in February, when employees J. Milton Faul and Paul Higginbotham re- ceived union authorization cards from a union agent and distributed them for signature by employees. After they re- turned signed cards to the Union late in February, it filed its petition in Case 15-RC-5104 on March 1.2 After a Board- conducted election on May 2, the Union was certified by the Board on May 10 as the statutory bargaining agent of a unit consisting of all production and maintenance employees of Respondent at its Church Point warehouses, including ship- ping clerks, warehousemen, helpers, truckdrivers, mechanics, bottling department employees, maids, bottling and shipping supervisors, excluding all office clerical employees, salesmen, professional employees, guards, assistant grocery manager, and supervisors as defined in the Act I find, as did the Board in the representation case, that said unit is an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act, and the Union has been since May 2, 1973, the exclusive bargaining representative of employees in said unit within the meaning of Section 9(a) of the Act About May 14, L Q Black, an agent of the Union, had a meeting with employees at which a negotiation committee of three employees were chosen,3 and the employees stated their initial contract demands for submission to Respondent, including seniority, union shop, checkoff or union dues, a grievance procedure with arbitration, holidays, wage raises, and paid vacations, Black and the committee began work on a set of contract proposals including these items. At the same time the Union normally asked Respondent to furnish it with certain job data on each employee and the costs of group pension and insurance programs maintained by Respondent, for examination in preparation for bargaining. After Re- spondent furnished this data late in May, the Union prepared and the employees approved final contract demands. On re- quest by the Union, Respondent suggested three meeting dates in July, and the parties agreed to meet on July 12 At Respondent's request, the Union sent its contract proposal to Respondent for examination prior to the meeting. B Respondent's Reaction to the Union's Campaign General Counsel's main thesis is that Respondent deliber- ately engaged in bad-faith "surface" bargaining in violation of the Act by going through all the motions of appearent earnest negotiations, but without intent at any time to reach final agreement with the Union on the mandatory bargaining subjects of union security, checkoff, and seniority, and that this intent was manifest from the outset of the union cam- paign by certain unfair labor practices of Respondent during the campaign and the later negotiations It is well settled that, in appraising the Employer's motive in the course of bargain- ing, all surrounding circumstances including the totality of its prior and current conduct as well as other unfair labor prac- tices, must be considered.' 2 All dates stated herein are in 1973, unless otherwise noted 3 Paul Higginbotham, Milton Faul , and Edward J Semmett 4 United Steelworkers of America (Roanoke Iron & Bridge Workers (Continued) CHURCH POINT WHOLESALE GROCERY CO 505 Respondent's management, hierarchy involved in the events discussed below consisted of P. Roy Horecky, presi- dent and general manager (liquor division), his brother, Con- rad Horecky, president and manager (grocery division), Richard Horecky, a relative of the two presidents and general manager of the operation, Jorge Villar, liquor sales manager, and Robert Voitier, Jr., son-in-law of P. Roy Horecky and a supervisor 1. Conduct of Villar On March 2, the day after the Union filed its petition in the representation case, P. Roy Horecky called a meeting of all workers at which he gave them a 20-cent-an-hour raise across-the-board. His remarks when announcing the raise do not appear in the record, but I find from credible and uncon- tradicted testimony of Committeeman Faul that once early in April Sales Manager Villar asked Faul if the 20-cent raise had changed the workers' minds about the Union. He also said that, if they voted the Union in, they would get much less through it than by dealing directly with Horecky. This inter- rogation and remark by Villar clearly indicated to Faul, head shipping clerk and an influential union member, that the raise had been given to influence the workers against the Union and impress them with the idea that they could get more directly from the Horeckys than through a union, thus show- ing the futility of union affiliation. I find that Villar's remarks were coercively in violation of Section 8(a)(1) of the Act, and also indicated that Respondent was hostile to union organiza- tion of its plants. I must also infer that Respondent has the same hostile intent when it 'made the sudden grant of the plantwide raise the day after the Union openly filed its peti- tion for the election, particularly since the record also shows that, when a group of 25-30 younger warehouse employees and drivers early in February secured an audience with P. Roy Horecky with the assistance of Faul to state their dis- satisfaction with their wages, Horecky had told them he could not give a raise then since business was not good.5 About mid-March Villar had a talk with Faul in his office in which he said that, while he was not supposed to talk to workers about the Union because he was a supervisor and agent of Respondent, he felt he had to express his feelings. He referred to the family business run by his father in Cuba, where he had dealt with a union which had been voted into the plant He predicted that, if that happened here, strict job classifications for all workers would be set up, so that drivers could not assist the helpers in the warehouse, and this would be a hardship on the workers. Late in April, about 2 weeks before the election, Committeemen Faul and Higginbotham and worker Jimmy Brasseaux came to Villar and asked for details about his father's experience with a union in Cuba, and Villar repeated what he had said to Faul in March, adding that P. Roy Horecky would never agree to have a union in the plant.' I find nothing coercive in Villar's pre- diction of some probable consequences of union organization of the plant, based on his knowledge of similar experiences in the family business in Cuba, but Villar's remark that manage- ment would never accept a union in the plant was violative of Section 8(a)(1) because it indicated the futility of em- ployees' adherence to the Union in the face of Respondent's adamant hostility to a union in the plant. 2. Conduct of P Roy Horecky On an unidentified date in mid-March, P Roy Horecky came into the shipping office at the liquor warehouse and asked Faul if the workers were "talking union" on the job. Faul replied that he did not overhear them taking about it. Horecky suggested Faul should tell them to "leave it alone," saying "it is not good for them and will get them in trouble." In a second talk on a Friday late in April Horecky ap- proached Faul and asked if he knew driver Vincent Duhon's brother Faul said he did Horecky then suggested he tell the brother to talk to Vincent and convince him to leave the Union alone and to vote against it. He also suggested that, if Faul knew any other workers he could talk to, he should tell them the same thing. Faul said he would. Horecky then said he thought he knew who the "instigators" of the Union were, they were the younger workers. He said "I can tell you one thing, they will never stay here long enough to draw their retirement." Faul replied that he did not think he could influence the younger men, as they had minds of their own. On a date in mid-April, Horecky called Faul into his office for a third talk and asked if the workers were still "talking union" on the job. Faul replied he did not hear it on the fob. Horecky then said he had dealt with a union 20 years ago, that "I bought off that s-o-b for the price of a sack of potatoes, and I will do the same with this Union, but it might cost me a little more." He also said he would "not give a damn thing" to the Union. He further said that if the workers voted the Union in and went on strike, "you can tell them when they walk through that door, they can just keep on going, they will be replaced and will not have any more jobs." He added that if Faul "decided to go with them, you can bring me your keys and go along with them." He finished by saying "You better tell them to just leave the Union alone, it will just get them in trouble." On Sunday evening, April 30, Faul and Higginbotham sought out Horecky in his office, and related to him rumors from workers that Horecky intended to fire both because of their union activity. Horecky replied that he would not fire anyone for that, because he did that 20 years ago and had to rehire the workers he fired. He then commented "I am a little surprised to find you guys involved with the Union." Both denied that they were. Horecky disagreed, saying "I know for sure, one of the men told me on the phone that you [Faul] pressured him into going to a union meeting." Faul denied that. Horecky then said "I am not going to give a damn thing to the Union, if I give you guys something, I will give it to you, it will not be through the Union " He also told them he Inc), 160 NLRB 175 (1966), enfd 390172d 846, 849-852 (CAD C, 1967), cert denied 391 US 904 (1968), The Dow Chemical Company, 186 NLRB 372, 384 (1970) 5 The February incident is found from credible and uncontradicted tes- timony of Cary LeJeune and J Rodney Doucet The March 2 pay raise is not charged as a violation of the Act 6 The above conversations are based on the credited testimony of Faul, which is admitted in part to Villar I do not credit Villar's vague and unim- pressive denials of portions of the talks, because his demeanor and other testimony indicated he was a young man of Cuban birth who was very prone to talk to other workers and was very voluble on union matters 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could sell the business, put the money out at interest, and make more money than by operating the business . Higginbo- tham commented that he knew who wanted to buy off the business. Horecky argued that the business was being run mainly to give people jobs, that "you are not working for me, I am working for you." He then told both men they had been working in the plant a number of years and had a lot of influence with the workers, and directed them to go out and tell the workers to vote against the Union and to "leave it alone, it is not good for them." Both men said they would do this the next day. The following day, after telling workers what Horecky had directed him to say, Faul sought out Horecky and said he had done as Horecky ordered, by telling every employee under him to vote against the Union. Horecky, replied "That is good." On a Wednesday in mid-April, Horecky asked Shipping Clerk Jimmy Brasseaux in the liquor shipping department what he thought about the Union . Brasseaux said he did not know. Horecky then told him, the best thing was "just leave it alone, it is no good " In March, when employees Erlene Bellard and John Bras- seaux went to the home of Horecky, their landlord, to pay monthly rent, he mentioned the union campaign , asked them not to get involved in it, and told Mrs Bellard to ask her son-in-law, employee Jerry Arceneaux, not to get involved in it In May Horecky made the same request to Bellard at her work.' I find that Respondent violated Section 8(a)(1) of the Act through the following conduct of Horecky. (a) The interrogation of Faul and Brasseaux about work- efs' union activities and sentiments. (b) Oral warnings to Faul to leave the Union alone and vote against it, because it was not good for him and would get him in trouble, and oral instructions of Faul, Higginbotham, Bel- lard, Jimmy Brasseaux, and other employees to pass on the same advice to other workers, directly and through relatives. Though phrased as suggestions , these remarks of the presi- dent of Respondent were sure to be treated by the workers he spoke to as oral instructions or orders. (c) The threat to Faul to buy off the Union as he had done in the past, if it came into the plant , and threats to Faul and Higginbotham that Respondent would not give workers any- thing through the Union but only directly. Such remarks coercively indicated to employees the futility of choosing the Union as their bargaining agent. (d) The threats of Faul and Higginbotham that, if the Union was voted in, Horecky could sell the business and make more money by investing the proceeds, and that, if they and other workers went on strike for the Union, they would be replaced and never taken back.' 7 I find the above conversations from credited testimony of Faul, James Brasseaux, and Bellard I do not credit partial denials by P Roy Horecky for, while he denies generally any interrogation of or suggestions to workers about the Union, he admits he would advise them to "leave the Union alone" if they came in and asked him for advice, but he cannot recall any specific workers involved in such discussions However , he admits that "in a general way of talking" he may have asked workers to speak to relatives and per- suade them to vote against the Union, as in the case of Bellard and Bras- seaux He also admits he probably told workers before the election that he would never give anything to the Union 8 Riviera Manor Nursing Home, Inc, 186 NLRB 806, 813, 822 (1970) The coercion inherent in the threat to "buy off the Union is not lessened 3. Other preelection conduct I find from uncontradicted testimony of employee Edward J. Sennett that, on an unidentified date before the election, Foreman Gabriel Bourgeois asked Sennett what he thought of the Union. Sennett replied he had worked at the plant some years and knew nothing about a union . Bourgeois com- mented that some driver had told him that in a small town like Church Point a union would not be any good. I find from uncontradicted testimony of employee Theresa Malbrough that about a week before the election Conrad Horecky asked Malbrough in his office if she intended to vote for the Union . She said she would not. He then said she should not vote for it, that, if she did, she would "suffer the consequences." About a week later, after the election, Conrad Horecky told her not to get "those union books"; she already had a membership card, but she took his reference to "books" to mean a union card. I conclude Respondent further violated Section 8(a)(1) of the Act by Horecky's and Bourgeois ' interrogation of em- ployees about their union sentiments and voting intentions, and Horecky's threat that, if Malbrough voted for the Union, she would suffer reprisal in the form of some unnamed "consequences." C The Negotiations At all meetings detailed below, the Union was represented by Black and the negotiating committee of three employees noted above, but Black was the sole spokesman and negotia- tor for the Union. Respondent was represented by its counsel, Lawrence J. Molony, with one or more of P. Roy Horecky, Conrad Horecky, and Richard Horecky present at all ses- sions to assist him, but Molony was the principal speaker and negotiator for Respondent, with P Roy Horecky making remarks on a few occasions as noted hereafter. 1. The July 12 meeting The first meeting was largely an exploratory session, as the parties spent most of 2 hours going over the union proposal of 32 items, with 8-10 auxiliary clauses, item by item, with Respondent seeking clarification from the Union on its posi- tion and the importance of some items, and offering com- ments on others. There was no progressive negotiation or agreement on any subjects except certain significant financial items. In this area, Respondent offered at the very outset of the meeting a substantial offer of a 20-cent -an-hour raise in wages, 6 paid holidays per year (where it had never given paid holidays before), with a basic 1 week of paid vacation, and 5 paid sick days per year, with a formula for accumulation of sick leave unused, all of these benefits to be effective July 22. After some discussion, with questions by the Union and pri- by Horecky's explanation that he said this in the context of alleged remarks to both Faul and Higginbotham on another date that he considered they were telling him a falsehood giving him some "b- s-," when they said they were antiunion, hence he had the right to give them some comparable "b- s-" in the form of a false bribe story While he says he knew they were lying, because he knew they were union organizers, his explanation of the bribe story is rather vague and he does not clearly state that he made it clear to them that his story was as false as theirs CHURCH POINT WHOLESALE GROCERY CO 507 ' vate caucus of its representatives, the Union accepted this offer upon the agreement of Respondent that its acceptance would not preclude the Union from further bargaining wages It only requested further details on the "ground rules" on sick leave accumulation. In making its comments on other items , Respondent made it clear that it strongly opposed the union proposals for union shop, checkoff of dues, and strict seniority, on the following grounds: It opposed the union shop as a matter of principle, taking the stand that it would under no circumstances force workers to join the Union, particularly old employees with 20-30 years of service with Respondent. It rejected checkoff on the ground that the mechanics of it was a matter of book- keeping hardship and inconvenience , and that it was not required to act as a collection agency for the Union or do its bookkeeping for it. It opposed strict seniority on the ground that this would largely eliminate the right of Respondent to run its own business and make promotions or transfers of personnel on merit for efficiency reasons, and argued that all such personnel changes should be on merit alone, the present plant practice. The Union did not comment or make any argument on these reasons at this meeting. At the end the parties quickly agreed on July 20 for the next meeting, with Respondent promising to put its counterproposal on the Union's clauses in writing and send it to the Union before the 20th Respondent actually mailed it to the Union on July 17 2. The July 20 meeting At the outset there was some discussion of the Company's economic offer on the 12th, and reaffirmation of the agree- ment that the Union 's acceptance of the offer and its effective date did not preclude further bargaining on it. At the Union's request, P. Roy Horecky gave the Union some further details on the procedure for certification of paid sick leave under the company plan: The Union then reduced its holiday demand from 9 to 8 paid holidays. Respondent did not comment on this. , The parties then examined and discussed the entire com- pany counterproposals of 20 items in detail After negotiation on most of them , agreement was reached, wholly or partially, on 8 or 10 clauses, usually after Respondent modified their terms to meet union objections . The Union accepted Respon- dent's existing group disability and survivors insurance plans. After extended negotiations , the parties were still apart on aspects of the grievance procedure, some management rights, including certain working rules and penalties for violation, extent of overtime hours and pay and whether it should be mandatory or voluntary, formula for payment of bonuses, and amount of paid vacations. There was extended discussion about the union shop The Union argued it should have that provision , since it must act for all workers in the unit, hence it was only fair all should pay dues for that service. Respondent stood fast on the propo- sition that it would not force any worker to sign up with the Union . P. Roy Horecky explained his opposition by arguing that the union demand was the same as if the employees were to tell Horecky at any time that he would have to change from Catholic to the Baptist faith , or vice versa. No agreement was reached on this issue. On the checkoff, the Union argued that (1) the company refusal to handle it was a hardship on the workers who might have to collect dues as well as those who paid , for workers did not usually carry cash with them , and (2) since Respond- ent regularly deducted moneys from paychecks for breakage, insurance premiums , purchase of products, loan payments, and various tax and other governmental charges, it was no hardship on Respondent to add the checkoff of dues. Re- spondent replied that it would not act as a collection agency for the Union , which should collect its own debts just as Respondent had to collect its own accounts. The Union coun- tered with the argument that in modern industrial life most labor contracts contained the checkoff, hence Respondent should reconsider its position . Respondent replied that the Horeckys were not required by law to make a concession and agree to a checkoff There was no agreement on it. The parties agreed on July 26 for the next meeting. 3. The July 26 meeting At the outset Respondent offered written amendments to its original counterproposal designed to meet objections raised by the Union at the July 20 session, and after discus- sion , with some further changes by Respondent in wording, the parties reached agreement, resolving disputes on clauses involving recognition of the Union, strikes and lockouts, most "miscellaneous provisions," temporary transfers , leaves of absence, and handling of injuries on the job. On monetary provisions, they agreed on the qualifications for holiday pay, after Respondent made some concessions After a private caucus, the Union agreed to drop seven of its original clauses.' However, the parties did not reach agreement on vacation pay, where the Union submitted a revised and some- what reduced demand, on certain miscellaneous provisions dealing with company establishment of work rules and its right to give summary discipline for violations , and also a new clause proposed by Respondent allowing summary discharge of workers for threats to other workers violating their rights under Section 7 of the Act. After its concessions on seven or more clauses cited above, the Union argued that in return Respondent should change its position on the issues of union security , checkoff, seniority, grievances, and arbitration. On grievance procedure, the Union wanted all grievances handled on company time, but Respondent argued this might cause the filing of more griev- ances than otherwise , causing much waste of worktime. The Union disagreed, and no agreement was reached. On union security, Respondent maintained the, same stand against it as in prior meetings, the Union maintained its prior arguments, and there was no agreement . The Union acknowledged that this issue was a "hell of a problem." On checkoff, the parties repeated the arguments of the prior meeting . When Black pressed the argument that he knew of no local industrial union contracts without a check- off, Molony countered that there were some, indicating Black knew them well.10 They did not, agree on this. 9 Subcontracts, Excluded Workers, Hours of Work (except the demand for overtime after 8 and also after 40 hours of work ), Shift Differential, Jury Duty , Military Leave, and several other minor demands , on which there had been little or no discussion, t 10 Black admitted in testimony that he knew of two Shell Oil refinery (Continued) • 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the seniority issue, Respondent argued that ability of the worker should be a controlling factor on promotions, while the Union still insisted on strict seniority, even after Molony pointed out that under the union proposal one com- mitteeman, a younger employee, who was in the room, would not presently hold one of the top-paid jobs in that plant. Although Black knew Molony was referring to Head Ship- ping Clerk Milton Faul, the Union maintained its stand, but arguing for the first time that on any promotion the senior employee should have a chance to handle the new job and prove his ability Respondent replied that under this proce- dure it might have to try a series of seniors in the job and this could go on indefinitely before the job was permanently filled. Black then suggested, after a caucus, that the Union might change its position on seniority if it was agreed that present holders of jobs would not be ousted or replaced when Re- spondent exercised its agreed management rights Molony replied that the proposals of both sides did not prevent ouster o, transfer of a man who proved not qualified. There was no agreement The Union then brought up the issue of overtime, making a concession by asking that truckdrivers only be given volun- tary overtime after 40 hours of work Respondent argued this was precluded by the Federal Motor Careers Act which covered the situation. The Union argued in effect that Re- spondent could waive that law, as the Union represented drivers as well as other workers. There was no agreement The Union then suggested, after a private caucus, that it might accede to the company objections on union security and seniority if Respondent would accept the checkoff Re- spondent replied that it would not accept the checkoff for reasons previously stated . Black then said the Union might trade checkoff for its seniority proposal and "other lan- guage," without specifying the "other language." Respondent would not agree to this. After another private caucus, the Union then asked for more vacations than Respondent had offered. Molony replied that Respondent had already made substantial concessions on economic items of wages, holiday pay, and paid sick leave Black conceded only that there had been progress on the sick-leave pay. He asked for more explanation on the hand- ling of sick-leave pay. P. Roy Horecky explained it and then added that the economic offers amounted to a lot of money, and Respondent did not want to negotiate itself into a posi- tion on money items where it might have to ask for a reduc- tion in benefits in later negotiations, therefore Respondent had gone as far as it could on money offers in these negotia- tions After some recapitulation by Molony of the extent of the agreements and disagreements to date, to which Black did not object," Molony said Respondent had conceded as much as it could on contract language up to this point Black said the Union was in the same position, and suggested the parties contracts without checkoff clauses, as well as a Standard Fittings Co con- tract in Opelousas itself„where he and Molony)had negotiated several con- tracts in the past 1 I At this point, the parties were still apart on union security, checkoff, seniority, vacation pay, overtime pay, bonuses, grievance procedure and arbitration, waiver of further bargaining, and whether any agreement reached would preclude or allow further bargaining during its term jointly call in the Federal Mediation and Conciliation Service and have another meeting. Molony replied that he did not object to this, but doubted that Service could "cure our prob- lem," that the parties did not need it, for each could listen to any changes of position the other might offer, but both "had to change on something for us to reach agreement." He then suggested both sides review their positions to try to find some area of possible change, and then notify the other and seek a new meeting . He said the situation "needs to soak a while." Black replied that "we cannot stand too much time (for soak- ing), for if we did, we would have a problem ," indicating there might be a strike. The meeting adjourned without agree- ment on a new meeting date '2 Shortly after the July 26 meeting, the Union called on the Federal Mediation and Conciliation Service for assistance in the negotiations. There is no evidence that the mediator as- signed to the case reached Molony until August 13 Between July 26 and 30, the committee members gave the unit workers verbal reports on the deadlock with Respond- ent, and told them a strike was the next move if they could secure no break in the deadlock on union security, checkoff, seniority, vacation pay, overtime pay, and other deadlock issues On July 30, the workers met with the committee and Black and voted to strike, after Black advised them that the unresolved issues were union shop, checkoff, seniority, wages, overtime pay, vacations, bonuses, grievances, and arbitration 13 On July 31 Black phoned Molony to ask if Respondent had changed its position in any way Molony asked him the same question, and both agreed that neither side had changed. Black suggested the parties meet again on August 14 and 15 because he had a conference with Molony scheduled on the 15th involving another negotiation. Molony indicated he could not meet those days because of prior commitments Black did not suggest any other dates. The same day the Union sent Molony a letter formally suggesting the above dates for the reasons stated on the phone, and advising of a possible strike if the parties did not reach agreement in the week of August 13, since the union members had taken a strike vote with a deadline 14 4. The August I meeting On August 1 the workers' bargaining committee sought and obtained a conference with P. Roy and Conrad Horecky, without notice to, knowledge, or presence of Black. Speaking 12 The events of the three meetings are found from credible testimony of Molony with substantial corroboration on main points and the general se- quence of events from testimony of Black and Faul Testimony of Black in conflict with the findings is not credited because his memory was vague on many details , much of his testimony was colored by personal opinion and prejudicial conclusions , and his general notes of the negotiations and their progress, like Molony, but did not have them available to refresh his recol- lection because of an alleged burglary of the union office and a claimed destruction of the notes of this negotiation I have also considered Molony's manner of testimony and find it more credible, with his apparent sincere effort to recall as much of the details as possible, after review of his own negotiation notes on the stand, and the fact that he has long dealt with Black in other contract negotiations and became familiar with the Union's strategy and tactics in negotiations, as will be noted below 13 The above facts are found from credited testimony of Black and Faul 14 The above facts are found from credited testimony of Molony and documentary proof, with some corroboration from Black CHURCH POINT WHOLESALE GROCERY CO for the committee, Faul reminded the Horeckys of the strike vote and said they were there "on our own" to discuss the main issues in an attempt to prevent a strike, that the last thing they wanted was to take the workers out on strike, as they could not afford it, and it would hurt the Company Faul said the three issues, involving seniority, checkoff, and union security, did not involve any money and the workers wanted them. P. Roy Horecky replied that, on seniority, the company policy had always been to promote people most qualified for a job, like Faul who had been promoted to shipping clerk over the heads of more senior workers. Faul said he understood that action, but the workers felt the senior worker should have a chance to prove himself in a new job when it opened. Horecky replied the Company still wanted to promote the man they felt best qualified. On the checkoff issue, Horecky said the Company col- lected its own bills, and the Union should do the same, that he would not be a collection agency for the Union. He sug- gested that Higginbotham take on the job of collecting dues, but both Higginbotham and Faul said they did not want that job. On the issue of union security, Horecky banged his hand on the table and said there would never be a closed shop "as long as I live." He also said he could sell the business, and had a buyer for it, and that, if he sold it, the liquor operation would be moved out of town and the workers would have to drive to it if they still wanted to work in it. He said the chances were that the grocery operation would stay in Church Point, but he was not sure on that. On all three issues, the committee never offered, or indicated the Union might offer, any changes in the workers' demands. Horecky also said that, if the workers struck, he was pre- pared to continue operations, as the Company had many applications for work and would hire replacements." On August 13, Molony received an inquiry from the Fed- eral mediator about the status of the negotiations He out- lined the course of negotiations for the mediator, and said no meetings were scheduled. The mediator said he was available for services if needed. In an August 27 call from the mediator, Molony said he had no objection to a meeting with the Union but, after the mediator indicated there was no change in the Union's position, Molony said he saw no reason to meet again and "rehash the impasse." On August 28 Black phoned Molony and advised that he had talked to the Federal mediator who advised him the parties were "not quite ready to meet," that Respondent had indicated to him it was not then interested in another meet- ing. Black and Molony reviewed the respective positions of the parties. Black noted that "our positions were still the same" but indicated the Union was "now flexible" and asked for another meeting . They agreed to meet September 10 The strike ended August 29. On the 30th the Union wrote P. Roy Horecky regarding the reported replacement of and failure to recall some strikers, asking for company data on reassignment of duties and change of pay rates. Respondent replied by letter of September 6 stating the names and pay rates of replaced strikers and their replacements 15 The facts of the conference are found from uncontradicted testimony of Faul 5. The September 10 meeting 509 The parties reviewed the deadlocked issues of union shop, checkoff, seniority, and overtime, with both indicating their positions had not changed Black said that, if Respondent would not change its position on these, the Union would not change its position on any other items still at issue; that there could be an agreement only if Respondent changed its posi- tion, and that, if Respondent did not change its position and they could not make progress on any of the deadlocked issues, there could be another strike. Black queried Respondent about an alleged pay raise given striker Arnold Thibodeaux after he returned to work. P Roy Horecky explained he had given Thibodeaux a promotion to assistant superintendent of the wine room with a 20-cent pay raise, after Thibodeaux had told him during the strike that he intended to return Septem- ber 3 even if the strike continued. Black asked for another meeting, but Molony said he saw no reason for it 16 Contentions of parties and conclusions on the negotiations Considering that the Union won the election, despite prior antiunion and coercive conduct of Respondent amounting to unfair labor practices as found above, the progress°the parties made toward agreement in three negotiating sessions between July 12 and 26, affords impressive proof that Respondent was negotiating in good faith with the idea of reaching an agree- ment as soon as possible, avoiding long, drawn-out negotia- tions which would be costly to his client. Molony's testimony indicates that he had had long negotiation experience, partic- ularly with this Union, and well knew its bargaining strategy Hence, with the main idea of reaching agreement quickly, he caused Respondent to make a substantial offer on financial items at the first session , which the Union warily accepted without prejudice to later negotiations on financial issues As negotiations went on, the Union was apparently content with the basic wage offer, for it never came back with a demand for a basic wage rate above the 20-cent-an-hour raise offered by Respondent. On other items, both financial and nonfinan- cial, the parties by the end of the third session had gone through almost 40 union proposals as well as 20 company clauses, plus at least 3 oral counteroffers After concessions on position or wording mostly by Respondent, they had agreed on about 21 items or clauses offered by Respondent, while the Union had dropped 8 or 9 of its proposals. At the end of the July 26 session, they were apparently deadlocked on union security, checkoff, seniority, some aspects of vaca- tion pay and of overtime pay, some aspects of grievance procedure, and arbitration 17 General Counsel recognizes the force of the significant progress in the negotiations when he admits there were no violations of Section 8(a)(5) as such in the three meetings. He 16 The events of August 13-September 10 are found from credited tes- timony of Molony, P Roy Horecky, and Black 17 The number, type, and extent of the concessions by Respondent, which were the direct cause of many of the agreements reached and the progress made in bargaining, are potent indications of bona fide bargaining, in face of which the proofs pointing toward arbitrary and unreasoning refusal to make concessions in other area which might indicate bad-faith or surface bargaining must be impressive The Freeman Co, 194 NLRB 595, 575 (1971), Los Angeles Herald-Examiner, 197 NLRB 42 (1972), Collins & Atkman, 395 F 2d 277, 283 (C A 4, 1968) 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limits his claim of violation to the events of July 26 and thereafter, arguing that the deadlock on union security, checkoff, and seniority crystallized on that date only due to a preconceived determination of Respondent never to reach agreement on those issues, that it maintained this position in the negotiations without doing any more than listen to union arguments on those points, and in effect engaged in surface bargaining on those as well as other issues, without any at- tempt to explore the arguments thereon with a sincere desire to reach agreement on them He argues that Respondent's real attitude on them was cleverly concealed by its seeming sincere negotiations which were carried on "with sophistica- tion and finesse," and that the mere making of concessions on some items was the "very means by which to conceal a purposeful strategy to make bargaining futile or fail," citing N.L.R.B. v. Herman Sausage Company, 275 F.2d 229, 232 (C.A. 5, 1960). Using more colorful and descriptive language, the same court said good-faith bargaining takes more than mere "surface bargaining" or "shadow-boxing to a draw" or "giving the Union a runaround while purporting to be meet- ing with the Union for the purpose of collective bargaining" (citing earlier cases). Using this theory, General Counsel ad- mits that Respondent opened negotiations with a "firm but fair" econdmic offer, but then reduced the bargaining process to a sham by refusing to consider any change in position on the mandatory bargaining subjects of checkoff, union security, seniority, bonus, and vacations, citing General Elec- tric Company, 150 NLRB 192 (1964), enfd. 418 F.2d 736 (C.A. 2, 1969), cert. denied 397 U.S. 965 (1970). This argu- ment in effect limits the position of General Counsel to the attitude of Respondent on union security, checkoff, and seni- onty; I do not think the remaining disagreement on aspects of bonus payments and vacations were a serious obstacle to agreement, because Respondent had made substantial concessions on these issues, and the Union devoted little time to argument on these subjects at the July 26 meeting. On the issue of union security, it is patent that by the third meeting the Union had brought out and repeated all its main arguments for a union-security clause, i.e , the fairness of a requirement that all unit workers should pay the union dues for the service in representing them, whether actual members of the Union or not Throughout the sessions, according to Molony, Respondent stood fast on the "principle" that it would never agree to anything which might force employees to join the Union. Its position of this had hardened even before the first meeting, when Respondent posted a notice in the plant advising all employees to their rights under Section 7 of the Act "to refrain from any or all of such activities," i.e., the nght to "self-organization, to form, join or assist labor organizations," etc., and noting that this right is re- served to employees "unless the employer has agreed to a union shop" in a collective-bargaining agreement. This notice also cited the prohibition of Section 8(b)(1)(A) of the Act preventing a union from coercing employees in the exercise of any of the rights guaranteed by Section 7 of the Act Molony explained that Respondent posted this notice of em- ployees' statutory rights because of reports that employees had been told they must "buy a union book" (in effect a membership card) for $7 50 a month, or pay a penalty of $50, for such "book" later or "lose their jobs." The same reports were also the reason for Respondent's adamant refusal throughout the negotiations to accede to a checkoff which will be discussed in detail below, as well as for its proposal on July 26 of a new right to discipline or discharge a worker who tried to violate Section 7 rights of other workers. If Respondent, as the owner of a "paternalistic" family business in a small town in Louisiana (using its own description) had bluntly told the Union during negotiations that it did not want to be party to any union-security clause in effect forcing employees, particularly older workers, into the Union be- cause it abhorred coercion and threats of the type reported to it, its basic stand against a union shop might strongly support the conclusion that it was here insisting in good faith upon exclusion of both the union shop and checkoff out of a sincere conviction that it should not be party to a possible violation of the law, based on its desire to protect funda- mental rights of employees under the Act.18 However its failure to argue its belief in such reports, plus the repeated blunt announcements by P. Roy Horecky to employees both before and after the election that he would never have a "closed shop" "as long as I live," militates to an extent against such a finding.19 Molony frankly admitted in his tes- timony that he did not refer specifically in any bargaining meeting to the reports of alleged coercion of workers by the Union, because he did not want to upset the amiable and smooth progress of the meetings, but there is no reason given why he did not disclose that fundamental basis for rejection of any union-security clause in the July 26 or later meetings, after realizing that the parties were approaching a deadlock on three issues and learning that a strike was imminent, particularly since he did offer a new management rights provision based in part on the same argument. On the other hand, the Union still had two alternatives it could have of- fered, i.e., an agency shop or some form of maintenance-of- membership provisions, at the July 26 meeting,20 in an ef- fort to break the deadlock on union security. Its failure to make that suggestion then or in later discussion between Black and Molony indicates that the Union had hardened its position on a union-shop demand, with nothing less, to the same extent that Respondent was adamant against that form of union security. This is some indication of a bona fide impasse on that point. Nor does General Counsel's argument that no "self-respecting" union could be asked to forego 18 It is well settled that the Act does not require concessions by either side during bargaining (Section 8(d)) nor the surrender of convictions or altera- tion of philosophies, provided such convictions or philosophies are not made operative in such manner as to foreclose bona fide consideration of bargama- ble issues Duro Fittings Company, 121 NLRB 377, 383 (1958) 19 The testimony of Horecky and employees indicates that in these an- nouncements he only used the term "closed shop," which was obviously unlawful under the Act, but his own testimony also shows he knew the difference between a "closed" and a "union" shop, and that the Union's only demand was for a "union shop" hence I must conclude that his public stand against a "closed shop" (something never demanded) could only mean to employees that he was adamant against a "union shop," or any other type of union security, since both types of union security involved eventual enforced membership of employees in the Union 20 Black testified vaguely that at the second or third meeting, he did mention "agency shop" as a possible concession on union security, but I do not credit his story because both he and Faul testified that the strike began in part over the demand for a "union shop," and Molony credibly denied the Union ever mentioned "agency shop" in the discussions This Union is well aware of the agency shop, and has tried to get that provision in con- tracts with other employers See, for example Dow Chemical Company, 186 NLRB 372, 381, 382 (1970) CHURCH POINT WHOLESALE GROCERY CO 511 i union security in this modern day and age21 have any per- suasive value where, in the discussions of the issues, Molony countered the union argument that more and more modern contracts contain union security and checkoff, with the credi- ble argument that he knew of at least three labor contracts of the Union in that area without such clauses,22 and Black admitted he knew of one at least. In addition, at one point in July 26, Black indicated the Union might waive union security and seniority if it could get the checkoff, which indicates that it was at that point more interested in a me- chanical checkoff to aid its financial operation than union security with its requirement of ultimate union membership of all unit employees. These circumstances tend to weaken the argument that Respondent took a position on union security which was so limited or arbitrary that it could only be intended to weaken or destroy the Union's position as bargaining agent of the employees. In opposing the checkoff, Respondent presented argu- ments premised in part on the Union's ability and duty to represent the employees and hence to collect its own fees for services rendered and handle its own bookkeeping, like any other business, and in part upon the unfairness of saddling Respondent with this duty, saying that the employer should therefore not be required to act as the collection agency for the Union. In taking this stand, Molony indicated it was influenced largely by reports of coercive tactics by union adherents against employees, designed to persuade them to sign up immediately with the Union, as found above. How- ever, Respondent's failure to cite in negotiations this funda- mental reason for its attitude (aside from public recital of provisions of the act protecting workers against coercive con- duct by employers and unions) raises some doubt whether it was honestly disclosing all its basic reasons for opposing the checkoff. Considering that P. Roy Horecky, one of the heads of the family business, who boasted his door was always open for talk with his employees, and who talked very openly and bluntly to them before and after the election as found above, was patently very serious about protecting the rights of work- ers, mainly his older employees, under the Act, it is incredible that at some point in the discussions either he or Molony would not emphasize this reason for his adamant stand against this provision. The failure to do so tends to support the inference that coercion of employees was not a real reason for their stand and that they were not bargaining in good faith on checkoff or union security While the Union presented counterarguments for a checkoff based on the alleged hard- ship of requiring the Union or its members to collect their own dues, in contrast with the alleged slight inconvenience to Respondent if it merely added dues checkoff to its established procedures of deducting money from paychecks for other purposes, Respondent did not change its position, and an apparent standoff on both issues came on July 26 However, in face of Respondent's unyielding position, the Union became flexible on union security, checkoff, and seniority. It first suggested it might accept the company position on union security and seniority if Respondent would accept the check- 21 See NL R B v Reed & Prince Manufacturing Company, 205 F 2d 131, 139 (C A 1), cert denied 346 U S 887 22 This statement was clearly based on his long personal experience in other negotiations in Louisiana and the Southwest, which General Counsel and the Union do not question off. When Respondent still rejected the checkoff, the Union then suggested it might drop checkoff for its "strict seniority" proposal and "other language." Respondent rejected this proposal It maintained its stand on union security and check- off during the August 1 meeting with the workers' bargaining committee, and in later discussions with the Union, with one slight exception. In talking to the committee, P. Roy Horecky suggested that Committeeman Higginbotham should act as a agent for the Union in collecting dues, which the latter re- jected. Although the record does not show whether the com- mittee reported this to the union agents later, and there is no proof that the Union in later discussions, particularly on September 10, proposed as an alternative of checkoff that union agents, shop stewards, or other designated persons be allowed to collect dues for workers in the plant, either on company or nonwork time, Horecky's suggestion shows it was in his mind as an alternative to checkoff, hence the failure of Molony in later talks with Black to broach the same or a similar alternative to the Union as a possible means of solving the checkoff impasse is strong evidence that Respondent was not disposed then or earlier to make some overture toward the Union in an effort to resolve the dispute. I recognize it is not usually the obligation of the employer to make sugges- tions on a matter which is basically a union problem and responsibility, and that refusal by an employer to aid a union by acceding to a checkoff of dues is not sufficient, standing alone, to permit an imputation of intent to frustrate final agreement, but this is true only if the refusal is supported by reasons of substance which are advanced in good faith and to further legitimate business interests, while indicating that it still retains an open mind on the issue.23 Hence, where the Union had displayed a disposition to be flexible and make concessions on the deadlock issues, and Respondent itself indicated to the workers that it had in mind a possible alter- native to the checkoff, at least it was incumbent upon Re- spondent, as evidence of its good faith, to broach the alterna- tives formally to the Union after July 26, when the latter questioned its present stand, if it were sincere in its desire to resolve this issue, as well as others, in any effort to reach a final agreement Its failure to do so in any of Molony's later talks with Black or through Molony or P. Roy Horecky in the September 10 meeting is further evidence of its lack of desire to reach an agreement in good faith. This conclusion is further strengthened by examination of remarks and con- duct of P. Roy Horecky before, during, and after the three bargaining sessions.24 His repeated remarks to workers that he would never give any "closed shop" (meaning any form of union security) or the checkoff "as long as I live," and his pointed remarks to Faul and Higginbotham that he would only give benefits to the workers, not to the Union, and that he felt the Union was of such little consequence that it could 23 McLane Company, Inc, 166 NLRB 1036, 1042 (1967), Roanoke Iron & Bridge Works, Inc, 160 NLRB 175, 180, 181, American Oil Company, 164 NLRB 36, 38, 39, Standard Trucking Company, 183 NLRB 564 (1970) 24 It is well settled that a determination of good faith or lack of it normally must rest on inferences drawn from more or less persuasive manifestations of the employer's state of mind, so that the Board must examine the em- ployer's conduct as a whole, including previous relations between the par- ties, antecedent events explaining behavior at the bargaining table, and the course of the negotiations NL R B . v Truitt M f g Co, 351 U S 149, 155-157 (1956) 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I be bribed or bought off, as well as his and Molony's repeated claim that Respondent would never act as the collection agency for the Union, strongly indicate that Respondent was treating the Union, not as the certified bargaining agent of the workers, but as an interloper seeking to gain some advantage for itself, in any dealings between Respondent and its em- ployees This attitude ignored the fact that Respondent was in fact and in law dealing with the employees themselves, when it talked to the Union as their bargaining agent. This is strong indication of bad-faith bargaining, for in effect Re- spondent was announcing to the employees, during and after bargaining, that, while it would give them benefits as work- ers, it would not consider a grant of certain union-security and financial mechanical aides which they wanted, because they were asking for them through their bargaining agent.25 Considering the totality of its conduct vis-a-vis the employees and their chosen agent before, during, and after the active negotiations, I am constrained to conclude that Respondent's longstanding attitude of hostility toward the Union, including its blunt threats of reprisal against the em- ployees because of their adherence to the Union, even after the election, pervaded and controlled its attitude in bargain- ing in its adamant opposition to both union security and the checkoff, and that such attitude was a primary cause of the impasse reached on both issues. In this respect, Respondent failed to meet its obligation to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. Further support for this conclusion is found in Respon- dent's dealings with the Union on the seniority issue. At the first meeting Respondent explained in detail cogent business reasons for its desire to continue to have all personnel changes governed by merit alone. It gave other cogent reasons in full discussion of the issue on July 26. After the Union gave its first and only response suggesting trial periods for senior workers promoted or transferred to vacant jobs, Respondent responded with equally cogent arguments against a possible unending series of trial-and-error periods with successive sen- ior workers. The Union indicated it would back down from strict seniority if Respondent agreed to protect present job holders whenever it exercised any of its agreed management rights Respondent's reply was that the proposals of both sides would never prevent removal or transfer of a worker, if he was not qualified It is patent that the Union was far from adamant on its basic or later seniority provisions when it offered to drop seniority and union security for the checkoff In view of its flexibility on seniority, I cannot agree with General Counsel that the "self-respecting union" argument applies here, but I do conclude that its willingness to make a substantial compromise on seniority in return for the check- off left an opening for Respondent, which was adamant against checkoff throughout, to explore and possibly offer some middle course on handling of promotions and other types of personnel changes, such as consideration of seniority as one of many factors in deciding on a personnel change, still leaving the decision to Respondent, but making it reviewable more or less through the grievance procedure. There was always a possibility that if offered such a proposition the Union might be induced to drop the checkoff entirely, which was clearly far more important to the Horeckys than in-b 25 Kayser-Roth Hover.- Co, 176 NLRB 999, 1000, 1001 (1969) creased wages and other subjects on which Respondent had made concessions.26 While Respondent was at no time re- quired during bargaining to offer or agree to any procedure on either union security or checkoff which would place a burden or added work on it which it sincerely felt should be handled only by the Union for its own benefit as agent of the workers, Respondent was not thereby prevented from prof- fering suggestions similar to that of Horecky which might make it easier for the Union to do its own membership re- cruiting and collect its own dues, while not placing any bur- den upon Respondent or its business operation If Molony did not already know of such alternatives from his long experi- ence in collective bargaining, I am sure ideas along that line were available from mere perusal of the myriad of collective- bargaining cases which have been decided by the Board and reviewed by the courts over the past 35 years. The mere reading of Horecky's suggestion to the committee in his tes- timony suggests several variations of his idea which might be acceptable to Respondent and the Union after discussion, but of course neither this Judge nor the Board can substitute its ideas or judgment for that of the parties in the course of bargaining.27 Respondent's failure in these circumstances to make some reasonable effort in some direction to compose their differences on this issue as well as checkoff is a substan- tial indication of its failure to bargain in good faith on both subjects 25 Additional indicia of Respondent's bad-faith bargaining on all three issues appears in its dealing with the Union and the workers after July 26. In talking to the Federal mediator on August 13 and 27, Molony apparently failed to indicate Re- spondent had a suggestion for the Union of the checkoff issue which might bear fruit in resumed bargaining, but instead discouraged entry of the mediator into the negotiations on the ground of a continuing impasse, although he well knew the Union had been flexible on union security and checkoff at the July 26 meeting, and he must have known of Horecky's suggestion on checkoff to the committee on August 1. This supports the inference that Respondent was at this point trying to maintain the fiction of a genuine impasse in order to avoid further bargaining meetings . Although Respondent agreed to the September 10 meeting after the Union indicated it was "now flexible," at that meeting Molony indicated no change in the company position, and while Horecky was present at that meeting, neither he nor Molony repeated the suggestion on checkoff procedure which had been made pri- 26 According to Molony , Respondent 's strategy on this issue , based on his long experience in bargaining with this Union , was to start negotiations with a seniority proposal most favorable to present company operations, and stay as close to that position as possible in this negotiation , knowing that in future negotiations the Union would continually try to tighten the seniority provi- sions of any contract, usually seeking new limitations as a last concession from the employer before it would finally settle on a contract , and that as time went on the Union usually tried to graft new limitations on company movement of workers, until the seniority provisions became very com- plicated and unwieldy , usually more productive than not of more disputes under the grievance procedure While this strategy is not argued as indica- tive of bad faith, it still did not preclude Respondent from offering some concessions , however minor, as an indication of flexibility on the main issue, without prejudice to its position in future negotiations 27 The Board may not , directly or indirectly, compel concessions or other- wise sit in judgment on the substantive terms of collective-bargaining agree- ments NL R B v American National Insurance Co, 343 U S 395, 404 28 NLRB v Reed & Prince Manufacturing Co, 205 F 2d 131, 134 135 (GA 1) CHURCH POINT WHOLESALE GROCERY CO. 513 vately to the committee on August 1. I must conclude that Respondent deliberately kept silent on this suggestion, in order to maintain the impasse which it had been instrumental in creating and thus avoid further fruitful bargaining, not- withstanding its realization that the Union was willing to make concessions on the three deadlocked issues. This was further clear indication of "surface" or "sham" bargaining in bad faith in violation of the Act.29 D. Events during and after the Strike The strike began at midnight on August 20, and ended August 29 During its course, the Union had up to six pickets on duty daily 12 hours on two shifts at the liquor warehouse on Main Street, Opelousas, and in front of the grocery ware- house on Rayne Highway, with some at its back gate and the loading dock and garage. The grocery warehouse is located about three long blocks from Main Street and the liquor warehouse. P. Roy Horecky admits that on various occasions during the strike he told picketing employees that Respondent would "never have a closed shop or checkoff as long as I live." Although he admits he knew the difference between a "closed shop," which is illegal under the Act, and a "union shop" (which was legal) and he also knew from the negotiations that the Union was asking only for the "union shop," his tes- timony also indicates that he was equating the two forms of union security both in negotiations and in remarks to strikers. I find that his remarks to the strikers were coercive because, when stated in those terms without explanation, they tended to demonstrate to workers the futility of further negotiations on that issue, as well as an adamant and apparent unreason- ing attitude on it, which is some evidence of bad-faith bar- gaining. I find that Respondent thereby violated Section 8(a)(1) and (5) of the Act. On the evening of August 21, P Roy Horecky told striker John Bihm in the presence of Faul and Higginbotham that he was surprised a man of Bihm's long tenure would be on strike. Bihm replied he was just out there, like the other workers. Horecky commented that the company retirement policy cost it about $100,000 a year, but that "now that you are on strike, you lost it." Horecky then asked Higginbotham if he thought the strike was doing any good. Higginbotham replied "We dust have to wait and see." Horecky then told a group of strikers standing there that he felt sorry for them, that "these 2 guys (including Committeemen Faul and Higginbotham), are making all the money while you are out here not collect- ing a damn thing," that the Union was paying the two com- mitteemen to be out on strike. Faul denied this. Horecky then asked the workers present if they wanted to return to work the next day. Higginbotham replied that he would "if you give us what we want." Horecky said "Hell, no, and as to the closed shop you will never have it as long as I live, I will sell the plant, lock it up, and close it down before I will give you that."30 I find that Respondent made coercive threats violat- ing Section 8(a)(1) of the Act in Horecky's statement to Bihm 29 In reaching the above conclusions, I have carefully studied other cita- tions of authority by Respondent, and its arguments based thereon, but find such authorities either inapposite on the facts or not inconsistent in law with the legal conclusions I have reached 30 These facts are found from uncontradicted testimony of Faul that he had lost his retirement benefit by engaging in the concerted activity of a strike, his disparagement of the two committeemen as alleged paid and favored union members in contrast with other strikers," and his threat to sell and close his plant before giving into the Union on the "closed shop" (which in light of the Union's demands patently meant a "union shop"). These remarks further impressed on the workers the futility to try to secure that form of union security through the Union, and were additional indicia of Respondent's bad-faith bargaining, in violation of Section 8(a)(5). About 6 p.m. or later on August 24, Salesman Carl Guidry and General Manager Richard Horecky returned to the liq- uor warehouse in a truck after making deliveries of merchan- dise to customers. They drove the truck openly through the picket line when leaving and returning. After parking it on return, both men then got into their cars to drive out of the plant yard and go home Guidry drove out first. As he drove away from the plant along Main Street toward Rayne High- way, striker Cary LeJeune started his car parked on Main Street opposite the plant and followed Guidry. Horecky saw him take off after Guidry, so he drove'his own car out and followed LeJeune He caught up with LeJeune at the traffic light at the intersection of Main and Rayne Highway, and saw him make a right turn to follow Guidry who was already driving along Rayne Highway. When Guidry turned left on Voitier Street to proceed toward his home at the end of that street, LeJeune followed him with Horecky close behind. On Voitier Guidry deliberately slowed and pulled off the road to see what LeJeune would do, and the latter also slowed and pulled off, then swerved out and passed Guidry, driving to a stop sign at the corner of Keller Street. As Guidry drove up behind him, LeJeune turned left on Keller and drove back in the direction of Main Street. Guidry continued across the intersection to his home at the end of the dead-end street, and parked his car outside his home. As he did so, Horecky drove up, after watching LeJeune turn left on Keller, picked up Guidry in front of his home, and then drove back down Voitier, turned right on Keller and parked in a driveway at a point where they could watch for LeJeune's car. Shortly, they saw LeJeune turning left off Keller, driving back to Rayne Highway and left along it to Voitier, where he turned left, continued to Keller and crossed it, going toward Gui- dry's house. Horecky followed along Keller and turned into Voitier where they saw LeJeune drive into Guidry's driveway and turn around to come back down Voitier. As he did so, Horecky pulled up and blocked LeJeune's car with his. Both men got out, approached LeJeune's car and Guidry asked what LeJeune was doing driving into a driveway on a dead-end street. LeJeune replied he thought it was a through street, but started to turn around when he saw it was a dead end. Guidry cursed at LeJeune, asking "this is the second time you came around, what are you doing around my house?" LeJeune said he thought he was driving toward the wholesale grocery warehouse. Guidry said LeJeune knew the warehouse was not on Voitier Street, that he had lived in Church Point long enough to know that. Guidry then said he 31 This type of remark is coercive because it tends to divide union mem- bership by indicating to some members that the Union practices favoritism toward others , . 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not know what his intentions were, but "if you have anything against me, take it out on me," that he did not want LeJeune to "mess around my house with my family or any- thing like that," and if he caught LeJeune in the neighbor- hood again, he would blow his head off. At the same time, he pulled a pistol out of a case he was carrying and waved it toward LeJeune. One or both men then began to open the car door, and LeJeune said, if they laid a hand on him, they would be sorry. Horecky then said LeJeune was a stupid, ignorant little bastard, who would take orders from Faul and Higginbotham and was too stupid and young to know any better. LeJeune said something about going back to work that night, and Horecky replied that it was no use for him to come back, that he was "finished." Both men then got into Horecky's car and drove away. LeJeune drove off, went to the grocery warehouse to check on the picket line there, and then drove to the home of a girl friend." General Counsel argues that the remarks and actions of Guidry constituted coercive threats of bodily harm and ac- tual verbal abuse toward LeJeune. Although LeJeune testi- fied he left the liquor warehouse at the same time as Guidry in order to drive to the grocery warehouse and check on pickets there, on orders of Faul, I do not credit him, but am convinced he was deliberately and closely following Guidry to see where he was going or for a possibly more sinister reason His takeoff right after Guidry left the warehouse, close following almost to his home, and turning off shortly before reaching the house to get back on Voitier Street again, directly away from rather than toward the grocery ware- house, convinces me that he deliberately started out to dog Guidry all the way to his home, was scared off by Guidry's stopping movement on Voitier Street , and then circled back to continue down to his house His shortest and simplest route to the grocery warehouse was along Rayne Highway from Main Street, and I do not credit his explanation that he was mixed up because he did not know the streets , and was trying to find some back road into the grocery warehouse grounds, for he had worked for Respondent almost a year and must have been familiar with the location of both warehouses, if not with the whole street system of Church Point Hence, both Guidry and Horecky had good reason to believe from his close following of Guidry that he was doing so deliber- ately and with some intent connected with the strike and Guidry's continual crossing of the picket line . It follows that when Guidry accused him of loitering around his home and warned him to stop it, even with verbal abuse, I do not think Guidry was engaging in any more than the type of rough free speech which has long been associated with strike activity and which the Board has often condoned as "animal exuberance" when coming from striking employees However, when Guidry pulled out a gun and pointed it toward LeJeune to emphasize his point, and one of them began to open the door, this overt action was well calculated to put LeJeune in fear of bodily harm , and since it came when he was engaging in a form of surveillance or tracking by auto which is common in strike situations, I conclude that the plain threat of physi- cal harm was coercive and violative of Section 8(a)(1) of the 31 These facts are found from a composite of credible testimony of Ho- recky, Guidry, and LeJeune, plus documentary proof Testimony of any of the three in conflict therewith is not credited Act. Horecky also added a coercive threat when he advised LeJeune he was "finished" and need not try to return to work, as it is well settled that discharge of a stnker , whether engaged in an economic or unfair labor practice strike, for such concerted activity, violates the Act.33 I make no finding of violation of the Act by Respondent from: (1) Events on August 27 at the picket line involving stnker Higginbotham and Salesman Link Delahoussaye, as to which there was conflicting testimony about a verbal argument be- tween the two involving an accusation by Delahoussaye that Higginbotham was in some way responsible for the mysteri- ous theft of a gun from Delahoussaye 's car. Whatever the facts and their implications , the record shows only that Dela- houssaye at the time was only a salesman and buyer for Respondent, without any indicia of supervisory authorities or duties. There is no proof that his remarks and conduct on this occasion occurred in the presence of or was approved by officials of Respondent . Hence, Respondent is not responsible for his conduct. I recommend dismissal of paragraph 14 of the complaint dealing with this incident. (2) Remarks of Plant Security Guard David Wimberly to Higginbotham on the picket line on August 28, when he warned him he would hold him responsible, as apparent head of the stnkers and union members, for anonymous threaten- ing telephone calls to Wimberly's wife at their home At the time Wimberly was a retired former law enforcement official who was working temporarily for Respondent during the strike as security guard at the grocery warehouse . He had no employees working under his supervision, and there is no proof that he had any supervisory authority, hence Respond- ent is not responsible for his remarks to Higginbotham, whether or not they may have had implications of coercion. I recommend dismissal of paragraph 15 of the complaint dealing with this incident. (3) The conduct of Robert Voitier, Jr., during the strike, in driving his automobile out of the grocery parking lot late one afternoon, and skidding it as he braked to a stop before crossing the sidewalk into the public street , to allow a car to pass by. As he stopped no picket was in front of him, and Committeeman Faul was talking to stnkers nearby. Faul accused him of driving too fast, and Voitier cursed at him. Faul admitted neither he nor any pickets were in the path of the car when Voitier braked it to a stop. This incident is not charged in the complaint nor argued by General Counsel in his brief. E The Treatment of Striking Employees On August 30, Black had a conference with P. Roy Ho- recky in the latter's office, in which he told Horecky the pickets had been removed, and all the strikers were offering unconditionally to return to work Horecky replied that he would not take back Higginbotham and Faul , saying he did not think they wanted to return, as they had not told him they did. Black replied both had been on the picket line , and this indicated they wanted to return after the strike, and Black was now unconditionally requesting their return to work Black also told Horecky it was a mistake for Respondent to 33 Riviera Manor Nursing Home, Inc, supra CHURCH POINT WHOLESALE GROCERY CO. 515 lose their long experience, that Horecky should reconsider. Horecky replied that he had made up his mind and had replaced them in the plant Black asked about recall of Sen- nett, the other committeeman, and Horecky said he would have to consult his brother Conrad about him, because Sen- nett worked in the grocery warehouse, of which Conrad was president When warehouse helpers LeJeune and Doucet applied to P Roy Horecky for their jobs on August 29, he told each he had been replaced. Before the strike Respondent employed six to eight helpers, but only one or two worked during the strike. A new helper, one Janisse, was hired August 24, osten- sibly to replace LeJeune. He quit 4 or 5 days after the strike ended, but Respondent made no attempt to recall LeJeune thereafter. During the strike, John Brasseaux and his son, Jimmy, picketed part time. In this period Conrad Horecky told Er- lene Bellard that John Brasseaux and Arceneaux would "have no problem," they could return to work any time, as their jobs were still open. While talking to Bellard, P. Roy Horecky came in and overheard the above remarks, and in- terjected "Not Jimmy, he does not have any job here, he went too far " Jimmy Brasseaux left town right after the strike ended, but when he returned on August 31, he had a letter from Respondent advising that he had been replaced Both John Brasseaux and Arceneaux were recalled to work. When striker Theresa Malbrough applied for her job on August 29, Conrad Horecky told her she had been replaced, but if that person did not meet company standards, he would let Malbrough know. She has never been recalled. Committeeman Sennett was told by his foreman after the strike that he had been replaced. One Walter Chavis replaced him during the strike. Sennett was recalled to work Novem- ber 19, after Chavis had quit. On September 7 the Union sent Respondent a letter for- mally making an unconditional offer of return to work on behalf of Jimmy Brasseaux, Archie Brinkman , Nolan Cor- mier, Joseph R. Doucet, John Milton Faul, Paul Higginbo- tham, Cary LeJeune, Theresa Malbrough, and Edward J. Sennett. Respondent did not reply.3a I find that Respondent violated Section 8(a)(1) of the Act by the remark of P. Roy Horecky, indicating to Bellard that Jimmy Brasseaux would not be recalled because "he went too far," which could only refer to his strike activities As I have found that Respondent violated Section 8(a)(5) of the Act by its failure to bargain in good faith on union security, checkoff, and seniority, on which its conduct created an impasse, and that the employees went on strike because of that impasse, it follows that the strike of August 21 was an unfair labor practice strike. It is well settled that such strikers are entitled to immediate reinstatement to their former jobs, upon unconditional application for reinstate- ment, and that the employer must remove, if necessary, any replacements hired during the strike;35 and, when Respond- ent failed to reinstate nine such strikers named above after the 34 The above facts are found from uncontradicted testimony of some strikers involved , Black, Richard Horecky, and documentary proof I do not credit conflicting testimony of P Roy Horecky, in light of his admissions of other coercive remarks found above 35 Federal Pacific Electric Company, 203 NLRB 571 (1973), American Steel Building Company, inc, 208 NLRB 900 (1974) Union made an unconditional request for reinstatement on their behalf on August 30, Respondent discriminated against them in violation of Section 8(a)(3) and (1) of the Act.36 CONCLUSIONS OF LAW 1. By questioning employees regarding their union senti- ments and activities; telling them that they would get more benefits directly from Respondent than through the above- named Union, that Respondent would never have a union in its plants, that, if the Union was voted in, it would never grant the employees any form of union security, that they should leave the Union alone, else it would get them in trouble, that Respondent would buy off the Union if it was voted in, and that employees would lose their jobs or benefits if they went on strike for the Union or assisted it otherwise, encouraging employees and relatives of employees to induce employees to vote against the Union; advising employees it would sell the business if the Union came into its plants, and that, if they voted for the Union, they would suffer reprisals, Respondent has'coerced and restrained employees in the exercise of rights guaranteed to them by Section 7 of the Act, thereby engaging in unfair labor practices affecting commerce within the mean- ing of Sections 8(a)(1) and 2(6) and (7) of the Act 2. By failing and refusing on and after July 26, 1973, to bargain in good faith to the extent found above with the Union as the exclusive representative of all production and maintenance employees of Respondent at its Church Point warehouses, including shipping clerks, warehousemen, help- ers, truckdrivers, mechanics, bottling department employees, maids, and bottling and shipping supervisors, but excluding all office clerical employees , salesmen , professional em- ployees, guards, assistant grocery manager, and all supervi- sors as defined in the Act, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and 2(6) and (7) of the Act. 3 By advising employees during negotiations with the Union and during a strike that Respondent would never grant any form of union security, to their Union, but would sell or close up the business before doing so; advising them that they lost present benefits by striking and by disparaging their Union by charging it discriminated against its members by paying employee striker leaders but not the striking employee members; and threatening strikers with physical harm from weapons while they engaged in apparent protected, concerted activities, Respondent engaged in unfair labor practices af- fecting commerce in violation of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act.. 4. By discharging employees because they went on strike for the Union, and failing and refusing to reinstate unfair labor practice strikers upon their unconditional offer to re- turn to work, thereby discriminating in regard to the tenure of employment of employees, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 5. The strike which began on August 21, 1973, was from its inception an unfair labor practice strike 36 Sweeney & Co., 176 NLRB 208, 212, 213 (1969), LTVElectrosystems, Inc, 169 NLRB 532, 534 (1968) 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations described in sec- tion I, above, have a close, intimate and substantial relation- ship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce IV THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The unfair labor practices found include a variety of threats of discharge, deprivation of benefits, and other reprisals for union activity , conduct cal- culated to impress upon employees the futility of choosing the Union as bargaining representative, followed by bad-faith bargaining with that representative, and discharge of and refusal to reinstate unfair labor practice strikers, all of which strikes at the fundamental purposes and objections of the Act I shall therefore recommend a broad order. As I have found that Respondent violated the Act by its refusal to bargain in good faith with the Union as the exclu- sive bargaining representative of its employees in the appro- priate unit described above, I will recommend that it be or- dered to bargain collectively, upon request, with the Union as such representative and, if an understanding is reached, embody such understanding in a signed agreement. The record shows that Respondent 's bad-faith bargaining stemmed from its continued desire to delay and defeat the Union's attempts to bargain for the employees , despite its certification as bargaining agent. As over 10 months have passed since it achieved that status by certification of May 10, 1973, and even assuming compliance with the Order I recom- mend, little time remains in the certification year for resump- tion of bargaining . Hence, I shall recommend that the certifi- cation year be extended through 1 year after Respondent begins bargaining in good faith . American Steel Building Company, Inc., supra. As Respondent has unlawfully discharged certain strikers, and refused to reinstate certain unfair labor practice strikers' after their unconditional offers on August 30 to return to work, I shall recommend an appropriate order for immediate reinstatement of all of these strikers who have not already been reinstated. I will also recommend that Respond- ent make each of said strikers, and any others who have been reinstated, whole for any loss of pay they may have suffered by reason of Respondent 's refusal of reinstatement , according to the usual formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum on any sums payable, per Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The backpay period for each striker not yet reinstated will run from August 29, 1973, to the date of Respondent's unconditional offer of reinstatement . For any strikers already reinstated , it will run from August 30, 1973, to the date of their actual reinstatement [Recommended Order omitted from publication.] 37 Jimmy Brasseaux , Archie Brinkman, Nolan Cormier , Joseph Rodney Doucet, John Milton Faul, Paul Higginbotham , Cary LeJeune , Theresa Malbrough, and Edward J Sennett