Cote Bros. Bakery, Inc.

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cote Bros. Bakery, Inc. and Local 348, Bakery, except that the attached notice is substituted for Confectionery and Tobacco Workers Interna- that of the Administrative Law Judge. tional Union of America, AFL-CIO. Cases 1- CA-17666 and 1-CA-17762 APPENDIX December 17, 1981 NOTICE To EMPLOYEES ~DECISION AND ORDER, ~ POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD BY CHAIRMAN VAN DE WATER AND An Agency of the United States Government MEMBERS JENKINS AND HUNTER On July 9, 1981, Administrative Law Judge After a hearing at which all sides had an opportu- Robert W. Leiner issued the attached Decision in nity to present evidence and state their positions, this proceeding. Thereafter, Respondent filed ex- the National Labor Relations Board found that we ceptions and a supporting brief, a motion to reopen have violated the National Labor Relations Act, as the record, and a motion to dismiss.' amended, and has ordered us to post this notice. Pursuant to the provisions of Section 3(b) of the WE WILL NOT threaten to discharge employ- National Labor Relations Act, as amended, the Na- ees who engaged in a lawful strike by telling tional Labor Relations Board has delegated its au- them that they are "through" if they continue thority in this proceeding to a three-member panel. to engage in the strike. The Board has considered the record and the at-E WILL NOT insist, to the point of bargain- WE WILL NOT insist, to the point of bargain- tached Decision in light of the exceptions and brief ing impasse, on nonmandatory subjects of bar- and has decided to affirm the rulings, findings,2 andn dn anamnty fr or - gaining, including an amnesty for all our em- conclusions of the Administrative Law Judge and, i a r e ployees who pass through or work behind the to adopt his recommended Order. U s picet Union's picket line. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce employees in Relations Act, as amended, the National Labor Re- the exercise of the rights guaranteed them i lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge and WE WILL, upon request, bargain collectively hereby orders that the Respondent, Cote Bros. in good faith with Local 348, Bakery, Confec- Bakery, Inc., Manchester, New Hampshire, its offi- tionery and Tobacco Workers International cers, agents, successors, and assigns, shall take the Union of America, AFL-CIO, in the below- action set forth in the said recommended Order, described unit with respect to wages, hours, and other terms and conditions of employment 'Respondent moves to reopen the record to adduce evidence that its and embody any understanding reached in a assets have been foreclosed and are being liquidated, and that an involun- tary bankruptcy petition has been filed against the Company. Inasmuch as signed agreement: this evidence if established would not in any way affect the findings and result herein, see Sec. 102.48(dX1) of the Board's Rules and Regulations, Bakery Production Department, Porters, Series 8, as amended, and inasmuch as such matters are more appropriate- Plant Maintenance and Shipping Depart- ly handled at the compliance stage of this proceeding, we decline to ments excluding Executives office and grant Respondent's motion. For the reasons discussed by the Administra- tive Law Judge in fn. 10 of his Decision, we also deny Respondent's clerical employees, guards, professional em- motion to dismiss. .... . . ployees, and supervisors as defined in the I Respondent has implicitly excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established Act. policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant WE WILL, upon their unconditional offer to evidence convinces us that the resolutions are incorrect. Standard Dry return to work, reinstate the strikers to their Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- old jobs, dismissing, if necessary, any replace- versing his findings. ments hired in their place, except where such In agreeing with the Administrative Law Judge that Respondent vio-replacements occurred before June 24, 1980, lated Sec. 8(aX5) of the Act, we find it unnecessary to pass upon the al- ternative theory (which he characterized as "legally unnecessary" to and make them whole for any loss of earnings decide) which he discussed in pars. 9 and 10 of the section of his Deci- that they may incur, with interest. Striking em- sion entitled "Discussion and conclusions" and in the section entitled "The Strike as of June 24, 1980." ployees who were premanently replaced or We note that the Administrative Law Judge inadvertently miscited whose jobs were abolished before June 24, Nelson Filter, a Division of Nelson Industries, Inc. The correct citation is 1980, shall be offered jobs when and if the pre- 255 NLRB 1080 (1981). Finally, we shall conform the Administrative Law Judge's notice with his recommended Order. 259 NLRB No. 101 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cote Bros. Bakery, Inc. and Local 348, Bakery, except that the attached notice is substituted for Confectionery and Tobacco Workers Interna- that of the Administrative Law Judge. tional Union of America, AFL-CIO. Cases 1- CA-17666 and 1-CA-17762 APPENDIX December 17, 1981 NOTICE To EMPLOYEES DECISION AND ORDER,, P O ST E D BY O R D E R O F T H E NATIONAL LABOR RELATIONS BOARD BY CHAIRMAN VAN DE WATER AND An Agency of the United States Government MEMBERS JENKINS AND HUNTER On July 9, 1981, Administrative Law Judge A ft e r a hearing a t w h ic h a ll si d es h ad a n opportu- Robert W. Leiner issued the attached Decision in nity t o present evidence and state their positions, this proceeding. Thereafter, Respondent filed ex- t h e National Labor Relations Board found that we ceptions and a supporting brief, a motion to reopen have violated the National Labor Relations Act, as the record, and a motion to dismiss. Iamended, and has ordered us to post this notice. Pursuant to the provisions of Section 3(b) of the WE WILL NOT threaten to discharge employ- National Labor Relations Act, as amended, the Na- ees who engaged in a lawful strike by telling tional Labor Relations Board has delegated its au- them that they are "through" if they continue thority in this proceeding to a three-member panel. to engage in the strike. The Board has considered the record and the at- E WILL NOT insist, to the point of bargain- tached Decision in light of the exceptions and brief ing impasse, on nonmandatory subjects of bar- and has decided to affirm the rulings, findings,2 andincluding an amnesty for all our em- conclusions of the Administrative Law Judge and py who ps t o r b the to adopt his recommended Order. Uin s pik tline. Union s picket line. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor in t e r fe re with, restrain, or coerce employees in Relations Act, as amended, the National Labor Re- t h e e x er c is e o f t h e rights guaranteed them in lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge and W E W ILL , upon request, bargain collectively hereby orders that the Respondent, Cote Bros. in good faith with Local 348, Bakery, Confec- Bakery, Inc., Manchester, New Hampshire, its offi- tionery and Tobacco Workers International cers, agents, successors, and assigns, shall take the Union of America, AFL-CIO, in the below- action set forth in the said recommended Order, described unit with respect to wages, hours, and other terms and conditions of employment 'Respondent moves to reopen the record to adduce evidence that its and embody any Understanding reached in a assets have been foreclosed and are being liquidated, and that an involun- , tary bankruptcy petition has been filed against the Company. Inasmuch asSigned agreement: this evidence if established would not in any way affect the findings and \, - o.^ tion rtment, D^-*.-^ result herein, see Sec. 102.48(dXD) of the Board's Rules and Regulations,Bakery Production Department, Porters, Series 8, as amended, and inasmuch as such matters are more appropriate- Plant Maintenance and Shipping Depart- ly handled at the compliance stage of this proceeding, we decline to ments, excluding Executives, office and grant Respondent's motion. For the reasons discussed by the Administra- tive Law Judge in fn. 10 of his Decision, we also deny Respondent's clerical employees, guards, professional em- motion to dismiss. ployees, and supervisors as defined in the I Respondent has implicitly excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established Act. policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant WE WILL, Upon their Unconditional Offer tO evidence convinces us that the resolutions are incorrect. Standard Dry return to work, reinstate the Strikers tO their Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir O jb dsiin f esar n epc- 1951). We have carefully examined the record and rnd d no basis ed jobs, dismissing, if necessary, any replace- versing his findings. ments hired in their place, except where such In agreeing with the Administrative Law Judge that Respondent vio- replacements Occurred before June 24, 1980, lated Sec. 8(aX5) of the Act, we find it unnecessary to pass upon the al- ternative theory (which he characterized as "legally unnecessary" to and make them whole for any loss of earnings decide) which he discussed in pars. 9 and 10 of the section of his Deci- that they may incur, with interest. Striking em- sion entitled "Discussion and conclusions" and in the section entitled "The Strike as of June 24, 1980." ployees who were premanently replaced or We note that the Administrative Law Judge inadvertently miscited whose jobs Were abolished before June 24, Nelson Filter, a Division of N e lson Industries, Inc . T h e c orre ct c itat io n is 1 9 8 0 , sh a ll be o ff e r e d j o b s w h e n a n d if t h e pre- 255 NLRB 1080 (198 1). Finally, we shall conform the Administrative Law Judge's notice with his recommended Order. 259 NLRB No. 101 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cote Bros. Bakery, Inc. and Local 348, Bakery, except that the attached notice is substituted for Confectionery and Tobacco Workers Interna- that of the Administrative Law Judge. tional Union of America, AFL-CIO. Cases 1- CA-17666 and 1-CA-17762 APPENDIX December 17, 1981 NOTICE To EMPLOYEES DECISION AND ORDER,, P O ST E D BY O R D E R O F T H E NATIONAL LABOR RELATIONS BOARD BY CHAIRMAN VAN DE WATER AND An Agency of the United States Government MEMBERS JENKINS AND HUNTER On July 9, 1981, Administrative Law Judge A ft e r a hearing a t w h ic h a ll si d es h ad a n opportu- Robert W. Leiner issued the attached Decision in nity t o present evidence and state their positions, this proceeding. Thereafter, Respondent filed ex- t h e National Labor Relations Board found that we ceptions and a supporting brief, a motion to reopen have violated the National Labor Relations Act, as the record, and a motion to dismiss. Iamended, and has ordered us to post this notice. Pursuant to the provisions of Section 3(b) of the WE WILL NOT threaten to discharge employ- National Labor Relations Act, as amended, the Na- ees who engaged in a lawful strike by telling tional Labor Relations Board has delegated its au- them that they are "through" if they continue thority in this proceeding to a three-member panel. to engage in the strike. The Board has considered the record and the at- E WILL NOT insist, to the point of bargain- tached Decision in light of the exceptions and brief ing impasse, on nonmandatory subjects of bar- and has decided to affirm the rulings, findings,2 andincluding an amnesty for all our em- conclusions of the Administrative Law Judge and py who ps t o r b the to adopt his recommended Order. Uin s pik tline. Union s picket line. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor in t e r fe re with, restrain, or coerce employees in Relations Act, as amended, the National Labor Re- t h e e x er c is e o f t h e rights guaranteed them in lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge and W E W ILL , upon request, bargain collectively hereby orders that the Respondent, Cote Bros. in good faith with Local 348, Bakery, Confec- Bakery, Inc., Manchester, New Hampshire, its offi- tionery and Tobacco Workers International cers, agents, successors, and assigns, shall take the Union of America, AFL-CIO, in the below- action set forth in the said recommended Order, described unit with respect to wages, hours, and other terms and conditions of employment 'Respondent moves to reopen the record to adduce evidence that its and embody any Understanding reached in a assets have been foreclosed and are being liquidated, and that an involun- , tary bankruptcy petition has been filed against the Company. Inasmuch asSigned agreement: this evidence if established would not in any way affect the findings and \, - o.^ tion rtment, D^-*.-^ result herein, see Sec. 102.48(dXD) of the Board's Rules and Regulations,Bakery Production Department, Porters, Series 8, as amended, and inasmuch as such matters are more appropriate- Plant Maintenance and Shipping Depart- ly handled at the compliance stage of this proceeding, we decline to ments, excluding Executives, office and grant Respondent's motion. For the reasons discussed by the Administra- tive Law Judge in fn. 10 of his Decision, we also deny Respondent's clerical employees, guards, professional em- motion to dismiss. ployees, and supervisors as defined in the I Respondent has implicitly excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established Act. policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant WE WILL, Upon their Unconditional Offer tO evidence convinces us that the resolutions are incorrect. Standard Dry return to work, reinstate the Strikers tO their Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir O jb dsiin f esar n epc- 1951). We have carefully examined the record and rnd d no basis ed jobs, dismissing, if necessary, any replace- versing his findings. ments hired in their place, except where such In agreeing with the Administrative Law Judge that Respondent vio- replacements Occurred before June 24, 1980, lated Sec. 8(aX5) of the Act, we find it unnecessary to pass upon the al- ternative theory (which he characterized as "legally unnecessary" to and make them whole for any loss of earnings decide) which he discussed in pars. 9 and 10 of the section of his Deci- that they may incur, with interest. Striking em- sion entitled "Discussion and conclusions" and in the section entitled "The Strike as of June 24, 1980"- ployees who were premanently replaced or We note that the Administrative Law Judge inadvertently miscited whose jobs Were abolished before June 24, Nelson Filter, a Division of N e lson Industries, Inc . T h e c orre ct c itat io n is 1 9 8 0 , sh a ll be o ff e r e d j o b s w h e n a n d if t h e pre- 255 NLRB 1080 (198 1). Finally, we shall conform the Administrative Law Judge's notice with his recommended Order. 259 NLRB No. 101 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cote Bros. Bakery, Inc. and Local 348, Bakery, except that the attached notice is substituted for Confectionery and Tobacco Workers Interna- that of the Administrative Law Judge. tional Union of America, AFL-CIO. Cases 1- CA-17666 and 1-CA-17762 APPENDIX December 17, 1981 NOTICE To EMPLOYEES DECISION AND ORDER,, P O ST E D BY O R D E R O F T H E NATIONAL LABOR RELATIONS BOARD BY CHAIRMAN VAN DE WATER AND An Agency of the United States Government MEMBERS JENKINS AND HUNTER On July 9, 1981, Administrative Law Judge A ft e r a hearing a t w h ic h a ll si d es h ad a n opportu- Robert W. Leiner issued the attached Decision in nity t o present evidence and state their positions, this proceeding. Thereafter, Respondent filed ex- t h e National Labor Relations Board found that we ceptions and a supporting brief, a motion to reopen have violated the National Labor Relations Act, as the record, and a motion to dismiss. Iamended, and has ordered us to post this notice. Pursuant to the provisions of Section 3(b) of the WE WILL NOT threaten to discharge employ- National Labor Relations Act, as amended, the Na- ees who engaged in a lawful strike by telling tional Labor Relations Board has delegated its au- them that they are "through" if they continue thority in this proceeding to a three-member panel. to engage in the strike. The Board has considered the record and the at- E WILL NOT insist, to the point of bargain- tached Decision in light of the exceptions and brief ing impasse, on nonmandatory subjects of bar- and has decided to affirm the rulings, findings,2 andincluding an amnesty for all our em- conclusions of the Administrative Law Judge and py who ps t o r b the to adopt his recommended Order. Uin s pik tline. Union s picket line. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor in t e r fe re with, restrain, or coerce employees in Relations Act, as amended, the National Labor Re- t h e e x er c is e o f t h e rights guaranteed them in lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge and W E W ILL , upon request, bargain collectively hereby orders that the Respondent, Cote Bros. in good faith with Local 348, Bakery, Confec- Bakery, Inc., Manchester, New Hampshire, its offi- tionery and Tobacco Workers International cers, agents, successors, and assigns, shall take the Union of America, AFL-CIO, in the below- action set forth in the said recommended Order, described unit with respect to wages, hours, and other terms and conditions of employment 'Respondent moves to reopen the record to adduce evidence that its and embody any Understanding reached in a assets have been foreclosed and are being liquidated, and that an involun- , tary bankruptcy petition has been filed against the Company. Inasmuch asSigned agreement: this evidence if established would not in any way affect the findings and \, - o.^ tion rtment, D^-*.-^ result herein, see Sec. 102.48(dXD) of the Board's Rules and Regulations,Bakery Production Department, Porters, Series 8, as amended, and inasmuch as such matters are more appropriate- Plant Maintenance and Shipping Depart- ly handled at the compliance stage of this proceeding, we decline to ments, excluding Executives, office and grant Respondent's motion. For the reasons discussed by the Administra- tive Law Judge in fn. 10 of his Decision, we also deny Respondent's clerical employees, guards, professional em- motion to dismiss. ployees, and supervisors as defined in the I Respondent has implicitly excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established Act. policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant WE WILL, Upon their Unconditional Offer tO evidence convinces us that the resolutions are incorrect. Standard Dry return to work, reinstate the Strikers tO their Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir O jb dsiin f esar n epc- 1951). We have carefully examined the record and rind no basisfe'"Id jobs, dismissing, if necessary, any replace- versing his findings. ments hired in their place, except where such In agreeing with the Administrative Law Judge that Respondent vio- replacements Occurred before June 24, 1980, lated Sec. 8(aX5) of the Act, we find it unnecessary to pass upon the al- ternative theory (which he characterized as "legally unnecessary" to and make them whole for any loss of earnings decide) which he discussed in pars. 9 and 10 of the section of his Deci- that they may incur, with interest. Striking em- sion entitled "Discussion and conclusions" and in the section entitled "The Strike as of June 24, 1980"- ployees who were premanently replaced or We note that the Administrative Law Judge inadvertently miscited whose jobs Were abolished before June 24, Nelson Filter, a Division of N e lson Industries, Inc . T h e c orre ct c itat io n is 1 9 8 0 , sh a ll be o ff e r e d j o b s w h e n a n d if t h e pre- 255 NLRB 1080 (198 1). Finally, we shall conform the Administrative Law Judge's notice with his recommended Order. 259 NLRB No. 101 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cote Bros. Bakery, Inc. and Local 348, Bakery, except that the attached notice is substituted for Confectionery and Tobacco Workers Interna- that of the Administrative Law Judge. tional Union of America, AFL-CIO. Cases 1- CA-17666 and 1-CA-17762 APPENDIX December 17, 1981 NOTICE To EMPLOYEES DECISION AND ORDER,, P O ST E D BY O R D E R O F T H E NATIONAL LABOR RELATIONS BOARD BY CHAIRMAN VAN DE WATER AND An Agency of the United States Government MEMBERS JENKINS AND HUNTER On July 9, 1981, Administrative Law Judge A ft e r a hearing a t w h ic h a ll si d es h ad a n opportu- Robert W. Leiner issued the attached Decision in nity t o present evidence and state their positions, this proceeding. Thereafter, Respondent filed ex- t h e National Labor Relations Board found that we ceptions and a supporting brief, a motion to reopen have violated the National Labor Relations Act, as the record, and a motion to dismiss. Iamended, and has ordered us to post this notice. Pursuant to the provisions of Section 3(b) of the WE WILL NOT threaten to discharge employ- National Labor Relations Act, as amended, the Na- ees who engaged in a lawful strike by telling tional Labor Relations Board has delegated its au- them that they are "through" if they continue thority in this proceeding to a three-member panel. to engage in the strike. The Board has considered the record and the at- E WILL NOT insist, to the point of bargain- tached Decision in light of the exceptions and brief ing impasse, on nonmandatory subjects of bar- and has decided to affirm the rulings, findings,2 andincluding an amnesty for all our em- conclusions of the Administrative Law Judge and py who ps t o r b the to adopt his recommended Order. Uin s pik tline. Union s picket line. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor in t e r fe re with, restrain, or coerce employees in Relations Act, as amended, the National Labor Re- t h e e x er c is e o f t h e rights guaranteed them in lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge and W E W ILL , upon request, bargain collectively hereby orders that the Respondent, Cote Bros. in good faith with Local 348, Bakery, Confec- Bakery, Inc., Manchester, New Hampshire, its offi- tionery and Tobacco Workers International cers, agents, successors, and assigns, shall take the Union of America, AFL-CIO, in the below- action set forth in the said recommended Order, described unit with respect to wages, hours, and other terms and conditions of employment 'Respondent moves to reopen the record to adduce evidence that its and embody any Understanding reached in a assets have been foreclosed and are being liquidated, and that an involun- , tary bankruptcy petition has been filed against the Company. Inasmuch asSigned agreement: this evidence if established would not in any way affect the findings and \, - o.^ tion rtment, D^-*.-^ result herein, see Sec. 102.48(dXD) of the Board's Rules and Regulations,Bakery Production Department, Porters, Series 8, as amended, and inasmuch as such matters are more appropriate- Plant Maintenance and Shipping Depart- ly handled at the compliance stage of this proceeding, we decline to ments, excluding Executives, office and grant Respondent's motion. For the reasons discussed by the Administra- tive Law Judge in fn. 10 of his Decision, we also deny Respondent's clerical employees, guards, professional em- motion to dismiss. ployees, and supervisors as defined in the I Respondent has implicitly excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established Act. policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant WE WILL, Upon their Unconditional Offer tO evidence convinces us that the resolutions are incorrect. Standard Dry return to work, reinstate the Strikers tO their Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir O jb dsiin f esar n epc- 1951). We have carefully examined the record and rnd d no basis ed jobs, dismissing, if necessary, any replace- versing his findings. ments hired in their place, except where such In agreeing with the Administrative Law Judge that Respondent vio- replacements Occurred before June 24, 1980, lated Sec. 8(aX5) of the Act, we find it unnecessary to pass upon the al- ternative theory (which he characterized as "legally unnecessary" to and make them whole for any loss of earnings decide) which he discussed in pars. 9 and 10 of the section of his Deci- that they may incur, with interest. Striking em- sion entitled "Discussion and conclusions" and in the section entitled "The Strike as of June 24, 1980"- ployees who were premanently replaced or We note that the Administrative Law Judge inadvertently miscited whose jobs Were abolished before June 24, Nelson Filter, a Division of N e lson Industries, Inc . T h e c orre ct c itat io n is 1 9 8 0 , sh a ll be o ff e r e d j o b s w h e n a n d if t h e pre- 255 NLRB 1080 (198 1). Finally, we shall conform the Administrative Law Judge's notice with his recommended Order. 259 NLRB No. 101 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cote Bros. Bakery, Inc. and Local 348, Bakery, except that the attached notice is substituted for Confectionery and Tobacco Workers Interna- that of the Administrative Law Judge. tional Union of America, AFL-CIO. Cases 1- CA-17666 and 1-CA-17762 APPENDIX December 17, 1981 NOTICE To EMPLOYEES DECISION AND ORDER,, P O ST E D BY O R D E R O F T H E NATIONAL LABOR RELATIONS BOARD BY CHAIRMAN VAN DE WATER AND An Agency of the United States Government MEMBERS JENKINS AND HUNTER On July 9, 1981, Administrative Law Judge A ft e r a hearing a t w h ic h a ll si d es h ad a n opportu- Robert W. Leiner issued the attached Decision in nity t o present evidence and state their positions, this proceeding. Thereafter, Respondent filed ex- t h e National Labor Relations Board found that we ceptions and a supporting brief, a motion to reopen have violated the National Labor Relations Act, as the record, and a motion to dismiss. Iamended, and has ordered us to post this notice. Pursuant to the provisions of Section 3(b) of the WE WILL NOT threaten to discharge employ- National Labor Relations Act, as amended, the Na- ees who engaged in a lawful strike by telling tional Labor Relations Board has delegated its au- them that they are "through" if they continue thority in this proceeding to a three-member panel. to engage in the strike. The Board has considered the record and the at- E WILL NOT insist, to the point of bargain- tached Decision in light of the exceptions and brief ing impasse, on nonmandatory subjects of bar- and has decided to affirm the rulings, findings,2 andincluding an amnesty for all our em- conclusions of the Administrative Law Judge and py who ps t o r b the to adopt his recommended Order. Uin s pik tline. Union s picket line. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor in t e r fe re with, restrain, or coerce employees in Relations Act, as amended, the National Labor Re- t h e e x er c is e o f t h e rights guaranteed them in lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge and W E W ILL , upon request, bargain collectively hereby orders that the Respondent, Cote Bros. in good faith with Local 348, Bakery, Confec- Bakery, Inc., Manchester, New Hampshire, its offi- tionery and Tobacco Workers International cers, agents, successors, and assigns, shall take the Union of America, AFL-CIO, in the below- action set forth in the said recommended Order, described unit with respect to wages, hours, and other terms and conditions of employment 'Respondent moves to reopen the record to adduce evidence that its and embody any Understanding reached in a assets have been foreclosed and are being liquidated, and that an involun- , tary bankruptcy petition has been filed against the Company. Inasmuch asSigned agreement: this evidence if established would not in any way affect the findings and \, - o.^ tion rtment, D^-*.-^ result herein, see Sec. 102.48(dXD) of the Board's Rules and Regulations,Bakery Production Department, Porters, Series 8, as amended, and inasmuch as such matters are more appropriate- Plant Maintenance and Shipping Depart- ly handled at the compliance stage of this proceeding, we decline to ments, excluding Executives, office and grant Respondent's motion. For the reasons discussed by the Administra- tive Law Judge in fn. 10 of his Decision, we also deny Respondent's clerical employees, guards, professional em- motion to dismiss. ployees, and supervisors as defined in the I Respondent has implicitly excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established Act. policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant WE WILL, Upon their Unconditional Offer tO evidence convinces us that the resolutions are incorrect. Standard Dry return to work, reinstate the Strikers tO their Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir O jb dsiin f esar n epc- 1951). We have carefully examined the record and rnd d no basis ed jobs, dismissing, if necessary, any replace- versing his findings. ments hired in their place, except where such In agreeing with the Administrative Law Judge that Respondent vio- replacements Occurred before June 24, 1980, lated Sec. 8(aX5) of the Act, we find it unnecessary to pass upon the al- ternative theory (which he characterized as "legally unnecessary" to and make them whole for any loss of earnings decide) which he discussed in pars. 9 and 10 of the section of his Deci- that they may incur, with interest. Striking em- sion entitled "Discussion and conclusions" and in the section entitled "The Strike as of June 24, 1980"- ployees who were premanently replaced or We note that the Administrative Law Judge inadvertently miscited whose jobs Were abolished before June 24, Nelson Filter, a Division of N e lson Industries, Inc . T h e c orre ct c itat io n is 1 9 8 0 , sh a ll be o ff e r e d j o b s w h e n a n d if t h e pre- 255 NLRB 1080 (198 1). Finally, we shall conform the Administrative Law Judge's notice with his recommended Order. 259 NLRB No. 101 COTE BROS. BAKERY, INC. 777 manent replacements leave, or when positions from points located outside the State of New Hampshire. become available for which they are qualified. Respondent, at all material times, has been, and is, an employer engaged in commerce within the meaning of COTE BROS. BAKERY, INC. Section 2(2), (6), and (7) of the Act. DECISION II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find STATEMENT OF THE CASE that Local 348, Bakery, Confectionery and Tobacco ROBERT W. LEINER, Administrative Law Judge: The Workers International Union of America, AFL-CIO, is a charge in Case l-CA-17666 was filed and served on July labor organization within the meaning of Section 2(5) of 15, 1980, by Local 348, Bakery, Confectionery and To- the Act. bacco Workers International Union of America, AFL- CIO, herein called the Union or Local 348, upon CoteII. THE ALLEGED UNFAIR LABOR PRACTICES Bros. Bakery, Inc., herein called Respondent. The charge . Bckground in Case 1-CA-17762 was filed and served by the Union on August 19, 1980, on Respondent. The Regional Di- At the hearing, the General Counsel and Respondent rector for Region 1 of the National Labor Relations substantially amended their respective pleadings: The Board, herein called the Board, acting for and on behalf General Counsel withdrew various allegations of inde- of the Board's General Counsel, issued a complaint and pendent violations of Section 8(a)(l) of the Act. Re- notice of hearing on October 15, 1980. Pursuant to the spondent admitted that it and the Union were parties to a second charge herein, the aforesaid Regional Director, collective-bargaining agreement effective from May 4, on January 25, 1981, issued an order consolidating cases 1977, through May 7, 1979, encompassing the following and amended complaint and notice of hearing. Respond- unit: ent filed timely answers to both the original and the amended complaint on October 23, 1980, and January 15, Bakery Production Department, Porters, Plant 1981, respectively. The consolidated amended complaint, Maintenance and Shipping Departments, excluding herein referred to as the complaint, alleges that Respond- Executives, office and clerical employees, guards, ent violated Section 8(a)(l) and (5) of the National Labor professional employees and supervisors as defined in Relations Act, as amended, by virtue of various alleged the Act. threats to employees on June 10 and 11, 1980, after the commencement of a strike and by virtue of a refusal to Respondent, in addition, also admitted that the above bargain by Respondent as shown by certain acts it com- unit is one appropriate for the purposes of collective bar- mitted during collective-bargaining negotiations occur- gaining within the meaning of Section 9(b) of the Act, ring on June 24, 1980. The complaint, as modified at the and that since onor about 1951 the Union has been the hearing, also alleges that the strike, which commenced designated exclusive collective-bargaining representative on or about June 10, 1980, was converted into an unfair of Respondent's employees in the above unit' and had labor practice strike on or about June 24, 1980. In its an- been recognized as such by Respondent for purposes of swers Respondent admits various allegations of the com- Section 9(b) of the Act until on or about June 30, 1980. plaint but denies the commission of any unfair labor The parties agree that the Union engaged in an eco- practices. nomic strike commencing at or about noon, June 10, Pursuant to notice, a hearing was held on the issues 1980, but the General Counsel alleges, and Respondent raised by the pleadings in Boston, Massachusetts, on May denies, that the strike became an unfair labor practice 13 and 14, 1981. After close of receipt of the evidence, strke on June 24, 1980. There is no dispute that the the parties waived oral argument and thereafter filed strike continued through the time of the hearing herein. timely briefs which have been duly considered. It is admitted by the General Counsel that Cote Bros. Upon the entire record in this case, including the Bakery has been in substantial financial difficulty at least briefs, and upon my observation of the witnesses as they since 1979. At all material times from the end of 1979 testified, I hereby make the following: until June 1980, Respondent maintained an $800,000 debt to the Indian Head Bank, Nashua, New Hampshire, FINDINGS OF FACT herein called the Bank. By June 1980, Respondent had defaulted on repaying this loan and was insolvent in 1. JURISDICTION excess of $323,000. Furthermore, for at least 6 months The complaint alleges, Respondent admits, and I find prior to June 1980, Respondent had defaulted on its obli- The complaint all eges, Respondent adm New Hampshire gation to pay contributions to the Union's pension fund that, at all material times, Respondent, a New Hampshire collective-bargaining agreement (G.C. corporation, maintained its office and principal place of under an expired collectivebargaining agreement (G.C. business at 87 Elm Street, Manchester, New Hampshire, Ex. expied My , 1 , whih agreeent hits exp where it has been, and is now, engaged in the manufac orally extended by the parties subsequent to its expira- where it has been, and is now, engaged in the manufac- tion. Lastly Respondent had been in default of paying ture, sale, and distribution of bread and rolls, annually shipping products valued in excess of $50,000 directly to The actual collective-bargaining representative prior to June 1, 1979, points outside the State of New Hampshire, and annually was another local of the same International. On June 1, 1979, that local receiving products valued in excess of $50,000 directly was merged into Local 348. COTE BROS. BAKERY, INC. 777 manent replacements leave, or when positions from points located outside the State of New Hampshire. become available for which they are qualified. Respondent, at all material times, has been, and is, an employer engaged in commerce within the meaning of COTE BROS. BAKERY, INC. Se c ti o n 2(2), (6 ), an d (7 ) o f t h e A c t . DECISION 111 T H E L A B O R ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find STATEMENT OF THE CASE that Local 348, Bakery, Confectionery and Tobacco ROBERT W. LEINER, Administrative Law Judge: The Workers International Union of America, AFL-CIO, is a charge in Case l-CA-17666 was filed and served on July labor organization within the meaning of Section 2(5) of 15, 1980, by Local 348, Bakery, Confectionery and To- t h e A c t . bacco Workers International Union of America, AFL- CIO, herein called the Union or Local 348, upon Cote I IL T H E A^EGED UNFAIR LABOR PRACTICES Bros. Bakery, Inc., herein called Respondent. The charge A. Background in Case 1-CA-17762 was filed and served by the Union on August 19, 1980, on Respondent. The Regional Di- At the hearing, the General Counsel and Respondent rector for Region 1 of the National Labor Relations substantially amended their respective pleadings: The Board, herein called the Board, acting for and on behalf General Counsel withdrew various allegations of inde- of the Board's General Counsel, issued a complaint and pendent violations of Section 8(a)(l) of the Act. Re- notice of hearing on October 15, 1980. Pursuant to the spondent admitted that it and the Union were parties to a second charge herein, the aforesaid Regional Director, collective-bargaining agreement effective from May 4, on January 25, 1981, issued an order consolidating cases 1977, through May 7, 1979, encompassing the following and amended complaint and notice of hearing. Respond- unit: ent filed timely answers to both the original and the amended complaint on October 23, 1980, and January 15, Bakery Production Department, Porters, Plant 1981, respectively. The consolidated amended complaint, Maintenance and Shipping Departments, excluding herein referred to as the complaint, alleges that Respond- Executives, office and clerical employees, guards, ent violated Section 8(a)(l) and (5) of the National Labor professional employees and supervisors as defined in Relations Act, as amended, by virtue of various alleged the Act. threats to employees on June 10 and 11, 1980, after the commencement of a strike and by virtue of a refusal to Respondent, in addition, also admitted that the above bargain by Respondent as shown by certain acts it com- u n it is one appropriate for the purposes of collective bar- mitted during collective-bargaining negotiations occur- gaining within the meaning of Section 9(b) of the Act, ring on June 24, 1980. The complaint, as modified at the an d t h at sinc e o n o r ab o u t 19 5 1 t h e U nio n ha s be en t h e hearing, also alleges that the strike, which commenced designated exclusive collective-bargaining representative on or about June 10, 1980, was converted into an unfair o f Respondent's employees in the above unit' and had labor practice strike on or about June 24, 1980. In its an- be en recognized as such by Respondent for purposes of swers Respondent admits various allegations of the com- Se c t io n 9(b) o f th e A c t u n t il o n o r a b o u t J u n e 3 0 , 1 9 80. plaint but denies the commission of any unfair labor Th e Parties agree that the Union engaged in an eco- practices. nomic strike commencing at or about noon, June 10, Pursuant to notice, a hearing was held on the issues 19 80 , bu t t h e G ener al C o u ns el alleges, a nd Respondent raised by the pleadings in Boston, Massachusetts, on May d en ie s, th at t h e st r ik e b ec a m e an un f a ir lab o r practice 13 and 14. 1981. After close of receipt of the evidence, st rik e on J un e 24, 19 80. T h e r e is no dispute t h at t h e the parties waived oral argument and thereafter filed st r i k e continued through the time of the hearing herein. timely briefs which have been duly considered. It is admitted by the General Counsel that Cote Bros. Upon the entire record in this case, including the Bakery has been in substantial financial difficulty at least briefs, and upon my observation of the witnesses as they si nc e 19 79 . A t all material times from the end of 1979 testified, I hereby make the following: u n til J u ne 19 80 , Respondent maintained an $800,000 debt to the Indian Head Bank, Nashua, New Hampshire, FINDINGS OF FACT herein called the Bank. By June 1980, Respondent had defaulted on repaying this loan and was insolvent in I. JURISDICTION excess of $323,000. Furthermore, for at least 6 months The complaint alleges, Respondent admits, and I find prior to June 1980, Respondent had defaulted on its obli- The complaint alleges, Respondent admits, and I find gation to pay contributions to the Union's pension fund that, at all material times, Respondent, a New Hampshire ^ une anepie collective-bargaining agreement (G.C. corporation, maintained its office and principal place of under a expired col le ctveba rginn agreement had been business at 87 Elm Street, Manchester, New Hampshire, E, r 7, 17) w agreement had een wher ithasbee, an isnow enagedin he anuac- orally extended by the parties subsequent to its expira- where it has been, and is now, engaged in the manufac- to.Laty Respondent had been in default of paying ture, sale, and distribution of bread and rolls, annually t l pau a Shipping products valued in excess Of $50,000 directly to IThe actual collective-bargaining representative prior to June 1, 1979, points outside the State of New Hampshire, and annually was another local of the same International. On June 1, 1979, that local receiving products valued in excess of $50,000 directly was merged into Local 348. COTE BROS. BAKERY, INC. 777 manent replacements leave, or when positions from points located outside the State of New Hampshire. become available for which they are qualified. Respondent, at all material times, has been, and is, an employer engaged in commerce within the meaning of COTE BROS. BAKERY, INC. Se c ti o n 2(2), (6 ), an d (7 ) o f t h e A c t . DECISION 111 T H E LA BO R ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find STATEMENT OF THE CASE that Local 348, Bakery, Confectionery and Tobacco ROBERT W. LEINER, Administrative Law Judge: The Workers International Union of America, AFL-CIO, is a charge in Case l-CA-17666 was filed and served on July labor organization within the meaning of Section 2(5) of 15, 1980, by Local 348, Bakery, Confectionery and To- t h e A c t . bacco Workers International Union of America, AFL- CIO, herein called the Union or Local 348, upon Cote I IL T H E ^LEGED UNFAIR LABOR PRACTICES Bros. Bakery, Inc., herein called Respondent. The charge A. Background in Case 1-CA-17762 was filed and served by the Union on August 19, 1980, on Respondent. The Regional Di- At the hearing, the General Counsel and Respondent rector for Region 1 of the National Labor Relations substantially amended their respective pleadings: The Board, herein called the Board, acting for and on behalf General Counsel withdrew various allegations of inde- of the Board's General Counsel, issued a complaint and pendent violations of Section 8(a)(l) of the Act. Re- notice of hearing on October 15, 1980. Pursuant to the spondent admitted that it and the Union were parties to a second charge herein, the aforesaid Regional Director, collective-bargaining agreement effective from May 4, on January 25, 1981, issued an order consolidating cases 1977, through May 7, 1979, encompassing the following and amended complaint and notice of hearing. Respond- unit: ent filed timely answers to both the original and the amended complaint on October 23, 1980, and January 15, Bakery Production Department, Porters, Plant 1981, respectively. The consolidated amended complaint, Maintenance and Shipping Departments, excluding herein referred to as the complaint, alleges that Respond- Executives, office and clerical employees, guards, ent violated Section 8(a)(l) and (5) of the National Labor professional employees and supervisors as defined in Relations Act, as amended, by virtue of various alleged the Act. threats to employees on June 10 and 11, 1980, after the commencement of a strike and by virtue of a refusal to Respondent, in addition, also admitted that the above bargain by Respondent as shown by certain acts it com- u n it is one appropriate for the purposes of collective bar- mitted during collective-bargaining negotiations occur- gaining within the meaning of Section 9(b) of the Act, ring on June 24, 1980. The complaint, as modified at the an d t h at sinc e o n o r ab o u t 19 5 1 t h e U nio n ha s be en t h e hearing, also alleges that the strike, which commenced designated exclusive collective-bargaining representative on or about June 10, 1980, was converted into an unfair o f Respondent's employees in the above unit' and had labor practice strike on or about June 24, 1980. In its an- be en recognized as such by Respondent for purposes of swers Respondent admits various allegations of the com- Se c t io n 9(b) o f th e A c t u n t il o n o r a b o u t J u n e 3 0 , 1 9 80. plaint but denies the commission of any unfair labor Th e Parties agree that the Union engaged in an eco- practices. nomic strike commencing at or about noon, June 10, Pursuant to notice, a hearing was held on the issues 19 80 , bu t t h e G ener al C o u ns el alleges, a nd Respondent raised by the pleadings in Boston, Massachusetts, on May d en ie s, th at t h e st r ik e b ec a m e an un f a ir lab o r practice 13 and 14. 1981. After close of receipt of the evidence, st rik e on J un e 24, 19 80. T h e r e is no dispute t h at t h e the parties waived oral argument and thereafter filed st r i k e continued through the time of the hearing herein. timely briefs which have been duly considered. It is admitted by the General Counsel that Cote Bros. Upon the entire record in this case, including the Bakery has been in substantial financial difficulty at least briefs, and upon my observation of the witnesses as they si nc e 19 79 . A t all material times from the end of 1979 testified, I hereby make the following: u n til J u ne 19 80 , Respondent maintained an $800,000 debt to the Indian Head Bank, Nashua, New Hampshire, FINDINGS OF FACT herein called the Bank. By June 1980, Respondent had defaulted on repaying this loan and was insolvent in I. JURISDICTION excess of $323,000. Furthermore, for at least 6 months The complaint alleges, Respondent admits, and I find prior to June 1980, Respondent had defaulted on its obli- The complaint alleges, Respondent admits, and I find gation to pay contributions to the Union's pension fund that, at all material times, Respondent, a New Hampshire ^ une anepie collective-bargaining agreement (G.C. corporation, maintained its office and principal place of under a expired col le ctveba rginn agreement had been business at 87 Elm Street, Manchester, New Hampshire, E, r 7, 17) w agreement had een wher ithasbee, an isnow enagedin he anuac- orally extended by the parties subsequent to its expira- where it has been, and is now, engaged in the manufac- to.Laty Respondent had been in default of paying ture, sale, and distribution of bread and rolls, annually t l pau a Shipping products valued in excess Of $50,000 directly to IThe actual collective-bargaining representative prior to June 1, 1979, points outside the State of New Hampshire, and annually was another local of the same International. On June 1, 1979, that local receiving products valued in excess of $50,000 directly was merged into Local 348. COTE BROS. BAKERY, INC. 777 manent replacements leave, or when positions from points located outside the State of New Hampshire. become available for which they are qualified. Respondent, at all material times, has been, and is, an employer engaged in commerce within the meaning of COTE BROS. BAKERY, INC. Se c ti o n 2(2), (6 ), an d (7) o f t h e A c t . DECISION 111 T H E LA BO R ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find STATEMENT OF THE CASE that Local 348, Bakery, Confectionery and Tobacco ROBERT W. LEINER, Administrative Law Judge: The Workers International Union of America, AFL-CIO, is a charge in Case l-CA-17666 was filed and served on July labor organization within the meaning of Section 2(5) of 15, 1980, by Local 348, Bakery, Confectionery and To- t h e A c t . bacco Workers International Union of America, AFL- CIO, herein called the Union or Local 348, upon Cote I IL T H E ^LEGED UNFAIR LABOR PRACTICES Bros. Bakery, Inc., herein called Respondent. The charge A. Background in Case 1-CA-17762 was filed and served by the Union on August 19, 1980, on Respondent. The Regional Di- At the hearing, the General Counsel and Respondent rector for Region 1 of the National Labor Relations substantially amended their respective pleadings: The Board, herein called the Board, acting for and on behalf General Counsel withdrew various allegations of inde- of the Board's General Counsel, issued a complaint and pendent violations of Section 8(a)(l) of the Act. Re- notice of hearing on October 15, 1980. Pursuant to the spondent admitted that it and the Union were parties to a second charge herein, the aforesaid Regional Director, collective-bargaining agreement effective from May 4, on January 25, 1981, issued an order consolidating cases 1977, through May 7, 1979, encompassing the following and amended complaint and notice of hearing. Respond- unit: ent filed timely answers to both the original and the amended complaint on October 23, 1980, and January 15, Bakery Production Department, Porters, Plant 1981, respectively. The consolidated amended complaint, Maintenance and Shipping Departments, excluding herein referred to as the complaint, alleges that Respond- Executives, office and clerical employees, guards, ent violated Section 8(a)(l) and (5) of the National Labor professional employees and supervisors as defined in Relations Act, as amended, by virtue of various alleged the Act. threats to employees on June 10 and 11, 1980, after the commencement of a strike and by virtue of a refusal to Respondent, in addition, also admitted that the above bargain by Respondent as shown by certain acts it com- u n it is one appropriate for the purposes of collective bar- mitted during collective-bargaining negotiations occur- gaining within the meaning of Section 9(b) of the Act, ring on June 24, 1980. The complaint, as modified at the an d t h at sinc e o n o r ab o u t 19 5 1 t h e U nio n ha s be en t h e hearing, also alleges that the strike, which commenced designated exclusive collective-bargaining representative on or about June 10, 1980, was converted into an unfair o f Respondent's employees in the above unit' and had labor practice strike on or about June 24, 1980. In its an- be en recognized as such by Respondent for purposes of swers Respondent admits various allegations of the com- Section 9(b) of the Act until on or about June 30, 1980. plaint but denies the commission of any unfair labor Th e Parties agree that the Union engaged in an eco- practices. nomic strike commencing at or about noon, June 10, Pursuant to notice, a hearing was held on the issues 19 80 , bu t t h e General C o u ns el alleges, a nd Respondent raised by the pleadings in Boston, Massachusetts, on May d en ie s, th at t h e st r ik e b ec a m e an un f a ir lab o r practice 13 and 14. 1981. After close of receipt of the evidence, st rik e on J un e 24, 19 80. T h e r e is no dispute t h at t h e the parties waived oral argument and thereafter filed st r i k e continued through the time of the hearing herein. timely briefs which have been duly considered. It is admitted by the General Counsel that Cote Bros. Upon the entire record in this case, including the Bakery has been in substantial financial difficulty at least briefs, and upon my observation of the witnesses as they si nc e 19 79 . A t all material times from the end of 1979 testified, I hereby make the following: u n til J u ne 19 80 , Respondent maintained an $800,000 debt to the Indian Head Bank, Nashua, New Hampshire, FINDINGS OF FACT herein called the Bank. By June 1980, Respondent had defaulted on repaying this loan and was insolvent in I. JURISDICTION excess of $323,000. Furthermore, for at least 6 months The complaint alleges, Respondent admits, and I find prior to June 1980, Respondent had defaulted on its obli- The complaint alleges, Respondent admits, and I find gation to pay contributions to the Union's pension fund that, at all material times, Respondent, a New Hampshire ^ une anepie collective-bargaining agreement (G.C. corporation, maintained its office and principal place of under a expired col le ctveba rginn agreement had been business at 87 Elm Street, Manchester, New Hampshire, E, r 7, 17) w agreement had een wher ithasbee, an isnow enagedin he anuac- orally extended by the parties subsequent to its expira- where .t has been, and is now, engaged in the manufac- to.Laty Respondent had been in default of paying ture, sale, and distribution of bread and rolls, annually t l pau a Shipping products valued in excess Of $50,000 directly to IThe actual collective-bargaining representative prior to June 1, 1979, points outside the State of New Hampshire, and annually was another local of the same International. On June 1, 1979, that local receiving products valued in excess of $50,000 directly was merged into Local 348. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the interest on its bank debt for at least that same 6- call from Respondent's attorney, he acceded to the re- month period. Negotiations regarding a new collective- quest not to do so for at least 1 day. bargaining agreement occurred from time to time since Louis Murray testified that he agreed with his attorney expiration of the old agreement. (Horton) and the other bank official (O'Brian) that there By April 1979, the Bank had employed a financial con- would be no negotiations by the Bank with any union sultant, Charles R. Hefford, to review and evaluate Re- people and no involvement in Respondent's union affairs. spondent's financial condition and prospects. In a report Their only function was to demonstrate Respondent's un- to the Bank (not presented at this hearing), Hefford ad- happy financial position to the Union. Thus, at their re- vised the Bank that, notwithstanding Respondent's de- quest, Ullrich went to the picket line and returned with faults, it need not at that time take over Respondent's several union business agents and officers, including assets (apparently pursuant to its right as a creditor) and McLellan and Local 348 Business Manager David that Respondent could continue as a viable business pro- Murray, as well as several picketing employees. Ullrich vided various internal changes and economies were insti- left them. With the union business agents as well as the tuted. Thereafter, Hefford became a financial consultant striking employees standing in Respondent's loading to Respondent. 2 area, a conversation ensued between the parties. Local Sometime no later than May 1980, in bargaining with 348 Business Manager David Murray testified that Bank Respondent, the Union demanded an economic package Vice President Louis Murray said that if a strike contin- which consisted of a 92-1/2-cent-per-hour increase. The ued for 2 days Respondent would "fold." He said that Bank authorized Respondent to offer no higher than a Bank Official O'Brian added that the Bank had given Re- total of 30 cents per hour: 17-1/2 cents per hour for spondent the 30-cent-per-hour economic package and, if maintenance of existing benefits; and a 12-1/2-cent-per- the Union did not believe Respondent's financial condi- hour wage increase. Respondent made this cnunteroffer tion, the Union could inspect the books. David Murray in May 1980. said that he answered that the Union knew of Respond- In support of its continued claim of financial inability ent's financial problems; the Union had given Respond- to pay higher wages, it is undisputed that as early as Oc- ent a I-year extension without increases and believed tober 1979 Respondent offered, and the Union agreed, to that they already had an agreement for a zero increase have the Union inspect its books and records. The Union for the first year of a new contract and 75 cents per hour did so on or about October 3, 1979. I further find that, at for the second year. O'Brian then allegedly answered all material times thereafter, Respondent has offered to that the Bank had told Respondent that it could offer prove its continued financial inability to pay greater eco- only 30 cents per hour and was telling the Union the nomic increases. same thing. The Union said that the strike would contin- On June 10, 1980, the parties held a collective-bargain- ue. ing session in which the Union demanded 92-1/2 cents Frank Volpe, a Local 348 business agent, testified that per hour as a total economic package. Respondent of- the bank officials not only said that Respondent would fered 30 cents per hour and offered to prove, again, its have greater financial problems if the strike continued, inability to make a more fruitful economic offer. The but the Bank would foreclose its loans to Respondent Union nevertheless insisted on its demand of 92-1/2 cents and sell Respondent's equipment and everybody would per hour and engaged in an economic strike commencing lose their jobs. at or about noon on that day. At noon, a picket line was Louis Murray, who on June 10 caused O'Brian, to authorized by the Union's officials, including Kenneth serve Respondent with a demand for payment of the de- McLellan, an International vice president of the Union. faulted loan, testified that he told the union officials and At the start of the June 10 strike, Bruce Ullrich, gener- the employees that the Bank was there not to negotiate al manager of Respondent, telephoned Louis Murray, a or get involved between the parties but merely as an in- senior vice president and chief loan officer of the Bank, dependent third party; that the Bank's interest concerned for help and counsel. He told Murray that the Union ap- whether to foreclose its loan and liquidate Respondent's parently did not believe Respondent's poor financial po- business; that Respondent was $361,000 into insolvency; sition and that perhaps Murray and the Bank could con- that any slowdown of revenue coming in could have a vince the Union that Respondent was unable to pay fatal impact on the Company"; and that the Union more. should "draw its own conclusions as to what would Within a half hour, Murray, together with the Bank's happen with the continuation of the strike" He denied attorney and another bank official, arrived at Respond- telling them that a continuation of the strike would force ent's bakery, met with Ullrich and asked Ullrich what Respondent to close or even mentioning 30 cents per they could do. They decided that the Bank, as a "neutral hour or anything with regard to negotiations. He testi- third party," should speak to the Union's officials in the fed that he told the employees and union officials only absence of Ullrich (or any other of Respondent's supervi- that he was there as a third party giving the Bank's point sors) and denonstrate to them Respondent's financial dif- of view with regard to Respondent's financial condition. ficulties. Murray also credibly testified that, at that time, he considered it to be a prudent act, in protecting the B. Louis Murray's Statements as Alleged Violations of Bank's interest, to activate the legal machinery to take Section 8(a)(1) over Respondent's assets but, pursuant to a telephone Ihinseothr____indagnto__tebnkThe complaint alleges that Respondent, by the Bank's 2There is no suggestion that he remained an agent of the bank officials as its agents, told the employees that the Bank 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the interest on its bank debt for at least that same 6- call from Respondent's attorney, he acceded to the re- month period. Negotiations regarding a new collective- quest not to do so for at least 1 day. bargaining agreement occurred from time to time since Louis Murray testified that he agreed with his attorney expiration of the old agreement. (Horton) and the other bank official (O'Brian) that there By April 1979, the Bank had employed a financial con- would be no negotiations by the Bank with any union sultant, Charles R. Hefford, to review and evaluate Re- people and no involvement in Respondent's union affairs. spondent's financial condition and prospects. In a report Their only function was to demonstrate Respondent's un- to the Bank (not presented at this hearing), Hefford ad- happy financial position to the Union. Thus, at their re- vised the Bank that, notwithstanding Respondent's de- quest, Ullrich went to the picket line and returned with faults, it need not at that time take over Respondent's several union business agents and officers, including assets (apparently pursuant to its right as a creditor) and McLellan and Local 348 Business Manager David that Respondent could continue as a viable business pro- Murray, as well as several picketing employees. Ullrich vided various internal changes and economies were insti- left them. With the union business agents as well as the tuted. Thereafter, Hefford became a financial consultant striking employees standing in Respondent's loading to Respondent. Iarea, a conversation ensued between the parties. Local Sometime no later than May 1980, in bargaining with 348 Business Manager David Murray testified that Bank Respondent, the Union demanded an economic package Vice President Louis Murray said that if a strike contin- which consisted of a 92-1/2-cent-per-hour increase. The ued for 2 days Respondent would "fold." He said that Bank authorized Respondent to offer no higher than a Bank Official O'Brian added that the Bank had given Re- total of 30 cents per hour: 17-1/2 cents per hour for spondent the 30-cent-per-hour economic package and, if maintenance of existing benefits; and a 12-1/2-cent-per- the Union did not believe Respondent's financial condi- hour wage increase. Respondent made this cnunteroffer tion, the Union could inspect the books. David Murray in May 1980. said that he answered that the Union knew of Respond- In support of its continued claim of financial inability ent's financial problems; the Union had given Respond- to pay higher wages, it is undisputed that as early as Oc- ent a 1-year extension without increases and believed tober 1979 Respondent offered, and the Union agreed, to that they already had an agreement for a zero increase have the Union inspect its books and records. The Union for the first year of a new contract and 75 cents per hour did so on or about October 3, 1979. I further find that, at for the second year. O'Brian then allegedly answered all material times thereafter, Respondent has offered to that the Bank had told Respondent that it could offer prove its continued financial inability to pay greater eco- only 30 cents per hour and was telling the Union the nomic increases. same thing. The Union said that the strike would contin- On June 10, 1980, the parties held a collective-bargain- ue ing session in which the Union demanded 92-1/2 cents Frank Volpe, a Local 348 business agent, testified that per hour as a total economic package. Respondent of- the bank officials not only said that Respondent would fered 30 cents per hour and offered to prove, again, its have greater financial problems if the strike continued, inability to make a more fruitful economic offer. The but the Bank would foreclose its loans to Respondent Union nevertheless insisted on its demand of 92-1/2 cents a Respondent's equipment and everybody would per hour and engaged in an economic strike commencing lose their jobs. at or about noon on that day. At noon, a picket line was Louis Murray, who on June 10 caused O'Brian, to authorized by the Union's officials, including Kenneth serve Respondent with a demand for payment of the de- McLellan, an International vice president of the Union. faulted loan, testified that he told the union officials and At the start of the June 10 strike, Bruce Ullrich, gener- t employees that the Bank was there not to negotiate al manager of Respondent, telephoned Louis Murray, a or ge i b t pt b m s senior vice president and chief loan officer of the Bank, dependent third party; that the Bank's interest concerned for help and counsel. He told Murray that the Union ap- whether to foreclose its loan and liquidate Respondent's parently did not believe Respondent's poor financial po- business; that Respondent was $361,000 into insolvency; sition and that perhaps Murray and the Bank could con- ta ,yl own of revenue coming in could have a vince the Union that Respondent was unable to pay fatal impact on the Company"; and that the Union m o r e . I should "draw its own conclusions as to what would Within a half hour, Murray, together with the Bank s happen with the continuation of the strike." He denied attorney and another bank official, arrived at Respond- t t t continuation of the strike would force ent's bakery, met with Ullrich and asked Ullrich what Respondent to close or even mentioning 30 cents per they could do. They decided that the Bank, as a "neutral hour or anything with regard to negotiations. He testi- third party," should speak to the Union's officials in the f t h l employees and union officials only absence of Ullrich (or any other of Respondent's supervi- that he was there as a third party giving the Bank's point sors) and denonstrate to them Respondent's financial dif- of view with regard to Respondent's financial condition. ficulties. Murray also credibly testified that, at that time, he considered it to be a prudent act, in protecting the B. Louis Murray's Statements as Alleged Violations of Bank's interest, to activate the legal machinery to take Section 8(a)(1) over Respondent's assets but, pursuant to a telephone I There is no sggestion that e remained an aent of the banThe complaint alleges that Respondent, by the Bank's 2There is no suggestion that he remained an agent of the bank officials as its agents, told the employees that the Bank 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the interest on its bank debt for at least that same 6- call from Respondent's attorney, he acceded to the re- month period. Negotiations regarding a new collective- quest not to do so for at least 1 day. bargaining agreement occurred from time to time since Louis Murray testified that he agreed with his attorney expiration of the old agreement. (Horton) and the other bank official (O'Brian) that there By April 1979, the Bank had employed a financial con- would be no negotiations by the Bank with any union sultant, Charles R. Hefford, to review and evaluate Re- people and no involvement in Respondent's union affairs. spondent's financial condition and prospects. In a report Their only function was to demonstrate Respondent's un- to the Bank (not presented at this hearing), Hefford ad- happy financial position to the Union. Thus, at their re- vised the Bank that, notwithstanding Respondent's de- quest, Ullrich went to the picket line and returned with faults, it need not at that time take over Respondent's several union business agents and officers, including assets (apparently pursuant to its right as a creditor) and McLellan and Local 348 Business Manager David that Respondent could continue as a viable business pro- Murray, as well as several picketing employees. Ullrich vided various internal changes and economies were insti- left them. With the union business agents as well as the tuted. Thereafter, Hefford became a financial consultant striking employees standing in Respondent's loading to Respondent. Iarea, a conversation ensued between the parties. Local Sometime no later than May 1980, in bargaining with 348 Business Manager David Murray testified that Bank Respondent, the Union demanded an economic package Vice President Louis Murray said that if a strike contin- which consisted of a 92-1/2-cent-per-hour increase. The ued for 2 days Respondent would "fold." He said that Bank authorized Respondent to offer no higher than a Bank Official O'Brian added that the Bank had given Re- total of 30 cents per hour: 17-1/2 cents per hour for spondent the 30-cent-per-hour economic package and, if maintenance of existing benefits; and a 12-1/2-cent-per- the Union did not believe Respondent's financial condi- hour wage increase. Respondent made this cnunteroffer tion, the Union could inspect the books. David Murray in May 1980. said that he answered that the Union knew of Respond- In support of its continued claim of financial inability ent's financial problems; the Union had given Respond- to pay higher wages, it is undisputed that as early as Oc- ent a 1-year extension without increases and believed tober 1979 Respondent offered, and the Union agreed, to that they already had an agreement for a zero increase have the Union inspect its books and records. The Union for the first year of a new contract and 75 cents per hour did so on or about October 3, 1979. I further find that, at for the second year. O'Brian then allegedly answered all material times thereafter, Respondent has offered to that the Bank had told Respondent that it could offer prove its continued financial inability to pay greater eco- only 30 cents per hour and was telling the Union the nomic increases. same thing. The Union said that the strike would contin- On June 10, 1980, the parties held a collective-bargain- ue ing session in which the Union demanded 92-1/2 cents Frank Volpe, a Local 348 business agent, testified that per hour as a total economic package. Respondent of- the bank officials not only said that Respondent would fered 30 cents per hour and offered to prove, again, its have greater financial problems if the strike continued, inability to make a more fruitful economic offer. The but the Bank would foreclose its loans to Respondent Union nevertheless insisted on its demand of 92-1/2 cents a Respondent's equipment and everybody would per hour and engaged in an economic strike commencing lose their jobs. at or about noon on that day. At noon, a picket line was Louis Murray, who on June 10 caused O'Brian, to authorized by the Union's officials, including Kenneth serve Respondent with a demand for payment of the de- McLellan, an International vice president of the Union. faulted loan, testified that he told the union officials and At the start of the June 10 strike, Bruce Ullrich, gener- t employees that the Bank was there not to negotiate al manager of Respondent, telephoned Louis Murray, a or ge i b t pt b m s senior vice president and chief loan officer of the Bank, dependent third party; that the Bank's interest concerned for help and counsel. He told Murray that the Union ap- whether to foreclose its loan and liquidate Respondent's parently did not believe Respondent's poor financial po- business; that Respondent was $361,000 into insolvency; sition and that perhaps Murray and the Bank could con- ta " s own of revenue coming in could have a vince the Union that Respondent was unable to pay fatal impact on the Company"; and that the Union m o r e . I should "draw its own conclusions as to what would Within a half hour, Murray, together with the Bank s happen with the continuation of the strike." He denied attorney and another bank official, arrived at Respond- t t t continuation of the strike would force ent's bakery, met with Ullrich and asked Ullrich what Respondent to close or even mentioning 30 cents per they could do. They decided that the Bank, as a "neutral hour or anything with regard to negotiations. He testi- third party," should speak to the Union's officials in the f t h l employees and union officials only absence of Ullrich (or any other of Respondent's supervi- that he was there as a third party giving the Bank's point sors) and denonstrate to them Respondent's financial dif- of view with regard to Respondent's financial condition. ficulties. Murray also credibly testified that, at that time, he considered it to be a prudent act, in protecting the B. Louis Murray's Statements as Alleged Violations of Bank's interest, to activate the legal machinery to take Section 8(a)(1) over Respondent's assets but, pursuant to a telephone I There is no sggestion that e remained an aent of the banThe complaint alleges that Respondent, by the Bank's 2There is no suggestion that he remained an agent of the bank officials as its agents, told the employees that the Bank 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the interest on its bank debt for at least that same 6- call from Respondent's attorney, he acceded to the re- month period. Negotiations regarding a new collective- quest not to do so for at least 1 day. bargaining agreement occurred from time to time since Louis Murray testified that he agreed with his attorney expiration of the old agreement. (Horton) and the other bank official (O'Brian) that there By April 1979, the Bank had employed a financial con- would be no negotiations by the Bank with any union sultant, Charles R. Hefford, to review and evaluate Re- people and no involvement in Respondent's union affairs. spondent's financial condition and prospects. In a report Their only function was to demonstrate Respondent's un- to the Bank (not presented at this hearing), Hefford ad- happy financial position to the Union. Thus, at their re- vised the Bank that, notwithstanding Respondent's de- quest, Ullrich went to the picket line and returned with faults, it need not at that time take over Respondent's several union business agents and officers, including assets (apparently pursuant to its right as a creditor) and McLellan and Local 348 Business Manager David that Respondent could continue as a viable business pro- Murray, as well as several picketing employees. Ullrich vided various internal changes and economies were insti- left them. With the union business agents as well as the tuted. Thereafter, Hefford became a financial consultant striking employees standing in Respondent's loading to Respondent. Iarea, a conversation ensued between the parties. Local Sometime no later than May 1980, in bargaining with 348 Business Manager David Murray testified that Bank Respondent, the Union demanded an economic package Vice President Louis Murray said that if a strike contin- which consisted of a 92-1/2-cent-per-hour increase. The ued for 2 days Respondent would "fold." He said that Bank authorized Respondent to offer no higher than a Bank Official O'Brian added that the Bank had given Re- total of 30 cents per hour: 17-1/2 cents per hour for spondent the 30-cent-per-hour economic package and, if maintenance of existing benefits; and a 12-1/2-cent-per- the Union did not believe Respondent's financial condi- hour wage increase. Respondent made this cnunteroffer tion, the Union could inspect the books. David Murray in May 1980. said that he answered that the Union knew of Respond- In support of its continued claim of financial inability ent's financial problems; the Union had given Respond- to pay higher wages, it is undisputed that as early as Oc- ent a 1-year extension without increases and believed tober 1979 Respondent offered, and the Union agreed, to that they already had an agreement for a zero increase have the Union inspect its books and records. The Union for the first year of a new contract and 75 cents per hour did so on or about October 3, 1979. I further find that, at for the second year. O'Brian then allegedly answered all material times thereafter, Respondent has offered to that the Bank had told Respondent that it could offer prove its continued financial inability to pay greater eco- only 30 cents per hour and was telling the Union the nomic increases. same thing. The Union said that the strike would contin- On June 10, 1980, the parties held a collective-bargain- ue ing session in which the Union demanded 92-1/2 cents Frank Volpe, a Local 348 business agent, testified that per hour as a total economic package. Respondent of- the bank officials not only said that Respondent would fered 30 cents per hour and offered to prove, again, its have greater financial problems if the strike continued, inability to make a more fruitful economic offer. The but the Bank would foreclose its loans to Respondent Union nevertheless insisted on its demand of 92-1/2 cents a Respondent's equipment and everybody would per hour and engaged in an economic strike commencing lose their jobs. at or about noon on that day. At noon, a picket line was Louis Murray, who on June 10 caused O'Brian, to authorized by the Union's officials, including Kenneth serve Respondent with a demand for payment of the de- McLellan, an International vice president of the Union. faulted loan, testified that he told the union officials and At the start of the June 10 strike, Bruce Ullrich, gener- t employees that the Bank was there not to negotiate al manager of Respondent, telephoned Louis Murray, a or ge i b t pt b m s senior vice president and chief loan officer of the Bank, dependent third party; that the Bank's interest concerned for help and counsel. He told Murray that the Union ap- whether to foreclose its loan and liquidate Respondent's parently did not believe Respondent's poor financial po- business; that Respondent was $361,000 into insolvency; sition and that perhaps Murray and the Bank could con- ta " s own of revenue coming in could have a vince the Union that Respondent was unable to pay fatal impact on the Company"; and that the Union m o r e . I should "draw its own conclusions as to what would Within a half hour, Murray, together with the Bank s happen with the continuation of the strike." He denied attorney and another bank official, arrived at Respond- t t t continuation of the strike would force ent's bakery, met with Ullrich and asked Ullrich what Respondent to close or even mentioning 30 cents per they could do. They decided that the Bank, as a "neutral hour or anything with regard to negotiations. He testi- third party," should speak to the Union's officials in the f t h l employees and union officials only absence of Ullrich (or any other of Respondent's supervi- that he was there as a third party giving the Bank's point sors) and denonstrate to them Respondent's financial dif- of view with regard to Respondent's financial condition. ficulties. Murray also credibly testified that, at that time, he considered it to be a prudent act, in protecting the B. Louis Murray's Statements as Alleged Violations of Bank's interest, to activate the legal machinery to take Section 8(a)(1) over Respondent's assets but, pursuant to a telephone I There is no sggestion that e remained an aent of the banThe complaint alleges that Respondent, by the Bank's 2There is no suggestion that he remained an agent of the bank officials as its agents, told the employees that the Bank COTE BROS. BAKERY, INC. 779 would foreclose and the employees would lose their jobs rich approached him and told him that he was trying to if the employees continued to strike. Respondent contests get a shift together for that night to continue to work; this agency status, but no finding on the point is neces- that if Tuthill wanted to come to work he could; but that sary since I dispose of the Bank's action on the merits.3 if the strike continued, the plant would close permanent- The General Counsel did not call McLellan to corrobo- ly. Ullrich denied having any such conversation with rate the testimony of Volpe and David Murray. Similar- Tuthill. I credit Tuthill and discredit Ullrich. I do so on ly, Respondent called neither its attorney (Horton) nor the basis of the specificity of Tuthill's recollection and its agent (O'Brian) to substantiate and corroborate the on the demeanor of the witnesses. I conclude, neverthe- testimony of Louis Murray. less, that Respondent did not violate Section 8(aXl) of I resolve the testimonial conflict between the Bank the Act by telling Tuthill, a striking employee, that Re- and the union officials as follows. I conclude that Louis spondent would close its plant permanently if the em- Murray did tell the assembled union officers and employ- ployees continued to strike. I note that, although eco- ees that continuing the strike would cause Respondent nomic elements were mentioned by Ullrich to Tuthill, such loss of revenue as to cause it to fold, and that the the statement was insulated by the then existing facts, Bank would foreclose the loan, and sell the equipment above stated. I recommend that this allegation be dis- and everybody would lose their jobs if the strike contin- missed ued. That is the meaning of his "draw [your] own con- The only remaining alleged violation of Section 8(a)(1) clusions remark." I also conclude that Louis Murray's is in paragraph 8(b) and involves Respondent's vice and the other bank officials' statements to the union offi- esident, Colette Cote, and a telephone conversation she cials and employees, that a continued strike meant such a had with striking employee John Shea in the evening on loss of revenue as to necessarily cause the Bank to fore- June 11, 1980. According to Shea, Cote telephoned him close, Respondent to go out of business, and the employ- at his home and asked him to return to work and he re- ees to lose their jobs, in the presence of the objective fi- p t p- nancial data known to the Union for at least 6 months, plied that hewould ot doso withoutthe Union's were insulated from any coercive effect as an unlawful proval. To this, Shea testified, Colette Cote said that if were insulated from any coercive effect as an unlawful "threat" within the meaning of the Act. Thus, such state- he did not return that day, "Youre through." ments, in conjunction with Louis Murray's unchallenged Cote could not recall any particular conversation with testimony that, in the Bank's interest, it should have im- John Shea, although she testified that she telephoned 30 mediately taken over and liquidated Respondent's assets of the 60 striking employees in order to have them and that it contemporaneously presented a demand to return to work because, as she told them, the Company Respondent for payment of its defaulted loan (as a legal had decided to operate and was trying to get a shift to- preliminary to taking over Respondent's assets), were gether. Cote testified that she told all 30 employees based on clear and open economic data which demon- whom she telephoned that Respondent was merely strated a reasonable belief on the Bank's part that Re- trying to start a production line and asked them to spondent could not continue in business suffering the an- return. While she could not recall what Shea answered, ticipated economic losses due to the strike. This is legally she denied telling him, or any other employee, that they far different from an attempt, without objective, support- were "through" if they did not return to work. ing economic data, by an employer to coerce employees On the basis of his demeanor and the specificity of his into giving up their right to strike by a threat to go out testimony, together with the particular lack of recollec- of business. The Supreme Court recognized this in tion of Cote regarding her conversation with him, I N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 credit Shea and conclude that, as alleged, Cote told him (1969). Under Gissel, I conclude that Louis Murray's that, if he did not return to work that day, he was statements concerning Respondent's going out of busi- "through"; and that such statement was a threat of dis- ness ("draw [your] own conclusions") in the face of a charge uttered to a striker in violation of Section 8(a)() loss of revenue due to the strike was a "reasonable pre- of the Act. This is far different from an objective prog- diction based on available facts." Gissel, supra at 618. nostication of going out of business. Certainly, there is no evidence of the Bank's insincerity in making these predictions. I therefore recommend that D. The Alleged 8(a)(5) Violations paragraph 8(d), which alleges an independent violation of Section 8(aXl) of the Act by virtue of the bank offi- I. The collective-bargaining session of June 17, 1980 cials' June 10 statements to Respondent's striking em- Following the June 10 bargaining session which result- ployees of a threat to go out of business, be dismissed. ed in the strike of that day, the Federal Mediation and C. Other Alleged 8(a)(1) Violations Conciliation Service called a further meeting for June 17, 1980. The Union's witnesses, particularly David Murray According to the testimony of Scott Tuthill, an em- and Frank Volpe, testified that at Respondent's attor- ployee engaged in the June 10 strike, he met Bruce Ull- ney's (Bennett) request the Union's full committee of em- rich in the bakery parking lot in the afternoon on June ployees and union agents selected and worked principal- 10 while the strike was in progress. He testified that U11- ly through a subcommittee consisting of Volpe, David Murray, and McLellan (succeeded by Joseph Thibodeau 'Were a finding necessary, I would conclude that Respondent used the at meetings after June 17). The testimony is in dispute as bank officials to persuade the Union of Respondent's insolvency and the to whether at this June 17 collective-bargaining session economic consequences of a continued strike Within the scope of such activities, they were Respondent's agents. the parties resolved the question of the Union's accept- COTE BROS. BAKERY, INC. 779 would foreclose and the employees would lose their jobs rich approached him and told him that he was trying to if the employees continued to strike. Respondent contests get a shift together for that night to continue to work; this agency status, but no finding on the point is neces- that if Tuthill wanted to come to work he could; but that sary since I dispose of the Bank's action on the merits. 3 if the strike continued, the plant would close permanent- The General Counsel did not call McLellan to corrobo- ly. Ullrich denied having any such conversation with rate the testimony of Volpe and David Murray. Similar- Tuthill. I credit Tuthill and discredit Ullrich. I do so on ly, Respondent called neither its attorney (Horton) nor the basis of the specificity of Tuthill's recollection and its agent (O'Brian) to substantiate and corroborate the on the demeanor of the witnesses. I conclude, neverthe- testimony of Louis Murray. less, that Respondent did not violate Section 8(aX() of I resolve the testimonial conflict between the Bank the Act by telling Tuthill, a striking employee, that Re- and the union officials as follows. I conclude that Louis spondent would close its plant permanently if the em- Murray did tell the assembled union officers and employ- ployees continued to strike. I note that, although eco- ees that continuing the strike would cause Respondent nomic elements were mentioned by Ullrich to Tuthill, such loss of revenue as to cause it to fold, and that the the statement was insulated by the then existing facts, Bank would foreclose the loan, and sell the equipment above stated. I recommend that this allegation be dis- and everybody would lose their jobs if the strike contin- missed. ued. That is the meaning of his "draw [your] own con- The only remaining alleged violation of Section 8(a)(1) elusions remark." I also conclude that Louis Murray's is in paragraph 8(b) and involves Respondent's vice and the other bank officials' statements to the union offi- esident, Colette Cote, and a telephone conversation she cials and employees, that a continued strike meant such a had with striking employee John Shea in the evening on loss of revenue as to necessarily cause the Bank to fore- , 1 According to Shea, Cote telephoned him close, Respondent to go out of business, and the employ- at his home and asked him to return to work and he re- ees to lose their jobs, in the presence of the objective fi- p ta h wu n d so wh th U a nancial data known to the Union for at least 6 months, plid th at h e w o u l d " o t d o so w l h o u t t h e v n on 's ap nancal dta nownto he Uion or t lest monhs, proval. To this, Shea testified, Colette Cote said that if were insulated from any coercive effect as an unlawful he did not r Sternethatddayle"toC'tesahdohat." "threat" within the meaning of the Act. Thus, such state- did n o t r e t u r n that day. You're hrough. ments, in conjunction with Louis Murray's unchallenged Co te c o u ld n o t r e c a ll any particular conversation with testimony that, in the Bank's interest, it should have im- J o h n Shea, although she testified that she telephoned 30 mediately taken over and liquidated Respondent's assets o f t h e 60 striking employees in order to have them and that it contemporaneously presented a demand to r et u rn t o work because, as she told them, the Company Respondent for payment of its defaulted loan (as a legal had decided to operate and was trying to get a shift to- preliminary to taking over Respondent's assets), were gether. Cote testified that she told all 30 employees based on clear and open economic data which demon- whom she telephoned that Respondent was merely strated a reasonable belief on the Bank's part that Re- trying to start a production line and asked them to spondent could not continue in business suffering the an- return. While she could not recall what Shea answered, ticipated economic losses due to the strike. This is legally she denied telling him, or any other employee, that they far different from an attempt, without objective, support- were "through" if they did not return to work. ing economic data, by an employer to coerce employees On the basis of his demeanor and the specificity of his into giving up their right to strike by a threat to go out testimony, together with the particular lack of recollec- of business. The Supreme Court recognized this in tion of Cote regarding her conversation with him, I N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 credit Shea and conclude that, as alleged, Cote told him (1969). Under Gissel, I conclude that Louis Murray's that, if he did not return to work that day, he was statements concerning Respondent's going out of busi- "through"; and that such statement was a threat of dis- ness ("draw [your] own conclusions") in the face of a charge uttered to a striker in violation of Section 8(aXI) loss of revenue due to the strike was a "reasonable pre- of the Act. This is far different from an objective prog- diction based on available facts." Gissel, supra at 618. nostication of going out of business. Certainly, there is no evidence of the Bank's insincerity in making these predictions. I therefore recommend that D. The Alleged 8(a)(5) Violations paragraph 8(d), which alleges an independent violation of Section 8(a)(l) of the Act by virtue of the bank offi- 1. Th e collective-bargaining session of June 17, 1980 cials' June 10 statements to Respondent's striking em- Following the June 10 bargaining session which result- ployees of a threat to go out of business, be dismissed,. ed in the strike of that day, the Federal Mediation and C. Other Alleged 8(a)(l) Violations Con c ilia t io n Se r v ic e c a l le d a f u r t h e r meeting for June 17, 1980. The Union's witnesses, particularly David Murray According to the testimony of Scott Tuthill, an em- and Frank Volpe, testified that at Respondent's attor- ployee engaged in the June 10 strike, he met Bruce Ull- ney's (Bennett) request the Union's full committee of em- rich in the bakery parking lot in the afternoon on June ployees and union agents selected and worked principal- 10 while the strike was in progress. He testified that U11- ly through a subcommittee consisting of Volpe, David Murray, and McLellan (succeeded by Joseph Thibodeau 'Were a finding necessary, I would conclude that Respondent used the at meetings after June 17). The testimony is in dispute as bank off c ials to persuade the Union o f Respondent's insolvency and the to whether at this June 17 collective-bargaining session economic consequences of a continued strike. Within the scope of such activities, they were Respondent's agents. the parties resolved the question of the Union's accept- COTE BROS. BAKERY, INC. 779 would foreclose and the employees would lose their jobs rich approached him and told him that he was trying to if the employees continued to strike. Respondent contests get a shift together for that night to continue to work; this agency status, but no finding on the point is neces- that if Tuthill wanted to come to work he could; but that sary since I dispose of the Bank's action on the merits. 3 if the strike continued, the plant would close permanent- The General Counsel did not call McLellan to corrobo- ly. Ullrich denied having any such conversation with rate the testimony of Volpe and David Murray. Similar- Tuthill. I credit Tuthill and discredit Ullrich. I do so on ly, Respondent called neither its attorney (Horton) nor the basis of the specificity of Tuthill's recollection and its agent (O'Brian) to substantiate and corroborate the on the demeanor of the witnesses. I conclude, neverthe- testimony of Louis Murray. less, that Respondent did not violate Section 8(aX() of I resolve the testimonial conflict between the Bank the Act by telling Tuthill, a striking employee, that Re- and the union officials as follows. I conclude that Louis spondent would close its plant permanently if the em- Murray did tell the assembled union officers and employ- ployees continued to strike. I note that, although eco- ees that continuing the strike would cause Respondent nomic elements were mentioned by Ullrich to Tuthill, such loss of revenue as to cause it to fold, and that the the statement was insulated by the then existing facts, Bank would foreclose the loan, and sell the equipment above stated. I recommend that this allegation be dis- and everybody would lose their jobs if the strike contin- missed. ued. That is the meaning of his "draw [your] own con- The only remaining alleged violation of Section 8(a)(1) elusions remark." I also conclude that Louis Murray's is in paragraph 8(b) and involves Respondent's vice and the other bank officials' statements to the union offi- esident, Colette Cote, and a telephone conversation she cials and employees, that a continued strike meant such a had with striking employee John Shea in the evening on loss of revenue as to necessarily cause the Bank to fore- , 1 According to Shea, Cote telephoned him close, Respondent to go out of business, and the employ- at his home and asked him to return to work and he re- ees to lose their jobs, in the presence of the objective fi- p ta h wu n d so wh th U a nancial data known to the Union for at least 6 months, plid th at h e w o u l d " o t d o s o w l h o u t t h e v n on 's ap nancal dta nownto he Uion or t lest monhs, proval. To this, Shea testified, Colette Cote said that if were insulated from any coercive effect as an unlawful he did not r Sternethatddayle"toC'tesahdohat." "threat" within the meaning of the Act. Thus, such state- l e d l d n o t r e t u r n that day. You're hrough. ments, in conjunction with Louis Murray's unchallenged Co te c o u ld n o t r e c a ll any particular conversation with testimony that, in the Bank's interest, it should have im- J o hn Shea, although she testified that she telephoned 30 mediately taken over and liquidated Respondent's assets o f the 60 striking employees in order to have them and that it contemporaneously presented a demand to re turn to work because, as she told them, the Company Respondent for payment of its defaulted loan (as a legal had decided to operate and was trying to get a shift to- preliminary to taking over Respondent's assets), were gether. Cote testified that she told all 30 employees based on clear and open economic data which demon- whom she telephoned that Respondent was merely strated a reasonable belief on the Bank's part that Re- trying to start a production line and asked them to spondent could not continue in business suffering the an- return. While she could not recall what Shea answered, ticipated economic losses due to the strike. This is legally she denied telling him, or any other employee, that they far different from an attempt, without objective, support- were "through" if they did not return to work. ing economic data, by an employer to coerce employees On the basis of his demeanor and the specificity of his into giving up their right to strike by a threat to go out testimony, together with the particular lack of recollec- of business. The Supreme Court recognized this in tion of Cote regarding her conversation with him, I N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 credit Shea and conclude that, as alleged, Cote told him (1969). Under Gissel, I conclude that Louis Murray's that, if he did not return to work that day, he was statements concerning Respondent's going out of busi- "through"; and that such statement was a threat of dis- ness ("draw [your] own conclusions") in the face of a charge uttered to a striker in violation of Section 8(aXI) loss of revenue due to the strike was a "reasonable pre- of the Act. This is far different from an objective prog- diction based on available facts." Gissel, supra at 618. nostication of going out of business. Certainly, there is no evidence of the Bank's insincerity in making these predictions. I therefore recommend that D. The Alleged 8(a)(5) Violations paragraph 8(d), which alleges an independent violation of Section 8(a)(l) of the Act by virtue of the bank offi- 1. Th e collective-bargaining session of June 17, 1980 cials' June 10 statements to Respondent's striking em- Following the June 10 bargaining session which result- ployees of a threat to go out of business, be dismissed,. ed in the strike of that day, the Federal Mediation and C. Other Alleged 8(a)(l) Violations Con c ilia t io n Se r v ic e c a l le d a f u r t h e r meeting for June 17, 1980. The Union's witnesses, particularly David Murray According to the testimony of Scott Tuthill, an em- and Frank Volpe, testified that at Respondent's attor- ployee engaged in the June 10 strike, he met Bruce Ull- ney's (Bennett) request the Union's full committee of em- rich in the bakery parking lot in the afternoon on June ployees and union agents selected and worked principal- 10 while the strike was in progress. He testified that U11- ly through a subcommittee consisting of Volpe, David Murray, and McLellan (succeeded by Joseph Thibodeau 'Were a finding necessary, I would conclude that Respondent used the at meetings after June 17). The testimony is in dispute as bank off c ials to persuade the Union o f Respondent's insolvency and the to whether at this June 17 collective-bargaining session economic consequences of a continued strike. Within the scope of such activities, they were Respondent's agents. the parties resolved the question of the Union's accept- COTE BROS. BAKERY, INC. 779 would foreclose and the employees would lose their jobs rich approached him and told him that he was trying to if the employees continued to strike. Respondent contests get a shift together for that night to continue to work; this agency status, but no finding on the point is neces- that if Tuthill wanted to come to work he could; but that sary since I dispose of the Bank's action on the merits. 3 if the strike continued, the plant would close permanent- The General Counsel did not call McLellan to corrobo- ly. Ullrich denied having any such conversation with rate the testimony of Volpe and David Murray. Similar- Tuthill. I credit Tuthill and discredit Ullrich. I do so on ly, Respondent called neither its attorney (Horton) nor the basis of the specificity of Tuthill's recollection and its agent (O'Brian) to substantiate and corroborate the on the demeanor of the witnesses. I conclude, neverthe- testimony of Louis Murray. less, that Respondent did not violate Section 8(aX() of I resolve the testimonial conflict between the Bank the Act by telling Tuthill, a striking employee, that Re- and the union officials as follows. I conclude that Louis spondent would close its plant permanently if the em- Murray did tell the assembled union officers and employ- ployees continued to strike. I note that, although eco- ees that continuing the strike would cause Respondent nomic elements were mentioned by Ullrich to Tuthill, such loss of revenue as to cause it to fold, and that the the statement was insulated by the then existing facts, Bank would foreclose the loan, and sell the equipment above stated. I recommend that this allegation be dis- and everybody would lose their jobs if the strike contin- missed. ued. That is the meaning of his "draw [your] own con- The only remaining alleged violation of Section 8(a)(1) elusions remark." I also conclude that Louis Murray's is in paragraph 8(b) and involves Respondent's vice and the other bank officials' statements to the union offi- esident, Colette Cote, and a telephone conversation she cials and employees, that a continued strike meant such a had with striking employee John Shea in the evening on loss of revenue as to necessarily cause the Bank to fore- , 1 According to Shea, Cote telephoned him close, Respondent to go out of business, and the employ- at his home and asked him to return to work and he re- ees to lose their jobs, in the presence of the objective fi- p ta h wu n d so wh th U a nancial data known to the Union for at least 6 months, P' ple h at h e w o u l d " o t d o s o w l h o u t t h e v n on 's ap nancal dta nownto he Uion or t lest monhs, proval. To this, Shea testified, Colette Cote said that if were insulated from any coercive effect as an unlawful he did not r Sternethatddayle"toC'tesahdohat." "threat" within the meaning of the Act. Thus, such state- l e d l d n o t r e t u r n that day. Yo"'" hrough. ments, in conjunction with Louis Murray's unchallenged Co te could not recall any particular conversation with testimony that, in the Bank's interest, it should have im- J o hn Shea, although she testified that she telephoned 30 mediately taken over and liquidated Respondent's assets o f the 60 striking employees in order to have them and that it contemporaneously presented a demand to re turn to work because, as she told them, the Company Respondent for payment of its defaulted loan (as a legal had decided to operate and was trying to get a shift to- preliminary to taking over Respondent's assets), were gether. Cote testified that she told all 30 employees based on clear and open economic data which demon- whom she telephoned that Respondent was merely strated a reasonable belief on the Bank's part that Re- trying to start a production line and asked them to spondent could not continue in business suffering the an- return. While she could not recall what Shea answered, ticipated economic losses due to the strike. This is legally she denied telling him, or any other employee, that they far different from an attempt, without objective, support- were "through" if they did not return to work. ing economic data, by an employer to coerce employees On the basis of his demeanor and the specificity of his into giving up their right to strike by a threat to go out testimony, together with the particular lack of recollec- of business. The Supreme Court recognized this in tion of Cote regarding her conversation with him, I N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 credit Shea and conclude that, as alleged, Cote told him (1969). Under Gissel, I conclude that Louis Murray's that, if he did not return to work that day, he was statements concerning Respondent's going out of busi- "through"; and that such statement was a threat of dis- ness ("draw [your] own conclusions") in the face of a charge uttered to a striker in violation of Section 8(aXI) loss of revenue due to the strike was a "reasonable pre- of the Act. This is far different from an objective prog- diction based on available facts." Gissel, supra at 618. nostication of going out of business. Certainly, there is no evidence of the Bank's insincerity in making these predictions. I therefore recommend that D. The Alleged 8(a)(5) Violations paragraph 8(d), which alleges an independent violation of Section 8(a)(l) of the Act by virtue of the bank offi- 1. Th e collective-bargaining session of June 17, 1980 cials' June 10 statements to Respondent's striking em- Following the June 10 bargaining session which result- ployees of a threat to go out of business, be dismissed,. ed in the strike of that day, the Federal Mediation and C. Other Alleged 8(a)(l) Violations Con c ilia t io n Se r v ic e c a l le d a f u r t h e r meeting for June 17, 1980. The Union's witnesses, particularly David Murray According to the testimony of Scott Tuthill, an em- and Frank Volpe, testified that at Respondent's attor- ployee engaged in the June 10 strike, he met Bruce Ull- ney's (Bennett) request the Union's full committee of em- rich in the bakery parking lot in the afternoon on June ployees and union agents selected and worked principal- 10 while the strike was in progress. He testified that U11- ly through a subcommittee consisting of Volpe, David Murray, and McLellan (succeeded by Joseph Thibodeau 'Were a finding necessary, I would conclude that Respondent used the at meetings after June 17). The testimony is in dispute as bank off c ials to persuade the Union o f Respondent's insolvency and the to whether at this June 17 collective-bargaining session economic consequences of a continued strike. Within the scope of such activities, they were Respondent's agents. the parties resolved the question of the Union's accept- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance of Respondent's outstanding offer of a 30-cent-per- the employees who crossed the picket line, McLellan hour economic package. Contrary to the testimony of said that what Respondent was asking for was against Respondent's witnesses Ullrich and Hefford, I credit the the International constitution; that members had a right particular testimony of Volpe, who testified that the to bring charges against other members; and that, in union subcommittee, at that bargaining session, agreed to view of the fact that he thought that there was an exist- present the 30-cent-per-hour package to the full commit- ing agreement, that Respondent had "doublecrossed" the tee, that the full committee ultimately agreed to recom- Union. McLellan recalled that, in addition, he told Ben- mend the 30-cent-per-hour package to the membership, nett that while the Union could not agree to a provision and that the subcommittee so notified Respondent. against reprisals against members who crossed the picket Further, I conclude, while the ultimate question of line because the members had a right to file charges whether the subcommittee told Respondent that the under the union constitution, the union officers had no Union was going to recommend to the membership the interest in taking reprisals against such members. Volpe's 30-cent-per-hour economic package is not dispositive and testimony corroborates David Murray's and McLellan's while this is not an "acceptance" of Respondent's offer, I credited testimony. also make the subsidiary finding that at the beginning of Charles R. Hefford, present at the meeting as Re- the meeting (after the Union acknowledged that it knew spondent's financial consultant, credibly recalled that, that Respondent was in deep financial trouble) Respond- when the Union stated that it could not bind the mem- ent initially inquired whether the Union was prepared to bership from making charges against the members who submit Respondent's offer to its membership with an af- crossed the picket line, but that the officers had no inter- firmative recommendation. While the Union at first said est in taking retaliation, Bennett or Ullrich said that such that it would submit the recommendation without com- an assurance from the Union was not sufficient and that ment, it then agreed to meet with the full committee on Respondent wanted an assurance against retribution or the matter and submit it to them. It was after this cau- retaliation by the membership. He recalled Ullrich saying cusing that the subcommittee returned and, as above that the union officers' assurance, as it stood, was not noted, told Respondent that the Union would recom- good enough; and that Respondent needed an agreement mend the 30-cent-per-hour package to the membership. I against retaliation from any quarter against the employ- also find that it was Union Vice President McLellan ees who passed through the picket line since they were who, before caucusing with the full committee, told Re- the older, experienced employees needed by Respondent spondent that the Union would submit the 30-cent-per- to operate. He recalls that Respondent called them its hour wage package "without recommendation." I con- "key" people. Ullrich recalled that McLellan said he elude that after caucusing the Union notified Respondent hoped Respondent was not trying to tell him how to run that it was prepared to recommend the 30-cent-per-hour "his Union." economic package to the membership for a vote, and I credit Hefford's testimony that at that point McLel- that the vote, in accordance with Respondent's request, lan said that, since there could be no agreement with would be by secret ballot. regard to the issue of retribution or retaliation against At the time of this June 17 meeting, the strike was in members who had crossed the picket line, he would not progress for 1 week. During the meeting, and before the present Respondent's 30-cent-per-hour economic offer to Union's caucus to consider acceptance of the economic the membership. At that point, after McLellan said that package, Ullrich told the Union of a number of inci- the members had a constitutional right under the Interna- dences of strike misconduct affecting some (about 17) tional constitution to file charges against members who employees who had crossed the picket line and worked employees who had crossed the picket line and worked crossed the picket line, Bennett asked for a copy of the for Respondent during that week. Ullrich read off a list constitution to see what the members' rights were. of allegations of attempted rape, scratching and painting McLellan said that he did not have a copy of the consti- cars, and threats to employees who crossed the picket tution with him but would provide Bennett with a copy line. McLellan denied knowledge of the incidents but thereafter, and suggested that Bennett, as a lawyer, added that he would pass the word that the members might find a way around this problem. A copy of the should abstain from violence. should abstain from violence. constitution was subsequently served on Bennett. I further find that, after the subcommittee returned and rhe adised Resp, aftde . .tuncmion comttree Volpe credibly testified, and Ullirch's and Hefford's and advised Respondent that the Union committee 3 n - t on ommic testimony supports the conclusion, that this June 17 would recommend the 30-cent-per-hour economic pack- would recommend the \0-cent-per-hour economic pack- meeting broke up after Bennett said that Respondent age, Respondent (Bennett) said "great" but that the par- could not allow the employees who crossed the picket ties still had to resolve the problem of protecting the line to have problems and would have to have an agree- line to have problems and would have to have an agree- working employees against any threats or reprisals from m t t " ment that these "key people" would not be subject to the returned strikers. I find, in accordance with Ullrich's ny union etibutn ee by h n te id th any union retribution either by having them fired by the testimony, that Bennett and Ullrich told the Union that nion through o of union me i or the Union through loss of union membership or through the Respondent sought to protect employees who crossed . Respondent sought to pr t e s wo c d imposition of heavy union fines which might cause them the picket line and any "new hires." Ullrich and Bennett to quit their e oyen told the Union of Respondent's concern with the Union's anticipated retaliation against its members who crossed 2. The collective-bargaining session of June 24, 1980 the Union's picket line. David Murray recalled that, when Respondent, through Ullrich and Bennett, demand- The Federal Mediation and Concilation Service called ed a contract provision that there be no reprisals against a meeting on June 24. The meeting opened with the me- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance of Respondent's outstanding offer of a 30-cent-per- the employees who crossed the picket line, McLellan hour economic package. Contrary to the testimony of said that what Respondent was asking for was against Respondent's witnesses Ullrich and Hefford, I credit the the International constitution; that members had a right particular testimony of Volpe, who testified that the to bring charges against other members; and that, in union subcommittee, at that bargaining session, agreed to view of the fact that he thought that there was an exist- present the 30-cent-per-hour package to the full commit- ing agreement, that Respondent had "doublecrossed" the tee, that the full committee ultimately agreed to recom- Union. McLellan recalled that, in addition, he told Ben- mend the 30-cent-per-hour package to the membership, nett that while the Union could not agree to a provision and that the subcommittee so notified Respondent,.against reprisals against members who crossed the picket Further, I conclude, while the ultimate question of line because the members had a right to file charges whether the subcommittee told Respondent that the under the union constitution, the union officers had no Union was going to recommend to the membership the interest in taking reprisals against such members. Volpe's 30-cent-per-hour economic package is not dispositive and testimony corroborates David Murray's and McLellan's while this is not an "acceptance" of Respondent's offer, I credited testimony. also make the subsidiary finding that at the beginning of Charles R. Hefford, present at the meeting as Re- the meeting (after the Union acknowledged that it knew spondent's financial consultant, credibly recalled that, that Respondent was in deep financial trouble) Respond- when the Union stated that it could not bind the mem- ent initially inquired whether the Union was prepared to bership from making charges against the members who submit Respondent's offer to its membership with an af- crossed the picket line, but that the officers had no inter- firmative recommendation. While the Union at first said est in taking retaliation, Bennett or Ullrich said that such that it would submit the recommendation without com- an assurance from the Union was not sufficient and that ment, it then agreed to meet with the full committee on Respondent wanted an assurance against retribution or the matter and submit it to them. It was after this cau- retaliation by the membership. He recalled Ullrich saying cusing that the subcommittee returned and, as above that the union officers' assurance, as it stood, was not noted, told Respondent that the Union would recom- good enough; and that Respondent needed an agreement mend the 30-cent-per-hour package to the membership. I against retaliation from any quarter against the employ- also find that it was Union Vice President McLellan ees who passed through the picket line since they were who, before caucusing with the full committee, told Re- the older, experienced employees needed by Respondent spondent that the Union would submit the 30-cent-per- to operate. He recalls that Respondent called them its hour wage package "without recommendation." I con- "key" people. Ullrich recalled that McLellan said he elude that after caucusing the Union notified Respondent hoped Respondent was not trying to tell him how to run that it was prepared to recommend the 30-cent-per-hour "his Union." economic package to the membership for a vote, and I credit Hefford's testimony that at that point McLel- that the vote, in accordance with Respondent's request, lan said that, since there could be no agreement with would be by secret ballot. regard to the issue of retribution or retaliation against At the time of this June 17 meeting, the strike was in members who had crossed the picket line, he would not progress for 1 week. During the meeting, and before the present Respondent's 30-cent-per-hour economic offer to Union's caucus to consider acceptance of the economic the membership. At that point, after McLellan said that package, Ullrich told the Union of a number of inci- the members had a constitutional right under the Interna- dences of strike misconduct affecting some (about 17) tional constitution to file charges against members who employees who had crossed the picket line and worked crossed the picket line, Bennett asked for a copy of the for Respondent during that week. Ullrich read off a list constitution to see what the members' rights were. of allegations of attempted rape, scratching and painting McLellan said that he did not have a copy of the consti- cars, and threats to employees who crossed the picket tution with him but would provide Bennett with a copy line. McLellan denied knowledge of the incidents but thereafter, and suggested that Bennett, as a lawyer, added that he would pass the word that the members might find a way around this problem. A copy of the should abstain from violence. constitution was subsequently served on Bennett. I further find that, after the subcommittee returned . ,„..-. ri' jur r I further find that, after the subcommittee returned.Volpe credibly testified, and Ullirch's and Hefford's and advised Respondent that the Union committee . - , ,. . .. - and advised Respondent that the Union committee testimony supports the conclusion, that this June 17 would recommend the 30-cent-per-hour economic pack- m bo up a Bn si ta Resonen r» -i. /n .\ -i .. " i-. .1.. .1meeting broke up after Bennett said that Respondent age, Respondent (Bennett) said "great" but that the par- could not allow the employees who crossed the picket ties still had to resolve the problem of protecting the l t p e wo1 have t a g , . , . 'i_. * i r ~~~~~line to have problems and would have to have an agree- working employees against any threats or reprisals from m t t "e p w no b subjct t . c . * ' B „ , . - , ., ,„, . .ment that these "key people" would not be subject to the returned strikers. I find, in accordance with Ullrich's an uno r eit by in t fired by the . . . „ , , ,,ii *i. . u .. TT .u any union retribution either by having them fired by the testimony, that Bennett and Ullrich told the Union that Ui t l o u m o through th - ,*" , ,. . , . , , , ~~~Union through loss of union membership or through the Respondent sought to protect employees who crossed . . -. ~ . i > Respondent sought to protect employees who crossed imposition of heavy union fines which might cause them the picket line and any "new hires." Ullrich and Bennett t q t emlyet told the Union of Respondent's concern with the Union's anticipated retaliation against its members who crossed 2. The collective-bargaining session of June 24, 1980 the Union's picket line. David Murray recalled that, when Respondent, through Ullrich and Bennett, demand- The Federal Mediation and Concilation Service called ed a contract provision that there be no reprisals against a meeting on June 24. The meeting opened with the me- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance of Respondent's outstanding offer of a 30-cent-per- the employees who crossed the picket line, McLellan hour economic package. Contrary to the testimony of said that what Respondent was asking for was against Respondent's witnesses Ullrich and Hefford, I credit the the International constitution; that members had a right particular testimony of Volpe, who testified that the to bring charges against other members; and that, in union subcommittee, at that bargaining session, agreed to view of the fact that he thought that there was an exist- present the 30-cent-per-hour package to the full commit- ing agreement, that Respondent had "doublecrossed" the tee, that the full committee ultimately agreed to recom- Union. McLellan recalled that, in addition, he told Ben- mend the 30-cent-per-hour package to the membership, nett that while the Union could not agree to a provision and that the subcommittee so notified Respondent,.against reprisals against members who crossed the picket Further, I conclude, while the ultimate question of line because the members had a right to file charges whether the subcommittee told Respondent that the under the union constitution, the union officers had no Union was going to recommend to the membership the interest in taking reprisals against such members. Volpe's 30-cent-per-hour economic package is not dispositive and testimony corroborates David Murray's and McLellan's while this is not an "acceptance" of Respondent's offer, I credited testimony. also make the subsidiary finding that at the beginning of Charles R. Hefford, present at the meeting as Re- the meeting (after the Union acknowledged that it knew spondent's financial consultant, credibly recalled that, that Respondent was in deep financial trouble) Respond- when the Union stated that it could not bind the mem- ent initially inquired whether the Union was prepared to bership from making charges against the members who submit Respondent's offer to its membership with an af- crossed the picket line, but that the officers had no inter- firmative recommendation. While the Union at first said est in taking retaliation, Bennett or Ullrich said that such that it would submit the recommendation without com- an assurance from the Union was not sufficient and that ment, it then agreed to meet with the full committee on Respondent wanted an assurance against retribution or the matter and submit it to them. It was after this cau- retaliation by the membership. He recalled Ullrich saying cusing that the subcommittee returned and, as above that the union officers' assurance, as it stood, was not noted, told Respondent that the Union would recom- good enough; and that Respondent needed an agreement mend the 30-cent-per-hour package to the membership. I against retaliation from any quarter against the employ- also find that it was Union Vice President McLellan ees who passed through the picket line since they were who, before caucusing with the full committee, told Re- the older, experienced employees needed by Respondent spondent that the Union would submit the 30-cent-per- to operate. He recalls that Respondent called them its hour wage package "without recommendation." I con- "key" people. Ullrich recalled that McLellan said he elude that after caucusing the Union notified Respondent hoped Respondent was not trying to tell him how to run that it was prepared to recommend the 30-cent-per-hour "his Union." economic package to the membership for a vote, and I credit Hefford's testimony that at that point McLel- that the vote, in accordance with Respondent's request, lan said that, since there could be no agreement with would be by secret ballot. regard to the issue of retribution or retaliation against At the time of this June 17 meeting, the strike was in members who had crossed the picket line, he would not progress for 1 week. During the meeting, and before the present Respondent's 30-cent-per-hour economic offer to Union's caucus to consider acceptance of the economic the membership. At that point, after McLellan said that package, Ullrich told the Union of a number of inci- the members had a constitutional right under the Interna- dences of strike misconduct affecting some (about 17) tional constitution to file charges against members who employees who had crossed the picket line and worked crossed the picket line, Bennett asked for a copy of the for Respondent during that week. Ullrich read off a list constitution to see what the members' rights were. of allegations of attempted rape, scratching and painting McLellan said that he did not have a copy of the consti- cars, and threats to employees who crossed the picket tution with him but would provide Bennett with a copy line. McLellan denied knowledge of the incidents but thereafter, and suggested that Bennett, as a lawyer, added that he would pass the word that the members might find a way around this problem. A copy of the should abstain from violence. constitution was subsequently served on Bennett. I further find that, after the subcommittee returned . ,„..-. ri' jur r I further find that, after the subcommittee returned.Volpe credibly testified, and Ullirch's and Hefford's and advised Respondent that the Union committee . - , ,. . .. - and advised Respondent that the Union committee testimony supports the conclusion, that this June 17 would recommend the 30-cent-per-hour economic pack- m bo up a Bn si ta Resonen r» -i. /n .\ -i .. " i-. .1.. .1meeting broke up after Bennett said that Respondent age, Respondent (Bennett) said "great" but that the par- could not allow the employees who crossed the picket ties still had to resolve the problem of protecting the l t p e wo1 have t a g , . , . 'i_. * i r ~~~~~line to have problems and would have to have an agree- working employees against any threats or reprisals from m t t "e p w no b subjct t . c . * ' B „ , . - , ., ,„, . .ment that these "key people" would not be subject to the returned strikers. I find, in accordance with Ullrich's an uno r eit by in t fired by the . . . „ , , ,,ii *i. . u .. TT .u any union retribution either by having them fired by the testimony, that Bennett and Ullrich told the Union that Ui t l o u m o through th - ,*" , ,. . , . , , , ~~~Union through loss of union membership or through the Respondent sought to protect employees who crossed . . -. ~ . i > Respondent sought to protect employees who crossed imposition of heavy union fines which might cause them the picket line and any "new hires." Ullrich and Bennett t q t emlyet told the Union of Respondent's concern with the Union's anticipated retaliation against its members who crossed 2. The collective-bargaining session of June 24, 1980 the Union's picket line. David Murray recalled that, when Respondent, through Ullrich and Bennett, demand- The Federal Mediation and Concilation Service called ed a contract provision that there be no reprisals against a meeting on June 24. The meeting opened with the me- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance of Respondent's outstanding offer of a 30-cent-per- the employees who crossed the picket line, McLellan hour economic package. Contrary to the testimony of said that what Respondent was asking for was against Respondent's witnesses Ullrich and Hefford, I credit the the International constitution; that members had a right particular testimony of Volpe, who testified that the to bring charges against other members; and that, in union subcommittee, at that bargaining session, agreed to view of the fact that he thought that there was an exist- present the 30-cent-per-hour package to the full commit- ing agreement, that Respondent had "doublecrossed" the tee, that the full committee ultimately agreed to recom- Union. McLellan recalled that, in addition, he told Ben- mend the 30-cent-per-hour package to the membership, nett that while the Union could not agree to a provision and that the subcommittee so notified Respondent,.against reprisals against members who crossed the picket Further, I conclude, while the ultimate question of line because the members had a right to file charges whether the subcommittee told Respondent that the under the union constitution, the union officers had no Union was going to recommend to the membership the interest in taking reprisals against such members. Volpe's 30-cent-per-hour economic package is not dispositive and testimony corroborates David Murray's and McLellan's while this is not an "acceptance" of Respondent's offer, I credited testimony. also make the subsidiary finding that at the beginning of Charles R. Hefford, present at the meeting as Re- the meeting (after the Union acknowledged that it knew spondent's financial consultant, credibly recalled that, that Respondent was in deep financial trouble) Respond- when the Union stated that it could not bind the mem- ent initially inquired whether the Union was prepared to bership from making charges against the members who submit Respondent's offer to its membership with an af- crossed the picket line, but that the officers had no inter- firmative recommendation. While the Union at first said est in taking retaliation, Bennett or Ullrich said that such that it would submit the recommendation without com- an assurance from the Union was not sufficient and that ment, it then agreed to meet with the full committee on Respondent wanted an assurance against retribution or the matter and submit it to them. It was after this cau- retaliation by the membership. He recalled Ullrich saying cusing that the subcommittee returned and, as above that the union officers' assurance, as it stood, was not noted, told Respondent that the Union would recom- good enough; and that Respondent needed an agreement mend the 30-cent-per-hour package to the membership. I against retaliation from any quarter against the employ- also find that it was Union Vice President McLellan ees who passed through the picket line since they were who, before caucusing with the full committee, told Re- the older, experienced employees needed by Respondent spondent that the Union would submit the 30-cent-per- to operate. He recalls that Respondent called them its hour wage package "without recommendation." I con- "key" people. Ullrich recalled that McLellan said he elude that after caucusing the Union notified Respondent hoped Respondent was not trying to tell him how to run that it was prepared to recommend the 30-cent-per-hour "his Union." economic package to the membership for a vote, and I credit Hefford's testimony that at that point McLel- that the vote, in accordance with Respondent's request, lan said that, since there could be no agreement with would be by secret ballot. regard to the issue of retribution or retaliation against At the time of this June 17 meeting, the strike was in members who had crossed the picket line, he would not progress for 1 week. During the meeting, and before the present Respondent's 30-cent-per-hour economic offer to Union's caucus to consider acceptance of the economic the membership. At that point, after McLellan said that package, Ullrich told the Union of a number of inci- the members had a constitutional right under the Interna- dences of strike misconduct affecting some (about 17) tional constitution to file charges against members who employees who had crossed the picket line and worked crossed the picket line, Bennett asked for a copy of the for Respondent during that week. Ullrich read off a list constitution to see what the members' rights were. of allegations of attempted rape, scratching and painting McLellan said that he did not have a copy of the consti- cars, and threats to employees who crossed the picket tution with him but would provide Bennett with a copy line. McLellan denied knowledge of the incidents but thereafter, and suggested that Bennett, as a lawyer, added that he would pass the word that the members might find a way around this problem. A copy of the should abstain from violence. constitution was subsequently served on Bennett. I further find that, after the subcommittee returned . ,„..-. ri' jur r I further find that, after the subcommittee returned.Volpe credibly testified, and Ullirch's and Hefford's and advised Respondent that the Union committee . - , ,. . .. - and advised Respondent that the Union committee testimony supports the conclusion, that this June 17 would recommend the 30-cent-per-hour economic pack- m bo up a Bn si ta Resonen r» -i. /n .\ -i .. " i-. .1.. .1meeting broke up after Bennett said that Respondent age, Respondent (Bennett) said "great" but that the par- could not allow the employees who crossed the picket ties still had to resolve the problem of protecting the l t p e wo1 have t a g , . , . 'i_. * i r ~~~~~line to have problems and would have to have an agree- working employees against any threats or reprisals from m t t "e p w no b subjct t . c . * ' B „ , . - , ., ,„, . .ment that these "key people" would not be subject to the returned strikers. I find, in accordance with Ullrich's an uno r eit by in t fired by the . . . „ , , ,,ii *i. . u .. TT .u any union retribution either by having them fired by the testimony, that Bennett and Ullrich told the Union that Ui t l o u m o through th - ,*" , ,. . , . , , , ~~~Union through loss of union membership or through the Respondent sought to protect employees who crossed . . -. ~ . i > Respondent sought to protect employees who crossed imposition of heavy union fines which might cause them the picket line and any "new hires." Ullrich and Bennett t q t emlyet told the Union of Respondent's concern with the Union's anticipated retaliation against its members who crossed 2. The collective-bargaining session of June 24, 1980 the Union's picket line. David Murray recalled that, when Respondent, through Ullrich and Bennett, demand- The Federal Mediation and Concilation Service called ed a contract provision that there be no reprisals against a meeting on June 24. The meeting opened with the me- COTE BROS. BAKERY, INC. 781 diator asking the Union to explain its International con- dation against the members who had crossed the picket stitution and the members' right to file charges against line. Thibodeau testified that he could not recall the members who crossed the union picket line. latter phrase being used: that the Company wanted to Attorney for Respondent (Bennett) then stated that pick and choose because it did not want to reinstate since he had been provided with the copy of the union those responsible for violence. I do not credit Thibo- constitution between the two meetings, and the Union deau's lack of recollection, and I conclude that such a had rejected a premeeting suggestion that the Union right was linked with the question of Respondent's desire exact a token $25 fine on each member who had crossed to pick and choose among employees, rejecting those through the picket line, the way around the problem of whom it thought responsible for various acts of intimida- union retaliation was that the Union agree to an "agency tion and violence. Thibodeau, in any event, denied shop." Bennett said that an agency shop would require asking Bennett why or who he wanted to pick and merely the payment of union dues and fees without re- chose. quiring union membership and that the union members Volpe testified that Bennett, after hearing that the who had crossed the picket line could neither be heavily Union had met with the unit employees regarding the fined nor retaliated against. This would permit their con- filing of charges, said that the parties had another prob- tinued employment as key people by Respondent. The lem and that Respondent wanted to pick and choose Union refused to agree to the offer. Thereafter, Bennett from among those strikers who returned. Volpe recalled suggested, and the Union rejected, an agreement for an that the Union's response was that it could never agree initial 1-year agency shop to be followed by the reinstitu- to that, that the meeting broke up, and that the bargain- tion of a union-shop provision in the second year of a 2- ers returned to the picket line. Volpe could not recall year contract. The Union told Respondent that it would any linkage between the alleged violence and Respond- not agree to any form of agency shop. ent's desire to pick and choose. As aforesaid, I find that David Murray recalled that at that point Attorney there was a linkage mentioned by Respondent between Bennett asked whether the Union could discharge the its desire to pick and choose from among returning strik- employees who crossed the picket line and the Union re- ers and its appraisal of whether the strikers were en- sponded that it could not and even gave reasons (not dis- gaged in acts of violence or intimidation. closed in this record either by direct examination or cross-examination) why it could not cause a discharge of 3. The June 24 collective-bargaining session such employees. David Murray testified that after the according to Respondent's witnesses Union again said that the union officials would not retali- ate, and would even recommend to its members that they Hefford recalled that the Federal mediator, at the con- take no reprisals but could not guarantee that, Bennett clusion of the June 17 collective-bargaining session, said that he agreed that the Union had done everything stated that he saw the possibility of progress if the retali- possible and that he understood and approved of the ation or "retribution" issue could be addressed. He re- Union's action. I do not credit David Murray's further called that the opening of the June 24 session concerned testimony that Bennett then said that the parties had "an the question of the Company's desire for assurances pro- agreement." I do, however, credit Volpe's testimony that tecting the employees who crossed the picket line during at the June 24 meeting the Union told Respondent that, the strike; and that, after the Union rejected Bennett's in the intervening week since the June 17 meeting, the suggestions both of an agency shop and of a secondary union committee had met with the employee-members variation requiring a union shop following 1 year of an and that the members would not cause problems with re- agency shop, Bennett said that the Union had also reject- prisals against members who had crossed the picket line. ed an intermediate position taken during the period be- This substantially corroborates David Murray's testimo- tween the collective-bargaining sessions (of a $25 fine for ny that at one point Bennett said that he agreed that the members who had crossed the picket line) and that it Union had done everything possible and that he under- now seemed to him that the Union actually did want to stood and approved of the Union's conduct with regard take retaliation against those members who had crossed to gaining as much as possible from the membership with the picket line during the strike. Ullrich then added that regard to an assurance and agreement against the filing Respondent was in the business of selling bread "not of retaliatory charges by union members against those people." who crossed the picket line. Hefford and Ullrich denied that any "pick and According to the General Counsel's witnesses, particu- choose" statement was ever made by Respondent, that larly David Murray, Volpe, and International Union Respondent ever expressed the desire to pick and choose Representative Thibodeau (who on June 24 had replaced from among returning strikers, and that seniority among McLellan), Bennett then said, after hearing union assur- returning picketers was ever discussed; and both assert ances (there would be no trouble from the union mem- that the meeting broke up only after the Union could not bership in filing charges against members who had give assurances to Respondent against retaliation or retri- crossed the picket line), that in order to help insure the bution against members who had crossed the picket line.4 protection of employees who had crossed the picket line from retaliation by individual members Respondent re- 4 To the extent Respondent asserts (br., p. 4) that at the June 24 session quired the right to "pick and choose" from among the Respondent stated that the issue of union reprisals against nonstriking em- ployees who returned to work was no longer in issue, such assertion is returning striking employees since some of the strikers not supported by the evidence and is rejected. Similarly rejected is Re- were responsible for alleged acts of violence and intimi- Continued COTE BROS. BAKERY, INC. 781 diator asking the Union to explain its International con- dation against the members who had crossed the picket stitution and the members' right to file charges against line. Thibodeau testified that he could not recall the members who crossed the union picket line. latter phrase being used: that the Company wanted to Attorney for Respondent (Bennett) then stated that pick and choose because it did not want to reinstate since he had been provided with the copy of the union those responsible for violence. I do not credit Thibo- constitution between the two meetings, and the Union deau's lack of recollection, and I conclude that such a had rejected a premeeting suggestion that the Union right was linked with the question of Respondent's desire exact a token $25 fine on each member who had crossed to pick and choose among employees, rejecting those through the picket line, the way around the problem of whom it thought responsible for various acts of intimida- union retaliation was that the Union agree to an "agency tion and violence. Thibodeau, in any event, denied shop." Bennett said that an agency shop would require asking Bennett why or who he wanted to pick and merely the payment of union dues and fees without re- chose. quiring union membership and that the union members Volpe testified that Bennett, after hearing that the who had crossed the picket line could neither be heavily Union had met with the unit employees regarding the fined nor retaliated against. This would permit their con- filing of charges, said that the parties had another prob- tinued employment as key people by Respondent. The iem and that Respondent wanted to pick and choose Union refused to agree to the offer. Thereafter, Bennett from among those strikers who returned. Volpe recalled suggested, and the Union rejected, an agreement for an that the Union's response was that it could never agree initial 1-year agency shop to be followed by the reinstitu- to that, that the meeting broke up, and that the bargain- tion of a union-shop provision in the second year of a 2- ers returned to the picket line. Volpe could not recall year contract. The Union told Respondent that it would any linkage between the alleged violence and Respond- not agree to any form of agency shop. ent's desire to pick and choose. As aforesaid, I find that David Murray recalled that at that point Attorney there was a linkage mentioned by Respondent between Bennett asked whether the Union could discharge the its desire to pick and choose from among returning strik- employees who crossed the picket line and the Union re- ers and its appraisal of whether the strikers were en- sponded that it could not and even gave reasons (not dis- gaged in acts of violence or intimidation. closed in this record either by direct examination or cross-examination) why it could not cause a discharge of 3. The June 24 collective-bargaining session such employees. David Murray testified that after the according to Respondent's witnesses Union again said that the union officials would not retali- ate, and would even recommend to its members that they Hefford recalled that the Federal mediator, at the con- take no reprisals but could not guarantee that, Bennett clusion of the June 17 collective-bargaining session, said that he agreed that the Union had done everything stated that he saw the possibility of progress if the retali- possible and that he understood and approved of the ation or "retribution" issue could be addressed. He re- Union's action. I do not credit David Murray's further called that the opening of the June 24 session concerned testimony that Bennett then said that the parties had "an the question of the Company's desire for assurances pro- agreement." I do, however, credit Volpe's testimony that tecting the employees who crossed the picket line during at the June 24 meeting the Union told Respondent that, the strike; and that, after the Union rejected Bennett's in the intervening week since the June 17 meeting, the suggestions both of an agency shop and of a secondary union committee had met with the employee-members variation requiring a union shop following 1 year of an and that the members would not cause problems with re- agency shop, Bennett said that the Union had also reject- prisals against members who had crossed the picket line. e d an intermediate position taken during the period be- This substantially corroborates David Murray's testimo- tween t h e collective-bargaining sessions (of a $25 fine for ny that at one point Bennett said that he agreed that the members who had crossed the picket line) and that it Union had done everything possible and that he under- n o w seemed to him that the Union actually did want to stood and approved of the Union's conduct with regard take retaliation against those members who had crossed to gaining as much as possible from the membership with t h e picket lin e during the strike. Ullrich then added that regard to an assurance and agreement against the filing Respondent was in the business of selling bread "not of retaliatory charges by union members against those people." who crossed the picket line. Hefford and Ullrich denied that any "pick and According to the General Counsel's witnesses, particu- choose" statement was ever made by Respondent, that larly David Murray, Volpe, and International Union Respondent ever expressed the desire to pick and choose Representative Thibodeau (who on June 24 had replaced from among returning strikers, and that seniority among McLellan), Bennett then said, after hearing union assur- returning picketers was ever discussed; and both assert ances (there would be no trouble from the union mem- that the meeting broke up only after the Union could not bership in filing charges against members who had give assurances to Respondent against retaliation or retri- crossed the picket line), that in order to help insure the bution against members who had crossed the picket line.4 protection of employees who had crossed the picket line from retaliation by individual members Respondent re- 4 To the extent Respondent asserts (br., p. 4) that at the June 24 session quired the right to "pick and choose" from among the Respondent stated that the issue of union reprisals against nonstriking cm- ployees who returned to work was no longer in issue, such aswertion is returning striking employees Since some Of the strikers no, supported by the evidence and is rejected. Similarly rejected is Re- were responsible for alleged acts of violence and intimi- Continued COTE BROS. BAKERY, INC. 781 diator asking the Union to explain its International con- dation against the members who had crossed the picket stitution and the members' right to file charges against line. Thibodeau testified that he could not recall the members who crossed the union picket line. latter phrase being used: that the Company wanted to Attorney for Respondent (Bennett) then stated that pick and choose because it did not want to reinstate since he had been provided with the copy of the union those responsible for violence. I do not credit Thibo- constitution between the two meetings, and the Union deau's lack of recollection, and I conclude that such a had rejected a premeeting suggestion that the Union right was linked with the question of Respondent's desire exact a token $25 fine on each member who had crossed to pick and choose among employees, rejecting those through the picket line, the way around the problem of whom it thought responsible for various acts of intimida- union retaliation was that the Union agree to an "agency tion and violence. Thibodeau, in any event, denied shop." Bennett said that an agency shop would require asking Bennett why or who he wanted to pick and merely the payment of union dues and fees without re- chose. quiring union membership and that the union members Volpe testified that Bennett, after hearing that the who had crossed the picket line could neither be heavily Union had met with the unit employees regarding the fined nor retaliated against. This would permit their con- filing of charges, said that the parties had another prob- tinued employment as key people by Respondent. The iem and that Respondent wanted to pick and choose Union refused to agree to the offer. Thereafter, Bennett from among those strikers who returned. Volpe recalled suggested, and the Union rejected, an agreement for an that the Union's response was that it could never agree initial 1-year agency shop to be followed by the reinstitu- to that, that the meeting broke up, and that the bargain- tion of a union-shop provision in the second year of a 2- ers returned to the picket line. Volpe could not recall year contract. The Union told Respondent that it would any linkage between the alleged violence and Respond- not agree to any form of agency shop. ent's desire to pick and choose. As aforesaid, I find that David Murray recalled that at that point Attorney there was a linkage mentioned by Respondent between Bennett asked whether the Union could discharge the its desire to pick and choose from among returning strik- employees who crossed the picket line and the Union re- ers and its appraisal of whether the strikers were en- sponded that it could not and even gave reasons (not dis- gaged in acts of violence or intimidation. closed in this record either by direct examination or cross-examination) why it could not cause a discharge of 3. The June 24 collective-bargaining session such employees. David Murray testified that after the according to Respondent's witnesses Union again said that the union officials would not retali- ate, and would even recommend to its members that they Hefford recalled that the Federal mediator, at the con- take no reprisals but could not guarantee that, Bennett clusion of the June 17 collective-bargaining session, said that he agreed that the Union had done everything stated that he saw the possibility of progress if the retali- possible and that he understood and approved of the ation or "retribution" issue could be addressed. He re- Union's action. I do not credit David Murray's further called that the opening of the June 24 session concerned testimony that Bennett then said that the parties had "an the question of the Company's desire for assurances pro- agreement." I do, however, credit Volpe's testimony that tecting the employees who crossed the picket line during at the June 24 meeting the Union told Respondent that, the strike; and that, after the Union rejected Bennett's in the intervening week since the June 17 meeting, the suggestions both of an agency shop and of a secondary union committee had met with the employee-members variation requiring a union shop following 1 year of an and that the members would not cause problems with re- agency shop, Bennett said that the Union had also reject- prisals against members who had crossed the picket line. e d an intermediate position taken during the period be- This substantially corroborates David Murray's testimo- tween t h e collective-bargaining sessions (of a $25 fine for ny that at one point Bennett said that he agreed that the members who had crossed the picket line) and that it Union had done everything possible and that he under- n o w seemed to him that the Union actually did want to stood and approved of the Union's conduct with regard take retaliation against those members who had crossed to gaining as much as possible from the membership with t h e picket lin e during the strike. Ullrich then added that regard to an assurance and agreement against the filing Respondent was in the business of selling bread "not of retaliatory charges by union members against those people." who crossed the picket line. Hefford and Ullrich denied that any "pick and According to the General Counsel's witnesses, particu- choose" statement was ever made by Respondent, that larly David Murray, Volpe, and International Union Respondent ever expressed the desire to pick and choose Representative Thibodeau (who on June 24 had replaced from among returning strikers, and that seniority among McLellan), Bennett then said, after hearing union assur- returning picketers was ever discussed; and both assert ances (there would be no trouble from the union mem- that the meeting broke up only after the Union could not bership in filing charges against members who had give assurances to Respondent against retaliation or retri- crossed the picket line), that in order to help insure the bution against members who had crossed the picket line.4 protection of employees who had crossed the picket line from retaliation by individual members Respondent re- 4 To the extent Respondent asserts (br., p. 4) that at the June 24 session quired the right to "pick and choose" from among the Respondent stated that the issue of union reprisals against nonstriking cm- ployees who returned to work was no longer in issue, such aswertion is returning striking employees Since some Of the strikers not supported by the evidence and is rejected. Similarly rejected is Re- were responsible for alleged acts of violence and intimi- Continued COTE BROS. BAKERY, INC. 781 diator asking the Union to explain its International con- dation against the members who had crossed the picket stitution and the members' right to file charges against line. Thibodeau testified that he could not recall the members who crossed the union picket line. latter phrase being used: that the Company wanted to Attorney for Respondent (Bennett) then stated that pick and choose because it did not want to reinstate since he had been provided with the copy of the union those responsible for violence. I do not credit Thibo- constitution between the two meetings, and the Union deau's lack of recollection, and I conclude that such a had rejected a premeeting suggestion that the Union right was linked with the question of Respondent's desire exact a token $25 fine on each member who had crossed to pick and choose among employees, rejecting those through the picket line, the way around the problem of whom it thought responsible for various acts of intimida- union retaliation was that the Union agree to an "agency tion and violence. Thibodeau, in any event, denied shop." Bennett said that an agency shop would require asking Bennett why or who he wanted to pick and merely the payment of union dues and fees without re- chose. quiring union membership and that the union members Volpe testified that Bennett, after hearing that the who had crossed the picket line could neither be heavily Union had met with the unit employees regarding the fined nor retaliated against. This would permit their con- filing of charges, said that the parties had another prob- tinued employment as key people by Respondent. The iem and that Respondent wanted to pick and choose Union refused to agree to the offer. Thereafter, Bennett from among those strikers who returned. Volpe recalled suggested, and the Union rejected, an agreement for an that the Union's response was that it could never agree initial 1-year agency shop to be followed by the reinstitu- to that, that the meeting broke up, and that the bargain- tion of a union-shop provision in the second year of a 2- ers returned to the picket line. Volpe could not recall year contract. The Union told Respondent that it would any linkage between the alleged violence and Respond- not agree to any form of agency shop. ent's desire to pick and choose. As aforesaid, I find that David Murray recalled that at that point Attorney there was a linkage mentioned by Respondent between Bennett asked whether the Union could discharge the its desire to pick and choose from among returning strik- employees who crossed the picket line and the Union re- ers and its appraisal of whether the strikers were en- sponded that it could not and even gave reasons (not dis- gaged in acts of violence or intimidation. closed in this record either by direct examination or cross-examination) why it could not cause a discharge of 3. The June 24 collective-bargaining session such employees. David Murray testified that after the according to Respondent's witnesses Union again said that the union officials would not retali- ate, and would even recommend to its members that they Hefford recalled that the Federal mediator, at the con- take no reprisals but could not guarantee that, Bennett clusion of the June 17 collective-bargaining session, said that he agreed that the Union had done everything stated that he saw the possibility of progress if the retali- possible and that he understood and approved of the ation or "retribution" issue could be addressed. He re- Union's action. I do not credit David Murray's further called that the opening of the June 24 session concerned testimony that Bennett then said that the parties had "an the question of the Company's desire for assurances pro- agreement." I do, however, credit Volpe's testimony that tecting the employees who crossed the picket line during at the June 24 meeting the Union told Respondent that, the strike; and that, after the Union rejected Bennett's in the intervening week since the June 17 meeting, the suggestions both of an agency shop and of a secondary union committee had met with the employee-members variation requiring a union shop following 1 year of an and that the members would not cause problems with re- agency shop, Bennett said that the Union had also reject- prisals against members who had crossed the picket line. e d an intermediate position taken during the period be- This substantially corroborates David Murray's testimo- tween t h e collective-bargaining sessions (of a $25 fine for ny that at one point Bennett said that he agreed that the members who had crossed the picket line) and that it Union had done everything possible and that he under- n o w seemed to him that the Union actually did want to stood and approved of the Union's conduct with regard take retaliation against those members who had crossed to gaining as much as possible from the membership with t h e picket lin e during the strike. Ullrich then added that regard to an assurance and agreement against the filing Respondent was in the business of selling bread "not of retaliatory charges by union members against those people." who crossed the picket line. Hefford and Ullrich denied that any "pick and According to the General Counsel's witnesses, particu- choose" statement was ever made by Respondent, that larly David Murray, Volpe, and International Union Respondent ever expressed the desire to pick and choose Representative Thibodeau (who on June 24 had replaced from among returning strikers, and that seniority among McLellan), Bennett then said, after hearing union assur- returning picketers was ever discussed; and both assert ances (there would be no trouble from the union mem- that the meeting broke up only after the Union could not bership in filing charges against members who had give assurances to Respondent against retaliation or retri- crossed the picket line), that in order to help insure the bution against members who had crossed the picket line.4 protection of employees who had crossed the picket line from retaliation by individual members Respondent re- 4 To the extent Respondent asserts (br., p. 4) that at the June 24 session quired the right to "pick and choose" from among the Respondent stated that the issue of union reprisals against nonstriking cm- ployees who returned to work was no longer in issue, such aswertion is returning striking employees Since some Of the strikers not supported by the evidence and is rejected. Similarly rejected is Re- were responsible for alleged acts of violence and intimi- Continued 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ullrich testified that the only statement remotely con- 10 economic strike into an unfair labor practice strike cerning "picking and choosing" was made at the June 17 upon Respondent's insistence on such conditions. meeting when he said that, if Respondent caught any of Thus, the resolution of the question of whether the its employees engaging in violence or intimidation, Re- parties agreed to Respondent's 30-cent-per-hour econom- spondent would prosecute such employees and they ic package or, indeed, whether the Union agreed to would then have a hard time returning to work for Re- submit to its membership the 30-cent-per-hour package spondent. with a recommendation for acceptance (as the General Thus, Hefford and Ullrich denied that any "pick and Counsel suggests) or with a neutural recommendation (as choose" condition was attached to any agreement. Respondent argues) is not dispositive. The question to be Rather, Ullrich and Hefford testified that the June 24 resolved with regard to Respondent's bargaining stance collective-bargaining session broke up because and after is solely whether it refused to bargain within the mean- Bennett asserted that the Union evidently desired to take ing of Section 8(a)(5) of the Act by insisting on either or retaliation against the members who had passed through both of the elements alleged in paragraph 13 of the com- the picket line and Ullrich said that Respondent sold plaint, as set forth above. bread and not people. They thus deny not only that there I R's i r i - was a "pick and choose" condition attached by them If Respondent's witnesses are to be believed, Respond- was a "pick and choose" condition attached by them ent's main bargaining issue and problem was its desire after reaching an agreement on union retaliation (as the ent's man arainin issue and problem was its desire for, and demand to receive, assurances from the Union General Counsel's witnesses testified), but also that there that there wod be no r etaliation against the Unon was any agreement on retaliation. They testified that the e r w o d e t n ginst the n June 24 session broke up only because of the Union's re- embers who had assed through its picket line and fusal to give assurances from its members that there worked during the strike. These assurances were of two would be no retaliation against the members who had types: () assurances with regard to their physical safety passed through the picket line and worked during the and (2) assurances that Respondent would neither levy strike. fines against them nor cause them to lose union member- ship, nor, in any event, exercise any rights to have them 4. Discussion and conclusions discharged or retaliated against so that the employees would either quit or no longer be able to work for Re- The complaint (par. 13) alleges a violation of Section spondent. Thus, Hefford and Ullrich insisted that Re- 8(a)(5) of the Act because Respondent, on or about June spondent and the Unin cld nt are n te 24, 1980, demanded as conditions of agreement that (I) spo n d en an d th e n o n c o u l n o t ag ree o n t h e n o n th24, 19, demanded as conditions of agreement that (m ) ability to give sufficient assurances against retaliation the Union agree not to take reprisals against union mem- against the union members who had worked during the bers who did not honor the picket line, and (2) Respond- te uon ebr wohd oed d strike and continue to work for Respondent. ent be given power to choose the striking employees who would be allowed to return to work. In addition Since the Union denied knowledge of and responsibili- the complaint, as amended at the hearing, alleges that the ty for the act of alleged violence and intimidation, and economic strike of June 10 was converted, on June 24, Respondent, apart from physical safety, was most con- 1980, by Respondent's demand for the imposition of the cerned about (1) the filing of charges by union members aforesaid conditions, into an unfair labor practice strike. which might result in fines against key personnel who At the hearing the parties appeared to take the posi- might then leave Respondent's employ and (2) the power tion that in order to resolve the above issues it was nec- of the Union to cause key personnel to lose union mem- essary to first decide whether the parties had reached an bership and perhaps thereby run afoul of the contract's agreement on an economic package, and, if so, whether union-security clause (G.C. Exh. 2, art. I) requiring such an agreement established a basis for violation of the union membership as a condition of employment, I con- Act if the only remaining elements at issue were the dude that what caused impasse here was the Union's in- questions of a union guarantee against reprisals and al- ability to satisfy Respondent's desires with regard to pro- leged demand by Respondent of a right to pick and tecting its key personnel from retaliatory action by the choose from among returning striking employees. The union membership. Thus, Ullrich testified, with regard to Board precedents fail to suggest that an agreement on Respondent's demand that the "key personnel" be pro- some or all economic or other elements is necessary in tected, that on June 24 Attorney Bennett said that the order to establish an 8(a)(5) violation. Union's rejection of both the "agency-shop device" and The instant case is not concerned with surface bargain- the "small fine device" forced Bennett to affirmatively ing, unlawful action to forestall reaching an agreement, conclude that the Union did want to take retaliation or alleged overall bad-faith bargaining in violation of against the members who had worked behind the picket Section 8(a)(5). Rather, it is concerned with the narrow line. Thus, after Ullrich said that Respondent sold bread problem of whether Respondent unlawfully insisted to and not people, the parties left and there were no further "impasse" on matters which Sections 8(a)(5) and 8(d) of bargaining sessions or meetings. the Act do not permit to form the basis of an "impasse" Respondent's demand as a condition of agreement that and whether such tactic on June 24 converted the June the Union, in substance, guarantee by contract provision that its members would not take action or file charges spondent's contention (br., p. 5) that impasse resulted from Respondent's which would result in discipline, including fines, of the insistence on a new union-security clause in the contract. Respondent, in members who crossed the picket line and worked (and any event, appears to admit (br., p. 19) that it insisted on a guarantee against reprisals binding on all union members as a condition of agree- continue to work) for Respondent, obviously related to ment. Alone, impasse on such an issue is unlawful, matters of internal union affairs. The Board has clearly would thn have ahard tim returnig to wor for Re- submit t its memership te 30-cen-per-hou-packag 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ullrich testified that the only statement remotely con- 10 economic strike into an unfair labor practice strike cerning "picking and choosing" was made at the June 17 upon Respondent's insistence on such conditions. meeting when he said that, if Respondent caught any of Thus, the resolution of the question of whether the its employees engaging in violence or intimidation, Re- parties agreed to Respondent's 30-cent-per-hour econom- spondent would prosecute such employees and they ic package or, indeed, whether the Union agreed to would then have a hard time returning to work for Re- submit to its membership the 30-cent-per-hour package spondent. with a recommendation for acceptance (as the General Thus, Hefford and Ullrich denied that any "pick and Counsel suggests) or with a neutural recommendation (as choose" condition was attached to any agreement. Respondent argues) is not dispositive. The question to be Rather, Ullrich and Hefford testified that the June 24 resolved with regard to Respondent's bargaining stance collective-bargaining session broke up because and after is solely whether it refused to bargain within the mean- Bennett asserted that the Union evidently desired to take ing of Section 8(a)(5) of the Act by insisting on either or retaliation against the members who had passed through both of the elements alleged in paragraph 13 of the com- the picket line and Ullrich said that Respondent sold plaint, as set forth above. bread and not people. They thus deny not only that there If Rsne' we a to be beli Reo- was a "pick and choose" condition attached by them f ^^"dent s witnesses are to be believed, Respond- after reaching an agreement on union retaliation (as the fe n tr s m al ndemand to rssue and problem was its desire General Counsel's witnesses testified), but also that there at t erwo d b o r e ta l ito aganst the Union was any agreement on retaliation. They testified that the t h a t t he r e w o u ld be no ret alh atuo n against the Union's June 24 session broke up only because of the Union's re- l em b er s w h o h ad Passed through its picket line and fusal to give assurances from its members that there worked during the strike. These assurances were of two would be no retaliation against the members who had apnd (2) assurances with regard to their physical safety passed through the picket line and worked during the an (l W assurances that Respondent would neither levy psrike. fine s against them nor cause them to lose union member- ship, nor, in any event, exercise any rights to have them 4. Discussion and conclusions discharged or retaliated against so that the employees The complaint (par. 13) alleges a violation of Section would either quit or no longer be able to work for Re- of\e\ copan pr.i- . n3 alle a vaion of Seti spondent. Thus, Hefford and Ullrich insisted that Re- 8(a)(5) of the Act because Respondent, on or about June sponden. T Hef r a Ur i tha Re- 24, 1980, demanded as conditions of agreement that (1) s p o n de n t an d th e Uni o n c o u ld n o t ag r ee o n t h e Unio n 's 24,190, emndd a cndtios f aremet tat(I ability to give sufficient assurances against retaliation the Union agree not to take reprisals against union mem- a gain t th eunion m ember h adw se ring the bers who did not honor the picket line, and (2) Respond- st rik ead o n wo rk f or R ond ent. ent be given power to choose the striking employees and t ontdnied knor ofsp ndenb who would be allowed to return to work. In addition, Since the Union denied knowledge of and responsibili- the complaint, as amended at the hearing, alleges that the t y f o r th e a c t pr o f rm phoynce and intimidation, and economic strike of June 10 was converted, on June 24,Respondent, apart from physical safety, was most con- 1980, by Respondent's demand for the imposition of the c e r n e d ab o u t (1) t h e riling o f charges by u nio n members aforesaid conditions, into an unfair labor practice strike. w h ic h might r es u l t i n fi n e s against key personnel who At the hearing the parties appeared to take the posi- might t h en l e a v e Respondent's employ and (2) the power tion that in order to resolve the above issues it was nec- o f t h e Unio n to cause key personnel to lose union mem- essary to first decide whether the parties had reached an bership and perhaps thereby run afoul of the contract's agreement on an economic package, and, if so, whether union-security clause (G.C. Exh. 2, art. I) requiring such an agreement established a basis for violation of the union membership as a condition of employment, I con- Act if the only remaining elements at issue were the clu d e that what caused impasse here was the Union's in- questions of a union guarantee against reprisals and al- ability to satisfy Respondent's desires with regard to pro- leged demand by Respondent of a right to pick and tecting its key personnel from retaliatory action by the choose from among returning striking employees. The union membership. Thus, Ullrich testified, with regard to Board precedents fail to suggest that an agreement on Respondent's demand that the "key personnel" be pro- some or all economic or other elements is necessary in tected, that on June 24 Attorney Bennett said that the order to establish an 8(a)(5) violation. Union's rejection of both the "agency-shop device" and The instant case is not concerned with surface bargain- the "small fine device" forced Bennett to affirmatively ing, unlawful action to forestall reaching an agreement, conclude that the Union did want to take retaliation or alleged overall bad-faith bargaining in violation of against the members who had worked behind the picket Section 8(a)(5). Rather, it is concerned with the narrow line. Thus, after Ullrich said that Respondent sold bread problem of whether Respondent unlawfully insisted to and not people, the parties left and there were no further "impasse" on matters which Sections 8(a)(5) and 8(d) of bargaining sessions or meetings. the Act do not permit to form the basis of an "impasse" Respondent's demand as a condition of agreement that and whether such tactic on June 24 converted the June the Union, in substance, guarantee by contract provision that its members would not take action or file charges spondent's contention (br., p. 5) that impasse resulted from Respondent's which would result in discipline, including fines, of the insistence on a new union-security clause in the contract. Respondent, in members who Crossed the picket line and worked (and any event, appears to admit (br., p. 19) that it insisted on a guarantee against reprisals binding on all union members as a condition of agree- continue to work) for Respondent, obviously related to ment. Alone, impasse on such an issue is unlawful,.matters of internal union affairs. The Board has clearly 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ullrich testified that the only statement remotely con- 10 economic strike into an unfair labor practice strike cerning "picking and choosing" was made at the June 17 upon Respondent's insistence on such conditions. meeting when he said that, if Respondent caught any of Thus, the resolution of the question of whether the its employees engaging in violence or intimidation, Re- parties agreed to Respondent's 30-cent-per-hour econom- spondent would prosecute such employees and they ic package or, indeed, whether the Union agreed to would then have a hard time returning to work for Re- submit to its membership the 30-cent-per-hour package spondent. with a recommendation for acceptance (as the General Thus, Hefford and Ullrich denied that any "pick and Counsel suggests) or with a neutural recommendation (as choose" condition was attached to any agreement. Respondent argues) is not dispositive. The question to be Rather, Ullrich and Hefford testified that the June 24 resolved with regard to Respondent's bargaining stance collective-bargaining session broke up because and after is solely whether it refused to bargain within the mean- Bennett asserted that the Union evidently desired to take ing of Section 8(a)(5) of the Act by insisting on either or retaliation against the members who had passed through both of the elements alleged in paragraph 13 of the com- the picket line and Ullrich said that Respondent sold plaint, as set forth above. bread and not people. They thus deny not only that there If R' we a to be beli Reo- was a "pick and choose" condition attached by them f ^^"dent s witnesses are to be believed, Respond- after reaching an agreement on union retaliation (as the fe n tr s m al ndemndto ec issue and problem was its desire General Counsel's witnesses testified), but also that there at t erwo d b o r e ta l ito aganst the Union was any agreement on retaliation. They testified that the t h a t t he r e w o u ld be no ret alh atuo n against the Union's June 24 session broke up only because of the Union's re- l em b er s w h o h ad Passed through its picket line and fusal to give assurances from its members that there worked during the strike. These assurances were of two would be no retaliation against the members who had apnd (2) assurances with regard to their physical safety passed through the picket line and worked during the an (l W assurances that Respondent would neither levy psrike. fine s against them nor cause them to lose union member- ship, nor, in any event, exercise any rights to have them 4. Discussion and conclusions discharged or retaliated against so that the employees The complaint (par. 13) alleges a violation of Section would either quit or no longer be able to work for Re- of\e\ copan pr.i- . n3 alle a vaion of Seti spondent. Thus, Hefford and Ullrich insisted that Re- 8(a)(5) of the Act because Respondent, on or about June sponden. T Hef r a Ur i tha Re- 24, 1980, demanded as conditions of agreement that (1) s p o n de n t an d th e Uni o n c o u ld n o t ag r ee o n t h e Unio n 's 24,190, emndd a cndtios f aremet tat(I ability to give sufficient assurances against retaliation the Union agree not to take reprisals against union mem- a gain t th eunion m ember h adw se ring the bers who did not honor the picket line, and (2) Respond- st rik ead o n wo rk f or R ond ent. ent be given power to choose the striking employees and t ontdnied knor ofsp ndenb who would be allowed to return to work. In addition, Since the Union denied knowledge of and responsibili- the complaint, as amended at the hearing, alleges that the t y f o r th e a c t pr o f a ll ege dphonce and intimidation, and economic strike of June 10 was converted, on June 24,Respondent, apart from physical safety, was most con- 1980, by Respondent's demand for the imposition of the c e r n e d ab o u t (1) t h e riling o f charges by union members aforesaid conditions, into an unfair labor practice strike. w h ic h might r es u l t i n fi n e s against key personnel who At the hearing the parties appeared to take the posi- might t h en l e a v e Respondent's employ and (2) the power tion that in order to resolve the above issues it was nec- o f t h e Unio n to cause key personnel to lose union mem- essary to first decide whether the parties had reached an bership and perhaps thereby run afoul of the contract's agreement on an economic package, and, if so, whether union-security clause (G.C. Exh. 2, art. I) requiring such an agreement established a basis for violation of the union membership as a condition of employment, I con- Act if the only remaining elements at issue were the clude that what caused impasse here was the Union's in- questions of a union guarantee against reprisals and al- ability to satisfy Respondent's desires with regard to pro- leged demand by Respondent of a right to pick and tecting its key personnel from retaliatory action by the choose from among returning striking employees. The union membership. Thus, Ullrich testified, with regard to Board precedents fail to suggest that an agreement on Respondent's demand that the "key personnel" be pro- some or all economic or other elements is necessary in tected, that on June 24 Attorney Bennett said that the order to establish an 8(a)(5) violation. Union's rejection of both the "agency-shop device" and The instant case is not concerned with surface bargain- the "small fine device" forced Bennett to affirmatively ing, unlawful action to forestall reaching an agreement, conclude that the Union did want to take retaliation or alleged overall bad-faith bargaining in violation of against the members who had worked behind the picket Section 8(a)(5). Rather, it is concerned with the narrow line. Thus, after Ullrich said that Respondent sold bread problem of whether Respondent unlawfully insisted to and not people, the parties left and there were no further "impasse" on matters which Sections 8(a)(5) and 8(d) of bargaining sessions or meetings. the Act do not permit to form the basis of an "impasse" Respondent's demand as a condition of agreement that and whether such tactic on June 24 converted the June the Union, in substance, guarantee by contract provision that its members would not take action or file charges spondent's contention (br., p. 5) that impasse resulted from Respondent's which would result in discipline, including fines, of the insistence on a new union-security clause in the contract. Respondent, in members who Crossed the picket line and worked (and any event, appears to admit (br., p. 19) that it insisted on a guarantee against reprisals binding on all union members as a condition of agree- continue to work) for Respondent, obviously related to ment. Alone, impasse on such an issue is unlawful,.matters of internal union affairs. The Board has clearly 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ullrich testified that the only statement remotely con- 10 economic strike into an unfair labor practice strike cerning "picking and choosing" was made at the June 17 upon Respondent's insistence on such conditions. meeting when he said that, if Respondent caught any of Thus, the resolution of the question of whether the its employees engaging in violence or intimidation, Re- parties agreed to Respondent's 30-cent-per-hour econom- spondent would prosecute such employees and they ic package or, indeed, whether the Union agreed to would then have a hard time returning to work for Re- submit to its membership the 30-cent-per-hour package spondent. with a recommendation for acceptance (as the General Thus, Hefford and Ullrich denied that any "pick and Counsel suggests) or with a neutural recommendation (as choose" condition was attached to any agreement. Respondent argues) is not dispositive. The question to be Rather, Ullrich and Hefford testified that the June 24 resolved with regard to Respondent's bargaining stance collective-bargaining session broke up because and after is solely whether it refused to bargain within the mean- Bennett asserted that the Union evidently desired to take ing of Section 8(a)(5) of the Act by insisting on either or retaliation against the members who had passed through both of the elements alleged in paragraph 13 of the com- the picket line and Ullrich said that Respondent sold plaint, as set forth above. bread and not people. They thus deny not only that there If R' we a to be beli Reo- was a "pick and choose" condition attached by them f ^^"dent s witnesses are to be believed, Respond- after reaching an agreement on union retaliation (as the fe n tr s m al ndemndto ec issue and problem was its desire General Counsel's witnesses testified), but also that there at t erwo d b o r e ta l ito aganst the Union was any agreement on retaliation. They testified that the t h a t t he r e w o u ld be no ret alh atuo n against the Union's June 24 session broke up only because of the Union's re- l em b er s w h o h ad Passed through its picket line and fusal to give assurances from its members that there worked during the strike. These assurances were of two would be no retaliation against the members who had apnd (2) assurances with regard to their physical safety passed through the picket line and worked during the an (l W assurances that Respondent would neither levy strike. fine s against them nor cause them to lose union member- ship, nor, in any event, exercise any rights to have them 4. Discussion and conclusions discharged or retaliated against so that the employees The complaint (par. 13) alleges a violation of Section would either quit or no longer be able to work for Re- of\e\ copan pr.i- . n3 alle a vaion of Seti spondent. Thus, Hefford and Ullrich insisted that Re- 8(a)(5) of the Act because Respondent, on or about June sponden. T Hef r a Ur i tha Re- 24, 1980, demanded as conditions of agreement that (1) s p o n de n t an d th e Uni o n c o u ld n o t ag r ee o n t h e Unio n 's 24,190, emndd a cndtios f aremet tat(I ability to give sufficient assurances against retaliation the Union agree not to take reprisals against union mem- a gain t th eunion m ember h adw se ring the bers who did not honor the picket line, and (2) Respond- st rik ead o n wo rk f or R ond ent. ent be given power to choose the striking employees and t ontdnied knor ofsp ndenb who would be allowed to return to work. In addition, Since the Union denied knowledge of and responsibili- the complaint, as amended at the hearing, alleges that the t y f o r th e a c t pr o f a ll ege dphonce and intimidation, and economic strike of June 10 was converted, on June 24,Respondent, apart from physical safety, was most con- 1980, by Respondent's demand for the imposition of the c e r n e d ab o u t (1) t h e riling o f charges by union members aforesaid conditions, into an unfair labor practice strike. which might result in fines against key personnel who At the hearing the parties appeared to take the posi- might t h en l e a v e Respondent's employ and (2) the power tion that in order to resolve the above issues it was nec- o f t h e Unio n to cause key personnel to lose union mem- essary to first decide whether the parties had reached an bership and perhaps thereby run afoul of the contract's agreement on an economic package, and, if so, whether union-security clause (G.C. Exh. 2, art. I) requiring such an agreement established a basis for violation of the union membership as a condition of employment, I con- Act if the only remaining elements at issue were the clude that what caused impasse here was the Union's in- questions of a union guarantee against reprisals and al- ability to satisfy Respondent's desires with regard to pro- leged demand by Respondent of a right to pick and tecting its key personnel from retaliatory action by the choose from among returning striking employees. The union membership. Thus, Ullrich testified, with regard to Board precedents fail to suggest that an agreement on Respondent's demand that the "key personnel" be pro- some or all economic or other elements is necessary in tected, that on June 24 Attorney Bennett said that the order to establish an 8(a)(5) violation. Union's rejection of both the "agency-shop device" and The instant case is not concerned with surface bargain- the "small fine device" forced Bennett to affirmatively ing, unlawful action to forestall reaching an agreement, conclude that the Union did want to take retaliation or alleged overall bad-faith bargaining in violation of against the members who had worked behind the picket Section 8(a)(5). Rather, it is concerned with the narrow line. Thus, after Ullrich said that Respondent sold bread problem of whether Respondent unlawfully insisted to and not people, the parties left and there were no further "impasse" on matters which Sections 8(a)(5) and 8(d) of bargaining sessions or meetings. the Act do not permit to form the basis of an "impasse" Respondent's demand as a condition of agreement that and whether such tactic on June 24 converted the June the Union, in substance, guarantee by contract provision that its members would not take action or file charges spondent's contention (br., p. 5) that impasse resulted from Respondent's which would result in discipline, including fines, of the insistence on a new union-security clause in the contract. Respondent, in members who Crossed the picket line and worked (and any event, appears to admit (br., p. 19) that it insisted on a guarantee against reprisals binding on all union members as a condition of agree- continue to work) for Respondent, obviously related to ment. Alone, impasse on such an issue is unlawful,.matters of internal union affairs. The Board has clearly COTE BROS. BAKERY, INC. 783 held that internal union affairs are not mandatory sub- against the members who had passed through the picket jects of bargaining s included within the terms, wages, line, although not a guarantee, were understood by Ben- hours, or other terms or conditions of employment. nett and acceptable by him. They also testified that Ben- While not illegal subjects of bargaining, they are merely nett said that there was a further problem, however, in "nonmandatory" subjects of bargaining. Nordstorm, Inc., that Respondent insisted on the right to pick and choose supra; Fetzer Broadcasting Company, 227 NLRB 1377, from among the remaining striking employees for the ex- 1387 (1977). An employer may not insist that a union isting jobs in their return to work. accept provisions which intrude on the disciplinary Insistence to impasse on such a right would violate powers over its members expressly reserved to unions by Section 8(a)(5) of the Act since many, if not most, of the the proviso to Section 8(b)(l)(A) of the Act.6 Independ- strikers apparently had not been permanently replaced as ent Stave Company, 175 NLRB 156, 159 (1969). In Nord- of June 24 and were unfair labor practice strikers. While storm, Inc., supra, the Board held that a proposal that the issue of reinstatement of economic strikers may be a employees who crossed the picket line be granted amnes- mandatory subject of bargaining (Nordstrom, Inc., supra ty from union discipline was a nonmandatory subject of at 610, fn. 16, citing Pepsi-Cola Bottling Co. of Miami, bargaining. Inc., 186 NLRB 477 (1970); Midwestern Instruments, Inc., Thus, if Respondent's witnesses' version of the basis for 133 NLRB 1132, 1141 (1961)), here some of the strikers disagreement and the breakup of bargaining at the June appear to be unfair labor practice strikers. If an agree- 24 collective-bargaining session is credited, the parties ment to treat unfair labor practice strikers as economic reached disagreement, and ceased thereafter to bargain, strikers for purposes of reinstatement is of no effect and on the Union's refusal to accede to Respondent's demand is in derogation of the strikers' rights and contravenes that the Union agree that there would be no union retri- Board policies (Nordstrom, Inc., supra, Wooster Division of bution from its members against the members who had Borg-Warner Corp., 121 NLRB 1492, 1495 (1958)), then crossed the picket line. Under the above cited cases, Re- an employer's demand to impasse that it be accorded the spondent's insistence on such a clause relates to a non- right unilaterally to decide whom to reinstate from mandatory subject of bargaining, and insistence to im- among unfair labor practice strikers would be insisting passe, as here, on such a nonmandatory subject of bar- on a right the Union may not give; i.e., an unlawful con- gaining violates Section 8(a)(5) of the Act.' As I have dition under N.L.R.B. v. Wooster Division of Borg-Warner said above, it is immaterial whether the parties had Corp., spra. Insistence to impasse on such a demand reached agreement on other mandatory subjects of bar- would violate Section 8(a)(1) and (5) of the Act. gaining. Respondent's insistence, as a condition of agree- As above noted, however, I need not reach or decide ment, upon the Union's agreeing to a nonmandatory sub- this issue since the remedy would be the same if agree- ject of bargaining violates Section 8(a)(5) and (1) of the ment were reached on the issue of union retaliation but a Act. I will recommend that Respondent cease bargaining new impasse occurred on Respondent's alleged demand to impasse on this, and any other nonmandatory issue. of unilateral power to pick and choose among returning It is thus, it seems to me, legally unnecessary for reme- strikers. dial purposes to reach or decide the further question posed by any crediting of the General Counsel's wit- F. The Strike as of June 24, 1980 nesses who testified that on June 24 agreement was reached on the issue of retaliation when Respondent, As above noted, I regard as immaterial and, in any through Respondent's attorney, Bennett, said that the case, not dispositive the resolution of the question wheth- Union's efforts in having its members not make charges er the parties had reached agreement on many or, indeed, all other subjects of bargaining on June 24. The issue with regard to the conversion of the admitted June Mandatory subjects of bargaining (Nordstorm, Inc., 229 NLRB 601, w r t 609 (1977), citing International Union of Operating Engineers. Local Union 10 economic strike into an unfair labor practice strike on No 12 (Associated General Contractors of America, Inc., etc.), 187 NLRB June 24 is whether unfair labor practices on June 24 pre- 430, 432 (1970)) "are those comprised in the phrase 'wages, hours, and cipitated, in whole or in part, the continuation of the other terms and conditions of employment' as set forth in Section 8(d) of strike. Again, it is not a question of whether there were the Act. While the language is broad, parameters have been established, although not quantified. The touchstone is whether . . the proposed open issues involving mandatory subjects of bargaining clause sets a term or condition of employment or regulates the relation which remained unsettled; rather, the issue is whether between the employer and its employees." Cf. First National Maintenance Respondent's insistence upon nonmandatory (or unlaw- Corp. v. N.LR.B., 452 U.S. 666(1981). ful) subjects of bargaining, in whole or in part, caused * The proviso to Sec. 8(b)(IXA) states: "[T]his paragraph shall not impair the right of a labor organization to prescribe its own rules with the continuation of the strike. Tufts Brothers, Inc., 235 respect to the acquisition or retention of membership therein." NLRB 808, 810 (1978). While it might be argued that ' The Supreme Court, in N.LR.B. v. Wooster Division of Borg-Warner there was no agreement on the economic package, there Corp., 356 U.S. 342, 349 (1958), cited in Nordstrom, Inc., supra. at 609: is no question that the economic package appeared on its [G]ood faith does not license the employer to refuse to enter into way to resolution and, indeed, would have been submit- agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining .... (S]uch con- ted to the unit by the union representatives (according to duct is, in substance, a refusal to bargain about the subjects that are Respondent's witnesses, without the union's recommen- within the scope of mandatory bargaining. This does not mean that dation, by a secret-ballot vote, which procedure was sat- bargaining is to be confined to the statutory subjects .... But it isfactory to Respondent). What caused the breakup of does not follow that, because the company may propose these [nonman- datory] clauses. it can lawfully insist upon them as a condition to any the June 24 collective-bargaining session and the continu- agreement. [Emphasis supplied. ation of the strike was Respondent's insistence (on the COTE BROS. BAKERY, INC. 783 held that internal union affairs are not mandatory sub- against the members who had passed through the picket jects of bargaining' included within the terms, wages, line, although not a guarantee, were understood by Ben- hours, or other terms or conditions of employment. nett and acceptable by him. They also testified that Ben- While not illegal subjects of bargaining, they are merely nett said that there was a further problem, however, in "nonmandatory" subjects of bargaining. Nordstorm, Inc., that Respondent insisted on the right to pick and choose supra; Fetzer Broadcasting Company, 227 NLRB 1377, from among the remaining striking employees for the ex- 1387 (1977). An employer may not insist that a union isting jobs in their return to work. accept provisions which intrude on the disciplinary Insistence to impasse on such a right would violate powers over its members expressly reserved to unions by Section 8(a)(5) of the Act since many, if not most, of the the proviso to Section 8(b)(l)(A) of the Act.6 Independ- strikers apparently had not been permanently replaced as ent Slave Company, 175 NLRB 156, 159 (1969). In Nord- of June 24 and were unfair labor practice strikers. While storm, Inc., supra, the Board held that a proposal that the issue of reinstatement of economic strikers may be a employees who crossed the picket line be granted amnes- mandatory subject of bargaining (Nordstrom, Inc., supra ty from union discipline was a nonmandatory subject of at 610, fn. 16, citing Pepsi-Cola Bottling Co. of Miami, bargaining. Inc., 186 NLRB 477 (1970); Midwestern Instruments, Inc., Thus, if Respondent's witnesses' version of the basis for 133 NLRB 1132, 1141 (1961)), here some of the strikers disagreement and the breakup of bargaining at the June appear to be unfair labor practice strikers. If an agree- 24 collective-bargaining session is credited, the parties ment to treat unfair labor practice strikers as economic reached disagreement, and ceased thereafter to bargain, strikers for purposes of reinstatement is of no effect and on the Union's refusal to accede to Respondent's demand is in derogation of the strikers' rights and contravenes that the Union agree that there would be no union retri- Board policies (Nordstrom, Inc., supra: Wooster Division of bution from its members against the members who had Borg-Warner Corp., 121 NLRB 1492, 1495 (1958)), then crossed the picket line. Under the above cited cases, Re- an employer's demand to impasse that it be accorded the spondent's insistence on such a clause relates to a non- right unilaterally to decide whom to reinstate from mandatory subject of bargaining, and insistence to im- among unfair labor practice strikers would be insisting passe, as here, on such a nonmandatory subject of bar- on a right the Union may not give; i.e., an unlawful con- gaining violates Section 8(a)(5) of the Act.' As I have dition under N.LR.B. v. Wooster Division of Borg-Warner said above, it is immaterial whether the parties had Corp., supra. Insistence to impasse on such a demand reached agreement on other mandatory subjects of bar- would violate Section 8(a)(l) and (5) of the Act. gaining. Respondent's insistence, as a condition of agree- As above noted, however, I need not reach or decide ment, upon the Union's agreeing to a nonmandatory sub- this issue since the remedy would be the same if agree- ject of bargaining violates Section 8(a)(5) and (1) of the ment were reached on the issue of union retaliation but a Act. I will recommend that Respondent cease bargaining new impasse occurred on Respondent's alleged demand to impasse on this, and any other nonmandatory issue. of unilateral power to pick and choose among returning It is thus, it seems to me, legally unnecessary for reme- strikers. dial purposes to reach or decide the further question posed by any crediting of the General Counsel's wit- F. The Strike as of June 24, 1980 nesses who testified that on June 24 agreement was reached on the issue of retaliation when Respondent, A s a b o v e noted, I regard as immaterial and, in any through Respondent's attorney, Bennett, said that the c a se , not dispositive the resolution of the question wheth- Union's efforts in having its members not make charges e r the parties had reached agreement on many or, indeed, all other subjects of bargaining on June 24. The ~~," ,. ,. . ,., , , ,-,,.„ nn „» issue with regard to the conversion of the admitted June 'Mandatory subjects of bargaining (Nordstorm, Inc., 229 NLRB 601,, i w r d t t c o t a Jn 609 (1977), citing International Union ofOperating Engineers. Local Union 10 economic Strike into an unfair labor practice Strike on No. 12 (Associated General Contractors ofAmerica, Inc, etc.), 187 NLRB June 24 is whether unfair labor practices on June 24 pre- 430, 432 (1970)) "are those comprised in the phrase 'wages, hours, and cipitated, in whole or in part, the continuation of the other terms and conditions of employment' as set forth in Section 8(d) of strike. Again, it is not a question of whether there were the Act. while the language is broad, parameters have been established, although noi quantified. The touchstone is whether . . the proposed open issues involving mandatory subjects of bargaining clause sets a term or condition of employment or regulates the relation which remained unsettled; rather, the issue is whether between the employer and its employees." Cf. First National Maintenance Respondent's insistence Upon nonmandatory (or unlaw- Corp.v. N.LR.B., 452 U.S. 666 (1981). ful) subjects of bargaining, in whole or in part, caused I The proviso to Sec. 8(b)(lXA) states: "[11his paragraph shall not impair the right of a labor organization to prescribe its own rules with the continuation of the Strike. Tufts Brothers, Inc., 235 respect to the acquisition or retention of membership therein." NLRB 808, 810 (1978). While it might be argued that I The Supreme Court, in N.L.R.B. v. Wooster Division of Borg-Warner there was no agreement on the economic package, there Corp., 356 U.S. 342, 349 (1958), cited in Nordstrom, Inc., supra. at 609: is no question that the economic package appeared on its [GOood faith does not license the employer to refuse to enter into way to resolution and, indeed, would have been submit- agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining .... (S]uch con- ted to the unit by the union representatives (according to duct is, in substance, a refusal to bargain about the subjects that are Respondent's witnesses, without the union's recommen- within the scope of mandatory bargaining. This does not mean that dation, by a Secret-ballot vote, which procedure was sat- bargaining is to be confined to the statutory subjects.... But iit isfactory to Respondent). What caused the breakup of does not follow that, because the company may propose these [nonman- datory] clauses, it can lawfully insist upon them as a condition to any the June 24 collective-bargaining session and the continu- agreement. [Emphasis supplied.])ation of the strike was Respondent's insistence (on the COTE BROS. BAKERY, INC. 783 held that internal union affairs are not mandatory sub- against the members who had passed through the picket jects of bargaining' included within the terms, wages, line, although not a guarantee, were understood by Ben- hours, or other terms or conditions of employment. nett and acceptable by him. They also testified that Ben- While not illegal subjects of bargaining, they are merely nett said that there was a further problem, however, in "nonmandatory" subjects of bargaining. Nordstorm, Inc., that Respondent insisted on the right to pick and choose supra; Fetzer Broadcasting Company, 227 NLRB 1377, from among the remaining striking employees for the ex- 1387 (1977). An employer may not insist that a union isting jobs in their return to work. accept provisions which intrude on the disciplinary Insistence to impasse on such a right would violate powers over its members expressly reserved to unions by Section 8(a)(5) of the Act since many, if not most, of the the proviso to Section 8(b)(l)(A) of the Act.6 Independ- strikers apparently had not been permanently replaced as ent Slave Company, 175 NLRB 156, 159 (1969). In Nord- of June 24 and were unfair labor practice strikers. While storm, Inc., supra, the Board held that a proposal that the issue of reinstatement of economic strikers may be a employees who crossed the picket line be granted amnes- mandatory subject of bargaining (Nordstrom, Inc., supra ty from union discipline was a nonmandatory subject of at 610, fn. 16, citing Pepsi-Cola Bottling Co. of Miami, bargaining. Inc., 186 NLRB 477 (1970); Midwestern Instruments, Inc., Thus, if Respondent's witnesses' version of the basis for 133 NLRB 1132, 1141 (1961)), here some of the strikers disagreement and the breakup of bargaining at the June appear to be unfair labor practice strikers. If an agree- 24 collective-bargaining session is credited, the parties ment to treat unfair labor practice strikers as economic reached disagreement, and ceased thereafter to bargain, strikers for purposes of reinstatement is of no effect and on the Union's refusal to accede to Respondent's demand is in derogation of the strikers' rights and contravenes that the Union agree that there would be no union retri- Board policies (Nordstrom, Inc., supra: Wooster Division of bution from its members against the members who had Borg-Warner Corp., 121 NLRB 1492, 1495 (1958)), then crossed the picket line. Under the above cited cases, Re- an employer's demand to impasse that it be accorded the spondent's insistence on such a clause relates to a non- right unilaterally to decide whom to reinstate from mandatory subject of bargaining, and insistence to im- among unfair labor practice strikers would be insisting passe, as here, on such a nonmandatory subject of bar- on a right the Union may not give; i.e., an unlawful con- gaining violates Section 8(a)(5) of the Act.' As I have dition under N.LR.B. v. Wooster Division of Borg-Warner said above, it is immaterial whether the parties had Corp., supra. Insistence to impasse on such a demand reached agreement on other mandatory subjects of bar- would violate Section 8(a)(l) and (5) of the Act. gaining. Respondent's insistence, as a condition of agree- As above noted, however, I need not reach or decide ment, upon the Union's agreeing to a nonmandatory sub- this issue since the remedy would be the same if agree- ject of bargaining violates Section 8(a)(5) and (1) of the ment were reached on the issue of union retaliation but a Act. I will recommend that Respondent cease bargaining new impasse occurred on Respondent's alleged demand to impasse on this, and any other nonmandatory issue. of unilateral power to pick and choose among returning It is thus, it seems to me, legally unnecessary for reme- strikers. dial purposes to reach or decide the further question posed by any crediting of the General Counsel's wit- F. The Strike as of June 24, 1980 nesses who testified that on June 24 agreement was reached on the issue of retaliation when Respondent, A s abo v e noted, I regard as immaterial and, in any through Respondent's attorney, Bennett, said that the c a se , not dispositive the resolution of the question wheth- Union's efforts in having its members not make charges e r the parties had reached agreement on many or, indeed, all other subjects of bargaining on June 24. The ~~," ,. ,. . ,., , , ,-,,.„ nn „» issue with regard to the conversion of the admitted June 'Mandatory subjects of bargaining (Nordstorm, Inc., 229 NLRB 601,, i w r d t t c o t a Jn 609 (1977), citing International Union ofOperating Engineers. Local Union 10 economic Strike into an unfair labor practice Strike on No. 12 (Associated General Contractors ofAmerica, Inc, etc.), 187 NLRB June 24 is whether unfair labor practices on June 24 pre- 430, 432 (1970)) "are those comprised in the phrase 'wages, hours, and cipitated, in whole or in part, the continuation of the other terms and conditions of employment' as set forth in Section 8(d) of strike. Again, it is not a question of whether there were the Act. while the language is broad, parameters have been established, although noi quantified. The touchstone is whether . . the proposed open issues involving mandatory subjects of bargaining clause sets a term or condition of employment or regulates the relation which remained unsettled; rather, the issue is whether between the employer and its employees." Cf. First National Maintenance Respondent's insistence Upon nonmandatory (or unlaw- Corp.v. N.LR.B., 452 U.S. 666 (1981). ful) subjects of bargaining, in whole or in part, caused I The proviso to Sec. 8(b)(lXA) states: "[11his paragraph shall not impair the right of a labor organization to prescribe its own rules with the continuation of the Strike. Tufts Brothers, Inc., 235 respect to the acquisition or retention of membership therein." NLRB 808, 810 (1978). While it might be argued that I The Supreme Court, in N.L.R.B. v. Wooster Division of Borg-Warner there was no agreement on the economic package, there Corp., 356 U.S. 342, 349 (1958), cited in Nordstrom, Inc., supra. at 609: is no question that the economic package appeared on its [GOood faith does not license the employer to refuse to enter into way to resolution and, indeed, would have been submit- agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining .... (S]uch con- ted to the unit by the union representatives (according to duct is, in substance, a refusal to bargain about the subjects that are Respondent's witnesses, without the union's recommen- within the scope of mandatory bargaining. This does not mean that dation, by a Secret-ballot vote, which procedure was sat- bargaining is to be confined to the statutory subjects.... But iit isfactory to Respondent). What caused the breakup of does not follow that, because the company may propose these [nonman- datory] clauses, it can lawfully insist upon them as a condition to any the June 24 collective-bargaining session and the continu- agreement. [Emphasis supplied.])ation of the strike was Respondent's insistence (on the COTE BROS. BAKERY, INC. 783 held that internal union affairs are not mandatory sub- against the members who had passed through the picket jects of bargaining' included within the terms, wages, line, although not a guarantee, were understood by Ben- hours, or other terms or conditions of employment. nett and acceptable by him. They also testified that Ben- While not illegal subjects of bargaining, they are merely nett said that there was a further problem, however, in "nonmandatory" subjects of bargaining. Nordstorm, Inc., that Respondent insisted on the right to pick and choose supra; Fetzer Broadcasting Company, 227 NLRB 1377, from among the remaining striking employees for the ex- 1387 (1977). An employer may not insist that a union isting jobs in their return to work. accept provisions which intrude on the disciplinary Insistence to impasse on such a right would violate powers over its members expressly reserved to unions by Section 8(a)(5) of the Act since many, if not most, of the the proviso to Section 8(b)(l)(A) of the Act.6 Independ- strikers apparently had not been permanently replaced as ent Slave Company, 175 NLRB 156, 159 (1969). In Nord- of June 24 and were unfair labor practice strikers. While storm, Inc., supra, the Board held that a proposal that the issue of reinstatement of economic strikers may be a employees who crossed the picket line be granted amnes- mandatory subject of bargaining (Nordstrom, Inc., supra ty from union discipline was a nonmandatory subject of at 610, fn. 16, citing Pepsi-Cola Bottling Co. of Miami, bargaining. Inc., 186 NLRB 477 (1970); Midwestern Instruments, Inc., Thus, if Respondent's witnesses' version of the basis for 133 NLRB 1132, 1141 (1961)), here some of the strikers disagreement and the breakup of bargaining at the June appear to be unfair labor practice strikers. If an agree- 24 collective-bargaining session is credited, the parties ment to treat unfair labor practice strikers as economic reached disagreement, and ceased thereafter to bargain, strikers for purposes of reinstatement is of no effect and on the Union's refusal to accede to Respondent's demand is in derogation of the strikers' rights and contravenes that the Union agree that there would be no union retri- Board policies (Nordstrom, Inc., supra: Wooster Division of bution from its members against the members who had Borg-Warner Corp., 121 NLRB 1492, 1495 (1958)), then crossed the picket line. Under the above cited cases, Re- an employer's demand to impasse that it be accorded the spondent's insistence on such a clause relates to a non- right unilaterally to decide whom to reinstate from mandatory subject of bargaining, and insistence to im- among unfair labor practice strikers would be insisting passe, as here, on such a nonmandatory subject of bar- on a right the Union may not give; i.e., an unlawful con- gaining violates Section 8(a)(5) of the Act.' As I have dition under N.LR.B. v. Wooster Division of Borg-Warner said above, it is immaterial whether the parties had Corp., supra. Insistence to impasse on such a demand reached agreement on other mandatory subjects of bar- would violate Section 8(a)(l) and (5) of the Act. gaining. Respondent's insistence, as a condition of agree- As above noted, however, I need not reach or decide ment, upon the Union's agreeing to a nonmandatory sub- this issue since the remedy would be the same if agree- ject of bargaining violates Section 8(a)(5) and (1) of the ment were reached on the issue of union retaliation but a Act. I will recommend that Respondent cease bargaining new impasse occurred on Respondent's alleged demand to impasse on this, and any other nonmandatory issue. of unilateral power to pick and choose among returning It is thus, it seems to me, legally unnecessary for reme- strikers. dial purposes to reach or decide the further question posed by any crediting of the General Counsel's wit- F. The Strike as of June 24, 1980 nesses who testified that on June 24 agreement was reached on the issue of retaliation when Respondent, A s abo v e noted, I regard as immaterial and, in any through Respondent's attorney, Bennett, said that the c a se , not dispositive the resolution of the question wheth- Union's efforts in having its members not make charges e r the parties had reached agreement on many or, indeed, all other subjects of bargaining on June 24. The ~~," ,. ,. . ,., , , ,-,,.„ nn „» issue with regard to the conversion of the admitted June 'Mandatory subjects of bargaining (Nordstorm, Inc., 229 NLRB 601,, i w r d t t c o t a Jn 609 (1977), citing International Union ofOperating Engineers. Local Union 10 economic Strike into an unfair labor practice Strike on No. 12 (Associated General Contractors ofAmerica, Inc, etc.), 187 NLRB June 24 is whether unfair labor practices on June 24 pre- 430, 432 (1970)) "are those comprised in the phrase 'wages, hours, and cipitated, in whole or in part, the continuation of the other terms and conditions of employment' as set forth in Section 8(d) of strike. Again, it is not a question of whether there were the Act. while the language is broad, parameters have been established, although noi quantified. The touchstone is whether . . the proposed open issues involving mandatory subjects of bargaining clause sets a term or condition of employment or regulates the relation which remained unsettled; rather, the issue is whether between the employer and its employees." Cf. First National Maintenance Respondent's insistence Upon nonmandatory (or unlaw- Corp.v. N.LR.B., 452 U.S. 666 (1981). ful) subjects of bargaining, in whole or in part, caused I The proviso to Sec. 8(b)(lXA) states: "[11his paragraph shall not impair the right of a labor organization to prescribe its own rules with the continuation of the Strike. Tufts Brothers, Inc., 235 respect to the acquisition or retention of membership therein." NLRB 808, 810 (1978). While it might be argued that I The Supreme Court, in N.L.R.B. v. Wooster Division of Borg-Warner there was no agreement on the economic package, there Corp., 356 U.S. 342, 349 (1958), cited in Nordstrom, Inc., supra. at 609: is no question that the economic package appeared on its [GOood faith does not license the employer to refuse to enter into way to resolution and, indeed, would have been submit- agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining .... (S]uch con- ted to the unit by the union representatives (according to duct is, in substance, a refusal to bargain about the subjects that are Respondent's witnesses, without the union's recommen- within the scope of mandatory bargaining. This does not mean that dation, by a Secret-ballot vote, which procedure was sat- bargaining is to be confined to the statutory subjects.... But iit isfactory to Respondent). What caused the breakup of does not follow that, because the company may propose these [nonman- datory] clauses, it can lawfully insist upon them as a condition to any the June 24 collective-bargaining session and the continu- agreement. [Emphasis supplied.])ation of the strike was Respondent's insistence (on the 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence adduced from its own witnesses) on the Union's 4. By insisting to impasse on a nonmandatory subject agreeing, as a condition to overall agreement, to have its of bargaining on June 24, 1980, Respondent violated Sec- members not seek or engage in any disciplinary acts or tion 8(a)(5) of the Act. charges against the members who worked, and continue 5. By unlawfully insisting to impasse, on June 24, 1980, to work, for Respondent during the strike and who had on a nonmandatory subject of bargaining, Respondent passed through the picket line. I have concluded that thereby and then converted the economic strike, which such insistence was unlawful within the meaning of Sec- commenced on June 10, 1980, into an unfair labor prac- tion 8(a)(5) since Respondent was insisting to impasse on tice strike. a mere permissible bargaining subject (N.L.R.B. v. Woos- 6. The above unfair labor practices are unfair labor ter Division of Borg-Warner Corp., supra at 350; Nord- practices affecting commerce within the meaning of Sec- strom, Inc., supra at 609; Independent Stave Co., supra at tion 2(6) and (7) of the Act. 159); and I further conclude that Respondent's insistence to impasse on this nonmandatory subject of bargaining THE REMEDY was the predominant, if not the entire, cause of the con- The General Counsel concedes that there is no mone- tinuation of the 15 strike on and after June 24, 1980. tary loss involved in this case. The parties agree that the N.L.R.B. v. Laredo Coca Cola Bottling Company, 613 strike, which originated on June 10, 1980, is still in prog- F.2d 1338 (5th Cir. 1980); Latrobe Steel Company, 244 ress and that the Union and the striking employees, as of NLRB 528 (1979). Again, I would reach the same con- the time of the hearing, have failed to offer uncondition- clusion if the General Counsel's witnesses were credited: ally to return to their jobs. that the collective-bargaining session of June 24 failed Having found that Respondent is engaged in certain because of Respondent's insistence to impasse on a right unfair labor practices within the meaning of Section to pick and choose among the striking employees (who, 8(a)(l) and (5) of the Act, Respondent will be ordered to after June 24, were unfair labor practice strikers) con- cease and desist therefrom and to take certain affirmative cerning their return to jobs with Respondent. Nordstrom, action designed to effectuate the policies of the Act. Inc., supra at 609, citing Wooster Division of Borg-Warner The remedies herein will relate, inter alia, to the em- Corp., supra at 1495. I might note, in passing, that regard- ployees engaged in an economic strike from June 10 less of whether the right to pick and choose from among through June 23, 1980. With regard to the period June returning economic strikers is a mandatory subject of bar- 10 through June 23, 1980, the record is unclear concern- gaining (especially including the method and means by ing how many employees crossed the picket line and re- which they are returned to jobs), where the number of turned to work, when and for which jobs permanent re- jobs available is less than the number of outstanding placements were hired, how many jobs remained availa- striking employees (cf. Nelson Filter, a Division of Nelson ble for the strikers in the period ending June 23, 1980, Industries, Inc., 255 NLRB 131 (1981); United Aircraft and which, if any, jobs were abolished. The determina- Corporation (Pratt and Whitney Division), 192 NLRB 382 tion of such matters is better left to the compliance stage (1971)), what respondent here was insisting upon was not of the proceeding. Marlene Industries Corporation, et al., an agreement and schedule with regard to picking and 255 NLRB 1446 (1981). In any event, the rights of the choosing and was not bargaining towards such an agree- economic strikers whose jobs were filled by permanent ment, but was (to impasse) the unilateral right to do so. replacements between June 10 and 23 are governed by Such a position, not bargaining, would from the outset the Board's rule in The Laidlaw Corporation, 171 NLRB arrogate to Respondent the sole right to pick and choose 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. from among striking employees. Such conduct would be denied 397 U.S. 920 (1970). In restating the Laidlaw rule, the arrogation to itself of the power concerning a subject in Giddings & Lewis, Inc., 255 NLRB 742 (1981), the (return of striking employees to their jobs) which the Board declared that economic strikers who uncondition- Union was vitally involved in. Such conduct, as I have ally apply for reinstatement are to be reinstated; but, suggested, likewise would have violated Section 8(a)(5) when their positions are filled by permanent replace- of the Act if the issue were actually reached. ments, they are entitled to full reinstatement either upon the departure of the permanent replacements or when CONCLUSIONS OF LAW jobs for which they are otherwise qualified become available (Flatiron Paving Company, d/b/a Flatiron Mate- 1. Respondent Cote Bros. Bakery, Inc., is an employer rils Company, 250 NLRB 554 (1980)), unless they have within the meaning of Section 2(2), (6), and (7) of the in the meantime acquired other regular and substantially Act. equivalent employment or the employer can sustain its 2. Local 348, Bakery, Confectionery and Tobacco burden of proof that the failure to offer reinstatement Workers International Union of America, AFL-CIO, is a was for legitimate and substantial business reasons. It will labor organization within the meaning of Section 2(5) of therefore be recommended that, upon these economic the Act. strikers' or the Union's (in their behalf) making an un- 3. By telling employees engaged in an economic strike, conditional offer to return to their old jobs, Respondent or or about June 10 or 11, 1980, that they were offer them their old jobs; but to such strikers whose jobs "through" if they did not return to work and abandon were permanently filled on or prior to June 23, 1980, the strike, Respondent violated Section 8(a)(l) of the their rights to jobs in the bakery will be subject to the Act. above rights, conditions, and limitations. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence adduced from its own witnesses) on the Union's 4. By insisting to impasse on a nonmandatory subject agreeing, as a condition to overall agreement, to have its of bargaining on June 24, 1980, Respondent violated Sec- members not seek or engage in any disciplinary acts or tion 8(a)(5) of the Act. charges against the members who worked, and continue 5. By unlawfully insisting to impasse, on June 24, 1980, to work, for Respondent during the strike and who had on a nonmandatory subject of bargaining, Respondent passed through the picket line. I have concluded that thereby and then converted the economic strike, which such insistence was unlawful within the meaning of Sec- commenced on June 10, 1980, into an unfair labor prac- tion 8(a)(5) since Respondent was insisting to impasse on tice strike. a mere permissible bargaining subject (N.L.R.B. v. Woos- 6. The above unfair labor practices are unfair labor ter Division of Borg-Warner Corp., supra at 350; Nord- practices affecting commerce within the meaning of Sec- strom, Inc., supra at 609; Independent Stave Co., supra at tion 2(6) and (7) of the Act. 159); and I further conclude that Respondent's insistence to impasse on this nonmandatory subject of bargaining THE REMEDY was the predominant, if not the entire, cause of the con- The General Counsel concedes that there is no mone- tinuation of the 15 strike on and after June 24, 1980. tary loss involved in this case. The parties agree that the N.L.R.B. v. Laredo Coca Cola Bottling Company, 613 strike, which originated on June 10, 1980, is still in prog- F.2d 1338 (5th Cir. 1980); Latrobe Steel Company, 244 ress and that the Union and the striking employees, as of NLRB 528 (1979). Again, I would reach the same con- the time of the hearing, have failed to offer uncondition- clusion if the General Counsel's witnesses were credited: ally to return to their jobs. that the collective-bargaining session of June 24 failed Having found that Respondent is engaged in certain because of Respondent's insistence to impasse on a right unfair labor practices within the meaning of Section to pick and choose among the striking employees (who, 8(a)(l) and (5) of the Act, Respondent will be ordered to after June 24, were unfair labor practice strikers) con- cease and desist therefrom and to take certain affirmative cerning their return to jobs with Respondent. Nordstrom, action designed to effectuate the policies of the Act. Inc., supra at 609, citing Wooster Division of Borg-Warner The remedies herein will relate, inter alia, to the em- Corp., supra at 1495. I might note, in passing, that regard- ployees engaged in an economic strike from June 10 less of whether the right to pick and choose from among through June 23, 1980. With regard to the period June returning economic strikers is a mandatory subject of bar- 10 through June 23, 1980, the record is unclear concern- gaining (especially including the method and means by ing how many employees crossed the picket line and re- which they are returned to jobs), where the number of turned to work, when and for which jobs permanent re- jobs available is less than the number of outstanding placements were hired, how many jobs remained availa- striking employees (cf. Nelson Filter, a Division of Nelson ble for the strikers in the period ending June 23, 1980, Industries, Inc., 255 NLRB 131 (1981); United Aircraft and which, if any, jobs were abolished. The determina- Corporation (Pratt and Whitney Division), 192 NLRB 382 tion of such matters is better left to the compliance stage (1971)), what respondent here was insisting upon was not of the proceeding. Marlene Industries Corporation, et al., an agreement and schedule with regard to picking and 255 NLRB 1446 (1981). In any event, the rights of the choosing and was not bargaining towards such an agree- economic strikers whose jobs were filled by permanent ment, but was (to impasse) the unilateral right to do so. replacements between June 10 and 23 are governed by Such a position, not bargaining, would from the outset the Board's rule in The Laidlaw Corporation, 171 NLRB arrogate to Respondent the sole right to pick and choose 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. from among striking employees. Such conduct would be denied 397 U.S. 920 (1970). In restating the Laidlaw rule, the arrogation to itself of the power concerning a subject in Giddings & Lewis, Inc., 255 NLRB 742 (1981), the (return of striking employees to their jobs) which the Board declared that economic strikers who uncondition- Union was vitally involved in. Such conduct, as I have ally apply for reinstatement are to be reinstated; but, suggested, likewise would have violated Section 8(a)(5) when their positions are filled by permanent replace- of the Act if the issue were actually reached. ments, they are entitled to full reinstatement either upon the departure of the permanent replacements or when CONCLUSIONS OF LAW jobs for which they are otherwise qualified become available (Flatiron Paving Company, d/b/a Flatiron Mate- 1. Respondent Cote Bros. Bakery, Inc., is an employer rials Company, 250 NLRB 554 (1980)), unless they have within the meaning of Section 2(2), (6), and (7) of the in the meantime acquired other regular and substantially Ac t. equivalent employment or the employer can sustain its 2. Local 348, Bakery, Confectionery and Tobacco burden of proof that the failure to offer reinstatement Workers International Union of America, AFL-CIO, is a was for legitimate and substantial business reasons. It will labor organization within the meaning of Section 2(5) of therefore be recommended that, upon these economic the Act. strikers' or the Union's (in their behalf) making an un- 3. By telling employees engaged in an economic strike, conditional offer to return to their old jobs, Respondent or or about June 10 or 11, 1980, that they were offer them their old jobs; but to such strikers whose jobs "through" if they did not return to work and abandon were permanently filled on or prior to June 23, 1980, the strike, Respondent violated Section 8(a)(l) of the their rights to jobs in the bakery will be subject to the Act. above rights, conditions, and limitations. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence adduced from its own witnesses) on the Union's 4. By insisting to impasse on a nonmandatory subject agreeing, as a condition to overall agreement, to have its of bargaining on June 24, 1980, Respondent violated Sec- members not seek or engage in any disciplinary acts or tion 8(a)(5) of the Act. charges against the members who worked, and continue 5. By unlawfully insisting to impasse, on June 24, 1980, to work, for Respondent during the strike and who had on a nonmandatory subject of bargaining, Respondent passed through the picket line. I have concluded that thereby and then converted the economic strike, which such insistence was unlawful within the meaning of Sec- commenced on June 10, 1980, into an unfair labor prac- tion 8(a)(5) since Respondent was insisting to impasse on tice strike. a mere permissible bargaining subject (N.L.R.B. v. Woos- 6. The above unfair labor practices are unfair labor ter Division of Borg-Warner Corp., supra at 350; Nord- practices affecting commerce within the meaning of Sec- strom, Inc., supra at 609; Independent Stave Co., supra at tion 2(6) and (7) of the Act. 159); and I further conclude that Respondent's insistence to impasse on this nonmandatory subject of bargaining T HE REMEDY was the predominant, if not the entire, cause of the con- The General Counsel concedes that there is no mone- tinuation of the 15 strike on and after June 24, 1980. tary loss involved in this case. The parties agree that the N.L.R.B. v. Laredo Coca Cola Bottling Company, 613 strike, which originated on June 10, 1980, is still in prog- F.2d 1338 (5th Cir. 1980); Latrobe Steel Company, 244 ress and that the Union and the striking employees, as of NLRB 528 (1979). Again, I would reach the same con- the time of the hearing, have failed to offer uncondition- clusion if the General Counsel's witnesses were credited: ally to return to their jobs. that the collective-bargaining session of June 24 failed Having found that Respondent is engaged in certain because of Respondent's insistence to impasse on a right unfair labor practices within the meaning of Section to pick and choose among the striking employees (who, 8(a)(l) and (5) of the Act, Respondent will be ordered to after June 24, were unfair labor practice strikers) con- cease and desist therefrom and to take certain affirmative cerning their return to jobs with Respondent. Nordstrom, action designed to effectuate the policies of the Act. Inc., supra at 609, citing Wooster Division of Borg-Warner The remedies herein will relate, inter alia, to the em- Corp., supra at 1495. I might note, in passing, that regard- ployees engaged in an economic strike from June 10 less of whether the right to pick and choose from among through June 23, 1980. With regard to the period June returning economic strikers is a mandatory subject of bar- 10 through June 23, 1980, the record is unclear concern- gaining (especially including the method and means by ing how many employees crossed the picket line and re- which they are returned to jobs), where the number of turned to work, when and for which jobs permanent re- jobs available is less than the number of outstanding placements were hired, how many jobs remained availa- striking employees (cf. Nelson Filter, a Division of Nelson ble for the strikers in the period ending June 23, 1980, Industries, Inc., 255 NLRB 131 (1981); United Aircraft and which, if any, jobs were abolished. The determina- Corporation (Pratt and Whitney Division), 192 NLRB 382 tion of such matters is better left to the compliance stage (1971)), what respondent here was insisting upon was not of the proceeding. Marlene Industries Corporation, et al., an agreement and schedule with regard to picking and 255 NLRB 1446 (1981). In any event, the rights of the choosing and was not bargaining towards such an agree- economic strikers whose jobs were filled by permanent ment, but was (to impasse) the unilateral right to do so. replacements between June 10 and 23 are governed by Such a position, not bargaining, would from the outset the Board's rule in The Laidlaw Corporation, 171 NLRB arrogate to Respondent the sole right to pick and choose 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. from among striking employees. Such conduct would be denied 397 U.S. 920 (1970). In restating the Laidlaw rule, the arrogation to itself of the power concerning a subject in Giddings & Lewis, Inc., 255 NLRB 742 (1981), the (return of striking employees to their jobs) which the Board declared that economic strikers who uncondition- Union was vitally involved in. Such conduct, as I have ally apply for reinstatement are to be reinstated; but, suggested, likewise would have violated Section 8(a)(5) when their positions are filled by permanent replace- of the Act if the issue were actually reached. ments, they are entitled to full reinstatement either upon the departure of the permanent replacements or when CONCLUSIONS OF LAW jobs for which they are otherwise qualified become available (Flatiron Paving Company, d/b/a Flatiron Mate- 1. Respondent Cote Bros. Bakery, Inc., is an employer rials Company, 250 NLRB 554 (1980)), unless they have within the meaning of Section 2(2), (6), and (7) of the in the meantime acquired other regular and substantially Ac t. equivalent employment or the employer can sustain its 2. Local 348, Bakery, Confectionery and Tobacco burden of proof that the failure to offer reinstatement Workers International Union of America, AFL-CIO, is a was for legitimate and substantial business reasons. It will labor organization within the meaning of Section 2(5) of therefore be recommended that, upon these economic the Act. strikers' or the Union's (in their behalf) making an un- 3. By telling employees engaged in an economic strike, conditional offer to return to their old jobs, Respondent or or about June 10 or 11, 1980, that they were offer them their old jobs; but to such strikers whose jobs "through" if they did not return to work and abandon were permanently filled on or prior to June 23, 1980, the strike, Respondent violated Section 8(a)(l) of the their rights to jobs in the bakery will be subject to the Act. above rights, conditions, and limitations. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence adduced from its own witnesses) on the Union's 4. By insisting to impasse on a nonmandatory subject agreeing, as a condition to overall agreement, to have its of bargaining on June 24, 1980, Respondent violated Sec- members not seek or engage in any disciplinary acts or tion 8(a)(5) of the Act. charges against the members who worked, and continue 5. By unlawfully insisting to impasse, on June 24, 1980, to work, for Respondent during the strike and who had on a nonmandatory subject of bargaining, Respondent passed through the picket line. I have concluded that thereby and then converted the economic strike, which such insistence was unlawful within the meaning of Sec- commenced on June 10, 1980, into an unfair labor prac- tion 8(a)(5) since Respondent was insisting to impasse on tice strike. a mere permissible bargaining subject (N.L.R.B. v. Woos- 6. The above unfair labor practices are unfair labor ter Division of Borg-Warner Corp., supra at 350; Nord- practices affecting commerce within the meaning of Sec- strom, Inc., supra at 609; Independent Stave Co., supra at tion 2(6) and (7) of the Act. 159); and I further conclude that Respondent's insistence to impasse on this nonmandatory subject of bargaining T HE REMEDY was the predominant, if not the entire, cause of the con- The General Counsel concedes that there is no mone- tinuation of the 15 strike on and after June 24, 1980. tary loss involved in this case. The parties agree that the N.L.R.B. v. Laredo Coca Cola Bottling Company, 613 strike, which originated on June 10, 1980, is still in prog- F.2d 1338 (5th Cir. 1980); Latrobe Steel Company, 244 ress and that the Union and the striking employees, as of NLRB 528 (1979). Again, I would reach the same con- the time of the hearing, have failed to offer uncondition- clusion if the General Counsel's witnesses were credited: ally to return to their jobs. that the collective-bargaining session of June 24 failed Having found that Respondent is engaged in certain because of Respondent's insistence to impasse on a right unfair labor practices within the meaning of Section to pick and choose among the striking employees (who, 8(a)(l) and (5) of the Act, Respondent will be ordered to after June 24, were unfair labor practice strikers) con- cease and desist therefrom and to take certain affirmative cerning their return to jobs with Respondent. Nordstrom, action designed to effectuate the policies of the Act. Inc., supra at 609, citing Wooster Division of Borg-Warner The remedies herein will relate, inter alia, to the em- Corp., supra at 1495. I might note, in passing, that regard- ployees engaged in an economic strike from June 10 less of whether the right to pick and choose from among through June 23, 1980. With regard to the period June returning economic strikers is a mandatory subject of bar- 10 through June 23, 1980, the record is unclear concern- gaining (especially including the method and means by ing how many employees crossed the picket line and re- which they are returned to jobs), where the number of turned to work, when and for which jobs permanent re- jobs available is less than the number of outstanding placements were hired, how many jobs remained availa- striking employees (cf. Nelson Filter, a Division of Nelson ble for the strikers in the period ending June 23, 1980, Industries, Inc., 255 NLRB 131 (1981); United Aircraft and which, if any, jobs were abolished. The determina- Corporation (Pratt and Whitney Division), 192 NLRB 382 tion of such matters is better left to the compliance stage (1971)), what respondent here was insisting upon was not of the proceeding. Marlene Industries Corporation, et al., an agreement and schedule with regard to picking and 255 NLRB 1446 (1981). In any event, the rights of the choosing and was not bargaining towards such an agree- economic strikers whose jobs were filled by permanent ment, but was (to impasse) the unilateral right to do so. replacements between June 10 and 23 are governed by Such a position, not bargaining, would from the outset the Board's rule in The Laidlaw Corporation, 171 NLRB arrogate to Respondent the sole right to pick and choose 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. from among striking employees. Such conduct would be denied 397 U.S. 920 (1970). In restating the Laidlaw rule, the arrogation to itself of the power concerning a subject in Giddings & Lewis, Inc., 255 NLRB 742 (1981), the (return of striking employees to their jobs) which the Board declared that economic strikers who uncondition- Union was vitally involved in. Such conduct, as I have ally apply for reinstatement are to be reinstated; but, suggested, likewise would have violated Section 8(a)(5) when their positions are filled by permanent replace- of the Act if the issue were actually reached. ments, they are entitled to full reinstatement either upon the departure of the permanent replacements or when CONCLUSIONS OF LAW jobs for which they are otherwise qualified become available (Flatiron Paving Company, d/b/a Flatiron Mate- 1. Respondent Cote Bros. Bakery, Inc., is an employer rials Company, 250 NLRB 554 (1980)), unless they have within the meaning of Section 2(2), (6), and (7) of the in the meantime acquired other regular and substantially Ac t. equivalent employment or the employer can sustain its 2. Local 348, Bakery, Confectionery and Tobacco burden of proof that the failure to offer reinstatement Workers International Union of America, AFL-CIO, is a was for legitimate and substantial business reasons. It will labor organization within the meaning of Section 2(5) of therefore be recommended that, upon these economic the Act. strikers' or the Union's (in their behalf) making an un- 3. By telling employees engaged in an economic strike, conditional offer to return to their old jobs, Respondent or or about June 10 or 11, 1980, that they were offer them their old jobs; but to such strikers whose jobs "through" if they did not return to work and abandon were permanently filled on or prior to June 23, 1980, the strike, Respondent violated Section 8(a)(l) of the their rights to jobs in the bakery will be subject to the Act. above rights, conditions, and limitations. COTE BROS. BAKERY, INC. 785 With regard to the striking employees whose jobs I. Cease and desist from: were not filled by permanent replacements on and before (a) Threatening its employees with discharge by telling June 23, 1980, or whose jobs were not abolished in that them that they are "through" if they do not return to period, or, in any case, where jobs for which they are work and abandon a lawful economic strike. qualified have become available after any such perma- (b) Refusing to bargain in good faith with Local 348, nent replacement or abolition, I will recommend that Bakery, Confectionery and Tobacco Workers Interna- their rights be governed by the rules relating to the rein- tional Union of America, AFL-CIO, by insisting to bar- statement of unfair labor practice strikers. Cf. Nelson gaining impasse upon amnesty from union discipline for Filter, a Division of Nelson Industries, Inc., supra; Latrobe employees who are members of the Union who crossed Steel Co., supra. Thus, any permanent replacements hired the Union's picket line and worked during a lawful on and after June 24, 1980, or any new hires for jobs strike, or upon any other nonmandatory subject of bar- which were opened commencing on that date for which gaining, in the following appropriate unit: the strikers were qualified, must be dismissed for the Bakery Production Department, Porters, Plant benefit of any striker who makes an unconditional offerMaintenance and Shipping Departments, excluding Maintenance and Shipping Departments, excluding for reinstatement to his old job which job, as aboveExecutives, office and clerical employees, guards noted, was not filled before June 24, 1980, when the eco- professional employees, and supervisors as defined nomic strike ceased. Thus, I shall recommend to the in the Act. Board that, upon the Union's or the employees' offer un- conditionally to abandon the strike and return to their (c) In any like or related manner interfering with, re- old jobs, Respondent shall reinstate and recall the for- straining, or coercing employees in the exercise of the merly striking employees to their old jobs, or to vacan- rights guaranteed them in Section 7 of the Act. cies in jobs for which the strikers are qualified, dismiss- 2. Take the following affirmative action necessary to ing, if necessary, any employees incumbent in those jobs effectuate the policies of the Act: who were hired on or after June 24, 1980. (a) Upon request, bargain collectively in good faith The Board's rule also requires that unfair labor prac- with the Union, as the exclusive collective-bargaining tice strikers be made whole for any loss of earnings they representative of all its employees in the above-noted ap- may have suffered as a result of Respondent's refusal, if propriate unit, with respect to wages, hours, and other any, to reinstate them in a timely fashion by paying to terms and conditions of employment, and embody any each of them that which he would have earned as wages understanding reached in a signed agreement. in the period commencing 5 days after the date on which (b) Upon their unconditional offer to return to work, each unconditionally offers to return to work to the date reinstate the strikers to their old jobs, dismissing, if nec- of Respondent's offer of reinstatement, less any net earn- essary, any replacements hired in their place, except ings during such period, said backpay to be computed in where such replacements occurred before June 24, 1980, the manner prescribed in F. W. Woolworth Company, 90 and make them whole for any loss of earnings that they NLRB 289 (1950), with interest thereon to be computed may incur in the manner set forth in the section of this in the manner prescribed in Florida Steel Corporation, 231 Decision entitled "The Remedy." Striking employees NLRB 651 (1977). See, generally, Isis Plumbing & Heat- w h o were permanently replaced or who se jobs were ing Co., 138 NLRB 716 (1962). abolished before June 24, 1980, shall be offered jobs The Board's further rule is that if Respondent has al- when and if the permanent replacements leave, or when The Board's further rule is that if Respondent has al- become available for which they are qualified. positions become available for which they are qualified. ready rejected, or hereafter rejects, unduly delays, or ig- (c) Preserve and, upon request, make available to the nores, any unconditional offer by employees to return to Board or its agents, for examination and copying, all work, or attaches unlawful conditions to its offer of rein- payroll records, social security records, senior- statement, the above 5-day period serves no useful pur- ity records, timecards, collective-bargaining agreements, pose, and backpay will commence as of the uncondition- personnel records and reports, and all other records nec- al offer to return to work. Newport News Shipbuilding essary to analyze the basis for the reinstatement of eco- and Dry Dock Company, 236 NLRB 1637 (1978). nomic and unfair labor practice strikers and the amount Upon the foregoing findings of fact, conclusions of of backpay, if any, due under the terms of this recom- law, and the entire record, and pursuant to Section 10(c) mended Order. of the Act, I hereby issue the following recommended: (d) Post at its plant at 87 Elm Street, Manchester, New Hampshire, copies of the attached notice marked ORDERB "Appendix." 9 Copies of said notice, on forms provided The Respondent, Cote Bros. Bakery, Inc., Manchester, by the Regional Director for Region 1, after being duly New Hampshire, its officers, agents, successors, and as- signed by Respondent's authorized representative, shall signs, shall: be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days i In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." COTE BROS. BAKERY, INC. 785 With regard to the striking employees whose jobs 1. Cease and desist from: were not filled by permanent replacements on and before (a) Threatening its employees with discharge by telling June 23, 1980, or whose jobs were not abolished in that them that they are "through" if they do not return to period, or, in any case, where jobs for which they are work and abandon a lawful economic strike. qualified have become available after any such perma- (b) Refusing to bargain in good faith with Local 348, nent replacement or abolition, I will recommend that Bakery, Confectionery and Tobacco Workers Interna- their rights be governed by the rules relating to the rein- tional Union of America, AFL-CIO, by insisting to bar- statement of unfair labor practice strikers. Cf. Nelson gaining impasse upon amnesty from union discipline for Filter, a Division of Nelson Industries, Inc., supra; Latrobe employees who are members of the Union who crossed Steel Co., supra. Thus, any permanent replacements hired the Union's picket line and worked during a lawful on and after June 24, 1980, or any new hires for jobs strike, or upon any other nonmandatory subject of bar- which were opened commencing on that date for which gaining, in the following appropriate unit: the strikers were qualified, must be dismissed for the Bakery Production Department, Porters, Plant benefit of any striker who makes an unconditional offerMaintenance and Shipping Departments, excluding for reinstatement to his old job which job, as aboveExecutives, office and clerical employees, guards noted, was not filled before June 24, 1980, when the eco- professional employees, and supervisors as defined nomic strike ceased. Thus, I shall recommend to the in the Act. Board that, upon the Union's or the employees' offer un- conditionally to abandon the strike and return to their (c) In any like or related manner interfering with, re- old jobs, Respondent shall reinstate and recall the for- straining, or coercing employees in the exercise of the merly striking employees to their old jobs, or to vacan- rights guaranteed them in Section 7 of the Act. cies in jobs for which the strikers are qualified, dismiss- 2. Take the following affirmative action necessary to ing, if necessary, any employees incumbent in those jobs effectuate the policies of the Act: who were hired on or after June 24, 1980. (a) Upon request, bargain collectively in good faith The Board's rule also requires that unfair labor prac- with the Union, as the exclusive collective-bargaining tice strikers be made whole for any loss of earnings they representative of all its employees in the above-noted ap- may have suffered as a result of Respondent's refusal, if propriate unit, with respect to wages, hours, and other any, to reinstate them in a timely fashion by paying to t e r m s a n d conditions of employment, and embody any each of them that which he would have earned as wages understanding reached in a signed agreement. in the period commencing 5 days after the date on which (b) Upon t h eir unconditional offer to return to work, each unconditionally offers to return to work to the date reinstate the strikers to their old jobs, dismissing, if nec- of Respondent's offer of reinstatement, less any net earn- essa r y, any replacements hired in their place, except ings during such period, said backpay to be computed in w h e r e such replacements occurred before June 24, 1980, the manner prescribed in F. W. Woolworth Company, 90 a n d m a k e t h e m w h o le f o r any lo s s o f earnings that they NLRB 289 (1950), with interest thereon to be computed m a y in c u r in t h e manner set forth in the section of this in the manner prescribed in Florida Steel Corporation, 231 D e c isio n e n t it le d "T h e Remedy." Striking employees NLRB 651 (1977). See, generally, Isis Plumbing & Heat- w h o were permanently replaced or who se jobs were ing Co., 138 NLRB 716 (1962). abolished before June 24, 1980, shall be offered jobs The Board's furtherrule is that if Respondent has a- ,when and if the permanent replacements leave, or when The Board s further rule is that if Respondent has al- positions become available for which they are qualified. ready rejected, or hereafter rejects, unduly delays, or ig- (c) Preserve and, upon request, make available to the nores, any unconditional offer by employees to return to Board or its agents, for examination and copying, all work, or attaches unlawful conditions to its offer of rein- parl r d, ,ca suy p records, senior- statement, the above 5-day period serves no useful pur- ity records, timecards, collective-bargaining agreements, pose, and backpay will commence as of the uncondition- personnel records and reports, and all other records nec- al offer to return to work. Newport News Shipbuilding essary to analyze the basis for the reinstatement of eco- and Dry Dock Company, 236 NLRB 1637 (1978). nomic and unfair labor practice strikers and the amount Upon the foregoing findings of fact, conclusions of of backpay, if any, due under the terms of this recom- law, and the entire record, and pursuant to Section 10(c) mended Order. of the Act, I hereby issue the following recommended: (d) Post at its plant at 87 Elm Street, Manchester, New Hampshire, copies of the attached notice marked ORDER" "Appendix."" Copies of said notice, on forms provided The Respondent, Cote Bros. Bakery, Inc., Manchester, by the Regional Director for Region 1, after being duly New Hampshire, its officers, agents, successors, and as- signed by Respondent's authorized representative, shall signs, shall: be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." COTE BROS. BAKERY, INC. 785 With regard to the striking employees whose jobs 1. Cease and desist from: were not filled by permanent replacements on and before (a) Threatening its employees with discharge by telling June 23, 1980, or whose jobs were not abolished in that them that they are "through" if they do not return to period, or, in any case, where jobs for which they are work and abandon a lawful economic strike. qualified have become available after any such perma- (b) Refusing to bargain in good faith with Local 348, nent replacement or abolition, I will recommend that Bakery, Confectionery and Tobacco Workers Interna- their rights be governed by the rules relating to the rein- tional Union of America, AFL-CIO, by insisting to bar- statement of unfair labor practice strikers. Cf. Nelson gaining impasse upon amnesty from union discipline for Filter, a Division of Nelson Industries, Inc., supra; Latrobe employees who are members of the Union who crossed Steel Co., supra. Thus, any permanent replacements hired the Union's picket line and worked during a lawful on and after June 24, 1980, or any new hires for jobs strike, or upon any other nonmandatory subject of bar- which were opened commencing on that date for which gaining, in the following appropriate unit: the strikers were qualified, must be dismissed for the Bakery Production Department, Porters, Plant benefit of any striker who makes an unconditional offerMaintenance and Shipping Departments, excluding for reinstatement to his old job which job, as aboveExecutives, office and clerical employees, guards noted, was not filled before June 24, 1980, when the eco- professional employees, and supervisors as defined nomic strike ceased. Thus, I shall recommend to the in the Act. Board that, upon the Union's or the employees' offer un- conditionally to abandon the strike and return to their (c) In any like or related manner interfering with, re- old jobs, Respondent shall reinstate and recall the for- straining, or coercing employees in the exercise of the merly striking employees to their old jobs, or to vacan- rights guaranteed them in Section 7 of the Act. cies in jobs for which the strikers are qualified, dismiss- 2. Take the following affirmative action necessary to ing, if necessary, any employees incumbent in those jobs effectuate the policies of the Act: who were hired on or after June 24, 1980. (a) Upon request, bargain collectively in good faith The Board's rule also requires that unfair labor prac- with the Union, as the exclusive collective-bargaining tice strikers be made whole for any loss of earnings they representative of all its employees in the above-noted ap- may have suffered as a result of Respondent's refusal, if propriate unit, with respect to wages, hours, and other any, to reinstate them in a timely fashion by paying to t e r m s and conditions of employment, and embody any each of them that which he would have earned as wages understanding reached in a signed agreement. in the period commencing 5 days after the date on which (b) Upon their unconditional offer to return to work, each unconditionally offers to return to work to the date reinstate the strikers to their old jobs, dismissing, if nec- of Respondent's offer of reinstatement, less any net earn- essa r y, any replacements hired in their place, except ings during such period, said backpay to be computed in w h e r e such replacements occurred before June 24, 1980, the manner prescribed in F. W. Woolworth Company, 90 a n d m a k e t h e m w h o le f o r any lo s s o f earnings that they NLRB 289 (1950), with interest thereon to be computed m a y in c u r in t h e manner set forth in the section of this in the manner prescribed in Florida Steel Corporation, 231 D e c isio n e n t it le d "T h e Remedy." Striking employees NLRB 651 (1977). See, generally, Isis Plumbing & Heat- w h o were permanently replaced or who se jobs were ing Co., 138 NLRB 716 (1962). abolished before June 24, 1980, shall be offered jobs The Board's furtherrule is that if Respondent has a- ,when and if the permanent replacements leave, or when The Board s further rule is that if Respondent has al- positions become available for which they are qualified. ready rejected, or hereafter rejects, unduly delays, or ig- (c) Preserve and, upon request, make available to the nores, any unconditional offer by employees to return to Board or its agents, for examination and copying, all work, or attaches unlawful conditions to its offer of rein- parl r d, ,ca suy p records, senior- statement, the above 5-day period serves no useful pur- ity records, timecards, collective-bargaining agreements, pose, and backpay will commence as of the uncondition- personnel records and reports, and all other records nec- al offer to return to work. Newport News Shipbuilding essary to analyze the basis for the reinstatement of eco- and Dry Dock Company, 236 NLRB 1637 (1978). nomic and unfair labor practice strikers and the amount Upon the foregoing findings of fact, conclusions of of backpay, if any, due under the terms of this recom- law, and the entire record, and pursuant to Section 10(c) mended Order. of the Act, I hereby issue the following recommended: (d) Post at its plant at 87 Elm Street, Manchester, New Hampshire, copies of the attached notice marked ORDER" "Appendix."" Copies of said notice, on forms provided The Respondent, Cote Bros. Bakery, Inc., Manchester, by the Regional Director for Region 1, after being duly New Hampshire, its officers, agents, successors, and as- signed by Respondent's authorized representative, shall signs, shall: be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." COTE BROS. BAKERY, INC. 785 With regard to the striking employees whose jobs 1. Cease and desist from: were not filled by permanent replacements on and before (a) Threatening its employees with discharge by telling June 23, 1980, or whose jobs were not abolished in that them that they are "through" if they do not return to period, or, in any case, where jobs for which they are work and abandon a lawful economic strike. qualified have become available after any such perma- (b) Refusing to bargain in good faith with Local 348, nent replacement or abolition, I will recommend that Bakery, Confectionery and Tobacco Workers Interna- their rights be governed by the rules relating to the rein- tional Union of America, AFL-CIO, by insisting to bar- statement of unfair labor practice strikers. Cf. Nelson gaining impasse upon amnesty from union discipline for Filter, a Division of Nelson Industries, Inc., supra; Latrobe employees who are members of the Union who crossed Steel Co., supra. Thus, any permanent replacements hired the Union's picket line and worked during a lawful on and after June 24, 1980, or any new hires for jobs s t r i ke, or upon any other nonmandatory subject of bar- which were opened commencing on that date for which gaining, in the following appropriate unit: the strikers were qualified, must be dismissed for the Bakery Production Department, Porters, Plant benefit of any striker who makes an unconditional offerMaintenance and Shipping Departments, excluding for reinstatement to his old job which job, as aboveExecutives, office and clerical employees, guards noted, was not filled before June 24, 1980, when the eco- professional employees, and supervisors as defined nomic strike ceased. Thus, I shall recommend to the in the Act. Board that, upon the Union's or the employees' offer un- conditionally to abandon the strike and return to their (c) In any like or related manner interfering with, re- old jobs, Respondent shall reinstate and recall the for- straining, or coercing employees in the exercise of the merly striking employees to their old jobs, or to vacan- rights guaranteed them in Section 7 of the Act. cies in jobs for which the strikers are qualified, dismiss- 2. Take the following affirmative action necessary to ing, if necessary, any employees incumbent in those jobs effectuate the policies of the Act: who were hired on or after June 24, 1980. (a) Upon request, bargain collectively in good faith The Board's rule also requires that unfair labor prac- with the Union, as the exclusive collective-bargaining tice strikers be made whole for any loss of earnings they representative of all its employees in the above-noted ap- may have suffered as a result of Respondent's refusal, if propriate unit, with respect to wages, hours, and other any, to reinstate them in a timely fashion by paying to t e r m s and conditions of employment, and embody any each of them that which he would have earned as wages understanding reached in a signed agreement. in the period commencing 5 days after the date on which (b) Upon their unconditional offer to return to work, each unconditionally offers to return to work to the date reinstate the strikers to their old jobs, dismissing, if nec- of Respondent's offer of reinstatement, less any net earn- essa r y, any replacements hired in their place, except ings during such period, said backpay to be computed in w h e r e such replacements occurred before June 24, 1980, the manner prescribed in F. W. Woolworth Company, 90 a n d m a k e t h e m w h o le f o r any lo s s o f earnings that they NLRB 289 (1950), with interest thereon to be computed m a y in c u r in t h e manner set forth in the section of this in the manner prescribed in Florida Steel Corporation, 231 D e c isio n e n t it le d "T h e Remedy." Striking employees NLRB 651 (1977). See, generally, Isis Plumbing & Heat- w h o were permanently replaced or who se jobs were ing Co., 138 NLRB 716 (1962). abolished before June 24, 1980, shall be offered jobs The Board's furtherrule is that if Respondent has a- ,when and if the permanent replacements leave, or when The Board s further rule is that if Respondent has al- positions become available for which they are qualified. ready rejected, or hereafter rejects, unduly delays, or ig- (c) Preserve and, upon request, make available to the nores, any unconditional offer by employees to return to Board or its agents, for examination and copying, all work, or attaches unlawful conditions to its offer of rein- parl r d, ,ca suy p records, senior- statement, the above 5-day period serves no useful pur- ity records, timecards, collective-bargaining agreements, pose, and backpay will commence as of the uncondition- personnel records and reports, and all other records nec- al offer to return to work. Newport News Shipbuilding essary to analyze the basis for the reinstatement of eco- and Dry Dock Company, 236 NLRB 1637 (1978). nomic and unfair labor practice strikers and the amount Upon the foregoing findings of fact, conclusions of of backpay, if any, due under the terms of this recom- law, and the entire record, and pursuant to Section 10(c) mended Order. of the Act, I hereby issue the following recommended: (d) Post at its plant at 87 Elm Street, Manchester, New Hampshire, copies of the attached notice marked ORDER" "Appendix."" Copies of said notice, on forms provided The Respondent, Cote Bros. Bakery, Inc., Manchester, by the Regional Director for Region 1, after being duly New Hampshire, its officers, agents, successors, and as- signed by Respondent's authorized representative, shall signs, shall: be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter, in conspicuous places, including all places IT IS FURTHER ORDERED that the complaint be, and it where notices to employees are customarily posted. Rea- hereby is, dismissed insofar as it alleges violations of the sonable steps shall be taken by Respondent to insure that Act not specifically found herein.' 0 said notices are not altered, defaced, or covered by any other material. Hampshire; Respondent has apparently ceased operations and will not (e) Notify the Regional Director for Region 1, in writ- resume operations; Respondent's employees were terminated effective ing, within 20 days from the date of this Order, what June 13, 1981, without any possibility of returning to their former jobs; steps Respondent has taken to comply herewith. no meaningful remedy can now be granted; and further proceedings would be vain, costly, and contrary to the purpose of the Act and the powers of the Board. " Bearing the date of June 26, 1981, Respondent filed aost-trial Respondent's motion is hereby denied. The matters alleged in the motion, supported by an annexed affidavit of the same date (herein AL motion and affidavit are not part of the record in this case, as defined by Exh. I) by its attorney, Peter R. Kraft, Esq., to dismiss the consolidated Sec. 102.45(b) of the Board's Rules and Regulations, Series 8, as amend- complaint on the grounds that, effective June 13, 1981 (subsequent to the ed, and are not properly before me. Moreover, the issues raised by Re- close of the record herein), Respondent's assets have been taken over and spondent's allegations are for the compliance stage of this proceeding. are being liquidated by Indian Head National Bank of Nashua, New See S Freedman Electric Inc., 256 NLRB 432, fn. 1 (1981). 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter, in conspicuous places, including all places IT IS FURTHER ORDERED that the complaint be, and it where notices to employees are customarily posted. Rea- hereby is, dismissed insofar as it alleges violations of the sonable steps shall be taken by Respondent to insure that Act not specifically found herein. 10 said notices are not altered, defaced, or covered by any Other material. Hampshire; Respondent has apparently ceased operations and will not (e) Notify the Regional Director for Region 1, in writ- resume operations; Respondent's employees were terminated effective ing, within 20 days from the date of this Order, what J u ne 13, 19 8 1' without any possibility of returning to their former jobs; steps Respondent has taken to comply herewith. no meaningful remedy can now be grant ed; and fur ther proceedings would be vain, costly, and contrary to the purpose of the Act and the powers of the Board. "0 Bearing the date of June 26, 1981, Respondent filed a post-trial Respon d e n t 's m otion is hereby denied. The matters alleged in the motion, supported by an annexed affidavit of the same date (herein AI motion and affidavit are not part of the record in this cane, as defined by Enh. 1) by its attorney, Peter R. Kraft, Esq., to dismiss the consolidated Sec. 102.45(b) of the Board's Rules and Regulations, Series 8, as amend- complaint on the grounds that, effective June 13, 1981 (subsequent to the ed, and are not properly before me. Moreover, the issues raised by Re- close of the record herein), Respondent's assets have been taken over and spondent's allegations are for the compliance stage of this proceeding. are being liquidated by Indian Head National Bank of Nashua, New See S. Freedman Electric. Inc., 256 NLRB 432, fn. 1 (1981). 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter, in conspicuous places, including all places IT IS FURTHER ORDERED that the complaint be, and it where notices to employees are customarily posted. Rea- hereby is, dismissed insofar as it alleges violations of the sonable steps shall be taken by Respondent to insure that Act not specifically found herein. 10 said notices are not altered, defaced, or covered by any Other material. Hampshire; Respondent has apparently ceased operations and will not (e) Notify the Regional Director for Region 1, in writ- resume operations; Respondent's employees were terminated effective ing, within 20 days from the date of this Order, what J u ne 13, 19 8 1' without any possibility of returning to their former jobs; steps Respondent has taken to comply herewith. no meaningful remedy can now be granted; and further proceedings would be vain, costly, and contrary to the purpose of the Act and the powers of the Board. "0 Bearing the date of June 26, 1981, Respondent filed a post-trial Respon d e n t 's m otion is hereby denied. The matters alleged in the motion, supported by an annexed affidavit of the same date (herein AI motion and affidavit are not part of the record in this cane, as defined by Enh. 1) by its attorney, Peter R. Kraft, Esq., to dismiss the consolidated Sec. 102.45(b) of the Board's Rules and Regulations, Series 8, as amend- complaint on the grounds that, effective June 13, 1981 (subsequent to the ed, and are not properly before me. Moreover, the issues raised by Re- close of the record herein), Respondent's assets have been taken over and spondent's allegations are for the compliance stage of this proceeding. are being liquidated by Indian Head National Bank of Nashua, New See S. Freedman Electric. Inc., 256 NLRB 432, fn. 1 (1981). 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter, in conspicuous places, including all places IT IS FURTHER ORDERED that the complaint be, and it where notices to employees are customarily posted. Rea- hereby is, dismissed insofar as it alleges violations of the sonable steps shall be taken by Respondent to insure that Act not specifically found herein. 10 said notices are not altered, defaced, or covered by any Other material. Hampshire; Respondent has apparently ceased operations and will not (e) Notify the Regional Director for Region 1, in writ- resume operations; Respondent's employees were terminated effective ing, within 20 days from the date of this Order, what J u ne 13, 19 8 1' without any possibility of returning to their former jobs; steps Respondent has taken to comply herewith. no meaningful remedy can now be granted; and further proceedings would be vain, costly, and contrary to the purpose of the Act and the powers of the Board. "0 Bearing the date of June 26, 1981, Respondent filed a post-trial Respon d e n t 's m otion is hereby denied. The matters alleged in the motion, supported by an annexed affidavit of the same date (herein AI motion and affidavit are not part of the record in this cane, as defined by Enh. 1) by its attorney, Peter R. Kraft, Esq., to dismiss the consolidated Sec. 102.45(b) of the Board's Rules and Regulations, Series 8, as amend- complaint on the grounds that, effective June 13, 1981 (subsequent to the ed, and are not properly before me. Moreover, the issues raised by Re- close of the record herein), Respondent's assets have been taken over and spondent's allegations are for the compliance stage of this proceeding. are being liquidated by Indian Head National Bank of Nashua, New See S. Freedman Electric. Inc., 256 NLRB 432, fn. 1 (1981).