Presto Casting Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Presto Casting Company and United Steelworkers of America, AFL-CIO-CLC. Cases 28-CA-6237, 28-CA-6237-2, and 8-CA-6344 June 21, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On February 10, 1982, Administrative Law Judge Russell L. Stevens issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and a supporting brief. The Respondent also filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings," and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Presto Casting Company, Phoenix, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I We agree with the Administrative Law Judge that the Respondent, inter alia, violated Sec. 8(a)(3) and (1) of the Act when it refused to rein- state economic strikers upon their unconditional offer to return to work. While not specifically alleged in the complaint, this matter was litigated at the hearing and, as noted by the Administrative Law Judge, the Re- spondent has failed to meet its burden of showing why the economic strikers could not be immediately reinstated. I In accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an oppor- tunity to present evidence, the National Labor Re- lations Board has found that we violated the Na- tional Labor Relations Act and we have been or- dered to post this notice. WE WILL NOT violate Section 8(a)(5) and (1) of the Act by discontinuing our past practice of giving employees annual Christmas gifts of turkeys, without first notifying or bargaining with the Union; by failing and refusing to ac- knowledge and sign a 1-year agreement with the Union, reached on March 6, 1981; and by refusing to honor and implement the provi- sions of said contract of March 6, 1981, relat- ing to dues checkoffs and employee griev- ances. WE WILL NOT violate Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate economic strikers who were not permanently replaced during their strike, upon their uncon- ditional offer to return to work; and by requir- ing that said economic strikers sign a compa- ny-prepared request for reinstatement as a con- dition of reinstatement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL forthwith sign and acknowledge the contract reached with the Union on March 6, 1981, and give said contract retroactive effect to said date of March 6, 1981. WE WILL make whole all employees who suffered any losses by reason of failure to sign said contract on March 6, 1981, and by reason of our failing and refusing to reinstate econom- ic strikers who were not permanently replaced during their strike, upon their unconditional offer to return to work, with interest. PRESTO CASTING COMPANY DECISION STATEMENT OF THE CASE RUSSELL. L. STEVENS, Administrative Law Judge: This case was heard in Phoenix, Arizona, on September 9, 10, 11, and October 21 and 22, 1981.' The charge in Case 28-CA-6237 was filed on January 9 by United Steel- workers of America, AFL-CIO--CLC (herein called the Union), and an amended charge was filed by the Union on February 10. The complaint, issued February 18, al- leges that Presto Casting Company (Respondent) violat- ed Section 8(a)(1) and (5) of the National Labor Rela- tions Act (herein call the Act), as amended. The charge in Case 28-CA-6237-2 was filed by the Union on Febru- ary 5, an amended charge was filed by the Union on February 10, and a second amended charge was filed by I All dates hereinafter are within 1981, unless stated otherwise. 262 NLRB No. 47 346 PRESTO CASTING CO. the Union on February 27. The complaint, issued March 24, alleges that Respondent violated Section 8(a)(1) and (5) of the Act. The charge in Case 28-CA-6344 was filed by the Union on March 11. The complaint, issued April 14, alleges that Respondent violated Section 8(a)(1), (3),.and (5) of the Act. By Order dated April 14, the Regional Director for Region 28 consolidated said three cases for hearing. The hearing of all three cases was heard as aforesaid. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record,2 and from my observation of the witnesses and their demeanor, I make the following: 1. JURISDICTION 3 Respondent is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Arizona, with an office and place of business at 5440 West Missouri Avenue, Glendale, Arizona, and a heat treatment plant located at 59th Avenue and West Van Buren Street in Phoenix, Arizona, where it is engaged in the production of rough metal castings. During the past 12-month period, which period is rep- resentative of its operations generally, Respondent, in the course and conduct of its operations, purchased goods and materials valued in excess of $50,000 which were transported in interstate commerce and delivered to the Respondent's place of business in the State of Arizona, direclty from suppliers located in States of the United States other than the State of Arizona. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO-CLC is, and at all times material herein has been, a labor organi- zation within the meaning of Section 2(5). II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background4 Respondent is a metal casting firm, which casts alumi- num and magnesium parts for the aerospace industry. Respondent was organized in 1965 by two partners-Mel Borovay, 5 who is president of the corporation, and James Herman, vice president of operations. 6 Respond- ent has two facilities, located at separate locations in Phoenix. The principal facility is the foundry, located at 2 The General Counsel's motion to correct transcript, filed with the brief, is not opposed of record and is granted. 3 Jurisdictional facts are admitted by Respondent in its pleadings. 4 This background summary is based on stipulations of counsel, and on credited testimony and evidence that is not in dispute. · Individuals are referred to herein by their last names. s The supervisory status of Borovay and Herman is not in dispute. 5440 Missouri, and the secondary facility is the heat treatment plant on 59th Street. The Union conducted an organizational campaign among Respondent's employees at both of Respondent's facilities in the fall of 1980. During that campaign, Re- spondent utilized the services of West Coast Industrial Relations Association (West Coast), whose board chair- man is Fred Long. West Coast is a labor and industrial relations organization with many years' experience, and Long, an attorney, has been engaged in the field of labor relations since 1960. The Union's campaign was success- ful, and, on November 12, 1980, the Union was certified by the Board as the exclusive collective-bargaining rep- resentative of Respondent's employees in the following unit: All production and maintenance employees em- ployed by Respondent at its plant located at 5440 West Missouri Avenue, Glendale, Arizona, and its heat treatment plant located at 59th Avenue and Van Buren Street, Phoenix, Arizona; excluding all office clerical employees, guards, and supervisors as defined in the Act.7 On November 21, 1980, James Smith, a long-time staff representative of the Union and temporary subdistrict 8 director for the Union, wrote a letter to Herman, re- quested certain information for negotiation purposes,8 and suggested the dates of December 8, 9, and 10 for ne- gotiations. On December 5, 1980, John Garza, a repre- sentative of West Coast, replied to Smith's letter to Herman and suggested alternative negotiation dates of December 17 and 31, and January 3, because of prior commitments on the dates proposed by Smith. The first negotiation session was held on December 15, 1980, and lasted approximately 30 mintues. In attend- ance for Respondent were Garza and one of Herman's sons. In attendance for the Union were Smith; Arnold Mendivil, an employee who was on the Union's negotia- tion committee; Danny Campbell, an employee who was on the Union's negotiation committee; and Harlin Cor- nett. The next negotiation session was held for several hours on January 7. Some time prior to that meeting Smith had learned that Respondent had not given a Christmas turkey bonus in 1980 as it consistently had done each Christmas for many years, and at the meeting he inquired about the matter. The subject, which is dis- cussed in detail infra, was not settled at the meeting and on January 9 the Union filed an unfair labor practice charge, mentioned above, alleging discontinuance by Re- spondent of the latter's past practice of giving turkeys, because of Respondent's employees having been orga- nized by the Union. Respondent submitted some propos- als, all of a noneconomic nature, which were discussed at this meeting. The Union prepared an economic proposal covering holidays, overtime, cost-of-living, life insurance, a medi- cal and dental program, shift premiums, wages, and cof- As of November 16, 1980, the unit consisted of 161 employees. ' Smith acknowledged that Respondent furnished to the Union during negotiations all information requested by the Union prior to negotiations. 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feebreaks, 9 and gave the proposal to Respondent at the negotiation session of January 14. However, the proposal was not discussed because Respondent first wanted to prepare its economic proposals. Noneconomic matters were discussed at this meeting of January 14, since the Union decided to so use the time while awaiting prepara- tion by Respondent of its economic proposal. The parties met again on January 21, 28, 29, and 30 and February 2, 3, 5, and 10 and discussed noneconomic proposals. On February 2 Smith sent a strongly worded mailgram to Borovay, saying he felt Respondent's representative (Garza) was not bargaining in good faith, and that "a strike seems imminent."'0 On February 5 Long received a telephone call from West Coast's Southern California representative, who ad- vised that there appeared to be a personality clash be- tween Smith and Garza, and that assistance was needed. Long decided to take over the negotiations, commencing with the meeting with the Union scheduled for February 10 at 10 a.m. Long went to Phoenix, and shortly after arrival talked with Garza, Herman, and Borovay, during which conversation he learned that the Union had called a strike on February 9, the preceding day. Long also learned that a principal problem was a dues-checkoff provision the Union wanted, and that another problem was the turkey bonus. Long advised Herman and Boro- vay that they were required to continue the turkey gift as in the past, and they agreed to do so. (This matter is discussed infra.) Long also talked with Herman and Bor- ovay about the "do's and don'ts" of union negotiations. A meeting was held between the Union and Respond- ent the following day, February 10, with the presence of Ron Collotta, a representative of the Federal Mediation and Conciliation Service (FMCS) replacing Sam Frank- lin, who to that time had been working with Respondent and the Union. Long talked separately with Collotta, and, later, talked with Smith and Collotta together. At the meeting Smith told Long, who inquired about the reason for the strike, "We had to shut them down in an effort to get the non-economic issues resolved."" Long asked for some time to prepare a draft of noneconomic proposals, and he left the room to do so. When he later brought the proposals back into the meeting room, he and Smith discussed a few problem areas and then agreed to Respondent's proposals as they were changed 9 G.C. Exh. 6. '0 On February 4 Borovay wrote a letter to Smith, summarizing events to that date and stating, inter alia, "It has been our understanding that an agreement had been reached 'early on' between the parties re: an agenda of bargaining topics-non-economic issues firstly and economic issues last." So far as the record shows, that statement by Borovay accu- rately reflected the agreement of the parties. Smith did not challenge Borovay's understanding. Ai This strike is not in issue. The quotation is from Smith's testimony. There is no allegation of bad-faith bargaining as of this time, and it is clear that the strike of February 9-10 was not an unfair labor practice strike. This conclusion is mandated by the sequence of events and by Smith's lengthy testimony on cross-examination, giving in some detail the negotiations and agreement reached on noneconomic matters prior to and on February 10. Smith testified that the strike was caused by Garza's fail- ure to appear for a meeting scheduled February 9, but it is clear that the strike was in order to put the heat on Respondent for an early contract. It was a very short strike, and Long got negotiations back on the track soon after he arrived in Phoenix on February 10. in a few places. Although Smith and Long had come to an agreement, Smith demanded, and Long supplied to him, an agreement that, if the economic issues were re- solved prior to February 18, Respondent would make wage rates retroactive to the date of the certification of the Union as representative of the unit employees. Be- cause the noneconomic proposals all were agreed to by the parties, and because Smith received an assurance of retroactivity if an economic agreement were reached, Smith called off the strike, and the employees returned to work on February 11.12 At the close of the meeting, Smith and Long agreed to meet on February 17 to dis- cuss economic proposals. Long assured Smith that every effort would be made by Respondent to resolve the eco- nomic issues on February 17. On February 17 Respondent distributed turkeys to all unit employees who were present that day, and those employees who were not present received a certificate to get a turkey.' 3 Respondent caused to be prepared a typed version of the noneconomic proposals agreed to by Smith and Long on February 10. One minor correction subsequent- ly was made, and Garza delivered the final, typed agree- ment to Smith sometime between February 10 and 17.14 The agreement had a coversheet reading as follows: February 10, 1981 The Company reserves the right to change, with- draw or present additional proposals other than the ones outlined here at any time during these negotia- tions. John J. Garza' 5 During the evening of February 10 Long met with Borovay and Herman. Long reviewed the agreement reached with Smith relative to noneconomic matters, and they discussed at length and in detail the economic issues that would be the basis for the meeting of February 17. It was agreed that a principal issue would be the merit system. The Union wanted flat rates for various catego- ries and steps of employment, and Respondent wanted to continue its existing merit increase program. The docu- '" Long credibly testified that Smith asked for, and received, assur- ances that there would be no reprisals against employees who went out on strike February 9; and that Long asked for, and received, assurances that the Board would withhold further action on the charge concerning turkey gifts until February 18. This testimony is given no weight in making findings and conclusions, but it has been considered in assessing the relationship of the parties. "3 The matter of the turkeys continued after February 17 to be an issue, and, ultimately, the parties agreed that distribution of yearend tur- keys would be an established practice. ]4 G.C. Exh. 9. i" Much testimony was devoted to the question of whether, as Smith contends, the agreement of February 10 was "full and complete," and final, or whether it was tentative, as contended by Long. Whatever may be the nature of the agreement itself, Long and Smith concur that they reached an agreement, which is G.C. Exh. 9. It is app'rently from the record, and it is found, that the agreement reached by Long and Smith was intended to be part of an overall contract, if such a contract could be reached, and that, without a total contract, .C. Exh. 9 would not be a separately enforceable contract. Long's testimony, and Garza's cover- sheet quoted above, which was not challenged by the Ugion, support the record on this point. There is no evidence, however, that the parties ever discussed the language on the coversheet. 348 PRESTO CASTING CO. ment the three used as a basis for their later proposals is General Counsel's Exhibit 26. Long cautioned Borovay and Herman that, to reach an agreement, they would be required to compromise their positions on many matters, including wages and promotions. Herman and Borovay met with Long again on February 16 and showed Long what they would offer (indicated on G.C. Exh. 26), but the two would not relinquish their position on the merit increases which the Union opposed so vigorously. Long, Borovay, and Herman met with Smith on Feb- ruary 17, in a session that lasted several hours. Collotta was present, as needed. During the early part of the meeting, Respondent gave the Union a list of Respond- ent's job descriptions,' s and Respondent's "First Eco- nomic Proposal."17 The parties discussed the Union's economic proposals,' 8 and the Union gave Respondent a counterproposal covering wages, shift premiums, holi- days, cost-of-living adjustments (COLA), insurance, and pensions. The term of the agreement proposal was "open."19 Respondent then submitted its counteroffer, labeled "Company's Second Economic Proposal," at 5 p.m. 20 At approximately 5:25 p.m. the Union presented to Respondent its counterproposal to Respondent's coun- terproposal. 21 Long then presented the following note to Smith: JIM SMITH Your 5:25 pm proposal does not appear too seri- ous. Suggest at this time you give us you bottom line proposal that you and your committee would rec- ommend so we cut out the bullshit. If we buy it we can go home. If not we'll know where we stand. Fred A. Long After much further discussion between Long and Smith, at which sometimes Herman, Borovay, and Collotta were present, separately or together, Respondent submit- ted to the Union its final/final offer,2 2 at approximately midnight. At approximately 12:30 a.m., the Union gave to Respondent its further counteroffer. At approximately I a.m., Long replied to Smith: Company's Response to Union's Counter Proposal to Company Final/Final Offer The Company's Final/Final Offer was, in fact, final. Predicated on your last counter proposal to our final offer, noting wages the Union proposed in counter are higher than those proposed in Union's first wages proposal on 1-29-81. It seems safe to conclude we are at impasse in these negotiations. We are not prepared to move further than our final offer. It appears the Union is also not prepared to move further either. If that is the case we suspect l' G.C. Exh. 3. t' G.C. Exh. 12. '8 G.C. Exh.%. 'O G.C. Exh. t3. 2o G.C. Exh. 14. you will advise the mediator your going home so we can go home. Fred A. Long The Union replied to Long: The Union's last proposal was not as final as the companies, however it must be noted that the wages proposed were in direct relations to impor- tance as proposed by the Company and in response to its freezing of employees' rights to Automatic promotion with a Classification. We are here to bargain a Contract and not to make two grown men that own the Company happy, we know they want to retain the same prac- tices they had and if they want they can but they will certainly pay better wages for the privileges of continuing selective promotions. Do what you may, we want a Contract and have spent a lot of time to get it and will spend much more if needed. The Union Long replied to the Union: TO THE UNION (1:00 a.m.) To repeat, the Company's final offer was final. We are sorry you aren't happy with it. However, there no further concessions to be made. Sometimes it is difficult to change long standing practices even with union representation. There are no guarantees that union representation automatically means ev- eryone gets what they want. That is the process of bargaining. Since the Union apparently will not accept the Company's firm and final offer after due considera- tion; and since the Company will not change its offer; we are declaring an impasse in these negotia- tions. Fred R. Long Although the parties did not come to an agreement, they agreed, and Collotta concurred, that a further meet- ing should be held on February 26. The parties met on February 26,23 in Collotta's office. After a brief preliminary discussion, the Union gave Re- spondent an offer, 24 which Long rejected after talking on the telephone with Borovay and Herman. Long re- plied to the Union in writing: The Company has reviewed the Union's offer of 2:10 p.m., Feb. 26, 1981, and discussed it by phone with Mel Borovay, President. The Company is of the opinion the Union is playing games based on its suggested offer and keeping the parties together when it has no intention of accepting the Compa- " G.C. Exh. 15. :2 G.C. Exh. 18. " At the hearing, Long and Smith both testified that the opposing party was not on time. That discrepancy is not resolved and is given no weight. a4 G.C. Exh. 24. 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ny's final offer or anything close to it. The Compa- ny, therefore, rejects the Union's proposal and re- peats it has made its final best proposal to the Union. Unless the Union is prepared to accept the Company's final proposal or to re-arrange the eco- nomics of the Company's final proposal without adding additional economic cost, it unfortunately appears that despite agreement on all language mat- ters, we are hopelessly deadlocked on economics. Submitted 2:30 p.m. FMCS FR Long Company Spokesman Long called Borovay and Herman on the telephone, said there was an impasse, and advised that Respondent could implement its last wage offer, effective immediately. Re- spondent implemented wage increases on February 26. On February 26 the Union negotiating committee sent a letter to all of Respondent's employees: TO ALL PRESTO EMPLOYEES: Dear Fellow Workers: Your Union has had numerous meetings with the expensive firm Jim and Mel. The Company has hired them to keep us working cheap so thay they can live in luxury while most of us can hardly afford to eat. Now we have got to make a very important choice: Either work for what we've got, or strike to better ourselves!/!!! The choice is clearly ours. The Union will repre- sent us. They will talk for us and advise us, but we, the workers, must make the choice ... Some of us are Union Members, some are not. However, we are all low paid, badly treated play things of Jim and Mel's. We are all Presto Employ- ees and must stick together as Presto Employees to advance ourselves to decent wages and working conditions. Would it surprise you if the Company were paying the California firm over a hundred thousand dollars to keep from signing a decent contract? Do you know how much of an increase we could have with a hundred thousand dollars? Just think- the total raise, all together, that was offered was $45.00 per hour cost to the Company! Well, as was said, the choice is ours. We must shoot Presto down tomorrow morning and we must all stay out until we get in our two big bosses' pocket books. A strike vote will be held tonight at 5:00 p.m., at the I.W. Abel Hall, 23 North 35th Avenue, Phoe- nix, Arizona. Please attend and exercise our unity to help shorten the strike!! Smith held a meeting of Respondent's employees the evening of February 26, at which nine employees stated in writing that they had been offered raises effective the following Monday. The employees voted to strike and a strike commenced February 27 at 6 a.m. Some picket signs (commencing the second day of the strike, since it was raining the first day) read "United Steelworkers of America on Strike," and others read "Presto Casting unfair, United Steelworkers of America on Strike." The strike lasted until March 6, when it became appar- ent to Smith that many employees were returning to work, which was weakening the strike. The strike was called off at 2:45 p.m., March 6. Smith advised members of the negotiating committee that he was going to termi- nate the strike and accept Respondent's last offer. On March 6 Smith sent the following mailgram to Respond- ent: THE UNITED STEEL WORKERS OF AMERICA AC- CEPTS THE COMPANY'S FINAL OFFER MADE TO THE UNION ON FEBRUARY 17, 1981. THE EMPLOYEES SHALL BE RETURNING TO WORK STARTING MONDAY MORNING MARCH 9, 1981 AND ALL PICKETS WILL BE REMOVED. THE UNION SUGGESTS AN EARLY MEETING FOR THE PURPOSE OF SIGNING THE AGREE- MENT. PLEASE HAVE FINAL COPIES MADE. On March 9 Long wrote to Smith 2 5 and advised him that, since the Union previously had rejected Respond- ent's last offer, there could be no contract between the parties based on Respondent's last offer. Long suggested further meetings with the Union, for further negotiations. On March 11 Smith sent the following mailgram to Respondent: THE UNION HEREBY UNCONDITIONALLY MAKES AP- PLICATION FOR REINSTATEMENT OF ALL BARGAIN- ING UNIT EMPLOYEES. THESE EMPLOYEES REPORTED FOR WORK ON MARCH 9, 1981 AND WILL REPORT AGAIN ON MARCH 13, 1981. By letter dated March 12, Smith replied to Long's letter of March 9 and stated the Union's position that the parties had a contract, based on Respondent's last offer and the Union's acceptance thereof. On March 16 Smith wrote a letter to Respondent, en- closed checkoff authorization cards of employees, and requested dues deductions for the employees "as per contract," referring to provisions of the noneconomic agreement reached by Long and Smith on February 10. B. Case 28-CA-6237 Paragraphs 9 and 13 of this case allege, in substance, that, on or about December 24, 1980, Respondent dis- continued its past practice of granting Christmas bonuses to unit employees without notice to, or bargaining with, the Union, in violation of Section 8(a)(1) and (5) of the Act. The facts of a lengthy past practice (14 or 15 years) of giving employees Christmas turkeys; of not giving any to employees in 1980; and of giving them to unit employees in February upon advice of counsel, are not in dispute. 2" G.C. Exh. 34. 350 PRESTO CASTING CO. Further, there is no question but what the failure of Re- spondent to give unit employees turkeys in 1980 was a result of the Union's organization of the employees. Fi- nally, Respondent acknowledged that the fact of failure to give unit employees turkeys in 1980 was not bargained with the Union, which then was the employees' exclu- sive bargaining representative, and that the Union was not notified in advance of the failure. Based upon the undisputed facts, it is apparent that, as of the end of 1980, Respondent was in violation of Section 8(a)(5) and (1) of the Act. The principal question on this issue is whether or not Respondent's correction in February of its violation in December relieves Re- spondent of the initial violation. Respondent acknowledges its "mistake," but argues in its brief that, since it made the mistake in good faith, later rectified its error, subsequently bargained about the subject, and included in its contract offer to the Union a provision relative to gifts of turkeys, its "technical" vio- lation does not warrant a remedial order. In support of its argument Respondent cites Bellinger Shipyards. Inc. 26 That case is not the same as the case herein, and is not controlling, since (I) there was no showing in Bellinger that any employee adversely was affected during the il- legal rule's existence. Here, the employees adversely were affected at Christmastime, regardless of the fact that the illegality was "cured" in February; (2) there was no showing in Bellinger that the Respondent there en- gaged in any unlawful act, other than promulgation of an illegal rule which it later rescinded (that is not the case herein, as discussed infra); in Bellinger, the Respondent voluntarily put itself in compliance with the Act. Here, Respondent put itself in compliance only after the Union filed a charge and objected that Respondent's actions were illegal; and (4) the violation in Bellinger was found by the Board to be minimal (Sec. 8(a)(l)). Respondent's illegality in this case is found not to be minimal because of its effect on thie rights of the Union, as well as on the rights of employees. It is found that Respondent violated Section 8(a)(5) and (1) of the Act, as alleged. C. Case 28-CA-6237-2 Paragraph 13 of the complaint alleges, in substance, that Respondent insisted during negotiations upon a wage proposal unacceptable to the Union, based on a merit system; that Respondent implementated its propos- al over objection of the Union; and that the implemen- tion occurred in the absence of a grievance and good- faith bargaining. 1. The wage proposals Both sides made many proposals on many subjects during negotiations, and both sides demonstrated on many occasions their willingness to comprise their posi- tions. As noted supra, there was substantial movement by both sides on noneconolnic items, resulting in agreement and a document embodying those items. As discussed elsewhere herein, Respondent and the Union also com- promised their initial positions on several economic "6 227 NLRB 620 (1977). items, after much hard bargaining. It is clear that, but for the matter of determining wages, as opposed to the amount thereof, the parties probably would have been able to agree. The one item that both sides insisted upon was that of their own systems of how to determine wage increases. Respondent wanted to keep the same sort of merit promotion system it had maintained since it began business, and the Union wanted the kind of system to which it is accustomed; i.e., flat rates with orderly progession of employees in a predetermined manner. The General Counsel argues that Respondent was insistent upon keeping its merit system in order to undermine the Union as the bargaining representative of Respondent's employees, but as discussed herein, the record does not support that argument. It is clear, as found infra, that Re- spondent was insistent upon keeping its system, albeit in a possibly modified form, for sound economic reasons. The General Counsel does not argue that a merit sys- tems per se is illegal, and in fact it is not illegal. Further, it cannot reasonably be argued that such a system is re- pugnant to the Union, because Case 28-CA-6237, dis- cussed below, is grounded upon the contention that Re- spondent now refuses to sign an agreement allegedly reached between the parties, which encompasses the merit system proposed by Respondent in its final/final offer. Therefore, the initial question relative to this issue involves Respondent's motive in standing pat during ne- gotiations. on the matter of merit promotions. Borovay was a credible witness, and his summary of Respondent's sensitivity concerning the Union's desire to eliminate Respondent's merit systems is accepted as accu- rate and truthful. Borovay testified: Respondent is a job shop, which casts aluminum and magnesium aircraft parts for military and commercial customers. The parts are produced to customer specifications, usually in short runs, and are held to very close tolerances. The craft is a dying one, in that it no longer is taught in high schools or colleges. Acquisition of skillful craftsmen for the in- dustry always is difficult, and it is particularly difficult in Arizona, which is not a highly industrialized area. The instances wherein Respondent is able to find skilled craftsmen for its employee complement are rare, yet safety requirements are such that quality control is rigid. Most employees must be obtained "off the street" and trained on the job, yet they must be held to the same ac- curacy standards as skilled craftsmen. The molds are in sand and are heavy, thus the work is hard as well as de- manding. Because of the nature of the jobs, there are many quits and discharges-turnover is high. Capabilities of employees vary, as a result of which some become proficient in a short time whereas others never become proficient. In order to encourage and reward capable employees, and to prevent loading the payroll with low producers, the merit system of promotion has been in effect since the Company started in business in 1965. Such a system is flexible and useful, since it assists in keeping a capable work force and also provides a good basis for estimating prices. The business of Respondent is highly competitive, and protection against cost fluctu- ations and excesses is necessary because of the length of leadtime between orders and production-8 months to 2 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD years. Respondent's business, as well as that of its com- petitors, began to drop late in 1980, and became evident in early 1981. It has steadily declined since that time. A year ago Respondent had 230 employees, both hourly and salaried, and today has 70, of which 13 or 14 are sal- aried and the remainder hourly.2 7 Borovay participated in conversations with Long in negotiations with the Union. Respondent was anxious to get a contract as soon as possible, and to avoid a strike, in order to be able to bid on an intelligent basis and to continue to compete in the depressed market. The Company presently is on a survival basis, and further layoffs are under considera- tion. The two separate plants currently are being consoli- dated into a single plant. Herman testified much the same as Borovay, relative to the nature of the business, business conditions, and the merit system. Relative to the mechanics of the merit system, Herman credibly testified: A merit increase is a reward for excellence. The raises are based on periodic evaluations by Herman, Borovay, and the employee's su- pervisor. Until late 1978, the top rates of employees were appraised annually for possible wage increases and there- after, because of rapid inflation, appraisals were made twice each year, in March and September. However, there is no set system, and some employees at less than the top rates may receive three or four increases in a year. Since 1979, an employee who reaches top wage does not thereafter receive merit increases. Employees reach top pay only through merit increases. No merit in- creases have been given since June 1980, upon advice of counsel, pending agreement with the Union. Across-the- board increases never have been given to employees. The Union's first wage proposal (G.C. Exh. 6) pro- poses a flat rate of pay for 11 types of employees, with no steps or variations among the types, or grades, of em- ployees. The rates range from a low of $4.80 per hour for new hire laborers, to $7.20 per hour for inspectors. Respondent's first wage proposal (G.C. Exh. 12) pro- poses eight grades of employees, with steps "A," "B," and "C" within the grades to account for increased pro- ficiency. The minimum is $4 per hour for a laborer's starting rate; the maximum is $7 per hour for inspectors. Leadmen and specialties were proposed at rates higher than other employees. Respondent proposed that raises above the wages listed be given "in its sole discretion based on merit and job performance," as had been done historically. Respondent's counterproposal (G.C. Exh. 14) has the same starting wage rates Respondent previously pro- posed, but with a provision for automatic progression by years of service from classifications C to B, and B to A. The Union's second wage counterproposal (G.C. Exh. 15) is the same as its original, and its first counterpropos- al. On February 17 Collotta (FMCS) prepared sugges- tions (G.C. Exh. 17) which adopt, in pertinent part, Re- spondent's theory of merit increases, providing that pro- gression from C to B would be automatic after 12 27 This testinmony was given on October 21. Counsel earlier stipulated that, as of September 4, Respondent had 111 unit employees, and as of March 6, Respondent had 188 unit employees. months, and that progression from B to A would be on merit, based on bid and seniority. Respondent's final/final offer is much the same as its last counteroffer, with automatic raises after 90 days, and merit raises thereafter. The A, B, and C classifications are retained. The Union's counterproposal to Respondent's final/final offer shows a slight reduction in wage amounts, but retains the Union's basic insistence upon flat rates for all three classifications, A, B, and C, with no allowance of merit increases. 2. Discussion The above summary does not reflect the fact that, during negotiations, each side made several concessions and offers of a minor nature. Further, the actual amounts of wage differences of the two sides were not great. If amounts alone were the cause of failure to agree, it ap- pears that an agreement would have been forthcoming. It is apparent that one thing only stood in the way of agreement. Neither side was prepared to yield on the merit issue. So far as motive is concerned, there is no evidence, or even suspicion, that Respondent was out to break the Union, or interfere with it, but insisting upon a merit system. It had a practice of many years standing that had been successful. It did not want to abandon that system for the untried one the Union insisted upon as a replace- ment. Respondent offered some dilution of its system, and Collotta suggested a modified merit system. Howev- er, the Union would not yield either to Respondent or to Collotta. It insisted to the end, upon a flat-rate system Respondent did not like or want. Respondent did not show bad faith or intransigence-to the contrary, it is ap- parent that Respondent did not want a strike, was will- ing to compromise, and bargained to the best of its abili- ty, in good faith. Finally, it is noted that the ilnion did not budge in its demand for a flat rate system, nor did it offer any sug- gested compromise, nor did it offer any proposal for par- ticipating in a merit system. The Union had struck Re- spondent early in F:ebruary, and made it clear that an- other strike was a possibility. From early in negotiations, the Union seemed to be strike-minded. On January 9 the Union already had set a "deadline of January 31" for its obtaining a "decent contract" (Resp. Exh. 8); on Febru- ary 10 the Union was preparing for a strike by selecting captains and planning for strike relief and food stamps (Resp. Exh. 9); on February 18 the Union exhorted all of Respondent's employees carefully to consider a strike (Resp. Exh. 11).Z8 3. The impasse The fact that a grievance did not exist when an im- passe occurred, which fact is alleged in the complaint, is not in dispute but that fact is immaterial. The fact of impasse clearly is established by the record. It is apparent from the testimony qf Long and 2" The General Counsel acknowledged at the hearing that there was no allegation of bad-faith hbargaining by Respondent prior to February 17. 352 PRESTO CASTING CO. Smith, discussed in part above, that they considered themselves at impasse at the close of the session on Feb- ruary 26. Celestino Torres, one of the Union's representatives, attended most of the negotiation sessions and many meet- ings of Respondent's employees, including the one held on February 26, which was chaired by Smith. At the meeting Smith reported to employees what had occurred earlier in the day, at the negotiation session with Re- spondent. Torres kept notes of the employee meeting, and identified those notes as Respondent's Exhibit 18. Page 2 of those notes states, inter alia: Meeting today - Report Reject the Union proposal We are deadlocked 2 Alternatives - to sign last offer or strike the Company On February 26 the Union's negotiating committee ad- dressed a letter to "All Presto Workers," 29 reading in part as follows: Well, as was said, the choice is ours. We must shoot Presto down tomorrow morning and we must all stay out until we get in our two big bosses' pocket books. A strike vote will be held tonight at 5:00 p.m., at the I.W. Abel Hall, 23 North 35th Avenue, Phoe- nix, Arizona. Please attend and exercise our unity to help shorten the strike!! Mendivil testified that he attended the employee meet- ing of February 26, and that the employees decided "we weren't getting anyplace with the company and that we would have to go on strike." The principal question on this issue is whether the im- passe was reached as a result of good faith, hard bargain- ing, or, as alleged by the General Counsel, as a result of Respondent's bargaining in bad faith. The principal moves of both sides during the final bar- gaining session on February 26 are disclosed above. Based on those moves, it is clear that both sides bar- gained hard, that both compromised on several positions, that both appeared anxious to reach an agreement, and that the principal impediment was the merit system. 3° In assessing the fides of the parties, it is necessary to consider the witnesses and their demeanor. Long and Borovay were impressive. Long's recitation of events at the bargaining sessions of February 17 and 26, and at- tendance of private sessions with Borovay and Herman, was lengthy, detailed, complex, and, in several instances, supported by documentary evidence. The possibility of lacing such a presentation with manufactured testimony 's Resp. Exh' I1. 10 It is noted that the parties were bargaining for an initial contract; they had no bargaining history. Whether either party, or both parties, would retreat from their positions if and when a second contract was ne- gotiated is spechlative. However, the question of ides must be considered in light of the relationship between Respondent and the Union. Obvious- ly, the bargaining stance of the parties was considered by the Union when it later contended that its offer must be accepted by Respondent. seems very remote. Long was cross-examined but briefly, and his testimony withstood that cross-examination quite well. Long is credited, and his explanation of events at the two February sessions is accepted as accurate. Boro- vay, who corroborated Longe in several matters, was credited above. Smith's testimony was not of the same calibre as that of Long, and his demeanor throughout the hearing was not as impressive as that of Long. Smith appeared to be quick to allege bad faith, and to accuse Respondent of doing wrong things. His testimony was less lengthy and detailed than that of Long, and he exposed much on cross-examination that explained his direct examination. As between the two, upon whose versions a finding must in large measure rest, Long appeared to be the more reli- able. Based upon the sequence of events of February 17 and 26, and upon the testimony of record, it is clear, and found, that Respondent did not, as alleged, cause or con- tribute to an impasse in negotiations with the Union by acting or bargaining in bad faith. The General Counsel argues that the fact of impasse after only one or two meetings indicates Respondent's bad faith, and cites cases in support of that proposition. However, neither those cases nor commonsense teach that an impasse may not be reached at even a single ses- sion. Facts of cases differ. Here, Smith already had set a deadline of January 31 for a contract, and throughout the record it is apparent that Smith was in a hurry. On one occasion, February 9, he called a strike solely in order to speed up the bargaining process. Prior to Febru- ary 17 Smith repeatedly pressed Long for early action, and obtained Long's assurance that Respondent's com- plete and final economic proposal would be presented to the Union on February 17. That proposal was given, but the Union did not accept it, or offer reasonably to com- promise the principal issue preventing agreement. Final- ly, Smith agreed with Long, that there would be no re- troactivity unless the parties could reach agreement for a contract no later than February 18. Under such circum- stances, on impasse as of February 26, when both sides held to their last offers was a logical conclusion of bar- gaining efforts. Neither side was in a mood to bargain further, and the fact that numerous bargaining sessions were not held thereafter, does not bring into play a legal proposition that Respondent was bargaining in bad faith. The Union was trying to force Respondent to give up a personnel practice of longstanding, dating from the in- ception of Respondent's existence, and substitute therefor a system of promotion that was alien to Respondent and to the peculiarities of Respondent's business. It is under- standable that Respondent would bargain hard to resist a system that did not take into account the fact that ap- proximately 90 percent of Respondent's employees were hired without experience. Respondent trained nearly all its employees, and the dictates of business would militate against rewarding all employees with promotion in ex- actly the same manner, as the Union insisted upon. There is nothing in this record to show that Respondent was acting in bad faith when it was willing to take a strike rather than to change its promotion practice to suit the Union. Further, it was Respondent, not the Union, that 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offered a compromise position for both sides. That offer was rejected by the Union, without making a realistic counteroffer. The Union pushed Respondent to the limit, and is not in a position now to complain that Respondent acted in bad faith by not giving up the fight.a' 4. Implementation of Respondent's wage proposal Paragraph 14 of the complaint alleges that, on or about February 26, Respondent announced and unilater- ally implemented its economic proposal. The wage pro- posal referred to is Respondent's final/final proposal sub- mitted to the Union on February 17. As discussed above, the parties reached an impasse on February 26 and did not reach an agreement for a bar- gaining contract, primarily because of a difference con- cerning merit promotions. On February 18 Borovay wrote a memorandum to all of Respondent's employees, stating that Respondent had negotiated with the Union on February 17 until I a.m. Attached to the memorandum was a copy of Respond- ent's final offer to the Union. There is no dispute concerning the fact that, during the afternoon of February 26 and on February 27, Herman met individually in his office with approximately 50 employees and their supervisors. Herman credibly tes- tified that he said the same thing to each employee; i.e., "On the advice of my counsel, I understand that we are now at impasse. And on the advice of my counsel . . . I now may effectively implement our wage proposal. As of March 3, your wage will be . . . including merit." The amounts of wages quoted to employees were the amounts that are encircled on General Counsel's Exhibit 26. Herman testified that, in order to reach an agreement with the Union as early as possible, and to protect Re- spondent against another strike, all unit employees were evaluated for merit increases in advance of the negotia- tion scheduled for February 17. The evaluations com- menced in late January and were attended by Herman, Borovay, and appropriate supervisors. Representatives of West Coast were in attendance at some, or possibly all, the evaluations. The amounts proposed as merit increases for all employees are at the extreme right side of the General Counsel's Exhibit 26. Herman testified that the amounts of the increases are in accordance with past practice.3 2 He further testified that, in giving the raises, Respondent took into consideration the fact that employ- ees had not been given raises since June 1980. The General Counsel first argues that the increases given to employees were not given in the face of a real impasse, since the impasse was achieved by Respondent a' The General Counsel's argument that Respondent's proposal was unconditional, and would deprive the Union of any substantial participa- tion in wage establishment, is without merit. The proposal, as compro- mised by Respondent, did provide the Union with substantial participa- tion in timing, amounts, regularization of reviews, and minimum rates of wages for unit employees. Further, as previously noted, the Union agreed to accept Respondent's offer after its strike failed. 3' Counsel stipulated that unit employees received a wage increase on February 26, as shown by circled amounts on G.C. Exh. 26, and that unit employees have not, to date, received another wage increase from Re- spondent. in bad faith, in order to undercut the Union. The record does not support such a finding, as discussed above. The General Counsel argues that "The Respondent's unilateral wage increases on February 26, determined before the first economic offer was presented, derogated the Union's representative status, was tantamount to dealing directly with the employees, and clearly violated Section 8(a)(l) and (5) of the Act." 33 However, that ar- gument misses the point. Respondent's purpose in prepar- ing General Counsel's Exhibit 26 was not to undercut the Union, or to deal directly with employees. The pur- pose was to assist in preparing an offer to the Union, and no employee was told that he was being evaluated or would be offered a raise. The figures originally arrived at were tentative, often were changed, and reflected how far Respondent was prepared to go in negotiations. The first time employees were told about raises was after the Union and Respondent were at impasse. The General Counsel argues that, even assuming a good-faith impasse, Respondent's implementation of raises was a violation of the Act because it was an imple- mentation of only a part of its last offer to the Union, and, further, that Respondent's implementation must be "reasonably comprehended within the employer's preim- passe proposals,"34 which it was not. In view of the nature of an impasse, there is no re- quirement that an employer who implements some of his proposals, must implement his entire proposal. As the Board stated in Hi- Way Billboards, Inc.:3 5 A genuine impasse in negotiations is synonymous with a deadlock: the parties have discussed a sub- ject or subjects in good faith, and, despite their best efforts to achieve agreement with respect to such, neither party is willing to move from its respective position. When such a deadlock is reached between the parties, the duty to bargain about the subject matter of the impasse merely becomes dormant until changed circumstances indicate that an agreement may be possible. Once a genuine impasse is reached, the parties can concurrently exert economic pres- sure on each other, the union can call for a strike, the employer can engage in a lockout, make unilat- eral changes in working conditions if they are con- sistent with the offers the union has rejected, or hire replacements to counter the loss of striking employ- ees. Such economic pressure usually breaks the stalemate between the parties, changes the circum- stances of the bargaining atmosphere, and revives the parties' duty to bargain. Thus, a genuine impasse is akin to a hiatus in ne- gotiations. In the overall ongoing process of collec- tive bargaining, it is merely a point at which the parties cease to negotiate and often resort to forms of economic persuasion to establish the primacy of their negotiating position ... Is G.C. br., p. 14. a4 Pease Company, 251 NLRB 540, enfd. 603 F.2d 225 (9th Cir. 1979); Providence Medical Center, 243 NLRB 714 (1979). 3' 206 NLRB 22, 23 (1973). 354 PRESTO CASTING CO. The General Counsel argues, however, that, in not im- plementing benefits other than wages, Respondent did not implement what was "reasonably comprehended" by its final/final offer, and, further, that the new wages for employees included merit increases that exceeded the amounts of past merit increases; included merit increases for employees (top grades) who in the past received only nonmerit increases; and constituted an across-the-board raise that in the past had not been given to employees. So far as not implementing proposed benefits as well as wages is concerned, that omission does not, of itself, invalidate Respondent's actions. That portion of its pro- posal implemented by Respondent is entitled: "I. Wages/Classifications/Grades." The "Other Economics Proposed" starts with section II. Under the law enunci- ated above, all matters other than wages still are out- standing, possibly later to be the subject of negotiation. Benefits, as well as all items other than wages, classifica- tions, and grades, are "dormant" until they are again taken up by the parties. A different question is the one that relates to the merit raises. In his brief, the General Counsel does not clearly distinguish Respondent's final/final proposal from the rough worksheet Respondent used in evaluating, classify- ing, and grading its employees for the purpose of negoti- ating with the Union. So far as the record shows, Re- spondent's announced wage increases did not depart from its final/final proposal, although the record is not complete, in that starting dates are not shown for all em- ployees subject to the proposal. The proposal has auto- matic start rates and progressions after 90 days. Thereaf- ter, the amounts to be given at 6 months and beyond are to be given on "merit," with no predetermined figures shown. It is this last fact, of course, that the Union ob- jected to during negotiations. The record also is not complete in that it does not include an exact comparison of past raises for all employees, with the raises given on February 26 and 27. The General Counsel argues that the new raises are substantially more than past raises, but that is speculative, since exact comparisons are not, and possibly could not, be made, and, further, no raises were given between June 1980 and February 1981.36 Equally incomplete is the record so far as "top grades" are con- cerned. Some of them got raises February 26-27, as the General Counsel points out, but Herman testified that those grades were evaluated once or twice each year and given raises, even though they did not participate in merit raises. The fact that General Counsel's Exhibit 26 shows those individuals as scheduled for increases, does not, in and of itself, establish a departure from past prac- tice. So far as the "across-the-board" nature of the raises is concerned, Herman testified, as stated by the General Counsel, that he could not remember any such raises, but that there may have been raises for "80 percent, what- ever." When later he was questioned, he said he did not think they ever gave 100 percent of the salaried employ- ees raises. The record is not complete or conclusive on this point, but it is clear that, even as of February 26-27, 35 This failure to give raises is not alleged, and is not found, to be a violation of the Act. not all employees were given raises. No employees' wages were reduced, however. Although the record is not as clear or complete as it could be, it is clear that the parties arrived at an impasse on the matter of merit raises; that Respondent thereafter gave raises that encompassed both automatic progres- sions and merit increases; and that the raises substantially were in accord with Respondent's final/final offer to the Union. The Union was informed by Long of Respond- ent's intended action, and the Union was aware of the nature of the proposed increases as a result of negotia- tions based on General Counsel's Exhibit 26. No viola- tion of the Act is found, so far as this issue is con- cerned. 37 5. Alleged interrogation by Jarling Paragraph 17 of the complaint alleges that, on or about October 30, 1980, and on various dates thereafter, Walter Jarling coercively interrogated employees con- cerning union meetings. Jarling,3 8 who no longer works for Respondent, was a coreroom supervisor for Respondent at times relevant herein. Raymond Maestas, no longer an employee of Re- spondent, testified that, from October 1980 through March 1981, he was employed by Respondent and that his supervisor was Jarling. Maestas said he was a union organizer, and a member of the Union. Beginning prior to Christmas 1980 he wore union insignia at work, two or three times each week. Maestas testified: During the Union's organizational campaign, Jarling frequently ques- tioned him about union meetings, the days following the meetings. Jarling asked how many people attended the meetings, and asked the names of those who attended. Those conversations occurred in late 1980 and on many different occasions until after March 6, 1981. Jarling testified: During late 1980, and well into 1981, when the Union was holding meetings over beer in a lounge, Maestas and employee Manny Sianez frequently asked him to go to the meetings with them. The witness declined the invitations, which he received once each week for 2 weeks. After the meetings were moved to the union hall, he received no more invitations. Jarling testi- fied: Q. The day after the meeting, did you have con- versations with Mr. Maestas about the meeting? A. No. The only thing that-when they had them over to the beer bust and he'd come back in the morning, I'd say "Well, did you get a load on last night?" And he would say-well I'd say to him did you have enough beer and he would say "No, I don't drink beer, they buy me liquor." 3' The General Counsel argues that Respondent's bad faith is shown by the fact that Respondent started negotiations after it already had begun to evaluate employees, thus Respondent went into negotiations with fixed intentions. However, as pointed out above, the core issue was not amounts of pay-both sides showed some willingness to compromise amounts. The real problem was the matter of merit raises, irrespective of the amounts of those raises. Respondent implemented what it argued for during negotiations-a combination of fixed rates and merit raises. 36 Jarling's supervisory status is admitted by Respondent. 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Have you told us everything that you recall about any conversations that you had with Mr. Maestas, concerning the Union? A. Well, only one time-well, it was after the first strike, that they were on, he had told me that he didn't know whether he should go with the Union anymore. And he had buttons and caps that he was wearing and he took it all off and even gave me a couple of those pencil clip holders from the Union. Jarling denied that he ever asked Maestas how many people attended the meetings, or who attended them. He said that was not necessary, since the identity of those who went was common knowledge in the shop. Discussion Jarling was an impressive witness. He was an older person who appeared to be retired, and seemed quite sin- cere and candid. He was not cross-examined. Because of the absence of support for Maestas' testi- mony, and the convincing nature of Jarling's recitation, Jarling is credited and it is found that this allegation was not proved. 6. Alleged statements by Jarling and Bustos Paragraph 18 of the complaint alleges that, on or about February 2 and 5, John Bustos and Jarling, respec- tively, advised employees that unit employees would re- ceive wage increases if they did not support the Union in the event of a strike. Bustos has been a supervisor of the aluminum foundry since August 1980.39 Maestas testified that he talked with Jarling in Febru- ary, on a date he cannot remember, but prior to the strike of February 9: A. Well, he was telling me that whoever passes the picket line would automatically get a raise. Q. Did he say anything else? A. Oh I asked him how much of a raise the em- ployees get. He said between $.50 and $.35 an hour more. Q. Was anything else said? A. Yes, I asked him how much of a raise I would have gotten, you know, if I'd pass the picket line. He told me $.50 because I'm a shell core operator and I told him about my wife, you know, for coin- cidence how much she'd be getting if she passed the picket line. He said $.35. Jarling testified that he never told Maestas, or anyone else, that he would earn more money if he crossed a picket line. Robert Koller, a laborer for Respondent from March 1980 until August 14, 1981, testified that he talked with Bustos, his supervisor, on February 4: Q. Mr. Koller, during your conversation with Mr. Bustos, was anything said about a raise? 3s Respondent admits Bustos' supervisory status. A. Yeah, he said people who crossed the picket lines would get their raises and that these raises were being offered to everybody if we accepted the contract, but if you crossed the picket line you would get the raise. Bustos testified that he frequently talked with Koller, mostly about sports, and denied that he ever talked with Koller about the Steelworkers Union. He said he remem- bered talking with Koller in February, when Koller ap- proached him: Before I-you know, I used to work in construc- tion and I was in the Union and he just asked me if the Union was good. I said, "If it was good, I wouldn't be here." I said because it would be good but-I told him, you know, I was laid-off a lot of times, you know. Worked two or three weeks then go back and work another week and laid of again, so I just, you know, quit the Union. Bustos said he told Koller that his former union was La- borers International. Bustos denied telling Koller that Respondent would pay employees who would cross a picket line, and he testified that, in February 1981, he knew nothing about negotiations between Respondent and the Union. Bustos further testified that he talked with Loera sometime in February: . . .He came to me one morning and he asked me about this. He said, "Hey John, it is true that if we cross the picket line we get more money?" I was surprised, I didn't even know myself. You know, I said, "I don't know, why?" He said, "Well you know what I heard." At that time there was another supervisor there, Ralph Fazzari, so I went and asked him. I said, "Hey Ralph," I told him what happened, you know, "Is it true that if you cross the picket line?" I said, "No I don't know. I don't think so, I haven't heard nothing." I just went back and told him. That was it. That was that con- versation right there. Q. You went back and told Norberto that, no he wasn't going to get anymore money? A. That's right. Herman testified that, sometime in February, he met with employees Joe Rodriquez, Pasqual Estrada, Norbert Loera, Cas Loera, and Roy Rois, after Rodriquez initiat- ed a conversation. Rodriquez was the spokesman, and asked why he could not receive more money for having crossed the picket line during the strike of February 9 and 10. Herman said he replied: I responded and told him he knew bloody well that we couldn't do that. It was illegal. No promises had been made to him. He responded to me, "Well damn it, it ought to be worth something, and if that's the case, you're telling me we're no different than those blankety-blanks who went out." I told Joe that it was illegal, as we have told them all along. That we had made no promises to anyone and what he did with his actions was his affair. 356 PRESTO CASTING CO. Ralph Fazzari, a foundry supervisor,40 testified that he talked with Rodriquez several days after February 10, and that Estrada also was present. Fazzari testified that Rodriquez wanted to know why there was not any more money in the paycheck that day, because he crossed the picket line during the strike and expected more money. Fazzari told Rodriquez such an idea was "totally un- founded" since Respondent was restricted by law from rewarding employees for crossing picket lines, and he asked Rodriquez the source of such an idea. Rodriquez could not give the answer. Fazzari was present when Herman met with the employees named above, and gen- erally corroborated Herman's version of that meeting. Fazzari corroborated Bustos' testimony concerning Bustos' inquiry after talking with Loera. Discussion The credibility of Maestas and Jarling are discussed above. Jarling was not cross-examined. The only basis for resolving this issue is the credibility of witnesses. Their testimony was brief, and each is with- out independent support. Maestas' testimony appeared on its face to be doubtful, since he testified that Jarling told him the amount of the raise for refusing to cross a picket line (note-in the future, since there was no strike until February 9) depended upon work classification, and Maestas quoted the amounts of the alleged possible raises, both for himself and his wife. The two subjects- crossing the picket lines and receiving raises based upon work classification-seemed so unrelated that the possi- bility of confusion in Maestas' mind suggests itself. As previously discussed, Jarling was an impressive witness, who no longer works for Respondent. He is credited, and no violation of the Act is found, so far as this allegation is concerned. So far as the other testimony on this issue is con- cerned, it is noted initially that neither Loera nor Rodri- quez, nor any other unit employee allegedly involved, was called to testify. It is apparent that the possibility of employees being rewarded for crossing picket lines was common shop talk in February. The source of that rumor was not established, but, at the time it was being passed around, another subject also was uppermost in employees' minds; i.e., the possibility of a strike. Both Respondent and the Union were keeping employees ad- vised of negotiation developments, and those negotia- tions were a subject of much employee concern and in- terest. It is not possible, on the record, to determine whether some employees who crossed the picket line ex- pected, and requested, an after-the-fact reward for so doing, or whether Respondent made an offer to reward employees if they later crossed the line. Maestas spoke of future rewards, by way of raises based upon job classifi- cation, and Koller spoke of merely being paid to cross the picket line. Bustos testified that Loera asked him about "more money" if employees crossed the picket line, and Herman testified that the group of employees he met with wanted "more money" for having already crossed the picket line on February 9 or 10. 40 Fazzari's supervisory status is not in dispute. Commencing in January, Garza and Nels Umble of West Coast began meeting with Respondent's supervisors and instructing them in the "do's and dont's" of union organization. At least four meetings were held in January and February, and Herman and Borovay were in attend- ance. Herman credibly testified that he impressed upon supervisors the requirement that they closely abide by the instructions of Garza and Umble. Herman and Boro- vay credibly testified that a "Strike Guide for Manage- ment" 41 was discussed at a meeting of supervisors in February, and that it was explained in detail by Garza and Umble. The fact that supervisors were trained in organization- al conduct is not controlling, but, in the absence of direct evidence other than the testimony of witnesses involved in alleged violations of the law, that fact must be, and is, considered. In view of the inconclusive testimony of Maestas and Koller, and the contradictory testimony of other wit- nesses involved in this allegation, it cannot be said that the record supports a finding that Respondent violated the Act as alleged. A possible scenario would be that Re- spondent first told some employees that they would be rewarded if they crossed the picket lines, but later, upon learning that such action would be illegal, recanted the promise. However, that scenario is highly speculative, and is not accepted. This allegation is not supported by the record. D. Case 28-CA-6344 I. Paragraph 20 of the complaint alleges that the strike of February 27 to March 6 was an unfair labor practice. In order to sustain the burden of proof on this issue, the General Counsel would have to establish that Re- spondent's unfair labor practices caused the strike, or caused the strike to be prolonged. As shown above, Respondent committed only one unfair labor practice-it refused in 1980 to give unit em- ployees their usual Christmas turkeys. However, also prior to that strike, Respondent gave employees the tur- keys in February, and also embodied in their proposal to the Union a provision relative to Christmas turkeys. The employees knew of Respondent's proposal prior to Feb- ruary 27. The General Counsel argues that Respondent's unfair labor practices were discussed at the employee meeting of February 26, but the only unfair labor prac- tice they could have discussed concerned the turkeys, and it is quite clear that the employees did not strike, wholly or partially, because of the turkeys. The reason for the strike was the failure of the Union to bring Respondent to heel on the merit pay issue. That fact is shown beyond any reasonable doubt, throughout the record. Smith made it clear in his testimony that money was the basis of the strike. Koller testified rela- tive to the employee meeting of February 26: Well, the purpose of the meeting was to go over the economic proposal. If we did not like it, we '4 Resp Exh. 3. 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would go on strike again for a better economic pro- posal. By letter to Respondent's employees on February 18,4 2 the Union's negotiating committee stated, inter alia: "However, the choice is yours. You can strike now and maybe lose or you can wait until we can better economi- cally hurt Borovay and Herman." That letter did not mention unfair labor practices. On February 26 the Union's negotiating committee again addressed a letter to "All Presto Workers" and stated, inter alia: "Either work for what we've got or strike to better ourselves." The letter also stated, "... the choice is ours. We must shoot Presto down tomor- row morning and we must all stay out until we get in our two big bosses' pocket books." The letter did not mention unfair labor practices. Strong testified relative to the employee meeting of February 26, and said, "Well, mostly we went back to tell the people what had been said at the meeting and what had been done." Strong mentioned nothing about unfair labor practices. In view of the foregoing, it cannot be found, and is not found, that this allegation is supported by the record. The indicia of an unfair labor practice strike were not shown. 4 3 The General Counsel argues that Smith frequently dis- cussed with employees the fact that Respondent was guilty of unfair labor practices and that some of the picket signs referred to unfair labor practices. It is noted that similar allegations frequently were made at the hear- ing and elsewhere in the record. However, those state- ments are supported only to the extent shown herein, and making the statements does not alone establish com- mission by Respondent of unfair labor practices. It is clear that Respondent's employees and the Union were motivated only by one thing when they struck-the desire to obtain a better contract than would result from accepting Respondent's proposal. It is noted that, after the strike failed and the Union offered to accept Respondent's proposal, nothing was said about unfair labor practices. The argument then cen- tered solely upon whether or not the Union would accept Respondent's offer. 2. Paragraph 12 of the complaint alleges that, on March 6, the Union accepted Respondent's final/final proposal, and paragraph 13 alleges, in effect, that, since March 6, Respondent and the Union have been bound by that contract. Smith sent Respondent a mailgram on March 6, quoted supra, stating inter alia, that the Union accepted Respondent's final offer made on February 17. (This refers to what Respondent calls its final/final offer.) Other than that mailgram, Smith did not talk with, or send any correspondence to Respondent or West Coast. Campbell credibly testified that, on March 6, he in- formed Garza that the Union was terminating the strike and accepting Respondent's final offer and stated, "Now we've accepted this final proposal. You're not going to i4 Resp. Exh. 10. 4' Alco Venetian Blind Co.. Inc., 253 NLRB 1216 (1981); Gulf Envelope Company, 256 NLRB 320 (1981). piss backwards on us, are you?" to which Garza shook his head and said, "No." Garza did not testify. Garza and Campbell (a member of the Union's negoti- ating team, and a strike captain) were agents of West Coast and the Union, respectively. As contended by the General Counsel, Garza's knowledge is imputed to Re- spondent, and it is found that, as of approximately 2:45 p.m., on March 6, Respondent knew that the Union was accepting Respondent's final/final offer. The fact that the parties reached an agreement on Feb- ruary 10 relating to all noneconomic items is not in dis- pute, as discussed above. Although Garza indicated on the coversheet of the noneconomic proposal that Re- spondent reserved the right to change, withdraw, or present additional proposals on noneconomic items, there is no evidence that the stated right ever was exercised. So far as the record shows, the proposal remained un- touched and still existing as of March 6. Although, as noted, the noneconomic agreement was not a separate, enforceable contract, it nevertheless represented a por- tion of a contract to which the parties had agreed, and the fact is not in dispute that the parties treated econom- ics and noneconomics separately. Respondent was not prepared to offer any economic proposals until nonecon- omic matters had been agreed to. The sequence of nego- tiations followed the desires of Respondent, acceded to by the Union. The General Counsel principally relies on Pepsi-Cola Bottling Company of Mason City, Iowa, 251 NLRB 187 (1981), enfd. 659 F.2d 87 (8th Cir.), in support of the proposition that a counteroffer does not necessarily reject a bargaining agreement offer, although under gen- eral contract law a counteroffer constitutes rejection of an offer. The facts of Pepsi-Cola, while not exactly the same as those herein, essentially are the same, and the law of Pepsi-Cola controls this issue. In that case the Adminis- trative Law Judge stated, inter alia: There can be no quarrel with Respondent's view that under strict principles of contract law, an offer, once rejected, no longer exists. However, as the General Counsel observes, ". . . the Board is [not] strictly bound by the technical rules of contract law." N.L.R.B. v. Donkin's Inn, Inc., 532 F.2d 138, 141-142 (C.A. 9, 1976). Consistent therewith, in a ruling which I find not materially distinct from the issue framed here, the Board held that an employer violated Section 8(a)(5) of the Act by its refusal to enter a written agreement based on its previously made complete contract proposal accepted by the Union, but only after the latter had rejected that offer on two prior occasions. See Penasquitos Gar- dens, Inc., 236 NLRB 994, 995, enfd. 604 F.2d 225 (C.A. 9, 1979). As I understand the precedent of the Board, a complete package proposal made on behalf of either party through negotiations remains viable, and upon acceptance in toto must be executed as part of the statutory duty to bargain in good faith, unless expressly withdrawn prior to such accept- ance, or defeased by an event upon which the offer was expressly made contingent at a time prior to ac- 358 PRESTO CASTING CO. ceptance. Respondent in the instant case took no such steps and when the Union abandoned all col- lateral demands, and elected to accept this complete package, a binding agreement was consumate. Long testified that, after Garza told him what Camp- bell had said about the Union accepting Respondent's final/final offer,44 he ". . . instructed Garza to call FMCS and advise FMCS that we pulled the offer off the table." Long testified that Garza later told him that FMCS had been notified, and Smith testified that Col- lotta told him at approximately 3:45 p.m. (note: which was approximately 1 hour after Campbell talked with Garza) that Respondent had withdrawn its final/final offer. Respondent did not receive the Union's acceptance mailgram until March 7, but that is immaterial in view of Campbell's conversation with Garza.4 5 Long's immedi- ate reaction after his talk with Garza was his recognition of the fact that technically, under ordinary contract law, Respondent's offer had to be withdrawn prior to notice of acceptance having been received. However, Long acted after Respondent already had been notified of the Union's intent to accept. As pointed out by the General Counsel, the inquiry is whether the parties had reached agreement, not whether technical contract law had been adhered to.4 6 Respondent argues that the offer of February 17 was conditional upon several factors, and thus was not an offer that could ripen into a contract by acceptance. In support of that argument Respondent refers to the lack of a date certain for implementation of new contract rates; lack of dates on which various wage increases would be implemented; the fact that the Union's propos- als of February 26 compelled Respondent to withdraw its prior offer of retroactivity and all fringe benefit con- cessions; the fact that Smith alone accepted Respondent's offer, after Respondent's employees already had rejected the proposal; and the fact that, unlike in Pepsi-Cola, the collective-bargaining process here had been complete as of February 26. Respondent's arguments are considered to be without merit. Respondent's final/final offer is clear and unambi- guous. It is for a I-year term. A lengthy explanation under "Progression" on pages 2, 3, and 4 of the offer re- moves any question about the application of starting rates of employees, and rates to be applied thereafter. In view of Respondent's bargaining stance, and its insis- tence upon the finality of its proposal, it is unrealistic to contend that the proposal contained any doubt, or con- tingencies, or conditions. So far as Smith alone accepting the offer is concerned, there is nothing to show that his action was improper or illegal-Smith was the employ- ees' elected representative. Further, the employees aban- doned the strike and returned to work as Smith advised 44 Long testified that Garza's information was a rumor, but Garza did not testify, and Campbell's direct testimony on this point was credited supra. 45 The fact that contract law in the ordinary sense would require writ- ten, rather than oral, acceptance is not considered controlling herein. Garza had actual notice of acceptance, and only that actual notice trig- gered Respondent's attempted withdrawal of the offer. 46 Penasquilos, supra, Donkins Inn. Inc., 532 F.2d 138 (9th Cir. 1976), cert. denied 429 U.S. 895. Respondent they would. So far as the bargaining process is concerned, the Union represented the employees when the contract was accepted, and that representation did not cease only because the parties arrived at impasse. Further, the fact that 'impasse was reached and bargain- ing broke off did not sever the relationship between the parties, nor did it affect the responsibilities of the parties to continue to bargain. The impasse was brought about by failure to agree upon only a part of a contract, and resulted only in a dormant-not a dead--relationship be- tween Respondent and the Union. 4 7 It is found that Respondent and the Union agreed upon, and are bound by, all terms of a contract effective March 6, 1981; that those terms are embodied in the General Counsel's Exhibits 9 (noneconomic) and 18 (eco- nomic); that the Union requested, and Respondent re- fused, Respondent's recognition and execution of the contract; and that Respondent's refusal to recognize and execute the contract violated Section 8(a)(5) and (1) of the Act, as alleged. 3. Paragraphs 17 and 18 of the complaint allege, in effect, that Respondent has repudiated and failed to comply with the provisions of the contract of March 6. The contract between the parties provides for the processing of grievances and wage checkoffs for union dues. On March 9 the Union presented grievances to Re- spondent on behalf of unit employees, and Respondent refused to accept or process them. On March 16 Smith requested dues checkoffs on behalf of unit employees and Respondent refused that request. In May the Union again presented grievances to the Union on behalf of unit em- ployees, and Respondent refused to accept or process the grievances. By reason of Respondent's refusal to abide by griev- ance and dues-checkoff provisions of its contract with the Union, Respondent violated Section 8(a)(5) and (1) of the Act, as alleged. 4. Paragraphs 23 and 24 of the complaint allege, in substance, that since March 9 Respondent has failed and refused to honor employees' unconditional applications for reinstatement, and has placed unlawful conditions upon the reinstatement of striking employees. On March 6 the Union sent a mailgram to Respondent making unconditional application for reinstatement of employees, with offer to return to work on March 9. A similar request was sent by the Union to Respondent on March 11. Individual employees who reported for work March 9 also made unconditional applications for rein- statement. It is clear, and found, that all employees, in- cluding those who reported to work on March 9, were willing and ready to work, without any condition at- tached to their return. When employees returned to report for work, 13 of them (a total of approximately 60 employees returned) signed the following form prepared and given to them by Respondent: 47 Hi-Way Billboards Inc., supra 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unconditional Offer to Return to Work I hereby make an unconditional offer to return to work at Presto Casting Company. I understand that if there is no position available for me at this time I will be placed on a preferred rehire list and recalled if and when a position becomes available. I also un- derstand that it is my obligation to keep the Compa- ny informed of my current address. NAME PRINT ED SIGNATURE DATE TIME Respondent contends that signing of the form was not a condition of reinstatement, but rather, it was to assist Re- spondent in evaluating its scheduling requirements, and to make direct communication with employees more effi- cient. Strong testified that Herman's son, a supervisor, showed him the form and said, "Sign it and we's be call- ing you as we need you." Later, Strong testified that he heard the supervisor say "he needed to know our ad- dresses and phone number 'cause he was going to be re- calling some of the guys back."' Campbell credibly testified that when he reported for work at approximately 7:15 a.m., on March 9, with other employees, they were greeted by their respective super- visors, and they were shown the form (G.C. Exh. 3): He handed it to me and said "Read this and sign it." I read it and I looked at him and said "What if I refuse to sign this?" At that point James Herman, who was standing just a few feet from Steve Herman, turned around and walked over to me and he said "At that point, consider yourself permanent- ly replaced." I turned around and left. Campbell said he did not sign the form, nor did he see anyone else sign it. Mendivil corroborated Campbell on this point. Maestas testified that Steve Herman (a supervisor) "made us sign the papers (G.C. Exh. 31), and said Re- spondent needed them in order to provide information to be used in recalling employees to work." Maestas said Steve Herman did not say Maestas' job depended upon signing the form. Herman testified that returning employees were asked to sign the form. Herman testified relative to his conver- sation with Cambell. I indicated to him, as I did to others, that we had to reschedule, we had to schedule work loads to be able to take people in and we needed their last know address and telephone number. Herman said he told Strong approximately the same thing he told Campbell. Herman testified that he never stated to any employee that signing the form was a con- dition to return to work. Discussion The strike of February 27 to March 6 was an econom- ic strike, not an unfair labor practice strike, as discussed above. The strikers therefore were entitled to reinstate- ment unless they had been permanently replaced while they were on strike. Many returning strikers were rein- stated, but not all of them were reinstated immediately upon their reporting for work on March 9. 48 It was Re- spondent's burden to show that returning strikers were not immediately reinstated because they had been perma- nently replaced, and that burden was not met. There is no evidence that any striker had been replaced as of the time the strikers unconditionally differed to return to work. Further, Respondent offered no evidence to justify its delay in returning strikers to their jobs, on the basis of business necessity.49 On this record, Respondent failed to meet the requirements of the Act when it did not rein- state the economic strikers immediately upon their un- conditional offer on March 9 to return to work. A reme- dial order therefore will issue as requested by the Gener- al Counsel, regardless of the fact that an 8(a)(3) allega- tion of failure or refusal to reinstate economic strikers is not alleged in the complaint. So far as the General Counsel's Exhibit 31 is con- cerned, Respondent Prgues that only 13 of 60 striking employees signed the form and, further, that return to work was not conditional, expressly or impliedly, upon employees signing the form. Respondent acknowledges in its brief that "the form could have been misconstrued .... " Strong credibly testified that on March 9, "They made us sign papers [note: G.C. Exh. 31] in order to go back to work in the future." Campbell credibly testified James Herman told him that, if Campbell refused to sign the form, Campbell must "consider yourself permanently replaced." Mendivil credibly testified he heard Herman state to Campbell that, if Campbell did not sign the form "that was it." Maestas credibly testified that "they made me sign," and that he returned to work the following day. It is clear, and found, that Respondent at least implied- ly, and probably expressly, told employees their rein- statement was conditional upon their signing the form quoted supra. Whether fewer than all employees were so told is immaterial. Respondent violated Section 8(a)(3) and (1) of the Act in requiring employees to sign the form, as alleged.50 CONCLUSIONS OF LAW 1. Presto Casting Company is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC, is, and at all times material herein has been, a labor orga- nization within the meaning of Section 2(5) of the Act. ' G.C. Exh. 46. 4 The laidlaw Corporation. 171 NLRB 1366 (1968). 'O Harowe Servo Controls. Inc., 250 NLRB 958 (1980). 360 PRESTO CASTING CO. 3. Respondent violated Section 8(aX5) and (1) of the Act by: discontinuing its past practice of giving employ- ees annual Christmas gifts of turkeys, without first noti- fying or bargaining with the Union; by failing and refus- ing to acknowledge and sign a 1-year agreement with the Union, reached on March 6, 1981; and by refusing to honor and implement the provisions of said contract of March 6, 1981, relating to dues checkoffs and employee grievances. 4. Respondent violated Section 8(aX3) and (1) of the Act by failing and refusing to reinstate economic strikers upon their unconditional offer to return to work; and by requiring that said economic strikers sign a company-pre- pared request for reinstatement as a condition of rein- statement. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it is recommended that Respondent be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. It is recommended that Respondent be ordered forth- with to sign the 1-year agreement it reached with the Union on March 6, 1981; to give retroactive effect to all terms and conditions of said agreement; and to make whole all unit employees for any losses they may have incurred,51 with interest thereon to be computed in the manner prescribed in F: W Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962), and, see, gen- erally, Florida Steel Corporation, 231 NLRB 651 (1977). Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 2 The Respondent, Presto Casting Company, Phoenix, Arizona, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Violating Section 8(a)(5) and (1) of the Act by dis- continuing its past practice of giving employees annual *5 The dates and times that all returning strikers were reinstated, were not litigated. Those matters, together with reasons, if any, for delay, are referred to the compliance stage of these proceedings. "2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Christmas gifts of turkeys, without first notifying or bar- gaining with the Union; failing and refusing to acknowl- edge and sign a I-year agreement with the Union reached on March 6, 1981; and refusing to honor and im- plement the provisions of said contract of March 6, 1981, relating to dues checkoffs and employee grievances. (b) Violating Section 8(a)(3) and (1) of the Act by fail- ing and refusing to reinstate economic strikers who were not permanently replaced during their strike, upon their unconditional offer to return to work; and by requiring that said economic strikers sign a company-prepared re- quest for reinstatement as a condition of reinstatement. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Forthwith sign and acknowledge the contract reached with the Union on March 6, 1981, and give said contract retroactive effect to said date of March 6, 1981. (b) Make whole all employees who suffered any losses by reason of failure to sign said contract on March 6, 1981, and by reason of failing and refusing to reinstate economic strikers who were not permanently replaced during their strike, upon their unconditional offer to return to work, with interest, as described above. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Glendale and Phoenix, Arizona, facilities copies of the attached notice marked "Appendix. "s3 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by its au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. s3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 361