Barlett-Collins Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bartlett-Collins Company and American Flint Glass Workers' Union of North America, AFL-CIO, Local No. 716. Case 16-CA-5809 June 13, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On June 30, 1976, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the Charging Party filed its answer and cross-exceptions with a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions 2 of the Administrative Law Judge to the extent consistent herewith3 and to adopt his recommended Order, 4 except as modified below. AMENDED REMEDY The Administrative Law Judge, inter alia, ordered reinstatement of striker Douglas Bell and backpay accruing from the date of his discharge. We disagree with this recommendation, since it does not conform to established Board policy limiting backpay awards to unlawfully discharged strikers.5 The Administra- tive Law Judge found that Bell was on strike at the time of his discharge. He did not find that Bell ever unconditionally applied for reinstatement, nor does the record support such a finding. Moreover, the Administrative Law Judge found, and the record is clear, that the strike had not ended. Accordingly, Bell I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. There are, however, two instances in which the Administrative Law Judge's findings warrant correction: (1) There is reference in the Decision to testimony by employee Mattie Thomas in confirmation of employee Joanne Harper's testimony. The record indicates that no witness named Mattie Thomas testified at the Board hearings, and we so find. The absence of such evidence does not fatally affect the Administrative Law Judge's credibility finding with respect to Harper. (2) Contrary to the Administrative Law Judge, we find that discriminatee Douglas Bell did not deny receipt of a Christmas bonus check which he did in fact receive from the Respondent. In our opinion, the correction further strengthens the Administrative Law Judge's finding with respect to Bell's overall credibility. 2 The Administrative Law Judge failed to discuss the evidence pertaining 230 NLRB No. 18 is entitled to the same compensatory rights and privileges as all other unfair labor practice strikers involved. To this end, we shall modify the Adminis- trative Law Judge's recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Bartlett-Collins Company, Sapulpa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: i. Substitute the following for paragraph 2(a): "(a) Offer to Floreine Aggers immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, in the manner set forth in the section of this Decision entitled 'The Remedy.' " 2. Insert the following as paragraph 2(b), and reletter the subsequent paragraphs accordingly: "(b) Make whole Douglas Bell for any losses he may have suffered by reason of his discharge in the manner set forth in the section of the Board's Decision entitled 'Amended Remedy.' " 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: I dissent from the majority's conclusion that in the circumstances of this case the purposes of the Act will be effectuated by denying Bell, the unlawfully discharged striker, backpay because of his failure to request reinstatement. An unlawfully discharged striker is nevertheless an unlawfully discharged employee. Where a strike is not involved and an to whether Respondent's supervisor, Clyde Adams, threatened employee Aubrey Fleming in violation of Sec. 8(aXl) of the Act. In view of the violations found and the broad cease-and-desist order which we employ, we find it unnecessary to decide whether Respondent also violated Sec. 8 (aX1) by Adams' alleged threat to Fleming. 3 Member Walther concurs in the result reached with respect to the 8(aX5) "surface bargaining" violation found herein for the reasons stated in Chairman Miller's concurrence in The Adrian Daily Telegram, a Division of Thompson Newspapers, Inc., 214 NLRB 1103 (1974). 4 As indicated by par. I(e) of the recommended Order, the Administra- tive Law Judge, who properly found an 8(a)(l) violation in Respondent's furnishing free work gloves to the nonstriking employees in the "hot end" department, inadvertently failed expressly to find that this was unilateral action which violated Sec. 8(aX5). The record warrants such a finding and it is hereby made. I Mid-West Paper Products Co., 223 NLRB 1367 (1976); Valley Oil Co., Inc., 210 NLRB 370 (1974); Sea-Way Distributing, Inc., 143 NLRB 460 (1963). 144 BARTLETT-COLLINS COMPANY employee is unlawfully discharged, the employer is required to make a valid offer of reinstatement to toll backpay. An employer has no less an obligation when the employee is unlawfully discharged for participation in a lawful strike, particularly where, as here, the Employer's unfair labor practices precipi- tated or at least prolonged the strike. Thus, the existence of the strike is no reason to shift the burden to the employee to establish that he is available for employment; the Employer has made it abundantly clear by his unlawful discharge that he will not be taken back. The burden of undoing the wrong must be placed on the wrongdoer lest we permit the Employer to undermine and inhibit the fundamental Section 7 right to engage in concerted activity. Prior to his discharge, Bell had the right like any other employee to choose whether he would report to work during the strike or honor the picket line. However, when Respondent unlawfully discharged Bell, it deprived him of this fundamental right to so choose and, as a result, it becomes difficult, if not impossible to determine whether Bell would have continued to strike and, if so, for how long, had the opportunity to return to work been available to him. This uncertainty is a product of the Respondent's unlawful conduct and any doubts which cannot be resolved factually should by law be resolved against the wrongdoer. The discriminatee in this case should be entitled to backpay from the date of discharge until the date he receives a valid offer of reinstatement, absent affirmative evidence establishing a willful loss of earnings. Whether this unlawfully discharged em- ployee has been unavailable because he was striking or for other reasons is a question to be resolved in a compliance proceeding in the same manner as any other willful loss of earnings incurred by an unlaw- fully discharged employee. The burden, however, is on the Respondent not only to offer reinstatement or demonstrate that an offer has been made, but also to prove willful loss of earnings. I would order the Employer to reinstate the unlawfully discharged employee with backpay from the date of discharge, subject to normal offset considerations. In all other respects, I agree with the conclusions reached by my colleagues. 6 6 1 agree with my colleagues' finding that Respondent violated Sec. 8(a) I) of the Act by its enforcement of an overly broad no-solicitation rule. However, I reach this conclusion independent of any consideration of the distinctions drawn in Essex International. Inc., 211 NLRB 749 (1974), for the reasons expressed in my dissent therein. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question any of our employees about their union activities or membership or their attitude toward American Flint Glass Workers' Union of North America, AFL-CIO, or its Local No. 716. WE WILL NOT make threats, including threats of loss of jobs or loss of pension rights to any of our employees for their support of or their participa- tion in activities on behalf of or their sympathies for the aforesaid Union. WE WILL NOT threaten our employees for soliciting membership on behalf of the said Union provided the said employees may not solicit on behalf of the said Union or on behalf of any other cause on working time. WE WILL NOT offer free work gloves to any employees in any department of our plant unless and until we furnish free work gloves to the employees in the "Hot End" also known as the "Front End" or the "Forming Department." WE WILL NOT discharge any of our employees for engaging in any union or concerted activity on behalf of the aforesaid Union or any other union. WE WILL NOT give our employees the impres- sion that we are spying on their activities with regard to any union activity including union meetings. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist, or be represented by American Flint Glass Workers' Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing or engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity. WE WILL NOT refuse to bargain in good faith with the Union named above. WE WILL offer to Floreine Aggers immediate and full reinstatement to her former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and we WILL make her whole for any loss she may have suffered as a result of our discrimination against her. 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make Douglas Bell whole for any loss he may have suffered as a result of our discrimi- nation against him. WE WILL also reinstate all strikers who notify us that they unconditionally offer to return to work, within 5 days after we receive such unconditional offer, and WE WILL give to such strikers who make such offers and who we fail to reinstate within the said 5 days full compensation for each day beyond 5 days that we fail to reinstate them. Further, in order to reinstate them to their former or equivalent positions, WE WILL, if necessary, discharge any individuals who have replaced the said strikers. WE WILL, upon request, bargain collectively with American Flint Glass Workers' Union of North America, AFL-CIO, or any of its represen- tatives including Local No. 716, as the exclusive bargaining representatives of our employees with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if an understanding is reached with the said American Flint Glass Workers' Union of North America, AFL-CIO, embody such under- standing in a signed agreement. The unit of our employees for whom we will negotiate with the aforesaid Union is as follows: All senior machine operators, press machine operators, press machine helpers, pace ma- chine operators, pace machine helpers, tankmen, tankmen trainees, turnouts, floor boys, production clerks, oilers, repairmen, senior mechanics, mechanics-repairmen, me- chanics-welders, machinists, machinists learners, and other employees regularly employed in the forming department (which is also known as the Front End) at our Sapula, Oklahoma, plant, excluding all other employees including office clerical, other plant production and maintenance employ- ees, moldmakers, professional and technical employees, watchmen, guards, tankmen and other supervisors as defined in the National Labor Relations Act, as amended. In connection with the aforesaid request to bargain and offer to bargain with the aforesaid Union, we have been notified that it has been ordered by the National Labor Relations Board that the certifica- tion year of the American Flint Glass Workers' Union of North America, AFL-CIO, as the bargain- ing representative of the unit described, above, is 'All dates herein are in the year 1974, unless otherwise specifically noted. 2 The Respondent's motion to correct the transcript, opposed in part by extended for a period of I year from the date we commenced to bargain in good faith with the said Union in order to give to our employees represented by the said Union in the above-described unit full and complete opportunity to arrive at a just and honorable collective-bargaining agreement with us. All our employees are free to become or remain or refrain from becoming or remaining members of the American Flint Glass Workers' Union of North America, AFL-CIO, and its Local No. 716, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(aX3) of the National Labor Relations Act, as amended. BARTLETT-COLLINS COMPANY DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard on 19 days between June 16 and October 23, 1975, upon an amended complaint issued on April 30, 1975, which complaint was based upon an original charge filed by American Flint Glass Workers' Union of North America, AFL-CIO, Local No. 716, herein called the Union or Charging Party on October 21, 1974, and a first amended charge filed by the Union on December 6, 1974.1 The amended complaint alleges that Bartlett-Collins Company, herein called the Respondent or the Company, has violated and is violating Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. The Respondent's duly served answer to the amended complaint, while admitting certain complaint allegations, denies the commission of any unfair labor practices. After several extensions of time to file briefs were granted because of the length of the record, all parties filed voluminous briefs. Upon the entire record in the case,2 the briefs of the parties, and upon my observation of each witness, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, maintains its principal place of business at Sapulpa, Oklahoma, where it is engaged in the manufacture and sale of glass tableware and other glass items. During the year immediately preceding the issuance of the complaint herein, a represen- tative period, the Respondent produced, sold, and shipped glass products of a value in excess of $50,000 from its Sapulpa, Oklahoma, facility directly to purchasers located in States other than Oklahoma. counsel for the General Counsel, is granted to the extent set forth in Appendix B annexed hereto. [Appendix B omitted from publication.l 146 BARTLETT-COLLINS COMPANY It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues The complaint alleges, and the General Counsel and Charging Party contend, that the Respondent by bad-faith negotiations, unilateral granting of benefits to employees, refusal to meet at reasonable times, insistence in retaining for itself management rights which would effectively render the Union, the employees' certified representative, nullity, by failing to respond to union proposals, other similar negotiating tactics, and engaging in violative acts away from the bargaining table, all for the purpose of undermin- ing the Union, has refused, in violation of Section 8(a)(5) of the Act, to bargain with the Union. Additionally, the complaint alleges that the Respondent, with the same purpose in view, has engaged in acts of interference, coercion, and restraint of unit employees, and others, by unlawful interrogation of employees' union activities and sympathies, by threats of discharge and loss of employment and retirement and other fringe benefits, by creating the impression of surveillance, and discriminatori- ly enforcing a no-solicitation rule, all in violation of Section 8(a)(1) of the Act. Finally, they allege and contend that the Respondent, in order to discourage union membership and union adher- ence, has discriminatorily discharged three employees because of their activities on behalf of and sympathies for the Union in violation of Section 8(a)(3) and (1) of the Act. Respondent denies all of the allegations set forth above, contending that its bargaining attitude and approach to the problem of reaching a suitable agreement has been undertaken in good faith and in conformity with the Act and Board and court precedent; that its officers, agents, and supervisors have not engaged in any acts violative of employees' Section 7 rights; and that two of the alleged discriminatees were discharged for cause while the third was never discharged at all. B. Background-Respondent's Bargaining History As noted, Respondent manufactures various types of glass tableware and other molded glass items. The operation is of the machine molding type. The plant is a continuous operation plant divided, roughly, into three departments. The first department for purposes of identifi- cation is the moldmaking department in which the employees, known as moldmakers, are highly skilled individuals who have been represented by another local of the same International Union, of which the Charging Union herein is an affiliate. However, there has never been a Bartlett-Collins Company, 140 NLRB 202(1962). 4 The information regarding the decertification and the date thereof is a formal contract between the bargaining representative of the moldmakers and Respondent. There has been only an informal understanding between the moldmakers as a group and the Respondent, with the representative playing little part. Nevertheless, when the employees in the unit represented by the Union, herein, went out on strike, as hereinafter set forth, the moldmakers honored the picket line. The second department is the forming department or "hot end" where the functions of melting the glass and the forming of the glassware is accomplished by use of machinery operated and supervised by the employees for whom the International was certified and for whom the Union herein seeks to obtain a collective-bargaining agreement. The third department is the selector/packer department, whose employees inspect, select, and pack the products made in the forming department by use of machines known as lehrs. The Charging Union was in the process of organizing these employees during the time the events occurred with which this proceeding is involved. To better assess the events and attitudes of the allegedly unlawful conduct of the Respondent, additional history of Respondent's labor relations becomes relevant as back- ground. Between 1941 and 1951, the Respondent and the International maintained a bargaining relationship encom- passing a unit, basically, of all production and mainte- nance employees with the exception of the moldmakers. At the expiration of the contract in 1951, a strike ensued lasting for 10 days. No contract was reached and evidently the International did not represent the production and maintenance employees thereafter, because in 1961, anoth- er union, United Ceramic Glass Workers, was certified as bargaining representative of the production and mainte- nance employees. However, the bargaining following the certification of United Ceramic Glass Workers did not result in a bargaining agreement. The Board found, in that instance, that the Respondent had violated Section 8(a)5) of the Act by failing to satisfy the 8(d) requirement of the Act that the employer meet at reasonable times to bargain.3 Despite the bargaining order in that case, dated December 20, 1962, the United Ceramic Glass Workers Union was unable to obtain a contract and was thereafter decertified sometime in 1963. 4 Thus, between 1963 and June 10, 1964, the date of the certification of the International as representative of the employees here involved, none of the production and maintenance employees of the Respondent, aside from the moldmakers, were represented. The International began an organizational drive among the Respondent's employees in the forming department on February 12, 1974. During the campaign, on March 4, the Respondent granted a wage increase to all employees in the plant. On March 14, the International filed a petition for certification as bargaining representative of the forming department, or "hot end," employees. Thereafter, the International and the Respondent entered into a Stipula- tion for Certification Upon Consent Election for a unit o, the forming department employees despite the fact that, taken from the testimony of Irving Bartlett, vice president and secretary of the Respondent. 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD historically, the International had formerly represented all of the production and maintenance employees. A Board election was thereafter held and the International was successful. It was certified, as noted above, on June 10 for a unit, found herein to be appropriate, described as follows: All senior machine operators, press machine operators, press machine helpers, paste machine operators, paste machine helpers, tankmen, tankmen trainees, turnouts, floor boys, production clerks, oilers, repairmen, senior mechanics, mechanics-repairmen, mechanics-welders, machinist, machinist learners, and other employees regularly employed in the forming department (which is also known as the Front End) at the Respondent's Sapulpa, Oklahoma, plant, excluding all other employ- ees, office clerical employees other plant production and maintenance employees, moldmakers, professional and technical employees, watchmen, guards, head tankmen and other supervisory employees as defined in the Act. C. The Negotiations and Events Pertaining Thereto Following the certification of the International, Local No. 716 the Charging Union herein, was chartered. This, of course, was for the purpose of representing, specifically, Respondent's production employees in the "hot end." With regard to these employees, and others in the plant, on June 13, 1974, the Respondent, by Charley F. Bartlett, addressed a letter to the International's headquarters in Toledo, Ohio, explaining that it had been the policy of the Company in June of each year to consider the need for basic hourly rate adjustments and, when indicated, to implement such increases. The letter went on to state that the Respondent had reviewed the current base rates and that it intended to increase the hourly base rates for the Respondent's employees, excluding the moldmakers and moldmaker apprentices, from 15 to 20 cents per hour on June 30. However, Bartlett went on to say that such increase would not be put in effect with regard to the employees in the "hot end," whom the International represented, without the permission of the International. Additionally, the letter stated that the desired increase would in no way prejudice the Union's right to bargain for further wage adjustments or any other matters which were "within the ambit of obligatory bargaining." In response to this letter, George M. Parker, Internation- al union president, wrote to Bartlett that the International, of course, did not object to any raises given to the employees, but reminded Bartlett that the action of the Respondent in increasing wages at that particular time might be viewed by some as an attempt to undermine the bargaining position of the Union prior to the start of the negotiations. By letter dated June 27, Union President Parker requested a date for initial bargaining, which letter was addressed to Mr. Charley Bartlett. By letter dated July 3, Bartlett informed Parker that the firm of Mueller & Mueller, of Fort Worth, Texas, would be representing the Respondent in the negotiations and suggested that Parker arrange directly with Mueller & Mueller for a date for the first bargaining meeting. In accordance with this sugges- tion, Parker, on July 10, addressed a letter to Mr. Harold Mueller, Respondent's counsel, advising Mueller that Joseph Alvarez would be the principal negotiator for the Union and that Parker would depend upon Alvarez' contacting Mueller for the purpose of agreeing on a date to begin contract negotiations. However, before Parker's letter was written, Joseph Alvarez, the Union's Internation- al representative located in Tulsa, Oklahoma, telephoned Respondent's attorney, Harold Mueller, on July 8. Alvarez explained to Mueller who he was and told him that the committee would be available to work day and night, Saturdays and Sundays, until an agreement was reached. Mueller replied that at that time he could not give Alvarez an answer. However, Mueller stated that he would call Alvarez the following day, July 9. Mueller did call back on July 9 and apologized to Alvarez but explained that he could not give him an exact date for the first meeting. This was because Mueller's schedule was so full. Nevertheless, Mueller called Alvarez back the following day again, on July 10, and a meeting was arranged between the two for July 18, in Tulsa, Oklahoma. In accordance with the agreed-upon date, the parties met on July 18 at the Holiday Inn in Tulsa, Oklahoma. The Respondent was represented by Attorney Harold Mueller, the latter's son, Don Mueller, vice president of the Respondent, Irving Bartlett, Respondent's personnel man- ager, James Roth, Plant Superintendant Dave Benedict, and Respondent's local counsel, Thomas Allen. The Union was represented by Alvarez, Executive Board Member L. O. Jones, and the local union negotiating committee members Dean Reynolds, Ron Sloan, Robert Wiley, and Carol White. It should be noted at this juncture that Alvarez, on behalf of the Union, and Harold Mueller, on behalf of the Respondent, acted as chief negotiators and spokesmen for their respective parties for each of the eight bargaining meetings which took place between July 18 and December I I. It should also be noted that the recitation herein of what occurred at the first seven bargaining sessions, from July 18 through September 26, comes from the testimony of Joseph Alvarez, elicited both on direct and lengthy cross-examina- tion by Respondent's counsel. There is little controversy with regard to what actually occurred at those meetings from this virtually uncontroverted testimony. Additionally, what occurred at the final meeting which took place on December I 11 was agreed upon by the parties by stipulation entered into the record. At the first meeting, which, as noted above, took place on July 18, after the parties introduced themselves, the Union presented, in writing, what the committee and Alvarez considered a complete, proposed collective-bargaining agreement which included, among other things, economic proposals including a wage increase proposal of 40 percent for the first year and a 30-percent increase for each of the 2 succeeding years, the proposal being for a 3-year agree- ment. However, before the commencement of the actual discussion of the subject matter of the proposal, Respon- dent's chief spokesman, Attorney Harold Mueller, stated, in agreement with the Union, that all agreements reached would be considered as tentative until final agreement on all provisions of any collective-bargaining agreement 148 BARTLETI-COLLINS COMPANY entered into were settled. The Union, as noted above, in its initial proposal suggested percentage wage increases, but Mueller suggested at the outset that an effort be made to reach agreement on all noneconomic issues before attempt- ing to resolve the economic matters. Alvarez responded to this proposal by Mueller to the extent that he did not object to discussing initially all of the noneconomic issues but, however, insisted that a complete contract be ultimate- ly reached. The entire first meeting was devoted to the reading by Alvarez of the proposal's 31 articles with questions, comments, and discussion with regard to each article. Left for discussion in the proposed agreement were the items of seniority, pensions, and Christmas bonuses. At the very outset of the discussion of the proposed agreement, the preamble was read in which a management rights proposal consisting of one sentence was included. This proposal merely stated "The Union recognizes the right and responsibility of the Company to manage its plants and to direct its working forces." However, before the preamble was read, Mueller raised the question of the inclusion of Local Union No. 716, which was formed and chartered as heretofore noted to represent the unit employees, as a contracting party inasmuch as the certification by the Board was only for the International. Mueller insisted, however, that the Respondent's legal obligation, according to the certification, was only to bargain with the International which was the certified Union. Alvarez maintained that inasmuch as Local 716 was chartered to administer on behalf of the unit employees, it should be the contracting union. In much the same manner without coming to any agreement on any of the subjects in the 31 articles, all 31 were discussed with the exception of the so-called econom- ic issues. The discussion was open and there is nothing in the record to indicate intransigence on the part of the Respondent's representatives at this meeting. The only real conflict in the testimony with regard to this meeting insofar as the Union's proposal was concerned was that Alvarez testified that the forming department employees, by virtue of their work, which included the handling of hot material, required the use of a number of pairs of gloves which they had to purchase at personal expense and that these should be furnished by the Respondent. Respondent's personnel manager, Roth, testified that the glove and tool furnishing proposal was bypassed during the July 18 meeting inasmuch as the Respondent considered it an economic issue. The questions asked during the meeting of July 18 by Respondent's chief negotiator, Mueller, were, for the most part, pertinent and in the nature of inquiry as to the reasons for the insertion of the various clauses. To repeat the discussion had on each and every one of the clauses would unduly lengthen this Decision, but, needless to say, the discussion was lengthy. The meeting began at 10 a.m. and did not end until approximately 6 p.m. As noted, no agreement was reached with regard to any of the provisions of the union contract proposal. Inasmuch as seniority was not included in the proposal and was left open to discussion, before the meeting was adjourned Mueller asked Alvarez to submit a seniority proposal. Alvarez consented, stating that, together with the negotiating committee, he would attempt to formulate a seniority proposal over the following weekend. When, at the end of the meeting, Alvarez requested of Mueller to meet on either the next day or in the following week, Mueller stated that he could not make any commitment at that time for another meeting because he needed time to study the Union's proposal. When Alvarez asked whether the members of the Union's negotiating committee could be absent from work on the Monday following the meeting to assist in preparing the seniority proposal to be submit- ted, Mueller, on behalf of the Respondent, acknowledged that the committee members would be permitted to use Monday for that purpose. As he had promised, Alvarez and the committee drafted a proposed seniority clause and on July 22 mailed the same to Mueller's office in Fort Worth, Texas. On July 24, Alvarez telephoned Mueller and asked the latter for some indication as to when they could meet again to bargain further. Mueller informed Alvarez at that point he did not know but would call Alvarez back within a day or so to schedule a meeting. On the following day, July 25, Alvarez, not having heard from Mueller with regard to a new meeting date, sent Mueller a letter dated that day reminding Mueller of the conversation of the day before and further reminding Mueller that the International had been certified on June 10 and that I week had elapsed since the first bargaining meeting, yet Alvarez still had no indication from Mueller when the latter would be available to meet for further negotiations. Thereafter, on July 29, still not having heard from Mueller, Alvarez sent a telegram informing Mueller that he was awaiting the response to their telephone conversation July 24 and Alvarez' letter of July 25. By letter dated July 30, 1974, Mueller wrote to Alvarez a lengthy letter reviewing, in considerable part, the history of the relationship between the parties from June 10, the date of the certification of the International, to that date, and stating, among other things, that the Union had not submitted a complete proposal and that the seniority proposal had not been received until July 24, the day Alvarez called for a second meeting. Mueller further stated that Alvarez sent the July 25 letter by surface mail which did not reach Mueller until July 29, the same day that Alvarez sent his telegram to Mueller reminding them of the conversation and the letter. Furthermore, Mueller remind- ed Alvarez that on July 30, 1974, the telegram dated July 29 finally reached Mueller. Mueller then went on to state that it would be only appropriate for the Respondent to have a reasonable opportunity to consider, evaluate, and analyze the Union's proposal in its entirety before undertaking to prepare a counterproposal. Finally, after stating his position, Mueller noted that, in agreement with Alvarez, the Respondent hoped to reach an honorable agreement in due time and that he would communicate with respect to fixing a date for the resumption of meetings as soon as the Respondent was able. On August 4, Alvarez, by night letter telegram, replied to Mueller's July 30 letter stating that the first meeting was delayed from June 25 until July 18; that the Respondent 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had had the Union's proposal since July 18 and received the additional seniority proposal on July 24. Alvarez then stated that, based upon Mueller's experience in such matters, enough time had expired for the Respondent to make a good-faith counterproposal and requested an immediate meeting. Thereafter, on August 13, Mueller called Alvarez on the telephone and suggested that the parties meet on August 15. Alvarez immediately accepted this date. Mueller immediately addressed a letter to Alvarez confirming the meeting, stating the time and place that the parties would meet on August 15, and again reminding Alvarez that it took the Union approximately 48 days in which to prepare and present to the Respondent an incomplete draft of a proposed contract. He again stated that the Union certainly would not desire to accord the Respondent less time in which to prepare its counterproposal. In any event, despite the obvious growing tension, if not animosity, between Mueller and Alvarez, the second meeting took place as scheduled on August 15. The parties were represented, for the most part, by the same individu- als who appeared at the first meeting. The meeting was devoted, for the most part, to the reading and discussion of the Respondent's counterproposal. At the outset of this reading by Mueller, Alvarez noted that the counterpropos- ai recited that the agreement was made between the Respondent and the American Flint Glass Workers' Union of North America, AFL-CIO, the International, which, as noted above, was the certified Union, and that Local 716, the Charging Union herein, was not mentioned. When Alvarez questioned this clause, Mueller answered that the Respondent was reluctant to enter into a collective-bar- gaining agreement with any labor organization other then the one which was certified. Also, the Respondent's counterproposal made no reference whatsoever to the various economic matters contained in the Union's original proposal and Alvarez remarked about that. It would unduly lengthen this Decision to detail the entire counterproposal offered by the Respondent at the August 15 meeting. However, as Mueller began reading the terms of the counterproposal to the parties assembled, a lengthy discussion ensued regarding the Respondent's proposed management rights clause. This clause was extremely lengthy, consisting of three typewritten pages with three separate sections and a number of subsections. In sum, the clause retained for the Respondent unilateral rights, virtually without any recourse by the Union or any employee to any grievance procedure, to establish, change, modify all work standards and schedules; to the exclusive right to select, transfer, reduce the number of employees; to modify or change the content of existing jobs as they were then described; to lay off and assign overtime; to spread available work by reducing workweek; to lay off employees without any consultation whatsoever with the Union, and to distribute any available work in any manner that the Respondent decided to determine. It also retained for Respondent the exclusive right to establish incentives, bonuses, new facilities; to transfer work from one depart- ment to another; to contract out work; to terminate, liquidate, close any or all of the Respondent's operations; to select, promote, or transfer employees to positions outside the bargaining unit; to allocate and assign work to employees; to determine the number and the hours of shifts; and to liquidate and close down all or any part of the Respondent's business without consultation with the Union. It further retained for the Respondent virtually all right to select, promote, transfer employees to managerial positions. Further, it reserved to the Respondent any other matter which was not otherwise listed, to be determined by the Respondent, and established that any rights listed did not exclude other management rights not specifically enumerated. Most of all, these rights which were to be retained by management without interference, restriction, or recourse to the grievance provisions whatsoever. With regard to the foregoing, Alvarez objected to that portion of the management rights clause which retained for the Respondent all of these rights without recourse to the grievance and arbitration provisions of the contract. When Alvarez proposed to delete this language, not only at this particular bargaining session, but at all of the others, Mueller remained adamant and stated that the various provisions of any collective-bargaining agreement detract or restrict management rights and, therefore, the only rights granted the Union were those expressly set forth in the Respondent's counterproposal. A second article discussed was one entitled "Non- Discrimination." Alvarez objected to this article because it required the Union not to discriminate against any employee or applicant for employment because of mem- bership or nonmembership in the Union or because of his union activity or nonunion activity. Presumably, this was because Alvarez was hoping for some sort of union shop or agency shop provision.5 A third item which presented a problem for Alvarez and the union bargaining committee was the article entitled "Union Representation." Alvarez had serious objections to two sections of that article, the first of which stated that there would only be one active steward during each shift at any time. Alvarez' second objection to the article was section 2, thereof, which stated that the Company would confer with the shop steward only after working hours about legitimate union-management matters. This section also restricted union stewards to noninterference with normal conduct of work or with any employees who were on duty. Upon Alvarez' objection, Mueller stated that supervisors would be available after working hours for discussions of these matters with the union steward on duty during the previous shift. There was also some discussion with regard to section 3 of the union representation article wherein the Company would grant time off without pay to employees chosen by the local union to attend conferences and conventions of International or state conferences. Another article which provoked considerable discussion and objection on the part of Alvarez and the Union's committee was the article entitled "Work by Supervisors." This article stated "Supervisors shall perform such work as they deem necessary or proper, or as may be assigned to them." It should be noted that in the Union's original 5 Oklahoma is not a so-called nght to work State. 150 BARTLETT-COLLINS COMPANY proposal there was a provision that supervisors not perform work regularly assigned to unit employees, although such article in the Union's original proposal did not preclude supervisors' assisting by lending helping hands to employ- ees who needed such help in performing their work or in instructing unit employees. The reason for Alvarez' objection to the Company's counterproposal was obvious. This clause could displace bargaining unit employees in favor of supervisory employees, according to Alvarez. Mueller, in refuting Alvarez' arguments against the work by supervisors counterproposal, pointedly stated that the language in the article merely embodied past practice and that the foremen, like all other employees, were hired to perform 8 hours of work and that they would continue doing so. The parties remained adamant in this respect and nothing pertaining thereto was agreed upon. The next article which evoked some discussion was the article entitled "Discharge." Alvarez questioned some of the subsections which, according to the article, would constitute good and sufficient cause for discipline and discharge. One subsection, which stated that an employee could be discharged or disciplined for failure to maintain and possess necessary licenses and operating permits, was agreed to be deleted by Mueller. 6 There was further discussion on other subsections of this article which Alvarez questioned in that there was a broad statement with regard to immoral or indecent conduct. Alvarez felt that it was too broad and wanted more of a definition of what was meant by that. As with the other articles, no final agreement was reached with regard to the subsections. Although Alvarez did question some of the subsections, there seemed to be no great difficulty with this article. The next counterproposal article discussed, which evoked heated discussion, was the "No-Strike, No-Lock- out" article. The third section of this article stated, in substance, that an employee who violated the provisions of the article, that is one who engaged in any strike, slowdown, restriction, or interference with production during the term of the agreement, would be subject to discipline including discharge in the sole discretion of the company and without recourse of the grievance procedure. Alvarez strongly objected to this paragraph of the article and further strongly objected to the last sentence of the article which provided that the Company would not be obligated, under this article, to apply the same disciplinary measures to all individuals violating the article. Alvarez argued that this language could lead to unequal treatment of employees, apparently depending upon the whim of whatever Respondent officer or official was dealing with the matter at the time. Because of Alvarez' objections with regard to the cutting off of grievance filing concerning discipline for a violation of the "No-Strike, No-Lockout" clause, the parties engaged in a lengthy discussion of the following article which was entitled "Grievance Procedure." The proposed grievance procedure was extremely lengthy comprising nine separate sections with the griev- ance procedure itself set forth in section 2, thereof, comprising four steps, the last step being the step into 8 It was obvious that this section might have been taken from some other earlier contract with another union for another company and in drafting was adopted mistakenly into the draft of the proposed counterproposal. arbitration, which in and of itself comprised a main paragraph with five subsections. Alvarez commented at the outset of the discussion of the grievance procedure that it was lengthy and would be extremely difficult for the employees to follow and to comply with the various steps thereof. He objected to the requirement that an employee was required to present the grievance personally to the foreman, in writing, within 3 days of the happening of the event giving rise to the grievance. Alvarez argued he thought that an oral presentation would be sufficient and that the written presentation might be too difficult for an employee to handle alone. Also discussed was step four of the counterproposal's grievance procedure, the introduc- tion of the arbitration procedures which required that only employee aggrieved could file the written request for arbitration and not a union representative. When Alvarez raised objection to this, Mueller replied that the decision to submit a grievance to arbitration should be made by the employee involved. This, of course, would eliminate the decision of the Union to go to arbitration involving the grievance in the event that the employee did not desire to do so even assuming that the event giving rise to the grievance could be, arguably, in violation of the contract between the parties. Finally, in addition to the protests by Alvarez and other members of the union negotiating committee, there was serious objection to the proposed provision that the arbitrator, in making a ruling on a decision of the Respondent to discipline or discharge an employee, could not take into consideration the length of service and prior unblemished employment record of the grieving employee, nor would the arbitrator have the power or the authority to make the Respondent's choice of discipline subject to review or modification by the arbitrator. Presumably, this would mean that if an arbitrator would find that the employee was unduly harshly disciplined, he could not modify the assigned discipline in any manner whatsoever. There were also other objections to the grievance proce- dure proposed by the Respondent. These were with regard to that section of the procedure which required an employee union representative to clock out in order to investigate or assist in the processing of the grievance. The next item of the Respondent's counterproposal discussed was the "Seniority" article. As noted above, on July 22, 1974, the Union sent to counsel Mueller the Union's seniority proposal. This proposal was very simple and was not sufficiently definitive to satisfy the Respon- dent's needs, according to Mueller. Therefore, the seniority clause in the Respondent's counterproposal was much more detailed. Mueller stated that the seniority clause proposed by the Union was unworkable. Thereafter, the parties discussed each section of the counterproposal's seniority article. Alvarez raised some question with regard to the provision that an employee's seniority would be terminated if the employee was laid off for more than 6 months. Mueller responded that, normally, employees who would be laid off for more than a 6-month period seldom, or rarely, returned to employment with the Respondent. However, although Alvarez objected to and asked ques- 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions concerning other portions of this seniority provision, Mueller in each instance responded with a rationale to support the particular provision under discussion. Indica- tive of this was Alvarez' objection to certain language which provided that employees who would be rehired after a break in service would be required to undergo a probationary period of 90 days. Mueller provided the explanation that the basis for this provision was that employees could possibly change working habits over a period of time. Also included in the seniority provision was a further extension of the retention of control over matters in which the Union considered it should participate. Thus, one provision of the seniority counterproposal provided that any permanent transfer from one classification to another, or from one department to another, would be with the approval of the employee with the proviso, however, that if, in the judgment of the Respondent, its operation required such transfer, it could make the same over and above the employees' desire not to be transferred. There was no provision for intervention by the Union in such an event. Again, to further relate the discussion of the various objections and answers by the Respondent to the lengthy seniority provisions would unduly lengthen this Decision. Suffice it to say, there was considerable discussion with regard thereto and very little give and take on the part of the Company. The next article of the Respondent's counterproposal was the "Hours of Work" concerning which there was little or no discussion. Following this, the article entitled "Overtime" evoked little discussion. The next article discussed was "Reporting Pay" in which again there was little discussion except that Alvarez attempted to persuade the Respondent to extend reporting pay from 3 to 4 work hours. The next counterproposal article discussed was "Bulletin Board." This, again, was submitted in reply to the Union's bulletin board proposal which required a bulletin board or bulletin boards of its own. The Respondent's counterpro- posal merely provided that bulletin board space would be provided. It also required that the posting of notices by union representatives would have to be approved in advance by the Respondent and set forth certain other restrictions. Alvarez stated that the Union would desire a separate bulletin board and questioned the necessity for Respondent's approval of what went on the bulletin board. He agreed, however, that matters of a derogatory nature should not appear in such notices. Next discussed was "Health and Safety." Here again the Respondent stated that it would provide protective devices which were then being provided. Among other things, this article stated that suggestions by employees with regard to plant safety would always be welcomed and would receive careful consideration. With that Alvarez suggested the formation of a safety committee which would be composed of both employees and management representatives. The next four articles, "Relief," "Incentive Programs," "Sever- ance Pay," and "Payday" were quickly passed over, the only material discussion being with regard to severance pay. Alvarez stated that he thought the article should provide that the Company would bargain with regard to severance pay in the event the plant should be closed down permanently. The next counterproposal article which resulted in a rejection by the Union in its entirety was the article entitled "Transfer of Company Title" which provided nullification of whatever collective-bargaining agreement the parties entered into in the event of the sale, lease, or transfer of all or any part of the operations or facilities staffed by unit employees. Mueller contended that he deemed such language necessary to permit the Respondent flexibility in the event the Respondent decided to sell the plant. It should be noted that this clause was among those which remained as an unresolved issue through all of the subsequent bargaining sessions and remained such when bargaining ultimately broke off. The next article read was entitled "Classification and Rates of Pay." This article, although by its title seemingly would offer a list of classifications and the rates thereof, merely read "Classification, Rates of Pay as set forth in the attached Rate Schedule." However, no rate schedule was attached inasmuch as this would have been an economic provision which, according to Mueller, Respondent did not desire to discuss until such time as all noneconomic matters were agreed upon. Alvarez asked where the rate schedule referred to therein was. He was given no definitive answer. Also discussed was the article entitled "Physical Exami- nation" which could require both physical and mental fitness and regarding which the Company could require any employee to submit to a physical or psychiatric examination whenever, in its judgment, it deemed such examination to be advisable. The union negotiating committee, through Alvarez, objected to the words "men- tally fit" and desired to know under what circumstances an employee would be required to undergo a psychiatric examination. There seemed to be little discussion with regard to the next article, "Reporting for Work." However, there was discussion with regard to the following article entitled "Employees Returning to Bargaining Unit." This article provided that if employees were selected by the Company for positions outside the bargaining unit, such employee would retain seniority within the bargaining unit, and, if there was a layoff, or if the same employee were to be demoted by the Company, the said employee could return to the bargaining unit and displace any person having less seniority in the particular classification of the returning employee. The discussion which evolved was based upon the Union's objection, not to the promotion of employees, but to the return of a promoted employee back to the bargaining unit which could, in turn, result in a layoff of a bargaining unit employee. It was suggested by Alvarez that a time limit should be set for the accumulation of seniority by an employee who was promoted or transferred out of the bargaining unit. The next article which was read, or at least acknowl- edged, was the so-called waiver clause, commonly known as a zipper clause, which provided that both parties waived any right to bargain collectively on any matter during the term of the collective-bargaining agreement that is not included in the collective-bargaining agreement, even 152 BARTLETT-COLLINS COMPANY though the same may not have been discussed during the negotiations of the bargaining agreement. Alvarez asked that this article and the following article entitled "Full Compensation" be held in abeyance at that time. Accordingly, the next articles, the "Savings Clause" and an "Extra Contract" clause, were evidently satisfactory because no discussion was had thereon. Finally, the parties had a rather lengthy disputation with regard to the next article entitled "Union Discipline" which provided that the Union would not have the authority to fine, discipline, or expel any employee union member for the purpose, either in whole or in part, of requiring such employee to perform his job in a manner other than as directed by the Company. The vigorous protest raised by Alvarez with regard to this clause was based on his stated reason that the fining or disciplining of a member was purely an internal union affair and that by this clause the Respondent was seeking to control affairs which belonged legitimately, internally, to the Union. He went on to say that the Respondent could not legitimately have any interest in such internal union affairs and that, moreover, the Union had no intention of interfering in anyway with Respondent's direction of its work force. In answer, Mueller suggested that the Union could, perhaps, ask its members to slow down. To this Alvarez answered that the Union was an honorable organization and would not permit such activity by its members. This clause remained a sticking point throughout all of the following sessions to the very end of the bargaining and to the bargaining breakoff. The Union insisted that it would not accept such a clause and the Employer insisted that such clause must be included in any collective-bargaining agreement agreed upon. The remaining clauses of the Respondent's counterpro- posal were basically ministerial and no further discussion was had on those clauses at the particular bargaining session here discussed. However, when consideration of the Respondent's counterproposal was completed, Alvarez made the obser- vation that the Respondent's counterproposal made no reference whatsoever to any economic matters contained in the Union's initial contract proposal submitted at the first bargaining meeting. He explicitly informed Mueller that the Company's proposal on economic issues was missing and that the counterproposal was not a complete counter- proposal without any money or any other economic issues. According to Alvarez' testimony, which remained virtually undisputed in this respect, Mueller's reply was rather vague, merely stating that the Respondent's economic proposal would be presented in due time.? 7 Although some of Alvarez' testimony on both direct and cross- examination with regard to the negotiations, not only at the first and second negotiating session, but at others as well, was indicative of some confusion with regard to time and exact statements made by various parties, I find and conclude from my observation of Alvarez, and also from a careful examination of the very lengthy cross-examination conducted by Respon- dent's counsel, that, basically, the testimony given by Alvarez was reliable as to import and never effectively refuted. I make this observation even though, for the most part, Alvarez' testimony was not materially contra- vened by the testimony of any Respondent witness. Moreover, it was Respondent's chief negotiator, Attorney Mueller, who conducted the proceeding before me on behalf of the Respondent and the device which he utilized in cross-examining Alvarez at great length was to ask him questions with regard to each item to which Alvarez testified and then asked him a question beginning with, for example. "Didn't I then say such and such and Additionally, at the end of the meeting Alvarez requested that another bargaining meeting be held the following day. To this, Mueller consented. Alvarez stated that he and the union negotiating committee together would review the Respondent's counterproposal that evening and prepare a response thereto. The parties agreed to meet the next morning. In the meantime, the night of August 15 and the following morning before the third bargaining meeting, Alvarez and the union negotiating committee prepared a handwritten response to the Respondent's counterproposal of August 15. By reason of their working on this response, the August 16 bargaining session did not commence until 1:30p.m. At the meeting of August 16, the Union presented to the Respondent its response to the Respondent's counterpro- posal to the Union's original proposal. To a very significant extent, the Union, in its response, agreed to many of the articles in the Respondent's counterproposal. In the first instance, the Union agreed to delete its Local No. 716 designation from the title of the agreement. Despite the lengthy and restrictive management rights clause submitted by the Respondent in its counterproposal, the Union, in its response, agreed to the entire management rights clause as submitted by the Respondent with one exception. It refused to go along with the part of the first section of the clause which required that the responsibility of manage- ment to conduct its business would be without interference, restrictions, or recourse to the grievance and arbitration provisions of the agreement by the Union or any employee. Alvarez explained that the language which would prevent the Union from taking any matter regarding management rights to the grievance and arbitration procedures was inherently restrictive; that it, in effect, seriously prevented the Union from fully utilizing the grievance and arbitration procedures of the contract. However, Mueller remained adamant with regard to this proposal and the Respondent to the date of the hearing herein had not moved from its position. The Union then agreed to each and every paragraph following that paragraph of the Respondent's counterpro- posal until it reached the second section of the "Non- Discrimination" article of the Respondent's counterpro- pos- al. This article contained a clause which read, "Neither the Company nor the Union or its members will discriminate against any employee or applicant for em- ployment because of his membership or nonmembership in the Union, or because of his union activity or his nonunion activity." The union representatives desired to delete from this the words "or his nonunion activity" from the last such." In virtually every instance, Alvarez either maintained what he stated was said at the various bargaining sessions between himself and Mueller or, in the event that the question asked upon cross-examination reminded him that some different discussion occurred, Alvarez readily and unhesitatingly admitted to such. For these reasons. I accept Alvarez' versions of the various bargaining sessions which, as noted above, remained for the most part unrefuted. Additionally, much of the material recited heretofore with regard to the first two bargaining meetings and which will be recited with regard to later matters, was developed from Alvarez' testimony as much on cross- examination as on direct. I conclude therefore that, although Alvarez' memory required some jogging inasmuch as he did not keep full notes of most of the bargaining as it took place, he nevertheless endeavored at all times to be forthright and truthful and to fully state all that he was able to remember. 153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above quoted line. This, presumably, because the Union felt that it was again interference with the internal affairs of the Union and the manner in which it could determine discipline. It should be noted that this clause remained an unagreed-upon clause as of the day of the hearing herein and the Respondent has refused to move from its position with regard thereto. With respect to the Respondent's counterproposal article entitled "Union Representation," the Union's representa- tives agreed to accept the entire proposal with the exception of the words requiring the shop steward to confer with the Company regarding legitimate union-management matters only after working hours. The union representa- tives desired to delete the words "after his working hours." They also asked to lengthen the time that a representative of the local union could attend a local, state, or national convention or conference of the Union. The Respondent's "Union Representation" clause provided for such time not to exceed I week. The Union requested 2 weeks. Without acceding to the Union's request in any manner, Mueller merely inquired as to the approximate number of employ- ee-members who would attend union conventions at any particular time. He was told that not more than one or two individuals would attend and that these conclaves did not take place more than once every 2 years. Next the Union consented to the Respondent's counter- proposal article entitled "Visitation Privileges," but reject- ed completely the article entitled "Work by Supervisors." As noted, this article provided that supervisors would perform such work as they deem necessary or proper or as might be assigned to them. Instead of accepting this clause, the Union's representatives thus proposed a clause which provided that the supervisors could work in an emergency or when employees needed assistance. The Union objected to the supervisors freely working and performing unit work which could affect the employment status of the Union's members in the unit. The next portion of the Respondent's counterproposal that was discussed pursuant to the Union's response was the Respondent's "Discharge" proposal which, as noted above, mentioned as a ground for discharge violation of company rules and regulations. Alvarez requested that this be held in abeyance until the Respondent complied with Alvarez' request for a written copy of the Respondent's rules and regulations. The committee members indicated they were unaware of such. Mueller replied that Respon- dent did maintain rules; that Respondent, in addition to having an old employee booklet, adhered to certain unpublished disciplinary rules. It should be noted that the record contains no evidence that the union representatives ever were supplied a copy of any rules or regulations. The parties next discussed the "No-Strike, No-Lockout" article of the Respondent's counterproposal. The Union in its response, or second proposal, requested deletion of the last paragraph of this article of the Respondent's counter- proposal which provided, in effect, that any individual violating the article would be subject to discipline, including discharge, in the sole discretion of the Respon- dent and without recourse to the grievance procedure. Alvarez, on behalf of the union committee, contended that the language of this paragraph would, as did other paragraphs of the Respondent's counterproposal, prevent access to the contractual grievance-arbitration procedure. However, the Respondent's representative again refused to move from his position on this matter and to the date of the hearing Respondent has refused to agree in any respect to amend its "No-Strike, No-Lockout" proposal. The next item of the Union's response to the Respon- dent's counterproposal was offered in answer to the lengthy article of the Respondent's counterproposal enti- tled "Grievance Procedure." The Union, in writing, objected to what it had objected to verbally; namely, that the grievance should not have to be written and signed solely by an employee. This objection was later withdrawn by the Union on August 23 because of an agreement by the Respondent for a change in language in the first step of the grievance procedure. Also, the Union's response to the grievance procedure proposed by the Respondent was directed at step four of the grievance procedure which was the taking of the grievance to arbitration. The Union requested that this be held in abeyance by reason of the fact that the Union desired to have inserted words which would permit local union officers and International union representatives to process unresolved grievances, as well as the individual grievant. As noted above, the Respondent's counterproposal was first discussed on the day before, and the Union objected to the fact that only the grievant could request arbitration. The Union, in its response on August 16, rejected the Company's entire counterproposal article entitled "Seniori- ty." There were a number of reasons given by Alvarez as the basis for this rejection. Principally the objections were addressed to the 90-day probationary period, whereas the Union, in its original proposal, desired a 30-day probation- ary period. This was in connection with its proposal for a 30-day union-security clause. However, the Respondent's counterproposal did not include any provision for union security. Other reasons for rejecting the Respondent's seniority counterproposal were with regard to the section dealing with an employees' department transfer and the section providing that seniority would terminate after a layoff of 6 months or more. Alvarez expressed his opinion both on August 15 and 16 that 6 months was too short a period and suggested that seniority should terminate only after a layoff of sometime between 12 and 36 months. Mueller, on behalf of the Respondent rejected this compromise. Also, with regard to further sections of the seniority counterproposal, the Union, through Alvarez, suggested that nonoccupational illness leave continue with seniority undisturbed for a period of somewhere between 24 and 36 months as against the Respondent's proposed period of 12 months. There were also additional reasons given by Alvarez for the rejection of the Respondent's seniority counterproposal. The Union's response to the next article of the Respon- dent's counterproposal entitled "Hours of Work" was agreement with that entire clause, and no objection was raised to that section of the counterproposal. Although, with respect to the next article entitled "Overtime," the Union agreed to all five sections thereof, and also proposed to resubmit article 10 of the Union's original proposal concerning workweek and premium pay. The reason for 154 BARTLETr-COLLINS COMPANY this, according to Alvarez, was that the Union desired to incorporate, in addition to what it had agreed to in the Respondent's "Overtime" proposal, a provision to the effect that overtime be paid for work in excess of 8 hours per day or during any continuous 24-hour period, and for time worked on Saturdays and Sundays and, additionally, for work performed during the seventh consecutive day of any workweek as set forth in the Union's original proposal. However, during the discussion of the Respondent's "Overtime" proposal on August 16, the Union agreed to delete from its initial proposal designated "Workweek and Premium Pay" the sections which dealt with time-and-a- half pay for all time worked in excess of 8 hours in a single workday, or in excess of 40 hours in a single workweek. The Union's response to the Respondent's counterpro- posal clause entitled "Reporting Pay" was a complete rejection and resubmission of the Union's proposal with regard to reporting and call-in pay. Next, the Union accepted the "Bulletin Board" article of the Respondent's counterproposal. The next item discussed was the Respondent's counter- proposal article entitled "Health and Safety." The Union was in agreement with this article provided the words "or may be required by law or company policy" at the end of the second sentence were deleted. There was some discussion of the Company's language. Finally, a compro- mise was reached upon suggestion of language by both parties, principally by the Respondent's representative. However, from the record, it is unclear whether this agreement was reached on that date or a later date. In any event, agreement was ultimately reached on this proposal as modified. The Union's response noted acceptance of the next four articles of the Respondent's counterproposal entitled "Relief," "Incentive Programs," "Severance Pay," and "Payday." However, the Union rejected the Company's proposal entitled "Transfer of Company Title." This proposal required that, in the event of sale, lease, or transfer of all or any part of the operation facilities staffed by unit employees, the agreement would forthwith become null and void. Alvarez' reason for rejecting this article was that he thought that the collective-bargaining agreement should be honored by any possible successor employer. 8 The next article of the Respondent's counterproposal, "Classification and Rates of Pay," referred to a rate schedule attached. However, no rate schedule was at- tached. The whole matter was placed in abeyance until the Respondent submitted to the Union a rate schedule. It should be noted in connection therewith that Mueller on behalf of the Respondent again stated that he desired to dispose of all noneconomic matters before economic matters would be discussed and, accordingly, a rate schedule would be submitted in due time. To the next counterproposal article entitled "Physical Examination," the Union's response was rejection of the entire proposal. Alvarez testified that the committee "just didn't like the reading and the language of the article." I At first blush, in view of the Supreme Court's decision in N. L.R.B v. Burns International Security Services. Inc.. et al. 406 U.S. 272 (1972), which held that a successor employer is not bound by the collective-bargaining agreement between its predecessor and a labor organization, Alvarez' Alvarez and the committee, however, did not at that meeting suggest any alternative language. Nevertheless, it is apparent that the rejection was caused by the use of the words "physically and mentally fit for work and free of infectious or contagious diseases." At the meeting of August 16, the Union, in its response to the Respondent's counterproposal section entitled "Reporting Pay," did accept the entire proposal on that subject and, accordingly, the parties were in agreement on that matter. The next topic of discussion was the article in the Respondent's counterproposal entitled "Employees Re- turning to Bargaining Unit." The Union's response was that it was in agreement provided a limitation was set upon the time during which seniority could be retained by employees who left the bargaining unit. The Union desired to avoid a situation where employees holding management positions could return after a long period to the unit and bump employees who had remained in the bargaining unit. The Union proposed that the article contain the words "for a maximum of 2 years." Mueller countered that the article was for the benefit of employees because with the security of the knowledge that they could retain their seniority, they would not hesitate to take more advanced work and perhaps work into management level positions. He then asked Alvarez whether the Union wanted to discourage advancement. Alvarez answered "No," that the Union wanted to encourage advancement. However, the Union was adamant in desiring a cutoff date for accumulation of seniority for employees who moved out of the bargaining unit. In any event, however, at the next meeting, August 23, the matter was agreed upon as hereinafter set forth. The Union's response to the counterproposal of the Respondent entitled "New Classifications" indicated agreement and there was no discussion on that matter. Although there was no rejection of the next article, "Complete Agreement," the Union in its response to the Employer's counterproposal stated that clause was to be held in abeyance. Alvarez explained that this clause would be held in abeyance until all of the main matters and all the economic features were resolved, in other words, until there was actually a complete agreement. At that time the union representatives would decide on whether to accept this proposed clause. The same action was taken with regard to the Union's position on that clause of the Respondent's counterpropos- al entitled "Waiver." This clause, commonly referred to in labor relations parlance as a zipper Clause in which the parties agree that there shall be no further agreement or request for bargaining on any matters not covered by the original agreement during the life of the agreement. This waiver would be in effect even if such matters were not brought up and disposed of during negotiations for the agreement. Alvarez stated to the Respondent's representa- objection would seem to have little merit. However, in Burns, there was a complete sale whereas in the instant proceeding the requirement in the Respondent's counterproposal required nullification of the agreement if only a partial sale of the Respondent's business involved unit employees. 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive that the Union would not agree to this clause at that time until an entire agreement was reached.9 The next article of the counterproposal answered by the Union was entitled "Full Compensation," which the Union rejected until such time as the Respondent submitted its economic proposals. However, the next article entitled "Savings Clause," was agreed to by the Union in its response. But, the clause entitled "Extra Contracts" was rejected by the Union for the time being because, according to Alvarez, "I couldn't agree to this until I knew what the money package was." Likewise rejected was the "Extra Contracts" article because, according to Alvarez, the Union just did not like the language in the clause. The article entitled "Union Discipline" was rejected by the Union and it was explained that this was for the same reason advanced by the Union on the previous day; namely, that it restricted the Union with regard to its own internal affairs. With regard toward the article entitled "General," the Union acknowledged in its response that it was in agreement except for some suggested language change in the last section. The Union's response to the final paragraph of the Respondent's counterproposal was to hold the matter in abeyance until such time as the parties reached full agreement. However, after this last clause of the Respon- dent's counterproposal was discussed on August 16, the Union's response was that it resubmitted its entire original proposal as submitted to the Company on July 18. According to Alvarez, whom I credit, the reason for the resubmission of the entire union proposal was that the Respondent's counterproposal, which was given to the Union on August 15, did not contain responses to all of the Union's proposal and, moreover, contained no economic proposals whatsoever. In fact, Alvarez explained to Mueller that, despite the Union's efforts, they found missing from the Respondent's counterproposal any answer to any of the economic items. Alvarez told Mueller that he hoped the Respondent appreciated the concessions the Union had made to many of the items in the Respondent's counterproposal, and that the committee was trying to reach an agreement. Alvarez told Mueller he wished that Mueller would note the movement that the Union had made and what the committee had done in order to reach an agreement. When Alvarez then asked Mueller if the latter would discuss economic items, Mueller's response was "that is money issues, that's economic." Evidently, Mueller meant that the Respondent again would not discuss economic matters until final disposition of all other contractual proposals. The foregoing summarily relates what occurred at the meeting of August 16. At the conclusion thereof, Alvarez proposed that the parties meet again the next day, August 17. However, Mueller explained that this could not be done; that he could not meet on the following day and the parties finally agreed to meet at 9:30 a.m. on August 23. The record is somewhat confusing with regard to when Mueller on August 16 asked for the Union to submit what 9 Upon persistent cross-examination by counsel for the Respondent, Alvarez refused to admit that at the August 16 meeting he and the union negotiating committee agreed, in substance, to the wording of the clause. I credit Alvarez. it considered language for a proper seniority clause or changes in the Respondent's proposal for such clause. However, at some time either during the discussion of the seniority clause or at the conclusion of the August 16 meeting, the request by Mueller was made. On August 19 Alvarez enclosed and mailed to Mueller the proposed seniority language with which the Union would agree. Also enclosed was the Union's proposed changes in the grievance procedure article set forth in the Respondent's counterproposal. °0 The parties met as scheduled at 9:30 a.m. on August 23. Present, for the most part, for each of the parties were the same individuals who had represented the parties at the earlier meetings, with Alvarez and Mueller as the chief spokesmen for their respective constituents. The session opened with a rather lengthy discussion of the grievance procedure in accordance with the modifications submitted by Alvarez by letter to Mueller on August 19. Alvarez commented that representatives of the International union should review grievances before their submission to arbitration. After a period of approximately 2 hours, it was agreed that the grievance procedure would be amended to provide that unresolved written grievances would be considered by the International union president, or his designee, and by the Respondent's chief executive officer, or its designee, before submission to arbitration. Further agreement was reached to include language in the griev- ance procedure that unresolved grievances could be submitted to arbitration by either the Union or the grievant by written notice of desire therefore. Further amendment was agreed upon to permit the initial grievance to be submitted orally rather than in writing by the grieving employee to his immediate supervisor before the same was required to be reduced to writing. After much discussion the parties finally reached agreement on the entire grievance procedure at approximately 3 p.m. of that day. Also discussed after agreement was reached on the language of the grievance procedure was "Seniority." Alvarez held that the 90-day probationary period con- tained in Respondent's seniority proposal was of too long duration and suggested a probationary period limited to between 30 and 60 days. Mueller rejected this proposal out of hand. There was also some discussion with regard to seniority in relation to the language contained in the Respondent's counterproposal stating that any permanent transfer from one classification to another or from one department to another should be with the approval of the employee, etc. Alvarez contended that the language "from one department to another" was not applicable inasmuch as the unit covered by this proposed agreement included employees in only a single department. No agreement was reached on the proposed deletion suggested by Alvarez of the words "from one department to another." Nor was agreement reached on the section of the Union's initial proposal relating to union membership, Mueller arguing that the Respondent had the right to select its employees regardless of whether the Union approved of applicants for employment. However, agreement was 10 It is unnecessary at this point to detail the particular changes proposed. 156 BARTLETT-COLLINS COMPANY reached, after some discussion, on the "Health And Safety" article of the Respondent's counterproposal of August 15. The end of the second sentence contained in paragraph I of that proposal was finally compromised to read "or as the Company may be required by law to provide." This was suggested by Mueller and accepted by the Union. Further discussed was the article designated "Work by Supervisors." Alvarez repeated his argument that supervisory personnel should not be permitted to perform work regularly performed by unit employees. There was no movement on this particular clause. Also discussed was the Respondent's "Discharge" article, Alvarez again objecting that members of the union committee were not aware of any written rules or regulations maintained by the Respondent or aware of the existence of any rules or regulations. Alvarez then requested an explanation of the rules and regulations or in lieu thereof a list of such regulations. Mueller's reply that if the Union had any objections to a particular rule maintained by the Respondent a grievance could be filed with respect thereto. However, it should be noted that the Respondent's proposal, from which the Respondent did not move at this time, at least, stated that the rules and regulations and any objections thereto would not be grievable. Nevertheless, despite all of the foregoing, the Union finally conceded on that day and accepted the Respondent's "Discharge" article in its entirety as con- tained in the Respondent's counterproposal. Next discussed together was the clause in the Union's original proposal designated "Successors, Transferees and Assigns" and the clause the "Transfer of Company Title" proposed in the Respondent's counterproposal. Alvarez insisted that any successor be bound by the union contract. This was again rejected by the Respondent's representa- tives and, accordingly, Alvarez rejected the "Transfer of Title" clause of the Respondent's counterproposal. How- ever, with regard to the "Physical Examination" article proposed by the Respondent, although there was initial objection by the Union to the use of the words "physically and mentally fit," and also to the requirement that employees may be subject to physical and psychiatric examinations, the Union on August 23 finally accepted that clause and agreement was reached thereon. The parties also had some success which culminated in the Union's acceptance of the next article discussed, Respondent's proposed article on "Employees Returning to Bargaining Unit." Alvarez reiterated his original objection to this article contending that a time limitation should be placed upon an employee's ability to return to the bargaining unit after leaving the same and accumulat- ing seniority. Mueller suggested that the article be modified to permit "actively employed individuals" to return to the bargaining unit if they desired to do so. With this modification, the Union accepted the article entitled "Employees Returning to Bargaining Unit." Additional discussion was had which related to the Respondent's "Union Representation" article. Alvarez again contended that the provision for leave of absence to attend union conclaves be extended from I to 2 weeks. Furthermore, he again objected to the requirement of the section of that article which provided that shop stewards could confer with management representatives only after regular working hours. Alvarez argued that this would work a hardship upon the stewards. Although, in testifying, Alvarez could not place the date when Mueller suggested an acceptable amendment to this article, Mueller did propose an amendment to the section permitting leave of absence to attend meetings not to exceed 3 weeks. The Union thereupon accepted the leave of absence section. However, as far as can be ascertained from the record, the Union did not accede to the portion of the article which required union stewards to meet with Respondent's representatives only after working hours. No further agreements of any part of the Union's proposal or the Respondent's counterproposal were reached on that day. Toward the conclusion of this August 23 meeting, Alvarez again requested discussion of econom- ic issues. This was brushed aside by Mueller's statement to the effect that he desired to discuss other matters. Alvarez then predicted that a strike would possibly ensue if the negotiations between the parties did not result in more progress and if the Respondent continued to fail to submit a complete contract proposal including economic provi- sions. He explained to those present that, as heretofore set forth, the Union had made numerous concessions and, in particular, had consented to the very lengthy and difficult to follow grievance procedure proposed by the Respon- dent. The Respondent's vice president and secretary, Irving Bartlett, then inquired of Alvarez if the statement with regard to the strike constituted a threat. Bartlett thereupon affirmed the Respondent's confidence in the representation it was receiving from its counsel, Mueller. Bartlett stated he felt Mueller had performed in a satisfactory manner and Respondent would continue to rely on Mueller's advice. Thereupon, after Mueller agreed to follow up Alvarez' request for the next meeting by telephone to Alvarez on the following Monday, the meeting adjourned at approximate- ly 6 p.m. On August 26, Mueller, by telephone, arranged with Alvarez to meet again on September 5 and 6. On that same day, Alvarez held two union membership meetings, one at I p.m., and the other at 7 p.m. During these meetings Alvarez, together with International Representative Jun- kins, reported to the employees the progress, or lack of progress, that had been made in the bargaining to that date. In response to a question, Alvarez told the employees that the Respondent "was dragging its feet" and, in his opinion, violating the law. Someone from the group of employees at one of the meetings indicated that they should strike on Labor Day. Alvarez requested the members to restrain their emotions with regard to the strike. The members thereupon by secret ballot voted to begin a strike against the Respondent on September 15 in the event that a satisfactory agreement was not reached in the meetings scheduled for September 5 and 6. On the following day, August 27, Alvarez and Junkins visited Irving Bartlett and Charley Bartlett at the Respon- dent's plant office. Alvarez informed the two Bartletts that the employees in the unit had voted and were prepared to strike on September 15 if satisfactory progress was not made in negotiations before that date. Alvarez also informed the Bartletts that it was only because he had 157 DECISIONS OF NATIONAL LABOR RELATIONS BOARD persuaded the employees to postpone strike action until September 15 that the strike was not going to occur before that date, and that the employees, through him, requested a complete contract proposal from the Respondent, includ- ing economic issues. The short meeting ended with the Bartletts thanking Alvarez for this information. Bargaining session number 5 was held, as scheduled, on September 5. The parties were represented, for the most part, by the same individuals with the exception, however, that also present was Union Executive Board Member Jones. The meeting began at approximately 2 p.m. on that day. This meeting, initially, was devoted to a discussion of the Union's original proposal, which the Union resubmit- ted, especially with regard to economic matters. According to Alvarez, each time an economic matter, such as reporting and call-in pay, funeral leave, gloves and tools, vacations and holiday pay, insurance for active employees, was submitted, the answer by Mueller was almost uniform- ly "that is economics" or "that is a money item" and the matter was passed. Mueller indicated that he did not wish to discuss these items inasmuch as they were economic items, apparently maintaining the position which Respon- dent had maintained during the prior four negotiation meetings that all noneconomic issues be resolved before economic issues were to be discussed and disposed of." Most important of all, the Union resubmitted its article captioned "Wages." Mueller's sole answer to that was "economic." Also in this category was the Union's original "Cost of Living" article to which again the answer was "economic." On noneconomic matters, or matters not classified by Mueller as economic, there was a considerable discussion with regard to the Respondent's counterproposal clause entitled "Nondiscrimination." Alvarez suggested that the words "or because of his union activity or his nonunion activity" be deleted or, in the alternative, that a period be placed after the word union activity, and the rest of the line deleted. Alvarez stated that if this was done the Union would accept the Respondent's entire management rights proposal provided the words "alone, without interference, restrictions or recourse to the grievance arbitration provi- sion hereof by the Union or any employee" were deleted from the first section of the management rights article. Alvarez once more stated the Union's objection to the Respondent's proposed "No-Strike, No-Lockout" article because the language did not provide equal application of disciplinary measures and was limited with regard to arbitration. Also, once again, as he had before, Alvarez also stated that the Union would agree to the Respondent's "Reporting Pay" article if it were amended to provide 4 rather than 3 hours' pay to employees reporting for regularly scheduled work. However, evidently none of these suggestions were accepted by the Respondent and no further movement was made with regard to those articles. Thereafter, on behalf of the Union, Alvarez accepted the Respondent's article designated "Classification and Rates of Pay" despite the lack of an attached rate schedule and further informed Respondent's representatives that the articles designated "Complete Agreement," "Waiver," and " The item "Severance Pay," was disposed of at the August 16 meeting, although this would seem to have been an economic matter. It was evidently "Full Compensation" would be acceptable to the Union upon the provision that agreement was finally reached concerning all other portions of the bargaining agreement. Also accepted on September 5 was the Respondent's counterproposal article entitled "Extra Contracts." How- ever, Alvarez once again rejected Respondent's "Union Discipline" article. The reason, as hereinbefore stated, was that Alvarez and the union committee felt that this was interference with internal union affairs. At the September 5 meeting, the Union also withdrew a number of the clauses of its initial proposal. These, for the most part, were articles which were similar to or had been substituted by like articles worded somewhat differently in the Respondent's counterproposal which the Union had accepted. The Union also resubmitted on that day that portion of its "Workweek" and "Premium Pay" articles which dealt with time and a half for time worked in excess of 8 hours in a single workday, or 8 hours in excess of a continuous 24-hour period or in excess of 40 hours in a single workweek or work on Saturdays or Sundays, time worked on the seventh consecutive day to be paid at the rate of double time, and emergency time to be paid at time- and-one-half rate. However, section III of that article was agreed upon after it was amended with a provision that employees injured while working would receive a full day's pay for the day of the injury. The Union resubmitted a number of other provisions of its original contract proposal including "Reporting and Call-in Pay," "Union Labor," "Military Leave," and "Gloves and Tools." Thus, the parties stood in relation to each other at the close of the bargaining meeting of September 5. Before it closed, however, Alvarez reiterated, as he had at the end of the prior meeting, that the Union had again made numerous concessions with regard to its bargaining proposals and had accepted many of the Respondent's proposals even though they were onerous to the Union. He especially pointed out the acceptance of the Respondent's proposed grievance procedure which he and the Union's committee considered overly long and complicated and difficult for the union membership to follow and under- stand. Alvarez ended by asking Mueller to rply or make proposals or counterproposals regarding the unresolved economic portions of the Union's initial proposal given to the Respondent at the very first bargaining session. Mueller, on behalf of the Respondent, again refused a definite response, merely stating that economic proposals would be forthcoming. As scheduled, the sixth bargaining session was held the next morning, September 6, at approximately 9 a.m., the parties being represented by the same individuals present at the previous day's meeting. When the meeting began, the Respondent submitted to the union representatives a copy of its pension plan in accordance with an earlier request by the Union. This having been done, the parties then began to discuss seniority. Again, Alvarez stated that the Union requested a probationary period of 30 days, evidently referring to its original proposal for a 30-day union-security provision, rather than the 90 day contained in the seniority section of the Respondent's counterproposal. Also Alvarez not discussed on September 5 inasmuch as agreement had been reached thereon at the earlier date. 158 BARTLETT-COLLINS COMPANY told the parties that he did not believe employees who quit or were discharged should be required to undergo an additional 90-day probationary period in the event of rehire. Mueller countered to the effect that a 90-day probationary period, as proposed by Respondent, was reasonable. Again, Alvarez also contended that Respon- dent's proposal with regard to transfers between depart- ments was not necessary inasmuch as the Union represent- ed only forming department employees. In addition, at the September 6 meeting the Union conceded to the Respondent's proposal that seniority of a laid-off employee would terminate 12 months after the layoff. Also agreement was reached on that portion of the Respondent's seniority proposal which related to nonoccu- pational illness leave, after the words "unless the Company agrees to extend such period" was added to the seniority proposal contained in the Respondent's counterproposal. Further agreement was reached with regard to seniority in that the Union accepted Respondent's seniority article after an amendment providing that seniority would terminate in the event of an unauthorized absence from work "without a reason satisfactory to the Company." The Union also accepted an additional section of Respondent's seniority proposal after an amendment assented to by the Respondent to provide recall notices after layoff to be sent by registered mail. Although the Union made offers with regard to the temporary layoff provisions of the Respon- dent's seniority proposal that 7 days be the limit for temporary layoffs, no agreement was reached on that particular portion of the seniority proposal submitted by Respondent. Following this rather lengthy discussion on seniority, the parties again discussed and compared the Union's original proposal with the Respondent's counterproposal and reviewed them article by article in order to determine where there existed areas of agreement and which areas remained not in agreement. In doing this, Alvarez again submitted for consideration the economic matters con- tained in the Union's initial proposal and again Mueller simply answered that these issues were "economic" or "money" items and, as a result, no discussion ensued with respect to these so-called economic or money matters. Again, as he had at the meeting the day before and on the August 23 meeting, Alvarez made the observation that the Union had made numerous concessions toward reaching an agreement in order to receive from the Respondent a proposal concerning economic matters. But the Respondent's representatives made no effort to present an economic proposal or meet the Union's economic proposals at this time. There then ensued an extensive discussion regarding the problem of work by supervisors. Mueller asked the union negotiating committee members whether supervisors were performing bargaining unit work at that time and the answer from several of the committee members was in the affirmative. One member claimed that employees were losing pay because of this practice, particularly during weekends when foremen were utilized to set up the machines. Mueller then proposed to amend the Respon- dent's "Work by Supervisors" article by inserting words to the effect that supervisors would continue to perform work they had performed in the past. This was immediately rejected by the Union because, in its opinion, the revision represented no significant change in the Respondent's article as originally proposed. In testifying, Alvarez stated that at no time during the course of the negotiations did any representative of the Respondent explain to what extent supervisors had performed bargaining unit work in the past. The foregoing constitutes the only progress made up to and including the end of the sixth bargaining session on September 6. Alvarez then proposed to schedule a bargaining session for the following day and repeated what he had stated at the outset of the first bargaining session; namely, that the Union and its representatives were agreeable to work nights, days, Sundays, and all times, if necessary, in order to reach agreement on a complete contract. However, this was not agreeable to the Respon- dent's chief negotiator, Mueller, and no agreement was reached concerning the date of an additional bargaining session. The parties not having been able to reach agreement, Mueller suggested that a Federal mediator be called. Alvarez accepted this suggestion. However, he reiterated that again at none of the bargaining sessions had the Respondent been willing to discuss economic issues. Thereupon, at 6 p.m. on September 6 the sixth bargaining session was adjourned. In accordance with Mueller's suggestion, Alvarez made contact with Federal Mediator Arnold, apprising the latter of the status of the negotiations. Alvarez also informed Arnold that a strike vote had been taken to begin a strike against the Respondent on September 15. Thereafter, Mediator Arnold arranged for a meeting to be held on September 26. However, several days before the meeting was scheduled, on September II Alvarez held meetings with separate shifts of employees in the unit involved and reported to the members present at each meeting the status of the negotiations. In doing so, he indicated the areas of agreement and disagreement. Again, as at the previous employee meeting held before Labor Day, the union members by secret ballot voted to begin striking the Respondent on September 15 even though the meeting with Mediator Arnold and Respondent was scheduled for September 26. The Respondent was aware of the strike vote. As noted above, Alvarez visited the Bartletts a short time before this and informed them of the possibility of a strike. By letter to its employees dated September 12, Respondent informed the employees of the possibility of a strike and further informed them that Respondent could lawfully permanent- ly replace employees participating in such possible strike. Additionally, Respondent announced to the employees in the letter that it would continue to operate despite any strike. It further advised the employees that earlier strikes at the Respondent's plant did not pay off for the employees and that any strike contemplated by them at this time would have like result. As voted upon at the meeting of September 11, the members of the Union began to strike the Respondent on September 15 and established picket lines at the Respon- dent's premises at that time. As earlier noted in this 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision, the Union also represents the moldmakers in a separate unit. The moldmakers honored the picket line. As scheduled by Mediator Arnold, a bargaining meeting was held on September 26. At the outset of the meeting, Mediator Arnold requested the parties to set forth those issues which remained unresolved. At that point, Alvarez announced that the Union was involved in a campaign to organize all of the Respondent's production and mainte- nance employees, which campaign began on August 23.12 Pursuant to Mediator Arnold's request, Attorney Muel- ler speaking for the Respondent, listed as unresolved from the Respondent's counterproposal, the initial section of the "Management Rights" article; the second section the "Nondiscrimination" clause; the entire article entitled "Work by Supervisors"; the last paragraph of the "No- Strike, No-Lockout" article; sections II and VIII of the "Seniority" clause; all of the "Reporting Pay," "Transfer of Company Title," and "Union Discipline." Also, Mueller listed "Union Membership and Checkoff," "Union Rights," "Restrictions of work by Supervisors," "Hiring," "Releasing," "Quitting, and Discharging," "Workweek and Premium Pay," "Reporting and Call in Pay," "Funeral Leave," "Shift differential," "Jury Duty," "Union Labor," "Military Leave," "Gloves and Tools," "Vacations," "Holidays with Pay," "Insurance for Active Employees," "Pensions," "Successors," "Transferees and Assigns," "Wages," "Cost of Living," and "Duration of Contract Clauses" from the Union's original proposal.13 After this listing, Alvarez requested discussion of economic matters stating that the Union could make no movement until these issues were presented and discussed. Mueller's reply was to the effect that an impasse had been reached by the parties. This was approximately at 10 a.m. The mediator then separated the parties. What the mediator discussed separately with each of the parties is unrecorded in the record.' 4 However, the mediator requested of the Respondent, when the parties came together at joint session later in the day, to submit its economic proposal. This request was honored by Mueller and the Respondent's economic proposal was laid on the table. A recitation of the proposals is here unnecessary because the parties agreed by stipulation of the events of the final, later meeting that the economic proposals of the Respondent constituted no more than the Respondent was giving the employees by way of wages and fringe benefits than it had been giving the employees in the unit before the negotiations began. When the proposal was laid on the table, Alvarez asked numerous questions and made a statement to the effect that, there being no increase in wages or benefits, the proposal was "kind of lean." Mueller answered this observation to the effect that the proposal was not lean. After the economic proposal was submitted and discussed briefly, as noted, the mediator again called the parties into separate caucus and the session was adjourned shortly thereafter with nothing accomplished. 12 Presumably what Alvarez meant was the intention of the Union to organize the remaining unorganized production and maintenance employ- ees not already included in the unit involved in the current proceeding or in the unit of moldmakers. 13 The details of these unresolved matters are not here set fbrth inasmuch as they are fully discussed in the factual statements of the earlier meetings. Thereafter, after several attempts to have another meeting with a representative of the Mediation and Conciliation Service, Alvarez was advised by a conciliation service representative that another bargaining session would be scheduled for the week of December 10. Sometime subsequent to that, Alvarez and the Respondent were advised that the eighth bargaining session, which proved to be the last bargaining session, was to be held with a mediator on December 11. Bud Libby, mediator at this bargaining session, stated at the outset that he had no available solution to resolve the dispute and that neither party had indicated a change of position to him. The Union at this session was represented by its counsel, John Keefer, who made the observation that the Respondent's proposal did not represent any change or improvement over the present practices of the Respondent. Mueller agreed with this characterization and stated that it was accurate. There was additional discussion back and forth but only with regard to generalities. However, it should be noted that Keefer stated he had recommended to the Union that it withdraw all of the tentative agreements it had made and concessions it had made at prior bargaining sessions. To this Mueller replied that if the Union did so it would find that Respondent's future bargaining position could be less favorable than it had in the past. Keefer indicated that he was aware of this but that, in his opinion, the Union should not adhere to any previously agreed- upon contract provisions or any of its earlier concessions to the Respondent in the absence of some movement by the Respondent with regard to economic matters. Thereafter, Mediator Libby met separately with repre- sentatives of the parties. Less than a half an hour later the parties met again at which time Libby announced that no progress had been made. Libby further stated that what had been unresolved remained unresolved and that previous tentative agreements and concessions would remain in existence. The meeting was thereupon adjourned and no additional bargaining meetings were held from that date to the date of the hearing herein. Although, as late as December 11, 1974, the Respondent refused to move from its position with regard to economic matters, on February 20, 1975, Mueller advised Alvarez by letter of that date that the Respondent desired to effectuate a wage increase of 15 to 20 cents per hour for bargaining unit employees commencing March 2, 1975. On that date also, the Respondent notified all employees other than those represented by the Union that they would receive a wage increase of a minimum of 15 cents per hour effective March 2, 1975. In the same notice to its employees, other than those represented by the Union, the Respondent reminded its employees that it had placed into effect wage increases of at least 45 cents per hour since March 1974. Again, on June 29, 1975, after notification to the Union, the Respondent put into effect another wage increase. Although the Union advised the Respondent by letter dated June 20, 1975, that it did not object to this increase, 14 Although the testimony as to what occurred between the Union and the mediator was offered by counsel for the General Counsel and for the Union, the testimony was not permitted inasmuch as the effectiveness of the Mediation Service could well be hampered by permitting these confidential conversations to be entered into the records of the Board cases. 160 BARTLETT-COLLINS COMPANY probably because it could not in view of the rising cost of living, the Union informed the Respondent that the wage increase was insufficient and did not begin to compensate employees in proportion to the rising cost of living and other economic conditions faced by the employees. It should be noted, in connection with the wage increases effectuated by the Respondent between the time of the beginning of the Union's organizational campaign through June 1975, that in past years, with only one exception as testified by Respondent's vice president-secretary, Irving Bartlett, the Respondent had effectuated but one wage adjustment each year, this occurring usually during June or July. Also Irving Bartlett admitted that he could remember no other time, except the year 1968, in which the Respondent gave its employees more than one wage increase in any year before the advent of the Union. Although, as noted above, there have been no further bargaining meetings since the meeting of December II, 1974, there have been attempts, although somewhat tentative, by both parties to seek to move in the direction of a contract to some minor extent. Thus, in the Union's letter dated June 20, 1975, in which the Union consented to the Respondent's contemplated wage raise to be effectuated on June 29, the Union's counsel suggested that bargaining begin once again if the Respondent was "considering any movement whatsoever with respect to existing bargaining issues, particularly those relating to economic matters." Respondent's counsel, by letter dated July 18, 1975, replied that with regard to union counsel's statement concerning the readiness of union representatives to engage in further collective bargaining, inquired whether the Union had any change of position with respect to existing bargaining issues as compared with the positions taken by the Union at the last two meetings of the parties. Mueller, in this letter, further inquired if the letter would support an inference that the Union no longer considered noneconom- ic matters to be an issue, and if this was so, a statement to such effect might be helpful. In the same letter, Mueller indicated that the Respondent had offered to change its position on September 26 to Mediator Arnold in several respects. 15 Mueller also indicated in that letter of July 18, 1975, to the Union's counsel that the Respondent might be willing to change its position with respect to its management rights clause, its no-strike, no-lockout clause, and its work by supervisors clause. By letter dated July 25, 1975, the Union's counsel wrote Mueller stating, among other things, that "in order to avoid any misunderstanding, you are also advised that the Union definitely considers all previously discussed, unresolved noneconomic matters as viable bargaining issues between the parties." Union counsel also stated in that letter that the Union's position with regard to the bargaining negotiations had not changed since Decem- ber I I, 1974, the date of the last bargaining session. By letter dated September 22, 1975, in response to union counsel's letter of July 25, 1975, Mueller, among other things, stated as follows: iS Inasmuch as testimony with regard to any er parle conversations between either of the parties and the mediator were excluded or expunged from the record. I do not consider as evidence any matter which Mueller referred to as having been communicated to the mediator on September 26 . . . you, as counsel of record for the Union as a member of the Union's bargaining team on December 11, 1974, are hereby advised that the foregoing offers are now still outstanding and available for acceptance by you or by Mr. Alvarez and his bargaining team. The first of these offers was with respect to the Company's management rights proposal. Respondent was willing to change its management rights clause to a minor degree by adding the words "except to the extent that such rights are expressly limited or restricted by this agreement" and the rest of the managements rights clause would remain unchanged as submitted by the Respondent. This, of course, would retain for the Respondent the complete management rights as outlined in its very lengthy manage- ment rights proposal and ending that such management rights were to be without interference, restrictions, or recourse to the grievance and arbitration provisions of the agreement. With regard to the "No-Strike, No- Lockout" proposal, the Company's amendment would merely add the state- ment "except for the sole issues of whether the employee, in fact, violated this article" still retaining the right of the Company to discharge and mete out punishment or discipline to any employees without recourse by the said employee or the Union to the grievance or arbitration procedures of the contract. With respect to the "Work by Supervisors" proposal, the Company reoffered, as it had at earlier bargaining sessions, to substitute in lieu of its original proposal the words "supervisors will continue to perform the work they have done in the past." It should be noted that these later offers to the Union were made after the commencement of the hearing in the current proceeding. It should also be noted that, during the entire period from the inception of the Union's campaign to organize the unit employees up through and including the dates of the hearing herein, the Respondent has always informed the Union of any action it intended to take which could affect in any way any of the employee-members in the unit represented by the Union. Thus, in addition to the request for the Union's consent to the wage increases, as above recited, the Respondent has requested the Union's consent to such things as company picnics, gifts of fruit at Christmastime and during the spring of 1975, and also has given the Union, upon its request, information such as the names and addresses of employees who were hired by the Respondent after the strike began on September 15, 1974, who were included in the trust agreement for the employ- ees' annuity or retirement fund and, in addition, has informed the Union about increased cost of certain insurance to which employees are entitled on a voluntary basis. Thus, with regard to its relations with the Union, except for the extreme difficulties in the negotiations, the Respondent has been careful to notify the Union with regard to any contemplated action which could have an effect on unit employees. However, before the strike began, and while negotiations were taking place, and subsequent to the strike, certain as contained in his July 18, 1975, letter to the Union's counsel. I merely cite the letter as a possible indication that the Respondent was at that time. July 18. 1975, possibly ready to move from its former position with regard to noneconomic matters. 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD events occurred, hereinafter recited, which are alleged to have been violative of the Act and which the General Counsel and the Union contend reflect the Respondent's true attitude toward the Union and unionization of its employees and which, they contend, should be taken into consideration in assessing whether the Respondent ap- proached bargaining as required by Section 8(d) of the Act. D. Interference, Coercion, and Restraint 1. Interrogation and threats and alleged acts thereof Approximately 2 or 3 weeks before the strike com- menced on September 15, Supervisor Clyde Adams of the mold shop engaged employee Darrell Lett in a conversa- tion, asking Lett what the latter would do in the event forming department employees went out on strike. Lett answered to the effect that he would honor the picket line. Adams then inquired of Lett as to why Lett would do so. Lett answered that he did not desire to jeopardize his union card. Adams then stated to the effect that the forming department employees, the unit represented by the Union, were "riding on the moldmakers' back." He then told Lett that the latter was placing himself in a precarious position should he honor the picket line and further explained this statement by telling Lett that the latter could lose his job and retirement benefits if Lett honored the picket line. Again, approximately I week before the strike began, in the mold shop, Adams inquired of Lett whether the latter intended to honor the picket line. Lett replied in the affirmative. As he had done before, Adams then informed Lett that there was a "good chance" that Lett would lose his job and also his pension if Lett honored the picket line.16 Adams was again involved in a conversation with another moldmaker, Harold Alberding. Adams asked Alberding what the latter thought about the Union and also if the moldmakers were going to honor the picket line in event of a strike. Alberding answered that he could not speak for the other employees. Upon this reply, Adams asked Alberding about the latter's personal feelings concerning the strike and the possibility of a picket line 1' From the credited testimony of employee Lett. Adams, in testifying, although stating that he held a withdrawal card from the moldmakers unit of the International Union, denied ever making any statements of the type recited above to Lett. He stated, to the contrary, that the employees were asking whether the Respondent would continue to operate in the face of a strike and he infiormed the employees that he, Adams, had been so informed. But in his testimony, Adams maintained that that was the only information or statement that he imparted to Lett with regard to the strike. Upon my observation of the two witnesses and upon the manner in which they testified, I regard Lett as the more credible of the two, especially in view of some of Adams' testimony which was somewhat equivocal even in answering leading questions of counsel. 17 Adams denied specifically that he told Alberding that the day he went on strike he would lose his job. Adams also testified that the conversations were not as Alberding had testified. Adams stated that he had been a member of the Union and had a withdrawal card which was given him when he was made a supervisor. Formally, Alberding had been Adams' supervisor before he returned to rank and file. Adams testified that the conversation came up only in the context in which Adams was concerned about losing his union card if he worked and that it was Alberding who stated if Adams made a single mold he would be through with any possibility of continuing with the Union. Adams stated that he was concerned with his future because he did not know what would happen and could possibly return to rank and and whether Alberding would honor the picket line. Alberding answered in the affirmative. Adams then told Alberding that in the past the employees had not remained united during strikes and that the strike by the employees in the unit involved in the current proceeding would not continue for more than 2 weeks. At one period during this conversation Adams told Alberding "you know the day that you don't cross the picket line, is the day you lose your job." Sometime later, on approximately September 11 or 12, while waiting for a light to change as he was driving his car, Alberding was engaged by Adams in another conversation. Again Adams asked if the moldmakers would honor the picket line and Alberding again answered in the affirma- tive. Adams then inquired of Alberding whether the latter was invited to a union meeting to be held that evening at which time a strike vote was to be taken. Alberding again replied in the affirmative.17 Again, on approximately September 12, Adams ap- proached employee Lett and another moldmaker, Johnny Roberts, while they were in the mold shop working and asked the two whether there would be a picket line on September 15. Roberts answered that as far as he knew there would be one on the 15th. Adams then stated "well, if they do, are you going to cross it?" To which Roberts answered that he just did not believe in crossing picket lines. At this point Adams interjected, "Well, I guess you know if you don't, you are probably going to lose your job, your retirement and everything you worked for all these years?" Roberts answered, "Well, I guess that's just the way it'll have to be, because I'm not going to cross one." There was further conversation during which time Roberts stated that if he were discharged for not crossing the picket line he would put in for unemployment and get it and also put in for retirement and could get that too. Roberts also stated that he could file charges against the Company for firing him for not crossing the picket line and that he thought he could win that charge too. Adams then stated to Roberts to the effect that to be honest with Roberts, file and if he lost his union card because he worked during any possible strike by the moldmakers he could, in such event, lose his right to membership in the Union which would, in that respect, possibly affect his job future. Although I do, to an extent, credit Adams to the effect that there was some conversation with regard to Adams' future as a member of the moldmakers union, I also conclude, because of other factors, that Adams did inquire whether Alberding would cross the picket line and also told Alberding that if the latter did cross the picket line he would lose his job. This finding in based not only upon my observation of the witnesses, but also upon the fact that a number of other General Counsel's witnesses, as hereinafter related, credibly testified to similar conversations between themselves and Adams. Thus, in each case, although Adams denied the very parts of those conversations which could constitute violations of the Act, it would have required each of the General Counsel's witnesses who testified to these acts and conversations to have entered into a conspiracy to testify to matters which did not occur. I could conceive of a single individual possibly doing so, but I cannot and do not accept the probability that these witnesses were testifying to matters which they concertedly invented from the whole cloth. Accordingly, I credit the witnesses for the General Counsel for the most part except as hereinafter set forth and do not credit Adams' denials of those portions of the conversations which would constitute violations of the Act. 162 BARTLETT-COLLINS COMPANY Adams did not know what the answer was but all he knew was what he had been told.18 In another conversation at approximately the same time, in the mold shop, Adams inquired of moldmaker James Morgan what the latter would do if a strike was in progress. Morgan answered that he would "lay carpet" with a friend. This conversation occurred just at the end of the day when Morgan was leaving. Adams stated to Morgan that the latter was making a big mistake and that "we could lose our jobs if we went out on strike." '9 Approximately 2 weeks before the strike commenced, Adams engaged apprentice moldmaker Richard Roberts in a conversation in Adams' office where Roberts had gone to receive his assignment. Adams asked Roberts how the latter felt about the anticipated strike and whether Roberts would participate. Roberts answered to the effect that he would honor any picket line. Adams then stated that Roberts could lose his job or his retirement if he did so. In either this or another conversation, Adams told apprentice Roberts that the men who honored the picket line could also lose their jobs or their retirement. Adams stated that "some of the guys in the mold shop have a pretty good sum of money in retirement," and that he felt that these men could possibly lose that money too. On the following day, Adams again involved apprentice Roberts in a conversa- tion when Roberts went into Adams' office to ask for an assignment. The conversation concerned the possible strike and the same type of question and answers were given between the two as in the first conversation. There was a third conversation between the two and that conversation also concerned the same matters. The same questions were asked and the same statements made by Adams to the effect that the moldmakers who honored the picket line could lose their jobs and their retirement. 20 Approximately a week and a half before the commence- ment of the strike, Darrell Lett and Richard Roberts were in the office of James Roth, Respondent's personnel manager and an admitted supervisor within the meaning of the Act, for the purpose of signing for savings bonds. While Lett was signing for his bond, Roberts and Roth were having a conversation regarding fishing. Then Roth asked what Lett and Roberts were going to do in the event the Union placed a picket line at the Respondent's facility. Both Lett and Roberts stated that they would honor the picket line. To this admission, Roth replied that he thought it would be a "bad deal" for the men because they could lose their jobs and their retirement.2 ' 'a From the credited testimony of Roberts. I credit Roberts over the denials of Adams for reasons heretofore set forth. 19 From credited testimony of Morgan whom I credit for the reasons previously stated. 20 From credited testimony of Roberts which is credited for reasons stated heretofore. 2' From credited portions of the testimony of both Lett and Roberts. In effect, Roth admitted that he told both of these individuals that they could lose a portion of their retirement if they were permanently replaced. However, both Lett and Roberts used the words "lose your jobs" or words to that effect. Accordingly, I credit the version of the conversation as related by both Lett and Roberts whom I have credited in other respects. z2 From credited testimony of employee Lett. Although Roth denied that he had the conversation with Lett and Roberts. he did admit to the conversation between himself and Lett in which the card was discussed. Roth's version of the conversation was that it was Lett who began the Some 2 or 3 weeks before the strike commenced, Darrell Lett and Personnel Manager Roth had a conversation in the mold shop. In that conversation, Roth asked Lett what the latter was going to do in the event of a picket line. Lett stated that he would not work and would not cross the picket line because it would put his card in jeopardy, referring to his journeymen's card from the Union. At this point, Roth stated, "You mean you'd take a chance on losing your job and your retirement over that card?" To which Lett answered in the affirmative. Roth replied to the effect that the card sure meant a lot to Lett. Lett then went on to explain to Roth that with the card he could go anywhere moldmakers were needed and obtain work and that without it he could not. To this statement, Roth rejoined, "Well, you know that you don't have to have that card to work at Bartlett-Collins." 22 After the strike began, Robert Robertson, a supervisor in the selecting and packing department, had conversations with various employees concerning the picket line. Accord- ing to employee Georgene Witham, an employee of the department, Robertson asked Witham whether Witham's husband was walking the picket line and that this question was repeated almost daily with Robertson asking Witham what was occurring on the picket line and if her husband was still out there. Witham further testified that Robertson asked her at one time if she knew anything about a car being burned; and whether any of the employees on the picket line would attempt to burn a car. Witham denied any knowledge of knowing anybody who would burn a car. On cross-examination, Witham testified that on the first time that Robertson spoke to her he asked her whether Doug Bell was on the picket line.2 3 Employee Joanne Harper testified that Robertson had a conversation with her approximately a week after the strike commenced when she was in the break area. According to Harper, Robertson asked how Harper's father was doing and whether he was still on strike. Robertson stated that he had seen her father earlier during the strike but had not seen him lately. Harper replied that her father was down at another area on the picket line where the trucks normally entered the premises. Then they discussed the length of the strike. Harper stated that she wished that the strike would soon come to an end. According to Harper, Robertson then stated, "Well, it won't do them no good no matter how long they're out. Because Bartlett has about S40,000,000, he can outlast them or he can just shut the plant down." conversation about the stnke by asking whether the Company would continue operations if there was a strike. According to Roth, the conversation with regard to the card did not differ in any marked degree from the conversation as alleged by Lett. He admitted that he told Lett that he did not need a card to work for Bartlett-Collins. On the basis of the agreed-upon portions of the testimony of Lett and Roth and from my observation of both of these individuals, I find and conclude that Lett's version is the more accurate, although, perhaps, there were portions in Lett's testimony, as brought out on his cross-examination. which were either incomplete or perhaps slightly at variance with some of the direct testimony. However, on the basis of the record as a whole with regard to the testimony of both of these individuals, I conclude and find that Lett's version is, at the very least, an accurate resume of what occurred. 21 Bell is alleged in the complaint to have been discharged for his support of the Union. 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another employee, Erma Morrow also testified to a conversation with Robertson. According to Morrow, Robertson and employee Jackie Cope had a conversation on September 20, 5 days after the strike began, about 7 to 7:30 p.m. Morrow testified that she overheard Robertson telling Cope "that if all the women got involved with the Union they would get fired and it wouldn't help anyway." She further testified that Robertson started to talk about the strike that had occurred in the Respondent's plant in 1950 and stated, "It just didn't help anything at all it, just got a lot of people fired and everything." I credit the testimony of the three witnesses who testified as to these matters involving Supervisor Robertson and conclude that the conversation occurred in much the vein that they related in their testimony.2 4 Another supervisor who was involved with alleged unlawful conversations with various employees was Rich- ard Turner, a supervisor in the selecting and packing department. On September 15, on the shift between the hours of I and 3 a.m., Turner interrupted a conversation between employees Randall Millikan, Billy Howk, George Howk, and Mark Beaver and asked whether they were going to walk the picket line when the strike began as scheduled for 7 a.m. that day. Millikan answered that he would walk the picket line. Turner then stated to the group, "Well, I wouldn't. My job mean too much to me. I'd try to stay in and keep it .... I wouldn't take a chance on losing it." And then Turner stated that he would not walk a picket line for $35 a week. Evidently, Turner was referring to strike benefits to be paid for walking the picket line.25 However, with regard to testimony by employee Bell that in the presence of Floreine Aggers and Margaret Martin, Richard Turner asked Bell whether the latter intended to participate in the strike, I do not credit Bell. Allegedly, this conversation took place on approximately September 1. However, Turner testified that he had not worked for years on the shift at which Bell testified this question took place. Allegedly, according to Bell, the conversation occurred at approximately 8 to 9 p.m. on the 3 to 11 shift. Inasmuch as I find and conclude that Turner did not work that shift, I also conclude that this conversation or this questioning did not take place. I therefore do not credit Bell in this respect. 24 I have taken into consideration in making this credibility finding the testimony of Robertson to the effect that he had seen Witham's husband and Harper's father on the picket line and it would have served no purpose for him to ask whether they were on the picket line. Robertson further denied he had had any conversation with employee Witham with regard to employee Doug Bell. Furthermore, Robertson admitted he talked with employee Jackie Cope several times, but denied that he had any conversation with Cope to the effect that anyone would be fired and that the strike would not help anything or that the 1950 stnkejust resulted in people losing their jobs. He testified that he did state to Cope "if a lot of people walked out they would be replaced and that in the 1951 strike a lot of people did not return to work." Although Robertson's testimony would be believable in that employees could misinterpret a statement made by a supervisor such as those which Robertson testified he made, and in order to give this innocent connotation to the several conversations, it would be necessary to find that the three employees involved were either exaggerat- ing, misinterpreting, or, in fact, lying with regard to the alleged statements made by Robertson. I find that, although there was some lack of definiteness in regard to some of the testimony of these three witnesses with regard to time and place, a careful search of Robertson's'testimony reveals that he. too, was somewhat indefinite as to when and where and under what circumstances the conversations occurred. Accordingly, by reason of this Bell further testified as to an additional conversation with Turner on September 7. According to Bell, he observed Turner destroying various communications is- sued by the Union setting forth its purposes and benefits which had been posted in the Respondent's employees' canteen area. While doing this, Turner told Bell, according to Bell, "I don't know what those stupid bastards think they are accomplishing by putting these out." For the reasons heretofore recited as to why I did not credit Bell, I do not credit him in this respect either. I therefore conclude that this incident did not occur as related by Bell.26 I conclude that all of the foregoing conversations involving interrogations of employees as to whether they were going to participate in the anticipated strike consti- tuted unlawful interrogation in violation of Section 8(a)(1) of the Act. Thus, Supervisor Adams and Supervisor Roth's interrogation of employee Darrell Lett, as set forth above, constitutes interrogation in violation of Section 8(aX)() of the Act when they asked, at separate times, whether Lett intended to honor the picket line in the event that the Union established such a picket line. Additionally, Adams' interrogation of Lett and Roberts on September 12 and employee Morgan on September 13, or approximately on those dates, constitutes unlawful interrogation which I find to have been violative of Section 8(a)(3) of the Act. Moreover, Roth's interrogation of Lett on August 23, and of Lett and Alberding during the first part of September, constitutes such violations and I so find. I also find and conclude that Robertson's interrogation of employee Georgene Witham on an almost daily basis with regard not only to her own activity, but to the activity of others constituted unlawful interrogation in violation of Section 8(aX!) of the Act. Additionally, Supervisor Richard Turner's interrogation of Randy Millikan on September 15 between I and 3 a.m., in the presence of employees Howk and Beaver, whether they were going to walk the picket line constituted unlawful interrogation. Also, the interrogation, as set forth above, of employee Harper by Supervisor Robinson constituted unlawful interrogation when Robert- son questioned Harper regarding the latter's union affilia- tion and the participation in the strike of relatives and other employees. and by reason of my observation of the witnesses, I find and conclude that the versions given by the three witnesses, Witham, Harper, and Morrow, were, in substance, a fair representation of the conversations that did occur. Additionally, with regard to the statement that Bartlett had about $40 million and could outlast the Union or could just shut the plant down, Mattie Thomas, another employee who was present at the time, confirmed the testimony of Harper. 25 From the testimony of employee Millikan. Turner testified that he did participate in a conversation on that morning because he overheard the others trying to induce Billy Howk to sign up to go on the picket line and that Howk was only 18 years of age. Turner testified that he participated in the conversation only to the extent of telling Howk that he was too young to be walking a picket line. Turner denied that he asked Howk who was going to picket or anything to that effect. Nor did he mention the sum of $35 or anything in that vein. Again, I credit the testimony of Millikan against the mere denials of Turner and find that Millikan did not, upon cross- examination, change his testimony in any material respect. Accordingly, and upon my observation of these witnesses, I credit Millikan. 6 Although it is possible that Turner could have been present at a time other than his normal shift time, I find nothing in the record aside from Bell's testimony to establish that Turner was present off his normal shift. 164 BARTLETT-COLLINS COMPANY In addition to the above findings of unlawful interroga- tion, I find and conclude that these supervisors also violated Section 8(a)(1) by coercively threatening employ- ees that they would lose their jobs if they honored the picket line. The Respondent, through its witnesses and in its brief, argues that these supervisors were merely explaining to the employees that they could be replaced in the event that they were to go on strike in sympathy with the employees in the bargaining unit or if they refused to cross the picket line established by such employees. I do not agree. Thus, when Supervisor Adams, at the time he interrogated employee Lett, told the latter that he could lose his job and retirement, such statement constituted a violation of Section 8(a)( ), even assuming it was merely an expression of the Employer's right to permanently replace strikers. The Board has held that the telling of employees that they will be permanently replaced if they participate in a strike without, at the same time, informing their employees of the corresponding right of reinstatement upon conditional application for reinstatement is violative of Section 8(aXI) of the Act.27 Also Adams' telling Lett on September 15, that there was a good chance that Lett would lose his job and retirement over the strike consti- tuted an equally violative threat. Additionally, Personnel Director Roth's telling employee Lett that the latter would be taking a chance of losing his job and his retirement if he honored the picket line fell within the same classification of violation. I find that this, too, constituted a violation of Section 8(a)(1) of the Act. Roth's repetition of this same theme at a later date, as set forth above, constituted an additional violation of the same type and I so find.28 Additionally, I find that Robertson's statement to Cope, to the effect that individuals working in the selecting packing department who became involved in union activities would be terminated, constitutes an additional coercive threat violative of Section 8(aX)() of the Act.29 Finally, I find and conclude that the conversation between Robertson and Harper in which Robertson questioned Harper about her father being on strike and in which Robertson stated that "Bartlett had about $40,000,000" and that the Respondent could outlast the Union or the Bartletts could just shut the plant down constituted a threat of loss of employment for all of the employees because of their union activity and sympathies for the Union. It is unnecessary to cite cases to sustain a finding that such a statement is violative of Section 8(a)(1) of the Act. In making the foregoing findings, I have considered the fact that on September 12, 1974, the Respondent submitted to all of its employees a notice on its letterhead signed by Charley Bartlett and Irving Bartlett to the effect that the Respondent was aware of the fact that there might be a strike within the next few days. In that notice Respondent set forth the legal rights of both the Respondent and the employees with regard to what the Respondent, at least, 27 See Hicks-Ponder Co., A Division of Blue Bell, Inc., 186 NLRB 712. 725 (1970): West Coast Casket Company, Inc., 192 NLRB 624, 640 (1971). 28 I have not heretofore set forth certain conversations between employee Morrow and head lehrman. David Haney. I have not recited these facts because it is clear, from Morrow's testimony, that the conversations between Morrow and Haney with regard to the Union and alleged threats and interrogation constituted mere joking and banter between the two. I have theretofore not found it necessary to recite these matters inasmuch as, considered would be their respective rights in the event of an economic strike. Contained in this notice was a sentence which read "The Company has the right to operate its business and to fill permanently its jobs in case of a strike." The Respondent would seem to argue that in the light of this notice and in the light of the testimony of James Roth, for one, that he had knowledge of this notice, that Roth would not have made the statement of which he is accused because he knew the employees were already apprised of the fact that they could be replaced if the Respondent chose to operate during the strike. However, even though the Respondent did notify the employees with regard to their rights and, even assuming knowledge on the part of each of the Respondent's supervisors, above named, that the Respondent had notified the employees of the Respon- dent's purported right to replace them if they went on strike, the statements that the employees could possibly lose their jobs and their pension rights still constitute violation of the Act. Even though the employees may have had such knowledge in their possession, and even assum- ing, arguendo, that the strike was purely an economic strike, the statements by the supervisors, above named, consti- tuted a threat of job security if the employees chose to support the Union. The cases above cited support this finding. It goes without saying that a threat of loss of employ- ment remains a threat of loss of employment even assuming prior knowledge on the part of the employees threatened that they could lose their jobs in the event of activity on their part. Moreover, the statement issued by Respondent, that it had the right to operate its business and to fill permanently its jobs in case of a strike, was not of the same degree of threat or coercion as that of supervisors' telling employees that they could lose their jobs and their pension it they went on strike. 2. Impression of surveillance Erma Morrow, who quit the Respondent's employ on September 24, 1974, and some of whose testimony is heretofore set forth, had engaged, in the period immediate- ly before she quit, in assisting the Union to organize the employees in the selecting and packing department. She had made contact with Alvarez on behalf of the employees in that department and had scheduled a meeting with Alvarez around that time. On September 23, she received a telephone call, which was answered by David Haney, head lehrman, who told her in effect that the telephone call was from "the Union representative about the meeting to- night." In testifying, Morrow, as noted above, realized that Haeny was talking to her in a joking fashion and I have heretofore refused to find that this was a violation. However, on September 25, Morrow went to Supervisor Andrew Meyers' office where, as she was entering the office, she overheard a conversation between Meyers and under the circumstances, they could not constitute either unlawful interrogation or threats constituting coercion and restraint. This especially is true in view of Morrow's testimony that she knew that Haney was a supervisor and could not sign a union card and she admitted that she asked Haney to sign the card merely as a prank orjoke. 29 Actually what Robertson told Cope was "All the women who got involved with the Union would get fired and it wouldn't help any." 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisor Ronald Wade. Wade asked Meyers what the women in the selecting packing department intended to do about the Union. By this time, Meyers was aware that Morrow had entered his office and turned around toward her and stated, "You'll have to ask Erma, because she was the head of the Union." Morrow replied that she had no more knowledge regarding the Union than did other employees.30 Upon the basis of the foregoing, I find and conclude that the statement by Meyers gave Morrow the impression that he knew of her activities and that Respondent was conducting surveillance of the union activities of Morrow and other employees in the department. Accordingly, I find and conclude that Meyers' statement created the impres- sion of surveillance which constituted interference and, accordingly, is violative of Section 8(aX I) of the Act. 3. The furnishing of work gloves without charge The complaint herein alleges that the Respondent furnished work gloves without charge to employees in the so-called hot end during the strike when the regular hot end employees represented by the Respondent were on strike. The furnishing of the work gloves is alleged in the complaint to be a violation of both Section 8(a)(I) and 8(a)(5) of the Act. In other words, the General Counsel and Charging Party contend that the furnishing of the work gloves constituted interference, restraint, and coercion within the meaning of Section 8(a)(l) and also constituted unilateral action on the part of the Respondent without consultation with the Union at a time when the Respon- dent, in its bargaining with the Union, refused to furnish work gloves to the employees in the unit represented by the Union. I shall at this juncture deal only with the 8(a)(1) aspect of the complaint allegations. There is no question that over the period of years the Respondent has not furnished free work gloves to any of its employees in the normal course of events in the operation of the "hot end" of the plant. In connection with this, it has heretofore been noted that the Respondent refused to consent to the Union's request that such hot end employees be furnished with necessary work gloves free of charge by reason of the fact that the work involved required the handling of material, the heat of which could readily injure an individual. It is further established that the Respondent required its employees in the hot end to wear work gloves. In support of its allegation and contention, the General Counsel presented a single witness, employee Edward Adney, who testified that he had formerly been an oiler but on the second day of the strike was assigned to the operation of a paste mold machine which required the handling of hot material. The gloves which Adney first wore were long sleeve gloves. When Adney's foreman, Bill Adams, saw these gloves, he admonished Adney, telling the latter that the gloves were unsafe and informed Adams that 30 From the credited testimony of Morrow. While it is true that Morrow continued to assist the Union in organizing the selecting-packing depart- ment employees after she left the Respondent's employ on either September 24 or 25, inasmuch as she no longer has any connection with the Respondent and was subpenaed to testify at the hearing, I find that she can afford to be more truthful than Respondent's Supervisor Meyers who denied that any such conversation occurred. He stated that he could not remember whether Wade was in his office at the time and that Morrow merely came there was a sufficient supply of gloves free of charge in the cloakroom. This incident occurred approximately I week after the strike began and Adney continued to be furnished free gloves until he, too, left the plant to join the strike at the end of approximately 1 month. Adney further testified that virtually all of the employees working on the hot end were required to use gloves because of the temperature of the hot glass that was handled. He further testified that employees could use anywhere from 15 to 20 pairs of gloves in a month's time, depending upon the nature of the work performed by an employee. Furthermore, Adney testified that before the strike the employees purchased all of their own gloves from vending machines on the Respondent's premises at a cost of between 70 cents and $1.20. However, Adney admitted, in testifying, that the employees were not required to purchase the gloves from the vending machines and were permitted to purchase them elsewhere, provided they met safety requirements. Respondent's official, Irving Bartlett, testified that the employees normally did, indeed, furnish their own work gloves and that the machines for vending such work gloves were located on the Respondent's premises in order to have an accessible source of supply and in order to furnish the work gloves at a minimal cost to the employees. Bartlett further testified that the only time the Respondent furnished free work gloves was during emergencies and that the strike period was just such an emergency until approximately the middle of January 1975. The emergen- cies referred to by Bartlett were those situations where an employee was temporarily transferred from a job which did not require gloves to another which required gloves and which transfer was at the Respondent's request. Addition- ally, Bartlett testified that some years before, in either 1970 or 1971, some emergency repairs on the furnaces became necessary and employees from other departments were called upon to assist in the process of making these emergency furnace repairs. At that time free gloves were furnished to these employees who were transferred to perform this emergency work. Bartlett testified that the reason the strike period which began on September 15, 1974, was considered an emergen- cy was that when the regular employees of the hot end went on strike employees who were unfamiliar with the work and replacements were brought in to perform the hot end work. Accordingly, this created an emergency situation in which the Respondent was forced, by reason of such emergency, to furnish free work gloves. There was a constant transfer of employees from one job to another and one section to another during this period and, accordingly, the necessity for furnishing work gloves without charge did not conclude as an emergency matter until approximately January 15, 1975, when the department became stabilized with, presumably, steady replacements who, by that time, into the office to tell him that she was quitting. He emphatically denied that he made any statement about Morrow s being a union leader or any other words to that effect. Under all of the circumstances and upon my observation of the witnesses and because I conclude that Morrow was the more objective of the two, I credit Morrow. Additionally, significantly, Wade did not testify with regard to this conversation and was not asked whether he was present. Accordingly, Meyers' denial is not substantial by any testimony given by Wade. 166 BARTLETT-COLLINS COMPANY had learned their respective jobs. Since that time the furnishing of work gloves free of charge has been almost completely brought to a halt. While there is no doubt that the Respondent, in the past, and before the strike situation occurred on September 15, 1974, did not furnish work gloves to its employees free of charge except in the case of emergencies or temporary transfers, I cannot conclude that during the long period from September 15, 1975, until January 1976, such an emergency existed as required a change in company policy. While an emergency might have existed during the first few weeks of the strike period, it is difficult to accept the fact that a period of approximately 4 months constituted a continuing emergency period. I do not attempt here to second guess the Respondent as to the necessity for the giving of emergency work gloves at no cost to the employees who were working during this period, but, at least, to the employees who were on the picket line and were represented by the Respondent it could readily have the effect of interfering with these employees' Section 7 rights in that the likely effect on such employees would be that they could get without the Union free work gloves whereas through their bargaining representative they could not. It is undisputed, that, in such instances, it is not necessary to show either the Respondent's motivation or, on the other hand, the reaction of the employees in the bargaining unit who were likely to be affected. It is only necessary, in such instances, for counsel for the General Counsel to demonstrate that the probable consequence of such action would be to display to the employees that it was not necessary for them to be represented by the Union in order to obtain benefits which they had not been able to obtain through the Union. This he has done. Accordingly, I find that the furnishing of free work gloves to nonstrikers constitutes interference within the meaning of Section 8(a)(1) of the Act and is therefore violative of that section. 4. The no-solicitation rule and its enforcement The complaint alleges, in substance, that the Respon- dent, through its supervisors and agents, Charles Warren and Andrew Meyers, on or about September 25 and 26, discriminatorily enforced a rule prohibiting solicitation of union membership during its employees' nonworking time or on company time or on company property by orally advising its employees of the rule and warning them of penalties if such rule were violated. Additionally, the complaint also alleges that Ronald Wade threatened discharge or loss of employment for union activity of the employees in the bargaining unit on such time. 31 All of the foregoing from the credited testimony of Larry Harper. Theresa Smith, Georgene Witham as corroborated by Smith, and Joanne Harper. I find the testimony of these employees to be consistent on both cross and direct examination and, additionally, I find that the testimony was also consistent one with the other as to the use of the words "company time" by Wade. In testifying, Wade did admit that Meyers had instructed him to inform the employees that the employees would be subject to disciplinary action if they were found to be soliciting signatures during "working hours." Wade testified, on cross-examination, that he told the employees he had been instructed by Andy Meyers to tell the people who worked under him that they were not supposed to carry on union activities or solicit signatures on union cards during working hours and that if they did engage in such activity they would be subject to disciplinary action. Furthermore, upon Supervisor Ronald Wade was involved in several conversations with employees in the select-pack classifica- tion with regard to union solicitation. Thus, on approxi- mately September 22, at or about 6 in the evening, on the stairway going up to the box loft, floor boy Larry Harper was told by Wade that Supervisor Meyers had instructed Wade to tell the employees that "If we was caught signing cards on company time, that something bad would happen to us." Also present at that time, beside Harper, were employees Connie and Cecil McClaffin. Again, on Septem- ber 24 at approximately 4 to 4:15 p.m. Wade engaged employees Georgene Witham, Theresa Smith, and Grace Little in a conversation. He told them, in effect, that the Respondent would terminate them if they were caught soliciting signatures on union authorization cards or otherwise found to be engaged in union activities. No time or place was specified by Wade. At that time Wade told these employees that he had been so instructed by someone in the "Main Office." On another occasion, on the same day, Wade told employees Joanne Harper, Hattie Stock- ton, and Pat Harvey that Andy Meyers had instructed him to inform employees that Meyers did not care whether they joined the Union but that they were not permitted to solicit signatures for the Union on "company time." 3 Another supervisor involved in conveying no-solicitation warnings to employees was Charles Warren of the selecting and packing department: On approximately September 25 at 3:50 in the afternoon of the day he spoke to employees Theresa Smith and Mildred Conners. Warren told the latter that he had been instructed by Meyers to inform employees that "anyone caught soliciting the union cards would be subject to being . . . their jobs would be terminated." Warren admitted, in testifying, that when Theresa Smith asked him what he meant by the remark that if anyone was caught soliciting union business they would be subject to release, he stated, "Well, if you are caught trying to get people to sign union cards on company property, you are just liable to get fired." This would seem to be an admission that the incident occurred as testified by General Counsel's witnesses, and I so find. Supervisor Ray Leffmer was charged in the complaint with orally threatening Respondent's employees with discharge or loss of employment or other reprisals for becoming members of the Union or giving assistance to it. Presumably, this paragraph would cover warnings and threats with regard to solicitation. I so conclude. On September 26 at approximately 7:15 in the morning Leffler spoke to employee Margaret Martin and said to her, "Well, I've been informed to tell everyone that anyone caught campaigning or soliciting for this Union will be- being confronted with his investigatory affidavit, Wade's attention was called to a statement in that affidavit which stated "I understand him [referring to Andy Meyers) to mean that he was concerned about the employees carrying on union activities during working hours and in the building, but that he did not care what they did elsewhere." While it is always possible that employees can misinterpret what is told them, I find that the employees who testified on behalf of the General Counsel in this regard were quite consistent in their testimony and, accordingly, neither misinterpreted nor fabricated. Upon my observation of them and Wade, I credit General Counsel's witnesses and find that Wade did instruct them that they could be discharged if they engaged in any solicitation and also if they engaged in solicitation on "company time." 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well, could be fired." Martin was somewhat startled by this remark and asked what Leffler meant. Leffler then repeated this statement. Floreine Aggers was then told by Martin to come behind the area where Martin was working. Aggers did so and then Martin asked Leffler to repeat his statement to Aggers. Although Aggers testified that this or a similar incident occurred on September 27 she testified also that Leffler stated "if we solicited or campaigned for the Union we would be fired." 32 Although Supervisor Meyers, himself, did not directly testify as to his instructions to the other employees, he admitted, in testifying, that at one time he saw Theresa Smith soliciting a signature on an authorization card. In testifying, Meyers did not explain in any way what instructions he had issued to other supervisors concerning union solicitation nor did he seek to clarify the same. Additionally, employee Joanne Harper testified, without contradiction, which testimony is accepted, that at various times before the strike herein she had been solicited in the plant on working time for contributions to the United Fund by Supervisor Homer Parks, to buy a chance on a gun by a fellow employee, Leonard James, and at another time was asked to purchase tickets for a musical band concert for the sheriffs posse. She was also asked to purchase tickets to the Tulsa State Fair which she purchased on the representation of the individual who solicited her, that he had been told to do so by Personnel Director James Roth. She also stated that she had been asked and had contributed to a baseball pool for the baseball world series during working time. Vice President Irving Bartlett admitted that the Respondent permitted contributions to be solicited for the United Fund. He testified that the solicitation for United Fund is the only solicitation permitted by the Company and that the Company does have a policy with respect to soliciting on company premises and company time. However, if solicita- tion was conducted other then that during company time, it was outside the knowledge of Bartlett. Whether the Respondent maintained an unlawful no- solicitation rule which was unlimited in any respect and was therefore unlawful is not truly an issue here. What is in issue is what was told to the employees, as heretofore related. I find that in no instance was the no-solicitation rule as related by supervisors to the employees limited to "working time," and, in fact, in one instance, as related above, there was no limitation as to time and place at all. Additionally, in one instance, employees were told that any solicitation for union matters on the company premises would subject the employees to discipline including discharge. In fact, Supervisor Warren admitted that the rule, as he related it to the employees, had no limitation with regard to time or place. Also Supervisor Wade admitted that he informed employees that they could not 32 From the credited testimony of Aggers and Martin. I have taken into consideration that Aggers is one of the individuals who was allegedly discriminatorily discharged and therefore could have been vindictive when testifying to what Leffier told her. However, I find that her statements conform almost completely and are strengthened by the testimony of Martin. Accordingly, since Martin's testimony stood up very well on cross- examination when she testified to the statements of Leffler in much the same manner as she did on direct, I find and conclude that the consistency betweeen Martin's testimony and Aggers' testimony is convincing as against Leffer's denial that he told anyone at any time that he said that anyone solicit or engage in union activity during "working hours." As noted above, Meyers, in testifying, did not mention in his testimony any limitation whatsoever. In any event, even assuming that what Irving Bartlett testified was the company policy would constitute a valid no-solicitation rule, it was related to the employees by the Respondent's supervisors, as heretofore related, in a manner which would render it presumptively invalid because, as described by the supervisors, the rule was overly broad in its extent and they related no legitimate reason for the rule as they explained it and as it was presented. Thus, the restrictions upon union solicitation imposed by the Respondent through its supervisors, which was not embodied in a written form, rendered the warnings directed to the employees in order to enforce such rule, violative of Section 8(aXl) of the Act.33 Historically, between the Board and court decisions there was some confusions as to the meaning of the words "company time," "working time," "working hours," and like words used by various employers in no-solicitation rules. In order to clarify this situation, the Board held: In our view, there is a clear distinction to be drawn between the terms "working hours" and "working time." The term "working hours" connotes the period of time from the beginning to the end of a workshift. Thus, the use of that term in a no-solicitation or no- distribution rule is reasonably calculated to mean that employees are prohibited from engaging in any form of union solicitation or distribution of union literature from the time they "clock in," or began their work shift, until the time they "clock out," or end their workshift. By contrast, the term "working time" or "work time" connotes the period of time that is spent in the performance of actual job duties, which would not include time alloted for lunch and break periods. Thus, the use of that term in a no-solicitation or no-distribu- tion rule would clearly convey the meaning to employ- ees that they were free to engage in solicitation or distribution during lunch and break periods which occurred during their working hours.34 The Board, in order to clarify these distinctions and set forth a workable rule once and for all, then stated: In light of the above distinction, we shall consider rules which prohibit solicitation or distribution during "working time" or "work time" to be valid on their face. On the other hand, those rules which prohibit solicitation or distribution during "working hours," unless their impact on lunch and breaktime is clarified, unduly restricts employees' rights under Section 7 of caught soliciting for the Union could be discharged. Nor do I credit Lefer's statement that he told Martin on September 15 or sometime thereafter that the latter was not to solicit or pass out union cards while "working on the job." Again, while it is always possible that the employees misunderstood or misinterpreted what was told them, I find and conclude, in this instance, that Martin and Aggers were the more reliable witnesses and they are credited in this respect. 33 Fayetteville Industrial Maintenance, Inc., 218 NLRB 889, 894 (1975). 34 Essex International, Inc., 211 NLRB 749, 750 (1974). 168 BARTLETT-COLLINS COMPANY the Act to engage in union solicitation or distribution during their nonworking time.3 5 Clearly, under the foregoing rule as set forth by the Board, when Supervisor Wade told Larry Harper and other employees that they could be disciplined if they were found signing union cards on company time, the violation is apparent. Of course, there is no question that the failure to limit the no-solicitation rule, of which Supervisor Wade informed employees Theresa Smith and Grace Little that they would be discharged for soliciting signatures for union authorization cards with no limitation as to time or place, was violative. And again, when Wade instructed employees Joanne Harper and others that he had been instructed by Supervisor Meyers to tell them that they were not allowed to solicit signatures during "company time," such instruc- tion constitutes a violation of Section 8(a)((l) of the Act.3 6 E. The Discharges 1. Douglas Bell Before September 17, 1974, Bell had been employed by the Respondent as a floorboy on the plane lehr. On September 15, the day the strike commenced, Bell was not scheduled to work and was off until the night of September 17 when he was scheduled to rL;port for work. However, on the night of September 16, Bell called his immediate supervisor, Foreman Robert Robertson, and informed the latter that he would not be reporting for work on September 17 as scheduled because he could not cross the picket line which had been established on September 15. Robertson relayed this information to Andy Meyers, supervisor of the select and pack department, who was Robertson's immediate superior. On the night of Septem- ber 17, when Bell failed to report to work as scheduled, despite the information which was given to Robertson and Meyers beforehand, Robertson placed a zero on the schedule sheet to show that Bell had not reported for work and then imparted this information to Meyers who, in turn, made up a slip indicating that Bell had quit his employ- ment with the Respondent. This quit slip was in due course of events sent to the personnel office where it was noted by Personnel Supervisor Roth. Although Meyers testified that he did not know that Bell had joined the picket line, the information imparted to him on September 16 must have put him on notice thereof. Additionally, Meyers testified that he did not see Bell on the picket line. Moreover, employee Georgene Witham credibly testified that, on the night that Bell was noted as having quit, Robertson asked her whether Bell was walking the picket line and Witham answered that Bell was doing just that. Robertson then told Witham that, because Bell was scheduled to work that evening, he would be terminated unless Bell reported to work in accordance with the previously posted schedule. From the foregoing I find and conclude that the Respondent's hierarchy, at least up to Supervisor Meyers, was aware of the fact that Bell did not report to work on 35 Id. at 750. 36 See also Groendyke Transport, Inc., 211 NLRB 921 (1974), where the Board held that "Respondent's proscnption of distribution during 'working hours' has an overbroad sweep and therefore violates Section 8(a)(1) of the September 17 because he was walking the picket line. It is possible that Personnel Director Roth was not aware of this fact when he received the quit slip with regard to Bell. Sometime later, Bell having had a workmen's compensa- tion matter with the Respondent and because Bell's counsel could not locate Bell, Bell's counsel made contact with the Respondent. Whatever conversation took place between Roth and Bell's counsel, Bell was told by his counsel, when counsel finally located him, that Respon- dent's records reflected Bell had quit. Thereupon, Bell made contact with Roth and asked Roth if he had been fired. Roth's answer was, "No. You quit." Bell then informed Roth the reasons he did not cross the picket line, but Roth insisted that Bell had quit. According to Bell, the conversation ended with Bell asking Roth whether his job was still available. When Roth answered in the negative, Bell thanked Roth and hung up. Significantly, Roth did not deny Bell's foregoing testimo- ny. However, after the amended charge in the instant proceeding was filed, which charge included Bell as an alleged discriminatee, Roth did write Bell a letter in which he asked Bell whether the latter had quit or whether he was not working in consequence of the strike; whether Bell had joined the strike and, if he did so, the date on which he joined the strike and, also, whether he had been on strike continuously since he started to strike. Roth requested prompt answers. However, Bell did not reply. Bell testified that during this period he had joined the Navy and was not aware of any communication from Roth. Finally, by letter dated January 28, 1975, another letter was sent to Bell stating that Respondent had not received any reply from the first letter but that they had been advised that it was not Bell's intention to quit employment and that it was his intention to join the strike. The letter went on to state in view of that fact the Respondent's employment records were being corrected to reflect that Bell did not quit but was on strike. The letter further stated that, because Bell had certain employment rights according to law by reason of the fact that he was a striking employee, a check would be sent to him by the Company covering such employment benefits as he would have been entitled to during 1974 as a striking employee. Thereafter, on January 30, 1975, Respondent transmitted to Bell his Christmas bonus check which stated that, in line with the Respondent's recent letter, they were enclosing Bell's bonus check for 1974. Bell denied he ever received this check. However, a perusal of the check and a study of the signature thereon with other copies of Bell's signature persuaded me that Bell did, in fact, receive, endorse, and cash the said check. There has been no further communication between the Respondent and Bell and Bell has not been offered reinstatement. It must be assumed, however, that Bell is still a striking employee, or at least was at the time of the hearing in this proceeding. Accordingly, I find that Bell is still a striking employee and entitled to whatever entitle- Act. Also, the rule proscribes distribution on 'company property' and is unlawful for that reason as well, since it is not limited to the working areas of Respondent's property." 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment any of the striking employees involved in this proceeding will be entitled as hereinafter set forth. Nevertheless, there remains to be determined whether Bell was discharged, and if he was discharged whether he is entitled to any backpay. In view of the knowledge on the part of Foreman Robertson and Supervisor Meyers that Bell intended to join the strike and refused to cross the picket line, and in view of the notification in the Respondent's record by Meyers that Bell had quit, and due to Robertson's statement to Witham to the effect that Bell would be discharged in the event that he did not report for work on September 17, I find and conclude that, although Respondent's record showed that Bell had quit, Bell was actually discharged. This is especially true in view of the fact that, in testifying, Roth admitted that employees who give notification to the Respondent in advance of a time that they will not report to work, and give the reasons therefor, are normally not treated as having quit. Whether Bell was adequately compensated in all respects after having been discharged is left to further proceedings regarding compliance with any order in respect to the instant proceeding. However, as noted above, I find that inasmuch as the Respondent's records have been corrected to show that Bell was on strike and had not quit, I find and conclude that Bell, as noted above, will be treated in a same fashion as any other striker provided Respondent offers him full reinstatement. 2. Floreine Aggers As noted above, Aggers was also employed in the select and pack department. In that department, Aggers worked under the immediate supervision of Ray Leffler, head lehrman. Leffler, as did Robertson, reported directly to Supervisor Andy Meyers, his superior. Aggers was not particularly active in the union organiza- tional campaign. She attended a union meeting on Wednesday night, September 25. At approximately 3 p.m. on September 24, 1974, at the request of Georgene Witham, who asked her to sign a card, Aggers signed an authorization card by placing the card against the window of the laboratory near her work station and in view of other people in the room signed the card. Aggers testified that she "thought" that Stella Millican, another employee, told her at that time immediately after she signed, "You know they seen you sign that card." According to Aggers, the individuals referred to by Millican were Meyers, Leffler, and Irving Bartlett. Aggers further testified that on September 26, the day after she attended the union meeting, Ray Leffler informed the employees, as heretofore noted, that they could not solicit or campaign for the Union and if they did so they would be subject to discharge. Aggers also credibly testified that Leffler repeated this warning on September 27. a3 From portions of the credited testimony of both Aggers and Martin. Roth testified that on that day he had had an argument with Aggers in the presence of Martin, that is Martin was on one side of the lehr and Aggers on the other. Roth asked Aggers, who was looking at the glass lamps that were being processed, how they were going. According to Roth, Aggers replied, "They're not doing worth a damn; they are not making me any money or the Company any money." According to Roth, he then walked away, but after having been working 16 hours a day on production work with which he According to Margaret Martin, a fellow worker of Aggers, Martin saw Witham give Aggers the authorization card to sign on September 24. At the time Meyers, Leffler, and Charles Warran were at the checkers stand about 35 feet from where Aggers was standing near the quality control office. Martin was facing Witham when the latter gave her a card to sign. Martin turned toward the quality control lab, laid the card on her purse, signed it, and handed it back to Witham. Aggers, who was in the same area, signed her card while holding it against the upper portion of the quality control lab glass window. None of the supervisors were inside the lab, but just a moment after Aggers signed the card, Martin told Aggers, "I guess you know Andy saw you sign your card." To which Aggers replied, "It's too late now, I've already signed it." On September 30, 1974, Aggers was working on the shift which began at 3 p.m. and ended at 11 p.m. Approximately 20 minutes before the shift began Margaret Martin sat down in the break area and a few minutes later was joined by Aggers. They went into the canteen for a cup of coffee and returned to the break area. They sat until it was time to go to their respective work stations. After leaving the break area to go to work, Personnel Director Roth came by and they said to him "Hi" as he went around them. Roth said nothing further. It could well be, however, that Aggers, after saying hi, asked how the glassware was running. In any event, whether Aggers made that statement or not, both Aggers and Martin agreed, in testifying that Roth just turned around, looked at Aggers peculiarly and walked off. Thereafter, Aggers continued to work until approximately 3:30 when Leffler told her that Meyers wanted to see her in Meyers' office. Thereupon, Aggers proceeded to Meyers' office where she was told by Meyers that she was discharged because Roth instructed him that Aggers was to be fired for "mouthing off." Aggers accepted dismissal but asked Meyers whether she could have a copy of her termination. She then proceeded to get her purse and other belongings, left the plant, went to the front office where she received her final paycheck and a copy of her termina- tion.37 Additionally, at approximately an hour after Aggers was terminated, Supervisor Meyers engaged employee Martin in a conversation and asked her if she heard the argument between Roth and Aggers. Martin told Meyers that she did not hear an argument at all and that Roth had not even spoken to them. Meyers then stated that Roth had told him to fire Flo, referring to Aggers, and that he hated to do it but had to do so. While there may be some question as to whether the supervisors who were in the area at the time that both Martin and Aggers signed their union authorization cards actually saw the signing by Aggers, I conclude from all of the foregoing testimony, that they did observe Aggers signing something although they may not have known was unfamiliar, he thought about it and became very angry. He thereupon instructed Meyers to discharge Aggers because of her "bad attitude." However, Roth, in testifying, admitted this was the first time in many years that he had discharged anyone for "bad attitude." Under all of the foregoing circumstances and because of the manner in which the testimony was given at the hearing, and upon my observation of the witnesses, I credit Aggers and Martin over Roth's version. 170 BARTLETT-COLLINS COMPANY whether it was a union authorization card by reason of the fact that it was approximately 35 feet from where they were standing to the place where Aggers signed the authoriza- tion card. However, I do make the inference from the foregoing credited testimony of Aggers and Martin that they at least concluded that it was a union authorization card. I base this inference on the fact that, in the first instance, I do not credit Roth's testimony that he had an argument with Aggers and ordered her discharge for having a "bad attitude" by reason thereof. I also base this conclusion on the fact that Roth admitted that it was many years between the last time that anyone was discharged for having a bad attitude and the discharge of Aggers. Moreover, there was no denial by Meyers of the conversation related by Martin between herself and Meyers in which Martin told Meyers that Aggers and Martin had had no conversation with Roth. Finally, the discharge of Aggers occurred only several days after Alvarez announced at the meeting with Respondent's representatives and Mediator Arnold that the Union was actively engaged in organizing the select and pack employees. Thus, Respondent was well aware that active organizing was going on among the select and pack department employees at the time Aggers signed her card. Thus, I find and conclude that by reason of all of the foregoing that Aggers was discharged for having signed the card or, at least, having engaged in union activity. I come to this conclusion, not without some hesitation, by reason of the fact that Martin also signed a card on the same day approximately a few moments before Aggers signed her card. However, from the testimony of Martin, it should be noted that Martin turned her back to the individuals who could have observed her and signed her card by placing it upon her pocketbook, thus hiding her actions. It would seem, therefore, that it cannot be argued that, since the Respondent did not also discharge Martin, the discharge of Aggers must have been for the reasons stated by Roth. However, despite my finding that Aggers was discrimina- torily discharged, the record reveals that Aggers was reinstated and was given some backpay. Nevertheless, inasmuch as the record does not clearly show that she was restored to her same or substantially equivalent position and, moreover, inasmuch as the record is also not clear with regard to whether she was given all the backpay due her, it will be ordered that Aggers be so reinstated and that backpay be determined in the usual manner. 38 3. Charles Wiley Charles Wiley had been an employee of the Respondent for approximately 30 years before his discharge, except for the period from July 1968 to May 1964. He was a senior operator in the "hot end," and, during the negotiations in 1961 when the Ceramic Workers was attempting to negotiate a contract with the Respondent, Wiley was a member of the negotiating committee. In August and September 1974, he participated in the Union's organiza- tional campaign and took part in soliciting employees to 3" In making the finding that Aggers was discriminatorily discharged by Roth, I do not find that Irving Bartlett necessarily saw Aggers sign her card and I credit his testimony to that effect. However, this does not alter the sign union designation cards. On September 15, 1974, he went out on strike with the rest of the employees in the unit represented by the Union and walked the picket line for approximately 6 days each week. There is no question that Wiley was seen walking the picket line during the strike and Vice President Irving Bartlett admitted, in testifying, that he had observed Wiley walking the picket line upon numerous occasions. On October 1, the day before the incident recited hereafter, Wiley and other striking employees heard that employee Cecil Livingston, who had up to that time been on strike and had honored the picket line, had decided to return to work on the following day, October 2. As a result, Wiley, who was not scheduled to perform picket duty on the following morning, nevertheless went to the Respon- dent's premises on the morning of October 2 and joined the pickets along with two other individuals, Linzy Dean and Paul Woods. They picketed at or near the gatehouse of the Respondent's premises through which Cecil Livingston would have to pass if and when he entered the Respon- dent's premises. Shortly after 6 a.m. both Irving and Charley Bartlett, Respondent's officials, noticed the three in front of the gatehouse. At approximately the same time, Cecil Livingston drove up to the parking area near the gatehouse and, after leaving his car with his lunch bucket in his hand, started to cross the street from the parking area to enter the Respondent's premises. What occurred at that time can only be pieced together from the testimony of Charley and Irving Bartlett, Charles Wiley, Cecil Livingston, Lindzy Dean, and Paul Wood. It is apparent that it was Lindzy who first left the group picketing on the sidewalk to approach Livingston, as the latter was commencing toward the gatehouse, in order to persuade Livingston not to enter. Almost immediately thereafter Wiley followed Dean and an altercation oc- curred. In their respective testimony, Wiley accused Livingston of throwing the first punch and attempting to hit Wiley with his lunch bucket. According to Livingston, the first punch was thrown by Wiley which caused Livingston's lunch bucket to fall to the ground whereupon Livingston grabbed Wiley by the shoulder and asked Wiley not to hit him and told Wiley that he had to go to work because he needed the money for an operation. Although, to an extent at least, with some variations, both Dean and Brown supported the testimony of Wiley, and although Irving and Charley Bartlett, in testifying, admitted that they did not see who threw the first punch and who actually commenced the physical altercation, suffice it to say, Livingston was the one who suffered the most damage, having received a broken jaw from a punch thrown by Wiley. However, both the Bartletts testified that they heard, in substance, Livingston begging Wiley to quit punching and telling the latter that he would not fight him; that Livingston could not afford not to work. According to Charley and Irving Bartlett, Wiley answered something to the effect that the Respondent could not do Livingston any "God damn good" in the premises and finally Livingston facts as I find them that Roth discharged Aggers for her union activity inasmuch as I find that at least one of the observers of the signing of the card did conclude that it was a union card which was being signed. 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "Well Charley I won't go to work. I'll go back home." Irving Bartlett also testified that although he could not see who threw the first punch because he had turned around to say to his brother, "Here comes Livingston," when the fight started he went over to where the altercation was taking place and tried to stop Wiley from punching Livingston. He heard Wiley tell Livingston, "You aren't going to work, you son-of-a bitch." Then Irving Bartlett repeated that Wiley told Livingston that the Company would not do him any good and that Livingston was not going to go in there. Irving Bartlett further testified that Livingston told Wiley, "Charley, we've been friends too long. Please, I don't want to fight you. I've got to have an operation, you know. I've got to go to work. Please don't Charley." I find it unnecessary to determine who threw the first punch or which of the two individuals involved attacked the other first. It is true that Livingston was attempting to go to work and cross the picket line, a matter which he had a right to do. It is equally true that Wiley had the right to peacefully attempt to persuade Livingston not to cross the picket line to go to work. However, I credit Charley and Irving Bartlett,3 9 to the extent that Wiley cursed Livingston and threw punches at him whereas Livingston, from all that the Bartletts could observe, did not throw any punches and, in fact, begged Wiley to desist. It is further apparent from the testimony of the Bartletts that Livingston sought to explain to Wiley the necessity for his going to work because he needed an operation. 40 Also, according to the credited testimony of both Irving and Charley Bartlett, as supported to some extent by the testimony of Dean, Irving Bartlett attempted to stop the altercation by grabbing Wiley's coat and asking him to desist. Finally, there is no question from the testimony of any of the witnesses that, when Livingston finally said, "Alright, I'll go home," or words to that effect, Wiley immediately did cease fighting and told Livingston that he had better go home. Shortly after the altercation, or almost as soon as it ended, the police arrested Wiley. Additionally, Irving Bartlett credibly testified, and Wiley's testimony supports the testimony of Irving Bartlett in this respect, that despite the fact that Wiley had been a member of the bargaining committee for the ceramic workers and had, indeed, left the Respondent's employ some time thereafter, when he reapplied for employment he was immediately rehired. This would indicate that, at least so far as Wiley's earlier union activity was concerned, the Respondent had no desire to visit reprisals upon Wiley. Additionally, the Respondent, before the strike involved in the present proceeding commenced, did announce to its employees that they had the right to strike, as noted above, and that, furthermore, they were permitted to picket so long as they did so peacefully. "3 To the extent that I credit a witness only in part I do so upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness testimony." N.LR.B. v. Universal Camera Corporation, 179 F.2d 749 (C.A. 2. 1950). 40 In this respect I do not credit either Wiley, Dean, or Wood to the effect that nothing was said during the altercation. 41 It is with some misgivings that I come to this conclusion for the reason that Wiley had been, apparently, a good employee of the Respondent for a period of 32 years and, from my observation of him on the witness stand, is no longer a young man. However, I am constrained to make my conclusions From the record as presented at the hearing herein, I cannot conclude that Wiley was engaged in protected concerted or union activity for which he was discharged by the Respondent. I conclude that he was discharged because Irving and Charley Bartlett, from what they could observe, and what they heard during the altercation, concluded that Wiley did, indeed, assault Livingston and that his dis- charge was therefore warranted. The Charging Party and the General Counsel both argue that it is difficult to believe that an employee with 32 years' seniority, and an admitted expert in his field of work, was terminated so abruptly for cause because he engaged in a fight. However, I cannot conclude that this was a minor incident. Certainly there is nothing minor about a fight in which one of the parties received a broken jaw. It is certainly understandable that, in the heat of the moment, the Bartletts considered that the only remedy for the situation was to discharge Wiley. Therefore, I find and conclude that Wiley's union activity was not a part of the cause of his discharge and did not enter into consideration by the Bartletts when, moments after the fight, they decided to discharge Wiley. In coming to this conclusion I have considered the fact that Wiley came to the picket line that morning for the explicit purpose of dissuading Livingston from returning to work. While I find, as stated above, that it is not necessary to find that Wiley threw the first punch and started' the physical aspect of the confron- tation, it is well within the realm of probability that when Livingston refused the request of Dean to turn around and go home and not enter the plant, at that point Wiley attempted to physically stop Livingston from returning to work. This is borne out not only by Wiley's avowed purpose of returning to the picket line on that morning in order to dissuade Livingston from entering the plant, but also by the fact that it was Livingston who begged Wiley to stop punching him and explained that he had to go to work in order to pay for a needed operation. From all this, the only conclusion that can be made is that the General Counsel did not prove by a preponderance of the credible evidence that Respondent discharged Wiley discriminatori- ly. I shall therefore order that portion of the complaint which alleges that Respondent discharged Livingston for protected concerted or union activity to be dismissed.41 Additionally, in coming to this conclusion, I have considered the argument advanced by counsel for the General Counsel and for the Respondent that this was a, so-called, mixed motive situation. Counsel for the General Counsel cites a number of cases in which the Board held that even assuming an employee's unprotected conduct was a contributing factor in a decision to discharge him that an employer's knowledge of the dischargee's union activity was also a contributing factor and that, therefore, it is entirely probable that the primary contributing factor or and findings upon the record as presented to me and I would be remiss in my capacity as an adjudicator of the facts to do otherwise. It should also be noted that after the close of the hearing herein the Respondent moved to open the record to enter the conviction judgment of Wiley in the state court for the alleged assault upon Livingston. However, that conviction judgment was amended to show that there was no admission of guilt and that Wiley's plea was equivalent to a plea of nolo contendere. Accordingly, I have not considered this matter in coming to the conclusion which I have made with regard to this discharge. 172 BARTLETT-COLLINS COMPANY at least a contributing factor to the discharge of Wiley in the instant matter was Wiley's union activity and that, therefore, his discharge was discriminatory. For the reasons cited above, one of which was that the discharge Wiley was made immediately upon the end of the altercation, although perhaps somewhat precipitant, and although the Respondent's vice president, Irving Bartlett, did, indeed, accept Livingston's account of the altercation, I find and conclude that the decision to discharge Wiley was made solely on the basis of what Respondent considered was Wiley's unlawful conduct on the picket line and, accord- ingly, I reject the mixed-motive argument advanced by counsel for the General Counsel. F. Discussion and Conclusions I. The bargaining The determination of whether a party to negotiations for collective-bargaining agreement has stepped over the fine line that separates good-faith "hard bargaining" from bad- faith "surface bargaining" is a matter which has troubled both the Board and the courts almost from the inception of the Act. What essentially must be determined is the elusive state of mind of the party accused of failure to bargain in good faith-whether the course of bargaining engaged in by that party is merely a sham to cloak, with an apparent attempt to reach agreement, a determination not to reach such agreement. The various devices utilized by sophisti- cated negotiators to screen a predetermined reservation of mind not to reach agreement have been the chief roadblocks to reaching decisions on issues in situations somewhat parallel to the issues presented in the instant proceeding. However, Board and court precedent do offer some assistance in disposing of these issues. The Supreme Court has long since decided that the bargaining requirements of Section 8(aX5) and 8(d) of the Act do not grant the Board authority to "either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective-bargaining agree- ments." 42 However, although the Board may not sit in judgment upon the terms offered in bargaining, in determining whether negotiations constitute merely "hard bargaining" on the one hand or "surface bargaining" on the other, the Board has considered the totality of an employer's conduct in bargaining to resolve the issue,43 and has included for consideration as part of that totality of conduct not only conduct at and away from the bargaining table 44 but also such substantive proposals as those remaining unresolved at the time of the cessation of bargaining between the parties to the proceeding. 4 5 The courts have also recognized this principal holding that the Board "must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations."46 In adopting these principles in another recent case, the Board stated: 42 N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 404 (1952). 43 "M" Svstems, Inc. Mobile Home Division Mid-States Corporation, 129 NLRB 527, 547 (1960). 14 Ibid. 45 Tomco Communications. Inc., 220 NLRB 636 (1975). 4i N.L.R. B. v. Reed & Prince Manufacturing Company. 205 F.2d 131, 134. Moreover, in many cases, we must look to the whole course or pattern of conduct during negotiations, as opposed to a single act of alleged wrongdoing, in order to determine whether the statutory obligation has been satisfied. And in such cases evidence of the rejection of the bargaining principal is revealed in a course of conduct where, for example, the employer, during renegotiations, manifests an unwillingness to offer anything other than a "radical departure" from the previous contract, or where the employer insists that economic terms not be discussed until accord is reached on all other matters, or where the employer insists on arrogating to itself sole discretion in deter- mining working conditions.4 7 It is in the light of these foregoing legal principles and criteria that the bargaining between the Respondent and the Union herein is considered. At the outset of the bargaining between the Union and the Respondent, at the meeting of July 18, 1974, the Respondent's chief negotiator, Mueller, proposed that all noneconomic issues be resolved before the parties dis- cussed their various economic proposals. Although Alva- rez, acting as chief spokesman for the Union, did not specifically dissent to this proposal, neither did he specifically consent to it. He insisted that a complete agreement must be reached. Furthermore, no specific time was set by either of the parties, either inferentially or by specific agreement, during which the discussion would be confined to only noneconomic issues. Accordingly, I cannot conclude that the Union gave its consent for purposes of bargaining, in the specific context of the negotiations between the parties herein, to forego for whatever time it took to negotiate noneconomic matters, the discussion or introduction of economic matters. Moreover, a review of the bargaining sessions, not only of the first and second sessions, but of all the meetings reveals that upon occasion after occasion and at numerous times during each of the bargaining meetings Alvarez asked to discuss economic matters. Additionally, when certain proposals were made by the Union, both in its original proposal submitted on July 18, and in its second proposal following the Respondent's counterproposal, a number of items were brushed aside by the Respondent's negotiator as being economic and therefore not for discussion, even though these items could be regarded as other than economic. The Board was found, in circumstances similar to those here recited, that the refusal to discuss economic matters constituted in and of itself a violation of the Act and a refusal to bargain.48 Rather than repeat item by item, as completely set forth in the earlier portions of this Decision, the negotiations as they progressed between the parties, it is apparent that on September 26, the seventh meeting between the parties and the first held with a Federal mediator, after the Union had made a number of concessions to the Respondent with See also Herman Sausage Co., Inc., 122 NLRB 168, 170 (1958), enfd. 275 F.2d 299 (1960). 47 Romno Paper Products, Corp., 220 NLRB 519(1975). 4' See The Adrian Daily Telegram, a Division of Thompson Newspapers, Inc., 214 NLRB 1103 (1974); Federal Mogul Corporation, 212 NLRB 950 (1974). 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard to the Respondent's counterclaim in which the Union gave up many of its original proposals, there remained unresolved between the parties the following items: Item I-Management Rights, page 2, section I, of the Respondent's counterproposal. As noted heretofore, this clause gave the Respondent unrestricted unilateral rights, without recourse by the Union or any employee to the grievance procedure, to establish, modify, or change work standards and schedules, including selection, transfer, or reduction of employees, to change the content of existing jobs, to lay off employees, to assign overtime, to determine work content, incentive bonuses, introduce new changed methods, establish new facilities and transfer work from one department to another, contract out work, terminate, liquidate or close all or any part of its operations, select, promote, or transfer employees to positions outside the bargaining unit, to allocate and assign work to employees, to establish quality and quantity standards, determine the number and duration of shifts and reserving all other management rights not specifically enumerated therein. Item 2-Non-discrimination, page 6, section 2, of the Respondent's counterproposal which reads, "Neither the Company nor the Union or its members will discriminate against any employee or applicant for employment because of his membership or nonmembership in the Union or because of his union activity on his nonunion activity." Item 3-Work by Supervisors, which read as follows, "Supervisors shall perform such work as they deem necessary or proper, or as maybe assigned to them." During the entire course of negotiations from the second meeting on, the Union, through Alvarez, its spokesman, insisted on its original proposal that work by supervisors be confined to assisting unit employees in their work in emergencies when necessary or in instructing employees in their work. This, insisted Alvarez, was necessary because otherwise it could affect the work, the jobs, the work hours, and the earnings of the employees if the supervisors were permitted to perform unit work at the complete and sole discretion of the Respondent. Item 4, Violation of the No-Strike Clause, page 13 of the Respondent's counterproposal which reads, "Any individu- al who violates provisions of this article shall be subject to discipline, including discharge, in the sole discretion of the Company and without recourse to the grievance procedure. The Company shall not be obligated to apply the same disciplinary measures to all individuals who violate this article." As noted above, the Union would not accept this item because it gave the Union or any of its members no right to grieve in the event of a discharge for a so-called unlawful strike under this section of the Respondent's counterpro- posal. The sole discretion vested in the Respondent by this clause deprived the Union of the right to grieve on behalf of any of its members who it considered were improperly discharged or disciplined in any matter for an alleged violation of the no-strike clause. Inasmuch as a strike could occur in the event of some emergency situation occurring in the shop such as a situation which could cause 49 Tomco Communications, Inc., 220 NLRB 636 (1975), and cases cited therein. danger to life or limb in which there was no time for the Union to make contact with the Respondent, or, in the event that the employees went out on strike to protest discrimination within the meaning of the Act by Respon- dent visited upon any of the unit members, under this clause and the management rights clause, the Union or its members would have no recourse to prevent discharge or grieve with regard to such discharge. Item 5, Seniority, sections 2, 3, and 8, pages 19, 20, and 22, of the Respondent's counterproposal. Item 6 of reporting pay, page 26 of the Respondent's counterpropos- al. Item 7, Transfer of Company Title, page 30 of the Respondent's counterproposal. Item 8, Union Discipline, page 41 of the Respondent's counterproposal which reads as follows, "The Union shall not fine, discipline or expel any member who is a union member for the purpose, in whole or in part, or requiring the employee to perform his job in manner other than as directed by the Company." Although this proposal regarding union discipline would seem to be tied into the management rights clause in the first instance, so that the Union could not punish or in any manner discipline any of its members for performing his services for the employer in a manner other then that directed by the Respondent, it is equally true that the breadth of this clause reaches into the very heart of the Union's management of its own affairs and, if accepted by the Union, would and could constitute a relinquishing by the Union of its right to discipline its members for violation of intraunion rules and regulations, and, indeed, the Union's own charter, constitution, and bylaws. It is clear, from all of the foregoing and from a reading of the very complicated grievance and arbitration procedures of the Respondent's counterproposal set forth at the outset of this Decision, that the Union's acceptance of the management rights clause, the nondiscrimination clause, the work by supervisors clause, the violations of the no- strike clause and the Union's discipline clause would have constituted the waiver of all of the Union's rights and, in fact, the Union's duty to represent comprehensively and properly as prescribed in the Act to represent its employ- ees. Therefore, it can only be concluded and inferred that the proposal of the these clauses from which the Respon- dent refused adamantly to move in any direction were predictably unacceptable to the Union. To paraphrase what the Board has previously stated, I cannot accept the contention that the Respondent, whose negotiating agent is completely sophisticated and very well schooled in the realities of collective bargaining, in good faith believed that these proposals could or would ever be accepted by the Union.49 Additionally, it was only at this September 26 meeting that the Respondent, after unilateral discussion with Federal Mediator Arnold, gave to the Union its first and only economic proposal. It should be noted in connection therewith that this economic proposal offered to the Union in the form of wages and fringe benefits only what the Respondent had already put into effect and was giving its employees in the unit. 174 BARTLETT-COLLINS COMPANY Although at no time did the Respondent offer to explain its adamant position with regard to its take-it-or-leave-it economic package, and at the very outset of the Union's organizing campaign Respondent requested permission of the Union to give the unit employees, in addition to its other employees, a wage rate increase. Also, almost immediately after the Union's certification as the bargain- ing representative of the Respondent's employees in the unit represented by the Union, the Respondent again requested the consent of the Union to increase its employees' wage rates. Finally, after negotiations were broken off at the end of the eighth meeting in December 1974, the Respondent again, after only a short lapse of time notified the Union of, and requested the Union's consent to, a still further wage rate increase for its employees. Again, in June 1975 another increase was given. At no time, however, although the Union gave its consent to such increases, did the Union in any manner agree that these increases were sufficient or in line with the Union's desired wage rate increases and increases in fringe benefits for the employees whom it represented. Although these wage rate increases are not in themselves indicative of any plan or purpose on the part of the Respondent to destroy the Union's validity in the eyes of the employees whom it represented in the Respondent's employ, when considered in the context of the Respon- dent's one and only economic proposal which was made on a take-it-or-leave-it basis only after unilateral discussion with Mediator Arnold and which constituted no increase whatsoever in the employees' wage rates or fringe benefits, no other conclusion can be inferred but that the wage rate increases were part and parcel of an ongoing attempt by the Respondent and part of the overall conduct of the Respondent aimed at discrediting the Union and nullifying its usefullness and credibility in the eyes and minds of the employees whom the Union represented. Thus, it is inconceivable that the Union, as a collective-bargaining agent of the Respondent's employees, could accept the foregoing Respondent contract proposals, particularly when not only its representation rights to a great extent would be decimated, but the overall improvement in the benefits for its employees are not nonexistent economically and in other respects. Furthermore, the pervasive unfair labor practices hereto- fore found to be violative of the Act, consisting of threats of reprisal, such as discharge and loss of bargaining rights in the event of strike, impression of surveillance, unilateral furnishing of free work gloves to nonstrikers, unlawful overly broad no-solicitation rule and threats of discharge for violation thereof and, finally, discriminatory discharges for engaging in union activity are indicative of an attitude which would be consistent with an intention not to reach an agreement with the Union. True, the Respondent possibly would have entered into an agreement with the Union if the Union had accepted each and every item in the Respondent's counterproposal and the Respondent's economic proposal. But, as stated above, it can be inferred from all of the facts that the Respondent in its awareness of the realities of collective bargaining knew when it made its s Alvarez informed the unit members before the stnke vote was taken that, in his opinion, the Respondent had violated the law. proposals that many of the terms and conditions of its proposals as heretofore recited could not and would not be accepted by the Union. Therefore, by the proposal of these conditions, the Respondent created a situation which was designed to thwart the very requisites of collective bargaining prescribed by Section 8(aX5) and 8(d) of the Act and constituted violations thereof under the guidelines prescribed by Board and court decisions heretofore cited. 2. The status of the strikers The pattern of bargaining which has heretofore been found to have constituted violations of Section 8(aX5) of the Act was commenced at the very outset of the bargaining and the refusal on the part of the Respondent to offer any economic proposal whatsoever at the end of August at the time the strike vote was taken to be made effective as of September 15, 1974, unless the Respondent came forward with an economic proposal and ceased insisting upon preconditions which the Union could not accept in representing the Respondent's employee mem- bers of the Union, were the basis for the strike and the reasons why the employees voted to strike.50 Accordingly, from the very outset of the strike which commenced on September 15, the said strike was an unfair labor practice strike. However, even assuming that the strike began purely as an economic strike, the extensive unfair labor practices engaged in by the Respondent's supervisors and agents commencing after the strike vote and continuing after the strike began constituted such pervasive unfair labor practices as constitutes the basis for finding that the strike was converted into an unfair labor practice strike. Accord- ingly, I find and conclude further that the strikers are unfair labor practice strikers and entitled to reinstatement to their former or equivalent positions upon their uncondi- tional request for such reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of the Respondent, described in section I, above, occurring in connection with the unfair labor practices described in section III, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 175 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By discharging Douglas Bell and Floreine Aggers by reason of their activity on behalf of or their support of the Union, the Respondent has engaged in unlawful conduct within the meaning of Section 8(a)(3) and (1) of the Act. 5. All senior machine operators, press machine opera- tors, press machine helpers, paste machine operators, paste machine helpers, tankmen, tankmen trainees, turnouts, floorboys, production clerks, oilers, repairmen, senior mechanics, mechanics-repairmen, mechanics-welders, ma- chinists, machinist learners, and other employees regularly employed in the forming department (which is also known as the Front End) at the Respondent's Sapulpa, Oklahoma, plant, excluding all other employees including office clerical, other plant production and maintenance employ- ees, moldmakers, professional and technical employees, watchmen, guards, head tankmen and other supervisory employees as defined in the National Labor Relations Act, as amended, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since June 10, 1974, and continuing to date, the Union has been and is now, by virtue of Section 9(a) of the Act, the exclusive representative of all employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. 7. By failing and refusing to bargain in good faith with the Union as the exclusive bargaining representative of its employees in the appropriate unit as set forth above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act.5' 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. It having been found that the Respondent by threats, interrogation, creating the impression of surveillance of its employees' meeting places, giving free work gloves to nonstrikers, and threatening to enforce an overly broad no- solicitation rule has interfered with, restrained, and coerced employees in violation of Section 8(a)(X) of the Act, I shall recommend that the Respondent cease and desist there- from. It having been found that the Respondent discriminato- rily discharged employees Bell and Aggers (although in the case of Aggers, there has been reinstatement to an extent not fully revealed in the record, and in the case of Bell, there is still some doubt as to whether the Respondent has 's Although the complaint alleges an additional violation in Respon- dent's failure to meet at reasonable times. I find no violation in that respect. 52 N.L.R.B. v. Entwisle Manufacturing Company, 120 F.2d 532, 536 (1941). s1 In the event no exceptions are filed as provided by Sec. 102.46 of the offered Bell unconditional reinstatement to his former or equivalent position) it is recommended that the Respon- dent offer both Bell and Aggers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. In addition, I shall recommend that the Respondent make each of them whole for any loss each may have suffered by reason of the discrimination against each by payment to each a sum of money equal to that which each would normally have earned from the date of discharge, less net earnings during said period. Backpay shall be computed with interest on a quarterly basis in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It having been found that the strikers who went out on strike on September 15, 1974, and thereafter, are unfair labor practice strikers, it shall be recommended that the Respondent offer each of them immediate and full reinstatement to their former or substantially equivalent positions upon unconditional application by them for reinstatement, dismissing, if necessary, persons hired on or after September 15, 1974. In this regard, Respondent shall make whole for any resulting loss of earnings any applying striker who is refused reinstatement within 5 days after his unconditional application for reinstatement, the loss of earnings to be computed, as above, on a quarterly basis with interest. It having been found that the Respondent has failed and refused to bargain with the Union in good faith as required by Section 8(a)(1) and Section 8(d) of the Act, the Union is entitled to application of the remedy developed by the Board in Mar-Jac Poultry Company, Inc., 136 NLRB 785, 786-787 (1962), so that the employees in the bargaining unit may enjoy a year of good-faith bargaining and not be deprived of the services of the Union as their collective- bargaining agent by technical expiration of the initial year of certification which began on June 10, 1974. In view of the nature of the unfair labor practices herein found, including pervasive interference, coercion, restraint, and discrimination, which goes to the very heart of the Act,52 there exists the danger of commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I shall recommend that Respondent be directed to cease and desist from in any other manner infringing upon the rights guaranteed in Section 7 of the Act. On the basis of the foregoing findings of fact and the conclusions of law and upon the entire record, and pursuant to Section 10(b) of the Act, I hereby issue the following recommended: ORDER53 The Respondent, Bartlett-Collins Company, Sapulpa, Oklahoma, its officers, agents, successors, and assigns, shall: Rules and Regulations of the National Labor Relations Board, and 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. 176 BARTLETT-COLLINS COMPANY 1. Cease and desist from: (a) Coercively interrogating employees concerning their union sympathies and activities, threatening employees with discharge and loss of pension rights in the event such employees support a union-called strike, creating the impression of surveillance upon employees union activities and meetings, threatening employees with discharge for conducting union solicitation in enforcing a no-solicitation rule too broad in scope, and unilaterally furnishing employees who did not strike or who replaced strikers with free work gloves while refusing to furnish work gloves to unit employees. (b) Discouraging membership in American Flint Glass Workers, Union of North America, AFL-CIO, and its Local No. 716, or any other labor organization, by discharging any employee for engaging in union or other protected concerted activity or discriminating against employees in any other manner in regard to their hire, and tenure of employment, or any terms of condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to form, join, assist or be represented by American Flint Glass Workers Union of North America, AFL-CIO, and its Local No. 716, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining, or other mutual aid or protection or to refrain from any or all such activity, except that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized under Section 8(a)(3) of the Act. (d) Refusing to bargain collectively with American Flint Glass Workers Union of North America, AFL-CIO, or any of its subsidiary unions including Local No. 716 designated by the said International to bargain as the exclusive representative of the Respondent's employees in the following appropriate unit: All senior machine operators, press machine operators, press machine helpers, paste machine operators, paste machine helpers, tankmen, tankmen trainees, turnouts, floorboys, production clerks, oilers, repairmen, senior machinists, mechanics-repairmen, mechanics-welders, machinist, machinist learners, and other employees regularly employed in the forming department (which is also known as the Front End) at the Respondent's Sapula, Oklahoma, plant, excluding all other employees including office clerical, other plant production and maintenance employees, moldmakers, professional and technical employees, watchmen, guards, head tankmen and other supervisory employees as defined in the National Labor Relations Act, as amended. (e) Refusing to bargain with the aforesaid Union as the bargaining representative of the aforesaid unit of employ- ees by furnishing work gloves to nonstrikers and striker replacements while refusing to supply work gloves to the aforesaid unit employees. 54 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Douglas Bell and Floreine Aggers to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges enjoyed, and make each whole for any loss of earnings each may have suffered by reason of the discrimination against each in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer full reinstatement to all strikers of the unit described above who went out on strike on September 15, 1974, and all other individuals from other departments of the Respondent's plant who went out on strike at any time since then in support of the said strike, within 5 days after said strikers make unconditional offers to return to work, and make each striker whole for any failure to reinstate for any loss suffered by said strikers by the Respondent's failure to reinstate the said strikers within the time limited for such reinstatement in the manner set forth in the portion of this Decision entitled "The Remedy." (c) Preserve and, upon request, and make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and reports, and all other reports necessary to analyze the amount of backpay due under this Order. (d) Upon request, bargain collectively with the American Flint Glass Workers Union of North America, AFL-CIO, or any representative of the said labor organization, including Local No. 716, as the exclusive bargaining representative of the Respondent's employees in the unit found appropriate above, with respect to rates of pay, wages, hours of employment and other terms and condi- tions of employment, and, if understandings are reached with the aforesaid Union, embody such understanding in a signed agreement with the said American Flint Glass Workers Union of North America, AFL-CIO. (e) Post at its plant at Sapulpa, Oklahoma, at places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A." 54 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said materials are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the certification year of the aforesaid Union, is hereby extended for a period of I year from the date upon which the Respondent begins to bargain collectively in good faith with the aforesaid Union. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 177