Hickinbotham Bros., Ltd.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hickinbotham Bros. Ltd. and General Teamsters Local No. 439, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 32- CA-2438 January 13, 1981 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 17, 1980, Administrative Law Judge Earldean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, the Gener- al Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to the Gen- eral Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I In adopting the findings herein, Member Jenkins does not rely on Times-Herald. Inc., 249 NLRB 13 (1980), cited in the Administrative Law Judge's Decision in par. 4 of the section entitled "Conclusions," in which he concurred. The General Counsel has implicitly excepted to certain credibility find- ings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect 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 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing her findings. DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was tried before me in Stockton, California, on May 29, and 30, 1980. The original charge was filed by General Teamsters Local No 439, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, herein called the Union, and served on Hickinbotham Bros., Ltd., herein called Respondent, the Company, or the Employer, on January 28, 1980. The first amended charge was filed by the 254 NLRB No. 22 Union and served on Respondent on March 6, 1980. A complaint issued on March 11, 1980. An amended com- plaint, which issued on May 14, 1980, alleges that Re- spondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act. The principal issues herein are whether by certain bar- gaining proposals Respondent refused to bargain in good faith with the Union, and whether such conduct pro- longed a strike by Respondent's employees. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT I. COMMERCE Respondent, a California corporation with an office and place of business in Stockton, California, is engaged in the manufacture of various fabricated steel products. In the course and conduct of its business operations during the 12-month period preceding the issuance of the complaint herein, Respondent sold and shipped goods and services valued in excess of $50,000 directly to cus- tomers located outside the State of California, and pur- chased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of California. The complaint alleges, Respondent admits, and I find that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. I.ABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Negotiations and Related Events Respondent has plants in Stockton, Fresno, Sacramen- to, and Santa Rosa and a small branch in Modesto. The employees in the Stockton, Fresno, and Sacramento plants are represented by various locals of the Teamsters Union. The plant involved herein is the Stockton plant. Respondent and the Union have been parties to succes- sive collective-bargaining agreements for 20 or 25 years covering a unit of machine operators, machine operators helpers, shipping and receiving clerks, warehouse per- sons, truckdrivers, and utility persons at the Stockton plant. The last such agreement expired on September 30, 1979.1 The first session of the current negotiation was held on September 10. Union Business Representative R. B. Trammell was chief spokesman for the Union and Lee Brewer labor consultant, and Donald Hickinbotham, Re- spondent's vice president, were chief spokesman for Re- spondent. All dates herein will be in 1979 unless otherwise indicated. 96 HICKINBOTHAM BROS. LTD. At this meeting, the Union submitted its proposal, which sought to modify the existing agreement in several respects of significance herein: 1. To change the "Seniority and Layoff' clause from one requiring layoff by seniority only if the Employer determines ability and efficiency to be relatively equal to one requiring layoff by seniority; and to delete the sen- tence reading, " In an arbitration, the arbitrator shall not substitute his judgment for that of the Employer"; and to change from a provision requiring 90 consecutive days of unemployment/failure to report for work within 36 hours after a recall notification to break seniority to one requiring 6 months and 72 hours, respectively. 2. To change the "Job Bidding" clause to delete the exclusion from bidding of employees with less than I year of seniority and of those who have successfully bid on a job within the preceding 12 months and further to delete the provision that "any bidder who is awarded a job but fails to qualify during his trial period shall be deemed a successful bidder." 3. To increase Respondent's pensions contribution by 14 cents per hour per year for the term of the agreement. 4. To delete the no-strike, no-lockout clause. 5. To change the grievance procedure from one where, in the event informal resolutions were not achieved, an adjustment board (apparently ad hoc) will be convened and if no majority resolution were achieved by the adjustment board, then the matter could be taken to arbitration to one requiring that matters not informally resolved would be submitted to an arbitration board (ap- parently permanent for the life of the agreement) and, if no majority resolution is achieved, then a fifth neutral ar- bitrator would be called in. 2 6. To add to the union-security clause a provision re- quiring Respondent to give the Union notification of new hires within 5 days. 7. To grant a wage increase of $1 per hour per year for the term of the agreement; to establish an "open end" cost-of-living allowance; to increase the wage differential between certain classifications; and add a new provision that "no member will suffer a reduction in pay through the signing of this Agreement." The Union's proposals were noted under "Terms of Agreement," subject to negotiations, and under wages that it will later submit proposed modifications as to job classifications, and ended with the following statement: The Union reserves the right to make any additions, amendments, corrections or deletions to the forego- ing proposals during the course of negotiations as it may deem necessary. At this first negotiation session the Union explained its proposal item by item. Brewer's response was directed primarily at the pension plan. The existing agreement provided for contributions to the Western Conference of Teamsters Pension Fund. Brewer questioned the financial status of the fund and requested certain documents relat- ed thereto. It was agreed that all agreements on individ- 2 Both the adjustment board and the arbitration board were to be con- stituted of two members appointed by the Union and two members ap- pointed by Respondent. ual provisions would be tentative until an entire collec- tive-bargaining agreement was reached and that there would be no agreement unless agreement was reached on all provisions. A second meeting was scheduled for Oc- tober 4. On October 4, Respondent submitted its proposal for a 3-year agreement.s Items of significance herein included: 1. The seniority and layoff clause was the same as the recently expired agreement except the probationary period was increased from 30 to 45 days. 2. The "Job Bidding" clause was the same as the re- cently expired agreement except (a) the word "sole" was inserted before "judgment" in that portion providing, "If in the judgment of the Employer, the qualification[s] and dependability of the bidders and applicants are relatively equal [seniority will prevail]"; and (b) the only exclusion from eligibility for job bidding read, "no employee[s] shall be eligible to bid until they have attained regular status [in] their current classification. 4 However, the Em- ployer may move or promote employees as necessary without regard to this exception." 3. Substitution of the pension and savings and health and welfare plan then in effect at other of Respondent's facilities for the Western Conference of Teamsters plan was provided for in the recently expired agreement. 4. Added was a provision that the Union will be joint- ly responsible for any actions of the job steward beyond those set forth in the agreement (the investigation and presentation of grievances, and the transmission of mes- sages and information authorized by the Union which do not involve work stoppages or other interference with Respondent's business). 5. There was substitution of a provision leaving union membership to the discretion of the individual employee for the one in the recently expired agreement requiring union membership after 31 days of employment. 6. There was a provision for a grievance committee of the same size and to be chosen in the same manner as the arbitration board of the old agreement, but, in the event the grievance was not resolved by the committee, the matter would be referred to an impartial arbitrator; whereas in the old agreement the four members of the arbitration board selected a fifth member and resolution required a decision by a majority of the five. 7. A subsection was added to the grievance's section limiting the authority of the arbitrator, which reads: H. Arbitrator's Authority: The Arbitrator shall be empowered except as his powers are limited below or by the submission agreement, only to make a de- cision in cases of alleged violation of rights express- ly accorded by the Agreement, or written supple- ments thereto, if any. The limitation of the power and discretion of the Arbitrator shall be as follows: 3 The expiration date was September 30. 1982. The beginning date was left blank. 4 The meaning of this phrase is unclear. Apparently it was intended as a compromise since the Union had proposed deleting all exclusions. 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. He shall have no power to add to, or substract from or modify any of the provisions of this, or supplemental agreements, if any. 2. He shall have no power to establish wage scales or change any existing wage rates except in the case of new classification. 3. He shall have no power to substitute his dis- cretion for that of the Employer or the Union where either party has expressed retained discretion or is given discretion by the specific terms of this Agreement; except that where he finds a disciplin- ary layoff or discharge results from a manifestly ar- bitrary exercise he may make appropriate modifica- tions consistent with the terms of this Agreement. 4. He shall have no power to decide any ques- tion, which, under this Agreement, is within the right of the Employer or the Union to decide. In rendering decisions, the Arbitrator shall have due regard for the responsibilities and the reserved rights of the parties and shall so construe this Agreement so that there will be no interference with the exercise of such rights and responsibilities, except as those rights are expressly conditioned or limited by specific terms of this Agreement. 5. All awards of back wages shall be limited to the amount of wages the employee would otherwise have earned from his employment with the Em- ployer less any unemployment or other compensa- tion f6r work. The proposal also provided for an expedited arbitra- tion procedure (a hearing within 24 hours and bench de- cision or, if arbitrator desires, a decision no later than 24 hours following a hearing) where it is alleged that there is a sympathy strike or slowdown in violation of the no- strike clause. Respondent's proposal also added a management-rights clause which reads:5 Section XVIII. Management Rights This Agreement is not intended to interfere with, bridge, or limit the right of the Company to manage its business and direct its employees in their em- ployment. The Company reserves and retains the sole and exclusive right to; the management of the business and the direction of the working forces, including but not limited to the right to plan and direct oper- ations, schedule hours of work, subcontract any or all work to outside firms whether on or off the premises, control volume of production; to add or drop product lines; to establish or continue policies, practices, or procedures; for the conduct of the business; and from time to time to change or abolish such policies, practices, or procedures; to determine the number, location or relocation, method and types of its operation of plants or to discontinue their performance by employees of the Company; to hire, suspend, layoff, discharge for proper cause, s This is the management-rights clause which is contained in the col- lective-bargaining agreements covering the Fresno and Sacramento plants. transfer or release from duty because of lack of work on other legitimate reasons; to study or intro- duce new approved production methods or facilities to establish or maintain rules and regulations cover- ing employees and retain all of the rights not spe- cifically limited by this Agreement that are custom- arily considered management functions. The no-strike, no-lockout clause was changed from one which merely provided that "during the term of this Agreement there shall be no strike by the union or lock- out by the Employer" to one which reads: Section XII. No Strike-No Lockout 1. During the period of the Agreement there shall be no strikes, work stoppages, slowdowns, picketing or other interference with the operations of the Company. 2. There shall be no lockouts during the term of this Agreement. Temporary shutdowns for econom- ic reasons shall not be considered lockouts. 3. No officer or representative of the Union shall authorize, instigate, aid or condone any strikes, and no employee shall participate in any such strikes, work stoppages, slowdowns, picketing or similar in- terference during the time of this Agreement. The Union must use every possible means to prevent its members from engaging in such activities. At the October 4 meeting, Brewer, who had died in the interval, was replaced by Walter Plumb as Respon- dent's cospokesman. Both the Union's and Respondent's proposals were discussed item by item at the October 4 and 5 meetings, as to the right of Respondent to deter- mine relative ability and efficiency and that seniority be considered only when ability and efficiency are equal. Hickinbotham said Respondent had taken a 15-week strike in 1964 to preserve that right and felt very strong- ly that it would not relinquish it. According to Hickinbotham, the rationale behind its open-shop proposal arose out of an incident during the previous year when Respondent required certain lead employees who were in the bargaining unit to discipline an employee for reporting to work late or intoxicated. The Union took the position that, if its members exer- cised this responsibility, they would be subject to fines. Hickinbotham took the position that these employees were not supervisors but were essentially workmen who were properly included in the unit. He explained that the open-shop proposal was intended to give an individual the opportunity to not belong to the Union and to thus avoid the possibility of being fined. Although some agreement had been reached and and a number of issues remained unresolved at the end of the October 5 session, it was apparent that the principal issues were seniority and layoff, job bidding, and a pen- sion plan. These have remained the principal issues throughout negotiations along with job classifications, which became a major issue on October 12 when Re- spondent made its economic proposal. According to Trammell, the Company's proposal could start an em- 98 HICKINBOTHAM BROS. LTD. ployee at the bottom of the classification and it would take several years, or never, to draw top pay. At the October 12 negotiation session, Hickinbotham explained in some detail why Respondent proposed changing to its own pension plan. He stated that the ac- tuarial report of the Teamsters pension plan revealed many shortcomings. He showed the report to the Union and Respondent analyzed it in some detail. The Hickin- botham plan has been in effect for a number of years for certain of Respondent's employees. Hickinbotham said that, although Respondent's plan was a few cents cheaper as to contributions, it was actually sounder than the Teamsters plan and the benefits were fairer since contributions were determined by gross earnings and the benefits varied according to earnings. Further, Respon- dent's plan includes a profit-sharing plan. Hickinbotham stated that for several years employees have disagreed as to the desired allocation of available fringe benefit dollars, some wanting more allocated to pensions and others wanting it allocated to wages. Thus, Hickinbotham said, Respondent felt that an equitable so- lution would be the additional benefit of a profit-sharing plan whereby an employee could chose whether he wanted to contribute to such a plan with his contribution being matched by Respondent. Hickinbotham said he felt that there would be better unity during future negotia- tions if an employee could make his own determination as to how much went into the fund. Respondent submitted its economic package on Octo- ber 12. Hickinbotham and Plumb gave comparisons of Respondent's proposal with the wage scale of its major competitors and stated that Respondent's wage scales was comparable to or substantially ahead of those of its competitors. This session lasted from about 10 a.m. on October 12 to 1:30 a.m. on October 13 in an effort to conclude an agreement. Respondent made several signifi- cant concessions. Trammell reviewed the Union's position, stating that seniority, job bidding, pension plan, and job classification were items on which there would have to be some movement before a contract could be concluded. At the conclusion of the meeting, Trammell said that the con- tract was totally unacceptable, that he could not recom- mend it to the membership, and that there probably would be a strike. Respondent promised to provide later in the day a written proposal reflecting the agreements reached that day and constituting Respondent's "best offer." Respondent's October 13 proposal differed from its October 4 proposal in that it provided for a term retro- active to October 1, contained a provision requiring membership in the Union after 31 days with 5 days noti- fication to the Union of new hires, reduced the proba- tionary period from 45 to 20 days, increased from 90 to 180 the number of consecutive days of unemployment re- quired to break seniority, changed the exclusion for eligi- bility to bid on jobs from "no employee shall be eligible to bid until they have attained regular status in their cur- rent classification" to "no employee shall be eligible to bid until they have attained regular status [apparently this means completed the probationary period] and have completed forty-five (45) working days in their current classification." The grievance procedure was worded differently but substantively is about the same. The limitation of the au- thority of the arbitrator was changed to read: D. The arbitrator has no authority to modify, de- tract from or alter the provisions of this contract, nor to substitute his discretion for managements' de- cisions. This shall not, however, prevent the arbitra- tor from determining whether or not the Employer has justifiable cause for any discharge or disciplin- ary action which may be protested under this sec- tion. The expedited arbitration clause was dropped. Respondent's October 13 proposal also contained in the no-strike, no-lockout clause, the following protec- tion-of-rights clause which had earlier been proposed by the Union: 3. It shall not be a violation of this Agreement, and it shall not be cause for discharge or disciplin- ary action in the event any employee refuses to enter upon any real property involved in a lawful primary labor dispute, or refuses to go through or work behind any lawful primary picket line of the Union party of this Agreement, and including pri- mary picket lines at the Employer's place of busi- ness, approved by Local No. 439 and Joint Council of Teamsters No. 38. Respondent's-management rights proposal was changed to read: Section XIII-Management Rights The Employer retains the exclusive right to manage the business, direct, control, and schedule its operation and work force and to make any and all decisions affecting the business, whether r not specifically mentioned herein and whether or not heretofore, exercised, and in all respects carry out the ordinary and customary functions of manage- ment, except as specifically altered or modified by the express terms of this Agreement. Also, the following new provision was added: Section XIV-Rate Adjustment Where new types of equipment and/or operations for which rates of pay are not established by this Agreement are put into use during the life of this Agreement, rates governing such operations shall be the subject of negotiations between the parties. Rates agreed upon will be effective as of the date of such new equipment or operations are put into use. The proposed wage increase ranged at the top of each classification from 45 to 54 cents an hour, except that the utility person rate was substantially lower than in the re- cently expired agreement. However, the proposal con- tained a new provision which reads: "No member shall 99 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffer a reduction in pay as a result of the signing of this Agreement." A new provision, initially proposed by the Union, was included which provides that "non-bargain- ing unit supervisors may perform bargaining unit work only in emergency or training situations." On October 14, the union membership rejected Re- spondent's "best" offer. Although Trammell recommend- ed against it, the membership also voted to strike. The strike commenced on October 14 or 15. All of the ap- proximately 63 unit employees went out on strike. Short- ly thereafter, Respondent resumed operations. About 2 weeks after the strike commenced, Respondent began hiring replacements. By November 14, 6 strikers had re- turned to work and 26 replacements had been hired. As of this time, by using management and supervisory per- sonnel and the reduced complement of employees, and with subcontracting, Respondent had achieved almost full production. The first negotiation session after the strike com- menced was on October 16. The Union's position changed somewhat as to job bidding and wages. Princi- pally, the change was that training for an upgraded job would be by seniority and that the wage increase would be 70 cents the first year and 50 cents for each of the seoond and third years and a 12-cent cap on cost of living. No agreement was reached and the principal issues remained the same. Both the Union and Respon- dent agreed that they reached an impasse at this meeting. The next meeting was October 29. The meeting was con- ducted by a Federal mediator. The Union altered its po- sition somewhat but no agreement was reached. The next meeting was on November 14. Respondent submitted a new proposal. In this proposal Respondent reverted to its original proposal that the matter of union membership shall be left to the sole and unfettered choice of each individual employee. The term of the agreement was changed from 3 years to 1 year. The 5- day notification to the Union of new hires was deleted. Also deleted was the provision that no employee would suffer a reduction in wages. Also the provision permit- ting supervisors to perform bargaining unit work was changed from one restricting such work only in emer- gency and training situations to one without restrictions. Respondent's seniority and layoff proposal increased the probationary period to 60 days and reduced back to 90 days the number of consecutive days of unemploy- ment required to break seniority. Also included were the sympathy strike expedited arbitration procedure and the limitation on the arbitrator's authority provisions which were the same as those contained in Respondent's Octo- ber 4 proposal but dropped from its October 13 proposal. The provision regarding the employees' right to honor primary picket lines was also dropped as was the rate-of- adjustment provision. Respondent also returned to its October 4 management-rights proposal. According to Hickinbotham, the management-rights clause merely spells out the rights traditionally exercised by Respondent. However, also according to Hickin- botham, the Union had been giving Respondent some difficulty in this regard, one of Trammell's frequent statements being, "if you don't see it you ain't got it." It was therefore important to Respondent that these rights be spelled out. Respondent was particularly concerned about subcontracting. 6 It had always subcontracted fre- quently but had primarily done so when machinery was required with a capacity significantly different from that of Respondent's. However, during the strike, additional work was subcontracted and Respondent found that some of its preproduction and production processes could be done cheaper by subcontractors. Another reason Respondent was interested in a de- tailed management-rights clause was that it wanted the freedom to institute certain changes. In August, Respon- dent employed a team of consultants to help Respondent streamline its operations in the management of material flow, operations, sequencing, and paper flow. In Novem- ber, the consultants made various recommendations which included the alteration of work flow, operational production matters, paper flow, and operations schedul- ing. Respondent was concerned with its ability to imple- ment these recommendations as to altering jobs and de- veloping new jobs since its freedom to do so had been challenged by the Union in the past. As to the open-shop clause, some of the replacements had begun to express their desire that they not be required to join the Union. However, Respondent's representative did state during the negotiations that it was willing to accept something closer to a maintenance-of-membership clause. As to the I-year term, this was intended to dispose of the cost-of- living increase issue. On November 19, the Union submitted a proposal in which it agreed to the Employer's October 13 proposal in its entirety with two exceptions. The Union continued to propose the Teamsters pension plan but reduced the increase in the Employer's contribution from 14 to 7 cents; and a revised wage proposal was to be submitted through the Federal mediator. Respondent continued to adhere to its November 14 proposal. There was no substantial progress made at this meeting as to the major items separating the parties. They did discuss whether, if the strikers were to return to work and agreement were reached, allegations of misconduct would be dropped. Plumb said he was concerned about the replacements and that Respondent would not remove them in favor of returning strikers; thus the strikers would be placed on a preferential hiring list, even if they concluded a contract. Around December 3, according to Hickinbotham and Plumb, the two of them discussed with Respondent's president, Ralph Hickinbotham, their concern that, even though the management-rights proposal would reserve to Respondent certain needed prerogatives, they still needed to have imput from employees as to the effect of changes in its operations. Consequently, they decided that in addition to the grievance procedure they should institute a complaint procedure whereby employees could grieve as to actions taken by Respondent on mat- ters reserved to it by the management-rights clause. I The management-rights clause proposal reserved to Respondent the right to subcontract any or all work. 100 HICKINBOTHAM BROS. LTD. On December 5, Plumb presented the following pro- posal to the Union as an addition to: "SECTION X- GRIEVANCES" 7 of its November 14 proposal: Section X-Resolution of Disputes Employee Complaints or disputes will be settled under the provisions of (1) the Company Complaint procedure set forth herein, or where the employee and the Supervisor determine in step 1. that the dis- pute is one of interpretation or application of specif- ic provisions of the Collective Bargaining Agree- ment, then the matter may be submitted under the Grievance and Arbitration procedure set forth herein as (2) GRIEVANCES AND ARBITRA- TION. Complaint Procedure STEP 1: When an individual has a problem with his job, dispute with his supervisor or a co-worker, or a problem with interpretation or application of Company policy, the complainant should first dis- cuss the matter with his supervisor as soon as possi- ble after the problem arises. STEP 2: If the complainant cannot obtain imme- diate satisfaction from his supervisor, he should, as soon as possible, review the matter with his supervi- sor's immediate superior. The complainant may expect a thorough review of the complaint and written justification of the action being taken con- cerning the complaint may be requested. STEP 3: If the complainant is not satisfied with the decision or the actions taken by the supervisor's superior, he/she may take the matter directly to the Personnel Department. The Personnel Department may be reached by telephone at the Stockton office. This action must be taken within five working days of the incident causing the complaint or the Person- nel Department may interpret the complaint as non- current, and therefore, not applicable to this com- plaint procedure. A member of the Personnel De- partment or an individual representing the Person- nel Department will meet with the complainant within five working days of receiving the com- plaint. The Personnel Department will explain Company policy concerning the complaint and pre- vious decisions concerning the policies involved in the complaint. Complainant must request the Per- sonnel representative to assist him in reducing the complaint in written form if he/she wants to pro- ceed any further with the complaint procedure. In addition, the complainant must state the desired remedy he/she seeks. STEP 4: The Personnel Department or its repre- sentative will, within the next five days, form a committee of three consisting of a Personnel De- partment representative, the Manager responsible for the profits of the division in which the com- plainant works and a co-worker of the complainant. The co-worker of the complainant shall be the This section contains the grievance procedure and the arbitration procedure. mutual choice of the other two committee members and shall be of appproximately the same salary grade and position of the complainant. The co- worker should have substantial knowledge of the complainant's duties, job requirements and working conditions and shall not be the complainant's imme- diate supervisor. The committee shall review the written complaint which was produced by the Per- sonnel Department representative, listen to testimo- ny of the complainant and any other individual in- volved in the complaint and review of the condi- tions surrounding the complaint. The committee shall come to a unanimous deci- sion as to the proper solution to the complaint. The responsibility of the Personnel Department repre- sentative is to insure that the resolution of the com- plaint is in keeping with Company policy and con- sistent with the resolution of other complaints simi- lar to the one being reviewed. The responsibility of the Manager is to see that the complaint is solved with the best interests of the Company in mind. The responsibility of the co-worker of the complainant is to make sure that the decision is a fair one consider- ing the working conditions and safety of the com- plainant. Also, the co-worker should consider the application of the decision to the individual as the individual relates to all people in similar positions and circumstances. This unanimous decision will be rendered in written form within five working days of having received the complaint from the Person- nel Department. Copies of the decision will be placed in the Personnel record of the complainant and also given to the complainant. STEP 5: In the event that the committee cannot reach a unanimous decision, the viewpoints of each individual will be documented. The documentation will show which individual is in disagreement with the other two and which specific policy or policy interpretation the individual is in disagreement or unclear about. This report will be immediately sub- mitted to one or more of the corporate officers re- sponsible for making, changing or deviating from Company policy. The corporate officers reviewing the case will meet with the committee, the com- plainant and anyone else that the officer feels neces- sary to consult. Within five working days of having received the complaint, the corporate officer will make a written decision concerning the complaint which will be final. Copies of the decision will be distributed as fol- lows: 1. The first copy will be a permanent part of the Personnel Department's policy interpretation file. 2. The second copy will be a permanent part of the Manager's Personnel record. 3. The third copy will become a permanent part of the co-workers' Personnel record. 4. The fourth copy will become a permanent part of the complainant's Personnel record. 101 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The fifth copy will be given to the com- plainant. Plumb testified that he gave a copy of the proposal to each member of the union negotiating committee and said it was an additional procedure intended hopefully to address some of the anticipated problems with employees in dealing with the rights reserved to management in Re- spondent's management-rights proposal, and that it ad- dressed areas excluded from the grievance and arbitra- tion procedure. Hickinbotham and Plumb testified that Trammell read through at least a portion of the proposal, tore it up, threw it on the floor, and said there was no way the Union would ever accept this and in vulgar lan- guage indicated what Respondent could do with the pro- posal. Union President Ace Hatten said the Union would not consider the proposal. Trammell admits that he threw the proposal on the floor and said there was no way the Union would ever accept it. He does not deny the statement attributed to Hatten. Hatten did not testify. Hickinbotham testified that Plumb did not review the contents and purpose of the proposal before physically handing it to the union negotiators. According to him, Plumb said Respondent would like to have the proposal taken under consider- ation so that it could be discussed. They then sat quietly by while the union committee was reading. Trammell admits that there was some discussion of the proposal as he read it, however, he did not testify as to what the dis- cussion was, and, given his generally poor memory as to what was said during negotiations, I strongly suspect he does not recall what, if anything, was said. Hickinbotham testified that he drafted the complaint procedure proposal and that it was not intended to ex- clude the Union. According to Hickinbotham and Plumb, Trammell's response left them no opportunity to explain the proposal. The question of whether the Union was excluded was never raised. Hickinbotham testified that, historically, the Union had discussed informally with Respondent various complaints of employees with- out any issue as to whether the complaint was a grieva- ble one, and it was never Respondent's intent to exclude the Union from doing so.8 After a caucus, the Union proposed a 7-cent increase in pension contributions and wage increases of 60 cents the first year and 50 cents in each of the second and third years. No agreement was reached. The next negotiation session was on December 13. Plumb said Respondent's November 14 and December 5 proposals were still on the table. Trammell said the Union would accept Respondent's October 13 proposal with a couple of modifications as to wages and classifica- tions. According to Trammell, he thinks there was some mention of a modification in pension plan, but he does not recall exactly what it was. Plumb rejected the Union's proposal in its entirety, stating that Respondent had another proposal on the table. s This meeting was conducted by the mediator as was all of the negoti- ating meetings after October 16. During the course of any meeting, there were some joint sessions, some caucuses, and each side would at limes meet separately with the mediator. Plumb proposed substituting a full-day holiday on Christmas Eve instead of the half-day holidays on New Year's Eve and Christmas Eve and that employees would work a full day on New Year's Eve. According to Plumb, the rationale given by him was that it was also inventory time and Respondent wanted employees to work New Year's Eve as was done at the Sacramento plant. After a caucus, the Union said they would agree in return for a concession in some other area. Plumb does not recall what the specific concession was. Plumb's response was that this was a critical area to Respondent because of the inventory problem and that they would be at impasse over this issue. They went into separate caucuses. Thereafter the me- diator came to Respondent's caucus and said the Union had agreed that they were at an impasse. The mediator said they were obviously at total odds and there was no purpose in meeting further. He said that any future meet- ings would be scheduled only upon request. Plumb said that Respondent was willing to meet at any time. There have been no further negotiating meetings. B. Conclusions The complaint alleges that, by making certain propos- als on and after November 14, Respondent failed and re- fused to bargain in good faith with the Union. As to the allegation that Respondent has violated Section 8(a)(5) of the Act by making regressive bargaining proposals, Re- spondent and the Union agreed at the first negotiating session that agreement on individual provisions were not binding until agreement had been reached on a collec- tive-bargaining agreement as a whole. In fact, the Union's initial proposal specifically reserves to it the right to make any additions, amendments, corrections, or deletions to its proposals during the course of negotia- tions as it may deem necessary. Here, Respondent had made a number of concessions on October 12 and 13 in order to avoid a strike. It was unsuccessful in this regard and a strike commenced. Nev- ertheless, these prestrike proposals remained outstanding for a month after the strike commenced. By November 14, it was apparent to Respondent that it could weather the strike. With this realization of its economic strength, it dropped some of the proposals it had made in an effort to avoid a strike. It is not illegal for an employer who has weathered a strike to capitalize upon its new found strength to secure contract terms it desires. O'Malley Lumber Company, 234 NLRB 1171 (1978); World Pub- lishing Company, 220 NLRB 1065 (1975). A strike is a two-edged sword. Depending upon how it affects the employer's operations, the strikers may gain concessions or they may lose concessions previously obtained. Here, in addition to the flexing of its economic muscle, Respondent had specific reasons for its reversion to an earlier proposal, some of which are directly attributable to circumstances changed by the strike such as the re- placement's expressed desire not to have to join a union and the savings realized by subcontracting certain pro- cesses which had never been subcontracted before. Other reasons were the same as those advanced when the pro- visions were intitially proposed. It is immaterial whether 102 HICKINBOTHAM BROS. LTD. the Union, the General Counsel, or I find these reasons totally persuasive. What is important, and I so find, is that these reasons are not so illogical as to warrant an inference that by reverting to these proposals Respon- dent has evinced an intent not to reach agreement and to produce a stalemate in order to frustrate bargaining. In the circumstances herein, I find that Respondent did not violate Section 8(a)(5) and (1) of the Act by making regressive bargaining proposals concerning management rights, sympathy striker protection, union security, and notification to the Union of new hires. Times-Herald, Inc., 249 NLRB 13 (1980); Olin Corporation, 248 NLRB 1137 (1980); O'Malley Lumber Company, supra; World Publishing Company, supra. The complaint also alleges that the management-rights clause proposed by Respondent is overly broad and re- strictive. It is well established that it is not illegal per se for an employer to propose and bargain concerning a broad management-rights clause. N.L.R.B. v. American National Insurance Company, 343 U.S. 395 (1952). Rather it is the rigid and inflexible insistence on the inclusion in a contract of a sweeping management-rights clause which may, under some circumstances, constitute evi- dence of bad-faith bargaining. Preterm, Inc., 240 NLRB 654 (1979). In the circumstances revealed by the record herein, it cannot be said that Respondent was rigid and inflexible in its insistence on the management rights clause pro- posed by it. Certainly it did not evince an intransigent at- titude prior to the strike, for on October 13 it proposed a much less sweeping provision. At no time, insofar as the record reveals, was any particular aspect of the clause discussed other than subcontracting. After the strike, Re- spondent certainly had a good reason for desiring a sub- contracting clause, for it had discovered that it could effect certain savings by subcontracting. Another significant reason for Respondent's desiring such a clause was Trammell's insistence that, if a right were not specifically reserved in the agreement, Respon- dent did not have it. Trammell's reaction to the subcon- tracting provision was that the Union would not, under any circumstances, agree that Respondent have complete freedom to subcontract. The Union never suggested any more limiting language as to subcontracting. The Union never pointed out what other specific language it found objectionable in the management-rights proposal nor at- tempted to negotiate in any way as to any specific right reserved to management by this proposal. Furthermore, there is no evidence that the management-rights proposal ever became a sticking point during negotiation. In these circumstances, I cannot conclude that Respondent adopt- ed a rigid and inflexible position as to management rights which indicated a desire to frustrate bargaining and to avoid the reaching of an agreement. Preterm, Inc., supra. Cf. San Isable Electric Services, Inc., 225 NLRB 1073 (1976); Gulf State Canners, Inc., 224 NLRB 1566 (1976). However, the Board has consistently found bad-faith bargaining where the employer has insisted on a broad management-rights clause and a no-strike clause, while at the same time refusing to agree to an effective grievance and arbitration procedure. San Isable Electric Services, Inc., supra, fn. 7; Seattle-First National Bank, 241 NLRB 753 (1979). Thus, the allegation as to management rights is intertwined with the allegations that Respondent re- fused to bargain by proposing an employee complaint procedure that bars union participation in the adjustment of grievances and by proposing a no-strike provision without a complementary grievance/arbitration proce- dure. Therefore, the proposal, made by Respondent on December 5 supplementing its earlier grievance and arbi- tration proposal, is critical to all three allegations. The General Counsel contends that the combined grievance and employee complaint procedure clearly re- quired the consent of the supervisor for an employee to have access to the grievance procedure. The complaint alleges that the complaint procedure bars union partici- pation in the adjustment of grievances. The complaint procedure does not spell out any role for the Union. On the other hand, it does not specifically preclude union participation. I credit Plumb that he stated in negotia- tions that the complaint procedure was intended to apply to employee complaints that involved those rights that Respondent proposed be reserved to management. If the management rights clause were agreed to, these com- plaints would not be subject to the grievance and arbitra- tion procedure. However, nothing in the proposal pre- cludes the Union from grieving and arbitrating Respon- dent's interpretation as to the scope of the management- rights section. Further, according to Hickinbotham's uncontradicted testimony, in the past Respondent and the Union have informally discussed employee complaints that arguably did not fall within the scope of the grievance and arbitra- tion procedure and, by proposing the complaint proce- dure, Respondent did not intend to bar such union in- volvement in the future. Rather, it was intended to give employees a formal avenue for resolving problems that would not be covered by the grievance and arbitration procedure. As to the allegation that Respondent proposed a no- strike provision without a complementary grievance/ar- bitration procedure, Respondent's proposal does contain a grievance and arbitration provision which, if consid- ered alone, does not appear ineffective. The General Counsel contends that the proposed grievance and arbi- tration procedure is rendered ineffective by the De- cemher 5 proposal of an introductory paragraph for the resolution-of-dispute section which encompasses both the complaint procedure and the grievance and arbitration procedure. The problem, contends the General Counsel, is that the proposal requires the agreement of the super- visor before an employee can file a grievance under the grievance provision of the contract. Respondent argues that this language only reflects the reality of a situation, most common in grievance proce- dures, where the employee first discusses his or her com- plaint with the immediate supervisor. It is at this point, Respondent contends, that, in the ordinary course of things, a determination would be made as to which of the procedures would be appropriate. I note that Hickin- botham drafted the complaint procedure to apply to situ- ations "when an individual has a problem with his job, dispute with his supervisor or a co-worker, or a problem 103 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the interpretation or application of company policy." The introduction which raises the question herein of consent of supervisor to the filing of a griev- ance was written by Plumb in an effort to incorporate the two procedures into one section covering the resolu- tion of disputes. Respondent, in essence, is arguing that, at worst, the language is inartfully phrased. This is a plausible argu- ment. It is not unusual for nonlawyer negotiators to draft contract proposals in inartful language. I hesitate to as- cribe sinister motives from a reliance solely on the words used when those words could arguably have been intend- ed to mean something else, where, as here, we are not dealing with standard contract language. In this regard, I am well aware that Respondent could actually have had the intent ascribed to it by the General Counsel. Howev- er, Hickinbotham denied this and the Union by its con- duct foreclosed any testing of Respondent's intent. During negotiations, the Union never articulated the reason for its hostility toward the proposal. It never argued that the complaint procedure precluded union participation. Nor did the Union raise the issue that the language of the proposal appeared to require the agree- ment of a supervisor before an employee could have re- course to the grievance and arbitration procedure. Rather, the Union summarily rejected the proposal and stated that it would not discuss it, and, insofar as the record reveals, it was never discussed. Thus, we have no way of knowing how flexible or inflexible Respondent would have been as to this proposal. What appears to be the situation here is that Respon- dent made certain proposals which were summarily re- jected by the Union and immediately shoved aside with that group of proposals on which no agreement had been reached. In these circumstances, I find that the General Counsel has failed to establish that Respondent by its proposal of management-rights, no-strike and resolutions of dispute clauses was motivated by a bad-faith intent not to reach an agreement and to produce a stalemate in order to frustrate bargaining. Accordingly, I find that Respondent did not propose (1) an employee complaint procedure that bars union participation in the adjustment of grievances; (2) a no-strike provision without a comple- mentery grievance/arbitration procedure; and (3) an overly broad and restrictive management rights clause in violation of Section 8(a)(1) and (5) of the Act. Since Respondent has not engaged in the unfair labor practices alleged in the amended complaint, the strike which commenced on October 14 cannot be found to have been prolonged by those alleged unfair labor prac- tices. Accordingly, I conclude that a preponderance of the evidence does not establish the allegations set forth in subparagraph 12(a) of the amended complaint. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices which are alleged in the amended complaint in this proceeding for the reasons which have been set forth above. Upon the foregoing findings of fact, and conclusions of law, and the entire record herein, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following rec- ommended: ORDER9 It is ordered that the complaint herein be, and the same hereby is, dismissed in its entirety. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, 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. 104