Gulf States Mfg., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gulf States Manufacturers, Inc. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases 6-CA-6007, 6-CA-6049, and 6-CA-6151 June 28, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 24, 1977, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief and an answering brief in response to Respondent's excep- tions. 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,' and conclusions of the Administrative Law Judge and to adopt his 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 and hereby orders that the Respondent, Gulf States Manufacturers, Inc., Starkville, Mississippi, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent and the General Counsel have 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. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: This matter was heard in Starkville, Mississippi, on 11 days 230 NLRB No. 81 between July 19 and September 9, 1976, based upon charges which had been filed on February 17, March 11, and May 17, 1976, and amended on various dates thereafter, and a complaint which issued on April 20, and was amended on June 28, July 2, 1976, and at hearing herein. The complaint, as amended, alleged that Gulf States Manufacturers, Inc., herein Gulf States or Respon- dent, violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended, by interfering with, restraining, and coercing its employees in the exercise of their statutory rights, by laying off or failing to properly or timely recall or reinstate employees, and by bargaining in bad faith with the International Brotherhood of Boilermak- ers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, herein the Union. Respondent's timely filed answer and amendments thereto denied the substantive allegations of the complaint. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Comprehensive briefs were filed by General Counsel and Respondent and have been carefully considered. Upon the entire record, together with my careful observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS; CONCLUSIONS OF LAW Respondent, a corporation, is engaged at Starkville, Mississippi, in the manufacture of preengineered metal buildings. Jurisdiction is not in issue. I find and conclude that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find and conclude that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. MOTIONS At the opening of the hearing herein, Respondent moved to dismiss certain 8(aXl) and (3) allegations which had been added to the complaint by amendment dated July 2, 1976, on the basis that, having allegedly occurred in September and October 1975, they were time-barred under Section 10(b) of the Act,i and, further, that the amendment constituted an abuse of the Regional Director's discretion in that the allegations contained in said amendment had previously been the subject of an unfair labor practice I Sec. 10(b) provides, inter alia: ... That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board .... 558 GULF STATES MANUFACTURERS, INC. charge, Case 26-CA-5812, which had been withdrawn with the Regional Director's approval pursuant to an adjust- ment reached by the parties.2 General Counsel moved to amend the complaint to allege a revocation of the Regional Director's approval of the withdrawal of Case 26-CA-5812 and to include that charge as a further predicate for the substantive allegations of the complaint. At hearing, I denied Respondent's motion to dismiss on the basis of the limitations period and granted General Counsel's motion to amend the complaint. Respondent renewed its motions in its brief. Upon consideration, I adhere only to the first of my rulings. The allegations of the July 2, 1976, amendment to the complaint are supported by the original charge in Case 26-CA-6007, filed February 17, 1976, which con- tained allegations of similar violations of Section 8(a)(XI), (3), and (5), occurring specifically between October I and December 21, 1975, and the usual printed "catchall" language. 3 This charge, timely in relation to the com- plaint's allegations, is broad enough to support those allegations. N.LR.B. v. Fant Milling Company, 360 U.S. 301 (1959). Moreover, the charge in Case 26-CA-6007 was amended on July 2, 1976, to specifically include the disputed allegations and, as the Board noted in Eugene and Veronica McManus, co-partners d/b/a Sunrise Manor Nursing Home, 199 NLRB 1120, 1121 (1972): "an amended charge, although filed more than 6 months after the occurrence of the unfair labor practice, will be timely if it relates to an unfair labor practice inherent in or connected with the original charge." The amendment was so con- nected. Respondent asserted that reinstitution of the allegations contained in the withdrawn charges, as part of the later filed charges, should not be permitted because the withdrawal was part of a "non-Board" adjustment and that such "refiling" would discourage voluntary settlements. On the same grounds, Respondent asserted that the Regional Director's revocation of his approval of the Union's withdrawal of its charges and the reinstitution thereof constituted an abuse of discretion.4 I find no abuse of discretion and deny Respondent's motion to strike those complaint allegations which had been encompassed within Case 26-CA-5812, the withdrawn charge, and the "non- Board settlement." The Regional Director was not party to that settlement and "any agreement which Respondent and the Union may have entered into and which resulted in the withdrawal of these prior charges was a private agreement which does not estop the Board to proceed on any new charges alleging the same conduct as the withdrawn charges." John F. Cuneo Company, 152 NLRB 929, 931, fn. 4 (1965), and cases cited therein. As the allegations which had first been raised in Case 26- CA-5812, were properly pleaded in the complaint upon the subsequent charge in Case 26-CA-6007, reinstatement of the withdrawn charge in the earlier case was unnecessary. 2 General Counsel's posthearing motion to strike from Respondent's brief a reference to the settlement and withdrawal which "the Regional Office instigated and approved" is granted in part. The record contains no evidence that the settlement was instigated by the Regional Office or that the settlement, as distinguished from the withdrawal request, was approved by the Regional Director. As pointed out by Respondent's opposition to that motion, however, the record does contain a stipulation pertaining to the withdrawal of that charge. Moreover, the stipulation of the Union and Respondent wherein it was agreed that Case 26CA 5812 would be withdrawn, in return for Respondent's withdrawal of certain objections to an election, is in the record as part of Resp. Exh. I. Moreover, I have reviewed my ruling in regard thereto, and the pertinent authorities, and now deem the reinstitution of that charge to have been improper. The Board permits reinstatement of withdrawn charges beyond the limitations period, where such reinstatement is warranted by equitable considerations. Silver Bakery, Inc. of Newton, 150 NLRB 421 (1964). 5 The equitable considerations deemed suffi- cient in Silver Bakery and subsequent cases have involved withdrawals based upon erroneous or inaccurate advice from Regional Office personnel. No such situation exists herein. The only basis asserted to justify reinstatement of the charge is Respondent's subsequent illegal activity. Such may be sufficient to warrant setting aside a settlement agreement to which the Agency was a party. I do not believe it gives rise to sufficient equitable considerations to warrant a circumvention of the statutory limitations period. Ill. REPRESENTATION ELECTION AND CERTIFICATION The Union filed a petition on July 21, 1975, seeking to represent Respondent's employees in the following appro- priate collective-bargaining unit: All production and maintenance employees, plant clerical employees, full-time and regular part-time truckdrivers and leadmen employed at Gulf States' Starkville, Mississippi, location, excluding all office clerical employees, draftsmen, guards and supervisors as defined in the Act. The election was conducted on September 12, 1975, and a majority of the employees voting in said election voted for representation. On November 11, 1975, following withdrawal of Respondent's objections to the election and the Union's unfair labor practice charge (discussed supra), certification issued. The Union has continued to be the exclusive collective-bargaining representative of these employees. IV. THE UNFAIR LABOR PRACTICES A. Blaming the Union for the Denial of Wage Increases Sometime during the spring of 1975, because of adverse economic conditions and prior to the start of any union activity, Respondent announced and implemented a "wage freeze." Other than increases due to promotions, neither employees nor supervisors received wage increases thereaf- ter until February 1976. After the advent of the Union, however, various statements were attributed to manage- ment which, General Counsel claims, unlawfully placed the 3 "By these and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the nghts guaranteed in Section 7 of the Act." 4 I withheld ruling on the latter question. The Board has not accepted the view of the First Circuit Court of Appeals, denying enforcement. N.LR.B. v. Silver Bakery, Inc., 351 F.2d 37 (1965). See Communication Workers of America, Local 1127, 208 NLRB 258, 264 (1974). 1 am, of course, required to follow the Board's decision absent such acquiescence. 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD onus for Respondent's refusal to grant raises upon the Union. On or about September 11, 1975, Clayton Richardson, Respondent's general manager, delivered a speech to the employees. He stated, inter alia: Now I want to move on and I want to talk to you about the freeze for just a minute, because there's a little confusion there. Do you know that you're under two freezes right now? You're under two. You've got the one that was put on by the company because our business was down. We put a freeze on. Business was bad. Now the second freeze that was put on was put on when we received a petition on July 29 and at that time everything was frozen by the government. Now this freeze that the government put on will stay on until (1) the union loses the election (2) if the union got in and the company agreed to a contract. Richardson spoke of a rumor to the effect that the Union would wait until spring to negotiate. He pointed out the negotiations at another company took 19 months, added that to the period since the last raise and to the number of months until spring, and indicated that there might be as much as 41 months from the last raise to the next if the Union won the election. Approximately 2 weeks after the election, Joe Malone asked his supervisor, John Hayes, about a raise. Hayes told him that the Union had the wages frozen. Malone pressed for an explanation and Hayes stated, "Probably if you hadn't got the union in, you probably would have got your raise." Malone disputed this and Hayes told him that, if he would get a group of people to sign a "certificate" to vote the Union out, he might be able to get his raise.6 Sometime in October, employee Jack Griffith asked John Hayes when there would be a resumption of wage increases. According to Griffith, Hayes replied that he didn't know, that "the Union had the wages frozen." Hayes recalled that he told Griffith that the freeze was still on and would remain in effect until the Company and the Union came to an agreement. In November 1975, Richard Harris told Supervisor Erven Perrigan that he had heard that the freeze was off. He asked about a raise. Perrigan told him, "Well, the Union's got things tied up now." Employee Phillip Parker related that he asked Perrigan about a wage increase, in January 1976. Perrigan, he testified, told him that the Company could secure union approval for his raise if it wanted to and that he probably would not get a raise until the contract was negotiated. Perrigan admitted having conversations in regard to raises with both Harris and Parker. He denied that he told any employee that they could not receive a wage increase because of the Union, but admitted that he told employees that their wages would be determined in negotiations. The testimony of Harris and Parker was credibly offered. I was less favorably impressed 6 Malone's testimony was corroborated in all respects except the date thereof by Willie Holmes, his helper. Hayes denied the Malone-Holmes' version and testified that he told Malone that wages were still frozen and that he had been instructed not even to fill out wage increase forms. Malone then allegedly asked for such a form which he would fill out himself and asked who would have to sign it. Hayes replied, "A bunch of folks has got to with Perrigan's testimony and conclude from the compara- tive demeanors and from inconsistencies in Perrigan's direct and cross-examination testimony that Harris and Parker's recollections are the more accurate. Employee Steven Carmichael related a conversation with Supervisor Joe Starnes, on February 12, 1976. After discussing whether the employees would be going on strike and how the employees would pay their bills if they did, Starnes allegedly stated, "if it hadn't been for the Union freezing our wages, that we probably would have already had a raise." Starnes testified that Carmichael frequently asked him for more money. He denied, stating flatly that the Union had the wages frozen but admitted that he told Carmichael that during negotiations everything was tied up and he could not get any wage increases. In view of the fact that, at the time of this conversation, the parties had been engaged in approximately 3 months of bargaining, the last several sessions of which had dealt with wages, and noting certain inconsistencies between Carmichael's affidavit and his direct and cross-examination in regard to whether Starnes referred to a wage freeze because of union activity or imposed by law, I credit Starnes. Where an employer places the onus for its own failure to grant or consider wage increases upon the Union and the employees' union activities, it may be considered to have threatened employees with economic loss because of their union activities or, more generally, to have interfered with employee rights under Section 7 of the Act, in violation of Section 8(a)(). American Commercial Bank, 226 NLRB 1130 (1977); Aircraft Hydro-Forming, Inc., 221 NLRB 581 (1975). In the instant case, Respondent had a practice of granting periodic raises; that practice, however, had been interrupted by Respondent's self-imposed "wage freeze." Respondent's freeze was occasioned by poor business conditions and, presumably, could have been lifted at any time business improved. On top of its own freeze, Respondent announced that there was a second freeze, caused by the filing of the petition. That freeze, Richardson told the employees, would remain until the Union lost the election or lengthy negotiations were completed. It was thus made clear to the employees that, even if Respondent were to lift its self-imposed freeze, their union activity would prevent the periodic raises from being resumed. "It is well established that during an organizational campaign an employer must decide whether or not to grant improvements in wages and benefits in the same manner as it would absent the presence of the Union." Sinclair & Rush, Inc., 185 NLRB 25 (1970). Richardson thus misrepre- sented the applicable law. Similarly, the conversations between Hayes and Malone, Hayes and Griffith, Perrigan and both Harris and Parker and Starnes and Carmichael, all blamed the Union for the omission of the periodic wage increases. No mention was made in these latter conversa- tions of the earlier economic freeze; implicit in the various statements was the indication that, but for the Union or the negotiations, the employees would be receiving their sign it." On cross-examination, Hayes acknowledged that he told Malone that the Company and the Union would have to agree to any wage increases. Hayes' version of the conversation appeared strained and improbable; I therefore conclude that the incident occurred in the manner related by the more credibly offered testimony of Malone and Holmes. 560 GULF STATES MANUFACTURERS, INC. periodic raises. Further, as I have found, Hayes solicited an employee to circulate a petition to eliminate the Union. By such statements, I conclude, Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(aX 1) of the Act. B. Changes and Threatened Changes Resulting From the Union Activity In the course of his preelection speech, Richardson told the employees that in the past when work was slow Respondent had given consideration to the traveling arrangements of the employees when they had short days or layoffs. He indicated, however, that in unionized plants no such consideration is given; "When the work runs out, you hit the clock and go home." He told the employees to think of the kinds of problems "that's going to be to you fellows who ride together in a car pool." On the morning of September 15, 1975, the Monday following the election, Supervisor Starnes held a meeting of all of his shipping department employees. According to the testimony of employee Steven Carmichael,7 Starnes told them "that he was going to tell us the rules and regulations again and explain them to us, because they would be strictly enforced." They were prohibited from using company telephones for outgoing calls or receiving person- al calls unless of an urgent nature. He prohibited them from leaving their work areas without permission and directed them to wear their safety clothing and glasses or be subject to discipline. The checkers were told to "tighten down." In each of these areas, Starnes had been lax or had tolerated some deviation from existing company rules. Starnes attributed his laxity to a desire to avoid alienating the employees during the preelection period. Starnes further told the employees in his department that "Gulf States would no longer make work for us. If we ran out of something to do sometimes, we would be sent home rather than sweeping or things like that, or cleaning up the yard." The complaint alleged that between September 15 and October 1, 1975, Respondent laid off approximately 19 employees, because of their union activity. Carmichael testified that, in the afternoon of September 15, he and Tim Harrelson were sent home, by Starnes, for the remainder of the day, notwithstanding that the work which Starnes had assigned them to do had not been completed. Others, he testified, were also sent home that day. Roy Sims testified that he was sent home, with several others, for a portion of the day on September 17, allegedly for lack of work. He did not dispute his supervisor's contention that work had run out. On October 1, 1975, Edgar Thompson, a loader in Starnes' department, and two other employees, were sweeping and cleaning up and were sent home a couple of hours early. According to General Counsel's Exhibit 7, a total of 13 employees had been sent home early on September 15, I was laid off all day on September 16, 3 were laid off for 3 hours on September 17, and 3 were sent home early on October 1, 1975. That same exhibit evidences that on 12 days in 1974, there were complete, or I Corroborated by Edgar Thompson and not substantially contradicted by Starnes. R In reaching my conclusion on this issue, I deem it unnecessary to determine whether the specific individuals laid off were known union nearly complete, shutdowns for the entire day. In 1975, from February to May, there were 13 such days. Addition- ally, on 7 of those 13 days, some of the employees were laid off for a portion of the day while the rest of the work force was laid off for the entire day. There were no whole or part-day layoffs from May 16 until September 15, 1975. Based upon the foregoing, I conclude that, immediately following the election, Starnes amplified upon the theme which Richardson had opened in his preelection speech and threatened to change, or changed, the rules under which the employees had been working and the privileges which they had been enjoying prior to the election. He also threatened them with diminished work opportunities. These threats and changes were related in both time and intent to the election in which the Union had just prevailed. Accordingly, I conclude that, by Starnes' threats and by the changes he implemented, Respondent coerced its employees in violation of Section 8(a)X ). I further conclude that the layoffs which occurred between September 15 and October 1, 1975, were in reprisal for the employees' selection of the Union and thus violative of Section 8(aX3) of the Act. It so concluding, I note particularly Richardson's warning that just such a result would follow a union victory, Starnes' statement in regard to the same, the proximity of the layoffs to the election and the threats, Carmichael's testimony that the work he had been assigned to do had not been completed before he and Harrelson were sent home, and the change in the pattern from Respondent's prior layoffs. In those prior layoffs, virtually all employees were laid off for the full day while a few employees were permitted to remain or work a partial day; the record does not reflect the selection out of small numbers of employees to be sent home in those earlier incidents.8 Employee Richard Harris testified that, on a day shortly after the election, his supervisor, Perrigan, came over to where he and several other employees were discussing the election. Perrigan told them, "You all have let me down." When Harris asked for an explanation, Perrigan said, "Well, I can't help you'ans any more. You'll have to go through your stewards and your President and everything with the Union now." Perrigan admitted telling a group of employees that he felt they had let him down, but unconvincingly claimed that his remark related to the poor quality of work they had been performing. Perrigan did not specifically deny the "I can't help you'ans anymore" remark; his answers in regard thereto were nonresponsive. I therefore credit Harris, notwithstanding that his testimo- ny of this conversation was not corroborated by any of the other employees who were present. Perrigan's remark, withdrawing whatever assistance he may have been able to give the employees in the past, because they had chosen to be represented by the Union, I conclude, interfered with the employees' Section 7 rights, in violation of Section 8(aXI). adherents. It is sufficient that the evidence established that the action was taken against employees generally in reprisal for the outcome of the balloting. 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Miscellaneous Prestrike 8(a)(1) Allegations Richard Harris testified that, on the day before the election, Perrigan asked him how he felt (presumably about the Union). Harris' helper, Wright, was present. Harris, who had worn a union insignia every day prior to the election, did not answer him. Perrigan did not deny this testimony, but did deny that he asked Wright how he felt about the Union. In light of Harris' open support for the Union, even if Perrigan asked the vague question set forth above, I would not deem such questioning to constitute unlawful interference. Phillip Quinn has worked for Gulf States since 1973 and, from time to time, had been permitted to take truckloads of scrap lumber for use as firewood. He did not participate in the union activity prior to the election but began to wear a union insignia thereafter. Around the end of September, he asked Frank "Buck" Oakes, warehouse superintendent, for authorization to remove a load of scrap. Oakes said he would check into it and get back to Quinn. According to Quinn, he repeated his request a couple of days later and Oakes told him, "I don't know about that ... Didn't I see you with a little tag on? ... That little thing on your shirt about the Union." Quinn replied affirmatively and Oakes stated, "Well, I don't know. I started writing it but I don't think I'll issue none." Oakes admitted refusing Quinn permission to remove a load of wood but claimed, contrary to Quinn, that the wood was not scrap but usable 4-by-4- inch lumber which Quinn wanted for building, not burning. He denied refusing permission because of Quinn's union insignia. Subsequent thereto, according to permis- sion slips introduced by Respondent, employees, including known union activists, were permitted to remove scrap lumber. While the matter is not free from doubt, I credit Oakes and recommend that this allegation be dismissed. In so concluding I note that, in another area, Quinn's testimony regarding when he first heard of the strike plans, I found Quinn's testimony improbable and difficult to accept. I note also the subsequent granting of permission to union supporters to remove scrap wood. Roy Sims, an employee and president and business manager of the Union Local, had a conversation with Maintenance Superintendent Thomas Howard during October 1975. As Sims recalled the conversation, after discussing some work-related matters, Howard said, "By the way, I didn't appreciate what Johnny [Oswalt] done." Sims asked if Howard was referring to charges that he had filed and Howard replied, "Yeah ... here I helped him get his job back ... and he does something to me like this." Howard said that he did not want anyone working for him that "would do him like that." Oswalt had been among 13 employees named as discriminatorily laid off on September 15, 1975, in the charge filed on September 17, 1975, in Case 26-CA-5812. He had earlier been laid off and had lost his seniority. According to Howard, when he hired Oswalt back in July, Oswalt had volunteered that he was procompany. Howard denied the statement attributed to him by Sims and denied that he was even aware of the charge naming Oswalt until an NLRB Field Examiner came to the plant to take affidavits, subsequent to the conversation with Sims. Howard testified that he had been told that Oswalt had told other employees in a union meeting that Howard had only hired him back because he was procompany. It was to this statement that Howard was referring when he told Sims that he did not appreciate what Oswalt had done. He denied saying that he did not want such a person working for him. Noting that the charge in Case 26-CA-5812 was filed not by Oswalt but by the Union, that Oswalt was but I of 13 employees named in the charge, that the charge did not specifically allege misconduct by Howard, and that Howard's alleged statement to Sims contained no direct reference to the charge, I find it probable that Howard's version of the incident more nearly described it accurately. Accordingly, I shall recommend that this allegation be dismissed. D. Section 8(a)(XS) - The Refusal To Bargain in Good Faith 1. Negotiations - an overview The negotiations consisted of 19 bargaining sessions between November 21, 1975, and June 15, 1976. General Counsel contended that Respondent had engaged in "surface bargaining," with no intention of reaching a collective-bargaining agreement, and had unilaterally granted its employees a wage increase. In asserting that Respondent sought to frustrate rather than achieve agreement, General Counsel specifically pointed to the course of negotiations on seven critical subjects: checkoff, management rights, representation, grievance and arbitra- tion, seniority, Christmas bonuses and Thanksgiving turkeys, and wages. These will be separately discussed. No contention was made that Respondent engaged in dilatory tactics, failed to furnish information upon request, or committed other "technical" violations sometimes found in surface bargaining cases. Respondent was willing to meet frequently and for adequate lengths of time; it assumed the bulk of the responsibility for preparing proposals or writing up agreements. The Union was represented throughout negotiations by Curtis Orman, International representative, and a commit- tee of employees. Attorney James Smith and a committee from management represented the Company. The Novem- ber 21 meeting was introductory; the Union presented the first half of its proposals, received certain information previously requested, and requested additional information regarding existing benefits. Smith pointed out the adverse economic conditions which Respondent contended it faced and asked that the Union keep its proposals reasonable. They agreed to withhold negotiations on economic issues until language issues were resolved. In regard to insurance, the Union questioned a provision in the Company's insurance booklet purporting to limit insurance coverage to those earning less than $7,500 per year. This was to be a question raised repeatedly throughout the negotiations. Company representatives orally assured the Union that the provision was not so applied. A request was made by the Union that Respondent pay the committee for time spent in negotiations. The Union's proposals were reviewed, but no agreement was reached. At the second meeting, December 5, 1975, the Union presented the remainder of its proposals and these were 562 GULF STATES MANUFACTURERS, INC. discussed. Respondent complied with the Union's request for information on fringe benefits with a proposal to continue its practice on vacations, holidays, funeral leave, and jury duty pay, as set forth therein. The Union's request for pay for the time spent in negotiations was rejected; however, the Company agreed to hold meetings on alternate mornings and afternoons to minimize the loss of wages by the committee. In the course of the third and fourth meetings, December 17 and 18, Respondent present- ed its written proposals, which were discussed. The next meetings were held on January 7 and 8, 1976. Smith was not present at these or subsequent meetings until April 6. Respondent was represented by Attorney Scott Watson, of the same firm. Watson had Smith's notes of the prior meetings but requested the Union to go back through its proposals and explain them again. The Union objected, but complied. Respondent's proposals were also discussed again. In the course of the discussions, Orman observed that Watson was well apprised of what had transpired in the earlier meetings; he was able to point out where the Union was varying from its earlier positions. In the course of these meetings, agreements or tentative agreements were reached on the preamble, purpose and scope, recognition, reporting and call-in pay, and funeral pay. In response to the Union's request for recognition of its safety committee, Respondent agreed to the principle of a safety committee but stated that as the safety and health of the employees was its responsibility it would appoint the committee, which might or might not include the Union's committee members. The meetings of January 19 and 20 began with discussion of all issues, at Watson's request, to determine what had been agreed upon. Respondent made a new proposal on the preamble, deleting the Local Union from the title. In response to the Union's objection, Watson stated that the preamble would have to conform to the certification. Among the other subjects discussed was the Union's pension plan. Watson asked whether benefits vested in the first year. Orman said that they did not and Watson stated that the Respondent was "not interested in it then, because the men might want to vote the Union out in one year. . . they have this right." The parties discussed the profits from the vending machines and Respondent said that they did not want to give the profits to the Union. Orman replied that they did not want the profits, only some say about how the profits went to the employees. A long discussion was held on bulletin boards, Orman explaining that they wanted a board or a portion of the Company's bulletin board to post notices of union meetings and other noncontroversial matters. Watson questioned whether the Union mailed out meeting notices and asked the Union whether it was expected the Respondent would let them use their bulletin boards without paying the Company for them. After a discussion lasting an hour to an hour and a half, the Company's local counsel, Gholson, spoke up and pointed out that, for the value of the time spent, bulletin boards could have been purchased. Watson then drew out a previously prepared proposal on bulletin boards, which was agreed to with a single modification. At this meeting, Respondent asked the Union to submit its economic proposals and agreed to the Union's request for more frequent meetings. The parties met daily between January 27 and 30. Wage proposals, as discussed infra, were exchanged and debated. The Union once again questioned the apparent $7,500 limit on insurance coverage and, once again, was orally assured that no such limitation was enforced. On February 1, the union committee met with the membership, described the course of the negotiations, and submitted Respondent's offer to the membership for a vote. The employees rejected those offers and authorized a strike. Respondent was informed of the results of the meeting. The Company and Union met next on February 10, with the assistance of a Federal mediator. The mediator reviewed the parties' positions and reported to the Union that the following items were in dispute: vacations, termination of agreement, holidays, jury duty pay, manage- ment rights, leave of absence, hours of work and overtime, discipline and discharge, safety and health, seniority, grievance and arbitration, checkoff, pension and insurance, and the no-strike, no-lockout provision. To this, the Union added the vending machines, pay for the union committee, reinstatement of an employee discharged earlier, and Christmas bonuses. The Union also protested that Respon- dent's proposals would reduce benefits in a number of areas: Christmas bonuses, Thanksgiving turkeys, the right to grieve on company time and property, use of telephones, holidays where they fall within an employee's vacation, and pay for time spent in repeated visits to the doctor following an injury. The parties then got together and discussed various articles, at the suggestion of the media- tor. In this meeting, Respondent gave the Union a list of three items it would move on if the Union would accept the remainder of its proposals: a reduction of the probationary period from 120 to 90 days, adding a "just cause" requirement to its proposal permitting it to reduce the work force for up to 14 days without regard to seniority, and substituting the language "as need requires" for "as schedule dictates" on its proposal regarding its right to unilaterally schedule the hours of work. At the conclusion of the meeting, the mediator stated that he saw no need to meet further; Orman, however, caucused with his commit- tee and then asked the mediator to arrange one more meeting, at which time the Union would substantially reduce its proposals. The next meeting was held on February 13. The Union presented Respondent with a list of five items for which, if the employer would agree, the Union would drop its objections to the remaining company proposals. These involved grievance and arbitration, hours of work, seniori- ty, checkoff, and a wage increase. They also asked for some guarantee in regard to the inapplicability of the $7,500 earnings ceiling on insurance coverage. They spelled out what they wanted in each of these areas. The Company caucused and, when they returned, Watson told the Union, "We have considered the items you gave us, and we have our final proposal on the table." The meeting concluded. The Union met again with its membership on the evening of February 13. After reviewing the course of the bargaining, Respondent's offers, and the 8(aX)(I) conduct 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously engaged in by the employer, the employees voted to strike. The strike began on the following morning. It lasted but I week. On February 16, Respondent implemented its wage offer. The first meeting following the strike was on February 27. Respondent announced that it was taking its proposals off the table in order to assess the effects of the work stoppage. In response, the Union said that, if the Company proposals were withdrawn, its were also. They met next on March 17, with the mediator present. Watson asked what union proposals were on the table and Orman replied that, as both had taken their proposals off the table at the last meeting, Orman would go back to their original proposals. Watson stated that he had thought the Union was willing to move. Orman replied that it took two, that the Union was ready to do so, and asked what the Company had on the table. Watson replied that they were not through assessing the effects of the work stoppage and therefore had no proposals on the table. Orman offered to accept Respondent's management rights clause if Watson would agree to their proposal for checkoff irrevocable for I year. Watson replied that he thought the Union was going to be ready to move. He asked about the Union's earlier 5-point proposal; Orman replied that had been a one-time offer to try to reach settlement before the strike. When next the parties met, on April 16, both Smith and Watson attended for Respondent. The question concerning the Union's February 13 "5 point" proposal was repeated and the company proposals were discussed. Respondent indicated that it would stand by the agreements earlier reached: preamble, recognition, purpose and scope, report- ing and call-in pay, funeral leave, and bulletin boards. The Union again repeated its objections to the apparent limitations on earnings for those eligible for insurance coverage. Jackson, manager of manufacturing, then took Orman's copy of the insurance booklet and physically struck the offensive phrase. On May 14, the Union went through its proposals. It modified or dropped proposals relating to union security, hours of work, payment for safety equipment, vending machine profits, and the reinstatement of an earlier discharged employee. Orman told Watson that the Union had dropped some of their proposals and was willing to further reduce or eliminate others. He asked whether the Respondent was willing to move on some of theirs. Watson's reply was, "We have not proposed too many ... we don't have any to drop." The final meeting prior to the hearing was held on June 15. The Union presented some written proposals, as requested by Respondent. No agreements were reached. Watson stated that Respondent would consider the Union's proposals and would make counterproposals. There were no subsequent meetings. 2. Christmas bonuses and Thanksgiving turkeys In the first meeting, upon Orman's request for informa- tion, the Union was informed that, for the past 3 years, employees had received turkeys on Thanksgiving and what Respondent termed a "gift" each Christmas. Employee Hillhouse testified that he had received $15 on his first Christmas with Respondent, and $5 more each succeeding year, for approximately the last 6 years. In the second meeting, the Union made a written proposal, providing a Christmas bonus based upon years of service and hours worked. Smith repeated Respondent's position that the annual payment was a gift. Smith told Orman that, if Respondent determined not to make this payment, they would notify the Union and, if they did make it, the payment would be consistent with its past practice.9 The Union's position, whenever this matter was discussed, was that these terms were "wages," and should be contractually guaranteed. Respondent never indicated that it intended to eliminate the "bonus" or the annual turkey, but consistent- ly stated that it deemed them to be discretionary, gifts, and refused to bind itself contractually to their continuation. 3. Dues checkoff The Union's initial proposal provided for union security if and when permitted by Mississippi law (Mississippi is a so-called right-to-work State) and dues checkoff where authorized by the employee, said authorizations to be irrevocable for I year or until expiration of the contract, whichever was sooner. It promised indemnity to Respon- dent for all claims arising out of Respondent's compliance with the checkoff provision. The parties discussed this proposal in the first or second meeting. The Union's checkoff proposal had included two forms of checkoff authorization. These cards were discussed in the meeting of January 7, with Orman explaining that some employees had signed a newer form than others and requesting that Respondent accept either. However, he offered to have the employee all execute the same form. On January 19, Respondent gave the Union its checkoff proposal (G.C. Exh. 21(c)), which provided for authoriza- tions revocable at will, required new authorizations upon any change in the amount of dues, and precluded deduction of dues arrearages. The Respondent's proposal was resubmitted on January 27 (G.C. Exh. 23(d)) and was discussed at that time. The Union objected, in particular, to the revocability "at-will" feature of Respondent's proposal and sought I-year irrevocability. According to Orman's undenied testimony, Watson stated that Respon- dent did not know whether the employees had really signed the cards. Orman offered to have all employees execute the authorizations in the presence of the personnel manager, in return for l-year irrevocability. Watson refused, stating that Respondent did not want the employees to think that they were promoting the Union. In the course of the meeting on January 28, Watson expressed his personal 9 Orman's recollection, that it was not until the third meeting following the strike that Smith said the foregoing, is, I believe, less accurate than Respondent's notes of the bargaining which reflect that this was stated in both the December 5 and April 6 meetings. 564 GULF STATES MANUFACTURERS, INC. opposition to checkoff.'0 On February 13, as part of its 5- point offer to resolve negotiations, the Union sought irrevocable checkoff and offered to drop checkoff of back dues. On March 17, Orman told Respondent that, if it would agree to their checkoff proposal, they would accept Respondent's management rights clause. Watson stated that he had thought that the Union was ready to move. No agreement was reached then, or subsequently, on this issue. 4. Representation The Union's initial proposal provided for company recognition of union-appointed stewards "sufficient in number to handle grievances" and for company coopera- tion with such stewards in the performance of their duties. It further provided for a steward for each shift and for the stewards' right to investigate and handle grievances and complaints in their respective areas. Respondent's proposal (G.C. Exh. 2 1(d)) was presented on January 19. It provided for shop stewards in three designated areas, precluded payment of stewards for any time spent in processing or investigating grievances, and further provided: The Union further agrees that all grievances including investigations thereof, shall be handled at times other than the normal work shift of the grievant(s) and the Shop Steward involved unless the Company agrees in writing that such grievances may be handled at a time during the normal work day. The Union further agrees that all grievance investigations shall be conducted off the plant site unless the Company agrees in writing that such grievances can be investigated on the plant site. The Union objected to Respondent's proposal, particularly its refusal to pay stewards for grievance meetings and its prohibition of investigations on the plant site. It was pointed out to Respondent that this was inconsistent with Respondent's past practice, as set forth in the employee handbook, which provided for free access to supervisors and higher management for employees with problems. On January 27, Respondent offered a modified represen- tation proposal, providing that stewards would be paid for their time spent in meetings called by the Company during normal working hours. It further provided for additional stewards if second or third shifts were established. The restrictions on the time and place of grievance investiga- tions were maintained. 5. Grievance and arbitration The Union's initial proposal included a 3-step grievance procedure leading to final and binding arbitration, with the costs thereof to be paid jointly. These were generally discussed in the first and second meetings and Smith agreed to make Respondent's proposal at the third meeting. On December 17, Respondent made its proposal on this subject. It required that a grievance, defined as a complaint over the interpretation or application of a specific provision of the agreement, be raised by the I' Watson's personal objection to checkoff did not preclude him from negotiating a checkoff provision, with authorizations irrevocable for I year. in bargaining with another employer which he conducted at the same time employee with his supervisor within 2 workdays or be waived, be reduced to writing within 2 workdays or be deemed abandoned; it gave Respondent 7 workdays to respond to the written grievance and treated Respondent's failure to reply within the time limit as a negative reply, established a third-step meeting between the International representative and the manufacturing manager, and pro- vided for arbitration on a voluntary basis only. All grievances, unless arising out of the same facts, were to be heard by separate arbitrators in separate hearings and the Union was to bear all the costs of arbitration unless it prevailed; in that case, costs were to be split. The authority of the arbitrator was narrowly proscribed. The clause provided, inter alia: No arbitrator shall have the jurisdiction or authority to add to, take from, nullify, or modify any of the terms of the Agreement or to impair any of the rights reserved to Management under the terms hereof; nor shall he have the power to substitute his discretion for that of Management in any manner where Management has not contracted away its right to exercise discretion. The Company's judgement and decision of the qualifica- tions of any employee to perform any job shall not be subject to arbitration. . * S Should it be determined that an employee other than a probationary employee, was disciplined or discharged without just cause . . he shall be restored to his former status; provided, however, that the arbitrator shall not have the authority to grant back pay, unless agreed to as part of the arbitration agreement. The parties discussed Respondent's proposal, with the Union expressing objection to the narrow definition of a grievance, the short and apparently overlapping time limitations on processing the first two steps, and the nonmandatory nature of arbitration. Smith said that Respondent had proposed voluntary arbitration (at least in part) because the Union had failed to propose a no-strike clause. Orman told Smith that this was an oversight. They further objected particularly to the exclusion from arbitra- tion of decisions on job qualifications, the limitations on backpay, and the burden of the expenses of arbitration. The discussion continued on December 18, with Orman stating that he would not propose a no-strike clause unless the arbitration clause could be worked out. The grievance steps were discussed, including the timespans. Orman proposed "Union grievances" where a number of employ- ees were involved. There was consideration of the sources of lists of arbitrators. In the meeting of January 7, the Union's proposals were rediscussed. Watson, replacing Smith, objected to the Union's proposal, stating that he liked voluntary arbitra- tion and did not want Orman taking him to arbitration "every time he turned around." The subject came up again on January 20 and, at that time, Orman orally proposed a as the instant negotiations. See Resp. Exh. 19. As demonstrated by Resp. Exhs. 15 17, Respondent's counsel's firm has also negotiated agreements providing for checkoff revocable at will. 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD broad no-strike no-lockout clause. Discussion was held on whether the Union's proposed grievance procedure would be applicable to disputes regarding the payment of insurance benefits; the Union asserted that it should, Respondent contended that this was a matter between the employee and the insurance company or the state insur- ance commissioner. Respondent objected to any provision which would make everything subject to an arbitrator's award. The Company, Watson testified, agreed to arbitrate where it was willing, and gave the Union the right to strike if Respondent refused to arbitrate. Initially, the right to strike did not include disputes over the establishment of new jobs with new rates; the Company's initial proposal made this a subject for the next negotiations. Upon the Union's objections, Respondent agreed to make this subject to the Union's right to strike, without waiting until contract expiration. At the meeting of January 20, Respondent presented a modified grievance and arbitration procedure, General Counsel's Exhibit 22(c). It included union grievances within the definition of grievances, it expanded the time for filing at the first step to allow for acquisition of knowledge of the occurrence giving rise to the grievance, it expanded the time limit for processing to the second step to 5 days and reduced, from 7 to 5, the number of days for the departmental superintendent's response at that step. It further expanded the "appeal" period at step three from 7 to 14 days. Arbitration was still to be voluntary. The limitations upon the arbitrator's authority remained essen- tially the same, except that the arbitrator could award backpay. The specific exclusion of management determina- tions of an employee's job qualifications from arbitration was eliminated. The proposals for separate arbitration proceedings and union payment of arbitration expenses were retained. Added was a provision entitling the Union to strike over "a matter properly subject to the Grievance Procedure" if Respondent declined to arbitrate, provided that the Union notified Respondent of its intention to strike within 10 days of being notified that Respondent would not arbitrate, and then struck "upon a specified date within ten (10) days" of such notice. Compliance with those provisons would preclude the strike from violating the broad strike and lockout article, as proposed by Respondent on the same date. In discussing Respondent's proposals, the Union continued to assert that it wanted 5 days in which to file a grievance and preferred mandatory arbitration and a "straight" no-strike clause to the limited right to strike. Alternatively, it sought the right to strike without the notice provisions. On January 29, Orman gave Respondent a new union proposal for the grievance and arbitration procedure. Watson objected to the time limits and mandatory arbitration provision. Orman pointed out that, in Respon- I United Steelworkers of America v. American Manu facturing Co., 363 U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp.. 363 U.S. 593 (1960). These cases hold, in sum, that where a collective-bargaining agreement calls for the arbitration of all questions of contract interpretation, the function of the court in a proceeding to require arbitration is merely to determine whether a claim has been made which, on its fact, is covered by the contract. A strong policy favoring arbitration and removing the courts from the merits of such dent's offer, failure by the Union to comply with the time limits meant abandonment of the grievance, but failure by the employer was merely a negative reply to the grievance. Watson's response was "I see what you mean." On February 13, Orman included a grievance and arbitration procedure in the Union's 5-point proposal. He sought final and binding arbitration but, if Respondent insisted, offered to accept voluntary arbitration with no restrictions on the right to strike absent arbitration. As noted, Respondent neither accepted the Union's offer nor varied its own at that meeting. 6. Management rights The Union's initial proposal set forth a brief "Manage- ment Functions" provision. In the course of the second meeting, as Orman anticipated, Smith indicated Respon- dent's intention to submit a more comprehensive provision, specifically to limit the arbitrability of management rights in light of the Steelworkers trilogy."' Respondent's initial management rights proposal was offered on December 17, 1975 (G.C. Exh. 18(a)). Included within the lengthy proposal were provisions retaining as exclusive functions of management (omitting the less controversial items), the right to: subcontract work, change work schedules, impose discipline up to and including discharge for just cause,' 2 rescind or modify plant safety and work rules, and to move, sell, or consolidate the plant or any portion of it and to separate the employees as a result thereof. As noted in the earlier discussion on arbitration, the establishment of a new classification and its wage rate was reserved solely to management and was excluded from both the grievance procedure and the Union's right to strike. The Union voiced objection to the reference to subcon- tracting, pointing out that, unless it was limited to situations wherein the unit employees could not do the work, Respondent could diminish the unit. They objected to the unilateral setting of work schedules and indicated that they had no objection to the provision on work and safety rules, provided that the term "reasonable rules" was added to the proposal. At least some of these objections were repeated by the Union when they met with Watson on January 7. In particular, Watson recalled Orman objecting to the reference to subcontracting and Respondent assert- ing that, if it could get another company to do the work for less, it would be to everyone's advantage. In his testimony, Watson pointed out that Respondent regularly subcon- tracted work. This fact had not been pointed out to the Union in negotiations. On January 19, Respondent resubmitted its management rights article (G.C. Exh. 21(b)). Added was an introductory paragraph stating: disputes was set forth. The Warrior & Gulf case specifically involved the question of the arbitrability of a grievance over subcontracting which the employer had contended was not arbitrable under a contract provision excluding from arbitration matters which were "strictly a function of management." i2 A separate provision, contained in the discipline and discharge article (G.C. Exh. 18(1)), reserved to the Company the right to determine the degree of discipline to be imposed. 566 GULF STATES MANUFACTURERS, INC. This Agreement shall not affect or limit any of the functions of responsibilities of the Company or its management and shall not restrict in any way the management of the Company or the exercise of management prerogatives, provided that such rights residual with the Company shall not conflict with the provisions of this Agreement. Also added was a sentence submitting questions regarding new classifications to the grievance procedure, but not the arbitration or strike provisions thereof. Orman and Watson discussed the proposal, with Orman protesting that management was taking all the Union's rights away. He objected to the Company's right to change work hours and schedules, indicating a fear that Respondent would set unreasonable work periods. He again voiced agreement to the Company's setting of safety and work rules, if the term "reasonable" were added, and objected to the exclusion of company establishment of new jobs from the total grievance procedure. To this, according to Orman, Watson responded, "We may face some problems down the road. It does not look good. The Company is scrambling for work and we have to get our work out for our customers." On January 28, Respondent agreed to add "reasonable" to the language on safety and work rules. It was added in the proposal Respondent furnished on February 10. The Union, at its request, was given a copy of Respondent's "Conduct Policy" and some discussion was held thereon. The Union objected to the right of the company physician to unilaterally dismiss an employee for medical reasons without a second opinion. They also disagreed with the language therein permitting Respondent to unilaterally change, initiate, or eliminate rules. Orman recalled that he also questioned the meaning of the last sentence of section l(b) of the Company's management rights article, which stated, "These rights shall be exercised in good faith with due regard for the reasonable rights of the employees." Watson allegedly stated that Respondent would apply it as they saw fit. At some point, Orman was also told that that sentence pertained to the entire subparagraph. As noted, on February 13, the Union presented a 5-point proposal for settlement. That proposal contained no objection to Respondent's management rights article. On March 17, the Union offered to accept that article in return for checkoff irrevocable for I year. Neither offer was accepted. At the meeting of April 6, according to a letter from Smith to Orman confirming the details of that meeting, Smith gave Orman a copy of the management rights article found in N.LR.B. v. American National Insurance Co., 343 U.S. 395, 398 (1952). He offered Orman his choice. At either the April 6 or May 14 meeting, Orman stated that he would accept that clause if they could agree on arbitration and a no-strike clause which, he pointed out, were present in American National Insurance. No agreement was reached. Smith's letter relative to the April 6 meeting asserted that Respondent had agreed to the Union's right to strike over new job classifications without waiting until contract expiration, in the meeting of January 27. The testimony regarding that meeting does not so indicate. Neither does Respondent's proposal of February 10, (G. C. Exh. 32(b)), which retained the earlier language. Orman believed it was at the meeting of April 6 that Respondent withdrew its opposition to the Union's right to strike over new job classifications at the conclusion of the grievance procedure. 7. Seniority General Counsel contended, essentially, that Respondent bargained regressively in regard to seniority. Respondent's practice, prior to the advent of the Union, provided for a 120-day probationary period with no insurance coverage until the completion thereof, and retention of seniority while on layoff for 30 days with no right to recall from layoff. The Union's initial proposal called for a probationary period to 60 days, retention of seniority for 48 months while on layoff and loss of seniority for failure to return from layoff within 5 days of notice of recall or, 10 days if the employee provided written notice of his intention to return (Resp. Exh. 8, attachment 9-10). Respondent's first seniority proposal (G.C. Exh. 18(b)), provided for a continuation of the 120-day probationary period, and loss of seniority after a continuous layoff of I year, continuous absence because of disability or illness for the lesser of the period of the employee's seniority or I year, or failure to return to work within 4 days of notification of recall from layoff (or 7 days with company approval). Somewhat inconsistently, the leave of absence proposal (G.C. Exh. 18(d)), provided that an employee would be granted a leave of absence of up to 2 months if unable to work because of illness or injury. Respondent's proposal was discussed in the meeting of December 17, with the Union basically asserting positions consistent with its proposal. On loss of seniority following an absence due to illness or injury, they sought a maximum period of 2 years. Orman pointed out the inconsistency between Respondent's leave of absence provision and the seniority article. In its January 7 proposal regarding leave of absence (G. C. Exh. 20(g)), Respondent proposed that employees be eligible for leave of absence of 30 days up to I year for illness or injury. The Union continued to argue for a 2-year maximum. Respondent's proposal regarding leaves for illness or injury remained unchanged in its next offer (G.C. Exh. 23(g)), presented on January 27. However, the seniority proposal made on that day (G.C. Exh. 23(f)), provided for loss of seniority after continuous layoff of 2 months and failure to report for work within 3 days of notification following layoff. Respondent's proposal would also reduce the probationary period to 100 days. The Union offered to modify its request from a 60-day to a 90-day probationary period. They pointed out the regression from 4 days to 3 on return from layoff and from I year to 2 months on loss of seniority when on layoff. Orman asked Watson whether the latter was not a mistake. Watson referred the question to Jackson. According to Orman, Jackson said that there had been no mistake, the change had been made because the Union had pointed out the inconsistencies between the leave of absence article and the seniority article. Orman 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointed out, without response, that they remained inconsis- tent as changed.13 On February 10, Respondent indicated that a reduction of the probationary period to 90 days for seniority, but not insurance purposes, was one of three items on which it would move if the Union accepted the remainder of its proposal. This offer was not accepted; neither was the Union's subsequent offer, as part of its 5-point proposal, to go back to Respondent's initial offer of 1-year retention of seniority following layoff. 8. Wages and the wage increase On January 20, Respondent asked the Union to make its wage proposal at the next meeting. On January 27, Orman asked when the employees had last received a raise and Jackson told him that the employees had received approxi- mately 7.5 percent in August or September 1974. Orman, noting the period since the last raise, orally proposed an 18 percent across-the-board increase for the first year, with wage reopeners or adjustments tied to the cost of living in the second and third years. Watson responded that he had hoped for a more realistic proposal. He rejected the concept of wage reopeners or subsequent raises tied to figures released by a government agency which that agency might stop furnishing. Respondent presented its initial wage proposal on January 28. It began by giving the Union a list of 22 employees who, it had determined in 1974, were in higher classifications than they belonged in. The proposal was to reduce the wages of the 22 by amounts varying from 5 cents to 89 cents per hour. 4 For the remaining employees it proposed approximately 5 percent in the first year and across-the-board increases of 5 percent in the second and third years. The proposal, (G.C. Exh. 26), added a new labor grade i, for janitors.)5 The Union returned with a proposal for a 17-percent increase in the first year and 6 percent in each of the second and third years. On January 29, Respondent made its second wage proposal, setting forth the wage for each grade and step in each of 3 years. The offer for the first year was approxi- mately 1 percent lower, in hourly rates, than the prior offer. Raises of approximately 5 percent were offered for the 13 Jackson testified that he told Orman that Respondent's initial proposal had been in error, it had intended to offer a 2-month period for retention of seniority, to be consistent with its medical leave of absence proposal and that it was revised to correct that mistake. Noting that the inconsistency remained after the alleged correction, and their comparative demeanors, I credit Orman. 1" According to the uncontradicted testimony of Orman, when Respon- dent gave the Union this list, Jackson stated these 22 individuals had been told in 1974 that they would receive no increases above their present rates, but would not suffer wage reductions. 'S The first year proposal, more specifically, provided for an increase from $2.27 to $2.30 per hour for all steps of grade 1, maintained the existing $2.51 rate through all steps of grade 2, kept the rates the same in steps I and 2 of grade 3, and offered raises of about 5 percent in all remaining grades and steps. There were 74 employees at the top step of their labor grades; 43 were in the top step of labor grades 5 and 6. There were 14 employees in the first step of grade 2, and 22 in various other grades and steps. "' According to the proposal, the formula would have produced a payment of 3.88 percent of base pay in the quarter offered, as man-hours per ton for that quarter. so far, was 11.6. In fact, for the quarter ending March 1976, employees received productivity pay of 1.65 percent. According to Resp. Exh. 31, monthly man-hours per ton had ranged from approximately second and third years. Additionally, Respondent offered a productivity plan which would have provided a quarterly payment, consisting of a percentage of the employees' earnings for the quarter, based upon the number of man- hours required for each ton of shipped buildings. The payments ranged from .30 percent at 12.9 man-hours per ton to 9 percent if the required man-hours were reduced to 9.7 per ton or less.16 Respondent continued to propose the reduction in pay of the 22 employees. The Union rejected Respondent's offer, noting that the wage proposal ap- peared to be a regression from the prior offer and opining that the productivity system was too speculative and involved too many factors, such as machine breakdowns and shipping dates, over which the employees had no control. The Company made its third and final wage offer on January 30. (G.C. Exh. 31 (a)-(c)) It provided approxi- mately 5 percent for most grades in the first year, 4 percent in the second and third years, and productivity pay. Respondent also orally proposed to "red-circle" rather than reduce the wages of the 22 employees. Orman objected and pointed out that the increases were less than stated because the rate for grade I employees remained the same.17 He told the Company that the Union was willing to give on wages and language but was not willing to give up all on either. Watson stated that this was Respondent's top offer on money and asked that it be presented to the membership. He asked whether the committee would recommend it and was told that they would not, because there were too many unresolved issues and too little money. At a union meeting held on February 1, Orman presented Respondent's offer; it was rejected. In the meeting of February 10, the Union received a document, (G.C. Exh. 32(c)), a wage proposal referring to wages, and progressions as set forth on an exhibit. The Union never received the exhibit. According to Watson, the offer improved the productivity formula.'s At the last meeting before the strike, February 13, the Union included a wage increase as part of its 5-point offer for settlement. In explicating its proposal, Orman told the Company that the Union was asking for 9 percent in the first year and 6 percent in the second and third years. Orman indicated that the Union would accept the 17 to 27, and averaged 19, in 1974. The range was from about II to 33 in 1975, with an average of 13 or more. From January through August 1976, man-hours per ton ranged from a monthly low of about 9 (in February, when the strike occurred) to about 15, averaging perhaps 13 to 14. No productivity pay was earned in the second quarter, ending June 30, 1976. 17 Examination of the offer reveals that Respondent, except for offering an increase of approximately 5 percent at grade 2 and steps I and 2 of grade 3, had reoffered its January 28 first-year wage proposal. Its proposal for the second year was virtually the same as had been made on January 29; grade 2 showed a 2-cent-per-hour improvement and a few other steps were improved or decreased by I or 2 cents. The third-year proposal, as compared to the wage offer for the third year in the January 29 proposal, offered improvements of 3 cents per hour to grade 2 and step I of grade 3 ( 18 employees as of the date of the offer) and decreases from the prior offer of 2 cents to 6 cents per hour in all remaining steps and grades, encompassing 88 employees. is In this regard, I note that the productivity pay received by employees in the first quarter of 1976 was 1.65 percent. None of the proposals received by the Union provided for productivity payments in that amount, leading me to conclude that, as Watson testified, Respondent had intended to improve the productivity formula on February 10. 568 GULF STATES MANUFACTURERS, INC. productivity pay if Respondent wanted, but was not asking for it. As noted, Watson rejected Orman's proposal and stated that Respondent's final offer was on the table. The employees went on strike on the following morning. On February 16, Respondent's general manager, Clayton Richardson, wrote the Union and, asserting that an impasse in negotiations had been reached, advised them that its last wage offer had been implemented. All employees, nonstrikers and strike replacements, received the wage increases immediately. When the striking employ- ees returned, they also received the wage increases. According to Jackson, the "wage freeze" was also lifted on February 16. The clock began running on progression raises once again. 9. Conclusions to the refusal to bargain Section 8(a)(5) of the Act establishes a duty on the parties to collective bargaining, "to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement." N.LR.B. v. Herman Sausage Compa- ny, Inc., 275 F.2d 229, 231 (C.A. 5, 1960). As the Supreme Court stated the principle in N.L.R.B. v. Insurance Agent Union AFL-CIO [Prudential Insurance Co.], 361 U.S. 477, 485 (19601): Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining agree- ment. This obligation compels neither party to agree to a proposal or make a concession. N.LR.B. v. American National Insurance Co., 343 U.S. 395 (1952). However, the Board is not precluded from considering, and "does consider the totality of the employer's actions to assess its motivation in determining whether it was really engaging in surface bargaining with no genuine intention to reach agreement." Tomco Communications, Inc., 220 NLRB 636, 637 (1975). The Board may, and does, examine the contents of the proposals put forth, for, "if the Board is not to be blinded by empty talk and by mere surface motions of collective bargaining, it must take some cognizance of the reasonableness of the position taken by an employer in the course of bargaining negotiations." N.LRB. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 134 (C.A. 1, 1953), cert. denied 346 U.S. 887. It is in this context that I have considered the course of the bargaining. This consideration leads me to conclude that Respondent has failed to fulfill its statutory obligation and was, as General Counsel alleged, engaging in surface bargaining. The management rights clause, which Respondent proposed and adhered to throughout negotiations,' 9 required that the Union yield all bargaining rights on such '9 Respondent adhered to its proposal at least until April 6, when Smith offered the management rights clause excerpted from American National Insurance, supra. Orman would have accepted that offer had it included the grievance and arbitration machinery to which the employer in American National Insurance was responding when it offered that clause. basic items as subcontracting, discipline and discharge, the creation of new job classifications and the wage rates applicable thereto (discipline and job classifications were subject to the limited grievance procedure, discussed infra), scheduling of hours, the closing or consolidation of part or all of the plant, the separation of employees if the plant were to be partially or totally closed or consolidated, and the setting of safety and work rules. Indeed, Respondent's attempt to shut the Union out of meaningful participation in decisions affecting working conditions is graphically demonstrated by Watson's response to the Union's request for recognition of its safety committee, to wit, that this was Respondent's responsibility and it would appoint a committee, which might or might not reflect union representation. In this latter regard, Respondent's bargain- ing stance was substantially identical to that of the employer in San Isabel Electric Services, Inc., 225 NLRB 1073, 1080 (1976). Therein, the Board concluded that the proposed contract, taken as a whole, "would strip the Union of any effective method of representing its members on the issues of safety and work rules . . ." excluding it "from any participation in decisions affecting important conditions of employment ... thus exposing [the employ- er's] bad faith." Similarly, Respondent's attempt to exclude the Union from meaningful participation in the role to which the statute entitles it is revealed in its representation, grievance and arbitration, and Christmas bonus proposals. In regard to the latter, it is clear from the regularity of these annual payments and from the undisputed nexus between the employment relationship and receipt thereof, that these were "wages" and thus mandatory subjects of bargaining. Gas Machinery Company, 221 NLRB 862 (1975); Nello Pistoresi & Son, Inc. (S & D Trucking Co., Inc.,), 203 NLRB 905 (1973). Respondent's proposals would have excluded the Union from anything more than notification that these wage items were going to be discontinued. Respondent's representation proposal prohibited stewards, without writ- ten permission, from investigating grievances during the "normal work day" and "normal work shift"20 or on the plantsite. It is difficult to conceive of restrictions which would more inhibit the filing and investigation of griev- ances. Assuming that a grievance (narrowly defined by Respon- dent) surfaced notwithstanding the foregoing restrictions, its future, and the Union's role therein, would be narrowly proscribed. The Union was excluded from the first step of the grievance procedure and was required, under the proposal, to strictly adhere to the time requirements or suffer waiver. Arbitration was to be voluntary, would impose heavy and uneven financial burdens on the Union, and the Union's right to strike rather than to arbitrate was not at its own option. It required, and was dependent upon, Respondent's refusal to arbitrate. The right to strike was further encumbered by notice provisions which could seriously weaken the strike as an alternative economic weapon. The notice provision would have required not 20 Presumably, these terms would include lunch hours and breaktime. See Essex International, Inc., 211 NLRB 749 (1974); The J. L Hudson Company, 198 NLRB 172 (1972). Even more than the term "working hours," "normal work shift" and "normal work day" imply all the time between clocking in and clocking out. 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only notification of the intent to strike, but of the specific date that the strike was to commence. It was thus more stringent than the strike notice requirement incorporated into the Act by Section 8(g) for the health care industry. Moreover, Respondent offered no special justification (such as is present in the health care industry) why it would need such specific notice. As the Board stated in Tomco Communications, supra: It is well established that an employer's insistence upon a management-rights clause does not, in and of itself, constitute a violation of Section 8(aX5) of the Act. [Citing American National Insurance, supra.] However, the nature of an employer's proposals on management-rights and other terms and conditions of a collective-bargaining agreement are material factors in assessing the employer's motivations ... In the instant case, as in Tomco Communications, an "evaluation of all the Respondent's proposals herein clearly shows that Respondent was determined to force the Union and its members to abandon their right to be consulted regarding practically any and all disputes that might arise during the term of the contract . . . to waive their statutory rights to bargain collectively." Even where it could bargain, in those areas not excluded from the grievance procedure, its rights were closely circumscribed by the grievance, arbitration, and no-strike provisions. Other elements herein evidence Respondent's bad faith. Respondent's 8(a)(1) activity commenced with the election and continued throughout the period of negotiations. Its representatives made statements indicating their animus toward the Union, their desire to be rid of the Union, and their belief (or intention) that the Union's presence would be futile. Such conduct is clearly relevant to a determina- tion of Respondent's good or bad faith. M.F.A. Milling Company, 170 NLRB 1079 (1968). Moreover, Respondent's conduct at the bargaining table bespeaks of a kind of game playing inconsistent with good-faith bargaining. Noted particularly in this regard was Watson's insistence upon twice (January 6 and 19) thoroughly reviewing the negotiations which had occurred prior to his entry therein, notwithstanding that he had been left detailed notes by his predecessor, Respondent's assertion following agreement to a preamble that included the Local Union's name to the effect that it would be inappropriate for the preamble to name the Local, Watson's rejection of a pension plan that would not vest within a year "because the employees might vote the Union out," the time wasted arguing over payment for bulletin boards while Respondent had a new (and generally acceptable) proposal on that subject all prepared, and Respondent's removal of its proposals from the table and refusal to resubmit them after, and because of, the strike, for approximately 6 weeks. Moreover, the state- ments of Respondent's representatives in the poststrike meetings, minimizing the Union's concessions and indicat- ing that it had no room to move on its own proposals, revealed that Respondent was not seeking bargaining at that time, but total capitulation. Respondent's proposal on checkoff reveals the same kind of gamesmanship. It objected to irrevocable checkoff because it was unsure that the employees had actually signed, notwithstanding that the Union's proposal would have indemnified it for any improper deductions. When the Union offered an additional assurance, i.e., signing in the personnel manager's office, Respondent was ready with another objection, one that further revealed its animus, i.e., that it did not wish to appear to promote the Union. Respondent's reliance upon H.K. Porter Company, Inc., Disston-Danville Works v. N.LR.B., 397 U.S. 99 (1970), is misplaced. The Board, at 153 NLRB 1370 (1965), and the circuit court, at 363 F.2d 272 (C.A.D.C., 1962), held that the employer's refusal to bargain about checkoff was not made in good faith, but was done solely to frustrate the making of collective-bargaining agreement. That issue was not before the court. The Supreme Court only held that the Board may not remedy such a refusal to bargain by requiring the parties to agree to a specific contract term. See Justice Harlan's concurring opinion, 397 U.S. at 109. See also Midwest Casting Corporation, 194 NLRB 523, 532, fn. 33 (1971). Like the Board and the circuit court in Porter, I conclude that Respondent's opposition to irrevocable checkoff was intended to frustrate agreement. In regard to seniority, Respondent gave and then took away its initial proposal permitting I-year retention of seniority during layoff or absence due to illness, a significant improvement. When shown that its medical leave of absence proposal inconsistently provided for only 2 months, Respondent reduced the retention of seniority to 2 months and eliminated absence due to illness from the seniority clause. It purported to take this action in the interest of consistency, yet changed the medical leave of absence provision to permit up to a year's absence. Finally, in assessing the totality of Respondent's actions, it is relevant to consider its wage proposal. While on the surface appearing to have made three successive offers, analysis reveals that the offers were essentially the same. Respondent, as Jackson admitted, knew from the outset what it intended to offer and framed its successive proposals to reach that point. Basically, the three wage offers juggled the same moneys, and the last offer would have left most of the employees with a lower wage at the end of 3 years than the earlier offers. The productivity plan, ostensibly providing up to 9 percent in wage increases, in reality offered little if the employer's experi- ence with man-hours per ton of product shipped in the past 3 years is to be any guide. The Act, Section 8(d), provides that "the obligation [to bargain collectively] does not compel either party to agree to a proposal or require the making of a concession." However, it is both permissible and necessary to examine the totality of the employer's actions to determine motiva- tion. My examination of that totality leads me to conclude that, as in Tomco Communications, supra, Respondent's proposals, from first to last, would have required the Union to abdicate its representational rights and duties, compen- sating the employees essentially not at all for their loss. I cannot accept the contention that Respondent, in good faith, believed that such proposals could be accepted by the 570 GULF STATES MANUFACTURERS, INC. Union or intended to present proposals which stood any chance of acceptance.2 Accordingly, I conclude that Respondent has failed to bargain in good faith and has thereby violated Section 8(a)(5) and (1) of the Act. Additionally, I conclude that Respondent violated Section 8(a)(5) when it unilaterally removed the wage freeze and instituted the proposed wage increase on February 16. Had Respondent implemented that last offer after a valid bargaining impasse had been reached (and putting aside the question of whether the offer as implemented had been made to the Union when the facts show that the final form of the productivity plan was never furnished), Respondent's action would have been lawful. Midwest Casting Corp., supra. No such impasse can exist in the presence of bad-faith bargaining, such as is found herein. Taft Broadcasting Co., 163 NLRB 475 (1967). E. The Strike On February 14, 1976, in apparent frustration over the course of the bargaining,22 the Union struck Gulf States. As I have found that Respondent bargained in bad faith prior to the strike, and unlawfully instituted the wage increase at the beginning thereof, I conclude that the strike was an unfair labor practice strike from its inception. General Drivers and Helpers Union, Local 662, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Rice Lake Creamery Co.] v. N.L.R.B., 302 F.2d 908 (C.A.D.C., 1962). As unfair labor practice strikers, the employees who went on strike were entitled to reinstatement to their former positions or, if that job no longer existed, to substantially equivalent positions, upon their unconditional application to return to work. Mastro Plastics Corp. v. N.LR.B., 350 U.S. 270 (1956). Orman made an unconditional offer to return, on behalf of all strikers, on February 20 and repeated it on February 21, 1976. The employees appeared at the gates, ready to work, on Monday, February 23, 1976. However, none was reinstated before March 3, when 19 were reinstated, some were reinstated on March 9, and nearly all of the remainder were reinstated on April 12. Several had not yet been reinstated by the time of this hearing. While there were still unreinstated unfair labor practice strikers, Respondent had and has retained those hired as strike replacements. At least for some period of time after the unconditional offer to return to work, Respondent also retained in the strikers' jobs employees from nonunit positions who were assigned there temporari- ly. Moreover, the strikers who have returned to work have not been returned to their former positions, shifts, or rates of pay. Some may have been denied insurance coverage 21 That other unions, in other circumstances, might have accepted some of these terms, or that this union indicated that it would accept some of them if it received something in return, is no evidence of good faith. San Isabel Electric. supra. 22 Although Orman was careful to bring out at the February 13 meeting evidence of the 8(a)(I) violations occurring since the election, so as to attempt to ensure a finding that this was an unfair labor practice strike, I cannot conclude that those violations substantially contributed to the cause or duration of the strike. 23 Respondent has contended that its business was off in the period following the strike and that, but for the strike, it would have had to lay off during the period after they were entitled to reinstatement but before they were reinstated. Accordingly, I find that, by failing to properly reinstate its employees who were unfair labor practice strikers, Respondent has violated Section 8(a)(3) and (1) of the Act.23 F. Poststrike 8(a)(1) Kerry Medders participated in the strike and returned to work under Supervisor Doyle Nowell, on March 3, 1976, receiving a 5-percent wage increase at that time. After about 3 weeks, he noticed that other employees were receiving raises. He asked Nowell about this and Nowell told him that he been caught in a freeze at a bad time and that there was nothing he could do about it. Nowell then told him that it was his right to go on strike but, "if I had stayed and not gone on strike. . . I could have taken a job at a higher lever of pay and in 30 days been getting that pay." I find nothing unlawful in this remark. During the strike, employees were promoted to higher paying jobs and, even under the Company's preexisting freeze policy, employees who were promoted received the wage paid the higherjob after 30 days.24 About March 16, Supervisor Everett Pepper told strike replacement Ralph Borden "that if any of the boys was to ask me about joining the Union, or to mess with me in any way, don't pay any attention to them and to come and tell him." Pepper was not called to deny this statement. About mid-April, according to Borden, Wick Malone, the produc- tion superintendent, asked him if any of the employees had asked him to join the Union. Malone told him that, if they did, he should tell them that he did not know if he had a permanent job. Malone went on to tell Borden that, if he did join, he wouldn't have a job because the Company did not want the Union in there. Fred Hill, who had been hired during the strike and who, at the time of the hearing was one of Respondent's supervisors, related a similar conversation with Malone. According to Hill, in early April Malone asked him if the employees had been bothering him about the Union. Hill said "No." Malone told him that, if they did, he should put them off by saying that he might not complete his probationary period. Malone went on to say that all the Union wanted was his name on a card, and cared nothing for him. He concluded by telling Hill that it had been since September "and it looks like they would understand something .... They haven't done any good so far... It would not do them any good." Malone denied speaking to Borden about the Union and testified that his conversations with Hill related to reporting or preventing alleged harassment by the former some employees. Be that as it may (and I note that it appears to be inconsistent with the lifting of its freeze on February 16). it is clear that Respondent hired strike replacements who continued to work during and after the strike. Thus, at least some of the strikers could have been reinstated immediately following the strike. had Respondent complied with its legal obligations. The precise date on which each striker would have been reinstated cannot be determined from this record and is, at any rate. a matter for the compliance stage of this proceeding. 24 While I have found the strike to be an unfair labor practice strike. I do not deem the legal effects of that finding sufficient to make Nowell's remark unlawful. 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers. Noting particularly that Hill was a supervisor testifying contrary to his employer's interest-a factor highly indicative of credibility-that he did not appear eager to testify, that the testimony of Hill and Borden were so similar as to lend corroboration to both of them, and finding both Hill and Borden to have presented more convincing demeanors then Malone, I credit their versions of the conversations. Accordingly, I find that by the directions of Pepper to Borden to report solicitations by other employees and of Pepper and Malone to Borden and Hill to avoid joining the Union, Malone's interrogation of Borden as to whether he had been asked to join the Union and his threat of job loss if Borden joined, and Malone's implied statement that union representation would be futile, Respondent has violated Section 8(a)(1) of the Act. ADDITIONAL CONCLUSIONS OF LAW 1. By interrogating employees concerning their union activities and the union activities of other employees, by threatening to change work rules, withdraw the assistance of supervisors, lay off employees, or withhold wage increases because of the employees' union activity, by soliciting activity to decertify the Union, and by threaten- ing employees that their union activity will be futile, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights under Section 7 of the Act and has violated Section 8(a)(l) of the Act. 2. By laying off the following-named employees be- tween September 15, 1975, and October 1, 1975, because of their union activity, Respondent has discriminated against them in violation of Section 8(aX3) and (1) of the Act: Harry Vaughn Jack Griffin Joe Kimbrough Bruce Davis Willie Jackson Ed Thompson Robert Chandler Oddie Harris Fred Williams Willie Buford Odell Robinson John Gandy Steve Carmichael Jimmy Harrelson Johnny Oswalt Roy Sims L. A. Putt Bobby Benton Turner Petty Gary Chandler George Chandler Ulysses Gandy Charlie McCarter David Wentworth Otis Hogan Jimmy Collins Jeff Harrelson G. J. Jackson Richard Harris John Lancaster Robert Chandler Steve McBride Joe Malone Willie Buford William Halbert Albert Nichols Aaron Mitchell Louie Putt Thomas Bowen Charles Smith James Billups Edgar Thompson John Swindol Sammy Wright Ottis Latham Larry Michols Norman Allen Oddie V. Harris Robert Vaughn Dwight Johnson James Lewis Harry Vaughn Steven Carmichael Thomas Bowen Joe Douglas Gandy Jimmy Harris Willie Hamilton John Gandy Tony Hillhouse Willie Holmes Bobby Medders Kerry Medders Frank Sharp Richard Harris Fred Williams Joe Kimbrough George Carrithers Karl Harris Willie Mosley Joe Gandy Phillip Quinn Romia Ford Roger Perrigan Ronnie Sartor Carl Carrithers William Harrelson Roy Sims James Holland Jerry Jones Bobby Pennington Johnny Trice Lenon West Jessie Stallings Johnny Oswalt Gerald Whatley James Allred Odell Robinson Thomas Hillhouse Willie Jackson Willis Mark Turner Phillip Whatley Thomas McCrory Phil Parker M. L. Perkins Woodrow Crowley James Langley Roosevelt Tate Elbert McGee Royce White Johnny White Bruce Davis Jack Griffin Clinton Johnson Jimmy Oswalt Turner Petty 3. The strike which began on February 14, 1976, was caused and prolonged by Respondent's unfair labor practices and was an unfair labor practice strike from its inception. 4. An unconditional offer to return to work was made by the Union on behalf of all the unfair labor practice strikers on February 20, 1976. 5. By failing and refusing to timely reinstate the following-named unfair labor practice strikers to their former or substantially equivalent positions, Respondent has violated Section 8(a)(3) and (1) of the Act: 25 John Bell William Owens Luther Bishop Thomas R. Smith 25 These names appear as alleged in the complaint and G.C. Exh. 51. The record establishes in addition that Johnny Oswalt, Richard Owen Harris, Jeff Harrelson. Hugh Christian and Charles Holland apparently received 6. At all times material herein, the Union has been the exclusive collective-bargaining representative of Respon- dent's employees in the following unit appropriate for the purposes of collective bargaining: All production and maintenance employees, plant clerical employees, full-time and regular part-time truckdrivers and leadmen employed at Respondent's Starkville, Mississippi plant, excluding all office clerical employees, draftsmen, guards, and supervisors as defined in the Act. 7. Since on or about November 21, 1975, and continu- ing thereafter to date, Respondent has, by its overall course offers of reinstatement between March II and April 18, 1976, but did not return to work for Respondent. The record does not reflect whether they declined offers of reinstatement to their former positions of shifts. 572 GULF STATES MANUFACTURERS, INC. of conduct in the contract negotiations, and by its unilateral implementation of a wage increase on February 16, 1976, refused to bargain collectively in good faith concerning wages, hours of employment, and other terms and conditions of employment, in violation of Section 8(a)(5) and (1) of the Act. 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 that Respondent has engaged in unfair labor practices in violation of Section 8(aX)(1), (3), and (5) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. With respect to the overall bad faith exhibited by Respondent during the course of negotiations, I shall recommend a general bargaining order. Inasmuch as the unit employees have been deprived of the benefits of the certification year, said year shall be deemed to begin on the date that Respondent commences to bargain in good faith. It having been found that Respondent unlawfully laid off certain employees, it will be recommended that Respon- dent make each of these employees whole for any loss of earnings suffered as a result of this layoff. It having been found further that Respondent failed to properly or timely reinstate unfair labor practice strikers to their former or substantially equivalent positions, it will be recommended that Respondent offer each of these employees immediate reinstatement to his or her former position (including shift assignment), or, if such job no longer exists, to a substantially equivalent position, without loss of seniority or other rights or privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings, including insurance benefits, he or she normally would have earned from February 25, 1976 (5 days after the unconditional offer to return to work), to the date of Respondent's offer of reinstatement, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In view of the seriousness of the violations involved, I shall recommend a broad remedial order. N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d 523, 536 (C.A. 4, 1941). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: 26 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. ORDER 26 The Respondent, Gulf States Manufacturers, Inc., Starkville, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of their Section 7 rights by interrogating them concerning their union activities and the union activities of other employees, by threatening to change work rules, withdraw the assistance of supervisors, lay off employees, or withhold wage increases because of the employees' union activities, by soliciting activity to decertify the Union, or by threatening employees that their union activity would be futile. (b) Discouraging membership in International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, by laying off, refusing to reinstate or return to work, or otherwise discriminating against employees in any manner with regard to their hire and tenure of employment or any term or condition of employment. (c) Refusing to bargain in good faith with the aforesaid Union as the certified collective-bargaining representative of the employees in the following described unit, by engaging in surface bargaining with no intention of reaching agreement or by making unilateral changes in wages or other terms and conditions of employment: 27 All production and maintenance employees, plant clerical employees, full-time and regular part-time truckdrivers and leadmen employed at Respondent's Starkville, Mississippi plant, excluding all office clerical employees, draftsmen, guards, and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which, it is found, will effectuate the purposes of the Act: (a) Offer each of the former unfair labor practice strikers who have not been reinstated, or who were reinstated to other than their former positions of shifts, immediate reinstatement to his or her former position and and shift or, if such job no longer exists, to a substantially equivalent position, without loss of seniority or other rights or privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings he or she would normally have earned from February 25, 1976, 5 days after the unconditional offer to return to work was made, to the date of Respondent's offer of reinstatement, in accordance with the provision of the section of this Decision entitled "The Remedy." (b) Make whole all former unfair labor practice strikers for any losses they may have suffered because of the cancellation of their health insurance between the time of 27 Provided, however, that nothing herein shall be construed as requiring Respondent to vary or abandon any economic benefit heretofore estab- lished. 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unconditional offer to return to work and the date of their actual reinstatement, in accordance with the provi- sions of the section of this Decision entitled "The Remedy." (c) Make whole the following-named employees for the loss of earnings they suffered as a result of the discrimina- tory layoffs between September 15, 1975, and October 1, 1975: Harry Vaughn Jack Griffin Joe Kimbrough Bruce Davis Willie Jackson Ed Thompson Robert Chandler Oddie Harris Fred Williams Willie Buford Odell Robinson John Gandy Steve Carmichael Jimmy Harrelson Johnny Oswalt Roy Sims L. A. Putt Bobby Benton Turner Petty (d) Bargain in good faith with the aforesaid Union, upon its request, as the exclusive representative of the employees in the the appropriate bargaining unit, and embody in a signed agreement any understanding reached. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amount of backpay due under the terms of this recommended Order. (f) Post at its Starkville, Mississippi, facility, copies of the attached notice marked "Appendix." 2 8 Copies of said notices, on forms furnished by the Regional Director for Region 26, after being duly signed by the Respondent's authorized representative, shall be posted 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint, as amended, be any hereby is dismissed insofar as it alleged unfair labor practices not specifically found herein. 28 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing during which all parties were given an opportunity to present evidence and argument, it has been determined that we have violated the law by committing unfair labor practices. In order to remedy such conduct we are being required to post this notice. We intend to comply with this requirement and to abide by the following commitments. The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a freely chosen representative To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything which interferes with these rights. WE WILL NOT question our employees about their union activity. WE WILL NOT threaten our employees with layoff, denial of wage increases, changed work rules, or loss of assistance from their supervisors because of their union activity, or with statements that their union activity will be futile. WE WILL NOT solicit employees to decertify the Union. WE WILL NOT lay off, refuse to reinstate or to return to work, or discriminate against employees in any other manner with regard to their hire or tenure of employ- ment or any term or condition of employment because of their activities on behalf of or sympathies or support for the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other union. WE WILL NOT unilaterally, and without consultation with the above-named Union, give our employees wage increases. Provided, however, that nothing herein shall be construed as requiring us to abandon or rescind any wage increases we have previously given. WE WILL make the following-named employees whole for any loss of earnings they suffered as a result of our discriminatory layoff of them on various days between September 15, 1975, and October 1, 1975. Harry Vaughn Jack Griffin Joe Kimbrough Bruce Davis Willie Jackson Ed Thompson Robert Chandler Oddie Harris Fred Williams Willie Buford Odell Robinson John Gandy Steve Carmichael Jimmy Harrelson Johnny Oswalt Roy Sims L. A. Putt Bobby Benton Turner Petty WE WILL offer all of the former unfair labor practice strikers who have not been reinstated, or who were reinstated to other than their former positions or shifts, immediate reinstatement to their former position or shift or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniori- 574 GULF STATES MANUFACTURERS, INC. ty or other rights or privileges, discharging if necessary any replacements, and WE WILL make them whole for any earnings or insurance benefits lost as a result of our refusal to properly and timely reinstate them. WE WILL bargain collectively and in good faith upon request with the above-named Union as the exclusive representative of the employees in the appropriate unit described below and embody any understanding reached in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees, plant clerical employees, full-time and regular part-time truckdrivers and leadmen employed at our Stark- ville, Mississippi plant, exluding all office clerical employees, draftsmen, guards, and supervisors as defined in the Act. GULF STATES MANUFACTURERS, INC. 575