Dynatron/Bondo Corp.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750 Dynatron/Bondo Corporation and Union of Nee- dletrades, Industrial and Textile Employees, AFL–CIO. Case 10–CA–29735 April 3, 2001 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND WALSH On February 25, 1998, Administrative Law Judge Keltner W. Locke delivered a bench decision and certi- fication in this proceeding. The General Counsel, the Charging Party, and the Respondent each filed excep- tions and a supporting brief, and the Respondent filed an answering brief. On September 30, 1998, the National Labor Relations Board, by a three-member panel, issued an Order re- manding proceeding to administrative law judge.1 The Board, finding that the bench decision lacked sufficient rationale, ordered the judge to prepare a supplemental decision with a “written analysis of the facts and legal precedent relevant to all the issues presented in this case.” On April 15, 1999, the judge issued the attached sup- plemental decision in this proceeding. The Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief. The Board has delegated its authority in this proceed- ing to a three-member panel. The Board has considered the bench decision, the supplemental decision, and the record in light of the exceptions to the bench and supplemental decisions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as explained below and to adopt the recommended Order as modified below.3 1 326 NLRB 1170. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Charging Party’s request for additional remedies is denied. 3 The judge inadvertently neglected to order the Respondent to bar- gain with the Union. We shall modify his recommended Order accord- ingly. We shall also modify the judge’s recommended Order in accordance with our decision in Indian Hills Care Center, 321 NLRB 144 (1996). Finally, we clarify the judge’s make-whole remedy in par. 2(b) of his recommended Order to provide that the Respondent shall reimburse employees for any expenses ensuing from the Respondent’s unlawful conduct, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts to be com- puted in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). At issue, inter alia, is whether the Respondent law- fully declared that the parties were at a bargaining im- passe in October 1996. The judge found that the Re- spondent’s unremedied unfair labor practices “had a direct, serious and pervasive adverse effect” on the bar- gaining process and that there was a “causal connection between these unremedied unfair labor practices and the parties’ failure to reach agreement.” The judge con- cluded that the Respondent could not lawfully declare impasse and implement its final contract proposals. For the reasons set forth below, we agree with the judge. 1. Background The Union began its organizing activities at the Re- spondent’s facility in 1989. On June 5, 1991, the Board certified the Union as the collective-bargaining repre- sentative of the Respondent’s production and mainte- nance employees. Thereafter, the Respondent refused to bargain with the Union and refused to furnish requested information. On November 8, 1991, the Board found that the Re- spondent had violated Section 8(a)(5) and ordered it to bargain with the Union.4 The Respondent did not meet with the Union for the first time until July 27, 1993, after the United States Court of Appeals for the Eleventh Circuit enforced the Board’s Order. Between July 27, 1993, and October 10, 1996, the parties held 35 bargain- ing sessions. During the last session, the Respondent declared that the parties had reached impasse. The bar- gaining sessions will be discussed in more detail below. During the 3 years of bargaining, the Respondent re- peatedly acted in disregard of its employees’ rights un- der our Act. In 1997 the Board found that the Respon- dent had violated Section 8(a)(5) by making the follow- ing unilateral changes to employees’ terms and condi- tions of employment:5 • In October 1991, after the Union was certified, the Respondent increased employee contributions to the cost of health insurance premiums. • In October 1992 the Respondent increased em- ployee contributions to the cost of health insurance premiums. • In May 1993 the Respondent discontinued giv- ing merit increases to employees. • In July 1993 the Respondent changed its smok- ing policy. 4 305 NLRB 574, enfd. 992 F.2d 313 (11th Cir. 1993). 5 323 NLRB 1263. 333 NLRB No. 90 DYNATRON/BONDO CORP. 751 • In October 1993 the Respondent increased em- ployee contributions to the cost of health insurance premiums. • In October 1994 the Respondent increased em- ployee contributions to the cost of health insurance premiums. In the same case, the Board found that the Respondent committed the following violations of Section 8(a)(3): • In June 1994 the Respondent discharged Union negotiating committee member Floyd Robin Davis. • In August 1994 the Respondent converted the resignation of Union negotiating committee member Mark Pepper to a termination. • In November 1994 the Respondent converted the resignation of Union negotiating committee member Gene Bennett to a termination. • In February 1995 the Respondent converted the resignation of Union negotiating committee member Bob Moss to a termination. Finally, in the same case, the Board found that the Re- spondent violated Section 8(a)(1) in February 1992 by engaging in surveillance of its employees’ union activi- ties. Further, in a separate proceeding in 1997,6 the Board found that the Respondent continued to discriminate against employees who supported the Union. Specifi- cally, the Board found that the Respondent committed the following violations of Section 8(a)(3): • On September 14, 1995, the Respondent sus- pended Union negotiating committee member Lee Carter. • On September 19, 1995, the Respondent dis- charged Carter. • In January 1996 the Respondent discharged out- spoken union adherent Brenda Rogers. In 1999, all of the above-listed unfair labor practice findings were upheld by the Eleventh Circuit. NLRB v. Dynatron/Bondo Corp., 176 F.3d 1310.7 6 324 NLRB 572 (1997). 7 The court disagreed with the Board in certain other respects. Spe- cifically, the court reversed the Board’s finding that the Respondent unlawfully implemented a “late arrival to work station” rule and dis- charged employee Lamar Shelton for violating the rule. The court also reversed the Board’s findings that the Respondent unlawfully instituted new work policies relating to material handlers, parking, compensation for work during power outages, and the use of identification cards. The Board recognizes that the court’s opinion is controlling for purposes of resolving the issues presented by this case. See Dynatron/Bondo Corp., 330 NLRB 16 (1999) (accepting Eleventh Circuit’s decision as the law of related case involving the same parties). The Respondent’s unfair labor practices, starting shortly after the Union was certified and continuing dur- ing negotiations, were a source of controversy from the beginning of bargaining. As stated above, a few days before the first bargaining session, the Respondent announced the change in the smoking policy, to be effective the day after bargaining began. The smoking policy change consumed much of the first bargaining session on July 23, 1993. Union negotiator Harris Raynor expressed the Union’s suspi- cions about the timing of the policy change: “You don’t come to the table on July 27th and say you are going to implement a policy on July 28th; it’s now irrelevant because you have already announced it. That’s typical of the [Respondent’s] tactics of bargaining.” The Re- spondent’s negotiator, Walt Lambeth, disingenuously responded, “That’s why we didn’t make it effective until tomorrow—so we could negotiate with you.” Again, as stated above, by the time negotiations be- gan, the Respondent had twice increased employee con- tributions to the cost of health insurance premiums. During the first bargaining session, the Union attempted to discuss the Respondent’s unilateral increases in em- ployee contributions. The Respondent refused the Un- ion’s request to rescind the increases and refused to dis- cuss the matter because it was pending before the Board. The Union also complained at the first bargaining ses- sion about the Respondent’s surveillance of union activities. The Respondent announced that it intended to continue its video surveillance of company property. At the September 27, 1993 session, the Respondent, as though to emphasize its disregard for its obligation to bargain with the Union, announced an additional in- crease in employee contributions to the cost of health insurance premiums “in accordance with our past prac- tice.” The Respondent spurned the Union’s attempt to discuss the increase at the next bargaining session on October 21, 1993. Then, on August 29, 1994, the Re- spondent again unilaterally announced further increases in employee contributions to the cost of health insurance premiums, despite the Union’s reminder that such changes were the subject of unfair labor practice litiga- tion. The subject came up again on September 19, 1994. Union negotiator Raynor complained that the change “is a violation. You are not authorized to change the rates unless you negotiate.” Lambeth replied, “We’ll negoti- ate about insurance and be happy to talk with you about what we do in the future. Until we reach an agreement, we’ll continue doing the same as we have in the past.” Then, on September 9, 1996, the Respondent again uni- laterally announced further increases in employee con- tributions to the cost of health insurance premiums. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752 The Respondent’s unilateral discontinuation of annual merit increases was another contentious issue during bargaining. In the September 9, 1993 session, the Union sought to determine whether the Respondent had discon- tinued its merit increase policy. The Respondent re- fused to answer any questions, accusing the Union of seeking to “continue [its] pattern of harassment of this company . . . . If [the Union] were honestly seeking information for the purpose of bargaining, it might be a little easier to communicate.” Then, on September 27, 1993, the Respondent insisted that merit raises were not being given, but stated that it was not allowed to grant them unless the Union agreed. On July 22, August 29, September 19, October 6, 1994, and January 9, 1995, the Respondent refused to be forthcoming about various aspects of the merit increase policy because of pending litigation or other reasons. Finally, one at a time at regular intervals during the course of bargaining, the Respondent unlawfully dis- charged six employees, five bargaining committee mem- bers, and a vocal union supporter. Dealing with the discharges consumed considerable time at the bargain- ing table. Equally significant, the discharges made it difficult for the Union to replace bargaining committee members because unit members feared retribution for serving on the committee. The Respondent declared that the parties were at a bargaining impasse at the October 10, 1996 bargaining session. Shortly thereafter, the Respondent sent a draft of its final proposal to the Union. The Union insisted that impasse had not been reached and that bargaining should continue. The Respondent countered that, be- cause the Union would not agree to its final proposal, “it is clear that further meetings are futile and we are at an impasse.” On October 31, 1996, the Respondent noti- fied the Union of its announcement to employees that the parties were at impasse and that, effective November 4, 1996, the Respondent would implement an increase in employee contributions to the cost of health insurance premiums and a wage increase. 2. Discussion Generally, “a lawful impasse cannot be reached in the presence of unremedied unfair labor practices.” White Oak Coal, 295 NLRB 567, 568 (1989). And, in the ab- sence of a lawful, good-faith impasse, an employer may not unilaterally implement its final contract offer. Id. Indeed, an employer that has committed unfair labor practices cannot “parlay an impasse resulting from its own misconduct into a license to make unilateral changes.” Wayne’s Dairy, 223 NLRB 260, 265 (1976). Not all unremedied unfair labor practices committed before or during negotiations, however, will lead to the conclusion that impasse was declared improperly, thus precluding unilateral changes. Alwin Mfg. Co., 326 NLRB 646, 688 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999). Only “serious unremedied unfair labor practices that affect the negotiations” will taint the asserted im- passe. Id. (Emphasis added.) Thus, the central question is whether the Respondent’s unlawful conduct detrimen- tally affected the negotiations over a new collective- bargaining agreement and contributed to the deadlock. In Alwin, 192 F.3d at 139, the court identified at least two ways in which an unremedied ULP can contribute to the parties’ inability to reach an agreement. First, a ULP can increase friction at the bargaining table. Second, by changing the status quo, a unilateral change may move the baseline for negotiations and alter the parties’ expectations about what they can achieve, making it harder for the parties to come to an agreement. Applying the Alwin standard here, we find that there is ample evidence that the Respondent’s conduct made it harder for the parties to come to an agreement. The Respondent set the tone for negotiations on the first day of bargaining. By the end of the first session, the Respondent had refused to delay implementation of the change in the smoking policy, had refused to discuss its increase in employee contributions to the cost of health insurance premiums, and had stated its intention to continue to engage in surveillance of employees’ un- ion activities. As stated above, the Board found that the Respondent’s changes and surveillance were unfair la- bor practices. All in all, the first bargaining session was an inauspicious start to what became increasingly frac- tious negotiations. The Respondent remedied none of the unfair labor practices, despite the Union’s repeated protests during bargaining. Instead, the Respondent continued violating the Act during bargaining by repeatedly announcing unilateral increases in employee contributions to the cost of health insurance premiums, refusing to discuss the annual merit increase policy,8 and discharging union members. It is evident that the Respondent used its intransigence regarding previous unilateral changes and repeated uni- 8 In addition to our finding that the Respondent’s actions moved the baseline for negotiations and created friction at the bargaining table, we note that the unilaterally-imposed increase in health insurance premi- ums and the discontinuance of merit increases had an immediate and direct impact on unit employees—the diminution of regular, take-home pay. “Clearly, these were not isolated or insignificant matters, but rather were areas in which the entire bargaining unit was adversely affected in the most fundamental way—in their paychecks.” Inter- mountain Rural Electric Assn., 305 NLRB 783, 789 (1991), enfd. 984 F.2d 1562 (10th Cir. 1993). DYNATRON/BONDO CORP. 753 lateral changes during bargaining to gain an advantage in the bargaining process. In essence, the Union could not formulate bargaining proposals based on a status quo because the Respondent, by repeatedly acting unilater- ally and refusing to discuss its changes, kept terms and conditions of employment in a constant state of flux. Further, the Respondent’s conduct forced the parties to focus on its changes, which it refused to rescind, rather than on legitimate bargaining proposals. We conclude that the Respondent’s conduct “move[d] the baseline for negotiations . . ., making it harder for the parties to come to an agreement.” Alwin, supra, 192 F.3d at 139. Additionally, we find that there is ample evidence that the Respondent’s unfair labor practices increased fric- tion at the bargaining table. First, the Respondent’s re- fusals to discuss unilateral changes in terms and condi- tions of employment and the Respondent’s attack on the Union for filing unfair labor practice charges about these changes could be expected to create friction. Further, the discharging of union bargaining committee members would tend not only to hinder the committee’s ability to negotiate, but also would reasonably lead it to believe that its very existence was under attack.9 In fact, the exchanges quoted above, between Union negotiator Raynor and the Respondent’s negotiator Lambeth, ex- emplify that friction did occur at the table. We conclude that the parties were unable to reach an agreement due in part to the existence of the unremedied unfair labor practices committed by the Respondent. It follows that the parties could not, and did not, reach a good-faith impasse, and that the Respondent was not entitled to implement its final contract proposals by changing wages and group health insurance. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge, as modified below, and orders that the Respondent, Dyna- tron/Bondo Corporation, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2(c) and reletter the subsequent paragraphs accordingly. 9 Oddly, the Respondent’s exceptions illustrate its inclination to en- gage in action that would create friction. In the supplemental decision, the judge stated that the Respondent’s “acts did not build trust in [its] good faith at the bargaining table, but signaled the opposite, a trust- destroying demand for surrender.” The Respondent excepts to the judge’s further statement that “experience demonstrates that progress at the bargaining table bears a direct relationship to the success of the parties in building some degree of trust.” This exception exhibits a disdain for the bargaining process that mirrors the Respondent’s atti- tude about its bargaining obligation, which it has repeatedly refused to accept despite Board and court orders. “(c) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit concerning terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement. The appropri- ate unit is: All production and maintenance employees em- ployed by the Employer at its Atlanta, Georgia fa- cility, including all quality control technicians, but excluding all office clerical employees, technical employees, laboratory and professional employees, guards, and supervisors as defined in the Act.” 2. Substitute the following for relettered paragraphs 2(d) and (e). “(d) Preserve and, within 14 days of a 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, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Or- der. (e) Within 14 days after service by the Region, post at its facilities in Atlanta, Georgia, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 25, 1996.” 3. Substitute the attached notice for that of the admin- istrative law judge. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT make changes in the wages or group health insurance of our employees in the bargaining unit represented by the Union of Needletrades, Industrial and Textile Employees, AFL–CIO, without providing the Union adequate notice of the proposed changes and ade- quate opportunity to bargain about them. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request, rescind the changes we made by implementing our wage and group health insurance proposals unilaterally, and restore the terms and condi- tions of employment pertaining to wages and group health insurance which were in effect before we unlaw- fully changed them. WE WILL, to the extent that any employee was af- fected adversely because of the changes we made in wages and group health insurance, make each such em- ployee whole, with interest, for all losses the employee suffered because of the unlawful changes. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the following appropriate bargaining unit: All production and maintenance employees em- ployed by us at our Atlanta, Georgia facility, includ- ing all quality control technicians, but excluding all office clerical employees, technical employees, laboratory and professional employees, guards, and supervisors as defined in the Act. DYNATRON/BONDO CORPORATION SUPPLEMENTAL DECISION KELTNER W. LOCKE, Administrative Law Judge. On February 25, 1998, I issued a bench decision and certification in this case. On September 30, 1998, the Board issued an order remanding the case to me with instructions to issue a supple- mental decision. Dynatron/Bondo Corp., 326 NLRB 1170 (1998). Thereafter, I issued an order affording the parties the oppor- tunity to file briefs. Both the General Counsel and Respondent did file briefs, which I have carefully considered. Findings Regarding Uncontested Issues I adopt the following findings, set forth in the bench decision and certification, regarding uncontested issues. The charge in this proceeding was filed by the Union on November 8, 1996, and a copy was served by first-class mail on Respondent on November 8, 1996. At all material times Respondent, a Georgia corporation, with an office and place of business in Atlanta, Georgia, called Respondent’s facility, has been engaged in manufacturing automobile filler, and other automotive products. During the relevant 12-month period, Respondent, in con- ducting its business operations, sold and shipped from its At- lanta, Georgia facility goods valued in excess of $50,000 di- rectly to points outside the State of Georgia. At all material times Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act. All production and maintenance employees by the Respon- dent at its Atlanta, Georgia facility, including all quality control technicians, but excluding all office clerical employees, techni- cal employees, laboratory and professional employees, guards, and supervisors as defined in the Act constitute a unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. On September 8, 1989, in an election by secret ballot, con- ducted under the supervision of the Regional Director for Re- gion 10, a majority of the employees in this unit designated and selected the Union as their representative for the purpose of collective bargaining with Respondent with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. On June 5, 1991, the Board certified the Union as the exclusive collective-bargaining representative of all the employees in the unit described above. The Issue of Impasse Paragraph 10 of the complaint alleges that on or about Octo- ber 25, 1996, Respondent implemented the wage and group health insurance proposals that had been contained in its final bargaining proposal to the Union regarding the terms and con- ditions of employment of the employees in the unit. Respon- dent’s answer admitted that it had implemented the wage and group health insurance proposals contained within its final bargaining proposal, but further asserted that this implementa- tion was “pursuant to lawful impasse to the Union regarding the terms and conditions of employment” of the employees in the unit. DYNATRON/BONDO CORP. 755 In my February 25, 1998 bench decision, I found that no lawful impasse existed when Respondent implemented the wage and group health insurance proposals because at that time unfair labor practices existed which Respondent had not reme- died. Specifically, I found that Respondent previously had made a number of unilateral changes in working conditions which the Board had found unlawful in Dynatron/Bondo Corp., 323 NLRB No. 217 (1997),1 and Dynatron/Bondo Corp., 324 NLRB No. 98 (1997).2 These unlawful changes included uni- laterally instituting new disciplinary rules, changing its parking policy, and creating a new policy for employee compensation during power outages. I found that these unremedied unfair labor practices pre- cluded the existence of a lawful impasse.3 My bench decision stated, in part, as follows: [I]f the evidence shows the bargaining process is felt to have been adversely affected by employer’s unfair labor practices, the parties cannot reach a valid bargaining im- passe; see Intermountain Rural Electric Association, 305 NLRB 783 at 789 [1991]. In the case of Columbian Chemicals Co., 307 NLRB 592, at footnote one [1992], the Board stated that an em- ployer’s application of the unilaterally implemented policy to employees would preclude a finding that the employer had bargained in good faith to impasse after implementing that policy. In Dynatron/Bondo Corporation, 323 NLRB 1263, is- sued July 16, 1997, the Board found that the Respondent herein had made unlawful unilateral changes, including discontinuing its past practice of granting merit raises, in- creases its unit employees’ contributions to their health in- surance program, and imposing a total smoking ban. In Dynatron/Bondo Corporation, 324 NLRB 572, is- sued September 30, 1997, the Board found, among other violations, that the Respondent herein had unlawfully made a number of unlawful changes in working conditions unilaterally, including unilaterally instituting new discipli- nary rules, changing its parking policy and creating a new policy for employees’ compensation during power out- ages. In view of the unilateral changes found unlawful by the Board in the previous cases, and because the Respondent had not remedied these changes, I concluded that a lawful impasse did not exist. Reviewing my decision, however, the Board determined that I had not applied the correct legal standard, and remanded the case to me for that purpose, stating, “for the judge to conclude that the unremedied unfair labor practices prevented the parties from reaching lawful impasse, he must first find that there was a causal connection between the previous unfair labor practices and the failure to reach an agreement.” The Board further stated: 1 Appearing in bound volume as 323 NLRB 1263. 2 324 NLRB 572. 3 Other unremedied unfair labor practices include discrimination against employees serving on the Union’s bargaining committee. The record contains evidence of the parties’ extensive bargaining, which the judge failed to discuss. Further, the judge’s brief discussion contains no explanation for why he believed the bargaining was adversely affected by the Respondent’s prior unfair labor practices. Dynatron/Bondo Corp., 326 NLRB 1170 (1998). I understand the Board’s concern to be grounded in the im- portant principle that the Board’s authority is remedial, not punitive. Ordinarily, an employer which bargains in good faith may implement its final offer at impasse. Denying the Respon- dent this right would be punitive unless the evidence establishes that the unremedied unfair labor practices had an adverse im- pact on the negotiations. If the previously found and still unremedied unfair labor practices did push the negotiators in the direction of impasse, then the claimed impasse resulted from the Respondent’s own wrongdoing. Therefore, allowing Respondent to implement its final offer would violate the principle that a wrongdoer should not be permitted to benefit from its unlawful action. There is no conflict between the principle that the Board’s authority to order relief is remedial, not punitive, and the prin- ciple that a wrongdoer should not profit from its transgression. If the unremedied unfair labor practices pollute the negotiating atmosphere and make agreement less likely, this consequence must be addressed and rectified, not as punishment, but as part of restoring the status quo which existed before Respondent broke the law. The inquiry must begin by identifying the unfair labor prac- tices which the Board found in the two previous cases cited above. Then, I must determine what effect, if any, these unlaw- ful acts had on the negotiations. The Board has found, inter alia, that Respondent violated the Act by discharging, at various times, three members of the Union’s negotiating committee, by discharging another em- ployee who supported the Union, and by converting the resig- nations of three union negotiating committee members into discharges. These unlawful acts of discrimination against un- ion negotiators all took place during the course of the bargain- ing which began in July 1993 and ended with the Respondent’s unilateral implementation of its wage and group health propos- als on October 25, 1996. In the previous cases, the Board also found that the Respon- dent violated Section 8(a)(5) and (1) of the Act by unilaterally changing a number of terms and conditions of employment which were mandatory subjects of bargaining, without reaching either agreement with the Union or lawful impasse. These unlawful changes included discontinuing the practice of grant- ing merit increases to employees after their 90-day probation- ary periods and after their anniversary dates, unilaterally in- creasing employee contributions to group health insurance premiums, changing its smoking policy from a partial to a complete ban, promulgating a new disciplinary policy for mate- rial handlers, and instituting new rules regarding parking, late arrival, failure to bring identification cards to work, and for payment in the event of a power outage. The unlawful discharge of members of the Union’s negotiat- ing committee has an obvious effect on the bargaining process. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756 Moreover, these unfair labor practices entailed more than ter- minating the employment of the Union’s negotiators. Signifi- cantly, Respondent’s unlawful conduct also included a continu- ing refusal to reinstate these employees. These acts of discrimi- nation produced a number of effects which have an adverse im- pact on the bargaining process. Most obviously, the unlawful firing of employees on the Un- ion’s bargaining team reasonably and forseeably interfered with the continuity of that committee and, therefore, hindered the Union’s ability to negotiate. The Union’s chief negotiator, Harris Raynor, credibly testified that “as individual members of our committee left, whether voluntarily or not, it was very dif- ficult to replace them. Getting people to volunteer to be on the committee was difficult because people felt that there might be retribution taken against them.” In its brief, Respondent urges that Raynor’s testimony be re- jected. It argues that the evidence “shows that none of the un- remedied unfair labor practices had any effect on the progres- sion of the parties’ negotiations, much less precluded agree- ment from being reached.” Respondent asserts that the unre- medied unfair labor practices had no effect on the ability of the Union to get employees to serve on its bargaining committee. Respondent further stated: The Union’s contention that employee support was undermined by fear of retaliation is further belied by the fact that employee participation was greater in 1996 than in prior years. Indeed, more employees participated in the final negotiating meetings than ever before. (R.Br. 17, emphasis in original.) Based on Raynor’s demeanor as a witness, however, I credit his testimony. I also reject Respondent’s argument because there is no showing that the number of employees who showed up as union negotiators bore any reliable relationship to the level of fear created by Respondent’s unlawful discharges. The record does not reflect how many employees declined the Un- ion’s request for volunteers. Additionally, I reject Respondent’s related argument that the continued presence at the bargaining table of an employee after his unlawful discharge demonstrates that the firing of this em- ployee did not affect negotiations. Specifically, Respondent’s brief asserted that Lamar Shelton, who was discharged unlaw- fully, “continued to participate in the negotiations even after he was terminated in March 1996 . . . . In fact, his termination was discussed during the April 8, 1996, negotiation meeting. Noth- ing in the negotiating notes show, however, that Shelton’s ter- mination adversely affected the parties’ ability to negotiate during that session or any of the subsequent sessions.” (R.Br. 17–18.) It certainly is true that the notes of the April 8, 1996 negotiating session do not indicate that a brawl ensued after Shelton showed up. The notes do not even suggest that the negotiators reacted to each other with greater-than-usual acrimony. The absence of overt hostility, however, does not signify that Respondent’s unlawful discharge of Shelton had no effect on the negotiations simply because he continued to attended some bargaining sessions. Under the logic of Respondent’s argument, a chemical would not be considered toxic unless the body reacted immediately with coughing and gagging in protest. The most insidious con- taminants only become manifest over time and through the silent damage they produce. It would be naive to conclude that Respondent’s unlawful discharge of this negotiator caused no harm to the process of reaching agreement simply because it did not turn a bargaining session into the Jerry Springer Show. Moreover, the fact that negotiators spent considerable time discussing a discharge which the Board has found discrimina- tory and unlawful plainly demonstrates that the unfair labor practices were having a detrimental effect on bargaining. Fo- cus on Respondent’s unlawful discrimination necessarily de- tracted from discussion of the parties’ contract proposals. The unlawful discharges of union committee members nec- essarily caused other types of harm to the bargaining process, as well. Regardless of whether the fear of retaliation reduced the number of employees on the Union’s bargaining committee, it foreseeably would discourage them from speaking candidly about workplace problems. Such fear chills the open, robust discussion which facilitates effective negotiation. The specter of discrimination evoked by the unlawful dis- charges also interfered with the development of the working relationships necessary to reach compromise on sensitive is- sues. These unremedied unfair labor practices destroyed the essential ingredient of trust. In theory, perhaps, opposing sides might be able to reach an agreement without ever trusting each other at all. In labor ne- gotiations, however, experience demonstrates that progress at the bargaining table bears a direct relationship to the success of the parties in building some degree of trust. Nothing can de- stroy trust more quickly than Respondent’s unlawfully dis- charging members of the Union’s negotiating team. Refusing to reinstate these employees, even after the Board ordered Re- spondent to do so, perpetuated a bargaining relationship barren of trust. In assessing the adverse impact on trust, the unlawful dis- charges should be viewed together with Respondent’s other unremedied unfair labor practices. When employees consid- ered the Respondent’s unlawful firings of union negotiators, they would also take into account the numerous changes in working conditions which Respondent unlawfully made over the course of negotiations. All of the unlawful acts, considered together, conveyed a message of intimidation. These unfair labor practices, and the Respondent’s refusal to remedy them when ordered to do so, constituted a demonstration of raw power seemingly unre- strained by law. The pervasive impact of the unlawful acts, and Respondent’s continued willingness to disregard the labor law, could only broadcast to the employees a calculated message that “resistance is futile.” These acts did not build trust in Respondent’s good faith at the bargaining table, but signalled the opposite, a trust– destroying demand for surrender. The Union did not surrender, and the bargaining process continued until Respondent declared impasse in October 1996. However, the fact that negotiations did not die instantly does not signify an absence of serious in- jury to the bargaining process. DYNATRON/BONDO CORP. 757 Notes of the bargaining sessions reflect how the unremedied unfair labor practices injected a continuing tension which made a meeting of the minds more difficult. This tension is readily apparent, for example, in the following exchange between Re- spondent’s attorney, Walter Lambeth (WL), and the Union’s chief negotiator, Harris Raynor (HR), reported in the notes of the September 25, 1996 bargaining session: HR: What about Hours of Work and Overtime? You got a new proposal. WL: We have gone through and explained our posi- tion on that. We reject it completely. We have no further movement. HR: That doesn’t mean we may not have movement on other proposals. WL: Do you have any? HR: It takes time. WL: I suggest you get on with it. These people have been sitting around without an increase for three years, while you’re fooling around. We’re ready right now for you to take this proposal to your people. We want to wrap this up. HR: We think consideration of the Labor Board will more than compensate these people. I don’t think people need to worry that something is being held from them. I think when the Labor Board goes back and recalculates the back pay, there may be some substantial money—far more than what you are offering in your proposal. WL: We’re not the first bit concerned with what the Labor Board is doing. We’re concerned with these nego- tiations at this table. I suggest you forget about the Labor Board and get on with getting to an agreement. Respondent’s implication that the Union was allowing the charges it filed with the Board to distract it from the task of negotiating, has a particularly disingenuous ring, considering that the Respondent’s unlawful actions had prompted filing of the charges. Indeed, Respondent’s violations of the labor law have been established in two separate proceedings and are now beyond question. Therefore, Respondent’s criticizing the Union for filing charges with the Board seems about as appropriate as taking a hammer under the poker table, hitting the opponent’s big toe, and then responding to his exclamations with a demand that he shut up and play cards. No one can doubt that it is the hammer blow, not the resulting howl of pain, which is responsible for the disruption. Likewise, any harm to the negotiating process originated in the Respondent’s unlawful acts, not in the Union’s lawful protest of them. Still, the statements by Respondent’s attorney to the union negotiator, that the Union should stop “fooling around” and should “forget about the Labor Board and get on with getting to an agreement,” indicate the harm the unfair labor practices had caused to the bargaining process. Such statements are symp- toms of a frustrating disorder in bargaining, even if incorrect as to its etiology. Bargaining notes reflect that Respondent’s unlawful unilat- eral changes particularly harmed the bargaining process from the very outset. This impact becomes clear by examining how individual unilateral changes affected negotiations. Before bargaining began on July 27, 1993, Respondent an- nounced it was changing its policy concerning employees smoking on the premises, resulting in a total ban. In Dyna- tron/Bondo Corp., 323 NLRB 1263 (1997), the Board found, inter alia, that respondent made this change without notice to or bargaining with the union, and that it violated Section 8(a)(5) and (1) of the Act. In the same decision, the Board also found that respondent had committed unfair labor practices when it increased employee contributions to their health insurance pre- miums after the union was certified as the employees’ exclusive bargaining representative in 1991. Bargaining notes establish that discussion of the unilateral change in smoking policy consumed a significant portion of the parties’ time at the first negotiating session and continued to be a source of disagreement in bargaining. At the first bargaining session, negotiators also came into conflict over the Respon- dent’s unlawful change in health insurance premiums. Bargain- ing notes reflect the following exchange between the Union’s representative, Harris Raynor (HR), and the Respondent’s at- torney, Walter Lambeth (WL): HR: The union will continue to insist that the com- pany return any increased amount of premium and any change made in November 1991, when you normally re- view insurance costs. We want to know what changes were made in 1991. WL: These are complaints that are there with the Board. It is up to the Labor Board to decide what they want to do. I am not at this point sure what our position is. That is the decision of the company. I don’t think it would be appropriate for us to respond. Not about matters that are pending in litigation. [Emphasis added.] Respondent’s unwillingness even to discuss the substance of the change in health insurance premiums at this first bargaining session provides compelling evidence of the chilling effect this unfair labor practice had on negotiations. Although Respon- dent offered, as a reason for its refusal to discuss this issue, the fact that unfair labor practice litigation was pending, that reason is hardly persuasive. Respondent’s unlawful conduct resulted in the unfair labor practice litigation, and it cannot rely upon the consequences of its own unlawful acts to excuse its lawful bargaining obligation. Although Respondent’s unilateral changes in smoking policy and health insurance premiums had an adverse impact on bar- gaining, another unlawful change caused even greater damage to negotiations. In Dynatron/Bondo Corp., 323 NLRB 1263 (1997), the Board also found that the respondent had an estab- lished pattern and practice of granting raises to employees on their probationary or annual anniversary dates and that the em- ployees had come to view these increases as fixed terms and conditions of employment. In May 1993, well after the Union became the certified bar- gaining representative but before the first negotiating session, Respondent discontinued its practice of granting such wage increases without notifying or bargaining with the Union. The Board found that this change violated Section 8(a)(5) and (1). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758 The bargaining notes reflect that this unilateral action had a significant and continuing effect on the negotiations. At the September 9, 1993 session, for example, Union Representative Harris Raynor and Respondent’s attorney, Walter Lambeth, had the following exchange: HR: Do you have a policy for evaluating employees approximately on anniversary date and at other times be- fore? It’s a simple question. It’s also part of a written re- quest. WL: You’ll get responses to your legitimate requests for information. Your real purpose in asking this is to file charges against this company so that you can continue your pattern of harassment of this company, and that is why I want to make certain that when you get an answer, it is accurate. If you were honestly seeking information for purposes of bargaining, it might be a little easier to com- municate. The unlawful discontinuation of the periodic raises continued to be a source of friction throughout negotiations. When this issue arose during the October 6, 1994 session, for example, Respondent’s attorney told the Union that the Respondent could not “go back and correct these things” because the Union had “our hands tied. We are locked in.” At the June 17, 1996 session, the Union asked if employees received a bonus for perfect attendance. The Respondent’s attorney responded, “They get $25.00. Are you going to file a charge about that?” Throughout negotiations, Respondent made such statements, indicating that it blamed the Union for filing charges and that it considered the charges a source of delay and an impediment to bargaining. However, Respondent’s logic does not go quite far enough. The undeniable strains which Respondent tried to attribute to the unfair labor practice charges actually arose be- cause of the unlawful acts which precipitated them. As the exclusive representative of the bargaining unit em- ployees, the Union had every right to file charges with the Board and to seek a remedy for the Respondent’s unfair labor practices. It cannot be blamed for trying to right the wrong done to the employees it represents. Under the law, the Union’s assertion of its legal rights does not constitute an impediment to bargaining. Rather, it is Re- spondent’s unlawful unilateral actions, and its refusal to undo them, which burdened and obstructed the negotiating process. Such changes show Respondent’s contempt for its bargaining duty more dramatically, and more painfully, than if Respon- dent’s negotiators had greeted their union counterparts each time with a salute of thumb to nose. As the administrative law judge stated in Alwin Mfg. Co., 326 NLRB 646 (1998), “While no unfair labor practice is in- significant, in the context of determining whether an impasse is present, some have more significance than others in the negoti- ating process and its progress. For example, unilateral changes in employees’ terms and conditions of employment may consti- tute significant violations of the Act in the context of which misconduct, no lawful impasse can be reached.” Affirming, the Board stated: During the time period covered by the present pro- ceeding, the Respondent still has not complied with the remedial obligations imposed by [the Board’s previous or- der]. Rather, as the judge correctly observed, “the Respon- dent, without hiatus, has continued to enforce its unlaw- fully implemented vacation policy and minimum produc- tion standards, has continued to discipline employees for not meeting those standards and has inflexibly insisted on including these terms in the next collective-bargaining agreement.” Indeed, the judge specifically found that the Respon- dent’s insistence on maintaining the unlawfully imple- mented employment terms resulted in friction and dis- agreement at the bargaining table and ultimately was re- sponsible, in material part, for the breakdown in negotia- tions. Alwin Mfg. Co., Inc., above. I find that the Respondent’s con- duct in the present case is remarkably close to the actions which the Board found violative in Alwin.4 See also Great Southern Fire Protection, 325 NLRB 9 (1997); Intermountain Rural Electric Assn., 305 NLRB 783 (1991). In sum, I find that Respondent’s unremedied unfair labor practices had a direct, serious, and pervasive adverse effect on the collective-bargaining process. Further, I find that there is a causal connection between these unremedied unfair labor prac- tices and the parties’ failure to reach agreement. Therefore, I conclude that Respondent could not lawfully declare impasse and implement its wage and group health insurance proposals. CONCLUSIONS OF LAW 1. Dynatron/Bondo Corporation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Union of Needletrades, Industrial and Textile Employees, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent (the unit), con- stitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. All production and maintenance employees by the Respon- dent at its Atlanta, Georgia facility, including all quality control technicians, but excluding all office clerical employees, techni- cal employees, laboratory and professional employees, guards, and supervisors as defined in the Act. 4. At all times since June 5, 1991, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. 5. Respondent violated Section 8(a)(5) and (1) of the Act, by on/or about October 25, 1996, unilaterally implementing its 4 In Alwin, the administrative law judge ordered the respondent to re- imburse the union for expenses related to negotiations, and also ordered the respondent to reimburse the union and the General Counsel for litigation costs. The respondent did not file exceptions to these re- quirements and the Board adopted them. In the present case, the General Counsel has not sought reimburse- ment of either negotiation or litigation expenses. In the absence of such a request, I will not reach the issue of whether such remedies would be appropriate here. DYNATRON/BONDO CORP. 759 contract proposals regarding wages and group health insurance when it was in negotiations with the Union for a collective- bargaining agreement, and at a time when Respondent’s prior unremedied unfair labor practices, affecting negotiations, pre- cluded a lawful impasse. 6. This unfair labor practice affects commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act, described below in the recom- mended Order, including posting the notice to employees at- tached as an appendix. I hereby issue the following recommended5 ORDER The Respondent, Dynatron/Bondo Corporation, of Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Making unilateral changes in its employees’ wages and group health insurance without providing the Charging Party adequate notice of the proposed changes and adequate opportu- nity to bargain about them. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) At the Charging Party’s request, rescind the changes it made on or about October 25, 1996, by implementing its wage 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. and group health insurance proposals unilaterally, and restore the terms and conditions of employment pertaining to wages and group health insurance which were in effect before it unlawfully changed them. (b) To the extent that any employee was affected adversely because of the changes in wages and group health insurance which the Respondent made unilaterally on about October 25, 1996, the Respondent shall make each such employee whole, with interest, for all losses the employee suffered because of the unlawful changes. (c) Preserve and, on request, make available to the Board or its agents for examination a copy of all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay which may be due under this order. (d) Within 14 days after service by the Region, post at its fa- cilities in Atlanta, Georgia, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 25, 1996. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Regional Director attesting to the steps that the Respondent has taken to comply.