Henry Miller Spring & Manufacturing Co. Inc.

472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henry Miller Spring & Manufacturing Company, Inc. and District Lodge 63, International Asso- ciation of Machinists and Aerospace Workers, AFL-CIO. Case 6-CA-16466 14 December 1984, DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 30 March 1984 Administrative Law Judge Peter E. Donnelly issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings,2 and conclusions 3 and to adopt the recommended Order4 as modified. The issue presented in this case is whether the Respondent violated Section 8(a)(5) and (1) of the Act by announcing and implementing its last con- tract offer without having reached a valid impasse in its contract negotiations with the Union. We conclude that the parties never reached that point in their negotiations which warranted the assump- tion that further bargaining would have been futile. When the Respondent implemented its last con- tract offer on 6 June 1983, the parties had not com- municated to each other the paramount importance of any of the issues presented at the bargaining table, or that one party's failure to achieve a de- sired degree of concession on such issues would necessarily deadlock the entire bargaining process. Rather, the parties were continuing to negotiate The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 In his discussion of the 10 May 1983 bargaining session between the parties, in sec III,A, par 6 of his decision, the judge stated, "The Pur- pose and Intent of the parties provision was modified to eliminate lan- guage stating that the 'no-strike' language applied to strikes 'of any kind or nature " The Respondent's exceptions correctly assert that the "Pur- pose and Intent" proposal which it submitted to the Union on 10 May specifically applied the no-strike language to strikes "of any kind or nature" 3 In affirming the judge's conclusion that no valid impasse existed, we do not rely on his discussion and analysis of the parties' bargaining histo- ry after 6 June 1983 in sec III,B, par 2 of his decision 4 We will modify the recommended Order and notice to require the Respondent to bargain to agreement or until a valid Impasse is reached We will also extend the Order to require the Respondent to make whole the employees for any lost wages or benefits Incurred as a result of the Respondent's unilateral changes in their terms and conditions of em- ployment on 6 June 1983 as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), plus Interest as computed in Florida Steel Carp, 231 NLRB 651 (1977) several significant issues, reaching agreement as to some, exchanging concessions as to others. In the meantime, numerous lesser issues were settled. Indeed, on 2 June, when the Respondent contend- ed impasse was reached, the parties held a lengthy session during which agreement was reached on several items. We agree with the judge, therefore, that the bargaining history does not support the Respondent's claim of impasse and its unilateral im- plementation of contract terms. Accordingly, the Respondent circumvented its duty to bargain in violation of Section 8(a)(5) and (1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Henry Miller Spring & Manufacturing Company, Inc., Pittsburgh, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b) and reletter subsequent paragraphs accordingly. "(b) Maintain the terms described in the collec- tive-bargaining agreement with the above-named Union which expired 3 June 1983 until such time as the parties have bargained in good faith and have reached a new agreement or a valid impasse." 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) Make whole its employees, with interest, for any losses they may have suffered by reason of the Respondent's implementation on 6 June 1983 of unilateral changes in their wages and working con- ditions." 3. Substitute the attached notice for that of the administrative law judge. MEMBER HUNTER, dissenting. My colleagues have decided to adopt the judge's finding that, during the course of collective-bar- gaining negotiations, the Respondent violated Sec- tion 8(a)(5) of the Act by unilaterally implementing its most recent contract proposals at a time when no valid impasse existed.' In reaching this conclu- sion however, my colleagues find it necessary to disassociate themselves from the judge's attempt to justify his no-valid impasse finding on subsequent events which demonstrated that the Respondent continued to bargain in good faith with the Union. I can well understand my colleagues' desire to reject the faulty reasoning offered here by the judge, but in so doing, they have removed the very The majority also adopts the judge's finding that the subsequent strike by employees was an unfair labor practice stnke 273 NLRB No. 72 HENRY MILLER SPRING CO 473 basis for his finding that a valid impasse did not exist. In analyzing the issue of whether a valid impasse existed prior to the Respondent's implementation of its contract proposals, it is not necessary to detail the give-and-take that occurred during each of the numerous bargaining sessions. A brief history of the negotiations will suffice. The Respondent and the Union have been parties to a series of collective-bargaining agreements, the most recent of which had an expiration date of 30 April 1982. By agreement of the parties, the con- tract expiration date was first extended until 1 May 1983 and, thereafter, it was extended on a day-to- day basis subject to termination by either party upon a 24-hour written notice. The Respondent served such notice on the Union on 2 June 1983 and the contract terminated the following day. From the commencement of these negotiations on 21 March 1983 until the implementation of the Respondent's contract proposals on 6 June 1983, the parties held 15 bargaining sessions. During these meetings the parties tentatively agreed on many significant issues and, for all practical pur- poses they were engaged in good-faith bargaining. However, throughout these meetings the parties experienced little success in resolving certain issues raised in the Respondent's proposals which called for a reduction in wages and benefits, the Respond- ent's control of the scheduling of work, and a broad management-rights clause. There matters stood until the meeting of 2 June when the Re- spondent accused the Union of submitting regres- sive proposals; i.e., pulling back from previously expressed positions. At this juncture, the Respond- ent notified the Union that it was giving notifica- tion of the termination of the contract and of its in- tention to implement on 6 June the proposals which had been tentatively agreed to as well as the Respondent's latest . proposals which had not been agreed on. The Union countered by requesting that the contract be extended for 90 days, but the Re- spondent refused. The Respondent offered to con- tinue with the negotiations, but the Union declined because it wished to confer with its counsel con- cerning "the new developments." The next contact between the patties was on 5 June when the Union again urged the extension of the contract and the Respondent refused. The Union then asked if im- plementation of the Respondent's proposal meant working with reduced wages and benefits and the Respondent answered that it did. This meeting then closed with the understanding. that the parties would meet the following morning, 6 June. As found by the judge, the meeting of 6 June was un- productive, the parties merely restating their previ- ously expressed position. On 6 June the Respond- ent implemented its proposals and the employees went out on strike. As previously mentioned, my colleagues have correctly rejected the erroneous notion that the Respondent's willingness to continue good-faith bargaining after the implemention of its proposals serves to demonstrate that no impasse was actually arrived at. I presume also, although they have not so indicated, that my colleagues' no-impasse finding does not in any way rest upon the judge's finding that the parties reached agreement on many signifi- cant issues. If that is so, what then does their find- ing rest on? The answer is there is nothing that will support a finding of no-valid impasse. There is undisputed evidence that the parties were unable to reach agreement on wage and bene- fit reductions, work scheduling, and a management- rights clause. When the Respondent announced its intention to implement these among other propos- als, the Union's only response was that it was their desire that the contract be extended. Even when the Union inquired as to whether the implemented proposals would require that the employees work •at reduced wages and benefits and the Respondent answered yes, the Union did not offer anything by way of a counter or suggest that new proposals would be forthcoming. In fact, the Union's actions at these crucial meetings, on 2, 5, and 6 June, would lead one to believe that the Union had de- cided that it had gone as far as it wished to go and that the only further action it contemplated was a strike. In such circumstances, I would find that the par- ties arrived at a valid impasse on or before 6 June and, as a consequence, I would dismiss the com- plaint in its entirety. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain in good faith with District Lodge 63, International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive representative of our employees in the appropriate unit by unlawfully announcing and implementing our last contract proposals, without a valid impasse having been reached. The appropri- ate unit is: 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees in- cluding 'working foreman and truckdrivers of Henry Miller Spring & Manufacturing 'Compa- ny, Inc., Pittsburgh, Pennsylvania; excluding all office clerical employees, watchmen and guards, professional employees and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with,, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively in good faith with District Lodge 63, International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive representative of all the employees in the above-described unit and; if an understanding is reached, embody such understand- ing in a signed agreement. WE WILL maintain the terms described in the collective-bargaining agreement with the above- named Union which expired 3 June 1983 until such time as the parties have bargained in good faith and have reached a new agreement or a valid im- passe. WE WILL make whole our employees, with 'inter- est, for any losses they may have suffered by reason of our unlawful implementation on 6 June 1983 of unilateral changes in their wages and work- ing conditions. WE WILL, on application, offer immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent lio- sitions, without prejudice to their seniority or other rights and privileges, to all those employees who went out on strike on or after 6 June 1983, dismiss- ing, if necessary, any persons hired on or after that date, and WE WILL make them whole for any loss of pay they have suffered as the result of our refus- al, if any, to reinstate them within 5 days of such application. HENRY MILLER SPRING & MANUFAC- TURING COMPANY, INC. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge. The original charge in the above-captioned case was filed on June 9, 1983 by District Lodge 63, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO (the Union or Charging Party). The charge was amended on •July 28, 1983, and on July 29, 1983, a complaint issued alleging that Henry Miller Spring & Manufactur- ing Company, Inc. (Employer or Respondent) ,violated Section 8(a)(1) and (5) of the Act by, during negotiations for a successor contract, announcing the implementation of its last contract offer without a valid impasse having been reached. An answer thereto was timely filed. Pursu- ant to notice, a hearing was held before me on Decem- ber 15, 1983. Briefs timely filed by Respondent - and the General Counsel have been considered FINDINGS OF FACT I. THE EMPLOYER The Employer is a Pennsylvania corporation with a fa- cility in Pittsburgh, Pennsylvania, where it is engaged in the manufacture and sale of coil springs During the year ending June 30, 1983, Respondent purchased and re- ceived at its Pittsburgh, Pennsylvania facility products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that .the Union is a labor organization within of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union and Respondent have been parties to a series of collective-bargaining agreements. The most recent of these was a 3-year agreement with an expira- tion date of April 30, 1982. The contract was extended by the parties to May 1, 1983.' Upon failure to reach agreement by May 1, the contract was extended for a short period of time and finally extended on a day-to-day basis subject to termination by:either party upon 24-hour written notice. •Respondent served on the Union the written notice terminating the contract on June 3, and a strike began on June 6 During the period from March 21 until the beginning of the strike on June 6, a series of some 15 meetings took place at which agreement was reached on many contract provisions and others modified after negotiation, but without final agreement. At these sessions, Respondent was represented by R. Mark Solano, attorney-negotiator, while the Union's spokesman was James L. Elnyszky, di- recting business representative. At the initial negotiating session on March 21, Respondent presented to the Union, as its proposal, a full blown collective-bargaining agreement. This contract differed substantially, in both form and content, from the agreement then in effect. The language of the management-rights clause of the pro- posed contract was quite comprehensive.2 1 All dates refer to 1983 unless otherwise indicated 2 It reads as follows ARTICLE 31-MANAGEMENT RIGHTS 31 1 Excetit as 'expressly limited by a specific provision of this Agreement, the Company reserves and retains and shall continue to Continued HENRY MILLER SPRING CO 475 In addition, the proposed contract provided for a 20- percent reduction in wages from the wage rates then in effect. The existing contract also provided for a 5-day workweek, Monday through Friday. The Company, de- siring greater flexibility in that regard, proposed a work schedule within its sole discretion. 3 The March 21 meet- ing accomplished little more than the submission of the Company's proposal to the Union. A second meeting was held on April 13, at which there was general discus- sion devoted primarily to differentiating the Company's proposal from the existing contract. April 25, the parties met for the third time. The Union submitted, its first written proposal, which essentially provided for a 1-year contract with various improve- ments from the existing contract. Those improvements included a 20-percent wage increase, cost-of-living ad- justment, and with respect to "Hours of Work," sought a guaranteed 35-hour workweek of 5 consecutive days at 7 hours per day, Monday through Friday. Solano testified that this proposal was not "responsive" to the Compa- have the sole and exclusive right to manage its business and direct the working forces, including but not limited to, the nght to plan, direct and control operations, the nght to hire, suspend, discipline, discharge for cause, the right to maintain order and efficiency, trans- fer or promote, or to relieve employeees from active duty because of lack of work or other legitimate reasons, the right to study, deter- mine and regulate the methods, quantity, and quality of work, the sources and kinds of merchandise, matenals, parts, facilities and equipment used, handled or sold, the right to schedule and resched- ule and reduce or increase, work hours, work shifts and shift hours and overtime requirements and the assignments thereto, the right to select customers, the right to extend, limit or curtail operations when and in such manner as it deems advisable to do so, the right to estab- lish, modify and enforce rules and regulations, the right to close, sell, liquidate or move the business or any part thereof, including the con- sequences of such decisions, the right to expand, reduce, alter, com- bine, transfer or terminate any Job, Job content, department, oper- ation of service, the right to subcontract any work, maintenance or otherwise, and the right to determine the number, location and oper- ation of its plant(s) without prior notification or consultation with the Union The rights of management described above and all other inherent rights of management not expressly limited by a specific provision of this Agreement are vested exclusively in the Company 31 2 With respect to lurings, firings, lay-offs, recalls, transfers, and work assignments, the Company shall be the sole and final Judge as to the qualifications of its employees, unless otherwise specifically provided for in this Agreement 31 3 The Company and the Union agree that this Agreement con- tains their full and complete understanding and that any prior prac- tices, benefits or oral agreements, except as specifically referred to in this Agreement, are superseded by the terms of this Agreement The Company and the Union further agree that no oral understandings, practices or benefits will be recognized or regarded as binding unless coMmitted to writing and signed by the parties as a supplement to this Agreement and that the Company may, in its discretion, discon- tinue or modify the provision of any benefit or privileges not re- quired under this Agreement 3 It reads as follows ARTICLE 6-HOURS OF WORK 6 1 The Company shall establish a work schedule in accordance with the Company's need to satisfy the delivery requirements of its customers and the overall dictates of business This work schedule shall be established at the Company's sole discretion and shall in- clude the number of days per week, the number of shifts per day, the starting time of each shift and the number of hours to be worked on each shift Starting time, lunch period and _quitting time in the vari- ous classifications shall be established by the Company in order to achieve a high level of uninterrupted productivity and employee per- formance ny's proposal. However, progress was made as to other contract provisions and by the end of this session tenta- tive agreements had been reached on provisions dealing with recognition, union shop, checkoff, military serviCe, savings clause, and arbitration. At the next negotiating session on May 5, the parties continued to bargain and succeeded in reaching tentative agreements on several more contract provisions, i.e., bul- letin boards, alteration of agreement, and leaves of ab- sence. At the May 10 bargaining session the Company sub- mitted to the Union revised management-rights, hours of work, and "Purpose and Intent" proposals The manage- ment-rights section was modified to add language limit- ing the right of discharge for cause to add "or other le- gitimate reason." As to hours of work, language was added to reflect that the Company would attempt to schedule workdays Monday through Friday and hours of work for the daylight shift to between 7 a.m. and 4 p.m. The Purpose and Intent of the parties' provision was modified to eliminate language stating that the "no- strike" language applied to strikes "of any kind or nature." The next bargaining session was held on May 13. Dis- cussion took place and agreement was reached at this meeting on several contract proposals dealing with the Purpose and Intent provision, shop committee, griev- ance, discharge and discipline, and picket line. The Pur- pose and Intent provision, as agreed to, includes the broad "no-strike" language contained in the Company's proposal of May 10, while' Respondent accepted lan- guage defining the Union's responsibility in strike situa- tions. At the next negotiating Session on May 19, negotia- tions continued and much of the discussion involved the workweek Issue. The Union 'retreated from its written submission of April 21 and proposed scheduling 5 days on and 5 days off so as 'to meet the problem of a split workweek, and expressed a willingness to accept a guar- anteed workweek of fewer days, as few- as 3 days per week. Respondent also backed off previously held posi- tions on the matter of paid holidays by adding an addi- tional paid holiday; on the matter of severance pay, by improving it; and the matter of call-in pay and reporting pay bY agreeing to provisions as they were in the exist- ing contract. The meeting on May 20 produced tentative agreement on those provisions involving reporting pay, visitation, availability of agreement, and discrimination. The Com- pany also agreed to add dependent coverage as it had appeared in the existing contract and to eliminate that portion of its proposal that eliminated dependents cover- age. The next meeting on May 24 was spent discussing, without significant progress, the hours of work provi- sion. As to the management-rights provision, the Union expressed its desire to return to the language of the exist- ing contract. Solano, however, maintained the Compa- ny's position that it wanted to retain the management- rights proposal as it appeared in its original proposal. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the May 26 session, further discussion ensued con- cerning the management-rights proposal The Union of- fered to accept, as the management-rights provision, the first nine lines of the Respondent's management-rights proposal, adding "Just" before "cause" on line seven and a period after "work" on line nine, so as to read. ARTICLE 31-MANAGEMENT RIGHTS 31.1 Except as expressly limited by a specific pro- vision of this Agreement, the Company reserves and retains and shall continue to have the sole and exclusive right to manage its business and direct the working forces, including, but not limited to, the right to plan, direct, and control operations, the right to hire, suspend, discipline, discharge for just cause or other legitimate reasons, the right to main- tain order and efficiency, transfer or promote, or to relieve employees from active duty because of lack of work On May 27 the Union offered several modifications to previous positions, as did the Company. The Union agreed to accept a 3-year contract, as proposed by the Company. The Union also agreed essentially to abandon its proposal on hours of work and overtime and to accept the existing contract language as to those items. The Company agreed to reduce its wage . reduction demand from 20 percent to 15 percent and also agreed to schedule workdays beginning with Monday, with the un- derstanding that employees could be recalled later in the workweek as dictated by production needs. On June 2, the last meeting before the strike, continu- ing give-and-take in discussion led to agreement being reached as to the matters of nonbargaining unit employ- ees, statute of limitations, jury duty, and overtime. It was also at the June 2 meeting that the Union made new pro- posals with the , view to reaching agreement on a man- agement-rights provision. These were a provision prohib- iting the subcontracting of bargaining unit work; a "cov- erage" provision generally providing for contract cover- age in the event of mergers, sales, transfers, etc., and a provision defining the Company's right to establish rea- sonable work rules. Solano summarily rejected these pro- posals as "unresponsive." Solano testified, "My feeling at this point is that this was not responsive to the Compa- ny's request on the management rights proposal and that in fact the Union had made new proposals which were in fact going backward, pulling away from the position that they had already come to and in fact were putting addi- tional burdens on the Company in this regard. This also resulted in the termination of the contract at that time, serving a letter which is in evidence." Thus Solano presented the Union with a typed letter giving the requisite written 24-hour notice terminating the day-to-day extension of the contract, to be effective the following day at 3 p.m. Elnyszky, who testified that he was "shocked," requested a further 90-day extention of the contract to pursue negotiations, which Solano re- jected. Elnyszky inquired about the availability of work the following week beginning Monday, June 6. Solano told him that work would be available; however, such work would be performed under the terms of those con- tract provisions on which tentative agreement had been reached, and Respondent's last proposal as to those pro- visions on which no agreement had been reached. Solano did, however, express a desire to continue the negotia- tions on June 2, but the Union declined further negotia- tions on that date because it wanted to consult Counsel about the new developments. On June 3, Solano wrote a letter, apparently hand-delivered to the Union, confirm- ing the terms under which work would be available on June 6 and expressing a willingness to Continue negotia- tions. Elnyszky next contacted Solano on Sunday, June 5. Elnyszky told Solano that the union members were ready' and willing to work -tinder the terms of the termi- nated contract, and that the Union was willing to extend that contract. Elnyszky asked if Respondent's proposal meant working with the reduced wages and benefits of the most recent company proposals and Solano replied affirmatively. During this conversation, a meeting was arranged for the morning of Monday, June 6. Elnyszky and Solano met about 7 a.m ; however this meeting was unproductive, both parties reiterating previously ex- pressed positions The employees did not report to work on June 6 since they were unwilling to accept the re- duced wages and modified working conditions put into effect by the Company at that time. They have been on strike since that time. The parties did, however, continue to meet. On June 15, they reached agreement on a seniority clause. On August 10 they reached agreement on a management- rights clause, including a provision limiting the subcon- tracting of unit work. The management-rights provision was one of the items which precipitated the Company's termination of the contract on June 2. Including the meeting on June 6, 12 bargaining sessions have been held since the strike began on various dates in June, July, August, October, November, and December 14, the day before the hearing in the instant case which produced agreement on call-in pay and pension provisions. One of the most vexing negotiating items involved the temporary transfer of unit employees from one job.to an- other. The existing contract provides for temporary transfers to be paid the higher wage rate. Also, as a matter of past practice, and not any specific contract provision, when an employee was so transferred from one job to another, the job from which he was trans- ferred could not be filled for the day. In some of the ear- lier discussions, particularly May 5, and as a part of a more comprehensive discussion about management rights, Respondent proposed to modify that practice to permit the Company to fill the transferee's job for the day. The Union opposed this proposal, and a discussion on that subject in various subsequent meetings failed to produce agreement. After the strike began, in negotia- tions on July 25 the Company submitted a proposal deal- ing with temporary transfers . and the Union responded thereto on August 10; however, despite discussions through December 14, the day before the hearing in the instant case, agreement has not yet been reached on that aspect of the , temporary transfer issue regarding the Company's right to replace the transferee, although HENRY MILLER SPRING CO. 477 agreement was reached as noted above, on a manage- ment-rights provision on August 10. , B. Discussion and Analysis The General Counsel contends that Respondent violat- ed Section 8(a)(5) of the Act by announcing and imple- menting its last contract offer despite the fact that no in- valid impasse in contract negotiations had been reached. Respondent argues that impasse had been reached and accordingly it was entitled to implement its last contract offer. Applicable precedent makes it clear that the parties in this case had an obligation to bargain in good faith over the terms of a new contract. However, this obligation does not run to infinity, and if .a valid impasse had been reached in the negotiating process, Respondent would have been free to announce and implement its last con- tract offer Presto Casting Co., 262 NLRB 346 (1982). Thus the controlling question is whether or not a valid impasse existed at the time Respondent announced and implemented its last contract offer, together with the other contract provisions tentatively agreed to at that time. Having carefully examined the entire record herein, I am convinced that no valid impasse existed. First, a review of the sessions prior to June 2 discloses that substantial progress had been made and agreement had been reached on 22 contract provisions, many of which were significant, including union shop, checkoff, arbitration, discharge, and discipline, and reporting pay. The last of the sessions on May 27 produced substantial concessions from the Union in -agreeing to modify its proposal from a 1-year contract to a 3-year contract, as proposed by the Respondent, and proposing to substitute the language of the existing contract for its proposal as to overtime and hours of work. Respondent also showed a willingness to compromise by reducing its wage reduc- tion demand from 20 percent to 15 percent, and agreeing to a workweek beginning on Monday. These sorts of substantial and productive negotiations certainly do not suggest the existence of an impasse. Similarly, on June 2, the day on which Respondent con- tends that an impasse was reached, parties held a lengthy and productive negotiating session during which agree- ment was reached on several more contract items. Even as Respondent terminated the contract and de- clared the existence of an impasse, Respondent expressed its intention to pursue negotiations and negotiating ses- sions were held all during the period of the stilke and continuing until the day preceding the hearing in the in- stant case. Not only were negotiating sessions continued, but agreement was reached on several outstanding con- tract items, including one which had proved most trou- blesome during prior negotiations, namely a manage- ment-rights article, including a paragraph limiting Re- spondent's right to subcontract work. In summary, nothing in this record suggests that con- tinued bargaining would have been futile Rather quite the opposite, where the facts show that continued bar- gaining could, and did result in agreement on several contract provisions. In these circumstances I cannot con.; dude that an impasse in negotiations existed at the time Respondent announced and implemented its ' contract proposals. The General Counsel also contends that Respondent refused to bargain, violating Section 8(a)(5) of the Act, by proposing and continuing to insist on an overly broad management-rights clause. The Supreme Court has held that the mere insistence on a management-rights clause is not a per se violation of the Act. NLRB v. American Na- tional Insurance Co, 343 U.S. 395 - (1952). However, the General Counsel argues that, by submitting to the Union a predictably unacceptable management-rights proposal, Respondent violated SectiOn 8(a)(5) of the Act. I do not agree. The record herein discloses that the management- rights ' proposal begins with the phrase, "Except as ex- pressly limited by a specific provision of this agreement". Such language provides the parties with the opportunity to negotiate other contract provisions in derogation of and limiting the effect of the management-rights proposal as written. The fact is that there was substantial negotia- tion, modification, and eventual agreement on a manage- ment-rights proposal. In these circumstances I conclude that, despite the comprehensive language of ,the Re- spondent's management-rights proposal, it was not .sub- mined in bad faith and no 8(a)(5) violation can be predi- cated thereon. 2. The unfair labor practice strike There remains for resolution the question of whether Respondent's unfair labor practices caused the Union to strike on June 6. The record supports this conclusion. On June 2, Respondent terminated the existing con- tract and, as I have concluded, committed the unfair labor practice of announcing that, as to the contract items still open, it would implement its most recent con- tract proposals. While work was available on June 6, it was available only under those conditions. The Union suggested continuing to work under the terms of the ex- isting contract, but Respondent refused. Respondent reit- erated its position on June 5 and 6, and the Union, un- willing to work under those reduced conditions, went on strike. Clearly the reason for the Union's refusal to work was Respondent's unfair labor practices. The cause-and- effect relationship between the Respondent's labor prac- tices and the Union's refusal to work is manifest, and I conclude that Respondent's unfair labor practices caused the strike in the instant case. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, in connection with Respondent's operations de- scribed in section I, above, have a close and intimate re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I recommend that it 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist therefrom and take• certain affirmative action designed to effectuate the policies of the Act. Having concluded that the strike which began on June 6, 1983, was an unfair labor practice strike from its in- ception, I find that it will _effectuate the purposes of the Act to order Respondent to offer to all strikers who make ,unconditional offers to return to work immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, dismissing, if neces- sary, any person hired on or after June 6, 1983, and make them whole for any loss of earnings they may suffer as a result of Respondent's refusal, if any, to rein- state them in a timely fashion, by payment to each of them a sum of money equal to what they would have earned as wages during the period commencing 5 days after the date on which each one unconditionally offers to return to . work to the date of Respondent's offer of reinstatement, less any net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). The Board has found that the 5-day period is a reasonable accommodation between the interests of the employees in returning to work as quickly as possible and the employer's need to effectuate that return in a or- derly manner. Accordingly, if Respondent herein has al- ready `rejeCted, or hereafter rejects, unduly delays, or ig- nores any unconditional offer to return to work, or at- taches unlawful conditions to its offer of reinstatement; the 5-day period serves no useful purpose and backpay will commence as of the unconditional offer to return to work. Any dispute as to who is to be offered reinstatement and what backpay if any is due shall, if necessary, be de- termined 'at the compliance stage of this proceeding., CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 22), (6), and (7) of the Act. 2. District Lodge 63, International Association of Ma- chinists and Aerospace Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees includ- ing working foreman and truckdrivers of Henry Miller Spring & Manufacturing Company, Inc., Pittsburgh, Pennsylvania, excluding all office clerical employees, watchmen and guards, professional employees and super- visors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein District Lodge 63, International Association of Machinists and Aerospace Workers, AFL-CIO has been the exclusive collective- bargaining representative within the meaning of Section 9(a) of the Act for all of Respondent's employees em- 4 See generally Isis Plumbing Go, 138 NLRB 716 (1962) ployed in the unit described above in Conclusion of Law 3. 5. The strike which commenced on June 6, 1983, was an unfair labor practice strike from its inception. 6. By unlawfully announcing on June 2 and imple- menting on June 6 its last contract proposals, without a valid impasse having been reached, Respondent violated Section 8(a)(1) and (5) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 ORDER Respondent, Henry Miller Spring & Manufacturing Company, Inc., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with' District Lodge 63, International Association of Machinists , and Aerospace Workers, AFL-CIO as the exclusive re- pre- sentative of its employees in the appropriate unit set forth herein above by unlawfully announcing on June 2 and implementing on June 6 its last contract proposals, without a valid impasse having been reached. - (b) In any like or related manner interfering with, re- straining, or eoercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Abt. (a) Bargain collectively and in good faith with District Lodge 63, International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive repre- sentative of all the employees in the above-described unit and embody any understanding reached in a signed agreement. (b) Honor and enforce the terms of the collective-bar- gaining agreement with the above-named Union which expired June 3, 1983, until a new agreement is reached. ,(c) On application, offer immediate and full reinstate- ment to their former positions or, if those jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights and privileges, to all those employees who went on strike on June 6, 1983, or thereafter, dismissing if necessary any person hired by the Respondent on or after that date, and make them whole for any loss of pay which they may have suffered by reason of the Respondent's refusal, if any, to reinstate them in conformity with the section of this decision enti- tled "The Remedy." (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. 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 HENRY MILLER SPRING CO 479 (e) Post at its premises at Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- 6 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" spondent's authorized representative, shall be posted by the Respondent immediately upon 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 Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (0 Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply