Browning-Ferris Industries Of Pennsylvania, Inc.

BROWNING-FERRIS INDUSTRIES 71 rowning- ]Ferris Industries of Pennsylvania, Inc. and Refuse & Salvage Drivers & h-helpers Local Union No. 609 affiliated with International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Case 6-CA- 16284 10 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 27 July 1984 Administrative Law Judge Burton S. Kolko issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs. 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, i and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Browning- Ferris Industries of Pennsylvania, Inc., Carnegie, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 In the absence of exceptions, the Board adopts pro forma the judge's finding and conclusion that the Respondent violated Sec 8(a)(1) of the Act by creating an impression among employees that their support for the Union was futile 2 Member Dennis agrees with the judge's conclusion that there was no 8(a)(5) violation She notes there was an objective basis for the Respond- ent's proposals For instance, although the pay proposals for drivers would result in a serious reduction in wages, the proposed rates were comparable with the Respondent's competitors On the other hand, the landfill employees' wages were competitive and the Respondent proposed a 1-year freeze with second- and third-year increases Thus, the Respond- ent's proposals were keyed to the wage rates of its competitors' con- tracts, and the Respondent demonstrated a willingness to engage in the give and take of collective bargaining Member Hunter's adoption of the judge' s dismissal of the 8(a)(5) allega- tion is not based on the content of the Respondent's bargaining proposals, see Allbritton Communications, 271 NLRB 201 (1984), citing Chevron Chemical Co, 261 NLRB 44 (1982), beyond his finding that the Respond- ent's proposals were not harsh, vindictive, or otherwise unreasonable on their face Chairman Dotson agrees with his colleagues' conclusion that there was no 8(a)(5) violation but would not attempt to evaluate the reasonableness of a party's proposals Struthers Wells Corp v NLRB, 721 F 2d 465, 470 (3d Cir 1983), Allbritton Communications, supra, at in 13 DECISION BURTON S. KOLKO, Administrative Law Judge. The collective-bargaining agreement between Browning- Ferris Industries (BFI) and Local 609 of the Refuse and Salvage Drivers and Helpers Union expired on March 31, 1983. During that March the parties met several times to discuss a new contract, but did not reach agree- ment. A strike by the drivers ensued, which endures. The Union made an unconditional offer to return to work on April 25, 1983 That offer was rejected by BFI, which had hired permanent replacements. Subsequently, some of the striking drivers were brought back to work. The Union filed a charge on April 1, 1983, which result- ed in the General Counsel's twice amended complaint of May 2, 1983, alleging principally that BFI (a) failed to bargain in good faith under Section 8(a)(5) of the Act, (b) solicited decertification action among employees and interrogated them about their union attitudes, thereby violating Section 8(a)(1) of the Act, and (c) violated Sec- tion 8(a)(3) of the Act in failing promptly on their un- conditional offer to return to work to reinstate the strik- ing drivers. I find for the General Counsel on some of the 8(a)(1) issues, and dismiss the complaint on the 8(a)(3) and (5) issues. 1. THE SOLICITATIONS AND INTERROGATIONS REGARDING DECERTIFICATION BFI's Pittsburgh area operations underwent a change of management in April 1982. Cecil Medrick was trans- ferred there from Youngstown, Ohio, to become the dis- trict manager. Medrick became aware that BFI's sales and revenues were declining,' and he determined to arrest and reverse that trend. Of particular concern to him was that a large contract for residential service in Mt. Lebanon, Pennsylvania, had been lost to a competi- tor in a different county. That competitor, Chambers De- velopment Company, like BFI was a unionized oper- ation, but unlike BFI dealt with a different local and op- erated with a lower wage scale.2 Medrick felt that the wage scale at BFI made the firm noncompetitive, and since the wage scale was at the root of the problem he determined that one way or another he would fix it. The most overt manifestations of Medrick's determina- tion came in late 1982 and early 1983 as the contract's expiration loomed closer. Given the expiration date of March 31, 1983, Medrick was aware that the crucial open period (90 to 60 days before the contract had ex- pired) for filing a decertification petition with the Board was at hand. Medrick testified (Tr. 684) that during De- cember 1982 and January 1983, he had conversations with employees to ask if they had, in anticipation of the new contract to be negotiated, "any ideas or any input that might be of benefit to me to help overcome some of this." The General Counsel focuses on several of these conversations as indicating that Medrick and Operations Manager William Pittman attempted to drive a wedge between the employees and their Union either to weaken the Union or to dispense with it altogether. We will deal with these in chronological order. 1 "We were averaging about $13,000 to $15,000 a month in lost sales to competition at lower prices " (Tr 684 ) 2 Medrick had been unsuccessful in his efforts in late 1982 to have the Teamsters' Eastern Conference keep Local Union 585, with its lower contract rate, out of the territory served by BFI and Local Union 609. 275 NLRB No. 21 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. December 1, 1982-Robert Shapiro Driver Robert Shapiro testified that he approached Medrick as Medrick concluded a conversation with driver Anthony Mineo. According to both Shapiro and Mineo, Medrick asked them if they had given any thought to the upcoming 'contract talks, and whether they had ever thought about negotiating one on their own. They responded no, whereupon, they testified, Me- drick told them that the Union was causing him to do things he did not want to do; that if he could find a way of getting around the Union. he would do so; that getting rid of the Union would be beneficial to them; and that they should consider doing this because BFI could offer them greater benefits if it did not have to contend with the Union. Medrick denied having a conversation with both Mineo and Shapiro. On cross-examination, he admitted he could have talked with one of them, but that he did not talk with them together, in the course of talking with individual employees during December and January for ideas that would help the Company out of the competi- tive disadvantage it felt it was in. BFI introduced employee timecards"(R. Exhs. 14 and 15) that give greater credence to Medrick's testimony. Shapiro's timecard for the week ending December 4, 1982, shows that he worked neither December 2 nor 3. Mineo's card shows that he did work on both of those days. Shapiro was firm in his rebuttal testimony that the conversation took place after he had returned from his route, which was from 2:30 to 3 p.m. He was less firm about the date. BFI points out that the cards show Shapiro not work- ing on the day he said the conversation occurred, and that Mineo clocked out around 11 a.m., hours before the time testified to by Shapiro. Mineo is shown as clocking in just before midnight, and clocking out between 10:30 and 11:30 a.m. each day that week. Having worked a very long day, why would he still be on the BFI prem- ises 3 hours later? The record does not state why, and I do not find a credible reason to infer that he was. Ac- cordingly, I find Medrick's testimony regarding this con- versation to be the more credible, and find no violation. B. December 2, 1983-Ron Park Park had been off work for some period of time prior to December 2, 1982 , on a work-related injury. On De- cember 2, 1982, a grievance hearing was'held at the office of Medrick concerning the discharge of employee Leo Henne. Present for the Company were Medrick and William Pittman . Present for the Union were Red Ken- nedy, the secretary-treasurer and business agent of the Union, Ron Park, the union. steward, and the grievant, Leo Henne. , According to Park's testimony, following the meeting he was departing Medrick's office and was stopped in the hall by Medrick. Park testified that Medrick ap- proached him and mentioned that Park was held in high regard by the other employees and that while Medrick had plans for the Company , there was no future hope for the Union, Park should begin to let the men know the Union had no future. Park testified that later that same day he was in the downstairs area at the Company's facility around the dis- patch -office when Medrick and Pittman approached and stated that if Park could come into the shop and handle union business while out on disability, there was' a chance he might lose his workmen 's compensation. Park testified he took the statement seriously and "never at- tended" union matters at the Company again (Tr. 17). Medrick testified that following the meeting on Henne he immediately went into a meeting with another em- ployee, Dan Datz, and that after the Henne meeting Park, Kennedy, and the grievant left together. Medrick specifically denied that he talked with Park in the hall- way or said anything concerning the Union to Park. Pitt- man testified he did not overhear any such conversation. Medrick and Pittman both denied seeing Park later in the day at the Company's facility. In addition to eliciting denials from Mednck and Pitt- man that these conversations with Park occurred, BFI notes the improbability of Medrick, with 10 years' expe- rience in managing a unionized shop , stating to a union steward that his Union had no future. In that same vein, it notes that Medrick's experience mitigates against his bringing up workmen's compensation to Park . Further, BFI wonders that Park gave no reason for being at the plant later in the day, well after his reason for being there as steward had, presumably , passed. But Park was never asked why he was still there-in fact on cross-examination he was never asked any ques- tions about these conversations. Where he was ques- tioned, he testified convincingly. BFI did not produce Dan Datz to testify in support .of his meeting with Me- drick at the time when Park says Medrick told him the Union had no future, and in all the circumstances I credit Park that these conversations took place. Their legal effect is, in part, another matter. On the matter of the morning conversation I agree with BFI that "[i]f Park's testimony is believed , a violation of Sec- tion 8(a)(1) would be present since, according to Park, Medrick created the impression that there was no future for the Union at the Company ." (Br. 50-51) Creating an impression among employees that their support for a union is futile is a violation of Section 8(a)(1), Air Prod- ucts & Chemicals, 263 NLRB 341, 347 (1982). According- ly, Medrick's statement to Park that the Union has no future, and his solicitation of Park to spread that mes- sage, both tended to coerce employees in the exercise of their rights under Section 7 of the Act and , therefore, violated Section 8(a)(1) of the Act. On the other hand, the later remarks from Medrick and'Pittman concerning workmen's compensation are not a violation. I do credit Park that . the remark was made, since it is not the least improbable that Medrick , already piqued at the Union for impeding BFI's competitiveness, was less than delighted to encounter a disabled employee who was not at the Company to work but to represent the Union . But the remark stands alone-a passing wise- crack-and strikes me as being too ambiguous under the circumstances to constitute a threat or otherwise inter- fere either with Park's own rights under the Act or his BROWNING-FERRIS INDUSTRIES capacity to act for others as steward. Cf. Rossmore, House, 269 NLRB 1176 (1984):3 C. January 6, 1983-Vic Wilczynski Driver Wilczynski visited Pittman's office to discuss a scheduling problem. He testified that after discussing that problem, - Pittman asked him what he thought of the men's morale. Wilczynski said that morale was pretty low. Pittman then asked Wilczynski if he had given any thought to decertifying the Union. Wilczynski said no, and that he did not know what Pittman meant by decer- tifying- the Union and how it would benefit the men.. Wilczynski testified that Pittman then told him that there was a 30-day period for filing for decertification with the Board; that decertifying the Union would be beneficial to the employees and to BFI; that the employees could have a company union and not have to pay union dues, and could have their own business agent, bargaining committee, and pension plan; and that a decision whether to seek decertification was up to the employees, BFI could not be involved in it. Pittman asked Wilczynski to "talk with the men about it and get their opinions, and see what they thought about it." (Tr. 164.) "And I told him that I would try to do this but at the time the men were kind of upset with myself because the Company had given me back my seniority which they didn't think was right." (Tr. 126.) Pittman's testimony about this conversation differed in one material respect, which was that after Pittman had asked Wilczynski about the morale of the men, Pittman asked if the men were talking about decertification, to which Wilczynski replied that he did not know of any talk, and that he did not know anything about decertifi- cation. Pittman testified that Pittman said, "You're in the same boat with me. But I can tell you the company has to stay out of it and I can't get involved with it either." According to Pittman, Wilczynski "more or less went on to say if he heard anything about it he would get back to me, but he never did." (Tr. 727.) Pittman further testified that when he queried Wilczynski'about decertification he himself had not heard any employees talking about that issue. Having observed both Wilczynski and Pittman testify, I credit Wilczynski's version of the conversation . His tes- timony had the greater ring of sincerity and complete- ness, whereas Pittman's testimony struck me as holding back. Thus, I find that the interrogation about and solici- tation for the Union's decertification took place as de- scribed by Wilczynski. Still, BFI passes it off as a remark without any actual or potential coercive effect. The Gen- eral Counsel looks at it as a naked example of BFI's atti- tude, that as of April 1 it would be rid of the Union orat least its contract. The operative question is whether the questioning rea- sonably tended to coerce under the circumstances. Graham Architectural Products v. NLRB, 697 F.2d 534 (3d Cir. 1983). The circumstances are that the remarks 3 While Park testified that he took it seriously and, therefore, "never attended the shop under union representation again" (Tr 17) he contin- ued to function as steward and attended all but one of the several bar- gaining sessions in March 1983 73 made by Pittman occurred in a meeting in which an em- - ployee was seeking scheduling relief from his operations manager . In the course of that discussion the operations manager, in his office, brought up the morale in the shop. So far, there was nothing amiss. He then intro- duced'the subject of the Union's decertification-one that he himself had heard no prior talk about in the shop-to explain how it could be done and what the ef- fects would be. He then concluded by asking the em- ployee to let him know if others did or would support the idea. This is not the stuff of innocuous conversation that BFI would have us believe. The parties, context, subject matter, and text of the conversation all convey the impli- cation that the Employer was using his leverage to influ- ence the employee on a question of union representation. Thus, it is both an interrogation and a solicitation that violated the-employee's Section 7 rights, and a dual vio- lation of Section .8(a)(1) of the Act. Air Products & Chemicals, supra. There is a second January 6 incident that is less easily resolved. Employee Ray Fazio testified that on January 6, 1983, he was called into Pittman's office where he met with Pittman and Medrick regarding excessive breaktime having been taken by Fazio and -other employees that morning. Fazio further, testified that after being told by Medrick that he could be fired or reprimanded, Medrick mentioned the possibility of decertification. When Me- drick asked Fazio to assist, Fazio declined. Medrick stated that working conditions and the pension plan could be improved if the Union .were to be decertified. Although Fazio did not so testify, he acknowledged that his affidavit, taken 6 months earlier, contained a refer- ence to the possibility of Medrick having mentioned a meeting with other employees to discuss decertification, that Fazio declined to participate, and that Medrick shook his hand and said "no hard feelings."(Tr. 227.) Both Medrick and-Pittman denied that any conversa- tion with Fazio took place at any time involving decerti- fication, and both were firm that no conversation of any kind with Fazio took place on January 6. They recall the "stealing time" • conversation as -having taken place in September 1982. In this, they are bolstered by Respond- ent's Exhibits 11 and 16, which respectively are Fazio's route , sheet for September 22, 1982, which purports to show time cheating, and BFI's letter of September 27, 1982, to Local 609 concerning discipline of Fazio and others. There is- no record evidence of a time cheating/stealing concern in late 1982 or early 1983. Moreover, Respondent's • Exhibit 13, Fazio's timecard, shows on its face that he was scheduled off on January 6. Medrick testified that the timeclock was off by one day that week and that Fazio was on leave because it was his birthday. Either way, the evidence compels doubt about Fazio's. testimony, doubt that is heightened by what even the General Counsel concedes was Fazio's confusion and nervousness. While Fazio's affidavit (G.C. Exh. 13) does relate efforts by Medrick that track Wilc- zynski's credited testimony about Pittman's efforts at in- terrogation and solicitation toward decertification, the preponderate weight of credible evidence puts any such 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements by Medrick to Fazio in September 1982, not January 1983, hence outside the complaint's ken. D. January 13, 1983 Medrick met with Union Stewards Shapiro, Winger- son, and Park on January 13, 1983. All four testified about this meeting and were consistent that these points were discussed: the Company's competitive position (es- pecially vis-a-vis the encroaching Chambers Develop- ment Company); the Company's need to lay off some men; the upcoming contract negotiations; some employ- ees' dissatisfaction with the Union (because of a recent election in which the "city" slate won over the suburban drivers' slate); and whether a company union had ever been considered. Park's and Wingerson's testimony indi- cate that Medrick expressed dissatisfaction with the Union and asked if they had ever considered a company union. Shapiro testified that Medrick also asked if they had considered decertification, and that Medrick told them to go to the NLRB if they were interested in de- certification. Medrick testified that he called the meeting to discuss the deteriorating competitive situation with the goal of improving productivity through route tightening and "relief . . . somewhere down the road." (Tr. 685.) The conversation that followed encompassed recent layoffs and some on the horizon; unrest among the men brought on by the stewards because the "city barns" were "always ruling the private haulers in the area" (Tr. 687); the attempt to have the Teamsters' Eastern Conference intercede with its local working for Chambers Develop- ment Co. from undercutting Local 609's wage rates; and a forthcoming breakfast meeting concerning the upcom- ing contract renewal to which Medrick was invited (and later declined when he learned that union officers would be present). The meeting concluded with the stewards agreeing to see what they could do to enhance produc- tivity, and to see what guidance they could get from the men for the upcoming contract talks. When asked whether anybody mentioned decertifying the Union, Me- drick said no. When asked whether any discussion was held on the men going to the NLRB, Medrick responded (Tr. 692): At one time, and I'm not so sure whether it was in that specific meeting or not, the question came up about decertification. And I told the men that I could not participate in it, that I wouldn't. But if they wanted to decertify, it was a decision that they would have to make on their own. That they would need to seek legal counsel, or someone for advice, and possibly visit with the Labor Board, to get their assistance from there. The stewards varied slightly in their recollections of the meeting. Park testified that after Medrick and the employees discussed negotiations, the conversation shift- ed to the upcoming layoffs and then progressed into a general discussion about unions in general. Shapiro testi- fied that after the layoff issue was resolved, the discus- sion centered on the Company's competitive problems in the market place. Wingerson testified that the discussion relating to the poor competitive situation occurred in connection with the discussion of layoffs and that the conversation then centered on the upcoming negotia- tions. According to Wingerson, Medrick noted that the Union had a newly elected Board, stated he was not in favor of unions because they "are strong," and spoke of the value of dealing directly with the men and a compa- ny union. At this point, Wingerson testified, the meeting ended. According to Shapiro, while the men were discussing the Company's poor competitive position, Shapiro asked Medrick what was hurting the Company the most and Medrick responded by saying the Union. Medrick went on to state that he would prefer not to deal with the Union, if possible, and asked if they had ever considered decertifying; if so, they should contact the National Labor Relations Board. Medrick also stated that he un- derstood there was some employee dissatisfaction with the Union, in 2 years' time unions in Pittsburgh would be nonexistent, and that BFI' s plans did not include the Union According to Shapiro, the meeting ended with a discussion of Medrick's attendance at a breakfast meeting Park had set up for the purpose of discussing the upcom- ing contract negotiations. Park testified that after the participants discussed the layoffs, the talk (without attribution as to who or how started) went to unions in general . According to Park, Medrick then commented on the newly elected union board and the lack of concern the Union had for the Company's employees. Park then asked Medrick if he had talked to others about decertification and received an affirmative response . The meeting then ended with the breakfast meeting discussion. All of this testimony was given by witnesses who testi- fied without apparent hesitation, difficulty, or prompting. And on the general points made in the meeting, the wit- nesses do not materially disagree. There is disagreement on the extent to which decertification was discussed, and by whom it was raised. Given Medrick's uncertainty "whether it was in that specific meeting or not [that] the question came up about decertification," and the testimo- ny of the stewards that it did come up in the January 13 meeting, I find that it did. And I credit Wingerson, as corroborated by Park and Shapiro, that it was Medrick who brought it up. "[H]e also spoke of decertification of the Union and forming a company union. He tried, he told us . . . what he thought his values of a company union verses a union would be." (Tr. 254.) The upshot is that I credit the stewards, and find that Medrick's statements to them, while not tending to be coercive, did constitute a solicitation to abandon the Union and tended to lead the employees to believe their continued support of the Union was futile. It is clear that Medrick was very troubled by BFI's wage scale, which he laid at the Union's door. Getting rid of both those wage scales and their cause-the Union-was at the top of his list. With one-half of the open period remaining in which to decertify the Union, it was too tempting not to suggest it without being too pushy, which Medrick was wise enough to know could backfire. His hope was that BROWNING-FERRIS INDUSTRIES there was enough griping about the Union in the shop that his idea would bear fruit.4 Medrick's statements tended to interfere with employees' Section 7 rights and, hence, are violative of Section 8(a)(1) of the Act. II. WHETHER BFI'S BARGAINING WAS DONE IN GOOD FAITH With the contract between BFI and Local 609 set to expire on March 31, negotiations began on March 11. Further sessions were held on March 22, 23, 24, and 31. No agreement was reached, the Union having taken votes on March 27 and 31 that overwhelmingly rejected BFI's offers. A strike began on April 1, and that day BFI began hiring replacements for the strikers. The replace- ments' terms and conditions of employment were written out by BFI on April 4, essentially embodying the pro- posal made by BFI on March 24. On April 28, at a medi- ation session, the Union made an unconditional offer to return to work. From that date through September 27, 1983, BFI recalled 15 striking employees. The General Counsel argues that from these events the Act was violated by BFI by (1) its failure to bargain in good faith, (2) its implementation of terms and conditions of employment that differed from those in the expired contract, and (3) its failure to recall all of the striking workers. A. March 11 BFI's initial proposal contained many provisions that were a departure from the existing contract. Indeed, the General Counsel's brief details 20 such changes. But the salient changes, those that divided the parties in all of the bargaining sessions, were simply (1) the change from a 4- to 5-day workweek, and (2) the establishment of an "incentive pay plan" to effect a pay cut by replacing the flat hourly rates with volume based rates and drastically reducing overtime paid by abandoning the "time-and- one-half" methodology and replacing it with a "legal overtime" method which paid less for each hour of over- time worked. The BFI proposals were made orally, in response to the Union's opening proposals. These were few. The Union sought hourly pay increases for the 3-year dura- tion of the proposed contract of $1 (first year), $1.25 (second year), and $1.50 (third year) for regular drivers. In addition, the Union sought to retain the 45-hour work guarantee, the 4-day workweek, and time-and-one-half pay for overtime. Thus, the parties were already headed in opposite di- rections. What the Union wanted to increase or retain as a matter of course, BFI wanted to eliminate. Naturally this first meeting produced no agreement. Mostly it in- volved BFI explaining to the Union what its proposals were and how they departed from the status quo. After several hours of discussion the parties agreed to meet next on March 22. 4 It did not In February, the Union informed BFI that it was ready to start contract negotiations at BFI's "earliest convenience " 75 B. March 22 At that meeting the Union submitted another written proposal, this one hewing very closely to the existing contract. There was a smaller hourly pay increase re- quested in the first year-75 cents-and in the second year-$1. Again requested were the existing practices of payment on a weekly basis, payment of overtime work at 1-1/2 times the fixed base rate, retention of premium pay (twice the regular hourly rate) for Sunday work, reten- tion of the 45-hour guaranteed workweek, retention of the 4-day workweek, and an 11 -1/4-hour cap on required hours in a day's work. The ensuing discussion produced agreement on some other issues, but as General Coun- sel's witness Casey put it [t]hese issues were just the ones that continued to stand out." (Tr. 325.) The Union learned that under the incentive pay plan that BFI wanted to implement, from 6-17 drivers would be laid off. Casey testified that "[t]hat was one of the reasons why the [Union's negotiating committee] wanted to stay on an hourly wage, a guaranteed workweek and a cap on hours." (Tr. 325.) But during the discussions- which were in fits and starts because each side would caucus for an hour before talking again-BFI stayed firm. It did produce pay rate proposals that differed slightly from a previous proposal (Casey testified that the rate kept dropping each time BFI returned from a caucus), but did not budge off the basic concept of its plan to eliminate the hourly rate, eliminate the guaran- teed 45 hours, change the overtime calculation to reduce it drastically, and change the workweek from 4 to 5 days. BFI's firmness of purpose was exemplified by re- jecting the Union's offer to have a contract similar to the new one that BFI offered landfill employees, where wages were frozen at renewal levels in the first year and small hourly increases were programmed for the second and third years. The Union recognized that major differences existed between the parties, and asked that if by March 31 they still had not come to terms, whether the expiring con- tract could continue to apply until the negotiations had produced an agreement. As Casey testified, the response of Harper, BFI's counsel and chief negotiator, was "hell no," that doing so would be of no benefit to BFI (Tr. 319). C. March 23 Early in the March 23 session, the Union submitted an- other written proposal to BFI's bargaining committee (G.C. Exh. 7). In this proposal, the Union continued to seek a 4-day workweek, a 45-hour weekly work guaran- tee, retention of Blue Cross and Blue Shield insurance coverage, retention of an hourly rate of pay with a freeze on wages in the first year of the contract and ne- gotiations on the second and third years of the contract, a freeze on vacations as they existed in the expired con- tract, a tradeoff of 1 sick day for a $2 increase in the pension contribution by BFI during the first year of the contract (years two and three proposed as negotiable), a way to circumvent implementation of a provision requir- ing that employees take a polygraph test, and several other minor changes. Upon receiving the Union's pro- 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posal, the BFI committee caucused privately to review it At the conclusion of its private meeting, BFI's bar- gaining committee returned and, without discussing the Union's proposal, submitted its handwritten proposal styled, "Company's Bottom Line Offer" (G.C. Exh. 8). In this proposal, BFI proposed alternative 4-day, 5-day weeks to be selected by bid based upon company seniori- ty on a system basis, with only employees whose names were on the preferential list under the existing contract being eligible for a 4-day workweek. In addition, this "Bottom Line Offer" included a financial proposal that determined pay based on daily volume hauled, elimina- tion of the workweek hours guarantee, a freeze on other fringe benefits, no purge on disciplinary memoranda in personnel files (the Union had proposed a purge of writ- ten disciplinary notices after 6 months), and a one-year freeze on wages with 25-cent increases in the second and third years for landfill employees. The Union reviewed this "Bottom Line Offer" with BFI's representatives before retiring to discuss this pro- posal privately and to formulate a counterproposal. After private deliberations, the Union's bargaining committee returned to BFI's committee and presented its second proposal of March 23 (G C. Exh. 6). In presenting this proposal, Casey reminded BFI's committee that the March 31 contract expiration date was approaching, and once again requested that BFI consider extending the ex- isting collective-bargaining agreement to allow the par- ties sufficient time to reach contractual agreement in the event their efforts were unsuccessful by that date. How- ever, BFI again rejected this request. In its second proposal of March 23, the Union modi- fied its stance on the 4-day workweek. For the first time, it proposed a 5-day/4-day workweek that would permit employees to bid for a workweek based on system and/or company seniority. An employee bidding on a 5- day workweek would necessarily work that schedule for a period of at least 1 year. The Union continued to reject BFI's offer of a change in payment from an hourly rate to an incentive method of payment based on volume moved. The Union proposed that wages be frozen for 1 year with years two and three of the proposed contract to be negotiated, overtime at the rate of 1-1/2 times the fixed base for commercial employees (after 40 hours per week) and residential and landfill employees (after 8 hours per day and/or 40 hours per week), and retention of the 45-hour-per-week guarantee (which was indicated to be negotiable). According to Casey's testimony, during the course of this March 23 meeting the Union verbally modified its proposal offering a 1-year freeze and proposed a wage freeze which would run the entire 3-year duration of the contract.5 In addition, the Union proposed to reduce the weekly hour guarantee from 45 hours to 40 hours, thereby not requiring BFI to employ bargaining unit employees at overtime rates. Further, the 5 Harper, BFI's negotiator and counsel, testified that the Union only offered to freeze wages in the first year, as part of the Union's repeated offer to accept a contract like that offered to BFI's landfill employees I credit Casey's version Union proposed to give up some of its vacation and sick days. These economic offers were all rejected by BFI D March 24 This session began around 10 a.m. with the Union pre- senting its first written proposal of that day (G C. Exh. 24). In this proposal, the Union, for the first time, moved from its position on retention of an hourly rate of pay and proposed an incentive form of payment similar to that which BFI had insisted on throughout negotiations. The essential differences in the Union's incentive plan and the incentive plan proposed by BFI was the amount of money the employees would be paid The Union pro- posed that rolloff drivers receive $25 per day plus $18 per load in zone one (maximum of six loads per day), $22 per load in zones two and three (maximum of five loads per day). The incentive pay proposal for frontend load- ers was $15 per day plus 26 cents per yard and, for rear- end loaders, $40 per day plus 46 cents per yard. This proposal accepted the minimum yardage proposals under BFI's incentive plan. Under this proposal by the Union, the incentive pay offer for all the drivers was based on a proposed 4-day workweek. Upon reviewing this proposal by the Union, Harper informed the Union's committee that there was no way that BFI could live with this Union proposal, that he felt that the parties "were back to day one on these issues again" (Tr. 346), and that there was no way that the Company would agree to this union proposal. BFI's committee again caucused and later returned to the full bargaining session with a proposal captioned, "Final Offer" (G.C. Exh. 26). Under this proposal, all employees would be required to work a 5-day week, except that employees whose seniority made them eligi- ble for the preferential list under the contract then in effect would have an option of bidding on a 4-day work- week. The days constituting the workweek could be nonconsecutive, at the Employer's discretion. According to the General Counsel, this incentive pay proposal rep- resented at least 20 percent less than the value of the in- centive proposal offered by the Union. In submitting this proposal to the Union, Harper in- formed the union committee that he wanted this proposal taken back to the membership for a vote. At this time, there remained the same differences between the parties regarding the number of hours employees would be re- quired to work on a daily basis and whether there would be a cap on hours, whether employees would receive time-and-one-half pay or "legal overtime" pay for hours over 40 hours per week, 4-day versus a 5-day workweek, uncertainty regarding the number of employees to be laid off if a 5-day workweek replaced the existing 4-day workweek, the Blue Cross and Blue Shield plan versus BFI's own insurance plan, and the basis and method on which holiday pay would be computed. Following a brief review and discussion of BFI's "Final Offer" and having been told by Harper that BFI wanted the Union to take this "Final Offer" back to the Union's membership for a vote, Casey testified, the Union informed BFI's committee that it did not believe that the membership would accept this proposal. Howev- BROWNING-FERRIS INDUSTRIES er, the Union again caucused and prepared another in- centive pay proposal, calling it "Final Union Proposal" (G.C. Exh. 27). In this proposal, the Union decreased the demand contained in its initial incentive pay proposal of March 24, by approximately 5 to 10 percent. Concluding this caucus, the Union presented this incentive proposal to BFI's committee. Rejecting this proposal, Harper told the union committee that there was no way BFI could afford to pay the rates which the Union proposed. He said that his proposal styled, "Final Offer," was what he wanted the Union to take back to its membership. To this, Casey informed Harper that the union committee was unclear on various matters regarding BFI's proposal, and informed him that the union committee did not be- lieve that its rank-and-file members would accept it. Thereafter, BFI's committee retired for a private meet- ing that lasted about 2 hours. At its conclusion, BFI pre- sented the Union with a proposal captioned, "Company's Final Response to Union's Final Offer" (R. Exh. 7). Like BFI's "Final Offer" this "Company's Final Response to Union's Final Offer" contained an incentive wage pro- posal. Comparatively, "Company's Final Response to Union's Final Offer" represented an incentive wage in- crease of less than three-tenths of 1 percent over its in- centive wage offer contained in its "Final Offer." In this "Company's Final Response to Union's Final Offer," BFI, presuming a 5-day workweek for all employees except those who were already on a preferential list based on the existing collective-bargaining agreement, in- creased its incentive wage offers to rearend loaders by $1 per day or $5 per week, frontend loaders by 1 cent per yard or approximately $22 per week, and rolloff drivers by a maximum of only 50 cents per day or $2.50 per week. This last proposal by BFI also contained a wage proposal for landfill employees that permitted the landfill employees to retain their hourly wages frozen for 1 year and followed by increases of 35 and 40 cents in the second and third years of the contract, respectively. Var- ious members of the committee asked Harper to offer the remainder of the bargaining unit the same proposal. Harper rejected this proposal and reiterated that if a con- tract were not reached by March 31, the bargaining unit employees "would be in the street" (Tr. 356). Harper then insisted that the union committee take the "Compa- ny's Final Response to Union's Final Offer" to its rank and file for a ratification vote Reluctantly agreeing to present this proposal to the rank-and-file membership for a vote, Casey inquired of Harper whether BFI would be amenable to continuing negotiations past the March 31 contract deadline in an effort to reach a contract, in the event that the membership voted against BFI's offer. Harper's response was that he thought that he had made it clear that there would be no extensions of the contract for any purpose. The meeting then ended with the Union agreeing to present the "Company's Final Response to Union's Final Offer" to its membership for a vote. The vote that was urged by Harper was held on March 27. The commercial drivers voted 75 to 1 against; the residential drivers voted 22 to 0 against. E. March 31 77 The March 31 bargaining session got underway around 10 a.m. with Casey's introduction of Attorney Orsatti to BFI's bargaining committee. Orsatti informed the bargaining committee that the "Company's Final Re- sponse to Union's Final Offer," while having been voted down by the membership, was not considered a final offer by the Union, and asked to continue negotiating in search of a proposal that could be presented to the mem- bership as a final offer. Harper informed Orsatti that he would review the Company's position regarding the "Company's Final Response to the Union's Final Offer" and that BFI's committee would attempt to prepare a final offer for presentation to the rank and file. Shortly after noon, BFI's committee returned to a full session with the Union's bargaining committee and pre- sented a document captioned, "Company's Final Offer" (G.C Exh. 9) that contained two options: option A-the Company's final offer of 3-24-83; and option B-the Company's final offer of 3-24-83, except (1) no incentive pay but a day rate of pay and "legal" overtime and (2) route completion required but 12 hours per day cap oth- erwise. The day rates proposed were as follows: com- mercial drivers (regular and relief drivers) first year- $92.50, second year-$95, and third year-$100; residen- tial drivers first year-$65, second year-$67.50, and third year-$70; and residential helpers first year-$60, second year-$62.50, and third year-$65. Option B represented the first time that BFI had of- fered the Union a wage proposal based on anything other than an incentive (or volume) pay rate. Therefore, after receiving the "Company's Final Offer," the union committee caucused and undertook to compute the offer proposed under option B for comparison purposes. The Union concluded that option B represented a decrease of wages under the contract then in effect of over 20 per- cent. Following review of the Company's proposal, Casey raised questions regarding the application and computa- tion of "legal overtime," whether the employees would be offered a guaranteed workweek, the number of hours that individuals would be required to work daily and/or weekly, the number of loads a driver would have to haul daily, and, perhaps most importantly, what geographic areas would constitute the routes which would be in effect under options A and B. The route issue was a substantial one. The Union's committee expressed a concern that based upon its expe- rience some of the existing routes were too long to be worked under Respondent's incentive proposal or to be completed within the 12-hour day proposed under option B. In addition, the Union's committee stated that based on its experience the incentive proposals projected more yardage per route than the amount that an employee would be able to complete during a 12-hour workday. Harper informed the Union that the routes would be re- structured but that the restructuring process would take 3 to 4 months. Harper told the employees that while route restructuring would be necessary in any event due to layoffs, BFI was planning to implement an active sales effort that, if successful, would result in the restructuring 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of routes over a shortened distance due to the increase in density of accounts. Because of the route uncertainty, Casey again asked BFI whether it would be willing to continue negotiations past the March 31 date if the parties were unsuccessful in reaching an agreement with so little time remaining for bargaining . According to Casey, Harper told the Union's committee that there was no way that negotiations would continue past the March 31 date . Casey testified that he told Harper that "the Union was put in the posi- tion that there was a number of unanswered questions and that we [the Union] were being rushed into this" (Tr. 372). At the Union committee's request, Casey visited with BFI's committee and made further efforts to get it to move from the bargaining positions stated in the "Com- pany's Final Offer" (options A and B). During this visit, Casey again asked BFI to consider offering -the residen- tial and commercial units the same offer that had been proposed for the landfill employees . Harper rejected this offer. Casey credibly testified that he then offered to freeze wages at their current levels for a 3-year period (covering the duration of the proposed 3-year contract), but that this- offer was rejected as well . Further, Casey restated the Union's offer to surrender some vacation and sick benefits, but these offers were rejected by Harper as well. Harper told Casey that he wanted the "Company's Final Offer" taken back to the rank and file for a vote. Because Harper insisted that the "Company's Final Offer" be submitted - to the rank and file for vote, Casey informed him that the committee would take the offer to the membership for a vote but that it would not recommend acceptance . Again, Casey. • asked Harper whether the committee would be allowed to continue ne- gotiations past March 31, in an effort to reach an agree- ment while the employees continued working under a contract extention. Casey testified that Harper responded that he had made it clear during the negotiations that there would be absolutely no extension of the existing contract because such would not be profitable for the Company, and that if the parties -did not reach agreement by the end of the day on March 31 , the bargaining unit employees would not be working. The bargaining unit members voted by secret ballot on BFI's contract proposal . The result of this balloting was 65 votes against and 3 votes for the commercial contract proposal, and 20 votes against and 0, votes for the resi- dential proposal. These results were immediately commu- nicated telephonically to Medrick by Casey. During this telephone ' conversation, Casey testified that he again asked Medrick to continue negotiations past the March 31 date and to permit the employees to continue working under a contract extension . Medrick's response to Casey was that he considered this a bad situation, but that the men had made their bed and now would have to sleep in it, and that there - was no way that negotiations 'would continue past the March 31 date. Thus, as the expiration of the existing contract ap;. proached, the parties were without a new contract. Even though they had agreed on the lesser issues, still unre- solved and dividing the parties conceptually , just as they had from the outset of negotiations 3 weeks earlier, were these issues: BFI's proposal to shift from the 4-day work- week to a 5-day workweek, BFI's proposal for an incen- tive pay rate (or a cut in the day rate), and the use of "legal overtime" to cut the overtime costs. The parties had negotiated on these issues extensively, but on March 31 the Union-concerned about keeping fobs-was firm in its position against the Company's proposal; and BFI-trying to lower its costs to be competitive with Chambers' wage scale-was firm in its position. From this, BFI urges that an impasse existed that enti- tled it unilaterally to implement a wage scale lower than the old contract rates, and that it bargained in good faith, albeit hard. - 1. "Good-faith" versus "hard bargaining" BFI contends that the record demonstrates that, this is a case of permissible "hard bargaining," whereas the General Counsel and Union urge that it establishes that BFI negotiated in bad_ faith without any sincere desire to reach an agreement. The applicable principles of law - governing• this dispute, while very difficult to apply, are well settled. Section 8(d) and Section 8(a)(5) of the Act require both the employer and the representative of the employ- ees "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and condi- tions of employment." This duty requires the parties to "approach the bargaining table with an open mind and purpose to reach an agreement consistent with the re- spective rights of the parties." L. L. Mature Transport Co. v. NLRB, 198 F.2d 735, 739 (5th Cir. 1952). As the court aptly said in NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th Cir. 1960): [O]ne must recognize as well that bad faith is pro- hibited though done with sophistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and - there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail: Hence, we have said in more colorful language it takes more than mere "surface bargaining," or "shadow boxing to a draw,"- or "giving the Union a runaround while purporting to be meeting with the Union for purpose of collective bargaining." It is, of course, also true that no party is required to make concessions, and that no one need yield any posi- tion that is fairly maintained. NLRB v. American National- Insurance Co., -343 U.S. 395 (1952); H. K. Porter,Co. v. - NLRB, 397 U.S. 99 (1970). But on the other hand the law is settled: [I]f the Board is not to be blinded by empty talk and by the • mere surface motions of collective bar- gaining, it, must take some cognizance of the reason- ableness of the positions taken 'by an employer in the course of bargaining negotiations. . . . Thus if. an employer can find nothing whatever' to agree to in ' an ordinary current-day contract submitted to him, or in some of the union's related minor re- quests, and if the employer makes not a single seri- BROWNING-FERRIS INDUSTRIES ous proposal meeting the union at least part way, then certainly the Board must be able to conclude that this is at least some evidence of bad faith, that is, of a desire not to reach an agreement with the union. In other words, while the Board cannot force an employer to make a "concession" on any specific issue or to adopt any particular position, the employer is obliged to make some reasonable effort in some direction to compose his differences with the union, if § 8(a)(5) is to be read as imposing any substantial obligation at all. [NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134-35 (1st Cir. 1953).] In NLRB v. Insurance Agents, 361 U.S. 477, 485, 486 (1960), the Supreme Court recognized that "[c]ollective bargaining . . . is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of `take it or leave it'; it pre- supposes a desire to reach ultimate agreement, to enter into a collective bargaining contract"; though "the par- ties need not contract on any specific terms . . . they are bound to deal with each other in a serious attempt to re- solve differences and reach a common ground." And, as the court observed in NLRB v. Generac Corp., 354 F 2d 625, 628 (7th Cir. 1965), "Good faith bargaining must be evinced by more than superficial efforts to negotiate a wage agreement. Good faith means sincerity, candor, and a willingness to negotiate toward the possibility of effecting compromises." Finally whether a respondent has bargained in good faith normally rests on "a finding of motive or state of mind which can only be inferred from circumstantial evidence." NLRB v. Reed & Prince Mfg. Co., supra, 205 F.2d at 139-140, and from "[t]he previous relations of the parties, antecedent events ex- plaining behavior at the bargaining table, and the course of negotiations [that] constitute the raw facts for reach- ing such a determination." Auto Workers Local 833 v. NLRB, 300 F.2d 699, 706 (D.C. Cir. 1962), quoting NLRB v. Truitt Mfg. Co., 351 U.S. 149, 155 (1956), con- curring opinion of Frankfurter, J. Guided by the foregoing principles I characterize BFI's course of conduct in the negotiations as "hard bar- gaining." For its part BFI negotiated with a sincere desire to reach an agreement that would allow it to regain its former share of the trash hauling market. And for its part, the Union negotiated with more concern for avoiding layoffs in the short run than with the Compa- ny's farther term goal of increasing its sales and market share. The result of their opposite poles was agreement on many of the conditions of employment. But on the terms-the wages and hours-there was an impasse, as we shall now see. BFI entered negotiations determined to leave negotia- tions with the ability to employ fewer drivers at lower rates of pay. In this it succeeded, for by the end of April it was operating with fewer drivers at a much lower pay scale. As early as December-January 1982-1983 BFI had informed the Union's stewards that the Company would be seeking concesions from the Union in the forthcoming bargaining. True to its word, it proposed and never re- treated from a pay scale that would have reduced wages from 10 to 20 percent, increased the workweek from 4 to 79 5 days, and resulted in the layoff of about six drivers. For its part, the Union, while modifying its wage de- mands, never retreated from a position that insisted on a 4-day week and some wage increase during the ensuing 3-year contract period. Typifying how both parties talked past each other on these "gut" issues is the question of overtime. Harper stated the Company's position that overtime was a major cost element that needed reduction. When Casey offered to forgo 5 hours of overtime, Harper demurred, citing to Casey legal proscriptions, but more importantly, eco- nomic ones. Harper stated to Casey that drivers' over- time work was uncontrollable by anybody other than the drivers, depending on how long it took them to complete their routes. Since many overtime hours were being logged, BFI felt it needed a plan that would offer a dis- incentive against working many overtime hours. Hence, the Company proposed its "incentive" plan, the "incen- tive" being to work faster on the route so that fewer overtime hours were accumulated The means of effecting this incentive were simple, not- withstanding Casey's testimony that the Union never un- derstood it.6 The method of computing the overtime as proposed by BFI was designed so that each hour of overtime that was worked was paid at a lower rate than the preceeding hour. This departed drastically from the tried and true "time and one-half for overtime," on which the Union insisted for the entirety of bargaining. The drivers never overcame the shock of learning that the longer they worked over 40 hours each week, the less they would get for each successive hour. It was in the main their reaction to the overtime proposal that caused the drivers overwhelmingly to defeat the Compa- ny's proposal each time it came to a vote. Moreover, the Union was not used to concession bargaining, and its ne- gotiators and the drivers could not fathom BFI's insist- ence that some layoffs, plus a 10- to 20-percent pay cut, plus a longer workweek would be necessary.? The General Counsel takes a view that BFI bargained with a view to getting rid of the Union. These factors are deemed to support this view: the attempt by BFI before negotiations to instigate a decertification move- ment among the employees; the delay in starting negotia- tions, the radical nature of the proposals; and the threats by Harper during negotiations not to negotiate past March 31, when the contract ended. a. The attempt to decertify the Union As I earlier found , BFI did try to encourage employee interest in decertifying the Union. There is no doubt that it felt that the Union was responsible for its higher, un- competitive costs and its concomitant slippage in its competition for lowest bidder contracts And indeed, one 6 What the drivers did not comprehend, as testified to by driver Wilcz- nysky was why the drivers, who constituted the largest group of employ- ees, had to bear the brunt of this incentive plan whereas the mechanics and landfill employees did not The answer from the Company's point of view was that the drivers' costs had been the least controllable and the largest factor in BFI's deteriorating competitive position 7 The longer workweek was a particularly odious turn of events, since the BFI management that preceded Medrick had been the instigators of the 4- rather than 5-day week 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can surmise that BFI knew that the Teamsters would strike before accepting a 10- to 20-percent wage cut, that replacements could be hired in the troubled Pittsburgh area for wages that were below .any union scale, and that in the end BFI either would be rid of the Union or be rid of its current contract The crucial question is for which did BFI strive? So far, the indicia relied on by the General Counsel show that BFI was motivated to and did attempt to displace the Union. However, the remain- ing factors do not show that BFI was bargaining in bad faith. b. The delay in starting negotiations By letter of February 1, 1983, the Union notified BFI that it was ready to begin negotiations. But BFI was not ready, or so it told Casey' when he was in touch' throughout February. And in fact, negotiations did, ' not begin until March 11, 1983, and did not begin in earnest until the second session, held March 22. With the con- tract but 9 days from expiring, there was not a lot of time for the Union to absorb the shock of the drastic concessions that BFI was asking. Yet there is no record indication of why negotiations were delayed and wheth- er BFI was in fact unready. While the General Counsel understandably weaves this delay into the greater fabric of BFI's alleged lack of good faith in bargaining, only speculation can lay the delay at BFI's door, and such speculation cannot suffice for the lack of evidence on the question. See NLRB v. Wright Motors, 603 F.2d 604 (7th Cir. 1979). c. The radical nature of the proposals and the. negotiators' threats The initial proposal made by BFI contained many de- partures-from the existing contract, most of which were negotiated about and settled . But the main issues re- mained at impasse. The Union at one point accepted the concept of a 5-day week if the individual employees had the option to bid on it or not. BFI rejected that offer, fearful that it left the possibility wide open' that 'nobody would bid for'5 days. BFI moved off its adamant posi-' tion on 5 days by offering to make 4-day weeks available to those employees who currently because 'of 'their se- niority were on the preferential list. The Union rejected this. The Union was stunned by BFI's insistence on its version of overtime rather than the time and one-half that it wanted to continue. The Union offered to lower the guaranteed hours from 45-40, but BFI 'rejected this as still entailing excessively - high 'costs 'if 'the Union's wage and overtime proposals were to be tied in. And on wages, whether proposed on a'volume' liasis or 'on a daily basis (which BFI did not do until the last se'ssion), the net result as far as the Union was concerned was a 20 percent wage cut. The Union offered to take the same type of contract as the landfill workers had been offered, which froze wages for the first year and had modest in- creases • in the second and third years, but Harper re- fused, his rationale stated as follows from his testimony explaining the basis for the ,Company's last offer (Tr. 582-583). _ We prepared our last, best, and final offer. And it was an alternative offer. I was not sure whether the objection was really to the incentive plan. I knew the four day work week was an issue that was pos- sibly incapable of resolution. I knew we were as far as we were going to go on that issue, and that was to allow the red circle preferential people to main- tain a four day work week, if they wanted. But oth- erwise, we were going to have a five day week op- eration. That was one of, our essentials going in, and it was still an essential If the employees were-didn't want an incentive pay plan for whatever reason, then we were looking at what could we do to con- tain our overtime cost, which is a varible over which we have very little control And how can we get down to a•competitive level with Chambers and our other competition. And so, we came up with taking the ten twenty-seven and the ten hour day that they were working and run- ning a-ten hours times ten twenty-seven is a hun- dred and two seventy-and we took a ten percent cut on that and came to ninety-two fifty. Now, mathematically, that correlated very well with what Chambers and Martin were' paying and what we understood our other non-union competi- tion was paying. Because they were on a basic eight hour day on a five day week, and eight times nine is seventy-two. And three hundred and `twenty a week by five days is somewhere around seventy dollars. So, the ninety-two fifty day rate put us in the ballpark with our competition. Thus, BFI consistently was offering to the Union a draconian package, one that' on its face the Company reasonably could be expected to know that the Union would reject. This, alone, has been held to indicate the lack of good' faith in bargaining.8 Knowing this and that the proposal needed a lot of explaining, BFI offered--to explain it to the members at the hall before they voted, but this was turned down by the Union. So, too, was the offer to bring down BFI unionized employees from Youngstown, where BFI (through Medrick, the former manager there) had instituted an incentive plan, 'for ex- planations on how it had worked. Thus, the Union's protestation that it was constantly confused by the de- tails, impact, and implementation of the incentive plan do not support its'allegation that BFI bargained in bad faith, since the Union rejected BFI's efforts at education. The only understandably confused area by March 31 was in the nature of the routes that would have to. be re- aligned, since BFI had admitted that it would take many weeks to design the new routes that BFI's planned sales effort and'the proposed incentive plan would produce. This is the nub of the issue, for with this admitted uncer- tainty,'BFI was still asking for a vote on March 31, and the Union was asking for more time to discuss and evalu- ate the Company's last offers. The General Consel argues that since the Union was denied its request for 8 NLRB v Wright Motors, supra, 603 F 2d at 609 BROWNING-FERRIS INDUSTRIES 81 more time to negotiate past March 31, that alone consti- tutes a breach of BFI's duty to bargain in good faith, and if that is what happened, then a finding of a violation clearly is warranted. But it did not happen that way, and I credit Harper's denial that he told Casey that BFI would not negotiate past March 31. What Harper did say was that the men would not be allowed to work past March 31 under the terms of the old contract, i.e., that there would be no ex- tension of the contract as repeatedly asked for by Casey. A close examination of the testimony shows this, as fol- lows. Casey's testimony on-direct examination: When we presented the Company with our second proposal that day [March 23] the Company stated that there was no way that they could work under these conditions because they were losing money, and they felt that if we didn't come up with some- thing by the end of the month that our people were going to be out on the streets; that there was no way that we were going to be allowed to negotiate past the March 31st date. [Tr. 333-334.] At that time [March 24] the committee stated . . . that the Union would accept . . . a one-year freeze and 35 cents for the second year and the 40 cents for the third year. And Mr. Harper said no to that and that if we didn't have-if we couldn't come up with a proposal by March 31st that our people, again would be out in the streets. Q. Was there any response to that by the Union? A. Well, the only response that the Union had was they again made the request that should we not come up with something by March 31st, would we be allowed to continue to negotiate past that date for a reasonable period of time. Q. Was there any response to that question? A. Mr. Harper stated that he felt that had [sic] made it clear that there were not going to be any extensions whatsoever. [Tr. 356-357.] And we still, again [on March 31] asked the Com- pany that should we not come up with an agree- ment by the 31st would we be allowed to continue to negotiate past that date. And again . . . Mr. Harper told the committee that there was no way that we were going to be allowed to continue past that date. [Tr. 370.] Q. Why were you holding this meeting, this Union meeting, [on March 31] with the member- ship? A. The Company asked for this, because they told us that if we didn't have a contract by March 31st our people wouldn't be allowed to work. [Tr. 375.] A. What were the employees told at the time that they were presented with this proposal for a vote? [March 31] A. Well, I told the members at that time that I had asked Mr. Harper could we continue to negoti- ate past the March 31st date should we not come up with an agreement and that Mr . Harper had told me there was no way and that if we didn't have the contract agreed upon by midnight on the 31st that no one was going to have a job. Q. And had you, in fact, been told that by Mr. Harper? A. Yes. [Tr. 378.] On cross-examination by Harper (Tr. 452-454), the pertinent colloquies went as follows: Q. We had several discussions during negotia- tions relating to the Union's desire to go beyond contract expiration in terms of maintaining the old agreement, is that accurate? A. Yes. Q. And did the company at any time say that it would refuse to negotiate, as distinct from refusing to extend the contract? A. Well, [on March 31] you stated to us that we would not be allowed to continue to work. Q. Had you ever heard that statement before? A. During negotiations, that question was asked ... three or four times. And we received the same answer each time. The company stated that an ex- tension would not benefit them in any type of manner, and that our people were not going to be allowed to work past the March 31 date. Q. Now, there was a telephone conversation on April 1, 1983 between yourself and me, was there not, Mr. Casey? A. Yes, there was. Q. And in that phone conversation, the Company told you that if the men wanted to return to work, they could do so? A. Yes, but you also stated that it would be under-it wouldn't be under the terms of the old contract. Q. You were also told that the company had not yet decided which portions of its final offer it was going to implement? A. Yes. Q. And during that same phone conversation, the company agreed that it would meet and continue to negotiate with your union if you requested it. A. What I recall from the conversation is the union made a request, could we continue to negoti- ate. And you told me at that time that we could continue to negotiate but we could talk about the weather, we could talk about women, but you weren't going to change your position in any way. Q. And that unless you had some proposal to make to meet the areas which the company had ne- gotiated on to that point, five-day week, change in method of pay, we would be spinning our wheels? A. That's correct. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, on redirect examination (Tr. 488) Casey testified as follows: Q. Was there any mention of what would happen if a contract was not reached by the expiration of the existing contract? A. Yes, again Mr. Harper had stated to myself when the local union's negotiations had broken off, they asked me to go into the room with the compa- ny and make the proposal again. I made the propos- al to the company to ask them if we would be al- lowed to continue to work past the March 31 date. Mr. Harper again told me there was no way we were going to be allowed to work past the March 31 date. It would be too costly to the company. And we had better let our people know that if we didn't have a contract by March 31, we would not be working. BFI's counsel Harper took the stand, and like Casey testified at length about the negotiations. He corroborat- ed Casey's account of the April 1 phone call between them in which he again told Casey that BFI would not extend the contract since it was the contract that made BFI noncompetitive, and that he agreed to meet again with Casey if it did not amount to "spinning our wheels. I mean, if you want to meet . . . I'll meet. We can talk about the weather, or we can talk about girls, whatever you want to, but unless you've got something that re- sponds to the essentials, that the Company had when we started these negotiations, and that we had when you put your people on strike, I don't see much point in meeting about it. We need to resolve these issues. There has got to be a five-day week. There had got to be a change in the method of pay. And there's got to be legal overtime. Now . . . whenever you want to meet, you call me. You've got my office number He said: Okay." (Tr. 596- 597.) Harper denied that he told the negotiators that the men would be in the streets or that there would be no work if by March 31 there was no new contract. And he testified that in the April 1 phone call with Casey, he told Casey to let them work, although emphasizing that it would not be under the terms of the old contract. So we have Casey saying he heard "out on the street" and "no work," and Harper saying he did not say it, in fact that he "knew better" than to say it. Here the "de- meanor evidence" is critical, and I observed both wit- nesses closely . Harper is intense, capable of holding things in in the courtroom, but less likely to do so in the bargaining room. He was impatient with Casey as an in- experienced negotiator, preferring wherever possible to deal with Peluso, who was on loan from the Teamsters' Eastern Conference to help Casey in this his first negoti- ation. I find it entirely likely that when taxed, Harper ex- ploded with the statements attributed to him by Casey, and the violent storm having passed, returned to a cooler mien. For his part, low key Casey struck me as being over- whelmed by Harper's more insistent bearing, and "heard" more than Harper uttered. The one thing Casey seems to have wanted most met head on with what Harper wanted least-an extension of work under the old contract while negotiations continued . Thus, when Casey heard "no negotiations after March 31" he screened out the context of the remarks, i.e., that in re- sponse to the Union 's request, BFI said "no" to allowing the drivers to work under the old contract while negoti- ations continued on past March 31. As for the men being "in the streets" after March 31, Harper knew that with no new contract , and no exten- sion of the old one, the Union would be striking as of midnight (which it did). Indeed the "in the streets " excit- ed utterance let the cat out of the bag, for it shows that BFI knew that by its holding fast a strike would ensue that would allow the Company to hire new drivers at a lower scale. Which is why it is not surprising that early on March 31 supervisory personnel from other BFI loca- tions were arriving in Pittsburgh to be used in BFI's op- eration there during a strike . While this was a prudent business move in anticipation of a strike , I do not believe that BFI was surprised that the strike occurred-its hard bargaining had ensured that it would. BFI's willingness to incur a strike certainly stiffened its resolve to bargain hard for a viable contract, and while its bargaining would not be called "good faith " by laypersons, in the argot of Sections 8(a)(5) and 8(d) it cannot be said that BFI "went through the motions of negotiations as an elaborate pretense with no sincere desire to reach agree- ment." NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir. 1953). The Union having legitimately held fast to its position not to lengthen the workweek or allow a cut in pay in the face of the Company's deterio- rating competitive position, by so doing and by striking paved the way for BFI to hire permanent replacements at the lower wage scale that had been proposed by BFI. In this, it was outmaneuvered. Compare NLRB v. Tomco Communications, 567 F.2d 871 (9th Cir. 1978). For the Board to rescue the Union in these circumstances would place the Board in the prohibited zone of interference with the collective -bargaining process. NLRB v. Insur- ance Agents, 361 U.S. 477 (1960). 2. The hiring of permanent replacements It follows then , that BFI was within its rights in hiring permanent replacements for its economic strikers, and after the Union's April 28, 1983 unconditional offer to return to work, of establishing a preferential roster of striking employees (other than those guilty of criminal misconduct for acts committed during the strike) who would be called back as vacancies occurred in the ranks of the newly hired permanent replacements .9 And Re- spondent was within its rights on April 4 , 1983, in hiring the replacement employees on terms and conditions of its previous offer, since there was a valid impasse on March 31, the old contract had expired , and BFI's bargaining conduct did not invalidate the impasse . Accordingly, I dismiss the complaint with regard to these allegations. 9 Up until April 28, 1983 , BFI hired 88 employees as replacements Of these, 32 were terminated from April 9 to September 9, 1982 (G C Exh 32) From April 20 to September 27, 1983, BFI recalled only 15 striking employees There is no evidence in the record bearing on whether Re- spondent has been remiss in failing to recall striking drivers to fill the re- maining vacancies BROWNING-FERRIS INDUSTRIES CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.io 2. The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All residential drivers, helpers, commercial collec- tion drivers, and landfill employees, including oper- ators, mechanics, and utility men, employed by Re- spondent at its Carnegie, Pennsylvania, facility; ex- cluding office clerical employees, guards, profes- sional employees, and supervisors as defined in the Act, and all other employees. 4. The Union has been the collective-bargaining repre- sentative for the above-described employees at all times material to this proceeding within the meaning of Sec- tion 9(a) of the Act. 5. Respondent has violated Section 8(a)(1) of the Act by soliciting employees to decertify the Union, creating an impression among employees that their support for the Union was futile, and interrogating employees about their union sympathies, all of which constitute unfair labor practices that affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edit ORDER The Respondent, Browning-Ferris Industries of Penn- sylvania, Inc., Carnegie, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from engaging in the conduct stated in paragraph 5 of the Conclusions of Law, supra, 10 Respondent is a Delaware corporation with an office and place of business in Carnegie, Pennsylvania, for the hauling of refuse During the past year Respondent purchased and received at its Carnegie facility goods and materials valued over $50,000 from points outside the Com- monwealth of Pennsylvania i i 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 83 and from in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Post at its Carnegie, Pennsylvania facility copies of the attached notice marked "Appendix."12 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. IT IS FURTHER RECOMMENDED that the General Coun- sel's motion to correct the transcript is granted. IT IS ALSO FURTHER RECOMMENDED that to the extent not granted herein, the requests made in the complaint are dismissed. 12 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 " 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. WE WILL NOT interrogate employees regarding their union sympathies. WE WILL NOT give the impression that employees' support of their union is futile. WE WILL NOT solicit employees to cause the Union to be decertified as their collective-bargaining representa- tive. BROWNING-FERRIS INDUSTRIES OF PEN- NYSLVANIA, INC.