Deister Concentrator Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARO Deister Concentrator Company, Inc. and Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO and International Union of Electrical, Radio and Machine Workers, Iocal 998, AFL-CIO. Cases 25-CA-8803, 25-CA- 10026, and 25-CA-9580 November 19, 1980 BY CHAIRMAN FANNING AND MEMBERS JE.NKINS AND PENELI.O DECISION AND ORDER On December 26, 1979, Administrative Law Judge Thomas R. Wilks issued the attached Deci- sion in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and support- ing briefs, and Respondent filed an answering brief to the General Counsel's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law i Resptonidet Iand culnsel for te (icencral CounTerlse haxc c e Ipt d ti certalin credibility finlditngs made hy the Adlliistrativc I.a Judge It is the Hioard's established pli iil lot to overrule a admilllstrativc lti judg's resliutiotlls t ith respect t credibility unless the clear preplotidcr ante of all of the relevanl evidence convd e inces us that tile resoluitions are incllrrect. Stlandrd )rv I'al// Protducr. Inc.. 1I NI.Rl 544 (1'50). citfd 188 1 2d 362 (3d1 (C' 1951) We have carefullt; examined the record and fitnd nto basis fir ren ersing his findillgs In the seltion i if hits )ecision entitled "Request filr Resumptiton of Ilar- gainlig'" the Adminlstratice Ilai Judge inadvertently referred to the last meeting between Rspnildtllt and the Union as the May (l rIleeting Hlowever, as he finds el scwhere i his D)ecisitln, the record idicates th lat the last meeting btleenl Ihl prties tooik place )nt NoicIther 17 II the section of his Deciioln elltitled "Analysis f t')Ist-Seltlcnlet 8(a)(5) Violations" the Adniiutsraltive Law Judge referred tot the riotice Respnmdent posted iplying thit the extra hiolidays had been ,lst because iof Respondenlt's bargaiing piglion He fiund this hnot to be the case. "inasmuch its ino agrcemtlent had as yet been reached with tilt Uln il and thereirte n impasse existed" (Emphasis supplied.) We wiould strike the wotrd "therefore" Lack of a agreemelit des itot niecessarily lIcad teo conclusion that nol imnpasse existed We agree with the Adilinistratie Lai Judge's findinlg that employee MatSot vwas % rot a sipervisr. hut ic d not rely upron his cmnlellnts Io the effect that, eel if Maton l were a supervisor, he .'as at a nery tine level and was nly expressing his own topinion as to the dlsilrabil l o bringing back the shoip committee In finding that Respotdent viotlated Sec 8(a)(3}1 f tihe Act b i fail- ure to granllt a bonus to its unlrecalled economic strikers o11 Jalnuar 13I 1978, Memhber P'ccilo does not rely on Borden, Inc. Borden ('heiui I)D- tviion, 235 NlRH 982 (1978), enforcement denied ad rmanded ill perti- nent part 6(]X) F 2d 311 (lt . 1979) a case wherein he disseilled Member l'enello agrees ith his colleagues that Respoiidetil villated Sec. 8(a)(l) f the Act bhy issuing a written reprimand Io ernploec Charles Schnobicl after he complained to Plant Manager DI)onald I)alis and Supervisor Joe Andersonl ahout he and his coworkers being required to work alongside an enlployee afflicted with either hepalilt or venereal disease Mernhber Penellio does rot, htowever, rely oit .4Arot General lr Mctld,- cal (enter, 232 NlIRB 920, 927 (1977), cited by the Adnmilstrai,!e aw Judge. tiI the extent that Akrton General relies tin Al'lula (uhion (, Inc., 221 NI RB 999 (19751 Member Pciclti finds that Repolndenlt ito- 253 NLRB No. 40 Judge, as modified herein, and to adopt his recom- mended Order.2 1. We agree with the Administrative Law Judge's conclusion that Respondent violated Sec- tion 8(a)(5) of the Act by entering into post-settle- ment negotiations on November 2 and November 17. 1977, with a fixed intent to avoid agreement. In so finding, however, we do not rely upon Re- spondent's initial opposition, promptly withdrawn, to the Union's having an unrecalled striker as one of its bargaining representatives at grievance meet- ings. Although the Administrative Law Judge did not. in his summary of factors indicating Respondent's bad-faith bargaining at the November meetings, specifically include Respondent's November 17 offer of a 3-1/2-month contract, we find this pro- posal another indication of Respondent's fixed intent to avoid reaching an agreement at that time. The Administrative Law Judge's discussion of the problem reflects the view that the short term dura- tion clause was an indication of bad faith although other "substantive" proposals at the two post-set- tlement meetings did not constitute bad-faith bar- gaining. That the Union would be justifiably alarmed at the sudden shift from contract proposals covering a 3-year period to one for a 3-1/2-month period is patent. he explanations offered by Re- spondent, that a coal strike was expected in Febru- ary and that March 1 was the "historic" date of past contract expirations. do not persuade us that Ilted See 8(ai)(1) hrciln based oll the record e\Ldllent sho,. lig that Schnotihel lII spoken Aithl Ills cl\,krs ithoult Iti afflhcctd cnIlphlycct' presence ait the lrkpacc.e prllt to pproac hiig ldIIItageIheitt. Ild Ilhal Schlhcel apprised Rcspond it II II lic 1t llth haliad hlic eI(d tIo all o1 Responidenl's criplloy cc I l addti . ll. record tte- t hait Rsponild- ciii kN of Schllhl' c-n critnltln tilih his co,, rker clncrlerlllng thi hlallth lhazard. silec Schottb'l' i, rlitil Tcprilmald at reference i, "Lauslinggl urest arlltig the CoIIIpanl.l ri[lpIeCes" 1 t rpe l tl thil slatltc We agree nilh tie Admllliitraliln I s Jdge' rl nlllendatioll that Respondent he tirdered to bargailln il tle I ilion I'l a 2-ninth period. leIc the initial nllth (plnt citllncnilenl dJiiiieg ,shlc the TlniirTi made IIn specific request for hairgaiilnig l)uring ith. iit plrod ot illollihs i, qtietiol clltcernliig the tnionall M.llwrtI i ttfI lS Catni ti C i alld IbtI1is itlicL ciOll c Uote that ReplideCt oblihgalon dlei cx frol t settle- mrlet aigreenrelt wheril1 ii greed lt hbargill purlarilt t,) lthe lard's well-established rule set orth l fa l u-Jut 'ouri (r oipanr Ini. I 6 NI RBH 785 787 liht2) tI the effect that a nltiol in entitled to -a period lf at least I ear of actual hargainllilg fromli 11 dalle of th- CtlIITltilti agreement C ntr:ar) Io tile Adtnlilllnratine .as Judge ill Ill dinc.'uoil of his issue. e sal bargaining lperind does it dierise t fro t coOl- plaint av irlg alleged a ctusal to bh.rgatill Or rlr ahboul te dalte of certlfi- caltllo par i iularly II i a cae i lc h is 1 1i i lere tlie Atdrnir lllslr.tlnc I.a Judge has founrd that Rcponldelt ha engagcd Il "hard" hut good-lfailth hargallliig ill the prenttlnlent period S also ilutrun le/tter (C(rpora- in, 2tl Nl.RBI 114. 115 (1 I771. htr te settlmeunt agrecnielt as a pri iltCe onl mad h i tie part ies, ratlier Ihan I ard- ptnl orcd . and as ciIstrue h the Itoard a; extentding the certificatioin ear ad givilng the parties at least t11 oiths ili ichli to bargaill Sete alsi (itir t'/laites. Int., 234 NR B I ()11 f 4 (1'78). hrhert Ihi Balrdl approned tIhe reimedL iof a Adtltillnlr;lale I.aw Judge that gasle a full near of bargain- llg ii1 circuimstalltcc whtte the repontildetli had bargalilct In hal aid llh ,,old: dutrinig the lalt 2 I/2 riloiths it te origilial crtifltla till) s.ar 35X DEISTER C()NCENTRATOR COMPANY Respondent was acting in good faith in the circum- stances of this case. 2. The General Counsel contends that the Ad- ministrative Law Judge erred in reinstating the set- tlement agreement pertaining to the complaint in Case 25-CA-X8803 in light of Respondent's subse- quent unfair labor practices. The Regional Director approved the agreement on August 5, 1977, but va- cated and set it aside approximately 7 months later on March 13, 1978, reinstating the complaint and consolidating it with that in Case 25-CA-9580, be- cause of Respondent's alleged refusal to bargain in November 1977 and other subsequent conduct al- leged as violations of Section 8(a)(1) and (3) of the Act. The Administrative Law Judge recommended that the settlement agreement be reinstated even though he found Respondent bargained in bad faith at the November meetings and committed certain post-settlement unfair labor practices. We agree with the Administrative Law Judge's recommenda- tion and his reasons therefor. However, the only authority he cited in support of his recommenda- tion was Utrad Corporation,: a case not directly on point, as there the post-settlement violations oc- curred 5 years later. In deciding whether or not to give effect to or rescind settlement agreements, the Board has long held the issue "cannot be determined by a mechani- cal application of rigid a priori rules but must be determined by the exercise of a sound judgment based upon all the circumstances of each case." The Ohio Calcium Company.4 In this case the pre- settlement conduct consisted of massive 8(a)(l) and (3) allegations connected with the Union's organiz- ing campaign and interference with employee rights to engage in union activities, including dis- criminatory layoffs and terminations. The Adminis- trative Law Judge viewed the 8(a)(5) activity earli- er alleged as simply hard bargaining rather than surface bargaining or bargaining with a fixed intent not to reach agreement such as the post-settlement 8(a)(5) activity. Thus, the subsequent violations found by the Administrative Law Judge vary con- siderably from those alleged to have occurred prior to the agreement, and, as he found, were "tangen- tial to the real issue in this case, i.e., the bad-faith bargaining." In addition to posting the usual notice,5 Re- spondent took various actions to comply with the :' 185 NLRB 434 (1970) ' 34 NI.RB 917, 935 (1941). Rathbun M.olding Corporation 76 NL.RI 1019, 1030 (1948) See also Superior lxl & D)i (., 132 NRBH 1373, 1397 (1961) Ts he General Counsel alslO urge, that the settlement agreement he set aside because Respondent po,sed. next to the Board's notice selling forth the terms of the settlement agreement. tih flloswing notice In agreeing to the settlement we specifically deny hasing committed any unfair labor practice, and here was no finding on the part of the settlement agreement, including: paying more than $25,000 in backpay to alleged discriminatees, making employees whole for 6-1/2 hours of holi- day pay, offering five strikers who had not been re- instated immediate and full reinstatement to their former jobs, placing other employees on a prefer- ential hiring list to be offered the first available po- sitions for which they were qualified, offering four employees immediate and full reinstatement to their jobs, and placing six strikers on a preferential hiring list subject to Respondent's right to deny their reinstatement if it were subsequently ascer- tained that they had engaged in serious picket line misconduct. Also, Respondent recalled, according to seniority, all those on the preferential hiring list who had not quit, with the exception of two em- ployees whom it deemed (and whom the Adminis- trative Law Judge later found) guilty of serious strike misconduct. Respondent also reinstated the nine employees it had agreed to reinstate immedi- ately. In view of Respondent's substantial compli- ance with the settlement agreement and the essen- tially unrelated nature of the post-settlement viola- tions, we agree with the Administrative Law Judge that it is unnecessary to rescind the settlement agreement in order to effectuate the policies of the Act. Accordingly, we adopt his recommendation that the agreement be reinstated. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Deister Con- centrator Company, Inc., Fort Wayne, Indiana, its National I.abor Relations Board hat we have ever comnmittd unfair labor practices The purpose of this settlement w as simply to save the Compans time and money It would have cost us a great deal more n atorne's fees and loss of productivity for witnesses' time than it would cost to accept the settlement terms offered by the National Labor Relations Board The Board has found such notices sufficiently offensive to set aside settle- ment agreements because they tend "to minimize the effect of the Board's notice [and uggestl to employees that the Board's notice is being posted as a mere formality and that Respondent's true sentiments are li be fund in its own notice, not the Borard's" Bngor Plastic. Inc. ISh NlRB 1165, 1 167 (1966); Bingham-Uilliamnette CnrpUny, a Dlision ol' Guy F 4iAkinson Company, 199 NlRB 1280 (1972) Such action h a charged party defeats the very purpose of the Board's notice ie , "to assure employees that their statutory rights shall be respected " Blngham- Wil/iamete Co.. supra at 1281 Charged parties. accordingly, risk has irg a seltlement agreement set aside if they post their owkn ominllrelits alongdcl an official oard notice HoiweCer. unlike the situatilon in Blanior Plasti. Inc. uprua, and hingham-Wiillianette Co, vprua, where tile psting If the notice was the onlyI affirmali sactron the respondelnt was required to take. Respondernt here has aken significant renmedial actirlis iii colipliaicL ith hec telte- menl agreement. hus illustrating in a nmalnnrr meaningful o cilpl chs that it is abiding hy the settlement agreement 359 I)ECISIONS OF NATIONAL. LABOR RELATIONS BOARD officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge.6 'c h\ave mo lifitcd h Ad nlllsliItralivc aI Judge', rilliCC II crlitorm to his rcornmendcd ()rder APPENDIX NoTItc!E To EMPLOYEES POSTED BY ORDER OF THE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an op- portunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT threaten employees with loss of employment or other reprisals in the event that they associate with union advocates, or otherwise discourage their union membership and union activities. WE WILL NOT reprimand employees because they have engaged in concerted activities con- cerning wages, hours, or other terms and con- ditions of employment, or matters concerning their mutual aid and protection, as protected by the Act. WE WILL NOT discriminate against employ- ees by refusing to pay them their share of the annual bonus, or in any other manner, because they have engaged in union or other activities protected by the Act. WE WIl.L NOT refuse to bargain in good faith with International Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Local 998, including bargaining about changing wages, hours of employment, bene- fits, and vacation pay. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WI.l. rescind the reprimand issued to Charles Schnobel on or about April 18, 1978, and expunge all references to said reprimand from our personnel files and other records. WE WIti. make whole all former striking employees who were not actively employed in January 1978, but whose names appeared upon the preferential rehire list, for any loss of moneys they may have suffered because of our discriminatory failure to pay them their share of the annual bonus apportionable to the work performed by them in the year 1977, with in- terest. WE WI.I L make whole all employees for the loss of any moneys suffered by them because of the change in the method of computing va- cation pay in or about May 1978, which was done unilaterally and without bargaining with the Union, with interest. WE WIL., upon request, bargain with Inter- national Union of Electrical, Radio and Ma- chine Workers, AFL-CIO, and its Local 998, as the exclusive collective-bargaining repre- sentative of the employees in the appropriate bargaining unit with respect to wages, hours of employment, benefits, and other terms and conditions of employment for at least 9 months from the date we resume bargaining with said Union, and embody any understanding reached in a signed, written agreement. The appropriate unit is: All production and maintenance employ- ees, including regular part-time employees, of the Deister Concentrator Company, Inc., employed at its Fort Wayne, Indiana, plant, exclusive of all office clerical employees, laboratory employees, technical employees, salesmen, professional employees, manageri- al employees, and guards and supervisors as defined in the Act. DEISTER CONCENTRATOR COMPANY, INC. DECISION S-TTM.NI' 01 THIE CASE THOMAS R. WII.Ks, Administrative Law Judge: Pursu- ant to unfair labor practice charges filed by International Union of Electrical, Radio and Machine Workers, AFL- CIO, and International Union of Electrical, Radio and Machine Workers, Local 998, AFL-CIO (herein called the Union), and a consolidated amended complaint which issued by the Regional Director for Region 25, 36) DF'ISTFIR CONCENTRATOR COMP'ANY3 and an answer filed by Deister Concentrator Compay, Inc. (herein called the Respondent or Company), a hear- ing was held in this matter in Ft. Wayrne, Indiana, which commenced on September 18. 1978, and which w\as held on various dates thereafter. The hearing was closed pur- suant to my order issued on March 30(), 1979. The first complaint which issued in Case 25-CA-8803 alleged nu- merous violations of Section 8(a)(I) of the Act consisting of interference with employees' rights, and violations of Section 8(a)(3) of the Act by discrimination against em- ployees because of their union activities in the form of individual and mass layoffs of employees. Those viola- tions occurred within the context of an organizing camrn- paign by the Union. That complaint also alleged bad- faith bargaining by the Respondent following the Union's certification of exclusive bargaining represenltative of the Respondent's production and maintenance employees. On August 5, 1977. the Regional Director approcd a settlement agreement purportedly disposing of the issues raised in complaint in Case 25-CA-8803. On or about March 13, 1978. the Regional Director vacated and set aside the settlement agreement. On March 13, 1978. the Regional Director issued an order consolidating cases, and consolidated complaint and notice of hearing in Cases 25-CA-8803 and 25-CA 9580, wherein the allegations of the prior complaint in Case 25-CA-8803 were reinstated and wherein the Re- spondent was accused of engaging in postsettlement vio- lations of Section 8(a)(l), (2) (3). and (5) of the Act. Es- sentially, the second complaint alleges that the Respond- ent bargained in bad faith with the Union. instigated and encouraged an effort by employees to decertify the Union and to seek representation by the Deister Concen- trator Company. Inc., employees' shop committee,' as well as additional violations of Section 8(a)(1) and (3) of the Act. On August 22, 1978, the Regional Director issued a complaint and notice of hearing in Case 25-CA-10026 which alleged, inter alia, violations of Section 8(a)(5) of the Act in the nature of a unilateral change in working conditions made by the Respondent in breach of its bar- gaining obligations. The complaints were further amended shortly before and during the course of the hearing. Briefs were submitted by the counsel for the General Counsel and the Respondent on or about September 5, 1979. On the entire record in this case, including my obser- vation of the witnesses, their demeanor, and in considera- tion of briefs, I make the following: 2 m The entity which had particpated in the ttoard-clIoducted elecioii which led to the certification of the Ulnion 2 The findings of fact herein are based o(n the credibility resolutions resulting from my evaluation of the demeanor of all the Aitnesses which included all factors such as the w.itne.ses' ability to recall cclts ith certitude and to te ify with responsi ciessl alld lack if apparent r fi r tal- Ity and to testify with a candor i a c nnlsviing arid coherent mianll.er The entire testimny of all witnesses , a cnsidered ill light f conitn- cy and inherent probhahility Due consideratirn wilas gl en to tIh effect of the lapse of time from the occurrence of the events to the time iof the testimony given hby the itnesses as well ai t the natural teulsions tis- played hby witnesses due to their unfamiliarit to the courtroom setling FINDIN(s o- F( r I. IHI. BUt;SINISS Ot- IH l RSPONI) INT The Respondent is and has been at all times material herein, a corporation duly organized under, and existing by virtue of the laws of the State of Delaware. and has maintained its principal office and place of business at Wilmington. Delaware, and at a mining machinery and equipment manufacturing plant located in Ft. Wayne, In- dianla, and has been at all times material herein engaged at said plant and location in the manufacture, sale, and distribution of mining machinery and equipment and re- lated products. The vast preponderance of the Respond- ent's products are related directly to the manufacturing anid maintenance of equipment necessary for the prepara- tion and cleaning of coal. During the calendar year preceding the issuance of the complaints, which is a representative period. the Re- spondernt in the course and conduct of its business oper- ations purchased, transferred, and delivered to its Ft. Wayne plant, goods and materials valued in excess of 50(),(XX) hich were transported to said plant directly from States other than the State of Indiana. During the same period of time the Respondent in the course and conduct of its business operations mantcactured, sold, and distributed at said plant, products valued in excess of $50,000 which were shipped from said facility directly to States other than the State of Indiana. It is admitted and I find that the Respondent has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. IlHE I ABOR OR(6ANIZAINON It is admitted and I find that International Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Local 998 are labor organizations within the meaning of Section 2(5) of the Act. I11. IHI: UNI-AIR ABOR 'PRACICILS The Respondent has operated the Ft. Wayne, Indiana, plant for more than 20 years. In 1970 the business of the Respondent was acquired by International Metals and Machines, which entity controls the operations of several enterprises in various States of the United States. In the course of its operations, i.e., the production of machinery which is used for the cleaning and processing of coal, the Respondent operates a plant at Ft. Wayne, which in- cludes a structural steel shop. a machine shop, a carpen- ter shop, and a maintenance department. The overall su- pervision of the production and maintenance operations at all times material was the responsibility of Production Superintendent Donald Davis. In each of the four de- partments the Respondent employed as working foremen the following individuals: Joseph Anderson, Karl Huff. Robert Wafer, and Guy Matson. The supervisory status of these individuals is denied by the Respondent. Superi- or to Davis is Carlos Tiernon, the president, and Ronald Pufahl. the vice president-secretary-treasurer. The Re- spondent during negotiations with the Union was repre- senited by Plufahl and by Attorney Warren Furst. 361 I)l CISI()NS ()F NAII()NAI. L.AI()R RELI ATI()NS Hi()ARi) For many years the Respondent has recognlized the Deister Concentrator Company. Inc.. employees' shop comii1ittee as the collective-hargaining representati e for its production and maintenance enlployees and has mail- tained a series of written agreements purportedly cover- ing terms and conditions of employment. The Union began its organizational efforts among em- ployees of the Respondent in the fall of 1976. On Sep- tember 24, 1976. a group of employees manifested to the Respondent their desire for union representation and dis- closed their efforts on behalf of organizing a union. During the union organizing campaign the Respondent strenuously resisted the efforts of the Union, and various of its acts and conduct were alleged to have constituted violations of Section X(a)( I) and (3) of the Act in the first complaint which issued in this matter. During the orga- nizing effort a petition was filed by the Union which led to a representation hearing on October 22, 1976. and a Board-conducted election was held on or about Decem- ber 16, 1976, among the production and maintenance em- ployees at the Ft. Wayne plant, during which election the employees were afforded the opportunity of choos- irig representation for purposes of collective bargaining by either the Union or the Deister Concentrator Compa- ny, Inc., employees' shop committee. The employees designated the Union as their bargaining representative hy a vote o 21-to-14. On or about December 28, the Re- gional Director certified the Union as the exclusive bar- gaining representative of the Respondent's production and maintenance employees. The Respondent contends that the settlement agree- merit in Case 25-CA-8XX03 fully remedied the violations of Section 8(a)(1), (3). and (5), alleged therein, and that its postsettlemeint conduct was inot violative of the Act and therefore the Regional Director erroneously rescind- ed the settlement agreement. The complaint, which sub- sequently issued, alleged violations of Section 8(a)(5). inter alia, in that the Respondent purportedly entered ne- gotiations with a fixed intent not to reach an agreement and bargained in bad faith with respect to the issue of union security. However, whether or riot the Regional Director was correct in rescinding the settlement agree- mert, it is necessary for me to evaluate the Respondent's conduct in collective bargaining prior to the settlement agreement in order that I can properly evaluate the alle- gations of surface bargaining which was raised in the subsequent complaint and which occurred after the set- tlement agreement. Vorthern California District Council oJf Hodcurriers and Common Laborers of America, AIL-CIO. Construction and General Laborers Union Local VNo. 185, AF'L-CIO (Joseph PMohamed, Sr.. an Individual. d/b/a Jo- seph'i Landscaping Service, 154 NLRB 1384 (1965), 389 F.2d 721 (9th Cir. 1968). Moreover, an initial, overall in depth evaluation of the bargaining history between the Union and the Respondent is the most efficacious manner of resolving the many related issues in this case. Accordingly, our examination of the facts in this case will center about these negotiations. 13. Collective-Barguting .Negotiationv and Related I. P'reiegotiation events ()n December 31. 1976, New Year's Eve. the Re- spondenit failed to provide its employees ith either a uvhole or a half a day holiday. The Respondent' s agree- menit with the Deistcr Colcentrator Conipany, Inc., ei- ployes' shop committee i prior years had provided seven holidays" No explicit reference as made to a holiday either on Christmas Eve or New Year's E e. The grai.ling of a holiday of ither a whole day or a half a day on Christmas Eve arind New Year's I1:e was invari- ably granted to employces bh the Respondent's board of directors on a discretionary basis i past years. It was a rare occasion for such holida)s not to have been granted. As testified to by V ice President Ronald ufahl, some anioiunt of time had al, ays heen gisven in the past. No cogent basis was advanced by the Respondent as to why New Year's Ive v as niot granted at the end ot 1976 Cleariv t he newly certified urion was rlOt consulted nor notified wilh respect to te failure to grant any time off on New Year's Eve 1976. In January 1977. Internatioinal Represenati e Ted Nolan, by letter, requested certain data from the Re- spondeit. ()n January 24, 1977, Pufahl, by letter, for- warded a response containing the data relevant to names anid seniority dates, status. elrplonilct location, wage rates, Iiistory of kage increiases, joh classification, and gross earnings for erlployees, ari abstract of the benefits historically pros, idedl to erIplC ee uLider the existing lue Cross-liluc Shieldt group employee medical policy and under the dental plan, arid the life aid disability in- surance plan as prexiousl? provided to employees, a de- scription of the fringic henletils provided. hich included, therein, i description of the variable annual shop bonus paid in January based partially on longe ity aid partially on subjective management criteria." Also referred to in the letter was mention of funeral pas, a profit-sharing plan, jury duty pay, military leave program. and other data. Subsequently at points during the negotiations, a copy of the profit-sharinig plan and more detailed infor- mation under the medical health insurance program was provided. The delay was nriot due to the fault of the Re- spondent, but was in part due to a review of both pro- grams including a review of the pension plan as to its conformance with requirements under recent Federal legislation. No contention is made by the General Court- sel that the Respondent failed to respond timely to re- quests for information by the Union at any point in nego- tiations. Numerous requests were made throughout the course of negotiations for data hichi was subsequently timely provided. :' Ihe Regional )ircOiltr Itnd hal the rest reccill agreement did not c(11ntitute a "clllrlact har" to he cle(tiCoo 3h2 1)1 IS I IR C()NtINIRA I )R C() IPANY 2. 1 he rle otti;lll s a. 1/c first mucelm/g-I'Chrujr I Through mutual agreemenl the irst ncgottiatioln session between the parties as held o Fehruar 1 )77. hcr is no evidence or allegationi that the Respondent i an way sought to delay this first meeting. he meeting ;1s attenided h Nolan, tile chief negotiator foi tIhe Union, and employee bargaining committee menmbers: Thomras Nev housce Jeff Thom;las, Waldrep ad kMosshailer Rep- resenting the Fnployer ere its chief negoliator, Allor- ney Warren Furst Pufahl, arid Plant Superintendent Donald Davis. The composition of the negoliating Icanis remained virtually the samle throughout negotiations At a subsequent point ill negotiations Federal mediator. Ted Kiefel. joined the parties The firt meeting '.'as held on the Emploer's premises and commenced ahout 5:15 pl. Furst indicated that he would like to adjourn the nimeecct- ing early that evening. Nolan testified that he ,,,as agree- able to adjourning the meeting e;arly that e ening bh- cause he needed inme to digest the information that had been pre iously uhrbmitlted by the Respondent to the Union. In light of Furst's undispnutedly heavv business schedule. which included sex eral other negotiations itht other plants including those of the conglomierate to which the Respondent belonged. i.e., the so-called "Car- roll" group, Furst suggested that bargaining take place on a weekly basis on ex er -'Tuesday Nolan conceded in his testirmlony that he did inot object to weekls meetlings in the early sages of tile negotiations because e needed the time to ev aluate data submitted to hinm hb the Re- spondent to firmulate his proposal. Hovwever, Nolan tes- tified that he indicated to urst that as negoiatiatois pro- gressed the parties ought to meet more frequently, but Furst, however. respond(led that his time would permit him only to he available on each Tuesday. hus, the early stages of negotiations started off oIn a eekly hasis without any severe objection by the Union. At the irst meeting Nolan had not yet formulated an) questions with respect to the data presented to him prior to negotiations. However, certain matters were discussed which included the disciplining and discharge of certain employees prior to negotiations which led into a discus- sion of the Employer's disciplinary system. Nolan testi- fied on cross-examination that the Union requested the Respondent at this meeting to provide thereafter written copies of "all warnings" with respect to disciplinary action toward employees and that the Respondent agreed and thereafter provided such information. At other points in his testimony. Nolan insisted that he merely asked the Respondent to provide the Union with all copies of written warnings that had been issued t em- ployees, that is to say he did not request the Respondenit to reduce to writing all warnings that had previously been issued to employees on an oral basis. Furst and Pufahl testified that Nolan complained about the high degree of warnings that employees had received recently and made a request that all warnings he reduced to writing aid that a copy be provided to the Union. in order that the Union have documentary records of all disciplinary action. Accordingly, the Respondent agreed to, henceforth, reduce all oral warnings to wkritten form pursuanlt to thce request o the Unrion. Based on my ohser- valion of the deieanior of Nolan. which includes his lclldente to testify in generalities, his vagueness and un- cerlairll y alid his conitradictiolls in areas of mutual testi- itonl, of enlploce Motsshailmer. a union sl itless. ad il the I;ace of the far more certainl definitive, detailed, and coini icing testinion of P'ufahl ad urst, I conclude that Nolan is the less reliable \ilriess, and I therefore credit tile testimony of urst and l ufahl xwith regard to anli inconsistenieis with respect to the negotiations a(nd ,hat occurred t hereater lhe Respondcnt subhntted additional information to thi lt niol il the job status of certain employees aid the Respordeitnt's use of college studenits, aid its trainiiiig prograin 'heC Unicion requested that bargainiing take place during \%orking hours ad hat tl cplo'e., be paid for teir at- tenldaiice at the negotiating e ssions. 'he Responident re- jected the proposal that emiploees be paid for negoiat- inlg tirmle. ihe meeting ended about 7:45 prm alid through mutual agreelentl. tle parties agreed to meet againl the follo iiig week ou February S. hb. Sconld mneling-t'hruar 8 The meetirng commenllerced at ahout 5:15 p.mn and ended at 1() 35 p..At. this meeting. Nolan and the Respornd- cit's bargaining team rc ised the data that had been sup- plied prior to ncgotiatimns Pufalhl. Eighteen different items relatilig to that data were then discussed b the two Ilegotialtlg teallls, including holidays. vacations, shop bontus rest periods, funeral lca.e, Christmas hams, fellowship club donations historically contributed b the Responldent, the providinlg of birthday cakes to the em- ployees, the grantiing of discounlit prchasing privileges to the eilployees at national chain tctores, the loaning of clmnpa;ry tools for personal use, the accessihility of eri- plio ees to scrap steel at the plant, the providing hs the Imployer of safety equipment, the providing by the Em- ployer of car mileage and travel allowance to employees and a shift differential in wages. military leave, and tihe receipt by employees of telephone calls at work. The Respondent agreed to continue providing hams and contributions to the fellowship club, which in fact did continue thereafter. The fellowship club provides for such matters as employee parties, baseball uniforms, etc., and is financed with proceeds from vending machines in the plant The Respondent agreed further to continue the loaning of company tools to employees and the provid- ing of scrap materials to employees and to continue fur- nishing glo es but not safety shoes, as well as to contin- ue the shift pay differential, ad military leave. The Union was willing to forgo the continued provisio of birthday cakes and discournts on purchases of employees at chain stores. The Union and the Respondent discussed the seven holidays enumerated in the ritten agreement with tilhe l)cister Concentrator Company, Inc., employees' shop commniniltee, Nolan asserted that the Respondent had. in fact, as a polic. provided Nes' Year's Eve and Christ- nmas EIe as well as the lday after Th;aksgiving in the I)IECISIONS ()OF NAII()NAI. I.ABO()R REl.A'IONS O()AkI) past, The Respondent retorted that that was a matter of discretion and that there were occasions when such holi- day was not provided. However, according to the esti- mony of Pufhal. the Respondent invariably gave some leave on each of those occasions, more so with respect to Christmas Eve and Thanksgiving Eve. The Respondent proposed that the employees' right to incoming telephone calls he circumscribed in that nics- sages merely be taken for them rather than providing them with the right to leave their work station to re- spond to personal telephone calls. The Respondent agreed however that the employees would be permitted to respond to emergency telephone calls. Neither party exchanged any written or oral collec- tive-bargaining proposals. Nolan conceded that he gave no contract proposal nor did he ask for one hut that it was his intent merely to engage in a clarification discus- sion of wages, hours, and conditions of employment in general. Nolan testified that as late as February 8 he did not have a complete "picture" of the working conditions and benefits of the Respondent's employees. He testified that the information that had been provided to him on January 24 was not of any practical use, unless he could ask the Respondent specific questions concerring that data. Thus, he explained that the mere number of holi- days was insufficient for him to formulate language on the eligibility of an employee for holiday pay and that he needed more information as to how that eligibility was determined. He testified that it was, in his opinion, more productive to get together and discuss information before either side gave a proposal. Thus, Nolan took the posi- tion that it was agreeable to him to spread out the early meetings on a weekly basis in order that he would have time to evaluate the data submitted to him by Pufahl yet incongruously, he testified that such data was of little use unless he could specifically ask questions of the Respond- ent concerning that data. Nolan testified that Furst sug- gested that the next negotiation meeting be held the sub- sequent Tuesday, on February 15. Nolan testified that his response was that the parties needed more frequent meet- ings in order to arrive at a collective-bargaining agree- ment. Furst responded that, instead, he was willing to meet on company time, but that the employees on the negotiating committee would have to clock out. Thus, Furst's response was not receptive to more frequent meetings, but he was receptive to longer meetings on a weekly basis. Nolan testified that he persisted in his de- mands at that time that the Respondent meet more fre- quently. He did so at a point in time when he conceded that he was still in the embryonic stage of digesting the information that had been submitted to him by the Re- spondent on January 24. In any event, Furst insisted that in light of his numerous other contract negotiations and arbitration proceedings, he could meet only on weekly basis. There is no indication that the Respondent at any time refused to meet as early, as long, and as late as the union requested. Nor is there any dispute as to the place of the meeting; i.e., the conference room on the employ- er's premises. c. 'he third negotiating meeting--February 15 The two negotiating teams again met at 5:15 p.m., the meeting lasted until 10:20 p.m. The union committee again raised the subject of holidays and again Nolan as- serted that, in addition to the seven contractual holidays, the employees had informed him of the Employer's past practice of granting 1/2 or I whole day the day after Thanksgiving and an extra day or half a day at Christ- mas Eve or New Year's Eve. According to Nolan, the Respondent contended that the granting of such extra holidays in addition to the seven holidays contained in the shop committee contract was a "hit or miss thing." Nolan requested that Pufahl explain the basis on which vacation pay was determined. It was pointed out to him that the employees' vacation pay was determined by taking the empoyees gross amount of pay as indicated on the W-2 form and divide that figure by the number of weeks worked during the preceding year. Thus. the weekly vacation pay of an employee was so determined. Nolan congratulated the Respondent on its past history of maintaining such a benefit. Nolan's recollection was somewhat obscure as to the balance of what was discussed at the meeting. However, it is Furst's uncontradicted testimony that many other items were discussed. Thus, Nolan informed the Re- spondent of the assignments of various stewards for each of the Respondent's departments. The Respondent sub- mitted to the union negotiating committee the amounts of the rate increases of the Blue Cross-Blue Shield pro- grams; i.e., 12 percent as of March 1, 1977. Pufahl also submitted to Nolan the employee life insurance coverage information, an updated seniority list, and certain wage rates. The parties discussed military leave and, in particu- lar, the Respondent's practice of granting 8 hours paid leave for induction day medical exams. They further dis- cussed the employer's past practice of providing jury duty pay, funeral leave, and the Respondent's practice of providing a so-called factory bonus otherwise known as the annual bonus or Christmas bonus inasmuch as it was paid shortly after Christmas in early December, on a yearly basis. No formula existed with respect to the annual bonus that was issued yearly pursuant to the dis- cretion of the board of directors based on their review of the amount of profits available. Nolan requested that the Respondent supply it with information relating to the amounts of bonuses granted in the past 2 or 3 years. and the Respondent subsequently replied with such request. Nolan inquired as to the Respondent's past practice of subcontracting, and it was explained that the Respondent had in the past years resorted to subcontracting of work as a supplement to work performed by production and maintenance employees. The Respondent took the posi- tion that such subcontracting was essential to the method in which it had engaged in business in the past. That po- sition was never challenged. At the end of the meeting, Nolan presented to the Re- spondeilt its first written contract proposal. Furst an- nounced that the parties would meet again at 5:15 p.m. the following Tuesday, February 22. According to Nolan's uncontradicted testimony, the Union objected and stated that more frequent meetings should be held. 364 D}ISTIR C)NCENTRATOR C)1MPANY Furst remained adamant that he was unavailable to meet earlier but that he agreed to commence the next meeting at 3:15 p.m. but that employees must clock out and will not be paid for negotiating time. The Union agreed to this proposal and the next negotiation meeting com- menced at 3:15 p.m. d. Fourth mneeting-Februart 22 The fourth negotiating meeting commenced at 3:15 p.m. At this meeting Nolan again requested that the Re- spondent explain its method for determining vacation pay. Again Pufahl gave the simple explanation of the use of the W-2 form to determine the amount of weekly a- cation pay by dividing the gross amount of pay as dis- closed on the W-2 form by the number of weeks worked by the employee. Nolan concededly made no response to that explanation. The parties proceeded to discuss the contract proposal as submitted to the Union at the end of the February 15 meeting. The proposal on its face is incomplete with re- spect to certain areas; i.e., articles 15 through 21 cover- ing holidays, vacation, group insurance, profit sharing, pension, out of plant assignments, and shift bonus. Also incomplete were articles 22 through 23 which pertained to the wage rates. At this point the Union was merely requesting a "substantial wage increase" and an "ade- quate pension program." The Respondent had suggested, however, that negotiations first center on noneconomic areas and, thereafter, negotiations would then pursue the economic area. The Union agreed to such plan of attack. The majority of the items not covered or covered only partially by the Union's first contract proposal centered about the economic area. However, certain areas of non- economic concern were incomplete as well and these in- cluded such items as out-of-plant assignments, bulletin boards, job classifications, reports to the Union, and leaves of absence. At one point Nolan testified that sub- mission of a contract proposal by the Union was delayed because of the Union's need to obtain and digest neces- sary information from the Respondent. However, con- cededly little information was required with respect to article 2, on recognition; article 3, on management rights, which was a standard proposal utilized in negotiations with "other employers" article 4, union security, which contained standard language and was proposed without reference to any specific information; article 5, union representation which utilized standard language; article 6, "antidiscrimination," which utilized standard language, as did also the following articles: Article 7, seniority, ar- ticle 8, health and safety, article 9, grievance procedure, which was based on standard language with the excep- tion that unlike its contracts negotiated with other em- ployers the Union retained the option to strike at the third step of the grievance procedure; 4 article 10, hours of work and overtime, article 11. call in and report in pay, and article 13, death leave. With respect to article 12 regarding washup and cleanup time, the Union incorporated and relied on infor- O eight other colleclise-hargaining agreements serriced h Nolan. only one other has such a similar strike option Nolan conceded that he did not consider this a standard hargaining demand mation the Respondent had given in its discussions on February I concerning its past practice of rest periods and washup period times. The Union therefore incorpo- rated the Respondent's existing benefits which varied only slightly from the standard language it had utilized in other negotiation contracts. With respect to article 14, Jury duty pay, the Respondent had submitted informa- tion as to its past practice on February 1. The Union submitted what it termed a standard proposal on this ar- ticle. With respect to a blank page covering articles 15-21, the Union contended that it still did not have sufficient information citing, for example, "holidays." Nolan con- tended that the Employer had given incomplete informa- tion on February 1, but that sufficient information had been submitted on February 8 and that his only com- plaint was that complete information had not been given with respect to the departmental and plant seniority (arti- cle 15 covered holidays). With respect to article 16, con- cerning vacation, Nolan was vague in his testimony and assumed that the parties had discussed the "basics." Clearly on at least two other occasions the method of determining vacation pay, a simple procedure, had been explained to Nolan. In regard to article 17, group insur- ance, the Respondent had been unable to provide early information with respect to Blue Cross-Blue Shield Cov- erage, but that information had been concededly submit- ted at the February 8 meeting. Moreover, the Union made its direct contact with Blue Cross, after February 8 and obtained the information sought; i.e., a copy of the master policy. With respect to article 18, profit sharing, Nolan conceded that the Union did receive information from the Respondent, although it had been delayed; i.e., the entire plan and trust agreement. Pufahl testified that the Respondent's delay in submitting information was caused by his review with respect to the impact of Fed- eral legislation on employer-employee contributory plans. He was not challenged by Nolan. With respect to article 19, pensions, Nolan conceded that the normal information utilized for such proposals is merely the birthdate and sex of the employee, which in- formation had been given to the Union for other pur- poses, before February 22. With respect to article 16, holidays, the Union made an oral presentation of the highlights of its proposal. The Union's first comprehen- sive proposal on holidays was a set of proposals submit- ted on April 5, in writing, which included all normal lan- guage in order to effectuate the proposal. Essentially the Union's position with respect to vaca- tions was a change in the eligibility requirement and a change in the method of calculating the amount of vaca- tion pay; i.e., 2 percent of the gross figure appearing on the employees' W-2 form, or in the alternative 40 hours at the employees' hourly rate, whichever was higher. The Union's proposals were presented in the first half of the meeting. After a recess the parties continued the discussion, and the Respondent presented the Union with six written proposals on management rights, union visita- tion rights, a no-strike/no-lockout clause, a grievance procedure, hours of work and overtime, and a seniority provision. 365 I)t'CISI()NS ()F NATIONAL IAB()R REI.ATI()NS BO)ARDI) With respect to management's rights, the Respondent requested an unlimited right to engage in subcontracting. The Union objected. With respect to union visitation rights, agreement was reached on a tentative basis. With respect to the no-strike/no-lockout clause, tile Respond- ent proposed the following language: The Union recognizes that its local officers, stew- ards or committeemen have a greater responsibility of enforcing and complying with this article and when found to be in violation of this article may be subject to more severe discipline than other mem- bers of the bargaining unit. Nolan objected to the language in the employer's no- strike proposal. However, Nolan directed his attention and discussion to the Union's position that it retain its option to strike at the third step of the grievance proce- dure. No discussion took place as to the steward liability language. With respect to other areas of the grievance proce- dure, agreement was reached between the parties with respect to the appeals time period, and in the method of selection of an arbitrator. Certain concessions were made by the Respondent as to the grievance procedure. With respect to hours of work and overtime, the Re- spondent resisted proposals by the Union with respect to double time, and time and a half for weekend work, when the workweek was less than 40 hours per week. With respect to seniority in recall from layoff propos- als, the Union requested that an employee be granted a 2-year period during which to retain his seniority rights on a layoff status, whereas the Respondent proposed a 6- month period. The Respondent rejected the Union's proposal with re- spect to call-in pay, rest periods, funeral leave, and jury duty. Other areas of disagreement included out of plant assignments of employees and bulletin boards. With respect to union security, the Respondent took the position that in view of the vote which reflected 21 votes for the Union and 14 votes for the Deister Concen- trator Company, Inc., employee shop committee, the Re- spondent was opposed to the Union's requested union shop on the assumption that the shop employee loyalists were opposed to compulsory union membership. With respect to the Union's demand for a checkoff position, Furst took the position that the checkoff proviso was a cost item inasmuch as it resulted in inconvenience and expense for the Employer to check off dues through its bookkeeping machinery. I credit Furst's testimony that not at that time nor at any other time did he make a statement in negotiations that he would never negotiate a union-security clause nor that he had ever negotiated a union-security clause. The Union at no time advanced a written proposal containing a modified union shop during the course of negotiations. Mosshamer testified rather vaguely that at one point in negotiations Nolan did propose or suggest the possibility of the Union agree- ing to a modified shop. He was not effectively corrobo- rated in this by Nolan. I credit the more definitive and persuasive testimony of Furst that the Union at no time even suggested anything less than a union-shop proviso." 'The Respondent again refused to pay employees for time spent in negotiations. The meeting adjourned about 9:30 or 10 p.m.., and pur- suanit to Furst's request the next meeting was scheduled fior March 1. e. Fifih meeting-March I Although the Respondent, as indicated earlier, had agreed to meet at the end of the first shift at about 3 or 3:30 p.m., the fifth negotiating meeting commenced at 4 p.m. because of Nolan's tardiness. Nolan explained that an associate was ill. At this meeting the Respondent sub- mitted certain profit-sharing data that had not been sub- mitted to the Union previously. By this meeting or at an earlier meeting, the Union had also obtained the informa- tion it had desired on the individual shop bonuses. The Union submitted no new written proposals to the Re- spondent. The Respondent made counterproposals to jury duty, leaves of absence. holidays, and other areas for a total of six items. With respect to the profit-sharing plan, the Respond- ent offered to eliminate the profit-sharing plan in return for a substantial wage increase. Nolan indicated that he would consider such an offer. The Respondent's position was that because of rising costs and the possibility of a lower profit margin which would endanger a continued flow of profit shares to the employees and cause discon- tentment among employees that the employees might be willing to forgo the profit shares for a guaranteed in- crease in wages. Furthermore, elimination of the profit- sharing plan would prevent the Employer from being put into a position of having to disclose its financial re- cords in a possible grievance concerning failure to grant an adequate share at the end of the year. Furst also sug- gested that the Respondent would be willing to buy back the shop bonus as well. Nolan responded that the Re- spondent should make an offer, and the Union would consider it. With respect to the Company's proposal on plant rules, the Union raised no specific objection. The Union agreed to the Company's proposal to continue the dis- bursement of Christmas hams and to its proposal on travel pay. Either at this meeting or at subsequent meet- ings, agreement was also reached as to out-of-plant as- signments. The Respondent agreed to continue its practice of con- tributing to the social club at the historical level of its past contributions. There is no evidence that it failed to do so. The Respondent agreed to present at the next meeting a proposed wage schedule. It should be noted that up to this point the Union was merely asking for "a substantial wage increase." The Union requested that the contract be retroactive to March 1. Furst was opposed to retroactivity on the the preponderance of cmtracts ncgotiated h Furst, incluling those oil hchalf if Ihe Carrotl cllngimcrale, do lot conltain unionl-shop prolVi- Sos. ltoscver he has in fact inegotiated conlracts ciintalinlng m dilfed iliionu-shop prvisos, including malnlallnce of membership or agenc ,hops 366 I)tIStIER CONCENTRATO( R C()MP'ANY grounds that absence of retroactivity of improved ene- fits under a new contract would be a lever or pressure on the Union to come to a agreement. In the course of that discussion, Furst indicated that the date March 1 had no particular significance even though it was the his- torical date for expiration of the shop commitltee con- tracts. A plethora of other subjects were discussed in- cluding incoming calls to employees, time spent b fore- men in unit work, claims of the Union that locker room and lunchroomn facilities ,here inadequate, training pro- grams, the Union's request for improved or expanded benefits in the health/mcdical insurance program (to which the Respondent insisted that it retain the 131ue Cross-Blue Shield program as the best possible cover- age), the manner and means of handling first aid situa- tions the rotation of employee members of the company, and employee safety committee. Some discussion seas held with respect to job descriptions. The Respondent did not in fact maintain detailed job descriptions and agreed that pursuant to the Union's request at this meet- ing it would comtie nce immediately to compose such descriptions. At this meeting Nolan also raised the subject matter of a contemporaneous increase in the number of written warnings issued to employees. Furst responded that of course there was an increase in written warnings inas- much as the Respondent was complying with the Union's request at a prior meeting to reduce all verbal warnings to written form. Nolan testified that indeed he had received copies of written warnings after the first meeting, where he made such request. Nolan testified that he had not in fact requested a change in procedure. As indicated above, I discredited this testimony. Nolan did not contradict Furst's testimony that on giving the explanation on March 1, Furst was not explicitly contra- dicted at that meeting nor did Nolan pursue the matter. Nolan complained of the Respondent's refusal to pay employee members of his negotiating team for time spent in negotiation during working hours. Nolan's concurrent complaint was that he wanted more time spent in each bargaining session. Therefore Furst agreed that for every other bargaining session the Respondent would be will- ing to pay employee members of the union negotiating team for bargaining time spent in negotiations up to a limit of 2 hours. Thus, the Union thereupon agreed to commence bargaining at 1:30 p.m. in the afternoon in- stead of 3:30 p.m., i.e., the shift change. It is thus clear that up to this time Nolan's position had been that the Union preferred to have more frequent meetings rather than to spend more extensive time in one weekly meet- ing, inasmuch as employees 'would have to forfeit some of their working hours at a loss to themselves. Furst and Nolan agreed that the State mediator, Kiefer, would attend the next bargaining session. Nolan testified that he could recall no request of the Union that the next session was to be scheduled any earlier than March 8. Presumably, therefore. he was satisfied and agreeable with the Respondent's proposal to spend more time in each individual weekly meeting, now that some of the lost time of the employees would be compensated by the Respondent. f. Sixth ,retang-tarch 8, 1977 Both negotiation teamis were joined by the mediator. The Conmpany presented a nearly complete written con- tractual proposal to the Union ( C. Exh. 30). The con- tract as to be effective on ratification by the employ- ces. It provided for a term of 3 years, during which the employees would receive a 5-percent raise every year, a 9-cent-per-hour raise buy back of the plant bonus. a 25- cent-per-hour raise buy back for the profit-sharing plan. and additional guaranteed holidays the day after Thanks- giving."' Nolan testified that the nion had not initiated the idea of eliminating the bonus or profit sharing in return for a buy hack. but that they did express interest in it if the "price was right." The Union's original posi- tion sas to retain the profit-sharing plan and to institute a penlsion plan. However, lie testified that he was not un- willing to discuss the Employer's suggestion of eliminat- ing the profit-sharing plan in return for a substantial pen- sion benefit. The specific proposals with respect to the buy back of the profit sharing and bonus were rejected by the Union at this meeting. Nolan again inexplicably asked or an explanation for how, the acation pay was determined and again he was informed that the gross figure on the \V-2 form divided by the actual number of weeks was the historical method for determining an employee's vacation pay. The Union responded to the Company's written contractual propos- al by stating that it would agree to reviews the proposal with the membership after the meeting and to discuss it at the next negotiation session. In fact, subsequent to this meeting, the union negotiating committee presented the proposal and the employees turned it down. The Respondent's subcontracting proposal was dis- cussed. Nolan indicated that he would agree to a subcon- tracting provision that would accommodate the employ- ees' past practice of subcontracting, and if subcontracting was conditioned on economic motivations. Certain other areas were discussed, one of which was the Respondent's past practice of adhering to strict de- partmental seniority with respect to layoffs. The Union proposed the implementation of a plantwide seniority system. Subsequently, in negotiations, the Company agreed to modify its practice by applying plantwide se- niority to the lower or unskilled labor grades but to retain departmental seniority for the upper or skilled classification. The Union agreed to this modification With respect to the Union's rejection of the buy back suggestions, it considered the 9-cent-per-hour and 25- cent-per-hour offer as inadequate not because those fig- ures fail to accurately reflect the cost factor to the em- ployer but rather because Nolan felt that the employee should be entitled to more compensation. Additionally. Nolan counteroffered with a suggestion that the Re- spondent provide for five personal paid holidays for each employee. With respect to its decision on the buy-back proposal. Nolan conceded that the Union had sufficient facts and information provided from the Company on which it could make its decision as to whether the fig- I C(r ill minor iarea, oef ,h, contracl r i noi complete for cxailrpl ith rsp ¶c t 1- ctIll-in pil! I)DECISI()NS OF NATIONAL. I.AB()R R .ATIONS BO)ARD ures were accurate. His reasons as indicated for rejecting the buy back-proposal were not that the Company's rep- resentation as to the cost factor was inaccurate, but rather that the Union anticipated that the Company's economic situation would improve, thus making the buy- back offer inadequate in light of future profits. The subject matter of retention of seniority while on layoff status by employees was also discussed. The Com- pany took an initial position that a 3-month period of time was the maximum it would agree to, but eventually it changed its position to a 12-month period of time. With respect to overtime compensation that area was also discussed as well as vacations, funeral leave, holi- day, jury duty, and rest periods. Eventually the Re- spondent agreed to a time and a half pay on Saturday re- gardless of whether the employee worked less than 40 hours per week. During the meeting, the Respondent complied with Union's request to supply it with birthdates with respect to pension data. During the meeting the Union did not submit a com- plete contractual proposal to the Employer, nor did it in- dicate when it would do so. Furst testified that the par- ties agreed to meet again on March 15. Although Nolan testified in general that he "always" asked for more fre- quent meetings, his testimony with respect to this partic- ular meeting failed to disclose an explicit demand to meet sooner than March 15. g. Seventh meeting-March 15 Again the parties, in the presence of the Federal medi- ator, met and resumed negotiations. Apparently the meeting commenced according to their past agreement, early in the afternoon and adjourned about 7:30 p.m. At this meeting Nolan announced his desire to intro- duce the International Union's pension specialist, James Compton, at a meeting that he suggested be held on April 5 in order for Compton to present the "IUE" pen- sion plan and to discuss it. At this point, of course, the Union had not presented any pension proposal to the Re- spondent. In any event, the parties agreed. Again the Union discussed the rather simple vacation pay formula that the Employer had historically utilized. According to Nolan, he asked Furst some questions about the profit- sharing plan. Nolan did not detail exactly what he asked, but Furst responded that he felt constrained to seek legal advice from a Chicago attorney in order to answer the questions. According to Nolan, he suggested that Furst should arrange to have the Chicago attorney present at the April 5 meeting in order to speak directly with Compton. In the meeting, the Union was told that its pension specialists should call Pufahl directly with spe- cific questions concerning the profit-sharing plan. Nolan concluded that there was no purpose in discussing that particular matter any further, and he dropped the matter. The parties engaged in a discussion of premium pay for weekends, overtime pay on holidays, and according to Nolan, the "outer edges" of the union-security clause issue was discussed, whereupon Furst again alluded to the Board-election vote. Nolan testified, rather vaguely, that he had the impression that the Respondent's position with respect to this issue was to "protect the minority vote" at the Board election. Further discussion ensued with respect to manage- ment's rights, the payment of union representatives for attendance at negotiating meetings for subsequent con- tracts, seniority, recall rights, payment for employee pre- scription lenses as proposed by the Union, grievances rel- ative to the determination by the Company as to the rate of pay of an individual employee, overtime, job descrip- tions, and status or part-time employees. The Union took the position that a ratio should he worked out between full-time and part-time employees. The Union proposed that two or three employees as a maximum he employed as part-time employees in a ratio to approximately 35 full-time employees. The Union took an adverse position to the employment by the Employer of part-time em- ployees. This position was taken in the context of the general layoff, which preceded the election after which full-time employees were on layoff status despite reten- tion of part-time employees. Nolan testified that an ex- tensive discussion took place with respect to the subject matter. The Company took the position that it had a practice of hiring students, some of whom were attend- ing a technical school, and it desired to adhere to that practice and to retain these students. Up to this point the Respondent had not submitted the requested detailed job classifications for employees. Furst testified that the meeting adjourned, and the parties agreed to meet again on March 22. According to Nolan, Furst suggested that the next meeting take place again on the following Tuesday. However, Nolan had no recollec- tion of making any objection to that suggestion, and con- ceded that his notes of this particular meeting were silent as to any objection or request to meet earlier. I, there- fore, conclude that he made no explicit objection. h. Eighth meeting-March 22 The negotiating teams met this time in the absence of the Federal mediator. The meeting commenced at 3:15 p.m., according to Nolan. There is no explanation as to why the parties did not meet earlier pursuant to the past offer of the Respondent to commence earlier meetings. The Respondent presented the Union with a written counterproposal (G.C. Exh. 38), which contained revised language in 10 areas of its proposed contract. Various noneconomic areas were covered under the revisions. Additionally, the Respondent submitted a revised eco- nomic offer to the Union. The Company raised its wage offer to provide for a 5-percent raise the first year' a 6- percent raise the second year; and a 7-percent raise the third year. The buy back of the profit sharing was raised to 30-cents per hour, and the buy back of the annual bonus was raised to 9-cents per hour. With respect to the holidays, the Respondent offered eight holidays the first year, i.e., including the day after Thanksgiving, and fur- ther proposed to add a 9th holiday in the second year and a 10th holiday in the third year, i.e., New Year's Eve and Thanksgiving Eve. Its offer with respect to a 2- week paid vacation, as proposed in the last offer, was im- proved by changing the eligibility period from 3 years' service to a 2-year service. 368 DEISTER CONCEN'RATO)R CO()MPANY The Union rejected the Company's offer. The Union submitted no written offers or counteroffers. Nolan testi- fied that the Union made an oral response to the Compa- ny's counterproposal in the manner of making "sugges- tions" of different "approaches." No witness had a clear recollection of when the March 22 meeting adjourned. Furst again testified that the parties mutually agreed to meet again on March 29. Nolan's testimony in regards to the scheduling of the next meeting was again vague and uncertain. His notes were silent as to any discussion as to when the next meeting should be scheduled. He testified generally and unconvincingly that he had routinely asked the Respond- ent to meet more frequently. In view of his lack of spe- cific recollection of the discussion of this issue and the failure of his notes to reflect such an issue I conclude that the failure of the Respondent to agree to more fre- quent meetings was not perceived as a critical problem by Nolan at this point in time. i. inth meeting-March 29 The meeting commenced at 3:15 p.m. according to Nolan's recollection, and with the presence of the Feder- al mediator. The mediator announced that he was not available for a meeting during the week of April 17. Furst announced that he was not able to meet the fol- lowing Tuesday, but would be available on Wednesday. The Respondent announced the layoff of one full-time employee and the termination of three temporary em- ployees. The Union took the position that rather than lay off any more full-time employees that more part-time employees should be laid off. Furst responded that the Employer valued the services of part-time employees as much as a full-time employee. For some reason the parties again discussed the fellow- ship fund contributions, and both Furst and Nolan testi- fied that again the Respondent agreed to continue its past practice of contributing to that fund. Again the par- ties discussed job descriptions and the Respondent reiter- ated its promise to draw them up. (There is no conten- tion by the Union that the Respondent purposely delayed its efforts in this regard.) The Respondent presented the Union a set of proposed company rules. According to Furst the Union took a po- sition subsequently that the rules were unclear with re- spect to conduct outside the plant premises and that the Respondent thereafter accommodated the Union's objec- tion by changing the rules. Nolan's testimony concerning these rules is vague and uncertain. He testified that he did not recall giving a tentative agreement to the rules, and that he "didn't believe" that he did so but rather that he took exception to "some rules" either at this meeting "or later." He did not recall whether the Union engaged in the discussion of those rules then or at a point in time later. He did have some specific recollection to an excep- tion that the Union took to rule number 19; i.e., employ- ee conduct off the employers' premises. According to his notes, the Union also took exception to certain rules con- cerning the asportation of company property from the plant. At other points in Nolan's testimony, he testified that there was discussion concerning the revised rules on absenteeism, in particular what constitutes excessive ab- senteeism. At one point in this meeting, the Union unsuccessfully suggested that the Company expunge the disciplinary re- cords of all employees of all reprimands as a "good will" gesture. Thereafter the Union referred to a specific complaint by employee Mosshamer with respect to his being sent home because he refused to work wearing a hard shoe in view of the fact that he had a blister on his foot which required him to wear a tennis shoe. The Union contend- ed that other employees were entitled to wear soft shoes. the Respondent took a position that if such were the case that employees did wear soft shoes they were doing so contrary to company policy which required, for safety reasons, that hard shoes be worn. The Union suggested taking the matter to arbitration but the Respondent re- fused. 7 It is Furst's uncontradicted testimony that Nolan opened the meeting by stating that the Union could not respond to the Respondent's last counterproposal, but that the Union would file unfair labor practice charges alleging bad-faith bargaining, harassment, and surveil- lance. Furst testified that Nolan only explained the basis for the charge of harassment by referring to the increase in warning notices whereupon Furst reminded him that all warnings were reduced to written form pursuant to the request of the Union. No explanation was given for the surveillance accusation. Subsequently an unfair labor practice charge was indeed filed. Nolan gave no re- sponse to Furst's explanation with respect to the written warnings. The meeting adjourned at 6:55 p.m. Nolan testified that the Union never took a position that the meeting should adjourn at any particular time. He testified that the only position that the Union took in negotiations with respect to the time and length of meetings was that the meeting should be held more frequently. Again, his recollection and notes were silent as to any specific dis- cussion as to the next meeting. He testified that he did, however consistently, plead for more frequent meetings. In view of the lack of any specific testimony as to any specific discussion in this regard after the initial subject matter was raised early in negotiations, I am constrained to discredit his generalized testimony and conclude that he acquiesced willingly in Furst's suggested pattern of weekly meetings. The next meeting was scheduled on April 5 at 1 p.m. to accommodate the union representative, Compton, who was to make a presentation on the IUE pension plan. The Respondent agreed on April 5, as the date for next meeting. In view of the fact that the Union selected April 5 as the date of Compton's presentation and in the context of such a suggestion it is unlikely that Nolan would have asked to have met any earlier. Nolan testi- fied that the parties agreed to meet again on April 13 fol- lowing Compton's presentation. Intiall. Mlh.shatmr r diunid knou ledge if a;l 'iafft r pr-hihiilng ilrl shtr ., hl h t adini lltd orin cros-examillltn that ftlkv rmpllotftc .arnedl hllnl agalrltlt Ihc a carillg of ,,ofi .hoc 36h9 I)1 CISI()NS ()F NA I()NAI I.AIBO()R REL.ATIO)NS ItO() \RD j. lent/h mneeting-,-lpril 5 'The two negotiating teams, whho were joinled by the Federal mediator and by International Union Representa- live Compton, met at the Employer's premises. Compton made a presentation of the IUE pension plan. This oc- curred during the first phase of the meeting, which lasted froni 1:30 p.m. to 3:05 pm. According to Nolan the parties agreed to meet again at 7:30 p.m.. but the meeting did not resume until 8:05 p.m.. because the union representatives were tardy. During the presentation of the pension plan and the first phase of the meeting, the Respondent took the posi- tion that the pension plan was indeed a good one. How- ever, it was opposed to the plan because of the inherent cost involved in the plan, and because the Respondent considered that in view of the young age of many of its employees that they would be more interested in imme- diate higher wages than in a benefit that would not inure until 30 years hence. Nolan testified on direct examination that he could recall no discussion of other matters of substance. It is Furst's uncontradicted and credible testimony that Nolan stated at the preceeding March 29 meeting that the Union would give a written counterproposal to the Re- spondent on April 5. On cross-examination Nolan's testi- mony was extremely uncertain and vague as to what ref- erence he made to the unpreparedness of the Union to present a counterproposal on March 29. He merely shrugged off the injury by stating that "apparently" the Union made no counterproposal on March 29. Again, ac- cording to Furst's credible and uncontradicted testimony, after Compton had left and the parties resumed discus- sions, Nolan stated that because of secretarial problems he was unable to give a complete written contractual proposal on April 5, and he did not indicate when he would be able to do so. However, he submitted a partial proposal. In further cross-examination, Nolan's memory was somewhat improved. He conceded that at the April 5 meeting Pufahl gave an explanation of the Respond- ent's profit-sharing program "in great detail." He re- called that there was a discussion of the Respondent's 30- cent-per-hour buy-back offer of the profit-sharing pro- gram. He also recalled that he did, thereafter, indeed submit a third set of union proposals, which he conceded to be "partial" counterproposals because it did not pos- sess all the language which would be necessary for full implementation concerning the subject matters. The Respondent submitted the requested newly com- posed job descriptions of individual employees' jobs and Nolan indicated that he was satisfied. According to Furst's credible and uncontradicted testimony, Nolan also suggested that the Respondent make its wage offer in terms of cents per hour rather than a percentage refer- ence in future counterproposals. According to Furst, the parties agreed to meet again on April 13. Nolan testified that he commended the Respondent for its effort in pro- viding the job descriptions. On recourse to Nolan's pre- trial affidavit, he changed his testimony to indicate that the Union's counterproposals were presented on April 13, but unsure as to whether he did in fact give any par- tial proposals on April 5. Neither party was explicit as to the time of termination of the April 5 meeting. It is clear, however. that the Union made no suggestion that the parties continued negotiating at that date, and that the Respondent did niot resist any effort to engage in further discussion or negotiations on the day of April 5. k. Eleventh inectitg-pril 13 Nolan testified that the parties met on April 13 at 3 p.m. No explanation is given as to why the Union did not avail itself of the Respondent's past offer to meet, earlier in the day. At this meeting Nolan presented sev- eral counterproposals. The parties discussed seniority, telephone calls to employees, and supervisors' perform- ance of unit work. They also discussed the status of tem- porary and part-time employees, and the subcontracting clause. The Union accepted the Company's offer with re- spect to the employees' retention of seniority rights for a maximum period of 12 months after their layoff. The union-security clause was discussed. The Respondent again refused to agree to a union shop but offered to agree to a checkoff pro ision in return for the Union's acceptance of a buy back in return for the elimination of the profit-sharing plan. Nolan accused the Respondent of engaging in a selffulfilling prediction in that during the preelection campaign the Respondent referred to the prospect of bargaining "from scratch," wherein the em- ployees might in negotiations lose what benefits they en- joyed prior to the election of the Union. However Nolan did not change the position of the Union that it would consider such a buy back if the price was right. Nolan was particularly evasive with respect to wheth- er the buy-back offer of the Company represented an ac- curate ad fair return A first Nolan testified that he contested the buy-back figure, and asked for information concerning profit-sharing for the preceeding 3 to 5 years. Then he testified that the Respondent did indeed provide the information to the Union in order for it to determine if the 30-cent-buy-back figure was fair. His testimony is unclear as to what evaluation the Union made of such in- formation. Nolan failed to testify that he made any coun- teroffer with respect to a modified union shop. Mos- shamer who was called to testify in limited corroboration of Nolan in certain isolated areas of the negotiations tes- tified for the first time in cross-examination that the Union indicated that it would accept a modified union shop. However, Nolan was silent as to this offer, and Mosshamer's notes failed to reveal that any such offer was made to the Respondent. I credit Furst that nothing less than a full union shop was proposed or suggested by the Union. The Respondent offercd to pay employee negotiators 2 hours for every other negotiating meeting with respect to negotiation of the next collective-bargaining agree- ment. The Respondent agreed to several union proposals with respect to minor matters such as safety glasses; i.e., the cost to employees of prescription lenses would be offset by the cost of safety glasses. Certain grievance lan- guage of the Union's proposals was accepted by the Re- spondent. The Respondent still maintained objection to the Union's continuing demand that it retain a strike option at the third step of the grievance procedure. The Respondent submitted to the Union a counterproposal on 37) DlIlISItR C()N('INI'RATO(R ('()MI'ANY report-in-pay, v hich was similar to that w hich Furst had negotiated in other IUEI collective-bargaining agree- ments. Nolan rejected it outl of hand. Further discussions ensued with respect to rest periods, holidays, leaves of absence, and job descriptions. The Employe, agreed to provide a lunchroom facility within 18X months. About I a.m. in the morning, the Respondent offered the Union a 3-year collective-bargaining agreement effec- tive on ratification, containing a 25-cent-per-hour raise for the first year, a 7-percent raise the second year, and a 7-percent raise the third year; a 30-cent-per-hour buy back of the profit-sharing plan: a 9-cent-per-hour buy back for the production bonus; as well as the additional holidays for Friday, Christmas Eve, and New Year's Eve. as previously offered. Additionally, the Respondent improved its position with respect to the eligibility for vacations and agreed that an employee would he entitled to 2 weeks' vacation after 2 years' employment. Agreement was reached between the parties with re- spect to article 14 of the contract concerning jury duty. With respect to seniority the parties had engaged in ex- tensive discussions during the course of the meeting and the Union agreed to finalize its proposal at some time following this negotiation meeting. The parties also dis- cussed the ratio of part-time employees versus full-time employees, but agreement was not reached on April 13. Nolan testified sonimewhat confusedly as to just how the subject of strikes or a possible strike arose at this ne- gotiating meeting. At one point. he testified that Furst, during negotiations, continually referred to a strike. However, he could not recall any specific dates when this occurred. Furst testified that he raised the subject of a possible strike at the April 13 meeting after hearing rumors in the plant that the employees had intended to engage in a strike. On cross-examination Nolan testified that Furst did refer to "scuttlebut" in the plant regarding a possible union strike. Mosshamer vaguely testified ini- tially that Furst had made references to a possible strike during negotiations. However, his notes were silent as to any reference by Furst concerning a strike. Rather Mos- shamer's notes revealed that it was Nolan who referred to a strike in that Nolan made the statement to Furst on April 13 that "if bargaining does not pick up," or "if things did not come together a little more" that the em- ployees would engage in a strike. I find the testimony of Furst more confident, certain, and convincing. I credit his testimony that he learned through the grapevine of the possibility of a strike and that he told Nolan that if the employees engaged in a strike then the Respondent's offer with respect to 30-cents and 9-cents buy back of the profit sharing and bonus might be affected by a re- duction in profits which would necessarily be caused by an employee strike. Nolan's testimony on this point was uncertain and confused. Nolan's affidavit is silent with respect to any statement by Furst as to his purported al- legation in negotiation that all that the employees wanted to do was engage in a strike. Rather, the affidavit merely reflects that Furst told Nolan that the employees' en- gagement in a strike might have an impact on the Re- spondent's buy-back offer on the bonus and the profit- sharing plan. Nolan responded that he would advise the employees of the "bargaining status." However. with respect to the Respondent's late hour offer on April 13 the Union made n counteroffer. Mosshamer testified with uncertainty and ith gener- alit it as to the I11th bargaininig session. Mosshamer con- ceded that at the I Ith meeting Furst claimed that the parties were at an impasse. According to Mosshamer, Nolan denied that an impasse had been reached. Howev- er, Mosshamer's notes are silent as to any such position taken by Nolan. and Mosshamer did not recall whether or not Nolan made a statement as to where the Unioni thought that there was room for movement. His testimo- ny in this regard is extremely uncertain. Nolan's owni tes- timony is silent as to any denial by him of an impasse. The meeting of the 13th concluded then on Nolan's indi- cation that the Company's contract proposal ouldl be presented to the membership. According to the uncontradicted, credible testimony of Furst the parties had not agreed to the date of the next meeting, and the Federal mediator had at some point prior to this assumed the responsibility of setting the negotiation meeting dates. 1. 7/he strike vote mnt'ting-.-April 15 On April 15 the Union conducted a meeting of the unit employees. Nolan's testimony is starkly divergent from that of Mosshamer as to what was reported to the employees at this meeting. Nolan testified in a cryptic, vague, conclusionary, uncertain manner as to the fact that the union negotiating committee conducted an em- ployee meeting, and that the committee informed the em- ployees of the status of bargaining. Variously, Nolan tes- tified that "we" informed the employees, etc. When pressed as to whether it was he or another person who made the report to the employees, Nolan insisted that he made the report to the employees. and thereafter the em- ployees voted to engage in a strike. It is Mosshamer's more certain and convincing testimony that the employ- ee committee presented the report to the employees as to the status of bargaining and that the employees engaged in two ballots, the end result of which was to engage in a strike. It is Mosshamer's testimony, which I credit, that Nolan did not appear at the meeting until after the con- clusion of the strike vote. Thus, I conclude that Nolan's testimony as to what was presented to employees prior to the strike vote was contrived. The meeting of employees commenced about 7 or 7:30. Mosshamer conducted the meeting. Nolan \was absent. Mosshaner reviewed the bargaining positions of the Union and the Employer with respect to economic and noneconomic contractual issues Mosshamer gave an estimate of how far he considered the Respondent might move, and how far the Union might move on major issues. The employees reacted with an assumption that the parties were too far apart on the major issues to come to an agreement. Mosshamer told the employees that the Respondent was willing to continue to meet and negotiate, and furthermore that the union negotiating committee was seeking areas of possible compromise. Mosshamer testified that he told the employees that it 171 DECISI()NS OF NAI()ONAL L.ABOR RELATIONS BOARD was his opinion that the Respondent might be willing to move in certain areas. However he reported to the em- ployees that the Respondent would not change its posi- tion with respect to union shop, the pension plan, the number of holidays offered, the vacation pay, and the elimination of the shop bonus, as well as certain other contractual issues. Mosshamer testified that he identified 10 specific areas of disagreement, i.e., union security, health and safety, hours of work and overtime, rest peri- ods, death in the family, vacations, wage rates, strikes and lockouts, grievance procedure (i.e., right to strike at step 3), and group insurance. These were the main areas of disagreement. He had no recollection that any other issues were discussed. At one point on redirect examina- tion by the General Counsel, lie testified pursuant to a leading question that he "believed" that the November 1976 layoff was discussed. He was clearly uncertain about this topic and appeared to be speculating. Certain- ly that issue did not stand out in his recollection as a major issue. When called to testify again he failed to refer to it in his enumeration of issues discussed at the strike vote meeting. I conclude that if it was mentioned at all it was only a peripheral reference, and not a matter of importance as of April 15. Mosshamer reported to the employees that in refer- ence to the union-security clause, the Union might be willing to accept a modified union shop in the form of a maintenance of a membership clause.8 He further report- ed to the employees that the Union negotiating commit- tee felt that the union might have room to make counter- offers in the form of concessions as to what it was re- questing with respect to the amount of contributions to the proposed pension plan, reimbursements under the health and safety clause, and furthermore the Union might make concessions with respect to the amount of vacation time due to employees, elimination of the bo- nuses, holiday pay, the wage progression schedule, eligi- bility for funeral leave, group health insurance coverage, and the number of issues over which the Union would retain the right to strike at the third step of the grievance procedure. Mosshamer reported to the employees the committee's opinion that the union negotiating commit- tee should engage in two or three more negotiating meetings before the employees engaged in a strike. Fur- thermore Mosshamer told the employees that the Em- ployer was willing to meet and negotiate. The employ- ees, however, first voted to authorize strike authority; and secondly, voted to actually engage in a strike; and, thus, vetoed the committee's recommendations for any further concessions in its bargaining posture. It is clear that the strike, as voted by the employees at that meeting, was taken for the purpose of supporting the Union's position at the bargaining table. No reference or any discussion ensued during that meeting with re- spect to any alleged unfair labor practices by the Re- spondent-Employer except as to the union-security clause. No reference was made to the employers' prebar- gaining or precertification conduct, no reference was made to the preelection layoffs. No reference was made s It is unlikely that he would have made this suggestion, if at any time Furst had rejected ant union suggestion for a modified union shop. to reprimands. No reference was made to any alleged unilateral actions taken by the Respondent with respect to any terms or conditions of employment. No reference was made to any alleged harassment. Any reference to laid off employees, if made, was vague and peripheral. There was no reference at that meeting to the employ- ees' refusal to meet more frequently, nor was there any reference at that meeting to any position of the Union that more frequent meetings had been denied. Indeed Mosshamer specifically advised the employees that the Employer was willing to meet, and he further advised them that it was the negotiating committee's opinion that two or three more meetings might have been fruitful. Clearly the union negotiating committee had not report- ed to the employees its opinion that negotiations had broken down because of bad faith bargaining by the Re- spondent. Rather it was Mosshamer's clear report and advice that some concessions by the Union might effec- tuate a future-Respondent compromise. According to the testimony of Mosshamer, the only clear reference to any of the allegations in the complaint concerning unfair labor practices of the Employer related to the employer's position with respect to the union-security clause. In this regard Mosshamer characterized the union-security clause issue as an area for possible movement by the Union; i.e., toward acceptance of a modified union shop.9 Although Mosshamer related to the employees his opinion of where the union negotiating committee might make some movement on the contractual issues, he con- ceded that such area of movement was not presented to the Employer at the bargaining table. But rather, it was an internal matter which was put to the membership to decide whether further concessions ought to be made or whether the employees should engage in a strike, in order to support and obtain the bargaining position main- tained up to that point in time by the Union. Thus by virtue of the strike vote, a decision was made by the Union not to make any further contractual concessions. After the second strike vote was taken Nolan arrived. On Nolan's arrival, the mechanics of setting up a strike were discussed. Nolan pointed out to the employees the advantage of characterizing the strike as an unfair labor practice strike; i.e., enhanced reinstatement rights. That subject had arisen 2 or 3 months earlier when certain of the union leaders whom Mosshamer characterized as "radicals" inquired of Nolan as to the prospect of rein- statement after engaging in a strike. Nolan had explained the distinction to those few individuals at the earlier point in time. However, the subject matter did not come up on April 15 until after the employees had decided to strike. After the decisive strike vote, Nolan told the em- ployees that in view of the Respondent's "past experi- ' No reference was made by Mosshamer to the Respondent's sugges- tion of greater union steward liability with respect to the breach of the no-strike clause. Indeed Furst's testimony is uncontradicted to the effect that after Nolan's initial general objection, he did not continue thereafter to object to the stewards' liability Rather, Nolan conceded that his only continuing objection to the Respondent's proposed no-strike clause was that it impacted his position that the Union retain an option to strike at the third step of the grievance procedure Nolan had in quick order ac- cepted the greater liability language 372 DFISFLR CO()NCEN'NT'RATOR CO()MP'ANY ence" and the "way the Company bargained." the em- ployees could characterize the strike as an unfair labor practice strike. The meeting occurred on Friday. A strike was set up on Monday, April 18. and picket signs bearing the legend, "Unfair Labor Practices Etc." were carried by pickets at the Respondent's premises. There is no evidence that any subsequent conduct of the Respondent apart from its bargaining position, had any effect on the continuation of the strike. m. Twelfth mneeting-April 26 Sometime after April 15. through the efforts of the Federal mediator, Furst agreed to submit a new proposal to the Union. By letter dated April 20. Furst forwarded a revised copy of a proposed collective-bargaining agree- ment together with a letter of understanding (G.C. Exh. 34). In the letter, Furst indicated that he was agreeable to meet with Nolan on April 26. A meeting was ar- ranged on April 26 by the mediator. The meeting was held at a hotel near the airport in view of the fact that the picket line was set up at the plant. It commenced at 1:30 p.m. The mediator and representatives of the parties were present. The Union had received the Respondent's proposal on or about April 21. The wage schedule at- tached to the proposed contract contained the ten exist- ing wage rates that the Employer had been paying. The proposal contained some minor changes with respect to the progression of increases in wages. The wage offer for the proposed 3-year contract, effective on ratification, was 25 cents for the first year and 7 percent for the second or third year. In the covering letter accompany- ing the contract, Furst pointed out that the Respondent's offer for the buy back of the bonus and profit-sharing plan of 9 cents per hour and 30 cents per hour was with- drawn in consequence of the commencement of the strike. Furst pointed out in his letter that "obviously the strike will reduce both our production and profits," which requires a reduction in both the above figures. The longer the strike lasts, the less will be the Compa- ny's offer for deletion of the above plans. At the April 26 negotiation meeting, on questioning by Nolan, Furst stated that as the strike progressed and as profits diminished, the amount of the buy back offered by the Company would lessen. On insistence by Nolan as to an estimated future reduction of the offer, Furst re- sponded that after a month of strike activity the produc- tion bonus buy-back offer could be reduced from 9-cents per hour to 7-cents per hour for the production bonus and the profit-sharing buy back could be reduced from 30-cents per hour to 25-cents per hour, and that conceiv- ably the profit-sharing buy-back offer could be reduced at the rate of 5-cents per month during the continuation of the strike as a reflection of loss of profits as the strike continued. The parties engaged in the discussion of several other areas including layoffs, i.e., the point of time on which the Respondent would compute the running of the se- niority, i.e., whether it would commence to run from the date of the layoff or from the date of the collective-bar- gaining agreement ratification. The Respondent took the position that the seniority retention period of a laid-off employee should commence from the date of the layoff. Agreement was reached in certain areas, e.g., the defi- nition of the ratio of part-time employees to the total work force; i.e., 10 percent of the total work force. The area of agreement however was with respect to extreme- ly minor matters. At this meeting Nolan discussed rule 19 of the Company's proposed rules and regulations, and agreement was reached to delete rule no. 19. Thus by this meeting, full agreement was reached as to the Com- pany's proposed rules and regulations. Nolan had presented some revised language with re- spect to vacations which was discussed, but no agree- menrit was reached. Nolan had additionally proposed lan- guage with respect to the seniority and layoff clauses. Ilowc,,er Nolan insisted on the Union's right to strike at the third stage of the grievance procedure. He further in- sisted on double time for holiday pay and the call-in time for boiler inspections; i.e., a guarantee of 4 hours which the Respondent rejected. As yet, the Union had not re- duced its total contractual proposal to one full and com- plete written document. Nolan agreed however, to pro- pose new language with respect to the seniority clause and layoff procedures and vacations and to put such pro- posals in writing pursuant to the request of the mediator that the Union should put its position, in toto, in writing. The mediator therefore asked the Union to deliver its total written contractual proposal to the Respondent. Thereafter Nolan complied with the request of the medi- ator and delivered to the Respondent on Friday, May h its total written contractual proposal except for three minor corrections which were presented orally at the next meeting on May 10. n. Thirteenlth meeting-.-M ay 10 The May 10 meeting was arranged and scheduled by the Federal mediator. It took place at a hotel at 1:30 p.m., on May 10. Nolan presented a letter dated May 10 which set forth three areas of corrections or modifica- tions of the Union's complete written contract proposal (G.C. Exh. 36).1° The parties proceeded to review the Union's written contract proposal. Furst proceeded to set forth the Respondent's position on an article by article basis as to what the Respondent would accept or would not accept. Of the areas of the substance there was agreement on management rights, as the Union proposed to accept the Company's April 20 proposal. Additionally. as to union representation, agreement was reached with respect to the structuring of the Union's negotiating committee. However, no agreement was reached with respect to the pay of union representatives engaged in representational duty, particularly with respect to the payment of employees in subsequent negotiation meet- ings for succeeding contracts. The Respondent's pro- posed maximum of 2 hours' compensation for every other meeting was rejected by the Union, which insisted on the compensation for all meetings with a limit of 2 or 3 hours per day for each meeting and also compensation for all meetings to take place outside the Employer's premises with a maximum of I hour per each meeting. I"l (erldin areas of Ihe c ntitrac inl rpoirllr d hy reference certain ma- terial 373 I)ECISI()NS OF NA'I'I()NAL I.ABO()R REL.ATIONS H()ARI) The Respondent conceded with respect to a minor area under article 7, section 7, dealing with filling of open job classifications, and section 8 regarding the decrease in the work force. Similarly, the Respondent conceded in an area under article 10, hours of work and overtime, concerning section 4, the scheduling of overtime. Addi- tionally, the Respondent agreed to increase its offer for compensation to an employee for use of his personal truck under article 25 of the contract. With regard to matters of more substance, essentially the Union did not by its May 10 contract change its basic position, except perhaps with respect to the area of the vacation pay formula. The Respondent had by its April 20 contract adopted one of the alternative methods of computing the vacation pay as previously proposed by the Union; i.e., 2 percent of the gross figure as reflected under the W-2 form. According to the credible testimo- ny of Furst, Nolan agreed to that formula. Thus accord- ing to Nolan by the end of the May 10 meeting, tile fol- lowing areas witnessed agreement pursuant to proposals and counterproposals and suggestions by both of the par- ties: (1) the agreement article; (2) recognition; (3) man- agement rights; (4) discrimination; (14) jury duty pay; (19) company rules and regulations; (18) nonbargaining unit employees and part-time employees; (21) telephone calls to be received by employees. (Respondent acqui- esced on May 10, the Union's proposal); (29) reports to the Union; (24) overnight assignment to employees; (25) mileage payments to employees (concession of the Re- spondent on May 10); (30) the "general" clause; (31) the duration of agreement clause, and in addition there was a letter of agreement in reference to several minor items, and the Union's May 10 proposal concerning the provid- ing of lunch and locker room facilities. There was no agreement with respect to union security and checkoff. The Union had insisted on a full union-shop clause and had offered nothing less. The Respondent maintained its position that in view of the large percentage of votes cast for another labor organization, it was unwilling to grant the Union a union-shop clause. With respect to the checkoff provision, the Respondent considered that to be a cost item and was willing to agree to a checkoff as part of its economic package relating to the buy back of the profit-sharing plan. The Union insisted on the option to engage in a strike at the third stage of the grievance procedure and accord- ingly would not agree to the Respondent's no-strike clause. The Union's May 10 proposal set forth language in accord with the Respondent's language as to the greater responsibility of negotiating committee members or stew- ards in complying with the no-strike clause of the con- tract and further agreed that when they are "found to be in violation may be subject to more severe discipline than other bargaining unit employees. Any such imposed discipline may be subject to the grievance procedure." Indeed Furst's testimony is uncontradicted to the effect that during preceding negotiations Nolan explicitly con- ceded that shop stewards have such greater responsibili- ty. However, the discussions never got to the point of defining what that responsibility entailed. Furst testified that he took the position that union stewards not only must not join a wildcat strike but they must take some active steps in preventing a wildcat strike as employees walked out. However Nolan did not object to that dis- tirction and did not distinguish between positive action and nonaction by a union steward with respect to a wild- cat strike. It clearly was not a matter of concern to the Union during negotiations. With respect to the balance of the contract, there was ino agreement as to economic and noneconomic matters covering vast areas. The Union's May 10 contract pro- posal set forth a wage increase of 50-cenlts per hour for the first year, retroactive to March 1, and a 7-percent in- crease for each of the next 2 years. It provided for 5 per- sonal days' leave. Its pension provision incorporated by the Union's proposal made during a negotiating meeting of April 5 providing for a contribution of 25-cents per hour by the Respondent. The Union's May 10 proposal differs from the Respondent's April proposal with re- spect to vacations as to eligibility of the employees and the amount. With respect to group insurance, the Re- sponident proposed continuation of its then existing cov- erage for the employees. The Union's proposal sought an expansion of benefits. On the profit-sharing plan, the last reference to the profit sharing, apparently, was in the written proposal the Union submitted on April 13. Therein the Union indicated in writing that it was agree- able to terminating the profit-sharing plan if it were re- placed with the "IUE Small Plant's Pension Plan." The Union indicated that it desired 20 cents of the buy back to be contributed to 'he pension plan and a balance of the buy-back figure applied to an increase in hourly wages. The Union proposed a 40-cent buy back for the pension plan. Subsequent to the April 26 negotiation session, the Re- spondent considering the matter of wage increases to have reached an impasse and instituted a wage increase of 25-cents per hour in accordance with its last offer to the Union which had been rejected by the Union. The May 10 meeting ended subject to the call of the mediator for a subsequent meeting. In fact the mediator did not call another negotiating meeting and the strike continued. Nolan conceded that following that meeting, and during the course of the strike in July, the mediator contacted him and asked him if the Union was willing to make any changes in its position to which he responded that the Union desired to make no changes in its posi- tion. Subsequently the mediator communicated with the Respondent's representatives and advised them that the Union was inflexible in its position. The Respondent's representatives informed the mediator that they in turn were inflexible with respect to their position. 3. The settlement agreement By letter dated July 29, Union Representative Nolan made to Pufahl an unconditional offer to return to work of all 30 striking employees. Concurrently, the Respond- ent and the Union engaged in discussions at the Board's Regional Office with respect to settlement of the original unfair labor practice charge in Case 25-CA-8803, which had been filed on April 4. 1977. Settlement agreement was executed by the parties on August 5 and approved 374 t)EISltER C()NCENFRAFOR COMPANY by the Regional Director on August 9, 1977. The settle- ment agreement provided for reimbursement of backpay to alleged discriminatecs in Case 25-CA-8803 including employees alleged to have been laid off, in paragraph 6(a) of the complaint, on or about November 5 and 24, 1976. The settlement provided that the Respondent make whole employees for 6-1/2-hours of holiday pay that they would otherwise have received in November 1976. The Respondent paid approximately S25,000 in backpay claims. The Respondent undertook in a notice to em- ployees a promise not to engage in layoffs or other dis- criminatory conduct with respect to conditions of em- ployment of its employees. It further recited that it would not engage in various acts of interference of em- ployees' rights; e.g., interrogation, promise of benefits. creation of the impression of surveillance, and threats. etc. The Respondent undertook that it would bargain with the Union with respect to union security and that it would meet with the Union at reasonable times and places to negotiate and discuss matters with respect to rates of pay, wages, hours of employment, or other con- ditions of employment. The Respondent recited that it would not withdraw or threaten to withdraw proposed benefits which had been previously offered because its employees had engaged in lawful union activity or con- certed activities for the purposes of collective bargaining and mutual aid and protection. It further promised that it would not unilaterally change existing wage rates, hours of employment, paid holidays, and contributions to the employees' social club. The Respondent further offered five named strikers who had not previously been reinstat- ed, immediate and full reinstatement to their former jobs. The Respondent further agreed to place on a preferential hiring list for future employment seven employees who were to be offered the first available positions to become available for them for which they were qualified. Fur- ther, the Respondent offered four employees immediate and full reinstatement to their jobs. Finally the Respond- ent reserved the right to place six strikers on the same preferential hiring list subject to the Respondent's right to deny their reinstatement if it were subsequently ascer- tained by the Respondent that such strikers had engaged in such misconduct during the course of the strike that would "bar reinstatement of an unfair labor practice striker under the law." Of those last six strikers, only two, Robert Preston and Mark Anderson had not been recalled because of alleged misconduct during the strike. The other four had been recalled in order of their senior- ity from the preferential hiring list, or had tendered their resignations. All strikers whose names appeared on the preferential hiring list had ultimately been recalled or had quit. Also all nine employees who were to have been immediately reinstated were in fact reinstated. As a consequence of this, no employee who had been hired as a permanent strike replacement during the strike was laid off. The Respondent refused to lay off strike replace- ments in order to provide employment for strikers. The Regional Director and the Charging Party agreed to this despite their contention that the strike was an unfair labor practice strike in order to achieve industrial stabil- ity getting the parties back to the bargaining table. As work became aailable all strikers on a preferential hiring list who had not quit, with the exception of An- derson and Preston were recalled according to their se- niority. 4. Post-settlement negotiations a. -ourteenth meeting-.ovember 2 In early October 1977, Nolan communicated with Pufahl concerning the arrangement of a collective-bar- gaining meeting. Pursuant to the discussion between the two individuals, the first negotiation meeting to be held following the settlement agreement was set for Novem- ber 2, 1977. Nolan was unable in his testimony to give any explanation as to the reason for his delay in request- ing an earlier resumption of collective bargaining. In any event the 14th meeting was held between the two bar- gaining committees and in the absence of the Federal mediator. However, the Union's bargaining team this time was headed by IUE Staff Coordinator Rutherford. Rutherford did not testify in this proceeding. Rather Nolan testified as to what occurred. Pursuant to Ruther- ford's request, Furst reviewed the past negotiations and took the position that the parties had previously come to an impasse. Furst stated that he had implemented the last wage increase that had been offered to the Union. He stated that subsequently the business of the Respondent had declined. He related the information that Pufahl had submitted to him that the business had taken a two-third downturn. The Union did not challenge that assertion. Nolan inquired as to the status of the profit-sharing plan, and he was informed that the Respondent had still maintained the profit-sharing plan and that the paychecks would proceed as scheduled. Early in this meeting Rutherford had stated that the Union's position with respect to bargaining was the same as it had been prior to the strike. Furst exclaimed that the only reason he was present at this meeting was be- cause the "law requires it." Furst admitted in his testimo- ny that he made that statement and explained that he harbored resentment towards alleged misconduct on the picket line. However he did not explain that statement to Rutherford who Responded that the law required good- faith bargaining. It was at this point that Furst stated that the Union and the Respondent had reached an impasse on 30 bargaining issues. Furst explained that the Re- spondent's position on economics would change because of changes in the business, that is, the downturn in busi- ness. The discussion turned to the superseniority clause for union representatives on which prior agreement had been reached. The Respondent took the position that it did not view the superseniority clause as having applica- bility to persons on the preferential rehire list; i.e., the Respondent would not agree that should a contract be agreed on a person on the preferential rehire list could bump a strike replacement by virtue of a subsequently agreed contract. The Union requested that the Company prepare a total contract proposal which the Company would be prepared to sign assuming that the Union agreed to it. Rutherford asked when such a proposal could be made available to it and was told that it could be presented on November 17. It should be noted that 375 DIECISI()NS OF NATIONAL LABOR RELATIONS BOARD nowhere at this meeting, or previously, did the Union challenge the assertion of Furst that an impasse had been reached on enumerable contractual issues. There is no explicit statement that the Union would be willing to make any concessions from its prestrike position. The discussion turned to the grievance procedure. Pufahl raised an objection to the prospect of having a nonrecalled striker act in the capacity of a union repre- sentative, i.e., steward, etc., in the grievance procedure and asserted that the function would be more proper to an actively employed person. The Union retorted that it had complete freedom to designate its representatives. According to Nolan's direct testimony, Furst responded that the Respondent would meet at the third step of the grievance procedure with whomever the Union designat- ed. On cross-examination, Nolan testified that Furst took the position that he did not wish to meet at the third step of the grievance procedure with an unrecalled employee on company property, but that in any event Furst there- after agreed to meet at the third step of the grievance procedure with any union representative without qualifi- cation as to where it would meet or with whom it would meet. Rutherford asked the Respondent to state its position with respect to the union-security clause. Furst respond- ed that the parties had reached an impasse. He took the position that the Respondent was opposed to a union shop and cited a "New York Times" article that had ref- erence to a national poll and that indicated public senti- ment opposed to union shops. Additionally, Furst cited the tally of ballots which of course revealed the substan- tial number of votes against representation by the Union. Accordingly, the Respondent's position as against a union shop was that it was opposed. With respect to checkoff it repeated its position that the checkoff was considered by it to be a cost item and subject to a trade off on economics. Concededly the Union made no fur- ther statements concerning its position with respect to union security. That is to say the Union gave no indica- tion that it would be willing to accept anything less than a full union-shop-contract provision nor advanced any arguments on behalf of a union shop. Additionally among the proposals reviewed by Furst for the benefit of Rutherford, Furst pointed out that with respect to the grievance procedure the Respondent's modified position was that it would agree to pay employees with respect to time spent in step one but not step two or three. The meeting was rather short. Having commenced at 2 p.m., it ended at 3:10 p.m. b. Fifteenth meeting-November 17, 1977 Pursuant to mutual agreement, the negotiating teams again met on November 17. In accordance with the Union's request, Furst presented the Union with a com- plete written contract proposal which it was ready to ex- ecute at that time. Furst stated that the contract was sub- stantially the same as its prior proposed contract with some modifications. Furst explained that the Respondent was unwilling to accord superseniority rights to employ- ees who were laid off at the time of the execution of the contract. The contract provided for a continuation of the profit-sharing plan. With respect to the annual bonus the Respondent proposed a 5-cent-per-hour buy back to be added to the wage rates. With respect to the profit-sharing plan Nolan testified that he stated that many employees desired to submit many questions to Pufahl with respect to the profit-shar- ing plan, but that Pufahl rather briskly said that Nolan ought to consult his own attorney. \W'ith respect to the profit-sharing plan of which the Union had received a copy, Nolan failed to testify just what specific questions, if any, he wanted to present to Pufahl at that meeting. It should be noted that in an earlier negotiation meeting Pufahl explained the profit-sharing plan in detail. Finally the contract had a proposed expiration date of March 1, 1978. Nolan expressed surprise at the short term of the contract. " Nolan testified that he asked an explanation of why the Respondent was now offering such a short-term contract and that Furst merely re- sponded that March 1 was the historic date of past con- tract expirations. Nolan made much of the fact that Re- spondent earlier in negotiations in regarding arguments as to retroactivity remarked that there was nothing sig- nificant about March 1. However, the context of the ear- lier discussion was clearly different in that such discus- sion did involve retroactivity of the agreed contract. In any event Nolan's testimony is not corroborated by Mos- shamer. Mosshamer, on direct examination, corroborated Nolan to the extent that reference was made by Furst to the March 1, historical expiration date. However on cross-examination Mosshamer corroborated Furst's testi- mony that Furst explained that the reason for the short terminal date was the expectancy in the coal industry of a strike in February. Thus, I credit Furst who testified that the basis that he advanced to Nolan for the short term of the contract was the expectancy of an in- dustrywide strike, and the unknowing impact it would have on the profits of the Respondent of whose products 90 percent were tied directly to the coal industry. It was Furst's position that although the contract had a terminal date of 4 months, the parties would be in a position to commence bargaining for a long-term contract within 60 or 70 days. At that point the Respondent would be in a better position to evaluate its immediate economic situa- tion and its ability to commit itself to future pay raises. Furst pointed out that the Respondent had in April insti- tuted the last wage offer of 25 cents per hour that it had offered to the Union and that he was not about to nego- tiate another wage increase above and beyond the one that had been granted. Despite Nolan's surprise at the short term of the proposed contract the Union did not reject the proposal. The Union directed its attention to an apparent 5-cent error in the computation of the wage rates and requested that the Respondent check its calculations and make ad- ditional corrections. In the meantime the Union suggest- ed that on receipt of subsequent information as to the ad- " In iew of the short duration (of the contract proposed, the contract itself incorporated only one additional guaranteed holiday, that of the Friday after Thanksgiving here is no dispute that the Respondent · would offer he additional guaranteed Christmas Eve and New Year's Eve ill the second and third years, assuming that a longer contract was negotiated. 37h I)EISTER CONCEN'IRATOR COMPANY justment in the apparent 5-cent calculation, that the Union would at that time "respond" to the November 2 contract proposal. The Respondent did not give any no- tification to the Union that it was about to implement any action with respect to any of its economic proposals. During the course of the meeting. Nolan had inquired as to whether laid-off employees would be beneficiaries of the allocation of the share of profits forthcoming. Pufahl responded that there was only a certain amount of profits that would be distributed and would he divided up among the employees, and that if it were to be divid- ed up among all laid-off employees, i.e.. those who were on a preferential rehire list. then the amount of profits for each employee would he diminished. However. Furst stated that with respect to the Respondent, it would not be an added cost because the profit share was a fixed economic cost to the Respondent regardless of the number of employees who participated in the distribu- tion. Furst stated that he was not certain whether or not there would be any problem under the recent Federal legislation concerning employee retirement and pension funds. That is to say, he was uncertain as to the legality of including employees not actively employed by the Re- spondent. The Union apparently did not discuss the matter further. The meeting commenced at 5 p.m. and ended at 6:45 p.m. 2 a. Request fir resumption of bargaining The Respondent's last contract offer Uwas irtually the same as the one preceding it with the exception of the modifications previously mentioned. On or about No- vember 30, the Union received the corrected wage schedule. The Union took no further action until by letter to Pufahl, dated December 20, it stated the follow- ing: Dear Mr. Pufahl: The Union has studied the Company's contract proposal which was presented during our last bar- gaining session on November 17, 1977. As you are aware such study was unable to be completed by the Union until it received a correct copy of the wage rates and progression schedule (Exh. A) which was presented inaccurately in your proposal on November 17. The Union has now been able to review your proposal in its entirety since receipt of the revised Exhibit A on November 30. Accordingly, the Union is now prepared to resume bargaining and is suggesting our next meet- ing with you be set just after the first of the year. Please advise what date would be satisfactory to the Company. Although the letter did not indicate either approval or disapproval of the Respondent's last contract offer, Nolan testified that he would not have agreed to the du- ration of the contract; the wage schedule; the elimination Z2 In the spring of 1977, indeed an indutsir widc coal stIrke did take place of the bonus: the failure to include improvements in group insurance; the failure to provide more than eight holidays; the vacation schedule: and the vacation pay. In summary Nolan testified that he 'as opposed to the eco- nomic substance of the proposed contract regardless of the duration of the contract. Nolan further detailed the areas where the parties were still apart, on and after Jan- uary 17. Also unacceptable to the linion was the griev- ance procedure. The Union ould have accepted the grievance procedure as proposed by the Respondent and would have waived its strike option if it had received agreement on other issues. However, the Union was ada- mantly opposed to Respondent's proposal of processing grievances in step 2 and, i.e., on nonwork time. The Union did not at any of the bargaining sessions explicitly indicate to the Respondent that it vwould be willing to forgo the strike option at the third stage of the grie\ ance procedure. With respect to acations, the Union was op- posed to the amount and method of vacations as pro- posed by the Respondent despite the fact that the Re- spondent utilized the method of calculation as one of the alternative methods pre iously suggested by the Union. The Union was opposed to the Respondent's proposal that funeral leave be limited to a certain number of rela- tives Further. the Union was opposed to the Respond- ent's proposal with respect to the eligibility provisions as to holidays; the Respondent's proposal for departmental and plantwide seniority accumulation ith respect to the circumstances for acquiring same the health and safety provision regarding the deletion of a precise amount of payment for prescription lenses: the group insurance and surgical coverage which w*as not improved from the past coverage; the personal illness and injury leave provision as to the duration of insurance coverage; the lack of a proviso for workmen's compensation; the wage rates; the distribution of hams with respect to the failure of clarifi- cation of the receipt of the same by laid-off employees the profit-sharing plan which had been reinstated in the Employer's most recent proposal and w hich had never been opposed by the Union but which without explana- tion Nolan testified the Union was still dissatisfied; the fellowship club with respect to the condition as to the profitability of the Company's operation of which the Union felt it was unable to determine whether or not the Respondent's operations were profitable; the lunch and locker room facility issue which Nolan testified he was not certain whether the Respondent would continue to adhere to its side agreement to provide same after the ex- piration of the limited contract that is to say within the 3 years previously promised; and finally the failure to in- clude a union shop. Thus the 3-1/2-months term of the contract was only one of many areas which the Union was not in agreement with the Respondent's proposal. Nolan testified that he was well aware that the parties would have had 70 days in which to engage in negotia- tions for a longer term contract. The Union's continued specific objections to the Re- spondent's proposals, however, were never explicated at the May 10 meeting or thereafter, as the parties never met again. I)ECtISI()NS ()1 NAII ()NAI. IAIt()OR RILA.l IONS II()ARI) 5. Failure to grant extra holidays at Christmas E ve and New Year's Eve 1977 O()n or about November 2, following the November 2 negotiations, Pufahl posted or othlerwise distributed a notice to employees. ((iC. xh. 1.) In that notice he made reference to the union and indicated to the eim- ployees that the Respondent continued to meet with the Union as required by law, even though it doubted the Union's majority status inasmuch as "less than one year has passed since the election date." Secondly, there is a reference to a handout that the employees had received. That particular handout was not adduced into evidence. In any event, l'ufahl set forth an explanation as to a pur- ported misleading statemenit in the handout. Pufahl told the employees the following: The law will not (at this time) allow the cornpaniy to take arty one-sided action regarding vacations, holidays, etc. hat would be an unfair LAI()R practice. The IUt knows this. Therefore, if the comnpany wanted to give you 3 extra holidays at Christmas. New Years anld Thanksgiving as they have in most past years, we are precluded from doing so. We are stuck with the last contract offer made April 13, 1977. The IUE is aware of this fact. A copy of the Holiday Article is attached. The notice advised the employees that the profit-shar- ing statement would be issued during the week, and then made reference to the amount of time estimated by Nolan that various negotiating members spent in discus- sion; i.e., "said nothing" or "said little," etc. 'The notice finally concluded with a statement that Thursday arid Friday of Thanksgiving week would be paid holidays. The complaint does not allege that the failure to grant an extra holiday at Christmas 1977 and New Year's Day 1978 constituted a violation of Section 8(a)(5) of the Act. Rather the complaint alleges such conduct constituted discrimination because of employees' union activity. The General Counsel argues in his brief that, in effect, the Respondent told the employees that they would not be receiving the extra holiday because the employees have selected the Union as their representative for purposes of collective bargaining. Such characterization is not accu- rate. The Respondent had taken the position that it did not grant the extra Christmas and New Year's holiday because an impasse had been reached in bargaining. The message Pufahl had delivered to the employees therefore was that they were not being punished because the em- ployees were represented by the Union but rather that they would not receive their holiday pay because that was the last offer that the Respondent had made to the Union at the bargaining table. Whether or not Pufahl was correct in concluding that an impasse had reached and whether he accurately rep- resented to employees that the employer was bound to and obliged by law to implement its most recent contract proposal prior to impasse is related to the issue of Re- spondent's good-faith bargaining. 6. timployce pettions ()n August 16 Pu'ahl rccived petition signed by 27 employees, which stated: We tice undersigned elployccs of Deister Concerl- Iractor Co., Inc., request that the Company rccog- nize the [)eister Concenilractor Co., Employees' Shop Committee as representing the majority of the Company's employees. The Respondent has taken the position that it had nothing to do with the instigation of such petition. I'hat matter will be discussed elsewhere. ()n January 6, 1978, l'uhahl reccixced a petition signed hy 17 enmployees including the union stewards wshich set forth the following: We the undersigned employees of the l)eister Con- centractor Company are concerned over some of the benefits previously granted. The holidays are al- ready passed. laving ito other ay to express our opinion, we present this petition to request that the Compariy grant the usual bonus as soon as possible. Pufahl consulted with urst who suggested the filing of a representation petition by the Employer. Therefore on January 13, 1978, the Respotideit filed a petition for representation in Case 25 RM 447. Attached thereto Asas a January I() employee petition, sv hich also requested representation by the shop conmiiltec. 7. Janluary 13 telephone corversation ()O Januarv 13, 1978, utahli communicated with Nolan by telephone Pufahl told Nolan that it was the Respondent's psitiorn that it desired to pay the annual shop bonus which ordinarily is paid shortly after the Christmnas season . P'ufahl inquired of Nolan as to wheth- er the Union had any objection and Nolan responded that the Union was in agreement that it ought to be paid. However, according to Nolan, he told Pufahl that the parties ought to meet arid discuss the bonus arid reduce their agreement to a written form. Nolan testified that he took this position in light of the Respondent's past posi- tion in negotiations in favor of eliminating the shop bonus. According to Nolan he asked Pufahl to get back to him with respect to arranging a meeting. But Pufahl responded that he did not "know about a meeting" inas- much as he was scheduled to he out of his office for the next 2 weeks. It is unclear as to what Nolan expected to reduce to writing since Pufahl was merely requesting the continuation of the Employer's past practice with respect to granting bonuses, and Nolan testified that he agreed that such should be continued in the same mode and manner as it had taken place in the past. According to Nolan, there was no suggestion by him that the parties discuss anything else at the suggested meeting. Accord- ing to Nolan the conversation ended on the note that Nolan requested that Pufahl get back to him after check- ing with Furst as to an available meeting with respect to the bonus. 378 I)EISIIFR C()NCENFRATOR CO)M'ANY Mosshamer, who was secretly listening, on an exten- sion phone, testified that Nolan said that he had nothing against the payment of a bonus, but that he would like to sit down and work out all agreement with respect to it and that at that point Pufahl stated that he would be out of town. Mosshamer did not testify that Nolan told Pufahl to contact Furst and thereafter communicate again with Nolan. Despite the passage of the time after the Union's December 20 letter, Nolan, according to his testimony made no allusion in his conversation with re- spect to the scheduling of a contract negotiation meeting. According to the testimony of Pufahl, Nolan stated that the Union did object to the payment of the shop bonus and then immediately stated that "he and l'ufahl ought to get together and meet and discuss all kinds of thing!;." According to Puflhl, he told Nolan that he was going to proceed to implement the shop bonus in anlly event. I credit the testimony of Nolan and Mosshamer that Nolan requested a meeting to discuss the continu- ation of the shop bonus and its memorialization in writ- ten form. Had Nolan requested a meeting to discuss other matters such reference would undoubtedly have been with respect to continued negotiations and would have been much more explicit. I, therefore. conclude that it is unlikely that Nolan would have made such an obscure reference to a meeting for other purposes: that in consequence of the telephone conversation the Re- spondent continued its past practice of paying the annual shop bonus; and that the Union did not make a specific request to schedule any negotiation meetings. Thus, as of January 16 we have in a state of suspen- sion the Union's almost month old letter suggesting that the parties resume bargaining and that the "next meeting . be set just after the first of the year." At no point had the Union indicated explicitly that it was not willing to move from its prestrike position. Following the Janu- ary 16 conversation, Pufahl left the plant for a vacation of a 2-week period of time. Prior to his return the Union filed the unfair labor practice charge in Case 25-CA- 9580, which blocked the processing of the RM petition previously filed by the Respondent. Pufahl testified that he never did respond to the Union's December 20 letter because of the intervention of the holiday season and the fact that the letter suggest- ed that after the first day of the year a meeting be set. Pufahl testified that as of that time he entertained a doubt in his mind as to the majority status of the Union. The Respondent, however, has taken the position in its brief that it did not fail and refuse to recognize and bar- gain with the Union. In its brief the Respondent con- tends that it continued its recognition of the Union as evidenced by Pufahl's initiation of a telephone call to Nolan where, because of the employee petition in favor of restoring the shop bonus, the Respondent felt it neces- sary to obtain Nolan's agreement to, in effect, continue its past practice of paying the shop bonus which would amount to a deviation from its last contract offer. The Respondent contends that Pufahl's last communication with Nolan gave him notice that Pufahl would not be available because of an end of the year vacation until after January 30, and that this constituted a "open invita- tion" for the Union to make further contacts with re- spect to resuming negotiations of the contract. The Re- spondent argues that the Union did not thereafter accede to that invitation. Instead the Union filed an unfair labor practice charge which "blocked" the Respondent's peti- tion for a representation election. C. .4leged Respondent Invtigation of a Petition on behalf of the Employees' Shop Con mittee- 8(a) (2J Allegations The General Counsel argues that the Respondent's po- sition with respect to a short-term contract and its resto- ration of the employees' shop bonus was timed to coin- cide with a petition on behalf of the restoration of repre- sentation by shop employees' committee which the Re- spondent instigated and abetted. The General Counsel's case in support ot the alleged 8(a)(2) violation is pre- mised upon the testimony of employee Charles Schnobel. Schnobel was first employed by the Respondent in 1942 and worked thereafter until 1957. He terminated his employment and commenced reemployment in 1965 on a part-time basis until June 1977, when he retired from his other full-time employment as a police officer. His em- ployment at the Respondent was in the structural steel department which is headed by Working Foreman Joseph Anderson. In the last 3 or 4 months of 1977, he performed the duties of a leadman and was considered to be a valued employee. In early 1978 he resigned as a leadman. Schnobel was not a union member. During the first 2 months of the picketing by the Union, he did not cross the picket line. However, in June he returned to work prior to the end of the strike and crossed the picket line. Schnobel testified that commencing in late August or early September and through late November 1977, he en- gaged in conversations with Foreman Matson of the maintenance department. Superintendent Davis, Pufahl, and to a minor extent his own foreman, Anderson. If Schnobel were to be credited in his testimony concern- ing conversations with these individuals and, assuming that I were to find that Matson and Anderson are super- visors within the meaning of the Act, it would appear that the Respondent instructed Schnobel to circulate a decertification petition on one occasion in late August or early September, which proved to be premature, and at- tempted to instigate his circulation of a second petition in late November on behalf of the shop committee, which second petition he did not agree to distribute. Further- more in these purported conversations, Pufahl assured him that the Respondent was obliged to submit a pro- posed contract to the Union, but that the Respondent fully expected the Union to reject such proposal on the grounds that it contained matter which "no self-respect- ing [union] could accept." Schnobel's testimony was con- tradicted by Matson, Anderson. Davis, and Pufahl. These witnesses admitted to certain conversations with Schnobel on or about that period of time, but their ver- sions contradicted the substance of Schnobel's version as to whether the Respondent's agents ordered or instigated the filing of the petition, and as to Pufahl's alleged refer- ence to the concurrent contractual negotiations. 379 I)[CISIO()NS ()F NA'I()NAI. I.ABO)R REL.ATIONS 1()ARI) The General Counsel argues that Schnoble ought to be credited on the grounds that as a nonunion member who crossed the picket line and who at the time of the hear- ing was employed by the Respondent and whose job tenure conceivably might be jeopardized by his testimo- ny could have had no motivation to testify against the Respondent. Moreover, Schnobel's testimony. according to the General Counsel, gives seeming explanation to the Respondent's concurrent activity at the bargaining table, and seems to fit into a pattern. I have carefully consid- ered the General Counsel's advanced reasons and argu- ments in support of a favorable credibility finding. How- ever, after a review of Schnobel's testimony and a review of his demeanor I find him neither a credible nor reliable witness. Schnobel's testimony on direct examination, cross-ex- amination, and in his pretrial affidavit, which is dated September 6, 1978, is replete with inconsistencies. On direct examination, he testified that in late August or early September Matson provided him with a prepared petition on behalf of the shop committee. On cross-exam- ination he testified that this occurred on August 16. ()n direct examination he testified, in a cryptic coiclusionary fashion, that he and Matson somehow got involved in a conversation and that the conversation turned to the ub- ject of the committee and Matson told them that it would be a good idea to circulate a petition; that the cir- culation of such a petition had been "cleared" by the Re- spondent's attorney and the "labor board", andt that em- ployees could obtain another election. O()n cross-examina- tion, Schnobel admitted that he could not recall who started the conversation. He admitted that he had har- bored an antipathy toward Matson for many years and that his feelings were well known to others, including Matson. Although he testified that he had expressed an opinion to other employees including Matson, that the shop committee ought to be reinstated, he denied asking Matson to prepare a petition. Yet he could not recall how he got involved in a conversation with a person with whom he had manifested antipathy for many years. There is nothing in Schnobel's testimony that would sug- gest why Matson would approach Schnobel whom he did not supervise for this task in view of Matson's aware- ness of Schnobel's hostility toward him. On direct examination Schnobel testified that later that same day Matson gave him a petition to circulate on a clip board containing the appropriate language, and that thereafter Schnobel went to Davis and asked him if he were to distribute the petition on company time or on his own time and that Davis instructed him to circulate it on company time which he did. On cross-examination he was reminded that his pretrial affidavit contained no ref- erence to this conversation with Davis nor a reference that Davis instructed him to circulate the petition. He ex- plained this omission by testifying: "I just thought that was something that had to be put in there to complete my testimony."' 3 On direct examination Schnobel testi- fied that after a day and a half he returned the petition, which had been executed by the employees, to Davis ,. II should he noted that the affidavit was given in close proximity ito the onset of this hearing and not shortly after the filing of he unfir labor practice charge. who told him that he would forward the petition to Pufahl. On cross-examination he testified that after he had obtained the signatures of 27 employees he took the petition to Davis and explained to Davis that the paper he was handing him "was a petition." And "the fellows had signed it in order to get the shop committee in or to have an election," and that Davis had responded that he would forward the petition to Pufahl. Furthermore, Schnobel testified that had he not explained the petition to I)avis at that point, Davis would otherwise have not known what it was. On direct examination he testified that on giving the petition to Davis Davis summoned him to Pufahl's office where he met Pufahl alone. Schnobel's testimony on direct examination, cross-ex- amination, and in his affidavit, with respect to subsequent meetings with Pufahl, was inconsistent as to the number of meetings, the substance of the meetings, and the dates of the meetings. Some of it was highly improbable, i.e., that Pufahl made references to an event at a point in time before the event occurred, e.g., the Respondent's agreement to provide the Union with a contract by No- vember 17; or that Pufahl would have so foolishly and baldly confided in hue erba that the Respondent would tender a contract that "no self- respecting union would accept." Finally, Schnobel testified that during the same week of his final conversation with Pufahl he engaged in a conversation in the plant with his foreman, Anderson, at the foreman's desk in the basement while they were alone. According to Schnobel, Anderson informed him that there would be no Christmas bonus but that Ander- son "believed" that there would be a bonus if the peti- tion was circulated for the shop committee. Schnobel purportedly accused him of blackmail and refused to cir- culate the petition. According to Schnobel, a few days later employee Bill Huff of the maintenance department was seen circulating a petition, and thereafter asked Schnobel whether he would sign a petition. Schnobel in- dicated that he would sign a petition if the majority of the employees signed it. On that same day, Schnobel tes- tified that he engaged in a conversation with Matson in the welding department in the presence of his son, David Schnobel, and two other welders, all of whom are no longer employed by the Respondent and did not testify at the hearing. According to Schnobel, Matson told him that the employees should sign the petition and that "things would change" if the employees obtain represen- tation by the committee. Other employees purportedly asked Schnobel whether he would sign the petition, and he responded that he would not unless the Respondent granted a shop bonus. At that point Matson accused Schnobel of engaging in "blackmail." Whereupon em- ployee Huff walked up to him and demonstrated that the majority of the employees had signed the petition. Thereupon, Schnobel also signed the petition. Schnobel had no idea of who prepared Huffs petition. The peti- tion did not mention a shop bonus. A separate bonus pe- tition was circulated by another employee. According to Schnobel, that petition had been circulated prior to Huffs petition sometime in early' December. Employee William Huff did not testify. 3 0 I)AtISTER C()NCENTRATOR C(f)MI'ANY Schnobel's testimony, particularly with respect to meetings with Pufahl. was inconsistent and shifting. Al- though it is true that in his testimony at the hearing Schnobel was consistent with respect to the fact that there were four meetings with Pufahl this was inconsist- ent with the testimony of his relatively recent pretrial af- fidavit of September 1978. On direct examination he came up with a second conversation in October which provided an opportunity for him to fill in the gaps left by his failure to refer to the subject matter of the em- ployee petition as alluded to in his affidavit which re- ferred to only one October meeting. However, on cross- examination when the stark improbability of a reference to a proposed company contract at an October meeting became apparent the witness then shifted and testified that there were two meetings in November and only one in October. That version also contradicted his pretrial af- fidavit. Schnobel's demeanor was alternately confused, uncer- tain, hesitant, and hostile. The General Counsel suggests that any nervousness displayed by the witness ought to be attributed to understandable fear of testifying in the presence of the Respondent's representative Pufahl who was present in the hearing room. I do not agree. Schno- bel, a retired police officer, did not display any nervous- ness or tension when assuming the witness stand. He ini- tially launched into his testimony with assuredness and fluency. Defiantly, with full composure, he proceeded to testify as to the meeting with Matson and the first two meetings with Pufahl. When he insisted that there was no reference to the employees' shop committee petition at a meeting with Pufahl in October his self-confidence disintegrated. The witness became tense and tremulous. His discomfort appeared to come not from the presence of Pufahl in the hearing room, or circumstances which had existed at the outset of his testimony, but rather was caused by his inability to respond to the apparent satis- faction of counsel for the General Counsel, who attempt- ed to elicit from him some testimony as to further refer- ences by Pufahl to the petition at that meeting (as he had testified in his pretrial affidavit). At that point, and there- after, when he created a second meeting in October, not referred to in his affidavit, and then in cross-examination created a second meeting in November, not referred to in his affidavit, his demeanor and uncertainty was such as to preclude me from having any confidence in his ability to recall and testify with any degree of accuracy. Finally, I do not perceive the witness as one having a complete and unbiased position such as would constrain me to credit his inconsistent and disconcerting testimony. The witness admitted to a long abiding hostility to Matson which had been expressed to others and of which Matson was well aware. It is questionable wheth- er Matson would have selected him as the Respondent's vehicle for the circulation of a decertification petition. The improbabilities of his October meetings during the initial phase of his testimony, wherein he referred to events not yet transpired, have been noted above. Logi- cal incongruities that were resolved by the creation of a second meeting in November appeared to have been tes- tified to only after a realization by the witness of patent improbabilities. At all points in his cross-examination, the wvitness manifested a hostility and a confusion which was unwarranted in light of a cross-examination which, al- though penetrating and dogged. was rendered without aggressiveness. Furthermore, the witness had been the subject of a reprimand by the Respondent in April 1978. (This will be discussed in more detail with respect to an- other allegation of the complaint.) Although counsel for the General Counsel makes light of Pufahl's testimony concerning the witness' resignation of his leadman posi- tion and his acquisition of a reclusive and antisocial be- havior habits manifested toward managerial and supervi- sory personnel, e.g., weeping seizures, such testimony was left uncontradicted in the record. Accordingly, I conclude that the witness was not the purportedly neu- tral and unbiased one as contended by the General Counsel, but, rather, did harbor a deep seated antipathy toward the Respondent. In view of my conclusion as to the unreliability of Schnobel as a witness and in view of the coherent, con- sistent testimony of witnesses Matson, Davis, Pufahl. and Anderson wJich was rendered in a demeanor of certi- tude, confidence, and a spontaneity indicative of candor, I credit their testimony wherever it conflicts with that of Schnobel. Accordingly, I find that the following events transpired in the fall of 1977. Several times during August 1977, Schnobel ap- proached Matson. Schnobel suggested that a petition should be circulated on behalf of reinstating the employ- ees' shop committee. He asked Matson to draft the peti- tion because Matson had had previous employee shop committee experience. Matson served on the shop com- mittee's negotiating committee. (Matson did not assume the duties of a foreman until September 1976.) Matson told Schnobel that he did not wish to be involved and that in any event a petition would be premature. Matson told Schnobel that the Union was the representative of the employees, and he suggested that Schnobel forgo the idea. Subsequently, within a few days, Schnobel again approached Matson with a request for assistance in draft- ing a petition. Matson deferred, claiming he was too busy. Schnobel contacted him again and suggested that Matson write an introductory paragraph to a petition for reinstatement of the shop committee. Finally Matson agreed and drafted an introductory paragraph. He denied initiating the idea of the petition and he denied partici- pating in the solicitation of signatures of the petition. Indeed Schnobel's own testimony indicates that he did not disclose to fellow employees any of his discussion with Matson prior to the solicitation of the August 16 petition. Matson did not engage in any conversations with the Respondent's attorney nor make any representa- tions to any employees concerning the Respondent attor- ney's opinions concerning the petition and the Board. Schnobel gave Davis the petition, dated August 16, on or about August 18 about breaktime in Davis' office. Schnobel presented the petition to Davis as a matter that he requested the Respondent to consider. Davis merely responded that he would take the petition to Pufahl. Davis did not see the petition before this time and did not converse with Schnobel with respect to its prepara- tion or its circulation. Schnobel did not ask Davis for 381 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD prior permission to circulate the petition. Thereafter in early September 1977, Schnobel engaged in another con- versation with Davis. Schnobel went to Davis' office and told him that several of the "older' employees who were not members of the Union were in a "no man's land," and they wanted to know what they can do to obtain representation. Davis responded that the employees were all represented by the Union regardless of actual mem- bership in the Union. Schnobel was not satisfied and re- quested a meeting with Pufahl. Subsequently Davis con- veyed Schnobel's request to Pufahl and suggested that Pufahl meet with them. Pufahl had on occasions in the past met with employees concerning their individual problems. Davis did tell Pufahl that Schnobel desired in- formation with respect to representation. Subsequently Pufahl on the same date met with Schnobel in the con- ference room in the plant office area. The conversation between Schnobel and Pufahl in the conference room occurred late in the afternoon. Schno- bel indicated that he was concerned about his future em- ployment and what would happen to him s an employ- ee. He specifically asked about representation by the Union. Pufahl responded that Schnobel was represented by the Union. Schnobel responded that he was not a member of the Union and he was bothered by the fact that he might have to become a member. He indicated that he wanted to do something about it. He did not indi- cate anything specific. Pufahl did not advise him as to any specifics. Pufahl did tell him that all employees were represented by the Union including himself. No refer- ence was made to a petition at that time. A subsequent meeting was arranged in similar fashion between Pufahl and Schnobel in mid-November. Davis had told Pufahl that Schnobel had been an excellent em- ployee and was presently disturbed. A week or so prior to that he had been promoted to leadman status. He had received a raise of 10 cents per hour. However, Davis told Pufahl that Schnobel had made certain inquiries of which Davis was not certain. Prior to that Schnobel had approached Davis in Davis' office and asked him what could be done to gain representation for the employee shop committee. Davis responded that he was not knowledgeable enough to give an appropriate answer, and promised to set up a second meeting with Pufahl. Accordingly, Pufahl again met with Schnobel in the afternoon in mid-November. Pufahl told Schnobel that he was represented by the Union and that a petition at that time would be futile. Schnobel inquired about whether the Respondent was going to provide lunchroom and locker facilities. Pufahl responded that he had agreed with the Union to provide such facilities within 18 months after the contractual agreement. Pufahl explained to Schnobel that Attorney Furst had told Pufahl that no new election could be con- ducted until I year and I day after the certification of the Union in December 1976, and therefore a petition would be unavailing. Schnobel expressed disappointment and appeared upset. Schnobel did not request Pufahl to make any further contact with Furst. The meeting lasted 5 to 10 minutes, and Schnobel left. A third meeting transpired between Pufahl and Schno- bel and was held in mid-November. Schnobel referred to Pufahl's past comments about the futility and untimeli- ness of a representation petition on behalf of the shop committee. He again raised the question of initiating the petition at that time. He stated that he wished to do something. Pufahl again told them that the petition would be premature. Schnobel again said that he was upset and that the "old timers" were also upset. This last meeting had been set up pursuant to Schnobel's request of Davis early in the day in Davis' office wherein Schno- bel requested assistance of Davis in the preparation of a petition. Davis had responded that that was not his "bai- liwick," and he could not help Schnobel but responded to Schnobel's request for a meeting with Pufahl. At no time did Davis arrange a meeting between Schnobel and Pufahl at the initiation of Pufahl. With respect to the purported conversation between Foreman Anderson and Schnobel, Anderson denied having any conversation with Schnobel concerning the production bonus. Although Anderson was not as fluent and confident a witness as Matson, Pufahl, and to a lesser extent Davis, I found his testimony overall, and his demeanor in general, to be more convincing than that of Schnobel. I therefore credit his denial. Finally, with re- spect to the conversation that Schnobel had engaged in with Matson, in the presence of three other employees, as at the time that employee William Huff was circulat- ing the petition, which was ultimately to be dated Janu- ary 10, Matson did not contradict Schnobel's uncorro- borated testimony. I therefore credit Schnobel that the conversation did occur.'4 However, in that conversation Schnobel testified, in very general terms, that Matson told the employees that they "ought to sign the petition, that things would change if we could get the shop com- mittee back in." He did not explain how things would change, nor made any explicit reference to a promise of any specific improvement or reward. In fact, when Schnobel suggested that he would sign the petition on condition that the Respondent reinstitute the annual bonus, Matson responded that Schnobel was resorting to "blackmail" against the Respondent; i.e., "well you're trying to blackmail the Company." Such a reaction seems to negate any implication in Matson's foregoing remark that the Respondent had a preconceived intent to reinstate the shop bonus if the employees signed the peti- tion. In any event Schnobel signed the petition because a majority of the employees had signed it, and not because any explicit promise was made by Matson to reinstate the annual bonus. In view of this conduct by Matson, analysis must be made as to whether he occupied a supervisory position within the meaning of the Act. Matson held the position of foreman, or as he was characterized by the Respond- ent, "working foreman." There is no evidence that he had the authority to hire or fire employees or to effec- tively recommend their hiring or firing. The vast prepon- derance of his time was spent in physical labor. He per- formed maintenance duties in the plant with respect to repair and maintenance of machines, the boilers, and the grounds. He did these physical labors with the assistance 4 Several other emploees estified without contradiction that Matson encouraged them to sign the petition on other ccasions 382 DEISTER CONCENTRATOR COMPANY of two other employees. His daily chores were laid out for him pursuant to daily conversations with the plant supervisor, Davis. There is no evidence that he used in- dependent judgment and discretion in making assign- ments to employees in the maintenance department. The work of employees in the maintenance department was routine. New employees were trained by Matson, and, by virtue of his greater experience, he gave them instruc- tions on how to perform their jobs, and on occasion would tell an employee to redo a job. This occurred within the context of a training situation. One of Matson's assistants, Stephen Huff (not to be confused with employee William Huff or with Foreman Karl Huff) was engaged in the washing and cleaning of machines in preparation for repairs. He also obtained various materials such as gasoline for the forklift, and was known as a "go-for." He was still in the process of learning his work. Another employee D. Hudson com- menced to work in the maintenance department in 1973 and assisted Matson in making repairs and performing menial chores as the care of fire extinguishers and the maintenance of OSHA logs and other records. He also tended the boilers by loading coal, cleaning out clinkers, and preparation of chemicals necessary for the boiler water, which function was taught him by Matson, and which he performed on a routine basis. As Hudson ad- vanced and learned the techniques of operating tools, he also replaced lightbulbs, washed windows, replaced win- dowpanes, and assisted Matson in making repairs in 1976. About that time, and thereafter, he assisted in the mainte- nance and repairs of various lathes and radial drills. Matson's wages as a foreman were subject to the wages negotiated by the shop committee. He spent 85 percent of his time on the maintenance of machinery. Ten percent of his time was spent in maintaining records. There is very little evidence that Matson had any author- ity to affect the work status of his assistants. With re- spect to the warning notices maintained by the Respond- ent, a space for the foreman's signature appears thereon at the place designated for the person who prepared the warning. The warnings are countersigned by Davis. Matson was involved in only two disciplinary actions, with respect to verbal warnings. On one occasion when a certain assistant first started his employment, he had the habit of utilizing tools belonging to other employees. Matson informed Davis who ordered Matson to instruct that assistant to obtain his own tools. Davis accompanied Matson when Matson delivered this instruction to Hudson. On the second occasion an assistant appeared for work smelling of alcohol. Matson informed Davis and asked Davis whether he should insist that the assist- ant continue his work duties or whether he should be permitted to go home. Davis decided that the assistant should be permitted to go home. The assistant willingly complied with the suggestion as conveyed by Matson. On those occasions when his assistants asked for time off Matson consulted Davis, pursuant to Davis' outstand- ing instruction that he always wanted to be informed of such request. Matson always consulted Davis with re- spect to such request for time off and on occasions the employee was present with Matson when such requests were conveyed. All work performed by Matson and his assistants was checked periodically and daily by Davis. On one occasion Matson observed an employee in the carpentry shop transporting some of the Respondent's materials from the plant. Matson informed Davis and Davis proceeded to investigate the matter and Matson had no further involvement. Based on the record evidence there is insufficient basis for a conclusion that Matson exercised any of the statu- tory supervisory indicia on a discretionary basis suffi- ciently to render him a supervisor within the meaning of the Act. At the most he was a conduit for the instruc- tions of Davis. Any instructions as to the work per- formed by his assistants flowed from his superior knowl- edge, skill, and experience. The nature of work to be performed by his assistants was determined by the nature of repairs to be performed for that particular day, which in turn is determined on the judgment and decision of Davis. Matson has exercised no authority which palpably affected the work status of his two assistants. Under these circumstances, I conclude that he was not a super- visor within the meaning of the Act, at times material herein. In any event, had Matson exercised sufficient discre- tion to have rendered him a supervisor at the time of his conversation with Schnobel it is clear that his supervi- sory status would have obviously been at a very low line level. Moreover his conversation with Schnobel and other employees clearly indicates that he was expressing his own opinion as to the desirability of obtaining repre- sentation again by the shop committee. The General Counsel has adduced no other evidence of the Respondent's instigation or assistance of employ- ees' efforts to obtain representation by the shop commit- tee. I see no basis for counsel for the General Counsel's suggestion that I draw an adverse inference for the fail- ure of of the Respondent to adduce testimony from em- ployee William Huff. The Respondent did not adduce Huff's testimony but neither did counsel for the General Counsel, who has the burden of proof in this proceeding. It is Davis' uncontradicted and credible testimony that with respect to the petition signed by employees request- ing reinstitution of the annual bonus, that employee Pro- cise presented the petition to Davis who in turn present- ed it to Pufahl. Davis had no foreknowledge of the peti- tion nor its circulation and did not give permission for the circulation of the petition. The petition incidentally was signed on page 2 by Timothy Carboni, the Union's shop steward. With respect to the Huff petition, Davis testified that Huff presented the petition to him, and he escorted Huff to Pufahl, and that Huff stated to Pufahl that the employees desired representation by the shop committee, and Pufahl responded that he would investi- gate "the proper channels for hi[m]s." I conclude that the Respondent did not instigate or en- courage the Deister Concentractor Company, Inc., em- ployee shop committee petition. D. Schnobel's Reprimand On April 19, 1978, Schnobel was presented with a rep- rimand which was attached to his personnel file. The 383 I)ECISI)NS ()0 NATIONAL LAB()R RELATIONS H()ARD reprimand set forth three areas of complaint. The first stated that "on April 18 you concerned yourself [with] the health problems of a fellow employee and stated that the Company should send him home. Your conduct caused unrest among the company employees. Of late, you have been frequently guilty of similar misconduct." Secondly, it accused him of harassing the company' presi- dent. Thirdly, it alleged that he "repeatedly" concerned himself "in matters that are not within the realm of your responsibility." It stated that he had been an excellent employee but during his recent tenure he had exhibited a lack of emotional self-control and had been observed crying on several occasions . '' The reprimand instructed Schnobel that if he has a grievance he should file it through the "prescribed grievance procedure." The rep- rimand offered to grant him leave of absence to over- come "whatever problem is causing the striking change in your behavior." And concluded that "[t]he Company will not allow further disruptive activities by you." Pufahl and Davis testified in rather general and con- clusionary terms as to certain unspecified harassment of the company president by Schnobel. Essentially it is con- tended that Schnobel harangued the president and de- tained him in the plant. Schnobel's testimony of his con- versation with former President Stone is uncontradicted. Nothing in that incident as described by Schnobel's un- contradicted testimony suggests that the company presi- dent was harangued or harrassed in any manner. On February 20, 1978, Schnobel resigned from his position as leadman, "for personal reasons." This followed a period of reclusiveness and periods of open weeping by Schnobel in the plant. Essentially the reason that the reprimand was dictated and issued by Pufahl, according to Pufhal's own testimo- ny, was Schnobel's behavior on or about April 18. On or about that time, Schnobel became concerned with the health problems of a certain fellow employee worker whom it was suspected, for good cause, had either a social disease or possibly infectious hepatitis. Schnobel had protested to his supervisors that he and his cowork- ers not be compelled to work with the afflicted employ- ee in order to allay a potential health problem among his fellow employees. According to the uncontradicted testi- mony of Schnobel, he had talked to other employees concerning this situation, and they expressed their mutual concern. According to Pufahl, Plant Manager Davis had reported that Schnobel threatened to lead a walkout of employees unless the ailing coworker was sent home. That is the predominant reason for Pufahl's issuance of the reprimand. Davis was silent on this issue. Thus. Schnobel's version of the event is uncontradicted. I credit him and conclude that although he made a com- plaint concerning the Respondent's failure to segregate the coworkers, he did not threaten to lead a walkout to compel the afflicted employee to be sent home. The General Counsel at the hearing moved to amend the complaint to allege that the Respondent violated Sec- tion 8(a)(l) and (3) of the Act by reprimanding Schnobel because of his participation in concerted protected activi- ties, i.e., concertedly engaging in a complaint concerning "' Pufahl' tesilmony in this regard is uncontradclued mutual working conditions. The motion was made subse- quent to the full litigation of the incident. Accordingly I granted the motion. I am in accord with the General Counsel's position that by such conduct that the Re- spondent violated Section 8(a)(l) of the Act. Health con- ditions in the plant are manifestly a matter of mutual concern of employees. Schnobel, who in the absence of any disavowal by coworkers of his complaint, was en- gaged in a protected concerted activity in making his complaint. Akron General Medical Center, 232 NLRB 920, 927 (1977). At the time there was no contract that had been agreed to, and obviously there had been no grievance procedure in effect. There is no evidence in the record that Schnobel's activity created any disrup- tion of order in the plant other than some generalized testimony that his conduct was characterized by Davis' report to Pufahl as creating a "ruckus." Finally the right of employees to engage in concerted activities concern- ing the mutual welfare of coworkers is not conditioned on whether or not the employees' perception of the area of concern is accurate. .. L.R.B v. Washington Aluminum Co., 370 U.S. 9 (1962). Accordingly, I conclude that the issuance of the April 19 reprimand to Schnobel constitut- ed a violation of Section 8(a)(l) of the Act. I see no basis for a finding of an 8(a)(3) violation as there is an absence of any relationship of the Respondent's conduct to any union activity by Schnobel. E. Postsettlement Conduct by the Respondent Aff'cting Working Conditions 1. Holidays-vacations In addition to the Respondent's decision and imple- nientation of the decision to refuse to grant employees a holiday in whole or in part on Christmas Eve or New Year's Eve 1977, on or about Ma, 21, 1978, the Re- spondent changed the historical method of computing vacation pay by implementing the formula last proposed to the Union in the most recent contract proposal of No- vember 17, 1977; i.e. 2 percent of gross wages appearing on the W-2 form as was originally proposed by the Union in a prior union as one of two alternative meth- ods. The historical method of calculating the vacation pay was to take the gross pay earned by the employee, excluding the annual bonus, and divide it by the actual number of weeks worked. The General Counsel con- tends that the Respondent's conduct was discriminatorily motivated in that it adversely affected the striking em- ployees. That is to say had the old method been utilized, i.e., the division by the actual number of weeks worked, their vacation pay would necessarily have been higher because the gross figure would not have been diminished by virtue of their participation in a strike. The General Counsel also alleges that such conduct constituted a uni- lateral action and was also violative of Section 8(a)(5) of the Act. It is quite true that the natural consequence of such action was to put the employees who had engaged in the strike at an economic disadvantage, because of the neces- sary reduction in their gross pay. However, the Re- spondent's action was not something that it had con- 384 DEISTER C()NCENIRAITOR CO()MPANY trived subsequent to the employees engaging in the strike. The Union itself had suggested and proposed that the Respondent abandon its historical formula of calcu- lating vacation pay. In consequence, the Respondent. as early as March 1, 1977, proposed the 2-percent gross earnings formula pursuant to the Union's alternative pro- posals. That is to say it chose one of the two new meth- ods proposed by the Union. The Respondent consistently thereafter retained that proposal throughout negotiations to which there obviously was no specific objection by the Union. The Respondent therefore subsequent to the strike did nothing more than implement a contract pro- posal which was based in part on a prior proposal by the Union itself. It clearly formed part of its proposed eco- nomic package which encompassed among other things an increase in wages. Under such circumstances at no point prior to the strike did the Union complain nor could it logically complain of such proposed conduct as discriminatory. Accordingly, I cannot conclude that the Respondent was discriminatorily motivated by imple- menting its last contract proposal with respect to the for- mula on which vacation pay was calculated. The Re- spondent contends that it effectuated the change in for- mula after the parties were at an impasse in negotiations, and therefore such action did not constitute unilateral conduct. Whether or not an impasse existed of course de- pends on a conclusion as to whether or not bargaining in good faith had taken place subsequent to the settlement agreement. That issue will be discussed elsewhere. With respect to the allegation that the failure to grant the employees Christmas Eve and New Year's Eve 1977 as a vacation constituted discriminatory conduct viola- tive of Section 8(a)(3) of the Act, as indicated above, I do not interpret the Respondent's notice to employees subsequent to the November 2 negotiating meeting as having constituted a statement to the employees that they would not receive those holidays because of their support of the Union. Assuming that the Respondent had engaged in alleged violations of Section 8(a)( ) of the Act, as set forth in the complaint in the period preceed- ing the Union's certification, and recognizing that the Respondent conducted a vigorous campaign to prevent the Union's election, I still am unable to conclude that the Respondent was discriminatorily motivated by its conduct in December 1977. The Respondent's position, with respect to its economic package from the outset of negotiations, was that it would not grant a holiday in the contract for the day after Thanksgiving and for Christ- mas Eve and New Year's Eve. In return it made conces- sions; e.g., a wage increase. It subsequently modified its position during the course of negotiations. It subsequent- ly agreed to grant the day after Thanksgiving and that the Christmas Eve and New Year's Eve holiday would be included in the contract for the second and third year. It also raised its wage increase offer, and raised its offer on the pension and bonus buy back. The holiday propos- al was part of its economic position albeit that it depart- ed from its traditional practice. This position was not al- leged nor contended to have been motivated by bad faith, nor alleged to have been part of a course of bad- faith bargaining in the presettlement period. Indeed there was no argument that the Respondent's substantive posi- tions during negotiations other than the union-security clause, and the union steward's liability clause, constitut- ed evidence of bad faith at the bargaining table. The par- ties had negotiated and bargained at length concerning the extra holiday issue. An employer is not bound to retain all existing benefits and automatically incorporated them into a new collective-bargaining agreement, but in- stead it may trade off existing benefits during negotia- tions in return for other economic concessions such as wage increases. 4can Cable West. a Diviiion of A.lcan Aluninun Corporation, 214 NLRB 236,h 243 (1974): po- service Corporation, 203 NLRB 1180, 1189 (1973). It cannot be presumed that every economic proposal which is disadvantageous to the employees is the product of a discriminatory motivation merely because the contract negotiations were preceded by an aggressive, even un- lawful, campaign by an employer. Whatever had been the Respondent's past practice of granting extra holidays, its proposal to eliminate the New Year's Eve and Christ- mas Eve holidays during the first year of a 3-year con- tract was part of its consistent economic proposal and package. There is no allegation nor does the evidence disclose that the Respondent in the presettlement negoti- ations took a bargaining stance on economic issues based on discriminatory motivations or that the Respondent was motivated by vindictiveness rather than economic self interest. Indeed, the Union was willing to negotiate the elimination of past benefits, i.e., the bonus and profit- drawn plan, if the "price was right." Accordingly, I conclude that the failure to grant a Christmas Eve and New Year's Eve holiday in 1977 was not discriminatorily motivated. The Respondent contends that in December 1977, it was privileged on reaching a bargaining impasse with the Union to implement its most recent contract holiday pro- posal, i.e., that of November 17, which of course con- tained no Christmas Eve and New Year's Eve holiday. The complaint does not allege that such conduct consti- tuted unilateral conduct violative of Section 8(a)(5) of the Act. However, the manner in which the Respondent acted, as indicative of its attitude toward bargaining, will be discussed elsewhere. 2. January 1978 bonuses O()n or about January 13, 1978, the Respondent conced- edly did not pay the annual shop bonus to those employ- ees who had been on the preferential rehire list, but who had not been recalled to the active payroll as of that date. The amount of money provided by the Respondent for the annual bonus had in the past been determined by the Respondent's board of directors at the end of the year after an analysis by them of various factors includ- ing profits and sales, etc. Thus, the payment and amount of bonuses was a discretionary matter. Pufahl initially testified that the Respondent had not in the past paid bo- nuses to employees on laid-off status but that such occa- sions had been extremely rare in view of the fact that layoffs had been virtually unprecedented until the fall of 1976. He testified that those employees on layoff status in 1976. who continued to be on layoff status in January 1977, were not paid the shop bonus because of the Re- 385 DECISIONS OF NATIONAl. LABOR RELATIONS 13()ARD spondent's "policy." However, Pufahl retracted this testi- mony voluntarily and pursuant to a review of the Re- spondent's records, testified that employees on layoff status in 1977 did indeed receive a bonus apportioned to the work they had performed during 1976. His explana- tion as to why employees on the recall list pursuant to the settlement agreement in 1978 did not receive a bonus for work performed in 1977 was uncertain and general- ized. These employees, of course, were former striking employees, either economic or unfair labor practices strikers. Essentially, Pufahl testified that they did not re- ceive the bonus because they were, somehow in his view, disconnected from employment. In any event, he conceded that this was an unprecedented situation. There is some testimonial reference to the subject matter at the bargaining table. The complaint does not allege that the Respondent violated its obligation to bar- gain with the Union concerning the distribution of the 1978 bonus, but alleges only that it violated Section 8(a)(3) of the Act. I conclude that the foreclosure of employees on the preferential recall list from a portion of the 1978 bonus apportionable to their 1977 work, was inherently de- structive of employees' rights to engage in protected concerted and union activities. The employees on recall status in January 1978 were at the very least economic strikers who were not actively employed because they had engaged in protected activities, i.e., strike activity. They necessarily did not receive a 1978 bonus for work performed in 1977 because of that protected activity. In effect, they were treated as new employees with no ac- crued bonus privileges. Accordingly, I conclude that the Respondent violated Section 8(a)(3) of the Act by its failure to grant a bonus to the unrecalled economic strik- ers on January 13, 1978. Woodlawn Hospital, 233 NLRB 782, 794 (1977); compare: Borden, Inc., Chemical Division, 235 NLRB 982 (1978); and Crane Company, Deming Di- vision, 244 NLRB 264 (1979). 3. Discrimination against Carboni The complaint alleges that in August 1977, the Re- spondent failed and refused to promote employee Timo- thy Carboni and failed to grant him a wage increase be- cause of his union activities. Timothy Carboni was hired by the Respondent on April 29, 1976, as a laborer. As of January 9, 1979, his wage rate was $3.90 per hour, which was effectuated on August 15, 1977. The General Counsel contends that there was a disparity of raises granted and wages paid to Carboni as compared with other employees classified as laborers. Carboni was an active supporter of the Union from the inception of its organizational efforts. He served on the Union organizing committee, and was one of sev- eral employees who delivered to the Respondent the ini- tial communication from the Union advising them that a union organizing drive was in progress. In October 1976, he distributed union literature on the Respondent's park- ing lot. He continued to support the union subsequent to his return from the strike. He served as a Union steward. He was laid off in November 1976 and pursuant to the settlement agreement was recalled in August 1977. He did not participate in the strike because as he testified he considered himself on layoff status. He did visit the picket line to converse with the striking employees. He testified that after the strike he retrieved some union ma- terials from fellow employee Mosshamer outside the plant across the street from the plant office in September 1977, at which time Pufahl photographed him. His testi- mony in this regard was vague, uncertain, hesitant, con- tradictory, and, I conclude, inherently unbelievable. The conversation with Mosshamer either took place in Mos- shamer's car or outside of his car amidst many cars in that parking lot, as the sun was setting and the evening darkness fell. Pufahl was supposedly standing in the doorway across the street, to which Carboni had first testified was at a distance of only 15 or 20 feet away, a physical impossibility in light of his testimony as to the separation of the two points by the entranceway, sidewalks, a major street, and the parking lot. He had no recollection whether Mosshamer and he were sitting or not. It is not clear from his testimony how Pufahl could have identified him from the stoop of the plant while Carboni and Mosshamer were either in or out of Mos- shamer's car in that parking lot. Overall, Carboni proved to be an inconsistent, vague, hesitant, uncertain, and to- tally unreliable witness. However, it is clear that Carboni did engage in union activity inasmuch as he was appoint- ed as the union steward; and that he did serve on the Union negotiating committee. The General Counsel adduced the testimony of wit- ness and former employee Deborah Bucher who testified as to purported expressions of the Respondent's animos- ity toward Carboni because of his union activities. She testified that she entered on duty on May 31, 1977. She was classified as a riffler; i.e., an employee who glues rubber strips to a table. The foreman for that department was Robert Wafer. She testified that sometime during the months of June or July 1977, she had a conversation with Wafer which she had initiated and during which she inquired of Wafer what would happen to her job status if the Union returned; i.e., she had been hired sub- sequent to the strike and the Union was then on strike. According to her, Wafer opined that she would lose her job, but if the Union did not come in she would receive a promotion and a wage increase. Also Wafer referred to employees Lyle Franks, Chuck Newhouse, and Charles Mosshamer as "troublemakers." Further Wafer allegedly stated that if those strikers returned that he Water would either quit or retire. The conversation was rendered without context. Bucher further testified that sometime during the fall of 1977, she again had a conversation with Wafer which she again initiated and again asked the same question and that he again said the same thing. Wafer also stated that she was becoming "too friendly" with Carboni and that Carboni was "union" and that she "might get in some trouble by being so friendly with him." According to Bucher, sometime in early fall 1977, she had a conversa- tion with Davis. She could not recall who initiated the conversation and could recall only that Davis told her that he had noticed that she was becoming "too friend- ly" with Carboni. 386 I)I-ISIR (')NCT'N'TRATOR CO()MPAN Y On cross-examination. Bucher conceded that in her pretrial affidavit of March 2, 178, with respect to the first conversation with Wafer, she failed to indicate that Wafer responded to her question as to what would happen to her job status if the Union returned She also admitted that her affidavit contained no reference to a conversation with Wafer wherein Wafer referred to her getting too friendly with Carboni. On the whole, the wit- ness appeared to be testifying mechanically as if she had memorized the substance of her testimony. In response to her question on direct examination as to her conversa- tion with Davis the tone of her voice in giving the answer and her rueful facial expression suggested that she was asking a question rather than giving an answer. Overall, she appeared very uncertain and unconvincing in her demeanor. 16 Wafer denied that he had told Bucher that she was too friendly with Carboni because he was union. Similarly Davis testified that he did not at any time tell Bucher that she was too friendly with Car- boni, and that Carboni was "union." I found Davis and Wafer more convincing than Bucher, whom I discredit. Carboni was initially hired as a laborer in the machine shop at 53.45 an hour. On April 31, 1976, he was raised to $3.52 an hour, pursuant to the normal 30-day wage iii- crease following initial employment. His next increase was June 28, 1976, when he was raised $3.56 pursuant to the normal 60-day raise. On August 16, 1976, he received an increase from $3.56 to $3.65 while he was still in the laborer category. This raise was given pursuant to a gen- eral recognition of his good-work performance. On August 15, 1977, following the settlement agreement, he was recalled as a laborer in the machine shop at the rate of $3.90 per hour, pursuant to a general increase in pay of 25 cents per hour. In the 2-year period preceeding the hearing, his job duties remained the same as that of a la- borer in the machine shop. He is neither a machinist nor a machine operator. Seven other employees who were hired as laborers be- tween August 1 and September 21, 1978, were hired at the rate of $3.90 per hour and after 90 days were raised to a rate of $4.12 per hour. The only other employee that had a current rate of $3.90 per hour, was an individ- ual who was hired on December 4, 1978. Five of those individuals were hired as laborers in the carpentry de- partment. Carboni was a laborer in the machine shop. With respect to the raises granted to the laborers at the end of 1978, they were granted wage increases pursuant to Davis' review of their work progress which was de- termined by him to be satisfactory enough to warrant an increase to the maximum rate of $4.12 an hour. During the same period of time, Davis reviewed the work prog- ress of Carboni and determined that it was unsatisfac- tory. He concluded that there was no noticeable im- provement in his work which he concluded was defi- cient. Carboni's work function involved the checking of sus- pended head motions. It is critical to the Respondent's 'R Bucher ulas employcd by the Respondelt unlil Junc ., 1978,. hen she Bwas terminated A sexual drimninalion complal nit as filed h hel with the Fr Wayne Metropolitan tuman Relatii,,, Co.mmisin, alleging a discrimrinalor discharge prcnmicd on sex, which Aas sublhquelnll dis- missed product that the head motion be properly balanced Ac- cording to the unconitroverted and credible testimony of Davis, and that of Director of [enginecring John Christo- ferson, the head motions assembled by Carboni over a long period of time were assembled defectively in that they were not properly leveled. Ultimately that defect caused the breakdown of machinery in the field The ma- chinery was inspected by Christoferson and after investi- gation it was determined by him that the cause of the breakdown of the machinery was due to the nonbalanc- ing of the head motion Because of the malfiunctioning of the head motions, the Respondent incurred a ubstantial cost running into thousands of dollars. During the period of time from May through November 1976, of 143 ma- chines shipped to customers, 107 required replacements of the head motions. Christoferson was required to make a check of head motions at the customers' locations throughout the United States. The assembly of those head motions was traced to Carboni. Sometime in June of 1978, Christoferson had determined that he had re- paired a majority. if not most, of the head motions that had been distributed throughout the United States. ie therefore made an analysis for his superiors as to what the engineering department had expended in the repair- ing of the head motions. He did so on his own initiative. The underlying investigative work by Christoferson commenced many months earlier, on or about August 16, 1977, at a point in time when he determined or was attempting to determine which coal companies would have to be visited in his investigation. His initial memo- randum indicated that Carboni had assembled certain head motions from April 29 through November 5, 197h. He therefore delineated the geographical distribution of those head motions. On November 7, 1977. he composed a breakdown of all coal companies that remained to be checked for defective head motions. On November 28, 1977, he had prepared a memorandum for his superiors which contained a breakdown of head motions assembled with the critical defect involved. He recommended in that memorandum that the list was not complete but that the head motion check should "become part of our normal start of procedure." He composed the final analy- sis heretofore mentioned months later in June 1978. There is no evidence that Carboni was discriminated against with respect to any other employment condition. He received a production bonus in January 1978 and before that a production bonus in 1977 although he was on layoff status at that time. In cross-examination, Carboni admitted that he had performed work on the head motions, and that subse- quent to his recall, pursuant to the terms of the settle- ment agreement in August 1977. he was accused by Foreman Karl Huff of performing defective work on the head motions. He was thereafter taken off the assembly of head motions. After Carboni was taken off the head motion assembly, he testified that there were occasions when he was assigned to head motion assembly work again, although his primary job after that period of time in the machine shop was the building of connectors, cleaniing of spray nozzles, and painting. Prior to his recall. he had spent almost all of his time in the assembly 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of head motions. After his recall the type of head mo- tions he worked on also changed. It was not until after Carboni's recall in August 1977, that the Respondent's engineer, Christoferson, became aware of a problem and surmised that the problem was traceable to the head motions that had been assembled during the period of time in which Carboni was assem- bling head motions. 7 His subsequent investigation en- compassed a lengthy period of time as noted. Thus, ap- parently, by the fall of 1977 the Respondent had correct- ed its assembly with respect to the proper leveling of head motions. However as of the date of the hearing, the head motions that were assembled during the critical period of time still remained out in the field and uncor- rected, because of various reasons including the inacces- sibility of the machine. Head motions that have been shipped and which were assembled by Carboni subse- quent to his recall have been each individually checked for the defect caused by the nonbalancing. A special pro- cedure for testing these head motions at a higher speed has been implemented. It is Davis' uncontroverted testi- mony that he has assigned Foreman Karl Huff to check every head motion that has been assembled by Carboni and that it has been reported to him that virtually every head motion had to be releveled, and that Carboni has been advised of such fact on numerous occasions. I conclude that the Respondent had reasonable grounds to conclude that Carboni did not warrant an in- crease of his pay of $3.90 an hour to the maximum rate of $4.12 per hour, and that its action toward him was not discriminatorily motivated. Past raises granted him, were given at a time when the extent of his defective work- manship remained undisclosed. 4. The discharge of Lawrence Bade The complaint, as amended, alleges that the Respond- ent on or about September 5, 1978, discharged Lawrence Bade because of his union activities or sympathies. Bade was hired by the Respondent on or about July 18, 1978. He was interviewed by Davis in the presence of Carpenter Shop Foreman Robert Wafer. Bade was as- signed to work for his 90-day probationary period in the carpentry department. The Respondent denies that Robert Wafer is a supervisor within the meaning of the Act. I conclude from the record, which in many areas is uncontradicted and in part admitted by Wafer himself, that as carpentry shop foreman, or working foreman, it is Wafer's responsibility to determine the job assignments and to make job assignments for 12 to 18 employees in the carpentry shop. It is also his responsibility to oversee the work of the carpentry shop employees and to make certain that, according to his judgment, they are per- forming their work properly. Employees are obliged to follow his orders as to how they are to perform their work. If employees are missing, Wafer obtains replace- ments for them. He spends at least 10 percent of his time observing the work of carpentry shop employees. He considered himself part of management, and therefore i? There is a wide range of time. depending on the type of machine and the customer's needs, from when it is assembled to when it is shipped and may encompass a period of many months. Thus, actual leveling work may have preceded the shipping date by a substantial period of time. testified that he did not engage in conversations with em- ployees with respect to possible threats or statements of coercion pursuant to outstanding instructions issued to the foremen during the election campaign. He consults with Davis with respect to employees' request for time off and conveys to them the permission or denial of such request. According to his own testimony, he has issued "lots" of verbal warnings to employees for work defi- ciencies or deficiencies in conduct. He testified that he consulted with Davis, and based on his representation Davis gave his approval or denial of the issuance of the warnings. According to Wafer, Davis has never given a warning to employees without first discussing and ob- taining Wafer's representation of the facts involved. He is also consulted by Davis as to the decision to discharge employees. It is clear that with respect to decisions to discipline and discharge Davis, relies on Wafer's version of the facts, without an independent investigation of his own. Wafer is situated at a desk in the carpentry depart- ment. According to his own admission in 1973 and 1974, he issued several disciplinary warnings to Mosshamer and attempted to resolve the conflict between employees and their fellow worker Mosshamer. He ordered Mos- shamer's fellow employees to attempt to get along with Mosshamer despite their personal objections to him. Wafer also has custody at his desk of confidential em- ployment records of carpentry shop employees, includ- ing data concerning their wages and other personnel matters. He maintains a record of the carpentry shop em- ployees' work progress as well as their conduct and their attitude. It is clear therefore that based on Wafer's exer- cise of the authority to assign and direct work and to make recommendations concerning the work status of employees that he occupies a position as a supervisor within the meaning of the Act. During Bade's hiring interview, which was conducted by Davis, Bade was presented with the Respondent's work rules. He conceded that he was sufficiently ap- prised of the Company's rules which forbade soldiering on the job and wandering away from one's work station. He was also aware that he was to be employed for a probationary period of 90 days. During the interview the only reference to the Union occurred as Bade raised the question as to whether or not the Respondent's employ- ees were represented by a union. Bade could not recall whether Davis stated that 70 percent were "in the Union" or 70 percent were "not in the Union." He did concede that Davis told him that it had an "open shop." Bade either asked Davis when he was eligible to join the Union or when he was able to join the Union, and ac- cording to Bade, Davis merely responded that he was a probationary employee for 90 days. Bade's duties involved riffling, i.e., cutting pieces of rubber and gluing them to a table, and some spray paint- ing. During his break periods, Bade spent his time with Mosshamer, Carboni, and employee Rebecca Bates. Mos- shamer and Carboni of course were known union activ- ists and members of the union bargaining committee. It is presumably Bade's association with Mosshamer and Car- boni and his subsequent conversation with Mosshamer 388 DEISlER CONCENTRATOR C()MPANY relating to union membership which the General Counsel contends is the basis for the Respondent's decision to ter- minate Bade, pretextually on the grounds of violations of the plant rules concerning soldiering on the job and ab- sence from one's work station. Bade conceded that at no time was he instructed by any supervisor or representa- tive of management that he was not to associate socially with or converse with Mosshamer, Carboni, or any other union activists. However, certain testimony was adduced which purportedly demonstrated the continuing hostility of the Respondent toward Mosshamer and the Union. Part of this testimony is premised on that of witness Bucher, whom I have discussed previously and have dis- credited as a reliable witness. A second witness, Rebecca Bates, also testified as to this contention. Bates testified that during August through September 1, 1977, she initiated several conversations in the carpen- try shop with Davis. Coworker Bucher was present.' 8 According to Bates, whose testimony on this point was fluent and uncontradicted, she asked Davis how her status as a strike replacement would be affected on the return of the Union or the entrance of the Union into the plant; i.e., the end of the strike and the return of the strikers. Davis responded that if the Union comes in, i.e., if the strikers return there was a "chance" that the strike replacements would be laid off, and that if the strikers did not return, her chances for advancement were en- hanced. Under the circumstances, I consider this to have constituted an objective response to her inquiry. Bates testified that, subsequent to Mosshamer's return to employment following the strike and the settlement, she engaged in a conversation with Foreman Wafer. She placed this as having occurred in early 1978. She testi- fied that the reason that this conversation occurred was her continuing fear of the status of her position as a strike replacement and whether she would be laid off on the return of the strikers. She therefore approached Wafer and inquired about her status. Somehow the con- versation turned to those strikers who would be return- ing to work. Wafer purportedly told her that Mosshamer would be returning to work. At that point Wafer recited to her how Mosshamer had missed a lot of work in the past and how he had assisted Mosshamer and helped Mosshamer with his job, i.e., checked his work for him and done other things for him in the past and that Mos- shamer had "double-crossed him," "went with the Union," and "went against him and he couldn't umder- stand why this was." According to Bates, a second conversation occurred sometime between July 22, and August 21. 1978. Ac- cording to Bates, she had delivered some materials in the carpentry department at the tables and had engaged in a conversation with Wafer. Prior to the conversation she had stopped to talk to Mosshamer. When she got to Wafer, Bates testified that Wafer stated that she should not talk to Mosshamer because he was involved with the Union and that if Davis saw her she "could be eliminat- ed" from her job. In furtherance, Wafer had accused her of spending 10 minutes in conversation with Mosshamer and told her that there was an excessive amount of time '8 Certain errors in transcript are hereby noted and corrected to engage in conversation. Bates testified that on direct examination that she only spent 2 or 3 minutes talking to Mosshamer. On cross-examination she testified that she may have spent 5 minutes talking to him and that she often spoke to other employees for periods of 5 minutes. In cross-examination, she testified that she talked to many employees in passing in the course of performing her work including Mosshamer and was never repri- manded. She had occasion to talk to Mosshamer at least once a day when delivering materials to him. According to her after the warning, she did not talk to Mosshamer "as much." She conceded that on past occasions when she had engaged in passing conversations with other em- ployees she had done so when Davis was nearby al- though she could not recall if Davis observed her on those occasions when she talked to Mosshamer. Wafer's denials of the conversation were limited to a single answer response to limited portions of the purport- ed conversations. He did not deny having conversations with her regarding Mosshamer, nor did he attempt to give his version of those conversations. His response was highly agitated and uncertain, and his overall demeanor unconvincing with respect to this issue. Bates on the other hand, was an assured, confident, fluent, and certain witness. She appeared to have no motivation to give tes- timony adverse to the Respondent, and she impressed me as being an objective, unbiased witness. I therefore credit her testimony. Accordingly, it appears that at the least, Foreman Wafer harbored a lingering resentment and an- tipathy toward Mossliamer. It is this antipathy coupled with Bade's association with Mosshamer that is the basis of the General Counsel's case, with respect to the dis- charge of Bade. I conclude that by Wafer's statement to Bates threat- ening her with a job loss if she associated with a proun- ion antagonist, the Respondent violated Section 8(a)(1) of the Act. Bade received a warning for being absent from his work station and for soldiering on the job 2 weeks prior to his termination. On that occasion, he was assigned to work on a table with fellow employee McCoy. McCoy at one point went to the restroom and, thereupon, Bade left his work station and proceeded to another part of the plant about 30 feet away to talk with Carboni, who was engaged in assembling a head motion at that time. Wafer observed the conversation and approached Bade and asked him what he was doing and told him not to "bother" Carboni and to return to his work station and perform his job duties. There is no contention that at that incident Bade was treated disparately or unfairly nor that he was free to leave his work station and engage in conversations with employees who were actively em- ployed in their duties, nor that he had no duties to per- form. On Friday, September 1, in the morning, while McCoy was washing a table that was to be especially prepared for display at a trade show, Bade sat idly on top of the table at which point he was confronted by Wafer and told to get off the table, and assist in washing it. He was accused again of soldiering on the job. I)Ft'ISIO)NS ()F NAIIONAL I.A()KR REI.ATIONS OARI) At noon during the lunch period. Bade met Mos- shamer at a nearby tavern and inquired about union membership. Mosshamer responded that he had not raised the subject with Bade previously because of Bade's status as a probationary employee. Mosshamer promised to get a union membership application card and give it to Bade. At the 2 p.m. break period, Bade encountered Mos- shamer near the snack machines where employees gath- ered during the breaktime. Bade sat on a nearby table facing Mosshamer, who stood near one of the vending machines. On direct testimony, Bade testified that Mos- shamer took a union membership card out of his pocket but noticed an oil spot on it and crumbled it and threw it away. In his pretrial affidavit, he testified that Mos- shamer looked at the membership card and put it back in his pocket. In any event it is clear that Mosshamer did not tender to Bade a union membership card. Bade testi- fied that after Mosshamer either threw away the card or put it back into his pocket, Bade turned around and no- ticed that Davis was in the room at a distance of about 20 feet away from him. Bade did not testify that Davis engaged in any conduct which revealed that he had been looking at the two individuals prior to the retrieval of the union membership card from Mosshamer's pocket. nor that Davis gave any indication of hearing any of the substance of the conversation. It is not clear how many other employees were in the room at the time. According to Davis many employees gathered in the vending machine area to obtain snacks from the vending machines during the 2 p.m. break. He conceded that he may have seen Mosshamer and Bade in the snack room talking on many occasions, but he denied having ob- served any actions with respect to a union membership card. Indeed from Bade's own testimony it is not clear at what point Davis entered the room. Mosshamer testified with respect to other matters, but he was silent on this point. September 1, was a Friday. Monday was a holiday. On Tuesday, September 5, Bade was terminated and re- ceived a termination notice setting forth that he was being discharged because of his past absence from his work station and his soldiering on the job. The face of the notice indicated that he had received three repri- mands. Bade testified that he disputed with Davis, on presentation of the termination notice, the assertion that he had received three warnings and contended that he had only received two. Bade did not testify that he in any way disputed with Davis the justification for the two reprimands. There is evidence in the record that em- ployees may converse with fellow employees as they tra- verse the plant in delivering materials, etc. It is also clear that the Respondent does have rules against soldiering on the job and leaving one's work station without justifica- tion. There is no evidence that the Respondent has con- doned similar conduct by other employees. Obviously a probationary employee who had been observed soldier- ing twice in the short span of time can reasonably be ex- pected to be the subject of a discharge. The General Counsel's argument that Bade was dis- charged not for soldiering on the job but because of the association with Mosshamer and his union activities and sympathies is based on too tenuous a premise. Although the Respondent had a general antipathy toward the Union, and based on the credited testimony of Bates, Foreman Wafer had a specific antipathy for Mosshamer because of his union activities, there is little in Bade's conduct on which the Respondent could reasonably base a suspicion that he was allied to the union cause. His in- quiry on being hired was general in nature and was not an espousal of prounion sympathies. Nothing was stated in that hiring interview that could be characterized as a warning or threat to Bade not to engage in union activi- ties or not to support the Union. In fact, Bade did not discuss the subject matter of a union or express any prounion sympathies until after he had received two rep- rimands. Counsel for the General Counsel's argument rests on the inference that Davis must have observed the conversation between Msshamer and Bade near the snack vending machines. I credit Davis' testimony that he observed no union membership card as forming part of a transaction between Bade and Mosshamer at the vending machines. However, assuming that he had ob- served the incident, and assuming that Bade's testimony, which was uncorroborated by Mosshamer, is accurate the most he would have observed was Mosshamer re- trieving a small card from his pocket and then either throwing it away or returning it to his pocket. At a 20 foot distance, it is unlikely that Davis could have recog- nized the card as a union membership card. Furthermore, there is no evidence that the room was so quite and bereft of conversation among employees engaged in con- suming snacks and socializing that Davis must have heard what was said. In fact, Bade gave very little testi- mony as to what actually was said by Mosshamer and is not clear that Mosshamer identified the card as a union membership card orally as he was confronted by Bade. Finally, what Davis would have observed was Bade walking away from Mosshamer without having received a union authorization card. It could equally be inferred that what had transpired was a rejection by Bade of the tenure of a union authorization card to him by Mos- shamer, assuming that Davis would have identified the card as a union membership card. The strongest element of the General Counsel's case here is the fact that the final termination notice set forth that it was a third warning to Bade. There is no evidence that the Respondent follows a regular course of action of not terminating probationary employees until they have received a third warning. The rules merely state that a violation of the rules including, inter alia, soldiering on the job and absence from the work station, shall incur a discipline including discharge. Moreover, what ever the Respondent's practice is with respect to its permanent employees, Bade was a probationary employee. What we are left with then is the testimony of Bade that he did not receive three full and separate warnings and the su- spicuous assertion on the termination notice that three separate warnings were issued. I conclude, however, that such erroneous assertion by the Respondent does not es- tablish that its action was so unreasonable as to infer a discriminatory motive, particularly in the absence of any evidence that Bade had clearly respoused prounion sym- 39() I)EISTER CONCENTRATOR COMPANY pathies in his conversations with Mosshamer preceeding the issuance of the two reprimands, and the lack of sub- stantial evidence that the Respondent was aware that Bade decided to join the Union after receiving the first two reprimands. Accordingly, I conclude that there is in- sufficient evidence to establish that Bade was discharged because of union activities or sympathies. 5. Refusal to reinstate strikers on grounds of picket line misconduct Pursuant to the terms of the settlement agreement, six of the strikers who were placed on the preferential hiring list were placed on that list subject to the Respondent's subsequent determination as to whether, in its judgment, their alleged picket line misconduct would bar their rein- statement. These included Robert Preston, Mark Ander- son, Jeffrey Thomas, Verle Byrd, Jr., Thomas Ne- whouse, and Alan Ramsey. Of these, Jeffrey Thomas was offered reinstatement subsequent to the settlement agreement, which he accepted. He voluntarily terminat- ed his employment thereafter inasmuch as he was em- ployed on another job the starting time of which over- lapped his starting time at the Respondent by an hour and a half. Thomas Newhouse voluntarily terminated his employment in December 1977, having obtained another job in April 1977. Alan Ramsey notified the Respondent of his voluntary termination on October 10, 1977. Inas- much as these employees voluntarily terminated their employment, the Respondent was not faced with the de- cision as to whether it would deny them reinstatement for strike misconduct inasmuch as it had not reached the point in time when work would have been available for them. However, of the six. Preston and Anderson had not terminated their employment and the Respondent was faced with the decision on April 14, 1978, of wheth- er or not it would offer reinstatement to them inasmuch as positions were available; and they were at the bottom of the seniority roster and the last of the employees to be offered reinstatement pursuant to the terms of the settle- ment agreement. On that date the Respondent decided to terminate their employment on the grounds of picket line misconduct. As to whether Preston and Anderson engaged in picket line misconduct is a matter for credibility resolu- tion between the testimony of those two individuals as corroborated in part by employees Charles Newhouse and Roger Bacht and the testimony of the Respondent's agents, Davis, Christoferson, and Pufahl. Pufahl testified that the final incident which caused him to terminate Anderson and Preston was the May 5, 1977, picket line incident involving an encounter be- tween Director of Engineering Christoferson and Pres- ton and Anderson. Prior to this time, according to Pufahl, he had observed from his vantage point on the second floor office, immediately above the site of the picketing on the driveway below, that Anderson and Preston on numerous occasions placed 1-1/2 inch pack- aging nails on the driveway which subsequently caused damage to tires that thereafter needed replacement. He observed them beating on passing automobiles of non- strikers while concurrently shouting threats in the nature of "we'll get ou." Pufahl also observed the physical en- counter of May 5, between Christoferson and two strik- ers. While giving due consideration to the lack of fluency and natural tension aroused in an employee while testify- ing in a courtroom setting, and while giving due consid- eration to the passage of time involving the events, I am however still constrained to discredit the testimony of Anderson and Preston whom I found to be hesitant, un- certain, furtive, and thoroughly unconvincing wit- nesses.19 Both had an opportunity to testify when called by the counsel for the General Counsel and when called in rebuttal. Davis, Pufahl, and Christoferson testified at length. The most impressive witness was Christoferson who not only was fluent and assured, but he also demon- strated that kind of spontaneity and responsiveness which is indicative of candor. Neither Preston nor Anderson appeared to be particularly responsible for the original organizing effort of the Union, nor did they play a par- ticularly visible representational role in the Union with respect to negotiations or the strike except for conduct on the picket line. Thus, there appears to be little moti- vation for the Respondent to discriminate against these two employees by concocting testimony with respect to picket line misconduct. Anderson and Preston denied placing the nails on the driveway. They did not deny the presence of the nails on the driveway nor did they explain how the nails got there. Anderson denied striking a vehicle with a stick or a club and denied pounding on a vehicle Preston also made the same denial. However, Anderson admitted that one and conceivably many more clubs were maintained in the picketers shack at the driveway. He admitted that on one occasion he wielded a club on the picket line, which consisted of a piece of lumber 3 feet in length by 2 inches thickness. He testified that he could "recall" only one occasion when he wielded the club on the picket line and it occurred in response to a nonstriker whose vehicle had been stopped and who had got out of his automobile with a I or 2-foot length of cut off broom handle, and who had commenced to approach another picket. At that time, according to Anderson, he picked up the club in the picketers' shed and ran outside. No en- counter, according to him, occurred at that time. He conceded that although that is the only occasion he can remember, that it is possible that there were other occa- sions. He did so in a very evasive tone and manner which was thoroughly unconvincing. I conclude that prior to May 5, both Preston and An- derson engaged in picket line misconduct, which consist- ed of the placing of nails on the driveway, beating on ve- hicles of nonstrikers as they attempted to make egress "9 Employees Charles Newhou*e and Roge: acht ere called to, cor roioralt Mark Anderslon and Robert Preston as to the Mavy 5 incident I discredit their cryptic, hesitant, uncerlain. and inconsistent estimon 5 An- derson. after an initial denial. admitted that he grabbed Christfersoa Ne- whousc testified only that Preston and Christoferson exchanged punches Bacht I etifilcl Ihat he coul Il rt .elln recall Anderson's presence lachl and Neh house tcstlfidcl rhat Chril. rr. lr l started Ihl fightl y grahhing or pulling Anderson', hair In hi, pretrial affidasil. Bachl leslilied tha Chrlstoflersoln ,iartcd Il e figh h swinging at Presto l All agree Ihat T hristrofCerlon ilial l demanded hat I'resilon remo e Is chain fron irllder Ihe tfro l sl eel of (Chrlsifcrllr 's vehicle, and that P'reston did noi .rnmpl) 301 DECISIONS OF NATIONAL LABOR RELATIONS BOAkD from the plant, and the yelling of general threats to "get" the nonstrikers. I also conclude that they engaged in the following conduct on May 5. On that date Chris- toferson attempted to drive his van past the pickets as he made his way out of the plant. His passenger at that time was Pufahl. As they approached the picket line, the van encountered in its path, Preston who was slowly cross- ing the driveway carrying a metal folding chair. The van stopped before it reached Preston who blocked the path of the van. Preston threw his metal chair under the wheel of the van. After Christoferson got out of the van and attempted to persuade Preston to retrieve the chair, Preston commenced to make a motion as if to strike Christoferson. At that point Anderson rushed up and grabbed Christoferson from behind and grasped his shoulders. Preston struck Christoferson a glancing blow which caused Christoferson's glasses to fall to the ground. Christoferson struck back with his free hand and the two of them scuffled for a few minutes and thereafter Christoferson retrieved his glasses and returned to the truck and drove on. At that time there were approxi- mately 10 to 15 pickets marching back and forth in the driveway. 20 The Respondent filed a charge against the Union in Case 25-CB-3023 alleging picket line misconduct which was subsequently disposed of by a settlement agreement which preceeded the settlement agreement in the instant case. The scattering of nails at places of egress and ingress on the picket line at a strike bound plant, has long been held by the Board to constitute misconduct sufficient in itself to warrant discharge. Moore Business Forms. Inc., 224 NLRB 393 (1976); enfd. in part, 574 F.2d 835 (5th Cir. 1978); Otsego Ski Club-Hidden Valley, Inc., 217 NLRB 408 (1975). Where the unfair labor practices have caused or prolonged a strike, the Board has balanced the misconduct of a striker against the unfair labor practice conduct of an employer in making a determination as to whether the striker misconduct is sufficient to bar his re- instatement. Coronet Casuals, Inc., 207 NLRB 304 (1973). However, assuming that the Respondent in this case did engage in unfair labor practices which caused the strike I conclude that the conduct of Anderson and Preston which consisted of placing of nails, battering of auto- mobiles, uttering of threats to persons crossing the picket line, and the interruption of Vice President Christofer- son's exit from the plant coupled with physical violence is so severe as to bar their reinstatement regardless of whether the Respondent had indeed engaged in the al- leged conduct which caused the strike. Hedstrom Compa- ny subsidiary of Brown Group, Inc., 235 NLRB 1198 (1978). Accordingly, I conclude that the Respondent did not violate the Act by the termination of Mark Anderson and Robert Preston. Whether the Respondent violated the Act by refusing to reinstate immediately the other strikers who tendered an unconditional offer to return to work, by refusing to 20 As an example of Anderson's uncertainty as to his contrary testimo- ny, he was asked on cross-examination whether it was not a fact that Preston blocked the path of the truck by placing his chair in front of the truck. Anderson responded "I thought he was carrying the chair. I don't know " terminate strike replacements in order to provide em- ployment opportunities for them, must await a determi- nation and an analysis of whether the strike which com- menced on April 18, 1977, was caused or prolonged by unfair labor practices of the Respondent. If the strike was not an unfair labor practice strike, the evidence fails to establish that the Respondent failed to provide em- ployment opportunities for economic strikers as the op- portunity arose in accordance with their seniority, and in accordance with the terms of the settlement agreement. F. Analysis of the Nature of the April 15 Strike The General Counsel argues that the Respondent's unfair labor practices caused and prolonged the strike of the employees from April 15 through July 1977. Assum- ing, however, that the Respondent had engaged in unfair labor practices prior to or even at the time of the presett- lement bargaining, such conduct was not the basis for the employees' decision to engage in a strike. The deci- sion to strike was made contrary to the recommendation of the union bargaining committee, and for the purpose of reinforcing the Union's bargaining position on con- tractual issues. Thus, it was the Respondent's conduct at the bargaining table that caused the employees to strike. The strike can only accurately be characterized as an unfair labor practice strike if the Respondent's conduct consisted of bad-faith bargaining at the bargaining table. The mere existence of other conduct which may be vio- lative of the Act does not convert a strike into an unfair labor practice strike. The Board has stated in forceful, lucid language that there must be a causal relationship, whole or in part, between the employee, the unfair labor practices, and the strike, and mere temporal coincidence does not suffice. Tufts Brothers Incorporated, 235 NLRB 808 (1978). The Respondent is not accused of engaging in surface bargaining nor of bargaining with a fixed intent to avoid reaching agreement during the presettlement phase of bargaining. It is accused of engaging in bad-faith bargain- ing by certain specific acts, i.e., the unilateral suspension of the 1976 extra holidays; the wage increases of April 1977; the refusal to agree to a union-shop clause in the contract; the refusal to meet more than once a week; and the April 26 modification of its buy-back offer because of employees' engagement in strike activities. 2 The Gener- al Counsel in the final stages of this hearing amended the complaint in Case 25-CA-8803 to also allege that the Respondent bargained to impasse unlawfully over a clause which made union stewards subject to greater lia- bility for breach of the proposed no-strike clause. The record reveals that both parties engaged in 13 bar- gaining sessions between February 1 and May 10, 1977. The commencement of bargaining on February I was in no way demonstrated to be delayed by any tactic of the Respondent. Both the Union and the Respondent en- gaged in hard bargaining. Both made proposals, and con- 21 There is no evidence to support an additional allegation of par 8(ii) of the complaint in Cases 24-CA-8803 and 24-CA-9580, to the effect that the Respondent in December 1976, or in March or April 1977, uni- laterally hanged hours of employment or contributions to the employ- ees' social club. 392 DEISTER CONCENTRATOR COMPANY cessions were made in many areas by both parties. The Respondent's conduct in insisting on meeting once a week does not appear to have had any calculated effect on the progress of negotiations. The Union readily agreed to such a pattern at the onset of negotiations in order to give it time to formulate proposals and to digest information which was timely supplied to it by the Re- spondent. There is no contention that the Respondent at any time unreasonably delayed information which the Union requested. nor that it purposely obstructed the Union's access to any relevant information. Indeed, after the initial meetings the Union was rather slow in submit- ting its own full contractual proposals, even as to areas which it conceded were standard union proposals. Fur- thermore, the Union acquiesced with this pattern and did not make any serious effort to expedite meetings which, at a later stage were determined by the availability of the Federal mediator. The Respondent offered to engage in lengthier meetings and the Union, at times, did not avail itself of that offer, presumably because its employee ne- gotiators did not wish to negotiate on their own time during shift hours. There is no evidence that the Re- spondent refused to meet at an earlier time of day nor that it refused to meet later in the evening. In any event, meetings were held later into the evening and on occa- sion into the morning hours. Certainly, when Mosshamer conducted the strike vote meeting he did not perceive, nor did he portray to the employees, that the Respond- ent had engaged in dilatory bargaining tactics. Rather, it was the committee's recommendation that the Union avail itself of the Respondent's willingness to negotiate further, and with some further concessions by the Union the committee expressed an expectation that compro- mises could be achieved. I conclude that the Respondent provided the Union with sufficient opportunity to meet and fully explore all the contractual issues, and that the pattern of meetings requested by it, under these circum- stances, failed to evidence bad faith, and in any event it was not causative of the strike. With respect to the alleged unilateral actions of the Respondent, no reference was made by Mosshamer of these actions at the strike vote discussion. Any reference during bargaining to the Respondent's unilateral change in working conditions, or its alleged unfair labor prac- tices prior to bargaining, were at most peripheral to the discussions at the bargaining table, and were unrelated to the failure of the parties to come to agreement on the substantive contractual issues. The Respondent's proposal language as to greater lia- bility for the union stewards' breach of the proposed no- strike clause, assuming such clause was, per se, unlawful, did not cause any serious disagreement over the course of bargaining. 22 Inasmuch as the Union readily acceded to that proposal, the Respondent cannot be characterized as bargaining to impasse over an unlawful subject for bargaining. The issue was therefore extraneous to the main issues which divided the parties on April 15 and 2 The General Counscl relies on the rationale of Precion (arting Company Divivion of .urra (orr)raliolU. a vhlo//v owned Suhbiuarv oj Allied Products Corporatton. 231 NRH 183 (1977), which invoked the issue of whether an employer could impose greater discipline on unioni stewards in the context of a reach of a no-strike clause bore no relationship to the failure of the parties to reach full contractual agreement. As to the Respondent's assertion to the union bargain- ing committee that it would lessen its buy-back offer of the pension plan and bonus if employees engaged in the strike, I find such conduct to be nothing more than an acceptable bargaining ploy. The Respondent's position that the strike would impact profits and that it therefore would reevaluate what it could afford or desire to grant by way of economic concessions, is not an unreasonable bargaining stance. There had been no agreement on the buy-back proposal. The Union's position was that it wanted a pension plan and a profit-sharing plan, but it was amenable to discussing the elimination and buy back of the pension plan and annual bonus "if the price was right." It is not unusual or unlawful for parties in negotiations to withdraw or modify proposals, given a change in cir- cumstances. O'Malley Lumber Company, 234 NLRB 1171, 1179 (1978) After the employees engaged in a strike, they might have expected that the Respondent would yield to economic force and make concessions. However, they had no right to assume that the Respond- ent was bound to continue to make its same economic offer, merely because they had engaged in a strike. Inas- much as the Respondent had been subjected to a strike, which affected its profits, it cannot be held to have acted in bad faith merely because it lessened an economic offer that had been made earlier under different circumstances, i.e., at a point in time when an expectancy of agreement on wages, etc., was entertained by the parties without the necessity of incurring the economic ravages of a strike. To characterize the Respondent's action as bad- faith bargaining is to ignore the realities of collective bargaining. When employees engage in a strike they must accept certain risks, and one of those risks is that their exercise of economic power may not be successful, but rather may, under certain circumstances, be counter- productive. The Act guarantees employees a right to engage in concerted activity. It does not guarantee that such activity will be successful, nor does it prohibit an employer from making economic adjustments in conse- quence of the results caused by the strike. Furthermore, an employer who has been able to survive a strike may very well utilize such ability as its own bargaining tool and may readjust its bargaining stance accordingly. O'Mlalley Lumber Company, Ibid. In any event there is no evidence that the Respondent's threat to modify the buy- back offer caused the employees to vote for the strike, nor is there any evidence that the Respondent's subse- quent actual modification prolonged the strike. The outline of the major divisive issues as presented to the employees by Mosshamer related to the Respondent's position on at least 10 substantive contractual issues. Its position on one of those issues is alleged as evidence of bad-faith bargaining; i.e., its refusal to agree to the Union's proposed union-security proviso; i.e., the union shop. Agreement on this issue, however, would have still left the parties at a stalemate on other economic and noneconomic contractual matters. The Respondent took the position that it would not agree to a union shop, i.e., 393 I)F.(It IS)NS ()01: NA I()NAIL I.AII()R RF.LA I IONS ( BOARi) conlpulsory union memhership after the appropriate stat- utory grace period, il view of the substantial number of employecs who had voted ifor the Deister Concentrator Company. Inc. employees' shop comlmittee. That entity had represented employees for many years. It had par- ticipated in a Board-coniducted electiol as at obstcilsibly hona fide labor organization and had lost the election by not an overwhelhilinlg ullber of otes. The Union insist- ed o an open shop arid lever suggested that it rouLld accept anythinig less. The Respondent rejected each derl;rand with the samnie argumeit. The Union did not seek to dissuade the Respondent with arguments of a philosophical or pragmatic nature. It simply made its de- miands and remained silent aifter it had received negative responses. Nolan did not testify that Furst refused to dis- cuss the issue, nor that he refused to listen to any argu- nlltis that the Union wished to advance. he Rspond- cnt did not offer a modified union shop, but neither did the Union request a modlified urnion shop. lThe Respond- cnt indicate that it considered the dues checkoff as an economic cost itern that it would agree to in trade off for its economic ofter. Thus, it did not take an unalterahle position against anything that would have enhanced the Union's representational status with the employees. An employer's vigorous opposition to a union-shop provision i a collective-bargainiling agreement is not in itself evidence of bad faith. Cf.. S & Co.. oJ' Billings. and .sociatlcd lnduvrits of t'il/ing, Montana, 159 NLRt3 9()3 (I )66); Star E.panion Idusiries Corporalion, 164 NI.R13 563, 580-5() 2 (197); Otto Klein. Inda Khlin. Ste- phen Colh'ns, I.oais Cn,. ,Martaret Beaudoin antd Robert Gillle, u.s Trustecc, .t Co-Partnership, d/h/a/, tr- liste Pernancnt Wave Comnpany, 172 NLRI3 1922, 1923- 27 (1968). The General Counsel cites Queen Mary Res- taurants Corporation. and Q. M. 1oods. Inc., 219 NLRI3 776 (1975). enfd. 560 F.2d 403 (9th Cir. 1977), in support of his position. In that case, however, the respondent had been guilty of engaging in dilatory and evasive bargain- ing tactics, surface bargaining, and the maintenance of a fixed intent at the bargaining table to avoid reachinig contractual agreement, including a failure to make any counterproposals. Furthermore, the respondent in that case rejected the Union's offer of even a modified union shop. i.e., a "grandfather clause," on the grounds that it, the employer, represented employees who had voted against the union contrary to the certification of the union as the exclusive representative of all employees that any form of union security was immoral despite the fact that its parent corporation had entered into union- security clause contracts elsewhere; and that it was "eco- nomic suicide." In the context of that employer's egre- gious surface bargaining, and in light of its specious ex- planation of its position, it was concluded that a refusal to accede to even a modified union shop was motivated by bad faith and was utilized as a means of preventing total contractual agreement. In this case, the Respondent's presettlement bargaining posture is in no way comparable. The Respondent's pre- settlement bargaining at the bargaining table constituted hard bargaining which in turn was met with hard bar- gaining by the Union. The failure to reach agreement on numerous issues, of which the union-shop clause was merely one. was not due to the Respondent's bad faith at the bargaining table. I cannot infer from the bargaining history that the Respondent's position on union security was made in bad faith or intended to prevent contractual agreement. Finally, as perceived by Mosshamer, and as reported by him to the mnembership, the union committee entertained some hope that the Respondent might accept a modified union shop i it were offered. As we have seen, the employees refused to permit their committee to make any concessions as to that or as to at least nine other substantive issues as suggested by Mosshamer. Thus, the Respondent's inflexibility was met with an equal inflexibility b the Union. It is my conclusion therefore that the employees' deci- sion to strike as of April IS, 1977, was made not because otf any unfaiir labor practice by the Respondent. I con- clude that the strike was initiated as an economic strike to compel tile Respondent to accede to the Union's bar- gaining position, and that it was not converted into an unfair labor practice strike by tile mere characterization of it t as such by the Union for tilhe purpose of enhancing the employees' reinstatement rights. As there is a lack of any evidence that subsequent conduct of the Respondent had any causal effect on the continualion of the strike, I conclude that the strike remained an economric strike until it ceased in July 1977 2 1 conclude that the strikers were economic strikers. and that tile Respondent did not violate the Act by its failure to terminate permanent strike replacements in order to reinstate economic strik- ers. G. AInulvsi o Poswlsetment 8(a)(5) iolations The Respoident takes the position that an impasse had arisen i collective bargairning and continued to exist up to the time of the settlemenit agreement. Nevertheless, it undertook b the terms of the settlement agreement to bargain with the Uion. The Respondent further con- tends that whei the parties met on November 2 and 17, 1977, the impasse persisted arid was not resolved because the Union failed to press for further negotiations. It argues, therefore, that it lawfully implemented its last contractual offer with respect to the change in method of determining vacation pay in May 1977. It asserts that at no time did it refuse to meet and bargain with the Union. The General Counsel contends that the Respondent re- sumed negotiations with a fixed intent not to reach agreement and also has bargained in bad faith by "refus- ing to negotiate and discuss with the Union matters with respect to union security and related matters." Specifical- ly, the General Counsel cites as evidence of a fixed intent to avoid agreement the Respoyident's tender of a 3-1/2-month contract; a haught at ude at the bargain- ing table; the encouragement of the Deister Concentrator Company, Inc., shop employees' committee petition; the manner in which the Respondent retained the shop bonus in December 1977; the refusal to grant retroactive superseniority to stewards on the preferential recall list: ": lhc unilateral intilusiirl on f he Respornderl' s last wage offer in April 1'977. after a pIurporled inpasse i hargailnrig, is alleged Io he illa- live ol the Act. :I4 I)F1ISI1R C()NCINI RA OR ()MIPANY and the attempt to dictate to the Union the identity of its bargaining representatives. 4 Also, although not alleged in the complaint, the General Counsel argues in the brief that the Respondent "unilaterally"'' retained the shop bonus in December 1977 without bargaining with the Union pursuant to Nolan's telephonic request. The shop bonus, however, had not been eliminated up to this hpoint although the Respondent had proposed such. Thus, what in effect occurred was that the Respondent merely re- tainled a past benefit which up to that point had not been rescinded. It therefore cannot be accused of unilaterally changing benefits of employment. I conclude that s of July 1977, the Respondent and the Union had reached an impasse il negotiations. I coil- clude that this impasse was arrived inl at consequence of hard but good-faith bargaining at the bargaiing table. and was not caused by unfair labor practices of the Re- spondent. Assuming that the Respondent engaged in col- lateral conduct in violation of Section 8(a)(5) of the Act. such conduct did niot induce the bargaining stalemate with respect to such issues as wages, pensions, profit sharing, insurance coverage, the right to strike at step 3 of the grievance procedure, etc. Whether a bargairning impasse existed in November 1977 is another matter. The Board in determiniing wheth- er an impasse exists normally looks to the following cri- teria: argaining history, good faith of the parties ill ne- gotiations, importance of the matters of disagreement, and the contemporaneous understanding of the parties. iafi Broadcasling Co.. H'DII .I/-F'fM IV. 163 NRB 475, 478 (1967), enfd. 395 F.2d 22 (D.C. Cir. 1968). On November 2, the parties had resumed bargaining despite impasse hut pursuant to the terms of a settlement agreement which followed the cessation of a strike. Indeed, a strike, in itself, call effectuate such a change in circumstances such as to break an impasse. The oard has held that when a union requests bargaining after a lengthy strike the employer is obliged under Section 8(d) of the Act to meet at "reasonaitble times" with the union despite the failure of the Union to openly declare a less- ening of its demands. ran.por Company of exas, 175 NLRB 763 (1969). In the instant case, not only did the Union request bargaining after a lengthy strike, it did so within the context of a Board settlement agreement ap- proved by the Regional Director. Whatever defense the Respondent maintained as to a preexisting impasse cer- tainly was waived by its participation in that settlement agreement whereby it undertook to bargain anew with the Union. At the November meeting, at the very outset the Union asserted that its position was much the same as the last bargaining session. However, thereafter, at the first November meeting it requested that the Respondent provide it with a contract in such a physical form that it could be executed by the Union. It was, therefore, un- necessary for the Union to have stated that it was now ready to accept less than its prior demands. In view of the Respondent's refusal to lessen its denmands, such re- " I-he last allegallilo is based 1I) tihe nitial position of tie Resprondcrr in Ihe Novembnhr nregotlatll n t exclude represcntatises Of Ihe Utll l. who uere n actliscly emplyed, Ir om representing the employees il certain stages of the grievance prlcedure. quest as an implicit declaration that the Union would lessen its demands or would prepare alternative propos- als ill further bargaining. ()n receipt of the final contract offer on November 17, the Union did not explicitly reject any provision of thalt proposal. including the dura- tioi clause. Again its conduct hb iot immediately re- spondinig and by requestinl further negotiations to com- mence in January 1978. the Union implicitly declared that the impasse wNas broken and that it was ready to bar- gaint; i e., to submit nrew cotunterproposals. Nolan's testi- mon that he was silently opposed to that last offer does not detract from te possibility that the Union would hase offered alternative proposals in January. Accord- ingly, I conclude that the bargaining impasse had been brokei by the resumption iof the November negotiations. antl that the parties did iot reach impasse prior to the Rcspondent's uniliateral chainge itt the method of comiput- ing vacation pay. The Respondent's positiotn that it did not refuse to meet with the Union is unteliable in light of Pufahl's tcs- liilonly that he did not rcspond to Nolan's ritten re- quest to reschedulc negotiationis in January 1978 because he entertained doubt as to the UlnioIn's majorits status. I colnclude that tlhe Rspondelrt lentered bargainling siih the Uniol i November under the assumption that an election could be conducted I sear after the Dleclerel 28 certification. as well as vith an expectation of such election. That assumptlion was paramount. It emerged in Pufahl's statcment to Schnobel \wlhen he told Schnobel that the proshop colilmittee efforts were premature. It emerged in I'ufahl's November 1977 notice to employees herein lie asserted doubt of the Union's majority status after the first November negotiation meeting. Thus. al- though the Respondent did not instigate the decertifica- tion effort it was keenly aware of activity on behalf of the shop committee. Its offer of a short term contract meshed perfectl witlh what it assumed would be lapse of sufficient time to raise a question concerning represcnta- tion with the Board Although it took no direct hand it the petition's circulation, its notice to employees was clearly calculated to erode the employees' support for the Union. The Respondent was aware of its employees' desire for a continuation of extra holidays, but attributed the inability to grant these benefits to some obligation imposed by its last offer to the Union. The notice to em- ployees implied that the extra holidays had been lost be- cause of its bargaining position with the Union. In fact, this was not the case, inasmuch as no agreement had as yet been reached with the Union and, therefore, no im- passe existed, and the proposal to eliminate the extra holidays remained just that, an unaccepted proposal of no binding force on the Respondent. Although I do not conclude that the substance of the Respondent's proposals in the November negotiations constituted bad-faith bargaining (apart from the duration clause), I do find that the Respondent entered those ne- gotiations with a fixed rltelnt to avoid reaching agree- ment. at least agreement on a long-term contract, pre- cisely because it expected an ouster of the Union shortly after January 1, 1978. Further, by failing to respond to the Union's standing request for negotiations after Janu- :95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary 1, because of its asserted belief of a lack of majority status, the Respondent breached its obligation incurred by the terms of the settlement agreement of August 1977. By that agreement, in return for a dismissal of the refusal to bargain charge, the Respondent agreed to bargain with the Union. A settlement agreement resolving an allegation of a re- fusal to bargain has traditionally, in the interest of indus- trial stability, been held to entitle a union to a reasonable period of time to bargain with the employer during which its majority status is not subject to question and such settlement thereupon takes on the force of a Board order. Poole Foundry and Machine Company v. N.L.R.B, 192 F.2d 740, 743 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952); All Brand Printing Corporation, 236 NLRB 140 (1978); Key Molors Corp., 232 NLRB 214 (1977), en- forcement denied 579 F.2d 1388 (4th Cir. 1978).2 " The Board has determined that a reasonable period of time following a settlement of a refusal to bargain allegation in the certification year should compensate for the failure to bargain during any part of the certification year; i.e., for that period of time alleged to have had manifested bad-faith bargaining. Mar-Jac Poultry Company. Inc., 136 NLRB 785 (1962); Vantran Electric Corporation, 231 NLRB 1014 (1977). In the instant case, the original complaint alleged a re- fusal to bargain by the Respondent which commenced on or about the date of the certification. Thus, under the terms of the settlement agreement, the Union was enti- tled to its full certification year in which the Respondent was obliged to bargain. That year commenced on ap- proval of the settlement agreement by the Regional Di- rector on or about August 5, 1977. Accordingly, under the settlement agreement, which is akin to a Board order, the Respondent was, not in December 1977 or in January 1978, privileged to refuse to bargain with the Union on the grounds that the Union no longer pos- sessed a majority status. Accordingly, I conclude that the Respondent violated Section 8(a)(5) of the Act by re- fusing to bargain with the Union by entering negotiations with a fixed intent to avoid agreement on November 2 and 17, 1977, and by refusing to respond to the Union's request on December 20, 1977, for a continuation of ne- gotiations on or after January 1, 1978. I further find that the Respondent violated Section 8(a)(5) of the Act by unilaterally changing the method of computing vacation pay in May 1978.26 I do not conclude that the Respondent violated Sec- tion 8(a)(5) of the Act by proposing an open shop in the November 1977 negotiations. The terms of the settlement agreement did not oblige the Respondent to agree to a union shop, indeed as the Act itself imposes no obliga- tion on an employer to agree to any specific term or condition of employment. The Respondent was obliged to bargain over the matter of union security. The mere reassertion of its position in favor of an open shop in No- vember 1977, in view of its past good faith on that issue, :s The court refused enforcement, inter alia, on grounds that the initial complaint did not include a refusal to hbargain allegation. 26 The record does not clearly reflect whether the Respondent in- creased wages in May 1978 or implemented any other changes il condi- tions of employment on that date as alleged in the complaint. was not in itself violative of the Act, nor indicative of bad faith. However, the Respondent's attitude toward the Union as manifested by its position against retroac- tive seniority preference for union stewards, by its initial position with respect to the identity of the Union's bar- gaining representatives at certain stages of the grievance procedure, by a newly asserted refusal to cooperate with respect to questions concerning the operation of the profit-sharing plan, and by Furst's statement that he was only present at the November negotiations because the law compelled it, is indicative that the Respondent did not enter negotiations with an open mind and receptivity to agreement. The presettlement allegations On March 13, 1978, the Regional Director vacated and set aside the settlement agreement. Under the terms of that agreement multitudinous allegations of preelec- tion and prebargaining 8(a)(1) conduct consisting of in- terference with employees' rights to select the Union, as well as 8(a)(3) violations including, inter alia, mass lay- offs and other terminations were fully remedied. Back- pay in excess of $25,000 was paid as well as the posting of the appropriate notices for the usual 60-day period of time. Additionally, the 8(a)(5) allegations were remedied by the posting of a notice and a publicly announced un- dertaking by the Respondent to bargain in good faith on request. More than 2 months elapsed before the Union made any contact with the Respondent with respect to arranging a negotiation meeting. Almost 3 months elapsed before the first negotiation meeting was held, through no fault of the Respondent. The Regional Director revoked the settlement agree- ment 7 months after its approval because of the refusal to bargain in November 1977 and because of other subse- quent conduct alleged to be violative of Section 8(a)(1) and (3) of the Act. Inasmuch as I have found that subse- quent 8(a)(1), (3), and (5) violations of the Act occurred, there appears to be grounds to conclude that the Region- al Director acted for good cause in rescinding the settle- ment agreement. However, it has been held that under certain circumstances where postsettlement violations are remote in time, or do not materially affect the remedial order, it may not be appropriate or necessary to rescind a settlement agreement. Utrad Corporation, 185 NLRB 434 (1970). In this case, although the postsettlement violations of the Act are not extremely remote in time, and are en- compassed within the general scope of the settlement agreement, I conclude that it is unnecessary in order to effectuate the policies of the Act that that settlement agreement be rescinded. The preponderance of 8(a)(l) and (3) violations remedied by the settlement agreement occurred with the context of the Union's organizing effort and involved alleged violations of employees' rights to engage in union activities. The thrust of the 8(a)(5) violations in the instant case arise primarily from the bargaining relationship, subsequent to the certifica- tion of the Union as bargaining agent, and involved to a great extent a breach of a bargaining obligation arising from the settlement agreement itself. The essence of the 396 DEISTER CONCENTRATOR COMPANY Respondent's postsettlement bad-faith bargaining arises from its failure to bargain in good faith at the bargaining table. The presettlement conduct of the Respondent did not involve surface bargaining, nor bargaining with a fixed intent to reach no agreement. On the contrary, the parties failed to reach agreement on substantive contrac- tual issues after a course of hard bargaining. I have found subsequent violations of Section 8(a)(1) and (3) of the Act, but they vary in kind and degree from those massive and gross violations alleged to have occurred during the organizing campaign and prior to the settlement agreement. Moreover, they are tangential to the real issue in this case; i.e., the bad-faith bargaining. Finally, inasmuch as I will recommend herein an 8(a)(1), (3), and (5) remedial order, I do not construe that further findings of presettlement 8(a)(1), (3), and (5) violations will materially add to or enhance the remedial order in this case. Accordingly, it is my recommendation that the settlement agreement in Case 25-CA-8803 be reinstated and I therefore find it unnecessary to make any further findings concerning the alleged unfair labor practices predating the settlement agreement. CONCI.USIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, a labor organization within the meaning of Section 2(5) of the Act, and has at all times since De- cember 6, 1976, been the representative for purposes of collective bargaining of a majority of the employees in the appropriate unit consisting of all production and maintenance employees including regular part-time em- ployees of the Respondent employed at its Fort Wayne, Indiana, plant, exclusive of all office clerical employees, laboratory employees, technical employees, salesman, all professional employees, all managerial employees, all guards and all supervisors as defined in the Act. 3. The Respondent by entering negotiations with the Union on November 2 and 17, 1977, with a fixed inten- tion to avoid reaching an agreement on a collective-bar- gaining contract, and by having engaged in bad-faith bar- gaining with the Union on November 2 and 17, 1977, and by refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employ- ees in the appropriate unit after January 1, 1978, has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. 4. The Respondent by unilaterally changing terms and conditions of employment, specifically the method for computing vacation pay for its employees on or about May 1978, without providing an opportunity to the Union to bargain about its decision and the implementa- tion of its decision, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. 5. The Respondent by limiting the payment of bonuses to employees actively employed on its payroll on or about January 1978, and thereby excluding payment of bonuses to former striking employees whose names ap- peared on a preferential rehire list, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. 6. The Respondent by reprimanding employee Schno- blc on or about April 18, 1978, because Schnobel had en- gaged in concerted activities protected by the Act. has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)( I) of the Act. 7. The Respondent by the conduct of its supervisor, Robert Wafer, in late July 1978, whereby Wafer threat- ened an employee with discharge or implied other repris- al if that employee associated with known union advo- cates thereby discouraging its employees' right to union membership and activities, engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) of the Act. THE REMEDY I recommend that the Respondent cease and desist from its unfair labor practices and post an appropriate notice. Inasmuch as I have found that the Respondent re- fused to bargain with the Union on or about November 2, 1977, and, thereafter, in breach of the terms of Board- settlement agreement, thereby precluding the Union from its opportunity to bargain for a full certification year, it will be recommended that the Respondent be ordered to bargain with the Union for a period of 9 months during which a question concerning the Union's majority status cannot be raised. As I have concluded that the Respond- ent unilaterally changed working conditions by changing the method of calculating vacation pay it will be recom- mended that the Respondent be ordered to make whole any employees for any losses they may have suffered as a result of the change in the method of computation of vacation pay on or about May of 1978, in the manner prescribed in F W Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 7 Inasmuch as I have found that the Respondent violat- ed Section 8(a)(3) of the Act by discriminatorily refusing to disburse to the former strikers the 1978 share of bo- nuses for work performed in 1977 by strikers who had not been recalled to work in 1978 but who were on the preferential rehire list pursuant to a preferential recall list, it will be ordered that the Respondent make whole those former striking employees for any losses they may have suffered as a consequence of such action in the manner prescribed in F W. Woolworth Company, supra, and Florida Steel, supra. As I have concluded that the Respondent unlawfully reprimanded employee Charles Schnobel because of his concerted activities protected by the Act it will be recommended that the Respondent re- scind said reprimand, and expunge all reference to same from its personnel or other records. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: z7 See. generally. lsi lIlumhing & Hearing C(o.. 138 NRHB 716 (1962) 397 I)ECISI()NS ()F NATIONAI. LABOR RKLATIONS I()Akl) ORDER 2 The Respondent Deister Concentractor Company, Inc., Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with loss of employment or other reprisals in the event that they associate with union advocates, or otherwise discouraging their union mem- bership and union activities. (b) Reprimanding employees because they have en- gaged in concerted activities concerning wages, hours, or other terms and conditions of employment or matters concerning their mutual aid and protection, as protected by the Act. (c) Discriminating against our employees by refusing to pay them their share of the annual bonus or in any other manner because they have engaged in union or other activities protected by the Act. (d) Refusing to bargain in good faith with Internation- al Union of Electrical, Radio and Machine Workers, AFL-CIO and its Local 998, including bargaining about changing the method of computing vacation pay. (e) In any like or related manner intefering with, re- straining, or coercing employees in the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Rescind the reprimand issued to Charles Schnobel on April 18, 1978, and expunge all reference to said rep- rimand from all its personnel and other records. (b) Make whole all former striking employees who were not actively employed in January 1978, but whose names appeared on the preferential rehire list for any loss of money they may have suffered because of the discrim- inatory failure to pay to them on or about January 1978, or, thereafter, their share of the annual bonus apportiona- ble to the work performance by them in 1977, in the manner set forth in the section of this Decision entitled, "The Remedy." (c) Make whole all employees for the loss of any money suffered by them because of the change in the method of computing vacation pay on or about May 28 In the event nrio exceptions are filed as provided by Sec. 102.46 of Ihe Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, coinclusions, and Order, and all objections thereto shall be deemed waived for all purposes 1978, which was done unilaterally and without bargain- ing with the Union, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Upon request bargain with International Union of Electrical, Radio and Machine Workers, AFL-CIO and its Local 998, as the exclusive collective-bargaining rep- resentative of its employees in the appropriate bargaining unit with respect to wages, hours of employment, bene- fits, and other terms and conditions of employment for at least 9 months from the date it resumes bargaining with said Union during which its majority status cannot be questioned, and embody any understanding reached in a signed, written agreement. The appropriate unit is: All production and maintenance employees includ- ing regular part-time employees of the Deister Con- centrator Company, Inc., employed at its Fort Wayne, Indiana, plant exclusive of all office clerical employees, laboratory employees, technical employ- ees, salesmen, all professional employees, all man- agerial employees, all guards and all supervisors as defined in the Act. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of moneys due under the terms of this Order. (f) Post at its place of business in Fort Wayne, Indiana, copies of the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by its au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2' In the event that his Order is enforced by a Judgement of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ait to a Judgment of the United States Court of Appeals nforcing an Order of the National Iabhor Relalion, HBoard " 398