Sca Services Of Georgia, Inc.

830 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD SCA - Services of Georgia, Inc. and - Truck Drivers and -Helpers • Local Union -No. 728. Case 10- CA-16056 28 June 1985 - DECISION AND ORDER -By CHAIRMAN DOTSON'AND MEMBERS HUNTER AND DENNIS On 27 May 1982 Administrative Law Judge Howard -I. Grossman issued the attached decision. The Respondent filed exceptions to the decision and a supporting brief. On 22 December 1982 the Respondent filed a motion to reopen the record and accept previously unavailable and newly discovered evidence, with attachments. The Respondent contended that the credibility of General Counsel witnesses Pierce Jones' and Johnny Rudd's testimony given in this proceeding was materially affected by their recent convictions for Federal crimes arising out of their strike activity at the Respondent's facility in 1980. By order dated 7 February 1984, later corrected 13 February 1984, the National Labor Relations Board granted the Respondent's motion. The Board remanded the instant proceeding to the judge for -the purpose of reopening the record to receive the newly discovered and/or previously unavailable evidence concerning the issues raised by the Respondent's motion, reconsidering his credibility resolutions in light thereof, and prepar- ing a supplemental decision containing findings of fact, conclusions of law, and recommendations con- cerning the issues raised. On 26 April 1984 the judge issued the attached supplemental decision in which he resolved the credibility of witnesses and reaffirmed his findings of fact, conclusions of law, and recommended Order as set forth in his prior decision . The Re- spondent filed exceptions to the supplemental deci- sion and a supporting brief. The Board has considered the decision, the sup- plemental decision, and the entire record in light of all the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Respondent and the Union have a long his- tory of collective bargaining affecting certain em- ployees at the Respondent's Atlanta, Georgia facili- ty.' Their most recent collective-bargaining agree- r The unit employees represented by the Union include truckdnvers, compactor installation and maintenance men, mechanics' helpers, contain- er repairmen, laborers, and tire repairmen. ment covering these employees expired 8-Novem- ber 1979. Commencing ' in October 1979, the Re- spondent and the Union became engaged in new contract negotiations. Their efforts, however, to re- negotiate the contract failed. When their negotia- tions ceased in July 1980,2, a new contract still had not been reached. After the 'parties' contract ex- pired in 1979, the Respondent discontinued remit- tance of union dues and terminated the union dues- checkoff procedure on 31 January. About 3 months later, the-Union and approximately 22 employees struck the Respondent's facility. During the strike, which lasted from 5 May through September, the Respondent hired replacements for -the strikers. On various dates in August through November, strik- ers Hill, Simmons, Harris, Thompson, Lane, and Johnson offered to. return to work. With the excep- tion of Johnson, who was reemployed by the Re- spondent on 10 August 1981, none has returned to work. The acts alleged as unfair labor practices in this proceeding involve the Respondent's bargaining conduct since 5 March; the nature of the 5 May strike; and the Respondent's failure to reinstate the six strikers named above; and approximately 12 in- dividual conversations, occurring in April through July, between various employees and Charles W. Langello, who was the Respondent's plant manager of its Atlanta facility at the time. The judge found that the Respondent had violated Section 8(a)(5) by bargaining with the Union since 5 March without any serious intention of reaching agreement. The judge concluded that the Respondent's bad-faith bargaining primarily caused and, in fact, prolonged the 5 May strike-thus, an unfair labor practice strike from its inception. In light of this finding as to the nature of the strike, the judge found that the Respondent had violated Section 8(a)(3) when it refused to reinstate the six strikers in question upon their unconditional offers to return to work.3 The All dates are in 1980 unless otherwise indicated ` a The instant charge was filed 20 July 1981 and alleged that the Re- spondent had refused to bargain in violation of Sec 8 (a)(1) and (5) Sub- sequently, a complaint on the charge issued and included an allegation that the 5 May 1980 strike was an unfair labor practice strike On 20 May and 2 July 1981, respectively, the charge and the outstanding complaint were amended, alleging that the six strikers in question,,as unfair, labor practice strikers, were not reinstated , upon their unconditional offers to return to work in violation of Sec 8(a)(1) and (3) The judge found that the amendments to the charge and the complaint were proper and found the violations of Sec 8(a)(1) and (3) as alleged As noted infra, we find that the strike was not an unfair labor practice strike In view of this find- ing and the fact that the General Counsel litigated the reinstatement issue solely on a theory that the strikers were entitled to reinstatement because they were unfair labor practice strikers, we need not pass on whether the amendments indeed were proper In doing so, we find it unnecessary to pass on the judge's discussion and analysis on this matter 275 NLRB No. 120 SCA SERVICES OF GEORGIA 831- judge also found that the Respondent had violated , drop its proposals for stronger contract terms :if the- Section 8(a)(1) by various statements made , by,, Respondent :signed a contract . 4 No contract was former Plant Manager Langello to' employees .. in signed. Finally, Jones testified that at the 1- July the conversations previously noted. bargaining session Langello did not offer to com- A. We disagree with the judge that the , Respond- promise the wage retroactivity -issue. ent violated Section 8(a)(1) and (5) of the Act. On the -other hand, Langello denied ,that he ever Except for his separate 8(a)(1) findings , the judge's said that he would sign a contract only if the union conclusions concerning bad-faith , bargaining were dues-checkoff clause, were . removed., According to largely based on his crediting of Pierce Jones, the Langello's testimony,- the matter-preventing agree- Union's chief negotiator, over former Plant Manag- ment for a time was the issue of company collec- er Langello, , the Respondent's chief negotiator,' tion of past union dues,,not 'union dues checkoff -in concerning what transpired during the parties' general. According to Langello,- - until' April the' 1979-1980 contract negotiations . ; Based ' on Jones' Union insisted on the company 'collection of back testimony, the judge found that the Respondent , union dues. Contrary to Jones' account, Langello who had agreed to a dues -checkoff clause in its testified that the parties' discussion - on 5 March prior collective-bargaining agreement with the concerned . the -collection of : past dues for remit- Union, refused to include such provision in a new tance to the- Union. and not - the subject,of having a agreement with the -Union, on the -sole ground that union dues-checkoff provision `in ;.the contract.5 - it had signed contracts elsewhere . without such a Langello further., testified -that in_ April. the ;':Union. clause. For the judge, the crux of the Respondent's dropped :its, demand. for-. past -dues collection ,by the= bad-faith bargaining was the Respondent's refusal Respondent. to agree to a checkoff in the contract . , - According to Langello, the primary stumbling' According to Jones, ..Langello, for the first time block to agreement between -the.. parties, then at the 5 March -negotiations, refused to include a became the- issue of_retroactivity- of. the 1979- wage union dues-checkoff provision in the , contract. In, increase. s; Langello .; testified .,that; , besides the dis-'- fact, Jones testified that , Langello , conditioned cussion on past dues";collection,. the 5 March meet-- agreement on the elimination of.the checkoff ,provi- ing covered , the Union's, demands pertaining to sick, sion. Jones further testified that this condition was leave, benefits, increases. in. insurance and - pension added when, he told Langello that the Union ,would plan,benefits, and retroactivity of ;the:1979 .wage..in- - accept the Respondent's last wage offer , and ' the crease. The,Union, according to - Langello,r sought rest of the contract as is." full retroactivity of the," wage increase, w_ hich Jones' testimony reflects that the Respondents' 5, amounted to about . a 4-week period . Then, • on March position on checkoff was a .,dramatic Mayaccording to Langello's ,testimony, the Union change. Jones testified that, early in , the parties' increased ' its bargaining; demands and commenced bargaining, the Respondent - had agreed to renewal the 'strike when' he did not sign a contract on the of the prior contract's checkoff provision.t Accord- Union's terms. ing to Jones, in December 1979, Langello even had "Finally, in `sharp contrast to Jones ' account, Lan- agreed to expand - the checkoff coverage to include Bello, testified that, at the 1 July, negotiation "session "drive checkoff," a collection of employee funds , with'-the Union,, the' only issue separating the par, for union political purposes . ties ' was, a retroactive pay raise, not union dues ' Following the 5 March change in position, '-Jones checkoff. According to! Langello , no agreement testified that Langello again insisted on no checkoff was ' reached 'that''day.because the' Union insisted on " at the negotiation session held 9 April , and said full retroactivity, while the:Respondent'had offered'- that he was not to-sign a contract with such , Prow- retroactivity ' for a '2-week period only: Sion. According . to Jones, - at this , meeting;. - the In ' cr`editing` -Jonesversion--of the° parties' -bar-a Union persuaded : Langello to agree to checkoff; gaining ' conduct, the` judge `first-examined- the -plau- and 'Langello" then agreed to get .a contract: togeth-.: sibility '-of•-L- arigello's version' of the . same F'events.,; er. for., the next bargaining , session;, ^_ . The judge 'attacked = ass "incredible L angello''s as Jones testified' that Langello's position ' on'check=' sertion that back dues checkoff was at issue. -The' off changed again .shortly .thereafter; and -,has-,rd- ., mained the • same since'. -Jones. -testified that;.-,in a ' ° -The Umon'I demands were for increases in' certam. ecorioimc benefits- subsequent - telephone conversation Langello ' stated -, forIgmployees and, were ubmitted to Langello by letter-dated 5 May « ' ,; Langellotestifed that theRespondeni's l5•December f979 contract that the Respondent was•not going'to `have a con- offer had included unron du -es-=and' dove=checkoff `proosals; Ebut -this' tract in Atlanta with a checkoff clause," inviting offer had been rejected by the Union in December 1979 e The Respondent unilaterally implemented a wage increase in mid-De- cember 1979, approximately 4 weeks -after the'parties' • last contract had just before the '5" May strike, the Union offered, t'o expired `'' 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD judge found that Langello had "manufactured" this issue because, in April, the Union had agreed to collect the back dues, according to Jones. The- judge also found "incredible" that Jones -would refuse the Respondent's proposed pension plan in- crease, as claimed by Langello, -when according to Jones, the Union had proposed a lesser increase. The judge found that Langello's testimony that the Union continued to demand retroactivity of the wage increase-was "implausible" because of Jones' testimony about the 5 March meeting and Langel- lo's testimony -about the 9 April meeting. The judge found that, in - the - 11 April letter to the Union, Langello falsely stated that the Respond- ent's 15 December 1979 offer was conditional on acceptance by that date. The judge found no dis- cernible business reason, contrary to Langello's tes- timony, that the Respondent could not' -have en- tered into a contract with the Union in March or April on the terms offered by the Respondent in December 1979. Langello's reasons for withdraw- ing the December 1979 offer were rejected by the judge because no documentation was offered to support these reasons and because the Respondent had implemented a wage -increase in December 1979, thereby increasing its own business 'costs. The judge further found Langello's testimony on the combined subject of checkoff, drive checkoff, and back dues checkoff was "hopelessly confused." He finally found no reason why Langello was of- fering to compromise the retroactive pay issue be- cause, according to Jones, that issue had already been resolved. The judge next examined Jones' testimony itself. In assessing Jones" credibility, the judge found that it was not damaged or weakened in any respect be- cause, while on direct examination, Jones had re- ferred to writings appearing on the palm of his hand which pertained to the subject of his testimo- ny.' The judge next found that Jones' testimony on the subject of checkoff was "replete with realistic quotations of the actual conversations" with Lan- gello, pointing out how the Union could not sign a contract without a checkoff clause, as opposed to Langello's testimony which consisted of a simple denial that he said he would never sign a contract with a checkoff clause. The judge found that Jones' testimony concerning these prestrike discus- sions with Langello on the subject of checkoff was corroborated by General Counsel witness Charles Wright. The judge further found that Jones' testi mony that Langello wanted no checkoff because the Respondent had negotiated a contract in Flori- da without a checkoff clause was corroborated by Langello's testimony that he had negotiated two contracts with the Teamsters in Florida. The judge found that the Respondent had terminated checkoff in January, despite Jones' protest, which demon= strated the Respondent's concern over this issue. The judge also-found Jones' testimony concerning the parties' 1 July bargaining session that Langello refused to sign a contract on any terms was cor- roborated by General Counsel witnesess Charles Wright, George Lane, and Milton Hill. Thus, because he discredited Langello, found Jones' testimony on key conversations replete'with realistic quotations, and Jones' version of the bar- gaining sessions corroborated by Wright, Lane, and Hill, the judge concluded, in his supplemental deci- sion, that Jones' recent convictions for Federal crimes did not change his conclusion that Jones was testifying truthfully about the bargaining. We, disagree. It is well established that the Board will not overrule an administrative law judge's credibility resolutions which are based on his observation of demeanor unless a clear 'preponderance of all the relevant evidence convinces us that they are incor- rect.7 However, when an administrative law judge bases his credibility resolutions on factors other than his observations of the witnesses' demeanor, we may independently evaluate the witnesses' credibility-" As noted above, in the instant case, the credibility resolution involving Langello and Jones clearly was based on factors other than the judge's observation of demeanor. We reject the judge's bases for crediting Jones. First, our examination of the record shows virtual- ly no corroboration of Jones' version of the bar- gaining sessions with the Respondent. Employee Hill, who served on the Union's negotiating com- mittee and attended all the negotiation sessions, was not called upon to give aI detailed account of the contract negotiations providing -corroboration of Jones' version even though the General Counsel had Hill testify at some length on other matters. Besides Jones, only employee Wright, who was the alternate steward and served on the Union's negoti- ating committee, attempted to cover the breadth of the contract negotiations. Even then, Wright failed to testify about the critical :5' March session, when, according' to Jones, Langello drastically changed his',position on checkoff.` Thus, Jones' account of the 5 March' session,- which constituted one of the key conversations "replete ' with' realistic quota- tions" as perceived ' by the. judge, stands uncorro- borated. In fact, Wright testified that the issue of checkoff had not come, up until the parties' 9 .April ' Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951), El Rancho Market, 235 NLRB 468 (1978), enfd. mem 603 F 2d 223 (9th Cir 1979). 8 Colson Equipment, 257 NLRB 78 (1981) SCA SERVICES OF GEORGIA 833 negotiating session. Wright also gave no testimony with respect to the parties' negotiation sessions which were scheduled or held on 16 April and 28 April. The General Counsel admittedly called Lane as a witness for the sole purpose of addressing the issues relating to his reinstatement offer. On cross- examination, Lane,, however, testified concerning only the 1 July bargaining session. As revealed by the record, Lane's testimony on the 1 July session was that he could not recall any of the specifics of that meeting. Another key conversation, for the judge was the parties' 1 July negotiation session. Jones did not testify on direct examination about the 1 July ses- sion at all. On cross-examination, Jones testified about the 1 July session only to the extent that he denied that Langello ever offered to split the' dif- ference on the wage retroactivity issue. Secondly, Jones' testimony is not corroborated by the Union's 5 May letter and the picket sign lan- guage. If anything, this documentation tends to erode his claim that checkoff was the issue separat- ing the parties from reaching agreement. The 5 May letter signed by Jones himself does not ad- dress the checkoff issue at all but rather presents demands for 'increases in certain economic bene- fits-wages, pension, sick leave, and retroactive pay-to settle the strike which supposedly com- menced because of the Respondent's stand on the checkoff issue. The language on the picket signs displayed during the Union's strike, with one ex- ception, 'failed to ' include any - reference to the checkoff issue, even though, again, this was the issue supposedly causing the strike and the picket- ing, according to Jones. ' Finally, we find that the judge, in assessing Jones' credibility, failed to give sufficient weight to Jones' recent convictions for Federal crimes. On '7 December 1982 Jones was found guilty on three separate counts of a Federal indictment filed 16 March 1982 and tried before the United States Dis- trict Court for the Northern District of Georgia. Similarly charged were two other General Counsel witnesses, Milton Hill and Johnny Rudd.9 Jones was convicted of conspiring with these individuals to knowingly and _ willfully withhold information, to make false and fictitious oral and written state- ments; and to furnish and exhibit misrepresented identification, intended or likely to deceive for the purpose of obtaining explosive materials, that is, dynamite and electric blasting caps; to willfully and knowingly transport, ship, and cause to be trans- ported and received in interstate commerce explo- 9 Rudd was found guilty on several counts of the indictment, however, because of Hill's death, the indictment against him was dismissed . before Hill could stand trial. sive materials, that is, dynamite and electric blast- ing caps; to willfully and knowingly transport, ship, and cause to be transported and receive in interstate commerce explosive materials, that is, dy- namite and electric blasting caps; to willfully and knowingly make firearms, that is, destructive de- vices; to-willfully and knowingly receive and pos- sess firearms, that is, destructive devices; and to willfully, knowingly, and maliciously damage and destroy by means of an explosive the buildings, ve- hicles, and other real and personal property of the Respondent . As indicated by the judge, in agree- ment with the parties' stipulation, Jones' illegal acts are punishable by imprisonment in excess of 1 year. We also note that these illegal acts were directed at the Respondent's operations during the strike activ- ity at the Respondent's facility in 1980, apparently between 20 June and 24 June. Given the nature' of the illegal acts for which Jones was convicted, in particular, making false and fictitious oral and written statements and com- mitting other acts intended or likely to deceive for the purpose of accomplishing his illegal aim, we find that Jones' veracity in these trial proceedings is highly questionable.' o On the basis of the above findings, we are unable to accept the judge's crediting Jones over Lan- gello. I i In this regard, we have determined that there is no basis in the record from which he could conclude that either Jones or Langello is more credible as 'to the substance of the parties' contract negotiation sessions. Irrespective of Langello's anti- trust violations,12 we observe that the'record pro- vides almost no corroboration of Langello's version of the events pertaining to the parties' contract ne- gotiations . The General Counsel, however, has the burden of establishing allegations by a preponder- ance of the evidence. Because we find Jones' testi- mony not credible based on our independent analy- 10 Contrary to the judge, we are also troubled by Jones' use of "notes" on the palm of his hand , although this factor-absent the other evidence discussed above-would not be determinative as to Jones' overall credi- bility 11 Our dissenting colleague, in adopting the judge's crediting of Jones' testimony, relies on the court's opinion in Ewing P NLRB, 732 F 2d 1117 (2d Cir 1984) That case is clearly distinguishable from the present case Thus, in Ewing, unlike here, the court noted that the testimony of the witness involved was corroborated by another witness who was not asso- ciated with either party Additionally, Ewing did not involve the factor, present here, of the witness' conviction for crimes involving false state- ments and other acts intended to or likely to deceive iz The judge credited Jones without consideration of Langello's con- viction for certain antitrust violations, which are more fully described in the judge's supplemental decision We, likewise, find it unnecessary to pass on such matters in that they have no bearing on Jones' credibility. For this reason, we also find it unnecessary to rely on the judge's finding in the supplemental decision that Langello's conviction was predicated on actions involving "dishonesty or false statement " Similarly, we do not reach the Respondent's argument that Langello's conviction was improp- erly made a part of the record '834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sis of the record; the General . Counsel cannot rely on Jones' testimony ' to prove bad-faith bargaining on the part of the Respondent . We shall, therefore, examine the remainder of the -record and the judge's findings 'to ascertain if the General Counsel satisfied his burden •of• proof. • As previously noted, the judge viewed the par- ties' 1 July negotiation session as important evi- dence supporting' the '8(a)(1) and (5) violation. Es- sentially based on testimony of Wright, Lane, and Hill, the . judge Tound •that the 1 July negotiation session ' was` the `'last and--'compelling evidence" showing ' that the Respondent -did not have a seri- "ous'intent to adjust differences and•reach an agree- ment. We disagree. The judge found. that, concerning the -1 July ses- sion, Wright testified that Jones told Langello that he • would try to- .get a 'contract accepted -without the checkoff,: which • had; never been done - before. Wright- then testified' 'that' "Mr. Langello didn't seem`'accepted for' that'-'at all:" The judge" found Wright's testimony'on this matter' to be "`gambled." Nevertheless; -the judge - interpreted' Wright's testi- mony as -meaning that, by .the -time ' of the 1 July meeting, Langello- was , not willing to ` sign . a con- ,tract-even though the : Union was, -then willing to eliminate the . checkoff clause despite "the -apparent settlement 'of 'all -known ' disputes "between the par- ties. -Both General , - Counsel I witnesses -Hill and Lane, who had • attended - the" 1 July, session,= were questioned in these proceedings about that ineeting; however, -'neither was : asked to give his own ac- count:' Thus, neither-- corroborated . Wright's testi- mony 'detailed above.` =: t= Cdntrary-to-the judge, we^ find 'that Wright's tes- timony -'is • too ,'ambiguous: and • conclusionary , 'with- out -any indication ' as' to ='the'- context ' of, the state- inents and without corroboration . from others who attended the ,1 July-.meeting. These two . statements related by Wright have been isolated from :the overall discussion : which took place at that" meet- ing.- Wright's comment -about Langello is _ nof even ,a-statement attributed to Langello, but howl Wright :.perceived ' the situation. ,-Without the context -of 'these statements, we-,:are ;unable., to&ascribe'to, it the meaning found iby,. the judge . ; ; • ; ;,, " -' 'Additional :-=evidence -of% ,bad-faith bargaining =relied- ow by -the : judge included Ahe:,Respondent's rigid"- position 'on =its 'wage :proposal;."the ` Respond- ent's cancellation fof.,the 16YA pril .negotiation meet- ing, "and ' the'- Respondent's.- statements away c-1from the bargaining.table .which-fthe judge _•found -consti- tuted- separate violations of "Section; 8(a)(1). As : re- vealed by the record , the Respondent admittedly took a rigid position . on, the wage issue ..throu'ghout contract negotiations . In October " 1979,' very `- early in negotiations, the Respondent offered - wage in- creases for each year of a 3-year contract, which were less than what the Union had proposed. The Respondent then adhered to "its October 1979 wage offer throughout negotiations and, later , unilateral- ly implemented it in December 1979, when the Union rejected it. As further shown by the record, from October 1979 through 5 May, the commence- ment 'of the strike, the' Respondent regularly met with the Union - to discuss contract issues, except in January .and February. There were no-meetings in those 2 months because of Jones' 'hospitalization; however, Langello and Jones conferred by tele- phone concerning' contract issues during this period. In April, negotiation sessions were held on 9 and 28 April. -According to Jones' version, the negotiation session scheduled for-16 April was can- celed by Langello (after the Union had, waited 3 hours) -because .he was not ready to proceed with negotiations that day . After the strike began, the parties met one time on 1- July; as previously noted. We'-find that the Respondent's wage proposals and cancellation of one "bargaining session do not constitute indicia of bad-faith bargaining on the -part= of the Respondent . The Act does not require .any party to make concessions or yield any posi- tion that is" fairly maintained . The Respondent's presentation of its final position on wages -early in "negotiations does not necessarily cast aspersions on .the Respondent's bargaining conduct, especially since -"the Respondent's proposed wage offer was for an - increase. Likewise, mere cancellation of one negotiation . session in the context of numerous other bargaining • sessions does not prove that the Respondent failed to satisfy. its duty to meet at rea- sonable times -with the Union. _ - • The judge also found additional evidence of bad- faith ` bargaining . on the basis of the Respond'ent's statements away from the bargaining table. - As -noted infra, we have adopted two of the judge's 8(a)(1) findings, both of which were statements to employee Simmons " made on 1 April and 5 May. Those two violations by themselves are not suffi- cient' to support -a finding of bad-faith bargaining in violation"of Section • 8(a)(5) and ,(1). • As we ` find no evidence that the Respondent failed to bargain m ' good ' faith, we find no basis for concluding on the strength alone of the ` Respondent's statements away from the bargaining table that otherwise lawful conduct as, converted into a - Violation -,of ' 'Section -8(a)(5) and (1). Baldwin County Electric Mem- bership Corp., 145 NLRB 1316 (1964).13 i3 Frontier Dodge, 272 NLRB 722 fn 2 (1984) _ SCA SERVICES OF GEORGIA' - 835 Thus, based on our overall review of the record, we find that the General Counsel has not satisfied his burden of proof. Accordingly, we shall dismiss the 8(a)(5) and (1) allegations on the ground of fail- ure of proof. See B. J. & R. Machine Co., 270 NLRB 267 (1984). - B. We agree with the judge that the Respondent violated Section 8(a)(1) of the Act when Plant Manager Langello told employee Simmons. on I April that a vacation money advance could not be given because of possible imminent strike activity14 and when Langello threatened Simmons on 5 May by stating that the Respondent would not rehire those employees who engaged in strike activity. Contrary to the judge, however, and for the rea- sons set forth below, we find that the Respondent did not violate Section 8(a)(1) of the Act in. any other respect. 1. The judge found that the Respondent violated Section 8(a)(1) when Langello told employee Ben- jamin that unit employees did not receive a retro- active pay - raise because , Union Representative Jones failed to "settle the contract" by 15 Decem- ber 1979. This conversation between Langello' and Benjamin occurred sometime in mid-April. The test for determining whether conduct is violative, of Section 8(a)(1) is whether such conduct reasonably tends to interfere with, restrain, or coerce employ- ees in the exercise of their Section ,7 rights under the Act. El Rancho Market, 235 NLRB at 471. As found by the judge, the record'shows that the em- ployees had voted in December 1979 to reject the' Respondent's wage offer which included a retroac- tive raise. Hence, the employees, including Benja- min, were aware of the real reason they had not re- ceived a retroactive raise. In these circumstances, we therefore find that Langello's statement did-not violate Section 8(a)(1). Accordingly, we shall dis- miss this allegation of the' complaint. 2. We further disagree 'with the judge's finding that the Respondent violated Section 8(a)(1) when Langello told employee Benjamin in mid-April that the Respondent would sign only the kind of con- tract that the Respondent wanted to sign.'- We regard such a statement as an innocuous expression of the Respondent's views concerning its bargain- ing position 'and therefore ' privileged under Section 8(c) of the Act, for this 'is not ' a"statement • where the Re"spondent 'is indicating, that it would not sign 14 At times in his'decision, the judge incorrectly referred to Simmons' request as a request for "a loan against his-.pension fund equity" We therefore do not adopt any of his findings pertaining to a pension fund equity loan for Simmons We also do not find a separate 8(a)(1) violation in that Simmons did not receive the vacation money advance because the record does not contain sufficient evidence to show that the Respondent had honored such requests from other employees in the past • . any contract with the Union. 15- The cases cited in footn'ote,32 of the judge's decision are-therefore in- apposite. Accordingly, we shall dimiss this allega- tion of the complaint as well. - 3. Along the same lines, the judge found that Langello earlier had told Simmons that he would not sign - a, - contract with a checkoff ' clause. The judge, , relying on Taylor-Dunn Mfg. Co., supra, concluded . that Langello's statement- violated Sec- tion 8(a)(1). We cannot accept the judge's findings here. First, the record shows that Simmons was the initiator of this conversation when he asked Lan- gello whether .he was going to sign acontract. As shown by the record, Simmons had served as stew- ard or assistant steward since 1971 and currently was serving on the Union's contract negotiations committee. He questioned Langello after the em- ployees started to strike on 5 May, after 7 months of contract negotiations between the parties had ex- pired,- with a background of successive collective- bargaining agreements between the parties having been reached over the years . By contrast, the state- ments in Taylor-Dunn Mfg. , Co. occurred during- the course of a union organizing campaign . There, the employer, in . unsolicited preelection communica- tions to its employees, repeatedly told them it would never sign any contract with the union in- volved: These communications contained evidence of strong union animosity, unlawful threats, and unlawful promises. Thus, the judge's reliance on Taylor-Dunn - Mfg, Co., supra, is misplaced. The statements in question in Taylor-Dunn Mfg. 'Co. in effect constitute an anticipatory , refusal to bargain with the union , whereas the statement attributed to Langello occurred after bargaining between the parties,, and in `'the context of a long history of col- lective bargaining., Accordingly, Langello's com- ment is permissible under Section 8(c) of the Act, and . we shall dismiss this allegation of the com- plaint. - 4. The judge found that Langello unlawfully in- terrogated Benjamin when, during mid-April, 'he asked -Benjamin whether he would be able to pay his union- dues if 'the Respondent 'did not deduct them. As revealed by the record, Langello came into the dispatch office that day, where Benjamin and 'two other employees,-John Jamieson and Mac- Arthur "Evans,' were, and spoke to them as was Langello's usual practice. Benjamin was the only employee-who testified concerning this talk with Langello. Benjamin testified that. somehow the sub- ject of the' contract came up during the talk. Benja- min gave -no information -as to how or by whom. 15 Cf Embossing Printers, 268 NLRB 710 (1984), Taylor-Dunn Mfg. Co, 252 NLRB 799 (1980). 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benjamin -further gave ..no testimony as to what preceded Langello's inquiry into union-dues. Ac- cording to Benjamin, in response to Langello's in- quiry, he told Langello that 'he would be -able to pay his dues without deduction by the Respondent. Benjamin gave no evidence as to what, if anything, the other two employees may have said. Benjamin did testify that,. in response to his remark, Langello said that-he belonged to a country club and they did not deduct his' dues and' that the had to pay them. Benjamin testified that, at that point, employ- ee John Jamieson said that the next thing they would know, there would be a-payroll deduction to buy groceries. On cross=examination, Benjamin testified 'that this was a ' casual conversation with Langello, and' that the latter's mood was pretty "easy-going." In view of all of the above surround- ing' circumstances, in' the absence of threats or promises; we 'find that Langello's inquiry was' non- coercive. Thus, Langello's inquiry did not tend to convey any displeasure on the Respondent's part with the remittance of union dues nor reasonably tend to interfere with'Benjamin's right to engage in union activity: See, e.g-., Broadway, 267 NLRB 385, 405-406 (1983). Accordingly, we shall dismiss this complaint allegation. 5. The judge found-'that on 16 April Langello told employees Johnson, Hill, and Clark that -they could make the same money working by the piece rather than by the' hour, and that they did not need a' union to keep, their: jobs or to negotiate raises. The judge concluded that, these statements by Lan- gello 'amounted to an offer to negotiate directly with ,,employees, thus bypassing the Union, and thereby violative 'of Section 8(a)(1), citing 'Hick= man,` Williams & Co., 240 NLRB 81, 84 (1979). ,Contrary to the judge, we find that'the 'situation in Hickman, where the employer unlawfully' invit- ed direct dealings in place of collective bargaining, significantly different from the instant situation. In' Hickman, the employer listed the benefits employ- ees already enjoyed without union representation in the context of unlawful interrogation of employees' union activities and clear antagonism toward the ongoing union campaign. Here; based ,oin'Johnson's account, the version credited by the judge, there, is no-, interrogation and union animosity, plus, the record, reveals a climate of a preyious good collec- tive-bargaining relationship between the Union and the Respondent.- For these reasons, we -find that the instant situation, is more closely analogous to the employer's lawful discussion with employees.=re- garding the merits of unionization in Gerber Co., 270 NLRB. 1235 fn. 3 (1984). Accordingly, we do not adopt the judge's 8(a)(1)'finding in this-regard. 6. The. remaining independent 8(a)(1) violations found by the judge involved statements made by Langello - to strikers. Harris, Thompson, Benjamin, Simmons, Lane, and Rudd in the nature of ques- tions asking them to return to work. As found by the judge, most of Langello's solicitations to these strikers to return to work took place on the picket line, unaccompanied by - any promise -of -benefit. 16 The judge, citing Ramona's Mexican -Food Products, 203 NLRB 663, 682 (1973), further found that these solicitations were "reasonably calculated to under- mine the strikers' collective bargaining representa- tive, and to demonstrate that the Employer sought individual rather than collective bargaining," indi- cating that they were analogous to the solicitations of unfair labor practice strikers in Ramona's and thereby violative of Section 8(a)(1). 'We find Ramona's Mexican Food Products, supra, inapposite to the instant situation and, instead, rely on Romo ' Paper Products Corp., 208 NLRB, 644, 650-651 (1974), als'cited by the judge in his origi- nal decision.-.The record demonstrates that three of the six strikers who'' we're asked'to return to work had served on the Union's negotiations committee. As''evidenced' by the 1 July bargaining session,-the Respondent exhibited a willingness to resume nego- tiations with 'the Union during the duration of the strike,' and' the Respondent, in contrast to- Ramo- na's, had not engaged- in a' "pattern of illegal oppo- sition to the' purposes, of the-Act." Ramona's Mexi- can Food Products, supra at 682. For these reasons, noting-particularly that, we do' not find .these indi- viduals to 'be unfair labor practice' strikers, we find that Langello's `entreaties =were, permissible` under Section 8(c) ' of the Act. Moreover, unlike the judge,^we do not find coercive Langello's -inquiries into the duration' of the strike or how long the em- ployee would strike. As shown by the record,: we find 'these inquiries to be .directed to only 'two of the striking employees, Benjamin and Simmons, who both served on the Union's negotiations com- mittee.-•Given their context,. we find''them •to be variations of -a `solicitation to return- to work., 'In anyevent,- ;they' were :unaccompanied - by any 'threa`ts; ; promises `of benefits, or evidence of- ani- mosity_ toward 'the ongoing strike activity. Rather, they appear to be more in the nature of innocuous, casual pleasantries directed to known union sup- porters from a supervisor as he passed -the -picket line on his way to and from the plant. We- thus find `them to be-noncoercive i=n these circumstances: - , - , - -r_, , - . , ., 16 We find that the record evidence was insufficient to establish that the-possible-assignment of a particular truck to employee Thompson-con- stituted a promise ofbenefit . - .. r SCA SERVICES OF GEORGIA' ' , - 837 C. Contrary to the judge, we do, not find the 5 May strike to be an unfair labor practice strike. In view of our reversal of the judge's 8(a)(5) findings and the majority of his independent 8(a)(1) -find- ings, only two violations of Section.8(a)(1) remain. There was no evidence submitted that either of these two prestrike violations contributed to the strike. It is not enough that they., preceded the strike, rather, there must be a causal connection be- tween them and the strike. An unfair labor practice strike does not result merely because the strike follows the unfair labor practice. A causal connection-, the two events must be established.17 The record amply demonstrates that the employ-. ees and the Union decided to strike, because of the Respondent's bargaining positions and conduct, which the Union contended constituted bad-faith bargaining. The record testimony of several, of the strikers indicates that they struck the Respondent because the Respondent had not agreed to a con- tract. This conclusion is bolstered by; the picket signs displayed during the -strike and the Union's own 5 May letter notifying the Respondent that a strike was about to commence. As, revealed, by the record, the picket signs generally stated, with one exception as noted by the-judge, that the. employ- ees were striking for better wages and working conditions. The 5 May strike notification letter in- dicated only that the ,strike was considered because of bad-faith bargaining on the part of-the Respond- ent, then it listed certain economic demands, which were to be met by the `Respondent to. settle the strike. Thus, the Union's strike, settlement proposal dealt .with economic issues, not the resolution. of the alleged, unfair labor practices. Cf. Woods Schools, 270 NLRB 171, 178 (1984). ,Based on. the foregoing, we, conclude that neither of ,the Re= spondent's unfair labor practices, one of which oc- curred over, ,a month prior to the strike, caused or prolonged the strike. See Typoservice Corp., supra; 11 Tufts. Bros., Inc., 235 NLRB 808 (1978);;AMPAC, 259 NLRB 1075. (1982). Thus,_we,do not.adopt. the judge's, 8(a)(3), and - (1)_ findings :with respect: to strikers Hill, Simmons, , Harris, Thompson, , Lane, and. Johnson.18. 17 Typoservice Corp,! 203 NLRB-1180 (1973) . . - . , - 1`1 18 In view of-our conclusion and the, fact that, the General Counsel litigated -the striker reinstatement issues solely on a theory 'that, as unfair labor practice strikers, they- were entitled to immediate reinstatement ,upon their unconditional offers to return to work, we find it unnecessary to pass on whether, as,economic strikers, they should have been reinstat- ed or if Johnson's reinstatement on 10 August 1981 was proper 'AMENDED CONCLUSIONS OF LAW' Substitute the following for Conclusion of Law 3 of the judge's decision. "3. By engaging in the following conduct, the Respondent violated Section 8(a)(1) of the Act: "(a) Telling an employee that, a vacation money advance cannot be given because of possible immi- nent strike activity. - "'(b) Threatening not to rehire any employee who engages iii protected strike activity." Delete Conclusions of Law 4, 5, '6, 7, 8,' 9, and 10 and renumber the subsequent paragraphs. ORDER The' National Labor Relations Board orders that the Respondent, SCA Services of Georgia, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1-. Cease' and desist from (a)-Telling an-employee that- a vacation money advance cannot be given because of possible immi- nent strike activity. (b) Threatening not to rehire any employee who engages in protected strike activity.' . - . (c) -In . any like or 'related 'manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2; Take the following affirmative action neces- sary to. effectuate the policies of the Act. .,(a) Post at its facility,-in Atlanta, Georgia, copies of the attached notice marked "Appendix."' 9 Copies of the notice,. on forms provided by the Re- gional Director for: Region 10,, after, being signed by' ..the. Respondent's authorized representative, shall -be. posted' by. the Respondent immediately upon. ,receipt and maintained -for - 60 consecutive days, in_ conspicuous , places including all places where notices to employees are.customarily posted. Reas6^able. steps shall,be taken by the Respondent to ensure that' the notices are not altered, defaced, or covered by anyother material. i.. (tb) Notify the - Regional - Director in I writing within 20' days from'; "the date . of this Order what "steps the Respondent has taken to comply. 'MEMBER-DENNIS, dissenting.- - ' Contrary to my' colleagues, 'I would not reverse the judge's credibility resolutions. -In the original decision - the -'judge, thoroughly discussed the con- 'flicting testimony' On' remand as instructed, the 18 If-this,Ordeii is enforced by-a-Judgment of a 'United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read `Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor,Relations Board"'.,. , 838 DECISIONS ,OF NATIONAL. LABOR RELATIONS BOARD judge took into account Jones' conviction, but nev- ertheless adhered to the original credibility resolu- tions. I find the judge's reasons for crediting Jones and discrediting Langello sound and would 'not dis- turb them. See Ewing v. NLRB, 732 F.2d 1117'(2d, Cir. 1984). Consequently, as detailed below, I' would find that the ' Respondent violated Section 8(a)(5) and (3). _ ' . - Based on the judge's crediting, the relevant facts are as follows. The parties began bargaining 'for a new contract in October 1979 and continued well into 1980. In early bargaining _the Respondent agreed to renew and expand the prior contract's checkoff provision. On 5 March 1980, when the Union proposed dropping its demands and accept- ing the Respondent's 'latest proposals, the Respond- ent rescinded its agreement to include checkoff and' refused to sign any contract with a checkoff clause. Twice in April 1980 the Union repeated the offer to accept the Respondent's pre-5 March contract proposals, but the Respondent refused to sign a contract with a checkoff provision. On 5 May 1980 the Union again offered to drop its proposals and accept the Respondent's- pre-5 March proposals. When, the Respondent refused, 'the Union, stating that "we have ' no other alternative," left a list of contract demands and commenced a strike. An employer may engage in hard bargaining and- cannot .be compelled to agree to a proposal- or' make -a concession on mandatory' bargaining sub- jects. But, an employer may not suddenly alter its positions with the purpose of obstructing the bar- gaining process. Here, the Respondent reneged on a tentative agreement to include a checkoff provi- sion in the contract, refused to' sign any contract- with a "checkoff provision, and provided no sub- stantial reason for its change of position." I would find that the Respondent thereby frustrated the' bargaining process and breached its duty to bargain' in good faith. See Carpenters Local 1780, '244' NLRB 277, 281 (1979).2 I- would therefore find, in agreement with the judge, that the Respondent's thwarting the bargain-' ing process was a proximate cause of the strike, - and the strike was an unfair labor practice, strike from inception.' Accordingly, I agr'ee'- with the judge that the Respondent's refusal to reinstate i The Respondent said only that it had signed contracts elsewhere without checkoff clauses 2 In view of my conclusion 'that the Respondent's conduct regarding the checkoff provision was unlawful ,-I would find that the Respondent's remarks to employee Benjamin that the Company would sign only the contract it wanted and to employee Simmons that the Company would not sign a contract with a checkoff clause stated an unlawful bargaining position and therefore violated Sec . 8(a)(1) I would also find interrogat- ing Benjamin about whether he could pay union dues if the Company did not deduct them, as it is closely related to the 8(a)(5) subject matter, vio- lated Sec 8(a)(l) unfair labor practice strikers who made uncondi- tional offers to. return to work violated Section 8(a)(3), as the reinstatement issue was inextricably interrelated with the,8(a)(5) violation and was ex- haustively litigated.4 - 3 The Union's 5 May 1980.1etter does not suggest otherwise when viewed in context 'The Union repeatedly offered to drop demands and accept company proposals if the Company honored the tentative agree- ment to include a checkoff clause When the Company continued "insist- ing to refuse to bargain in good faith," the Union , as a tactical response, presented the 5 May letter and commenced sinking - 4 Contrary to my colleagues,, I also agree with the judge that the Re- spondent violated Sec 8 (a)(1) by denying employee Simmons a money advance, contrary to past practice, and by promising several employees better pay if they refrained from union activity I further agree with the judge that the Respondent's promising employee Thompson a specific benefit if he abandoned the strike violated Sec 8(a)(1) I agree' with my colleagues that the Respondent 's soliciting sinkers other than Thompson to return to work was not unlawful I further agree with my colleagues that, ' given the context , the Respondent's statement that employees did not receive retroactive pay because the contract was not-settled by 15 December 1979 did not violate the Act I also agree with the,violations my colleagues adopt - i APPENDIX NOTICE To EMPLOYEES' POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency- of the United States Government The National Labor- Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section' 7 of. the Act gives employees these rights. To organize To form, join, or assist any, union To bargain- collectively through. representa- tives of their own choice - • To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. . - WE WILL NOT tell an employee that a vacation money, advance cannot be given because of possi- ble imminent strike activity.' - WE WILL ' NOT .threaten not to rehire any em- ployee who engages in protected sirike activity. -WE WILL NOT in any like or'- related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed' you -by Section 1 of the Act. ` ` - ' - - SCA SERVICES OF GEORGIA, INC: SCA SERVICES OF GEORGIA 839 DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The original charge was filed on July 21, 1980, by Truck Drivers and Helpers Local Union No. 728 (the Union), and complaint issued on September 24, 1980, alleging that employees of SCA Services of Georgia, Inc. (Re- spondent) engaged in a strike about May 5, 1980, and that Respondent interrogated employees concerning their union activities; solicited employees to abandon the strike; attempted to undermine the Union by telling em- ployees that it was the Union's fault that they did not re- ceive a wage increase; promised them' better pay in return for their refraining from participating in union ac- tivities; and threatened employees by telling them (1) that it would withhold wage advances if they engaged in union activities, (2) that it would refuse to reinstate strik- ers, (3) that it would not sign a contract with a dues- checkoff provision, and (4) that -it would never sign a contract unless it was the kind of contract that Respond- ent wanted-all in violation of Section 8(a)(1) of the Na- tional Labor Relations Act (the Act). The complaint also alleges that about March 5, 1980, and thereafter, Re- spondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, and that all of Re- spondent's unlawful conduct caused and prolonged the strike. The amended charge was filed by the Union on May 20, 1981, and an amended complaint issued on July 2, 1981, alleging in addition that Respondent refused to're- instate six named employees, who had made uncondition- al offers to return to work, because of their union activi- ties, in violation of Section 8(a)(3) and (1) of the Act. A hearing was conducted before me on these matters in Atlanta, Georgia, on August 31 and September 31, 1981. On the entire record, including briefs filed by the General Counsel and Respondent, and on my observa- tion of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FACT I. JURISDICTION Respondent is a Georgia corporation with an office and place of business located at Atlanta, Georgia„where it is engaged in the collection, transportation, and-dispo- sition of garbage and refuse. Respondent has about 100 such facilities located through-the nation.' During 1979, a representative period, Respondent performed services valued in excess of $50,000 for- various enterprises en- gaged in the retail sale of groceries in Atlanta; Georgia, each of which had a gross volume of business in excess of $500,000 and received at its Atlanta, Georgia facility goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. Respondent is an ' Testimony of Charles W Langello, Respondent's vice president and general manager, and plant manager of Respondent's Atlanta facility dung some of the events being Iitigated.herem The pleadings establish and I find that Langello was an agent of Re- spondent and a supervisor within the meaning of Sec. 2(11) of the Act. employer engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings establish and -I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Prestrike Bargaining History 1. Summary of the evidence a. Initial contacts-the meeting at the Holiday Inn Following a Board election, the Union was certified in November 1970 as the collective-bargaining representa- tive of the employees in the unit alleged as- appropriate - in the amended complaint. Thereafter, Respondent and the Union were parties to collective-bargaining agree- ments, the last being a 3-year contract which, ended on November 8, 1979. About September 1979, the Union sent Atlanta Plant Manager Langello a letter stating that it was canceling the prior contract and wished to open negotiations. 'Union Business Agent Pierce Jones Jr. testi- fied that he scheduled a meeting with Langello,for Sep- tediber 26, but that the company- official canceled it a few minutes before the meeting. Another meeting was arranged for October 5, but Langello also canceled- that one about an hour before the meeting, according to Jones. Langello denied canceling, any meeting in September, and could not recall canceling one on October 5. He averred that he had a meeting with Jones in late Septem- ber or early October at the Holiday Inn near the Atlanta airport, and that Jones then told him that a contract could be obtained "without a lot of hassle" if the Com- pany would give Jones the sum of $15,000 for his own use. Jones agreed that he met Langello at the Holiday Inn, but denied the statement attributed to him. by Langello. Instead, according to Jones, the plant manager asked the business agent "what it would take" to settle the matter, and mentioned the sum of $12,000 to $15,000. Jones re- plied, according to his testimony, that Langello must be "kidding," and that the business agent was ready for re- tirement at $2000 per month. Jones testified that he re- ported this conversation to other union members. b. The early bargaining sessions The first bargaining session was held on October 11, 1979. Jones was the principal negotiator for the Union, while Langello represented the Company. Jones testified that the Union asked for a $1.50 hourly raise for each year offa 3-year contract, and that the Company initially responded with an offer of 55-cent, 40-cent, and 30-cent raises, respectively, for each year. Langello then said that he "might as well put it on the table here and now," and changed the offer to 70-cent, 55-cent, and 45-cent raises. Jones also.asked for improved health and welfare and sick leave provisions, and Langello replied that 70- 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 55-45 cents "was it," that the Union could take it and do whatever it wanted with it, but that "that's all of it." Jones also asked for a separate checkoff provision which, in addition to the regular provision, would permit the use of such collected funds for union political pur- poses (drive checkoff). A copy of the last contract was presented to the Company, with proposals for "no change" on many of its provisions. According to Jones, the second meeting took place on October 18, and the Union tried to get the Company to improve the pension and sick leave plans. Langello re- plied that he was not willing to change anything. "He just . . . said 70, 55, 45 [cents] was it.' That's all. If you want to do anything with any of that, you can take it out of here, but that's all I've got. That's all you're going to get." The third meeting was held on October 29, Jones testi- fied, and the discussion was similar to that of the second meeting, "just like a record playing over-and over, 70, 55, 45. That's it. He [Langello] was adamant about that." Langello testified that he could not remember the dates of the early meetings. He believed that the first-ses- sion took place in the middle or latter part of October. There was discussion of economic matters, but the Com- pany did not make any proposal at the first meeting. There was talk of "retroactivity," and the Union men- tioned the possibility of a strike if this was not obtained. The parties did, however, agree on many "no change" items. At the second meeting the Company made a 30-, 25-, and 25-cent wage offer, i.e., an hourly increase of such amounts for each year of a 3-year contract. It made other offers raising these amounts, and, at the third meet- ing raised the offer to 70 cents, 55 cents, and 45 cents respectively. However, on cross-examination Langello admitted that in his pretrial affidavit he stated that he made an offer of 40 cents, 30 cents, and 30 cents at the first session, and that the only other offer mentioned was the final one of 70 cents, 55 cents, and 45 cents. Langello asserted that the Company agreed to about 30 "no change" items at various times in the bargaining, and also made concessions to the Union on noneconomic matters. Thus, the Company agreed to "drive checkoff," although Langello testified that he did not know what it meant until the date of the hearing. He stated his belief that the Company had agreed to "seniority on the three year basis."2 He also asserted that the parties agreed "to give the Union 10 days for the grievance [and] allow the Company 10 days to respond."3 Langello also testified that the Company agreed to reduce the effective date of warning notices (for miscon- duct) from 6 months to 3 months. However, the Compa- ny resisted the Union's efforts to delete provisions allow- ing discipline without warning notices-as in cases of un- 2 Art VI, sec 6 1, of the last contract provided that seniority would be broken by more than a 2-year layoff (G C Exh 6) The Union pro- posed to extend this to 3 years (G C Exh 5) 'Langello's "notes" of the bargaining sessions mention sec 5, art VI as a "no change" item, but do not mention sec 6 (R Exh 5). a Art VII of the last agreement provides for a 3-step grievance proce- dure, with 2-, 3-, or 5-day periods for actions to be taken at the different steps (G C. .Exh 6) authorized removal of materials.' Respondent's vice president also said that he increased the posting period for new company rules from 5 ,days to 10, and agreed that drivers did not have to change their tires since they were not doing so anyway.5 The Union proposed that, in cases of military service, the Company pay the employee the difference between his military and company pay.6 Langello testified that this proposal was tabled because of his concern with its legality. He also said that, in the article on funeral leave, he offered to enlarge the definition of "immediate family" so as to include an. aunt or uncle, but that the Union refused.' The Union's request for additional sick leave was still under discussion, according to Langello. With respect to time off for union activities, Langello declared that the Union requested an increase from one to four employees, and that Langello agreed, provided that it did. not interfere with the, Employer's business, and -that no more than two employees in any one classifi- cation were absent. The.Union agreed, according to Lan- gello.8 • - Langello testified that he.made these- concessions to the Union, without getting anything in return, because they were not "problems for the Company to agree to," and because Jones told him that he needed some non- monetary concessions in addition to a satisfactory, wage increase. Jones, on the other hand, stated that the "no change" items were not really in,issue, and denied that the Com- pany-,,made any noneconomic concessions except for printing the Union's geographic area and granting drive checkoff, the latter of which, according to Jones, the Company later rescinded by -refusing to agree to any checkoff whatever. On cross-examination Jones denied that Langello of- fered to modify the probationary period, or to give higher pay to employees temporarily transferred -to a ° Art X of the old contract provided for a 6-month effective date for warning notices, and also provided that no warning notice was needed in cases of unauthorized removal of materials, dishonesty, intentional damage to company property, insubordination, negligence causing major damage, or drinking (G C Exh 6) The Union's proposal would have eliminated the unauthorized removal, intentional damage, insubordination, and negligence language from this article , i e, would have required warn- ing notices in such cases, and would have reduced the effective date of such notices to 3 months (G C Exh-5). Langello's notes say "no change" for all of art X (R Exh 5) s Art XIII, sec 13 2, of the old contract specified a 5=day posting period (G.C Exh 6) The Union proposed a change to 10 days (G C Exh 5) Langello's notes say "no change" (R Exh 5) ' The Union's proposal was limited to 80 days The old contract gave employees entering military service their rights under the Selective Serv- ice Act, and the Union's proposal would have extended this to reservists (G C Exhs 5 and 6) ' Art XXXI allowed 3 days of leave to attend the funeral of a member of the employees' "immediate family, " as defined therein, and that he be paid straight time for each working day lost up to 3 days, provided that he attended the funeral (G C Exh. 6) The Union's proposal would have added an aunt or uncle to the definition of "immediate family," and would have provided compensation for "8 and/or 10 hours" (G C Exh 5) 8 Art XVII of the last contract provided for paid time for "not more than one employee at any time' engaging in union activities (G.C Exh. 6) The Union's contract proposal would have increased this to four em- ployees (G C Exh 5) Langello's "notes" read, "Wording change to insure company being able to replace 4 men " (R -Exh. 5) SCA SERVICES OF GEORGIA _ 841 higher paying fob: There was confused questioning about whether Respondent reduced from 12 to 6 the number of months that a warning letter would be effective, with Respondent's counsel originally misstating the appropri- ate article, at the end of which colloquy Jones said, "We already had that." He denied that the period was re- duced from 6 to 3 months, and, on the contrary, testified that the Union agreed to a company proposal for in- creased discipline in cases of employees removing copper and metal from the refuse.9 Jones was asked whether Langello offered to pay employees who entered the serv- ice the difference between their service pay and what they would have earned with the Company. Jones denied this, and said, "That wasn't-that was in the agreement. We already had that in the original contract. He wouldn't agree to our proposals, so we_ went with what we already had."20 Jones was further asked, "Did not the Company agree to modify the contract for. granting one employee any time off to four employees?" He answered, "We already had that, too."i i He denied that the Company agreed to broaden the funeral leave privileges of the last agree- ment. 12 The union representative conceded that Lan- gel]o granted drive checkoff at one point, but averred that he later "took it back by destroying the entire checkoff." c. The November meeting and the retroactive wage increase issue As noted, the contract terminated on November 8. At a meeting on November 9, Jones tried to get Langello to agree to make any wage increase later agreed on retroac- tive to November 9, but the company representative pro- tested, that this would permit the Union to drag out the negotiations indefinitely. Langello did, however, agree that any subsequently agreed-upon pay increase would be retroactive from November 9 through November 30. Langello and Jones then signed a document, dated No- vember 9, 1979, reading as follows: SCA will pay to SCA employee's [sic] all monies agreed upon in the final contract, retroactive to No- vember 9th 1979 thru November 30th 1979. Any period past Nov. 30th is open for negotiations [R. Exh. 6]. Charles Wright, an alternate steward and member of the union negotiating team, testified about the November 15 meeting in which the Union attempted to get in- creases in the pension and insurance plans. Langello-re- plied that any other improvement would have to come out of what he had already offered. A meeting was scheduled for December 1, but was canceled by Langello. Because of this, the company rep- resentative agreed that any subsequent wage increase would be paid through December 15, conditional upon union acceptance of the Company's retroactive wage offer by that date. 9 See fn 4, supra. 10 See fn 6, supra 11 See fn 8, surpa 12 See fn 7, supra d. The December meetings and Respondent's 'final offer"-the Union's response Jones insisted that Langello's 707, 55-, and 45-cent pay offer was the last offer which Respondent submitted, and that the Company never changed from this position. Ac- cording to Jones, this proposal was put before the union membership'about December 2, and was rejected. Charles Wright testified that he attended a meeting on December 9 at which Langello offered an increase in the pension and savings plans, and an increase in the time for filing of grievances. However, Wright further testified that Langello later denied having made these offers. Langello testified that he submitted a final offer to the Union in the second week of December. A meeting had been scheduled, but it was held on the telephone, ac- cording to Langello. He testified that the offer consisted of the Company's 70-, 55-, and 45-cent wage proposal, various "no change" items from the former contract, and "non-military" (sic) changes about which there was no dispute, including funeral leave. The offer included checkoff, drive checkoff, and retroactive pay. The par- ties were still in disagreement about sick leave, the sav- ings plans, and the discharge article, according to the company representative. Langello was asked whether there was any deadline on the Union's acceptance of the company offer. "Only for retroactive pay," he replied. "They had a deadline of .midnight on the 15th. That was the only deadline." Jones, however, stated on cross-examination that he had a telephone conversation with Langello on Decem- ber .12 or 14 in which the company representative said that he was going to put the raise into effect unilaterally, whether or not the Union agreed. Charles Wright testi- fied that he listened to this conversation on an extension, and that Langello said that the • men had 'rejected his offer, and that they had nothing further to discuss. On December 17, 1979, Langello wrote Jones that the Company intended to implement its final offer effective December 7, "without prejudice to further bargaining" [G.C. Exh. 3]. Jones testified that some of the employees refused to cash their checks with the increase. Langello averred that 15 drivers called in "sick" about December 21, and that 19 out of his 21 drivers were absent the next day. According to the company spokesman, Jones told him that he knew nothing about this. e. Early 1980 bargaining-the termination of checkoff and asserted issue of collection of back dues There were no meetings -in January or February 1980 because of Jones' hospitalization. Langello and Jones conferred by telephone during this period . Langello as- serted that he offered an increase in the pension plan, but also testified that he continued to disagree with a change in the insurance program . On January 31, 1980, Langello wrote Jones that the Company was discontinuing check- off because expiration of the contract had removed any legal obligation for it to continue doing so (R. Exh. 2). Langello testified that Jones-called and said this was ille- gal. The Union's demand that Respondent collect "back dues" since January 31 then became an issue, according 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Langello. Jones denied this, and said that the issue was "created" by Langello. f. The March bargaining session The next bargaining session I was held on March 5. Jones testified that' he told Langello that the -Union would accept the Company's last wage offer, and the rest of the contract "as is.- Langello then said that he had another condition-complete elimination of checkoff from the. agreement. "You've got to be kidding," Jones said. "What are you trying to do, bust the' Union?" Lan- gello laughed, according to Jones, and said that he was not going to collect the Union's dues anymore. Jones argued that the International had contracts "with SCA" all over the country with a "security clause," and wanted to know why it had "to be a prob- lem" with Langello. He suggested that Langello might have a "problem" in his "home office," and offered to assist in this matter. According to Jones, Langello re- plied "in no uncertain terms" that he would. resign if his office ' ordered him to sign a contract with a checkoff clause. "Those were his exact words." ' Jones continued to ask for retroactive pay to Decem- ber •15, 1979. Since Langello had already given this raise effective December 7, Jones' proposal in effect meant about 4 weeks of retroactive pay, from the expiration of the contract on November 8, to December 7. Langello responded, according to Jones, , that this proposal was "off the board," since Jones had not accepted it as of December 15. Jones then said that he thought he could get the men to agree to eliminate retroactive pay com- pletely.- On cross-examination Jones denied that there was any. difference between the parties on this issue during the March 5 meeting. He suggested to Langello that they sign a contract with an agreement -to arbitrate the checkoff issue. Langello replied that he would not sign a contract with a checkoff clause. Jones said that Langello was "trying to bust the' Union," and Langello "'laughed again." On direct examination concerning the March 5 session, Langello initially attempted to testify with the assistance of handwritten notes purportedly made during the ses- sion. 'These were removed upon the General Counsel's objection, and Langello testified that the meeting con- cerned sick leave, an increase in insurance and the pen- sion plan, retroactivity of wages, and "the same issue of past dues checkoff." On cross-examination Langello tac- itly admitted that his handwritten notes of the session did not contain retroactivity of dues collection as a union demand. Langello also agreed that there was no such statement in his pretrial affidavit. •'Langello's final offer, 'according to his testimony, was the 70, ' 55, and- 45-cent raise proposal already. in effect, and -,the asserted,,noneconomic changes, - but with • no "wage'•increase; retroactivity for the 1-month hiatus from • November 8 to'December 7, and no collection of'dues. tLangello also said that he offered an increase in the pen- sion fund. On cross-examination Jones denied that the Union ever requested that the Company collect past union dues by checkoff. He acknowledged a union request for a $1 in- crease in the- Company's contribution to the pension fund, but asserted that Langello rejected this request. "They wasn't- getting but five a week," according to Jones.13 The Union's request for an increase in sick leave was also refused by Langello. Jones also denied on cross-examination that there was any issue concerning retroactivity of the wage increase by the time, of the March meeting. g. The April meetings Jones testified that 'the next bargaining session took place about April 9, and that Langello again said that-he was not going to sign a contract with a checkoff clause. Jones further affirmed that, later in- the meeting, the union representatives believed they had persuaded Lan- gello to sign a contract with a checkoff clause. Accord- ing to Jones, Langello said that he would get a contract together for the next meeting. Langello initially testified that the Union finally agreed in April to collect back dues. On the other hand, he' testi- fied on cross-examination that there was no issue con- cerning checkoff, and denied that he ever said that he would sign a contract if the checkoff clause were re- moved. The real issue, according to Langello on cross- examination, was "back dues checkoff." However, this contradicts his direct testimony that the Union had of- fered by then to collect the back dues itself. According to Langello, the Company in April offered to sign a con- tract with the 70-, 55-, and 45-cent wage offer, "and the nonmonetary items we had agreed upon," but without retroactive pay or collection of back dues. However, Jones demanded a still greater increase in the pension fund, and wanted "more than 7, 9, 11," i.e., more than an increase from $5 to $7, $9, and $11 over a 3-year con- tract. Jones also continued to demand the retroactive wage increase, according to Langello. Wright, on cross-examination, testified that there was discussion of checkoff at the April 9 meeting,14 but could not recall collection of past dues as an issue. "It seemed like that Mr. Jones -stated that wouldn't be a problem," Wright testified. On April 11, 2 days after the April 9 'meeting, Lan- gello mailed a letter to Jones reading as follows: This letter will serve as a response to your sugges- tion that you are now willing to accept the compa- 1 ny's-final offer of December 15, 1979 for settlement of'the collective bargaining agreement between the company and your union. As indicated however, the company's final offer of December 15, 1979 was -contingent upon your ac- ceptance of the company's offer by such date. You of course, rejected the company's. final offer. There is therefore no offer on the bargaining table for you to accept. We have been advised by our attorneys Elarbee, Clark and Paul that we have no legal com- pulsion' to 'enter into 'a contract with your union 18 Art XXXII of the last contract provided for an initial one-time em- ployer pension fund contribution of $300 for each employee employed on March 1, 1977, with a weekly contribution of $5 thereafter (G.C Exh. 6, p 19). 14 Wright said the date was April 5. SCA SERVICES OF GEORGIA 843 based upon the December- 15th offer because condi- tions have changed which presently render that offer inappropriate. We are, as always, ready and willing to discuss the terms which will form the basis for a new contract at any time. [R. Exh. •8]. In reference to this letter, Langello testified that there had been a change in circumstances since its offer to the Union in December 1979. Thus, officials of the Company had been indicted in connection with alleged violation of antitrust laws, competition had become "fierce," the Company had lost business, and fuel and tire prices had gone up. The December "sick out" had caused unrest, and there was "a difference in the whole attitude of the Company." According to Jones, the union committee arrived at Langello's office on April 16, the next agreed-upon date. After the committee had waited 3 hours, Lahgello came in and said that he had not had a chance to get the con- tract together, and saw no point in having a meeting. A bargaining session was held on April 28, according to Jones. The Union proposed to accept the_Company's 70-, 55-, and 45-cent wage offer. Langello "brought up two or three different things"-the retroactive pay issue was "out," and they were only talking about accepting the Company's -pay proposal (which had been in effect since December 7). Jones testified that the Union decid- ed to accept this "and settled the thing." Nonetheless, a contract was not signed that day. Langello testified that he was still ready to sign' a con- tract in April with the Company's proposed pay raise, without a retroactive pay raise, or past dues collection, but that Jones demanded a still greater increase in the pension fund. Jones further averred that he had a subsequent tele- phone conversation with Langello. He called him "off the record as a personal friend." "Chick," he told Lan- gello, "[Y]ou know we're not going to sign this contract without a checkoff. It's against policies. If I sign this contract in Atlanta without a checkoff, the whole world is going to come down on me." Langello replied, according to Jones, that the compa- ny had signed such a contract in Florida (i.e., without checkoff), and that they were not going to have a con- tract in Atlanta with a checkoff clause. (Langello himself testified that he had negotiated two contracts with the Teamsters in Florida.) Jones replied that Langello "had to be kidding," and the latter replied that he was not- the Union could strike if it wanted to. "I don't ' see any point in striking," Jones replied. "We're not talking about striking. We're talking about accepting your proposal and_ leaving everything as is." Langello replied. that he was not going to sign a contract with' a checkoff'clause. 15 Jones responded that if the ' Union went "to the strike thing," he 'would have to present a new proposal, and said that he would see Langello on May 5. However, if Langello would sign a contract, he would throw the new proposal away.- - 15 The word "without" on L 21, p 86, of the transcript is corrected to read "with " h. The last prestrike meeting Jones entered Langello's office on May 5, 1980, with a proposal of a 90, 90-, 90-cent wage increase, and retroac- tive pay. He again said to Langello that he would forget the proposal if Langello would sign the contract. The company representative declined. Jones then said, "Chick, if we've got to walk out on you, I've got to leave this proposal with you because we have no other alternative." Langello replied that he had not been in contact with his men for 2 hours, and that a strike had already begun. Jones replied that he was sup- posed- to meet his men about noon to inform, them whether Langello had signed a contract. -Jones then handed Langello a letter reading in perti- nent part as follows: ' This letter's in reference to the Union's final pro- posal. - - Due to your insisting to refuse to bargain in good faith, you have forced us to consider economic action against your company. But, in fairness to you, we will still reconsider accepting your offer to sign a contract as agreed upon if you indicate to us that you are 'willing to do this within the next two (2) days at 12: Noon. If you do not agree to sign a contract at that time, our final proposal in order to settle the strike will be as follows: Wages: 1st . year: 90 cent 2nd year; 90 cent 3rd year: 90 cent' Pension: ,1st year: $5.00 2nd year: $5.00 3rd year: $3.00 Sick Leave: 10 days, beginning with the first day of sickness a doctor's certificate may be requested by-the Company Retroactive Pay: From November 9, 1979 (expi- ration of contract) until such time as contract is signed. . . . [G. C. Exh. 4.] Langello testified that Jones gave him this letter. How- ever, he also asserted that Jones told him that if he did not "sign the agreement with retroactive pay and the other items that we had discussed," the men would strike. Thereafter, the Company could only settle the strike on the terms set forth in the letter. 2. Factual analysis a. The issue of Jones' credibility The essential problem is resolution of the conflicting testimony of Langello on behalf of Respondent, and Jones and Wright for the Union. A threshold problem in assessing • Jones' credibility is the fact that, while he was testifying on direct- examination concerning the Novem- ber 9 bargaining session, Respondent's counsel protested that the witness appeared to be reading something writ- ten 'on the palm of-his hand. With the General Counsel's permission; I examined the hands of the witness, and ob- served writings, in what appeared to be ink, on the palm of his left hand. • 844 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD All parties agreed that this was a case , of first impres- sion . I ruled that the writing on the hand of the witness was a "writing" within the meaning of Rule 612 of the Federal Rules of Evidence, and that Respondent was en- titled to inspect it and introduce it into evidence. The General Counsel requested a recess for the purpose of al- lowing the witness to eradicate the material from his hand. The request was not granted, and Respondent's counsel was permitted to examine the witness' hand. Counsel ' made certain notations while doing so, and I asked the General Counsel to stipulate that these nota- tions constituted an accurate record of what appeared. on the witness' hand. The General Counsel replied that the "dates" on Respondent's Exhibit 1 for identification were identical to those on the witness' hand. Respondent's counsel -objected that the material was not confined to "dates, 'as [the General Counsel] suggested." The Gener- al • Counsel then agreed that the proposed exhibit was an "accurate reflection" of what appeared on the witness' hand. - I then asked the witness, as the Charging .Party's rep- resentative, to stipulate that Respondent's Exhibit 1 for identification constituted a copy of what "was written on his hand. The witness replied, "These are -the numbers that are on my hand." I asked about the rest of the mate- rial in addition to the numbers, and Jones answered, "There's nothing else, on my hand except numbers." At that point all parties agreed to have a photostatic copy made of the witness' left palm, and this was done. At the close of the witness' direct testimony, Respond- ent moved'to strike Jones' testimony insofar as it related to dates between September 7, 1979, through May 1980, these being "dates and notations which appeared on this witness' hand prior to his taking the stand, from which he -testified during at least a portion' of his direct exami- nation." " I denied this motion, with the observation that Re- spondent's'rights under Rule 612 were protected upon its counsel's inspection of the writings on Jones' palm, the making of the photostatic copy thereof, and -Respond- ent's opportunity to. introduce same into evidence and cross-examine the witness concerning it. I saw nothing in Rule 612 to warrant striking the testimony of the wit- ness, an opinion which I now reaffirm. Respondent's counsel then withdrew his motion to strike, and moved for introduction of "Respondent's Exhibit 1, which is a reproduction of the writing which was referred to by the witness as he testified." As it appears in the official ex- hibit file, Respondent's Exhibit 1, delivered by counsel to the reporter, is the photostatic copy of Jones' palm, rather than counsel's notes. Respondent then cross-exam- ined Jones, but made no reference to the exhibit. •Respondent now argues that Jones "employed a `cheat sheet' . in an attempt to recall alleged'violations and . . . refused -to stipulate to its contents, indicating that there was nothing else contained on his hand other than numbers." 116 - Respondent's argument is exaggerated. The use of notes, by. witnesses is not uncommon, and is, covered by Rule 612. The aspect of this case that. is unique is the 16 R Br 28 nature of the writing itself. The issue is whether Jones' use of notes written on his palm, rather than on a piece of paper, suggests that he is an untruthful witness in gen- eral, or that his testimony was untruthful in some specific respect. - I see no warrant for either inference Jones is not an attorney, and there is nothing to suggest that he is familiar with the rules of evidence. Although Jones was the Charging Party's representative, he was not repre- sented by counsel. His conduct was not substantially dif- ferent from that of a speaker who writes notes on a file card or a shirt cuff. There was nothing surreptitious in his looking at his hand, and, indeed, Respondent's coun- sel noticed it. Nor is there anything in the notes to sug- gest that Jones' testimony was false in any specific re- spect. As indicated, Respondent did not refer to the pho- tostatic copy of the notes on cross-examination. Nor is it an accurate statement that Jones "refused to stipulate" to the contents of the -notes. Indeed, he con- sented to have a photostatic copy made of his left palm, and that document was received in evidence without "ob- jection. The fact that Jones-said that there was nothing "except numbers" on his hand was merely a repetition of the General Counsel's similar remark about "dates," and could not have indicated an intention to deceive, since Respondent's counsel had already examined the witness' palm and had made his own notations. Finally, examina- tion of the exhibit itself shows that the. notes were pri- marily dates, with single words or legends following some of them (R. Exh. 1). - Respondent also attacks Jones' credibility on the basis of his allegedly erroneous view of the continuing viabili- ty of the last contract after its termination date. Howev- er, the interpretation of a legal document by a lay wit- ness has little or nothing to do with his credibility in general. b.'Credibility resolutions As noted above, the complaints allege that Respondent violated Section 8(a)(5) on March 5, 1980, and thereafter. During the General Counsel's presentation of evidence pertaining to events prior to that date, Respondent pro- tested' its relevance. The General Counsel answered-that it was "background" evidence, and it-was received for that purpose. Therefore, although relevant, these events do not have equal significance with the alleged events taking place' on and after March 5. The evidence is clear on some of the pre-March bar- gaining issues, and less clear on others. What is clear is that Respondent' made- a final offer in-December 1979, in- cluding at least Langello's 70-, 55-, and 45-cent wage offer, 17 the existing checkoff clause plus a new provision for drive checkoff, and a retroactive pay -increase ' since the termination date of the last contract provided that the Company's retroactive offer -was accepted by De- cember 15. ' ' ' `` 17 The question of whether Langello made two or more wage offers is not important However, since he admitted on cross-examination that he made only two offers, I conclude that Jones' testimony was accurate in this respect, and that Langello made his, final wage offer at the October 11 bargaining session SCA' SERVICES OF-GEORGIA As set forth above, the evidence concerning the non- economic issues is in conflict. The most significant' ques= tion is whether, if in fact there were any conflicts, any of them survived to March and April 1980, and thus were contributing factors in the failure of the parties to reach agreement at that time. According to Langello, one of the most important issues preventing agreementhad been the Union' s insist- ence on company collection of back. dues.. Jones denied that this was ever an issue, and said that it was "created" by Langello. Langello admitted on direct examination that the union itself agreed to collect the back dues in- April, and Charles Wright testified that, Jones said it would not be a problem. Therefore, Langello's'assertion on cross-examination, that back dues checkoff was the issue, is incredible. I conclude that this' issue was manu- factured by Langello, and -that back dues checkoff was never an issue between the parties. . ' I also conclude that none of the noneconomic subjects of bargaining was an issue in the March-aiid April sego= tiations; however, the parties 'may have differed=in the earlier bargaining. Langello referred to-the noneconomic issues the parties "agreed upon," whereas•Jones, denying any noneconomic concessions by the" Company except two minor ones, said that by the spring of, 1980;' the Union was ready to "go" with the contract "as is -" On either explanation, there 'was no 'dispute' over' noneco- nomic matters by March and April. ' On the issue of a pension fund -increase, Langello said that he offered one in the March meetings, and his testi- mony on cross-examination suggests that, Jones, in the ,April 'meeting, refused Langello's 'March offer of an in- crease, from $5 to $7, $9,• and $11 over _a 3-year period: However, the Union only asked' for a $1 increase during the March -5 session, and Jones'" stringent May 5 propos- al, on the eve of the strike and after. what he character` ized as Langello's refusal to 'bargain," did not demand more than the same $5 for. another 3 years (G.C.,Exh.-4). It is therefore incredible ' that Jones would have: refused a $7-$9-$11 offer in April, as Langello ,asserted that he did. I. credit Jones' testimony that Langello refused, any increase in the pension fund, and that the; Union decided to "go" with the contract "as is." Langello's ' testimony that the Union continued . to demand retroactivity of the, pay increase throughout the 1980 bargaining sessions is implausible . This. w as one-of the most intensely disputed items during the 1979..•bar- gaining., After first agreeing to retroactivity- until .No- vember 30, Langello then extended it to December .15, but only on condition that the Company's offer be ac- cepted by that date.- As indicated, Jones testified .that, during the, March 5 session, he, told :Langello, that he ,thought he could get: the- men to eliminate retroactive pay, and that this was not, an issue, at that, time. tLangel- lo's cross-examination concerning the April 9, meeting suggests that it was only Jones' alleged demand for a still greater pension fund increase 'that blocked: agreement, not the wage retroactivity issue.' "I credit Jones on this point and conclude that, by the time of the March 5 bar- gaining session, the Union had dropped its demand -for:a retroactive wage increase.' 845 The Company's `April 11 letter to the Union acknowl- edges the fact that the Union had, indeed, offered to accept the Company's December 15 offer (R. Exh. 8). Although the letter states that there was no offer to accept, because it was conditional on acceptance by De- cember 15, this is clearly false, Langello flatly testified that the b"ecember 15 deadline applied only 'to the Com- pany's offer of retroactivity of the wage increase, not to the entire. offer. The.letter speaks of "changed- conditions" that made continuation of the offer "inappropriate," and Langello speaks of antitrust indictments, fierce competition, declin- ing profits, and the high price of fuel and tires. No docu- mentation was offered to support these assertions. More-, over, despite their alleged existence, Respondent unilat- erally implemented a wage increase in December, and, thus voluntarily increased its own cost of doing business. Aside from the pension and -wage retroactivity ques-' tions-which had ceased to be issues by March 5-the wage increase question was the only other- monetary issu causing a 'difference' between the parties, and Re- spondent had freely assumed the burden of an increase. There is therefore no discernible business reason why the - Company could not have entered into the contract with the Union in March or April 1980, on the same terms which it offered in December 1979. The ' only other 'possible reason is the one asserted by Jones and Wright, and denied by Langello, that the Company refused to enter into a contract with any checkoff clause whatever, despite its December offer which, included checkoff and. an additional provision for drive checkoff. Jones' testimony on this subject is replete with realistic quotations of the actual conversations which ,he had with "Chick,".pointing out how the Union could- not sign a• contract without a checkoff clause. His testimony is corroborated by Wright. Further, as out- lined above,'Jones stated that one of Langello's asserted reasons was the fact that the Company had negotiated a contract in Florida without a checkoff clause, and would not'sign one 'in Atlanta with such a clause. Langello's knowledge of any such Florida contracts and partial cor- roboration of Jones are suggested by Langello's testimo- nythat'he had negotiated two contracts with the Team- sters in Florida. Finally, Langello's testimony on the 'combined subject of checkoff, drive checkoff, and back- dues checkoff was hopelessly confused, as described above. For, these reasons, I credit Jones' and Wright's 'testimo- nies that Langello would ' not sign a _ contract with the Union in March and April. because the latter insisted' upon retention ,of, a checkoff clause, a provision which the Company, refused. to accept at that time. i.e r ,ie I find-it unnecessary to'inake a resolution on the dispute between Jones and Langello as to whether, in their first meeting at the Holiday Inn, Jones asked Langello for $ 15,000 in return for a contract "without a lot of hassle," or whether Langello asked Jones "what it would take" to get such a contract 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Alleged Prestrike Independent Violations of Section 8(a)(1) 1. The alleged threat to withhold wage advances a. Summary of the evidence The amended complaint alleges that about -April 1, 1980, Respondent threatened to withhold wage advance- ments if employees engaged in union activities. - As described above, the expired contract contained a pension fund clause which was the subject of negotia- tion. The clause provided that, upon separation, an em- ployee was to receive his accrued moneys from the fund.19 Langello testified that this clause was requested by the Union in order to create a "forced" savings ac- count for each employee. He described the "savings or pension plan" as one whereby the Company ' deposited the sums required by the contract into a moninterest bearing account. The money was considered to belong to the employees. According to Langello, it could be given to employees "in emergencies." Employee Willie Simmons, a former steward, testified that he had previously -received two salary advances from Langello,.the first one in the amount of $100, and the second for $200. After the second advance, Langello told him that it was coming out of his "savings, the re- tirement money," and that he had only $50 left. Simmons further testified that he had a conversation with Langello about April 1, 1980,, in which he requested an advance on his vacation money20 in order to get his driver's license reinstated. Langello replied that he could not do this because the Union was going out on strike, and he was waiting for a call from Jones. - Langello replied that he could not do that, and that he "wasn't going to have any vacation money or pay. He was freezing upon it until he heard from Mr. Jones." ,b. Factual analysis - Simmons' testimony is uncontradicted. He -was a be- lievable witness, and I therefore credit his testimony. I conclude that the testimonies of Lafigello and Sim- mons establish a past practice of making advances to em- ployees in cases of "emergencies," in amounts up to the amount then credited ' to the individual's account in the "pension" plan established by article XXXII of the ex- pired contract.2 t . 18 G C. Exh. 6, art XXXII. 20'Art 'XXIX, GC Exh 6, ibid, specifies that employees shall get paid vacations, the length of which is- determined by their length of em- ployment, at the regular hourly rate, and'that in lieu of taking a vacation, they may' be paid at eight times their hourly rate in addition to wages earned for work performed - 21 Respondent makes a confusing argument which agrees in part and disagrees in part with this conclusion. Thus, Respondent imputes. to the General Counsel an attempt to- establish "that employees had a history of securing advancements against their salaries," and attempts to counter this alleged attempt by saying that the evidence establishes that such ad- vances were made from the "retirement fund," or the "retirement savings fund." (R Br. 22 ) Actually, the loans were made against , the "pension" fund, and I conclude that Simmons and Langello used the terms "pen- sion," "savings," or "retirement," .,plan," or "fund," interchangeably. Respondent next argues that the evidence does not establish,a prior practice of granting advance vacation money, and that Simmons did not follow required procedure in requesting a vacation (id.). This argument is I further conclude that about April 1, 1980, Simmons requested such an advance,22 and that Langello refused it because of his employees' union activities, stating that he was "freezing" such advances until he heard from the union agent. 2. Alleged undermining of the Union, and unlawful interrogation The amended complaint alleges that about April 16, 1980,- Respondent undermined the Union by telling em- ployees that it was the Union's fault that they did not re- ceive a wage increase. The complaint also alleges that Respondent engaged in unlawful interrogation , the earli- est-such alleged date being May 23, 1980, i.e., after the strike began. Employee Willie Benjamin testified that about 3 weeks before the strike, i.e., in April 1980, Langello told em- ployees in the dispatch office that Jones was the reason the employees did not get retroactive pay, because he had failed "to settle the contract" by December 15. Lan- gello also said that the Company had given him $93,000 to settle the contract, and that the employees could take this in wages or- benefits, but that that was all he had to offer. Langello asked Benjamin, 'according to the latter, whether he would be able to pay his union dues if the Company did not deduct them. , . Langello recalled two other conversations with Benja- min, but did not specifically deny, this one. Benjamin was a credible witness, and I accept his testimony as true. 3. Alleged promise of increased wages for refraining from engaging in union activity The complaints allege that about April 16, 1980, Re- spondent promised employees better pay if they refrained from engaging in, union activities. Employee Willie Paul Johnson Jr. testified to a, conversation with Langello in mid-April 1980. Employees J. S. Clark and Milton Hill - were present. According to Johnson, Langello suggested. that the employees could make the same money working by the piece rather than by the hour. They were good workers, and did not need a union to help them keep their jobs. or negotiate raises. Milton Hill, a shop- stew- ard, testified that on this occasion Langello said, that he could do' more for the employees than the Union if they got rid of the Union. Langello denied the statements at- tributed to him by Hill. Johnson's account has greater detail than Hill's, and indicates more accurate and complete recall of the con- versation. In addition, Hill's testimony was denied by Langello. I credit Johnson's version, and reject Hill's. s , also. without merit . Art XXIX clearly links employee vacation rights to hourly wage-rates, and specifies that in some circumstances wages may be paid at 'eight times the hourly rate in lieu of a vacation Further, Lan- gello's testimony does not limit the practice'to salary advances He testi- fiedv.' We could give the- men that money in emergencies " Finally,-Re- spondent's argument -that Simmons did not follow required procedure. in requesting a 'vacation- is-irrelevant-Simmons asked 'for a loan, not a va- cation. ' ' 22 I conclude that the remstatement'of an expired driver's license was a sufficient "emergency" to fall within the established practice. Respond- ent argues to the contrary, because the record evidence shows that Sim- mons was getting a ride to work This argument is trivial - SCA SERVICES ,OF GEORGIA C. The Strike and Allegations of Additional Violations of Section 8(a)(1) 1. The strike As described above , the strike began on May 5, 1980, at the time of Jones' last prestrike -visit . with Langello. Picket lines were set up , and Langello testified that he saw 22 pickets with sings stating that the employees were striking for better wages and working conditions. The General Counsel stipulated that this was'-the "sign the employees were carrying while they ' were on the picket line." Employee Phillip Harris, however, testified on cross-examination that he -carried a sign protesting Re- spondent's unfair labor practices and'' failure to sign a contract. Johnny Rudd Jr. stated his belief that his picket sign protested low pay and working conditions , but also said that the employees struck because they did not get, a signed contract. ` " • 2. Langello's alleged unlawful conversations with strikers - - a. Summary of the-evidence The amended complaint ` alleges ' that Respondent on May 5, 1980, unlawfully threatened 'not' to 'reinstate strik- ers;. interrogated them concerning ' their, union activities, and solicited them to' abandon the strike at `variou's''times; and threatened them that it would be futile to' engage in union activities by telling them on 'May 23 that it would never sign a contract unless it -was the kind of contract Respondent wanted to sign, and by telling them on June 25 that it would not sign a contract with a "checkoff pro- vision. - . I. ';: - (1). Willie Simmons-May.5. Simmons testified that the -employees •'started bringing in the trucks when ' the strike started 'bn May,5:'L;angello came out to the container shop ` and told- the -employees that he was not - going , to hire anyone`back• because they had already struck. According to Simmons , he asked Langello whetlier•-he was going -to sign a contract. - Langello', replied' in 'the negative, saying that he- "wasn't"sigmng''for-'no 'check- off.' 'Langello denied making . the statements ' attributed' to him by Simmons . He also denied . speaking' to any,em- ployee in the container shop' on the day the strike=began. (2)-Phillip Harris-May',J: Employee Phillip Harris, a'• striker, 'testified 'that"-he called Langello about 2 days after the strike began; and asked him whether he ivas- 'going io'sign a'contract.'-Lan- gello - replied that the matter was ' out of_,his' hands,, and asked Harris to 'meet . him. somewhere .- with; a truck' so that ' he could drive for =Langello :: Harris replied - that 'he was going to "stay 'with' the strike ""arid, asked - about' his pension ' money. Langello replied ' that Harris 'co`uld' not get this unless he resigned , and asked Harris whether he intended to do so . Harris replied in the negative. Lan- gello admitted having a conversation- w_ith• Harris; but denied making the statements attributed to" "him' 8; the 847 latter. He said that he- did not recall asking anyone to come back to work. '(3) Lloyd Thompson-third week of May - Thompson testified that about 2 or 3 weeks after the picketing 'began, Langello approached him near the picket line and told him that he could drive a "front- end" truck if he came back . Thompson declined, saying that the employees were striking because they did not have a signed contract . Langello denied saying this to Thompson. Shop Manager Carson had previously or- dered Thompson to stop driving front-end trucks and to use another . type of vehicle. (4) Willie Benjamin-May 23 Benjamin testified that he was carrying a picket sign on' May 23 . Langello approached, and asked Benjamin when he was coming back to work . Benjamin replied that he would return to' work when Langello signed the contract. Langello replied, according to Benjamin, that he `would not sign a 'contract unless it was the kind he wanted to sign. ' Langello asserted ' tha't Benjamin called him' one night, on-an unspecified date;'and asked him when the' contract would be settled. The company representative told Ben- jamin that''he' did not know, and Benjamin said that he 'was sorry that al! ' this .had happened. Langello testified that he did 'not ask Benjamin .to come to work. (5)' Willie' Simmons-June 10 - Simmons testified that her was walking the, picket ,line on. June 10 • or ; 11, when Langello asked him to come ;back and `-'paint those cans." Langello said that he knew Simmons was "hurting," because he was only making $45 a week. Langello denied asking Simmons to come back and paint cans, -stating . that, he had hired a replace- ment for Simmons on the second day of the strike. (6)'George Lane-the middle of June d-Employee ,George Lane, a striker, testified that he was ,walking the picket line in the middle of June, when Lan- gello approached ,-him and asked him•what he was going to, do;about-returning to work. Lane replied that he was not going to return until a contract was signed. Langello testified that . he did talk to George Lane on the picket line. He asserted that he did not remember ;`the_ exact ,question" he; asked Lane, but believed there -was, a;conversation --."about, how , long the . strike was going td-last." The' compan y representative testified: "I 'believe:I-asked him if he was going , to stay out or come back.': - .:, . . . _: - L(7) Johnny Rudd Jr.-the' middle of June Rudd•,was, 'a - striker, and testified- that about '6. or 7 'weeks after ' the 'strike ' began; i.e., about the middle of -u ,._ JneLangello,' said that he would like Rudd to come back to work, that he was not making any money with that sign. Rudd replied that he would love to go back as • a group; the way, they came out. Langello - denied saying tliis 'to Rudd. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (8) Milton Hill-the middle of June Hill testified that he was on the strike line in front of the company office in mid-June. Langello asked him whether he was "going to stay out there forever." Hill replied that he was just waiting for Langello to sign a contract. As indicated above, Langello testified that he did not recall asking anyone to come to work. . (9) Willie Simmons-July 3 Simmons testified that about a week or, two after his June 10 conversation with Langello, a date which he identified as July 3, Langello asked him how long they were going to be out there, and told him that he could come back to work. Simmons replied that they would be there until they could get the contract settled, at which time he would -be glad to come back. Langello denied asking Simmons how long he would be on strike or tell- ing him that -he could come back to work. On the con- trary, Langello testified that Simmons asked Langello whether the former could return to work, and that Lan- gello's answer was that Simmons would be put on a pref- erential hiring list. b. Factual analysis (1) Alleged threats not to reinstate strikers or sign a contract with a checkoff clause Respondent makes two arguments in support of Lan- gello's rather than Simmons' testimony on these factual issues. Thus, Respondent argues that "peripherally in- cluded" in the complaint allegation of the threat not to rehire strikers is Milton Hill's testimony that Langello said' he would get rid of Willie Simmons, Lynn Wilhoyt, and • Robert Tucker if there were no union . Respondent then argues that this alleged statement by Langello is im- probable because Wilhoyt did not strike and was never discharged, Tucker was rehired after striking, and Sim- mons was given another job after losing his driver's li- cense. Respondent also argues that, as of July 15, ap- proximately- 6 out of 22 strikers had returned to their jobs.2 3 Neither of these arguments is persuasive. Hill testified that Langello's statement concerning Simmons, Wilhoyt, and Tucker was made in September 1979, whereas Sim- mons testified that the statement-that he heard was made on May 5, 1980, the day of the strike. Without passing on -the validity of Respondent's arguments against the probability -that Hill's testimony concerning events in September 1979 is true-as to which there is- no com- plaint' allegation-it is obvious 'that the testimonies of Hill and Simmons relate to events widely separated in time. Further, the circumstances in which the two al- leged statements were made were entirely different-the statement attributed to Langello by Simmons was made just as he-was discovering that his employees were strik- mg. The accuracy of Hill's testimony is therefore irrele- vant. The second argument is also unconvincing since an employer might well threaten not to rehire. strikers in the 23 R. Br. 24 heat of the moment as a strike begins and later change his mind because of business exigencies or other reasons. Langello's testimony that he did not, speak to any em- ployee in the container shop on the day of the strike is inherently improbable or equivocal. It is unlikely that - Langello or any other employer would say nothing whatever to his employees at the time he learned they were striking. If Langello meant merely to deny that he spoke to employees in the container shop, then his denial is equivocal. On the other hand, Simmons' testimony that Langello said he would not sign a contract with a check- off clause is consistent with the credited evidence con- cerning Langello's position at the bargaining table, de- scribed above. Simmons appeared to be a more reliable witness than Langello on this issue, and I credit his testi- mony concerning his May 5 conversation with Langello. (2) Alleged unlawful interrogation, solicitation, and additional threats Langello's testimony concerning his conversation with Lane constitutes an admission that he asked the latter whether he intended to continue striking. In the case of the conversation alleged by Hill, Langello' s denial is general in nature.' It is obvious in these two cases that Langello did ask the questions attributed to him by the employees. In the case of Benjamin, Langello denies the picket line conversation asserted by the employee, and, instead, contends that Benjamin called him at an unspecified date and asked when the contract- would be settled . Benja- min's testimony is specific about the date, and is consist- ent with the other credited evidence of interrogation. His averment that Langello said the Company would only sign the kind of contract that it wanted to sign is uncon- tradicted. Benjamin was a credible witness, and I credit his testimony. I also credit Simmons' - testimony concerning his con- versations with Langello on June 10, and again in the last week of June. Simmons' version of the June 10 con- versation, with its reference to the painting of cans, has verisimilitude which gives it the ring of truth, and-the last conversation falls into the pattern of interrogation by Langello established by other evidence. The same obser- vation may be made of the testimony of Rudd, Thomp- son, and Harris, which I also credit. D. The July 1 Bargaining Session 1. Summary of the evidence 'The parties held a bargaining session on July .l, 1980, despite the strike. Langello testified that Jones, Charles Wright, and Milton Hill were among those present rep- resenting the Union. Langello also testified that, the Company made an offer to settle the strike and the con- tract dispute. He asserted that the Union- had agreed to collect its back dues, and that the only issue separating the parties was retroactivity of the pay increase. As indi- cated above,,this concerned about 4 weeks of the pay in- crease, from the expiration of the old contract on No- vember 8, 1979, to the Company's unilateral increase on December 7. Langello contended that he offered to SCA SERVICES OF GEORGIA "split the difference," i.e., pay 2 weeks of the retroactive pay increase, but that the Union rejected the offer. Charles Wright gave a completely different version of this meeting. He testified that Jones told Langello that he would try to get a contract accepted without check- off, which had never been done before. "Mr. Langello didn't seem accepted for that [sic] at all," Wright testi- fied. Jones denied on cross-examination that Langello ever offered to,-"split the difference" on the wage retro- activity issue. "I would have jumped on it," he testified. Milton Hill was twice asked on cross-examination wheth- er Langello made such an offer. "Not that I can remem- ber," he answered. "Not that I recall.", George Lane was also present, was asked the same question on cross-exam- ination, and gave the same answer The Company asserted damage to its property during the strike, but admitted that it could not prove this was caused by the Union. 2. Factual analysis I credit the testimonies of Wright, Jones, Lane, and Hill, and reject that of Langello. As set forth above, the Union had already withdrawn its demand for the. retro- active pay increase during the prestrike bargaining ses- sions, and there is therefore no reason why Langello would have offered a compromise on this dispute, which he had already-won. The testimonies of Jones, Lane, and Hill were given on cross-examination, without any pre- liminary questions on direct examination concerning the July 1 bargaining session, and are entitled to additional weight because of that fact. The union witnesses were obviously telling the truth, despite Respondent's attempts to elicit from them corroboration of Langello's state- ments. I interpret Wright's somewhat garbled testimony as meaning that by the time of the July 1 meeting, Langello was not willing to sign a contract even though the Union was then willing to eliminate the checkoff clause. In es- sence, Langello was unwilling to sign a contract despite the apparent settlement of all known disputes between the parties. E. The Replacement of Strikers and the Decertification Petition Langello testified that the Company replaced all the strikers within the first week of the strike, with one or two exceptions. He also hired some of the strikers. The plant manager further averred that, after the strike start- ed, an employee asked him how to go about getting ,rid of the Union. After receiving legal advice, Langello told the employee that the latter could get,a.petition for such purposes. Langello thereafter received a petition signed by 29-employees stating that they did not wish to be rep- resented by the Union (R. Exh. 10). Langello testified that this constituted a majority of his employees. There- after, on July 15, 1981, in Case 10-RM-708, Respondent filed a petition seeking an election, alleging that a ques- tion concerning representation had arisen. This matter is still pending.. 849 F. The Alleged Refusal to Reinstate Strikers A. Summary of the evidence a. The status of individuals to whom employees allegedly made offers to return to work The amended complaint alleges that six of the strikers made unconditional offers to return to work at various dates,24 and that Respondent discriminatorily refused to reinstate them in violation of Section 8(a)(3) and (1), of the Act. Respondent denies that any of the employees made unconditional offers to return to work, or that it refused to reinstate them. Langello's. position as plant manager of Respondent's Atlanta facility terminated on July 31, 1980, his "last day in Atlanta," according to his testimony. He then "moved- to another SCA company," and thereafter "had no knowledge of the operations" of the Atlanta facility. The asserted offers of 'employees to return to work were made after July 31, 1980, to persons other than Langello. Respondent's denial that it refused to reinstate strikers is principally grounded on its contention that the persons to whom such offers were made were not super-' visors. Although this issue originally involved the status of Ross Povey, Charles Carson, and Donald Maxwell, the parties stipulated that Povey is a supervisor, leaving only the status of Carson and Maxwell as disputed issues. (1) Charles Carson - Willie Simmons described Charles Carson as the "shop manager," the "manager of the trucks," and called him a "supervisor." By the time the picketing stopped, accord- ing to Simmons, Langello was not in the Atlanta facility. He was "in Washington," and Rick Deangelo and Charles Carson were the managers. Simmons testified that Respondent maintained some of its offices in a trailer. There was one office for Langello, another for the dispatchers, and a third one shared by Deangelo and Carson. There was another structure, a large building with three work stalls, and offices for sec- retaries and salesmen. There were about six mechanics working, in the building, and Carson was their "boss." "He would see to the trucks being fixed." The mechanics required Carson's permission to obtain repair parts from a place where they were stored.. Simmons testified to one occasion when he observed Carson reprimanding employee Bob Wright for coming in late. Simmons - asserted on cross-examination that Carson had authority, to do this, and denied that Carson had been previously instructed by_ Langello or Deangelo to do so, because.the incident took place in the morning when neither Langello nor Deangelo was present. Lloyd Thompson testified that he was, driving a "front-end" truck, and that the clutch "went . out." Carson walked up and told him that he did not want Thompson driving front-end trucks anymore, and that he 24 Milton Hill, August 29, 1980, Willie Simmons, September 19, 1980; Phillip Harris, October 1, 1980; Lloyd Thompson, October 30, 1980; George Lane, November 15, 1980, and Willie Paul Johnson, April 21, 1981 850 DECISIONS OF^ NATIONAL LABOR RELATIONS BOARD was to drive a "roll-off' truck., "I did exactly what he told me," Thompson testified . Carson's order was later countermanded by Langello , according to Thompson. Langello said that his subordinates were Rick Dean- gelo (a management trainee), a container foreman, an office manager, a sales manager, Charles , Carson, two dispatchers, and employees with various specialties. Car- son's title, at least : until July,1980 (when, Langello left Atlanta), was "shop foreman." Carson was, hourly paid, unlike Langello, Deangelo, the office manager , and the sales manager, who were salaried . However, Carson did not punch a timeclock, since "none of the ' office people punch a timeclock." He had previously. been a welder and a compactor ' repairman and later was put in charge of the mechanics, according ' to Langello. He had ' no office, but shared a file cabinet with Deangelo , and spent most of his time in the shop. - . " Carson "administered" -a' preventative maintenance program which Langello had -established . According to Langello, the mechanics --were very familiar' with the' trucks, . and- could do everyday repairs ' without very :- much - supervision .. However,-they occasionally went to Carson for ' a part or a suggestion - or something like that." If a truck broke down between 7 a.m; and3:p:m:,, Carson could decide which :mechanic was to repair it, and could purchase spare parts on anemergency basis. Langello took Carson and Deangelo , the management,- trainee, with him. during negotiations .with-•,the :Union., Carson was just "basically - learning," according to . the plant manager, and had no authority to conduct labor re- lations. - Langello testified that, the Atlanta plant opened, at, 4, a.m. and stayed open until the last, truck arrived at ,the end of the'day. The plant manager acknowledged that he was not at the plant during ' the entire -time that-it was open. However, he insisted , that he was in charge ;of,the plant even during times when,he was not present . Thus, - Langello contended that he was only "20 minutes from the job" at all times, and could be contacted : by: tele- phone or his car -radio.: ' . - , i- : r:. , . For these reasons,, no one had: authority.-to_ discipline- employees in Langello's absence or-,without his -author-,, ity, according to the plant manager . Langello specifically- denied.-that Carson had various types -of authority; nor mally considered to be indicia of supervisory status, and denied that he had authority to discipline " employees.;. However, the General Counsel - introduced,, disciplinary and warning letters - sent to employees by Carson 'in: 1978,?5 and Langello , was, unable to explain ,-the -circum- stances which occasioned this action..Langello acknowl- , edged , that Carson =had, -'authority , to, report things ,he thought t needed disciplinary action ," .and that .he, Lan-. Bello, independently investigated and; disregatded; such recommendations only, "at times .;",,, . „ Langello was asked on- direct examination , whether he ever authorized dispatchers, Donald Maxwellfor , Frank Bulousi to tell employee Bob Wright that further, lateness would result in_ disciplinary action . Langello originally': answered:-'At times I 'would advise them that I`"woald' like for them to tell a driver that they would have to be timely coming to work or there might be some discipli- nary action." Later, Langello stated that by this testimo- . ny, he - meant only the case of Bob Wright. However, as related above, the incident described by Simmons con- cerned '-a reprimand of Wright by Carson , not- by Max- well or Bulousi. (2) Donald Maxwell- As indicated, the Company had two dispatchers, one of whom was Maxwell , who normally opened up , in the morning. Thompson , testified that Maxwell's office was in the same , trailer where Langello had his office. Thompson also affirmed that Maxwell gave him his work instructions, or route sheet, ' in the morning, and told him when to work overtime. Milton Hill gave testi- mony similar to Thompson's, and added that Maxwell gave him time off, most of the-time when he made the request, although occasionally later in the day. Phillip - Harris asserted that . Maxwell interviewed him when he originally applied for.:employment , • and that he was later hired without having talked to anybody else in manage- ment. - Langello said that 'an' applicant for employment filled out an application form, which could be given out by "anyone" in the' office. 'However, reinstatement applica- tions could 'not even -be received by Carson or the dis- patchers. After an office check of reference on employ- ment applications, Langello reviewed each application and made the decision on whether to hire the applicant. This wasthe case .when Harris was hired. -Langello' denied , that'his - dispatchers had authority to grant time off.'_He said that an'employee could get this merely by calling the, dispatcher before 6 a.m,. If the dis= patcher' was' short' of= help, he could "beg a little," but could not "insist " `thati the employee come in. `Langello; further -stated that the drivers had "pre-print- ed sheets with their routes ,' but' that if some of the cus- tomers called during the day , these -additional stops would be called in over the, radio. The plant manager agreed that the dispatchers used their discretion in decid-, ing.which ,_driver to call. Langello denied that the dis- patchers , had authority to, make a permanent change of routes, amoiig. the drivers, but stated that this could be done, on; aitemporary basis. ;-Langello .asserted that he was the only one who_could grant ,overtime. In,;the, case -, of 2the drivers, "automatic - overtime -was;. built . into • their jobs." They did not have ; "flat" hours, and "worked :until ,the: fob was done."- No overtime for any other employee could be given without Langello'^s personal. authorization. f - ^ - b'. The alleged offers -to return -to -work z `' ` ,(1) Milton Hill Hill ' testified' without contradiction that'he called Max-' well in'August ,^1980, and asked him-whether they needed anybody. Maxwell- replied in the negative, saying that he had a good crew at that time, ' - 25 G C Exhs. 7-10 :: SCA SERVICES OF GEORGIA 851 (2) Willie Simmons Simmons testified without contradiction that- he called Carson at the end of September 1980, about 2 weeks after the picketing ended. Although Simmons' testimony is not clear, I infer that he asked Carson whether he could come back to work, and said that Langello had told him that he could do so. As noted, Simmons also testified that Langello did tell him this. (5) George Lane Lane averred that he wrote a-letter to the Company in November 1980 stating - his understanding that a letter was required for employment, and that he wished his letter to be considered as such. Lane addressed the letter to the Company at a post office box number which, he testified, he received from Maxwell. Lane further testi- fied that he did not receive a response to his letter. (3) Phillip Harris Harris testified that he went to the office on October 1, 1980, after the picketing had ended, and asked Carson how to get his job back. Carson told Harris to write a letter stating that he would like to continue his future with the Company. Harris further testified that he wrote a letter to Carson the same day. Four days later he called the Company, and dispatcher Donald Maxwell told him that his letter had not been received. Maxwell told him to write a letter to Operations Manager Ross Povey. Harris testified that he then mailed a letter to Povey saying that he wished to continue his future with the Company and would like to continue working as a roll-off driver. The letter was addressed to SCA Serv- ices, 916 Lees Mill Road, Forest Park, Georgia. 28 Harris stated that he gave his telephone number in the letter, but further affirmed that he received no response.. • (4) Lloyd Thompson Thompson testified, without contradiction, that his daughter wrote a letter for him, which he read, asking the Company for a job. Thompson gave the letter, to Maxwell for delivery to Carson. Thompson further stated that he called Carson about the last of October or. the first of November.(1980), and asked the shop manag-. er whether he had read the letter. Carson replied, ".You all act like you don't want, your damn job back," and said that he was going to contact his lawyer "while y'all holding up and not contacting me." "I did contact you," Thompson replied. "I wrote you a letter. I brought it in there and I gave it to Donald Maxwell." Thompson also told Carson that Maxwell had demanded that the letter come through the mail. "What difference in-me ' handing you the letter and the postman?" Thompson asked Carson. The latter replied that "that's the damn way [he] wants it," according to Thompson. He further testified that he had a telephone conversation with Maxwell in May 1981 in which the dispatcher said he would like to put -Thompson back to work; but could not'do so be- cause Thompson made "trouble.?' _ 28 Langello gave the same street and'iiumber as Respondent's address, but stated that the city was College Park rather than Forest Park. The original charge in this case. was mailed to Respondent at the , same street number, but was addressed to Atlanta rather than to College Park or Forest Park (G C Exh 1(b)). The pleadings establish that this mailing constituted service on Respondent (G C.. Exhs. 1(c) and (g)). The U.S. Postal Service lists College Park as a branch , post office of Atlanta, but does not list a Forest Parkin Georgia 1983 Nat,oial Five Digit Zip Code and Post Office Directory, p 506. However, the All New Rand McNally Rodd Atlas, p 24, shows a Forest Park on the east side of the airport, opposite a College Park, and the Southern Bell Telephone Company Di- rectory for Greater Atlanta, 1981-1982, shows a Forest Park on various pages I take judicial notice of the foregoing publications. (6) Willie Paul Johnson Jr. According to Johnson, he went to the plant in mid- November 1980, and had a conversation with Ross Povey in the presence of Charles Carson. Johnson asked for his retirement pay, and Povey told him that this was impossible unless he resigned . Johnson replied that if he could not get his retirement money, he would like his job back, and Povey told him that he had to .write a letter asking for reinstatement . "Well," Johnson an- swered, "will I be reinstated Monday morning if I bring the letter?" and Povey replied, "No." Johnson then said that he "must be fired," which Povey denied, saying that he could not give Johnson his job at that time. Johnson wrote a letter to the Company asking to return to work and continue his career with the Compa- ny, and carried it out to the Company. Johnson original- ly testified that this took place in mid-November 1980, but later stated that it occurred in mid-May of 1981, a date which I conclude is accurate. A secretary told Johnson that Povey was in a meeting, but added that she would see that he received the letter, and accepted it. Johnson further testified that he.was reinstated by Re- spondent on August 10, 1981. 2: The offers to return to work-factual and legal analysis As indicated above, Respondent argues that the Gen- eral Counsel must establish that any employee offers to return to work were made to supervisors in order to have been legally effective, and denies that either Carson or Maxwell 'were supervisors.27 The General Counsel denies Respondent's, basic premise, and asserts that the "sole requirement is that the unconditional requests be directed to some responsible company official."28 The General Counsel cites Albritton Engineering Corp., 138 NLRB 940, 949-950 (1962), enfd. as modified 340 F.2d 281 (5th Cir. 1965), where 21 strikers made applica- tion for reinstatement, some 'to the personnel manager, two to a production scheduling supervisor who had never done any hiring,-and two to a state employment commission. The Board adopted the trial examiner's con- clusion that all the offers were effective-those to 'the production scheduling supervisor because he "purported to speak for the Respondent with regard to the availabil- ity of work . . . [and] had sufficient authority to bind the Respondent with respect to (the employee' s) application .... The court of appeals adopted this conclusion 'r R. Br. 35-42. 28 G C. Br. 12. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (except for the applications to the state employment commission) with the following language: Not all of the nineteen filed' written application forms; some inquired only by telephone.-But each communicated to some responsible company, official his request to be•rehired.. .-. N.L.R.B: v. Albritton Engineering Corporation, 340. F.2d 281, 283 (5th Cir. 1965)., The Board has reached- similar conclusions in other cases. Thus, in Hartmann Luggage Co.,, 183 NLRB 1246, 1251 (1970), enfd. as modified 458 F.2d 178 (6th Cir. 1971), the striker twice told the secretary of the employ- er's vice -president that she wanted to see the latter for the purpose of putting in an application, and was told either that the vice president was too busy, or that they were not taking applications. "Under the circumstances, [the striker]_ was to be treated as though she had been given and filled out a formal employment application, -in line with Respondent's'standard'practice. ... [id.]."-On appeal, the Court of Appeals for the Sixth Circuit stated, "Respondent's assertion that notice to (the vice presi- dent's) secretary was' not adequate notice to the Compa- ny requires no discussion." NLRB v. Hartmann Luggage Co., id.* ' - - ` 'In addition to approval of'telephone requests for rein- statement, the Board has considered the appearance- of strikers at-the plant as an offer td return to work (Sun- beal Lighting Co., 136 NLRB 1248 (1962)), and, from an ambiguous conversation of the striker with 'a "supervi- sor" who was his sister, has concluded that it was clear from the circumstances that `a return to work'was intend- ed (Colonial Manor Convalescent &' Nursing Home, -184, NLRB 693, 696-697 (1970)). These and other Board' cases, concluding that an offer of return to' work was made, use the word "supervisor" or other off cial' title to describe the individual to whom- the offer was addressed, without any formal finding of siipervisoty status of such individual. 'In Rice Lake Creamery co., 131 NLRB ,1270 (1961), enfd. 302 F.2d 908 `(D.C: Cir. 1962), the strikers made application to the secretary-treasurer of the- company; who told- them that she had notliiiig to -do with , hiring male employees, and that they would, have `to see the company president or vice president, but that neither was' available. In finding that effective offers-to return to work were -made, the Board `adopted- the following lan- guage of the trial examiner: = [T]he' Act :does 'not' require "that '[the' application] must be' made to' the-'precise -official'-,6r, employee who does the hiring,'especially-wliere'that `person:is unavailable; --.'whether by • chancey or design;' but through no fault of-the- applicants`:Imposition'of such a' requirement would enable an employer 'to forestall indefinitely the reinstatement and- payment of .proper backpay to employees., seeking- reinstate- ment bona fide [id., 131 NLRB-at -1299]. The Supreme Court has stated : "The right to reinstate- ment does not depend upon technicalities relating to ap- plication." NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). -In a'case where the employer 'required new employees to file employment applications, but did not do so with respect to old employees, the employer's requirement that returning strikers file such applications reduced them to the'status of new employees, and thereby unlaw- fully discriminated against them. Robinson Freight Lines, 114 NLRB 1093 (1955), enfd 251-F.2d 639 (6th Cir. 1958). From the foregoing authority, I conclude that a strik- er's intention to return to work constitutes a legally ef- fective offer to do so if his words or other conduct clear- ly manifest such an intention, and if they are made in such manner and under such circumstances as make it reasonable to infer that his offer was communicated to his employer. - - - Applying this standard'to-the facts in the instant case, I find that such 'offers were made to Respondent herein by all of the'alleged discriminatees. The testimonies of_ the latter are uncon'tradicted with respect to their face- to-face conversations and telephone' calls with Povey, Carson,' and Maxwell; I also infer that all of the letters concerning which the alleged discriminatees testified were in fact written by them, mailed to Respondent, and received by the latter, I with the exception of Harris' second letter (to Povey), which was addressed to the wrong city. It is, probable that this letter was also deliv- ered, because it had -the correct street address, but is un- necessary for me to make this inference since Harris had previously gone to the plant and had personally asked Carson-how to get his job- back, and-had thereafter writ- ten a letter to Carson and had had a telephone conversa- tion with Maxwell. - The"record is unclear about whether Respondent re- quired those of the, strikers whom it did rehire to submit similar, letters. ; There is, no affirmative evidence to sug- gest that. it did, _so, and Langello's picket line offers to return, _ to work, made to strikers; did not include any such requirement. -What is clear is thai'Respondent did not- require new, employees to submit such letters-they merely went to- the office and, filled out application blanks, a process handled by office clericals. ,The. returning strikers, on the other hand, were re- quired to write, letters, address them properly to a desig- nated,company official, and mail them. This is a more onerous-:process than, the- employment procedure Re; spondeni utilized with -respect. to new applicants. Fur- ther;Respondent- did. not, answer • at ;least -two of the let- ters- • which, were. mailed.' (not:: counting' Harris' misad- dressed letter);; Carson" refused )to-, acknowledge, a letter' which Thompson had personally, delivered to 'Maxwell;; while_,Povey.-told ' Johnson, that it: would; not, make anyi difference if he-did write ailetter--, he, still, would, not be, reinstated. ; This evidence suggests= that Respondent's re- quirement that strikers write letters: requesting reinstate ment =_was was, discriminatorily' motivated. Robinson. -Freight- Lines, supra. However, there is no such allegation in the complaint, and I make no finding on this issue Ii also conclude that the various conversations with Povey, Carson, and Maxwell constituted offers from the SCA SERVICES OF GEORGIA employees to return to work,. -as well as their letters. Povey, of course, is an admitted supervisor. I find it un- necessary to make findings on the supervisory status of Carson or Maxwell because an employee's offer to return to work need not be made to a supervisor in order to be effective, as I have concluded above. However, for the record, I consider Langello's testimony on matters per- taining to these supervisory issues to be exaggerated and unbelievable, while I credit the evidence from Simmons, Thompson, Hill, and Harris. Thus, the record clearly shows that Carson had au- thority to discipline employees, as Simmons testified, and that he exercised that authority despite Langello' s denial. Carson issued disciplinary letters to four employees, and Langello was unable to explain them. Simmons' testimo- ny that Carson reprimanded Bob Wright for lateness is uncontradicted and is credited-Respondent's rebuttal evidence did not mention Carson. Even Langello admit- ted that-Carson had authority to recommend disciplinary action, and that Langello independently investigated these recommendations only "at times," suggesting that at other times he simply followed them. . It is also clear that Carson responsibly directed the work of employees. He was directly in charge of six me- chanics, and was responsible for repair and maintenance of Respondent's trucks. Although Langello attempted to minimize this aspect of Carson's work, he admitted that the mechanics occasionally went to Carson for a "sug- gestion," and were required to get repair parts-from the shop foreman. Further, Carson had authority to assign repair work to one mechanic rather than another. That Carson had authority extending beyond direction of the mechanics is indicated by -Thompson's unrebutted testi- mony that the shop foreman directed him to drive a front-end truck' rather than the roll-off type, and that Thompson obeyed him. I also credit Simmons' testimony that Carson shared an office with Deangelo, not merely a file cabinet, as Langello equivocated. Unlike rank-and-file employees, Carson. did not punch a timeclock. He clearly • had au- thority to commit Respondent's credit under certain cir- cumstances, and accompanied Langello to union negotia- tions for "training" purposes. Maxwell had less authority than Carson, but it is clear that he did have some. Thus, although Langello contend- ed that routes were preprinted and assigned; he admitted that dispatchers could make temporary changes, and that they could select which driver would • be • assigned to stops called in by customers' during the day. I' credit the testimony of Hill -that Maxwell had and exercised the au- thority to give time' off and, from 'the fact that Maxwell sometimes did - this immediately, I infer that he did not have to check with higher authority. Langello' s asser= tions that drivers' could get time off•by "merely announc- ing it, and that Maxwell could only "beg" a driver to work'even when the Company was+shortIianded, are in= credible. If - the drivers had complete freedom to -decide when they would work,- Respondent could not,have ful- filled its responsibilities to its customers. I also credit the employee evidence that Maxwell could authorize drivers to work overtime. •Langello's denial, asserting that-"automatic overtime was'built into" 853 - the drivers' jobs, is contradicted by the provisions of the last contract, which require pay at 1-1/2-times the regu- lar rate for all work over 40 hours performed "at the re- quest of supervision. . .."29 It is thus clear that some managerial decision was required-in order to-authorize overtime pay under,the last collective-bargaining agree- ment, and that at certain times the dispatchers were the only ones in the plant available to make those decisions. In this respect, the most unbelievable aspect of Langel- lo's testimony is that he was the only person in-charge of the plant at all times, -even though-it opened -at 4 a.m., and stayed open until the last truck arrived at the end of the day, including times when Langello was not present. Finally; Langello's testimony has little probative value on the issues pertaining to the employees' offers to return to work, since all of those offers took place after July 31; 1980, by which time Langello had departed from the plant and had no direct knowledge concerning it. G. Legal Conclusions 1. The alleged violations.of Section 8(a)(1) - If is clear that Respondent unlawfully interfered with its employees' Section 7 rights prior to the strike on May 51-1980. Thus, about April 1, it denied employee Sim- mons a loan against his pension fund equity, contrary to prior practice: Langello's statement that he refused Sim- request because the employees were going out on strike shows that his action was intended as a reprisal for Simmons' and other employees' union activities. The Board has 'concluded with judicial approval that such conduct violates Section 8(a)(1).30 Langello's statement that he was "freezing up" on such loans also constituted a threat to withhold such advances from other employ- ees, and was also violative of the Act. Sheldon Pontiac, 199 NLRB 950 (1972). Langello told employee Benjamin in April that Union Representative Jones' failure to "settle the contract" by' December 15 was the reason the employees did not get a retroactive pay raise. This statement was misleading in that it failed to note that the employees themselves voted to reject the December proposal, and the statement therefore tended to disparage the Union and undermine its support among the employees, in violation of Section 8(a)(1).31 In addition, Langello's asking Benjamin'during this same conversation" whether he would be able to pay' his union dues if the Company did not deduct them con- stituted unlawful interrogation. As indicated above, I have credited Johnson's testimo- ny that about: April 16, Langello told Johnson and Hill that they could make the same money working by the piece rather than by the hour, and that they did not need a union to keep their jobs or to negotiate raises. This was a suggestion which Langello had never made at the bar- gaining table. Economic issues in general , and wage rates 29 G C Exh 6, sec 30 2, art XXX - 20 Chicago Master Mattress & Furniture Co, 196 NLRB 579 (1972), enfd 471 F 2d 654 (6th Cir 1972) See also Central Distributing Co, 187 NLRB 908 (1971), and Pdlowtex Corp, 187 NLRB 693 (1971) 31 St. Joseph's Hospital, 247 NLRB 869, 878 (1980), Southern Florida Hotel, 245 NLRB 561, 601 (1979) 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in particular, were among the principal issues separating - Respondent and the Union during the bargaining, and Langello's statement to Johnson and Hill, while this bar- gaining was in progress, amounted to an offer to negoti- ate directly with employees, thus bypassing the Union. I conclude that Respondent thereby violated Section 8(a)(1). Hickman, - Williams & Co., 240 NLRB 81; 84 (1979). Although the amended complaint alleges this conversation to be unlawful because Respondent -prom- ised its employees better pay if they would refrain from engaging in union activity, the incident falls within the general allegations of the complaint and was fully litigat- ed. - - Respondent's unlawful coercion continued on the same day that the strike began, May 5. Thus, Langello's state- ment to employees that he would not hire anybody back because they had struck was unlawful. Ponderosa Hotel & Casino, 233 NLRB 92 (1977). On the same day Langello also told Simmons in effect that he would not sign a contract with a checkoff clause, a statement which the Board has held to be unlawful. Taylor-Dunn Mfg. Co., 252 NLRB 799 (1980). 'In a slight variation a few weeks later, Langello told Benjamin that the Company would not sign a contract unless it was the kind Langello wanted to sign. The Board has held that employer statements telling employees that it will not sign - a contract with the union are unlawful.32 The Board explained these holdings, with judicial approval, in the following language: Although the Act does not compel an employer to agree to any specific proposals made by a bar.- gaining agent, and an employer is free to so inform employees, an employer's announcement to employ- ees of its disinclination in advance to agree to any bargaining proposals or to reach any overall agree- ment with the bargaining agent stands on an entire- ly different footing. The Board has long recognized that statements of this latter .kind amount to an an- ticipatory refusal to bargain and inculcate, in em- ployees a sense of futility about the ,exercise of free choice in selecting a representative 1 or collective bargaining. Hence, the Board has 'held that such statements constitute unlawful interference with the exercise of Section 7 rights. [El Rancho Market, 235 NLRB 468, 472 (1978), enfd. 603 F,2d 223 (9th Cir. 1979)]. - It is true that Langello's statement to Benjamin was not an anticipatory refusal to sign any contract. Howev- er, his statement took place after a long bargaining histo- ry in which Respondent first agreed to enlarge the previ- ous checkoff provision with'drive checkoff, and later re- fused to sign a contract with any checkoff provision whatever. The Board has agreed that where an employer said he' would not sign a contract "under present condi- tions," there was an implication that no contract would be signed. Leggett & Platt, Inc., 230 NLRB 463 (1977). Under the circumstances herein, a similar implication is 32 Kurz-Kasch. Inc, 239 NLRB 1044 (1978); Holding Co, 321 NLRB 383, 384 (1977). contained in Langello's statement to Benjamin, since "the kind of contract Respondent wanted" could not have in- cluded a checkoff 'clause. I therefore find Langello's- statement to Benjamin , as well as one to Simmons, to be violative of Section 8(a)(1). As' described above, the credited evidence shows that Langello' asked 'strikers Harris, Thompson, Benjamin, Simmons, Lane, and Rudd to return to work. Most of the solicitations took place on the picket line. In some in- stances Langello also asked how long the 'strike was going to last, or whether the striker was. going to stand out there forever. The solicitations were generally unac- companied by any promise of benefit, except in Thomp- son's case, where Langello told him that he could drive a front-end truck if he came back-to work. 33 In some in- stances Langello noted the unfavorable economic effect of picketing, telling Rudd that he was not making any money with the picket sign, and Simmons that he knew the latter was "hurting," making only $45 a week. The Board has held that an employer's solicitation of an economic striker to return to work, without offering him any benefits, does not violate the Act. Romo Paper Products Corp., 208 NLRB -644 (1974). However, in an earlier case, the Board made a distinction among such so- licitations: - • • It is well established that where . `.. the employees have 'duly designated their collective bargaining representative, the employer is -obligated to deal with that representative, and not with the employ- ees individually. True, as the as the Trial Examiner found, no threats were made or inducements offered with the' solicitations, and the Respondent continued to express a willingness to resume negotiations with the Union. But repeated oral, personal appeals to in- dividual strikers to' take action in derogation of their, designated representative . . are to be distin- guished from appeals directed primarily towards in- ducing action by that representative . . . . Indeed, [the employer] left no doubt in the minds of the em- ployees that his appeals were not addressed to the Union, for he told the pickets that he would not invite a conference with the Union "until Hell freezes over." Upon the record in this case,. we are convinced and find that, by soliciting the individual employees to. return to work, the Respondent sought to undermine the Union's authority as the exclusive collective bargaining, representative ;of • its employees, and thereby violated -Section 8(l)of the Act. [Samuel. Bingham's Son Mfg. Co., , 80 • NLRB_ , 1612 at 1613-14 (1948).] In a later case involving unfair labor; practice strikers, some of the solicitations were simplyto.return.to work, whereas others were coupled, with, various coercive • 1 7; - 8' As described above, shop foreman Carson had taken Thompson off front-end trucks, an order later countermanded by,Langello It is reason- able to infer, in these circumstances, that Lange llo's solicitation to Thompson to return to work contained an inducement that he could con= tinue to drive front-end trucks SCA SERVICES OF GEORGIA statements. The Board, with judicial approval, adopted the following language of the administrative law judge: Accordingly, finding the enumerated solicitations constituted an integral part of a pattern of illegal- opposition to the purposes of the Act as evidenced by the Respondent's entire course of conduct, and that the solicitations were conducted under circum- stances and in a manner reasonably calculated to . undermine the strikers' collective-bargaining repre- sentative, and to demonstrate that the - Employer sought individual rather than collective bargaining, I find, in each instance, that the conduct constituted coercion and was violative of the provisions of Sec-. tion 8(a)(1) of the Act. [Ramona's Mexican Food Products, 203 NLRB 663, 682 (1973), e_nfd. 531 F.2d 390 (9th Cir. 1975).]34 As described above, the record shows a series of ac- tions by Respondent which were violative of Section 8(a)(1), including an attempt at direct dealing with an employee. These actions, and the pattern of Respondent's . solicitations of the strikers to abandon the strike and return to work, were accompanied by other statements showing that Respondent's execution of a contract was unlikely. Under these circumstances, Respondent's solici- tations were "reasonably calculated to undermine the strikers' collective bargaining representative, and to dem- onstrate that the Employer sought individual rather than collective bargaining." (Id.) Moreover, for reasons eluci- dated hereinafter, the strike was an unfair labor practice strike, and the strikers'were unfair labor practice strikers. Accordingly, Respondent's solicitations of the strikers to abandon the strike and return to work were violative of Section 8(a)(1). To the extent that some of Langello's statements constituted merely inquiries as to the duration of the strike, they constituted unlawful interrogation under established Board law. 2. The, alleged violation of Section - 8(a)(5) a. Factual summary The credited evidence shows that Respondent made its final wage offer at the first bargaining session, on Octo- ber 11, 1979, and said that the Union could take it and do whatever it wanted with it, but that "that's all'of it." Respondent never varied from this position. There was agreement on many • "no change" clauses from the prior contract. Thus, the Company agreed to the' prior checkoff provision, and agreed-to an 'additional clause permitting checkoff for union -political purposes (drive checkoff). Since the old' contract ended on No- vember 8, the Company agreed 'to pay any wage in- crease, subsequently agreed upon, through November 30, a -period which it later extended- to December 15, condi- tioned 'upon union acceptance by that 'date.' The condi- tion applied only to retroactivity of `the wage "increase, not to Respondent's entire offer. 94 See also Ramada Inn South, 206 NLRB 210, 219 (1973), where the Board held that direct solicitation of unfair labor practice strikers to abandon the strike was violative of Sec. 8(a)(1) , ' , 855 The Union rejected this offer early in December, and, on December 17, Respondent 'unilaterally implemented its provisions effective December 7, 1979. There was tel- ephonic communication between the parties in January and February 1980. On January 31, 1980; Respondent terminated its checkoff of dues it had been making pursu- ant to the expired contract. The Company granted union requests on some noneco- nomic issues, the exact number of which is unclear. By the end of the next bargaining session in March, howev- er, there was no further dispute over these matters. , At the March 5 bargaining session the Union asked for an increase in the pension- fund and sick leave, both of which requests the Company refused. The Union first pressed for and then dropped its demand for retroactive payment of the wage increase-amounting to about 4 weeks' pay from the expiration of the last contract to the Company's unilateral institution of its wage offer on De- cember 7. The Union then proposed that the contract be signed "as is." Respondent refused, saying it would ; not sign a contract with a checkoff clause. The Union sug- gested that the contract nonetheless be signed, with the checkoff issue to be arbitrated. The Company refused. At the April 9 meeting the Company again reiterated its opposition to checkoff, but manifested an apparent change of mind and--agreed to get a contract together for the next meeting. Although the Company contended and - the Union denied that the Union had demanded checkoff ' of back dues, i.e., those which were uncollected since the. January 31 termination of checkoff, the Company agreed that' the Union dropped this demand by April 9. The Union's denial that this was ever an issue is credited. On April 11 the` Company wrote the Union that its ac- ceptance of the • company offer was invalid, since" the offer had expired on -December 15. This' statement was false, -since the only part of the company offer which had' expired according to its terms was the wage retroactivity offer, and the Union had already dropped its demand on this issue. The Company alleged changed `circumstances making its' former offer no longer appropriate, but sub- mitted no documentation, and, by its unilateral wage in- crease, showed that there was non economic reason for withdrawing its offer. The "next meeting 'was scheduled for April 16. The union representatives arrived and waited 3 hours. The company representative then appeared and said ' there was no point in having a meeting, since he had not put a contract together. The Company _ had previously can- celed several meetings: At a meeting onApril 28, the Union again offered to accept the Company's pay proposal and ; -"settle the-' thing," but no contract was signed . Iii , subsequent tele- phone, -conversations, the company 'representative told: the 'Union that the Company had signed contracts else where without checkoff clauses,'-that it would not, sign one 'in ' Atlanta; with' such 'a clause, 'and that the Union,', ' . could strike if it wanted to do so. ' , The Union presented ' a contract with stronger terms on May 5, with a statement that it would drop them if the Company would sign a contract. No contract was signed, and the strike began. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was one bargaining session during the strike, on July 1. The Union said that it would try to get a con- tract accepted without a checkoff clause, which was the last issue separating the parties. The Company did not accept this proposal. b. Legal analysis and conclusions (1) Respondent's procedural arguments. The amended complaint alleges that Respondent re- fused to bargain collectively with the Union since March 5, 1980. In an opening statement, the General Counsel argued that Respondent had engaged in surface bargain- ing, citing some of- Respondent's specific-, acts which were later established by the- evidence described above. In Respondent's opening statement, counsel argued that the complaint did not allege bad-faith bargaining until- March 5, 1980, 6 or 7 months after the complaint began. When the General Counsel attempted to elicit testimo- ny from his first witness (Langello), Respondent object- ed, partially on the ground that "surface bargaining" is not alleged in the complaint, and that the General Coun- sel "is obligated to put [Respondent] on notice vis-a-vis the specifics of the allegations and complaint." In its brief, Respondent argues that the Regional Director did- not issue a complaint on a surface bargaining theory, be cause the alleged March' S date was several months after bargaining began, "where, by definition, surface bargain- ing is bargaining from the outset with no real intention to reach agreement."35 Respondent also objected to re- ceipt of evidence of the early bargaining sessions on the ground that this is barred by Section 10(b) of the Act. I interpret Respondent' s statements as three arguments: (1) that the complaint cannot possibly be based on a sur- face bargaining theory for the reasons given by Respond- ent; (2). that a complaint alleging a refusal to bargain on a surface bargaining theory denies Respondent due process of law if it fails to specify the acts on which the theory is based; and (3) the Section 10(b) contention. None of these arguments has merit. Concerning the first argument, Section 3(d) of the Act gives the General Counsel final authority, on behalf of the Board, to issue and prosecute complaints. Respond- ent in effect claims that the General Counsel does not know the meaning _ of his own complaint, a position which I do not accept regardless of the validity of the complaint itself. Respondent submits no authority for its own definition of surface bargaining as bargaining with bad faith "from the outset" of negotiations, and there is no rational basis for such a definition. Good and bad faith are subjective states of mind, and may change with great rapidity. The Board has not hesitated to find that an employer ultimately engaged in bad-faith bargaining despite the fact that the evidence was "clear that both the Company and the Union were negotiating in good faith- during the (first) three bargaining sessions . . . Northfield Cheese Co., 242 NLRB 1117, 1118 (1979), enfd. 620 F.2d 289 (3d Cir. 1980). I therefore reject Re- spondent's first argument. 31 R Br 8 Respondent's due process argument is also groundless. The complaint alleges that Respondent refused to bar- gain collectively, and Section 8(d) of the Act defines this in part as the obligation "to meet at reasonable times and confer in good faith . ..." The Board's rules require only that the complaint contain a clear and precise de- scription of the "acts" which are claimed to constitute unfair labor practices,36 -whereas surface bargaining, as explicated hereinafter, involves bargaining with a par- ticular state of mind rather than engaging in, particular acts. The Board has found violations of surface bargaining based on general allegations similar to that herein.37 "[I]t is settled law that particularity of pleading is not re- quired of a complaint issued by the Board," Bob's-Casing Crews v. NLRB, 458 F.2d 1301 (5th Cir. 1972), enfg. 192 NLRB 1 (1971), and that the General Counsel is not re- quired -to plead his evidence in its, entirety. Fall River Savings Bank, 250 NLRB 935 fn. 4 (1980), enfd. 649 F.2d 50 (1st Cir. 1981). In an allegation of surface bargaining,' unlike individual acts alleged to be violative of Section 8(a)(5), the ultimate fact which is alleged is bargaining with a particular state of mind, as to which the individ- ual acts are merely the evidence and need not be plead- ed. ' Respondent had full opportunity to cross-examine the General Counsel's witnesses, and did so. It also had an opportunity to request a continuance on the ground of surprise, but did not do so. Under similar circumstances where the complaint alleged only that the respondent union" operated a hiring hall in an "arbitrary, capricious, and 'unfair manner," the Board found that the union had engaged in threats and violence, and was sustained by the Court of Appeals for the Ninth Circuit, in part on the ground that' the issues were fully and fairly litigated, and that respondent had cross-examined the witnesses and had not requested a continuance. Iron Workers Local 433 (AGC of California), 228 NLRB 1420 (1977), enfd. 600 F.2d 770 (9th Cir. 1979). This result follows a for- tiori in a surface bargaining case, because in such cases the individual actions on which the allegation is based are peculiarly within the knowledge of the employer that did the bargaining: Respondent's 10(b) argument is also without founda- tion. Although some. of the evidence of the bargaining history, elicited' by the General Counsel, took place outsie the 6-month period of limitation, this was specified by the General Counsel to be only background evidence, while the date of the refusal to bargain as alleged in the complaint took place within that period. "It is well set- tled that the Board can and will consider events transpir- ing more than 6 months before the filing of a charge to shed light on the true character of matters occurring within the limitation period, even though under Section 10(b) such conduct cannot itself 'constitute an unfair labor practice." Southeast Texas Television Corp., 226 NLRB 1340, 1341 (1976). 36 Rules and Regulations of the National Labor Relations Board, Sec 102 15 34 Carbonex Coal Co, 248 NLRB 779 (1980), Brownsboro Hills Nursing Home, 244 NLRB 269 (1979), Pillowtex Corp, supra fn. 30 SCA SERVICES OF.GEORGIA •(2) The issue of whether Respondent bargained in good faith Much has been written about the meaning of the re- quirement of "good faith" bargaining. The Supreme Court stated it as follows: , Collective bargaining is something more than the mere meeting of an employer with the representa- tives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground . . . . [NLRB v. In- surance Agents, 361 U.S. 477, 485 ( 1960).] The Board recently adopted the following summary of the matter: The standard described is usually characterized as difficult of application. The emphasis, however, on the requisite "serious," "sincere," "unpretending," "honest," intention to "adjust differences," "to reach an acceptable common ground," to "arrive at an agreement," affords a helpful approach for eval- uating an- employer's performance. While it is rec- ognized as a general proposition that an employer is not required to make concessions or to yield any positions fairly maintained [authority cited], the courts have equally acknowledged that authority of the Board to examine those positions in order to de- termine whether the employer has made a "sincere" effort to "adjust differences." Adroitness, it is rec- ognized, may sometimes be employed to mask insin- cerity of purpose. "[B]ad faith is prohibited even though done-with sophistication and finesse. Conse- quently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a pur- posefull strategy to make bargaining futile or fail." [authority cited] For that reason, "[I]t seems clear that if the Board is not to be blinded by empty talk and by the mere surface motions of collective bar- gaining, it must take some cognizance of the reason- ableness of the positions taken by an employer in the course of -bargaining negotiations." [authority cited] [J. P. Stevens & Co., Inc., 239 NLRB 738, 762 (1978), enfd. as modified 623 F.2d 322 (4th Cir. 1980).] This record contains indicia of bad-faith bargaining by Respondent. Thus, the Company had agreed to a check- off clause in its prior contract, but refused to include one in a new agreement, on the sole ground that it had signed contracts elsewhere without such clauses. The Board has concluded, with judicial approval, that an em- ployer's withdrawal of a long-standing agreement to check off union dues is an indication that it is not bar- gaining in good faith. Northfield Cheese Co., supra.38 Re- spondent's position in the March and April bargaining sessions evidenced a fixed intention not to agree to a checkoff clause, which has also been held to evidence s8 See also K & S Circuits, 255 NLRB 1270 (1981), Harowe Servo Con- trols, 250 NLRB 958 (1980) 857 bad faith. Rockingham Machine-Lunex Co., 255 NLRB 89 (1981), enfd. 665 F.2d 303 (8th Cir. 1981).39 Respondent did agree to renewal of the checkoff clause in the early bargaining. In fact, it went even fur- ther and consented to an additional checkoff clause for union political purposes. By March -1980, however, the Company rescinded its prior agreement and did not ad- vance any good cause for doing so. Its asserted "changed circumstances" did not apply to the checkoff dispute, and were without foundation. Indeed, the only reason as- serted by Langello ;was the fact that the Company had signed contracts elsewhere without checkoff clauses, a fact which was irrelevant to his dispute with the Union. The courts have agreed with the Board that such with- drawal from positions formerly agreed upon constitutes evidence that the employer is not seeking an agreement in good faith. Rockingham Machine-Lunex Co., supra; Hartford Fire Insurance Co., 191 NLRB 563 (1971), enfd. 456 F.2d 201 (8th Cir. 1972). Other evidence that Respondent was not seriously seeking agreement was its take-it-or-leave-it attitude on its wage proposal. Its final offer on this subject was made at the initial bargaining session . That "was it," Langello said; the Union could do whatever it wanted, but that was "all of it." This attitude never varied during the remainder of the bargaining. A rigid and fixed posi- tion like this, particularly on economic proposals, has been considered by the Board to be an indicator of bad faith .40 Respondent's cancelation of the April 16 meeting without good cause, after promising that it would have a contract prepared for that meeting, constitutes additional evidence. As described above, Respondent engaged in conduct away from the bargaining table which was violative of Section 8(a)(1), and manifested an intention to undermine the Union. These away-from-the-table actions constitute additional indicia that the Company was not really seek- ing agreement in good faith. Smith's Complete Market, 237 NLRB 1424 (1978). Finally, at the last bargaining session, on July 1, 1980, Jones said he would try to get the men to agree to a contract without a checkoff clause. This was the last issue on which the parties disagreed, and Jones had previously told Langello that "the whole world (was) going to come down on (him)" if he signed a contract without this clause. The union agent's statement on July 1 there- fore amounted to complete surrender by the Union on all issues-if only the Company would sign a contract. Lan- gello, however, was not interested. This indifference to a contract on any terms whatever-even the Company's- is the last and compelling evidence which, added to Re- spondent's other conduct, shows that it did not have a "serious intent to adjust differences and to reach an ac- ceptable common ground." NLRB v. Insurance Agents, supra. With respect to majority status, Respondent admits that the Union was certified in' November 1970, but denies that it currently represents a majority of the em- 39 See also Hospitality Motor Inn, 249 NLRB 1036 (1980) 40 Endo Laboratories, 239 NLRB 1074 (1978), Borg-Warner Controls, 198 NLRB 726 (1972) 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, relying on ,the decertification petition signed by employees in mid-July 1980. It is obvious, however, that by that time almost all of the strikers had been replaced by new employees, and that the petition was signed, in substantial' part by these replacements; in the context 'of Respondent's unfair labor practices. It is settled law that the petition is tainted under such circumstances, and cannot serve as an objective consideration supporting a good-faith' doubt of the Union's majority status.4 i Rely- ing on the presumption of majority status established by the certification and Respondent's subsequent recognition of the Union, I conclude that it was and is the collective- bargaining representative of the employees in the appro- priate unit set forth in the, last contract.42 I further con- clude that- Respondent bargained with the Union since March 5, 1980,, without any serious intention of reaching agreement, and thereby violated Section 8(a)(5) and (1) of the Act. - " 3. The nature of the strike The General Counsel argues that the employees struck because Respondent refused to enter; into a contract and attempted -to undermine the Union. Even if the strike -was prompted in part-or, primarily by economic issues, a finding that it was an unfair labor: practice , strike is not precluded as long as unfair labor practices were a con tributing,factor in the decison to- strike.' 3 - - Respondent contends that, the Union struck in an at- tempt to force the Company to agree to its contract de- mands, and that, the strike was therefore economic in nature. Respondent. points to what it says ' was the lan- guage on the picket signs-"On Strike For Better Pay and Working Conditions"-and argues that this econom- ic language shows the nature of ithe'stnke. Even if there were prestrike unfair labor practices, there were only two of them, and they' were "isolated- one-on-one discus- sions",not ,shown' to have been communicated'-to other employees.' Respondent cites other; cases holding that the strike was economic iii nature despite the eiitployer's unfair labor practices. 44 ` The bargaining history, shows that, although there were economic issues separating thetpa'rties at'the begin- ning, these gradually diminished as the bargaining, pro- gressed. For all practical purposes, the principal 'econom- ic-dispute-the amount of a wage increase-disappeared in December 1979 when the Company unilaterally imple- mented its 'own offer after the Union Ihad -refused it. The Union did- not engage in !a strike at that time; and' accept- ;. .. _ ,. , .^_ ed the new;'wage structure as a fait accompli. Although the Union's 'demand 'for' 're,troactivity of the wage in- crease continued as an issue for some time, - this- was dropped' at the March 5' bargaining' session; as were the =4i -Fort Wayne 'Ne'wspapers,( 247' NLRB :548 :(1980), Fred' Tuch Buick, 199 NLRB 876 (1972) + '1 C-111 . , 4z-A1L truck dnve'rs,• compactor i nstallation and maintenance men, me- chanics; mechanics' helpers, container repairmen; laborers and tire repair- men employed at Respondent 's Atlanta, Georgia operation, but excluding all clencal-empldyees;'tecHriical employees, professional employees,-sales- men, guards and/or watchmen , dispatchers, and supervisors as defined in the National Labor Relations Act. 43GC Br'9-10. 44R Br 30-35 rest of the Union's economic demands. By the time of that session, the Union would have been content with the contract "as is." It was at the March 5 meeting that Respondent execut- ed its turnabout on the checkoff issue, which prompted the union acusation that the Company was out to "bust the Union." Respondent's new position on checkoff was repeated at the April 9 meeting, and this' in turn was fol- lowed by the Company's letter rejecting, for spurious reasons, the' Union's • acceptance ' of the Company's De- cember offer. On April 16, Langello left the union com- mittee waiting for 3 hours, and then 'canceled the meet- ing because he had not prepared a contract. Finally, when the Union again offered to "settle the thing" on April 28, the Company repeated its refusal to sign a contract with a checkoff clause. In a subsequent telephone conversation with Langello, Jones again af- firmed his intention to accept the company proposal "as is," but Langello was adamant on the checkoff issue. There is nothing in this denouement to suggest that the bargaining broke down over economic issues. The Union had conceded all of these, and was clinging only to its hope for a checkoff clause. I conclude that it had become apparent to the union negotiators by late April that the Company would not sign' a contract on any rea- sonable terms. On May 5, Jones handed Langello a letter stating that the Union had been forced. to consider a strike because the Company had insisted on refusing to bargain "in good faith" (G.C. = Exh. 4). This letter is ex- plicit and persuasive evidence of the real'reason for the strike. ', ' 'The stipulation of the parties' as to the picket sign lan- guage, relied on by Respondent, is weakened by Harris' testimony on - cross'examination that 'his' sign protested the Company's unfair labor-practices -and' failure io sign a contract. In any event, picket sign language is not' deter- minative of the issue. of a strike objective' when other evidence indicates a different objecf.- 'Happ Bros. Co., 90 NLRB 1513, '1516 (1950), enf. denied on. other'grounds 196 F.2d 195 (5th Cir. 1952). Such other. evidence con- sists of Jones' letter delivered to Langello,on May, 5, and is buttressed by the strikers' statements to Langello' on the picket line. The employees uniformly rejected Lan- gello's invitations' to return to work, on the ground that he had failed- to sign a contract, not because they were demanding better wages or working conditions. • Respondent,is incorrect in its assertion that there were only two prestrike unfair labor practices.. There were three: Langello's -. (a)- refusal to; grant , Simmons . an, ad- vaiice,against his pension fund, equity and threat, to, deny similar advances , to other employees,, (b) attempt to, un- dermine the Union by, telling -Benjamin that • Jones. was responsible for the employees" failure=to obtain a •retoac- tive wage increase, and (c) attempt to bypass the Union by negotiating,directly, with Johnson and Hill concerning a piece 'rate ;method' of compensation.,. Nora were (these "isolated, one-on-one' discussions," as' Respondent con. tends. The last discussion obviously involved more than one employee. Further, Langello's threati to withhold ad- vances from other. employees, made to Simmons, was-of SCA SERVICES OF GEORGIA such nature as to make it likely that it was communicat- ed to other employees. I conclude that the strike was caused by the Union's perception in late April and early May that Langello had no real intention of reaching agreement. "By its demon- strated unwillingness to engage in meaningful negotia- tion, Respondent fustrated and undermined the collec- tive-bargaining process." Preterm, Inc., 240 NLRB 654 (1979).45 As the Court of Appeals for the Fourth Cicurit stated it, Respondent's prestrike bargaining tactics were "a proximate cause of the strike." Newport News Ship- building v. NLRB, 602 F.2d 73 (4th Cir. 1979), enfg. 236 NLRB 1637 (1978). Respondent's prestrike independent unfair labor practices, some of which tended to under- mine the Union, also caused it to conclude that the Com- pany was not bargaining in good faith. I therefore find that the strike was an unfair labor practice strike from its inception. I also conclude that the strike was prolonged by Respondent's continuing unfair labor practices, and by its refusal on July 1 to consider a contract on any terms. 4. The alleged violations of Section 8(a)(3) a. Factual summary As set forth above, the original charge was filed on July 21, 1980, and alleged violations of Section 8(a)(5) and (1). The charge also alleged that the employer was "engaging in conduct designed to undermine the status of said labor organization as bargaining agent," and was, by these "and other acts," interfering with its employees' Section 7 rights. The amended charge was filed and served on Respondent on May 20, 1981. It alleged that the employer discriminatorily refused to timely reinstate 19 employes, including Phillip Harris, George Lane, Lloyd Thompson, Willie Paul Johnson Jr., and Milton Hill, but not Willie Simmons. The charge has the same standard clause referring to "other acts" as the original charge. The amended complaint alleges that' Respondent discriminatorily refused to reinstate all six employees named above.48 As described above, the alleged discriminatees made unconditional offers to return to work at Various times. Although the exact date is not always clear in each case, I find the following to be the most probable dates based on the evidence: Milton Hill, August 29, 1980; Willie Simmons, September 30, 1980; Phillip Harris, October 1, 1980; Lloyd Thompson, October 30, 1980; George Lane, November 15, -1980; and Willie Paul Johnson Jr:, No- vember 15, 1980. Respondent did not call, as witnesses, any of the indi- viduals to -whom' these offers were made, and' the testi- monies of the six alleged discriminatees were therefore uncontradicted. However, they'were subjected to cross- examination' by Respondent, and the Company- elicited 45 See also' Billion Oldsmobile Toyota, 260 NLRB 745 fn `2(1982), St Louis Neighborhood Health Center, 248 NLRB 1078, 1083 (1980), 0 & F Machine Products Co, 239 NLRB 1013,-1020 (1978) 46 At the hearing, Respondent protested Simmons' inclusion in the complaint, on the ground that he was not mentioned in the charge. Re- spondent's brief, however, contends thai it was Milton Hill who was not named in the charge (R Br 2, fn 2) This is erroneous • 859 testimony from Langello seeking to establish that two of the individuals to whom the employee offers were di- rected were not supervisors. b. Respondent's defense and the General Counsel's answer Respondent argues that the allegation of discrimination in the complaint is time barred by Section 10(b) of the Act because the Company's alleged refusal to reinstate the strikers took place more than 6 months prior to the filing of the amended charge. Based on my findings above, Respondent is correct in its assertion that the offers to return to work, and Respondent's refusals, took place more than 6 months before the filing and service of the amended charge.47 - The General Counsel cites the "catchall" clause in the original charge, and argues that the amended charge "re- lates back" to this charge, citing various cases.48 Re- spondent counters with the argument that the "relation back doctrine" does not apply since the alleged discrimi- nation took place after, rather than before, the filing of the original charge (but still more than 6 months before the filing of the amended charge). Under these circum- stances, Respondent appears to argue, there is nothing to which the amended charge can relate.49 Alternatively, the General Counsel argues that the language in the original charge that the Employer was engaging in con- duct "designed to undermine the status of the Union," as well'as the "catchall" clause, is sufficiently broad to war- rant a finding of discrimination. Respondent denies this, citing principally Champion Pneumatic Machinery Co.; 152 NLRB 300 (1965). c. Legal anylsis and conclusions Section 10(b) of the Act states in pertinent part of "no complaint shall issue based upon any unfair labor prac- tice occurring more than six months prior to the filing of the charge with the Board' and the service of a copy thereof upon the person against whom such charge-is made . - . ." In an early analysis of the section, the Supreme Court stated: Whatever restrictions the requirements of a charge may be thought to place upon subsequent proceed- ings by the Board, we can find no warrant in the language or purposes of the Act for saying that it precludes the Board from dealing adequately with unfair labor practices which are ,related to those al- 44 The amended complaint alleges that Johnson 's offer was made on April 21, 1981, which, if correct, would place it within the period of limi- tation However, I have credited Johnson's testimony that he had a con- versation with Ross Povey in mid-November 1980, and then asked to return to work 48 Sunrise Manor Nursing Home, 199 NLRB 1120 (1972), South Shore Hospital, 256 NLRB 1 (1981), Keystone Seneca Wire Cloth Co, 244 NLRB 398'(1979). ' . 49-Respondent cites Go-Cat, Inc ,257 NLRB 270 (1981), Harris-Teeter Super Markets, 242 NLRB 132, 153-154 (1979), Gulf States Mfg, 230 NLRB 555 (1977), Asko, Inc, 202 NLRB 330 (1973), Herald Co, 181 NLRB 421 (1970), Knickerbocker Mfg Co, 109 NLRB 1195, 1196-97 (1954) ' 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leged in the charge and which grow,out of them while the proceeding is pending before the Board. The violations alleged in the' complaint and found by the Board were but a prolongation of the at- tempt to form the company union and to secure the contracts alleged in the charge. All are of the same class of violations as those set up in the charge and were continuations' of them in pursuance' of the 'same objects. The Board's jurisdiction having been invoked to deal with the first steps, it had authority to deal with those which followed as a 'consequence of those already taken. A charge filed with the Labor Board is, not to be measured by the standards applicable to a pleading in a private lawsuit Its purpose is merely to-set in motion the machinery of an inquiry. _ Once its jurisdiction is invoked the Board must be free to make full-inquiry under its broad investi- gatory power in order properly to discharge. the duty of protecting public rights which" Congress has imposed upon it. There. can be no justification for confining such- an inquiry to the precise particular- izations of a charge. " . . What has been said is not to imply that the. Board is . . . to be left "carte blanche" to' expand the ' charge -'as they might please, ' or 'to ignore it alto- gether. [authority cited] Here we hold only that the Board is not precluded from. "dealing ; adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is 'pending before the 'Board!" [authority cited] [NLRB v. Fant Milling Co., .360 U S. 301, 306-309 (1959).] ' ' - Five years later, the Court ofAppeals;for the Fifth Circuit interpreted Section 10(b), in light of Pant Milling and other authority, as follows: 'It is "established that this section precludes the Board from issuing a complaint on its own' initia= tive, and that a charge is a prerequisite' to the insti- tution of proceedings before the Board. [authority cited] However, the.charge is not a formal pleading, and its function is not to'give notice to the respond- ent' of the exact :nature of the=. charges'against him'. [authority. cited]' This is the function-of the com- plaint. The 'charge 'rather,' serves merely to set in motion=the investigatory machinery of the Board. It is• largely' for 'the beneift of the `Board, not the 'r'e- spondent, so that it may • intelligently determine -whether and towhat-extent an investigation' is war- ranted. Consegliently;' th'e Board ` has • considerable leeway •'to found' a complaint. on events' other than those specifically `set -forth! in`:the charge, the only limitation' beirig' that' the•'Board 'may not get "so" completely outside . . . the charge that it may be initiating the- proceeding on its own motion .. . [authority cited] Texas Industries, Inc.' v. NLRB, 336 F.2d 128 (5th Cir. 1964), enfg. as modified 139 NLRB 365 (1962).50 The Court of Appeals for the Fourth Circuit has re- cently" had occasion to apply-these principles. As de- scribed by the court, the procedural background was the filing of three unfair labor practice charges, and, thereaf- ter, an alleged discriminatory suspension of-an employee. The latter action was alleged as a violation in the com- plaint although it had never been set forth in a charge. In upholding the Board's finding of a violation, the court concluded that the challenged allegation related to other discrimination against the same employee which had been adjudicated by the Board. "The' practices com- plained of occurred within the same general time period and were part of the entire series of interrelated efforts by (the respondent) to discourage the unions' inclusion of outsiders on their bargaining team." Procter & Gamble Mfg. Co. v. NLRB, 658 F.2d 968 (4th Cir. 1981), enfg. as modified 248 NLRB 953 (1980). . In addition to instances where an unfair labor practice was alleged in the complaint, although' not set forth in the underlying' charge, the Board and the courts have found violations where the allegation was not even made in the complaint. These are cases where the matter was fully and fairly litigated at the hearing. See, e.g., Alexan- der's Restaurant &Lounge v. "NLRB, 586 F.2d 1300, (9th Cir. 1978), enfg. 228 NLRB 165 (1977), and authority cited'therein.'• A host of Board cases have found violations under one or both of these principles,' i.e., that the violation not spe- cifically charged was related to one that was charged, or that, although' not alleged, it was fully and fairly litigat- ed. s i I" conclude that a' finding of a violation of Section 8(a)(3) in the'instant case would' be procedurally war- ranted on either theory. Thus, Respondent's refusal to re- instate the • strikers' is inextricably interrelated with the violations of Section 8(a)(1) and (5) set forth in the origi- nal charge. Each of the strikers was involved in one or more of Langello's independent unfair labor practices, in- cluding those 'committed on the picket line, while two of the employees, Hill, and Lane, were present at one or more of the bargaining sessions. The refusals to reinstate strikers occurred at the end bf the strike, and were clear- ly part of Respondent's overall plan to avoid bargaining with the Union,_and, according to the decertification pe- tition, to remove it as the employees' statutory represent- '50 The court has continued to adhere to these views: See, e g , Gulf States Mfrs -v NLRB, 579 F2d"1298 (5th Cir 1978), enfg as modified 230 NLRB 558 (1977), NLRB v Sunnyland Packing Co., 557 F 2d 1157 (5th Cir ,1977), enfg 227 NLRB 590 (1976), NLRB v Central Power Co, 425 F 2d 1318 (5th Cir 1970), enfg 139 NLRB 287 (1968) 5i'Baytoit Sun, 255 NLRB 154 fn 1 (1981), Hacienda Hotel & Casino, 254 NLRB 56 fn' 2 (1981); Monteflore Hospital & Medical Center, 243 NLRB 681, ,694-6955 (1979), Niagara Falls Memorial Medical Center, 236 NLRB 342 in 2 (1978), Chateau de Ville, Inc, 233 NLRB 1161 fn 2 (1977),, AMC Air Conditioning Co, 232 NLRB 283, 285 (1977), Marcel Mfg. Corp., 231 NLRB 623 fn" 5 (1977), Kroger Co, 228 NLRB 149, 151 (1977), W & W Tool & Die Mfg Co, 225 NLRB 1000 (1976), Crown Zel- lerbach Corp, 225 NLRB 911, 912 (1976), Multi-Medical Convalescent & Nursing Center of Towson, 225 NLRB 529 fn 5 (1976), enfd 550 F 2d 974 (4th Cir 1977) " SCA SERVICES OF GEORGIA ative. In the language of the Court of Appeals for the Fourth Circuit, Respondent's denials of the strikers' rein- statement rights "occurred within the same general time period and were' part of the entire series of interrelated efforts by [the respondent] to discourage the union[s'] .. ." Procter & Gamble Mfg. Co., supra Nor can it, be said that the Board, in finding a violation based on such action, would be "proceeding on its own motion." Texas Industries, supra. Aside from the pleadings, the issue was thoroughly if not- exhaustively litigated: The Company may not claim surprise, since it made no such claim at the hearing, and since the amended complaint clearly put it on notice that the reinstatement issue was going to -be litigated. At the hearing, Respondent elicited abundant testimony from Langello seeking to establish that no effective offers to return to-work were ever made, and cross-examined the strikers. There is 'no suggestion anywhere in this record that Respondent-has been denied due process of law by' the Board's consideration of 'the reinstatement 'issue.' I therefore conclude that the issue is fairly before me.52 The same principles apply to the inclusion of Simmons' name in the complaint.53 This resolution of the procedural dispute resolves the only remaining significant legal issue concerning 'the 8(a)(3) allegation in the complaint, since I have previous- ly found that the strike was an unfair. labor practice strike, and that the strikers made unconditional 'offers to return to work. It is obvious that Respondent refused to reinstate them,54 and it is' settled law that such refusal is discriminatory. NLRB v. Gulf-Wandes Corp., '595 F.2d 1074 (5th Cir. 1979), enfg. as modified 233 NLRB 772 (1977). Accordingly, f find that Respondent's refusal to reinstate the six unfair labor practice strikers upo_ n their unconditional offers to return to work violated Section 8(a)(3) and (1) of the Act. In ' accordance, with my findings above, I ,make the fol-, lowing , CONCLUSIONS OF LAW - , 3 1. SCA Services of Georgia, Inc. is an employer' en gaged in commerce within the meaning of • Section= 2(6) and (7) of the Act. ' ' 52 In light of my conclusions above, I find it unnecessary to; resolve the' subtle issues of the "relation back" theory, debated by tale parties However, I note in passing that the-Board's statement of that'theory,• in' Sunrise Manor Nursing Home, supra, does not make a distinction between events occurring before or after the filing of the original charge (199 NLRB at 1121) Other cases in which the theory has ,been applied'make. it'questionable that ' the distinction is a ciucial 'one'See, eg, Staco, Inc; 244 NLRB 461, 468 (1979) 53 Respondent cites Camay Drilling Co, 254 NLRB 239 (1981), msup- port of its position ' on Simmons In that case the original charge: named 10 alleged discrimmatees, while the amended charge and ' the complaint named only 3 'The complaint' in Camay thus adhered 'to the amended charge, while the issue lierem is whether the complaint may'include an alleged discnminatee whose'name'does not appear in the charge-'a ques- tion to be decided by'application of the principle discussed, above Camay is therefore inapposite - v 54 Although Respondent did reemploy Willie Paul Johnson Jr on August 10,, 1981, this was,long after Johnson's offer to. return t -work on November 15, 1980 ' ' . 861 2., Truck Drivers and 'Helpers Local Union No. 728 is a labor organization within the meaning of Section 2(5) of the Act.' 3. By engaging in the following conduct, Respondent committed unfair labor practices in violation of the Act: (a) Refusing an employee's request for a loan or ad- vance against his pension fund equity, contrary to prior practice and in reprisal for said employee's union activi- ty. (b) Threatening _to refuse such loans or advances to other employees; contrary to prior practice and for simi- lar reasons.- (c) Bypassing and undermining the Union by offering to negotiate directly with employees concerning wages and other terms and conditions of employment. (d) Threatening not to reinstate unfair labor practice strikers. - (e) Telling employees that it will not sign a contract with a checkoff clause,'and that it will only sign the kind of.contract which it "wants. (f) Soliciting unfair labor practice strikers to abandon the strike.and return,to work. (g) .Interrogating unfair labor practice strikers as to their union and strike activities. 4.. The following unit is now, and has been at all times material herein, an appropriate unit for the purposes of collective bargaining with the meaning of Section 9(b) of the, Act. All truck drivers, compactor installation and main- tenance men, mechanics,. mechanics' helpers, con- tainer repairmen, laborers, and tire repairmen em- ployed at Respondent's- Atlanta, Georgia operation, .,bait excluding all clerical employees, technical em- ployees, 'professional ' employees, salesmen, guards .and/or watchmen, dispatchers, 'and. supervisors as defined in the National Labor Relations Act. 5. Since March 5, 1980, by bargaining with the Union without,a goodfaith` intention to, adjust differences and reacli` agreement,-` Respondent violated, Section 8(a)(5) and (1) of the Act. 6. On May 5, 1980, employees in the unit described above engaged in a strike. 7. The strike was caused and prolonged by Respond- ent's -unfair: labor practices described above, and the strikers were unfair labor practice strikers. -8. On the designed, date, opposite his name, each of the following, strikers made- an unconditional offer to return to .work: Milton. Hill-August 29; 1980; Willie Sim- mons-September 30, .1980; -Phillip Harris-October 1, 1980;, - Lloyd -Thompson-October, ,30, • 1980; George Lane ,,November 15, 1980; ' and, Willie,, Paul Johnson, Jr.-November..l5,; l980. , , - _ , • _ .9.,, Despite ,the. ,strikers' unconditional offers 'to return to,work,, Respondent has failed and refused to-reinstate all of-.them. It.did reemploy. Willie Paul Johnson Jr. on August.: 10,, ,1 981, . without backpay. _ and, without , assur- ances .as to his, seniority' and,, other rights' and privileges. 10. By its failure to reinstate the unfair labor practice strikers listed above, Respondent thereby violated Sec- tion 8(a)(3) and (1) of the, Act.; 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 12. Respondent has not _ violated the Act except as specified herein. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. It having been found that Respondent bargained with the Union without any serious intention of reaching agreement, it is recommended that it be required to bar- gain in good faith with such Union as the exclusive rep- resentative of all employees in the unit described above, and, if an understanding is reached , embody such agree- ment in a written, signed agreement. Since Respondent's unfair labor practices, which began on March 5, 1980, had a tendency to undermine .the Union's representative status, its obligation under a bargaining order should begin as of such date. Trading Port, Inc., 219 NLRB 298, 301 (1975). The General Counsel also requests reinstatement of the strikers as an appropriate remedy , with backpay begin- ning 5 days after each striker's ' request for reinstate- ment.55 In support of the 5 -day delay, counsel cites Astro Electronics, 188 NLRB 572 (1971), enfd. as modified 463 F.2d 176 (9th Cir. 1972); and D'Armigene, Inc., 148 NLRB 2 (1964), enfd. as modified 353 F.2d 406 (2d Cir. 1965). While these cases ' refer to the 5-day rule, the Board more recently stated the following: The Board has found that the 5-day period is a' rea- sonable accommodation 'between the interests of the employees in returning to work as quickly as possi- ble and the -employer's need to effectuate that return in an orderly manner ., Accordingly, if Re- spondent • herein has already _ rejected, or- hereafter rejects, unduly delays, or ignores any unconditional offer to return to work, or attaches unlawful condi- tions to its offer of reinstatement , the 5-day, period serves no useful purpose and backpay will com- merce as of the unconditional offer , to return to work. [Newport News Shipbuilding Co., 236 NLRB 1637, 1638 (1978), enfd . 602 F.2d 73 (4th Cir. 1979).] It is obvious in the instant ' case that Respondent has al- ready rejected and ignored the strikers ' requests -for rein- statement, or has delayed appropriate action thereon. jAc- cordingly,, there is no useful purpose for the 5-day delay in accruing , the backpay, due each striker." Nor; is there any purpose - in conditioning an offer of reinstatement upon a request for, same , since each employee has al- ready made ` such' request. Accordingly," I_' recommend that Respondent be ordered to offer the strikers immedi- ate and full reinstatement to their former jobs, or , if these jobs no longerexist, to substantially equivalent positions, without prejudice to -their seniority and other rights and 55 G C. Br. 12 privileges, dismissing, if necessary, persons hired on or after May 5 , 1980, and to make said strikers whole for any loss of earnings they may have suffered as a result of Respondent's refusal to reinstate them in a timely fash- ion, by paying to each of them a sum of money equal to that which he would have earned as wages during the period commencing on the date on which he uncondi- tionally offered to return to work, as 'specified in the sec- tion of this decision entitled "Conclusions of Law," to the date of Respondent's offer of reinstatement, less any net earnings during such period , with backpay and inter- est thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp ., 231 NLRB 651 (1977). 56 Newport News Shipbuilding, id. In the case of Willie Paul Johnson Jr., his backpay period begins on November 15, 1980, when he applied for reinstatement, and ends on August 10, 1981 , when Respondent reemployed him. I shall also recommend that Respondent be required to post appropriate notices. [Recommended Order omitted from publication.] 66 See generally Isis Plumbing Co, 138 NLRB 716 (1962) SUPPLEMENTAL DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. A hearing was conducted before me on August 31 and Sep- tember 31 , 1981, in the above-captioned matter, and my decision' issued on May 27, 1982. Thereafter, Respondent filed exceptions and a supporting brief and a motion to reopen the record and accept previously unavailable and newly discovered evidence . As stated by the Board, "Respondent's Motion contends, in essence, that subse- quent to the close of the hearing in this matter , the Gen- eral Counsel's witnesses Pierce Jones and Johnny Rudd were found guilty in United States District Court for the Northern , District of Georgia of, inter alia, withholding information, making false statements, and false identifica- tion , to obtain dynamite and blasting caps; interstate transportation of explosives without a license; manufac- ture of explosive devices; and planting and detonating such devices on Respondent's property. Respondent argues that the guilty verdicts entered against Jones and Rudd , affect the credibility of their testimony given in the hearing in this matter." By order dated February 7 and corrected February 13, 1984, the Board reopened the record and remanded the proceeding to, me "for the limited purpose of receiving newly. discovered and/or previously unavailable evi- dence with respect to the issues raised by Respondent's motion and reconsidering his credibility resolution in light thereof." _ Pursuant to the foregoing authority , a supplemental hearing was - held before me in Atlanta , Georgia, on March 19 , 1984. Documentary evidence was proffered, but no witnesses were presented , and all parties submit- ted briefs. My rulings, findings, and conclusions herein are based on the entire record. SCA SERVICES OF GEORGIA FINDINGS OF FACT 1. PROCEDURAL ISSUES A. Evidence on Crimes Committed by Pierce Jones Jr. and Johny Rudd Respondent moved to introduce a true copy. of an in- dictment of the Grand Jury in and for the Northern Dis- trict of Georgia, dated March 16, 1982, charging, inter alia, that Pierce Jones Jr. and Johnny Rudd conspired with other persons to withhold ^ information,- make false statements, and furnish misrepresented information in order to obtain explosives. Further, the indictments charge, Jones and Rudd made and received firearms, transported these materials in interstate commerce, and with them damaged or de- stroyed Respondent's property. Various overt acts in fur- therance of these objectives are charged in the indict- ment. Respondent also moved to introduce true copies of two, verdicts from the United States District Court for the Northern District of Georgia, dated December 7, 1982, finding Jones and-Rudd guilty of the foregoing of- fenses. The parties stipulated that these offenses are pun- ishable by imprisonment in excess of 1 year. The General Counsel expressed no opposition to Re- spondent's motion. The Charging Party, however, op- posed it on the ground that Jones and Rudd were con- victed subsequent to the hearing before me, and, there- fore, that the convictions could not possibly. constitute "newly discovered or previously unavailable evidence',' under applicable law.- The Charging Party. cited NLRB v. Jacob E. Decker & Sons, 569, F.2d 357 (5th Cir. 1978), enfd. as modified 228 NLRB 70 (1976),' wherein' the court affirmed, that,. "unless evidence asserted to be im- peaching was available at the time of the hearing before the ALJ, it cannot later be termed `newly discovered,"' and further stated: Since neither [of the alleged discriminatees] had been convicted at the time of the hearing, their latter convictions could not be newly discovered evidence and the Board did not abuse its discretion in refus= iiig to reopen the record to admit these 'subsequent matters [569 F.2d 357, 364 (5th Cir. 1978).] Respondent replied that the Board's Order of remand was "clear," and that I had "no discretion" to reject the proffered exhibits: I accepted this argument, stating, that it would be an exercise in futility for me to 'rejeci the documents specified in the Board's Order. The Charging Party also objected on the ground that the guilty verdicts were not final, "since appeals -had been filed. I rejected this'argument.2 Accordingly, I-'received the evidence of the indictments3 ; and convictions" of .i , I furnished copies of the court 's decision to the parries, in order to facilitate a meaningful supplemental hearing 2 See -Rule 609(e), Federal Rules of Evidence for United States Courts and Magistrates 3 The parties tacitly agreed that, although indictments are not normally admissible for purposes of impeachment, in this case they were necessary in-order to give meaning to the simple statements of "Guilty" in the'ver- dicts (R Exhs S-1-S-3) - , 863 Jones and Rudd, pursuant to Federal Rule 609(a)4 and the Board's Order. - ' B. Evidence of Crimes Committed by Charles W. Langello 1. The evidence and positions of the parties The Charging Party submitted a- true copy of an, in- dictment by the Grand Jury for- the United States Dis- trict Court for the, Northern District of Georgia, dated May 29, 1980, charging Charles W. Langello5 and others, including SCA Services of Georgia, Inc., with various' violations of 'the Sherman Act. The Charging Party also submitted true copies of the court's judgments in the cases of Langello and SCA Services, dated Janu- ary 17, 1983, based on pleas of nolo contendere. •In each - case the judgment reads as follows: -Defendant has been convicted as charged of the offense(s) of continuing combination and conspiracy in, unreasonable restraint 'of interstate trade and commerce; continuing agreements, understanding and concert of action to divide, allocate and appor- tion customers for' w'aste' disposal'service among.the .defendant and co-conspirator corporations and raise, fix, maintain, and stablize the prices of waste dispos- al service in the Atlanta area. in violation of Section 1 of the Sherman-Act [C.P. Exh. S-3].6 The General Counsel ' supported the Charging Party's motion, and Respondent :opposed- it. I reserved ruling on the motion. The Charging- Party argues - that. a fair reading of the Board's ".`Order of :Remand" requires admission- of evi- dence .of crimes -committed by Langello,* inasmuch as such evidence has been admitted: with respect to 'Jones and Rudd. -The Board's 'Order requires me to reconsider my credibility' resolutions-in light of newly discovered or previoiisl ° unavailable evidence. As Charging--Party's counsel'-puts- it,'"You'-can't review Jones' and Rudd's credibility in a'vacuum You've got to look'at what the otli r side was saying, - too." Further according -to the 'Charging Party, "Once you admit the Company evi- dence of tconviciioiis' occurring after the ALJ hearing and decision in contradiction of Decker & Sons, there is absolutely no reason not to admit the Union evidence of convictions occurring,in,that-same time frame." J ,l -•*.Rule609(a)readsas_fol1ows•.,;iC_; .,. (a) General rule For the.purpose, of attacking the.. credibility of a witness, evidence that he has been convicted of a;cnme shall'be`ad- "mitted'if-elicited from' him or' istablished-by public'recoid during `cross-examination but`-only if the cnme•( I)'was: punishable ;by death orltmpnsonment in excess of one year underrthe law;under which he was convicted, and,-the court;determmes that the probative value of admitting this evidence outweighs it's prejudicial `effect to thedefend- ant, or (2)' involved dishonesty dr false'staiemenf lregardless of the -punishment. • i. -S Langello had-been Respondent's vice president and-general manager 6 Respondent and the Charging Party agree in their briefs that a viola- tion of Sec I of the Sherman Anti-Trust Act is punishable by imprison- ment in excess of 1 year (15 U.S C § 1). See Fed Rule, Evid 609(a), supra, fn 4 - 7 . 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Charging Party contends that the evidence of Langello's conviction of violation of the Sherman Act satisfies not only the procedural requirement for admis- sion that it be punishable by death or imprisonment in excess of 1 year, but also the alternative requirement that it involve dishonesty or false statement (Fed. Rule Evid. 609(a)(1),(2))• Respondent opposed introduction of the Charging Party's evidence for a number of reasons. First, counsel argues that the Charging Party is "barred" from intro- ducing any evidence because it did not join in Respond- ent's motion to reopen the record. Counsel points to the inadmissibility of pleas of nolo contendere set forth in Federal Rule 410, and argues that this extends to convic- tions based on such pleas. Respondent notes the require- ment in Federal Rule 609(a)(1) that the trier of the facts must determine that the probative effect of admitting the evidence outweighs its prejudicial effect to the defend- ant, and argues that such a balancing test mandates ex- clusion of the evidence pertaining to Langello. Respond- ent contends that the Charging Party's evidence has no -reasonable relationship to the unfair labor practice, and states that the Board has used this as a reason to exclude evidence, citing Ludwig Fish & Produce Co., 233 NLRB 571 (1977), and Jacob E. Decker & Sons, 223 NLRB 70 (1976). Finally, Respondent argues that evidence of the conviction of SCA Services of Georgia, Inc., is inadmis- sible, since it is impossible to test the credibility of an entity which is not a natural person. 2. Legal analysis and conclusions Most of Respondent's arguments are unpersuasive. The contention that the Charging Party is "barred" from in- troducing evidence is patently without merit, as is evi- dent from the plain meaning of the remand Order. The Order directs me to receive evidence with respect to the issues raised by -Respondent's motion, and to reconsider my credibility resolutions. There is nothing in the Order limiting such evidence to that presented by Respondent. As shown by my original decision, there were numerous conversations between Langello and Jones with conflict- ing evidence as to what was said. Therefore, one of the issues raised by Respondent's motion, if not the principal issue, is whether Jones or Langello was telling the truth. The Charging Party's position, that a trier of the facts cannot make a credibility resolution between the con- flicting testimonies of two witnesses by assessing the trustworthiness of only one of them, is irrefutable. Respondent's contention that evidence of the convic- tion of Langello is inadmissible because it was based on a plea, of nolo contendere is also without merit. Federal Rule of Evidence 410 bars evidence of pleas, not -evi- dence of convictions. Respondent's position has been ex- haustively and definitively considered by the Court of Appeals -for the Fifth Circuit, and has been rejected. U.S. v.- Williams, 642 F.2d 136 (5th Cir. 1981). After pointing out that Rule 609(a) does not distinguish between con- victions resulting ' from a guilty plea and those resulting from a plea of nolo contendere, and after detailing the legislative history which shows that no such distinction was intended, the court stated: Admitting a nolo conviction under Rule 609 is well founded. A judgment entered on a plea of nolo contendere adjudicates guilt with the same finality and force as a judgment entered pursuant to a guilty plea or a conviction following trial. It is well settled that a plea of nolo contendere admits "every essential element of the offense [that is] well pleaded in the charge [citation of authorities omitted]." [642 F.2d at 138.] - After discussion of the differences between criminal pleas and convictions, the court added, "Clearly the rule governing our issue, Fed. R. Evid. 609, creates no differ- ence between convictions according to the pleas that preceded them." Id., p. 139.7 With respect to Respondent's next argument, that the prejudicial effect upon Respondent of the admission of Langello's conviction outweighs the probative effect of such admission, I conclude, on the contrary, that the probative value outweighs the prejudicial effect upon Respondent. The probative value is created by the neces- sity of assessing -the trustworthiness of both witnesses to contested conversations, particularly, as here, where evi- dence of the conviction of one of the witnesses has been admitted. ' Moreover, it should be noted that the balancing test required by subsection (1) of Federal Rule 609( a) is not required by subsection (2). Where admission of a convic- tion is allowable because it involves dishonesty or false statement, there need be no consideration of the prejudi- cial effect upon the defendant. I conclude that the ac- tions upon which Langello's conviction of a violation of the Sherman Act were predicated involved "dishonesty or false statement" within the meaning of Federal Rule of Evidence 609(a)(2). Accordingly, I need not consider the prejudicial' effect upon Respondent of admission into evidence of Langello's conviction. Respondent's argument that evidence of Langello's conviction should be excluded because it is "unrelated to the unfair labor practice" is contrary to the plain lan- guage of Federal Rule 609(a), which has no such require- ment. - The Company's reliance on Jacob. E. Decker & 'Sons, supra, to support this reasoning, is not well grounded. The Board's Order in Decker refers to an employee con- victed of a narcotics offense (223 NLRB 70 fn. 2); the decision of the court of appeals shows that his name was Dominguez, and that his conviction became final subse- quent to issuance of the administrative, law judge's deci- sion (supra, 569 F.2d 357). The Company asked the Board to reopen the record, and the. Board refused for the following reasons: We have considered the nature of the indictment and the alleged conviction' and the prison sentence resulting therefrom and conclude that such matters would not bear upon the credibility of this witness ° The court discusses the difference between a plea to a criminal charge and a conviction thereof and the differences in the stated policies of Fed Rules Evid. 410 and 609 See also US Y Vaslhos, 598 F 2d 387 (5th Cir. 1979) . SCA SERVICES OF GEORGIA 865 or the ultimate findings as to the unfair labor prac- tices. It is our belief that the reopening of the record herein and the reconsideration of the credi- bility resolutions by the Administrative Law Judge, based on a subsequent conviction of the credited discriminatee for a matter entirely unrelated to the alleged 'reasons for the discharge, would lead, in the circumstances herein, to an unwarranted prolonga- tion of the administrative process. We do not inter- pret 609(a) and (b) of the new Federal Rule of Evi- dence . . . as requiring such a procedure. [223 NLRB 70 fn. 2]. Although there is language in this footnote about the relationship of the offense to the unfair labor practice, it is secondary to the Board's central thesis, to wit, that the offense did not bear on the credibility of the witness, and that the administrative process would be unduly pro- longed. The court of appeals "read the Board's opinion as resting on the proposition that the Board could ex- clude all convictions for any crimes other than those in- volving dishonesty or false statement .. ." and reversed the Board on this point (569 F.2d 364). This is slim au- thority for exclusion of Langello's conviction of viola- tion of the Sherman Act. _ Even more inapposite is Respondent's reliance on Ludwig Fish & Produce, supra. In that case the company attempted to reopen the record because one of the wit- nesses had been convicted'of public "intoxication, trepass, and being without a driver's license. The Board denied the' motion "because Respondent has failed to show that the alleged convictions would be admissible under Rule 609(a) as involving either crimes punishable by death or imprisonment in excess of 1 year, or dishonesty or false statement." 233 NLRB 571 fn. 2. This has nothing to do with the relationship of the offense to the unfair labor practice. The Board also considered the Company's argument that the evidence should, be received as bearing on the alleged discriminatee's right to reinstatement. In re- sponse, the Board pointed out that, unlike another em- ployee's theft from the employer, the alleged discrimina- tee's offense did not relate to his employment relation- ship. The Board's language pertains to the Company's re- instatement argument, not to its attack on the discrimina- tee's credibility, and Respondent 's reliance on it is mis- placed. The conclusive reason for receiving evidence of Lan- gello's conviction of violation of the Sherman Act lies in the-fact that evidence of convictions of Jones and Rudd for other crimes has been received, and the credibility of Langello and.Jones in contested conversations is in issue. Were I deciding these matters de novo, I would ex- clude evidence of all the convictions, because they all took place after the hearing, ' and, therefore, constituted neither "newly discovered" 'nor "'previously unavailable" evidence. However, the case'does not come-to me in this posture. The admission of the evidence of Jones' and Rudd's convictions being an established fact, and the Board having directed me to reconsider my credibility resolutions, exclusion of evidence of Langello's convic- tion would be inequitable. Accordingly, I receive in evi- dence the true copy of Langello's conviction of a viola- tion of the Sherman Act. Langello and SCA Services of Georgia, Inc. are both indicted in the same document. The evidence of Langel- lo's conviction shows on its face the nature of the of- fense (unlike the conviction of Jones), and for this reason I would be predisposed to exclude the indictment. How- ever, Respondent in its supplemental brief contends that the indictment gives weight to its argument that "changed conditions" made inappropriate any continu- ation of its December 1979 offer to the Union. Under these circumstances, I am compelled to receive the evi- dence of indictment of SCA Services of Georgia, Inc. (and, necessarily, of Langello) if only to observe that the indictment is dated May 29, 1980. (C.P. Exh. S-3). Therefore, it could not have been a "changed condition" as of April 11, .1980, the date of Langello's letter to Jones making this assertion (R. Exh. 8). II. RECONSIDERATION OF CREDIBILITY RESOLUTIONS The decision of the Court of Appeals for the Fifth Cir- cuit in NLRB v. Decker & Sons, supra, contains the fol- lowing language: The final test for evaluating whether a record should be reopened is whether the new evidence re- quires a different result. Here, Decker contends that because [the alleged discriminatees] must be discred- ited, there is no evidence to suppbrt the Board's finding that their discharge was a violation of the Act. That argument assumes that the convictions re- quired that [the alleged discnminatees] be disbe- lieved. That is not the result of evidence of convic- tions. The effect is not absolute. Even if the Board had considered the convictions, it, like any trier of the fact, could have chosen to believe the witnesses. Moreover, even if [one of the alleged discrimina- tees] were disbelieved, there was sufficient other evidence upon which to conclude that his discharge was the result of his activity on behalf of the union . .. [569 F.2d 357, 365 (1978)]. Respondent has not specified which of my credibility resolutions should be changed. Accordingly, I shall con- sider seriatim those involving Jones, Langello, and Rudd. A. The Early Bargaining Sessions I found that Respondent made a final offer on econom- ic matters in December 1979, including a wage offer of a 70-cent, 55-cent, and 40-cent wage increase,-the existing checkoff clause, a new provision for drive checkoff, and a retroactive pay increase provided that the Company's offer was accepted by December 15. These findings are supported, not only by Jones' testimony, but also by Langello's admissions on cross-examination, his other tes- timony, and documentary evidence.8 6 See the following'references to Langello's testimony in my previous decision See also R Exh 6 866 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD With respect to noneconomic matters, I concluded that' the important issue , is whether disputes over them survived to March and April 1980, and that the most sig- nificant question was whether Company collection of back dues was an issue . In finding that this was not an issue, I .,relied, not only upon Jones' testimony, but also on corroboration by Charles Wright, and contradictions and admissions by Langello.9 My reasons for concluding that there were no other noneconomic issues ' separating the parties in March and April 1980 are set forth in my decision (p. 15, 1. 31-39), and need not be repeated . They include- Langello's testi- mony that the parties had agreed upon some noneconom- ic matters. With reference to the question of a pension fund increase, my rejection of Langello's testimony that the Union turned down his asserted offer of an increase is based; not only - on Jones' contrary testimony , but also on the fact that the -alleged offer was greater than any- thing the Union demanded , as established by documenta- ry evidence. 10 . The fact that there -was no dispute over wage rates is established by Respondent's, letter of April 11, acknowl- edging that the Union had agreed to,accept the Compa- ny's final offer . The assertion in this letter that the offer was contingent on acceptance by December 15 is clearly false, since Langello's own testimony- establishes that the deadline applied only to the offer of retroactivity of the wage increase. With respect to retroactivity of the wage increase, my reason for finding that it was not an issue by April is based, not only on -Jones' testimony, but also on the fact that Langello stated on cross-examination that the real issue was "back dues checkoff." Although Langello testi- fied that , Jones was - still demanding, wage retroactivity during , the April `-9 meeting, he further gave the pension fund, question as the only, issue barring agreement during the April 28 meeting-thus implicitly excluding the wage retroactivity issue. In sum, Langello shifted . from one reason to another as. the `• `real"- reason that the' parties did not reach agreement. - The final issue, as Jones asserted and Langello denied, is whether_-the negotiations broke-down over Larig_ello's refusal to sign 'a contract with a checkoff- clause, after having agreed to do so in December. My- crediting of Jones on this issue is supported by the following 'objec- tive considerations : (1) the fact that Langello terminated checkoff on January 31, 1980, despite Jones' protest that this was illegal (R. Exh. 2), thus demonstrating the strength of the Company's ,concern over this issue; (2) the detailed nature bf Jones ' testimony concerning his conversation in March, with -Langello, when he accused See the following references&iii' my previous decision p .8, LL - 19- 23, p 9, LL 5=14, 22-23,-,42-46,yp',IO, LL ;1-3, 12;15. t. t , io See p15,,LL 40-45,-p. 16,,LL.1,7,_ the latter' of trying to "bust the union". by insisting on a contract without a checkoff clause, and his conversation with Langello in April , as compared to Langello 's simple denial that he ever said he would- not sign a contract with a checkoff clause; (3) the fact that Jones ' testimony concerning Langello's statement about signing a contract in Florida without a checkoff clause is partially corrobo- rated by Langello's testimony that he had negotiated two contracts in Florida; and (4) the contradictory and shift- ing nature of Langello's testimony as- compared to Jones'. The fact that it was the Company's refusal to sign a contract with a checkoff clause which caused the negoti- ations to break down-and not payment of retroactive wages or any other issue-is clearly set forth in the evi- dence of the July 1 bargaining session . That evidence in- cludes testimonies from Wright , Lane,- and Hill, as well as Jones. Indeed, based on Wright's testimony that Lan- gello did not "seem accepted" to Jones" suggestion that he would try to get the employees to accept a contract without a checkoff clause , I concluded that 'Langello simply refused to sign a contract on any terms, even those resolving all outstanding issues between the parties. I reaffirm that finding. For these reasons, Jones' conviction ' does not change my conclusion that he was testifying truthfully ,about the bargaining, and that Langello was falsifying. i i This con- clusion is reached without consideration of Langello's conviction of violation of the Sherman Act. However, if that matter is',considered, it merely reinforces my credi- bility resolutions. . , Rudd's testimony was merely corroborative , with • the exception of one instance where he asserted and Lan- gello denied that the latter asked him to come back to work. I reaffirm my finding that Rudd was telling the truth on this occasion , and note that this incident was merely one of several of Langello 's solicitations of strik- ers to return to work . With respect to the contested evi- dence of Langello's conversations with individuals other than Jones' or Rudd, his conviction of an offense involv- ing "dishonesty or false statement" only serves to but- tressi the credibility resolutions set forth in my, decision. Having reconsidered my credibility resolutions pursu- ant to. the Board's Order, I reaffirm, for the foregoing reasons, the resolutions set forth in my decision. - 11 Respondent in its supplemental brief again urges me to discredit Jones because of the writings on his hand, described in,pp 12-14 of my decision I reaffirm my reasons for rejecting this argument Further, Lan- gello. also' used handwritten notes during testimony, and was required to remove them. The only difference is that Langello's were written on paper, while Jones' were written on his hand I observed both witnesses, and -conclude that neither was surreptitious in his use of notes If any such clandestine quality was present , it is impossible -to distinguish be- - tween the witnesses