Bozzuto'S, Inc.

BOZZUTO'S, INC. Bozzuto's, Inc. and Teamsters Local Union 677, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 39-CA-1517 6 December 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 12 March 1984 Administrative Law Judge George F. Mclnerny issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting, briefs,1 and both parties filed answering briefs. The National Labor Relations Board has delegat•' ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 as modified and to adopt the recom- mended Order as modified. i The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings a The judge found the following conduct of the Respondent violated Sec 8(a)(1) of the Act. telling three employees that they were on a com- pany official's "shit list" for not attending a meeting to discuss one of the Respondent's bargaining proposals, telling employees on 29 January 1983 they would be out of a job if they went on strike; massing hundreds of job applicants in sight of the employees shortly before a strike; videotap- ing pickets, and making numerous statements to employees disparaging the Union and promising to seek the return of pension fund contributions. We make the following dispositions on these findings. By telling employees they were on a manager's "shit list," the Re- spondent threatened reprisal for failing to attend a voluntary meeting to discuss contract negotiations. A threat of reprisal for not attending a vol- untary meeting concerning contract proposals is coercive within the meaning of Sec 8(a)(1) The Respondent's statement that employees would be out of a job if they went on strike threatened potential unfair labor practice strikers with loss of employment. An employer may not permanently replace, or threaten permanent replacement of, unfair labor practice strikers. Having found the Respondent's statement that employees (who are unfair labor practice strikers) would be out of a job if they struck violat- ed Sec 8(a)(1), we find it unnecessary to pass on whether the massing of applicants in view of employees constituted coercion. We reverse the judge's conclusion that the Respondent's videotaping pickets violated Sec 8(a)(1). Strikes in the recent past by the Union in- volved violence directed at the Respondent's property and working em- ployees In this circumstance, the Respondent had reason to anticipate picket line problems and, accordingly, had a legitimate reason for taping pickets We conclude in the circumstances of this case that the other remarks the judge found violated Sec 8(a)(1) were statements of opinion and they were noncoercive in nature Accordingly, the statements do not singly or collectively constitute unfair labor practices 977 The Respondent and the Union were parties to a collective-bargaining agreement that expired 31 January 1983. The parties began bargaining on a new contract in December 1982. The Respondent initially proposed, among other things, changing the recognition clause to eliminate employees working less than 32 hours a week. The Respond- ent's final offer still included changing the recogni- tion clause. When it presented the final proposal on 25 January 1983, the Company told the Union that they were at an impasse and that after the contract expired any employee who wanted to work would do so under these terms or not at all. On 1 Febru- ary 1983 the Union went on strike. Unit scope is not a mandatory bargaining sub- ject, and consequently a party may riot insist to im- passe on alteration of the unit. Douds v. Longshore- men, 241 F.2d 278 (2d Cir. 1957). Although the Union initially discussed the recognition clause, it subsequently made clear that it would not change the unit and would not recommend to its members a package containing such a change. The Respond- ent could not insist on acceptance of the proposed change in the bargaining unit's scope as a condition for a new collective-bargaining agreement after the Union's refusal to bargain about the nonmandatory subject. Laredo Packing Co., 254 NLRB 1, 19 (1981).4 Thus, the Respondent's final offer includ- ing the changed recognition clause violated Section 8(a)(5).5 One of the reasons the employees went on strike was the Respondent's insistence to impasse on the inclusion of this nonmandatory subject. Ac- cordingly, the ensuing strike was an unfair labor practice strike. REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. Specifically, we shall order that, on request, the Respondent meet and bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment. Although we customarily direct an employer to restore the status 4 The Respondent argues that in Good GMC, Inc, 267 NLRB 583 (1983), the Board found an employer may include nonmandatory subjects as part of a package proposal and bargain to impasse over that package In Good GMC, however, the Board found the parties had not exhausted their bargaining efforts and had not reached impasse In the present case, the Respondent claimed impasse had been reached, and its final offer in- cluded a change in a nonmandatory subject the Union earlier had indicat- ed it never would change Accordingly, we conclude that Good GMC is not controlling. 5 We find it unnecessary to pass on the judge's findings that the Re- spondent by making totally unacceptable proposals violated Sec. 8(a)(5) and that the totality of the Respondent's conduct violated Sec 8(a)(5) 277 NLRB No. 100 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quo when it has taken unilateral action in bypassing the collective-bargaining agent to the detriment of the employees, here it is not clear whether the Re- spondent's unilateral changes have been to the det- riment of the employees. We shall order restoration conditioned on the Union's request. Kura-Vent Corp., 257 NLRB 430, 433 (1981). If the Union elects to have previous conditions restored, calculations of the sums and payments necessary to make employees whole, with interest, shall be computed in accordance with normal Board policy. See Ogle Protection Service, 183 NLRB 682 (1970); Florida Steel Corp., 231 NLRB 651 (1977). AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 3. "3. By threatening its employees, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." 2. Insert the following as Conclusions of Law 4 and 5 and renumber the subsequent paragraph. "4. By insisting to impasse on a change in the bargaining unit's scope as a condition for a new collective-bargaining agreement and instituting hot lunch and hotline programs without notice to the Union, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. "5. By unilaterally imposing on its employees wages and other conditions of employment, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Bozzuto's, Inc., Chesh- ire, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with Team- sters Local Union 677, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America by insisting to impasse on a change in the bargaining unit's scope as a condition for a new collective-bargaining agreement, and in- stituting hot lunch and hotline programs without notice to the Union. (b) Unilaterally imposing on its employees wages and other conditions of employment. (c) Threatening its employees with disciplinary action if they did not attend certain meetings. (d) Threatening its employees with replacement. (e) 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) On request, meet and confer with the Union at reasonable times and places with respect to wages, hours, and other terms and conditions of employment. (b) On the Union's request, rescind any or all unilateral changes made on or after 1 February 1983, and make its employees whole, with interest, as set forth in the remedy section of this Decision and Order. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze any amounts due under the terms of this Order. (d) Post at its Cheshire, Connecticut location copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the of- ficer in charge for Subregion 39, 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. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the officer in charge in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. s If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain with Teamsters Local Union 677, a/w International BOZZUTO'S, INC. Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America by insisting to im- passe on a change in the bargaining unit's scope as a condition for a new collective-bargaining agree- ment. WE WILL NOT unilaterally impose on you wages and other conditions of employment. WE WILL NOT threaten you with disciplinary action if you do not attend certain meetings. WE WILL NOT threaten you with replacement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, meet and confer with the Union at reasonable times and places with respect to wages, hours, and other terms and conditions of employment. WE WILL, on the Union's request, rescind any or all unilateral changes made on or after 1 February 1983, and make you whole for any losses you suf- fered, plus interest. BOZZUTO'S, INC. Mary Davidson, Esq., for the General Counsel. Anthony J. Fazzone, Esq. (Fazzone, Muzzo & Bailee, P.C), of Cheshire, Connecticut, for the Respondent. Norman Zolot, Esq., of Hamden, Connecticut, for the Charging Party. DECISION STATEMENT OF THE CASE GEORGE F. MCINERNY, Administrative Law Judge. Based on a charge filed on January 27, 1983, by Team- sters Local Union 677, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), which charge was amended on March 10, 1983, the officer in charge of Subregion 39 of the National Labor Relations Board issued a complaint on March 16, 1983, alleging that Bozzuto's, Inc. (the Re- spondent or the Company) had committed and was con- tinuing to commit unfair labor practices in violation of the provisions of Section 8(a)(1), (3), and (5) of the Na- tional Labor Relations Act, 29 U.S.C. § 151 et seq. The Respondent subsequently filed an answer in which it denied the commission of any unfair labor practices. The complaint was amended and further amended on March 16 and July 7, 1983. The Respondent has denied the commission of additional unfair labor practices alleged in these amendments. Pursuant to notice contained in the amended com- plaints, a hearing was held before me at Hartford, Con- necticut, on July 11 through 15 and on August 8, 1983, at which all parties were represented by counsel and had the opportunity to present testimony and documentary evidence, to examine and cross-examine witnesses, and to argue orally. After the hearing closed, the General 979 Counsel and the Respondent submitted briefs, which have been carefully considered. Based on the entire record, including specifically my observations of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The Respondent, Bozzuto's, Inc., is a Connecticut cor- poration having its offices and principal place of business in Cheshire, Connecticut, where it is engaged in the wholesale and distribution of groceries and related prod- ucts. In the 12-month period ending February 28, 1983, the Respondent, in the course and conduct of its business operations, purchased and received at its Cheshire facili- ty goods, products, and materials valued in excess of $50,000 directly from points outside the State of Con- necticut. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Company and the Union have been dealing with each other concerning the Company's employees since 1963. The last collective-bargaining agreement ran from 1980 to January 31, 1983. In 1976, as the result of a Board-conducted election, a group of maintenance me- chanics was added to the bargaining unit of drivers and warehousemen. On the Union side, Perley Rossignol has been the Union's president and business representative since 1969 and George Lamontagne has been recording secretary and the business representative with responsi- bility for servicing Bozzuto's employees in the bargain- ing unit since 1977. For the Company, negotiations had been handled up to 1982 by its president and chairman Adam Bozzuto. For the negotiations which were to commence late in 1982 Adam's son, Michael Bozzuto, was given the responsibility of principal spokesman, aided by Marty Carangelo, director of warehousing and transportation. The events which make up the factual material of this case occurred in the period of December 1982 through February 1983. B. The Negotiations The first negotiation session was held on December 6, 1982, at which time George Lamontagne presented the Company's negotiators Michael Bozzuto and Marty Car- angelo with a set of proposals for the new contract. These included a revision of the recognition clause to ex- 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clude persons who worked less than 20 hours a week;1 additional vacation time and holidays; increases in wages, premiums, and allowances ; an addition to the insurance and dental plan; increased company contributions to the Union's pension plan; and miscellaneous minor items. This meeting was short, consisting merely of the pres- entation by Lamontagne of the Union's proposals with a short explanation. Following this abbreviated meeting, according to Mi- chael Bozzuto, he prepared, on his own and with no as- sistance from anyone else, a set of counterproposals. He did show these to his father for approval, then presented them to the Union at their next meeting. These proposals included the following major revi- sions in the existing contract: The recognition clause would be amended to eliminate those who worked less than 32 hours a week; the entire union-security clause, including the union shop and dues checkoff, would be eliminated; the contractual workweek would be amended to change the Monday beginning of the workweek to a flexible beginning on any day an employee was sched- uled by management to start his week; two contractual holidays would be exchanged for two personal days; pro- visions for wages for part-timers and restrictions on the use of part-timers to eliminate overtime work for full- time employees would be deleted, along with a cost-of- living provision; and the Union's pension plan would be replaced by a company profit-sharing plan. As with the Union's proposals, there were several minor provisions. In considering the issues in this case I have examined the proposals advanced by the Union and the Company and considered, as well, the background and experience of those who conceived and prepared these documents. The Union's proposals were formulated by Lamontagne after consultation with representatives of the employees. Lamontagne himself had at least 5 years' experience dealing with the Company, its collective-bargaining con- tracts, and problems arising under those contracts. The proposals themselves seem to be standard fare, encom- passing a number of benefits but not exceptional or ou- tregeous for initial proposals. The Company's proposals were prepared ostensibly by a very young man who, while intelligent and well spoken, admittedly had no experience in the preparation, negotiation, or implementation of collective-bargaining contracts. The proposals themselves, however, reflect a complexity of structure which could eliminate first the Union and eventually the bargaining unit itself. By this rather sweeping statement I am referring to the proposal to eliminate the union shop and the check off of union dues, which would tend to eliminate the Union, and the combination of the proposed elimination of part-time workers who work less than 32 hours a week from the bargaining unit when this provision is read together with the change in the beginning of the workweek m article V and the elimination of restrictions in article VIII on the use of part-time employees . These latter proposals, as was quickly recognized by the Union, would enable the Company to use part-timers in order to dismantle the whole bargaining unit. All of this indicates to me that there was a wide gap between the depth and sophistication of these company proposals and the experience and ability of Michael Boz- zuto, who swore that he had formulated the proposals all by himself. This view was reinforced by Bozzuto's testi- mony concerning these issues. He stated that he pro- posed the elimination of the union shop because of nu- merous complaints by employees who wanted a "choice." When pressed he could recall these complaints only in vague, general terms and could remember only one employee by name who may have conveyed such a complaint to him. As to the discontinuance of-the check- off, Bozzuto said that he did not want to do the Union's bookkeeping, but had no data on costs or even whether the inclusion of union dues checkoff required an addi- tional cost to the Company at all.2 On the use of part- timers, likewise, Bozzuto's testimony is phrased in gener- al terms, but there is no indication that there were any studies done, or analysis made, on the subject of whether part-timers could be used to replace full-time employees, what savings could be achieved if this were done, or the short-range or long-range impact on the Company 's situ- ation of such a shift. Indeed, Lamontagne and Rossignol testified, and Bozzuto agreed, that the latter said to them that he did not, in any event, intend to replace full-timers with part-timers.3 Beyond this perceived gap between the scope of these proposals and the capacity of their purported author as demonstrated by his testimony recounted above, Bozzu- to's demeanor did not inspire me with confidence in his grasp of the issues in this case, his memory, or his veraci- ty. I observed him very closely while he testified, and beyond a flippancy toward the proceeding, and an arro- gance toward opposing counsel, I noted his discomfort when pressed for details and a flexible memory which re- sponded well on direct examination and dismally on cross-examination. In conclusion, I have serious doubts about the credibil- ity of Michael Bozzuto's testimony on substantive issues in this case. At this point, in particular, I do not believe his assertions that he alone prepared the Company's pro- posals dated December 10, 1982. Beyond this, I will make additional credibility determinations as the occa- sion arises, but I will not generally credit Michael Boz- zuto on substantive issues. Up to now I have intentionally omitted discussing the pension plan versus profit-sharing issue. The reason is not that this issue was not a part of the overall negotia- tion process, or that it was not a critical issue in the eventual breakdown in this process, but rather that it is a 1 There was a lot of confused and inconsistent testimony concerning this part of the Union's proposal. I do not agree with the Union's position that the proposal was a typographical error because it merely reflected language already existing in art VIIIU) of the contract, but I do not feel that the inconsistency in the Union's position is significant in view of the Company's response to this proposal and the effect of that response on the subsequent course of negotiations 2 This lack of precision contrasts with Bozzuto's careful computations in his notes on the costs of the Union's proposals, a This would indicate that these were diversionary, makeweight, or even frivolous proposals which might be understandable at the beginning of negotiations, but there was no explanation as to why the Company held fast to them even after impasse and the strike in February 1983 BOZZUTO'S, INC. different kind of an issue, with different causes, charac- teristics, and dimensions. For example, the actuarial problems with a multiemployer pension fund, which is the kind involved here, are, despite the views of the General Counsel and the Union, real enough. I know from my own experience that employee pension fund protections contained in the Employee Retirement ]Income Security Act of 1974 (ERISA) are complex and difficult to understand. The evidence in this case shows that the Respondent's accountant Daniel Bartz was gravely concerned over the solvency of the New Eng- land Teamsters and Trucking Industry Pension Plan, the plan applicable here, as well as the impact on the Com- pany's financial situation of another law, the Multi-em- ployer Pension Plan Act of 1980. In the absence of evi- dence to the contrary I cannot say that Bartz' concern was unjustified, and I certainly cannot ascribe this con- cern to antiunion considerations. Bartz conveyed his con- cerns to Michael Bozzuto in a long memorandum dated July 7, 1982. Bozzuto accepted the concerns expressed by Bartz and advanced the problems of unfunded and contingent liability voiced by Bartz as his reasons to the Union and at the hearing why he did not want to agree to continuation of the union pension plan in the contract. Bozzuto also stated in his December 10 proposal that the Company would replace the pension plan with a compa- ny profit-sharing plan in which all employees could par- ticipate. So, not only did Bozzuto have an arguably valid reason for eliminating the pension plan, he also proposed another employee benefit in place of the pension plan. Both of these circumstances seem to me to set this pro- posal apart from the other company proposals which contained neither present logic nor future alternatives. The Company's proposals, contained in a document dated December 10, 1982, were presented to Lamon- tagne at a meeting either on that date or on December 15.4 Lamontagne looked over the proposals and immedi- ately recognized that there were serious problems there. He told Bozzuto and Carangelo that they were trying to get rid of the Union. They replied that they could work with or without the Union. I credit Lamontagne's ver- sion of this conversation, which, while not specifically applicable to the issue, does bespeak an attitude of which more will be heard later. At the next meeting, on December 20, Lamontagne was joined by Rossignol and the employee bargaining committee. There was considerable discussion on all pro- posals5 but agreement was reached on only three of the Company's minor proposals and two minor union pro- posals.6 On January 8, 1983, the Union held a meeting at which the membership voted by a large majority to reject the position of the Company at that time and au- thorized a strike. Further meetings between the parties 4 Bozzuto and Carangelo placed the meeting on December 10, Lamon- tagne on December 15 It is not necessary for me to resolve this issue, this date is not important to a resolution of the issues here. 5 Despite allegations by witnesses for both sides about absolute refusals to discuss issues, I do not find that such was the case Certainly both par- ties took firm positions, but there was no total or consistent refusal to talk 6 All dates from here on are in 1983 unless otherwise specified 981 were held on January 10, 19, and 20. By the end of this last meeting, as near as I can determine from Rossignol's testimony and some notes prepared by Bozzuto and tran- scribed by the Company's administrative assistant Pat Houle, the Union had withdrawn all of its proposals except those on hourly wages, holidays, personal days, and the pension fund. The Company, on the other hand, was still standing firm on wages and holidays and, in ad- dition, was still holding on the elimination of part-timers, abolition of union security, change in the beginning of the workweek, use of part-timers to do work normally done by full-time employees on overtime, 7 and substitu- tion of profit sharing for the pension plan. On January 25 the parties met with Federal and state mediators. The Company presented the Union what was described as a "final and last proposal." This proposal continued to hold on the exclusion of part-timers, elimi- nation of the union shop (although the checkoff would not be eliminated in its latest proposal), a change in the workweek beginning limiting its application to "new em- ployees or present employees who volunteer," a new offer on wages, a retreat from the Company's previous position on the use of part-timers on what would have been overtime work for regular employees. Finally, the Company stood firm on its offer of a profit-sharing plan in place of the Union's pension plan. This last proposal was to be guaranteed at $1000 per year for all those who earned over $14,000 a year and pro-rated amounts for those who earned less. Having presented this proposal, Bozzuto told Union Representatives Rossignol and Lamontagne that they were at an impasse, that after January 31 any employee who wanted to work at Bozzuto's was going to work under these terms or not at all, and that he had "hired 200 people to replace every employee." Rossignol re- plied to this by denying that they were at an impasse, and he urged that the employees be permitted to work under the old agreement while the Union and the Com- pany worked out their differences. There was an inconclusive meeting on January 26. Then, on January 29 the Union held a ratification meet- ing at which time the membership voted to accept the Company's profit-sharing proposal, abandoning the pen- sion plan, if the Company would move on the scope of the bargaining unit in article I, move on the union shop in article III, and give the 20 cents previously paid to the pension plan in the first year of a 3-year wage package. This was unacceptable to the Company, and at midnight on January 31 the contract expired. C. Incidents in January 1983 While negotiations were under way, there were sever- al incidents which are alleged by the General Counsel as independent violations of Section 8(a)(1) of the Act." 7 The Company had modified this, according to Bozuto's notes, by of- fering to agree that only 5 percent of the work force should be part time. This appears to contradict company assertions that it had no intention of replacing full-time with part-time employees 8 The General Counsel has also moved to conform the pleadings with the proof The record here show instances where there was no evidence Continued 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first of these incidents occurred shortly after the Union's membership meeting on January S . A short time after that, Robert Saunders, a truckdriver, was working in the Company's garage with several other employees. Michael ,Bozzuto joined the group and stated , according to Saunders, that the Union did not care about the mem- bers, but only about dues. Further, if the Company hired someone new the Union got an initiation fee of $450. Bozzuto denied that this conversation took place , but, as I have already noted, I have placed little reliance on his credibility . I do credit Saunders' version, which agrees with the testimony of Rossignol and others concerning Bozzuto's attitude toward the Union. Joseph Kruse, another driver, testified to an incident which occurred in mid-January in Carangelo 's office. Kruse was conversing with a security guard when Boz- zuto joined the conversation . Bozzuto started talking about the profit-sharing plan, then about the open shop. Buzzuto pointed to notices on a board in Carangelo's office concerning Teamsters problems in the midwest,9 and saidl that the Union would not fight for the employ- ees, all the Union wanted was the initiation money. He added that if he wanted to fire any of the employees the Union would not fight for the employees' jobs or any- thing. Here Bozzuto denied the last part of the conversa- tion, although he admitted that he had pointed out the notices about the Teamsters to Kruse . Kruse impressed me as a forthright and credible witness and I believe his version of this incident. Again, warehouseman Martin Cox testified that in mid-January he was in the warehouse with other em- ployees on their lunch break. Martin Carangelo came up and joined the conversation . Carangelo denied that he was in on the negotiations, and stated that he did not care if the employees had a union or not , but that Buz- zuto would take care of the employees . Carangelo denied this, but I credit Cox, who impressed me as honest, ar- ticulate, and candid . Carangelo's demeanor did not im- press me as truthful and his memory was very poor. Warehouseman John Schlander testified about a con- versation in Buzzuto's office a week or so before the end of January in which Bozzuto told him that a "closed" shop was like going into a used-car lot where the sales- man gave the customer a choice of only one car. Boz- zuto recalled this conversation, but not its substance. Carangelo, who was also present, said there was no men- tion of a closed or open shop in this conversation, thus contradicting Bozzuto. I credit Schlander in this in- stance. Schlander also testified about a conversation with Car- angelo after a profit-sharing meeting (of which more later) on January 28. In this conversation Carangelo told Schlander that he did not need a union if he came in and did his job every day, that nothing would change (at the on certain allegations in the complaint It also shows that there were in- stances where the complaint was amended during the course of the hear- ing. The briefs filed by the General Counsel and the Company show that both parties had a clear understanding of all of the issues in the case Thus, I grant the General Counsel's motion B Employees Petrucci, Battista, Boisvert, and Cox verified that news- paper articles concerning Teamsters misuse of employees money were posted in the warehouse before and after February 1, 1983 Company) with or without a union, and that everything would be the same. Carangelo did not deny this and I credit Schlander's testimony here. Michael Bates , a forklift operator, testified that on Jan- uary 31 he was approached by Carangelo, who told him that a lot of shops were going nonunion; that Michael Bozzuto represented new blood in the Company and the employees should give him a chance to work out the bugs; that things would go a lot smoother without a union; that they (the employees) should give the open shop a chance; and that people deserved the right to choose whether to join a union or not. Carangelo denied this conversation. Again I credit Bates, whom I found to be a credible witness. I find all these incidents to violate Section 8(a)(1) of the Act. Charles Carangelo (Marty's brother), Jeff Cogle, and John Romanauskas all testified that they were asked by their supervisor George Rothbugel to attend a profit- sharing meeting . They all declined to attend. Then, on January 29, Rothbugel told each of them that they were on Marty Carangelo's "shit list" for not attending the meeting. There is no indication that anything further came of this. However, I find that the incident was a violation of Section 8(a)(1) of the Act: D. Advertisements for Replacements Beyond the facts which I have found in the previous two sections of this decision, there are two further mat- ters to be considered. First, in mid-January, the Company placed advertise- ments in the help-wanted sections of several local news- papers, including papers in Waterbury, Hartford, and New Haven. The advertisements in the latter paper at least were the standard one column in width, but were 2 or 3 inches in length. The advertisements stated that there were openings for warehousemen, mechanics, and drivers. Whatever the reason, the widespread advertisements, the difficult economic times in early 1983, or the fact that a competitor had recently shut down, the response was overwhelming. Four to five hundred applicants showed up at the Company's warehouse on the days specified. According to the Company's personnel and se- curity director, Andrew O'Leary, it was necessary to direct the applicants to an area of the warehouse differ- ent from that ordinarily used to accept applications and interview candidates. Thus, this crowd of jobseekers were lined up in areas where they were visible to the Company's employees. i ° As it turned out, according to O'Leary, he hired only three warehouse employees. The Company's explanation for placing these adver- tisements, as voiced by Michael Bozzuto at the hearing, is that the Company was negotiating with a view to pur- chasing a small chain of stores called Pegnataro's, Inc. If Bozzuto's acquired Pegnataro's, a substantial number of warehousemen and drivers would be required. In addi- tion, a competitor of the Company's, Gaer Brothers, was 1° Much is made of this circumstance by the General Counsel, but it seems to me that the presence of this horde, at any place in or immediate- ly outside the warehouse, would have the same impact on employees. BOZZUTO'S, INC rumored, in early January, to be going out of business and the Company had picked up an account called Suss- man's. On January 11, Adam Buzzuto sent a memoran- dum to O'Leary and Carangelo outlining the Gear and Sussman situations as well as Pegnataro's, and asking them to discuss it with Michael and "do whatever is nec- essary." Despite the instruction in the memorandum O'Leary himself testified that he decided to place the ad- vertisements. I think it is true that negotiations with Pegnataro's were going on, and I believe that the circumstances out- lined in Adam Bozzuto's memorandum of January 11 were true. What I do not believe are the explanations of Michael Bozzuto and O'Leary that the newspaper adver- tisements, widespread and prominent as they were,11 were solely for the purposes stated by them. There is no indication in Adam Bozzuto's memorandum of how many employees were needed. O'Leary said that he de- termined, on his own, that 10 or 15 people were needed, and he went ahead and placed the advertisements. Mi- chael Bozzuto's testimony did not indicate that any spe- cific number of employees were needed, but did state clearly that he directed O'Leary to place the advertise- ments (specifying no telephone calls to guarantee that all responses would be in person at the warehouse). There was no testimony, other than that of O'Leary, that any study was made by the Company on how many employ- ees of each category would be-needed, nor were there searches of existing files to turn up applicants. In the light of the parlous economic conditions in early 1983, the Gaer situation, and the other business problems men- tioned by Adam Bozzuto, it is highly unlikely that there would not have been a number of live applications of qualified people in the Company's files. In any event, the scope of the need as envisioned by O'Leary would not have required the nature and extent of the advertise- ments actually placed. In these circumstances I find that the reasons proffered by Michael Bozzuto and O'Leary are false and that the real reasons for the advertisements were to build up a pool of prospective replacements for strikers, and also to show the current employees that a large number of re- placements were available. This whole incident constitut- ed coercion of employees in violation of Section 8(a)(1) of the Act. E. The Profit-Sharing Meetings The second matter is the series of meetings held by the Company with its employees on January 27 and 28. During the negotiations, Michael Bozzuto told the Union that he wanted to explain personally to his em- ployees the merits of the Company's profit-sharing plan. Rossignol and Lamontagne opposed this, but eventually agreed that they would not object if the Company held a single meeting, held at a time when all employees could attend, confined solely to a discussion of the profit-shar- ing plan. Bozzuto disagreed, feeling that he could explain the profit-sharing issue better in a series of smaller meet- 11 I consider a help-wanted advertisement 2 inches or more in length as prominent, and I consider advertisements in newspapers in Hartford, New Haven, and Waterbury as widespread 983 ings. As it turned out the parties did not come to any agreement, and the Company went ahead and scheduled meetings for seven or eight small groups of employees. In connection with these meetings the Company en- gaged the services of Edwin Ricker, a management con- sultant in labor relations whose company, PLRS (Per- sonnel Labor Relations Services), is based in Grand Blanc, Michigan. Ricker was called as a witness by the Company, and testified that he designs profit-sharing plans (although he did not design the one at Bozzuto's) and represents em- ployers in all stages of labor relations. He stated at one point that he was retained by the Company at the end of 1982 and the beginning of 1983 to be involved with "some retail stores that the warehouse was working with." Later, Ricker stated that he had been "working with Bozzuto on employee relations with stores all last year off and on." His explanation of the relations with the stores was the question of what employee relations programs should be implemented if the sale of the stores to Bozzuto's took place. This last affords some logical reason for Ricker's presence on the scene, but does not eliminate the inconsistency about when his involvement began. He did testify that he was asked "right after the first of the year [1983] to come in and explain the profit sharing plan to Bozzuto's employees." Ricker stated that in discussions at some time prior to the meetings, he and Michael Bozzuto agreed that they would approach the employees with a three-stage discussion, the first stage being an explanation of the profit-sharing plan (presum- ably by Ricker) and a comparison of that plan with the Teamsters pension plan; second, Michael was to explain the Company's offer; and, third, Michael and Ricker would answer employees' questions.12 Ricker did not appear to me to be a credible witness. I base this conclusion first on his demeanor, second on the inconsistency noted above on the time of his association with the Company, and third on his vagueness and lack of precision when asked on cross-examination by the General Counsel and counsel for the Union what he did and what the scope of his relations were with the Com- pany. I have also considered the circumstance that al- though both Michael Bozzuto and Ricker stated that Ricker was clearly identified both by name and function, only one of the half-dozen or so employees who testified about the meetings was able to remember Ricker's name. I found these employees, Petrucci, Battista, and Bates, to be intelligent, perceptive, and credible witnesses. The meetings were all held in the Company's confer- ence room with groups of between 8 and 35 employees. Summarizing the testimony of the employees named above, it is clear that the scheme outlined by Ricker was not followed; both Ricker and Michael Bozzuto talked about the profit-sharing plan and the Union's pension plan, and they both talked about the Company's proposal 12 As a result of this testimony by Ricker there is no doubt that he was acting as the Respondent's agent during the profit-sharing meetings on January 27 and 28. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with emphasis on the open shop. 13 Finally, both partici- pated in the question and answer period. Earl Tashereau quoted Michael Bozzuto as saying that the Union would treat the employees better if they had an open shop. Roland Landry said Michael said much the same thing. Samuel Boisvert testified that Michael told the employees that they did not need a Union as in the thirties, that the Company would take care of them now. Ricker said that the Company had 600 applicants, including 200 from another warehouse-there were trained employees ready to come in and take their jobs. Anthony Faryniarz said that Michael spoke about the profit-sharing and pension plans and said if the employ- ees were not satisfied with his offer he had 800 appli- cants who wanted their jobs. There would be an open shop after February 1 and he, Michael, would take care of the employees. Gary Petrucci testified that both Michael Bozzuto and the "stranger" (Ricker) talked about all matters. Michael said he could not live with the pension plan, that he was going to get a lwayer and fight to get the employees' contributions back from the Union. Michael also spoke about it being the eighties and it was time for a change. The Union would work harder for the employees if they had an open shop. Michael also stated that he wanted to bring nonunion part-timers in at 32 hours a week and not pay health and welfare contributions. John Battista quoted Michael as telling the employees it was the eight- ies and they did not need the Union any longer. Manage- ment and employees could work together and profit- sharing would be better for all. He said that he had a "bunch of applicants" and that some employees were going to cross the picket line. If employees were "out there" they would be out of a job. Michael Bates also mentioned that Michael Bozzuto spoke about all the Company proposals, and told the employees that if they did not work under his proposals they would not work at all. He also reiterated the statement that he would get the employees' contributions back from the pension fund no matter how long it took or what the costs were as a condition of the employees' acceptance of profit sharing. I find that these incidents constitute violations of Section 8(a)(1) of the Act. F. The Strike and its Aftermath As I have described, the union membership voted on January 29 to accept the Company's profit-sharing plan in place of the pension plan. This concession was not enough to move the Company to agreement or, indeed, to change its position at all, at a last minute meeting held on January 31. Lamontagne's testimony made it evident that the union leaders were aware during the month of January that the resolve of the membership was not strong. This problem apparently led Lamontagne and Rossignol to urge the Company to allow the employees to continue to work 13 Ricker's own testimony about the meetings reveals a somewhat dis- ingenuous preoccupation with the "advantages" to employees of an open shop Some of this philosophy appears in Michael Bozzuto's testimony concerning events which occurred before Ricker's alleged first contact with the negotiations here. under the old contract while the negotiations continued. Michael Bozzuto would not agree, insisting rather on im- posing the terms of his last offer on the employees on February 1. In a last effort to rally their flagging troops Rossignol and Lamontagne held a meeting in a commuter parking lot near the plant on the night of January 31 urging all the employees to support the coming strike. These ef- forts were unavailing, and only 50 or 60 out of 130 em- ployees in the unit actually began the strike on February 1.14 Despite the lack of unanimous support, the Union set up picket lines at the warehouse. Rossignol testified that during the first day or so, he observed a vehicle marked with a security guard company insignia and a jeep "Ren- egade" driven by Michael Bozzuto driving up and down the road where picketing was going on with persons inside using videotape cameras to make tapes of the pick- ets. At first there had been no violence, but on February 2 at 4 a.m. there was some shooting at a Bozzuto truck somewhere away from the picket line. A striking em- ployee, Angelo L. Ingalo, ,pleaded guilty to two counts of an indictment charging him with this shooting. There are no allegations of unlawful taping of strikers after the shooting incident, but I find that the taping began as soon as the picket lines were set up on February 1,1 s Robert Saunders testified that he had stayed out on February 1. Adam Bozzuto was angry, and said he had taken Saunders back two or three times (Saunders had quit and returned several times) and all he did was walk on a picket line. Adam then told Jim Christiano (appar- ently a supervisor) not to put Saunders on the "special list." Pat Houle testified that Adam was joking when he said this, but Saunders thought he was serious and angry, even though Saunders did not know what the "special list" meant. Concerning other picket line incidents, Jeff Cogle tes- tified that the grocery shipping manager, Serge Cheva- lier, came up to where Romanauskas, Charlie Carangelo, Taschereau, and Cogle were on the picket line on Febru- ary 3 and told them that they did not need a union in there. All the unions did was cost them money. Romanauska testified that Marty Carangelo came up to him on the picket line early in February and told him his job was "intact," and that Michael Bozzuto would take care of him. The strike lasted until February 22. There was a nego- tiation session on February 3 at which nothing of conse- quence occurred and on February 17 when the Union at- tempted to break the deadlock on the union shop period by offering an open period during which employees could resign their membership. The Company agreed in principle, but the parties could not agree on the duration of the open period. The Company also withdrew its in- 14 The question as to whether this was a strike, a lockout, or a con- structive discharge of the employees who participated will be discussed below 15 The Respondent's witnesses did not deny the taping but sought to justify the activity because of violence in a prior strike I cannot find that that has been established on this record and I find the taping on February 1 and early on February 2 to violate Sec 8(a)(1) of the Act BOZZUTO'S, INC. sistence on excluding part-timers at this meeting. There was no final agreement, and no meetings had been be- tween February 17 and the close of this hearing on August 8, 1983. After the February 17 meeting, the Union abandoned the strike and instructed the remaining strikers to return to work. All of those who asked for reinstatement were reinstated despite the threats I have reported which oc- curred at the profit-sharing, meetings. When some of the employees returned, they were wearing hats bearing the name and local number of the Union. Gerard Bellemare and Joe Kruse testified that Michael Bozzuto asked the employees why they were wearing the union hats. He then said he did not want trouble between people who were wearing those hats and others inside the warehouse who had hats with a different message written on them. He told the employees not to wear the union hats inside the warehouse. In fact they did wear the hats, and there was no trouble and no retaliation against any employees. Another hat incident was described by Jeff Cogle. He described a conversation between himself and John Ro- manauskas and Marty Carangelo around the beginning of March. The employees were wearing union hats and Marty said he liked them and asked how much they cost. They said the hats were free and Marty replied that it had cost them over $1000 to wear these hats. The General Counsel has aiged two additional viola- tions by the Respondent of its duty to bargain. There was considerable testimony about a "hot lunch" pro- gram. The facts according to Tashereau and Landry are that after the strike the employees received free lunches at first fairly often, later once a week, and then once a month. There was evidence that this had not been the practice before the strike, and there was no question that this new benefit was not a part of the Respondent's last offer and had not been discussed with the Union. Simi- larly, Landry and Boisvert testified that the Employer had instituted an employee "hot line" without consulta- tion with the Union. The Respondent itself introduced a memorandum from Michael Bozzuto to all employees in- troducing a new communications procedure by means of an oral or written "hot line." There is no question that there was no consultation with the Union over this new procedure.' 8 G. Analysis and Conclusions The central issue in this case is the question of wheth- er or not the Respondent refused to bargain in good faith in violation of Section 8(a)(5) of the Act. In examining this question it seems to me that there are three separate elements which must be explored. The first is whether the Company's proposals themselves were so totally un- acceptable that, as a matter of law, the action of the Re- spondent in placing them on the table is a violation of law. The second element is whether, if the original pro- posals were not unlawful, the Respondent's insistence on some of them to the point of impasse constitutes a viola- 16 Any other incident not reported in this review of the facts, includ- ing specifically allegations by Cox about Carangelo and writing on the mens' room wall, I do not consider to have been established by the Gen- eral Counsel 985 tion. The third element, which reflects back on the other two, is whether the totality of the Respondent's conduct shows that it had no real desire to reach an agreement, and that, even if the proposals, or the insistence on them, is not found violative, then the entire conduct of the Re- spondent shows that its actions were unlawful. In my view, all three elements have been proven in this case. Taking these elements in reverse order, it is clear to me that the totality of the Respondent's conduct shows that the original proposals were not designed or intended to form the basis for an agreement or serious negotiations except on the Respondent's own terms. The combination of the exclusion of the part-timers in article I, the abolition of the union shop and checkoff in article III, the elimination of guaranteed starting times in article V, and the elimination of the restriction against part- timers in article VIII appears to me to be fatal both to the Union as bargaining agent and to the bargaining unit as a viable entity. I must also add to this enumeration the issue of the pension fund. As I have indicated, I consider the ques- tion of the pension fund profit-sharing; issue to be some- what aside and apart from those other issues I have men- tioned here. Contributions to the pension fund were get- ting more expensive as shown by the Union's proposals. The alarm signals sent up by the Respondent's account- ant Bartz although perhaps overly dramatic, nonetheless reflected what I consider a serious and legitimate con- cern with real problems of unfunded and/or contingent liability. In addition, the evidence shows that the Union was entirely inflexible with respect to the pension fund. An undated directive from the fund mandated certain contribution and specific contract language which "must be included" for the plan to continue. It is difficult to view this issue as really one which ex- isted only between the parties but, rather, it appears as an issue imposed upon them by outside entities, similar to the Pay Board guidelines of the early seventies or per- haps a forerunner of other, further, outside impositions as the result of statutes, governmental regulations (or the removal of such regulations), or the imperatives of multi- employer or pattern bargaining. Difficult as it is to consider this issue along side the others, this is what must be done. Certainly the amount of evidence received on this issue indicates that the par- ties considered it central to their deliberations. It was im- portant enough to the Company to make it a part of its January 25 proposals and to guarantee payment of $1000 to each full-time employee, more than double the first year amount requested by the Union to fund the pension plan. Finally, I find it most significant that even after the acceptance of its profit-sharing proposal by the member- ship, the Respondent held on to its original proposals, which could reasonably be interpreted as leading to the elimination not only of full-time employees, but of all employees who might be eligible for profit-sharing con- tributions. Thus the profit-sharing plan might well have turned out to be an illusory or even a nonexistent benefit. Turning to the Respondent's conduct during the period of negotiations in January 198.3, during the time of the strike and afterwards, I can discern a thread or a 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pattern of conduct directed against the Union and its statutory function as bargaining representative. This is demonstrated by the series of incidents I have found in the prestrike period, e.g., constant statements such as those by Michael Bozzuto to Robert Saunders concern- ing the Union's disinterest in the employees, to Joseph Kruse that the Union would not fight for the employees, and to John Schlander about the Union as a shifty used- car salesman. In addition I have noted statements by Carangelo to Martin Cox and other employees that Mi- chael Bozzuto would take care of them, by Carangelo to Schlander that the employees did not need a union, and by Carangelo to Michael Bates that things would go a lot smoother without a union. These incidents may seem like pinpricks compared to the crude threats and blatant promises frequently en- countered in the field of labor- management reactions, but they do show a pattern of conduct disparaging the Union, and indicating that the employees' continued ad- herence to the Union was futile, Firmat Mfg. Corp., 255 NLRB 1213 (1981); Columbia Building Materials, 239 NLRB 1342 (1979). I find that these incidents constitute independent violations of the Act, and also give an indi- cation of the Respondent's attitude toward its duty to bargain in good faith with the Union. Continuing along the same thread, or pattern, I note the assembly of hundreds of jobseekers as the response to newspaper advertisements in the cities of Hartford, New Haven, and Waterbury also constitutes a violation of Section 8(a)(1) of the Act. This is not to say that an em- ployer may not advertise for replacement help when faced with a strike, but where the testimony is, by the Respondent's own witnesses, that only 10 employees were being sought, advertisements of this size and distri- bution, in the winter of 1983, could only have been de- signed to bring in a huge number of applicants. The fact that the applicants were assembled in a different place that is usually set aside for interviews emphasized their visibility to the employees. The use of this crowd of ap- plicants to threaten prospective strikers at the profit-shar- ing meeting removes any doubt that the whole operation, the advertisements, the assembly of the applicants, and the use of the incident to intimidate and coerce the em- ployees in a violation of Section 8(a)(1) of the Act, is an- other piece of the pattern of a refusal to bargain. Moreover, the statement to employees that they would be replaced if they failed to work on February 1 mistat- ed the law and tended to interfere with and coerce the employees in their right to strike, and constitute addi- tional violations of Section 8(a)(1). Dayton Food Fair Stores v. NLRB, 399 F.2d 153 (6th Cir. 1968). Along with the threats to replace the employees with the applicants, Michael Bozzuto continued at the profit- sharing meetings to dwell on the theme of a open shop, the fact that it was the eighties, not the thirties, and that employees did not need a Union because now the Com- pany would take care of them. He pledged to the em- ployees that he would hire a lawyer and recover all of the money that the Company had contributed to the pen- sion fund. All of these statements constituted violations of Section 8(a)(1) of the Act by disparaging the Union in the eyes of employees (General Athletic Products Co., 227 NLRB 1565 (1977)) and by promising the employees benefits if they abandoned their support of the Union (Pine Valley Meats, 255 NLRB 402 (1981)). The threats to retaliate against employees who had not attended these profit-sharing meetings also violated Sec- tion 8(a)(1) even though there was, so far as can be de- termined, no actual discrimination against these employ- ees. The threats to retaliate against employees who had not attended these profit-sharing meetings also violated Sec- tion 8(a)(1) even though there was, so far as can be de- termined, no actual discrimination against these employ- ees. I find that during the strick the activities of Michael Bozzuto and company security people in videotaping strikers on February I and early on February 2 (before the shooting incident) likewise constituted unlawful sur- veillance of employees. Cutting, Inc., 255 NLRB 534 (1981). I cannot find the other picket line incidents , such as the incidents in which Carangelo and Chevalier are al- leged to have participated, rise to the status of violations of law. I do think that the interrogations of employees returning to work in February and March about their union hats, and the requests to employees not to wear those hats, constitute separate attempts to coerce those employees and, as such , " eparate violations of Section 8(a)(1). Gossen Co., 254 NLRB 339 (1981); Overnite Transportation Co., 254 NLRB 132 (1981). I find a sepa- rate violation in Charles Carangelo's statement to em- ployees that their Teamsters hats cost them $ 1000 a piece (Intermountain Rural Electric Assn., 253 NLRB 1153 (1981)), but I find that the allegation concerning writings on the restroom walls and conversations between Caran- gelo and Union Steward Cox concerning those writings have not been shown by a preponderance of the evi- dence to have occurred as alleged by the General Coun- sel. Turning next to the course of negotiations, one has to look no farther than notes of the negotiations, entered in evidence by the Respondent, to determine that by Janu- ary 20 the Union had withdrawn practically all of its proposals. All that was left on the table of the Union's original proposals on that date were wages (which all agreed were not really a big issue here), the pension plan, and one other minor item . At the same time the Respondent had still made no movement on its basic pro- posals. By January 31 , the Union had even abandoned its insistence on the pension plan . As I have noted, even this most fundamental concession produced little on the Re- spondent's part and the strike commenced on February 1. All of this convinces me that the Respondent did not approach the negotiations with a genuine intention to reach agreement on any terms but its own. The negotia- tions show that the Company avidly sought agreement in early meetings and, when that tactic did not succeed, unilaterally proclaimed an impasse and refused to consid- er any extension of the existing contract . All of these fac- tors lead to the conclusion that the Respondent refused to bargain in good faith in violation of Section 8(a)(5) of the Act. NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 BOZZUTO'S, INC. (1st Cir. 1953); Columbia Tribune Publishing Co., 201 NLRB 538 (1973). Because of these findings I think there is no question that the Respondent's proposals dated December 10, 1982, in and of themselves constituted a violation of Sec- tion 8(a)(5). I cannot find that the Respondent violated the law by reneging on an agreement dealing with article I on Janu- ary 20. While I generally credit the testimony of Rossig- nol and Lamontagne I do not think this issue is clear enough on the record to permit a finding. There is no dispute that the Respondent said it was going to implement its "last offer" beginning on Febru- ary 1. The record does not clearly show that such was the case.'' At the hearing it was admitted that the profit-sharing plan had not yet been implemented. In any event, whatever changes were made were effectuated not as the result of a valid impasse, but as the result of the Respondent's bad-faith bargaining (Seattle First Na- tional Bank v. NLRB, 638 E2d 1221 (9th Cir. 1980)) and constitute a further refusal to bargain and a separate vio- lation of Section 8(a)(5). However, the lack of clarity in the record about just what was implemented by the Respondent on February 1 makes it impossible for me to find that those employees who did go out on strike were in fact constructively dis- charged. In an atmosphere so suffused with violations of law, however, in a pattern beginning in December 1982 and continuing into March 1983, it is difficult to see how the strike which began on February 1 could be classified as an economic strike. The unfair labor practices I have found commenced before the strike vote of January 8, and, indeed, I find that the impact of these unfair labor practices was pronounced, resulting in the fact that only a minority of the Union's membership actually went out on strike. I find that the strike which began on February 34 This question can be cleared up in the compliance stage of this pro- ceeding. 987 1 was an unfair labor practice strike from its inception. Federal Mogul Corp., 212 NLRB 950 (1974). Finally, I find that by instituting so-called hot lunch and a so-called hotline programs without notice to or consultation with the Union the Respondent has further violated Section 8(a)(5) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices , I shall rec- ommend that it cease and desist therefrom and take cer- tain action designed to effectuate the policies of the Act. Specifically I shall recommend that the Respondent take immediate steps to meet with the Union and that it meet thereafter at reasonable times and confer in good faith with respect to wages, hours, and other conditions of employment.' 8 CONCLUSIONS OF LAW 1. The Respondent, Bozzuto's Inc., is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union 677, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening, placing under surveillance, interro- gating, and promising benefits to its employees, by dis- paraging the Union, and by refusing to bargain with the Union, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of the Act. [Recommended Order omitted from publication.] is I recommend no further remedial order concerning the unilateral changes in wages and other conditions of employment since the record is unclear whether such changes were economically advantageous or not. If not, the changes can be remedied by the backpay order; if so, a resolu- tion would be better left to the collective-bargaining process