Port Plastics, Inc.

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Port Plastics, Inc. and Glaziers, Architectural Metal and Glass Workers Local No. 1621. Case 32- CA-4234 22 April 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 2 August 1983 Administrative Law Judge Burton Litvack issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions as modified2 and to adopt the recom- mended Order as modified. The judge found that the Respondent violated Section 8(a)(1) of the Act by the 9 November 1981 statement of the Respondent's president, Ken Pine, that he had been able to speak on a one-to-one basis to employees, but would no longer be able to do so if the Union came into the warehouse. The judge found that Pine's comment conveyed the un- lawful impression that all direct dealings between i The Respondent and the General Counsel have excepted to some of the judge's credibility findings 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 2 We agree with the judge's conclusion that the Respondent violated Sec 8(a)(3) and (1) of the Act by discharging employee Robert Delhagen for engaging in union activities We therefore find it unnecessary to pass on whether Delhagen's discharge also independently violated Sec 8(a)(I) because such a finding merely would be cumulative and would not affect the Order We also agree with the judge, for the reasons stated by him, that the Respondent violated Sec 8(a)(5) and (1) by refusing to recognize Delha- gen as shop steward and refusing to meet with him to discuss grievances In this regard, our dissenting colleague's reliance on Swearingen Aviation Corp, 227 NLRB 228 (1976), is misplaced because in that case the em- ployees were not represented by an exclusive bargaining representative Member Dennis would not find that the Respondent violated Sec 8(a)(5) and ( 1) by refusing to deal with a union steward regarding griev- ances before a collective-bargaining agreement was signed In her view, as long as an employer is willing to adjust grievances through bargaining, it need not recognize an in-plant representative for grievance processing unless it has contractually agreed to do so See Swearingen Aviation Corp, 227 NLRB 228, 236 (1976) Native Textiles, 246 NLRB 228 (1979), on which the judge relied, is distinguishable because it involved an employ- er's refusal to recognize a particular individual as the union's "area repre- sentative" under a collective -bargaining agreement providing for "area representatives " In adopting the judge's finding that the Respondent engaged in unlaw- ful surface bargaining , we have considered the totality of the Respond- ent's conduct and have not relied on any individual contract proposal employees and management might be banned be- cause of union representation. We disagree with the judge's finding that Pine's comment violated Section 8(a)(1). In our view, the Respondent's statement "simply explicates one of the changes which occur between employers and employees when a statutory representative is se- lected," Tri-Cast Inc., 274 NLRB 377 (1985). As the Board stated in Tri-Cast: Section 9(a) . . . contemplates a change in the manner in which employer and employee deal with each other. For an employer to tell its employees about this change during the course of an election campaign cannot be character- ized as an objectionable retaliatory threat to deprive employees of their rights, but rather is nothing more or less than permissible cam- paign conduct. Id. at 377. See also Michael's Markets, 274 NLRB 826 at 827 (1985). Accordingly, we shall dismiss this portion of the complaint.3 AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 9. "9. By telling employees that the Respondent would never give anything to the Union during contract negotiations, and by interrogating employ- ees regarding their feelings toward the Union, the Respondent engaged in conduct violative of Sec- tion 8(a)(1) of the Act." 2. Insert the following as Conclusion of Law 10 and renumber the subsequent paragraph. "10. The employees' strike against the Respond- ent in protest of the Respondent's failure and refus- al to bargain with the Union was an unfair labor practice strike from its commencement on 3 May 1982." AMENDED REMEDY We agree with the judge's finding that the strike, which began on 3 May 1982 and which was still in progress on the dates of the hearing in this case, was an unfair labor practice strike from its com- 9 We shall amend the judge's Conclusions of Law, modify his recom- mended Order, and issue a new notice to reflect this reversal Member Johansen finds that , under Sec 102 46 of the Board's Rules, the Respond- ent's exceptions and brief raise no cognizable issue with respect to this aspect of the complaint We also shall amend the judge's Conclusions of Law to reflect his con- clusion, which we adopt , that the strike which began on 3 May 1982 was an unfair labor practice strike . Additionally, in agreement with the Gen- eral Counsel 's exceptions, we shall modify the recommended Order to provide for reinstatement and backpay for the unfair labor practice strik- ers in the manner described in the "Amended Remedy" section of this decision 279 NLRB No. 50 PORT PLASTICS mencement. The judge, however, failed to include in his recommended remedy, which we otherwise adopt, a provision for the reinstatement of the unfair labor practice strikers. Accordingly, we shall order the Respondent to offer to all unfair labor practice strikers who make unconditional offers to return to work immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without preju- dice to their seniority and other rights and privi- leges previously enjoyed, dismissing, if necessary, employees hired on or after 3 May 1982 as their re- placements. Backpay shall commence for each striker 5 days after he or she makes an uncondition- al offer to return to work.4 Backpay shall be com- puted in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Port Plastics, Inc., Sunnyvale, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(g) and reletter the subse- quent paragraph. 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) Upon their unconditional offer to return to work, offer to all unfair labor practice strikers im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights and privileges, dismiss- ing, if necessary, any persons hired by the Re- spondent on or after 3 May 1982, and make them whole for any loss of earnings they may have suf- fered as a result of the Respondent's refusal, if any, to reinstate them in the manner set forth in the amended remedy section of the Board's decision." 3. Substitute the attached notice for that of the administrative law judge. 4 The General Counsel's brief states that the Respondent has reinstated the strikers We shall leave this matter to the compliance stage of this proceeding APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 363 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 bargain in bad faith with Glaziers, Architectural Metal and Glass Workers Local No. 1621, as the exclusive collective-bargaining repre- sentative of the employees in the following appro- priate unit: All warehouse employees, including cutters, shippers, and receiving clerks, employed at our Sunnyvale, California facility; excluding all other employees, office clerical employees, guards, and supervisors as defined by the Act. WE WILL NOT fail and refuse to meet with duly designated representatives of employees in the unit for the purpose of resolving grievances. WE WILL NOT unilaterally implement changes in our policy regarding the handling of incoming per- sonal telephone calls for employees in the afore- mentioned unit. WE WILL NOT terminate you because you engage in union or other protected concerted activities. WE WILL NOT tell you that we will not offer the above Union anything during contract negotiations. WE WILL NOT interrogate employees regarding their feelings toward the above Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively in good faith with Glaziers, Architectural Metal and Glass Workers Local No. 1621, as the exclusive bargaining representative of employees in the ap- propriate unit described above, concerning rates of pay, wages, hours of work, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. The certi- fication year shall extend 1 year from the date such new negotiations begin. WE WILL rescind all changes made in the policy regarding the handling of incoming personal tele- phone calls for our employees. WE WILL make employee Robert Delhagen whole for any loss of wages suffered by reason of his unlawful discharge with interest. WE WILL remove from our records and files any and all references to the discharge of Robert Del- 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hagen and notify him, in writing, that this was done and that evidence of his unlawful discharge will not be used as a basis for future action against him. WE WILL, on their unconditional application to return to work, offer to all unfair labor practice strikers immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, dismissing if necessary any em- ployees hired in their respective places on or after 3 May 1982, and WE WILL make them whole for any loss of earnings they may have suffered as a result of our refusal, if any, to reinstate them within 5 days of such applications. PORT PLASTICS, INC. Ariel L. Sotolongo, Esq., for the General Counsel. Richard Pace, Esq. (Hill, Farrar & Burrill), of Los Ange- les, California, for the Respondent. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. This matter was heard by me on October 14 and 15 and No- vember 3, 1982, in San Jose and Oakland, California. On September 29, 1982, the Regional Director for Region 32 of the National Labor Relations Board issued an amend- ed complaint and notice of hearing, based on original and first amended unfair labor practice charges filed by Glaziers, Architectural Metal and Glass Workers Local No. 1621 (the Union) on January 27 and February 9, 1982, respectively, alleging that Port Plastics, Inc. (Re- spondent) had engaged in acts and conduct violative of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act.' Respondent filed an answer, denying the commission of any unfair labor practices. At the hearing, all parties were permitted to examine and cross- examine witnesses, to offer any relevant evidence, to argue their positions orally, and to file posthearing briefs. On the entire record, including my observations of the demeanor of the witnesses and the posthearing briefs, which have been carefully considered, I make the following FINDINGS OF FACT I. JURISDICTION At all times material, Respondent has been a California corporation, with a place of business in Sunnyvale, Cali- fornia, where it is engaged in the distribution of plastic products. During the 12-month period immediately pre- ceding the issuance of the amended complaint, which period is representative, in the course and conduct of its business operations, Respondent sold and shipped goods ' The General Counsel was permitted at the hearing to further amend the complaint with an additional 8(a)(1) and (5) allegation, or services valued in excess of $50,000 directly to cus- tomers located outside the State of California. Respond- ent admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent admits that the Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES 1. Did Respondent, during the time period December 1981 through February 1982, fail and refuse to bargain in good faith with the Union as the collective-bargaining representative of certain of its employees by a. Rejecting union contract proposals on access and union security without offering meaningful counterpro- posals? b. Announcing a continuation of its policy of granting merit raises while, at the same time, proposing a wage freeze for a 12-month period? c. Exhibiting an overall intransigence and unwilling- ness to make meaningful proposals or counterproposals in order to avoid reaching an agreement? 2. Did Respondent, about November 25, 1981, refuse to meet and discuss grievances with the Union's desig- nated shop steward in violation of Section 8(a)(1) and (5) of the Act? 3. Did Respondent, on November 11, 1981, discontin- ue its prior overtime and use of telephone for personal business policies without first bargaining with the Union, in violation of Section 8(a)(1), (3), and (5) of the Act? 4. Did Respondent act in violation of Section 8(a)(1) and (3) of the Act by first suspending and, ultimately, discharging employee Robert Delhagen on March 1, 1982? 5. Did Respondent violate Section 8(a)(1) of the Act by. a. About November 9, 1981, interrogating employees concerning their feelings about the Union and an im- pending NLRB election? b. About November 9, 1981, threatening employees that if the Union was victorious in the election, Respond- ent would make no bargaining concessions to the Union? c. About November 9, 1981, warning employees that if the Union became their bargaining representative, em- ployees could no longer come directly to it with their problems? d. About November 25, 1981, telling an employee that Respondent did not recognize the Union as the employ- ees' bargaining agent? e. About March 1, 1982, denying the request of em- ployee Delhagen for a representative to accompany him during an interview when he had reasonable cause to be- lieve such would result in discipline? 6 Is a concerted work stoppage engaged in by Re- spondent's warehouse employees about May 3, 1982, an unfair labor practice strike? PORT PLASTICS 365 IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The discharge of Delhagen and related events The record discloses that Respondent is engaged in business as a "stocking distributor," purchasing plastic materials from nationwide manufacturers and selling the products throughout the southwest and western United States. In these areas, Respondent acts as the exclusive distributor for the aforementioned manufacturers' plastic products, with the materials sold under the name of the respective manufacturer. Respondent operates with five branch warehouse facilities, at which products are pur- chased and stored and from which products are sold to Respondent's customers. One such facility is located in Sunnyvale, California, and it is divided into two separate sections: the front office in which management, salesper- sons, and clericals work and the warehouse which is manned by four employees and a "leadman," Ronald Sferrazzo.2 Kenneth J. Pine is Respondent's president and is based in southern California; William A. Baldwin is the Sunnyvale plant division manager. Both Pine and Baldwin are, Respondent admitted, supervisors within the meaning of the Act. The genesis of all subsequent material events and inci- dents was a November 10, 1981 NLRB-representative election conducted at the Sunnyvale branch at which time Respondent's warehouse employees were to decide if they desired the Union as their representative for pur- poses of collective bargaining.3 There is no dispute that on the previous day, November 9, at approximately 1 p in., a meeting was held in the conference room at the facility. Present were Pine, Baldwin, Sferrazzo, and three of the four warehouse employees, Robert Delhagen, Raymond Molina, and Steve Castro.4 Delhagen testified that Pine began, speaking about different aspects of the Company, including "how far we had come in the last couple of years" and a change in the available insurance program. "He went on stating that we could talk one-on- one as it was, and if the Union had come in there, that we would not be able to do so. And he made a comment that: 'If those bastards . . . get inside, we won't give them anything."' At that point, according to Delhagen, Pine asked the warehouse employees, as a collective group, "what were our feelings about the Union, how did we feel"; each employee said nothing and just shrugged his shoulders Thereupon, Pine went around 2 Although alleged in the amended complaint as a supervisor within the meaning of Sec 2(11) of the Act and although his status was exten- sively litigated, Sferrazzo is not alleged to have engaged in any unlawful conduct, and whatever role he played in the events herein seems to have been peripheral Thus, at most, he seems to have acted as a conduit of management policy Accordingly, as I do not believe it is necessary to do so, I shall make no finding about his supervisory status 3 The voting unit encompassed all warehouse employees, including cutters, shippers, and receiving clerks, employed by Respondent at its Sunnyvale facility, excluding all other employees, office clerical employ- ees, guards and supervisors as defined in the Act Baldwin testified that Respondent did not place Sferrazzo's name on the list of eligible voters The fourth employee, Raul Canales, testified that he was not present at this meeting, Delhagen and Molina corroborated him Both Pine and Baldwin placed Canales at the meeting but, I believe, were mistaken the room, "asking each individual, 'What do you feel about it?"' There were no replies, and Pine commented that he thought none of the workers cared about the election the next day. The meeting ended with Pine saying there were "several different things" about which he could talk but would do so individually with employ- ees after the meeting if they so desired. According to employee Molina, Pine began the meeting, asking the workers "how we felt towards management and towards the benefits." After commenting regarding a company pension plan, Pine asked "how we felt about the Union. He asked us all how we felt, and no one really said any- thing. And then he asked us individually how we felt about it." After each employee expressed a lack of knowledge about the Union, Molina testified, Pine "stated that if the Union did come in, he wouldn't give those bastards anything."5 Testifying on behalf of Respondent, Baldwin stated that he remained at the meeting only long enough to in- troduce Pine; he then left the room. Pine6 testified that he "started off' by saying he wanted to "update" the employees on the business, including their health insur- ance coverage which he had previously promised to up- grade. "And I went around the room and asked the indi- viduals . . . if the plan met with their approval." Next, Pine mentioned the upcoming election but cautioned that "in no way, shape, or form was I going to influence them one way or another as to how they should or should not vote " According to the company president, he said he was "proud" to be able to speak to employees on a one-to-one basis. As to that, Molina asked if such would continue if the Union was voted in. Pine respond- ed "that I would be glad to talk to them about anything and everything . . . however, I did caution them that . . I would not be able to talk to them about anything regarding wages, benefits, anything of that nature. I would have to talk through a Union representative." Then, according to Pine, Delhagen asked if he would bargain with the Union, and Pine replied, " [A]s I under- stood the law, I would be required to bargain, and that I would bargain, and we would bargain tough, but we would bargain fair; we would bargain consistently; we would listen; we would counterpropose." He denied uti- lizing the epithet "bastards" or saying no concessions would be made during bargaining. Leadman Sferrazzo also testified as to the meeting, stating that Pine began by discussing company benefits and then asked the employ- ees if there were any problems with them. Next, some- one asked a question regarding the Union, and Pine re- plied that he could not comment "because of the elec- tion." According to Sferrazzo, Pine concluded the meet- ing, telling the employees that if anyone had questions, he would speak to him on a one-to-one basis after the session ended. Sferrazzo denied that Pine used the term "bastards," and he claimed that Pine neither asked indi- 5 Castro was not called as a witness by the General Counsel and no explanation was given for his absence 6 Pine emphasized the fact that he did not schedule this meeting merely because the NLRB election was scheduled for the next day but admitted, "I hold meetings from time to time at various plant locations, depending on different events that are going on in the company " 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vidual questions of each employee nor mentioned bar- gaining with the Union. The result of the NLRB representation election was the selection of the Union, by the warehouse employees, as their bargaining representative. Early the following morning, November 11, according to Robert Delhagen, Sferrazzo spoke to Raul Canales and him near the UPS desk in the warehouse. "Mr. Sferrazzo . . . informed us that there would be no more phone calls in, as well as no more overtime to be done." Placing this incident 2 weeks later, Canales recalled that "Ron just called me and Bob ... and said that we would no longer get overtime, or we weren't allowed no more phone calls, unless they went through management." Regarding to the preexist- ing incoming telephone call practice and the change, Delhagen testified that if a warehouse employee received a telephone call, the facility receptionist's practice was to page the employee on the loudspeaker system. "And we would come and get the phone, unless we were really busy. . . . they would allow us to come to the phone at any time, especially for emergencies." After Sferrazzo's announcement, he testified that employees could no longer take incoming telephone calls. Rather, the recep- tionist spoke to the caller; wrote down a message, if any; and placed this message in an envelope. "Whenever he saw fit," Sferrazzo would pick up the envelope and dis- tribute the messages contained therein. Canales' recollec- tion of the changed procedure was different: "[A phone call] goes through the management, Mr. Baldwin, and he would give us the message, if he felt it was important." As to the effect of the changed practice, Canales testified that he received approximately nine written telephonic messages and never heard his name paged for a tele- phone call." Echoing this, Raymond Molina stated that subsequent to the election, he was no longer paged for telephone calls and that he began receiving written noti- fication of the call-usually 10-15 minutes after the time of the telephone call. Both Baldwin and Sferrazzo denied that any change in the procedure for receiving incoming telephone calls ever occurred. As to this, Sferrazzo testi- fied that the procedure has been the same for the entire 6-year period of his employment-when an incoming call for a warehouse employee is received, the receptionist pages the employee who, if he is not busy, answers the telephone. Regarding to the announced change in Respondent's overtime practice that no more such work would be done, employee Canales testified that he only did over- time work during the twice yearly inventory taking, and employee Molina testified that any overtime work was "rare," depending on Respondent's business. Apparently, if a policy change occurred, its main effect was on Robert Delhagen. He testified that prior to Sferrazzo's announcement, his overtime work was extensive-"Basi- cally, if I wanted overtime, I could ask and get it, as well as . . . if there was something to do." He further ° Denying that he ever transmits personnel policy messages from Bald- win, Sferrazzo also denied ever telling employees there would be no more pages for incoming phone calls and no more overtime work 8 He insisted he would have heard a page because a loudspeaker was near his work station asserted that prior to the election neither Sferrazzo9 nor Baldwin ever denied a request by him for overtime work. In support of his allegation that Sferrazzo's com- ment was the precursor of a policy change, counsel for the General Counsel offered as General Counsel's Exhib- it 2, Delhagen's payroll records for the time period Janu- ary 1, 1981, through February 28, 1982. These show the following time periods during which overtime was worked. 10 2-week period Hours 1/1/81- 1/15/81 0 1/16/81- 1/31/81 0 2/1/81 - 2/15/81 16-1/2 2/16/81- 2/28/81 8 3/1/81-3/15/81 2 3/16/81 - 3/31/81 0 4/1/81-4/15/81 1 4/16/81 - 4/30/81 0 5/1/81- 5/15/81 1 5/16/81 -5/31/81 0 6/1/81 - 6/15/81 0 6/16/81- 6/30/81 0 7/1/81- 7/15/81 1 7/16/81- 7/31/81 0 8/1/81-8/15/81 0 8/16/81 -8/31/81 0 9/1/81- 9/15/81 0 9/16/81-9/30/81 5 10/1/81- 10/15/81 22 10/16/81 - 10/31/81 34 11/1/81- 11/15/81 12 11/16/81 - 11/31/81 0 12/1/81- 12/15/81 0 12/16/81 - 12/31/81 0 1/1/82 - 1/15/82 0 1/16/82 - 1/31/82 0 2/1/82- 2/15/82 0 2/16/82 -2/28/82 0 Contrary to the position of the General Counsel, Sfer- razzo and Baldwin denied any change in the assigning of overtime. As to his authority in this area, Sferrazzo testi- fied that Baldwin makes the decisions that overtime work is necessary and that he has no authority, beyond checking with the former, to assign such work. i i Re- garding the overtime policy, Baldwin testified that over- time work is assigned according to business consider- ations except during inventory penods. Whenever he au- thorizes it, employees are advised that overtime work is available, and they may voluntarily accept or reject it. Baldwin further testified that overtime is normally an un- 9 Delhagen testified that Sferrazzo possessed authority to assign over- time work In this regard, Canales and Molina both testified that during inventory periods, Sferrazzo requested that they work overtime 10 The two inventory periods appear to be February and October of each year ii While continuing to insist during rebuttal that overtime was granted to him on request, Delhagen backtracked slightly, stating that sometimes Sferrazzo gave him permission on his own and other times the former initially consulted with Baldwin before permitting the overtime PORT PLASTICS usual occurrence, and both Sferrazzo and Baldwin denied that such work is given on employee requests. Within a week of the NLRB election, Delhagen was elected by the other warehouse employees as their shop steward, and the Union, by letter, notified Respondent of that selection. Shortly thereafter, both Molina and Can- ales received written warning notices for reporting late to work. Determined to complain to Baldwin about these, Delhagen requested to speak to the former and during the morning of November 25 walked into Bald- win's office. Delhagen testified, "I [stated] .. . that I wished to work with him on a normal basis . . . to be able to work things out, that there would be no problems . . . hoping that we could work together . . . to work out with the employees . . . any problems, grievances, or anything." Baldwin interrupted, asking what the meet- ing was about. Delhagen explained that he was there to discuss the notices given to Molina and Canales for being late. Baldwin said the notices were no concern of Delha- gen's, and the latter responded that he was the shop steward and that he had a right to discuss grievances. After stating that he was aware of Delhagen's designa- tion, Baldwin said, "I do not recognize a Union here at Port Plastics nor do I recognize you as a shop steward." Delhagen said that he was able to work things out, but Baldwin again interrupted, asking the employee to leave his office as the warnings "[are] of no concern to you." The next day, according to Delhagen, he noticed Bald- win standing by his office door and asked to again speak to him about Canales. Baldwin said he would meet with Delhagen after 5 p.m., and Delhagen said it was his right, as shop steward, to speak to Baldwin. The latter replied, "You have no rights." Delhagen returned to Baldwin's office at 5 p.m. but after waiting 15 minutes while Baldwin was working, he just left. Baldwin testified regarding to the November 25 meet- ing, stating that after Delhagen entered his office and sat down, he asked Delhagen for the purpose of the conver- sation . "He said that he wanted to talk about the tardy notices that were issued to Molina and Canales. My re- sponse to him was that it had nothing to do with him and they were issued directly to [the employees]." Del- hagen replied that he was the "duly-elected shop stew- ard" and was in a position to inquire about the matters. Baldwin testified that he again said he would speak to the employees directly, and Delhagen repeated that he was their shop steward. Baldwin admits he replied: "Bob, I recognize you as Bob Delhagen. If you have a problem, I will talk to you on it . . . I don't recognize you as shop steward. You are not representing these two people." Baldwin specifically denied saying that he did not recognize a union as the employees' bargaining rep- resentative. Shortly after the NLRB election, Delhagen began compiling a list of what he perceived to be safety prob- lems within the warehouse and showed it to the other warehouse workers, telling them he intended to report the problems to the California Department of Industrial Relations, Division of Occupational Safety and Health (CAL-OSHA). The other employees supported Delha- gen's actions and suggested additional safety-related problems. Thereafter, on November 23, Delhagen tele- 367 phoned CAL-OSHA in order to institute investigatory procedures.' 2 Among the matters he mentioned were a leaking roof, water dripping onto equipment, and racks which were not bolted to the floor.' 3 After having been denied access to the facility on an earlier occasion, Ray Selan, an agent for CAL-OSHA, was admitted inside on January 13, 1982. Delhagen ob- served Sferrazzo and Selan as they entered the ware- house and approached his work station. The CAL- OSHA official introduced himself to Delhagen and said he was at the warehouse in order to investigate the aforementioned complaints. Then, Selan commenced asking Delhagen a series of questions including his name, address, job title, and job duties. Selan began walking through the warehouse, and Delhagen "started to walk with him." At that point, Selan turned to Delhagen and asked if Respondent was a union shop. According to Delhagen, he replied that it was and that he was the shop steward. At this point, Sferrazzo interrupted, stat- ing that the facility was not then a union shop as there was no union contract. Acknowledging the lack of a bar- gaining agreement, Delhagen responded that he was still the shop steward and that an employee was permitted to accompany a CAL-OSHA inspector through the plant. Selan said that Delhagen was correct, and the latter con- tinued on the tour of the premises. Subsequent to the on- site inspection on January 21, the state agency issued its report on the investigation, finding that Respondent was in violation of several safety standards and assessing pen- alties of approximately $600.14 The record establishes that about the same day as the CAL-OSHA inspection, January 13, Delhagen, without going through Respondent and for his own personal use, telephoned one of Respondent's suppliers, Apache Plas- tics, Inc., and ordered some material. In speaking to that company's representatives, Delhagen identified himself as "Bob" from Port Plastics. Consequently, a bill for over $400 worth of materials was sent to Respondent and re- ceived shortly thereafter. Respondent's purchasing agent was unable to find any order for the listed merchandise; as a result, an investigation was undertaken to ascertain who had ordered the materials.' 5 Delhagen testified, "They went looking through the plant. They talked to the other Bobs. It was a big mix-up, and it was a waste of their time " On January 20,16 Sferrazzo asked Delha- gen to report to Baldwin's office. He did so, and Bald- win and Delhagen spoke alone. According to the shop steward, Baldwin began by saying he understood Delha- gen had purchased some plastic. The latter said be 12 Delhagen admitted placing the call on his own and not at the behest of other employees l' The parties stipulated that Respondent was aware that Delhagen had made the original complaints to CAL-OSHA and that he was in communication with an agent of that agency, giving him necessary infor- mation 1" Although Delhagen admitted that no supervisors ever mentioned to him his involvement with CAL-OSHA, such was mentioned during the contract negotiations between Respondent and the Union 15 Compounding the problem was the fact that no less than three "Bobs" work for Respondent, two salesmen and Delhagen i6 Delhagen placed the date as January 8, however, January 20, Bald- win's recollection, seems more accurate based on the listed order date, January 13 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought some plastic from Apache Plastics. At this point, Baldwin produced a list of the purchased materials and said "that they had some problems finding me, because somebody went by the name of Bob, and they had some problems finding . . . which Bob it was, and he proced- ed [sic] to say . . . that from now on, use your last name when you make a phone call to anybody . . . . and that way there would be no mix-up." The meeting ended at that point. Baldwin testified that he personally conducted the search for the "Bob" who placed the order with Apache Plastics and that he approached Delhagen and "I asked him to come to my office." He continued, "I asked Bob whether or not he had purchased this material and he said, yes . . . . I mentioned to him that the policy is that: you come to me to purchase material. I . . . have the material shipped to us . . . and resell it to you at cost plus ten percent. I warned him that any future actions of this type could lead up to and including termination, and he was not to call our suppliers for anything." Concern- ing the manner of how the material was ordered, Bald- win stated that he told Delhagen there had been "a lot of confusion" over the name "Bob," causing him to deduce it was Delhagen; he denied instructing Delhagen to use his last name in speaking to suppliers as it was "not perti- nent" to the issues. Finally, concerning this meeting, Baldwin testified that "no one" was in his office when Delhagen entered.17 At this point, it is necessary to examine the record evi- dence regarding Respondent's policy concerning employ- ee contacts with its suppliers. Kenneth Pine testified that within each branch, purchasing authority is confined to the branch manager, the sales personnel, and the pur- chasing agents and that only these people are authorized to contact manufacturers and request any information, in- cluding pricing and technical information. He continued, stating that no other employees may have direct supplier contact by phone or in writing. Explaining that the ne- cessity for this policy is "confidentiality," Pine further testified that all branch managers are made aware of Re- spondent's policy and "they, in turn, have notified our people verbally, including warehouse people." One aspect of this policy concerns employee purchases from manufacturers. Pine stated that, in accord with the fore- going, warehouse personnel are not permitted to deal di- rectly with manufacturers. Rather, the procedure is that the employee informs the branch manager of the product he wants to purchase and the name of the supplier; the branch manager will then contact the latter and ascertain the availability of the item and its list price; next, the branch manager will inform the employee that his cost will be 10 percent over the list price; if the employee agrees to that price, the product will be purchased on Respondent's own order and will be shipped directly to the branch warehouse. Pine testified that this procedure has been utilized "a number of times" in the past. While emphasizing the importance of Respondent's employee- " Directly contradicting Baldwin, Sferrazzo claimed that he was present at this January 20 meeting-but as an observer rather than a par- ticipant His account basically corroborates that of Baldwin, portraying the latter as warning Delhagen not to directly contact a supplier again "or it could ultimately lead up to or including termination " manufacturer contacts policy, Pine admitted that no- where is any aspect set forth in writing, not even in the "employee guidebook," which is a manual given to each new hire and in which, supposedly, all personnel policy matters are set forth and explained.18 Asked how, in these circumstances, employees could be expected to be aware of the foregoing, Pine averred, "I think the word- of-mouth has gone from the Branch Manager, to the sales people, to the purchasing people, to the warehouse people. It is fairly well known within the company. In fact, maybe better than fairly well known." In this regard, Pine asserted that he instructed branch managers, including Baldwin, to disseminate the policy to employ- ees "numerous times over the years." Baldwin corrobo- rated Pine about the specifics of the alleged policy 19 and testified that he personally informed Delhagen of its spe- cifics of its specifics "sometime ago, probably in the spring or summer of `81."20 Contradicting both Pine and Baldwin, inside salesman Jason Holmes, who testified on behalf of Respondent, stated that Respondent's policy, regarding employee contacts with manufacturers, is not as restrictive as represented by the former two. Accord- ing to Holmes, "Well .. . outside of being authorized agents for the company and buying for the company, we are not allowed to buy or purchase any materials on our own." Elaborating, he testified, "[I]f you .. . purchase any materials for personal use, you go through the com- pany, and they usually charge a nominal fee of ten per- cent." Asked if this company policy applied to telephon- ing a supplier regarding product characteristics, Holmes answered, "characteristics only, it would be okay to call." Later, asked if a warehouse worker had permission to seek information from manufacturers concerning prod- uct specifications, he corroborated his earlier testimo- ny- "he could ask about it." Holmes also testified that the foregoing procedures had been explained to him by Respondent's former Sunnyvale general manager and that all employees were told the same procedures when hired. Finally, the warehouse employee witnesses specifi- cally denied knowledge of any of the above policies or procedures. Thus, Delhagen testified that the first time he became aware of any problem in contacting manufac- turers was when Baldwin cautioned him to use his last name on such occasions. Also, Molina and Canales denied ever being told anything in this regard. is Included in the guidebook, under the heading "The Following Acts or Forms of Conduct Are Prohibited," are 13 specified employee acts such as smoking in restricted areas, fighting , and disregarding direct orders from supervisors Baldwin corroborated Pine that the no-manufacturer-contacts policy was important He attributed the lack of such being set down in writing to the fact that "we have never had a problem in this particular area before " 19 Baldwin named seven individuals, besides himself, at the Sunnyvale branch as having authority to contact manufacturers outside salesmen Hugh Brown and Ken Reese, inside salesmen Jack Waite, Bob Umphress, Jason Holmes, and Bob Antone, and purchasing agent Roseanne di Pietro 2° Baldwin stated that Delhagen was aware of the procedure for pur- chasing items from Respondent's suppliers as in the spring or summer of 1981, Baldwin purchased some polyethylene tubing from a supplier for Delhagen The latter did not deny this testimony PORT PLASTICS A few weeks after his January 20 meeting with Bald- win, about February 18, 1982, Delhagen twice again con- tacted manufacturers directly; on these occasions, he as- serted, the telephone calls were made in order to obtain product specifications. Delhagen testified that he wanted information on a product known as polyolyfan tape and that one morning in February he approached Jason Holmes in the sales area and asked how he could find out about that material's properties. According to Delha- gen, he and Holmes then looked through an "encyclope- dia" but, finding no such information, the latter gave him a telephone number and said he should speak to whom- ever answered. Maintaining that he did not know whom he was calling, Delhagen discovered that the manufac- turer was Dynamic Packaging Limited. He testified fur- ther that on completing the call, he turned to Holmes and inquired about another product, thermax. Holmes could locate no information on that item and suggested that Delhagen speak to Hugh Brown, an outside sales- man. According to the alleged discriminatee, he there- upon approached Brown, explaining what he wanted. Saying that what Delhagen described sounded like a product with which he was familiar, Brown could locate no information but gave him the telephone number of The Goforth Company. Delhagen called that company and asked about the flammability and toxicity of one of its products. Jason Holmes testified that he did have a conversation with Delhagen regarding a product, poly-lay-flat tubing. According to Holmes, after giving Delhagen " the basic brush-off' on two occasions that day, in response to the latter's question as to where Respondent purchased its tubing, Holmes mentioned Dynamic Packaging. Contra- dicting Delhagen, Holmes denied suggesting that Delha- gen call that manufacturer and said he had "no reason to believe how" Delhagen obtained its telephone number. In any event, shortly thereafter, Holmes allegedly over- heard Delhagen speaking on the telephone to someone at the Goforth Company. Concerning what was said, he testified, "I know it was about a type of product infor- mation and how to purchase some sort of material - 1121 Admittedly aware that he could get into trouble for his role in Delhagen's activities, Holmes reported Delha- gen's conversation to Baldwin because, asserted Holmes, the warehouse employee had violated company proce- dures by speaking to a manufacturer regarding purchas- ing materials. On learning of Delhagen's activities from Holmes, Baldwin22 requested that Delhagen report to his office that day. 21 Holmes was certain about the latter point, but he admitted that flammability and toxicity may have been mentioned "but I felt it went further than that " 22 Concerning what Holmes reported Delhagen had said on the tele- phone, Baldwin first testified, "He told me that Bob had questions on some polyethylene material and that the catalogs were next to his desk and he wanted to look through them " Baldwin then admitted that all he knew after speaking to Holmes was that Delhagen had looked through a catalog Later, however, Baldwin altered his testimony, stating that Holmes reported that he overheard Delhagen speaking to the Goforth Company not regarding pricing but about "specs" and "sizes " From the foregoing, Baldwin somehow deduced that Delhagen "was getting pric- ing [and] delivery information on their particular products." 369 Delhagen testified that Sferrazzo was present during his subsequent conversation with Baldwin. According to Delhagen, he sat down and Baldwin asked if he had made any phone calls. He admitted it, and Baldwin asked to whom Delhagen replied that he had spoken to both Dynamic and Goforth; Baldwin said that he thought he told Delhagen not to telephone anyone. Delhagen said that was not true and he had just been cautioned to use his last name as there had been a mixup. Baldwin there- upon changed the subject and began discussing Delha- gen's job duties. He said that "I was hired on as a cutter, that I was supposed to get certain jobs done, `Is that clear?' he started saying. `I want you to sweep under- neath the floors, is that clear? I want you to pick up and mark all your material at the end of the day, and have it done correctly at the end of the day, is that clear?"' Del- hagen testified that Baldwin uttered these comments "yelling almost at the top of his voice." Next, Baldwin asked if Delhagen knew for whom he worked. The latter responded Port Plastics; and Baldwin said for him, also. The branch manager concluded, saying that Delhagen should do as he was required or "we will get somebody who will."23 Later that same afternoon, Delhagen next testified, Baldwin and Sferrazzo approached him at his work station in the warehouse. Baldwin again asked if Delhagen made those telephone calls, and latter said that he previously had said so. Baldwin said that he thought he made it clear that Delhagen was not to make any more telephone calls. The latter replied that such was not true, and Baldwin responded that he did not want Delhagen to make any more telephone calls. Baldwin testified that when Delhagen reported to his office, he asked the employee if he had phoned suppliers. Delhagen said, yes, and named Dynamic Packing and the Goforth Company. Baldwin responded that he had warned Delhagen 6 weeks earlier not to contact manu- facturers for any reason. To this, "[Delhagen's] first re- sponse was he didn't remember, and then he said he didn't understand what I had told him." Thereupon, Baldwin told the employee to return to work.24 Subse- quently, according to Baldwin, he telephoned both Dy- namic and Goforth and was informed by each that Del- hagen "was attempting to get information on purchasing material." More specifically, Baldwin spoke to the Go- forth Company receptionist and was told that Delhagen inquired about the availability and specifications of a product. Then, Baldwin testified, he spoke to Ken Lebo- vitz of Dynamic Packaging; the latter said Delhagen called "about possibly purchasing some polyethylene." Baldwin did not deny a second conversation with Delha- gen on February 18. 23 Asked whether he already performed the job duties mentioned by Baldwin, Delhagen answered, "Some of them, yes, but most of them, no, not per se every day He was stating that he wanted them done every day These weren't all jobs that I had to finish [everyday], although they were jobs-like, I would do them once a week " 24 Sferrazzo, who, by all accounts, was present at this meeting, re- called, "Mr Baldwin asked Mr Delhagen, 'Did you contact the factories again, direct'After Delhagen admitted doing so , Baldwin said that he had warned him about this previously Delhagen responded that he did not recall or had misunderstood 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next afternoon, February 19, Baldwin once again summoned Delhagen to his office, and they spoke, with Sferrazzo present. Delhagen testified that Baldwin was writing something when he entered and said nothing for approximately 5 minutes. He then looked up and asked if Delhagen had anything more to say regarding the two phone calls. Delhagen denied violating any rules, saying that he had only been told to use his last name when speaking to manufacturers. He continued, saying that he could find no rules regarding manufacturers contacts in the employee manual or anywhere else. Thereupon, Baldwin handed Delhagen a letter, stating that the latter was suspended, without pay , until March 1 and that during the suspension period, Baldwin would investigate the circumstances of the two telephone calls. The meet- ing ended at that point. Baldwin's recollection of this meeting is consistent with that of Delhagen. Thus, ac- cording to Baldwin, the employee entered the office, and Baldwin said he was investigating the circumstances of what occurred the day before and "to allow me enough time to make sure that everything ... was correct. . . I was going to suspend him for the following week." Bald- win testified that other than denying he was told not to do so but rather merely to state his last name , Delhagen neither denied making the two telephone calls nor of- fered an explanation for them. Delhagen's suspension was for a period of 5 working days, until March 1. Baldwin testified that during this time period he received two unsolicited letters, from Ken Lebovitz of Dynamic Packaging and Robert Goforth of the Goforth Company. Both letters, addressed to Bald- win, concern telephone calls to the respective companies by Delhagen. The Goforth letter, Respondent's Exhibit 2, reads as follows: Per our conversation, I am enclosing a telephone memo received at our office yesterday from a Bob Delhagen. As normally I know all of the Port sales people, but not this one, I asked Curt and was told he is in your cutting department. As you know, we are always pleased to offer tech- nical assistance on products we represent or are fa- miliar with. In this case, however, we haven't the faintest interest in these products and would nor- mally expect your authorized sales people to know that. We're here to help, but need your cooperation in eliminating these non-productive calls. Thank you for your help.25 The Ken Lebovitz letter, Respondent's Exhibit 3, reads as follows: Last week, a gentleman by the name of Bob Delha- gen phoned my office, representing himself as a rep- resentative of Port Plastics and requesting informa- tion on a poly product. 25 The enclosed telephone memo discloses that the caller was Bob Delhagen, that he called regarding a material called "thermax sheeting," and that he called regarding that product 's "flammability & toxitivity [sic]-needs info " I later found out that even though he works for Port, his duties are in the realm of warehousing and not that of sales or purchasing. I feel this call was wasteful for both you and myself. Bob apparently called on your time and your "dime." For myself it was a time waster for one of my people and also I personally was brought into the original conversation . I am writing this letter to advise you what has happened in your or- ganization. I do not wish this to in anyway affect the relationship that Port Plastics and Dynamic Packaging have had in the past.26 Baldwin testified that on receipt of the Goforth and Lebovitz letters, his investigation into the circumstances of Delhagen's admitted telephone calls on February 18 was completed and that his determination was to termi- nate the employee. Accordingly, Baldwin continued, about February 24 he telephoned Pine and Richard Pace, Respondent's labor relations attorney, and informed each of his decision concerning Delhagen and his rationale. Thereupon, Pace dictated a discharge letter, which Bald- win immediately prepared and executed. The discharge letter reads as follows: We have completed the investigation into the facts which resulted in your suspension from work on February 22nd. Set out below are our findings and conclusions. You previously violated company policy on or about January 13, 1982, when you made unauthor- ized contact with one of our suppliers, misrepresent- ed yourself as an agent of Port Plastics, and pur- chased material at a substantial discount without an authorized purchased [sic] order. Following this in- cident, you were told that you were not to contact any of our suppliers directly for any reason in the future and directed to channel any orders for mate- rials or requests for pricing information through the General Manager. You were verbally warned that any repetition of this sort of conduct would result in further disciplinary action, up to and including termination. On or about February 17, 1982, less than five weeks later, disregarding that warning, you again misrep- resented yourself as an authorized agent of Port Plastics and attempted to obtain pricing and other product information from two of our suppliers. Each of these incidents were confirmed by the ven- dors you contacted, and you yourself admitted having made the contacts. Such flagrant and repeated violation of company policy cannot be tolerated. Our supplier relation- ships are both extremely important and highly sensi- tive, and your actions jeopardized those relation- ships. Moreover, your failure to heed the prior 26 Neither the Goforth letter nor the Lebovitz letter was received for the truth of the information contained therein Rather, each was received as evidence of Delhagen's communication with each company PORT PLASTICS warning concerning such conduct not only consti- tuted a violation of an important company policy, but showed outright contempt for the authority of your supervisors. Under the circumstances, I have no choice but to terminate your employment with Port Plastics, effective March 1, 1982.27 According to Baldwin, the signed discharge letter re- mained in his files until the end of Delhagen's suspen- sion. As he had been instructed to do, Delhagen reported to the Sunnyvale facility at 7:30 a.m. on March 1. Accom- panied by a union organizer, Ed Jones, Delhagen waited in the lobby for Baldwin to arrive. Baldwin entered at approximately 8 a.m. and asked Delhagen to come into his office. According to the employee, he requested that Jones sit in on the meeting. Baldwin responded that he would see Delhagen alone. The latter said that he wanted Jones as a representative, and Baldwin repeated that he would see Delhagen and only Delhagen. Jones interrupted, asking Baldwin if he meant that Jones could not come into the office with Delhagen. Baldwin merely repeated that he would see "Bob" alone. Baldwin does not dispute refusing to permit Jones to represent Delha- gen, and Jones left the building at that point.28 Delhagen consented to proceed with the meeting and, as he en- tered Baldwin's office, Sferrazzo walked in and closed the door behind him. Delhagen testified that Baldwin was silent for a moment and then asked if he had any- thing to say on his behalf. Delhagen responded that any discipline was unjustified as he had not violated any written rule and as he had followed instructions on Feb- ruary 18 by using his last name. Baldwin asked if Delha- gen had anything else to say and handed him the above discharge letter. In contrast to the employee, Baldwin testified that he handed Delhagen the letter at the outset of the meeting and waited while Delhagen read it. The latter looked up, and "I asked him if he had any ques- tions about the letter and he said that he never did these things He never violated company policy, and didn't agree with what he read on the letter." Baldwin re- sponded that Delhagen was terminated, and the meeting ended 29 2. The bargaining The Regional Director for Region 32 certified the Union as the collective-bargaining representative of Re- 29 Baldwin acknowledged that all available evidence established that not only did Delhagen state his full name to the representatives of both Dynamic Packaging and the Goforth Company to whom he spoke on February 18 but that he never said he was an "agent " of Respondent Asked, in these circumstances, what he meant in the second paragraph of the discharge letter wherein he accused Delhagen of having "misrepre- sented [himself] as an agent" of Respondent, Baldwin testified that Delha- gen "was representing himself in a situation where normally one of our salespeople, or purchasing people, or myself might be in the same con- versation with a supplier " Thus, according to Baldwin, the supplier rep- resentatives would have believed they were dealing with an authorized agent 28 According to Delhagen, after Baldwin refused to permit Jones to accompany him, he asked for employee Canales to be present Again, Baldwin refused 29 If he was present, Sferrazzo did not testify- what occurred at this meeting 371 spondent's warehouse employees on November 19, 1981. William Brown, business manager and financial secretary of the Union , testified that after some initial communica- tions he and Ken Pine agreed to hold an initial contract bargaining session on December 16. Shortly after arrang- ing the meeting, Brown sent an initial contract proposal to Pine "so he would have time to look at them prior to our first meeting." The record establishes that this first negotiating session was held at the Sunnyvale facility and began at 6 p .m. Present were Brown , Ed Jones, Del- hagen, Pine, and Baldwin ; Brown and Pine were the main spokesmen . No serious bargaining occurred, Rather, according to Brown, he explained the Union's proposals to Pine, and the latter asked a few questions, inquiring about the Union's territorial jurisdiction. Brown replied that although the Union's territorial area covered just four counties , its members worked through- out the San Francisco Bay area. Pine asked about the Union's health, welfare, and pension provisions , specifi- cally inquiring whether such were above what Respond- ent was then paying, and said he was thinking of institut- ing an employee pension plan. Finally , according to Brown , Pine wanted to know if a union contract at Sunnyvale would affect Respondent 's unorganized em- ployees on the west coast. Pine 's recollection of this meeting was rather vague , essentially that the entire ses- sion "was really more of an exploratory and a point by point explanation on behalf of the Union as to their ini- tial proposals and I asked some questions accordingly." The parties agreed to meet again on January 6, 1982. The second bargaining session occurred on the sched- uled date at the Sunnyvale facility , commencing at 5:10 p.m. The same individuals as at the initial meeting were present, with Borwn and Pine acting as the spokesmen. The former's version of the meeting is as follows. At the outset, Pine stated that he wanted to go through the union proposals "one by one" and comment on each. Concerning the duration of the contract , the Union pro- posed 1 year, and Pine accepted that . The next para- graph, "Employer Qualifications," was unacceptable to Pine as its provisions were already covered by law and, therefore, unnecessary. Brown disagreed, saying the sec- tion was important as Respondent would bind itself to abide by existing state and Federal laws and regulations. The next provision was entitled "Equal Opportunity"; Pine said such was unnecessary as it was covered by law. Brown wanted the provision for purposes of "clari- fication." They next discussed the grievance and arbitra- tion article . Pine said it should be broken into two dis- tinct sections, felt the grievance language should be "clarified," and said Respondent would have a counter- proposal. Concerning arbitration , Pine said the costs should be shared equally, and he objected to any lan- guage permitting the Union to strike during the contract term, saying "that the company is going to insist on a tight, very tight, no-strike clause." Next, Pine discussed the health and welfare section, stating that he wanted to defer on this and all other economic proposals "to a later date." Brown agreed but cautioned that he wanted to discuss economics "before long." 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the provision entitled "Hiring of New Em- ployees," Pine asserted that he had been advised that such a clause was unnecessary. Brown replied that it would be good for Respondent as the Union had an available manpower pool. Pine replied that he was "un- comfortable" about having to call the Union for any- thing. Brown and Pine ageed that the holidays' article was economic and should be deferred. Next, they discussed the provision concerning the hours of work and overtime. Pine said he hoped they could agree on this, but he did not "want the Union in- volved in making any kind of company policies." Brown replied that it was the Union's duty to represent employ- ees about their wages, hours, and working conditions and that the Union was "adamant" that language on working hours was necessary. They next discussed an article concerning injured em- ployees; Pine said it was too broad and he would give a counterproposal. The next article was a no-stnke/no- lockout provision. Pine said he wanted an "absolute" pledge from the Union in this regard and would give a counterproposal. Pine and Brown next discussed the "Pay Conditions" article, in which the Union requested a weekly payday. Pine said that Respondent paid twice each month and that it would be a hardship to pay on a more frequent basis. Brown promised to speak to his members about it. Concerning the pension plan article, Pine said Respondent "did not want to get involved in any kind of a pension plan that the Union's involved in." Brown responded that the article was quite important. Next, with regard to the "Piecework, Rebate, and Sub- contracting" provisions, Pine said it was entirely unac- ceptable "because this would destroy his running of the business and flexibility of management." After reaching agreement on the language of the contract preamble, Pine and Brown turned to the union-security and recog- nition provisions. Pine said he did not want such as a condition of employment as it would cause the Company to lose good people in the future. Brown replied that the Union felt "strongly" about such a clause, believing the election gave it the right to represent all employees. As to the safety and seniority articles, Pine said there would be counterproposals. One section of the seniority article concerned shop stewards: Pine "did not feel that the Union would need a shop steward." According to Brown, inasmuch as Pine continually characterized the union proposals as "unacceptable," the union representa- tives caucused at that point. When they returned, Pine said that he had not meant this to be an absolute refusal on such provisions, but rather "that he didn't like it" and would counterpropose. Pine thereafter said that he could agree to a union bulletin board but that any shop stew- ard language "was totally unacceptable" as "they don't need shop stewards, and they did not need a shop stew- ard in the shop." Finally, the vacations and sick leave provisions were deferred along with any discussion of wages. The meeting ended at 7:50 p.m.; however, as Pine and Brown exchanged small talk prior to leaving, the former said he did have a complete set of counterpropos- als and gave these to Brown as Brown was prepared to depart. Pine3O testified that subsequent to the initial negotiat- ing session, he commenced contemplating the type of counterproposals which he would offer. One factor weighing heavily in his thinking was that several com- petitors' employees were unrepresented. To draft propos- als, he met with Attorney Richard Pace. The latter, ac- cording to Pine, showed Pine several collective-bargain- ing agreements which he had drafted for other clients, and the latter studied them in order to find a model which "would give the company the flexibility to oper- ate as a business." Ultimately, Pine was shown a contract between Ray C. Bannon d/b/a Sav-a-day Linen Service and Local 512, Warehouse, Office Workers' Union, International Ladies' Garment Workers' Union, which contract was, according to Pace, drafted by him.31 Pine was satisfied with the language of this agreement and asked Pace to utilize it as a model for counterproposals to the Union; the record establishes that Pace did so in drafting Respondent's counterproposal, General Coun- sel's Exhibit 9. Analysis of the exhibit discloses the fol- lowing types of clauses. an open-shop clause and an anti- coercion clause, which prohibits any employee from co- ercing, harassing, or intimidating others into joining the Union-with violators subject to discharge; an extremely broad and lengthy (four pages) management-rights clause which, among others, retains for Respondent the exclu- sive rights to establish hours of work, to increase, alter, or reduce job classifications, to institute technological changes, to establish work rules, to subcontract all unit work, and to abolish whatever past practices it consid- ered inefficient or "unnecessary" and which states that such enumerated rights are not all inclusive; a broad no- strike clause which prohibits, among others, unfair labor strikes, states that any discipline given to alleged viola- tors may not be the subject of a contractual grievance, and establishes significant monetary penalties, covering loses of any type suffered by Respondent for any cov- ered work stoppage; a grievance procedure which ex- cludes participation by the Union prior to arbitration; an arbitration clause which limits the authority of the arbi- trator, particularly in absenteeism and tardiness cases and in the establishing of remedies; a limited and narrow se- niority provision which includes a provision specifically excluding the Union from participating in layoff deci- sions; a wage provision which denies the Union the right to file grievances over the results of a merit raise review; an hours-of-work provision which grants Respondent the exclusive control over establishing hours of work and workdays during the week; a restrictive "zipper" clause; and a provision entitled "no contract bar" which, in es- sence, states that the contract, during its term, "shall not constitute a bar to either [a] decertification petition or a decertification election." so Pine's version of the January 6 negotiating meeting is fairly cor- roborative of that of Brown and will not be discussed in great detail for that reason and as the General Counsel does not, as far as I can deter- mine, allege any surface or bad-faith bargaining by Pine on that occasion 31 There is no evidence about the circumstances surrounding the nego- tiations for this agreement or as to the contracting union's reasons for agreeing to it PORT PLASTICS The next contract bargaining session occurred a week later, January 13, at the San Jose, California Hyatt Hotel. Brown, Jones, and a union field representative, Richard Mora, attended on behalf of the Union; and Attorney Pace, Pine, and Baldwin represented Respondent. Brown and Pace, who testified that he was an experienced par- ticipant in collective bargaining, were the main spokes- men. Prior to the meeting, Brown prepared counterpro- posals in several areas, based on the prior discussions and on Respondent's counterproposals and, at the outset, gave these, in written form, to Pace. These counterpro- posals, gathered collectively as General Counsel's Exhib- it 10, concerned the following provisions: grievance pro- cedure, health and welfare, hiring new employees, in- jured employees, no strikes or lockouts, management rights, and other areas. Concerning these, according to Brown, he explained how he came to prepare them. Pace replied that he had drafted Respondent's proposals "and he felt that they must have their language the way it was written so they could remain in business. They didn't feel that they could make any changes per se in our propos- al." Thereupon, Brown testified, they commenced dis- cussing the Union's original contract proposal and coun- terproposals. Concerning the contract's duration, to which Pine had previously agreed, Pace asked that the word "modified" be added, and Brown agreed. Next, after Brown objected, Pace agreed to withdraw Re- spondent's proposed second paragraph to this provision Regarding "employer qualification," Brown reiterated why the Union thought such was necessary; Pace said such was not necessary in view of the applicable Federal and state laws; and Brown responded that the recent OSHA problems demonstrated the need for this lan- guage They next discussed "Equal Opportunity"; Pace said inclusion could lead to double jeopardy problems for Re- spondent and Respondent was opposed to that clause. The next subject was the grievance and arbitration pro- cedure. Brown pointed out that the Union's counterpro- posal "incorporated" Respondent's proposals in these areas At this point, the company people caucused and, after they returned, Brown said he liked Respondent's step procedure and all the language establishing it. In its counterproposal, the Union had retained the original shop steward language; as to this, Pace said it was "un- acceptable" as Respondent did not believe a steward was necessary.32 Brown objected to this, stating that a shop steward would be able to resolve matters without involv- ing the union officials. Pace replied that Respondent did not want a steward pointing out problems to it, With regard to arbitration, Brown said that the union counter- proposal essentially incorporated Respondent's language with slight changes. Pace mainly objected to the no- stnke/no-lockout language, stating that Respondent "did not want anything in there to give us the right to have the strike for any reason." 32 Brown stated that such was the constant position of both Pine and Pace and that the usual explanations were that the unit was too small or that Respondent did not want the Union interfering with employer-em- ployee relations 373 Next, Brown spoke about the health and welfare arti- cle, saying his counterproposal was new language to ensure against future cost increases. Next, the hiring pro- cedure language was discussed. Brown explained that the Union's counterproposal had simplified and liberalized the original language. Pace characterized the language as "unlawful" and rejected it. Next, they discussed hours of work. Brown said the Union just could not accept Re- spondent's "broad" language. Pace responded that Re- spondent needed its language to retain "flexibility" and "to stay in business." Concerning the "Injured Employ- ee" provision, Brown gave Pace new language. Pace said he did not agree with it as Respondent paid its people to work, not to see a doctor. Also, Pace said that if any em- ployee is hurt due to his own negligence, such was his own problem and that there should be no language like this in the contract. Finally, both Pace and Pine said that they felt uncom- fortable about having to notify the Union about employ- ee injuries. The parties next discussed the no-strike and no-lockout paragraph. Brown said that he understood Respondent desired highly restrictive language but that he wanted to retain the right to strike for failure to pay wages and/or fringe benefits. Pace reiterated that Re- spondent wanted strict language to protect it at all times. Concerning the pay conditions paragraph, Brown said the employees agreed to leave the pay periods as they were; Pace replied that Respondent was opposed to having another party audit its books and could not agree to such language. Next, with regard to the pension plan provision, Pace said he was opposed to any such plan and said that any employer which did agree would be "nuts." Pace based this on the new Federal pension laws. Next, they discussed the subcontracting proposal, and Pace said that any restrictions on management in this regard "would be disaster for the company." Pace reject- ed the provision. They next discussed the Union's union- security clause which established a "union shop." Brown said the Union was "very strong" on this clause; Pace "stated that they will not negotiate any kind of clause like this for the expansion of the union representation. In fact, he said, "Hell no on this clause." The next major subject was the proposed seniority-clause language. Pace explained that he defined it as "only service to the com- pany" and refused to agree to any of the Union's lan- guage Concerning all economic proposals (sick leave, holidays, wages, etc.). Pace deferred, saying such will be discussed later or he would propose some language. Con- cerning a "Union Representation" clause, Brown ex- plained how union agents conduct themselves during plant visits. Pace said the employees could have a bulle- tin board for union business but he would not permit the union agents to visit the plant as "some radical, exciting type of thing . . would happen " Concerning wages, Pace said that Respondent would submit a proposal. At this point, according to Brown, the parties took a lunch break. After they returned, Pace said that he wanted to discuss Respondent's proposed language. Thereupon, Brown and Pace discussed Respondent's rec- ognition and management-rights language. Concerning the former, Brown said the Union's union-security lan- 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guage was very important . Concerning the latter, Pace wanted to discuss the Company's "many rights" individ- ually. Concerning subcontracting, Pace said the Compa- ny should be able to do as it wished; Brown replied that he only wanted to protect the Union 's members and make sure they had an 8-hour day. Pace turned to disci- pline and discharge , saying such were important for keeping employees "in line." Concerning a no-strike clause, Pace said that Respondent wanted this to be "air- tight" on stopping strikes . Brown did not believe negoti- ations were moving forward because "nothing was coming back across the table," and the union representa- tives caucused . After they returned, Brown presented to Pace what he described as a "priority list" of qualifica- tions, and all subjects (union security, working hours, shop stewards, seniority, employer qualifications, and all economic items) which, he explained , would have to be included in any final agreement. Concerning union secu- rity, Pace stated that the parties were "poles apart" and rejected the union proposal . Concerning working hours, Pace said he would consider them . Concerning shop stewards, Pace responded that the Company "wishes to deny access to the Union representatives ." Concerning seniority, Pace explained that Respondent wanted its lan- guage and "nothing to do with the Union proposal." Fi- nally, Pace said he did not want any of the employer qualification language in the final contract . The meeting, according to Brown, then adjourned. Attorney Pace's version of this January 13 meeting is similar to that of Brown but differs in significant aspects. At the outset, Pace denied ever saying to Brown that he "rejected" any proposal of the Union with the exception of the latter's pension plan proposal. Concerning the ses- sion, Pace testified that there was discussion at the start concerning Respondent's proposed contract, with him saying that although he would consider alternatives, Re- spondent's proposal "was a serious one . We're always amenable to persuasion to the extent you can convince us we can do without certain language , we'll modify our proposal ." Regarding the employer qualifications provi- sion, Pace said that everything therein was covered by existing law and arbitrators had no experience in those areas. Brown replied that unions always have such lan- guage, and Pace replied that the last argument carries "very little weight with me." Pace then made similar ar- guments regarding the Union's equal opportunity provi- sion, stating that potential grievants would have two bites at the apple-before an arbitrator and in Federal court-and that such seemed to be double jeopardy. According to Pace, they then discussed the Union's grievance and arbitration provision . After agreeing to some provisions of the Union's counterproposal, Pace said Respondent was not agreeable to the shop steward section, emphasizing the fact that it was just a four-man shop. Brown asserted that the Union had a right to have a shop steward if it so desired . Pace replied that the Union had the right to negotiate and that Respondent had the right to say no . According to Pace , Brown said that he did not always have stewards in four-man shops but it would help here . Pace replied that such was not justified by the numbers. Remaining on the subject of the grievance and arbitration procedure, they discussed an employer proposal which permitted the Company to refuse arbitration in disciplinary cases, in turn, removing the barrier of the no-strike clause from the Union. Brown said he would consider it. The parties then discussed the Union's hiring new em- ployees article. Pace termed it ambiguous and illegal on its face and said such seemed to be an exclusive referral system, leading to a closed shop. Next, the parties discussed the Union 's hours of work and overtime language . Brown said the company propos- al was "totally unacceptable" and asked for language giving employees some protection- "something guaran- teeing work." Pace replied that "if the Union will guar- antee that the Company will have business , 33 the Com- pany will guarantee that the employees will have work." After discussing briefly the merits of the Union's injured employees language, Brown and Pace turned to the no- strike/no-lockout articles . Brown said that he wanted an exception covering the nonpayment of wages. Pace said this was unjustified, citing California law in the subject area. Pace then said the Union's language would not cover sympathy strikes and unions' rights in that regard. Next, the parties discussed pay conditions language, with Pace refusing to agree on any language permitting the Union to audit Respondent's books on request. Pace termed this unjustified as Respondent had no correspond- ing right. They then discussed the Union 's pension plan provision with Pace stating that any employer which agrees to such a proposal "belongs in a soft room some- where." Pace added that any such plan would have po- tential "open ended" financial liability for Respondent and despite Brown's assurances that his Union's trust fund did not have withdrawal liability, Pace did not change his view . The next section discussed was union security and recognition. Brown said the Union wanted a union shop but Pace said that Respondent wanted union membership optional and that union security was too costly and unjustified for employees who had previously not worked with any understanding of such an obliga- tion. 34 Thus, according to Pace, he said no to the union proposal . The next major area of discussion was seniori- ty. Brown stated that he wanted the Union 's language and criticized the Company's proposal as having nothing to do with seniority. Brown said that he wanted to deal with the issue; Pace responded cryptically, "[Y]ou crawl before you walk. Our seniority proposal offers layoff protection." At this point, according to Pace, Brown said the Union needed a wage proposal . Pace replied that he would not refuse to do so but with little agreed-upon language , "[W]e cannot really come close to a final wage offer at this time." Pace continued , saying to Brown that ' Pace denied ever saying that Respondent required certain contract language in order to remain in business Testifying on rebuttal , Ed Jones said that Pace used this term "frequently" during this session in explain- ing proposals However, he then testified that what Pace said was "to keep the flexibility of their business " Asked to explain his inconsistent testimony, Jones muddled matters further, stating that Pace's term was "to remain in business And to remain in business , they needed to keep their flexibility " 14 Asked whether he said, "hell , no" to this proposal , Pace's response was most indefinite Finally, he averred that such may have been his re- sponse to the pension proposal but not to union security PORT PLASTICS if the Union accepted his offer, it would have no incen- tive to agree to the noneconomic material . Pace admitted that, in effect, "I was saying to them that you're going to get an unacceptable offer." After a lunchbreak, Brown began by returning to union security, saying it was a union right and the Union felt quite strongly on it. He said that it was important and that anything less would cause problems . Brown said it was as important to the Union as management rights was to the Company. Pace suggested that they speak about the latter topic and said that the retained rights in that regard were rights traditionally held by the employ- er. Brown said that he had no real objection so long as the Union had provisions elsewhere protecting employ- ees from layoff and other guarantees . For example, Brown had no problem with the inclusion of subcon- tracting as long as the employees had salary guarantees. After negotiations in other areas for approximately 45 minutes, Pace testified , he asked Brown for a summary of what the Union considered to be major areas of im- portance Brown, in reply, listed three subject areas: wages, union security, and seniority. Moments later, after a short caucus, Brown elaborated, setting forth six sub- jects as ones on which agreement "would solve prob- lems." These were economics, union security, working hours and overtime, union representation and shop stew- ard, seniority, employer qualifications, and hiring proce- dure Pace responded that the parties were far apart on union security; Brown said the Union needed it and it was to be regarded as important to the Union as manage- ment rights was to Respondent. Concerning union access, Pace reiterated that such would be a problem given the possibility of a radical business agent "stir[ring] up the troops." The meeting then ended. Either at the just concluded bargaining session or sub- sequent thereto, the parties agreed to meet again on Jan- uary 21 in Pace's office in Los Angeles. Prior to the meeting, Ken Pine met with Pace, and they decided on a wage offer to the Union. Pace testified that a major con- sideration in their thinking was the Union's demand of an $11-per-hour wage for all unit employees, an increase to- taling in excess of 100 percent in some instances.35 He considered this to be unreasonable and had no idea what the Union would actually accept The attorney told Pine that although obligatory, if he placed an offer on the table and it was accepted, "then the Union would have absolutely no incentive whatsoever to accept any of our other proposals with respect to non-economics." Pace further testified, "But what I suggested is if we make a low offer, I assumed that they, I assumed that they would make a counter offer . . . which would give me an idea of what range they were looking for, really. In other words, make a serious wage offer." Based on these considerations, Pine36 and Pace formulated Respondent's opening wage proposal-a 12-month wage freeze for all employees Pace insisted, at the hearing, that such was not out of line and that it "was an opening gambit. It 35 For example , Canaies was then earning $5 05 per hour 36 Pine corroborated Pace, stating he "put out an offer of a wage freeze and decided to see what the Union's counterproposal was, and to see how serious are they, how serious were they really going to be." 375 was an opening offer. This was not intended as a final offer."3 7 The meeting commenced in Pace's law offices on the scheduled date. At the outset, Pace announced that he was leaving and that Pine would be Respondent's spokesman. Brown and Ed Jones represented the Union. The former testified that Pine began by stating that the Union had requested a wage proposal and that he had one. He explained that the mere presence of the Union on the scene presented a cost to the Company, an addi- tional cost of 20 percent. "And he then stated that the Company was going to propose a twelve-month wage freeze because of the extra cost the Union situation is causing them." Pine added that he could not predict future costs and that he was having such freezes else- where in the Company Brown said he could not accept a 12-month freeze such as was proposed and if that was the proposal, there was nothing more about which to talk. Brown asked if Pine meant that Respondent could not afford to pay more Pine responded, as instructed, that "it's not necessarily that we can't accord it. We just won't do it." At this point, Brown and Jones abruptly walked out, and the meeting ended. Pine testified that he began the session by saying he was there to speak about wages He said economists agreed that the economy was going to become worse in the next 6 months and he had no idea what Respondent's costs would be. He continued, saying that the Chamber of Commerce estimated that a union could increase these costs by from 20 to 50 percent-he was not sure of how much but was certain of a definite cost increase . "I men- tioned that we needed some period of time to try and assess both costs. And I then presented a wage freeze for a period of 12 months.38 Pine further testified that he ex- plained to Brown that one company branch already was under a wage freeze and that Respondent was feeling the effects of the nationwide economic recession. Brown re- plied that he could not take such a proposal back to his members and there was nothing else to talk about. He and Jones thereupon arose and left the room. Pine re- ported back to Pace on what the Union's reaction had been. The latter testified that he did not consider what had transpired as a serious development, viewing the Union's conduct as basically theatrical in order to em- phasize its distaste for Pine's proposal-"So I saw it as straight Playhouse 90. I did not see it as anything seri- ous." Contrary to Pace's optimism, the events of this last bargaining session apparently had caused the Union's ne- gotiators to become apprehensive regarding the course of bargaining with Respondent.39 Nevertheless, accord- 34 Pace instructed Pine not to plead the "offer" as poverty but rather to inform the Union it was not that Respondent could not pay more but rather it would not do so 38 According to Pine, "I honestly viewed it as a preliminary first time offer, and then they would counter offer I had no idea whether we'd go through twenty negotiations on wages but I only had to figure that wages were probably going to take longer than any other part of negotia- tions " 39 I note that 6 days later the Union filed the original unfair labor practice charge in this case, alleging a refusal to bargain by Respondent based on the wage freeze proposal 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to Ed Jones, "we had hoped that [the 12-month wage freeze] was an initial bargaining stance by the Company and that we had hoped that we could reach an agreement and make some movement." Accordingly, he contacted Pace on February 5 and the latter agreed to meet with the union negotiators on February 11 in San Jose at the Hyatt Hotel. On the scheduled day,40 Bald- win and Pace4 i appeared on behalf of Respondent, and Ed Jones and Richard Mora, a field representative, were present for the Union. Jones testified that, after some "small talk," Pace mentioned the recently filed unfair labor practice charge, terming it a "joke." He replied that the Union was there to bargain about a contract, and Pace asked what Jones had to say to them. Accord- ing to Jones, he responded that the Union was not at- tempting to destroy Respondent but wanted only to reach a fair and equitable contact with which both sides could live. Jones said the Union was prepared to make "movement" that day and what was hampering this was all Respondent's "legalistic bullshit." Pace smiled and said, "[W]e're ready to start and you're selling and we're not buying." At that point, Pace also said he wanted to reiterate Respondent's entire economic proposal, believ- ing the Union received just part of it-"in regards to the economic items . . . a twelve-month wage and benefit freeze." Jones replied that the Union had previously re- jected this proposal. Jones then said that he wanted to go into the follow- ing language areas: recognition of a shop steward, sub- contracting, and a guaranteed 8-hour workday. Concern- ing the shop steward, Jones said the Union felt that such an individual would assist in resolving grievances and that, in this regard, Bob Delhagen, who was the elected shop steward, and Baldwin had been acquaintances for a long period of time and liked each other. Because of this, Jones said, they could resolve 90 percent of all griev- ances, and the union officials would not have to be in- volved. "Mr. Pace's answer to that was, you've got our position on that. We feel . . . a shop steward is ridicu- lous to have. And also even if we wanted to have one, we wouldn't have anyone like Bob Delhagen that goes around calling OSHA. The answer is no."42 Next, Jones raised the matters of subcontracting and a guaranteed 8- hour day, saying that he understood the type of business Respondent was in and the latter's need for flexibility and that he was aware Respondent did subcontract some work. Jones continued, saying that while the Union's proposal was for a no-subcontracting clause, its actual concern was guaranteeing 8 hours for the employees; 40 Pace testified that he had been away on a skiing trip and returned directly to the bargaining session 4' Pace testified that Pine was away on his honeymoon, however, "I do recall going to the final meeting with instructions to hear what the Union has to offer and to relay it to him when he got back from his honeymoon I felt the ball was in the Union's court as to wage nego- tiations " 42 Mora corroborated this, testifying that Jones mentioned Delhagen during discussions on a shop steward clause, saying that one advantage of a shop steward like Delhagen was that Baldwin and him got along to- gether and problems could be resolved right there Pace said that Re- spondent did not need a shop steward "And they didn't want a shop steward, especially a guy like Delhagen who had reported them on a violation , called in OSHA " therefore, the Union would accept a subcontracting clause if Respondent guaranteed 8 work hours per day. Pace's reply was, "Ed, you're selling and we aren't buying." Jones turned to another subject and asked for the Company's policy on merit wage increases. Baldwin responded that Respondent was continuing with such a practice. Jones replied that this was unfair in view of Re- spondent's proposed 12-month freeze on wages and bene- fits. Pace then asked for a caucus and, after he and Bald- win returned, said that Respondent intended to continue its policy and asked if the Union objected. Jones said he would have to consult with his superiors but felt the continuation of merit raises was unfair in view of the proposed freeze. At this point, Jones testified, he felt nothing was being accomplished and inquired if Pace would be available on another date. No agreement was reached, and the meeting ended. Pace testified that Ed Jones began the meeting by saying that previously the parties had reached agreement only on steps in the grievance procedure and that he wanted to discuss everything off the record to get a basic feel for where they were. Pace objected to this and said he thought the parties had reached a point where perhaps there could be no progess without a change of circumstances. He continued, saying, that by walking out of the prior session, the Union seemed to believe negotia- tions had broken down. In this regard, said Pace, he found it "puzzling" why the Union would then file an unfair labor practice charge. Pace added that Respond- ent continued to be ready and willing to meet at reasona- ble times and places to bargain but believed the parties were far apart on crucial issues. Thereupon, discussion commenced on several issues, with the Union initially raising the matter of a shop steward. Jones said he be- lieved the Union had the right to decide whether to file grievances and required a steward to do so. Mora inter- jected that a steward aids both sides. Pace said such was true in some circumstances but not here when just four employees worked in the warehouse. Jones said a stew- ard would aid the Union in servicing the shop. Pace said, "[Y]ou're my adversary, why should I help you? I was being a little petulant at that time." Jones made no reply, asking if Pace was absolutely opposed to having a stew- ard. The latter said yes, inasmuch as the unit was just too small.43 The negotiators next turned to the matter of union access and, according to Pace, "we pretty much reran the whole prior discussion concerning union access with about the same results." Subcontracting was the next issue discussed; Pace corroborated Jones' version of the bargaining on this. Thus, Jones offered to "trade" a guaranteed 8-hour workday for Respondent's right to subcontract work, and Pace said no, as it represented "just a giveaway." Pace testified that Jones next spoke concerning "Hiring New Employees" provision, asking if Respond- ent would interview applicants who were referred by the 42 Pace specifically denied saying that Respondent would not accept Delhagen because he called OSHA However, later in his testimony, in discussing the Union's safety proposal later in the meeting, Pace admitted he said to Jones, "[T]he Company is certainly safety-conscious though not according to the OSHA inspector that Mr Delhagen sent in " PORT PLASTICS Union . Pace said yes, and Jones asked that language be drawn incorporating such in the contract . Pace respond- ed that he would "consider" it. Next, Jones asked for Pace's explanation for the wage freeze proposal. "And I said the company 's position . . . is the economic uncer- tainty of current times. . . . [concerning] when the re- cession will bottom out, and I said the added costs of unionization." Jones then asked if Respondent would continue merit reviews, and Pace answered affirmatively "unless the Union objects." Jones asked if the situation had ever occurred where an employee receives no in- crease after a review. Denying objecting to Baldwin being asked this question, Pace stated that Baldwin an- swered, no. After a short discussion about an injured em- ployee provision, with no change in Pace's position, the latter has Jones asking , "[D]o you have any changes in your proposals? And I said, `No, how about you?' And he said, 'No."' The bargaining session thereupon ended," and there have been no further negotiating meetings. 3. The employee strike There is no dispute that the warehouse employees of Respondent commenced a strike against their employer on May 3, 1982. Robert Delhagen testified that he at- tended a meeting, along with the three other warehouse employees, sometime between late March and late April at which the Union's representatives, Brown and Jones, spoke about the contract negotiations . Regarding Re- spondent's bargaining, the officials said, "they weren't willing to negotiate anything. . . . And they had gotten nowhere." At that point, according to Delhagen, a stike was discussed . Raul Canales placed this meeting at the end of April and testified that William Brown began by discussing the negotiations with Respondent, saying, "that we couldn't negotiate with them, because . . . they didn't want to." A strike vote was then taken, and the employees agreed to strike. Raymond Molina testified that the meeting was in mid-April and that Brown spoke first, saying the Union was attempting to bargain with Respondent but that the latter was not bargaining "at all." Brown then suggested that the employees strike, and a vote was taken. He further testified that Delha- gen's discharge was also discussed , stating, "We felt that it was unfair that he was fired . . . besides not negotiat- ing." Ed Jones testified with regard to this meeting in far greater detail. According to him, Brown spoke first, mentioning that after five meetings, hardly any progress had been made on a contract and that Respondent had agreed to just the duration, preamble, and some steps of the grievance procedure. Brown then said that he did not feel the Company was bargaining in good faith. Jones further testified that he spoke next regarding Del- hagen and the problem caused by his termination. Both Brown and Jones discussed possible employee actions and opined that any strike would be an unfair labor prac- tice strike based on the "company's position in negotia- tions" among other matters. A strike vote was then taken. 44 Pace specifically denied ever responding to Jones , "Ed, you're sell- ing, we're not buying " 377 On June 1, 1982, Respondent offered to reinstate Del- hagen to his former position. This action was taken pur- suant to an order of Andrew Evans, a deputy labor com- missioner of the State of California Division of Labor Standards Enforcement, Department of Industrial Rela- tions, and on his finding that the employee had been ter- minated "for exercising his rights as protected by law." B. Analysis 1. Credibility resolutions At the outset, it is clear that any conclusions about the merits of the instant unfair labor practice allegations are dependent, to a great extent, on my resolution of the credibility of the various witnesses. In making such de- terminations, I have been chiefly guided by what I per- ceive as the testimonial demeanor of each witness. An immediate conclusion in this regard is that, of all the wit- nesses, Ken Pine seemed to me to be the least impressive and the most disingenuous and I am constrained not to credit any of his testimony herein. Other witnesses, prof- fered by both the General Counsel and by Respondent, appeared to be fabricating portions of their testimonies in order to conform such to their party's positions or ver- sions of the facts. These include William Baldwin, Ron Sferrazzo, Richard Pace, Robert Delhagen, and Ed Jones. Such presented a major difficulty for me inasmuch as these witnesses (in particular, Delhagen and Baldwin) directly contradicted each other at significant points. In resolving these conflicts, besides demeanor, I have con- sidered whether the testimonies have been corroborated or contradicted by other accounts and how logical and probable the testimony appeared in the context of th record as a whole. 2. The discharge of Delhagen It is, of course, not in dispute that Robert Delhagen was terminated on March 1, 1982, by Respondent. The amended complaint alleges that, in so doing, Respondent acted in violation of both Section 8(a)(1) and (3) of the Act. In support, the General Counsel postulates two theories for the alleged violations: that Respondent's action were unlawfully motivated both by Delhagen's activities in support of the Union and by his filing of charges with CAL-OSHA over perceived safety viola- tions in the warehouse at the Sunnyvale facility.45 In 45 Contrary to the General Counsel, I do not give any deference to the decision of the deputy labor commissioner of the State of California re- garding the merits of the discharge of Delhagen Such deferral is not warranted for the following reasons Initially, the case on which the Gen- eral Counsel most heavily relies is Adolph Coors Co, 208 NLRB 676 (1974) That case involved no less than six separate tribunals ruling on the merits of a discharge, and the Board deferred to the "conclusive effect" of those decisions as the matter "has already been the subject of extraordinarily lengthy proceedings before numerous tribunals " In con- trast to the highly unusual circumstances of that case , the instant matter involves just one state proceeding -that of the deputy labor commission- er In the only other Board decision involving the same deferral argu- ments, Pacific Intermountain Express Co, 264 NLRB 388 (1982), the ma- jority chose not to defer to the decision of a CAL-OSHA hearing exam- iner, finding it unnecessary to pass on that issue Such leads to the con- clusion that the Board itself views Coors as an aberrant decision limited Continued 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrast, counsel for Respondent asserts that Respond- ent's policy regarding manufacturer contacts was clear and unambiguous; that Delhagen was aware of the pro- cedures; and that, despite warnings that he must adhere to these, Delhagen was discharged for contravening the policy. Accordingly, counsel contends that Respondent possessed substantial business justification for its actions and that Delhagen was lawfully terminated . Concerning this, the General Counsel argues that the proffered reason for Delhagen's discharge was a sham and pretex- tual in nature, warranting the conclusion that Respond- ent harbored unlawful animus against him. In analyzing the alleged violations of Section 8(a)(1) and (3) of the Act, it is initially necessary to determine whether, in fact, Delhagen engaged in union and other protected concerted activities and whether Respondent was aware of such conduct . The record is uncontrovert- ed that on being selected by the other warehouse em- ployees as their shop steward and being so designated, in writing to Respondent , by the Union, Delhagen present- ed himself to Baldwin as acting in the capacity, a fact conceded by the latter . Moreover, during the contract negotiations, the Union continually insisted on the neces- sity for a shop steward , such as Delhagen. Clearly, such constitutes union activity within the meaning of Section 8(a)(3) of the Act. Precision Castings Co., 233 NLRB 183 (1977). Next, the record establishes that after consulting with the other employees about perceived violations of state safety standards in the warehouse and listing their suggestions, Delhagen contacted CAL-OSHA and initiat- ed proceedings by the state agency against Respondent. Since its seminal decision in Alleluia Cushion Co., 221 NLRB 999 (1976), the Board has held that individual employee complaints to state and Federal agencies, such as CAL-OSHA, involving matters of general employee concern, constitute protected concerted activities within the meaning of Section 8(a)(1) of the Act. Michigan Metal Processing Corp., 262 NLRB 275 at fn. l (1982); Pa- cific Intermountain Express, supra at 7-8. Jim Causley, Inc., 232 NLRB 125 (1977). Moreover, by consulting with the other employees prior to contacting CAL- OSHA, unlike the situation in Alleluia Cushion, supra, it is clear that Delhagen engaged in actual protected con- certed activities . Although obviously only one individual made the contact, what was done was clearly as a result of group action and involved a matter of actual employ- ee concern. Diagnostic Center Hospital Corp., 228 NLRB 1215 (1977). There is equally no doubt that Respondent was aware of Delhagen's above conduct . In this regard, Baldwin admitted refusing to recognize Delhagen in his role as shop steward on November 25, 1981 ,46 and Re- to its own peculiar factual circumstances Finally, the decision of the deputy labor commissioner is not entirely clear about the basis for his finding that Delhagen's termination was contrary to California law-the employee's safety-related complaints to both Respondent and CAL- OSHA or Respondent's "disregard" for its employees' safety and failure to take corrective action 46 It is not in dispute that Delhagen sought to discuss with Baldwin on this occasion the warning notices for reporting late to work which had been issued to employees Molina and Canales and that Baldwin refused to discuss the matters with Delhagen The General Counsel argues that Baldwin's conduct violated Sec 8(a)(1) and (5) of the Act Respondent argues to the contrary-that it was not required to recognize a union spondent stipulated that it was aware Delhagen initiated the CAL-OSHA proceedings against it. Of course, the central issue regarding the amended complaint allegations pertaining to the discharge of Del- hagen by Respondent concerns Respondent's motivation for doing so. If motivated by the employees' Union ac- tivities, Respondent acted in violation of Section 8(a)(3) of the Act. Precision Castings Co., supra; United Aircraft Corp., 188 NLRB 633 (1971 ). If motivated by Delhagen's above-described protected concerted actitivies , Respond- ent violated Section 8(a)(1) of the Act. Cal-Waits Inc., 258 NLRB 974, 979 ( 1981); Youngstown Osteopathic Hos- pital Assn., 224 NLRB 574, 575 (1976). Respondent denies being unlawfully motivated and asserts it was mo- tivated solely by business considerations . In cases such as herein, in which the employer's motivation is the deter- mining factor, the Board, with the approval of the Su- premem Court, initially requires "that the General Coun- sel make a prima facie showing sufficient to support the inference that protected conduct was a `motivating factor' in the employer's decision . Once this is estab- lished, the [burden of persuasion] will shift to the em- ployer to demonstrate that the same action would have taken place even in the absence of the protected con- duct." Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 ( 1st Cir. 1981); NLRB v. Transportation Management Corp., 462 U. S. 393 (1983). Three points are relevant to the foregoing test . First, in concluding that the General Counsel has established a prima facie viola- tion of the Act, the Board will not "quantitatively ana- lyze" the effect of the unlawful motive. Wright Line, supra at 1089 fn. 14. Second, while apparently warrant- ing the identical analytical approach , pretextual dis- charge cases should be viewed as those in which the "defense of business justification is wholly without merit." Id. at 1084 fn. 5. Finally, notwithstanding the foregoing shifting burden of persuasion , the General Counsel, at all times, retains the burden of proving a vio- lation of the Act by a preponderance of the evidence. Transportation Management, supra. Gonic Mfg. Co., 141 NLRB 201, 209 (1963). Concerning my conclusions regarding Respondent's motivation in discharging Delhagen, I find that there exists ample record evidence to warrant the inference that Respondent did, indeed , harbor unlawful animus in general and specific animus against the alleged discrimin- atee both for his union activities and for his involvement steward absent a collective-bargaining agreement requiring such The record discloses that Baldwin's actions went deeper than merely refusing to discuss employee grievances, Baldwin refused to recognize both the Union's and the employees' designation of a representative for such pur- poses Contrary to the apparent position of Respondent, the Board views an employer's refusal to recognize their employees' designation of a rep- resentative to discuss grievances, especially when a labor organization is their bargaining representative, as not simply a matter of contract but rather as "an interference with a [fundamental right guaranteed by Section 7 of the Act) that this Board is entrusted with protecting " Native Textiles, 246 NLRB 228, 229 (1980) Although Respondent may not have been required to meet with Delhagen to discuss employee grievances during working hours, certainly it was under a statutory duty to recognize his status and meet with him at some convenient time In these circumstances, by refusing to do so, Respondent, through Baldwin, engaged in conduct violative of Section 8(a)(1) and (5) of the Act PORT PLASTICS with CAL-OSHA. Initially, in this regard, I credit the testimony of Delhagen, as corroborated by employee Molina who, I believe, at all times exhibited the qualities of an honest and credible witness, that, during the No- vember 9, 1981 preelection meeting, Ken Pine described the Union as "bastards" in warning that he would not give it anything during negotiations.47 Next, I credit Delhagen, as corroborated by employees Molina and Canales,48 that immediately after the November 10, 1981 representation election, Respondent implemented a change in telephone procedures, no longer permitting employees to immediately answer incoming personal telephone calls.49 There is no question that this new policy was put into effect without bargaining with the Union and its timing mandates the conclusion that it was intended as retaliation for the employees' selection of the Union as their bargaining representative. In these cir- cumstances, I find that the implementation of this change was violative of Section 8(a)(1), (3), and (5) of the Act and is demonstrative of Respondent's antiunion animus. Kevah Konner, 256 NLRB 67, 71 (1981); Assn. of Apart- ment Owners, 255 NLRB 127, 135 (1981); Brown & Con- nolly, Inc, 237 NLRB 271, 281 (1977); Tufts Bros. Inc., 235 NLRB 809, 820, 821 (1978). Further, a degree of animus was exhibited by Baldwin on November 25 in re- fusing to recognize Delhagen as the warehouse employ- ees' shop steward Finally,SO one must note Attorney 47 Based on my above-stated credibility resolution, I do not credit Pine's denial that he made this comment, and I do not credit Sferrazzo's like denial Analysis of the statement itself discloses that it amounts to an anticipatory refusal to bargain by Pine and, therefore, his comment vio- lated Sec 8(a)(1) of the Act Vincent et Vincent of Allentown Mall, 259 NLRB 1025 (1982), Palby Lingerie, 252 NLRB 176, 180 (1980) Also, I credit both Delhagen and Molina that Pine asked each ware- house employee who attended the meeting what his feelings were regard- ing the Union Inasmuch as Pine gave no assurances against reprisals, this group interrogation was violative of Sec 8(a)(l) of the Act Host Services, 263 NLRB 672 (1982), BE & K, Inc, 252 NLRB 256, 259 (1980) Final- ly, as between the contradictory testimony of Delhagen and Pine, I credit the former's version that Pine commented during the meeting that he had been able to speak on a one-to-one basis to employees but would no longer be able to do so if the Union came into the warehouse Such a comment conveys the unlawful impression that all direct dealings be- tween employees and management might be banned because of union representation and is, therefore, violative of Sec 8(a)(1) of the Act Hahn Property Management Corp, 263 NLRB 586 (1982), Sacramento Clinical Laboratory, 242 NLRB 944 (1979) 48 Like Molina, employee Canales impressed me as being an honest and candid witness I credit his entire testimony 49 Although I credit Delhagen and Canales that Sferrazzo also an- nounced that employees would no longer receive overtime, I do not be- lieve that any sort of change in this regard was ever implemented Thus, the record establishes that warehouse employees primarily worked over- time during the twice yearly inventory periods and that any other over- time was unusual Viewing Delhagen's overtime work for 1981 confirms this, demonstrating that any overtime at other times was sporadic at best Consequently, I do not view the fact that he worked no overtime after the election as the manifestation of any policy change but rather as the normal course of events Further, I do not credit Delhagen that he re- ceived overtime on request No other employee corroborated this asser- tion, and it seems highly illogical 50 Regarding the November 25, 1981 conversation between Baldwin and Delhagen, I do not credit the latter that Baldwin said he did not rec- ognize a union at Port Plastics Inasmuch as Respondent was in the proc- ess of scheduling collective-bargaining negotiations with the Union, such a comment would have been utterly at odds with the true facts I do not believe Baldwin said it 379 Pace's comments regarding Delhagen during the negoti- ating session of February 11, 1982. I credit Ed Jones, as corroborated by Richard Mora, whose demeanor was that of a truthful and straightforward witness, that, while discussing the Union's demand for a shop steward provi- sion, Attorney Pace averred that Respondent had no need for a steward such as Delhagen who reported on the Company to CAL-OSHA. In so doing, I, of course, discredit Pace's denial that he made such a statement, noting his later admission that "the Company is certainly safety-conscious though not according to the OSHA in- spector that Mr Delhagen sent in." Based on the forego- ing, I find that the record warrants a finding that the General Counsel has established a prima facie showing that Respondent was unlawfully motivated in discharg- ing Delhagen. The burden of persuasion thereafter shifted to Re- spondent to demonstrate that it would have taken the identical actions against Delhagen notwithstanding his union activities and contacts with CAL-OSHA. At the outset, inasmuch as the sole alleged basis for the dis- charge was Delhagen's asserted violation of Respond- ent's rule prohibiting unauthorized employee contacts with manufacturer suppliers, the rule itself must be scru- tinized, for if such did not exist or existed in a different form, the rationale for the discharge would obviously be of dubious validity. In this regard, both Pine and Bald- win steadfastly maintained that the no-contacts policy was critical to Respondent due to the confidential nature of its relationships with suppliers and customers, that all employees are made aware of the policy, and that the policy has two aspects: unauthorized employees, includ- ing warehouse employees, may not contact manufactur- ers directly to request technical, pricing, or other infor- mation and employees who desire to purchase products from Respondent's suppliers must do so through the branch managers, who consummate the actual purchase, and must pay a price of cost plus 10 percent. However, Jason Holmes, an inside salesman at the Sunnyvale facili- ty, who testified on behalf of Respondent and who was authorized to maintain manufacturer contacts, corrobo- rated Pine and Baldwin only concerning the existence of the second aspect of the asserted no-contacts policy and specifically contradicted them regarding the first, testify- ing that warehouse employees, while not permitted to re- quest pricing information, were permitted to contact man- ufacturers and obtain information related to product characteristics and specifications. Further casting doubt concerning the existence of the all-encompassing no-con- tracts policy is the fact that nowhere is this set forth in writing. This, I believe, is of overwhelming significance as Respondent publishes an employee guidebook in which all supposedly important personnel matters are found, including a listing of 13 prohibited employee ac- tions, the violation of which could lead to discharge. If the policy exists and if it is as critical as asserted, one would expect the no-contracts policy to be set forth in detail in this booklet; Pine's and Baldwin's explanation for its absence seemed as strained and unconvincing as their credibility on this point. Based on the foregoing, I conclude that the only policy pertaining to employee 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contacts with manufacturers, maintained by Respondent, prohibited purchasing materials directly from them or in- quiring about material prices and that employees were permitted to contact manufacturers to obtain product in- formation. I further conclude that this purchasing policy was not a particularly important one within Respondent's personnel scheme. With the foregoing as background, one gains a proper perspective for viewing the circumstances surrounding Delhagen's discharge. The undisputed fact is that, with- out informing the company of his last name, he pur- chased products directly from a manufacturer, Apache Plastics, Inc., in early January 1982. In doing so, I be- lieve Delhagen knowingly violated Respondent's proce- dural policy for such direct purchases from suppliers. In this regard, noting that he failed to deny, on rebuttal, Baldwin's testimony that he had, in fact, gone through Respondent to purchase materials from a manufacturer the previous spring, I cannot credit Delhagen's denial of knowledge of Respondent's procedures for such pur- chases. Further, concerning their meeting about the Apache Plastics purchase, I credit the version of Bald- win over that of Delhagen as I think the latter's testimo- ny represented a coverup of his violation of company policy. However, in so doing, I specifically do not credit Baldwin's assertion that he ended the meeting by warn- ing Delhagen "he was not to call our suppliers for any- thing." This is based on my conclusion that Respondent had no such policy and on my belief that Sferrazzo, who corroborated Baldwin on this point, fabricated5 i his tes- timony that he was present during the conversation. Ac- cordingly, the record warrants the conclusion that at the close of his January 20 meeting with Branch Manager Baldwin, Delhagen was on notice that if he purchased materials directly from one of Respondent's suppliers again, he would possibly be terminated . The further con- clusions are warranted that Baldwin's warning went no further than stated above and that he fabricated the above-quoted portion of his testimony regarding the Jan- uary 20 meeting in order to justify utilizing the events of February as a pretext for terminating Delhagen. As with the Apache Plastics incident, there is no dis- pute that in mid-February Delhagen placed telephone calls from Respondent's sales offices to two manufactur- ers, Dynamic Packaging and the Goforth Company, seeking product information. Between the versions of Delhagen and Jason Holmes concerning the circum- stances of the telephone calls and specifically what infor- mation Delhagen requested from the manufacturers, I credit that of Delhagen as being more reliable. In this regard, I note that Holmes testified in a hesitating manner about this incident and seemed to be attempting to protect his position vis-a-vis Respondent. Further noting the apparent manufacturer confirmation contained in Respondent's Exhibits 2 and 3, I find that Delhagen violated no policy restrictions during these phone con- versations, having sought information relating solely to 5' Baldwin was certain that "no one" else was present during the con- versation with Delhagen Presumbably, this includes Sferrazzo In these circumstances, the latter's recollection of what was said cannot be cred- ited product specifications. Also, although Holmes testified that he told Baldwin that same day that Delhagen was requesting pricing information from manufacturers, the branch manager contradicted Holmes and corroborated Delhagen, testifying the former merely reported Delha- gen was seeking information concerning specification and sizes and that Baldwin just deduced such meant pric- ing information. Bearing in mind that the foregoing incident occurred within weeks of notification to Respondent that, based on Delhagen's initial contact, CAL-OSHA was seeking approximately $600 in penalties from the Company for alleged safety violations and in the midst of contract ne- gotiations with the Union during which the necessity for a shop steward, such as Delhagen, became a contentious issue, I believe the conclusion is warranted that Baldwin seized on the two innocuous telephone calls to manufac- turers as pretexts to rid Respondent of Delhagen. I am convinced such is the case as I do not believe Respond- ent established that the employee did anything contrary to its rules Thus, in contacting Dynamic Packaging and Goforth, Delhagen was neither attempting to purchase materials nor seeking pricing information, rather, he was requesting product information, which Jason Holmes, whom I credit in this regard, admitted employees were permitted to obtain. Further, I agree with the General Counsel that it would have been ludicrous for Delhagen to have acted, as he did, if he had been specifically warned by Baldwin a month earlier not to contact manu- facturers directly for any reason. However else Delha- gen may have struck me, he did not impress me as being stupid. Also, if Baldwin truly believed Delhagen had been seeking product pricing information, Respondent failed to adequately explain why salesmen Holmes and Brown, who supplied the manufacturers' telephone num- bers to the employee and were aware of his activities, were not likewise disciplined. In this regard, I found Baldwin's explanation, that he "didn't see any problem there" most incredible. Accordingly, based on the fore- going, and the record as a whole, I believe that Re- spondent's defense to the amended complaint allegations regarding Delhagen is pretextual and a mere sham52 and, in agreement with the General Counsel, find that Delha- gen was discharged because of his union activities and because he filed charges with CAL-OSHA against Re- spondent-violations of Section 8(a)(3) and (1) of the Act, respectively. 52 Regarding the content of the conversations between Delhagen and Baldwin subsequent to the former 's two telephone conversations and until his suspension , I profess that I have severe doubts about the honesty of the accounts of both individuals As stated above, I believe Delhagen knowingly violated Respondent's procedures for direct purchases from manufacturers in January, and his recollections of ensuing conversations with Baldwin reflect a type of coverup Likewise, in order to cover up his true motivation during their meetings, I believe Baldwin was not at all candid to Delhagen; however, I do think his version of what he said was the more accurate Thus, I conclude that what he said to Delhagen was self-serving, probative of nothing , and designed to disguise his actual motivation Finally, based on my credibility resolutions, I find no merit in, and shall recommend dismissal of, par 11(c) of the amended com- plaint PORT PLASTICS 3. The discharge interview There is no dispute that on March 1, 1982, as he had been instructed to do, Delhagen arrived at the Sunnyvale facility, accompanied by Ed Jones, in order to meet with Baldwin concerning his continued employment by Re- spondent and that the latter refused to permit Jones to attend the meeting. Regardless of what was said by the meeting participants, the record is uncontroverted that, prior to the meeting, Baldwin, however unlawfully moti- vated, reached a decision to terminate Delhagen and pre- pared and signed a discharge letter for the employee. In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Su- preme Court held that an employee has a Section 7 right to request union representation at an interview in which the employee reasonably believes that disciplinary action will result and that denial of such a request and continu- ation of the interview constitutes a violation of Section 8(a)(1) of the Act. Herein, there can be no doubt that Delhagen reasonably could foresee discipline as a result of the interview, and the record discloses that Baldwin conducted the interview after denying Delhagen's re- quest that Jones or other employees be permitted to attend. However, in Baton Rouge Water Works Co., 246 NLRB 995 (1980), the Board concluded that an employ- ee's Weingarten rights do not apply "at a meeting with his employer held solely for the purpose of informing the employee of, and acting upon, a previously made disci- plinary decision." Id. at 997. In this regard, the Board made clear that if the employer "engages in any conduct beyond merely informing the employee of a previously made disciplinary decision," the individual's Weingarten rights may apply Id. Concerning what was said at their meeting, I credit the version of Baldwin over that of Delhagen inasmuch as having already signed a discharge letter for the employee and obviously determined to fire him, Baldwin was not likely to have once again offered Delhagen an opportunity to explain his actions, as insist- ed on by the latter, prior to handing him the notice. Fur- ther, although Baldwin did inquire of Delhagen, after the latter finished reading the termination letter, if he had any questions about it, such clearly was technical in nature and not meant to "seek facts or evidence in sup- port of that action." Id. Accordingly, as I believe the meeting was solely for the purpose of informing Delha- gen of Baldwin's termination decision and nothing fur- ther was discussed, Delhagen's Section 7 rights were not violated by Baldwin's refusal to permit Jones to attend the meeting Therefore, I shall recommend that para- graph 6(b)(ii) of the amended complaint be dismissed. 4. The alleged failure to bargain in good faith Over the course of approximately a 2-month period, Respondent and the Union held five contract negotiating sessions during which the Union made an original pro- posal, Respondent made counterproposals, the Union, in turn, made counterproposals based on Respondent's pro- posals, and minor agreements were reached regarding the contract's preamble and term There is no evidence, nor any allegations, that Respondent's spokesmen lacked authority to conduct meaningful negotiations or that the representatives failed to meet at reasonable times or oth- 381 erwise delayed the bargaining. Rather, the amended complaint alleges that Respondent bargained in bad faith by rejecting the Union's access and union-security pro- posals without offering meaningful counterproposals, by proposing a 12-month wage freeze while, at the same time, proposing to continue its merit wage increase policy, and by exhibiting an overall intransigence and un- willingness to make meaningful proposals or counterpro- posals in order to avoid reaching agreement-conduct al- legedly violative of Section 8(a)(1) and (5) of the Act. In support, the General Counsel argues that Respondent's entire course of conduct, both away from and at the bar- gaining table, demonstrates that it was only willing "to go through the formalities of collective-bargaining." In particular, counsel points to the conduct, which I have previously found to constitute unfair labor practices; Re- spondent's contract proposals; and the Company's un- willingness to deviate from these. Assuming a contrary position, counsel for Respondent contends that bad faith may not be inferred from its contract proposals, that these were initial contract negotiations, that Respondent merely engaged in hard , tough bargaining and that, most importantly, the Act does not compel an employer to agree to a union's contract proposals. Much has been written with regard to what constitutes good-faith bargaining and whether employers or labor organizations have breached their respective duties to engage in such. The genesis for any discussion of this subject is Section 8(d) of the Act which states: For the purposes of this section, to bargain col- lectively is the performance of the mutual obliga- tion of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negoti- ation of an agreement or any question arising there- under, and the execution of a written contract in- corporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. There seems to be universal agreement about what the obligation to bargain in good faith entails. It means that a party must "enter into discussion with an open and fair mind and a sincere purpose to find a basis of agreement." NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960). Although the obligation does not require reaching an agreement, a party cannot exhibit the "mere pretense at negotiations with a completely closed mind and without [a] spirit of cooperation." NLRB v. Wonder State Mfg. Co, 344 F.2d 210, 215 (8th Cir. 1965). What seems to engender the most confusion and controversy in this area are the factors which may or may not be con- sidered in determining whether a party had truly bar- gained with an open mind or had engaged in bad-faith surface bargaining, as is essentially alleged by the Gener- al Counsel herein. Recently the Board had occasion to again articulate exactly what factors it examines in analyzing a party's motivation during bargaining-"particularly in the con- 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD text of a (surface bargaining) allegation, we look to whether the parties' conduct evidences a real desire to reach an agreement-a determination made by examina- tion of the record as a whole, including the course of ne- gotiations as well as contract proposals." Chevron Chemi- cal Co., 261 NLRB 44 (1982). With regard to the course of negotiations, one may consider the frequency and length of negotiations; whether a party has authority to engage in meaningful bargaining ; any unnecessary or un- reasonable delay; and of course a party's entire range of conduct at the bargaining table. NLRB v. Cable Vision, 660 F.2d 1 (1st Cir. 1981). The matter of the contract proposals themselves as an indicia of bad faith has been an issue of concern to the Ninth Circuit Court of Ap- peals. Thus, the court will not base a finding of bad-faith bargaining solely on an analysis of a party's contract pro- posals. Seattle-First National Bank v. NLRB, 638 F.2d 1221, 1225 (9th Cir. 1981).53 However, the court will find that "proposal content supports an inference of intent to frustrate agreement where . . . the entire spec- trum of proposals put forward by a party is so consist- ently and predictably unpalatable to the other party that the proposer should know agreement is impossible." NLRB v. Mar-Len Carpets, 659 F.2d 995, 999 (9th Cir. 1981); NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343, 1348 (9th Cir. 1978). Finally, one may consider conduct not directly concerned with the bargaining ("away from the table") as bearing on a party's good faith while engaged in bargaining. Such conduct may in- volve that arising to the level of unfair labor practices or merely that explaining otherwise ambiguous actions at the bargaining table. Clearwater Finishing Co., 254 NLRB 1168, 1172 (1981); Carbonex Coal Co., 248 NLRB 779, 799 (1980); Safeway Trails, 233 NLRB 1078, 1082 (1977). Cf. Baldwin County Electric Membership Corp., 145 NLRB 1316, 1318 (1964). In my view, the single most significant fact bearing on the issue of Respondent's alleged bad faith while bargain- ing is Ken Pine's warning to the warehouse employees during the preelection meeting of November 9, 1981, to the effect that he would not give those "bastards"- clearly referring to the Union-anything during contract negotiations. I have previously concluded that this state- ment can only properly be viewed as constituting noth- ing less than an anticipatory refusal to bargain and, as such, colors and explains Respondent's motivation and conduct at the bargaining table and the sincerity and se- riousness of its contract proposals. With regard to its mo- tivation on entering bargaining with the Union, viewed against the above comment made before the Union was even selected by the warehouse employees as their bar- gaining representative and in light of the serious unfair labor practices committed immediately after the election, Respondent, I believe, commenced negotiations with an absolutely closed mind, determined to make agreement with the Union impossible. Thus, its bargaining proposals clearly reflect the attitude of Ken Pine expressed above. Not merely tough or hard positions, analysis of these re- veals that Respondent sought to ensure that the Union sa Rather, bad faith can be determined "only upon consideration of the 'totality of the circumstances "' Seattle-First National Bank, supra at 1225 would have no voice in the establishment or maintenance of the warehouse employees' terms and conditions of em- ployment, thereby effectively emasculating and rendering as nugatory the Union's role as the employees' bargain- ing representative. For example, Respondent's proposed management-rights clause (four pages in detailed length) would retain for the Company absolute authority and control over establishing hours of work, altering or re- ducing job classifications, instituting technological changes, subcontracting out unit work, and abolishing all inefficient or "unnecessary" past practices on its own whim. Also, the proposed grievance procedure would have excluded participation by the Union, Respondent's seniority provision would exclude the Union from any role in layoff decisions; a section of the proposal on wages would foreclose the Union from filing a griev- ance; challenging a merit raise review; and a provision entitled "no contract bar" would force the Union to waive its rights under the Board's contract-bar rules. Not only does the insistence on such proposals demonstrate Respondent's bad faith (San Isabel Electric Services, 225 NLRB 1073 (1976)) but also these proposals are a direct reflection of Pine's intention to give the Union nothing during negotiations. Finally, nothing, of course, more clearly exemplifies this latter attitude than the proposal of a 12-month wage and benefits freeze. Viewed in the light of the foregoing, Respondent's economic "offer" is seen for what it actually represented-not the good-faith "opening gambit" disingenuously asserted by Pace and Pine but rather the fulfillment of what Pine had threat- ened, indeed prophesized, 2 months earlier. I further be- lieve Pace, with his experience in the field, knew full well that this "gambit" would stifle negotiations, causing the Union to believe that, no matter how much it com- promised, Respondent would not likewise react. Certain- ly, nothing that Pine said at the fourth bargaining session when he announced the proposal could have caused the Union representatives to believe otherwise. While not, as alleged in the amended compliant, arising to the level of an unfair labor practice, the wage freeze proposal must be viewed as indicative of Respondent's attitude toward the contract negotiations. It is true that, as argued by Respondent's counsel, the Union assumed adamant positions on several contract provisions, such as a union-security clause, union stew- ard, and union access; however, during the course of the five bargaining session, the Union demonstrated flexibil- ity in several important areas; while Respondent was un- yielding on all points except two minor ones. Thus, Brown, at the third bargaining session, presented lan- guage counterproposals in the areas of grievance proce- dure, arbitration, health and welfare, hiring new employ- ees, injured employees, no strike-no lockout, discharged employees, union access, and management rights. More- over, at the final session, Ed Jones offered to accept a subcontracting provision in exchange for a guaranteed hours-of-work clause. Each of the foregoing represents not only a concession by the Union but also is acquies- cence of language offered by Respondent. In contrast, neither Pine nor Pace, during the five negotiating ses- sions, made a concession or offered to compromise on PORT PLASTICS any major point. In this regard, although I do not credit Jones that Pace, at the last meeting, said anything resem- bling, "Ed, you're selling we're not buying,"54 the Tat- ter's attitude during it reflected such an approach. Thus, noting that the Union had specifically requested this ses- sion after abruptly walking out of the previous meeting, that Jones indicated at the outset that he was there to bargain, that Jones offered to compromise over the issues of subcontracting unit work and guaranteed hours of work, and that several potential contract clauses were discussed, Pace offered not a hint of movement (either toward accepting a union position or modifying one of Respondent's and adopted, what he termed, a "petulant" attitude . The significance of his attitude at this last ses- sion, with regard to revealing Respondent's overall bad- faith approach to bargaining, cannot be overemphasized. For having, in effect, brought the negotiations to a halt by his suggested wage freeze tactic at the previous ses- sion, Pace was in a position of, at least , advancing the negotiations in some manner . Instead, he adopted an ap- proach of utter intransigence. Respondent's attorney argues correctly that the Act does not compel conces- sion and claims that the General Counsel seems to be ob- jecting to the fact that it did not make enough conces- sions to suit the Union. The issue, however, is not the concessions or lack thereof; rather, it is whether the con- duct of Respondent made bargaining futile. Warner Corp., 198 NLRB 726, 729 (1972). Herein, given Pine's anticipatory refusal to bargain prior to being required to do so, Respondent's blatant unfair labor practices imme- diately after the NLRB election, the content of Respond- ent's contract proposals as reflecting Pine's earlier warn- ing, and the uncompromising position of Pace at the bar- gaining table , one may properly conclude that Respond- ent "went through the elaborate motions of bargaining . . . with no sincere desire of reaching an agreement." Id. at 730. Indeed, one may further conclude that Re- spondent had absolutely no desire or interest in modify- ing any of its proposals and had adopted a "take it or leave it" attitude-conduct condemned by the Supreme Court. NLRB v. Insurance Agents, 361 U.S. 477, 486 (1960). Countering, Respondent's attorney argues that bargain- ing between it and the Union was in an early stage and that, therefore, it could not be faulted for not, as yet, putting its "best foot forward." Such a contention is founded on the assumption that it is impossible to reach a determination of bad-faith bargaining after just five nego- tiating sessions. However, the Board did just that in American Parts System, 232 NLRB 41 (1977), a case strik- ingly similar to the one herein involved. Therein, the parties held five bargaining sessions on an initial contract and, as herein, the union's contract demands included a "non negotiable" union-security provision, the company's proposals, including a broad, restrictive management rights provision, were of a type not having "the slightest chance of acceptance" by the union but from which the company negotiator would not budge; and the employer 54 Witness Mora, who corroborated Pace's alleged comments regard- ing Delhagen at this meeting , did not corroborate Jones concerning the above comment at the fifth session I find this highly significant 383 proposed no increase in wages or fringe benefits. View- ing nothing but the five negotiating sessions themselves, the Board concluded that the employer's proposals rep- resented nothing more than a "stalling tactic" designed to inhibit rather than enhance discussions and that, re- garding bargaining tactics, "although the union expressed a willingness to compromise, management blocked any effort to get it to move from its initial proposal." Id. at 47-48. Accordingly, the Board determined that the com- pany engaged in bad-faith surface bargaining in violation of Section 8(a)(1) and (5) of the Act, and it is clear that the limited duration of the bargaining was not an inhibit- ing factor in the result. From this, one can only conclude that what is crucial to a determination of good- or bad- faith bargaining is the quality of bargaining and not the duration of same . Based on the foregoing, and the record as a whole, I find that Respondent entered into bargain- ing with a fixed intention not to give the Union anything and that its contract proposals and utterly inflexible posi- tions at the bargaining table are reflective of this and a closed mind. As in American Parts System, supra, such constitutes bad-faith surface bargaining55 in violation of Section 8(a)(1) and (5) of the Act. Mar-Len Carpets, supra.56 5. The strike There is no dispute that since May 3 , 1982, the ware- house employees have been engaged in a strike against Respondent . The record establishes that sometime in April 1982 the employees met with Union Representa- tives Jones and Brown to discuss the possibility and po- tential ramifications of such action and that among the subjects discussed were the state of contract negotiations and Respondent's conduct at the bargaining table. The record further establishes that Respondent 's bargaining conduct became a precipitating reason for the employees' eventual decision to strike. I have previously concluded that Respondent bargained in bad faith in violation of Section 8(a)(1) and (5) of the Act . In order for a strike to be deemed an unfair labor practice strike, it must "in whole or in part" be based on an employer's unfair labor practices and such must be more than a mere source of dissatisfaction. Citizens National Bank of Wilmer, 245 NLRB 389, 391 (1979); Tufts Bros Inc., supra at 811. Such is clearly the case herein , and I find that the em- ployees' strike, from its inception , has been to protest Respondent's unfair labor practices, an unfair labor prac- tice strike. ss Counsel for Respondent relies heavily on the Board's decision in Unoco Apparel, 208 NLRB 601 (1974), as support for his contention that Respondent merely engaged in hard bargaining I find that case inappo- site Thus, the Board noted that the employer maintained an intransigent position but excused the conduct as the union's negotiator "would not make any concessions for which it could reasonably expect to receive a quid pro quo from the Respondent " Id Herein, not only did the Union modify its own positions but even accepted some of Respondent's De- spite such movement, Respondent did not reciprocate, thereby revealing its unlawful attitude toward bargaining 56 As with the wage freeze proposal, I see 'nothing inherently unlawful in Respondent 's rejection of the Union's proposals on access and a union- security clause 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All warehouse employees, including cutters, ship- pers, and receiving clerks, employed by Respondent at its Sunnyvale, California facility, excluding all other em- ployees, office clerical employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 10, 1981, the Union has been, and is now, the exclusive representative of employees in the above appropriate unit for purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to bargain in good faith with the Union as the collective-bargaining representative of its employees in the appropriate unit described above with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. By refusing to recognize and meet with Robert Del- hagen as the duly designated representative of its em- ployees in the appropriate unit described above for the purpose of resolving grievances, Respondent engaged in unfair labor practices violative of Section 8(a)(1) and (5) of the Act. 7. By unilaterally, without bargaining with the Union as the collective-bargaining representative of its employ- ees in the appropriate unit described above, implement- ing a change in its personal telephone procedures in re- taliation for its employees' selection of the Union as their collective-bargaining representative, Respondent engaged in conduct violative of Section 8(a)(1), (3), and (5) of the Act. 8. By discharging employee Robert Delhagen based on his activities as the employees' duly designated union steward and on his contacting CAL-OSHA regarding perceived safety violations, Respondent engaged in con- duct violative of Section 8(a)(3) and (1) of the Act, re- spectively. 9. By telling employees that Respondent would never give anything to the Union during contract negotiations; by interrogating employees regarding their feelings toward the Union; and by warning employees that there would be no more one-on-one contacts with management as a result of union representation, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 10. Respondent engaged in no other unfair labor prac- tices. REMEDY Having found that Respondent engaged in acts and conduct violative of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative actions designed to efectuate the policies of the Act. I have found that Respondent failed and refused to bargain in good faith with the Union. As a remedy, I shall recom- mend that Respondent be ordered, on request, to resume bargaining with the Union and to do so in good faith and in the event that an understanding is reached, embody such understanding in a signed agreement. Further, in order to ensure that employees will be accorded the statutorily prescribed services of their selected bargain- ing agent for the period provided by law, I recommend that the initial year of certification be deemed to begin on the date that Respondent commences to bargain in good faith with the Union. K Mart Corp., 242 NLRB 855, 877 (1979), enfd. 626 F.2d 704 (9th Cir. 1980); Amer- ican Parts System, supra at 48; Mar-Jac Poultry Co., 136 NLRB 785 (1962). Next, I have found that Respondent unilaterally implemented a change in its telephone policy. Accordingly, I shall recommend that Respondent be ordered to rescind its order that warehouse employees no longer may speak on incoming personal telephone calls. With regard to remedying the unlawful discharge of Robert Delhagen, as he was offered reinstatement to his former position on June 1, 1982, I shall recommend that Respondent be ordered to make him whole for any loss of earnings he may have suffered from the date of his discharge, March 1, 1982, until June 1, with backpay to be computed in the manner set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest as pre- scribed in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). Also, I shall recommend that Respondent be ordered to remove from its records and files any reference to the discharge of Delhagen. Finally, I shall recommend that Respondent be ordered to post a notice, setting forth its obligations herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed57 ORDER The Respondent, Port Plastics, Inc., Sunnyvale, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Bargaining in bad faith with Glaziers, Architectural Metal and Glass Workers Local No. 1621, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All warehouse employees, including cutters, ship- pers, and receiving clerks employed at the Sunny- vale, California facility; excluding all other employ- ees, officer clerical employees, guards, and supervi- sors as defined by the Act. (b) Failing and refusing to meet with the designated representatives of employees in the aforementioned unit for the purpose of resolving grievances. 57 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses PORT PLASTICS 385 (c) Unilaterally implementing changes in its policy re- garding the handling of incoming personal telephone calls for employees in the aforementioned unit. (d) Terminating employees because they engaged in union or other protected concerted activities. (e) Telling employees that it will not offer the above Union anything during contract negotiations. (f) Interrogating employees regarding their feelings toward the above Union. (g) Warning employees that there would be no more one-on-one contact with management as a result of union representation. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) On request, bargain collectively in good faith with Glaziers, Architectural Metal and Glass Workers Local No. 1621 as the exclusive bargaining representative of employees in the appropriate unit described above con- cerning rates of pay, wages, hours of work, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. The certifica- tion year shall extend 1 year from the date such new ne- gotiations begin (b) Rescind all changes made in the the policy regard- ing the handling of employee incoming personal tele- phone calls (c) Make employee Robert Delhagen whole for any loss of wages suffered by reason of his discharge in the manner described in the remedy section , with interest. (d) Remove from its records and files any and all ref- erences to the discharge of Robert Delhagen and notify him, in writing, that such was done and that evidence of his unlawful discharge will not be used as a basis for future action against him. (e) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its place of business in Sunnyvale , Califor- nia, copies of the attached notice marked "Appendix."18 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Re- spondent's authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that insofar as the amended complaint alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act by unilaterally changing its overtime practice , reiterating changes in its telephone policy, and assigning employees to more arduous work assignments; Section 8(a)(1) and (5) of the Act by reject- ing the Union's proposals on access and union security without offering counterproposals and by proposing a 12-month wage freeze while continuing a merit raise policy ; and Section 8(a)(1) of the Act by denying Delha- gen union representation at his discharge interview, the complaint is dismissed 58 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 "