Prc Recording Co.

PRC RECORDING CO. Richmond Recording Corporation d/b/a PRC Re- cording Company and International Brother. hood of Electrical Workers, Local Union No. 2043, AFL-CIO. Cases 25-CA-14830 and 25- CA-14508 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 18 November 1983 Administrative Law Judge Robert W. Leiner issued the attached deci- sion. The Respondent, the General Counsel, and the Charging Party filed exceptions with support- ing briefs and answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order as modified.3 ' The Respondent, the General Counsel, and the Charging Party have excepted to some of the judge's credibility findings. The Board's estab- lished 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 In the absence of exceptions, we adopt the judge's finding that a guard's threat to hang an employee on a pole did not violate Sec. 8(a)(1) We agree with the judge that the Respondent's statement that it would retract its last contract offer and substitute a less desirable one if the em- ployees rejected the offer and struck was not an "economic forecast." Rather, it was a threat of retaliation if employees exercised their right to strike Our dissenting colleague makes unwarranted assumptions as to the effect of a strike on the Respondent and as to the motivation behind the Respondent's bargaining concessions In finding a violation of Sec 8(a)(1), the judge applied the correct test and properly concluded that the Respondent's statement would reasonably tend to interfere with the free exercise of employee rights The judge found, and the dissent concedes , that the Respondent unlaw- fully refused to immediately reinstate the unfair labor practice strikers and that their backpay commences 28 June 1982, the date of the Union's first unconditional offer to return to work The dissent, however, con- trary to the judge, would find that the Respondent's subsequent offers of reinstatement to the unfair labor practice strikers were valid , and would toll backpay as of the date the employees rejected such offers We find no merit in this contention The judge properly concluded that the Respondent's offers were in- valid because they contemplated reemployment to terms and conditions of employment unlawfully imposed The judge correctly relied on Brooks, Inc, 228 NLRB 1365, 1368 fn 18 (1977), for the above proposi- tion, and the dissent's attempt to distinguish Brooks is unpersuasive Be- cause the Respondent's offers were invalid, they do not toll backpay Backpay will cease upon the Respondent 's offering employees reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions The dissent's claim that the Respondent is unable to remedy its own misconduct and offer employees reinstatement to their former positions raises a question more suitable for resolution at the com- pliance stage of this proceeding 3 Member Dennis would adopt the judge's decision in all respects 615 The Respondent discharged 33 unfair labor prac- tice strikers for alleged strike-related misconduct, but later rescinded 9 of the discharges. Of the 24 remaining discharges, the judge found 21 to be jus- tified because the strikers engaged in misconduct sufficiently serious to put them beyond the protec- tion of the Act, but he found the discharges of 3 strikers, Pauline Smith, Roger Block, and Glenna Phillips, to be unlawful. Since the judge rendered the decision, the Board revised the standard for determining when strike misconduct justifies denying a striker reinstatement. In Clear Pine Mouldings, 268 NLRB 1044 (1984), the Board held that henceforth it would apply the test the United States Court of Appeals for the Third Circuit set forth in NLRB v. W. C. McQuaide, Inc.4 and find that an employer is justi- fied in not reinstating a striker whose "misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate em- ployees in the exercise of rights protected under the Act."5 Applying that test in this case, we agree with the judge's finding that the 21 named strikers are not entitled to reinstatement.6 We disagree, however, with his finding that the misconduct of Pauline Smith, Roger Block, and Glenna Phillips did not justify their discharges. Pauline Smith and Roger Block The judge found that Plant Manager Douglas and his secretary observed Smith and Block throw- ing or dropping nails on the main driveway. Smith admitted picking up nails near the pickets' cars and throwing them on the main driveway on one occa- sion during which she saw the Respondent 's guard picking up nails. She said to him, "If you guys have a right to throw them nails down here for us to pick up, we have the right to throw them back at you, right?" The guard replied, "All right," and Smith threw the nails. The judge rejected Block's claim of absence from the picket line and found that Block also threw nails. The judge, noting that the Respondent 's guard appeared to acquiesce in the retaliation, found that Smith's and Block's nail throwing was justified and that they were entitled to reinstatement because they were provoked by finding nails under the pickets' cars. We disagree. Even though, as the 4 552 F 2d 519 (3d Cir 1977), denying enf in part to 220 NLRB 593 (1975) 6 Id at 528 (quoting Operating Engineers Local 542 v NLRB, 328 F 2d 850, 852-853 (3d Or 1964), cert denied 379 U S 826) 6 In agreeing with the judge that the Respondent acted lawfully in dis- charging Mary Sue Couch, we find it unnecessary to pass on the judge's conclusions concerning her involvement in the incident with Broughton's car, and we rely only on his finding that Couch threw objects at cars on two occasions 280 NLRB No. 77 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD judge found, the Respondent's guards and nonstrik- ing personnel threw nails beside the pickets' cars, this is inadequate provocation, in our view, for de- liberate vandalism and violence which carries the potential for dangerous driving conditions and seri- ous harm to persons and property. It was never more true than in this instance that "two wrongs do not make a right." We find that Smith's and Block's conduct clearly tended to coerce or intimi- date nonstriking employees in the exercise of their rights under the Act, and that Smith and Block for- feited their right to reinstatement and backpay.7 Glenna Phillips The Respondent discharged Phillips for hitting a car with a club. Sheila Broughton, the daughter of a supervisor, had turned her car into the main en- trance. From 125 to 150 pickets were gathered in the vicinity. As Broughton's car slowed and stopped, about a dozen pickets approached the car. Some of them, including Phillips, were carrying baseball-bat-sized sticks. Phillips stood in front of the car on the driver's side. Broughton was so frightened by the confrontation that her foot slipped off the brake, allowing the car to lurch for- ward and hit Phillips. At that point Phillips hit the hood of the car with a "good whack" from her stick. As the car propelled her off to the driver's side, she hit the car again with the stick. At this point many of the other pickets beat on the car as well. The judge concluded that Phillips' conduct was excusable and that she was entitled to reinstate- ment. He reasoned that her conduct was not pre- meditated, but rather that the initial clubbing of Broughton's car "was an instinctive warding off of the car and a reflexive reaction to being struck," and that her second clubbing of the car "was also a retaliatory act for being assaulted by the car." We disgaree. In our opinion the conduct of Phillips and the other pickets in approaching Broughton's car with clubs in their hands is clearly misconduct that would reasonably tend to intimidate an employee under the existing circumstances. The conduct of the pickets herein went beyond merely blocking of Broughton's ingress. They surrounded her while many of them were carrying clubs. In addition they beat on the car with there clubs after it acci- dentially moved forward. Under all the circum- stances, we find that the Respondent's discharge of Phillips did not violate the Act. ° Roure Betrand Dupont, Inc, 271 NLRB 443 (1984) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Richmond Recording Corporation, d/b/a PRC Recording Company, Richmond, Indi- ana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraphs 2(d) and (e). "(d) Offer to Marlene Anderson, Sarah Drook, Catherine Hatfield, Bertha Hedricks, Sherry Ritch- ie, Pamela Rogers, Elizabeth Willoughby, Sophie Van Winkle, and Florence Watson, and to all other of its employees listed on attached `Appendix B,' except those found discharged for cause herein, im- mediate and unconditional reinstatement to their former positions of employment as they existed prior to 5 May, 1982 or if such positions no longer exist, to substantially equivalent positions discharg- ing, if necessary, any replacements, without preju- dice to their seniority or any other rights and privi- leges, and make each of them whole for any loss of wages suffered by reason of the Respondent's un- lawful conduct against them as provided in his de- cision and in the section entitled 'The Remedy.' "(e) Expunge from its files any reference to the discharges of Marlene Anderson, Sarah Drook, Catherine Hatfield, Bertha Hedricks, Sherry Ritch- ie, Pamela Rogers, Elizabeth Willoughby, Sophie Van Winkle, and Florence Watson, on and after 13 May 1982, and notify each of them in writing that this has been done and that evidence of the unlaw- ful discharge will not be used as a basis for future personnel actions against them." 2. Substitute the attached Appendices A and B for those of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. I agree with my colleagues' finding that the Re- spondent violated Section 8(a)(5) and (1) by making unilateral changes in terms and conditions of employment between 5 and I1 May 19821 there- i In finding the absence of impasse at the time of these changes, I rely particularly on the credited evidence that, on the morning of 5 May, the Respondent's negotiator Marcus told union negotiator Bucella that he was either ready or prepared to negotiate, as a result of which the Re- spondent agreed to allow the Union an opportunity to present its propos- al after a recess, but that before the Union was able to do so the Re- spondent made major changes in the employee classification system and in so doing destroyed the prior classification system This initial unilateral change was instrumental in causing the employees not to ratify a subse- quent agreement reached between the Respondent and the Union In this circumstance the employees' rejection of the contract provides no basis for the Respondent to claim impasse in justification for its further unilat- eral changes implemented 11 May PRC RECORDING CO by causing employees to engage in an unfair labor practice strike. I also agree with the dismissal of al- legations that the Respondent violated Section 8(a)(3) and (1) by discharging for strike-related mis- conduct employees Pauline Smith, Roger Block, and Glenna Phillips, 2 and that its discharge of 21 other employees for strike-related misconduct was not unlawful. I disagree with my colleagues' con- clusions with respect to two aspects of this case: the finding that the Respondent violated Section 8(a)(1) by threatening to make regressive bargain- ing proposals should the employees strike and my colleagues' agreement with the judge that the Re- spondent's backpay liability for the unfair labor practice strikers should not be tolled for the period after the Respondent offered them reinstatement to the jobs they held at the time they commenced their strike.3 The judge in section III,G of his decision found that the Respondent violated Section 8(a)(1) as a result of a threat by its negotiator Marcus that, should the employees reject the Respondent's final offer and engage in a strike, the Respondent's ne- gotiating position would return to its most regres- sive offer made at the start of negotiations, thereby rescinding concessions made during the course of negotiations. The judge reasoned that this threat unlawfully restrained and coerced the employees from exercising their statutory right to strike. The cases cited by the judge to support this conclusion are inapplicable. Airport Parking Management, 264 NLRB 5 (1982), involved an unlawful threat to dis- charge employees should they participate in a strike, and TRW-United Greenfield Division v. NLRB, 637 F.2d 410 (5th Cir. 1981), involved an unlawful threat that the employer would adopt a regressive bargaining posture designed to force a reduction of existing benefits as a penalty for a union victory in a representation election. Neither of these cases is relevant to the present situation where the Respondent had made concessions during bargaining to reach an accord on the terms of a voluntarily negotiated collective-bargaining agreement, but faced the prospect that the employ- ees would reject the negotiated agreement and at- tempt to force further concessions from the Re- spondent by resorting to a strike. Such a strike, an economic tactic clearly intended to disrupt the Re- spondent's operations, would have severe adverse consequences for the Respondent and it appears that the Respondent's bargaining concessions may 2 In the absence of exceptions I adopt the finding that the Respondent violated Sec 8(a)(3) and (1) by discharging nine named strikers 3 In agreeing with the award of backpay to unlawfully discharged strikers, I rely on the evidence that an offer to return to work has been made on their behalf on 28 June 1982 prior to their discharge on or after 12 July 1982 617 well have been motivated by a desire to avoid such disruption. Were a strike to occur, there is no pro- hibition against the Respondent modifying its pro- posals in response to these changed economic cir- cumstances. The Respondent's threat to implement a countermeasure to such a strike situation did not unlawfully restrain or coerce employees. Regarding the award of backpay to unreinstated unfair labor practice strikers, I agree with the ma- jority's adoption of the judge's determination in section III,H,1 of his decision that the backpay period for these strikers discriminatorily denied re- instatement begins on the date of their uncondition- al offer to return to work. Nevertheless, I disagree with their adoption of the judge's finding that the Respondent's subsequent offers of reinstatement made to strikers to return to positions held immedi- ately prior to the strike, which in most instances were rejected, did not serve to toll the Respond- ent's backpay liability. The case cited by the judge, Brooks, Inc., 228 NLRB 1365 (1977), is not dispositive because Brooks involved a respondent's offer of reinstate- ment to strikers based on terms of employment dif- ferent from that held by the strikers at the time they went on strike. This is distinct from the situa- tion involved in this case where the terms of the offer of reinstatement were identical to those held by the employees when they initially struck. Al- though, as stated above, I agree with my col- leagues' finding that the terms of employment ef- fective immediately prior to the strike were based on certain unlawful unilateral modifications, no party has raised the contention that these terms of employment were so onerous to justify an employ- ee withholding services on the basis of a construc- tive discharge. Accordingly, the backpay implica- tions for the Respondent who initially offered em- ployees jobs on this basis on 11 May, as well as after their offer to return to work, should be the same. In either setting, I conclude that the employ- ees' refusal to work under these conditions amount- ed to strike activity for which they are owed no additional backpay.4 It is clear from the record that the Respondent is now unable, due to its irrev- ocable destruction of the employees' classification system, to offer the strikers reinstatement on the basis of terms of employment fully identical to that preexisting the unlawful unilateral changes. The backpay remedy suggested by the judge apparently would have no termination date given that the strikers would be able to continue to reject the Re- " Although I conclude that backpay is tolled during the period after the employee rejects such an offer of reinstatement , the employee retains his status as a striker Cf Southwestern Pipe, Inc, 179 NLRB 364 (1969) 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's reinstatement offers with no tolling of the Respondent's backpay obligations. I cannot agree with this result. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse, upon request, to bargain collectively with International Brother- hood of Electrical Workers, Local Union No. 2043, AFL-CIO as the representative of our employees in the two following appropriate units described below, by unilaterally implementing proposed job combinations, wages, hours, and other terms and conditions of employment, without bargaining to bona fide impasse or gain the Union's consent: (1) All production and maintenance employees at all of the Employer's Richmond, Indiana fa- cilities; BUT EXCLUDING all watchmen, Printing Department employees, office clerical employees, all guards, professional employees, all employees included in the appropriate unit of employees described below herein in sub- paragraph (2), and all supervisors as defined in the Act. (2) All Tape Division production and mainte- nance employees working at all of the Em- ployer's Richmond, Indiana facilities BUT EX- CLUDING all office clerical employees, guards, professional employees , all employees included in that appropriate unit described above herein in sub-paragraph (1), and all su- pervisors as defined in the Act. WE WILL NOT threaten our employees in the above-described units that, in the event they reject our final contract offer and engage in a strike, we will withdraw our final contract offer and offer only a less desirable substitute therefor. WE WILL NOT discharge striking employees who do not engage in disqualifying strike misconduct. WE WILL NOT fail or refuse to reinstate our unfair labor practice striking employees immediate- ly upon their unconditional offer to return to work, discharging, if necessary, any replacements. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed by Section 7 of the Act. WE WILL, on request, bargain collectively with the Union as the exclusive representative of our employees in the above-described appropriate units and, if understandings are reached, embody any such understandings in a signed agreement or agreements. WE WILL restore and place in effect retroactive to 30 April and 1 May 1982, respectively, all the wages, hours, rates of pay, and all other terms and conditions of employment provided by and estab- lished in the collective-bargaining agreements with the Union covering the employees in the appropri- ate units above-described, which agreements ex- pired, respectively, on 30 April and 1 May 1982, until such time as the parties to these agreements bargain to good-faith impasse, execute new collec- tive agreements, or the Union refuses to bargain; and WE WILL make whole all employees, for the period 6 through 12 May 1982, who, but for our unlawful implementation of combined jobs, would have been employed under the terms of the expired agreements. WE WILL make such contributions regarding mandatory subjects of bargaining to the pension funds, group insurance policies, and such other payments and contributions to the Union and to our employees included in the above-described units to whom contributions and payments were previously made, or should have been made, had we not ceased to comply with the terms of the above-described expired collective-bargaining agreements, and make the same contributions and payments of wages, and other benefits, to employ- ees performing work in the aforesaid appropriate units hired on and after 11 May 1982, except that no remissions of union dues or fees shall be made on behalf of employees who have not provided us with written authorizations. WE WILL offer to Marlene Anderson, Sarah Drook, Catherine Hatfield, Bertha Hedrick, Sherry Ritchie, Pamela Rogers, Elizabeth Willoughby, Sophie Van Winkle, Florence Watson, and all of our unfair labor practice striking employees, listed on Appendix B, but excluding those employees found discharged for cause by us, immediate and unconditional reinstatement to their former posi- tions or, if they no longer exist, to substantially equivalent positions of employment, discharging, if necessary any of our replacement employees, with- out prejudice to their seniority or other rights and privileges, and WE WILL make each of them whole, plus interest, for any loss of wages suffered by reason of our unlawful conduct against them. WE WILL expunge from our files any reference to the discharges of Marlene Anderson, Sarah Drook, Catherine Hatfield, Bertha Hedrick, Sherry PRC RECORDING CO. Ritchie, Pamela Rogers, Elizabeth Willoughby, Sophie Van Winkle, and Florence Watson, which references occur on or after 13 May 1982, and notify each of them in writing, that this has been done and that evidence of the unlawful discharge will not be used as a basis of future personnel ac- tions against them. RICHMOND RECORDING CORPORA- TION D/B/A PRC RECORDING COM- PANY APPENDIX B Geneva Jones Peggy Armstrong Mary M. Wilmoth Mayme Spurgeon Nellie Russell Lena Jordan D. J. Chasteen Anna M. Hofer Anna P. Isaacs Tron F. Bailey Willa J. Berry Margaret George J. R. Whitehead Lillian Sparks Calla Mae York G. V. Newton Dessie Fox Jane Baker Renus Doulen Richard Doulen James F. Capps Doris Wise David Mayse Mavis Isaacs Pauline Smith Alene Begley J. McFarland Ruby L. Ward Earsley Herron E. Robinson Alma Ward O. L. Whitehead Mildred Baldwin S. E. Vanwinkle Larry L. Carr Virginia Foust Bertha Baker Mildred Rayburn Joan G. Scott Mary G. Vaughn Marcella Cates M. F. Anderson Inda Wilson Larry D. Reimer M. A. Warren Beulah Alexander Ellen Lynch Lester R. Judy Jerome Kircher Phyllis J. Tyra Rex Waggoner Ethel Anderson M. D. Armstrong Sharon Young M. F. Williams Billy Williams B. A. Stevens Glenna F. Gibbs Lillie Hogg Ethel Greenway P. Mayberry Mary Spears Berta Walters Nancy L. Shelley G. Holsapple H. Meinerding Denzil George Ruth V. Uhl Barry Routzahn Keith McDivitt Pamela Rogers Faye Morris Denver Abner Michael McClain Betty R. Harrison Freda Willis Dick Lathrop M. Louise Mobley Stanley Samuels Rose Mary Loper Theresa Mercer Marilyn Bennett Carolyn F. Vickers Barbara J. Hasson Helen R. Myers John Gross Juanita Rogers Delores Smith L. V. Kirkland Jerry D. Engle B. E. Hedrick Alice K. Ladd Eugene Schuler Glenna Phillips C. Hatfield Sarah Shafer Barbara Lamb Marie Ramsey Joyce N. Tipton W. Estridge E. C. Willoughby J. E. Herbert Zinna Hiatt Hurley A. Berry Loretta Pennycuff Pat Parks Opal Rose S. E. Parker Sarah Anderson Sarah M. Gray D. Shipley Susan Verpooten Pauline Roberts M. L. Gibson Lula M. Jones T. L. Arthur Sherry L. Ritchie Corena J. Gomez Roberta Blair Hazel Gabbard Martha Sweet Della M. Quick Johnny Jones R. Puterbaugh Howard Stanley Ruby Alsip Lila L. Patton L. Dungan M. Earlywine Anna F. Allen Wathalean Yarnelli Lela Brock C. C. Handley M. Johnson J. Allen Gladys Brock M. B. Johnson Jo Ann Shaw Wilma Parks Dolly Herbert R. L. Langdon Mary J. Gause Elnora Lakes Cleda Hubbard Sue Cope Brenda Christian Verna Tharp Sandra L. Routzhan Leona Sherrow Lucille Frazier Mary Michaels Brenda Parks Bonnie Jean Philbeck Kay Petty Virginia Darkis Felani Jones Sandra Brown Cattie Brown Pat Ford Marilyn Troutwine Adalene Klein Sarah Drook Joyce Hammer Maggie Hammer Frances J. Davisson Kathy Jefferies Dorothy Riley Nancy Hollingsworth Katherine Brown Carmie Johnson Roberta Hilling Ruth K. Howell Marsha A. Fellers Barbara Washington Russell L. Keller Brenda Rom Louise Miner Phyllis Ann Watson Charlotte Jones Judy Ann Barnett Helen M . Napier James Williams Louise Wilson Evelyn R. Hobbs Judith A. Hubble Wanda Carpenter Bonnie J. Dailey Penny Kellam Karen L. Carpenter Vickie C. Williams Ann McNally Philip Hilling Ernestine Blue Shirley S. Loudy Phyllis J. Darden Ruth Shinliver Sandra Goble Mary L. Lammott Dorothy K. Pierce Evelyn Reed 619 620 Margie Roberts Marcia Shafer Jane Bunker Barbara Craycraft B. L. Mullins Betty Ketron Charles Blair J. B. Doolin W. DeFriece M. L. Moore I. M. Estridge C. L. Lamberson Mona Rowland F. E. Watson Richard Macke Joe Hogan Stephen Dozza L. Prewitt M. S. Pruett Roger L. Block Johnnie Hunter M. J. Johnson Nilene Hosier Bill Doddridge James L. Green Charles Van Sickle Paul E. Davis Harold Hendrix Marjorie Oler Mary Sue Couch Larry D. Loper S. J. Fellers William Caldwell Betty Lou Shinn Mina L. Boyles Priscilla D. Lamb Patricia A. Sloan Argalee Phenis Evelyn Beck Vickie S. Hoover Vicky Claypoole Glenita Dudley Charlotte Bleill Jean Holliday Mary Christine Tate Donna M. Smitson Karla Chasteen Georgia P. Moore Brenda Jean Robinson Brenda Joyce Smith Brenda G. Moses Penny M. Drook Sharon A. Woodard Catherine Bennett Virginia L. Spears Lois J. Sanders Barbara J. Back Bonnie J. Greye Brenda K. Ponder Reba Seal Dianna Rowe Sandra Sue Scott Connie Young Karen Keeton Linda S. Bickel Richard Dunaway Howard M. Dodd, Esq., and John W. Gray, Esq., for the General Counsel. Frank H. Stewart, Esq., and Mark S. Sauter, Esq., of Cin- cinnati, Ohio, for the Respondent. Jerry A. Spicer, Esq. (Snyder, Rakay & Schmidt), of Dayton, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. These consolidated cases were heard in 23 sessions at Richmond, Indiana, on and between December 6, 1982, and March 3, 1983, based on complaints, as amended at the hearing, generally alleging violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act arising out of collective bargaining following the expira- tion about April 30 and May 1, 1982, of two collective- bargaining agreements, out of a strike commencing May 13, 1982, and out of the discharge of 33 employees alleg- edly for misconduct against Richmond Recording Cor- poration d/b/a PRC Recording Company (PRC or Re- spondent) while the employees were on strike on behalf of Local 2043, International Brotherhood of Electrical Workers, AFL-CIO (the Union). DECISIONS OF NATIONAL LABOR RELATIONS BOARD In particular, the charge in Case 25-CA-14508 was filed by the Union and served on Respondent on May It, 1982, with complaint issuing on June 25, 1982, alleg- ing violations of Section 8(a)(1), (3), and (5) of the Act in that, in substance, about May 6 and 11, 1982, Respondent unilaterally placed into effect combined job classifica- tions of unit employees and unilaterally reduced or elimi- nated the amount of vacation time , insurance benefits, wage rates, personal leave dates, pension benefits, and cost-of-living wage adjustments, during collective bar- gaining, notwithstanding the absence of a bargaining im- passe and without the Union's consent. The complaint al- leges this conduct to constitute not only a violation of Section 8(a)(5) of the Act, as a failure to bargain in good faith, but as a violation of Section 8(a)(3) of the Act in that Respondent's conduct, allegedly derived from the union membership's rejection of Respondent's collective- bargaining proposals, was motivated by unlawful dis- crimination. The complaint also alleges that certain of Respondent's employees represented by the Union, on May 13, 1982, commenced a strike caused and prolonged by these alleged unfair labor practices. Alternatively, the General Counsel further alleges that even if there were a bona fide impasse, the actual imple- mentations, above noted, of May 6 and It, 1982, being different from and more restrictive than those terms Re- spondent offered prior to impasse to which the Union tentatively agreed on May 6 (but thereafter rejected on May 8) such implementations would nevertheless violate Section 8(a)(1), (3), and (5) of the Act. On October 7, 1982, an order consolidating cases and complaint and notice of hearing was issued in Case 25- CA-14830, consolidating the aforementioned complaint with a further complaint alleging, inter alia, that Re- spondent unlawfully threatened employees with reprisals, including threatening to hang an employee on a pole, be- cause the employees engaged in union activities. Further, this complaint alleges the unlawful discharge of 33 of Respondent's employees for having engaged in a lawful strike, commencing May 13, 1982, and also alleges the unlawful failure to reinstate, commencing June 28, 1982, some 267 of Respondent's striking employees. These latter employees, it is alleged, who were engaging in the aforementioned unfair labor practice strike, were made the subject of the Union's unconditional offers to return to work on June 28 and July 13, 1982, which offers Re- spondent allegedly unlawfully rejected, thus resulting in the employees being unlawfully refused reinstatement in violation of Section 8(a)(1) and (3) of the Act. Prior to the opening of the hearing, the General Coun- sel further amended the complaint in Case 25-CA-14508 (G.C. Exh. 1(u)) by alleging as further violation of Sec- tion 8(a)(1) and (5) of the Act that Respondent, about April 27 and May 3, 1982, materially misrepresented its bargaining position by failing to advise the Union that a substantial reason for certain of Respondent's proposed changes in the collective-bargaining agreement was its poor financial condition; that since about May 3, 1982, Respondent advised the Union that its books and records would not be shown to the Union and would be shown only to the Internal Revenue Service and its lenders, PRC RECORDING CO. thereby refusing to supply such records to the Union and establishing the futility of requesting such books and records; that the Respondent's books and records regard- ing its financial status are necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining representative of certain of Re- spondent's employees; and that since May 3, 1982, Re- spondent has unlawfully failed and refused to furnish the Union information described in its books and records re- flecting Respondent's financial position. Lastly, at the hearing, the General Counsel amended the complaint in Case 25-CA-14508 by alleging that about April 30, 1982, Respondent, during a negotiation session with the Union, in violation of Section 8(a)(1) of the Act, threatened to withdraw a contract proposal and to substitute a less desirable one if Respondent's proposal was rejected and the Union went on strike. To all these allegations Respondent submitted timely responsive pleadings wherein it admitted certain allegations of the complaint, as amended, but denied others and denied the commission of unfair labor practices. At the hearing, all parties were represented by counsel who were accorded full opportunity to call and examine witnesses, submit motions and evidence, and argue on the record and make final argument, which final argu- ment was waived . At the conclusion of the receipt of evidence, all parties submitted briefs which have been carefully considered. On the entire record," and particularly on my observa- tion of the witnesses as they testified, and giving due consideration to the posthearing briefs filed by the par- ties, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW2 I. BUSINESS OF RESPONDENT At all material times, Respondent, a Delaware corpo- ration, has maintained a principal office and place of business at Richmond, Indiana, and a further facility in Compton, California, where it has been engaged in the manufacture, sale, and distribution of phonograph re- cordings, tape recordings, and related products. In the 12-month period prior to issuance of the complaints, a period representative of Respondent's business generally, Respondent in the course and conduct of its business op- erations manufactured, sold, and shipped from the Rich- mond, Indiana facility goods and materials valued in excess of $50,000 directly to points located outside the State of Indiana, and purchased and received at the facil- ity products, goods, and materials valued in excess of $50,000 shipped directly from firms located outside the ' Respondent and the General Counsel have submitted cross-motions to correct the transcript and further papers concerning the motions These have been noted and certain errors in the transcript have been cor- rected 2 Among the stipulations and admissions of the parties, including the pleadings, were that Respondent 's personnel, George Douglas (plant manager), Robert Jewell (director of industrial relations), Greg Spear (vice president), Harold Williams (general foreman), George Preston (production superintendent-tapes), Lavern Tayler (head of security), Russel Wright (foreman), and Gene Wise (foreman), at all material times, were supervisors and agents of Respondent within the meaning of Sec 2(11) and (13) of the Act 621 State of Indiana. The complaints allege and Respondent admits that at all material times it has been, and is, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I so find. II. THE UNION AS A LABOR ORGANIZATION The complaints allege, Respondent admits, and I find that the Charging Party, International Brotherhood of Electrical Workers, Local Union No. 2043, AFL-CIO, at all material times, has been and is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Overview About 1959, the Union was certified as the statutory collective-bargaining representative of a unit of a prede- cessor employer's employees engaged in the manufacture of records. Respondent admits that the following em- ployees of the Respondent, at all material times , consti- tute a unit (the records division) appropriate for the pur- poses of collective-bargaining within the meaning of Sec- tion 9(b) of the Act: All production and maintenance employees at all Respondent's Richmond, Indiana plants; BUT EX- CLUDING all watchmen, Printing Department em- ployees, office clerical employees, all guards, pro- fessional employees, all employees included in the Tape Division unit, and all supervisors as defined in the Act. Respondent further admits that since 1974, and at all material times thereafter , the Union has been, and is, the statutory collective-bargaining representative of Re- spondent's employees in a further unit (the tape division) appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All Tape Division production and maintenance em- ployees working at all of the Respondent's Rich- mond, Indiana plants; BUT EXCLUDING all office clerical employees, guards, professional em- ployees, all employees included in that unit of em- ployees described as Record Division employees and all supervisors as defined in the Act. Respondent thus admits that the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the employees in the above units. Respondent further admits that about February 17, March 12 and 26, April 2, 22, 23, 27, 28, 29, and 30, and May 5, 6, and 12, 1982, the Union, by letter and by per- sonal request to Respondent , requested Respondent to bargain collectively with it as the exclusive bargaining representative of the employees in the above-described units with respect to wages , rates of pay, hours of em- ployment, and other terms and conditions of employ- ment. Respondent and the Union have maintained separate collective-bargaining agreements over a period of many years covering the employees in the above units: the last 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3-year records division agreement expired on April 30, 1982; the last tape division 3-year agreement expired the next day, May 1, 1982. In consequence of these anticipat- ed expirations, the Union, by letters dated February 17, 1982, notified Respondent of the expiration of the agree- ments, its desire not to renew the terms thereof, and its request to enter into negotiations for new collective-bar- gaining agreements. About March 12, 1982, the parties exchanged noneconomic proposals relating to the records division employees and about April 2, 1982, ex- changed noneconomic proposals concerning tape divi- sion employees. Prior to the expiration of these collec- tive-bargaining agreements, only Respondent submitted economic proposals regarding the employees in these units. These proposals were submitted to the Union on April 27, 1982, 3 days before expiration of the records division agreement. Bargaining on April 30, including certain improved last offers of wages and other terms, proved ineffective. On May 1 the Union's membership, at the urging of its bargaining committee, rejected Re- spondent's April 30 last offers. Further postexpiration bargaining on May 5-6 produced tentative agreements on May 6 covering both units. These tentative agree- ments, however, were rejected by the Union's member- ship in a ratification vote of May 8. On May 6 and 11 Respondent implemented its March 12, April 2 (noneco- nomic), and April 27 (economic) offers which were on the table on April 30. On May 12 the Union voted to strike commencing May 13. The strike has continued to this writing notwithstanding June 28 and July 13 union offers to return and Respondent's June 29 response there- to. Commencing July 12, 1982, Respondent began dis- charging 33 strikers for strike misconduct. In 1979 Respondent employed a total of approximately 550 employees, working three shifts, manufacturing records and tapes. By 1982 Respondent was working two shifts in records, one shift in tapes, and employed fewer than half the number of employees who were em- ployed in 1979.3 During the 1982 bargaining, Respond- ent asserted that in the 12-month period prior to January 31, 1982, it had suffered a net loss of $775,000 at the Richmond facility resulting in a net worth of Respond- ent, at the Richmond plant, of $1,660,000. This fiscal problem had admittedly affected Respondent's financial status and was one of several considerations which influ- enced its April 27, 1982 economic offers to the Union. Prior to the exchange of noneconomic offers on March 12, Richard Marcus, an attorney and Respondent's chief negotiator in these negotiations, had spoken with Re- spondent's president, Ira Hainick, at the Company's New York headquarters, and had discussed Respondent's eco- nomic situation and the bargaining. In that conversation, Marcus told Hainick that if the Company pleaded an in- ability to pay, it might result in Respondent being re- quired to open its books to the Union. Hainick told him that it was Respondent's desire not to open its books. At no time during negotiations did Respondent plead an in- ' Plant Manager Douglas testified that by April-May 1982 there were about 225 records division employees. Tape division employees grew to 42 in 1982 from 20 in 1979 The complaint shows 267 striking employees in both units who were allegedly unlawfully refused reinstatement ability to pay as a basis for its several economic offers to the Union. At no time during negotiations did the Union demand or request to see Respondent 's books and records relating to its financial condition. Respondent is a "custom manufacturer" of records and tapes. Thus, it manufactures tapes and 12-inch and 7-inch records under labels for other manufacturers or distribu- tors. Except for the occasions of the deaths of such re- cording stars as John Lennon and Elvis Presley in 1979 and 1980, the period of 1979 to 1982 has demonstrated a general decrease in the record and tape business because of changes in business practices of the recording compa- nies concerning return of product ; change in musical tastes; the economic recession; the growth of video ar- cades and other competition; and, most particularly, the unlawful taping of records and tapes by retail customers. Since 1979 the competitive position of the industry and the decline of general business have been matters brought to the attention of its employees and the Union. Respondent has posted these facts on employee bulletin boards and included these facts in its employee newspa- per. The business of Respondent at the Richmond, Indi- ana plant, even in times of manufacturing demand, has resulted in the periodic layoff and rehiring of employees in these two divisions. The experience of the employees has been that they may be laid off at the end of a par- ticular day and recalled immediately the following day because of an influx of orders. Thus, "lay off status" among the 250-plus employees regularly employed did not necessarily mean lay off for long periods of time. The receipt of a relatively large work order resulted in the recall of employees and the execution of the new order. The records division collective-bargaining agreement (G.C. Exh. 2) which expired on April 30, 1982, demon- strates (Exh. A therein) 54 classifications of employees in 16 "labor grades." In the 3-year contract, each of the labor grades shows both wage increases at the anniversa- ry periods of the first 2 years and progressively larger wages running from the lower labor grades to the higher. The tape division contract (G.C. Exh. 3) shows 11 labor grades with 19 job classifications. A principal area of economic and legal dispute in this case arises from Respondent's desire to combine various job classifi- cations so that a single employee may perform several jobs, thereby resulting in the need for fewer employees; and the Union's corresponding desire to resist and oppose the combination of jobs, thereby ensuring the maximum number of employees utilized to execute the various functions required by Respondent in the manu- facture and distribution of its products. An irritant voiced by Respondent on at least several occasions during the hearing and during bargaining , as having prompted its desire to combine job classifications, was the alleged lack of productivity caused by severely re- strictive job classifications described in the contract. In particular, this low productivity occurred in the ware- housing and distribution operation at the Richmond, In- diana facility. Plant Manager Douglas noted that it took four employees to move one skid of records: a high-lo operator (labor grade 14), a checker (labor grade 15), a i PRC RECORDING CO. shipper (labor grade 10), and a special shipper (labor grade 12). Certainly as far back as the beginning of 1980, in infor- mal labor-management committee meetings (not the equivalent of grievance meetings or arbitration), Re- spondent complained to the Union over low productivity caused by the maintenance of rigid separate job classifi- cations. Thus, in an August 15, 1980 meeting, the Re- spondent's vice president (Spear) told union representa- tives, including Union President Capps, of declining new orders and the need for business efficiency and particu- larly for job combinations. Respondent desired to make into one labor grade several descriptions in warehousing and in distribution, but the Union refused to combine the jobs stating that it refused to reduce the size of the bar- gaining unit and thereby eliminate its members' jobs. Throughout the summer of 1980 and into the autumn, Respondent requested relief by means of job combina- tions which the Union refused. In September and Octo- ber, when Respondent requested job combination relief, the Union wanted information concerning training in the new job classifications and told Respondent that older female employees did not want to drive power equip- ment which would result from combining job classifica- tions (Tr. 1313; 1325). About January 23, 1981, all employees engaged in a 1- day wildcat strike the cause of which, in part, was Re- spondent's unilateral combining of jobs in the distribution department. Among the wildcat strike leaders was Corena Gomez, a distribution department employee. It was she who solicited employees in the finishing depart- ment to stop their work and join in the wildcat strike. The strike started on January 23, 1981, and ended about Monday, January 26, when the employees returned under a restraining order. In early February 1981, Respondent advised the Union that it believed that it had the right under the contract to combine jobs. The Union, at least in a particular case, suggested that Respondent did have that right but insist- ed on the Union's right to negotiate wages in the new job classifications. Respondent then made a limited com- bination of jobs in two labor grades in the shipping and warehousing departments. The combined jobs received wage increases but were so constructed as to avoid having older female employees operate power equipment (Tr. 1332). In June 1981, when Respondent sought to combine two jobs ("Label Maker `A"' and "Label Maker 'B"'), the Union filed a grievance which went to arbitration. The arbitrator's award (R. Exh. 32), inter alia, forbade job combinations under the collective-bargaining agree- ment over the Union's objection. Respondent's witnesses testified that this adverse arbitration award had a chilling effect on the Respondent's further negotiating, during the term of the collective-bargaining agreements, for job combinations and forced Respondent to await relief pur- suant to negotiations at the termination of the contracts in early 1982. There is no dispute that following the adverse arbitra- tion award of August 26, 1981, Respondent prepared to seek relief on both economic and noneconomic terms in the collective-bargaining agreements. With regard to the 623 economic proposals which it would make , Respondent procured an Indiana University economic forecast of No- vember 5, 1981, concerning predictions of economic vi- tality in 1982 and 1983, particularly relating to salaries and expectations in Indiana, in general , and in Rich- mond, Indiana, in particular (R. Exh. 33); a wage survey in the Richmond, Indiana area (R. Exh. 34) compiled from more than a half dozen business enterprises in the Richmond area; and a general records industry wage survey (R. Exh. 35). This information, together with knowledge of wages paid in its Compton , California fa- cility, was the basis of Respondent's wage offer to be made to the Union on April 27, 1982. As above noted, Respondent also admitted that its wage offer was affect- ed by its loss for the immediate preceding year: the $775,000 loss attributed to operations in the Richmond plant in the 1-year period ending January 31, 1982. B. Certain Results of the Collective-Bargaining Sessions The Union served its statutory 8(d) letters for the tapes and records divisions (G.C. Exhs. 4 and 5) on Feb- ruary 17, 1982, and the first collective-bargaining session occurred on March 12, 1982, at which time the parties exchanged their noneconomic proposals (G.C. Exhs. 6 and 7). The chief union negotiator was Tony Bucella; the chief respondent negotiator, Richard Marcus. Among the proposals in its 22 pages of noneconomic changes, Re- spondent desired to (1) make the International Union a party to the agreement because of wildcat strikes by the Local; (2) permit Respondent in the records division, as it had the right in the tape division, to subcontract unit work in order to gain "flexibility"; (3) have the Union agree to indemnify with Respondent in case of a dis- charge relating to nonmembership in the Union; (4) give Respondent greater "flexibility" by modifying starting and stopping times and permit continuous operation of Respondent's manufacturing and other operations by shifting rest periods and lunch periods; (5) permit the mandatory assignment of overtime as in the tape division contract; (6) permit, at Respondent's discretion," the right to create and combine jobs to remedy the adverse arbitration award, above; (7) reduce the number of job classifications from 54 to 28, and delete the prohibitions against using and assigning maintenance craft employees in order to prevent jurisdictional disputes in the mainte- nance departments; (8) permit Respondent to decide who the most qualified senior employees were in the filling of jobs rather than permit the filling of jobs solely on the basis of seniority and without regard to qualifications; (9) permit retention of employees based on qualifications in case of a reduction-in-force rather than on plantwide se- niority; (10) limit the opportunities for employees to de- scribe the number of jobs they would desire in case of a reduction-in-force on the job selection forms they sub- mitted; (11) limit the superseniority of shop stewards only to those who administered the contract; (12) permit * This requested continuing right is to be distinguished from the actual job combinations to which the Union tentatively agreed to on May 6 (G C Exh 20) 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent to assign, for up to 15 days, employees to new jobs rather than recalling laid-off employees for emergency conditions or if sudden production demands required such assignment; (13) change the "jubilee" pro- vision whereby employees would have their employment records "wiped clean" of adverse notations every 18 months rather than the existing 12 months; and (14) pro- vide a new no-strike clause against production interfer- ence: create special responsibility for union officials, pro- vide for quick arbitration, and make the Union responsi- ble to end wildcat strikes. 5 For its part, the Union's March 12 noneconomic pro- posal, inter alia, urged that employee vacations be great- er than under the existing contract; extended the time where employees retained seniority during a 24-month leave of absence; increased the insurance benefits under the sickness and accident policies; and extended the su- perseniority provision for union officials. Commencing with bargaining on March 12, the par- ties, though some real progress was thereafter had, were far apart in terms of their noneconomic proposals and counterproposals in March 12 and April 2, 23, and 27-29 bargaining. Especially was this true on the question of Respondent's proposed job combinations. On April 27 Respondent submitted its first economic proposal. This called for a 30-1/2-percent wage decrease measured across the board for all classifications, running from a 7-percent decrease in the highest pay classifica- tions to over 40 percent in the lower labor grades. This April 27 proposal not only requested the above reduc- tions in actual wages (with corresponding reductions in the tape division) but also significantly changed the exist- ing contract's holiday provision, changing the 12 paid holidays to 8 paid holidays and 2 "personal" holidays; changed the calculation of vacations in the old contract from percentage of actual pay with up to 4 weeks of va- cation to the elimination of all vacations in excess of 4 weeks and use of base pay rather than a percentage of actual earnings. This economic proposal also eliminated COLA, and reduced Respondent's group insurance obli- gation, both sickness and accident insurance coverage and the dental program. In the collective-bargaining ses- sions of April 28 and 29, Respondent raised its wage rate proposal to the extent that current employees would re- ceive a different (higher) wage rate from those employ- ees to be hired thereafter; and current wage rates, includ- ing those of employees on the seniority roster of April 30, would be substantially higher than the wage rates proposed on April 27, i.e., in the lowest pay grade, a "packer" who was newly hired, would start at $3.75 per hour and reach a maximum pay of $4 per hour while current employees in the same job category would have a pay rate of $5.86 per hour. Further bargaining on pro- posed job combinations was inconclusive. The Union, on April 28, in substance, rejected Respondent's economic offer of April 27. s The proposed changes in the tape division contract, exchanged by the parties on April 2, 1982 (G C. Exhs 8 and 9) followed the proposed changes in the text in the records division contract C. The Collective-Bargaining Session ofApril 30 As Respondent asserts, Marcus opened the April 30 meeting by stating that it was getting very late and that the contracts were about to expire . The records contract was expiring on April 30, that very day. Marcus told the union negotiators that Respondent had new proposals with many concessions which went well beyond what Respondent thought reasonable for a settlement. Re- spondent then offered a series of proposals to obtain an agreement. Respondent's first April 30 economic propos- al not only increased the offer of wages to current em- ployees (notwithstanding that it remained fixed with regard to newly hired employees) but established that ex- isting employees would receive a wage increase in 1984 beyond the highest starting wage rate. In the noneconomic area, Respondent, inter alia, dropped its proposals for subcontracting; for the stagger- ing of hours and reporting pay; for mandatory overtime; for participation in the defining of "qualified " employees for job openings; for changes in discipline and discharge except changes in the "jubilee" clause; and for changes in the grievance procedure except that it continued in its proposal permitting Respondent 4 working days to file an answer. Most significantly , Respondent, while drop- ping its proposed contract right to continue to combine jobs, continued to insist on its proposed , single, outstand- ing combination of jobs : from approximately 54 positions to 28 . In addition, Respondent (R. Br. 23) accepted vari- ous union proposals including premium multiples of the regular wage rate for certain overtime and holiday work. After a union caucus, the Union made counterpropos- als including the extension of the maximum period of layoff before loss of seniority to 24 months, guaranteed holiday pay irrespective of employee layoff or work status, continued Respondent's payment of all insurance premiums, increased sickness and accident benefits, in- creased life insurance benefits , and increased monthly pensions by 25 percent plus the inclusion of tape division employees in the pension program . Respondent's pension proposal was the deletion of all pensions. In its counter- proposals, the Union not only rejected the Respondent's proposals on discipline and discharge , but rejected any form of job combinations and orally demanded a wage increase of 10 percent each year. Following a lengthy caucus , Respondent's chief nego- tiator Marcus stated, as Respondent asserts (Br. 24), that he was giving the Union a "final proposal" because it was getting "very late." He said that, to obtain an agree- ment, Respondent was making a second economic offer of further economic concessions. Respondent maintained the same noneconomic proposals. The economic conces- sions took the form principally of raising the rates of pay, both starting and the 1984 anniversary date, for em- ployees on the payroll of April 30 , 1982, i.e., the present unit employees. Similar pay raise concessions were made for the tape division employees. After stating that this was the Respondent's final proposal , Marcus told the Union that he wanted it understood that if this proposal was rejected and if there was a strike , the parties would be "back to square one." Tony Bucella smiled and said the Union was not going to strike , and when Marcus said PRC RECORDING CO that in case of a strike the parties would return to "square one," i.e., back to the "original proposals" of March 12 and April 2 (noneconomic) and April 27 (eco- nomic), Bucella answered that that was his feeling as well. These exchanges between Marcus and Bucella oc- cuffed principally because the Union was to vote on this final offer on the next day, Saturday, May 1, 1982. Fol- lowing these exchanges, Bucella then met with the Fed- eral mediator who was present for the first time at this April 30 meeting and rejected Respondent's proposals. He informed Marcus, however, that he would present Respondent's final offer to the membership but would recommend that the membership similarly reject it. Marcus said that Bucella was free to do so but that Re- spondent had gone as far, and further, than was warrant- ed for a contract settlement . He reiterated that if the union membership actually rejected Respondent's offer, the parties were going back to square one. There is no dispute between the parties that "square one" referred to a return to Respondent's original noneconomic offers in the records and tape divisions of March 12 and April 2, 1982, and to its economic offer of April 27, 1982, the first economic offer. D. The Collective-Bargaining Session of May 5, 1982,• Tentative Agreement of May 6 The next day (May 1), the union membership unani- mously rejected Respondent's April 30 final proposal at the Union's meeting. Marcus immediately telephoned Bu- cella to confirm the fact . When Bucella confirmed the unanimous rejection, Marcus told him that since it was rejected, the parties were back at "square one" and re- quested another collective-bargaining meeting as soon as possible. Bucella told him that he would have difficulty arranging another meeting because he was tied up in other matters. However, Marcus insisted that Marcus thought it was very important that they have another meeting "quickly"; they arranged for a meeting on the morning of Wednesday, May 5. At that meeting, as well, the Federal mediator was present. The May 5 meeting convened about 9:30 a.m. at a motel in Richmond. Marcus repeated what he had said at the April 30 bargaining session: in the event of rejection of the last proposal, the parties were back to "square one." He then went through the March 12 and April 2 and 27 noneconomic and economic proposals and item- ized exactly what was on the table . Again, these were the original offers in the noneconomic area for tape and records of March 12 and April 2, 1982; and the April 27 tape and records economic offers, including the 30.5-per- cent reduction in wages . Respondent's proposed job combinations, the elimination of pensions, COLA, reduc- tions in insurance, and holidays, etc., were reasserted. Both Marcus and Bucella testified that at the end of this presentation, after about 10:30 a.m., but before the Union responded to Respondent's presentation, Marcus allegedly replied, "I believe we are at an impasse and it is the Company's intention to implement its proposals that we gave you this morning, at the end of the second shift or at the beginning of the shift tomorrow." The General Counsel and the Charging Party appeared to agree with this state of facts. In addition, Respondent 625 suggests (Br. 28) that the testimony of the General Coun- sel's witnesses Lathrop, Dudley, and Smitson (all union officers or negotiating team members) support Bucella's and Marcus' recollection of Marcus having made the above statement concerning the existence of impasse about 10:30 a.m . Though it is true that Bucella's testimo- ny does corroborate Marcus' recollection, a review of the record clearly shows that neither Lathrop's, Smit- son's, nor Dudley's testimony corroborates Marcus' and Bucella's testimony. Contrary to the understanding of the parties and their arguments, I specifically find that, contrary to Marcus' assertion and Bucella's corroborating recollection, Marcus made no such statement at that time. Marcus' tes- timony was incredible and erroneous (whether or not by design); and Bucella's recollection was inaccurate and confused as to chronology. 6 I find, however, that Marcus did make such a statement some 5 or 6 hours thereafter, i.e., about 3 p.m., rather than 10 :30 a.m. I reach these conclusions as discussed below , on the cred- ited testimony of Lathrop, Dudley, and Smitson, and particularly on the evidence consisting of separate, con- temporaneous bargaining notes compiled by Smitson (R. Exh. 8(b)) and the similar notes of the collective-bargain- ing sessions compiled by Union Vice President White- head (G.C. Exh. 38). Additional support for this conclu- sion comes from the testimony of Plant Manager Doug- las to show that Respondent, in general, and Marcus, in particular, made no reference to an impasse in the morn- ing of the May 5 negotiations. E. Bargaining on May 5,• Evidence in Support of the Conclusion that Marcus did not Mention Impasse on the Morning of May 5, 1982 (a) There is no dispute that Smitson , a member of the Union's contract negotiating committee, a secretary for 14 years, recorded the essence of and, at times , verbatim exchanges of the bargaining sessions and, in particular, the bargaining session of May 5 . Her original notes were in shorthand and were thereafter transcribed into typed written notes (R. Exh. 8(b)). There is no suggestion of inaccuracy in her original taking of the shorthand notes or her transcription of the notes or of any impropriety such as the comparison of her notes with the notes taken by Whitehead, her union committeeman. Smitson's notes show that after Marcus went through the economic and noneconomic proposals which were then on the table at this May 5 morning meeting , he told the Union that although Respondent was "very , very se- rious about the proposals we submitted," Respondent was prepared to negotiate . According to her notes, it was at this point that Bucella asked Marcus if Respond- ent was contending an inability to pay . Marcus denied an inability to pay and alleged that only IRS and Respond- ent's lenders would be able to see its books and that Re- spondent's ability to make a profit was not a subject for 6 In view of other evidence on which I rely , infra, it is unnecessary to rely on, analyze, or elaborate on my conclusion that the full context of Bucella's testimony demonstrated that what he recounted as happening in the morning of May 5, actually occurred , in large part, in the afternoon of May 5 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations. Similarly, Bucella is quoted by Smitson as having said that the Union was flexible and that if Re- spondent wanted to start from scratch, the Union was willing to consider Respondent's proposals. In particular Bucella said, and I find: "We are here to negotiate." Her records show, and I find that the Union then caucused between 10:15 and 11:05 a.m. and returned by proposing a 1-year extension of the expired agreement which Re- spondent promptly rejected. When Bucella then asked Marcus if he were interested in anything other than the Company's proposal, Marcus said: "Sure, we are willing to listen to anything you want to propose." Marcus, ac- cording to Smitson, then asked Bucella whether the Union was interested in a 2-year agreement under the terms that Respondent had proposed rather than the 3- year agreement which Respondent had erstwhile insisted on.7 Bucella then asked specifically whether Respondent would consider a 2-year agreement. When Marcus said that he would, Bucella asked: "How about 18 months?" Marcus answered that that would not be acceptable and that a 2-year agreement would be the "bare-bones" mini- mum. Marcus warned Bucella not to return with an offer which included COLA and the current insurance ar- rangement. At that point, the parties broke for lunch and caucused for a lengthy period until about 2:30 p.m. to permit the Union to formalize its 2-year proposal. At ap- proximately 2:30 p.m., the session reconvened and the Union then proposed a 2-year contract. The terms of the Union's proposals were not consistent with Respondent's prior outstanding offer. Whitehead's notes (G.C. Exh. 38), although not quite so full as Smitson's, show that, in this period, after Marcus reviewed the present status of Respondent's offer (the noneconomic offers of March 12 and April 2; the economic offer of April 27 only), Tony Bucella asked Marcus whether Respondent was "prepared to negoti- ate" and Marcus answered: "We are prepared to negoti- ate. We are very serious and want to prepare for prob- lems in the future." To this, Bucella answered that the Union was prepared to negotiate. Marcus said that the wages that were offered were equal to or better than those at Respondent's Compton, California plant. It was at this point that Bucella and Marcus spoke about wheth- er the Company was making a profit or pleading pover- ty. Thereafter, Marcus said that Respondent had no desire to pick up where it had left off but was very flexi- ble and willing to negotiate. Marcus also said that they were ready to negotiate "short or long." Whitehead notes, as did Smitson, that about 11:10 a.m. Bucella in- quired whether, if they could not conclude a tentative agreement, Respondent was willing to extend the con- tract and Marcus said he would not answer until he re- viewed Bucella's actual proposal. When Bucella asked for a 1-year extension, Marcus said that he was opposed to it because Respondent had "problems to correct." In answer to Bucella's further question ("are you interested in anything but what you proposed"), Marcus answered, "Yes," he would be willing to listen to anything the 7 Whitehead's notes show that it was Bucella who asked this question rather than Marcus While the resolution is not crucial, I credit White- head's version. See Whitehead's notes, infra Union wanted to propose. When Bucella asked whether Respondent would consider a 2-year contract, Marcus said a 2-year contract would be all right but nothing shorter. Marcus, however, said, as Smitson also noted, that with such an extension, he was not interested in con- tinuing the existing cost-of-living and insurance cover- ages. The Union, therefore, sometime after 11:10 a.m., left for a luncheon caucus to formalize its 2-year coun- teroffer. According to Whitehead, as with Smitson, it was after lunch that the Union returned with a counter- proposal for a 2-year agreement. Both Smitson and Whitehead, in their contemporane- ous notes, show, respectively, that "after lunch" and that at "2:30" the Union proposed a 2-year agreement relating to insurance coverage (the current insurance program to remain intact except for future premium increases which would be split between the parties); holidays (Respond- ent's last proposal except that the 3 "personal days" would apply to future employees after 1 year), vacations, pensions, COLA, and a 5-percent wage increase as of May 1, 1982, none of which were consistent with Re- spondent's offer. According to Smitson's notes, Marcus responded at the very first by asking: "What about job classifications proposed by the Company?" Bucella an- swered: "We are willing to make some changes, but not all." Marcus then said that the Union's proposal was re- jected in its entirety and, according to Smitson's notes (R. Exh. 8(b), p. 30), "In our estimation we believe we are at an impasse in these negotiations. Effective at the end of the shift today we intend to implement our pro- posal in its entirety." Similarly, Whitehead's notes show that at this point, without a caucus, Marcus told Bucella that the Union's proposal was rejected in its entirety and "We think we are at an impasse in these negotiations. At the end of the shift today we are going to implement our last proposal." (b) Therefore, not only do Smitson's and Whitehead's notes show no reference to the word "impasse" in the morning session and show the existence of this legally important word only in the afternoon, after 2:30 p.m., and only in association with the 2-year counterproposal presented by the Union at the express request of Re- spondent, but Respondent's plant manager Douglas testi- fied that he first heard the word "impasse" only in the "afternoon" of May 5 (compare: Tr. 1431-1433; 1494). His subsequent testimony that the word "afternoon," to him, meant any time between 11 a.m. and 3 p.m. is re- jected.8 I agree with Respondent's contention (R. Br. 68) that Bucella's testimony, which I sometimes found facile, should not be credited especially with regard to his ideas of chronology. Rather, confirming both Smitson's and Whitehead's contemporaneous notes of the May 5 morn- ing collective-bargaining session, and Douglas' credited s Plant Manager Douglas testified that his bargaining notes would show a more exact time when he first heard the word "impasse" (Tr. 1494) Neither he nor Respondent produced his notes . I infer that pro- duction of the notes would fail to support both his subsequent testimony wherein "afternoon" could include 11 o'clock in the morning and Marcus' testimony of a morning use of the word "impasse" and would support an inference of a later declaration of "impasse" by Marcus Cf Auto Workers v. NLRB, 459 F.2d 1329 (D C Cir 1972), with Hitchiner Mfg. Co, 243 NLRB 927 (1979) PRC RECORDING CO. original testimony, I find that Marcus used the word "impasse" only after 2:30 p.m., i.e., as Douglas said, in the "afternoon," and that it was uttered in conjunction with Marcus' intention to implement Respondent's out- standing offers after he rejected the Union 's counterpro- posal which he had invited prior to the luncheon caucus. (c) Lastly, there is further circumstantial evidence in the credited testimony of the Union 's committeemen Glenita Dudley (Tr. 830-831)9 ana Richard Lathrop (Tr. 806-807) which demonstrates that there was no sugges- tion of "impasse" until the midafternoon of May 5, 1982, as Douglas' testimony and Smitson's and Whitehead's notes convincingly demonstrate . The testimony of both Dudley and Lathrop, clearly ingenuous on this point, in- dicates that it was about 2:30 p.m. that the conversation between Bucella and Marcus became so heated that they were yelling at each other. In particular, Bucella was upset at Marcus' describing the status of their negotia- tions to be "at impasse" after Bucella, at Marcus' May 1 request for an urgent collective -bargaining session (Tr. 806), had gone to a great deal of trouble in canceling his prior appointments for May 5, a condition which Bucella had mentioned to Marcus in their telephone conversation of May 1 . Bucella remonstrated with Marcus for his having called "impasse" in the afternoon and regretted that Marcus had not called "impasse" earlier in the day. It appears to me that if "impasse" had been mentioned by Marcus in the morning, together with an intention to implement, as he testified, there would have been no reason for Bucella to first become angry at the mention of "impasse" at 2:30 p.m.; and there would not have been this mutually corroborative recollection of Lathrop, Dudley, and Plant Manager Douglas , together with Smitson's and Whitehead's notes , that it occurred in the afternoon. If Marcus had declared impasse in the morn- ing, there would have been no reason for Bucella's 2:30 p.m. shouting match with Marcus, with Bucella angry that Marcus had not mentioned impasse "earlier." I con- clude that there was no mention by Marcus , or anyone else, of "impasse," or an intent to implement any terms, in the morning of May 5, 1982, and that, as noted hereaf- ter, Marcus first declared "impasse" only after 2:30 p.m. on May 5. (d) In sum, in the late morning of May 5, certainly after 11 a.m., after Marcus' exposition of the existing Re- spondent proposals on the table, and after Marcus reject- ed any type of 1-year freeze continuing the expired con- tracts' COLA allowance, he said, in answer to Bucella's question of whether Respondent was interested in any proposal other than Respondent 's, that he was "willing to listen to anything you want to propose ." It was at this point, late in the morning of May 5 , that Bucella in- quired as to whether Respondent was interested in a 2- year proposal . Marcus said he would consider a 2-year agreement under the Respondent 's terms previously of- fered for the 3-year agreement. After an interim rejection by Marcus of Bucella's proposed 18-month extension ("a I have not credited Glenita Dudley's testimony regarding her own discharge and in other areas. Here, she and Lathrop, on my observation, were not aware of the import of this particular recollection. See J Hand, NLRB v Universal Camera Corp, 179 F.2d 749, 754 (2d Cir 1950) 627 2-year extension is the barebones minimum"), the parties caucused for lunch sometime after 11:05 a.m. to permit the Union to bring forward its 2-year counterproposal. Neither the word "impasse" nor an intention to imple- ment had been uttered at this time. F. The Departure of Industrial Relations Director Robert Jewell Sometime after the parties adjourned for the lunchtime recess and caucus, probably immediately after 11:05 a.m., without notification to the Union, Marcus sent Robert Jewell, Respondent's director of industrial relations, away from the motel where these bargaining sessions were occurring, to return to the plant. Respondent places his departure somewhat earlier (R. Br. 30), but I find that it occurred sometime immediately at or after 11:05 a.m., during the lunchtime recess when the Union was drafting its 2-year counterproposal. The reason for his departure was to "implement the Company's proposal that had been outlined that morning" (R. Br. 30; Tr. 1906). The "implementation" was nothing less than to physically destroy the existing job classifications and labor grade structure under the now expired contract and to create the completely changed labor grades and combined job classification structure which was the sub- ject of Respondent's unchanging and now renewed offers of March 12 and April 2, 1982. Jewell and a staff of clericals worked until 6 p.m. to eliminate the old system (accomplished by 2 p.m.) and create the new system. This was the change from 54 job classifications down to 28 and a change in labor grades, accordingly. By instituting these changes, it is undisputed that thereafter, employees neither would be called to work in their old jobs nor by virtue of their preexisting seniority in the old job classifications, but under new se- niority in the combined classification; and would not be required to do the rigid, single job for which the old system existed, but any one of several jobs which ap- peared in the combined classification or which appeared in their job selection forms which showed what they had previously done or which they thought themselves capa- ble of doing. In any event, the new system would reduce the number of employees called into work because one employee would be required to perform several job func- tions whereas previously, except for emergencies or re- duction-in-force situations, an employee would perform only his single, classified job.' 0 The old method of job selection for a particular recall of employees required the use of a manual system con- sisting of a board on which magnetic tapes showed the seniority and job of each employee, together with a com- puter tape system which was a reflection of the manual, magnetic board. As above noted, in the 6 or 7 hours it took Jewell and a staff of eight employees to change the old system into the new system, it required that the old system be physically destroyed (R. Br. 31; Tr. 1912). 10 Indeed, representative job selection forms introduced in evidence by Respondent (R Exhs. 44, 45, and 46) demonstrate that the alternate jobs mentioned by each employee on his/her job selection form were to be awarded to the employee "in the event a reduction in force requires me to leave my official job " 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indeed, by 2 p.m., as Jewell testified, his conversion of the old system into the new system had reached such a point of destroying the old system that he had "crossed the Rubicon" and that it was impossible to reinstitute the old system. Plant Manager Douglas left the bargaining table about 3 p.m. to return to the plant, apparently, inter alia, to see how far Jewell had progressed in switching over to the new job combination system. By 5:30 or 6 p.m., Jewell told Douglas that he would be able to schedule the call- in of employees under the new system. At no time on May 5 did Respondent tell the Union what Jewell was doing. At no time during May 5, until about 2:30 p.m., was there any notice by Respondent to the Union that it intended to implement the new seniori- ty call-in system based on new combined job classifica- tions. At no time on May 5 did Respondent attempt to halt Jewell's conversion of the system. At 2:30 p.m., after the lunch and caucus break of the respective parties, with the Union ignorant of the de- struction of the existing job classification system and of the new, combined job recall system being entered into the computers, the collective-bargaining sessions recon- vened. It was at this time that the Union presented a 2- year proposal with modifications of Respondent's insur- ance program, vacations, pensions, COLA, and job clas- sifications and a proposed 5-percent wage increase for all labor grades effective retroactive to May 1, 1982. Marcus then asked: "What about job classifications pro- posed by the Company?" Bucella answered: "We are willing to make some changes, but not all." (R. Exh. 8(b), p. 30.) I find that it was not until this point that Marcus told the Union that the Union's 2-year contract proposal was "rejected in its entirety" and that: "In our estimation we believe we are at an impasse in these negotiations. Effec- tive at the end of the shift today, we intend to implement our proposal in its entirety." Marcus then enumerated that the parties were at impasse on insurance, holidays, vacations, pensions, the continuation of the COLA, the Union's demand for a wage increase, and the Union's failure to adequately address, in its counteroffer, the pro- posed job combinations system. The above testimony and documents of Glenita Dudley, Douglas, Whitehead, and Lathrop corroborate Smitson's notes (R. Exh. 8(b)) that mention of impasse occurred at 2:30 p.m. or thereafter.' 1 After Marcus de- clared the impasse and his intent to implement with the coming morning shift of the next day, Bucella said that there was no impasse because the Union was there to ne- gotiate. Bucella then asked the Federal mediator if there was an impasse, said the Union was flexible, and that it was willing to negotiate each of the items that Marcus had spoken of in declaring the existence of impasse: COLA, insurance, wages, etc. This was about 3 p.m. (Tr. 831-832.) When Marcus repeated that he believed the " Had there been any prior mention of "impasse," especially in con- junction with an intent to implement the new job classifications, I find that it would have been noted in at least one of the two contemperaneous notations in evidence herein. I have also relied on Douglas' testimony, the failure to produce Douglas' bargaining notes, and other evidence, ele- ments which lead to the same conclusion parties to be at impasse, Bucella became angry and ques- tioned Marcus, as above noted, why in view of Bucella having canceled appointments that day, Marcus had not called the impasse at the very opening of the collective- bargaining session on the morning of May 5 (Tr. 831- 832; 806-807). Bucella then repeated the question to Marcus: "Are you flexible?" According to the credited recollection of Glenita Dudley, at 3:01 p.m., Marcus told Bucella: "No" (he was not flexible) and then stood up, picked up his papers, and left the room, with the other respondent ne- gotiators following him. This testimony, in sum, demonstrated that Bucella said that there was no impasse; that Bucella questioned Marcus as to why they were at an impasse in view of the fact that the Union was still flexible; and that when Marcus said that they were at impasse on COLA, pen- sions, wages, and holidays, Bucella asked Marcus wheth- er, if they passed these problems, there would be a con- tract. It was at this point that Marcus and Bucella got into their shouting match and that Respondent' s bargain- ers, including Marcus, left the room. Vickie Hoover's credited recollection is that, with Marcus and Respond- ent's bargainers leaving the room, Bucella told the Fed- eral mediator Kenealy to wait and then Bucella followed Respondent's bargainers out of the room. The evidence (R. Exh. 8(b), p. 31; and the credited tes- timony of Glenita Dudley) shows that after Bucella fol- lowed Marcus out of the room, Marcus, together with the Federal mediator, apparently agreed to remain at the bargaining site to enable the Union to further caucus and come up with a new proposal. There is no question but that this latter event occurred about 5:20 p.m. About 5:20 p.m., the negotiating teams met again in the presence of the Federal mediator. The Union made a modified proposal wherein if offered to keep the insur- ance program intact except that the employees would pay for any future increase of premiums. In essence, the Union adopted Respondent's holiday proposal; froze wages and COLA; and substantially adopted Respond- ent's "production interference proposal" (no-strike, no- lockout, etc.). The Union also made changes so that there would be some job combinations and changes in classifications. Following Marcus' receipt of further clar- ification of this union proposal, about 6:35 p.m., Marcus returned to the bargaining table, after having consulted his bargainers, and told the Union that Respondent was rejecting the counterproposal because the Union had not gone far enough with regard to both production interfer- ence and job combinations. Marcus stated further that there would be "no way" that there would be any wage increase or upward COLA adjustment in the first 2 years of the agreement. According to both Smitson's and Whitehead's contem- poraneous notes and Glenita Dudley's credited testimo- ny, it was at this point that Bucella told Marcus that this was the "first time" that Marcus had mentioned a freeze for 2 years. Bucella again asked Marcus whether Re- spondent was claiming an inability to pay . Marcus again answered that it was not an inability to pay but Respond- ent's unwillingness to pay and that if Respondent pleaded PRC RECORDING CO. an inability to pay, it might have to show its books to the Union which it was unwilling to do. The Union did not at any time request production of Respondent's fi- nancial books and records. When Marcus further said that Respondent rejected the Union's idea of building new employee wage rates to the rates of the current employees and that such a proc- ess was neither necessary nor desirable , Bucella an- swered that he would not let his rejected counterpropos- al (with regard to having the wage rates of new employ- ees rise to the level of existing employees) "stand in the way of a contract." The parties then caucused. The Union returned about 7:16 p.m. (R. Exh. 8(b), p. 33). Bu- cella asked Respondent for information regarding the combination of jobs and whether an employee perform- ing a combined job would be qualified for all of the jobs required to be performed under the job combinations. Respondent's vice president Spear answered that Re- spondent would have to train anyone who had not done the job before . Marcus assured Bucella that if there were problems with the combined jobs, the Union could come to Respondent and point out the problems and the issue would be given consideration. Thereafter, Bucella and Marcus met in the hallways and other places in the motel outside the presence of both bargaining commitees. Sometime about 8 p .m. on May 5, Respondent's guards at the plant, pursuant to their normal practice, com- menced telephoning employees to come to work at 6:30 a.m. the next day. In these telephone calls, employees were told to report in terms of the newly combined jobs in the newly implemented labor grades, the description of which was foreign to the employees. This resulted, commencing about 8 p.m., in employees telephoning the union negotiating committee members at the motel, and even Respondent's negotiating team members, with regard to the meaning of the new labor grades and the strange jobs to which they were requested to report. The record is unclear what the employees were told. The Federal mediator, Bucella, and Marcus thereafter, during the night of May 5, met from time to time and through the mediator reached such a point in bargaining that around 1 a.m., on May 6, Marcus returned to his bargaining team and told them that, with a few conces- sions, the parties could have a contract. It is undisputed that about 2:30 a.m. on May 6, the bargaining comittees were reconvened and told by Marcus and Bucella that a tentative agreement had been reached. Bucella and Marcus shook hands on the agreement . Before reconven- ing the bargaining committees, but after the tentative agreement was reached, Bucella agreed with Marcus not to go through the summary of their agreement because they were both extremely tired. Other testimony states that the bargaining committees were "half-asleep." Marcus returned to Chicago the following day and dic- tated to Respondent's secretary a summary of the tenta- tive agreement of May 6. The tentative agreement ap- pears in evidence (G.C. Exh. 20) and, although there are various elements of compromise in the agreement, one of the elements which remains substantially unchanged from Respondent's March 12 noneconomic offer was the original job combination offer. 629 G. Implementation There is no disagreement that when the committees re- convened about 2:30 a.m. on May 6, Bucella asked Marcus whether, in light of the existing tentative agree- ment, Respondent was going to implement the agree- ment. Marcus told Bucella that he would not implement the agreement except that the new job combinations were already in the computer and that the employees had already been recalled pursuant to the new job com- binations for the next morning's work. Marcus told Bu- cella that it was too late to "unscramble the egg" of the recall of employees in the new job combinations. As above noted, there had been a series of phone calls, com- mencing at 8 p.m. on May 5 from employees concerning the confusion over their being told to report to new jobs at new plant locations involving new labor grades. Marcus told Bucella that in light of the confusion result- ing from the implementation of the new job combina- tions, it would be wise if the members of the umon com- mittee went to the plant at the beginning of the 6 a.m. shift to tell the incoming employees of the tentative agreement, and that the details of the tentative agree- ment would be explained to them at the May 8 union ratification meeting (the following Saturday). What is hotly contested among the witnesses was what Respondent's bargainers told the union negotiating team to actually tell the arriving employees on the next mom- ing's shift. Thus, Marcus testified (Tr. 201): I said to Mr. Bucella . . . that we could not "un- scramble the egg" of the implementation of the job classification system. . . . I thought it would be helpful if the committee would come in to calm down the employees to assure them that while there had been changes implemented, they should not be concerned about those changes, that they should work, and that on Saturday everything would be ex- plained to them in the context of the tentative agreement that had been reached by the parties. [Emphasis added.] Plant Manager Douglas testified, at first (Tr. 1440- 1443), that Marcus told the union bargaining committee that it was "impossible to unscramble the eggs because they were in the computer and that if the plant was going to work tomorrow , we have to go as it was." Douglas also recalled that Marcus told Bucella that "the Union bargaining committee go to the plant and explain to the people that we had an agreement, that everything would be explained to them on Saturday ." Douglas said that the committee agreed to go to the plant and tell the employees of the agreement and that everything would be explained on Saturday and to "go ahead and do their assigned jobs." In answer to the question of whether anything was said about explaining to the employees about the new job combinations (Tr. 1440), Douglas said that Respondent (it is unknown whether this was Douglas or Marcus ac- tually speaking) told the Union : "Don't worry about job combinations. It will be explained to you on Saturday." 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Emphasis added.) With regard to whether the employ- ees were told to do only their old jobs, Douglas said there was some discussion on that point and that Marcus told the union committee to tell the arriving employees that they had an agreement and "to do the job that they were assigned." When pressed, however, Douglas specif- ically denied that the employees were told to disregard the new classifications resulting from the newly institut- ed job combinations and merely to do their old jobs (Tr. 1441-1442). It is also uncontradicted in Douglas' testimo- ny that the new job combination system would result in employees being recalled to perform jobs out of their old seniority and into jobs which they had either not per- formed before or were on their job selection forms (which either meant that they had at one time performed the jobs or that they believed themselves capable of per- forming them). Douglas testified that he told the union committee, after it had been reconvened, and after Bucella and Marcus announced the tentative agreement, that he "reit- erated my pledge that people would be given sufficient time to be trained, that we weren't interested in putting little old ladies off their job." Finally, Douglas testified that outside the presence of the union bargaining com- mittee he instructed Labor Relations Director Jewell to assign the employees as far as possible to their old jobs and not to force an employee into a "work refusal" situa- tion (Tr. 1442-1443). Although Labor Relations Director Jewell had re- turned to the collective-bargaining sessions at the motel prior to the reconvening of the committees, he was not questioned and did not testify with regard to what re- quests or instructions Marcus and Respondent's other bargainers made to Bucella and the union negotiating committee concerning the work to be done and jobs to be performed by the newly arriving employees on that morning's shift. But Respondent's cross-examination of Bucella elicited his firm recollection that Jewell told the union negotiators that the recalled employees could "ignore the computer" (Tr. 628). Union Vice President Whitehead's notes (G.C. Exh. 38) say nothing concerning implementation. Smitson's notes (R. Exh. 8(b)) carry the statement only that Bu- cella asked Marcus whether there would be implementa- tion and Marcus' reply is (R. Exh. 8(b), p. 34): I would suggest very strongly if it is possible for your committee or some people in the morning- my understanding that those affected (possibly 10, 7 or 8 people)-company representative and Union representative get together with these people. As opposed to the above enigmatic notes taken at 2:30 or 3 o'clock in the morning, Smitson testified that, while she was "about half asleep" (Tr. 1122), she recalled that "they" talked about implementation and that Marcus said that "we were supposed to go out to the shop so we could tell the people to go ahead and do their regular jobs, that those labor grades weren't supposed to mean anything yet" (Tr. 1122-1123). She further testified, ap- parently having reviewed her notes, that there were 8 or 10 employees affected by the job combinations and that the negotiating committees were supposed to tell them that "they were supposed to go in and work their regu- lar jobs" (Tr. 1123). Vickie Hoover testified that she recalled only that Marcus and Jewell asked the committee to go to the plant that morning, to go to work, and that nothing would go into effect until after the ratification meeting. Whitehead specifically testified (Tr. 7133): Well, they said that these new classes . . . had al- ready been fed into the computer, and that there was nothing they can do about that, but regardless of these being in the computer like they was .. . each employee would work . . . under their old labor grade, and all like the same as they had been. That's the reason that Mr. Jewell said that we would go out to the shop and tell the people, that he would tell his foremen and we would tell our people that just to disregard what had been fed into the computer, or what they had been told when they were given the telephone call, that their duties would not be changed, absolutely would not be changed, and just work like they had . . . until that time. 12 Union Committeeman Lathrop recalled that Marcus said that the guards had made a mistake in calling the employees into the new jobs and that the union negotiat- ing committee should go out to the plant and tell the people to go to work until the agreement was ratified (Tr. 764) and that Marcus said that the "people wouldn't be disciplined if they didn't show up; that they ought to just do their jobs, you know, do what they had been doing" (Tr. 765). Finally, Lathrop testified that it was his recollection that Marcus and Jewell said that nothing in the tentative agreement would be implemented until rati- fication (Tr. 768). Glenita Dudley, like Lathrop, testified (Tr. 837) that Marcus said that "the implementation would be stopped until the meeting on Saturday, which was May 8." The evidence shows that, whatever was said at 2:30 a.m., when the union negotiating team members later went to the plant at 6 a.m., they told the arriving em- ployees to forget about the new job combinations and to just do their old jobs. Lathrop testified (Tr. 769) that as the newly arrived employees approached him at the gate, he and the other negotiating committee members told them to go to work and to "do their job that they had been doing." Jewell recalled that Union President Capps told the employees arriving at the plant (Tr. 1920): "That they had a tentative agreement, that there is In substance, therefore, this Whitehead testimony does not contra- dict Douglas' testimony, above Whereas Douglas testified that he pri- vately instructed Jewell to put the employees into their old jobs as far as possible and not to create a `yob refusal" situation, Whitehead here is tes- tifying that Jewell, in any case, mentioned Douglas' instructions at the 2 30 a in. session There is no inconsistency between Whitehead's testimo- ny and Douglas' testimony All that Douglas said was that he did not publicly instruct Jewell to have the employees perform their old jobs What Whitehead testified to was that Jewell , rather than Douglas, actual- ly mentioned in conversations at the bargaining table at 2 30 a in the sub- stance of what Douglas evidently had privately told Jewell prior to that time PRC RECORDING CO. 631 had been a confusion on the labor grades, it would be explained to them at the meeting on Saturday, to go to work, everything would be explained to them at the meeting on Saturday." Employees who reported to work on the morning shift of May 6 corroborate the testimony of the negotiating committee members. The employees were told by the committeemen that they were to disregard what had been told to them on the phone and to do their "regular" jobs. (Boatman (Tr. 859); McFarland (Tr. 907); and Wilson (Tr. 934).) H. The Work Performed by Employees Recalled on the Morning of May 6 and 7 The General Counsel's witnesses credibly and consist- ently testified that they were called in and did jobs on a combined basis which, in part, differed from what their regular jobs had been on and before May 5. Boatman, the Union's shop steward, testified that notwithstanding that his regular job had been that of "material handler" and notwithstanding that as union steward, his job func- tion changed on a daily basis, one of the jobs he was as- signed to that day was that of a "packer." He had never performed a packing function prior to this time (Tr. 865- 866). He also testified that he observed other employees performing work different than their normal duties, in- cluding jobs which they had never performed. Included among these were Julia McFarland working as a catcher/boxmaker, Johnny Hunter performing ASM service, and Corena Gomez running the cryovac ma- chine. Julia McFarland's normal job was that of quality con- trol tester (Tr. 905). Her foreman instructed her to per- form in an entirely new labor grade (labor grade 71) as a "cryovac catcher." She testified that she had never per- formed this job before (Tr. 909) nor ever had any train- ing in it. On the next day, her foreman assigned her to work under a different foreman in ASM. She had done that work before but it was not her regular job (Tr. 911). During that week, she did not, during that week of work, perform her regular job (Tr. 911-912). Corena Gomez had never worked a cryovac machine before. Gomez, whose old job was that of an "automatic sleever," was told by her foreman on the morning of May 6 to start up the cryovac machine. Gomez told him that he was "crazier than hell because I didn't even know how to turn the thing on." The supervisor told her: "Don't worry about it. I don't know either. We'll learn together." Gomez then asked him: "Is there any way I could get hurt on this, like cutting-getting my hands cut off, or anything?" The foreman answered: "No, you won't get your hands cut off, but you can get them mashed, or burned, and that would be the extent of the [injury]" (Tr. 910-911). When Gomez asked him why she was being assigned to run the cryovac machine, the foreman told her: "Because your [old] machine and the cryovac machines have been combined into one labor grade" (Tr. 911-912). Inda Wilson, like Julia McFarland, a quality control tester, on May 6, 1982, was required to perform the duties of a catcher on the cryovac machine (Tr. 935) and on May 7 to work as a collator in the record finishing department. On May 7 she worked as a hand collator in the record finishing department. She did not perform her regular job. Alice Ladd testified that she was required to do jobs other than her normal job, which jobs differed even from those which appeared on her job selection form. Thus, she performed the job of breaking down boxes and also duties of a 12-inch sleever. Although she started that morning in her normal job as "catcher" doing boxmak- ing, her foreman assigned her to another job which was breaking down boxes. He thereafter assigned her to use a jack to move skids of records to the cryovac department. Commencing May 11 she was assigned to drive a forklift tow motor. Because she had never operated this ma- chine, on May 11, she inadvertantly caused the forklift to drop off the high-lo during operations. Respondent asserts that, at least for the most part, em- ployees under the new job combinations were assigned, though perhaps not to their regular jobs (e.g., Corena Gomez) to jobs which they had either performed before or which appeared on their job selection forms, i.e., jobs which the employees themselves said they were capable of performing. The General Counsel, however, points out, and I agree, that this distinction is immaterial be- cause under the new system, as implemented, an employ- ee would not only forsake doing his regular job (to be shifted to another job under the job selection form only in cases of layoff or emergency conditions), but would be required to normally perform several jobs which theretofore had been separately assigned to individual employees. This, according to the General Counsel, is itself an implementation of a "substantial change in the employees' terms and conditions of employment" (G.C. Br. 19). I agree. Respondent states that prior to the joint meeting on the morning of May 6, in a private meeting between Marcus, Bucella, and the mediator, Marcus told Bucella that if their agreement was rejected by the membership (at the ratification meeting of May 8) "we are back to square one," i.e., the original proposal being that of the previous morning, May 5 (Tr. 1829). Bucella denies any such conversation on the morning of May 6 and asserts that the only time that the "square one" conversation oc- curred was on April 30, prior to the first rejection by the union membership of Respondent's "final offer" of April 30. In view of the suggestion in Smitson's notes (R. Exh. 8(b), p. 35), I would credit Marcus' version if the matter was material. While Smitson's notes merely state that the mediator believed that such a statement was made on May 5, I believe that that statement is sufficient evidence of the fact and I would credit Marcus. I further credit Marcus' testimony that Bucella in fact told Marcus that he would present the May 6 agreement "fair and square" and that he would "advise that they accept it" (Tr. 475).13 is I have already, on the other hand, mentioned instances of incredibil- ity in the testimony of Marcus, specifically with regard to his alleged use of the word "impasse" about 10.30 am on May 5 I found that he did not use the word at that time and I draw an adverse inference concerning the reason Marcus testified that he did so to explain the initiation of a Continued 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. The May 8 Ratification Meeting Marcus told the union committee to go to the plant because the arriving employees might be confused (Tr. 192) and that he did not want any intervening event, during the next 2 days, to defeat ratification of the agree- ment that had been reached on May 6 (Tr. 200-201). Contrary to the Charging Party' s suggestion (Br. 31), Bucella at the May 8 ratification meeting did not recom- mend that the tentative agreement be accepted. In fact, he told the employees that it was entirely up to them.'' It is undisputed that the union membership, at the con- vened May 8 ratification meeting, overwhelmingly re- jected the two agreements tentatively agreed to by Bu- cella and Marcus on the early morning of May 6. At the May 8 ratification meeting, Union President Capps rec- unilateral change in the terms and conditions of the employees ' employ- ment under the then expired collective -bargaining agreements Similarly, I was concerned, for the purposes of resolving credibility issues, with the direct contradiction between Marcus and his labor relations director Robert Jewell concerning Marcus' participation in the creation of the terms of Respondent's April 27, 1982 economic offer to the Union Thus, Marcus testified (Tr 208-209) that he did not participate in the formula- tion of the figures in Respondent's April 27 economic offer and he did not know who was involved in the formulation of those figures He fur- ther testified that it was George Douglas who gave him the contours of the permissible economic offer Jewell , however, testified (Tr. 261-263) that Douglas, Vice President Spear, Richard Marcus, and he discussed the various elements (the Compton, California pay levels, Respondent's economic difficulties, and the area wage survey) which were the basis for the economic offer and then this group came up with the figures for the April 27 offer. With such elements of lack of credibility , I view some of Marcus' testimony as self-serving and necessary to support his position, especially on the "impasse" question, supra, and the ambiguous state in which the question of the implementation of job combinations was left, mfrs. However, I view Bucella's credibility in about the same light He com- pletely misconstrued and confused the chronology of the May 5 and 6 bargaining sessions with Respondent . He placed the timing of the ques- tion regarding the Respondent 's "inability to pay" at the April 27 meet- ing rather than, as it quite clearly appears, at the May 5 meeting In addi- tion, when first questioned Bucella stated that Marcus and Jewell told the committee that, under the tentative agreement, the newly arrived em- ployees would have to perform both their old and their combined jobs (Tr. 628). He then denied that Jewell and Marcus told the committee that the employees could perform their normal functions until ratification (Tr 628). He thereafter testified that Marcus told the union committee that the employees could ignore the computer (Tr 628) He then resolved this dilemma by testifying that Jewell stated that the computer could be ig- nored as a later statement than his statement that the employees could and would have to perform three or four jobs in the newly combined job classifications. I found this resolution to be facile and incredible notwith- standing my conclusions, below, that the matter, at best, was left so am- biguously that the union negotiating committee could well come away from the May 6 meeting with the reasonable belief that, inter alia, Re- spondent told them that the employees could perform their old jobs iA Respondent makes much of the fact, which I have found, that Bu- cella and Marcus had in fact shaken hands on May 6 on the tentative agreement and that such an act, under the usages of the Labor Relations "trade," is tantamount to Bucella's agreement to recommend to the mem- bership the ratification of the tentative agreement , an act on which he reneged. Even if Bucella recommended against ratification of the agree- ment, which he did not do, it would , it seems to me, be a matter strictly between Respondent and the Union on a nonstatutory issue As a matter of statutory interpretation , there was nothing binding under the National Labor Relations Act on Bucella to "keep his word"-if that was the nec- essary implication of a handshake-to Respondent in Bucella's recom- mendation to the membership Moreover , there was a question of wheth- er Bucella would be obliged to recommend ratification in the face of changed circumstances . the unexpected , contrary intervening events of May 6-7, the assignment by Respondent of employees to new jobs under the job combination implementation prior to ratification ommended that the contracts be voted down. Bucella went through the contracts on an item-by-item basis and certain employees made statements and asked questions. Johnny Jones, according to Vice President Whitehead, told the membership that his foreman had implemented the new classifications before ratification and had told him that his new job would include all the classifications, that the tentative agreement was in effect at that time, and that Jones would have to do whatever the foreman ordered. Julia McFarland also mentioned that she was doing different jobs. Richard Lathrop recalled that em- ployee Ruby Ward asked what would happen if she could not do some of the combined jobs or was disquali- fied from doing one of the jobs. Donna Smitson testified that after Bucella described the terms of the contract, older women employees said that things were not work- ing out the way they were supposed to. In short, the records division voted against the records division tenta- tive agreement by a vote of 105 to 24; and the tapes divi- sion voted against the tapes division tentative agreement by a vote of 19 to 2. About 8 p.m. on May 8, Bucella telephoned Douglas and told him that the May 6 tentative agreement had been rejected by the union membership primarily due to Respondent's early job combination implementation. Douglas told Bucella not to discuss it over the phone but at a meeting . Douglas then telephoned Marcus who at- tempted then to contact Bucella on May 9 but finally reached him on May 10 (Monday). Bucella told Marcus that Respondent had caused the rejection by implement- ing the contract too early. Marcus replied that the Re- spondent did not implement the contract but only put into effect the "job combination recall that we told you we could not unscramble" (Tr. 1853-1854). Marcus then told Bucella that Respondent was then going to have to return to and implement its original proposal in view of the May 8 union membership rejection of the May 6 ten- tative agreement. Bucella credibly testified that he told Marcus that rather than Respondent implementing the May 5 offer, that Bucella was returning to Richmond, Indiana, and would meet with Marcus on Tuesday or Wednesday (May 11 or 12) to see if they could resolve the matter. When Marcus said that there was no need for a meeting and that the parties were at an impasse, Bu- cella replied that they were not at an impasse and that it was just a misunderstanding because of Respondent's im- plementation on May 6 and 7 which, Bucella said, was the main reason for the rejection and that the parties could possibly clear it up by sitting down and talking. Bucella asked Marcus not to implement but Marcus told him that there was no need for a meeting. Later on the same date, May 10, Marcus sent Bucella a telegraphic confirmation of their prior phone call in which he stated that in view of the rejection, Respond- ent was reverting to the morning, May 5 proposal. He also stated that the parties were at impasse, that Re- spondent intended to implement the terms of the May 5 proposal effective with the start of the first shift on Tuesday, May 11 (the next morning), and that he was willing to resume negotiations with a view toward reach- ing an amicable agreement if the Union would communi- PRC RECORDING CO. cate "any meaningful proposed change in the Union's po- sition." Contrary to any suggestion by Bucella that Respond- ent implemented its May 5 offer in entirety on May 6, 1 conclude that, except for the new job combinations, the implementation did not occur until May 11. There was no credible contradiction of Jewell's testimony that prior to the morning of May 11, employees were covered by the same wage rates, insurance, pensions, holidays, and vacations as were in effect in the expired agreements. Following the May 10 Marcus telegram, Jewell dis- tributed to employees letters in both the tape and records divisions (G.C. Exhs. 24 and 25) notifying them of the new terms and conditions of their employment following the union membership's rejection at the May 8 ratifica- tion meeting. The new terms and conditions were effec- tive at 6:30 a.m., Tuesday, May 11. Jewell testified that the same letter, now dated May 11, had been typed up on May 5, 1982, with anticipated distribution on May 6, but that there had been no such distribution in light of the further collective-bargaining session of May 5. Among other statements by Respondent in these letters to its employees appear the following in the tape division (and a similar statement in the records division): 11. The job classification system has been revised. We presume that employees will be qualified to per- form any and all jobs that were merged together into their new classifications. However, the Compa- ny may have to train employees on those duties en- compassed in the new job which the employee has not previously performed. J. The Union 's May 12 Strike Vote and May 13 Strike Respondent implemented in full its March 12 (April 2) and April 27 proposals on Tuesday, May 11. The Union's bargaining committee met on May 12, 1982. It had already received authority from the membership to call a strike . It voted to call a strike commencing the next day, May 13 . The evidence is uncontradicted that the reasons for the strike were the 30-percent cut in pay and Respondent's unwillingness to continue the terms of the existing expired agreement (Tr. 721-724), because Respondent implemented its proposal of May 5 on May 11, and particularly because of the job combinations (Tr. 842; 844-845, "the committee decided that they didn't think that the people could live with those job combina- tions and the low wages"). Donna Smitson, who was present at the strike vote, testified credibly that when the negotiating committee met to vote on the strike question , it discussed the effect of Respondent's contract implementation on older women employees : the job combinations were "putting the older women on tow motors and [equipment] they couldn't handle"(Tr. 1126).15 is This particular strike vote discussion may have been an allusion to the experience of employee Alice Ladd, above, who, a boxmaker in her regular job, was assigned various other jobs on May 6 and 7 and, finally on May 10 and 11, assigned the job of running a forklift which she had never operated before Her inexperience resulted, on May 11, the day before the strike vote, in having the fork drop off the tow motor high-lo (Tr 961-962) 633 Of the apparently six members of the negotiating com- mittee voting on the strike, the vote was 5 to I in favor of the strike (Tr. 1125). Smitson's testimony is not disput- ed that Plant Manager Douglas, at one of the negotiation sessions, had remarked that there were "no soft jobs at PRC" and if employees could not "handle them, couldn't move them up and down, they would go out the door" (Tr. 1126). The strike started on May 13, 1982, and con- tinued at least through this writing in October 1983. All employees in both units ceased to work. K. The Collective-Bargaining Session of May 12, 1982 The Federal mediator, perhaps in possession of a copy of Marcus' May 10, 1982 telegram to Bucella, convened a meeting of the parties on May 12. At the meeting, which lasted approximately 1 hour, the mediator stated that he wished to get the parties "back on the track." Bucella stated that Respondent had implemented what it said it would not but Marcus answered that he had told Bucella that Respondent could not "unscramble the egg" and that the "only portion that we implemented was the recall pursuant to the revised job classifications" (Tr. 1857). No agreement occurred on that day nor after a subsequent bargaining session of June 15, 1982 (R. Exh. 8(b), p. 37-38). L. The Union 's Offer (June 28) on Behalf of the Striking Employees to Return to Work On June 28, 1982, the Union sent a telegram to Re- spondent (G.C. Exh. 26):16 On behalf of all employees in both bargaining units (Tapes and Records) represented by Local 2043 IBEW you are officially notified of their uncondi- tional application to return to work immediately. Please advise as to when employees should report. On June 29 Respondent answered with a telegram (G.C. Exh. 27) which, inter alia, provided: We acknowledge receipt of your telegram and hereby accept your unconditional offer to return to work. Although we presently have a staff of perma- nent employees sufficient to handle our production needs, you may be assured that your members will be returned to active employment as soon as work becomes available for them to perform. The Union received Respondent's telegram on the after- noon of June 30. On that day, Bucella told Industrial Re- lations Director Robert Jewell that "the strike was not over until the employees were to be recalled to work; and that it would be very unlikely that an employee 16 The charge in Case 25-CA- 14508 was filed and served on May 11, 1982 The complaint issued on June 25 , 1982, and alleges, inter aha, viola- tion of Sec 8(a)(1), (3), and (5) of the Act by virtue, in substance, of Re- spondent's allegedly unlawful implementation, without impasse, of the combined job classifications on May 6 and of other economic elements of the contract on May 11, 1982 The General Counsel also alleges that these actions, taken in retaliation for the membership 's rejection of the contract proposal made by Respondent, also constitute a violation of Sec 8(a)(l) and (3) of the Act 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would return if it was just a recall one at a time over a period of several months and that the strike could be over depending on the number of people that they do recall" (Tr. 519). Bucella made similar comments to the media (R. Br. 95). He said that if it was Respondent's in- tention of "piecemealing this recall ," recalling the em- ployees one or two at a time, then the strike would still be on (Tr. 464). Nevertheless, on July 13, the Union sent a further tele- gram to Respondent: On behalf of all employees in both bargaining units (Tapes and Records) represented by Local 2043 IBEW we reaffirm and continue their unconditional application to return to work immediately as refer- enced by our previous telegram of June 28, 1982. Please advise if there was any change in your posi- tion as referenced by your response and telegram dated June 30, 1982. Offers from Respondent to reinstate records division employees began on July 27 with a reinstatement offer to Union President Capps; offers to reinstate tape division employees began on July 23 (R. Exhs. 58 and 59). By January 1983 Respondent had extended offers of rein- statement to all of the strikers but only two returned to work. In the meantime, however, as discussed hereafter, Respondent had discharged or would thereafter dis- charge 33 employees for alleged misconduct relating to strike and picketing activities. Respondent rescinded nine such discharges. There is no dispute that the reinstatement offer by Re- spondent to the strikers and to the employees whose dis- charges had been rescinded was on terms and conditions of employment reflected by Respondent 's unilateral im- plementation on May 6 and 11, 1982 (Tr. 2167), rather than on the terms and conditions of employment of the expired contract which terms and conditions had been in effect on and before May 5, 1982, and, indeed, at all times prior to May 11, 1982. Thus, the employees were offered reinstatement at the pay levels, job combination levels, and other terms and conditions of employment which existed pursuant to Respondent's unilateral imple- mentation of May 5-6 and 11, i.e., the March 12 and April 2 noneconomic offers; and the April 27 economic offers. M. Discussion and Conclusions 1. Alleged violation of Section 8(a)(5) Among the most significant 8(a)(5)-associated issues are: (1) whether, as Respondent asserts, an impasse exist- ed on May 5, 1982, and, if so, when; whether any such impasse was "broken" and, if so, when; (2) whether fol- lowing and because of any such "impasse," Respondent unilaterally implemented its job combinations "morning offer" of May 5, 1982, and was lawful in so doing; (3) assuming, arguendo, that Respondent might not lawfully unilaterally implement, on and after May 5-6 , 1982, its job combinations offer of May 5, was it nevertheless privileged to do so because of the Union's waiver or ac- quiescence in any such otherwise unlawful unilateral act; (5) assuming, arguendo, that the Union did not authorize, acquiesce in, or waive Respondent's otherwise unlawful unilateral implementation of the new job combinations, was Respondent nevertheless not guilty of any violation of the Act because there was no substantial impact on unit employees of this unilateral change; (6) if Respond- ent's May 5-6 limited implementation of its May 5 offer of the new job combinations procedure was unlawful, was its May 11 full implementation of its contract offer nevertheless lawful ; (7) if either the May 5-6 limited or the May 11 full implementation was unlawful, were either or both of these actions a cause of the Union's strike commencing May 13, 1982, thereby creating an unfair labor practice strike ; (8) did the Union thereafter, on June 28 and July 13, 1982, unconditionally offer, on behalf of the striking employees, to have them return to work; (9) did the terms of Respondent 's response to the Union's offers (to have the employees return to work) constitute an unlawful rejection of the offers , thereby causing the unlawful termination of the strikers; and (10) did Respondent's offers of reinstatement terminate Re- spondent's backpay obligations , if any, to the striking employees and to those strikers who had been dis- charged and offered reinstatement. Certainly, the primary question presented in this por- tion of the case is whether, in the first instance, as Re- spondent alleges, about May 5, 1982, or, for that matter, at any time, there existed an "impasse" in bargaining be- tween the parties . For, while good-faith bargaining is a prerequisite to reaching bona fide impasse, NLRB v. Ble- vins Popcorn Co., (D.C. Cir. April 21, 1983), citing NLRB v. Big Three Industries, 497 F.2d 43 , 48 (5th Cir. 1974), and NLRB v. Tomco Communications, 567 F.2d 871, 881 (9th Cir. 1978), if there is no impasse at all, it is unneces- sary to decide whether any alleged impasse was caused by bad-faith bargaining, Huck Mfg. Co. v. NLRB, 693 F.2d 1176 (5th Cir. 1982). If, on the other hand, an al- leged impasse is the result of bad -faith bargaining, the impasse will not be recognized for statutory purposes and the Board refuses to even pass on its legal extistence. Shipbuilders v. NLRB, 320 F.2d 615, 621 (3d Cir. 1963); Pillowtex Corp., 241 NLRB 40 (1979), enfd. 615 F.2d 917 (5th Cir. 1980). It is the Board's obligation to protect the process by which employers and unions may reach agreements with respect to terms and conditions of employment . Sea Bay Manor Home, 253 NLRB 739, 740 (1980); NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 ( 1967). In Old Man's Home of Philadelphia, 265 NLRB 1632 (1982), the Board, quoting from the basic authority in this area, NLRB v. Katz, 369 U.S. 736, 743 (1962), notes that the Supreme Court held: A refusal to negotiate in fact as to any subject which is within § 8(d) and about which the union seeks to negotiate, violates § 8(a)(5) though the em- ployer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. We hold that an employer's unilateral change in con- ditions of employment under negotiations is similarly a violation of § 8(a)(5) for it is a circumvention of the PRC RECORDING CO. duty to negotiate which fustrates the objective of § 8(a)(5) much as does a flat refusal [emphasis added]. An employer has a statutory obligation to continue to follow the terms and conditions of employment govern- ing the employer-employee, as opposed to the employer- union, relationship in an expired contract until it has bar- gained to impasse with the collective -bargaining repre- sentative of its employees , unless the union fails to timely request bargaining following the employer's notice of an intention to modify . NLRB v. Haberman Construction Co., 618 F.2d 288, 302-303 (5th Cir. 1980); NLRB v. An- tonio's Restaurant, 648 F.2d 1206, 1214 (9th Cir. 1981); Bay Area Sealers, 251 NLRB 89 (1980), enf. denied 665 F.2d 970 (9th Cir . 1982); Hen House Market, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970). Even if an impasse is reached, a unilateral change cannot be made unless it is reasonably encompassed within the employ- er's preimpasse proposal . Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd . sub nom. Television Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). As the court notes in Taft, although some bargaining may go on even in the presence of a deadlock , it is a "fundamental tenet of the Act that even parties who seem to be in implaca- ble conflict may, by meeting and discussion, forge first small links and then strong bonds of agreement." Thus, an employer may lawfully institute unilateral changes notwithstanding that there are some discussions if the parties, in fact, are in deadlock and, as further stated in Taft, there is "no realistic possibii,ty that continuation of the discussions as of that time would have been fruitful." 395 F.2d at 628 . Moreover, the court, in Taft, in enforc- ing the Board's conclusion that impasse existed, notes that an employer in making a unilateral change , cannot be saddled with a conclusion that it is bargaining in bad faith because it gives the union merely an hour's notice of the intended change. The question of adequate notice of the change depends on the circumstances and an em- ployer that has so exhausted bargaining that it would make a lawful unilateral change is not to be put under a "universal requirement of a duty to bargain about timing or other specific aspects of a change" within the ambit of proposals already made and rejected. Cf. Stone Boat Yard, 264 NLRB 981 (1982). Any such unilateral change, of course, may not be greater or more favorable to the employees than the offers previously extended to the union at the bargaining table . NLRB v. Crompton-High- land Mills, 337 U.S. 217 (1949). In this regard, when an employer has been dilligent and earnest in its efforts to engage in bargaining , the union may not by avoidance, delay, or subterfuge prevent the employer from imple- menting unilateral changes in the terms and conditions of employment of which the union has had prior substantial notice. AAA Motor Lines, 215 NLRB 793 (1974); A-V Corp., 209 NLRB 451 ( 1974). However, just as a labor organization may not, by procrastination and failure to act, prevent changes indefinitely, even during the hiatus period between contracts , an employer may not lawfully act in bargaining so as to merely set the stage for unilat- eral action. Cf. R. A. Hatch Co., 263 NLRB 1221 (1982), with A-V Corp., 209 NLRB at 455. In A- V Corp., supra at 453, the Board notes that the Katz rule is not absolute 635 and there are circumstances which the Board accepts as excusing or justifying unilateral action . These would in- clude, after timely notice by the employer , the union's waiver or acquiescence, by inaction or otherwise, in the employer's action, U.S. Lingerie Corp., 170 NLRB 750, 752 (1968); A-V Corp., supra; Stone Boat Yard, 264 NLRB 981 (1982). In the absence of impasse , however, it is established that compelling economic considerations do not justify an otherwise unlawful unilateral act, NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338 (5th Cir. 1980), cert . denied 449 U .S. 889 (1980). We are then left with the underlying question of what is an impasse . The Board has defined impasse as that point in time of negotiations when the parties are war- ranted in assuming that further bargaining would be futile. Pillowtex Corp., 241 NLRB 40, 46 (1979); Cal-Pa- cific Furniture Mfg. Co., 228 NLRB 1337 (1977); Alsey Refractories Co., 215 NLRB 785 fn . 1 (1974); Builders In- stitute of Westchester County, 142 NLRB 126 (1963). Both parties must believe that they are at the end of their rope. Huck Mfg. Co. v. NLRB, 693 F.2d 1176 (5th Cir. 1982), petition for rehearing denied April 8, 1983. The burden of proof to show impasse on a particular date is on the party claiming the impasse , i.e., here, on Respond- ent, Baytown Sun, 255 NLRB 154, 157 (1981). The Board and courts have had long experience with sophisticated bargaining tactics including situations where both sides merely maintain hard positions and each indicates to the other that it is standing pat. The Board has noted that such bargaining stances are the rule in bargaining and not the exception. Of importance in de- termining the existence of impasse is whether the parties continue to meet and negotiate . Huck Mfg. Co., 254 NLRB 739, 754 (1981). While it is true that the number of negotiating sessions is not controlling, generally, the more meetings, the better the chance of finding an im- passe. Fetzer Television v. NLRB, 317 F.2d 420 (6th Cir. 1963). Yet this does not seem to be a crucial issue since the Board has found no impasse in the face of 14 bar- gaining sessions, Caravelle Boat Co., 227 NLRB 1355, 1356 (1977), but found impasse in a case involving 23 collective-bargaining sessions, George Banta Co., 256 NLRB 1197 (1981). The use of words like "impasse" or "deadlock" by the parties, even relating to overall issues , does not necessari- ly imply that future bargaining would be futile . Builders Institute of Westchester County, 142 NLRB 126, 127 fn. 2 (1963). The determination of whether impasse has been reached, a determination of the mental state of the par- ties and thus a highly subjective inquiry, Huck Mfg. v. NLRB, supra at 1176, is a strictly factual judgment, Bay- town Sun , supra, and bargaining devices or scare words such as "impasse" or "deadlock" used by the parties are legal conclusions not binding on the Board. Impasse should not be mechanically inferred because the parties have failed to reach complete agreement after some spec- ified number of bargaining sessions or whenever one party announces that his position is henceforth fixed and no further concessions can be expected , Builders Institute of Westchester County, supra at 127 . Moreover, a good- faith impasse may be waived by a change of position, 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Langlade Veneer Products Corp., 118 NLRB 985, 988 (1957); Pillowtex Corp., 241 NLRB 40 (1979); or by con- tinuous or further bargaining, Good GMC, Inc., 267 NLRB 583 (1983); Pillowtex Corp., ibid. As the court notes in Gulf States Mfg. v. NLRB, 704 F.2d 1390, 1399 (5th Cir. 1983): "Anything that creates a new possibility of fruitful discussion (even if it does not create a likeli- hood of agreement) breaks an impasse . . . [including] bargaining concessions [sic], implied or explicit." The above observations constitute a gloss on the gen- eral criteria for determining impasse and its consequences as set forth in Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968), in which the Board has held: An employer violates his duty to bargain if, when negotiations are sought or in progress, he unilateral- ly institutes changes in existing terms and conditions of employment. On the other hand, after bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably com- prehended within his pre-impasse proposals. Whether a bargaining impasse exist is a matter of judgment. The bargaining history, the good faith of the parties of negotiations, the length of negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemperaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. As noted in Caravelle Boat Co., supra, 227 NLRB at 1357, it is "axiomatic that unilaterally changing the method of recalling employees is violative of the Act" (unilateral change in recalling employees according to seniority); and while otherwise unlawful unilateral acts may be justified in certain circumstances , including waiver of acquiescence by the Union, A-V Corp., supra, 209 NLRB at 453; Dilene Answering Service, 257 NLRB 284, 285 fn. 6 (1981 ), a waiver of bargaining rights by a union will not be lightly inferred and must be clearly and unequivocally conveyed, Caravelle Boat Co., supra, 227 NLRB at 1358;17 Kroehler Mfg. Co., 222 NLRB 1269, 1270 (1976); and, in particular, silence does not constitute a clear and unequivocal manifestation of a waiver of un- lawful unilateral action. Caravelle Boat Co., supra at 1358, citing J. H Bonck Co., 170 NLRB 1471 (1968), and Bierl Supply Co., 179 NLRB 741 (1969). Of particular relevance here is the rule that the Union's failure to protest the unilateral change does not constitute "acquiescence" where the employer's decision to make the unilateral change has already been reached or, particularly, where it has been implemented, thus making any protest by the Union futile. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1084 (1st Cir. 1981); Caravelle Boat Co., supra at 1358, citing Insulating 17 Member Walther, dissenting, on the ground that union inaction demonstrated a waiver Here , the Union's prompt filing of the charge on May 11, 1982, for May 5-6 conduct would bung the matter outside Member Walther's dissent. Fabricators, 144 NLRB 1325, 1332 (1963); and the unilat- eral alteration of a mandatory subject of bargaining during negotiations, thus altering the status quo ante, and presenting the Union with a fait accompli, must necessar- ily obstruct meaningful bargaining. Ladies Garment Workers v. NLRB, 463 F.2d 907, 919 (D.C. Cir. 1972), Allied Products Corp, 218 NLRB 1246 (1975). Moreover, when charges of unfair labor practices are filed shortly after the alleged unlawful unilateral changes, such union action further rebuts an inference of waiver. Caravelle Boat Co., supra at 1358. Such cases are distinguishable from those where the union receives timely notice of a change and fails to demand bargaining. Clarkwood Corp., 233 NLRB 1172 (1977); Charlie's Art Co., 267 NLRB 764 (1983); U.S. Lingerie Corp., supra. In the recent Huck Mfg. Co. v. NLRB, 693 F.2d 1176 (5th Cir. 1982), the court noted, in finding absence of im- passe, that (a) although the employer rigidly adhered to many of its positions, it repeatedly asserted that it was willing to discuss them; (b) the union's chief negotiator testified that he never felt the parties were at an impasse; (c) for an impasse to occur, neither party must be willing to compromise; (d) the presence of a Federal mediator reenforces the inference that negotiations were continu- ing at that time; and (e) some weight must be given to the fact that the parties had met on only six occasions and in only four of them was there actual bargaining. Moreover, (f) the court found no impasse even in the face of the union's striking in rejecting Respondent's "final offer." 2. Recapitulation of the evidence on bargaining of May 5-6 As a preliminary matter, it must be noted that Re- spondent, at least since the early part of 1980, had noti- fied the Union, through posting of notices, arbitrations, strikes, and other manifestations, of Respondent's interest in gaining greater productivity from its employees, there- by ridding Respondent's operations of rigid, contractual- ly defined job categories, whereby it took four employ- ees to move one skid of material. Even here, however, at the Union's insistence, at least in a minor "breakout" of two labor grades which Respondent had originally insist- ed on combining, Respondent showed some flexibility. But Respondent generally was insistent on the necessity for a substantial combining of jobs so that one employee would be obligated to do more than one prior job. The Union was fully conscious of the Respondent's particular desire for job combinations and was opposed thereto since it would cause loss of jobs for its unit members. Thus, Bucella is quoted as having told Marcus , late in the evening of April 30, in response to Respondent's final proposal, that the Union realized the "number one big item is combination of job classifications . . . [and we] will not be saddled with a 3-year agreement such as you propose" (R. Exh. 8, p. 22). Respondent, at this point, late on April 30, did not urge the existence of impasse or unilaterally implement any of its proposals. Nor did it do so when Bucella said he would tell the membership he was against Respondent's final offer; nor on the next day when, following Bucella's recommendation of rejection, PRC RECORDING CO the union membership, on May 1 , 1982, unanimously voted the rejection of Respondent 's "final offer" of April 30 (23 to 0 in the tape division; 146 to 0 in the records division). Rather, immediately after the Union 's May I rejection of Respondent's April 30 offer, Marcus telephoned Bu- cella and requested immediate further bargaining to at- tempt to gain a collective-bargaining agreement. Al- though Marcus desired a meeting immediately following the May 1 rejection , Bucella told him that he could not do so because of prior business appointments but, finally, they agreed on a meeting on the morning of May 5. That Respondent, on April 30, had admonished the Union that the parties were back to "square one" in bargaining and that they would "start from scratch" with Respondent's March 12-April 2 noneconomic offers and the April 27 economic offers is not necessarily inconsistent with Re- spondent's desire to reach a contract. I reach this conclu- sion notwithstanding that Respondent was regressing to its most primitive bargaining positions and notwithstand- ing that sometime after Marcus telephoned Bucella on May 1, but prior to the reinstitution of bargaining on May 5 , Respondent had apparently established a May 5 deadline for any new agreement and was fully prepared to thereafter immediately unilaterally implement on May 6 its March 12-April 2, April 27, economic and noneco- nomic offers . Thus, I find that the credible evidence shows that at some point between the Union's May 1 re- jection and the May 5 resumption of bargaining, Re- spondent decided that if no bargain was reached on May 5, it would implement immediately thereafter . Although this agenda is certainly susceptible to an inference that, on May 5, Marcus was regressing to "square one" in order to come to a predictable impasse and thence to de- sired unilateral action , that is not what happened regard- less of Marcus' intent. In addition, it is also susceptible to Respondent bullying the Union into "seeing the light" after a lost opportunity. For, in any event, as I have found, apparently between the Union's May 1 rejection of the April 30 final offer and May 5 , Respondent had printed letters for distribution to its employees, all dated May 5, for distribution on May 5, which advised them of the implementation, as of May 6, of new terms of em- ployment and working conditions because of the failure of the parties to reach an agreement . In view of this evi- dence, and notwithstanding that I do not wholly accept the General Counsel's position that Respondent's return to "square one" in May 5 bargaining was only an auto- matic prelude to set the stage for unilateral implementa- tion, R. A. Hatch Co., 263 NLRB 1221 (1982), I never- theless conclude that immediately upon Marcus' rendi- tion of the "square one" terms , by no later than 11 a.m. on May 5, Respondent, decided that, regardless of the success or outcome of the May 5 bargaining, there would be, at least, new job combinations implemented on May 6 consistent with Respondent's basic desires as manifested in the March 12-April 2 noneconomic job combination offer. Again, while the matter is not free from doubt, and while it is true that Marcus decided by May 5 that Respondent would implement the new job combinations on May 6, in the absence of an agreement, the evidence, viewed most favorably to Respondent, 637 shows that he was willing to give the Union one more time-limited opportunity to come to agreement , albeit starting from "square one." This is insufficient proof of pure "stage craft" in order to act unilaterally, albeit in the face of the May 6 time limit . As will be noted, below, the above matter of Marcus' state of mind before or at 9 :30 a.m. on May 5 is actually of no dispositive consequence, for by i i a.m. on May 5, in the midst of negotiations, he had changed his mind so that he was no longer content to engage in bargaining to achieve job combinations. At the outset of the May 5 bargaining which took place at a motel at some distance from Respondent's plant, Respondent, as it had previously warned , advised the Union that only the March 12-April 2 noneconomic and the April 27, 1982 economic offers were back on the table. Marcus then analyzed, again, what each of the economic and noneconomic proposals signified. He re- jected Bucella's request for an extension of the expired contracts both during bargaining and for a 1 -year period. On Bucella's inquiry regarding a 2-year agreement, he told Bucella that he would only consider a formal union proposal and would listen to a 2-year proposal provided that it was consistent with the terms offered by Respond- ent in its 3-year agreement offers. The meeting started about 9 :30 a.m., but this Marcus agreement to listen to a union proposal of a 2-year agreement did not occur until at or immediately after 11 a.m. The Union and Respond- ent agreed, at that time, that the Union's 2-year proposal be defined and formalized during a union caucus which would include the lunch hour. Around the time that the Union was about to caucus and arrive at a 2-year con- tract counteroffer, Respondent secretly sent Robert Jewell, its director of industrial relations, away from the bargaining table and had him return to Respondent's plant.18 There, he physically destroyed, over a 6-hour period, the existing seniority and job call -in system based on the expired contract's rigid job categorizations and commenced the creation of a call-in system based on se- niority under the new job combinations which Respond- ent offered on March 12 and April 2, 1982. By 2 p.m. he had "crossed the Rubicon" and fully destroyed the old system . At 3 p.m. Douglas checked on his progress. By sometime about 5 to 6 p.m., he had created the new system of job combinations which changed both seniori- ty and job composition of the employees . Respondent was ready for actual operation of the new system some- time before 8 p.m. of that evening, May 5 No notice of Jewell 's departure was ever given to the Union nor is there any evidence that the Union knew of the reason for Jewell's absence. Nor did Respondent, at any time during May 5 , seek to recall Jewell or stop his actions. Thus, while Respondent was ostensibly bargain- ing with the Union and awaiting the Union 's counter- offer on a 2-year agreement, Respondent silently was de- stroying the terms and conditions of one of the most sig- nificant, if not the most significant, subject of collective bargaining, which subject separated the parties as much as, or more than, the proposed decrease in wages and 18 Jewell places his departure even earlier 10 15 to 10 30 a.m 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits for unit employees. Such an act, if unchecked, would have no result, even if an agreement were reached, other than to substantially alter the status quo ante which Respondent was obliged to observe in the continuation of the terms and conditions of the expired contract and would present the Union, at best, with a fait accompli in changed terms and conditions of employ- ment. It would necessarily present the Union, when it discussed the Respondent's action, with a dilemma of ca- pitulating, rejecting further bargaining, or any contract with Respondent, continuing to bargain with this disad- vantage, or of temporarily going along with the unilater- ally imposed change, especially if it believed that actual implementation would be made to await future ratifica- tion. The Union chose this latter course. Whether this unlawful fait accompli is presented to the Union at the outset of negotiations, Allied Procucts Corp., 218 NLRB 1246 (1975), or in the middle, or at the end of negotiations is immaterial . It is unlawful. Caravelle Boat Co., 227 NLRB 1355, 1358 (1977); Soule Glass v. NLRB, 652 F.2d 1055, 1084 (1st Cir. 1981). Ladies Garment Workers v. NLRB, 463 F.2d 907, 919 (D.C. Cir. 1972). Respondent's first manifested implementation of a secret change in this basic condition of employment was, in the language of Katz, supra, 369 U.S. 736, 743, a "unilateral change in conditions of employment under negotiations ... and is a '. . . circumvention of the duty to negotiate which frustrates the objectives of Section 8(a)(5) much as does a flat refusal."' This first manifestation of materi- al change, the fait accompli, occurred when Respondent after 6 p.m. on May 5, during bargaining, commenced telephoning unit employees, directing them to report for work at 6 a.m. on May 6 in new labor grades and in newly combined job classifications. I so find. This was unlawful unilateral action, violating Section 8(a)(5) of the Act. The Union's continued bargaining in face of knowl- edge of these phone calls, as the above cases demon- strate, constitutes no waiver. It is Respondent's fait ac- compli unilateral change which is significant, not the Union's silence and continued bargaining. Marcus sent Jewell to the plant to unilaterally change the status quo prior to or after Marcus agreed with Bu- cella to have the Union make a formal counteroffer based on a 2-year contract. It occurred during active col- lective bargaining. Neither Marcus nor any other Re- spondent agent ever sought to recall Jewell or to have him stop his actions . Indeed, Marcus, about 3 p.m., after Jewell had "crossed the Rubicon" at 2 p.m., sent Plant Manager Douglas to the plant to check on Jewell's progress. Thus, Marcus failed to seek Jewell's recall or the cessation of the changes after Marcus and Bucella agreed to the Union making a 2-year counteroffer fol- lowing the lunch break . Marcus' conduct, at his 11 a.m. dispatch of Jewell, shows a complete indifference to the subject matter of the Union 's counteroffer. Respondent, sending Jewell to physically destroy the existing job clas- sifications, had closed its mind to bargaining with respect to the implementation of job combinations. It was now acting pursuant to its unilateral desires . Whatever the Union might return with, the old job system was no longer bargainable. Whether this indifference flowed from an absolute determination to set in motion the new job combinations or whether it flowed from a fear that little progress was being made and that the anticipated 2- year counteroffer would not be to Respondent 's advan- tage or liking, or both, or, as the General Counsel argued, the entire May 5 bargaining was a mere stage prop for unilateral action, is immaterial. What is signifi- cant is that during bargaining on a 2-year union counter- offer, a counteroffer which Respondent invited, Re- spondent was setting in motion the machinery to unilat- erally and irrevocably change the existing terms and con- ditions of employment on a most substantial element sep- arating the parties. The Union returned about 2:30 p.m. with its 2-year counteroffer which met with Marcus' immediate rejec- tion. At this point, Marcus, for the first time , stated that the parties were at impasse, on job combinations, COLA, pensions, and other terms and conditions of employment and that Respondent intended to implement Respond- ent's outstanding offers on the next day's morning shift. Such a declaration evidently finally caught Bucella's at- tention, concentrated his mind on the fact that Respond- ent was no longer going to accept Bucella's unsatisfac- tory, "stubborn" bargaining and the Union's failure to come to grips with Respondent's serious productivity problems. For Respondent was met by Bucella's state- ment that there was no impasse because the Union was there to negotiate; by Bucella's mentioning to the Feder- al mediator that there was no impasse and Bucella stating that the Union was flexible as to each of the items that Marcus had mentioned relating to impasse, including COLA, insurance, wages, etc. Marcus apparently further concentrated Bucella's attention on the problems at hand when, after Bucella asked Marcus "are you flexible" and Marcus told him "no" and swept up his papers and left the room in the company of Respondent's negotiators, Bucella followed. As previously noted , this exchange oc- curred during a shouting match between Marcus and Bu- cella involving, inter alia, Bucella's displeasure with Marcus' early declaration of impasse after Bucella had arranged the May 5 bargaining meeting at his inconven- ience. The evidence is uncontradicted, and I find, that Bucella then immediately told the mediator to wait, and pursued the departing Marcus entourage out of the room. Marcus did not leave the area . Marcus, through the mediator, agreed to remain at the bargaining site to enable the Union to further caucus and come up with a new proposal . New union proposals and Respondent's further rejections occurred about 5 :30 p.m. and again about 7: 15 p.m. At the 5:30 p.m . session, the Union modified its pro- posal concerning the insurance program so that employ- ees would pay for any increases of premiums, adopted the Respondent's holiday proposal, froze wages and COLA, adopted Respondent's "production interference proposal," and agreed to some job combinations and changes in classifications . Such activity can only be char- acterized as real bargaining. At 6:35 p.m. Respondent re- jected the Union's further counterproposal declaring that the freeze on wages and job combinations did not go far enough. Bucella then told Marcus that he would not permit the prior union wage rate counteroffer and its re- PRC RECORDING CO. jection by Respondent to stand in the way of a contract. This, too, is real bargainng. I conclude on these facts, in sum, that notwithstanding Marcus' 2:30 p.m. declaration of "impasse," there was no impasse and that what oc- curred at 2:30 p .m., in fact, was that Marcus' use of the word "impasse," and his declaration of an intent to im- plement, propelled Bucella into taking real action: the Union, Bucella in physical pursuit of Marcus , begging to negotiate, urging his own flexibility , started to cave in with explicit willingness to make concessions . In essence, the parties were engaged, through the period from 9:30 a.m. through the 6 :35 p.m. Respondent rejection of the union counteroffer, in true, on-going collective bargain- ing. Respondent's use of the scare word "impasse" and of an intent to implement on the following morning had the desired effect . It galvanized the Union into making concessions which it made. Again, this is not evidence of impasse; it is evidence of the grinding tactical path of collective bargaining. Builders Institute of Westchester County, 142 NLRB 126, 127 NLRB v. Gulf States Mfg., 704 F.2d 1390 (5th Cir. 1983). Following a further union caucus, Bucella returned about 7 : 16 p.m. with a request for information regarding job combinations and the training of employees unfamil- iar with the combined jobs . Vice President Spear said that Respondent would train such employees. In this period Respondent commenced telephoning unit employees to report the next morning into the uni- laterally changed-combined jobs, the first implementation of the new combined jobs . Thereafter, Bucella and Marcus, through the mediator and otherwise, at this time began meeting privately in the motel halls , and sometime immediately after 1 a.m., on May 6, reached a tentative agreement. The negotiating committees were convened about 2:30 a.m. and notified of the tentative agreement. N. No Impasse Occurred at any Time on May 5-6, 1982; Bad-Faith Bargaining Respondent urges (Br. 47-58) as a defense to its unilat- eral change that the parties were at impasse on job classi- fications on the morning of May 5. In support thereof, Respondent correctly asserts that in determining impasse, at least four factors should be taken into account: (1) the bargaining history of the parties including the length of negotiations; (2) the good faith of the parties in negotia- tions; (3) the importance of the issue on which there was disagreement ; and (4) the contemporaneous understand- ing of the parties as to the state of negotiations. These are the Taft Broadcasting Co. elements (163 NLRB at 478 (1967)). While it may be true, in agreement with Re- spondent, that the parties had exhaustively examined the issue of and Respondent 's insistence on job combinations; that Respondent pressed the issue of job combinations in good faith because of compelling economic reasons, and that it was a matter of crucial importance to Respondent, there is nevertheless lacking in the facts, contrary to Re- spondent's statements (Br. 51) (a) proof that Respondent considered itself at impasse on the morning of May 5. It had invited a union counteroffer at 11:05 a .m. and was thus in the midst of bargaining . In addition, as I have found, above, (b) Respondent was seriously wanting in good faith by, at that very moment, secretly delegating 639 Robert Jewell to leave the site of negotiations in the midst thereof, awaiting a union counteroffer induced by Respondent, in order to unilaterally and permanently change an important term and condition of employment then being actively bargained on, and to initiate the new job combinations plan. Whether Marcus was frustrated by the tempo of negotiations is immaterial . He could not at the same time bargain in good faith and also initiate, without recall, unlawful changes. Certainly whatever the understanding of Marcus on the existence of impasse, there can be no question that (c) Bucella, at no time, considered himself at a state of impasse in the bargaining, and that he was bargaining in good faith-if slowly. Thus, I would ordinarily conclude that these three ele- ments (Respondent's lack of good faith, Respondent's actual bargaining, and Bucella's belief that he was not at impasse), under the Taft Broadcasting standards, demon- strate without further inquiry the absence of impasse here. I believe, however, that the record shows other and more basic evidence demonstrating the nonexistence of impasse. Marcus did not declare impasse on the morning of May 5: (a) I have previously found, contrary to Marcus' testi- mony, even as arguably corroborated by Bucella, that Marcus, on the morning of May 5, did not tell the assem- bled bargainers that the parties were at impasse and that Respondent intended to implement its prior proposals at the end of the second shift. 19 While it is unnecessary to reargue the reasons which I have specified in the above findings, leading to the conclusion that Marcus did not utter the word "impasse" to the union bargainers on the morning of May 5, it is significant and noteworthy that he would testify that he had done so. I believe that the circumstances require the conclusion that Marcus testi- fied at the hearing that he used the word "impasse" on the morning of May 5 in order to justify his initiation of otherwise unlawful unilateral action: secretly sending Robert Jewell to Respondent's plant to engage the ma- chinery for the destruction of the old job classification system and the creation of the new job combinations while in the midst of further bargaining with the Union and awaiting its 2-year contract counteroffer. I have found, to the contrary, that Marcus did not use the word "impasse" in the morning of May 5 and also did not then say that Respondent would implement the prior offers on the next morning. Rather, he first uttered these words about 2:30 p.m. on rejecting the Union's counteroffer. (b) On the above state of facts, I would conclude, moreover, that, even if Marcus around 11 a.m. used the word "impasse and told the assembled bargainers that he intended to implement Respondent's first May 5 offers on the next morning's shift, there would still have been no impasse on the morning of May 5. As the above cases demonstrate, Builders Institute of Westchester County, supra; Huck Mfg. Co., 254 NLRB 739, 754 (1981), the 19 Respondent apparently madvertantly states (Br 51) that impasse re- sulted because Marcus "replied that the Company was at impasse " Coun- sel for Respondent apparently meant that Marcus replied that the parties were at impasse It takes two to be at impasse Huck Mfg Co v NLRB, 693 F 2d 1176 (5th Cir 1982) 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mere recitation by a party that it is at impasse does not establish the existence of a legal impasse, which is a con- clusion for the Board and courts. Here, the record shows that even if Marcus had used the word "impasse" on the morning of May 5, he did so in the midst of, and as a device to induce, further bargaining with the Union by his explicit agreement to entertain a later union counter- offer of a 2-year agreement. 0. Any Impasse at 11 am. on May 5 Was Waived Assuming, arguendo, that, contrary to my conclusions impasse on the morning of May 5 resulted from Marcus' incantation of that word and from surrounding circum- stances, such impasse would have been immediately broken by Marcus' request that the Union return after the luncheon caucus with a formal counteroffer on a 2- year contract. Such an "impasse" would not permit the dispatch of Jewell to destroy the existing job composi- tion system. The reinstatement of bargaining, a moment later, would, in any event, demand his recall. The Board has admonished that impasse is not to be lightly or me- chanically inferred. The Board and courts have made clear that anything that creates a new possibility of fruit- ful discussion (even if it does not create a likelihood of agreement) breaks an impasse as do further negotiations and bargaining concessions, implied or explicit. NLRB v. Gulf States Mfg., 704 F.2d 1390 (5th Cir. 1983), citing, inter alia, Pillowtex Corp., 241 NLRB 40 (1979), enfd. 615 F.2d 917 (5th Cir. 1980). See also Builders Institute of Westchester County, supra at 131 fn. 8; Langlade Veneer Products Corp., 118 NLRB 985, 988 (1957). The Board will not accept as a viable legal argument that, in the ju- dicial instant of an "impasse," Jewell could unilaterally change the system in the face of the breaking of the im- passe an instant thereafter. But even if the initiation of unilateral action would be protected, it must cease when, as here, the impasse is immediately broken. In sum, I conclude, therefore, that (1) whether or not Marcus used the word "impasse," no impasse resulted on the morning of May 5, and (2) in addition had there been any impasse it would have been instantaneously broken by the continuation of further bargaining at Marcus' in- sistence, request, and direction. In neither case was the initiation or continuance of Jewell's activity legally justi- fied. I expressly conclude, however, that Respondent's violation of Section 8(a)(5) occurred when these hidden changes became operative, i.e., when Respondent tele- phoned its employees at 8 p.m. on May 5 to report to work in the new, combined jobs on May 6. P. There Was no Impasse in the Afternoon of May 5 Nor was there impasse at 2:30 p.m., on May 5, 1982, when Marcus, having rejected the Union's 2-year con- tract counteroffer, for the first time declared the exist- ence of an impasse, an intention to implement Respond- ent's contract offers on the next morning's shift, and sweeping up his papers left the room with his bargaining team. While it is arguable that Marcus may have be- lieved that the end of the rope had been reached and that further bargaining would have been futile (Jewell was out at the plant, at this very time, delivering the coup de grace to the expired contract's existing job clas- sification system), Bucella was literally running after Marcus and his entourage telling them that there was no impasse, that the Union was still flexible, and that the Union would bargain around the COLA, pensions, wages, and holiday problems. There was no evidence that this was a union subterfuge by which Bucella was trying to stall Respondent and forestall unilateral action, AAA Motor Lines, 215 NLRB 793 (1974); A-V Corp., 209 NLRB 451 (1974). Bucella saw the handwriting on the wall, was prepared to make concessions, and was literal- ly running after Marcus in order to continue negotiations and obtain a contract. Bucella insisted that the Federal mediator remain. On these facts, I find that Bucella, in good faith, never believed that an impasse existed to have reached the end of his bargaining rope. Cal-Pacific Furniture, 228 NLRB 1337 (1977); NLRB v. Huck Mfg., supra. Nowhere does Respondent suggest that Bucella did not believe this, in fact. I find that Marcus' declara- tion of impasse about 2:30 p.m. made Bucella aware that his position was entirely unsatisfactory to Respondent and that changes on the Union's side would be required. I further find that Bucella's ensuing outburst to and physical pursuit of Marcus not merely that he was will- ing to bargain on all the outstanding issues (COLA, wages, holidays, pensions, etc.), which Marcus listed as the cause of "impasse," but was clearly indicating to Re- spondent that the Union was willing to make concessions on these points separating the parties. The vitality of NLRB v. Huck Mfg. Co., supra at 1376-1377, is that, in order for impasse to occur, "neither party must be will- ing to compromise." Here, Bucella was telling Marcus that the Union was willing to change position; that it was "flexible," i.e., willing to make concessions. NLRB v. Gulf States Mfg., supra. In Huck, the court also stressed that the presence of the Federal mediator reen- forced the inference that the negotiations were continu- ing at that time. Indeed, that was the express instruction from Bucella to the Federal mediator. The course of ne- gotiations had not yet reached deadend. Builders Institute of Westchester County, supra, 142 NLRB at 128; Cal-Pa- cific Furniture, supra, 228 NLRB 1337. Marcus, the medi- ator, and Bucella then remained at the bargaining situs and the Union further caucused to come up with a new proposal which proposal was presented about 5:20 p.m. Thus, I conclude that in the afternoon of May 5, 1982, there was no impasse. There was instead only continuing bargaining. Assuming, argendo, that there was an instant of impasse at 2:30 p.m., it constituted nothing more than a judicial instant and it was broken by immediate subse- quent bargaining. Such a situation is more metaphysical than legal. By this time, however, unknown to the Union, Jewell had already irrevocably changed the exist- ing system. Therefore, notwithstanding that initiation of job com- binations was of apparent crucial economic importance to Respondent, NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338 (5th Cir. 1980), that Respondent pressed the necessity for job combinations at all material prior times in good-faith bargaining with the Union, and not- withstanding that there had been a long history of al- PRC RECORDING CO. leged economic necessity for a change in productivity levels predicated on combining jobs, there was never an impasse on May 5, 1982. Rather, as above noted, Re- spondent, through Marcus, secretly dispatched Jewel120 to initiate an irrevocable change in this most significant term and condition of employment, Caravelle Boat Co., 227 NLRB 1355 (1977), and at no time, while Respond- ent was ostensibly bargaining in good faith with the Union, did it advise the Union of Jewell's mission prior to implementing the new system at 8 p.m. on May 5. On rejecting the Union's counteroffer at 2:30 p.m. on May 5, Marcus, apparently burdened with the desire to implement the new job combination system, awaited a convenient opportunity to announce the existence of an "impasse," to leave the premises and to seek to avoid further bargaining. This is what Marcus may have at- tempted to do. In any event, Bucella did not cooperate. He did not permit Respondent to leave. He literally told Marcus that the Union would make concessions. The parties clearly continued to bargain. On this state of facts, the Board has found that the willingness of the party (Bucella) to make concessions in some areas sug- gests a willingness to make further concessions in order to reach agreement. The other party is not justified in concluding at that time that negotiations are at an im- passe simply because concessions have not been made in the area it finds most crucial or the concessions them- selves have not been sufficiently generous. That is what happened commencing with the Union's counteroffer of the 2-year contract which Respondent rejected at 2:30 p.m., and continuing with Respondent's subsequent rejec- tions of union counteroffers at 5:30 and at 7:16 p.m. If the Union was clearly making concessions at these points, which it was (froze wages and COLA; employ- ees' pay increased insurance premiums) Respondent could not assume that it was at the point of impasse either at 2:30 p.m. or thereafter. Old Man's Home, 265 NLRB 1632 (1982); Cal-Pacific Furniture, 228 NLRB 1337 (1977). Further, as noted above, any impasse at 2:30 p.m. would have been instantaneously waived by contin- ued bargaining and by Bucella's explicit willingness to make concessions. NLRB v. Gulf States Mfg., 704 F.2d 1390 (5th Cir. 1983). 1. The May 6 tentative agreement and implementation on the morning of May 6 Sometime on and after 8 p.m., on May 5, the Union's bargaining committee members and, in at least one in- stance, Plant Manager Douglas received phone calls from employees whom Respondent telephoned, directing them to report into combined jobs, inquiring about the 20 Although I have repeatedly alluded to Marcus' secret dispatch of Jewell to set in motion an irrevocable unilateral act prior to impasse and, indeed, during active bargaining with the Union, I have nevetherless found that no impasse ever existed Although Huck Mfg. Co v NLRB, supra at 1377 fn 16, declares that it is technically unnecessary to reach or decide the further question of whether any impasse was caused by Re- spondent 's bad-faith bargaining, there can be no question that Marcus' secret dispatch of and failure to recall Jewell in the morning of May 5 were acts wholly inconsistent with good-faith bargaining in reaching im- passe The Board, in such a case, sometimes refuses to pass on the exist- ence of impasse P:llowtex Corp, supra, 241 NLRB 40 fn I I nevertheless make both findings 641 new labor grades, new positions, and new locations into which they were supposed to report for work on the morning of May 6, the 6:30 a.m. shift. The record is un- clear concerning the disposition by Respondent or, indeed, by the Union, regarding these employee tele- phone questions. What is clear is that the unilaterally changed machinery became operative. It was no longer an internal matter. These telephone calls, in fact, changed the status quo of job classifications without im- passe or the Union's consent. As above noted, such action now openly affected the employees and violated Section 8(a)(5) and (1) of the Act. Bay Area Sealers, 251 NLRB 89 (1980); NLRB v. Haberman Construction Co., 618 F.2d 288 (5th Cir. 1980); Caravelle Boat Co., supra, 237 NLRB 1355. By 2:30 a.m., on May 6, when the parties convened to announce their tentative agreement, Bucella asked Marcus whether, in light of their tentative agreement, Respondent was going to implement the agreement. Marcus told Bucella that he would not implement the agreement pending the May 8 ratification meeting except that the new job combinations were already in the com- puter, that the employees had already been recalled pur- suant to the new job combinations for the next morning's work; and that it was too late to "unscramble the egg" of the recall of employees pursuant to the new combined jobs.21 Marcus further told Bucella and the union bar- gaining committee that, in light of the confusion result- ing from this implementation, it would be wise if the members of the union committee went to the plant to tell the incoming employees of the tentative agreement. When the union committeemen went to the plant, they told the arriving employees to disregard the new job combinations and do only their old jobs. Respondent argues that no "implementation" took place on May 6 because the employees, in fact, were given only their old jobs. Contrary to the Respondent's assertion (Br. 44), Respondent did implement the new job combinations on the morning of May 6 and employ- ees were given foreign jobs. Whether Respondent also instructed its foremen to try to have the employees per- form their old jobs is another matter; but recall of em- ployees to the new combined jobs in new labor grades is clear. Although Respondent concedes that Corena Gomez was given a new (and I find potentially danger- ous) job which she had never performed before, the record also shows that Julia McFarland, Lathrop, Inda Wilson, and Alice Ladd all were given jobs different from their regular jobs, the jobs they had performed on May 5, 1982.22 Respondent makes much of the fact that 21 There is no dispute that the new job combinations also altered em- ployee seniority to affect who was going to be recalled Marcus repeated- ly testified that the only implementation was "the recall pursuant to the revised job classifications" (Tr 1857) or the "job combination recall" (Tr 1853) 22 I agree, therefore, with the General Counsel (Br 19) that because the employees were recalled into new labor grades and new combined jobs, this, itself, was a substantial change in a term and condition of em- ployment, whatever job the employee actually performed , since the em- ployees could expect to be assigned performance of several jobs That, as Respondent argues (Br 45-46), Respondent said that it would notify its foremen that employees should be assigned to their old jobs may well be Continued 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where employees were not assigned, on May 6-7, to their May 5 jobs, they (except Corena Gomez) were at least assigned to jobs which appeared on their own job selection forms. Assignment to jobs on the job selection forms, by the terms of the forms themselves, were only to be made in the face of emergencies or reductions in force. In any event, assignment to familiar jobs is irrele- vant to what Respondent unilaterally did: creating the new, combined jobs; destruction of the old contract- based job categories, both without impasse. Both violat- ed Section 8(a)(5) of the Act. Respondent, on May 6, by presenting to the union bar- gainers, the already unlawfully unilaterally implemented (its May 5 phone calls to recalled employees) job combi- nations as an unalterable fait accompli ("too late to un- scramble the egg"), to be further implemented as a matter of inexorable fact before the May 8 contract rati- fication, demonstrated the futility of any union protest, Caravelle Boat Co., supra, 227 NLRB 1355, 1358, and, in violation of Section 8(a)(5), necessarily obstructed mean- ingful bargaining, Allied Products Co., 218 NLRB 1246 (1975); Soule Glass Co. v. NLRB, 652 F.2d 1055, 1084 (1st Cir. 1981).23 2. The Union, by its conduct, did not waive or acquiesce in the otherwise unlawful implementation of the new job combination system Respondent argues that whatever the unlawfulness of its implementations on May 5 and 6, the Union either ex- plicitly agreed to it, or by the Union's participation in telling the incoming employees to go to work and that the entire matter would be explained to them at the May 8 ratification meeting, the Union acquiesced and waived any unlawfulness of the unilateral implementation. Quite apart from any factual argument, the courts have held that "no genuine bargaining can be conducted where the decision has been made and implemented .... Notice of fait accompli is simply not the sort of timely notice upon which the waiver defense is predicat- ed." Ladies Garment Workers v. NLRB, 463 F.2d 907, 919 (D.C. Cir. 1972), and cases cited therein. Moreover, there is no evidence, as a factual matter, to support a fording that the Union explicitly agreed to Re- spondent's implementation of the new job classification combination system. The General Counsel's witnesses consistently testified that Jewell and Marcus, in particu- But not only were there the above instances where employees were not assigned to their old jobs, but I could find no evidence that the foremen, or any other supervisors , actually told the arriving employees that they would be assigned only to their old jobs-whether pending May 8 ratifi- cation or otherwise In any event, Marcus, contrary to Respondent's as- sertion (Br 44) that there was no May 6 implementation , testified (Tr 201) that "there had been changes implemented " Additionally, I have previously found that unlawful implementation first occurred even before any tentative agreement was reached with the May 5 telephone calls re- calling employees into unilaterally changed-combined jobs zs The court, in Soule Glass Co v NLRB, supra, citing Ladies Garment Workers v NLRB, 463 F 2d 907, 919 (D C Cir 1972), notes that "[N]o genuine bargaining can be conducted where [the] decision has al- ready been made and implemented thus notice of a fait accompli, re- garding a matter as to which the employer is obligated to bargain to im- passe, violates Section 8(a)(5) " Surely , in the instant case, Respondent may not escape the consequences of its bad -faith bargaining by blaming the immutable workings of its own computer lar, agreed, even by responsive nods of their heads at 2:30 a.m. on May 6, that the recalled employees should do only their old jobs and that the new job combinations could be ignored until the ratification meeting of May 8. I need not, however, resolve the issue whether, as Re- spondent urges, there was union agreement to implemen- tation of the job combinations or, as the General Coun- sel's witnesses would have it, express agreement that em- ployees would do only their old jobs until ratification. Rather, I conclude that, at 2:30 a.m., when the parties were too tired to reduce the terms of the tentative agree- ment to writing and, as the General Counsel's witness Smitson asserted, were half asleep, the matter was left so ambiguously as to permit each party to leave the bar- gaining table with the conclusion which it sought. In this situation, there was no meeting of the minds, no agree- ment between the parties as to the unilateral implementa- tion of the new job combinations system prior to ratifica- tion. Surely, Douglas' sometimes evasive testimony as to whether the particular issue was mentioned at 2:30 a.m. does not demonstrate that Respondent told the Union's bargaining members that the newly arriving employees would have to perform the combined jobs. Similarly, if resolution were necessary, I would ordi- narily disregard as incredible, Bucella's testimony and the testimony of all the General Counsel's witnesses that Marcus, or Douglas specifically, or by nods of their heads, told the Union at 2:30 a.m. that the employees would do only their old jobs. Yet, as above noted, Marcus' testimony repeatedly stressed that the only im- plementation concerned the new seniority implicit in the combined jobs and thus only the questions of who would be recalled, inferentially supporting the General Coun- sel's witnesses: that the computer could be ignored con- cerning what jobs the recalled employees would perform. While Jewell, a participant at the 2:30 a.m. bargaining session, when the tentative agreement was announced, was not questioned on this issue, Marcus, for instance, further testified, inter alia (Tr. 201): I thought it would be helpful if the committee would come in to calm down the employees to assure that while there had between changes imple- mented, they should not be concerned about those changes, that they should work, and then on Saturday every thing would be explained to them in the con- text of the tentative agreement that had been reached by the parties. If Marcus told the committee, at 2:30 a.m., inter alia, that the employees "should not be concerned about these changes," then I find that the union committeemen could reasonably believe that the employees should "not be concerned about those changes" until ratification. Fur- thermore, consistent with what Marcus said, I have cred- ited Union Vice President Whitehead's testimony that, notwithstanding the private instructions Douglas admit- tedly gave to Jewell, directing Jewell to instruct Re- spondent's foremen to have the arriving, recalled em- ployees perform only their old jobs and not create a "work refusal" situation, Jewell, at this 2:30 a.m. session, told the union bargaining committee, including White- PRC RECORDING CO. head, that the union bargaining committee should go to the shop and tell the arriving employees (and Jewell would tell his foreman) that they should disregard what had been fed into the computer or what they had been told in the telephone calls (Tr. 733). While it is true that such a statement approaches Jewell overtly telling the union committee that the employees would perform only their old jobs, it is clearly consistent with (a) Marcus ad- mittedly telling the union committee that the newly ar- riving employees "should not be concerned about those changes" until the May 8 ratification; (b) the union com- mittee telling the arriving employees to perform only their old jobs; and (c) Marcus' testimony stressing the fact that implementation concerned who would be re- called and, inferentially, not what job the employee would perform. The record, therefore, supports the "futility" theory ("too late to unscramble the egg") when the Union was presented with a fait accompli, Caravelle Boat Co., supra, and the conclusions, which I draw, that if waivable, the union committee did not "clearly and unmistakably," ex- plicitly, or, more appropriately, by its conduct, agree to, waive, or acquisce in, Respondent's implementation of the new job combination system on May 6, General Elec- tric Co. v. NLRB, 414 F.2d 918, 923 (4th Cir. 1969); American Oil Co. v. NLRB, 602 F.2d 184, 189 (8th Cir. 1979); that the union committee could reasonably be- lieve, from the bargaining table statements of Respond- ent's agents at 2:30 a.m. on May 6, that returning em- ployees "should not be concerned about" the new job combinations system, and would do only their old jobs; and that regardless of Douglas' private instructions to Jewell, no Respondent foreman or supervisor ever told returning employees that they would be assigned only to their old jobs, regardless of the new combined jobs and labor grades, until the May 8 ratification. I also find that the union committee's direction to the newly arriving employees to perform only their old jobs is some evi- dence in support of the conclusion that the union com- mittee reasonably believed that that was the substance of Respondent's statements at the bargaining table 3 hours earlier and that the Union did not waive Respondent's unilateral act. As above noted, when the union committeemen went to the plant, at 6 a.m., they instructed the arriving em- ployees to perform only their old jobs. The union com- mitteemen had already heard of the recall to strange jobs in new labor grades when they received telephone calls at the motel from employees 5 hours before the tentative agreement was reached. The court noted in Soule Glass v. NLRB, supra, and the Board in Caravelle Boat Co., 227 NLRB 1355 (1977), the union' s silence at that time and the union's failure to explicitly object to this unilateral act does not constitute waiver or acquiescence. Here, as in Caravelle at 1358: [W]hen the Union became aware of the contemplat- ed changes, the decision to make them had already been reached, and in some cases, the changes had al- ready been implemented. Any protest by the Union would therefore have been futile. [Emphasis added.] 643 See also Kay Fries, Inc., 265 NLRB 1077 (1982); Allied Products Corp., 218 NLRB 1246 (1975). The Union did not later protest the implementation on May 6 because, having instructed its members to perform only their old jobs, it did not know that employees, or at least some of them, were being directed to perform the jobs pursuant to the new job combinations. Thus, on May 6, there was no necessity or even basis on which to protest the imple- mentation of working under the new job combinations. By May 7 the Union knew that its assumption was erro- neous; on May 8 the tentative agreement was rejected; and on May 11 the Union filed the charge alleging the 8(a)(5) violation. Under these conditions, there is no un- derlying predicate for a "clear and unmistakeable waiver" of an otherwise unlawful unilateral change in conditions of employment. Soule Glass Co. v. NLRB, 652 F.2d 1055, 1084 (1st Cir. 1981); NLRB v. Island Typogra- phers, 705 F.2d 44 (2d Cir. 1983). 3. The impact of the May 6 job combination changes Respondent concedes only that Corena Gomez had her job significantly changed. Corena Gomez never op- erated the cryovac machine prior to this time and had never mentioned operation of the cryovac machine on the job application form. Thus, with regard to her, there was a substantial and, as her testimony shows, a poten- tially dangerous change in her job. I have, however, in addition, found that Julia McFarland, Michael Boat- man,24 Inda Wilson, Alice Ladd, and Richard Lathrop were all performing jobs pursuant to the new job combi- nation system rather than their old jobs. I have found that this occurred on May 6 and 7, 1982. Respondent's unlawful unilateral changes affected suf- ficient employees to have a significant impact on the units. I therefore conclude that Respondent without the Union's consent, by implementing, on May 5, 6, and 7, prior to the May 8 union ratification vote, the new job combination system, violated Section 8(a)(5) and (1) of the Act; and that thereafter, neither by express nor im- plied agreement, nor conduct did the Union waive or ac- quiesce in the unilateral and unlawful implementation of the job combinations. I further conclude that Respond- ent's unilateral implementation of the job combinations was a substantial change in the terms and conditions of the employment all the employees in both units. NLRB v. Katz, 369 U.S. 736 (1962), supra; Caravelle Boat Co., supra; and Soule Glass, supra. 4. The Union's May 8 contract ratification meeting The union membership, on May 8, decisively rejected the May 6 tentative agreement. The new job combina- tions were mentioned prominently in the rejection, par- ticularly the effect on older employees working machin- ery on which they were not trained. Although the matter is not dispositive, I have found that Marcus warned Bucella on May 6, as he had on 24 Boatman's testimony also includes his observation that , on May 6, he saw Johnnie Hunter performing particular work he had never before performed (Tr 887) Respondent did not contradict this testimony. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 30, that if the tentative agreement of May 6 was rejected the parties would return to "square one." Re- spondent further argues that the Union's May 8 rejection of the May 6 tentative agreement removed it from the bargaining table reinstituted the March 12 and April 2 and 27 proposals as of the morning of May 5, and resur- rected the May 5 impasse (R. Br. 61). It is unnecessary to resolve the question of whether the May 8 rejection of the tentative agreement reinstituted a May 5 impasse because I have already concluded that there was no May 5 impasse and, if there were, it resulted from Respond- ent's bad-faith bargaining. In any event, there was no impasse on May 8 regard- less of an alleged impasse on May 5 . When Bucella, in his May 10 telephone conversation with Marcus told him that Respondent had caused the rejection by its mistaken improper implementation of job combinations, Marcus told Bucella that Respondent was going to have to return to its original proposals in view of the rejection. Viewed in isolation (Respondent had already embarked on a course of unlawful conduct), this was a lawful atti- tude for the Respondent to take. This was not impasse. However, instead of taking up Bucella's request that the parties bargain immediately so that they could resolve the matter of the Union's May 8 rejection, Marcus told him that the parties were at impasse. When Bucella re- quested that Respondent not further implement the terms of the contract, Marcus told him that there was no need for a meeting and that he would implement the contract. Later on the same day, Marcus sent a confirming tele- gram to Burcella relating to impasse and implementation, notwithstanding that he added a statement concerning Respondent's willingness to bargain further if there was a change in the Union's position. Such an added statement, of course, came too late because Respondent was already in the midst of implementing the contract terms on the next day, May 11. Thus, when Bucella was seeking to avoid or mitigate unlawful implementation Respondent was insisting on impasse, implementing all remaining terms on the next day and exacerbating its unlawful con- duct. I conclude, therefore, contrary to Respondent's asser- tion (Br. 61) that no impasse existed on May 8, 1982, on the union membership's rejection of the tentative agree- ment (caused by Respondent's unlawful, premature im- plementation) and that assuming , arguendo, the existence of impasse following the May 8 rejection, Respondent was obliged, on Bucella's May 10 request, to bargain and not to further implement its March 12 and April 2 and 17 offers. Following Marcus' May 19 telegram, Industrial Rela- tions Director Jewell distributed letters (G.C. Exhs. 24, 25)25 to all employees in both divisions notifying them of the implementation of all terms of Respondent's March 12 and April 2 and 27 economic and noneconom- ic offers effective May 11. Up through May 11, employ- ees had been receiving the expired contract's wage rates, insurance, pensions, holidays, and vacations. I further find that because there was no impasse, whether May 5, 6, 8, 10, or at any other time, Respond- 2s These were the May 6 letters , now dated May 11 ent's unilateral implementation on May 11, 1972, of all the terms of its proposals, constituted further violations of Section 8(a)(5) and (1) of the Act because implementa- tion occurred without the Union's consent, was merely a continuation of unlawful conduct, and took place in the face of the Union's lawful request for further bargain- ing.26 Q. Further Alleged Violations of Section 8(a)(5) of the Act 1. Misrepresentation of financial condition and failure to surrender books and records By its second amendment of the complaint in Case 25- CA-14508, dated September 2, 1982, the General Coun- sel alleges as a violation of Section 8(a)(5) and (1) of the Act: (a) about April 27 and May 3, 1982, Respondent materially misrepresented its bargaining position by fail- ing to advise the Union that a substantial reason for cer- tain of Respondent's changes in its collective-bargaining proposals was its poor financial condition resulting from economic losses and by asserting "other reasons" for the proposals; (b) about May 3, 1982, Respondent advised the Union that its books and records reflecting its finan- cial position would not be shown to anybody except the Internal Revenue Service and its stockholders, thereby refusing to supply such information to the Union and es- tablishing the futility of requesting such books and records; (c) Respondent's books and records regarding its financial status are necessary and relevant to the Union's performance of its exclusive collective-bargain- ing representative function; and (d) because about May 3, Respondent has failed and refused to furnish the Union with the information described above. The facts are not in dispute that Respondent's April 27, 1982 financial offers in both divisions resulted from, inter alia, (1) wage surveys in (a) the recording industry, (b) the Richmond, Indiana area, (c) in the State of Indi- ana; and (2) taking into account both Respondent's poor financial showing at the Richmond, Indiana plant and the wage levels it paid to its comparable employees in Compton, California. It is also undisputed that Marcus, about May 5, 1982, on at least one occasion, answered Bucella's question, concerning whether Respondent was pleading an inability to pay, by stating that Respondent 26 Respondent's obligation, it seems to me, even after the Union's May 8 rejection of the tentative agreement was to bargain, and perhaps in some way to attempt to at least undo or mitigate Respondent's unlawful implementation of the new job combinations commencing on May 5 This obligation would exist , under general legal theory , even in the face of the Board rule that bargaining subsequent to the May 5 and 6 unlawful im- plementation of job combinations would be bargaining against a back- ground of an unremedied unfair labor practice and thus an exercise in fu- tility An employer which has instituted an unlawful unilateral change in employees' wages or working conditions may not cure his violation by subsequently bargaining to an alleged "impasse " Compare Allied Products Corp, 218 NLRB 1246 (1975), enfd in part 548 F 2d 644 (6th Cir 1977); 629 F 2d 1167 (6th Or 1980), with NLRB v. Cauthorne Trucking Co, 691 F 2d 1023 (D C Cir 1982), denying enf and remanding 256 NLRB 721 (1981) On the other hand, an employer may not suspend or avoid its ob- ligation to bargain using as a shield its own unfair labor practices which would render further bargaining a "futility " Bay Area Sealers v. NLRB, 665 F 2d 970 (9th Cir 1982), denying enf 251 NLRB 89 (1980), is not to the contrary PRC RECORDING CO. was not so pleading because to do so would open Re- spondent's books and records to the Union ; and that Re- spondent was not pleading an inability to pay but rather an unwillingness to offer higher wages. It is also undis- puted that the Union never requested to see Respond- ent's books and records. There is no proof that Respondent materially misrepre- sented anything regarding its wage offers . It told the Union that its profit situation was none of the Union's business and irrelevant to its wage offers . The fact that the 1981- 1982 operations at the Richmond plant were unprofitable is not the equivalent of a plea of poverty. Because I know of no authority for the proposition that a bargaining position in which an employer fails to advise the union of its financial position constitutes "mis- representation," I conclude that the General Counsel's allegations, insofar as they allege that Respondent mate- rially misrepresented its bargaining position by failing to advise the Union that a substantial reason for its bargain- ing offers was its poor financial condition , were unsup- ported by any authority or by proof. Consistent with Respondent's position that its financial posture and profit and loss position were none of the Union's business and in view of the fact that it was not pleading an inability to pay any wage increase, Marcus' statement that it would show its books only to the Inter- nal Revenue Service and its bankers (rather than, as al- leged by the General Counsel , its stockholders) is entire- ly consistent with the Supreme Court's holding in NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956) There, the Court held that if an employer claims a financial inability to pay economic demands it must, on the union 's request, substantiate such claim by showing the union its books and records . In the instant case, of course, the Union never demanded the books and records so that that ele- ment of Truitt is not met by the fact. To avoid that defi- ciency of fact, the General Counsel argues that Marcus' statement would make any request "futile." Yet, who knows what Marcus' response would have been in the face of a concrete union request ? The fact remains, how- ever, that Respondent did not plead an inability to pay, thereby rendering the question of whether "futility" is here a legal substitute for a demand for the books and records, irrelevant. I have reviewed the cases suggested by the General Counsel and the Charging Party concerning Board inter- pretation of when an employer's course of conduct during negotiations constitutes an implied contention that it is pleading an inability to pay wage and fringe benefit increases in the absence of an express statement thereof. These cases are factually distinguishable from the instant case when Respondent has explicitly stated that its refusal to pay anything greater was based on an unwillingness to do so rather than an inability to do so. On such a state of facts, I would agree, for instance, with the statement of the court of appeals in New York Printing Pressmen v. NLRB, 538 F.2d 496, 500 (2d Cir. 1976), that: So long as the Employer's refusal reasonably inter- preted is the result of financial inability to meet the employees' demand rather than simple unwillingness to do so, the exact formulation used by the Employ- 645 er in conveying this message is immaterial . [Empha- sis added.] Here, nothing could be clearer than that Respondent did not put at issue its ability to avoid any union wage demand and conveyed explicitly a simple unwillingness to pay wage increases . Whether Respondent was moti- vated by a desire to avoid showing its books to the Union or to put the money into advertising , corporate dividends, or other disposition is a matter not for the Board. Here, there was a simple unwillingness to pay greater wages. I therefore recommend that the allega- tions of the complaint be dismissed insofar as they allege a violation of Section 8(a)(5) based on any misrepresenta- tion of Respondent's financial position, or its pleading an inability to pay, or its failure to surrender its books and records to show its financial condition . NLRB v. Truitt Mfg. Co., supra. 2. Failure to implement final offer The General Counsel alternately alleges, as a violation of Section 8(a)(5) and (1), that assuming, arguendo, that Respondent's conduct in bargaining, commencing March 12, 1982, led to a good-faith impasse, that Respondent was nevertheless obligated , in implementing its working conditions unilaterally on May 11, to implement the terms of the May 6 tentative agreement rather than the more regressive economic and noneconomic offers of April 2 and 27 and March 12. In short, the General Counsel alternatively argues that Respondent was "frozen" into its higher or last offer which was the sub- ject of the tentative agreement of May 6 because the prior offers, particularly the offer on the table on the morning of May 5, had been "abandoned" by virtue of Respondent entering into the tentative agreement (G.C. Br. 24). Respondent argues to the contrary : that the ten- tative agreement of May 6 was rejected by the Union in the May 8 ratification vote; that, as it had admonished the Union, it was free to implement, in the face of rejec- tion, any terms and conditions of employment "reason- ably comprehended within its pre-impasse proposals," Taft Broadcasting Co., 163 NLRB 475 (1967), enfd. sub nom. Television Artists v. NLRB, 395 F.2d 622, 628-629 (D.C. Cir. 1968). The court at 629 states that the unilat- eral change must be within "the ambit of proposals al- ready made and rejected." In view of my findings above that, in fact, there was no impasse, and that Respondent engaged in bad-faith bargaining leading to the alleged impasse , I need not reach or decide the General Counsel 's alternative theory that Respondent violated Section 8(a)(5) and ( 1) of the Act by implementing its most regressive offers and, in any case, offers which it allegedly "abandoned" by en- tering into the tentative agreement of May 6 . Concerning the retraction of proposals and postimpasse implementa- tion, however, compare the Board 's position in Pitts- burgh-Des Moines Steel Co., 253 NLRB 706, 708 (1980), and the General Counsel 's advice memorandum, in re: Toledo Blade, 113 LRRM 1029 (March 15, 1983), with the court's position in Pittsburgh-Des Moines Steel Co. v. NLRB, 663 F.2d 956 (9th Cir. 1981) (denying enf. to 253 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 706 (1981)), and NLRB v. Tomco Communica- tions, 567 F.2d 871, 883 (9th Cir. 1978) ("to bargain col- lectively does not impose an inexorable ratchet, whereby a party is bound by all it has ever said "). And see also Brooks, Inc., 228 NLRB 1365, 1368 fn. 16 (1977) ("Re- spondent's recourse was . . . to bargain in good faith to impasse at which point it could lawfully institute those wage rates last offered the Union as a good-faith basis for settlement") (emphasis added). Lastly, at the hearing, I inquired whether the General Counsel was prepared to allege and prove that Respond- ent's overall bargaining was in bad faith or whether the parties were concerned only with the question of unlaw- ful implementation of unilateral changes, with bad-faith prompting such changes. The General Counsel declined to amend the complaint to allege overall bad-faith bar- gaining.27 To the extent therefore that the General Counsel, in her brief (G.C. Br. 25), now argues that Respondent vio- lated Section 8(a)(5) of the Act "by its course and con- duct during negotiations"; that Respondent's violations must be viewed "in context and not separately"; that the "overall pattern of Respondent's conduct" must be exam- ined; that "Respondent had no desire to reach agreement with the Union and set out with the intent to bargain in bad faith," this is nothing less, in sum, than an allegation of overall bad-faith, "surface" bargaining. J. D. Lunsford Plumbing, 254 NLRB 1360, 1370 (1981). In view of the General Counsel's failure and refusal to amend the com- plaint to so allege, and notwithstanding the possibility that evidence may appear in the record in support there- of, and also that it is quite arguable that some of Re- spondent's conduct demonstrated bad-faith bargaining overall, I will not rule on that issue.28 To do so, I be- lieve, would "impune the fairness of the hearing": to rule on a matter which the General Counsel specifically re- fuses to allege in the complaint. See Old Man's Home, 265 NLRB 1632 fn. 4 (1982). R. Allegation of Violations of Section 8(a)(3) and (1) of the Act The complaint further alleges that Respondent's unilat- eral implementation on May 11 of its May 5 offers con- stituted a violation of Section 8(a)(3) and (1) of the Act because, in substance, these regressive, implemented offers were in retaliation for the union membership's 27 It is true, however, that the second amendment to the complaint, dated September 2, 1982 (G C Exh 1(u)) does contain an allegation, in its new par. 6(o), that because about April 27, 1982, Respondent has "failed and refused to bargain with the Union" as the exclusive bargain- ing representative of its employees in the tape and records units. Not- withstanding that Respondent clearly "bargained" and that this allegation defectively omits an assertion of a failure of Respondent to bargain "in good faith," I nevertheless believe, in addition, that it was the General Counsel's contention, in view of this refusal to amend the complaint to allege overall bad-faith bargaining, to not stand on that ground. 29 Just how the General Counsel would square Respondent's alleged overall desire not to reach an agreement with its failure to leave the bar- gaining situs after declaration of "impasse" and with the May 6 tentative agreement actually reached are problems for the General Counsel. For remedial purposes, however, I feel free to observe that because Respond- ent's unilateral implementations of May 6 and 11 covered the entire spec- trum of wages, hours, and other mandatory terms and conditions of em- ployment, a direction to bargain, on request, is proper May 8 rejection of the May 6 tentative agreement. There is no record evidence and no reasonable inference from the facts to support this allegation. I therefore recom- mend that it be dismissed in its entirety. S. Alleged Independent Violations of Section 8(a)(1) of the Act (a) At the hearing, the General Counsel amended the consolidated complaint by adding (par. 5(c)) and alleging that, in substance, in the April 30, 1982 bargaining ses- sion, Marcus threatened the Union's bargaining commit- tee, consisting of Bucella and unit employees, that Re- spondent would withdraw its (highest) contract proposal and substitute a less desirable one ("return to square one," the March 12-April 2 noneconomic offers and the April 27 economic offer) if Respondent's proposal was rejected and the Union went on strike. The General Counsel argues that Marcus "thereby threatened to make a regressive offer if Respondent's employees engaged in protected rights under Section 7 of the Act by engaging in a strike" (G.C. Br. 14). Marcus admitted making the statement (Tr. 1791). There is no suggestion that Marcus was making an economic forecast. It was a threat. Al- though it may be argued that Marcus was in the midst of collective bargaining with a union official long experi- enced in collective bargaining with employees specifical- ly chosen to participate in the hurly-burly of the bargain- ing table, and although it could be argued that remarks made at the bargaining table are not to be given the same weight as those made to employees in general, the pres- ence at the bargaining table of employees is dispositive. For the rule is that the touchstone of finding a violation of Section 8(a)(1) is not to be determined by inquiring into the employer's motive, intent, or effect; rather the test for "restraint and coercion" under Section 8(a)(1) of the Act depends on whether the conduct "may reason- ably be said to have a tendency to interfere with the free exercise of employee rights under the Act." El-Rancho Market, 235 NLRB 468, 471 (1978). Employer threats to employees to retreat to a regressive bargaining posture violate Section 8(a)(1) if the threat is conditional on em- ployees exercising statutory rights. TRW-United Green- field Division v. NLRB, 637 F.2d 410 (5th Cir. 1981). I conclude that because the threat of retaliation by Marcus was Respondent's threat to return to its most regressive offer if the employees, inter alia, exercised their right to strike, I conclude that Marcus' statement, as alleged, vio- lated Section 8(axl) of the Act. Airport Parking Manage- ment, 264 NLRB 5 (1982). (b) Paragraph 5(b) of the complaint in Case 25-CA- 14830 alleges that on an unknown date between May and September 1982, a Respondent guard, whose name is un- known, threatened to "hang an employee on a pole" be- cause the employee engaged in union activity and other concerted activities. The guard, not a Respondent em- ployee, was apparently an employee of the armed guards service hired ("CIB") by Respondent at the outset of the strike to protect Respondent's property and to prevent unlawful ingress to Respondent's property. It is undenied that guards, on pain of discharge, were forbidden to speak to striking employees. PRC RECORDING CO Support for this allegation is derived from the testimo- ny of Silvia Parker, a striking employee, who testified that while she was picketing in June or July, a car with replacement employees crossed the picket line and a picket called the driver a scab. Immediately, a guard came up to her and said he would hang her from a tele- phone pole if she did not leave. Parker did not identify the guard by name but identified him as a tall, well-built black man. Parker did not suggest any physical activity by the guard directed toward her or any other threat of bodily harm or use of force. The General Counsel asserts that the guard's statement of a threat to hang Parker from a telephone pole constituted an independent viola- tion of Section 8(a)(1) of the Act. Assuming, arguendo, that the guard identified was a Respondent-controlled guard and, thus, an agent (Doral Building Services, 266 NLRB 1215 (1983), and assuming, further, that it was within the scope of his agency to utter such a threat, National Paper Co., 102 NLRB 1569 (1953), enf. denied 216 F.2d 859 (5th Cir. 1954)),29 I con- clude that the threat was not a violation of Section 8(a)(1) of the Act. For the threat to violate Section 8(a)(1) of the Act, it must be, as above noted in El- Rancho Market, supra, 235 NLRB 468, 471, "reasonably be said to have a tendency to interfere with the free ex- ercise of employees' rights under the Act." Although the remark was clearly discourteous and even menacing, there is no showing that the guard was remotely capable or willing to hang anybody, much less to hang anybody from a telephone pole; and there was no suggestion that Silvia Parker was aware of the presence of any tele- phone pole or the ability of the guard to engage in hang- ing her. What the guard's statement amounted to, in fact, was a forceful statement to the pickets against the pickets yelling "scab" at the replacement employees. I conclude that the conduct, while menacing, was so remote from plausible execution that it was not conduct which, within El-Rancho Market, supra, would reasonably be said to have a tendency to interfere with Parker's free exercise of the right to picket. I therefore recommend that the al- legation of Section 5(b) of the complaint be dismissed. In so doing, I have found, in fact, neither agency, nor action within the scope of any such agency. G. F. Busi- ness Equipment, 252 NLRB 866, 867 (1980). (c) The complaint, paragraph 5(a), in Case 25-CA- 14830 alleges that about July 30, 1982, Respondent, through a guard known as "Davidson," threatened em- ployees with unspecified reprisals because employees en- gaged in union activity and other conerted activities. In support of this allegation, the General Counsel notes that employees Tate, Sloan, and Dudley testified with regard to the incident. Vickie Hoover, a witness, who was also present at the incident, failed to testify on this matter at the hearing.30 It was she who was in- 29 There is no suggestion that Respondent knew of the threat, author- ized it, or condoned it See Hudson Oxygen Therapy, 264 NLRB 61 (1982), and cases cited therein 90 The General Counsel concedes that Hoover's involvement in the July 13 pistol shooting incident forfeits her reinstatement rights (G C Br. 59) 647 volved in a July 13 pistol-firing incident concerning a re- placement employee and who, with Glenita Dudley, had been already discharged on July 12 for breaking glass bottles in Respondent's driveway on July 9. Thus, the in- cident, as alleged in this paragraph, occurred more than 2 weeks after the discharge of Dudley and Hoover for breaking glass bottles in Respondent's driveways. In the afternoon of July 30, Tate, Sloan, and Dudley had a picket line conversation with a black guard whom they identified as "Davidson." There is no guard named "Davidson" but there is a guard (employed by the guards service hired by Respondent) by the name of Davis. They identified "Davidson" as a guard because of his clothing which was worn by the guards hired by Re- spondent during the strike. In any event, the guard watched the four employees (including two former em- ployees, Hoover and Dudley) picket. As Tate was throwing a glass bottle on the driveway, Dudley testified she told Tate not to throw the bottle (although the bottle was already thrown) and Dudley added: "Don't do that; you'll get me fired. 113 t At this point, the guard said, "That's right." When Dudley asked him what he had said, the guard, according to Dudley, said, "That's right" and then he added: "No matter what happens or who you're with, you'll be the one to get fired" (Tr. 991). Dudley then testified that what Davidson actually said was that Vickie Hoover and Dudley would be the ones who would be fired (Tr. 991). Patricia Sloan testified that they were all "just more or less cutting up and joking around" when the conversa- tion got around to the subject of. "No matter what any of us did, Vickie and Cookie [Dudley] was going to get the blame for it when he [Davidson] turned his report in." Sloan mentioned nothing of Davidson saying that anybody would be fired. Similarly, Christine Tate testi- fied (Tr. 1020) that it did not make any difference "what me and Pat done that the blame would be put on Cookie [Dudley] and Vickie Hoover." Thus Tate, like Sloan, did not corroborate Dudley's version that the guard said that Dudley and Hoover would be fired for what other em- ployees did. It might also be noted that Christine Tate apparently contradicted the testimony of Dudley. Whereas Dudley testified that Tate threw the bottle, Tate testified (Tr. 1021) that they had not "done any- thing that day." She testified, as others had testified, that they were all "kidding" the guard about the glass in the driveway (Tr. 1021). In short, Dudley testified, that Tate threw a bottle and Tate apparently denied that she had done so. The General Counsel argues that Dudley and Hoover were prominent members of the Union's bargaining com- mittee in negotiating of the new contract and that Re- spondent picked them out because of their union activity and decided to blame them for any picket line miscon- duct which occurred while they picketed regardless of their responsibility for such conduct (G.C. Br. 33). Respondent defends on the grounds that there was an improper identification of the guard who made the state- 31 This Dudley version of the conversation is confusing because she had already been discharged about July 12 for a July 9 incident 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment; there is no "Davidson" as alleged by the General Counsel; that the alleged threat never occurred because of the incredibility of witnesses Dudley, Tate, and Sloan and because of the credibility of its witness Davis who denied ever discussing the matter of discipline with the strikers although admitting a conversation with a white female employee who told him : "thanks for getting me fired." On the ground of credibility, I would credit Davis' testimony over the combined testimony of Sloan, Tate, and Dudley in view of the fact that ( 1) Tate and Sloan, unlike Dudley, never said the guard said that Hoover and Dudley could be fired; (2) Dudley testified that the alleged threat contained an admonition that Dudley could be fired whereas Dudley had already been fired. In comparing this with Davis' testimony, Davis more ap- propriately testified that this female employee told him "thanks for getting me fired" thus , properly relating the matter to a past event. As noted, Dudley had been fired 2 weeks previously and thus it is more plausible for Dudley to have told Davis "thanks for getting me fired" rather than Davis saying, as Dudley testified, that it could get her fired regardless of whether she committed any act. I also note (3) that Tate and Dudley contradict- ed each other with regard to whether Tate had thrown the bottle. Similarly, (4) I was dissatisfied with Dudley's testimony whether the guard said that she would be blamed or that both she and Hoover would be blamed. In any event, because I have not credited Dudley's state- ment that the guard used the word fired and because both Sloan and Tate testified that, at most, the guard said that Hoover and Dudley would be "blamed " for the acts of others, I accept the Sloan-Tate version rather than the Dudley's version. Assuming, the Sloan-Tate version of the event, regard- less of Davis' testimony, I nevertheless recommend that the allegation be dismissed . As will be noted hereafter, in the question of the lawfulness of the Dudley and Hoover discharges by Respondent, they were discharged on July 12 for throwing glass bottles and breaking them in the driveway on July 9. They had already been discharged at the time of the instant conversation . There is no ques- tion that, on this record , Sloan and Tate were also invet- erate glass bottle-throwers onto Respondent's property and driveways though they were never disciplined for it. As a matter of fact, I have found, below, that Sloan falsely testified, in defense of Dudley and Hoover, that it was she who broke the glass bottles on July 9 and not Dudley and Hoover.32 I would conclude, on the basis of all of the evidence, arguendo, crediting the Sloan-Tate version, that the guard told them that because Hoover and Dudley were known (Respondent had already dis- charged them for breaking bottles) bottle-breakers on Respondent's driveways, they would be blamed for other persons' (Sloan and Tate) acts in breaking glass bottles on the driveways. Thus, there is a fatal Tate ambiguity, as Tate reported the guard's statement, involved in the use of the word "blame": it may well be that the blame 32 Tate's testimony, that she and Sloan on July 30 had not done any thing "that day" (Tr 1021), leaves little room for speculation that, on other days, they had done "something " that could be inferred was blame induced by virtue of Hoover and Dudley being on the bargaining committee; but, the blame could clearly be blame based on Hoover's and Dudley's past bottle-breaking history and proclivity. I recommend to the Board that the allegation of para- graph 5(a) be dismissed in view of the fact that evidence of the threat was too ambiguous to constitute a violation of Section 8(a)(1) of the Act. I therefore need not reach the questions of the identification of Davis or whether Davis was "Davidson"33 or whether he was acting within the scope of his authority in making the alleged threat. Compare Hudson Oxygen Therapy, 264 NLRB 61 (1982), Coors Containers Co., 238 NLRB 1312 (1978), and Harrison Steel Casting, 262 NLRB 59 (1982), with Cabot Corp., 223 NLRB 1388 (1976), affd. sub nom. Chemical Workers Local 483 v. NLRB, 561 F.2d 253 (D.C. Cir. 1977), and G. F. Business Equipment, 252 NLRB 866 (1980), enfd. 673 F.2d 1314 (4th Cir. 1982). T. The May 13, 1982 Strike Respondent implemented the balance of its May 5 morning offers (other than job combinations, already im- plemented on May 5 and 6) on May 11 after the Union's May 8 ratification vote rejection. The strike, on uncon- tradicted and credible evidence, was voted on May 12, inter alia, because of the implementation on May 6 of the new job combinations, the May 11 implementation of the balance of the May 5 morning offer, and Respondent's unwillingness to continue the terms of the expired agree- ment. Because, as above found, Respondent violated its 8(a)(5) obligations both to continue to observe the sub- stantive and other employer-employee terms of the ex- pired contracts and to refrain from implementing, on May 5, 6, and 11, its contract proposals before bargain- ing to good-faith impasse, the strike, based at least in part on these considerations, was an unfair labor practice strike from its inception on May 13, 1982. The uncontra- dicted testimony of the General Counsel's witnesses who, as union committeemen, voted the strike demon- strates that the above factors were a major cause of the strike rather than a mere "contributing factor," the latter being the statutory minimum of causality linking the commission of unfair labor practices with the object of an ensuing strike . Soule Glass Co. v. NLRB, 652 F.2d 1055, 1084 (1st Cir. 1981), citing NLRB v. Moore Business Forms, 574 F.2d 835, 840 (5th Cir. 1978). See also NLRB v. Haber Construction Co., 618 F.2d 298, 302-303 (5th Cir. 1980); Laredo Coca Cola Bottling Co. v. NLRB, 613 F.2d 1338 (5th Cir. 1980); NLRB v. Tomco Communica- tions, 567 F.2d 871 (9th Cir. 1978); Larand Leisurelies, Inc., 213 NLRB 197 fn. 4 (1974), enfd. 523 F.2d 814 (6th Cir. 1975); and Airport Parking Management, 264 NLRB 5 (1982). s' Perhaps due to an outstanding sequestration order, Davis was not identified as the guard who actually made the statement. PRC RECORDING CO. 1. The Union's June 28 and July 13 telegram offers to return to work; Respondent's answer of June 19, 1982 The strike having started on May 13, Respondent commenced hiring replacements for the striking employ- ees about May 20, 1982. After approximately 6 weeks of striking, the Union's June 28 (and July 13) telegram (G.C. Exhs. 26 and 28) informed Respondent that "on behalf of all employees . . . you are officially notified of their unconditional application to return to work imme- diately." Though eminating from the Union, such lan- guage manifests an unconditional offer to return to work on behalf of the unfair labor practice strikers, NLRB v. W. C McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977). Re- spondent's answering telegram of the next day also char- acterize the Union's offer as "unconditional." This union action triggered a corresponding obligation on Respond- ent to offer the unfair labor practice strikers (other than those, if any, who may have already been independently lawfully terminated for misconduct or had independently quit) immediate reinstatement to their old jobs, discharg- ing, if necessary, any replacements. NLRB v. Mastro Plastics Corp., 350 U.S. 270 (1956); Airport Parking Man- agement, 264 NLRB 5 (1982), cases cited therein. This, Respondent failed to do the do. Instead, Respondent immediately (June 29) tele- graphed the Union (G.C. Exh. 27) stating that Respond- ent already had a staff of "permanent employees"34 and would return the strikers to "active employment as soon as work became available for them." Thus, Respondent refused to immediately return the unfair labor practice strikers to their old jobs, refused to discharge the admit- ted "permanent" replacements, and offered to reemploy the strikers only as work became available. Because all unfair labor practice strikers, including the instant strik- ers, are entitled, on their unconditional offer to return to work, to immediate reinstatement to their former jobs, with the discharge of any replacement, if necessary, or if such jobs no longer exist to substantially equivalent posi- tions, they may not be treated, if that was Respondent's intent, as mere economic strikers as Respondent was ap- parently treating them, and according them, at most, the more limited rights to reemployment which the Act grants to economic strikers under Laidlaw Corp., 171 NLRB 1366 (1966), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). I conclude that Re- spondent's refusal of immediate reinstatement to the unfair labor practice strikers and, as here, its willingness to accede to reemploy them only "as work became avail- able" not only violates Section 8(a)(1) and (3) of the Act, Exchange Bank, 264 NLRB 822 (1982), Airport Parking Management, supra, but also causes the backpay period to run not from the 5-day period following the uncondi- tional offer to return to work but from the date of the unconditional offer to return itself. Exchange Bank, supra; Newport News Shipbuilding, 236 NLRB 1637, 1638 (1978); Drug Package Co., 228 NLRB 108, 114 (1977). Thus, backpay herein shall run from June 28, 1982, the date of the Union's first unconditional offer to return to 34 Because the record shows that all existing employees went out on strike, the "permanent employees" were permanent replacements 649 work, notwithstanding that Respondent's violation of Section 8(a)(3) and (1) of the Act, in failing to immedi- ately return them to work occurred on June 29, 1982. Moreover, because reemployment would apparently be to jobs under unlawfully implemented terms and condi- tions of employment, Respondent's offer is further in- valid. Brooks, Inc., 228 NLRB 1365, 1368 fn. 18 (1972). Notwithstanding any contrary Respondent argument, it should also be noted that the Union's unconditional offer to return to work is not rendered conditional by the Union continuing to strike in the face of Respond- ent's June 29 declination of the Union's offer, NLRB v. McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977). The Union's offer (June 28; July 13) was not an "all or none" offer to return immediately; it was admittedly an unconditional offer to return. Nor were Bucella's subsequent state- ments, objecting to Respondent's evident offer to return the strikers only when employment for them became available ("piecemeal" reinstatement), the imposition of an "all or none" condition. Rather, after Respondent stated (unlawfully) that the strikers would be reemployed only as work became available, Bucella said that the em- ployees would not return "piecemeal." H & F Binch Co., 188 NLRB 720, 726 (1971). This is not imposition of a condition of "all or nothing" and it does not undermine or waive the Union's unconditional offer. Under the cir- cumstances, it constitutes only union rejection of Re- spondent's offer of mere Laidlaw rights instead of an offer according the strikers' rights as unfair labor prac- tice strikers, including the discharge of permanent re- placements.35 See particularly Airport Parking Manage- ment, supra, and J. G. Rutter-Rex Mfg. Co., 158 NLRB 1414, 1438 (1966); modified on other grounds 399 F.2d 356 (5th Cir. 1968), modification reversed 396 U.S. 258 (1969). 2. Respondent's discharge of 33 striking employees The consolidated complaint of October 7, 1982, al- leges, inter alia, that commencing July 12, 1982, and ending August 26, 1982, Respondent discharged 33 strik- ing employees in violation of Section 8(a)(1) and (3) of the Act.36 Industrial Relations Director Robert Jewell, 36 Respondent's declaration to its unfair labor practice strikers that they had been replaced by "permanent employees" itself violates Sec 8(a)(1) of the Act Laredo Coca Cola Bottling Co, 241 NLRB 167, 177 (1979) 36 I have found, above, that Respondent, on and after June 28, 1982, violated Sec 8(a)(1) and (3) of the Act in failing, on the employees' un- conditional offer to return, to immediately reinstate striking employees, discharging, if necessary, any replacements I predicated this finding on the conclusion that the strikers, commencing with the inception of the strike on May 13, were unfair labor practice stokers, protesting Respond- ent's unfair labor practices which commenced on and after May 5, 1982 Thus, as will be noted hereafter, all strikers not discharged for cause before June 28, 1982, will be entitled to backpay from June 28, 1982 (the date of the Union's offer of unconditional return to work on their behalf), Exchange Bank, 264 NLRB 822 (1982), to the date after June 28, 1982, on which Respondent may have lawfully discharged them for cause Be- cause no striker was discharged before July 12, all lawfully discharged strikers will be entitled to backpay from June 28 to July 12 or the date of their later lawful discharge For unlawfully discharged strikers, and all other stokers, the backpay period runs to a lawful Respondent offer of reinstatement, which, on this record, has not been made 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having admitted that all 33 discharged strikers were dis- charged for alleged misconduct on the picket line, the General Counsel proved a prima facie case37 of unlawful discharge in violation of Section 8(a)(1) of the Act, thereby shifting the burden to Respondent to show an "honest belief' of the employees' engaging in such seri- ous misconduct as to justify the conclusion that the em- ployees had lost that mantle of Section 7's protection which is accorded to employees engaging in protected activity. Once Respondent proves an "honest belief' of employee serious misconduct, the burden of proof then returns to the General Counsel to prove either that the employee did not, in fact, engage in the particular mis- conduct or, in the alternative, that the conduct was trivi- al (a matter of "animal exuberance") or that the conduct was condoned or provoked. NLRB v. Burnup & Simms, 379 U.S. 21 (1964); Rubin Bros. Footwear, 99 NLRB 610 (1952); Gold Kist, Inc., 245 NLRB 1095 (1955); Newport News Shipbuilding, 265 NLRB 716 (1982); A. Duie Pyle, Inc., 263 NLRB 744 (1982). The alleged misconduct must be either the employee's own misconduct or the employee must have joined in or condoned the conduct of other persons, Coronet Casuals, Inc., 207 NLRB 304 (1973). In the case, as here, of discharge of unfair labor practice strikers, the alleged employee misconduct must be balanced against the nature and extent of the provoca- tion, if any, afforded by the employer's unfair labor prac- tices. NLRB v. Thayer Co., 213 F.2d 748 (1st Cir. 1954), cert. denied 348 U.S. 883 (1955). The employer's com- mission of unfair labor practices, however, does not im- munize a striking employee's otherwise disabling miscon- duct, regardless of whether the unfair labor practices in- duced the strike. Rather, the test is whether the employ- er's unfair labor practices were "so blatant that [they] provoked employees to resort to unprotected action." Newport News Shipbuilding, supra, 265 NLRB 716, citing Auto Workers Local 833 v. NLRB, 300 F.2d 699, 702-703 (D.C. Cir. 1962); Drug Research, Inc., 233 NLRB 253, 259 (1977). In the instant case , as in Newport News Shipbuilding, supra, I can give little Thayer weight to the employees' side of the balance. In Newport News Shipbuilding, supra, the 8(a)(5) unfair labor practice which induced the strike was the employee's refusal to recognize the Union pend- ing resolution of its objection concerning an underlying Board-conducted election. Here, the 8(a)(5) violation is the unlawful unilateral implementation of a job combina- tion system, without union consent, prior to a good-faith bargaining impasse. There is no employer use of force (except in protective response to mob violence, herein- after noted), no withdrawal of recognition, no efforts at unlawful retaliation, and no patent discriminatory dis- charges. Although Respondent uttered an unlawful threat if the employees went on strike, unlawfully imple- mented all its contract proposals, failed to lawfully re- spond to the Union's offers to return to work, and, more important, by June 29, "permanently" replaced the strik- ing employees, I find that a crucial element to be weighed is that the May 13 strike was caused in signifi- cant part by the premature job combinations implementa- " Respondent conceded the puma facie case (R Br 125) tion of May 5 and 6. While the May 11 unilateral imple- mentation of lower wages, no pensions, and the other re- gressive terms offered by Respondent also precipitated the strike, yet because the Union had already accepted the substantive terms of the lower wages, lack of COLA, job combinations, etc., albeit as a fait accompli and part of Respondent's bad-faith bargaining, nevertheless, Re- spondent's unlawful contract actions which induced the strike were, at least in part, substantively tentatively ac- ceptable to the Union's bargaining committee. Thus, on balance, Respondent's strike-precipitating unfair labor practices, while resulting in the May 8 rejection of the tentative agreement and the May 13 strike, cannot be said to be so "blatant" that they provoked employees to resort to unprotected action, Auto Workers Local 833 v. NLRB, supra. Thereafter, Respondent acted consistently with its ap- parent conclusions, however mistaken, that its employees were mere economic strikers and that its replacement of them with "permanent" replacements was lawful. It in- formed the Union that the strikers, in substance, would be offered "employment" when work became available (cf. Laidlaw Corp v. NLRB, 414 F.2d 99 (7th Cir. 1969)). While it is true that the strikers, Respondent's longtime employees, commencing May 20, 1982, observing re- placements working in their stead, may well have been provoked, and similarly provoked when Respondent, on June 29, violated Section 8(a)(1) and (3) of the Act by refusing to immediately reinstate them on their uncondi- tional offer to return to work, and by replacing them with "permanent replacements," such conditions would exist whether the strike was an unfair labor practice strike. Respondent has a clear right to hire replacements for even unfair labor practice strikers, although not per- manent replacements. The emotional provocation result- ing from the strikers being replaced would therefore have occurred if the strike were a mere economic strike. Thus, singly, or in combination, I do not find that Re- spondent's unfair labor practices together with the subse- quent June 29 "permanent" replacement of strikers were sufficient to induce the various acts of employee miscon- duct which occurred herein. Moreover, other elements must be weighed in Thayer balance. I have taken into the most serious account, for the purpose of Thayer balancing, the determination of who set the example for, and what encouraged or pro- voked subsequent striker misconduct. The uncontested evidence is that in June 12 violent incident (i.e., after Re- spondent's unlawful replacement of strikers but before Respondent unlawfully rejected the Union's offer to return) involving hundreds of persons including striking employees (for which incident Respondent's guards, on this record, had no unlawful responsibility and in which they used firearms only in apparent self-defense), the Union's chief agent Bucella urged the mob, on Respond- ent's property, to burn Respondent's guard's truck. The truck was first overturned and then burned by the mob. Thus, this June 12 union-inspired violent misconduct, though occurring after the hiring of replacements, long preceded any provocation inspired by the strikers being unlawfully refused reinstatement commencing June 29. PRC RECORDING CO. Furthermore, I share with the General Counsel (G.C. Br. 86) and Respondent (Br. passim) a feeling of incredu- lity that, in the midst of numerous acts of truck -burning, picket line rock-throwing, nail scattering, glass breaking, occasional pistol shots, and ice-picking of automobile tires, none of the General Counsel 's witnesses, all veter- ans of the picket line, ever identified a participant there- in, much less an employee participant , where the result would be inculpatory. When, in addition, certain of the General Counsel's witnesses allegedly never even saw the nails and broken glass in Respondent's driveways, re- gardless of responsibility, I agree with the General Counsel that the testimony of such witnesses is "less than fully plausible." When he adds that such testimony, how- ever, is not "totally improbable," he is involved in exis- tential speculation. Lastly, I observed at the hearing, and the transcript of testimony confirms (testimony of employees Tate, Sloan, and Dudley, supra, discussed in relation to violation of Sec. 8(a)(1) in the "Davidson" incident) a certain cava- lier and sporting attitude among the strikers , in their breaking and scattering of glass on Respondent's drive- ways. Whether this misconduct was a ritual to escape boredom or came from an excess of beer or otherwise is immaterial. In any event, I conclude both that the Gen- eral Counsel has proved a prima facie case of the unlaw- ful discharge of the 33 strikers and that neither Respond- ent's strike-precipitating unfair labor practices nor its subsequent unlawful conduct of June 29 was so "blatant" as to be legally provocative of striker unprotected activity. U. Respondent's Rescission of Nine Discharges on November 29, 1982 Commencing July 12, 1982, Respondent discharged a total of 33 of its striking employees allegedly for strike- related misconduct. As above noted, I have found, and Respondent has conceded, under NLRB v. Burn up & Sims, 379 U.S. 21 (1964), and Rubin Bros. Footwear, supra, that the General Counsel, on the basis of Jewell's testimony, proved a prima facie case of Respondent's violation of Section 8(a)(1) in all 33 of these discharges. Of the 33 discharged employees, 9 employees (Marlene Anderson, Sarah Drook, Catherine Hatfield, Bertha He- drick, Sherry Ritchie, Pamela Rogers, Elizabeth Wil- loughby, Sophie Van Winkle, and Florence Watson) had their discharges rescinded by Respondent on November 29, 1982. They were then offered reinstatement to their jobs by letters, dated November 29, 1982, but the offers, I find, were to jobs in the new, combined classifications implemented commencing May 5 and to jobs with the changed pay rates and other terms and conditions of em- ployment implemented unlawfully by Respondent on and after May 11, 1982. In fact, none of the nine employees returned to work. There is no evidence, in the cases of these nine em- ployees, that Respondent harbored an honest belief of their engaging in any disqualifying misconduct or other defenses as the basis for their original discharges. I there- fore conclude that the General Counsel, having proved a prima facie case with regard to the discharges of these nine striking employees and Respondent having offered 651 no lawful defense thereto, has proved by a preponder- ance of the credible evidence that these discharges vio- lated Section 8(a)(1) of the Act, as alleged.38 With regard to Respondent's rescission of these nine dis- charges and its offers of reinstatement, these employees were offered reinstatement on working conditions unlaw- fully imposed by Respondent. Respondent may not assert that it has offered full and unconditional reinstatement to these unlawfully discharged strikers at their old jobs, which is its legal obligation to unlawfully discharged unfair labor practice strikers, and yet condition their re- instatement on the employees accepting employment under illegally imposed conditions which do not maintain the status quo ante terms and conditions of employment. Brooks, Inc., 228 NLRB 1365, 1368 fn. 18 (1977). Cf. H & F Binch Co., 188 NLRB 720, 725-726 (1971). I there- fore conclude, consistent with the General Counsel's ar- gument, that Respondent's offers of reinstatement to these nine employees were not unconditional and there- fore insufficient, as a matter of law, on the employees' failure to respond or rejection thereof, to terminate the employees' right to lawful offers of reinstatement or to backpay continuing without hiatus from the date of dis- charge. Canova Moving & Storage Co. v. NLRB, 712 F.2d 1074 (9th Cit. 1983); Brooks, Inc., supra, Craw & Sons, 244 NLRB 241, 242 (1979) (the striking employees' fail- ure to even reply to a conditional offer of reinstatement does not cut off continuing backpay); Southwestern Pipe, 179 NLRB 364, 365 (1969). V. With Regard to the Remaining 24 Striking Employees Discharged for Alleged Misconduct 1. Bertha Baker The evidence shows, and I find, as follows: Respond- ent's July 12, 1982 letter to Bertha Baker informed her that she was discharged as of that date because she was observed on June 29, 1982, "throwing a rock at a truck which caused damage to the vehicle" (G.C. Exh. 42-A). The incident for which Baker was apparently dis- charged was her alleged throwing of a rock on June 29 which hit a car driven by Tape Department Foreman Mercer, who knew and identified Baker. Foreman Mercer testified that as he left work on June 29 about 7:05 p.m., driving east on Rich Road (Rich Road runs east and west; Respondent's plant is north of Rich Road), he saw three picketers near a plant entrance. One of the picketers was Baker. He testified that he drove by and saw Baker throw a rock which hit the rear bed of his pickup truck, and that the other picketers as well as Baker were throwing rocks at vehicles behind him. The Charging Party observes (Br. 98) that there was no testi- mony that the vehicle was damaged. The General Coun- sel notes (Br. 37) that Mercer "inexplicably" continued to drive and did not turn into the plant to report the ac- cident which was the required practice. 38 Under Burnup & Sims, supra, and Rubin Bros. Footwear, supra, it is unnecessary to reach or decide the question of whether these actions also violate Sec 8(a)(3) of the Act National Steel Corp, 242 NLRB 294 (1979) 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no dispute that (C.P. Br. 99) Baker "often times made believe or feigned throwing objects at cars ... [often] feigning throwing objects [by holding] a brown cigarette case in her hand, thus giving the appear- ance of throwing a rock." The Charging Party concedes (Br. 99) that this Baker idiosyncracy "could explain the Respondent's witnesses' honest belief that she was the perpetrator." I agree. I thus conclude that Baker's admit- ted habit of repeatedly feigning to throw rocks, in the presence of other employees throwing rocks, where a missile in fact did hit Mercer's truck, could and did ac- count for Respondent's necessary requisite "honest belief" under Burnup & Sims, and its progeny. In addition to admitting that she would feign throwing rocks while other persons on the picket line were throw- ing rocks at passing vehicles, but denying that she ever threw a rock or missile, she admitted breaking bottles in Respondent's driveways and denied the further incidents to which Respondent's witnesses gave testimony: (a) Respondent's employee Conder testified that on June 29 as she left the plant at 7:30 p.m., driving her car east on Rich Road, she saw Baker, whom she knew, pick something up and saw Baker, with a side-arm motion, throw something and then heard a thud in the back of her car. She did not see Baker release the object. This incident was not named in the discharge letter. Baker denied throwing anything at Conder's car. The Conder car was traveling about 15 to 20 miles an hour when her car was hit and she testified she saw Baker through an outside mirror. (b) Employee Sadler testified that on August 3, as he drove to work with his wife and the Mercers as passen- gers, and while he was traveling 15 to 20 miles per hour, Baker threw an object at his car as he passed a neighbor- ing plant. The object hit his roof and Sadler did not stop. Mercer was unable to identify who threw the object, notwithstanding that he was on the side of the car near- est to the crowd from which the missile came. I do not believe Baker's denials. The General Counsel alludes to Conder's alleged poor recollection, and would discredit Sadler because if Mercer could not identify who threw the rock and he was nearer to the area from whence the rock came, then Sadler should not be cred- ited. I do not agree. I conclude, only with respect to the March incident that Baker, a chronic rock thrower, threw the rock at Mercer's trick. The General Counsel, with Baker discredited, did not bear his burden of prov- ing by a preponderance of the evidence that Baker was not indeed the rock thrower on June 29 against Mercer. I therefore recommend to the Board that the complaint, insofar as it alleges that Bertha Baker was unlawfully ter- minated on July 12 be dismissed. Rock throwing at moving vehicles is not acceptable picket-line behavior. The consequences of such acts are unforeseeable both with regard to the driver and passengers in the vehicle and other persons using the highways. See Gold Kist, Inc., 245 NLRB 1095 (1979); Conoco, Inc., 265 NLRB 819 (1982). 2. Roberta Blair Respondent's July 12 letter to Blair discharging her ef- fective on that date was based: "On numerous occasions at PRC Recording Co. you were observed engaging in the following acts of misconduct: Throwing nails in the driveway resulting in damage to numerous tires." Re- spondent's witnesses testified that they saw Blair throw nails in the Company's driveways and entrance ways on June 8, 27, and 28. Respondent's own supervisor of guards, Lavern Tayler, testified that on June 8, at 8:30 a.m., using binoc- ulars, he watched four or five persons, including Blair, patrol across the driveway at the main entrance. There- after Tayler, accompanied by one of the guards hired by Respondent, went to Blair's patrol location and found galvanized and other types of roofing nails. As they ap- proached Blair, Blair placed her foot over some of the nails. Tayler moved her foot off the nails, picked them up, and placed them in her pocket, thereafter, inserting the retrieved nails in an envelope which she sealed and offered in evidence. Tayler knew Blair from 10 years of seeing her on a daily basis while she worked for PRC. Supervisors Jewell and Douglas testified that on June 27, about 3 to 3:15 p.m., they observed Blair with binoc- ulars from the plant cafeteria while she was walking back and forth across the main entrance dropping hand- fuls of nails from her pocket onto the driveway. Both Jewell and Douglas saw her bending over apparently to stand the nails on their heads. They also testified that they saw her perform the same acts on June 28. Blair testified that she was never at the picket line except between 10 a.m. and 2 p.m. because she had to care for her retarded daughter at home. Thus , Blair testi- fied that she always left the picket line at 2 p.m. or earli- er and, in any event, never dropped nails in or near Re- spondent's property and denied, in particular, that Tayler ever touched her foot to pick up nails. The General Counsel also attacks Tayler's credibility because she did not identify the other picketers who were with Blair at the time. In addition, the CIB private guard39 was not called to corroborate Tayler's testimony. The General Counsel admits that it was not uncommon during the strike to see nails or glass at or near the driveways (Br. 41). In addition to Blair's alibi with regard to her daugh- ter, the General Counsel asserts that it was "ludicrous and futile" (Br. 41) for a picket to step on nails at the time that the guard was in the act of picking them up. I find nothing ludicrous in her actions. In addition, the General Counsel argues that there was nothing Respond- ent considered serious in this action because Respondent knew of Blair's dropping the nails 5 weeks before she was terminated. While I might tend to question Douglas' credibility, I was impressed with Jewell's credibility. I credit Tayler and Jewell over Blair based on my obser- vation of them as witnesses, the intrinsic likelihood of their testimony, and my rejection of Blair's alibi. Therefore, I credit Respondent's witnesses and dis- credit Blair. Her repeated actions are not in the category of "animal exuberance" or triviality. She was specifically identified on more than one occasion; her actions were designed to puncture tires, actions which lead to high- 39 Lavern Tayler is a Respondent employee The CIB guards are armed guard employees of a security service Respondent hired commenc- ing with the May 13 strike I PRC RECORDING CO. 653 way accidents. Even without injury, they should not be condoned. Conoco, Inc., supra. I recommend to the Board that the consolidated com- plaint, insofar as it alleges the unlawful discharge of Blair, be dismissed. Respondent proved "an honest belief" of Blair engaging in serious misconduct, the Burnup & Sims requisite; the General Counsel has not proved by a preponderance of credible evidence that Blair did not engage in these acts or that the dropping of nails in the pathway of known cars entering or exiting from these entrances was a trivial matter. Newport News Shipbuilding, 265 NLRB 716 (1982). 3. Pauline Smith and Roger Block Smith and Block received identical letters from Re- spondent, dated August 2, 1982 (G.C. Exhs. 42-C and 42-P). Both letters note immediate termination because both were observed, on August 2, 1982, at the main en- trance, "throwing nails into the driveway which resulted to damage to tires of vehicles entering the property. Respondent notes (Br. 216) that Plant Manager Doug- las and his secretary, Doris Lorton, together observed Smith's and Block's joint misconduct. Lorton testified that around 11 a.m. on August 2, while looking out of Douglas' office window, with binoculars, she watched Block and Smith (whom she knew) walking back and forth across the main drive throwing or dropping nails on the driveway. Douglas substantially corroborated Lorton's testimony. Block defended on the ground that he was not at the picket line after 10 a.m. because he always had a ride home. Respondent, however, points to the fact that on cross-examination he testified that he mostly walked back and forth from the picket line to his home. Smith testified that she threw nails on Respondent's driveway only once. She testified that she saw a security guard picking up nails near the main entrance as it abuts Rich Road. This was in late July or early August while she picketed at the main drive. She testified that she saw many piles of nails near her car and those of the pickets parked alongside of the north side of Rich Road. She then collected a cupful of nails and approached the main drive where she saw a CIB guard (known as "mad dog"), picking up nails in the drive.40 She said to him: "If you guys have a right to throw them nails down here for us to pick up, we have the right to throw them back at you, right?" According to Smith's credited testimony, the CIB guard replied: "all right" and then Smith threw the handful of nails on the drive. The guard just walked toward the plant. 40 There was much testimony of nails and broken glass in the drive- ways The General Counsel and the Charging Party, at the hearing, seemed to imply that Respondent's guards were "salting" their own driveways with nails and broken glass. I reject any such implication as unsupported I do, however, find that nails were distributed along Rich Road where the pickets' cars were parked. I do not find that the pickets placed nails next to their own cars On the contrary, the evidence shows that guards and other nonstriking personnel of Respondent picked up nails previously distributed on Respondent's driveways and threw them, sometimes by the cupful, onto the roadways where the pickets' cars were parked Just how the nails and glass found their way onto Respondent's driveways, in the first place, is an issue in this case. I believe that the evidence, resolving the testimony of Douglas, Lorton, Smith, and Block, shows that Lorton's and Douglas' observation of Smith and Block indeed oc- curred, as they said, about 11 a.m. on August 2; and that Block was aiding Smith in redistributing some of the nails (found near her and other pickets' cars) back onto Respondent's driveway. Respondent called no guards or other witnesses to attempt to identify the mad dog CIB guard or to undermine Smith's testimony. Rather, I be- lieve that Lorton and Douglas saw Smith and Block dropping nails on the driveway and that it was in re- sponse to, and part of, Smith's conversation with the CIB guard in which Smith and Block dropped the nails. I conclude that, in fact, they were provoked by finding nails under the pickets' cars and that they dropped the nails in Respondent's driveway as Smith testified. Thus, while I reject Block's alibi that he was not then on the picket line, I find that he, along with Smith, reacted to the provocation of finding nails near their cars and were throwing them on Respondent's property. I therefore find that their discharges for throwing nails on August 2 was unlawful because I credit Smith's testimony which, I find, also gives a defense to Block. I conclude that al- though Respondent had an honest belief that they were unlawfully throwing nails on the driveway, their throw- ing nails back on the driveway was provoked and "justi- fied." Certainly Respondent's guard appeared to acqui- esce in the guard's responsibility for nails near the pick- ets' cars and for Smith's retaliation. I therefore conclude that their discharges on August 2 violate Section 8(a)(1) of the Act. As the General Counsel points out, the pickets' belief that Respondent's agents were throwing nails and similar objects at or near their cars was justified. This necessari- ly leads to a discussion concerning the General Counsel's argument of general Respondent provocation regarding Plant Manager Douglas and the scattering or depositing of nails where pickets parked their cars. According to the credited testimony of striking employee Pauline Rob- erts (a/k/a Pauline Hurst), who placed the date of the event on August 24, picketing employees Corena Gomez and Rose Harrison saw Douglas place nails under Pau- line Roberts' car. Roberts testified that she saw him do so from a distance about 10 feet, told him not to do so, but he ignored her and placed a handful of nails under her front and rear tires. He then returned to his car and drove away, approaching Gomez and Harrison. He got out of his car with a handful of nails and walked toward Gomez. At a distance of about 10 feet, Gomez, who had seen him depositing nails under Roberts' car, picked up a hammer and told Douglas that she would hit him in the head with the hammer if he put nails under the tires of her truck. Douglas then hesitated, returned to his car, and left. Gomez removed the nails which Douglas had placed under Roberts' car. Rose Harrison, who was with Gomez, corroborated Gomez' and Roberts' testimony. In addition, Roberts testified that, on July 27,41 she saw Douglas throw nails under a car owned by striker 41 Thus, even if Douglas' conduct constituted legal provocation, the provocation would relate to employee misconduct only on and after July 27. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lola Kirkland. Kirkland testified that on that day, Doug- las stopped his car, picked up a handful of nails and threw them all over Kirkland's car which was parked at the junction of Rich Road and the main entrance. He then drove away. Kirkland was also on the picket line on August 24 and saw Douglas throw the nails under Pau- line Roberts' car. I discredit Douglas' denial of throwing nails on or under strikers' vehicles and discredit his denial of the conversation, above, with Gomez in which Gomez threatened to hit him with a hammer . I find, on the con- trary that he did have such a conversation and he did throw nails under pickets' cars. I do credit his testimony that he received 10 to 15 punctured tires while using Re- spondent's driveways but I discredit him insofar as he denied that these experiences so angered him that he was not motivated by feelings of retaliation. Although such feelings might understandably provide the basis of wholly biased testimony, I do not generally discredit Douglas' testimony in terms of what he observed with regard to nail distribution by employees. Rather, I here credit Gomez', Harrison's, Kirkland's, and Roberts' testi- mony with regard to these incidents. I do note that, as the General Counsel suggests, one element that must be taken into account in assessing the seriousness with which Respondent saw its employees' misconduct was the fact that Gomez, who threatened to brain the plant manager with a hammer, was never discharged although employees who broke glass in the driveway or dropped nails in the driveway were discharged. The inference which I draw from these facts is that Douglas, angry and provoked by fmding nails in the driveway and having his tires repeatedly punctured, retaliated against Gomez, Harrison, Kirkland, and Roberts. He did not discharge Gomez even though Gomez threatened him with serious bodily injury because Gomez was not at fault and he was. These Douglas incidents do not, however, dispose of the question of whether Respondent might reasonably seek to discharge its employees for serious misconduct, whether this was the breaking of glass in Respondent's driveways or the distribution of nails for the purpose of puncturing the tires of Respondent's supervisors and re- placement employees. I do not conclude that Douglas' actions (themselves provoked, in part, by striker activity) were so generally provocative as to excuse contempora- neous or subsequent misconduct by the strikers. 4. Michael Boatman Boatman, a shop steward, was discharged on July 12 for incidents of June 11 and July 8 and 9. With regard to the June 11 incident, Respondent stated in the discharge letter that he was observed throwing a bottle which struck a car; there is no reported incident of July 8; but on July 9, according to Respondent, about 8:15 a.m., he threw a glass bottle containing paint at Plant Manager Douglas' car which glass bottle broke causing the paint to splatter on the car. Industrial Relations Director Jewell testified that about 4:30 p.m. on June 11, while he was driving his car on Rich Road in a convoy of 40 vehicles, with 100 to 125 persons standing along Rich Road , he saw Boatman, in a crowd, 40 to 45 feet away, throw a bottle at the convoy of cars. Although jewel] testified that he did not see the bottle hit a car, he was told the next day by Tape De- partment Manager Preston that the bottle had hit Pres- ton's car. Preston testified that he saw the crowd throw- ing rocks, bottles, and sticks at the cars and saw Boat- man actually throw a bottle which hit his car (Tr. 3108- 3111). The bottle which was thrown from a distance of about 35 feet hit the hood of the car on the right side about 14 inches from the windshield and 3 inches from the fender. It caused a dent (with removal of the paint) and $139 for repair. Preston's car was apparently moving but the speed is not revealed in the record. On July 9 Boatman, according to the testimony of Plant Manager Douglas, threw a bottle of paint at Doug- las' car. The bottle broke and splattered red paint over the windshield and body of his car. Douglas allegedly swerved to his left almost losing control of the car. Douglas immediately reported the incident to a police officer who apparently refused to arrest Boatman on the grounds that the policeman did not see the event occur and the event was merely a misdemeanor. Other alleged Boatman misconduct included the throwing of a tire iron at a replacement employee's vehi- cle (Scott Thompson) and, on June 15, smashing the window out of a bus loaded with two sheriffs and their striker-prisoners. Boatman pleaded guilty to the criminal charge stemming from the second incident on the advice of his lawyer who allegedly told him that because two police officers would identify him as the perpetrator of the act, it was worthwhile that he plead guilty and re- ceive a suspended sentence. He did so. These two latter incidents did not form any part of the discharge matter asserted by Respondent. I credit Jewell's and Preston's testimony and do not credit Boatman's various denials with respect to these events. For credibility purposes, 42 I am impressed by his pleading guilty to the criminal charge of smashing a window of a bus containing police officers regardless of the leniency of the sentence. Furthermore, I do not pass on the July 9 incident but, relying solely on the June 11 incident, conclude that his throwing a bottle at the car in which Preston was riding was a sufficiently grievous act to merit his being discharged by Respondent on July 12. The General Counsel believes that Boatman's denial of having participated in the June 11 bottle-throwing inci- dent should be credited because, inter alia, Preston was unable to recall what Boatman was wearing and could not identify any of the persons around Boatman in the crowd, could not recall whose car was behind him and could not identify any of the other 100 persons running in the direction of his car and throwing rocks and bottles at the convoy. I do not understand the General Coun- sel's argument that these circumstances, occurring in the midst of mob violence, certainly enough to interfere with one's perception and concentration and prevent other ex- traneous identification, should so undermine Preston's credibility as to warrant rejecting his testimony and the 42 I have credited Boatman's (like Glemta Dudley's ) testimony in other areas, notwithstanding I do not credit his testimony regarding the above events. NLRB v Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950) PRC RECORDING CO. corroborating testimony of Jewell. I do not chose to do so. Rather, I credit them and discredit Boatman's denial. I recommend to the Board that the consolidated com- plaint, insofar as it alleges Boatman's unlawful discharge, be dismissed. I conclude that Respondent 's testimony constituted the requisite "honest belief"; that Boatman was engaged in serious misconduct on June 11 and I conclude that Boatman's testimony together with the tes- timony of his alibi witnesses was not credible. As above noted, I need not pass on any of the other incidents al- leged by Respondent and controverted by the General Counsel as forming a lawful basis for his being dis- charged. Independent of my recommendation for dismis- sal of the unfair labor practice allegation, I would, inde- pendently, recommend to the Board that Boatman, on his plea of guilty, be denied backpay dating from the date of this unlawful act, June 15, 1982. Ludwig Fish & Produce, 221 NLRB 1306 (1975). Compare Hillside Avenue Pharmacy, 265 NLRB 1613 (1982), with Arthur Briggs, Inc., 265 NLRB 299 (1982). The plea of guilty on the advice of counsel was due to the fact that two police officers were expected to testify against him. See Drug Research, 233 NLRB 253, 260 (1977). Boatman's June 11 actions against Preston's car are not "minor incidents of misconduct." Coronet Casuals, 207 NLRB 304, 305 (1973). 5. Glenna Phillips By letter of July 12, 1982, Respondent discharged Glenna Phillips for her May 20, 1982, "hitting a car with a club causing damage to the vehicle." Respondent, commencing on May 20, 1 week into the strike, began taking applications for replacement employ- ees. About 5:45 to 6 a.m., there were from 125 to 150 pickets gathered in the 300 feet between the east and main entrances to Respondent's plant on Rich Road. About this time, Sheila Braughton, daughter of Respond- ent's supervisor, Paul Mifsud, turned her car from Rich Road into the main entrance. Braughton's testimony and the video tape of the incident show that Braughton's car had either stopped or slowed to the point of stopping while about a dozen pickets approached the car. Some were carrying baseball bat-sized sticks. One of those so equipped and approaching the car, coming to a position in front of it, was Glenna Phillips. Other pickets' came to the driver's side and the rear. Aside from the ordinary bias of witnesses to any con- frontational situation, including this, the chief witnesses to the following events displayed various testimonial de- ficiencies: Jewell was over 100 feet away, Braughton was obviously flustered and subject to exaggeration, and Phil- lips was angry and retaliatory. From the various versions of the incident and with the aid of the video tape I make the following further findings: whether from a blow on the car or the surrounding physical presence of and yell- ing by the pickets, or otherwise, Braughton, a young woman, was sufficiently frightened at the point of stop- ping in the entrance to have her foot slip of the brake resulting in the car lurching forward (whether her foot also struck the gas pedal is not quite clear). Although the issue need not be resolved, I find that she did not inten- tionally permit the car to move forward. At the moment 655 that the car lurched forward, Phillips, both from a defen- sive reaction and to reflexively retaliate against the car which was then striking her, brought her stick or bat down on the hood of Braughton's car with a good whack. The moving car then propelled her off to the driver side of the car as the car advanced. In the act of being rolled aside, she gave the car another good whack on the driver's side. At this point, many of the other pickets beat on the car as well. In making these findings, I conclude that it is unneces- sary to decide whether the car was stopped at the time that Phillips appeared to momentarily block the ingress of the car. I specifically find, however, that she did not strike the vehicle until the vehicle struck her and that she struck the vehicle in response to the vehicle striking her. The Board, in Coronet Casuals, supra, 207 NLRB at 305, held that a picket is not disqualified for reinstate- ment despite participation in various incidents of miscon- duct which include "momentarily blocking cars by mass picketing." Thus, while Glenna Phillips' blocking the in- gress of the car is not to be made a matter of independ- ent right or otherwise condoned, she is not to be dis- charged for blocking ingress momentarily, which I find she was doing at the time the car struck her. Ordinarily, it might well be concluded that one who takes the risk of blocking ingress on a picket line, even momentarily, does not have a corresponding right, in the face of the car in- advertently causing her injury, to flail at the car with a wooden club. However, here, I do not believe that Glenna Phillips' reaction was premeditated; rather, it was an instinctive warding off of the car and a reflexive reac- tion to being struck by the car, regardless of the motive of the driver who was then running her down. I similar- ly find that her second striking of the car was also a re- taliatory act for being assaulted by the car, regardless of the benign motive of the driver. Taking into account the fact that Phillips' blocking of the Braughton car was a momentary affair at the time she was struck, and without condoning the use of clubs in the guise of picket signs by the strikers, I conclude that under all the circumstances, Glenna Phillips' twice striking the car in rapid sequence was not the type of misconduct which would disqualify her for future employment. Nothing that Jewell testified to, or that the video tape disclosed, was inconsistent with the above findings. Whether Respondent's decision to discharge Glenna Phillips was influenced by the fact that Braughton was Supervisor Mifsud's daughter is also a matter which I have considered. The fact is that serious injury done to the car was not shown to have been the result of Glenna Phillips' attack on the car. While Re- spondent may have possessed an honest belief of Phillips' engaging in serious misconduct, the General Counsel proved, by a preponderance of evidence, on consider- ation of all the circumstances, that Phillips' actions were not disqualifying misconduct. I shall therefore recommend to the Board that the dis- charge of Glenna Phillips on July 12 be found unlawful and a violation of Section 8(a)(1) of he Act. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Mary Sue Couch Couch was discharged on July 12 for breaking the windshield of a car and beating on and damaging a car. These incidents occurred on May 20 and June 7 and 8. Jewell and Braughton testified that among the group of a dozen or so pickets who approached her car on May 20 with Phillips was Mary Sue Couch. Jewell testified that he had seen Phillips and Couch carrying bats earlier in the morning. Jewell testified that he saw Couch among that group of pickets who more or less surrounded the Braughton car and that about the same time that it lurched forward, striking Phillips, Couch hit the car with her bat over the driver's compartment. As Respondent admits, Braughton did not identify Couch by name until July 12. With regard to this incident, I would absolve Couch on the same basis as Phillips. Couch, seeing the car lurch forward and striking Phillips, sought to cause injury to the car because Phillips, merely momentarily blocking in- gress, was being run down by the car. I conclude that Couch's actions were instinctive, rather than reflective and intentional, and were mere emotional reactions to the incident. I therefore would not find Couch guilty of misconduct because of this particular reaction. I thus need not reach or decide whether Couch's alibi, as corroborated by striker Phylis Tyra, is to be credited: that she was nowhere near the Braughton car at the time of the incident. Rather, I conclude that even if she were, her conduct should be measured in the light of the ten- sions which existed between strikers and nonstrikers where, as here, this was the first day of replacements ap- proaching the picket line and was the result of emotional reaction to the provocation of a costriker being run down by an automobile. See WENO, 182 NLRB 866 (1970). Cf. Stewart Hog Ring Co., 131 NLRB 310 (1961). As above noted, Respondent's discharge letter to Couch is dated July 12. In fact, on July 12, and therefore in an incident of alleged misconduct apparently postdis- charge, Supervisor Mifsud and his daughter, Sheila Braughton, were driving to work, when they noticed two women standing on Rich Road, one of whom picked up something and threw it, hitting the car. Braughton testified that she told her father that the woman throwing the object was the same women who hit her car with a bat on May 20. Mifsud identified her as Couch. Mifsud, who testified that the incident oc- curred about 6:15 a.m., said that Couch was standing near striker Joyce Tipton and Couch made a motion as if she was going to throw something. Mifsud said that he then heard a noise on the side of his car. He then asked his daughter if she saw who had done it and the daugh- ter said it was a woman whom Mifsud identified as Couch. Mifsud testified that a policeman was standing about 10 yards from where the car was struck but turned his face the other way and ignored it. Couch knew Mifsud and knew his car but denied ever throwing anything at the car. She admitted, as the Gen- eral Counsel concedes, having thrown objects at other cars but denied ever hitting them. The General Counsel would discredit Braughton on the general proposition that her unreliable testimony re- garding the May 20 incident, wherein she identified both Couch and Phillips as striking her car, was so unworthy of belief as to cause all her testimony to be disbelieved. Further, the General Counsel would discredit Mifsud on the ground that (a) he discussed his testimony the day before he gave it with his daughter; (b) his admission that the report that he wrote on the day of the accident, according to his testimony at the hearing, was wrong in the place of the accident, apparently, by mistaking the distance by about 10 yards (G.C. Br. 54); and (c) it was highly unlikely that the police officer would not take action in view of other testimony by police officers in this case. The General Counsel also notes that Mifsud did not actually see who threw the object: all he heard was a noise and then asked Braughton , whose testimony according to the General Counsel was unreliable, who did it, and was it she who identified Couch. I credit Misfud and Braughton and discredit Couch's denial. I was not impressed with Couch's testimony re- garding her admission of throwing objects but not hitting anyone. On the question of the relative possibilities of events, my observation of Mifsud leads me to believe it highly unlikely that Mifsud would have invented this series of activities by Couch and I believe that Respond- ent established its "honest belief" under Burnup & Sims by Mifsud seeing Couch in a throwing motion and then hearing a "big bang" on the side of his car (Tr. 3408). I also credit Braughton's testimony that she saw Couch throw the object which hit the car. I do not credit Couch's denials, Couch being an admitted rock thrower, and conclude that the General Counsel failed to prove Couch's innocence. By virtue of this incident, I recom- mend that the complaint, with regard to Couch's dis- charge, be dismissed. Further, I conclude that on June 8, Couch threw a piece of brick at a pickup truck driven by Jennifer Bushey which was also occupied by Rhonda Norris, both nonstrikers. Bushey identified Couch from a prior acquaintance with her in the distribution department and saw Couch throw a rock that hit the rear window of their vehicle. Norris, through the rear window of the pickup truck, saw Couch 10 feet from the truck and Couch yelled at Norris after throwing the rock. I agree with Respondent's argument that Couch's testimony is incredible in denying these actions wherein Couch ad- mitted that she threw rocks at vehicles but "to the best of her knowledge" she never hit one, although she threw rocks from a distance of only 8 feet. I therefore conclude that both the June 8 and July 12 incidents occurred ac- cording to the description of Respondent's witnesses; that the throwing of rocks at vehicles, especially moving vehicles, renders the striking employee unfit for future service. I therefore recommend that the complaint re- garding the unlawful discharge of Mary Sue Couch be dismissed. 7. Winston DeFriece By letter dated July 12, 1982, Respondent terminated the employment of Winston DeFriece because, on June 23, 1982, "you threw a rock which broke the windshield of a car." Replacement employee Joe Trunck testified that while driving his black Oldsmobile on Rich Road PRC RECORDING CO. toward the plant, about 5:50 a.m., two persons stepped from behind a truck and one of them threw a stone, breaking his windshield. Trunck saw the assailant only from the waist up but observed his wearing a green base- ball cap and down jacket. Trunck drove directly to the plant and asked Maintenance Foreman Brobeck to identi- fy the person in the baseball hat and the down jacket. From a distance of about 60 yards, Brobeck looked out of the cafeteria window and identified DeFriece as the person. DeFnece denied owning or wearing a green baseball cap on the picket line and denied ever throwing an object at a vehicle on the picket line or in the vicinity. He did recall the black Oldsmobile going through the picket line and stones and other objects being thrown at it. He particularly remembered this car because of the large number of rocks that were thrown at it. The General Counsel would support DeFriece's denial on the ground that Trunk's testimony differed from Brobeck's about how many persons were in the group standing next to DeFriece when the identification was made, where the group was, and in what direction De- Friece was facing. The General Counsel also suggests poor lighting conditions at 5:50 a.m. on June 23 (no record proof of poor lighting conditions was offered). The Charging Party notes that Trunck's testimony is sus- pect because Trunck was unable to physically describe the person wearing the green baseball cap. The evidence is undisputed that DeFriece and Brobeck had worked to- gether for several years prior to the time that Brobeck identified him. Both the General Counsel and Respondent admit that DeFriece's pretrial affidavit to the NLRB contains the statement that on occasions he pretended to throw rocks at strike replacements. DeFriece testified, however, that he had not actually made the gestures of throwing rocks and did not tell the NLRB investigator that he had done so. Rather, he testified that he told the NLRB investiga- tor that he never pretended to throw at cars and that all he did was yell at "scabs" and give them "the finger." When DeFriece later read the affidavit he did not ask that the statement be changed. There is no reference in the affidavit to giving "the finger" to anyone. Thus, he said that the statement in the affidavit was the investiga- tor's misinterpretation. I credit Trunck's testimony and Brobeck's identifica- tion and therefore conclude that Respondent has proved a "honest belief' that it was DeFriece who threw the rock that broke Trunck's windshield while the car was moving. In view of DeFriece's pretrial affidavit, I doubt his explanation regarding its contents. I conclude, in the face of the impeaching affidavit, that the General Coun- sel failed to prove, by a preponderance of the credible evidence, that DeFriece did in fact throw the rock at the windshield. I therefore recommend to the Board that the complaint, insofar as it alleges the unlawful discharge of DeFriece, be dismissed. 8. Glenita Dudley and Vickie Hoover Both Dudley and Hoover were discharged pursuant to Respondent's letters of July 12: Dudley, for kicking a car which resulted in damage to the vehicle and for breaking 657 glass bottles in the east driveway causing damage to tires on June 4 and July 9; Hoover, for breaking glass bottles on July 9 in the east driveway which resulted in damage to tires. On July 9, at 3 p.m., Jewell using binoculars and standing in Plant Manager Douglas' office, observed Hoover and Dudley at the east entrance near Rich Road. Jewell, observing Hoover break two large milk bottles in the east entrance drive, called Company Controller Bill Magro to come in and watch. Magro picked up a second pair of binoculars and saw Glenita Dudley break bottles in the east drive. Hoover spread the glass around into the center of the entrance. Magro was unsure whether Dudley also did this. Both Jewell and Magro knew Hoover and Dudley. Dudley denied that on July 9 she threw glass in the driveway but asserted that she did see strikers Tate and Sloan do so. Sloan and Tate (neither of whom were dis- charged or disciplined) testified that it was they who threw glass in the driveway of the east entrance on July 9 and that Dudley and Hoover did not do so. Sloan re- called that it was on July 9 (and on approximately six other occasions) that she broke the glass because Glenita Dudley called her immediately on Dudley receiving her July 12 letter and this, according to Sloan, triggered her recollection that it was she rather than Dudley who had broken the glass on July 9. Remarkably, Tate testified that at the time she threw the glass on July 9, Dudley and Hoover were not even present (Tr. 4077). Dudley testified, however, that on July 9 she saw Tate and Sloan throw the glass in the drive. Although not inconceivable, it is odd that Tate would testify that Dudley and Hoover were not even present whereas Dudley said she saw Tate and Sloan actually throw the bottle. Regarding coinci- dences and credibility, Tate's testimony on this July 9 in- cident provides an alibi whereas almost identical testimo- ny would perfect the 8(a)(1) violation on July 30 alleged in paragraph 5(a). I have credited Tate in neither in- stance. Hoover did not testify.43 I credit Respondent's witnesses Magro and Jewell in identifying Dudley and Hoover as breaking glass bottles in the driveway of the east drive and find therefore that Respondent had "an honest belief" that these employees had engaged in such serious misconduct to justify their being discharged. I reject Tate's and Sloan's testimony as an unbelievable alibi for both Hoover and Dudley and I note that Hoover did not testify in her own defense. The General Counsel therefore failed to support her burden in showing Dudley and Hoover to have not engaged in the asserted misconduct. I recommend to the Board that the complaint, insofar as it alleges the unlawful discharges of Glenita Dudley and Vickie Hoover, be dismissed. 4' The General Counsel concedes that Hoover was involved in a pistol shooting incident on July 13 which was sufficient to forfeit Hoover's re- instatement rights and her backpay after July 13. I agree. Because she neither pleaded guilty nor was convicted, unlike Boatman, supra, I find only that she was not unlawfully discharged In view of the above find- ings, however, I conclude that both Dudley and Hoover were lawfully terminated as of July 12 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Lillie Hogg Respondent's July 12 letter to Lillie Hogg states that she was terminated as of that day because on June 7 she stabbed a tire with an ice pick and on June 8 she broke a window out of a car (R. Exh. 78). About 1 p.m. on June 7, two female persons, apparent- ly potential replacement employees, drove up to the picket line on Rich Road and parked their car. There was evidence that they and pickets then exchanged foul language regarding the pickets trying to dissuade them from seeking employment. There was also evidence that the applicants carried knives and other weapons as they left their car and entered onto Respondent's property. On entering Respondent's property they were met by Respondent's guards, Jessup and Summers, who told the applicants to enter through the employee entrance. Jessup and Summers remained near the applicants' car while the applicants went into the plant. At this point, five or six pickets, including Hogg, gathered near the ap- plicants' car. Hogg was recognized by Jessup and Sum- mers. Thereafter, as the applicants were returning to their car, Hogg and other pickets ran toward the rear of the car. Hogg admitted bending over the left rear of the car to "pretend" to do something to the car. Summers and Jessup ran toward the car. Summers credibly testi- fied he saw Hogg stabbing the sidewall of the tire with an ice pick. He grabbed Hogg's wrist and Hogg tried to jerk away. Jessup testified credibly that he saw Hogg then stand up and throw the ice pick across the rear of the car. He retrieved the ice pick after another picket at- tempted to block him. One of the General Counsel's wit- nesses, Rogers, testified that Hogg bent over the left rear tire as if to do something to the car and that it was at that point that the guards ran toward the car and the trouble started. There was no suggestion that there was damage done to the tire. Hogg denied stabbing at the tire. She was corroborated at least in part by other Gen- eral Counsel's witnesses who testified either that they did not see the ice pick or that they did not see Hogg stab- bing at the tire. I credit Respondent's witnesses and discredit Hogg's denial and any corroboration by the General Counsel's witnesses. The only difference between the General Counsel's and Respondent's witnesses is whether in fact Hogg was stabbing at the tire with an ice pick because Hogg admitted bending over the car pretending to do something. I do not believe that she was pretending but that she actually had the ice pick which the guards re- trieved. It is in evidence. I conclude that even though the action against the tire was frustrated by the guards intervention, it was a serious enough act as to support Respondent's discharging her for the attempt. Insofar as the General Counsel suggests that the ap- pearance of knives and other weapons by the applicants constituted provocation, any such provocation was so far removed from Hogg's participation in the incident as to prevent the application of the doctrine of provocation. The mere appearance of weapons in the hands of the ap- plicants did not provoke Hogg. There was no action by the applicants toward Hogg whatsoever. Furthermore, the General Counsel's citation of Hotel Holiday Inn, 265 NLRB 1513 (1982), as support for her assertion that the failure to reinstate Hogg was unlawful because it was not established that Hogg used the ice pick is factually inac- curate. In that case, the Board held that there was no proof that the striker, in fact, used the ice pick. Here, I conclude that Lillie Hogg did use the ice pick. That she was frustrated by the guards is no legal mitigation. I therefore recommend to the Board that the com- plaint, insofar as it alleges the unlawful discharge of Lillie Hogg, be dismissed. Here, Respondent had the req- uisite honest belief that Lillie Hogg was attempting to puncture the tire with an ice pick and the General Coun- sel's witnesses did not prove, by a preponderance of the evidence, that Lillie Hogg did not do so. Because I have come to this conclusion, I need not reach or pass on the further incident involving Hogg wherein she allegedly threw a bottle through the window of Supervisor Sadler's car while he was driving from work on June 8. 10. Bonnie Hoskins Hoskins was discharged by letter of August 26 (G.C. Exh. 42-G). It stated that Respondent, on August 25, 1982, observed her "throwing glass in driveway causing damage to tires." Respondent's security guard Michael Frame testified that in the late afternoon of August 25, while he was in Respondent's cafeteria observing picket activities at the main entrance, he saw Bonnie Hoskins walk onto the main entrance and throw a bottle which broke on the main entrance driveway (Tr. 3239-3240). He then re- turned to the security office, procured a camera, and took pictures of Bonnie Hoskins. In the interim, Hoskins, according to Frame, returned to the picketing area and then came back with another bottle to the driveway. He testified that he took pictures of Hoskins breaking the bottle on the driveway (Tr. 3240). The pictures (R. Exh. 88-A and B) are of no significant value in identifying Hoskins or of demonstrating the action of breaking bot- tles. Hoskins denied breaking the bottles and denied that the person in Respondent's pictures was herself. Her tes- timony regarding whether she wore her clothes or bor- rowed clothes similar to those in the picture was incon- clusive. She also denied being able to fully recognize the hairstyle or the configuration of the person in the pic- tures. Hoskins did admit, however, that she knew Frame before she went on strike, had conversations with him from time to time about work and nonwork-related sub- jects, and had no personal disagreements with him. She testified that she picketed from 2 until 10 p.m. every fourth day but she also went to the plant at other times. In fact, she was at the strike area almost every day (Tr. 4130) and she often saw glass in the driveways with the guards sweeping the glass up but denied ever seeing anyone throw glass in the driveway. The crucial issue was Frame's identification of Hos- kins. In view of Hoskins' testimony that she knew and spoke with Frame at least on several occasions, a pre- ponderance of the evidence shows that Frame was capa- ble of identifying Hoskins. Albeit, he was in the cafeteria when he saw Hoskins in the driveway, and although he PRC RECORDING CO. A attempted to get a camera with a zoom lens, there is no corroboration for his testimony in the pictures he actual- ly took. I nevertheless conclude that there was no appar- ent reason why Frame would identify Hoskins as the perpetrator of this act. I observed Frame to be believable in this testimony. Although Hoskins was a picket captain who was on the line almost every day, and although per- haps a significant number of the incidents herein con- cerning alleged picket line misconduct occur with union officers or employees, like Hoskins, prominently associat- ed with the Union, I regard this factor as concomitant rather than casual and, on the credible evidence, it does not show a plan or predisposition of Respondent to name, as the perpetrators of picket line misconduct, per- sons and employees prominently associated with the Union. Whether the most prominent union supporters were prepared to engage in misconduct to underline their unhappiness at Respondent's failure to agree with the Union thereby causing the strike is another matter. I conclude that Respondent, on the credible testimony of guard Frame, had an "honest belief" that Hoskins ac- tually broke glass in the driveway. In its turn, the Gener- al Counsel failed to prove that Hoskins did not do so. I recommend to the Board that the complaint relating to the unlawful discharge of Bonnie Hoskins be dismissed. The General Counsel suggests in her citation of Ameri- can Cyanamid Co., 239 NLRB 440, 442-443 (1978), that the "throwing of bottles is not particularly serious and is not a reason to discharge or discipline a person absent some evidence at least that there was damage to persons or property." (G.C. Br. 63.) In the case cited, there was merely evidence that the bottles were thrown onto the employer's property. There was no finding, as here, that the bottles were thrown on the driveway. I conclude that broken glass thrown in the driveway is similar to nails thrown in the driveway. Both are actions which forseeably may result in the most serious consequences to drivers or vehicles especially those, as here, exiting the driveway and proceeding onto main highways where flat tires or blowouts may cause serious injury to other persons using the roads, Conoco, Inc., 265 NLRB 819 ((1982); Gold Kist Co., 245 NLRB 1095 (1979). The fact that no damage was done is irrelevant where the striking employee sets in motion potential injury of the most seri- ous character. Had the particular broken bottle been swept up immediately, there might have been some argu- ment that the potential danger was effectively mooted. See Newport News Shipbuilding, 265 NLRB 716 (1982). There was no such proof. 11. Mavis Isaacs By its letter of August 19, 1982, Respondent terminat- ed Mavis Issacs because: "On August 18, 1982 , at east entrance of PRC Recording Co., you were observed in engaging in . . . throwing rocks at cars and damaging the vehicle." No evidence was submitted with regard to any mis- conduct on August 18. Respondent states (Br. 218) that the August 18 date was an erronerous reference. At any rate, the following evidence was elicited, without objec- tion, regardless of date, from Respondent's witnesses. 659 Respondent's guard Sergeant Frame testified that Mavis Isaacs and employees Silvia Parker and Joyce Tipton on August 12 were involved in rock throwing against vehicles entering on Respondent's property. Frame also testified that he saw Isaacs, Parker, and Baker throw bottles in the driveway on August 31. Isaacs admitted throwing a rock at a police car on August 20 as it left the plant. The police officer was Captain Farmer of the Richmond Police Department. On June 24 she was observed by a police officer, Matheny, throwing an object at a passing vehicle. The object struck the vehicle but the police were unable to stop the struck vehicle. Matheny then approached Isaacs and Isaacs did not deny that she threw the object at the vehicle but said she threw it only because scabs were crossing the picket line. On August 12 Sergeant Frame saw Isaacs, along with Silvia Parker and Joyce Tipton, breaking glass at the east entrance to Respondent's plant and shortly thereafter saw Isaacs and Tipton throwing baseball-size rocks at ve- hicles entering the east entrance. In her NLRB affidavit, Isaacs swore that she never threw rocks at the cars. Her affidavit is dated September 21, 1982 (Tr. 4820), and is therefore after the occurrence of all the above events. Without further explanation from the General Counsel or the Charging Party, Isaacs testified that she failed to advise the General Counsel of the untruthfulness of her statement because she was "advised not to tell [the Gen- eral Counsel] Mr. Dobs [sic] at the time, about the inci- dent with . . . Captain Farmer" (Tr. 4821). The General Counsel would discredit Frame generally because his testimony was "too pat, too contrived to be credible" (Br. 63). The Charging Party would exculpate the one admitted act of rock throwing at Captain Farm- er's car on the ground that it was an act of animal exu- berance induced by Farmer's inflamatory and provoca- tive statement to her that if they (the strikers) did not like the way things were run out there (at PRC) the strikers could "leave." Moreover, the Charging Party notes that the rock which hit Captain Farmer's vehicle did no damage. In the absence of other evidence, I find that Captain Farmer's statement is not sufficiently pro- vocative as to merit a rock thrown at his car. I credit Frame's testimony, find that Isaacs was a chronic rock thrower and glass breaker, and find that her discharge on August 19 was merited. Although the "erroneous" date in Respondent's discharge letter is sig- nificant, I believe that it was an inadvertent error and that the misconduct referred to was, as Jewell testified, Isaacs' conduct on August 12 in the east driveway: throwing rocks. I conclude that on August 12 Mavis Isaacs engaged in rock-throwing incidents at automo- biles, including automobiles of persons using Respond- ent's driveways, and that Respondent had "an honest belief" that these incidents were of such serious charac- ter as to warrant Isaac's discharge. The General Counsel, in turn, failed to prove that the rock-throwing incidents of August 12 in the driveways were to be accepted as acts of picket line "animal exuberance." I was not im- pressed with Isaacs' explanation for giving a false, sworn statement. Her affidavit to the Board contained a know- 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing untruth because she was "advised " not to mention the rock-throwing incident with police Captain Farmer. On this basis alone, I would hesitate to credit Isaacs' ex- planations. I recommend to the Board that the com- plaint, as it relates to Mavis Isaacs, be dismissed. 12. Carmie Johnson and Barbara Lamb In Respondent's August 26, 1982 letters to Johnson and Lamb, they each were discharged for throwing glass in a driveway causing damage to tires on August 25. Johnson was discharged for throwing glass in Respond- ent's east driveway; in the case of Lamb, it was in the "main driveway." In support of these discharges, Respondent adduced testimony from Plant Manager Douglas' secretary, Doris Lorton, who testified that on (Wednesday) August 25, shortly after 3 p.m., Jewell called her into Douglas' office to look out at the driveway at the main entrance. Lorton saw a woman make a throwing motion and saw glass shatter. Jewell told her that the woman was Bar- bara Lamb. About an hour later, from Douglas' office, she used binoculars to observe four or five pickets. One of the female pickets made a throwing motion after which Lorton saw glass on the drive . Lorton identified the woman as Carmie Johnson. Sergeant Mike Frame en- tered the office while Lorton was viewing the action and said that he also saw Carmie Johnson do it. Jewell corroborated Lorton's testimony but testified that the incident occurred on (Friday) August 20 and ad- mitted that he did not use binoculars in identifying Lamb from a distance of about 150 feet. Lamb denied throwing glass in any of the driveways and testified that, contrary to Jewell's recollection, she was not on the picket line on August 20. Similarly, John- son denied throwing glass or nails in the driveways and she was corroborated by employee Ruby Alsip in testi- mony showing that she picketed only on Mondays and Wednesdays from 2 to 6 p.m. Johnson denied throwing glass or nails in the driveways and Alsip corroborated her on this and on Johnson's further testimony that John- son was barefooted when she picketed. Sergeant Frame testified that he saw Johnson, on August 25, break a bottle on the east drive about one- third of the way up from Rich Road. Frame said he used binoculars in identifying Johnson. The General Counsel notes that Lorton identified Johnson from a distance of 450 feet and that Frame, unlike Lorton, saw the bottle in Johnson's hands where Lorton testified that she did not. Such testimony is not inconsistent. I credit Lorton's testimony, her identification in par- ticular, and find that it was substantially corroborated, in relevant part, by both Jewell and Frame. I have found Jewell and Frame to be reliable. I do not credit the con- trary testimony of Lamb, Alsip, and Johnson. I was im- pressed by the particularity and straightforwardness of Lorton's testimony and find that because it was corrobo- rated by Jewell and Frame, I was persuaded of the ve- racity of these witnesses . I was not impressed by the de- nials by Alsip, Lamb, and Johnson. I find that Respond- ent held honest beliefs that, on August 25, Johnson and Lamb engaged in misconduct serious enough to merit discharge and that the General Counsel failed to prove that they did not engage in such misconduct. I therefore recommend to the Board that the com- plaint, insofar as it alleges the unlawful terminations of Lamb and Johnson, be dismissed. 13. Johnny Jones By its August 2, 1982 letter, Respondent notified Jones that he was terminated as of August 2 because he had been observed on July 28 , 1982, at the main entrance throwing glass and roofing nails onto the drive which re- sulted in damage to tires of vehicles entering the proper- ty. Respondent's guards, Brown and Estelle, testified that while they were on the roof of the main plant about 2 a.m. on July 28 , they saw a group of pickets near the main entrance drinking from colored bottles . They rec- ognized Jones. Brown testified that the group consisted of three persons ; Estelle said it was five. Brown testified that three of the pickets, including Jones, threw empty bottles onto the main drive and two of them, including Jones, then walked up into the drive and smashed the bottles which had not broken when thrown . Estelle testi- fied that, as above noted, of the five pickets who threw bottles, three of them, including Jones, came into the drive to smash the unbroken bottles. Jones denied ever having broken bottles at any time or place. There was no proof that this discharge occurred for the scattering of nails as alleged. Furthermore, Estelle and Brown, as the General Counsel observes, read each other's reports con- cerning this incident prior to testifying. Although Jones was an untruthful witness in collateral matters relating to his having been drinking on other oc- casions (Tr. 4790, et seq.), Respondent's witnesses, per- haps confused by reading each other's incident reports, made inconsistent statements regarding the number of pickets involved in throwing bottles and the number thereafter smashing unbroken bottles. Neither the Estelle nor the Brown incident reports, apparently made at the time of the incidents on July 28 , was offered into evi- dence. On balance, I conclude that the mutually inconsistent testimony of Brown and Estelle was not reliable and, in particular, that they recognized Jones as one of the par- ticipating pickets on July 28 throwing and breaking bot- tles in the main driveway. On this basis, I find that Re- spondent failed to prove an "honest belief" notwithstand- ing that I was not impressed by Jones' argumentativeness and his hesitant admissions when confronted with prior inconsistent statements. Jones' admitted the May 13 misconduct regarding interfering with Police Captain Farmer which was a police matter and, in any case , was not mentioned in the subsequent discharge letter and was not so serious as to merit discharge. Indeed, Respondent's raising the matter at the hearing demonstrates an element of malice. However, I conclude that on September 11, Jones was arrested by police officers Crane and Wolski for break- ing glass in the main drive. Wolski adequately identified Jones. Respondent had the requisite "honest belief." I credit Wolski's and Crane's identification and testimony over Jones' denials. Though this misconduct was postdis- PRC RECORDING CO. charge, it merits supporting Respondent in not reinstat- ing him, notwithstanding his backpay as an unlawfully unreinstated striker runs to September 11. O. R. Cooper & Son, 220 NLRB 287 fn. 1 (1975). 14. Pam Mayberry In its July 12, 1982 letter to Mayberry, Respondent as- serts that she was discharged for conduct on July 2, 1982, involving "throwing nails under a car's tires which resulted in damage to the tires." Industrial Relations Director Jewell testified that about 9:30 a.m. on July 2, while he was entering the driveway of Respondent's main entrance, Pam Mayberry walked up to within 5 feet of the passenger's side of his car, ex- tended her hand toward him, and held out a nail for him to see. Jewell had previously observed no nails or glass in the driveway. As he was proceeding forward, he saw Mayberry stoop from the waist and, with an underhand motion, toss a nail under his rear right tire. Jewell drove about 125 feet up the driveway into his parking space and, on inspection of his right rear tire, removed a nail from the tire which he attached to the incident report he wrote up at once. He recalled that Mayberry was wear- ing a pink blouse. Mayberry denied throwing the nail under his tire and, in substance, testified that because the last day she pick- eted or appeared at the picket line was July 1, she could not have performed the alleged act on July 2, as dated by Jewell. She also testified she was never on the picket line on Fridays and July 2, 1982, fell on a Friday. She further testified that she does not have a pink blouse and that she did not believe that she had a blouse which could be associated with the color pink. On the other hand, she testified, contrary to her pretrial NLRB affida- vit, that she last picketed on July 1 whereas her pretrial statement asserted that she had not been on the picket line for about 1 week prior to July 2, 1982. At the hear- ing, her testimony showed quite clearly that she had a firm recollection of being on the picket line at least on July 1, which is necessarily 1 day before the alleged inci- dent and clearly within the period of a week prior to the incident. Unlike several other discharges, the General Counsel does not assert that Pam Mayberry occupied any union position or was the subject of any unlawful attention by Respondent's supervisors in identifying her. The General Counsel's principal defense is that it is unconceivable that a picketer bent on damaging a tire would flaunt the offending nail to the intended victim. I tend to agree. On the other hand, there was no suggestion advanced by the General Counsel as to why Jewell would particularly identify Pam Mayberry, whom he knew from his ordi- nary work at the plant, as the perpetrator of this act. In view of the choice of resolutions and credibility, and being impressed by Jewell as one of the more apparently accurate of Respondent's witnesses, and in view of the inconsistencies in Mayberry's testimony when compared to her affidavit, I credit Jewell and conclude that Jewell's testimony establishes an "honest belief' in the occurrence of the event on July 2 and that the General Counsel did not prove, by a preponderance of the evi- dence, that the event did not occur on that date or that 661 the event was relatively insignificant in view of the fact that no proven lasting damage occurred to the tire or to Jewell. The General Counsel did not urge this latter ar- gument but I am tempted on the basis of Newport News Shipbuilding, 265 NLRB 716 (1982) (Brad N. Harrison incident), to conclude that the matter was so minor as to not warrant the conclusion that the discharge was lawful. On the other hand, Newport News, supra, in- volved the placing of a single nail in the driveway which was retrieved prior to apparently entering or damaging anyone or anything, and there was no malice in the act. The Board, agreeing with the administrative law judge, found contrary to the employer's alleged honest belief that, ultimately, the misconduct was not so serious as to warrant a discharge. Here, however, the nail entered the tire and Mayberry was flaunting the nail in Jewell's face. The intensity of her desire to injure Jewell via the tire was manifested by her showing him the nail that she was about to throw. This premeditation, hardly to be called a reaction to picket line tensions or an act of animal spirits, in my judgment, effectively distinguishes this incident from that in Newport News and renders Mayberry's action sufficient to base a lawful discharge thereon. I therefore recommend to the Board that the Mayberry discharge, alleged to be a violation of Section 8(a)(1) and (3) of the Act be dismissed. 15. Keith McDivitt On Saturday, June 12, 1982, a large rally of labor or- ganization members, including union supporters, took place in Richmond, Indiana. Included among those ap- pearing in downtown Richmond were members of labor organizations on strike against employers other than Re- spondent. Sometime in the midafternoon, as many as 400 of these persons converged on the roads adjacent to Re- spondent's plant at Rich Road. There, about 4 p.m., on the southwest portion of Respondent's property, near the junction of Flately Road and Rich Road, Respondent's hired, armed guards (in an automobile owned or con- trolled by this guard service) were observing the crowd at that junction. There is no suggestion that the guards in the car were behaving in any provocative manner. Nev- ertheless, about this time, persons in the crowd com- menced stoning the car, which, again, was on Respond- ent's property. The occupants of that automobile radioed for aid and two guards, Beyer and Ron Jones, drove from the plant guard post to the car under attack in a pickup truck belonging to Beyer. At this point, an un- identified automobile came onto Respondent's property and apparently purposely collided head-on into Beyer's pickup truck. The car then backed up and, when Beyer and Jones came out of the pickup truck, standing togeth- er with their drawn weapons (shotguns and pistols), again drove straight toward them. Beyer and Jones dis- charged their weapons into the radiator and front of the oncoming automobile in an effort to stop it. After the firing, it retreated and sped off. With the arrival of police who ordered Jones and Beyer off the premises, the crowd attacked the pickup truck. Beyer's testimony (Tr. 2639) is uncontradicted that Bucella repeatedly urged the mob to burn the truck. Among those six or 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eight persons attacking the pickup truck and trying to push it over was Keith McDivitt , identified by Beyer, Jones, and Vern Taylor, Respondent's own chief of secu- rity. Jones identified McDivitt from a distance of about 15 feet (Tr. 2847); Taylor was 400-500 feet away on the roof of the plant where he took pictures of the incident. Jones and Beyer identified McDivitt not only in their testimony but from the photographs. Jones testified that 1 week after the strike commenced (May 13), on May 20, when Respondent was interview- ing replacement employees for the first time, between 1 and 2 p.m., at the picket line, McDivitt was attempting to block applicants for entering the plant and, according to Jones, was trying to shove Jones around . It is uncon- tradicted that McDivitt told Jones that if he did not get away from the picket line, McDivitt was going to "thump [his] head" (Tr. 2843). Jones did not know who McDivitt was and asked Vern Taylor, who identified him. Further, Jones testified, and McDivitt denied, that McDivitt told Jones, while McDivitt was patrolling at the corner of Flatley and Rich Roads, near the PRC plant that Jones was "cold meat" ; "a short timer"; and that "this was [his] last day." Thus it is clear that McDi- vitt was fully identified by Jones, and that Beyer and Taylor knew him as well. There was no dispute that McDivitt has unmistakable physical proportions: over 6 feet tall and over 250 pounds. The General Counsel adduced impeaching testimony from a witness (Harrington) who was identified as being present but denied his presence and a witness (Tyra) who testified that McDivitt did not participate in turning over or burning the truck. Tayler testified that the truck was turned on its roof by people different than those who turned it on its side whereas Jones testified that the same persons turned it on its roof who turned it on its side and that McDivitt was among those doing so. I reject Harrington's and Tyra's testimony and see no reason on this record to dispute Jones', Taylor's, and Beyers' identification of McDivitt as one of the group of 8 to 12 persons who either pushed the truck over and burned it or merely participated in turning the truck over. I was particularly unimpressed by McDivitt's testimony concerning his presence and par- ticipation in the rally and as an observer to the burning of the truck. The only possible reason for crediting McDivitt's denial of his presence in turning over and burning the truck was that Jones , having been the sub- ject of McDivitt's attention on the picket line, was unjus- tifiably retaliating against him. If that were so, I would still have to deal with Beyer's and Taylor's independent identification of him which I have, in any event, cred- ited. Thus, I do not believe that the deviations in testi- mony among the three witnesses, Taylor, Breyer, and Jones, who identified McDivitt as a participant in this act of turning over or burning the truck amounted to anything more than the normal deviation among wit- nesses to an event. In addition, I am not at all certain that McDivitt's lack of recollection concerning so many of the events which occurred that day, if not purposeful, might not have been due to the consumption of alcohol (Tr. 4040-4041). I conclude that Respondent had the req- uisite honest belief and that the General Counsel failed to prove that McDivitt's actions did not occur, were trivial or were provoked. Perhaps special attention might be given to the Gener- al Counsel's secondary argument: However, even if McDivitt had helped to overturn the truck, that isolated, impulsive incident in a group of eight persons, in a situation which was provoked by the guards' use and display of their weapons, would hardly justify the discharge of a 15-year employee. I have found that, on this record, the guards' use and display of their weapons was designed only to protect themselves from the oncoming car which , on this record, was being driven to injure them . Beyer's and Jones' pres- ence in Beyer's pickup truck can be explained only by their going to the aid of the guards' automobile which, without apparent provocation, was being stoned at that time by persons at the corner of Flately Road and Rich Road. On this record, the mere presence of the guards' automobile, albeit on Respondent's own property, in- duced the gratuitous stoning. I cannot see how the guard's subsequent defensive use and display of their weapons provoked the overturning or burning of the truck. Rather, as the record shows, it was Bucella who urged the burning of the truck. This is not , therefore, a case where peacefully picketing employees were pro- voked by a gratuitous display or use of firearms. Cf. Davis Coal Co., 266 NLRB 1072 (1983). I recommend to the Board that the complaint, insofar as it alleges the unlawful termination of McDivitt, be dis- missed. 16. Sylvia Parker By its letter of July 12, Respondent terminated Sylvia Parker for conduct allegedly occurring on July 9 when she was observed : "Throwing an object which broke a windshield." Replacement employee Randy Smith testified that on July 9, at 6:10 a.m., while he was driving to work, he observed 6 to 10 women standing in a group , none of whom could he identify. One of the group, a blonde lady, lobbed a rock which broke his windshield. He drove to the plant and reported the occurrence. Employ- ee Joe Trunck, driving behind Smith's car, saw the woman throw the rock. When Trunck was describing the woman to a policeman at the plant, an unknown man passed behind him and said the woman's name was Sylvia Parker. Trunck described Parker as middle-aged, blonde, and of medium height. Both he and Smith identi- fied Parker from a photograph. The photograph from which Trunck and Smith made the identification was not entirely clear and the identification was made on hair color, body build, and similar indistinct elements. With regard to this July 9 incident , Parker denied being at the picket line at 6:10 a .m. and asserted that she drove by the picket line between 8:30 and 9 a.m. on July 9, en route to Indianapolis, and stopped there for 5 min- utes at that time only to check with some of her col- leagues. She testified that she then went to Indianapolis and did not return that day . Counsel for the Charging h PRC RECORDING CO. Party elicited from Parker testimony that Parker could not have been at the picket line at 6:10 a .m. on July 9 because her granddaughter had returned on leave from the Army on July 4, needed money, and the grand- daughter enlisted Parker to take her on July 9 to Fort Harrison in Indianapolis to get Army pay. Army records, however, show that Parker's granddaughter did not leave her base in California until July 12 and show that the granddaughter was paid on Wednesday, July 14. In view of this record, I discount Parker's further testi- mony that she drove to Fort Harrison on July 9 with her granddaughter but because her granddaughter , in fact, was not paid on that day, had to return the following week. She also testified at length that she discovered that her affidavit to the National Labor Relations Board was incorrect; but in subsequent conversations with NLRB agents, never requested them to amend her incorrect statement to show that she was not on the picket line on July 9. It is significant that Parker testified that on July 9 she visited the picket line for 5 minutes about 8:30 to 9 a.m. to speak with "some of the girls" on the picket line. Be- cause her memory in many respects was good concern- ing dates, it would seem that , if she spoke to persons on the picket line, there would be little difficulty in having any one or more of the "girls" testify, perhaps corrobo- rating her testimony of the brief stop or that her grand- daughter was in the car on the morning that she stopped by on July 9, en route to Fort Harrison in Indianapolis. No corroborating testimony was elicited concerning the brief stop on the picket line, the persons she met, or whether her granddaughter was in the car. It is also not unreasonable that Parker, having the mo- bility of a car, was at the picket line both at 6:10 a.m. and thereafter also at 9 a .m. when she allegedly drove to Indianapolis with her granddaughter. Thus, her driving to Indianapolis on July 9 at 9 a.m. with her granddaugh- ter is in no way incompatible with her having been on the picket line 3 hours earlier when she was identified as having lobbed the rock at Smith 's windshield. On this record, I conclude only that Respondent had "an honest belief" that Parker engaged in the alleged misconduct at 6:10 a.m. on July 9, and that the General Counsel failed to prove by a preponderance of the credi- ble evidence that she did not do so . I therefore recom- mend that the complaint, insofar as it alleges the unlaw- ful discharge of Sylvia Parker , be dismissed. I need not, with this disposition, reach or analyze the other alleged acts of misconduct which occurred after the July 12 dis- charge. It suffices to say that Parker admitted smashing bottles in the east drive on more than one occasion (Tr. 4352). 17. Bill Phillips In its July 12, 1982 letter to Phillips, Respondent stated that it discharged him on that day because on May 13, 1982, he followed an air-freight truck which had been on Respondent's property and attempted to run it off of an interstate highway and because on June 8 he kicked the side of a pickup truck resulting in damage to that vehicle. 663 About 3: 15 p.m., on May 13 , the first day of the strike, Respondent's guards Jessup and Beyer were escorting an air-freight truck from Respondent's premises to Interstate Highway 70. The guard's escort vehicle was a black Plymouth van . When their air-freight truck left Respond- ent's loading dock area and reached the intersection of Rich Road from the west entrance , with the black Plym- outh van behind the air-freight truck, and both vehicles stopping before emerging onto Rich Road, a brown pickup truck, driven by Bill Phillips, pulled in front of the truck and blocked its egress. Phillips got out of the truck, came to the side of the air-freight truck, and swung his right arm at the driver apparently trying to strike him. Other persons, apparently striking employees, grabbed Phillips and restrained him. He escaped their grip and approached the guard van yelling obscenities. The guard truck backed up while several of the striking employees restrained him. He returned to his truck and drove off down Flatley Road. The air-freight truck then proceeded onto Rich Road with Beyer and Jessup fol- lowing in the van. As it approached the interstate high- way, Jessup and Beyers both saw Phillips' brown pickup truck parked on the side of the interstate road. The air- freight truck and the van passed Phillips and started up onto the interstate ramp . As they entered the interstate roadway itself, Phillips passed both the air-freight truck and the van, positioned himself ahead of the interstate truck, and then proceeded to apply the brakes and zigzag in front of the air-freight truck. At one point, Phillips, having left the air-freight truck, cut sharply in front of the security van forcing Beyer to slam on his brakes and swerve into the median in order to avoid crashing into Phillips' truck in front. In several further actions, Phillips attempted to run the air-freight truck and the van off the road by braking in front of them, zigzagging, and apply- ing the brakes. Phillips denied ever trying to run a vehicle off the road and denied ever engaging in any of the conduct found above. He testified (Tr. 4855, 4865) that he and others spent the day painting picket signs and delivering them to the plant. No person corroborated this testimony and it is unknown who the "we" was who were painting the signs with Phillips. I do not credit his testimony. In avoiding this discredited denial, the General Coun- sel makes a further observation (Br. 77) that because there was no physical contact between the drivers and their trucks, no words exchanged, and no threatening gestures made, the incident presented no threat of a mag- nitude sufficient to warrant discharge. The General Counsel cites Federal Prescription Service, 203 NLRB 975, 993 (1973); and Moore Business Forms, 224 NLRB 393, 401-402 (1976). I find these cases factually distinguish- able, but to the extent that remarks made in Moore Busi- ness Forms might be held inconsistent with the results herein, I nevertheless find that this game of "chicken" whereby a vehicle, at highway speeds, repeatedly cuts off other automobiles and slams on its brakes forcing the following vehicles to swerve is fraught with such haz- ards not only to the vehicles involved therein but to other innocent vehicles on the highway, that it may not be condoned. This is no act of animal exuberance and it 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no trivial act of misconduct , Coronet Casuals, 207 NLRB 304 (1973). It is unnecessary to reach the issue of Phillips kicking the door panels of the pickup trucks. I conclude from the above that this conduct was suffi- ciently serious as to support Respondent 's "honest belief that Phillips had engaged in substantial misconduct and that the General Counsel has failed to prove , by a pre- ponderance of the evidence, that Phillips did not engage in it. In passing, Respondent did not suggest that it fired Phillips because he attempted to punch the driver of the air-freight truck. He could not get at him because the truck was 7 feet off the ground . He thereafter got at him, perhaps to injure him seriously , for crossing the picket line, by forcing his car off the highway . I do not reach the question of whether Respondent would have been justified in discharging Phillips for Phillips' attempting to punch the air-freight driver. The complaint should be dismissed as to Bill Phillips. 18. Martha Sweet Martha Sweet was discharged by letter of July 13 for the June 4 breaking of the antenna off a car and assault- ing the car with her purse, resulting in a cracked wind- shield. Respondent employee Nancy Wagner testified that on June 4, about 3 : 15 to 3 :30 p.m., she waited outside the plant for her mother and her 10-year old daughter to pick her up in a car . When picked up, Wagner sat in the front passenger seat, her mother drove, and her daughter sat in the back seat. They left from the main entrance drive and when they reached Rich Road, they turned west but it was heavily congested by traffic in both di- rections and they soon stopped . People alongside Rich Road on both sides were yelling to the people in the cars who were replacement employees . A woman in a cowboy hat came up to Wagner's passenger side and pulled at the antenna and stuck her hand through the open vent window. She then started kicking the door. As traffic moved slowly, a woman got out of a car heading east and hit the windshield of Wagner's car with a bat so that it shattered. She also hit the driver's window and it shattered. She returned to her car. The person wielding the bat was never identified. At the time that the woman was wielding the bat, the woman in the cowboy hat was slamming her purse against the passenger window. The damage resulting on that side of the car was broken radio antenna. Respondent's chief of security Vern Tayler testified that he knew Martha Sweet for more than 10 years by virtue of their work association . Martha Sweet worked for Respondent for 20 years. Tayler took colored pic- tures of various persons on the picket line (R. Exhs. 106- a, b, and c) on May 27. Those pictures show a woman in a red and white shirt with a sweater and a white cowboy-type hat. Tayler had no trouble in identifying persons in the picture, including police officers. He iden- tified the person in the cowboy hat as Martha Sweet. Wagner identified the person who was hitting at the windows on the passenger side and pulling on the anten- na as a person wearing a cowboy hat (Tr. 3547). Sweet denied ever owning or wearing a cowboy hat . Tayler testified that he saw Martha Sweet beating on the wind- shield with her purse (Tr. 3512) and, in describing this incident, he described Martha Sweet as wearing a hat with a large brim, having a light straw appearance (Tr. 3513), and that her purse was of the same color (Tr. 3512). Sweet testified she had neither such a hat nor such a purse. On the basis of Tayler's long association with Sweet and his identification of the May 27 photrograph in which he had no trouble identifying the wearer of the red and white shirt and the straw-type cowboy hat as being Martha Sweet, I credit him and discredit Sweet. I therefore find that Sweet participated in striking at Wag- ner's car on June 4. In reaching this credibility resolu- tion, I am also mindful of Sweet's testimony that she saw persons wielding baseball bats on the picket line but rec- ognized none of them, certainly none of them as striking employees . I was dissatisfied with this testimony from Sweet as I was with similar testimony from other of the General Counsel's witnesses. The General Counsel contends , however, that at worst Sweet merely broke an antenna and hit the side of the car with her bag and kicked it, all of which are minor acts of attack . In citing WENO, 182 NLRB 866 (1970), and Alcan Aluminum Corp ., 214 NLRB 236 (1974), the General Counsel argues that this is not the type of seri- ous misconduct which would warrant discharge. Re- spondent cites Alcan, supra, for the proposition that Sweet should be denied reinstatement because she did not disassociate herself from the misconduct of the person wielding the bat which broke the windshield and in fact continued to beat on the car's windshield at the same time. While I agree that Sweet was not directly re- sponsible for smashing the windshield of the Wagner car, which was the responsibility of this unknown person, she participated in the same assault , with lesser weapons and with lesser damage resulting . I conclude that Sweet used the opportunity of the greater assault to participate to a lesser extent, and identified her action with the greater assault. Coronet Casuals, Inc., 207 NLRB 304, 305 (1973); Moore Business Forms, 224 NLRB 393, 385 (1976). 1 therefore find that her conduct is not the same as a mere isolated breaking off of a side mirror as in Alcan. Rather, Sweet was engaged, as part of a joint assault, in trying to injure Wagner and the occupants of the car. Her attempt to put her hand through the side window to get at Wagner in the passenger seat leaves little to the imagina- tion. I recommend to the Board that the complaint, inso- far as Martha Sweet is concerned, be dismissed. Re- spondent proved an "honest belief" of Sweet jointly en- gaging in substantial misconduct . The General Counsel failed to prove, in turn, that Sweet's activity, under the circumstances, was insufficiently grave so as to render the discharge unlawful. 19. Joyce Tipton Joyce Tipton was discharged by Respondent's letter of July 12 for having engaged on June 4 and July 9 in al- legedly throwing rocks which damaged cars . Although there were several allegations of Tipton's misconduct in the period June through August 1982 , it is sufficient for purposes of this decision to relate only one. PRC RECORDING CO. Plant Manager George Douglas testified that on July 9, after his vehicle was struck by a bottle of paint alleg- edly thrown by Michael Boatman, supra, he U-turned his car around and headed back to the plant. When he ap- proached the point where the paint had been thrown, Douglas testified that Tipton stepped from a crowd of pickets and threw a rock which, although he did not see the actual contact, hit the back of his car causing a dent. He heard the loud noise (Tr. 3775, et seq.). Tipton denied throwing any object at Douglas' car from the picket line and was corroborated by Phyllis Tyra who was with her when Douglas drove by. Ac- cording to Tyra, there were 20 to 30 people in the group when Tipton allegedly threw the rock. Tipton testified that during the course of the strike she, at various times, pretended to throw objects at vehicles thus, according to the Charging Party's brief (Br. 133), creating the possi- bility of mistaken identity. I do not find Douglas' testi- mony to be mistaken. On the basis of this testimony wherein Tipton admitted feigning throwing rocks, and Douglas testified she threw a rock, I credit Douglas and conclude that Respondent proved an honest belief that Tipton threw the rock, on July 9, at Douglas' car. I do not credit Tipton's denial and Tyra's corroboration. Tyra, infra, was overenthusias- tic in her union support, and I do not credit her corrobo- ration. The General Counsel, in her turn, failed to prove by a preponderance of the credible evidence that Tipton did not throw the rock. Accordingly I recommend to the Board that it dismiss the complaint insofar as the unlawful discharge of Joyce Tipton is concerned. On this state of the record, I need not and do not consider other allegations of wrongdoing by Joyce Tipton as alleged in the complaint. 20. Phyllis Tyra By its letter of July 12, 1982 (G.C. Exh. 42-s), Re- spondent terminated the employment of Phyllis Tyra for allegedly throwing a rock which struck a car and caused damage to the vehicle on July 9. Vern Tayler testified that on July 9, while driving to work on Rich Road, he passed a group of 20 to 30 pick- ets east of the east entrance to the plant. This is the same group from where Joyce Tipton, supra, stoned Douglas' car on the same day. One of the group, Tyra, according to Tayler, threw an object the size of a golf ball which hit and scratched his hood. About this time, Tayler was driving between 15 to 20 miles per hour. Tyra, a union strike coordinator, testified that as Tayler drove past the group of strikers, she saw his car struck by an object. This occurred 10 feet from where Tyra was standing . She admits she then raised her arm and said, "all right." She denies having thrown anything at Tayler's car. In support of Tyra's testimony, there were three corroborative witnesses : Corena Gomez, Phillip Hilling, and Richard Lathrop. All three testified that Tyra threw nothing at Taylor' s car notwithstanding that she raised her arm and said "all right" as it passed. I do not credit Tyra and I do not credit her corroborative witnesses . I regard Tyra's testimony as motivated solely to support the Union regardless of the facts . She was re- sponsible in large part for the picket line and was the 665 most prominent union supporter at the hearing. I have already discredited her corroboration of Joyce Tipton, above. On the contrary, I credit Tayler that he saw Tyra throw the object at his car which hit it and caused it damage. I need not and do not pass on the question of whether, even if Tyra, a strike coordinator, did not throw the object, her enthusiastic and unequivocal ap- proval and acquiescence in this dangerous act would be sufficient to support Respondent's position that she should no longer be employed by Respondent and that her termination was justified . Coronet Casuals, supra. I therefore conclude that Respondent, on the basis of Tayler's credited testimony, proved an "honest belief that Tyra engaged in misconduct serious enough to justi- fy her being terminated therefor. In his turn, the General Counsel failed to prove by a preponderance of the evi- dence that Tyra did not, in fact, engage in the activity for which she was discharged. I therefore recommend to the Board that the com- plaint, insofar as it alleges the unlawful termination of Phyllis Tyra, be dismissed. 21. J. R. Whitehead By its letter of July 13 , 1982, Respondent terminated the employment of J. R. Whitehead because he allegedly threw a rock that struck a car resulting in damage to the car at 4:35 p.m. on June 9, 1982 (G.C. Exh. 42-t). Jewell testified that about 4:30 p .m. on June 10, while he was in a convoy of cars exiting the parking area through the east entrance (with some 75- 100 strikers on Rich Road between the main entrance and the east prop- erty line), there were about 40 to 50 vehicles on the road. Jewell testified that Whitehead , at the east en- trance, was holding what Jewell believed to be a rock which he feigned throwing at Jewell as Jewell drove past him . Jewell testified that he looked in his outside rear view mirror and saw Whitehead throw an object at the car directly behind Jewell's, the automobile of George Preston. Jewell said that he saw nothing hit Preston's car and it was only through the mirror that he saw Whitehead throw the object in an overhand motion. The convoy of cars was traveling at 25 miles per hour at the time. Preston testified that on June 10, about 4:10 p.m., while he was traveling in a convoy which had left the plant, he saw Whitehead throw a rock in a side arm or underhand motion and then heard a noise on his car. Seven or eight other employees were standing with Whitehead when Whitehead allegedly threw the rock. Whitehead denied throwing the rock and he is cor- roborated in this by the testimony of his wife. that at no time Whitehead threw a rock while on the picket line. The General Counsel points to the fact that both Preston and Jewell testified that the act occurred on June 10 rather than, as in the discharge letter , on June 9; and that Jewell testified that Whitehead threw the object under- handed. The General Counsel asserts that it was pursuant to leading questions that Jewell and Preston picked the date of June 10. The failure to get the date correct pursuant to Re- spondent counsel's erroneous leading question does not 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seriously detract from the credibility of Preston and Jewell. Plumbers Local 195 (Stone & Webster), 240 NLRB 504, 514 (1979), enfd. summarily 606 F.2d 320 (5th Cir. 1979). The discrepancy in their observations concerning the style of Whitehead's throwing the rock (overhand verses side arm or underhanded ) is a more serious matter. I nevertheless credit Jewell's and Preston's testi- mony over Whitehead's denial, even as corroborated by Whitehead's wife. As the General Counsel concedes, the assertions by the Whiteheads and those of other terminated employees and other General Counsel witnesses that they did not see who threw nails or rocks and they did not even see nails or glass in the driveways, are "less than fully plausi- ble (though not totally improbable)" (G.C. Br. 86). The General Counsel argues, however, that such testimony, with such acknowledged discrepancies and improbabil- ities, is nevertheless insufficient to warrant discrediting otherwise credible denials of personal wrongdoing. That may be so in a case involving one or two instances whereby persons, for convincing, or at least sensible, rea- sons fail to observe what is apparently a widespread physical condition. In the instant case, none of the termi- nated employees ever saw a rock being thrown by an identified person and seldom saw any injury to persons or things. At best, the perpetrators of rock throwing were always unidentified persons not associated directly with the strike and were not employees of Respondent. When this testimony occurs 30 or 40 times, as it did in this hearing, it naturally affects the finder of fact ad- versely. In addition, I found Jewell, in particular, a wit- ness of substantial restraint in describing events and a witness who, as the General Counsel notes, did not expand on his testimony in this incident by suggesting that he saw the rock strike Preston's car. In any event, and notwithstanding the discrepancy between Jewell's and Preston's testimony, I credit Jewell and Preston and find Respondent had an honest belief that Whitehead threw the rock at Preston's car and, despite Whitehead's and his wife's denials, I conclude that the General Coun- sel failed to prove, by preponderance of the credible evi- dence, that Whitehead did not throw the rock. CONCLUSIONS OF LAW 1. Respondent Richmond Recording Corporation d/b/a PRC Recording Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local Union 2043, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute units appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: (a) All production and maintenance employees at all Respondent's Richmond, Indiana plants; BUT EXCLUDING all watchmen, Printing Department employees, office clerical employees, all guards, professional employees, all employees included in that unit of employees decribed herein below in sub-paragraph (b), and all supervisors defined in the Act. (b) All Tape Division Production and Mainte- nance employees working at all of the Respondent's Richmond, Indiana, plants; BUT EXCLUDING all office clerical employees, guards, professional em- ployees, all employees included in the unit of em- ployees described above in sub-paragraph (a) above, and all supervisors as defined in the Act. 4. Since at least about May 1, 1979, the above-named labor organization has been the designated exclusive rep- resentative of the employees in the above-named appro- priate units described in paragraph 3, herein, for the pur- pose of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. Respondent and the Union, at all times, maintained and enforced separate, 3-year written collective-bargain- ing agreements relating to wages, hours, and other terms and conditions of employment including job classifica- tions, covering employees in the units specified in para- graphs 3(a) and (b), above, which agreements expired, respectively, on April 30 and May 1, 1982. 6. On expiration of the collective-bargaining agree- ments described in paragraph 5, above, and during col- lective bargaining with the Union, Respondent on May 5 and 6, 1982, by unilaterally combining, changing, and im- plementing the job classifications and duties of its em- ployees in the units described above in paragraphs 3(a) and (b), in the absence of the Union's refusal to bargain, a bargaining impasse or the Union's consent, thereby uni- laterally changed the terms and conditions of employ- ment established by the collective-bargaining agreements of employees in the units specified above, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By unilaterally changing and implementing wages, hours, and other terms and conditions of employment, on May 11, 1982, in the absence of the Union's refusal to bargain, a good-faith bargaining impasse or the Union's consent, inconsistent with the wages, hours, and other terms and conditions of employment established by the expired collective-bargaining agreements described above in paragraph 5, thereby, inter alia, changing existing va- cation plans, insurance benefits, wage rates, leave plans, and thereby, inter alia, eliminating pension benefits and cost-of-living wage adjustments, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Commencing May 13, 1982, Respondent's employ- ees in the units described in paragraph 3 commenced an unfair labor practice strike induced by Respondent's un- lawful conduct described in paragraphs 6 and 7. 9. By threatening its employees, about April 30, 1982, to withdraw a contract proposal and substitute a less de- sirable one if the proposal was rejected by the Union and the employees went on strike, Respondent violated Sec- tion 8(a)(1) of the Act. 10. By discharging, commencing July 12, 1982, striking employees Pauline Smith, Roger Block, Glenna Phillips, Marlene Anderson, Sarah Drook, Catherine Hatfield, Bertha Hedricks, Sherry Ritchie, Pamela Rogers, Eliza- PRC RECORDING CO. beth Willoughby, Sophie Van Winkle, and Florence Watson, without an honest belief that they engaged in disqualifying misconduct, or where, in fact, they did not engage in disqualifying misconduct , Respondent violated Section 8(a)(1) of the Act. 11. By refusing, commencing on June 29, 1982, to im- mediately reinstate unfair labor practice strikers to their old jobs on their unconditional application to return to work, discharging, if necessary, any replacements, Re- spondent violated Section 8(a)(1) and (3) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent, commencing May 5, 6, and 11, 1982, violated Section 8(a)(5) and (1) of the Act by unlawfully implementing its contract offers in the ab- sence of union consent or a bona fide impasse on those dates. I have also found that it thereby ceased observing the terms of the expired collective-bargaining agreements covering, respectively, the records and tapes division units, the continued observance of which during bargain- ing, Respondent was obliged to maintain pending union refusal to bargain, impasse, new agreement, or a union waiver or consent. NLRB v. Antonio's Restaurant, 648 F.2d 1206, 1214 (9th Cir. 1981); Hen House Market No. 3 v. NLRB, 428 F.2d 133, 137 (8th Cir. 1970); NLRB v. Cauthorne Trucking, 691 F.2d 1023 (D.C. Cir. 1982). In- stead of maintaining and observing the status quo estab- lished in the expired collective-bargaining agreements (wages, rates of pay, hours, and other terms and condi- tions of employment including pension plans, COLA, health insurance plans, etc.), Respondent, by implement- ing on May 5-6 and It, unilaterally set in motion unlaw- ful new terms and conditions of employment for both the strikers and replacement employees. F.M.L. Supply, Inc., 258 NLRB 604 (1981); S. Freedman Electric, 256 NLRB 432 (1981) In order to dissipate the effects of those unfair labor practices, it is necessary, under the Board rule, to order restoration of the contractual status quo ante to the extent feasible in the absence of evidence showing that to do so would impose an unfair burden on Respondent. Hood Industries, 248 NLRB 597 fn. 3 (1980). To hold that mere bargaining43 in such circumstances is an adequate substitute for wider remedial action would unwarrantedly relieve Respondent of its statutory obliga- tion to maintain existing benefits during negotiations and unjustifiably ignore the rights of employees who may have been adversely affected by the Respondent's breach of that duty. The record herein is silent on the question 43 I shall recommend a general bargaining order remedy notwithstand- ing the General Counsel's refusal to allege any bargaining violation other than unilateral acts because Respondent's actual implementations related to all aspects of wages , hours, and other terms and conditions of employ- ment Thus, a mere cease-and-desist order would be inadequate Allied Products Corp, 2l8 NLRB 1246 (1975) 667 of whether restoring the status quo ante would impose an unfair burden on Respondent. Under the Board's es- tablished policy in 8(a)(5) violations relating to unlawful unilateral acts, I am therefore obliged to order restora- tion thereof, except union-security, arbitration, and checkoff provisions, S. Freedman Electric, supra at 443, and to permit proof of the existence of an "unfair burden" on Respondent in supplementary compliance proceedings if that should be Respondent's desire. Cf. Allied Products Corp., 218 NLRB 1246 (1975), and S. Freedman Electric, supra, 256 NLRB 432 fn. 1. The fact that the Union tentatively agreed to job combinations, reduced wages, and other terms and conditions of em- ployment albeit in the face of an unlawfully imposed fait accompli may be urged at that time. While nothing in this remedy shall be construed to force or require Respondent to alter or abandon any ben- efit heretofore granted to any employee, this shall not affect the Union's right to bargain and to demand revo- cation or changes of any unlawfully implemented change on which Respondent is obliged to bargain. Kal-Equip Co., 237 NLRB 1234 (1978). Having found that Respondent, in violation of Section 8(a)(1) of the Act, has unlawfully discharged certain of its striking employees for activities associated with the strike and picket line and has not made out its defense of an honest belief in their engaging in such misconduct as to disqualify them for further employment; and having further found that it violated Section 8(a)(3) and (1) of the Act when, on and after June 29, it unlawfully refused to reinstate its striking employees, who were engaged in an unfair labor practice strike, offering only to reemploy them when work became available. and even then only pursuant to terms and conditions of employment unlaw- fully imposed, I shall recommend to the Board that Re- spondent be ordered to offer immediate reinstatement to all these unfair labor practice strikers and the employees unlawfully discharged because of picket line activities (including the nine employees whose discharges Re- spondent rescinded) to their old, status quo ante jobs, or substantially equivalent jobs, discharging any replace- ments hired on or after May 13, 1982, under terms and conditions of employment of the expired contracts, and to make them whole for wages and other benefits, meas- ured under status quo ante conditions, lost by virtue of Respondent's unlawful conduct. Backpay to all unlawful- ly discharged employees shall be computed from the date of discharge, and unfair labor practice strikers re- fused lawful reinstatement, from June 28, 1982, the date of their unconditional offer to return to work, Exchange Bank, 264 NLRB 822 (1982), with ultimate net loss of earnings being computed as prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). Backpay shall cease on offering such employees reinstatement to their old or substantially equivalent jobs. In addition, Respondent, in restoring the status quo ante of the expired agreements, shall make contributions to the Union for the pension and other funds and insurance plans which are mandato- ry subjects of bargaining and to which Respondent, after 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 11, 1982, failed to contribute pursuant to its unlaw- ful conduct, Vin James Plastering Co., 226 NLRB 125, 132 (1976); F.M.L Supply, supra at 620. Unit employees employed or hired on or after the date of May 11, 1982, when Respondent first failed to abide by, or apply, the terms of the expired agreements , shall be made whole under the terms and conditions of the expired agreements subject to diminution for interim earnings. Ogle Protection Service, 183 NLRB 682 (1970). Respondent shall also re- imburse employee contributions to health and welfare funds, to private insurance, for medical bills and other losses resulting from Respondent 's unlawful failure to make contributions under and observe the terms and conditions of the expired contracts. F.M.L. Supply, supra; Kraft Plumbing, Inc., 252 NLRB 891 (1980). The ques- tion of interest, and other additional amounts payable into the pension fund or other funds as part of this "make whole remedy," will be left to the compliance stage of this proceeding. Merryweather Optical Co., 240 NLRB 1213 (1979). No striking empoyee, found dis- charged for cause, need be reinstated, provided, as above noted, that backpay and other benefits shall be paid to any such employee discharged after June 28, 1982, from that day until date of lawful discharge . O. R. Cooper & Son, 220 NLRB 287 fn. 1 (1975). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed45 ORDER The Respondent, Richmond Recording Corporation, d/b/a PRC Recording Co., Richmond, Indiana, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing, on request, to bargin collec- tively with Local Union 2043, International Brotherhood of Electrical Workers, AFL-CIO, as the representative of its employees in the following appropriate units, by unilaterally changing and implementing job combina- tions, rates of pay , wages, hours, and other terms and conditions of employment without first bargaining to good-faith impasse or gaining the Union's consent: (1) All production and maintenance employees at all Respondent's Richmond, Indiana plants; BUT EX- CLUDING all watchmen, Printing Department em- ployees, office clerical employees, all guards, pro- fessional employees, all employees included in that appropriate unit of employees decribed herein below in sub-paragraph (b), and all supervisors de- fined in the Act. (2) All Tape Division Production and Maintenance employees working at all of the Respondent's Rich- mond, Indiana plants; BUT EXCLUDING all office clerical employees, guards, professional em- ployees, all employees included in that appropriate 45 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. unit described above herein in sub-paragraph (1), and all supervisors as defined in the Act. (b) Threatening employees in the above-described units that in the event they reject Respondent's final con- tract offer, and engage in a strike, Respondent would withdraw that final offer and offer only a less desirable substitute therefore. (c) Discharging striking employees who do not engage in disqualifying strike misconduct. (d) Failing and refusing to immediately reinstate its striking employees who are unfair labor practice strikers on their unconditional offer to return to work, discharg- ing, if necessary, any replacements. (e) 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 with the Union as the exclusive representative of the employees in the above-described appropriate units and, if any understand- ings are reached , embody any such understanding in a signed agreement or agreements. (b) Restore and place in effect, retroactive to April 30 and May 1, 1982, respectively, all the wages, hours, rates of pay, and all other terms and conditions of employ- ment, excepting union security, checkoff, arbitration, and other nonmandatory subjects provided by and estab- lished in the collective-bargaining agreements with the Union covering the employees in the appropriate units above-described, which agreements expired, respectively, on April 30 and May 1, 1982, until such time as the par- ties to the agreements bargain to good-faith impasse, exe- cute new collective-bargaining agreements, or the Union refuses to bargain; and make whole all employees, for the period May 6 through 12, 1982, who, but for Re- spondent's unlawful implementation of combined jobs, would have been employed under the terms of the ex- pired agreements. (c) Remit to the Union or, in the case of employee payments or losses, to employees, such contributions to the pension funds, group insurance policies, and such other payments and contributions to the Union and to Respondent's employees included in the above-described appropriate units to whom or on whose behalf contribu- tions and payments were previously made, or should have been made had Respondent, commencing May 11, not ceased to comply with the terms of the expired col- lective-bargaining agreements, and make the same contri- butions and payments of wages, and other benefits to em- ployees performing work in the appropriate units hired on and after May 11, 1982, except that no checkoff or remissions of Union's dues or fees shall be made on behalf of such employees except insofar as they shall have provided Respondent, in writing, with authoriza- tions therefore, as provided in the remedy section of the decision. (d) Offer to Marlene Anderson, Sarah Drook, Cather- ine Hatfield, Bertha Hedrick, Sherry Ritchie, Pamela Rogers, Elizabeth Willoughby, Sophie Van Winkle, Florence Watson, Pauline Smith, Roger Block, and PRC RECORDING CO.. 669 Glenna Phillips, and to all other of its 'employees, listed on attached "Appendix B," except those found dis- charged for cause herein, immediate and unconditional reinstatement to their former or substantially equivalent positions of employment as they existed prior to May 5, 1982, discharging if necessary, any replacements, without prejudice to their seniority or other rights and privileges, and make each of them (and its unlawfully unreinstated strikers found lawfully discharged for picket line miscon- duct after June 28, 1982) whole for any loss of wages suffered by reason of Respondent's unlawful conduct against them as provided in the decision and in the remedy section. (e) Remove from its files any references to the unlaw- ful discharges of Pauline Smith, Roger Block, Glenna Phillips, Marlene Anderson, Sarah Drook, Catherine Hatfield, Bertha Hedricks, Sherry Ritchie, Pamela Rogers, Elizabeth Willoughby, Sophie Van Winkle, and Florence Watson, on and after May 13, 1982, and notify each of them, in writing that this has been done and that the discharges will not be used as a basis for future per- sonnel actions against them. (f) Preserve and, on request, make available to author- ized agents of the Board for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay and contributions due under the terms of this Order. (g) Post at its plant in Richmond, Indiana, copies of the attached notice marked "Appendix."46 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and-maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 46 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 "