Nassau Insurance Co.

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nassau Insurance Company and Edward Bruce Luria and Dorothy Shwide and Local 917, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Nassau Insurance Company. Cases 29-CA-6478, 29-CA-6478-2, 29-CA-6702, 29-CA-7076, 29-CA-745 1, and 29-CB-3760 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 4 March 1982 Administrative Law Judge El- eanor MacDonald issued the attached decision. Both the Union and the General Counsel filed ex- ceptions and supporting briefs, and Respondent Nassau filed cross-exceptions to and a brief in sup- port of the judge's decision.I The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions? and to adopt the recommended Order. 1 Respondent Nassau moved to strike the Union's exceptions and brief and the General Counsel 's brief for failing to comply with the provisions of Sec 102.46(b), (c), and (i) of the National Labor Relations Board Rules and Regulations . Although the Union's exceptions and brief in sup- port thereof and the General Counsel's brief do not conform in all par- ticulars with the above-cited sections of the Board 's Rules and Regula- tions, they are not so deficient to warrant sinking. Furthermore, Nassau alleges no prejudice which results from the failure of the documents to meet the Board's minimum standards Accordingly, the motion is denied In addition, Nassau has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The judge, in the last sentence of sec II,B,5 of her decision , stated with regard to the dismissal of an alleged violation of Sec . 8(axl) that certain statements purportedly made by Nassau's president DiLoreto "cured" any possible violation We agree with the judge's earlier conclu- sion that the testimony of Anna Bucchio is insufficient to establish a puma facie case that she was unlawfully threatened with discharge We, therefore, find it unnecessary to pass on the legal effect of DiLoreto's statement In light of our agreement with the judge that the Union engaged in an unprotected strike, we also find it unnecessary to pass on any striker rein- statement rights, including Nassau 's rights to refuse to rehire employees engaged in strike misconduct 3 We agree with the judge's findings that the Union unlawfully insisted upon nonmandatory subjects of bargaining and engaged in a strike to sup- port its demands for nonmandatory bargaining subjects Such a strike is not only unprotected, but also is unlawful as a breach of the duty to bar- gain Longshoremen ILA (New York Shipping), 118 NLRB 1481 (1957), enf denied on other grounds 277 F 2d 681 (D C Cir 1960) At the times the Union requested Nassau to bargain, the Union had not retreated from its unlawful bargaining posture and its unlawful strike was in progress In light of the Union's unlawful insistence on its bargaining demands and its attempt to enforce those demands through unlawful strike action, we conclude that Nassau's failure to negotiate in response to the Union's re- quests did not violate Sec 8(a)(5). See Shell Oil Co, 194 NLRB 988, 995 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local 917, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, New York, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the complaints against Respondent Nassau Insurance Company are dismissed. (1972), enfd 486 F 2d 1266 (D C Cir 1973 ). Members Dennis and Ste- phens, therefore, find it unnecessary to pass on the question whether the Union's violations of Sec 8(b)(IXA) during the course of the strike sus- pended Nassau's duty to bargain. Chairman Dotson agrees with the judge that Nassau's bargaining obligation was suspended by the Union's serious strike misconduct, including physical violence, in the absence of assur- ances by the Union that the misconduct would not be repeated Bert A. Bunyan, Esq., for the General Counsel. Harold R. Weinrich, Esq., Michael J. Soltis, Esq., James R. Williams, Esq. (Jackson, Lewis, Schnitzler & Krup- man), of New York, New York, for Nassau Insurance Company. Irving T. Bush, Esq., of New York, New York, for Local 917, IBT. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was heard in Brooklyn, New York, and New York, New York, on 74 days between March 3 and No- vember 10, 1980. The complaints allege that in violation of Section 8(a)(1), (3), and (5), Respondent Nassau Insur- ance Company: (1) Threatened employees in April and May 1978 and March 1979, with discharge if they engaged in a strike or other protected activity. (2) Threatened in April and May 1978 not to bargain with the Union. (3) Discharged Dorothy Shwide and Edward Bruce Luria in June 1978, because they joined and assisted the Union and engaged in other concerted activity. (4) Negotiated in bad faith with the Union since June 13, 1978, and on February 21 and March 7, 1979, negoti- ated in bad faith and with no intention to enter into any collective-bargaining agreement. (5) Failed and refused to make its offer to the Union in writing since February 21, 1979, notwithstanding that on January 29, 1979, Respondent agreed to make an offer in writing. (6) By its unfair labor practices caused and provoked a strike of its employees on March 12, 1979. (7) Refused since September 5, 1979, to reinstate cer- tain named employees who made an unconditional offer to return to work. The complaint in Case 29-CB-3760 alleges that in vio- lation of Section 8(b)(1)(A), Respondent Local 917: 280 NLRB No. 103 NASSAU INSURANCE CO. (1) Threatened various employees of Nassau Insurance Company and other employers and, in the presence of employees of Nassau, threatened various supervisors and agents of Nassau to inflict and inflicted bodily injury and other harm to their persons, and threatened to inflict and inflicted damage to their property on various dates since March 1979. (2) Attempted to block the entrances to and exits from Nassau's premises, and attempted to prevent employees of Nassau from entering and leaving the Nassau premises on various dates since March 1979. The parties entered into a settlement agreement which was approved by the Regional Director for Region 29 on December 29, 1978. This settlement disposed of the complaints relating to the discharges of Shwide and Luria and the alleged refusals to bargain and threats to employees by Nassau occurring in 1978. By the terms of the settlement agreement, Nassau agreed that it would not discourage membership in Local 917 by,discharging or refusing to reinstate any of its employees, threaten its employees with discharge or reprisals if they engage in a strike or other protected activity, refuse to bargain col- lectively with Local 917, or in any other manner inter- fere with, restrain, or coerce its employees. On June 29, 1979, the Regional Director vacated and revoked the set- tlement agreement on the ground that Nassau had not "complied properly" with the agreement and had com- mitted further unfair labor practices. Respondent Nassau Insurance Company filed an answer denying the material allegations of the complaints filed against it and asserting certain affirmative defenses which are discussed below. On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the parties in June 1981, I make the following FINDINGS OF FACT 1. JURISDICTION Nassau Insurance Company is a New York corpora- tion engaged in the sale of insurance with its principal office and place of business in Jamaica, Queens, in New York, New York. In the course and conduct of its busi- ness, Nassau annually derives gross revenues in excess of $500,000 and causes to be delivered to its Jamaica office goods and materials valued in excess of $50,000 which are transported in interstate commerce directly from States of the United States other than the State of New York. Nassau admits and I find that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the 'Act, and that Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Complaint Against the, Union The complaint in Case 29-CB-3760 based on a charge filed by Nassau on April 18, 1979, alleges that Andrew Bove, Joseph Looney, and Langston McKay have been 879 at all times material to the complaint representatives and agents of Local 917 and acting on its behalf,, and that since about March 12, 1979, Local 917 has been-engaged in a strike and picketing at the Nassau premises iii Jamai- ca, Queens. The complaint further alleges that _ On or about March 13, 29, April 2, 4, 5, 10, 11, 13, 15, 23, 25, 27, 1979, and at various other dates presently unknown between March 12 and the present, Respondent, by Andrew Bove, Joseph Looney, and Langston McKay, its representatives and agents and by other persons acting in its behalf, at, and in the vicinity of the picket line established and maintained by Respondent at Nassau's Jamaica office and premises threatened various employees of Nassau and other employers, and in, the presence of employees of Nassau, threatened various supervi- sors, agents and representatives of Nassau, to inflict, and inflicted bodily injury and other harm to their persons, and threatened to inflict and inflicted damage to their property. On or about March 13, April 2, 11, 25, 27, 1979, and on various other dates presently unknown be- tween March 12 and the present, Respondent by Andrew Bove, Joseph Looney, and Langston McKay, its representatives and agents and by other persons acting in its behalf, at and in the vicinity of the picket line established at Nassau's Jamaica office and premises, attempted to block entrances to and exits from Nassau's Jamaica office and premises, and attempted to prevent employees of Nassau from en- tering and leaving the said office and premises. Respondent engaged in the conduct described above in paragraphs 9 and 10 with an object to induce employees to support and assist Respondent and not to cross the picket line established by Re- spondent at Nassau's Jamaica office and premises as described above in paragraph 8. By the acts described above in paragraphs* 9 through 11, and by each of said acts, Respondent restrained and coerced, and is restraining and coerc- ing employees in the exercise of the rights guaran- teed in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. The acts of Respondent described above in para- graphs 9 through 11, occurring in connection with the operations of Nassau described above in para- graphs 2 through 5 have a close, intimate, and sub- stantial relation to trade, traffic, and, commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. This complaint was issued on June 22, 1979. No answer was filed to the complaint within 10 days pursu- ant to Rule 102.20 nor was any written order for an ex- tension of time within which to file an answer granted pursuant to Rule 102.22. However, on September 7, 1979, Local 917 sought to interpose an answer in the in- stant proceeding. On the first day of the trial, counsel for 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nassau moved to strike the Union's answer as untimely filed under the Board's Rules. Counsel for Local 917 stated at the trial that he believed that only the General Counsel could object to the late filing of an answer and further that he had received verbal extensions of time to file the answer from the Board. Counsel for Local 917 did not elaborate on this assertion or provide names or specifics. Counsel for Local 917 did not state that any special circumstances were present warranting a depar- ture from the Board's Rules. Rule 102.22 states that "the regional director issuing the complaint may by written order" extend the time to answer. That was not done in this case, nor was there any proof that verbal extensions or assurances were given to Local 917. I therefore grant- ed the motion to strike the answer of Local 917 in Case 29-CB-3760, on the first day of the trial, March 3, 1980. In June 1980, Local 917 sought special permission to appeal this ruling. By order of June 17, 1980, the Board denied Local 917's request for special permission to appeal the ruling granting the motion to strike the late filed answer on the ground that "it is lacking in merit." Thus, pursuant to Rule 102.20, the allegations in the complaint are "deemed to be admitted to be true" and are so found, no good cause to the contrary having been shown. i I therefore find that the Union violated Section 8(b)(1)(A) by threatening employees and supervisors of Nassau and employees of other employers to inflict bodily injury and inflicting bodily injury and by threat- ening to inflict and inflicting property damage, and by attempting to block ingress and egress of employees at the Nassau premises.2 B. The Complaint Against the Nassau Insurance Company The General Counsel alleges that Respondent Nassau bargained in bad faith both before and after the signing of the settlement agreement of December 29, 1978. A finding of postsettlement unfair labor practice is a pre- requisite to a finding that the Regional Director properly set aside the settlement agreement and to a consideration of presettlement unfair labor practices .3 I shall also de- scribe some of the presettlement negotiations as neces- sary background to my discussion of the postsettlement allegations. 1. The alleged presettlement bad-faith bargaining The allegations of bad faith bargaining which formed the basis of the 8(a)(5) charges disposed of by the De- cember 29, 1978 settlement agreement were that Nassau had failed without justification to include in its final pro- posal a union-security clause and that it had withdrawn ' Indeed, much of the evidence presented by Nassau in support of its affirmative defense to the allegations in the other complaints herein also supports the allegations of the complaint in Case 29-CB-3760 This evi- dence will be discussed below 2 Union National de Trabajadores (Carborundum Co.), 219 NLRB 862 (1975), enfd as modified 540 F 2d I (1st Cir 1976), cert denied 429 U.S 1039 (1977), Service Employees Local 254 (MIT), 218 NLRB 1399 (1975), enfd as modified 535 F 2d 1335 (1st Cir. 1976) a Interstate Paper Supply, 251 NLRB 1423 (1980) part of the wage provision of its final offer after Local 917 had publicized the offer to the unit employees. Bargaining between Nassau and the Union commenced after certification of Local 917 on May 25, 1978, as the exclusive representative of a unit of clerical employees. By the end of September 25, 1978, numerous negotiation sessions between Nassau and the Union had produced agreement on a detailed and lengthy contract; however, the details of a portion of the wage offer, the Union's demand for a union shop, and Nassau's proposal for an open-shop clause had not been agreed on, as well as cer- tain other items. Harold Wolchok, the secretary-treasurer of Local 917, testified that he entered the negotiations after they had been going on for some time to help bring matters to a conclusion.4 During the negotiations, Neil Frank, an at- torney representing Nassau, told Wolchok that if the Union would consider a reasonable economic proposal, the Employer would agree to a "resolution" of the re- quest for a union-shop clause. Wolchok then asked Frank for the Employer's final offer, and on September 25, 1978, a Monday, Frank gave an offer that did not in- clude a union shop, but that dealt with wages, vacation, holidays, sick leave, and merit increases. Under the Em- ployer's proposal, merit increases would be paid retroac- tively to those employees whose anniversary dates had been passed and whose merit increases were overdue, and the general wage increase for all employees would be an "add-on." Wolchok testified that the purpose of the meeting on September 25 was to receive the Compa- ny's final offer. All substantive provisions of the contract had been agreed to except for wages and the union-shop clause . Wolchok told Frank that the Company's offer was not acceptable because it did not include a union- shop clause. At one point during the meeting, Frank had said he would consider a union-shop clause, but after consulting with his client, Frank said he was not author- ized to grant it. Wolchok testified that he and the mem- bers of the committee felt that they had been taken ad- vantage of because the proposal did not deal with a union shop. However, Wolchok decided to distribute the final offer to the employees pending a ratification meet- ing scheduled for Friday, September 29, and immediately after the meeting on September 25 he went back to the union office and prepared a document for distribution to the employees.5 The next morning, Wolchok testified, he received a telephone call from Frank in which Frank said that he was "embarrassed" because his client was rescinding the final offer. Frank was in Rhode Island, and Wolchok 4 Wolchok answered evasively and uncooperatively on cross-examma- tion, argued with counsel for Respondent Nassau despite the courteous and patient attitude of counsel, and often stated that he could not remem- ber things to which he had just testified He gave inconsistent testimony on many occasions, even contradicting the plain language of documents he had before him while testifying Therefore, I find that he is not a reli- able witness and I shall not credit his testimony where it is contradicted by more reliable evidence 5 Wolchok testified that a ratification vote by the membership is re- quired for the Union to accept an employer's contract offer If the mem- bership votes to reject the contract, the Union attempts to renegotiate and it may also call a strike vote NASSAU INSURANCE CO. 881 tried to call him back without any success; a reason for the call was to see if Frank would offer a union shop. That afternoon, Wolchok received a letter from Frank confirming the conversation. The letter, dated September 28, 1978, was hand delivered to Wolchok. It stated, in pertinent part, that the Company offered "to pay merit increases to employees who were entitled to a review during the time negotiations were in progress, retroactive to the employees' review date; the amount of such in- creases to be deductible from the general increase due to reviewed employees when the agreement is signed." Wolchok stated that after he received this letter, he typed a note at the bottom of the letter and sent it back to Frank. His note said that the Company had made a substantial change in its offer of September 25 and that the action constituted bad-faith bargaining. On cross-examination, Wolchok testified that Frank said during their telephone conversation that he was "not authorized" to give both the merit increase and the gen- eral increase Wolchok said Frank then withdrew the offer. Wolchok also testified that he then told Frank, "We would have to negotiate the whole thing again." Wolchok testified in response to questions posed by counsel for Respondent that he could not remember ex- actly what Frank said to him when they spoke after Sep- tember 25 because "it is so far away." Wolchok's affida- vit given to a Board agent states that "On Friday morn- ing, September 29, I received a long distance call from Mr. Neil Frank, he said . . . his client had notified him that he [Frank] was not authorized to make that final offer." This sworn statement is in contrast to Wolchok's testimony that Frank called and said that DiLoreto took the money away or rescinded the final offer, neither of which statements appear in Wolchok's affidavit. Andrew Bove, business representative of Local 917, testified that on September 25, 1978, the parties agreed upon a no-strike no-lockout clause, and a management- rights clause combined with a union-shop clause. 6 Fur- ther, Frank offered a general increase of $13 weekly for the first year, followed by $12.50 and $12.50 in each of two subsequent years, plus the payment of retroactive merit increases. Bove testified that at this meeting the Union accepted the Company's offer, but that after Frank returned from making a telephone call, he stated that there would be no union shop. At this point, Bove replied that there could then be no management preroga- tive clause. At the meeting, according to Bove, Wolchok told Frank that the contract would have to be submitted to the union membership for ratification in accordance with the International constitution. Bove asserted that the union representatives were obliged under the consti- tution to "accept any final offer" and submit it to a ratifi- cation vote. Bove stated that the Union's representatives 6 Bove testified that it was difficult for him to recall accurately the details of all the meetings which he attended Further, he gave contradic- tory testimony and tended to exaggerate and distort the facts in an at- tempt to make the Employer's representatives appear in a bad light Often his testimony about the Employer's conduct conflicted with his sworn affidavit or with letters he had written contemporaneously with the events he was testifying about Therefore, I do not find that he was a reliable witness and I shall not credit his testimony where it is contradict- ed by more reliable and credible evidence could not agree to any contract until the membership had ratified the proposal. Indeed, Bove testified, at the negotiation session of June 13, 1978, he informed the Company's representatives that the Union reserved the right to add to, withdraw, or modify any of its proposals during the course of negotiations. Bove agreed that this was a right which could be, and was, exercised by both parties to the negotiations. After the September 25 meeting, Bove testified, he was told that Frank withdrew the offer because DiLoreto would not pay it. Neil Frank testified that he spoke to Wolchok on many occasions during the negotiations concerning a union shop, and that Wolchok's great concern was the union shop.7 Frank told Wolchok all along that he would do his best to sell a union-security provision to the client if he had a good agreement to use as a selling point. At the end of their September 18 meeting, the par- ties agreed the following items were open: retroactivity of the contract, merit increase, wage progression for new employees, general increase, past practice clause, man- agement-rights, union shop, part of holidays and vacation schedule, severance pay, wildcat strike, additional sick day, and dental or pension plan. Frank attended the September 25 session alone on behalf of the Employer. Wolchok and Bove were there with the committee. Frank gave a final offer: a weekly wage increase of $13, $12.50, and $12.50; wage progres- sion for new employees of $105, $115, and $125 weekly; no retroactivity of wages or benefits; and full retroactiv- ity of merit increases with elimination of the merit pro- gram on signing the contract. Frank told the Union that there were other open issues remaining and asked if there was still a problem on management-rights and the no- strike clause. Bove said the offer was "no good, lousy, bad." Wolchok asked about the union shop, and Frank said that he could try to sell his client on the idea if he had a good contract to present to him. However, the final offer did not include a union shop. Wolchok agreed to review the language at that point, and the parties agreed to a number of items. Wolchok then reiterated the agreements reached and the remaining open items which included contract retroactivity, dental, optical, and pension plans, union shop, and past practice. Finally, Wolchok said that employees who were due a merit in- crease would receive both that and the general increase. Frank testified that although throughout the negotiations he had stressed that the merit increase must be deducted from the general increase, he did not contradict Wol- chok at that point based on a spur of the moment deci- sion to avoid a breakdown in negotiations. After Wol- chok had reviewed and described the final positions of the parties, he asked Frank, "What about union shop?" Frank went to phone Richard DiLoreto, president of the Nassau Insurance Company, and he informed him what the final positions of the parties were. Frank told DiLoreto that he thought it was a pretty good deal and that the Union was going to take back the final offer to 4 Frank, a senior partner in the law firm representing Nassau, testified in a clear, consistent , and forthright manner and he was responsive and cooperative on cross-examination I shall credit his testimony 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees. He advised DiLoreto that if the employ- ees turned it down there would be a strike, and that the key issue to avoid this was a union shop. But DiLoreto still refused to agree to a union shop, and Frank returned to the meeting and informed the Union of DiLoreto's re- fusal. When he told Bove and Wolchok of his inability to agree to a union shop, they both began screaming, and Bove said that the employees would not ratify the con- tract without the union shop. Frank was out of town after September 25, and when he returned to his office on the morning of September 27, Eisenberg told him that the Union had handed out an inaccurate description of the final offer to the employees. Eisenberg told Frank that DiLoreto was very upset that the Union was telling the employees that the Company offered both the merit and general increases without a set-off. Frank acknowledged that he had offered that, whereupon Eisenberg said that DiLoreto was "livid" and "yelling and screaming on the phone." After talking to Weinrich,s who informed Frank that Bove said the Union had not agreed to the contract because of the lack of union security, Frank called DiLoreto.9 DiLoreto re- fused to go along with Frank's offer saying it was unau- thorized; and Frank decided he had to inform the Union of the Company's position. Frank prepared a statement which he read to Wolchok over the telephone. The statement related, in substance, that DiLoreto had not authorized Frank's offer, was un- willing to go along with it, and that all DiLoreto would agree to was the original position to deduct merit in- creases from the $13 general increase.10 After he read the statement to Wolchok, the latter asked what Frank could do about union security because "that was the hang up." Frank noted Wolchok's request about the union shop at the bottom of his prepared statement, and he later mailed a letter to the Union confirming his tele- phone confirmation. Harold Weinrich testified that on September 26, 1978, he met Bove at an unemployment hearing at the World Trade Center."' When Weinrich asked how the meeting of September 25 had gone, Bove replied "that the Com- pany had offered the same old shit and that the employ- ees would be out in the street within a week." Bove told Weinrich that the International had authorized a strike and that the Union would not recommend the offer to the employees. Weinrich then told DiLoreto to prepare for a strike, and on the next day related the conversation to Frank. In the evening of September 26, Weinrich learned that the Union was distributing documents to the a Weinrich was an associate of the law firm who had represented Nassau in the earlier meetings with the Union Eisenberg , another associ- ate, had attended some prior meetings. 11 Earlier that day, Frank had spoken to Wolchok who was still asking whether Frank could get some movement on union security 10 Frank testified that he had general authority to discuss the negotia- tions and to reach agreement on all matters and issues subject to his un- derstanding with DiLoreto concerning what he could offer in the major money items and the union security He did not have authority to grant both the retroactive merit increase and the full general wage increase 11 Weinrich was a cooperative witness who answered fully on cross- examination He had an excellent recollection of the material events, gave entirely consistent testimony, and occasionally refreshed his recollection with notes taken contemporaneously to the events he was describing I shall credit his testimony. employees as they left work. The next day, September 27, Weinrich learned that DiLoreto had called and stated that the Union's document misstated • the Company's offer. Later, Frank told Weinrich that "through a failure of communication he had made an offer to the Union that he was not authorized to make" in that he had of- fered a general increase plus the merit increase without any offset. Frank told Weinrich that he had not been able to convince DiLoreto to "live with" the offer as made. Frank and Weinrich then discussed the legal impli- cations of the situation. Weinrich told Frank that Bove had expressed the Union's dissatisfaction with the Em- ployer's September 25 offer and had stated that the em- ployees would soon go on strike, and Weinrich gave Frank his opinion that under the circumstances it would not constitute bad-faith bargaining to modify the unau- thorized offer. In view of the fact that I find the testimony of Frank and Weinrich more reliable than that of Bove and Wol- chok, I shall credit the version of the events surrounding September 25, 1978, as related by Frank and Weinrich. Thus, I find that Frank was not authorized to depart from the Employer's longstanding position that merit in- creases would be retroactive to the date due but would be a set-off against the general wage increase to be im- plemented with the signing of the contract. I further find that Frank made the unauthorized offer to give employ- ees both a retroactive merit increase plus a general wage increase on September 25 and that on September 27, 1978, he informed Wolchok that he was obliged to modify the offer because it had been unauthorized and DiLoreto would not agree to go along with it. The modified wage offer provided for a retroactive merit in- crease for those employees whose anniversary dates had been reached prior to signing the contract and a $13 gen- eral weekly increase effective on signing the contract but offset against any merit increase on an individual basis. After the events of late September 1978, the Employ- er's representatives sought further negotiations or, in the alternative, submission of the modified offer to the em- ployees for a ratification vote. However, the Union filed its charge, a complaint issued, and then a settlement agreement was signed on December 29, 1978. Wolchok testified that while the charge was pending against Nassau prior to the signing of the settlement agreement, he did not think it appropriate for the Union to bargain with the Employer. That is why the Union did not re- spond to the Employer's written requests to continue the negotiations. 2. Alleged postsettlement bad-faith bargaining There were three collective-bargaining sessions be- tween the parties after the execution of the settlement agreement. The General Counsel asserts that at the first such session, which took place on January 29, 1979, the Union accused Nassau of unlawfully reneging on its final offer made in previous sessions and asked that the Em- ployer now submit its final offer in writing to prevent misunderstanding when the offer was transmitted to the unit employees for ratification. The General Counsel as- serts that the representatives of Nassau agreed to submit NASSAU INSURANCE CO. such a written final offer at the next negotiating session. That session took place on February 21, 1979, and the General Counsel claims that the representatives of Nassau refused to give a written offer and insisted on giving an offer orally and, further , that Nassau refused the Union's suggestion that Nassau present its offer to a meeting of the employees . The General Counsel alleges that the third meeting took place on March 7 , 1979, as a result of the employees' vote to strike unless a final offer was submitted by March 12 . At this meeting, Nassau re- fused to bargain in the presence of a court reporter, en- gaged by Local 917, who was present with a stenotype machine. There has been no bargaining between the par- ties since March 7, 1979, although, according to the General Counsel , the Union has attempted to resume ne- gotiations. a. The meeting of January 29, 1979 Wolchok testified that he represented the Union at the meeting on January 29, 1979 . To bring the negotiations to a quick conclusion , he requested of Weinrich "that the company give us without any further effort, their final offer in writing so that we could submit it to the employ- ees and let them vote yes or no ." Wolchok testified that Weinrich agreed to give Nassau's final offer in writing at the next bargaining session. Wolchok testified that the Employer had submitted written proposals in the past, including portions of a proposed contract, and that no reasons had been given by the Employer to justify the refusal to submit a written offer in 1979 . However, Wol- chok acknowledged that economic proposals had never been made in writing . Wolchok stated that the meeting of January 29 was an emotional one, with much shouting back and forth . The Union made no proposal; it only de- manded that the Employer's representatives submit a final offer in writing. On cross-examination, Wolchok ac- knowledged that after the events of September 1978, he had told Neil Frank that the entire agreement would have to be renegotiated, yet the first thing he demanded when the negotiations resumed in January 1979 was a final offer from the Employer. Weinrich testified that in January 1979 he spoke on the telephone with Wolchok and informed the latter that he would be resuming the role of chief employer spokesman at the negotiations . Wolchok expressed his dismay at hearing this because, he said, he had gotten along very well with Frank. Wolchok then asked to resume negotia- tions and the two men discussed scheduling . Subsequent- ly, Wolchok asked if the Employer would change its po- sition on union security; he informed Weinrich that a Board agent had told him during the investigation lead- ing to the settlement agreement that the Company was willing to discuss forms of union security other than a union shop. Weinrich replied that the Company did not favor a union shop, but that it would be willing to dis- cuss the whole subject including other forms of union se- curity. The two then agreed to meet sometime in Janu- ary 1979; the meeting was eventually set for January 29. At the meeting of January 29 , Weinrich was accompa- nied by Kevin Doyle of his law firm, and Wolchok was accompanied by an employee committee . Bove was not there. According to Weinrich, Wolchok began by re- 883 hashing the past events and accused the Employer and its law firm of sowing the seeds of the collapse of the economic system. Wolchok brought up the subject of union security. Weinrich took the position that the Em- ployer did not want to force people to join the Union, and Wolchok pointed out that the Union as certified rep- resentative had no free choice because it was obliged to represent nonmembers . The parties discussed retroactiv- ity; Wolchok wanted any agreement to be effective as of September 25, 1978, for the general increase, although Weinrich opposed this demand, saying that the Union had not permitted the employees to accept the Employ- er's modified proposal in September and that a lot of time had passed since then. Wolchok maintained that the offer of September 25 had been withdrawn, but Weinrich explained that only a small modification of the Septem- ber 25 offer had taken place , and the two then discussed the Employer's merit increase offer and the proposed set- off of merit increases and the general increases. Weinrich explained that the general weekly increase of $13 that was offered on September 25 was still being offered by the Employer to take effect when the contract was signed. Weinrich told Wolchok that Nassau had wanted to pay the merit increases and had several times request- ed permission to do so, but that Bove had refused to permit this, and that this created problems for the Em- ployer in that certain employees had not received an in- crease in a long time . Weinrich told Wolchok that be- cause the Union had not wished to present the Compa- ny's final offer, as modified, to the membership, he would have to prepare a new proposal. Weinrich sug- gested that if a 1-year contract were agreed on, he would be able to offer more money. At least three times Wolchok asked for the Employer's proposal in writing. Weinrich stated that he had no new proposals with him and that these would have to be pre- pared. After Wolchok's final request for written propos- als, Weinrich replied that he would give him an offer subject to negotiation. Wolchok replied that he wanted the "employees to see who is who." Weinrich asked him if he wanted to arrange another meeting, and Wolchok answered, "No, put it in writing. We'll transmit it." Weinrich told Wolchok that he would consider what to do and would contact Wolchok . At that point, the meet- ing ended. Weinrich testified that he was leaning toward the conclusion that he would not make written proposals because these would stifle the negotiations. In view of the fact that I have found that Weinrich is a more reliable witness than Wolchok, I find, consistent with Weinnch's testimony, that on January 29, Weinrich made no promise that he would have a final offer in writing at the next session . I find that Weinrich merely told Wolchok that he would consider the request for a final offer in writing and that he would be prepared with proposals at the next meeting. b. The meeting of February 21, 1979 In early February 1979, Weinrich wrote to Wolchok suggesting a meeting for that month. Wolchok was unable to attend on the date suggested by Weinrich, and it was agreed to meet on February 21. Weinrich was 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again accompanied by Doyle. Wolchok and Bove were there for the Union, along with the employee committee. Wolchok testified on direct-examination that at this meeting Weinrich announced that he had not been au- thorized to give the final offer in writing. Wolchok then suggested that Weinrich and DiLoreto give the final offer at an employee meeting . On cross-examination, Wolchok testified that at this negotiation session the Union constantly demanded a final offer in writing and Weinrich on numerous occasions stated that he was pre- pared to give a final offer orally. Wolchok told Weinrich that he wanted an offer in writing because the company representatives' past declarations were "worthless" and that it "would be foolish to go through the same thing." Wolchok acknowledged that he had stated that it would be futile to continue the meeting and that he left after caucusing with the employee representatives present. Concerning the Union's insistence on an offer in writ- ing, Wolchok testified that the employees were "badger- ing" the negotiating committee because their merit incre- ments had not been paid. Apparently, Wolchok's con- cern was that the employees blamed the Union for having received no merit increases since the election, and Wolchok wanted the Employer's offer to be made direct- ly to the employees so that they would cease blaming the Union. Wolchok testified that "the Union was getting heat" from the employees constantly due to the length of the negotiations. For this reason, the Union did not ask for further negotiations, it wanted only a final offer. Wolchok stated that Weinrich declined his request to address the unit employees directly and give them to Company's final offer. Weinrich told Wolchok that it would be improper for him to negotiate with the entire unit. 12 Bove testified on direct examination that when the meeting started, Wolchok asked Weinrich for the final offer in writing. Weinrich replied that he would give the final offer verbally. When Wolchok asserted that Wein- rich had promised at the last meeting that he would present the Employer's final offer in writing, Weinrich denied that he had made such a promise. Wolchok per- sisted in his demand and Weinrich excused himself to make a phone call. When Weinrich returned, he stated that he would make a final offer verbally. Wolchok in- sisted that he wanted the final offer in writing because a member of Weinrich's law firm had previously claimed to be "misunderstood" when presenting a final offer and Wolchok could not "take your word for any final offer." When Weinrich insisted that he would make the final offer verbally, Wolchok suggested that Weinrich give the offer at a meeting of Nassau employees that had been called for that evening. Weinrich replied that he was un- aware of such a meeting and left to make a phone call. He returned and repeated that he would give the offer verbally. According to Bove, Wolchok then said, "I can't take it verbally, because I can't trust your company and I can't trust your law firm. We went through that before and I want it in writing." Weinrich replied that there was nothing else to talk about and he left, saying, "I'll get back to you for the next meeting." 12 The bargaining unit numbered from 40 to 60 employees. On cross-examination, Bove acknowledged that in answer to Wolchok's demand for a written offer, Wein- rich replied that he had only agreed to consider Wol- chok's previous demand for a final offer and, having con- sidered the matter, he had decided that a written offer would not be in anyone's interest. Bove further testified that neither his affidavit given to a Board agent nor his negotiation's notes reflect that Weinrich ever stated, "I guess we have nothing else to talk about," and then left the meeting. Bove acknowledged that Weinrich repeat- edly offered to make a proposal to the Union at this meeting. Weinrich testified that shortly after the February 21 meeting began, Wolchok said that he expected Weinrich to give the Company's offer in writing "today." Wein- rich informed Wolchok that he had no offer in writing, that he had never promised to give an offer in writing, that all he had said was that he would consider whether to do so, and that, on consideration, he had decided that it would not serve the parties' best interests to make an offer in writing. Weinrich concluded by saying that he wanted to negotiate and, as a result of the negotiations, make an offer. Weinrich repeatedly emphasized these points to Wolchok but, each time he did, Wolchok said that he would not take an oral offer. Wolchok explained his refusal by saying that he could not trust Weinrich's firm and that he wanted to show the employees who was at fault because the employees were blaming the Union for a lack of results. After a while, Wolchok proposed that Weinrich appear before the entire collective-bargain- ing unit and make the offer orally to the employees. Weinrich rejected this on the ground that he wanted to negotiate with the representative of the employees. How- ever, Weinrich suggested that Wolchok expand the bar- gaining committee to include more employees. When Wolchok stated that he would constitute the entire unit into the committee, Weinrich left to phone his colleagues to check whether he was obliged to bargain with such a committee, and then he returned and told Wolchok he would not now agree to bargain in that fashion but that he would look into it further. The meeting continued with a discussion of the effective date of the contract. At one point, Wolchok said that because Weinrich would not give an offer in writing, the parties were at impasse, but Weinrich said, "No, we can work it out." The par- ties also discussed union security and Wolchok stated that without a union shop no one would pay dues. Wein- rich told him that employees would still pay dues to the Union, especially if the Union worked hard to administer the contract. Finally, the meeting ended with no plans for a further meeting. I credit Weinrich's version of this meeting. c. The meeting of March 7, 1979 Wolchok testified that on March 1, 1979, the Union held an emergency meeting of all the employees to "ask them what they wanted to do." At this meeting, the em- ployees voiced their displeasure over the fact that they had received no increases since the election. According to Wolchok, the union representatives tried to explain the situation and they told the employees that the Union NASSAU INSURANCE CO. was locked in battle with lawyers who wanted to "beat down" the workers. Finally, a strike vote was conduct- ed. Wolchok testified that the strike was to be for better wages and working conditions and because the Employ- er had removed merit increases from the table. However, Wolchok's affidavit given to a Board agent states that at the March 1 meeting, he informed the employees that the Union was not able to get a final offer in writing and that the purpose of the strike was to protest the Employ- er's refusal to give such a final offer. The affidavit says, "The employees voted to strike if we did not receive a written, final offer by the next [meeting]." Weinrich testified that on Friday, March 2, Wolchok telephoned him and told him that the evening before the employees had voted to strike 1 week later unless the employer reinstated its offer of September 25 before the date. Weinrich then asked if Wolchok would accept an oral offer, and Wolchok replied that he would "but that, it better be the same offer as September the 25th."13 At this point, Weinrich informed Wolchok that he was scheduled for a vacation from March 3 to 10, and asked if the strike could be postponed until after the parties met on March 12. Wolchok refused, but stated that he had no objection to meeting with someone else from the law firm. After this conversation, Weinrich spoke with William Krupman, a senior partner in his law firm, and then called Wolchok back to request that the strike be postponed. However, Wolchok was adamant, and it was finally arranged that Krupman would attend the meeting which was scheduled for March 7. During this conversa- tion, Wolchok said that it was immaterial that Weinrich would be absent because all he wanted was someone to present a final offer. Weinrich replied that he wanted to negotiate and, based on the negotiations, to make an offer. Wolchok did not ask that all the unit employees be present at the negotiations. I find that Wolchok's affidavit is more reliable than his testimony herein. Therefore, I find that at the March 1 meeting Wolchok informed the employees about the Em- ployer's failure to give a written final offer and that the employees voted to strike if the Company did not give a written final offer at the next negotiating session and did not reinstate the September 25, 1978 offer. I find that when Wolchok spoke to Weinrich on March 2, 1979, he informed the latter that he would accept an oral offer but that it had better be identical to the unmodified Sep- tember 25, 1978 offer.14 Wolchok testified that at the last negotiation session, Nassau was represented by Krupman and Eisenberg. The Union had secured the presence of a court stenographer, as Wolchok put it, "in anticipation of receiving the final offer verbally from management." Wolchok stated that at this meeting he told Krupman that management had "pulled back" its final offer in September 1978, after it 13 Wolchok denied that he ever said he would accept an oral proposal However, although presented with the opportunity to do so, Wolchok did not deny that he said there would be a strike unless the employer reinstated the September 25, 1978 offer 14 It seems apparent that the Union brought the stenographer to the March 7 meeting because Wolchok had told Weinrich he would accept an oral offer If Wolchok had not agreed to an oral offer , there would have been no reason to engage a stenographer. 885 was submitted to the rank and file; however, Krupman "refused to participate in any form of negotiations or submissions of a final offer as long as someone was there transcribing the Company's final offer." Wolchok testi- fied that he suggested to Krupman that the stenographer leave during the discussions and return only at the time the final offer was being given, but Krupman refused saying that either the stenographer would leave or he would leave. Eventually, Krupman left. On cross-examination, Wolchok testified that the Union attended the meeting for the sole purpose of re- ceiving a final offer. He stated that at this meeting, Krupman pointed out that he had not been involved in the prior problems with the negotiations and that he was prepared to give a final offer orally. Krupman also said that he was willing to discuss the terms and negotiate, but Wolchok did not say the Union was willing to nego- tiate. "All we did was to want to get the final offer." 15 Wolchok acknowledged that he had at the previous session refused Weinrich's request to discuss an oral offer from the Employer because the Union wanted only a written final offer. Wolchok stated that the reason the final offer had to be in writing was that the employees had received no increases for almost 2 years and the Union wanted the employees to know exactly what they were being offered. Although Wolchok testified that had the Employer's attorney given the final offer orally for transcription by the court stenographer, it was his inten- tion to show it immediately to Krupman so that there would be no misunderstanding of the terms of the offer, Wolchok admitted that he was unaware of any facilities for typing the offer at the meeting. Bove testified that he, Wolchok, and the committee represented the Union at the meeting of March 7, along with a stenographer engaged to record the final offer. When Krupman arrived he inquired about the identity of the stenographer; Wolchok replied that the person was a court reporter and Krupman said, "I'm not making any statements that are going to be transcribed by anyone." Krupman stated that he was prepared to make a final offer verbally, but that he would not have it transcribed nor would he give it in writing. Wolchok insisted that he wanted Nassau's final offer in writing because he had had a "problem" with the law firm before and he insisted that the stenographer would remain in the room. Krup- man stated that he would file charges based on the Union's demand, but Wolchok insisted on his position. Finally, Krupman said there was nothing left to talk about, and the Employer's representatives left. On cross-examination, Bove stated that no notice had been given to the Nassau representatives that a stenogra- pher would be present at the negotiations. Bove testified 15 1 do not credit Wolchok's testimony that he suggested the stenogra- pher leave the room during negotiations and return only for the final offer First, no other witness testified to this offer, and Krupman denied that Wolchok made it Second, and most important, Wolchok clearly and repeatedly testified that he was at the March 7 session only to receive a final offer and not to negotiate Thus, I find his testimony that he offered to negotiate out of the presence of the stenographer incredible In fact, on cross-examination during the General Counsel's rebuttal case, Wol- chok stated that he had no intention of participating in negotiations at that time, and that "I did not say anything about negotiating " 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at this meeting Wolchok stated approximately three times that he was only there for one purpose, and that was to receive a final offer. Wolchok did not say "Let's negotiate," he said only "Let's have your final offer." Krupman testified that he attended the March 7, 1979 meeting as the representative of the Employer, along with Eisenberg.16 He had not previously attended any collective-bargaining sessions on behalf of Nassau, but Weinrich had briefed him orally and in a written memo- randum. Weinrich told Krupman that Wolchok expected a final offer and would accept it orally. In addition, Krupman looked at the files and met with DiLoreto to prepare for the meeting. DiLoreto authorized him to im- prove the last offer to conclude a contract. At the March 7 meeting, Wolchok was accompanied by Bove, Looney, and three employees. When Krupman and Eisenberg ar- rived, Krupman noticed a person with a stenotype ma- chine seated next to Wolchok. Krupman had had no ad- vance notice that a stenotype reporter would be present at the meeting. Wolchok told Krupman several times that the court reporter was there to take down the final offer and Krupman responded each time that he would not negotiate in front of a court reporter. Wolchok told Krupman that the Union's purpose in meeting was to get a final offer in writing. Krupman responded that he was there to negotiate and that ultimately he would try to give the Union a final offer, but that he would neither negotiate nor give a final offer in front of a court report- er. Krupman testified that although he repeatedly offered to negotiate and reach the point where he could make a final offer, Wolchok kept insisting that "a final offer in writing be given to him and the court reporter and the committee at that time." Krupman denied that anyone on the union side ever suggested on March 7 that the re- porter leave the room while the parties negotiated. He characterized Wolchok's testimony to this effect as "ab- solutely not true." Krupman testified that after about one-half hour of repeated exchanges as described above, he left the negotiations. On cross-examination, Krupman stated that he was not prepared to make a final offer until "we engaged in the give-and-take of negotiations." Krupman testified that Wolchok wanted the unmodified September 25, 1978 offer, but that he was not authorized to make that offer. However, he wanted to make a final offer and avoid a strike, and so he had an improved offer. d. Discussion and conclusions The General Counsel's argument, based on the facts recited above, is that Nassau unlawfully refused to give a final offer in writing and, on March 7, 1979, unlawfully refused to give the final offer orally in the presence of a stenographer. The General Counsel asserts that the facts in the instant case are to be distinguished from Bartlett- Collins because in this case the "court reporter was brought in for the limited purpose of recording the Em- ployer's final offer, and not for the purpose of recording, 16 Krupman gave concise, forthright, and direct answers and I find his testimony credible and reliable. and thereby inhibiting, the negotiation process itself." 17 The General Counsel asserts that spontaneity and flexi- bility were not required factors in the March 7 negotia- tions. Further, the General Counsel argues that in light of the alleged presettlement refusal to bargain and with- drawal of proposals by the Employer, the insistence on a reporter was not contrary to Board precedent. Finally, the General Counsel urges that representatives of the Employer had themselves suggested the use of a stenog- rapher to take the negotiation's minutes. Concerning this last point, the record shows that on June 28, 1978, Bove asked for a copy of the negotiation's notes being taken by Eisenberg. Weinrich refused, point- ing out that the Union had its own people taking notes at each session. However, Weinrich suggested that if Bove wanted the Employer's notes the Union could share the cost of a stenographer to record the sessions. The Union refused, and nothing ever came of this suggestion. I do not view this early exchange, which was a response to the Union's demand for the Employer's notes, and which was not insisted on by the Company, as having any bear- ing on the events of March 7, 1979. The General Counsel's argument that the Union's demand on March 7, 1979, that a stenographer be present was justified by alleged presettlement conduct must also be rejected. The earlier charges had been set- tled and the settlement agreement did not place the Em- ployer under any special disability or special conditions. The Employer was bound only to negotiate in good faith. The justification offered by the Union and the General Counsel for the necessity of a stenographer- that the background to the bargaining showed the Em- ployer had withdrawn proposals in the past-is inappo- site to the circumstances of the case. There is no factual dispute about the actual amounts contained in the Sep- tember 25, 1978 offer made by Frank and then modified. Frank freely testified that on the spur of the moment he made an unauthorized offer which he was later con- strained to modify. The presence of a stenographer would not guard against a repetition of this conduct sup- posing that the Employer's representatives were inclined to indulge in it again. There is no evidence in this case that the Union and the Employer disagree about what was actually offered on September 25, 1978, and it is that sort of disagreement which would arguably be addressed by the presence of a stenographer when the Employer gave its final offer in 1979. From my observation of the union witnesses at the trial and my reading of the record, I conclude that the real reason for the presence of the stenographer on March 7, 1979, was to shame the Em- ployer's representatives by reminding them of an embar- rassing occurrence. Indeed, the testimony clearly shows that the Union at each of the postsettlement negotiating sessions had been greatly concerned with expressing its i7 Bartlett-Collins, 237 NLRB 770, 773 ( 1978), enfd 639 F 2d 652 (10th Cir. 1981), held that a "demand for the presence of a court reporter during negotiations should be accorded the status of a nonmandatory subject of bargaining [and] Respondent, by insisting to impasse on the presence of a court reporter during negotiations as a precondition to such negotiations, violated Section 8(a)(5) and (1) of the Act " See also La- trobe Steel v NLRB, 630 F 2d 171 (3d Cir 1980) NASSAU INSURANCE CO. 887 I k emotional hostility to the Employer and its representa- tives. In fact, these recriminations took precedence over any desire on the part of the Union to engage in negotia- tions. This state of affairs was caused by the fact that the employees blamed the Union for a lack of progress and their failure to receive any raises since the start of the negotiations. Because I do not credit the testimony of Wolchok that Weinrich had promised to give an offer in writing, I do not find that the Employer was bound by any promise to give an offer in writing or in the alternative to have its oral offer transcribed by a stenographer. 18 Further, as stated above, I do not credit Wolchok's testimony that he offered to negotiate with the Company and exclude the stenographer from this part of the March 7, 1979 ses- sion. The circumstances, as they existed on March 7, 1979, were that the parties had executed a settlement agree- ment which bound them to negotiate in good faith, that the Union had appeared at all three meetings following the settlement demanding a final offer (if possible, the unmodified offer of September 25, 1978), and that the Union had refused to negotiate stating that its only pur- pose in attending the meeting was to receive the Compa- ny's final offer. At all three meetings the Company, rec- ognizing that its revised offer of September 27, 1978, would be unacceptable, had stated its intention to pre- pare new proposals, to negotiate, and to present a final offer. And the Union did not wish to negotiate : It only wished to reiterate the demand for a final offer. Under these circumstances, it cannot be found that the Compa- ny was not bargaining in good faith . The General Coun- sel's suggestion that the presence of a court reporter would not inhibit negotiations because the reporter would only record the final offer misses the central theme of the three 1979 negotiating sessions. The Union, although it was under a duty to negotiate, did not want to do so. It insisted on receiving a final offer without ne- gotiations. Any final offer given under such circum- stances must have been doomed to rejection unless it were incredibly generous . The Employer was justified in insisting on negotiations and discussions of its final offer. Nassau was entitled to try to convince the Union that its new proposal was fair and should be accepted. Although I twice asked counsel for the General Coun- sel whether it was his theory of the case that the Em- ployer's legal duty on March 7 , 1979, was only to present a final offer and not to discuss it or to negotiate, counsel did not answer this question at the trial, nor did he address the point in his brief. It seems clear to me, however, that the parties were under a duty to negotiate and that the Employer 's attempts were frustrated by the Union's refusal to negotiate and its insistence that it was only present to receive a final offer. Based on the foregoing discussion, I find that the Union's insistence on a stenographer's presence at the March 7, 1979 negotiations was an insistence on a non- mandatory subject of bargaining under the principle an- 18 The General Counsel does not argue that the Company would have been obligated to make a written economic offer absent the alleged prom- ise by Weinrich to do so nounced in Bartlett-Collins, supra. I thus conclude there is no merit in the allegation that the Company bargained in bad faith at the negotiations held after the execution of the settlement agreement. 3. The alleged refusal to bargain during the strike The General Counsel contends that Nassau 's failure to negotiate with the Union pursuant to its requests in March, April, and June 1979 is an unlawful refusal to bargain. The complaint does not allege this failure to bargain as an unfair labor practice, but the General Counsel's brief urges that The Employer's refusal to meet and continue to ne- gotiate . . . are additional violations of the Act. The General Counsel asserts that his motion that the proof be conformed to the pleadings be seen as efforts to state them as such, and further, that these matters were fully litigated in the instant hearing. The General Counsel also argues in the brief that if the strike was not an unfair labor practice strike at its incep- tion, then it became such a strike when the Employer re- fused to bargain with the Union during the course of the strike. Respondent Nassau urges that it has had no obligation to bargain with the Union since the beginning of the strike and that the certification of the Union should be revoked due to violence during the strike. At the very least, Nassau contends its duty to bargain was suspended during the strike due to the Union's violent acts . Nassau argues that the Union was pursuing extra-legal remedies through picket line misconduct and had so little regard for pursuing Board processes that it even failed to file an answer to the Board's complaint alleging violations of Section 8(b)(1)(A). Nassau further argues that the Union was attempting to drive a wedge between it and its duly designated representative for collective bargaining by dealing directly with DiLoreto. Nassau concludes that the Union had thereby breached its duty to bargain. Fi- nally, Nassau points out that the Union never withdrew its unlawful conditions to bargaining, and that the Em- ployer therefore had no obligation to meet with the Union. a. The union 's requests to bargain Wolchok testified that he tried to contact DiLoreto after the strike , which began on March 12, 1979, and that Weinrich returned the call but was unable to reach Wol- chok. When Wolchok later called Weinrich, the latter's secretary told him that Weinrich had more important things to worry about. Wolchok testified that on March 14 , 1979, the third day of the strike, the Union sent a mailgram to DiLoreto at his office in Jamaica which stated, "I hereby request that we meet on Friday to discuss the resolution of the current circumstance." Wolchok testified that he re- ceived no response . DiLoreto testified that he never re- ceived this mailgram. There is much credible evidence in the record showing that during the strike , and particular- ly at its inception, mail deliveries to the Company were 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not carried out and some mail went astray. In fact, wit- nesses testified to observing the strikers causing the mail truck to turn away without making mail deliveries. I find that the March 14 mailgram was not received by DiLor- eto. On April 24, 1979, Wolchok testified, he addressed a letter to DiLoreto at the Company's office in Jamaica that stated, in relevant part, "We are again renewing our request to meet with you to resolve the current labor dispute." On April 25 Wolchok wrote another letter to DiLor- eto that was generally devoted to informing DiLoreto of certain financial risks he was taking in the event he was found to be liable for backpay to unfair labor practice strikers. The letter requested "that there be immediate continuation of collective bargaining," and ended with the following admonition: "You are certainly taking a gamble, but then again its [sic] your money and not Jack- son, Lewis and Krupman's." Finally, on June 22, 1979, Wolchok wrote to DiLoreto saying that he was "open" to "discussions with respect to the issues involved in the current labor dispute." After the strike began, Weinrich testified, he was told by DiLoreto that Wolchok had telephoned him directly. Weinrich returned the call to Wolchok on March 14, 1979, and asked him why he had bypassed the Compa- ny's collective-bargaining representative. Wolchok re- fused to tell Weinrich what he wished to speak to Di- Loreto about, but suggested that he and Weinrich meet for an off-the-record discussion concerning Nassau in 15 minutes. During this conversation, Weinrich was paged and so told Wolchok he would consider the request and call back in 5 minutes. However, Weinrich became in- volved in a lengthy discussion on another matter; he asked his secretary to call Wolchok and inform him that an improtant matter had come up and that Weinrich would call Wolchok early the next week. The secretary reported to Weinrich that Wolchok said this was "fine." On March 20 or 21, Weinrich testified, he was ap- proaching the premises of Nassau when he saw Wolchok near the pickets. Wolchok asked him why he was not smiling, and there was no further conversation between the two. In July 1979, Weinrich saw Wolchok at the Board's offices in Newark, New Jersey, and Wolchok told Weinrich that "he was sure the Ayatollah Khomeini would take care of me and my ilk." This statement was made in response to a greeting by Weinrich. Weinrich spoke to Wolchok one more time, in January or Febru- ary 1980. During this conversation, Wolchok told Wein- rich that the only basis for "resolving the matter was that Nassau Insurance Company make the same offer to the Union as it did on September the 25th." Weinrich was asked why he had not responded to the Union's mailgram or letters. Concerning the mailgram, Weinrich asserted that neither his law firm nor the client employer had ever received it, nor were they aware of it before it was introduced at the trial. Concerning the let- ters, Weinrich testified that the letter dated April 24, 1979, was mailed to the client directly with no copy to the law firm. After he received a copy of the letter, Weinrich determined that there was no obligation to bar- gain because the strike was in furtherance of an unlawful bargaining position and because further unlawful conduct had taken place during the course of the strike. Weinrich did not respond to the letters of April 1979 because the unlawful bargaining position taken by the Union contin- ued, the picket line misconduct continued, and the let- ters, in his opinion, were coercive in that they misstated the law. Weinrich testified that he did not respond to the letter dated June 22, 1979, because of the Union's unlaw- ful bargaining positions and strike misconduct, and be- cause the letter was an attempt to bypass the Employer's authorized representative. Weinrich testified, in his opin- ion at the time, the strike misconduct had escalated to the point when not only was the bargaining relationship in a state of suspension, but there was no longer an obli- gation under the law to bargain. Wolchok testified that the Union's position during the 1979 negotiations and at the time of the strike vote was that it demanded a written final offer or a final offer made verbally by DiLoreto or his attorney to a meeting of all the employees.19 The Union has not changed its position on these conditions since the strike vote nor since the strike began, according to Wolchok. b. Conduct of the Union and its agents during the strike As set forth above, I have found that the Union and its agents made threats of violence and engaged in actual vi- olence against employees, supervisors, and their proper- ty, and sought to block ingress to and egress from Nassau. Nassau presented voluminous evidence of these acts to justify its failure to respond to the Union's re- quests for bargaining during the strike. I will set forth a summary of this evidence in this subsection. Additional- ly, certain details will be found below in subsection 4,c of the decision. DiLoreto testified that he received reports of union misconduct during the strike; further, individual employ- ees testified about incidents in which they were involved and which they had reported to DiLoreto during the strike. Jeanette Cuevas testified that she received several anonymous telephone calls threatening her with physical harm to her house and family if she worked during the strike. Iris Russo, a strike replacement, testified that two pickets whom she would not identify told her that her legs would be broken and her body would be found in the river. On this occasion, Union Agents Looney and McKay were present and standing with the pickets. On April 16, nonstriker Susan Socolov was knocked down and suffered a sprained ankle and her glasses were broken when she was chased to her bus stop by two un- identified strikers. Throughout the strike, nonstriking employee supervi- sors of Nassau often had their tires slashed. Jack Hausner, the no-fault claims manager of Nassau testified that beginning with the onset of the strike, his tires were repeatedly slashed with a sharp instrument. Hausner was one of the Nassau managers who daily drove nonstriking 16 In context, the term written final offer seems to include an oral offer dictated to a stenographer and transcribed into writing. NASSAU INSURANCE CO employees to and from work during the strike and Bove often called him a "scab driver." Nonstriker Iris Russo also found all four of her tires slashed on March 26, 1979. In addition, DiLoreto received reports from em- ployees Patricia Rooeny, Heather Ward, and Sylvia Reis that their tires had been slashed while their cars were parked near the Nassau premises during the strike. The incidents of egg throwing by strikers are too numerous to be detailed here .20 In addition, large roofing nails that had been individually inserted into squares of rubber cloth to make them stand erect were found scattered in the Nassau driveway and caused approximately 40 flat tires over the duration of the strike. Nonstriking employees Ida Krawatsky and Sylvia Smith awoke on different mornings during the strike to be greeted by shouts and chants from a group of strikers and Local 917 officials assembled outside their homes. The strikers yelled, "Come on out" and "We'll get you," and distributed handbills to their neighbors accusing the nonstrikers of being "scabs." DiLoreto and many other witnesses testified about conditions when nonstriking employees and supervisory staff attempted to enter and leave Nassau's premises during the strike. The parking lot used by Nassau, as well as by other tenants of the building in which Nassau is located, is adjacent to the office building on 164th Street. Each morning during the strike, the strikers would assemble, and as each car bearing nonstriking em- ployees arrived, would jeer and shout at the occu- pants.21 At lunch, if nonstriking employees appeared outside the building, they would also be greeted by shouts and calls. In the evening, when cars bearing non- striking employees attempted to leave the parking lot, the strikers would block the driveway, often for a period of 3 to 10 minutes, and would have to be cleared by pri- vate guards employed by Nassau or by officers of the New York City Police Department. It was not unusual for the evening departure of seven or eight cars to take up to one-half hour under these conditions. Although police barricades were erected on either side of the driveway in an attempt to prevent the strikers from blocking the driveway, the evidence shows that the pick- ets often did not respect the barricades and that they picketed in the driveway, halting the egress of cars. At these times the pickets jeered and shouted, pounded on the cars, and directed comments to their occupants. During the day, while nonstriking employees were at work, the picketing activity was less intense, although at various times the pickets continued marching on the side- walk outside the Nassau premises and chanting, often with the aid of megaphones, in an attempt to attract the attention of those inside the Nassau offices. The pickets would chant an employee's name and yell, "Come on out." On one occasion in April 1979, Weinrich testified that Josephine Bucchio was walking on the picket line 20 Eggs were thrown at nonstriking employees, at their cars, and at the cars of Nassau's supervisors The testimony shows that when eggs were seen flying through the air, they invariably came from the direction in which groups of strikers were congregating 21 During the strike, various supervisory employees picked up non- striking employees and drove them to work, and then drove them home in the evening 889 next to Bove and screaming through a megaphone, "Di- Loreto is a fuck," and "Dictator." DiLoreto testified that on these occasions Bove was the leader of the union efforts, and that Joe Looney and Langston McKay were often present. From the testimo- ny of Bove and McKay, it is clear that it was their re- sponsibility to organize the picketing and instruct the pickets concerning the method of picketing. During the strike, the picketers on occasion prevented the delivery of mail and supplies to Nassau, and prevent- ed servicemen from making repair calls. On March 13, 1979, the pickets physically prevented a service van of the Kerner Company from entering the parking lot to service the Nassau heating system. After the New York City police intervened, the truck entered the lot. During this confrontation, Bove told the serviceman that he could not cross the picket line and that there would be no service to the building. On this occasion, Bove told DiLoreto that he would close down his business and put Nassau out of business. Around the same time, the Wilson Freight Company advised DiLoreto that it was unable to effect deliveries at Nassau because of the pick- ets. Several times during the strike, the locks on the doors of the Nassau premises were cemented shut with glue and had to be removed and replaced. On the weekend of April 8, 1979, the telephone pole supplying service to the Nassau premises was set on fire by a method determined by the fire department to involve rags soaked in a flam- mable substance. Also during the strike, employees inside the Nassau offices during working hours noticed a fire outside the building; on inspection some shrubbery plant- ed against the wall was found to be burning, and a pie plate with rags soaked in a liquid were found at the base of the bushes. A number of strikers was standing nearby together with Union Agents Bove and Looney, when the fire was observed. Weinrich testified that he had personally observed mis- conduct by the picketing employees. During the strike, Weinrich was present at the Nassau premises on a day when a Board agent was there, and he saw Andrew Bove and Joe Looney standing near the front door when two women whom Weinrich had previously observed on the picket line approach the front door and throw into the glass-enclosed lobby a large number of firecrackers that exploded in the lobby. The lobby furnishings were damaged by this explosion. Sheldon Blume, vice president of the Nassau Insurance Company, testified that in late April 1979, after the com- mencement of the strike, he called the home of Audrey Callahan, a striking employee, to speak to her husband about some business dealings in which they had been en- gaged.22 Mr. Callahan was not home, and Mrs. Callahan and Blume talked. Callahan asked how the Company was functioning during the strike. She then told Blume, "You better be careful." When the latter asked why, Cal- lahan replied, "They are going to set fire to your place." Blume asked whether she meant the strikers or the 22 Blume testified in a very careful, forthright manner He gave direct, helpful answers on cross-examination and I credit his testimony 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and she replied, "Just be careful." The next day, Blume called Callahan back and pointed out to her that name calling on the picket line was "minor," but that a fire was "criminal" and might involve loss of life or injury. He asked her for more information, but Callahan would not provide anything further, saying she did not want to discuss it . This conversation took place after the two fires described above, but before the firecracker ex- plosion. Callahan testified and she denied referring to the possibility of fires in her conversation with Blume. How- ever, I do not credit her recollection because she did not remember much about the strike and repeatedly sought to avoid answering questions on cross-examination. Roy Slamow, vice president of Nassau in charge of legal claims, testified that right after the fire occurred at the Nassau telephone pole interrupting all telephone service, both Bove and Looney taunted him with re- marks such as "Now try to do your business," "Go ahead, make your calls, go ahead wise guy," and "Go see if you can work." As they spoke, the two union agents pointed to the burned telephone pole. Slamow testified that during one lunch hour in June 1979, he observed a man with a camera standing 1 or 2 feet inside the Nassau parking lot and taking pictures. Nonstriking employees were in the parking lot at the time and the pickets were yelling things like, "We know who you are, we have pictures of you." Some of these employees approached Slamow and expressed concern at having their pictures taken, and Slamow then walked over to the man with the camera and, pointing his finger, asked, "What are you doing here?" Slamow saw Bove, who had been standing nearby, coming toward him and about to direct a blow at his head. Slamow raised his arm to deflect Bove's blow and he was hit on the upper- arm and bruised. At that point Bove began yelling, "He's hitting him, he's beating him up," and "Help, get over here." Slamow did not strike Bove or the cameraman. Guards and some nonstriking employees rushed up to Slamow, and one of the employees informed him that the photographer was the husband of a striking employee. In my view, this incident was an attempt by Bove to manu- facture a provocative incident during the strike. I do not credit any of Bove's testimony concerning this incident that contradicts Slamow's version. On another occasion during the strike, Slamow was driving a number of nonstriking employees home after work when his car was surrounded by a number of strik- ing employees and union officials, one of whom scratched the length of Slamow's car with a sharp object. Slamow believed the employee was Ray Sickles. Slamow stopped the car and started to get out, but the guards dissuaded him. Then Slamow said to Sickles, as the latter walked away, "I'll blow you away," where- upon Bove began to shout, "He's got a gun, he's gonna shoot every body." Slamow testified that he did not have a gun and had never carried a gun. Despite suggestions from various witnesses that they had heard that Slamow had once carried a gun , I find that Slamow never carried a gun and has never owned a gun. Slamow testified that in his view Sickles was effeminate and "light on his feet ... flittering around," and that he meant by "blow away" that Sickles would float away. On May 11, 1979, around 9 a.m., DiLoreto observed Looney knock down the two police barricades that were customarily placed on either side of the Nassau driveway in an attempt to prevent the pickets from blocking in- gress of cars bearing nonstriking employees. DiLoreto and one of the private guards went over to replace the barricade and they succeeded in doing so despite the fact that Looney kicked and shoved the barricade while Di- Loreto and the guard held it in place. Shortly after this, Union Agent Langston McKay drove up and spoke to Looney. Then, McKay removed his jacket, handed it to a striker standing nearby and, charging toward DiLor- eto, said, "We know how to take care of guys like you, I'm going to beat the shit out of you." While saying this, McKay raised his fists and, as he came closer to the bar- ricade, kicked violently at it. DiLoreto stood his ground and eventually McKay desisted. A number of striking employees witnessed this scene. Although McKay denied threatening DiLoreto, I do not credit his version of the events because it is implausible and internally inconsist- ent.23 On May 31, 1979, DiLoreto observed that a Local 917 picket sign had been hung on a tree outside the Nassau premises. He testified, fearing damage to the tree, he went over and removed the sign, placing it on the ground next to the tree. Looney rushed over to him and said, "The next time you do a thing like that, I'll break your arm." Looney did not testify in the instant proceed- ing. A number of striking employees witnessed this scene. On June 7, 1979, DiLoreto testified, as he was crossing the street going towards the Nassau premises, McKay walked toward him and said, "I'm going to get you, you think you're safe, but I'll get you, if not today, tomor- row." A number of striking employees were present at that time. On June 11, 1979, in front of the Nassau premises, McKay threatened to hit DiLoreto with eggs and, making a fist and flexing his arm, McKay told DiLoreto to "stop coming here." McKay said this as he advanced toward DiLoreto pointing his fist at him. A number of striking employees were present and witnessed this scene. c. Conclusions The principle has been clearly established that when a union engages in serious misconduct involving physical violence the employer need not bargain with the union until it has assurances that the misconduct will not be re- peated.24 In the cited case, the union had violated Sec- tion 8(b)(1)(A) by threatening physical violence at the negotiations, committing physical violence on a supervi- sor and an employee, and threatening to knock down the company gates by force. In the instant case, the allega- tions of 8(b)(1)(A) violations in Case 29-CB-3760 that the Union threatened and committed acts of violence are 23 McKay did not strike me as a reliable witness He was extremely evasive on cross-examination and, instead of replying directly to the ques- tions posed to him, he sought to justify all his answers and actions 24 Union Nacional de Trabajadores, 219 NLRB 862 (1975), enfd as modified 450 F 2d 1 (1st Cir 1976), cert denied 429 US 1039 (1977) NASSAU INSURANCE CO deemed admitted. Further, the many witnesses who testi- fied in the course of the lengthy trial testified to inci- dents involving unprovoked violence and physical injury and property damage, as well as threats to employees and supervisors of Nassau. These acts occurred through- out the strike and the Company had received no assur- ance at the time of the Union's requests to negotiate that the misconduct would cease. Therefore, I find that the Company's failure to negotiate in response to the Union's requests in the spring of 1979 did not constitute a viola- tion of Section 8(a)(5) of the Act. It follows that I do not find that any refusal to bargain affected the nature of the strike begun on March 12, 1979. It would not be appropriate, however, to revoke the Union's certification. That penalty has been imposed in a case when the Union has engaged not only in physical violence in connection with a dispute with one employ- er, but has also demonstrated an "extensive record of similar aggravated misconduct in other recent cases."25 The misconduct of Local 917 in the instant case does not rise to the level of violence described in Union National nor is there any evidence that Local 917 has engaged in similar misconduct in other labor disputes. Thus, there is insufficient basis for revoking the certification. 4. The alleged refusal to reinstate the striking employees On September 3, 1979, Wolchok sent a mailgram to Nassau stating that "all your employees presently on strike have agreed to return to work unconditionally as of September 5, 1979." On September 5 a number of union officials and strikers assembled in the lobby at Nassau at 9 a.m., but none of the striking employees was reinstated at that time. The complaint alleges that Nassau unlawfully denied resinstatement to 35 named striking employees. a. The objective of the strike The complaint alleges that by its unfair labor practices, Nassau caused and provoked the strike that began on March 12, 1979. Because I have found above that the Employer committed no unfair labor practices after exe- cution of the December 29, 1979 settlement agreement, I do not find that the strike was in fact an unfair labor practice strike. The General Counsel contends, in the alternative, that the strike was an economic strike and that the striking employees therefore enjoyed certain rights to reinstate- ment.26 The Company contends that the strike is an unprotect- ed strike in furtherance of the Union's unlawful bargain- ing position . The Company asserts that the Union never withdrew its insistence that the final offer be in writing or made to a stenographer, or that it be made to all the unit employees, not that the final offer should be identi- cal to the one made on September 25, 1978. Therefore, Nassau concludes it had no duty to reinstate the strikers. 25 Union National, supra, 219 NLRB at 863 (1975) 26 See NLRB Y Fleetwood Trailer Co, 389 U S 375 (1967) 891 All the testimony shows that Wolchok was the union leader responsible for conducting the postsettlement ne- gotiations. Further, Wolchok's testimony and affidavit show that he communicated with Weinrich after the strike vote was taken and that he stated that a strike would occur unless the Employer gave a written final offer. Wolchok testified that the strike was for a specific purpose and that the Union has not changed its position concerning that purpose. Thus, it is clear that the strike was called because the Employer did not present a writ- ten final offer of economic terms, or read its offer to a stenographer-a mechanism for obtaining a written offer. It seems also that the Employer's refusal to give the Sep- tember 25 offer may have played some part as well as the refusal to have DiLoreto or Weinrich give the offer to all the assembled employees, although the General Counsel has not alleged that these last two factors were the cause of the strike nor that they constituted unlawful refusals to bargain by the Employer. To the extent that the strike was called to enforce the Union's demand for a final economic offer in writing or made in the presence of a stenographer, I have already found above that such a demand was not a mandatory subject of bargaining. Further, to the extent that the strike was called to enforce a demand that an offer be made to all the unit employees or that the unmodified offer of September 25, 1978, be repeated, the General Counsel does not allege that these are mandatory sub- jects of bargaining and I do not find that either of these demands is a mandatory subject of bargaining. Thus, the strike was called to support the Union's demands for nonmandatory subjects of bargaining. In Borg-Warner Corp., 356 U.S. 342 (1958), the Court held that it was unlawful to condition the reaching of a collective-bargaining agreement on the other party's ac- quiescence in a matter that is not a mandatory subject of bargaining. The Court affirmed the decision of the Board that held that one party's insistence on a subject outside the scope of mandatory bargaining against the permissi- ble opposition of the other party amounted to an unlaw- ful refusal to bargain. The Court pointed out that while the parties might voluntarily and lawfully agree to cer- tain matters which were not mandatory subjects of bar- gaining, the nonmandatory subjects could not be insisted on as a condition to any agreement. Thus, the Court con- cluded, it is "unlawful to insist upon matters without [the scope of mandatory bargaining]." 356 U.S at 351. In the instant case, the Union has insisted on matters without the scope of mandatory collective bargining and has engaged in a strike to enforce its unlawful demands. A strike called to enforce a party's insistence on unlaw- ful demands is an unprotected strike.27 Recently, the Board has held that a strike called to enforce a demand that a nonbargaining unit employee who was not per- 27 NLRB v Ford Radio & Mica Corp, 258 F 2d 457 (2d Cir 1958) (walkout to influence choice of supervisors is unprotected), Rogate Indus- tries, 246 NLRB 898 (1979) (strike over benefits and conditions in the face of a no-strike clause is unprotected) See also Teamsters Local 707 (Claremont Polychemical), 196 NLRB 613 (1972), American Rubber Prod- ucts Corp v NLRB, 214 F 2d 47 (7th Or 1954), and Fontaine Converting Works, 77 NLRB 1386 (1948) 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forming unit work should leave the jobsite was an unpro- tected strike; the discharge of the striking employees was held not to violate Section 8(a)(1) and (3).28 The Board affirmed the decision of the judge that stated, "By walk- ing out, the employees were not . . . engaged in protect- ed Section 7 activity for the purpose of mutual aid or protection." 230 NLRB at 462. Although some employees testified at the instant trial that they were striking, inter alia, for better wages and working conditions, this does not affect my finding con- cerning the unprotected nature of the strike. "The fact that one of the objectives of the strike was lawful does not, in any way, diminish the fact that the other objec- tive was unlawful."29 Having found that the strike of the employees at the Nassau Insurance Company was unprotected, it follows that the striking employees had no rights to reinstate- ment; therefore the allegations of the complaint dealing with the failure to offer reinstatement to certain strikers must be dismissed. Throughout his case in chief, the General Counsel maintained that the strikers had been discriminated against as unfair labor practice strikers; there was no mention of an alleged economic strike or economic strik- ers; and the General Counsel presented no evidence to show that any job vacancies existed at Nassau on or after September 5, 1979, to which economic strikers should have had priority. In fact, the General Counsel objected to questions which, in his words, sought to buttress Nas- sau's contention that the strike was not "the ULP strike alleged in the complaint." The complaint is clearly drawn to contain only allegations of an unfair labor prac- tice strike and failure to reinstate unfair labor practice strikers. It was only during presentation of Respondent's case, that the General Counsel mentioned for the first time her position that an allegation that the strikers had engaged in an economic strike and had been discriminat- ed against as economic strikers was "inherent" in the complaint. Respondent urges strongly that any consideration of the issue of an alleged economic strike would deny Re- spondent due process and a fair hearing.30 In view of my finding that the strike was unprotected, I need not consider this issue. Should the Board nevertheless deter- mine that the economic strike issue is properly before it, those strikers who were not offered reinstatement and who did not engage in misconduct may have their rights determined in a compliance proceeding. However, not all the strikers would be entitled to reinstatement even if the strike were not found to be unprotected as will be seen in the next two subsections of this decision. 28 Harger Mine #1, 230 NLRB 461 (1977) 29 United Mine Workers (Amax), 238 NLRB 1583, 1587 (1978), enfd as modified 614 F.2d 872 (3d Cir 1980). so See Amax Coal Co. v NLRB, 614 F.2d 872, 884-885 (3d Cir 1980), IPCO Hospital Supply Corp, 255 NLRB 819 (1981), NLRB v. Pepsi-Cola Bottling Co., 613 F.2d 267 (10th Cir 1980) b. Status of certain individual employees The complaint alleges that Respondent unlawfully denied reinstatement to 35 striking employees.31 At the hearing the following six named employees failed to appear in response to subpoenas ad testificandum and their names were striken from the complaint without op- position from the General Counsel: Riga Fabrizzi, Claire Hillenbrand, Roselyn Hanley, Helga Prosser, Madeleine Turrin, and Ruth Williams. Furthermore, it appears that the following striking employees have been reemployed by Respondent and there is no evidence in the record that they were denied any reinstatement rights to which they may have been entitled: Helene Bertino, Linda Bo- chilo, Mary Boord, Eillen Bulger, Frances Calamia, Jo- sette Campbell, Dorothy Diaz, Marysi Morisset, Grace Penman, Jane Planes, Helen Portnoy, Johanna Reisert, and Raymond Sickles. The Company also offered rein- statement to the following named employees: Sandra Atwell, Anna Bucchio, Audrey Callahan, and Patricia Escribano. For various reasons, these strikers were not reemployed. In view of my finding that they were en- gaged in an unprotected strike, I need not determine the issues relating to the failure of Respondent to reemploy these strikers: if it becomes necessary to resolve these issues, they may be determined in a compliance hearing. Marsha Siegel, who was at home when the strike began and was recovering from a massive heart attack suffered in October 1978, claimed that she remained an employee of Respondent and participated in the strike. She testified that on April 14, 1979, she called Nassau and told Bertha Sedita, DiLoreto's secretary, that she wished to return to work. A few days later, having re- ceived no response, she drove to the Nassau premises and observed the picket line; then, she testified, "I re- fused to pass the picket line and stayed with the picket line." However, the credible testimony of John Tafuro, treasurer of Nassau, and of Sedita establishes that in late 1978 and early 1979, a man identifying himself as Siegel's husband called the Company and stated that Siegel was recovering slowly and was soon to leave for Florida. In January, the Company was advised that Siegel would not return to work and she was then dropped from the payroll. Sedita denied that Siegel had ever spoken to her about returning to work. I credit Sedita's testimony. The record establishes that DiLoreto was eager for all his employees to return to work at the beginning of the strike and, if Siegel's call had indeed been made, there is no reason for Siegel's offer not to have been accepted with alacrity.32 Siegel did not deny that her husband had made the calls described above, and her husband was not called to testify. Therefore, I find that Respond- ent was justified in believing that Siegel had ceased to be 31 The complaint names the following strikers S Atwell, H Bertino, L Bochilo, M Boord, A Bucchio, J Bucchio, E Bulger, F Calamia, A Callahan, J Campbell, B Cohen, A De Paulis, D. Diaz, P Escribano, R. Rabnzzi, R Hanley, C Hillenbrand, R Kortoon, D Mack, M Mornsset, A. Murray, M. Oleska, G Penman, C Peters, J Planes, H Portnoy, H Prosser, J Reisert, S Rudin, M Schnetzer, R Sickles, M Siegel, M Turnn, R Williams, and B Wunner 33 The record shows that a number of employees abandoned the strike after a few weeks and were returned to their jobs NASSAU INSURANCE CO. an employee of Nassau long before the strike began and long before the Union's offer to return to work was made on September 5, 1979. c. Alleged acts ofserious misconduct Of the remaining employees, Respondent Nassau con- tends that many of them engaged in unprotected acts of violence during the strike that rendered them unfit for reinstatement. The record shows that many of the acts relied on with respect to individual strikers were isolated or minor and would not be grounds for denying rein- statement to the employees had they been engaged in a protected strike.33 However, I find that two employees did engage in a number of serious and unprotected acts during the trike, which, taken together, would debar them from reinstatement even if the strike were found to be protected. The Board has recently summarized the rule applica- ble when an employer disciplines an employee for strike misconduct.34 An employer may defend its action by showing that it had an honest belief that the employee disciplined was guilty of strike misconduct of a serious nature. If the employer is able to establish such a defense, then the General Counsel must come forward with evidence that either the employee did not engage in the conduct asserted, or that such conduct was pro- tected. The burden then shifts back to the employer to rebut such evidence. [See generally NLRB v. Burnup & Sims, 379 U.S. 21 (1964).] The Board added that "an employer may premise its belief of striker misconduct on reports from its guards and other written reports." The decisions of the Board and the courts have used as a point of departure the caution of the Supreme Court that a distinction must be drawn between "a trivial rough incident or a moment of animal exuberance" and violent picketing that involves the use of force. Milk Wagon Drivers Union v. Meadow-Moor Dairies, 312 U.S. 287 (1941). The distinction has not always proved easy to draw, however, and each alleged act of picketing mis- conduct must be considered in light of all the surround- ing circumstances. Respondent presented the testimony of various wit- nesses to show that striking employee Josephine Buc- chio, a keypunch operator, had engaged in unprotected activities during the strike.35 DiLoreto testified that on 33 It should be remembered that many acts of serious misconduct, both against nonstriking employees and against their property and that of the Employer, could not be ascribed to individual strikers, although, the complaint in Case 29-CB-3760 being deemed admitted, the misconduct must be ascribed to the Union and its agents In some cases, replacement employees could not identify the strikers who molested them In other cases, property damage was done by unknown persons 34 General Telephone Co, 251 NLRB 737 (1980) 35 Bucchio generally denied or offered explanations for all the conduct of which she was accused However, Bucchto could not remember accu- rately or in detail many of the episodes about which she was questioned, and her testimony often conflicted with that of other, credible witnesses Therefore, I will not credit her denials when they are contradicted by other more reliable testimony 893 March 13, 1979, a truckdriver attempting to deliver sup- plies to Nassau was dissuaded from crossing the picket line by the striking employees. The truckdriver unloaded the boxes of supplies across the street from Nassau, and several managerial employees of Nassau went over with handtrucks to collect the supplies. At that point Jose- phine Bucchio and another striker, Betty Cohen, knocked the supplies off the trucks with their hands so that they fell to the ground. DiLoreto testified that at the beginning of the strike he received a report from Andrew Buckley , manager of electronic data processing, that all of a certain type of program card used in the Company's computerized rec- ordkeeping operations were missing from their usual lo- cation.36 Josephine Bucchio had access to these cards. Bucchio acknowledged taking 20 or 25 cards, for which she admittedly had no use, but claimed that it was an in- dustry practice for keypunch operators to take program cards when they left a job. Buckley, a veteran in the computer field, denied any such industry practice.37 The Company could not function on a daily basis without its program cards, and Buckley had to reformulate all of them and punch them out. Buckley testified that from 50 to 100 cards were missing. Toby Weil, an attorney admitted to practice in the State of New York, testified that his offices are located in the same building as those of Nassau. In April 1979, Weil was walking to the parking lot near Nassau when he observed Jack Hausner, no-fault claims manager of Nassau, driving some nonstriking employees out of the lot in his gold-colored car. Weil observed Josephine Buc- chio with an aerosol paint canister in her hand, and he saw her spray dark paint along the side of Hausner's car. At that point, another striker said, "Nice job, Josy." The next day, Weil informed Hausner of the incident and the two men observed the dry paint on Hausner's car. Weil reported the incident to the police, and Hausner filed charges against Bucchio. Weil subsequently appeared as a witness in criminal court, Queens County, where Buc- chio was granted an adjournment in contemplation of di- missal of the charges against her on condition that she make restitution to Hausner. There was much testimony that Josephine Bucchio ad- dressed racial and religious epithets and slurs at nonstrik- ing employees without any provocation. Sheldon Blume, vice president of Nassau, observed Bucchio using a meg- aphone to yell at a black nonstriking employee who was seated in a car, that she should "go back to Africa," and that she was a "monkey." 38 Jeanette Cuevas testified that during the strike Josephine Bucchio often screamed at her through the megaphone calling her a "spic" and other offensive racial epithets.39 Bucchio also made ob- 36 All the incidents described were related to DiLoreto during the strike and formed the basis of his belief that Bucchio engaged in acts of serious misconduct 37 Buckley was a forthright , cooperative witness and I credit his testi- mony 38 Blume was a thoughtful and forthright witness who answered coop- eratively on cross-examination I credit his testimony. 31 Cuevas was a forthright witness who gave complete answers on cross-examination I credit her testimony 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scene sexual remarks about Cuevas concerning her person and habits.40 Himaty Seegobin testified that Jose- phine Bucchio called her "kemo sabi" on just about every occasion that Seegobin appeared outside the Nassau offices during the strike.41 Seegobin testified that Bucchio made obscene gestures to a black employee called Elaina, used obscene language, and told her she looked like a monkey. Seegobin heard Bucchio yell through the megaphone that Cuevas "was fucking all the men in the office." Victoria Schwartz testified that on many occasions as she entered and exited the Nassau premises, Josephine Bucchio called her a "Jewish hooker."42 Although there was some suggestion that Schwartz had once called Bucchio an unflattering name, I credit Schwartz' testimony that she did not speak to Bucchio during the strike and did not call her any names. Joseph Sleckman, supervisor on no-fault for Nassau, testified that he drove a nonstriking employee named Myrtle Ericcson to work during the strike.43 Ericcson had a problem with her legs and used a cane. Sleckman testified that as Ericcson emerged from his car he heard Josephine Bucchio yell, "Hey Myrtle, you got a broken leg? Let's see if we can't break the other one." Bucchio continued with these remarks shouted through a megaphone every morning as Sleckman drove Ericcson to work, telling the latter that her leg would be broken so that she could not go to work and calling her a "whore, motherfucker, and the like." Sleckman testified that Josephine Bucchio and certain other striking employees rocked his car, a lightweight Ford Maverick, on one occasion when he was attempt- ing to leave the parking lot. The strikers put their hands on the windshield, blocking his vision, and sat on the fenders. Then they rocked the car by pushing it from side to side.44 On several occasions while his car was in motion on the public thoroughfare, eggs were thrown on the windshield obstructing his vision so that he had to stop the vehicle, but Sleckman could not say who threw the eggs. Based on the foregoing, I find that Josephine Bucchio engaged in a number of unprotected acts during the strike that constituted serious misconduct: knocking down supplies that were being delivered to Nassau in an attempt to prevent the Company from conducting its business, and stealing program cards from the Company in order to sabotage its computer operations;46 repeated- ly threatening to break Ericcson's leg;46 damaging Hausner's car as he was driving nonstriking employees home after work in an attempt to discourage these em- ployees from working during the strike;47 and rocking 90 These contain scandalous and offensively detailed remarks that I do not wish to record here. 4i Seegobin , a native of Trinidad, is of Indian parentage . She gave forthright , complete answers, and I credit her testimony. 42 Schwartz testified in a careful , concise, and precise manner She an- swered fully on cross-examination , and I credit her testimony 48 Sleckman testified in a credible manner, doing his best to give com- plete and helpful answers I will credit his testimony 44 According to Sleckman, Union Official Joseph Looney stood by and encouraged this activity 48 Ohio Power Co., 216 NLRB 348 (1975) 48 Mosher Steel Co, 226 NLRB 1163 (1976), enfd. in part 568 F 2d 436 (5th Cir 1978) 47 NLRB Y. Hartmann Luggage Co, 453 F.2d 178 (6th Cir 1971) Sleckman's car as he was attempting to drive nonstriking employees home after work in an attempt to discourage nonstrikers from working during the strike.48 Finally there is the matter of Bucchio's use of racial and reli- gious epithets during the strike. First, I note that the strike was not provoked by any serious unfair labor prac- tices on the part of the Employer nor was it shown that any of the epithets were provoked by words or actions of DiLoreto or his employees.49 Thus, Bucchio hurled scurrilous racial, religious , and sexual remarks at non- striking employees solely for the reason that they de- clined to participate in the strike. Although the use of obscene language during a strike is often excused, the use of racial and religious epithets that have a direct, person- al effect on the person thus attacked have not been per- mitted.50 Such personal attacks can reasonably be ex- pected to have a more lasting traumatic effect and are unlikely to be forgotten or forgiven after the strike is over, thus leading to potentially disruptive conditions in the workplace if the offender were to be returned to her job.5 t It is important to recall as well that Nassau is not a rough and ready factory or shop where even highly of- fensive language might be viewed as common "shop talk." Rather, the record shows that the ambience in the office was quiet and business-like and that obscenities and epithets were not heard there. To sum up, I find that DiLoreto had an honest belief that Bucchio engaged in serious misconduct and I find that the General Counsel did not show that Bucchio did not engage in the misconduct. DiLoreto testified that striking employee Betty Cohen knocked office supplies off the handtrucks in the incident described above. Buckley testified that one day when he was escorting nonstriker Sylvia Klein out of the compa- ny premises, Cohen rushed up to her and said, "If you don't stay home where you belong, I'll break both your legs." This incident occurred on June 12, 1979. Non- striker Marianne Caffrey testified that one day in April 1979, as she was leaving work, accompanied by John Tafuro and two other employees, Cohen called out that Tafuro should hold the employees' hands.52 According to Caffrey, when she turned around to look at Cohen, the latter said, "If I was so brave to look at her, why didn't I come out of the building by myself, and that if John Tafuro wasn't with me, they would get me at my bus stop." Cuevas testified that Cohen called her a "spic" and made fun of her for reading an English-language newspa- per. Cohen made obscene sexual references to Cuevas and her fiance. Seegobin testified that Cohen, observing that Seebogin had sought out two nearby police officers 48 Rocking a car full of passengers while it is attempting to leave a driveway and enter traffic is potentially a very dangerous practice and is calculated to instill a fear of physical harm in nonstrikers Alkahn Silk Label Co, 193 NLRB 167 (1971). 49 See NLRB v Thayer Co, 213 F 2d 748 (1st Cir 1954) 50 Old Town Shoe Co, 91 NLRB 240 (1950) 01 Indeed, as each witness was forced to repeat the epithets that had been used to her, my observation was that the memory of the hurt was as vivid as the day on which it was first inflicted. Bz Caffrey testified in an earnest, forthright, and complete manner. I credit her testimony k NASSAU INSURANCE CO. to escort her to work after she was chased by some strik- ers, yelled to Seegobin that she was a fool and that Cohen would follow her home when the officers were not there to protect her. Cohen often threatened to "get" Seegobin, and when Seegovin asked why, Cohen said, "You are crossing the picket line and we are going to get you." Cohen also told Seegobin, "When I follow you home you will know why I am threatening you." Seego- bin saw Cohen throw an egg which splattered on a car belonging to Steve Yockel, an employee of Nassau. Vic- toria Schwartz testified that Cohen usually greeted her when she came to work during the strike with cries of "Jewish hooker."53 Margaret Schnetzer testified that she saw Betty Cohen throw an egg that landed very close to nonstriking employee Janet Panaciulli and that seemed to be directed at Panaciulli.54 DiLoreto received reports of all these incidents from the nonstriking employees of Nassau. Cohen denied engaging in the conduct detailed above and she denied all the other acts alleged by Respond- ent.55 However, I do not credit Cohen's testimony. Cohen testified in an extremely hostile and partisan manner. Even on direct questioning by the General Counsel, she could not restrain herself from volunteer- ing, and she had to be cautioned several times to keep her answers to the point and cease adding irrelevant in- formation that she considered derogatory to Respondent. Her testimony was internally inconsistent and implausi- ble, and it conflicted with the testimony of many other credible witnesses. The record leads me to the conclu- sion that she would recklessly testify to any fact without regard to its accuracy as long as it might be harmful to Nassau. Based on the foregoing discussion, I find that Betty Cohen engaged in the following unprotected serious acts of misconduct while she was on strike: threatening physi- cal harm to Klein, Caffrey, and Seegoblin;56 voicing reli- gious and ethnic insults to Cuevas and Schwartz,57 throwing eggs at Yockel's car and at Panaciulli,58 and attempting to prevent delivery of supplies to Nassau.59 I find that DiLoreto had an honest belief that Cohen en- gaged in various acts of misconduct; I further find that the General Counsel has not shown that Cohen did not engage in these acts of misconduct. 5. The alleged threat to fire strikers The General Counsel alleges that about March 8, 1979, the Company threatened Anna Bucchio with discharge if as Cohen is non-Jewish as Schnetzer impressed me as a direct and truthful witness She an- swered carefully and fully on direct and cross examination , and I credit her testimony as I do not set those acts forth because those allegations are not as sen- ous as the conduct described in detail ae In the context of the strike when the strikers daily engaged in physi- cal acts such as pounding on cars, blocking the parking lot exit, chasing nonstrikers, and when the strikers occasionally picketed and chanted at nonstrikers' homes, verbal threats of physical harm could reasonably be expected to intimidate nonstrikers by instilling a fear of physical harm Mosher, supra, Laredo Coca-Cola Bottling Co, 258 NLRB 491 (1981) as Old Town Shoe Co, supra 58 Castle-Pierce Printing Co, 251 NLRB 1293 (1980) a8 Ohio Power Co, supra 895 she went out on strike with the Union. Bucchio, a col- lege student, began work for Nassau in January 1979, as a part-time secretary to Vice President Roy Slamow. Slamow liked her work and they had a pleasant relation- ship. About 4:30 p.m. on Thursday, March 8, 1979, Buc- chio's last regularly scheduled workday before the strike, Slamow spoke to her and inquired whether she had heard rumors there would be a strike and whether she intended to work during the strike. Bucchio had heard the rumors and she replied that she was not sure whether she would report to work. Bucchio's testimony about what happened next is inconsistent. At first she testified that Slamow told her she would "lose her job" if she did not come to work because she was a part-timer and not covered by the Union; he said that he liked her but that her work "had to be done," and that he had a list of names of people whom he could call to "replace" her. On cross-examination, Bucchio testified that Slamow said if she did not work during the strike she would be "in jeopardy" of losing her job. Bucchio stated that Slamow was concerned about getting his work done and arrang- ing his schedule. He told Bucchio that if she did not come in he "could replace" her and "would have to get someone else to take [her] place." According to Buc- chio's testimony on cross-examination, she asked, "Does that mean I'm fired and he said, yes." Later, on further cross-examination, Bucchio changed her testimony to say that Slamow had not told her she had no right to strike and could be fired because she was a part-timer, but that Slamow had told her she was not "covered by the Union" because she was a part-timer. Finally, when ex- amined on redirect by the General Counsel, Bucchio again testified that Slamow told her that "if I went on strike I would lose my job because I was a part timer." Slamow testified that a few days before the strike as he was looking over the workload in his office, he asked Bucchio if she would be working during the strike.so Bucchio said she did not know and Slamow said, "I didn't think it really concerned her, she was part-time and I would like to have her come in if she was avail- able." According to Slamow, Bucchio told him her mother was involved with the Union and "she'd see." Slamow told Bucchio he had a list of college students and that "if she didn't come in, I would have to replace her. However, I wished that she would come into work." Slamow denied saying that Bucchio would be in jeopardy of losing her job if she did not report on Monday, and he denied threatening any employee with discharge for a strike or other protected activity. Slamow testified that he neither hired nor fired employ- ees at Nassau Insurance. Bucchio at first testified that she was upset and sought out her mother, Josephine Bucchio, who also worked at Nassau. Together they confronted Slamow in the park- ing lot where Mrs. Bucchio said, "Are you trying to in- timidate my daughter" and "if she crosses a picket line maybe she gets her leg broken." Slamow responded that he also did not want to be intimidated, that he liked Miss Bucchio, but that his work had to be done. Then, the 80 I have found above that Slamow is a credible witness. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mother and daughter went to see DiLoreto. On cross-ex- amination, Bucchio testified that her mother asked Slamow why he told her daughter that she was "in jeop- ardy" of losing her job if she went out on strike. When asked by counsel for Nassau why the two statements quoting her mother differed in her testimony, Bucchio said that although the words were different, the meaning was "one and the same." When asked whether Slamow had used the word "fire," Bucchio said he had not but that he had said he could not "utilize her services." She then stated that she could not recall exactly the words he had used. After refreshing her recollection by reading the sworn statement she had previously given to a Board agent, Bucchio testified that during this conversation Slamow had not said anything about replacing her or laying her off.6 i Slamow testified that he saw Anna Bucchio with her mother outside the premises of Nassau. Mrs. Bucchio was shouting at Slamow that "you're going to fire my daughter, you're threatening us," while her daughter was trying to pull her back by tugging on her arm. Slamow told Mrs. Bucchio he had not said he would fire her daughter and suggested that the two women go see Di- Loreto. Slamow testified that during this conversation there was no mention of picket line violence nor of danger to any employee from such violence. Bucchio testified on direct that she and her mother went to DiLoreto's office where her mother asked Di- Loreto if her daughter's job would be in jeopardy if she did not work on Monday. DiLoreto told the two women to come back at 5 p.m. to discuss the matter and the con- versation ended. On cross-examination, Bucchio testified that her mother told DiLoreto that Slamow had told her daughter she would be fired. Then Bucchio testified that her mother only said, "Slamow just threatened my daughter." Finally, Bucchio said her mother had never asked DiLoreto if her daughter's job would be in jeop- ardy during this conversation. DiLoreto testified that during this incident, Mrs. Buc- chio only asked if he could see her, and that he then asked her to return after 5 p.m. According to Bucchio's direct testimony, when she and her mother went back to see DiLoreto at 5 p.m. she told DiLoreto that Slamow had told her that if she did not work on Monday "I would be in jeopardy of losing my job."62 DiLoreto responded that he was in charge of hiring and firing, that he would like to see her at work on Monday and "if you're not here, I cannot tell you how long your position would be left open for you."63 He also told Bucchio that there would be a meeting for all the employees the next day to discuss this matter. Bucchio did not work on Fridays. Apparently this meet- ing was never held. Bucchio stated that her reason for going to see DiLoreto was "to find out whether or not what Mr. Slamow had said was true." She testified that DiLoreto had not told her she would be fired nor did he 81 Josephine Bucchio did not testify concerning the events of March 8, 1979. 62 Bucchio testified that she did the talking at this meeting and that her mother did not speak es Bucchio testified that she was hired by DiLoreto and not by Slamow say she had to cross the picket line. In fact, he said that Bucchio was a good worker and "if you choose to come in Monday morning, your job is here." Bucchio testified that after the first conversation in which Slamow men- tioned her part-time status, she did not seek any further clarification of the subject and she did not ask DiLoreto about it. DiLoreto testified that when the two women returned to his office, Mrs. Bucchio began by asking whether her daughter "could work here." Then she began describing a conversation her daughter had with Slamow about re- porting for work the next week. When DiLoreto asked Mrs. Bucchio if she had been present, she answered no, and he said, "Let me hear it from Anna." Miss Bucchio then told DiLoreto that Slamow had asked if she would be at work next week, and then she asked DiLoreto if she could work the next week. At that point, DiLoreto told both women that they could work next week and they said "thank you" and left. DiLoreto said that Miss Bucchio did not tell him Slamow had said she would be in jeopardy of losing her job. DiLoreto testified that he did not say that he was in charge of all the hiring and firing, but he testified that the statement, if it had been made, was correct. DiLoreto denied saying to Anna that he did not know how long her job would be left open. Given Bucchio's inconsistent and shifting testimony, I do not find that she had an accurate recollection of what Slamow actually said to her on March 8, 1979. Bucchio's testimony is insufficient to make out a prima facie case especially in view of her inexact use of language and her seemingly loose transposition and substitution of words which, legally, have different meanings and conse- quences. There is a vast difference between the state- ments that she would "lose her job" if she joined the strike or that she could be "replaced," and there is a similar difference between the alleged statements that she could be "fired" because she was a part-time employee or that she was not "covered" by the Union because of her part-time status. Further, Bucchio had difficulty re- calling what subjects were covered during each of these four conversations and was inconsistent whether she made certain statements or others made them. Given her alleged "upset" at being told she would be fired because she was a part-timer, if the threat had indeed been made, Bucchio would no doubt have raised this question with DiLoreto when she had an opportunity to speak to him. Moreover, both Slamow and DiLoreto, whom I have found to be credible witnesses, denied telling Anna Buc- chio that she would be discharged. Slamow testified that he told her that he would have to replace her in order to get his work done, and DiLoreto testified that all he said to Bucchio was that she was welcome to work next week. I note that even if I credited Bucchio's version of the conversation with DiLoreto, the most DiLoreto is al- leged to have said in response to her query whether it was true that she would be fired was that he, not Slamow, fired and hired at Nassau, and "I cannot tell you how long your position would be left open." This is a far cry from a threat of discharge and is a permissible statement of the rule that strikers may be replaced if nec- NASSAU INSURANCE CO essary to run the employer's business.64 Thus, even if I had found that Slamow did indeed threaten to fire Buc- chio, I would find under Bucchio's version of the events, that the violation had been cured when Bucchio, about one-half hour later, heard that this was not so from the head of the Company who alone did all the hiring and firing.65 6. Alleged presettlement threats and discrimination On June 29, 1979, the Regional Director vacated and set aside the settlement agreement of December 29, 1978. As I have found that no unfair labor practices were com- mitted by Respondent Nassau after the execution of the settlement agreement, I also find that the Regional Di- rector had no grounds for setting aside the settlement agreement. Therefore, I shall recommend that the settle- ment agreement in Cases 29-CA-6478, 29-CA-6478-2, and 29-CA-6072, be reinstated. Thus it is unnecessary to make any findings concerning the alleged unfair labor practices predating the settlement agreement. Deister Concentrator Co., 253 NLRB 359 (1980). Even though I do not consider it necessary to deal with the allegations of presettlement unfair labor prac- tices, I note that of the two witnesses who testified on behalf of the General Counsel in support of those alleged 8(a)(l) and (3) violations, one, Edward Luria, failed to appear for further examination by counsel and his entire testimony was striken from the record. The Board upheld this action on the General Counsel's appeal, hold- ing on June 18, 1980, that "The Administrative Law Judge acted properly within her discretion pursuant to § 102.35 of the Board's Rules and Regulations." The other witness, Dorothy Shwide, gave inexact, contradictory, and changing testimony and was thus not a reliable wit- ness. The General Counsel also called DiLoreto as a hos- tile witness, but he denied all the allegations of unfair labor practice. The General Counsel claimed to have two tape recordings of a speech given in the spring of 1978, by DiLoreto in which he allegedly threatened not to bargain with the Union and to discharge any employ- ee who went on strike. These tape recordings were not admitted into evidence. The tapes were largely inaudible and they could not be authenticated because the General Counsel could not produce, for an unstated reason, the person who allegedly made the tapes CONCLUSIONS OF LAW 1. By threatening employees of Nassau and other em- ployers and, in the presence of employees of Nassau, threatening supervisors and agents of Nassau to inflict bodily harm; by inflicting bodily injury and other harm to their persons; and by threatening to inflict and inflict- ing damage to their property; by attempting to block the entrances to and exits from Nassau's premises; and by at- 64 See Television Wisconsin, 224 NLRB 722, 765-766 (1976) The com- plaint does not allege that Slamow unlawfully interrogated Bucchio con- cerning her intentions in the event of a strike Nassau had a legal right in the face of an imminent strike to ascertain its personnel situation Industri- al Towel Service Co, 172 NLRB 2254 (1968) 65 Sieves Sash & Door, 164 NLRB 468 (1967), enfd in relevant part 401 F 2d 676 (5th Cir 1968) 897 tempting to prevent employees of Nassau from entering and leaving the Nassau premises ; the Union has violated Section 8(b)(1)(A) of the Act by restraining and coercing employees in the exercise fo their rights under Section 7 of the Act. 2. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Nassau Insurance Company did not violate the Act. REMEDY Having found that the Union has engaged in unfair labor practices in violation of the Act, I will recommend that it cease and desist and that it take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed66 ORDER The Respondent, Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing employees in the exercise of their rights under Section 7 of the Act by threats of bodily injury; by inflicting injury to employees of Nassau and other employers; by threats of injury and by inflict- ing injury to supervisors and agents of Nassau, in the presence of employees of Nassau; by threats of damage and inflicting damage to their property; and by attempt- ing to prevent employees of Nassau from entering and leaving 'the Nassau premises. (b) In any like or related manner restraining or coerc- ing 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) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."87 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (b) Deliver to the Regional Director for Region 29, signed copies of the notice for posting by the Nassau In- 66 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 67 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 " 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surance Company , if willing, at places where notices to Nassau's employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint in Cases 29-CA-6478, 29-CA-6478-2, 29-CA-6702, 29- CA-6706, and 29-CA-7451 is dismissed in its entirety. IT IS FURTHER RECOMMENDED that the settlement agreement in Cases 29-CA-6478, 29-CA-6478-2, and 29-CA-6702 be reinstated. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT restrain or coerce employees of Nassau Insurance Company and other employers in the exercise of their rights under Section 7 of the Act by violence and threats of violence directed against employees or, in the presence of the employees of Nassau, by violence and threats of violence and threats of violence against su- pervisors, and agents of the Employer, or by threats of damage and damage to their property. WE WILL NOT restrain or coerce employees of Nassau Insurance Company by attempting to block entrances to and exits from Nassau's office and by attempting to pre- vent employees of Nassau from entering and leaving the Nassau office. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. LOCAL 917, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER- ICA