P&C Food Markets, Inc.

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD P&C Food Markets, Inc. and Local 317, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 3-CA-10884 28 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 13 March 1984 Administrative Law Judge Burton S. Kolko issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief, as well as an answering memoran- dum to the Respondent's exceptions. The Charging Party filed cross-exceptions and a supporting brief. It also filed an answering brief to the Respondent's exceptions. The Respondent filed an answering brief to the cross-exceptions. 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,' and conclusions2 only to the extent consistent with this Decision and Order. i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. 2 We adopt the judge's conclusion that the Respondent did not violate Sec. 8(a)(5) by telling union representatives on 3 February 1982 that if they did not sign a contract and strike settlement containing a no-reprisal clause covering both the Respondent and the Union in 20 minutes, there would be no deal In the absence of exceptions, we do not pass on the judge's conclusion that the no-reprisal clause was a nonmandatory subject of bargaining. It is uncontested, however, that the Union suggested the inclusion of a no-reprisal clause in the course of settlement negotiations on the evening of 2 February 1982 and that the parties did not discuss the exact wording of the clause at that time The Union's witnesses do not call into question the testimony of the Respondent's vice president and bargaining agent that he understood the Union to suggest a no-reprisal clause applying to both the Respondent and the Union In addition, the parties agreed that the Respondent was to incorporate the parties' under- standing in a written settlement agreement to be reviewed on 3 February 1982 The Union's bargaining agent testified that he secured the authorization of the drivers on the morning of 3 February 1982 to "negotiate any con- tract" without submitting the contract to the membership for ratification and that the parties had not reached agreement the night before He fur- ther testified that, in addition to objecting to the no-reprisal clause at the 3 February 1982 meeting, he objected to certain language in the settle- ment agreement concerning grounds for discharge He noted that the parties agreed at the meeting to delete this language Finally, it is undisputed that the Respondent agreed, at the Union's re- quest, to suspend temporarily the hiring of replacements while the parties conferred over a settlement agreement It is also undisputed that the Re- spondent suggested to the Union that it should sign the agreement only after some time had been devoted to hammering out other unsettled con- tract terms and discussing the Union's objections to the no-reprisal clause The Respondent excepts to the judge's conclu- sion that the Respondent violated Section 8(a)(3) of the Act by replacing striking employees Zion, Lip- pert, Helinger, Borchik, Cost, and Boots. We find merit in this exception.3 The judge concluded that the replacement of Zion, Lippert, Borchik, and Cost was unlawful be- cause the Respondent "arbitrarily" replaced them in order of seniority and did not have a reasonable basis for believing that they were on strike when it made the replacement decision. We do not adopt the judge's conclusion because we are unable to agree with his characterization of the Respondent's conduct. The Respondent's drivers, approximately 130 in number, went out on an economic strike at mid- night, 31 January 1982. The strike ended on 3 Feb- ruary 1982. On 2 February 1982 the Respondent hired 13 replacement drivers and put them to work moving perishable goods out of the Respondent's warehouses. When the strike ended, the Respond- ent did not immediately reinstate the 12 least senior drivers on the seniority list because they had been displaced by the replacement drivers.4 The Union's representative testified that the Respondent's representatives stated at this point that "we can't change any wording in the contract or this agreement, and we have 20 minutes to get back to the office and if it is not signed, we don't have an agreement:" Under these circumstances, we are unable to find that the Respondent attempted at the last minute to insert unilaterally a no-reprisal clause in a previously agreed-upon contract, nor did the Respondent's statement to the effect that there would be no deal if the agreement were not signed in 20 minutes amount to a refusal to bargain or indicate further bargain- ing would be futile. Rather, it appears that the parties were engaged in ongoing bargaining over the settlement agreement, which ended with the Union's decision to execute that agreement. We also agree with the judge that the Respondent violated Sec 8(a)(1) of the Act by the statement of Supervisor Wheeler to employee Branning that if Branning did not return to work during the strike, he "would be terminated and would no longer be an employee of P&C ",We find it unnecessary to pass on the remaining independent 8(a)(1) allegations inas- much as they are remedially cumulative to the 8(a)(f) violation we have found. 3 The judge concluded that the replacement of employee Helinger was unlawful because there was "no evidence" that he supported the strike. Employer Helinger testified, however, that he told his supervisor that he would have to consult his union steward before taking out an assigned run after the picket line had been set up in the early hours of 2 February 1982, and that, after speaking to the steward, he left before his shift ended without giving the Respondent any reason for his absence Vice President Carlson testified that he received information about Helinger's support of the strike from the dispatcher or the warehouse coordinator We conclude, contrary to the judge, that there was sufficient evidence to support a determination that Helmger was participating in the strike. Therefore, we do not adopt the judge's conclusion that the replacement of Helinger violated Sec 8(a)(3) The judge concluded that Boots was unlawfully replaced because he was on disability leave and out of town at the time of the strike The Respondent discovered that it had been mistaken in concluding Boots was on strike and reinstated him when his disability leave ended We do not adopt the judge's finding of a violation as to Boots The decision to replace Boots was not alleged as a violation in the complaint and the General Counsel decided, after investigation, not to seek such a finding 4 The Respondent decided not to replace a 13th driver This decision is discussed infra 282 NLRB No. 122 P&C FOOD MARKETS 895 The judge presumed that the Respondent made the decision to replace the driver lowest on the se- niority list at the moment it hired the first replace- ment and decided to replace the least senior driver who had not yet been replaced as such successive replacement was hired. Accordingly, the judge evaluated the Respondent's decision to replace each driver only in light of the information about the driver's conduct known to the Respondent on 2 February 1982 before the replacement correspond- ing to that driver had been hired. The record does not support this view of the Re- spondent's replacement decisions. The Respond- ent's vice president Kenneth Carlson testified with- out contradiction that he knew that the Union in- tended to announce the names of the replacement drivers at a meeting on 3 February 1982 and that he continued to investigate whether the employees who were selected for replacement were actually on strike until that time. The secretary to the Re- spondent's director of transportation testified that Carlson instructed her to remove the names of the 12 replaced drivers from the payroll no earlier than 3 February 1982. The judge found "no record evidence" that the Respondent knew which or how many employees would be replaced until Carlson told the Union's bargaining agent Donald Jones at 6:30 p.m. on 2 February 1982 that 13 replacements had been hired. The Union contends that the Respondent's replacement decision was final at that time because Carlson also told Jones that the drivers to be re- placed were those with lower seniority than em- ployee Mahan, the 14th employee from the bottom of the seniority list. We cannot find that this conversation constitutes unequivocal evidence that the Respondent had a fixed intention on 2 February 1982 to replace the 12 least senior employees. Jones testified that Carl- son offered the information that the "bottom 13 people" were replaced, but did not identify the re- placed drivers until Jones stated that he needed to know so that he could inform the membership at the meeting the following morning. Jones' account of the conversation is not inconsistent with Carl- son's testimony that he continued to collect infor- mation from supervisors about the least senior driv- ers with an eye to finalizing his decision on re- placements before it was announced to employees at the union meeting. The undisputed evidence establishes that before the strike ended on 3 February 1982 employees Zion, Lippert, and Cost were told to report for work by supervisors and did not do so nor call in to explain their absences. The undisputed evidence also establishes that employee Borchik did not report for his 11 p.m. shift on 2 February 1982 and was observed picketing during the hours that he was scheduled to work. Thus, there is ample reason to conclude before the strike ended that Zion, Lippert, Cost, and Borchik were participat- ing in the strike. We are unable to conclude, under the circum- stances here, that the Respondent's selection of em- ployees Zion, Lippert, Cost, and Borchik for re- placement violated the Act. There is no evidence that the Respondent acted in retaliation for their participation in the strike or to discourage other employees from engaging in concerted activity. Rather, the evidence establishes only that the Re- spondent decided to use seniority to select the strikers to be replaced and that Zion, Lippert, Cost, and Borchik were low on the seniority list. Accordingly, we shall dismiss the portion of the complaint alleging that the Respondent's replace- ment decision violated Section 8(a)(3). See Indiana Desk Co., 276 NLRB 1429, 1442-1448 (1985) (Laid- law does not require a particular method of rein- statement). 5 The Respondent also excepts to the judge's con- clusion that it violated the reinstatement rights of employees Ligoci and Borchik under Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). Borchik and Ligoci were not reinstated when the strike ended but were placed on a preferential hiring list. Borchik was reinstated on 8 April 1982 and Ligoci on 24 May 1982. The Union contended that Borchik and Ligoci were not reinstated as va- cancies arose as required under Laidlaw. It argued that Borchik should have been rehired on 5 Febru- ary 1982 when replacement Sullivan was dis- charged, and Ligoci should have been rehired on 11 March 1982 when replacement Sasonberry re- signed. The Respondent argued that it had a "busi- ness justification" under Laidlaw for the delay in rehiring both employees: When Sullivan and Sa- sonberry left, it already had more drivers than it needed because business was slow. The judge rejected the Respondent's business justification because the excess of drivers was the Respondent's "own doing." He reasoned that the excess arose because the Respondent "hired 13 re- placements for what it later discovered were just 10 striking vacancies." There were only 10 vacan- cies, the judge found, because the Respondent de- The Union excepts to the judge's conclusion that the Respondent had a reasonable basis for replacing employee Carswell The judge's finding that the Respondent knew that Carswell reported to work on 1 February 1982 only after calling a supervisor to see if the strike had been halted is supported by the record We conclude, therefore, that the Union's excep- tion is without merit 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cided not to replace the 13th driver from the bottom of the seniority list, Revoir, and, had rein- stated 2 of the 12 drivers replaced, Boots and Bar- bato, on discovering that they were on disability leave during the strike. We do not agree with the judge's analysis. The Respondent's complement of approximately 120- 130 drivers voted overwhelmingly to strike. It is clear from the record that there were many more economic strikers than the number of replacements hired. Accordingly, the Respondent did not hire more replacements than "striker vacancies." Rather, to the extent that it can be argued that the excess of drivers was the Respondent's "own doing," the record suggests only that the excess arose because the Respondent reinstated immedi- ately after the strike a greater number of economic strikers than the number of vacancies in its work force. The Union attempts to cast doubt on the Re- spondent's good faith in doing so by contending that the 13th striker, Revoir, was prematurely rein- stated "because he crossed the picketline." There is no evidence to support this contention.6 Vice President Carlson testified without contra- diction that the Respondent did not replace Bor- chik when the first replacement left because the Respondent was already overstaffed in relation to its needs. According to Carlson, the understanding between himself and the supervisors was that the Respondent would reinstate the drivers from the preferential hiring list as work became available. Also, employee Cost testified that Supervisor Wheeler told him that there would be a delay before he was called back to work because the Re- spondent's contract with Radisson had come to an end, making more drivers available to take runs out of the warehouse.? Consistent with this testimony, there is no evidence that the Respondent hired or recalled any drivers before reinstating Borchik and Ligoci. We find that the record as a whole does not support the General Counsel's contention that the Respondent's reinstatement of Borchik and Ligoci was not in accord with the requirements of Laidlaw. We shall, therefore, dismiss the complaint insofar as its alleges that the reinstatement of these 6 Vice President Carlson testified that Revoir was reinstated because on 2 February 1982 Carlson had promised Jones, the Union's bargaining agent, that he would not hire any more replacements when, to his knowl- edge, only 12 had been, hired. Jones corroborated Carlson's testimony that the parties agreed on the evening of 2 February 1982 that no further replacements would be hired until the parties had a chance to discuss a settlement of the strike ' The Respondent argues that it was prejudiced by the judge's decision on the fifth day of the 6-1/2-day trial to allow the allegation of a Laidlaw violation to be added to the complaint and his refusal to allow the Re- spondent a continuance to prepare its business justification defense. We agree with the Respondent, but find it unnecessary to pass on this conten- tion in view of our disposition of the Laidlaw claim employees violated Section 8(a)(3) of the Act." See Indiana Desk Co., supra; Pepe's Inwood Packing Co., 206 NLRB 642 (1973) (no evidence employees other than strikers hired). CONCLUSIONS OF LAW 1. The Respondent violated Section 8(a)(1) by Supervisor Wheeler's statement to employee Bran- ning. 2. The Respondent did not violate Section 8(a)(5) by its conduct in including a no-reprisal clause extending to the Union in the strike settle- ment. 3. The Respondent did not violate Section 8(a)(3) by its replacement of employees Zion, Lip- pert, Borchik, Cost, Helinger, Boots, and Carswell. 4. The Respondent did not violate Section 8(a)(3) by denying Laidlaw rights to employees Borchik and Ligoci. REMEDY Having found that the Respondent has engaged in conduct violative of Section 8(a)(1) of the Act, we shall order the Respondent to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act, including the posting of the appropriate notice. ORDER The National Labor Relations Board orders that the Respondent, P&C Food Markets, Inc., Syra- cuse, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with termination of employment for participating in a strike. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its State Fair Boulevard and Fly Road warehouses, Syracuse, New York, copies of the at- tached notice marked "Appendix."9 Copies of the 9 We note that the Union excepts to the judge's failure to find that the Respondent violated Sec 8(a)(1) by obtaining a temporary restraining order prohibiting employees from striking until midnight on 1 February 1982 We need not pass on this exception because obtaining the order was not alleged as a violation in the complaint and this issue was not liti- gated before the judge 9 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 " P&C FOOD MARKETS, 897 notice, on forms provided by the Regional Direc- tor for Region 3, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations not specifi- cally found. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten employees with termina- tion of employment for participating in a strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. P&C FOOD MARKETS, INC. Doren G. Goldstone, Esq., for the General Counsel. Thomas J. Grooms, Esq. (Bond, Schoeneck & King), of Syracuse, New York, for the Respondent. Donald G. Oliver, Esq. and James R. LaVaute, Esq. (Blit- man & King), of Syracuse, New York, for the Charg- ing Party. DECISION BURTON S. KOLKO, Administrative Law Judge. P&C Food Markets, Inc. (Respondent) operates a chain of su- permarkets in and around Syracuse, New York. At the end of January 1982, the Respondent's truckdrivers, rep- resented by the Charging Party Union, voted down Re- spondent's proposal for a collective-bargaining agree- ment that was to succeed the existing agreement, which ran "until February 1, 1982." The truckdrivers then went on strike, during which 12 drivers were replaced by 13 newly hired drivers. Several days later a new contract was reached and the strike ended. The replaced drivers were not rehired until months later. Because of the Re- spondent's conduct during the strike, in ending the strike, and in its rehire of the replaced drivers, the General Counsel alleges violations of Section 8(a)(1), (3), and (5) of the Act.' I find that Respondent unlawfully replaced some of the drivers, unlawfully failed to recall promptly two of the replaced drivers, and unlawfully told several drivers that they were fired ' rather than replaced. In other respects I dismiss the complaint. 1. THE ALLEGED UNLAWFUL TERMINATIONS Since NLRB v.' Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938), it has been the settled rule that an employer may hire permanent replacements for his workers who are striking, as here, to force compliance with the union's collective-bargaining demands (econom- ic strikes). They may not, however, be discharged,2 but must be brought back to work after the strike ends, when the departure of any of the newly hired nonstrik- ing employees causes a vacancy. NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). The distinction between being "discharged" and being "permanently replaced" is often more apparent to jurists and lawyers than it is to the affected employees, which will become painfully ob- vious in the following discussion. The strike began at midnight, Sunday, January 31, 1982,3 was halted at dawn on Monday, February 1, in response to a court order (vacated that afternoon), re- sumed at midnight, February 1, and ended on Wednes- day, February 3. On the morning of Tuesday, February 2, the Respondent advertised in the Syracuse Post-Stand- ard newspaper for truckdrivers. The response was imme- diate and overwhelming and, by midafternoon, a number had already been hired and had left the warehouses with loads. Later that day the Respondent and the Union had reached a tentative agreement for ending the strike, and 13 drivers had been hired to replace the bottom 12 men on the seniority list of unionized drivers. Of those re- placed, the complaint alleges that the following s,ix were unlawfully terminated: John Zion, Stephen Lippert, James Borchik, John Branning, Daniel Gmyr, and Mark Helinger. Also litigated was whether employees also were unlawfully told that they were discharged. For its part, Respondent admits that it permanently re- placed these drivers, and that it was justified in doing so. It denies that the drivers were terminated. Thus, the two issues that are joined are (1) did Respondent act reason- ably in concluding that certain drivers were striking and, therefore, in replacing them; and (2) did it go beyond re- placing these drivers by threatening to terminate them? A. Did Respondent Have Reasonable Bases for Replacing Striking Drivers The first determination hinges on whether Respondent had reasonable bases to believe that the employees that it replaced had engaged in the strike or supported it. Re- spondent grounds its actions in these indicia (Br. 11-12): (a) union responsibility for the strike, I The charge was filed on February 10, 1982. The complaint issued on March 30, 1982 The hearing started on October 13, 1982, and concluded on November 19, 1982. Briefs were' filed on February 22, 1983. 2 See, e.g, NLRB v. International Van Lines, 409 U.S. 48 (1972). 3 All dates are in 1982 unless otherwise indicated. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) the employee's attendance at union meetings relating to the strike, (c) the employee's appearance on the picket line, and (d) the level of overall employee support afford- ed the strike . . . as well as the more traditional in- dicia, such as a refusal to work when scheduled and express statements to, management evidencing sup- port for the strike. Respondent charts these indicia by employee, as fol- lows: Strike Testi- or Need Told Report or Observed fled Union Man Work Partici- Employee Was AP- agement as pating in Strike proval Strike In- Picketing to strutted Work Carswell ............. X X X X X Gmyr .................. X X X X X Ligoci ................. X X X X X Branning ............ X X X X X Borchik .............. X X X X X Lippert ............... X X X Hellinger ............ X X X X X Zion .................... X X X Cost ................ X The General Counsel and the Union proceed on,the theory that Respondent went straight up the seniority list to replace its' drivers, stopping only at the 13 drivers be- cause it had achieved its goal of frightening the Union into submission as early as the same afternoon of'the day that the newspaper advertisements for drivers had run. After outlining the parties' actions, my analysis will discuss each employee with a view to determining whether Respondent had a reasonable basis. for replacing him. See Emerson Electric Co., 246 NLRB 1143 (1979). If a reasonable basis is found lacking, then the Respondent has acted at its peril in acting against these employees. See NLRB v. Burnup & Sims, 379 U.S. 21 (1964); La Mesa Convalescent Hospital, 217 NLRB 182 (1975). When the drivers were voting on January 31 whether to accept the Company's last offer, the Company was as- suming that the vote would be favorable and that the new contract would succeed the expiring contract with- out incident. The Company's president was out of town, as was a member of its negotiating' team. More impor- tantly, the Company's warehouses were full of perish- ables worth $2 million that were to be delivered during the week beginning Monday, February 1. When the driv- ers voted down the contract on Sunday afternoon, Janu- ary 31, that action was immediately telephoned by Donald Jones, the Union's negotiator, to his counterpart at P&C, Kenneth Carlson. Carlson was stunned both by the news of rejection of the contract and the statement by Jones that the drivers would be going on strike just after midnight. Carlson told Jones that the contract did not expire until 11:59 p.m. of the next day, February 1. Jones disagreed and stated that the strike would occur that night. And, in fact, at midnight the Union did estab- lish picket lines at the P&C warehouses at State Fair Boulevard and Fly Road. These were removed in the morning because of a state court restraining order that was issued during the night on the Company's ex parte motion. That order was vacated on the afternoon of Feb- ruary 1, but the Union's pickets did not return until mid- night, according to Jones, so that the Company could continue to move out its perishable products. From the outset, it was the dispersing of the inventory of perishable goods that was P&C's chief concern. When Carlson heard from Jones on Sunday, January 31, that the vote went against ratification and that a strike would ensue, he telephoned Joseph McCabe, vice president for employee relations of the Pneumo Corporation, P&C's parent company. McCabe was at home in Boston, and directed Carlson to telephone the P&C staff that would be needed to start moving out the perishable products that evening. McCabe commandeered a corporate jet and was in Syracuse by 6 p.m. While he was en route, Carl- son and others started phoning P&C drivers and ware- housemen to get whatever volunteers would come in to take loads out before the strike. And as the midnight deadline drew near, loads did move out, driven by driv- ers and washers at the low end of the seniority list. Jones and Carlson had scheduled a negotiating session for the morning of February 1, but that produced no agreement, nor was there any movement toward one. On hearing this, McCabe told Carlson to prepare and place an advertisement in the Syracuse press for truckdrivers to replace those whose strike would recommence at mid- night. The ad appeared on the morning of February 2, and produced an overwhelming response. By the evening of February 2, 600 applicants had appeared, and 13 new drivers had been hired.4 That evening Jones and Carlson met at the Holiday Inn and tentatively agreed that both the strike and the hiring of replacements'would end. The next day, February 3, the - Union voted to return to work. Later that day Jones and Carlson signed an agreement to settle the labor dispute.5 In addition to establishing the terms of the collective-bargaining agree- ment that was to be prepared for subsequent 'signature, the strike settlement agreement called for P&C to rein- state the striking employees "except for striking employ- ees for whom no jobs presently are vacant by reason of thirteen (13) new employees hired by P&C during the strike. The last mentioned striking employees should be placed on a preferential hiring list and will be offered job openings as they occur before new employees are hired [in' accordance with their seniority]."s 4 In this regard the transcript errs. It should be changed so that on p. 813, L. 23, the word "fire" is replaced by "hire." In addition, the other transcript corrections proferred by Respondent's motion dated February 16, 1983, shall be made s It. Exh. I (J-11), Exh. 4 appended thereto s It was agreed-that because P&C had already hired 13 replacement drivers, they would replace the bottom 12 men on the drivers' seniority list. Driver Revoir, the 13th up on the seniority list, was not replaced because Carlson knew he had crossed the picket line to work. P&C FOOD MARKETS 899 We turn, then, to each replaced employee that ' is K the subject of the complaint' to determine if Respondent acted reasonably at the time it replaced each employee. John Zion According to Respondent, following a run on January 31, Zion was told' to come into work on February 1 at 7 p.m. He completed that run shortly before 3 p.m. on February 2. `He was instructed by Supervisor Wheeler to take his 8-hour rest period that state law required, and return to work. He told Wheeler that he would not return because of the strike. On his way out he visited the picket line for 15 to 20 minutes and returned home. He was observed by management at the picket line. From this, Respondent argues that it had ample evi- dence to conclude that Zion was a striking employee. The General Counsel and Union argue that Respondent's conclusion flies in the face of the timing of events that day., They argue that because the newly hired drivers were all dispatched before 4 p.m., and because Carlson had told Jones at 6:30 p.m. that 13 replacement drivers had been hired, the "evidence" that the Company had of Zion's support of the strike played-no actual role in his being replaced. To be sure, the Company knew on February 1 that it would hire replacements; it took steps to place advertise- ments for the next day. But there is no record evidence that it knew who or how many would be replaced until Carlson told Jones on February 2 at the 6:30 p.m. Holi- day Inn meeting that 13 replacements had been hired. Clearly by this time Carlson had determined to replace at least 12 and to so inform Jones to persuade Jones that if the Company's proposals for a new contract were not accepted, he would keep going until he had replaced all of the striking drivers.8 Thus, the Zion episode occurred while the Company was processing new applicants and was in a state of flux about how many of these it would actually hire. If the Company is correct that Zion flatly stated that he would not return because of the strike,, then it would 'not have been unreasonable of it to con- clude that he was a driver who could be replaced. But Zion denied ever making such a statement, and the circumstances support his' denial Zion had punched in at the State Fair Boulevard warehouse, from which he was sent over to the Fly Road warehouse, from which meat deliveries were dispatched. He left there at 10:30 p.m. and returned at 3 p.m. the next day, February 2.9 Zion testified that when he telephoned Wheeler at the State' Fair Boulevard warehouse from Fly Road, Wheel- er was angry at Zion's delay, until Zion explained that the reason was the curfew. Wheeler then agreed to punch out Zion's timecard, and told Zion to take his 8 ' The instant litigation involves 10 of the 12 drivers who were re- placed. Two others were reinstated once Respondent learned that they were on disability leave and, thus, wrongly replaced. 8 Although Jones had called Carlson at 4:30 p.m. to inquire about the hiring of replacements, all Carlson told him then was that "a number had already been hired and had taken out their first runs." Tr. 889. It was not until the 6 30 p.m. meeting that "a number" was firmed up to 13. ° He had been dispatched in such haste that his second stop was to a store that was in a town that prohibited night deliveries. He waited until 8 am. to make that delivery because the way the loads were packed he could not work around the load for the curfewed store. houms'off and then report to work. Zion further testified that Wheeler told Zion not to make any rash decisions and to think about it, but that "if you don't come to work, you will be all done." (Tr. 60.) When cross-exam- ined, Zion testified that there was no discussion of cross- ing or ' not crossing the picket line, only that he ended the conversation by saying "okay, John," and hanging up. Wheeler recalled that a driver had been delayed be- cause of a curfew; but he could not recall who that driver was. Nor could he recall that he punched, out any driver's timecard. He did agree that any meat runs "quite possibly" would have begun and ended at the Fly Road warehouse, not the State Fair warehouse where Zion had punched in.1 ° Given Zion's positive testimony and Wheeler's lack of memory," 1 I credit Zion that he made no statement to Wheeler that he would not report back after 8 hours be- cause of the strike or any union penalty he might suffer. But Wheeler was correct in recalling that he saw Zion with the pickets later that afternoon, for Zion credibly testified that after leaving Fly Road he stopped at the picket line at State Fair Boulevard on his way home to visit the pickets and fmd out what was going on, staying for about 15 minutes before proceeding home. Wheeler saw Zion during this period, assumed he was picketing,' and, as he ' did with others, relayed the information to Carlson. It thus boils down to this brief episode whether Respondent had 'a sufficient basis for concluding that Zion supported the strike. I fmd that it was not sufficient. Wheeler saw Zion only for a few minutes, during which Zion was just standing and talking with those who were picketing. He was not picketing, and his actions gave Respondent no basis for inferring that he was. Moreover, Zion was on his breaktime, and ' Respondent knew this. Zion, then, could not be assumed to be withholding his services be- cause his services were "withheld" by act of law that stated he could not drive for 8 hours. Thus, even if Zion had been picketing during his off-duty time, Respondent would have no basis from that "to equate picketing with striking." La Mesa Convalescent Hospital, 217' NLRB 182, 184 (1975). Indeed Wheeler's test "if they were on the picket line they were strikers" (Tr. 703) flies directly in the face of La Mesa, and is erroneous. Stephen Lippert Although not employed primarily as a driver, Lippert was called on the evening of February 1 to come in to take out a load. He did, being dispatched shortly before midnight. He returned at 3 p.m., punched out, and left. On his way home he talked with the picketers for 15 minutes, went home, and went to sleep. Wheeler testified that as Lippert was leaving the time- clock area, Wheeler and Lippert spoke to each other. 10 Tr. 663. it Wheeler did recall speaking to Zion at the State Fair Boulevard warehouse after he had returned on the afternoon of February 2, and that it was there that Zion stated his refusal to come in after his 8-hour break But because I credit Zion that he returned to Fly Road not State Fair Boulevard, I do not credit Wheeler's faulty recall 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Wheeler he asked Lippert if after his 8 hours off would he come in for another run, and that Lippert responded, "No, I can't do that. We are on strike." Wheeler then told Lippert ",Okay, Adios ."12 Lippert not only denied saying "no" to Wheeler, but added that after Wheeler told him "take your eight hours off; come back in or that is it," Wheeler waved and said "bye-bye" to Lippert. Wheeler testified that he saw Lippert on the picket line right after they had spoken. Later in his testimony, on cross-examination, Wheeler admitted that he personal- ly did not see Lippert on the picket line, but had report- ed to Carlson that he was. Under these circumstances I credit Lippert's version of the conversation with Wheeler (the relevance of which lies elsewhere, see infra). More importantly for present purposes, I agree with the General Counsel and the Union that Respondent had no reasonable basis for'con- cluding,that Lippert was on strike when it replaced him that very afternoon. While Lippert may have been seen at the picket line by someone, Wheeler himself knew that Lippert was on his rest break; thus, when Wheeler re- ported to Carlson that Lippert was on strike he had no basis for doing so. La Mesa Convalescent Hospital, supra. Mark Helinger Just before midnight on February 1, dispatcher White sent Helinger, who had been called in earlier, to the Fly Road warehouse to pull a meat run. He did so, but had to walk back to Fly Road because the heaviness of the load on the trailer prevented him from separating the tractor from the trailer. Just after midnight when the strike resumed, he was seen at Fly Road by Meat Fore- man Michaels, who told him to take out another load. Helinger told Michaels that he wanted to check with the union steward, so Michaels told Helinger to contact him after the check with the union steward. Helinger went to the picket line and ' waited 45 minutes for the steward. But while Helinger was waiting, Michaels drove off and did not return. Helinger went home because the only tractor available for him to use was the one he had left after he was unable to separate it from its trailer. Respondent's sole testimony on this came from- Carl- son, who testified that information about Helinger sup- porting the strike might have come from Patrick McNa- mara, warehouse coordinator, or dispatcher Robert White. But the latter did not testify, and McNamara's testimony did not refer to Helinger. And Meat Foreman Michaels did not testify. Thus, there is no evidence to support a determination by Respondent that Helinger was participating in the strike. James Borchik Wheeler gave Borchik a milk run at 11 p.m. on Febru- ary 1, 1 hour before the strike was to resume. After com- pleting that run, Borchik returned to the State Fair Bou- levard warehouse at 3 p.m. on February 2. Wheeler then told him to take his 8 hours of rest and report back. Bor- chik mentioned the strike and said he wanted to talk 12 Tr 594. with his wife about whether to work or strike. Wheeler angrily refused to shake Borchik's proffered hand, and Borchik left and headed for the picket line. He, remained there for 90 minutes, returned, and was at the picket line from 8 p.m. to midnight. He slept that night in the van at the picket line, and early the morning of February 3 picketed a store in the suburbs for 1 to 2 hours. Indeed, at each site he was observed holding a picket sign.13 Under these circumstances there seems to be ample reason for Respondent to have concluded that Borchik was supporting the strike. But the timing of events is im- portant, requiring a closer look. All of Borchik's picket- ing was ,done after Borchik had returned on February, 2 and had told Wheeler that before returning from his break he wanted to discuss crossing the picket line with his, wife. Yet in that conversation Wheeler showed his pique by telling Borchik that he had been ordered to hire 130 new, drivers and that 12 new drivers already had been hired. Wheeler said, "I have a hundred applicants still upstairs and we are actively hiring drivers. Some of you guys just ain't going to have a job." (Tr. 238.) Thus, and as Carlson's testimony confirms, by the time that Borchik was punching out, his replacement had been hired. At this time Borchik had not indicated that he was or would be striking, and Respondent acted with- out a reasonable basis in, replacing him. Thomas Cost Respondent's replacement of Cost is an example of how Respondent arbitrarily went straight up the seniori- ty list in replacing drivers, and in so doing stumbled. Cost was a driver who, along with other low seniority drivers, had been laid off for the month of January. While laid off he went to Washington, D.C. for a visit. He left Syracuse on January 29, and returned on Febru- ary 2, late in the evening, long after Carlson had told Jones that the bottom 12 drivers had been replaced. Respondent gropes to salvage what it can from the de- bacle of replacing a driver who was 400 miles away by relying on the fact that Cost did not return to Syracuse on February 1. He had that opportunity because the friend with whom he had driven down to Washington was driving back. That friend was Scott Allen, Carlson's assistant at P&C, who learned of the strike when he tele- phoned from Washington to Syracuse at 10 p.m. on Jan- uary 31. Allen was told about the contract vote, and was instructed to return to Syracuse immediately, which he did on February 1. According to Respondent, Allen then instructed Cost to return to Syracuse that night (January 31), and Cost refused. But Allen did not testify. Cost did testify that Allen was concerned about his own speedy return to Syracuse, for obvious reasons, but that Allen neither requested nor demanded that Cost cut -short his trip and return with him to Syracuse. Nor, according to Cost, did Allen make any mention of a recall of laid-off drivers. I credit Cost over the hearsay testimony offered by Respondent. There is no reliable testimony that Allen 13 There is some controversy about these signs because Borchik testi- fied that they were placed on him by others That may be but Respond- ent cannot be held to knowing that when it saw him on the picket lines P&C FOOD MARKETS 901 was told on the phone- about the Company's attempts to contact drivers about taking out loads or that his tele- phone call to Syracuse informed him of anything other than the surprise vote and the need for him, therefore, to return (he was on P&C's negotiating committee). Nevertheless, Respondent maintains that when Allen returned he informed P&C about Cost, and that this oc- curred before the hiring of the replacement drivers. Given that I do not credit Respondent that Cost said anything to Allen that would" have apprised him that Cost declined, the opportunity to take out runs, I find that Respondent had no such knowledge. Therefore, it did not have a reasonable basis for replacing him. John Boots Even more so than with Cost, Respondent's replace- ment of Boots indicates the arbitrary handling of replace- ments. For ,when he was replaced, Boots was on disabil- ity leave, having been so since January 14, 1982. Boots was out of town when the contract vote took place, and returned to Syracuse late on February 1, ,learning about the strike on his car radio. The next evening he heard on the news about the 13 newlyr , hired replacements. He later learned that he was in the bottom 12 that had been replaced. On February 12 Boots was told by Wheeler that when he was no longer disabled he should come back to his job.14 Boots did return in late February 1982. Respondent throws in the towel on this one, not even attempting on brief to justify its replacement of Boots. The only thing it can say about Boots (and Barbato) occurs elsewhere in its brief, and then only that they were part of P&C's "pre-strike full complement." Br. at 33., Accordingly, I, conclude that Respondent had no rea- sonable basis for determining that Boots supported the strike and should be replaced. Daniel Gmyr At 7:45 a.m. on February 1, when the Union had not yet removed its pickets in response to the temporary re- straining order, Gmyr told Wheeler that he would not move some trucks as directed because of the picket line. When the pickets were removed at 9 a.m. Gmyr moved the trucks until his shift ended. At, 9 p.m. Gmyr reported back to work, as directed, and took out a run from which he did "not return until '3 a.m. on February 2. He encountered John Austin, a P&C representative who told him that he was not supposed to have returned, but was to have been given a further run at his destination by Tucker (P&C's director of security). Gmyr said that Tucker had not done so, and that it was a little late to take it out because he was inside the picket 14 It may just be a coincidence that wheeler told Boots this the day before he was to be interviewed on television about how he was an "em- ployee terminated for sinking while he was on disability, and no where near his place of employment " U. Br. at 37 But one does wonder be- cause Respondent probably knew of the pending interview from the re- porter, who had told Boots that she was going to call P&C to allow for rebuttal. Clearly the televised revelation that it had replaced Boots (and driver Michael Barbato , also out on disability, but not alleged in the com- plaint) while disabled would do little to enhance the Company's public image or its posture in any of the proceedings that Jones had told Carl- son he would be bunging when they settled the strike. line. Austin asked Gmyr if he was sure; Gmyr said yes; Austin told him to punch out; Gmyr did so, with no word from Austin when to report back. (He learned that he was replaced when he attended a union meeting the next day, February 3.) After punching out, Gmyr went to the picket line, where he remained until 5 a.m. He re- sumed picketing at 4 p .m. that afternoon, about the time that the replacement drivers had been hired. While his picketing in the afternoon came too late to signal Re- spondent that he supported the strike, his earlier picket- ing did, plus his two instances of refusing to work behind the picket line. Thus, Respondent had a reasonable basis to infer that he supported the strike, and to replace him. Louis (Luke) Carswell Like Gmyr, Carswell was dispatched on an errand just before midnight on February 1, and returned close to 3 a.m. on February 2. He punched out and then was on the picket line until 4:30 a.m. He resumed picketing on the evening of February 2, although this resumption oc- curred after P&C had hired replacements. But Respond- ent knew of his picketing earlier that morning. It also knew that on February 1 he had reported for work only after calling Wheeler to find out if the strike had been halted, and that he had picketed earlier on February 1 before' the temporary restraining order was announced to him and to the other picketers by Wheeler. Thus, P&C had a reasonable basis to conclude that Carswell support- ed the strike, and to replace him. Thomas Ligoci - Ligoci worked a very long day during the hiatus in the strike on February 1. He took a load out at 10 a.m. and did not return until 5 a.m. on February 2. The picket line was up when he, returned, and he chatted briefly there on his way home. While he was asleep, the re- placement drivers were hired by P&C. But this is the end of the story. The beginning and middle occurred at midnight on January 31 and in the morning of February 1. Ligoci was scheduled to work at midnight on January 31, but did not do so because his steward advised him not to.' Instead, he was on the picket line for 2 hours. He returned to picket at 6 a.m. on February 1, when Wheeler announced to him the temporary restraining order. Wheeler saw him then, and later reported his name to Carlson. In these circum- stances, Respondent had a reasonable basis for concluding that Ligoci supported the strike, and for replacing him. John Branning Branning picketed for 7 hours when the strike began at midnight on January 31. He was seen by Wheeler when the temporary -restraining order was announced to the picketers. At 11 a.m. on February 1, Branning re- ported for work and finished about midnight, as the strike was resuming. He told Wheeler and Foreman Bill Jackson that he would be coming in after his 8 hours of rest only if the picket line was down. From this Re- spondent had a reasonable basis to conclude that Bran- ning supported the strike, and to replace him. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Did Respondent Go Beyond Replacement by Telling Its Drivers That They Were Terminated The complaint alleges that the following employees were unlawfully terminated rather than replaced-Zion, Lippert, Borchik, Branning, Gmyr, and Helinger.15 Re- spondent contends that each of these employees was ad- vised that they were replaced and that P&C's actions support the fact that it replaced its employees. Most of the allegations involve John Wheeler while he was trying desperately to move the perishables out on February 1 and 2. John Zion testified that when he had completed his run on February 2 Wheeler told him to take his 8 hours off and then return to work. "If not, you will be all done. . . . Don't make any rash decision. Go home and think about it." (Tr. 61.) Stephen Lippert testified that Wheeler said, "Take your eight hours off, come back in or that is it," and fol- lowed that with a sarcastic "bye-bye" and a wave of his hand "bye-bye.", (Tr. 173.) John Branning testified that he was told by Wheeler that if he valued his job he should return to work after his 8-hour rest, and if not that he would be terminated and would no longer be an employee of Respondent, but that he would have a job if he returned to work. James Borchik's testimony (Tr. 238-239) reveals the pressure that Wheeler was under, and how he was mani- festing that to the drivers. A. Well, "Jimmy, I want you to be back in at 11:00 o'clock tonight. You are going to have your eight hours off and we're going to assign you a run tonight." I said, "John, I just don't know if I can do that." He goes, "What do you mean?" I just shrugged my shoulders. I am going to tell you something, you got a choice, you either cross the picket line, come in tonight, or there is a good chance you are not going to have a job. I said, "Well, good." Then he continued. I never got any- thing else out of my mouth. He continued, I am going to tell you, I have been ordered to hire 130 drivers. I have already hired 12. I have a hundred applicants still upstairs and we are actively hiring drivers. Some of you guys just ain't going to have a job. I said, "John, I am going to have to talk it over with my wife concerning coming to work that night." He said to me, "What's the matter, do you have to talk to your wife to see if you can work or not?" I said, well John, I stopped at that point, kind of leaned over to shake his hand; no matter what happens here, I want to thank you for giving me the job here. I think you did it over other applica- tions and all that and I really don't want any hard feelings. I have got to ask a question; is profanity allowed? JUDGE KOLKO: Go ahead. THE WITNESS: John said, "I am not going to shake your god-damn hand. I don't want nothing to 15 Although the complaint alleges actual termination, it is clear that the drivers were replaced Therefore, I deal with the issue that remains- were they threatened with termination for supporting the strike? do with' you." I said, okay. I got up and I walked out. An earlier incident with John Wheeler was testified to by Branning and Carswell. Both testified that in the early hours of February 1, when P&C had obtained a tempo- rary restraining order against the strike, Wheeler an- nounced that to the pickets, and stated that the strike was illegal, and that all the drivers had to return to work immediately or they would be "terminated" (Tr. 145, Branning) or, according to Carswell, "fired" (Tr. 321). Regarding these, Wheeler denied saying anything beyond that the strike was illegal and that the drivers should return to work. Given his strong feelings that the strike was unlawful, I credit the testimony that he told the workers that if they did not return right away, they would be "terminated." As it turned out, the temporary restraining order was later vacated, but Wheeler was angry that there was any strike-legal or illegal-and I credit Zion, Lippert, Branning, and Borchik that Wheel- er, vexed at their concern about crossing the picket line, told them that they would be "all done," etc., if they did not come in when the strike resumed. While Respondent on February 3 and 4 took steps to establish a preferential return list for the replaced strikers, that later action cannot cure the effects on February 1 and 2 of Wheeler's remarks to these employees. Being "all done" for honor- ing the picket line was a clear threat of job loss, uttered at a sensitive time when the employees were anxious about whether to exercise their Section 7 rights to strike. Adding potential job loss to what the employees were weighing tended to chill their exercise of those rights.16 Accordingly, I find that Wheeler's utterances violated Section 8(a)(1) of the Act. Vincent et Vincent of Allentown Mall, 259 NLRB 1025 ( 1981). II. WHETHER THERE HAS BEEN A VIOLATION OF EMPLOYEES' LAIDLAW RIGHTS At paragraph VIII(c) of the amended complaint, the General Counsel alleges a violation of the Laidlaw rights of James Borchik and Thomas Ligoci based on P&C's failure to reinstate these workers promptly. The bases for this amended allegation (Tr. 929) are the discharge on February 5 of one of the replacement driv- ers (Sullivan) and the subsequent resignation on March 11 of another driver (Sasonberry). Yet, the first replaced striker, Borchik, was not recalled until April 8, 1982, some 6 weeks after the strike ended. Ligoci was not re- called until May 24, 1982. The General Counsel's posi- 16 Respondent may have had at in mind on February I when it ordered the newspaper ad for drivers to be run the next day to replace the driv- ers, not fire them. But the drivers did not know this, and Wheeler's utter- ances on February 1 and 2 were sufficiently threatening that the drivers could not be expected to perceive that he may have meant "replaced" only. It is clear that at their union meeting on February 3 the employees learned of Respondent's preferential hiring list, and this was further ex- plamed to various individuals by Respondent on February 4 While the General Counsel alleges that further statements were made that suggested "termination," I do not find that any coercion flowed from such state- ments once it was known on February 3 that 12 striking employees were replaced subject to preferential recall I dismiss the allegation in the com- plaint on such utterances after the February 3 union meeting P&C F06D MARKETS "" - 903 tion is that each of these men should have been called earlier to fill the Sullivan and ',51asonberry slots. `*-x The evidence shows that the Union and P&C settled the strike with the understanding that 12 of the striking drivers would be replaced. Prior to that settlement, how- ever, 13 replacements had been hired. Thus, as of the end of the strike on February 3, P&C had its full pres- trike complement of workers plus one. On February 5, replacement Sullivan was discharged, reducing P&C to its prestrike full complement level of drivers. On Febru- ary 24, Boots returned to work from his disability leave, bringing the work force to one above full complement. Thereafter, on March 2, 1982, Barbato returned from his disability leave, putting the work force at two above what was needed. Consequently, when Sasonberry quit on March 11, 1982, none of the replaced employees was recalled because there continued to be a surplus of driv- ers. It was not until the first week in April that business picked up and more drivers were needed. Borchik was recalled to fill the need, followed by ' Ligoci in May, along with five others in May, and three more in July. As both sides note, the applicable standard is the Board's holding in Laidlaw Corp.'' that economic strik- ers who have been replaced but offer to return to work are entitled to reinstatement on the replacements' depar- ture unless the employer ' can show business justification that is "substantial and legitimate."' 8 In Respondent's eyes, its business justification lay in its having extra driv- ers during a slow period. But Respondent's temporary excess of drivers was of its own doing. It hired 13 replacement drivers for what it later discovered were just 110 striking vacancies. The extra three occurred because Respondent decided not to replace Revoir (who had crossed the picket line) and be- cause it neglected to note that drivers Boots and Barbato were classified as disabled-yet they were treated as strikers and replaced. Respondent's brief does not ad- dress why Borchik and Ligoci should be made to suffer a delayed recall in these circumstances, and I find no basis for validating a business exigency that was created by the Company's own actions. Therefore, I find that the failure promptly to recall Borchik and Ligoci after the respective departures of Sullivan and Sasonberry consti- tutes violations of Section 8(a)(3) of the Act. III. WHETHER RESPONDENT UNLAWFULLY INSISTED ON THE INCLUSION OF A NONMANDATORY SUBJECT OF BARGAINING The General Counsel alleges that when,the strike was being settled on February 3, 1982, Respondent required "that the Union agree to a provision [in the collective- bargaining agreement] that prohibited the Union from filing intra-Union charges against members who crossed the picket line during the strike." (Complaint par. 12(a).) The specific clause that troubles the General Counsel occurs as paragraph 3 in the strike settlement agreement 17 171 NLRB 1366 (1968), enfd 414 F.2d 99 (7th or. 1969), cert denied 397 U.S. 920 (1970) 18 MCC Pacific Values, 244 NLRB 931, 933 (1979). "On reinstatement, they do not become employees of their employer, for they have been its employees all along " Vulcan-Hart Corp. v. NLRB, 718 F.2d 269 (8th Cir. 1983). that :was ,,Signed _on. February 3, 1982. Because of their r v uc 1 '''this' a scussion, I here show paragraphs 4 and 5 as well:' 9 No reprisal Agreement. 3. Certain members of the Union chose to work during the strike and certain employees were hired during the strike. The Union, on behalf of itself and its members, agrees that there will be no retaliation or reprisals of any sort whatsoever against any such persons, whether in the form of charges, harassment or otherwise, and that all of the rights and privi- leges of Union membership shall be available to such persons on a non-discriminatory basis. 4. P&C agrees that it shall not discipline or dis- charge any strikers for strike-related conduct, nor take any other form of retaliatory action. Amnesty 5. It is agreed that all, pending legal proceedings which arose as a result of the strike, shall be termi- nated. Witnesses Carlson and Jones were in agreement in their testimony that the concept of a no-reprisal clause first was broached on February 2, when Jones was in- formed by Carlson that 12 replacement drivers had been hired. Jones ,knew that more replacement drivers were being interviewed, and wanted to limit the replacing. He asked Carlson what it would take to settle the strike, and Carlson told him that it was the terms of the agreement that he and Jones had agreed on but which the members had voted down. They then discussed various issues, after which Jones added the need for what Carlson heard as a "no retribution" clause, which Carlson took to mean a "no-reprisal" clause. Carlson said that he was not empowered to make a commitment on that issue then. Jones insisted that he needed it. Carlson then left, asking Jones to call him later. Instead, Carlson called Jones to tell him that a 13th re- placement driver had been hired while he was meeting with Jones. He then told Jones that he needed agreement on the key items or the hiring of replacements, which he had halted, would resume. Jones agreed to these items, consistent with the face-to-face discussion he had earlier with Carlson. But Jones reiterated that the contract had to include a no-reprisal clause. Carlson told him that they could do that, and was advised by Jones that there would be a union meeting the next day to vote on the agreement. They concluded with Jones asking Carlson to find one of the stewards. Carlson could not and tele- phoned Jones to tell him so. Jones asked Carlson to start calling the warehouse employees back in (many of whom were striking in sympathy with the drivers). Carlson did so, and also told Company Attorney Price about the agreement and what details should be in the written doc- ument, which Price was then to prepare. The next morning the Union voted to authorize what- ever agreement Jones would be signing. The papers were 19 Exh. 4, p 2, attached to Jt Exh. 1. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought over after the vote, and some language changes were made. The Union's attorney, King, noticed the lan- guage in paragraph 3, and met privately with Jones about it, because he objected to it. While Jones and King were meeting, Price entered and told them that he and Carlson had to be back at the plant in 20 minutes but that if the agreement were not signed by them there would be no deal. The full meeting resumed, with Jones signing the agreement but telling the Respondent's representatives that he would "take to court" the issues of the replaced drivers and the no-re- prisal clause. The question thus presented is whether Respondent re- fused to bargain in good faith by insisting, to the pomt of forcing the Union to sign a contract to avoid an impasse, on a nonmandatory provision, i.e., one dealing with the Union's discipline of its members. We start with the accepted proposition that this sub- ject matter is of a nonmandatory nature, and that insist- ing on it to the point of impasse is a violation of Section 8(a)(5) of the Act.20 This is what the Union charges and the General Counsel alleges. Moreover, because all the mandatory subjects of bargaining had been agreed to and the "no-reprisal" paragraph was the only remaining issue in dispute, under Nordstrom the Union would seem to be within its rights in wanting to conclude negotiations by agreeing on those mandatory subjects and disagreeing on the instant nonmandatory one. Thus, Respondent's action poses an issue left open in Nordstrom, whether "[c]ircumstances . . . exist where a party unlawfully in- sists on a nonmandatory subject's inclusion at a time when all matters have previously, and independent of the outstanding nonmandatory subject, been agreed upon."21 But I do not view the Union as being in a take-it-or- leave-it position. The concept of a no-reprisal clause was clearly its idea to begin with. As Carlson credibly testi- fied, when Jones suggested no-reprisals on February 2, Carlson thought that Jones was suggesting a quid pro quo buying of labor peace. Hence, his instructions to At- torney Price produced language on February 3 that com- mitted both sides to no-reprisals against employees who had and had not crossed the picket line to work, and committed both sides to a dropping of the ancillary law- suits that the strike had spawned. This joint undertaking is hardly beyond the pale, and under the circumstances it was not unreasonable for P&C to assume that this was an arrangement that both it and the Union could live with. To be sure, Price told Jones that if Price did not return with a signed agreement as presented there was no settle- ment of the strike. But the Union's chief concern was an agreement that would by its mere existence end the re- placement of drivers. That the Respondent used this to buy total labor peace did not create an impasse situation; instead, by buying peace it furthered the objectives of the Act. I dismiss this allegation of the complaint. CONCLUSIONS OF LAW 1. By replacing employees John Zion, Stephen Lip- pert, Mark Helinger, James Borchik, Thomas Cost, and John Boots, Respondent has violated Section 8(a)(3) of the Act. 2. By threatening with termination employees who were exercising their rights under Section 7 of the Act to picket, strike, or decide whether to refrain from so doing, Respondent violated Section 8(a)(1) of the Act. 3. By failing promptly to recall employees James Bor- chik and Thomas Ligoci, Respondent violated Section 8(a)(3) of the Act. 4. The unfair labor practices that constitute the viola- tions of Section 8(a)(1) and (3) of the Act have an effect on commerce within the meaning of Section 2(6) and (7) of the Act.22 5. The appropriate remedy for the foregoing unfair labor practices is to require Respondent to make the af- fected employees whole for wages lost, to cease and desist from such conduct, and to post a notice so indicat- ing. [Recommended Order omitted from publication.] 22 Respondent's principal location is in Syracuse, New York, from 20 Cf. Universal Oil Products Co. v NLRB, 445 F.2d 155 (7th Ctr where in 1982 it sold and distributed products with a gross value that 1971); Nordstrom, Inc, 229 NLRB 601 (1977). exceeded $500,000, and where it received goods valued in excess of 21 Id at 602. $50,000 that were transported in interstate commerce.