Hendrick Manufacturing Co.

310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hendrick Manufacturing Company and International Association of Machinists and Aerospace Work- ers, AFL-CIO, Local Lodge 1653. Case 4-CA- 15284 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 25 September 1986 Administrative Law Judge Thomas R. Wilks issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed excep- tions, a supporting brief, and a brief in answer to the Respondent's 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, i and conclusions only to the extent consistent with this Decision and Order.. The judge found that since about 1 March 1985 the Respondent bargained with the Union with the fixed intention of avoiding agreement and thereby bargained in bad faith with the Union in violation of Section 8(a)(1) and (5) of the Act.2 We find merit in the Respondent's exceptions to these find- ings and, for the reasons stated below, reverse the judge's conclusion. The Respondent manufactures perforated metal products that are used in radio grills, screens, etc. As of the fall of 1984 the Respondent maintained four plants. The main plant is located in Carbon- dale, Pennsylvania. Since approximately 1943, the Union has been the collective-bargaining represent- ative of the Respondent's Carbondale production and maintenance employees. The most recent col- lective-bargaining agreement' was effective from 1 August 1981 to 15 September 1984'. On 25 July 1984 the parties started bargaining for a new col- lective-bargaining agreement. Between 25 July 1984 and 18 December 1985 the parties engaged in 21 bargaining sessions and exchanged many written ' 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 The judge found that the economic strike that began on 28 Novem- ber 1984 was not converted into an unfair labor practice strike In light of our dismissal of the complaint in its entirety, we affirm the judge's findings 287 NLRB No. 33 proposals and amendments.3 Several of the meet- ings were attended by a Federal mediator.4 Fol- lowing the 21st bargaining session on 18 December 1985, no further meetings were held. As of the date of the judge's decision on 25 September 1986, the economic strike that began 28 November 1984 was still in progress. The complaint alleged, inter alia, and the judge found, that during the 14th through 21st bargaining sessions-' the Respondent bargained in bad faith with the fixed intention of avoiding agreement. The judge found that the Respondent's bargaining posture during these eight sessions bespoke a "vin- dictiveness" against the Union. The judge further concluded that the Respondent's poststrike propos- als were regressive and "calculated to impede the Union's effectiveness as an employee representa- tive." Our review of the record reveals insufficient evidence to support the judge's findings. In determining whether a party has negotiated in good faith, it is necessary to, evaluate the entire course of bargaining and all the relevant circum- stances. One such circumstance is the successful weathering of a strike. The Board has stated that "[w]here an employer's economic power increases through the successful weathering of a strike, it is not unlawful for the employer to use its new-found strength to secure contract terms that it deems ben- eficial."6 We find that during the 14th through 21st ses- sions the Respondent engaged in lawful bargaining and -that any toughening or regression in its bar- gaining posture was a direct result of its improved economic condition and its ability to survive the Union's strike. We do not find any evidence of vin- dictiveness in the Respondent's bargaining strate- gy.7 Because our view of the evidence differs from that of the judge, we find it necessary to examine the parties' course of bargaining and the economic conditions facing them. 3 The Respondent gave the Union documents on 25 July, 4 September and 30 October 1984, 31 January, 11 March, 25 May, 6 and 24 Septem- ber, and 6 December 1985 The Union gave the Respondent documents on 25 July, 6 and 9 September, 10 April and 10 December 1985 4 The Federal mediator attended the sessions held on 13 November 1984, 31 January 1985, and 13 June 1985 5 11 March through 18 December 1985 - 6 O'Malley Lumber Co, 234 NLRB 1171, 1179 (1978) 7 On 31 January 1985 during the 13th bargaining session, the Respond- ent and the Union reached agreement on art 4, new employees (the Re- spondent's proposal 3) They also reached agreement on the deletion of art 6, apprentices (the Respondent's proposal 4) They further reached agreement on art 10, wage rates, sec B (the Respondent's proposal 6) On 10 October 1985 during the 18th negotiating session, the parties reached agreement on several articles art 1, recognition, art 10, shift differential, art 17, pension plan, art 23, military duty, art 24, jury duty, art 25, safety (modified), and art 26, discrimination (modified) On 8 November 1985 during the 19th negotiating session the parties reached agreement on art 5, checkoff HENDRICK MFG CO 311 The Respondent has been in business since the 1940s. Since that time its employment level has de- creased from a maximum of 600 employees to ap- proximately 160-180 employees. In January 1982 the Respondent was adversely affected by the na- tional recession. The Respondent laid off some of its production employees and reduced, its clerical staff from 64 to 22 persons. The Respondent suf- fered financial losses throughout its entire oper- ation in 1982, 1983, and 1984. In the early 1980s, the Respondent's president, Benjamin Dunn, told the Union that the Respond- ent needed to have more flexibility in assigning em- ployees to jobs. Dunn told the Union that it was inefficient and costly to restrict the assignment of employees to available jobs. In its initial proposal to the Union on 25 July 1984, the Respondent requested extensive deletions and changes in the old collective-bargaining agree- ment, which would, result in lower costs. At the next two meetings, Dunn explained the Respond- ent's economic position and the need for greater flexibility and lower costs. Throughout the negotia- tions the Respondent argued economic hardship. Although the Union did not believe the Respond- ent was in economic difficulties, it never examined the Respondent's books." After the 12th bargaining session the Union voted to go out on strike., The Respondent used its management personnel and clerical employees to maintain its production, and later hired replace- ment workers. The Respondent found that a unit of 60 employees was sufficient to maintain a high level of productivity. This was approximately 30 fewer employees than had previously been retained to do the production and maintenance work. The judge stated that the Respondent "found itself in- creasingly able to operate with fewer employees, at a lower wage rate, and with all the flexibility that it desired." Our analysis of the facts shows that the post- strike bargaining sessions were not conducted in bad faith.9 The Respondent did toughen its bar- gaining position, but it never refused to bargain with the Union nor did it bargain in a vindictive manner. The Board has previously stated that "[a] 8 On 15 August the union negotiators asked to see all the Respondent's plants' financial records Dunn stated that only the Carbondale records were relevant The union negotiators did not ask to see the Carbondale records nor did they renew their request for the systemwide records The first formal union request for disclosure was made on 2 October 1985 when the Union's attorney asked for Carbondale's financial records and for systemwide data from 1983-1985 On 11 October 1985 the Re- spondent replied that the data would be made available to a certified public accountant selected by the Union The Union never responded to the offer 8 See Eltec Corp, 286 NLRB 890 (1987) Chairman Dotson dissenting in part on other grounds strike is a two-edged sword. Depending upon how it affects the employer's operations, the strikers may gain concessions or they may lose concessions previously obtained." 10 Through the successful weathering of the strike the Respondent was able to improve its bargaining position and to "raise the stakes" in its bargaining with the Union. We conclude that the Respondent met its bar- gaining obligation by meeting regularly with the Union, by presenting numerous written proposals, by explaining its position to the union negotiators, by agreeing to the presence of Federal mediators, and otherwise meeting its procedural obligations. We also note the parties had a 43-year bargaining history with no unfair labor practices since 1948. Accordingly, we dismiss the entire complaint. ORDER The complaint is dismissed. io Hickinbotham Bros, 254 NLRB 96, 102 (1981) Judith I. Katz, Esq.,'for the General Counsel. Sheldon Rosenberg,'Esq. (Rosenberg & Ujberg), of Scran- ton, Pennsylvania, for the Respondent. Kenneth Henley, Esq. ' (Sagot & Jennings), of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge. This case was tried at Wilkes-Barre, Pennsylvania, on 18 and 19 February and 24, 25, and 26 March 1986. The unfair labor practice charge was filed by International Associa- tion, of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 1653 (the Union), against Hendrick Manu- facturing Company (Respondent), on 30 August 1985. The complaint was issued by the Regional Director for Region 4 on 25 November 1985. The complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act during the course of negotiating a succeeding collec- tive-bargaining agreement with the Union as the employ- ees' designated bargaining agent, by bargaining in bad faith since 1 March 1985, and thereafter in that it negoti- ated "with no fixed intention of reaching a final and binding agreement" by "proposing and/or insisting on" certain specified contract provisions and by injecting a "proposal requiring ratification by its Board of Directors as a precondition to final agreement." The complaint also alleges that Respondent's employees engaged in a strike that commenced on 28 November 1984 that has been prolonged by Respondent's bad-faith bargaining. That strike is ongoing, and there has been no offer by any striker to return to work. The Respondent's timely filed answer admitted the procedural and jurisdictional complaint allegations. It ad- mitted its recognition of the Union's status as designated employee bargaining agent, and the existence of a series 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of collective-bargaining agreements with the Union. It denied that it engaged in bad-faith bargaining. The answer admitted the strike, but denied that it was pro- longed by bad-faith bargaining. The answer denied the majority status of the Union, but did not raise any argu- ment to counter the presumption of majority status aris- ing from the contractual bargaining history. At the trial all parties were given full opportunity to adduce relevant evidence. After the trial the General Counsel and the Respondent filed written briefs that were received by me shortly after 13 May 1986. The General Counsel's unopposed motion to correct the tran- script is granted. On the entire record, and from my observation of the demeanor of the witnesses, and the evaluation of their testimony as to internal and external consistency and ob- jective probability, and in consideration of the lengthy and exhaustive written briefs, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material, a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Pennsylvania, and engaged in the manufacture of perforated metal at its plant located at Seventh Avenue and Clidco Drive, Car- bondale, Pennsylvania. During the, past year, in the course and conduct of its business operations described above, Respondent sold and shipped products valued in excess of $50,000 directly from the plant to points out- side the Commonwealth of Pennsylvania. It is admitted, and I find, that Respondent is, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It is admitted, and I find, that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The issues are whether after 12 bargaining sessions in a period of 7 months and after it had successfully with- stood a strike that had commenced on 28 November 1984, "Respondent negotiated with no intention of reach- ing a final and binding agreement covering the [collec- tive-bargaining unit] by engaging in the following acts and conduct: (a) Proposing and/or insisting on contract provi- sions that would : eliminate superseniority for union representatives; require individual employees to sign their own grievances and restrict grievances signed by the union to those affecting the entire unit; re- strict grievance meetings to the nonworking time of individual grievants and union representatives; re- strict the scope of an arbitrator's authority to inter- pret the contract and limit the arbitrability of dis- charge, and safety and security disputes; eliminate a union-security clause; eliminate the description of union work jurisdiction from the contract's recogni- tion clause, eliminate any restrictions on Respond- ent's right to subcontract unit work ; include lan- guage referring to certain union conduct during the strike . . in the preamble to a safety and security clause; and, further limit access to the plant by union representatives. (b) Belatedly injected a proposal requiring ratifica- tion by its Board of Directors as a precondition to final agreement. B. Background Respondent has been in business since pre-World War II days. It manufactures perforated metal products for use in a wide variety of products, of which the major one is a sifting or screening material used in the process- ing of coal, rock, iron, copper, or other metal ore Other uses for its products are found in such items as micro- wave doors, radio grills, etc. As of the fall of 1984 Respondent maintained four plants. In addition to the main Carbondale plant, one was located in California, one in Kentucky, and one in Ten- nessee. These three additional plants involved production of products' dissimilar from that of the main production of the Carbondale plant and their employment level was a smaller fraction of the approximate 95 employees em- ployed then in the Pennsylvania plant. The employment level at Carbondale had gradually declined through the years from a war time maximum of 600 employees and a more normal level of 160-180 employees. The Union has maintained a collective -bargaining rela- tionship with Respondent for about 43 years, which cov- ered the production and maintenance employees. There is a history of only about three economic strikes for 15 successive contracts and no prior alleged unfair labor practices back to 1948. A national industrial recession adversely affected Re- spondent in late 1981, but it did not fully impact it until January 1982. Economic retrenchment necessitated the reduction of the 64 clericals employed to only 22 persons as well as the continuing layoffs of production employees that had commenced in 1981. In the face of economic losses, the most recent 3-year collective-bargaining agreement negotiated in the fall of 1981 called for an hourly wage increase for bargaining unit employees of about 55 cents in September 1982, and a 1-percent in- crease in February 1983, and 60 cents in September 1983. Financial losses were sustained by Respondent in 1982, 1983, and 1984 in Carbondale, and throughout the entire operation. After a 20-percent cut in pay was imposed on clerical employees, the president and chief manager of Respond- ent, Benjamin Dann, communicated with the Union and to the employees by way of correspondence and speech- es in which he explained the Company's economic trou- bles, its need for more flexibility in operations and costs relief, and requested employee cooperation for the sur- vival of the business. Dann offered to disclose to the Ot,Ion financial records to support his claim of need for HENDRICK MFG. CO. 313 economic relief. His plea of the Union's executive com- mittee to suspend the progression of wage increases in 1983 was rejected by a vote of the unit employees. Dann testified without contradiction about the greater flexibility in the assignment of employee tasks and less costs that were imposed on Respondent's competitors by their respective collective-bargaining agreements as re- vealed by his research of midsummer 1984. Dann testi- fied, without controversion, that the national recession impacted the less competitive Respondent well into 1985. In late summer of 1984, as Respondent approached the termination date of the collective-bargaining agreement due in September 1984, numerous grievances accumulat- ed, particularly with respect to the assignment of em- ployees allegedly out of their job classification as man- dated by the labor agreement. C. Contract Negotiations Preceding the Alleged Bad- Faith Bargaining Commencing on 25 June, 12 contract bargaining ses- sions were held in 1984 by the Respondent and union ne- gotiating committees. Respondent's chief negotiator, Dann, was assisted by Personnel Manager Judy Osnick and, until September, when he dropped out of negotia- tions entirely, Plant Manager Peter Muirhead. Represent- ing the Union were its chief negotiators, Business Repre- sentative Bill Cockerill and an employee committee con- sisting of Union President Frank Quinn, until his dis- charge and succession by Ronald Thomas in late 1984, William Watson, Samuel Cerra,' John Gardus, and Ed Thomas. Union Business Representative Gerry Smith substituted for the ailing Cockerill at three meetings in September, October, and November 1985. The meetings were conducted at off-plant sites, generally a local motel conference room. Meetings generally started in mid- morning and lasted no longer than shift end about 3:30 p.m. There is no evidence about any reluctance by Re- spondent to schedule and meet with the Union at reason- able times or reasonable durations. 1. Meeting one-25 July The two committees exchanged proposals and agreed that nonmoney items would be tentatively negotiated first and that pursuant to the Union's suggestion, meet- ings would not exceed 3:30 p.m. After a short period in which questions were exchanged and answered, the meeting adjourned early. The Union's proposal consisted of three pages. Essen- tially it incorporated the old contract with an increase in pay and benefits, i.e., a paid lunch period, an acceleration of vacation entitlement for new employees , an additional paid holiday, an increase in life insurance coverage, an increase in sick and accident benefits , an increase in du- ration for the period Respondent assumes the cost of 1 Thomas Smith, Cerra, Watson, and Thomas testified on behalf of the General Counsel Dann and Osnick testified for Respondent . Cerra's testi- mony was marked by hesitancy and uncertainty, and a frequent inability to recall. He was often uncorroborated or inconsistent with Thomas. When Cerra's testimony conflicts with the detailed and certain testimony of Dann and/or Osnick, I discredit Cerra when he is not corroborated with certainty by Thomas , whose own testimony was often uncertain, evasive, and hostile hospitalization and life insurance for higher seniority laid-off employees, an increase in the amount of life in- surance for high seniority retired employees , an exten- sion of insurance benefits to retired employees ' depend- ents, an increase in the pension plan benefits, an addition- al sick leave provision, severance pay, a $1 hourly rate increase for each year of a proposed 3-year contract, in- stitution of a dental care plan, a drug prescription plan, and several other minor benefits. The Union's proposal also included some changes to the old contract, incorporation of a "successors and as- signs" reference , an expanded prohibition against over- time during the layoff of any employee irrespective of department, elimination of a job performance qualifica- tion of a seniority right in job status change , a further re- striction on Respondent's ability to temporarily transfer employees to the least senior employee, a reduction of the minimum number of employees in a department nec- essary to warrant one or two grievance committeemen, and the addition of a second or third shift committee- man, a new provision to compensate employees involved in grievance meetings at a time and one-half rate beyond normal shift time, an expansion of the 2-paid hours per day, provided the union president for policing the con- tract to "whatever time necessary," and a similar in- crease in paid time for time spent by the department steward in policing the contract, the creation of a group leader position for any shift without a foreman, im- proved lighting and plant air circulation , and a prohibi- tion on the plant manager's access to the "production area" during normal shift hours. The Respondent's proposal contained extensive dele- tions and changes in the old collective-bargaining agree- ment. A summarization of these changes is as follows for each of the following articles : (1) elimination of recogni- tion of the Union's jurisdiction over the in -plant setting up, or repair of all machinery and its invariable assign- ment to employees ; (2) the elimination of a restriction against subcontracting of unit work during a time of em- ployee layoff; (3) a 91-day instead of 31 -day grace period for new employees obliged to join the Union ; (4) a 90- day instead of 30-day probation period ; (5) status quo on union dues checkoff; (6) elimination of the entire appren- tice provision; (7) greater Respondent discretion regard- ing shift hours; (8) a complete revision of the overtime provision regarding calculation ; (9) a change in the con- ditions and amount of reporting and call-in pay; (10) elimination of old job description; (11) reduction of shift differential pay; (12) elimination of a specified period for vacations and substitution of Respondent's discretion re- garding vacation scheduling to avoid complete plant shutdown in summer, a reduction in vacation entitlement for senior employees, elimination of a pro rata vacation pay entitlement schedule for laid-off or terminated em- ployees, and substitution with a precondition of a summer of 1850 straight-time hours in the previous cal- endar year for full vacation pay and pro rata pay in ac- cordance with a ratio of actual hours worked to 1850 straight-time hours; (13) a reduction of paid holidays from 12 to 10, and imposition of restrictions concerning entitlement; (14) restrictions concerning bereavement pay 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and elimination of an entitlement of an extra day if be- reavement period includes a holiday, (15) unspecified changes in the insurance provision; (16) a complete change in the contract article covering seniority, prefer- ence entitlement including the elimination of layoff se- niority preference, i.e., superseniority for the union presi- dent and department stewards, a substitution of job clas- sification seniority in layoffs for plantwide seniority pref- erence, the right to temporarily, transfer employees irre- spective of job classification or bargaining unit seniority but with a guarantee against loss of pay, (17) status quo on rights of transferred employees; (18-20) major revi- sions in the grievance procedure and arbitration provi- sions including the divestiture of the arbitrator's jurisdic- tion to "add to, subtract from, or modify any of the writ- ten clauses of the contract," a limitation of the arbitrabi- lity of discipline for strike misconduct to the issue of fact of culpability, but excluding the corrections of the nature of discipline; (21) status quo on amount of pension bene- fit but changed eligibility; (22) status quo on injured em- ployees, etc ; (23) status quo on payment of employees for time spent in negotiations during regular work hours, but a reduction of the employee committee from five to three employees; (24) deletion of the old contract bene- fits grandfather clause, (25) deletion of provisions grant- ing a degree of pay protection and job security for em- ployees incapacitated from performing their normal clas- sification work tasks; (26) status quo with respect to dis- cipline and discharge; (27) a strengthening of the no- strike clause by deletion of a specified exception for non- compliance with an arbitration decision and elimination of the exculpatory clause for nonauthorized work stop- pages; (28) strengthening of the management-rights clause particularly with respect to the subcontracting right previously limited to economic, justification and "capacity considerations"; (29) a deletion of provisions restricting layoff; (30-34) status quo on provisions con- cerning military duty, jury duty, safety and sanitary con- ditions, and discrimination, and finally (35) modification of the Union's right to reasonable plant access to one of privilege at Respondent's approval on application. 2. Meeting two-8 August The discussion at this meeting encompassed the pro- posals up to article 20. As conceded by Thomas, during the entire negotiations Dann gave explanations for Re- spondent's position, i.e., flexibility and costs, but in any event the union committee understood clearly Respond- ent's ostensible economic claims, but Thomas, for one, never accepted the truth of any assertion of critical need made by Dann, and the union committee most frequently did not bother to question or debate Dann's claims. Rather, the Union's negotiators insisted on retention of the old contract and the Union's counterproposals for the most part amounted to an insistence on nothing less than the old contract and an insistence that the changes would impair the Union's ability to police the contract, i.e., superseniority elimination Thus, at the outset of ne- gotiations in the second meeting, Thomas conceded that Cockerill announced that 'whatever was discussed re- garding Respondent's proposals, they would all be re- jected, as in fact proved accurate. '3. Meeting three-15 August The remainder of the Respondent's proposals were dis- cussed , and Dann gave an explanation of his position concerning the resulting economic relief these contract changes would effect, e.g., fewer grievance committee- men to serve a shrinking work force results in lower costs because of nonproduction paid time, a stronger no- strike clause would prevent a walkout of a type that oc- curred in the recent past, restricted plant access meant less disruption and loss of worktime prior to formal grievance sessions, etc. The Union proposed that costs could be cut by elimi- nating plant foremen and replacing them with work lead- ers who would be higher paid than coworkers, but who would remain unit members. Respondent rejected that proposal as impractical because it would eliminate line foremen under its control as statutory supervisors. With respect to plant access the Union argued that in the past, the union business representative did not enter into the plant directly, but rather through Osnick had arranged for employee committeemen interviews in the plant office. Nothing was agreed on, as the Union insisted on no diminution of the old contract's benefits, privileges, or protections, and that Respondent had sufficient flexibility under the terms of the old contract. Furthermore, as Cerra testified, the union negotiating committee took the position that monetary losses were not the employees' problem, but rather it was management's problem be- cause of mismanagement. The Union, he explained, therefore flatly rejected Respondent's claims that it could not live with the old contract. Thomas testified that he suspected that Respondent had manipulated the work level at the Carbondale plant by transferring work to other Respondent plants, but he failed to convincingly testify regarding a reasonable basis for this suspicion. However, he testified that the union negotiators during negotiations requested disclosure of financial records of all Respondent's plants, but that Dann replied that only the Carbondale records were relevant. The union nego- tiators did not ask to see the Carbondale records until well after the employee strike, and did not renew a re- quest for the other plant's records. The meeting ad- journed as the Respondent promised to submit its pro- posed new job descriptions at the next meeting. 4. Meeting four-16 August At the meeting Cockerill divided Respondent's propos- als into two categories The first category, he stated, re- lated to arguable flexibility and cost issues that the Union was willing to discuss. These included the proposals for articles 3, 4, 7, 8, 16, 25, 27, and 28 The second group- ing Cockerill labeled as "union busting" and as such he stated that the Union refused to discuss them. These in- cluded the proposals concerning articles 1, 2, 6, 9-14, and 18, which included subcontracting, apprentices, report in pay, job descriptions, vacations, holidays, and grievances. Dann reiterated Respondent's arguments for the need for operational flexibility and cost relief. Cock- erill insisted on the status quo, i e., with respect to the nonmonetary items, i.e., those areas exclusive of the Union's proposals concerning increased wages, etc. HENDRICK MFG CO 315 Cockerill suggested that perhaps the Union would exhib- it "movement" in subsequent meetings Dann announced that Respondent' would draft new job descriptions that would consolidate obsolete job descriptions found in the approximately 25 job classifications in the old contract, much in accord with Respondent's competitors' job de- scription. 5. Meeting five-4 September 1984 Dann presented the Union with the proposed new job classifications and explained how each would apply to the specific job situation. A few questions were raised by the union negotiators and answered by Respondent's rep-, resentatives. As an alternative to rejection, the Union suggested an open bidding period of all new jobs based on seniority that it calculated would affect only 20 per- cent of the new job classfications. Respondent found that idea to be "chaotic," because of the prospect of training senior successful bidders for jobs they are not competent to perform The Union's "heirs and assigns" clause was discussed, i e., the Union wanted contract language to bind a purchaser of the business. Dann refused, contend- ing that it would make the business unsaleable and that in any event there was no intention to sell out The sub- contracting language was not discussed. Respondent ex- plained that it desired to liberalize and clarify its prior contract right to subcontract in light of a recent lost ar- bitration case involving the subcontracting of punches. Dann argued that the Union's proposal on subcontract- ing overtime pay and seniority limited the operation more than the old contract. Dann and Osnick testified that Dann offered to accept the competitor's, National Standards Co., collective-bargaining agreement as a model' with respect to subcontracting because it con-, tained no restrictive language but that the Union did not respond. Cerra and Thomas testified that it was the union negotiators who offered the National Standard lan- guage and Cerra testified that Dann first accepted but later rejected that counteroffer. There is insufficient evi- dence in the record regarding the import of the National Standard language. A union-written counterproposal of 9 September refers to a prior unspecified subcontracting proposal by the Union. Because the Union originally sought no change in the original subcontracting lan- guage, it is probable that it must have made some sort of verbal subcontracting counterproposal on 4 September, and probably related it to the National Standard Ian-, guage, but its significance is not clarified in the record. Also discussed on 4 September was the Respondent's proposal to delete the apprenticeship article that it argued was unused, obsolete, and in nonconformance with state law. The Union refused to abandon the old contract language. It proffered no explanation. Also the Union refused to permit contractual permission for any overtime if any employee was laid off The Respondent argued that it did not want to be obliged to recall an em- ployee for a minimal amount of work of an hour or two and be forced to assume a guaranteed 4-hour pay under the old contract. The Union refused to suggest alterna- tives. 6 Meeting six-6 September 1984 The General Counsel asserts in her brief that at this meeting the Union submitted a written counterproposal "in which the Union proposed the terms of the expiring contract, and gave up many of its earlier economic de- mands." That document is more accurately described by Respondent as, in part, a rejection of many Respondent proposals, and a request that Respondent withdraw other proposals and return to the old contract with respect to articles 1, 6, 10, and 20 (recognition, mediation, appren- tices, and job classifications). With respect to strike and lockout' articles, the document concedes a need for change and professes a willingness to discuss the issues. The document expressed a union willingness to negoti- ate articles 18, 19, and 23 (grievances etc.). With respect to article 24 (benefits), the Union simply rejected Re- spondent's proposal. Concerning article 35 (union repre- sentation), it not only rejected Respondent's proposal of changes, but insisted without specification that the old language must be changed further to. the Union's advan- tage With respect to articles 9, 11-15, and 21 (report in pay, shift differential, vacation, holidays, insurance, pen- sion, death in family), the Union merely acknowledged Respondent's proposal of change and characterized the proposal as "monetary," to be considered subsequently. It is somewhat of an exaggeration to characterize this document as a counterproposal that abandoned substan- tial prior economic demands. At the meeting of 6 September several matters were discussed. With respect to vacations, Respondent's objec- tive was to eliminate the yearly shutdown of the entire plant. Union Negotiator Thomas suggested the use of, a "skeleton crew," and other union negotiators indicated a possible acceptance but at the cost of a deferred vacation with restrictions on Respondent discretion found unac- ceptable. The grievance procedure was also discussed, i.e , the paid work time allotted the Union for policing the contract. Respondent calculated a cost of $3000- $3500 in lost production time per day under the old con- tract, which it argued was not warranted for a unit of 85 employees actively employed by that date Respondent offered to meet at any nonwork time to negotiate griev- ances, etc., including pre- and postshift, break, and lunchtime. Osnick testified without contradiction that she had pending prior to the strike 75-100 grievances that chiefly related to alleged contract breach with respect to temporary work assignments. Thomas responded with a suggestion that union "negotiators" be compensated ac- cording to a "sliding scale " Osnick's bargaining notes re- flect that union negotiators made some "counter propos- als" but she testified without contradiction and in cor- roboration by Dann that these were more in the nature of suggestions tentatively raised in general discussion by individual negotiators, but that no formal counterpropos- al was tendered on behalf of the Union other than rein- statement of the old contract. According to Thomas' vague and uncertain recollection, at some unknown point the Union offered to reduce the number of stewards by one and the grievance committee to five members. Be- cause of his uncertainty, I do not consider his testimony an effective contradiction of Dann and Osnick. 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dann raised the subject of requested relief from the old contract mandate of automatic within -classification progression that incurs the expense of obligatory promo- tion to a "class A opeator [sic]," at the highest wage rate, despite the lack of business need for additional "class A" operators . The Union insisted on the old con- tract provision. Article 25 was discussed with respect to the mandatory utilization of debilitated workers and its allegedly burdensome cost . Relief was rejected by the Union. The Respondent grievance procedure proposal was discussed but no union counteroffer was submitted: The Respondent seniority proposal was discussed. Dann asked for a counterproposal , and he was provided one but did not receive one at this meeting. Cockerill asked the Respondent to identify what it considered its "impor- tant" proposals, i.e., priority proposals. Thomas testified that Dann responded that they were all important, but that "somewhere along in there" Dann did specify those proposals that he considered to be "more important than others." It is Dann's more certain and credible uncontra- dicted testimony that Cockerill asked him to withdraw some of Respondent 's lesser demands, to which Dann said that he would do so if the Union would reciprocate with "something on seniority," but that Cockerill made no reply and counteroffered ' no concessions on seniority. 7. Meeting seven-12 September 1984 According to uncontradicted, credible testimony, the following discussion took place. Dann requested that the union negotiators take time to review Respondent's pro- posals to enable them to make an intelligent counterpro- posal. After a lengthy caucus, Cockerill gave a disserta- tion on the militancy of the Union and that it would make no counterproposals . Specifically Cockerill stated that the Union would not counterpropose itself. This struck Dann as odd because it was Respondent 's propos- als that were being discussed . He insisted on it -union counterproposal and proceeded to review his' proposals beginning with article 1, and proceeded article by article. The Union reiterated rejection of Respondent 's proposals and retention of the old contract with respect to articles 1, 3, 6, and others. The Union offered a mutual with- drawal of certain proposals , e.g., articles 2 (subcontract-, ing) and 7 (hours of work) and retention of the old con- tract. In no event would the Union concede less than the old contract. During the lengthy discussion , Cockerill again asked for an identification of Respondent's priority proposals, and Dann responded than those relating to se- niority were considered most important and that the six least important dealt with apprentices , section B of vaca- tions; article 19, grievances; article 20, mediation and ar- bitration, article 23, payment of union negotiators; and article 35, dealing with plant access by the union busi- ness representatives. The Union asked Dann to submit a "final offer " Dann refused and stated that he wanted to continue discussions and to bargain, but that he needed a union counterpro- posal beyond an adamant insistence on no diminution of prior contractual rights. The-Union did offer to accept. some changes in seniority bumping rights if plantwide se- niority was retained for employees of 15 years seniority, but this was rejected 8. Meeting eight-13 September 1984 Expiration of the old contract was 2 days away. Union President Frank Quinn had been discharged for responsi- bility for an alleged wildcat strike. Cockerill indicated that there would be no acceptance of any Respondent offer unless Quinn was reinstated . Dann refused to nego- tiate the issue of Quinn's discharge, but insisted it be de- ferred to arbitration. Thomas asked for a final offer. Dann refused and insisted on further negotiations. Cock- erill suggested that if Respondent kept the unpopular Plant Manager Muirhead out of the plant , the Union would drop its reinstatement demand for Quinn. Dann insisted on a "legitimate" counteroffer . There was lengthy discussion with respect to Muirhead's value to the plant operation Cockerill offered to extend the old contract on a day-to-day basis for 30 days. Cockerill was scheduled to vacation for 2 weeks and therefore the union negotiators explained that they could not meet until October . Dann suggested that the union negotiators ought to reconsider the discussion and return and engage in "reasonable" negotiations . No agreements had been reached. 9. Meeting nine-3 October 1984 Several key issues were discussed , including Respond- ent's request for job transfers discretion irrespective of seniority. On that topic several suggestions were mutual-, ly exchanged . Dann expected to reach an agreement, but then Quinn suddenly announced that there would be no, departure from the old contract with respect to depart-- mental seniority rights. No other union negotiator chal- lenged Quinn, therefore the parties proceeded to discuss other minor issues. Thomas insisted that they cease "re- hashing" the issues and that Respondent submit a "final offer." Dann refused and asked for further negotiations. The Union insisted on a final offer to present to the em- ployees for a vote. Dann asked for time to prepare it, and the Union agreed to meet when Dann was prepared to submit one. 10. Meeting 10-25 October 1984 Respondent presented its final offer , but it did not in- clude a wage offer . The Union insisted that it include ev- erything, i.e., monetary as well as nonmonetary. The meeting adjourned in order that the final offer be made complete. 11. Meeting 11-30 October 1984 Respondent submitted its complete final offer, along with oral explanations . That offer reinstated layoff super- seniority for the union president who would be assigned to the day shift . It also reduced the requisite number of workdays prior to obligatory union membership from the proposed 91 to 61 , and the probationary period for new employees from the proposed 90 to 60 days. The wage proposal provided for raises varying per employee from 0 to 66 cents per hour and included a two-tiered wage HENDRICK MFG. CO. system that set starting wages at $5.50 per hour for mate- rial handlers up to $8 .90 per hour for layout mechanics. After a caucus, Cockerill counterproposed a 50-cent raise for each employee for each of 3 years, and status quo on fringe benefits and the remaining old contract provisions. However, Cockerill added that he did not expect the unit employees to ratify his counterproposal, but stated it would have a better chance than the final offer. It was rejected by Respondent. The Union requested arrangements for a Federal medi- ator at the next negotiation session. 12. Meeting 12-13 November 1984 On 4 November, the union negotiating committee pre- sented Respondent's final offer to the bargaining unit em- ployees who rejected it. Cockerill informed Respondent of the results and indicated a desire for further negotia- tions. A meeting was conducted under the auspices of Federal Mediator Charles McHugh. Neither side changed positions and the meeting adjourned without agreement regarding a future date of the next meeting. D. The Strike The Union authorized an employee strike that com- menced on 28 November 1984 and that has continued to date. Respondent continued its operations by the use of clerical and supervisory employees and commenced the hiring of permanent new workers as striker replacements. By 8 January, 12 replacement workers had been hired at a rate of $5 per hour . This increased to 30 new employ- ees at the end of January who, coupled with clericals and supervisors, amounted to a production unit of 45 em- ployees. Dann calculated that at the rate of productivity accomplished by the replacement workers, he now needed a maximum bargaining unit of only 60 employees. As of the date of the trial, he had achieved and main- tained that level. Dann boasted in his testimony regarding the satisfac- tory level of the replacements' abilities and their cooper- ative attitude and loyalty to management under circum- stances he described as a siege of the plant by hostile strikers, and during periods of picket line incidents. So enthused was Dann that he further attempted to rein- force employee morale by emulating the Japanese man- agement techniques, including oriental style in-plant joint management-workers physical exercise sessions. Both Dann and Osnick testified that virtually all the new em- ployees stated a preference for nonunion membership. No specific names or dates were mentioned by them. On 8 January in consequence of an alleged incident of picket line misconduct, Respondent discharged strikers A. G. Seaman, R. L. Bronson, E. A. Chubb, M. H. Snedeker, W. L. Henry, J. A. Teeple, J. Wearing, and Union President and Negotiator Ronald Thomas. Throughout January Respondent found itself increas- ingly able to operate with fewer employees, at a lower wage rate, and with all the flexibility that it desired. The employees became more productive, and the truckers progressively ignored the pickets. E. Collective Bargaining 1985 317 1. Meeting 13-31 January 1985 At the first bargaining meeting since the strike's incep- tion held under Federal mediation auspices , Dann pre- sented amendments to Respondent's final offer of Octo- ber. In his testimony Dann explained the reasons for Re- spondent's more aggressive bargaining posture as fol- lows. Dann calculated that in negotiations the greatest fear that moderated his original bargaining tactics was the fear of a possible strike and its debilitation of the business. Now in January 1985 he found that he not only survived the strike, but had done so with great success. On 31 January, he explained , Respondent found itself op- erating under the very terms and conditions that it had unsuccessfully sought in negotiations, i.e., lower wages, lower benefits' costs, lower operational costs, and with the full flexibility it had sought in a new contract, but that had not been achieved in negotiations. Accordingly, the January amendments proposed com- plete elimination of article 3, section A, of the union- shop provision; modification of article 3, section B, from permissive union solicitations during worktime on mutual consent to complete prohibition; article 4, probationary period of proposed 60 workdays changed to 480 straight- time hours; article 6 changed the October proposal that retained achieved seniority for "indentured" employees to complete elimination of apprenticeship language; arti- cle 8, overtime compensation reduced further to that re- quired by law; article 10, section B, language relating to compensation for newly created job classification wage rates subject to negotiations now provides that Respond- ent has complete discretion to set wage rate pending ne- gotiated agreement; article 16, section E, No. 5, the rein- statement of the earlier proposed elimination of layoff su- perseniority for the union president as well as the stew- ards; article 18, a requirement that every grievance must be signed by the aggrieved employee and that the Union's right to file a grievance is restricted solely to matters that "immediately and directly affects all bar- gaining unit employees"; article 19, the processing of all grievances is to be done solely during nonworking time; article 20, additional language relating to the restriction of an arbitrator's jurisdiction ; article 23 , complete elimi- nation of compensation for employees engaged in negoti- ations during regular worktime; article 25, complete elimination for any automatic progression within job classifications; article 30, the final offer that had limited the leave of absence retention of seniority rights for an employee engaged as a full -time business representative is further limited. The meeting was short. After separate caucuses Re- spondent explained its proposals, which aroused little questioning. Cockerill responded that the Union would not change its position with respect to Respondent's pro- posed changes in contract articles 1-3, 7, 10, and 11. Cockerill indicated that there could be negotiation on ar- ticle 8 (overtime compensation), article 12 (rate progres- sion), and article 14 (bereavement leave), but he prof- fered nothing specific . With respect to the wage propos- al, Cockerill merely responded that it was "open for dis- 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cussion." The Union then, discussed article 3 and agreed to accept Respondent's proposal as amended, i.e., 480- day probation on condition that the replacement employ- ees were also subjected to it. Respondent agreed, and thus was achieved the first agreement of a disputed arti- cle in the entire course of bargaining. Further, the Union also agreed to delete the entire apprentice provision, arti- cle 6, which had not been utilized in the last 10 years. The Union also offered to accept the proposed change as to article 10, section B, relating to compensation for newly created job classifications on condition that the fi- nally determined pay rate would be retroactive. Re- spondent accepted. Regarding article 30, the Union of- fered to accept the proposal if it incorporated a full term instead of a 1-year absence for a union office holder. Re- spondent rejected it The meeting adjourned 2. Meeting 14-11 March 1985-start of alleged bad-faith bargaining (10(b) period) By the date of the March meeting Respondent had continued to successfully hire and train additional perma- nent striker replacements . The exact number is not re- vealed. Dann testified that Respondent perceived its bar- gaining position to have substantially strengthened in that it was now fully operating under all' the conditions that it had sought in bargaining, and that he had unilater- ally' imposed during the strike. Dann testified that he therefore "codified" in a new proposal all the conditions under which the plant was now operating and presented them at this meeting that he had requested. This new proposal included further regressions from the October final offer, relating to, inter alia, report in pay, new em- ployee wage rates, holidays (one less), shift differential pay, insurance coverage eligibility, and accident and sickness benefits. None, of them are alleged in the com- plaint as indicia of bad faith. Dann represents that these proposals were required for Respondent to be competitive. " Thomas testified that the union negotiators were "dev- astated," by the second of two "disastrous" Respondent proposals. Cerra testified that they felt that the proposal was so regressive as to not warrant a reply Cockerill told Dann that he regarded the proposal as nothing more than a typographical error and announced that he would thereafter present a counterproposal. The meeting ad- journed. 3. Meeting 15-10 April 1985 Since the last meeting Respondent had hired an inde- terminate number of permanent striker replacements. It continued successful operation of the plant in the face of concurrent picket line incidents. At the April meeting the Union presented a written proposal, which it de- scribed to Dann as containing a variety of clauses taken from other collective-bargaining agreements from which Respondent could select what it desired: Cockerill stated that the Union would respond to the "open items" at the next bargaining session on condition that Respondent withdraw the two 1985 proposals and agree to reinstate the discharged strikers. Because the written counterpro- posal covered only the first 25 contract articles, Dann as- sumed that by "open items" Cockerill was referring to the remaining articles Cerra testified that because Dann had continually stressed Respondent's noncompetitive- ness, the Union had selected provisions from contracts with similarly situated industries and counteroffered those provisions. Dann protested that the Union's coun- terproposal ignored Respondent's 1985 proposals and merely addressed itself to Respondent's 1984 last offer. He accused the union negotiators of bad-faith bargaining. Dann insisted that Cockerill at least formally acknowl- edge the 1985 proposals. Cockerill responded that he would do so at a later date. Cerra testified that the union negotiators refused to consider the 1985 proposals be- cause they were "totally out of line." Dann concluded that the 10 April counterproposal merely amounted to a demand for the expired contract status quo. The Union's written proposal refers to a bargaining impasse as of 27 November 1984, 'and represents itself as a modification of "some demands" and a counterproposal to the Respondent's 1984 final offer. Respondent's 1985 proposals were ignored Except 'for some modifications, the Union's proposals were a reiteration of the old con- tract, including retention of the old job descriptions. It proposed a subcontracting clause from the Diamond Manufacturing Company that merely obligated a "rea- sonable effort" to avoid subcontracting of regular unit work. It rejected the 61-day union-shop grace period in favor of the old 31 days It offered a 45- or 40-day pro- bation period as it has for two named competitors. 'It of- fered to accept apprentices' provisions of competitors' contracts, as well as similar overtime and hours of work definition (i e., definition of workday and workweek), but insisted on its prior overtime proposal and the old wage rate language. With respect to paid vacation, it proposed a mutual withdrawal of outstanding proposals, i.e., a retention of the old contract. It insisted on an additional paid holiday. It proposed competitors' contract language about be- reavement leave that approximates the old contract. In- surance was excluded as a monetary issue It offered to discuss seniority at a later date. With respect to diver- gent proposals about grievances it merely stated, "we should be able to settle this." Concerning "Settlement of Disputes," article 19, it requested withdrawal of Re- spondent's proposals, i.e, retention of the old contract. It offered competitor contract language with respect to me- diation and arbitration that approximates the old con- tract. It deferred a proposal on the pension plan article as a monetary issue. It counterproposed a reduction of paid union employee negotiators from five to four, citing Diamond Manufacturing Company's four and Cross Manufacturing Company's three. It insisted on the old benefits clause and requested a withdrawal of Respond- ent's article 25 proposal regarding debilitated employees, i.e., it wanted retention of the old contract. 4. Meeting 16-13 June 1985 On 25 May 1985, Respondent decided to incorporate all its proposals up to March 1985 into one document, i e., a complete contract draft that it forwarded to the Union. In the meantime it continued operations with a HENDRICK MFG. CO. 319 near maximum level of employment of 60 unit employees and a continuing and growing willingness of delivery trucks to cross the picket line. With respect to its new- found flexibility, Dann exclaimed with open exuberance in his testimony, "it was a joy because we did have com- plete flexibility and we had people who were anxious to work" and "we were getting business ... we were more competitive." Although Dann and Osnick in their testimony charac- terized the 25 May proposal as a mere amalgamation of earlier proposals, it did contain significant modifications reflecting an even more aggressive bargaining stance. In article 2, new language provided discretion regarding hiring of summer help to perform unit work but to be excluded from the bargaining unit. New language also was inserted with respect to a multitude of articles. Of pertinent interest is an expanded management rights- clause that included the unqualified right to subcontract unit work and to assign unit work to supervisors. The proposals also added the following for the first time: Article 30-termination and reopening (1) This Agreement shall begin when ratified by the Union and the Company's Board of Directors, and shall remain in full force and effect for three years (3) from the date of ratification by the Company's Board of Directors. The meeting of 13 June was conducted by the media- tor at the request of the Union. The parties did not have a joint session. The Union submitted no counterproposals nor any questions but rather requested through the mediator that Respondent submit to the Union a written explanation of its 25 May proposals. 2 Respondent agreed and on 3 July 1985 for- warded a document to the Union, entitled "Company Amendment and Explanation of Proposal Dated May 25, 1985." That document is merely a recitation of each arti- cle and an identification of it as either the same language of the old contract or the same language of subsequent proposals, or new language. It is therefore a document of identification rather than explanation, except for the con- cluding paragraph that stated: The Company has met many times with the Union and the employees to elicit their help in making the Compamy [sic] more competitive by increasing pro- ductivity, modifying the restrictive clauses in the contract which have made the operation inefficient, and in holding down and reducing costs. The pro- posals made on May 25 were drawn up to accom- plish this and to reflect the realities of the current operating conditions. 2 Thomas, on direct examination, first testified that Respondent refused to answer questions, but insisted on submitting a written explanation. Then when asked further what occurred he flustered and said he could not recall what was discussed . On cross-examination he admitted Re- spondent was willing to fully explain its proposals at this meeting. In view of his inconsistency and uncertainty , I credit the testimony of Dann and Osnick on this point. Although Respondent's written "explanation" at best can be characterized as terse, it is clear from Thomas' testimony that the union negotiators fully understood what Respondent was trying to achieve by way of osten- sible cost reduction , but its claims of need simply were not believed . The union negotiators felt that Respond- ent's proposals were intended to "break the union," i.e., erode employee support of it by forcing it to agree to unacceptable substantive contract concessions and con- cessions inhibiting its representational functions. Thus few questions were raised by union negotiators at the bargaining sessions. The Union did not explain why it needed a written explanation before it could continue with bargaining. More enlightening as to the Union 's fail- ure to counterpropose particularly beyond article 25 is Thomas' admissions in cross-examination, after confron- tation with his pretrial affidavit , that the Union had made reinstatement of the eight discharged strikers a precondi- tion to further response. The Union modified this posi- tion at the 13 June meeting by indicating that it would negotiate beyond article 25, but that it still maintained re- instatement of discharged strikers as an important issue. Thus, if the Respondent's good faith is subject to ques- tions by virtue of its cryptic written response, the Union's motivation is open to some question by its with- holding a response until it received a written statement of questionable need. On 30 August 1985, the Union filed this unfair labor practice charge. 5. Meeting 17-6 September 1985 Attorney Sheldon Rosenberg replaced the absent Dann as chief Respondent negotiator. Union Internation- al Representative Gerry Smith substituted for Cockerill as chief union negotiator. Smith questioned Rosenberg concerning the proposed ratification clause reference to the Respondent's board of directors and, according to Smith's uncontradicted testimony , Rosenberg answered that he did not have "the authority to settle it, and that is what the Board of Directors wanted ." Smith told Rosenberg that this clause did not constitute a "bona fide offer." In cross-examination Smith confidently and con- vincingly insisted that Rosenberg did not explain that the outstanding offers were preratified , nor that only changes might have to be satisfied . Smith testified that he did not wish to get "hung up" on that item so he pur- sued other questions that he wanted answered, one in particular dealt with a definition of "new employee" with respect to the proposed two-tiered wage rates. He was satisfactorily assured on that point, and his other questions were answered. Smith told Rosenberg that in future negotiations the Union would be willing to make concessions with respect to wages and benefits, and stated that he wanted to negotiate a complete settlement. Rosenberg alleged to Smith that picket line misconduct was continuing and Respondent would therefore send to Smith an amended management-rights clause. At the meeting of 6 September , Respondent submitted addition- al written proposals that amended the 25 May proposal regarding article 25-safety and sanitary conditions- whereby Respondent agreed to furnish and maintain cer- tain safety and cleanliness items, e.g., toilet facilities, 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD soap, safety glasses, etc. The original contract obliged the Respondent to bear the cost of employee eye exami- nations and two sets of work clothes per year. The 6 September modification eliminated those benefits to re- flect Respondent's policy toward the striker replace- ments. Article 26-discrimination-dealt with a mutual obligation of both parties to foreswear discriminatory conduct. The meeting ended about 11 a.m. On 24 September, Respondent sent to the Union a document entitled "Article 21-Management Rights," that contained, inter alia, the following language after the section A.(1) language: Add new paragraph to read as follows: (1) Preamble (a) During the course of the Union's strike with the Company there have been numerous acts of damage and violence directed to the Company's real property, personal property and personal prop- erty of persons upon the Company's realty. Exam- ples of the foregoing are the Company's windows damaged by gun bullets or pellets, painting abusive words on Company property, damaging or destroy- ing automobile tires, throwing foul smelling milk or milk products in the entrance to the Company's building and other such acts. (b) As a result of the foregoing the Union and Company agree it is necessary for the security and safety of real and personal property, it is necessary for the health, safety and welfare of all persons and it is necessary for stability at the Company's plant and freedom from fear, violence and vandalism for the Company, its employers and other persons and property permitted on the Company property that the following clause be inserted in the collective bargaining contract. It should be noted that the "preamble" was enumer- ated as (1) for a series of numbered contractual sections. After that language followed immediately sections 2-7 language that reserved for Respondent sole discretion about safety, health, and property protection rules. In- cluded was the following: [5] (c) An arbitrator, shall not have the right or ju- risdiction to hear and determine a matter involving paragraphs 5(a) and (b) above [safety, health, wel- fare, property protection of all persons permitted on its premises]. Nor shall the arbitrator directly or in- directly have the jurisdiction to deal with the sub- ject matter covered by any Company substantive or procedural rule, regulation or practice whether ini- tially made or changed which the Company deter- mines is for "Company security or safety." (6) An arbitrator selected in accordance with the terms of this contract shall have the jurisdiction to hear and determine only the following questions: (a) did the employee(s) in fact violate any sub- stantive or procedural rule, regulation or practice which the Company determines is for "Company security or safety," (b) was the penalty imposed arbitrary and capri- cious. An arbitrator shall have no other jurisdiction (7) When determining the above questions the ar- bitrator shall not apply the discipline and discharge clause in this Contract nor any other clause in the Contract as this entire Article which deals with "Company security or safety" is independent of all other articles in this Contract. This proposal was appended to Rosenberg's covering letter in which he stated. The Preamble to the new paragraphs dealing with Company security and safety properly set forth the reason for the Company's proposal. '6. 2 October 1985 Throughout the negotiations up to this point, there had been no formalized demand by the Union that Re- spondent should in any way prove its claim of economic disadvantage in the operations of the Carbondale plant. The only request for financial disclosure appears in a cryptic reference in Thomas' testimony discussed above in earlier negotiations for disclosure of the entire sys- tem's records. It does not appear that any further chal- lenge was made to Dann's counterargument that only Carbondale's records were relevant, and no followup re- quest was made for records of any type. By letter dated 2 October 1985, the Union, by its, attorney Kenneth Henley, appears to have made the first formal demand that Respondent provide access to financial records to prove its claims of economic adversity by letter of that date to Rosenberg Henley requested financial data for the Carbondale plant and also systemwide data from 1983-1985 in order "that the Union can better under- stand the proposal that the Company now has on the table as well as to formulate its own counter-proposals to be made in the future." By letter dated 11 October 1985, a copy of which was sent to Thomas, Rosenberg responded'that the requested data would be made available to the Union for examina- tion by a certified public accountant selected by the Union at the offices of Respondent's accountant. The Re- spondent asserts that the Union never pursued this prof- fer, and the record fails to show that it made any effort to do so. The General Counsel has not alleged nor argued a refusal by Respondent to comply with a' rele- vant bargaining information request.' 7. Meeting 18-10 October 1985 After the September meeting Smith reviewed the 25 May proposal and concluded that he did not see any- thing unacceptable with respect to several articles. Ac- cordingly, at the October negotiations he read off a list of articles as proposed by Respondent on 25 May or thereafter that the Union would accept, including articles 1-recognition, 10-shift differential, 17-pension plan, 23-military duty, 24-jury duty, in addition 25 and 26 as modified by the September proposals. HENDRICK MFG CO 321 Smith stated that the Union rejected the recently amended management-rights clause. The Union clearly would not incorporate an admission of picket line mis- conduct into the contract Both Dann and Osnick testi- fied that it was not Respondent's intent to include the preamble into the body of the contract despite the obvi- ous appearance of such in its written presentation that structured it is as a "preamble." They testified that simi- lar explanatory passages not to be included in the con- tract were attached to other articles without misunder- standing. None of those give the same patent appearance of incorporation There is no evidence that Respondent at this meeting clearly stated to the union negotiators that they should disregard the obvious appearance of the draft. A dialogue occurred over the ratification by directors proposal. Smith testified credibly and without contradic- tion that he argued to Rosenberg that he ought to seek prior approval of his proposals from the Respondent's board of directors, but that Rosenberg answered that he could not and stated "this is the way it's got to be." Smith testified that Rosenberg's explanations of Respond- ent's other proposals were put in the same tenor. Smith asked Rosenberg what Respondent's most de- sired objective was and was told the right to temporarily transfer employees irrespective of seniority Smith testi- fied that he responded, "OK, you got it." To an incredu- lous Rosenberg, Smith reaffirmed his acceptance with full committee approval. Smith conceded in cross-exami- nation by Rosenberg at the trial that this issue had been indeed one of the most important. There is no doubt Re- spondent considered it to be crucial. With respect to Respondent's wage offer, Smith indi- cated to Rosenberg that the Union was willing to make some wage concessions, but it would not agree to a $5.50 rate ($5 for probationary employees) as compared with the old starting rate of $9 75 per hour Also discussed was the use of summer help but, after an exchange of suggestions, no agreement was reached, Smith offered to eliminate the entire grievance procedure in return for elimination of the no-strike clause. Rosenberg quickly re- jected the idea. Smith's offer was premised on the per- ception that Respondent wanted to make incursions on the arbitration process, while retaining what had been its quid pro quo, the no-strike clause. 8 Meeting 19-8 November 1985 Although Cockerill was present, this was the last meeting at which Smith served as chief union negotiator. Dann was no longer in attendance. At Rosenberg's re- quest, Smith reiterated the union agreement to transfers. Some progress was made with respect to the summer help issue, but agreement was not reached when the Union insisted that it would not agree to permit summer help when an employee in any classification was laid off. The Union also accepted Respondent's proposal on, checkoff. Smith suggested discussion of some of the Union's proposals Rosenberg raised the issue of the Union's bereavement pay proposals, which Smith testi- fied was "the least of the problems." No agreement was reached as the Union insisted on expanded coverage. When asked in cross-examination what monetary conces- sions the Union had made up to this point in negotiation, he cited the concession relating to uniforms and eye ex- aminations in article 25 that he estimated had cost Re- spondent about $100 per employee per year. Finally Respondent distributed a grievance and arbi- tration proposal that the Union read and on which it did not comment. It deviated from the 25 May proposal by eliminating much language and, on 6 December, was changed to state that each grievance "may" be signed by each grievant rather than "must." The complaint in this case issued on '25 November 1985. 9. Meeting 20-6 December 1985 Cockerill and Rosenberg were the chief spokespersons for the Union and Respondent. Smith was no longer in attendance. Pursuant to Smith's earlier agreement on temporary transfers, and his request for "streamlined" language in the seniority proposal, Respondent submitted a new draft of its article 15-seniority proposal. Re- spondent also submitted a new proposal for article 17- pension plan, because, according to Osnick's uncontra- dicted testimony, it became necessary to freeze pension plan benefits as of 1 January 1985 on advice from the In- ternal Revenue Service because there had been a break in service of the employees, i e., the strike. The Union had no objection to the pension plan proposal. The parties reviewed the seniority proposals. With re- spect to paragraph 1 of the proposed article 15, defini- tion of seniority as length of last continuous employment, Cockerill questioned the meaning of "last continuous em- ployment." In view of Thomas' failure to categorically and with certainty contradict Osnick, I credit her testi- mony that Cockerill then stated that the Union would not agree to this language until all discharged strikers had been reinstated Rosenberg explained that there was no connection between the two items and that the strik- ers were discharged for picket line violence (no unfair labor practice charges were filed with respect to these discharges). Cockerill insisted on a union caucus, after which he returned and directed his attention to the tem- porary transfer issue and demanded a written time limit for the duration of the transfer. Respondent pointed out that the transferred employee would earn the higher pay of the two classifications involved regardless of the clas- sification to which he was transferred, and partial agree- ment was achieved. The only area of disagreement regarding the proposed article 15 was about the point during a layoff when an employee would lose his seniority rights, i.e, the old contract provided 2-1/2 years in which Respondent pro- posed 1 year. Cockerill had counterproposed a pro rata formula that was rejected. Rosenberg promised to draft a tentative agreement regarding the agreed-on sections of article 15. He did so on 10 December 1985. 10 Final meeting 21-18 December 1985 According to Osnick's uncontradicted credible testi- mony, the following occurred at the meeting. The dis- cussion started with the topic of seniority. After some dialogue, Cockerill again asserted that the Union would 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not accept Respondent's proposal unless the eight dis- charged strikers were reinstated. Respondent's ratifica- tion proposal was discussed. Rosenberg stated that Re- spondent's intention was that the board of directors would preratify an offer, and also preratify just how far Rosenberg could go on an economic counteroffer. A counteroffer in excess of a certain point would entail ratification by the board of directors. Thus, Rosenberg changed the position that he had stated earlier to Smith. Cockerill insisted that Rosenberg reduce it to writing. On 20 December, Rosenberg sent such a statement by letter to Cockerill Rosenberg asked Cockerill what were the Union's conditions for a settlement and an end to the strike. After a caucus, the Union responded with a statement of two conditions. The first condition was the reinstatement of the eight discharged employees, and the discharge of all permanent striker replacements. Second was the rein- statement to the bargaining table of Respondent's wage offer of 30 October 1984. Respondent refused. The meet- ing ended. There is no evidence that either the strikers or the Union ever made an unconditional offer to return to work. F. Respondent's Bargaining Strategy Dann was responsible for the Respondent's bargaining strategy, and he testified concerning the motivation for its bargaining positions. According to Dann, his objec- tive was solely that of obtaining economic relief and competitive advantage from concession bargaining. With respect to the conduct that is alleged in paragraph 8 of the complaint to constitute sham bargaining, i.e., bargain- ing with a fixed intention of avoiding agreement, he testi- fied as follows 1. Superseniority Respondent, after years of employment attrition, was encumbered with an anachronistic collective-bargaining agreement that originally had evolved to accommodate a much larger work force. Now during times of economic losses the high costs of collective bargaining inherent in the contractual institutionalization of union representa- tion were sought to be reduced, as were all other possi- ble areas of nonproductive costs. With respect to super- seniority, Respondent concluded that seniority prefer- ence for one union president and six stewards to serve a reduced work force did not warrant the inhibition of its flexibility to retain the most skilled employees. Dann as- sumed that the Union could easily appoint a replacement steward. This assumption also presupposes the availabil- ity of effective, experienced, willing appointees. No testi- mony was proffered by Respondent of any past layoff situation when superseniority had actually effectuated the retention of a significantly less skilled employee, nor was there any evidence that during negotiations Re- spondent ever posed a hypothetical problem with respect to specific job classifications. 2. Individual signature execution of employee grievances and restriction of union grievances Dann testified he proposed some modifications as "bar- gaining chips" for the purpose of obtaining leverage to obtain cost item concessions elsewhere. Individual em- ployee signature execution of grievances and the limiting of union grievances to immediate unitwide impact issues, he stated were "bargaining chips." Dann claimed that it was his intention to withdraw that proposal in subse- quent bargaining, and did so in December 1985 with re- spect to individual signing of grievances. I disagree with Respondent's assertion that the slight change of wording in the 8 November proposal changed the second element. Union witness William Watson, a steward and member of the negotiating committee, admitted in cross-examina- tion that the Union raised no questions when the propos- al was first raised. In further cross-examination, he testi- fied that the union negotiators were all aware of the reason it was raised. He explained that a prebargaining issue of some duration had been raised between the par- ties concerning Respondent's perception that much time was "wasted" in the filing of individual grievances that Respondent viewed as a "problem." He also testified that Respondent had during negotiations accused the Union of having in the past processed individual grievances contrary to the desire of the individual employees in- volved. No foundation to this accusation appears in the record. 3. Restriction of grievance meetings to nonworking time of individual grievants and union representatives Dann characterized the motivation for this proposal to be economic. Of a 60-employee work force, grievance processing could encompass lost productivity for 10 per- cent of the work force, i.e., the grievant and five griev- ance committee persons for a series of meetings of about 1-1/2 hours for a total of $400. It is his uncontradicted testimony that Respondent offered to meet at any, non- working time acceptable to the Union. Although some rebuttal testimony was proffered to mitigate the extent of time consumed in the past, it is clear that it was a signifi- cant amount of lost production time in a time of econom- ic losses. However, the practical effect of such modifica- tion would have an adverse affect on the Union's ability to process grievances, and most likely fewer grievances would be processed probably by less experienced stew- ards because of the lack of superseniority. 4. Restriction on arbitrator's scope of authority Dann testified that the purpose of these proposals was to exclude from arbitrability the nature of the penalty for breach of the strike and lockout clause as set forth in ar- ticle 20 of the May proposal, in order to enhance compli- ance with that clause. Further, as reflected in the 24 Sep- tember proposal, Respondent sought to make nonarbitra- ble its proposed unilateral, substantive, and procedural rulemaking discretion relating to its security and safety defined in contract language as the conservation, protec- tion, etc., of safety, health, and property of "any per- HENDRICK=MFG CO sons," including employees, permitted on its premises. On being questioned by Respondent's counsel, Dann's proferred explanation for this proposal is: Well, this is a very serious matter with the Compa- ny-the protection of the employees and of the property. On the face of it, Dann's answer appears to suggest that Respondent does not wish to trust a very serious matter to the grievance-arbitration process. 5. Elimination of union-security clause Dann testified that the 60 employees who had crossed the picket line told him that they did not want to join the Union and that they asked whether they would be compelled to do so on contract agreement. He testified that he responded to each employee, "Not if I can help it." Neither he nor Osnick testified regarding the name of any nonstriker who made such remark, nor were any circumstances provided. The facts, however, reveal that Respondent first proposed an open shop in the 31 Janu- ary proposal, well in advance of obtaining a full comple- ment of employees Dann testified that at the end of Jan- uary Respondent had hired only 30 new employees. Be- cause they were hired on a gradual basis, it does not seem likely that all those 30 would have had sufficient time to have formulated such opinions and conveyed them to Dann. Furthermore , it is not clear whether Dann made his nonunion commitment to the 1st or 30th employee with whom he spoke in January. 6. Elimination of the description of union work jurisdiction from the recognition clause Dann testified without contradiction that sections C and D of the recognition clause of the old contract that relates to the 'making, repair, assembly, and dismantling of machinery and buildings dated back to World War II when about 550 employees were employed in armament production. At that time Respondent employed 25 ma- chinists, 6 plumbers, 12 carpenters, and 4 electricians. Presently it employs six machinists, two electricians, and no plumbers as such. A utilityman performs plumbing re- pairs, and carpenters construct packing crates and do no construction work. Dann described the unit employees as production persons who ought not perform the kind of maintenance work sought to be preserved. Dann related an account of a dispute with the Union with respect to the unloading of a purchased secondhand machine by the mover who had the use of specialized loading'equipment.' In settlement, Respondent was constrained to absorb the added cost of assigning unit employees to stand and oversee the professional mover's employees unload the machine. He described a similar incident in which Re- spondent was constrained to absorb unneeded extra costs. However, he conceded that the Union has accom- modated the use of nonunit outside' personnel but, on other occasions, it objected when those persons were found to have no possession of a union card. According- ly, Respondent's objective was to seek the elimination of unnecessary costs, delays, and problems arising from what Dann viewed as an outmoded jurisdiction clause 323 that seeks to conserve as unit work, job tasks that have since become alienated from the essential function of the production unit, i.e, production of perforated metal Thomas testified that this proposal would directly impact the very work that he normally performed, i.e., repair and setup of machinery , etc. In negotiations, Dann explained that he had better things for production em- ployees to do or that they were "overloaded." The union negotiators opposed this proposal because it would com- pletely eliminate the unit maintenance employees and that all maintenance work would thereafter be contract- ed out with no restraint. 7 Elimination of restrictions on subcontracting Dann testified that because of past subcontracting dis- putes that he described in detail, Respondent was uncer- tain about when subcontracting was justified and it there- fore sought greater clarification of its flexibility than had been achieved under a recent adverse arbitration deci- sion . The motivation in part was economic , i e, some work can be performed more cheaply and better by a subcontractor and some work can be temporarily sub- contracted to avoid recalling employees for a very limit- ed employment. However, it is also clear that Dann wanted to avoid the necessity of having to cope with the obligation of interpreting a contractual restraint of any kind concerning permissive subcontracting, i.e., he wanted to be free of any need to bargain about any par- ticular subcontracting decision Thus Respondent moved from a demand for greater subcontracting discretion, to one of complete autonomy. 8. Insertion of language relating to strike misconduct in the safety and security clause As noted above, Dann denied that the preamble in question was ever intended to be included in the con- tract. In view of the plain language of the proposal, I find such testimony disingenuous. 9. Limited plant access by union representatives This proposal did not merely seek to condition the right to plant access by the Union's representative to nondisruptive times. Rather, it sought complete Re- spondent discretion to prohibit access at any time irre- spective of any conditions. Dann admitted in his testimo- ny that there had been no actual plant abuse of this pro- vision of the old contract, but that when Business Repre- sentative Cockerill did appear he did so at the office and requested Osnick to arrange for his interview of an em- ployee in the office. Dann testified that he had felt con- strained to suspend the employees' work and had sent employees to such interview. This occurred, he vaguely testified, on a variable basis, sometimes weekly, some- times every 2 or 3 weeks, and it amounted to an unspeci- fied cost. Although the extent of time involved is disput- ed in general terms by Thomas, some production time had been lost during Cockerill's visits. However, as counsel for the General Counsel points out, the griev- ance processing language of the proposal does not ad- dress that problem. Rather, the problem that it does ad- dress is conceded to have never existed, i e., disruption 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of production caused by free access to the plant prem- ises. 10. Belated injection of a ratification proposal It is not the substance but the timing of this proposal that the General Counsel strenuously attacks. Dann testi- fied that in 1982 he hired and later placed on the board of directors a consultant to advise him in an effort to assure the survival of the business. At the outset of nego- tiations Dann was given "working room," particularly on the finances. After the commencement of the strike and the hiring of employees at $5 per hour, the consult- ant warned him to expect "considerable pressure" in ne- gotiations because of the departure from the much higher old entry level wage rates. The board of directors therefore decided that Respondent's negotiators would have a limit imposed on them as to how far they could negotiate an economic settlement without its directors' ratification. However, if agreement had been reached short of that limit, there was to be no necessity for ratifi- cation. Dann, who appears to have ultimate control over operations even to the extent of making the consultant a member of the board of directors, did not explain why it was necessary to be guided by. a full board decision in this rather than a quick telephone call to the consultant. Dann did not explain in his testimony the need for pre- cautions against union - bargaining "pressure," at a point when he had achieved his greatest confidence and high- est position of bargaining strength, nor did he indicate .why such need persisted as Respondent's bargaining strength continued in the ascendancy. F. Analysis 1. The alleged failure to bargain in good faith A summarization of the state of law regarding bargain- ing obligations is set forth in the recent and frequently cited Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), as follows: Under Section 8(d) of the Act, an employer and its employees' representative are mutually required to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . . but such obli- gation does not compel either party to agree to a proposal or require the making of a concession." Both the employer and the union have a duty to ne- gotiate with a "sincere purpose to find a basis of agreement," but "the Board cannot force an em- ployer to make a `concession' on any specific issue or to adopt any particular position." The employer is, nonetheless, "obliged to make some reasonable effort in some direction to compose his differences with the union, if [Sec.] 8(a)(5) is to be read as im- posing any substantial obligation at all." It is necessary to scrutinize an employer's overall conduct to determine whether it has bargained in good faith. "From the context of an employer's total conduct, it must be decided whether the em- ployer is lawfully engaging in hard bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of arriving at any agreement " A party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree. NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 467 (2d Cir. 1973). Although an adamant insistence on a bargaining position is not of itself a refusal to bargain in good faith, Neon Sign Corp. v. NLRB, 602 F.2d 1203 (5th Cir. 1979), other conduct has been held to be indic- ative of a lack of good faith. Such conduct includes delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargain- ing, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, with- drawal of already agreed-upon provisions, and arbi- trary scheduling of meetings. _ The Board will not directly or indirectly compel bar- gaining concessions "or otherwise sit in judgment on the substantive terms of collective bargaining agreements." Chevron Chemical Co, 261 NLRB 44, 46 (1982). Increas- ingly regressive bargaining proposals, however, have been found to be inimical to good-faith bargaining when they have been made without a proffered rational basis. Pacific Grinding Wheel Co., 220 NLRB 1390 (1975); Car- penters Local 1780, 244 NLRB 277, 281 (1979) A regression in economic position during bargaining is not of itself dispositive of the good-faith issue when eco- nomic considerations and the ability to compete motivate the regressive bargaining stance. Charles Oil Co., 267 NLRB 764 (1983). Furthermore, it is no manifestation of bad faith for an employer to change his bargaining pos- ture to one less favorable when he does so in "flexing economic muscle" in consequence of an intervening cir- cumstance, including the passage of time that strengthens his stance, e g., the successful withstanding of a strike O'Malley Lumber Co., 234 NLRB 1171, 1179 (1978); Deister Concentrator Co., 253 NLRB 358, 393 (1980); Barry-Wehmiller Co., 271 NLRB 471 (1984). In quoting Hickinbotham Bros., 254 NLRB 96, 102 (1981), the Board stated in Barry-Wehmiller, supra at 473, concerning an employer's proffered reasons for bargaining regression: "It is immaterial whether the Union, the General Counsel, or [the Administrative Law Judge] find these reasons totally persuasive." What is important is whether they are so illogical as to warrant the conclusion that the Respondent by offering them demonstrated an intent to frustrate the bargaining process and thereby precluded the reaching of any agreement. We do not find that to be the case here. Nor do we find that the Respondent's proposal can fairly be characterized as so harsh, vindictive, or otherwise unreasonable so as to warrant the conclu- sion they were proffered in bad faith [citations omit- ted]. In the O'Malley decision, the employer made economic concessions in bargaining prior to the strike, and thereaf- ter rescinded those concessions, as a consequence of a HENDRICK MFG CO 325 changed economic situation The key to the disposition of that case was the answer to the question whether the employer used its newfound economic power to try and obtain a lawful contract that incorporated "the condi- tions under which it had found it could successfully op- erate [during the strike]," or to frustrate agreement O'Malley, supra at 1179-1180, citing and quoting from World Publishing Co, 220 NLRB 1065, 1071-1072 (1975), enfd 545 F 2d 1138 (8th Cir 1976). In Hickinbotham, supra at 102, specific changes in circumstances caused by the strike motivated the rescission of prestrike conces- sions. In Barry- Wehmiller, supra at 472-473, the Board observed that modifications of proposals were attributa- ble to rescission of concessions specifically made during negotiations to avoid a strike, and that new proposals were due to circumstances directly caused by the strike, e g, the cost of paying employees for time spent in nego- tiations. The Board also, in evaluating the total circum- stances, considered the bargaining conduct of the union, which repeatedly failed to make requested proposals but rather merely demanded that the employer just give the union its "best shot " Barry-Wehmiller Co, supra at 472. In this case the Respondent's economically related proposals were ostensibly motivated by economic losses and noncompetitiveness. Respondent's early economic claims were not effectively or sincerely tested by the Union, which bargained with an equal adamancy up to the strike, and reacted even to mandatory economic sub- jects of bargaining as "union busting" proposals. Re- spondent's first proposal of July 1984, with respect to the alleged bad-faith proposals, was arguably premised on or related to cost savings or operational flexibility. Some of these proposals directly and necessarily impacted on the Union's representational ability. Most of its other propos- als related to economic objectives, with the exceptions of plant access and the grievance and arbitration provisions. The October 1984 proposal withdrew the rescission of the superseniority proposal regarding the union presi- dent. Respondent's poststrike proposals reaffirmed all the July 1984 proposals that impacted the Union's represen- tational abilities, including complete elimination of super- seniority. To those, Respondent, in addition to increas- ingly regressive economic proposals, demanded further incursions into the Union's representational contract rights Respondent's proffered justification for its pro- gressively harsher bargaining stance is solely its increas- ingly successful ability to operate with new management- loyal employees at the economic level that it had unilat- erally imposed during the postimpasse strike and without any of the restraints inherent in collective bargaining Dann's testimony falls just short of constituting an ex- plicit admission that he had no need and no desire for contractual agreement, and no motivation whatsoever to even try to obtain it. Of the alleged bad-faith demands, only the supersen- iority concession falls into the category of concessions offered to avoid a strike but rescinded after successful endurance of one. Concerning the others, the elimination of the union-shop provision was the only one that Re- spondent attempted to justify by pointing to a specific circumstance that arose during or because of the strike, i e, alleged disavowment of the Union by striker replace- ments. As found above, Respondent made its union-secu- rity clause demand too quickly to be given credence as one motivated by actual employee requests of a repre- sentative employee complement No other specific change of circumstances was identi- fied as a direct cause for any specific proposal modifica- tion. Although Respondent informed the Union that eco- nomic realities dictated its new bargaining proposals, there is no indication that they were necessitated by ad- ditional economic losses incurred as a result of the strike. There is no testimony as to lost sales, or loss of custom- ers. According to Dann, the more business operations improved, the more regressive became his demands. Dann testified that Respondent had asserted its newly ac- quired economic power to obtain economic objectives that it had not demanded initially in bargaining because of the fear of a strike. If the Respondent's bargaining posture were to be viewed as purely economically motivated, and based on a rational progression of events, I would be compelled to accept the proffered explanation, particularly in view of the Union's own rigid behavior that would otherwise scarcely allow for a clear test of Respondent's good faith However, Respondent's poststrike regression coincided with indications that the Union was about to make con- cessions, particularly when Smith became its chief nego- tiator Thus the 11 March regression followed new bar- gaining movement by the Union and its first acceptance of some of Respondent's proposals. The 25 May regres- sion was preceded by a union counterproposal of some, albeit not great softening of position, including the sub- contracting issue. At the 6 September 1985 meeting, Smith indicated a willingness to make wage and benefit concessions and he expressed a desire for complete set- tlement. Some agreements were reached. This was fol- lowed by Respondent's unacceptable strike violence pre- amble that patently had no utility other than to inflame the union negotiators At the 10 October meeting Smith made a significant concession on an issue of utmost im- portance to Respondent regarding temporary employee transfers irrespective of seniority, and indicated further a willingness to concede on wages although not as low as Respondent's proffered $5.50. At this meeting Smith of- fered to trade the Union's no-strike clause for the pro- posed weakened grievance procedure, but the Respond- ent insisted on its grievance and arbitration regression as well as a more rigidly enforceable no-strike clause. Respondent's economic regression not only is accom- panied by no specific economic need or change in cir- cumstance caused by the strike, other than newfound bar- gaining muscle, but it is also highlighted by proposals calculated to impede the Union's effectiveness as an em- ployee representative. Respondent had before the strike complained about the number of grievances that had been filed. Its perception of those grievances were that they were a waste of time and instigated contrary to em- ployee desires. Union representation amounted to an en- cumbrance on Respondent's flexibility of operation. Re- spondent's proposals, however, went much farther than 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD merely reducing the cost factor inherent in dealing with represented employees The proposals attempted to de- bilitate the employees' bargaining agent by reducing its grievance processing role. In particular, the limitation on the execution of grievances and limitation of processing only those grievances of immediate and unitwide impact related to no definitive cost factor, but rather dealt pri- marily with the Union's representational function and its relationship to the employees. This proposal is a clear at- tempt to preclude the Union from representing employ- ees who do not wish to be identified as grievance sign- ers, or from representing employees as a whole, or from processing individual or department level grievances, in effect a surrender of statutory duties. Further debilitations of the representational effective- ness of the Union were the grievance and arbitration proposals that precluded from that process a vast area of managerial discretion, but which insisted on retention and in reinforced form the original quid pro quo that had been given for the original grievance-arbitration system, i.e, the no-strike clause. Despite the profoundly serious impact of such a proposal, Dann in his testimony could only proffer the anemic explanation that the health, safety, and security of persons and property were a "seri- ous matter." The only other suggestion in the record for justification of this proposal is perhaps Respondent's dis- satisfaction with a single prior arbitration decision. Also without reasonable justification, Respondent injected into its proposals a premature demand for recessions of the union shop, an inflammatory strike misconduct preamble, the restriction of plant access proposal that addressed a nonexistent problem, elimination of superseniority, which had not been shown to have caused any specific past problems, and the belated directors ratification proposal. Perhaps these proposals were viewed by Respondent to be of the same nature as the grievance signing and proc- essing, proposals that it characterized as a "bargaining chip," of no inherent significant cost value. By utilizing bargaining chips that propose an erosion of the Union's representational and bargaining effectiveness to obtain concessions elsewhere, in effect Respondent contends that it intended to offer the Union the following option- "If you want to retain your present effectiveness as an employee bargaining agent, you must make economic concessions as we propose, and if you do not make such economic concessions then you must give up those con- tractual perquisites [sic] that allow you to fulfill your statutory functions." That is the thrust of Dann's testimo- ny. I find that such a bargaining posture bespeaks a vindic- tiveness that colors and provides an understandable and revelatory context for the remaining proposals alleged in the complaint as bad-faith proposals. These proposals are ostensibly rooted in economics, but they also accomplish other ends. The proposal to eliminate entirely the recognitional ju- risdictional clause shrinks the basic bargaining unit and precludes the Union as a basis from which it can act as conservator of bargaining unit work. The original sub- contracting proposal was, according to Respondent's witnesses, proffered because Respondent had lost a recent subcontracting arbitration decision Respondent thereafter expanded its objective from one of clarifica- tion and liberalization of its subcontracting rights in future subcontracting disputes, to one of obtaining com- plete discretion of assigning unit work to nonemployees, including assignment of unit work to supervisors f con- clude that the restriction of grievance processing to non- work time, coupled with the other proposed representa- tional restrictions, formed a block of proposals that were no mere bargaining chips. Because of the nature of their combined impact and the manner and timing with which they were proposed, I find that they were contrived in bad faith for the purpose of perpetuating nonagreement by inflaming the union negotiators and provoking them to even more rigid positions. I conclude that it was Re- spondent's intent to continue operating in the blissful manner so ebulliently described by Dann in his testimo- ny, -i.e., with loyal, nonunion employees and unfettered by operational inhibitions, time-consuming grievances, contractual interpretation disputes and all other irritating appendages to employee union representation, and under terms and conditions of employment unilaterally im- posed. Accordingly, I find that Respondent violated Sec- tion 8(a)(1) and (5) of the Act as alleged in the com- plaint. 2. Nature of the strike The complaint alleges that the strike was prolonged by the alleged unfair labor practice since about 1 March 1985. The General Counsel argues that the strike was then converted into an unfair labor practice strike as of that date. There has been no unconditional offer to end the strike and it continued. Respondent' s maximum em- ployment level is now set at 60 bargaining unit positions. At least 30 of those positions were filled as of 1 Febru- ary 1985. Strikers replaced after conversion to unfair labor practice strike status are entitled to immediate rein- statement, upon an unconditional offer to return, but those replaced before such event are entitled to place- ment on a preferential hiring list Ashe Brick Co., 280 NLRB 1383 (1986). To be deemed an unfair labor practice strike, there must be a causal relationship, in whole or in part, be- tween the unfair labor practices of the employer and the strike, and mere temporal coincidence does not suffice. Tufts Brothers, 235 NLRB 808, 811 (1978); Sedloff Pubh- cations, 265 NLRB 962 fn. 2 (1982); Brunswick Hospital Center, 265 NLRB 803, 814 (1982). Analysis must be made about whether bad faith at the bargaining table or, elsewhere, either in whole or part, causes or prolongs a strike. Whisper Soft Mills, 267 NLRB 813, 816 (1983). The facts must be evaluated to determine whether the surface bargaining conduct consisting of insistence on the specified proposals alleged in the complaint prolonged the strike, or whether the strike was maintained because the Union had locked itself into other issues such as the reinstatement of strikers discharged for picket line mis- conduct. The General Counsel introduced generalized testimony to the effect that Respondent's bad-faith proposals' al- leged in paragraph 8 of the complaint were reported to meetings of employees as they were made, and that the HENDRICK MFG. CO. employees rejected them. The evidence, however, also discloses that the strike was not maintained because of the failure to come to an agreement on all disputed issues. Thus, as Cockerill told Rosenberg, the strike would end if Respondent reinstated the eight discharged strikers, and returned to the bargaining table its wage offer of October 1984. Although the General Counsel's witness, Union Negotiator Watson, testified that the other issues were of "concern" to the Union, he also tes- tified that some of them "could be worked out," i.e., sub- contracting and restricted plant access, the latter of which, he testified, "would not keep us out on strike." The refusal of Respondent to reinstate the discharged strikers accused of misconduct was clearly a fixation of the Union's bargaining strategy to the exclusion of other issues during a good portion of the poststrike bargaining. That and the wage issue kept the employees on strike. Neither of these issues were alleged to have been the subject of proposals that constituted bad-faith bargaining. Finally, the Respondent had moved somewhat from sev- eral of its bad-faith proposals by the end of December 1985 after the complaint in this case had issued. Under all the foregoing circumstances and on my review of the entire course of bargaining, I do not find sufficient evidence that the Respondent's bad-faith bar- gaining intent, which was alleged in the complaint to have consisted of its insistence on specific, identified pro- posals, was sufficiently put to the test by the Union so as to justify a finding that it even partially prolonged the strike. CONCLUSIONS OF LAW 327 1. Respondent Hendrick Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, Local Lodge 1653, a labor organization within the meaning of Section 2(5)(d) of the Act, has at all times since 1 August 1981 been the exclu- sive majority employee-designated collective-bargaining agent for Respondent's employees in the appropriate bar- gaining unit consisting of all production and maintenance employees employed at Respondent's Carbondale, Penn- sylvania plant, excluding foremen, assistant foremen, plant inspectors, general bookkeepers, personnel direc- tors, office clerical employees, guards and supervisors as defined in the Act. 3. The Respondent, by engaging in negotiations with the Union about 1 March 1985 and thereafter with a fixed intention to avoid reaching agreement on a collec- tive-bargaining contract and thereby having bargained in bad faith with the Union, has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and (5) of the Act. THE REMEDY I recommend that Respondent be ordered to cease and desist from its unfair labor practices , to bargain in good faith with the Union, and to post an appropriate notice. [Recommended Order omitted from publication.]