Reichhold Chemicals, Inc.

REICHHOLD CHEMICALS 69 Reichhold Chemicals, Inc. and Teamsters Local 515. Case 10-CA-20331 March 17, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On November 22, 1985, the Board issued a Deci- sion and Order in this proceeding' in which it re- versed Administrative Law Judge Lawrence W. Cullen's findings 2 that the Respondent violated Section 8(a)(5) and (1) of the Act by engaging in surface bargaining and by insisting to impasse on a waiver of employees' statutory rights, and Section 8(a)(3) by permanently replacing striking employ- ees.3 Subsequently, the General Counsel and the Charging Party filed timely motions for reconsider- ation with supporting briefs, 4 and the Respondent filed a response to the motions. The primary questions presented by the motions for reconsideration are whether the Board should consider the content of bargaining proposals in de- termining whether a party has bargained in good faith, and whether an employer lawfully may insist to impasse on a waiver of employees' statutory right to seek redress from the Board for discipline imposed under a contractual no-strike clause. We have reconsidered this case in light of the briefs and the entire record, and have decided to modify the Board's prior decision and find that the Respondent violated Section 8(a)(5) and (1) by in- sisting to impasse on a nonmandatory subject of bargaining, i.e., the waiver of access to Board processes, which was part of its proposed no-strike clause. We, however, have decided to adhere to the Board's previous finding that the Respondent's overall conduct establishes that it engaged in lawful hard bargaining, rather than unlawful sur- face bargaining. In addition, we affirm the finding that the employees' strike was not an unfair labor practice strike and, therefore, the Respondent did not violate Section 8(a)(3) and (1) by permanently replacing striking employees. The Board's original decision in this case found that the judge improperly based his finding of un- lawful surface bargaining on the Respondent's in- , 277 NLRB 639. 2 The judge's decision is attached 3 The Board, however, affirmed the judge's finding that the Respond- ent violated Sec 8(aX1) by threatening employees with discharge and the futility of bargaining. 4 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America filed a brief as animus curiae in support of the motions for reconsideration. sistence on a broad, management rights clause, a narrow grievance definition, and a comprehensive no-strike provision, which included a waiver of access to Board processes. The Board held that the Respondent's adherence to these three proposals was not evidence of an intent to frustrate the col- lective-bargaining process. In reversing the judge, the Board stated that "Rpm Board will not attempt to evaluate the reasonableness of a party's bargain- ing proposals, as distinguished from bargaining tac- tics, in determining whether the party has bar- gained in good faith." On further reflection, we conclude that this statement is an imprecise description of the process the Board undertakes in evaluating whether a party has engaged in good-faith bargaining. Specifically, the quoted sentence could lead to the misconcep- tion that under no circumstances will the Board consider the content of a party's proposals in as- sessing the totality of its conduct during negotia- tions. On the contrary, we wish to emphasize that in some cases specific proposals might become rele- vant in determining whether a party has bargained in bad faith. The Board's earlier decision in this case is not to be construed as suggesting that this Board has precluded itself from reading the lan- guage of contract proposals and examining insist- ence on extreme proposals in certain situations.° That we will read proposals does not mean, however, that we will decide that particular pro- posals are either "acceptable" or "unacceptable" to a party. Instead, relying on the Board's cumulative institutional experience in administering the Act, we shall continue to examine proposals when ap- propriate and consider whether, on the basis of ob- jective factors, a demand is clearly designed to frustrate agreement on a collective-bargaining con- tract. The Board's task in cases alleging bad-faith bargaining is the often difficult one of determining a party's intent from the aggregate of its conduct. In performing this task' we will strive to avoid making purely subjective judgments concerning the substance of proposals. 5 277 NLRB 639 at 640 6 We disagree with our dissenting colleague's suggestion that this case, pending reconsideration, either was "held captive" or "languished here • . to no practical or beneficial purpose." Unlike him, we believe that some of the language in the original decision, together with its omission of a citation to Atlanta Hilton, could be arguably viewed by some as sig- nificantly modifying the law as to the Board's evaluation of the reason- ableness of a party's bargaining proposals. See, e.g., Mooresville IGA Foodliner, 284 NLRB 1055 (1987) (Chairman Dotson, concurring in part & dissenting in part); Boaz Carpet Yarns, 280 NLRB 40, 43 fn. 10 (1986) (Chairman Dotson finding it unnecessary and improper to analyze the substance of the parties' bargaining proposals). The supplemental decision filed today is an effort to eliminate the unintended uncertainty created in the wake of the Board's original Decision and Order. The fact is that the supplemental decision is not a purposeless exercise but is the product of careful, if extended, deliberations. 288 NLRB No. 8 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Each party to collective bargaining "has an en- forceable right to good faith bargaining on the part of the other." 7 Enforcement of that right is one of the Board's most important responsibilities. Indeed, the fundamental rights guaranteed employees by the Act—to act in concert, to organize, and to freely choose a bargaining agent—are meaningless if their employer can make a mockery of the duty to bargain by adhering to proposals, which clearly demonstrate an intent not to reach an agreement. with the employees' selected collective-bargaining - representative. The Board will not have fulfilled obligation to look at the whole picture of a party's conduct in negotiations if we have ignored what is often the central aspect of bargaining, i.e., the pro- posals advanced by the parties.8 As our colleague states, the Board's prior deci- sion in this case did not modify Atlanta Hilton & Tower9 and its "summary of legal principles," which include "unreasonable bargaining demands" as one of seven traditional indicia of bad-faith bar- gaining. Our colleague suggests that the "unreason- able bargaining demands" principle must be read in' light of the Ninth Circuit's statement in Seattle-First National Bank v. NLRB," that inferences drawn from bargaining proposals "are not alone sufficient to support" a bad-faith bargaining violation."- We note, however, that in its subsequent decision in NLRB v. Mar-Len Cabinets, 12 the Ninth Circuit ex- plained that, although caution must be exercised in inferring motivation from the content of bargaining proposals (659 F.2d at 999): Nevertheless, proposal content supports an in- ference of intent to frustrate agreement where, as here, the entire spectrum of proposals put forward by a party is so consistently and pre- dictably unpalatable to the other party that the proposer should know agreement is impossible. Consistent with the "legal principles" set forth in Atlanta Hilton, we intend to adhere to the general proposition that the content of bargaining propos- als will, in certain circumstances, be evidence of an 7 Eastern Maine Medical Center v. NLRB, 658 F.2d 1 (1st Cir. 1981). As the court in Eastern Maine Medical Center, supra at 10, observed: There is Indeed a tension created by asking the Board to judge the reasonableness of the bargainers, but not to supervise the substance of their bargaining The major resource making this tension tolerable is the agency's accumulated institutional experience in making pre- cisely those sorts of judgments. We thus do not lightly disregard the Board's informed judgment in the especially delicate task of judging whether, in context, a strategy of bargauung is more likely calculat- ed to obstruct agreement than to bring about the best compromise possible [Citations omitted.] '271 NLRB 1600 (1984). 638 F.2d 1221 (1981) " Id at 1226. 72 659 F.2d 995 (1981) intent to frustrate the collective-bargaining proc- ess." Nevertheless, having thoroughly reviewed the record in this case again, we reaffirm the Board's prior fmding that the Respondent's overall con- duct—including its proposals—establish that the Respondent engaged in hard bargaining, rather than surface bargaining. As noted in the Board's previous decision, the Respondent was willing at all times to meet and bargain with the Union, at- tended all scheduled meetings, fulfilled its proce- dural obligations, exchanged proposals, and shortly after the last meeting notified a Federal mediator that it was willing to bargain with the Union in March. During the course of 29 bargaining meet- ings held with the Union over a 13-month period, the Respondent made concessions that led to agree- ment between the parties on numerous subjects, in- cluding grievance and arbitration procedures, se- niority rights, job classifications and requirements, probationary period, layoff and recall, and safety and working conditions. In addition, the parties reached substantial agreement on provisions re- garding subcontracting and the substantive and procedural aspects of a disciplinary system. Although the Respondent—as was its right—ad- hered to its demands for comprehensive manage- ment rights and for no-strike provisions," it did make some movement on those subjects in an at- tempt to reach an agreement. Thus, on October 13, 1983, the Respondent offered revised management rights and no-strike proposals in direct response to the Union's identification of those two subjects as being among a number of "strike" issues." For ex- ample, the Respondent eliminated from its no-strike clause a prohibition against crossing a picket line, which had been opposed by the Union, and added language to the clause that provided for arbitration of the question of employee participation in an un- authorized strike. With respect to the management-rights proposal, the Respondent's October 13 modification deleted several provisions that the Union had identified as "strike" issues, including management's right to im- plement any of the enumerated rights without notice to, or negotiations with, the Union; the right to determine unilaterally various pay rate systems; the right to establish, revise, or discontinue rules and regulations; and the right to institute security- 73 See NLRB v. A-1 King Size Sandwiches, 732 F 2d 872 (11th Cir 1984), cert denied 469 US. 1035 (1984) 74 To the extent, however, that the no-strike proposal sought a waiver of access to the Board, we find infra that the Respondent's insistence to impasse on the clause was impermissible 73 At this bargaining session the Respondent also withdrew its pro- posed "More Favorable Provisions" clause, which had been listed as a "strike" issue by the Union. REICHHOLD CHEMICALS 71 related tests. Further, the Respondent added a paragraph that provided that the management- rights clause shall not be exercised in such a way as to conflict with any other provision of the con- tract. We note that, contrary to the General Counsel's contention, the Respondent's proposed grievance definition and revised management-rights clause are substantially similar to provisions in a contract agreed to between the Union's sister local and an- other employer. In fact, the Union agreed to the Respondent's proposed definition of a grievance on November 15, 1983, as part of the Union's package offer that was contingent on the Respondent's ac- ceptance of the Union's management-rights and un- authorized work stoppage proposals. Further, the record shows that the sister local's contract has a no-strike provision that, except for a waiver of access to the Board, is similar to that proposed by the Respondent in this case. In sum, we find that the Respondent did not demonstrate the kind of in- transigence or insistence on extreme proposals, which is evidence of an overall intent to frustrate the collective-bargaining process. NLRB v. Herman Sausage Co., 275 F.2d 229 (5th Cir. 1960), and A-1 King Size Sandwiches, 265 NLRB 850 (1982), relied on by the judge, are dis- tinguishable from this case. In Herman Sausage, the employer engaged in an extensive course of con- duct that, separate from its bargaining proposals, demonstrated its intention to avoid any collective- bargaining agreement. Specifically, the employer unilaterally granted a wage increase absent an im- passe in negotiations; added new demands when- ever the union agreed to its initial demands; and made statements to employees that effectively urged them to withdraw from the union and depend solely on the employer's fairness. The em- ployer in A-1 King Size Sandwiches presented a comprehensive package of proposals that sought to negate the union's fundamental representational role and, if accepted, would have left the union and the employees with substantially fewer rights and protection than they would have had if they had never gone to the bargaining table, but rather had relied entirely on the union's certification. Unlike those cases, here the Respondent did not seek to create a situation in which the Union would have no voice whatsoever concerning any facet of the employment relationship. Further, we adhere to the Board's prior conclusion that the su- pervisor's threat, which was found to be violative of Section 8(a)(1), as well as other supervisory statements cited by the judge, are not sufficient to establish that the Respondent intended to evade its obligation to bargain in good faith. As mentioned above, however, on further con- sideration we reverse the Board's previous decision and find that the Respondent violated Section 8(a)(5) by insisting to impasse on a nonmandatory subject of bargaining, i.e., the waiver of access to Board processes, which was part of its proposed no-strike clause. In addition to a waiver of employ- ees' statutory right to strike, including in protest of unfair labor practices, the Respondent's proposed unauthorized strike clause sought to have employ- eps forfeit their right to seek redress from the Board or other tribunal for discipline imposed under the clause on strikers who are replaced." The judge found that the dual waiver of unfair labor practice strikes and of access to the Board was a "non-permissive" subject of bargaining in conflict with public policy and that the Respond- ent's insistence to impasse on it constituted a viola- tion of Section 8(a)(5), separate from the surface bargaining violation. In reversing the judge, the Board's prior decision found that the proposed waiver of the right to engage in unfair labor practice strikes was a man- datory subject of bargaining on which the Re- spondent was entitled to insist to impasse. Further, the Board found that the proposed waiver of the right to resort to Board processes was a mandatory subject of bargaining because it "is merely deriva- tive of the waiver of the right to strike"—which clearly is a mandatory subject of bargaining. Thus, the Board held that the Respondent lawfully could insist to impasse on the waiver of the right to file charges with the Board. The Board relied in large part on the limited nature of the proposed waiver, noting that it applied only to replaced striking em- ployees and did not extend to any other possible appeals by employees to the Board on other mat- ters. We affirm the Board's prior finding that the pro- posed unfair labor practice strike waiver is a man- datory subject of bargaining. After further reflec- tion, however, we now conclude that the in futuro waiver of the right to Board access sought here is not a mandatory subject of bargaining because it is contrary to a fundamental policy of the Act and is unrelated to terms and conditions of employment. We agree with the judge's finding that the Re- spondent insisted to impasse on this waiver, and therefore we find that the Respondent violated Section 8(a)(5). The Board and the courts have long recognized that there is an "overriding public interest" in "un- le The Respondent's proposed no-strike provisions are set out as Ap- pendices B and E of the judge's decision. 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD impeded access to the Board."" Notwithstanding that the literal scope of the proposed waiver is narrow, we find merit in the General Counsel's contention that the waiver could have an improper chilling effect on the filing of charges in situations where the purported waiver would be ineffective. For example, employees may be deterred from seeking redress from the Board in circumstances where the discipline imposed pursuant to the no- strike clause is discriminatorily applied or is simply a pretext for retaliation for engaging in other pro- tected activity. We are not persuaded otherwise by our colleague's assurances that employees would be able to ask a Board agent about the waiver. Board agents are not permitted to give legal advice and it is unclear just how much information about the waiver a Board agent could give an employee prior to the filing of a charge and investigation of the merits. In any event, employees likely would read the waiver as foreclosing all recourse to the Board concerning discipline linked to the no-strike clause, and thus there is a strong probability that employ- ees would not even make such an inquiry. Further, the proposed waiver does not satisfy the test for mandatory subjects of bargaining set forth by the Supreme Court in NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). Closer examination of the proposed waiver of resort to the Board shows that it "settles no term or condition of employ- ment"" and does not regulate the relations be- tween employer and employees in the manner con- templated by the Court in finding no-strike clauses to be mandatory subjects of bargaining. According- ly, we find that the Respondent's continued insist- ence through the final four bargaining meetings on the nonmandatory subject of waiver of access to the Board violated Section 8(a)(5)." The judge found that the employees' strike in April 1984 was an unfair labor practice strike be- cause its primary focus was to protest the Respond- ent's "inflexible stand at the bargaining table con- cerning its management rights, grievance, and no- strike proposals, including its proposal that the em- ployees waive their statutory rights." Accordingly, he found that the Respondent violated Section 8(a)(3) by permanently replacing 27 striking em- ployees who had made unconditional offers to return to work. In view of our dismissal of the sur- face bargaining allegations, we must determine whether, standing alone, the Respondent's unlawful insistence on its proposed waiver of recourse to the 17 NLRB v. Shipbuilders, 391 U.S. 418, 424 (1968). See also Operating Engineers Local 138 (Charles S. Skura), 148 NLRB 679 (1964); Iron Work- ers (Walker Construction), 277 NLRB 1071 (1985) 18 Borg-Warner, supra, 356 U.S 342, 350. 19 We find it unnecessary to decide whether this proposed waiver was an illegal, as distinguished from merely permissive, subject of bargaining. Board was, at least in part, a contributing cause of the employees' strike. Contrary to the judge, we conclude that the strike was not an unfair labor practice strike. The Union conducted two strike votes: one on August 2, 1983, and one on April 1, 1984. The Respond- ent's contract proposals were discussed at both meetings. Though the testimony shows that the proposals were discussed in detail, there is no evi- dence that the waiver of recourse to the Board was ever specifically mentioned. The various proposals were discussed orally at both meetings, thus the employees did not have copies or any other written summarizations of the Respondent's proposals before them as they voted on the strike issues. According to the credited testimony at the August 2, 1983 meeting, the Union's president told employees that he did not feel the employees could get anything without a strike. The president told the employees about the proposals that were still left on the table. In particular, he discussed the Re- spondent's proposals on management rights, the grievance procedure, the no-strike clause, inspec- tion rights, and the stewards' rights and responsibil- ities. When discussing the no-strike clause, the union president told employees that the no-strike proposal would prevent a strike for any reason whatsoever or the honoring of a picket line of any kind. The union president's feelings were clearly communicated when he told those present that no self-respecting union would sign such a contract. Convinced by the president's arguments in this regard, the employees voted unanimously to strike at that meeting. The Respondent's proposal limiting employees' access to the Board was incorporated into its no-strike clause proposal. Thus, even though the no-strike clause was discussed in some detail at the August 2, 1983 meeting, and even though the union president took pains to specifical- ly outline what portions of the no-strike clause were unacceptable to the Union, nothing was said about the waiver provision in the no-strike clause. Eight months later on April 1, 1984, still frustrat- ed by the progress of negotiations, the Union once again met with employees to take a strike vote. The union president told employees that the Re- spondent's language was unreasonable and outra- geous. The union president told employees that there were items in the management-rights clause and the no-strike clause that he had never seen pro- posed before. He told those present that if the Union agreed to these proposals they would not have a significant labor agreement. Once again, the employees voted unanimously in favor of a strike. Though there were seven witnesses who testified about the strike-vote meetings, not one testified REICHHOLD CHEMICALS 73 that anything was said about the Respondent's pro- posed waiver of employees' rights to go to the Board. The record in this case establishes that the em- ployees voted to strike because of their frustration with the Respondent's proposals regarding manage- ment rights, the definition of a grievance in the Re- spondent's proposed grievance and arbitration pro- cedtre, and the provisions of the no-strike clause which would prevent employees from honoring an- other union's picket line or from going on strike for any reason. On our review of the totality of the circumstances in this case, every one of the propos- als discussed by the Union at the strike-vote meet- ing has been found to be acceptable. In the absence of any evidence that the strikers even knew about the Respondent's proposal regarding a waiver of access to the Board, we are unwilling to infer from the record evidence in this case that one of the rea- sons for the strike was the strikers' desire to protest that particular proposal. In so finding we are cognizant of the credited testimony by the union negotiator that at a Septem- ber 15, 1983 negotiating session he designated the Respondent's proposed waiver to the Board as a strike issue. However, the union negotiator did not thereafter call a strike on his own initiative without further consultations with the membership. Rather, a subsequent union meeting took place on April 1, 1984, and resulted in a vote to strike. Thus, the in- formation on which the employees acted when they voted to strike is what is crucial in determin- ing if there is a causal connection between the Re- spondent's insistence on a waiver of employees' rights to go to the Board and the determination to strike. In light of our finding that this proposal was never discussed with employees at either of the strike-vote meetings, we decline to find that this proposal played any part in the employees' decision to strike. Thus, on the facts before us, we conclude that the General Counsel has not established the requi- site causal connection between the Respondent's unlawful conduct and the employees' decision to strike. See Burlington Homes, 246 NLRB 1029 (1979). Accordingly, we affirm the Board's previ- ous reversal of the judge on this matter, and find that the Respondent did not violate Section 8(a)(3) by permanently replacing the striking employees.20 20 Our dissenting colleague's characterization to the contrary notwith- standing, we see nothing "ironic" in our finding that the proposed waiver of recourse to the Board may have an improper chilling effect on em- ployees' filing of charges, but that this proposal was not a cause of the employees' strike. The questions of whether a bargaining proposal is a nonmandatory subject of bargaining and of whether there is a causal con- nection between that proposal and an ensuing strike are distinguishable issues which turn on different standards of proof and legal theories. It is not inconsistent to conclude that an employer was not entitled to insist to In light of the foregoing, it is apparent that in certain important respects the Board's previous de- cision in this case was flawed and did not properly focus on the issues presented to the Board. While this causes consternation, we are mindful that "wisdom too often never comes, and so one ought not to reject it merely because it comes late."2 Accordingly, the motions for reconsideration are granted, and the earlier decision here is vacated. ORDER The National Labor Relations Board orders that the Respondent, Reichhold Chemicals, Inc., Ken- sington, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening its employees with discharge or other reprisals if they engage in concerted activities on behalf of the Union, or with the futility of their continued support of the Union as their bargaining agent. (b) Refusing to bargain in good faith with any union that is the certified or recognized collective- bargaining representative of its employees by insist- ing to impasse on the waiver of the employees' statutory rights to seek redress from the Board for discipline imposed under a no-strike provision. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with any union that is the certified or recognized collective-bargaining repre- sentative of the employees22 in the following ap- propriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. The appropriate unit is: All production and maintenance employees employed by Respondent at its Kensington, impasse on a proposal because, inter alia, of its potential effect on em- ployees and also to conclude that this proposal was not discussed with employees at strike-vote meetings. Neither does the finding that an em- ployer unlawfully Insisted to impasse on a proposal compel a finding that this unlawful conduct contributed to the employees' strike. The employ- ees' lack of awareness of this proposal during negotiations does not di- minish the effect that the proposal may have had on them if implement- ed. 21 Henslee v. Union Planters Bank, 335 U.S. 595 at 600 (1949) (J. Frank- furter dissenting). 22 The Respondent has averred in its response to the motions for re- consideration that the Union was decertified in January 1986 as a result of an election held in June 1984. This issue was not litigated, and there is no record evidence concerning this matter. Accordingly, we shall leave for the compliance stage the determination of whether the Union or any other union is currently the exclusive collective-bargaining representative of the unit employees. 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Georgia, facility, including lab technicians, but excluding all office clerical employees, profes- sional employees, technical employees, guards, and supervisors as defined in the Act. (b) Post at its facility in Kensington, Georgia, copies of the attached notice marked "Appen- dix."23 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER JOHANSEN, dissenting. The judge's decision issued in May 1985. Some 6 months later, we issued our decision. In January 1986, the General Counsel and the Charging Party moved for reconsideration. The case has languished here for over 2 years since then to no practical or beneficial purpose, held captive for reasons best known to the majority. Had the motions been re- jected, the parties could long since have had judi- cial review. Notwithstanding the amount of time the majority has had to consider these motions, the finding of no bad-faith bargaining is the same and the ration- ale appears to be, if anything, a "fine tuning" of the decision. The original decision stated (277 NLRB at 640): The Board will not attempt to evaluate the reasonableness of a party's bargaining propos- als, as distinguished from bargaining tactics, in determining whether the party has bargained in good faith. Accordingly, the Respondent's insistence on broad management-rights and no- strike clauses with a restrictive grievance pro- vision is not evidence of an intent to frustrate the collective-bargaining process. As the counsel for the General Counsel concedes in his brief on reconsideration, this rationale indeed followed and expressly relied on the statement in Rescar, Inc.,' that "[lit Is not the Board's role to sit 23 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 274 NLRB 1(1985) in judgment on the substantive terms of bargaining, but rather to oversee the process to ascertain that the parties are making a sincere effort to reach agreement." At the end of that quote the Board in Rescar cited to Atlanta Hilton & Tower2 and refer- enced its "summary of legal principles," which in- cluded "unreasonable bargaining demands" 3 as one of seven traditional indicia of bad-faith bargaining. In quoting from Rescar, the decision inadvertently omitted the citation to Atlanta Hilton. The decision did not modify Atlanta Hilton or Rescar. On the contrary, I will continue to review bargaining pro- posals to the extent that they relate to bargaining tactics, as evidence of the totality of circumstances of bargaining. Consistent with Atlanta Hilton and other precedent, 4 however, I would not find an 8(a)(5) bad-faith bargaining violation based on the content of allegedly unreasonable bargaining pro- posals viewed in isolation from the context of ne- gotiations.3 The reference in Atlanta Hilton to "unreasonable bargaining demands" itself included an explanatory footnote citation to NLRB v. Holmes Tuttle Broad- way Ford, 465 F.2d 717 (9th Cir. 1972). In Holmes Tuttle, the parties had bargained for at least 10 ses- sions when the union withdrew its own proposals and offered a contract incorporating the employer's extant proposals. In response, the employer raised numerous stylistic and typographical objections to the proposed contract and for the first time pro- posed that the contract should be of only 7 weeks' duration (the time remaining in the union's certifi- cation year) in light of an alleged but unfounded doubt of the union's continuing majority support. Describing the employer's conduct as a "cat and mouse game" that was the "exact opposite" of good-faith bargaining, 6 the Ninth Circuit gave lim- ited approval to Board examination of the reason- ableness of the employer's bargaining proposals. It was clearly concerned, however, not with the sub- stantive reasonableness of the proposals, standing alone, but with the totality of bargaining circum- stances indicative of the employer's state of mind, including the reasonableness of the tactic of making those proposals at that time in the course of the ne- gotiations. As subsequently explained in Seattle- 2 271 NLRB 1600 (1984). ' Id at 1603. 4 E g., Browning-Ferris Industries, 275 NLRB 71 (1985), Hamady Bros. Food Markets, 275 NLRB 1335 (1985); Hedaya Bros., Inc. 277 NLRB 942 (1985) 5 Accord: Struther Wells Corp v NLRB, 721 F.2d 465, 470 (3d Cir 1983); Seattle-First National Bank v NLRB, 638 F.2d 1221, 1226 (9th Cir. 1981), also see H K Porter v. NLRB, 397 U S. 99 (1970) (Board may not judge substantive terms of collective-bargaining agreements), and cases cited. 6 465 F.2d at 719. REICHHOLD CHEMICALS 75 First National Bank v. NLRB, supra (638 F.2d at 1226): While this court has sanctioned the Board's consideration of the content of bargaining pro- posals as part of its review when making a de- termination as to the good faith of parties ne- gotiating a contract, NLRB v. Holmes Tuttle Broadway Ford, Inc., supra, 465 F.2d at 719, in- ferences drawn from those proposals are not alone sufficient to support a finding of a viola- tion of the obligation to bargain in good faith. As for the part of the proposed no-strike clause seeking a waiver of recourse to the Board, the original decision found that the proposal was a mandatory subject of bargaining because it "is merely derivative of the waiver of the right to strike"—which clearly is a mandatory subject of bargaining. It is clear, and should not have to be reiterated, that the proposed waiver is limited to replaced striking employees and "does not extend to any other possible appeals -by employees to the Board on other matters." Thus, the proposed waiver would not apply to a situation in which an employee was alleging that discipline imposed under the no-strike provision was discriminatory or pretexual. Further, the proposed waiver does not preclude an employee from seeking information or assistance from the Board's agents regarding the waiver. If the Respondent retaliates against an employee for making such an inquiry, a violation of Section 8(a)(4) may be found. The only employees who would arguably forfeit their right to resort to Board processes are those who are properly disci- plined for engaging in unprotected activity by breaching the no-strike pledge. Accordingly, to the extent that this narrow provision might be charac- terized as limiting employee access to the Board, it more properly should be viewed simply as a redun- dant statement of the waiver of the right to strike. It is ironic that the majority finds this clause dis- tasteful because of its "chilling effect," yet finds the strike not to be an unfair labor practice strike. It appears that although the Respondent's proposals were discussed by the union membership on two occasions, "there is no evidence that the waiver of recourse to the Board was ever specifically men- tioned." Thus, the majority does not find that this clause was of any great concern to the individuals who would be "chilled." I find no reason to reconsider the prior decision and would deny the motions for reconsideration. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Spction 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten our employees with dis- charge or other reprisals because of their support of Teamsters Local 515 or their engagement in concerted activities, or with the futility of their continued support of the Union as their bargaining agent. WE WILL NOT refuse to bargain in good faith with any union that is the certified or recognized collective-bargaining representative of our employ- ees by insisting to impasse on the waiver of the em- ployees' statutory rights to seek redress from the Board for discipline imposed under a no-strike pro- vision. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with any union that is the certified or recognized collective-bar- gaining representative of our employees and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the following bargaining unit: All production and maintenance employees employed by us at our Kensington, Georgia, facility, including lab technicians, but exclud- ing all office clerical employees, professional employees, technical employees, guards, and supervisors as defined in the Act. REICHHOLD CHEMICALS, INC. Josephine S. Miller, Esq. and Victor A. McLemore, Esq., for the General Counsel. Lowell W. Olson, Esq. (Constangy, Brooks, and Smith), of Atlanta, Georgia, for the Respondent. 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Tim Edwards, Esq. (Gerber, Gerber & Agee), of Memphis, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 3-5 and 30-31 Octo- ber 1984 at La Fayette, Georgia. The hearing was held pursuant to a complaint issued by the Regional Director for Region 10 of the National Labor Relations Board (the Board) on 21 August 1984. The complaint is based on an amended charge filed by Teamsters Local 515 (the Union or the Charging Party) on 13 August 1984, and alleges that Reichhold Chemicals, Inc. (the Respondent) has violated Section 8(a)(1) of the National Labor Rela- tions Act (the Act) by issuing a threat of discharge to Respondent's employees if they joined or engaged in ac- tivities on behalf of the Union and that it has violated Section 8(a)(5) of the Act by refusing to bargain in good faith and that it has violated Section 8(a)(3) of the Act by refusing to allow its employees to return to work fol- lowing an unfair labor practice strike and the employees' unconditional offer to return to work. The complaint is joined by the answer of Respondent in which it denie,s the commission of any violations of the Act. On the entire record in this proceeding, including my observation of the witnesses who testified, and after due consideration of the positions of the parties and briefs filed by the General Counsel and counsel for Respond- ent, I make the following FINDINGS OF FACT AND ANALYSIS1 I. JURISDICTION The complaint alleges, the Respondent admits, and I find that Respondent is, and has been at all times materi- al, a Georgia corporation with an office and place of business at Kensington, Georgia, where it is engaged in the manufacture of chemical products, that during the past calendar year (prior to the filing of the complaint), a representative period, Respondent sold and shipped from its Kensington, Georgia facility finished products valued in excess of $50,000 directly to customers located outside the State of Georgia, and that Respondent is, and has been at all times, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the answer admits, 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. THE APPROPRIATE UNIT The complaint alleges, the answer admits, and I find that: 5 The General Counsel's unopposed posthearmg motion to correct the record by including its G.0 Exh 18 m the rejected exhibit file is grant- ed. All production and maintenance employees em- ployed by Respondent at its Kensington, Georgia facility, including all lab technicians, but excluding all office clerical employees, professional employ: ees, technical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On 5 November 1982, following an election held on 27 and 28 October 1982, the Union was certified as the ex- clusive bargaining representative of all the employees in the above-described unit. In December 1982, the Union requested that the Respondent bargain collectively with it and in January 1983, the Respondent and the Union commenced bargaining an initial labor agreement be- tween them. At the request of the Union, the parties agreed to defer negotiating with respect to economic matters until agreement was reached on noneconomic matters. During the period of the commencement' of ne- gotiations from January 1983 until February 1984, when the last negotiation meeting was held, the parties met on 29 separate occasions. During these negotiations the par- ties submitted proposals and counterproposals and agree- ment was reached on a number of items. However, as of the date of the final negotiation session in February 1984, the parties had not agreed to several nondconomic mat- ters (some of which are the subject of the allegations of bad-faith bargaining in the complaint), and had not com- menced bargaining with respect to economic matters. On 1 April 1984 the Union struck the Employer's facilities. The strike was of short duration and the Union offered the employees back to work to the Employer uncondi- tionally on 6 April 1984. The Employer had hired some strike replacements during the short strike period and subsequently allowed its employees to return to work except for those for whom strike replacements had been hired. As of the date of the hearing in this matter, 27 strikers had not been returned to work by the Employer. B. The Alleged 8(a)(1) Violation—The Alleged Threat Issued by Supervisor Joe Henry to Employees 1. James Stoker and Jimmie Warnock Facts Employee James Stoker testified that in the second week of February 1984, he and employee Jimmie War- nock were working in the Employer's chemical laborato- ry when Shift Supervisor Joe Henry entered the labora- tory to pick up some shipping sheets. A conversation oc- curred concerning how business was and Stoker told Henry "that it looked like we was going to have to go out on strike" and that Henry replied that if the employ- ees went out on strike they would lose their jobs as the Employer was not going to give the employees a con- tract. Stoker then inquired of Henry whether he thought the Respondent would give the employees a labor agree- REICHHOLD CHEMICALS 77 ment if they went on strike to which Henry replied, "No, I don't" and "Things are going to be different." Stoker asked Henry what he meant and Henry replied, "Well, you will find out if you go on strike." Jimmie Warnock testified that Henry had stated that the Re- spondent would not give the employees a contract, and that if they struck the employees would lose -their jobs. Henry denied having had the conversation or having made the statements although he acknowledged that he went through the lab once a shift as part of his responsi- bility as a shift supervisor. He testified further that in February or March 1984 he went into the lab and found the phone off the hook after unsuccessful attempts by a foreman to get in touch with the employees in the lab and that he asked Stoker why the phone, was off the hook and told him that Henry would appreciate it if Stoker would try to keep the phone on the hook. He contended that this was the only conversation he had with Stoker and Warnock. He acknowledged on cross- examination that he had talked to Stoker and Warnock on other occasions in the lab and that he has had general conversations with them. He also acknowledged having been present at meetings where the foremen or supervi- sors were informed about what was occurring in the contract negotiations between the Respondent and the Union. He testified that the negotiations were "briefly just scanned over" and that they were not informed about the details, but were told that "things were going smooth" and that "it was in the language stage and we weren't involved in any of that and I wasn't really con- cerned about it." He testified he did not recall ever having been asked anything concerning the contract by the employees, that they may have done so but that he just did not recall. Analysis I credit the testimony of employees Stoker and War- nock that Henry issued the threat as set out above. I found their testimony to be specific and credible. Con- versely, I did not believe the denial of Henry that he had made such a threat. I also find it unlikely and do not credit his testimony that he was only generally apprised of the status of negotiations to the limited extent that things were going smoothly and that negotiations were in the language stage. I also consider it unlikely that he would not recall whether he had conversations with em- ployees concerning the ongoing negotiations. I accord- ingly find that Respondent violated Section 8(a)(1) of the Act by the issuance of the threat of discharge and the futility of bargaining for a labor agreement, by Supervi- sor Henry to employees Stoker and Warnock. C. The Various Alleged Statements of Respondent's Supervisors to Certain of Respondent's Employees Concerning the Contract Negotiations Facts Employee David Reece testified that between January 1983 and 1 April 1984 (the date of the commencement of the strike), he had conversations with several of Re- spondent's supervisors, specifically Charles Mitchell, Terry Johnson, Joe Henry, Clyde Willingham, and Mac Agnew concerning the status of the contract negotia- tions. He testified that he had these conversations with Charles Mitchell, a production foreman on the A shift "a couple of times a month," but could not recall when these conversations took place, but testified they took place in the control room, the breakroom, and the strip- per room. He testified that "Mitchell said more than once the company did not intend to give us a contract and if we did go out on strike, we could and would be permanently replaced, that they were going to run the plant with us or without us." He testified further that "Bobby" Evans was present at the time of this conversa- tion. Reece also testified that Shift Supervisor Clyde Wil- lingham spoke with him concerning the Union on an av- erage of once every 2 or 3 months, that these conversa- tions occurred in the store room and in the breakroom, but was also unable to place the dates or times of these conversations Reece testified that Willingham told him "that he was afraid we were going to lose our jobs. The company did not intend to give us a contract. They were going to run the plant if we went out on strike, we would be replaced." Reece testified also that day-shift Yard Crew Foreman Mac Agnew discussed the Union with him about once a month when Reece was on the day shift in the control room, and that Agnew told him that the Company would not give the employees a contract and that if they went on strike they would be replaced and lose their jobs. Reece also testified that Production Foreman Terry Johnson spoke to him once every 2 or 3 months con- cerning the Union in either the control room or the pro- duction foreman's office, but could not place the time or date of these conversations. Reece testified that Johnson told him, "that we were making a mistake, that we weren't going to get a contract, and if we went out on strike, when we did we would be replaced." Reece also testified that Shift Supervisor Joe Henry discussed the Union with him every 2 or 3 months in the control room and possibly the breakroom, but was unable to place the date or time of these conversations. Reece testified that Henry told him "that the company had no intention of giving us a contract. If we went out on strike, we would lose our job." Warehouse employee Charles Smith testified that during the period from January 1983 until April 1984 he had conversations with Mac Agnew with whom he shared an office in the warehouse approximately once a month, but could not place the times or dates of these conversations. Smith testified that, "Mac Agnew told me that we would never get a contract, and we would stand to lose our job if we went on strike." Employee Bobby Evans testified that he had approxi- mately 15 conversations with Supervisor Charles Mitch- ell concerning the Union after January 1983, that the conversations occurred once or twice a month and picked up in number following the strike vote taken by the Union in August 1983. He placed these conversations as having occurred primarily in the vicinity of the break- room with approximately two of them occurring in the 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lab. On two occasions employee Reece was also present. On other occasions employees Charles Autrey, Charles Hughes, and Jimmie Warnock may have been present. He was unable to place the dates or times that these con- versations occurred. On these occasions Mitchell stated that, "We didn't have a chance of getting a contract, the company was not going to give us one and if we did strike, we would be without a job." Respondent called as witnesses Supervisors Clyde Wil- lingham, Terry Johnson, James "Mac" Agnew, Wesley Lee "Joe" Henry Jr., and Charles T. Mitchell, each of whom denied the statements attributed to him by the em- ployees concerning the Union. Supervisor Willingham initially testified on direct ex- amination that he had never talked to David Reece about the Union, nor had any conversations with any other employee wherein he told the employees that Respond- ent would never give the Union a contract. He testified that he was kept up to date concerning the progress of negotiations and that he had attended meetings with Herman Allison who was Respondent's outside counsel with respect to labor relations and the chief negotiator for Respondent. On cross-examination, Willingham ac- knowledged that he had heard employees discuss the pending contract negotiations and that the employees had asked him how the negotiations were progressing, but denied that he told the employees anything as he contended. that he did not know how negotiations were progressing. In response to further questioning on cross- examination, Willingham admitted that he had answered employees' questions concerning contract negotiations. He also admitted having had general conversations with employee Reece, but denied that they involved contract negotiations. In response to questioning by me, Wil- lingham testified that he told several employees who questioned him concerning contract negotiations that they were in the language stage, but that was all he knew as he had not been informed of any more specific details of the status of the negotiations. He testified fur- ther on redirect examination that he had attended three supervisory meetings during the course of the negotia- tions. Supervisor Terry Johnson testified on direct examina- tion that he had had only a single conversation with Reece concerning the Union, and that this took place the day after the election and involved a statement by Reece that Reece appreciated that Johnson had not said any- thing to Reece prior to the election concerning the Union. He denied having had any other conversations with Reece concerning the Union. On cross-examination, he denied having had any knowledge of the progress of negotiations although he had attended supervisory meet- ings, but denied that the negotiations were discussed at those meetings. He testified that he was told not to talk to the employees (concerning the Union). He acknowl- edged that the employees sometimes asked him how ne- gotiations were progressing, but testified that he told them he did not know. James "Mac" Agnew denied that he had ever talked to Reece about the Union. He acknowledged having had discussions with employee Charles Smith about the Union wherein he would ask Smith (a member of the union bargaining committee) whether there had been any progress and Smith would reply that the parties were making progress. He denied ever having told Smith that Respondent would never give the Union a contract or that the employees would lose their jobs if they went on strike. He admitted that he had answered employees' questions concerning negotiations. He acknowledged that he had attended supervisory meetings wherein Respond- ent updated the supervisors and foremen on the progress of negotiations. In answer to questions from me, Agnew testified that in response to questions by the employees concerning the progress of negotiations he answered their questions if he knew the answer and if he did not know the answer, he found out. However, in response to further questioning by me, he was unable to remember when these conversations occurred, with whom they oc- curred, or what he had told them. Wesley "Joe" Henry, a shift supervisor, testified that he had never had any conversation with Reece concern- ing the Respondent's unwillingness to give the employ- ees a contract or their replacement in the event they struck the Respondent. As noted previously in this deci- sion, he also denied the statements attributed to him by employees Stoker and Warnock that he had told them in February 1984 that Respondent would never give the Union a contract and that they would lose their jobs if they went on strike. He acknowledged on cross-examina- tion that he had general conversations with Reece, War- nock, and Stoker. He acknowledged also that he had at- tended supervisory meetings wherein the supervisors were apprised of the status of negotiations, that they were told negotiations were going smoothly and were in the language stage. He testified he was not informed of the first strike vote (in August 1983) at these meetings, but learned of it from the employees. He testified he did not recall whether he had been asked any questions about negotiations by the employees, but testified this might have occurred. Production Foreman Charles Mitchell testified that he had not made the statements attributed to him by em- ployee Reece to the effect that the Respondent did not intend to give the employees a contract and that they would be permanently replaced if they went out on strike as Respondent was going to run its business with or without the employees. He also denied having made the statements attributed to him by employee Evans con- cerning the negotiations or the Respondent's unwilling- ness to give the employees a contract. He also testified that he could recall no specific discussion with an indi- vidual employee concerning the Union, but testified he overheard conversations between other employees con- cerning the Union and negotiations. On cross-examina- tion, he acknowledged that on some occasions he lis- tened to conversations among the employees concerning the progress of negotiations and may have joined in these conversations and that he heard employees state that they wished contract negotiations would be com- pleted ("for it to get over with"). He did not recall the employees involved in these conversations other than employee Ragland who was a member of the Union's ne- gotiating committee and with whom he discussed negoti- REICHHOLD CHEMICALS 79 ations individually. In addition, Respondent called sever- al employees who are currently employed by Respond- ent, all of whom testified that they had not been threat- ened with the futility of bargaining or adverse conse- quences if the employees went on strike. Analysis I credit the testimony of employees Reece, Smith, and Evans that the statements attributed to the various super- visors were made to the employees over the course of the contract negotiations as set out above to the effect that Respondent would not enter into a contract, that bargaining was futile, and that adverse consequences would occur if the employees went on strike. In making these determinations, I have considered the interests of the witnesses. Neither set of witnesses are impartial. Thus, each of the General Counsel's witnesses to these alleged conversations are employees who were perma- nently replaced and were not returned to work following their unconditional offer to return. Each of the supervi- sors called by Respondent to rebut the charges are cur- rently employed by Respondent. I have also considered the inability of the General Counsel's witnesses to speci- fy dates and times concerning these alleged statements by Respondent's supervisors. However, I am convinced that these employees were candid concerning these con- versations, notwithstanding their substantial interest in the outcome of these proceedings and their inability to specify the dates and times of these conversations. I find that this inability is (as the General Counsel contends) re- lated at least in part to the large number of instances in- volved over an extended period of time. I also consider irrelevant the testimony of several current employees called by Respondent that they themselves were not threatened with the futility of bargaining or adverse con- sequences if the employees went on strike. I cannot subscribe to Respondent's contention that these antiunion statements should not be imputed to it under these circumstances on the ground that the super- visors were not kept abreast of the status of negotiations. I find it unlikely that the supervisors were apprised of negotiations by Respondent only to the limited extent testified to by the supervisors that they were told only that the parties were at odds over language. I also do not find credible the uniform denials of these supervisors that such conversations took place. I note particularly in the case of Supervisor Agnew that he acknowledged that conversations had occurred between himself and the em- ployees concerning negotiations, but when questioned by me as to the specifics thereof, he testified he was unable to recall. I found the denials of these conversations by these supervisors to be stilted and unconvincing. I thus conclude that the various statements attributed to Re- spondent's supervisors did occur and reflected Respond- ent's intent to frustrate the Union and employees in their attempts to negotiate a collective-bargaining agreement. D. The Alleged Bargaining Violations Facts Following the Union's certification in December 1982 and its submission of its initial contract proposal mailed to the Respondent on 28 December 1982, the parties commenced negotiations for , an initial labor agreement with the first meeting held on 18 January 1983. The chief spokesman and negotiator for the Union was Noel Robert Carl Logan Jr., the Union's president and busi- ness manager. On several occasions during the course of negotiations, other union representatives served as the spokesman for the Union in the absence of Logan. The chief spokesman and negotiator for the Respondent was its attorney Herman Lee Allison. Including their initial negotiation meeting of 18 January 1983, the parties en- gaged in 29 separate bargaining sessions with the final session held on 15 February 1984. At the request of the Union the parties had agreed to set aside economic mat- ters for discussion until noneconomic matters were re- solved. In February 1983, the Respondent submitted its initial contract proposal including a lengthy and broad manage- ment-rights clause, a restrictive grievance definition, and a restrictive unauthorized work stoppage clause. It subse- quently amended its management-rights and unauthor- ized work stoppage proposals on 13 October 1983.2 During the course of negotiations the parties resolved many substantive issues. However, agreement was not reached on the management-rights clause, the definition of a grievance, or the unauthorized work stoppage clause. These three clauses, among others, remained items of dispute throughout negotiations. Business Manager Logan testified as follows: Follow- ing the submission of the Union's initial proposal on 28 December 1982, the parties commenced bargaining on 18 January 1983. The Company, through its representative Allison, submitted its initial proposals at a later meeting on 24 February 1983, including its proposals on the grievance procedure, management rights, and unauthor- ized work stoppage (Jt. Exh. 1). Various aspects of the Union's and the Company's proposals were discussed throughout the course of negotiations with agreement reached on a number of proposals and a number remain- ing unresolved. At the 18 March 1983 session, Allison told the union representatives that the Company had to have a basic management-rights clause with the rights set out in the agreement. Company rules were also discussed and Allison stated that the Company wanted sole discre- tion with the Union having no recourse through the grievance procedure. Stewards were discussed as were the grievance procedure and unauthorized work stop- page clauses, among others. At the session of 26 July 1983, section 1 of the grievance procedure was discussed and Allison stated the Company's position that a griev- ance was a specific violation of the contract whereas the Union contended a grievance was (1) a violation of the contract, (2) a violation of past practice, (3) an unfair treatment, or (4) a violation of the law. At that meeting 2 Appendix A, Respondent's original management-rights proposal of 24 February 1983—Jt. Exh. I. Appendix B, Respondent's original unauthor- ized work stoppage proposal of 24 February 1983—St. Exh 1. Appendix C, Respondent's definition of a gnevance in its original grievance proce- dure and arbitration proposal of 24 February 1983—Jt. Exh. 1 Appendix D, Respondent's management-rights proposal of 13 October 1983—G.C. Exh. 7. Appendix E, Respondent's unauthorized work stoppage proposal of 13 October 1983—G.C. Exh. 8. 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Allison stated that the Company was going to have a management-rights clause and that the Union would be precluded from arbitrating management rights. Logan stated there would be a management-rights clause but the Union would not give up its right to grieve. Allison stated the Union would not have the right to grieve the selling or closing of the plant in whole or in part. Logan said he had never signed a contract with that provision, whereas Allison stated he had never signed one without it. Logan told Allison he thought the Company was at- tempting to obtain an unfair advantage. At the next meeting on 27 July 1983, various provisions of manage= ment rights were discussed. Allison asked Logan wheth- er he had any proposals to work out the disagreements, and Logan told him "Not at this time." At the session of 13 August 1983, the parties also discussed the definition of a grievance and Allison asked Logan what a griev- ance was, to which Logan replied that it was a violation of the contract, past practice, law, or unfair treatment. Certain other items of the grievance procedure were agreed on at that meeting. During this meeting inspec- tion rights were also discussed, whether a management representative should accompany a union representative at all times when he is in the plant. The Company's posi- tion was that the union representative should be accom- panied by a management representative, whereas the Union's position was that he need not be accompanied by a management representative. At the meeting of 18 August 1983, the parties discussed grievance and arbitra- tion and in answer to an inquiry by Allison, Logan told Allison the Union was not prepared to respond to the Company's proposals regarding to the grievance and ar- bitration procedure as he did not think there was any movement at that time and he would need to discuss this with the Union's attorneys. At the 30 August 1983 meet- ing, it was noted that the noneconomic items remaining open or unresolved at that time were checkoff, manage- ment rights, protection of rights, maintenance of stew- ards, work stoppage, subcontracting, payday, and Ap- pendix B. At the meeting of 15 September 1983, the par- ties discussed grievance and arbitration and management rights. Logan told Allison at that meeting that the Union would not agree to a more favorable provisions clause, and that the management-rights clause was a strike issue. Logan listed what the Union considered to be strike issues, which were the more favorable provisions clause, grievance and arbitration, checkoff, management rights, no strike (unauthorized work stoppage), protection of rights, special rights, stewards, discharge and suspension, maintenance of standards, and subcontracting. At the meeting of 30 September 1983, Logan gave the Compa- ny a typed list of union proposals on remaining noneco- nomic issues and made it a package and also gave the Company amended management-rights and unauthorized work stoppage proposals. The next meeting was 13 Oc- tober 1983, and Allison told the Union that their package had left very little room for the Company to negotiate and that he had deleted from the Company's proposal a requirement under the no-strike clause that employees cross a lawful primary picket line of another employer. Logan responded that this was covered in the Union's protection of rights proposal, whereas Allison responded regarding the setting up of picket lines, and stated if the parties had a contract the employees would be expected to come to work and cross a picket line. Logan respond- ed, "You are trying to restrict the grievance procedure and preclude an arbitrator from ruling on legitimate grievances," and Allison responded, "You are absolutely right." At that point tho parties stated that they had made all the moves they could. The Company withdrew its more favorable provisions clause at this meeting. The next meeting was held on 14 October 1983, and Allison stated the Company had made all the movement it could under the current circumstances, and Logan replied that, "I guess we were there, we had agreed to disagree" and stated that, "We intend to take action." The remainder of the meeting involved Allison's statements that the Com- pany intended to operate the plant and would hire re- placements, that the employees would be permitted to keep their insurance if they entered the plant and made arrangements to do so, and that he expected any picket line to be peaceful or the Company would take action. The next meeting was held on 15 November 1983, at which time a Federal mediator was called in at the re- quest of the Union. Various issues were discussed at this meeting. The Union made the Company a package offer accepting the Company's section 1-A in place of the Union's section 1 grievance procedure proposal, accept- ing the Company's proposal in regard to "Agreement" and withdrawing the Union's protection of rights and maintenance of standards proposals if the Company would accept the Union's last proposal on management rights and unauthorized work stoppage, and also with- draw its proposal on the scope of the agreement. The Company agreed to accept the Union's offer to accept the Company's section 1 proposal of the grievance pro- cedure, but stated that the grievance procedure would otherwise remain as proposed by the Company. Allison stated that the Company had made its last offer on man- agement rights and unauthorized work stoppage. Logan told Allison that the Company had "grabbed up all the goodies" and otherwise "stood pat" on their position, and unless the Company would rethink its position, the Union would withdraw its proposals submitted as of this date. In response to a question from the mediator, Alli- son stated that management rights were not subject to arbitration. The mediator asked Allison about unfair labor practice strikes, and Logan stated the Union had the right to engage in an unfair labor practice strike under the law, and Allison replied it did not if it were waived in the contract. In response to a statement by Logan that the Company's position was that manage- ment rights were not arbitrable, Allison responded that this was not so as the first sentence stated that manage- ment rights was subject to the agreement. The next meeting was held 13 December 1983, and at the begin- ning of the meeting Logan announced that since the Company had rejected the Union's proposals of 15 No- vember 1983, that the Union was withdrawing these pro- posals and was now proposing its proposals of 30 Sep- tember 1983, except in the area of its management-rights and no-strike clauses wherein the Union was reinstating its proposal of 18 March 1983. The Company requested a REICHHOLD CHEMICALS 81 caucus, and on its return Allison stated the Company would stand with their last offer, and that the Union had taken a giant step backward in its negotiations. The par- ties agreed to adjourn until the Union could make ar- rangements for its attorney to represent them in negotia- tions. The next meeting was held on 15 February 1984, at which time the Union was represented by its attorney Tim Edwards, and which was also attended by the Fed- eral mediator. At that meeting the definition of a griev- ance was discussed at length with Edwards addressing inquiries to Allison who told Edwards that past practice, management rights, and wage levels were excluded from the grievance procedure. Allison told Edwards that the Company was attempting to get an express waiver of sympathy strikes, and also that once the agreement was signed, the employees cannot go on strike for any reason whatsoever. Allison told Edwards the only aspect to be arbitrated if an employee went on strike was the question of participation, but that the severity of discipline im- posed by the Company on the employee was not arbitra- ble. Allison acknowledged that the Company was requir- ing an express waiver of the employees' Section 7 rights under its unauthorized work stoppage proposal. Logan testified that two strike votes were taken. Ini- tially on 2 August 1983, Logan held a meeting with the employees and told them that it looked as if they were not going to be able to obtain an agreement without a strike, as the Company's management-rights proposal would supersede the remainder of the contract; the Com- pany's no-strike clause proposal would prevent a strike for any reason whatsoever or honoring a picket line of any kind; the Company's management-rights proposals severely restricted what could be grieved; and the Com- pany's inspection-rights proposal barred private conver- sations between union representatives and employees, and required stewards to conduct union business on their own time. He concluded that no self-respecting union would put their name on such a contract. The employees voted unanimously to strike at that meeting. Subsequently on 1 April 1984, Logan met with the em- ployees again and informed them of the status of negotia- tions and told them that the Company's language was unreasonable and a strike was inevitable and reviewed the Company's management-rights proposal again and told the employees it would supersede the remainder of the contract. He also reviewed what he had told them in the 7 August 1983 meeting regarding the Company's un- authorized work stoppage proposal, and that if they agreed to these proposals, the employees would not have a significant labor agreement. A voice vote was taken and the employees unanimously agreed to strike that date, which they did. The strike lasted 6 days whereupon the Union offered the employees back to work to the employer unconditionally on 6 April 1984. Union Business Agent Terrence E. Guffey testified that he attended the 1 August 1983 meeting at which the employees voted to strike and the 1 April 1984 meeting at which Logan told the employees that the manage- ment-rights clause proposed by Respondent would super- sede ("take away") the other clauses in the contract. Guffey also testified that Logan discussed all the con- tractual provisions on which the parties had not agreed, including the unauthorized work stoppage clause, after which a voice vote of the employees was taken and they unanimously voted to strike. On 6 April 1984, Guffey of- fered the striking employees back to work unconditional- ly to Respondent's plant manager, Potts. The testimony of Logan and Guffey concerning the two strike vote meetings was essentially corroborated by employees Stoker, Warnock, Reece, Smith, and Evans, who testified concerning these meetings. Stoker recalled that Logan discussed the management-rights clause, the grievance and arbitration procedure, the no-strike clause, and Respondent's proposal that a management represent- ative accompany union representatives during plant visits. Stoker testified that at the 1 April 1984 meeting, Logan reviewed the management-rights clause and the grievance procedures and told the employees that no self-respecting union would accept the Respondent's pro- posals. Reece testified that Logan told the employees at the 1 April meeting that Respondent's proposed manage- ment-rights clause was unreasonable. Smith testified that Logan discussed the management-rights clause, the no- strike clause, and several other clauses at the 1 April meeting. Warnock testified that Logan discussed the management-rights and no-strike clauses and plant visits at both meetings. Evans testified that Logan told the em- ployees at the August 1983 meeting that the Respond- ent's proposed management-rights clause would super- sede the rest of contract and also discussed the no-strike clause, and that Logan told the employees at the 1 April meeting that the Respondent's position was the same and called for a strike vote. The Respondent called 14 employees who either re- turned to work during the course of the strike or were recalled by Respondent after the strike, and who were all currently employed by Respondent at the time of the hearing. Most of these employees generally testified on direct examination that at the strike vote meetings they had attended in August 1983 and/or April 1984, Logan discussed as the central strike issue the Union's demand that it be allowed to make plant visits without the ac- companiment of management representatives, and also an issue concerning stewards performing their union duties while on paid working time. On cross-examination, some of these employees acknowledged that Logan had dis- cussed the Respondent's management-rights proposal and no-strike clause while other employees could not recall whether he had done so. Respondent's legal counsel and negotiator, Herman Allison, essentially testified that the Respondent was willing at all times to bargain with the Union, attended all scheduled meetings, exchanged proposals, and that the parties reached agreement on many issues involving concessions on both sides, but that the Union remained unwilling to discuss the Respondent's proposed manage- ment-rights clause throughout the course of negotiations; that Respondent at no time told the union representatives that any of its proposals or positions were final or that it was unwilling to consider counterproposals, and that it was prepared to meet and was awaiting contact from the Federal mediator to set another meeting following the February 1984 meeting, and was unaware of the strike 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD until it occurred on 1 April 1984; that following the strike it commenced to hire permanent replacements for the striking employees, but permitted those employees who had not been replaced to return to work following the end of the strike and placed the remaining strikers on a preferential hiring list. Allison testified as follows: On one occasion in June 1983, he requested that Union Business Agent Guffey, who was substituting for Logan, discuss Respondent's proposed management-rights clause and Guffey respond- ed, "There ought to be something better to talk about than that." At another bargaining session on 26 July 1983, he offered to Business Manager Logan to go through Respondent's management rights clause point- by-point and told him everything was open to discussion, but was unsuccessful in getting Logan to discuss it, except that Logan listed the items of the management- rights proposal the Union did not agree with, and that he Allison asked Logan whether he had any proposal for resolving the management-rights clause or any part of it and that Logan responded, "Not at this time." Logan would not tell Allison what problems he had with Re- spondent's management-rights proposal or its unauthor- ized work stoppage clause. The parties also disagreed on the defmition of a grievance. At the July meeting, Logan continued to object to management's proposal that union representatives be accompanied through the plant by management representatives. During the course of nego- tiations, the parties removed several items from other ar- ticles and placed them into Respondent's management- rights proposal to obtain agreement on the other articles. At a negotiation meeting on 15 September 1983, Logan told Allison that "We are all in on Grievance and Arbi- tration," as Logan saw no significant movement that could be made and then suggested the parties discuss management rights, and then listed six items of the Re- spondent's proposed management-rights clause as strike issues, and then designated several strike issues in Re- spondent's unauthorized work stoppage clause. Logan then told Allison that there were other items in these two clauses that were also strike issues, but which the Union was willing to discuss. The parties never discussed in detail any of the six items designated as strike issues in Respondent's management-rights proposal or any of the six items designated as strike issues in Respondent's unau- thorized work stoppage proposals. The six designated strike issues in the management-rights clause were: (1) "the unqualified right to place any or all of such rights into effect without notice to, or negotiations with, the union"; (2) "the right to determine from time to time which jobs shall be paid on piece, hourly, piece incen- tive, or bonus rate, including the right to formulate and institute such systems unilaterally and without notice to any party"; (3) "the right to determine. . . or other tests for the security of the employees, plant premises, or property of the Company's"; (4) "the right to determine whether to use employees full-time or part-time"; (5) "the right to establish, revise, or discontinue policies, practices, procedures, rules and regulations for the con- duct of business, and from time to time to change, amend, modify, or abolish such policies, practices, rules and regulations subject to the provisions of this agree- ment"; (6) "It is hereby agreed that the reserved manage- ment rights as set forth herein, or elsewhere in this Agreement, shall not be subject to the grievance and ar- bitration provisions of this Agreement nor shall they be subject to impairment by an arbitration award under this Agreement." The six designated strike issues in the Re- spondent's unauthorized work stoppage proposal were: (1) the prohibition against sympathy strikes; (2) the pro- hibition against "including any manner of stoppage not herein specified or anticipated by the parties. Failure or refusal on the part of any employee to comply with any provision of this Article shall be cause for whatever dis- ciplinary action, including suspension or discharge, against whatever number of employees is deemed neces- sary by the Company. In administering such discipline, the Company may distinguish between leaders and other participants in the unauthorized work stoppage, strike, slowdown, or other interference with production"; (3) following a requirement in the clause that the Union use all efforts at its disposal to return striking employees to work and enforce all penalties provided for in its consti- tution and "the failure of the Union to so act, after due notice given by the Company, shall be construed to mean that the Union sanctioned or condoned the action of the employees involved. Such communication shall be communicated by the Company as it deems appropriate"; (4) "Neither the violation of any provision of this Agree- ment nor the commission of any act constituting an unfair labor practice or otherwise made unlawful by any Federal, state, or local law shall excuse the employees, the Union, or the Company from their obligations under the provisions of this Agreement"; (5) "It is expressly un- derstood and agreed that an employee covered by this Agreement shall not withhold their services from the Company in connection with any labor dispute, whether or not at the Employer's premises, and it is agreed that the Union will not authorize or condone the action of any employee in so withholding their services, including cases where the performance of such services may re- quire that the employees cross and work behind picket lines established by this or other local unions or other labor organizations at any place, including a customer's place of business. There shall be no refusal to work on, handle, or produce any materials or equipment because of a labor dispute affecting this Company, a vendor pur- chaser, supplier, or carrier of said materials or equip- ment"; (6) "It is further agreed that if such prohibited ac- tivity occurs the Company shall have the unrestricted right to replace any and all such participants and they shall have no further rights under this Agreement and no action in law or equity or before any administrative agency, including the National Labor Relations Board. This right to replace employees engaging in misconduct prohibited by this Article shall be in addition to other disciplinary action, as deemed appropriate by the Com- pany, provided for in this Article." At the hearing Allison contended that the designated strike issue 6 in Respondent's unauthorized work stop- page proposal was a "throw away," that he inserted to trade off by giving it up in order to bargain for some- thing else in another clause. Allison testified that Logan REICHHOLD CHEMICALS 83 also listed checkoff, inspection rights, and stewards as strike issues, but contended that the only area of dis- agreement with respect to stewards was whether they would be paid, and that the only disagreement on inspec- tion rights was whether union representatives must be accompanied by members of management when they made plant tours, and that the Respondent had already indicated to the Union that it would agree to checkoff, but Wanted to discuss it under economic issues and to obtain something in return for it. Allison testified further that on 30 September 1983, Logan gave Respondent a . counterproposal as a package on noneconomic matters and told Respondent that it had to be accepted in total and could not be accepted in part only. This package in- cluded a typed counterproposal on management rights and on unauthorized work stoppages. Allison told Logan Respondent would need to review the counterproposal and to reconvene to consider it, and the parties met again on 13 October 1983, at which time Respondent of- fered a counterproposal to the Union's proposal of 30 September 1983, and told the Union that it was not a package offer and the Union could select items of agree- ment if it chose. According to the testimony of Allison, he inquired whether Logan would agree to insert "lead- ership ability" in the requirements for the quality control shift leader position if the Respondent agreed to all the outstanding issues and Logan stated he would not do so. 3 Allison also withdrew the Respondent's most-favor- able-provisions clause. Logan proposed that the parties adjourn for the day and that Respondent give him its po- sition the next day. The parties met the next morning and Allison told Logan that the Respondent could not move further at this time because of the union insistence that Respondent accept the Union's package proposal in its entirety or not at all, but that Respondent was willing to consider any changes or revisions the Union would advance, and that the Union was free to pick and choose among the proposals offered by Respondent. The Union requested a break, and on its return Logan stated, "Herman [Allison], I reckon we are there," and after fur- ther conversation stated, "Reluctantly, we must take action." Allison then told Logan that in the event of a strike the Respondent would continue to operate the plant with replacements if necessary to do so, and would permit the employees to continue their group insurance if they came in and made arrangements to do so, and that Respondent expected any picket line to be peaceful. Logan requested Respondent to contact him if there was a change in its position and stated he would do the same. Allison testified further that on 15 November 1983, at the Union's request, the parties met with Federal Media- tor Maurice Tipple. At Allison's request, Logan went over several outstanding items and proposed changes on some of them. The Respondent caucused and on its return told Logan his proposals were not significant, but that Respondent would go through them and did so at this meeting, and Respondent agreed to some of the Union's proposed changes, including the Union's agree- ment to accept the Respondent's definition of a griev- 3 Logan was recalled on rebuttal by the General Counsel and denied that Allison had made such an offer. ance. Allison told Logan that with respect to manage- ment rights that Respondent's "position at this point in time was as stated in our last offer," but denied that he had told Logan that the Respondent had made its last offer on management rights and unauthorized work stop- page. The last offer of Respondent referred to by Allison was its written proposal of 13 October 1983. After Alli- son had gone through all these provisions, the Union caucused and on its return stated that Respondent "had gobbled up all the goodies and stuck to [its] position." The parties' representatives Logan and Allison then met with the mediator and agreed to another meeting which was ultimately scheduled for 13 December 1983. Allison contends that after the meeting the parties were in agree- ment with respect to management-rights and in substan- tial agreement on the unauthorized work stoppage clause. At the meeting of 13 December 1983, Logan stated that since Respondent had rejected his last propos- al that he was withdrawing all the Union's proposals at the last meeting and was returning to the Union's pro- posals of 30 September 1983, except with respect to man- agement's rights and unauthorized work stoppage, with respect to both of which the Union was returning to its initial proposal of 18 March 1983. Respondent caucused and on its return Allison told Logan that he was upset as he had thought they were close to agreement and that the Union had taken a giant step backward in their nego- tiations. Logan suggested he bring in the Union's attor- ney Tim Edwards, and Allison agreed. The parties next met on 15 February 1984, with Ed- wards speaking on behalf of the Union. Edwards com- menced by asking Allison questions about what was cov- ered in the grievance procedure and what was excluded. Allison told him management rights was excluded from the grievance procedure. Edwards also inquired whether Allison was attempting to obtain an express waiver of sympathy strikes to which Allison replied in the affirma- tive. Questioning by Edwards centered primarily on what was covered under the grievance and arbitration procedure. The meeting broke up with Respondent walk- ing out in protest over Edwards' method of questioning Allison. When the parties returned, Edwards told Allison that the unauthorized work stoppage clause was not agreeable, and he believed that another paragraph of the Respondent's proposal on unauthorized work stoppages was not legal. At the suggestion of the mediator, the par- ties adjourned. Allison subsequently received a call from the mediator asking whether he would be willing to meet in March, and agreed to do so but had no further contact from the mediator. Management rights had never been discussed. The Union's proposal of 30 September 1983, regarding management rights was almost identical to the Respond- ent's proposal with the exception of Respondent's pro- posal that management rights were not subject to the grievance procedure, and the Union's 30 September 1983 unauthorized work stoppage clause was considerably more restrictive than its 18 March proposals. On cross- examination, Allison acknowledged that he at no time advised the Union that there were any throwaways in Respondent's unauthorized work stoppage proposal. 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Analysis 1. The surface bargaining allegation The General Counsel contends that Respondent en- gaged in surface bargaining in violation of Section 8(a)(5) and (1) of the Act in this case by insisting on a broad managements rights clause and a restrictive grievance procedure and unauthorized work stoppage clause as the broad management rights clause retained in Respondent's control over every tacit of the employment relationship permitting management to change these terms and condi- tions of employment at will, and that this coupled with the restrictive grievance procedure, which precluded the assertion of anything arguably a management right as a grievance and the restrictive unauthorized work stop- page clause, which prohibited the employees from en- gaging in a strike of any kind including an unfair labor practice strike or a Section 502 strike protesting hazard- ous conditions as would be particularly applicable in the case of a chemical manufacturing operation such as Re- spondent has, and which also precluded access to the National Labor Relations Board or any other Govern- mental agency, all combined to render the labor agree- ment a nullity. The General Counsel relies on NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960), in which the Board and court looked to the substantive positions taken by the employer in bargaining to deter- mine whether the employer had made a good-faith effort to bargain, and concluded it had not. As in the instant case the employer had engaged in bargaining over a long period of time, exchanged proposals, and made conces- sions, but the court held in Herman Sausage, supra, that these actions by the employer could be the method by which the employer could conceal its strategy to make bargaining futile. The General Counsel also relies on A-I King Size Sandwiches, 265 NLRB 850 (1982), a case it as- serts is factually very similar to the instant case and in which case the Board found that the employer's state of mind was inconsistent with a willingness to reach agree- ment in view of its insistence on its management-rights, no-strike, and nondiscrimination and wage proposals "re- taining to itself total control over virtually every signifi- cant aspect of the employment relationship." In A-I King Size Sandwiches, supra, the employer also had proposed restrictive grievance and no-strike clauses as in the in- stant case. The General Counsel also relies on the state- ments of Respondent's supervisors to certain of the em- ployees, as found supra, to the effect that Respondent would not agree to a contract, and that adverse conse- quences would occur if the employees went on strike. The General Counsel also points to the conduct of Chief Negotiator Allison as evidence of Respondent's lack of good faith in bargaining for a labor agreement, particu- larly his manner of testifying at the hearing in this case, and his assertion at the hearing that a portion of its unau- thorized work stoppage proposal was merely a bargain- ing chip to be thrown away as the parties came closer to agreement, but which proposal was never withdrawn by Respondent even after the onset of the strike, as well as Allison's alleged refusal to answer the questions of Union Attorney Edwards in a meaningful way concerning what types of matters could be grieved, and his assertion at the trial that the Union refused to discuss the Respond- ent's management-rights proposal, which was denied by Union Business Manager Logan. The Respondent contends that the record is devoid of any evidence of dilatory tactics on the part of Respond- ent, but rather shows that Respondent met at all reasona- ble times, exchanged proposals, and reached agreement with the Union on a number of contract clauses whereas Union Chief Negotiator Logan was absent on several oc- casions and that the other union representatives, who substituted for him on those occasions, were unprepared to engage in meaningful contract discussions, and further that the Union was unable or unwilling to discuss the Respondent's management-rights proposal during the entire course of bargaining notwithstanding repeated at- tempts by Allison to persuade them to discuss Respond- ent's proposals or to offer counterproposals to resolve the differences between the parties. Respondent particu- larly relies on Logan's withdrawal of the Union's 30 Sep- tember 1983 proposals as evidence of its own lack of good faith in bargaining. The Respondent relies on NLRB v. American National Insurance Co., 343 U.S. 395 (1952), in which the parties were "deadlocked on a man- agement-function clause and the Court held that such a clause was not evidence of bad faith" and concluded the parties' "inability to reach agreement was due to the Union's unyielding position in opposing the management- function clause." Respondent also relies on Chevron Chemical Co., 261 NLRB 44 (1982), for the proposition that an employer's proposal of a strong management rights clause and no-strike clause in conjunction with a limited arbitration clause may be merely evidence of lawful hard bargaining rather than unlawful surface bar- gaining by the employer. Respondent also relies on Gulf States Mfrs., 579 F.2d 1298 (5th Cir. 1978), in which the court reviewed the Board's fmding of bad-faith bargain- ing against the employer and held that if any party were guilty of bad-faith bargaining it was the Union as a result of its recalcitrance in bargaining as contrasted with the employer's willingness to meet and bargain, the employ- er's lack of dilatory tactics, and its assumption of "the bulk of the responsibility for preparing proposals and writing up agreements." The Respondent also relies on NLRB v. Tomco Communications, 567 F.2d 871 (9th Cir. 1978), in which the court reversed the Board's finding of surface bargaining by the employer in that case and re- jected as vague the Board's use of the phrase "terms which no self respecting union could be expected to accept" in the Board's finding that the employer's final offer was evidence of bad faith. In the instant case I conclude that Respondent did, through Chief Negotiator Allison, assert that it had to have a broad management-rights clause, a restrictive grievance definition, and a restrictive unauthorized work stoppage clause, the combination and net effect of which, if it were successful in obtaining these clauses as set out, would have been to retain complete control in manage- ment over the terms and conditions of employment of its employees, and would have rendered the labor agree- ment as meaningless in view of management's unrestrict- ed right to change the terms and conditions of employ.. REICHHOLD CHEMICALS 85 ment at management's whim, and would have rendered the Union as totally ineffective in representing the em- ployees. After a review of all the testimony I am convinced (notwithstanding Allison's testimony at the hearing that these clauses were open to negotiation) that these clauses were presented to the Union as a fait accompli as what management had to have in order to reach agreement (elicited management rights, which were not subject to the grievance procedure and complete waiver of all the employees' Sec. 7 rights). I do not credit Allison's asser- tion at the hearing that the waiver of statutory rights contained in the unauthorized work stoppage clause was a mere bargaining chip or throwaway. I find implausible that Allison would not have withdrawn this provision if it were in fact a mere bargaining chip. I find that the proposals in combination made by Respondent were un- reasonable and impeded any prospects for reaching agreement. I also find that the Union sufficiently detailed its opposition to these clauses and that Respondent was well aware of this opposition, but took no steps to re- solve them. I do not credit Allison's testimony that on 30 September 1984, he offered to settle all outstanding issues if the Union would agree to the insertion of "lead- ership ability" as a qualification for the quality control shift leader position. I find this implausible in view of Respondent's insistence on these proposals over the ex- tended period of negotiations and credit Logan's testimo- ny that Allison did not make such an offer. I also find that Respondent persisted in its position throughout ne- gotiations that it had to have the control set out in its management-rights, unauthorized work stoppage, and grievance definition proposals, and that Allison was well aware that these were the major impediments to agree- ment between the parties. I reject Respondent's assertion that the stumbling block to agreement was the Union's failure to negotiate and discuss the issues, particularly the management-rights clause. It is clear that Logan advised Allison what the items of dispute were with respect to his proposals, and that Allison took no significant actions to resolve the disputes, or made no significant conces- sions with respect to them. However, it is undisputed that Respondent was prepared to and did meet with the Union at agreed-on times, and that there was no evi- dence of a refusal of Respondent to furnish information, and there was no evidence it otherwise engaged in any technical violations concerning the mechanics of the ne- gotiations. Rather, it appears that Respondent was some- what more diligent in attending meetings prepared to dis- cuss matters than was the Union, although I do not find that the Union was dilatory in bargaining. I find that the Board law set out in Herman Sausage, supra, and A-I King Size Sandwiches, supra, is applicable here. I find that Respondent engaged in surface bargain- ing in violation of Section 8(a)(5) and (1) of the Act by its insistence on the combination of its broad manage- ment-rights clause, its restrictive unauthorized work stoppage clause, and its restrictive definition of a griev- ance, which was inconsistent with a sincere desire to reach an agreement. I do not fmd that the Union's with- drawal of its package proposal was evidence of its bad faith in negotiating an agreement, but I find it was the result of the frustration of the Union in its unsuccessful efforts to reach an agreement, and Respondent's unwill- ingness to make any meaningful changes in its proposals of which it had been apprised by the Union as strike issues. I also have considered the violation of Section 8(a)(1), which occurred in the 10(b) period and which in my view was indicative of Respondent's intent to frustrate the collective-bargaining process in this regard, and the various other instances of Respondent's intent to frus- trate agreement which were found by me as set out above. In making the determination that Respondent en- gaged in surface bargaining, I have also considered the Respondent's insistence to impasse on the waiver of the employees' statutory rights, a nonpermissive subject of bargaining, as found infra in this decision. I have also considered Allison's assertion at the hearing that Re- spondent's proposal that the employees statutory rights be waived was merely a bargaining chip on which he did not intend to insist. As found above, I did not credit this assertion. Thus, I find that the totality of the evidence in this case supports a finding that Respondent engaged in surface bargaining in violation of Section 8(a)(5) and (1) of the Act. I have also considered the Board's recent decision in Rescar, Inc., 274 NLRB 1 (1985), in which the Board in reliance on NLRB v. American National Insurance Co., 343 U.S. 395,407-408 (1952), stated: Moreover, it is not the Board's role to sit in judg- ment of the substantive terms of bargaining, but rather to oversee the process to ascertain that the parties are making a sincere effort to reach agree- ment. In the Rescar case, the Board disagreed with the ad- ministrative law judge's conclusion that the employer had tied together broad management-rights and no-strike clauses inflexibly with a severely limited grievance arbi- tration provision, but rather found that two of the clauses had been agreed on earlier in negotiations while the third clause remained a matter of dispute at the time of the cessation of bargaining. Additionally, the Board in the Rescar case did not rely on a statement by the em- ployer's vice president that the employer would not sign a contract noting that the statement had occurred prior to a presettlement agreement and outside the 10(b) period. In the instant case, unlike the Rescar case, all three contract clauses (the broad management-rights clause, the unauthorized work stoppage clause, and the restric- tive grievance procedure) were tied together, and Re- spondent insisted on them without substantial change throughout the course of bargaining to the point of im- passe up to and including the 1 April strike and beyond. Moreover, in the instant case the 8(a)(1) violation found (wherein Supervisor Henry told two employees that the Employer would not sign a contract and that they would be replaced if the employees went on strike) occurred within the 10(b) period, as did certain of the other state- ments to the same effect by others of Respondent's su- pervisors. While the General Counsel's witnesses were 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unable to place the dates of these conversations, their testimony clearly established that certain of these in- stances occurred within the 10(b) period. Moreover, unlike the Rescar case, Respondent in this case insisted on the waiver of the employees' statutory rights, which I have found is further evidence of its intent to frustrate the collective-bargaining process. I note also with the ne- gotiations involved in the instant case an initial agree- ment between the parties may be more difficult to achieve than an amendment to a preexisting agreement. However, I find that Respondent's stance throughout bargaining was that it had to have an agreement that would give it total control, and that it essentially main- tained this inflexible position with respect to the manage- ment-rights clause, the unauthorized work stoppage clause, and the restrictive grievance procedure, and that it followed through on the threat of its supervisors and of Allison that it would replace the employees in the event of a strike. I find also that Chevron Chemical Co., supra, relied on by Respondent, is distinguishable from the instant case. In the Chevron case, the Board found that the employer had not engaged in bad faith or surface bargaining by in- sisting on its management-rights, no-strike, and arbitra- tion proposals. In that case, the Board cited NLRB v. American National Insurance Co., supra: Mhe Board has been afforded flexibility to deter- mine. . . whether a party's conduct at the bargain- ing table evidences a real desire to come into agree- ment. . . and specifically we do not mean to ques- tion in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. In the Chevron case, unlike the instant case, the Board specifically found a lack of other evidence, which would support a finding of bad faith, stating at 47: Finally, no other unfair labor practices are in- volved here, and the record reflects no conduct by Respondent away from the bargaining table which would suggest that its negotiating positions were taken in bad faith. Accordingly, I conclude and find that Respondent en- gaged in surface bargaining in violation of Section 8(a)(5) and (1) of the Act. 2. The alleged insistence to impasse on nonmandatory subjects of bargaining The General Counsel also contends that Respondent violated Section 8(a)(5) and (1) of the Act by its insist- ence to impasse on nonmandatory subjects of bargaining in the unauthorized work stoppage proposal, specifically by its insistence to impasse on its proposal that the Union and employees waive their statutory rights to engage in unfair labor practice strikes and of access to the Board and other Governmental agencies and the courts. The waiver of statutory rights in futuro as was proposed by Respondent in this case is a nonpermissive subject of bar- gaining in conflict with public policy and insistence to impasse thereon violated Section 8(a)(5) and (1) of the Act. See American Cyanamid Co., 235 NLRB 1316, 1324-1325 (1978), enfd. 592 F.2d 356 (7th Cir. 1979). I find that the parties were at an impasse concerning this clause on 15 November 1983, under either Logan's or Allison's version of that meeting. This impasse continued into February 1984 up to and including the 1 April 1984 strike by the employees. Accordingly, I fmd that Respondent violated Section 8(a)(5) and (1) of the Act by insisting to impasse on a nonpermissive subject of bargaining. E. The Alleged 8(a)(3) Violations I find that the evidence supports a finding that the strike was an unfair labor practice strike in protest of Re- spondent's unfair labor practices as found. Although other issues (such as the inspection-right dispute and stewards' pay dispute) were undoubtedly on the table and discussed at the strike vote meeting, the primary focus of the strike was to protest Respondent's inflexible stand at the bargaining table concerning its management rights, grievance, and no-strike proposals, including its proposal that the employees waive their statutory rights. It is undisputed that subsequent to the initiation of the strike by the employees the Respondent commenced to hire permanent replacements. When the employees learned of this and after the Union Business Manager Logan learned that employees of another of Respond- ent's facilities would not support these employees in their strike, the Union's representative offered each of the striking employees back to work unconditionally and each employee did so individually. At that point the Re- spondent ceased to hire permanent replacements and shortly thereafter recalled and allowed to return to work a number of employees who had not yet been perma- nently replaced. It, however, refused to allow the re- mainder of its striking employees to return to work con- tending they had been permanently replaced. As of the date of the hearing, 27 of the striking employees had not been allowed to return to work notwithstanding their un- conditional offer to do so. As I have found that the Respondent violated Section 8(a)(5) of the Act by engaging in surface bargaining and by its insistence to impasse on a nonpermissive subject of bargaining, I conclude that the strike was an unfair labor practice strike. It is well established that employers may not permanently replace employees engaged in an unfair labor practice strike as the Respondent did here. I ac- cordingly find that Respondent violated Section 8(a)(3) of the Act by permanently replacing its striking employ- ees. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES The unfair labor practices of Respondent as found have an effect on commerce within the meaning of Sec- tion 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1.The Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. REICHHOLD CHEMICALS 87 3. The Union is the certified bargaining representative for the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its Kensington, Georgia facility, including lab technicians, but excluding all office clerical employees, professional employees, technical employees, guards and supervisors as de- fined in the Act. 4. Respondent violated Section 8(a)(1) of the Act by the threat of discharge, and the futility of bargaining for a labor agreement with the Employer issued to its em- ployees by Respondent's supervisor. 5. Respondent bargained in bad faith in violation of Section 8(a)(5) and (1) of the Act by engaging in surface bargaining and by insisting to impasse on the waiver of the employees' statutory rights. 6. Respondent violated Section 8(a)(3) and (1) of the Act by permanently replacing its employees who were engaged in an unfair labor practice strike against Re- spondent. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take the following affirmative actions necessary to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(5) and (1) of the Act by engaging in surface bargaining and by insisting to impasse on a waiver of the employees' statutory rights, I shall recommend that Respondent, on request, bargain with the Union as the exclusive repre- sentative of the employees in the appropriate unit con- cerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. Having found that Respondent failed and refused on 6 April 1984, on their unconditional request to return to work, to reinstate its striking employees, I shall recom- mend that Respondent be ordered to offer to all striking employees immediate and full reinstatement to their former positions and make them whole for any loss of earnings or benefits suffered as a result of Respondent's refusal to honor their unconditional request to return to work, with interest thereon, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest shall be computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.] APPENDIX A Respondent's Original Management Rights Proposal of February 24, 1983 Joint Exhibit 1 ARTICLE—MANAGEMENT'S RIGHTS This Agreement is not intended to interfere with, abridge or limit the Company's right to manage its plant. In order to operate its business and except as expressly and specifically limited or restricted by a provision of this Agreement, the Company reserves and retains in full, exclusively and completely, any and all management rights, prerogatives, and privileges previously vested in or exercised by the Company, and the unqualified right to place any or all of such rights into effect without notice to, or negotiations with, the Union. These rights include, but are not limited to: the right to plan, direct, control, increase, or decrease the operations; the right to determine whether the operations or any part thereof continues; the right to establish new jobs and job classifi- cations and to abolish, combine, or change existing jobs, classifications and their requirements; the right to estab- lish the rates of pay for new job classifications; the right to determine from time to time which jobs shall be paid on piece, hourly, piece incentive or bonus rate, including the right to formulate and institute such systems unilater- ally and without notice to any party; the right to deter- mine the price of its product or services, the sales meth- ods, the volume of sales and the methods of production and financing; the right to determine the products to be manufactured, sold or handled and the services to be rendered including their quantity and quality; the right to shift products in and out of the plant; the right to, in its discretion, schedule and assign or reassign work duties for regular and overtime work and to establish reasona- ble standards in accordance with its determination of the needs of the jobs and the operation; the right to increase or decrease the number of jobs, employees, shifts, and/or the number of working hours per day or per week; the right to determine shift schedules and change such scheduling; the right to have its work or any portion thereof including repairs and/or maintenance done by any person, firm or corporation; the right to establish, modify, rescind, or change and the right to enforce safety rules for the orderly conduct of plant operations, including the right to impose discipline, up to and includ- ing discharge, for violation thereof; the right to deter- mine the need for an administration of physical examina- tions, mental tests, or other tests for the security of the employees, plant premises, or property of the Company; the right to determine the qualifications for, and make the selection of, its managerial and supervisory forces; the right to purchase products, materials and parts from any source including the right to determine the purchase price of all such purchases; the right to determine wheth- er to use employees full time or part time; the right to change materials, processes, methods, products, tech- niques and/or machines, equipment and operations and to discontinue or introduce new materials, processes, methods, techniques and/or machines, equipment and 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD products; the right to determine the selection, retention, or substitution of any vending service; the right to deter- mine the method of funding each Company benefit in- cluding the identity and selection of the carrier or trust- ee. The Company shall be the sole judge of applicants for employment as well as employee qualifications, phys- ical fitness and the skills required for each job classifica- tion and the qualifications and standards necessary for any of the jobs it may have or may create in the future and whether such standards and levels are being met; the Company shall determine the number of employees it shall employ at any one time, the number assigned to any particular function, division, or assigned area, the policies affecting the selection and training of new employees, and the right to establish, revise or discontinue policies, practices, procedures, rules and regulations for the con- duct of business, and from time to time to change, amend, modify or abolish such policies, practices, rules and regulations. Subject to the provisions of this Agree- ment, the Company shall have the right to determine when overtime shall be worked and to require employees to work overtime; the right to transfer employees from job to job, work station to work station, and shift to shift, and to change, add to or reduce the number of em- ployees, shift and work schedules; the right to determine whether, when and where there is job opening; the right to separate probationary employees without recourse to any provision of this Agreement; the right, in its sole dis- cretion, to hire or rehire employees, transfer, or layoff employees because of lack of work or other legitimate reason, and recall employees who are laid off; demote, promote, suspend, discipline or discharge for any cause not in violation of this Agreement The rights of man- agement will not be used to discriminate against any em- ployee because of their membership in the Union. It is expressly understood and agreed that all rights heretofore exercised by the Company or inherent in the Company as the owner and operator of the business, or as an incident to the management thereof, not expressly contracted away by a specific provision of this Agree- ment are retained solely by the Company. Any rights granted to or acquired by the employees or the Union under this Agreement or during its life shall have no ap- plication beyond the terms of this Agreement or any re- newal thereof. The failure of the Company to exercise any power, function, authority or right reserved or retained by it, or the exercise of any power, function, authority or right in a particular manner shall not be deemed a waiver of the right of the Company to exercise such power, function, authority, or right, or to preclude the Company from ex- ercising the same in some other manner, so long as it does not conflict with an express provision of this Agree- ment. The Company has and shall retain the right to move, sell, close, liquidate, or consolidate the plant in whole or in part, and to separate its employees in connection with said moving, selling, closing, or liquidating of the plant or any portion thereof; however, in the event the Com- pany decides to do so, it will negotiate with the Union concerning the effects thereof upon the employees. It is fully understood and agreed that the decision to move, sell, close, or liquidate shall rest solely with the Compa- ny and its obligation shall be limited to advising concern- ing such decision and negotiating concerning the effects thereof on the employees. It is agreed that the reserved management rights as set forth herein, or elsewhere in this Agreement, shall not be subject to the grievance and arbitration provisions of this Agreement nor shall they be subject to impairment by an arbitration award under this Agreement. It is further agreed that the Company shall have the unrestricted right to determine where production shall be performed and may, notwithstanding this Agreement or any provision herein, transfer work to or from the loca- tion covered by this Agreement to or from any other lo- cation, as it may deem necessary or appropriate, at any time. APPENDIX B Respondent's Original Unauthorized Work Stoppage Proposal of February 24, 1983 Joint Exhibit 1 ARTICLE—UNAUTHORIZED WORK STOPPAGE For the duration of this Agreement, the Union, its offi- cers, representatives, members and the employees cov- ered by this Agreement, shall not authorize, instigate, cause, aid, encourage, ratify or condone, nor shall any of the aforementioned parties take part in any strike, slow- down, work stoppage, boycott, picketing, sympathy strike, blockage of ingress or egress at the Company's premises, or other interruption or interference of a like or similar nature with the work of the Company includ- ing any manner of stoppage not herein specified or an- ticipated by the parties. Failure or refusal on the part of any employee to comply with any provision of this Arti- cle shall be cause for whatever disciplinary action, in- cluding suspension or discharge, against whatever number of employees is deemed necessary by the Com- pany. In administering such discipline, the Company may distinguish between leaders and other participants in the unauthorized work stoppage, strike, slowdown, or other interference with production. It is agreed that in the event of a work stoppage, pick- eting, or other curtailment of any nature unauthorized by the Union, the Union shall, upon receiving notice there- of, immediately send a telegram to its steward or other representative at the plant, with a copy to the Company, ordering those employees engaged in such illegal activity to return to work and immediately cease the violation. The Union further agrees to use all efforts at its disposal and within its power to see that they do so including the imposition of any and all penalties provided for in the Union's constitution. The failure of the Union to so act, after due notice given by the Company, shall be con- strued to mean that the Union sanctioned or condoned the action of the employees involved. Such communica- tions shall be communicated by the Company as it deems appropriate. The Union further agrees that the work will proceed as ordered and that any complaints as to man- REICHHOLD CHEMICALS 89 agement's orders shall be handled through the Grievance Procedure; and that a refusal to perform work ordered by management shall be considered a violation of this Agreement. In consideration of this "No Strike" pledge by the Union and employees, the Company shall not lock out employees for the duration of this Agreement provided, however, this Agreement should not be construed as re- quiring the Company to stay in continuous operation contrary to its rights contained in the Management's Rights clause of this Agreement. Neither the violation of any provision of this Agreement nor the commission of any act constituting an unfair labor practice or otherwise e made unlawful by any federal, state or local law shall excuse the employees, the Union or the Company from their obligations under the provision of this Agreement. The Union agrees that for the full term of this Agree- ment, and any renewal or extension thereof, it will at all times cooperate fully with the Company in maintaining full production. It is expressly understood and agreed that an employee covered by this Agreement may not withhold their serv- ices from the Company in connection with any labor dis- pute, whether or not at the Employer's premises, and it is agreed that the Union will not authorize or condone the action of any employee in so withholding their serv- ices, including cases where the performance of such services may require that the employees cross and work behind picket lines established by this or other local unions or other labor organizations at any place, includ- ing a customer's place of business. There shall be no re- fusal to work on, handle, or produce any materials or equipment because of a labor dispute affecting this Com- pany, a vendor, purchaser, supplier or carrier of said ma- terials or equipment. The Company shall have the sole and complete right to immediately discharge any employee participating in any unauthorized strike, slowdown, walk-out or any other cessation of work and such employee or employees shall not be entitled to nor have any recourse to any other provision of this Agreement, including the Griev- ance and Arbitration provision. In the event of misconduct prohibited by this Article, neither party shall meet or discuss the merits of the dis- pute until such time as the illegal action is terminated. It is further agreed that if such prohibited activity occurs the Company shall have the unrestricted right to replace any and all such participants and they shall have no fur- ther rights under this Agreement and no action in law or equity or before any administrative agency, including the National Labor Relations Board. This right to replace employees engaging in misconduct prohibited by this Ar- ticle shall be in addition to other disciplinary action, as deemed appropriate by the Company, provided for this Article. APPENDIX C Respondent's Original Grievance Procedure and Arbitration Proposal of February 24, 1983 Joint Exhibit 1 ARTICLE—GRIEVANCE PROCEDURE AND ARBITRATION Section 1. Grievance Procedure. (a) A grievance is a complaint wherein it is alleged that the Company has failed to abide by the terms of this Agreement. It is specifically understood and agreed that no dispute shall be considered subject to the grievance procedure if the matter grieved about is not specifically covered by this Agreement. Should any employee feel that he is aggrieved by an order of management or his supervision, it is understood and agreed the employee shall first obey such order or direction prior to having any recourse to the Grievance Procedure as set forth herein. APPENDIX D Respondent's Management Rights Proposal of October 13, 1983 General Counsel's Exhibit 7 ARTICLE—MANAGEMENT'S RIGHTS This Agreement is not intended to interfere with, abridge or limit the Company's right to manage its plant. In order to operate its business and except as expressly and specifically limited or restricted by a provision of this Agreement, the Company reserves and retains in full, exclusively and completely, any and all manage- ment's rights, prerogatives, and privileges previously vested in or exercised by the Company, and the unquali- fied right to place any or all of such rights into effect. These rights include, but are not limited to: the right to plan, direct, control, increase, or decrease the operations; the right to determine whether the operations or any part thereof continues; the right to establish new jobs and job classifications and to abolish, combine, or change existing jobs, classifications and their requirements; the right to establish the rates of pay for new job classifica- tions; the right to determine the price of its products or services, the sales methods, the volume of sales and the methods of production and financing; the right to deter- mine the products to be manufactured, sold or handled and the services to be rendered including their quantity and quality; the right to shift products in and out of the plant; the right to, in its discretion, schedule and assign or reassign work duties for regular and overtime work; the right to increase or decrease the number of jobs, em- ployees, shifts, and/or the number of working hours per day or per week; the right to determine shift schedules and .change such scheduling; the right to have its work or any portion thereof including repairs and/or mainte- nance done by any person, firm or corporation; the right to establish, modify, rescind, or change and the right to enforce safety rules for the orderly conduct of plant op- 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erations, including the right to impose discipline, up to and including discharge, for violation thereof; the right to determine the need for and administration of physical examinations and mental tests; the right to determine the qualifications for, and make the selection of, its manage- rial and supervisory forces; the right to purchase prod- ucts, materials and parts from any source including the right to determine the purchase price of all such pur- chases; the right to determine whether to use employees full time or part time; the right to change materials, processes, methods, products, techniques and/or ma- chines, equipment and operations and to discontinue or introduce new materials, processes, methods, techniques and/or machines, equipment and products; the right to determine the selection, retention, or substitution of any vending service; the right to determine the method of funding each Company benefit including the identity and selection of the carrier or trustee. The Company shall be the sole judge of applicants for employment, physical fit- ness and the skills required for each job classification and the qualifications and standards necessary for any of the jobs it may have or may create in the future and whether such standards and levels are being met; the Company shall determine the number of employees it shall employ at any one time, the number assigned to any particular function, division, or assigned area and the policies af- fecting the selection and training of new employees. The Company shall have the right to determine when over- time shall be worked and to require employees to work overtime; the right to transfer employees from job to job, work station to work station, and shift to shift, and to change, add to or reduce the number of employees, shift and work schedules; the right to determine whether, when and where there is a job opening; the right to sepa- rate probationary employees without recourse to any provision of this Agreement; the right, in its sole discre- tion, to hire or rehire employees, transfer, or layoff em- ployees because of lack of work or other legitimate rea- sons, and recall employees who are laid off; demote, pro- mote, suspend, discipline or discharge for just cause. The rights of management will not be used to discriminate against any employee because of their membership in the Union. It is expressly understood and agreed that all rights heretofore exercised by the Company or inherent in the Company as the owner and operator of the business, or as an incident to the management thereof, not expressly contracted away by a specific provision of this Agree- ment are retained solely by the Company. Any rights granted to or acquired by the employees or the Union under this Agreement or during its life shall have no ap- plication beyond the terms of this Agreement or any re- newal thereof. The failure of the Company to exercise any power, function, authority or right reserved or retained by it, or the exercise of any power, function, authority or right in a particular manner shall not be deemed a waiver of the right of the Company to exercise such power, function, authority, or right, or to preclude the Company from ex- ercising the same in some other manner, so long as it does not conflict with an express provision of this Agree- ment. The Company has and shall retain the right to move, sell, close, liquidate, or consolidate the plant in whole or in part, and to separate its employees in connection with said moving, selling, closing, or liquidating of the plant or any portion thereof; however, in this event the Com- pany will negotiate with the Union concerning the ef- fects thereof upon the employees. It is fully understood and agreed that the decision to move, sell, close, or liqui- date shall rest solely with the Company and its obliga- tion shall be limited to advising concerning such decision and negotiating concerning the effects thereof on the em- ployees. It is agreed that the reserved management rights as set forth herein, or elsewhere in this Agreement, shall not be subject to the grievance and arbitration provisions of this Agreement nor shall they be subject to impairment by an arbitration award under this Agreement. It is further agreed that the Company shall have the unrestricted right to determine where production shall be performed and may, notwithstanding this Agreement or any provision herein, transfer work to or from the loca- tion covered by this Agreement to or from any other lo- cation, as it may deem necessary or appropriate, at any time. It is understood and agreed that this Management's Rights provision shall not be exercised in such a way as to conflict with any other provision of this Labor Agree- ment. APPENDIX E Respondent's Unauthorized Work Stoppage Proposal of October 13, 1983 General Counsel's Exhibit 8 ARTICLE—UNAUTHORIZED WORK STOPPAGE For the duration of this Agreement, the Union, its offi- cers, representatives, members and the employees cov- ered by this Agreement, shall not authorize, instigate, cause, aid, encourage, ratify or condone, nor shall any of the aforementioned parties take part in any strike, slow- down, work stoppage, boycott, picketing, sympathy strike, blockage of ingress or egress at the Company's premises, or other interruption or interference of a like or similar nature with the work of the Company includ- ing any manner of stoppage not herein specified or an- ticipated by the parties. Failure or refusal on the part of any employee to comply with any provision of this Arti- cle shall be cause for whatever disciplinary action, in- cluding suspension or discharge, against whatever number of employees is deemed necessary by the Com- pany. In administering such discipline, the Company may distinguish between leaders and other participants in the unauthorized work stoppage, strike, slowdown, or other interference with production. It is agreed that in the event of a work stoppage, pick- eting, or other curtailment of any nature unauthorized by the Union, the Union shall, upon receiving notice there- of, immediately send a telegram to its steward or other representative at the plant, with a copy to the Company, REICHHOLD CHEMICALS 91 ordering those employees engaged in such illegal activity to return to work and immediately cease the violation. The Union further agrees to use all efforts at its disposal and within its power to see that they do so including the imposition of any and all penalties provided for in the Union's constitution. The failure of the Union to so act, after due notice given by the Company, shall be con- strued to mean that the Union sanctioned or condoned the action of the employees involved. Such communica- tion shall be communicated by the Company as it deems appropriate. The Union further agrees that the work will proceed as ordered and that any complaints as to man- agement's orders shall be handled through the Grievance Procedure; and that a refusal to perform work ordered by management shall be considered a violation of this Agreement. In consideration of this "No Strike" pledge by the Union and employees, the Company shall not lock out employees for the duration of this Agreement provided, however, this Agreement shall not be construed as re- quiring the Company to stay in continuous operation contrary to its rights contained in the Management's Rights clause of this Agreement. Neither the violation of any provision of this Agreement nor the commission of any act constituting an unfair labor practice or otherwise made unlawful by any federal, state or local law shall excuse the employees, the Union or the Company from their obligations under the provisions of this Agreement. The Union agrees that for the full term of this Agree- ment, and any renewal or extension thereof, it will at all times cooperate fully with the Company in maintaining full production. It is expressly understood and agreed that an employee covered by this Agreement may not withhold their serv- ices from the Company in connection with any labor dis- pute, whether or not at the Employer's premises, and it is agreed that the Union will not authorize or condone the action of any employee in so withholding their serv- ices. There shall be no refusal to work on, handle, or produce any materials or equipment because of a labor dispute affecting this Company, a vendor, purchaser, supplier or carrier of said materials or equipment. The Company shall have the sole and complete right to immediately discharge any employee participating in any unauthorized strike, slowdown, walk-out or other cessation of work and except for the question of whether an employee actually participated in such unauthorized action, such employee or employees shall not be entitled to nor have any recourse to any other provision of this Agreement, including the Grievance and Arbitration provision. In the event of misconduct prohibited by this Article, neither party shall meet or discuss the merits of the dis- pute until such time as the illegal action is terminated. It is further agreed that if such prohibited activity occurs the Company shall have the unrestricted right to replace any and all such participants and they shall have no fur- ther rights under this Agreement and no action in law or equity or before any administrative agency, including the National Labor Relations Board. This right to replace employees engaging in misconduct prohibited by this Ar- ticle shall be in addition to other disciplinary action, as deemed appropriate by the Company, provided for in this Article.