Challenge-Cook Brothers

CHALLENGE—COOK BROS. 387 Cook Brothers Enterprises, Inc., d/b/a Challenge— Cook Brothers and Machinists Automotive Trades, District Lodge No. 190 of Northern California, affiliated with International Associa- tion of Machinists and Aerospace Workers, AFL-CIO. Case 32-CA-2909 April 8, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On June 18, 1982, Administrative Law Judge David P. McDonald issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel and the Charging Party each filed limited cross-exceptions and briefs in support. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, 2 as modified, and to adopt the recom- mended Order, as modified. The judge found that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by: engaging in bad-faith bargaining with the Union; refusing to recognize and bargain with the Union; failing to provide information requested by the Union for bargaining; interrogating strike replacement appli- cants about their union sympathies; unilaterally eliminating a unit position in retaliation for the em- ployees striking; and refusing to reinstate unfair labor practice strikers on their unconditional offer to return to work. We agree with the judge's find- ' In sec. III,B,3, par 2 of the judge's decision, the sentence beginning with, "Burnett's recollection . . . ." should read, "Thacker's recollection 11 2 In adopting the judge's determination that the Respondent's question- ing of stnke replacement applicants about their union sympathies consti- tuted unlawful interrogation, we note that he nuscharactenzes certain as- pects of W A. Sheaffer Pen Co., 199 NLRB 242 (1972) Although he found, and we agree, that the Sheaffer case is distinguishable from the in- stant case and that it affords no protection for the Respondent's actions, the judge maccurately states that Sheaffer involved employer questioning of employees rather than job applicants. Furthermore, the prestnke poll of employees that did occur in that case was conducted by the union and not the employer In the absence of exceptions, we adopt, pro forma, the judge's dismissal of the allegation that the Respondent coercively interrogated applicant Andrew Burnett, noting that in reaching his conclusion the judge relied on Burnett's testimony concerning his subjective reaction to the inter- view questions, i e, that he was not coerced We adopt the judge's finding that the Respondent's unilateral elimina- tion of the mechanic position was retaliatory and in violation of Sec 8(aX5), (3), and (1) It violates Sec 8(a)(5) because, even if viewed as a partial shutdown of the Respondent's operations, the action could not properly be characterized as the mere exercise of an entrepreneurial pre- rogative when the decision was made for antiunion motives See Straw- sine Mfg. Co., 280 NLRB 553 (1986). ings in all respects except for his determination that the Respondent violated Section 8(a)(5) and (1) of the Act by engaging in bad-faith bargaining tactics. I. THE SURFACE BARGAINING ALLEGATIONS As fully set forth in the judge's decision, the Re- spondent and the Union have had a bargaining re- lationship dating back approximately 40 years. The parties' most recent collective-bargaining agree- ment expired September 1, 1979. Following the ex- piration of that contract, six negotiation sessions took place. At the initial meeting on September 19, 1979, the Union presented its initial contract offer. On October 2, 1979, the Respondent provided its counterproposals. Citing adverse economic condi- tions in the industry, on October 19, 1979, the Re- spondent advised the Union that contrary to past practice it would not be able to match the East Bay area wage rates. Despite this setback on wages, the parties agreed that same day on certain pension issues. Thereafter, the Respondent provid- ed the Union with a written version of its latest offer. This document addressed the duration of the agreement, provided a $1-an-hour wage increase retroactive to the expiration of the previous agree- ment, provided for hourly wage increases for each of the remaining years of the contract, proposed a retroactive increase in the amount the Respondent would contribute to the pension plan, and provided increases in the Respondent's pension contributions for future contract years. These proposals repre- sented increases on both wages and pensions. The Respondent's letter also stated that other terms and conditions were to remain as they had been under the last contract. In November 1979 the parties met again. Wages were the primary topic. Neither side altered its po- sition, with the Respondent pointing to a gloomy economy as limiting its financial resources and the Union adhering to its position that the Respondent meet the area's Franchise Truck Dealers wage rate as it had done in the past. No agreement was reached. On January 21, 1980, the Respondent's three employees—two partsmen and the mechan- ic—began an economic strike. On February 5, 1980, the parties met in the office of a Federal mediator. The meeting lasted only 7 minutes. The Respondent announced its ad- herence to its previous offer, but without retroac- tivity on wages and pension contributions. The Re- spondent also stated that it wanted to eliminate the union-security clause and that it intended to hire permanent replacements for the striking employees. With the Respondent's presentation of its positions, the union representatives simply left the meeting and went to the picket line to inform the strikers of 288 NLRB No. 46 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD these developments. Sometime in early February, the "On Strike" message on the picket signs was changed to "Unfair." In early March, the Respondent hired three re- placements to fill in for the two striking partsmen, but allowed the mechanic's slot to remain unfilled. On March 17, 1980, the Respondent filed an RM petition, which it later withdrew. During April and May 1980, the Union requested information for bargaining, some of which the Respondent provid- ed in June. Following the Union's unconditional offer that the strikers return to work, the Respond- ent agreed to place them on a preferential rehire list. When the parties met for the last time on July 1, 1980, however, the Respondent informed the Union that it had eliminated the mechanic's posi- tion, that the partsmen positions were filled, and that it had not changed its stance regarding the elimination of the union-security provision. The judge determined that the course of the par- ties' negotiations reveals no evidence of bad faith on the part of the Respondent before February 5. Although noting that the Respondent had departed from past practice by refusing to match area wage standards, the judge found that the Respondent's explanation for its position—the changing econom- ic conditions and the reasonable (and, ultimately, accurate) prediction that the industry was going to be facing even greater fmancial difficulties in the future—justified its break from past years on wages. The judge, however, found that the events of February 5 demonstrated an abrupt change in tactics, marking the first evidence of the Respond- ent's intent to frustrate meaningful bargaining. The judge reasoned that while the Respondent's Febru- ary 5 conduct alone might signify nothing more than a permissibly hardened approach to bargain- ing, its subsequent rigid insistence on the "predict- ably unacceptable" elimination of the long-estab- lished union-security provision reveals the Re- spondent's unlawful predetermination not to reach agreement. Accordingly, he concluded that the Re- spondent's proposed withdrawal of the union-secu- rity clause and retroactive pay and its subsequent "refusal to bargain" over withdrawal of the union- security clause violate Section 8(a)(5) of the Act. We disagree. Although the judge correctly notes that the to- tality of conduct must be assessed before it can be determined whether a party has engaged in bad- faith or surface bargaining, 3 we believe the judge 3 The judge relied on Tomco Communications, 220 NLRB 636 (1975), enf. denied 567 F.2d 871 (9th Cir. 1978). Although the court reversed the Board's finding of a violation, it endorsed the Board's analysis that all the relevant evidence must be considered. The court stated (567 F 2d at 883, citing NLRB v. Stanislaus Implement Co., 226 F 2d 377, 381 (9th ,Cir, 1955)): failed to give adequate consideration to all the rele- vant circumstances of bargaining in reaching his conclusion. First, as noted above, during the 1979 bargaining sessions there was give and take on both sides on a variety of issues. No evidence of bad faith exists from that stage of negotiations. Moreover, the evi- dence also discloses valid economic reasons for the Respondent's failure to adopt the area wage rate, the biggest point of disagreement between the par- ties. Following a period of 2 months in which no contract talks took place, the Union began an eco- nomic strike in late January 1980. It was only after the Union took this hardened stance that the Re- spondent, in turn, hardened its approach by main- taining its position on economics, withdrawing ret- roactive pay and pension contributions, proposing an open shop through the elimination of the union- security clause, and announcing its intention to remain open during the strike by using replace- ments. The Respondent's economic outlook for its in- dustry had not improved since it had first enunci- ated to the Union its reasons for not being able to accede to its money demands. In fact, the only per- tinent intervening event between the time the Re- spondent first announced its position on economics and the February 5 meeting was the strike—a matter that could only worsen the Respondent's al- ready shaky fmancial condition. In these circum- stances, the Respondent's decision to eliminate the retroactive application of its wage and pension pro- posals cannot fairly be characterized as regressive or baseless, but rather it is a reasonable reaction to the Union's exertion of increased economic pres- sure by striking. Regarding the Respondent's proposal to elimi- nate union security as a condition of employment, it should be noted that the existence of such a clause in previous contracts does not by itself obli- gate the parties to include it in successive con- tracts. See, e.g., H. K Porter Co. V. NLRB, 397 U.S. 99 (1970); Frontier Dodge, 272 NLRB 722, 730 fn. 24 (1984); and American Thread Co., 274 NLRB 1112 (1985). By the same token, just as a party may seek to change contract provisions previously agreed to, a party may choose either to modify its bargaining proposals during the course of negotia- tions or to hold fast to them. As stated in Atlas Metal Parts Co. v. NLRB:4 A state of nund such as good faith is not determined by a consid- eration of events viewed separately. The picture is created by a con- sideration of all the facts viewed as an integrated whole. 4 660 F.2d 304, 308 (7th Qr. 1981). CHALLENGE—COOK BROS. 389 An employer is entitled to advance a posi- tion sincerely held, notwithstanding the em- ployer's having taken a different position at an earlier time. . . . Union security . . . [is a] mandatory [subject] of bargaining, and "[a] party . . . is entitled to stand firm on a posi- tion if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force agreement by the other party." As the court there recognized, the bargaining proc- ess is one characterized by displays of relative strengths and strategic posturing. The parties are free to adjust their positions in response to changes occurring during negotiations. In this instance the Respondent countered the Union's show of strength (the strike) by reemphasizing and expand- ing its previously announced economic position, by seeking to curtail an aspect of the Union's strength (the union-security clause), and by attempting to strengthen its own hand by continuing operations with replacement workers. These developments, viewed in the context of the parties' entire bargain- ing environment, do not, as the judge finds, reveal an intent to frustrate agreement, but rather are rea- sonable, if not predictable, reactions of manage- ment facing difficult economic conditions and a tough union counterpart. In these circumstances, therefore, we find that the substance of the Re- spondent's February 5 proposals does not establish that the Respondent was engaging in regressive bargaining. In addition, we note that the conduct of the par- ties during the February 5 meeting does not sub- stantiate the judge's finding that the Respondent was employing unlawful bargaining techniques. The judge aptly notes that once the Respondent announced its revised positions, the union repre- sentatives did not try to discuss these issues or to engage in negotiations over any other matters. In- stead, the union team asked the Respondent for clarification on the meaning of the proposals and, on receiving the explanation, simply left the meet- ing. No further questions or dialogue took place, despite the fact that there is no evidence that such an effort by the Union would have been futile. The session ended with the union representatives abruptly departing less than 10 minutes after its start. What the Union was saying by its actions, if not in words, was that it was remaining fixed to its pre-February 5 positions. Clearly, both sides were engaging in hard bargaining tactics, and not the Respondent alone. Finally, because the judge made his finding of surface bargaining on a totality of conduct basis, he also relies on the Respondent's subsequent adher- ence to its proposal to delete the union-security clause as indicative of a predisposition to thwart agreement. As stated above, a party may stand firm by a bargaining proposal legitimately proffered. See Atlas Metal Parts Co. v. NLRB, supra; Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), and cases cited therein. In this case the General Coun- sel has failed to adduce sufficient evidence to show that the Respondent asserted its proposal disingen- uously or was unwilling to discuss it with the Union. There is also no evidence that in maintain- ing its position on open shop that the Respondent was motivated by bad faith or an intent to frustrate agreement. See American Thread Co., supra. In- stead, we fmd that the Respondent's adherence to the elimination of union security was a reasonable bargaining stance under all the circumstances. Ac- cordingly, our analysis of the Respondent's post- strike bargaining strategy provides no basis for concluding that the Respondent violated its duty to bargain in good faith. H. WITHDRAWAL OF RECOGNITION FROM THE UNION We agree with the judge's determination that the Respondent failed to establish a good-faith doubt about the Union's continued majority and that its withdrawal of recognition from the Union and re- fusal to bargain and provide information violates Section 8(a)(5) and (1). In reaching this conclusion, however, we place no reliance on Pennco, Inc., 250 NLRB 717 (1980), and rely instead on the Board's recent decision in Station KKHI, 284 NLRB 1339 (1987). In Station KKHI, the Board overruled Pennco and the presumption that strike replacement employees support the union in the same propor- tion as the striking employees. The Board will no longer make any presumption of replacement em- ployees' support or nonsupport for the union, but will require 'some further evidence of union non- support' before concluding that an employer's claim of good-faith doubt of the union's majority is sufficient to rebut the overall presumption of con- tinuing majority status."5 In Station KKHI, the employer's evidence of the union's loss of majority consisted of its five re- placement employees' regularly crossing the union's picket line at a time when there were but three remaining striking employees. The Board found that neither their repeated crossings of the picket line, nor the union's failure to contact the re- placements during the strike, was sufficient to dem- onstrate convincingly what the replacements' senti- ments toward union representation were. Absent 'Station KKHI, supra. 390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other evidence of the replacements' preference, the Board concluded that there was no basis for a good-faith belief that the union lacked majority support. Similarly, in this case the only evidence of non- support for the Union, other than the replacements' daily crossing the picket line to report to work, consists of tainted—and thereby unreliable—state- ments from the Respondent's managers that the re- placements opposed union representation. 8 In the absence of any objective and reliable evidence, therefore, we find no good-faith basis for the Re- spondent's asserted belief that the Union failed to enjoy majority support. In these circumstances, we fmd that the Respondent's withdrawal of recogni- tion and subsequent refusal and delay in providing the Union with requested information violate Sec- tion 8(a)(5) and (1) of the Act. III. THE STRIKERS' REINSTATEMENT RIGHTS Based on his finding that the Respondent en- gaged in unlawful surface bargaining beginning February 5, 1980, the judge concluded that the economic strike begun January 21, 1980, was there- by prolonged and converted into an unfair labor practice strike. In section 4 of his decision, there- fore, the judge provides for the reinstatement rights of the strikers as unfair labor practice strik- ers, that is, finding that they are entitled to rein- statement to their former jobs as of the date of their unconditional offer to return to work, May 23, 1980. This is so because he found that the strike converted from an economic strike into an unfair labor practice strike before the March 10, 1980 date by which the Respondent had hired perma- nent replacements for striking partsmen Risso and Effinger. As set forth above, we do not agree that the Respondent's bargaining conduct during Febru- ary was unlawful and, consequently, we do not adopt his fmding that the strike became an unfair labor practice strike prior to the hiring of replace- ments. We agree, however, with the judge's find- ings that the Respondent subsequently engaged in a number of other unlawful activities that, together, had the effect of converting the strike into an unfair labor practice strike. Specifically, beginning on March 17, 1980, as a result of its unlawful inter- rogation of strike replacement applicants, the Re- spondent refused to recognize the Union's contin- ued majority status and withdrew recognition from 6 The Judge found, and we agree, that the response of the three re- placements who were hired were tainted because they were given in a coercive atmosphere, arising from the unlawful interrogations of these employees concerning their union sympathies In such circumstances, as noted by the Judge, an employer cannot rely on the results of its unfair labor practice conduct to Justify its refusal to bargain with an incumbent 111110n the Union as the representative of the employees. Thereafter, the Respondent refused to bargain with the Union, refused to provide the Union with infor- mation it had requested for bargaining, and an- nounced its retaliatory elimination of the position of journeyman mechanic. These actions foreseeably operated to prolong the strike. In light of these fmdings, we differ with the judge only about the date on which the strike converted to an unfair labor practice strike. Because we find that the strike did not convert until after the replacements for the striking parts- men were hired, we adopt the judge's alternative reinstatement remedy, which provides that the two partsmen were entitled only to preferential rehiring as of the date of their unconditional offer to return. It is undisputed, however, that the Respondent failed to rehire the partsmen when openings in their positions arose in February 1981. Therefore, we find that Risso and Effinger are entitled to rein- statement as of that time. Because no replacement was hired for the mechanic, we also adopt the judge's additional finding that Lovett is entitled to reinstatement to his position as of his May 23, 1980 unconditional offer to return. 7 Accordingly, the judge's remedy is modified to provide that Risso and Effinger be offered reinstatement to their former positions as partsmen or, if such positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights, dismissing, if necessary, any employees hired after February 1981 to replace them. The Re- spondent will make them whole for any loss of pay they suffered by reasons of its refusal to reinstate them as of February 1981, 8 computed in the manner prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). 9 Lovett is to be of- fered reinstatement to his position as mechanic, and backpay is to be computed as of May 23, 1980, in the manner described above. 7 We note that even if the strike were not found to have converted to an unfair labor practice strike the reinstatement rights of the strikers would not be affected. 8 Deternunation of the precise dates in February 1981 on which Risso and Effinger should have been reinstated is left to the compliance stage of this proceeding. 9 In accordance with our decision m New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.0 § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). CHALLENGE-COOK BROS. 391 AMENDED CONCLUSIONS OF LAW 1. In Conclusion of Law 6, delete subparagraph (a) and reletter subparagraphs (b), (c), and (d) as (a), (b), and (c), respectively. 2. In Conclusion of Law 7, substitute "March 17, 1980" for "February 5, 1980" , ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Cook Brothers Enterprises, Inc., d/bia Challenge-Cook Brothers, Oakland, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) Offer Clarence Lovett, Larry Risso, and Gordon Effinger immediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if neces- sary, any partsmen replacements hired after Febru- ary 1981, and make such employees whole for any loss of earnings resulting from its failure properly to reinstate them in the manner set forth in the sec- tion of this decision entitled 'The Strikers' Rein- statement Rights." 2. Substitute the following for paragraph 2(c). "(c) Open its service department at the Oakland site, restoring the mechanical work to the bargain- ing unit." 3. Substitute the attached notice for that of the administrative law judge. 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. Section 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 interrogate our applicants for em- ployment concerning their union sympathies. WE WILL NOT refuse to recognize and bargain collectively in good faith with the Machinists Automotive Trades, District Lodge No. 190 of Northern California, affiliated with International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive bargaining agent in the following appropriate unit: All journeymen, general mechanics, field serv- ice employees, trainee mechanics, helpers, parts employees, apprentices, garage employ- ees, assemblers, maintenance and custodial em-, ployees employed by Respondent at its place of business located at 7101 San Leandro Street, Oakland, California; excluding profes- sional employees, truck sales, office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT refuse or delay to supply the Union with necessary and relevant bargaining in- formation it has requested. WE WILL NOT unilaterally make or effect any changes in the working conditions of the bargain- ing unit, by eliminating a unit position, without first giving notice to the Union, the collective-bar- gaining representative and affording such repre- sentative an opportunity to bargain collectively re- garding such change. WE WILL NOT eliminate bargaining unit work or pay customers to perform the bargaining unit work, because of the union activities of our em- ployees. WE WILL NOT refuse to reinstate employees or otherwise discriminate against our employees, be- cause of their union activities. WE WILL NOT discourage membership in the above-named Union, or in any other labor organi- zation, by refusing to reinstate unfair labor practice strikers upon their unconditional request. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively in good faith with the Machinists Automotive Trades, District Lodge No. 190 of Northern California, af- filiated with International Association of Machin- ists and Aerospace Workers, AFL-CIO, as the ex- clusive bargaining representative of the employees in the appropriate unit described above, concerning rates of pay, wages, hours, or other terms and con- ditions of employment and provide relevant and es- sential information when requested by the Union and, if an agreement is reached, embody it in a signed contract. 392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL offer Clarence Lovett, Larry Risso, and Gordon Effmger immediate and full reinstate- ment to their former jobs or, if such positions no longer exist, to substantially equivalent positions,' without prejudice to their seniority or other rights and privileges previously enjoyed, discharging, if necessary, any partsmen replacements hired after February 1981, and make such employees whole for any loss of earnings resulting from our failure to reinstate them with interest. WE WILL open our service department at the Oakland site and restore the lost mechanical work to the bargaining unit. FINDINGS OF FACT I. JURISDICTION The Respondent admits that it is a California corpora- tion, with an office and a place of business in Oakland, California, engaged in the nonretail sales and service of construction equipment. During the last 12 months, Re- spondent, in the course and conduct of its business oper- ations, sold and shipped goods or services valued in excess of $50,000 directly to customers located outside the State of California. The complaint alleges, the Re- spondent admits, and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION COOK BROTHERS ENTERPRISES, INC., D/B/A CHALLENGE-COOK BROTHERS Marcia .1. Canning, Esq., for the General Counsel. George B. Smith, Esq. (Constangy, Brooks & Smith), of Atlanta, Georgia, for the Respondent. Burton F. Boltuch, Esq. (Beeson, Tayer, Kovach & Silbert), of San Francisco, California, for the Charging Party. DECISION n STATEMENT OF THE CASE DAVID P. McDoNALD, Administrative Law Judge. This case was tried before me at Oakland, California, on March 31 and April 1, 1981, 1 pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 32 on October 16, and subse- quently amended on March 18 and April 1, 1981, 2 which was based on a charge filed on July 28 by the Machinists Automotive Trades, District Lodge No. 190 of Northern California, affiliated with International Association of Machinists and Aerospace Workers, AFL-CIO (the Union). In general the complaint alleges that Cook Brothers Enterprises, Inc., d/b/a Challenge—Cook Brothers (the Respondent or the Company), has engaged in certain violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Since the close of the hearing, briefs have been received from all parties. On the entire record, my observation of the witnesses, and the consideration of the submitted briefs, I make the following All dates are in 1980 unless otherwise stated. 2 During the hearing the General Counsel was allowed to amend the complaint to allege that Gary Morris was a statutory supervisor, to which the Respondent admitted in an oral stipulation and further alleged that on "approximately 50 separate occasions between February 1, 1980 and March 10, 1980 the Respondent by Morris had unlawfully interrogat- ed job applicants regarding their union sympathies and activities," m vio- lation of Sec. 8(aX1) of the Act The Union is a labor organization within the meaning of Section 2(5) of the Act. in. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues The primary issues are whether the Respondent violat- ed 1. Section 8(a)(1) of the Act by unlawfully interrogat- ing job applicants regarding their union sympathies and activities. 2. Section 8(a)(3) and (1) by its elimination of the posi- tion of journeyman mechanic and its failure and refusal to reinstate three allegedly unfair labor practice strikers to their former positions after the Union made valid un- conditional offers to return to work. 3. Section 8(a)(5) and (1) by making regressive propos- als: withdrawing previously agreed-to provisions on union security and retroactivity; withdrawing recogni- tion of the Union as the exclusive collective-bargaining representative at a time when it allegedly lacked objec- tive considerations to believe the Union no longer repre- sented a majority of its employees; refusing to meet, bar- gain, and supply relevant information requested and needed by the Union in its role as the exclusive repre- sentative of its employees; and eliminating the position of journeyman mechanic without notice or bargaining with the Union. B. The Facts 1. Background The Respondent is primarily engaged in the manufac- ture of cement mixers at its plants in Ohio, Georgia, and Industry, California. It also operates a sales office in Oakland, California, where it maintains a parts and serv- ice department to service mixers on both a warranty and nonwarranty basis. Prior to January 21, the Respondent employed Larry Risso and Gordon Effmger as partsmen, and Clarence Lovett as journeyman mechanic. The parties stipulated that the Respondent and the Union have had a collective-bargaining relationship since at least 1965. The Union's business representative, Rich- ard Harold Spencer, inspected all former collective-bar- gaining agreements between the parties and discovered CHALLENGE—COOK BROS. 393 they extended back to the 1940s, with the Union acting as the exclusive collective-bargaining representative of certain employees of the Respondent. Each successive collective-bargaining agreement, from the 1940, to the most recent, of which was effective from September 1, 1976, to September 1, 1979, contained a union shop union-security clause. In fact, the Respondent had never proposed the elimination of this clause until February 5, 1980. At the trial it was stipulated that the Respondent has union shop union-security provisions in all of its cur- rent contracts at its other plants in Georgia, Ohio, and Industry, California. The Ohio plant previously had a maintenance-of-membership union-security provision, which was changed to a union shop form of union secu- rity in the current contract. Until the 1979 bargaining sessions, the Company had traditionally accepted the East Bay Area wage rate schedules, with occasional fringe benefits modifications. 2. Negotiations The Company and the Union met on six occasions for the purpose of negotiating a new collective-bargaining agreement: September 19, October 2 and 19, and Novem- ber 15, 1979, and February 5 and July 1, 1980, Oyvind Frock, Respondent's director of industrial relations, rep- resented the Company at all the sessions and was assisted by Gary Morris. Richard Spencer, a union business rep- resentative, was the only individual to represent the Union at the first three sessions. Subsequently, Michael J. Day, the Union's area director, became the Union's chief negotiator at the remaining sessions, and James Edwards, a union business representative, was present during the February 5 meeting. The ,first session, on September 19, 1979, began with Spencer presenting the Union's opening proposal. It was admittedly an inflated package including increased vaca- tion schedules, additional holidays, vision care, retiree health and welfare, and a $75-per-month increase in pen- sion contributions. As in the past, the goal of the Union was to secure the area wage settlement, which had al- ready been reached with the Franchise Truck Dealers. It called for a $3.40 hourly wage increase over the next 3 years. The Company presented its counterproposal at the next session on October 2, 1979, '7 which was below the area wage rate. The Union did not change its original proposal. Spencer testified that at one of their meetings he told Frock that the Union would like to maintain the area rates and conditions. Both Frock and Spencer left the October 2 meeting with the feeling that eventually they would arrive at the area wage rate. Early in October 1979, the Federal Reserve Board an- nounced its decision to tighten the money supply and thus raise interest rates. The Respondent's business is di- rectly tied to the construction industry. The Company reevaluated the prevailing business conditions and the ap- proaching economic climate and concluded the Federal Reserve policy would have a significant adverse impact on the building industry and its own profits. Based on this evaluation the Company concluded that it could no longer fmancially afford to accept the area wage rates. At the October 19 sesssion, Frock's announcement that the Respondent could not meet the area wage rate total- ly shocked Spencer. Frock had explained to the Union, with a great deal of detail, that due to the economy, the Federal Reserve Board's action, and the pending slump in the construction business, the Company could not afford to pay the area wage rate. Spencer testified the Union accepted the Respondent's counterpension propos- al of $20 per year and dropped its demands for vision care, retiree health and welfare, additional holidays, and increased vacations. The Union never again raised these issues in subsequent sessions. In response to the Union's request, Frock restated the Company's October 19, 1979 final offer in his letter of October 26, 1979. It provided a 3-year contract from September 1, 1979, to September 1, 1982; a $1-per-hour retroactive increase to September 1, 1979, and an addi- tional wage increase of 60 cents and 50 cents per hour for each succeeding year; a $20 monthly increase in the pension contribution retroactive to September 1, 1979, and an additional $20 increase per month for each suc- ceeding year of the contract. Frock's letter also con- tained a list of agreed changes and concluded with the sentence: "All other terms and conditions of the 1976- 1979 agreement were to remain unchanged." The letter did not make reference to the Union's initial demand for vision care, retiree health and welfare, increased vaca- tions, or the union-security clause. This letter did repre- sent a 10-cent-per-hour increase in wages and an increase in the Company's contribution to the pension fund. Michael Day, area director for the Union, became the chief negotiator and was actively involved in the negoti- ations at the November 15, 1979 session. That meeting dealt mainly with wages, with neither side changing their positions. The Respondent stated that, based on the economic forecast, it could not financially afford to meet the area rates. Day's goal remained unchanged. The Union wanted the Franchise Truck Dealers' agreed wage. He showed Frock a copy of the Franchise Truck Dealers' final settlement. Frock recalled that Day said, "We're in a box that we have these area rates that we have to maintain." The three employees of the unit initiated an economic strike against the Respondent on January 21. The two partsmen, Risso and Effinger, testified they struck in re- sponse to the Company's final offer. Day and Edwards, representing the Union, and Frock and Morris, representing the Company, met for the next session at the Federal mediator's office in San Francisco on February 5. The entire meeting lasted only 7 minutes. Frock announced that the Company had not changed its prior final offer, except that the Company was with- drawing the retroactive portion of the wage and pension agreements, it intended to hire permanent replacements for the strikers, and it wanted an open shop. Frock testi- fied that he did not propose an open shop, but a modifi- cation that would not require the permanent replace- ments to join the Union. Al. the beginning of the hearing, all parties stipulated to the following: Six, it is stipulated that prior to the strike, during the negotiation session of 1979, Challenge—Cook Brothers, Inc. made no mention of proposing an 394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD open shop and/or eliminating the union-security provision. Seven, it is stipulated that at the first bargaining session held in 1980—which was on February 5, 1980—Challenge—Cook Brothers, Inc. withdrew its proposal that wage increases would be retroactive to the expiration date of the prior contract, and that it proposed at this meeting that the union-security provision be eliminated and that the facility be an open shop. Day was upset by the proposed elimination of the union- security clause and felt he never had an opportunity "to negotiate their position on wages. Immediately after the February meeting, Day and Ed- wards proceeded to the picket line where Day informed Risso and Effinger of the latest developments. The strik- ers kept each other informed and had relayed the infor- mation to any striker who was not present. Risso testi- fied that even if the Respondent had met their wage de- mands, he would not have given up their strike if it meant accepting and open shop. The original picket signs stated "On Strike." However, at some point the signs were changed to read "Unfair." The various witnesses were able to agree when the change was made. Edwards believed it was after the February 5 meeting. Spencer was of the belief that the "Unfair" sign was raised after an unfair labor practice charge was filed on February 1 and taken down when the charge was dismissed on March 10. The "Unfair" signs again reappeared at an unknown date and have re- mained. Spencer testified that the word "Unfair" was added because of the Respondent's unfair labor practices, including the deletion of the mechanic's position and the regressive proposals such as the open shop and the elimi- nation of the union-security clause. 3. RM petition The Respondent placed advertisements in the local newspapers for the position of partsmen. The ad indicat- ed that a labor dispute was in progress. When the appli- cants arrived it was necessary for them to cross the picket line to file their applications. Approximately 50 in- dividuals responded to the advertisement. Gary Morris interviewed each applicant, over a period of 2 to 3 weeks, and asked them how they felt about unions, were they for or against them, and would they cross the picket line if they received the job. 3 Morris indicated the purpose of his question, concerning the picket line, was to be certain if they hired an individual he would not be afraid to cross the line and would return to work each day. All the applicants stated they would cross the picket line and none indicated they were prounion. The record is not clear if the questions concerning unions were general or referred specifically to the Machinists Union.4 Morris made the final decision to hire Andrew 3 Gary Morris was the Respondent's parts and service manager. 4 Frock had instructed Moms to ask each applicant if they would cross the picket line and what were their feelings toward unions Burnett, Kelly Thacker, and David Jenkins, but only after he conferred with Holloway and Frock. Morris stated his selection of these three men was based on their experience and qualifications. While interviewing Thacker, Morris asked him if he was a member of a union, would he cross the picket line, and was he for or against unions. Thacker replied that he was against unions. Although he was presently a member of a union, he wanted to withdraw and take a nonunion position. Bumett's recollection was slightly different. He recalled that he was interviewed separately on the same day by both Morris and Holloway. 3 They both informed him of the working conditions and benefits, and that there was a strike in progress. Someone also told him that there may be some type of vote on the Union. Since he had answered an ad that mentioned that there was a labor dispute in progress and he crossed the picket line to apply for the job, Thacker felt it was obvious he was willing to cross the picket line and did not favor unions. However, he could not recall making any statement con- cerning unions during the interview and remarked, "I am very definitely antiunion, and I'd stand on my soapbox if somebody got me started." Morris asked Burnett the same questions that he had asked Thacker. Burnett also expressed his dislike for unions in general and his willingness to cross the picket live. Morris could not fully recall the interview with Jen- kins, nor the latter's responses. After the interviews were completed, Morris informed Holloway that these men did not want a union. When they were hired on March 3, 4, and 10, Holloway in- structed Morris to send each new man to his office. Holloway stated these meetings were not interviews be- cause they had already been hired. He was simply fol- lowing established policy of welcoming new employees and explaining to them the working conditions and bene- fits. When he mentioned the existence of the strike, they all responded that they did not wish to be represented by a union. Holloway could not recall if the men specifical- ly mentioned the Machinists Union. Based on the infor- mation he received directly from these three permanent partsmen replacements, Holloway dictated and signed the following statement on March 10, 1980: I am now and since July 1973 have been Branch Manger of Challenge—Cook Bros. Sales & Service, Northern California Division. Within the past three weeks David Jenkins, Trainee Parts Technician, Kelly Thacker, Trainee Parts Technician, and Andrew Burnett, Trainee Parts Technician, have informed me they do not wish to be represented by the Machinists Union. Except for the change in his job position, Morris signed an identical document, which he thought was prepared by Frock. 6 Morris insisted that although he did not pre- 5 William E. Holloway was the branch manager for the Respondent at the Northern California division, Oakland, California. 6 Frock testified that he and their labor attorney suggested the word- ing, but Moms and Holloway were to use the wording only if it fit the circumstances. CHALLENGE—COOK BROS. 395 pare the statement, it was true and based on information he received from each trainee during their interviews. On March 17, 1980, the Respondent filed an RM peti- tion at the National Labor Relations Board based on ob- jective considerations that the Machinists no longer rep- resented a majority of their employees. Frock testified that the above statements signed by Holloway and Morris were the only objective considerations that the Respondent relied on to support the RM petition. The RM hearing was held on April 11 and during a recess Spencer approached Frock and asked if they could not get back to the bargaining table without pro- ceeding through the hearing and election process. Frock expressed a willingness to return to the bargaining table, but indicated the Company's position on the open shop and preferential hiring had not changed. Since the Union's policy is to not sign an open-shop contract, Spencer felt that Frock's response ended any chance of returning to the bargaining table at that time. This con- versation was followed by a letter from the Union's at- torney, dated April 22, 1980, to the Respondent. The letter requested that "the Company immediately recom- mence collective bargaining sessions and commence bar- gaining in good faith." In addition the letter requested that the Company supply information that the Union felt it needed to adequately perform its duties as the bargain- ing representative of the employees. In his letter of April 25, Frock responded in part: Due to the pendency of the decertification elec- tion and the existence of objective considerations that the Machinists no longer represent a majority of our employees, we see no point in attempting to negotiate a new contract until the decertification issue is settled. Regarding your request for various and sundry records and documents, we do not understand how these relate to the bargaining process and request you specify in what way this information does relate to the bargaining process. The union attorney renewed their request for informa- tion in his letter of April 28. The Company did not re- spond. After the RM hearing was held and prior to the scheduled election, the Respondent withdrew its RM pe- tition near the end of May. Again through its attorney, in a letter dated May 23, the Union repeated its request for the Respondent to meet and provide the previously requested information. In addition the letter stated: Second: On behalf of the three employees pres- ently on strike, this is to Inform you that the em- ployees hereby make an unconditional offer to return to work. The Company responded through its attorney, Erwin Lerten, in a letter dated June 2. The Respondent agreed to furnish part of the requested information and indicated by reference to paragraph E of the Union's May 23 letter that at that time there were no openings for the positions of "journeyman general mechanic, field serviceman, tramee mechanic, helper, parts employee, apprentice gal age employee, maintenance and custodial employee and assembler." Because Lerten stated there were no openings due to the employment of permanent replace- ments, the Respondent indicated the strikers would "be placed on a preferential hiring list and, in the event that any openings become available for which they are quali- fied, they will by recalled to work in accordance with their seniority." The Company followed this letter by correspondence to the Union from Frock dated June 4, which confirmed a date to resume bargaining and pro- vided some of the information requested by the Union. 4. Final negotiation session The parties were unable to meet on June 4, therefore the session was rescheduled for July 1. The final meeting was very short. Day wanted to know if there was any work for the strikers. Frock explained that there were no openings for the partsmen because they had hired perma- nent replacements, and there was no mechanical work available and none for the foreseeable future. Prior to the strike the Company did not have any plans to eliminate the position of mechanic, although the need for mechan- ics had declined in ,recent years. In February 1979, the Respondent was forced to lay off three of the four jour- neymen mechanics due to lack of work. After the strike began the Respondent made no effort to replace the me- Clinic, because they felt it was an impossible task to find a qualified mechanic who would cross the picket line in the Oakland area. As a result, the Respondent informed their customers that the Company would not be able to perform mechanical work during the strike. Most of the customers maintained their own shops and were able to do their own work. If the mixer was still under warran- ty, the Respondent paid for the work. At the beginning of the strike there were approximately 30 mixers under warranty. As the construction business continued to suffer, fewer mixers were purchased and, by July, there were only 10 mixers under warranty. Since there was no movement in the positions of either side, the session was very short. The Union asserts that it was prevented from further negotiating wage changes because the Company was adamant on the issue of an open shop and the elimi- nation of the union-security clause from the contract. C. Analysis and Conclusion 1. Interrogation of job applicants During the interviews of the 50 applicants, Morris fol- lowed Frock's instructions and asked the individuals if they received the job,, would they cross the picket line, how did they feel toward unions, and were they for or against unions. Prior to Morris' testimony, the General Counsel had been unaware of the nature of the Respond- ent's questions to the job applicants. At the conculusion of Morris' testimony the General Counsel moved to amend the complaint by adding an allegation of unlawful interrogation of job applicants in violation of Section 8(a)(1) of the Act. The Respondent opposed the amendment arguing that the new allegation was totally unrelated to the substance and pattern of the original charge and was thus beyond the 10(b) period. The original charge was filed on July 396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28, 1980, and alleged that Respondent had violated Sec- tion 8(a)(1), (3), and (5) of the Act: 1. By engaging in regressive and bad-faith collec- tive-bargaining and at times refusing to bargain at all. 2. By failing and refusing to discuss or negotiate concerning the reinstatement of and refusing to re- instate one or more of the striking unfair labor prac- tice strikers. 3. Failing and refusing to provide relevant infor- mation to the exclusive bargaining representative of the employees. 4. By unilaterally, and without notice to the Union (the exclusive bargaining representative) making changes in wages, hours, and working con- ditions and substituting new benefit. Said changes and substitutions were done to discourage union ac- tivity. 5. By failing and refusing to adequately notify the Union and failing to discuss the decision and effects of the decision to eliminate journeyman mechanical work. By the above and other acts, the above-named employer has interfered with, restrained, and co- erced employees in the exercise of the rights guar- anteed in Section 7 of the Act. The complaint was issued on October 16, 1980, and amended on March 18, 1981, generally alleging the con- duct encompassed in the above charge. In addition the complaint contained the following allegation:7 9(b) On or about March 17, 1980, and again on April 25, 1980, Respondent withdrew recognition of the Union and/or refused to bargain with the Union as the exclusive collective bargaining agent of the employees in the unit described above in paragraph 5, at a time during which it did not possess objec- tive consideration's to believe that the Union no longer represented a majority of the employees in the aforementioned unit. The General Counsel's motion to amend was granted and the Respondent was given an opportunity to contin- ue the case in order to have adequate time to investigate and prepare its defense. The Respondent did not request a continuance. The facts surrounding the amended alle- gations were fully litigated. In R. J. Causey Construction Co., 241 NLRB 1096 (1979), the original charge and complaint specifically al- leged that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Castiglione, an employee, for engaging in union and/or other activities protected under the Act. The administrative law judge allowed the General Counsel, at the last minute of the trial, to amend by alleging that the Respondent violated Section 8(a)(5) by refusing to make benefit payments for Castiglione during his employment as an apprentice carpenter. The Board found that the facts surrounding the amendment 7 Par. 9(b) was in the ongmal complaint The italicized portions were added in the amendment filed on March 18, 1981 were not related to the facts surrounding the allegations in the original charge. Thus, the original charge did not apprise RespondentS of the factual matter on which the amendment to the complaint was predicated. Therefore the judge erred in granting the motion to amend. In reaching this conclusion, the Board stated that the "rules regarding the requisite relationship as to both timeliness and subject matter of a proposed amendment to a com- plaint to the original charge have been succinctly articu- lated by the United States Court of Appeals for the Second Circuit." (1) A complaint, as distinguished from a charge, need not be filed and serviced within the six months. (2) If a charge was filed and served within six months after the violations alleged in the charge, the complaint (or amended complaint), although filed after the six months, may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge, and (b) [they] occurred within six months before the filing of the charge. 2 2 NLRB V. anion Coil Company, Inc., 201 F.2d 484, 491 (1952), cited with approval in Laborers International Union of North Amer- ica, Local No 282, AFL-CIO (Millstone Construction Company), 236 NLRB 621 (1978). In the instant case, the alleged unlawful interrogations occurred in early March, which was within the 6-month period before the filing of the charge. The original charge and complaint specifically alleged that the Re- spondent violated Section 8(a)(1), (3), and (5) of the Act. The amendment, which was filed during the hearing, al- leges an independent 8(a)(1) violation by unlawfully in- terrogating job applicants about their union sympathies. The original charge in this proceeding alleges, inter alia, that by "the above and other acts," Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. The Board has held that the printed catchall language in the charge is adequate and sufficient to support the par- ticularized allegations of interference, restraint, and coer- cion contained in the complaint. Niagara Falls Memorial Medical Center, 236 NLRB 342 (1978); Benner Glass Co., 209 NLRB 686, 687 (1974); and Texas Industries v. NLRB, 336 F.2d 128 (5th Cir. 1964). In addition, I find that the facts alleged in this amendment are closely relat- ed to the facts alleged in paragraph 1 of the charge and paragraph 9(b) of the complaint. Paragraph 1 of the charge alleges that at times the Respondent refused to bargain at all, and paragraph 9(b) asserts that the Re- spondent "did not possess objective considerations to be- lieve that the Union no longer represented a majority of the employees in the aforementioned unit." The Re- spondent refused to bargain after it filed an RM petition and admitted it based its objective considerations on the information it obtained from the job interviews of David Jenkins, Kelly Thacker, and Andrew Burnett. These same interviews form the basis for the General Counsel's amendment alleging unlawful interrogation of job appli- cations. Accordingly, I find this amendment was not CHALLENGE—COOK BROS. 397 barred by the 6-month limitation period as set out in Sec- tion 10(b) of the Act. Morris freely admitted that he followed Frock's in- structions and asked each job applicant the same basic questions. The Respondent argues that the thrust of Morris' questions are not to determine the applicants' union membership, but rather their willingness to report to work when it required the crossing of a picket line. In support of this position, the Respondent cites W A. Sheaffer Pen Co., 199 NLRB 242 (1972), enfd. 486 F.2d 180 (8th Cir. 1973), for the proposition that: The Board has never privileged the interrogation of applicants concerning their willingness to cross a picket line except in situations where a strike was in progress.5 5 Roadhome Construction Corp , 170 NLRB 668, 674 In both of these cases the individuals questioned were employees and not job applicants. In the Sheaffer case the employees were polled 6 weeks before the expiration of their contract. The Board found under those circum- stances the employer had violated Section 8(a)(1) of the Act. The Roadhome case also differs from the instant case, since the interrogation was extremely limited. On the first morning of the strike,, the employer and its su- perintendent knew that some of the men had not signed authorization cards The superintendent approached a group of strikers and asked if any of the employees who had not signed the cards were there. It was the superin- tendent's responsibility to start the job and the purpose of his question was simply to determine who was avail- able for work. Morris' interrogation of job applicants went far beyond determining the willingness of job appli- cants to cross a picket line to work. If that were the sole intended purpose of his question, then there was no reason for him to make such an inquiry. Approximately 50 applicants responded to the Respondent's newspaper ad, which indicated there was a labor dispute in progress and, on their arrival, the applicants observed that it was necessary for them to cross the picket line to submit an application. Obviously, the purpose of Morris' inquiry went beyond a mere determination of a fact that was al- ready obvious by the presence of the 50 job applicants. When interrogation takes place in the context of job interviews, the Board has found that such interrogations are "inherently coercive." Bighorn Beverage, 236 NLRB 736, 751 (1978), enfg. 614 F.2d 1238, 1241 (9th Cir. 1980). The Ninth Circuit found that Maykuth, the presi- dent of Bighorn: used the employment application forms in the inter- views and questioned each worker that he subse- quently hired about his union sympathies. In addi- tion, there was his statement that refusal to cross a picket line would not be an excuse for failing to de- liver to customers. Therefore, "Wile question in this case carried with it the inherent implication that the answer given would have affected the applicants' chances of employment." W. A. Sheaffer Pen Co. v. NLRB, [486] Fld 180, 182 (8th Cir. 1973). Despite the inherently coercive impact of the questions con- cerning union membership, Maykuth took no steps to alleviate it. We, therefore, find that the use of the employment forms and the questioning concerning union membership support the Board's findings that respondent violated Section 8, supra. In Clear Pine Mouldings R NLRB, 632 F.2d 721 (1980), the Ninth Circuit granted enforcement of the Board's Order and found that although the manager's question may have been vague, they supported the conclusion that the questions carried the clear implication that the answer given by the job applicant affected his chances of employment. The absence of direct threats by the com- pany does not alter the conclusion that when a personnel manager asks questions concerning the applicant's union sympathies, an inferred coercion exists.5 In the instant case, Morris' questions were not vague. The Respondent wanted to know what the applicants' union sympathies were. The record is void of any evi- dence that would provide any reasonable explanation about how the questions had a legitimate purpose. Obvi- ously, a job interviewee will consider seriously the ques- tions that are asked of him. As previously noted, inquir- ies concerning union sympathies are inherently coercive. Bighorn Beverage, supra. Morris made no attempt to di- ,. . mmish the apprehension his remarks may have made with the 50 applicants. Of the three permanent strike replacements, only Andrew Burnett appeared at the hearing. He testified that he did not recall Morris asking him questions con- cerning his union sympathies. With considerable convic- tion, Burnett testified that he was very definitely antiun- ion and he would stand on his "soapbox if someone got him started." I credit Burnett's assertions and find that, in reference to Burnett, he was not coerced by Morris' question. This finding, however, is limited to Burnett. The fact that he was not coerced does not take away from the coercive nature of the interrogations of the re- maining job applicants. Having considered all the sur- rounding circumstances, I find the interrogation by Morris of the remaining job applicants, including David Jenkins and Kelly Thacker, during their job interviews was coercive and therefore a violation of Section 8(a)(1) of the Act. 2. Alleged bad-faith bargaining The complaint alleges that the Respondent violated Section 8(a)(5) of the Act by refusing to provide relevant information requested by the Union, making regressive proposals by withdrawing previously agreed-to clauses for union security and retroactive wage benefits, refusing to meet or bargain with the Union, withdrawing recogni- tion of the Union as the exclusive collective-bargaining agent for the unit employees, and eliminating a unit posi- tion of journeyman mechanic without prior notification to or bargaining with the Union. It is the position of the General Counsel and Charging Party that the Respond- 8 The Respondent's reliance on Penasquitos Village v. NLRB, 565 F.2d 1074 (9th Cir 1977), is misplaced inasmuch as the interrogation in that case was of employees, not job applicants. 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent, by its conduct and actions, engaged in bad-faith bar- gaining. It is well established that in determining wheth- er a party has bargained in good or bad faith it is neces- sary to examine the totality of all the events and sur- rounding circumstances. NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343 (9th Cir. 1978); J. P. Stevens & Co. v. NLRB, 623 F.2d 322, 326 (4th Cir. 1980), and Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403 (9th Cir. 1977). Viewed separately, the actions of a party may be construed as acceptable hard bargaining. When viewed together, however, those same actions may reflect an un- willingness or failure to bargain in good faith as required by Section 8(d) of the Act: to bargain collectively is the performance of the mutual obligation of the employer and the repre- sentative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of em- ployment . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession. The Supreme Court discussed the effect of Section 8(d) and concluded it was "clear that the Board may not, either directly or indirectly compel concessions or other- wise sit in judgment upon the substantive terms of col= lective bargaining agreements." NLRB v. American Na- tional Insurance Co., 343 U.S. 395, 404 (1952). In H. K Porter Co., 397 U.S. 99, 107 (1970), the Supreme Court further held, "It is implicit in the entire structure of the Act that the Board acts to oversee and referee the proc- ess of collective bargaining, leaving the results of the contest to the bargaining strengths of the parties." Thus, the Board has power under the Act to require employer and employees to negotiate in good faith, it does not have the power to compel either party to agree to any substantive contractual provision of a collective-bargain- ing agreement. a. Regressive bargaining A review of the history of past collective bargaining between the Respondent and the Union reveals that ulti- mately the wage differences were settled on terms com- parable to the area standards found in the Franchise Truck Dealers final settlement. The first two bargaining sessions in 1979 were in keeping with past practice. During the first meeting, the Union presented what was admittedly an inflated demand and at the second session the Company responded with its offer. Although the par- ties were not in agreement as to wages at the end of the second session, both Frock and Spencer testified that the negotiations were moving in the direction of a wage set- tlement comparable to the Franchise Truck Dealers' set- tlement. At the third bargaining session the Company departed from past practice. Frock announced that his Company could not afford to meet area standards. At this meeting and at the fourth meeting Frock explained to both Spen- cer and Day that the Respondent was convinced the building industry was in serious economic trouble. The Federal Reserve had announced a tight money program that would have an adverse effect on the Nation's con- struction. Since the Company manufactured, sold, and serviced cement mixers any decline in the construction industry would have a very direct effect on the profits of the Respondent. In contrast, the Company argued that the Franchise Truck Dealers provided a product that was not limited to the building industry and therefore they could afford to pay a higher wage. On October 19, the Union accepted the Company's pension proposal and dropped all other demands, except for an increase in wages. The Union rejected the Respondent's wage offer and continued to demand the area standard. Neither side was willing to change its wage position at the fourth meeting on November 15. Finally, the Union called for an economic strike and began picketing on January 21, 1980, to protest their wage dispute. There was no evidence adduced to indicate that the Respondent bargained in bad faith prior to February 5, 1980. It is true the Company departed, from past practice by refusing to ultimately accept the area wage standards. However, the Company presented a reasonable explana- tiOn for their position, based on changing economic con- ditions. The Company's forecast, in the fall of 1979, that the construction industry faced severe financial difficul- ties in the approaching years, was extremely accurate. On February 5, the parties met very briefly. The Com- pany announced its position had not changed, except that it was withdrawing its agreement for retroactive pay, it intended to hire permanent replacements for the strikers, it wanted an open shop, and the elimination of the union- security provision. It was undisputed that all prior con- tracts contained a union-security clause, which the Re- spondent agreed to maintain in its letter of October 19, 1979. It is the contention of the General Counsel that "the unprecedented act of demanding an open shop con- tract, as well as a retraction of the retroactive wages," constituted bad-faith bargaining. In support of this posi- tion the General Counsel relied heavily on Queen Mary Restaurants Corp., 219 NLRB 776 (1975), enfd. 560 F.2d 403 (9th Cir. 1977), and Tomco Communications, 220 NLRB 636 (1975), enf. denied 567 F.2d 871 (9th Cir. 1977). In the Tomco case, the Board reiterated the "funda- mental precept of labor relations law that the 'the obliga- tion to bargain collectively does not compel either party to agree to a proposal or require the making of a conces- sion.' However, as stated above, the Board can and does consider the totality of the employer's actions to assess its motivation in determining whether it was really en- gaging in surface bargaining with no genuine intention to reach agreement." Although the Respondent in the Tomco case had a right to insist on a management-rights clause,9 the Board found that its rigid adherence to pro- posals that are predictably unacceptable to the union may indicate a predetermination not to reach an agreement. Tomco arrived at the bargaining table adamant in its in- sistence on the acceptance of its proposed management- rights clause, which virtually required the union to abdi- cate nearly every right it would normally possess and 9 NLRB v. American National Insurance Co., 343 U.S. 395 (1952). CHALLENGE—COOK BROS. 399 need to adequately represent its members. At the very first meeting, Tomco rejected the union-security clause that had been in previous contracts and was contained in article II of the union's proposed contract. Eventually the unit employees participated in a partial "sickout" and Tomco responded with a lockout. Throughout the vari- ous bargaining sessions Tomco conceded little and de- manded a great deal. In the circumstances, the Board concluded that Tomco's representative had not bar- gained in good faith since he knew the company's pro- posals would never be accepted by the union. Thus, by examining the employer's conduct of adamantly pursuing proposals that were impossible for the union to accept, it became evident that Tomco was motivated by a desire to engage in surface bargaining and it did not, in fact, have a genuine intention to reach an agreement. The employ- er's efforts were to simply frustrate meaningful bargain- ing.The employe: in the Queen Mary case exhibited an intent to frustrate meaningful collective bargaining from the very beginning. In fact, while the bargaining was in progress the employer attempted to defeat the union by committing a large number of unfair labor practices. Indeed, the restaurant attempted to cover up these unfair labor practices by offering one important witness $150 to leave town in an effort to prevent him from testifying and urging another witness to testify advantageously for the employer regardless of the facts. When the employ- er's efforts to defeat the union failed, it acted unilaterally regarding the critical subjects of wages and seniority, denied the union information necessary for informed bar- gaining, and, in bad faith, placed the union in an unten- able position regarding union security and the hiring hall. The Respondent urges that the Board's decision in Olin Corp., 248 NLRB 1137 (1980), provides precedent in the instant case due to the factual similarity. After the commencement of the strike, Olin Corporation informed the union and employees that if they did not return to their work by January 19, the company would begin to restaff the plant on January 23. On Monday, January 30, the first day the replacement workers arrived, the com- pany informed the union it was withdrawing the union- security provision from its outstanding offer. The union- security clause had been in prior contracts. The Board rejected the argument that the company had violated Section 8(a)(5) of the Act by withdrawing the union-se- curity provision: In context, the Employer's modification of its proposed agreement by withdrawing the union-se- curity provision before agreement had been reached, and its refusal to bargain about the with- drawal at that time when it was operating with a new work force do not constitute an 8(a)(5) viola- tion. In the same case the Board also found the union had at- tempted to frustrate the bargaining process in violation of Section 8(b)(3). Although there are factual similarities between Olin and the instant case, there are also significant differences. The Olin employer notified the union of its intention to withdraw the union-security clause only after it had hired permanent replacements and learned of their con- cern about having to join the union. In addition, by letter, Olin infomed the union the reasons for taking this action and concluded by expressing a willingness to dis- cuss the union security-clause in the event of "changed circumstances in the future." In contrast, the Respondent in the present case had neither hired nor even inter- viewed replacement workers when it announced its in- tention to withdraw the union-security clause. Under those circumstances Frock had no way of predetermin- ing the union sympathies of future replacement workers. When Frock announced the employer's decision to with- draw the union-security clause, he neither provided an explanation, nor a willingness to discuss the matter. Sub- sequently, the Respondent remained adamant in its oppo- sition to the security clause. The events of February 5 marked an abrupt change in the tactics of the Respondent. Prior to that date the Company had bargained in good faith. In fact, standing alone, the Respondent's actions on February 5 may appear to be nothing more than permissible hard bargain- ing. However, as seen in Tomco, supra, in order to deter- mine whether an employer is engaging in surface bar- gaining with no genuine intention to reach an agreement, it is necessary to consider the totality of the Respond- ent's actions to assess its motivations. When all the facts and circumstances are considered, it is clear that the Re- spondent's withdrawal of the retroactive pay and the union-security clause were only the first in a series of un- lawful actions taken by the Company that revealed their intent to frustrate meaningful collective bargaining. Thus, in the circumstances of this case, the Company's rigid adherence to the withdrawal of the union-security clause, which was predictably unacceptable to the Union, indicated a predetermination not to reach an agreement. Having considered all the circumstances and events that preceded and occurred after the Respond- ent's announced modification of its proposed agreement, find that the withdrawal of the union-security clause and retroactive pay and the subsequent refusal to bargain concerning the withdrawal of the union-security clause constituted a violation of Section 8(a)(5) of the Act. In reaching this finding, I have considered the totality of the Respondent's actions as outlined in the remaining portions of this decision. b. Respondent's refusal to meet or bargain with the Union The Respondent admits it refused to bargain with the Union on March 17 and April 25, 1980. On March 17, it filed an RM decertification petition with the NLRB. The petition was later withdrawn on or about May 22. It is the position of the Respondent that if it had bargained with the Union, while the RM petition was pending, it would have been in violation of Section 8(a)(2). In the circumstances, I disagree. In order for the Respondent to lawfully withdraw rec- ognition from the incumbent Union it must meet certain standards as set out by the Board's decision in Celanese Corp. of America, 95 NLRB 664 (1951). In a more recent 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD case, Guerdon Industries, 218 NLRB 658, 670 (1975), the Board held: [A] certified union, upon expiration of the first year following its certification, enjoys a rebuttable pre- sumption that its majority representative status con- tinues. . . . the presumption [also] continues to apply after the expiration of a collective-bargaining agreement. . . . The presumption may be rebutted, [however] by evidence establishing that the Union no longer [enjoys majority representative status]. Even without such showing of loss of majority, an employer may refuse to bargain if he relies on a rea- sonably based doubt as to the continued majority status of the Union. [As to a reasonably based doubt, two prerequisites for sustaining that defense are that the asserted doubt must be based on objec- tive considerations and such doubt must be raised in a context free of unfair labor practices.] The burden of proving the existence of reasonable doubt, based on objective considerations that are free of the taint of unfair labor practice, rests on the employer. Nu- Southern Dyeing & Finishing, 179 NLRB 573 (1969). Frock testified that the sole objective consideration relied on by the Respondent to give rise to a reasonable doubt about the Union's majority were the two state- ments signed by Morris and Holloway on March 10, 1980. The wording of these two statements were suggest- ed by the Company's labor attorney and Frock. In re- calling their conversations with the three permanent re- placements, neither Morris nor Holloway could remem- ber if the men said they did not wish to be represented by the Machinists or were simply disenchanted or op- posed to unions in general. Regardless of the exact re- sponse of the three replacements and the remaining 47 individuals who were interviewed, the fact remains the applicants gave their answers in a coercive atmosphere. I have previously found that Morris' inquiries of these job applicants about their union sympathies represented un- lawful interrogations in violation of Section 8(a)(1) of the Act. Obviously, the fruits of such an unlawful interroga- tion are tainted, suspect, and unreliable. The applicants' response may have been true or simply the utterances of men who were in need of work. Morris asked all 50 ap- plicants if they were for or against unions. It is difficult to conceive of an individual who would respond to a newspaper ad that warns of a pending labor dispute, cross a picket line, submit to an interview, and then reply to Morris that he was for the union. Obviously, if he wants the job and observes the union dispute, he will provide some negative response, regardless of his actual union sympathies. At the bare minimum, in the context of a job interview, the answers by a job applicant con- cerning union sympathies or support are unreliable and cannot serve as the basis of reasonable doubt about the Union's majority. Nor can the employer presume a lack of union majority when strike replacements and other employees cross a picket line Penne° Inc., 250 NLRB 716 (1980), supplementing 242 NLRB 467 (1979); NLRB v. Mar-Len Cabinets, 659 F.2d 995 (9th Cir. 1981). Absent evidence to the contrary, new employees, includ- ing strike replacements; are presumed to support the union in the same ratio as the employees they replace. The objective considerations in this case were tainted because they rose from an unfair labor practice. It is set- tled that an employer may not use the results of its earli- er unfair labor practices to justify its refusal to bargain with the incumbent union. Thomas Industries, 255 NLRB 646 (1981); Oklahoma Osteopathic Hospital, 238 NLRB 1113 (1978); Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944). Accordingly, I find that the Respondent has presented no credible evidence supporting its asserted belief that the Union no longer represented a majority of its employees at the time it refused to bargain. Respond- ent has not rebutted the presumption of the Union's con- tinued majority status. In view of the foregoing, I con- clude that by refusing to recognize and bargain with the Union concerning a collective-bargaining agreement, Re- spondent violated Section 8(a)(5) of the Act. c. Refusal to provide requested information In a series of letters dated April 22 and 28 and May 23, 1980, the Union requested various information per- taining to the unit employees at the Respondent's Oak- land facility concerning hourly wages, a bonuses, holiday pay, vacation benefits, and pension payments for employ- ees between February 1 and May 22, 1980; documents showing the number of hours worked and total compen- sation received by employees between January 15 and May 22, 1980; a list of current and future job openings for unit positions; and all unit job applications; including the three strike replacements, from January 1 to May 22, 1980. 10 In his letter of April 25, Frock responded to the Union's first request by stating that the Company had objective considerations that questioned the Union's ma- jority status and until the decertification issue was settled it was pointless to attempt tc negotiate a settlement. In addition he requested the Union to specify how the re- quested information related to the bargaining process. In its letter of April 28, the Union repeated its request for the information and explained the information was rele- vant because the Company had an obligation to negotiate regarding reinstatement of the striking employees. The Respondent, through Frock, ignored the request. After the decertification petition was withdrawn, the Union again renewed its request for the information in its letter of May 23. The Respondent's attorney, in a letter dated June 2, refused to provide the job applications of the three strike replacements because he could not under- stand their relevance. The Company also expressed fear for the safety of the three strike replacements, based in part on the assertions that nails had been strewn on the company driveway. 11 He further informed the Union 10 The information requested in the April 22 and May 23 letters was identical, except for the period requested. In general the April 22 letter requested information between August 1 and April 15, 1980, except for the documents providing the number of hours worked and total compen- sation paid, which covered the period between January 1 and April 15, 1980. 11 Other than this June 2 reference to the "nails strewn on the Compa- ny driveway," there was no other evidence or reference to any form of strike violence. CHALLENGE—COOK BROS. 401 that the Company did not have any work available, nor any planned future job openings for the three striking employees, because the work was being performed by the permanent replacements. The Company, however, indicated it would place the strikers on a preferential hiring list and in the event of an opening they would be recalled according to their seniority. On June 4, Frock forwarded to the Union a copy of the most recent se- niority report showing the hiring dates, pay rates, and classifications for the Oakland employees and copies of the weekly payroll timesheets, The Union was never provided any additional information. An employer is required to furnish relevant informa- tion, at the request of the Union, which is "in the em- ployer's possession" and "needed by a labor union for the proper performance of its duties as the employees' bargaining representative." Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979). It is well established that when the information that is requested deals with wages, bene- fits, job classifications, and terms and conditions of em- ployment, there is a presumption of relevancy and there- fore no special showing of relevance or necessity is re- quired." Even in those areas where the requested infor- mation is not covered by a presumption of relevance, a liberal "discovery-type standard" is used to determine relevancy. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). 'With the exception of the request for the job applica- tions of the three strike replacements, all other requested information found in the Union's letters of April 22 and 28 and May 23, 1980, were clearly relevant. The infor- mation should have been provided promptly after the Respondent received the Union's letter of April 22. NLRB v. John S. Swift Co., 277 F.2d 641 (7th Cir. 1960). The fact that the request for information was made while the decertification petition was pending does not free the Respondent of the obligation to promptly furnish the in- formation, in the circumstances of this case. As previous- ly indicated, I have found the Respondent lacked ade- quate objective considerations to support its filing of the RM petition because the considerations were based on its own unfair labor practice violations. An employer may not use the results of its earlier unfair labor practices to justify its refusal to furnish relevant requested informa- tion. Accordingly, in the circumstances of this case, I fmd the Respondent violated Section 8(a)(5) of the Act by failing to promptly furnish the requested information to the Union. d. Elimination of the journeyman mechanic's position It is undisputed that prior to the inception of the Janu- ary 21 strike, the Company had neither expressed, con- sidered, nor formulated any plan for the elimination of Lovett's unit position as a journeyman mechanic. The Respondent defends its actions by stating it "did not seek to eliminate the mechanic's position but rather was forced into the discontinuance of its service department ' NLRB v. F. W. Woolworth Co., 352 U.S. 938 (1956); Woodworkers Locals 6-7 v. NLRB, 263 F.2d 483 (D.C. Cir 1959); Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th air. 1976); Maywood Do-Nut Co., 256 NLRB 507 (1981). - by a combination of two factors: the strike and the gen- eral economic downturn." The General Counsel and the Charging Party argue that regardless of the reasons for its actions, the Respondent had a duty to bargain with the Union over the decision and the effects of the deci- sion to eliminate Lovett's position as journeyman me- chanic. The Respondent further argues that it did not simply eliminate the position of one employee, but the whole service department. Thus, it relies on Stanley Oil Co., 213 NLRB 219 (1974), for the proposition that when an employer decides to completely discontinue a product line, it has no duty to bargain over that decision. The record is not clear about when the decision was made to eliminate the mechanic's position. As late as June 2 and 4, however, the Respondent's correspondence reveals that it informed the Union that Lovett would be placed on a preferential rehire list. This statement was made in response to the Union's unconditional offer to return to work. These letters are not only silent on the elimination of unit work, they provide a strong inference that the position of journeyman mechanic still existed. The Company did not hire a strike replacement for the mechanic's position during the stike. Frock also admitted that he had never informed the Union of the Company's decision, either orally or through correspondence, until the July 1 final collective-bargaining session. It was during that final session that Frock announced, as a fait accompli, that the Company had eliminated the position of journeyman mechanic. The Stanley case is distinguishable on its facts. There the employer completely closed its service department and took itself out of the business of servicing equipment. The credible evidence in the present case would indicate that the action of the Respondent was only temporary. Frock spoke in terms of the foreseeable future and not the permanent elimination of the service department. The Company, under the sales warranty contracts, remained obligated to service the cement mixers for its customers. Although the number of cement mixers that were under such a warranty decreased from 30, at the inception of the strike, to 10 by July 1, the Respondent remained ob- ligated to service those mixers. It met this obligation by paying its customers to perform their own mechanical work. In essence, the unit work was subcontracted to the Company's customers. Those same customers had ex- pressed a preference for the Company to provide the me- chanical service under the warranty. Gary Morris, the service manager, testified it was less costly for the Com- pany to perform the warranty work than to pay the cus- tomers. Thus, at the time Lovett offered to uncondition- allY return to work, there did exist a need for a journey- man mechanic to perform the warranty work that had been subcontracted to the customers. If the Respondent wished to continue to subcontract the warranty work to its customers, it had a satutory obligation to bargain with the Union, as Lovett's exclusive bargaining representa- tive, concerning the decision and the effect of the deci- sion to eliminate the unit work. I find that by failing to notify and bargain with the Union over the elimination of Lovett's job, the Respondent violated Section 8(a)(5) of the Act. 402 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD 3. Elimination of journeyman mechanic's position as a violation of Section 8(a)(3) and (1) It is the contention of the General Counsel that the journeyman mechanic's position was eliminated by the Company in retaliation for the strike activity of Lovett and the other striking employees, in violation of Section 8(a)(3) and (1) of the Act. The Respondent denies the al- legations and argues that the decision to discontinue the mechanic's function was the result of the strike and the continued downward slide of the Company's business. The record does support the Respondent's assertions that its economic success was directly linked to the construc- tion industries. Since the fall of 1979, the building indus- try has continued to deteriorate. To emphasize its plight, Frock reviewed the change in the number of its employ- ees in the various plants around the country. The Re- spondent's plant in the City of Industry, California, expe- rienced a drop in employees from 600 in the bargaining unit in early 1979 to as low as 175. The Ohio plant dropped from 400 bargaining unit employees to the low 200s. The Georgia plant was new and the Respondent anticipated 250 bargaining unit employees; however, the number never rose above 75. In the past, the Oakland site had as many as 10 to 12 mechanics in the service de- partment. As business continued to deteriorate, the number of mechanics dwindled to four by February 1979, when an additional three were laid off for lack of work. Although these statistics provide a general overall view of the Respondent's economic condition, they fail to provide specific information to support the alleged business decision to eliminate the last journeyman me- chanic's position at the Oakland site. In the present case, the threshold question that must be answered is what were the actual "motivating factors," that prompted the Respondent's actions. The Board in a recent decision, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provided a clear explanation about the proper analysis of the Respondent's action, when dual motives exist. In such a case there are two factors to be consid- ered. In the instant case, was there a legitimate business reason for eliminating Lovett's position and, second, was the Employer's reaction also based on the fact that Lovett had actively participated in the strike. The Gen- eral Counsel meets its burden of proof and makes a prima facie case by presenting evidence "sufficient to support the inference" that Lovett's concerted activities were "motivating factors" in the Company's decision. Once this is established, the burden will shift to the Re- spondent to demonstrate that the same action would have taken place even in the absence of Lovett's partici- pation in the strike. It is undisputed that prior to the inception of the strike all collective-bargaining agreements contained a union- security clause, as did the proposed new contract. The Company also freely admitted that prior to the strike it did not have any plans for the elimination of Lovett's position as a journeyman mechanic. In addition, the Re- spondent's conduct was free of any unfair labor practice violations until after the beginning of the January 21 strike. Then on February 5, the Company announced its intentions to eliminate the union-security clause from the proposed contract and establish an open shop. It pro- ceeded to unlawfully interrogate job applicants as to their union sympathies. Three of these individuals, who professed a dislike for unions, were ultimatley hired as permanent strike replacements for the partsmen. Then, based on the tainted objective considerations that the Company had obtained through job interviews, the Re- spondent filed an RM petition and refused to bargain with the Union or supply requested information. Finally, the Company refused to rehire Lovett after his uncondi- tional offer to return to work. Thus, the Company's con- duct abruptly changed after the strike had begun. There- after, the Company proceeded to violate the Act in retal- iation for the strike. Accordingly, I find that the General Counsel has met its burden of proof and has made a prima facie case by presenting sufficient evidence to sup- port the inference that the unit employees' participation in an economic strike was a "motivating factor" in the Respondent's decision to eliminate the unit journeyman mechanic position and not rehire Lovett. As previously noted, the Respondent provided general information about the decline in its business and the number of employees throughout the country. However, very little information was presented by the Company to support its assertions that Lovett was not rehired for business reasons. Gary Morris, the Respondent's service manager, asked Holloway several times whether they were going to hire a replacement for the mechanic. Each time he was told, "At this time we are not doing any- thing about the position." The credible evidence indi- cates that mechanical work was available at the Oakland site, when on May 23 Lovett and the other strikers of- fered to return unconditionally. There were at least 10 cement mixers still under warranty. In addition; Morris testified that customers preferred to have Lovett perform the mechanical work on their vehicles rather than do the work in their own shop. In fact, in the past both warran- ty and nonwarranty customers were willing to defer re- pairs until Lovett was free to work on their mixers. During the strike these customers were turned away. It is reasonable to assume from Morris' testimony that many of these customers would return as soon as Lovett was available. Morris also explained it was cheaper for the Company to have Lovett perform the mechanical work than to pay the customers to repair their own vehi- cles, which were still under warranty. Although the Re- spondent has advanced broad economic reasons to dem- onstrate that its business had declined, it failed to pro- vide specific information to support its position that the journeyman mechanic's position was eliminated for busi- ness reasons. Having considered all the foregoing reasons that were asserted by the Company as legitimate business reasons for their actions involving Lovett, I find that Re- spondent has failed to meet its burden to demonstrate it would have reached the same decision absent the pro- tected conduct. In light of the above, I fmd that the pre- ponderance of credible evidence supports the allegations that the Respondent violated Section 8(a)(3) and (1) of the Act when it eliminated the journeyman mechanic po- sition and refused to rehire Lovett after his offer to return to work unconditionally on May 23, 1980. CHALLENGE—COOK BROS. 403 4. Failure to reinstate the strikers The Union began its economic strike on January 21, 1980, as a protest against the final wage offer of the Company. Such an economic strike may be converted to an unfair labor strike if the Respondent subsequently commits unfair labor violations that have the effect of prolonging the strike. In the present case I have found that the Respondent has in fact committed a series of unfair labor practices commencing on February 5, 1980. At that time, the Company announced that it would have an open shop, withdrew the previously agreed-to retroactive pay, and eliminated the union-security clause from the proposed contract. Subsequently, the Respond- ent continued to violate the Act by refusing to bargain with the Union and refusing to furnish the Union with requested information, eliminating the journeyman me- chanic's position from the unit without bargaining with the Union, and filing an RM petition based on tainted ob- jective considerations. The strikers were kept informed of these violations. These unfair labor practices did have the effect of prolonging the strike. Therefore, the eco- nomic strike was converted to an unfair labor strike as of February 5, 1980. As unfair labor practice strikers, Lovett, Risso, and Ef- finger were entitled to immediate reinstatement to their former positions when on May 23 their Union offered to return to work unconditionally, even iNheir former jobs were filled with permanent replacements. Of course, the Respondent had hired permanent replacements for the partsmen, but not for the journeyman mechanic. The Re- spondent's failure to reinstate the unfair labor strikers as of May 23, 1980, constituted a violation of Section 8(aX3)and (1) of the Act. Assuming, arguendo, that the economic strike was not in fact converted to an unfair labor practice strike prior to March 10, 1980, when the last permanent replacement was hired, then the strikers would only be entitled to preferential hiring as of May 23, the date they offered unconditionally to return to work. Although the Re- spondent in its correspondence of June 2 and 4 indicated that the strikers would be placed on such a preferential hiring list, they were not reinstated when two of the re- placement partsmen quit in February 1981. Holloway, the Respondent's branch manager, testified that the two replacements had left voluntarily and were not laid off due to lack of work. In fact, he stated that the two re- placements would still be working if they had not quit. Under these circumstances, Risso and Effinger were enti- tled to reinstatement as of February 1981. Because re- placements were not hired for the position of journey- man mechanic, Lovett was entitled to reinstatement as of May 23, 1980. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent, as set forth above, occurring in connection with its operations as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Cook Brothers Enterprises, Inc., d/b/a Challenge— Cook Brothers is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Machinists Automotive Trades, District Lodge No. 190 of Northern California, affiliated with International Association of Machinists and Aerospace Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act is All journeymen, general mechanics, field service employees, trainee mechanics, helpers, parts em- ployees, apprentices, garage employees, assemblers, maintenance and custodial employees employed by Respondent at its place of business located at 7101 San Leandro Street, Oakland, California; excluding professional employees, truck sales, office clerical employees, guards, and supervisors as defmed in the Act. 4. At all times material the Union has been and is the exclusive representative of all the employees in the above-described unit for the purpose of collective bar- gaining within the meaning of Sections 9(a) and 8(a)(5) of the Act. 5. By interrogating applicants for employment in Feb- ruary and March 1980 concerning their union sympa- thies, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 6. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by the following conduct: (a) Since February 5, 1980, and continuing thereafter to date, the Respondent has failed and refused to bargain collectively in good faith with the Union by its overall course of conduct in the contract negotiations. (b) Since on or about March 17, 1980, by refusing to recognize and bargain with the Union concerning a col- lective-bargaining agreement. (c) Since on or about April 22, 1980, by failing and re- fusing to provide the Union, in a timely fashion, certain necessary and relevant information it had requested. (d) By unilaterally, without prior notice to or consulta- tion with the Union, eliminating the unit position of jour- neyman mechanic and by failing and refusing to bargain about the effect of the elimination. 7. The strike, which commenced on January 21, 1980, was converted to an unfair labor practice strike on Feb- ruary 5, 1980—the date the Respondent commenced committing a series of unfair labor practices, that had the effect of prolonging the strike. 8. The Respondent has violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate Clarence Lovett, on May 23, 1980, because of his union activities and further by the elimination of the unit position of journeyman mechanic because of Lovett's union activi- ties. 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9. The Respondent has violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate Clarence Lovett, Larry Risso, and Gordon Effinger, the unfair labor practice strikers who unconditionally offered to return to work on May 23, 1980. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. DIE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certainlf- firmative action designed to effectuate the policies of the Act. Having found that Respondent had engaged in a series of unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, which conduct had the effect of pro- longing the January 21, 1980 economic strike, thus con- verting it to an unfair labor practice strike as of Febru- ary 5, 1980, it will be recommended that the Respondent offer to all its employees who engaged in the strike rein- statement to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to thier seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace the striking employees, and that Respondent make them whole for any loss of pay they may suffer by reason of Respondent's refusal to reinstate them, on request, by payment to each of them a sum of money equal to that which would normally have been earned as wages during the period beginning 5 days after the date on which unconditional offers to return to work were made on behalf of the employees, and terminating on the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing Co., 138 NLRB 716 (1962). Such employees for whom no em- ployment is immediately available will be placed on a preferential hiring list for employment as positions become available and before other persons are hired for such work. Priority for placement on such list is to be dertermined by seniority or some other nondiscrimina- tory test. See Cutten Supermarket, 220 NLRB 507 (1975). In addition, having found that the Respondent unilat- erally changed the working conditions of its bargaining unit by eliminating the position of journeyman mechanic and paying its customers to perform the mechanical work previously assigned to the unit, without adequate and complete notice and bargaining with the Union, I shall order Respondent to restore the status quo ante by opening the service department, by restoring the lost me- chanical work to the bargaining unit, and by thereafter bargaining, following complete and adequate notice to good faith concerning any proposed changes affecting the bargaining unit. Because of the character and scope of the unfair labor practices found, I find a broad cease-and-desist order is necessary. See Hickmott Foods, 242 NLRB 1357 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed13 ORDER The Respondent, Cook Brothers Enterprises, Inc. d/b/a Challenge—Cook Brothers, Oakland, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating applicants for employment with the Respondent concerning their union sympathies. (b) Refusing to recognize and bargain collectively in good faith with the Machinists Automotive Trades, Dis- trict Lodge No. 190 of Northern California, affiliated with International Association of Machinists and Aero- space Workers, AFL-CIO as the exclusive bargaining agent in the following appropriate unit: All journeymen, general mechanics, field service employees, trainee mechanics, helpers, parts em- ployees, apprentices, garage employee, assemblers, maintenance and custodial employees employed by Respondent at its place of business located at 7101 San Leandro Street, Oakland, California; excluding professional employees, truck sales, office clerical employees, guards, and supervisors as defined in the Act. (c) Refusing, failing, or delaying to supply the Union with necessary and relevant bargaining information. (d) Unilaterally making or effecting any changes in the working conditions of the bargaining unit by eliminating a unit position without first giving notice to the Union, the collective-bargaining representatives, and affording such representatives an opportunity to bargain collective- ly regarding such change. (e) Eliminating bargaining unit work or paying cus- tomers to perform the bargaining unit work because of the union activities of its employees. (f) Failing and refusing to reinstate an employee, or otherwise discriminating against an employee, because of the union activities of its employees. (g) Discouraging membership in the above-named Union, or in any other labor organization, by refusing re- instatement to unfair labor practice strikers upon their unconditional request. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purpose and policies of the Act. (a) On request, bargain collectively in good faith with the Machinists Automotive Trades, District Lodge No. 190 of Northern California, affiliated with International Association of Machinists and Aerospace Workers, AFL-CIO as the exclusive bargaining representative of 13 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses CHALLENGE—COOK BROS. 405 the employees in the appropriate unit described above, concerning rates of pay, wages, hours, or other terms and conditions of employment and provide relevant and essential information when requested by the Union and, if an agreement is reached, embody it in a signed con- tract. (b) Offer Clarence Lovett, Larry Risso, and Gordon Effinger immediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, dis- charging, if necessary, any replacements hired after Feb- ruary 5, 1980; and make such employees whole for any loss of earnings resulting from its failure to reinstate them within 5 days of their unconditional request in the manner set forth in the remedy section of this decision. Such employees for whom no employment is available will be placed on a preferential hiring list based on se- niority or some other nondiscriminatory test for employ- ment as jobs become available. (c) Open its service department at the Oakland site, re- storing the lost mechanical work to the bargaining unit, and thereafter bargain in good faith, following complete and adequate notice concerning any proposed changes affecting the bargaining unit employees' wages, hours, or working conditions. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place in Oakland, California, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 14 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,"