Lustrelon, Inc.

378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lustrelon, Inc. and Solidarity of Labor Organiza- tions International Union . Cases 22-CA-14639 and 22-CA-14688 June 27, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On August 4, 1987, Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and a supporting and answering brief. 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 and to adopt the recommended Order as modified.2 We agree with the judge's conclusions that the Respondent violated Section 8(a)(5) and (1) by fail- ing to supply the Union with financial information the Union had requested and by failing to bargain generally in good faith with the Union. In so doing, we agree with the judge's finding that the Respondent claimed an inability, rather than an un- willingness, to meet the Union's economic demands and thereby became obligated to support this claim by providing the Union with the supporting finan- cial data the Union had requested. In this regard, we note that the Union presented its economic pro- posals to the Respondent at the parties' first bar- gaining session on March 3, 1986.3 Thereafter, the Respondent's negotiator, Cole, responded to that proposal at the parties' third bargaining session on March 27 by reading aloud a prepared statement of the Respondent's position. As more fully set forth in the judge's decision, the statement indicated, inter alia, that the Respondent was engaged in "a i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge inadvertently omitted reference to the unlawful discharge of Diego Fernandez and the unlawful suspension of Rolando Fernandez from the expunction provision of his recommended Order We shall modify the provision accordingly The General Counsel has requested a visitatonal provision authorizing the Board, for compliance purposes , to obtain discovery from the Re- spondent under the Federal Rules of Civil Procedure subject to the su- pervision of the U S court of appeals enforcing the Order . In the circum- stances of this case, we find it unnecessary to include such a clause See Cherokee Marine Terminal, 287 NLRB 1080 (1988) a Hereafter, all dates refer to 1986 unless noted otherwise highly competitive industry and large profits per piece are practically non-existent." The statement characterized the Union' s demands as the sort that "would make any company in this industry unprof- itable," and suggested that the Union "withdraw all of your demands from the table and come back with a new set of demands which take into account a wage freeze." Cole, in reading the statement, fur- ther indicated that the next bargaining session scheduled for March 31 was canceled as nothing could be accomplished "until after you have re- moved these outrageous demands . . . and begun to negotiate in a more reasonable fashion." After reading this statement, Cole presented the Re- spondent's economic proposal, which called for, inter alia, a 3-year wage freeze, the discontinuance of the 3 days per year personal leave, and the freezing of the Respondent's contributions to medi- cal coverage at the then-current level. The Union's negotiator, Perez, responded that he would be able to go along with the freeze proposal provided that the Respondent produced its books and records justifying this type of proposal. Cole denied the re- quest. Thereafter, there was a 3-month hiatus in bar- gaining. Bargaining resumed, and at the fifth bar- gaining session on July 23, the Respondent present- ed new economic proposals. The new proposals in- cluded, inter alia, a wage increase of 1 percent per year for employees with 1 year seniority. Perez, in response, told Cole "you got to be kidding me" and Cole said "no . . . this is a legitimate offer, that this was more than the company could afford." Perez again requested the Respondent's books and records and Cole again denied the re- quest. Based on the above, we find that the Respondent claimed an inability to meet the Union's economic demands and was therefore obligated to supply the Union with the requested financial data to support that claim. In so doing, we note that an inability to pay need not be expressed with any particular "magic words" so long as the words and conduct are specific enough to convey such a meaning. At- lanta Hilton & Tower, 271 NLRB 1600, 1602 (1984); Monarch Machine Tool Co., 227 NLRB 1265 (1977). See also Nielsen Lithographing Co., 279 NLRB 877 (1986). We find that the Respondent's conduct and statements, noted above, are tantamount to a claimed inability to pay. We particularly note that the representations in the Respondent's prepared statement must be read in the context of Cole's later characterization of the Respondent's econom- ic offer, which was less costly than that proposed by the Union, as being "more than the company could afford." Accordingly, we agree with the 289 NLRB No. 52 LUSTRELON, INC. judge that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with the fi- nancial data it requested. As noted, we further agree with the judge's find- ing that the Respondent violated Section 8(a)(5) and (1) by failing to bargain generally in good faith with the Union. In this regard, applying the criteria set out in Atlanta Hilton & Tower, supra, we con- clude that the totality of the Respondent's conduct throughout the course of its bargaining evidences an intent to frustrate the bargaining process rather than a sincere purpose to reach agreement. See also Houston Country Electric Cooperative, 285 NLRB 1213 (1987). Thus, we note particularly the dis- criminatory warnings issued to all employee-mem- bers of the negotiating committee and the discrimi- natory treatment of union activists Diego and Ro- lando Fernandez. We further note that at the bar- gaining session of March 27, the Respondent's ne- gotiator, Cole, canceled the next scheduled bar- gaining session and conditioned further bargaining on the Union's withdrawal of its demands. Finally, as set forth above, the Respondent refused to pro- vide relevant financial data despite a claimed inabil- ity to meet the Union's demands. We conclude that by the above conduct the Respondent evidenced an intent to frustrate the bargaining process and failed to meet its obligation to bargain in good faith with the Union.4 The General Counsel has excepted to the judge's failure to include in his recommended Order a pro- vision extending the Union's certification year for a 1-year period. We find merit in this exception. It is well established that when a party refuses to bar- gain during the certification year, the Board will extend the certification year to prevent that party from gaining an advantage from its failure to fulfill its bargaining obligation, and the extension normal- ly given is for the period that will provide the ag- grieved party with a full year of actual bargaining. See generally Colfor, Inc., 282 NLRB 1173 (1987), enfd. 838 F.2d 164 (6th Cir. 1987); Golmac Plastics, 234 NLRB 1309 fn. 4 (1978), remanded 592 F.2d 94 (2d Cir. 1979), enfd. per curiam 600 F.2d 3 (2d Cir. 1979). In the present case the record shows that the Respondent was engaged in overall bad- faith bargaining essentially from the outset of the certification year. We therefore find it appropriate to extend the certification year for a 1-year period running from the date that the Respondent begins to bargain in good faith. We shall modify the judge's recommended Order accordingly. 4 In these circumstances , we find it unnecessary to pass on the judge's finding that the Respondent's proposals were of a regressive nature or to rely on his citation to Retchhold Chemicals, 277 NLRB 639 (1985). But see Retchhold Chemicals, 288 NLRB 69 (1988) 379 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Lustrelon, Inc., Edgewater, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(c). "(c) On request, bargain in good faith with the Union as the exclusive bargaining representative of the employees in the following appropriate unit on terms and conditions of employment and, if an un- derstanding is reached, embody it in a signed agreement. The Union's certification year shall extend 1 year from the date that such good-faith bargaining begins. The appropriate unit is: All production and maintenance employees, in- cluding shipping and receiving employees, but excluding all office employees, clerical em- ployees, administrative employees, executives, guards, maintenance men, professional employ- ees, supervisors as defined in the Act and all other employees of Respondent." 2. Substitute the following for paragraph 2(d). "(d) On request, provide the Union with the fi- nancial data it requested to enable it to verify the Respondent's assertion that it was financially unable to meet the Union's bargaining demands." 3. Substitute the following for paragraph 2(e). "(e) Remove from its files any reference to warnings given employees on SOLO's bargaining committee and to the separate warnings given Diego and Rolando Fernandez and all references to the unlawful discharge of Diego Fernandez and to the unlawful suspension of Rolando Fernandez, and notify all these employees in writing that this has been done and that evidence of the unlawful acts will not be used against them in any way." 4. Substitute the attached notice for that of the administrative law judge. CHAIRMAN STEPHENS, dissenting in part. I would find all the violations found by my col- leagues with the exception of the refusal-to- produce-information violation and the overall sur- face bargaining violation. I recognize this to be a very close case, and I agree that there is no one set of "magic words" through which a claim of inabil- ity to pay might be expressed; but I cannot con- clude that, in context, the particular expressions on which my colleagues rely amount to such a claim. Without that violation, I would not find that the Respondent's conduct amounted to overall surface bargaining, i.e., an intent not to reach an agree- ment. 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT issue warnings to any of our em- ployees in order to discourage them from support- ing Solidarity of Labor Organizations International Union (SOLO). WE WILL NOT discharge or suspend any employ- ee to discourage support for SOLO. WE WILL NOT discharge any employee to dis- courage the filing of any unfair labor practice charges with the National Labor Relations Board. WE WILL NOT refuse to bargain collectively with SOLO and WE WILL NOT refuse to provide it with needed financial data it requested. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Diego Fernandez his job back and make him whole, with interest, for all losses of earnings and of other benefits he suffered as a result of our having unlawfully discharged him. WE WILL make whole Rolando Fernandez, with interest, for all losses of earnings and of other bene- fits he suffered as a result of our having unlawfully suspended him from our employ for 1 week. WE WILL, on request, bargain in good faith with SOLO, as the exclusive bargaining representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody it in a signed agreement. The Union's certification year shall extend 1 year from the date that such good-faith bargaining begins. The appropriate unit is: All production and maintenance employees, in- cluding shipping and receiving employees, but excluding all office employees, clerical em- ployees, administrative employees, executives, guards, maintenance men, professional employ- ees, supervisors as defined in the Act and all other employees of Respondent. WE WILL, on request, provide SOLO the finan- cial data it requested to enable it to verify our as- sertion that we were financially unable to meet SOLO's bargaining demands. WE WILL remove from our files all references to all unlawful warnings issued to members of SOLO's negotiating committee, to Diego Fernan- dez and to Rolando Fernandez, and all references to the unlawful discharge of Diego Fernandez and the unlawful suspension of Rolando Fernandez, and WE WILL notify them that this has been done and that evidence of the unlawful acts will not be held against them in any way. LUSTRELON, INC. C. John Cicero, Esq. and Debra J. Cosgrove, Esq., for the General Counsel. Larry M. Cole, Esq. (Cole & Cole), of Jersey City, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The complaint in these cases , which were consolidated for hearing, alleges that Lustrelon, Inc. (Respondent) has violated Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act (the Act). Respondent's answer denies these and also the underlying factual allegations. The specific issues raised in the pleadings are whether Respondent (1) issued warnings to employees and dis- charged two of them because of their union activities, (2) discharged one of those employees also because he said he would file an unfair labor practice charge , and (3) re- fused to bargain collectively with Solidarity of Labor Organizations International Union (SOLO). The hearing was held in Newark , New Jersey, on 2 and 3 March 1987. On the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS The pleadings establish, and I find, that Respondent manufactures lamps, and that in its operations annually it meets the Board's nonretail jurisdictional standard. I also find, based on the fact that SOLO had been certified in Case 22-RC-9536 as the exclusive collective- bargaining representative for Respondent's production and mainte- nance employees, that SOLO is a labor organization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background About 350 production and maintenance employees are employed by Respondent at its plant in Edgewater, New Jersey. Until January 1986, they had been represented for many years by a labor organization, referred to in the record in this case as Local 298. One of the General Counsel's witnesses, alleged discriminatee Rolando Fer- nandez, testified that Respondent's plant manager had, about 1984, spoken to him about his becoming a Local LUSTRELON, INC. 298 delegate and that Fernandez then became the dele- gate. The last contract negotiated by Respondent and Local 298 became effective in 1983, for a 3-year term. About the same time, new owners took over Respondent's busi- ness. In late 1985, SOLO petitioned for an election in Case 22-RC-9536, seeking to replace Local 298 as bar- gaining agent . Diego Fernandez, one of the alleged dis- criminatees in this case, testified without contradiction that he was one of the original and most active support- ers of SOLO and that he had been told, during the course of SOLO's organizational effort by two of Re- spondent's supervisors, Joe Violante and Pasquale Rose, that he and the other SOLO supporters were wasting their time as Respondent has always done pretty much what it wanted to do. In its answer, Respondent admit- ted that Joe Violante and Pasquale Rose are supervisors and its agents . The statements attributed to them by Diego Fernandez had been made more than 6 months before the first unfair labor practice charge in this case was filed and are not alleged as independent violations of the Act. An election was held on 10 January 1986 pursuant to an agreement of the parties approved by the Regional Director of Region 22. SOLO won and, as noted above, was certified on 22 January 1986 as exclusive representa- tive of Respondent's production and maintenance em- ployees. All dates hereafter are for 1986 unless stated dif- ferently. B. Warnings Given to Employees on SOLO's Negotiating Committee After SOLO's certification as representative, its presi- dent, Edmundo Perez, and Respondent's attorney, Larry Cole, agreed to hold the first negotiation session on 3 March. Cole also agreed to Perez' request that Respond- ent release five employees from work to assist him in the negotiations. Perez agreed that when they were finished on 3 March these employees would return to work. They were not to be paid by Respondent while serving on SOLO's committee. The first session was held on 3 March at a Holiday Inn near Respondent's plant. Cole and Respondent's vice president, Walter Weil, were present for Respondent; Perez, assisted by the employee committee, negotiated for SOLO. The negotiations were in English. Perez translated them into Spanish for the benefit of the em- ployees of SOLO's negotiating committee. As discussed further below, SOLO presented its economic and other demands. One of the alleged discriminatees, Diego Fer- nandez, served on the negotiating committee. He brought up, through Perez, safety issues for discussion at the session. Respondent agreed to set up with SOLO a safety committee and that provision therefor would be included in a collective-bargaining agreement, "subject to language." The meeting ended about noon. The mem- bers of SOLO's committee did not return to work then, but stayed with Perez to discuss the negotiations and to prepare for the next session. Perez testified without contradiction that later on 3 March, Cole telephoned him to state that he thought the employees would be returning to work that day. Perez 381 informed Cole that he was reviewing proposals with the employees to see how flexible SOLO would be in subse- quent sessions. Negotiations resumed on 13 March. The meeting be- tween Respondent's representatives, Weil and Cole, with SOLO's president, Perez, and the employee committee ended that day before noontime. Perez then told Weil and Cole that the employees on SOLO's negotiating committee would remain with him to review the progress of the negotiations. The parties agreed on 13 March to meet again on 27 and 31 March. The employ- ees on the committee stayed with Perez on the afternoon of 13 March and did not return to work. The parties met again on 27 March. As discussed in further detail below in another section, Respondent had on 27 March proposed a 3-year wage freeze, informed SOLO that there was no reason to meet on 31 March as earlier scheduled, and that it was canceling that session. Respondent informed SOLO that it expected SOLO will take into account Respondent's demand for a wage freeze. Perez asked for financial data, as discussed in fur- ther detail below, and his request was denied. The meet- ing ended about noontime. Again, the employees on SOLO's committee remained with Perez and did not return to work. No further sessions were scheduled or held until 27 June. SOLO and Respondent exchanged correspondence respecting SOLO's request for financial data. On 16 May, alleged discriminatee Diego Fernandez was given a written warning by his immediate supervisor and was asked to sign it. The warning was for excessive absenteeism . He refused to sign the warning as, in his view, the dates on which he was absent from work were dates on which he had been excused from work, either because he was participating in negotiations as a member of SOLO's committee or because he was receiving medi- cal treatment. Fernandez wrote Respondent that same day to protest the warning, asserting in his letter that the warning was nothing more than harassment because of his activities on behalf of SOLO. He noted in that letter that 4 of the days cited in the warning were spent on contract negotiations. There is no evidence that he re- ceived a response to his letter. The General Counsel called Vice President Walter Weil as a witness. He testified that Diego Fernandez and the other employees on SOLO's negotiating committee were issued warnings for absenteeism for the days they attended bargaining sessions and that he authorized the issuance of those warnings because he had understood that those employees were to return to work at the end of each meeting. On 20 October, Respondent's attorney, Cole, wrote SOLO's president a letter, reading in relevant part as fol- lows: Some time ago you filed an unfair labor charge with the National Labor Relations Board which al- leged in part that written warnings for attendance had been given to members of your Committee. These warnings included days that the Committee was negotiating. You may recall that the individuals concerned did not return to work in the afternoons 382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the negotiating sessions despite the fact that the sessions had concluded in the morning . Since the appropriateness of the warning was not clear, the warnings were removed from the files of the Com- mittee members unilaterally by the Company. Ap- parently you were never notified of this. Please be advised that warnings have been removed and no action has been taken based upon absences on the days that the Committee was negotiating and that the Committee members were present at the negotiations. None of the employees who served on SOLO's com- mittee and who received warnings, as Weil testified, were ever notified by Respondent that those warnings had been removed from their personnel files or that the warnings were rescinded. The evidence presented by the General Counsel estab- lishes prima facie that Diego Fernandez and other em- ployees on SOLO's negotiating committee were issued written warnings to discourage their support for SOLO. The warnings were not issued until after the negotiations between SOLO and Respondent had become badly strained. They were issued without prior notice to the employees or to SOLO's president. They were issued at Vice President Weil's direction, notwithstanding that he was one of the two principal negotiators for Respondent and was aware that the employees on the committee were with Perez and that Respondent had not on any of those days indicated to Perez that the employees on SOLO's committee were subject to discipline. The infer- ence to be drawn from all the evidence before me is that Weil was sending SOLO a clear message by these warn- ings that its insistence on financial data and its overall bargaining position were not to Respondent 's liking. Re- spondent thus had issued these warnings because these employees supported SOLO. Respondent suggests that the warnings were issued because of a misunderstanding and notes that, in any event, it notified SOLO in sub- stance that they would not be given effect. In Hanlon & Wilson Co., 267 NLRB 1264 (1983), the Board adopted a finding that the employer there had un- lawfully rejected doctors' excuses proffered by an em- ployee to justify his absences from work. In the instant case, Respondent took no action against these employees until it became clear that SOLO was not going to aban- don its demand for financial data. Respondent's actions in issuing the warnings were a reversal of its earlier deci- sion to go along with Perez' keeping the SOLO commit- tee members with him after the conclusion of the meet- ings with Respondent's representatives. In effect, Re- spondent was rejecting its earlier excusals. In sum, Re- spondent's actions in warning these employees were not oversights. Nor are they to be excused on the basis of Cole's letter to Perez in October. That recantation, if it could be called that, was not timely, clear, or specific; it contained no assurances and was not sent to any of the employees. It did not begin to meet the test referred to in Passavant Memorial Area Hospital, 237 NLRB 138 (1978), to constitute an effective disavowal. See also Hol- lander Home Fashion Corp., 255 NLRB 1098 at fn. 3 (1981). C. Warning Issued to, and Discharge of Diego Fernandez on 23 May The General Counsel alleges that Respondent, on 23 May, issued a warning to Diego Fernandez in order to discourage him from continuing his support of SOLO and discharged him that same day because he continued his support of SOLO and also because he advised Re- spondent of his intent to file an unfair labor practice charge with the Board. Respondent denies these allega- tions and asserts that it discharged Diego Fernandez solely because he punched in another employee's time- card. Diego Fernandez began working for Respondent in August 1980. He was employed as a machine operator at the time of his discharge, about 23 May 1986. The dncontroverted testimony establishes that he was an active, perhaps the most active, supporter of SOLO among Respondent's employees. Thus, he participated in its organizational effort, having distributed 30 to 40 au- thorization cards to his coworkers; he attended SOLO's meetings; he was told, as earlier noted, by two of Re- spondent's supervisors that he and other SOLO support- ers were wasting their time because Respondent would continue to have its own way; and he was a member of SOLO's employee committee, participating actively at the negotiation sessions. He arrived at work about 7: 15 a.m. on his last day of work and was accompanied then by his brother Rolando. As they approached the timeclock, Respondent's plant manager, Rafael Ricciardi, was standing about 10 to 15 feet from it and was looking at them while talking to Su- pervisor Guiseppe (Joe) Violante. As work was sched- uled to start 15 minutes later, Rolando Fernandez went for coffee for himself and Diego. Diego then punched in his own timecard and also Rolando's. The foregoing factual recited is based on the accounts of Diego Fernandez and Joe Violante. Their respective accounts differ as to what occurred after Diego Fernan- dez had punched in the timecards. Diego Fernandez' account is as follows. Later on that morning, his immediate supervisor, Pasquale Rose, ap- proached him while at work and informed him that he would have to sign a warning that was being given him for having punched in his brother's timecard. Diego Fer- nandez (Diego, to distinguish him from his brother, Ro- lando) responded that he would not sign the warning as he had not done anything out of the ordinary when he punched in his brother's card. Suddenly, Joe Violante appeared and told Diego to come to the office with him. Diego did so. They went to Plant Manager Ricciardi's office. Ricciardi asked Diego why he punched Rolando's card. Diego responded that, what he did, he had done many times and that his brother was in the plant with him. Diego then told Ricciardi that if "they" continued to harass him, he would go "to the U.S. Labor Depart- ment (to) complain." Ricciardi became angry and dis- charged him. Diego Fernandez also testified that he had never been told of any rule against punching in another employee's timecard and that there never had been any sign posted that pertained to any such rule. He related too that he LUSTRELON, INC. had, on prior occasions, punched in his brother's card in the presence of Respondent's supervisors, and that they had never said anything to him about his having done so. Guiseppe Violante's account of the events of that day is as follows. He and Plant Manager Ricciardi were standing near the timeclock. Ricciardi was facing the clock; Violante was standing with his back to it. Ric- ciardi told him that Diego had just punched in two time- cards. Violante then saw Diego put his own card and also his brother's card in the rack. He asked Diego why he punched in two cards; he told Diego that he knows the rule that anyone caught punching in two cards would be fired on the spot. Violante then went to see Ricciardi as he understood that all disciplinary action is to be done through the main office. Diego was then called to the office and given the option of quitting or of being fired. Violante also testified that ever since he began work- ing for Respondent 16 years previously and until about March 1986 there had been a sign posted over the time- clock, which reminded employees that if any employee is caught punching in another employee's timecard, the penalty is immediate dismissal. He testified also that on the day that Diego was fired the one sign posted was one reading: "Punch your timecard only." On further examination, Violante testified that he had fired Diego on the spot about 7 a.m. and that, later (about 8 a.m.), when he told Ricciardi that he had done so, Ricciardi instructed him to bring Diego to his office to sign a release . Violante testified that Ricciardi wanted the release because Diego had supported SOLO. Ricciardi did not testify; neither did Respondent's su- pervisor-foremen, Pasquale Rose. I credit Diego Fernandez' account. Violante's account was hardly persuasive. It is unlikely that he fired Diego "on the spot" and also that Diego was brought to Ric- ciardi's office, well after the workday had begun, to sign a release. Further, Violante's testimony that Ricciardi wanted Diego to sign a "release" is too vague and also illogical in that Ricciardi would have no reason to think that Diego would gratuitously accommodate him in re- leasing Respondent from all liability arising out of his discharge. Moreover, it is very unlikely, as Violante's testimony would have it, that Diego and Rolando Fer- nandez would have flagrantly disregarded an established rule calling for immediate discharge; it is implausible that Diego would have punched in Rolando's card in the presence of a plant manager with knowledge that he would thereby lose a job he has had for almost 6 years. Lastly, I note that Ricciardi did not testify to controvert Diego's testimony that Ricciardi discharged him when he said he would go the U.S. Labor Department to stop the harassment. The credited evidence establishes that Diego Fernan- dez was an active supporter of SOLO; that Respondent was aware of his support of SOLO; that there never was a posting or other promulgation of any rule barring one employee from punching in the timecard of another em- ployee solely as a convenience;' that Respondent con- ' Respondent adduced evidence that, in prior years, two employees had been discharged for incidents involving timecards One of those em- 383 jured up a "rule" as a pretext to issue a warning to Diego Fernandez on 23 May in order to harass him be- cause he supported SOLO, and particularly SOLO's ne- gotiating demands; and that when Diego Fernandez made it clear to Ricciardi that he was not intimidated by that warning, but would protest the harassment, Ric- ciardi discharged him. A separate issue exists whether the evidence supports a finding that Diego Fernandez was discharged also for a reason proscribed in Section 8(a)(4) of the Act. The complaint alleges that he was fired because he informed Respondent that he intended to file unfair labor practice charges with the Board. As just found, Diego protested on 23 May that if Respondent continued in its "behavior towards [him]" he "was going to go to the U.S. Labor Department and complain what they were doing to [him]." The most obvious thing to note, respecting his remark, is that the National Labor Relations Board is the agency responsible for investigating complaints by em- ployees of harassment based on union activities. Also noteworthy is that the Board, only a few months before his discharge, had conducted an election among Re- spondent's employees and certified SOLO. Lastly, I note that the Board affirmed a finding by Administrative Law Judge Edelman, in a case with a similar fact pattern, that a Spanish-speaking employee's use of the term, "Labor Department" pertained to the Board. See Book Covers, Inc., 276 NLRB 1488 (1985). Also, the Supreme Court has held that Section 8(a)(4) is not to be read literally but is to be construed liberally in order to afford employees broad protection. See NLRB v. AA Electric Co., 405 U.S. 117, 122 (1972). All these factors support the finding, which I now make, that Diego Fernandez was dis- charged because he informed Respondent, in essence, that he intended to file an unfair labor practice charge with the Board to stop Respondent's unlawful harass- ment of him. D. Warning and Suspension of Rolando Fernandez Rolando Fernandez (Rolando) began working for Re- spondent over 5-1/2 years ago. He is the most senior em- ployee in the acid department. He had distributed au- thorization cards for SOLO during its organizational effort and did so although he was then a delegate for a rival labor organization, as related above. A picture of a SOLO committee, which included Rolando, was pub- lished in a Hispanic newspaper. Vice President Walter Weil was given a copy of this newspaper at a negotiating session on 13 March. Well saw the photo then and ac- knowledged that Rolando was an active supporter of SOLO. Rolando was not disciplined by Respondent on 23 May, the day his brother was issued a warning and was discharged, as discussed above. On 29 May, Rolando was issued a warning. The General Counsel contends that the reason given by Respondent is baseless and that the warning was intended to discourage his support for ployees had punched in the card of another employee who was absent from work that day, another had altered his own card Those incidents do not establish that Respondent had a practice or rule requiring immedi- ate discharge for punching in a card as was done in the instant case 384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD SOLO and to provide an excuse for Respondent to sus- pend him from work for a week , also to discourage sup- port for SOLO. Respondent asserts that the discipline meted out to Rolando on 29 May was unrelated to his union activities. Rolando's job in the acid department required him to remove parts that were submerged in an acid bath, rinse them in a water bath, shake off the excess liquid, and then to take these parts to his machine for processing. As the acid used is highly corrosive, the workers in that de- partment wear protective clothing-rubber aprons, rubber gloves, and so on. Rolando, as the senior employ- ee, trained new employees in that department. Rolando's account of the events on 29 May is as fol- lows. He was performing his job that day in a routine manner. His foreman, Joe Cirone, and Vice President Well were standing about 10 feet from him. Cirone called out to him that he was spilling water on the floor. He responded that "this is not correct" and he told Cirone that he is the oldest employee there and is always careful, and that "the liquid doesn't spill." (It appears that the job involves minor dripping, hence the protec- tive clothing. I construe the translations of Rolando's ac- count, as they are quoted above, as his saying in effect that the dripping then was no more than normal.) Later that morning, Violante told him he was fired, and that it was not "his order." Violante told him to go with him to the office. He accompanied Violante to the office. Weil was there with an office employee. Rolando was told then that he was not going to be fired but was given a week's suspension. He was suspended a week. Later he volunteered to SOLO to be his brother's replacement on SOLO's negotiating committee and was present at the next two sessions-the one on 27 June and a later one. As noted above, Violante testified in this case. Howev- er, he did not refer to the 29 May incident in his testimo- ny. Supervisor-Foreman Cirone did not testify. Vice President Weil did end his account of the 29 May inci- dent as follows. He was standing with Foreman Joe Cirone and observed Rolando take a piece out of the cleaning tray in such a way that the liquid ran onto the floor in "a nice, big flow." Weil told Cirone to tell Ro- lando to let the pieces drip properly. Cirone did so. A minute later Rolando again caused a spill. He did "the exact same thing just as if he were trying to be spiteful." Weil told Cirone to give him a warning. Cirone did so. Later, Cirone informed Weil that the warning he gave to Fernandez was his third and that he was due to be fired. Weil called Respondent's labor counsel and then decided on a 1-week suspension for Fernandez. Other than what Weil testified to, there is no evidence in the record to indicate that Respondent had a policy of discharging employees summarily on the third warning. Nor is there evidence that Rolando had prior warnings, other than a notation to that effect on the 29 May writ- ten warning itself. I credit Rolando Fernandez' account. While it may be possible, it is unlikely that an experienced employee wearing clothing to protect himself against a corrosive acid would splash it about. I note too that Supervisor- Foreman Cirone did not testify to challenge Rolando's account. In view of Rolando's support for SOLO, of which Respondent was aware, the pretextual nature of the warning given him and the union animus fairly to be inferred from it, and in view of the discrimination prac- ticed less than a week before against Diego Fernandez and the other evidence bearing on that finding, I find that the General Counsel has made out a prima facie showing that Rolando Fernandez, a known supporter of SOLO, was disciplined on 29 May because of that sup- port. As Respondent has not presented any probative evidence to negate this prima facie showing, I find that Respondent warned Rolando Fernandez on 29 May and then suspended him from its employ for a week in order to discourage him from supporting SOLO. See Industrial Agrico Processing, 274 NLRB 711 at fn. 2 (1985), for an analogous holding. E. Alleged Unlawful Refusal to Bargain The complaint alleges that Respondent has separately violated Section 8(a)(1) and (5) of the Act by having en- gaged in each of four types of conduct and also by its overall conduct. Specifically, the complaint cites the fol- lowing acts as distinct violations; canceling meetings and refusing to meet unless SOLO accepted Respondent's de- mands or because SOLO had filed an unfair labor prac- tice charge; unilaterally changing terms of employment of unit employees; failure to furnish requested financial data; having issued warnings to employees on SOLO's negotiating committee; and its overall conduct. In the brief filed with me, the General Counsel set out four points of argument that pertained to the alleged viola- tions of Section 8(a)(1) and (5)-the alleged unlawful re- fusal to provide financial data; "surface bargaining," the alleged refusal to meet because SOLO filed an unfair labor practice charge; and alleged unlawful unilateral changes in the employees' workweek. Respondent asserts it never claimed inability to pay and hence contends that it was under no duty to furnish SOLO with financial data. It contends too that it engaged in "hard," not "sur- face" bargaining. It denies having unilaterally changed the workweek or refused to meet because SOLO filed unfair labor practice charges or otherwise. As noted above, the first negotiation session took place on 3 March at which SOLO presented Respondent with its demands that were framed as modifications of or ad- ditions to provisions of the last collective-bargaining agreement between Respondent and Local 298. For ex- ample, three additional holidays were sought as were a $1 yearly increase in the hourly wage rate (as contrasted to 20 cents in the last year of the Local 298 contract), and a pension fund contribution where there had been none previously. In addition, ventilation, heating, and sanitary issues were raised by SOLO. Respondent took those demands under consideration and agreed to meet again. The second session took place 10 days later. Respond- ent's representative reported that the complaint SOLO had raised as to the facilities in the women's bathrooms in the plant had been taken care of. Agreement was reached on the substance of a safety committee. As to a question raised by SOLO concerning certain layoffs, Re- spondent produced a computerized employee list to satis- LUSTRELON, INC. fy SOLO that the layoff procedure it followed was cor- rect. Respondent's representative stated also that in the absence of a new collective-bargaining agreement be- tween SOLO and Respondent it intended to follow the provisions of its Local 298. The session ended with agreement on two more meeting dates, 27 and 31 March. On 27 March, only Attorney Cole appeared for Re- spondent. He read a prepared statement. Its text follows: As you can see, I am alone here at this negotiat- ing session. There is no one from the Company here today. Mr. Gruodis has returned from his recent trip to the Far East and has reviewed your demands over the life of the three year agreement. The total cost to Lustrelon of your current demands is $11,319,075. The wage increases demanded alone are $4,992,000. The medical and dental coverages demanded are $2,376,000. Given the enormity of these demands, it was felt that no constructive pur- pose would be served by having Company officials here at this meeting. We believe that SOLO does not understand the industry that Lustrelon operates in. The industry itself is a highly competitive industry and large profits per piece are practically non-existent. While many of our employees have skills that are important to us, there are many other people not employed by our Company who can work for us to the same degree of efficiency. The wages and in- creases that you have demanded in this contract would make any company in this industry unprofit- able. We respect our workers who respect us. We fur- nish considerable work for a great many people. Solo has come into this negotiation after an election campaign where you raised the people's expectation levels so high that this Company will not capitulate to your demands. Lustrelon suggests that SOLO go back to the people and tell them that the Company will not meet their demands. I have here a set of demands that we have prepared that we believe to be more reasonable than yours. We request that you take these demands back to the people and discuss the realities of our business with them . We suggest fur- ther that you withdraw all of your demands from the table and come back with a new set of demands that take into account a wage freeze. We had previously agreed with you that we would negotiate in our next negotiating session on Monday, March 31, 1986. We believe that nothing can come out of this next meeting until after you have removed these outrageous demands of yours from the table and begun to negotiate in a more rea- sonable fashion. We, therefore, wish to cancel this meeting for Monday. We will be happy to return to the negotiating table after you have presented us with a new set of written demands that we can study. We will presume that these demands will be reasonable and will take into account the wage freeze and other items that have been discussed in the Company's demands. 385 Cole then handed SOLO's president, Perez, the fol- lowing set of demands, which were referred to in the above statement: 1. Open Shop Provision. 2. Wage Freeze for three year collective bargain- ing agreement. 3. Eliminate three personal days currently in force. 4. Company contribution to medical coverages to be frozen at current level. Any increases in cost for individual or family membership shall be paid for by the employee. 5. Regular monthly meetings with groups of em- ployees to discuss quality and productivity improve- ment and methods of improvement of working con- ditions and employees' suggestions. Union present if desired by SOLO. 6. In order to eliminate vandalism and theft from Company, the Company demands the right to con- duct random searches of any employee automobiles on premises. 7. All vans shall not be permitted entry to the Company premises. Any employees traveling by vans shall be discharged at the guard check. 8. All union demands not previously agreed to are denied. Regarding item 8, the only proposal by SOLO that may be said to have been previously agreed to by Respondent was to its proposal that a safety committee be estab- lished; Respondent agreed "subject to contract lan- guage." When Cole concluded his reading of the prepared statement on 27 March, Perez translated his remarks into Spanish for the benefit of the employees on SOLO's committee. Perez then told Cole that he would be will- ing to go along with the freeze proposal provided Re- spondent produced its books and records to enable Perez to "justify to [the employees] the reason for this type of proposal." Cole denied the request. There is a conflict whether Cole elaborated on that response. Perez testified that Cole then said that there was no need to substantiate Respondent's denial for a wage freeze as the employees were "standing around doing nothing." Cole testified that he simply denied the request and did not say any- thing further because he did not want to go beyond the language of the typed statement he had just read. Cole denied that he told Perez that he could verify the need for a freeze simply by noting that the employees had nothing to do. I credit Cole's account as it is unlikely that he, having prepared a written statement to read at the session with no other representative for Respondent present to assist, would have made the off-hand comment attributed to him by Perez. Perez testified that he and Cole then discussed an impending layoff or a "shutdown of some sort." Cole, however, testified that he limited his discussion on 27 March to the statement he had prepared and read. Perez' account of a "shutdown of some sort" is too vague for what seems to be a subject of some impor- tance, a plant shutdown. Perez' account is not persua- sive. I credit Cole's. 386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There was no meeting held on 31 March. Letters were exchanged between Perez and Cole, which essentially re- stated their respective positions, as set forth on 27 March. Cole wrote Perez on 11 June to state that SOLO has yet to submit revised proposals and that Respondent would meet with SOLO when it was ready to resume negotiations with revised demands. Perez then called Cole and they set up a meeting for 27 June. In that tele- phone conversation, Perez told Cole that the employees had informed him that Respondent had introduced a 4- day workweek. Cole responded that he knew nothing about this and that Respondent would give Perez its po- sition on it at the next session. On 27 June, Perez presented Cole with a set of re- duced proposals, e.g., a 50-cent hourly wage increase each year instead of a $1 increase; 7 sick days instead of 10. Perez testified that he then referred to the subject of the 4-day workweek. His account is as follows. He told Cole that he understood Cole to have said, at the outset of negotiations, that Respondent would follow the terms of the expired Local 298 contract until agreement on a contract was reached with SOLO. Perez then pointed out that the Local 298 contract provided for a 40-hour workweek, not a 4-day workweek. Respondent's vice president, Well, testified in response to Perez' account that Respondent followed the management prerogative provisions of the Local 298 contract in reducing the workweek for some employees to 4 days and also in shutting down the plant for the week, 30 April to 6 May. He testified, and this without contradiction, that Cole had given Perez written notice of the shutdown. Weil testified further that Perez never asked to discuss the 4- day workweek. I credit Weil's account as there is noth- ing in the correspondence SOLO had with Cole, respect- ing its complaints as to the negotiations, that refers to the 4-day workweek, and particularly as Perez was not hesi- tant in that correspondence to state his complaints as to the negotiation processes. The parties met again on 23 July. At that session, Cole handed Perez the following: Employer offer 1. Three (3) year agreement commencing on date of ratification by employees. 2. Wage increase of One (1%) per cent per year on signing and on the anniversary dates of the con- tract for all employees who have at least one year's seniority at that time. 3. Company contribution to medical coverages to be frozen at current level. Any increase in cost for individual or family coverage to be paid for by em- ployee. No entry into SOLO funds-continuation with same provider (SOLO HAS NOT FOR- WARDED INFORMATION ON PLAN AS RE- QUESTED IN 6/27 MEETING). 4. Eliminate three personal days. 5. Open shop. 6. Regular monthly meetings with groups of em- ployees to discuss quality and productivity improve- ment and methods of improvement of working con- ditions and employees' suggestions. Union present if desired by SOLO. 7. In order to eliminate vandalism and theft from Company, the Company demands the right to con- duct random searches of any employee automobiles on premises. 8. All vans shall not be permitted entry to the Company premises. Any employees traveling by vans shall be discharged at the guard check. 9. All union demands not previously agreed to are denied. Perez told Cole that he has "got to be kidding." Cole responded that the offer was serious and that it was more than Respondent could afford. Perez then asked for Re- spondent's books and records and Cole denied the re- quest, saying Respondent had already made clear its po- sition respecting such a request. Parenthetically, I note that Respondent's contract with Local 298 had included union-security and dues-checkoff provisions and allowed unit employees 3 personal days a year. Perez testified that later in July Cole telephoned him to say that since Perez had filed an unfair labor practice charge alleging that Respondent refused to bargain with SOLO, Respondent would not meet again with SOLO until the charge was resolved. Perez testified further that he told Cole that SOLO had not filed any refusal to bar- gain charge . Perez testified that he then checked with Region 22, which advised him that SOLO had filed a charge on behalf of Diego Fernandez. Cole testified that he has no recollection of telephon- ing Perez in late July and that his diary, in which he records telephone calls and other business data, has no entry of any such call. He testified that the only phone calls he made to Perez in July were on 10 and 15 July, as reflected in his diary, and that resulted in the 23 July session discussed above. Perez wrote Cole on 14 August to complain about Re- spondent's refusal to produce its financial books and records. He made no reference in that letter to a refusal by Respondent to meet while there is pending a refusal to bargain charge. I credit Cole's testimony, not Perez. The absence of any assertion in Perez' letter of 14 August of any such refusal to meet tends to support the import of Cole's testimony-that he never refused to meet because such a charge was pending. Further, it is unlikely that Cole would have made such a statement in the offhanded way recounted by Perez. The General Counsel placed in evidence a copy of a Dun and Bradstreet report on Respondent that SOLO had obtained. That report did not have a rating for Re- spondent; it did contain statements that reflected slow payments by Respondent to some of its creditors be- tween 1 October 1985 and 1 October 1986. There was also a notation on the report that Respondent's president had written on 15 October that "[p]rofits for the past six months were up." The last negotiation session held between Respondent and SOLO took place on 6 November. Respondent then offered 1.6-percent wage increase for each year of a 3- year contract. SOLO reduced its demands further. There was discussion also of changing the method of paying unit employees. The meeting apparently ended on a LUSTRELON, INC. strange note. It seems that sometime before 6 November SOLO had asked a Teamsters union to pretend to engage in an organizing drive among Respondent's em- ployees; apparently SOLO was hoping that Respondent would react by increasing its offers to SOLO to frustrate a Teamster campaign. At the 6 November session, SOLO accused Respondent of bringing the Teamsters on the scene. No further negotiation sessions were sought or held. As outlined earlier, the complaint alleges that Re- spondent, by each of the following matters, violated Sec- tion 8(a)(1) and (5) of the Act: (a) unilaterally implementing a four day work week. (b) cancelling meetings and refusing to meet unless SOLO accepted its demands or because SOLO filed charges under the Act. (c) issued warnings to members of SOLO's bar- gaining committee. (d) failing and refusing to furnish requested finan- cial information. (e) its overall conduct. Respecting the contention that Respondent unilaterally reduced the workweek, the evidence is clear that Re- spondent was committed to following the basic terms of the Local 298 contract until it reached agreement with SOLO on the terms of a new contract. The General Counsel notes that the Local 298 contract provides that the "normal" workday amounts to 8 hours and that the "normal" workweek consists of 5 days. The General Counsel argues then that the normal workweek consists of 40 hours and that Respondent, by having reduced the workweek to 4 days for some unit employees, thereby changed their terms of employment without notice to SOLO. Respondent points to the broad management pre- rogative clause in the Local 298 agreement as the basis for its claim that it had a contract right to reduce the workweek. I note too that the Local 298 contract states that it is not to be construed "as a guarantee of hours of work per day, or per week, or of days of work per week." Significantly, the record before me does not con- tain evidence of past practice to indicate that Respondent had been barred from implementing on its own a work- week reduction. Such evidence is an essential element of proof for the General Counsel. See Eazor Express, Inc., 238 NLRB 1165 (1978). I therefore find no merit to the General Counsel's allegation that Respondent violated Section 8(a)(5) by unilaterally reducing the workweek of some unit employees. The major aspect of the second allegation is that that Respondent violated Section 8(a)(5) by refusing to meet because SOLO had filed charges under the Act. Based on the credibility determination above as to the conflict- ing accounts of Cole and Perez, that allegation lacks merit. Part of this second allegation is that Respondent canceled meetings; that contention is treated separately below. The complaint refers to the unlawful warnings to members of SOLO's bargaining committee as unlawful conduct engaged in by Respondent, which established that it violated Section 8(a)(5). The complaint does not 387 allege these warnings in a separate paragraph and by themselves to be violations of Section 8(a)(5). The Gen- eral Counsel's brief treats them as evidentiary factors supporting the allegation that Respondent's overall con- duct constituted bad-faith bargaining.2 These warnings then will be treated below in conjunction with other fac- tors in weighing Respondent's overall conduct in its ne- gotiations with SOLO. The next contention of the General Counsel is that Re- spondent unlawfully failed and refused to furnish re- quested financial data to SOLO and, in conjunction therewith, canceled negotiation sessions and refused to meet with SOLO. There is no factual issue on this point. Cole canceled the 31 March meeting and proposed a 3- year wage freeze after having informed SOLO on 27 March of Respondent's estimates of the total costs of SOLO's demands; he told SOLO that its demands would make it or any company "in this industry" unprofitable; and he notified SOLO of Respondent's intent to defer meeting again until SOLO takes into account, inter alia, the wage freeze. SOLO's representative made it clear that SOLO wanted to take into account the wage freeze proposal and he requested Respondent to give SOLO the necessary financial data to enable it to go back to the bargaining unit employees. Respondent refused to furnish the data. In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the employer there rejected a union's demand for a wage in- crease of 10 cents per hour and asserted that any in- crease of more than 2-1/2 cents per hour would put it out of business. When the union there asked it to produce evidence to substantiate that statement, the em- ployer denied the request. The Court held that the Board's order should be enforced whereby the employer would be compelled to furnish the financial data request- ed. The Court noted that good-faith bargaining necessari- ly requires that claims made by either side should be honest claims and an asserted inability to pay an increase is important enough to require proof of its accuracy. Re- spondent's claims that a 3-year wage freeze is consistent with "the realities of [its] business" and that SOLO's de- mands would make Respondent unprofitable presumably were made in good faith. Respondent, under the ration- ale of Truitt, must be prepared to demonstrate that they are honest claims. Thus Respondent, by not honoring SOLO's request, failed to bargain in good faith. To the same effect, see California Nevada Golden Tours, 283 NLRB 58 (1987), and Teleprompter Corp., 227 NLRB 705 (1977), enfd. 570 F.2d 4, 8 (1st Cir. 1977). As to the allegation that Respondent unlawfully can- celed meetings and refused to meet with SOLO, the evi- dence discloses that Respondent canceled the 31 March meeting but that it did meet thereafter as requested. I find that the evidence fails to establish that Respondent's cancellation of the 31 March meeting, by itself, was 2 In the unlikely prospect that the warnings, by themselves, were in- tended to be alleged as a separate, distinct violation of Sec 8(a)(5), I would dismiss such an allegation Otherwise, every act of interference with Sec 7 rights could be stretched into a separate 8(a)(5) violation simply because each such act can be said to have some impact on negoti- ations 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD aimed at preventing a resolution of the underlying dis- putes; the cancellation of the 31 March session was ancil- lary to, and subsumed under, the allegation that Re- spondent unlawfully refused to furnish requested finan- cial data, discussed above. The last issue raised by the pleadings is the most diffi- cult to resolve-whether Respondent engaged in surface or bad-faith bargaining. In making this determination, the Board looks to the totality of the circumstances in which the bargaining took place, at and away from the bargain- ing table. Hedaya Bros., 277 NLRB 942 (1985), and cases cited therein. More specific guidelines have also been set out. A party may lawfully stand firm on a bargaining po- sition he reasonably believes fair or has the strength to achieve; other conduct may be indicative of bad faith. Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). There is no litmus test that can quantitatively decide the issue. Reasonableness or lack thereof of a party's propos- als are not to be evaluated in determining whether a party has bargained in good faith . See Reichhold Chemi- cals, 277 NLRB 639 (1985). Section 8(d) of the Act does not compel an employer to make concessions. Nonethe- less, an employer is obligated to make a reasonable effort to compose differences . NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953). Conduct indicative of bad faith includes delaying tactics, unreasonable bargaining demands, uni- lateral changes, efforts to bypass the union, failing to designate an agent with sufficient authority , withdrawal of agreed-on provisions, and arbitrary scheduling of meetings . See Atlanta Hilton & Tower, supra at 1603. Co- ercive conduct coupled with regressive proposal also can manifest bad faith. Heyada, supra. The factual situation in the instant case places it be- tween Reichhold Chemical, supra, where the Board found hard bargaining and Heyada, supra, where bad-faith bar- gaining was found . In Reichhold, the Board discounted 8(a)(1) statements by supervisors threatening discharge and the futility of bargaining . In Rescar, Inc., 274 NLRB 1 (1985), the Board also discounted a pre- 10(b) statement of an inebriated vice president of the employer there that it had no intention of signing a contract. On the one hand, I note that there is, in this case, a virtual absence of the types of conduct noted above that point towards bad-faith bargaining-bypassing a union and so on. On the other hand, the coercive conduct in this case was aimed directly at employees on SOLO's ne- gotiating committee at the instance of Respondent's key officials, Weil and Ricciardi, and the timing thereof re- lates closely to SOLO's demands for financial data. Again, on the one hand, Respondent ultimately did make wage increase offers of 1 percent, and then 1.6 percent, and on the other, it unlawfully refused to produce data to substantiate its claim that SOLO's demands would make its operation unprofitable. There are other factors to consider. I note that Re- spondent's contract with Local 298 contained not only union-security provisions but also a dues check-off clause. Yet Respondent repeatedly proposed an open shop to SOLO. The Local 298 contract, too, called for wage increases substantially more than the percentages that Respondent offered SOLO. By themselves, Re- spondent's proposals could be just hard bargaining and ploys to induce SOLO to lower its demands. In context with other factors, however, the regressive nature of Re- spondent's proposals could be considered in evaluating bad faith. After weighing all the relevant factors and noting par- ticularly the unlawful warnings to SOLO's negotiating committee, the discriminatory treatment of the Fernan- dez brothers, Respondent's refusal to produce financial data to back up its own representations to SOLO, and the regressive nature of the proposals offered by Re- spondent, I fmd that the evidence supporting the com- plaint allegation outweigh the factors pointing towards good-faith bargaining, e.g., its meetings with SOLO, and its exchanges of proposals. From the totality of the cir- cumstances, as they are reflected in the record before me, I fmd that the General Counsel has shown, by a pre- ponderance of the evidence, that Respondent entered into and participated in negotiations with SOLO with an essentially closed mind intent on forcing SOLO to capit- ulate to its dictates and disinterested in seeking a peace- ful resolution of its differences with SOLO. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. SOLO is a labor organization as defined in Section 2(5) of the Act and the exclusive representative of the following unit appropriate for purposes of collective bar- gaining: All production and maintenance employees of Re- spondent, including shipping and receiving employ- ees but excluding all office employees , clerical em- ployees, administrative employees, executives, guards, maintenance men, professional employees, supervisors as defined in the Act and all other em- ployees of Respondent. 3. Respondent, in violation of Section 8(a)(1) and (3) of the Act, has engaged in the following conduct: (a) Issued warnings on 16 May 1986 to employees on SOLO's negotiating committee in order to discourage support for SOLO. (b) Issued a warning on 23 May 1986 to Diego Fer- nandez and discharged him from its employment on that day to discourage support for SOLO. (c) Issued a warning on 29 May 1986 to Rolando Fer- nandez and suspended him from its employ for a week in order to discourage support for SOLO. 4. Respondent, in violation of Section 8(a)(1) and (4) of the Act, discharged Diego Fernandez on 23 May 1986 because he informed Respondent, in substance , that he intended to file an unfair labor practice charge with the Board to protest the warning issued earlier to him that day. 5. Respondent, in violation of Section 8(a)(1) and (5) of the Act, has failed and refused to bargain in good faith with SOLO and has failed and refused to supply SOLO with requested financial data needed to enable it to bargain with Respondent respecting Respondent's LUSTRELON, INC. claim, in substance, that it cannot meet SOLO's bargain- ing demands and yet remain profitable. 6. In all other respects, the allegations of unlawful conduct set out in the consolidated complaint are with- out merit. REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. Accordingly, Respondent shall be ordered to offer Diego Fernandez immediate and full reinstatement to his former position, or if it no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and to make him whole for having unlawfully discharged him on 23 May 1986; and to make whole also Rolando Fernandez for having un- lawfully suspended him from its employ in late May or early June 1986 . Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent shall also be ordered to remove from its files all references to the unlawful warnings given on 16 May 1986 to employees on SOLO's negotiating commit- tee to Diego Fernandez on 23 May 1986 and to Rolando Fernandez on 29 May 1986; to remove from its files, too all references to its discriminatory discharge of Diego Fernandez on 23 May 1986 and to its discriminatory sus- pension of Rolando Fernandez in late May or early June 1986 and to notify these employees that these steps have been taken and that the unlawful acts will not be used against them in any way. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondent, Lustrelon, Inc., Edgewater, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Warning employees to discourage support for Soli- darity of Labor Organizations International Union (SOLO). (b) Discharging or suspending employees because they support SOLO. (c) Discharging any employees to discourage the filing of unfair labor practice charges with the Board. (d) Refusing to bargain in good-faith with SOLO and refusing to furnish financial data requested and needed by SOLO to fulfill its obligations as exclusive representa- tive in the unit described as certified by the Board. 8 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 389 (e) 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 affimative action necessary to ef- fectuate the policies of the Act. (a) Offer Diego Fernandez immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without preju- dice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them , in the manner set forth in the remedy section of the decision. (b) Make whole Rolando Fernandez for all loses of earnings and other benefits suffered as a result of his un- lawful 1 week's suspension from employment, in the manner set forth in the remedy section above. (c) On request, bargain collectively in good faith with SOLO as representative of the employees in the certified unit, with respect to their wages, liners of work, and all other terms and conditions of employment. (d) Provide SOLO with the financial data it requested to verify Respondent's assertion that honoring SOLO's demands would render its operations unprofitable. (e) Remove from its files any references to warnings given employees on SOLO's bargaining committee and to the separate warnings given Diego and Rolando Fer- nandez and notify them all in writing that this has been done and that the unlawful acts will not be used against them in any way. (f) 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. (g) Post at its Edgewater , New Jersey location copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that all allegations in the complaint of unlawful conduct that were not found to have merit are dismissed. 4 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."