Aztec Bus Lines, Inc.

AZTEC BUS LINES 1021 Aztec Bus Lines, Inc. and San Diego AFL-CIO Bus Drivers Local Division 1309 of the Amalgamat- ed Transit Union . Cases 21-CA-19497, 21- CA-19542, 21-CA-20162, 21-CA-20182, 21- CA-20214, 21-CA-20405, and 21-CA-20536 July 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On September 30, 1982, Administrative Law Judge Michael D. Stevenson issued the attached decision. The Respondent and the Charging Party filed exceptions, supporting briefs, and answering briefs. 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 only to the extent consistent with this Decision and Order. A. The 8(a)(1) Allegations We agree with the judge's finding that the Re- spondent violated Section 8(a)(1) of the Act by the statements of the Respondent's president, Augustus Zemba, to employee Frank Patton in October 1980 and by the statements of the Respondent's director of safety and training, Flo Ybarra, at a meeting of nonstriking employees in January 1981. We also agree with the judge that Zemba violated Section 8(a)(1) by his November 1980 comments to Thomas Reynolds concerning the Labor Law Jour- nal article about misconduct by strikers. According to Reynolds' credited testimony, Zemba falsely threatened-citing the article as authority-that any employee who was on the picket line at the time any other employee engaged in misconduct would be ineligible to return to work. An employ- er cannot lawfully make such a threat regardless of whether it invites the employees who hear it to consult attorneys or whether those employees have themselves been reading articles on the general subject of picket line misconduct. We do not, however, adopt his finding of a vio- lation in Zemba's statement to Reynolds in Febru- ary 1981 that the former was disappointed that Donald Randall and employee Jan Corona, presi- dent of the Union in 1979 and 1980, and chief shop steward, respectively, were still in positions of au- thority with the Union. The remark occurred during a conversation when Reynolds joined Zemba and Ellen Harrison, the Respondent's comptroller, who were having coffee at a local res- taurant, and did not include any threats of reprisals. Inasmuch as the comment was made in the course of an otherwise noncoercive conversation, we find that in light of all the circumstances we cannot agree with the judge that Zemba's February remark reasonably tended to restrain, coerce, or interfere with rights guaranteed by the Act.' Ac- cordingly, we shall dismiss this allegation. B. The 8(a)(5) Allegations In section III,C,2, of his decision the judge re- jected the contention that the Respondent engaged in bad-faith bargaining prior to the onset of the strike. We agree.2 The judge also found in section III,D, that on April 3, 1981, the parties agreed on a contract and that the Respondent thereafter unlawfully refused to execute that agreement and that the Respondent violated Section 8(a)(5) by bad-faith and surface bargaining subsequent to commencement of the strike. We disagree with these conclusions and re- verse for the reasons set forth below.3 As discussed by the judge, the collective-bar- gaining agreement between the Union and the Re- spondent expired on June 30, 1980. Negotiations for a new contract had begun on June 12, but were unsuccessful, and the Union struck on August 23, 1980. During the strike there was a hiatus in the parties' bargaining sessions following the Respond- ent's proposal of November 6, 1980. After an ex- change of correspondence, Union President Moore wrote to the Federal mediator on February 23, 1981,4 asking that a meeting with the Respondent be arranged in order to present a union counterpro- posal. The parties met on March 12. Prior to the March 12 meeting, the Respondent's attorney and chief negotiator, Josiah Neeper, sent a letter to Union Counsel Richard Prochazka, who had been designated as the Union's new chief nego- tiator in Moore's letter. Neeper's letter noted that the original purpose of the meeting had been the Respondent's receipt of a new counterproposal from the Union, but went on to state that in "pre- paring for the meeting, the Respondent finds that its position has changed since the time of its last ' See Haynes Motor Lines, 273 NLRB 1851 (1985). 2 We need not decide here whether the proposal by the Respondent of a clause diminishing the Union's role in the grievance procedure is evi- dence of bad faith, because we agree with the judge that the Respondent did not insist to impasse on the proposal. 8 We adopt the judge's finding that the Respondent violated Sec. 8(a)(5) of the Act by making a unilateral change in its health benefit plan. We shall amend the Order, however , to provide make-whole relief for any losses employees may have suffered as a result of the change in plans. 4 All dates hereafter are 1981 unless noted otherwise. 289 NLRB No. 125 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proposal because of changed circumstances. Its changed position will be reflected in its response to the Union's proposal." At the March 12 meeting Neeper referred to the "changed circumstances" mentioned in the letter and stated that at a subsequent meeting the Re- spondent would present proposals in response to the "changed circumstances."5 The Union then tendered a proposal that made certain changes in the Respondent's November 6 proposal, rejected the union-security subclause that would have ex- empted nonstriking employees from the require- ment of joining the Union, and accepted the griev- ance-and-arbitration article contained in the Re- spondent's November 6 proposal. Neeper asked some questions about certain sections of the Union's counterproposal and again stated that the Respondent would be making a new proposal based on changed circumstances. At the next meeting held on March 26, Neeper presented the Respondent's counterproposal, which included most of the provisions in the Respondent's proposal of November 6, certain modifications to that proposal in response to matters raised by the Union on March 12, and the Respondent's previ- ously promised response to "changed circum- stances." The Respondent's March 26 proposal in- cluded section 9.7, which provided that employees who had been off work for more than 3 months would be required to take a physical examination from the Respondent's physician; section 9.8, which required employees who had been off work more than 30 days to be requalified on all equip- ment for which they had been qualified before being off work; section 9.9, which provided that employees who had been off work more than 3 months must provide a current Department of Motor Vehicles printout of their driving record; and section 17.8, which obligated the Respondent to bear the cost of any required physical examina- tion of employees. In addition, the March 26 pro- posal stipulated that provisions regarding resolution of the strike and reinstatement of the strikers would be negotiated. Neeper identified sections 9.7 through 9.9 and the provision for negotiation of a strike settlement as the Respondent's response to its perception of changed circumstances. The Re- spondent informed the Union that, based on the recommendations of an industrywide group, it had substantially instituted the procedures in sections 5 The changed circumstances referred to picket line misconduct by strikers that might disqualify them from reinstatement , the fact that a large number of replacement drivers had been hired who might wish to retain their jobs after the strike (resulting in an insufficient amount of work for both the replacements and the returning strikers), and the possi- bility that the replacement drivers might object to a union-security provi- sion that would subject them to union discipline 9.7, 9.8, and 9.9 in October or November 1980 and described the justification for the particular subsec- tions. It is undisputed that Neeper informed the Union that the provisions were to apply to return- ing strikers, and the Union did not object. With re- spect to the anticipated negotiation of provisions relating to resolution of the strike and the return to work of the strikers, Neeper-according to testi- mony specifically credited by the judge-told the Union that the Respondent expected to propose specific language and anticipated that the Union would make demands in the area as part of a final agreement. The judge found that one of the union representatives "nodded" in understanding of what was said, if not in agreement with it. The parties' next meeting was on April 2. The Union first proposed modifications to sections 9.7, 9.8, and 9.9, which were rejected by the Respond- ent. Union negotiator Prochazka then wrote out modifications of sections 9.7 and 9.9, which the Re- spondent accepted. After discussion of the notice- of-termination section of the November 6 proposal, Neeper again referred to specific proposals that the Respondent desired to offer and mentioned that the Respondent expected to receive proposals from the Union regarding strike resolution and striker return. The parties then broke for lunch prior to the scheduled afternoon session. During the lunchbreak the union representatives met with International Vice President Yelkey; in consequence, Prochazka called Neeper to cancel that afternoon's session, stating that "the International is unhappy with what we've done. They don't want us to meet with you this afternoon." Neeper and Prochazka then arranged for a meeting to be held on April 9. Meanwhile, the union negotiators conferred during the afternoon of April 2, and called a gener- al membership meeting for the following day. At that meeting, the membership voted both to return to work and to accept the Respondent's proposal as it was explained to them by the bargaining team. The Union then sent the Respondent two letters that had been prepared prior to the membership meeting. One letter purported to make an uncondi- tional offer to return to work, and the other pur- ported to be an acceptance of the Company's con- tract offer of April 2.6 As noted above, the judge found that the parties reached agreement on a collective-bargaining agreement and that the Respondent thereafter vio- lated Section 8(a)(5) by declining to execute it. We disagree. In our view, the record does not support a finding that agreement was reached on strike res- 6 The letters are set forth in full in the judge's decision. AZTEC BUS LINES 1023 olution and striker return. First, the Union's letter of April 3 clearly demonstrates that the Union was accepting not all, but rather only a part of the Re- spondent's offer. Thus, the record shows that the Union knew-and acknowledged-that the Re- spondent intended that provisions pertaining to strike resolution and striker return be included in any final agreement. But the Union's letter, after purporting to accept the Respondent's proposal, states that the Union viewed striker return and strike resolution provisions as issues "separate and apart" from a collective-bargaining agreement, al- though the Union would be willing to discuss those subjects independently of a collective-bargaining agreement. Thus, the Union's purported "accept- ance" really amounted to a counteroffer, which the Respondent of course was not obligated to accept. Indeed, given the Union's acknowledgment that it knew that the Respondent meant to include strike resolution and striker return provisions as part of any final agreement, we conclude that the Union, or at least the Union's attorney, could not in fact have held a good-faith belief that the parties had reached a complete agreement along the rather dif- ferent terms embodied in the Union's letter.? Hence, we find it clear from the evidence that there was in fact no meeting of the minds between the parties. Certainly, the Union was free to make an unconditional offer to return to work and end the strike, and to have the Board resolve any issues regarding the return of the strikers. But it was not entitled to insist also that the other remaining por- tions of the Respondent's proposal constituted the entire, complete, and enforceable collective-bar- gaining agreement between the parties, in light of the Respondent's clear statements to the contrary. The judge further concluded that the Respond- ent refused to offer bargaining proposals regarding matters of strike resolution and striker return and that, even if such a proposal was made, it was un- lawful, citing Georgia Kraft Co.,8 and Fitzgerald Mills Corp.,9 respectively. In our view, the former 7 For the purposes of our discussion , the same result obtains whether one views the Respondent as proposing only a single integrated agree- ment, or a separate agreement covering strike resolution and striker return issues, which would be resolved concurrently as part of a package. Either view is consistent with the judge's finding, based on credibility de- terminations, which we adopt, that Neeper told the Union on March 26 and again on April 2 that there were specific proposals that the Respond- ent desired to make, and anticipated that the Union would also make de- mands "as part of a final agreement." However, these same factual find- ings are not compatible with a conclusion that the parties in fact reached agreement. 8 258 NLRB 908 (1981 ). Subsequent to the judge's decision here, the Board in Clear Pine Mouldings, 268 NLRB 1044 (1984), overruled Georgia Kraft on the standards for striker misconduct . (See discussion, infra, under striker reinstatement issues, sec . 3, misconduct.) 9 133 NLRB 877 (1961), enfd. 313 F.2d 260 (2d Cir. 1963), cert. denied 375 U.S. 834 (1963). finding is contrary to the judge's own crediting, which we affirm, of Neeper's testimony that the Respondent intended to make proposals regarding strike resolution and the return to work of strikers, and that the Respondent expected also to receive proposals on these issues from the Union. Further, the judge's reliance on Georgia Kraft is misplaced. In that case the Board stated: Contrary to the Administrative Law Judge, however, a review of the record plainly re- flects that the issue of striker discipline was not, on December 3, presented by Respondent as a bargainable proposal, nor was it put forth on that date as a quid pro quo for agreement on a contract. Thus, it was unnecessary for the Administrative Law Judge to speculate as to what Henson's stipulated testimony "suggests," nor is it "obvious" that the issue of striker re- instatement was a bargainable "proposal" on December 3. Kelly was initially examined on this subject, as an adverse witness called by the General Counsel: Q. Whose idea was it, Mr. Kelly, to give Mr. Henson . . . a list of strikers to be fired? A. Mine. Q. Do you want to explain for us any reason that you had for doing it at that time as op- posed to any other? A. No, no, just that we had the meeting scheduled with Mr. Henson that particular day, and we thought-I thought we should advise them about the situation with these em- ployees. [Id. at 909.] Here, by contrast, the Respondent clearly put forth the issues of striker return and strike settle- ment as matters that it intended should be resolved as part of a final overall agreement. Nor did the Respondent bargain to impassse here. Indeed, the judge seems to have overlooked the factual set- ting-and its effect-that it was the Union which broke off in the middle of negotiations and, before their scheduled resumption, counteroffered with an acceptance of part of the Respondent's proposal and attempted to assert that that part constituted the entire agreement between the parties. The judge's alternative finding that if the Re- spondent made any proposal regarding strike reso- lution and striker return that proposal was unlaw- ful, is in our view simply erroneous and appears to be based, so far as the record shows, solely on con- jecture. In this regard, we conclude that Fitzgerald Mills Corp. is inapposite here. In that case, the re- spondent's attorney insisted that before any contract could be negotiated, the union would have to agree to the respondent's proposal with respect to the 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strikers. Thus, respondent there conditioned any bargaining on the union's prior agreement to a spe- cific nonmandatory proposal. It is clear from the discussion above of the relevant facts that a similar situation did not occur in the instant case. Indeed, there is nothing unlawful in the suggestion made by the Respondent, in the course of the negotia- tions, that those strikers accused of misconduct, to- gether with their union representative, meet with the Respondent regarding those allegations, that the parties negotiate with respect to those individ- uals, and in those instances where the parties could not reach agreement, that they attempt to arrange some sort of expedited or abbreviated arbitration procedure. 10 Unlike the judge, we conclude that the situation here is strikingly similar to that presented in Nord- strom, Inc., 229 NLRB 601 (1977). The Board's summary there is similarly appropriate here: "The issue here, succinctly, is whether one party to col- lective-bargaining negotiations can effectively con- clude negotiations by agreeing only to those de- mands of the other party which constitute manda- tory subjects of bargaining." (279 NLRB at 601) The Board answered the question in the negative. Although it is true that a party may not lawfully insist on inclusion of nonmandatory proposals-a course that we have found the Respondent did not pursue in the instant case-we believe that the judge's decision here, like the General Counsel's case in Nordstrom, goes well beyond that proposi- tion. Thus, to say as here that the proponent of a proposal addressing reinstatement and backpay of former strikers cannot lawfully insist on its inclu- sion in the final agreement means only that and no more. "It does not mean that once, out of necessi- ty, the nonmandatory proposal is removed from the table, the proponent of the nonmandatory sub- ject is not permitted to alter those proposals which are mandatory in light of the removal of the non- mandatory subject." Nordstrom, supra at 601. In sum, contrary to the judge, we agree with the Re- spondent that Nordstrom compels the conclusion in the instant case that the Union was not free to dis- regard or eliminate portions of the Respondent's March 26 offer and, by accepting the remaining Respondent proposals, assert that it had established a complete and binding collective-bargaining agree- ment that the Respondent was required to execute. Accordingly, we reverse and dismiss those portions of the complaint allegations. The judge also concluded that the Respondent engaged in bad-faith and surface bargaining after the commencement of the strike. He based that conclusion on his finding, which we have reversed above, that the Respondent unlawfully refused to execute a contract and insisted on nonmandatory subjects; the 8(a)(1) findings discussed above; and his assessment that the Respondent's proposals with respect to resolving strike issues would be "predict- ably unacceptable" to the Union. The judge pro- vided no basis for his assessment that the striker return and strike resolution proposals were "pre- dictably unacceptable" apart from his findings in support of the refusal to sign an agreed-on contract allegation. The Board has recently reaffirmed its standards for the review of contract proposals in Reichhold Chemicals, 288 NLRB 69 (1988). Al- though the Board will not make purely subjective assessments of bargaining proposals, it will "contin- ue to examine proposals when appropriate and con- sider whether, on the basis of objective factors, a demand is clearly designed to frustrate agreement on a collective-bargaining contract." Ibid. In view of the factual and legal analysis underlying our re- versal of the judge with respect to the refusal-to- sign-a-contract allegation, we find that the striker return and strike resolution proposals clearly do not support a finding of bad-faith bargaining under the Reichhold Chemicals test. Finally, we do not consider the 8(a)(1) violations found above to be a sufficient ground on which to base a finding that the Respondent engaged in bad-faith or surface bargaining.1' The judge in his discussion of the prestrike allegations concluded there was no evi- dence that Zemba's statements regarding the Union or misconduct by individuals were calculated to disrupt the negotiations or that they did so. Con- trary to the judge, we believe that the same is true of Zemba's and Ybarra's statements with respect to the allegations of bad faith in the poststrike bar- gaining. Accordingly, for all the foregoing reasons, we dismiss the allegations of bad-faith and surface bar- gaining in the poststrike negotiations. C. Striker Reinstatement Issues 1. The physical examination and testing requirements The judge concluded that the strikers listed in "Appendix A" of his decision did not receive a valid offer of reinstatement, premising this conclu- sion primarily on his finding that the Respondent unlawfully insisted that the returning strikers submit to physical examinations, take tests to re- 10 We do not suggest that the Respondent was entitled to insist to im- passe on those proposals, since we conclude that the Respondent here did not insist to impasse, we need not reach that issue " The judge dismissed complaint allegations that statements attributed to Tom Ingersol violated Sec 8(a)(1) of the Act As no exceptions were filed to that finding, we do not consider those allegations AZTEC BUS LINES qualify as drivers, submit printouts of Department of Motor Vehicles records (which would show any traffic violations), and fill out employment applica- tions. The judge's principal theory for fording a violation was that these conditions amounted to treating the strikers as new employees. If this were so, i.e., if these were conditions not imposed on nonstriking employees, then, under the authorities relied on by the judge, the Respondent would be guilty both of engaging in disparate treatment that penalized employees for striking and of imposing a condition that renders the offer of reinstatement suspect. The Respondent would thereby have vio- lated Section 8(a)(3) and (1) of the Act. Standard Materials, 237 NLRB 1136 (1978), enfd. mem. 604 F.2d 449 (5th Cir. 1979); St. Cloud Foundry & Ma- chine Co., 130 NLRB 911, 919 (1961); NLRB v. Robinson Freight Lines, 251 F.2d 639, 641-642 (6th Cir. 1958). The judge also concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by uni- laterally implementing the physical examination and testing requirements in October or November 1980, and he reasoned that this was an additional basis for finding that the Respondent had not made valid offers of reinstatement to the strikers.12 For the reasons set forth below, we do not agree that, under the circumstances here, the conditions contained in the reinstatement offers violated Sec- tion 8(a)(3) of the Act, or that the Respondent had imposed the physical examination and testing re- quirements unilaterally, that it, therefore, violated Section 8(a)(5) and (1) of the Act, and that includ- ing these requirements as a condition to reinstate- ment invalidated the offers.13 The judge's 8(a)(3) and (1) finding is in conflict with his finding that, since October or November 1980, the Respondent had been "using substantially the same procedures" as those outlined in its pro- posals for sections 9.7, 9.8, and 9.9 of the new col- lective-bargaining agreement, i.e., requirements that any employee who has been off work for more than 3 months take a physical examination at the Respondent's expense prior to returning to duty 12 This allegation was not included in the complaint, but counsel for the General Counsel argued in his posthearing brief that the matter had actually been litigated and the judge so found. For the reasons set forth below, we do not agree with the judge that a fording may be made on this allegation. '3 Nor do we agree with the judge that the Respondent 's reference in the offers to strikers who "may be entitled to reinstatement" implied the existence of conditions other than those that we ford, infra, were lawfully imposed. Although the offers of reinstatement were therefore valid ones, we agree with the judge that the Respondent failed in its obligation to offer immediate reinstatement to the strikers on their unconditional offer to return to work. Accordingly, we shall provide that the Respondent make whole the srikers listed in App . A of the judge's decision for any loss of earnings and other benefits resulting from the delay in offering them reinstatement. 1025 and provide a current Department of Motor Vehi- cles printout of his or her driving record, and that any employee who has been off work for more than 30 days take tests to be requalified on equip- ment for which he or she was qualified prior to the time off. Because these requirements on their face do not apply only to strikers and because the judge found (with adequate support in the record) that they had in fact been implemented in the fall of 1980, when the Respondent was operating with re- placements or nonstriking employees, we cannot agree that the Respondent's attempt to impose them on the returning strikers (all of whom had been off work for more than 3 months) amounted to treating the strikers as if they were new employ- ees. With respect to the supposed requirement that the strikers fill out complete new job applications, we do not ford that the testimony of two employ- ees whom the judge credited is sufficient to carry the General Counsel's burden of showing that the Respondent was treating the strikers as new em- ployees. The Respondent's comptroller, Ellen Har- rison, testified without contradiction that in re- viewing the Respondent's personnel files in the fall of 1980 she discovered that the files needed updat- ing as to such matters as current addresses, records of on-the-job injuries, and identity of persons to notify in case of emergency. She also testified that in order to secure such information from the re- turning strikers after the Union made the uncondi- tional offer to return on their behalf, she asked them to fill out certain parts of job application forms in order to make sure all personnel informa- tion was current. The judge relied on the testimony of two returning strikers, Mary Mason and Jose Tovar, in concluding that the strikers were re- quired to fill out applications as if they were new employees. But Tovar's testimony was vague-he recalled being told to fill out some forms-"but I don't recall what they were"-and he recalls filling out "the questions"-none of which he described. According to Mason's testimony, the strikers were specifically instructed by Harrison that they did not need to fill out the entire application form, al- though Flo Ybarra, the Respondent's director of safety and training, later told them to fill out the entire forms. We cannot conclude, on the basis of all the evidence, including the testimony credited by the judge, that the conflicting instructions as to the application forms amounted to an effort to treat the strikers as new employees, especially in view of the fact that Harrison was the one in charge of processing the returning strikers and was Ybarra's superior. 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This case is therefore unlike the authorities on which the judge relied, in which the evidence showed that strikers were treated in a way that only new employees were treated.14 The issue here of new conditions applied to strikers resembles in- stead the physical examination issue in Lone Star Industries, 279 NLRB 550 (1986), affd. in part and vacated in part 813 F.2d 472 (D.C. Cir. 1987), in which the Board found that the employer did not violate Section 8(a)(3) of the Act by imposing a physical examination requirement on returning strikers since the policy applied to all employees. The Board acknowledged that the employer had not yet administered it to all the replacements and early returning strikers, but it concluded that delays and imperfections in accomplishing the full- scale implementation did not mandate a finding that the employer was requiring the examination only of strikers. Of course, if it is shown that an ostensibly across-the-board policy in fact discriminates against strikers in a significant way and the employer has no counterbalancing substantial business justifica- tion, we will find a violation of Section 8(a)(3) under the theory of NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967). Thus, in Lone Star, the Board found a violation in the employer's new policy of totally eliminating seniority as a basis for assigning work, including overtime. The policy economically injured the strikers, nearly all whom had longer time on the job than any of the replace- ment employees, and the respondent failed to put on any business justification defense at all for the policy. Under those circumstances, an inference of antiunion motive was permissible. Here, however, the General Counsel has not adduced evidence showing that the conditions in question would sig- nificantly disadvantage strikers in comparison with replacements or nonstrikers, and given the evi- dence of nondiscriminatory business purposes served by the requirements-considerations of safety and completeness of personnel information- we cannot conclude that the balance under Great Dane is properly struck so as to permit an infer- ence of discriminatory motive.15 '* Craw & Son, 244 NLRB 241, 242 (1979), Standard Materials, supra, NLRB v. Robinson Freight Lines, supra 15 The judge's factual findings confirm the Respondent 's account that the requirements for testing , medical examinations, and provision of De- partment of Motor Vehicles printouts were instituted around the time that the safety representatative of the United Bus Owners Association visited the Respondent and made recommendations concerning changes in procedures at least 5 months before the strike ended In addition, the Union apparently regarded the new procedures as acceptable as general conditions of employment, apart from the question of striker return, be- cause (with the exception of the personnel file updates) they were includ- ed in the contract that the Union insisted represented the parties ' entire agreement For reasons set out below , however, we do not find that the Union had agreed to them when first implemented or that it had agreed We further find, contrary to the judge, that the Respondent did not violate Section 8(a)(5) and (1) of the Act by unilaterally implementing the physi- cal examination and testing requirements in Octo- ber and November 1980 and imposing these condi- tions on the strikers following their unconditional offer to return. As noted above at footnote 12, this allegation was not included in the complaint, but the judge, in response to the General Counsel's posthearing brief, found that the matter had been fully litigated. This conclusion does not adequately acknowledge the Respondent's argument that the General Counsel's allegation that the Respondent unlawfully refused to execute the agreement pur- portedly reached on April 3, 1981, including the conditions contained in sections 9.7, 9.8, and 9.9, conflicts with a theory that these conditions were unilaterally implemented. Moreover, the Respond- ent presented evidence regarding its application of the conditions to employees as early as the fall of 1980 to rebut the General Counsel's theory that these same conditions were applied discriminatorily to returning strikers. We can assume that, had the Respondent known of the unilateral change allega- tion, it would have presented its defense different- ly. Therefore, the Respondent did not receive ade- quate notice of a material issue, and the parties did not fully and fairly litigate the unilateral change al- legation. Castaways Hotel, 284 NLRB 612 (1987). Accord: Collateral Control Corp., 288 NLRB 308 (1988). See also Electrical Workers IBEW Local 1186 (Pacific Electrical), 264 NLRB 712 fn. 3 (1982), enfd. mem. 113 LRRM 3816 (9th Cir. 1983). 2. The resignations We adopt the judge's determination that strikers Carr, Dredden, and Marks resigned their employ- ment; that Banning, Conyer, Doty, Ozgundez, Planje, and Reid did not; and that the Respondent is, therefore, not entitled to deny the latter six em- ployees reinstatement on that ground. We also agree with the judge's conclusion that Umphreys resigned. Contrary to the judge, however, we, therefore, conclude that the Respondent was not obligated to offer her reinstatement, and according- ly find it unnecessary to pass on his findings with respect to her alleged misconduct. 3. The misconduct issues In considering the circumstances involved with respect to the individual strikers denied reinstate- ment, the judge properly relied on current Board to them if they were not part of a bargaining agreement that the Re- spondent would be willing to execute AZTEC BUS LINES law at the time of his decision. Thus, in assessing particular types or instances of misconduct, he relied largely on the tests and standards set forth in such cases as Coronet Casuals, 207 NLRB 304 (1973); W. C McQuaide, Inc., 220 NLRB 593 (1975); A. Duie Pyle, Inc., 263 NLRB 744 (1982); Georgia Kraft Co., 258 NLRB 908 (1981); and MP Industries, 227 NLRB 1709 (1977). On February 22, 1984, in Clear Pine Mouldings, 268 NLRB 1044, the Board reevaluated the appro- priate standard for determining the reinstatement rights of employees who engaged in strike-related misconduct. In so doing, the Board adopted the standard formulated by the United States Court of Appeals for the Third Circuit in NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527 (1977), and over- ruled prior Board decisions for the extent they were inconsistent. In Clear Pine, the Board an- nounced that it would apply the following test for determining whether strike misconduct directed at fellow employees justifies an employer's refusal to reinstate a striker: "whether the misconduct is such that, under the circumstances existing, it may rea- sonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." (Clear Pine at 1046.) The Board also stated that it would apply an analogous standard to the assess- ment of strikers' verbal and nonverbal conduct di- rected against persons who do not enjoy the pro- tection of Section 7 of the Act. Id. at 1046 fn. 14 (plurality opinion). Id. at 1048 (concurring opin- ion). Thus, misconduct aimed at managers or other nonemployees may also be grounds for denying re- instatement. The plurality in Clear Pine further rejected the prior practice in cases involving unfair labor prac- tice strikes of balancing the severity of the employ- er's unfair labor practices (that may have provoked the strike) against the gravity of the striker miscon- duct.16 In the instant case, the judge utilized this balancing test in assessing whether the conduct of certain individuals warranted a denial of reinstate- ment because of his earlier conclusion that the Re- spondent had bargained in bad faith following the commencement of the strike and that the strikers had thus become unfair labor practice strikers. As set forth above, we have dismissed the main allega- tions of bad-faith bargaining subsequent to the commencement of the strike, and the violations that we have found came to the strikers' notice only after they had engaged in the misconduct for 16 Member Babson agrees with the plurality opinion in Clear Pine with respect to its rejection of such a balancing test . Id. at 1047 and fns. 24 and 25 . Nevertheless, he would consider immediate provocation in judg- ing whether a particular action amounts to misconduct that would justify denying reinstatement. 1027 which they were denied reinstatement. According- ly, the balancing test referred to above would not be appropriate here. Were we simply to apply the stricter Clear Pine standard to each contested refusal to reinstate on the ground of strike misconduct, we would find as disqualifying misconduct some types of behavior that the judge believed he could not so find under Board law as it then stood. We cannot resolve the issues simply on that basis, however, because we must also consider the Union's argument, made in its exceptions, that the judge did not correctly ana- lyze the evidence supporting the Union's claim that a comparison of the Respondent's treatment of nonstrikers or replacements who engaged in mis- conduct with the Respondent's treatment of strik- ers shows a clear pattern of disparate treatment based on participation in the strike. Although an employer does not violate the Act by refusing to reinstate strikers who have engaged in serious mis- conduct, it is not free to apply a double standard. It may not knowingly tolerate behavior by non- strikers or replacements that is at least as serious as, or more serious than, conduct of strikers that the employer is relying on to deny reinstatement to jobs. Garrett Railroad Car & Equipment v. NLRB, 683 F.2d 731, 740 (3d Cir. 1982) (applying the prin- ciple but upholding the refusal to reinstate because employer lacked knowledge of nonstriker involve- ment in misconduct). The Union contends that the Respondent applied such a double standard here and that, as a result, none of the denials of rein- statement is lawful. We agree in part. As our analy- sis of the evidence below reveals, we find that some of the nonstrikers engaged in misconduct that was at least as serious as some of the striker mis- conduct; yet, the Respondent did not even suspend those nonstrikers for the actions in question, let alone discharge them. The refusals to reinstate strikers for conduct of comparable or lesser seri- ousness are discriminatory and therefore violate Section 8(a)(3) and (1) of the Act. We are persuad- ed, however, that some of the strikers engaged in conduct that was more serious in its totality than the nonstriker conduct at issue. Those refusals to reinstate are not unlawful because they do not rep- resent disparate treatment of comparable cases. Before detailing the evidence concerning non- striker misconduct, we should preliminarily note testimony by the Respondent's president, Zemba, and its comptroller, Harrison, regarding the Re- spondent's method for compiling and reviewing in- formation on which to base decisions whether to deny reinstatement on the basis of strike miscon- duct. Logs were kept by the Respondent's dis- patchers and by security guards employed by 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rogers Police Patrol who were working under contract for the Respondent. Harrison reviewed these logs and transferred what she regarded as rel- evant information into a card index with each strik- er separately listed. She orally conveyed informa- tion from the logs to Zemba (who directly re- viewed only selected passages). Based on that in- formation and on direct observation of some strike events, Zemba, Harrison, and the Respondent's counsel made the decisions regarding whom to re- instate. The logs were not in fact limited to descriptions of striker misconduct. The guards and dispatchers had also recorded some observations of nonstriker misconduct, but Zemba's response to a question whether he ever reviewed the logs' reports of mis- conduct by striker replacements was "not particu- larly"; and although Harrison had reviewed the logs in their entirety, she did not indicate that the accounts of nonstriker misconduct were included in her report to Zemba about picket line events rele- vant to reinstatement decisions. According to the security police log, on October 24, 1980, nonstriking employee David Smart re- sponded to a female picketer's hitting the side of his car with a sign by stopping his car, getting out, grabbing her by the neck and hair, punching her down to the ground, and then hitting her head against the pavement. (This incident was confirmed at trial by the testimony of the victim, Linda McQueen, who testified that she had swatted the car with her picket sign because it would have hit the picketers had they not stepped quickly back.) According to the dispatch log for September 27, 1980, nonstriking employee George Reese was re- ported to have responded to the throwing of eggs at his car by making a U-turn, returning to the bus lot driveway, and threatening the picketers with a knife.17 Finally, an incident on October 5, 1980, concerning nonstriking employee James Lombardi was not only mentioned in the logs but also specifi- cally came to the Respondent's attention because, as the dispatcher, Tom Ingersoll, recorded, the police came to arrest Lombardi for "three counts of assault with a deadly weapon (his van)" and In- gersoll left to go down to jail and bail Lombardi out.18 The evidence at the hearing shows that 17 No testimony about this reported incident was given at the hearing below. Reese appeared as a witness but was asked only about an incident in which he stopped his car and responded to a picketer 's threatening remark by showing the picketer a tire iron he was carrying in the front seat of his car. There is, therefore , no credible evidence that Reese actu- ally brandished the knife, but the report was in logs compiled and re- viewed by the Respondent 's agents and, as noted below, there is no evi- dence that Reese's supervisors even questioned him about the incident is The record indicates that the Respondent's transit coordinator, David Schultz, put up the $300 for Lombardi's bail, and that this was Lombardi exited from the bus lot, swerved his van toward the picketers, drove down the street, turned around, came back at a very fast speed, and veered toward the picketers again, barely missing them as he went past. Zemba was questioned about whether these or any other nonstriker had been disciplined for such misconduct, and although he testified that his su- pervisors had advised employees not to drive too fast going into or out of the bus lot, he had no defi- nite knowledge of any specific disciplinary meas- ures. Both he and Harrison testified that Smart had been discharged at some time after the beating inci- dent, but they produced no evidence, either testi- monial or documentary, that the discharge had anything to do with that incident. Harrison testified that she had been upset by Smart's conduct in that incident and that Transit Coordinator Schultz might have "spoken to" Smart. Harrison and Zemba both testified that Lombardi had been given a disciplinary warning. Zemba, however, conceded that when such warnings were memorialized they were placed in the Respondent's personnel files. Although the Respondent's counsel indicated he would produce evidence of such warnings if it ex- isted, no such evidence was ever proffered. No witness tesified to any investigation by the Re- spondent of the report concerning Reese's alleged brandishing of the knife.19 As noted above, we do not agree with the Union that this evidence of disparate treatment is grounds for finding that all the refusals to reinstate strikers were unlawful. Certainly the Smart and Lombardi incidents were serious, because they represented, in the former case, a direct physical assaualt on an- other person and, in the latter, conduct that came perilously and deliberately close to vehicular as- sault on several people . 20 But it is also the case that some of the strikers not only engaged in as- saultive conduct but also engaged in other kinds of misconduct as well, in some cases repeatedly. Thus, strikers Wallace Leonard, Alan Shelton, Phil Burkhart, Patricia Fowler, Steve Ondrechon, and Agnes Pangilinan either swung at other people treated as a loan that Lombardi was expected ultimately to repay to the Respondent 19 In considering the disparate treatment issue, we are not relying on testimony that another nonstriking employee, Orville Swadner, sprayed ammoma into the face of at least one picketer Charges were brought against Swadner for that incident, and his uncontradicted testimony is that he was acquitted on grounds of self-defense. 20 We recognize that both Smart's and Lombardi's actions were pro- voked by striker misconduct, but the reactions so exceeded the provoca- tions that these incidents cannot be discounted as self-defense or other- wise justifiable responses. Certainly given the standards the Respondent was applying to the strikers, it is apparent that had these men been strik- ers the Respondent would have deemed the incidents to be grounds for denying reinstatement. AZTEC BUS LINES 1029 with sticks or thrust the sticks at others' faces, and in addition engaged in other acts of misconduct de- tailed by the judge. (In Pangilinan's case, the stick was jabbed at the driver of a bus while it was in motion; in Ondrechon's case the stick had been sharpened at the end.) Strikers Don Lilly, John Kipple, Valerie Mendoza, and Linda Peckron threw liquids or lighted cigarettes through bus or car windows into the faces of nonstrikers who were driving vehicles at the time and, in addition, engaged in other acts of misconduct .2 1 Bob Baker participated in much of Lilly's misconduct, includ- ing a dangerous incident in which the two drove their motorcycles on either side of a bus whose driver was taking a driving test in order to harass the driver while he was driving down the high- way. Striker Barbara McPheron was a prime actor in an incident that the judge aptly described as "one of the most serious and dangerous acts of miscon- duct in the entire strike"-throwing eggs through a car window at the head of the Respondent's dis- patcher while he was driving along a road with his family at a speed of 25-30 miles an hour. A colli- sion with the car ahead of him was barely avoided. Striker Connie Murphy was found by the judge to have engaged in "extensive and significant miscon- duct," which included egg throwing at moving ve- hicles so as to impair the drivers' vision, blocking a bus with her van and then, when required by police to move her van, backing it away in a manner so as to come close to running down Zemba and (together with striker Michael Kirkpat- rick) engaging in a car chase after a car carrying Zemba, Harrison, and another person and follow- ing up that chase the next day with a threat: "We didn't get you that time; we'll get you next time." Striker Brenda Meyers threw a rock at the head of a nonstriker in addition to damaging vehicles and making threats of violence. Striker Norman Amador, during a fray with two nonstrikers, at- tempted to choke a female nonstriker while she was trying to radio from her bus for help. The judge found that Amador was one of "the most active strikers . . . committing acts of miscon- duct," which also included throwing eggs at vehi- cles, rocking vehicles, and making threats of vio- lence. Striker Michael Kirkpatrick, in addition to participating in the car chase with Murphy, noted 21 Lilly threw a hot liquid on the driver; his other numerous acts of misconduct included blocking vehicles, threats of violence, rocking Zemba's car, spitting on a nonstriker, damaging a bus, and participating with striker Baker in the highway incident described below. Peckron threw a hot liquid on a driver and also slammed a car door on a non- striker's leg, threw eggs and a rock at vehicles, and blocked vehicles. Mendoza threw lighted cigarettes through windows at drivers while the vehicles were in motion and, in addition, made physical threats and van- dalized parked cars. above, used a slingshot to launch marbles at the head of the Respondent's transit coordinator, Schultz, and also threw rocks on more than one occasion. Finally the assaultive conduct of striker Roy Stoker, whom the judge correctly described as "guilty of perhaps more major violent incidents than any other striker," amply warrants a fording that he was not entitled to reinstatement. In sum, the totality of the misconduct engaged in by each of the foregoing 17 strikers was such that their cases are not comparable to those of the non- strikers discussed above whom the Respondent failed to discipline. In the case of the other strikers, however, even though we would ford that many could properly have been denied reinstatement had the Respond- ent been acting evenhandedly with respect to all employees on both sides of the strike, we cannot conclude that the Respondent can lawfully deny them reinstatement in the face of its failure to disci- pline Smart or Lombardi or to make thorough in- quiries into apparent misconduct by other non- strikers. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All coach operators, maintenance employees, and student drivers constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since 1976 the Union has been and continues to be the representative for purposes of collective bargaining of the employees in the above-described unit. 5. By unilaterally changing employees' health and accident insurance plan, without notification to or affording an opportunity to bargain with the Union, the Respondent has engaged in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 6. By telling an employee that the Respondent would not negotiate with the Union unless certain union leaders were replaced and picketers stopped harassing the Respondent's employees, by advising an employee that anyone picketing at the time an act of misconduct occurred would not be returned to work after the strike was terminated, and by telling employees that the Union was "finished" and that returning strikers would be offered only part-time jobs, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) and Section 2(6) and (7) of the Act. 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7. Strikers Dana Banning, Darryl Conyer, Thomas Doty, Suhley Ozgundez, Abraham Planje, and Cheryl Reid did not resign their employment from the Respondent and the Respondent was not entitled to refuse to offer them reinstatement on that ground following the termination of the strike. 8. Strikers Leslie Carr, Bert Dredden, Gerald Marks, and Jean Umphreys resigned their employ- ment with the Respondent and are thus not entitled to an offer of reinstatement. 9. The following strikers are not entitled to offers of reinstatement because of their strike mis- conduct: Norman Amador Robert Baker Patricia Fowler Wallace Leonard Donald Lilly Connie Murphy Stephen Ondrechon Linda Peckron Roy Stoker Barbara McPheron Phil Burkhart John Kipple Michael Kirkpatrick Valerie Mendoza Brenda Myers Agnes Pangilinan Alan Shelton 10. By failing and refusing to reinstate the fol- lowing strikers the Respondent has violated Sec- tion 8(a)(1) and (3) of the Act: Angel Huezo Ray Lindemann Linda McQueen Janel Bock James Fenderson Kieron Moore Ronald Norman Thomas Reynolds Susan Silvestri Steven Tom Karen Balding Suhley Ozgundez Dana Banning Abraham Planje Donna Bozick Cheryl Reid John Chasteen Karen Sloane Darryl Conyer Hubert Robinson Thomas Doty George Sprague Glen Klock Michael Doering Colleen Jellison Inez Camacho Lester Wallace Stanley Wright Harline George Phillip Mulligan Marian Osborne Julia Richard Brad Steckmesser Vasco Walter Clark Adams Nancy Alferos Fred Franz Donna Friege Eula Boothe Joe Mountain Jan Corona Frank Patton Michael Smith Hernando Suanico Dale Fox Stuart Grossman Judy Tolwitzke 11. By failing timely to reinstate the strikers listed in Appendix A of the judge's decision, the Respondent has violated Section 8(a)(1) and (3) of the Act. 12. The Respondent has not otherwise violated Section 8(a)(5) of the Act and has not committed other independent violations of Section 8(a)(1) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including the posting of an appropriate notice to employees. Inasmuch as the Respondent unlaw- fully refused to reinstate strikers following their un- conditional offer to return to work following the strike'22 we shall order the Respondent to offer these employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prej- udice to their seniority or other rights and privi- leges. The Respondent shall further be ordered to make these employees (and the employees listed in App. A of the judge's decision) whole for any loss of earnings and other benefits they may have suf- fered as a result of the discrimination against them by payment to them of the amount they would have earned from April 4, 1981,23 until the date of 22 Some of the strikers were employed by the Respondent primarily or exclusively as schoolbus drivers. The record shows the State of Califor- nia revised its licensing requirements for driving schoolbuses about June 1980, shortly before the onset of the strike The evidence further indi- cates that some striking drivers were not in compliance with the new state requirements and/or lacked renewal certificates even under the old regulations, and that the Respondent notified the Union of these needs. We shall leave to the compliance stage of this proceeding the determina- tion of which, if any, striking drivers were so affected, and the periods of time that the drivers were unavailable to work because of failure to meet these requirements. See Standard Materials, 237 NLRB 1136, 1146 fn. 23 (1978). 22 The judge recommended that backpay be computed as of April 4, 1981, the day following the delivery by messenger of the letter contain- mg the strikers' unconditional offer to return to work. He relied on sever- al separate grounds for using this date and thus not extending to the Re- spondent the 5-day grace period normally accorded employers for the re- instatement of unfair labor practice strikers. See Drug Package Co, 228 NLRB 108, 113-114 (1977) We have reversed the judge in his classifica- tion of the strike as an unfair labor practice strike , and we have further reversed his finding that the Respondent attached unlawful conditions to its response to the strikers' unconditional offer to return. Nonetheless, we agree that April 4 is the proper date for commencement of the backpay period for the strikers covered by our Order, who were not shown to have been permanently replaced. Even allowing for the fact that an em- ployer does not generally incur backpay liability for not immediately firing a temporary replacement in order to reinstate an economic striker who has offered to return, there is no reason to give the benefit of any "grace period" to an employer which, like the Respondent, (1) made no positive response at all until April 21, more than 2 weeks after the strik- ers' offer to return, and (2) who, in the case of strikers discussed in secs C,2, and C, 3, of our decision, unlawfully denied reinstatement. See Car- penter Sprinkler Corp., 238 NLRB 974, 976 ( 1978), enf. denied in part on other grounds 605 F 2d 60, 68 (2d Cir 1979) (no grace period appropri- ate for employer who "unduly delays" in accepting or who "rejects" an unfair labor practice striker's unconditional offer to return) AZTEC BUS LINES 1031 the Respondent's offer of reinstatement, less net in- terim earnings, in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), to which shall be added interest, to be computed in the manner de- scribed in New Horizons for the Retarded.24 We shall further order the Respondent to remove from its files any reference to its unlawful refusal to rein- state these employees. Additionally, we shall order the Respondent to make whole all its employees for any losses they may have suffered as a result of the unilateral change in health benefits plans. Finally, we note that the judge recommended a broad cease-and-desist provision ordering the Re- spondent to cease from violating the Act "in any other manner." Inasmuch as we have reversed cer- tain of the judge's findings that the Respondent violated the Act in various respects, we further find that the broad order is not warranted in the circumstances of this case. Accordingly, we shall issue our usual cease-and-desist order requiring the Respondent to refrain from violating the Act in "any like or related" manner. ORDER The National Labor Relations Board orders that the Respondent, Aztec Bus Lines, Inc., San Diego, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Unilaterally changing employees' health and accident insurance plan, without notification to or affording an opportunity to bargain with the Union. (b) Telling employees that the Respondent would not negotiate with the Union unless certain union leaders were replaced and picketers stopped harassing the Respondent's employees, advising employees that anyone picketing at the time an act of misconduct occurred would not be returned to work after the strike was terminated, and telling employees that the Union was "finished" and that returning strikers would be offered only part-time jobs. (c) Refusing to offer reinstatement to strikers Dana Banning, Darryl Conyer, Thomas Doty, Suhley Ozgundez, Abraham Planje, and Cheryl Reid on grounds that they resigned their employ- ment from the Respondent. (d) Refusing to offer reinstatement to strikers Karen Balding, Donna Bozick, John Chasteen, 24 In accordance with our decision in 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.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). Dale Fox, Stuart Grossman, Glen Klock, Karen Sloane, Michael Smith, and Hernando Suanico on grounds of asserted misconduct during the strike, or strikers Clark Adams, Nancy Alferos, Eula Boothe, Jan Corona, Fred Franz, Donna Friege, Joe Mountain, Frank Patton, Hubert Robinson, George Sprague, Judy Tolwitzke, Michael Doer- ing, Angel Huezo, Colleen Jellison, Ray Linde- mann, - Linda McQueen, Lester Wallace, Janel Bock, Inez Camacho, James Fenderson, Harline George, Kieron Moore, Phillip Mulligan, Ronald Norman, Marian Osborne, Thomas Reynolds, Julia Richard, Susan Silvestri, Brad Steckmesser, Steven Tom, Vasco Walter, and Stanley Wright on grounds of misconduct during the strike. (e) Failing timely to offer reinstatement to the strikers listed in Appendix A of the judge's deci- sion. (I) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer the strikers listed in subparagraphs 1(c) and (a), above, immediate and full reinstatement 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 privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci- sion. (b) Make whole the strikers listed in Appendix A of the judge's decision in the manner set forth in the remedy section of the decision. (c) Remove from its files any reference to the re- fusal to reinstate these former strikers, and notify them in writing that this has been done and that the refusal of reinstatement will not be used as a basis for future personnel actions against them. (d) On request, bargain with the Union as to the selection of an insurance carrier for an employee health and accident insurance plan and, if an under- standing is reached, embody the understanding in a signed agreement. (e) Make whole all employees for any losses they may have suffered as a result of the unilateral change in health benefit plans. (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD amount of backpay due under the terms of this Order. (g) Post at its places of business in and around San Diego and Chula Vista, California, copies of the attached notice marked "Appendix C."25 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent 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 Respondent 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 Respondent has taken to comply. IT IS FURTHER ORDERED that all allegations of the complaint not found above are dismissed. zb 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." APPENDIX C teen, Dale Fox, Stuart Grossman, Glen Klock, Karen Sloane, Michael Smith, Hernando Suanico, Clark Adams, Nancy Alferos, Eula Boothe, Jan Corona, Fred Franz, Donna Friege, Joe Mountain, Frank Patton, Hubert Robinson, George Sprague, Judy Tolwitzke, Michael Doering, Angel Huezo, Colleen Jellison, Ray Lindemann, Linda McQueen, Lester Wallace, Janel Bock, Inez Camacho, James Fenderson, Harline George, Kieron Moore, Phillip Mulligan, Ronald Norman, Marian Osborne, Thomas Reynolds, Julia Richard, Susan Silvestri, Brad Steckmesser, Steven Tom, Vasco Walter, and Stanley Wright. WE WILL NOT fail to timely offer reinstatement to the following strikers: Balch, Elsie Beazley, Robert Chavez, Karen Clarin, Benjamin Cordua, Harney Edwards, Janet Esbri, Mario George, Ivy Gress, Phillip Harvey, David Horn, Adelia McConnell, James Macklin, Diane 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 unilaterally change employees' health and accident insurance plan, without notifi- cation to or affording an opportunity to bargain with the Union. WE WILL NOT tell employees that we will not negotiate with the Union unless certain union lead- ers are replaced or unless picketers stop harassing other employees, WE WILL NOT advise employees that anyone picketing at the time an act of miscon- duct occurs will not be returned to work after the strike ends, and WE WILL NOT tell employees that the Union is "finished" and that returning strikers will be offered only part-time jobs. WE WILL NOT refuse to offer reinstatement to strikers Dana Banning, Darryl Conyer, Thomas Doty, Suhley Ozgundez, Abraham Planje, and Cheryl Reid on grounds that they resigned their employment. WE WILL NOT refuse to offer reinstatement to strikers Karen Balding, Donna Bozick, John Chas- Morgan, Jo Ann Nekoui, Atta Piper, Donald Pyatt, Wendell Rowe, Claude Rudat, Christine Rudy, Shirley Schwartz, Michael Sims, Doris Slack, Paul Stewart, Lena Thirtle, Cheri Tovar, Jose Mason, Mary Young, Marian 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 strikers Karen Balding, Dana Banning, Donna Bozick, John Chasteen, Darryl Conyer, Thomas Doty, Dale Fox, Stuart Gross- man, Glen Klock, Suhley Ozgundez, Abraham Planje, Cheryl Reid, Karen Sloane, Michael Smith, Hernando Suanico, Clark Adams, Nancy Alferos, Eula Boothe, Jan Corona, Fred Franz, Donna Friege, Joe Mountain, Frank Patton, Hubert Rob- inson, George Sprague, Judy Tolwitzke, Michael Doering, Angel Huezo, Colleen Jellison, Ray Lin- demann, Linda McQueen, Lester Wallace, Janel Bock, Inez Camacho, James Fenderson, Harline George, Kieron Moore, Phillip Mulligan, Ronald Norman, Marian Osborne, Thomas Reynolds, Julia Richard, Susan Silvestri, Brad Steckmesser, Steven Tom, Vasco Walter, and Stanley Wright immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings and other benefits they may have suffered by reason of our discrimination AZTEC BUS LINES against them and WE WILL make whole employees for any losses they suffered as a result of our uni- lateral change in health benefit plans and WE WILL make whole the following strikers for our failure to timely offer them reinstatement: Balch, Elsie Beazley, Robert Chavez, Karen Clarin, Benjamin Cordua, Harney Edwards, Janet Esbri, Mario George, Ivy Gress, Phillip Harvey, David Horn, Adelia McConnell, James Morgan, Jo Ann Nekoui, Atta Piper, Donald Pyatt, Wendell Rowe, Claude Rudat, Christine Rudy, Shirley Schwartz, Michael Sims, Doris Slack, Paul Stewart, Lena Thirtle, Cheri Macklin, Diane Tovar, Jose Mason, Mary Young, Marian WE WILL notify those former strikers named above that we have removed from our files any reference to our refusal to reinstate them, and that that refusal to reinstate will not be used against them in any way. WE WILL, on request, bargain with the Union as to the selection of an insurance carrier for an em- ployee health and accident insurance plan and, if an understanding is reached, embody the under- standing in a signed agreement. AZTEC BUS LINES, INC. Robert R. Petering, Esq., for the General Counsel. David B. Geerdes and Robert A. Levy, Esqs. (Gray, Cary, Ames & Freye), of San Diego, California, for the Re- spondent. Richard D. Prochazka and Linda Madden Ford, Esgs. (Domnitz, Prochazka and Levine), of San Diego, Cali- fornia, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at San Diego, California, on 43 trial days between October 5, 1981, and February 22, 1982,1 pursuant to a fourth order consolidating cases, fourth consolidated amended complaint, and notice of hearing issued by the Regional Director for the National Labor Relations Board for Region 21, on September 16, 1981, and that is based on charges filed by San Diego AFL-CIO Bus Drivers Local Division 1309 of the Amalgamated Transit Union (the Union) on September 2 (Case 21-CA-19497); September 11 (Case 21-CA- 19542); April 24, 1981 (amended charge Case 21-CA- 20162); April 16, 1981 (Case 21-CA-20182); June 23, ' All dates refer to 1980 unless otherwise indicated. 1033 1981 (amended charge 21-CA-20214); June 30, 1981 (Case 21-CA-20405); and August 10, 1981 (Case 21-CA- 20536). The complaint alleges that Aztec Bus Lines, Inc. (Respondent) has engaged in certain violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). Issues2 Did Respondent violate the Act by (a) unilaterally changing its health and accident insurance plan covering unit employees; (b) negotiating with the Union both prior to and after commencement of the strike on a new collective-bargaining agreement in bad faith; (c) reaching agreement with the Union on a new collective-bargain- ing agreement, but thereafter failing and refusing to exe- cute the agreement; (d) refusing without good reason to reinstate unconditionally strikers who had made an un- conditional offer to return to work, to their former, or substantially equivalent, positions of employment; and/or (e) committing the above and other actions, the result of which was to interfere with, restrain, and coerce em- ployees in the exercise of the rights guaranteed them by Section 7 of the 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. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Charging Party, and Respondent.3 On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits that it is a California corporation that operates a transit, school, and charter bus and trans- portation business with its main facility located in San Diego, California. It further admits that during the past year, in the course and conduct of its business that its gross revenues exceeded $500,000, and that annually it purchases and receives goods and products valued in excess of $50,000 from suppliers located within the State of California, each of which, in turn, purchase those same goods and products directly from suppliers located outside the State of California. Accordingly it admits, and I find, that it is an employer engaged in commerce 2 The General Counsel's brief was received by the Division of Judges on June 3, 1982, 2 days late. From markings on the envelope, it was clear that the United States Post Office had misdelivered the brief to another agency. I find that the brief was timely and will give it due consideration. ' Two additional issues raised at hearing concern Respondent 's motion for a continuance and motion of Respondent's employee, Gerald W. (Bill) Hokstad, a nonstriker, to intervene in the proceedings , on behalf of himself and other nonstrikers. As to the former issue, I denied the motion after extensive argument. As to the latter, I first denied, then later grant- ed the motion of Hokstad to intervene. The General Counsel took a spe- cial appeal and the Board reversed me. Hokstad then filed a motion asking for reconsideration. The Board again denied the motion on Octo- ber 27, 1981, on the grounds that Hokstad lacked standing to intervene and that his petition lacked merit. (ALJ Exhs. 1-5.) I will not further dis- cuss these issues in this case as they present no matters for me to decide. 1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that San Diego AFL- CIO Bus Drivers Local Division 1309 of the Amalga- mated Transit Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES4 A. Background In September 1979, Augustus C. Zemba purchased the stock of Respondent corporation on an installment sales contract basis. Currently the president of Respondent, Zemba, is a central figure in this case. To better under- stand the complex issues raised, I begin with some brief background on both Zemba and Respondent before Sep- tember 1979. At the time of hearing, Zemba was 46 years of age. His prior employment was in the field of transportation and in various business positions with different California school districts. In his prior jobs, Zemba had limited ex- perience with unions involving negotiating contracts, but not with processing grievances to arbitration. Before Zemba took over, Respondent was owned by Leonard Zlotoff, who even after the sale continued as a director of Respondent and to whom Zemba was making regular payments pursuant to the contract of sale. Zlo- toff still owns the real property on which Respondent's bus yard is located and leases the premises to Zemba. Another party owns Respondent's accounting office that is located near the bus yard. This too is leased to Re- spondent. Zlotoff and members of his family also retain interests in some or all Respondent's rolling stock. Aztec Bus Lines, Inc. has existed as a business entity at least since 1972 and possibly before that. In late 1976, the Union won an election to represent Respondent's busdrivers and mechanics and was later certified as the employees' collective-bargaining representative. In July 1978, the Union and Respondent, by its then-owner, Zlo- toff, negotiated and executed a collective-bargaining agreement, which was effective from May 24, 1978, to June 30. (G.C. Exh. 2.) Within a day or two after Zemba assumed control of Respondent, he met with Donald Randall, then president of the Local Union and lead negotiator for the prior col- lective-bargaining agreement between Respondent and the Union. Zemba assured Randall that he was aware of the existing collective-bargaining agreement and would honor it. Zemba did, however, request some time to become familiar with Respondent before starting detailed discussions with the Union. Early on, however, controversy erupted between Zemba and union officials. Some of this controversy con- 4 In reciting the facts and deciding the issues of this case , I will be mindful of the Board 's criticism of an administrative law judge for draft- mg an inordinately long decision in a case similar to the present case Harowe Servo Controls, 250 NLRB 958, 959 (1980) There, the hearing lasted 46 hearing days and the printed decision extended from p. 967 to p 1126 cerned the processing of several grievances that had been filed before Zemba became president of Respond- ent. Zemba was aware of the grievances before he pur- chased Respondent. These grievances related to disci- pline for accidents caused by alleged driver negligence and other matters relating to working conditions. Other grievances were filed after Zemba took over. In general, Zemba took a hard line on the entire grievance proce- dure. For example, Zemba testified that on the very first day he took over, he decided that Chief Shop Steward Jan Corona would no longer have free access to compa- ny personnel files as she had had under the prior owner- ship. Rather, Zemba ordered that she had to request any employee files in writing, then the subject employee had to give his/her consent, then Corona had to review the file in the presence of office personnel.5 Besides instituting new procedures for the gathering of information relating to the filing of new grievances, Zemba also refused to accept the decisions on old griev- ances decided adversely to Respondent. For example, on October 11, 1979, the Union obtained from a U.S. district judge, an order for confirmation of an arbitrator's award reinstating employee Phillip Mulligan, an alleged discri- minatee in this case.6 Zemba also refused to obey the order of the district judge and on November 1, 1979, the Union demanded in writing that Mulligan be reinstated pending appeal to the court of appeals. (C.P. Exh. 2.) On November 8, 1979, Zemba wrote back denying the Union's request and stating in part that "my decision is that I will not sit by and wait until Mr. Mulligan either injures or kills someone." (C.P. Exh. 3.) As a result of Zemba's refusal to obey the district judge's order, the Union, on January 23, obtained an order finding Re- spondent guilty of civil contempt, fining it $500 a day starting from January 23, and further awarding it attor- ney fees and costs. (C.P. Exh. 4.) The union was also forced on December 7, 1979, to file a petition to compel arbitration in U.S. district court. (C.P. Exh. 5.) This matter involved eight separate griev- ances that Zemba refused to process.? On April 1, the court entered an order in favor of the Union and against Respondent directing that the matters be arbitrated. (C.P. Exh. 6.) On December 26, 1979, the Union filed still another action in U.S. district court: complaint for specific per- formance of an agreement to arbitrate. (C.P. Exh. 7.) This dispute arose over a grievance filed by the Union as a result of Zemba's breach of the collective-bargaining agreement for failing to arbitrate the eight grievances re- ferred to above. Once again, Respondent lost. On June 10, the U.S. district judge entered an order that Re- spondent arbitrate the particular matter giving rise to the complaint and a derivative issue, i.e., the Union's claim a In late January, the Union and Respondent entered into an informal settlement agreement with respect to the alleged burdens on the shop steward's right to discover and obtain information from company files to process grievances (C P Exh 11 ) 6 The filing of the petition occurred prior to Zemba's purchase of Re- spondent 7 In response to my question, Zemba attempted to explain his position on the eight grievances In effect , he claimed that the grievants had failed to follow proper procedures in filing the grievances (R Tr 6654-6657) AZTEC BUS LINES for attorney's fees. The Union was awarded all costs ex- cluding attorney's fees. (C.P. Exh. 8.) On June 8, 1981, an arbitrator issued his "Award" finding that Respondent acted in bad faith by refusing to submit the eight griev- ances to arbitration ; the arbitrator also directed that the Union be made whole for the expenses caused by Re- spondent's refusal to arbitrate including attorney fees. (C. P. Exh. 9.) I will return to the question of grievances and arbitra- tion in resolving the question of Respondent's alleged bad faith in negotiating a new contract . Specifically, the question of "past practice" in employee discipline and the extent to which Zemba was bound by his predeces- sor's disciplinary decisions became an important point during negotiations. So too was the question of advisory versus binding arbitration . In order to continue the gen- eral background of the case , I turn briefly to other major events. The parties dispute whether a current collective-bar- gaining agreement exists between them. All agree, how- ever, that a prior agreement expired on June 30 . It is fur- ther undisputed that the first formal bargaining sessions between the parties occurred on June 12. There followed a series of bargaining sessions in which the parties were unable to reach agreement . The General Counsel con- tends that Respondent did not neogitate in good faith during these sessions. On August 23, a strike began and lasted until April 3, 1981, when pickets were removed and the Union allegedly made an unconditional offer to return to work. During the strike, Respondent claims that it refused to take back only those strikers who either were guilty of serious misconduct or had resigned there positions and abanadoned the strike . The Union claims that several nonstrikers were guilty of serious miscon- duct that the Respondent either never punished or, in some cases, even condoned. All these matters and others remain to be decided below. I turn now to the first sub- stantive dispute between the parties. B. The Alleged Unilateral Change in the Employees' Health and Accident Insurance Plana 1. The facts Prior to Zemba's arrival, Respondent's employees were insured for health and accident medical expenses through Employer's Mutual Liability Insurance Compa- ny of Wausau, Wisconsin (Wausau). The Wausau plan had been in effect for about a year beginning in February or March 1979, before coverage e All parties recognize that credibility resolutions in this case as in most will be critical. I will find for all major witnesses that portions of testimony will be discredited. Nothing is more common than to believe some but not all of what a witness says. Edwards Transportation Co., 187 NLRB 3, 3-4 (1970), enfd. 437 F.2d 502 (5th Cit. 1971). In deciding who is telling the truth in a given instance, I will attempt to state the factors on which I rely. Some witnesses have financial interests beyond that which is apparent. For example, there are some civil lawsuits in progress involving witnesses in this case both as plaintiffs and defendants and con- cerns matters that are the subject of my inquiry here. Further, I will look to the specificity of testimony as a legitimate factor in deciding credibil- ity. Teamsters Local 959 (Northland Maintenance), 248 NLRB 693 at fn. 2 (1980). Of course, I will look to the demeanor of the witness and a host of other factors not all that will apply in every instance. Where applica- ble, these factors influencing credibility will be pointed out. 1035 was canceled. (R. Tr. 250.) Prior to Wausau, Zlotoff and his general manager, Nickelson, had another carrier. When the change to Wausau occurred, the Union ap- proved, based on the fact that the benefits stayed the same, even though the Union desired greater benefits in the future. (R. Tr. 245-246, 248-249.) A brochure distrib- uted to employees is contained in the record. (G.C. Exh. 43.) According to Zemba, in October or November 1979, he was notified by Wausau representatives that Wausau was no longer interested in insuring Respondent's em- ployees. Zemba testified that Wausau's attitude was based on late premium payments, a high rate of disputed claims, and a too small enrollment . The group insurance policy covered not only Aztec employees, but employees of two other companies. Zemba allegedly had several meetings with a Wausau representative, but he neverthe- less received written notice of cancellation in December 1979, effective in February or March. After unsuccessful- ly attempting to obtain coverage from other insurance companies-the names of which Zemba could not recall-he finally obtained a group plan from Pacific Guardian. Another company named Dataramics and an individual named Ava Nawrey acted as cobrokers put- ting Respondent together with Pacific Guardian. Under this plan, employee claimants submit claims to a third company called San Diego Medical Foundation whose sole function is administration of the claims.9 According to Zemba, he told Randall, president of the Union, in November or December of the pending cancel- lation by Wausau. At this meeting and later meetings prior to the effective date of the new insurance cover- age, Randall's attitude was allegedly one of studied indif- ference. According to Zemba, Randall did not care what company handled the insurance as long as there were no "take-aways." Supposedly, this attitude was also reflect- ed by Gordon Hall, another union officer, who told Zemba, simply, "it's your company." Moreover, accord- ing to Zemba, Randall at one point looked through the then-current agreement and found support for Zemba's unilateral move in that the agreement covered only level of coverage, but not the carrier. To ensure that the new plan equaled the old plan, ac- cording to Zemba, two things were done. First, the at- torney for Dataramics reviewed the then-current agree- ment with Wausau to ascertain the level of coverage. Then, clause 1.6 was added to the new health benefit plan: It is the intent of this Plan to provide coverage equal to or superior to benefits under the immedi- ately previous plan or policy. This plan shall be in- terpreted and construed with that intent in mind, and shall be deemed to provide at least the level of 9 To further complicate the arrangement, I note that Zemba and Harri- son are trustees of a trust administered through Security Pacific Bank, acting as administrator. Claims of $5000 or less are paid out of the trust assets, but over $5000 are paid by Pacific Guardian. Respondent makes payments into the trust on a regular basis . The plan also covers Palisade Wholesale and Viewland Construction , two companies formerly insured by Wausau with Respondent. Zlotoff, former owner of Respondent, is an officer of Palisade and Robert Zlotoff, his brother, is an officer of View- land. 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD benefits provided in the prior plan or policy. [R. Exh. 47.] Not surprisingly, union representatives give a substan- tially different version of events on this topic. Randall, for example, testified that the first knowledge of Zemba's change was at a meeting in March , when Zemba stated that he was looking for a new insurance company. Da- taramics was mentioned. Randall told Zemba to let him know so he could get the change approved as required by the contract. I o The next notice to the Union that a change in Re- spondent's health benefit plan was made occurred early in negotiations when someone on Respondent's side stated there was a new health plan." To this, Randall replied that we may have another one before negotia- tions are over with, because the Union had proposed dif- ferent plans. Randall's account is contradicted to a certain extent by the testimony of Jan Corona, the chief shop steward and alleged discriminatee. She testified that in October or November 1979, she attended an informal meeting with Zemba in the union offices. Randall and possibly Hall were there for the Union. At this time, she recalls Zemba saying that he was looking into other insurance companies and he would get back to them on that point. Corona continued that although this subject did not come up again in her presence until negotiations began, she did obtain additional information in the first or second week of May. At this time she heard two drivers talking about a new company health plan and she inter- rupted them, asking for additional information. When told there was in fact a new plan, the witness went to the office where she talked with a clerical employee named Cheryl, who handled employee insurance matters. Cheryl confirmed the change in plan and gave the wit- ness some forms to fill out and a medical identification card. Corona also received at this time a summary of benefits under the plan. (G.C. Exh. 59.) This notice reads in part: Following is a summary of the benefits as they were under the prior Insurance Co. and as they will con- tinue to be. Corona never saw this notice posted at Respondent and, according to a statement of Respondent's attorney, nei- ther Zemba nor Harrison was familiar with it. (R. Tr. 616.) The document was undated but was apparently prepared subsequent to March. Corona went on to testify that the notice was never distributed to employees through their message drops. to On the final page of G C. Exh 2, the pnor contract, there is a letter of agreement regarding "Health and Life Insurance." This agreement states in part "that whatever Health and Insurance plan is agreed to, that the Company will pay premium for three (3) months for an employee who is incapable of working due to illness." (Emphasis added.) This choice of language indicates to me that the parties intended for the Union to have an opportunity to bargain on the carrier as well as the benefit levels 11 Randall could not recall the name of the alleged speaker, nor the exact date, and he did not record the comment on his personal notes. However, the first formal bargaining session occurred on June 12 During negotiations, the subject of health insurance came up again. Zemba, Harrison, and Schultz were ex- amining union proposals when they saw a page on health and welfare. Zemba stated that it was not necessary to negotiate this part of the package as he had new insur- ance that was adequate.12 Randall then asked Corona whether the Respondent had a new insurance plan and Corona confirmed it and showed Randall her card. Zemba stated that the change had been made in March. Later in a private conversation between Randall and Corona, the former scolded Corona for not notifying him about the new insurance plan. She stated that she had only found out about it in early May.' 3 Randall was asked about two meetings with members on July 3 and on August 18 wherein Respondent's pro- posals were discussed. According to Randall, the majori- ty of members previously had indicated a desire for a Kaiser medical plan (HMO). However, the Union's ini- tial proposal submitted on June 23, contains no reference to a Kaiser medical plan. (R. Tr. 7253-7254.) Moreover, in addressing members on July 30, Randall testified that he told members there were no improvements in the health and welfare. (R. Tr. 239-240.) Then he stated that the Union did not know about the new plan at that time. (R. Tr. 240.) As of the Union's ratification meeting on August 18, according to Randall, the Union thought that the Wausau plan was still in effect. (R. Tr. 240.) This, despite the fact that during an early negotiating session, someone in management stated to Randall that Respond- ent had a new carrier. (R. Tr. 24.) Although Randall never asked who the new carrier was (R. Tr. 242) nor ever requested a copy of the new plan (R. Tr. 251), he believed Corona had asked someone who the new carrier was. (R. Tr. 242.) Someone at the ratification meeting told employees that there had been a change in carriers, but Randall does not think it was he. (R. Tr. 242.) Ran- dall also testified that he believes at the August 18 ratifi- cation meeting, Corona told the membership there had been a change in membership. (R. Exh. 242-243.) 2. Analysis and conclusions There is obvious conflict in the testimony between the witnesses referred to above, and even within the testimo- ny of a single witness, Randall. Before resolving these conflicts to the extent possible, I begin with relevant principles of law. Unilateral changes of "wages, hours and terms and conditions of employment" by an employer obligated to bargain with the representative of its employees in an ap- propriate unit violates Section 8(a)(5) of the Act.14 As of 12 This statement of Zemba's is inconsistent with his claim that the Union had pnor knowledge of the change in health and accident insur- ance. Is Although Corona never testified to the exact date that these conver- sations occurred, it was between June 12, the first negotiating session, and August 18, the ratification meeting of union members. It appears to have been toward the beginning of this period , probably on June 23, when a first meeting was held to discuss the union proposal tendered to Respondent on June 12. 14 Master Slack Corp., 230 NLRB 1054 (1977), enfd 618 F 2d 6 (6th Cir 1980); Amsterdam Printing & Litho Corp, 223 NLRB 370 (1976); and NLRB v. Katz, 369 U.S. 736 (1962). AZTEC BUS LINES 1037 March, Respondent was an employer obligated to bar- gain with the Union. This is so because Respondent was a successor employer. Although Respondent had no obli- gation to assume the predecessor's labor agreement, Zemba voluntarily agreed to do so.15 The next question is whether the implementation of a health insurance plan is a mandatory subject of bargain- ing. I find that it is.16 In this respect, I fmd that the car- rier of a health benefit plan is as much of a "component" of a health and welfare plan as are the levels of cover- age. 17 It is no more than common sense that a union's interest in a health and welfare plan would extend to the carrier's identity. With this knowledge, the Union is able to investigate the carrier's financial condition and reputa- tion for prompt and fair payment of claims. The General Counsel contends (Br. 8) that "Where an employer unilaterally, without notice to, or bargaining with the union, changes insurance plans, it violates [the Act] even if the benefits under the new plan are identical to those in the old plan." For this proposition of law, the General Counsel cites "Clear Pine Moldings, Inc., 238 NLRB 69 (1978)." First, the case does not stand for that principle at all. In Clear Pine Mouldings Inc. v. NLRB, 632 F.2d 721, 729-730 (7th Cir. 1980), enforcing the Board's decision cited by the General Counsel, the court specifically stated there was no showing that the new plan unilaterally instituted by the employer was identical to the old plan. Had there been such a showing, the court stated, it may well have followed a precedent found in Connecticut Light & Power Co. v. NLRB, 476 F.2d 1079 (2d Cir. 1973), where the court excused an employer who changed plans, where the evidence showed that the plans were identical.18 In this case, I find no convincing evidence that the two plans were identical in coverage . I am aware that clause 1.6 of the new health plan (quoted above) states (R. Exh. 47) the intent of the new plan is to equal the coverage of the old plan. However, Harrison testified that due to Wausau's refusal to cooperate, she and Zemba were never able to get a copy of the detailed medical plan. (R. Tr. 2419.) Thus, she relied on pam- phlets generally describing the level of benefits under Wausau, "but not in total detail for the legal language of the certificate." (R. Tr. 2419.) Because a copy of the Wausau plan was never offered nor received into evi- dence, a meaningful comparison cannot be made. More- 15 NLRB v. Burns Security Services, 406 U.S. 272 (1972). 16 Law Enforcement Officers Local 40B (South Jersey Detective), 260 NLRB 419 fn. 8 (1982); La Mousse, Inc., 259 NLRB 37 fn. 1 (1981). 17 Cf. Golconda Corp. Y. NLRB., 474 F.2d 49 (6th Cir. 1973). 18 In Connecticut Light & Power Co. Y. NLRB, id., the court refused to enforce the Board's Order, 196 NLRB 967 (1972). Of course, I am bound by the Board's decision and it is on the basis of this authority that I find, even where the level of benefits stay the same, the Employer is required to bargain with the Union as to the identity of the carrier. Furthermore, even the Second Circuit, in Connecticut Light & Power Co., leaves open the possibility that at least in some cases, an employer must bargain over the identity of the carrier: Our holding as stated above, however, should not be construed to mean that in all cases may the selection of a carrier be divorced from the elements of employee health insurance that traditionally have been held to be mandatory subjects of bargaining. [476 F.2d at 1083.] Accordingly, for the reasons I state in the text , I fmd that the facts in the instant case may be distinguished from the court's decision in Connecticut Light & Power Ca v. NLRB. over, I fmd Harrison's testimony that the plans were identical is self-serving, conclusionary, and without ap- parent legal basis. Harrison's further testimony that an at- torney for the cobroker, Dataramics, who never testified, nor was even fully identified, gave Respondent assur- ances that the plans were identical is entitled to little or no weight. Even the apparent impression of Randall and other union officers that the plans were identical is not convincing. In addition to the paucity of evidence to show the identical nature of the plans, there is other evidence to show that the plans were not identical in significant de- tails:19 (1) Wausau administered its own claims , but under the Pacific Guardian-San Diego Medical Foundation a third party administered claims.20 (2) The new plan was, in part, a self-insurance plan, which would raise issues of viability under the best of circumstances, but particularly with new corporate man- agement. (3) Under the old policy, an employee's coverage ter- minates on the last day of the month in which employ- ment terminates; under the new plan, coverage ceased on the date the employee's" active employment terminated.21 In sum, I find that the General Counsel has proven a prima facie case of a violation of Section 8(a)(5). That is, even where the new plan is identical to the old plan, which is not true in the present case, an employer is not free to change carriers, without notice to the certified bargaining representative and an opportunity to bargain on the issue.22 Now I must decide whether the Union here received timely notices and, if so, whether the Union demanded bargaining on the issue , unless the demand would have been futile. All agree that the new plan began in March. I cannot credit Zemba's testimony that prior to this effective date of the new plan, he was repeatedly assured by Randall and other union officers that they had no interest other 19 At hearing, the General Counsel disavowed any reliance on a theory involving a change of benefit levels or of any detrimental impact on employees as a result of coverage being reduced . He stated , "it's our understanding . . . the levels of benefits, did in fact remain the same." (R. Tr. 2423-2424.) In his Br. 9, the General Counsel retreats from the above statement and contends there were differences in the two plans. 20 Indeed, Harrison admitted that at first there had been some employ- ee complaints relative to slow payments by the San Diego Medical Foun- dations. (R. Tr. 2728.) 21 Thus on September 5, Zemba sent a memo to all striking employees that read as follows: Date: September 5, 1980 Memo to : All Striking Employees From: A. C. Zemba [s] A. C. Zemba 9/5/80 Subject: Insurance Coverage This notice is to inform you that our insurance plan states, that eli- gibility of an employee will terminate on the day the employee's active employment terminates and to be eligible must be regularly scheduled to work at least twenty five (25) hours per week for Driv- ers and thirty two (32) hours per week for Maintenance employees. As you have not been on the job since August 22, 1980, we have notified our Insurance Company to that effect. cc: Joe Neeper, Atty. Don Randall, Union [G.C. Exh. 45.] zz See also Wisconsin Southern Gas Co., 173 NLRB 480 (1968); Wabana, Inc., 146 NLRB 1162 (1964). 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD than to see there were no "take-aways." (Even if Zemba's testimony were credited, I find that the changes in the two plans as described above were "take-aways." Accordingly, even under Respondent's theory of credi- bility, I would construe Randall's statements as a demand for bargaining because the new plan was changing the status quo on a substantive basis.) Another factor that makes it unlikely that Zemba was receiving the indifferent response that he described was the series of court battles raging between Respondent and the Union at approximately the same time. Zemba's stubborn refusal to follow the rules of grievance and ar- bitration would have caused the Union to be guarded in its relationship with him. In this respect, I agree with Respondent (Br. 654-655) where it adverts to a prior change in carrier before Zemba assumed control of the Company. In that case, the Union apparently did not object because the benefits stayed the same.23 In this case it was not proven that benefits stayed the same; further, other differences were apparent. More- over, the Union was not enjoying the same cordial rela- tionship with Zemba as it enjoyed with Zlotoff. Accord- ingly, I must reject Respondent's contention that these prior events enhanced Zemba's credibility on this issue. To reject Zemba's testimony is not to find Randall's testimony a model of clarity or even believable in and of itself. However, looking to the testimony of Randall and Corona, I find that Zemba did tell union officials in Oc- tober or November that he was looking into other insur- ance companies and that he would get back to the Union on that point. There is no credible evidence of any fur- ther notice to the Union prior to March when the fait accompli occurred.24 Subsequently Corona found out in May that the change had already occurred. I find that notice to her, even inadvertent notice, was notice to the Union since she was chief shop steward. However, the violation of the Act occurred on or about March 1, and the Union's reaction subsequently, although not easily as- certainable because of the contradictory nature of Ran- dall's testimony, is also not relevant. The union negotiators were under a mandate for Kaiser (HMO) once negotiations began in June. Howev- er, Zemba had just changed carriers as of March and was assuring union officials that no benefit levels had changed. I do not find any clear and unmistakable waiver under the circumstances, since the Union was faced with several other matters to be negotiated and the health insurance was no longer an immediate concern.25 In addition, there is evidence to suggest that Kaiser was not even available as of the summer. In sum, I find that as of May, when Corona discovered the change in insur- ance plans, it would have been futile for the Union to 23 However, even past failure to assert a statutory right does not estop subsequent assertion of that right. Rockwell International Corp, 260 NLRB 1346 fn. 6 (1982) 24 Zemba and Harrison were both under the mistaken impression that they had every right to change carriers without consultation or bargain- ing with the Union Under these circumstances, it is more likely that timely notice was never sent nor ever received by the Union. Moreover, I do not believe that the notice given to Corona (G C Exh. 59) was ever posted. 25 Allied Mills, Inc., 218 NLRB 281 (1975); Universal Security Instru- ment, 250 NLRB 661 (1980). demand bargaining on the matter, and may well have damaged their bargaining position on the other issues waiting resolution.26 Respondent also contends (Br. 655) that the then cur- rent agreement contained no provision limiting its right to make the unilateral change in issue. This argument lacks merit: the issue is always whether the current agreement contains language clearly and unmistakably waiving the Union's right to bargain on a proposed uni- lateral change.27 If the contract is silent on the matter, as it essentially is here, then it is the Act and Board law that imposes the prohibition. For all the reasons stated above, I find that by making a unilateral change in its health benefit plan as of March 1, Respondent violated Section 8(a)(5) of the Act.28 C. The Alleged Bad-Faith Bargaining (Prestrike)29 1. The facts Prior to the strike of August 23, the parties to this case participated in approximately 15 bargaining sessions. There was some variance in bargaining representatives on both sides, but generally Respondent was represented by Zemba as lead negotiator, Harrison, Schultz, and Thomas Ingersoll.30 Toward the end of the negotiating 29 See Merrell & Ring, Inc., 262 NLRB 392 (1982); Carpenter Sprinkler Corp., 238 NLRB 974, 983 ( 1978), enfd. 605 F 2d 60 (2d Cit. 1979) I have read Citizens National Bank of Willmar, 245 NLRB 389 (1979), which at first reading could be described as supporting Respondent's po- sition here However, the union in that case never attempted to excuse its failure to demand bargaining on the grounds of futility nor was the issue even raised. Accordingly, I distinguish Citizens National Bank of Willmar from the instant case and find it does not apply. 27 Rockwell International Corp., 260 NLRB 1346 (1982). 28 In its brief (Br. 10), the General Counsel anticipates an issue never raised at hearing relating to the 10(b) period . I see no bona fide issue on that point However, to preclude the issue from being raised , I specifical- ly find that the first notice to the Union of the change in health plans occurred in May when Corona inadvertently discovered the change that was effective on March 1 . Case 21-CA-19497 was filed on September 2, well within the 10(b) period 29 On the second day of hearing, the question arose whether the Gen- eral Counsel was claiming bad-faith bargaining both before and after the strike begin on August 23. The General Counsel stated The subsequent negotiations are not alleged as being bad faith bar- gaining [sic] is because we have alleged that there was an agreement reached, and therefore, if the company has an obligation to sign that agreement, that erases the effect of any bad faith bargaining that oc- curred getting to that agreement . [R Tr. 19.] The General Counsel went on to urge that this alternative theory, though not then pleaded in the complaint, was that if an agreement had not been reached in April 1981 , then it was due to Respondent's additional bad- faith bargaining After discussion of the mechanics of setting forth this alternative theory, the General Counsel finally decided to amend the complaint Original par 11 of the fourth consolidated amended complaint became 1la and the General Counsel added 1lb- During the period of time from November 6, through April 9, 1981, Respondent did engage in surface and bad-faith bargaining, includ- ing, but not limited to, making proposals calculated to be unaccept- able to the Union and failing to make a reasonable effort to compro- mise differences [R. Tr. 205-207, 212 ] The motion to amend was granted over Respondent's objection 80 The supervisory status of Ingersoll is in issue due to certain state- ments he is alleged to have made in early 1981 , concerning Respondent's strategy during the bargaining sessions I will address this issue below. AZTEC BUS LINES 1039 period, a man named Puffer replaced Zemba as lead ne- gotiator. Puffer, a management labor consultant, was never called as a witness. The Union was usually represented by Randall, Gordon Hall, Gene Napier, and Corona.31 Later in the negotiations, the union team was joined by Charles Yelkey, an International vice president of the Union. He then became lead negotiator. Although a major figure here and in the events leading up to and during the strike, Yelkey was never called as a witness. I turn now to the events of the individual bargaining sessions. a. -June 12 The first negotiating session was held in the union office. Previously, the Union had held one or more meet- ings with members to get a sense of what the member- ship wanted in the new contract. After these meetings, the union proposals were prepared and tendered to Re- spondent's negotiators at this meeting. (G.C. Exh. 3.) Zemba had nothing for the Union at this time, but did state that he did not want to be responsible for past prac- tices of prior management and previous grievances. b. June 23 Pursuant to agreement reached at the last meeting, the parties met again on June 23 at the office of the Federal Mediation and Conciliation Service.32 At this meeting, the parties reviewed the Union's proposals with the union negotiators, explaining their reasons for the changes they wanted. Zemba again reiterated his desire not to be bound by past practices of prior management. Without completing review of the Union's proposals, the parties agreed to meet again on June 25. c. June 2533 Zemba tendered to the Union his proposal for "Man- agement Rights."34 Later at that meeting, Zemba ten- 3' Unless otherwise specified , the negotiators for both sides will be as indicated above. At this meeting Corona was not present. 32 All subsequent meetings were held at this location unless otherwise indicated. ss Ingersoll did not attend this meeting. 84 This proposal reads as follows: AZTEC BUS LINES MANAGEMENT RIGHTS The Company retains and shall continue to have the complete and exclusive right and power to manage its operations and direct its working force, except as expressly limited by specific obligations of the Company set forth in this Agreement. Among such retained rights and powers are included the following : to hire; to promote, demote, transfer, layoff, and recall ; to assign and reassign to duties, hours of work and shifts; to compensate employees in excess of mini- mum hourly wage rates; to maintain good order and efficiency; to discharge, suspend, and discipline employees; to establish rules and regulations not in conflict with the Agreement governing the con- duct of employees on Company time or Company property; to deter- mine the type and quality of service in the functions of transporta- tion methods, processes, and means of transportation service, includ- ing trips, routes and schedules of service, and of administration and sales; to determine the size and composition of the working force; to locate work within the site; to discontinue all or any part of its oper- ations; to transfer to other locations and there to perform all or any dered other proposals relative to grievances, arbitration, leaves of absences, and reaching an agreement.35 More employer proposals were promised for the next meeting. Some desultory conversation between the parties also oc- curred, such as Randall's observations that the manage- ment rights had very broad subcontracting language and that under this proposal one driver could be paid more than another driver. To this latter comment, Zemba voiced-agreement. Once again Zemba raised the subject of "past practice" and asked the Union for a side letter on this subject, to the effect that he would not be bound. Zemba also talked about 13 prior accidents at Respond- ent and the fact that he desired to be consistent on disci- pline. During the session, Zemba accused Randall of bargain- ing in bad faith. Randall denied the charge and no fur- ther details appear of record. This meeting concluded when Randall gave Zemba a copy of a letter to extend the contract on a day-to-day basis. Zemba promised to bring the letter back for the next meeting on Friday. He saw no problem with it. Zemba also requested a meeting on Saturday for one-half day. d. June 27 Zemba began by stating that he would not sign the day-to-day letter, but would continue to bargain in good faith. When asked by Randall what would happen on June 30 when the contract expired, Zemba stated he would be there to negotiate. After a union caucus, the parties reached agreement on certain items taken from the Union's and Employer's proposals. Then Randall reached Yelkey by telephone to inform him what Zemba had said relative to the day-to- day letter. After talking to Yelkey, Randall asked Zemba to talk to Yelkey at the latter's request. Zemba agreed and told Yelkey that he would continue on the same cri- teria that he was presently going. Then Randall asked Zemba to restate his verbal assurances to continue the contract on a day-to-day basis in front of the Federal mediator. Zemba refused on the grounds that the media- tor present was not the mediator assigned to the case. e. June 30 Notwithstanding Respondent's position on the day-to- day letter expressed at the prior meeting, Zemba ten- dered an agreement to the Union extending the old con- tract on a day-to-day basis and executed same. (G.C. Exh. 7.) In addition to this agreement, Respondent also tendered a 64-page document entitled "Aztec Bus Lines, Company Proposal to San Diego Bus Drivers Union, part of its operations ; to subcontract any part of its operations; to determine whether to purchase or lease equipment and service; to lease, sell, or otherwise dispose of or permit the use by others of all or any part of its facility and equipment. All matters not specifically enumerated in this Agreement are re- served to the employer and may not be a subject of meeting and ne- gotiation, grievances or restriction on the right of the company to manage the company and direct it's [sic] employees and operations. [G.C. Exh. 4.] $5 The proposals were never offered or received into evidence. 1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 1309." (G.C. Exh. 6.)36 Zemba presented still a third document to the Union at this time, a "Letter of Understanding" to the effect that Respondent would not be bound by past practices. (G.C. Exh. 5.) Zemba stated that he did not wish to be bound by past stupidity, hence, the side letter. Zemba also stated that Respond- ent's negotiators had not had adequate time to review the union proposals. Before the meeting ended, Randall reviewed Zemba's proposals and rejected the sections on grievance and ar- bitration, medical leave, maternity leave, leave of ab- sence for union business, sick leave, and seniority deter- mination. In rejecting these provisions, Randall some- times stated "no" without elaboration and sometimes made comments. He also questioned several other provi- sions that were contained in the proposal as well as others that the Union considered important but were omitted. f. July 2 Zemba began this meeting by stating that he wanted only employees who were loyal to the Company, but since he had purchased the Company in September 1979, he had noted that employees were loyal to the Union and not to the Company . Zemba also stated that Re- spondent had been losing money and that the union pro- posal was large, expensive, and late. Zemba concluded his preliminary remarks by stating he was turning over negotiations to Harrison . Zemba added, however, that any agreement she made was tentative only, subject to approval by Zemba. At this point, the parties resumed substantive negotiations concerning affirmative action, arbitration, and other matters, but no agreement was reached. cluded in the Company's proposals. Management rights were again discussed. Zemba concluded by stating al- though there was movement by the Union on noneco- nomic issues, the Company wanted movement on eco- nomic issues. i. July 1137 Discussion began with past practice and Zemba stated that in order to manage the Company, he could not be bound by this. Accordingly, Zemba wanted a side letter of agreement that he would not be bound. Then Zemba announced that he was retaining the services of Tom Puffer, a management labor consultant. The session con- cluded with a review of the contract for the benefit of Yelkey and there was a brief discussion of benefits for mechanics. No agreement was reached on any subject. Harrison returned to the session in the afternoon of July It. She testified that Yelkey stated in her presence that he had been in Las Vegas and that Randall had no authority to make decisions in his absence. Zemba con- firmed this conversation and he further stated that, prior to this time, no one on Respondent's side was aware of Randall's lack of authority. To be more specific, Yelkey told Harrison that nothing could have been accomplished in his absence. I credit the testimony of Harrison and Zemba on this point.38 j. July 1439 The Union had previously requested a list of people in the various categories in maintenance. This list was ten- dered by Zemba. Then both sides went through the con- tract and agreement was reached on certain items. Ran- dall, however, could not recall what these items were. g. July 3 In Zemba's absence, Harrison led negotiations for Re- spondent. Respondent made a concession on the assigned successor and heir's clause agreeing to the language of the prior contract. The Company made further conces- sions. It agreed to language that nothing in an employ- ee's record regarding discipline could be used after 1 year had expired. It also agreed to language from the prior contract regarding shift differential for the mechan- ics, and there was apparent agreement relative to pay for jury duty. Finally, Harrison stated that Zemba was hold- ing on the grievance procedure, but would consider re- moving the word "advisory" from the arbitration pro- posal. h. July 7 The parties discussed sick leave , vacation pay, the charter board (i.e., those drivers assigned to bus char- ters), and how to define part-time employees. Zemba stated there was a 4-hour guarantee that had not been in- 98 At Br. 13-15, the General Counsel has quoted selectively from G C Exh. 6, quoting sec A, "Management Rights, Article V, Grievance Pro- cedure, and Article VI, Advisory Arbitration " Although these sections are relevant within the scheme of the present issue , I will consider them within the context of the entire document and the entire document within the context of all the evidence k. July 2110 At this meeting, Yelkey presented Respondent with a handwritten proposal on grievance-and-arbitration proce- dures as a counterproposal to the Company's proposal. The Employer's representatives objected to the counter- proposal claiming it was too wide open. After a compa- ny caucus, the Respondent's representatives asked Yelkey what the intent of the language was. Yelkey re- plied that he wished to make the grievance-and-arbitra- tion procedure less one-sided. Then Yelkey withdrew the proposal. Both sides went through various other articles of the proposals, but no agreements were reached. Later that 87 At this session, Harrison was absent from the morning session only. The union team was joined by Charles Yelkey, International vice presi- dent of the Union. 38 Yelkey was never called as a witness and I find the failure of the Charging Party to call its International vice president on this and other matters or to explain his absence raises and adverse inference . Martin Luther King Sr Nursing Center, 231 NLRB 15 (1977); Earle Industries, 260 NLRB 1128 (1982), but see Wayne Construction, 259 NLRB 571 (1981). Randall did not testify about the conversation between Yelkey and Harrison, but it is not clear he would have heard it or, if he heard it, he would have recalled it. He had virtually no independent recollection save what was on his notes and this exchange was not contained therein. 99 Harrison was absent from this session. Yelkey was present for this session and succeeding sessions except where indicated 40 Harrison and Napier were absent from this session AZTEC BUS LINES day, the Company asked that the Federal mediator be present for the next meeting. 1. July 2241 Both sides went through their proposals for the benefit of the mediators. Respondent stressed that past practice was out and that management will manage. Those em- ployees that produce can stay, and those that do not, go. The mediators then met with both sides privately. No agreement was reached on any provision. m. July 2442 First, the parties exchanged some language for certain items and proposals. Then, after the Company held a caucus, it informed the Union that it had sent for Puffer. A short time later, Puffer arrived and stated that he was presenting a settlement offer and not a final offer on behalf of Respondent. (G.C. Exh. 8.) Puffer then stated that he was giving 24-hour notice to cancel the day-to- day letter and that everything was open for negotiation. Randall further stated that Respondent would give cer- tain guarantees on retroactivity back to the expiration date of the contract, if it was accepted by a certain date. Although Puffer asked that the settlement offer be pre- sented to the membership for ratification, Randall did not do this. n. August 543 At this meeting, the Union presented its counterpro- posals (G.C. Exh. 9), prepared in response to the July 24 settlement offer. The Union had rejected Respondent's settlement offer and Respondent rejected the Union's counterproposal. Puffer stated that the retroactivity part of the settlement offer for pay was withdrawn, and the Company would attempt to operate under the present contract. Both sides agree that the mediator then asked if the Union desired a final offer from the Company. Randall testified to Yelkey's alleged response: "There was a lot of questions to be asked first." According to Respondent's evidence, the two sides were dealing with the mediator in separate rooms. The mediator told Zemba and Harrison that the Union was asking for a final offer. At the mediator's request, both sides reassembled in the same room. Yelkey then stated: Gus, I'm not asking for a first final I'm not asking for a second final, third or fourth final. I am asking for your final, final, final. As Yelkey, a large man, made this statement, he banged his hand on the table for emphasis. Harrison's account of Yelkey's statement was corroborated by Zemba. I credit Harrison and Zemba here. Again, I note that Yelkey was never called as a witness and Harrison's recollection of the bargaining session seemed to be better than Randall's. 41 Napier was absent. Federal Mediators Taylor and Brown were present 42 Napier was absent 43 Puffer was present here and at future sessions unless otherwise indi- cated 1041 It also seems to me unlikely that the mediator would not press Yelkey to ask the questions that needed to be asked if Yelkey had made the statement attributed to him by Randall. Yet Randall's narrative stops exactly at that point. In any event, as Puffer thanked the Union for the time they put in, the meeting ended.44 o. August 12 In response to Yelkey's request made at the prior meeting, Puffer presented Respondent's final offer to the Union. (G.C. Exh. 10.) Puffer stated the offer was on the table until Sunday, August 16, at midnight. Yelkey stated that it had to be reviewed and presented to the member- ship. The following day, company representatives met only with Randall to answer the Union's question about the offer.45 p. Union ratification meetings The last formal bargaining session was on August 12; on August 18, about 90-110 union members met to con- sider Respondent's final offer. Randall addressed the as- sembly on behalf of the union leadership. He compared the pending offer to the previous contract and found the former lacking. Specifically, Randall told the members they would not have job security because due to the wording of the management-rights clause and the word- ing of the gnevance-and-arbitration clause, they would be unable to grieve, discipline, or discharge. Randall also told members that under Respondent's pending offer they would have fewer sick and vacation days, no jury duty pay, and no provisions for doubletime on holidays nor for over-the-road charter pay. These were all bene- fits that employees currently had. Finally, Randall told members that the money or economic package was okay and the Union could live with it. Members of the Union's executive board addressed the members and unanimously recommended that the Company's offer be rejected. The membership did vote to reject and subse- quently voted overwhelmingly to strike. The following day Randall called the Federal mediator and informed him of the strike vote and a strike deadline. At 12:01 a.m. on August 23, the Union went on strike. On August 25, Zemba sent a letter to Randall, which the latter received. It reads as follows: Mr. Donald R. Randall , President San Diego Bus Driver Union, Local 1309 AFL-CIO Amalgamated Transit Union 7851 Mission Center Court, Suite 115 San Diego, CA 92108 Dear Mr. Randall: 44 Another reason I believe Harrison and Zemba on this point relates to the union ratification meeting on August 18. Of all the Union's objec- tions to the offer, there was no claim that management was trying to ter- minate bargaining by submitting a premature final offer It is probable that Yelkey asked for a final offer because he was under pressure from members who were impatient working under a day-to-day extension of the contract 45 What occurred at this meeting does not appear of record 1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Since you went on strike 12:01 AM August 23, 1980, we are obviously at an impasse . Since we have said impasse be advised that we plan to insti- tute our last best offer on September 1, 1980. If you wish to discuss the implementation of said last best offer please advise the Federal Mediator who will arrange for a meeting and we will be happy to do so. Sincerely, /s/ A.C. Zemba President cc: John Taylor, Federal Mediator [G.C. Exh. 11.] 2. Analysis and conclusions The General Counsel's theory of prestrike bad-faith bargaining is based on two primary contentions (Br. 23- 25): (a) that Respondent bargained to impasse on a non- mandatory subject of bargaining: to wit, the Union's stat- utory right to file grievances with management on behalf of bargaining unit employees; and (b) that Respondent's position on management rights and arbitration, prior to August 12 when Respondent changed its position in part, was designed to permit management to make unilateral changes in employee basic rights and protected activities without recourse. Before considering these contentions further, I turn briefly to the relevant legal principles for guidance. In Chevron Chemical Co., 261 NLRB 44, 45 (1982), the Board stated that: Determining whether parties have complied with the duty to bargain in good faith usually requires examination of their motive or state of mind during the bargaining process, and is generally based on circumstantial evidence, since a charged party is un- likely to admit overtly having acted with bad intent. Hence, in determining whether the duty to bargain in good faith has been breached, particularly in the context of a "surface bargaining" allegation, we look to whether the parties' conduct evidence a real desire to reach an agreement-a determination made by examination of the record as a whole, in- cluding the course of negotiations as well as con- tract proposals. ...4 e At 46, the Board continued: [I]t must be remembered that Section 8(d) does not "compel either party to agree to a proposal or re- quire the making of a concession . . . ." Thus, the Board does not, "either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements." N.L.R.B. v. American National Insur- ance Co., 343 U.S. 395, 404 (1952). On the other hand, as stated by the Supreme Court, "[T]he Board has been afforded flexiibility to determine .. . whether a party's conduct at the bargaining table 49 See also M & R Trucking Co, 178 NLRB 167 ( 1969), enfd in part 434 F 2d 689 (5th Cir. 1970) evidences a real desire to come into agreement .... And specifically we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole." N.L.R.B. v. Insurance Agents' International Union, AFL-CIO [Prudential Insurance Co.], 361 U.S. 477, 498 (1960). The Board does, of course, with court sanction, consider the content of bargaining proposals as part of its review when making a determination as to the good faith of parties negotiating a contract. In its brief at 529-534, Respondent cites several cases for the proposition that when evaluating the totality of an employer's conduct, the Board has found it relevant to examine the conduct of the union as well .47 It is un- necessary in this case to decide to what extent, if any, the Union's conduct might immunize otherwise unlawful conduct of Respondent.48 The Union's conduct here does not indicate bad faith at the bargaining table nor in the negotiating process . I reject Respondent's claim (Br. 545) that the Union acted in bad faith during negotiations by ignoring the contents of company proposals, by making misrepresentations to union membership, by rec- ommending rejection of the Company's final offer, and by recommending a strike because of personal dislikes for Zemba. These claims are completely unsupported by the record. In sum, I decide the question of good and bad faith of Respondent by looking to the totality of its conduct alone. As noted above, "totality of conduct" includes both conduct at and away from the bargaining tables49 and content of bargaining proposals . Looking to Respond- ent's conduct first, I note Respondent's practice begin- ning in October 1979 of failing to process grievances and arbitration in accord with past practice. I need not repeat the Union's various favorable court decisions that I have related above. Next, I note Zemba's occasional dispar- agement of the Union, its officers, and its members during negotiations. For example, on June 25, Zemba ac- cused Randall of negotiating in bad faith . There is no evidence in the record to support this accusation. Also, on July 2, Zemba stated that his employees were more loyal to the Union than to the Company and he wanted only employees who were loyal to the Company. Then Zemba attacked Corona, a member of the Union' s nego- tiating team, who was present. He called her a "trouble- maker" and accused her of being the cause of much of the problems between Zemba and his employees. On II See, e g , Times Publishing Co, 72 NLRB 676, 683 (1947), Roadhome Construction Corp., 170 NLRB 668, 672 (1968), State Farm Auto Insur- ance, 195 NLRB 871 (1972) 48 There appears to be tension between the Board's general holding that the "clean hands doctrine of equity does not operate against a Charging Party." See Marines Memorial Club, 261 NLRB 1357 In 2 (1982), and the cases cited in fn 47, above Moreover, there is some reason to believe that the cases cited in In 47, above, are no longer good law In NLRB v Hiatt Electric, mein 685 F 2d 444 (9th Cir 1982), the court stated its present view, "even if the Union had engaged in an unfair labor practice [failure to bargain in good faith ], its conduct would not be a defense to a charge of unfair bargaining against the Company . " 49 NLRB Y. Insurance Agents, 361 U S 477 (1960); NLRB v. American National Insurance Co, 343 U S 395 (1952) AZTEC BUS LINES July 14, Zemba again attacked Corona, accusing her of being a "troublemaker" and of filing grievances that were not really true.so Of course, not all Respondent's conduct during negoti- ations was negative. Prior to the strike, Respondent par- ticipated in 15 bargaining sessions with the Union, the first of which was at the union office and the rest of which were at the Federal Mediation and Conciliation Service. Some agreement was reached on certain matters and Respondent made several concessions on matters of interest. For example, Respondent first refused, then agreed to sign, the day-to-day letter extending the con- tract. In addition, on July 14, Respondent had furnished certain information to the Union as requested. Represent- atives of Respondent met with the Union to answer questions relative to its final offer. s 1 I turn next to the content of the bargaining proposals since, as noted above, the Board may examine these pro- posals as part of its review of all the circumstances in evaluating an employer's good faith.52 I review these with the understanding that the Act does not command the parties to agree-it explicitly states they need not. But the right not to agree or concede, or to refuse a par- ticular proposal or make a concession, may not be uti- lized as a "cloak . .. to conceal a purposeful strategy to make bargaining futile or fail. 1153 In looking at Respondent's final proposal (G.C. Exh. 10), 1 note that Respondent modified its "Management Rights" clause so that it read in pertinent part, Among such retained rights and powers are includ- ed the following: . . . to discharge, suspend, and discipline employees for dust cause . . . [p. 4]. The addition of the "for just cause" standard was a sig- nificant concession by Respondent based on its previous- ly announced position. It becomes more significant when considered with a second modification of the arbitration clause (art. VII): The decision of the Chairman [Arbitrator] within the limits herein prescribed shall be final and bind- ing on all parties to the dispute. [Par. 7.7, pp. 18- 19.] Here again, Respondent had previously contended that arbitration should be "advisory" only, and this change is a significant concession.54 50 These attacks on Corona because she presented grievances pursuant to the collective-bargaining agreement are themselves violations of Sec 8(a)(1) of the Act See Cooper-Jarrett, Inc, 260 NLRB 1123 (1982) How- ever, because they are not alleged in the complaint, nor urged as viola- tions in the briefs, I consider Zemba's statements only as factors in deter- mining whether Respondent bargained in good faith 51 Compare Borg-Warner Corp, 198 NLRB 726 (1972) 58 NLRB v Pacific Grinding Wheel Co, 572 F 2d 1343, 1348 (9th Cir 1978) ss NLRB v Herman Sausage Co, 275 F 2d 229, 232 (5th Cir 1960) 54 According to the record, Zemba was considering this change in po- sition as early as July 3 1043 The General Counsel recognizes these concessions, but also points out (Br. 21) that Respondent also offered lan- guage in the clause on grievance procedure (art. VI) that continued to restrict the Union's right to file a grievance on behalf of an employee or employees. More specifical- ly, the language at issue reads as follows: The right of the Union to submit a grievance is lim- ited to provisions delineating rights of the Union which are not appropriate topics for a grievance by an individual bargaining unit member . . . . There appears little question that this language in Re- spondent's final offer would, if implemented, unlawfully restrict the Union's role in the filing of grievances.55 Looking finally to what was perhaps Respondent's most adamant position, "past practice," note that the par- ties do not address this in the briefs as it relates to the issue at hand. At 559 of its brief, Respondent opines that there was little or no dispute between the testimony of Randall and Zemba on this subject. Both agreed that Zemba repeatedly objected to it and that he did not want to be bound by his predecessor's past practices. The evidence does not reflect that Respondent retreated from this position in submitting its final proposal. In reviewing all the evidence relating to this difficult issue, I find that although the matter is not free from doubt, the General Counsel has not proven by a prepon- derance of the evidence that Respondent bargained in bad faith. I find that this case reflects hard bargaining on both sides.56 Although Zemba's attacks on the Union and Corona cannot be condoned, there is no evidence that such at- tacks were calculated to disrupt the negotiations or that they did so. Corona was not an active member of the Union's team and Randall and Yelkey did not testify, nor does the other evidence so indicate that such attacks pre- vented the negotiations from going forward. Moreover, Zemba was replaced by Puffer as the Respondent's lead negotiator toward the latter half of the negotiations. I also note the positive factors of the negotiations as re- viewed above. As to the bargaining proposals, I am impressed by the 11th hour modifications made by the Respondent in its final proposal. These changes seem to me consistent with Respondent's desire to reach an agreement .54 Although I agree with the General Counsel that Respondent's at- tempt to curtail the role of the Union in the grievance article bespeaks of bad-faith bargaining.58 The General 55 See Latrobe Steel Co, 244 NLRB 528, 533 (1979), enfd 630 F 2d 171 (3d Cir 1980) 86 See Chevron Chemical Co, 261 NLRB 44 (1982) 67 In reviewing all the evidence on a good-faith bargaining issue, I weigh Respondent's latter actions more heavily than earlier actions As the Supreme Court has stated, "An employer is not required to lead with his best offer, he is free to bargain." NLRB v. Katz, 369 US 736, 745 (1962) Based on this authority, I reject any claim by the General Coun- sel (Br 24-25) that even though modified later , Respondent's manage- ment rights and advisory arbitration proposals as originally constituted are evidence of Respondent's bad faith 58 Adhering to an untenable legal position during the course of negoti- ations is inconsistent with the obligation to bargain in good faith NLRB v Mar-Len Cabinets, 659 F.2d 995 (9th Cir 1981) 1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel forgets a key factor that, on balance, saves the day for Respondent. I have found as a matter of credibility that it was Yelkey on behalf of the Union who demanded Respond- ent's final offer. But for this condition , and the subse- quent strike, there is every reason to believe, in light of two other significant modifications, that Respondent would have modified its position with respect to the Union's role in the filing of grievances if bargaining had continued. My conclusion that Respondent has not bargained in bad faith is not affected by Zemba's purported declara- tion of an impasse on August 25 (G.C. Exh. 11). Here the Union made no effort to test the finality of the Union's position before going out on strike. Under the circumstances present here, the Respondent was justified in believing that the Union was not interested in any fur- ther negotiations. Use of words like "impasse" by the parties even relating to overall issues do not necessarily imply that future bargaining would be futile, and are not necessarily binding legal conclusions . 59 Indeed, subse- quent to the strike, bargaining did occur here. In sum, merely because Zemba purported to declare an impasse, I do not find that the objective evidence supports that conclusion. The facts of the instant case should be compared to those in Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964). The employer in the above-cited case offered a proposal that would have restricted the Union's role in the prosecution of griev- ances to those complaints which had been signed by indi- vidual employees. The Board's decision in this case80 found several aspects of Respondent's behavior to have been unlawful, but also found that the totality of Re- spondent's conduct did not show guilt of bad-faith bar- gaining.81 The court never specifically reviewed this aspect of the Board's ruling. However, the court did uphold the Board's position in finding certain violations of Section 8(a)(5) of the Act by the Employer. Some of the court's statements are helpful to the present case. For example, the court stated: Non-mandatory subjects [of bargaining] may lawful- ly be included in collective-bargaining contracts if the parties agree. Thus, the mere proposal of the grievance-and-arbitration system is not unlawful. The court also held that modifi- cation of the grievance system in that case, very similar to that proposed here, was a nonmandatory subject of bargaining. Finally, the court held that insistance on a nonmandatory sbject of bargaining was a per se violation of the duty to bargain. Again, this finding is not incon- sistent with an overall finding of good-faith bargaining- such as made by the Board and such as I have made here. I note further that Respondent is charged with bad- faith bargaining by insisting to impasse on a nonmanda- tory subject of bargaining. However, I have found that sa Ptllowtex Corp., 241 NLRB 40, 46 fn. 11 (1979) 60 136 NLRB 1500 (1962) 61 See earlier decision in the same case at 133 NLRB 1347 (1961) Respondent did not insist to impasse on a nonmandatory subject of bargaining. D. The Alleged Unlawful Refusal to Execute a Collective-Bargaining Agreement and Alleged Bad- Faith Bargaining (Postcommencement of Strike)62 1. The facts As noted above, the strike began at 12:01 a.m., on August 23. According to Randall, there were two to three subsequent negotiating sessions called by the Fed- eral mediator. Because Randall had no notes to refresh his recollection-it is not clear if he or anyone else took notes-Randall was somewhat vague . The first meeting occurred in late September or October and only strike- related events were discussed. Then in November, an- other meeting was held. At this meeting, Puffer on behalf of Respondent, presented a proposal to the Union (G.C. Exh. 12). This proposal raised questions regarding the Company's position on grievances. The Company also made another change that was not subject to inter- pretation. Respondent proposed that only employees hired after the effective date of the agreement would have to become union members as a condition of em- ployment. A current employee not in the Union on the effective date of the agreement was given the option to join the Union . Randall testified to Puffer's explanation for this change: because of the activities of the strikers, the nonstrikers would never want to work with them or want to be part of their union any longer. On December 23, the Union sent a letter to Puffer asking him to clarify Respondent 's position as to whether it concedes "the arbitrability of grievances dealing with 62 On October 22, Respondent, by its attorney, Josiah Neeper, entered into an informal settlement of Cases 21-CA-19497 and 21-CA-19542 The agreement contains the standard nonadmission clause and reads in pertinent part as follows NOTICE TO EMPLOYEES WE WILL NOT refuse to bargain collectively in good faith with the SAN DIEGO AFL-CIO BUS DRIVERS LOCAL DIVISION 1309 OF THE AMALGAMATED TRANSIT UNION in the fol- lowing appropriate unit All employees of the Employer; excluding all office clerical em- ployees, professional employees, guards, watchmen and supervi- sors as defined in the Act WE WILL NOT unilaterally, without giving the Union an oppor- tunity to bargain, change our health insurance plan WE WILL NOT threaten to deprive our employees of their right to Union representation because they engaged in a strike, or other protected concerted activities WE WILL immediately bargain collectively in good faith with the Union as the exclusive bargaining representative of our employ- ees in the above bargaining unit and if an agreement is reached will embody such agreement in a written, signed contract WE WILL make whole, with interest, any employee who suffered any losses as a result of our unilateral adoption of the new health plan. WE WILL, upon an unconditional offer to return to work, offer all of our employees who went on strike on or after August 23, 1980, immediate and full reinstatement to their former positions, disrmss- ing, if necessary, any person hired on or after that date AZTEC BUS LINES, INC [Employer] [G C. Exh 131 AZTEC BUS LINES discipline and discharge or not." (G.C. Exh. 14.)63 In re- sponse to this letter, Puffer called Prochazka to say that the letter was being referred to Josiah Neeper, Respond- ent's attorney . 64 Subsequently, Neeper called Prochazka to say that he would be responding in writing to the De- cember 23 letter. On January 7, 1981, Neeper wrote to Prochazka stat- ing in part that subsequent to the effective date of a new agreement, discipline and discharge would be subject to arbitration under the "just cause" standard. (G.C. Exh. 15.) On February 23, 1981, David Moore , president of the Union, wrote to the Federal mediator asking that a meet- ing with Respondent be arranged for the purpose of pre- senting a union counterproposal . The letter also repre- sented that from that time forward, the Union would be represented by counsel , Prochazka. (G.C. Exh. 16.) A meeting for March 12, 1981, at 2 p.m. was scheduled for the office of the Federal mediator. That morning of March 12, Prochazka received a letter from Neeper. It reads as follows: Richard D. Prochazka, Esq. Domnitz & Prochazka 3061 Fourth Avenue San Diego, CA 92103 Re: Aztec Bus Lines Dear Mr. Prochazka: Aztec Bus Lines will be meeting with Local 1309 tomorrow at FMCS at 2:00 P.M. for the purpose of further bargaining. The purpose of the meeting originally was for the Employer to receive a new proposal from the Union. In preparing for the meeting the Employer finds that its position has changed since the time of its last proposal because of changed circumstances. Its changed position will be reflected in its response to the Union's proposal. Very truly yours, /s/ Josiah L. Neeper For GRAY, CARY, AMES & FRYE cc: Ms. Ellen Harrison Mr. Thomas R. Puffer [G.C. Exh. 17.] In his testimony, Neeper explained that by "changed circumstances," he referred to picket line misconduct of strikers that might disqualify them from returning to work on termination of the strike. He also meant that a large number of replacement drivers had been hired and they might wish to retain their jobs after the strike, so there might not be enough work for them and the re- turning strikers. Finally, Neeper meant that the replace- ment drivers might be required by a union-security pro- 69 This letter was drafted by Attorney Richard D. Prochazka, a wit- ness at hearing, and cocounsel for the Charging Party Union during the hearing 64 Like Prochazka, Neeper testified at the hearing on the subject of poststrike negotiations He is a law partner of Respondent's counsel at hearing 1045 vision to join the Union, thereby subjecting themselves to union discipline. At this meeting, March 12, 1981, the union representa- tives were Prochazka, David Moore, by then president of the Local, and Ed Reed, then vice president. Repre- senting the Employer was Neeper, who stated he would be the spokesman for the Company, Puffer, and Harri- son. Federal Mediator Taylor was also present. Neeper began by acknowledging that the original pur- pose of the meeting had been to receive the union pro- posal. However, Neeper then referred to the "changed circumstances" as mentioned in the letter and stated that at a subsequent meeting , Respondent would be present- ing proposals consistent with the "changed circum- stances." At this point, the Union tendered a proposal, dated February 20, 1981, which Prochazka had not par- ticipated in preparing (G.C. Exh. 18). In this proposal, the Union made certain minor changes in the Company's November 6 proposal (G.C. Exh. 12), rejected the union- security subclause that would have exempted nonstriking employees from becoming members of the Union, and essentially accepted the proposed grievance-and-arbitra- tion article of the General Counsel's Exhibit 12. On many articles, the Union proposed that language from the old contract (G.C. Exh. 2) be used in the new. After receiving the Union's proposal, the Company's team caucused to review the contents thereof; on return- ing, Neeper had a few questions about certain sections. Neeper again stated that the Company would be making a counterproposal based on changed circumstances. After another short caucus, Neeper stated that the present members of the Company's team would consti- tute its negotiating committee for the foreseeable future and Neeper specifically stated that Zemba would not be participating. Neeper and Prochazka arranged for another meeting, which was held on March 26, 1981, and further agreed that the Federal mediator would not attend any further meetings. Subsequent meetings were held at the media- tor's office, however. Present for the Union at this meet- ing were Prochazka, Moore, Reed, and two other union officials named King and Pedegrew. The Company was represented by Neeper, Harrison, and Puffer. Neeper presented the Company's proposal, dated March 26, 1981. (G.C. Exh. 19.) Among other provisions of the General Counsel's Ex- hibit 19 were "Sections 9.7, 9.8, 9.9, and 17.8 per attach- ment. Strike resolution and striker return provisions to be negotiated." According to Neeper, only these sections were a response to the "changed circumstances" referred to in the General Counsel's Exhibit 17. All other provi- sions were added as a result of union concern or ques- tions expressed at the prior meeting . These sections read as follows: 9.7 When time off exceeds three months , at the expense of the company, before an employee resumes normal duties, the company will require a physical examination by the company physician in accord- ance with 391 . 1(a) of the Federal Motor Carriers 1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Safety Regulations, and 82.7 of Calif. Highway Patrol Manual. The employee must pass this physi- cal in order to resume work; 9.8 When time off exceeds thirty (30) days, before an employee resumes normal duties he/she must requa- lify on all types of equipment for which he/she was qualified prior to time off. Requalification require- ments will conform with the qualification require- ments set forth in company training schedules. Re- qualification will be done according to the availabil- ity of instructors and the company work load. 9.9 When time off exceeds three (3) months, before an employee resumes normal duties he/she must submit a current updated Dept. of Motor Vehicles print out. The foregoing requirements can be found covered in detail, in the Driver's Manual. 17.8 The Company shall bear the entire cost of any DOT renewal physical or any other examination re- quired by company to which any employee is re- quired to submit, in accordance with 391.1(a) of the Federal Motor Carriers Manual, and 82.7 of the Calif. Highway Patrol Manual. These examinations are to be performed by the company physician. According to Prochazka, the Union caucused after re- ceiving the Company's proposal. Both sides agree that after the caucus, a discussion ensued, but there are cer- tain conflicts as to what was said. a. As to sections 9.7, 9 8, and 9.9 These proposals were newly mentioned by the Compa- ny. Prochazka testified that Neeper stated that the U.S. Department of Transportation (DOT) required them to be put in. Neeper testified that the purpose of the sec- tions as related to him by company officials was, as to section 9.7, the result of a recommendation by the Com- pany's medical expert as a way to keep the Company's workman's compensation and accident insurance costs down; as to section 9.8, to ensure that an individual off the job for any extended period had not lost necessary driving skills; as to section 9.9, to preclude employees with bad driving or criminal records. All these reasons were communicated in substance to the Union. In light of other testimony by Harrison and Flo Ybarra, a super- visory employee of Aztec that, pursuant to recommenda- tions of consultants employed by an industry trade group, Respondent had been using substantially the same procedures in sections 9.7, 9.8, and 9.9 since October or November, I find that someone on Respondent's side told the Union that the DOT required these changes. This is not to discredit Neeper necessarily, as his addi- tional rationale may well have also been related to union officials. All agree that the Company intended these pro- visions to apply to returning strikers and Neeper so stated to the Union. As to whether Neeper also added, "[W]e're sure the Union will have counterproposals in that regard," as testified to by Prochazka, I do not be- lieve that an experienced labor negotiator would have made such a remark and I find that he did not. Not only was it impolitic, but inconsistent with the stated purpose of the proposals. b. As to the reference after section 9.9 to a driver's manual All agree that Prochazka asked about the manual. He recalls Neeper deferring to Harrison who answered that the manual did not then exist, but was being worked on with the nonstriking drivers. When it was ready, the Union would receive a copy. Harrison denied making any such statements to Prochazka, testifying that she an- swered the latter's inquiry by replying that certain super- visory personnel were working on it, such as Schultz, herself, and others. Neeper also recalls that either he or Harrison answered the question posed by stating that su- pervisory personnel were working on the manual. I credit the testimony of Neeper and Harrison here as it makes no sense that replacement drivers, many of whom were of short tenure, would be working on a driver's manual, nor do I believe that Neeper would have acqui- esced in such an imprudent statement, at least not with- out further clarification. c. As to the striker return and strike resolution provisions Prochazka made little or no reference to this subject as a topic of conversation. Neeper testified that in his expe- rience in a strike situation while the Company continues to operate, the Union commonly has substantial contract demands with respect to taking strikers back and resolv- ing the strike, as an aspect of reaching agreement. As to the specific language in question, Neeper testified that he stated the Company anticipates that the Union will make demands in this area and the Company expects to do the same as part of a final agreement. Then, either Randall or Prochazka nodded in understanding of what was said, if not agreement with it. Harrison's account of this con- versation generally corroborated Neeper's; moreover, Harrison's notes (R. Br. 50, last page) reads: Neeper . . . further states the intent for strike return and other provisions that he has presented are to be neg. Other words bet N and Pr exchanged on lawyer level. In light of the above circumstances, I credit Neeper's ac- count of this conversation and find that the matter was indeed discussed as indicated above. I further believe Prochazka would have made inquiry about a matter of critical importance to the Union whose members had been on strike since August 23. On April 2, 1981, the parties met and the Union pre- sented its proposed modifications of sections 9.7, 9.8, and 9.9 (G.C. Exh. 20); Respondent caucused and Neeper in- formed the union representatives that the proposed modi- fications were rejected. Then Prochazka wrote out modi- fications of sections 9.7 and 9.9 that Neeper accepted. AZTEC BUS LINES (G.C. Exhs. 21, 22.) This was signified by Prochazka's notation "OK 4/2/81" on the lower right corner of each document. The Company refused to change its position as section 9.8. Next, the Union caucused and, on return, referred to their November 6 proposal (G.C. Exh. 12). On page 23 of that document, section 19.2, "Notice of Termination," the document read: If either the Union or the Company desires to change or terminate this Agreement on [June 30, 1983, is written in; Prochazka testified that his copy was blank as to the date]. . . . If the parties have failed to reach a settlement by [June 30, 1983 again is written in; Prochazka's copy was blank] ... . Prochazka asked Neeper what date should be inserted into the two blanks. Neeper responded, "the date of con- tract termination," without reference to a specific date. Again there is a conflict between the testimony of the lawyers. Neeper, supported by Harrison, stated he re- ferred to specific proposals that the Company desired to receive from the Union and desired to make on its own with respect to striker return and striker resolution. I again credit this testimony for the reasons previously stated regarding conflicts in testimony between Pro- chazka and Neeper. The parties broke for lunch with the intention of reas- sembling for an afternoon session. During lunch the union representatives met with Yelkey to discuss negotia- tions. Later Prochazka called Neeper and canceled the afternoon session, stating, "The International is unhappy with what we've done. They don't want us to met [sic] with you this afternoon." The two lawyers then agreed on another meeting for April 9, 1981, at 8:30 a.m., and Neeper confirmed this date with Puffer and Harrison. Meanwhile, the union team spent the afternoon of April 2 conferring with Yelkey. After this, a meeting of the general membership was called for the evening of April 3, 1981. At this meeting, Prochazka and the union team presented to the membership the Aztec proposal of November 6, as modified by subsequent negotiations. After discussion, the membership took two votes. First, the membership voted to offer to return to work; second, the membership voted to accept the proposal as it was explained by the bargaining team. In anticipation of the vote results, two letters had been prepared prior to the meeting. One of these letters purported to make an un- conditional offer to return to work, and the other pur- ported to accept Respondent's offer. (G.C. Exhs. 23, 24.) Only the second need be recited here and it reads as fol- lows: SAN DIEGO BUS DRIVER UNION A.F.L -C.I.O. Amalgamated Transit Union 7851 Mission Center Court, Suite 115 San Diego, CA 92120 Attention: Gus Zemba Re: Acceptance of your Collective Bargaining Offer of April 2, 1981 1047 Dear Mr. Zemba: Without waiving any rights which Local 1309 or its members may have under the National Labor Relations Act and under National Labor Relations Board Case Nos. 21-CA-19497, 21-CA-19542, and 21-CA-20033, Local 1309 hereby accepts your pro- posal for a written Collective Bargaining Agree- ment as that proposal was made November 6, 1980, restated on March 26, 1981 and subsequently modi- fied on April 2, 1981. Local 1309 views strike resolution and striker return provisions as issues separate and apart from the provisions of a Collective Bargaining Agree- ment. We are satisfied with the way those issues have been resolved by the National Labor Relations Board. If, however, you desire to meet to discuss those subjects independent from the terms of the Collective Bargaining Agreement, representatives of Local 1309 are prepared to do so. In that regard you will note that by separate letter you are receiving an unconditional offer to return to work. That offer is not conditioned on your response to this letter. Very truly yours, /s/ David H. Moore, President Local Division 1309 DHM: chs opeiu: 139 afl-cio, clc [G.C. Exh. 24.] On April 6, 1981, David Geerdes, an attorney for Re- spondent, sent a letter to Prochazka acknowledging re- ceipt of the Union's April 3 letter referred to above. The final paragraph of Geerdes' letter reads: There is currently scheduled a negotiating session for Thursday, April 9, 1981 at 8:30 A.M. We would appreciate being provided at that time with a com- plete copy, ready for signature, of the agreement which Local 1309 has purportedly accepted. [G.C. Exh. 25.] On the same date, Geerdes sent a letter to the Union re- questing the names of all Aztec employees who the Union contends were still on strike. (G.C. Exh. 26.) This letter was answered on April 7 by a letter from the Union to Geerdes with the names of approximately 114 employees who were "presently engaged in the Aztec strike." On April 8, 1981, Prochazka caused delivery of a document that the Union contended was the contract that they had accepted (G.C. Exh. 28). Through inad- vertence, a side letter regarding past practice was omit- ted, but was provided to Geerdes at the meeting on April 9. (G.C. Exh. 28a.)65 On April 9, 1981, the Union and Respondent negotiat- ing teams headed by Prochazka and Neeper respectively conferred at the office of the Federal mediator After re- ceiving the missing side agreement on past practice, the 85 In this side letter , the Union basically accepted Zemba's position that he would not be bound by past practices of pnor management except to the extent specifically set forth in the basic agreement 1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Company took the position that there had been no agree- ment reached previously because the matters of strike resolution and striker return had not been resolved. Neeper also indicated that although he had not had a full opportunity to review the proffered contract, he did note that the blanks in section 19.2 on page 63 of the Novem- ber 6 Aztec proposal had been filled in. The Union's position was that the matter of strike res- olution and striker return were resolved by the Union's letter offering to return to work unconditionally and by charges already filed with the NLRB by that time. That is, the Union desired the Board to decide which employ- ee would return to work. As to the insertion of the dates, Prochazka admitted doing this, saying the dates coincided with the printed dates in section 19.1 as to the date of termination, June 30. Prochazka did indicate a willingness to listen to company proposals with respect to striker return and striker resolution, but the Union still thought the NLRB was the proper body to resolve those issues. To the extent the Union might entertain proposals on the two strike issues, its position was that any agree- ment reached would be separate and distinct from the purported agreement. Neeper refused to sign the proposed collective-bar- gaining agreement, but indicated that at a future meeting the Company would have proposals to make with re- spect to the two strike issues. The parties ended the meeting agreeing to meet again at the same place on April 14. The parties met again on April 14, 1981, with Harrison and Puffer arriving late. At this time, Neeper handed Prochazka a one-page document purporting to summa- rize each side's position. The document reads as follows: Presentation of AZTEC BUS LINES of April 14, 1981 ABL made a proposal on March 26, 1981. Part of that proposal was Strike resolution and striker return provisions to be negotiated. The Union has since informed us that the Union claims that a collective bargaining agreement now exists between ABL and the Union. The Union has further informed us that any proposals by ABL re- lating to strike resolution or striker return as con- templated by the employer when it made such pro- posal would not be mandatory subjects of bargain- ing and would unlawfully interfere with consum- mating the collective bargaining agreement. ABL disputes both assertions by the Union, and finds that the Union's position places the employer in a difficult if not impossible position as to further negotiations as it contemplated. ABL made proposals relating to employees who had been away from active work for the company for prolonged periods of time. These proposals re- lated to such things as notice, print-out, physical ex- amination to meet physical requirements, requalifi- cation and what work individuals would be brought back to and when. The company indicated that such provisions would apply to strikers as well as others, but that striker return in a group would present special problems so calling for special discussion. All this was heard by the Union without objec- tion. Also the employer had in mind the matter of re- solving amicably who was entitled to return to work and who was not. Reasons for not being enti- tled to return to work would include resignation, abandonment of the strike for other employment, lack of physical or other qualification, conduct by individuals constituting cause to prohibit their return to work, among others. The employer is willing and desirous of bargain- ing to agreement on these matters as it originally, and obviously, contemplated. If the Union is willing to bargain on these mat- ters similarly, then the Employer is willing to con- sider Union proposals in the areas. The Employer would be willing to proceed to make proposals in all those areas originally contemplated by it on March 26. Those areas it has pointed out here, would appear to be those most pressing. [G.C. Exh. 29.] After reviewing this document, Prochazka reiterated union policy, that it would bargain over strike issues only with the understanding that any agreement would be separate and apart from the basic agreement . After a caucus, Neeper furnished a written proposal to the Union that suggested a series of meetings to consider groups of strikers from the Union's list of April 7, 1981, and possible agreement on which of the strikers was eli- gible to return to work. (G.C. Exh. 30.) The Union rejected this proposal, since it again con- tended the NLRB should decide who is eligible to return to work. The Company then caucused again and re- turned with another proposal asking that the Union make available each returning striker to company representa- tives so the Company could properly investigate that person's eligibility to return to work. (G.C. Exh. 31.) To this proposal, the Union countered with one of its own. As to each returning striker, the Company would submit written requests for information and the Company would make replies it considered appropriate. (G.C. Exh. 32.) After some additional dialogue, in which Neeper again refused to sign the agreement, and said there were no mechanical or clerical errors other than those indicated at the last meeting, the meeting ended. No further bargaining sessions were scheduled nor held. However, some subsequent correspondence is rele- vant. On April 14, an Aztec attorney asked the Union for certain employment information about the strikers who desired to return to work. (G.C. Exh. 33.) On April 21, Respondent offered in writing to reinstate 28 striking employees on condition that they comply with company requirements dealing with physical examinations, job re- qualification examinations, and motor vehicle driving records. (G.C. Exh. 34.) These requirements were taken AZTEC BUS LINES from sections 9.7, 9.8, and 9.9 of the contract documents. (G.C. Exh. 34.)86 2. Analysis and conclusions (alleged unlawful refusal to execute the contract) The first question to be resolved is whether Respond- ent reached agreement with the Union and unlawfully refused to execute the contract. I begin with basic princi- ples which are not subject to dispute. In Pacific Coast Metal Trades Council (Foss Shipyard), 260 NLRB 1117 (1982), Administrative Law Judge Pollack, in a Board- approved decision, stated the following: Section 8(d) of the Act explicitly requires the execution of a written contract incorporating any agreement reached if requested by either party. H. F. Heinz Co. v. N.L.R.B., 311 U.S. 514, 523 (1941); Retail Clerks International Association, and Retail Store Employees Local 322, Jack Gray and Glen Conyers their agents (Roswil, Inc., d/b/a Ramey Supermarkets), 226 NLRB 80, 87 (1976). However, neither party is required to sign a bargaining agree- ment containing terms not previously agreed upon. The General Counsel must show not only that an agreement was reached, but that the document which Respondents have refused to execute accu- rately reflected that contract. Oil Chemical and Atomic Workers International Union and its Local 7- 507 (Capitol Packaging Company), 212 NLRB 98, 108 (1974). When an oral agreement is reached as to the terms of a collective-bargaining contract, each party is obligated, at the request of the other, to execute that contract when reduced to writing, and failure or refusal to do so consti- tutes an unfair labor practice. Oil Workers Local 7-507 (Capitol Packaging), 212 NLRB 98, 107-108 (1974). But where there is no meeting of the minds as to essential terms of an agreement that may be traced to ambiguity for which neither party is to blame, there is in effect no contract which the parties can be directed to execute. Id. at 107-108, quoting from Restatement, Contracts, § 501 (1932). In this case, the issue turns on a fair construction of the language, "Strike resolution and striker return provi- sions to be negotiated," which was first proposed by the Company on March 26, 1981.67 In its brief at 570-574 66 Certain other correspondence was exchanged between April 23 and 27, 1981, dealing with notice to returning employees or preservation of legal theories (G.C Exhs 35, 36, and 37 ) 67 I agree with the General Cousnel that inclusion of the date, "June 30, 1983," into two blank spaces is of little or no significance in this case First, I find that Neeper, in effect, agreed on that date by telling Pro- chazka that the date to be inserted should be the date of contract termi- nation Even without this agreement, I look to sec. 19.1, p. 63, of G.C Exh. 12 (Aztec proposal of November 6): Effective Date & Expiration This agreement and all letters of understanding (covering this agree- ment period) shall be in force and effect from (Date of ratification by the Union) through June 30, 1983 subject to 19 2 I next compare Sec 19 1 with Sec 19 2 which reads as follows- 1049 and 600-605, Respondent seems to recognize this issue as central to the basic question as to whether Respondent reached agreement with the Union. All agree that the issues of striker discipline and strike resolution not only were not resolved, but were barely discussed. The General Counsel and the Charging Party contend that the Union desired the issue to be left to the Board as a result of charges filed on April 9, 1981 (G.C. Exh. le, original charge in Case 21-CA-20162), 1 day after the General Counsel's Exhibit 28 was tendered to the Company for execution. Respondent desired the issue to be settled by negotiations before a final proposal was agreed to. I find for the reasons stated below, that on April 3, 1981, the Union and the Respondent reached agreement on all substantive issues. In support of this conclusion, I begin with the case of Georgia Kraft Co., 258 NLRB 908 (1981). In that case, the Board reversed the administra- tive law judge's finding that no agreement had been reached between the employer and the union because the union did not intend to accept the respondent's "propos- al" on striker discipline even though the judge assumed that "proposal as to striker discipline was part and parcel of the ongoing contract negotiations." Contrary to the judge, the Board held that the issue of striker discipline was not presented by the respondent as a bargainable proposal nor was it put forth as a quid pro quo for agreement on a contract. I find in this case that Respondent never proferred as a bargainable proposal the issues of striker discipline nor strike resolution. Respondent anticipates this holding in its brief at 590 and attempts to refute it by reciting Neeper's rationale given at hearing. Although I recog- nize the reasons given by Neeper for desiring the Union to make the first substantive proposals,68 neither party 19 2 Notice of Termination If either the Union or the Company desires to change or terminate this Agreement on June 30, 1983 written notice by registered mail must be given to the other party not later than sixty days prior to the termination date, date of postmark to govern If such notice is given the parties shall meet as necsssary for the purpose of negotiat- mg or any proposed amendments or modifications If the parties have failed to reach a settlement by June 30, 1983 or any subsequent expiration date, this Agreement shall continue in full force and effect, subject to termination by either party upon two weeks prior written notice. Upon the expiration of any such notice period the Union shall have the right to strike and the Company shall have the right to lock out, and this Agreement and all rights and claims here- under shall thereupon be of no further force or effect. AZTEC BUS LINES A C ZEMBA, President AMALGAMATED TRANSIT UNION Donald R. Randall, President From this comparison , I find that the Union was merely making explicit what was implicit from Sec. 19.1. In any event, minor discrepancies as to dates are not substantive differences that will preclude a finding that an agreement has been reached. Trojan Steel Corp, 222 NLRB 478, 483 (1976), enfd. 551 F 2d 308 (4th Cir 1977) 68 Neeper's reasons are as follows. so as not to take a final position and eliminate flexibility or movement in position ; (2) bargaining goes better if the Union takes a position and the Company responds , (3) so that the Company did not give away anything in the subject area where the Union generally makes the initial demands 1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD can force the other to be the first to make substantive proposals. Indeed, if Respondent had succeeded, it might well be arguing that the Union had waived the right to make the argument it makes in its brief, i.e., that the strike issues were for the Board to determine . A party's subjective notion of the most efficient and convenient method of bargaining for that party cannot determine whether a contract has been reached . Indeed, it is hard to see how this concept is relevant at all. Another helpful case is Fitzgerald Mills Corp., 133 NLRB 877 (1961), enfd. 313 F.2d 260 (2d Cir. 1963), cert. denied 375 U.S. 834 (1963). There, the employer's attorney insisted that before any contract could be nego- tiated, the union would have to agree to the respondent's proposal with respect to strikers . The proposal would have required the union to waive the reinstatement rights of the strikers and was tantamount to insistence that the union abandon its unfair labor practice charges in order to finalize a bargaining agreement. In holding that a union cannot waive the reinstatement rights of its mem- bers, the Board held that such a demand constituted bad- faith bargaining, an issue I will discuss further below. Unlike Fitzgerald Mills, where there was no claim that the parties had in fact reached agreement, there is such a claim here. Accordingly, because Respondent never pre- sented a valid bargainable proposal and because , if a bar- gainable proposal was presented , it was an unlawful at- tempt to coerce the Union into abandoning its right to petition the Board, I find that Respondent violated Sec- tion 8(a)(5) of the Act on April 9, 1981, and thereafter, when it failed and refused to execute the agreed-upon contract. 69 Finally, I note that the Charging Party and Respond- ent discuss the instant issue in terms of whether the Re- spondent insisted to impasse on a nonmandatory subject of bargaining. In light of the analysis above , it is not es- sential to consider this dispute in that context. However, certain elements are beyond contention . I agree with the Charging Party (Br. 22-23) that any attempt to require a union to waive its members' right to reinstatement, or to waive the Union's right to the Board's processes, is an unlawful subject of bargaining. I further agree that an employer may not bargain to impasse over an illegal sub- ject. 7 ° In this case, the Respondent's position is even weaker than it might appear at first blush , for not only did Respondent bargain to impasse over an unlawful sub- ject, but it furthermore insisted to impasse that the Union make the first substantive proposals , after Respondent merely put the subject on the table. I have reviewed the cases cited by Respondent and find they are neither rele- vant nor helpful to its position. 3. Analysis and conclusions Alleged bad-faith bargaining after strike began: As noted in footnote 29, supra, the General Counsel amend- ed the complaint at the hearing to allege bad-faith and surface bargaining from November 6 through April 9, 9 Georgia Kraft Co, supra. See also Trojan Steel Corp, 222 NLRB 478 (1976). 70 NLRB v. Borg-Warner, 356 U S 342 (1958), Harlan, J concurring at 360 1981. An allegation of bad-faith surface bargaining is nei- ther negated nor mooted by the fact that the parties have reached an agreement, as I have found above .7 1 Howev- er, I note as factors supporting the allegations of bad- faith bargaining, the refusal of Respondent, on April 9, 1981, to execute a contract embodying the agreement reached with the Union.72 In further analysis of this issue, I turn now to the evi- dence regarding Thomas Ingersoll. Ingersoll was a member of Respondent's prestrike negotiating team, al- though not an active participant. The General Counsel and the Union contend that in January and February 1981 Ingersoll was a statutory supervisor or otherwise an agent of Respondent. It is important to resolve the issue regarding the employment status of Ingersoll, because of certain remarks he is alleged to have made during the time in question. Dewey Bandy had been a student worker with San Diego Transit Systems during January and February 1981. Bandy and Ingersoll worked together, making time checks on buses, reviewing bus routes, and monitoring compliance of Respondent with the contract it had at this time to supply public transit services to a section of San Diego County. According to Bandy, the two en- gaged in several conversations over the weeks they worked together. In five of these covnersations Ingersoll made remarks damaging to Respondent in this case. In February 1981, the witness and Ingersoll were having a general conversation in a local coffeeshop. In- gersoll stated to Bandy that no way would the strikers come back. The Company had structured its contract ne- gotiations so as to prevent the Union from reaching agreement with the Company. The open-shop provision was something the Union could never accept and it had been put into negotiations specifically to keep the Union from negotiating a settlement. For the same reason, the Company had proposed splitting itself into three compo- nents: charter, transit, and schoolbus. Other proposals were also made for the same purpose. A second conversation occurred in February 1981, at a local restaurant, where the witness had lunch with Inger- soll. There, Ingersoll stated the Company felt it needed to get rid of the Union to operate the Company efficient- ly. Then Ingersoll restated his earlier remarks that no strikers would be taken back and that the Company had structured its negotiations to prevent the Union from reaching agreement. Finally, Ingersoll again referred to the open-shop proposal and the change in the Company's structure into three divisions-both of these remarks in the same context as before. In early March 1981, the witness and Ingersoll were driving to a nearby suburb where the third conversation occurred. At this time, Ingersoll said that negotiations with the Union had fallen through in 1980. When this occurred, the Company made a decision to get rid of the Union and go with the employees it had. Ingersoll con- cluded his remarks by saying that the Union should have 7' Carpenters Local 1780, 244 NLRB 277, 280 (1979); San Isabel Elec- tncal Services, 225 NLRB 1073, 1079 (1976). 72 See NLRB v National Shoes, 208 F 2d 688, 692 (2d Cir 1953), Trojan Steel Co, supra at 483-484 AZTEC BUS LINES 1051 accepted the Company's offer back then, "because there's sure as hell no way they're going to come back now." The fourth conversation also occurred in March 1981, this time at San Diego County Operations Center where Ingersoll had gone to pick up some schedules and trans- fers. While there he met Bandy who sought to confirm a rumor he had heard that negotiations with the Union had resumed. Ingersoll answered that Bandy was correct, but then added, "But there's no way that any of those strik- ers are going to be coming back." Finally, in late March 1981, at a bus monitoring point called Parkway Plaza, Ingersoll again talked to the wit- ness. This was after a nonunion Aztec driver had ex- pressed concern about his job tenure in light of rumors that the Company was again negotiating with the Union. Ingersoll took Bandy aside and said that the Company had assured the nonunion drivers that neither the Union nor any of the strikers were coming back. Ingersoll testified at the hearing and denied making the above statements. In rebuttal, the General Counsel called another student employee named Jerry Kehoe. He could recall a certain conversation with Ingersoll relative to the strike and negotiations and with the exception of In- gersoll's statement about the Company being divided into three segments, could recall no other specifics of the conversation. Kehoe had very limited value as a cor- roborating witness. On balance, however, the credibility issue is not difficult. I find that Ingersoll made all state- ments attributed to him by Bandy. The latter was a disin- terested witness with no motive to fabricate. Also, the remarks of Ingersoll are consistent with other evidence regarding similar statements to be recited below. A closer question concerns the employment status of Ingersoll between January and March 1981. During this period, Ingersoll held a position as traffic coordinator, and sometimes referred to himself as transit supervisor. As of July 1981, Ingersoll became Chula Vista's traffic coordinator. In this role, Ingersoll was an admitted statu- tory supervisor responsible for operations of Aztec's transit operations in Chula Vista, a suburb of San Diego. Ingersoll was hired as director of maintenance, also an admitted supervisor. This job ended in June about the time negotiations with the Union started. Between June and January 1981, Ingersoll described his job as doing everything under the sun: night dispatcher, running er- rands, and assorted odd jobs that needed to be done, in- cluding guard duty. This job ended in January 1981, when Ingersoll became transit coordinator. In this posi- tion, Ingersoll reported to Schultz, director of oper- ations. Ingersoll's duties were to check bus schedules, make time checks of busdrivers' performance, review bus routes, and all this was done on San Diego County tran- sit operations. When a driver was late on his route, In- gersoll would sometimes request an explanation. This would be reported to Schultz on a daily basis, usually by written notes. Ingersoll was paid a salary, slightly more than he received as director of maintenance, and worked up to 60 hours per week. Ingersoll denied that he had power to hire, fire, or discipline employees. Nor did he make recommendations to Schultz. He merely reported the facts of a given incident to Schultz and, where disci- pline might be indicated, Schultz usually made his own investigation. In assessing whether supervisory status exists73 the specific job title of the employee is not in itself control- ling. Here, Ingersoll's title was "transit coordinator." He occasionally described himself as "transit supervisor."74 Supervisory power exists only if the power is exercised with independent judgment on behalf of management and not in a routine or clerical manner.75 The mere fact that Ingersoll's wages had been raised to a higher level does not suffice to establish supervisory status.76 In this case, I cannot find that Ingersoll possessed supervisory powers himself nor could he effectively recommend77 to Schultz or anyone else that certain action be undertaken. I must conclude that during the relevant period of time, the evidence presented does not show Ingersoll to have been a statutory supervisor.78 His duties consisted of making routine time and schedule checks and submitting reports to Schultz. I see no evidence of independent judgment. These duties were much like those that Bandy was performing. Surely, it could not be argued that Bandy, as a student intern, was performing work equiva- lent to that of an Aztec supervisor. Having decided that Ingersoll was not a statutory su- pervisor at the time in question, I must also decide whether the statements he made could be imputed to Re- spondent on any other theory. An employee's actions (or statements) may be imputed to his company regardless of supervisory status where the company places an employ- ee in a position that reasonably fosters the appearance and belief that he acts (or speaks) for management.79 In this case, the statements in question were made not to an employee of Aztec, but to Bandy, a third party. Accord- ingly, it does not appear that the many Board decisions holding an employer responsible for statements of nonsu- pervisory employees apply to this case.80 But for the 78 Sec 2(11) of the Act defined "supervisor" as follows The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer , suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effective- ly to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment 7* It is the actual duties and authority of the employee , not his formal title that is important NLRB v Quincy Steel Casting Co, 200 F 2d 293, 296 (1st Cir 1952) 75 Hydro Conduit Corp, 254 NLRB 433 (1981) 78 Victory Electric Corp Assn., 230 NLRB 1201, 1202 (1977) 77 To satisfy the statutory requirement that the power of recommenda- tion be "effective," there must be a showing that recommendations would have been in fact followed A Barton Hepburn Hospital, 238 NLRB 95, 96 (1978) No such showing was made here 78 At the hearing, much was made of Ingersoll 's duties as a night dis- patcher, a position he held prior to the period in question His duties there, as those in direct issue, were essentially routine in nature See Spec- tor Freight Systems, 216 NLRB 551, 554 (1975) Of course, I also question the relevancy of Ingersoll's prior status as a dispatcher. 7B NLRB v Berger Transfer & Storage Co., 678 F 2d 679 (7th Cir 1982) 80 See, e g, River Manor Health Related Facility, 224 NLRB 227, 235 (1976), enfd 562 F 2d 38 (2d Cir 1977), Wm. Chalson Co, 252 NLRB 25 (1980), Jules V Lane, DDS, PC, 262 NLRB 118 (1982). 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fact that the statements in question were made to a non- employee, I would find Ingersoll to be an agent of man- agement on this record.81 Notwithstanding the fact that the statements of Inger- soll cannot be imputed to Respondent, I nevertheless find that Respondent was guilty of bad-faith bargaining and surface bargaining. In making this fording, I rely on the refusal of Respondent to execute a contract, after agree- ing to terms, and the position of Respondent taken during poststrike bargaining that not only would the Union have to agree to terms on strike resolution and striker return, thereby waiving their right to file charges with the Board, but the Union would also be required to make the first substantive proposal on the strike issues. To these findings that I have made above, I also note that Respondent's proposals on resolving strike issues were designed and calculated to be unacceptable to the Union. The tendering of predictably unacceptable pro- posals by one party to another in contract negotiations is strong evidence of surface bargaining.82 Finally, I also rely on certain findings made below wherein Respondent is found to have violated Section 8(aXl) of the Act by having made certain statements to employees. For all the reasons stated, I find that Re- spondent has violated Section 8(a)(5) of the Act by bad- faith and surface bargaining subsequent to commence- ment of the strike. E. The Alleged Violations of Section 8(a)(1) of the Act The General Counsel has alleged in the complaint that during the course of the strike, Zemba and Flo Ybarra, a statutory supervisor, made certain statements to strikers that violated Section 8(a)(1) of the Act. Both Zemba and Ybarra have denied making the remarks attributed to them. Any statement of an employer or its agent to employ- ees that interferes with, restrains, or coerces employees in the exercise of their Section 7 rights violates Section 8(a)(1) of the Act. A finding that a violation has oc- curred is not determined by intent or actual effect; rather, the test is whether the particular conduct in ques- tion has a tendency to interfere with the free exercise of employee rights.83 With this standard in mind, I turn to the particular statements alleged. (1) Striker Frank Patton testified that on October 14, he was in a restaurant with Zemba and Dave Schultz in the morning hours. At this time, Zemba was upset due to strike violence that was occurring. I find that, as Patton testified, Zemba stated he would not negotiate with the Union as long as Corona, Yelkey, and Randall were leading the Union. Later in the same conversation, Zemba also stated he would not negotiate with the Union until everyone on the picket line stopped harass- ing Respondent's employees. 81 Thus, Ingersoll attended the contract negotiations as a member of Respondent's team; during the strike, he had several conversations with stokers that could be construed as emanating from a management figure, on April 23, 1981, at an arbitration hearing , Ingersoll described his posi- tion with the Company as transit supervisor and, along with Zemba, pur- ported to represent Respondent at the hearing 82 Gulf States Mfg Inc, 230 NLRB 558, 569 (1977) 83 Bell Burglar Alarms, 245 NLRB 990 (1979) In fording that Zemba made the statements, I note that although Schultz was called to testify about other mat- ters, he was never asked to t' ny the Patton conversa- tions. Moreover, as Respondent recognizes in its brief at 608-609, there was intense personal animosity between Zemba and the union officials. I have cited an example above, where Zemba attacked and disparaged Corona at a bargaining session before the strike started. Finally, I find that Patton was a credible witness. While he was a picket captain during part of the strike, he did not pro- voke in management the intense hostility that other strik- ers did. The sharing of a coffebreak on October 14 be- tween Patton and Zemba and Schultz is an example of this. Under Board law, an employer has no right to coerce employees in the selection of their collective-bargaining representatives. 84 Randall, Yelkey, and Corona were all on the Union's negotiating team and were not subject to removal by Zemba. In addition, an employer's duty to negotiate during a strike is not suspended. Even where picket line misconduct is occurring, an employer may not stop negotiating with the union. The appropriate remedy is to file charges with the Board" or to seek other administrative or legal remedies.86 (2) I also believe Tom Reynolds, a striker, who testi- fied that in February 1981, at the same restaurant re- ferred to above, Zemba stated that he was disappointed that Randall and Corona were still in positions of author- ity with the Union. Zemba denied the statements in issue and was supported in part by Harrison, who was also present. However, I cannot credit these denials. The pat- tern of attacks on union leadership expressed to union rank and file is striking.87 Also, I find that Reynolds was a credible witness on this point.88 I find that the statements referred to above in (1) and (2) made to strikers in the course of a long and bitter strike were designed and intended to coerce employees in the selection of their collective-bargaining representa- tives and therefore violated Section 8(a)(1) of the Act. (3) Reynolds also testified to a conversation in Decem- ber with Zemba at Respondent's place of business. At this time, Zemba showed Reynolds a copy of an article in the Labor Law Journal (G.C. Exh. 68) dealing with reinstatement rights of strikers. Then giving Reynolds 8* Cf. Racine Die Casting Co., 192 NLRB 529 (1971); Native Textiles, 246 NLRB 228, 229 (1979). 85 In fact, Respondent did this and the Union agreed to an informal settlement of these charges. (See G.C. Br 37 fn. 23.) 8a The only case that suggests an employer may suspend negotiations with a striking union where the strike is characterized by extreme vio- lence and vandalism is Kohler Co, 128 NLRB 1062 (1960), modified sub nom. Auto Workers Local 833 v. NLRB, 300 F.2d 699 (D.C. Cir 1962), cert. denied 370 U S. 911 (1962) Assuming without finding that the strike here was characterized by extreme violence and vandalism, the Kohler case is of dubious vitality. In the opinion of one authority, R Gorman, Basic Text on Labor Law, Unionization & Collective Bargaining, 438 (1976), Kohler has been superceded by two Supreme Court decisions, Drake Bakeries v. Bakery Workers Local 50, 370 U S. 254 (1962), and NLRB v Katz, 369 U.S. 736 (1962). Accordingly, Kohler does not help Respondent in this case. 87 In addition to detesting Corona because of her union office, Zemba also apparently objected strongly to Corona' s sexual preference , a subject he also addressed in this conversation with Reynolds. as See Cooper-Jarrett, Inc, 260 NLRB 1123 (1982). AZTEC BUS LINES 1053 the impression that he was basing his statement on the article, Zemba stated that anyone on the picket line when misconduct occurred or when he and Harrison were called names would not be returned to work when the strike was over. I find that this statement was made and violated Sec- tion 8(a)(1) of the Act. It was an erroneous statement of the law relative to reinstatement of strikers and it was also designed to coerce employees in the course of their protected activities.89 Attempting to make all pickets re- sponsible for the misconduct of one or few would effec- tively tend to break the strike, where any misconduct had or might occur. (4) The final allegation relates to a statement allegedly made to employees by Flo Ybarra, director of safety and training at the relevant time. According to Robert DeEs- trada, employed by Respondent in January 1981 as a school busdriver, Ybarra held a meeting for nonstriking employees in early February. At this meeting ostensibly called to discuss employee parking and a coming em- ployee party, Ybarra stated that the Union was finished and that the strikers would be given only part-time work when they returned from the strike. This was in response to a question from an employee concerned about his job tenure if the strike were to be settled. Ybarra denied making the statement in question, but I find that she did make the statement. DeEstrada worked for Respondent only a short time after this meeting. Al- though he was not involved in the passions of the pro- tracted strike, he was fired by Ybarra because of an acci- dent that DeEstrada had with an Aztec schoolbus. De- spite this possible motive to fabricate, I believed him. Moreover, Ybarra did not here or elsewhere in her testi- mony impress me as a credible witness. In discussing the return of the strikers referred to in paragraph 22(a) of the fourth consolidated amended complaint below, I will return to the question of Ybarra's credibility. It suffices to say for now that I cannot credit her denial. 90 I dis- credit Ybarra even though she was generally corroborat- ed by two nonstriking drivers, Michael Comfort and Ellen Huffman. The former testified he could not recall Ybarra's making the comments in question. The latter testified that Ybarra did not make the statement at issue. In light of all evidence in this case, and specifically that relating to Ybarra's credibility, I credit DeEstrada here. Having found that Ybarra made the statement in ques- tion, I also find that the statement violated Section 8(a)(1) of the Act.81 The remark was clearly coercive. 89 Passavant Memorial Hospital, 237 NLRB 138 (1978) 90 Toward the end of the case, a witness named Karen Boyd testified She was a busdriver instructor for an Aztec competitor , and sometime after July 1981, contacted Ybarra relative to references for five Aztec strikers who had applied for employment at the competitor Ybarra told her that the employees were troublemakers and to leave them and forget them The witness hired the employees anyway and at a luncheon in De- cember 1981, Ybarra expressed surprise to the witness that she had hired the Aztec employees Ybarra denied these remarks . However, the witness knew her for 3 years, was a friend and neighbor, and had absolutely no reason to fabricate I credit Boyd's account and find, based on this exam- ple and other evidence, that Ybarra's credibility is not high 91 Cf Laredo Coca Cola Bottling Co, 241 NLRB 167, 177 (1979) By suggesting that the Union was no longer capable of representing members of the unit, Ybarra interfered with the free exercise of employee rights. In addition, to sug- gest that strikers would come back only as part-time em- ployees also tended to undermine the status of the Union. In conclusion of this section, I note that Respondent raises two general defenses to the charges discussed. First, at 605-606 of its brief, Respondent contends that the statements in issue are only isolated on minor events. Even if this claim were accurate, which it is not because the statements were significant violations of the Act, the defense of de minimis has fallen into disrepute and it no longer appears to have vitality under Board law.92 Similarly without merit is Respondent's claim (Br. 606-608) that the statements in question were protected under Section 8(c) of the Act. I have found the state- ments to be threats of reprisals for protected activity or otherwise calculated to undermine the status of the Union. Accordingly, they are not protected under Board law.93 F. The Alleged Unlawful Refusal to Reinstate the Strikers Unconditionally (Nonmisconduct) 1. Facts As mentioned briefly above, on April 3, 1981, the Union sent a second letter to Respondent. It reads as fol- lows: San Diego Bus Driver Union A.F.L.-C.I.O. April 3, 1981 DELIVERED BY MESSENGER Aztec Bus Lines, Inc. 4437 Twain Avenue San Diego, California 92120 Attention: Gus Zemba Re: Unconditional Offer to Return to Work by Strikers Dear Mr. Zemba: In accordance with the provisions of the National Labor Relations Act, Case No. 21-CA-20033, and the Settlement Agreement in Case Nos. 21-CA- 19497 and 21-CA-19542, Local 1309 as the agent of and on behalf of the striking employees of Aztec Bus Lines hereby unconditionally offers, on behalf of all striking employees, to return to work effec- tive 8:00 P.M. April 3, 1981. All of the employees represented by Local 1309 who are presently engaged in a strike against Aztec are ready, willing, and able to return to work on April 3, 1981 at 8:00 P. M. and hereby offer them- selves for the same. In the event that you have any difficulty contact- ing any employees to recall them to work either be- cause telephones are busy or because phones have 92 See Holladay Park Hospital, 262 NLRB 278 and cases cited at fn 2 (1982) 92 Vincent et Vincent of Allentown Mall, 259 NLRB 1025 (1982) 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been disconnected because of the strike, or for any For other reason, please contact this office; and we will Gray, Cary, Ames & Frye aid you in communicating with all such employees. DBG:jd We make this offer because a number of employ- ees no longer have telephone service as a result of the current economic situation and it is our desire to facilitate the return of all employees to active employment status as expeditiously as possible. Very truly yours, /s/ David H. Moore, President Local Division 1309 DHM: chs opeiu: 139 afl-cio,clc CC: California Unemployment Insurance Appeals Board Mr. Roberto Chavarry [G.C. Exh. 23.] This letter was answered by Respondent on April 6, 1981, when it wrote to the Union to ask for an immedi- ate list of those "employees represented by Local 1309 who are presently engaged in a strike." (G.C. Exh. 26.) One day later, the Union sent to Respondent a list of em- ployees presently engaged in the Aztec strike. (G.C. Exh. 27.) On April 21, 1981, Respondent sent another letter in this sequence to the Union. It reads as follows: GRAY, CARY, AMES & FRYE Attorneys at Law HAND DELIVERED April 21, 1981 Richard D. Prochazka, Esq. Domnitz & Prochazka 3061 Fourth Avenue San Diego, CA 92103 Re: Aztec Bus Lines, Inc. Dear Mr. Prochazka: Attached is a list of persons who may be entitled to reinstatement if they choose to comply with ex- isting requirements as to notice, providing print- outs, meeting physical examination requirements, and meeting requalification requirements. You and they know, and have known, of these requirements. Please permit them to come forward and satisfy these requirements if they really want to get on work lists. If you are unwilling to so instruct them, then notify us of such position, so that we can inform them directly. You have failed to provide us with information to reflect whether or not any of them had aban- doned the strike. We continue to seek that informa- tion by all means legitimately available to us. Unless there is some reason we should not ask them about employment during the strike, we will do so. If you wish to have a union representative present, we will arrange for such. Sincerely yours, /s/ David B. Geerdes cc: Mr. David H. Moore Mr. Roberto G. Chavarry Mr. A. C. Zemba [G.C. Exh. 34.] Attached to this letter was a list of names that I have in- cluded as "Appendix A" to this opinion. The names are identical to those alleged in the complaint at paragraph 22(a). Continuing with the unceasing torrent of letters, ex- changed by the parties, I note next a letter from Re- spondent to the Union. The letter contained a proposed notice, later replaced by a revised notice, which correct- ed a typographical error. The original letter and revised notice read as follows: GRAY, CARY, AMES & FRYE Attorneys at Law HAND DELIVERED April 23, 1981 Richard D. Prochazka, Esq. Domnitz, Prochazka & Levine 3061 Fourth Avenue San Diego, CA 92103 Re: Aztec Bus Lines and Local Division 1309 Dear Mr. Prochazka: Aztec proposes to send the attached notice to the individuals on the list previously provided to you. If you object to Aztec doing so, please inform us im- mediately and we will consider your objection. We intend to have the notices in the mall [sic] on April 27. The specific conditions mentioned in the notice were proposed to the Union as being applicable to returning strikers and the Union agreed. No collective bargaining agreement exists for rea- sons given at the bargaining table. Your question with respect to work list is an- swered by the body of the notice. Sincerely yours, /s/ David B. Geerdes For GRAY, CARY, AMES & FRYE DBG:jd Encl. cc: Mr. A. C. Zemba Mr. Roberto G. Chavar;ry Mr. David H. Moore NOTICE You are hereby notified that you may return to work under existing terms and conditions which in- clude providing a print-out, satisfying physical ex- amination requirements, and requalification require- ments. AZTEC BUS LINES 1055 Please inform us of your intentions by [G.C. Exhs. 35, 37.] The letter above was answered by the Union on the fol- lowing day. In relevant part,94 the Union's letter reads as follows: DOMNITZ, PROCHAZKA AND LEVINE A PROFESSIONAL CORPORATION April 24, 1981 PACIFIC MESSENGER David B. Geerdes, Esquire Gray, Cary, Ames and Frye 2100 Union Bank Building 525 "B" Street San Diego, CA 92101 Re: Aztec Bus Lines and Local Division 1309 Dear Mr. Geerdes: In response to your letter of April 23, 1981, please be advised that it remains Local 1309's posi- tion that all striking employees are absolutely and unqualifiedly entitled to reinstatement without any need to meet any of the conditions referred to in your notice. We will therefore be arguing to the labor board that your conduct is in furtherance of that continuing unfair labor practice. Without waiv- ing our position in that regard, we obviously have no control over what Aztec does or does not do. You assert in your letter that the conditions men- tioned in your notice were agreed to by the Union. Those conditions were agreed to by the Union as a provision to be included within the collective bar- gaining agreement . At no time did we agree that they were applicable to the returning strikers. Local 1309, pursuant to the provisions to which you allude, as exclusive bargaining agent for all striking employees, hereby requests that pursuant to the terms of our collective bargaining agreement, that the Company obtain whatever Department of Motor Vehicle print outs it deems appropriate. In so doing, we are not agreeing that obtaining the print outs is a condition of reinstatement of striking employees, but simply to facilitate the return to work of all striking employees. Very truly yours, /s/ Richard D. Prochazka RDP:Ik cc: Local Division 1309 Roberto Chavarry [G.C. Exh. 36.] On April 27, 1981, a group of several returning strikers accompanied by Union President Moore and Chief Shop Steward Corona reported for work at Aztec. One of those in this group was Mary Mason, a witness at the hearing. She was given an employment application by 94 I have omitted one sentence of the Union's letter as it deals with the typographical error referred to above Harrison and told to fill it out in part (R. Tr. 62). Later, Ybarra told her to fill it out totally. Mason, an Aztec em- ployee since 1972, was then told to get a physical exami- nation from Dr. Carey, the Company's physician, to get a DMV printout of her driving record, and to take an open-book test. Mason did as she was told. Two weeks later she was called back to Aztec and told by Harrison that Dr. Carey found a medical problem with Mason's back that disqualified her from returning to work as a busdnver. (G.C. Exh. 51.) Shortly thereafter, Mason was examined by her own physician who found her qualified to return to work. (G.C. Exh. 52.) Prior to her examina- tion by Dr. Carey, Mason had a current medical examin- er's certificate dated May 15 and valid for 2 years. (G.C. Exh. 50.) Ybarra told her she still needed to be examined by Dr. Carey because she had been off work for longer than 6 weeks. Ultimately, Mason returned to work in September 1982. Another returning striker in this initial group was Jose Tovar. While undergoing all the rigors as described by Mason, he was also required to take a driving test, which he did. Subsequently, Tovar was told by Ybarra that he had failed the driving test. The next day, he retook the test with a different driver and he was told that he had failed again. In two subsequent days, each time with a different driver, Tovar took another driving test and each time was told that he failed. All the drivers as- signed to grade Tovar were nonstriking employees. When Tovar complained of this to Harrison, he was sub- sequently taken back and worked as a schoolbus driver until school recessed for the summer . Tovar asked Inger- soll whether Tovar could work as a replacement driver on Aztec's transit routes during the summer. Ingersoll denied the request, saying that he did not have time to requalify him. In September 1981, Tovar was called back to work at Aztec.95 Another returning striker who testified was Philip Gress. Prior to the strike he had been a schoolbus driver and driver-trainer. After returning to work in April 1981, he was laid off for the entire summer . Normally he would have worked at least part of the summer as a trainer. When recalled in September 1981, Gress did not return as he felt he was under too much stress. As exam- ples of this, he related how on two occasions he found live rounds of ammunition in his mailbox at work. An- other example was a remark made by Hokstad to him shortly after Gress returned to work. "You got a lot of balls wearing a union pin in here." Then Hokstad re- marked that this is a nonunion shop and further stated to some of the other nonstriking drivers, "Let's go find where he parked his car." Other similar incidents were also described.96 95 Although Tovar returned to work in September 1981, he did not participate in a "shake -up," i e , a bidding procedure on bus routes based on strict driver seniority held on July 22, 1981 Ybarra testified that she had left messages on two occasions with Tovar's sister, the phone contact listed in Tovar's records The record is unclear why Tovar did not re- ceive the message nor does the record show exactly how Tovar was prejudiced, however, I will recommend to the Board that the latter issue at least be resolved at compliance 96 At the hearing, I noted and remarked for the record that the wit- ness seemed to be a mild-mannered individual (Tr 10,364) Some of the Continued 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Another returning striker who testified was Marian Young. Apparently, she was not part of the April 27 group referred to above, but returned to work later. Like Gress, she found live rounds of ammunition in her work mailbox.97 She also had an argument with a nonstriking male driver over a route assignment. In December 1981, she and two other returning strikers, Shirley Rudy and Diane Macklin, were in a training class to qualify as transit drivers. Suddenly Kitty O'Brien, who had re- placed Ybarra as the training supervisor, said the training class would be discontinued and she did not know when it would resume. As a result, Young was not permitted to bid at a December 1981 shakeup. According to the witness, certain transit drivers with less seniority were permitted to bid on and receive transit routes while she continued as a schoolbus driver. O'Brien testified that Young's training was interrupted due to an increase in O'Brien's responsibilities when some strikers returned in December 1981. After this problem was taken care of, Aztec no longer needed any additional transit drivers at that time and the class was not resumed. The final witness from the nonmisconduct strikers was Wendell Pyatt, who had been a part-time employee before the strike. He apparently returned to work for the first time in September, just before school began. Like those who had returned from the strike earlier, he was required to undergo a physical examination and obtain a DMV report. Harrison showed him two letters that had earlier been sent to him at a wrong address, apparently a prior address. His W-2 statement for 1980 had been sent to the correct address. On cross-examination, the witness testified that he had been notified by Corona to report for work at Aztec. He could not report at this time, because he was going to school. He then called Schultz, who promised to send him a letter which he never received. He called Schultz back two additional times, but he was not there.98 2. Analysis and conclusion I begin by finding that the Union's letter of April 3, 1981 (G.C. Exh. 23), recited above, was an unconditional offer to return to work.99 On receipt of this letter, the harassment from the nonstriking drivers was not reported to manage- ment, and Gress may have been the only returning driver who did not continue working for Respondent Because there is no evidence to sug- gest that Gress was singled out for special harassment , I leave to compli- ance the question whether he willfully failed to mitigate damages by not returning to Respondent in September 1981. 87 When these events were reported to Zemba, he prepared and dis- tributed to employees, a memo threatening to fire any persons responsible for harassment against returning strikers During the hearing, the name of a person surfaced as possibly the responsible culprit The individual named was questioned by management and denied the charge No disci- plinary action was taken. 98 The record does not show how long the witness was prevented from returning to work because he was attending school. Nor does the record show what arrangements were to be reflected in the letter Schultz promised to send, but which the witness never received . These are all matters for compliance 99 See Denzil S. Alkire, a sole proprietorship, 259 NLRB 1323 (1982), NLRB v. W. C. McQuaide, Inc, 552 F 2d 519, 529 (3d Cir 1977); NLRB v Brown & Root, Inc, 203 F 2d 139 (8th Cir 1953) burden was on the Employer to offer reinstatement to employees for whom positions were available.100 In this case, Respondent has never claimed that employees were not taken back because permanent replacements were hired. Thus, it is important to understand that the status of the strikers was that of employees during the strike. The strikers were entitled to immediate reinstatement once their unconditional offer was received by Respond- ent 101 and this status continued until the employee ob- tained other regular and substantially equivalent employ- ment.10 2 The question next becomes whether Aztec's response was consistent with the immediate reinstatement require- ments of the law. Clearly, Respondent has fallen short by "two and a half country miles." 103 I will find below that the 5-day delay period does not apply here; therefore, the strikers were entitled to reinstatement not later than April 4, 1981. Yet, Respondent did not even reply to the Union's offer until April 21, 1981. (G.C. Exh. 34.)104 The content of the reply like the inordinate time to re- ceive it also fell far short. In its letter of April 21, 1981, Respondent referred to a list of strikers "who may be entitled to reinstatement if they choose to comply with existing requirements as to notice, providing print-outs, meeting physical examina- tion requirements, and meeting requalification require- ments." (Emphasis added.) Thus, even those strikers who comply with all existing requirements as listed, including one not explicitly stated, i.e., the completion of a job ap- plication form, received only a limited promise from the Employer. That is, the strikers may be entitled to rein- statement. To me, this conveys the notion that the em- ployer reserves the right to add other conditions later or to reject returning strikers for unstated reasons. Accord- ingly, I find that Respondent's entire procedure for rein- stating the returning strikers listed in paragraph 22(a) of the complaint, Appendix A to this decision, did not com- port with Board law and that Respondent's backpay obli- gation continues to run.105 Starting with the employment application, I note the case of NLRB v. Robinson Freight Lines, 251 F.2d 639 (6th Cir. 1958). There, an employer required returning strikers to fill out new employment applications allegedly pursuant to instructions from the Interstate Commerce Commission. The strikers refused to sign the applications and the court enforced the Board's Order finding that they had never been offered unconditional reinstatement. The court also held that in light of all surrounding cir- cumstances, the strikers had reason to believe that their status as old employees, together with their seniority 100 Woodlawn Hospital, 233 NLRB 782, 792 (1977), revd in part and vacated in part 596 F 2d 1330 (7th Cir 1979) 101 Scalera Bus Service, 210 NLRB 63 (1974). 102 NLRB Y. Fleetwood Trailer Co., 389 U S 375, 380-388 (1967) ioa Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir 1980). 104 I exclude Respondent's letter of April 6, 1981 (G C Exh 26), be- cause this letter only requested additional information and did not make a substantive reply to the Union's letter of April 3 105 Standard Materials, 237 NLRB 1136 (1978), affd 604 F.2d 449 (5th Cir 1979). In that case, the Board held that conditioning strikers' rein- statement on submitting new employment applications and successfully completing physical examinations does not conttiue a valid offer of rein- statement See also Pace Motor Lines, 260 NLRB 1395 (1982). AZTEC BUS LINES status, would be affected by the applications and their re- fusals to sign were justified. In this case all returning strikers apparently completed the new applications. 106 This fact makes it no less oner- ous as the strikers had no choice under the circum- stances. I reject Respondent's claim that it was merely attempting to update their personnel files. All surround- ing circumstances indicate to me that Respondent intend- ed to affect the status of the strikers as current employ- ees. The use of physical examinations was also used by Respondent in an unlawful and discriminatory manner. The Board has held that the imposition of such require- ments treats the discriminatee as an applicant for employ- ment and, thus, renders an offer of employment sus- pect.1O4 The taking of driving or open-book tests, and obtaining of DMV records are similarly improper prior conditions to the immediate reinstatement of strikers. In this case, it is claimed that the Union agreed to these requirements. (G.C. Exh. 35.) There is no credible evidence that the Union waived the rights of its mem- bers-assuming that it had the power to do so. On the other hand, the Union admitted that it had agreed to the conditions for inclusion in the new collective-bargaining agreement. (G.C. Exh. 36.) On March 26, 1981, Neeper first presented the Company's proposal containing sec- tions 9.7, 9.8, 9.9, and 17.8. Although Neeper stated that the Company intended these provisions to apply to re- turning strikers, the Union never agreed to this. The Union always took the position that strikers should return in accord with Board law. Respondent further contends that the conditions im- posed by Respondent on the returning strikers were re- quired by DOT regulations and were simply matters of administrative convenience inconsequential at worst. As to the latter argument, the cases cited above, if not common sense, show that the conditions imposed by Re- spondent were substantial burdens on returning strikers. Moreover, strikers such as Young, Rudy, and Macklin have not had their seniority treated with proper defer- ence under the facts of the case. Respondent's claim that it was merely following DOT rules and regulations is similarly without merit. In this respect, I quote from Respondent's brief at 496: These [medical examinations, etc.] were standards applied to all employees working at Aztec at that time. As such, they were not conditions of the rein- statement offer. These requirements applied to all employees and were based upon valid business rea- sons and requirements of law. They were put into effect substantially, before any offers of reinstate- ment to the strikers were made. The General Counsel argues (at Br. 49 fn. 41) that the circumstances of Respondent's change in policy to re- quire physical examinations and testing is a unilateral change in violation of Section 8(a)(5) of the Act. The toe Any returning strikers who failed to comply with Respondent's un- lawful conditions could be faced at compliance with an allegation from Respondent that they failed to mitigate damages. 107 Crow & Son, 244 NLRB 241 (1979), affd. in relevant part 565 F.2d 1267 (3d Cir. 1977). 1057 General Counsel concedes that the alleged violation was not in the complaint, but asks either to permit amend- ment of the complaint or to make a fording on the evi- dence adduced. I choose the latter procedure. I fmd that the matter was fully litigated and that the subject matter of the alleged violation is closely related to the allega- tions of the complaint. 108 I further fmd that the section of Respondent's brief quoted above puts the matter in sharp focus. Both Ybarra and Harrison testified that the conditions in issue were implemented by the Company in October or November. There is no evidence of notice to or bar- gaining with the Union with respect to these matters. Ybarra in particular testified that she was advised by a representative of a bus transportation trade association to implement the changes based on what the representative said were recent DOT rules and regulations. Assuming without fording that these regulations apply to Respondent, a primarily intrastate carrier, they are of no help to Respondent's case. First, the regulations spe- cifically address only the medical examination issue leav- ing the employment application and open-book and driv- ing tests without any basis at all. (G.C. Exhs. 64, a, b, c, and d.) As to the medical tests, both Mason and Tovar had valid medical certificates when they were ordered to take another physical as a condition of reinstatement. Thus, as to them, section 391.45 is specifically not appli- cable. t o9 However, Ybarra testified that as to them and others who may be similarly situated, Respondent relies on section 391.1 (G.C. Exh. 64b)" O by which Respond- ent sought to make more stringent regulations than those specifically authorized. Of course, no administrative reg- ulation is valid authority to make unilateral changes where there was a duty to give notice to the Union and an opportunity to bargain."" t Because this did not occur 108 H. C Thomson, Inc., 230 NLRB 808, 811 (1977). 109 Sec. 391.45 reads as follows: Persons who must be medically examined and certified. Except as provided in Sec . 391.67, the following persons must be medically examined and certified in accordance with Section 391.43 as physically qualified to drive a motor vehicle: (a) Any person who has not been medically examined and certi- fied as physically qualified to drive a motor vehicle: (b) Any driver who has not been medically examined and certi- fied as qualified to drive a motor vehicle during the preceding 24 months; and (c) Any driver whose ability to perform his normal duties has been impaired by a physical or mental injury or disease. [G.C. Exh. 64a] 110 This section reads as follows: Sec. 391 .1 Scope of the rules in this part; additional qualifications; duties of carrier-drivers. (a) The rules in this part establish minimum qualifications for per- sons who drive motor vehicles as, for, or on behalf of motor carriers. The rules in this part also establish minimum duties of motor carriers with respect to the qualifications of their drivers. (b) The rules in this part, and in other parts of this sub-chapter, do not prevent a motor carrier from imposing more stringent or addi- tional qualifications, requirements, examinations, or certificates than are imposed by those rules. (c) A motor carrier who employs himself as a driver must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers. [G.C. Exh. 64b.] 111 NLRB v. Robinson Freight Lines, 251 F.2d 639 (6th Cir. 1958). 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD there, I find that in October or November, when the policies in question were implemented, Respondent vio- lated Section 8(a)(5) of the Act.112 Because of this viola- tion, Respondent's claim that conditions imposed on re- turning strikers were imposed on all employees where applicable, without discrimination, has a hollow ring to it. But Respondent's attempted defense must fail, not only because it was implemented in an unlawful manner, but also because it is otherwise without merit. It has been shown above that the regulations of an administrative agency cannot be interpreted to defeat the rights of re- turning strikers to immediate reinstatement. To hold oth- erwise would effectively undercut the protected status of a lawful strike and the protected status of strikers as con- tinuing employees.' 13 In sum, I find that the employees listed in "Appendix A" never received an unconditional offer to return to work. The conditions imposed on them were unlawful and without a legal basis. Because the offer of reinstate- ment tendered by the Employer was conditional, back- pay was not tolled. Moreover, the failure of Respondent to reinstate the strikers listed in "Appendix A" properly violates Section 8(a)(1) and (3) of the Act.' 14 Finally, I find that the usual 5-day delay before backpay is to begin would not apply in this case, because the Employer at- tached unlawful conditions to the return of the strikers. Accordingly, backpay will commence as of the uncondi- tional offer to return to work. Because the letter of April 3, 1981, was delivered by messenger on that day, back- pay will commence as of April 4, 1981.115 G. The Alleged Unlawful Refusal to Reinstate the Strikers Unconditionally (Alleged Resignations and Misconduct) 1. Preliminary observations and facts After receiving the Union's unconditional offer to return to work, Respondent refused to reinstate approxi- mately 10 strikers who allegedly resigned or otherwise abandoned employment during the term of the strike. Respondent also refused to reinstate approximately 62 strikers because the strikers participated in various un- protected acts of strike misconduct either on the picket line, or in some cases, away from the picket line. In either case, it is claimed by Respondent that because the misconduct was committed within the context of the strike, the various strikers are not entitled under the law to reinstatement. Because the facts vary as to each strik- er, it will be necessary, with a few exceptions, to consid- er each striker separately. The only exception will be in those few cases in which two individuals are alleged to have been together constantly on the picket line so that 112 The fact that a strike was in progress does not affect Respondent's duty to give notice and an opportunity to bargain on the proposed changes. In this case, there is reason to believe that the changes in policy were designed to disparage and undermine the Union Flowers Baking Co., 169 NLRB 738 (1968), enfd 418 F.2d 244 (5th Cir 1969). 113 NLRB Y. Fleetwood Trailer Co, 389 U S. 375 (1967) 114 Sure-Tan, Inc, 234 NLRB 1187 (1978), enfd. as modified 672 F 2d 592 (7th Or 1982). 115 Teamsters Local 574, 259 NLRB 344 In 2 (1981) the evidence of one will almost always apply to the other. As reflected above, the strike here began at 12:01 a.m. on August 23. It was perhaps not the longest, nor the most violent and bitter, labor dispute in American histo- ry, but the evidence in this case reflecting on the con- duct of the strike can only be characterized as appalling. Without in any way attempting to minimize nor condone the unlawful labor practices committed by the Employer, the behavior of some pickets was outrageous. I will find below various acts of misconduct including physical as- saults, spitting on cars or persons, the throwing of eggs or other objects at vehicles or persons, threats of great physical harm, a continuous barrage of the most vile ob- scenities and sexual innuendoes imaginable directed pri- marily at Harrison and Zemba, and other acts of petty harassment such as the opening of bus emergency doors and the repeated blocking of buses and other vehicles. To be sure, the misconduct that occurred was not lim- ited to the strikers. Nonstriking employees also commit- ted various acts of misconduct against strikers including physical assaults, spraying of ammonia or other liquid, use of obscenities and racial epithets, occasional egg throwing, use of weapons such as tire irons, crowbars, or knives to threaten strikers and, most commonly, speeding into or out of the Aztec yard in such a manner as to threaten or, in a few cases, to actually hit a striker or a member of a striker's family. The Union has raised the issue of condonation, because virtually none of the non- striker misconduct was punished by company manage- ment. In some cases, this misconduct was unknown to management, but the lack of knowledge raises the addi- tional issue of whether management deliberately intended to remain ignorant. In one case, Schultz, then Aztec's second highest ranking official, used his own funds to bail out of jail a nonstriker who had been arrested and charged with a serious offense against a striker. As the issue of misconduct itself, the issue of condonation will have to be carefully considered and weighed for its effect on the case of individual strikers. Also relevant for the same purpose is the effect of the Employer's unfair labor practices found in other sections of this opinion.' 16 I find now and will support below with detailed analy- sis that the nonstriker misconduct was substantially less than that committed by strikers. In addition, in all or most cases of nonstriker misconduct, there was some ele- ment of direct and immediate provocation by strikers that caused the nonstrikers to believe that self-defense was required. In many cases, the purported self-defense was an overreaction to the perceived threat. Nowhere was this more true than in the cases of nonstriker vehi- cles speeding into or out of the yard. For those persons, either management or nonstrikers, blocked from entering or leaving the yard by a mass of pickets, some unpleasant episodes were likely to occur. Considering the length of the strike and its violent character, it is truly amazing that no serious injuries re- sulted. Serious property damage, particularly to cars and buses did occur, however. Police were frequently called ... K & K Transportation Corp, 262 NLRB 1481 (1982) AZTEC BUS LINES 1059 to the picket line for one reason or another and occasion- al arrests were made. These arrests in turn led in some cases to convictions that I will consider where applica- ble. Various persons have civil lawsuits in progress and I will also detail these as factors to be weighed in judging credibility. Most of the picket line activities in issue here occurred at Respondent's bus yard on Twain Avenue in San Diego. To better understand the geography, I note a sketch of the area prepared by the parties to the case. (See diagram A below.) Some additional picket line ac- tivity occurred in a downtown area of Chula Vista, a suburb of San Diego served by Respondent's transit divi- sion and at the Chula Vista bus yard. telophO .e booth SparklettS Parking Lot I /00' C.C. EXH. NO.75 (Diagram A) TWAIN AVENUE (47' wide). 231'- 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When the strike started, it was early on a Saturday morning. Yelkey was on the picket line as were a number of pickets, well in excess of 100. Thereafter, the number of pickets varied until mid-December when in observance of Union Solidarity Day, another episode of mass picketing occurred. After this, the number of pick- ets declined gradually. During the course of the strike, Harrison repeatedly encouraged nonstrikers to submit written reports to man- agement of strike-related incidents. Harrison's pleas met with mixed success: she submitted no written incident re- ports because she was too busy with other matters. Har- rison described several incidents of serious misconduct that she either observed or was the victim of. As to other incidents of misconduct, some witnesses at hearing prepared and submitted the reports and some did not. In many cases, oral reports of the incident were conveyed to Harrison, Zemba, or Schultz. From time to time during the strike, meetings of com- pany management were held. At these meetings, various incidents of misconduct together with the alleged perpe- trators were discussed. After the Union submitted its un- conditional offer to return to work, Zemba, Harrison, and legal counsel met to discuss individual strikers. The final decision as to which strikers should be offered rein- statement was a collective decision. Reviewed at that time were the personal knowledge of Zemba and Harri- son based on their own observations and experiences, their knowledge of events based on the oral reports of nonstrikers or other members of management, and their knowledge based on various written reports. In addition to the incident reports referred to above, Zemba and Harrison reviewed logs prepared by the private security guards (R. Br. 57, 58) and logs kept by Aztec dispatchers (R. Br. 71) who were normally the first persons to whom an incident of misconduct would be reported. In addition to all the above, Harrison had devised during the strike a card index file (G.C. Exhs. 65a-ooo) as a means of col- lecting and summarizing reports of misconduct on indi- vidual strikers. The information collected and the meet- ings held were inexact and subject to some discrepancies. However, on balance, I am satisfied that when coupled with the testimony of the witnesses at hearing, the proc- ess was adequate to prove not only those who were guilty of serious misconduct during the strike but also those who were not. Before turning to consider the case of those charged with misconduct, I begin with the smaller group of those who are alleged to have resigned or otherwise abandoned their employment during the strike. 2. Analysis and conclusions (resignations) In determining whether strikers resigned from their jobs during a strike such as to preclude them from rein- statement at its conclusion, the Board requires the party challenging the employee status of a striker to "affirma- tively show by objective evidence" that the striker has abandoned an interest in his struck job. See Harowe Servo Controls, 250 NLRB 958, 964 (1980). Neither an employ- ee's acceptance of other employment nor his resignation in order to accept other employment will automatically establish an intent to abandon a striker's original job. "The nature of the evidence which may rebut the pre- sumption will be determined on a case-by-case basis." Ibid, quoting from Pacific Tile & Porcelain Co., 137 NLRB 1358, 1359-1360 (1962). And see Coca-Cola Bot- tling Co., 232 NLRB 794 (1977). Although resignations in order to accept other jobs during a strike do not automatically eliminate a striker from being considered for reinstatement, where the resig- nations are voluntary and neither coerced nor caused by an employer's misconduct, the employer may rely on such resignations and conduct his business affairs accord- ingly. See Beverage-Air Co., 185 NLRB 168, 170 (1970); P. B. R. Co., 216 NLRB 602 (1975); and Mississippi Steel Corp., 169 NLRB 647, 663 (1968). Although not all strikers who allegedly resigned in this case did so to accept other employment, the above cases are nevertheless helpful to the instant analysis. I turn now to the individual strikers. a. Dana Banning Zemba did not know Banning, but believed he was denied reinstatement due to his resignation. Banning picketed regularly for about the first 2 weeks of the strike. Following this period, Banning picketed weekends only until November, when he secured other employ- ment. Between November and January 1981, Banning picketed only once a month. After February, Banning re- sumed picketing about once a week. At no time did Ban- ning ever tell anyone that he was resigning his employ- ment at Aztec. In its brief at 437, Respondent argues that Banning was denied reinstatement because he had resigned. Then, apparently because there is no evidence to support this claim, Respondent discusses only the alleged strike mis- conduct of Banning. Because this evidence, such as it is, was never relied on by Respondent as a basis for refusing reinstatement, it is irrelevant to this proceeding and I de- cline to discuss it. I will, however, note that it is trivial and inadequate to preclude reinstatement. I find that Banning is entitled to reinstatement and backpay. b. Leslie Carr This person did not testify at the hearing. i t 7 Howev- er, Schultz, his supervisor, testified that prior to Septem- ber 15, he received a call from Carr who stated that he would not be returning to Aztec. Schultz inquired as to whether Carr was going to take a job as a police officer, a job Carr had previously expressed some interest in. Carr said no, but that he had something else that he was trying to get into. Either before or after this call, Schultz received a telephone request from a school district asking for an employment reference on Carr. Carr's phone call was reported to Harrison and subsequently conveyed to Zemba. During the course of the strike, there is no evidence that Carr picketed or even appeared near any picket line. 14 Because there was no explanation for his absence, I draw an ad- verse inference from Carr's failure to testify However, I would decide his case in favor of Respondent even without the adverse inference AZTEC BUS LINES 1061 I fmd that during the course of the strike, Carr re- signed and is not entitled to reinstatement or backpay. c. Darryl Conyer According to Zemba, several weeks after the strike began, Conyer called him and said that he was going to New Jersey to look for painting work and would not be coming back. Conyer allegedly apologized for his mis- conduct on the picket line. Conyer admitted the call, but denied saying that he would not be back or apologizing for strike misconduct. Conyer testified that he specifical- ly told Zemba the trip was temporary and that he would be back. Conyer also testified that Zemba stated, "plan to be gone for at least 7 months . That's how long the strike is going to last." Zemba denied saying this and also denied Conyer's testimony that in March 1981, after the latter's return, he talked to Zemba who stated that Conyer would be permitted to return to work. Conyer was 22 years of age and prior to the strike had been the coach of Respondent's baseball team. I cannot believe that he told Zemba he was leaving San Diego for good nor that he apologized for strike misconduct. Conyer had relatives in New Jersey, but he had no way of knowing whether he would be able to find work there. When he was unable to find work there, he left the State about Thanksgiving time and went to Texas where he remained until January 1981 . Then he returned to San Diego where he resumed picketing and collecting strike benefits from the Union . I believe Conyer's testi- mony that Zemba told him he would be able to return to work. In its brief at 438-446, Respondent seems to rest its case on Conyer's alleged misconduct. Yet, Respondent also states flatly (Br. 438), "Conyer was denied reinstate- ment because he abandoned interest in employment at Aztec. 118 I find that the record does not reflect that Conyer abandoned his position 119 and that he is entitled to reinstatement and backpay. d. Thomas Doty This individual had originally gone on strike, then de- cided to cross the picket line and return to work. Ac- cording to Harrison, on September 12, Doty hand-deliv- ered the following letter to her at the Aztec accounting office: 9-12-80 Aztec Bus Lines 4437 Twain Ave. San Diego Cal. To Management The strike at Aztec Buslines is having, has put mental and physical affect on my body. I can not preform my work as a driver at the best of my abili- ty while this strike is going on. This letter is to inform you why I didn't show for work on 9-11-80. 1ls Because there is no valid issue over Conyer's alleged misconduct, I decline to summarize or evaluate it. 119 Compare Belt Supermarket, 260 NLRB 118 (1982). Until there is a decision or ruling on this strike whether the Union is in or out I can not mentally and physically work for Aztec Bus Lines. /s/ Thomas Doty [G.C. Exh. 76.] Although he denied so stating, I find that when Doty gave the letter to Harrison, he said he was quitting due to the strain of the strike. I also fmd that there was a brief discussion between Harrison and Doty as to the procedures for converting from a group health plan to an individual plan. A few hours later Doty returned with a woman who said she was his wife. She told Harrison that Doty had been under great strain but was not quit- ting. She demanded the letter back from Harrison, but the latter refused to return it. Doty later that day con- sulted with counsel for the Union and was advised to write Respondent a letter to clarify his intention. He then wrote a letter to Respondent that was received by them a few days later and reads as follows: 9-12-80 Aztec Bus Lines 4437 Twain Ave. San Diego, Cal. To Management The letter that you received from Thomas G. Doty on 9-12-80 was not a letter of resignation. /s/ Thomas G. Doty [G.C. Exh. 77.] After September 12, Doty never rejoined the picket line but made occasional visits there for social purposes. He also obtained a part-time job. When he returned to work, he resigned from the Union to avoid discipline for crossing the picket line. After September 12, Doty with- drew his resignation and paid his union dues out of the strike benefit of $50 per week. The balance was returned to the Union as a contribution to a general welfare fund. "Where a striker has directly communicated to the [struck] employer his intention to quit ... there must be some showing of reservation or qualification or contin- ued interest before the Board will ignore that stated in- tention." 12 o Here, I find sufficient showing of reserva- tion in the letter handed to Harrison on September 12. Doty was leaving only until there was a decision or ruling on whether the Union is in or out. Of course, it could be reasonably argued that the letter on the whole was an ambiguous expression of Doty's intent. It is clear, however, the letter on its face did not manifest a clear intention to quit permanently . Subsequent events, al- though not determinative, are at least a factor to be con- sidered. Doty's return within a few hours with his wife to disavow any intention to resign is consistent with my finding that he did not resign. Sending the second letter after consultation with counsel is entitled to less weight, but like Doty's withdrawal of his resignation from the Union, these are factors supporting my conclusion. 120 Foote & Davies, Inc., 262 NLRB 238 fn. 4 (1982). 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the alternative, I find that even if the first letter, when construed with Doty's statements to Harrison at the time of delivery, is deemed to be sufficient to mani- fest an intent to resign , I nevertheless conclude that the attempted resignation was ineffective. I must conclude that Doty was so affected by the stress and pressure of the strike, particularly after deciding to cross the picket line and return to work, that his decision to resign was not the product of an unfettered will, and that the deci- sion cannot be found to have been voluntary .121 Ac- cordingly, I find that Doty is entitled to reinstatement and backpay. e. Bert Dredden When the strike started, Dredden was on a layoff status. On the first day of school, September 10, Dred- den routinely reported for work and was assigned a schoolbus route. He worked that day and the following day failed to appear , leaving the schoolchildren on his route at least temporarily unattended . He never reported for work thereafter and never communicated with anyone in management about his intentions . Dredden never picketed either before or after his single day of work and never received strike benefits from the Union. Neither did he formally resign from the Union, but he stopped paying union dues in June. According to Dred- den's testimony, he did visit the picket line from time to time. No other witness supports this claim . He also testi- fied that a striker, John Kipple, convinced him not to report to work after the first day. Under normal conditions, an employee who returns to work for 1 day after a layoff and never returns without any explanation would clearly have quit his job. In this case, a strike was in progress . Yet, there is no credible evidence that Dredden supported the strike : no picket- ing, no union dues, no strike benefits , and no statements to union officials nor to company officials expressing Dredden's intention to support the strike . In light of this evidence, or lack thereof, Dredden's self-serving testimo- ny that he visited the picket line about once a week- even if I were to credit it-is not enough. I find that he abandoned his employment and he is not entitled to rein- statement or backpay.122 f. Gerald Marks Zemba testified that about 1 week after the strike start- ed, Marks called him on the telephone and stated that he was resigning in order to work at Sundance , a competi- tor of Aztec . About 1 month later, Zemba was talking to an official of Sundance when Marks got on the line and stated he was happy working for Sundance. Marks never testified in the proceeding so I rely in part on an adverse inference to find for Respondent. Even without the adverse inference , I credit Zemba's testimony and find that Marks resigned and is not enti- tled to reinstatement and backpay. g. Suhley Ozgundez Prior to the strike, Ozgundez was serving a discipli- nary suspension as a result of an accident with a bus. Al- though on suspension in the summer, he agreed with Schultz to return in September . The witness produced a note from Schultz dated July 10, saying that the witness could bid , in an August 25 shakeup, in order based on his existing seniority. (G.C. Exh . 79.) On or about August 20 Ozgundez did bid on a route and even took a dry run with another driver to familiarize himself with his as- signed route. Due to the strike beginning on August 23, he did not actually start his run . Once the strike started, Ozgundez picketed sporadically because he was attend- ing school and because he obtained another job at the San Diego Unified School District . He did not return to a job at a bank , as he had quit there in anticipation of returning to Aztec . Each month of the strike , the witness paid his union dues; on the single occasion, he received strike benefits from the Union, he returned the check to the Union as an offset against his union dues. There is little doubt here that Ozgundez did not resign or otherwise abandon his employment. In reliance on the note of Schultz, Ozgundez quit his job at a bank, and at- tempted to bid on a new bus route. But for the interven- ing strike, he would have begun his new job . There is no direct evidence that Ozgundez resigned. The mere fact that he took another job during the strike is not sufficient to rebut his continued status as an employee. 123 I recom- mend that Ozgundez be reinstated with backpay. h. Abraham Planje Respondent contends that Planje resigned. In its brief at 446-447, Respondent discusses some alleged miscon- duct that is trivial and irrelevant to the issue of resigna- tion. According to Zemba, he and Harrison were having lunch at a nearby Jack-in-the-Box Restaurant. Planje came up to them and stated he resigned because he was then working for a cement truck delivery company. Planje also allegedly apologized for his picket line mis- conduct. Planje denied this testimony of Zemba . I credit Planje and find that he is entitled to reinstatement and backpay. I note that Zemba could not specify the date of the al- leged conversation and Harrison never testified on the matter after Plane's denial. In conclusion, I note that during the course of the hearing, Planje was reinstated by Respondent. I find that Planje is entitled to reinstate- ment and backpay. i. Cheryl Reid According to Zemba, although he could not recall Reid, he believed that she had resigned. Reid went on strike and picketed for about the first 3 weeks . Reid then stopped picketing and did nothing until April 1981, when she took a job with a tour company . Reid continued to 121 Not only does the wording of the letter , G.C. Exh 76, support this conclusion, but also Doty's continuing change of position and virtual in- ability to articulate clearly just what he wanted 122 See Smith Alarm Systems, 209 NLRB 835 (1974). 123 In fact, even where a striker formally resigns to take another job, this does not preclude reinstatement unless there is also unequivocal evi- dence of intent to sever permanently the striker's employment relation- ship See Harowe Servo Controls, 250 NRLB 958, 964 (1980) AZTEC BUS LINES 1063 work there until January 1982. At this time she was of- fered and accepted reinstatement with Respondent. I find that Reid is entitled to reinstatement and back- pay. Though she stopped picketing after 3 weeks, she continued, to pay union dues and, in a sense, received strike benefits as well. On receipt of the $50 per week check from the Union, she endorsed it and handed it back to the Union for use in the general welfare fund. In addition, she occasionally attended union meetings as well. I find insufficient evidence to show any resignation. j. Jean Umphreys Umphreys resigned from Aztec in the third week of September 1980. In a position paper submitted to the General Counsel on or about September 4, 1981, Re- spondent through its attorneys, said this about Umph- reys: On October 3, 1980, Ms. Umphreys contacted the Employer and voluntarily resigned. Prior to that time, Ms. Umphreys was not observed to have en- gaged in strike activity. Thus she was not a striker and did not have a right to unconditionally offer to return to work on April 3, 1981. Therefore, the Employer was under no obligation to offer Ms. Umphreys reinstatement. [G.C. Exh. 78, p. 13, par. 33.] All the above is fairly curious and puzzling because at the hearing, Zemba. spent much time detailing Umphreys' alleged misconduct. Then, just to be sure what Respond- ent's position was, I asked Zemba the following question: Q. Did her resignation, alleged resignation, play any role in the failure to reinstate her? A. No. In light of the ambiguity raised above, I cannot fairly de- termine the reason Umphreys was denied reinstatement. Accordingly, I must resolve the ambiguity against Re- spondent as the one responsible for creating it and order Umphreys reinstated with backpay. Alternatively, I consider her case on the merits. If she was denied reinstatement because she resigned as Re- spondent contends in part in its brief, but Zemba denied at hearing, then the evidence is as follows. According to Zemba, in September, he received a phone call from Umphreys, who stated she and another person were leaving the State to secure employment. Umphreys also apologized for misconduct on the picket line. Sometime later, Zemba was contacted by the Steak & Ale Compa- ny, in Texas. According to Harrison, she received infor- mation in early October that Umphreys was leaving for Indiana. (R. Exh. 49A.) According to Umphreys, she denied any calls to Zemba. She did stop picketing in mid-September, because she was upset over an injury to a dog owned by a picket. Umphreys did admit leaving for Texas in early October, but could not find a job and returned to San Diego in mid-December. While in Texas, she denied applying for work at the Steak & Ale restau- rant. When Umphreys left for Texas, she moved out of her rental premises. She got to Texas by hitchhiking; then re- turned by air, using money sent to her by her family. She is 24 years of age. Before leaving for Texas, Umph- reys never applied for, nor received $50 per week in union strike benefits. She did pay her union dues until taking a withdrawal card just before leaving California. Her only income was $52 per week unemployment com- pensation, received from the State of California. When she returned from Texas, Umphreys never rejoined the picket line. I find sufficient evidence to show that Umphreys re- signed from Aztec before leaving for Texas. In her affi- davit to an agent of the NLRB, she stated, "I am not de- nying but I do not recall calling Aztec and telling some- one that I had resigned." Although there is a discrepan- cy between the note indicating departure for Indiana and Zemba's testimony, I fmd Umphreys did call and state she was resigning. Taking Umphreys' testimony alone, all inferences indicate a permanent move to Texas, even though it lasted only 2 months.124 Assuming a person can rescind a resignation by reestablishing support for the Union and the strike, there is no evidence that Umphreys did this. If Umphreys was denied reinstatement due to her mis- conduct on the picket line, as Zemba testified, and as Re- spondent argues, in part in its brief, but denied in its po- sition paper, then the evidence is as follows.1125 Non- striker employees Hoffman and Swick testified that Umphreys engaged in some minor blocking of vehicles. In addition, Hoffman testified that Umphreys called her a "bitch" and once followed her schoolbus while Umph- reys was in a car with two other strikers. It was Zemba, however, who provided the most damaging testimony against Umphreys. According to him, she used a picket stick to make short poking motions toward him on sever- al occasions without actually touching him. Zemba de- scribed threats to get him and his girlfriend. Harrison, Umphreys, and others also threatened to kill Zemba and members of his family on occasion. She shouted to Har- rison and other female nonstrikers, "Is Zemba fucking all of you?" She also hit buses with a picket sign on 15-20 occasions. Umphreys essentially denied all the accusations against her, but I credit the Respondent's witnesses. In evaluat- ing this evidence, I will consider in mitigation, Respond- ent's unfair labor practices that I have found above and Respondent's condonation of certain acts by nonstrikers that I will recite below in the next section of this opin- ion. As a general rule, the use of epithets, vulgar words, profanity, or vulgar gestures does not deprive a striker of the protection of the Act.126 Of greater moment is the following of the schoolbus and the threatening gestures toward Zemba with the picket sign. In both these inci- dents, the acts in question do not rise to the level to pre- clude reinstatement.12 7 Similarly, the threats against 124 See Belt Supermarket, 260 NLRB 118 (1982). 125 1 find that Zemba had an honest behef that Umphreys engaged m serious strike misconduct . See Rubin Brat Footwear, 99 NLRB 610, 611 (1951). However, I cannot tell for sure on this record why Umphreys was denied reinstatement. 126 NLRB v. W. C. McQuaide, Inc., 552 F.2d 519 (3d Cir. 1973). 127 See Gibraltar Sprocket Co., 241 NLRB 501 (1979); Arrow Industries, 245 NLRB 1376 (1979). 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Zemba, while serious, appear to be classic mere "animal exuberance." Thus, under Board law and considering mitigation of the unfair labor practices and condonation, I would recommend that Umphreys be reinstated with backpay. This concludes the discussion of those strikers who are alleged to have resigned. In its brief (Br. 458-460), Re- spondent also discusses the cases of Francis Lackey, Shirley Porter, and Margaret Jonas. However, these indi- viduals, either at hearing or in the General Counsel's brief (Br. 57 fn. 49), have all been dismissed from the case and no findings about them will be made . Finally, striker Karen Sloan has been inadvertently listed by Re- spondent in the section of the brief with alleged resigna- tions. I will consider her case with the alleged strike mis- conduct to which I now turn. 3. Analysis and conclusions128 a. Strike misconduct Before analyzing the cases of the individual strikers, I note several preliminary matters. First, when evaluating strike misconduct, there is extensive conflict between the Board and the courts of appeals.129 Where the conflict exists, I am bound to follow the Board decisions. 130 Another conflict occurs from time to time between Respondent's statement of position (G.C. Exh. 78), dated September 4, 1981, and submitted to the General Coun- sel, and Respondent's evidence adduced at hearing. The General Counsel makes much of these conflicts (see, e.g., Br. 85 fn. 63) as indicating changes of position of im- peachment. In general, I have assigned little weight to the letter. It was never intended to be evidence for either side. Particularly in a massive case like this, each side can be expected to change its position often. The Gener- al Counsel did it as late as the filing of its brief. See, e.g., brief 49 footnote 41 in order to add still another allega- tion. This does not impeach the General Counsel's case any more than Respondent's position letter damages its case. Of course, where the conflict makes a difference, as 128 In judging the credibility of the strikers, I have in most instances accepted the Respondent's version of events Generally, the strikers denied committing the most serious acts of misconduct attributed to them and generally denied seeing or hearing other serious misconduct commit- ted by other strikers In the context of the evidence in this case, such denials were not usually convincing On the other hand, regarding striker misconduct, in most instances Respondent's evidence was more persua- sive for several reasons. ( 1) most of the misconduct ascribed to various strikers fell far short under Board law from precluding reinstatement This fact leads to the inference that Respondent merely presented the evidence it had, without fabrication or mistake, (2) those strikers who were found to have committed serious acts of misconduct had live wit- nesses testify against them and submit themselves to cross-examination. In no case did I rely on dispatch or security officer logs or police reports alone to find against a striker, (3) the strikers were either known to man- agement and nonstrikers or were identified from photographs Thus, I was usually satisfied that misidentification was not a significant factor, particularly where multiple witnesses testified against a given striker In sum, I have considered all evidence for each striker, including denials where applicable. However, because of the enormity of this case, it was not possible to detail conflicting testimony for each striker 129 See Haggard, Picket Line & Strike Violence As Grounds For Dis- charge, 18 Hous L Rev 423 (1981); Erickson, Forfeiture of Reinstatement Rights Through Strike Misconduct, Lab L.J. 602 (Oct 1980) (G C Exh 68). iiO Iowa Beef Packers, Inc, 144 NLRB 615, 616 (1963) it does for Umphreys, above, it will be noted. Because Board law commands that the letter is admissible, I have obeyed despite my own feeling that the letter's slight probative value is outweighed by its prejudice to Re- spondent. It also seems to me in the nature of settlement negotiations and inadmissible for that reason. (See Fed.R.Evid. 408.) I also note again that Respondent does not claim that any of the strikers have been permanently replaced. Ac- cordingly, it is unnecessary to make a fording about the type of strike, either economic or unfair labor practice. However, because I have found that prior to the com- mencement of the strike , the Employer had not bar- gained in bad faith, the strike was economic at its incep- tion. Following the commencement of the strike, Re- spondent did bargain in bad faith and committed other unfair labor practices. ' 31 Accordingly, when the Union made an unconditional offer to return to work on April 3, 1981, the strikers had become unfair labor practice strikers. 13 2 Another preliminary matter concerns the burden of proof that each party has. This burden was succinctly stated by the administrative law judge in Laredo Coca- Cola Bottling Co., 258 NLRB 491 , 496 (1981): The Supreme Court has long recognized that ac- tions taken against strikers are inherently destruc- tive of Section 7 rights. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). In all cases involv- ing either the discharge of or the refusal to reinstate strikers for having engaged in alleged acts of mis- conduct, "the burden of proving discrimination is that of the General Counsel ." Rubin Bros. Footwear, Inc., 99 NLRB 610, 611 (1952). Accordingly, the General Counsel must first establish that an individ- ual was in fact a striker and that an employer took some action against him for conduct while said indi- vidual engaged in the strike. At that point, the burden shifts to the Respondent which must prove that it entertained an honest belief that the striking employees have engaged in misconduct . Such con- stitutes an adequate defense to a charge of discrimi- nation in refusing to reinstate strikers except where the General Counsel affirmatively establishes that the employees did not , in fact, engage in such mis- conduct or where the conduct in question was not "so flagrant or egregious as to require subordination of the employees' protected rights in order to vindi- cate the broader interest of society as a whole." Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745, International Brotherhood of 19' In evaluating striker misconduct, I will give due consideration to the Respondent's conduct involving unfair labor practices. Harowe Servo Controls, supra, 250 NLRB at l t 11. That is, the Board requires that I bal- ance the nature of the employees' conduct against the Employer's unfair labor practices E. L du Pont & Co, 263 NLRB 159 cases cited at In. 3 (1982) 132 Gulf Envelope Co, 256 NLRB 320 (1981) See also Tarlas Meat Co, 239 NLRB 1400 ( 1979) Because the strikers are unfair labor practice strikers, an employer's erroneous belief, however sincere, that a striker has engaged in misconduct does not constitute a defense to refusing to reinstate him if such misconduct did not, in fact, occur J. H. Rutter-Rex Mfg Co., 158 NLRB 1414, 1418, 1448-1449 (1966). AZTEC BUS LINES 1065 Teamsters, Chauffeurs, Warehousemen and Helpers of America . . . v. N.L.R.B., 389 F.2d 553 (D.C. Cir. 1968); Gold Kist, Inc., 245 NLRB 1095 (1979); Birch Tree Number One, Incorporated, d/b/a Birch View Manor, 243 NLRB 495 (1979); Co-Con, Inc., 238 NLRB 283 (1978); Rubin Bros., supra. Once the General Counsel has established that the miscon- duct did not occur, the burden shifts to the respond- ent to rebut the denials. Gold Kist, Inc., supra. In this case, I find that as to all the affected individuals that they were strikers and were refused reinstatement by the Employer for conduct while on strike. I also find, with a few exceptions as indicated below, that Respond- ent held an honest belief that the strikers engaged in mis- conduct. Then I will find as to a substantial number of strikers that either the employees did not engage in such misconduct or the conduct was not so flagrant as to war- rant discharge. 13 3 In conclusion of preliminary matters, I turn to the issue of condonation raised by the Union and examine it from two perspectives: ( 1) disparate treatment-as found above no nonstriker was ever disciplined for misconduct and there was no mechanism in place to collect and evaluate nonstriker misconduct. This posture is in stark contrast to that employed for striking employees; i 34 and (2) condonation-this concept is explained in the case of Union Trust Drill Co., 124 NLRB 1143 at 1155-1156 (1959): The Supreme Court has ruled that where a strike is characterized by unprotected activity, or even by il- legal employee action, the employees take "the risk of termination of their employment." (N.L.R.B. v. Fansteel Metallurgical Corporation, 306 U.S. 240, 255), and the employer is "at liberty to treat them as having severed their relations with the Compa- ny." N.L.R.B. v. Sands Manufacturing Company, 306 U.S. 332, 344. By the same token, the employer is equally at liberty to disregard or waive the wrong, and to retain the offenders in his employ. It has never been suggested that the Act requires an employer to discharge an employee guilty of wrongful conduct, or that the Act itself terminates the relationship. The wrongful conduct merely per- mits the employer to take affirmative action to that end. Accordingly the courts and the Board have uniformly ruled that the only right accruing to an employer from unprotected strike conduct is the privilege or liberty to terminate the employment of the strikers because of their misconduct. Stewart Die Casting Corporation v. N.L.R.B., 114 F.2d 849, 856 (C.A. 7), cert. denied 312 U.S. 680; NL.R.B. v. Aladdin Industries, Inc., 125 F.2d 377, 382 (C.A. 7) cert. denied 316 U.S. 706; Hazel Atlas Glass Compa- ny v. N.L.R.B., 127 F.2d 109, 118 (C.A. 4); 133 Frequently at hearing the General Counsel used the expression, "industrial capital punishment," to dramatize the seventy of job loss for strike misconduct In reviewing the facts of each striker and the applica- ble Board and court precedents, I will be mindful of this expression 134 See Upland Freight Lines, 209 NLRB 165 (1974), enfd. 527 F 2d 766 (9th Cir 1976), and Keller Mfg Co, 237 NLRB 712, 713 fn 7 (1978) N.L.R.B. v. Reed & Prince Manufacturing Company, 118 F.2d 874, 886 (C.A. 1), cert. denied 313 U.S. 595; N.L.R.B. v. Alabama Marble Co., 185 F.2d 1022 (C.A. 5). Though "condonation may not lightly be pre- sumed from mere silence or equivocal statements, .. . [if it] clearly appears from some positive act by an employer indicating forgiveness and an intention of treating the guilty employees as if their miscon- duct had not occurred," then condonation has been established. N.L.R.B. v. Marshall Car Wheel and Foundry Co., 218 F.2d 409 (C.A. 5). To illustrate better the behavior of some of Respond- ent's nonstriking employees, I note the following major incidents of misconduct: (1) On October 24, Dave Smart drove his car toward the yard exit at a rapid rate of speed, almost hitting a striking picket. Linda McQueen kicked Smart's car. He exited the car, grabbed her by the neck and shoulders, and threw her down to the ground. McQueen hit her head, became dizzy, and was later taken to the hospital. At the hospital, McQueen was released after it was de- termined she was unhurt. (2) On or about October 5, James Lombardi was ar- rested for deliberately attempting to run down pickets on the picket line. This occurred after someone threw eggs at Lombardi's car. Schultz later bailed him out of jail. (3) Neil Simard and other nonstrikers sprayed ammo- nia into the face of pickets Valerie Mendoza and others. Other similar incidents involved the brandishing of tire irons, crowbars, or knives by nonstrikers. At brief 63, the Union describes incidents involving employees who originally were on strike, but returned to work before the strike was over. The acts of these persons are trivial, but it is true they were unpunished. In this case, the pri- mary issue is whether discharge of strikers is justified. Under Board law, very few, if any, of the acts commit- ted by nonstrikers would be grounds for discharge and, then, only if there was no direct provocation or if the acts were not impulsive and isolated. The Union further contends (Br. 65) that under the facts and circumstances of this case, only strikers guilty of a physical assault should even warrant attention. Of course, I cannot agree. I am required to consider each striker individually in light of surrounding circumstances including the severity and frequency of the misconduct at issue, and the acts of Respondent as reflected above.135 I begin with an incident that occurred in the early evening of August 23, when the strike was less than 24 hours old. b. The Hokstad incident Prior to the strike, Hokstad had taken a strident an- tiunion, antistnke position and clearly stated his intention not to strike. On occasion, his conversations seemed to be unduly provacative. Examples will be stated in discus- sions of individual strikers. On August 23, he was return- 135 Gibraltar Sprocket Co, 241 NLRB 501 (1979) 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing to the Aztec yard from an assignment about 7 p.m. A large number of pickets were on the line. Prior to making his turn from Twain into the yard, Hokstad had notified the dispatcher by radio that he was coming in. One of the pickets there was Brenda Leonard, wife of striker Walt Leonard. She had been on the line the entire day with her two children, one an infant, the other a young boy. The day was unusually warm and the baby had been crying due to the discomfort of the moment. As Hokstad turned into the yard, there is some con- flict about his speed. Because the strikers were engaging in mass picketing and had every intention of blocking the bus as long as possible even if Hokstad were moving too fast for conditions, the strikers had to assume part blame for what happened. In any event, several pickets, includ- ing Walt Leonard and Shelton, hit the bus with their picket signs and the bus struck Brenda Leonard in the bedlam. At the time of hearing, Brenda Leonard was separated from her husband and she never testified. However, all evidence indicates that she was only slight- ly injured, if at all. Later she was taken to a nearby hos- pital, treated, and released. Meanwhile, after Brenda Leonard was struck, several of the strikers literally went berserk. Harlene George, Walt Leonard, and Alan Shelton charged into the Aztec yard. The other pickets screamed that Zemba was a mur- derer and made continuous threats and epithets directed to him, Schultz, and Hokstad, who were all nearby, standing well inside the Aztec yard. Both Leonard and Shelton had picket sticks in their hands having stripped off the signs after the accident happened. They threat- ened Zemba with them and screamed that he was re- sponsible for the death of Brenda Leonard. Both men swung their sticks at Zemba, missing him by inches. While this was going on, Harlene George also rushed up to Zemba, making the same accusations indicated above and threatening to kill Zemba. Unlike the two men, George had nothing in her hands. However, she did strike Zemba with her fists, beating him several times around the neck and chest. Like Brenda Leonard, Zemba was only slightly injured, if at all, from this attack. George had to be pulled away from Zemba by a union official named Arellano, who never testified. Shelton also never testified."36 The above incident has led to a spate of lawsuits and countersuits involving the principals referred to above and the Union as well. I will provide additional details surrounding this incident in discussion of the individual strikers. As to Leonard and Shelton, there is sufficient evidence in the record regarding other incidents as well as the present matter to make an informed judgment. However, as to George, her fate will rise and fall on this incident because essentially she left the picket line short- ly after the incident. I will begin the discussion of the in- dividual strikers with George below, but first one addi- tional incident that merits special attention. 136 During the hearing, Shelton wrote a letter to counsel for the Union saying that he was living in Colorado and was unable to get to San Diego for the hearing due to financial reasons c. Union Solidarity Day, December 23 On this day, the strikers appeared on the line en masse. They were joined by representatives of other unions, who appeared to show support for the strikers. Also rep- resented was the local media, including a well-known San Diego television reporter. This reporter, Jim Gordon, was a witness at the hearing and unlike most other witnesses was a neutral.137 Gordon presented an edited videotape (C.P. Exh. 26) that showed the pickets and certain union officials in attendance. I have also ex- amined some photographs (C.P. Exhs. 23a, b, and c) that as the videotape reflects scenes taken at the Twain Avenue yard on the day in question. The essential misconduct complained of on this day concerned mass picketing causing a blockage of Zemba's car for about 30-45 minutes in the morning until the police arrived and escorted Zemba out of the yard. Zemba testified that as he drove up to the line, he asked the pickets to let him go through as he had an appoint- ment . They refused. After reviewing this incident, I have decided to disre- gard it entirely and not consider any striker' s alleged participation in it as a factor in the refusal to reinstate. In reaching this conclusion, I note the testimony of Gordon, who testified that Zemba had at least two op- portunities to leave before the police arrived, but failed to drive out. During the time that Zemba's car was blocked, two or three Aztec buses were allowed to go through with no problem. Of course, it might not be sur- pising that strikers would single out Zemba for more harsh treatment. Yet in addition to Gordon's testimony, I rely on my analysis of human nature. Give the presence of the media, including television cameramen and pho- tographers, would the pickets have wanted to embarrass high-ranking union officials by performing an unlawful act. I think not. I believe the pickets would have been on their best behavior at this point. On the other hand, Zemba did have an interest in putting the Union in a bad light and when I consider the totality of the circum- stances, I cannot credit his testimony about what hap- pened on this day. I turn next to the individual strikers. 4. The individual strikers a. Harlene "Sam" George According to Zemba, George was denied reinstate- ment because of her attack on him . 13e On the evening 13' Gordon was a member of a union hunself. However, this fact did not affect his testimony. Moreover, because he had covered the Aztec labor dispute from the beginning , he related incidents how both manage- ment and the Union had attempted to exploit the media for their own gain. He understood this as a necessary ingredient of any labor dispute and as part of his job Essentially, he remained unaffected by this. 138 It is unclear whether Zemba also considered George 's status as a picket captain and shop steward as factors in denying her reinstatement. However, the Board has held that union officials may not be singled out for greater discipline due to their status. Cf South Central Bell Telephone, 254 NLRB 315, 316-317 ( 1981). Generally the courts of appeals have not agreed with the Board on this issue As to other strikers who were picket captains or shop stewards, I have not relied on their status in reaching my decisions as to do so is contrary to Board law and because the evi- dence did not clearly show that Zemba relied on this fact in reaching his decision AZTEC BUS LINES 1067 this happened, George was a picket captain whose re- sponsibility in part was to prevent disorderly picket lines. Standing about 5 feet 3-1/2 inches, and weighing 110 pounds, George was 38 years old when she testified. Before going to work for Aztec, George had earned a registered nurse's degree and worked in pediatrics and in a hospital emergency room for several years. On August 22, George worked a shift as a busdriver from noon to about 9 p.m. Then, when the strike started, she joined about 100 other strikers. By the time Hokstad was driv- ing his bus into the yard, George had not slept for almost 36 hours. When the incident occurred, George was in a nearby phone booth making a telephone call when another striker ran up and shouted that someone had been hit by a bus. George ran to the line and saw Brenda Leonard with a blanket thrown over her. When she did not see either the child or the infant, she "freaked out . . . went crazy" (witness' terms), because she assumed that "Zemba had let someone hurt the baby." George testified that she could not remember what happened after this but, after the incident, union of- ficials told her to take some time off and, on October 1, she became inactive on the picket line. In analyzing this case, I reject any suggestion that this incident was staged by pickets as a pretext to make an attack on Zemba. The incident involving Brenda Leon- ard was an accident for which the Union and Hokstad must each share the blame.139 This does not end the in- quiry on George, however. In part, her actions were the result of hysteria caused by lack of sleep and the warm temperatures, and the animal exuberance of the strike. I find further that George, Leonard, and Shelton were not acting in concert pursuant to some prearranged plan; rather, each was acting spontaneously and individually in confronting Zemba.l4o In evaluating this evidence, I note first that this inci- dent occurred at the inception of the strike when the emotions of the participants were at a high pitch.141 This isolated incident of misconduct is in stark contrast to other strikers such as Leonard and Shelton, who were guilty of repeated misconduct. In addition, the striking of Zemba was impulsive and of minor consequence.142 The impulsive nature of the act is shown by George's training and experience as a nurse that under normal circum- stances would have instinctively caused her to attend to Brenda Leonard, the ostensibly injured person. Instead, she attacked Zemba, not even the driver of the bus in- volved in the accident. This is a close case. George is responsible for her lack of control caused in part by her lack of sleep. Zemba could well have been injured, but he was not. Accord- 139 Associated Grocers of New England, 227 NLRB 1200 (1976), enf granted in part, denied in part, and remanded in part 562 F 2d 1333 (1st Cu 1977) 140 Thus, as a general rule, each striker was responsible for his own misconduct and not for the misconduct of others NLRB v Sea-Land Service, 356 F 2d 955, 966 (1st Cir 1966), cert denied 385 US 900 (1966), Coronet Casuals, 207 NLRB 304, 305 (1973) 141 Kayser-Roth Hosiery Co. v NLRB, 447 F 2d 396, 400 (6th Cir. 1971) 142 Cf Star Meat Co, 237 NLRB 908 (1978), E-Systems. Inc, 244 NLRB 231 fn 1 (1979) ingly, based on the totality of the evidence, I find that George is entitled to reinstatement and backpay. b. Walt Leonard In contrast to George, the misconduct of Leonard was serious, continuous, and deliberate. I begin with his ac- tions during the Hokstad incident that need not be restat- ed here. Hoffman, a female nonstriker, testified that when she drove through the line on one occasion, Leon- ard unzipped his trousers, pointed to his private parts, and stated, "This is for you, Sweetie. We're going to give this to you one of these nights when you're not watching." Leonard also made threats against Zemba and Hokstad and their families. The circumstances of these threats made on August 23 indicated they were to be taken seriously.143 Also on August 23, Schultz ob- served Leonard deliberately break a taillight of a bus parked on the lot, using his picket stick. On two occa- sions, Leonard spit on Reese, a nonstriking employee, as he drove into the yard in his bus. Reese and another nonstriker named Swick were repeatedly threatened by Leonard, who frequently brandished a picket sign in a threatening manner. Leonard's use of verbal taunts directed toward Zemba and Harrison was extensive and indefensible. Leonard called Zemba "a fucking Jew"144 and a "cock-sucker." To Harrison, Leonard asked, "is Zemba eating you, how do you enjoy Zemba's cock"; "another night for a good fuck, Ellen." "Is Gus that good."1145 Finally, Leonard admitted at hearing that he threw eggs at buses (he told a Board agent he threw none) at cars on two occasions and at persons on two occasions. By any standard, the totality of Leonard's conduct renders him unfit for reinstatement and backpay and I will so recommend to the Board. c. Alan Shelton This person did not testify and I will evaluate the evi- dence against him accordingly. I begin by reviewing Shelton's actions on August 23 as reflected above. In ad- dition, on October 7, Shelton spit on Mitch Cohee, a nonstriker, as he walked across the picket line.146 Inger- soll observed Shelton, along with another striker named Kipple, jump on a gate at the Aztec yard and knock it down.147 On another occasion, Shelton followed 143 See Hedstrom Co, 235 NLRB 1198 (1978) 144 The use of racial and religious epithets are factors in evaluating a striker's fitness to return to work. Old Town Shoe Co, 91 NLRB 240, 273-274 (1950) 145 Picket line language of this type is offensive, defamatory, and op- probrious. Ben Pekin Corp., 181 NLRB 1025, 1028 (1970) However, the speech does not automatically lose the protection of the Act. Here it is at least a factor in the totality of the striker's conduct Although the case of NLRB v. Longview Furniture Co, 206 F 2d 274, 276 (4th Cir 1953), is in point, the court refused to enforce the Board's Order and therefore I am bound to disregard it 146 Spitting directly on a person is serious misconduct because of the likelihood of a violent response Cf Canther's Stores, 262 NLRB 1381 (1982). Here this was no isolated impulsive act, but part of a pattern of general violent activity 144 Although no estimate of damage was given, I consider this serious property damage. Giddings & Lewis, 240 NLRB 441 (1979), NLRB v. Trumbull Asphalt Co, 327 F 2d 841 (8th Cir 1964) 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schultz, who was driving a nonstriker home after work. When Schultz first saw Shelton, it was after the non- striker had been dropped off at an intersection, and Schultz saw Shelton in his car, carefully following (per- haps stalking) the nonstriker to see where he lived. Schultz went back and picked up the nonstriker again; then drove around until Shelton was lost.148 On another occasion, Schultz drove Hokstad's car through the picket line while Hokstad left the yard by a different route. Shelton stated, "Why didn't you have him come through here, then we could beat his ass." Schultz heard Shelton ask Whitey Swadner, a nonstriker, to come across the street so he could kick his "ass" and settle the strike right there. I find that based on the totality of Shelton's misconduct, he is not entitled to reinstatement and back- pay. d. Clark Adams This striker engaged in occasional blocking of vehicles for short periods of time. On several occasions, he opened emergency doors of buses as a tactic to harass nonstrikers. On the first night of the strike, Adams called Zemba an "asshole." Schultz observed the witness di- recting bus traffic into Twain where it was unsafe. The above incidents are all trivial in nature. No damage occurred to any property. Given the violent nature of the strike, it was unlikely that any nonstriking driver would rely on traffic signals from a picket. Final- ly, there was a report that Adams threw coffee on some- one, but Adams denied it and I cannot credit the report. Accordingly, I find that Adams is entitled to reinstate- ment and backpay. e. Nancy Alferos Alferos called nonstriker Claybough a "fat fucking bitch." Alferos also kicked and hit buses but there is no evidence that damage resulted. On several occasions, nonstrikers Bevers and Swick were temporarily blocked for brief periods of time. 1149 Some of the testimony at hearing relates to the alleged activities of Alferos' hus- band. Because there is no basis to conclude that Alferos is responsible for the acts of her husband, I decline to consider this evidence. Finally, Zemba testified that on several occasions, Al- feros followed him on foot to the Jack-in-the-Box Res- taurant and called him names such as "son of a bitch." Like the other incidents, this, too is a minor incident. Based on the totality of her conduct, I find that Alferos is entitled to reinstatement and backpay.1eo 148 Under Board law, the mere following of Schultz and the nonstriker is not considered serious Gibralter Sprocket Co., 241 NLRB 501 (1979) In this case, however, there were other factors that made the following more serious. For example, during this period of time, the homes of some nonstrikers were being vandalized 148 This temporary blocking is not serious conduct under Board law Owen Joist Corp, 248 NLRB 589 (1980). 150 On cross-examination, Alferos admitted throwing eggs at buses about six times as the buses were entering or leaving the yard. Although not appearing to be serious under Board law anyway, I decline to consid- er this evidence, because it does not appear she was denied reinstatement in whole or in part for this misconduct f. Norman Amador The record on this striker indicates that he is one of the most active strikers on the line committing acts of misconduct. To begin, he threw an egg at and hit the car of Kitty O'Brien, a nonstriker. She made a citzen 's arrest and pressed charges. About 2-3 days later, Amador told her if she continued to press charges, her husband would be collecting widow's benefits. 1 s 1 I regard both the throwing of the egg and subsequent threat as serious mis- conduct. The threat was given currency by Amador's propensity for violent behavior. In a similar vein, Amador told Hokstad that if he did not stop working, he would get his lights punched out as Stoker had done. A few days prior to this remark, Hokstad had been phys- ically assaulted by Stoker. When a friend of Hokstad's came to Aztec to apply for work, Amador jumped on his bumper and began to rock the car. Hokstad's friend de- cided not to apply for work at Aztec. Nonstriker Swick related how Amador challenged him to a fight and threatened to "kick his ass." Nonstriker Reese testified to a barrage of eggs thrown at his moving automobile and causing some minor dents and paint damage. A female striker named Hewin was followed by Amador and another striker in a truck after work. Hewin pulled over after a short drive and Amador pulled in front of her, got out of the truck, and began to approach her vehicle. She then sped away. Zemba was referred to repeatedly by Amador as "fuckbrain" and was asked whether he was "laying Ellen [Harrison] in the office." Amador asked Schultz whether "he liked sucking Zemba's cock"; he referred to Schultz as a "stupid mother-fucker." Finally, in Chula Vista, during an altercation between nonstrikers Orville Swadner and Maureen Fortner on one side (the latter did not testify) and Amador and Roy Stoker, on the other side, I find that Amador grabbed Fortner around the neck and attempted to choke her while she was attempting to call over her bus radio for assistance. Based on the totality of Amador's conduct, I find that he is not entitled to reinstatement or to backpay. g. Bob Baker and Don Lilly'52 Known to the other strikers as "Frick and Frack," these two were virtually inseparable during the strike and before. With a few exceptions, the evidence as to one will apply to the other. On several occasions, Lilly walked across the hood of vehicles attempting to enter the yard. These were owned by nonstrikers and a cus- tomer of Aztec. Lilly also threw hot liquid, either coffee or soup through a bus window opened by another strik- er, hitting nonstriker Swick. Baker threw a football at Swick's car on one occasion. Baker and Lilly both owned motorcycles. While new employee Michael Com- i s 1 The case was ultimately dismissed in court because , according to O'Brien, the judge felt a lot of people were throwing eggs and Amador should not be singled out. 152 Unlike Baker, Lilly did not appear at the hearing to testify I will consider his absence from the case as raising an adverse inference against him AZTEC BUS LINES 1069 fort was taking a driving test on a bus, they followed him and interfered with the operation of his vehicle.153 Baker threatened to rape the wife of nonstriker Jacobson because the latter was crossing the picket line. This was after Baker and Lilly had followed Comfort and Jacob- son for about 8 miles. After this episode, Baker and Lilly were arrested by police and charged with "terrorism." Following dismissal of the charges in court, Baker said to Comfort, "Your time is coming mother-fucker." Zemba and Schultz were also chased by Baker and Lilly on motorcycles. This occurred on the second or third day of the strike, continuing for several miles, with Baker and Lilly following closely behind. Zemba finally had to go through a red light to lose them. In addition, several times, Baker and Lilly rocked Zemba's car as he was attempting to leave the yard. Both strikers made countless serious threats to harm Zemba and members of his family. According to nonstriker Mitch Cohee, Baker and Lilly both spit on him as he walked through the line on Octo- ber 7,154 Based on the totality of the evidence above, I find that neither Baker nor Lilly is entitled to reinstatement and backpay. h. Karen Balding During the course of the strike, Balding called Zemba names such as "Baldy," "Asshole," and "idiot." She re- ferred to Harrison on several occasions, while on the picket line, as "Zemba's mistress." In addition to this misconduct, Balding participated in some hitting of vehi- cles, but there is no evidence that damage was caused. Finally, Balding participated with others in the picket line in blocking of buses and vehicles for short periods of time. Based on the totality of the evidence above, which I can only characterize as patently trivial, Balding is enti- tled to reinstatement and backpay. i. Janel Bock Some of Bock's actions on the picket line were petty and trivial. She opened emergency doors on buses, and stood in front of nonstriker Clayough's bus while shout- ing, "hit me, you bitch and see what happens." As buses came through the line, she would frequently whack them with her picket sign, but causing no damage. To Zemba, she threatened, "your life is short, you are not going to be around any more." She told Kitty O'Brien that she had better know where her kids are.1 s s These threats were unaccompanied by any gestures or movement that would provide additional emphasis. Other acts of Bock were more serious. For example, on one occasion, she threatened to get Zemba's camera and smash it into his face. On another occasion, she caused some minor damage by throwing rocks at the car 166 When pulled over by a California Highway Patrol officer, riding on the bus to monitor Comfort's test, Lilly disobeyed the officer's order and sped away Baker stayed and told the officer that he wanted to dis- cuss the strike with a female passenger also riding on the bus 164 Later at the Jack-in-the-Box Restaurant, Cohee had a fist fight with Baker and Lilly I disregard this incident entirely as it appears that Cohee was at least partly responsible for it 156 This statement is ambiguous and does not represent a clear threat of nonstriker Swick while he was stopped for a light. This caused slight nicks in his car.156 Bock also broke the handle of a truck owned by nonstriker Reese, al- though this damage seemed to be inadvertent. Bock was 28 years old and described herself as a clown on the picket line. After she testified, Hokstad met her in the hallway of the Federal building and advised her as a friend that if she returned to work at Aztec, she might be in danger. This warning was based on Hok- stad's perception of the mood of the nonstrikers who were angry at the strikers for their violent strike activi- ties. To the extent that Bock's activities present a close case, I am persuaded by Respondent's unfair labor prac- tices and condonation of nonstriker activities that she is entitled to reinstatement and backpay and I so recom- mend. j. Ella "Jeannie" Boothe Prior to the strike, Boothe was involved in a bitter ar- bitration over discipline imposed as a result of an acci- dent. At one point during this procedure, Zemba re- ferred to Boothe as a "killer behind the wheel." Despite the opportunity provided by the strike to settle old scores, this did not occur. Some of the evidence relating to Booth concerns the alleged acts of her "husband." However, I find no reason to consider this evidence as there is no basis for attributing his acts to Boothe.157 After the August 23 Hokstad incident, Boothe threat- ened to kill Zemba or have her husband beat him up. These comments were made in the excitement of that moment and were not serious. To Harrison, Boothe made several comments of a suggestive nature, such as whether she was Zemba' s mistress or asking was Zemba good. Finally, Boothe participated in blocking vehicles on 8 to 10 occasions for brief periods of time. Based on the totality of the evidence above, Boothe is entitled to reinstatement and backpay. k. Donna Bozick Like the last witness, Bozick's spouse appeared on the picket line from time to time and allegedly committed certain acts of misconduct. I do not consider them, as there is no basis for attributing them to Bozick. Bozick was on the picket line only until December 6, when she left due to medical problems, and did not return. Harrison was not aware of any misconduct and was uncertain why she had not been reinstated. Similar- ly, Zemba could not recall any reports of misconduct about her. In disregarding the evidence attributed to her husband, I find virtually no misconduct attributable to her. I find that Zemba could not have held an honest belief that she had committed serious misconduct. She is clearly entitled to reinstatement and backpay. 156 See MP Industries, 227 NLRB 1709, 1716 (1977) Although this conduct is not condoned, it is not serious enough to warrant discharge 167 Whenever a spouse of a striker is referred to, these spouses are either nonemployees or past employees unless otherwise stated. In this case, Boothe stated she had lived with a man for a long period of time but was not formally married to hun 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1. Phil Burkhart This striker was 22 years old at the hearing. He en- gaged in serious acts of misconduct during the course of the strike. In September, Harrison and a secretary named Cheryl Foti were walking through the line and Burkhart swung his picket sign at them, missing them by inches.158 Then Burkhart said, "Oops, I almost didn't miss." Burkhart followed nonstriker Swick home on one occasion at night and threatened "to beat his ass." An- other nonstriker named Whitehead was leaving the yard on one occasion on his motorcycle. Someone hit him in the back with two eggs. Then as he stopped for a light about one-half block away, Burkhart came running toward him." 5 a Burkhart made extensive, repeated, and serious threats to Zemba. He told Zemba that he was Corona's son and intended to kill him for her. On 50 to 60 occasions, Burk- hart threatened to go to Zemba's home and kill everyone there. 180 In addition, Burkhart frequently blocked Zemba by walking in tight circles and delaying him for several minutes. Burkhart also made several remarks to Zemba about Harrison such as, "are you getting into Ellen." Finally, Burkhart threw eggs at buses and other vehicles about 10 to 15 times. On the basis of all the evidence, I conclude that Burk- hart is not entitled to reinstatement and backpay. m. Inez Camacho Much of the evidence involving this striker concerned his dog, which because of its notoriety was brought into the hearing room. The dog stood 2-1/2 to 3 feet tall and weighed between 60-70 pounds. Comacho frequently took the unleashed dog to the picket line and would threaten to have the dog attack Zemba. Once in Zemba's presence, he told the dog to go "piss" on Zemba. There is no credible evidence the dog actually attacked anyone or obeyed any other ill-advised command. In the hear- ing, the dog was friendly and playful even though the room was warm and filled with strange people. Besides using the dog in the manner indicated, Comacho en- gaged in blocking of vehicles for brief periods and hit- ting of buses without causing damage as they entered the yard. Nonstriker Hoffman testified that Comacho was out jogging once while she sat in a parked bus. He ran onto the bus and told her that he would not hurt her or throw rocks at the bus, because it was she. It is hard to believe that assurances against misconduct itself constitutes mis- conduct. Another nonstriker, Hokstad, also testified. Once Comacho said to him as he was about to begin a bus run for the day, "You're at work and your wife is at home alone and you'd better think about that." On an- other occasion, Hokstad was coming to work climbing the back fence thereby avoiding the pickets. He was con- fronted by Comacho and his dog. Comacho stated if you come back over the back fence, he would "kick his ass." None of this misconduct including the threat to Hok- stad is serious enough to bar reinstatement. I recommend that he be reinstated with backpay. n. John Chasteen As the last striker was accused of misconduct involv- ing his dog around the picket line, this striker occasional- ly used one or more hand puppets on the line. Using the puppets, Chasteen frequently threatened Zemba by saying, "You will be dead, I'll kill you." Chasteen also used a puppet to call Zemba names such as "asshole" and "motherfucker," and to ask, "What was Ellen like." Like Zemba, Schultz was also threatened when Chas- teen, through the puppet said, "Sooner or later, we'll get you." The use of the puppet in the manner described above detracted from the seriousness of the conduct and seemed to me more for the amusement of the other pick- ets than any other purpose. Another incident involved nonstriker Whitehead who was followed in his bus by two cars containing strikers. When the cars passed him, they slowed down, impeding his progress. Chasteen was in one of these cars and a man named Barker was in another. This former striker, Barker, decided at some point to cross the picket line and return to work, when Zemba either knew or should have known of his misconduct involving Whitehead's bus. It is unnecessary to evaluate Chasteen's misconduct with regard to the bus; because Zemba took Barker back, he condoned the misconduct. t 6 t Based on my review of all the evidence regarding Chasteen, including some minor blocking of vehicles, I conclude he is entitled to reinstatement and backpay. o. Jan Corona As has been noted earlier, this striker was chief shop steward, and was the highest ranking union official em- ployed at Aztec. In accord with my understanding of Board law, I am not to weigh in aggravation of her mis- conduct, the fact of her union status.182 Accordingly, I do not consider this fact.163 I also must disregard for different reasons, the testimo- ny of nonstriker Dugent, who testified that Corona, wearing a blond wig, struck and broke his headlight, by swinging a picket sign as he drove through the picket line. Because there is no evidence that Corona ever wore a blond wig to the picket line, I do not fmd the testimo- ny of Dugent to be reliable. Also, to place Corona's misconduct in proper context, I do consider evidence involving Corona prior to the ise The picket signs were attached to fairly good-sized pieces of wood. (See G.C. Exhs 62 and 63) Although there is conflict about the exact size, it suffices to say that a person swinging a picket stick at an- other which just misses would cause great fear in the putative target 189 Whitehead then pulled around the corner and offered to fight Burkhardt. I do not condone this, but still find some misconduct by Burk- hart in the incident that I must consider 160 Zemba's address was in the telephone directory and a matter of common knowledge 161 Retail Store Union v. NLRB, 466 F 2d 380, 385-386 (D.C Ctr 1972). 182 Hammermill Paper Co, 252 NLRB 1236 ( 1980), enfd 658 F 2d 155 (3d Cir. 1981). Cf. Szewczuga v NLRB, 686 F.2d 962 (D C Cir. 1982) 169 In this case, Corona was the only Aztec striker to be on salary from the Union during the strike as opposed to merely receiving strike benefits. She received $6.25 per hour for 40 hours or more per week. In my opinion, this fact would not change the rule that her status as a union official should not be considered by me AZTEC BUS LINES strike, such as a bitter personal attack by Zemba against her during a bargaining session. In addition, Zemba at- tempted to restrict Corona's access to Aztec personnel files and administrative offices, thereby obstructing the Union's right to gather information for the processing and filing of grievances.164 From other remarks Zemba made to Reynolds and Patton about her, it appears that Zemba's hostility in large part was directed at Corona's life style and sexual preferences. 1165 Keeping all this in mind, I turn to review Corona's activities. To begin, there is little question that Corona made no serious effort to control the misconduct on the line. The Union kept a running log of day-to-day activities. De- spite numerous incidents of picket misconduct, there is no evidence that any incident was recorded or of union discipline of any picket. Corona frequently gave oral in- structions regarding forbidden conduct. For example, she told strikers not to throw eggs. However, the strikers ig- nored her orders with impunity, particularly since the picket captains appointed by her were not recording or otherwise not reporting incidents of misconduct and, in some cases, were committing multiple acts of misconduct themselves. On occasion, she ordered an intoxicated striker to leave the line and the person left. However, this type of control occurred infrequently. I make these findings above, in case higher authority finds that I erred in disregarding Corona's union status. At the very beginning of the strike, Corona and Yelkey prevented a mechanic from coming to work. However, the mechanic never testified and the credible evidence does not show that unlawful means were used to deter the mechanic from entering the yard. On an- other occasion, Corona told Zemba that she was coming over to his house to picket. This never occurred, even though she publicized Zemba's address on the line. Be- cause the address was public and no misconduct was threatened, I fail to see how this was misconduct at all.i66 Another nonstriker named O'Brien testified that a small child threw eggs at her car and then got into Coro- na's vehicle. I cannot credit this testimony because I do not believe the child was Corona's-her children were much older. Even if the child got into Corona's vehicle, this is an inadequate basis to impute this misconduct to Corona. Based on the totality of all the evidence regarding this striker summarized above, including Respondent's provo- cation, I must conclude that Corona is entitled to rein- statement and backpay. 1 64 According to Zemba, Corona made several remarks shortly after the strike began, such as that it was her turn to get him for his statements about her at the bargaining table Although I find she made these re- marks, she never used a gesture or other action to give credence to her threat Under the circumstances, I do not regard her remarks as senous misconduct 188 As an example of Zemba's hostility to Corona , he testified that she had some connection to the Mexican underworld in Tijuana There was no credible evidence whatsoever to support this conclusion 188 I make no fording about whether such picketing would have vio- lated state law, because it never occurred 1071 p. Michael Doering On the first night of the strike, Doering called to Zemba to come out so Doenng could beat his "ass." This was followed later by several threats regarding Zemba's family such as, "You won't have your family to return to" and "Your family has been taken care of." After George's attack on Zemba, Doering stated, "We'll get you for sure next time." This striker was one of the most active egg throwers on the picket line. He threw an egg at a moving school- bus in October and Schultz subsequently testified against him in local court for committing this act. There Doer- ing was convicted of malicious mischief. i 6 7 Similarly, Doering stood in front of Hokstad's bus as it was exiting from the yard and threw several eggs at the windshield. Doering told the Board agent in an affidavit that he had not thrown any eggs. For this reason, and because Doer- ing was exceptionally evasive in his testimony, I found his credibility to be very low. Although the throwing of eggs at moving vehicles seems to me an inherently dan- gerous activity, the Board takes a more tolerant attitude toward this activity. 168 I am, of course, bound by Board law. However, I will at least consider these episodes as factors in reaching my ultimate decision on the totality of the evidence. 16 a Doering made a number of comments to people that were calculated to lead to violence. He told the husband of a nonstriking female employee as the two rode out of the yard that the husband had a sexual disease. Doering referred to Zemba as a "fucking Jew." He asked Zemba, "How was Ellen to lay" and referred to Zemba and Har- rison as they crossed the line as "cock-suckers." On one occasion, Doering refused to stop blocking the Aztec yard entrance until he was physically pushed back by police. As buses entered or exited the yard, Doenng fre- quently struck the bus and in some cases the windshield with his picket stick. However, there is no evidence that any damage was done. Finally, on at least two occasions, Doering called O'Brien, a nonstriker at work, and the first time stated, "We know where you live and we're going to get you." The second time, Doering muttered obscenities. Based on the totality of the evidence regarding Doering's mis- conduct, I conclude he is not entitled to reinstatement and backpay.170 q. James Fenderson On the second day of the strike, Fenderson asked Zemba to come out so Fenderson could "whip his ass." 187 Doenng testified this conviction was reversed on appeal 168 MPlndusrries, 227 NLRB 1709 (1977) 188 It was represented at the hearing that throwing objects at a school- bus is a violation of California state law, whether the bus is occupied or not occupied with children Even if true, it does not appear that state law woud supersede the Board's rulings regarding the throwing of eggs at vehicles, including schoolbuses 170 Some of the evidence regarding this striker concerned articles written by him that were critical of Aztec and that were published in a small newspaper during the strike At the hearing, Doering invoked the fifth amendment in response to certain questions about his activities on the picket line None of the incidents referred to in this footnote was a factor in my decision regarding his reinstatement 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The same remark was made to a nonstriker named Swick. Once when Zemba was leaving the yard, he said to Zemba, "Stop your car and get out, I'm going to take care of you." On a few occasions, Fenderson also opened emergency doors of buses and slapped at buses with his sign as they went through the line. No damage resulted. At the hearing, Fenderson was most notable for his testimony regarding an altercation between strikers Stoker and Amador and nonstrikers Swadner and Fortner in Chula Vista. His evidence on that subject will be summarized in a discussion of Stoker's case, below. Despite the fact that Stoker was his friend, Fenderson did not involve himself in the incident. At the time of the strike, Fenderson had a grievance pending against Aztec. Although I cannot find that the grievance was the cause of his failure to be reinstated, I do find based on the totality of the evidence that his mis- conduct was trivial. Accordingly, I find that he should be reinstated with backpay. r. Patricia Fowler In December, Fowler had an operation on her leg and was forced to use crutches in order to move about. All or most of the evidence against her is for a period of time prior to December. When the strike started, she was a picket captain on the 4 p.m. to midnight shift, and again, I do not consider that fact in aggravation. In her role as picket captain, Fowler played a central role in not only committing acts of misconduct herself, but also encouraging others to do the same. Once Gordon Hall, a union officer, dropped off eggs to the picket line and Fowler shouted, with delight, "Our am- munition has arrived." In fact, she threw an egg at Cohee's van, but apparently she missed. In Chula Vista, Fowler asked nonstriker Claybough to fight her , "one on one." As nonstriker Hewin was attempting to drive her vehicle out of the yard after work, Fowler stood in front of the vehicle to block it, while striker Linda Peckron spit through the open window into the face of Hewin. Under the circumstances, I impute Peckron's conduct to Fowler. In a similar incident, where Fowler acted as part of a team of errant strikers, she tried to open the door of non- striker Swick's vehicle, thereby distracting him. Then strikers Peckron and Lilly threw hot liquid on him through an open window. On another occasion, Fowler opened the door of a bus being driven by nonstriker Law, and Peckron threw an egg into it. Due to this pat- tern, I find in all these incidents that she has responsibil- ity for them as she was acting in concert with the other strikers. As a driver walked through the picket line, Fowler swung her sign at him, but missed. Zemba and Harrison were the targets of repeated threats and sexual comments as they went into and left the yard. Zemba was told 20 to 30 times, "You will be dead by September"; "you are going to be killed," "your family is going to be killed," and similar such statements. Fowler said to Harrison on many occasions, "You are dead meat." As to sexual comments, Fowler asked Zemba, "Does Ellen [Harrison] give good head?" "Are you eating Ellen?" Then to Harrison, Folwer asked re- peatedly, "Did you get hired because of what you have between your legs?" Fowler was a member of a group of female pickets who frequently changed sexual slogans on the line-di- rected to Harrison who was either attempting to cross the line or somewhere nearby. These slogans, some with Lesbian content were repeated over and over and over. An example, "Come out, Ellen, we've got something for you," or "She's Connie' s meat." 1171 Unlike other strikers who blocked vehicles for brief periods, Fowler blocked vehicles for extended periods, such as 15 to 20 and sometimes 30 minutes. On two oc- casions, she had to be moved by police force before a vehicle could move. She admitted blocking nonstriker Swadner for 25 minutes one night. Fowler worked double picket shifts on most days for no extra money. In light of her extensive misconduct, it is not surprising that she became involved in direct con- frontations with nonstrikers. Dugent, for example, threat- ened her with a crowbar after someone hit his car with an egg. I have considered all such evidence as well as evidence of Fowler's misconduct and conclude on the basis of the totality of the evidence, that she is not enti- tled to reinstatement nor backpay. s. Dale Fox This striker was perhaps the most credible striker at the hearing. While on strike, he received his final pay- check and determined that he had been overpaid in vaca- tion pay. He returned the $200 overpayment and, at hearing, produced a $200 canceled check to prove it. Married, with four children, the witness is a candidate for the ministry and youth director at a local Baptist church. His alleged "misconduct" consisted of a few calls to the Aztec office during the strike to engage management in a conversation about the issues in the strike. Another time, Zemba walked through the line and the witness shouted, "I know where you're going, Zemba's going to pee ..." In another telephone call to Zemba, after the incident with Brenda Leonard, Fox called Zemba a "murderer" and said Zemba would die for that. On the basis of the totality of the evidence, Fox is clearly entitled to reinstatement and backpay. If what Fox did was misconduct, it is so trivial as to deserve little time and effort. t. Fred Franz Within the first 3 weeks of the strike Franz spit on a car driven by nonstriker O'Brien. This act is consider- ably different than spitting on an individual and much 171 I have reviewed the cases of A. Dute Pyle, Inc, 263 NLRB 744 (1982), and Georgia Kraft Co, 258 NLRB 908 (1981) In those cases, the Board has stated its policy regarding threats and verbal taunts of a sexual and obscene nature, finding them generally to be insufficiently serious to deny reinstatement These cases do not apply to Fowler and other strik- ers such as Jellison and Lindemann ( 1) In most or all the affected strik- ers, there was additional misconduct committed, (2) where the threats and sexual statements were made, the statements were repeated, blatant, and flagrant and not to be confused with mere name-calling, and (3) the comments seem to me calculated to provoke violence on the part of the targets See Canther's Stores, 262 NLRB 1381 (1982) AZTEC BUS LINES less severe. 17 2 In late September, Franz apparently mis- took a female customer of Aztec for a new job applicant. As she crossed the picket line, Franz shouted, "You cocksuckers are taking our jobs away from us and we'll get you."13 Franz frequently called Zemba a "prick" as he walked or drove through the line. Once he used this term and asked Zemba why he did not answer his phone at night. At this time Zemba was receiving a number of harassing phone calls at his home. Franz' comment does not show that he was making the calls and there is no other evidence on the matter. Franz also made comments to Zemba of a sexual nature, but these were primarily suggestive rather than patent obscenities. He asked Zemba, for example, "Are you making all the women happy?" Franz was arrested by the San Diego Police Department and later convicted of the "crime" of blocking the sidewalk. He was sen- tenced to time served (about 15 hours in jail). Franz also engaged in some limited blocking of vehicles and other petty harassment. In mid-October, Franz, age 57 years old, suffered a heart attack and essentially left the picket line perma- nently. I consider his ill-advised name calling a relic of his former career in the Navy from which he is now re- tired. None of his activities are serious enough to pre- clude his reinstatement and I recommend that he be put back to work with backpay.174 u. Donna Friege Some of the evidence presented here related to the ac- tivities of Fnege's husband, an active duty Navy man. I do not consider any of his activities relevant to the ques- tion of whether Friege should return to work. Like her husband, Freige, herself, was connected to the Navy Reserve in an active duty capacity during at least part of the strike. Among other acts she committed was "giving the finger" to nonstriker Hoffman as she drove her bus past Friege. Friege also told two non- strikers, Hoffman and Whitton, that they would get them. To Zemba, she stated that her husband would get him. She asked Zemba whether he was keeping "Ellen [Harrison] and Flo [Ybarra]" happy. In the first 2 weeks of the strike, Friege hit O'Brien's bus with a large picket sign, but there is no indication of damage occurring. Freige also engaged in petty acts such as opening emergency doors, and giving unsafe signals to buses as they exited from the yard. Perhaps the highlight of Friege's testimony was her account of a picket line brawl involving herself, her hus- band, and a nonstriker named Jacobson, who never testi- fied. Friege's colorful testimony involved pinching, slap- ping, stepping on glasses and breaking them, and stealing 172 See Associated Grocers of New England, 227 NLRB 1200, 1207 (1977), enf. granted in part, denied in part , and remanded in part 563 F 2d 1333 (1st Cir 1977) 173 Franz and another striker named Lindemann were accused of fre- quently referring to Zemba, nonstrikers, or others, as "cocksuckers " In what I consider to be patently frivolous testimony, they both testified they were really using the term "copsucker" or some other nonsense var- iation of the word in question 174 I offer no opinion as to Franz' current physical condition or capac- ity to return to work I leave these matters for compliance 1073 keys from the car of one of the participants. As the police who arrived on the scene, heard each side's ac- count, and left without arresting anyone while shaking their heads, I decline to detail Friege's account and ap- portion blame. It appears each side was partly responsi- ble. I can find nothing in the incident to affect Friege's reinstatement. Indeed, in considering the totality of Friege's conduct, I must conclude that she is entitled to reinstatement and backpay. v. Stuart Grossman When the strike started, Grossman was on vacation and he did not return to work during the strike. Zemba was vague as to him, thinking he may have possibly re- signed. Grossman engaged in some limited blocking of vehi- cles and hit buses occasionally as they went by the picket line. I question Zemba's good-faith belief that Grossman was guilty of serious misconduct. He is clearly entitled to reinstatement and backpay on this record. w. Angel Huezo This striker did not testify at the hearing. A single wit- ness, Zemba, provided the basis for failing to reinstate Huezo. Although Huezo engaged in some blocking of vehicles, there were two primary acts described by Zemba. During the second week of the strike, Zemba observed Huezo with an object in his hand running alongside a highway coach bus as it pulled into the yard. After the bus parked, Zemba noticed a long scratch mark on the side of the bus, about 2-feet long, which had not been there before. The other major incident was a threat that Huezo stated to Zemba, to get Zemba's son. Huenzo knew Zemba's son, as both had attended the same suburban San Diego high school together. Although the cost of repairing the damage to the bus was not stated, the deliberate and malicious act that Huezo committed is serious misconduct.175 In addition, the threat against Zemba's son, who was known to Huezo, is serious. I find, based on the totality of the evi- dence, that Huezo is not entitled to reinstatement and backpay. 17 6 x. Colleen Jellison This witness was another member of a group of female strikers who repeatedly chanted sexual slurs directed to Harrison: "Come out . . . we have something for you ... it won't hurt . . . it's better than Zemba's cock." In addition, Jellison directed comments toward Harrison such as, she wants to get into Ellen, Ellen is her "meat," and referring to Ellen as a "cocksucker." Jellison also told Ellen, "Zemba is screwing other women, aren't you jealous." These remarks were usually directed to Zemba and Harrison as they crossed the picket line and were frequent. About six times, Jellison turned her posterior to Zemba, and stated, "Kiss my ass." 176 Compare Coronet Casuals, 207 NLRB 304, 307 (1973) 176 In further support of my conclusion , I draw an adverse inference from Huezo's failure to testify without explanation 1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jellison called Schultz a "fucking liar" and threatened to get him. In addition, Jellison engaged in blocking of vehicles for up to 15 minutes, hit buses as they went through the line, and tried to open doors to buses. This 29-year-old striker was the former roommate of striker George whose case was considered above. Al- though mere foul and vile language is not generally dis- qualifying, in this case, I hold that the repeated and re- pulsive nature of the remarks directed to Harrison, to- gether with the blocking and other petty acts of harass- ment, make Jellison unfit for reinstatement and backpay. I will so recommend to the Board. y. John Kipple In early September, Schultz was attempting to enter the Aztec yard when he was blocked by Kipple and others for 20-25 minutes. Several other persons were blocked by Kipple as well, Swick for example. In addi- tion, Kipple either threatened to kick Swick's "ass" or invited him out of his car to fight with Kipple. As Inger- soll was attempting to drive through the line, Kipple and another striker pounded on the fender of Ingersoll's car and dented it. In concert with Shelton, Kipple broke a gate in the Aztec fence. In mid-December, Kipple com- mitted still another act of vandalism by breaking a bus windshield wiper off. On another occasion, Ingersoll was attempting to go through the line to work with his car window open. Kipple threw a cup of beer in Ingersoll's face. In addition to vandalism, Kipple made vile and repul- sive remarks on the line. To Harrison, he asked, four or five times, "Do you like sucking Zemba's cock"; "How do you like sleeping with the boss."177 Kipple was 35 years old at the time of the hearing. A college graduate, he was then a graduate student of the University of California at San Diego. During the strike he threw eggs at buses 20 to 30 times, explaining that, in his opinion, this activity was harmless and an appropriate release of tension and energy. In his statements to a Board agent prior to the hearing, Kipple refused to answer certain questions about the throwing of eggs while denying he hit vehicles with his picket sign. At hearing, he admitted hitting vehicles with his sign on two occasions. Zemba also had several encounters with Kipple. Once Zemba was jogging about 2-3/4 miles from his home in La Jolla. Kipple pulled up in a car and yelled, "you son of a bitch, we'll get you." Other threats were directed to Zemba on three or four occasions. Another striker named Ondrechen confronted Zemba with the pointed end of his picket sign and Kipple told Ondrechen to 177 When Harrison was asked to testify to the remarks of Kipple, she became distraught and was unable to continue for a time. I took a brief recess for her to compose herself When she returned, she finally gave the relevant testimony. I watched her closely She trembled with fear and embarrassment and wept on the witness stand as she recounted the remarks of Kipple and another striker, Lindemann Harrison had a prior background as an administrator for a fine arts museum and before that she worked as a comptroller for 6 years for a manufacturing plant I cannot conclude that she was an unusually fragile person . I do conclude that she was deeply affected by the language directed at her and Zemba, in her presence She was verbally assaulted by the remarks and there was emotional injury shove it into Zemba's face. Finally, Kipple enjoyed walking close behind Zemba as the latter walked to the Jack-in-the-Box Restaurant. On one occasion, Kipple pushed ahead of Zemba in line, but never ordered food. Based on a totality of the above evidence, I find with- out any doubt whatsoever, that Kipple is not entitled to reinstatement or to backpay. z. Michael Kirkpatrick During the strike this striker engaged in a number of unusual activities; for example, he took a hand-held spot- light and shined it into the Aztec yard at night. When the police ordered him to disconnect it, he complied. In addition, Kirkpatrick climbed the roof of an adjoining building and used a slingshot to shoot marbles178 into the Aztec yard. One almost hit Schultz. Other marbles were thrown at Zemba by Kirkpatrick. He also threw rocks into the yard that hit an Aztec building. (R. Exh. 70.) These are serious acts of misconduct, because even though no injury or damage resulted, the activity was in- herently dangerous.179 Other times, Kirkpatrick was seen on the roof with fieldglasses observing the yard. Kirkpatrick engaged in other provocative behavior. For example, at the Jack-in-the-Box Restaurant, he would, on occasion, sit in an adjacent booth to where Zemba and other Aztec managers were seated. Then Kirkpatrick placed a hot cup of coffee on the ledge sepa- rating the two booths and slowly began to push the coffee cup toward Zemba.180 On two separate occasions, Kirkpatrick followed non- strikers home. Driving in his personal car, Kirkpatrick followed Swick to his home during the first week of the strike. Another time, Kirkpatrick was in a van driven by striker Connie Murphy. They followed Zemba, Harrison, and another person for about 7 miles. At times, the van followed closely behind Zemba's car. I find this striker to have engaged in repeated acts of serious misconduct. Based on the totality of the evi- dence, he is not entitled to reinstatement and backpay. an. Glen Klock Neither Zemba nor Harrison knew very much about this striker. Nonstriker Claybough testified he hit her bus with a sign. Picketing in Chula Vista, Klock was once hit by a bus mirror when he could not get out of the way of a speeding bus. He was not seriously injured. Not only is there virtually no misconduct at all, not to mention serious misconduct, I find also no basis for even a good-faith belief that Klock engaged in strike miscon- duct.1 S 1 He is clearly entitled to reinstatement and back- pay. 178 The marbles were about 1 inch in diameter and weighed about 15 ounces. (R Exh 68 ) 179 Alcan Aluminum Corp., 214 NLRB 236, 248 (1974), Ohio Power Co., 216 NLRB 348, 349-350, 354 (1975) 180 Kirkpatrick admitted doing this and when I asked him why, he stated so that he would have more room to read his newspaper When asked why he climbed up on the roof, Kirkpatrick answered that he wished to ask a workman some questions. I found this striker's credibility to be fairly low. 181 Respondent contends that "reports" show that Klock intentionally laid down in front of a bus This claim cannot be credited as no reliable evidence was presented to support it AZTEC BUS LINES 1075 bb. Ray Lindemann This striker repeatedly made comments to Harrison of a sexual nature such as, referring to her sucking Zemba's cock and "be sure and enjoy Zemba's cock."182 Zemba reiterated Harrison's testimony and told of his own expe- riences with Lindemann's remarks. When Zemba re- turned on foot from the restaurant, Lindemann blocked the sidewalk, forcing Zemba to walk out in the street to get around him. At this time, Lindemann yelled, "Zemba you idiot, why didn't you try and go through me." In addition to this, Lindemann blocked buses for brief peri- ods of time and struck buses, causing no damage. To nonstriker Hoffman, Lindemann leaned out of his car at a nearby restaurant and stated, "I'm going to get you, you'll get yours." Then he gave her the finger. Essentially, this case presents the issue whether Linde- mann's repeated sexual remarks to Harrison and Zemba will preclude his reinstatement. 183 This is not to dis- count the other matters described but they are trivial in nature. There is evidence to suggest that Lindemann har- bored a personal grudge against Harrison and was at- tempting to settle old scores.184 In any event, based on a totality of the credited evidence involving this striker, I find he should not be reinstated or receive backpay. cc. Barbara McPheron This striker was 31 years old and sister of another striker named Valerie Mendoza, whose case will be con- sidered below. I find that she committed one of the most serious and dangerous acts of misconduct in the entire strike. About 1 or 2 weeks into the strike, Ingersoll was driving a van to work, with a number of nonstrikers in it, including his wife and daughter, then also working at Aztec. Proceeding along Mission Gorge Road in San Diego, Ingersoll was driving about 25-30 miles per hour with the side window on the driver's side open. Coming up on his left-hand side was a car owned by McPheron, who was riding as a passenger and driven by a former Aztec employee named Ruth Drake, who never testified at the hearing. 1115 As Drake pulled alongside of Inger- soll's van, McPheron threw two eggs at him, hitting him on the side of the face with one and hitting inside of the van with the other. As Ingersoll's car was hit, he almost collided with the car in front of him. He heard laughter from McPheron as Drake turned left a few moments 182 As Harrison was testifying to these matters, Lindemann entered the hearing room I cannot adequately describe the witness' reaction she recoiled with loathing and revulsion , she wept and asked that he be barred from the hearing room The General Counsel objected to this and I denied the witness' request After a recess, the witness returned and, while not completely composed, was able to continue 191 I have decided to discredit the testimony of nonstnker Langley, who testified that Lindemann threw coffee on him In an admission against interest, Franz testified that he did this I have not considered this misconduct against Franz because he also testified that this incident was an accident and I believed him I am also discounting the testimony of nonstnker Reese who described a man on the line who looked like Lin- demann with a nfle in his possession This evidence was not reliable 184 He testified that before Harrison arrived, the Company operated informally as a close working group Then she established complicated procedures which, after her arrival, caused communication problems 185 Similarly, Respondent never called any other witnesses who were passengers in Ingersoll's van later. 186 I find that this act was extremely serious, and frought with potential for injury or even worse.187 Moreover, I find that this act was not impulsive, but a planned attack by McPheron. McPheron was also a member of a group of female pickets who repeatedly chanted sexual slogans at Harri- son as previously indicated. She also told Harrison that ,.you would like a licking better than a fuck," or that you would like me better than Gus, or "Why don't you try me." These kind of remarks were also directed to other female nonstrikers. To Zemba, she engaged in name calling and bending over toward Zemba, telling him to kiss her "ass." Finally, McPheron also engaged in other conduct such as brief blocking, striking of buses with the picket signs, and opening emergency doors of buses. Based on the totality of the evidence regarding her conduct, I find that she is not entitled to reinstate- ment and backpay. dd. Linda McQueen This striker was still another member of the female chanters. She distinguished herself, in Zemba's mind, by exceeding even the low standards of sexual language set by some of the other strikers. I give credence to Zemba's testimony regarding her activities, because prior to the strike, McQueen had suffered an injury that precluded her employment as a busdriver. Rather than have McQueen receive workmen's compensation, Zemba as- signed her a job in the office where she stayed for sever- al weeks, doing dispatching and other office work. Zemba and Harrison knew her well. To Zemba and Harrison, McQueen referred to eating Ellen's "pussy, finger fucking, Ellen is licking Zemba, and was Zemba fucking all the women." Nonstriking female employees Bevers, White, and Foti were asked by McQueen whether Zemba was "fucking" them. McQueen also bent over on occasion, telling Zemba to kiss her "ass." Nonstriker Swick testified that McQueen threw rocks at his car, but no damage was indicated. Similarly, there was no apparent damage as she kicked the car of non- striker Simard. On three or four occasions, she threw eggs at buses, but missed. On several occasions, McQueen threatened Zemba: on the first night of the strike, she stated that she would see that Zemba got killed. In addition, Zemba's family would be killed and so would he. On several occasions, as Zemba walked to the Jack-in- the-Box Restaurant, she followed behind him on foot, calling him a "motherfucker" or yelling threats at him. In evaluating the conduct of this witness, I consider her altercation with nonstriker Dave Smart, who threw 186 McPheron admitted throwing two eggs at Ingersoll's van, but denied hitting him in the face and denied that his vehicle was moving when she threw the eggs I do not believe her version of events for a moment. She alluded in her testimony to an argument between Ingersoll and Drake that occurred a short time before the incident in question' in this argument, Ingersoll allegedly said to Drake, "Shut up , you fucking cunt, I take that back, you don 't even have a cunt " With this as a back- ground, McPheron denied stalking Ingersoll and claimed to have seen his van simply by accident I reject this aspect of her testimony as well 187 Indian Head Co, 239 NLRB 495, 498 (1978) 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her to the ground during an incident on the picket line.188 McQueen provided some additional details on this incident. As Smart was driving through the line, McQueen "kind of kicked" the side of Smart's car. Then, after the incident, she was taken to Kaiser Hospital where she was found to be unhurt and received no treat- ment. As a result of this incident, McQueen claims that she developed paranoia, so that she could not go any place where men were. McQueen canceled her counsel- ing sessions, however, and worked out the problem with a friend and through self-analysis. I do not believe any of this, about the alleged aftereffects of the Smart incident, not only because McQueen's testimony is contrary to common sense, but also because of her misconduct and provocation that I have summarized above. In looking to the totality of the evidence concerning her misconduct, I find that she is not entitled to reinstatement and backpay. ee. Valerie Mendoza In addition to being related to striker McPheron above, this striker was living during the strike with strik- er Roy Stoker, whose case will be considered below. While her case will rise or fall on her own actions, some of her misconduct was in concert with Stoker. For ex- ample, in late August, O'Brien was leaving the yard in her car to go home. In the car was O'Brien's husband and Hokstad and his wife. While driving on Mission Gorge Road, about 9:30 p.m., Stoker and Mendoza jumped from behind a parked car and threw eggs at O'Brien's car. Two eggs hit the windshield. Another in- cident concerned Claybough who was driving a bus in Chula Vista while being followed by a car containing Mendoza and Stoker. At other times, Mendoza acted on her own. For exam- ple, in early January, Mendoza was seen by nonstrikers Comfort and King throwing rocks at employee cars parked inside the lot. She did this for 5-6 minutes and hit three cars, including a new Toyota pickup truck. As a result, she caused several paint chips and dents in the ve- hicles. Hokstad was involved in a major altercation with Stoker that did not include Mendoza. However, on two separate occasions, she threw lighted cigarettes through the window of Hokstad's vehicle as he attempted to drive through the line. One of these times, Hokstad mo- mentarily lost control of his bus. While Hokstad was dis- tracted with the cigarette, Mendoza also reached through the window and smashed a flash cube attach- ment on his camera. To Hancock, Mendoza asked who in the Company she was "fucking." Mendoza also threat- ened to kick the "ass" of Hancock and two other female office employees. As Hoffman's husband drove through the line in a new truck, Mendoza spit on the truck. In December or January, Zemba complained to police that Mendoza was trespassing on Aztec property, and she was arrested. The next day, Mendoza bumped Zemba on the street with her shoulder and said, "Oh, I'm sorry, are you going to have me arrested?" When 188 1 also consider the fact that McQueen is a defendant in a civil suit brought against her by nonstriker named Churning , who did not testify in the instant case The cause of action is based on the alleged blocking of Churning's bus in the middle of the street. Harrison was nearby, Mendoza asked Zemba how he liked to "fuck Ellen." Another time in late August, Men- doza told Zemba, "You are fucking all the women and that's why you are able to keep them instead of having them leave the company." In addition to this, Mendoza participated in the blocking of buses for brief periods, opening schoolbus emergency doors and other such petty acts. In evaluating the evidence against Mendoza, I also consider an incident where she was sprayed in the face with ammonia by nonstriker Neil Simmard. However, this incident does not redeem Mendoza from the conse- quence of her serious repeated acts of misconduct. I find that she is not entitled to reinstatement and backpay. if. Roy Stoker This striker was guilty of perhaps more major violent incidents than any other striker. First, he committed two physical assaults on nonstrikers. A day or so after the in- cident with Brenda Leonard, Hokstad drove up to the picket line with a friend who testified at the hearing and corroborated Hokstad's testimony. Stoker walked over to the car in which Hokstad was sitting and hit him in the face with a half fist or straight arm. This caused a cut and abrasions on Hokstad's face and caused his glass- es to fly into the back seat.189 In another incident, this time in Chula Vista, Swadner and Fortner were sitting in a bus listening to the tape -recording of a speech made by a company official. Stoker came up to the side of the bus and put his hand through, saying, "I'm going to take that fucking tape recorder and jam it up your fucking ass." At this time, Swadner slammed the window on Stoker's hand. Stoker then ran to the front of the bus, entered it, and while Fortner and two passengers watched, he struck Swadner in the jaw and knocked him down. Then Stoker beat on Swadner's head and kicked him in his back and ribs. Stoker then left the area quickly while Swadner called the police.1190 When the matter reached court, Stoker was convicted by a jury of another charge and Swadner's charge was dropped. These two incidents are extremely serious misconduct that would justify fail- ure to reinstate, 191 but there is much more. The other charge of which Stoker was convicted was malicious mischief committed on September 18, when Stoker broke the back window on Claybough's bus with his picket sign. He was sentenced to 1-year probation, $175 fine, and restitution. After his arrest, Stoker said to Claybough, "Why don't you have me arrested again and I'll pay you a personal visit at your home." This threat was taken seriously. During the strike, Claybough's adult daughter and sometimes the daughter's husband rode with Claybough on her bus route for 8 hours a day every day. Prior to this, Stoker had boarded a transit bus in Chula Vista that Claybough was driving and told pas- 199 This misconduct is by itself sufficient for discharge. Kane-Miller Corp., 259 NLRB 1075 (1982). 19° Swadner and Hokstad are both sums; Stoker separately as a result of these incidents 191 Giddings & Lewis, Inc., 240 NLRB 441 (1979), W C McQuaide, 220 NLRB 593, 594 (1975), enfd as to this point 552 F.2d 519 (3d Cir 1977) AZTEC BUS LINES 1077 sengers they did not have good sense to ride with a "fat- assed" lady that could not get behind the steering wheel. It is unnecessary to restate Stoker's misconduct de- scribed with Mendoza above . However, Stoker, by him- self, threw a football at O'Brien's windshield of her bus, but this did no damage. A few minutes after the strike began, Stoker and another person were seen kicking in the right side of a nonstriker's car by a witness named Golding. The car belonged to Golding's father-in-law and the fender was badly damaged. Zemba too had personal experiences with Stoker. Once, he observed Stoker throw a bag of grease against a windshield of a bus. When Zemba walked to the Jack- in-the-Box Restaurant, Stoker followed saying, "You're not going to return; we'll get you." The evidence against Stoker is so overwhelming and so clear and convincing that I hardly need to say that he is not entitled to reinstatement or backpay. gg. Kiernon (Gene) Moore The primary accusation against this striker concerns the alleged placing of black plaster of Paris containers containing copper tubing tire puncture devices in the path of buses in Chula Vista . 192' Both Zemba and Clay- bough testified on this subject : in late August, Zemba testified that he observed Moore , Ondrechen, and Pangi- linan in Chula Vista at Broadway and H Streets. He ob- served the three persons placing the tubing under the tire of a bus. Before he could retrieve it, the three strikers took it away. Claybough testified that in the first month or so of the strike, she saw Moore leaning over a gutter with something in his hand. In the gutter was a piece of copper tubing. Claybough also once asked Moore to stop taking pictures of her and he answered, "I want to see what you look like after you're dead." I cannot credit the testimony of Zemba and Clay- bough on this matter. The latter's testimony seems highly suspect. She never attempted to retrieve the device, merely leaving it in the gutter . Moore's mere proximity to the device does not show he placed it there. Similarly, I am unable to understand how three strikers could be placing the device in the curb as described by Zemba. Unlike Ondrechen and Pangilinan who have substantial other misconduct, Moore has no other serious miscon- duct against him that I am able to credit. Moore did make occasional threats to Zemba at the Twain Avenue location such as "I'll get you for this," and, "You won't live too much longer." Later, Moore made a remark to Zemba that a lynch mob would get him. Moore also engaged in occasional brief blocking of vehicles and hitting of buses with fists and picket signs. 192 Two other serious matters were implicated at hearing, one relied on by Respondent as part of the basis for discharge and one apparently not relied on. The first concerns an alleged assault against Mrs. Barba, wife of a nonstriker. Neither Mr. nor Mrs. Barba testified, and based on the only first-hand evidence presented at hearing, 1-e, from Moore, I find that the evidence of the alleged assault is too tenuous and unreliable to consider. The second matter concerns alleged child molestation charges against Moore. Because this matter was not apparently relied on by Re- spondent, I do not evaluate the evidence, although I note that the evi- dence appears slim and lacking in merit to say the least. In both in- stances, I will disregard the evidence as it is unconvincing. I will base my decision on the other evidence of record. Based on the totality of the credited testimony involving Moore, I conclude that he is entitled to reinstatement and backpay. hh. Joe Mountain Hoffman testified that during the strike she was blocked in by Mountain driving for another company. The incident happened at a local school where both drivers were picking up schoolchildren. Mountain was in front of Hoffman who could not back up because this is prohibited by law in a school zone. I credit Mountain's explanation that Hoffman's estimate of the time of 15 minutes was exaggerated and, in any event, Mountain could not pull up because of the presence of children crossing in front of his bus. Zemba testified that on one occasion he asked Moun- tain to stop challenging nonstrikers to fight and that Mountain responded, "Go to hell." Then he challenged Zemba to a fight. Mountain also referred to Zemba as a "bastard," and said, "We're going to wreck you." No drivers testified who had supposedly been challenged to fight. 19 a Mountain also engaged in the brief blocking of buses and, on one occasion, hit a bus as it entered the yard, but caused no damage. This and all other conduct attributed to Mountain was minor in nature . Based on the totality of the conduct attributed to him, I conclude that he is entitled to reinstatement and backpay. ii. Phillip Mulligan Prior to the strike, Mulligan was involved in a bitter arbitration dispute with Zemba that ultimately went into litigation. Perhaps because Mulligan was a college stu- dent during all or part of the strike , there is little evi- dence of any misconduct. Zemba described two threats made to him by Mulli- gan. On the second or third day of the strike , Mulligan told 7.emba that he would push Zemba underneath a bus at the picket line. In October or November , Mulligan threatened to run Zemba down if he saw Zemba on the street. O'Brien, too, was told by Mulligan many times, "You'll be sorry, we'll get you." In addition to this, Mul- ligan was seen opening schoolbus doors on several occa- sions and briefly blocking vehicles , including using the picket sign to block Zemba's view. Once he followed Zemba to a nearby restaurant on foot. Based on the totality of the evidence against Mulligan, I conclude he is entitled to reinstatement and backpay. J. Connie Murphy Beginning shortly after the strike began and continuing thereafter, this striker engaged in extensive and signifi- cant misconduct. Moreover, as will be demonstrated below, she was one of the least credible witnesses to be presented by either side. When the strike began, some of the buses were still out. One of these late-arriving buses was driven by 198 Mountain did describe an incident with Hokstad whom he chal- lenged to a fight. This was after Hokstad blew a loud airhorn at Moun- tain and other pickets who had not had a full opportunity to clear a path for Hokstad's bus 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cheryl Anderson, who never testified at the hearing. She left her bus on Twain Street in such a way as to obstruct traffic, especially due to the darkness. Then someone dis- abled the bus by pressing a certain switch that precluded the bus from starting in the normal way. When a non- striker went out to the street to retrieve the bus, she could not start it and a mechanic was summoned. How- ever, the mechanic would not start the bus because he was required to go to the rear of the bus, lift the cover to the engine compartment, and reset the switch. He could not do this because Murphy had driven her van flush up against the rear of the bus so the compartment door could not be opened. When Murphy could not be found to move her van, the police were called. Only when the police threatened to tow the van, did she emerge from the crowd of strikers and drive her van away. As she backed away, she almost struck Zemba, who was standing nearby . The incident lasted in excess of 30 minutes in the first hours of the strike.194 On August 26, Murphy threw eggs at a bus driven by O'Brien as it left the yard. The eggs struck the wind- shield and side of the bus and caused O'Brien's vision to be obstructed. 19 5 Along with striker Kirkpatrick, Murphy, driving her van, followed Zemba, Harrison, and another person in a long chase . The next day Murphy said to Zemba, "We didn't get you that time, we'll get you next time."196 Harrison was a continual victim of Murphy's miscon- duct. Murphy made harassing calls to Harrison at home, saying that Harrison was "dead meat," and that "we are going to get you." The next day, Murphy asked her how she liked the phone calls. Murphy was also the leader of the female strikers who repeatedly chanted sexual slo- gans toward Harrison . These women referred to Harri- son as "Connie's meat." Murphy shouted, "I'll show you how to make love, you're mine." References were made to Harrison's "cunt" and her "big ass." Murphy asked, "Are you enjoying Zemba's cock." Finally, Murphy also blocked vehicles, gave Zemba the finger, and hit buses as they came through the line. 19 z Based on a totality of the evidence regarding Murphy, I find she is not entitled to reinstatement or backpay. 194 In her affidavit to the Board agent, Murphy stated she had parked her van at all tunes to allow access to the rear compartment In her testi- mony at hearing, she admitted having to back up before the mechanic could reset the switch. 195 I disregard O'Bnen's additional testimony about the alleged chil- dren of Murphy also throwing eggs. There is inadequate proof that the children were Murphy's or that they were acting under her direction and control. 195 At hearing, Murphy admitted the incident following Zemba and the others for about 2 miles and stated she did it out of curiosity In her statement to the Board agent, Murphy refused to answer any questions about this incident. 197 In her affidavit to the Board agent , Murphy denied throwing eggs, but at the hearing, she admitted throwing a single egg at O'Bnen's bus. Murphy also denied in her statement opening bus emergency doors, but at hearing admitted this activity on one occasion. Her rationale stated at hearing for pulling her van up flush behind the bus was to prevent acci- dents and not to obstruct movement of the bus . This testimony is totally incredible kk. Brenda Myers This striker was seen by Schultz and Swick with a can opener-type instrument scratching it along the side of a bus, causing serious damage. As Hokstad was driving a bus into the yard, Myers threw eggs at and hit his front window, thereby obstructing his vision . 198 On another occasion, Swick was a passenger in a car leaving the yard, when Myers threw a rock at his head. He blocked the rock with his arm and the rock hit him there. This incident happened a few weeks after Swick had caused the arrest of Myers for scratching the side of a bus with a can opener. On that night , Swick was afraid to drive his car through the picket line due to the threats of the remaining pickets so he was forced to lay down in the back seat of a police car in order to get through the line. As Ybarra was going through the line in a vehicle with her three daughters, ages 16 and 12-year-old twins, Myers shouted, "You're dead, you're through." Myers was another member of a female group of pick- ets who constantly chanted sexual slogans directed to Harrison.199 To Schultz, Myers said, "You ought to try women sometime, you wouldn't take it out on us then." A combination of threats and sexual comments were di- rected to the female office staff. To Cheryl Foti, Myers asked, "Is Zemba getting into you." Myers also said she would not make it through the line. To Bevers, Myers threatened to whip her "ass." Myers told Zemba that he and his family would be killed. As Zemba walked to the restaurant, Myers followed him by foot saying, "Look who's behind you, why are you walking so fast." Myers told Harrison that she would get her "ass." In evaluating the totality of Myers' conduct, I am mindful of the threats made to her by nonstriker Reese, to beat the "shit" out of her. I am also mindful that Swadner sprayed her with ammonia although in a later trial for this conduct, Swadner was found not guilty. Fi- nally, I note that Reese brandished a crowbar in her presence. Despite these incidents, which I find Myers provoked in whole or in part , I must conclude that her conduct is such that she is not entitled to reinstatement or to backpay. 11. Ron Norman This witness did not testify at hearing; however, an adverse inference is not drawn because the Union intro- duced evidence that his absence was due to a medical condition.zoo I similarly do not consider as evidence the fact that Norman is a defendant in a court suit brought by nonstriker Churning for alleged extended blocking of Churning's bus. The latter never testified and there is no other credible evidence on the point. Schultz testified that once at a bus checkpoint, Norman said he ought to leave when buses did because there would not be anyone there to protect him. Norman 198 While denying this incident, Myers did admit to throwing eggs at vehicles four times and on two occasions, bringing her own eggs to the picket line, a dozen each time. In her affidavit to the Board agent, she denied throwing eggs at all. 199 Myers admitted saying to Harrison, "Did you get a raise by getting a rise." 200 C.P Exh. 28. AZTEC BUS LINES 1079 threatened Zemba's life and promised to get him. Norman also engaged in brief blocking , opening of emer- gency doors, and striking of buses as they entered or exited the yard. No damage resulted. Based on'the totality of the evidence against Norman, I conclude he is entitled to reinstatement and to backpay as none of his acts were serious misconduct.201 mm. Steve Ondrechen This striker used abusive language toward Zemba, calling him a "cocksucker" and saying "fuck you" or "mother-fucker." On one occasion, these epithets were accompanied by action . Zemba was in his car attempting to leave the yard. Ondrechen took the sharpened end of his picket stick and poked it through the open car window, about 3-12 inches from Zemba's face. This con- tinued for 15-20 seconds while Ondrechen yelled, "You Jew-bastard, I'm going to kill you."202 Although Zemba was not Jewish, Ondrechen frequently referred to him as "mother-fucking Jew," a "Jew bastard," or "dirty Jew." To Harrison, Ondrechen asked, "How do you like Zemba's cock." He also called her a "fucking whore." Claybough was told by Ondrechen that her life was not worth a plugged nickel and that she better watch her step. Based on the totality of the evidence against this strik- er, I must conclude that he is not entitled to reinstate- ment and backpay.203 nn. Marian "Susie" Osborne This striker committed various acts of misconduct that are not sufficient to preclude reinstatement. Nonstriker Huffman was told by Osborne that she would get her. Claybough was told by Osborne that she knew someone who would get her. Osborne also directed threats to Zemba such as, "Be careful where you go, you don't have too long to live." These and similar types of re- marks were made to Zemba as Osborne and another striker followed him to the Jack-in-the-Box Restaurant. In addition to these threats, Osborne engaged in name calling and sexual innuendoes . However, it is significant that Harrison, the usual target of these comments, was not sure who Osborne was or why she was not reinstat- ed. Zemba, however, did recall Osborne. He was asked, "How do you like that whore," "How was Ellen to screw." Other female office employees were called "whore," and asked who in the office they were sleeping with. Osborne called Ellen Hoffman, a nonstriker, a 201 I leave to compliance the question of whether Norman is physical- ly capable of performing his work and, if not, the determining of when he became disabled. 202 Although either Harrison or Schultz was with Zemba at the time, neither testified to this incident, even though Zemba said at the tune to those in the car to be sure and remember this. On Br 136 fn. 80 the Gen- eral Counsel notes this fact I credit Zemba's testimony over Ondrechen's denial because even though I cannot account for the lack of corroborat- mg testimony, it is not likely that anyone would fabricate an incident like this Moreover, Zemba testified on this point with a credibility that made me believe lum 203 In reaching this conclusion, I do not rely on Zemba's testimony that Ondrechen was one of three placing sharpened copper tubing near a bus tire in Chula Vista "bitch" and asked her if she was still walking the street at night to make more money. In addition to the usual brief blocking, Osborne blocked a bus for up to 20 minutes, according to Swick. However, this extended blocking was an isolated act. The threats were not accompanied by any overt act. After the single incident with Claybough referred to above, she was arrested , but never formally charged. The name-calling and sexual insults seem to me of a far lesser provocation than referred to with others such as Jellison and McQueen. Based on the totality of the evi- dence against Osborne, I fmd that she is entitled to rein- statement and backpay. oo. Agnes Pangilinan This striker was seen by Zemba, Schultz, Swick, and Harrison throwing nails on the driveway leading to the Aztec yard. (R. Exh. 60.)204 Schultz described the nails as 1-1/2 inches long. No tires were damaged because company officials were able to pick up the nails shortly after Pangilinan threw them. 205 In addition to this rather convincing evidence of serious misconduct, there is still more evidence of other serious transgressions. About 2 months into the strike, Ellen Hoffman saw Pangilinan place a round plaster of Paris device with a spike stick- ing out of it in the Aztec driveway just before a bus en- tered. The bus ran over the object but the tire was not punctured. As described above, Zemba also observed this striker and two others in Chula Vista placing a simi- lar object in a curb next to the tire of an Aztec bus. Pangilinan also threatened Hoffman by forcing her picket stick into the window of a bus 3 inches from Hoffman's face, almost hitting the witness, and saying she hoped that Hoffman killed herself. Comfort de- scribed this striker as opening emergency doors on two occasions and Hewin described a threat to her as she was driving her bus from the Aztec yard. Pangilinan said, "You're going to die." Pangilinan's denial of this misconduct was unconvinc- ing. Unlike many of the other female strikers , she was small, only 5 feet 1 inch tall , and her speech was distinc- tive as she was born in Guam. There was no mistaking Pangilinan and the evidence against her was overwhelm- ing. Based on the totality of the evidence against her, I find that she is not entitled to reinstatement and backpay. pp. Frank Patton A picket captain until October 13,206 when he went into the hospital, Patton was accused of sundry acts of misconduct. In September, Zemba had Patton arrested for trespass. Patton told Schultz well into the strike that the trouble on the line would change from the night to the mornings. This statement seemed more like the con- 204 Indeed, Zemba observed her committing these acts a total of three times 205 The Board has consistently held that the scattering of nails by a striking employee at the gates of a struck facility constitutes misconduct sufficient to warrant discharge See Giddings & Lewis, Inc., 240 NLRB 441 (1979); Moore Business Forms, 224 NLRB 393, 398 (1976), enfd. in part 574 F.2d 835 (5th Cir. 1978) 206 Again, I do not consider Patton 's status as an aggravating factor. 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD veying of information and not like a threat, particularly because Patton was not predicting anything in particular either from the pickets or from him, personally. Dugent testified that Patton said he would get him. When Dugent attempted to report this remark to the police, the police would not accept the complaint. Ac- cording to Hokstad, Patton said to him early in the strike, "We're going to put you in the hospital-your teeth will be wired shut for months." Hokstad testified to another alleged conversation with Patton, this at Disney- land, prior to the strike. Patton allegedly said that Hok- stad might make it across the picket line once, but he would never make it through twice. Patton denied the substance of these two conversations with Hokstad and I credit these denials and find the re- marks were never made. At the hearing, Patton im- pressed me as a particularly calm and mature witness, not given to picket line rhetoric. He stands accused of relatively little misconduct which corroborates my im- pression at the hearing. Hokstad, on the other hand, was on occasion, a needlessly provocative antiunion employ- ee, himself not free from misconduct. I simply do not be- lieve this aspect of his testimony. Clearly, without Hok- stad's testimony, there is no basis at all not to reinstate Patton. Even were I to credit Hokstad, I would still rec- ommend that Patton be reinstated under Board law as the threats were not accompanied by any overt action and I would rely on Respondent's unfair labor practices and condonation, if this were a close case. It is not, and Patton should be reinstated with backpay. qq. Linda Peckron Peckron was one of the most vicious and violent strik- ers and was guilty of extensive serious misconduct. A major problem is where to begin. Kathy Hewin provided a telling episode as she drove up to the line in her car after work. It was a warm day and her window was down. Peckron approached her car and spit in her face.807 This act was not an isolated act of impulsive misconduct. Witness what occurred next. As Hewin wiped the spit from her face, a cup holder from her car flew out of the window. She opened the door to retrieve it, putting her leg to the ground. Then Peckron, who stood 5 feet 8 inches tall and weighed between 250 and 300 pounds, began pushing against the door with Hewin's leg caught between the door and the frame of the car. Finally after several moments, Peckron released the pressure and allowed Hewin to get her leg back in the car and leave. Hewin's leg was bruised but she was not seriously injured.208 Peckron was also guilty of extensive egg throwing. Schultz saw her throw an egg inside a bus as it pulled through the line. A bus driven by Comfort was hit two times with eggs thrown by Peckron. Peckron also hit the windsheild of a bus driven by Cohee with an egg. A 207 I have indicated my view earlier that spitting directly in a person's face is a serious provocative act that frequently generates a violent re- sponse Cf Sea View Industries, 127 NLRB 1402, 1430-1431, 1437 (1960) 208 Two of Peckron's fellow strikers, Balding and Tom, and other wit- nesses for the Company, e g , Ybarra and Swick, all testified to this inci- dent Not surprisingly, I do not believe Peckron's denials of this incident at all. nonstriker named Estrada testified that Peckron threw an egg at his car after he had finished work. About 9 p.m. one night, Peckron and Fowler threw eggs at Harrison's car, hitting in on its trunk. Hewin, too, described how Peckron threw an egg and hit the windshield of her car as she went through the line. Peckron testified that she brought eggs to the line 5-10 times, about one dozen each time. Sometimes she also would pitch in to buy the eggs. Then the eggs would be kept in the car closest to the line. In addition to throwing eggs, Peckron threw a rock at the back of Hokstad's car as he drove through the line. No damage was done to the window, however. Peckron also made the usual threats to get Zemba and his family and to do Ellen in. There was some sexual in- nuendo, but not explicit. For example, on several occa- sions, she asked Harrison if Zemba was good in bed. She engaged in extensive blocking of vehicles and opening of emergency doors. Perhaps the most astounding circumstance of Pecker- on's case, apart from the misconduct committed by her, is the fact that in early December, Peckron was named a picket captain. She replaced Fowler at this time and con- tinued in this position for about 2 months. When named a picket captain, her proclivity for violent behavior must have been known to the Union. In any event, in evaluat- ing her conduct, I have not considered her status as a picket captain in making my recommendation. Based on the totality of the evidence against her, I find that Peckron is not entitled to reinstatement or to back- pay 209 rr. Tom Reynolds About Labor Day, Reynolds became a relief picket captain replacing Patton on one of the shifts. Again, I do not consider this fact. During the time on the picket line, Reynolds engaged in a variety of misconduct. He fol- lowed a bus driven by Hoffman to a golf course where she picked up pasengers. Then he left. Along with Kipple, Reynolds beat on Ingersoll's car as he drove through the line. This caused some minor dents in the fender. Once, as Cohee was driving through the line, Reynolds spit on a window of his van. 209 Peckron testified to some instances of misconduct by nonstrikers, one of whom was a person named Dugent , who threatened pickets with a crowbar once Witness this amazing testimony from Peckron, herself, which I credit. Q. [Mr Geerdes] Had there been any contact between Mr. Dugent and the pickets prior to him arriving on the picket line with his crowbar? A I'm sure when he came in that night that people were hollering and yelling at him. He was one that couldn 't take that a whole lot He got real fired up real quick Q Do you remember specifically what occurred when he came in that night A I don't remember specifically that night exactly what had been said, but Dugent was one that we liked to catch, because he did react He reacted real violently, really funny. You know these were pretty hilarious to watch. [R Tr 7895 ] The witness went on to say that it was basically the same type of thing with nonstnker Reese. (R Tr 7896) Thus, Peckron here is relating the scheme of the strikers to find nonstrikers with the least self-control and provoke them into violence Because of this strategy of the strikers, I have not given great weight to the conduct of the nonstrikers AZTEC BUS LINES Zemba's experience with Reynolds regarding miscon- duct consisted of an isolated incident in December or January 1981, where Reynolds deliberately bumped Zemba as the latter walked near the line. Zemba was not injured at all. Reynolds also used a hand -held spotlight to shine into the Aztec yard. z 10 According to Smeltzer, a nonstriker, he saw Reynolds throw eggs on two occasions . Reynolds denied this, but admitted delivering eggs to the picket line on two occa- sions, two dozen each time . The eggs were brought for people to throw. When he saw people with eggs, he made sure that he looked elsewhere. I credit Reynolds' denial that he never threw eggs himself . In Smeltzer's testimony he was less than certain on one of the two oc- casions cited. However, Reynolds' candid testimony re- garding the bringing of the eggs to the line and aiding and abetting this activity makes it unlikely that he would fabricate denials of the throwing itself. I believe his testi- mony on this point. Of course this leaves the bumping incident that I find was a minor and isolated incident. I have considered Reynolds' activities with the eggs and the other matters referred to above. I have not yet mentioned several in- stances of blocking for brief periods . Zemba seems to consider Reynolds a different breed from the repeated violence demonstrated by some other strikers. Zemba oc- casionally engaged Reynolds in conversation at the Jack- in-the-Box Restaurant. Moreover, the minor damage to Ingersoll's car and the spitting incident do not justify dis- charge. Based on a totality of the circumstances regard- ing Reynolds, I conclude that he is entitled to reinstate- ment and backpay. ss. Julia Richard and Susan Silvestri Like Baker and Lilly, these two strikers were so often together, it makes good sense to consider them together. Nonstriker Hoffman testified that both women called her "cocksucker" and blocked her from entering the Aztec yard. On one occasion, Richard swung her sign like a baseball bat and hit Hoffman 's headlight, but did not damage it. Silverstri threw a rock at a bus driven by Hoffman but caused no damage. A female nonstriker named Bevers testified that both strikers said they knew where they could fmd her. Both also threatened to kick Hancock's "ass." In September, Silvestri hit the door of a truck driven by Reese and, for this act, she was cited by the police . The driver's door was dented. Harrison described Richard and Silvestri fol- lowing her to the restaurant, one on each side, and one said, "Oh, we don't want her anyway . She's Connie's [Murphy's] meat." On another occasion, the two women followed her, wondering out loud, "I wonder what she would do. Do you think we should try her." Once Sil- vestri said to Harrison, "You would like a licking better than a fuck." Although Zemba could not place Richard, he did recall Silvestri following him on foot about 12 times. She said, "Ellen is dead meat." Silvestri also threatened to 210 I do not credit the testimony of Zemba that Reynolds was using a radio device to jam communications between the buses and Aztec dis- patcher. I find no credible factual basis for Zemba's conclusion. 1081 kill Zemba and his family on several occasions. Once Sil- vestri said to Zemba, "Hey, mother-fucker, where's your lover at. You won't be seeing her, because we've gotten rid of her." Silvestri also bent over and told Zemba to kiss her "ass" about 12 separate occasions. Richard and Silvestri were roommates during the time of the strike. They usually were on the line at the same time, because only Richard had a car. Both women en- gaged in repeated blocking and striking of vehicles as they came through the line. Despite the similarity in many respects of their con- duct, it is clear that Silvestri was engaged in the more egregious conduct. As to Richard, I find without ques- tion she is entitled to reinstatement and backpay. It is a much closer question regarding Silvestri. However, on balance, I find that her threats were not accompanied by overt actions and the repeated sexual statements were on a more innocuous scale, as compared to statements made by other strikers. For this reason, I recommend that Sil- vestri be reinstated and awarded backpay as well. tt. Hubert Robinson In September, this striker threatened to kick Zemba's "ass" as the latter drove through the picket line. Robin- son called Comfort a "fucker," or "mixed-breed mother- fucker" on several occasions. In October, Robinson was sued with other strikers by nonstriker Churning, who at the time of hearing was no longer working for Respondent. Apparently outraged by what he considered a baseless lawsuit, Robinson made several remarks to Zemba suggesting Zemba was respon- sible for the lawsuit. For example, shortly after he re- ceived service of process, Robinson said to Zemba, as he drove through the line, "I thought you were my friend, now I'm being accused of this. What goes around comes around." Robinson went on to accuse Zemba of having been kicked out of Philadelphia, a reference Zemba could not explain. A few days later Zemba was walking past the picket line and Robinson again alluded to the Churning suit by saying that he was not going to forget about it and that Zemba should remember what Zemba said before. On another occasion, Robinson invited Zemba to exit his car so Robinson could "whip his ass." A nonstriker named Estrada testified that Robinson threw eggs at his car. I cannot credit this testimony, however. Robinson denied the allegation and I believe his testimony. Moreover, the level of Robinson's activi- ties on the line does not corroborate Estrada's testimony. That is, Robinson engaged in few incidents, all which were minor. His statement, to Zemba, "what goes around," etc., is too ambiguous to be characterized as a threat. The threat to fight Zemba is nothing more than a trivial rough incident. Robinson was 50 years old and before coming to San Diego had retired from the fire department in an eastern city. I found him to be mature and mostly truthful in his testimony, but with a slight tendency to get excited about events on the picket line. In reviewing the totality of the evidence regarding his case, I find that he is enti- tled to reinstatement and backpay. 1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD uu. Karen Sloane Neither Zemba nor Harrison knew Sloan nor why she was not reinstated.211 After reviewing the evidence per- taining to Sloane, I am as much in the dark as anyone. Other than Sloane herself, the only witness to give sub- stantive testimony regarding Sloane was Swick. His testi- mony on this striker was not impressive. He testified that Sloane blocked buses, engaged in verbal harassment of drivers (no details were given), and hit a bus with her picket sign on two occasions. I cannot credit this testi- mony. Sloan testified and denied even this extremely slight misconduct. She also testified that she was on the picket line only the first 3 weeks. Thereafter, she stopped picketing because, as a single parent of two children, she was unable to afford a babysitter. I find here that Zemba could not have held an honest belief that this striker engaged in serious misconduct. Ac- cordingly, she is clearly entitled to reinstatement and backpay. vv. Michael Smith There is at least a scintilla of evidence regarding this striker to support the decision not to reinstate. When Smith returned from an assignment, the strike had al- ready started. Smith told Zemba "to shove the bus up his ass" and then he gave Zemba the finger. Smith also told Zemba to go to hell. In addition to these remarks, Smith hit a bus with a sign on two occasions, and blocked buses and Zemba's car for brief periods on several more occasions. Based on the totality of the evidence regarding this witness, I find that he is entitled to reinstatement and backpay.212 ww. George Sprague When the strike started, Sprague was on disability status where he remained until November. Notwithstand- ing his status, he also joined the strike from the begin- ning. Sprague called nonstriker Golding names such as "scab" and "jerk" and stated that he would get Golding. Both Swick and Zemba observed Sprague blocking buses and other vehicles on several occasions for brief periods of time. Both witnesses also saw Sprague hitting buses with picket signs. No damage was indicated. Respondent describes two incidents (Br. 323-324) that it characterizes as provoked by Sprague. The first in- volving an altercation with a nonstriker named Jacobson was not provoked by Sprague, but rather is an example of unpunished misconduct by a nonstriker. The second incident involves Sprague, on a motorcycle, following a van of nonstrikers. There is no evidence that Zemba 211 Even counsel for Respondent seems confused He briefs Sloane's case under the heading , "Evidence as to strikers who abandoned interest in employment at Aztec " (Br IV, 447) 212 According to representations made by the lawyers at hearing, Smith was reinstated in early January 1982, worked for only a few days, then quit, stating he wanted another job I leave to compliance the venfi- cation of these statements and of course the computation of backpay due and owing to Smith The backpay may have been tolled in mid -January 1982, if Smith's departure was uncoerced even knew of this incident much less relied on it as a basis for not reinstating Sprague. In any event, it is not serious enough by itself nor when coupled with all other misconduct to deny Sprague reinstatement. I find that he is entitled to reinstatement and to backpay. xx. Brad Steckmesser Zemba stated that Steckmesser was blocking vehicles generally. Harrison described an incident that occurred in September where Steckmesser swung a picket sign at her, missed, and stated, "We might not always miss." Steckmesser spit on a car driven through the line by Swadner and twisted the side mirror of his car. Swinging the sign at Harrison, even for a deliberate miss, and spitting on Swadner's car are serious matters, but not serious enough to deny Steckmesser reinstate- ment. He is distinguished because his unusual sounding name is mentioned so few times in this long case, espe- cially when compared to some other strikers. I have con- sidered the totality of the evidence relating to Steck- messer and recommend that he be reinstated and award- ed backpay. yy. Hernando Suanico This striker did not testify at the hearing. Neither Zemba nor Harrison had firsthand knowledge nor even secondhand knowledge of this striker's activities. Non- striker Claybough testified that Suanico threatened her life in an incident in Chula Vista also involving Stoker and Ondrechen. Unlike the latter two strikers about whom there is substantial evidence of misconduct, this is the only matter affecting Suanico. Accordingly, I do not credit Claybough on this point. Moreover, even if I were to credit her, this single, impulsive incident would not be sufficient to deny reinstatement and backpay to Suanico. I find he is entitled to reinstatement and backpay. zz. Judy Tolwitzke In mid-September Zemba met Tolwitzke at the office of San Diego City Schools where the following ex- change occurred: Tolwitzke said, "Hi, Gus, we're going to do you in." Zemba responded, "Are you threatening me," and she replied, "We'll take care of you." On two occasions, Zemba heard her tell nonstriking drivers, "We'll get you. You won't be here tomorrow." This striker also engaged in brief blocking of buses on about six occasions. The threats, if they can be so construed, referred to above, were not accompanied by any overt act and im- press me as no more than pure verbiage. The first ex- change between Zemba and Tolwitzke is not made more serious because it occurred away from the picket line. Based on the totality of the evidence concerning this strike, I find that Tolwitzke is entitled to reinstatement and backpay. aaa. Steve Tom On October 6, Tom told Hokstad that he was a "dead man" and that Tom was going to get him and his car. This was after an altercation with other strikers that did AZTEC BUS LINES not directly involve Tom . According to Zemba, Swick, and Comfort, Tom engaged in the blocking of buses and other vehicles for brief periods of time. Zemba also saw Tom striking buses with his picket sign a few times. Har- rison saw Tom present only in a group of pickets who were committing acts of misconduct such as throwing eggs. She also testified that on October 2, the police were attempting to clear pickets away from the Aztec yard, and Tom argued with the police and resisted them. There was no evidence he was arrested or charged with a crime. Contrary to his affidavit to a Board agent in which he had denied throwing eggs, Tom testified at hearing that he threw two eggs at buses . One of these missed its target and the other hit the back of the bus as it was en- tering the yard. I have earlier indicated my view that throwing eggs at moving buses is serious misconduct, especially where the windshield is hit . I have also stated the Board does not share that view particularly where, as here, there is no other serious misconduct. Because I am bound by Board decisions, I recommend that Tom be reinstated with backpay. bbb. Lester Wallace? 1 a Shortly after the strike began, Wallace was attempting to let the air out of the tires on the bus left on the street by Anderson (this is the bus immobilized by Murphy's van). He was stopped by Schultz. Later that evening, after the incident with Brenda Leonard, Wallace called Hokstad on the telephone at the Aztec yard and stated, "You're a dead man. I'm over at your house right now and I'm going to rape and kill your wife." On receiving this call, Hokstad immediately called the police and asked them to check his home. Given conditions on the picket line at that time, I regard this telephone call as ex- tremely serious misconduct.214 When Hokstad left the yard about 9 p.m., he called his brother and asked him to pick him up at the back fence, which Hokstad climbed over. He was afraid to cross the picket line in his car. Swick testified that Wallace came to his home on one occasion within the first 3 weeks of the strike. When Swick opened the front door and saw who it was, he im- mediately slammed the door. Wallace drove by the home on one other occasion and called Bill Jones, Swick's roommate, a "mother-fucker" and "worthless son-of-a- bitch." Swick also described several incidents of block- ing buses and hitting buses with picket signs as they drove through the line. On several occasions , Wallace threatened to kick his "ass." Wallace directed several threats to Zemba. One night, Zemba was leaving work for the day in his car. Wallace a 1 a I have disregarded and will not credit the testimony of nonstriker Whitehead regarding the alleged actions of Wallace. Not only did Wal- lace deny the act in question, but Whitehead's testimony as to the identi- ty of the culprit was not convincing. (R. Tr. 1280 ) 214 Thus, George had physically assaulted Zemba; Leonard and Shel- ton had approached Zeniba in a threatening manner . The other pickets were virtually berserk with hatred and anger toward Hokstad and Zemba In sum, these surrounding circumstances were tantamount to an overt act that gave the threat currency . Although I find that it would warrant discharge by itself, the only issue ,here is whether the totality of the misconduct warrants discharge. 1083 said, "If you are going home, forget it, they're dead." The substance of this threat was repeated three times. Other times Wallace said to Zemba , "You're a dead man; we know where you live and we are going to get your family." Wallace also called Zemba a "mother-fucker" on several occasions. Ingersoll described Wallace's habit of blocking buses by standing directly in front of them. Based on the totality of the evidence concerning this striker, I find that he is not entitled to reinstatement and backpay. ccc. Vasco W. "Bill" Walter Jr. As Zemba drove through the line, Walter usually handed him a passage from the Bible , as he noted that Zemba would be killed and was going to hell. In fact, Walter was a Sunday school teacher and was affiliated with a religious organization. Although Walter described himself as completely nonviolent, I believe Zemba when he testified to Walter blocking his car, and about four or five times rocking it as Zemba attempted to drive through the line. Walter was the only striker, male or female, who wore a brief bathing suit on the picket line. Given his size, there was no mistaking him .215 Walter called Dugent a "son-of-a-bitch" and threw four or five eggs at a bus entering the yard. On two other occasions, Walter threw eggs at buses entering the yard as well. O'Brien described several incidents of blocking buses and Ybarra observed Walter opening schoolbus emergen- cy doors.21 a In evaluating the conduct of this witness, I note some conflict between his asserted beliefs and his behavior at the picket line. In addition, Walter was less than com- pletely candid in his testimony.217 And yet, Walter not only refused at hearing to repeat the obscenities he heard on the picket line for the hearing , he also complained to Corona about this activity and threatened to quit the strike if the obscentities did not stop .218 Based on the to- tality of evidence regarding this striker, I conclude that he is entitled to reinstatement and backpay. ddd. Stanley Wright At the time of the hearing this witness was 65 years of age.21 a The evidence of misconduct is slight to say the 215 The witness stood 5 feet 10 inches and weighed 242 pounds. He wore the bathing suit because of the heat. 216 I do not credit Harrison's testimony that Walter was telling Aztec customers that the yard was closed and then dircting them to competi- tors. He denied doing this and there is no credible evidence to support Harrison, who was merely repeating reports heard from others. 217 For example, after denying that he threw eggs, Walter admitted having eggs in his possession on the picket line . But he said that his wife used them for cooking. Given the context of this strike , his testimony is incredible. ale Moreover, as Walter was asked at the hearing about various ob- scene expressions used during the strike, he winced as he heard the words. 219 Wright supposedly suffers from impaired hearing. Although he does have a hearing aid, he does not usually wear it. During his testimo- ny, he was questioned by the lawyers in their normal tone of voice. Wright had no trouble hearing and responding. All this came up as the Continued 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD least. First, he was present when Reynolds bumped into Zemba. His presence at the time is of no consequence whatsoever and I decline to even afford it minimal weight.220 Moreover, Reynolds himself was ordered re- instated. Wright also suggested to Zemba that the paint shed would burn easily. Wright also stated, "You better be careful, that could blow up or catch fire and destroy all the buses." Assuming without finding that these state- ments are threats, they clearly are not serious threats under Board law. Moreover, Zemba had relocated all combustible materials sometime after the strike started. Accordingly, Wright's experience in the paint shop was of no great moment in putting his statements in context. Finally, Zemba testified there was one other matter re- lating to Wright, but he could not recall it. Naturally, I disregard entirely this other incident. Based on the totality of the evidence regarding this striker, I conclude he is entitled to reinstatement and backpay.221 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act and was at all material times, and continues to be, the exclusive representative of Respondent's employees in the appropriate unit set forth below for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 3. All employees in the following classifications- coach operators, maintenance, and student drivers-con- stitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By unilaterally changing employees' health and ac- cident insurance plan, without timely notice to the Union and without affording the Union an opportunity to bar- gain, Respondent violated Section 8(a)(5) of the Act. 5. By failing and refusing to execute the contract on the Union's request, after agreement had been reached on all substantive proposals, Respondent violate Section 8(a)(5) of the Act. Respondent considered taking Wright back during the hearing First, the Company took the position that he could come back only if he wore a hearing aid at work doing his usual job as a body paint man. Wright's job calls for little or no dnving of buses When the Company's initial position proved to be a problem, they further modified their position and agreed to take Wright back even without his hearing aid. Because I will recom- mend that Wright be reinstated with backpay, I will leave to compliance the task of sorting out Wright's backpay and just when it was tolled, if at all. 220 Respondent seems to concede that this incident was part of the reason for not reinstating Wright. (Br. 422-423.) 221 Much of Wright's testimony was taken up not with explaining or denying the misconduct charges against him-that part of his testimony was short, given to evidence presented by Respondent . Rather, Wright described his experience with the Company's doctors attempting to get medical approval to return to work. As part of the recommended Remedy in this case, Wright and other strikers who were reinstated will have to be made whole for their out-of-pocket expenses incurred in com- plying with Respondent's unlawful conditions before returning to work Further details of this "Make Whole" remedy will follow below. 6. By failing and refusing since March 26, 1981, to bar- gain in good faith with the Union, more specifically, by engaging in surface bargaining during the period indicat- ed, Respondent has violated Section 8(a)(5) of the Act. 7. Respondent, through Zemba in paragraphs (a) through (c) below, and through Ybarra in paragraph (d), violated Section 8(a)(1) of the Act: (a) By coercing employees in the selection of their col- lective-bargaining representative. (b) By making verbal comments to employees dispar- aging to certain of the union leaders. (c) By making to employees erroneous statements of labor law designed to coerce employees in the course of their protected activities. (d) By making statements that effectively disparaged the Union and coerced employees in the selection of their collective-bargaining representative. 8. By failing and refusing since April 4, 1981, to rein- state all strikers listed on "Appendix A" to this opinion unconditionally, and by requiring these same returning strikers as a condition of reinstatement to complete em- ployment applications, to undergo and pass medical ex- aminations as determined solely by Respondent or its physician agents; to undergo and pass open book tests and dnving tests as determined solely by Respondent or its agents; and by requiring employees to provide Re- spondent with copies of the employees' State Depart- ment of Motor Vehicle (DMV) driving records, Re- spondent has violated Section 8(a)(1) and (3) of the Act. In addition, by unilaterally implementing the conditions listed above as terms and conditions of employment, Re- spondent has, since October or November, violated Sec- tion 8(a)(5) of the Act. 9. By failing and refusing, since April 4, 1981, to rein- state the strikers listed below who contrary to Respond- ent's claim never resigned or otherwise abandoned their employment, Respondent violated Section 8(a)(1) and (5) of the Act: Dana Banning, Darryl Conyer, Thomas Doty, Suhley Ozgundez, Abraham Planje, Cheryl Reid, and Jean Umphreys. 10. By failing and refusing since April 4, 1981, to rein- state the strikers listed in "Appendix B" to this opinion, Respondent has violated Section 8(a)(1) and (3) of the Act. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 12. Respondent did not violate the Act by refusing to reinstate the following: Norman Amador Robert Baker Phil Burkhart Leslie Carr Michael Doering Bertram Dredden Patricia Fowler Angel Huezo Colleen Jellison John Kipple Michael Kirkpatrick Wallace Leonard Raymond Lindemann Gerald Marks Barbara McPheron Linda McQueen Valerie Mendoza Connie Murphy Brenda Myers Stephen Ondrechen Agnes Pangilinan Linda Peckron Alan Shelton Roy Stoker AZTEC BUS LINES Donald Lilly Lester Wallace 3. Other than as reflected above, Respondent has com- mitted no other unfair labor practices. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommended that the Re- spondent cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully re- fused to bargain collectively with the Union as to the se- lection of an insurance carrier for an employee health and accident insurance plan and, further, as to the selec- tion and implementation of certain conditions precedent to the hiring of new employees, I will recommend that Respondent be ordered to bargain collectively, on re- quest, with the Union as to these matters and, if an agreement is reached, embody the agreement in a signed agreement. It having been further found that Respondent unlaw- fully refused to execute and to sign a contract reached with the Union, it will be recommended that, on request from the Union, Respondent be ordered to execute and to sign the contract. It having been further found that Respondent has bar- gained in bad faith with the Union by engaging in sur- face bargaining, it is recommended that Respondent be ordered to bargain in good faith with the Union with the specific intent of reaching agreement , if possible. It having further been found that Respondent through its agents and supervisors made certain statements to em- ployees that coerced the employees in the exercise of the rights guaranteed to the employees by Section 7 of the Act, it is recommended that Respondent be ordered to cease and desist from the actions. It having been further found that Respondent has, since April 4, 1981, unlawfully refused to reinstate un- conditionally the strikers listed on "Appendices A and B" to this opinion, plus other strikers, Dana Banning, Darryl Conyer, Thomas Doty, Suhley Ozgundez, Abra- ham Planje, Cheryl Reid, and Jean Umphreys, it is rec- ommended that Respondent be ordered to reinstate all the employees immediately to their former jobs, or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges222 and make them whole for any and all losses of earnings caused by Respondent's unlaw- ful discharges . All the employees who are entitled to re- instatement shall be made whole for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate them. Further, in order to fully remedy Respondent's refusal to execute the collective- bargaining agreement, Respondent shall make whole all employees covered by the aforesaid collective-bargaining agreement for the loss of any benefits that would have 222 It is specifically recommended that Respondent be ordered to hold within a reasonable time after this decision becomes final, a "shake-up" for the purpose of having the returning strikers bid on desired routes in accordance with their seniority 1085 accrued to them under the contract had Respondent exe- cuted the same within a reasonable time after the Union's request for Respondent's signature, computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970).223 In addition, all employees listed in "Ap- pendix A" and those affected employees listed in "Ap- pendix B" and paragraph 9 of the conclusions of law, who were offered reinstatement only if they complied with Respondent's unlawful conditions are entitled to be made whole for any out-of-pocket expenses incurred by the employees as a direct result of attempting to comply with the unlawful conditions. These potential expenses include, but are not limited to, costs of additional medi- cal examinations or medical tests which would not other- wise have been taken, transportation expenses, child-care expenses, and similar expenses.224 All backpay in this case shall be computed in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest as provid- ed in Florida Steel Corp., 231 NLRB 651 (1977).225 With respect to the proper remedy, the Union con- tends (Br. 69-74) that it is entitled to litigation expenses including attorney's fees. Much of the Union's argument is based on authority of J. P. Stevens & Co. v. NLRB, 668 F.2d 767 (4th Cir. 1981).226 This judgment of the court of appeals in J. P. Stevens was recently vacated by order of the U.S. Supreme Court, 458 U. S. 1118 (1982), and re- manded for further consideration in light of Summit Valley Industries v. Carpenters Local 112, 110 LRRM 2441 (1982). In Summit Valley, the U.S. Supreme Court affirmed the decision of the Ninth Circuit Court of Ap- peals that attorney's fees incurred in prior proceedings before the Board may not be recovered pursuant to Sec- tion 303 of the Labor Management Relations Act, 29 U.S.C. § 187. Thus, the decision to vacate the remedy in J. P. Stevens seems to suggest that the Supreme Court did not favor the remedy proposed by the Board in that case. It is unnecessary to speculate further on the appli- cability of J. P. Stevens to the instant case. There are other Board precedents to review which are helpful to resolving the issue at bar. In Kane-Miller Corp., 259 NLRB 1075 fn. 3 (1982), a case involving discharge of strikers for alleged picket line misconduct, the Board denied the charging party's request for attorney's fees, bargaining expenses, and other costs incurred . As author- ity, the Board cited Wellington Hall Nursing Home, 257 NLRB 791 fn. 2 (1981), and cases cited therein. In Wel- lington, the Board stated that such remedies (as those re- quested by the Union here) are appropriate only when a respondent raises defenses so insubstantial as to be pa- 223 Any contributions owing to the Union's employee benefit funds shall be computed in the manner set forth in Merryweather Optical Co, 240 NLRB 1213 (1979). See also World's Best Janitorial Services, 263 NLRB No. 65 (Aug. 16, 1982) (not reported in Board volume) 224 Nothing in this remedy shall be construed as prohibiting Respond- ent from requesting returning strikers to update personal data such as ad- dresses, or from requiring a medical examination at Respondent 's expense where a bona fide reason exists for said examination Where a dispute exists as to whether a returning striker should be required to undergo a physical examination, it is recommended that the parties be ordered to resolve their difference through good-faith collective bargaining 225 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 248 See analysis of this decision published at 109 Analysis 17 (Feb. 1, 1982). 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tently frivolous or in other exceptional circumstances not present here.227 In the instant case, Respondent has pre- vailed with respect to bad-faith bargaining prior to the strike and with respect to a substantial number of strik- ers. On all other charges, I have found against Respond- ent. However, even on those issues where Respondent's evidence has lacked merit, I cannot find that Respond- ent's position was patently frivolous. Put differently, Re- spondent's defense was debatable on all issues.228 The Union has presented substantial evidence reflect- ing Respondent's proclivity to refuse to follow proper grievance-and-arbitration procedures, to refuse to accept the arbitrator's award, and even to refuse to obey the order of a Federal district court. Yet, the Union cannot rest its case on this evidence, as persuasive as it may be to establish Respondent's animus. Whether Respondent had animus toward the Union is not the issue. Under Board law, I must look primarily to Respondent's de- fenses in this case, and only secondarily to what has oc- curred in other proceedings. Perhaps in these other pro- ceedings, Respondent is entitled to litigation expenses. If so, surely a double recovery would not be warranted. If not, perhaps the conduct was not serious enough to de- serve that remedy. I can say, however, in this case, based on all relevant facts and circumstances, I recommend that the Union not be awarded attorney's fees and other litigation expenses. 227 See also Mamott Corp, 258 NLRB 755 fn 1 (1981); Carbonex Coal Co., 262 NLRB 1123 (1982) 228 Two other points should be made . First, even for those few strik- ers where there was virtually no evidence to support a charge of picket line misconduct and I found that Respondent could not have entertained an honest belief that these persons engaged in picket line misconduct, even here I do not find Respondent's defense to be frivolous I find in- stead that these strikers were caught up by an honest mistake with the others due to the large number of persons involved The reinstatement and backpay remedy about them as well as for the others, where closer issues were presented, will suffice. Second, It would be inequitable in this case to award litigation expenses to the Union, even if warranted, be- cause of the Union's studied indifference to the repeated almost daily mis- conduct occurring on the picket line Cf Marines Memorial Club, 261 NLRB 940 (1982) On the other hand, based also on the evidence of record here, I will recommend to the Board that a broad remedial order is warranted.229 [Recommended Order omitted from publication.] 229 Hickmott Foods, 242 NLRB 1357 (1979) APPENDIX A Balch, Elsie Beazley, Robert Chavez, Karen Clarin, Benjamin Cordua, Harney Edwards, Janet Esbri, Mario George, Ivy Gress, Phillip Harvey, David Horn, Adelia McConnell, James Macklin, Diane Mason, Mary Morgan, Jo Ann Nekoui, Atta Piper, Donald Pyatt, Wendell Rowe, Claude Rudat, Christine Rudy, Shirley Schwartz, Michael Sims, Doris Slack, Paul Stewart, Lena Thirtle, Cheri Tovar, Jose Young, Marian APPENDIX B Adams, Clark Alferos, Nancy Balding, Karen Bock, Janel Boothe, Eula Bozick, Donna Camacho, Inez Chasteen, John Corona, Janice Fenderson, James Fox, Dale Franz, Fred Friege, Donna George, Harline Grossman, Stuart Klock, Glen Moore, Kiernon Mountain, Joe Mulligan, Phillip Norman, Ronald Osborne, Marian Patton, Frank Reynolds, Thomas Richard, Julia Robinson, Hubert Silvestri, Susan Sloane, Karen Smith, Michael Sprague, George Steckmesser, Brad Suanico, Hernando Tolwitzke, Judith Tom, Steven Walter, Vasco W. "Bill," Jr. Wright, Stanley