Facet Enterprises, Inc.

152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Facet Enterprises, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 7-CA-22929, 7-CA-23154, and 7-CA-23817 July 29, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On February 27, 1987, Administrative Law Judge Harold Bernard Jr. issued the attached deci- sion . The Respondent filed exceptions and a sup- porting brief,' and the General Counsel and Charg- ing Party filed 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 record2 in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions as modified, to modify the remedy,4 and to adopt the recommended Order as modified. ' The Charging Party filed a motion to strike the Respondent's excep- tions and supporting brief, and the General Counsel filed a request for an order directing the Respondent to resubmit its supporting brief The Re- spondent filed an opposition We deny both the Charging Party's motion and the General Counsel's request 2 The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties a The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 4 As discussed in sec 5 below, we find the unfair labor practice strike conversion date at Madison Heights to be November 6, 1983 We also find the unfair labor practice strike conversion dates at Elmira and De- troit to be the third week of December 1983 and December 24, 1983, re- spectively Accordingly, we modify the remedy to reflect those dates in- stead of the November 3 and December 2 dates found therein In making his multiplant unit determination , the judge relied in part on the Union's method of submitting master agreement proposals to a pool- ing of votes by employees at all three plants Although we agree with the judge that the parties intended to bargain on the basis of a single multi- plant unit, we note that this pooling process indicates only the Union's belief that the three plants constitute one unit and has no bearing on the Respondent's view of the appropriate unit We agree with the judge's finding that an impasse had not been reached in local Detroit plant negotiations regarding the Respondent's proposal to reduce the number of shop stewards from six to three The judge also found that, despite the absence of impasse, the Respondent ad- vised the Union at the strike's conclusion that the number of shop stew- ards it would recognize in the Detroit plant would be reduced to three Because the Respondent implemented its proposal before bargaining to impasse and refused to recognize three of the six shop stewards as union representatives, we agree with the judge that the Respondent violated Sec 8(a)(5) We find it unnecessary to address the issue of whether the Respondent would have been privileged to implement its proposal had the parties reached a valid impasse See Lehigh Portland Cement Co, 287 NLRB 978 (1987) 1. We agree with the judge that the Respond- ent's proposal to remove all the electron beam welder work from the bargaining unit constituted an attempt to alter the unit's composition. Like the judge, we do not find that the evidence establishes that the Respondent, through its offer concerning the electron beam welder, was merely attempting to promote the employee in that classification out of the unit into a supervisory position after bargain- ing in good faith over the transfer of the individual and his work into supervisory status. See, e.g., Tesoro Petroleum Corp., 192 NLRB 354 (1971); Fry Foods, 241 NLRB 76 (1979), enfd. 609 F.2d 267 (6th Cir. 1979). Rather, we find, as he did, that the Respondent's bargaining over this matter represent- ed an attempt to remove the electron beam welder classification from the unit under the guise of pro- moting the incumbent welder to a supervisory posi- tion. That it was not a genuine promotion to super- visory status is shown by the evidence that the welder simply continued to perform his same duties after being removed from the unit. Consequently, it is evident that the Respondent was not insisting simply on transferring unit work to supervisors through the device of promoting unit employees to supervisory positions-a mandatory subject of bar- gaining . Tesoro Petroleum Corp., supra. It was actu- ally trying to alter unit composition by placing an employee classification outside the unit-a permis- sive subject of bargaining. See Newport News Ship- building v. NLRB, 602 F.2d 73, 77-78 (4th Cir. 1979) (employer may not insist on altering compo- sition of a unit under guise of a work transfer), cited in Idaho Statesman, 281 NLRB 272, 277 (1986), enfd. in relevant part 836 F.2d 1396, 1403- 1406 (D.C. Cir. 1988). Accordingly, we agree with the judge's finding that the Respondent unlawfully insisted to impasse on a permissive subject of bar- gaining. 2. Although we agree with the judge's rejection of the Respondent's defense under Trident Seafoods Corp., 244 NLRB 566 (1979), affd. 642 F.2d 1148 (9th Cir. 1981), and his finding that the notice sent to employees during the first week of February 1984 did not adequately cure the electron beam In his discussion of the Respondent's unlawful refusal to provide the Union with information concerning the removal of jobs and machinery from the Detroit plant, the judge stated that the strike at the three plants concluded in February 1985 The judge also stated in the remedy section of his decision that the strike concluded in February 1964 We correct these inadvertent errors as the strike actually ended in February 1984 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be com- puted 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 I, 1987 (the effective date of the 1986 amend- ment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 290 NLRB No. 25 FACET ENTERPRISES welder and direct dealing violations, we find it un- necessary to pass on the judge's finding that the notice was untimely sent to the Respondent's em- ployees. Rather, we rely on the judge's finding that the notice was ineffective because shortly thereaf- ter the Respondent engaged in further unlawful conduct. 3. We also find no merit in the Respondent's ar- gument that it did not unlawfully refuse to provide the Union with financial information because it merely claimed competitive disadvantage at the Elmira and Madison Heights facilities. By linking plant survivals to economic recoveries from the Union and announcing the closing of Madison Heights, the Respondent by its words and conduct clearly pleaded an inability to pay existing wages and benefits and was therefore legally obligated to turn over books and records so that the Union could verify that poverty claim.5 4. We clarify the judge's finding that the Re- spondent violated Section 8(a)(5) of the Act by en- gaging in conduct calculated to split off the Detroit plant from the established multiplant bargaining unit. We observe that the Respondent's proposal for a separate contract covering the Detroit plant was not per se unlawful. Rather, our finding of an 8(a)(5) violation here is based on the Respondent's coercive verbal and written communications to the Detroit employees, which went beyond the bound- aries of protected speech as provided in Section 8(c) of the Act. Thus, we agree with the judge that the Respondent sought to create a division between the Detroit employees and the Union by pitting one part of the bargaining unit (the Detroit em- ployees) against another part (the Elmira and Madison Heights employees), thereby undermining the Union's representative status. We note that our decisions in United Technologies Corp., 274 NLRB 609 (1985), affd. 789 F.2d 121 (2d Cir. 1986) (United Technologies 1); United Tech- nologies Corp., 274 NLRB 1069 (1985), affd. 789 F.2d 121 (2d Cir. 1986) (United Technologies II); and Putnam Buick, 280 NLRB 868 (1986), affd. sub nom. Machinists District 190 v. NLRB, 827 F.2d 557 (9th Cir. 1987), do not dictate a different result. In United Technologies I and II, the Board found no 8(a)(5) violations because the employer's public communications to its employees did not urge the employees to abandon their representative in favor 5 We note that Harvstone Mfg Corp, 272 NLRB 939 (1984), on which the judge relied, was denied enforcement in part by the court of appeals, NLRB v Harvsrone Mfg Corp, 785 F 2d 570 (7th Cir 1986),' on the ground that a claim of competitive disadvantage, without more, does not amount to a claim of inability to pay Because, as noted above, the Re- spondent here indicated that its plants might not survive without conces- sions from the Union, we need not rely on Harvsrone in order to find a violation here 153 of receiving benefits from the employer. Further- more, the employer genuinely acknowledged the union's rightful role as the employees' bargaining representative. In Putnam Buick, the employer's conduct was also found to be protected by Section 8(c) of the Act. The Board, there, however, relied on a union officer's admission that one employer- employee meeting was merely informational in nature and found that at another meeting the em- ployer impliedly suggested that the employees present an offer (already presented to the union) to the union leadership for further consideration. We note that none of these cases involved an employ- er's attempt to achieve its bargaining objectives by pitting one group of employees against another, which is evident here. We also find that the instant case is distinguishable because the Respondent's communications to the Detroit employees denigrat- ed the Union's concern for its representative duties and, in a coercive manner, suggested that the De- troit employees return to work without involving the Union in the decisional process. We further note that although the complaint did not specifically allege a direct dealing violation, the complaint does challenge the legality of the Re- spondent's communications to the Detroit employ- ees on the ground that they constitute conduct de- signed to split apart the historic multiplant unit in violation of Section 8(a)(5). At the hearing, the Re- spondent had the opportunity to fully litigate the nature and extent of its communications to the De- troit employees. It is well established that the Board may find a violation, although not specifical- ly alleged in the complaint, if it is related to the al- legations in the complaint, the matter was fully and fairly litigated, and the respondent has not been prejudiced. Baytown Sun, 255 NLRB 154 fn. 1 (1981). That is the situation here. Accordingly, we conclude that a finding of an 8(a)(5) direct dealing violation is fully warranted. We shall modify para- graph 1(b) of the judge's recommended Order to conform to the violation found. 5. The judge found that the Madison Heights strike was an unfair labor practice strike from its inception on November 3, 1983. We modify the judge's finding to reflect that the Madison Heights strike was an economic strike at its inception which converted to an unfair labor practice strike com- mencing on November 6, 1983. On October 11, Madison Heights Local 771 President Thomas Butler handed out a list of unre- solved issues between the Respondent and the Union to the Madison Heights membership during the strike vote meeting. The list contained several economic items but did not mention the electron beam welder issue. The Madison Heights member- 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ship voted to strike. The union leadership, howev- er, chose not to proceed with the strike authoriza- tion process at that point but continued to negoti- ate with the Respondent. On the afternoon of November 2, International Servicing Representative Smith sought final strike approval from the Union's office of the regional di- rector, as it had final discretion on whether to im- plement the strike. Smith discussed with Assistant Regional Director Preston Harris the Respondent's position on the electron beam welder issue and orally amended the statement of strike issues to in- clude that dispute. There is no evidence that the membership was either apprised of or consented to the oral amendment at that time. Following the dis- cussion, Harris gave Smith final approval to imple- ment the strike. The strike at the Madison Heights plant began on November 3. On November 6, the Madison Heights membership confirmed by vote their repre- sentatives' rejection of the Respondent's final pro- posal. Prior to voting, and for the first time, the employees were informed of the electron beam welder issue. We find that the Madison Heights strike was not an unfair labor practice strike at its inception, but was converted to that status on November 6, when the membership was informed of the Respondent's position on the electron beam welder position and voted to confirm their representatives' rejection of the Respondent's final offer and remain on strike. We do not dispute the notion that unit employees may give standing authorization to their bargaining agents to commence a strike in response to what those agents believe is an employer's unfair labor practice. But we find no evidence that such gener- alized authority was ever given by the rank-and-file employees to the Local's officers, either at the Oc- tober 11 meeting, when the employees approved the strike authorization, or at any time before. In requesting that strike vote, the only grounds of- fered by the Local's officials dealt with economic issues. 6 6. The judge also determined that the Elmira and Detroit plant strikes were converted to unfair labor practice strikes on December 2 when the Respond- " Member Cracraft would find that the Madison Heights strike was an unfair labor practice strike from its inception In voting to strike on Octo- ber 11, the Madison Heights membership gave its union representatives the authority to respond to the progress of negotiations in the manner they saw fit On November 3, Representative Smith decided to call the strike in protest of the Respondent's position on the electron beam welder issue Thus, in Member Cracraft's view, Smith's decision was well within the broad authority a collective-bargaining agent possesses to act on behalf of employees in a strike situation See Woodlawn Hospital, 274 NLRB 796 (1985), and Michigan Ladder Co, 286 NLRB 21 (1987) (con- tinued and vigorous objections of union negotiators to the unlawful com- pany decision to subcontract unit work warrant the conclusion that the strike was an unfair labor practice strike) ent sent a letter solely to the Detroit employees urging their return to work. Although we agree with the judge that the strikes were converted to unfair labor practice strikes, we disagree with the judge's selection of the December 2 date. At the Elmira union membership meeting held in the third week of December, District Representa- tive tive Jack Manione read to the membership a list of unfair labor practice charges filed December 15. These charges included the Respondent's unlawful attempt to bypass the Union and deal directly with the Detroit employees. After Manione read the charges, approximately 50 to 60 members voiced their opposition to the Respondent's conduct. Elmira Local Vice President Fred McElligott cre- dibly testified that these members expressed the po- sition that "there is no way one plant will go back to work without the other two units."7 McElligott also testified that on December 21 or 22 the Elmira picketers began carrying signs which read, "Facet Charged with Unfair Labor Charges." These signs were carried until the strike's conclusion on Febru- ary 17, 1984. At the Detroit union membership meeting held on December 24, Union Vice President Jim Ellis credibly testified that he informed the membership that the Union had filed unfair labor practice charges in December and Respondent President James Malone had told Ellis over the phone that "he [Malone] had been down on the picket lines talking to the people, asking them were they satis- fied . . . would they come back." Staff Representa- tive Wally Waller also credibly testified that Ellis told the Detroit employees the Respondent was "badgering" some picketers into coming back to work and that Ellis asked whether other employees had been approached by the Respondent. Detroit Local President Tony Rahall similarly testified that he was informed by either Ellis or International Representative John Mando that the Detroit meet- ing was called because "people . . . were com- plaining about management coming out talking to the people, going in without a contract, and no union." Two picketers, Ilah Drake and Jack Muhaw, both credibly testified that Malone had ad- mitted to them that "he thought he could get into trouble for talking to the people on the picket line, [b]ecause he thought that the [U]nion would think that he was trying to bargain and talk us back to work." Finally, Mando credibly testified that in mid-December he issued instructions to each Local to change some of the picket signs to read "Unfair Labor Practice Charges." ' As stated in sec 4, supra, the Respondent's direct dealing violation includes coercive solicitation of the Detroit employees to return to work FACET ENTERPRISES Based on the record as a whole, we find that the Respondent's unlawful attempt to bypass the Union and deal directly with the Detroit employees in part caused the Elmira and Detroit memberships to resolve to stay out on strike and actually prolonged the strike. Blu-Fountain Manor, 270 NLRB 199, 206 fn. 14 (1984), enfd. sub nom. NLRB v. Jarm Enter- prises, 785 F.2d 195 (7th Cir. 1986). Accordingly, we modify the judge's conversion findings and find that the Elmira and Detroit plant strikes converted to unfair labor practice strikes as of the dates of the membership meetings when the memberships were informed of and objected to the Respondent's un- lawful direct dealing . Because the record is unclear concerning the date of the Elmira membership meeting, we leave its determination to the compli- ance stage of this proceeding. In light of our modification of the judge's find- ings, we shall issue Amended Conclusions of Law, a modified Order, and a new notice to employees. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 7. "7. Due to the Respondent's conduct described above in paragraph 6, the economic strike at the Madison Heights plant underway since November 3, 1983, was prolonged and thereby converted to an unfair labor practice strike commencing on No- vember 6, 1983." 2. Substitute the following for Conclusion of Law 9. "9. By dealing directly with employees about terms and conditions of employment, the Respond- ent refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act." 3. Substitute the following for Conclusions of Law 11 and 12. "11. By unilaterally changing employment condi- tions such as established grievance procedures, paid time for representative matters, seniority recall rights, plant access for employee representatives, and number of shop stewards , and refusing to rec- ognize three of the six shop stewards as union rep- resentatives without notifying, consulting, or bar- gaining with the Union as the exclusive representa- tive of its employees in the appropriate bargaining unit, the Respondent violated Section 8(a)(5) of the Act. "12. Notwithstanding unconditional request for reinstatements made by the Union on behalf of its striking employees on February 18, 1984, the Re- spondent has refused to reinstate them to their former or substantially equivalent positions , there- by engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act." 155 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Facet Enterprises, Inc., Detroit, Michi- gan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraphs 1(b), (c), and (d). "(b) Refusing to bargain in good faith with the Union by dealing directly with employees about terms and conditions of employment. The bargain- ing unit is: All production and maintenance employees employed by Respondent at its Detroit, Michi- gan plant (Fuel Devices Division), its Madison Heights, Michigan plant (Filter Products Divi- sion) and its Elmira, New York plant (Motor Components Division); but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. "(c) Refusing to bargain in good faith with the Union by unilaterally changing employment condi- tions such as established grievance procedures, paid time for representative matters, seniority recall rights, plant access for employee representatives, and number of shop stewards, and refusing to rec- ognize three of the six shop stewards as union rep- resentatives without notifying, consulting, or bar- gaining with the Union as the exclusive representa- tive of its employees in the appropriate bargaining unit. "(d) Refusing on request to reinstate employees engaged in an unfair labor practice strike." 2. Substitute the following for paragraphs 2(a) and (b) and reletter subsequent paragraphs. "(a) Offer the unfair labor practice strikers imme- diate and full reinstatement to their former posi- tions or, if those positions no longer exist , to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, in the manner set forth in the remedy section of the judge's decision as modified by the Board's decision regarding the dates the Madison Heights, Detroit, and Elmira strikes became unfair labor practice strikes." 3. Substitute the attached notice for that of the administrative law judge. 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX tive of our employees in the following appropriate unit: NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT do anything to interfere with these rights. WE WILL NOT refuse to bargain in good faith with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) by insisting to impasse and there- by preventing an agreement from being reached concerning your terms of employment on our pro- posal to exclude the electron beam welder position from the bargaining unit. WE WILL NOT refuse to bargain in good faith with the Union by refusing to furnish the Union with information relevant and necessary to its duty to represent you, such as information on our finan- cial status, on movement of plants and machinery, and picket line misconduct. WE WILL NOT refuse to bargain in good faith with the Union by dealing directly with employees about terms and conditions of employment. WE WILL NOT unilaterally alter the employment conditions of employees concerning the established grievance procedures, paid time for representative matters, seniority recall rights, plant access to our premises by your union representatives, and number of shop stewards, and refusing to recognize three of the six shop stewards as union representa- tives. WE WILL NOT, in certain circumstances ex- plained in the Board's decision, refuse reinstate- ment to former Madison Heights, Detroit, and Elmira unfair labor practice strikers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain in good faith with the aforenamed Union as the exclusive representa- All production and maintenance employees employed by us at our Detroit, Michigan plant (Fuel Devices Division), our Madison Heights, Michigan plant (Filter Products Division) and our Elmira, New York plant (Motor Compo- nents Division); but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and if an understanding is reached, embody any such understanding in a signed agreement. WE WILL restore and place in effect retroactive to February 18, 1984, all conditions of employment which we were found herein to have unlawfully changed, including the established grievance proce- dures, paid time for representative matters, seniori- ty recall rights, and plant access; and WE WILL make whole employees for any losses they may have incurred as a result of our unlawful action in changing such employment conditions. These con- ditions will remain unchanged until such time as the parties execute a new agreement, or bargain to good-faith impasse. WE WILL offer the unfair labor practice strikers, except those discharged for cause by us, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, and WE WILL make each of them whole for any loss of wages suffered by reason of our unlawful conduct against them as provided in the Board's decision. WE WILL furnish the Union with information rel- evant and necessary to its collective-bargaining re- sponsibilities. FACET ENTERPRISES, INC. Mark D. Rubin and A. Bradley Howell, Esqs., for the General Counsel. Steven J. Fishman and Frank T. Mamat, Esqs., for the Respondent. Betsy A. Engel and Leonard R. Page, Esqs., for the Charg- ing Party. DECISION STATEMENT OF THE CASE HAROLD BERNARD JR., Administrative Law Judge. Pursuant to second amended consolidated complaint issued on 31 October 1984, I heard this matter on numer- ous days in 1985 in Detroit, Michigan. The case involves alleged violations of Section 8(a)(1), (3), and (5) of the Act occurring in the context of negotiations for a new collective-bargaining agreement, and including issues FACET ENTERPRISES over refusals to provide information, unlawful impasse bargaining about a nonmandatory subject, efforts to split an established multiplant bargaining unit, whether a strike was economic or an unfair labor practice strike, picket line misconduct, refusals to reinstate former strik- ers, and asserted unilateral action by Respondent. On the entire record, including credibility determina- tions based on witnesses' deportment on the witness stand, and briefs filed by the parties, I make the follow- ing FINDINGS OF FACT I. JURISDICTION Respondent, as alleged in the complaint and admitted in its answer, is an employer engaged in commerce within the meaning of the Act. The Union (UAW) and its Locals 104, 771, and 604 are labor organizations as defined in the Act. II. APPROPRIATE UNIT The complaint alleges that the appropriate unit is: All production and maintenance employees em- ployed by Respondent at its Detroit, Michigan plant (Fuel Devices Division), its Madison Heights, Michigan plant (Filter Products Division) and its Elmira, New York plant (Motor Components Divi- sion), but excluding office clerical employees, pro- fessional employees, guards and supervisors as de- fined in the Act. The record shows that the Union has represented Facet's employees at the three named plants under contracts in force from April 1976 to 30 April 1977, 1977 through 1980, and 1980 through early November 1983 As the long-established and recognized collective-bargaining representative for these employees, the Union has negoti- ated major terms and conditions of employment covering all the unit employees at the three plants in master agree- ments over the years. Under the long-established practice negotiated master agreements are submitted to all the employees in the three plants for ratification, the out- come being determined by pooling the votes. Although the parties left some subjects to be resolved in local sup- plementary agreements tailored to each plant's circum- stances, as early as 1976 it was specifically provided in the parties' agreement that such agreements would have to be referred to the National Facet Department of the Union for approval before becoming effective. (G.C. Exh. 42, par. XXIII.) In all the years the parties lived with multiplant bar- gaining , Respondent never denied the appropriateness of the master agreement unit, in fact, even during the failed negotiations for a new contract to replace the 1980-1983 agreement, Respondent had occasion in various commu- nications to refer to the "recognized three-plant bargain- ing unit," declaring that, "At no time did Facet every [sic] try to split up the three-plant bargaining unit." (G.C. Exh. 38 at 1,2.) In addition, by a "Notice" to all employees dated 1 February 1984 Respondent stated that "Facet disavows and repudiates any intention at any time 157 to split the Detroit plant from the historic multiplant bar- gaining unit (which includes the •Detroit, Madison Heights and Elmira [New York] plants)." This communi- cation refers to the "historic multiplant unit" throughout its contents. (G.C. Exh. 25.) Nevertheless, the Respondent, for the first time, sought to question the appropriateness of the established unit in its answer and on brief in these proceedings, pointing to dissimilar characteristics at the three plants, such as geographical separation and lack of interchange, among other factors, to support its unprecedented con- tention. Respondent's tardy contention after 7 years of bargaining successive contracts in such unit is not enti- tled to much weight. Williams Enterprises, 212 NLRB 880, 884 (1974); Harding Glass Industries, 216 NLRB 331 (1975); Maphis Chapman Corp., 151 NLRB 73, 86 at fn. 34 (1965); and NLRB Y. Midvalley Steel Fabricators, 621 F.2d 49, 53 at fn. 3 (2d Cir. 1980). In any event, Re- spondent also referred to the fact that original Board cer- tifications, from 1935 to 1940, fail to support the view that the Board ever certified a multiplant unit as opposed to separate plant units, suggesting the unit was never really an appropriate one from its inception so that the complaint should be dismissed. In effect, Respondent on brief proposes for unit determination purposes, "the Board enter a time capsule and return to when employ- ees were first assigned" at the three plants and reappraise the unit as it would have deemed it appropriate had the matter been before the Board in an initial unit determina- tion many years ago, a superficial proposal indifferent to the parties' admitted collective-bargaining history since then and their current state of affairs, and therefore wholly unwarranted. Gibbs & Cox, Inc., 280 NLRB 953 (1986). The factors extant at the three plants here ad- dressed by Respondent to support its view, as the Board noted in Gibbs & Cox, Inc are of lesser cogency where a history of meaningful bargaining has developed. See, e.g., Standard Brands, 75 NLRB 394 (1947); West Virginia Pulp & Paper Co., 53 NLRB 814 (1943) In such circum- stances, greater latitude should be accorded the col- lective rights of employees to pursue and preserve the pattern of representation of their choosing. Thus, to characterize the unit from the vantage of any period of time but the one presently under con- sideration is to disturb the reasonable balance the Board seeks to achieve between the aims of assuring freedom of employees' choice and fostering estab- lished bargaining relationships [280 NLRB at 954- 955.] Viewing the unit presently, it is clear that the parties' multiplant unit is appropriate. Thus, it is well established "that parties to a collective-bargaining relationship may by contract, bargaining history, and course of conduct . . form a multiplant bargaining unit." Anheuser-Busch, Inc., 246 NLRB 29, 31 (1979); Miles & Sons Trucking, 269 NLRB 7, 14 (1984); and White-Westinghouse Corp., 229 NLRB 667 (1977), see also General Electric Co., 180 NLRB 1094, 1095 (1970); Canterbury Gardens, 238 NLRB 864 (1978); and General Motors Corp., 120 NLRB a 158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1215, 1218 (1958). That they have done so here is readily apparent from the contracts between the parties from 1976 through 1983, the bargaining for major terms and conditions of employment covering employees at the three plants at master agreement negotiations preceding those contracts and the multiplant contract ratification procedures requiring a majority of yes votes among all three-plant bargaining unit members combined I find that, based on all the foregoing, that the above-described unit of employees for which the Union and its locals have been, and remain, the exclusive bargaining repre- sentative, is a unit appropriate for collective bargaining as defined in the Act iii. AGENCY STATUS OF FACET OFFICIALS On the basis of admissions in the pleadings and the entire record, I find that James Malone, Paul Dick, Robert Schaeffer, Thomas Robertazzi, Bob White, T J. Westfall, Frank Vaughn, William Popadynec, Ron Goral, E. J. Mullane, Donald Houser, John Evans, and Robert Childress occupied the positions as described in paragraphs 7(a) and (b) in the complaint and at all times material were supervisors and/or representatives and agents of Respondent within the meaning of the Act. iv THE UNFAIR LABOR PRACTICES A. The 10(b) Issue Respondent moved at hearing and on brief to dismiss complaint paragraph 13 which alleges an unlawful refus- al by Respondent to furnish the Union with financial in- formation, contending that this matter was covered by a dismissed charge in Case 7-CA-22929 from which no appeal was ever taken thereby rendering the subject matter time-barred from these proceedings, citing both Ducane Heating Corp and ITT Lighting Fixtures.' Re- spondent makes further reference to the view that a sep- arate later charge in Case 7-CA-23154 cannot support the issuance of complaint paragraph 13 either because nowhere on the face of that later charge or in the appeal from a partial dismissal does the matter contained in paragraph 13 appear. At the outset, it is clear that the cited precedent, deal- ing with reinstatement or revivals of abandoned charges time-barred by Section 10(b) in the Act, is inapplicable to the instant case, where complaint was authorized on the basis of a then active, timely charge in the later Case 7-CA-23154, rather than the earlier dismissed case, Case 7-CA-23159 (R. Exh 7). This being true, paragraph 13 is not a reinstated or revived abandoned charge whose subject matter is barred by the cited cases. In this con- nection, it should be noted further that the dismissed charge, Case 7-CA-22929, was a sharply limited allega- tion of bad-faith bargaining by, inter alia, Respondent's refusal of the Union's request for financial information early in the parties' handling of this matter without fur- ther reference to any factual circumstances, while com- plaint paragraph 13 based on the later charge identifies numerous dates and places when the allegedly unlawful ' 273 NLRB 1389 (1985), and 267 NLRB 709 (1983) refusals to provide the requested financial information had continued to occur and the problem had matured. On the face of things, therefore, the dismissed charge and paragraph 13 are clearly not one and the same and there is no evidence to support such view, or the Re- spondent's "revival" theory based thereon. Finally, while it is true that the allegations in the timely charge do not specifically address a refusal to pro- vide financial information, this fact is not controlling. The parties continued negotiations after the dismissal in Case 7-CA-22929 and, more significantly, the matter of financial information requests as well as other informa- tion requests arose in the dynamics of those ongoing ne- gotiations during which numerous allegations of unlawful conduct by Respondent arose. In fact, specific allegations of unlawful refusals to provide other information con- cerning sinker misconduct and equipment removal had been found meritorious during the continuing investiga- tion. It should be further noted that this kind of alleged mis- conduct by Respondent was addressed to the General Counsel's attention in an appeal from the Regional Di- rector's partial dismissal in Case 7-CA-23154 (R. Exh. 7). All the above being true it was well within the rea- sonable exercise of sound discretion by the General Counsel to evaluate the parties' entire situation at the current stage in their collective-bargaining relationship, rather than being foreclosed from viewing a total picture by a contention based merely on an earlier dismissal of an undeveloped issue or the facial allegations in Case 7- CA-23154 just so long as the General Counsel did not get, "so completely outside of the situation which gave rise to the charge that it may be said to be initiating the proceeding on [her] motion [for] then the complaint [would] fall as not supported by the charge." NLRB v. Kohler Co., 220 F.2d 3, 7 (7th Cir. 1955). For these rea- sons, including the fact that the allegations in complaint paragraph 13 concerning refusal of requests for financial information, I find, are clearly associated with other al- leged unlawful refusals of information requests set forth in the complaint, I conclude that the timely 8(a)(5) charge in Case 7-CA-23154 is sufficient to support the additional incidents of financial information request deni- als covered by the complaint. Based on the foregoing, Respondent's motion is denied. Flex Products, 278 NLRB 417, 418 (1986); NLRB v. Fant Milling Co., 360 U.S. 201 (1959); NLRB v. Complas Industries, 714 F.2d 733 (7th Cir. 1983), and Flex Plastics, 262 NLRB 651, 652 (1982). B. Respondent's Proposal on the Electron Beam Welder Classification The complaint alleges that Respondent insisted to im- passe on its contract proposal regarding the electron beam welder (EBW), a job classification included in the unit at Respondent's Madison Heights plant, thereby vio- lating Section 8(a)(5) in the Act because the proposal concerned a permissive subject of bargaining, a reduction in the composition and scope of the bargaining unit, as to which, unlike a mandatory subject of bargaining, neither party could condition their agreement for a new con- tract FACET ENTERPRISES 159 1. Background The position has been included in the collective-bar- gaining unit at the Madison Heights plant since that plant's inception, and has been covered by the collective- bargaining agreements mentioned above . At negotiations beginning on 20 September 1983 for a new agreement at Madison Heights, Respondent proposed to "transfer elec- tron beam welder classification to salaried status" this term being considered by the Union and Respondent to denote outside the bargaining unit . Respondent, at con- tract negotiations in prior years, had made similar pro- posals to no avail, meeting consistent union resistance, and little discussion occurred on 20 September. At the next session on 22 September Respondent's minutes show that it sought to place the job classification among those excluded from the bargaining unit as described in the parties' local collective-bargaining agreement, again without success. After the two efforts plainly designed to exclude the job classification en haec verba from the unit failed, Respondent next proposed in later September and October meetings to exclude the incumbent unit employ- ee in that position , Don Doctor, by transferring him to a salaried status-out of the bargaining unit where he could perform other duties , as well as training an up- grader to do the EBW work as a unit employee, and be available for EBW work himself. Respondent's minutes reflect the Union's refusal to "put the EBW on salary"- which is to say exclude the classification from the unit. The continued negotiations on this subject, as well as Respondent's representative's comments concerning the proposal, evidence the importance attached to it in these negotiations. Thus, in explaining the value to the compa- ny in being able to continue EBW operations during a strike because they were profitable, Industrial Relations Director Donald Houser during 13 October negotiations stated the proposal to have EBW incumbent Doctor on salary and out of the unit was a very important strikeable issue for the Company . The Union's opposition to such proposal was equally adamant. 2. Respondent's final offer On 2 and 3 November the parties continued negotia- tions but deadlocked on Respondent's "final" offer to the Union, which Industrial Relations Director Houser told the Union contained five "hang tough" issues. Among these five issues covered by Respondent 's package, "indi- visible" offer was the following proposal concerning EBW: Article IX Add new paragraph as follows: the regular work formerly performed by the Electron Beam Welder Operator Set Up and Op- erate Leader Classification shall, at the discretion of the Company, be performed outside the bar- gaining unit . The person formerly holding that classification shall be transferred out of the unit. Larry Smith, an International representative for the Union assigned to service the Madison plant bargaining unit and a member of the negotiating committee , testified without contradiction that he informed Houser the Union could not agree with the EBW proposal-or the other four proposals-and since Houser had informed the Union the five-item proposal was a final (and) package one, the committee could not recommend it to the union membership and, "We were prepared to strike at mid- night." Thomas Butler, president of the Madison plant local union, testified that Smith told Houser, "there was no way we could accept the beam welder job going to salary." Respondent's written final proposal excluded all the EBW work from the unit , at Respondent's discretion, and the only incumbent unit employee holding that position, Don Doctor, thus effectively eliminating the EBW job classification, curtailing the established bargaining unit composition, and depriving the affected employees of union representation . One can say the proposal , if imple- mented, was tantamount to Respondent 's withdrawing recognition of the EBW job classification from the Union, subject to Respondent's sole unilateral right or discretion, for there would be nothing of substance or value left to the job classification stripped of an EBW employee or EBW work to be performed . Cf. San Anto- nio Portland Cement Co ., 277 NLRB 309, 313-315 (1985). This being the case , I find that Respondent's offer con- cerned a permissive subject of bargaining , the elimination from the bargaining unit of the EBW job classification, and consequent reduction in the composition and scope of the established collective-bargaining unit . Newspaper Production Co., 503 F.2d 821 , 828 (5th Cir. 1974). The notion posed by Respondent on brief that an earli- er agreed-on "upgrader EBW" position to be in the unit is contrary to any Respondent intention to remove the EBW job classification from the unit via the Respond- ent's 2 and 3 November EBW proposal is without merit. Respondent's own director of industrial relations , Donald Houser, testified that he posted an upgrader letter-not previously agreed on by the Union as to content-for employee bids "so we'd be ready if Doctor (the sole in- cumbent of the EBW job classification) was promoted and allowed to perform the work," the latter reference to the need for agreement by the Union to the two-part ear- lier proposal by Respondent involving Doctor 's transfer out of the unit and an upgrader classification being cre- ated, described above . Because the Union never agreed to such proposal, viz, removing Doctor from the unit, and the posting , as admitted by Houser, was conditional on such agreement by the Union to the entire proposal, there simply never was an established upgrader classifi- cation position . Further confirming this view is the testi- mony by Union Representative Butler, the Madison plant local union president. He testified ' that he recalled as of the date of Respondent 's final EBW proposal, set forth above on 2 and 3 November , that the Company had dropped the "upgrader aspect " and was just going to make Doctor salaried , that this was the hang-tough issue-the salaried status (outside the unit) of the EBW classification-and further that the Union had never agreed to the posting of an upgrader letter . In this con- text, references to an alleged assignment-never complet- 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed or carried out at any time relevant-of a future up- grader position and an employee grievance over such se- lected future candidate has no persuasive force for the simple reason that Respondent's final offer regarding its EBW proposal made no reference whatsoever to the up- grader classification, a matter reasonably viewed as both integral to the EBW classification problem and one which would reasonably have been discussed or offered for formalization in the article 9 proposed addition had Respondent intended to make it a part of the proposal. In fact, as noted, the plain language in the proffered new addition to article 9 puts the performance of all regular EBW work outside the unit at the Company's discretion, as well as the unit employee holding the EBW position. The proposal simply renders the upgrader matter a non- issue. On brief Respondent further urges that case law in- volving proposals to allow the assignment to work out- side the unit by former unit personnel promoted to su- pervisory positions holds that such proposals are manda- tory subjects of bargaining concerning the assignment of work rather than changes in the scope of the unit The cases cited by Respondent, one involving a subcontract- ing issue, Fry Foods, Inc, 241 NLRB 76 (1976), and the others involving the employer's right to appoint supervi- sory personnel are readily distinguishable from the in- stant case, where the issue from the start in negotiations was the elimination of the EBW job classification from the unit to a "salaried" or excluded status just to protect the Respondent from loss of profits from the EBW oper- ation during a strike. Unlike other cases cited by Re- spondent, Tesoro Petroleum, 192 NLRB 354 (1971), being representative, the Respondent proposal here did not in- volve an employer's right to make nondiscriminatory su- pervisory promotions of personnel who continued to per- form bargaining unit work There was, here, no proba- tive evidence to support Respondent's alleged "intent" to promote Doctor to supervisor or any evidence he ever became a supervisor at times relevant to appraising the nature of Respondent's final EBW proposal on 2 and 3 November which nowhere makes reference to such pro- motion, stating only in this respect that "the person for- merly holding that classification shall be transferred out of the unit." Moreover, Respondent's proposal specifical- ly called for all the EBW classification work being per- formed outside the bargaining unit, so that the result would not be analogous to a situation where the classifi- cation continued to exist but some of the work was being performed by supervisors excluded from the unit. Here, both the work and its performance would be outside the unit, so Respondent's proposal, rather than relating to the amount of EBW work which the bargaining unit would perform, sought to remove it entirely from the unit and thereby constituted bargaining over a type of work which historically had defined the bargaining unit with the forseeable result: altering the composition of the bargaining unit. Analysis As recently observed with Board affirmance (citing Newport News Shipbuilding v. 1VLRB, 602 F.2d 73, 77-78 (4th Cir. 1979)): The Board agrees that, unless transfers are specifi- cally prohibited by the relevant collective bargain- ing agreement, an employer may transfer work out of the bargaining unit, as long as the employer first bargains in good faith and is not motivated by anti- union animus. [End of Respondent's quote.] See University of Chicago v. NLRB, 514 F.2d 942, 949 (7th Cir. 1975); accord, Boeing Co. v. NLRB, 581 F.2d 793, 797 (9th Cir 1978). It does not follow, how- ever, that an employer, under the guise of the transfer of unit work, may alter the composition of the bargain- ing unit. To do so would not only modify the job functions of the various unit members but also affect their right to representation. Thus, implicit in the requirement that the employer bargain in good faith before changing unit work is the assumption that the affected member of the unit be represented. [Emphasis added.] Idaho Statesman, 281 NLRB 272, 275-277 (1986). For these further reasons, I conclude Respondent's proposal concerned a nonmandatory subject of bargaining. Idaho Statesman, ibid.; Newspaper Printing Corp., 232 NLRB 291, 292 (1977); Kobler Co., 273 NLRB 1508 (1985); and Farlas Meat Co. I, 239 NLRB 1396 (1979) It also is clear, and I conclude, that Respondent insist- ed on the EBW proposal as part of an indivisible "must item" in a package containing five hang-tough items under circumstances reasonably leading to the perception that its agreement to a contract was conditioned on the Union's acceptance, and thus that Respondent had insist- ed in the face of continued, detailed union opposition on such proposals to the point of impasse over, inter alia, the nonmandatory EBW proposal. Indeed, by letter dated 9 November 1983 to the chairman of the Union's bargaining committee Industrial Relations Director Houser, long experienced in the field of labor relations, referred to the parties' "current impasse," and there was no doubt that, as clearly described by Houser, the Re- spondent's EBW proposal was a stnkeable issue for the Company, a characterization unwithdrawn-indeed fur- ther confirmed-on the very eve of the strike. Accord- ingly, it is concluded that Respondent insisted to impasse on a nonmandatory subject as a condition or prerequisite to an agreement on mandatory subjects-the EBW pro- posal being "indivisible" from them thereby violating its collective-bargaining obligations under Section 8(a)(5) of the Act The conclusion that these parties were at impasse on 3 November takes into account more than just the gut- wrenching slowness and lack of any progress on Re- spondent's final offer that evening and in the early morn- ing hours. Also considered is the Respondent's recog- nized right to engage in hard bargaining-oftentimes ac- companied by the use of so-called final proposals How- ever, in this instance, Respondent's own description of its proposals as "final," consisting of "must" proposals which the Company viewed as "strikeable" are more than window dressing dramatics given the bone-chilling prelude to negotiations in September when Respondent announced it had to have economic recoveries, at which time the parties' effort at bargaining bogged down in FACET ENTERPRISES what developed into a long-lasting, vexatious dispute, discussed further below, over Respondent's alleged refus- al to provide information concerning the need for such recoveries. Also preceding the 2 and 3 November final negotiations before the violence-characterized strike, the Respondent removed equipment and machinery from the Madison Heights plant it proposed to relocate. This job- destroying action infused still greater tension and obsti- nacy in the parties' attitudes against an agreement, except on terms deemed more favorable by each Indeed, it was just such action which propelled Madison plant employ- ees to strike authorization procedures preceding the 2 and 3 November negotiations, followed by still further strike authorization efforts in the course of those negotia- tions including, as noted, the EBW dispute It is not, in the sense of present analysis, relevant whether Respond- ent had the right to do these things, but it is instructive as to the likely effect-a bad one I believe-such circum- stances had on the parties' efforts to negotiate an agree- ment and the question, whether there were any reasona- ble prospects for such to occur This is because it has long been established that "the contemporaneous under- standing of the parties as to the state of the negotiations [are all] relevant to be considered in deciding whether an impasse in bargaining existed." Taft Broadcasting Co., 163 NLRB 475, 478 (1967), petition for review denied 395 F.2d 622 (D.C. Cir. 1968) Further supporting this pessi- mistic view is the fact that the parties were confronting still again their age-old dispute over putting the EBW out of the unit and the view of the Union's representa- tive on the striker's eve that the Union was being asked to make all the movement in the negotiations without concessions being advanced by the Company-again the truth behind such a statement not being wholly control- ling but nevertheless revealing the cause and fact of hardened positions of the parties on that date. In addition the Union must have been further hardened against ex- pecting any agreement by Respondent's efforts to reduce paid union representation time for unit employees, as by the Union's described perception that the Respondent raised subjects on 2 and 3 November which the Union believed had already been agreed on by the parties in earlier negotiations. Frankly, those very bleak and dis- couraging circumstances leave no room to conclude that there was even a glimmer of hope the parties could reach an agreement, and as characterized by the Re- spondent's own Industrial Relations Director Houser later, amply support the conclusion they were at im- passe. Newport News Shipbuilding Co., 236 NLRB 1637, 1643 (1978), Taft Broadcasting Co., 274 NLRB 260, 261 (1985); Idaho Statesman, supra; Newspaper Printing Corp. supra, and Bozzuto's Inc., 277 NLRB 977 (1985). The importance of the EBW issue to the parties in this case has already been highlighted It was a bone of con- tention in every contract negotiation since the Madison plant started operations. So important was it to the Madison plant unit members that, according to incum- bent EBW operator Donald Doctor, when the upgrader letter was posted seeking candidates for a "future trans- fer" (conditioned on the Union agreeing to transfer Doctor out of the unit as a "working supervisor" who would on occasion perform the work-which the Union 161 never agreed to) "about half the plant bid on it" because it was a good job involving a lot of overtime work. Union Representative Larry Smith, as corroborated by the testimony of Madison plant Local President Butler, told Respondent's representatives on the eve of the strike there was no way the Union would agree to the loss of the EBW position from the unit and, while Industrial Re- lations Director Houser denied this intention at the hear- ing, where he described the Union's representatives as being "confused" over the Company's position-which he described as merely seeking Doctor's placement out- side the unit where he could perform EBW work as "necessary," the cold reality in Respondent's written final, must, hang-tough, strikeable indivisible proposal stated otherwise, according sole discretion to Respond- ent on the subject and effectively removing the EBW from the unit C Contributing Cause of the Madison Plant Strike Smith kept higher union levels aware of the Respond- ent's position on EBW on the evening of 2 November as part of impending strike authorization developments; in addition, it is clear that the EBW proposal-along with the other four items in the Respondent's final offer, which Houser informed Smith "could not be picked apart"-constituted a linchpin to an agreement being reached for. When the Union informed Houser it could not agree to any one of the proposals, let alone all five of them, in a kind of mutual understanding it was under- stood that negotiations could go no further in the face of the Respondent's final offer, with the parties being in a strike mode, with Smith hoping it would be a clean strike, and with Houser asking if there would be any problem with salaried employees crossing the line. At that moment there can be no reasonable dispute that the strike was caused, in significant part, by the Respond- ent's unlawful conduct in insisting to impasse on its EBW proposal. The union bargaining team consisted of Madison plant employee representatives, the full plant shop committee, as well as International Representative Smith, reacting on the very heels of the impasse involv- ing, inter alia, the EBW matter with the announcement of a strike, which took place the morning of 3 November at the Madison plant Consistent with the bargaining committee's actions, the Madison plant employees voted 87 to 3 in confirming rejection of Respondent's contract proposals on 6 November at a local union meeting where they were informed beforehand in writing and by speak- ers concerning the EBW issue, including a specific com- munication by Local Union President Butler that the Company's proposal insisted on EBW going salaried [out of the unit] (G.C. Exh. 207.) Butler also testified in this connection to, "the EBW, the classifications, were the thorns in the side," and recalls one employee exclaiming "there'd be no way they'd accept a salary job on the beam welder " It is true that an earlier strike authoriza- tion at the Madison plant on 11 October 1983 made no mention of the EBW issue-but this would not militate against the causal connection finding because it was not until 2 November that Respondent proposed and unlaw- fully insisted on, the EBW proposal discussed above 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about which the parties had a long and continuing dis- pute, described as "stnkeable." Furthermore, while it is also true that other issues were present and in a block prevented the parties from reaching agreement thereby triggering a strike, it is readily apparent that the EBW issue contributed significantly to the employees' decision and action to strike on 3 November 1983, and I so find. Accordingly, it is concluded that the strike at the Madi- son plant was an unfair labor practice strike from its in- ception. Newport News Shipbuilding, 236 NLRB 1637 (1978), enfd. 602 F.2d 73 (4th Cir. 1979); Tarlas Meat Co., supra; C & E Stores, 221 NLRB 1321 (1976), enfd. 611 F.2d 654 (6th Cir. 1979). Respondent urges further on brief that, even assuming its proposal was a permissive subject of bargaining, it was privileged to insist on the Union's concurrence as a condition of Respondent's agreement to a contract be- cause the Union had not refused to negotiate over the proposal and had even discussed it with Respondent, citing the Board's adoption of the administrative law judge's decision in Inner City Broadcasting Corp., 270 NLRB 1230 (1984). This contention is without merit. The record shows that the Union rejected out of hand Respondent's written proposal to eliminate the EBW classification from the bargaining unit as found during discussion of Respondent's final offer package on 2 and 3 November. There was never any "bargaining" over that proposal in its final form by the Union Even putting aside the factual mischaractenzation, Respondent's cited authority also fails to support its assertion. In the Inner City Broadcasting Corp., case, supra, the respondent there, unlike here, did not demand that its proposal be adopted by the union once the latter refused unequivo- cally to discuss the subject, hence no insistence to im- passe was found to have occurred. Here, the record is clear that the Union rejected any proposal to put EBW outside the unit, to have EBW "go salaried" from the first time such proposal was advanced, and yet Respond- ent persisted in seeking such change in three proposals, including its final one. (G.C. Exh. 44-B; G.C. Exh. 47; G. Exh. 55, art. 9.) Thus factually the cited case is inap- posite to the present case. Finally, there is grave doubt the Respondent's asserted legal principle has any life to it given the Board's rejection of such theory in both Ameri- can Stores Packing Co., 277 NLRB 1656, 1658 fn. 7 (1986); and its later affirmance of the decision of the ad- ministrative law judge in Idaho Statesmen, supra at 275. In American Stores Packing Co., supra at fn. 7, the Board notes: Although we find it unnecessary to pass on whether an employer has any duty to furnish infor- mation about a permissive subject once it has volun- tarily bargained about it, the Supreme Court has held that a permissive subject does not become a mandatory subject merely because the parties have bargained about it. Chemical Workers v. Pittsburgh Glass Co., 404 U.S. 157, 187 (1971). Further, the Su- preme Court has stated that "each party is free to bargain or not to bargain and to agree or not to agree" about permissive subjects of bargaining. NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958). Given the foregoing, Respondent's contention is rejected. D. Respondent's Refusal to Provide Financial Information At the outset in negotiations during a meeting on 23 August 1983 called by Respondent and attended by the parties' representatives for collective bargaining, Re- spondent told the Union that it was suffering at the three plants from a competitive disadvantage based on wages and benefits paid by its competitors, and that it was suf- fering at the Madison Heights and Elmira plants from a greater competitive disadvantage in terms of wages and benefits than was the case at the Detroit plant. Union Representative Jim Ellis, assistant to UAW's vice presi- dent, testified without contradiction that the purpose of the meeting was for the Company to review and update its status and to tell the Union that they were in "bad shape." Ellis testified that Robert Childress, then vice president of industrial relations, informed the union rep- resentatives the three operations needed some relief, spe- cifically wage reliefs to become competitive. Childress did not deny Ellis' testimony and stated the Company was "extremely concerned" about insurance costs and its need for competitive wage rates, notifying the Union on 15 September 1983 that the local (the Union) was to dis- cuss recoveries and the wage rates needed by the Com- pany including ending the 8-cent bonus at Elmira and the recovery (reduction) of other wages. Just how serious that concern was is shown by negoti- ations on 28 September, 31 October, and 2 November, during which the Company linked continuation of oper- ations at the Madison Heights plant to obtaining com- petitive costs via economic concessions from the Union. (G.C. Exhs. 32, 47, and 54.) In fact, the Company an- nounced the contemplated closing of the Madison Heights plant in a letter to employees dated 13 Decem- ber 1983 where the Company advised employees that de- spite a record net income of $4.2 million the past years, inter alia. For the past few years the Elmira plant has lost money or been only marginally profitable. The Madison Heights plant has been marginally profita- ble for the past two years. Your plant, (Detroit) made a contribution to our record net income this past year. We are planning to close the Madison Heights plant in the near future. [G.C. Exh. 9.] 1. The Union's request for information On 14 December UAW International Representative John Mando wrote to Facet's president and chief operat- ing officer, James R. Malone, recounting the Company's repeated contention in negotiations that it needed take- aways (reductions in current wages and benefits) because of an alleged need to become competitive, and requesting information concerning the three plants in the bargaining unit to verify and assess the truth of the Company's FACET ENTERPRISES 163 ' claim so that the Union, in turn could "evaluate [its] cur- rent position and to be able to respond to the Company's proposals." The letter requested access to books, records, accounts, and supporting schedules, as well as income statements for the last 3 full years (Respondent's letter dated 13 December 1983, it should be recalled, told em- ployees the Elmira plant had lost money and had been only marginally profitable the past 4 years), Federal income tax returns for the same period, interim income statements and supporting schedules, cost and price in- formation for any intercompany transfers of products, and consolidate income statements where applicable. (G.C. Exh. 10.) Respondent sent the Union a reply on 19 December promising to consider the request and outline its position in future correspondence. (G.C. Exh. 11.) On 22 Decem- ber Facet Attorney Fishman, deeply involved in hands- on bargaining responsibilities on Respondent's behalf, wrote the Union two letters, one announcing another contemplated plant closing this time, the Detroit plant, and the other replying to the Union's request for finan- cial information, discussed more fully below. (The plant- closing letter is referred to in Union Counsel Page's letter to Fishman (G.C. Exh. 13 ), also dated 22 Decem- ber and not disputed in this proceeding. The second letter, again dated 22 December, is in the record as G.C. Exh. 12.) In the Respondent's reply letter (G.C. Exh. 12) regarding the financial information request, Respondent does not deny the stated reasons which prompted the Union's request, namely, Respondent's stated need to become competitive by achieving economic concessions from the Union lowering employees' wages and benefits in any new contract. 2. Respondent's obligation to provide the information Given the foregoing, including the Company 's oft-re- peated need to become competitive in its business, but also its reference to "losing money," "marginal profitabil- ity," its self-described "suffering" from competitive dis- advantages, and the "need" for wage reliefs and other economic recoveries, and its being again , as self-de- scribed, "extremely concerned" about those needs, to the point where plant survivals were linked to economic re- coveries (reductions in employees' wages and other bene- fits) followed by actual announcements of contemplated closing, I find that the Respondent was expressing an in- ability to afford to pay its employees the existing wages and benefits in support of its proposals seeking economic recoveries, thereby under law, assuming the obligation to disclose on the Union's request supporting information, rather than merely expressing an "unwillingness " to con- tinue current wage and benefit levels which would not impose any such duty . Nielson Lithographing Co., 279 NLRB 877, 880 (1986), citing Advertisers Mfg. Co., 275 NLRB 100 ( 1985); Harvstone Mfg. Corp., 272 NLRB 939 (1984), and cases cited therein; and Atlanta Hilton & Tower, 271 NLRB 1600 (1984). As stated by the judge in Harvstone, supra at 944: Against the background instruction of the Su- preme Court, presumably enunciated to be heeded, that "if ... an argument is important enough to present in the give and take of bargaining, it is im- portant enough to require some sort of proof of its accuracy" (NLRB v. Truitt Mfg. Co., 351 U.S 149, 152-153 (1956)), the Board has held that it is unnec- essary to use the talismanic word "poverty" in order to trigger the requirement of fair substantia- tion of a plea of economic necessity during collec- tive bargaining. Thus, in Cincinnati Cordage Co., 141 NLRB 72 (1963), the Board held that an em- ployer's resistance to a wage increase demand on the stated ground that it could not remain "com- petitive" with other employers in the industry, con- stituted a "poverty" plea since in effect the employ- er was contending that granting of the demands would "lead to impoverishment" (id. at 77), requir- ing the furnishing of supporting data. To the same effect, see Teleprompter Corp. Y. NLRB, 570 F.2d 4 (1st Cir. 1977); Stockton District Kidney Bean Grow- ers, 165 NLRB 223 (1967); Wheeling Pacific Co., 151 NLRB 1192, 1224-1225 (1965); NLRB v. Western Wirebound Box Co., 356 F.2d 88, 90-92 (9th Cir. 1966), enfg. 145 NLRB 1539, 1543-1545 (1964); Peerless Distributing Co., 144 NLRB 1510, 1514 (1963), enfd. 338 F.2d 1003 (5th Cir. 1964); Tennes- see Coal & Iron Div., 122 NLRB 1519 (1959). Respondents were thus under obligation to open their financial records to the Union to support their economic contentions and their failure to do so was inconsistent with their statutory duty to bargain in good faith. 3. Respondent's reply to the Union's request Fishman wrote the Union on 22 December in reply, offering to make available only a current financial state- ment or one showing profit and loss, with the opportuni- ty for verification by independent audit. Fishman de- scribed at length five conditions under which the "op- portunity" for such an audit to verify the current finan- cial statement would be governed. (1) restricting the ex- amination to the Company's office or its accountant's office; (2) the examination to be conducted by a CPA se- lected by the Union's accountant but approved by Re- spondent's accountant; (3) costs to be paid by the Union; (4) the accountant so designated to work directly with the Company's accountant the latter making available the "necessary" company records and other information per- tinent to such records and permitting the designated ac- countant to examine such records "to the extent neces- sary"; and finally (5) providing what the parties herein refer to as a "gag order." 4. The gag order in Respondent's proposal The gag order in Respondent's proposal stated that: 5. The designated accountant is to be subject to a gag order forbidding the disclosure of details and permitting him only to advise the Union as to the accuracy of the facts, to explain only factors that would make the Employer's reports misleading and 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to explain or substantiate his conclusions . [Emphasis added. G C. Exh. 12.] In the ensuing communications between the parties, a 22 December letter to Fishman from Union Counsel Page explained that more than a single current financial statement was needed and pointed out that the Union had requested access to financial information for the past 3 years, a request left unaddressed by Fishman's reply on 22 December to its 14 December request amounting to the reasonable inference on this record that he denied the request. Further, Page explained that the 3-year span in information was necessary in order to discover any unusual financial occurrences arbitrarily allocated to one fiscal year, but stated a willingness to go forward with a review of current financial statements rather than delay- ing the audit of past years' statements. Page accepted conditions one, two, and four and with a reservation on interpretation, paragraph 3, concerning division of ex- penses. He told Fishman that the Union was unable to agree to the gag order as it constituted in effect a prior restraint on its access to relevant information unknown to it until after a fully disclosed audit and further pre- vented the Union from ensuring that a thorough exami- nation would be made. (G.C. Exh. 13.) Page assured Fishman that no information given to the Union by the designated accountant would become public or be made available to any Facet compel itor. Fishman, without re- ferring to Page's asserted reasons in opposition refused an audit without the gag order (G C. Exh 15.) The Union pressed its request for access to the re- quested information without the gag order restriction in a letter from Page to Fishman on 4 January 1984, point- ing to the still greater urgency behind its request because of an impending decision under which it understood Re- spondent intended to close the Detroit plant by mid-Jan- uary and urging Respondent to consider using union ac- countant Bruce DeCastro to make the audit. Page in- formed Fishman that DeCastro had made an earlier audit in 1980 of the three plants in connection with a company effort to reduce pension costs. Thus not only could he "update" the records he had examined, but also, due to his familiarity with the recordkeepmg system, do the task with dispatch. In addition, Respondent would have the assurance of past confidentially honored by the Union on the occasion of that audit, as well as the Union's present assurances in that regard. The Union so proposed, while agreeing to consider an independent accountant if Re- spondent explained the need for one under the circum- stances described. Page further supported the Union's view of the unworkability of the gag order by stating, as another example, that the Union needed to know how pension plan costs, in the time since the agreement was reached, had been allocated among the three plants before it could evaluate the accuracy of the Respond- ent's assertions and claims that the Madison Heights and Elmira operations were marginally profitable (G.C. Exh. 160) On 5 January Fishman wrote Page confirming a telephone conversation-the latter described as occur- ring 4 January-during which Page assertedly declined the proposed audit (G.C. Exh. 18); no reply to Page's letter of 4 January, its concerns, or its offer , was submit- ted into the record, and, on 24 January 1984 Engel wrote Fishman noting that Fishman had ignored the UAW's position on the Respondent's limited, conditional offer of an audit on 22 December. In her letter (G.C Exh. 20), Engel stated she would expand further on why the limited disclosure procedure was defective and pre- vented the disclosure of information sufficient to allow meaningful bargaining. She included the fact that a "cur- rent statement" does not indicate whether it would be for a month or the most recently completed fiscal year; that a report over the last contract period was in order, especially since in that period, the effects of a settlement permitting the termination of the hourly person plan would have surfaced giving the Union information on the impact and sayings on the plants' performance; she pointed to the uncertainty over the gag order limitations placed on the designated accountant, who was unable, it appeared, to disclose any details on the operations to the Union's negotiators, and specified that a report from the accountant was necessary in order for the Union to bar- gain effectively-the report spelling out the performance of the three plants over the last 3 years analyzing the causes of any "red ink" and what part, if any, bargaining unit labor costs played in any losses. Further underscor- ing the need for such specifics Engel listed other numer- ous factors bearing on the need for details connected to how the Respondent assigned (economic) "burden fac- tors" among plants, and contrasting grim/rosy economic predictions by company representatives concerning the future financial strength of the Company. (G.C. Exh. 20.) Fishman called Engel 's letter both specious in content and tone, "as well as ridiculous" and offered a "compro- mise" in a letter on 3 February under which if, after the audit the designated accountant is desirous (note it is he or she who must harbor the desire) of further explaining his conclusions then the company accountant, the designated accountant, and DeCastro (the Union's accountant) will seek a mutually agreed-on resolution or, failing that, the parties will discuss it further. (G.C. Exh 23.) The "com- promise" was rejected by Engel on 13 February as not remedying the Union's concerns with the gag order as identified to Respondent on prior occasions over the pro- vision of information necessary for intelligent and mean- ingful bargaining. (G C Exh 29.) According to the undenied testimony of UAW Official Jim Ellis, the record shows that on numerous occasions in January 1984, in addition to those outlined above, the Union requested clarification or modification of the terms used in the gag order, only to be told by Fishman that the Union had his letter of 22 December (the letter setting forth Respondent's proposal on a limited audit procedure) Aside from a caustic and obviously sarcastic 24 January 1984 letter (G.C. Exh. 19) defining the literal definition of the terms-dictionary-like-in Fishman's gag order proposal, no elucidating helpful reply was ever given to the Union, nor did the compromise offer anything productive in the situation confronting the par- ties (G C Exh. 23.) FACET ENTERPRISES 5. Analysis of Respondent's offer Not unexpectedly in my view-given the tortoise-like movement in the parties' fact-starved negotiations and the Respondent's attention-grabbing announcements of impending fatalities of plant operations at Detroit and Madison Heights which resulted on the hardening of atti- tudes and positions-events simply overtook the parties in this case and the information requests receded from the forefront of bargaining as the strike wound down, ending in mid-February 1984. Whether or not Respondent's providing the requested information would have made any difference to the out- come here, where eventually both plant forces of em- ployees lost their employment when the plants reported- ly closed by August 1984, will never be known, because the offer of very limited information in a restricted pro- cedure burdened by Respondent with layers of expected- ly partisan interfacing-and thus time-consuming-delays led to rejection of the offer For that rejection, I find Re- spondent fully responsible. An employer, under an obligation to provide informa- tion, of course need not provide such information in the precise format or on the exact terms requested by the union, so long as it furnishes the sought-after data in a manner not so burdensome or time-consuming as to impede the process of bargaining. United Aircraft Corp, 192 NLRB 382, 389 (1971), citing Lasko Metal Product, Inc., 148 NLRB 976, 979 (1964). Moreover, an employer is free to limit its production, depending on access-gov- erning relevancy to the issues before the negotiating par- ties, in order to withhold or restrict disclosure to third parties of, for example, information as to the identifica- tion of its buyers and sellers, and officer's salaries. Yakima Frozen Food, 130 NLRB 1269 (1961); and Man- itowoc Co., 186 NLRB 994 (1970). As stated in American Stores Packing Co., supra, 277 NLRB at 1675, citing Tele- prompter Corp. v. NLRB, 570 F.2d 4 (1st Cir 1977). Moreover the court in Teleprompter stated that an employer's plea of a poverty or financial inability did not "trigger carte blanche discovering rights," but rather the union is entitled to what is "reason- ably necessary to permit a union to make a mean- ingful evaluation, from its members' perspective, of the claim of financial inability." Relying on Yakima, supra, and a claim of "confiden- tiality," however, Respondent asserts its proffered condi- tions on access and insistence thereon met its good-faith bargaining duties. The latter defense, "confidentially" for which Respondent offered no support is rejected on its face as specious, a conclusion even further warranted by the uncontroverted fact that Respondent in 1980 gave the Union free access to the same books and records the Union was willing to accept and examine-on 'an updat- ed basis for its purposes in 1983 and 1984, the present ne- gotiations without reference from any source in this record that the early confidences were betrayed-or that written assurances of confidentiality by the union attor- neys regarding their use of the information would be unkept. Absent any "valid overriding reason for non-dis- closure of this information" the defense is found merit- 165 less. Boise Cascade Corp, 279 NLRB 422, 431 fn. 26 (1986). The Respondent set numerous preconditions on the Union's access to any information which had to be met by Respondent's satisfaction before intelligent bargaining could proceed. Those conditions created by their very complexity a serious question whether such negotiations would ever ensue on the problems requiring enlighten- ment, let alone permit progress on the serious, rapidly developing plant closing and contract-type related issues requiring the parties' prompt attention. Respondent's re- quirement that the examination be conducted by a CPA selected by the Union but "approved" by Respondent is simply a thinly disguised play on words suggesting defer- ence to the Union's rights in such matter, but in actuality according Respondent a virtual power to veto such union selection until an accountant meeting the Respond- ent's approval, for unspecified reasons it should be noted, was nominated. The requirement by an employer that it retain the authority to select the designated accountant- which I find Respondent as a practical matter insisted on here-is inconsistent with good-faith bargaining under Board law, St. Joseph's Hospital, 269 NLRB 862 (1984), the theory being that someone other than the employees' selected collective-bargaining representative is being forced to represent the employees' interest without the latter's consent. It is axiomatic, and far from speculative given their demonstrated distrust on this record, that the ratification procedure also posed an obvious time-con- suming snare to the parties' efforts to negotiate The second defect, more serious, is Respondent's in- sistence on supplying the Union only with a "current" fi- nancial statement when it was Respondent who put into issue the contention in its 13 December 1983 letter to employees while negotiating with the Union that it had been losing money for the past 4 years at Elmira or had been only marginally profitable there, and Madison Heights had been only marginally profitable the past 2 years. Respondent's limitations in access to only a "cur- rent" statement therefore fell short of being an adequate disclosure of information reasonably necessary to the Union for intelligent bargaining regarding an issue Re- spondent itself raised in support of its proposal to reduce employee wages It follows from this, that the never-de- fined "opportunity" which Respondent's proposal al- lowed the Union for verification by an independent audit, being also restricted to the also not-defined "cur- rent statement"-whether a monthly, quarterly, or annual statement not being indicated by Respondent and thereby posing another time-consuming ambiguity-is likewise inadequate to bargaining needs. These deficien- cies regarding definitions noted above and further below, were real concerns raising questions as to how the audit would proceed, rather than speculative deficiencies as Union Counsel Page reminded Fishman, that more than a current statement on finances was needed and UAW Counsel Engel questioned Respondent counsel regarding such concerns only to be referred to the letter originally proposing the audit, without clarification. Fishman never responded to the Union's contentions that a statement limited to a 1-year period did not suffice. 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent's proposal contained an internal re- striction as well, permitting only a review by the desig- nated accountant as noted into a severely limited area, regarding accuracy of the fact, factors that would make the reports misleading, and to substantiate his conclu- sions. This limited inquiry, as noted by Respondent's own witness accountant, Peter H. Burgher, would not show inventory adjustments, or allocation charges, or as UAW accountant Larry Mishel testified, the statement might show-and the audit verify-the fact of losses, but not the why and how the Union might respond with proposals based on the operative facts. For example, there could be nonrecurring losses on the current state- ments not fairly calling for Respondent's economic re- coveries, the allocation of debt interest charges among all of Respondent's plants would be germane to the ques- tion of whether the "loss" at a single plant warranted employee concessions, the allocation of bargaining unit type costs would also be germane to proposed bargaining unit benefit reductions, and the tax returns requested by the Union would be necessary to determine depreciation allocation, whether unusual tar losses had occurred, and the consistency in recordkeeping systems. It is readily apparent that the gag on the designated accountant, while under the Respondent's proposal al- lowing an explanation or substantiation of his conclusions regarding the accuracy of the figures shown, or plainly "misleading" in nature, would not permit the Union to discuss the details behind his conclusions and analyze for itself the economic inability of the plants to determine whether a concession on wages would be worthwhile as helpful to shoring up the Respondent's financial condi- tion or futile if the facts showed otherwise, or indeed whether any concession at all was warranted. Labor costs, for example, have been held germane and there- fore discloseable. NLRB v. Western Wirebound Box Co., 356 F.2d 88 (9th Cir. 1966). In short much other relevant information tied to the issues raised by Respondent lay outside the scope of inquiry allowed by Respondent's proposal, which did not permit, under the gag as further example, the Union to bargain intelligently about the rel- ative survivability and economic condition or competi- tiveness of the three plants. In her letter of 24 January 1984 to Fishman (G.C. Exh. 20) Union Counsel Engel explained why the inhibited accountant would be of no use to the Union, which needed a report on his findings spelling out the performance of the facility over the last 3 years and analyzing the cause of any red ink reported by the plants, including what part if any labor costs played in any losses. In short, there was a tightly limited restriction on what the accountant could discuss with the Union which was, as noted, limited to a narrow scope of inquiry to begin with. Respondent also rejected the Union's substantially re- duced request for information limited only to a look at the same books Respondent allowed the Union to exam- ine in 1980, updated to 1983, without advancing any reason for such refusal, then or at this hearing, which in my view left the Union to feel its way in the dark as best it could to represent employees in contract negotiations, and placed a blind man's bluff-like burden on the Union without the light from the requested information. I find its entire course of conduct regarding the Union's re- quest for financial information, which Respondent con- tinued to withhold, sharply inconsistent with its good- faith bargaining obligations under the Act and therefore a violation of Section 8(a)(5) of the Act. Metlox Mfg. Co. v. NLRB, 378 F.2d 728 (9th Cir. 1967), cert. denied 389 U S. 1037 (1968); Washington Star Co., 273 NLRB 391 (1984); Mashkin Freight Line, 272 NLRB 427 (1984). Re- spondent's reliance on the Board's decision in Yakima Frozen Foods, supra, is without persuasive force as there the respondent employer offered to submit its books and records to a full audit by a CPA chosen by the union, the only restrictions being (1) that the CPA not be in the Union's regular employ; (2) information on the identity of seller and purchaser not be taken from the office; and (3) that any questions be directed to the employer's ac- countant. There were no limits imposed on the scope of the union's audit in that case, nor, the major distinguish- ing characteristic, was there any burdensome restriction on what the designated accountant could communicate to the union, unlike in the present case where not only was such a burden imposed but also a host of real bar- riers preventing the Union from access to the res gestae- like facts behind Respondent's inability to pay conten- tion, unfairly preventing the Union from bargaining intel- ligently. 6. The Union's request for information concerning the transfer of jobs and machinery from the Detroit plant An overview is helpful here. The parties began negotia- tions in late August and early September 1983 for a new master contract covering the three plants at Madison Heights, Detroit, and Elmira, New York. The strike ensued in early November and ended in February 1985 at which time striking employees offered to return to work. There is some brief reference in testimony, but no finding that by August 1984, the Detroit plant was closed and, by 30 September 1984, the Madison Heights plant, shut down in July, had also ceased operations. 7. Respondent's announcement on 13 December 1983 During the parties' negotiations over a host of unre- solved matters in the above period, including the issue of sinkers discharged for picket line misconduct, where I find Respondent unlawfully failed and refused to provide the Union with requested information, the Employer in- formed its employees on 13 December 1983 in a written memorandum that, inter alia, it must begin considering alternatives regarding the Detroit plant, and that due to a customer's request the "flame arrestor manufacturing line" had been moved out of the Detroit plant. Respond- ent also stated it might be forced to move out other lines of Detroit plant machinery as well. (G.C. Exh. 9) By letter dated 22 December Respondent's counsel also in- formed the Union of the contemplated closing and relo- cation of the fuel devices of the Detroit plant operation. According to the undenied testimony of witness Sally Dorman, whose account in this respect is credited, E J. Mullane, Detroit plant director of industrial relations in- FACET ENTERPRISES formed Dorman, Vernette Ward, and Jerome McKenny on 24 November 1983, while the three were picketing, that the Detroit plant was moving out. Respondent does not deny either the communications or the fact that De- troit plant machinery was being shipped out in this period, and subsequent communications further confirm the fact. 8. Union's request for information By letter dated 22 December 1983, Union Counsel Page wrote Respondent Counsel Fishman requesting in- formation as follows: "What work has been moved out of the Detroit plant within the last year and where has it moved to?" (G.C. Exh. 13, par. 10.) During master con- tract negotiations in early January 1984 UAW Assistant Vice President Jim Ellis testified that during the discus- sions of the Detroit plant that the Union again requested, information on what work had been moved out from the Detroit plant, Fishman once replying that the matter would be discussed in Detroit. Fishman wrote Union Counsel Engel on 25 January 1984 referring to a request by Engel during 19 January negotiations for information regarding the type of work permanently or temporarily removed and the identifica- tion of the location to which the work was recovered, from the Detroit plant. The response was without nour- ishing facts, stating only that "no work has been perma- nently removed," "Facet has temporarily removed work," and that Fishman saw no right in the UAW to information regarding the temporarily removed work. (G.C. Exh. 21.) It is instructive to note that in this very period as will be discussed further, Respondent was making separate Detroit plant contract proposals and that the Detroit plant operations were highly significant in the parties' ongoing negotiations toward a master agreement. In fact the parties here stipulated that one of the actual bargaining proposals on the table, placed there by the Union, was that, inter alia, the Detroit plant work not be relocated during the term of any new agreement (Tr. 735). In a 28 January 1984 letter to Fishman, Union Counsel Page referred to still another Detroit plant in- formation request in an earlier letter on 13 January and (in the 28 January letter) reminded Fishman about some of the Union's "outstanding requests for information which you have not yet answered," the number one item being: (1) As to the machinery and equipment that have been removed from the Detroit plant-where is it now and is it being used for production purposes and where is it going to be eventually relocated? [G.C. Exh. 22.] The information request arose again at master agree- ment level negotiations on 6 and 7 February 1984 ac- cording to Ellis when Engel asked Fishman for a re- sponse to the union request, Fishman replying he did not know. Engel asked that the work be identified , and for information regarding where it had been sent, Fishman also replying repeatedly that the Company had a right to move some work out from Detroit and had done so, but providing no details. 167 As late as 27 February 1984 Respondent was still on notice that the Union was pursuing its request for the in- formation via service of a charge filed by the Union with the Board's Reqional Office that date alleging that since on or about 1 March 1983 Respondent had violated the Act by, inter alia, failing and refusing to furnish informa- tion regarding, "(a) temporary removal or subcontracting of work from the Detroit plant." (G.C. Exh. 1(i) ) The record evidence shows that the Respondent re- fused to provide the requested information at any time, although in effect admitting to its possession as shown above. 9. Analysis The law is clear and well established that an employer has the duty to provide the union with information rele- vant and reasonably necessary. to the union's representa- tional or bargaining responsibilities, including contract negotiations, on request. Probable or even potential rel- evancy is all that is required. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Acme Industrial Co., 385 U.S. 432 (1967); Curtiss-Wright Corp., 145 NLRB 152 (1963), enfd. 347 F.2d 61 (3d Cir. 1965); J. I. Case Co., v. NLRB, 253 F.2d 149 (7th Cir. 1958); and Western Massachusetts Elec- tric Co., 228 NLRB 607 (1977). The Board has also held that where the requested information is about terms and conditions of employment of bargaining unit personnel, and is therefore presumptively relevant to the union's representational obligations, the union need not demon- strate its exact relevance where the company has not re- butted that presumption. Chicago Metallic Corp., 275 NLRB 871 (1985); Pfizer, Inc., 268 NLRB 916, 918 (1984); and Postal Service, 276 NLRB 1282, 1285 (1985). Although matters not lying directly within the core of bargaining unit employees' working conditions require a demonstration that there is the required relevance, the standard is the same liberal discovery-type standard in all cases. United Graphics, 281 NLRB 463, 465 (1986), citing Loral Electronic Systems, 253 NLRB 851, 853 (1980); and Curtiss-Wright Corp., supra. The information requested here by the Union, as ex- plained to Respondent numerous times, was to enable the Union to carry out its representational duty to "bargain- ing intelligently" on behalf of the bargaining unit em- ployees during the course of bargaining on a wide range of topics including the status of the Detroit plant, where bargaining unit employees' work-employee-assigned plant machinery and jobs were leaving the plant under uncertain circumstances and conflicting reports from Re- spondent, whose representatives first informed employees the plant was closing and some machinery had already been sent out in December 1983, then later informed the Union no work had been sent out permanently, only "temporarily," in January 1984 followed subsequently by a complete cessation in Detroit plant operations in August after employees had returned to work in Febru- ary, much of such communication and uncertainty aris- ing in the course of contract negotiations as noted above and bringing the question even more to the forefront in negotiations. 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Even without the perplexing confusion handicapping intelligent bargaining sought by the Union on this subject at negotiations, a needless impediment to any fair chance for bargaining which would be removed by the informa- tion's submission clarifying the matter, the further clear relevancy of the information regarding machinery, and thus work, removal from Detroit to the Union's perform- ance of its statutory duties is readily apparent. Section 9(a) of the Act provides in pertinent part, "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes , shall be the ex- clusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other condi- tions of employment " (Emphasis added.) Bargaining unit work is at the heart of the employee representative em- ployer collective-bargaining relationship , and without machinery, and the connected jobs there is no "condition of employment" for employees whatsoever. It is self-evi- dent that the matters about which the Union sought in- formation fell well within the above statutory definitions. The need to take intelligent steps to preserve the work of unit employees, an area of union representational obli- gations about which the requested information clearly re- lates, has deeply imbedded roots in the labor relations history of collective bargaining in this Nation. As has been noted: In seeking this information , the Union was com- plying with its statutory obligation to represent its employees, so as to preserve the work that they re- garded as their own. This concept of preserving work that employees regard as their own, has been exhibited in our industrial society since the origin of the industrial revolution, when cottage workers broke up factory machines in protest of losing work, down to the complex contractual and juris- dictional disputes of today. Board cases involving a union's effort to preserve work for its represented employees are legion. [International Harvester Co., 241 NLRB 600, 604 (1979), where the Respondent was ordered to produce the requested information.] The Board has in many cases held that where, as here, the employees' bargaining agent has received information that the employer is removing unit work, or transferring it elsewhere, by subcontracting or otherwise, that the Union is entitled on request to information bearing on that issue, "so that the Union may properly represent the unit employees." Washington Star Co., 273 NLRB at 396 citing Westwood Import Co., 251 NLRB 1213 (1980), and Air Express International Corp., 245 NLRB 478 (1979). Respondent's view that it lawfully transferred or subcon- tracted out the work temporarily during the strike, and thus under Board law had no duty to disclose informa- tion concerning such action is a defense not factually es- tablished in the record and assumes not only that such information would be relevant to bargaining on that sub- ject alone but also assumes facts to which it alone was privy, argues from the point of a self-made conclusion, and unilaterally precludes the Union from performing its duty to assess the facts and their effects on unit employ- ees so as to engage in intelligent bargaining regarding the Detroit plant employees' then current and future condi- tions of employment. Furthermore, such a view puts the burden on the Union to establish that Respondent's ac- tions were unlawful before it can be entitled to the infor- mation , a requirement at odds with the law . For, as stated by the Board, it is not necessary to find here that "the information sought is certainly relevant or clearly dispositive of the basic . . . issues between the parties [t]he fact that the information is of probable or potential relevance is sufficient." Westinghouse Electric Corp., 239 NLRB 106, 107 (1978). Respondent's view is therefore rejected. See Dane County Dairy, 273 NLRB 1711, 1712 (1985) (facts in defense not established); Sonat Marine, 279 NLRB 100, 106 (1986) (respondent reasoning in its defense from its own conclusion , and "Nowhere does the Act require that the Union must accept without any veri- fication an employer claim [emphasis added] that bar- gaining unit employees are now out of the bargaining unit," citing Cherokee Culvert Co., 262 NLRB 917 (1982); Ground Breakers, 280 NLRB 146, 148 (1985), that the employer's view on the merits of an underlying dispute, even if probably correct would not be material on the question of whether the requested information should be furnished so "the Union can perform its function of rep- resenting employees" and Indiana Cabinet Co., 275 NLRB 1209, 1213 (1985), in which employer merely re- sponded to Union's request that "there have been no in- tervening changes." It is clear from the foregoing that the requested infor- mation is presumptively relevant to the performance of the Union's representational duties and I so find. Even assuming for the sake of argument that the subject matter lies further removed from the core in employment condi- tions under a stricter review of the meaning and defini- tion of actual wages, hours, and other conditions of em- ployment as adopted so that a demonstration of potential relevancy is required, such is established here. Thus the information is relevant to contract negotiations regarding the Detroit plant highlighted above, the question of work loss incurred by unit employees while on strike and on return to work at the strike's conclusion, the effects of the loss of work on the Detroit employees, whether the Union would seek to retain article 19 in the parties' collective-bargaining agreement for many years , cover- ing movement of department or plants and according transfer rights to employees affected by movement of a department "or portion thereof,"2 related grievance 2 Art XIX provides in pertinent part as follows Article XIX Movement of Department or Plants (108) In the event the Company elects to move a department , or major portion thereof, or plant covered by this Agreement to another plant of the Company also covered by this Agreement , employees who worked in such departments or plant who are out of work as a result of the transfer, may it so desire, within thirty (30) days elect to be trans- ferred to the new plant and carry their ranking seniority to the new plant (109) Employees who so elect to be transferred to the new plant will receive the corresponding wage rate of the job classification to which they are assigned at the new plant for fifteen ( 15) days after which they will receive the top rate of such classification If such Continued FACET ENTERPRISES filing, overall negotiating goals given the interconnected bargaining over the three-plant unit, and filing proceed- ings with the Board, a decision requiring knowledge whether the machinery was, in fact, permanently moved out as part of what then was a partial closing in the three-plant unit or rather was merely temporarily re- moved. For all these reasons, the information sought by the Union "was important in the performance of its rep- resentation duties" for it would be in a position, with the facts, to negotiate or take other action on behalf of unit employees it was charged to represent. Sonat Marine, supra at 106. Far from being of speculative value, or based on surmise, there is shown a real, urgent necessity in the Union's need for the information concerning the actual admitted movement of machinery and loss of work from the -Detroit plant impacting on unit employ- ees there if the Union was to be able to intelligently assess the situation- and bargain with Respondent during the concurrent ongoing negotiations. Compare Southern Nevada Builders Assn., 274 NLRB 350 (1985). Accord- ingly, on the basis of the foregoing analysis and authori- ties cited, I conclude that Respondent unlawfully failed and refused to furnish the requested information thereby violating Section 8(a)(5) of the Act During negotiations on 9 or 10 January 1984 in Horse- heads, New York, Respondent expressed to union repre- sentatives its intentions to discipline employees for vio- lence on the picket line during the strike begun in early November 1983. Union counsel requested information on the number of employees involved, their identification and plant location, but was told by Respondent's vice president of industrial relations, Robert Childress-clear- ly an agent for Respondent-that it could not provide such information because the Company had no idea of the number or names. Respondent counsel, also present and active at, negotiations on Facet's behalf, informed the Union that the matter was "still under investigation." By letter dated 28 January 1984, union counsel again re- quested the information but was told in a reply letter of 3 February-by Attorney Fishman merely that the Com- pany would not tolerate misconduct. (G.C. Exh. 24.) There is further undenied testimony by administrative as- sistant to Union Vice President Odessa Komar, Jim Ellis, that during negotiations on 8 February 1984 in New York, Union Counsel Betsy Engel specifically requested information from Respondent about how many employ- ees were involved in the misconduct, what the charges were, and possible penalties under consideration. Fish- employees receive the top rate for the same job classification to which they are assigned at the new plant without a breaking-in period, they shall receive the top rate of pay for such classification at the new location (110) An employee whose seniority is transferred between plants pursuant to Paragraph (108) of this Agreement will be paid a Moving Allowance provided that a The plant to which the employee is to be relocated is at least fifty (50) miles from the plant for which his seniority was trans- ferred, and b As a result of such relocation , he changes his permanent resi- dence, and c He makes application within six (6) months after assuming his new permanent residence in the area of this plant to which he was relocated in accordance with the procedures established by the Company 169 man responded "he had no way of knowing." Arriving later in the evening Union Counsel Leonard Page also requested similar information from Respondent's negotia- tors but was merely told "they were still studying the tapes and investigating " Union Staff Representative Walter Waller testified to a Detroit plant meeting attended by Waller, the industrial relations director at the Detroit plant E. J. Mullane- clearly an agent for Respondent-William Popadynec production manager-also on this record clearly a Re- spondent representative and agent-and Local Union President Tony Rahill in February, about the t n>,g_ strik- ing employees were returning to work. Waller recalled asking the company representatives, in the course of sev- eral discussions over how the unconditional return of former strikers would be handled and who the employ- ees were he had heard were accused of picket line mis- conduct. He says Mullane responded that the Company did have some employees under investigation but that when Waller asked how many Mullane said, "I'm not going to tell you how many, that's our business." When Waller asked whether Mullane could give him their names, Mullane told him he would not give him the names until after the Company notified them. Although a dispute arose at this hearing over the question whether Waller had made another request for the same informa- tion in February, Employer Representative Popadynec was not called on to deny Waller's testimony regarding the above, and Mullane was not brought forth to testify at all. Waller's account is credited. Larry Smith, then an International union representa- tive, testified that during a meeting with company repre- sentatives on 1 March 1984 he asked Facet's chief spoke- man at local negotiations for the Madison Heights plant, Donald Houser, for the names of employees involved in the Company's picket line misconduct investigation but was told by Houser only that it was under investigation. Company co-counsel Frank Mamat told Smith the names of three employees under "serious investigation," indicat- ing there were others as well: Harry Miller, Joe Sciam- manico, and Harold Hall. When Smith asked about the circumstances, he testified he was told "they" did not want to talk about it any further, and when Smith asked when they would have the information he was told, "as soon as they could." On 15 or 19 March 1984 at another such meeting, Smith pressed the Union's request for in- formation, asking if there was anything else he could learn . Houser merely told him the' names of two employ- ees already sent telegrams of recall, and three sent tele- grams of discharge "for misconduct on the picket line and elsewhere." Smith again asked for "some particulars on it" and was told by Houser he hoped to have infor- mation within the next week or so. The General Counsel also established by Smith's undenied testimony concern- ing this meeting that Houser, referring to the strikers, some of whom were still under investigation who would be discharged (and had been discharged), said that he would waive time limits (in the parties' contract-estab- lished grievance procedures) on the Union's filing griev- ances over the firings, thereby establishing such griev- ances were fairly contemplated by the parties and further 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the relevancy of the requested information was self- evident under Board law since related to possible griev- ance and arbitration proceedings. E. W. Buschman Co., 277 NLRB 189, 191 (1985). Finally, on 2 April 1984 when Local Union President Butler asked Houser if there was any further information on employees discharged for picket line misconduct beyond telegrams discharging them without prior knowl- edge of the Union, Houser replied, "we would see what we wanted at the NLRB hearing." Counsel for the General Counsel having established the Union's repeated requests, beginning in early January 1984 and continuing into April 1984 for Respondent's in- formation on picket line misconduct, Respondent indicat- ed it intended to act by disciplining employees, informa- tion clearly necessary and relevant to the Union's repre- sentational duties on behalf of employees, including filing grievances over these discharges under established griev- ance procedures noted above the burden fell on Re- spondent to justify its failure and refusal to provide the information as established above. NLRB v. Acme Indus- trial Co., 385 U.S. 432 (1967); Pfizer, Inc., 268 NLRB 916 ( 1984); Boeing Co., 182 NLRB 421 (1970). Yet Respondent called none of its own representatives or officials to explain under oath its position in this matter, relying instead on purported "admissions" by union witnesses that in some of the numerous instances of refusals to provide the information, company officials had "explained" that the matter was still "under investi- gation," or "being reviewed," or that "no final decision" had been made, none of which reasons, on their face, jus- tify the withholding of information Respondent may have had at the time the Union made its numerous re- quests. In this connection, the suggestion comes through Respondent's contention on brief that it provided the Union with "the information" once Respondent had "it," that Respondent simply did not possess the information at the times it was requested by the Union. Also implicit in this argument on brief is that Respondent did produce the requested information once it was available. The record fails to support either assertion. Several witnesses, including Plant Manager Sheehan, Director of Manufacturing Popadynec, Supervisor Dur- lock, Customer Service Manager Phillippi, and Director of Quality Control John L. Smith, Respondent's officials, testified that they reported eyewitness accounts of picket line misconduct in writing and orally to Respondent's Director of Industrial Relations E. J. Mullane as early as mid-January 1984. Indeed, there is additional testimony that even as early as 5 December 1983, the assault on guard Buchanan's supervisor, and other picket line inci- dents on 3, 5, 12, 15, and 16 January had been observed, recorded, and reported. In addition, there are reports concerning picket line occurrences recorded by guard Oblinger dated 5 and 6 December 1983, and employee Zelda Greer testified she reported a 14 January 1984 in- cident to Mullane. Yet as late as 2 April, Respondent was informing union representatives it would still not furnish the particulars, on any details concerning this matter, advising the Union it would get what it wanted at an NLRB hearing where, as it turned out and is noted above, only the facts concerning two misconduct cases were described in the course of witness examination in the fall of 1985 , over 10 months since the Union 's first request of numerous inquiries seeking the information. Such limited disclosure as did occur was pursuant to this litigation, rather than the Union 's fruitless requests. I find that Respondent failed and refused to provide the Union with the requested information concerning the picket line misconduct at all times material including from 9 Janu- ary 1984 through April and May and onward thereby violating Section 8 (a(5) of the Act. NLRB v. Acme In- dustrial Co., supra; Pfizer, supra; Boeing Co., supra. More- over, whatever little it did get was untimely communi- cated . Postal Service, 276 NLRB at 1288 (1985). Respondent on brief points to the testimony of union witnesses Tony Rahill and Tom Butler, presidents re- spectively of the Detroit and Madison Heights locals, purportedly supporting the defense that Respondent did provide the requested information , yet their testimony reveals only, in Butler's testimony, that Company Repre- sentative Houser gave Butler notification concerning the discharge of three employees on 2 April and that Butler had already seen the telegrams discharging them as of 17 March . Further Butler testified he had no prior knowl- edge concerning those employees being discharged, and that when he asked for further details underlying the action such as "films, written documentation, etc." Houser refused to make any available, telling him to await the NLRB hearings. Yet it was undenied that as early as 8 February 1984 Respondent had informed Union Counsel Page it was still studying the tapes (films) taken of the picket line conduct, which Respondent, under Board law was required to produce on request. Square D Electric Co., 266 NLRB 795, 797 ( 1983). Under cross-examination by Respondent later , Butler testified further that they (Respondent) advised him they would be responding to his inquiry independently of an NLRB hearing but testified without contradiction that Respond- ent never did so. Regarding Rahill, his testimony under cross-examination revealed that once the Union had learned of the letters identifying those persons who were receiving discipline for strike misconduct , Local 104 did not ask for further information. It was not the Union's duty to repeat the often repeated specific request for the names, locations, and underlying circumstances including the tapes reasonably necessary to evaluate the options open to it to represent employees in these matters still again simply because some small part of the request, after months of delay , was provided in the form of tele- grams and later letters concerning Respondent's dis- charging the employees on 2 April Rather, it was for Respondent to prove in this hearing that the numerous specific requests for information made by union counsel and union representatives in writing and orally , identify- ing there requested information specifically-which I find the Respondent had in its possession-was in fact provided to the Union by Respondent, and this cited lim- ited testimony barren or elucidating details is insufficient to establish that fact . Nor did any Respondent witness take the stand to deny that the Respondent had refused to furnish the information as alleged in the complaint. In the same vein I note further that Union Representative FACET ENTERPRISES Waller testified he received at some date unspecified in the record information concerning the identity of about 10 employees the Respondent had decided to discipline, and while Respondent was in a position to elucidate the record as to the date and details, it did not do so. Waller also recalled that he made a second request on 29 Febru- ary 1984 for Respondent to tell him the names and number of employees accused of picket line misconduct but was told by Mullane-who did not testify-he would be told after the employees were notified. In short, the references on brief by Respondent simply do not estab- lish through union ' witness cross-examination that Re- spondent supplied the requested information at times rel- evant or substantially to the extent requested or required by law calling for timely production of all the requested information deemed relevant. Washington Hospital Center, 270 NLRB 396 (1984). Nor is the baldly stated assertion on brief by Respondent's counsel that Respondent pro- vided the Union "and the GC" misconduct information sufficient enough to pare down the alleged discriminatees from 15 to only the 2 "tried before this Court" anywhere supported by the record evidence. Nor would such re- sponse, even if proven, by way of resolving alleged vio- lations of Section 8(a)(3) of the Act being litigated in the formal NLRB hearing, control the determination of whether Respondent had violated its collective-bargain- ing duty to comply with Union's requests for information earlier under Section 8(a)(5) of the Act, the present issue being addressed. By way of further justifying its conduct refusing the Union's request for, inter alia, the identification of those under investigation or to be charged with picket line misconduct, the number of them involved, their plant lo- cation, the penalities being contemplated, the tapes of picket line conduct, and nature of the charges, Respond- ent on brief cites Board cases holding that the produc- tion of employee witness statements in the context of im- minent arbitration proceedings is not required due to possible intimidation of witnesses in such proceedings, and further that the production of whatever "undis- closed" relevant evidence in the hands of the possessor is too broad a discovery standard hence request for such are not within the scope of information production re- sponsibilities under the Act as such requests are insuffi- cient to oppose a respondent of the information sought. See Anheuser Busch, Inc., 237 NLRB 982 (1978); and Ma- chinists Lodge 78, 224 NLRB 111 (1976). Neither princi- ple has any application here where the Union requested specifically identified information relevant to its function and responsibility to represent employees in a situation fraught with grave consequences for their employment free of any request or reference going to employee wit- ness statements and seeking only germane information which the record discloses as described above, was in the Respondent's possession and for the most part was derived from its own representatives, supervisors, and agents (rather than employees) in December 1983 and January 1984. NLRB v. Acme Industrial Co., 'supra, and Square D Electric Co., supra at 797. E. Complaint Paragraph 12 171 The General Counsel here contends that Respondent refused to bargain in good faith with the Union because Respondent engaged in a course of conduct during the parties' negotiations aimed at splitting apart the estab- lished appropriate bargaining unit by unlawfully inducing Detroit employees and the Union to negotiate and accept a separate contract for Detroit plant employees only, ex- cluding unit employees at Madison Heights and Elmira, New York plants, without the Union's consent. Background The background evidence shows that the parties nego- tiate numerous employment matters, such as wages, pen- sions, insurance, vacations, SUB, paid absences, COLA, and grievance procedure details for all three plants in un- itwide bargaining called "master-agreement" negotia- tions, the settled understanding being that the three plants are, in general, treated as one unit, though no gen- eral wage schedule is published and there can be minor variances, such as an incentive bonus at one plant alone. The parties also engage in "local" plant or supplementa- ry bargaining over such subjects as starting and quitting times, work rules, job classification structures, wages for a particular position, job bidding, and the like. The over- riding characteristic in all the bargaining that goes on, it is clear, is the unified three plant structured bargaining unit on which the parties contract negotiations have long been based over several years, a structure fortified by the requirement that votes of all plants be pooled to ratify a new contract. F. Respondent's 1983 Contract Proposals In their entire history of bargaining over successive master contracts the record shows no suggestion that the multiplant unit approach had ever been disturbed. How- ever, on 15 November 1983 in an unprecedented action, Respondent for the first time presented a separately drafted contract proposal covering numerous master level contract subjects for the Detroit plant alone. (G.C. Exh. 6.) The proposal covered wages, COLA, insurance, SUB, pensions, holidays, paid absences, vacations , tuition assistance, contract duration, production rates, and letters of agreement. Respondent also presented a wide-ranging set of separate proposals for Madison Heights and Elmira combined, excluding any mention of Detroit in another draft. (G C. Exh 7.) This Elmira-Madison proposal, unlike Detroit's, called for different general wage in- creases, elimination of COLA, new insurance benefits unlike the Detroit proposal, differences in holiday bene- fits, scheduled the discontinuance of paid absences while Detroit's was merely reduced, and called for elimination of SUB entirely. 1. Union rejection After consideration of the separate documents the Union accused the company negotiators of trying to split apart the bargaining unit and rejected such approach, in- sisting that a single agreement covering the three plants be negotiated. Respondent witness Robert Childress testi- 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fled the Union never "complained" of any " splitting" effort yet later in the same day general counsel witness Ellis, UAW vice president , testified he informed Chil- dress and Company Director of Human Resources Paul Dick that the Union would not split up the master con- tract (unit), and accused the Company of putting the Union in a "trick bag" by giving the Union two separate proposals all the while knowing the Union would not split off the "national agreement ." Ellis testified further that Childress said he realized that would be the Union's position and so informed Respondent President Malone prior to negotiations-and that Dick confirmed the fore- going Neither Childress nor Dick denied the foregoing and Malone did not testify . I further credit Ellis over Childress that the Union objected to the splitting effect inherent in Respondent 's offer-both as to its separately documented format and its substantially contrasting terms vis-a-vis master level bargaining subjects between the Detroit offer and the offer at the other at the other plants-at the bargaining table, for I believe it would be unnecessary for the Union to take the position it was for a master agreement without the Company's level of de- manded recoveries and then the parties could look at some local recoveries "instead"-as described by Chil- dress himself-unless it was responding with an objection to the separate master level proposals put on the table by Respondent . Furthermore, as shall be noted , the Union repeated its objections on later occasions described below. 2. Respondent's direct contact with Detroit employees Unheeding the Union's objections to divided-unit bar- gaining, Respondent tried to induce employees directly to accept a separate Detroit contract on 24 November 1983, when Detroit Plant Director of Industrial Rela- tions Eugene J. Mullane approached picketing employees outside the plant inquiring why they had not returned to work in view of the good contract which had been of- fered Detroit employees . Employee Sally Dorman, whose testimony in this respect was not contradicted, stated that she told Mullane the employees could not accept the separate contract as it had not been offered to "our sister companies" (plants) and "before we had a master contract and there was three plants that always had that master contract and the company, Facet, only offered the contract to the Detroit plant ." Mullane told the employees the Madison plant was moving out and that Elmira made different products than the Detroit plant and that the employees should return to work; whereon fellow picket Jerome Mckenny told Mullane he should be negotiating with the Union and, "that he know [sic] that we would not accept the contract that did not include the other two [plants]." Mullane then left Dorman , Mckenny, and a third picket Vernette Ward, whom he had been addressing as a group , and headed toward another two pickets . Mullane did not testify On 2 December 1983, Respondent mailed letters con- taining copies of the Detroit plant only contract proposal to about 140 employees, of that plant alone, not commu- nicating with the other two plant forces in the unit com- prising better than 500 employees overall Without tell- ing employees why the Union would not submit the offer to the Detroit force , viz that the offer was unad- dressed to Madison and Elmira plant employees, Re- spondent urged employees to give the union-rejected proposal serious consideration, adverted to general job losses for all, the need to continue product and services [a hint striking Detroit employees would be replaced?] and "invited" employees only at the Detroit plant to return to work "now under the terms of the 15 Novem- ber offer." (Emphasis added ) Respondent's urgently worded and toned entreatment plainly envisaged and contemplated a dismemberment of the Detroit plant from the multiplant unit because the Respondent 's appeal, if accepted by Detroit plant employees returning to work "now" under the separate Detroit plant contract, would break the appropriate bargaining unit apart , leaving Madison and Elmira employees to fend for themselves in a fragmented unit reduced by one-third its size for all practical purposes , substantially weakened or diluted in bargaining strength . There was simply no provision in Respondent's 2 December letter regarding the status of other unit employees at Madison and Elmira and the impact on them were Respondent 's limited invitation to Detroit employees accepted (G.C. Exh. 8.) 3. Respondent's further contacts with picketing employees Mullane again urged Detroit employees to accept Re- spondent's Detroit-only offer on 4 December, advising Mary Lewis with another striking employee present, Do- lores Carter, that she should come back to work since "you have a good contract ," Lewis testifying she under- stood Mullane was referring to the Detroit only proposal dated 15 November. Not as yet successful in the efforts to isolate Detroit employees from the unit , Respondent adopted new tech- niques and displayed a sharper strategy on 5 December when high company official Facet President and Chief Executive Officer James R. Malone, together with De- troit Plant Manager T. J. Westfall, spoke further with striking Detroit employees asembly line worker Ilah Drake, job setter Jack Muhaw , and machine shop job setter Loyd Bastuba present at the picket line outside the Detroit plant , urging them to accept Respondent's De- troit plant contract offer and return to work. 4. Facet President Malone 's appeal Employee Ilah Drake testified that Malone drew em- ployees' attention to Respondent 's earlier letter and con- tract offer, advising employees not to get too upset or concerned over the excluded Elmira plant employees offer because, "they (Elmira employees) were not going to be thinking of us [the Detroit employees]." Drake stated Malone said he wanted "us" to come back to work-that Elmira employees could start drawing com- pensation after so many weeks asking pointedly whether Detroit employees thought the Elmira employees were going to offer to share any of their compensation with Detroit employees . Malone then advised employees, "So think about yourselves . . . not about the Union," con- cluding remarks at this point with the assertion, "the FACET ENTERPRISES Union wasn't going to be too worried about [it] because the union officials were going to be getting paid regard- less of whether Detroit employees got any money or not." Loyd Bastuba testified that Malone urged the Detroit employees to return to work, picturing the 15 November Detroit plant contract as a fair one. Bastuba told him it was not fair, "as it didn't give the other plants the same opportunity and we were all together." Malone respond- ed that that should not matter as the Madison plant was moving-would be there no longer-and he was in the process of replacing workers in Elmira and, in the long run, Detroit employees would be alone anyway so "we might as well accept [the contract] now and return to work." Explaining under cross-examination by Respond- ent counsel that he remembered the conversation because it was important when he talked to someone that high up in the Company, Bastuba recalled that Company Presi- dent Malone told employees if they "didn't return to work they'd be replaced and if that didn't work he'd move the plant or close." Employee Jack Muhaw testi- fied that Malone told employees they should "get to members and our local to get us to go back to work, he said we were getting . . . it was going to be separate contracts; but he wasn't breaking up the master" adding that Madison would be gone in 6 months and Elmira's future was uncertain. In further remarks to the employees later the same day, Malone told him to persuade union representatives at the Detroit local union to agree on having a vote to return to work. Drake further recalls that Plant Manager Westfall joined Malone in urging employees to get to- gether and talk Detroit employees into returning to work, at one point asking employees if they had seen a movie about a plant closing, telling them the same thing could happen to them. Neither Malone nor Westfall testi- fied and the employee accounts are credited. 5. Respondent's further requests on 6 and 12 December for a separate ratification at Detroit A composite of testimony after careful evaluation based on minor variances, internal consistency, credibil- ity, and the import or flow in other evidence reveals that during 6 December negotiations Respondent continued to press for separation of the Detroit plant from the unit, this time, according to Union Assistant Vice President Ellis, corroborated by Union Representative John Mando, openly pressing the Union to allow a separate Detroit employee vote, in effect a separate contract rati- fication. Ellis rejected the request as tantamount to the Union agreeing to split the unit Union Representative Mando, mistaken by 1 day about the date of the 6 De- cember meeting, testified that the union representative informed company officials Malone, Dick, and Childress that the Union was willing to discuss "2-tier" level of benefits but such had to be under a master agreement. Company spokesman Childress denied asking for a "rati- fication" vote, but did not deny asking the Union to afford Detroit an opportunity to vote on the proposal. Further, I credit Ellis over Childress on this point be- cause I found Childress walked a very thin line of dis- tinction-too careful to commend his testimony on this 173 point as reliable, fully accurate, or unaffected by self-in- terest. Thus Childress denied the Union ever made accu- sations that the Company was trying to split the master agreement but testified indeed that Ellis had raised that very subject by asking Childress at an earlier meeting point blank, "Are you trying to break the master?" And, of course, Mando's testimony reflects pointed union con- cern over preserving the master agreement communicat- ed to Respondent at this meeting As Respondent, concurrent with above efforts, sought differing benefits at the three plants, the Union respond- ed fulsomely in such respect, agreeing to different levels at the three plants in a phone call between Ellis and company official Dick on 7 December, so long as the benefits and employees at the three plants remained under the master agreement. In fact, the Union was will- ing to "sell" Respondent's 15 November economic offer to Detroit if Union Representative Ellis could "work out" the Elmira plant issues, as indicated in a report by Ellis to Union Vice President Odesso Komar (G.C. Exh 39), and by Ellis' testimony regarding a statement he was questioned about on examination so long as the master agreement unit remained intact. Nonetheless, in a conference call on 12 December, Company President Malone again urged on the Union that a separate Detroit plant vote be taken on Respond- ent's contract offer, Union Representative Mando reject- ing the idea again . Mando replied, "I said we'd not agree to break up the master concept, that that was what he was proposing and we couldn't permit separate votes." Mando suggested the parties get back to the bargaining table, that they were not that far apart and could work out a settlement-Malone responding he would think about it and call back. Malone did not testify and Mando's testimony is credible 6 Respondent's 13 December letter to Detroit employees Instead of returning to the bargaining table and devot- ing itself to the economic issues, Respondent, the very day following the Malone conference call, mailed an- other letter to some 140 or so Detroit employees only (G C Exh 9), accusing the Union of unfairly punishing the Detroit employees "for the sake of other operations," claiming its offer to the Detroit employees was a fair one and urging Detroit employees to return to work. The letter contains the information that Respondent may have to move other manufacturing lines out of the plant in addition to one already transferred, in order to service customers. There can be no reasonable question but that in the context fairly established to this point this letter was yet another reinforcement in Respondent's efforts to break apart the Detroit plant from the three- plant unit discussed further below, by inducing the Detroit employ- ees to return to work thereby creating a de facto accept- ance of the separate Detroit contract. Still hammering away at Detroit employees in efforts that would divide the unit, Respondent's Detroit Plant Director of Industrial Relations E. J. Mullane talked with picketing Detroit plant employee Susan Hagedorn on 15 December on the picket line at 8 a.m. asking her 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD why she did not bring her people back to work, warning her that the Company had hired 50 people to work at the Elmira plant and "we didn't want to see that happen here," and advising Hagedorn that employees had gotten the Company's best contract offer in the mail (the 15 November offer). She then protested that the employees could not return to work without a contract. Moreover, as late as the 9 and 10 January 1984 negotiations, Re- spondent, according to undenied testimony by Union Representatives Mando and Ellis that Respondent pre- sented separate draft agreements, was still giving the ap- pearance of seeking separate plant contracts though the negotiations were on the master level. In fact, in a tele- phone call Ellis recalled as occurring either 17 or 18 Jan- uary 1984, which Facet President Malone had placed to Ellis, Malone again sought the Union to allow Detroit employees a separate vote, even alleging to Ellis that the International had once allowed such a procedure else- where, Ellis responding that the Union would not allow a Detroit vote on an agreement covering them only as "we'd [then] not be able to put together a master con- tract." Analysis There is no question on this record that the Respond- ent sought a fundamental alteration in the parties' long- established and appropriate bargaining unit consisting of the Detroit, Madison, and Elmira plants by seeking through coercive methods a separate contract resolution covering the Detroit plant employees alone. It is well-established that the subject matter of redefin- ing the composition of a bargaining unit established by either Board certification or the parties' longstanding practice and agreement touches a bedrock-like source for stability in the parties' collective-bargaining relationship and is therefore held to be a merely permissive subject of bargaining about which neither side can insist to the point of impasse-in short neither side can force the other to consent to such alteration, though a mutual agreement is permitted Newpaper Printing Corp., 232 NLRB 291, 292 (1977); Tarlas Meat Co. I, 239 NLRB 1396, 1397 (1979), Newport News Shipbuilding, 236 NLRB 1637 (1978); Electrical Workers (White-Westinghouse) v. NLRB, 604 F.2d 689 (D.C. Cir. 1979); Canterbury Gar- dens, 238 NLRB 864 (1978); and General Motors Corp., 120 NLRB 1215 (1958). It follows that if a mutual agree- ment on the matter is lawful, a party can raise the sub- ject at negotiations in an exploratory manner or even with a specific proposal-even take a strong position in the matter so long as such efforts fall short of causing an impasse to further negotiations between the parties. But it is also true as a necessary, logical corollary that if neither side can attempt to force the other to agree to a change in the bargaining unit structure by insisting to impasse in the negotiations on such change, neither can either party attempt to force the other's consent by any other means and still fulfill the duty to bargain in good faith. If, in addition, such party were to select "other" means that were unlawful, such additional transgression would serve to compound the violation of law by seri- ously disrupting the collective-bargaining process still further. Respondent's entreaties to the Detroit employees on the picket line, and its direct mailings to about 140 in the Detroit plant sought a separate contract resolution for them and were strongly laced with thinly veiled threats of further reductions in operations and even plant clos- ing Respondent's communications directly attacked the integrity of the Union by questioning the good faith of union representatives, insinuating they did not care about Detroit employees' interests since the representatives would still get their own pay even if Detroit employees did not. Respondent's communications further disparaged the Union by accusing it of punishing employees unfairly for the sake of other operations-a nonambiguous refer- ence in this context I find-to the Union's allegiance to the three-plant unit and its objection to splitting Detroit employees away from that unit. President Malone's in- junction-like advice to employees to "so think about yourselves . . . not about the Union" could only be an effort to drive a wedge between employees and their bargaining representative still further, the wedge already having been sharpened by the earlier allusions to reduc- tions and plant closing. This coercive action aimed at creating "division be- tween the employees and their bargaining representa- tive" in a similar context has been held violative of the 8(a)(5) mandated good-faith bargaining obligations. Gen- eral Athletic Products Co., 227 NLRB 1565 (1977), and Safeway Trails, 233 NLRB 1078, 1081 (1977). Moreover, Respondent's references both specifically and reasonably interpreted claims that Respondent is the true source for protecting the employees' interests rather than the em- ployees' representative with such claims as the Compa- ny's offer being a fair one while the Union is presented as unfairly punishing employees. This provides a basis to conclude the Respondent unlawfully sought to under- mine the Union's status as the employees' representative in order, plainly, to further its divided unit goal instead of sticking to collective-bargaining matters to the detri- ment of the latter and in derogation of its duty to bar- gain in good faith. Adolph Coors Co., 235 NLRB 271, 277 (1978), citing Texas Electric Coop, 197 NLRB 10, 12, 14 (1972), and, in pertinent part, NLRB P. General Electric Co., 418 F.2d 736 (2d Cir. 1969), as to an employer un- lawfully dealing with the union through employees rather than dealing with the union as the employees' rep- resentative. See also the dissenting opinion by Member Johansen in Putnam Buick, 280 NLRB 868, 870 (1986), that an employer effort supposedly to merely "communi- cate" with employees "was an explicit attempt to con- vince employees that the Respondent was more interest- ed than the Union in their welfare" and this was an indi- cator of bad-faith bargaining since it "undermined the Union's status as the collective-bargaining representa- tive." It is likewise true that in its campaign-like efforts to divide the unit, Respondent sowed the seeds of dissen- sion among the Detroit employees and employees at Elmira, pitting the Detroit employees against their fellow union members by asserting the Elmira striking employ- ees would soon be receiving unemployment compensa- tion that they would not likely share with Detroit em- FACET ENTERPRISES ployees Respondent was then unlawfully importuning to return to work as a separate unit. This effort was in common with Respondent's other efforts to divide the unit by dividing the unity among employees. All these efforts are the exact opposite of good-faith bargaining for "if there is one thing that frustrates collec- tive bargaining with the majority representative, and causes nothing but continuing and extended conflict, it is disruption of the unified action by separating one seg- ment of the whole from others." Tarlas Meat Co. II, 239 NLRB 1400, 1404-1405 (1979). It is well-established that a party is held responsible as intending the foreseeable consequences of his acts which were either desired by the person or which, reasonably viewing matters, were almost virtually certain to occur as a result of the conduct engaged in. By the nature of things, Respondent's pressures and exhortations to em- ployees and the Union could only lead to a fragmenta- tion of the long-established master agreement unit. This is no mere speculation because once voting to ratify a separate contract and returning to work pursuant to the terms applicable to them only, as intended by Respond- ent, there would be no viable collective-bargaining asso- ciated reasons for the Detroit plant employees to be any longer a part of the bargaining unit from which they would be withdrawn by the force of the described events severely weakening the employees' bargaining represent- ative. At the same time the Respondent would be in a better, stronger posture to prevail in negotiations con- cerning the remaining employees in the weakened unit looking in from the outside at Detroit plant employees back at work. Given the Respondent's ample motive and continuing effort to secure this goal as described above, its alleged denials of any such intention, and that it was only making proposals "within a master agreement con- tract" have a hollow ring and are not worthy of belief. In this instance, I find a preponderance of evidence sup- ports the view that Respondent intentionally sought to force a division in the appropriate bargaining unit by clearly unlawfully coercive means, thereby violating the duty to bargain in good faith most seriously and, by the exercise of such coercion, losing the protection other- wise accorded employer communication to employees under the Act in these matters described above. United Technologies Corp., 274 NLRB 609 (1985), and Proctor & Gamble Mfg. Co., 160,NLRB 334 (1966). G. The Trident Defense3 Respondent's defense, inter alia, that it cured such vio- lation, if any, in a notice to employees repudiating such conduct mailed to them no later than 4 February 1984 is found meritless as such repudiation was clearly not a timely one, coming over 2-1/2 months after it had em- barked on the unlawful conduct on 15 November 1983, and for the further reason that not long after the notice, as described above, Respondent engaged in further un- lawful conduct described below. Such repudiation was therefore clearly ineffective. Kroger Co., 275• NLRB 3 Trident Seafoods Corp., 244 NLRB 566 (1979), affd 642 F 2d 1148 (9th Car 1981) 175 1478, 1480 (1985), citing Passavant Memorial Area Hospi- tal, 237 NLRB 138 (1978). .Respondent's further assertion that the Union precon- ditioned settlement of the strike and a contract resolution on amnesty and dismissal of strike replacements-permis- sive topics of bargaining-on and after 9 January 1984, thereby engaging in unlawful conduct serving as a de- fense to Respondent's unfair labor practice described above is patently without merit. In the first place, the bulk of Respondent's unlawful conduct toward splitting the unit occurred between 15 November 1983 and 9 Jan- uary 1984 as described above so that any alleged conduct by the Union on and after 9 January would not serve to justify Respondent's unlawful action beforehand de- scribed above, either with regard to the amnesty matter or the replacement of strike replacements. In the second place, regarding the amnesty question, it is clear that Re- spondent from 9 January 1984 through April and May 1984 and beyond, unlawfully refused to furnish informa- tion regarding picket line misconduct as detailed above which was at the heart of the amnesty problem, and left the Union without the facts required to intelligently ne- gotiate a resolution, so that the Respondent can not be heard to "defend" here on the basis of matters fairly aris- ing from alleged union misconduct due to its own unfair labor practices and responsibility and well after its un- lawful conduct in attempting to split the unit earlier. Grede Plastics, 235 NLRB 363, 364 (1978). Third, the strikers involved in this matter were unfair labor practice strikers on whose behalf, therefore, the Union was enti- tled to seek immediate replacement by, inter alia, de- manding the dismissal of all strike replacements. Kansas Van & Storage Co., 273 NLRB 855 (1984); Coca-Cola Co. of Memphis, 269 NLRB 1101 (1984); and Charles D. Bon- anno Linen Service, 268 NLRB 552, 553 (1984). Finally, Respondent's reliance on SCA Services of Georgia, 275 NLRB 830 (1985), and other cases on brief, upholding the general right of an employer to seek the return of striking employees to work-including addressing only some segments of employees in the unit to do so, is mis- placed _ as in those cases the employer's conduct in making such efforts was not coercive or intended to divide the established bargaining unit, as was the case here, which renders Respondent's citations inapposite. H. Respondent's Refusal to Reinstate Lemuel Harrison and Sally Dorman During the course of picketing at Respondent's Elmira, New York, and Detroit and Madison Heights, Michigan facilities employing 550 employees several inci- dents involving violence, threats, and property damage occurred, and were attributed to the striking employees by eyewitness accounts and security guard written re- ports identifying those responsible. Acting on this infor- mation, Respondent, at the conclusion of the strike, re- fused reinstatement to numerous employees resulting in the Union filing charges alleging discriminatory dis- charge under Section 8(a)(3) of the Act regarding 15 em- ployees This number fell to only two, Harrison and Dorman, at the hearing, the allegations covering the others having been dropped. Harrison, a Madison 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Heights plant employee, was admittedly present on the picket line at both his plant and Respondent's Detroit fa- cility frequently during the strike and is placed at the scene of many disruptive confrontations between striking employees and company personnel, guard forces, and local police. Thus, guard Alton Buchanan, employed by an outside security force company testified to several encounters he had with Harrison, who was according to Buchanan, identified to him by Industrial Relations Director Don Houser as a suspected source of danger to employees and property at the onset of the strike. Buchanan, in re- sponse to my questioning, testified that Houser pointed to Harrison, then several feet away, and identified him by name as a company employee on the occasion noted. Buchanan testified that during the strike, on 5 December 1983 at the Madison Heights plant, he saw Harrison push a vice president in the security force company, Roger Schmedlin, from behind, the force propelling Schmedlin to the ground in front of oncoming traffic, injuring his hand and knee, and tearing his pants. On 3 January 1984, he testified, also at Madison Heights, Harrison waved a knife 2 or 3 feet away from Buchanan and other security force members as they approached the picket line, threatening to cut them and at one point further exclaim- ing to a firm official, "I'll cut your white ass " Again at the Madison plant, on 5 January, Buchanan testified that during a large massing of pickets, he saw police strug- gling to restrain Harrison, who was also seen by Buchan- an kicking the sides of cars and hitting automobiles with his picket sign. Buchanan further observed Harrison throwing firewood and sticks, nearly hitting Schmedlin but for Buchanan's pushing the latter aside, on 12 or 15 January, at the Detroit plant when, he also testified, Har- rison threw bottles, rocks, and stones at Buchanan and fellow security quards. On 15 or 16 January, back at the Madison plant, Buchanan again identified Harrison as threatening, in their general direction, about 1 foot away, to cut them, describing Harrison's approximate age, height, and weight for the record Milton J. Sheehan, then a Detroit plant employee, tes- tified that during the Company's effort to remove ma- chinery on 16 January 1984, while trucks were attempt- ing to enter the plant's premises, he saw Harrison (mis- takenly named by him as "Harris") jump on the cab of one of the trucks, beating on the truck with a 4-foot-long wooden picket sign, and screaming at the driver Shee- han reported the incident to Gene Mullane, director of industrial relations at the Detroit plant. He testified that Harrison (and Sally Dorman) were the most "visible," the most "violent," and that he knew Harrison, who had been identified to him as an employee from the Madison plant by another person during prior occasions involving picket line occurrences when Sheehan had asked about Harrison. I found no basis in the testimony offered by Buchanan and Sheehan to doubt their credibility while, on the other hand, I found Harrison's explanations concerning the knife and assault incidents unconvincing . It is clear on this record that the Respondent acted pursuant to the reports concerning Harrison's conduct on the picket line when it refused to reinstate him, as there is not a scintilla of evidence tending to show such reports were mistaken or fabricated, or that Respondent based its action on any other reasons. In sum, I find that Respondent had a rea- sonable, honest basis for its belief that Harrison had en- gaged in improper activities while on the picket line ren- dering his conduct as a striking employee unprotected by the Act. Accordingly, the burden fell on counsel for the General Counsel to prove by a preponderance of the evi- dence that Harrison had not been engaged in any unpro- tected activities forming the basis for his not being rein- stated. Harvey Engineering Corp., 270 NLRB 1290, 1301 (1984). This he was unable to do. In this connection, I have considered the contention that Buchanan's testimony that Houser identified Hai ri- son to Buchanan was hearsay on the issue of whether the person pointed out to Buchanan by Houser was in fact Harrison and agree that such would be hearsay regard- ing that issue, as well as Sheehan's testimony that'some- one had identified a picket as Harrison to him. However, the central or overriding issue is whether Respondent had a reasonable basis to believe Harrison had engaged in the cited conduct On that issue, of course, the identi- fication of Harrison plays an important part, but the record is devoid of any reason why Respondent could not reasonably rely on the reports of Buchanan and Sheehan as described. Harvey Engineering Corp., ibid; citing General Telephone Co. of Michigan, 251 NLRB 737 (1980), affil. 672 F.2d 894 (D.C. Cir. 1981). It was Re- spondent's own Director of Industrial Relations Don Houser, who had reportedly made the identification for Buchanan, and there was no reason for Respondent to question or reject the account given by Sheehan, whose wife worked at the Madison plant, like Harrison, who was placed at the scene of violence by Sheehan on sever- al occasions so that it would be natural or reasonable for Respondent to accept his identification as reliable. Thus, it is clear that the testimony by both witnesses concern- ing their being told the striker was Harrison is not unreli- able hearsay on the limited question of what they were told; consequently, this finding of fact, to that limited extent, is based on uncontradicted, probative evidence on which both Respondent and the above conclusion is enti- tled to rely. Nor is counsel for the General Counsel prej- udiced by such finding for he had the opportunity, and exercised it, to cross-examine both witnesses as to what they were told and, further, to recall Houser and test the accuracy and reliability of his reported identification of Harrison to Buchanan under cross-examination, but chose not to do so. Sally Dorman, a striking Detroit plant employee, was likewise denied reinstatement by Respondent at the con- clusion of the strike. At this hearing six witnesses credi- bly testified that they saw Dorman, during the picketing at the Detroit plant in January and February, engage in screaming , threatening conduct against company person- nel, attacks on company and employee vehicles by beat- ing on cars and trucks with picket signs, her fists and feet, and brandishing a 6-foot-long wooden picket sign menacingly toward employees, calling them scabs while waving it in such fashion that one witness testified he felt she was about to attack the employees. Each of the wit- FACET ENTERPRISES nesses, including Sheehan for whom Dorman once worked, was able to identify Dorman based on their per- sonal knowledge of who she was, either because of being a long-term coemployee or supervisor or personnel ad- ministrator who had prior direct contact with her. Dorman herself, though down-playing or denying some of the reports, admitted the police had to twice order her to stop "touching" vehicles entering the plant, but refused to testify under oath . Director of Manufacturing William Popadynec, himself a witness to Dorman 's beat- ing on car windshields with her picket sign of 14 Janu- ary, and hitting the side window of an incoming plant truck three or four times on 16 January with her picket sign, testified Dorman was discharged for her conduct that he and others had reported as summarized above. Based on the foregoing , I find that Respondent lawfully denied reinstatement to strikers Dorman and Harrison because they engaged in picket line misconduct clearly exceeding the bounds of peaceful and reasoned conduct required by law so as to coerce or intimidate employees in the exercise of rights protected under the Act as well as other persons who do not enjoy the protection of Sec- tion 7 of the Act. Clear Pine Mouldings, 268 NLRB 1044 (1984); Southwest Forest Industries , 273 NLRB 765 (1984); New Galex Mirror Corp., 273 NLRB 1232 (1984); and Harvey .Engineering Corp., supra. Counsel for the General Counsel's reliance on case authority to the contrary is unavailing because in the authorities cited by him there was a preponderance in evidence showing either that the employers' belief regarding the employees ' misconduct was mistaken, or that there was no basis at all to con- clude the employees had engaged in the misconduct, the opposite of this situation. I. Respondent 's Unilateral Changes The complaint alleges that Respondent made numer- ous changes in preexisting employment conditions at the strike's end on 17 February 1984 without bargaining with the Union : by dispensing with the parties' contract -estab- lished grievance procedure; reducing the number of rec- ognized shop stewards at the Detroit plant from six to three; denying the Elmira local union president, a shop committeeman, access to the plant and his right to recall before other employees thereby denying him supersenior- ity under the parties' agreement; and further, by reduc- ing the amount of company-paid time accorded employ- ee union committeemen and officers engaged in represen- tational matters in the Detroit plant. The sworn testimony of witnesses McElligott, Waller, Bastuba, and Rahill establishes without contradiction that while the parties' agreement covering the three plants was in effect, including concurrent supplementary agree- ments, the parties were bound by contract provisions and practices establishing a step-by-step grievance procedure which could be initiated by written complaints on pre- pared forms. Six shop stewards were recognized by the Company at the Detroit plant, plant access for union of- ficers to represent employees , superseniority in recall for local union officers and shop committee members, paid time for conducting union -management-employee related matters viz : to the local's president, vice president, and financial secretary 3-1/2 hours a day, grievance commit- 177 tee chairman 10 hours a week , and union stewards and chief stewards were granted a reasonable amount of time to handle grievances . The parties are not in dispute over the particulars established and in force by contract prior to the strike's conclusion, and Respondent made no effort at the hearing or on brief to deny same . I find these employment conditions to have been in existence at all relevant times herein. See (G .C. Exh. 3), Local 104 Supplemental Agreement article I, paragraph 4; id. at 6; and Local 604 Supplemental Agreement at 6 and 12, para- graph 28. On the strike's conclusion Respondent instituted wide- ranging changes in the employment conditions of its em- ployees. Detroit Grievance Committee Chairman Loyd Bastuba testified without contradiction that Detroit Per- sonnel Director Mullane told him after Bastuba had re- turned to work and had occasion to ask Mullane for a grievance form that, "there was no longer any contract between us and the company and there was no longer a grievance procedure ," so Mullane refused to give him any grievance forms . Bastuba further testified that the "whole format of filing a grievance was gone-all you could do was talk with Mullane-[though] normally there were steps with foreman involved ." On cross-ex- amination Bastuba said , "We had no procedure-had to accept what Mullane decided after we returned to work." Detroit Local Union President Tony Rahill also testi- fied that after his return to work he had a discussion with Mullane on 27 or 28 February, the latter informing Rahill of reductions in the amount of paid time for union plant representatives to 2 hours a week , only for the three top officials, elimination of three area stewards and that the three remaining chief stewards would have no time in the plant . When Rahill asked for the reason behind Respondent's action, Mullane told him, "you're back on unconditional offer . No contract, no representa- tion and no grievance procedure ." Rahill further testified that there was no grievance procedure after employees returned to work. In a phone call from Mullane to Union Staff Repre- sentative Walter Waller on 29 February in response to a question Waller had raised earlier regarding representa- tion in the plant, Waller testified Mullane said, "they did not have to recognize anyone as far as representation purpose but because of the relationship we had we'd rec- ognize three stewards in the plant but they 'd not have any privileges as far as writing grievances is concerned." When Waller asked, "What was the sense in recognizing these people if they can't use the grievance procedure," Mullane replied, "Well, you came back unconditionally and as far as the grievance procedure is concerned, we don't have to do it and that's our decision ... and we don't have to bargain on it." Waller testified that there was no formal grievance procedure in place after the strike concluded. In the same timeframe Fred McElligott , who served variously as president, vice president, and a member on the shop committee at the Elmira plant at all relevant times, testified he arrived at the plant on 24 February at 1 p.m. and asked for access to the plant bcause he was a 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union official and there were union members in the plant, but was informed by the secretary to John Evans, direc- tor of industrial relations at the Elmira plant, that "there'd be no union officials let into the plant." McElh- gott, who testified without contradiction that about 40 employees had been recalled to work since the uncondi- tional offer on 17 February while he had still not been recalled on the 24 February occasion described despite his nght to preferential recall before the others under the parties agreement, asked the secretary-a long-time ac- quaintance at the plant-to have Evans call him. Evans called McElligott later at the union hall, confirming that there would be no union officials allowed in the plant. On cross-examination , McElligott stated that the secre- tary was referring to union stewards being barred as well, and that when he asked Evans during the phone call whether there would be representation for the union people in the plant, Evans said there would be no union representation allowed in the plant , and refused McElli- gott's request for a written statement explaining the reason. Evans did not testify. As was recently noted with Board approval in PRC Recording Co., 280 NLRB 615, 634-635 (1986). It is the Board 's obligation to protect the process by which employers and unions may reach agree- ments with respect to terms and conditions of em- ployment. Sea Bay Manor Home, 253 NLRB 739, 740 (1980); NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 (1967). Old Man's Home of Philadelphia, 265 NLRB [1632 (1982)], the Board, quoting from the basic authority in this area, NLRB v. Benne Katz, 369 U.S. 736, 743 (1962), notes that the Su- preme Court held: A refusal to negotiate in fact as to any subject which is within § 8(d) and about which the union seeks to negotiate , violates § 8(a)(5) though the employer has every desire to reach agreement with the union on an over-all collec- tive agreement and earnestly and in all good faith bargains to that end. We hold that an employer's unilateral change in conditions of employment under negotiations is similarly a violation of § 8(a)(5) for it is a circumvention of the duty to ne- gotiate which frustrates the objective of § 8(a)(5) much as does a flat refusal [emphasis added]. An employer has a statutory obligation to contin- ue to follow the terms and conditions of employ- ment governing the employer-employee, as opposed to the employer-union, relationship in an expired contract until it has bargained to impasse with the collective-bargaining representative of its employees unless the union fails to timely request bargaining following the employer's notice of an intention to modify NLRB v. Haberman Construction Co., 618 F.2d 288, 302-303 (5th Cir. 1980); NLRB v. Anton- ino's Restaurant, 648 F.2d 1206, 1214 (9th Cir. 1981); Bay Area Sealers, 251 NLRB 89 (1980), enf. denied 665 F.2d 970 (9th Cir. 1982); Henhouse Market, 175 NLRB 596 ( 1969), enfd . 428 F 2d 133 (8th Cir. 1970). Even if an impasse is reached, a uni- lateral change cannot be made unless it is reason- ably encompassed within the employer 's preimpasse proposal Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub nom . Television Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). See also PRC Recording Co., 280 NLRB 615 (1986). The question of whether the unilateral change is encompassed or within the ambit of the proposals already made and rejected is not so much governed by timing or specific aspects of a change but such change cannot, it is clear, exceed the positions and offer previously extended to the union, cf. Stone Boatyard, 264 NLRB 981 (1982); and NLRB Y. Crompton Highland Mills, 337 U.S. 217 (1949). Turning to the Respondent's conduct I first note that it impacted on deeply imbedded terms and conditions of employment governing the "employer -employee, as op- posed to the employer-union relationship" the latter being illustrated by, for example union secunty, arbitra- tion, and check-off provisions. PRC Recording Co., supra at 667, quoting Freedman Electric, 256 NLRB 432, 443 (1981) Thus, Respondent's undeniable rejection of the parties' entire, carefully crafted , and long-established formal pro- cedure for the imitation and step-by-step handling and resolution of employee grievance struck at the heart of the employer-employee relationship dispensing with writ- ten grievances and procedural steps designed to resolve problems in an orderly, understood-in-advance process in which the rights of employees and the employer were understood and agreed on . Such a rejection is calculated to leave the parties' earlier system for resolving employ- ee-employer related grievances in a shambles. There were no pnor negotations, union consent , waiver, or offers by Respondent concerning the elimination of the parties' formal grievance procedures , and I therefore conclude Respondent's announced repudiation and uni- lateral cancellation thereof as found above to violate Section 8(a)(5) of the Act on the cited authorities above. See also Granite City Steel Co., 167 NLRB 310, 316 (1967). Concerning as it did the availability of their union stewards to receive and adjust grievances from employ- ees against their employer, I further find the subject of paid representational time for plant union representatives and the number of union stewards which Respondent re- duced at the Detroit plant to also be within the above- descnbed relationship of employment conditions that sur- vived the expiration of the parties' contract. The record establishes that Respondent 's last offer to reduce such paid time was limited to a reduction of only one-half hour a week from 17-1/2, no time outside the plant for the grievance committee chairman , no reasonable time in the plant, but the area stewards and chief stewards would have reasonable time for grievances. In action re- ducing those benefits in sharp contrast to both their former level under the parties' agreement as well as its last offer, Respondent eliminated paid time for all union representatives except the three top union officials at De- troit and, regarding them, wiped out all but only 2 hours from the former 17-1/2 hours, eliminated three area stewards, and disclosed there would be no paid time for FACET ENTERPRISES the remaining chief stewards in the plant. Even under Respondent's theory of defense on brief of impasse but for the elimination of the positions of three area stew- ards, which is in accord with the Respondent's prior offer on this subject, Respondent's action was substantial- ly beyond the ambit of earlier proposals and also as to which, further, I find there was no union consent or waiver. Moreover even though the reduction in the number of stewards to three was in accord with the Re- spondent's prior offer, Respondent failed to establish any justifying prior impasse in local Detroit plant negotia- tions in this area, union consent, or waiver, hence the re- duction, like the elimination in paid representation time, was violative of the Act. See cases cited in Bay Area Sealers, 251 NLRB 89, 90 (1980). As further noted in PRC Recording Co., supra at 636, "As noted in Caravelle Boat Co., 227 NLRB at 1357, it is `axiomatic that unilaterally changing the method of re- calling employees is violative of the Act' (unilateral change in recalling employees according to seniority)." Respondent's failure to recall McElligott until 28 Febru- ary 1984, having recalled about 40 employees before him despite his admitted contract superseniority in recall worked a unilateral change in the existing methods of re- calling employees thereby violating the Act. Respondent, herein found to have unlawfully refused to reinstate the unfair labor practice strikers including McElligott on their tender of unconditional offers to return to work in violation of Section 8(a)(3) of the Act, and to have, in McElligott's case, additionally refused to reinstate him according to his seniority in violation of Section 8(a)(5) cannot now defend its action denying McElligott access to the plant for the purpose of representing employees as union president and shop committeeman on the basis that he was not an "active employee" under the parties' former agreement for such result would reward Re- spondent on the basis of its own violations of employee rights and continuing status as employees under the Act. Rebuffed at the plant office and in the phone call from Evans from entering the plant, McElligott and other Elmira plant employees serving as stewards were unlaw- fully deprived of their rights under the Act. R. C. Cobb, Inc., 231 NLRB 99, 104 (1977). For the right of access denied here was a long-established practice contractually required in the past, and survived the expiration of the contract. Such denial removed a "real and substantial benefit," Granite City Steel Co., 167 NLRB 310, 315 (1967); J & H Rainwear, 273 NLRB 497 (1984); Houston Coca-Cola Bottling Co., 265 NLRB 766, 778 (1982); and Kinard Trucking Co., 152 NLRB 449, 450 (1965). In Granite City, supra, it was noted: This is not to say that the statute freezes Re- spondent to the existing practices on plant access. It is to say that prior to effecting changes therein it is under a duty to give its employees' statutory repre- sentative an opportunity to bargain concerning pro- posed changes. The bargaining representative is en- titled to "an opportunity to present arguments to the employer to dissuade him from effecting the change, and also an opportunity to propose alterna- tives or compromises which might moderate the 179 change so as to accommodate the interests of the employees as well as of the employer. [Kinard Trucking Co., 152 NLRB 449, 450 (1965).] Respondent never afforded the Union an opportunity to bargain about this action depriving union access at the Elmira plant, and offered no valid reasons for imposing the change, which was material, substantial, and signifi- cant, hence a further refusal to bargain in violation of Section 8(a)(5) and (1) of the Act, as were the earlier re- lated unilateral changes in employment conditions de- scribed above. J. The Prolongation and Conversion of the Strike Respondent's unlawful insistence to impasse on the EBW proposal, as discussed and established above, sub- stantially contributed to causing from its outset the unfair labor practice strike at the Madison Heights plant begin- ning on 3 November 1983. The record is clear that be- ginning on 2 December 1983 Respondent's unlawful ef- forts to divide the three-plant unit service to prolong the strike, begun earlier at all the plants and as a result, from that date forward to its conclusion on 17 February 1984, the strike for such additional reasons was an unfair labor practice unitwide strike. Thus, the Union filed unfair labor practices concern- ing, inter alia, Respondent's unlawful conduct seeking to divide the bargaining unit on 15 December 1983 (G.C. Exh. 1). The charges were read and explained to striking employees at local union meetings, along with, at Madi- son, transmittal letters to Company President Malone from Union Vice President Komar and Union Attorney Page to the NLRB Regional Office, employees being ad- vised the strike was an unfair labor practice strike Smith advised unit members Barbra Terrace and Randy Berner to print new picket signs stating the picketing was over unfair labor practices. Smith and Madison plant former operator Guisippi Scianimanico testified to such signs being carried thereafter, the latter supplying a photo- graph of same. (G.C. Exh. 209.) Similarly, at the meeting for Detroit plant striking em- ployees on 24 December 1983, Detroit employee Local 104 President Tony Rahill testified that assistant to UAW Vice President Jim Ellis was present to give em- ployees an update on negotiatons and said (Ellis) that the Union was filing unfair labor practices against the com- pany-"that people on the [picket] line were being ap- proached by management asking them to come back to work with no contract and no union " Rahill further tes- tified on cross-examination that Ellis explained "about the [letters] the company had written and the Union had written to the company," the Company using unfair labor practices "as far as talking to people on the picket line, trying to get them to come back to work without a contract." Rahill described a request by Ellis that if anyone other than those who had given statements was approached on the line they should make themselves known. Further direct evidence that Respondent's un- lawful efforts to break apart the Detroit plant employees from the unit fueled Detroit employees' resolve to con- tinue the strike is found in employee accounts described 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD above when Respondent officials approached picketing Detroit employees seeking their separate return to work on 24 November and 5 December 1983. Such appeals were rejected, employees voicing quickly and strongly the views that Respondent's proposals were aimed at separation of the unit consisting of "sister locals" were all together (employees Sally Dorman, Jerom McKenny, and Loyd Bastuba). Witness Fred McElligott served as an employee for 21 years at the Elmira plant and held the position of vice president and acting Local 604 president, as such being a member on the shop bargaining committee throughout 1983 and 1984 negotiations for a new contract. He testi- fied credibly that he knew the Union had filed the unfair labor practice charge noted above on 15 December 1983, as Union District Representative Jack Manione and UAW Counsel Leonard Page so informed him. He testified that during a local union meeting attended by some 175 local union members during the third week in December 1983 Manione described company letters sent to one plant seeking a return to work by them with- out the other two plants, and a meeting between the Company and the Union where company negotiator Childress sought only the return of the Detroit plant to work. He then read the unfair labor practice charges in- volving Respondent's unlawful efforts to split the unit to the assembled striking employees and that numerous members expressed the view that "that they all went out on strike together and they will stick together. There is no way one plant will go back to work without the other two units." McElligott, an employee at Elmira himself for 21 years and personally involved in the nego- tiations was asked, based on his discussions, inter alia, with fellow striking employees and members under his leadership in the local union what effect the Respond- ent's separate (unit) proposals had on the strike, if any He replied, " It made the membership more stronger than what they were. They were all more determined to stick together," and "to continue to strike and to continue to hold together the three units.. .114 Thereafter, until the conclusion in the strike, picketing employees carried newly painted signs, made by McEll ►- gott, stating that Facet was charged with unfair labor practices from around 21 or 22 December until 17 Feb- ruary. There were some 360 employees at the Elmira plant and only 300 combined at Madison and Detroit so that an agreement opposed by Elmira unanimously would not pass, and McElligott testified that Respond- ent's "separation " proposals were opposed at Elmira. Respondent's conduct was calculated by unlawful threats and coercion to strike at the core of the employ- ers' bargaining representative's source of bargaining power, the combination in a single bargaining unit of em- ployees at all three plants, and such conduct foreseeably therefore would strengthen strikers' resolve to continue protecting the survival of such unit-since such survival was linked to the Union's chances of securing a better " During his testimony, McElligott at first mistakenly placed the occa- sion when Respondent's efforts to divide the bargaining unit were dis- cussed with employees as mid-October, but corrected himself shortly afterward by placing it in December, his correction being rendered in a spontaneous and candid manner contract and thus the employees' own best interests in terms of improved employment conditions; and the way to protect that interest was to continue the strike, such reasons for doing so being repeatedly communicated to Respondent by employees and their representatives. As has been stated before, "More concrete evidence of causal connection between a violation and the reason for a continuation of a strike can hardly be imagined." Gen- eral Athletic Products Co., 227 NLRB at 1576 The employees were aware of this conduct from 2 De- cember 1983 through the end of the strike, as detailed here and as it has been noted with Board approval, and as the complaint here alleges such conduct "prolonged the strike" because it frustrated collective bargaining with the majority representative and caused nothing but continued and extended conflict disrupting unified action "by separating one segment of the whole from others." Tarlas Meat Co., supra at 1405 Further, a careful assess- ment of the parties' bargaining efforts reveals that at every turn when a glimmer for possible negotiations headway arose, the specter of Respondent's unlawful ef- forts to seek a separate contract resolution for the De- troit plant dashed the prospects for agreement and I view the record in the connection, as a whole, further supports the finding of a causal connection between such and a prolongation in the strike. Blue Fountain Manor, 270 NLRB 199, 206 and case cited at fn. 14 (1984), in which it is stated, "the Board has held in numerous cases that such a connection may be inferred from the record as a whole." Moreover, the fact that union-granted news media interviews omit mention of all the causes for a strike is immaterial, since not shown to have been intend- ed as a complete explanation for such activity being un- dertaken. Berbiglia, Inc., 233 NLRB 1476, 1497 (1977). I find that the strike at all three plants 2 December 1983 until its conclusion became an unfair labor practice strike-the strike at Madison being an unfair labor prac- tice strike from its inception on 3 November 1983 and in the alternative like the situation unitwide, becoming an unfair labor practice strike on 2 December 1983 Tarlas Meat Co., supra; Buffalo Concrete, 276 NLRB 839 (1985); Charles D. Bonanno Linen Service, 268 NLRB 552 (1984); and Blu-Fountain Manor, supra Accordingly, by refusing immediate reinstatement to the striking employees on and after their unconditional offer to return to work on 17 February 1984 as the record clearly established, Respondent also violated Sec- tion 8(a)(1) and (3) of the Act. Kansas Van & Storage Co., 273 NLRB 855 (1984), Coca-Cola Co. of Memphis, 269 NLRB 1101 (1984); and Charles D. Bonanno Linen Serv- ice, supra at 552-553 CONCLUSIONS OF LAW 1. Facet Enterpnses, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union and its Locals 104, 771, and 604 are labor organizations within the meaning of Section 2(5) of the Act. 3 Respondent officials as identified hereinabove in the paragraph on Agency Status are supervisors and/or FACET ENTERPRISES agents and representatives of Respondent within the meaning of the Act. 4 The employees described above under the heading related to this finding constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material the Union and its locals have been the designated exclusive representatives of the em- ployees in the appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 6. By insisting to impasse on the adoption of its pro- posal concerning the exclusion from the unit of the elec- tron beam welder classification, a permissive subject of collective bargaining, during negotiations with the Union, Respondent violated Section 8(a)(5) of the Act. 7 Respondent's conduct described above in paragraph 6 was a contributing cause in the strike commencing on 3 November 1983 at the Madison Heights plant, which thereby was an unfair labor practices strike from its in- ception. 8. By refusing to furnish the Union with information concerning (a) the Company's financial status, (b) move- ment of jobs and machinery from the Detroit plant, and (c) picket line misconduct, all the foregoing being rele- vant and necessary to the Union's collective-bargaining responsibilities, Respondent violated Section 8(a)(5) of the Act. 9. By engaging in conduct, commencing on 2 Decem- ber 1983, particularly described above as being calculat- ed to split off the Detroit plant from the established ap- propriate bargaining unit Respondent refused to bargain in good faith with the Union thereby violating Section 8(a)(5) of the Act. 10. Due to Respondent's conduct described above in paragraph 9, the economic strike at the Detroit and Elmira plants underway since 7 November, was pro- longed and thereby converted to an unfair labor practice strike while the strike at Madison described in paragraph 7 above, for such additional reason, in the alternative was an unfair labor practices strike due to such conduct commencing on 2 December 1983 11. By unilaterally changing the employment condi- tions of its employees as to the established grievance pro- cedures, number of shop stewards, paid time for repre- sentational matters, seniority recall rights, and plant access, as described in detail above, Respondent further violated Section 8(a)(5) of the Act 12. By refusing, commencing on 18 February 1984, the day following their unconditional offer to return to work, to immediately reinstate unfair labor practice strik- ers to their old jobs, discharging, if necessary any re- placements with respect to Madison Heights hired from the strike's inception, and regarding Detroit and Elmira, hired after the strikes there were converted to unfair labor practice strikes (discussed further below in the remedy section of this decision) Respondent violated Section 8(a)(1) and (3) of the Act. 13. The aforesaid unfair labor practices affect com- merce within the meaning of the Act. 14. There is no preponderance in the evidence to es- tablish that Respondent unlawfully discharged Lemuel 181 Harrison and Sally Dorman or has otherwise violated the Act. THE REMEDY The record contains passing references to relocations of the Detroit plant to Detroit environs several months after the strike concluded and the Madison Heights plant outside Michigan, but these matters were not directly in- volved in the issues litigated before me, and the full cir- cumstances were not disclosed. Accordingly, the normal remedies for Respondent's unfair labor practices are war- ranted leaving any matter of mitigating circumstances remedy-wise, to supplementary compliance proceedings if such is demonstrated to be warranted. It will therefore be recommended that Respondent cease and desist from engaging in the aforementioned unfair labor practices, and to take certain affirmative action including, on re- quest to bargain in good faith with the Union designed to effectuate the polices of the Act Respondent having set in motion unlawful new terms and conditions of employment, it is necessary under Board law to order restoration of the contractual status quo ante in the respects noted hereinabove in which Re- spondent acted unlawfully, to the extent feasible, and without imposing an unwarranted burden on Respond- ent T.M.L. Supply, 258 NLRB 604 (1981); S. Freedman Electric, 256 NLRB at 432; and Hood Industries, 248 NLRB 597 fn. 3. Included in such remedy it will be rec- ommended that Respondent make whole its employees for any loss of pay or other employment benefits that they may have suffered commencing on 18 February 1984 by reason of Respondent's unilateral changes of its employees' terms and conditions of employment, as pre- scribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as com- puted in Florida Steel Corp., 231 NLRB 651 (1977). E.G. & G Florida, Inc., 279 NLRB 444 (1986) Respondent having violated Section 8(a)(1) and (3) of the Act, when on 18 February 1984, and thereafter, it unlawfully refused to reinstate unfair labor practice strik- ers on their unconditional offer to return to work, offer- ing only to reemploy them when positions became avail- able by normal attrition among poststrike permanent re- placements and even then only pursuant to terms and conditions of employment unlawfully imposed, I shall recommend Respondent be ordered to offer immediate reinstatement to all Madison Heights plant strikers to their former or equivalent positions, discharging any re- placements hired on or after 3 November 1983 under terms and conditions of employment of the expired con- tracts, and to make them whole for wages and other ben- efits measured under status quo ante conditions, lost by virtue of Respondent's unlawful conduct. Backpay to the Madison Heights unfair labor practice strikers refused lawful reinstatement shall be computed from 17 February 1984, the day of their unconditional offer to return to work, Exchange Bank, 264 NLRB 823 (1982), with ulti- mate net loss of earnings being computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter- est as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., supra. Backpay shall 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cease on offering such employees reinstatement to their former or substantially equivalent jobs PRC Recording Co., 280 NLRB at 99. Regarding the Detroit and Elmira plant strikers-and on the alternative additional theory should such be found on appeal that they did not become unfair labor practice strikers until the strike was converted to an unfair labor practice strike beginning on 2 December 1983 as a result of Respondent's unlawful efforts to split the bargaining unit as described above, the Madison Heights plant em- ployees-the following remedy shall be recommended. On 17 February 1984, the Union requested uncondi- tional reinstatement on behalf of all employees who par- ticipated in the strike begun on 3 November 1983 at Madison Heights, and 7 November elsewhere. The strike was converted to an unfair labor practice strike by the Respondent's violation of Section 8(a)(5) beginning on 2 December 1983. Accordingly, I recommend the Board require the Respondent to reinstate to their former or substantially equivalent positions all strikers who were not permanently replaced before 2 December 1983 with- out impairment of their seniority and other rights and privileges. In order to make room for them, the Re- spondent shall dismiss, if necessary, all persons hired after 2 December 1983. If, after such dismissal, there are insufficient positions available for the remaining former strikers, those positions which are available shall be dis- tributed among them without discrimination because of their union membership or activities or participation in the strike, in accordance with seniority or other nondis- criminatory practice utilized by the Respondent. Back- pay for such strikers will be computed from 17 February 1984 until the date of their reinstatement according to the Isis, Woolworth, and Florida Steel formulas designated above. Those former strikers who were permanently re- placed prior to conversion and for whom no employ- ment is immediately available shall be placed on a prefer- ential hiring list in accordance with their seniority or other nondiscriminatory practice utilized by the Re- spondent, and they shall be reinstated before any other persons are hired or on the departure of their preconver- sion replacements See Gulf Envelope Co., 256 NLRB 320 (1981), and Windham Community Memorial Hospital, 230 NLRB 1070 (1977). Ashe Brick Co., 280 NLRB 1383 (1986). No striking employee, found discharged for cause, need be reinstated provided that backpay and other benefits shall be paid to any such employee dis- charged after 17 February 1984, from that day until date of lawful discharge. O. R. Cooper & Son, 220 NLRB 287 fn. 1 (1975). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules 2nd Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ORDER The Respondent, Facet Enterprises, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with the Union by insisting to impasse in negotiations on the adoption of its proposal to exclude the electron beam welder job classification from the bargaining unit; refusing to pro- vide the Union with information relevant and necessary to the Union's collective-bargaining responsibilities such as finanical data described herein, information concern- ing employees disciplined for picket line misconduct, and information concerning the movement of jobs and ma- chinery from the Detroit plant. (b) Refusing to bargain in good faith with the Union by engaging in conduct designed to split off the Detroit plant employees from the established bargaining unit, which is: All production and maintenance employees em- ployed by Respondent at its Detroit, Michigan plant (Fuel Devices Division), its Madison Heights, Michigan plant (Filter Products Division) and its Elmira, New York plant (Motor Components Divi- sion); but excluding office clerical employees, pro- fessional employees, guards and supervisors as de- fined in the Act. (c) Refusing to bargain in good faith with the Union by unilaterally changing employment conditions such as established grievance procedures, the number of shop stewards, paid time for representative matters, seniority recall rights, and plant access for employee representa- tives without notifying, consulting, or bargaining with the Union as the exclusive representative of its employ- ees in the appropriate bargaining unit. (d) Refusing to immediately reinstate Madison Heights unfair labor practice strikers to their former or substan- tially equivalent positions of employment discharging, if necessary, any replacements, and in the circumstances pertaining to them separately and noted hereinabove De- troit and Elmira unfair labor practice strikers to their former or substantially equivalent positions of employ- ment. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to the Madi- son Heights unfair labor practice strikers to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing if necessary persons hired on or after 3 November 1983, and make them whole for any loss of earnings they may have suf- fered as a result of Respondent's unlawful refusal to rein- state them, in the manner described in the remedy sec- tion of the decision. FACET ENTERPRISES 183 (b) Reinstate and similarly make whole the Detroit and Elmira unfair labor strikers in the manner described above in the remedy section of this decision. (c) On request rescind the above unilateral changes until such time as the Respondent negotiates in good faith with the Union to agreement or impasse. (d) On request, restore the employment benefits herein found to have been unilaterally changed and make whole the employees in the above unit for all losses they may have suffered as a result of Respondent 's changes, with interest thereon, to be computed as described in the remedy section of this decision. (e) On request, recognize and bargain in good faith with the Union as the exclusive representative of all em- ployees in the aforesaid appropriate unit and , if an under- standing is reached , embody such understanding in a written, signed agreement. (f) Furnish the Union with information relevant and necessary to its collective-bargaining responsibilities as described above. (g) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, timecards, personnel records and re- ports, and all other records relevant or necessary to ana- lyze the amounts due under the terms of this Order. (h) Post at its Detroit, Madison Heights, and Elmira plants copies of the attached notice marked "Appen- dix."s Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by Respondent's authorized representative, shall be posted immediately on receipt and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (i) In the event that it cannot reasonably be anticipated that posting alone will suffice to effectuate the purposes of this Order due to dispersal of employees involved aris- ing from plant closing, relocations, or other circum- stances arising from the passage of time, then Respond- ent is further ordered to promptly mail copies of the signed attached notices to the employees involved herein to their home addresses. (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found here. a 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 "