L. W. Le Fort Co., Inc.

344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD L. W. Le Fort Company, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Lodge No. 92, AFL-CIO. Case 21-CA-23984 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On September 15, 1986, Administrative Law Judge Frederick C. Herzog issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief, and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by the state- ments of Mike Grant, one of the Respondent's owners, to employee Joseph Ennes in February 1985 and to employee James Perez in May 1985 that there was not going to be a union, and his threat to employee Preston Williams in June 1985, overheard by Perez, that he would fire Williams once the Union was out of the way. Further, we conclude, as did the judge, that the Respondent violated Section 8(a)(5) of the Act, but we base the violation only on the Respondent's unilateral changes in health and welfare benefits. In the spring of 1985 , the Respondent and the Union began negotiations for a collective-bargain- ing agreement to succeed the one scheduled to expire May 31, 1985.2 After seven bargaining ses- sions, the Respondent submitted its final proposal dated May 30. The employees rejected the propos- al on June 1 , but did not vote to strike. As of June 1 the Respondent stopped making the payments to the pension and health and welfare funds that the expiring contract required . The parties met again on June 3 and 7, but did not resolve their differ- ences. On June 11 the Respondent made another final offer that contained some provisions more re- strictive than those it had proposed earlier. ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings 2 All dates are in 1985 unless otherwise noted From the evidence presented concerning negoti- ations, we conclude that the parties engaged in hard bargaining, remained far apart on key issues, and reached impasse as of June 1 when the em- ployees rejected the Respondent 's May 30 offer. The General Counsel does not contend , nor does the record evidence indicate , that the Respondent's conduct during negotiations through May 30 con- stituted bad-faith bargaining per se. The complaint alleges only bad-faith bargaining on or after June 11 and unlawful changes in pension and health and welfare benefits on or after June 1. Under these circumstances, we do not find, as the judge did, that the June 1 impasse was tainted by the Re- spondent's threats to employees or by any prior bad-faith bargaining. Rather, we find that the June 1 impasse was bona fide and, thereafter, the Re- spondent was free to implement its final offer of May 30.3 As that offer did not provide for pen- sions, we find that the Respondent could lawfully terminate pension contributions after impasse, and did not violate Section 8 (a)(5) when it discontinued payments to the pension fund designated by the contract. The May 30 proposal, however, did in- clude a health and welfare provision that stated that the Respondent agreed "to remain in the Southern California Steel Fabricators and Boiler- makers Trust." Accordingly, we find that the Re- spondent violated Section 8(a)(5) when , contrary to its final offer, it discontinued contributions to the health and welfare fund designated by the contract and established a different health and welfare plan as a condition of employment.4 Based on our review of the course and conduct of negotiations we do not agree with the judge that the Respondent's proposals of June 11 warrant the conclusion that the Respondent was engaged in surface bargaining. 5 On the issues of union securi- ty, checkoff, and pension benefits, the key issues that had separated the parties from the beginning of negotiations,6 the Respondent's position, set out in the June 11 proposals, remained the same. Like- wise, its position on a hiring hall, contrary to the judge's finding, was the same as its May 30 posi- tion, reserving for the Respondent the right to hire new employees from any source. The holiday ben- 8 See Taft Broadcasting Ca, 163 NLRB 475 ( 1967). enfd. sub nom. Tel- evision Artists AFTRA Y. NLRB, 395 F 2d 622 (D.C Cir 1968) 4 See Wayne's Dairy, 223 NLRB 260, 265 (1976). See also Stone Boat Yard, 264 NLRB 981 (1982 ), enfd 715 F 2d 441 (9th Cir. 1983). S See Atlanta Hilton & Tower, 271 NLRB 1600 (1984). The parties stipulated that throughout the contract negotiations, the positions of the parties had been fairly consistent on the union security. checkoff, and pension issues, "with the employer consistently taking the position that union security and checkoff and pension not be part of the successor collective bargaining agreement, or not be included, and the union consistently taking the position that those three items be included in the collective bargaining agreement " 290 NLRB No. 45 L. W. LE FORT CO. efits and wage classification rates proposed were also unchanged. On some issues the June 11 proposals were more restrictive than the May 30 proposals . The June 11 proposals lengthened the probationary period for new employees and the employment period re- quired for employees to earn prorated vacation benefits. They shortened the contract term from 2 years to 1 year, with the result that a limited second-year wage adjustment was deleted. They amended the grievance procedure and the strike and lockout provisions to omit arbitration and permit the Respondent to implement its final griev- ance decision and the Union to apply economic sanctions in response . They replaced the health and welfare plan of the expired contract with a differ- ent plan. It is significant, however, that the Re- spondent advanced its June 11 proposals after the parties had reached a legitimate impasse and its economic position was strengthened by the em- ployees' failure to strike.7 In these circumstances we do not think the June 11 proposals demonstrate that the Respondent had no intent to compose the differences it had with the Union and sought to frustrate bargaining. In so concluding, we do not find that the Re- spondent's antiunion statements to employees and its unilateral changes in the health and welfare plan warrant a different result with respect to the Re- spondent's June 11 proposals. Thus, we note that two of the three antiunion statements were made prior to the parties' bargaining through May 30 and we have found, and the General Counsel has not alleged otherwise, that the Respondent did not engage in bad-faith bargaining through that date, notwithstanding the antiunion statements.8 Further, although the Respondent's unilateral changes in the health and welfare plan violated Section 8(a)(5) and such conduct is a factor to be considered in determining whether overall bad-faith bargaining occurred, it does not necessarily follow from such conduct that the Respondent's June 11 proposals demonstrated an intent to avoid reaching an agree- 7 See Barry-Wehmiller Co., 271 NLRB 471 (1984); Hyatt Regency New Orleans, 281 NLRB 279 (1986). 8 The judge, in finding that the Respondent's June II proposals were so regressive as to warrant an inference that the Respondent had no real intent to compose its differences with the Union , relied heavily on the Respondent's changed bargaining posture in 1985 compared to previous years. He concluded that the "real motivating factors" behind this change were an incident in February in which Grant expressed to the Union's shop steward his unhappiness with the Union 's denial of pension benefits to Grant's father, a longtime union member, and Grant's confrontation in February or March with the Union's president concerning the treatment of the latter's son, who was employed by the Respondent Even were we to consider these incidents as reflecting more than Grant 's personal pique with the Union, such incidents would not be determinative of whether the June I I proposals, in themselves, were so unreasonable as to consti- tute bad-faith bargaining . In any event, we note that these incidents oc- curred prior to the good -faith bargaining through May 30. 345 ment with the Union . Roman Iron Works, 275 NLRB 449, 453 (1985). In this regard, we empha- size, as noted above, that many of the June 11 pro- posals were consistent with the May 30 proposals and that, although certain other of the June 11 pro- posals were more restrictive than the May 30 pro- posals, they were advanced after the parties had reached a legitimate impasse and the Respondent's economic position had been strengthened by the employees' failure to strike. Accordingly, consider- ing the Respondent's overall conduct here under Atlanta Hilton , supra, we conclude that the General Counsel has not established by a preponderance of the evidence that the Respondent's conduct in making more restrictive proposals on June 11 con- stituted surface bargaining rather than good -faith, albeit hard, bargaining.9 AMENDED CONCLUSIONS OF LAW Substitute the following paragraphs for the judge's Conclusions of Law 5 and 6. "5. By discontinuing the health and welfare pay- ments required by the bargaining contract that ex- pired May 31, 1985, and replacing the contract health and welfare plan with a different plan, the Respondent violated Section 8(a)(5) and (1) of the Act. "6. By threatening employees that there was not going to be a union and that the Respondent would fire an employee once the Union was out of the way, the Respondent violated Section 8(a)(1) of the Act." REMEDY Having found that the Respondent has engaged in certain unfair labor practices , we will order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to con- tribute to the health and welfare fund designated 9 Chairman Stephens would not extend the logic of Barry- Wehmiller Co., 271 NLRB 471 (1984), i.e., finding no manifestation of bad faith in an employer's offering the union a less favorable contract after it has weathered a strike, to the situation here, where the Respondent has al- tered its offer for the worse after the Union has simply voted to reject it and has, for the moment at least, declined to strike. The changes-in par- ticular, the withdrawal of the offer to arbitrate grievances-were not in- significant, and they were made a little more than a week after one of the Respondent's owners told an employee that there was going to be "no union in the shop " Even granting that the parties had been at impasse over issues other than those involved in the clauses in which the regres- sive changes were made, Chairman Stephens would find that an employ- er that, without any real explanation , makes its total contract offer even less favorable than the offer already rejected is not seeking in good faith to reach a collective-bargaining agreement with the union. Thus, Chair- man Stephens would predicate the 8(a )(5) violation on the additional ground of regressive bargaining. 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by the contract that expired May 31 , 1985, and by establishing a different plan. Therefore , we shall order it to bargain, on the Union's request, about health and welfare benefits and to reimburse the fund designated by the contract for the amounts it failed to pay from June 1 , 1985, when it discontin- ued payments, through November 30, 1985, the date the parties stipulated the period of liability should end. 1 ° We shall also require the Respondent to make whole employees for any losses or ex- penses incurred by reason of its unlawful unilateral conduct, with interest as computed in New Horizons for the Retarded. 111 ORDER The National Labor Relations Board orders that the Respondent, L. W. Le Fort Company, Inc., Placentia, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that there will not be a union and that employees will be discharged when the Union is gone. (b) Refusing to bargain collectively with Interna- tional Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, Lodge No. 92, AFL-CIO, as the representative of its em- ployees in the appropriate unit described below, by unilaterally discontinuing health and welfare con- tributions to the fund designated by the bargaining contract that expired May 31 , 1985, or by unilater- ally instituting a different health and welfare plan. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of employees in the follow- 10 Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlaw- fully withheld fund payments. We leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the health and welfare fund in order to satisfy our make-whole remedy These additional amounts may be determined , depending on the circumstances of each case , by reference to provisions in the documents governing the funds at issue and , when there are no governing provi- sions, to evidence of any loss directly attributable to the unlawful with- holding action , which might include the loss of return on investment of the portion of funds withheld or additional administrative costs , but not collateral losses. See Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7(1979). 11 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1 , 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 , 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). ing appropriate unit concerning health and welfare benefits and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees in the Respondent's plant located at 1136 Rich- field Road, Placentia, California, performing work in manufacturing , fabricating, assem- bling, contract and repair shops, including the operation of all machines , mechanical devices and tools as may be required to properly per- form and complete the work covered by the scope of prior collective bargaining agree- ments between the parties; excluding all em- ployees who are presently represented through collective bargaining agreements with other unions affiliated with the AFL-CIO, office and clerical employees , technical and profes- sional employees, guards and supervisory em- ployees. (b) Make whole unit employees by contributing to the health and welfare fund designated by the collective-bargaining contract that expired May 31, 1985, and by reimbursing employees for any losses or expenses incurred by reason of its unlawful con- duct, in the manner set forth in the remedy section of the decision. (c) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts due under the terms of this Order. (d) Post at its facility in Placentia, California, copies of the attached notice marked "Appen- dix."12 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 12 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 " L. W. LE FORT CO. 347 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten employees that there will not be a union and that employees will be dis- charged when the Union is gone. WE WILL NOT refuse to bargain collectively with International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Lodge No. 92, AFL-CIO, as the representative of our employees in the appropriate unit described below, by unilaterally discontinuing health and welfare contributions to the fund designated by the bargaining contract that expired May 31, 1985, or by unilaterally instituting a different health and welfare plan. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of our employees in the following appropriate unit concerning health and welfare benefits, and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees in our plant located at 1136 Richfield Road, Pla- centia, California, performing work in , manu- facturing, fabricating, assembling, contract and repair shops, including the operation of all ma- chines, mechanical devices and tools as may be required to properly perform and complete the work covered by the scope of prior collective bargaining agreements between the parties; ex- cluding all employees who are presently repre- sented through collective bargaining agree- ments with other unions affiliated with the AFL-CIO, office and clerical employees, tech- nical and professional employees, guards and supervisory employees. WE WILL make whole unit employees by con- tributing to the health and welfare fund provided for by the collective-bargaining contract that ex- pired May 31, 1985, and by reimbursing employees for any losses or expenses incurred by reason of our unlawful conduct, in the manner required by the Board. L. W. LE FORT COMPANY, INC. Salvador Sanders, Esq., for the General Counsel. A. Patrick Nagel, Esq., of Newport Beach, California, for the Respondent. DECISION STATEMENT OF THE CASE FREDERICK C. HERZOG, Administrative Law Judge. This matter was heard by me in Los Angeles, California, and is based on a charge filed by International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local No. 92, AFL-CIO (the Union) on or about 13 June 1985 alleging that L. W. Le Fort Company, Inc. (Respondent) committed certain vio- lations of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). On or about 30 October 1985 the Regional Director for Region 21 of the National Labor Relations Board (Board) issued a complaint and notice of hearing alleging violations of Section 8(a)(5) and (1) of the Act. The issues raised by the pleadings were tried before me on 11 and 12 December 1985. All parties appeared at the hearing through counsel and were given full oppor- tunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses , to argue orally, and to file briefs. Based on the record , and my consider- ation of the briefs filed by each of the parties, and my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the business of fabricating products from steel and their in- stallation in industrial and commercial establishments, having its office and place of business in Placentia, Cali- fornia. During the normal course and conduct of its busi- ness operations, it purchases and receives goods, prod- ucts, and materials valued in excess of $50,000 directly from customers located outside the State of California. Based on these admitted facts, I find that Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that the Union is now, and at all times material has been a labor organization within the meaning of Section 2(5) of the Act. 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint, as amended, or argued by the General Counsel at the trial, advances two propositions as the es- sential issues in this case . The first is that in or about February' and in or about May or June , Respondent threatened employees by stating that there was not going to be a union at Respondent . The second is that since on or about 11 June Respondent has failed and refused to bargain collectively in good faith with the Union by, among other things, submitting regressive proposals in an attempt to avoid agreement and to create an impasse in bargaining; as a consequence, the General Counsel as- serts that Respondent has therefore violated Section 8(a)(5) of the Act by its failure and refusal to make health and welfare pension payments on behalf of em- ployees into the appropriate trust funds , as set forth in the recently expired collective -bargaining agreement. Another matter, which was apparently inadvertently left open by the parties as an issue in this case , concerns the appropriate description of the unit involved. Neither party disputes that this controversy involves only the Respondent's shop employees, and that Respondent's field employees are covered by a separate collective-bar- gaining agreement . The complaint alleges a unit de- scribed as "all production and maintenance employees performing work in manufacturing, fabricating, assem- bling, contract and repair shops, excluding all employees who are represented through collective-bargaining agree- ments with other unions affiliated with the AFL-CIO, office clerical employees, technical and professional em- ployees, guards and supervisors as defined in the Act." The complaint's allegation in this respect comports sub- stantially with the wording in the recognition clause of the collective-bargaining agreement between the parties, which expired on 31 May . The only difference in sub- stance between the old recognition clause and that which was plead in the complaint is that the complaint's allega- tion fails to mention the inclusion of workers operating ..all machines, mechanical devices and tools as may be required to properly perform and complete the work covered by the Scope of the [A]greement." Respondent's proposal of 28 March sets forth a recognition clause con- sistent with that which had been contained in the previ- ous collective-bargaining agreement , as did the Union's proposal of 1 May. No change was made in the proposed recognition clause in the proposals advanced by Re- spondent on 30 May, 11 June, or 27 November, or by the Union's proposal advanced on 21 October, or by any proposal advanced by any party during the course of the negotiations. However, Respondent's answer denies para- graph 6 of the complaint, that being the paragraph set- ting forth the description of the unit. During the tele- phonic pretrial conference and at the trial itself , no reso- lution was reached, though counsel for the parties did agree during the course of the trial to get together at a later point and stipulate to some modified language satis- factory to all parties. The problem here arises from their ' All dates will refer to the calendar year 1985, unless specified other- wise failure to have done so, and from the failure of either party to subsequently mention the matter or bring it up in their briefs. Although I have no hesitance, based on their representation at trial and in conversations with me, in labeling this omission by counsel for the parties as mere inadvertence, rather then the product of a con- scious design to inject another issue into the case, I am not at liberty to infer what their stipulation would have been. For, as I stated at the trial , the allegation regarding the appropriate unit must be treated as though denied. Of course, the burden of establishing every element of a vio- lation under the Act is on the General Counsel . Western Tug Bc Barge Corp., 207 NLRB 163 fn . 1 (1973). And since a finding that bargaining has been sought for a unit appropriate for the purposes of collective bargaining is an essential element to a finding that Section 8(a)(5) of the Act has been violated, a failure of proof regarding it might ordinarily lead to dismissal of the complaint, not- withstanding the strong sense that such failure was due to mere inadvertence on the part of counsel for the par- ties. As has been demonstrated, however, the Union and Respondent have dealt with each other previously, and have had prior collective-bargaining agreements, as well as a number of proposals aimed at securing a new collec- tive-bargaining agreement to succeed the expired agree- ment. Also, as shown above, each of these agreements or proposals contain identical language in their respective recognition clauses. I deem these documents to be suffi- cient evidence, in the absence of countering evidence from Respondent, of the appropriateness of the unit de- scribed in each such document . Accordingly, I find and conclude that a unit consisting of All production and maintenance employees in Re- spondent's plant located at 1136 Richfield Road, Placentia, California, performing work in manufac- turing, fabricating, assembling, contract and repair shops, including the operation of all machines, me- chanical devices and tools that may be required to properly perform and complete the work covered by the Scope of [prior collective bargaining agree- ments between the parties]; excluding all employees who are presently represented through a collective bargaining agreement with other unions affiliated with the AFL-CIO, office and clerical employees, technical and professional employees , guards and supervisory employees constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act.2 B. Background Respondent, a California corporation, has, as noted above, been engaged in the business of fabricating struc- tural steel, as well as the fabrication and installation of plating lines and fuming exhaust systems at its facility in 2 This description is drawn from the several documents mentioned above, referring to the parties previous collective-bargaining agreement and their respective proposals during the course of negotiations, all of which came into evidence as joint exhibits. L. W. LE FORT CO. Placentia, California. Respondent and the Union have had a collective-bargaining relationship for over 40 years. For the last 29 of those years, the Union's business representative, Jack Doore, has either conducted or as- sisted in negotiations toward the successive collective- bargaining agreements with Respondent. On 26 March the Union 's president, George Cowie, wrote Respondent requesting that negotiations be com- menced toward a new agreement to replace that which was due to expire at the end of May. Respondent and the Union thereafter entered into negotiations and, in fact, conducted nine bargaining sessions, on the follow- ing dates: 11 and 25 April ; 1, 7, 13, 17, and 23 May; and 3 and 7 June. The negotiating parties also agreed that all agreements reached on individual issues would be subject to modification prior to full agreement being reached. Fi- nally, the General Counsel notes in his brief that he does not contend that Respondent 's conduct during negotia- tions through 30 May constitutes bad-faith bargaining per se. C. The Alleged Threats 1. Joseph Ennes Jr. Joseph Ennes Jr. worked for Respondent as a welder from 197,7,. until March. During the 9 months preceding the termination of his employment for medical reasons, he served as the Union's shop steward. Ennes recounted that .-sometime in February he was talking with Michael Grant,cone of the two owners of Respondent, who over- sees Respondent 's plant and performs sales work in addi- tion toioperating -as a superintendent and plant manager. According • to. i Ennes, as they talked Grant mentioned that Grant's father, who had operated the plant for many years, had learned - that he was not going to get a pension from the Union, ostensibly because he did not work with tools. Ennes recalled Grant going on to say that he was going to. get out of the Union and that "they were going to try to get the, Union out of the shop altogether.". Under cross-examination, Ennes -testified that Grant told him that both he and his brother Joe were going to resign from the Union and that his father, also named Joe, had been denied a union pension despite having made contributions to the Union 's pensioh fund for a long time. Mike Grant remembered the conversation, despite his inability to place its exact time period . As he recalled, that particular conversation had been preceded by others in which Ennes had expressed curiosity about the efforts of Mike Grant's father to obtain a pension. Mike Grant had been telling him in previous conversations that his father, Joe Grant, was having a difficult time. Mike Grant recalled that as he walked by Ennes that morning, Ennes asked him how his father was doing with his pen- sion and that he responded that he did not think his father was going to get a pension and that his father was pretty upset about it . Mike Grant went on to say that he told Ennes that he was taking himself out of the Union, as was his brother, who is also a member of the manage- ment of Respondent. He explained this as motivated by his understanding that the difficulty encountered by his father was that the trustees of the pension wished to 349 count only the time that his father spent working with his hands in the trade. He denied saying anything to Ennes about what would occur in the upcoming negotia- tions. Grant was not asked specifically whether he had told Ennes that he intended to end the Union 's represen- tation of employees in the shop. I credit Ennes' testimony over that of Mike Grant. Ennes was careful not to enlarge on his statements and successfully withstood a vigorous cross-examination. Mike Grant, in contrast, was not even asked about the specific point in controversy. Accordingly, I find and conclude that the- General Counsel has proven the complaint's allegation that in February Respondent, through Grant, threatened em- ployees by stating that there was not going to be a union at Respondent. 2. James Perez Former employee James Perez worked for Respondent as a welder for about 6 months in 1984 and for about 2 weeks in 1985 . This last period of employment ending immediately prior to the expiration of the collective-bar- gaining agreement, shown by other evidence to have been on 31 May.a Perez testified that one afternoon he was in the shop and was approached by Mike Grant , who told him that the collective-bargaining agreement was to expire in a few days and that he could lay him off so that he would be able to collect unemployment compensation, inasmuch as he knew that the employees were going to walk out on strike. (Perez opted to be laid off.) Perez also went on to testify that Mike Grant said to him that there was not going to be a union anyway, that it was asking for too much, more than Respondent could afford . Perez further testified that he told at least three or four other employ- ees about Mike Grant's statement to the effect that there would no longer be a union at the shop. According to Perez, this conversation with Mike Grant was apparently a followup to a conversation he had had on the previous day with Mike Grant, during which Mike Grant had told him of an incident that oc- curred when he Grant had been in a ball game and had run into the owner of another business such as Respond- ent's. Perez recounted that Mike Grant went on to say to him that he was supposed to "get back" to the owner of the other shop and let him know what came about in the contract negotiations and that he intended to tell the other owner that he Grant could not afford the Union. Finally, Perez testified that only several days preced- ing the conversations with Mike Grant, set out above, he overheard an exchange between Grant and an employee named Preston Williams, who, it developed, is a brother- in-law to Grant . The exchange between Preston Williams and Mike Grant was quite loud and heated, so that all those in the shop could overhear it. According to Perez, Grant stated that Preston and another employee were not working fast enough. When Williams responded that Perez repeatedly asserted that his employment in 1985 was during June. and that the conversation about to be recited occurred immediately prior to 28 June. He was obviously mistaken Mike Grant admitted having this conversation with Perez, and that it occurred prior to I June. 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the blades on the machines he was given to work with were dull and needed sharpening, Grant became upset and called Williams a big cry baby and went on to say that "once we get the Union out" he could fire Williams. Grant testified about these conversations , and admitted that it occurred on the Thursday before the employees voted on whether to accept Respondent 's final offer.4 Grant would have it that he told Perez that he intended to try to settle the dispute with the Union regarding a new collective-bargaining agreement , but he seems in his further testimony to have tacitly acknowledged that he regarded the fact of a strike as a foregone conclusion. And, while he was asked to (and did ) deny that he had said words to the effect that he would try to get rid of the Union, I regard his denial as tepid, and as not quite directly meeting that which he had been accused of, which was that he had simply stated to Perez that there was not going to be a union anyway. Grant also acknowledged that he had had a conversa- tion with Perez on the day preceding that would have been Wednesday, 29 May. He stated that during this conversation, he simply told Perez of a conversation he had with the owner of another business in Orange County on the previous night, and that he merely said to Perez that he had told his counterpart that the Union was asking for a heck of a lot and received a sort of commiserating response. And finally, he acknowledged that he had a dispute with Preston Williams in the shop, which may have been overheard by Perez and others.5 Grant admitted that it was probably true that during the course of the shouting match with his brother-in-law, Preston Williams, in which he upbraided his brother-in-law for being a slow worker, he probably did say that he would "fire his ass," and that he "might have" said something to the effect of "To hell with you and the Union!" Perez was an extremely credible witness despite his seeming inability to get a particular date straight. I have no reason to doubt the truth of the substance of his testi- mony, especially in light of the less than fervent or con- vincing denials put forward by Mike Grant. Accordingly, I find and conclude that Respondent, through Grant, violated Section 8(a)(1) of the Act by threatening employees when Grant told Perez on 30 May that there was not going to be a union, as well as the loud and angry threat overheard by Perez (and prob- ably others) in the shop in the latter part of June when Grant threatened to fire Williams once the Union was out of the way. I conclude that each such threat would necessarily have the reasonable effect on employees of restraining them, and coercing them from engaging in union activities. As far as the conversation between Grant and Perez goes concerning the conversation that Grant recounted 4 This would place the conversation on Thursday , 30 May, because it is conceded by all the parties that the vote concerning acceptance or re- jection of the offer occurred on Saturday , I June. 5 He explained that this occurred shortly following an incident be- tween an employee named Yates and other employees. According to Grant, Yates was subjected to verbal harassment by union adherents which caused him to quit his job and remain off work for a couple of days. that he had had with the owner of another business at a ball game, I do not find that any of the language there rises to the level of a threat . At most, such language is ambiguous or indicative of a state of mind by Grant that he simply did not know what would happen in the future. D. Further Background Facts Regarding the Alleged Refusal to Bargain It seems clear that throughout the bargaining history between Respondent and the Union , they had enjoyed an amicable relationship. Grievances had been few or non- existent. Indeed, the relationship between Grant's father and Doore, the Union's business agent, was such that Doore had literally changed Grant's diapers many years ago. Nevertheless, in early 1985 an incident occurred which, in my opinion, ties at the heart of the Respond- ent's greatly changed attitude toward the Union. Ac- cording to Mike Grant , Doore's boss at the Union is Marvin Haines. Grant recalled that in the summer of 1983 Doore came to him asking him to give a job to Marvin Haines' son, a member of the Union and out of work. Grant testified that both Doore and Haines were old friends of his father and that "it wouldn't have killed me to have an extra helper in the shop"; so out of friend- ship to Haines and Doore, and in consideration of the friendship they had with his dad for many years, he agreed to give a job to young Lloyd Haines. Grant recalled that Lloyd worked there for about a year before being laid off for lack of work and then was recalled after a time . After the layoff he worked for Re- spondent until March or April 1985. In February or March, however, Lloyd Haines, while working at Re- spondent's shop, got into an argument about who was going to use a burning outfit with another employee named Harry Davenport. Their fight was confined to yelling at one another, with no pushing or shoving. Nev- ertheless, Mike Grant got in the middle and broke them up. He told both of them to go back to work and just drop the matter. Davenport, according to Grant , turned and went back to work, but Haines blew up and started cursing, threw his tape measure against the wall, stormed out of the shop, got in his car, and drove away . This oc- curred sometime shortly after the workday had just begun. Young Haines stayed away for the balance of the day. Late that afternoon, Lloyd Haines' father, Marvin Haines, called Grant and asked what was happening. Grant related to him the story set out above . Marvin Haines then stated that his son Lloyd would be back to work on the following morning. Grant agreed. Before their telephone conversation was over , Marvin Haines told Grant that he was going to come by to see Grant. The next morning Lloyd Haines returned to his job with Respondent. Thirty minutes or an hour later, his father, Marvin, showed up and came across Mike Grant in the parking lot. Among other things, according to Grant's undisputed testimony, Marvin Haines told him that he did not like what had happened yesterday, and that his son had told him around the dinner table the previous evening that there were a lot of things that L. W. LE FORT CO. were going on in the shop that he did not like, since he heard that Le Fort was getting away with too much, compared with other shops. Grant responded that he did not know what he was talking about and went on to say that the shop was run according to the Union 's book, and that Respondent has always gotten along well with the Union, since each had shown the ability to give a little bit and sometimes to take a little bit in order to enjoy a good working relationship . Grant was met only by Marvin Haines' rejoinder that he did not like every- one in the shop picking on his son . At that Mike Grant recounted how he, himself, had worked in the shop for his dad for 15 or 20 years and had been picked on be- cause he was the son of the owner and that Lloyd, Mar- vin's son, was going through a little bit of the same thing. Grant testified that Marvin Haines told him that he was not "buying this crap " and went on to remark that Doore was letting Respondent get away with too much. Mike Grant testified that he told Haines, that he did not know what he was talking about and he did not think that he was being fair to Doore, and that they got along perfectly well. Then, according to Grant, Marvin Haines stated "That's bullshit, and if I have to, I'll come down here every day and I'll tell you how to run your company as far as who you will hire and who you will put out on your field jobs." Grant told Haines that he was full of shit, and started to walk away. Then he calmed down a bit and Haines grabbed him . Grant said to Haines, "Look, Marv, I don't know if you are picking on me be- cause I am a new, young owner, or if you think I'm green or what, but I'm not going to stand by and have you come and tell me how to run my business . I don't need you and I don't need your union. If you want to work hand-in-hand like we have done in the past with Mr. Doore and yourself and my father , I'll be more than happy to work out with you people, but you're not going to tell me how to run my own company." Marvin Haines then left. According to Grant, after this incident Doore seemed "just a little bit cold," and there was one grievance filed when Grant laid off Marvin Haines' son, together with three or four other people, because of lack of work. E. The Alleged Refusal to Bargain Briefly recapping, Respondent and the Charging Party were parties to a succession of collective-bargaining agreements for approximately 40 years . The most recent agreement was effective from 1 June 1982 to 31 May 1985. On 26 March the Charging Party's president wrote Respondent a standard reopening letter to begin negotia- tions toward a new collective-bargaining agreement. Re- spondent, through counsel, sent a similar letter to the Charging Party on 28 March and submitted proposals toward a new contract on 29 March. Respondent met with the Union on 11 and 25 April and I May in negotiations. On this last date, the Union submitted a proposal to Respondent. The parties met in further negotiations on 7, 13, 17, and 23 May. On 29 May Doore wrote a letter to all employees cov- ered by the expiring contract, telling them that a meeting 351 would be held on 1 June for them to accept or reject Re- spondent's "last and final proposal for a new working agreement." On 30 May Respondent , through counsel, wrote to Doore stating that Respondent "has just concluded ex- tensive negotiations with you" and that the Respondent "deems that all meaningful negotiations have been con- cluded inasmuch as the major areas of dispute remain un- resolved." The letter went on to recite that it was en- closing a copy of the Respondent 's best and final offer, that if Respondent's enclosed best and final proposal was not accepted by employees and the Union by 1 June that it would deem a bona fide impasse to have been reached, that if not accepted , all proposals from Respondent were withdrawn, and that if not accepted, Respondent intend- ed to implement its final economic proposals . Finally, as recited therein, Respondent's letter to Doore did enclose a copy of a complete proposal. Respondent's employees did meet and vote on the pro- posal before them. They determined to reject it. Howev- er, they did not vote to engage in strike activity and have not done so to date. Instead, the parties met again on 3 and 7 June . As pre- viously noted, and as stipulated at the trial, the parties found themselves continuing to be in disagreement over provisions for union security, checkoff, and pension. On 11 June Respondent through counsel, wrote to the Union that Respondent was unwilling to reinstate certain provisions that had been in its previous proposals having to do with union shop and checkoff, and the Union's pension plan. This letter also enclosed another "final offer" from Respondent to the Union for a collective- bargaining agreement.6 The letter went on to recite that if not accepted by 14 June Respondent would deem a bona fide impasse to have been reached and would auto- matically withdraw all offers. There has been no substantial change in the stance of the parties since that time, except that on 21 October the Union submitted a proposal to Respondent and on 27 November Respondent submitted a proposal to the Union. At the trial the parties were able to stipulate that the differences between them that prevented a collective-bar- gaining agreement from being reached lay in the areas of union security, dues checkoff, and the pension plan. Al- though Respondent admits that it ceased making pay- ments to the pension, health, and welfare funds pursuant to provisions in the expired collective -bargaining agree- ment on 1 June, the parties stipulated further at trial that, should any liability be found on Respondent 's part to have continued such payments, that such liability should end as of 1 December. Discussions and Conclusions The General Counsel concedes in its brief that Re- spondent's conduct during negotiations through 30 May does not constitute bad-faith bargaining per se. Yet he argues that the violations of Section 8(a)(1) of the Act, as ° Albeit, for only 1 year, rather than 2 years, as has been previously proposed. 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD previously found , constitute valid evidence of Respond- ent's mindset throughout these negotiations, and particu- larly, in its presentation of what the General Counsel terms "regressive" collective-bargaining proposals on 11 June. In any discussion of allegations such as these, it is always necessary to briefly review the duties owed to one another by the parties to collective -bargaining nego- tiations. First of all, the Act imposes on employers and unions alike the duty to conduct their negotiations with one another in good faith . The failure of a party to do so may result in a finding that it has committed an unfair labor practice. In cases involving allegations against em- ployers, the violation is of Section 8(a)(5) of the Act, which makes it illegal for an employer to "refuse to bar- gain collectively with the representative of its employ- ees." Second, the obligation to bargain collectively, al- though never satisfied by application of rote or formula, is defined in Section 8(d) of the Act to include the performance of the mutual obligation of the em- ployer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment , or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a con- cession; Determinations regarding good faith must necessarily be made on a case-by-case basis. It must be remembered, however, that some sorts of conduct are deemed so pa- tently contrary to genuine desire to reach agreement that proof of the mere fact of their occurrence will sustain a finding of a per se violation . Actions that fly in the face of the 8(d) requirements have long been considered to be per se violations of the Act's bargaining duty regardless of any other good-faith activities. For example, if an em- ployer were, during negotiations, to make unilateral in- creases in wages, changes in merit wage policy and sick leave policy, all of which are deemed to be "mandatory" subjects of bargaining, it will be held guilty of a per se violation of Section 8(a)(5). When faced with such a situ- ation, the Supreme Court said a refusal to negotiate in fact as to any subject which is within Section 8(d) and about which the union seeks to negotiate, violates Section 8(a)(5), though the employer has every desire to reach agreement with the union upon an overall collective bargain- ing agreement and earnestly and all good faith bar- gains to that end. [NLRB v. Katz, 369 U.S. 736, 743 (1962).] However, obvious per se violations aside, the courts con- sider an employer's entire course of conduct, or the to- tality of circumstances, in determining good-or bad-faith bargaining. The appropriate standard is whether the cir- cumstances clearly indicate "a desire not to reach an agreement with the union ." NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir. 1953). In Altanta Hilton & Tower, 271 NLRB 1600 ( 1984), the Board stated its ad- herence to this "totality of conduct" test to be utilized in deciding whether an employer is, on the one hand, en- gaging in lawful , hard bargaining to achieve a contract that it considers desirable, or, on the other hand, is un- lawfully endeavoring to frustrate the possibility of arriv- ing at any agreement . There the Board specifically reiter- ated that a party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree, citing NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 467 (2d Cir. 1973). Adamant insistence on a bargaining position was again stated to be an insuffi- cient basis for a finding of bad faith in and of itself, citing Neon Signs Corp. v. NLRB, 602 F.2d 1203 (5th Cir. 1979). The Board in Atlanta Hilton Tower recited a number of criteria of bad faith, among which were "un- reasonable bargaining demands," and "unilateral changes in mandatory subjects of bargaining." Nevertheless, the Board held to its old and often stated view that employ- ers are bound to make some reasonable effort in some di- rection to compose differences with representatives of employees, in order that Section 8(a)(5) of the Act be read as imposing some substantial obligation. Although not intending to depart from the General Counsel's concession that Respondent did not engage in activities that amount to per se violations of Section 8(a)(5) of the Act prior to 30 May, it must be observed that Respondent was most certainly engaged in hard bar- gaining and was seeking substantial concessions at all times throughout these negotiations. As Respondent con- cedes in its brief, "the employer wished to delete from the prior agreement and the Union wished to retain the union shop, the dues check-off, and employer contribu- tions to the National Boilermakers -Blacksmith Pension Fund." The Respondent contends that it had sound, competitive business reasons for its positions on these issues, such as the loss of gross volume and profit due to nonunion competition, the Union's inability to supply workers with requisite skills, the Employer's unwilling- ness to compel employees hired outside the Union's hiring hall to join the Union, the increased costs associat- ed with the dues checkoff, the fear of future withdrawal liability under the pension plan, and genuine fear of loss of management controls as a result of the confrontation between Respondent's management and the "local lodge president [sic]." Respondent presented no documentation of any sort at the trial in support of these claims of eco- nomic distress. Nor did the testimony of Grant sustantial- ly assist Respondent's position, for I observed him to tes- tify only in vague and conclusionary terms, even assisted (as he was) by the leading and suggestive questions of his counsel, except regarding the issues of his confrontation with the Union's president. Grant's version of the confrontation is the only version that is in the record. I accept it as evidence of Respond- ent's valid concern at the time it occurred that a real change in its relationship with the Union might be in the offing. However, despite the fact that Grant thereafter L. W.' LE FORT CO. 353 found Doore to be "a little cold," and notwithstanding the fact that one grievance was filed , I see no real war- rant for Respondent concluding that the Union had em- barked on a course remarkably different , in its relation- ship with Respondent , from that which had obtained for decades. Nor, of course, which might legitimize Grant's threatening statements to employees, found previously. Instead, it appears most likely to me that Grant's con- frontation with the Union's president, plus Grant's un- happiness with the failure of the Union to "bend the rules" a bit and provide his father with a pension, were the real motivating factors behind Respondent 's changed bargaining posture in 1985, compared to previous years. Accordingly, I am inclined to find that the changes set forth in Respondent's bargaining proposal following I June to be so regressive as to warrant my drawing the inference, given my understanding of the background set forth above, that Respondent simply had no real intent to seek to compose its differences with its employees. Respondent's proposal of 30 May was rejected by em- ployees and its next proposal was simply to abolish the previous practice and agreement for employees to be hired through the Union, a practice that was shown by the evidence to have been followed between the parties with a true spirit of accommodation for whatever condi- tions were current when a question arose. Its proposal also weakened the previous requirement that 48 hours notice of layoff or recall be given, to pro- vide that it need only be given "whenever feasible." Other changes in provisions concerning qualifying for holiday pay, startup time, the probationary period, a con- tractual duration of only 1 year, and the abolition of any right to compel arbitration feature the Respondent's pro- posal of 11 June. Considering these changes, together with the key issues having to do with the union shop , the dues check- off, and the employer contributions to the pension, health, and welfare funds, it seems very difficult for me to imagine just how the employer could be said to have been making "some reasonable effort in some form to compose his differences with the Union." NLRB v. American National Insurance Co., 343 U.S. 395, 404 (1952). Thus, I would find and conclude on these facts and circumstances that Respondent violated Section 8(a)(1) and (5) of the Act by engaging in surface bargain- ing. There exists other, and even more persuasive evidence of a violation of Section 8(a)(5) by Respondent. This is furnished by the Respondent's unilateral implementation of a health and welfare plan for its employees , and its concurrent cessation of payments to the trust fund pro- vided in the expiring collective-bargaining agreement. Respondent contends that its actions in this regard are privileged by virtue of its having proposed the abolition of the payments to the joint trust throughout the negotia- tions as well as that a bona fide impasse in negotiations occurred on 1 June, when the employees rejected Re- spondent's contract proposal. The law relating to this issue is well settled . If the par- ties to collective-bargaining negotiations fail in good- faith efforts to reach agreement, an employer does not thereafter violate the Act by putting into effect, or im- plementing, provisions that are consistent with proposals previously advanced to the collective-bargaining repre- sentative of the employees and that met with rejection. NLRB v. Williamsburg Steel Products, 369 U.S. 736, 745 (1962); J. Hofert Co., 269 NLRB 520 (1984); Western Newspaper Publishing Co., 269 NLRB 355 (1984). Such failure of agreement is termed an "impasse." In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), petition for review denied sub nom . Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cit. 1968), the Board set forth certain first principles relative to the con- cept of impasse, as follows: An employer violates his duty to bargain if, when negotiations are sought or in progress, he unilateral- ly institutes changes in existing terms and conditions of employment. On the other hand, after bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement , an employer does not violate the Act by making unilateral changes that are reasonably com- prehended within his pre-impasse proposals. Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. In a fairly recent case the Board has demonstrated its ad- herence to the principles announced in Taft Broadcasting. See E. L duPont & Co., 268 NLRB 1075 (1984). It must be conceded that the issues stipulated by the parties as having been those that prevented agreement were each of extreme importance. Thus, it can not be said that the unfair labor practices of Respondent, in threatening its employees' and by engaging in surface bargaining have not fatally flawed Respondent's argu- ment that it engaged in negotiations in good faith. In other words, no matter how deadlocked the negotiations appeared to have been on 1 June, they were tainted by the unfair labor practices of the Respondent . The evident deadlock was prevented thereby from ever ripening into a good-faith impasse, which would have privileged Re- spondent in its unilateral changes in the health and wel- fare system and pension plan. This is so because a dead- lock that is caused by a party who refuses to bargain in 7 Two witnesses testified that while employees of Respondent, they were threatened with words indicating that they could not depend on the continued presence of their collective-bargaining representative in the workplace I have found those threats violative of Sec. 8(a)(1) of the Act. I rind here that they also reached a very substantial portion of Respond- ent's work force, as, according to Grant's testimony, that work force consisted of approximately 19 employees at the time that the threats were made Recalling that in addition to the two employees who heard the threats, there were also three or four others to whom one employee re- peated the threats he had heard, it seems apparent that at least 20 to 25 percent of the Respondent 's total work force was made aware of Re- spondent's threats. The impact of such threats on the Union's base of sup- port among employees, including its ability to obtain stoke authorizaticn, can only be speculated on. 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD good faith is not a legally cognizable impasse justifying unilateral action . Bethlehem Steel Co., 147 NLRB 977, 978 (1964); Northland Camps, Inc., 179 NLRB 36 (1969). See also NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343, 1349 (9th Cir. 1978). Based on these considerations, I find that no impasse existed from and after 1 June and that, as a result, Respondent was not privileged to imple- ment its last and final offers CONCLUSIONS OF LAW I. L. W. Le Fort Company, Inc. is now, and at all times material has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Lodge No. 92, AFL--CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in Re- spondent's plant located at 1136 Richfield Road, Placen- tia, California, performing work in manufacturing, fabri- cating, assembling, contract, and repair shops, including the operation of all machines , mechanical devices, and tools that may be required to properly perform and com- plete the work covered by the scope of (the collective- bargaining) agreement (that expired between the parties on 31 May 1985); excluding all employees who are pres- ently represented through a collective-bargaining agree- ment with other unions affiliated with the AFL-CIO, office and clerical employees, technical and professional employees, guards and supervisory employees constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since at least on or about 1 June 1980, the Union has been the exclusive collective-bargaining representa- tive of all the employees in the unit found appropriate above, for the purposes of collective bargaining, within the meaning of Section 9(a) of the Act. 5. By engaging in collective bargaining without a real intent to reach agreement and by instead engaging in "surface bargaining," by unilaterally changing existing working conditions at a time when no valid impasse in negotiations existed concerning mandatory subjects of bargaining, and by threatening employees that their col- lective-bargaining representative would not be present to a Presuming, at this point, that the implementation of the last and final offer was sufficently "consistent" with the terms previously offered the Union. represent them in the future, Respondent has violated Section 8(a)(1) and (5) of the Act. 6. Respondent has not violated the Act except as set forth above. 7. The aforesaid unfair labor practices have a close, in- timate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has committed vari- ous unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act. Since the violations of the Act disclose an attitude on the part of the Respondent to behave without regard to the rights of its employees, I will recommend to the Board a broad remedy designed to suppress any and all violations of a like or related nature. Hickmott Foods, 242 NLRB 1357 (1979). It will be required that Respondent bargain collectively in good faith with the Union and, if agreement is reached, embody that agreement in a written, signed contract. Re- spondent will also be required to post the usual notice advising employees of their rights and the results of this case. In order that the requirement to bargain in good faith may have meaning, Respondent shall be ordered to rein- state the wages, hours, and working conditions in effect at the expiration of the 1982-1985 collective -bargaining agreement between the parties on 1 June 1985, if request- ed by the Union, and to maintain such wages, hours, and working conditions in effect unless and until modified by agreement with the Union or reaching a valid impasse in negotiations. Because I have found that Respondent violated the Act by discontinuing its payments to the health , welfare, and pension funds provided for the unit employees under the expired collective-bargaining agreement , I shall rec- ommend that Respondent be ordered to restore, on the Union's written request, the health , welfare, and pension program that was in effect previously, and to make pay- ments thereto identical to those that it would have paid had it not unlawfully discontinued payments up until the stipulated cutoff date of the parties of 1 December 1985. Respondent shall also be required to make whole any employees for additional expenses incurred , or insurance benefits lost by reason of its unilateral change in the in- surance coverage, together with interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]