Gilberton Coal Co., Gilberton Energy Corp., Bear Ridge Shops, Inc , Gil Pre Corp. B D Mining Co. And R& R Energy Corp.

344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gilberton Coal Company, Gilberton Energy Corpora ton, Bear Ridge Shops, Inc, Gil Pre Corpora ton, B D Mining Company, and R&R Energy Corporation and International Union, United Mine Workers of America Cases 4-CA-14515 and 4-CA-14812 September 30 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 4 1986 Administrative Law Judge Thomas A Ricci issued the attached decision The General Counsel and Charging Party filed excep tions and a supporting 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 i and conclusions only to the extent consistent with this Decision and Order I REQUESTS FOR INFORMATION This case primarily involves complaint allega tions that the Respondent committed numerous violations of Section 8(a)(5) of the Act with respect to information requested by the Union during the parties protracted contract negotiations in 1984 The judge recommended dismissal of these allega tions in their entirety on alternative grounds First he granted the Respondents motion to dismiss on the ground that the General Counsels dismissal of the Union s charges of general bad faith bargain ing and unilateral changes absent valid bargaining impasse necessarily precluded finding the specific information request violations of Section 8(a)(5) at issue here Second the judge reviewed the merits of the information request allegations on the basis of evidence presented and found no violations We disagree with the judge and reverse his ruling on the Respondents motion to dismiss The General Counsels refusal to include the additional 8(a)(5) allegations in the complaint did not a for tiori mean that the Respondent could not have committed the specific 8(a)(5) violations actually alleged nor did the refusal have any binding effect on the Board s independent adjudicatory review of I The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judges 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 the complaint and evidence presented Based on such a review as set forth below we agree with the judge that with a single exception the General Counsel has failed to prove 8(a)(5) violations al leged Background The Respondent which is a single integrated en terpnse composed of six companies engaged in re claiming anthracite coal was a party to a 3 year agreement due to expire on May 31 1984 2 be tween Anthracite Operators Wage Negotiating Committee (the Association) and the Union The Respondent had been a member of the Association for many years In March the Respondent timely notified the Union that it was withdrawing from the Association and requested separate negotiations for a new agreement The parties held preexpiration negotiating ses sions on May 18 and 22 Prior to and during these sessions the Union requested certain information from the Respondent as further discussed below At the May 30 meeting the Respondent in order to allow more time for bargaining offered to extend the existing agreement subject to a 14 day notice of cancellation The Union refused the offer Instead it proposed that the Respondent could avoid a strike by signing a letter of intent agreeing to abide by the same terms and conditions that were reached between the Union and the Associa tion in concurrent bargaining The Respondent re jected the Union s counterproposal The Union struck the Respondent at midnight on May 31 3 The pickets carried signs reading No Contract No Work Approximately a week later the signs were changed to allege unfair labor practices The par ties continued to meet and exchange proposals and the Union continued to request various information from the Respondent In October after impasse had been reached the Respondent implemented its last offer and hired strike replacements 4 We will now examine the individual allegations that the Respondent violated Section 8(a)(5) by failing to supply the information the Union request ed at various times during the negotiations Al though the judge recommended dismissal of all al legations his analysis of the information request issues frequently failed to identify a specific reason for dismissal of a specific allegation All dates hereafter refer to 1984 We agree with the judge that the strike was an economic one at its inception 4 We disavow the judge s finding that the Union acted in bad faith in bargaining with the Respondent and in requesting information from it 291 NLRB No 50 GILBERTON COAL CO 345 A Financial Information In its letter of March 29 notifying the Union of its withdrawal from the Association and its desire to seek separate negotiations the Respondent stated that it was smaller and more limited in oper ations than the other members of the Association and noted the industry s poor economic condition At the first couple of bargaining sessions, the Re spondent told the Union that it had left the Asso ciation because the coal market was shrinking and that it needed greater flexibility in order to respond to the worsening economic situation It stated that signing a contract containing certain concessions which unlike the Association contract recognized the particular needs of the Respondents reclama tion business was a prerequisite to investing a sub stantial amount of new capital in developing new products facilities and markets At some point during negotiations the Respondent also informed the Union that without changes it would waste away Further the Respondent told the Union that the strike was costing it a lot of money On June 15 the Union wrote the Respondent a letter requesting all the information that the Re spondent had relied on in claiming that it was not competitive under the expired Association con tract In a June 18 letter the Respondent replied that it had relied on steadily declining sales pro duction, and employment over a 10 year period as well as statistics published by the Pennsylvania De partment of Environmental Resources that indicat ed that there was a more rapid decline among unionized than nonunionized coal producers Subsequently on October 9 the Union asked the Respondents vice president, Pierce, to furnish the records that supported the Respondents conten tions that it was losing money The Respondent s October 16 letter to the Union stated in pertinent part I Quite to the contrary of your letter of Octo ber 9 1984 Mr Pierce and I have not ever pled poverty or financial inability of the Companies for which we are negotiating We have offered substantial wage increases and benefit improvements and maintenance of in surance benefits with additional premium costs to be paid by the Companies What we have repeatedly made clear is that there has been a steady decline in sales volume with a corresponding loss of employ ment opportunities In that context, we have provided you with very detailed data both from Company and public records We have indicated that the Companies would be willing to consider capital investment in an effort to reverse the trend, if the Union and the em ployees are willing to enter into a contract which we believe would lead to greater over all earnings by the employees although it would eliminate certain pay for hours not worked and many of the restrictive provisions of the old Wage Agreement R The Supreme Court in NLRB v Truitt Mfg Co 351 U S 149 (1956) held that an employer that ob sects to a union s bargaining demands on the basis that it is unable to afford the union s proposals is obligated to permit the union to examine the books and records to verify the employers contentions In Buffalo Concrete 276 NLRB 839 841 (1985) enfd in relevant part 803 F 2d 1333 (4th Cir 1986) the Board held that it would not assume that an employer who no longer wishes to pay wages and benefits it once agreed to is unable to make such payments' The Board further stated that an em ployer s contention that it wanted to obtain a more competitive position in the industry did not raise a Truitt obligation to provide a union with financial information Here as the Union admits the Re spondent never pled poverty or the inability to pay Rather it desired certain changes from the previous contract in order to make capital im provements to become more competitive We therefore find that the Respondent was not obligat ed to furnish the Union its financial records and accordingly we affirm the judge s dismissal of this complaint allegation B Ash Content of Coal Produced Under the Associations contract that expired on May 31 the Respondent was required to pay royal ties to the Union s pension fund depending on the amount of coal produced and the amount of ash in that coal The smaller the amount of ash in the coal the greater the royalty payment 5 The con tract also called for the Respondent to make monthly reports and contributions to the fund The reports filed by the Respondent stated the ash con tent and the amount of coal produced One of the three trustees in charge of the fund was a member of the International Union On May 1 the Union sent the Respondent a letter asking for information with respect to the ash content of coal produced Two days later the Re spondent consented to the release of all the reports submitted by it to the pension fund The Union s attorney and principal negotiator August Vehar testified that the Union received the reports At the negotiating session on May 18 the Respondent told the Union that the Union s representatives could S The judge erroneously stated that the greater the ash content the greater amount of money the Respondent had to pay the fund 346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD secure the information from an audit that had been conducted by the fund The Union renewed its re quest that the information be furnished directly to it In a letter dated May 21 the Respondent fur nished the Union with tonnage reports for 1981 1982 1983 and the first 3 months of 1984 which included the type of coal produced the ash content of the coal and the royalties paid the fund Fur ther at the bargaining meeting held the following day the Respondent presented the Union with a summary of their 1984 contributions to the fund The Union continued to ask the Respondent for ash content information In mid June the Union re ceived the audit performed by the fund It had been conducted however in 1982 and covered only two of the Respondents companies The Union also requested the work papers compiled during the audit because it believed the Respondent was filing false reports to the trustees The Re spondent refused the Union access to the work papers It informed the Union that any discrepancy between tonnage reports submitted to the various government agencies and the fund was the result of different reporting requirements Finally at a sub sequent bargaining meeting the Respondent asked whether a new more current certified audit from the fund would satisfy the Union Vehar said no We find that the Respondent provided the Union with the requested ash coal content information both directly through the May 21 letter and indi rectly through the authorized release of the month ly reports to the pension fund In the absence of a sufficient evidentiary basis for the Union s suspi cion of fraud we find that the General Counsel failed to establish the Union s need for the underly ing work reports Furthermore we note that the Union rejected the Respondents suggestion of a new updated audit of its royalty payments to the fund Accordingly we dismiss this allegation of the complaint 6 C Corporate Interrelations The expiring Association contract covered all six of the Respondents companies as a single employ er At the start of negotiations for a new contract the Union was concerned with whether the Re spondent was a single employer and/or alter ego of Reading Anthracite which had remained in the Association The Respondent orally informed the Union in the early bargaining sessions of the inter relationships between its six companies including the interchange of personnel and equipment and 6 In dismissing the allegation we do not rely on either the judge s state ment that the Union had access on its own to the requested information or his reliance on the General Counsel s dismissal of the charge alleging that the Respondent had refused to make royalty payments to the fund the sharing of a common office staff and superin tendent The Respondent also disclosed that all supplies were purchased in bulk and that a single health care policy covered all the employees Fur ther it gave the Union full information about stock ownership and the Respondents relationship with Reading Anthracite The Respondent offered to ne gotiate as a single employer either single or sepa rate contracts and asked the Union for proposals on the issue The Union stated that because of in ternal differences among the local unions and bar gaining committees it was unable to present a pro posal Subsequently the Respondent submitted written proposals for a single contract covering all six of its companies In a June 15 letter the Union requested the Re spondent to supply it with information concerning whether the six companies constituted a single employer joint employer or joint venture and/or alter egos The Respondent replied by letter that it had already provided all the relevant informa tion On June 27 the Union repeated its request for information regarding the separateness of the Re spondent s companies We find that the Respondent had already pre sented the Union with sufficient information re garding the structure and ownership of its various companies as well as how they related to each other We also note that the Union was aware from the beginning of negotiations that the Respondent was bargaining as a single employer Accordingly we dismiss this complaint allegation D Culm Bank/Guerna Sale During negotiations the Union asked the Re spondent if it had sold or leased any land to Guerna The Respondent replied that Guerna had purchased a culm bank of coal silt from it and that the documents pertaining to the sale were regis tered in the Schuylkill County courthouse The Union received the documents The Union wished to determine whether it could lawfully picket Guerna as an ally of the Respondent It therefore wrote the Respondent a letter on October 25 re questing information regarding the sale of the culm bank to Guerna including the names of the Re spondent s customers whether the Respondent had removed material from the culm bank, and if so who had been its customers The Respondent re sponded by letter on November 8 It refused to supply the names of its customers in order to serve the Union s secondary boycott tactics The Re spondent also informed the Union that it had re moved material from the culm bank in the past year that it did not have specific records of the GILBERTON COAL CO ' 347 man hours involved and that it had sold the mate real to its customers We find that the Respondent by informing the Union that it had sold the culm bank to Guerna and disclosing where the relevant documents were filed had supplied the Union with sufficient infor mation to satisfy the Union s doubts about the le gitimacy of the sale We also conclude that the General Counsel failed to establish the relevance of the remainder of the requested information regard ing the names of the Respondents customers 7 Ac cordingly we find no merit to this allegation s E Gil Pre During the initial negotiating sessions the Re spondent explained to the Union that its company Gil Pre was engaged in precleaning culm banks to eliminate the majority of the waste products before processing the coal At a subsequent bargaining meeting on July 31 the Union asked the Respond ent how much coal was mined by Gil Pre The Re spondent answered that Gil Pre s reclamation per mits did not allow any mining, but that pursuant to directives by state inspectors to remove an out cropping of coal exposed at one culm bank during the reclamation work it had removed approximate ly 10 000 tons during the last 11 years In Novem ber the Union asked whether the Respondent would be required under its contract proposal to pay royalties into the pension fund on coal re moved by Gil Pre The Respondent stated that such payments did not apply to Gil Pre We find as set forth above that the Respondent sufficiently complied with the Union s request for information concerning the amount of coal mined by Gil Pre and whether the proposed pension plan applied to Gil Pre Accordingly we dismiss this al legation of the complaint F Health and Safety Information The Union on June 27 wrote a letter to the Re spondent requesting a list of contaminants being monitored copies of any cautionary or advisory pamphlets distributed to employees or supervisors regarding the use of chemicals and information pertaining to occupational illnesses under work men s compensation The Respondent advised the Union that a sealed field unit was used to monitor 7 We find it unnecessary to pass on the judge s finding that because the General Counsel had filed a complaint which was subsequently settled alleging that the Union had violated Sec 8(b)(4) by picketing the Re spondent s customers the Respondent was not obligated to supply their names to the Union 8 In the absence of exceptions Member Cracraft finds it unnecessary to pass on the judge s apparent finding that the response to the request for information regarding the sale of the culm bank to Guerna satisfied the Act s i gravity contained radioactive material and was in spected by the Texas Nuclear Corporation The Respondents witnesses testified that no other con taminants were used or monitored by unit employ ees The Respondent also informed the Union that it did not possess either the requested pamphlets or any information concerning occupational illnesses There is no evidence to indicate that the Re spondent monitored other contaminants Also t the only hazardous chemical admittedly on the Re spondent s premises was used exclusively in labora tory testing by supervisors The only credited evi dence about any advisory pamphlets indicates that the Respondent did not obtain such pamphlets until several months after the parties had reached a lawful impasse in the bargaining for which the Union had requested the information Thus the pamphlets were not in the Respondents possession at the time the Union made its request for such in formation as the Respondent was only able to obtain these pamphlets after requesting the manu facturers to forward this information to the Re spondent Accordingly, we find that the Respond ent did not violate Section 8(a)(5) by failing to fur nish further information to the Union G Wages Paid Strike Replacements The Respondent 'started hiring strike replace ments in early October and on 25 October the Union asked the Respondent for the wage rates paid the replacements The Respondent replied by letter dated November 8 that as to their wages hours and conditions of employment see our Sep tember 25 1984 proposal The proposal called for all employees hired after May 31 to be paid $7 75 per hour In the absence of evidence indicating that the Respondent was paying a different rate we find that the Respondent supplied the Union with the requested information H Access to the Facilities for Health and Safety Inspection The Respondents expired Association contract had provided the Union with access to the Re spondent s facilities to inspect health and safety conditions Union officials had visited the facilities on numerous occasions under the old contract During negotiations for a' new contract the Union informed the Respondent that employees had re ported unhealthy conditions at the Respondent s premises, such as the lack of potable water a toilet leaking into a drinking fountain and poor shower conditions On July 19 the Union requested permis sion to tour the facilities in order to check out the employees contentions ' The Respondent refused on the basis that the facilities were shut down and 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union could receive the information concern ing their conditions from the union officials who had visited the premises under the old contract In Holyoke Water Power Co 273 NLRB 1369 1370 (1985) enfd 778 F 2d 49 ( 1st Cir 1985) the Board balanced the employers right to control its property against employees right to proper repre sentation in determining whether a union should be granted access to an employers plant in order to obtain relevant safety and health data The Board stated that access must be granted when responsi ble representation could only be achieved by the Union having access Here inasmuch as the only way the Union could determine the current accura cy of the employees allegations about the un healthy conditions at the Respondents facilities was to visit them and an inspection tour would have caused minimal disruption because the strike had closed the facilities we find that the Respond ent violated Section 8(a)(5) and (1) by denying the Union access Moreover we find that the contracts access pro visions survived the expiration of the agreement Inasmuch as the Respondent and the Union had not yet bargained to impasse on July 19 we con clude that the Respondents unilateral change of these provisions constitutes a separate independent basis for finding that the Respondent unlawfully denied union representatives the right to inspect the premises for unsafe or unhealthful working conditions II INTERROGATION At a prehire interview in February the Respond ent s supervisor Brian Rich asked applicant John Stetts what he thought about the Union Stetts re plied They re pretty good Rich said That s not a very good thing to say to me Stetts later said he could either take the Union or leave it Stetts was hired at the interview and given a dues checkoff card to sign The judge found the inter view not coercive especially with the Respondent having Stetts sign the dues authorization card Ac cordingly, he dismissed this allegation of the com plaint We disagree It is well established that questions concerning union preference in the context of job application interviews are inherently coercive and unlawful even when the applicant is hired 9 Further Rich s statement would reasonably lead Stetts to conclude that his hire and continued employment required him to refrain from expressly supporting the Union 10 Indeed the Respondent did not actually ' Thriftway Supermarkets 276 NLRB 1450 1459-1460 (1985) Quality Drywall Co 254 NLRB 617 (1981) 10 Jones Plumbing Co 277 NLRB 437 439 (1985) hire Stetts until after he had made his more neutral take it or leave it statement about the Union Ac cordingly we find that the Respondent violated Section 8(a)(1) by interrogating Stetts concerning his union sympathies III NATURE OF THE STRIKE Finally we must determine whether the Union s economic strike was converted into an unfair labor practice strike by the Respondents unlawful con duct There is no evidence that the Respondent s single unlawful interrogation of Betts was a factor in precipitating the Union s strike There also is no evidence that the Respondents unfair labor prac tice of refusing the Union access to its premises ag gravated or prolonged the strike Furthermore these unfair labor practices are unlike an unlawful withdrawal of recognition which creates such sen ous impediments to the settlement of a strike that the Board can find conversion to an unfair labor practice strike even in the absence of direct evi dence that the strikers consciously predicated their strike on that unfair labor practice Compare e g Brooks & Perkins 282 NLRB 976 (1987) and cases there cited The strike began and continued be cause of the parties failure to resolve their contract bargaining differences Accordingly we find that the economic strike was not converted into an unfair labor practice strike CONCLUSIONS OF LAW I By unilaterally denying the union representa tives access to the Respondents bargaining agree ment that expired on May 31 1984 and in addi tion denying the Union s request for access by its officials to the Respondents facilities in order to inspect the health and safety conditions that were relevant to the Union s discharge of its bargaining obligation the Respondent refused to bargain in good faith and violated Section 8 (a)(5) and (1) of the Act 2 By interrogating employees about their union sympathies during job applicant interviews the Re spondent violated Section 8(a)(1) of the Act REMEDY Having found that the Respondent violated Sec tion 8(a)(5) and (1) of the Act we will order it to cease and desist therefrom and to take certain of firmative action designed to effectuate the purposes and policies of the Act ORDER The National Labor Relations Board orders that the Respondent Gilberton Coal Company Gilber GILBERTON COAL CO ton Energy Corporation Bear Ridge Shops Inc Gil Pre Corporation B D Mining Company and R&R Energy Corporation Gilberton Pennsylva nia its officers agents successors and assigns shall i I Cease and desist from (a) Unilaterally denying the union representatives access to the Respondents facility as set forth in the collective bargaining agreement that expired on May 31 1984 and in addition by refusing to bar gain, in good faith with International Union United Mine Workers of America by denying the Union s request for access to the Respondents facilities to inspect health and safety conditions that are rele vant to the Union s discharge of its bargaining rep resentative duties (b) Coercively interrogating employees about their union sympathies during job application inter views , (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 reinstate provisions for access by the union representatives to the Respondents facili ty as set forth in the collective bargaining agree ment that expired on May 31 1984 and in addi tion on request grant access by union officials to the Respondents facilities for a reasonable period sufficient to permit the officials to'fully inspect the health and safety conditions , (b) Post at its 1Gilberton Coal Company, Gilber ton Energy Corporation Bear Ridge Shops Inc Gil Pre Corporation B D Mining Company and R&R Energy Corporation, Gilberton Pennsylvania facilities copies of the attached notice marked Appendix I' Copies of the notice on forms pro vided by the Regional Director for Region 4 after being signed by the Respondents authorized repre sentative shall be posted by the Respondent imme diately upon receipt and maintained for 60 consec utive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Re spondent to ensure that the notices are not altered defaced or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 349 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT unilaterally deny the union repre sentatives access to our facility as set forth in the collective bargaining agreement that expired on May 31 1984 and in addition WE WILL NOT refuse to bargain in good faith with International Union United Mine Workers of America by denying a re quest for access by its officials to our facilities in order to inspect health and safety conditions that are relevant to the Union s discharge of its bargain ing obligation WE WILL NOT coercively interrogate employees about their union sympathies during job application interviews 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 reinstate provisions for access by the union representatives to our facility as set forth in the collective bargaining agreement that expired on May 31 1984 and WE WILL on re quest grant access by union officials to our facili ties for a reasonable period sufficient to permit the officials to fully inspect the health and safety con ditions GILBERTON COAL COMPANY GIL BERTON ENERGY CORPORATION BEAR RIDGE SHOPS INC GIL PRE CORPORATION B D MINING COMPA NY AND R&R ENERGY CORPORA TION Bruce G Conley Esq for the General Counsel John W Pelino Esq and Howard A Rosenthal Esq (Pelmo & Lentz) of Philadelphia Pennsylvania for the Respondent , Jonathan Walters Esq (Kirschner Walters Willtg Wein berg & Dempsey) of Philadelphia Pennsylvania for the Charging Party DECISION i 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 r STATEMENT OF THE CASE THOMAS A Ricci Administrative Law Judge A hear ing in this proceeding was held at Pottsville Pennsylva nia on 7 August 1985 and at Reading Pennsylvania on 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 13 14 19 20 and 21 August 1985 on complaint of the General Counsel against six separate companies oper ating as a single integrated employer (the Respondent or the Company) The complaint issued on 8 March 1985 on charges filed by International Union United Mine Workers of America on 16 July 1984 and on 9 January 1985 The essential issue is whether the Respondent vio lated Section 8(a)(5) of the statute Briefs were filed after the close of the hearing by all parties On the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent consists of six separate corporations all operating under common supervision their operations integrated and functioning as a single employer in their labor relations vis a vis the Union here Gilberton Coal Company is engaged in reclaiming fine anthracite coal B D Mining Co performs the same type of operation Bear Ridge Shops Inc does welding and machine shop fabrication Gil Pre Corp is in the business of processing raw culm banks R&R Energy Corporation does hydro processing of anthracite materials Gilberton Energy Corporation is in the business of processing and manufac turing anthracite filter media All of these companies either ship over $50 000 of products to points outside the State of Pennsylvania or receive $50 000 of services from others of the six integrated companies which in turn ship materials directly to points outside the State I find that the Respondent as a combined single operation is engaged in commerce within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED I find that International Union United Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The record of this heanng consists of two very volu minous parts (1) exhibits received in evidence in great number and (2) a very extended transcript of testimony which does no more than belabor without end conflict ing contentions about what meaning should be attached to the unquestioned objective proof shown by the docu merits It is a refusal to bargain case the complaint having issued after 10 months of meetings between the parties negotiations bargaining exchange of proposals etc The General Counsel admits that after 5 months of continuing bargaining the Respondent had a legal right to put in effect which it did its last complete contract proposal which the Union had rejected because in the words of the General Counsel the Respondent had always bargained in good faith Nevertheless 4 days after issuing that written decision he issued this corn plaint which in its entirety alleges that the Respondent had not bargained in good faith during that same period' After careful study of the repetitive argumentative and very revealing testimony of the three principal wit nesses in support of the complaint-their testimony ex tended into almost 5 days of the 6 day hearing-I shall recommend dismissal of the complaint on two separate grounds The first is a ruling on the Respondent s motion filed before the hearing opened to dismiss the complaint a ruling which in no sense relies on any of the testimony given throughout the 6 day heanng that fol lowed The second ground for dismissal is based on my conclusion that on considering the merits of that oral tes timony and additional documents the General Counsel has not proved by a preponderance of the affirmative evidence on the record as a whole the merits of the complaint The two rulings stand completely apart A The Case in Brief This Respondent has long recognized the Charging Party Union as bargaining agent of its employees with the last contract covering the period to 31 May 1984 That contract was negotiated by the Union with the An thracite Operators Wage Negotiating Committee (the As sociation) and this Company like some others agreed to be bound by that contract In March 1984 it notified the Union it no longer would be bound by any agreement between the Union and the Association and that it was giving notice of termination of its contract and a desire to negotiate a new one The Union did not respond until May and the parties then met briefly three times toward the end of the month On the night of 31 May at the very moment the Association contract expired the Union called a strike against the Respondent The signs carried by the pickets then read No Contract No Work Thereafter there were a number of meetings between the parties the Company offering a number of proposals for contract renewal the Union asking for various kinds of information the Respondent giving some as requested and telling the Union it could obtain other information it sought from governmental reporting agencies On 25 September 1984 the Company placed in the hands of the union agents a complete proposal so many pages a com prehensive complete agreement settling all issues The Union rejected it and in October the Company put the entire proposal in effect among its employees With this late in October the Union filed a charge with the Board The essential elements of that charge are that the Com pany violated Section 8(a)(5) of the Act by not furnish ing relevant information as requested and by unilaterally changing conditions of employment meaning of course putting its last proposal into effect without union agree ment Five months later on 4 March 1985 after what must have been a very exhaustive investigation of the facts the Board s Regional Director issued his determination that when the Union put its last offer into effect there had been reached an impasse in the bargaining that the employers have bargained in good faith and that there fore the employers were privileged to implement its last offer The Regional Director decided there was no merit in the charge that the Company had violated Sec tion 8(a)(5) of the Act by that action The Union ap pealed that decision of the Regional Office to the Gener al Counsel of the Board in Washington D C On 9 May GILBERTON COAL CO 1985 the General Counsel in Washington agreed with the Regional Directors decision saying among other things contrary to the contentions on appeal it was concluded under all the circumstances that the parties reached an impasse on 25 September 1985 The parties engaged in lengthy negotiations in good faith proposals and counterproposals being introduced from both sides of the bargaining table The complaint in this proceeding issued as amended on 8 March 1985 precisely lists no less than 19 separate violations of Section 8(a)(5) of the Act by the Respond ent before it put its final offer in effect in October 1984 Each of the allegations speaks of information requested by the Union but not furnished by the Company There are also in the complaint very minor items of later infor mation asked for but not furnished after the October events On 16 July 1985 the Respondent filed a motion with the Board asking for dismissal of the complaint as it now stands because if there was good faith bargaining from May through October 1984-as found by the Gen eral Counsel himself-to say now that in the earlier period the Respondent violated Section 8(a)(5) of the Act is a farce and makes a mockery of the statute On 2 August 1985 the Board put off its decision on that motion and instead referred it to the administrative law judge for initial determination I take this technique to mean the Board felt a more comprehensive picture of what happened would be helpful in its final decision B Ruling on Motion I grant the motion to dismiss the complaint regarding each and every allegation about events that occurred before mid October 1984 when the Respondent imple mented its final offer to the Union The critical phrase underlying this decision is good faith It appears in the statute and has remained unchanged since its original passage in 1935 Under the section entitled Unfair Labor Practices it reads as follows Sec 8(d) For the purposes of this section to bar gain collectively is the performance of the mutual obligation of the employer 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 Throughout the years that one phrase good faith has been the ultimate test in deciding whether a respondent has met the bargaining requirements as set out in the statute It has been used too often to require citation of precedent here In every remedial order to bargain fol lowing findings of violations of Section 8(a)(5) by the Board the order has been to bargain in good faith In every case where the superficial up front seeming col lective bargaining was examined the test was always whether the picture as a whole showed good faith in the negotiations For example see Kayser Roth Hosiery Co 176 NLRB 999 (1969) This is an 8(a)(5) case Indeed the complaint even alleges that the strike which was started on 1 June 1984 was caused by the Compa ny s unfair labor practices How could it have been corn 351 mitting unfair labor practices at the same time that it was bargaining in good faith? To ask the question is to answer it There have been cases where joined with allegations of refusals to bargain there were separate allegations of violations of Section 8(a)(3)-the discharge of a man-or separate allegations of violations of Section 8(a)(1)-co ercive conduct toward individual employees I suppose there could be good acceptable or good faith bargain ing while at the same time such unrelated violations of Section 8(a)(3) or (1) can be found But to say that this Respondent was refusing to bargain-that is what any violation of Section 8(a)(5) is'-while at the same time it was not violating Section 8(a)(5)-that is what good faith bargaining is'-is incoherent reasoning which my mind cannot accept Unlike the situation where the 8(a)(3) or ( 1) violation stands apart from the bargaining process here the separate violations of the statute go to the very heart of the 8(a)(5) violation which was dis missed If there is one thing that proves a refusal to bar gain honestly or in good faith it is the refusal by an employer to furnish information about its operations which are relevant and necessary to make the bargaining coherent and meaningful This is exactly what this Re spondent is now said to have done If in fact it refused to furnish the necessary information about its business how can it be said it in fact bargained so correctly that it was privileged to put the last of its offers in effect unilateral ly9 What the General Counsel is really doing in this case is asking the Board to reverse the original finding-by the Regional Director-that there was no 8(a)(5) viola tion before October 1984 If the Board were to conclude on this record that the Respondent in fact committed all those violations now listed in the complaint before the Company acted unilaterally in implementing its last offer it must compel the Company to undo its past miscon duct and start bargaining all over again in good faith This means stop acting unilaterally or restated undo the effects of its implementation of its last offer Under the scheme of the statute it is the General Counsel who decides when to issue a complaint not the Board If the General Counsel wishes to alter his basic position that the Respondent in fact bargained in good faith up to October 1984 he can consider setting aside his decision of 4 March 1984 and 9 May 1985-dismissing the guts of the Union s charge-and start all over again That possi bility is not my concern Actually the real concern of the Union now as well as of the General Counsel is not an order to bargain The parties met after the October 1984 events and did con tinue their negotiations albeit fruitlessly There is no direct evidence of literal refusal to bargain for the Company never in fact withdrew recognition from the Union What this proceeding really seeks is a finding again specifically requested in the complaint that when the strike started on 1 June 1984 it was an unfair labor practice strike caused by the Company s earlier viola tions May an employer change conditions of employ ment unilaterally while its employees are on strike in protest against its committed unfair labor practices? 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Again to ask the question is to answer it Aware of the weakness of that position the complaint then plays games It says the stake was caused by the May events and was prolonged by the later events Which is it? All this boils down to is that after 20 months of strike and picketing with the strikers having been re placed by the Respondent the Union is hoping in one or another to get their jobs back When unfair labor prac tice strikers offer to return the employer must let go the replacements to make place for the returning strikers That is what this case is really seeking to achieve If ever there was a picture of the clearest economic strike this is it When the parties talked on 30 May after two short and meaningless meetings the very day before the old contract expired the Respondent offered to con tinue the old contract in effect pending negotiations with privilege to either party to terminate it on 2 weeks notice The Union wanted none of that Instead it made a counterproposal It was that the Respondent agree to accept and be bound by whatever might be agreed on in the simultaneous negotiations that were going on be tween the Union and the Association These were the negotiations from which the Respondent withdrew when it advised the Union 3 months earlier that it wished to bargain independently of the Association What the Union was proposing that day was that the talking that would go on between it and this Company would be meaningless just a charade because the Company would already have committed itself with finality to a contract still to be negotiated between two parties with whom it had nothing to do at all It was but another way of saying We are not really going to bargain with you we will just put in a show and when it is over you will be bound by the doings of somebody else What better proof that the Union never intended to negotiate in good faith with this Company? If there was no good faith in the later negotiations it was on the part of the Union not the Respondent whom the General Counsel himself exculpated the following year C Ruhng on the Evidence When the Union first started talking with the repre sentatives of the Respondent on 10 May 1984 for the first time it had no intention of reaching any agreement with this Company in any way different from what it was planning to negotiate with the Association from which the Respondent had withdrawn 2 months earlier The beginning proof of this state of mind is in the fact it did not even respond to the Respondents request for bargaining until it was close to completing its negotia tions with the Association In fact those negotiations were finished and a new contract agreed on between those parties on 2 June 1984 Two days earlier on 30 May the Union made its first proposal to this Respond ent and it was that it agree before any substantive bar gaining took place between them to be bound by what ever contract was reached between the Association and the Union It was not until months later that the Union first came up with any kind of real proposal for renewal at all despite the Company s repeated attempts to get agreement on a number of economic and other contrac tual changes At the hearing long after the events it was shown in an affidavit of August Vehar the lawyer and principal representative negotiating for the Union that he had been instructed by the International Union s office which had sent him on this assignment to make no concession to this Company That the Union had no in tention of agreeing with this Company to any contract establishing conditions of employment different from whatever its agreement was with the Association could not be clearer It rejected the Company s proposal to extend the old Association contract for consecutive 2 week periods and struck instead the moment the old contract expired The truth is that at the moment the strike started the Union had not even entered into the bargaining process On 18 May the first time the parties met Vehar told the company representatives as he himself testified he was not sure he could bargain because the Respondent s withdrawal from the Association had been improper At another point in his testimony Vehar said he did not know whether the six companies which integrated as he always knew they were were in fact a single employer for bargaining purposes He certainly knew it was a single contract binding all the six companies which had just expired and that he was meeting the representative of all six in a single bargaining session He added it was not until 30 May that he became sure of who he was dealing with and what for Again on 12 June 2 weeks after the strike began he asked the company represents tive to sign the contract which 2 weeks earlier had been settled between the Union and the Association To now say as does the complaint that when the strike started it was because the Company had refused to bargain at the Union s request is a pure farce Funnier still toward the end of the hearing the General Counsel called Richard Trumka the president of the International Union to tes tify under oath that the strike was called because of the unfair labor practices already committed by the Re spondent To Trumka s credit it must be said he was honest in his testimony for while stating his opinion about the cause of the strike he candidly admitted he knew nothing about the facts of the case resting his opinion purely on what other officers of the Union had told him His opinion of course has no bearing on the merits of this complaint Before proceeding with the flood of information re quested by the Union two aspects of this record must be made clear The first is that I will consider here only those items of information listed in the complaint about which illegal refusals to furnish are alleged Vehar the main witness in support of the complaint was on the stand for 3 full days and in his talking added a number of other items of information which he said he asked for and was refused Aside from the fact the Charging Party may not add to the complaint which Vehar as a lawyer very well knew his testimony befuddled the record and was an effort to mix up the story so as to make it more convincing not a technique by a lawyer which could add to his credibility The second aspect to be kept in mind is that as a witness Vehar equivocated changed his story avoided answering direct questions and argued so continuously that wherever he is contradicted on this GILBERTON COAL CO 353 record by any other witness I do not credit a word he said His story was too prolonged to be repeated here minutia but some examples will serve the purpose well enough At all the bargaining sessions Vehar was accompanied by David Blitzstein referred to in the record as an econ omist Together they did all the talking for the Union One of the complaint allegations is that from 15 June and thereafter the Respondent refused to grant the Union access to its financial records On this subject Vehar started his testimony with saying the Company had told him and his conegotiator it could not afford to pay the Union s demands He [John Pehno the principal com pany spokesman] said unless there were these changes that the companies will just wither away and die If there were nothing else in this record his total testimony with reference to this one item is enough to discredit him completely To start with the letter of demand on which the allegation rests does not even suggest the demand was predicated on a plea of inability to pay It reads in stead Also please provide us with all the information that you clients have relied on when they claimed they cannot be competitive under the collective bargain ing agreement previously applicable to your clients Although the beginning of his testimony was essential ly that the Company could not afford to pay the Union s economic demands later still on direct he admitted that they had not pled poverty in October but I in not sure Then on cross examination came the following I never made the statement that you were unable to pay Clearly the witness was lying Nothing could be clearer on this record than that the only thing the Re spondent told the Union was that it intended to invest more money in its business to alter its character some what and therefore was unwilling to bind itself to pay what the Union s economic demands were See Buffalo Concrete 276 NLRB 839 (1985) The first complaint alle gation merits no further comment At a number of points in his testimony Vehar was confronted with documents provided by the Company in response to demands for information They were very damaging to his contention that the Company had re fused to give him that information His technique to avoid the obvious result of such documentary proof that his testimony was all wrong was a resort to a device which only added to his very poor credibility He said that that particular document was handed to Blitzstein who sat next to him at the bargaining sessions disassoci ated himself from Blitzstein as though the two had noth ing to do with one another I have not examined the substance of that That was examined by Mr Blitzstein Again [H]ave you checked any other source on that in formation? A I have personally not That was in the control of Mr Blitzstein I believe Mr Blitzstein is independent of me I understood that Mr Blitzstein was being an independent person from me It is difficult to believe such a statement would come from a lawyer pre sumably an expert in the field of labor law Again had he seen any of the documents? I didn t say I didn t see any of the documents but I did not examine them I did not examine all of the carefully The witness testimony is shot through with evasion after evasion Had he seen a certain complaint? Q Have you not seen this complaint? A I have not reviewed the complaint I have seen it but I have not reviewed it Asked had the Company said it was willing to nego bate all the contract his answer was No not in those words He was told that one of the items of information he wanted could be obtained by requesting an audit from a certain union fund Did he know he could get that9 I knew we could ask anybody for an audit including the Office of Surface Mining Q Did you know that this was a Federal agency that you could ask for an audit and get one? A Not and get one no I did not know that Finally did he request the audit9 First Vehar answered yes then added that he could not recall At another point this witness whose testimony went to the heart of the case about just what was asked for and what was produced avoided the cross examiner with the phrase my memory is foggy On 1 May 1984 before arranging any meeting for bar gaining as the Company had earlier requested the Union sent a letter listing no less than 18 separate items of in formation about the Company s method of operations Only two of these appear in the complaint as something the Company should have supplied This means of course that even in the General Counsels opinion 16 of the 18 items represented no more than a harassment tech nique intended to delay the bargaining and had nothing to do with the proper subjects of collective bargaining That letter is a perfect example of the Union s attitude throughout the events recorded in this record Two of the items mentioned in the original complaint asked for the number of employees who had worked in each shift during the last 2 month period and the number of sick days paid by the Company during that same period Regarding what this information had to do with the bargaining that was to take place for conditions of employment that were to govern tomorrow no coherent explanation was given Asked why he had asked for this information relative to sick leave Vehar answered He did not know It obviously was not related to any de mands the Union ever made on the Respondent Even so the Company s principal negotiators did describe to the union agents the total operations of these six companies involved as well as state the number of employees work ing on a shift The Union was also given the entire pay roll costs for the period in question The Union also got the totals paid by the Companies for sick leave from which the union agents could easily calculate how many days of sick leave had been involved In fact Blitzstein had actually figured that out himself This question about sick leave and days worked in the past therefore present nothing in support of the complaint Another complaint allegation is that the Company failed to supply information pertaining to illnesses under the workmens compensation claims during the past 3 years in the words of the Union s demand The Union knew as was admitted at the hearing that illnesses stand apart from accidents or injuries under the Pennsylvania 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Workmen s Compensation Law Indeed they did not know of anybody who had been taken sick at all Vehar said We don t know if there s really any problem even if there isn t a problem yet we want to make sure that one doesn t develop in the future When the corn pany representatives asked for any individual instances of illnesses the Union said that they knew of none It ended with the Company saying if the Union heard of any problems it could bring them to the Company s atten tion which would then hire an expert to look into the problem Why this sort of information request was put in the complaint I am at a loss to understand The Union wanted to know how much the Company was paying the strike replacements to work and the General Counsel put that tern into the complaint also The Union did not have to ask because it knew as the Company had told it that the pay conformed with the contract it had put in effect in October the one which the Union had rejected Does the employer have to tell the union how it is managing to continue its business while the union carrying on an economic strike is trying its best to shut it down completely so it will just die? The Union also demanded to see the individual agree ments between the Company and any strike replace ments Later the Union expanded this request to include probationary agreements The only agreement this Company has with individual employees is a confiden tiality agreement to protect the Company s patent rights Aside from that the Company had some employ ees sign agreements to a 30 day probationary period Ap parently this was in conflict with the contract which the Company had implemented unilaterally It would seem the Union was attempting to enforce the same contract which it was simultaneously saying in its then pending charge was illegal a violation of Section 8(a)(5) Can a union at the same time enforce a collective bargaining agreement while litigating its legality? In any event the Company stopped making strike replacements agree to probationary agreements The Union filed a charge with the NLRB on this so called violation of the contract by the Company It also filed charges accusing the Compa ny of changing supervisory work of not adhering to the proper grievance procedure of not furnishing necessary information for processing grievances All those charges were dismissed by the Regional Office on 27 June 1985 because there was no contract in effect therefore the Union had nothing to complain about In the face of those dismissals the General Counsel went ahead and added some of those items as further unfair labor prac tices in this complaint In mid July before the Company implemented its pro posal of new working conditions the Union asked for permission to tour the workplace The old contract did provide such privilege to the union agents The Re spondent s refusal to permit the union agent to inspect the premises is also called an unfair labor practice in the complaint Conditions of employment are one thing- how much people are paid what their fringe benefits are and things of that kind How the union may represent the employees vis a vis the employer is something else again Although a collective bargaining agreement may provide for such arrangements they do not involve the employees conditions of employment and therefore they do not survive expiration of the contract There is no ment in this complaint allegation now Some of the complaint allegations are worded in the exact phrases used by the Union in sending its demands to the Respondent They are so detailed so repetitive so miniscule-page after page-that to list all of them here in this decision would be pointless A single example will suffice Identify all persons who currently perform or who have performed since June 1 1984 clerical administrative bookkeeping managerial engineer ing estimating or other services for each of your six clients As to each such such [sic] person identi fy the exact nature of the services performed for each of the six clients If the person now perform ing any or all of these functions has changed since June 1 1981 identify the dates during which each function was performed by each person If the person performs similar functions for more than one client identify the procedures that exist by which the clients determine how to compensate the person for these services and the date these procedures or any changes in these procedures took effect Identify all persons who now perform or who have performed supervisory functions for each of your six clients since June 1 1981 and state the nature of the functions performed by each such person for each of the six clients If such personnel has changed since June 1 1981 identify the dates during which each person performed supervisory functions for the respective client If the persons performs similar functions for more than one client provide the same information as requested in the preceding question These incredibly detailed requests for information (going back 4 years) asked for a month after the strike started-prove more than anything else that the Union was not really interested in negotiating a contract renew al with this Respondent All it sought was continuing delay These unending demands are interlaced with a demand to know the names of all the customers of the Respond ents to which it sells its products The Union s argument in justification of all these requests is that there was a question whether the Respondent was bargaining as a single employer or whether it wanted a separate and dif ferent contract for each of the separate corporations The expired contract was a single one covering all these companies as a single employer as the union representa tives knew It was signed by Pierce the negotiator in the case at bar using only the name Gilberton Coal Compa ny The Union also knew as the record amply shows that there was interchange of personnel there was a single business office with a common staff a single su perintendent of all production and maintenance with a single location all supplies were purchased in bulk and a single health care policy covered all the employees The Respondent also gave the Union full information about GILBERTON COAL CO 355 stock ownership and intercorporate relationships From the start the Respondents bargaining proposals included a combined seniority system joining all the companies to gether When the last offer which the Union rejected was put in effect it named all six companies as a single employer If there existed any questions about the single employer concept it was because of internal conflicts within the Union Locals which represented the employ ees of the Respondent at its different locations Some of these employees preferred keeping separate seniority rights for fear of being bumped by employees from the other locations I do not think the Respondent was obli gated to research its past operations-as far back as 1981-to satisfy this unwarranted curiosity of the Union which I deem as no more than a delaying tactic to fore stall good faith bargaining The Respondent admits it refused to give the Union the names of its customers Apart from the fact that such information bears no relationship to the conditions of employment of these employees-the only concern of the Union under the statute-the Respondent had ample reason to withhold such information On 3 October 1984 it filed charges against the Union for bringing illegal pressure on its customers to force them to cease doing business with the Respondent and the General Counsel issued a complaint based on that charge alleging viola tions of Section 8(b)(4) of the statute I can think of no better justification for a struck employer to withhold the identity of its customers from the striking union The talking between the parties continued even after October when the Company s complete contract propos al had gone into effect The complaint now says that on 28 November the Union wanted to know whether a proposed pension claim would apply to Gil Pre one of the six companies which constitute the single Re spondent Does this mean the Company had by that time proposed changes in the conditions of employ ment? Does it mean the Union did not understand the fully written contract which in fact was then in effect? I do not know In any event the record shows that the company representatives more than once told the Union such payments did not apply to Gil Pre under either the old or the new contract Whatever the case the contract was in effect it was written and whatever it meant it meant I do not understand how the question of the meaning of a contract term could evolve into an unfair labor practice Finally we come to the requested information which was belabored throughout the record without end The Company contributes money to the Union s pension fund the amount depending on the amount of coal pro duced and the amount of ash found in the coal produced The greater the amount of coal and the greater the amount of ash in the coal the greater the amount of money the Company must pay to the fund This money payment is referred to as royalties payable by the em ployer The first thing the Union did on 1 May 1984 before responding to the Respondents request to meet and bar gain was to send a letter asking for information with re spect to ash intake of coal produced That same phrase appeared in the complaint describing information which the Respondent allegedly in violation of Section 8(a)(5) of the Act failed to produce Before getting to the facts which show the Union had access to and did obtain the requisite information from authoritative sources there must be mention of a reality that logically dictates dismissal of this aspect of the case without question While examining the audit reports given to it by the fund as requested and as authorized by the Respondent the Union filed a charge with the Na tional Labor Relations Board accusing the Company of the 8(a)(5) violation by refusing to make royalties pay ments on coal produced On 12 July 1985 the Board s Regional Director dismissed that charge saying I find that the allegation of the charge that the Em ployers violated Section 8(a)(1) and (5) of the Act by failing to make royalty payments on coal pro duced for use or for sale lacks merit The Union contends that the Employers have under reported their coal production to the pension fund The Employers contend it has complied with its obliga tions to the pension fund Thus the parties have a dispute as to the Employers compliance with their reporting and royalty payment obligations It is well settled that not every breach of a contract also con stitutes an unfair labor practice The Board has held that it will not enter a contractual dispute to determine which parties interpretation of the con tract is correct There was no appeal from the Regional Directors dis missal of that charge If one issue-whether an employer is not complying with the terms of a collective bargaining agreement- does not touch on an unfair labor practice under the stat ute how can failure to discuss it or to show the Compa ny s records about it constitute an unfair labor practice? Again a final time to ask the question is to answer it no Actually the Union always did have access to the in formation in question-how much coal was produced and what was its ash content The Association contract in effect during the period for which the Union wanted to know required the Companies to make monthly re ports and contributions to the Anthracite Health and Welfare Fund (Pension Fui d) The information to be filed by the Companies had to be accompanied by sworn affidavits to their truths The Respondent consented to have the fund release all of its reports it had filed with the fund It even handed the Union a summary of all the contributions it had made to the fund throughout 1984 The Union was entitled to have audits from the fund pre pared by certified public accountants Of the three trust ees in charge of the fund one was a member of the Inter national Union surely a safeguard for the Union here There is even a letter to the Charging Union from the attorney for the fund verifying that the audits which the Union had received had been conducted for the very purpose of assuring proper contributions by this Re spondent The Union therefore had all it could want and more 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shorn of all the verbiage and argumentation that came from Attorney Vehar throughout his testimony what it amounted to was that he felt-with no evidence at all- that this particular company had been filing false reports to the fund s trustees and that therefore he wanted to look at the original records of the Respondent those on which it had submitted its periodic reports and payments to the fund Asked after much bickering at one meeting after another whether a new more current certified audit from the fund would have satisfied him Vehar s answer was a simple no It is clear to me that all the Union s principal negotiator was trying to do throughout these protracted bargaining sessions was to stall the ne gotiations to create problems where there were none and to avoid having to come to terms with the Respond ent As I look at the total picture revealed by this over long record transcript I agree with the original decision reached by the Regional Director before he issued this complaint that this Respondent had always bargained in good faith and that it did not commit any unfair labor practices before October 1984 D The 8(a)(1) Allegations John Stetts was hired by the Respondent in February 1984 He spoke to Brian Rich then a superintendent Stetts testified that in the general conversation after talk ing about good schools and football and everything like that Rich asked him what did he think about the Union When Stetts said They re pretty good Rich came back with That s not a very good thing to say to me As they continued to talk Stetts said he could take it or leave it and Rich then said [T]hat s the problem with unions and all they started like 40 years ago and like I just agreed with him and he just gave me the job then Rich then had the applicant sign a dues checkoff card so he could join the Union Two months later Stetts was released according to seniority and then rehired He worked continuously until the strike Rich did not testi fy I find nothing improper in the general conversation that took place that day between the two men especially with the supervisor having the man sign into the Union then and there Rossmore House 269 NLRB 1176 (1984) Louis Wolfgang testified that on or about 4 October 1984 Frederick Israel a company superintendent called him on the phone and asked How did the meeting go and that he answered I don t care to discuss it The witness explained the meeting had been held the day before to discuss a letter the Company had sent to all the employees asking them to consider the Company s offer and to return to work The General Counsel calls this questioning by the superintendent illegal interrogation in violation of Section 8(a)(1) of the Act As the witness continued to ask questions it then de veloped that it was he who had first called the Company that day to talk to Pierce the Respondents chief negoti ator at the bargaining sessions then in progress Wolf gang said he had called to ask Pierce something about the letter the men had received because he wished to ask whether the men would be discharged if they did not return Pierce was not available and therefore Israel called Wolfgang back to ask why had he called All this means is that the conversation now called unlawful was started by the employee not by the agent of the employ er In the circumstances with the employees wanting to know whether he would be fired-but nobody ever told that to the employee-and the supervisor responding only with asking was he coming to work I find nothing violative of the statute as having occurred Two strikers testified about telephone calls they re ceived at home at the end of October 1984 from Edward Shearn a security guard working for the Re spondent to guard the premises Shearn is the police chief in a joining town and with his sons has an agree ment with the Respondent to protect the Company its property He runs the Shearn Detective Agency servic ing other companies as well Donald Lotshaw a striker testified that Shearn told him there was work available that the Company was planning to expand that the working conditions would be very favorable Shearn also said according to Lotshaw that if the men wished he would set up a meeting for them with Rich one of the owners When Lotshaw called Rich a liar still according to the witness Shearn told him don t let the goons from West Virginia tell you what to do John (Jackie) David also a striker quoted Shearn as telling him on the phone how come the men weren t back to work that he was talking to Jack Rich and that Jack Rich told him to relay a message that work was available At that point David simply answered that the men were on strike Shearn then said still ac cording to the witness that I should talk to the men to try to get the men to go back to work When David came back with I couldn t do it that we have union representatives up here from the International Shearn said What the hell where you listening to those sons of bitches for from Pittsburgh and Washington Shearn then added Why don t we have a vote by writing in stead of a raise by hands vote Shearn s final statement as the witness recalled was if we wanted to get togeth er he could call Jack Rich or that Jack Rich was sug gesting that we would get together with him Asked to repeat the witness then said He had told me that Jack Rich wanted to get together with us to discuss the pro posal Called as a defense witness Shearn said that one evening one of his sons told him several of the stnkers had asked him (the son) would he call Rich to find out whether the jobs were still available to the strikers and that as a result he telephoned Rich to ask if the jobs were still there Rich said they were and therefore as Shearn continued to testify he called some of the strikers whom he knew as neighbors where he lived One of the men responded by telling him to telephone Jackie David because he was the president of the Local Union Shearn did and when he said the job was still available to the strikers David asked him could he arrange a meeting be tween the strikers and Rich personally at Gilberton Shearn s answer was he would have to be nuts to meet you down there Shearn explained this comment be cause of the animosity that had developed in the course of the strike GILBERTON COAL CO Shearn denied any member of the Respondent ever asked him to negotiate on their behalf or to call any of the strikers or to arrange a meeting of any kind He also testified he never asked Rich would he meet with the strikers Shearn s final statement was that he did what he did out of the goodness of my heart I do not think the General Counsel has carried the of firmative burden of proving Shearn was an agent of the Respondent It is an old principle of law that agency is not proved out of the mouth of the agent It takes some thing more In his brief the General Counsel relies on the fact Rich was not called as a witness But a void is not enough to fill a requisite positive Cf Westward Ho Hotel 251 NLRB 1199 (1980) Clearly the arrangement be tween the Respondent and this detective agency had 357 nothing to do with employee relations In fact a written communication from the Company to Shearn personally sent in August 1984 while listing a number of many obli gations toward security says not a word about any com munication between the guards and the employees on behalf of the Company Shearn was honest enough not to deny his expressions of dislike toward the union offs cers blaming them for the industrial dispute that was hurting the employees I have no reason not to believe his further statement that no member of management ever asked him to discuss the dispute in progress with the strikers I shall therefore recommend dismissal of this allegation of the complaint also [Recommended Order for dismissal omitted from pub lication ]