C-Line Express

638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C-Line Express and Teamsters, Chauffeurs, Ware- housemen & Helpers Local 490, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Case 20-CA-19984 January 23, 1989 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 20, 1988, Administrative Law Judge George Christensen issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order, We agree with the judge that the strike, which began on October 16, 1985, was at its inception an economic strike and that during the strike the Re- spondent engaged in certain unfair labor practices.2 We do not, however, agree with his additional finding that those unfair labor practices converted the economic strike into an unfair labor practice strike. The Board has long held that an employer's unfair labor practices during an economic strike do not ipso facto convert it into an unfair labor prac- tice strike. Rather, the General Counsel must estab- lish that the unlawful conduct was a factor (not necessarily the sole or predominant one) that caused a prolongation of the work stoppage. As the First Circuit Court of Appeals aptly observed in Soule Glass Co. V. NLRB, this search for a causal ' The Respondent has excepted to some of the judge's credibility find- ings . The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The judge found, and we agree , that during the strike the Respond- ent violated Sec. 8(a)(1) of the Act when its owners, George James and Hank Betcher, threatened certain strikers with discharge and informed them that it would not sign a contract with the Union, and violated Sec. 8(a)(5) and (1) by refusing to furnish the Union with information pertain- ing to the Respondent's alleged sale of its trailers to, or the purported use of those trailers by, another company, Napa Valley Trucking. We also agree with the judge's finding, to which no exceptions were taken, that the parties reached a valid impasse on October 3, 1985, in their negotiations for a new contract , that the Respondent did not engage in any unlawful conduct prior to the strike, and that the Respondent law- fully implemented its contract proposals on October 14, 1985. link is often problematic, leading the Board to rely on both objective and subjective considerations: Applying objective criteria, the Board and re- viewing court may properly consider the prob- able impact of the type of unfair labor practice in question on reasonable strikers in the rele- vant context. Applying subjective criteria, the Board and court may give substantial weight to the strikers' own characterization of their motive for continuing to strike after the unfair labor practice . . . . However, in examining the union's characterization of the purpose of the strike, the Board and the court must be wary of self-serving rhetoric of sophisticated union officials and members inconsistent with the true factual context. [652 F.2d 1055 at 1080 (1st Cir. 1980).] In many cases, the record will afford the Board an opportunity to evaluate the employees' knowl- edge of, and subjective reactions to, an employer's unlawful conduct in order to confirm that it inter- fered with a settlement of the strike and thus pro- longed the work stoppage.,' However, the presence or absence of evidence of such subjective motiva- tions has not always been the sine qua non for de- termining whether there has been a conversion. Certain types of unfair labor practices by their nature will have a reasonable tendency to prolong the strike and therefore afford a sufficient and inde- pendent basis for finding conversion. The most no- table examples typically involve an unlawful with- drawal of recognition, which may be accompanied by a course of other unlawful conduct including withdrawal of contract proposals, refusals to meet and bargain, and recognition of another union.4 The common thread running through these cases is the judgment of the Board that the employer's con- duct is likely to have significantly interrupted or burdened the course of the bargaining process. Thus, when an employer has unlawfully withdrawn recognition from the bargaining representative or 8 Compare Powell Electrical Mfg. Co., 287 NLRB 969 (1987) (conver- sion found, based in part on information presented to employees prior to strike vote), with Reichhold Chemicals, Inc., 288 NLRB 69, 71 (1987) (conversion not found in view of fact that employer's unfair labor prac- tice was not matter that was discussed prior to a strike vote). 4 Powell Electrical Mfg. Co., supra, 287 NLRB 969, 970; Vulcan-Hart Corp. v. NLRB, 718 F.2d 269, 276 (8th Cir. 1983) (". . . withdrawal of recognition clearly prolonged the strike , because it put an end to contract negotiations."), enfg . 262 NLRB 167, 168 fn. 4 (1982 ) (because employees had earlier indicated that they would not end strike until contract reached, subsequent withdrawal of recognition found to be "an event which would preclude a contract from being reached," thus prolonging strike); Brooks & Perkins, Inc., 282 NLRB 976, and cases cited (1987) ("The Board has invariably concluded that the unlawful withdrawal of recognition prolongs a strike" ); Walker Die Casting, 255 NLRB 212, 225 (1981), enfd . as modified 682 F.2d 592 (6th Cir . 1982), cert. denied 461 U.S. 905 ( 1983); Randle-Eastern Ambulance Service, 230 NLRB 542, 552 (1977), enf. denied in part 584 F.2d 720 (5th Cir. 1978). 292 NLRB No. 63 C LINE EXPRESS engaged in bad-faith bargaining during an econom is strike, and it appears from the record that such unlawful conduct necessarily prolonged the strike, the Board has found that the economic strike has converted to an unfair labor practice strike See Powell Electrical Mfg Co, and Brooks & Perkins Inc , supra Turning to the facts of this case, with respect to the state of mind of the strikers we find a lack of evidence that the strikers were motivated to pro- long their strike by the 8(a)(1) coercive statements of the Employer's two co-owners to several of the employees on the picket line Nor is there any evi dence in the record to indicate that the strikers were even aware of the Respondent's unlawful re- fusal to comply with the Union's request for infor- mation concerning the alleged sale of several trail ers to another company In fact, the record is devoid of any evidence showing that the strike was motivated by anything other than the parties' in- ability to reach agreement during an admittedly lawful impasse Similarly, as an objective matter, we cannot say that the unlawful conduct found here was of such frequency or magnitude as to have prolonged the strike At first blush, the co owners' coercive com ments stating an intent "to go broke" and "shut the door" before signing a contract would seem to manifest the kind of intransigence that would nec essarily prolong the strike But the General Coun- sel did not argue that these statements reflected a serious intent to refuse to bargain No bad-faith bargaining claim was either alleged or proven Likewise, there is no evidence that the Respond- ent's co-owners tried to make good on their threats to discharge certain employees during the strike, and thus, we do not confront the problem of un lawful discharges creating a new issue against which to protest and delaying resolution of the strike Finally, while there may well be situations in which an employer's unlawful refusal to provide information may obstruct the progress of bargain mg over the economic issues over which the strike is being waged, we do not think that the informa tion requested and refused here falls into that cate- gory Shortly after the strike commenced, the Union made an information request asking for the particulars surrounding the sale of the Respond ent's trailers and, in addition, asking for informa tion regarding the impact of the sale on unit em- ployment and regarding the hiring of strike re placements It is undisputed that the request was ignored Although this information was clearly rel- evant to the Union in exercising its responsibilities as the exclusive bargaining representative of unit 639 employees, and we affirm the judge's finding that the Respondent's refusal to provide that informa- tion was violative of Section 8(a)(5) and (1), the in formation requested was not germane to the issues that stood in the way of the parties reaching agree ment on a contract Thus, in the absence of any evidence that this was known to the strikers or that it was linked to an issue that was proving an obsta- cle in negotiations, we decline to assume that it prolonged the strike In sum, we conclude that the General Counsel did not sustain her burden of showing a causal nexus between the Respondent's unfair labor prac tices and the continuation of the strike The strike, which began on October 16, 1985, remained an economic one until it ended on January 30, 1986, when the strikers unconditionally offered to return to work As the employees who unconditionally offered to return to work on January 30, 1986, were eco- nomic, rather than unfair labor practice strikers, they were entitled to immediate reinstatement only if they had not been permanently replaced by the Respondent 5 However, as correctly found by the judge, the record fails to establish whether the re- placements hired by the Respondent soon after the strike began were temporary or permanent replace ments 6 If the replacements were temporarily hired, then the Respondent's refusal to reinstate the economic strikers when they unconditionally of fered to return to work on January 30, 1986, violat ed Section 8(a)(3) and (1) of the Act, and the strik ers would be entitled to immediate reinstatement and backpay If the Respondent hired permanent replacements, then no violation occurred because the strikers would be entitled to reinstatement only on the departure of their replacements Lacking such evidence, we find it necessary to remand this matter to the judge for the sole purpose of deter mining if the economic strikers were temporarily or permanently replaced and, if necessary, to deter mine whether any or all of the strikers are entitled to reinstatement and backpay The judge shall be authorized to reopen the record, if necessary, to re ceive evidence relevant to this issue On determin ing whether the Respondent violated Section 8(a)(3) and (1) in refusing to reinstate the economic strikers, the judge shall issue a supplemental deci- sion and order 5 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 (1970) 8 The record indicates only that the parties stipulated at the start of the hearing that the Respondent hired 14 replacements during the onset of the strike The record does not establish the status of the replacements 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that this matter is remanded to the administrative law judge solely for the purpose of determining if the economic strikers were tempo- rarily or permanently replaced and whether any or all of the economic strikers are entitled to reinstate- ment and backpay. The administrative law judge is authorized to reopen the record, if necessary, to re- ceive additional evidence relevant to this issue. Thereafter, the judge is instructed to issue a supple- mental decision, including findings of fact, conclu- sions of law, and a recommended Order, consistent with this remand Order. Copies of such supplemen- tal decision shall be served on all parties, after which the provision of Section 102.46 of the Board's Rules and Regulations shall apply. Donald R. Randall, for the General Counsel. Michael P. Merrill (Merrill & Thompson), of Santa Rosa, California, for the Respondent. Tom Williams, of Vallejo, California, for the Charging Party. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On November 3-5, 1987, I conducted a hearing at Val- lejo, California, to try issues raised by a complaint issued on January 27, 1986, as amended on April 29, 1987, based on original and amended charges filed by Local 490 (Union) on November 6 and December 6, 1985, and March 19, 1986. The issues are whether, as alleged in the amended complaint and denied in the answer, C-Line Express (C- Line) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (Act) following the expiration of an agreement between C-Line and the Union covering C- Line's drivers and whether the strike called by the Union following negotiations was an unfair labor practice strike. The General Counsel and C-Line appeared by counsel and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Both filed briefs. Based on my review of the entire record, observation of the witnesses, perusal of the briefs and research, I enter the following FINDINGS OF FACT1 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged , the answer admitted, and I find at all pertinent times C-Line was an employer engaged in ' Although every apparent or nonapparent conflict in the evidence has not been specifically resolved below, my findings are based on my exami- nation of the entire record, my observation of the witnesses' demeanor while testifying, and my evaluation of the reliability of their testimony; therefore any testimony in the record that is inconsistent with my find- ings is discredited. commerce in a business affecting commerce and the Union was a labor organization within the meaning of Section 2 of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts C-line was and is a local cartage hauler with facilities in Napa, California. In 1978 George James and Hank Betcher, C-Line drivers, members of the Union and cov- ered by a collective-bargaining agreement between C- Line and Union, each purchased 50 percent of C-Line stock and assumed control. The new owners2 of C-Line agreed to observe the terms and conditions of collective- bargaining agreements titled the "National Master Freight Agreement Covering Over-the-Road and Local Cartage Employees of Private, Common, Contract and Local Cartage Carriers" and the "Joint Council No. 7 Local Pickup and Delivery Supplemental Agreement" with respect to C-Line drivers until the March 31, 1985 expiration of those agreements, with one exception-at the inception of those agreements, C-Line and the Union agreed C-Line drivers would be paid $11.1.1 per hour rather than the higher rates set out. Following the March 31, 1985 expiration of the agree- ments, C-Line and the Union met 10 times to negotiate a new agreement. During that period, Richard Carroll, Daniel Fisher, Jeffrey Frank, Denton Fry, Vernon Hoover, Matthew Limpic, George Mattioda, David Neu, Frank Olmsted, Robert Pieri, and Paul Stornetta were employed by C-Line as truckdrivers.3 A number of provisions within the two agreements specifically applied to casuals; covered employers were authorized to employ casuals under limited circum- stances; required to employ casuals by request addressed to the union hiring hall; required to pay casuals the con- tract rate for hours worked and to make payments on behalf of casuals for each hour worked into funds estab- lished under the agreements; and (under the current sup- plemental agreement) to grant regular employee status to any casual who worked 20 days or more within 3 con- secutive months (casuals were specifically denied the se- niority protections afforded regular employees). C-Line's dispatcher hired both Fry and Mattioda after they were sent by the Union's hiring hall to C-Line's premises in response to a telephone call by the dispatcher for two drivers. Fry was hired during the week ending July 12, 1985, and worked 3 days that week; 5 days during; each of the 2 The complaint alleged, the answer admitted, and I find at all perti- nent times James was the president, Betcher was the vice president, and both were supervisors and agents of C-Line acting on its behalf within the meaning of Sec. 2 of the Act. 9 C-Line conceded the appropriateness for collective-bargaining pur- poses under Sec. 9 of the Act of a unit consisting of all employees cov- ered by the 1982-1985 agreements, excluding all other employees, guards, and supervisors as defined in the Act; that at pertinent times C-Line rec- ognized the Union as the exclusive collective-bargaining representative of C-Line employees within the unit; and that Carroll, Fisher, Frank, Hoover, Limpic, Neu, Olmsted, Pieri, and Stornetta were unit employees covered by the agreements. C-Line contended, however, Fry and Mat- tioda were neither within the unit nor covered by the agreements, assert- ing they were temporary or casual employees excluded from coverage. C LINE EXPRESS 3 subsequent weeks (ending July 19, and 26 and August 2 1985) 1 day during the week ending August 9, 1985, 4 days during each of the 2 weeks ending September 6 and 13 1985 5 days during the week ending September 20 1985 2 days during the week ending September 27 1985, 5 days during each of the 2 weeks ending October 4 and 11 1985 and 2 days immediately preceding the October 16, 1985 strike, for a total of 46 working days, including in excess of 20 days within the 3 months following his hire Mattioda was hired during the week ending October 4, 1985, and worked 4 days that week, 5 days the subse quent week, and, 2 days immediately preceding the Oc tober 16 1985 strike Both Fry and Mattioda at all times were members of the Union and informed James on October 17, 1985, they would not cross the picket line nor work nonunion, in response to his request they report for work 4 Dispatcher Jack Cuffman and James testified Fry was employed throughout his employment as a casual , to fill in during vacations and during overloads (when the reg ular complement could not handle temporary workload increases) and Cuffman testified he informed the Union hiring hall C Line was seekng a casual when he request ed a driver and informed Fry that C Line was employing him as a casual when he hired Fry James testified Mat tioda was also employed as a casual either as a vacation replacement or because of a workload increase (Cuffman did not testify to the reason Mattioda was hired and Mattioda did not testify) and that C Line paid both Fry and Mattioda the contract driver s rate and made contri butions on their behalf to the pension fund, but denied either received any other benefits (paid holidays sick leave etc) Fry conceded the dispatcher notified him in advance when to work and what run to take (which varied) but stated the runs of other drivers-whose status as regular drivers was unchallenged-were also vaned The record shows the regular drivers worked normal 40 hour weeks including weeks in which Fry worked less than 5 days At the outset of negotiations C Line proposed to eliminate coverage under the National Freight Agree ment reduce the driver pay rate from $11 11 to $9 50 per hour substitute individual retirement accounts with payments of $2000 per employee per year for participa tion in and payments to the Western Conference of Teamsters Pension Plan (WCTPP) substitute a health plan of C Line choosing for participation in and pay ments into the Western Conference of Teamsters Health Plan (WCTHP) reduce paid sick leave from 11 to 5 days per year eliminate jury service and funeral leave time and pay reduce vacations and vacation pay to 2 weeks at 40 hours of pay for each week after 1 year of service and 3 weeks at 40 hours of pay for each week after 3 years of service from 2 weeks and 96 hours of pay after 1 year, 3 weeks and 135 hours of pay after 3 years 4 weeks and 180 hours pay after 10 years, and 5 weeks and 225 hours pay after 20 years reduce from 12 to 7 paid holidays per year and grant C Line discretion to estab lish variable starting times, all because C Line was 4 Fry also picketed C Line s premises during the strike 641 unable to maintain existing wage and benefit levels and would be forced either into bankruptcy or out of busi ness unless wage costs were reduced The Union responded with proposals for continued coverage under the two expired agreements continuation of current wage rates, pension plan participation and payments, health plan participation and payments sick leave benefits, jury pay benefits funeral leave benefits and paid holidays, a reduction in vacation pay to 40 hours for each week of paid vacation, a limitation of starting times to a period starting at 5 a m and ending at f p in with 8 a in as one starting time and demanded access to C Line s financial records to determine the au thenticity of C Line s claim of financial hardship C Line consented to the Union s demand for access to its financial records The Union retained a certified public accountant, Alfred Nella to conduct an examina tion of those records and to render a report to the Union concerning his findings Nella contacted C Line C Line instructed its accountant CPA Everett V Lehman to make its financial records available to Nella, and Lehman complied with C Line s instructions On June 25, 1985, Nella submitted a written report to the Union stating C Line had a profit before taxes of $20,721 for the period April 1-December 31, 1984 a profit before taxes of $2501 for the month of January 1985 a loss of $4208 for February 1985, and a loss of $7532 for March 1985 C Line requested the Union furnish C Line a copy of Nella s report, the Union refused to do so By the September 20 1985 negotiating session, the par ties narrowed their differences considerably C Line ac cepted the Union s proposed continuation of the existing wage scale and Union accepted C Line s proposed re ductions in paid sick leave and paid holidays the Union accepted C Line s proposed elimination of coverage under the National Freight Agreement elimination of jury service and funeral leave and pay reduction in paid sick leave to 5 days per year, and reduction in paid holi days to 7 days per year, compromised on C Line s start ing time proposal with an agreement to flexible starting times between 3 and 10 am with 8 am as one of the starting times, and compromised on their respective va cation proposals with an agreement that vacation pay would be paid at 40 hours for each week of vacation and vacations of 2 weeks would be granted after 1 year s service 3 weeks after 3 years service and 4 weeks after 10 years service The Union also accepted during nego tiations C Line s proposed elimination of any require ment C Line hire an additional regular driver whenever a casual or temporary driver worked more than 20 days within 3 consecutive months Each, however, refused to yield on their respective positions concerning pension coverage and payment and the Union s demand that the health plan proposed by C Line cover retirees C Line also agreed to consider and provide a later answer to the Union s September 20, 1985 proposal that C Line provide the Union with quarterly financial statements On September 24, 1985 C Line dispatched a letter to the Union detailing the items the parties had agreed on (set out above) stated the two items on which they dis 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreed (retiree coverage under C-Line's proposed health plan and substitution of individual retirement accounts for coverage under the WCTPP), stated C-Line would not agree to furnish the Union quarterly financial state- ments but would agree to furnish quarterly reports of its operating ratio, and stated the items agreed on and its proposals concerning the pension, health, and quarterly report issues constituted its final offer. On October 3, 1985, the Union responded with a letter confirming the accuracy of C-Line's September 24, 1985 statement of the issues resolved by agreement and the unresolved issues. The parties last met the day the the Union dispatched its October 3, 1985 letter. They met under the auspices of the Federal Mediation Service and at no time con- ferred face to face (the mediator shuttled between sepa- rate rooms communicating the respective parties' ques- tions, demands, and positions). The meeting ended with no agreements on the three unresolved issues (the Union rejected C-Line's counterproposal of submitting quarter- ly operating ratio reports rather than quarterly financial statements). On October 4 and 5, 1985, C-Line sent letters to the Union stating C-Line believed the parties had reached a negotiating impasse and announced on October 14, 1985, C-Line was going to implement its wage, health, pension, sick leave, jury service, funeral leave, vacation, holiday, and starting time proposals, would no longer consider itself bound by any provisions of the National Master Freight Agreement and would comply with those provi- sions of the current Western Conference of Teamsters contract other than those covered by the proposals it was implementing and the provision requiring casuals be considered regular employees after working 20 days within 3 consecutive months. On October 10, 1985, the Union conducted a meeting of C-Line drivers. Williams presented C-Line's final pro- posal and recommended its rejection and, after discus- sion, his recommendation was adopted. On October 14, 1985, C-Line implemented its final proposal. On October 16, 1985, the Union called a strike against C-Line and C-Line's drivers began picketing C-Line's fa- cilities and picketing C-Line's vehicles at their stops.5 All C-Line's drivers other than Frank joined the strike and all but Mattioda and Hoover6 engaged in picketing activities. Between the time the parties exchanged their initial proposals and the time the strike began, C-Line's finan- cial condition and C-Line's proposals were a constant subject of discussion among C-Line's employees and be- tween C-Line employees and the two owners. The con- versations most often occurred between the time the em- ployees arrived at the dispatcher's office prior to starting work and the time they started work. During these ex- changes, James and Betcher constantly proclaimed the view the employees would receive more retirement money through annual investment of $2000 in C-Line 5 C-Line hired a full complement of drivers to replace the strikers as soon as the strike commenced. 6 Hoover left C-Line's employ in September 1985. payments into individual retirement accounts on behalf of each employee each year than they would receive in pension income from the WCTPP, that the health plan C-Line wished to institute provided equal or superior benefits than the WCTHP at far less expense, and that C- Line would either have to go out of business or declare bankruptcy if C-Line was unable to reduce its labor costs by instituting its proposed changes, citing its losses (in- cluding an appearance at a union meeting in August, during which James distributed to the Union and the em- ployees copies of its proposals and its financial statement for the period ending June 30, 1985, explained C-Line's position, and answered employee questions).? Prior to the October 16, 1985 strike, C-Line owned and utilized three trailers for hauling paper, normally parked the trailers in its yard when not in use and nor- mally picked up paper at the paper piers for delivery to various users. Shortly after the strike began, James drove to C-Line's premises in his personal auto and, before en- tering, stopped and engaged several pickets (including Neu and Fry) in conversation. In the course of the con- versation, James complained Stornetta's picketing at the paper piers prevented Napa Valley Trucking (NVT) from picking up a paper load with one of the trailers and that was improper, since C-Line sold its paper trailers to NVT.8 A few days later Neu went to NVT's yard and saw one of C-Line's paper trailers parked there. He re- ported James' statement and his observation to the Union. On October 18, 1985, the Union sent a telegram to C- Line stating the Union had been informed C-Line trans- ferred some of its equipment to NVT, asked (1) for con- firmation; (2) the date of the transfer; (3) what equipment was transferred; (4) whether the transferred equipment was being utilized to service accounts serviced by C- Line prior to the transfer; (5) what impact the transfer had on unit employment; and (6) the dates of hire, posi- tions, identity, and wages of unit employees hired after the strike commenced to perform bargaining unit work. C-Line neither acknowledged nor responded to the re- quest. During the October 1985 picketing, James and Betcher frequently conversed with the union pickets as they en- 7 As typical in small shops, the two owners and the drivers were on a first-name basis and were in constant direct communication, particularly while imbibing coffee in the dispatcher's office prior to the drivers start- ing their daily runs. I neither credit the testimony of the Union Steward Hoover and several strikers' testimony that James and Betcher always initiated the conversations, nor dispatcher Jack Cuffman's, Frank's, James', and Betcher's testimony the latter two only responded to driver statements, inquiries, and questions; rather, I find at times James and Betcher opened the discussions and at other times they responded to driver statements, inquiries, and questions. I do not credit Hoover's testi- mony James frequently stated he would close the doors if the drivers did not accept C-Line's proposals; that testimony was not corroborated by strikers who testified and James, Betcher, Cuffman, and Frank denied James made that statement. Rather, I find James and Betcher consistently repeated to the drivers the same statement they made to the Union during negotiations, i.e., that due to C-Line's continuing financial losses, C-Line either had to reduce its labor costs through the reductions it was proposing or it would be forced either to declare bankruptcy or to go out of business. 8 Three bills of sale from C-Line's records show the sale of the three trailers in question to NVT on October 17, 1985. C LINE EXPRESS tered and left C Line s facility Though sometimes amica ble their communications on several occasions took the form of complaints and threats, as James complaint to Fry and Neu over Stornetta s preventing of a paper pickup at the piers by picketing a C Line paper trailer hauled by NVT (after alleging C Line no longer owned the trailer), James statements to Stornetta he did not care how long the strikers walked the picket line, he would go broke and shut the doors before he would sign a union contract and that he did not want Stornetta back James statement to Olmsted he would go broke before he would sign a contract with the Union, Betcher s statements to Neu that because of the Union s success in preventing C Line s pickups and deliveries at docks manned by union members, C Line would not sign a contract with the Union and C Line would not reem ploy more than three of the strikers, and Betcher s state ment to Limpic he had better seek another job because C Line would never sign a contract with the Union On January 30, 1986, Union Secretary Treasurer Wil Liam Sawyer and the Union Business Representative Wil liams, accompanied by several strikers, contacted Betcher at C Line s facility Williams read and presented to Betcher a letter wherein the Union on behalf of the strikers, made an unconditional offer to return to work and requested their reemployment Betcher replied all of C Line's vehicles had been dispatched and there was no further work available that day Sawyer asked the start ing time the following day and was informed it was 8 a in Sawyer stated the strikers would return the follow ing day prior to that time ready to go to work and he Williams and the strikers departed The following day Williams and several strikers ap peared at C Lines facility prior to 8 am, contacted Betcher, and Williams renewed his request the strikers be reemployed Betcher replied there was not any work available for them and suggested the Union contact C Line s lawyer 9 On February 3 1986 C Line sent a letter to the Union acknowledging receipt of the January 30 1986 union offer and request and stating C Line would reemploy the strikers when and if vacancies occurred B Analysis and Conclusions 1 Unit and representative status By signing the March 1, 1982-March 31, 1985 Nation al Master Freight Agreement, C Line recognized and ac knowledged the Union as the exclusive collective bar gaining representative of its employees in job classifica tions covered by the National Freight Agreement and the Local Pickup and Delivery Supplemental Agreement negotiated by Teamsters Joint Council 7 on behalf of the Union, for a term extending from April 1, 1982 through March 31, 1985 8 Betcher testified he refused to reemploy any strikers because C Line s vehicles were fully manned by employees hired to replace the strikers 643 These agreements clearly demonstrate the Union rep resented and bargained on behalf of all drivers including casual drivers 10 C Line thus recognized the Union as the exclusive col lective bargaining representative of all its drivers, includ ing casuals and agreed to apply the terms and conditions of the two agreements to all its drivers, including casu als, during their terms (except for the single wage rate modification agreed to by the parties) C Line continued to recognize the Union as all its drivers exclusive collec tive bargaining representative through and after Febru ary 6, 1986 (when C Line requested a resumption of bar gaining) C Line continued to apply the terms and condi tions of the two agreements through October 14, 1985, and, since October 14 1985 has continued to observe the provisions of the current Local Pickup and Delivery Supplemental Agreement as modified by the wages, rates of pay hours and working condition changes instituted by C Line on October 14, 1985 On the basis of the foregoing, I find and conclude since March 1, 1982, the Union has been, and has been recognized as, the exclusive collective bargaining repre sentative of all of C Line's employees covered by the 1982-1985 agreements set out above, including casuals, excluding all other employees, guards and supervisors as defined in the Act, and that at times material Fry and Mattioda were casuals within the unit represented by the Union and covered by the 1982-1985 agreements and any extensions or modifications thereof 2 The alleged prestrike violations and strike causation The complaint alleged C Line violated Section 8(a)(1) and (5) of the Act and caused employees to engage in a strike to remedy C Line's unfair labor practices by threatening employees with plant closure unless the Union acceded to C Line's demands by directly dealing with employees concerning its pension and health pro posals, and by refusing to supply quarterly financial statements prior to the October 16 1985 strike These contentions lack merit During their prestrike conversations with employees neither James nor Betcher exceeded his free speech rights under Section 8(c) of the Act by reiterating the positions they enunciated during negotiations with the Union that C Line s deteriorating financial condition re quired securing lower labor costs in a new contract (sup ported by documentation) or C Line either would have to cease doing business or enter bankruptcy and that the employees would derive equal or greater benefit under C-Line s pension and welfare proposals than they would by continued coverage under the Teamsters plans With respect to C Line's refusal to supply quarterly fi nancial reports, this clearly was understood by C Line as a denial of a union demand for inclusion of a contract 10I find Fry and Mattioda by virtue of their payroll status and work assignments at all pertinent times were employed as casuals and never at tamed regular employee status (since C Line never agreed to the post 1985 supplemental agreement provision requiring the grant of regular em ployee status to casuals on completion of 20 days of work within 3 con secutive months) 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD provision in a proposed successor contract requiring sub- mission to the Union of quarterly financial reports during the life of the successor contract, a demand C-Line re- jected, accompanied by a compromise offer to submit to the Union quarterly statements of C-Line's operating ratio (which the Union rejected). Certainly the Union went on strike to cause C-Line to yield to its demands for continued employee coverage under the Teamsters pension plan, retiree coverage under the new health plan, and submission of quarterly finan- cial reports during the life of a successor agreement; C- Line, however, neither violated the Act by refusing to agree to the union demands nor by such refusal caused the Union to call, and the employees to engage in, an unfair labor practice strike. As to the alleged prestrike direct dealing and threats, I find James and Betcher neither dealt directly with em- ployees concerning wages, etc., nor threatened them with plant closure in violation of the Act, but merely ex- ercised their free speech privileges under Section 8(c) of the Act in discussing issues of mutual concern, so their conduct neither violated the Act nor caused the Union to call, and the employees to engage in, an unfair labor practice strike. I therefore shall recommend dismissal of those por- tions of the complaint alleging by James' and Betcher's prestrike statements to employees and refusals to agree to the Union's prestrike demands, C-Line either violated the Act or caused the Union to call and the employees to engage in an unfair labor practice strike. 3. The alleged October 14, 1985 violation Although the General Counsel does not contend the parties were not deadlocked at the close of their last ne- gotiating session (on October 3, 1985), he contends be- cause C-Line violated the Act prior to its October 14, 1985 implementation of its contract proposals, no legiti- mate impasse may be held to have occurred and there- fore that implementation violated the Act. I have entered findings and conclusions above that, contrary to the complaint allegations and the General Counsel's contentions, C-Line did not violate the Act prior to its October 14, 1985 implementation of its con- tract proposals. I therefore find and conclude the parties reached a le- gitimate bargaining impasse on October 3, 1985, C-Line did not violate the Act by implementing its contract pro- posals on October 14, 1985, and the Union caused and the employees engaged in an economic strike to secure the Union's demands on October 16, 1985. 4. The alleged poststrike violations and alleged strike prolongation or aggravation The complaint alleged C-Line violated Section 8(a)(1) and (5) of the Act and prolonged or aggravated the strike by James' and Betcher's poststrike statements and C-Line's failure to respond to the Union's information re- quest. I have entered findings shortly after the strike com- menced, James and Belcher complained to strikers/- pickets over their prevention of C-Line pickups and de- liveries, threatened them with discharge and refusals to sign a contract with the Union, i.e., the futility of their strike, and ignored the Union's request for information concerning the sale or use of its paper trailers by NVT, the impact of such use on unit employees' work opportu- nities and the identity, classification, and wages of unit employees hired during the strike. Whether the sale or transfer of the paper trailers to NVT was a sham transaction,'' it is clear prior to making its request, the Union received information NVT attempted to pick up paper at the paper piers with a C- Line trailer, a C-Line trailer was parked at NVT's yard, and James was claiming C-Line sold its paper trailers to NVT. As the exclusive collective-bargaining representative of C-Line's drivers, the Union had legitimate grounds for seeking to determine if the trailers had been sold and transferred to NVT to enable NVT to assume part of C- Line's business operations, with a consequent loss of work opportunities for C-Line employees within the bar- gaining unit represented by the Union, to determine if C- Line had enlisted NVT as an ally in its dispute with the Union, and to ascertain whether C-Line was observing the wages, contained in its final contract offer. I therefore find and conclude C-Line violated Section 8(a)(1) and (5) of the Act by the James/Betcher threats detailed above and by its failure to respond to the Union's October 18, 1985 information request. I also find and conclude by attempting to convince the strikers/pickets of the futility of their strike activity (by the threats and statements set out above) and by failing to bargain in good faith (by ignoring the Union's request for information it was entitled to receive), C-Line pro- longed and aggravated the strike, thereby converting the strike from an economic to an unfair labor practice strike.' 2 As the U.S. Court of Appeals for the Second Circuit stated in the case of NLRB v. Windham Commu- nity Hospital, 577 F.2d 805, 814 (1978): It is well established that an economic strike is con- verted into an unfair labor practice strike if it is "prolonged or aggravated by the employer's unfair labor practice. To similar effect, Powell Electrical Mfg. Co., 287 NLRB 969 (1987); Brooks & Perkins, 282 NLRB 976 (1987); Vulcan Hart Co., 262 NLRB 167 (1982), affd. 718 F.2d 269 (8th Cir. 1983); Heads & Threads Co., 261 " James, Betcher and NVT's owner (George Kolbert) testified while documents purporting to show a sale and transfer of C-Line's three paper trailers to NVT were executed the day after the strike started, no sale or transfer of title ever occurred, but did not deny after the strike started NVT attempted to continue pickups of paper for delivery for C-Line's customers by utilizing C-Line's paper trailers and that one or more of C- Line's trailers were parked at NVT's yard after the strike started. 12 An employer statement to strikers that he will never sign a contract with their bargaining representative implies no matter what further con- tract give-backs they and their representative offer (and that he is not going to make any concession), coupled with a cavalier refusal to even dignify the representative's reasonable request for information enabling that representative to function as their representative could not do other- wise than convince the strikers and their representative to prolong their strike and to aggravate the strike. C LINE EXPRESS NLRB 800 (1982), affd 724 F 2d 282 (2d Cir 1983), International Business Systems, 258 NLRB 181 (1981), affd mem 701 F 2d 158 (3d Cir 1983), Crystal Springs Shirt Corp , 245 NLRB 882 (1979), affd 637 F 2d 399 (5th Cir 1981 ), Pacific Grinding Wheel Co, 220 NLRB 1389 (1975), affd 572 F 2d 1343 (9th Cir 1978) Johnson Sheet Metal, 179 NLRB 644 (1969), affd 442 F 2d 1056 (10th Cir 1971 ), Waukesha Lime & Stone Co 145 NLRB 973 (1964) affd 343 F 2d 504 (7th Cir 1965) 5 The refusal to reinstate It is undisputed on January 31, 1986, C Line rejected the Unions unconditional offer on behalf of C Line s striking employees to return to work and its accompany mg request for their reemployment It has frequently been held an employers refusal to re employ unfair labor practice strikers upon their uncondi tional offer and request therefor, constitutes a violation of Section 8(a)(1) and (3) of the Act,13 and entitles the strikers to reemployment, even if such reemployment ne cessitated the layoff of employees hired to replace them 14 I thus find and conclude C Line violated Section 8(a)(1) and (3) of the Act by failing to reemploy its em ployees represented by the Union who engaged in the unfair labor practice strike against C Line following their January 31, 1986 unconditional offer to return to work and request for reemployment and that the strikers who unconditionally offered to return to work and requested reinstatement were entitled thereto on January 31 1986 CONCLUSIONS OF LAW 1 At all pertinent times C Line was an employer en gaged in commerce in a business affecting commerce within the meaning of Section 2 of the Act 2 At all pertinent times the Union has been, and has been recognized by C Line as the exclusive collective bargaining representative of C Line s employees within the unit described in the 1982-1985 National Freight Agreement and the Local Pickup and Delivery Agree ment negotiated by Teamsters Joint Council 7 including casual employees excluding all other employees guards and supervisors as defined in the Act 3 C Line did not violate the Act by James and Betcher s prestrike statements to unit employees 4 C Line did not violate the Act by its prestrike refus al to supply quarterly financial statements to the Union 5 C Line and the Union reached a legitimate bargain ing impasse on October 3 1985 6 C Line did not violate the Act by implementing its final contract offer on October 14 1985 13 Gulf Wandes Corp 233 NLRB 772 (1977) affd 595 F 2d 1074 (5th Cir 1979) Cast Optics Corp 184 NLRB 1 (1970) affd 458 F 2d 398 (3d Cir 1972) Penn Glass Sand Corp 172 NLRB 514 (1968) affd sub nom Teamsters Local 992 v NLRB 427 F 2d 582 (D C Cir 1970) 14 Mastro Plastics Corp v NLRB 350 U S 270 278 (1956) NLRB v International Van Lines 409 U S 48 50-51 (1972) Philip Carey Mfg Co v NLRB 331 F 2d 720 729 (6th Cir 1964) NLRB v Tom Joyce Floors Inc 353 F 2d 768 772 (9th Cir 1965) General Drivers Local 662 v NLRB 302 F 2d 908 911 (D C Cir 1962) cert denied 371 US 827 NLRB v Juniata Packing Co 464 F 2d 153 155 (3d Cir 1972) 645 7 At its October 16, 1985 inception the strike called by the Union and engaged in by unit employees was an economic and not an unfair labor practice strike 8 C Line violated Section 8(a) (1) of the Act by James and Betcher s poststrike (October 16 to Late October/early November 1985) discharge threats to unit employees and refusal to sign a union contract threats to unit employees (statements conveying to unit employees the message their strike activities were futile) and violat ed Section 8(a)(1) and (5) of the Act by its failure to re spond to the Union s October 18, 1985 request for infor mation 9 The aforesaid unfair labor practices prolonged and aggravated the October 16, 1985 strike and converted the strike from an economic to an unfair labor practice entitling the unit employees engaged in that strike to re instatement on their January 31, 1986 unconditional offer to return to work and request for reemployment 10 C Line violated Section 8(a)(1) and (3) of the Act by its January 31 1986 rejection of the unfair labor prac tice strikers'/unit employees unconditional offer to return to work and request for reemployment 11 The aforesaid unfair labor practices affected and affect commerce as defined in the Act THE REMEDY With respect to the unlawful failure to reemploy unit employees/unfair labor practice strikers, in the course of the proceeding it was established that Olmsted, Neu, Pieri Carroll, Stornetta and Limpic submitted formal resignations from C Line s employment to C Line on Oc tober 21 and December 31, 1985, and January 11 and February 11 and 25, 1986, respectively, that unit employee/unfair labor practice striker Fisher was offered and accepted reemployment on February 14 1986 and discharged for cause on February 24 1986, and that C Line unsuccessfully sought to contact and offer reem ployment to Limpic Fry and Mattioda and gave up fur ther effort to contact them 15 Ordinarily a voluntary resignation extinguishes an em ployer s obligation to reinstate and reimburse an unfair labor practice striker denied reinstatement on his uncon ditional offer to return to work However the record fails to show whether the resig nations cited above were caused by C Line s unfair labor practices of whether they were submitted only for the purpose of securing Teamsters pensions and their validi ty was contradicted by the physical appearance of Neu Piers and other unidentified employees before Betcher on January 30 and 31 1986, to unconditionally offer to return to work and request reemployment The record also fails to show whether one or more of the unit employees who engaged in the October 16 1985 strike were temporarily or permanently replaced and if the latter whether such displacement occurred before or after the strike was converted from an economic to an unfair labor practice strike the possibility there were 15 I credit James testimony to such effect His testimony was neither contradicted by Limpic and Fry (Mattioda did not testify) nor refuted by other evidence 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD valid reasons for Limpic's, Fry' s, and Mattioda's nonre- ceipt of C-Line's reemployment offers, and what employ- ment opportunities were available to casuals Fry and Mattioda following their unconditional offer to return to work. In view of these factors, I shall leave to the compli- ance phase of this proceeding the determination of which unit employees/unfair labor practice strikers are entitled to reinstatement and the periods, if any, they are entitled to reimbursement for lost wages.' e I therefore recommend C-Line be directed to offer to Richard Carroll, Denton Fry, Matthew Limpic, George Mattioda, David Neu, Frank Olmsted, Robert Pied, and Paul Stornetta reinstatement for their former jobs or, if those jobs no longer exist, to substantially equivalent em- ployment, with seniority and all other rights, privileges and benefits restored, and to make whole the aforemen- tioned employees for any losses they suffered between January 31, 1986, and the date they are offered reinstate- ment, unless it is determined any one or more was not entitled to reinstatement, to reimbursement, or reimburse- ment to an earlier date, with any amounts awarded cal- culated in the manner set forth in F. W. Woolworth Co., 90 NLRB 389 (1950), and interest on any sums due com- puted in accordance with the formula set out in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987), and Isis Plumbing Co., 138 NLRB 716 (1962), and to make whole Daniel Fisher for any losses he suffered between January 31, 1986, and February 14, 1986, with any amount due and interest calculated in the manner just described. Regarding the other violations, I recommend C-Line be directed to cease and desist therefrom, to post notices it will so cease and desist and refrain from their future commission, to provide the Union with the information it requested on October 18, 1985, and to bargain with the Union at its request following the Union's receipt of the requested information. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, C-Line Express, Napa, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge employees for engaging in concerted activities protected by the Act, such as striking and picketing. (b) Threatening employees with the futility of engag- ing in concerted activities protected by the Act by tell- ing employees no matter how long they engage in such activities, C-Line Express will not sign a contract with their collective-bargaining representative, Teamsters Local 490, and that C-Line will not reemploy them. 18 Cf. Servair Inc., 265 NLRB 181, 184 (1982), affd. 726 F.2d 1435 (9th Cit. 1984). 11 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (c) Failing or refusing to provide Teamsters Local 490 with information that organization requests in order to discharge its duties as the collective-bargaining repre- sentative of C-Line Express employees. (d) Failing or refusing to reinstate employees engaged in concerted activities protected by the Act to protest C- Line's unfair labor practices, upon their unconditional offer to return to work and request for reemployment. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Provide Teamsters Local 490 the information it re- quested on October 18, 1985. (b) Following the submission of that information to Teamsters Local 490, bargain at its request concerning the rates of pay, wages, hours, and working conditions of C-Line employees within the following unit: Employees of C-Line Express within job classifica- tions covered by the 1982-1985 National Freight Agreement and the 1982-1985 Local Pickup and Delivery Agreements negotiated by Teamsters Joint Council 7, including casual employees and exclud- ing all other employees, guards and supervisors as defined in the Act. (c) Offer to Richard Carroll, Denton Fry, Matthew Limpic, George Mattioda, David Neu, Frank Olmsted, Robert Pieri, and Paul Stornetta reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent jobs, with seniority and all other rights, privileges and benefits restored, unless it is determined in supplemental compliance proceedings any one or more of those employees are not entitled to reinstatement due to resignation or failure to respond to offers of reinstate- ment. (d) Make Richard Carroll, Denton Fry, Matthew Limpic, George Mattioda, David Neu, Frank Olmsted, Robert Pieri, and Paul Stornetta whole for any wage or benefit losses they suffered between January 31, 1986, and the date they are offered reinstatement or, in the event it is so determined in supplemental compliance proceedings, an earlier date when their entitlement to re- instatement under this order expired, and make whole Daniel Fisher for any wage or benefit losses he suffered between January 31, 1986, and February 14, 1986, in the manner set out in the remedy section of this decision. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facilities at Napa, California, copies of the attached notice marked "Appendix." 18 Copies of the 18 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." C LINE EXPRESS notice, on forms provided by the Regional Director for Region 20, after being signed by an authorized represent ative of C Line Express and shall be posted immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken to ensure the notices are not altered defaced, or covered by other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 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 or dered us to post and abide by this notice WE WILL NOT threaten to discharge our employees for engaging in activities protected by the Act, including striking and picketing WE WILL NOT threaten our employees with the futility of engaging in such activities by telling them no matter how long they engage in such activities we will not sign a contract with Teamsters, Chauffeurs, Warehousemen & Helpers 490, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO covering their rates of pay, wages, hours, and working conditions nor reemploy employees who engage in those activities WE WILL NOT fail or refuse to supply Teamsters Local 490 with information that organization requests in order to discharge its duties as the collective bargaining repre sentative of our employees WE WILL NOT fail or refuse to reinstate our employees who engage in concerted activities protected by the Act 647 on their unconditional offer to return to work and re quest for reinstatement WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL provide Teamsters Local 490 with the infor mation it requested on October 18, 1985 WE WILL following the submission of that informa tion, bargain with Teamsters Local 490 at its request concerning the rates of pay, wages, hours, and working conditions of our employees within the following unit Employees of C Line Express within job classifica tions covered by the 1982-1985 National Freight agreement and the 1982-1985 Local Pickup and De livery Agreements negotiated by Teamsters joint Council 7, including casual employees, and exclud ing all other employees, guards and supervisors as defined in the Act WE WILL offer Richard Carroll, Denton Fry, Matthew Limpic, George Mattioda, David Neu, Frank Olmsted, Robert Pieri, and Paul Stornetta reinstatement to their former jobs or, if those jobs no longer exist, to substan tially equivalent jobs, with seniority and all other rights, privileges and benefits restored, unless it is determined in supplementary compliance proceedings any one or more of those employees are not entitled to reinstatement due to their resignation or failure to respond to an earlier re instatement offer WE WILL make the above employees whole for any wage or benefit losses they suffered between January 31, 1986, and the date they are offered reinstatement or an earlier date (in the event it is determined in supplementa ry proceedings their entitlement to reinstatement expired at an earlier date), with interest on the sum or sums due C-LINE EXPRESS