Chesapeake Plywood, Inc.

CHESAPEAKE PLYWOOD Chesapeake Plywood, Inc., a subsidiary of Chesa- peake Corporation and International Wood- workers of America-Region V. Cases 5-CA- 17436, 5-CA-17769, 5-CA-17823, 5-CA- 17931, and 5-CA-18143 May 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 10, 1988, Administrative Law Judge Joel A. Harmatz issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief; the General Counsel filed cross-ex- ceptions and a supporting brief; the Respondent filed an answering brief to the General Counsel's cross-exceptions; and the Charging Party filed an answering brief to the exceptions filed by the Re- spondent. 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,I and conclusions2 only to the extent consistent with this Decision and Order. 1. In accordance with the judge's decision we find that the Respondent violated Section 8(a)(5) and (1) of the Act by causing a deadlock in negoti- ations on the basis of the Respondent's demands to modify certain provisions in a court-approved EEO settlement agreement that had been jointly execut- ed with the Union on January 10, 1983, to resolve a Title VII discrimination case. We also agree with the judge that the reason the Respondent could not lawfully insist, over the Union's objection, on modifications of those provisions is that the Union and the Respondent had agreed, in that same settle- ment agreement, that the relevant terms would be effective for a 5-year period, in the absence of agreement by both parties to change them, and the period had not yet expired at the time the Re- spondent insisted on the modifications. Although those provisions do not in themselves constitute a full collective-bargaining agreement, by agreement of the parties they nonetheless were incorporated in the ensuing collective-bargaining i The judge found at In 21 of his decision that the Board in Clear Pine Mouldings, 268 NLRB 1044 (1984), repudiated the Thayer doctrine set out in NLRB v Thayer Co, 213 F 2d 748 (1st Cir 1954) We note that the remark made by the judge relates only to the plurality opinion In any event, reliance on Thayer is unnecessary to our decision here 2 In adopting the judge's conclusion regarding the Respondent's with- drawal of recognition because of the Union's loss of majority status, we also rely on Hearst Corp, 281 NLRB 764 (1986) 201 agreement and constitute agreements on terms and conditions of employment, i.e., mandatory subjects of bargaining. Such agreements are subject to the requirements of good-faith bargaining established in Section 8(a)(5) and (d) of the Act. See, e.g., Geor- gia Pacific Corp., 275 NLRB 67 (1985) (statutory good-faith bargaining requirements applied to a separate agreement on converting to a four-shift operation). As the judge correctly recognized, the Act's policy of minimizing industrial strife by en- couraging stability in agreements on terms and con- ditions of employment is undermined by a party's making unilateral changes in such matters during a period in which both parties have agreed that changes can be made only by mutual agreement. Thus, the Respondent could not lawfully condition its agreement to a new collective-bargaining agree- ment on modifications to the agreements reached as part of the Title VII settlement.3 The heart of the Respondent's argument, howev- er, is not disagreement with these principles, but rather a contention that the parties affirmatively agreed in the Title VII settlement agreement that the provisions in question would be subject to the normal processes of collective bargaining when the existing collective-bargaining agreement expired, including the process of unilateral implementation after impasse. We agree with the judge that this construction of the agreement is not well founded. Specifically, the duration clause (sec. 20) *of the EEO settlement agreement provides: Unless an earlier date is provided elsewhere in this Agreement, Sections 7 through 12 of the Agreement shall cease to have any force or effect upon expiration of five years from the date of the Agreement. Prior to that time, the terms of Sections 7, 8, 10, 11 and 12 can be changed by agreement of the Company and the Union. [Emphasis added.] A change effected through unilateral implementa- tion of one party's final proposal simply does not constitute a change "by agreement of the Company and the Union"; and the latter is the only means by which section 20 permits modifications prior to the expiration of the 5-year period. In arguing its interpretation of section 20, the Respondent also contends that it was erroneously precluded by the judge from putting in evidence on the parties' intent in negotiating that section. We agree with the judge, however, that, even as- 3 While the Respondent could not lawfully insist on modifications in the specified Title VII settlement agreement provisions before the 5 years was up, it was of course permitted to propose such modifications to the Union This is the only sense in which this case concerns insistence on a "permissive" subject of bargaining 294 NLRB No. 5 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD suming the language in question was ambiguous, the evidence proffered by the Respondent-testi- mony that was to have been given by an individual who had not been involved in the negotiations for the Title VII settlement agreement and that con- cerned only its own (the Company's) intent in ne- gotiating section 20-does not constitute the kind of bargaining history evidence that may serve to cast light on the meaning of ambiguous contract language. 2. We also agree with the judge's conclusion that, because the Respondent was guilty of an un- lawful refusal to bargain, the strike that ensued was an unfair labor practice strike from its inception. The Respondent's argument that the strike was an economic strike and that the EEO settlement agreement was "seized upon by the Union as an afterthought" to support its claim of an unfair labor strike is unavailing. The Respondent's proposed changes to the EEO settlement agreement were clearly among the factors precluding the parties' agreement on a new contract and precipitating the strike. Flora Copeland testified that she conducted a union meeting on July 22, 1986. At that meeting she read the Respondent's final proposal. She had with her a copy of the 1982/1985 contract and a copy of the EEO settlement agreement. She testi- fied that there was a discussion concerning the set- tlement agreement at that meeting and that she thought the Respondent's proposal violated the EEO settlement agreement. She said the employees were very upset about this. We find that this testi- mony supports the judge's finding that the EEO dispute was a significant issue causing the strike commencing July 23, 1985.4 ' The September 18, 1985 bargaining session did not alter the nature of the strike because, as the judge found, the Respondent's demands affect- ing the EEO settlement agreement generally were not, as the Respondent argues, withdrawn Those demands, even as modified, effectively under- mined the EEO settlement agreement by supplanting existing seniority criteria under art 7 of that agreement with an entirely distinct system of preferences for advancement, transfer, and the filing of vacancies The Respondent nevertheless contends that the October 4, 1985 letter to it from Union Regional President Campbell (G C Exh 12A) proves that the Respondent's September 18 proposal, even if it contained provi- sions inconsistent with the EEO settlement agreement, was no longer a factor contributing to the strike The Respondent claims that Campbell's letter reiterating the Union's September 18 bargaining proposal is devoid of reference to any matter "even arguably" covered by the settlement agreement The Respondent is clearly mistaken That letter, inter alia, refers to the Union's request that, in order to settle the strike, the Re- spondent would have to withdraw its proposals regarding the Mainte- nance Training Program, a significant part of the settlement agreement In any event, assuming arguendo that the Respondent's interpretation of Campbell's letter is correct, the lack of reference alluded to by the Re- spondent does not mean that the Union and the strikers were no longer concerned that the Respondent 's demands conflicted with certain terms of the settlement agreement, as noted above In the absence of an un- equivocal statement manifesting the Union's abandonment of its opposi- tion to the Respondent 's demands relating to the settlement , we are un- willing to read into the Union's proposal of September 18, as repeated in 3. We find in agreement with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by denying reinstatement to the unfair labor practice strikers following individual offers by cer- tain strikers to return to work after November 4, 1985, and the Union's offer on behalf of all unrein- stated strikers on December 29, 1985. The judge also determined that the Respondent's unlawful treatment of the strikers extended to the Respond- ent's letter of May 22, 1986, which was addressed to all unreinstated strikers, and the Respondent's termination of those strikers who did not respond to that letter. The letter advised its recipients that they would be removed from the preferential rehire list, which the Respondent had established on November 4, 1985, if they failed to respond to the letter's inquiries concerning their wishes to remain on the list or not to return to work. The judge found that the letter violated Section 8(a)(1) because removal from the list "was tantamount to discharge" and thus "the consequence of failure to respond . . . was forfeiture of the rights held by the strikers under Laidlaw Corporation, 171 NLRB 1366 (1968)." The judge further found that the ter- mination of eight striking employees because they failed to respond to the Respondent's May 22 letter violated Section 8(a)(3) and (1). We affirm these findings, but on slightly different grounds from those of the judge.5 The strike was an unfair labor practice. strike from its inception. Consequently, the Respondent was not at liberty to threaten to terminate or termi- nate any of its striking employees because they failed to respond to the May 22 letter. As unfair labor practice strikers, they could not lawfully be discharged, or threatened with discharge or other disciplinary action, other than for misconduct caus- ing them to lose the protection of the Act. They were entitled to reinstatement on making an uncon- ditional offer to return to work and their reinstate- ment rights were paramount over any replacements hired for them during the strike. The Respondent, Campbell's letter, what the Respondent claims for it In this regard we note that Campbell testified that the Union's proposal was made as a last- ditch effort to settle the strike and that the Respondent rejected it, thus leaving the parties where they were at the time of the September 18 meeting We also note that the strike continued without interruption through these events s In finding that the employees removed from the preferential hiring list were unlawfully terminated, the judge relied on Charleston Nursing Center, 257 NLRB 554 (1981), and the cases cited in his decision at 19 The judge' s reliance on these cases is misplaced in the context of an unfair labor practice strike Charleston Nursing Center (and each of the other cases cited by the judge) involved an economic strike In economic strikes, the rights of strikers can be affected by such matters as the hiring of permanent replacements That eventuality, however, has no impact on the rights of unfair labor practice strikers Therefore, to the extent the judge treated the instant strikers as economic strikers, we disavow his analysis CHESAPEAKE PLYWOOD therefore, could not diminish, circumscribe, or affect their reinstatement rights through preferen- tial hiring lists of the kind it established here or subordinate those rights to the rights of employees hired to replace them. Indeed, the replacements for the strikers should have been discharged, if neces- sary, to accommodate the reinstatement of the unfair labor practice strikers when they sought re- instatement. Given these circumstances, the Re- spondent had no legitimate basis for conditioning the strikers' continued right to reinstatement upon their complying with the letter's requirement to re- spond, or face removal from the preferential rehire lists-which removal as the judge correctly found and. the facts bear out "was tantamount to dis- charge." Accordingly, we find that the termination of strikers because they did not reply to the Re- spondent's May 22 letter violated Section 8(a)(3) and (1) of the Act. Similarly, we find the letter itself violates Section 8(a)(1) because its forewarn- ing the strikers that those who did not respond would be removed from the preferential rehire list constituted an unlawful threat of discharge. Clear- ly, if removal from a preferential hiring list amounts to unlawful discharge, a statement presag- ing that event is coercive and illegal. 4. The judge found that no violation occurred when the Respondent removed striking employees Brittingham and Gailliard from the preferential rehire list because, in response to the May 22, 1986 letter, each advised the Respondent that "I do not wish to return to work at Chesapeake Plywood be- cause I have found another job." The General Counsel argues that these two employees should have remained on the list because neither Brit- tingham nor Gailliard had indicated he had found "equivalent-comparable" employment or would not have at that time accepted his prior position. Be- cause the strike was an unfair labor practice strike and the Respondent had earlier unlawfully denied them reinstatement, along with other unfair labor practice strikers, and because they had no obliga- tion to respond to the letter to preserve their rein- statement rights as it contained no offer of rein- statement, we find that their right to reinstatement is unaffected by their reply that they did not wish to return to work. See Consolidated Freightways, 290 NLRB 771 (1988). Nevertheless, since in reply- ing they expressed a clear choice not to return, we 6 In light of the strike's unfair labor practice character, the Respondent cannot justify its actions by showing that those actions would be lawful as to economic strikers The establishment and mamtainance of the pref- erential rehire list, therefore , was unwarranted because it constituted an integral part of the Respondent's treatment of the strikers In these cir- cumstances, the list does not have any force or effect on the rights of the strikers (we note that the complaint does not allege, nor does the General Counsel contend, that the establishment of the list violated the Act) 203 shall not disturb the judge's finding that their re- moval from the list pursuant to their response did not separately violate the Act. 5. The General Counsel has alleged that the Re- spondent resorted to disparate treatment in its dis- charge decisions regarding employees whom it ac- cused of strike misconduct. The judge rejected the General Counsel's claim of disparate treatment and, using a Clear Pine Moldings standard' for assessing the severity of alleged strike misconduct, dismissed the allegations that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging strik- ers Larry Smullin, William Taylor, Donald Hem- mian, Anthony Jenkins, and Ronald Hockett.8 The General Counsel has excepted to these conclusions. Although, for reasons stated below, we agree with the judge's conclusions in regard to Smullin, Taylor, Hemmian, and Jenkins, we find merit in the General Counsel's claim that Hockett's dis- charge involved disparate treatment, in light of the Respondent's failure to discharge nonstriker Hayman, who the Respondent was aware had en- gaged in misconduct of a more serious nature.9 Ronald Roberts, the Respondent's general man- ager of the wood products division, testified that on an unspecified day during the strike, a Maryland state trooper informed him of allegations by strik- ers that a striker replacement, subsequently identi- fied as Robert Hayman, had come through the picket line with a shotgun. When Roberts ques- tioned Hayman at the plant, Hayman admitted having a shotgun in the trunk of his car. Hayman further admitted having had a shotgun in the front seat with him as he had crossed through the picket line and having stated to those on the picket line words to the effect of, "if you mess with me, you have to answer to this." i ° When Roberts further ' 268 NLRB 1044 (1984) 8 No exceptions were filed to the judge's conclusion that employee Jennis Collins had not engaged in strike misconduct that would warrant discharge and that the Respondent violated Sec 8(a)(3) and (1) by dis- charging him e The General Counsel also argues that the Respondent's discharge of certain strikers was disparate in light of its reinstatement of striker Cor- nell Roberts, who also allegedly engaged in strike misconduct We find no merit in this contention, noting that the General Counsel has failed to cite any authority to support this position Because Roberts and the strik- ers who were discharged by the Respondent were all similarly engaged in strike activity, any variance in discipline within this group of employ- ees would be insufficient as evidence to show that the disciplined em- ployees were treated disparately because of their protected activity 10 There is no essential conflict between Robert's testimony or Hay- man's account, as described above, and the testimony of strikers who wit- nessed the Hayman incident Striking employee Collins, who was present on the picket line, testified that Hayman had the shotgun with him in his car when he stated to the strikers that if anybody wanted to do anything that he had something for them The accounts, however, do diverge re- garding whether Hayman pointed the shotgun at the pickets out of the window of his car, or whether, as Hayman reported to Roberts, the shot- gun had merely fallen across his lap as he turned through the picket line Continued 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD questioned Hayman as to why he brought the gun to the plant, Hayman indicated that he had been receiving telephone threats at home and that he brought the shotgun with him to protect his prop- erty. For bringing a firearm on to the Respondent's property, Hayman received only a written warning informing him that if he did it again, more severe discipline would occur. We also note that Roberts did not investigate the incident beyond questioning Hayman. As stated in Aztec Bus Lines, 289 NLRB 1021 (1988): Although an employer does not violate the Act by refusing to reinstate strikers who have engaged in serious misconduct, it is not free to apply a double standard. It may not knowingly tolerate behavior by nonstrikers or replace- ments that is at least as serious as, or more se- rious than, the conduct of strikers that the em- ployer is relying on to deny strikers reinstate- ment to jobs. Accord: Garrett Railroad Car & Equipment v. NLRB, 683 F.2d 731, 740 (3d Cir. 1982). We find that the judge erred in disregarding this principle by reasoning that the Respondent may treat em- ployees who cross the picket line more leniently solely because "they are furthering management's legitimate objective of continuing operations in the face of the strike." From the perspective of assess- ing an employee's statutorily protected activity in relation to a strike, his right to join the strike is not inherently less deserving of protection than his right to work in disregard of the strike, notwith- standing the employer's separate interest in con- tinuing production.' 1 Whatever distinctions may be drawn between various incidents of alleged strike misconduct must be derived from the objective cir- cumstances of each case, not from whether the em- ployee is supporting or opposing the employer's in- terests. Applying this analysis, we agree with the judge's conclusion that the Respondent acted lawfully in discharging employees Smullin, Taylor, Hemmian, and Jenkins because their misconduct was more se- rious than that of Hayman. As discussed fully by the judge, Smullin engaged in misconduct that threatened bodily harm to three management repre- In assessing the relative severity of Hayman's threat to the pickets, how- ever, we find it unnecessary to resolve this conflict because under either account the exhibition of the shotgun was an essential aspect of the threat ii Cf Machinists Local Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), in which the Board held in reviewing a union's disciplinary decisions during a strike that a union's institutional interest in preserving strike solidarity cannot negate or otherwise overcome the statutory rights of employees in strike settings Id at 1334 sentatives; Taylor threatened employees Golt and Hughes with physical harm and actually threw hot coffee on Golt; Hemmian threatened employee Revels and provoked a fight with employee Dennis; and Jenkins threatened an employee with physical harm and carried out a threat to damage that employee's car. In the case of Hemmian, we find that the actual incidence of a physical assault was more severe than a threat of physical harm. With respect to all four of these discharged strik- ers, we find that the Respondent has provided a le- gitimate factual basis for drawing a distinction be- tween the threats made by them and the threat made by Hayman. First, the Respondent had ascer- tained that Hayman's threat was prompted by un- contradicted reports that he had received telephone threats. Further, Hayman's threat to the strikers was conditional on their taking some further action against him that would provoke his response. In short, Hayman's threat, although clearly an unwar- ranted overreaction, was based on provocation and may be viewed as an attempt at self-defense. In contrast, the threats of physical harm made by these four discharged strikers were neither pro- voked nor conditioned on some further action being taken against them personally. In those in- stances, the threats were either directly made against management officials or were made against striker replacements for their exercise of the statu- tory right to cross a picket line. Accordingly, with respect to these four employees, we find the Gen- eral Counsel has not established an adequate basis for concluding that the Respondent has engaged in disparate treatment. We do agree with the General Counsel, howev- er, that Hayman's misconduct was more serious than the misconduct engaged in by employee Hockett, and that the Respondent's decision to dis- charge Hockett but not Hayman was evidence of discrimination against Hockett based on his strike activities. The facts leading up to Hockett's dis- charge are set out in the judge's decision. The judge found that Hockett was lawfully discharged for having made an alleged threat in relation to employee Herbert Mossett's house. 12 Briefly, the judge found that Hockett spoke to Mossett at the plant shortly before the strike was to begin. Ac- cording to the credited testimony, Hockett, who was then on his work shift, asked Mossett, who was not then working but whose shift was to start 12 The judge rejected the Respondent's reliance on Hockett's alleged involvement in a rock-throwing incident, because the judge found that the Respondent acted without evidence reasonably leading to the conclu- sion that Hockett was responsible for the rock throwing The judge found it unnecessary to address whether Hockett was actually involved in the incident CHESAPEAKE PLYWOOD after the strike was to commence, whether the latter was returning to work. After Mossett failed to reply, Hockett stated, "I feel sorry for your damned house." Mossett thereupon left the plant. Mossett reported this to management but noted in his affidavit that no damage was done to his house nor did he know of anyone else's house being dam- aged by Hockett. A comparison between Hayman's threat of physical violence, and Hockett's threat to Mossett's house, including consideration of all the surrounding circumstances, reveals that Hayman's threat was the more serious. Although Hayman's threat was conditional and in self-defense, Hock- ett's threat was less than an explicit threat to damage Mossett's house. Further Hayman's deci- sion to exhibit the shotgun was a demonstration that he had the specific ability to inflict grave physical injury, whereas Hockett's ability or inten- tions with respect to damaging Mossett's house are much less demonstrable. Fundamental to the dis- tinction, however, is that the threat of physical harm is by its nature more serious than a threat to property.13 Thus, we cannot allow the Respondent implicitly to condone such conduct engaged in by Hayman through a mere written warning, while al- lowing the Respondent to discharge Hockett, who was involved in less serious misconduct. We there- fore conclude that the Respondent violated Section 8(a)(3) and (1) by disparate treatment.14 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 3 and 4. "3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Jennis Collins and Ronald Hockett on January 15, 1986, under condi- tions discouraging union membership. "4. The Respondent violated Section 8(a)(3) and (1) of the Act beginning about November 4, 1985, by refusing to reinstate unfair labor practice strik- ers who unconditionally, either individually or as a group, offered to return to work." AMENDED REMEDY The remedy recommended by the judge is af- firmed subject to the following modifications. Having concluded that the Respondent discrimina- torily discharged Ronald Hockett, the Respondent shall offer him immediate reinstatement to his former position or, if that no longer exists, to a substantially equivalent position, discharging if nec- '3 We note, however, that such a distinction may disappear if the threat to property would lead to obvious physical endangerment, such as a threatened assault on a moving vehicle 14 In view of the above, we find it unnecessary to consider whether Hockett's discharge would have been lawful, absent evidence of disparate treatment, solely under the test articulated in Clear Pine Mouldings, supra 205 essary anyone hired to replace him since his termi- nation, and shall make him whole for any loss of earnings and other benefits by reason of the dis- crimination against him. Backpay shall be comput- ed on a quarterly basis from the date of discharge to the date of a bona fide offer of reinstatement, less net interim earnings, as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in accord with New Horizons for the Re- tarded, 283 NLRB 1173 (1987), subject to the pro- viso that interest accruing prior to January 1, 1987, shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). Having found that the strike was an unfair labor practice strike and that the Respondent has denied the strikers reinstatement, we find that the judge incorrectly tolled the commencement of backpay for strikers who requested reinstatement until a date 5 days after their unconditional offer to return. Where reinstatement has been denied, a 5- day grace period has no useful purpose. Newport News Shipbuilding & Dry Dock Co., 236 NLRB 1637, 1638 (1978). Accordingly, we shall modify the judge's recommended remedy by requiring the Respondent to make whole the unfair labor prac- tice strikers from the date they unconditionally of- fered to return to work. ORDER The National Labor Relations Board orders that the Respondent, Chesapeake Plywood, Inc., a sub- sidiary of Chesapeake Corporation, Pocomoke City, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening its employees with loss of their reinstatement rights as unfair labor practice strikers if they fail to respond to the Respondent's inquir- ies. (b) Discouraging its employees' activity on behalf of a labor organization by discharging unfair labor practice strikers because of their failure to re- spond to its inquiries. (c) Discouraging its employees' activity on behalf of a labor organization by discharging strik- ers, without an honest belief that they had engaged in misconduct of a disqualifying nature, or where they had not engaged in serious misconduct. (d) Discouraging its employees' activity on behalf of a labor organization by refusing to rein- state unfair labor practice strikers on their uncondi- tional offer to return to work. (e) Refusing to bargain with the Union, the International Woodworkers of America-Region V, by withdrawing recognition from the Union as the 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at the plywood plant located at Pocomoke City, Maryland, includ- ing Stock Rustlers; but excluding all office clerical employees, temporary employees, watchmen, guards, leadmen and supervisors as defined in the Act. (f) Refusing to bargain in good faith with the Union by negotiating to impasse on a nonmanda- tory subject of collective bargaining. (g) Refusing to bargain with the Union by refus- ing to provide information requested by the Union necessary to the performance of its duties as exclu- sive representative of the Respondent's employees in the appropriate unit. (h) In any like or related manner interfering with, restraining, or coercing, employees in the ex- ercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Jennis Collins and Ronald Hockett im- mediate reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner prescribed in the amended remedy section of this decision. (b) Remove from their files, delete, and expunge any reference to the unlawful termination of Jennis Collins and Ronald Hockett, notifying them in writing that this has been done and that this dis- charge will not be used against them in the future. (c) Offer immediate reinstatement to unreinstated employees, who at the time of their unconditional offer to return to work held the status of unfair labor practice strikers, and make them whole for any loss of earnings they may have suffered by reason of the failure to reinstate them, in the manner prescribed in the amended remedy section of this decision. (d) Recognize and, on request, bargain with the Union as the exclusive collective-bargaining repre- sentative of its employees in the appropriate unit concerning their rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement. (e) Bargain in good faith by furnishing the Union the information requested in its letter of April 3, 1986. (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Pocomoke City, Maryland plant copies of the attached notice marked "Appen- dix." 15 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 15 If this Order is enforced by a,judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten our employees with loss of their reinstatement rights as unfair labor practice strikers if they fail to respond to our inquiries. WE WILL NOT discourage our employees' activi- ties on behalf of a labor organization by discharg- ing unfair labor practice strikers because of their failure to respond to our inquiries. CHESAPEAKE PLYWOOD WE WILL NOT discourage our employees' activi- ties on behalf of a labor organization by discharg- ing strikers, absent an honest belief that they had engaged in misconduct of a disqualifying nature, or where they had not engaged in serious misconduct. WE WILL NOT discourage our employees' activi- ty on behalf of a labor organization by refusing to grant reinstatement to unfair labor practice strikers on their unconditional offer to return to work. WE WILL NOT refuse to bargain with the Union, the International Woodworkers of America-Region V, by withdrawing recognition from it as the ex- clusive representative of our employees in the fol- lowing appropriate unit: All production maintenance employees em- ployed by the Employer at its plywood plant located at Pocomoke City, Maryland, includ- ing Stock Rustlers; but excluding all office clerical employees, temporary employees, watchmen, guards, leadmen and supervisors as defined in the Act. WE WILL NOT refuse to bargain with the Union by refusing, on request, to provide information rel- evant and necessary to the Union's performance of its duty as collective-bargaining representative of our employees. WE WILL NOT refuse to bargain in good faith with the Union by bargaining to impasse on a non- mandatory subject of collective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL recognize and bargain with the Union as the exclusive bargaining representative of our employees in the appropriate unit concerning their rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. WE WILL furnish the Union the information re- quested in its letter of April 3, 1986. WE WILL offer Jennis Collins and Ronald Hock- ett immediate reinstatement to their former posi- tions or if those no longer exist, to substantially equivalent positions, and make them whole, with interest, for all losses sustained by reason of dis- crimination against them. WE WILL notify Jennis Collins and Ronald Hockett that we have removed from their person- nel files, deleted, and expunged all references to their discharges and have notified each that this has been done and that his discharge will not be used against him in the future. WE WILL reinstate all unreinstated unfair labor practice strikers, who have not been lawfully ter- 207 urinated for misconduct, and shall make them whole for losses sustained by reason of our discrim- ination against them, with interest. CHESAPEAKE PLYWOOD, INC., A SUB- SIDIARY OF CHESAPEAKE CORPORA- TION Harvey A. Holzman, Esq. and Steven C Bensinger, Esq., for the General Counsel. A. W. Vandermeer Jr., Esq. and Kelly O. Stokes, Esq. (Hunton & Williams), of Norfolk, Virginia, for the Re- spondent. Samuel Morris, Esq. (Gerber, Gerber & Agee), of Mem- phis, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A HARMATZ, Administrative Law Judge. This proceeding was heard by me in Pocomoke City and Salisbury, Maryland, on various dates between 9 March and 21 May 1987, on an initial unfair labor practice charge filed on 23 January 1986 and a consolidated com- plaint issued on 24 February 1987, alleging that Chesa- peake Plywood, Inc., a susidiary of Chesapeake Corpora- tion' (Respondent) violated Section 8(a)(5) and (1) by re- fusing to bargain in good faith, as evidenced by its over- all acts and conduct, including its insistence to impasse on a nonmandatory bargaining subject, its implementa- tion of a final offer prior to legitimate impasse, and its withdrawal of prior proposals. The complaint further al- leges that Respondent additionally violated Section 8(a)(5) and (1) of the Act by subsequently withdrawing recognition, and refusing to meet with, or to provide rel- evant information to, the Union as the exclusive repre- sentative of employees in the appropriate collective-bar- gaining unit. The complaint alleges further that a strike was caused and prolonged by unfair labor practices, and hence that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate the strikers upon their unconditional application to return to work. Finally, the complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging 6-named strik- ers, and by threatening to rescind, and thereafter rescind- ing, recall rights of 10 replaced strikers In its duly filed answer, Respondent denied that any unfair labor prac- tices were committed. Following close of the hearing, briefs were submitted on behalf of the General Counsel, the Charging Party, and Respondent. On the entire record in this proceeding,2 including consideration of the posthearing briefs, and my opportu- ' Name of Respondent appears as amended at the hearing 2 Certain errors in the transcript are noted and corrected Pursuant to procedures outlined at the hearing and consented to by the parties, I grant the General Counsel's motion that the record be reopened to receive Jt Exh 1, a compilation of payroll and reinstatement data, possibly affecting compliance rights of alleged discriminatees, including all those who participated in the strike which commenced 23 July 1985 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nity directly to observe the witnesses while testifying and their demeanor,3 I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Virginia corporation with a place of business in Pocomoke City, Maryland, the sole facility involved in this proceeding, from which it is engaged in the production and distribution of plywood. In the course of its operation, during the 12 months prior to is- suance of the complaint, a representative period, Re- spondent sold and shipped from its facility products, goods, and materials valued in excess of $50,000 directly to points located outside the State of Maryland. The complaint alleges and it is concluded that Re- spondent is, and has been at all times material, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, the record shows, and it is found that the International Woodwork- ers of America-Region V (the Union), now exists, and at all times material has existed for the purpose of repre- senting employees in the negotiation of wages, hours, and terms and conditions of employment, and, accord- ingly, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview Prior to the instant controversy, the parties maintained a long, reasonably harmonious bargaining relationship at the Pocomoke City plywood plant . That history ended following unsuccessful negotiations to renew the most recent collective-bargaining agreement that expired on 18 June 1985. Thus, negotiations opened in May 1985, but for all intents and purposes ended on 18 September 1985 when the Employer withdrew its outstanding pro- posals. In the interim , the employees commenced a strike on 23 July 1985 in furtherance of their bargaining posi- tion. The Company continued to operate in the course thereof, utilizing permanent replacements . On 4 Novem- ber 1985, certain strikers made individual offers to return to work, and thereafter on 30 December 1985 the Union ended the strike, communicating a further offer to return on behalf of all remaining strikers. Many, if not all, strik- ers covered by these offers were denied immediate rein- statement. On 15 January 1986, the Employer terminated six strikers, allegedly because of their misconduct during the course of the strike. On 13 March 1986, the Employer withdrew recogni- tion asserting doubt that the Union continued to repre- 3 Credibility resolutions hereinafter made are occasionally accompanied by objective rationale This is intended to reinforce, not diminish , percep- tions gained through my firsthand observation of the witnesses and their demeanor Furthermore , unmentioned testimony is rejected to the extent that it is irreconcilable with expressly credited evidence sent a majority Thereafter, on 3 April 1986, the Union requested information concerning the identity of employ- ees in Respondent's work force, including those' not on payroll status but having recall rights, together with se- niority dates, rates of pay, and criteria used in effecting recall Respondent declined to provide that information. On 22 May 1986, Respondent, by letter, informed un- reinstated strikers that failure to respond to an inquiry concerning their availability would terminate their reem- ployment rights. By letter dated 5 June 1986, Respond- ent terminated eight strikers because of their failure to respond to that letter, and two others because their re- sponse signified that they did not wish to return. As indicated, the alleged 8(a)(5) violations are based on Respondent's conduct at the bargaining table, its withdrawal of recognition, and its failure to respond to the Union's request for information. The most far reach- ing of the 8(a)(3) allegations is founded on the assump- tion that the strike was caused and prolonged by Re- spondent's unfair labor practices, and hence proscribed discrimination ensued from the failure to duly reinstate the unfair labor practice strikers on their unconditional offer to return to work. The discharge of certain strikers based on alleged strike misconduct, as well as the termi- nation of others, who refused to respond to the inquiry of May 1985, are also alleged to have violated Section 8(a)(3) and (1) of the Act. B. Concluding Findings 1. The alleged refusals to bargain a. The background, the allegations, and their remedial significance The 1983 settlement of an Equal Employment Oppor- tunity (EEO) law suit is central to this overall controver- sy By that action, the parties adjusted claims that Re- spondent had engaged in practices which discriminated against Black and female employees. The General Coun- sel contends that Respondent violated Section 8(a)(5) and (1) of the Act by carrying to impasse, during 1985 con- tract renewal negotiations, its demands for modifications to that settlement. The General Counsel argues that the Employer's conduct in that respect precluded any as- sumption that the impasse ultimately reached in those ne- gotiations was lawful. Hence, it is argued that when Re- spondent subsequently implemented certain terms of its last offer, and withdrew others, it engaged in further in- dependent violations of Section 8(a)(5) and (1). These issues bear critically on the two major areas of remedial concern in this case. First, the 8(a)(5) allega- tions foreshadow the possibility that a significant number of strikers are entitled to extensive backpay and reinstate- ment. In this regard, the General Counsel does not con- tend that such liability would inure if those affected merely are deemed economic strikers. On the other hand, the General Counsel argues that this was not the case, relying on the 8(a)(5) allegations as having caused and prolonged the strike so as to warrant the conclusion that it was an unfair labor practice strike The import of this issue is underscored by Respondent's concession that all strikers were not reinstated within 5 days of their un- CHESAPEAKE PLYWOOD conditional application to return to work as admittedly would be required under the Act in the' case of unfair labor practice strikers Secondly, the above-described 8(a)(5) and 8(a)(3) alle- gations figure prominently in assessment of Respondent's ultimate termination of the bargaining relationship. Thus, against this background of alleged illegality, the General Counsel argues that the withdrawal of recognition was unlawful because it occurred in the context of unreme- died unfair labor practices of a type tending to contrib- ute to employee defections from the Union. b. The bargaining history The plywood plant in Pocomoke City prior to 1980 was apparently operated as a joint venture involving Champion International Inc. and the Chesapeake Corpo- ration. In that year, Chesapeake became its sole owner and operator . Earlier, in 1967, the Union was certified as the exclusive representative of the plant's production and maintenance employees . As indicated, the most recent collective-bargaining agreement was scheduled to expire on 18 June 1985. In prior years, successive collective- bargaining agreements were executed by the parties, ap- parently on an amicable basis, and without resort to strike action In contrast, the 1985 negotiations collapsed with an unsuccessful strike, whereupon on 13 March 1986, the Respondent, having received evidence that a majority no longer wished representation , effectively ter- minated the established bargaining relationship. c. The Equal Employment Opportunity Commission settlement During the late 1970s, a dispute emerged concerning Respondent's treatment of Blacks and female employees. At times material, the active work force represented by the'Union consisted of between 150 and 200 employees. Blacks and females were employed in significant num- bers. In 1975, the Union, together with certain individual employees, filed an employment discrimination charge against Respondent with the Equal Employment Oppor- tunity Commission (EEOC). These charges were deemed meritorious by the EEOC, which sanctioned a lawsuit filed in 1978 in the United States District Court for the State of Maryland. The suit was summarily dismissed, but reinstated on appeal by the United States Court of Appeals for the Fourth Circuit. 649 F.2d 1259 (4th Cir. 1981) The areas of alleged discrimination cited in the EEOC action included: (1) hiring, (2) job assignments, (3) promotions , (4) transfers, (5) training programs, (6) discipline, and (7) general working conditions. The pro- tagonists of the discrimination claim argued that these employment practices created substantial earnings differ- ences based on race and sex. Further adjudication of the EEO complaint was avoid- ed by a written settlement agreement, which was execut- ed by the Respondent on 10 January 1983, and approved by the court on 23 July 1983. (G.C. Exh. 2.) On its face, the settlement agreement appeared to be designed to curb the effects of any gender or race dis- crimination by defining procedures encouraging upward mobility and promotion from within through a combina- 209 tion of tools. A process of job posting and competitive bidding was established as the method for in filling future vacancies. Constraints were imposed on employer discretion in outside hiring. Apprehension in employees about risking a new job were allayed by requiring the employee's restoration to his former position should ad- vancement prove unsuccessful. A major area of conten- tion in the lawsuit was the maintenance department, whose work force of 22 employees included only 2 Blacks The EEO settlement provided a mechanism for correcting this imbalance by establishing an apprentice- ship program to offset outside hiring and to develop op- portunities and preferences for inexperienced incumbent employees. Eligibility for vacancies at the entry level, and progression thereafter within defined maintenance job classifications was to be resolved in favor of the senior qualified employee. The settlement also appears to address a potential for cronyism, which allegedly preju- diced training and earning opportunities of minorities. Previously, an employee awarded weekend overtime could select his own replacement if he elected not to work. The EEO settlement attempted to impose that re- sponsibility on the Company by requiring foremen to make that selection d. The 1984 midterm negotiations In 1984 the Pocomoke City plant was viewed by man- agement as plagued by poor production and substantial losses. Labor relations was an area targeted for correc- tion as part of the process of rehabilitating the plant's profitability. To this end, on 17 August 1984, manage- ment met with the Union. Respondent at that time pre- sented proposals in quest of contract relief. Included were sweeping changes in the seniority/promotion pro- cedures (G.C. Exh. 16(b) and (d)) and a 10-percent-wage cut. (G.C. Exh. 16(c).) Apparently, at that meeting, the Union was informed, inter alia, that the plant had not had positive earnings since 1978, that it had lost over $2 million in 1984 and that due to depressed conditions in the industry, the Pocomoke City plant, to survive, would be required to upgrade its product mix, increase its pro- ductivity, improve quality, and reduce costs. See Re- spondent's Exhibit 8. The Union offered no response at the meeting itself By letter dated 27 August 1984, the Union replied as follows: This is to inform you that the Union has closely re- viewed the proposal of the company to reopen the existing labor agreement on specific items, and has in addition, further considered the circumstances as outlined in our meeting of August 17, 1984. The Union does not feel it would be appropriate at this time to reopen the labor agreement scheduled to expire on June 18, 1985, nor to consider propos- als made by the Company in this meeting. [G.C. Exh. 16.] e. The 1985 contract renewal negotiations and the EEO proposals The Employer's basic posture during the 1985 negotia- tions strongly resembled its unsuccessful 1984 strategy. 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Once more its bargaining demands included terms that on their face, either collided directly with or reduced measureably the effectiveness of terms of the EEO settle- ment. Firstly, a proposed introduction of seniority pref- erences based on job, then department seniority, tended to narrow the opportunities for advancement contemplat- ed within the existing system of plant seniority This would tend to enhance the advancement of White males from jobs and departments scantly populated by Blacks and females, while perpetuating White male domination of those occupations and departments. The deemphasis of plant seniority was accompanied by a further demand eliminating the settlement 's assurance that employees who take promotions do not face job loss due to failure to qualify. Indeed, by virtue of that proposal, apprentices in the maintenance training program could be fired if they failed successfully to complete testing procedures. A more detailed summary of the differences between the EEO settlement and the Employer's final proposal is set forth below. Employer's Final EEO Agreement 1985 Proposal [G.C. Exh. 10(f)] First consideration on Previously, only plant wide promotions given to seniority controlled, and employees with 8 or was the recognized criteria more years of for filling vacancies in Company Service. maintenance jobs under [G C. Exh. 10(f), item Item 7(a) of the EEO 4.] Three types of Agreement, as well as entry seniority: (a) job, (b) in the Maintenance Training department and (c) program defined in Item plant. In consideration 8(b) thereof. of promotions, first preference shall be given to job seniority. Where job seniority is nondeterminative, departmental seniority shall prevail. Where job seniority and department seniority are determinative, plant seniority shall prevail. Qualifications for Maintenance experience is maintenance entry the only requirement for level job require: (a) "Repairman III," the lowest high school education rated journeyman job in or the equivalent, (b) maintenance [G.C. Exh. 2, acceptable scores on art. 7(c)(i).] On-the_ job required employment factors, such as plant tests, (c) scores on seniority, potential standard group qualifications, and work interview, and (d) record are the sole work habits requirements for entry in satisfactory to the maintenance Company. [G.C, Exh. apprenticeship. [Art. 8(b).] 10(f); item 10.] Any regular, full-time employee who meets the qualifications for Repairman Apprentice "B", the initial apprentice position, may apply for transfer into the Maintenance Department. [Openings in Maintenance Department may be filled by hiring outsiders. [G.C. Exh 10(f), item 10, sec. II(A) ] Employer not required to post qualification for a vacant maintenance job. [G.C Exh. 10(f), item 10, II and III ] Qualifications for promotion within maintenance department requires satisfactory completion of undefined checklists. [G.C. Exh. 10(f), item 10, sec. III (A)(2).] Maintenance Training Program broken down into two classifications: "Apprentice "B" and Apprentice "A." Testing after 12 months in each classification. Employee terminated if he fails to satisfactorily complete, unless transferred from a production job, which is available, and which he is capable of performing. [G.C. Exh. 10(f), item 10.] No requirement that Company maintain a viable training program with employee participation. [G.C. Exh. 10(F).] Vacancies in maintenance jobs will be posted and filled by the senior, qualified employee with management's selection subject to grievance procedure [G.C. Exh. 3, art. I(A), appendix "B." G.C. Exh. 2, item 7(a).] Openings in Maintenance Department may be filled only by bidding procedure within the plant. [G.C. Exh. 2, art 7(a).] Employer is required to post qualifications for vacant maintenance job. [G.C. Exh. 3, art. I(B), appendix "B." G.C. Exh. 2, item 7(b).] Advancement dependent upon established competitive bidding procedures, with special requirements limited to defined job experience criteria. [G.C. Exh. 2, art 7(c): Two year apprenticeship; no testing. No discharge for disqualification; unsuccessful candidate is returned to his previous job within 90 days of the start of apprenticeship and, thereafter, to the labor pool. [G.C. Exh. 2, art. 8; G.C. Exh 3, attachment B, II(D).] Company is required to employ "a minimum of one apprentice at all times, assuming the availability of qualified applicants." [G.C. Exh. 2, art. 8(a); G.C. Exh. 3, attachment B, II(G).] CHESAPEAKE PLYWOOD Employee who declines to work scheduled weekend overtime may secure his own replacement. [G.C. Exh 10(F), item 2.] Employee promoted or transferred to new job has 10 days to withdraw, and Company has 30 days to disqualify the employee as unable to do the work. Disqualified employees have no defined rights to an alternative job. [G.C. Exh. 10(F), item 4.] Bidding on jobs outside an employee's line of progression restricted to those having at least 2 years of plant seniority. [G.C. Exh. 10(F), item 3 (B).] If employee does not desire to work scheduled weekend overtime, he will notify foreman, who will attempt to secure a qualified replacement. [G.C. Exh. 2, art. 12(a).] After promotion, employees will be allowed to disqualify themselves during the trial and training period. Employees disqualified on their own initiative or by the Company shall be reinstated to their former positions. [G.C. Exh. 2, art. 11.] No restriction on bidding based on lines of progression or minimum seniority. Employer is required "to fill the position with the senior employee . . . who, in the judgment of the Company, is qualified to perform the job." [G.C. Exh. 2, art. (10(c).] Between 9 April and 23 July 1985, the parties met on some 13 occasions. During this period, Respondent's EEO proposals were revised and upgraded. On 23 July 1985, the Union struck. As the above comparison re- veals, the Company's demands on that date contemplated a substantial departure from the EEO settlement. At no time did the Union capitulate in these areas. Based on the foregoing, it is apparent that the initial factual premise of the General Counsel has been substan- tiated. In addition to the undeniable attempt to alter the EEO settlement, there is no genuine dispute that the con- tract renewal negotiations, effective 23 July, had reached impasse. At that time, there was little, if any, hope that continued meeting would result in either party manifest- ing a will to move from its entrenched position. See, e.g., Television & Radio Artists v. NLRB, 395 F.2d 622, 628 (D.C Cir. 1968).4 In this light, the determinative question is whether the EEO proposals were permissive subjects of bargaining, as the General Counsel contends, or mandatory, as the Respondent urges. For, in accord with long-standing policy, neither party to collective bargaining is free to insist to impasse upon a nonmandatory subject of bar- 4 The General Counsel correctly observes that the alleged violation does not require proof that union representatives specifically objected to the EEO proposals The lack of capitulation, together with the conflict between the Employer's proposal and the settlement, alone suffices In any event, as shall be seen, credible testimony establishes that in resisting employer proposals in this area, explicit references were made to the fact that they violated the EEO agreement 211 gaining. The objective underlying this policy has been explained as follows: Bargaining to impasse over a permissive bargaining subject is a per se Section 8(a)(5) violation because, in effect, it is a refusal to bargain over mandatory bargaining subjects.5 As a corollary, however, the parties on a voluntary basis are free to negotiate with respect to nonmandatory sub- jects, provided they are withdrawn prior to, and in no sense contribute to impasse. See NLRB v. Borg-Warner Corp., 356 U.S 342, 349 (1958). In other words the injection of issues, extraneous to terms and conditions of employment, tends to complicate negotiations and cannot be reconciled with statutory policy favoring the peaceful, expeditious resolution of contract disputes. Here, there can be no dispute that the Employer's EEO proposal focused directly upon terms and condi- tions of employment. Although the Act customarily de- fines such demands as mandatory subjects of bargaining, on behalf of the complaint, it is argued that the EEO proposals were merely permissive, because forbidden by the EEO ageement's fixed term. Thus, the duration clause, article 22 of that 1983 agreement, states as fol- lows: Unless an earlier date is provided elsewhere in this agreement, Sections 7-12 of the Agreement shall cease to have any force or effect upon expiration of 5 years from the date of the agreement. Prior to that time, the terms of Sections 7, 8, 10, 11 and 12 can be changed by agreement of the Company and the Union.6 Respondent contends that, notwithstanding the dura- tion clause, it lawfully maintained its EEO proposals to impasse. In support, Respondent observes that the agree- ment itself does not give either party "an absolute veto over proposed amendments." This comment undercuts Respondent's entire defense. The issue is whether the statute, in promoting collective bargaining, precludes a party from beclouding renewal negotiations with matters previously resolved and already binding Quite clearly, the EEO settlement is not subject to an interpretation that would permit either signatory, unilaterally to amend, alter, or abrogate articles 7, 8, 10, 11, and 12 of that agreement during its 5-year term. That limitation was not relaxed by the obligation to incorporate most of these terms in the "Labor Agreement." Article 20 is irreconcilable with Respondent's claim that- "Any changes were subject to collective bargain- ing, in which each side could exert its economic influ- ence over the other " To hold otherwise would produce 5 C Morris, Developing Labor Law, 770 2d ed 1983) Idaho Statesman, 281 NLRB 272 (1986) 6 All substantive provisions of the settlement, except art 9, which per- tained to advancement to supervisory positions, and art 10, concerning hiring, were to be incorporated in the ensuing labor agreement Consist- ent therewith, art 7 (maintenance employment), art 8 (maintenance train- ing), art II (job protection), and art 12 (overtime) appear in the 1982/1985 collective-bargaining agreement 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an anomaly, whereby the Employer might unilaterally annul the EEO agreement Thus, under the law, the right to raise the issue embodies the right to abrogate under the well-settled principle that after impasse an em- ployer is free to impose changes in employment terms unilaterally. NLRB v. Katz, 369 U.S. 736 (1962). The ends of collective bargaining would hardly be served by principles encouraging a party to seek impasse in order to extricate itself from a disadvantageous contract. Con- siderations of stability preclude the acknowledgement of any right in the Respondent to "veto" terms of an other- wise binding contract , simply by maintaining an unyield- ing stance during the renewal negotiations. The logic of and harmony between this view and stat- utory policy is enforced by the precedent. For, "A party is not required to rebargain that which has already been secured to him by binding past agreement ; He may do so if he wishes." See Harvstone Mfg. Corp., 272 NLRB 939, 942 (1984). Consistent therewith, well-settled authority establishes that, under Section 8(d) of the Act, unless the parties have expressly agreed to midterm modification of a fixed-term contract, economic pressures may not be in- voked in furtherance of demands for contract modifica- tion. See Herman Bros., Inc., 273 NLRB 124, 127 (1984); NLRB v. Lion Oil Co., 352 U.S. 282 (1956). Neither arti- cle 20, nor any other term of the EEO settlement author- izes either the Union or the Employer to pressure the other into rescission or modification of that agreement.' As stated by the Supreme Court in Allied Chemical & Alkali Workers v. Pittsburgh Glass, 404 U.S. 157, 185-186 (1971) "Section 8(d) defines the obligation to bargain to be . . . the duty to maintain . . . mandatory terms with- out unilateral modification for the duration of the collec- tive-bargaining agreement ." From this injunction , it fol- lows that an employer's attempt to either unilaterally modify or insist to impasse on modification of an extant contractual obligation is a permissive subject of bargain- ing. The desirable Federal policy encouraging stability, while mitigating industrial strife, would be seriously im- paired if one party to a binding agreement could force renegotiation on the part of the other through threat of economic pressure . These statutory interests would be even more severely prejudiced if the agreement could be abrogated unilaterally merely by pressing the matter to impasse In this case , the EEO settlement established a firm commitment on the part of the Employer to main- tain certain employment procedures . It also set forth the duration of that obligation . Though embodying mandato- ry subjects of bargaining , once executed, the EEO agree- ment became subject to the strictures of Section 8(d) of the Act. Allied Chemical & Alkali Workers v. Pittsburgh Glass, supra. Accordingly, absent mutual assent, those terms could not be unraveled during the contract renew- al negotiations in 1985 . As an impasse was reached on 22 July 1985, and as the final offer by the Employer submit- ted at that time included proposals requiring a modifica- tion of the EEO settlement agreement, it is concluded that Respondent was guilty of an unlawful refusal to bar- ' For the above reason, Respondent 's reliance on cases involving prop- erly authorized reopener negotiations is misplaced gain by carrying the negotiations to deadlock through its continuing insistence on such terms. Having so found , it is irrelevant that non-EEO matters also may have contributed to impasse. In Latrobe Steel Co. v. NLRB, 630 F.2d 171, 180 (3d Cir. 1980), the court stated: [A] party may not avoid bargaining on the manda- tory subjects by insistence on nonmandatory pro- posals. . . . This is precisely what occurs when a party's insistence on nonmandatory proposals causes negotiations between the parties to reach an im- passe. . . . [I]t is well-settled that the insistence upon the nonmandatory proposal need not be the sole cause of the parties' failure to reach agreement in order for a Borg- Warner violation to be found. The Respondent would diminish the obstructive influ- ence of its EEO proposals , contending that the break- down was due to economic issues. It is true that at the inception of the strike little had been resolved , and sig- nificant mandatory subjects were left open These includ- ed wages, pensions, safety, and welfare . Beyond that, there is little evidence to support the Respondent's premise.8 The General Counsel points to specific testimony dem- onstrating that proposed EEO changes were among the factors precluding agreement. In this respect, Charles Campbell, the Union's regional president, avers that he entered negotiations on 17 June because of the Compa- ny's EEO proposals . He testified that at the negotiating session of 17 July he informed John Hockman, the Com- pany's chief negotiator, that if the EEO issues were re- moved the parties would be close to a settlement. Camp- bell further testified that at the 19 July bargaining ses- sion, after the Company gave its final offer, the meeting closed with Campbell telling Hockman. "John, you're forcing me out on strike over the EEO settlement and there's nothing that I can do about the EEOC settlement I'm bound by law." Although Respondent's testimony was less definitive, there is no clear cut denial that EEO was debated. Thus, Respondent's negotiating team consisted of Sharon Miller, Respondent's Woodlands manager; Ronald G. Roberts, general manager of the Wood Products divi- sion; and Hockman, the spokesman. Hockman testified that while the Union during the 1984 reopener discus- sions mentioned that the EEO proposals were a hurdle he had no clear recollection that the Union objected to this package during the 1985 contract renewal negotia- tions9 Sharon Miller and Ronald Roberts confirmed that 8 Respondent's contention that the impasse was caused by union insist- ence that any settlement conform to a so-called "industry pattern" is con- jectural There is no evidence that the Union successfully achieved out- side settlements establishing any degree of uniformity, or that it went down to the wire on the basis of considerations irrelevant to the basic work unit There is not a scintilla to suggest that the Union ever stated that agreement was conditioned on the Employer's adherence to a settle- ment achieved with one of its competitors See, e g , Typo service Corp, 203 NLRB 1180 (1973) If the EEO agreement was mentioned in 1984 , it is difficult to imag- ine that it was not raised in 1985 in opposition to substantially identical proposals by the Company CHESAPEAKE PLYWOOD on 17 June when Campbell entered the negotiations he argued that the seniority system and departmental lines of progression proposed by the Company were illegal. i o Miller, like Hockman, appears to have had a limited recollection, but admitted that the EEO settlement was mentioned during the contract renewal negotiations, al- though he could not remember the number of sessions in which it was brought up or who mentioned it. Roberts could not recall whether the EEO settlement was raised, but admitted that the Union opposed the Company's pro- posals in the area of overtime scheduling, seniority, bid- ding eligibility, job progression, and the multicraft classi- fication in the maintenance department. On balance, the testimony centers on a question of degree, with the truth lying somewhere between highly partisan accounts. Even if Campbell overstated the weight actually given the EEO dispute, there is every reason to believe that it was a significant issue. Thus, the Employer's proposals conflicting with the EEO settle- ment are traceable to the 1984 renewal negotiations, and remained substantially in tact from the outset of the 1985 negotiations, through 13 negotiation sessions, until 23 July, when the Union struck. During this entire time- frame, concessions on the part of the Union in the area were nominal . In this light it is fair to assume that relief from the EEO provisions was a major issue to the Re- spondent, and persuasive evidence does not exist, war- ranting a conclusion that the Union viewed them other- wise. In sum, the evidence fails to establish that impasse would have occurred, even if Respondent had not insist- ed on the nonmandatory proposals. CF. Latrobe Steel v. NLRB, 630 F.2d 171 (3d Cir. 1981). Accordingly, Re- spondent violated Section 8(a)(5) and (1) of the Act by at least partially causing a deadlock in negotiations on the basis of nonmandatory demands effectively modifying the EEO settlement. f. The nature of the strike The General Counsel contends that the above, and other unfair labor practices caused and/or prolonged the strike, hence warranting reinstatement preferences for the strikers. In support, Campbell, with corroboration from Flora Copeland , an International representative who serviced the plant during the 1985 negotiations, tes- tified that prior to the final prestrike union meeting, which was held on 22 July, he drafted a motion to be presented to the membership. The document allegedly reflected a recommendation from the negotiating com- mittee that the membership turn down the Employer's proposals and authorize a strike because of the EEO set- tlement proposals. Campbell and Copeland also testified that 'at this, and an earlier , union meeting employees voiced specific concerns about possible changes to the EEO settlement. 10 Respondent makes much of the fact that Campbell , during this ses- sion , mentioned a suit against Georgia Pacific , Respondent's competitor, which focused on lines of progression, and his comment when confronted with the Company's evidence contradicting his view,that he "doesn't lie about everything " Contrary to the Respondent, I am unwilling to draw any conclusion from this example of what appears to be little more than argumentative discourse at the bargaining table 213 Respondent attacks this testimony on grounds of plau- sibility. It points to the fact that the EEO issue was not addressed on the picket signs during the early stages of the strike. i i Respondent also addresses the suspicion concerning the Union's failure to preserve Campbell's handwritten motion. I share these concerns. If one is to believe Campbell, he informed company negotiators as early as 18 June that their proposals were illegal and that at the 17 July session he accused Hockman of violating the NLRA by negotiating on the EEO settlement to im- passe. Campbell assertedly took the occasion to threaten to file unfair labor practice charges if the Company con- tinued to insist on its maintenance training proposal. In fact, the Union did file unfair labor practice charges on 9 August 1985, a few weeks after the strike began. Against this background, it is difficult to believe that these skilled union negotiators would have made no special effort to preserve the motion that, according to Campbell and Co- peland, listed EEO as the sole issue on which employees chose to strike. The spectre of litigation beclouded the negotiations since June, and neglect of such significant evidence does not enhance the believability of their ac- counts. Also mysterious is the fact that no effort was made to preserve the picket sign allegedly made by Campbell on 18 July at a meeting of the negotiating committee . That sign was to be used as a sample listing violations of the EEO agreement as the sole grievance. There-is no evidence that such a sign or a replica was present when picketing began on 23 July. In sum, my un- favorable impression of Campbell's demeanor was con- firmed by his improbable testimony that the EEO pro- posals were the only strike issue. This is particularly so when one considers the Employer's position on econom- ic matters, including its cost-cutting objectives. At the same time, as found above, EEO matters were among the issues contributing to the deadlock. Respond- ent's evidence tending to mitigate this fact is less than compelling. "[A] strike will be deemed an unfair labor practice strike if it was caused , at least in part, by an unfair labor practice." Struthers Wells Corp. v. NLRB, 721 F 2d 465, 471 (3d Cir. 1983). Here, despite 7 years of EEO litigation, Respondent's proposals as a whole would leave females and minorities with few guarantees against future discrimination . With this in mind, in a work force that was 60 percent Black and 20 percent female, the conclusion is inescapable that the EEO issues were among the material causes for strike action. I infer that they were. Accordingly, I find that those who par- ticipated in the walkout at the inception were unfair it Respondent offered articles which appeared in several area newspa- pers, attributing statements to Flora Copeland concerning the causes of the strike The articles are rank hearsay and are not entitled to probative weight See R Exhs 21(a) and (b) Nor am I persuaded that testimony by Ronald Smullin, a maintenance department employee and member of the negotiating committee, necessarily diminishes the importance of the EEO issue Smullin was obviously confused, and had difficulty recalling the events in question He did relate that, while the Union did not object to the maintenance training proposal, it did object to proposed restric- tions on entry into the maintenance department Thus, his testimony was not entirely inconsistent with that of Campbell, for it confirms that the Union opposed at least one important aspect of the Employer's proposal 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD labor practice strikers . NLRB v. Fountain Manor, 785 F.2d 195 (7th Cir. 1986). g: The bargaining session of 18 September 1985 On 18 September 1985, the parties met for the first time since the strike began . After the contract issue was reopened, the Union broke off negotiations that morning, but the Employer, pursuant to the Union 's request, agreed to meet again that afternoon During the after- noon session, detailed proposals were exchanged. Through that tendered in its behalf, the Company: (1) abandoned its intention to change article 8, section 10 of the EEO settlement agreement until expiration thereof, and (2) withdrew demands for changes in the mainte- nance ,entry and training programs . In addition, the Re- spondent reminded of retraction of prior concessions in the form of a wage reopener , a $500-signup bonus, union shop and checkoff. The Union indicated that it would get back ' to the Company and the meeting closed with- out discussion of the revised offer. Both sides attempted to make capital of what tran- spired at this session . An additional 8(a)(5) and (1) allega- tion is based on the tightening of position manifested by Respondent's dropping of its 19 July offers of a $500 bonus for signing , a wage reopener, union security and checkoff. The General Counsel contends that this was not simply indicia of bad faith, but itself constituted an independent unfair labor practice. At the same time, the Respondent argues that the withdrawal of its EEO relat- ed proposals purged the strike of any unlawful influ- ences, and hence from that day forward , the strike was waged purely in furtherance of economic objectives. Firstly, as respects the alleged refusal to bargain, the General Counsel strains to argue that the Employer's economic concessions were on the table as of 18 Septem- ber. The evidence does not substantiate that this was so. With the exception of union security and checkoff which were historically a matter of contract , the other conces- sions were first offered by the Respondent in the Compa- ny's proposal of 18 July . The package was delivered to the Union at the negotiating session of 19 July. See Gen- eral Counsel's Exhibit 10(f). By letter dated 22 July, which was hand -delivered to Local President Richard Truitt with a copy to International Representative Flora Copeland , the Union was advised as follows: Please be advised that the company's offer of a cash bonus and a wage reopener must be withdrawn should it not be accepted by the Union on or before 12:01 a.m , July 23, 1985. I continue to hope that our offer will be accepted [R. Exh. 6.] Roberts credibly testified that these concessions were withdrawn after the strike began because they were of- fered as a payoff to avoid a stnke. Thereafter, by letter dated 30 July, to Richard Truitt with a copy to International Representative Flora Cope- land 'as well as International Union Headquarters in Memphis, Tennessee, the Union was advised as follows. The strike by Local 5-346 against Chesapeake Plywood, Inc. has now lasted a full week. So far, the Company has operated the plant on a reduced schedule with supervisory personnel. We do not intend to continue to do so indefinitely. You and all other production employees are in- vited to return to work. We hope you will do so The terms of employment of employees who choose to return to work will be those set forth in the Company's final offer dated July 19, 1985, except for the cash bonus, the second year wage reopener, and Articles XXII [Union Security] and XXIII [Check off] of the expired Labor Agreement. For the time being we are operating from 8:00 A.M. to 6:00 P.M. Monday through Friday. Any employee who wishes to return to work should call the plant at 957-1501 for further details. If insufficient employees choose to return to work, the Company will begin hiring replacements on or about August 5, 1985. I hope this will not be necessary. Contrary to the General Counsel, the reopener, bonus, union-security and checkoff items were withdrawn long before 18 September. The above documents, delivered to responsible union negotiators, clearly and unmistakably rescinded concessions in these areas. Furthermore, this step was initiated before the Union filed its initial unfair labor practice charge on 9 August and was in no way linked to the 18 September withdrawal of provisions af- fecting the EEO settlement. Moreover, I am mindful of no authority deeming mere withdrawal of contract pro- posals a per se unfair labor practice. Instead, illegality re- quires a showing that this conduct was accompanied by subjective bad faith in the form of a desire to subvert the bargaining process in order to avoid reaching agreement or to undermine the Union. i 2 Absent evidence of bad faith, the Act does not artificially freeze the Employer's bargaining stance, irrespective of shifts in the relative bargaining strength of the parties, the purposes behind earlier concessions, or the duration of the strike and its effectiveness. 13 12 The General Counsel appears to argue that the Board 's decision in Harowe Servo Controls, 250 NLRB 958, 961 (1980), establishes the princi- ple that the employer violates Sec 8(a)(5) where, in the context of an unfair labor practice strike, it offers more regressive proposals without economic justification The General Counsel overreads Harowe In that case, the Board regarded the tightening of the employer 's bargaining pos- ture as evidence of bad faith, not as an independent unfair labor practice Nor does Pacific Grinding Wheel Co, 220 NLRB 1389 (1975), confirm the General Counsel 's view that an unfair labor practice strike imposes a pre- sumptive limitation on the employer 's right to reduce its proposals There, as in all other cases bearing upon the issue , the employer's regres- sive bargaining stance was not an independent unfair labor practice but merely evidence of its "intention to avoid reaching agreement and to humiliate the employee's bargaining representative " Hence, the General Counsel's attempt to distinguish Barry-Wehmiller Co, 271 NLRB 471 (1984), on grounds that an economic , rather than an unfair labor practice strike was involved is unpersuasive 13 The General Counsel's reliance on Yearbook House, 223 NLRB 1456, 1465 (1976), also is misplaced That decision does not acknowledge that the Board has embraced the notion that employer action , which cre- ates new issues during bargaining , constitutes a per se violation of Sec 8(a)(5) In that case, the Board simply affirmed an administrative law judge's conclusion that the employer's 13 new proposals "were predict- ably unacceptable to the Union" and hence warranted the inference that Continued CHESAPEAKE PLYWOOD While the judge appears to have viewed the Re- spondent's reasons as insufficient justification for withdrawing or revising its proposals . . . "It is immaterial whether the Union, the General Counsel or [the administrative law judge] find these reasons totally persuasive." What is important is whether they are "so illogical" as to warrant the conclusion that the Respondent by offering them demonstrated an intent to frustrate the bargaining process and thereby preclude the reaching of any agreement. In any event, in this case, the Employer has afforded legitimate economic justification for its bargaining stance. The bonus and wage reopener were conditional offers. They represented a departure from the Employer's oth- erwise rigid position on wages, which it consistently maintained during the 1985 bargaining, as well as the abortive 1984 attempt at reopening. It was conceived, communicated, and utilized as a means of averting the strike. When that approach failed, those terms were withdrawn. The union-security/checkoff provisions were also withdrawn when it became apparent that the hiring of permanent replacements would be necessary and out of a rational desire to relieve those employees from these provisions. In my opinion, the Employer's action with respect to these four items was routinely built upon its interest in securing a favorable contract in a plant which was experiencing serious losses Its strategy did not tran- scend the risks contemplated by the bargaining process and did not suggest a bad-faith attempt to impede negoti- ations. See American Thread Co, 274 NLRB 1112, 1113 (1985). Accordingly, as there is neither evidence that the Em- ployer did not intend to reach agreement, nor indication that the revision in its bargaining stance after 23 July was part and parcel of a broader scheme to discredit or eliminate the Union, the 8(a)(5) allegation in this respect shall be dismissed. By way of defense, Respondent points to the 18 Sep- tember bargaining session as converting the strike from unfair labor practice to economic. In this respect, it is undisputed that during that session the Employer with- drew its proposal modifying the EEO settlement agree- ment's maintenance department provisions, as well as that allowing employees themselves to select overtime replacements. In this connection, the General Counsel al- leges that Respondent's 18 September withdrawals did not include all demands seeking to reduce its obligations under the EEO settlement. Respondent argues that it withdrew "the allegedly offensive proposals." Here, the General Counsel correctly observes that the Employer's 18 September action left in tact its demands for: (1) eliminating plant seniority, (2) establishing specif- ic lines of progression, (3) allowing an 8-year employ- ment preference, (4) imposing a 2-year employment re- quirement on bidding into a new line of progression, (5) the employer did not approach the bargaining table with an open mind and purpose to reach agreement 223 NLRB at 1465 Here, the General Counsel's proof does not allege, and indeed it is not contended, that the Respondent's withdrawal of concessions was ulterior to objectives inimi- cal to good-faith bargaining Indeed, see Barry-Wehmiller Co, above at 473 where the Board described the critical issue as follows 215 shortening the time period for qualifying in higher rated job, and (6) eliminating a disqualified employee's right to return to his/her former job. 14 Only item 6 of these listed modifications conflicted directly with specific terms in the settlement agreement. Thus, according to ar- ticle 11 thereof, it was stated as follows: "Employees who are disqualified on their own initiative or by the Company will be reinstated to their former positions." Beyond article 11, the elements of the Respondent's EEO proposal, which survived the 18 September re- trenchment, did not conflict en haec verba with the EEO settlement. However, the contemplated cutback in assurances against discrimination remained a very signifi- cant consideration. Thus, the promotion procedures es- tablished in the EEO settlement were at least partially triggered by seniority, with plantwide, being the sole recognized formulation in place prior to 1985. Neither occupational, nor departmental priorities existed. Fur- thermore, minimum employment history was not requi- site to an employee's participation in the bidding proce- dure. And senior employees, such as those having 8 years' service, i 5 enjoyed no absolute preference. In short, the 18 September revisions did not alter employer demands, which effectively undermined the EEO settle- ment by supplanting existing seniority criteria with an entirely distinct system of preferences for advancement, transfer, and the filling of vacancies generally. On these facts, Respondent's claim lacks merit. The law does not permit a party to frustrate the intent of an agreement by indirect action that has the same substan- tive effect as a direct breach. Indeed, the desirable policy encouraging voluntary adjustments would suffer dramati- cally if a party were required to reject every compro- mise until each and every tactic which might undermine the purpose of settlement had been anticipated and re- stricted by express, unmistakable terms There can be little question that the EEO settlement was founded on an accommodation designed to encourage Blacks and female workers to compete under the established bidding procedure and to facilitate equal opportunity within that framework. To accomplish that objective, it was neces- sary to correct the alleged "concentration of White males in certain job categories and Blacks and females in other job categories, creating substantial race-and sex- based pay differentials in the workforce." 659 F.2d at 1262 The restraints on competitive bidding envisioned by a system of job and departmental seniority , as well as a minimum length of service requirement inherently tend to dampen mobility, and in doing so, would tend to per- petuate the race and gender profiles of various jobs and departments, including those dominated by caucasian males. The consequences of these proposals would frus- trate the EEO settlement no less than had each condition been specifically outlawed therein Accordingly, it is 14 There is no evidence that any of these provisions were agreed by the Union or endorsed by the latter as a fitting subject for the negotia- tions 15 The 8-year seniority preference in the Employer's proposal would not appear to be a substantive departure from the system of plantwide seniority Rather, it would seem to recognize an exemption of the more senior workers from the limitations of departmental and job seniority 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD concluded that the Respondent's continued insistence on 2 years of seniority for eligibility to enter the bid proc- ess, as well as preferences based on job and departmental seniority and lines of progression, constituted a severe re- striction on the system of plant seniority contemplated by the EEO settlement. Moreover, the substitution of a complicated process of requalification, rather than guar- anteed restoration to former positions, as a consequence of an unsuccessful job change entailed a clear departure from specific guarantees in the EEO settlement. Where a party has injected nonmandatory subjects, and persisted on them to the point of impasse, the illegal consequences of that action will be redressed only on an unambiguous, clearly communicated, total withdrawal of those de- mands. A misunderstanding, albeit in good faith, as to the scope of the proposals which must be excised affords no defense. The bargaining table must be cleansed of the obstructive issues. Thus, the strike did not lose its char- acter as an unfair labor practice strike on and after 18 September. As indicated, the strike terminated on 29 December 1985, when an unconditional offer to return to work was made on behalf of all strikers. General Counsel's Exhibit 4. Earlier, Respondent, on 4 November 1985, had estab- lished a perferential rehire list. Respondent, at the strike's end, being of the view that those requesting reinstate- ment were economic strikers, placed them on that list. By Respondent's letter dated 2 January 1986, those placed on the list were so informed and were also told that there presently were no available jobs but that they would be recalled as vacancies arise General Counsel's Exhibit 7.16 Having found that the strike, at all times material, was an unfair labor practice strike, it follows that the Re- spondent violated Section 8(a)(3) and (1) of the Act by failing to effect, within 5 working days of the above-de- scribed offers to return to work, immediate reinstatement of all strikers who previously had not been recalled and who did not engage in misconduct found to be of a dis- qualifying nature.17 h. Unilateral implementation of proposals The final allegation contesting the Employer's bargain- ing tactics derives from the General Counsel 's assertion that Respondent, after the strike began, implemented its final offer, despite the absence of a valid impasse. In this connection, Ronald Roberts stated that he believed that Respondent placed in effect the following terms of its final offer: (1) revised starting rate for new employees, (2) extended probationary period, (3) departmental se- niority, including lines of progression, (4) limitations on bidding to those with 2 years' seniority with a preference to those having 8 years of seniority Though a might shaky, this was the sole evidence offered by the General Counsel in support of this allegation. In any event, having found that the impasse was at least partially at- tributable to Respondent' s insistence on a nonmandatory subject of collective bargaining, normally, it would follow that unilateral action would constitute a further unlawful refusal to bargain and violate Section 8(a)(5) and (1) of the Act. See, e.g., Massillon Community Hospi- tal, 282 NLRB 675 (1987). In this area, however, the Board distinguishes between strikers and replacements and has held that "even in the absence of impasse, an employer may lawfully change the terms and conditions of employment for strike replacements after a collective- bargaining agreement terminates." Marbro Co., 284 NLRB 1303 (1987). Here, the paucity of evidence ad- duced by the General Counsel is vague and off-handed and neglects to establish that any changes impacted on employment conditions of restored strikers. Hence, on authority of Marbro, the 8(a)(5) and (1) allegation in this respect shall be dismissed. 2. Discrimination and restraint against strikers a. The refusal to reinstate The complaint alleges that Respondent violated Sec- tion 8(a)(3) and (1) by failing to reinstate the unfair labor practice strikers immediately on their unconditional ap- plication to return to work. b. The letters of 22 May and 16 June 1986 By letters dated 22 May 1986, Respondent informed all unreinstated strikers, still on the preferential hiring rehire list, as follows. Several months ago, you were informed that your name had been placed on a Preferential Rehire List. The Company has been attempting to contact employees as vacancies occur in jobs they previous- ly held. In many instances, the Company has been unable to contact employees or get them to respond to written correspondence. In other instances employ- 16 In its answer , and again at the hearing , on 4 March 1987, Respond- ent argued that the allegations based on the failure to reinstate the unfair labor practice strikers, as well as the 22 May letter and the 5 June termi- nations, are time-barred by Sec 10(b) of the Act There is no merit in this contention "It is well settled that the timely filing of a charge tolls the time limitations of Section 10(b) as to matters subsequently alleged in an amended charge which are similar to, and arise out of the same course of conduct, as those alleged in the timely filed charges " Pankratz Forest Industries, 269 NLRB 33, 36-37 (1984) Here, the original charge filed on 9 August 1985 related exclusively to refusal-to-bargain allegations It was not until 20 January 1987 that this charge was amended to allege that the failure to reinstate the stnkers, commencing 1 November 1985, violated Sec 8(a)(3) and (1) of the Act The only charge, in its original form, al- leging a violation of Sec 8(a)(3) and (1) was that filed in the interim on 21 January 1986 That charge, as later amended, on its face pertained only to named strikers, each of whom was allegedly discharged for strike misconduct Nonetheless, it remains clear that the events in controversy here, though not specifically the subject of a timely independent unfair labor practice charge, occurred when pending timely filed charges ac- cused the Employer of refusing to bargain in good faith and discrimina- torily discharging certain strikers The more recent allegations as well as those covered by timely filed, pending charges emerged from the same basic labor dispute, and "concern the Company's response to the Union's" effort to secure a new contract Rock Hill Telephone Co. v NLRB, 605 F 2d 139, 142 (4th Cir 1979) As such, it is concluded the matters were fully litigated, without suggestion of prejudice, and without offense to Sec 10(b) of the Act " The parties stipulated that some or all the individuals listed in ap- pendix A of the complaint would be entitled to participate in the remedy should a violation be found in this respect It was understood by the par- ties that specific identification of those individuals would be left to reso- lution during compliance stages of the proceeding CHESAPEAKE PLYWOOD ees have found other work and declined our offer of reinstatement. These circumstances have resulted in delaying the return to work of people who wish to come back and has led to unnecessary temporary understaffing For these reasons, we have decided to request you to complete the bottom of this letter and return it to Chesapeake Plywood by June 4, 1986. If no response is received by the Company by June 5, 1986, your name will be removed from the Preferential Rehire List I wish to remain on the Preferential Rehire list. My current address and phone number are: I do not wish to return to work at Chesa- peake Plywood because I have found another job. [G.C. Exh. 14(a).] The General Counsel alleges that the above letter threatening removals from the preferential hiring list in- dependently violated Section 8(a)(1) as a restraint on the right to strike I agree that, in the circumstances, remov- al from the preferential hiring list was tantamount to dis- charge. Hence, the consequence of failure to respond to the May letter was forfeiture of the rights held by the stokers under Laidlaw Corp., 171 NLRB 1366 (1968). As such, the letter violated Section 8(a)(1) of the Act. As matters turned out, eight employees (Eric Allbrit- ton, Robert Davis, Joseph Greene, John H. Lutz, John Palen, Edward Sanchez, Myron Schmidt, and Alice Tarr) did not respond. Consistent with the above warn- ing on or about 16 June 1986, Respondent, by mail, indi- vidually terminated all eight, as follows: By letter dated May 22, 1986 you were requested to advise the company of your wishes to remain on the preferential re-hire list. The letter stated that "if no response is received by the company by June 5, 1986, your name will be removed from the prefer- ential re-hire list." Our records indicate that we received no re- sponse from you and accordingly your name has been removed from the preference re-hire list. [G.C Exh. 4(b).] In addition, former strikers Russell Brittingham and Ricky Gailliard were removed from the preferential hiring list because both signified that they had found other employment and did not wish to return. The General Counsel contends that elimination of preferential rehire rights to the eight named employees, as well as to Brittingham and Gailliard, violated Section 8(a)(3) and (1) of the Act.18 It is well settled that replaced economic strikers retain their rights to recall until they obtain substantially equiv- alent employment. Lone Star Industries, 279 NLRB 550 (1986). Conflict between that right and management's in- 18 Remedially, this allegation is probably cumulative in the case of all but Brittingham and Gailliard because the former would seemingly qual- ify as unfair labor practice strikers entitled to reinstatement and backpay well prior to Respondent's action of 22 May 217 terest in ascertaining the striker's present and future availability was the precise issue addressed in Charleston Nursing Center, 257 NLRB 554 (1981). There, the Board concluded that an employer could not terminate an eco- nomic striker's reinstatement rights solely because the striker failed to respond to the employer's request for up- dated information. In so holding, the Board stated (at 556):19 Any termination of reinstatement rights based on a failure to respond to such a periodic request would be premature inasmuch as no job vacancy existed at the time of the request. Further, the burden on the employer would be slight: it need only maintain a nonresponding employee's name on the preferential hiring list until he is offered rein- statement and either refuses or fails to respond to the job offer The burden on the employee, howev- er, is severe: termination of all reinstatement rights. Even if the employer did not actually follow through by terminating the employee's reinstate- ment rights, the employee might be deterred from inquiring about future openings. Therefore, we con- clude that, although an employer may legally re- quest replaced economic strikers to furnish current information about their interest in reinstatement, an employer may not require replaced economic strik- ers ato respond to such a request or risk losing their reinstatement rights. Based on the foregoing, the termination of eight em- ployees on 16 June solely because they failed to respond violated Section 8(a)(3) irrespective of their status as eco- nomic or unfair labor practice strikers. See Giddings & Lewis, supra, 567. On the other hand, the like allegations in the case of Brittingham and Gailliard shall be dis- missed. As to them, there is no casual connection be- tween the 22 May letter and their securing alternative employment. The latter, not the former prompted them to waive rights to recall as economic strikers. Coca-Cola of Memphis, 269 NLRB 1101 (1984). Their intent to do so was clearly manifested The information made avail- able to the Respondent was sufficient to establish that they preferred, on a voluntary basis, the "comparable employment" they had secured. Cf. Lone Star Industries, supra at 563.20 19 Although it is conceivable that a different result might follow where the employer demonstrates a specific business necessity, that burden is not met merely on a showing of "administrative convenience " See, e g, Giddings & Lewis, Inc, 264 NLRB 561, 567 (1982), Penn Corp, 239 NLRB 45, 49 (1978), enf denied by an equally divided court in 630 F 2d 561 (8th Cir 1979) Enforcement of Giddings & Lewis, was also denied 710 F 2d 1290 (7th Cir 1983) However, the court agreed in principle that a notice requirement designed to extinguish preferential hiring rights of strikers is inherently destructive of employee rights The court also ac- knowledged that "administrative convenience" does not rise to the level of legitimate and substantial business justification 710 F 2d at 1285-1286 The court stated "[W]hile professed difficulties in locating employees with preferred hiring rights alone cannot justify a notice requirement such as the one before us, when those difficulties impede the growth and progress of a company, then a notice procedure may be proper " 710 F 2d at 1287 No such showing is made here 20 No different result is required by cases holding that the employee's preference will not be inferred simply from the fact that the striker, labor- Continued 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD c. The misconduct discharges (1) Preliminary statement On or about.15 January 1986 Respondent terminated six employees solely on grounds that they participated in strike misconduct. All were covered by a prior offer to return to work. The complaint alleges that Respondent violated Section 8(a)(3) and (1) in each case. Under established Board precedent, the discharge of a striker is presumptively unlawful. However, rebuttal is substantiated on the Employer's showing of an honestly held belief that the striker engaged in the misconduct for which he or she was discharged. See Rubin Bros. Foot- wear v. NLRB, 203 F.2d 486 (5th Cir 1953). Not all mis- conduct will suffice. The employer's burden is further re- fined by the requirement that the "misconduct . . under the circumstances existing . . . reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984); Keco Industries v. NLRB, 819 F.2d 300 (D.C. Cir. 1987).21 Having proven these ele- ments, the burden shifts to the General Counsel to estab- lish that the employee did not in fact engage in the dis- qualifying conduct. NLRB v. Burn up & Sims, 379 U.S. 21 (1964). By the way of overview, it is noted that each of the dischargees received identical letters from the Respond- ent, which in material part stated as follows: You have been identified as having engaged in seri- ous misconduct while on strike. Accordingly, your request for reinstatement is denied, and your em- ployment is terminated effective this date.22 The decision to discharge the strikers was made by Ron Roberts, general manager of Respondent's Wood Prod- ucts division. The misconduct assigned consisted of al- leged threats by the strikers to harm persons and proper- ty, vandalism, and fighting. In this regard, the General Counsel makes a sweeping challenge to the right of Respondent to effect any mis- conduct discharges in consequence of this strike. First, it is argued that even in the event of serious misconduct the discharge would be unlawful if the alleged miscon- duct was a "spontaneous eruption of anger not intended mg under economic pressures of an existing strike, had obtained another job See, e g, K & K Transportation Corp, 262 NLRB 1481 (1982), and cases cited at 1493 Dismissal here, however, would not alone affect Brit- tingham and Gailliard's participation in any remedy that might have ma- tured earlier in consequence of their status as unfair labor practice strik- ers 21 Contrary to the General Counsel, the fact that a strike may have been provoked by unfair labor practices imposes no obligation on an em- ployer to act with greater leniency than in the case of economic strikers Cf NLRB v Thayer Co, 213 F 2d 748 (1st Cir 1954) In arguing that any misconduct here was outweighed by the Respondent's unlawful conduct, the General Counsel overlooks Clear Pine Mouldings, supra at 1047 In an apparent attempt to persuade that the Thayer doctrine remains viable, the General Counsel cites PRC Recording Co, 280 NLRB 615, 650 (1986) The General Counsel must have known that the views of the judge in that case predated Clear Pine's repudiation of Thayer Moreover, the judge's approach there obviously did not receive Board approbation For, the Board upheld the discharge of all 24 unfair labor practice strikers as lawful "See G C Exhs 8(a)-(f) to coerce strikers nor reasonably having that effect." The General Counsel's position cannot be reconciled with Clear Pine Mouldings. The test in that case in no sense relates to the motive of the perpetrator, but turns on whether the "misconduct ... may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." 268 NLRB at 1046. In any event, here in each instance, as shall be seen, Roberts, whether or not having a fair basis for his case against the offender, at least acted on grounds reflecting a general propensity to engage in "serious" misconduct, rather than abstract emotionalism. Equally without substance is the General Counsel's as- sertion that the Respondent's failure to act earlier reflects that it condoned any misconduct perpetrated by the strikers. Such an inference assumes that employers are duty bound to inflame an already tense situation by ef- fecting discharges immediately upon receipt of incrimi- nating evidence in the course of a strike. The Act does not sanction an intrusion on business judgment in these circumstances. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 259 (1939). Finally, The General Counsel argues that an employer is denied the privilege of terminating strikers if it fails to discharge replacements who engage in like misconduct. Firstly, the evidence of misconduct on the part of any replacement here was not sufficiently identical to that of any discharged striker to establish norms of acceptable behavior. Thus, the evidence falls short of demonstrating a disparate reaction in a statutory sense. Moreover, a fundamental difference exists between strikers, whose jobs are threatened by replacements, and the latter, who are endeavoring access to a strike-bound plant. The re- placements are furthering management's legitimate objec- tive of continuing operations in the face of the strike; the strikers have other designs Management's right to oper- ate embraces the right to maintain a check on these de- signs, through disciplinary action where necessary to assure safe transport of those willing to work during an extant or future work stoppage. In sum, the fact that one nonstriker was not discharged despite an overly zealous reaction to daily taunts from the picket line, or that the Employer rehired a former striker, who while picketing, engaged in coercive conduct, involved discretionary acts consistent with the right to maintain operations during the strike. These managerial steps were not taken on pain of forfeiting the right legitimately to invoke disciplinary machinery in the future.23 (2) The individual terminations (a) Larry Smulhn Prior to his discharge, Smullin had been employed by the Respondent for about 7 years. Of the six discharges, Smullin alone served in an official capacity within the Union. Thus, he was a shop steward and a member of the negotiating committee during the renewal negotia- 23 See, e g , Fibreboard Corp, 283 NLRB 1093 In 1 (1987), Longview Furniture Co, 100 NLRB 301 (1952), NLRB v Fansteel Metallurgical Corp, supra, NLRB v Community Motor Bus Co, 439 F 2d 965 (4th Cir 1971) CHESAPEAKE PLYWOOD tions in 1985 . The evidence against Smullin was limited to the early days of the strike. Ron Roberts testified that he elected to discharge Smullin on the basis of threatening conduct towards Roberts, himself; towards Plant Superintendent "Bob Jack" Whealton ; and towards Maintenance Superintend- ent Hugh Tims. Tims, with corroboration from Whealton , testified that on the first day of the strike on 23 July 1985 Smullin, from the picket line, referring to Tims, shouted that others should "drag the son-of-a-bitch out of his pick-up truck" and "I'll stump his godamned [sic] ass." Wheal- ton, who was following Tims in his own vehicle, con- firmed the threat , also indicating that Smullin "lurched forward as if he was going to grab Tims."24 Whealton testified to a second confrontation with Smullin at the picket line which allegedly occurred a few days later on or about 26 July. On that occasion, he and Plant Manager Ed Carter were leaving the plant at midmorning. Apparently as they crossed the picket line, Smullin allegedly cursed Whealton , calling him an "s.o.b and an m.f," shouting "stop your car and I 'll whip your ass." Smullin then got into the pickup truck of another striker, Robert Allen, and with his head out the window shook his fist at Whealton stating, "I 'll get you sooner or later."25 Finally, Roberts testified to a confrontation with Smul- lin on the second day of the strike. At the time, Roberts was in his car, which was parked near the picket line. According to Roberts, a pickup truck driven by Smullin came off the main highway , sped towards Roberts' vehi- cle, veering off only at the last second . After repeating this vehicular assault, Smullin pulled up alongside of Roberts' car so that only a few feet separated the two. After an interlude of name calling, Smullin approached Roberts, who was still in the car, urging him to get out of the car so he could whip his a-. Smullin then opened the car door, stating he would pull Roberts out and "beat the shit out of him," and then he would force Rob- erts to sodomize him in front of everybody on the picket line. Based on this information , which was either perpetrat- ed against or reported to Roberts , Smullin was dis- charged Unquestionably, the threats and the assault of Roberts, under Clear Pine Mouldings, supra, would con- stitute serious misconduct warranting discharge of the striker. The General Counsel argues that the credible testimo- ny demonstrates that the above accusations were either overstated or did not occur. With respect to the Tims in- 24 In briefing the matter, the General Counsel cites Tims' testimony as indicating that "Smullin made no movement towards Tims" In fact, Tims merely testified that he did not observe Smullin move towards him Furthermore, unlike the General Counsel, I see no conflict between the testimony of Tims, who placed Smullin within a "large body of people" and that of Whealton, who related that "Smullin was away from the crowd about a foot or so " While criticism of counsel is always unfortu- nate, in this instance misleading argumentation not only transcends rea- sonable limits of advocacy, but has required a precise verification of all assertions in a 153-page brief-a process that has significantly delayed disposition of this case 25 Carter did not appear as a witness Allen had no specific recollec- tion of-who said what during the incident 219 cident , Smullin admitted to being on the picket line on 23 July but could not recall Tims ' crossing the picket line that day. He denied ever saying that he would whip Tims' a- or kick his a-, nor did he ever threaten Tims, or encourage others to drag him out of his truck. He denied ever blocking vehicles during the strike or threat- ening Tims on any occasion.26 Smullin admitted to exchanging curse words with Whealton, but denied ever having made the threatening remarks described by Whealton. Concerning the Roberts incident, Smullin's account in- cludes important concessions He admits to confronting Roberts as the latter sat in his car. He further admits to opening the car door, while accusing Roberts of having cursed him in retribution for an earlier confrontation. Fi- nally, he admittedly invited Roberts to get out of his car and to repeat what Roberts had said to him on that prior occasion According to Smullm, the incident ended at that puncture, whereupon he returned to his pickup and went down to the picket line. Smullin denied that his re- quest that Roberts come out of his car was an invitation to fight . He denied ever driving the truck in a threaten- ing or wreckless fashion . He denied cursing Roberts or threatening him in any way. On balance, I resolve the critical credibility issues in favor of Respondent . It is my opinion that the General Counsel has failed by persuasive, believable evidence to disprove the threats of bodily harm addressed to Man- agement Representatives Tims, Whealton, and Roberts. Their combined testimony depict Smullin as out of con- trol during the early days of the strike, with a propensity to engage in the conduct attributed to him . My impres- sion of Smullin reenforced my views as to the probabili- ty and underlying truthfulness of this testimony by man- agement officials . Accordingly, the General Counsel has failed to meet his burden and the allegation that Re- spondent violated Section 8(a)(3) and ( 1) of the Act by discharging this striker shall be dismissed.27 26 William Tarr, a striker, offered testimony tending to exonerate Smullin Unlike Smullm , Tarr claims that he did recall Tims crossing the picket line on the first morning of the strike He claims that he was with strikers Pete Hockett , Bobby Davis, Ralph Shreeves, and Smullin Tarr claims to have been within 10 to 15 feet of Smullin Tarr also claims that he, Hockett , and Smullin spoke at the same time , saying "well, there goes the son-of-a-bitch in now " Tarr testified that he did not hear Smullin threaten Tims in any way , nor do or say anything reflecting an intent to attack Tims Striker Davis , who also claimed to have recalled the inci- dent, related that on the morning in question there were probably 90 to 100 people in the area creating a lot of confusion Because of the yelling and shouting, Davis relates that he could not really hear who said what From this the General Counsel argues that Tims and Whealton could not possibly have heard any remarks made by Smullin I disagree An indi- vidual assailed generally is in a far better position to hear and recall than a neutral bystander, whose interests and attention might well be else- where 29 The General Counsel's proclivity to misspeak the testimony is evi- dent in his comment that Julia A Taylor testified that Smullm did not stoke Roberts' car, did not threaten to force Roberts to commit a sexual act or otherwise to threaten Roberts To read the cold transcript allows one to quickly perceive that Taylor had a limited recollection of the inci- dent, and that her testimony was not that these matters did not occur, but simply that she did not remember them She stated, "I only remember two things that he did say " Counsel for the General Counsel's character- ization of this testimony is incomprehensible in light of my expressed ad- monition, during her testimony , that a witness' avowed lack of recollec- tion concerning an incident does not constitute proof that the incident did not occur 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) William Taylor Roberts testified that Taylor's discharge was grounded on reports of misconduct by two employees who joined the strike initially, but returned to work shortly after the strike began. First, employee Scott Hughes testified that he elected to return to work a week after the strike began. The first time he crossed the picket line Hughes claims to have been confronted by Taylor, whose voice rose above the shouting crowd to state that "they were going to get my ass next." Within 48 hours after that incident, all four of the tires on Hughes' vehicle were slashed. Employee Tom Golt testified to a similar experience when he crossed the picket line. He had stayed out on strike for about 10 days before deciding to return to work. The first day back he crossed the picket line in a vehicle driven by Plant Superintendent Whealton. Golt testified, and an affidavit given to the Company on 13 August 1985 confirms, that on 7 August, the first day he reported back to work, Taylor saw him in Whealton's truck and yelled "Tom Golt, you son-of-a-bitch, I'll get you.,, In that same affidavit, Golt avers that he rode to work with Whealton, who arranged to pick him up at the Safeway parking lot. On the morning of 8 August, he met Curtis Milbourne, another nonstriking employee, at that location. As they waited for Whealton, striker Turner and his wife drove by shouting profanities at the two. After Milbourne cursed Taylor, the latter pulled into the Safeway parking lot. Golt avers that he walked over to the truck and asked Taylor what his problem was. Taylor replied that Golt was his problem. Golt told him that if he wanted to whip his a- he should get out of the truck and do it. Turner told Golt to pull him out. Golt said no, observing that Taylor had a wooden "blackjack" about 1-1/2 feet long in his hand. Golt said that if Taylor hit him with that he would retaliate by hurting Taylor. Taylor then threw hot coffee a, Golt, hitting him on the face, left arm, and chest.28 The evidence that William Taylor had threatened em- ployees Golt and Hughes with physical harm, together with the coffee throwing incident satisfied the Respond- ent's initial burden under Clear Pine Mouldings, supra.29 28 Contrary to the General Counsel, Golt's affidavits do not disclose that Respondent lacked an honest belief that Taylor engaged in disquali- fying misconduct at the Safeway parking lot Though Golt admittedly participated in an abusive verbal exchange with Taylor, it was Taylor who elected, without invitation, to drive onto the Safeway lot, and Taylor who raised the level of abusive behavior by throwing the coffee Accordingly, I find that the Respondent was possessed of, and acted on, information furnishing a reasonable basis for belief that Taylor had threatened nonstriking employee Golt and then assaulted him Indeed, the picket line threat to Golt corresponded, in kind, to that reported by Hughes 29 Counsel for the General Counsel correctly observes that a stoker's discharge may not be validated on the basis of misconduct not known at the time of termination See, e g , Western-Pacific Construction Materials, 272 NLRB 1393 (1984) On this basis, the General Counsel urges that I disregard the Hughes' tire slashing incident because it was not mentioned in a position paper submitted by counsel for the Respondent on 10 Febru- ary 1986 See G C Exh 22(b) While this act of vandalism is rejected as a basis for the discharge , in doing so , I rely solely on the fact that linkage between the car damage and Turner is too speculative In contending that Taylor did not engage in any seri- ous misconduct, the General Counsel points to the testi- mony of Taylor, his wife, his father-in-law, and another striker, Robert Lee Davis. Taylor first denied having threatened Hughes. Betty Taylor, his wife, and Al Adkins, his father-in-law confirmed that they never heard Taylor threaten Hughes. Davis related that he did not hear Taylor threaten Golt, but did hear him call Golt a "stupid son of a bitch." Taylor denied that the coffee hit Golt in the face.30 More specifically, Taylor testified that during the period when Golt supported the strike Golt told Taylor that he had obtained a job in Washington, D.C., and had no intention of returning to work at Chesapeake. Taylor placed this remark on the day before the Safeway park- ing lot incident. However, Turner went on to testify that he first observed Golt cross the picket line the day after the Safeway confrontation. Taylor avers that when he observed this, he "was really disappointed in a way be- cause he [Golt) had said he wasn't going to cross." Turner admitted that as Golt crossed, "I just said, there's Thomas Golt, son-of-a-bitch, but I was more or less speaking to myself." Taylor insisted that he made this remark speaking to himself, and that Whealton's pickup truck, carrying Golt, was then approximately 40 feet past the picket line. It is strangely coincidental that Golt who, according to Taylor, was in no position to hear his remark would single out Taylor as engaging in coercive conduct towards him on the occasion in question. It is noteworthy that Turner denied ever saying anything else to Golt as he crossed the picket line. The sequence described by Taylor is also mystifying. Thus, Taylor would have me believe that Golt's return to work was unknown to him, and hence did not pro- voke the Safeway altercation. He disassociates the Safeway incident from his reaction to Golt from the picket line by testifying that the latter stemmed from an earlier remark by Golt that he had secured alternative employment The more probable chronology is that re- lated by Golt; namely, that the Safeway encounter was a byproduct of the ill will evident from the picket line threat of the previous day. On balance, having considered all the testimonial evi- dence, that of Golt, Hughes, Milbourne, and Roberts is preferred and based thereon'31 it is concluded that the Respondent has established by credible proof that Wil- liam Taylor did in fact engage in misconduct sufficiently serious to warrant his discharge. Accordingly, the 8(a)(3) and (1) allegations in this respect shall be dismissed. 30 Taylor, in his prehearing affidavit, simply stated that he threw his coffee at Golt Si Nonstriking employee Curtis Milbourne, who witnessed much of the incident, did not observe the coffee being thrown, but described Golt im- mediately after the incident as showing evidence that he had been hit in the face and across the upper body with a hot liquid Roberts saw similar evidence on the face and shirt of Golt when the latter arrived at the plant that morning, describing him as very upset Taylor and his wife insist that Milbourne, the only outside eyewitness, had his back turned towards them Particularly unbelievable was the testimony of Betty Turner that Milbourne had his back turned during the entire incident By her own account, she was not in a position to observe him at the same time as she was witnessing what was going on between her husband and Golt CHESAPEAKE PLYWOOD (c) Donald Hemmian According to Ronald Roberts, Hemmian was terminat- ed on the following grounds: (1) fighting with nonstrik- ing employee Darryle Dennis, (2) threatening strike re- placement Tim Revels, (3) vandalizing vehicles owned by Revels, and (4) vandalizing an automobile owned by nonstriking employee Milbourne. With respect to the vandalism allegations, the evidence does not establish that Hemmian was responsible. He denied damaging any of the vehicles. There was no eye- witness. Testimony of Milbourne and Revels did not fur- nish a reasonable basis for either honest implication of Hemmian or rejection of his denial. First, in the case of Milbourne, during the earlier stages of the strike, he re- turned home from work to find four holes in the wind- shield of his car. The only evidence linking Hemmian with the incident was a neighbor's report that Hemmian and another individual, identified only as a man having a beard, were standing in front of Milbourne's house that same day.32 Milbourne's house actually was divided into separate apartments, one of which was occupied by Diana Jones. Diana Jones was a nonstriking employee who also was a member of the negotiating committee. She is Hemmian's sister. Not only was it customary for Hemmian to be in the immediate area,33 but he testified credibly that he lived only 2 or 3 blocks away. Hemmian testified that he had reason to be in the area of Mel- bourne's apartment regularly, and denied ever vandaliz- ing his car or knowing who did. Both Hemmian and Collins denied that they had ever ridden in the same car together. In this respect, I believed Hemmian' s denial and conclude that he did not vandalize Milbourne's car. Accordingly, this incident would not justify a refusal to reinstate Hemmian. Hemmian was also implicated in strike misconduct by Tim Revels, a strike replacement. The latter was sched- uled to begin work on Tuesday, 6 August. In statements given to Respondent, Revels avers that over the prior weekend, on two occasions, striker Anthony Jenkins threatened to damage Revels' car. Revels, who lived down the street from Curtis Milbourne, averred that on Wednesday, 7 August, he learned of the damage to Mil- bourne's car. Accordingly, Revels checked his own vehi- cles only to find holes in the side of his car and a hole in the windshield of his van. In his statements, Revels ac- knowledged that he did not know who damaged his ve- hicles. Despite the threats attributed to Jenkins, Hem- mian apparently was implicated because Milbourne lived nearby, because the damage to Milbourne's car was simi- lar to that done to his own, and because Marla Nunn, a neighbor, identified Hemmian as being in the area that 32 Contrary to a statement appearing in Respondent's brief, the record does not reflect that Melbourne "was told that Hemmian and Jennis Col- lins were responsible for the damage " 33 Milbourne apparently assumed that Jennis Collins was the individual identified as being with Hemmian in the area that morning He acknowl- edged that he never confronted either Milbourne or Collins concerning the incident, but assumed that Collins was the man with the beard be- cause he had see Collins in a car riding with Hemmian at some time during the course of the strike Milbourne also suspected Collins, be- cause, after the incident, Collins, who, like himself, was a member of the American Legion, ceased attending meetings of that organization 221 same day. Interestingly enough, Roberts avers that Jen- kins was terminated, at least in part, because of his re- sponsibility for damage to Revels' vehicles. Jenkins was never identified as present in the area with Hemmian that day. In any event, even assuming that Respondent held an honest belief that Hemmian was responsible for the damage to Revels' vehicles-which it did not-it is con- cluded that he was not involved in Revels misfortune and this event would not furnish legitimacy to Respond- ent's action in terminating Hemmian.34 Revels also testified to a confrontation with- Hemmian on the picket line. He claimed that during the first week of his employment, 35 as he was leaving work Hemmian jumped out holding his hands in front of Revels' car, and stating that they were on private property but if Revels would go to the state highway, Hemmian would whip his a- Hemmian climbed the hill to the guardrail, but as he did so the state police appeared , so Hemmian left.36 Hemmian admitted to observing Revels cross the picket line, but denied that he ever jumped in front of Revels' car or that he ever said anything to Revels other than to call him a "scab." He denied threatening or invit- ing Revels to fight. I believed Revel and credit him over Hemmian, and the latter's sister, Diana Jones.37 The final ground offered in support of Hemmian's ter- mination derived from his fight with nonstriking employ- ee Darryle Dennis. Grace Dennis, Darryle's mother, started working for the Respondent as a strike replace- ment on 20 August. Previously, she had a conversation with Hemmian, who urged her to dissuade Darryle from crossing the picket line, implying that if Darryle did so, she would find him in an alley with a piece of pipe run- ning up the side of his head Later, according to Grace Dennis, she received an anonymous phone call stating that if she did not talk to Darryle she would be dragging him from an alley. Dennis, who had known Hemmian as a neighbor for a long time, testified that the voice on the telephone sounded like Hemmian. 34 As I read the Respondent's posthearing brief, no argument is made to support Robert's effort to link Hemmian with the damage to Revels' vehicle 35 His testimony states that it was during the first week of the strike This could not have been the case More reliable is Revels' affidavit, given to the Company's attorney, which indicates that he started work on 7 August See R Exh 13(a) 36 Revels did not list this incident in the written statements he gave in August 1985 This might well be explained by the possibility that the confrontation occurred after he gave those affidavits The incident was mentioned in an affidavit given the Board, which was referred to during cross-examination of Revels 3Y Revels identified Diana Jones as present on the picket line at the time of that incident Jones testified that there was never a time in her presence when Hemmian jumped in front of Revels' car, nor did she ever "hear" Hemmian threaten Revels She also denied ever observing Hem- mian encourage Revels to fight If Jones was present that day, and in a position to observe her brother during the entire incident, her testimony would corroborate her brother's denials At the same time, however, Revels impressed me as an entirely credible witness, and I do not believe that he concocted this elaborate story Moreover, the incident described by Revels, to a significant degree, corresponds with propensities evident in Hemmian's admission that prior to an altercation with Darryle Dennis, he left the picket line, ran up the hill, sat on the guardrail, and ultimately became engaged in a fist fight with Dennis on the shoulder of the state highway 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Darryle Dennis was a student at the University of Maryland, Eastern Shore. He had a history of summer employment with the Respondent dating back to 1982. During the first week of the strike, he did not report to work, but because he needed the money he decided to cross the picket line. Dennis confirmed that his mother had passed Hemmian's warnings on to him. Dennis testi- fied that about 4 or 5 days after his return he was late leaving work, and as he passed through the picket line, Hemmian hollered that he had something for Dennis and to meet him up on the state highway. Dennis responded that he had to go that way anyway. By the time the car in which Dennis was a passenger reached the state high- way, Hemmian had already climbed the hill and was seated on the guardrail. According to Dennis, Hemmian approached the car and swung at Dennis before he he had a chance to get out. When he did so, he and Hem- mian grabbed and started hitting each other. The fight was stopped by a number of pickets and the police.38 On the basis of his accounting of the incident, bolstered by Grace Dennis' reports of Hemmian's alleged threats it is concluded that Respondent, through Roberts, had a rea- sonable basis for belief that Hemmian engaged in dis- qualifying misconduct in this connection.39 Hemmian is 5 feet 4 inches tall and weighs 130 pounds. Dennis is 6 foot 3 inches tall. Nonetheless Hem- mian's account of the incident acknowledges that he left the picket line, climbed the hill,40 and waited for Dennis on the state highway. According to Hemmian, he sat on the guardrail waiting 2 or 3 minutes for the Dennis car to clear the traffic and enter the highway. The Dennis car passed, but then pulled onto the berm. Dennis got out and approached Hemmian. Hemmian stood up and threw his glasses in the weeds. According to Hemmian, Dennis attempted the first blow, which he blocked. The pickets then approached and broke up the fight, dust as the police arrived. It is undisputed that both were charged criminally with assault, battery, and obstruction of a public high- way. They were subsequently released on their own re- cognizance, and told to stay away from each other The charges against Hemmian were never brought to pros- ecution. Dennis entered a plea of nola contendre to a charge of disturbing the peace and, without a finding of guilt, was placed on unsupervised probation. He was found not guilty of assault and battery. Hemmian denied the threatening comments attributed to him by Grace Dennis, denying that he even spoke with her concerning Darryle Dennis' employment during the period prior to the fight. He also denied ever tele- 31 Counsel for the General Counsel asserts that the testimony of Dar- ryle Dennis contained "omissions, inconsistencies and contradictions " From my view, the omissions were as to nonessentials The contradic- tions and inconsistencies are in the mind of counsel , and in no way sur- face from an objective reading of the testimony Dennis was neither an unresponsive nor evasive witness ss The General Counsel would disagree, citing the fact that Roberts did not interview the dnver of the vehicle in which Dennis was the pas- senger I know of no policy requiring an employer to obtain corrobative proof as a precondition for asserting its right to terminate a striker on a good-faith belief 40 The fight took place on the berm of a public highway at a site rising approximately 50 feet above the picket line phoning Grace Dennis or making a telephone threat to her family. As should be obvious, Hemmian's testimony in materi- al areas disagree with that of Dennis in terms of the ini- tial provocation and who struck the first blow. The bal- ance of the conflict merely entails incidentals. As for the former, the scenario depicted by Dennis is to the effect that Hemmian was on the driver's side of the road leav- ing the premises, while Dennis was on the passenger side of the car in which he was a passenger. As the car passed, Hemmian and another picket were hollering "scab." Hemmian denied that he said anything else. With this, according to Hemmian, Dennis told Hemmian "to meet him up on the highway." Hemmian admits to then running up the hill and waiting on the guardrail 41 All witnesses agree that when Dennis' car crossed the picket line, the pickets and strikers in the area were all yelling scab as the car passed. There is no evidence that Dennis and Hemmian previously had any differences, and it is fair to assume that their altercation stemmed di- rectly from Dennis' role as a striker. Yet, Hemmian char- acterized his own conduct at that time as no different from that of the other strikers. If that were so, why would Dennis have singled him out?42 I am convinced that in this respect, Hemmian was not entirely forthright. Upon consideration of all the facts, the demeanor of the witnesses and the probabilities, I am convinced that Hemmian provoked the fight with Dennis. His agressive predelictions, as evidenced by confrontations with Dennis and Revels, were not curbed by his smallness of stature. Accordingly, it is concluded that the fight evolved from provocative remarks made by Hemmian to the mother of Dennis which were again reenforced by Hemmian's action on the picket line immediately prior to the fight.43 Based on his threats of bodily harm and his role in provoking the fight, together with its potential for widespread disruption-taking place at a location so near a picket line-Hemmian engaged in striker miscon- duct rendering it legitimate for Respondent to discharge him. Accordingly, the 8(a)(3) and (1) allegation in this respect shall be dismissed.44 4i The General Counsel called striker Percy Watts, who was unaware of who invited who up the hill or who struck the first blow Josephine Bryant, another striker, testified that it was Hemmian who hollered out, "alright, I'll meet you on the hill " She was not sure just what Dennis might have said to provoke such a remark , but she surmised that Dennis must have said something about "meet me up the hill " She testified that it was Dennis that struck the first blow 42 Counsel for the General Counsel points to the fact that Respondent did not call the driver of the Dennis vehicle, A Hughes, and urges an inference that testimony by the latter would have supported Hemmian The suggested approach is too mechanistic, I prefer to resolve the con- flict in light of probabilities suggested by all the evidence, while noting that the record does not disclose that this individual was available to the Respondent 4a The General Counsel called a number of witnesses to corroborate Hemmian Thus, all saliant aspects of Hemmian 's account were confirmed by strikers Lawrence Bennett, Rickey Gailliard, Diana Jones, and Eliza- beth Marshall In rejecting the testimony of Hemmian and the strikers, I note that probabilities, not numbers, are at the cornerstone of my analy- sis 44 The claim of disparate treatment founded on Respondent 's failure to discharge Dennis is nonmeritonous Simply put, Dennis did not provoke the fight, and to this extent their conduct was dissimilar CHESAPEAKE PLYWOOD (d) Jennis Collins Collins was discharged in violation of Section 8(a)(3) and (1) of the Act. Respondent had no honest belief that he engaged in misconduct. Also persuasive is the proof that Collins did not do so. Collins was discharged on the basis of his alleged in- volvement in vandalizing the vehicles owned by Revels and Milbourne. The Respondent had no eyewitness to the vandalism. Milbourne, the sole source of information to the Respondent concerning damage to his vehicle, merely reported his own speculation that Hemmian and Collins were responsible. That Milbourne's opinion was unsupported by direct proof should have been clear to Respondent. Thus, Milbourne's report concerning the in- cident was limited to the following: The reason I know that Hemmian and Collins were involved is because my neighbor Marla (I don't know her last name). told me that she saw these men . . in the front of my house on the day the damage was done. She didn't see them do the damage. I have not confronted these men about the damage to my car. Respondent concedes that, prior to the discharge, it made no effort to seek out Marla (Nunn). This, despite the fact that on the face of the Milbourne affidavit the identification was based on assumption, rather than ob- servation, and made even less reliable by its dependency upon rank hearsay. Considering the frailties of these alle- gations, it is difficult to imagine that Milbourne was not questioned further Had it done so, Respondent would have learned that Marla Nunn was not even in a position to identify Jennis Collins. She merely told Milbourne that Hemmian was accompanied by "the gentleman with the beard." Milbourne merely deduced that Collins was in the company of Hemmian because he had once seen the two of them riding together, and because Collins after this incident terminated his practice of attending American Legion meetings.45 Had Respondent inquired of Marla Nunn, it would have learned that she had never before even seen Collins. Respondent's evidence is even thinner in the Revels' case. There was no evidence identifying Collins, or anyone resembling him, in the vicinity of vehicles owned by Revels. In this regard Revels merely states: On August 7 my car and van were damaged I have no actual knowledge as to who did the damage to my vehicles. However, Marla Nunn lives on Clark Avenue in Pocomoke told Curtis Milbourne that Donald Hemmian was near the Milbourne's house at the time of the property damage. Milbourne's car was damaged on the same day as mine. Milbourne 45 It is doubtful that the American Legion could have contributed to Melbourne's initial assumption that Collins was involved The damage was done on 7 August His affidavit naming Collins was dated 14 August Thus, Melbourne had arrived at his conclusion only a week after his car was vandalized, a time interval insufficient to support any notion that Collins abandoned his interest in the American Legion See R Exh 12(b) 223 lives two blocks from me. Hemmian is a striking employee. Respondent has failed to suggest that it acted against Collins on any other factual grounds. In the circum- stances, to conclude that the action against Collins was supported by an honest belief would merely reenforce a wrecklessness on the part of managers at the expense of more worthy statutory considerations. The obligation that employers act in good faith when disciplining strik- ers is not designed to impose a rigid burden. The Board will not intervene solely because the underlying investi- gation did not meet optimum standards of thoroughness, nor will management's judgment be scrutinized closely At the same time, the onus placed on employers by Burnup & Sims, supra, was designed to accommodate management's right to maintain discipline, while preserv- ing the Section 7 right to strike Consistent with this bal- ance, precedent fails to acknowledge that naked accusa- tion suffices to fulfill the employer' s initial evidentiary burden. General Telephone Co., 251 NLRB 737, 739 (1980); NLRB v. Moore Business Forms, 574 F.2d 835, 842-843 (5th Cir. 1978). Respondent's case against Col- lins goes no further. Accordingly, Respondent did not discharge Collins, while possessed of an honest belief that he offended the property of anyone. In any event, even were I to conclude otherwise, since I credit Collins' denial that he did so,46 Collins, as a striker, who was the subject of an unconditional offer to return to work, was unlawfully discharged on 16 January 1986 in violation of Section 8(a)(1) and (3) of the Act. (e) Anthony Jenkins The discharge of Jenkins was predicated on allegations by strike replacement Revels. According to Revels, on the weekend prior to his reporting for work, during the first week of August, he was at a local playground. Striker Jenkins was also present. After a basketball game, as Revels was leaving, Jenkins pointed him out saying "there goes one of them that's suppose to start work Monday." Jenkins allegedly added if Revels did so ". . they were going to f-k [Revels] up." In a further incident involving Jenkins, Revels testified that at a car wash the next day Jenkins approached him as he was wiping off his car and stated "yeah, she clean . . . you go over there to work . . I'm going to throw some stones on it and f-k it up." Revels replied, "suit yourself, the car is fully insured." Milbourne and Revels rode to work together. Revels went to work on the first Monday in August as sched- uled. As indicated, during that week his car and the windshield of his van were damaged by either stones or a pellet gun. This was discovered the same day as Mil- bourne discovered the damage to his car. Based on Revels' account, Respondent possessed prima facie evidence of Jenkins' alleged threat of harm to his person and property. In this light, Respondent could rightfully infer, based on the timing of the damage to 46 I also credit Collins' testimony that he never at any time rode in a vehicle with Hemmian 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Revels' vehicles, and the nature of the threat made by Jenkins, that he was responsible for the vandalism. Hence, Respondent had a good-faith belief that Jenkins engaged in disqualifying misconduct. The foregoing was denied by Jenkins. He claims that he first learned that Revels was working for Chesapeake during the strike sometime after 12 September when Revels approached him at the pool hall accusing the strikers generally of putting holes in his car and van be- cause he went to work.47 According to Jenkins, when he indicated that he would do nothing like that because he had a car of his own Revels allegedly said "I don't think you did it anyway," indicating that he believed that it was Hemmian. Jenkins related that he had a good relationship with Revels before the strike and had never had a problem with him. Jenkins added that he has had a fine relationship with Revels since the strike ended. Here again, I find Revels the more credible witness. He impressed me more favorably on the basis of demean- or, and his account seemed more plausible. I find it diffi- cult to believe that Revels would have approached Jen- kins in a pool hall about a month after he had given in- formation to the Respondent accusing Jenkins of threat- ening remarks and, based on them, implicating Jenkins, at least circumstantially, in the damage to his car More- over, the record fails to suggest any basis for suspecting that Revels might have concocted the accusations out of any grudge or ill will towards Jenkins As I credit Revels over Jenkins, it is concluded that the General Counsel has not established by a preponderance of the evidence that the misconduct did not occur. According- ly, the 8(a)(3) and ( 1) allegations in this case shall be dis- missed.4 8 (f) Ronald Hockett According to the Respondent, the several acts of mis- conduct leading to the termination of Hockett occurred the very first few hours of the strike. Two incidents were involved, the first being an alleged threat to em- ployee Herbert Mossett, and the second involved rock throwing in the environs of the picket line. It will be recalled that the strike began at midnight on 23 July. Mossett testified that after attending the union meeting on 22 July he decided against supporting the strike. Mossett was scheduled to commence his next shift at 11:10 p.m on 22 July. He arrived at the plant that evening, well before the start of his shift, at approximate- ly 10 p.m. He parked his car in the management parking lot. Hockett's shift was from 3.30 to 11:30 p.m. Mossett avers that Hockett, who was then working, approached him in the parking lot and inquired whether he was re- turning to work. Mossett ignored Hockett and rolled up 47 Jenkins denied ever seeing Revels at the basketball court This de- spite the fact that both Revels and Jenkins testified that they both visit the basketball court during the summer 48 Although Revels was not recalled by the Respondent to refute the pool hall statements, in this instance, the judgment not to do so by Re- spondent's attorneys does not create a negative implication that overrides my judgment that Jenkins was not telling the truth Moreover, the fact that Revels' preheating statements were not verbatim replications of, or as complete as his testimony , does not offend the substantive consistency of his account on the critical issues, nor shake my confidence in his ve- racity his window. Hockett commented: "You don't plan on working do you?" Mossett still did not reply, whereupon Hockett allegedly stated, "I feel sorry for your damned house." At that juncture, Mossett left the plant premises and went home.49 Mossett's account provided prima facie grounds for terminating Hockett. Hockett's remark was a clear threat to damage Mossett's home. Contrary to the General Counsel, I fail to see how the relatively greater size and weight of Mossett could have any relevance to the possi- bility that such a threat would have been carried out. Hocket admits that he was walking around outside the plant during his shift that evening, but claims that later his foreman told him to remain inside because the Com- pany was concerned about sabotage. He denied that he was outside the plant after 5 p in He denied seeing Mos- sett at the plant, communicating with him, or ever threatening him in any way. I believed Mossett, who im- pressed me as entirely trustworthy. I cannot accept that the incident was a product of imagination As the Gener- al Counsel has failed to establish by credible proof that the threat was not made, the tendency to intimidate a nonstriker inherent therein alone warrants dismissal of the 8(a)(3) and (1) allegations in Hockett's case. However, there is also the rock-throwing incident. Salem Equipment Company was a contractor retained by Respondent to install equipment on its premises. It is un- disputed that between 6:30 and 7 a.m., on 23 July, three vehicles operated by employees of Salem crossed the picket line. After an attempt to block the lead vehicle, a rock was thrown from the picket line breaking the window of that truck. Raymond Brown, an employee of Salem, who was in the middle vehicle testified that the man who threw the rock was caucasian, 6 foot, slender, with shiny brown hair and a mustache. Brown testified that as he went through the picket line, and he observed the same individual through his outside rearview mirror. Brown, and a striker who ultimately crossed the picket line, Robert Allen, offered the only testimony specifying Hockett as the person responsible. Reports containing general descriptions of the individual involved were also obtained from two other employees of Salem. The General Counsel's attack on the evidence devel- oped through Brown and other representatives of Salem Equipment is well taken. Thus, neither Brown nor his coworkers who reported the incident on 23 July were ever asked to return to the picket line to identify the striker.50 Failure to take this step is difficult to under- 49 The incident, and Mossett's reaction, were reported to management See R Exhs 15(a) and (b) 10 In his statement provided to the Company on 23 July Brown identi- fied the striker involved as "a tall, slender white male " There was no mention of a mustache See R Exh 3(a) On 23 July, Respondent also secured statements from Salem employees Darwin Lamb and Richard I Smith Neither testified and apparently , unlike Brown , neither subse- quently identified the rock thrower with any specificity Thus, Darwin Lamb, averred in his statement that he did not observe who threw the rock, but appears to surmise that the culprit was an individual whom he did not describe as wearing a mustache See R Exh 3(b) Smith, who claimed to have observed the rock thrower, merely, identified him as "5 foot, 10 inches to 5 foot 11 inches in height, about 165 to 170 pounds in weight, white, male with dark hair " Here again, there was no mention of Continued CHESAPEAKE PLYWOOD stand in light of the generalized description they afford- ed, and the fact that the Salem employees crossed the picket line everyday for 3 or 4 weeks thereafter. In fact, as I understand Brown's testimony, he was not offered the opportunity to provide a specific identification until February 1987, a year and a half later. This of course was some 13 months after the discharge of Hockett.5 i Thus, it is clear that Respondent effected the discharge without benefit of Brown's identification of Hockett. Nonstriker Allen was the only remaining source of evidence. He testified that he observed the trucks cross the morning of 23 July. He saw a rock thrown at the first vehicle, but could not identify who threw the rock other than to say that Hockett was in the vicinity of "where the rock hit." On the other hand, Allen testified that he personally observed Hockett throw a rock at the second truck.52 However, Allen was confused as to when he initially reported this to the Respondent. On ex- amination by the General Counsel, Allen claimed that it was about the time he supplied Respondent with his affi- davit dated 31 January 1986. It is considered entirely likely that this was the case, and I find that Respondent had no access to Allen's account prior to the discharge. Roberts could not recall whether he discussed the matter with Allen "prior to the end of the strike." From the foregoing, it is apparent that at the time of the discharge the only evidence available to Respondent were statements from the Salem employees. Not one identified Hockett and, indeed, the generalized descrip- tion they provided would not confer fair basis for charg- ing Hockett, who is only 5 feet 8 inches tall and was mustached at the time. Accordingly, the issue of whether Hockett actually threw the rocks need not be reached, as it is concluded that Respondent acted without evidence reasonably lead- ing to the conclusion that Hockett was the guilty party. Nevertheless, the threat to Mossett was an unmitigated attempt to intimidate a coworker, and itself constituted serious misconduct furnishing an independent justifica- tion for terminating Hockett. Accordingly, the 8(a)(3) and (1) allegation in his case shall be dismissed. a mustache See R Exh 3(c) It is not without significance, that aside from race, one of the most distinct features on the individual depicted on G C Exhs 17(a) and (b) is his mustache Roberts testified that based on the description accorded by Brown , Smith, and Williams he concluded that Hockett threw the rocks In view of the lack of symmetry between their observations and Hockett's physical characteristics, it is difficult to believe that Roberts could have arrived at this conclusion and I discredit his assertion that he did 51 Respondent requested that Brown make the identification in Febru- ary 1987 from photographs forwarded to Brown by mail In these photo- graphs Hockett is the only caucasian pictured, whose features are reason- ably distinguishable See G C Exh 17(a) Thus, the General Counsel ob- serves, convincingly , that Brown's selection was channelled through a process that was uncomplicated by alternatives Absent such options, and the broader sampling they would present, I agree that Brown's designa- tion was thoroughly unreliable 52 In the light of Allen's specific testimony in this respect, I find it dif- ficult to understand the General Counsel's comment that Allen "was unable to offer a reliable account to Respondent of who threw the rock(s) " 225 3. The poststrike refusals to bargain a. The withdrawal of recognition Following termination of the strike, a meeting was scheduled by the parties for 17 March 1986. By telegram dated 13 March 1986, the Respondent informed the Union as follows: Chesapeake Plywood has objectively based good faith doubt that IWA Local 5-346 continues to have support of the majority of employees. An NLRB petition will be filed. Meeting scheduled for 3/17/86, therefore inappropriate to hold and is can- celled. s a That very day, a petition bearing signatures of 140 em- ployees had been presented to the Respondent. That doc- ument advised that those signing no longer wished union representation.54 At the time, the unit consisted of 250 employees. Of these, 195 were actively employed, 62 were on the preferential rehire list, and 1, Jennis Collins, heretofore has been found to have been unlawfully dis- charged. Respondent does not dispute that this action was tanta- mount to a withdrawal of recognition, effectively termi- nating the bargaining relationship. The General Counsel contends that Respondent thereby violated Section 8(a)(5) and (1) of the Act. In the circumstances present- ed, the General Counsel's initial burden is aided by the presumption outlined by the Board as follows: It is well settled that a certified union, upon expi- ration of the first year following its certification [or voluntary recognition], enjoys a rebuttable pre- sumption that its majority representative status con- tinues This presumption is designed to promote sta- bility in collective-bargaining relationships, without impairing the free choice of employees. According- ly, once the presumption is shown to be operative, a prima facie case is established that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be re- butted if the employer affirmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed majority representative status; or (2) that the employer's refusal was predi- cated on a good-faith and reasonably grounded doubt of the union's continued majority status.55 However, the defense's proven loss of majority will not necessarily end the inquiry For, such evidence may only be asserted in good faith, free of employer instigation and influence. Furthermore, the expressed doubt of ma- Jonty will not be entertained in a context in which em- ployee defections are attributable to unremedied unfair labor practices. See, e.g., Southern Wipers Co., 192 NLRB 816 (1971). ss See G C Exh 9(d) On 24 March 1986, Respondent filed an election petition in Case 5-RM-930 See G C Exh 9(f) 54 See G C Exh 19 55 Terrell Machine Co, 173 NLRB 1480, 1481 (1969) 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel does not argue that Respondent was in any way a participant in initiation , preparation, or distribution of the petition. Instead, the General Counsel argues that the petition was tainted and did not reflect the freely expressed will of the majority of the employ- ees in the unit because it was developed in the context of Respondent's unfair labor practices. In this connection, it is noted that prior to the March 1986 withdrawal of rec- ognition the Employer violated Section 8(a)(5) and (1) of the Act by insisting to impasse on a nonmandatory sub- ject of collective bargaining, a violation that caused and prolonged the strike commencing on 23 July Respond- ent also has been deemed to have violated Section 8(a)(3) and (1) of the Act by failing, on termination of the strike, to reinstate strikers within 5 days of their unconditional offer to return to work. Finally, having found that em- ployee Jennis Collins did not engage in disqualifying mis- conduct during the strike, Respondent, in discharging him, further violated Section 8(a)(3) and (1) of the Act. Despite these illegalities , the General Counsel is not fa- vored by a per se rule. Guerdon Industries, 218 NLRB 658, 661 (1975). The 8(a)(5) violation will only be found upon a showing "that the Union's decline in support was attributable to the employer's misconduct . . . [a]bsent such evidence, the employer prevails." Hotel & Restau- rant Employees Local 19 v. NLRB, 785 F.2d 797, 799 (9th Cir. 1986), enfg. 273 NLRB 1001 (1984). In this regard, the General Counsel must establish that "the unfair labor practices committed . . were . . . `sufficiently serious . .. that they possessed an inherent tendency to [con- tribute] to the union's loss of majority status."' BASF Wyandotte Corp, 276 NLRB 1576, 1577 (1985). In other words, the unlawful conduct must be of such a character "as to affect the Union's status, cause employee dissaffec- tion, or improperly affect the bargaining relationship itself." See Guerdon Industries, supra, 661. Consistent with the foregoing, the record confirms that the Employer's bargaining strategy set in motion a chain of events whose ultimate consequence was loss of majority. The unlawful insistence on EEO changes con- tributed to strike action that continued while the Compa- ny hired replacements. When the strike ended, the re- placements were unlawfully retained to the prejudice of unfair labor practice strikers. At that juncture, the re- placements held jobs of discriminatees and hence were ineligible to express themselves on the issue of union rep- resentation. See, e.g., Jacques Syl Midwear, 247 NLRB 1525, 1533 (1980). Their unlawful retention was not rem- edied prior to the withdrawal of recognition. In these circumstances, aside from the question of whether weight ought be given to the preference of replacements, the cessation of the strike created an aura of competition for jobs that, quite forseeably, would stimulate a pro- nounced antiunion reaction on the part of the replace- ments. Accordingly, the Respondent, having unlawfully provoked the strike and then having failed to remedy the discrimination against the participants created the scenar- io jeopardizing the Union's retention of majority status within the grouping composed of strikers and replace- ments. In these circumstances , the nexus between the loss of majority and unlawful conduct is sufficient to pre- clude legitimate , termination of the bargaining relation- ship Having done so, Respondent violated Section 8(a)(5) and (1) of the Act. b. The failure to provide information The complaint further alleged that Respondent violat- ed Section 8(a)(5) and (1) of the Act by refusing since on or about 5 April 1986 to provide the Union with infor- mation necessary and relevant to the Union's perform- ance of its representative function. The facts demonstrate that on 3 April 1986 the Union requested (1) the names, addresses, phone numbers, rates of pay, and seniority of all employees then working at the plant; (2) the names, addresses, and seniority dates of employees not working, but retaining recall rights, and (3) the method used by the Employer to select employ- ees for recall. The Respondent concedes that it declined to provide the requested information. Under established precedent, employers are obliged to provide requested information that is relevant to the Union's discharge of its statutory duties and responsibilities. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). "Where the re- quested information concerns wage rates, job descrip- tions, and other information, pertaining to employees within the bargaining unit , this information is presump- tively relevant." Pfizer, Inc., 268 NLRB 916, 918 (1984). Moreover, during the period after a strike, where re- placements have been retained over strikers, the informa- tion sought here would be relevant to assessment of em- ployment rights within the unit, and to the question of whether rights of strikers are being properly recognized. See Crouse-Irving Memorial Hospital, 271 NLRB 1044, 1046-1047 (1984). Georgetown Holiday Inn, 235 NLRB 485, 486 (1978). On the foregoing, it is concluded that Respondent violated Section 8(q)(5) and (1) of the Act by refusing, on request, to provide the Union the afore- said information relevant and necessary to the perform- ance of duties and responsibilities as exclusive representa- tive in the appropriate collective-bargaining unit. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 Respondent violated Section 8(a)(3) and (1) of the Act by discharging Jennis Collins on 15 January 1986 under conditions discouraging union membership. 4. Respondent violated Section 8(a)(3) and (1) of the Act beginning in November 1985 by refusing to reinstate within 5 days of their individual or group offer to return to work all such employees who participated in the strike. 5. The following employees of the Respondent consti- tute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Respondent at its plywood plant lo- cated at Pocomoke City, Maryland, including stock rustlers; but excluding all office clerical employees, CHESAPEAKE PLYWOOD 227 temporary employees, watchmen, guards, leadmen and supervisors as defined in the Act. 6. Respondent violated Section 8(a)(5) and (1) of the Act by insisting to impasse on a nonmandatory subject of collective bargaining. 7. The strike, which began on 23 July 1985, was an unfair labor practice strike from its inception, and contin- ued as such at all material times thereafter until its termi- nation on or about 29 December 1985 8. Respondent violated Section 8(a)(5) and (1) of the Act by on 13 March 1986 withdrawing recognition from the Union, and by thereafter refusing to bargain in good faith with the Union 9. Respondent violated Section 8(a)(1) of the Act by threatening to remove former strikers from a preferential rehire list unless they replied to Respondent's inquiries. 10, Respondent violated Section 8(a)(3) and (1) of the Act by removing Eric Allbritton, Robert Davis, Joseph Greene, John Lutz, John Palen, Edward Sanchez, Myron Schmidt, and Alice Tarr from a preferential hiring list because of their failure to respond to Respond- ent's inquiries under conditions limiting their statutory right to reinstatment. 11, Respondent violated Section 8(a)(5) and (1) of the Act in April 1986, and thereafter, by refusing, on re- quest, to provide the Union with information relevant and necessary to the performance of its obligation as ex- clusive bargaining representative in the appropriate unit. 12. The unfair labor practices set forth above are unfair labor practices having an effect on commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Having concluded that Respondent discriminatorily discharged Jennis Collins, it shall be recommended that he be offered immediate reinstatement to his former posi- tion, or a substantial equivalent position, discharging if necessary, anyone hired to replace him since his termina- tion, and that he be made whole for any loss of earnings and other benefits by reason of the discrimination against him. Backpay shall be computed on a quarterly basis from the date of discharge to the date of a bona fide offer of reinstatement, less net interim earnings, as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in accord with New Horizons for the Retarded, 283 NLRB 1173 (1987), subject to the pro- viso that interest accruing prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) Having found that the strike was an unfair labor prac- tice strike and that the Respondent, within 5 days of the unconditional offer to return to work on behalf of the strikers, had denied them reinstatement, it shall be rec- ommended that all such strikers, as identified in a subse- quent compliance proceeding, be offered immediate rein- statement to their former, or substantially equivalent po- sitions, discharging if necessary, all replacements hired since 23 July 1985, and be made whole for loss of earn- ings and benefits attributable to the discriminatory refusal to reinstate. Backpay under the terms of this order shall be computed on a quarterly basis, from a date 5 days after the unconditional offer to return to work to the date of a bona fide offer of reinstatement , less net interim earnings, as prescribed in F. W. Woolworth Co., supra, plus interest computed in accord with New Horizons for the Retarded, supra,56 and for that accruing prior to 1 January 1987, as computed in Florida Steel Corp., supra. To redress the violations of Section 8(a)(5), it shall be recommended that Respondent, on request, recognize and bargain with the Union in good faith and provide the Union with relevant information.57 Counsel for the General Counsel urges that the remedy include a visitatorial clause, authorizing the Board to engage in discovery if necessary to monitor compliance with any remedial Order issued here. That request argues broadly that such a provision be incorpo- rated routinely as part of the Board's standard remedial formula in all cases. However, the Board has rejected that position, taking the view that the relief in question is only appropriate where warranted by the circumstances of the particular case. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). Having studied the 14-page motion made by the General Counsel, it is clear that there is nei- ther showing, nor argument as to how the specific con- duct under scrutiny in this proceeding warrants such relief. Based on the cited authority, the request is denied. [Recommended Order omitted from publication.] ss On or about 5 June 1986, the Respondent unlawfully removed the names of eight strikers from its preferential hiring list Special provision of a remedy in their cases would be cumulative since, as unfair labor practice strikers, their participation in the relief under the terms recom- mended above would fully redress the subsequent violations SS The Charging Party contends that an offer to return to work on 18 September 1985 was sufficient "to trigger the striking employees ' right to backpay " The complaint does not allege a violation on that basis, the issue was not litigated, and the proof does not disclose that an uncondi- tional offer to return on behalf of the strikers was perfected at that time