Stephen-Son-Yost Steel

STEPHENSON-YOST STEEL Lapham-Hickey Steel Corporation d/b/a Stephen- son-Yost Steel and United Steelworkers of America, District 34. Case 17-CA-13243 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 30, 1988, Administrative Law Judge Frederick C. Herzog issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions, as modified below, and to adopt the recommended Order. We agree with the judge that the Respondent violated Section 8(a)(5) and (1) by bargaining in bad faith and by unilaterally implementing new terms and conditions of employment after only the second bargaining meeting between the parties on September 29, 1986.1 As the judge found, the par- ties exchanged written bargaining proposals at their initial negotiating meeting on September 19. The Union's proposal sought substantially increased wages, changing and raising one job classification, liberalized leave, and health care benefits. The Re- spondent's proposal was in the form of a complete contract package and provided, inter alia, for re- ductions in pay rates for leadmen, new hires, number of job classifications (which would affect wages), and elimination of cost-of-living adjust- ments. During the morning session of their next and final meeting on September 29, the parties agreed to a number of compromise positions.2 Then, during the lunchbreak, Union Bargaining Repre- sentative Cooper presented the Respondent with a wage proposal calling for a 44-cent-an-hour in- crease in each of the two job classes to match those enjoyed by the Respondent's employees at its St. Louis facility.3 The Respondent's chief negotia- ' All dates refer to calendar year 1986 2 The parties reached agreement on some economic issues, including leadman pay, retention of the existing dental and (certain aspects of the) medical insurance plans, and also agreed to forgo contract language changes proposed involving noneconomic matters, t e , recognition, union security, and checkoff provisions The Respondent at that point had made no responses with respect to other noneconomic grievance issues involving lack of heat, broken windows, and slow payment of insurance claims 3 We find, contrary to the judge, that it was the Union's (rather than the Respondent's) bargaining objective to obtain wages equivalent to 395 tor, Hobson, responded, according to Hobson's own testimony, that the parties were too far apart, but that Cooper insisted that the St. Louis wage scale was what was needed to "make it fly." Hobson further testified that Cooper thereupon of- fered to discuss what other economic benefits the Union would be willing to give up in order to get the St. Louis wage rate. The Respondent then de- clined not only the Union's wage proposal, but also the offer to explore movement on other economic items in return for the proposed increase, as sug- gested by the Union. After the lunchbreak Hobson presented the Union with what he called a final offer. The Union again offered to discuss tradeoffs, saying that the membership would reject the final offer, but the Respondent reiterated that its offer was final. The union membership rejected the offer that same day (September 29), and on September 30 the Respondent posted a bulletin setting forth the economic conditions of employment (contained in its final offer), which would become effective the following day for the reason that "there is no signed contract as of Midnight 9-30-86." Thereaf- ter, the Union's efforts to reach the Respondent to arrange further negotiating meetings were unsuc- cessful. We agree with the judge's conclusion that no genuine impasse was reached by the parties on Sep- tember 29. Only two bargaining sessions were held, and at the morning meeting of the second session there was substantial movement from the positions taken at the first meeting 10 days earlier. Indeed, agreement was reached on leadman pay, union se- curity, and checkoff, to cite a few examples, on which the parties previously had been at odds. Thus, the parties' ability to compromise and reach agreement on numerous, previously disputed issues that morning demonstrates that neither party could have reasonably concluded at that juncture that further bargaining was not possible. The Respond- ent, however, seized on the Union's presenting a new proposal for a 44-cent-an-hour wage increase during the luncheon recess to justify the tendering of its "final offer" after the recess. In this regard, Hobson testified that he considered the union wage proposal to represent the Union's "bottom line" and that, consequently, it was evident that the par- ties "were too far apart" for further compromise of their respective positions. When pressed by the judge to explain why the Union's proposal prompt- ed the Respondent's "final offer," Hobson asserted those that the Respondent was paying to employees at its St Louis facili- ty However, notwithstanding the judge's reliance on his erroneous read- ing of the record, we find, as set forth below, ample support for his ulti- mate conclusion that there was no genuine impasse reached between the parties on September 29 294 NLRB No. 27 396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he took Cooper (who he considered to be truthful) at his word when, in making the proposal, Cooper stated that the St. Louis rate was what it was going to take to "make it [an agreement] fly." We are not persuaded by this explanation be- cause the evidence shows that Cooper's proposal was neither final nor written in stone; and, under all the circumstances, Hobson should have recog- nized that to be the case.4 For, although the Union made plain that parity with the St. Louis wage rate was a prime objective, it also advised the Respond- ent that it was willing to discuss giving up other economic items to compensate for that increase. The Respondent, however, refused even to explore the Union's offer to discuss potential tradeoffs for increased wages.5 Instead, the Respondent returned to the bargaining table after the break and, without further bargaining, presented a written document containing the terms of its "final offer"-an offer which it had every reason to believe, in light of the Union's bargaining position until then, would be re- jected by the unit employees.6 In these circumstances, we find the Respondent's precipitous presentation of a "final offer," instead of exploring the Union's offer to discuss what it was willing to trade for the wage increase, demon- strates its true bargaining objective of declaring an impasse for the purpose of implementing its own terms and conditions of employment rather than reaching agreement with the Union.7 4 See Printing & Graphic Communications Local 13 v NLRB, 598 F 2d 267, 273 (D C Cir 1979), in which the court stated that "[p]arties com- monly change their position during the course of bargaining notwith- standing the adamance with which they refuse to accede at the outset " See also Teamsters Local 1750 v NLRB, 788 F 2d 27 fn 11 (D C Cir 1986) Here, as shown infra, there is no evidentiary basis for even infer- ring that Cooper took an adamant bargaining position with respect to the wage increase proposal In fact, the contrary conclusion is warranted, given Cooper's repeated assertions that the Union was willing to discuss tradeoffs 5 See NLRB v Eltec Corp, 870 F 2d 1112, 1117 fn 2 (6th Cir 1989), in which the court noted that Respondent's duty to bargain on this issue is not negated by the pos- sibility or even the substantial probability that the Union would not agree to respondent's proposed economic concessions The purpose of the duty to bargain is to give the collective bargaining process a chance to operate regardless of the possibility of success To hold otherwise would allow employers and unions to skip the bargaining stage altogether based upon their perceptions regarding the low probability of reaching an agreement Here, the Respondent has similarly shut the door on the Union's offer to explore tradeoffs based on its asserted perception that no acceptable agreement could be reached , rather than give the bargaining process a chance to work 6 In fact, upon receiving the offer, Cooper told Hobson that the offer would be voted down if all Hobson wanted was an answer to his stated "take it or leave it" ultimatum Later that same day, the unit employees unanimously rejected the offer 7 The language, "There is no signed contract as of Midnight 9 -30-86," on the face of the Respondent's September 30 posting of its "`Economic' conditions of employment" implies misleadingly that new conditions are necessary because of the expiring contract In fact, economic contractual terms generally remain in force after the contract's expiration We find that this misleading, publicly stated reason for implementing the final offer lends further support to our conclusion that the Respondent de- Accordingly, we find that the Respondent, in violation of Section 8(a)(5) and (1), engaged in bad- faith bargaining and unilaterally implemented its contract offer without a genuine impasse having been reached. We also find, as did the judge, that the employees subsequently struck to protest the foregoing unlawful conduct, and thereafter made an unconditional offer to return to work, but were refused reinstatement by the Respondent in viola- tion of Section 8(a)(3) and (1) of the Act.8 We ac- cordingly adopt the judge's conclusions of law and his recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Lapham- Hickey Steel Corporation, d/b/a Stephenson-Yost Steel, North Kansas City, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Glared a bargaining impasse simply to work its will as soon as possible and not because it fully explored the grounds for agreement and reason- ably concluded that none was possible Member Cracraft does not find the bulletin misleading and, according- ly, does not rely on it in finding that no impasse occurred s The judge correctly determined that backpay for the unremstated strikers should be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950) He also correctly determined that the unit em- ployees should be made whole for any losses they may have suffered by virtue of the unlawful changes in their wages, hours, and working condi- tions He did not, however, indicate the backpay formula to be applied to that portion of the make-whole remedy The backpay owed the employ- ees as a consequence of these unilateral changes shall, therefore, be com- puted in the manner prescribed in Ogle Protection Service, 183 NLRB 682, 683 (1970) Stephen E. Wamser, Esq., for the General Counsel. William J. Cooney, Esq. (McBride, Baker & Coles), of Chicago, Illinois, for the Respondent. DECISION STATEMENT OF THE CASE FREDERICK C. HERZOG, Administrative Law Judge. This case was heard by me in Kansas City, Kansas, on January 11 and 12, 1988, and is based on a charge filed by United Steelworkers of America, District 34 (the Union) on January 7, 1987,1 alleging generally that Lapham-Hickey Steel Corporation d/b/a Stephenson- Yost Steel (Respondent) committed certain violations of i All dates hereafter shall refer to the calendar year 1986 unless speci- fied otherwise STEPHENSON-YOST STEEL Section 8(a)(1),2 (3), and (5)3 and Section 8(d)4 of the National Labor Relations Act, U.S.C § 151 et seq. (the Act). On November 5, 1987, the Regional Director for Region 17 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing alleging violations of Sections 8(a)(1), (3), and (5) and 8(d) of the Act. Respondent thereafter filed a timely answer to the allegations contained within the complaint, denying all wrongdoing. All parties appeared at the hearing and were given full opportunity to participate, to introduce relevant evi- dence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Based on the record, my consid- eration of the briefs filed by the General Counsel and counsel for Respondent, and my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION The complaint alleges, the answer admits, and I find that Respondent is a corporation with an office and place of business in North Kansas City, Missouri, where at all times material it has been engaged in the business of war- ehousing, processing, and distributing carbon steel; that during the 12-month period ending September 30, 1987, in the course and conduct of its business operations, it purchased and received at its facility mentioned above products, goods, and materials valued in excess of $50,000 directly from points outside the State of Missou- ri; that during the same 12-month period it derived gross revenues from such business operations in excess of $500,000. Accordingly, I find and conclude that Respondent is now, and at all times material has been, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 Sec 8(a)(1) of the Act provides that It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 Sec 7 provides that Employees shall have the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities Sec 8(a)(5) of the Act provides that It shall be an unfair labor practice for an employer- (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) * Sec 8(d) of the Act provides that (d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the repre- sentative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and condi- tions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a pro- posal or require the making of a concession H. THE LABOR ORGANIZATION 397 The complaint alleges, the answer admits, and I find that the Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. General Background and Labor Relations History As shown above, Respondent operates as a processor and seller of carbon steel goods from its facility in North Kansas City, Missouri. That facility had, previous to its acquisition by Respondent , been used for a similar pur- pose by another company which employed workers in a unit described as follows: All production and maintenance employees em- ployed at (the facility mentioned above), including truck drivers whose headquarters are at said plant, excluding, however, office and clerical employees, supervisors, watchmen, office janitors and porters. Respondent obtained the facility on February 29, 1984, by purchasing the assets and goodwill of the previous company, Stephenson-Yost Steel. Among such assets was that company's "right, title and interest in and to" the then current union contract. The contract referred to was the latest in a series of approximately seven succes- sive collective-bargaining agreements which had been negotiated on behalf of the employees at the facility by the Union, since it obtained representation rights in about 1963. Respondent expressly agreed to "assume and per- form all duties and obligations to be performed by [the previous company] during the life of the contract." Evi- dently it did so, for there has been nothing raised indicat- ing to the contrary, such as difficulties with other unions which represent employees in other units or the occur- rence of (a) strike(s) at the facility. Indeed, it is not claimed that Respondent has ever previously been the subject of unfair labor practice charges or complaints. Though of no relevance to the issue of Respondent's culpability here, it seems beneficially instructive concern- ing the frame of mind of the Union's negotiators, and the affected employees, to note here that negotiations be- tween the Union and Stephenson-Yost Steel, which led to the collective-bargaining agreement preceding the ne- gotiations which form the core of this case, did not prove useful from the Union's or employees' standpoint. In fact, they led to an agreement that provided for a wage freeze and an actual reduction of benefits. In late July the Union timely notified Respondent of its desire to reopen the collective-bargaining agreement for new negotiations when it expired on September 30. Respondent acceded to the Union's request and entered into negotiations. However, these negotiations did not lead to agreement. Instead, after only two negotiating sessions, they led to Respondent's declaration of an im- passe, a long hiatus in bargaining, a strike by the nine 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees5 in the unit, and disputes about the strikers' reinstatement rights. B. Contentions of the Parties and Issues The General Counsel claims that Respondent bar- gained in bad faith , without real - intent to seek agree- ment, that no impasse was reached by the negotiators, that an ensuing (albeit long-delayed) strike was caused or prolonged by-unfair labor practices of Respondent; and that Respondent has failed and refused to meet its obliga- tions to reinstate employees. Respondent claims to have engaged in lawful , if hard, bargaining, untainted by unfair labor practices, resulting in a quick impasse after the second bargaining session. Instead, so Respondent asserts, it is the Union that has frustrated the bargaining process, most notably by its en- gagement in concerted bargaining with other unions, lo- cated in other cities and States, which have had labor ne- gotiations with Respondent during the timeframe in- volved here . Finally, so Respondent claims, the strike was not caused or prolonged by unfair labor practices, and the Union's alleged demand for reinstatement on behalf of employees was invalid. Accordingly, I turn now to an examination of the events in question. C. Events at the Bargaining Table Each of the two prestrike bargaining sessions was held at a motel, evidently engaged by one of the parties, not far from Respondent's facility in North Kansas City, Missouri. Present and representing the Union at each of the prestrike sessions were Ernie Cooper (a staff representa- tive of the Union), Harold Cecil (a longtime employee of Stephenson-Yost Steel and committeeman for the Union), and Doug Falconer (another longtime employee of Ste- phenson-Yost Steel and committeeman for the Union). Representing Respondent at each of the sessions were Jeffrey M. Hobson (corporate operations manager for Respondent) and Richard A. Kill (division manager of the facility in North Kansas City). Cooper and Hobson acted as chief negotiators and spokesmen for their re- spective sides.6 Each of the two bargaining sessions preceding the strike began around 9 :30 a.m. and lasted until around 2 p.m., excluding lunch. 5 The parties stipulated that during the period from May 1, 1987, through July 9, 1987, the unit's employee/members consisted of, and only of, the following persons Fred Aldrich Cal Monroe Harold Cecil Ike Pinaire Richard Circle Brad Strange Doug Falconer Kenny Hawkins John Hays- The five persons named all testified at the trial No other persons tes- tified 1. First session-September 19 Opening pleasantries aside, Hobson told the Union's negotiators that he preferred that negotiations be con- ducted in an orderly manner, free of shouting. He went on to say that when the parties reached a point where a final offer would be appropriate, the Respondent would make one, that it would be described as such, and that no further offers would be made concerning the subject matter. The parties exchanged written proposals during this first session. The Union's called for an additional floating holiday, a "substantial" wage increase, changing the classification of a job known as "sideloader" so as to raise it, adding funeral leave provisions, increased cost-of-living adjust- ment by adjustment of the formula used in implementing it, additional vacation for employees with 20 years of service, reinstatement of a dental plan, addition of eye care, adding health insurance for retirees with 30 years' service, and discussion of complaints' concerning alleged slow payment of insurance claims, lack of heat in the building, and lack of safety equipment, including gloves. The parties seem not to dispute the fact that this meet- ing was conducted in evident good spirits, devoid of ob- vious rancor or display of negative emotions. Instead, the general tone seems to have been that it went about as well as each had hoped for, i.e., from the Union's stand- point, although the Union wanted Respondent to be more generous and forthcoming, it was not truly disap- pointed in the way the first meeting progressed, given the realities of such negotiations; from Respondent's standpoint, Respondent had the opportunity to set the tone it wished to convey during negotiations. For exam- ple, on hearing Cooper's description of some 2 dozen broken windows at the facility, Hobson blandly replied that he would look into the matter and get back to Cooper about it. A similar exchange took place regard- ing a complaint concerning the alleged late or slow pay- ment of insurance claims. Thus, the Union complained of unfairness and Respondent responded equably, with evi- dent reasonableness, but firmly. Respondent's proposal differed somewhat from the Union's, not only in content, but also in form It was pre- sented as a complete proposal. It called for changing the Union's recognition clause from past contracts so as to delete truckdrivers from the unit description; it also called for changes in the union-security and checkoff provisions made in past contracts. Respondent also pro- posed deletion of provision for promoting unit employees to positions outside the unit, changes in the hours of work to eliminate a floating holiday, and deletion of pro- visions for weekend holidays and leadman pay; it pro- posed a reduction in the number of job classifications (which would affect wages), pay rate for new hires and elimination of pay for jury duty and funeral leave; it pro- posed to eliminate the cost-of-living adjustment, the job evaluation plan, and the provision for severance pay; it proposed to reduce the vacation benefit and change the language in the old grievance-arbitration clause. 7 Initially brought up as grievances STEPHENSON-YOST STEEL The parties took a break to refresh themselves after this exchange of proposals. When they returned, Cooper reviewed Respondent's proposals aloud, and characterized them as "drastic take- aways." On inquiring why Respondent wanted to take the truckdrivers out of the unit, Hobson replied that Re- spondent needed flexibility to call in an outside trucking firm when its drivers were working the warehouse. Cooper said he had no problem with Respondent solving that problem, and that Respondent had been doing it since 1963; he suggested that Respondent go on calling outside help as needed, but that it leave its own truck- drivers in the unit. Hobson promised to reconsider and get back to his on this. A similar exchange, with a like result, followed con- cerning the proposed changes in union security, check- off, evaluation of temporary supervisors, weekend holi- days, and leadmen. Both sides agreed to table further dis- cussion of the issues of proposed cuts in the fringe bene- fit package such as major medical, dental , and short-term disability plans, floating holidays, severance pay, reduc- tion in vacation schedules, increased hours to accrue va- cation leave, and cost-of-living adjustment, since these were mutually viewed as economic issues.8 Cooper called for the provisions for job classes and wage scales, jury pay, and funeral leave to be placed back in the contract . He also called for Respondent to increase the number of days employees would have to file grievances from 2 to 5 days, in view of the fact that truckdrivers might be away from the facility for that long or longer. Similarly, he requested an increase in Re- spondent's proposed time limit for requests for arbitra- tion. The parties agreed to correct a typographical error concerning the expiration date for the proposed collec- tive-bargaining contract. They also agreed on the design of the medical plan. 2. Second session-September 29 The second and final meeting preceding the strike began with an explanation that Hobson's daughter was ill, and that this would require Hobson to leave early in the afternoon. Respondent gave the Union its revised proposals, both economic and noneconomic . Respondent dropped its proposed changes in the old contact 's provision for rec- ognition, union security, checkoff, funeral leave (as well as including the Union's proposal regarding step-parents and guardian). Respondent also agreed to the Union's proposal for increasing the number of days to file for a grievance or arbitration. Respondent proposed to restore the provisions for promoting unit employees to positions outside the unit. Respondent continued to propose the deletion of a floating holiday, but it restored the old lan- guage covering treatment of weekend holidays and lead- man pay. Respondent remained firm on its new provi- sions for wages, except for an agreed-on change in a clerical job classification . Respondent proposed two a The parties had evidently reached agreement to put off discussion of such matters until resolution of noneconomic issues, as parties to negotia- tions are wont to do. 399 wage classes with six job classifications. The pay rate was to be $3 less per hour for new hires , and provision was made for hourly wages of $10. 15 and $10.79 for cur- rent employees. Respondent indicated it would be agree- able to a job evaluation proposal by the Union , so long as it was kept to "something simple." On Cooper's pro- test that he did not understand what was wanted, Hobson told him to put something in writing and get it to him, which Cooper agreed to do. Respondent's pro- posal for insurance (medical and dental) and vacation was "as proposed." Respondent proposed to include some provision for severance pay, though at a reduced rate from the expiring contract. Respondent proposed that all this be put in a contract for 3 years' duration. In the ensuing discussion agreements were reached on the medical insurance plan's design, and on the dental plan already in effect, but not on the comprehensive major medical plan, with its increased deductible amounts, or the short-term disability plan. No agreement was reached upon vacations, wages for current employ- ees, elimination of cost-of-living adjustments, severance pay, the checker job classification , or even on the $3-per- hour wage reduction for new hires (since Respondent re- fused to agree on this unless it was part of an en_ tir`e package agreement). The Union presented its revised proposal to Respond- ent during the luncheon break which followed . It pro- vided for revising the provisions for floating holiday, severance pay provisions, and a capped cost-of-living at 15 cents per hour per year. It provided for an additional week of vacation after 20 years and wage increases of 44 cents for each of the two job classes, with 5-percent in- creases thereafter for the second and third years of the contract. Discussion of the proposed wage increase led to the possibility being broached by Cooper of his under- taking to give up other items in order to obtain the wage increase sought." After lunch Hobson presented what he called a final offer. It proposed a freeze on wages and vacation bene- fits, the elimination of cost -of-living adjustments and sev- erance pay, wages for new hires being reduced by $3 per hour, and medical and dental insurance "as proposed." Cooper responded by claiming that this represented concessionaire bargaining, and asked where Respondent put the money it saved, since he had been under the im- pression that Respondent sought only to keep its eco- nomic package the same, rather than to save money. Not only did Respondent not deny that Cooper had made this offer, it was Hobson who initially testified about this point, and who later but- tressed it and amplified under cross-examination that the Union had of- fered to give up some other items if "they could get the St . Louis maybe .44 or .45 cent package." Hobson was asked: By Mr. Wamser: Q. So I guess from that, did he, in fact , tell you he would give up on other items if he could get that? A. Yes, he did. Yes, he did. Thus, I deem it admitted that the Union offered during the second and final meeting to "move" on "other items" in order to accommodate Re- spondent's needs in the economic area . Respondent's unwillingness to even explore Cooper's offer in order to learn whether or not he was sin- cere, or what benefits might lay therein for Respondent, bespeaks a desire to avoid and evade, rather than to reach, agreement on a new collective- bargaining agreement with the Union. 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hobson told him it was Respondent's final offer, and the Union could take it or leave it Cooper told him that it would be voted down if all he wanted was an answer, but reminded that there were items still to be discussed, such as job evaluation and safety items. Hobson replied merely that was Respondent's economic package. At that, the meeting broke up. Based on this record, there is no evidence ,that Respondent ever "got back" to the Union with responses to the several items it had promised it would. Cooper, Cecil, and Falconer went from there to the fa- cility and conducted a vote among the unit's members on Respondent's final offer. It was unanimously rejected. The three negotiators then went to Kill's office and used the phone there to phone the Federal mediator's office. Both Cooper and Kill spoke to the mediator. At the end of the conversations (evidently they were carried out with a certain amount of privacy being afforded whoever was speaking to the mediator), Kill told Cooper that he was unable to do anything. 3. The implementation of the final offer On September 30, Respondent posted a bulletin at the facility. It stated that, effective the following day, the "Economic conditions of employment" would be as set forth in the bulletin The body of the bulletin, following the letterhead and salutation, read as follows. 1. Insurance as proposed, Medical and Dental. 2. Vacation-All current employees vacation re- mains the same as old contract. New Hires-as of 10-1-86. 1 week after 1 year 2 weeks after 2 years 3 weeks after 10 years 3. COLA dropped from contract. 4. Wage Scale: Job Class 1-$10.50 per hour Order Filler Machine Operator Truck Driver . Raymond Operator Job Class 2-$11.145 per hour Maintenance Men Panograph Operator All new' hires as of 10-1-86 $3.00 per hour less, with $.25 per hour increase every 90 days till maxi- mum dollar rate m job class is reached Language as proposed in last offer to apply. There is no signed contract as of Midnight 9-30-86. Stephenson-Yost Steel 4. The failure of efforts to bargain further As you know the employees have turned down the Company's offer. The employees are going to continue to work, thus allowing us time to set up meeting dates to resolve the issues. The Union is willing to meet with you at any time. I feel that with the assistance of Federal Medi- ator Gene Bralley the problems could be quickly re- solved. Awaiting your reply, I am Sincerely, On October 9 Kill responded, as follows: Dear Mr. Cooper, As we stated in our last meeting we have made you our final offer. We do not have anything fur- ther to discuss. Sincerely, Cooper testified that he thereafter tried unsuccessfully several times to reach Kill or Hobson by phone, leaving messages for them to call him, in an effort to schedule further negotiations. He claimed to have received no re- sponse and, as a result, to have thereafter confined his further efforts to contact the Respondent to the interven- tion of the Federal mediator. Hobson testified that he re- ceived no messages or other attempts to communicate from Cooper or any other union representative. Kill simply testified that he received nothing from the Union. I resolve this credibility conflict in favor of the version of events supplied by Cooper, on the basis of his superior demeanor in testifying. Despite the breakdown in negotiations, Respondent's employees continued to work. From all that appears, they have since worked, when not engaged in a strike, subject to the terms of the bulletin posted on October 1. D. The Union's Presence at the Bargaining in Chicago On May 12 and 13, 1987, Respondent was engaged in collective-bargaining negotiations at Chicago, Illinois, with a union representing its employees in a unit located in Chicago. Cooper and Cecil appeared at these negotiations and observed what happened, as did a representative of an- other union which represented some of Respondent's em- ployees in a unit located in St. Paul, Minnesota. At the May 13, 1987 meeting, the representative of the Chicago union made a proposal to Respondent that somehow in- cluded common duration dates and wage proposals for all three units of employees. No claim is made that either Cooper or Cecil partici- pated in the Chicago negotiations in any fashion other than as set forth above. E. The Strike On May 16, 1987, having returned from Chicago, Cooper conducted a meeting of employees from four separate units at a hall in North Kansas City. He dis- cussed with them their various options, Le, he told them On October 1 Cooper wrote to Kill. He stated, in per- they could continue trying to meet with the Company in tinent part: order to resolve the contract differences, and he told STEPHENSON-YOST STEEL them that they could strike to try to force the Company to the bargaining table. No action was attempted at this meeting. After the meeting, Cooper met privately with Falcon- er and Cecil. They engaged in further discussion of their options, with the thought in mind that Falconer and Cecil would relay any news to the employees at Re- spondent's facility, and then decide what they wanted to do. According to Falconer he complained at this meeting that "the working conditions had gotten severely out of hand . . . and we was shifting men around from job to job . . . before the job was even completed . . . and one man was doing the work of two .. . ." He recalled that Cooper then told him and Cecil that they would have to take a vote of the men to decide what to do 1. Timing On May 18, 1987, Cooper called Cecil and learned that the employees had voted unanimously to strike. In Cecil's words, they had "had enough stalling," were "fed up," and wanted to strike This date coincides with the onset of a strike by the Respondent's employees in the Chicago unit, and is only a day or two preceding the onset of a strike by the Re- spondent's St. Paul employees. The Union's witnesses claimed that they had not made the decision to strike in unison with these other unions, but acknowledged that they were well aware of the strike plans of the other unions. The nine employees began to strike on May 20, 1987, around 6:30 a in, and continued to do so until October 1, 1987. On both May 20 and 21, 1987, Respondent notified each employee, in writing, that (paraphrasing), if he re- mained on strike as of May 27, 1987, his status would be that of an economic striker, subject to replacement, but not fired. Each employee was also notified that, until re- placed, he was welcome to return to his job, and that, even thereafter, he retained certain job rights. 2. Evidence of the strike's purpose The decision to strike was made by the employees at a meeting outside the facility, in its parking lot. The meet- ing was conducted by Cecil and Falconer after work on May 18, around 4:30 p.m. It was attended by all nine em- ployees in the unit. Cecil credibly testified that he told the men that, "[i]t's come time for us to make a decision on what we're going to do now. You know, we can either continue to work like we have been or we can go on strike and try to get this settled." He asked for suggestions or com- ments, but received none. He then asked all those in favor of continuing to work to raise their hands; no one did so. Then he asked those in favor of going out on strike to raise their hands; everyone present raised a hand. As noted above, he later that evening reported the results to Cooper by phone. Falconer credibly testified that he told the others at the meeting referred to above that "we was here to take a strike vote to see if we could resolve this contract dis- pute that we was going under," and that a discussion of 401 the options ensued. Falconer testified that "there was several items brought up with one man trying to work two walk-in cranes and one man trying to work the large 20-foot shear, five-eighths shear by himself." He recalled the affected employees, Richard Circle and John Hays, bringing up these complaints. He went on to detail that he then said, "I want a show of hands of those that want to stay and work under these conditions," and no one raised a hand But, when he then asked if they wanted to strike, "I got 100 percent raise of hands for the strike." No other person testified about the events surrounding the decision to engage in a strike. Cooper credibly testified that he supplied the men with picket signs shortly before the picketing began, on both may 19 and 20. One such sign, so he also testified, measured approximately 28 or 30 inches by 12 or 14 inches, and read as follows- UNFAIR LABOR DISPUTE STRIKE UNITED STEEL WORKERS OF AMERICA AFL-CIO Another picket sign supplied by Cooper left out the first three lines of the first sign, and replaced them with the word, "ON." Cooper credibly testified that such, or similar, signs were carried by the men, or displayed on or about their vehicles, and even tacked on poles, throughout the course of the strike. His testimony on this point was cor- roborated by Cecil and Falconer. It was contradicted, however, by that of Hobson and Kill. I resolve the credibility dispute in favor of Cooper, on the basis of his superior demeanor while testifying. Cooper testified that he conducted another meeting of the employees in the facility's parking lot on May 27, 1987 Present were eight employees, plus the Union's subdirector. The subdirector asked the employees if they wanted to continue to strike, or to return to work. Cooper testified that, "There was a vote ... until they could get the . . . until they could get it resolved or at least get it back to the bargaining table, they then voted, eight all, to stay out." F. The Resumption of Bargaining On July 9, 1987, the parties met once again. Cooper testified that he applied for reinstatement unconditionally on behalf of the employees. He stated that, following dis- cussion of check-lists of economics and noneconomics, he said, "Well, there is some other issues that we ought to discuss, and that is the issues about the strikers." He stated that he went on to tell Respondent that he could have the picket signs down on the following day, and place the employees back to work at 8 a in. He recalled that Hobson merely responded with a question about whether he had heard anything from the National Labor Relations Board, and that he said he had not, but that he 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would put the employees back to work on July 10. He recounted that he told Hobson that he still regarded the replacements as unfair and "scabs," but "that they were not permanent replacements because they did not adver- tise in the paper nor at any one of their interviews when they hired the employees, did they ever convey to them that they was permanent replacements." Kill responded that they had intended them to be After fruitless discussion, Hobson stated that they would have to wait and get the ruling of the NLRB. At that, Cooper asked if that meant that Respondent intended not to reinstate the employees on strike, and Hobson stated that they would just have to wait on the ruling. By letter of July 16, 1987, Hobson advised Cooper fur- ther that Respondent's position was that "those people in the plant" are permanent replacements. He also reiterat- ed the Respondent's position on wages, i.e., a 3-year freeze. On July 22, 1987, Cooper wrote Hobson, among other things, that the Union had offered on July 9 to have the employees report back to work on July 10, and had been met by the Respondent's statement of a desire to wait for the ruling of the NLRB. No response correcting any al- leged misrepresentations contained in Cooper's letter was ever made by Respondent. No progress has been made in negotiations in the inter- im since. G. Analysis and Conclusions 1. The violation of Section 8(a)(5) a. The failure to bargain in good faith The obligation to bargain collectively, though never satisfied by application of rote or formula, is defined in Section 8(d), set forth above. Yet, difficulties are routine- ly encountered in the application of that definition to cases of the sort-detailed above. For we do not deal here with the sorts of conduct which are deemed so patently contrary to a genuine desire to reach agreement that the fact of their occur- rence will sustain a finding of a per se violation. Actions that fly in the face of the 8(d) requirements have long been considered to be per se violations of the Act's bar- gaining duty, regardless of any other good-faith activi- ties. For example, if an employer were, during negotia- tions, to make unilateral increases in wages, changes in a merit wage policy, and sick leave policy, all of which are deemed to be "mandatory" subjects for bargaining, it will be held guilty of a per se violation of Section 8(a)(5). When faced with such a situation, the Supreme Court said in NLRB v. Katz, 369 U S. 736, 743 (1962): [A] refusal to negotiate in fact as to any subject which is within Section 8(d) and about which the union seeks to negotiate, violates Section 8(a)(5), though the employer has every desire to reach agreement with the union upon an overall collective bargaining agreement and earnestly and in all good faith bargains to that end. Moreover, obvious per se violations aside, the courts consider an employer's entire course of conduct, or the totality of circumstances, in determining good- or bad- faith bargaining. The appropriate standard is whether the circumstances clearly indicate "a desire not to reach an agreement with the union." NLRB v. Reed & Prince Mfg., 205 F.2d 131 (1st Cir. 1953). The Board, too, has followed the "totality of circumstances" standard in these types of cases. In Atlanta Hilton & Tower, 271 NLRB 1600 (1984), it stated: [T]he obligation does not compel either party to agree to a proposal or require the making of a con- cession. Both the employer and the union have a duty to negotiate with a "sincere purpose to find a basis of agreement," but "the Board cannot force an employer to make a `concession' on any specific issue or to adopt any particular position." The em- ployer is, nonetheless, "obliged to make some rea- sonable effort in some direction to compose his dif- ferences with the union, if § 8(a)(5) is to be read as imposing any substantial obligation at all." It is necessary to scrutinize an employer's overall conduct to determine whether it has bargained in good faith. "From the context on an employer's total conduct, it must be decided whether the em- ployer is lawfully engaging in hard bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of arriving at any agreement." A party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree. Although an adamant insistence on a bargaining position is not of itself a refusal to bargain in good faith . . . other conduct has been held to be indica- tive of a lack of good faith Such conduct includes delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargain- ing, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, with- drawal of already agreed-upon provisions, and arbi- trary scheduling of meetings Although the Board has recently reaffirmed its stand- ards for the review of contract proposals in Reichhold Chemicals, 288 NLRB 69 (1988), it has also announced its determination to "continue to examine proposals when appropriate and consider whether, on the basis of objective factors, a demand is clearly designed to frus- trate agreement on a collective-bargaining contract." Id. Here, there are a number of factors that are consistent with Respondent's argument that it engaged in good- faith efforts to reach agreement: (1) Respondents' unblemished record with the Board is indicative that, at least, Respondent has no proclivity to violate the Act. (2) Respondent has not even been charged with, much less proven guilty of, independent violations of the Act, which might be indicative of animus. (3) Respondent entered into negotiations with the Union with seeming willingness. STEPHENSON-YOST STEEL (4) Respondent conducted itself in the negotiation ses- sions without evident anger or other display of emotion indicative of either resentment at being required to par- ticipate, or thinly veiled hostility toward the entire proc- ess. (5) Respondent both received and gave proposals to the Union. (6) Respondent demonstrated in a number of instances the ability and willingness to change or modify its posi- tion. There are, however, some other factors which are in- dicative that a contrary desire was harbored by Re- spondent when it entered into negotiations: (1) Respondent was not truly the same employer, but only the purchaser of the employer, which had a history of approximately seven successive preceding efforts to compose its differences with its employees (and is there- fore not entitled to the benefit of the favorable inference arising from such a lengthy history of good-faith dealings with the Union). (2) Respondent's substantive proposals, initially calling, inter alia, for changing the recognition clause long used, the union-security and checkoff provisions, the elimina- tion of fairness procedures for promotion, elimination of the provisions for cost-of-living adjustments, job evalua- tions, and severance pay, plus changes in the old griev- ance-arbitration clause, were scarcely likely to make its proposal to actually lower or freeze wages for a long period of time palatable to its employees; that Respond- ent ultimately called for a freeze on wages and vacation benefits, the elimination of cost-of-living adjustments and severance pay, plus a lowered wage package for new hires, and a medical and dental insurance package al- ready known to be unacceptable to the Union can easily be viewed as efforts by it to bring back from the Union concessions which the Union had won in bargaining of days long past. (3) Respondent's unwillingness to continue negotia- tions past what was only the second negotiation session, seems indicative of an unseemly haste to arrive at an "impasse" in negotiations. (4) Respondent's unwillingness to even discuss the Union's offer to make further concessions in order to meet Respondent's stated objectives in negotiations. (5) Respondent's failure to ever "get back" to the Union as promised regarding matters which had been previously raised in negotiations, and as to which there was never either agreement or impasse reached (e.g, job evaluations or disability plan). (6) Respondent's failure to afford the Union a fair period of time in which to review Respondent's compre- hensive proposal Thus, using the standard announced by both the Board and the courts, i.e., "the totality of circumstances," the picture is scarcely crystal clear that either of the compet- ing points of view is totally "on the side of the angels " But, I find it compelling, dispositively so, that Re- spondent's haste to reach the state of impasse apparently caused it to brush right past a number of possibly reason- able bases for prolonging negotiations past the second meeting. 403 For example, no one can say what effect, if any, the unfortunate illness of the daughter of Respondent's nego- tiator may have had on the course of negotiations that day. Further, while, on the one hand it is indicative of good faith on the part of Respondent that it modified its posi- tion on no less that 11 separate items during the course of the second negotiating session, it seems suspiciously contrived and preconceived "that the very fact that such modifications were leading to tentative agreements and accords would lead to no renewal of hope" by Respond- ent that further negotiations concerning more important or fundamental items, such as "economics ," might also yield to the process of compromise. After all, the whole negotiation process had scarcely begun, yet progress was already being made, and continued to be made, right up to the end of the second session . I do not understand what made Respondent feel that continuing the process, however briefly, would prove so futile that it was not worth even exploring. My suspicion is that Respondent actually feared that the negotiation process might work, and felt obliged to bring it to a premature end. There had been but two meetings before Respondent declared an impasse, and announced the implementation of the "final offer." The parties were still in the process of getting to know one another and feeling each other out, given the fact that Respondent had taken over the position of the prior employer. Moreover, there was no showing, or even an attempt to show, that Respondent was involved in some emergency situation , making the need for concessions and implementation more urgent; certainly there was nothing in this record to explain why one or two more sessions of negotiations would have proven harmful to Respondent's interests. None of this is to say that there is any magic formula to determine the proper number of negotiating sessions an employer must engage in before it may logically and safely declare that further negotiations are deemed futile, and that the parties at an impasse . It is recognized that employers have a legitimate . interest in getting on with business and, at some point, they must be free to face re- ality But how is a trier of fact to view an employer that hears, but apparently ignores, a union announce , during only its second negotiation session , that it is willing to meet the employer's previously announced main bargain- ing objective, i.e., a comparative wage scale with a facili- ty in St. Louis? As set out above, there is no dispute that this occurred; Hobson himself testified that Cooper made this concession to him at the second bargaining session. Yet, by all that appears, there was absolutely no further discussion of the matter. My conclusion and finding from the totality of circum- stances here, where the "last circumstance" is the em- ployer's "brush off' of the union's professed willingness to meet its most important negotiating objective, is that the employer was not truly interested in agreement, but only in impasse , in order to privilege its imposition of re- vised provisions of wages, hours, and working condi- tions. 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This, of course, quite obviously fails to meet the stand- ard set forth in Section 8(d) of the Act and, for that reason, is violative of Section 8(a)(5) and (1) of the Act. I so find and conclude.' o b. The claimed impasse in negotiations Since the Board's decision in Taft Broadcasting Co., 163 NLRB 475 (1967), certain "first principles" have been repeatedly drawn therefrom, as follows: An employer violated his duty to bargain if, when negotiations 'are sought or are in progress, he unilaterally institutes changes in existing terms and conditions of employment. On the other hand, after bargaining to an impasse , that is, after good-faith negotiations have exhausted the prospects of con- cluding in agreement, an employer does not violate the Act by making unilateral changes that are rea- sonably comprehended within his pre-impasse pro- posals: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an im- passe in bargaining existed. Here, in applying these principles , I have no alterna- tive but to find and conclude, as I do, that no genuine impasse ever existed in this case . For, as I have already set out; the claimed impasse was contrived, rather than real. It seems a reasonable conclusion that it was deemed a desirable end by Respondent because, as stated by the Supreme Court in Taft, while an employer is normally not free ' to unilaterally change previously negotiated terms and conditions-of employment , it becomes so if it can be said that good-faith negotiations have led to a genuine impasse. Thus, such an employer is free to impose his own terms and conditions of employment, an obvious, and tempting, economic benefit to an employer. Having found that no legally cognizable impasse ever existed, I-am necessarily led to also find and conclude, as I do, that the repeated refusals, or failures to respond af- firmatively to the Union 's demands (in person, by letter, or relayed through the Federal mediator), as well as the implementation of the Respondent's "final offer," were impermissible . Further, I find that Respondent's imple- io I note here that I do not agree with the argument of Respondent that the evidence is sufficient to demonstrate that the Union engaged in "concerted bargaining" with the local unions from Chicago or St Paul On the other hand, I would not conclude that it was mere coincidence which led to the presence of the Union at the negotiations in Chicago, or which prompted the timing of the strike But Respondent has not pointed out, nor could it, any authority holding that a Union must behave stupid- ly, as if it operates in a vacuum , when it decides about the best time to exert its economic leverage, or that a strike must be caused "purely" by unfair labor practices, in order to retain the Act's protection for strikers who engage in strikes characterized as "unfair labor practice strikes " Accordingly, I find such conduct to have had no legal significance in the outcome of this case mentation of its "final offer" " i constituted unilateral changes in wages, hours, and working conditions which must be rescinded until and unless they have been sub- jected to good-faith bargaining resulting in a valid im- passe. Finally, I find that by each of the above-described actions Respondent has violated Section 8(a)(5) of the Act. I shall provide an appropriate remedy for each such violation. 2. The violation of Section 8(a)(3) a. The nature of the strike The Union conducted several strike votes. The record is uncontradicted that on each such occasion the vote was preceded by a certain amount of discussion among the affected employees, and that on each such occasion the employees, or at least some of them , determined to engage in, or to continue to engage in, strike activity be- cause of a desire to compel Respondent to "return to the bargaining table." For example: (1) Falconer credibly testified that he told the others at a meeting on May 18, 1987 , that, "we was here to take a strike vote to see if we could resolve this contract dis- pute that we was going under," and that a discussion of the options ensued. Falconer testified further that "there was several items brought up with one man trying to work ' two walk-in cranes and one man trying to work the large 20-foot shear, five-eighths shear by himself." He recalled the affected employees, Richard Circle and John Hays, bringing up these complaints He went on to detail that he then said, "I want a show of hands of those that want to stay and work under these conditions," and no one raised a hand. But, when he then asked if they wanted to strike, "I got 100 percent raise of hands for the strike." (2) Cooper credibly testified that on May 27, 1987, the Union's subdirector asked the employees if they wanted to continue to strike, or to return to work . Cooper testi- fied further that, "There was a vote .. . until they could get the . . . until they could get it resolved or at least get it back to the bargaining table, they then voted, eight all, to stay out." Moreover, there was other credible evidence of the intent of employees in engaging the strike . Cooper credi- bly testified that he supplied the men with picket signs shortly before the picketing began , and that many of these signs made prominent reference to an "UNFAIR LABOR DISPUTE." Cooper also credibly testified that such signs were displayed throughout the course of the strike. His corroborated testimony on this point has been found superior to that of contradictory testimony sup- plied by Hobson and Kill. My conclusion from all of this is that the primary focus of the employees ' decision to strike was to protest the failure and refusal of Respondent to bargain further, or in good faith . The evidence also tends to establish that the implementation of the unilateral changes contributed to the failure of the parties to earlier resolve their differ- i i Counsel for the General Counsel has effectively conceded that Re- spondent's implementation did not illegally differ from its previous pro- posals STEPHENSON-YOST STEEL ences that had led to the strike. Since I have found the failure to bargain in good faith, merely engaging in "sur- face bargaining," to have been the very essence of the unfair labor practices committed by Respondent, it nec- essarily follows that I should, as I do, also find and con- clude that the strike was caused and prolonged by unfair labor practices of Respondent, because the evidence re- ferred to above clearly establishes the necessary " causal connection" between the very unfair labor practices I have found to have been committed and the employees' decision to engage in and/or remain on strike. Buffalo Concrete, 276 NLRB 839, 841 (1985), Tufts Bros., 235 NLRB 808, 811 (1978); Typoservice Corp., 203 NLRB 1180 (1973); compare Burlington Homes, 246 NLRB 1029 (1979). I agree with the argument made by counsel for the General Counsel that the fact that the employees delayed going on strike until it would be most likely to have an adverse economic impact on Respondent is scarcely in- dicative that the unfair labor practices of Respondent were not the cause behind the decision to strike. Matlock Truck & Trailer Corp., 217 NLRB 346, 355 (1975). "Timing is significant, but not conclusive in establishing the basis for a strike." Burns Motor Freight, 250 NLRB 276, 277-278 (1980). b. The demand for and the refusal of reinstatement Cooper's verbal requests while meeting with Respond- ent's negotiators on July 9, 1987, together with his letter of July 22, 1987, were, in my opinion, sufficiently clear to convey the then-current desire of employees to return unconditionally to their former positions of employment. Such requests may be ignored by an employer at its own peril, even if they are made collectively for all em- ployees by the union's representative, as they were here. Colonial Haven Nursing Home, 218 NLRB 1007, 1011 (1975). Certainly, such requests are ample to modify the previously stated position that they desired reinstatement only if the permanent replacements were first discharged. Respondent argues in its brief that, "[b]oth sides agreed that the issue [of whether employees were enti- tled to reinstatement] would have to await determination by the NLRB." I cannot agree. For, as set forth above, I have also determined that the striking employees were unfair labor practice strikers, and not economic strikers, as argued by Respondent. Unfair labor practice strikers are entitled to immediate reinstatement on application, without regard for whether or not their positions have been filled by replacements. Stuart Radiator Core Mfg. Co., 173 NLRB 125, 126 (1968). Although I find no am- biguity in the overall words of Cooper, whether in person or in writing, when he requested reinstatement for all employees on July 9, and again on July 22, 1987, even if I were to do so it would not excuse Respondent, for an employer which receives a request for reinstate- ment which it considers to be ambiguous bears the burden of requesting clarification to resolve any doubts about the true nature of the request. Hadden House Food Products, 242 NLRB 1057, 1058 at fn. 6 (1979). It is not claimed that the Respondent ever did so. Accordingly, I find and conclude that Respondent vio- lated Section 8(a)(3) of the Act when it failed and re- 405 fused to return all striking employees to their former po- sitions upon receipt of their unconditional offers to return to work first conveyed by Cooper on July 9, 1987, and repeated thereafter, until12 the employees were actually reinstated on October 1, 1987. I shall pro- vide an appropriate remedy for these violations. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 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. All production and maintenance employees em- ployed by Respondent at its facility located in North Kansas City, Missouri, including truckdrivers whose headquarters are at said plant, excluding, however, office and clerical employees, supervisors, watchmen, office janitors and porters constitute a unit appropriate for col- lective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has been the exclu- sive collective-bargaining representative of all the em- ployees in the unit described above by virtue of Section 9(a) of the Act. 5 By failing and refusing to engage in good-faith ne- gotiations, by engaging in "surface bargaining" without the intent to reach an agreement, by avoiding and evad- ing an agreement, by declaring the existence of an im- passe in negotiations in order to be able to unilaterally implement changes in the wages, hours, and working conditions of employees, by actually implementing the terms and conditions of an outstanding proposal at a time when no genuine impasse existed, and by like and related conduct Respondent has violated Sections 8(a)(5) and (1) and 8(d) of the Act. 6. By failing and refusing to grant timely reinstatement to unfair labor practice strikers on their unconditional re- quest to return to work, Respondent violated Section 8(a)(3) and (1) of the Act. 7. The strike of Respondent's employees which took place between May 20 and October 1, 1987, was an unfair labor practice strike, and the employees who par- ticipated in the strike were unfair labor practice strikers. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. 1E Respondent's argument that it should be excused, at least in part, be- cause two employees were offered job openings at a bargaining session of August 20, 1987, is without merit The offer(s) were clearly part of a contract proposal, a portion of which was "economic package as pro- posed," the old proposal which called for abolition of company-owned trucks and trailers Thus, there was nothing "unconditional" about these "offers", as a result , they were ineffectual to toll backpay Thor Power Tool Co, 148 NLRB 1379, 1390 (1964), and Cooperative Decredito y Ahorro Vegabojena, 261 NLRB 1098, 1100 (1982) 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Having found that Respondent violated Section 8(a)(5) and (1) of the Act by engaging in surface bargaining, by implementing unilateral changes in the wages, hours, and working conditions of its employees at a time when no genuine impasse existed, and by like and related conduct, it shall be required that Respondent, on request, bargain with the Union as the exclusive representative' of the em- ployees in the , appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment; further, it shall be required that, on the Union's re- quest, and consistent with this decision, Respondent re- scind any unilateral changes made effective on and after September 30,. 1986, and, consistent with this decision, continue to give effect to those terms and conditions of employment previously in effect at its facility in North Kansas City, Missouri, for the employees in the previous- ly described unit, until Respondent and the Union reach a good-faith impasse, execute a new collective-bargaining contract, or the Union refuses to bargain in goodfaith. Consistent herewith, Respondent shall be required to make employees whole for any losses they may have suf- fered by virtue of its unlawful unilateral changes in their wages, hours, and working conditions. Having found that Respondent failed and refused on July 10, 1987, on their unconditional request to return to work, to reinstate its striking employees, it shall be re- quired that Respondent offer to all striking employees immediate and full reinstatement to their former positions and.make them whole for any loss of earnings or benefits suffered as a result of Respondent's refusal to honor their unconditional request to return to work, with interest thereon, to be computed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950). Interest thereon shall be computed as in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). See generally Isis Plumb- ing Co., 138 NLRB 716 (1962). Respondent shall also be required to expunge from its files all references to its unlawful refusal to reinstate its striking employees on their unconditional offer to return to work on July 10, 1987, and to notify them in writing of this expunction, and that said action or notations on their personnel files shall not be used as a basis for future personnel actions concerning them. See Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law' 3 and on the entire record, I issue the following recommend- ed'' ORDER The Respondent, Lapham-Hickey Steel Corporation d/b/a Stephenson-Yost Steel, North Kansas City, Mis- souri, its officers, agents, successors, and assigns, shall 1. Cease and desist from 1' All outstanding motions inconsistent with this Order are hereby overruled 14 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (a) Refusing to bargain collectively, on request, con- cerning rates of pay, wages, hours, and' other terms and conditions of employment, in good faith, with United Steelworkers of America, District 34 (the Union), which is the exclusive bargaining representative for employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its facility located in North Kansas City, Missouri, including truck driv- ers whose headquarters are at said plant, excluding, however, office and clerical employees, supervisors, watchmen, office janitors and porters. by engaging in surface bargaining without real effort or intent to attempt to reach agreement with the representa- tive of our employees, by such means as declaring that an impasse in negotiations exists when no genuine im- passe exists, by implementing unilaterally the terms of an outstanding contract proposal, thereby effecting changes in the terms and conditions of employment of our em- ployees without having first engaged in good-faith nego- tiations in a genuine effort to reach agreement on the terms and conditions of our employees' wages, hours, and working conditions. (b) Refusing to reinstate its unfair labor practice strik- ers pursuant to their unconditional offer to return to work. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement. The appropriate unit is: All production and maintenance employees em- ployed by Respondent at its facility located in North Kansas City, Missouri, including truck driv- ers whose headquarters are at said plant , excluding, however, office and clerical employees, supervisors, watchmen, office janitors and porters. (b) Offer the employees named below, if it has not al- ready done so, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of Respondent's failure to honor their requests to return to work from an unfair labor practice strike, in the manner set forth in the remedy section of the decision, dismissing, if necessary, any employees hired on or after May 10, 1987, when the unfair labor practice strike began. The names of the em- ployees entitled to these rights are: Fred Aldrich Kenny Hawkins STEPHENSON-YOST STEEL Harold Cecil Cal Monroe Richard Circle Ike Pinaire Doug Falconer Brad Strange John Hays (c) Remove from its files any references to the unlaw- ful refusals to reinstate, and provide the affected employ- ees, in writing , assurance that it has done so, and that its action against them will never be used against them in the future in any way (d) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its offices in North Kansas City, Missouri, copies of the attached notice marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered , defaced, or cov- ered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights. To organize To form, loin, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion and To choose not to engage in any of these protect- ed concerted activities. 407 WE WILL NOT refuse to bargain collectively in good faith concerning rates of pay, wages, hours, and other terms and conditions of employment with United Steel- workers of America, District 34 as the exclusive collec- tive-bargaining representative for our employees in the following appropriate unit: All production and maintenance employees em- ployed by us at our facility located in North Kansas City, Missouri, including truck drivers whose head- quarters are at said plant, excluding, however, office and clerical employees, supervisors, watch- men, office janitors and porters. WE WILL NOT engage in surface bargaining in an effort to avoid or evade agreement with the collective- bargaining representative of our employees, or in an effort to arrive at an "impasse" in negotiations, and so that we may thereby be enabled to implement unilateral changes in the wages, hours, and working conditions of our employees. WE WILL NOT unilaterally alter any of the terms and conditions of employment of our employees in the above-described bargaining unit. WE WILL NOT discourage membership in or activities on behalf of the above-named, or any other, labor orga- nization by refusing to reinstate unfair labor practice strikers, or by otherwise discriminating against employ- ees in their hire or tenure. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer full and immediate reinstatement to their former or substantially equivalent positions to any unfair labor practice striker who had not been reinstated on or before October 1, 1987, and WE WILL make them whole for any loss of pay or benefits which they have suffered by reason of the discrimination practiced against them, with interest WE WILL provide assurance in writing to each of the employees who engaged in the unfair labor practice strike against us that we have removed all references to our refusal to reinstate them in a timely manner, and WE WILL also assure them that we will never use any infor- mation in any such references against them in any way in the future. The affected employees are: Fred Aldrich Kenny Hawkins Harold Cecil Cal Monroe Richard Circle Ike Pinaire Doug Falconer Brad Strange John Hays LAPHAM-HICKEY STEEL CORPORATION D/B/A STEPHENSON-YOST STEEL