Commercial Candy

908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD K-B Resources, Ltd., Inc., d/b/a Commercial Candy Vending Division and Department Stores, Pack- age, Grocery, Paperhouse, Liquor and Meat Drivers, Helpers and Warehousemen, Local Union No. 995, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO.' Case 17-CA-11386 June 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On July 24, 1984, Administrative Law Judge Harold Bernard Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed -its authority in this proceeding to a three- member panel. The Board has considered the decision and record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings 2 and conclusions3 only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Sec. 8(a)(5) and (1) of the Act by engaging in bar- gaining with the Union without an intention of reaching agreement, and that the Respondent's conduct caused the employees to engage in a strike. He also concluded that the Respondent vio- lated Section 8(a)(3) and (1) by refusing to reinstate striking employees on receipt of their unconditional offer to return to work. The Respondent excepts to the judge's charac- terization of its conduct during the course of nego- tiations and his finding that the strikers were enti- tled to immediate reinstatement. We find merit to the Respondent's exceptions. Section 8(d) of the Act sets forth the parties' mutual obligation to bargain in good faith, but makes clear that "such obligation does not compel ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We agree with the judge's conclusion that the Respondent violated Sec 8(a)(1) of the Act by engaging in direct dealing with employees in an effort to persuade them to bypass the Union and negotiate a contract with the Respondent's owner, Bond, the employees were further in- formed that they would be better off without the Union because Bond would never sign a union contract We have conformed the judge's rec- ommended Order to these findings and conclusions either party to agree to a proposal or require the making of a concession." A party is entitled to stand firm by a bargaining proposal legitimately proffered.4 The Board is not permitted, under the guise of finding bad faith, to require the employer to contract in a way which the Board deems proper,5 nor may the Board "directly or indirectly compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements."6 The key issue for determination in cases where surface bargaining has been alleged, as here, is whether the Respondent's approach to bargaining demonstrated an unyielding rigidity during negotia- tions that rendered collective bargaining a futility.7 It is necessary to scrutinize an employer's overall conduct, both at and away from the bargaining table, to determine whether it has bargained in good faith.8 Applying these principles of law to the record here, we find that the Respondent did not engage in surface bargaining. The judge's finding that the Respondent failed to bargain in good faith is pre- mised largely on his subjective evaluation of the Respondent's proposals, and fails to consider ade- quately the totality of the circumstances. At the outset, we note that there was no refusal by the Respondent to meet with the Union, to make concessions in its bargaining position, or to provide adequate justification for its bargaining posture. The Respondent met with the Union on six occasions between July 1 and October 12, 1982. There is no contention that it failed to meet at rea- sonable times and places.9 Although the judge found that the Respondent "rigidly adhered to pre- dictably unacceptable proposals," an examination of the Respondent's contract proposals establishes that it modified or withdrew several of them in re- sponse to concerns expressed by the Union. A primary area of dispute during the course of negotiations was the Respondent's wage proposal. At the time negotiations began, employees were earning $7.41 per hour. The Union initially pro- posed a $5-per-hour increase in wages each year over the 3-year life of the contract. The Respond- ent proposed a change in the method of compensa- tion, which would have given a guaranteed weekly 4 Cook Bros, 288 NLRB 387, 389 (1988) 5 NLRB v Herman Sausage Co., 275 F.2d 229, 231-232 (5th Cir 1960). 6 NLRB v American National Insurance Co, 343 U S 395, 404 (1952) 7 Borg-Warner Corp, 198 NLRB 726, 729-730 (1972) 8 Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) e Indeed, after negotiations had broken off, the Respondent, by mail- gram dated October 18, 1982, indicated its willingness to engage in fur- ther negotiations The Union did not respond to its offer We find no sup- port in the record for the judge's characterization of the Respondent's offer as a self-serving effort to cover its tracks by creating the impression of a willingness to resume the negotiations (see judge's decision at fn. 2) 294 NLRB No. 82 COMMERCIAL CANDY VENDING DIVISION base salary of $175 with a 3-percent commission on nonperishable items i ° and a 1-cent commission on each package of cigarettes. The Respondent did not present its proposal as a request for a wage concession. Rather, the Respondent indicated its belief that the commission wage system would result in increased earnings for employees. The Union never requested any information about or supporting data for the Respondent's wage proposal.11 Although the Union lowered its wage demands throughout the negotiations, it never wavered from its position that employees be paid on an hourly basis. Thus, the Union remained as firm in its basic position regarding wages as did the Respondent. On the whole record, the Re- spondent's position on wages cannot fairly be said to have been calculated to avoid reaching agree- ment with the Union. The judge found that the Respondent' s manage- ment-rights clause proposal indicated a bad-faith bargaining posture . It is not unlawful for an em- ployer to propose and bargain concerning a broad management-rights clause.12 The Board has found bad-faith bargaining when the employer has insist- ed on a broad management-rights clause and a no- strike clause, while at the same time refusing to agree to an effective grievance procedure.13 The Respondent's proposal, however, did not except its exercise of management rights from the purview of the grievance procedure.14 Nor can it be said that it was refusing to agree to an effective grievance procedure. 10 The judge found that under the terms of the Respondent's wage proposal, the definition of "non-perishable" would be left up to the Re- spondent's owner Bond, with the result that he could severely restrict the potential commission earnings of employees The record establishes that, while the parties may not have come to complete agreement on the defi- nition of that term, the Respondent did not anticipate leaving that defini- tion to Bond's discretion Indeed, Bond testified that the term exempted only sandwich and cold food items, which left the bulk of the Respond- ent's products subject to the 3-percent commission ii The judge apparently predicated his finding of bad faith in part on the Respondent's failure to engage in "salesmanship" of its wage propos- al He suggested various methods whereby the Respondent could have made its wage proposal more attractive to the Union, including the pres- entation of evidence to corroborate its belief that employees' wages could be increased In point of fact, the Respondent's proposal was not a clear- ly unreasonable plan to restructure the wage rate The Union took no ini- tiative to examine the proposal , but instead adhered to its own economic position The law does not require the Respondent to present its wage proposal in any particular fashion , nor does it require it to make a wage proposal that would be most appealing to the Union K Mart Corp, 242 NLRB 855, 876 (1979), enfd 626 F 2d 704 (9th Cir 1980) 12 American National Insurance Co, supra, Tritac Corp, 286 NLRB 426, 427 (1987) is San Isabel Electric Services, 225 NLRB 1073, 1079 fn 7 (1976) See also Htckinbotham Bros, 254 NLRB 96, 103 (1981) 14 The Union's primary objection to the Respondent's management- rights proposal was the subcontracting provision The Respondent's chief negotiator , Tate , repeatedly assured the Union's representatives that if a problem should arise in this area , the Union could grieve the matter Thus, far from attempting to block the Union's access to the grievance procedure, the Respondent was encouraging its use 909 That the Respondent made final agreement on union-security and dues-deduction provisions con- tingent on the Union's acceptance of its package deal does not establish that it engaged in surface bargaining. The judge found the Respondent's fail- ure to include the dues-checkoff provision in its final offer was indicative - of its intent to avoid reaching agreement, discrediting the Respondent's chief negotiator's testimony that such failure was inadvertent. The Respondent was not required to agree to the dues-checkoff provision;15 even so, it is clear from its handwritten proposal of September 24, 1982, that the Respondent meant to include the provision as part of its final package offer. In its initial proposal, the Respondent informed the Union that it was seeking an alternative pension plan for its employees. The Respondent did not submit its alternative plan until September 24, 1982, because it was only then that the Union provided it with the pension information it had earlier request- ed. The Respondent proposed placing its current pension contributions into Individual Retirement Accounts; however, the Union refused to consider that alternative. A review of the Respondent's pro- posal and its reasons for advancing that-proposal reveals that neither was calculated to frustrate bar- gaining. Indeed, the Respondent's initial proposal provided several pages documenting its concerns with the present pension plan.16 Although the Respondent's wage proposal neces- sarily involved a change in contractual language relative to employees' hours of work, the Respond- ent's position on hours was not inflexible. The Re- spondent initially proposed a 40-hour workweek scheduled on a regular basis during a 7-day week.'' There was no provision for overtime pay because of the Respondent's proposed conversion to a commission system of wage payment. The Re- spondent's position changed substantially by the time it presented its final proposal, which provided for overtime pay of time and one-half for work performed in excess of 40 hours and for 4 hours' guaranteed reporting pay. The final proposal also promised to try to continue to schedule employees for less than 40 hours each week and provided for formal notification to the Union at least 3 days in advance of scheduling changes. 15 Tritac Corp, supra 's The judge characterizes the Respondent's submission of a proposal to change the existing pension plan as being indicative of its bad faith by being proffered "without the slightest apparent concern over whether that might not be a better subject for another time " Certainly, both par- ties must be free to submit proposals on all proper bargaining subjects without regard to a judge's subjective analysis of appropriate bargaining styles Pension plans are irrefutably appropriate subjects of bargaining 11 The former contract provided for a workweek of 5 consecutive days, Monday through Friday, with overtime paid after 40 hours 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent's initial proposal regarding holi- days eliminated the employee's birthday as a float- ing holiday. In response to the Union's demands, the Respondent reinstated that provision. Earlier contracts between the parties contained a separate clause dealing with the discharge of em- ployees. The Respondent initially proposed elimi- nating that clause based on its reasoning that dis- charge provisions belonged in the grievance proce- dure. Its final proposal acceded to the Union's demand for a separate contract discharge clause. Although the Respondent initially proposed a contractual provision dealing with the Union's re- sponsibility with regard to the enforcement of the contract, it withdrew that clause from succeeding proposals as a result of the Union's opposition. The Respondent initially proposed insertion of a contract clause permitting supervisory employees to perform bargaining unit work under certain con- ditions. After discussing the proposal with the Union's 'negotiating committee, the Respondent withdrew the proposal from its final contract terms. The former contract provided for 12 days of sick leave per year for employees. The Respondent ini- tially proposed eliminating that provision and sub- stituting a "wellness" program that provided that employees could earn one-half day's pay for each full calendar month in which they missed no work for any reason. In its second offer, the Respondent withdrew that proposal as a result of union opposi- tion, and reinserted the former contract language. Although the Respondent initially proposed modifying the health and welfare provisions of the contract, it eliminated those changes from its final proposal. Also in response to union objections, the Respondent withdrew reference to the no-strike clause from its final grievance procedure proposal. Finally, the Respondent's final offer accepted the Union's proposal on funeral leave. This review of the Respondent's bargaining posi- tions amply demonstrates that they were not clear- ly designed to frustrate agreement on a collective- bargaining contract. The Respondent modified, re- drafted, and withdrew proposals in major areas in response to concerns expressed by the Union. It also put forth legitimate business rationales and jus- tifications in support of many of the changes it sought. While setting forth the Respondent's initial proposal in great detail, the judge failed to consider adequately the Respondent's subsequent movement relative to those proposals.18 Is In finding that the Respondent engaged in surface bargaining, the judge apparently relied in part on the alleged failure of the Respondent to provide the Union with a final contract for signature Assuming that the Union did make such a request, the failure of the Respondent to per- In sum, we find that the totality of the Respond- ent's conduct throughout the negotiations demon- strates hard bargaining at best; the evidence falls short of establishing surface bargaining on the Re- spondent's part. The parties met in frequent negoti- ating sessions and the record reflects no conduct by the Respondent away from the bargaining table which would suggest that its bargaining positions were taken in bad faith in order to frustrate agree- ment on a contract. It appears that the judge at- tempted to substitute his judgment for that of the Respondent in assessing the appropriateness of the substantive terms of its collective-bargaining pro- posals. That the Board may not do.19 Accordingly, we dismiss the 8(a)(5) allegations. It follows, and we find, contrary to the judge, that the strike was an economic stnke,20 and that the employees were thus not entitled to reinstatement on their uncondi- tional offer to return to work. We therefore also dismiss the 8(a)(3) allegations. CONCLUSIONS OF LAW 1. K-B Resources, Ltd., Inc., d/b/a Commercial Candy Vending Division is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Department Stores, Package, Grocery, Paper- house, Liquor and Meat Drivers, Helpers and War- ehousemen, Local Union No. 955, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Since about July 15, 1975, the Union has been the exclusive representative for the purposes of col- lective bargaining of the employees in the follow- ing unit: All full-time and regular part-time vending route salesmen employed by the Respondent at the facility, excluding office clerical employ- form this ministerial task cannot be considered a substantial factor dem- onstrating bad faith in the circumstances of this case Union President Larson admitted receipt of a copy of the Respondent 's final proposal on October 12, 1982 There is no evidence that there was any change in that proposal between that date and the Union's subsequent requests In these circumstances, the Respondent's alleged failure to provide an additional copy of its final proposal cannot be used to establish surface bargaining 19 Tntac Corp, supra, 427 20 Although we agree with the judge that the Respondent violated Sec 8(axl) of the Act in certain respects (see fn 2), we do not find such violations sufficient to convert the strike to an unfair labor practice strike The statements made by Route Supervisor Bicknell were made well in advance of the strike to employees who were subsequently present during negotiations There is no evidence that the conduct of the Respondent which we have found in violation of the Act caused or pro- longed the stake See Gilberton Coal Co., 291 NLRB 344, 348 (1988); All- britton Communications, 271 NLRB 201, 207 (1984) Inasmuch as we have found only violations of Sec , 8(a)(l) of the Act, we have amended the judge's recommended order to provide for narrow remedial language COMMERCIAL CANDY VENDING DIVISION 911 ees, professional employees, guards and super- visors as defined in the Act. 4. The Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union as the exclusive repre- sentative of the employees in the above-described unit. 5. From October 12 to November 8, 1982, the Respondent's employees were engaged in an eco- nomic strike. 6. The Respondent did not violate Section 8(a)(3) and (1) of the Act by denying employees Jimmy Shadden, Donald Craig, Brian Sampson, and Jimmy Harrigan reinstatement on November 8, 1982, on their unconditional offer to return to work, and instead placing them on a preferential hiring list. 7. The Respondent did not threaten employees with reprisals because they requested that a super- visor discontinue performing bargaining unit work. 8. The Respondent committed unfair labor prac- tices in violation of Section 8(a)(1) of the Act by engaging in direct dealing with employees in an effort to persuade them to negotiate a contract with the Respondent's owner and to bypass the Union, and by informing employees that they would be better off without the Union because Bond would never sign a contract with the Union. 9. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER dix."21 Copies of the notice, on forms provided by the Regional Director for Region 17, 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. (b) Notify the Regional Director in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not found herein. MEMBER HIGGINS, dissenting in part. I agree with my colleagues and the judge that the Respondent violated Section 8(a)(1) of the Act when it dealt directly with employees in an effort to convince them to bypass their Union and negoti- ate a contract directly with its owner, Bond, and by telling employees they would be better off with- out a union because Bond would never sign, a union contract. I cannot, however, join with my colleagues in their finding that the Respondent bar- gained in good faith with the Union: Rather, for the reasons fully explained in his decision, I would adopt with the judge's finding that, when viewed in its entirety, the Respondent's conduct both at and away from the bargaining table reveals that it had no intentions of reaching any agreement with the Union. The National Labor Relations Board orders that the Respondent, K-B Resources, Ltd., Inc., d/b/a Commercial Candy Vending Division, Kansas City, Missouri, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Engaging in direct dealings with employees in an effort to persuade them to negotiate a con- tract directly with the Respondent and to bypass the Union. (b) Informing employees that they would be better off without a union because the Respondent will never sign a contract with the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility in Kansas City, Missouri, copies of the attached notice marked "Appen- 2I 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. WE WILL NOT engage in direct dealings with em- ployees in an effort to persuade them to negotiate a contract directly with us and to bypass Department Stores, Package, Grocery, Paperhouse, Liquor and Meat Drivers, Helpers and Warehousemen, Local Union No. 955, affiliated with International Broth- 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. WE WILL NOT inform employees that they would be better off without the Union because we will never sign a contract with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. K-B RESOURCES, LTD., INC., D/B/A COMMERCIAL CANDY VENDING DI- VISION Constance N. Traylor, Esq., for the General Counsel. Michael P. Alden, Esq. and David McCarthy, Esq., of Lin- coln, Nebraska, for the Respondent. Robert L. Dameron, Esq., of Kansas City, Kansas, for the Charging Party. DECISION out submitting any supporting evidence or argument at the hearing or on brief. The record reflects that the Union was certified in such capacity July 15, 1975-this based upon the formal complaint allegation and Re- spondent's express admission thereto. The record further reflects that the Union has continued to actively serve in such capacity, including during the course in negotia- tions between the parties for a new contract July through October 1982 as well as in the aftermath of those negotiations, that is, attempts to secure strikers' re- instatement and copies of a new contract in November and December, the filing of the charges herein, and the hearing in June 1983 wherein the Union as Charging Party was represented by counsel who participated fully on behalf of the union members' interests. In short, there is no advanced or apparent support for Respondent's denial to this allegation in the complaint and by all ac- counts the Union, in fact, continued in its certified capac- ity as exclusive collective-bargaining representative for Respondent's employees at all relevant times. It is so found. STATEMENT OF THE CASE HAROLD BERNARD, JR., Administrative Law Judge. I heard this case in Kansas City, Kansas, on June 20, 21, and 22, 1983, following charges (December.28, 1982, and January 31, 1983) and issuance of the complaint (Febru- ary 4, 1983) alleging that Respondent violated Section 8(a)(l), (3), and (5) of the Act during contract negotia- tions between the parties from July to October 1982 by engaging in threatening conduct and surface bargaining, and by thereafter refusing to reinstate unfair labor prac- tice strikers notwithstanding their unconditional offer to return to employment on November 8, 1982. FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent operates a vending machine products dis- tribution and supply business in Kansas City, Missouri, its State of incorporation, and annually purchases goods and services valued in excess of $50,000 directly from sources outside Missouri in the course of such oper- ations. I find, as Respondent admits, that it is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act, and was certified as the exclu- sive collective-bargaining representative of employees in the following appropriate unit: All full-time and regular part-time vending route salesmen employed by the Respondent at the facili- ty, EXCLUDING office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. Respondent, in its answer to complaint filed February 11, 1983, admitted the foregoing, that is, the Union's past representative status, but denied that the Union had con- tinued to be such representative in February 1983 with- II. THE UNFAIR LABOR PRACTICES Background Respondent owner Gary Bond purchased the business in May 1979, and when the then-existing contract be- tween the predecessor to Bond and the Union ran out, Bond signed a new agreement running from August 1979 to August 1982, which was similar to or the same as the former agreement. The 4 route salesmen covered by the contract serviced some 464 machines, which were stocked with soda pop, snacks, cold and hot drinks, canned food, dairy products, and cigarettes. After the Union sent Bond a letter on June 4, reopen- ing the parties' contract for negotiations looking to a new agreement, the parties met on six occasions in the following 4 months. July 1-The Union's Opening Proposal This 'meeting was held in Bond's office attended by Union Representatives Bobbie Davidson and David Sim- mons, Local 95 secretary-treasurer and business agent, the four route salesmen, and Bond. The Union proposed only 6 changes among the contract's 16 articles, asked for discussion on uniform cleaning costs, and that a new provision, concerning funeral leave, be added, content to leaving all remaining articles the same. The Union's opening proposals sought a new 3-year term in the par- ties' agreement, the addition of a single floating holiday annually, deletion of the existing requirement that em- ployees on sick leave provide a doctor's slip, a wage in- crease of $5 per hour in each of the following 3 years, full company payment into health and welfare, and an in- crease in the pension benefit. Bond laughed off the proposals with the comment that if he agreed, such would put him out of business, and the meeting ended, having lasted only 20 to 25 minutes. COMMERCIAL CANDY VENDING DIVISION 913 July 23-The Respondent's Proposal This meeting, also at the Company's premises, was at- tended by the same persons plus John Tate and David McCarthy, attorneys skilled in labor relations practice and representing Respondent. Tate set the tone for the negotiations, informing the Union that the Company's "vast number of proposed changes and modifications" were brought about in part, by the Union's "fantastic fi- nancial demands" stating further that "due to the Union being unrealistic, we've decided we had better do some- thing different." Tate proceeded to read a 106-page proposal, describ- ing the existing contract article language , usually fol- lowed by his own commentary, philosophical or other- wise, then the proposed modification followed once more by personal commentary. (Jt. Exh. 4.) When he was done, it was obvious the Respondent 's position called for numerous, drastic changes in existing employ- ee benefits, and rights established in the previous two collective-bargaining agreements. Wages Thus, Tate proposed outright elimination of the exist- ing wage system based upon an hourly rate which also guaranteed employees an 8-hour day and minimum of 40 hours a week plus time and a half of the $7.41 rate for overtime, and advanced in its place an incentive pay system based upon commissions for certain sales plus a base pay of $175 weekly. Seniority In place of an existing contract provision (art. 4) grant- ing employees full seniority rights. "Seniority shall pre- vail at all times based upon length of service and qualifi- cations," Respondent proposed that seniority govern only if the Company "deems" that skill, ability and pre- vious experience are equal, adding the still further re- striction "unless other business conditions [unspecified] prevail." (Jt. Exh. 4, p. 13.) Management Rights Respondent proposed to include in the parties' agree- ment a first-time management-rights clause delegating to itself all-encompassing authority in or to specified areas within the employer-employee relationship and work- place sphere of activities. Thus, Tate's proposal claimed management's retention of rights as follows- ARTICLE-MANAGEMENT RIGHTS. The Company shall retain the rights to manage the plant and its business, including but not limited to, the right to determine the length of the workday and work week, the work rules and when overtime shall be worked, to determine the starting and quit- ting time and the number of hours and shifts to be worked, to hire, promote, demote and transfer em- ployees, to determine the qualifications, efficiency and ability of employees, to determine the work load performance level and to make or change rea- sonable rules, regulations and practices; to close down or move the business or any part thereof or curtail operations; to discontinue its business in whole or in part and to sell or dispose of all or any part of its assets and to participate in any form of reorganization described in the Internal Revenue Code; to control and regulate the use of machinery, equipment and other property of the Company; to determine the number of employees in each classifi- cation; to introduce new or improved production methods and products to be handled; and otherwise, generally, to manage the operation and direct the working force. The above rights are not all inclu- sive, but enumerate by way of illustration the type of rights which belong to the Company. The Company shall also have the right to disci- pline, reprimand, suspend or discharge employees for gust cause, to subcontract work when necessary and to layoff and recall employees; provided these rights shall not be used to avoid the other provi- sions of this Agreement. Union Cooperation and Responsibility Presented on the heels of the proposal on management rights was another new provision expressly imposing upon the Union responsibility to cooperate with the Company to assure a full days' work from union mem- bers, to actively combat "absenteeism and other practices which restrict the efficient operation of the plant" and that the Union's members shall give notice to the Com- pany before absences. The clause further stated, that the Union "will earnestly strive to improve and strengthen good will between the Company and its employees, the Union and the Public." (Jt. Exh. 4, p. 22.) Union Security and Checkoff Tate proposed to eliminate the union-security and checkoff provision in the existing contract, article 12, stating the Company would use it for leverage as a bar- gaining tactic to get other items, yet then proceeding into a long and drawn out philosophical attack on the ex- isting clause, likening it at one point to the stenciling of Jews in Germany , stating, "In a sense you are asking us to `stencile' every employee union, before that employee has a right to work for this Company." (Jt. Exh. 4, p. 37.) Tate's diatribe also labeled the union-security clause un-American, and further stated, "Just because labor unions have violently imposed their will on society in the past is no reason at all today for this company to agree to force, to enslave if you please, employees into the labor union movement." Inasmuch as Tate had earlier indicated that the Com- pany was using the matter of the union-security clause only as a chip in the bargaining process to gain other items, it is not clear why he would engage in such an intense prolonged attack on this contract provision, an attack so vitriolic as to easily risk inflaming feelings at the bargaining table and thereby obstructing the bargain- ing process itself, unless this was of no concern to him, a matter treated further below. 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD No-Strike Clause The parties' existing contract clause expressly provid- ed that, "it will not be a violation of their Contract for employees to refuse to work where there is a strike, lockout or picket line." approved by the Teamsters Joint Council No. 56. At this session, Tate proposed a new clause containing the language, "The Union agrees that there shall be no strike, sympathy strike, slowdown, picketing or other stoppages, suspension of, or interfer- ence with the Company's work or business." The clause deprived employees who particiapted therein of any re- course to the grievance procedure or any other contract provision except on the question whether the act took place, and gave the Company the sole right of discipline, including discharge of the employee. Respondent's clause also omitted mention of the existing no-lockout provision with an offer to make such a promise if the above no- strike provision were accepted. (Jt. Exh 4, pp. 23, 41.) The proposed clause also deleted subsidiary rights ac- corded the Union in the event of strikes or resulting damage and the like. (Art. 13, Jt. Exh. 1.) of lower vacation benefits if business dropped along with commissions connected to W-2 income for the year. In addition, the proposal sought to lengthen time periods between tenure-based benefit categories, eliminate the 5- week benefit for 20-year employees altogether, and pro- posed restricting summer vacations. Pensions Tate's proposal called for the existing Teamsters Cen- tral States, Southeast and Southwest Areas Pension Fund, contained in the parties' contract, Article 15-Pen- sion, to be completely discarded, and replaced by new proposals involving individual retirement accounts (IRAs) to be jointly funded by employees and the Com- pany, or, also a discontinuance of the Teamsters plan, an alternative plan under which the Company would give directly to employees only two-thirds of the present company contribution to the fund, leaving them alone to fend for themselves regarding any pension benefit, and less well off due to Respondent's reduced contribution. (Jt. Exh. 4, pp. 44-105.) Supervisors and Bargaining Unit Work Respondent proposed that there be no impediment to what duties could be performed by its supervisors absent layoff or loss of overtime situations in the course of busi- ness operations, a departure from the existing protection for unit employees in the current contract wherein it is stated, "The Company agrees that no supervisor shall do bargaining unit work." (Art. 12, Jt. Exh. I and Jt. Exh. 4, p. 24.) Sick Leave Respondent proposed to entirely discontinue any pay- ments to employees off work due to illness, although the then present benefit consisted of 12 days sick pay, there was no dispute that Tate was told that only 1 employee had been off 1 day sick that year, and the union proposal had sought only the modest change that a doctor's slip be eliminated from the requirement for receiving sick pay. In its place, Respondent proposed a so-called well- ness plan wherein employees could earn one-half day's pay for each month the employees had missed no work for any reason, amounting only to a 6-day benefit. (Jt. Exh. 4, p. 30.) It contained no provision for employees out sick and therefore the sick leave benefit protection against pay lost due to accident or illness would be en- tirely lost to employees. Vacations The company proposal was a drastic change from the existing vacation benefit, inasmuch as it was to be based upon 2 percent of the employee's W-2 shown compensa- tion for the year, a figure tied, in turn, to the new incen- tive pay plan based upon commission described above. By contrast, the existing plan was based upon number of weeks the employee was entitled to, given his years of tenure, multiplied by that employee's weekly salary-a definite sum and therefore an ascertainable amount the employee could count on. Respondent's proposal had strong elements of uncertainty and the admitted potential Overtime Respondent's negotiator also proposed that "over- time" pay, a benefit lost to employees in its original form wherein it was based upon time and one-half the $7.41 regular hourly rate yielding $11.12 (lost because Re- spondent's wage incentive commission plan eliminated the hourly pay scale for a commission plan), be reduced to a prorata type computation against the $175 newly proposed "base" weekly salary. This "overtime" propos- al, unclear at best due to the Respondent' s emphasis on a commission plus base pay plan, would yield a substantial- ly lesser amount in overtime pay, that Is, only about $6.57 per overtime hour, compared to the then current $11.12 per overtime hour. Hours Respondent's proposal eliminated the guarantee of 8 hours a day, 40 hours a weekwork, as a corollary to the proposed switchover to a commission-plus-base pay system. The existing guarantee of 40 hours was omitted from Respondent's proposal, and the Monday through Friday definition of a workweek was eliminated by a new definition, "the normal seven (7) day week." The employees' then current protection against being called back to work within 8 hours of having completed a tour of duty was eliminated in Tate's commentary on the pro- posed new clause. (Jt. Exh. 4, pp. 3-5.) Probationary Period The Company's proposal substantially lengthened the probationary period from the existing 30 days to 120 days. Health and Welfare Tate stated there would be no increase in the Compa- ny's contributions, rejecting the Union's proposal. He also stated there should be lower contributions by the Company if the person covered by the plan were single, COMMERCIAL CANDY VENDING DIVISION or if the person covered has a spouse who is covered elsewhere, and declared he thought a plan other than the Teamsters program' should be checked due to costs of the former being so high, indicating investigations into such were being made. Holidays Tate's proposals rejected the Union's request for an additional holiday, sought to switch the "floating" holi- day to a fixed date, and withdrew the paid holiday from an employee out sick, a benefit accorded employees in the current contract. (Jt. Exh 1, p. 2, Jt. Exh. 4, p 8.) The proposal also withdrew holiday pay from any em- ployee who had not yet completed the probationary period, which was, as noted, extended three times longer than the existing 30 to 120 days. Other Subjects Respondent further sought an express right by a con- tract provision to administer polygraph tests to all em- ployees at intermittent and unscheduled times, sought a "tightening up" in the discharge-grievance procedure lan- guage, and proposed to limit the Company's costs for laundering uniforms to one-half, whereas the current practice limited an employee's costs to $2.75 There were no apparent or anticipated problems on the contract term, 3 years, the safety provision, and jury duty The Third Meeting-August 24 This 2-hour meeting at Federal Mediation offices con- sisted of the Union dropping its wage proposal in half- from $5 an hour to $2.50, adhering to its positions on hours, seniority, vacations, sick leave, grievance proce- dure, and health and welfare benefits, as well as union security and the existing no-strike contract language. The Union also counterproposed a new offer on uniforms, and reduced its pension payment benefits request. Although Respondent made a proposal on funeral leave, it took the position it could not negotiate a con- tract without receiving information it had requested from the Union the previous meeting on the existing pension fund, and made no changes in any of the sweeping pro- posals made during the second meeting. The Fourth Meeting-September 2 Citing Respondent's intentions to seek cost reductions and the need to "protect our future through limitations in our contract," Tate refused to withdraw the Compa- ny's proposal to delete the 40-hour a week, 8-hour week- day guarantee, and 4-hour guarantee on call-in pay on Saturday, notwithstanding Davidson's stated reasons in justification for its continuance. Addressing only a single concern expressed by the Union, which had manifested general and specific disagreement with abolishing the guarantee completely, as Respondent's proposal required, Tate expressed a willingness to limit the required work- week to 5 days if the Union would otherwise agree to management's proposal. Since this "counterproposal" ad- dressed a relatively minor potential disadvantage in the Company's broadside rejection of the employees' guaran- tee-a mainstay in the agreement at the time, it appears 915 to be a transparent bargaining "concession" tactic rather than reflecting any appreciable flexibility in the Compa- ny's position on its drastic proposal. The Union rejected the proposal. Respondent continued to oppose an extra holiday but would allow the floating holiday then in existence to continue to float providing the employee gave a week's notice before its use; agreed to continue the same uni- form allowance, but allow employees to clean their own subject to discharge if the employee's uniform was not cleaned and ironed properly; conditioned acceptance of the Union's proposal regarding vacations on the stipula- tion it would apply only to present employees and not to any future employees; conditioned acceptance of the "present" (not the Union's proposal) sick leave provision on agreement "on everything else"; expressed the need for more figures on health and welfare, and pressed its request on the Union again for the information on the pension. In the major areas of importance wherein Respondent sought far-reaching contract modifications described above, including seniority, management rights, union co- operation, unauthorized activity, supervisory work, wages, vacations, union security and checkoff, and hours, Respondent did not move. The Union, citing problems over abuse in the use of polygraph tests, problems arising from the proposed elimination of the employees' seniority rights, problems with the proposed management-rights clause's sweeping scope, including its subcontracting clause, the risk of injury to employees if required to cross picket lines pur- suant to Respondent's unauthorized activity clause (no- strike clause), the loss of vacation benefits under the va- cation proposal made by Respondent if sales, and thus, income should drop, and past accommodations by the Union regarding supervisory performance of unit work, opposed the Respondent's proposals in those areas. Seeking headway in the efforts to arrive at a compro- mise, the Union dropped its wage proposal to $2, to which Respondent made no response, dropped its pen- sion benefit request another two steps lower beyond what it had already been reduced to, agreed to a lesser holiday benefit by lessening entitlement to holiday pay, and submitted a proposal to lessen Saturday pay and split the shift then in response to the Company's declared need for greater flexibility and cost reduction At the conclusion of the meeting, the Union requested an extension of the parties' contract beyond a deadline set in Tate's letter, but the latter refused citing the Union's footdragging on the pension information and the unexplained "feeling" that the Union had "bogged- down" negotiations. The Fifth Meeting-September 24 Continuing its efforts to reach an agreement, the Union dropped its wage requests substantially lower to $1 the first year, and 75 cents in the remaining 2 years; and, in response to company concern, tightened the grievance-clause language to require an employee to file a grievance within 3 days after his knowledge of the al- leged contract violations rather than allowing unrestrict- 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed filing time. Davidson also advised Tate the union counterproposal on hours accorded Respondent 'greater flexibility given its split-shift, caused elimination of Satur- day premium dollar pay, reminding Tate that Tate's pro- posal on hours continued to eliminate the guarantees, and that under his management-rights clause, the Company could lay off employees in order to have its work done more cheaply elsewhere. In reply, Tate stated that was not the Company's intention, and opined that the words "if necessary" would provide access to the grievance procedure without offering to meet the Union's natural concern by inserting either-a further amendment or clari- fication expressing such intention and safety-value in the contract. The Union nevertheless further agreed to move the discharge clause into the grievance procedure clause as suggested by Respondent, but continued to object to the polygraph proposal, and Respondent's continuing in- sistence on its no-strike proposal. Respondent continued to reject the Union's proposal on health and welfare, of- fering only to continue the same level of benefits and agreed to give back the fifth week of a vacation benefit it had withdrawn from the existing vacation benefit if the Union agreed to the remainder of its proposals. Respond- ent agreed to restore 4 hours of the call-in pay to the 8 hours deleted under its earlier proposal, but omitted mention of a lunch period under its proposal on breaks, which otherwise 'continued the same times for breaks, and withdrew its proposals on union cooperation and sick leave, leaving the latter the same while continuing to_ reject the Union's proposed change eliminating a doc- tor's slip. Respondent's position of funeral leave accepted the Union's proposal, and it also withdrew its proposal on supervisory work leaving matters where they stood on this subject as described above, that is, the Union accom- modating Respondent's needs as they arose. Respondent remained firm and unwilling to move from its position on seniority, wages, union security, and checkoff (except as further developed later in the meeting described below as to union security). Instructive in assessing Respondent's motives in this case is that the Union also proposed another version of a management-rights clause to Respondent quite similar in many respects to Respondent's proposal but its reasona- ble effort toward a compromise was rejected by Re- spondent's reply that it saw nothing wrong with its own proposal, though the Union pointed to concern over sub- contracting. (Jt. Exh. 9.) After about 2 hours had elapsed, Davidson, based on what had transpired, and expressing the belief Tate had not moved at all, asked for Respondent's best offer, which Tate later presented to him. (Jt. Exh. 10.) Since that offer remained substantially, if not nearly exactly the same, as Respondent's prior position except that Re- spondent would agree to union security and checkoff if all the Company's proposals were agreed to, Davidson ex- pressed his frustration with Respondent's restrictions "all the way" on the Union as to wages, hours, seniority, holidays, and vacation pay, and the meeting ended, Da- vidson repeating his conviction that Tate had not moved at all and stating he intended to call a strike vote. The Sixth and Final Meeting-October 12 This meeting was attended by the local Union's presi- dent. Ron Larson, called in by Davidson, who asked Larson to try to avert a strike. Larson called the media- tor to set up the meeting to see if, "we could resolve the issues," and was joined by another business representa- tive for Local 955. Tate, Bond, and the mediator com- pleted the lineup of those present. Tate proposed a written "final" offer which warned it would be put into effect 6 days later absent agreement or acceptance, again conditioning the union-security clause upon acceptance of the package This proposed contract, face, nevertheless continued to delete the union-security checkoff clause which was an integral part of the existing union-security agreement. (Jt. 11, p. 7, art. 14.) Larson went over the proposed contract indicating the Union's objections to the sweeping nature of the manage- ment-rights clause, detailing what, in the Union's view, would fall under the Company's sole prerogative to con- trol if the clause were accepted, and declaring Tate's proposal was "insulting to my intelligence, explained the basis for the Union's objections, illustrating by example what the Union was concerned would occur if the Re- spondent's proposals were accepted, mentioned again the Union's views concerning the -no-strike provision, and possible danger to employees crossing picket lines as re- quired by the clause, and disputed the Company's basis for discarding the pension plan on the grounds that it was not underfunded as contended by Respondent. Larson recalls further that Tate produced no figures in support of the Company's wage proposal which the par- ties also discussed and wherein the $175 base in the Company proposal was compared to the nearly $300 then current wage. Larson then offered to reduce the Union's proposal on wages yet a fourth time, down to a 50-cent increase per hour, and to avert a strike by keeping the remaining con- tract provisions in place the way they were. Indicating also that the Union's position ignored other earlier areas of agreement, Tate rejected the Union's offer, stating "No, you've got your final proposal and there will be no changes." Respondent's Conduct away from the Bargaining Table In events paralleling negotiation sessions and accord- ing to two employee witnesses, Respondent's route sales- men admitted Supervisor Brian Bicknell told the employ- ees at Respondent's facility that they would be better off going to Gary Bond and negotiating their own contract, that he did not think Bond was going to sign a contract. Employee Jimmy Shadden placed the above conversa- tion in mid-June. Shadden also testified that around the first of July, Bricknell told him and another employee, Brian Sampson, that they would be better off on a com- mission basis, made derogatory remarks concerning Union. Negotiator Davidson-claiming Davidson never did anything for him and that he was glad he was not in the Union-and again said Bond was not going to sign a contract with the Union. Again, this time in August, Shadden testified he was present when Bricknell, re- COMMERCIAL CANDY VENDING DIVISION sponding to a question by Sampson to Bracknell concern- ing what Bricknell thought of the contract negotiations at that time, replied, "Well, I can guarantee you that Gary Bond is not going to sign any more contracts." Employee Sampson testified that Bricknell asked Samp- son and Shadden why they should not get a contract with Gary Bond themselves, (that it would be) "a better deal," they would just have to trust Bond. Sampson said Bricknell made it apparent "we'd be better off without the Union because Gary Bond could give us higher wages and he wouldn't have to pay this that or the other." Sampson further recalls a conversation in August when Bricknell told Shadden and him that under no cir- cumstances would Bond sign the contract, and that Bricknell stated this on other occasions as well. For his part, Bricknell at first testified under direct ex- amination that he never told employees that Gary Bond would not sign a contract, but on cross-examination ad- mitted he told employees that there "was no way that Gary's going to sign a contract for $15.00 an hour," and testified he could "not recall" the contents in any "other" conversations. Bricknell's failure to recall other conversations leaves intact,the employees' corroborating accounts of Bricknell's reported statements. Further, while Bricknell did not strike me as one who would stray from the truth, his nervousness and tight self-con- trol marked by discomfort while on the stand stood in contrast to the opposing freely offered testimony by the employee witnesses Further, these witnesses testified to more than two occasions when Bricknell made these re- marks and Bricknell only remembers two occasions when such comments were attributed to him and it was not made clear, even under his account , whether he re- ferred to Bond not signing a contract for $15 an hour on only one of those occasions-leaving intact the testimony concerning Bond not signing a contract-period-on the other, or whether he was testifying that on both occa- sions, he had added the proviso "for $15.00 an hour." It is not likely, in my view of the record, that Bricknell would state, in August, when the Union had already lowered its wage proposal below the "$5.00 per hour over 3 years" in the negotiations, that Bond would never sign a contract "for $15 an hour," for such would be a meaningless comment absent such a proposal from the table I conclude therefore, on the credited testimony, that the Respondent, through Bricknell and by the above conduct, unlawfully engaged in direct dealings with em- ployees in an effort to persuade them to negotiate a con- tract with Respondent's owner, Gary Bond, and to bypass the Union while the parties were in negotiations, offered employees the prospect of a "better deal" to thereby undermine employee support for the Union, and further threatened employees with the prospect that Re- spondent would never sign a contract with the Union, thereby confronting employees with the prospect of meaningless futility in the negotiating efforts by the em- ployees' lawful collective-bargaining representative, to further lessen employee union support, all in violation of 917 Section 8(a)(1) of the Act.' Quality Engineered Products Co., 267 NLRB 593 (1983); Carpenters Local 1780, 244 NLRB 277, 280 (1979); and D & H Mfg. Co., 239 NLRB 393, 403-404 (1978). Postnegotiating Session Events On the Saturday following the final negotiating session on October 12, the union representatives, Davidson and David Simmons, the secretary-treasurer, and the business agent, met with the four route drivers,,who had been present at all or most of the meetings listening to Re- spondent's proposals, which the men discussed and re- viewed at this Saturday meeting. There was talk in par- ticular that the employees "could not live" with the lan- guage in the Company's proposals, as they would under employees' analysis lose money, whether business re- mained at the present level or got worse. Employees also expressed the view that it was wrong for the Company to seek terms that would cause them to lose money, re- ferring to the percentage commission system. Following this discussion, the employees voted to reject the Company's proposals and go on strike.2 The employees went out on strike for the next 3 weeks, and then met with union representatives to dis- cuss ending the strike and accepting Respondent's last offer, on November 18. Upon employees reaching a deci- sion to do so, in a vote, Simmons contacted Bond and then Tate's associate attorney McCarthy on the spot, ad- vising them of the employees' meeting with the Union and their desire to return to work pursuant to uncondi- tional offers. Respondent admits that such written uncon- ' I find no trace of unlawful retaliatory motive behind Bond's reactions on July 23, to the drivers' request that Bracknell be removed, as he had become a supervisor, from performing Saturday route work It is a fact that the contract prohibited supervisory performance of unit work, but the evidence shows that this was a matter generally resolved by the par- ties, especially when employees, as regards this route work, did not desire assignment , requiring Bond to find a willing person His "new rules" response seems connected to operational considerations only, such as safeguarding property and ensuring that the route would be serviced, rather than to action designed to penalize the employees' concerted activ- ity By mailgram dated October 18 confirming an October 15 message, Tate notified the Union that implementation of the last offer was delayed until October 25 or later, and that the Company was agreeable to further contract negotiations in the meantime "should Union believe impasse can be broken" (emphasis added) This telegram reveal no intention by Re- spondent to move from its entrenched positions, herein found to compel the conclusion that it had engaged in purely surface bargaining , rather it seems designed as an effort to cover its tracks by creating the impression of a willingness to resume the negotiations at the same time belying a sin- cere intent to engage in meaningful bargaining by casting the Union in the role of an appeaser with the condition for such negotiations being "should Union believe impasse can be broken " In short, this telegram is worded so as to convey the message that if there are to be renewed ne- gotiations, the Union will be expected to be the party making conces- sions, it reveals no corresponding willingness on Respondent's part to do so, or to consider doing so, yet it was Respondent's overall conduct de- scribed above, which led to the breakdown in the parties' negotiations, including its take-it-or-leave-it attitude on contract provisions of major significance Accordingly, the Union's failure to reply to Respondent's self-serving message in no way can be considered to lessen Respondent's responsibility for the failure of these negotiations There is no evidence or allegation that Respondent in fact implemented the changes in employment conditions as stated in the telegram , conse- quently the issue of any unlawful unilateral changes in employment con- ditions is not before me 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ditional offers to return to work from employees Donald Craig, Brian Sampson, and Jimmy Shadden were made on November 8, 1982. (G.C. Exh. 1 G.) Respondent re- fused by letter on the same date, November 8, to rein- state the employees, claiming they had been replaced. (R Exh 8.) Simmons, during these conversations with Bond and later the same day with Counsel McCarthy, specifically inquired as to the employment conditions under which employees would be returning to work and in the call to McCarthy, asked him to "send me a copy of the contract the way he understood it so we could go ahead and exe- cute it and put it into place."3 Respondent never sent a copy of the contract to the Union. McCarthy, while on the stand, was not asked to address Simmons' testimony that the latter requested a copy of the contract for exe- cution, thus Simmons' account stands as credible and un- contested. While McCarthy did testify that "nothing was said about the. Union accepting the Company's last offer," in this conversation, this is not the same as deny- ing Simmons' express testimony, and parallel-as well as later-events satisfy me that Respondent knew or should have known-in fact could have easily taken steps to find out-that the Union was requesting the contract for execution but decided not to send a copy for reasons dis- cussed below. Thus, McCarthy testified that he dictated the wording on a statement Bond was to-secure employ- ee signatures on to constitute employee "unconditional offers" and those offers, signed by employees contain the Respondent's last offer verbatim on the management- rights clause, as well as referring generally to health and welfare in the existing contract-as was also Respond- ent's last offer, its position on pension, wages, and dis- charge, In short, the record reveals that employees were not just returning to work while negotiations would con- tinue, they were agreeing to the contract offer-the gist in it, if not every other provision-and there was no ob- jection from the Union, a fact consistent with its commu- nicated acceptance of the Respondent's contract. (Jt. Exh. 13.) Later events, when Simmons telephoned McCarthy's office on December 13, again manifest the Union's desire to sign a contract, for, on that date, Sim- mons says he called both Bond seeking a copy of the contract, and later called McCarthy asking him for a copy, being told "they'd send us a copy." McCarthy denies talking to Simmons that day and presented records showing he was out of town, but admitted re- ceiving a message from his secretary stating that Sim- mons had called asking for a copy of Respondent's last offer, while Bond admits that Simmons called asking if he had gotten a copy of the Company's last offer con- tract. McCarthy's only reason, he testified, for not send- ing along a copy of the contract was he believed the Union already had one, and, for his part, Tate testified he was not told the Union had asked for one. I do not see why a party to negotiations which have lopsidedly gone in its favor would not jump at the chance to settle so important a matter by the mere expenditure of effort 9 Employee Jimmy Shadden recalled that Simmons telephoned and told Gary Bond the employees wanted to go back and that "we'd accept the latest final offer " involved in delivering or mailing a copy of the Respond- ent's own last offer contract to the other side, if there was even the slightest suggestion, let alone the substan- tial manifestations to such effect in this case, that such would be accepted, unless a motive to avoid such an agreement entirely fueled Respondent's failure to do so. Moreover, instead of doing what would have been the natural thing were there an interest in the slightest degree to reach an agreement, even on its own terms in all respects, Respondent not only failed to grant the re- quest (or check it out) but also, only 2 days after the Union's latest request to sign the agreement, Respondent filed an RM petition with the Board's Regional Office questioning the Union's very status as the bargaining rep- resentative, and in the present proceeding, denied that the Union was such representative, in its answer to the complaint, without advancing any argument or evidence to support its position, conduct hardly consistent with any intention to enter into an agreement with the Union. Analysis and Conclusions The question whether Respondent engaged in surface bargaining with no intention to reach an agreement with its employees' certified collective-bargaining representa- tive has required a very careful examination into the record evidence within clearly marked guiding param- eters established by Board law before answering. Every exhibit and minute of meetings, all testimony regarding the events in issue, as well as carefully crafted conten- tions on briefs, received thoughtful consideration. It bears repeating at the outset that the Board has been consistent in its adherence to the Supreme Court's early admonition that the Board may not "sit in judgment on the substantive terms of agreements." NLRB v. American National Insurance Co., 343 U.S. 395, 404 (1952). A cor- ollary to this principle is the specific 8(d) provision in the Act that the bargaining obligation imposed by the Act does not require agreement to a proposal or making a concession, but as was stated by later Chief Adminis- trative Law Judge Arthur Leff such provision "may not be used as a protective cloak where bad faith otherwise appears." "M" System, Inc., 129 NLRB 527, 547 (1960). Judge Leff stated further: Good faith, or the want of it, is concerned essen- tially with a state of mind. There is no shortcut to a determination of whether an employer has bar- gained with the requisite good faith the statute com- mands. That determination must be based upon rea- sonable inference drawn from the totality of con- duct evidencing the state of mind with which the employer entered into and participated in the bar- gaining process The employer's state of mind is to be gleaned not only from his conduct at the bar- gaining table, but also from his conduct away from it-for example, conduct reflecting a rejection of the principle of collective bargaining or an underly- ing purpose to bypass or undermine the Union manifests the absence of a genuine desire to com- pose differences and to reach agreement in the manner the Act commands All aspects of the Re- COMMERCIAL CANDY VENDING DIVISION spondent's bargaining and related conduct must be considered in unity, not as separate fragments each to be assessed in isolation . As was stated by Mr. Justice Frankfurter in his separate opinion in NLRB v. Insurance Agents International Union [(Prudential Insurance)], supra, 316 U.S 477 (1960)]. . .. the significance of conduct, itself apparently innocent and evidently insufficient to sustain an unfair labor practice may be altered by imponder- able subleties at work. . . . Activities in isolation may be wholly innocent, lawful and "protected" by the Act, but that ought not to bar the Board from finding if the record justifies it, that the iso- lated parts "are bound together as parts of a single plan [to frustrate agreement]. The plan may make the parts unlawful. The Supreme Court also noted in Insurance Agents, that [T]he Board has been afforded flexibility to deter- mine . . . whether a party's conduct at the bargain- ing table evidences a real desire to come into agree- ment. . . . And specifically we do not mean to question in any way the Board's powers to deter- mine the latter question, drawing inferences from the conduct of the parties as a whole. NLRB v. In- surance Agents (Prudential Insurance), supra at 498. Further, the Court noted at 485. Collective bargaining, then, is not simply an occa- sion for purely formal meetings between manage- ment and labor, while each maintains an attitude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to enter into a collective bar- gaining agreement. More specific , recent exposition concerning the nature of the duty to engage in good-faith bargaining can be found. Thus, it has been stated that, The parties are duty-bound "to enter into discussion with an open and fair mind , and a sincere purpose to find a basis of agreement" (NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir 1960)), to "approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties." Majure v. NLRB, 198 F.2d 735, 739 (5th Cir. 1952) "The es- sential thing," as the Supreme Court in the Insur- ance Agents case quoted with approval from the Board's first annual report, "is . . the serious intent to adjust differences and to reach a accepta- ble common ground."4 It is still further instructive to note that , in the judge's decision from which the foregoing was extracted, cited below in the footnote and adopted by the Board, it was observed with clear support in guiding precedent that, 4 A-1 King Size Sandwiches, 265 NLRB 850 (1982) 919 In NLRB v. Wright Motors, Inc., 603 F.2d 604, 609- 610 (7th Cir 1979), the court stated. Sometimes, especially if the parties are sophisti- cated, the only indicia of bad faith may be the proposals advanced and adhered to. NLRB v. Holmes Tuttle Broadway Ford, Inc., 465 F 2d 717, 719 (9th Cir. 1972), Vanderbilt Products, Inc. v. NLRB, 297 F.2d 833 (2d Cir. 1961); NLRB v. Reed & Prince Manufacturing Co., 205 F.2d 131, 134-135, 139 (1st Cir. 1953), certiorari denied, 346 U.S. 887. . . . The fact that it may be diffi- cult to distinsuish bad faith bargaining from hard bargaining cannot excuse our obligation to do so. The decision went on to note other cases wherein "sur- face bargaining" violations had been found based upon the proposals advanced and adhered to by the parties, in- cluding American Parts System,5 in which the Judge's de- cision, adopted by the Board, included reference to a guiding precedent which stated , inter alia, that "the issue was whether Respondent's approach to bargaining dem- onstrated an unyielding rigidity during negotiations which made collective bargaining a futility."s It is also clearly established therein, and in the A-1 King Size Sand- wich decision (at 857) with still further supporting prece- dent that "unusually harsh and unreasonable proposals" may support a finding of bad-faith bargaining. Guided by the foregoing, I find Respondent's conduct at the bargaining table to manifest an intention to avoid reaching agreement and, while this finding requires no further basis for its support, that Respondent's conduct away from the table tends to clearly reveal further that it had no intention of reaching such an agreement and in- stead, evidences a desire to rid itself of the employees' collective-bargaining representative. The finding is based on a totality of circumstances, as opposed to any one specific factor and in reaching this conclusion , the parties' apparent concessions to each other or agreements in a few areas, such as jury duty, term of contract, funeral leave, safety, and placement or positioning of the clause on discharge, have been taken into account but considered insubstantial compared to the subjects, of far greater import for employees, on which no progress was made. Respondent approached bargaining with the professed intent to impose drastic changes and overhaul the provi- sions in the existing contract , and its desire to do so is not by itself unlawful . Had it attempted to do so in a manner involving the give and take exchange of propos- als standing a chance for approval , or had yielded to re- buffs with counterproposals on primary subject matters evidencing open-mindedness or the slightest desire to reach an agreement, the result in this case might be dif- ferent. The fact that it did not do so even while starting a blunderbuss attack on existing employee rights and benefits long in place connotes a sinister plan or designed strategy to forestall agreement. 5 232 NLRB 41 (1977), A-1 King Size Sandwiches, supra at 859 6American Parts System, supra at 47, citing Borg-Warner Corp, 198 NLRB 726, 729-730 (1972) 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The wage proposal on its face displaced a guaranteed hourly wage and weekly income-also the measuring stick for overtime pay and vacations-which had been cornerstone benefits for years, and was admittedly a base-plus-commission incentive system yielding unknown results, Respondent thereby pushing what was a pig in a poke on employees and union negotiators with no sup- porting data. It was not until this hearing that Respond- ent disclosed a computer printout (R. Exh. 7), purported- ly to demonstrate employee anticipated income, and of course by then it was irrelevant to the concerns of the union negotiators. Even so, the exhibit reflects peak busi- ness period estimated sales, and business could drop below those estimates thereby lowering employee income. Further, under the plan, Bond was to determine what was perishable and nonperishable, which would heavily influence the employee commission, and employ- ee estimates at the hearing-and during the negotiation periods-sharply differed as to the amount of sales per item from that portrayed in Respondent's Exhibit 7, and as to the overall volume of sales. The Union rejected the proposal, and, even though Respondent's Exhibit 7 might have served as a means to ventilate the Union's problems with the wage proposal, since Bond had it available then. Tate failed to produce the exhibit at negotiations as it was not his practice to do so, and McCarthy, on brief, argues Respondent had no duty to do so. Furthermore, Tate made no effort to make the proposal any more attractive say by increasing the commission rate, due to the Union's "disinterest," yet steadily insisted upon the proposal to the conclusion in the parties' negotiations. It is inconceivable that Re- spondent would have foregone the small effort involved in presenting Respondent's Exhibit 7 or its equivalent to explain, justify, sell, or enhance the prospect of the Union accepting the wage proposal, a radical departure from the employees' established wage system, unless it harbored no desire for its acceptance. Tate even admit- ted he was unfamiliar with the employees' working hours at this hearing and Bond merely replied he had not furnished Respondent's Exhibit 7 because the Union had not asked for it. Such lack of concern for whether or not its drastic proposal on a subject of overriding importance to the question whether a contract would ever be reached evidences an indifference ill-conducive to mean- ingful negotiations, as there was no claim of economic necessity. In fact, Tate made it clear no such claim was being advanced, yet the Union made it clear that it per- ceived the proposal as imposing losses on employees in reduced business periods in the form of lesser income and reduced vacations (not to mention reduced overtime and call-in pay). In sum, I cannot accept that Respondent in good faith believed the Union could agree to such a proposal, "at least in the absence of any supported claim of economic necessity." United Contractors, 244 NLRB 72, 73 (1979). Moreover, the prospects for increased income were purely speculative, making Respondent's proposal lacking in generosity and reality-deficiencies deemed relevant in assessing the bona fides in employer wage proposals. K Mart Corp., 242 NLRB 855 (1979). Respondent also insisted unyieldingly on virtually gut- ting employee seniority rights out of the contract as de- scribed above. On brief, Respondent claims there was an absence of concern by the Union inasmuch as the only employee witness at this hearing had no problem with the proposal. The witness in fact described concern for another older fellow employee who could, under Re- spondent's proposal, be simply discharged upon cessation of his route absent his former seniority rights, and Re- spondent's position misses the mark further for the Union at negotiations opposed such a proposal directed, once again, at the destruction of a fundamental employee pro- tection, arguing that the Respondent had no compelling reason to eliminate seniority as "a route driver was a route driver." Again, an instance arises where, with no persuasive reasons rooted to economic or operational ex- igencies being advanced, Respondent moved to cut away another fundamental right from the core of employees' long-established working conditions and never pulled back from such effort, instead arguing later before me that the Union has a kind of burden of proof to show concern and the reason for its concern over a proposal seeking to overthrow important values to employees- obvious on its face. Respondent's proposed management-rights clause, set forth above, left the Union and employees very few of their former rights in the workplace free from challenge or the Company's sole control. Its unprecedented scope and grants of power are similar to the contents in clauses involved in cases wherein the employer was found to have unlawfully insisted upon their inclusion in a collec- tive-bargaining agreement. S-B Mfg. Co., 270 NLRB 485 (1984); K-Mart Corp., supra at 863; American Parts System, supra at 47; and Hospitality Motor Inn, 249 NLRB 1036 (1980). The clause conferred these powerful rights, including the power to exercise control over hours, work rules, shifts, demotion, transfer, efficiency of employees, workload, relocating, sale of the business, and a host of other matters, but also the right to subcon- tract work when necessary with only the vaguely worded qualification that those rights shall not be used to "avoid" other provisions in the agreement, a fragile and unreassuring window-dressing-like verbiage against exercise of the enumerated and implied authority accord- ed otherwise unreservedly and exclusively to the Compa- ny. Tate not only refused to accept a union counterpro- posed clause reasonably comparable to Respondent's, but failed to explain why, stating he did not see anything wrong, "with ours," a further similarity to the employ- er's bargaining conduct found unlawful in the cited K- Mart case above (p. 863), as well as further indicating a "take it or leave it" bad-faith mindset since such conduct prohibited any attempt "to find a common ground upon which he and the Union could resolve their differences." Hudson Chemical Co., 258 NLRB 152, 155 (1981). I find that Tate knew, should have know, and, in fact found out quickly, that the Union would not accept the propos- al and that he did not even advance it as a basis for fur- ther discussion, as shown by his curt rejection of the Union's counterproposal-all indicating when combined with his immovable stance against any modifications thereto through the end in negotiations, an absence of COMMERCIAL CANDY VENDING DIVISION good-faith bargaining on his part.7 NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir. 1953), cert. denied 346 U.S. 887. These foregoing proposals obviously would create storm clouds on the horizon within the view or reasona- ble contemplation of Tate, a seasoned labor relations lawyer, yet to them he added a proposal to wipe out the employees' existing pension plan, in its present form alto- gether without the slightest apparent concern over whether that might not be a better subject for another time-given the drastic cutbacks and troubling proposals he had already put in the works. Nor did he even follow another available tactic, for example, only yielding on the proposed elimination, or phasing in parts of the new plan contingent upon the local union securing approval from higher union levels to withdraw from the existing plan-the variations, if one desired to seek such goal as part of a negotiated agreement or an accommodation clearing the way for negotiations and agreement in other areas-are numerous though the key element, a sincere desire and open-mindedness towards reaching an agree- ment remains the same. Instead, Respondent did not budge an inch.8 Tate, whatever substantial reasons he had to believe it would be a good idea to get his client out of the pension plan then in place-and the Union contradicted one such reason emphasized by Respondent, viz. The alleged unfunded contingent liability, still bore the responsibility not to press unyieldingly on so many fronts that to a reasonable observer, no agreement by the Union could be expected, yet he pushed this matter with the others without stopping or modifying or trading it off in exchange, again manifesting a take-it-or-leave-it at- titude and disinterest in reaching any accommodation. Respondent's proposals and responses in other respects are described above and reflect either withdrawals of ex- isting benefits-the lunch period, the restriction against being required to report for work within 8 hours of a completed work shift, the workweek definition, Monday through Friday, the reduction in holiday pay entitlement when an employee is sick, the reduction in overtime pay as such was to be based upon a fixed base lower by far than the existing hourly wage rate, the loss of holidays to employees until they served 120 rather 30 days proba- tionary period, the loss of employee protection against supervisors doing unit work, the loss of protection against discharge for refusing to cross a picket line, or the rejection of union proposals, outlined above, and im- position by contract of unlimited unscheduled polygraph tests. Respondent's proposals were, insofar as any im- ' Absent a context being available concerning the surrounding circum- stances, I am not inclined to accord significance to the proffer of evi- dence as to two other contracts with another Teamsters Union in another state which contain such management-nghts clause, a fact, even if such context were submitted, which would not justify Tate's insistence on the clause after it did become obvious the Union would oppose it in the form advanced by him 8 Bond testified to a prenegotiation period comment by an employee to the effect he would like an IRA plan in apparent support for the propos- al This was not mentioned at the negotiations and such could hardly fuel any reasonable anticipation by a seasoned negotiator, such as Tate, that the Union would agree to a wholesale revamping and withdrawal from a long-established nationwide pension fund plan for an untried competing plan in a blink of an eye 921 provement in employee benefits are concerned, relatively minor, meager, speculative or uncertain, and, in the eyes of the union organizers, regressive, factors militating against any good-faith intention on Tate's part to reach an agreement. Carpenters Local 1780, supra. Finally, as noted above, Tate obfuscated matters by first stating that the Company would use its proposal to eliminate the union-security clause as a bargaining chip, but then launching into a counterproductive harangue designed to energize the parties into argumentation and heated dispute, rather than negotiations. It is well settled that, While the Act does not require that an employer grant a union's bargaining proposals for union-secu- rity and dues-checkoff provisions, the assertion of "philosophical" objections does not satisfy the statu- tory obligation to bargain in good faith concerning these matters. Sweeney & Co. v. NLRB, 437 F.2d 1127, 1134-35 (5th Cir. 1971), enfg. 176 NLRB 208, 211-212 (1969) 9 To make matters worse from the viewpoint of the par- ties reaching an agreement, Respondent thereafter, in strings-attached bargaining tactics, told the union repre- sentatives it would agree to union security if all other matters were agreed upon, but when proferring its final offer in the form of a contract ready for execution to the Union, eliminated the existing checkoff provision, Tate testifying at the hearing that this was an oversight, an as- sertion I cannot rely upon for two reasons- one, because that contract proposal was the Respondent's final offer insofar as the Union knew-and it eliminated checkoff; and two, I cannot believe that so experienced and thor- ough an expert in labor relations as Attorney Tate, would be this careless-he was much too painstakingly, even assidiously careful, in preparing all other proposals in a very exacting, precise manner. I conclude therefore that regarding all the foregoing, Respondent rigidly adhered to predictably unacceptable proposals thereby indicating a "predetermination not to reach agreement, or a desire to produce a stalemate, in order to frustrate bargaining and undermine the statutory representative." Tomco Communications, 220 NLRB 636 (1975); and Rockingham Machine-Lunex Co. v. NLRB, 665 F.2d 303 (8th Cir. 1981), Marriott Corp, 258 NLRB 755 (1981), and cases cited above. In reaching this conclusion as to Respondent's overall lack of good-faith bargaining, I have reviewed as well the Union's conduct and find examples when it yielded- several times on its wage position-on pension benefits, on grievance language, on Saturday premium pay, on an extra holiday proposal, its proposed change in sick leave, uniform allowances, health and welfare, and showed flexibility by making a counterproposal of a new man- agement-rights clause reasonably close to Respondent's rigidly adhered to proposed on that subject, and at the end, proposing a fourth reduction in its wage proposal to only a small increase in wages, and continuation of exist- ing contract provisions-all providing no reason for Re- 9 Hospitality Motor Inn, supra at 1040 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent's obdurate posture, including its take-it-or-leave it position regarding the Company's final offer on the last day in negotiations. 10 I have already noted above the independent violations of Section 8(a)(1) consisting of threats and promises, in- volving attempts at direct dealings with employees cal- culated to undermine their representative during contract negotiations, and which tend to confirm the fmding above that Respondent engaged in surface bargaining in violation of Section 8(a)(5) of the Act. It is clear, and I find, that such conduct entirely, if not substantially, caused the strike on October 18, which lasted until November 8, and that therefore, when Re- spondent on that date refused the employees' uncondi- tional offers to return to work, but rather stated they would be placed on preferential lists (and continued to refuse to reinstate them thereafter), Respondent, by re- fusing to immediately reinstate the unfair labor practice strikers, violated Section 8(a)(3) and (1) of the Act. Car- penters Local 1780, supra at 281, citing Dubo Mfg. Corp., 148 NLRB 1073 (1964), enfd. 353 F.2d 157 (6th Cir. 1965); and National Fresh Fruit & Vegetable Co., 227 NLRB 2014 (1977); C & E Stores, 221 NLRB 1321, 1322 (1976). There is no disputing that the Union conveyed the four employees' desires to abandon the strike and return to work, to both Bond and McCarthy, a decision they, the employees, had reached in a vote at Simmons' office on November 8, In fact, three of the employees, Jimmy Shadden, Donald Craig, and Brian Sampson-it is agreed-even signed offers prepared by Respondent wherein they, the employees, agreed to return under conditions solely imposed by Respondent, described above (Jt. Exh. 13), that same day. Regarding the fourth, Jimmy Harrigan, it is undenied that his abandonment of the strike and offer to return to work was conveyed to Respondent along with the others by the Union the same day, and it is clear from Respondent's letter to Samp- son-also the same day-that it would have been futile for Harrigan to have made any further offer to return to work. Thus, McCarthy's letter stated, in response to Sim- mons' call, "However, in that permanent employees have been hired for all striking employees there is at the present time, no job openings for a striking employee to return to." (R. Exh. 8.) Under such circumstances, I find that employee Jimmy Harrigan, as well as the other three discharged unfair labor practice strikers, are enti- tled to reinstatement and backpay. See generally Blu- Fountain Manor, 270 NLRB 199 (1984), and, for the principle that the Board does not require the employee to engage in a futile act, see, e.g., Macomb Block & Supply, 223 NLRB 1285, 1286 (1976); Mason City Dressed Beef, 231 NLRI3 735, 747-748, and fn. 3 (1977); Alexan- der's Restaurant & Lounge, 228 NLRB 165, 179 (1977); and Penzel Construction Co., 185 NLRB 544 (1970). CONCLUSIONS OF LAW 1. K-B Resources Ltd., Inc., d/b/a Commercial Candy Vending Division is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Department Stores, Package, Grocery, Paperhouse, Liquor and Meat Drivers , Helpers and Warehousemen, Local Union No. 955 , affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and' Relpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Since on or about July 15, 1975, the Union has been the exclusive representative for the purposes of collec- tive bargaining of the employees in the following unit: All full-time and regular part -time vending route salesmen employed by the Respondent at the facili- ty, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 4. By refusing to bargain in good faith with the Union as the exclusive representative of the employees in the above-described unit, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By denying striking employees Jimmy Shadden, Donald Craig, Brian Sampson, and Jimmy Harrigan rein- statement on November 8, 1982, upon their uncondition- al application, because of their union and concerted ac- tivities, Respondent discriminated against them to dis- courage membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. 6. By engaging in the following conduct, Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act: (a) Telling employees they could get a better deal by going to Respondent's owner directly than with the Union. (b) Telling employees that Respondent's owner is not going to sign any more contracts. (c) Informing employees they would be better off without the Union. 7. Respondent did not threaten employees with repris- als because they requested a supervisor discontinue per- forming bargaining unit work. 8. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 10 Respondent's failure to send a copy of its final contract offer to the Union when such was reasonably called for had it harbored any intention to reach any agreement with the Union , its filing of an RM petition 2 days after the last day in bargaining by which an election was sought as to the continuing status of the Union as Respondent's employee repre- sentative-viewed in combination with Respondent's answer, unsuppor- tedly denying the Union's status as bargaining representative , have al- ready been noted above and are entirely consistent with the finding herein as to Respondent's intentions Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall order that it cease therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. As I have found that Respondent has unlawfully failed or refused to reinstate unfair labor practice strikers Jimmy Shadden, Donald Craig, Brian Sampson, and COMMERCIAL CANDY VENDING DIVISION 923 Jimmy Harrigan, I shall order that Respondent offer the four above-named individuals immediate reinstatement to their former positions or, if such jobs no longer exist, to substantially equivalent positions , without loss of seniori- ty and other rights and privileges previously enjoyed, discharging if necessary , any replacements hired I shall further order that Respondent make Jimmy Shadden, Donald Craig, Brian Sampson, and Jimmy Harrigan whole for any loss of earnings or other benefits they have suffered as a result of the discrimination against them from the date Respondent unlawfully refused to re- instate them to the date of Respondent's offer of rein- statement, in accordance with the Board's formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).11 I shall order that Respondent preserve and make avail- able to the Board or its agents, upon request, all perti- nent records and data necessary to determine the amount of backpay due, and I shall order Respondent to post ap- propriate notices. Finally, since Respondent has engaged in unfair labor practices of a sufficiently egregious nature as to demonstrate a disregard for its employees' funda- mental statutory rights, I shall order Respondent to cease and desist from in any other manner infringing upon the rights guaranteed to its employees by Section 7 of the Act.12 [Recommended Order omitted from publication.] 11 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 12 See Hickmott Foods, 242 NLRB 1357 (1979)