Overnite Transportation Co.

OVERNITE TRANSPORTATION CO. Overnite Transportation Company and Truck Driv- ers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO.' Case 13-CA-22606 September 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On February 1, 1984, Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief; the Charging Party filed exceptions; and the Gen- eral Counsel filed a brief in response to the Re- spondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions as modi- fied and to adopt the recommended Order as modi- fied.3 1. The judge found that the Respondent violated Section 8(a)(1) of the Act by making threatening statements in preelection speeches to employees in April and June 1982 and in a preelection campaign letter to employees dated June 9 , 1982.4 We agree with the judge, for the reasons set forth below, that the Respondent violated Section 8(a)(1) by making certain threats. We disagree with the judge's find- ing, however, that the Respondent's statements concerning a loss of access to management in the event of unionization were unlawful. Initially, we agree with the judge that the 8(a)(1) allegations of coercive speech and conduct set forth in the amended complaint are closely related to the 8(a)(5) allegations of the timely filed charge ' 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. ' We shall amend the judge's Conclusions of Law and modify his rec- ommended Order in accordance with our finding below that the Re- spondent did not violate Sec 8(a)(1) by threatening employees with a loss of their rights to bring grievances to the attention of management in the event of unionization. 4 The judge further found, and we agree, that the Respondent violated Sec. 8(a)(I) by coercively interrogating employees in August 1982, after the Union was certified 669 and, therefore, are not barred by Section 10(b) of the Act (supra at 687 fn. 16). The original charge, which was filed on October 4, 1982, alleged, in substance, that the Respondent failed to discharge its obligations under Section 8(a)(5) and (1) of the Act. On December 1, 1982, the Regional Director issued a complaint alleging that the Respondent had refused to bargain in good faith with the Union. On July 21 , 1983, the Regional Director amended the complaint to allege the independent violations of Section 8(a)(1). As found by the judge, the alleged 8(a)(1) conduct occurred within the 6-month period preceding the filing of the charge. 5 Applying the "closely related" test set out in the Board's decision in Redd-I, Inc., 290 NLRB 1115 (1988), we find that although they are not based on the same section of the Act, the untimely 8(a)(1) al- legations and the timely bargaining allegations are based on the same legal theory , i.e., the Respond- ent's efforts to resist unionization. See Whitewood Maintenance Co., 292 NLRB 1159 (1989). Further, we find that the 8(a)(1) and (5) allegations are part of the same factual situation or sequence of events. The alleged 8(a)(1) violations essentially consist of statements in which the Respondent threatened to act as it actually was alleged to have acted in the 8(a)(5) charge filed against it, i.e., that it would not bargain in good faith to reach a contract even if the Union were certified . Thus, the Respondent's alleged bad faith at the bargaining table was a con- tinuation and manifestation of its alleged coercive statements and interrogations concerning the futili- ty of unionization and the Respondent 's desire to avoid signing a contract. Finally, to the extent that a party's conduct away from the bargaining table is relevant to a determination of good faith while en- gaged in bargaining, it is clear that the Respondent would raise some of the same defenses to the 8(a)(1) and (5) allegations. Accordingly, we con- clude that the 8(a)(1) amended complaint allega- tions are closely related to the allegations in the timely charge and, therefore, are not time -barred. The judge, crediting the testimony of employee witnesses, found that the Respondent 's vice presi- dent, Bobby Edwards, made numerous statements that went beyond the prepared text of his preelec- tion speeches. 6 We find that these extemporaneous statements, together with those statements from the prepared text that are specifically set forth below, s The judge found that the earliest date on which the Respondent's first preelection speech could have been given was April 7, 1982, a date that is within the 6-month period preceding October 4, 1982. 6 The extemporaneous statements are set forth in full in the judge's de- cision 296 NLRB No. 77 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD constitute unlawful threats in violation of Section 8(a)(1). In going beyond the text of the speeches, Ed- wards referred to specific transportation companies that had closed after becoming unionized . Edwards then stated that the Respondent would close its doors if its employees voted for the Union and, therefore, that a vote for the Union would mean a loss of jobs. The Board has held that such state- ments equate unionization with unprofitability , loss of jobs, and business closing-not on the basis of objective fact or probable consequences beyond the Respondent 's control, but rather as calculated threats during the course of an in- tense antiunion campaign . [ White Plains Lin- coln Mercury, 288 NLRB 1133, 1135 (1988).] We therefore find that Edwards' statements unlaw- fully threatened that the employees would lose their jobs if they selected the Union as their collec- tive-bargaining representative. See also Koons Ford of Annapolis, 282 NLRB 506, 519 (1986), enfd. mem. 833 F.2d 310 (4th Cir. 1987); Arkansas Light- house for the Blind, 284 NLRB 1214 (1987), enf. denied on other grounds 851 F.2d 180 (8th Cir. 1988). In a similar vein, reading from the prepared text of his June speech, Edwards stated to the employ- ees: In all of this, there is a fundamental question which you should carry in your mind-"What is it that you may expect if this union were to get in here?" The answer-and you should not ignore it or overlook it-the answer is Trouble! That is what this union has brought else- where-strikes, lost work, lost pay, lost jobs, debt and regret-bitterness and misery. Do you see any good reason to risk all of that here? .. . If the union were to get in here, it would necessarily force us-I repeat , force us-to switch completely in our attitude about our employees. We could no longer afford to say, "How much in the way of improvements in wages and benefits can we afford to give our people?" The new attitude necessarily forced upon us would be, "How little can we get by with giving these employees who are repre- sented by this union?" The Board has found that such statements equating unionization with dire consequences, without refer- ence to collective bargaining or to the give-and- take of the bargaining process, are unlawful. See Koons Ford of Annapolis, above, 282 NLRB at 521. In other extemporaneous remarks made during the two preelection speeches , Edwards also in- formed the assembled employees that they would not have a better job or wages through a union guarantee because the Company was not and never would be unionized and would resist any union pressure. Edwards further asserted that the Re- spondent would not sign a contract and, more spe- cifically, that he would never deal with or sign a contract with the Teamsters. Additionally, at the June meeting, Edwards read the following state- ments from the text of his speech: The Union could not force this Company to do anything that it does not consider to be rea- sonable or practical. . . . The Union can try to bring pressure on the company by pulling you out on strike . I do not want to sound abrupt on this matter, but I think that it is one of the utmost importance that you understand this while there is yet time-Overnite Transporta- tion Company has no intention of yielding to any sort of strike pressure by this union, either now or at any time hereafter.. . . I think you should know, however , that if the Union were to get in here and call people out on strike, the company definitely would hire replacements for the strikers in order to keep this terminal in operations . With unem- ployment as high as it is, I have no doubt that plenty of people would be glad to come in here and work despite a teamsters strike.' Edwards' statements were not mitigated by assur- ances that strikes are not inevitable or that the Re- spondent would bargain in good faith if the em- ployees selected the Union as their representative. See Arkansas Lighthouse for the Blind, above. As- sessing the coercive impact of the statements as a whole, we find that Edwards' statements that the Respondent would not deal with or sign a contract with the Union constitute an unlawful threat to bargain in bad faith so as to prevent an agreement and force a strike. Cf. Neo-Life Co. of America, 273 NLRB 72 (1984) (Board inferred from the respond- ent's statements that it did not "want to" or "have to" sign a contract, that it would not sign a con- tract, and therefore found that the respondent threatened to bargain in bad faith ). Moreover, the fact that Edwards, a high-ranking official of the Respondent, informed the employees that in the event of such a strike, which the Board would find to be an unfair labor practice strike, the Respond- ent would hire strike replacements , intensifies the 7 The Respondent made similar assertions during the April meeting and in the June letter to employees OVERNITE TRANSPORTATION CO. 671 coercive impact of the statements and is, in effect, a veiled threat of discharge . Kona 60 Minute Photo, 277 NLRB 867, 868-869 (1985). For these reasons, we find that the above statements unlawfully threatened that the employees' efforts to organize would be "an exercise in futility." Kona 60 Minute Photo, above at 869. The judge further found that the Respondent, by Edwards' prepared speeches and the June 9 letter to employees, violated Section 8(a)(1) by threaten- ing employees with the loss of their right to bring grievances to the attention of management if they became unionized . In this regard, the Respondent informed its employees "that a direct relationship between a company and its employees serves the best interests of both-and that a union, in the long run, undermines that relationship, and builds a bar- rier between the company and its employees"; "when a union gets into a company a very differ- ent relationship begins to arise between manage- ment and the people who are handling freight.. . . [T]hings can no longer be solved personally by management and working people cooperating to- gether"; and "if this Union were to get in , this free- dom and this right (to come in and settle with us personally any problems you may have). . . . would definitely be taken away from you and placed in the hands of the Union." We disagree with the judge's finding that these statements are unlawful. Pursuant to the Board's decision in Tri- Cast, Inc., 274 NLRB 377 (1985), statements such as these concerning loss of access to management in the event of unionization do not constitute threats, but "simply explicates one of the changes which occur between employers and employees when a statutory representative is selected." See also Koons Ford of Annapolis, above, 282 NLRB at 506. Accordingly, we shall dismiss this allegation of the complaint. 2. The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and re- fusing to bargain in good faith with the Union fol- lowing its certification on June 25, 1982, as the em- ployees' collective-bargaining representative. We agree with the judge's conclusion for the following reasons. In determining whether a party has bargained in bad faith, the Board looks to the totality of the cir- cumstances in which the bargaining took place. At- lanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). Further, the Board looks not only at the parties' behavior at the bargaining table, but also to their conduct away from the table as bearing on a party's good faith while engaged in bargaining, Port Plastics, 279 NLRB 362, 382 ( 1986). As dis- cussed above, Edwards, the Respondent's vice president and a participant in the contract negotia- tions, made a series of unlawful statements in his April and June speeches that reflected an attitude contrary to good-faith bargaining. Specifically, Ed- wards threatened the employees with plant closure and loss of jobs if they selected the Union , equated unionization with dire consequences, stated that the Respondent would not sign a contract , and threat- ened to bargain in bad faith to force a strike. These unlawful statements, unmitigated by any assurances that the Respondent would bargain in good faith, established the context in which the Respondent and the Union commenced negotiations on July 27, 1982. Further, these threats that unionization would be futile-including Edwards' statement that unioniza- tion would force the Respondent to ask how little it could get by with giving the employees-color and explain the Respondent's motivation and con- duct at the bargaining table. Port Plastics, above at 382. As found by the judge, the Respondent re- fused to agree to almost every major economic and noneconomic proposal set forth by the Union on the grounds that it did not plan or desire to depart from existing company policies . In fact, despite sig- nificant concessions by the Union, the Respondent during the course of the six bargaining sessions proposed or agreed to only two items that were not consistent with existing company policies-an alcohol rehabilitation plan and limited arbitration. Regarding the latter provision, the Respondent's proposal would allow either party to prevent arbi- tration, with the Union having the right to strike- and the Respondent the corresponding right to hire replacements-in the event of a deadlock concern- ing individual grievances. Under all the circum- stances, we find that the Respondent's mind was closed to the possibility of change, notwithstanding its self-serving assertions that it would listen to the Union's proposals and change its mind if "con- vinced." See A-1 King Size Sandwiches, 265 NLRB 850, 859 (1982), enfd. 732 F.2d 872 (11th Cir. 1984). Accordingly, we agree with the judge that the totality of the Respondent's conduct, prior to and throughout the course of negotiations , estab- lishes that the Respondent bargained in bad faith. In so finding, we do not suggest that the Respond- ent was required to offer the Union whatever the Union wanted or that any particular proposal of the Respondent can be condemned as per se unlaw- ful. Rather, we conclude, on the basis of all the Re- spondent's conduct, that it was bent on behaving as its managers had earlier threatened and that it was not constructively approaching the collective-bar- gaining process with an aim of reaching agreement with the Union. 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4. "4. Respondent Company violated Section 8(a)(1) of the Act by stating to employees, during the Union's organizational drive, that it would never sign a union contract; threatening employees that it would close its terminal before becoming unionized; threatening employees with loss of jobs if they became unionized; threatening employees that it would go out of business if they became unionized; threatening employees with other repris- als if they became unionized; and, later, coercively interrogating employees about their protected union activities and interests." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Overnice Transportation Company, Bed- ford Park, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Telling its employees that it will never sign a union contract and threatening its employees with loss of jobs, terminal closing, going out of business, and related reprisals if they became union- ized." 2. Substitute the attached notice for that of the administrative law judge. 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 tell our employees that we will never sign a union contract. WE WILL NOT threaten our employees with loss of jobs, terminal closing, going out of business, and related reprisals if they become unionized. WE WILL NOT coercively interrogate our em- ployees about their protected union activities. WE WILL NOT refuse to bargain collectively and in good faith concerning rates of pay , hours of em- ployment, and other terms and conditions of em- ployment with Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bargaining representa- tive of our employees in the following appropriate unit: All local drivers employed by us at our facility now located at 7526 South State Road, Bed- ford Park, Illinois, but excluding all office clerical employees, guards and supervisors as defined in the Act, and all other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively and in good faith concerning rates of pay, hours of em- ployment, and other terms and conditions of em- ployment with the above-named Union as the ex- clusive bargaining representative of our employees in the bargaining unit set forth above and embody any understanding reached in a signed agreement. OVERNITE TRANSPORTATION COMPANY Jacalyn J. Zimmerman, Esq., for the General Counsel. Ernest W. Machen Jr. and John O. Pollard, Esgs., for the Respondent Employer. Sheldon M. Charone, Esq., for the Charging Party Union. DECISION FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in the above case on October 4, and an amended charge was filed on No- vember 2, 1982. A complaint issued on December 1, 1982, and an amended complaint issued on July 21, 1983. A hearing was conducted in Chicago , Illinois, on Sep- tember 26 and 27, 1983. The General Counsel alleges that Respondent Employer violated Section 8(a)(1) of the National Labor Relations Act by, inter alia, stating to employees, during the Union's organizational drive, that it would never sign a union contract ; threatening em- ployees that it would close its terminal before becoming unionized; threatening employees with loss of jobs if they became unionized ; threatening employees with loss of their right to bring grievances to the attention of man- agement if they became unionized ; threatening employ- ees that it would go out of business if they became unionized; threatening employees with other reprisals if they became unionized ; and, later, coercively interrogat- ing employees about their protected union activities and interests. The General Counsel further alleges that Re- spondent Employer, following certification of the Union as the bargaining agent of an appropriate unit of its em- ployees, failed and refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act, by, inter alia, refusing to consider union security and dues-checkoff proposals in any form; refusing to consider wage proposals in excess of wages paid uni- formly throughout the Employer's business to its unrep- resented employees; refusing to consider mandatory arbi- OVERNITE TRANSPORTATION CO. 673 tration of grievance proposals ; refusing to consider any significant variations from existing terms and conditions of employment; and its "overall acts and conduct" during the bargaining sessions and meetings of the par- ties. Respondent Employer denies that it has violated the Act as alleged and, in addition , argues that no charge had been filed against the Employer pertaining to certain coercive conduct alleged to be unlawful in the amended complaint and, therefore, the Board is without authority to proceed on such issues . Respondent Employer similar- ly contends that these issues are also barred by the 6- month time limitation contained in Section 10(b) of the Act. On the entire record in this proceeding , including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel, I make the following FINDINGS OF FACT Respondent is an employer engaged in commerce as alleged. The Union is a labor organization as alleged. On June 25, 1982, following a Board-conducted representa- tion election, the Union was certified as the exclusive bargaining agent of Respondent's employees, in the fol- lowing appropriate unit: All local drivers employed by Respondent at its fa- cility now located at 7526 South State Road, Bed- ford Park, Illinois, but excluding all office clerical employees, guards and supervisors as defined in the Act, and all other employees. The testimony and related documentary evidence of record pertaining to Respondent's alleged coercive con- duct and refusal to bargain in good faith are summarized below. The Employer's Conduct and Statements to Employees During the Union's Organizational Campaign; the Employer's Interrogation of Employees Following the Election Bruce Roberts, employed by Respondent as a truck- driver since June 1981 , testified that he attended a meet- ing at Giorgio's Restaurant during mid-April 1982, and that "all of the city drivers" were present, as well as Re- spondent's terminal manager, Ed Sheehan , Company Vice President Bobby Edwards , President A. W. Duke, and Board Chairman J. Harwood Cochrane. Roberts re- called that Terminal Manager Sheehan "opened the meeting and then turned it over to Mr . Edwards." Ac- cording to Roberts, ... Mr. Edwards basically told us [the assem- bled drivers] that if we were to join a Union that we would not foresee any better benefits because of a Union. We would not have a better job, a better wage or anything through a Union guarantee, be- cause the Company was not Union, would never be Union and never had any intentions to be Union. And, regardless of where we were or what we did, the Company would resist any Union pressure. He also stated that we should think seriously about what we have now and what we would have with a Union contract. Would it be better for us to remain Company orientated or to let the Union get into the Company , which would not guarantee us having a better position or a better job or anything. He stated that other companies that are Union have been going by the wayside, have been folding up, and would we want that to happen at our Com- pany. Once again he stated that to think very hard before we made any decision for the Union whatso- ever. To think of our families and of our jobs. He said that absolutely they would not sign a contract with any Union. Roberts further testified that about June 1982, shortly before the Board-conducted representation election, he attended another such meeting; this one was held at the Oak Lawn Holiday Inn. There, Terminal Manager Shee- han "announced that Lynn Johnson was going to be our new terminal manager." Johnson said "a few words," and "turned the podium over to Mr. Edwards." Vice President Edwards addressed the employees and, later, Board Chairman Cochrane spoke to the employees. Ac- cording to Roberts, Mr. Cochrane said very little in essence, but he did say he would like to tell us a little story . That back in 1940 he had held a Union card himself. And that in 1943 the Union had come to him and told him to discharge one of his employees, and he out and out refused . . . and at that point gave up his Union status . . . . And he asked us to please save our jobs and his job too by not joining a Union. On cross-examination, Roberts acknowledged that Ed- wards, during his speech in April, "was looking down at the podium . . . . I [Roberts] don't know if he was read- ing. He didn't have anything in his hand . He was looking down at the podium though, glancing up and down like he may have been reading from a prepared statement." Roberts added that Edwards, at the second such meet- ing, did the "same thing," "looking up and down at the podium." However, Roberts insisted that Cochrane, during his speech, "never once looked down"; "he was looking straight ahead."' James Phillips, employed by Respondent as a city truckdriver from early February until about August 20, 1982, testified that he too was present at the meeting in ' It was stipulated by all counsel that G.C Exh 7 "contains remarks made by certain of Respondent's" officers and supervisors during the pre- election campaign , including Johnson, Cochrane and Edwards See Tr p 29 and G.C. Exh 7. Counsel for the General Counsel further explained: .. the parties are not in agreement on the actual date [of the speech] in June 1982, and I don't believe it is critical . But the remarks were made-these remarks were made. . . [I]t is the position of General Counsel that these speakers may have made additional statements, but the parties are in agreement that these remarks were made on the date in June 1982 " (Ibid) The typewritten text of these remarks or speeches, as recited in G.C. Exh 7, as well as the text of a letter sent to the employ- ees, dated June 9, 1982 (G C Exh 6), stating the Employer's opposition to the Union , will be discussed below 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Giorgio's Restaurant during April 1982. Phillips recalled vice president Edwards' speech to the assembled em- ployees, as follows: ... [He, Edwards,] talked about the Union. He was not going to sign a contract . He would do ev- erything in his extreme power to keep the Union out of the Chicago system . That the Union has been fighting Overnite for many years to organize and this is not going to happen. That we were more or less better off not having . . . a Union. And he also said, with the Union men . . . that the salary is $13 an hour, and if we thought at Overnite that we were going to get $13 an hour, we were crazy. [At] the end he . . . more or less . . . says for your own good vote no. .. . Phillips further testified that he attended another such meeting at the Holiday Inn in Oak Lawn. There, Board Chairman Cochrane stated to the assembled employees: We at Overnite is more or less like a working family. We don't need a Union to solve our griev- ances and problems. And that if we go Union, more or less, there would be people that he would have to lay off. And, then, you know, it may even come to a point where he would have to close the termi- nal. And he says, do yourself a favor, and mine, save your job and save my job. Vote no at the elec- tion. On cross-examination, Phillips acknowledged that Ed- wards, during his speech, "was reading" "on and off"; he "was reading from this paper"; "and then in some spots he wasn't." Phillips acknowledged that Cochrane was also "looking down at the paper he was reading"; "it was more or less on and off" ; and "maybe he entered a few of his own words going with his speech , I don't know." Phillips further acknowledged that he had been "discharged" by the Employer. Carlos Garcia, employed by Respondent as a truck- driver for about a year and a half, also attended the meeting at Giorgio's Restaurant. He testified that "all the employees of Overnite were there"; and that Edwards stated to the assembled employees: ... this Company has never been Union and never will be Union , and that he would never deal or sign a contract with the Teamsters. And, he said other companies . . . that did bring the Union in have closed-a lot of those companies have closed their doors. And he said to us, I am sure that you drivers don't want that to happen. And, he mentioned the reputation of the Team- sters Union . . . the bad reputation . . . scandal ridden and stuff like this. And he said we could not benefit . . . by having a Union here. Garcia also attended the meeting at the Holiday Inn in Oak Lawn. He recalled that Cochrane related how the Union had "asked him" "around the second World War" "to fire a driver and he refused ... he would never deal with a Union again." On cross-examination , Garcia acknowledged that Ed- wards, during his speech, "was turning sheets" at the "podium." Garcia, when asked whether Cochrane used notes, responded : "I don't believe, sir. I was in the back of the restaurant and it was like a long narrow room. ... Really, I couldn't . . . say." Gonzalo Mendoza, employed by Respondent as a pickup and delivery driver for about 19 months, recalled Edwards telling the assembled employees at Giorgio's Restaurant: he [Edwards] was going to close the doors. The Company was going to close the doors if we voted for the Union. . . . And that the Company would not sign a contract or have anything else to do with the Union. Mendoza recalled Cochrane telling the assembled em- ployees at another such meeting "about some past experi- ence," and "to save our jobs, not to vote for the Union- .. if we voted for the Union it would be just about a loss of our jobs."z In addition, employee Mendoza further testified that later, during August 1982 , he had the following conver- sation with company dispatcher Mike Sorice: That took place out in the parking lot. On our way to-well I [Mendoza] start at 8:30. And it was about ten after, quarter after. And at that time, Mike pulled up along side of me and we both parked our cars. We got out and he asked me what do I think about the situation . I told him the Union was going to get in, and he says no way possible. That Mr. Cochrane would not sign a Union contract. And we debated the subject and I says, sooner or later we would get the Union in for the simple reason the man is misrepresenting, and he got too many bad labor practices against him already. And Mike came back, and he says, that regardless of the situation, that he was still going to . . . fight the Union as long as he can ....3 Bernard Thelan, employed by Respondent from Octo- ber 1, 1981 , until his termination on January 7, 1983, tes- tified that Edwards stated to the assembled employees at Giorgio's Restaurant: we would never be making Union scale . . . it would put a lot of men out of work . . . if he had to he would close down the terminal before turning Union . . . he would not sign a contract . . . he Y On cross-examination , Mendoza could not recall "who else spoke be- sides Edwards" at the "first meeting," or "anything they said " Mendoza added that Edwards also spoke at the "second meeting," and "he repeat- ed himself just about the same as the first one -"1 think he kept looking down and he kept repeating . And my estimate is that he was reading some kind of document " Cochrane also spoke at the "second meeting" and "he glanced down " In Mendoza's "opinion," Cochrane was "reading " 3 Sorice, a company supervisor, did not testify OVERNITE TRANSPORTATION CO. would never sign a contract . . . they were not about to negotiate with the Union. On cross-examination, Thelan generally acknowledged that Edwards was "reading from a paper." Employee Thelan further testified that he later had the following conversation with Supervisor Conrad Knepp "in Mr. Knepp's office," Mr. Knepp wanted to know what was being said about the Union . . . . And I answered specifically that the Union was asking, the Union drivers were asking for $11 an hour raise. They wanted a 40 hour week and they wanted time and a half. And he asked me what else was said. And I told him that is all I heard. And he said thank you. Thelan, on cross-examination , placed this conversation in August 1982. He explained that Knepp had sent for him on this occasion.4 Company Vice President Edwards testified that he ad- dressed the Chicago terminal employees at Giorgio's Restaurant during early April 1982. Edwards identified Respondent's Exhibit 1 as "a copy of the talk that I made to the employees at the April meeting." Edwards assertedly "read from it all"; he did not "say anything to the employees other than what's on that" document; he "may have used an 'I' or a 'We' or 'They,' but basically [he] did not deviate from what's on here"; he did not "add anything." Respondent's Exhibit 1 recites, in part, as follows: IN ORDER THAT I MAY BE ENTIRELY CLEAR IN WHAT I SAY TO YOU TODAY, AND IN ORDER THAT THERE MAY BE NO DOUBT OR MISUNDERSTANDING AS TO WHAT I DO SAY, I AM GOING TO REFER TO SOME NOTES WHICH I HAVE HERE BEFORE ME. EFFORTS OF THE UNION TO ORGANIZE OVERNITE ARE NOT NEW. THAT UNION HAS BEEN TRYING FOR NEARLY 40 YEARS BUT WITHOUT SUCCESS. THERE IS NO TERMINAL OF THIS COMPANY WHERE THE UNION REPRESENTS THE EMPLOY- EES. ... YOU SHOULD ALSO THINK ABOUT HOW IT WOULD BE TO WORK AT THE ONLY TERMINAL IN THIS COMPANY THAT IS ORGANIZED. IF YOU WILL CON- SIDER THESE THINGS AND WHAT I HAVE YET TO SAY, I THINK YOU WILL COME TO THE CONCLUSION THAT YOU ARE BETTER OFF WITHOUT THE UNION THAN YOU WOULD BE WITH THE UNION. IT IS ALSO A POLICY OF THE COMPANY TO TREAT EACH EMPLOYEE WITH DIGNI- TY AND RESPECT-TO BE CONCERNED ABOUT THE WELL-BEING OF COMPANY EMPLOYEES AND THEIR FAMILIES. THE 4 Knepp, a company supervisor, did not testify 675 COMPANY HAS ALWAYS PUT THESE POLI- CIES INTO PRACTICE AND INTENDS TO DO SO ON AND ON INTO THE FUTURE. THERE IS, HOWEVER, A LIMIT BEYOND WHICH WE CANNOT GO. IT IS NOT IN YOUR BEST INTERESTS, OR IN THE COM- PANY'S BEST INTEREST, FOR US TO SPEND MORE MONEY THAN WE CAN AFFORD. IT IS IN YOUR BEST INTERESTS, AND OURS, TO KEEP THIS COMPANY ON A SOUND FI- NANCIAL BASIS THEREBY PROVIDING SE- CURITY FOR EVERYONE INVOLVED. WE ALL KNOW, OF COURSE, THAT IT IS USE- LESS TO WORKERS AND THEIR FAMILIES TO BE EMPLOYED BY A COMPANY THAT HAS NO WORK FOR THEM TO DO. THAT IS EXACTLY WHAT HAPPENED TO MANY THOUSANDS OF EMPLOYEES WHO WORK FOR UNIONIZED TRUCKING COMPANIES THROUGHOUT THIS COUNTRY-THOSE COMPANIES ARE GOING BROKE ON A WHOLESALE BUSINESS-AND THEY ARE SHUTTING THEIR DOORS AND CLOSING DOWN FOREVER. AGAIN, I EMPHASIZE, WE HAVE NO INTENTION OF ALLOWING THAT TO HAPPEN AT THIS COMPANY. THE EFFORTS OF THE UNION TO COME IN HERE ARE, OF COURSE, A MATTER OF CONCERN TO THE COMPANY. WE CONSID- ER IT ALSO-AND JUST AS TRULY-A MATTER OF SERIOUS IMPORTANCE TO EACH AND EVERY ONE OF YOU-IMPOR- TANT TO YOUR FUTURE HERE AND THE FUTURE OF YOUR FAMILIES. IT IS OUR SINCERE BELIEF THAT IF THIS UNION WERE TO GET IN HERE, IT WOULD NOT IN THE LONG RUN WORK OUT TO YOUR OWN BEST INTERESTS. A UNION ... IN THE END USUALLY BRINGS FRICTION AND DISSENSION AND SERIOUS TROUBLE FOR ALL CONCERNED. WE ARE DEFINITELY OPPOSED TO ANY ARRANGEMENT IN WHICH IT IS NECES- SARY FOR ANYBODY TO BELONG TO THE TEAMSTERS UNION, OR ANY OTHER UNION, IN ORDER TO WORK FOR THIS COMPANY. THIS IS THE STAND WE TAKE ON THIS MATTER, AND THERE WILL BE NO CHANGING IN THIS POSITION AND THIS POLICY. A UNION COMING IN DOES NOT AUTO- MATICALLY BRING ANY WAGE IN- CREASES OR ANY OTHER BENEFITS TO ANYBODY. THE RUMOR IS BEING SPREAD ALL OVER THE PLACE THAT ALL YOU 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD HAVE TO DO IS SIGN CARDS AND AUTO- MATICALLY YOU WILL BE PAID $13.00 PER HOUR. I WILL GUARANTEE YOU HERE AND NOW THAT THIS IS A FALSEHOOD AN ABSOLUTE FALSEHOOD. NO SUCH THING WILL HAPPEN AND IT WILL BE A SERIOUS MISTAKE FOR YOU TO BELIEVE THAT IT WILL. IF THIS UNION WERE TO SOMEHOW GET IN HERE, WHAT COULD IT FORCE THIS COMPANY TO DO? THE ANSWER IS- NOTHING THAT THE COMPANY MIGHT NOT CONSIDER TO BE REASONABLE OR PRACTICABLE. THE UNION COULD TRY TO PRESSURE THE COMPANY BY PULLING YOU OUT ON STRIKE. I HOPE YOU WILL UNDERSTAND, HOWEVER, THAT WE HAVE NO INTENTION OF YIELDING TO ANY SORT OF STRIKE PRESSURE HERE. IN SAYING THIS, I DO NOT MEAN TO SOUND HARSH OR ABRUPT. I SIMPLY THINK THAT IT IS FAIR AND RIGHT-AND LIKEWISE IMPORTANT-THAT EVERY- BODY SHALL UNDERSTAND THIS CLEAR- LY-WHILE THERE IS YET TIME AND BEFORE ANYBODY GOES DOWN THE WRONG ROAD, BELIEVING THAT A UNION CAN DO THINGS WHICH IT DEFINITELY CANNOT DO. Edwards further testified that he also spoke to the as- sembled employees at the Holiday Inn in Oak Lawn, "the day before the election." Edwards identified Re- spondent's Exhibit 2 as "a copy of the talk that was made at the second meeting"; he assertedly "read it ver- batim"; he made no "other" comments." Also see Gener- al Counsel's Exhibit 7, an earlier typed text of this same speech which was prepared by the Company's attorneys. However, Edwards acknowledged that he "struck" from Respondent's Exhibit 2 reference to "an old Southern ex- pression" (p. 3). Edwards also acknowledged that Com- pany Board Chairman Cochrane, in his speech, added and "went beyond" the prepared text. And, I note that General Counsel's Exhibit 7, which purportedly contains the text of both Edwards' and Cochrane's speeches, is prefaced by the following instruction or comment: Suggestions For Talks By Mr. Johnson, Mr. Ed- wards And Mr. Cochrane To Employees At The Chicago Terminal .... Respondent's Exhibit 2, like General Counsel's Exhibit 7, reads, in part, as follows: IT IS A STRANGE THING TO ME THAT SO MANY PEOPLE HAVE NOT UNDER- STOOD THAT BUSINESSES CANNOT SUR- VIVE AND CANNOT PROVIDE JOBS FOR EMPLOYEES IF THEY DO NOT MAKE REA- SONABLE PROFITS. THERE ARE MILLIONS OF PEOPLE IN THIS COUNTRY WHO EITHER HAVE OVERLOOKED THIS ECO- NOMIC FACT OR ELSE THEY DO NOT CARE. IT IS THAT SORT OF PEOPLE WHO, THROUGH THEIR POWERFUL UNIONS, HAVE PUSHED THEIR EMPLOYERS INTO FINANCIAL RUIN AND BANKRUPTCY. THEIR PHILOSOPHY HAS BEEN "EAT, DRINK AND BE MERRY TODAY FOR TO- MORROW YOU MAY DIE." THESE ARE ALSO THE SAME PEOPLE WHO ARE NOW LEARNING FAST THE HARD WAY. THEY ARE PAYING DEARLY FOR THEIR MIS- TAKES. THEY HAVE DRIVEN PENN CEN- TRAL, THE LARGEST RAILROAD IN THE HISTORY OF THE WORLD, INTO UTTER DESTRUCTION. THE SAME THING HAS HAPPENED TO THE OLDEST TRUCKING COMPANY IN THE WORLD, THE RAILWAY EXPRESS AGENCY-AND NOW TO ONE OF THE LARGE AIRLINES-BRANIFF INTER- NATIONAL AIRWAYS. BUT THE TRUCKING INDUSTRY HAS BEEN HARDEST HIT OF ALL. YOU ARE WELL AWARE OF SOME OF THE BANKRUPTCIES-SPECTOR- RED BALL, MID-AMERICAN, COOPER-JAR- RETT AND OTHERS. THE LIST OF DE- STROYED COMPANIES IS GROWING BY LEAPS AND BOUNDS INCLUDING AKERS, CENTRAL, R.C., POINT EXPRESS, EAZOR EXPRESS, W.T. COWAN, ET&WNC, M&M, MILLER-ADLEY, EASTERN EXPRESS AND MORE. MANY OTHERS ARE ON THE VERY VERGE OF BEING ADDED TO THIS LIST OF BROKEN COMPANIES. IT IS IMPORTANT FOR YOU TO UNDER- STAND AND ACCEPT THIS AS THE TRUTH: IF THE TEAMSTERS UNION COULD SOMEHOW FULFILL THE PROM- ISES THEY HAVE MADE TO YOU, OVER- NITE WOULD VERY QUICKLY GO BROKE AND OUT OF BUSINESS, WITH NO JOBS FOR ANYONE. BUT THAT IS EXACTLY THE EFFECT OF WHAT THE TEAMSTERS UNION WOULD LIKE FOR YOU TO BE- LIEVE THAT IT WOULD FORCE OVERNITE TO DO. IF THE UNION WERE TO GET IN HERE, IT WOULD NECESSARILY FORCE US-I REPEAT, FORCE US-TO SWITCH COM- PLETELY IN OUR ATTITUDE ABOUT OUR EMPLOYEES. WE COULD NO LONGER AFFORD TO SAY, "HOW MUCH IN THE WAY OF IMPROVEMENTS IN WAGES AND BENEFITS CAN WE AFFORD TO GIVE OUR PEOPLE?" THE NEW ATTITUDE NECES- SARILY FORCED UPON US WOULD BE, "HOW LITTLE CAN WE GET BY WITH GIVING THESE EMPLOYEES WHO ARE REPRESENTED BY THIS UNION?" I CER- TAINLY CANNOT SEE HOW ANY SUCH OVERNITE TRANSPORTATION CO. CONDITION AS THAT COULD BE EXPECT- ED TO HELP EITHER YOU OR THE COMPA- NY. I THINK THAT I AM JUSTIFIED IN RE- PEATING AGAIN WHAT WE HAVE OFTEN SAID TO YOU BEFORE . IF THIS UNION WERE VOTED IN AT OVERNITE WHAT COULD IT FORCE US TO DO ANYWAY? THE ANSWER IS THIS-AND I EMPHASIZE IT WITH ALL THE POWER AT MY COM- MAND-THE UNION COULD NOT FORCE THIS COMPANY TO DO ANYTHING THAT IT DOES NOT CONSIDER TO BE REASONABLE OR PRACTICAL OR IN THE BEST INTERESTS OF YOU, ITS EMPLOYEES, IN THE LONG RUN. OF COURSE, THE UNION CAN TRY TO BRING PRESSURE ON THE COMPANY BY PULLING YOU OUT ON STRIKE. I DO NOT WANT TO SOUND ABRUPT ON THIS MATTER, BUT I THINK THAT IT IS ONE OF THE UPMOST IMPORTANCE THAT YOU UNDERSTAND THIS WHILE THERE IS YET TIME-OVERNITE TRANSPORTATION COMPANY HAS NO INTENTION OF YIELD- ING TO ANY SORT OF STRIKE PRESSURE BY THIS UNION, EITHER NOW OR AT ANY TIME HEREAFTER. YOU SHOULD ALSO REMEMBER THAT WHEN A UNION CALLS PEOPLE OUT ON STRIKE IN ORDER TO FORCE A COMPANY TO AGREE TO WHAT THE UNION WANTS, IT IS DEFINITELY THE RIGHT OF THE COMPA- NY TO FILL THE JOBS OF THOSE WHO SEE FIT TO GO OUT ON STRIKE. AND THOSE WHOSE JOBS ARE FILLED WHILE THEY ARE OUT ON SUCH A STRIKE, WILL HAVE NO RIGHT AUTOMATICALLY TO RETURN TO THEIR JOBS AFTER THAT-OR GET THEIR JOBS BACK-EVEN WHEN THE STRIKE HAS ENDED . I WANT TO REPEAT THAT STATEMENT TO YOU SO THAT IT WILL BE CLEAR AND SO THAT THERE WILL BE NO DOUBT ABOUT IT IN THE MINDS OF ANYBODY-THOSE WHOSE JOBS ARE FILLED WHILE THEY ARE OUT ON SUCH A STRIKE, HAVE NO RIGHT AUTO- MATICALLY TO RETURN TO THEIR JOBS AFTER THAT-OR GET THEIR JOBS BACK- EVEN WHEN THE STRIKE HAS ENDED. AS I SAID ABOVE, I DO NOT WANT TO SOUND HARSH OR ABRUPT IN TALKING TO YOU. I THINK YOU SHOULD KNOW, HOWEVER, THAT IF THE UNION WERE TO GET IN HERE AND CALL PEOPLE OUT ON STRIKE, THE COMPANY DEFINITELY WOULD HIRE REPLACEMENTS FOR THE STRIKERS IN ORDER TO KEEP THIS TER- MINAL IN OPERATION . WITH UNEMPLOY- MENT AS HIGH AS IT IS, I HAVE NO DOUBT THAT PLENTY OF PEOPLE WOULD BE GLAD TO COME IN HERE AND WORK DESPITE A TEAMSTERS STRIKE. 677 IF THE UNION WERE VOTED IN HERE, ALL THAT THE LAW WOULD REQUIRE US TO DO WOULD BE TO "BARGAIN" WITH THE UNION. THIS DEFINITELY DOES NOT MEAN, HOWEVER, AS TOO MANY PEOPLE MISTAKENLY BELIEVE, THAT WE MUST START OUR BARGAINING WITH THE WAGES AND BENEFITS YOU NOW HAVE. THERE IS NO LAW WHICH REQUIRES US TO DO ANY SUCH THING AS THAT. IN THAT CASE, WE WOULD HAVE EVERY LEGAL RIGHT TO BARGAIN FOR A RE- DUCTION IN ALL PHASES OF WAGES AND FRINGE BENEFITS JUST THE SAME AS MANY OTHER COMPANIES ARE DOING ALL OVER THE COUNTRY TODAY. AND, IF ECONOMIC FACTORS INDICATE THAT WE SHOULD DO SO, OVERNITE WOULD NOT HESITATE TO BARGAIN IN THAT FASH- ION. IN ALL OF THIS, THERE IS A FUNDA- MENTAL QUESTION WHICH YOU SHOULD CARRY IN YOUR MIND-"WHAT IS IT THAT YOU MAY EXPECT IF THIS UNION WERE TO GET IN HERE?" THE ANSWER- AND YOU SHOULD NOT IGNORE IT OR OVERLOOK IT-THE ANSWER IS TROUBLE! THAT IS WHAT THIS UNION HAS BROUGHT ELSEWHERE-STRIKES, LOST WORK, LOST PAY, LOST JOBS, DEBT AND REGRET-BITTERNESS AND MISERY. DO YOU SEE ANY GOOD REASON TO RISK ALL OF THAT HERE? In addition , Management, in a letter to "All Local Pick-Up And Delivery Drivers," dated June 9, 1982 (G.C. Exh. 6), stated, in part, as follows: The outcome of this election will be important to you and to those who are dependent upon you-impor- tant to your future and the future of your families. We have no intention, however, of yielding to any sort of strike pressure.... If a Union calls people out on strike in order to try to force a Company to agree to what the Union wants, it is definitely the right of the Company to fill the jobs of those who see fit to go out on strike. There is not now a unionized terminal or operation in this entire Company. You have all seen what the Teamsters have done to unionized companies-the dilapidated and obso- lete equipment, run-down terminals, thousands of employees without jobs, only occasional work for many others, and in the end financial disaster and 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shut-down for many of them . You will be seeing much more of that in the future. The Union harps on the subject of premium pay for overtime work . . . There are, of course, com- panies that have Union contracts, requiring them to pay time and one-half for overtime work; but there is no overtime work for them to do . . . [An] over- time pay contract is no good when there is no over- time work to be done. Bear in mind that you now have the individual right and freedom to come in and settle with us per- sonally any problems you may have . But if this Union were to get in, this freedom and this right .. . would definitely be taken away from you and placed in the hands of the Union. Elsewhere in this letter, Management noted , in part: Now some people have the idea that if they join and vote for a Union, then they will get benefits and advantages over other employees . . . this is definitely not true. Do you see any good reason to bring this outside Union in, pay your money to it, and at the same time run the risk of tearing apart everything you now have? ... you stand to lose if this Union were to get in here, and you stand to gain by keeping it out! Lynn Johnson, terminal manager at Respondent's Chi- cago terminal, testified that he attended two employee meetings prior to the Board -conducted representation election. Johnson claimed that Edwards, during both meetings, "read a prepared statement." Johnson "fol- lowed along as he spoke" on Johnson 's copy of the text. However, Johnson acknowledged that Edwards, had made some minor changes , such as the speech had been written to say, "to use a southern expres- sion." He [Edwards] had marked some of those out, and he didn't use that here. Other than that, it was verbatim. Johnson also claimed that Cochrane, during his speech, followed the printed text. However, Johnson acknowl- edged that Cochrane, At the beginning of his talk, he gave a brief summa- ry of the history of the Company . He told that he had driven a truck. . . . [E]ither he or the Compa- ny was at one time Union . . . . He said something about that they were Union at one time, that some people had bumped him in his car or run him off the road or something to that effect... . Johnson denied other statements attributed to Cochrane by witnesses.5 51 credit the testimony of Bruce Roberts , James Phillips, Carlos Garcia, Gonzola Mendoza and Bernard Thelan , as detailed above Their testimony, as discussed further below , is in significant part mutually cor- The Bargaining Sessions Sheldon M. Charone, attorney for Charging Party Union, testified about the bargaining sessions between the parties. There were six bargaining sessions following the Union's certification. The initial session, on July 27, 1982, was attended by Company Vice President Edwards and his attorney, John O. Pollard. Charone was chief spokesman for the Union . Salvatore Tenuta, a business representative for the Union, was also present. Charone recalled that the Company, at the first meeting, "had copies of our [proposed ] collective bargaining agreement, the joint area agreement." (See Tr. pp. 29-30, G.C. Exh. 8.) Pollard "turned to it and started to ask some ques- tions"; "we started to go through the agreement"; and "Pollard asked questions as we went along ." There was a discussion about the Company's existing benefits, the pay scale, the merit increase program and a 35 -cent in- crease due September 13, 1982, the health and welfare program, the pension program , sick leave, jury duty, and "in general the kind of benefits the Company provided." The parties, during this initial session , "went over" the Union's proposed contract (G.C. Exh. 8.) According to Charone, Pollard, with reference to section 1, article I, of the proposed contract ("Parties To The Agreement And Its Scope"), stated that the Employer is not a member of "any association" and did not "want to become a member." The Union generally agreed. Pollard also stated, with reference to section 2, that there is .,only one Union ... Local 705." The Union generally agreed. Pollard stated, with reference to section 3, per- taining to any transfer of the Company, "that they didn't believe they were going to be involved with that kind of a provision . . . they didn't think they would want to be a part of or agree to" section 3. Charone recalled that "this was pretty much all at our first meeting." At the second meeting, on August 24 , 1982, as Char- one further testified, "we decided to go into greater detail [on] our proposals." (See G.C. Exh. 8.) The "Union shop provisions" of article II were discussed. Pollard said "that the Company didn't think it was their roborative with respect to certain coercive and threatening statements at- tributed to Company Vice President Edwards and Board Chairman Cochrane during their speeches in April and June 1982 Roberts , Phillips, Garcia, Mendoza and Thelan impressed me as trustworthy , reliable and credible witnesses Their testimony is also substantiated , in part, by vari- ous sections of the written texts of the speeches purportedly made by Ed- wards and Cochrane during April and June. Moreover, I am persuaded here that both Edwards and Cochrane went beyond the written "sugges- tions" of their attorneys as contained in the texts and in fact made the additional coercive comments attributed to them by the employees Cochrane, who did not testify, concededly deviated in significant part from his suggested written text Edwards also, in a more limited manner, admittedly modified his suggested written text And, insofar as the testi- mony of Edwards and Lynn Johnson differs from the testimony of Rob- erts, Phillips, Garcia, Mendoza and Thelan , as recited above, I find here the testimony of the latter witnesses to be more complete and trustwor- thy I note also, with respect to the additional coercive statements and conduct, discussed further below, attributed by Mendoza to Supervisor Mike Sorice and by Thelan to Supervisor Conrad Knepp, the testimony of Mendoza and Thelan stands uncontradicted on this record In sum, I find and conclude here that Edwards and Cochrane went beyond the cited textual material of their suggested speeches, and made the addition- al coercive statements attributed to them I also find that Sorice and Knepp engaged in the conduct and made the statements attributed to them. OVERNITE TRANSPORTATION CO. business of what the Union did in getting members... . It was up to the Union [and] the Company would not agree to have a Union shop." The parties then turned to the Union's "check-off provisions" of art. II. Charone asked Pollard, if the Company "used the check-off." Pol- lard responded that "they did for the employees' contri- bution to their part of the Company health and welfare" program . Pollard, however, stated that "the Company would not agree to any check-off of any sort." The parties, as Charone further testified, then turned to "the probationary period," as provided in section 2 of article II of the Union's proposed contract . The Compa- ny noted that their existing probationary period was 90 days; the Union noted that it proposed a 30-day period; and the Union added, "we could certainly work out that." The Union generally acknowledged that "we could live with the Company's 90 days." The parties next turned to "rates of pay in Art. III." Pollard stated: "The Company pays the same rates of pay all over ... ." The parties "discussed cost of living, which was Sec. 2 of Art. III." Pollard stated : "The Company didn't believe in cost of living. They would not agree to a cost of living." Further, section 5 provides "time and a half" for "overtime," and Pollard, said no, they [the Company] don't pay time and one half for any employee throughout their system. They just pay straight time. Pollard insisted : ". . . they were not going to pay over- time." As for section 6, pertaining to premium pay for "Saturday and Sunday work," Pollard said again, "it was the Company's uniform policy not to pay overtime for Saturday and Sunday work and they reject it." Section 8 of article III provides for a "weekly pay day." Company Negotiator Pollard "said there was no problem with that ." Section 10 provides for "lost time and bail bond." Pollard agreed that "there would be no problem with that." And, section 11 of article III deals with "new type of equipment." Pollard asserted: The Company would discuss it with us . . . if they put new equipment in . . . and you didn 't need this kind of agreement, and we would be able to discuss it. Pollard added : ". . . we [the Union] could strike over the new equipment if there were "problems." As for sec- tion 12, "equipment size" and the applicable "rate of pay," the Company said "no." Further, as for section 13, "funeral leave," the Union's proposal provided for three days; the Company "had two days"; and the Union gen- erally "indicated that there was no real problem." Article IV of the Union's proposed contract pertains to "hours." Charone recalled that section 1 provides for "five days" at "straight time" compensation . The Com- 6 It was stipulated , at the hearing (Tr p 35), that the Employer "al- lowed employees to voluntarily have deducted from their paychecks money for [health] insurance premiums , the advanced cost of uniforms the option to buy Company stock garnishments, savings plans and special insurance premiums for items such as health and special cancer protection insurance ... . 679 pany again said "no" to any "time and one half," in con- junction with this provision . Section 4 provides for a "meal period"; the Company said "they would agree to that." Article V provides for employee "guarantees." Charone recalled: I explained to Mr . Pollard that under our [Art. V. Sec. 1] . . . employees were guaranteed not less than eight continuous hours of work or the equiva- lent of a full day of pay. And he said that isn't what Overnite does, and their policy throughout the country . . . is the policy they would follow ... . The Employer's "policy" was: "Whatever hours they [the employees] were going to work, they were going to work." The Company's response to section 2, "Sunday" work, and section 3, "weekly guarantee," was "pretty much the same thing." The Company agreed to para- graphs (b) and (c) under section 4, dealing with transpor- tation of injured or deceased employees; the Employer said "that is pretty much what they were doing." Article VI deals with "holidays." The Union proposed nine; the Company had seven. The Union acknowledged that it "could live with seven ...." The Company ap- proved only in principle the proposed "holiday rate" of section 2, article VI. The Company, however, did not agree on any specific formula or "double the regular rate." Article VII deals with "vacations." "The Compa- ny suggested they wanted to continue to pay vacation pay as they were presently paying it." Article VIII pro- vides for "seniority." The Employer's existing policy was, according to Charone, "... they don't have layoff as such"; "a person would just be terminated and they would not really have recall rights . ..." The Union proposed that "someone laid off would be able to remain on the seniority list for a year and you would have to be called back in the order you were laid off." In response, the Company stated : "that is not how they [the Employ- er] do it, and they wouldn't agree to [the Union's pro- posed] language." Likewise, the Company would not ef- fectuate layoffs by seniority-"they wouldn't agree to it because they don't call it a layoff . . . it is a termination . ..." However, the Company said "fine" to the "post- ing of [a] seniority list," as proposed by the Union. The Company, in addition, rejected related union proposals pertaining to "Changed Conditions," "New Branches" and "Closing Of Branches." The Company claimed: "They don't have that kind of system" and "rejected that language." The Company also rejected the Union 's relat- ed proposals pertaining to "Buy-outs, Mergers and Con- solidations," in section 7 of article VIII.' Article IX deals with "Uniforms and Rain Gear." Charone testified: "I think terminal yardmen are provid- ed with ... rain gear, and that if they [the Company] required them to wear uniforms, we had no problem with that language . ... I marked it okay." Article X deals with "Workers' Compensation and Insurance." The Company agreed to the general language of section 1 of Art. X. Charone added : "as far as we knew, they were The Employer, Charone noted, "agreed" to the prohibition against requiring an employee to purchase his vehicle 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD obviously following that State policy" on workers' com- pensation. However, section 2 of article X proposes "li- ability insurance." The "Company said they don't have that in their system; they said no." Article XI pertains to union "stewards" and their "au- thority." The Company agreed to the appointment provi- sions, section 1; however, language on their authority would be provided later by the Company. Article XII generally pertains to "Owner-Operators." The Company asserted that they "didn't use owner-oper- ators." Union Representative Tenuta responded: ".. . but you [the Company] use all the Seiwert people .. . you used Seiwert before . . . you opened up the terminal ... and you still use them ...." Tenuta added: "and you are paying them the $12.96 Union rate." Tenuta then asked: "Why can't men that are on your payroll get paid the same rate?" Company Attorney Pollard responded, in part, "[w]ell, we have an agreement with Seiwert, and we don't know what they do or not." Tenuta comment- ed: "They work right out of your yard and they do the same work that the men now on the payroll work." Fur- ther, article XIII pertains to "Transfers And Subcon- tracting." Pollard "said they wouldn't do that for solely ... eliminating the Union [and] they wouldn't agree to the language" of section 1 and 2, of article XIII.8 Article XIV contains proposed "Safety Rules." Char- one acknowledged that the Company agreed to, inter alia, Sec. 1 ("unlocked trucks"), section 2 ("heaters" and "defrosters"), and, "in principle," section 3 ("unsafe equipment"). "They would have the final say [whether] any particular piece of equipment is safe or not safe." As for the Union's proposal of marking trailers with "heights," that "was impractical." There was agreement on section 4, which pertains to "Dangerous Conditions" and requiring any employee to perform such activity, and Section 5, which pertains to "Peddle Truck Steps." Article XV provides "Protection Of Rights" for em- ployees. As for section 1 ("picket line"), "they [the Com- pany] wouldn't agree to that. "section 2, Sec. 3, and 4 pertain to "struck goods" and "sympathetic action." Ac- cording to Charone, "we went through it all" and "they said no." Article XVI deals with "Health And Welfare Fund." Article XVII deals with the "Pension Trust Fund." The Company wanted copies of the Union's health and welfare and pension plan. Copies were pro- vided. The Union's and the Company's plans were dis- cussed. Charone explained to the Company: "It was really very important that . . . we have ours . . . and a lot of the men that had worked for the Company had been under the [Local] 705 health and welfare fund. It [the plan] had dental" and "eye coverage," and the Com- pany's plan "had neither." Pollard, at this or the meeting, rejected the Union's plan as "probably twice as expen- sive as theirs." Charone testified, "we next discussed the pension [plan], and I said that was probably the most important item, or one of the most important items, and the reason 8 It was stipulated (Tr. p 36) that "during the period of these negotia- tions Respondent subcontracted certain work to a Company named Setwert In so doing, they received drivers and trucks at an hourly rate of $32.50." being . . . that a good number of the men that now work for the Company had been in other companies who were covered by the 705 pension. . . . Under the 705 pension, if you work three years with one company, and you were out a year or so, and you started with Over- nite, you would take the time you had with the other company; you wouldn't lose it . . . . I also explained that Local 705 is a signatory to the Joint Council of Re- ciprocal Pension Plans, as well as Reciprocal [Pension Plans] with the International Union for the Central States . . . ." Charone explained: "Under the Joint Council Of Reciprocal [Plans], if [an employee] worked for two or more local unions that had different funds, if he had enough credits with both funds he could get a partial payment from each of the funds . . . ." Charone illustrated how a driver "would take his pension plan with him and he wouldn't lose anything"-"it was a very important item." In response, Mr. Pollard said that they had a very good plan and they were proud of their plan and they would rather have their plan, and he rejected ours. The parties then agreed to proposed article XVIII on "Union Inspection And Activities," "in principle." How- ever, the "Union representative could not disrupt any- thing." Article XIX provides the "Grievance Procedure." Pol- lard "said that he wouldn't want to be bound by that type of procedure ...." Charone "said, we would cer- tainly tailor a grievance procedure where it would be just Overnite Company and Local 705, and as long as [it] culminated in binding arbitration." Pollard replied that "the Company didn't believe in binding arbitration"; "if we couldn't reach an agreement over a grievance .. . we just deadlock . . . the Union would have the right to strike." The Company rejected Article XIX. Article XX deals with "Time Clocks"; the "Company said that they had time clocks and . . . would agree .." The Company agreed to article XXI ("veter- ans"); it is "pretty much a restatement of the Federal law" and, according to Charone, "I think it was the Company's policy ...." Article XXII deals with "Ju- risdiction And Pick-Up And Delivery Limitations." The "Company said no [on Secs. 1 and 2], and they said .. . sometimes . . . they use drivers to do dock work or warehouse work and . . . they wouldn't agree with it at all." The Company "said no" to section 6 on "jurisdic- tional disputes." The Company also said "no" to the lan- guage of article XXIII "which provides that by signing the agreement no one is losing any benefits they have. ... Mr. Pollard said no, and he said he was going to suggest a zipper clause ...." The Company agreed to the "Extra Agreements," "Work Week Reductions," "Suspension or Revocation of License," "Bonds," "Pas- sengers," "Garnishments," "Non-Discrimination" and "Leave Of Absence" sections. Charone recalled, with re- spect to the above items of agreement, "I think in all of them, they [the Employer] were already following them." Charone added: ". . . when we discussed these OVERNITE TRANSPORTATION CO. matters, in almost every case, the Company said that was their policy."9 Pollard then indicated to Charone that, "at our next meeting," scheduled for September 2, he would give us the Company's "written contract"-"it would be a one year contract and it would be .35 an hour increase." At the initial meeting on July 27, as Charone testified, They [the Company] outlined their pay scale and they said they were then paying $8.40 to 9.40, and they had a merit increase program, and I believe Mr. Pollard said it was a .35 increase due Septem- ber 13. [Pollard] asked what the Union's position was as to the merit increase or this proposed .35 September 13 increase, and I said we would let them know. At this second meeting, on August 24, there was again discussion by the Company of "this .35 increase across the board that everybody was going to get that worked for the Company ...." The third meeting, as Charone further testified, was on September 2, 1982 . The Company presented its written proposals at this meeting. (See G.C. Exh. 9.) The parties discussed at length the Company's proposed contract. Charone recalled , "the first thing we noticed was the membership and dues" provision in section 1 of article II, providing that "employees shall be free to become and remain members of the Union " and "free to pay dues or not to pay dues ." Charone objected to this lan- guage. Pollard said, "Well, that is what the Company's policy is." The Company refused to agree to check-off; "they don't want to have anything to do one way or the other with Union dues . . . they think it's up to the Union to get its money . . . ." The Union, as noted earlier, stated that it "could live with" the Company's 90-day "probationary period," as provided in section 2. The Company insisted this time period was "used throughout the system." And, on wages, article III, "all that was the Company's wages with the addition of the .35" and Pollard "said that is correct." And, as discussed earlier, "there is no provision on the guaranted work week." Pollard explained, "they didn't agree to that." Section 2 of article III provides for a "weekly pay day" and section 3 provides for "lost time and bail bond." This had been discussed . Charone noted that sec- tion 4 was "the language on new equipment" or new op- erations, "which permitted a reopen by the Union on 30 days notice," and "if we can't reach an agreement .. . either party may engage in lawful economic recourse in support of its demands." Section 5, Charone observed, "was the Company's policy" on funeral leave "which they previously told us . . . existed throughout the system, and we told them that was okay." The proposed provision on "hours" was also "the Company's policy." (See art. IV.) 9 The parties agreed on "sick leave or personal leave." As Charone tes- tified, "the Company rejected ours and said they had a better plan " There was agreement on 'jury duty " There was no agreement on "poly- graph" tests; the Company used polygraph tests and, therefore, would not agree to sec. 10 of art XXIII 681 The Union, as Charone testified , "had no problem" with article V, "on-the-job injuries." Article VI, "holi- days," was a "restatement of the Company policy of seven holidays." However, "the pay was for actual hours worked." Article VII was the Company's "restatement of what they had told us their previous vacation policy was, and would be based on 40 hours at the employee's current hourly rate." And, article VIII, "Seniority," "didn't meet with our goals . . . it didn't really provide at all for any rights in case an employee was laid off ." Likewise, the Company's provision on "reduction in the work force" "didn't provide really for layoffs .." This provision "did provide for reduction by job classification," but "it would be up to [the Company] what they wanted to do." t ° And, article XII "was in part our language on transfer, but there wasn't any pro- vision about subcontracting at all." Charone testified that the Company's proposed article XIV, on "strikes and lockouts," "wasn 't what we were looking for in our protection of rights language ." It gen- erally prohibited a "strike" during the term of the agree- ment. There was an exception, "if there was a break- down in the grievance procedure." Likewise , article XV, on "struck goods and picket lines," "wasn't the language we had proposed, and we couldn't reach agreement." Further, the Company insisted on maintaining its "present life and health insurance" programs. The Union argued that the Union's plan was "superior." The Union had provided the Company with a chart showing a "comparison between the two different plans ." (See G.C. Exh. 13.) The Company "said they were just going to maintain their own." Charone added : "the same thing was true with article XVII on "retirement." The Compa- ny insisted on maintaining their own plan. The Union ex- plained, as it had done earlier, why its proposed retire- ment provisions were important to the employee mem- bers. Pollard said, "well they thought they had a good plan." Article XVIII, as proposed by the Company, was a grievance procedure, and it provided "that if we, the Union, couldn't reach an agreement . . . we would have a right to strike after giving the Company notice." The Union did not view this proposal as "reasonable." The Company "just didn't believe in" arbitration. Charone noted that the Company's provision on "time clocks" was "our language"; the language on "veterans" in article XX was "our language"; and "we had no prob- lem with Article XXI, the Employer's "Management rights" clause. However, article XXII, "Inclusiveness Of Contract" or the so-called zipper clause, was not, ac- cording to Charone, "responsive to what we had sought ... that was the preservation of what employees al- ready had." Charone, in like vein, generally reviewed the Company's proposals pertaining to "General Condi- tions" (art. XXIII), noting, as discussed earlier, the items of agreement and disagreement. Charone, as he further testified, turned to article XXIV on "transfer of operation." He explained, "it 10 There had been agreement earlier on sec . 4, art VIII, "purchase of vehicle or interest "; art IX, "uniforms and rain gear"; and art X, "Workers' Compensation " The language on "stewards" in Art. XI was also "satisfactory to the Union " Also see art. XI11 ("safety rules") 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wasn't the language that we had suggested " and there was no agreement. The Company simply proposed a clause, stating that it "agrees not to move its terminal for the purpose of evading this Agreement." (Cf. arts. XIII and XXIV of G.C. Exh. 8.) Charone testified: After we had reviewed the entire agreement then Sam Tenuta said, all you have given us is what the Company policy is . You haven't given us a thing. And, there is nothing new in this whole thing. And I don't know how we can agree with what you have given us. You haven't made any compromises or you haven't made any movement over what you are doing right now. I think Mr. Pollard said , well that was the Com- pany's proposal. Charone asked Pollard , "does it make much more sense to meet again?" Pollard responded: "if we met again ev- erybody would be saying the same thing over and over again." Tenuta accused the Employer of "pushing us into a strike situation." Pollard replied : ". . . you are going to have to do what you are going to do, and we will have to do what we are going to do." No further meet- ings were then scheduled. Subsequently, by a letter dated September 24, 1982, Charone advised Pollard of the Union's 11-point offer. (See G.C. Exh. 10.) This proposal was in fact handed to Pollard at a meeting of the parties on September 30, 1982. The Union, as recited in this proposal, would accept as "satisfactory" the Company's "probationary period"; "holiday provision"; "vacation program"; and "funeral leave provision." The Union would also accept "maintenance and membership for present employees and an agency shop provision for new employees" instead of the "Union's shop proposal." The Union also sought "check-off'; "a grievance procedure which culminates in binding arbitration"; a Monday through Friday work- week "with overtime after eight hours in one day and 40 hours in one week"; the Union's "health and welfare and pension plans"; and its "seniority provision." As for wages, the Union would accept $11 per hour for drivers. The parties discussed General Counsel's Exhibit 10 at the September 30 meeting . Charone stated to Pollard: Whatever opposition the Company would have to the language in our [initially ] proposed agreement on Union shop, why would you object to mainte- nance of membership, because all that says is people who voluntarily are members would maintain their membership. And Mr. Pollard said, well, they just didn't want to get involved one way or the other. On "check-off," Charone noted to Pollard that the "Company is already checking off health and welfare, what difference would it possibly make if they would check off Local 705 union dues if an employee voluntari- ly signed a form Pollard responded: ". . . they are not going to agree to a check-off." On "arbitration," "the Company's response was just what it was in the previous meetings. That you would have to strike." On "work week," the Company insisted that "they don't pay over- time throughout their system and they are not going to start doing it now"-they "said they don't believe in overtime." As for "wages," which was, Charone ex- plained, a "big cut down from our [initial] proposal," Pollard "said the Company remained consistent with its previous position." No further meetings were then sched- uled. However, the parties did meet on February 1, 1983. Charone explained : "That was another meeting that I ar- ranged with John Pollard ." Charone then apprised Pol- lard: We would like to resolve our problems, and we could go along with everything the Company had proposed if we had the Union's health and welfare, the Union's pension, and if the Company would pay overtime. And if the Company would agree to those three items we could have an agreement. Pollard responded: [We] told you our previous position on your health and welfare. We haven't changed it. And we told you our previous position on the Union's pension. We haven't changed our mind on that . That re- mains the same, and the Company's policy through- out the system is not to pay any overtime. We are not going to change it for Chicago. The meeting ended; no further meetings were then scheduled. However, a sixth and final meeting was in fact held between the parties, on March 29, 1983. Local 705 Presi- dent John Navigato was also present. Navigato reviewed prior bargaining positions and stated: The Union has bent over a lot of different ways, and I have never seen a Company that says no to everything. Pollard replied: "We are prepared to be here . . . we lis- tened to you . . . you haven't persuaded us ... . Charone was uncertain whether "it was at this meeting or not, but we told the Company that it was okay previ- ous, I think, to put the merit increase into effect . . . ; that a number of people . . . had asked about the .35 that had gone in on September 13 throughout the system." Charone added: And we said, well I think, what happened with the .35 general increase, and I think it was Mr. Pollard who said that you will get when you have a con- tract. And, subsequently, in July 1983, we got the .35. The nonunit employees had received the 35-cent general increase in September 1982.11 On cross-examination, Charone acknowledged that the Company never stated during the above meetings "that it wasn't willing to go into any matters that were on the '' Charone also recalled that counsel for the Company about "last month," asked for permission "to put in a 40 increase " The Union had no objection Also see R. Exhs 3, 4, 4(a), 6-8, and 10-13. OVERNITE TRANSPORTATION CO table ... ." Charone added : "I think Mr. Pollard said at several meetings that [they] were there to listen; and we [the Union] came back to the proposals we had advanced in the previous meetings; . . . and [Pollard] said, you haven't convinced us . . . ." Charone acknowledged that Pollard also would offer "the Company 's explana- tion" and "viewpoint," in rejecting the Union's propos- als. Further, Charone recalled Pollard stating at their second meeting "that the Company didn't believe in Union shops, and Union security was a matter for the Union .. .." And, Charone recalled , "I think he [Pol- lard] said that it's a matter of principle that the Company doesn't want to go along with check-off . ... Charone was also asked on cross-examination , "Did he [Pollard] ever say that the Company just didn't believe in cost of living and wouldn't agree to one?" Charone re- plied, "He certainly did not." Charone explained that Pollard had indicated that Overnite instead "looked at [wages] periodically and adjusted [wages] in light of cir- cumstances at the time ...." Further, Charone re- called : "Mr. Pollard said the Company does not have a cost of living, and the Company reviews the wages of its employees throughout its system , and I believe he said there's usually an annual raise, and the Company thought that was adequate." In addition , on the subject of "new equipment," Char- one recalled that Pollard "didn 't agree with the lan- guage" that the Union "had submitted" and "was going to propose some language." Pollard had not stated that "the Company was not willing to put something in the contract ...." Apparently, Pollard indicated that he "would" "if need be" "put a provision in the contract" to the effect that the Company would discuss this prob- lem with the Union if the problem arose . Likewise, Charon agreed that Pollard did not say "that the Com- pany simply would not change its position on [hour] guarantees"; instead, Pollard explained that the Company "needed that flexibility" in its operations. Charone was questioned on cross-examination about Pollard's statements pertaining to "seniority" and "layoff." Charone explained: I recall Mr. Pollard saying that the employees would be terminated , and that in the event that the Company then needed them , they would come back to work, and that [if] they were not terminated for a longer period than their total employment with the Company . . . [they] wouldn't lose any benefits for that period of time. There was a "discussion" on this and related subjects.12 John Pollard, attorney for Respondent , was the chief spokesman for the Company at the six bargaining ses- sions. Prior to the first session , as Pollard testified, "the Union had sent us a copy of their contract proposal." (See G.C. Exh. 8.) At the first meeting, July 27, the Company raised "numerous questions" about the Union's 12 Salvatore Tenuta, business representative for the Union, testified with respect to his alleged denial of access to the Employer's facility in order to discuss a grievance during the above bargaining period The General Counsel acknowledges that this denial of access, under the cir- cumstances, is not claimed to be unlawful See Tr pp 183-184 683 proposal, and "the entire meeting was used up in that manner." Also see Respondent's Exhibits 3, 4, and 4(a), correspondence between the parties prior to this initial meeting. Further, at this initial meeting, and perhaps at later meetings as well , the Union requested and received certain information pertaining to, inter alia , the Compa- ny's pension plan, health and welfare program, and other benefits. The Company also "pointed out that some of the employees in the unit were either overdue for these so-called merit increases or were about to become over- due . . . and asked them what they wanted us to do about it." (See also R. Exhs. 3, 4, 4(a), 6-8, and 10-13.) At the second meeting, August 24 , as Pollard testified, "the Company came prepared to give its responses to the proposals made by the Union ...." The Union's pro- posal was discussed "section by section." Pollard re- called, inter alia, that on "dues check-off" and "Union security," "We stated that we believe very strongly that the Company should remain neutral in these matters . , " Charone explained to the Company that "this isn't going to cost you any money." The Company "dis- agreed." Pollard stated the Employer's position, in part, as follows: in our opinion, voluntary deductions such as check- off were in fact economic items ... when an em- ployee has money taken out of his paycheck he has a tendency to look only at the bottom line . . . tends to look to the Company to make up the dif- ference ... . Pollard, however, acknowledged that the Employer "did deduct from the paychecks for other items," such as "in- surance premiums." Pollard insisted that, "in the case of insurance, we felt that this [deduction] was something that was of benefit to the employee ...." Pollard, at the time, was unaware that the Company was also checking off deductions from employees "to buy uni- forms." The Company, as Pollard claimed, never indicat- ed "an unwillingness to consider the Union 's proposal on [these] subjects," We repeatedly told the Union, while we were op- posed to it, we were more than willing to discuss it, and if he [the Union] could answer our objections to it, we would be willing to acquiesce. Pollard further testified that, subsequently, the Union changed its proposal on "Union shop." The Union sought, in its letter of September 24 (G.C. Exh. 10), "maintenance of membership for present employees and an agency shop provision for new employees ...." The Union, at that time, "still . . . insisted on the dues check- off however." The parties discussed this new union pro- posal at the meeting of September 30. According to Pol- lard, We spent 45 minutes to an hour reviewing it and concluded that, except in one regard , it was virtual- ly identical to what had been proposed to us before. Pollard added, referring to the Union's 11-point proposal contained in its letter of September 24 (G.C. Exh. 10), 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We told the Union again that we were . . . there. We were willing to discuss any of these items. We did discuss them . . . . We stated we had reserva- tions and named them. Pollard recalled that Charone later "wrote and pro- posed some additional meetings," and, consequently, the parties held a fifth session on February 1. There, Mr. Charone immediately advised us that they [the Union] wanted to get a contract and that if we [the Company] would simply agree to their health and welfare plan . . . the pension plan . . . and over- time . . . that everything else would be worked out ... we would have a contract . . . . There was no demand made at that time for dues check off or Union security in any form. Pollard further testified: I [Pollard] again reiterated , perhaps not in as great detail as [I] previously had reiterated, some of the reasons why we were opposed to those [three] items, and pointed out that nothing had been said to us to answer our objections to those particular three items ... . Pollard added : "We expressed a willingness to sit and discuss anything in either proposal, and the Union's re- sponse to that" was, "We've got to have an agreement on these three things ...." Pollard recalled, "We had prepared a new grievance procedure which did provide for arbitration in certain circumstances ...." (See G.C. Exh. 12.) The Union, however, at this fifth meeting, as Pollard acknowledged, "gave up its demand for final and binding arbitration or any arbitration whatsoever." There was, as noted , a sixth session . Pollard recalled that Charone initiated this last meeting. According to Pollard, As I stated, we at that point had an understanding that, if there was going to be some movement on either side we would get together; and if there wasn't any movement there wasn't much point in talking. At the sixth session, the union representatives faulted the company representatives for their positions at the bar- gaining table. A "strike" was threatened. Pollard charac- terized the exchange as a "tirade ." Pollard asserted that ,.at some point in this tirade," Charone stated : "We have never gotten off the position that we took in the Septem- ber 30 meeting, and since you refuse[d] to accept that, we are now back at square one, and our proposal to you is the original proposal we gave you initially." The Union representatives "got up and left." Further, Pollard also testified on direct examination: Q. Did you, in the course of this bargaining-by you, I'm referring to the Company and not you, Mr. Pollard, specifically-did you negotiate it for the Company and say to the Union and predicate your proposals to the Union on the basis that since the Company, Overnite Transportation Company, had this or that or the other as state -wide practice or policy that that was a reason you didn't want to change, you weren't going to change? Did you ever take that position? A. That was never a position we took. That reason was never advanced. Q. What was the occasion for the frequent refer- ences back to what the Company did at other termi- nals? A. This came up in two ways. Mr. Charone would ask us if a particular practice or a particular policy was not what we were doing system -wide or doing elsewhere in the system . That's one way. An- other way is Mr. Tenuta would say, "You're not giving us anything more than you're doing else- where in the system. You're not doing-giving us more than you're already doing." That's the only way it ever came up. Elsewhere in his testimony, Pollard recalled various positions taken by the Employer at the six bargaining sessions, as follows : Pollard, at the second session, ap- prised the Union, inter alia, of its wage rate, and We [the Employer] advised him [the Union] that our experiences had been that . . . we had no trou- ble getting and keeping people at the rate we had established, and that it was used at every terminal 13 Pollard, at the second meeting, similarly declined to pay premium rates for "overtime ." Pollard recalled: We pointed out to the Union that we customarily do not do that, . . . if we were to pay time and a half . . . we would necessarily cut the employees off at that point ... . Thus, the Overnite employees "enjoyed the opportunity to get the extra hours even though it may be at a straight rate ...." On "seniority," Pollard explained that the Company "did not lay off people as such . . . employees were terminated, their benefits were terminated except where an employee may be hired back within a period of time that corresponds to his length of service . . . [and] the Company's plan provided for Company-wide seniori- ty ...." On "subcontracting," the Employer "wanted to retain the right . . . when the needs demanded it ++ 14 The Employer, as stated, presented its "proposal for an overall contract" at the third meeting. Pollard was asked : "Were some of these items that the Company had '3 As noted , the Union ultimately offered to accept the Employer's system "rate " 14 On "grievance-arbitration" procedures, Pollard recalled that the Company had "no formal procedure ." The Company did present the Union with a "proposal " on this subject. (See G C Exh 12) The Com- pany opposed "binding arbitration"-"entrusting that sort of responsibil- ity to someone who has no interest in or real concern for the welfare of the Company or the employees .." As noted , at the fifth session, after the Employer had presented a counterproposal on this subject, the Union "gave up its demand for final and binding arbitration or any griev- ance procedure whatsoever" OVERNITE TRANSPORTATION CO. [proposed] not heretofore had as practices?" Pollard re- sponded: The grievance procedure was one. We agreed to an alcohol rehabilitation plan . . . . Those are the two that come to mind, but I think there are several others in there. Pollard recalled the fourth or fifth meeting of the parties, where Charone ultimately pressed him for a "final offer." Pollard, as he testified, told him [Charone] that I could not say to him that we would never be unwilling to agree to more than we had proposed on the table . . . but . . . at that point that our proposal is what we were willing to do. .. . On cross-examination, Pollard acknowledged that the Company's "arbitration proposal" was for "limited arbi- tration"-"the parties would have to agree on a case-by- case basis whether an issue would be submitted to arbi- tration . . . ." If the company "members chose not to send" a grievance to arbitration, "it wouldn't go . . . we [the Company] gave them the right to strike in that eventuality." Pollard insisted that the Company, at the negotiations, "had an open mind" and "no pre-fixed posi- tions." Pollard was referred to the text of Company Vice President Edwards' speech (R. Exh. 1, p. 3), which re- cites, in effect, "we are definitely opposed to any ar- rangement in which it is necessary for anyone to belong to the Teamsters Union or any other Union in order to work for the Company"-"... this is a stand we take on this matter and there is no changing this position or policy . . . ." Pollard responded that this "appears to be the opinion of the person delivering the talk." Pollard acknowledged that his law firm had prepared Respond- ent's Exhibit 1 and Edwards was a "spokesman" for his Company. Salvatore Tenuta, business representative for the Union, testified on rebuttal that no union representative had stated at the last bargaining session that "you were back at square one" or "were back to the [the Union's] original proposal ...." 15 Discussion The General Counsel argues that Respondent Employ- er, in opposing the Union 's organizational campaign at its Chicago terminal, violated Section 8(a)(1) of the Act by threatening its employees that it would never sign a con- 'S The testimony summarized above is in the large part undisputed There are, however, some conflicts between Charone's recollection of what transpired at the six bargaining sessions and Pollard's recollection of what transpired at these same sessions Charone , in his testimony, detailed the sequence of events at each of the six sessions . His testimony was cor- roborated in part by the testimony of Tenuta, and was substantiated by documentary evidence and , in part, by the testimony of Pollard Charone, on cross-examination, candidly and fully explained the bargaining chro- nology. Pollard 's testimony, on the other hand, at times seemed confusing and incomplete On cross-examination , Pollard. when pressed concerning his client's bargaining positions, appeared evasive, contradictory and less than candid in his explanations. On this entire record , including the de- meanor of the witnesses, I credit the above recited testimony of Charone, corroborated in part by Tenuta , as more complete, reliable and trustwor- thy than the testimony of Pollard 685 tract with the Union ; the employees would lose existing benefits ; they would lose their jobs; the Employer would go out of business and close its terminal ; and the Em- ployer would take related reprisals against the employees if they chose union representation . Following a Board- conducted representation election , the Employer, it is al- leged, further violated Section 8(a)(1) by coercively in- terrogating employees about their protected union activi- ties. Respondent Employer denies that it engaged in the coercive speech and conduct alleged in the amended complaint and, in addition, argues that its statements to the employees, in opposing union representation , consti- tute privileged "speech" under Section 8(c) of the Act. The controlling legal principles have been restated many times. Thus, Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, re- strain or coerce employees" in the exercise of their right to self-organization. Section 8(c), in turn, provides: The expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression con- tains no threat of reprisal or force or promise of benefit. Read together, these provisions leave an employer free to communicate to his employees his views respecting unions, so long as that communication does not contain a "threat of reprisal or force or promise of benefit." The Supreme Court stated in NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620 (1969): Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the em- ployees to associate freely as those rights are em- bodied in Section 7 and protected by Section 8(a)(1) and the proviso to Section 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former , because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. [An] employer is free only to tell "what he rea- sonably believes will be the likely economic conse- quences of unionization that are outside his con- trol," and not "threats of economic reprisal to be taken solely on his own volition." NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2, 1967) And see Surprenant Mfg. Co. v. NLRB, 341 F.2d 756, 761 (6th Cir. 1965); NLRB v. Miller, 341 F.2d 870, 873 (2d Cir. 1965); Electrical Workers v. NLRB, 289 F.2d 757, 763 (D.C. Cir. 1960); NLRB v. Kolmar Laboratories, 387 F.2d 833, 836-838 (7th Cir. 1967); NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 702-703 (8th Cir. 1967). The Supreme Court further noted in Gissel, supra, 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [A]n employer . . . cannot be heard to complain that he is without adequate guide for his behavior. .He can easily make his views known without en- gaging in "brinkmanship" when it becomes all too easy to "overstep and tumble into the brink," Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (C.A. 7, 1967). At least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees. And, as the Board later explained in Amerace Corp., 217 NLRB 850, 852 (1975): In arguing against unionism , an employer is free to discuss rationally the potency of strikes as a weapon and the effectiveness of the union seeking to represent his employees . It is, however, a differ- ent matter when the employer leads the employees to believe that they must strike in order to get con- cessions. A major presupposition of the concept of collective bargaining is that minds can be changed by discussion , and that skilled , rational, cogent ar- gument can produce change without the necessity for striking . When an employer frames the issues of whether or not the employees should vote for a union purely in terms of what a strike might accom- plish, he demonstrates an attitude of predetermina- tion that bargaining itself will accomplish nothing. Employees should not be led to believe, before voting, that their choice is simply between no union or striking. Also see Louis Gallet, Inc., 247 NLRB 63 (1980), and cases discussed. The credited evidence of record , as detailed supra, makes it clear here that Management, in opposing the Union's campaign at its Chicago terminal, resorted to proscribed threats and coercive conduct, in plain viola- tion of Section 8(a)(1) of the Act. The employees were notified in writing by upper Management that the Union "has been trying for nearly 40 years" to organize its em- ployees; "there is no terminal of this Company where the Union represents the employees"; and they should "think about how it would be to work at the only terminal in this Company that is organized." Employee Roberts cre- dibly recalled how Company Vice President Edwards, during his preelection speeches, admonished the assem- bled employees: "if we were to join a Union ... we would not foresee any better benefits because of a Union"; "the Company was not Union , would never be Union and never had any intentions to be Union . . . the Company would resist any Union pressure . . ."; "other companies that are Union have been . . . folding up and would we want that to happen at our Company"; "think of our families and of our jobs"; "absolutely they would not sign a contract with any Union." Employee Roberts credibly recalled Company Board Chairman Cochrane, in like vein, telling the assembled employees: "to please save our jobs and his job too by not joining a Union." Employee Phillips credibly related how Edwards warned the assembled employees: "he was not going to sign a contract" and "he would do everything in his ex- treme power to keep the Union out of the Chicago system." Phillips also credibly recalled Cochrane warn- ing the workers : "save your job and save my job"; "vote no at the election." And, employee Garcia credibly re- called Edwards stating to the employees : "this Company has never been and never will be Union . . . he would never deal or sign a contract with the Teamsters"; "other companies . . . that did bring the Union in have closed . . . their doors . . . I am sure that you drivers don't want that to happen . . . ." Employee Garcia also credibly recalled how Cochrane explained to the assem- bled workers why "he would never deal with a Union again." Employee Mendoza credibly testified that Edwards threatened the assembled drivers that "the Company was going to close the doors if we voted for the Union . .. , "the Company would not sign a contract or have any- thing else to do with the Union." Employee Mendoza also credibly witnessed Cochrane warn the drivers "to save our jobs, not to vote for the Union ." And, employ- ee Thelan credibly testified how Edwards admonished the assembled drivers: "we would never be making Union scale"; "if he had to, he would close down the terminal before turning Union"; "he would not sign a contract"; "they were not about to negotiate with the Union." Moreover, an examination of the typewritten textual material (G.C. Exhs. 6 and 7; R. Exhs. 1 and 2 ), which Respondent Employer claims it related to its employees during the campaign, similarly discloses proscribed threats, in violation of Section 8(a)(1) of the Act. Thus, the employees were repeatedly warned that union repre- sentation, in effect, would mean "strikes, lost work, lost pay, lost jobs, debt and regret, bitterness and misery"; the employees would no longer be "treat[ed] with digni- ty and respect"; "the new attitude necessarily forced upon us would be `how little can we get by with giving these employees who are represented by this Union' "• "we would have every legal right to bargain for a reduction in all phases of wages and fringe benefits .. . Overnite would not hesitate to bargain in that fashion"; union representation "usually brings friction and dissen- sion and serious trouble for all concerned"; "we are defi- nitely opposed to any arrangement in which it is neces- sary for anybody to belong to the Teamsters Union .. . in order to work for this Company . . . . This is the stand we take on this matter and there will be no chang- ing in this position and this policy" ; "no such thing [ob- taining $13 per hour or Union scale ] will happen" "I will guarantee you . . ."; "we have no intention of yielding to any sort of strike pressure"; "it is that sort of people who through their powerful unions have pushed their employers into financial ruin and bankruptcy"; "the Union could not force this Company to do anything that it does not consider to be reasonable or practical ... . Of course the Union can try to bring pressure . . . by pulling you out on strike . . . it is definitely the right of the Company to fill the jobs of those who see fit to go out on strike . . . [and those strikers] have no right auto- matically to return . . ."; "you have all seen what the Teamsters have done to unionized companies-the dilapi- dated and obsolete equipment , run-down terminals, thou- OVERNITE TRANSPORTATION CO. sands of employees without jobs . . . and in the end fi- nancial disaster . . ."; "you now have the individual right and freedom to come in and settle with us personal- ly any problems you may have . . . but if this Union were to get in, this freedom and this right . . . would definitely be taken away from you ..."; "you stand to lose if this Union were to get in here." Management, by the above statements, was clearly threatening the employees with terminal closings, loss of jobs, loss of existing benefits and related reprisals if they voted for the Union. Management, at the same time, made clear to the employees that it would not negotiate with or sign a contract with the Union. Management, in- stead, repeatedly warned of "strikes, lost work, lost pay, lost jobs, debt and regret, bitterness and misery." Such statements cannot reasonably be regarded on this record as "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control ...." Gissel Packing Co., supra. The Union, at the time of these statements, had made no contractual demands on the Employer and, as the Employer elsewhere acknowledged (R. Exh. 2, pp. 3-4), ". . . the Union has been agreeing to very sub- stantial reductions in pay and benefits . ..." The Em- ployer had every reason to believe , during the campaign, that the Teamsters Union would engage in the ordinary give and take of bargaining, including the making of con- cessions, and not resort to and bring about strikes and the enumerated litany of related dire consequences. In fact, as discussed below, the Teamsters Union, through- out the ensuing bargaining sessions , repeatedly offered substantial concessions from its initial proposals . In sum, Respondent, by the above statements, threatened, co- erced and restrained its employees , in violation of Sec- tion 8(a)(1) of the Act, as alleged in the amended com- plaint. In addition, it is uncontroverted here that Company Supervisor Sorice questioned employee Mendoza in the terminal parking lot about his views on union representa- tion. Sorice, at the same time, admonished Mendoza that upper management "would not sign a Union contract" and "was going to fight the Union as long as he can .. " It is also uncontroverted here that Supervisor Knepp summoned employee Thelan to his office and there pointedly pressed the employee to reveal the bottom line bargaining demands of the employees. These repeated unwarranted attempts to pry into protected union activities, coupled with management's stated oppo- sition to unionization and threats of reprisals , constitute the kind of coercive interrogation proscribed by Section 8(a)(1) of the Act. See NLRB Y. Gladding Keystone Corp., 435 F.2d 129, 132-133 (2d Cir. 1970), and NLRB v. Nov- elty Products Co., 424 F.2d 748, 751 (2d Cir. 1970).16 16 Counsel for Respondent moved at the hearing to strike the 8(a)(I) allegations of coercive speech and conduct in the amended complaint Counsel for Respondent contended that the 8 (a)(1) allegations of the amended complaint were not sufficiently related to the unfair labor prac- tice charge filed herein and, in addition , were barred at least in part by the 6-month time limitation of Sec 10(b) of the Act See Tr pp. 9-16 The motion was denied See Tr pp 16-19, 174, and 189 Upon reconsid- eration, I adhere to that ruling Respondent 's preelection coercive speech, its postelection coercive interrogation and, as discussed below, its subse- quent refusal to bargain in good faith with the certified Union are all part 687 The General Counsel next contends that Respondent Employer, following the Union's certification as bargain- ing agent of an appropriate unit of the Chicago terminal employees," violated Section 8(a)(5) of the Act by en- gaging in proscribed "surface bargaining." The General Counsel argues that Respondent Employer "entered into negotiations with no intention of reaching an agreement ...." (Br. p. 27.) Respondent Employer argues (Br. pp. 7-11): The Company did all it was obligated to do, and the absence of an agreement . . . is due solely to a failure by the Union to persuade, not a refusal by the Company to be persuaded. The controlling legal principles here too have been re- stated many times. Thus, in NLRB v. General Electric Co., 418 F.2d 736, 762 (2d Cir. 1969), cert. denied 397 U.S. 965 (1990), the court stated: [T]he statute clearly contemplates that to the end of encouraging productive bargaining, the parties must make "a serious attempt to resolve differences and reach a common ground," NLRB v. Insurance Agents' Int'1 Union, 361 U.S. 477, 487, 488 (1960), an effort inconsistent with a "predetermined resolve not to budge from an initial position." NLRB v. Truitt Mfg. Co., 351 U.S. 149, 154-155 (1956) (Frankfurter J., concurring). A pattern of conduct by which one party makes it virtually impossible for him to respond to the other-knowing that he is doing so deliberately- should be condemned by the same rationale that prohibits "going through the motions" with a "pre- determined resolve not to budge from an initial po- sition." See NLRB v. Truitt Mfg. Co., supra (con- curring opinion). In NLRB v. Herman Sausage Co., 275 F.2d 229, 231-232 (5th Cir. 1960), the court stated: The obligation of the employer to bargain in good faith does not require the yielding of positions fairly maintained. It does not permit the Board, under the guise of a finding of bad faith, to require the employer to contract in a way the Board might deem proper. Nor may the Board "directly or indi- rectly compel concessions or otherwise sit in judg- ment upon the substantive terms of collective bar- gaining agreements" for the Act does not "regulate the substantive terms governing wages, hours and working conditions which are incorporated in an agreement." of one course of conduct here plainly calculated to frustrate and defeat the employees in their attempt to exercise their rights guaranteed in Sec. 7 of the Act. The 8(a)(1) and 8(a)(5) violations alleged here are therefore sufficiently related and , further, are not time-barred as claimed by Re- spondent . See, e g , NLRB Y Allen's IGA Foodliner, 651 F 2d 438 (6th Cir. 1981). 11 The Employer does not, in this proceeding, "contest the unit deter- mination " (See Tr. pp 25-26.) 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the other hand, while the employer is assured these valuable rights, he may not use them as a cloak. In approaching it from this vantage, one must recognize as well that bad faith is prohibited though done with sophistication and finesse. The Board later explained in Borg-Warner Controls, 198 NLRB 726 (1972): The issue is not, as respondent suggests, that re- spondent did not make enough concessions. Rather, the issue is whether respondent's approach to bar- gaining demonstrated an unyielding rigidity during negotiations which made collective bargaining a fu- tility. Respondent's unyielding rigidity is clearly es- tablished both in terms of respondent's substantive proposals and its conduct relative to the procedural considerations of bargaining. Accordingly, the totality of respondent's conduct during its bargaining compels the conclusion that respondent only went through the elaborate mo- tions of bargaining and adapted its tactics to its own ends with no sincere desire of reaching an agree- ment. And, the Board similarly reasoned in American Steel Building Co., 208 NLRB 900, 910 (1974): [R]espondent made no significant concession toward granting the employees any job security or econom- ic benefit. While respondent's representatives denied having verbalized a determination not to agree to any significant changes in existing terms and condi- tions of employment, the course of their bargaining eloquently and unmistakably conveyed that mes- sage. Under respondent's purported contract pro- posals, the employees would have secured no sub- stantial benefit. On the contrary, in some major re- spects they would have been worse off with re- spondent's proposed contract than without any con- tract. For example, while the employees would have renounced all right to strike, respondent would have retained "the unrestricted right and privilege to suspend, transfer, cease, relocate or resume, at its discretion, the operation of its busi- ness, or any part thereof" and "the right to subcon- tract any work or job." Without a contract, the union would have been entitled to negotiate on such matters and if necessary to strike. Without a con- tract, the union could strike for higher wages, whereas respondent offered no general wage in- creases and proposed a contractual agreement that individual increases could not be considered "dis- criminatory." Also see A-I King Size Sandwiches, 265 NLRB 850 (1982); American Parts System, 232 NLRB 41 (1977); and cases cited. In brief, as restated in A-1 King Size Sand- wiches, supra, The question here is whether the evidence adduced by General Counsel, consisting primarily of re- spondent's bargaining proposals and positions, but also viewed in the light of statements indicative of respondent's attitude toward collective bargaining, is sufficient to establish that respondent entered into bargaining with no real intention of concluding a final and binding collective bargaining agreement. As found supra, Respondent Employer, in opposing the Union's organizational drive at its Chicago terminal, threatened and warned its employees that the Company "was not Union, would never be Union and never had any intentions to be Union . . ."; "absolutely they would not sign a contract with any Union"; the Company "would never deal or sign a contract with the Team- sters"; the employees "would never be making" union scale; "they were not about to negotiate with the Union"; "the new attitude necessarily forced upon us would be how little can we get by with giving these em- ployees who are represented by this Union"; Overnite "would not hesitate to bargain . . . for a reduction in all phases of wages and fringe benefits . . ."; the Company "is definitely opposed to any arrangement in which it is necessary for anybody to belong to the Teamsters Union ... there will be no changing in this position and this policy"; "You stand to lose if this Union were to get in here"; the employees would no longer be "treat[ed] with dignity and respect"; the union-represented employees "definitely" will not "get benefits and advantages over other employees." Following certification of the Union as bargaining agent for the Chicago terminal employees, Respondent Employer persisted in this adamant and rigid opposition to union representation and the collective-bar- gaining process. Thus, as discussed below, although the Employer attended six bargaining sessions with the Union, it was not dealing with the Union in a serious at- tempt to resolve differences between the parties and thus reach a common ground; instead, the Employer ap- proached bargaining with the same antiunion rigidity and hostility previously announced; the Employer, as it warned, had no intention of reaching any agreement here; the Employer was "giving the Union the run- around while purporting to be meeting the Union for purposes of collective bargaining." NLRB v. Herman Sausage Co., supra. As Union Negotiator Charone credibly testified, the parties, at the first two bargaining sessions, examined the Union's detailed written proposals. With respect to the proposed "Union shop provisions" and "check-off," the Employer "didn't think it was their business of what the Union did in getting members ..."; and "the Company would not agree to any check-off of any sort." The Em- ployer, however, admittedly allowed employees to check off payments for insurance premiums, stock option plan, savings plan and cost of uniforms. On the Union's pro- posed "cost of living" and "overtime" provisions, the Company made clear that these benefits were not avail- able "throughout their system." On the Union's proposed "seniority" provisions, the Employer did not "have layoff as such"; an employee "would just be terminated"; and the Employer "wouldn't agree to" change its exist- ing systemwide practice. On the Union's proposed "grievance-arbitration" provision, the Employer also made clear that, in effect, it "didn't believe in binding ar- OVERNITE TRANSPORTATION CO. bitration"-"if we couldn't reach an agreement over a [particular] grievance . . . the Union would have the right to strike." Likewise, the Employer insisted on its systemwide health and welfare and pension plans, instead of those proposed by the Union. On "wages," the Em- ployer made clear that it would only propose its existing systemwide rate. Further, as Union Negotiator Charone recalled, the Employer said "no" to the Union's propos- al, which, in effect, "provides that by signing the agree- ment no one is losing any benefits they have . .. . Union Negotiator Pollard explained that, on the con- trary, the Company "was going to suggest a zipper clause." The Union, throughout these first two sessions, demonstrated that it was willing to accept various sys- temwide practices of the Employer and thus give up, for example, its proposed probationary period, funeral leave, sick leave and holiday provisions. At the third session, the Employer presented its writ- ten proposal. After reviewing this proposal, the union negotiators noted: All you have given us is what Company policy is ... you haven't given us a thing . . . there is noth- ing new in this whole thing . . . I don't know how we can agree with what you have given us ... . Company Negotiator Pollard-when asked to identify those "items" proposed by the Company which were not Company systemwide "practices"-could only identify its "limited arbitration" proposal, which enabled the Union to strike over deadlocked individual grievances, and an "alcohol rehabilitation plan." The Union nevertheless requested a fourth meeting. It then advanced an 11-point proposal containing, inter alia, a substantial reduction in its wage "scale" and a "mainte- nance of membership" provision. Again, the Employer restated its reservations . Pollard "stated that we believe very strongly that the Company should remain neutral in these matters ...." However, as Company President Edwards had earlier warned: "We are definitely opposed to any arrangement in which it is necessary for anybody to belong to the Teamsters Union . . . There will be no changing in this position and policy ...." In effect, the Employer was opposed to union security and checkoff because of its adamant antiunion position and not, as Pol- lard incredibly asserted, because the employees may regard voluntary checkoff as an "economic item." The Union requested a fifth meeting. There, it an- nounced a willingness to concede all of its proposals and to accept instead the Employer's systemwide proposals, except for the Union's proposed health and welfare and pension plans and proposed overtime payment. Again, the Employer restated its rejections. The Employer as- sertedly had not been "persuaded" or "convinced" of the merit of the Union's substantially reduced and modified proposals. The sixth meeting, also requested by the Union, similarly produced no further movement on the part of the Employer. A careful examination of the Employer's proposed contract makes it "difficult to believe that the Company with a straight face and in good faith could have sup- posed that this proposal had the slightest chance of ac- 689 ceptance by a self-respecting union, or even that it might advance the negotiations by affording a basis of discus- sion; rather, it looks more like a stalling tactic by a party bent upon maintaining the pretense of bargaining." Cf. NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953). Thus, here, as in American Steel, supra, "under respondent's purport- ed contract proposals, the employees would have se- cured no substantial benefit. On the contrary, in some major respects they would have been worse off ... . The employees would, in effect, be giving up their right to strike and, under the so-called "zipper clause," would be agreeing that "there shall be no further negotiations ... during the life of this contract regardless of whether the subject matter has been previously discussed or not or whether either party has withdrawn any of its propos- als or waived its right to discuss them further." In sum, I find and conclude here that Respondent Em- ployer failed and refused to bargain in good faith, as al- leged in the amended complaint. It presented proposals which it understood would not be accepted by the Union. It rigidly rejected repeated efforts by the Union to compromise the differences of the parties. It had no intention of reaching an agreement with the Union, as it had threatened earlier. In short, the Employer "showed a rigidity so intense as to warrant an inference that [it] was seeking the avoidance rather than the obtaining of an agreement" in plain violation of Section 8(a)(5) and (1) of the Act. See Borg-Warner Controls, supra. CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce as alleged. 2. Charging Party Union is a labor organization as al- leged. 3. The Union is the certified bargaining agent for the Company's employees in the following appropriate unit: All local drivers employed by Respondent at its fa- cility now located at 7526 South State Road, Bed- ford Park, Illinois, but excluding all office clerical employees, guards and supervisors as defined in the Act, and all other employees. 4. Respondent Company violated Section 8(a)(1) of the Act by stating to employees, during the Union's organi- zational drive, that it would never sign a union contract; threatening employees that it would close its terminal before becoming unionized; threatening employees with loss of jobs if they became unionized; threatening em- ployees with loss of their right to bring grievances to the attention of management if they became unionized; threatening employees that it would go out of business if they became unionized; threatening employees with other reprisals if they became unionized; and, later, coer- cively interrogating employees about their protected union activities and interests. 5. Respondent Company violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain in good faith with the Union, as the bargaining agent of its em- ployees in the appropriate unit described above, by refus- ing to consider union security and dues-checkoff propos- 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD als in any form; refusing to consider wage proposals in excess of wages paid uniformly throughout the Employ- er's business to its unrepresented employees ; refusing to consider mandatory arbitration of grievance proposals; refusing to consider any significant variations from exist- ing terms and conditions of employment ; and its overall acts and conduct during the bargaining sessions and meetings of the parties. 6. The unfair labor practices found above affect com- merce as alleged. REMEDY Having found that Respondent engaged in the unfair labor practices as set forth above, I recommend that it cease and desist from engaging in such conduct, like and related conduct, and take certain affirmative action de- signed to effectuate the policies of the Act. I also recom- mend that Respondent be ordered to bargain collectively and in good faith, upon request, with the Union as the exclusive bargaining representative of its employees in the unit set forth above; in the event that an understand- ing is reached, to embody such understanding in a signed agreement; and to post the attached notice. In order to ensure that the employees will be accorded the statutorily prescribed services of their selected bar- gaining agent for the period provided by law, I recom- mend that the initial year of certification begin on the date that Respondent commences to bargain in good faith with the Union as the bargaining representative in the appropriate unit. Southern Paper Box Co., 193 NLRB 881, 883 (1973).18 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 a Counsel for Charging Party Union argues (Br p 9) While not charged with a specific violation for having deprived the Local 705 men of the 35 cents wage increase, we submit that the res- toration of the wage increase is a meaningful Section 8(a)(5) remedy Unless the employees are made whole for their 10 months loss of the 35 cents increase, the Company would be rewarded for engaging in surface bargaining by depriving the employees represented by Local 705 of the increase which [has] been received by every other [em- ployee] The General Counsel did not allege this specific violation and does not now argue such a violation or request this remedy I note also that no 8(a)(3) charge or allegation pertaining to this failure or refusal to grant this increase to the unit personnel retroactively has been filed Under all the circumstances , I do not regard this issue as sufficiently alleged or liti- gated here to permit the consideration of this remedy Cf Rochester Insti- tute of Technology, 264 NLRB 1020 ( 1982) And , as noted above, no charge or allegation of unilateral action or discrimination has been made here Cf South Shore Hospital, 245 NLRB 848, 860-862 fn 25 (1979), enfd 630 F 2d 40 fn 7 ( 1st Cir 1980) Counsel for the Union also generally argues that Respondent be or- dered to pay here attorneys fees and costs The record in this case does not, in my view, warrant the granting of this extraordinary remedy Cf J. P Stevens & Co, 247 NLRB 420 (1980) 19 If no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections them shall be deemed waived for all purposes ORDER The Respondent , Overnite Transportation Company, Bedford Park, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling its employees that it will never sign a union contract; and threatening its employees with loss of jobs, terminal closings, going out of business , loss of their right to bring grievances to the attention of Management and related reprisals if they became unionized. (b) Coercively interrogating employees about their protected union activities. (c) Refusing to bargain collectively and in good faith concerning rates of pay, hours of employment and other terms and conditions of employment with Truck Drivers, Oil Drivers, Filing Station & Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of its employees in the fol- lowing appropriate unit: All local drivers employed by Respondent at its fa- cility now located at 7526 South State Road, Bed- ford Park, Illinois, but excluding all office clerical employees, guards and supervisors as defined in the Act, and all other employees. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affrimative action necessary to effectuate the policies of the Act. (a) On request, bargain collectively and in good faith concerning rate of pay, hours of employment, and other terms and conditions of employment with the above- named Union, as the exclusive representative of its em- ployees in said unit, and embody in a signed agreement any understanding reached. (b) Post at its facility in Chicago, Illinois, copies of the attached notice marked "Appendix"20 Copies of said notice, on forms provided by the Regional Director for Region 13, after being signed by Respondent's authorized representative, shall be posted by 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this order what steps Respondent has taken to comply. 20 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."