Anaheim Plastics, Inc.

ANAHEIM PLASTICS 79 Anaheim Plastics, Inc. and Local 1010, Furniture Workers Division of the International Union of Electronic, Electrical, Salaried, Machine, and Furniture Workers, AFL-CIO.' Cases 21-CA- 24406 and 21-CA-24648 July 16, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 15, 1988, Administrative Law Judge David G Heilbrun issued the attached decision The General Counsel and the Respondent filed ex- ceptions, supporting briefs, and briefs in answer to exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified and to adopt the recom- mended Order as modified 2 This case concerns issues arising from collective- bargaining negotiations that took place from Sep- tember 26, 1985, to July 30, 1986, and a strike of the Respondent's unit employees from January 21 to March 17, 1986 During the strike the Respond- ent continued operation of its plant using tempo- rary replacements The Union made an uncondi- tional offer to return to work on behalf of the strik- ing employees on March 17 The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by failmg to rein- state certain strikers until after March 28, 1986 3 On January 1, 1987, the United Furniture Workers of America, AFL-CIO, merged with the International Union of Electronic, Electri- cal, Salaried, Machine, and Furniture Workers, AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The judge found that the Respondent violated Sec 8(aX1) by Vice President Fien's statement to employees that their wages would be re- duced if another strike occurred and by Supervisor Moroneso's statement to a reinstated stnker that if she went on another strike she would not be given work again The judge inadvertently faded to include these viola- tions in his recommended Order and notice We shall modify the Order and issue a new nonce to correct this omission 'The judge also found that the Respondent violated Sec 8(aX3) and (1) by paying a $10-per-day bonus to certain employees who worked during the strike No exceptions were filed to this finding The judge fur- ther found, in sec II,J,4,b of his decision, that the payment of the bo- nuses did not convert the employees' economic stnke Into an unfair labor practice strike We find it unnecessary to pass on this finding Because the strikers were not permanently replaced, their reinstatement rights would have been the same, regardless of whether they were economic strikers or unfair labor practice strikers Cf, , e g, Hansen Bros Enter- pnses, 279 NLRB 741 (1986), enfd mem 812 F 2d 1443 (DC Or 1987) (economic strikers not permanently replaced entitled to immediate rein- statement), Medallion Kitchens, 275 NLRB 58 (1985), enfd 806 F 2d 185 (8th Cu. 1986) (same) The judge found no violation, however, regarding strikers who were reinstated on or before March 28 4 The judge also dismissed an allegation that the Respondent violated Section 8(a)(5) and (1) of the Act in the contract negotiations by failing to bar- gain in good faith 5 In adopting the judge's conclusion that the Re- spondent violated Section 8(a)(3) and (1) by failing to reinstate certain strikers until after March 28, we agree, but only for the following reasons, with his conclusion that Indiana Ready Mix Corp, 141 NLRB 651 (1963), does not support a finding that the Union's offer to return to work was not uncon- ditional In Indiana Ready Mix, the employer, in response to the union's October 13 offer to end a strike, stated that it could not resume operations without at least a 60-day no-strike guarantee In reply, the union on October 14 counteroffered writing a no-strike guarantee for a 30-day period of negotiations The Board construed the union's Oc- tober 14 proposal, which the union renewed in writing on October 17, as substituting for the Octo- ber 13 proposal and as offering only a 30-day res- pite in the strike rather than an unconditional return to work The facts in the present case are markedly differ- ent Here, the Union on March 17 gave the Re- spondent written and oral unconditional offers to return to work The subject of a no-strike guaran- tee was first raised by the Respondent during bar- gaining on March 24, after some of the strikers had been reinstated The Union flatly rejected the Re- spondent's repeated demands for such a guarantee Thus, unlike Indiana Ready Mix, the Union's offer to return to work in this case placed no time limita- tion on the employees' return to work, the Re- spondent did not raise the subject of a no-strike guarantee until after it had reinstated some strikers, and, once the subject was raised, the Union de- clined to offer any no-stnke guarantee According- ly, Indiana Ready Mix is wholly inapposite, and the Union's refusal to offer a no-stnke guarantee did not convert its unconditional offer to return to work into a conditional one Compare Brooks, Inc , 228 NLRB 1365, 1368 fn 14 (1977) (distinguishing Indiana Ready Mix) 6 4 In adopting this conclusion, we do not rely on the judge's alternative rationale that an agreement Into which the Respondent had entered set- tling one of the unfair labor practice charges privileged the Respondent to defer reinstating the strikers In any event, approval of the settlement agreement was withdrawn on June 25, 1986 We affirm this dismissal and thus find it unnecessary to pass on the judge's alternative finding, in sec II,J,4,a of his decision, that even if the Respondent had faded to bargain in good faith, the strike would not have been an unfair labor practice strike a In agreeing that Indiana Ready Mix is distinguishable from the instant case, we find it unnecessary to pass on the merits of the Board's decision in that case 299 NLRB No 14 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Additionally, we reject the Respondent's argu- ment that its backpay liability was tolled on March 24 because it stated to the Union during contract negotiations on that date (and again on March 26) that the Union should have all the strikers who had not been reinstated report to the plant and they would be put back to work In some contexts, an employer may be found to have discharged its duty to offer reinstatement to strikers by conveying its offer to the union as their agent See Coca-Cola Co of Memphis, 269 NLRB 1101, 1109 (1984), Birming- ham Ornamental Iron Go, 251 NLRB 814 fn 1 (1980) In this case, however, we find it unwarrant- ed to give such an effect to the Respondent's bar- gaining table statements on March 24 and 26 On March 17, when the Union made its uncondi- tional offer to return to work, a large group of former strikers appeared at the plant to seek rein- statement They were told by the Respondent that they would not be reinstated that day but should report to the plant on March 19 When they re- ported for work at the beginning of each shift on March 19, however, only a few were offered work, and the rest were told to report the following day When they reported the following day, the same thing occurred—only a few were put back to work, and the rest were told to come back the next day This sequence of events was repeated each workday, continuing into the following week The Respondent made no effort to institute an orderly procedure of notifying former strikers to report when jobs were actually available for them Rather, it used only this system of repeated daily "show-ups" of all employees seeking reinstatement, from which it selected only a few When, on March 24 and 26, the Respondent's representative stated at the bargaining table that all unremstated strikers should report to the plant and they would be put back to work, the credibility of this state- ment had been undermined by the Respondent's re- peated failure to put back to work former strikers who, at the Respondent's direction, had already re- ported for work Under these circumstances, we find that the Respondent's bargaining table state- ments concerning reinstatement cannot reasonably be regarded as having discharged the Respondent's duty to offer reinstatement to the former strikers ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Anaheim Plastics, Inc , Anaheim, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs "(a) Threatening employees that their wages will be reduced or that they will not be given work again if another strike occurs" 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 Section 7 of the Act gives employees these nghts To form, join, or assist any umon To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT threaten employees that their wages will be reduced or that they will not be given work again if another strike occurs WE WILL NOT award preference in terms and conditions of employment by payment of a $10- per-day bonus only to our employees who do not engage in, or abandon, a strike, lawfully called by Local 1010 of the Furniture Workers Division, International Union of Electronic, Electrical, Sala- ried, Machine, and Furniture Workers, AFL-CIO, or any other labor organization WE WILL NOT discriminate against former stnk- ers by failing and refusing to make timely reinstate- ments after they have unconditionally applied to return to work 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 make whole Alicia Arellano, Celina Bahena, Guillermma Martin del Campo, Graciela Lucatero, Angel Menthols, Conrado Toledo Meza, Josefina Munoz, Celia Perez, Ana Ramirez, Rafael Ramirez, Rosio Robledo, Angel Santana, Juana de la Torre, Maria E Torres, and Alicia Vargas by paying them back wages plus interest ANAHEIM PLASTICS, INC ANAHEIM PLASTICS 81 Robert H Murray and Joel B Martinez, for the General Counsel Herbert A Moss, of Santa Ana, California, for the Re- spondent George Rothman, of Nashville, Tennessee, for the Charg- ing Party DECISION STATEMENT OF THE CASE DAVID G HEILBRUN, Administrative Law Judge This case was heard at locations in Fullerton and Santa Ana, California, over a course of 17 trial days spanning 25 February 1987-13 August 1987, inclusive Charges on which the proceeding was based were filed 6 January and 25 April 1986 (amended 25 June 1986) by United In- dustnal Workers of the United Furniture Workers of America, Local 1010, AFL-CIO (the Union) After earli- er consolidation of cases, an amended consolidated com- plaint was issued 14 November 1986 The primary issues are whether Anaheim Plastics, Inc (Respondent), failed to engage in a course of good-faith bargaining, failed and refused to offer reinstatement to 33 named striking em- ployees, awarded monetary preference in terms and con- ditions of employment to persons not engaging in or abandoning a strike, and threatened employees with loss of wages and employment because of engaging in a strike, in violation of Section 8(a)(5), (3), and (1) of the National Labor Relations Act, respectively, and whether a strike of employees was caused and prolonged by unfair labor practices of Respondent, or was converted from an economic strike to an unfair labor practice strike On the entire record, including my observation of the demeanor of witnesses, and after consideration of briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent, a California corporation, manufactures plastic products at its facility in Anaheim, California, where it annually ships goods valued in excess of $50,000 directly outside the State Respondent admits, and I find, that it is an employer engaged m commerce within the meaning of Section 2(6) and (7) of the Act I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act 1 II ALLEGED UNFAIR LABOR PRACTICES A Case Outline Respondent's business comprises a small factory where plastic hangers are produced on a three-shift operation, utilizing a predominantly Spanish-speaking work force On 12 August 1985 the Union was certified as exclusive By a merger which was effective 1 January 1987 the Union is now Local 1010, Furniture Workers Division of the International Union of Electronic, Electncal, Salaried, Machine, and Furniture Workers, AFL- CIO collective-bargaining representative for a production and maintenance unit of employees with standard exclu- sions 2 Formal contract bargaining commenced in September and continued for an additional seven sessions through late January Following the eighth session an authorized strike of practically all represented employees began, commencing with the afternoon shift on 21 January Re- spondent continued to operate with the use of temporary replacements The strike continued for approximately 2 months, during which one formal bargaining session occurred The Umon ended its strike in mid-March by written noti- fication to Respondent, embodying advice that all strik- ing employees would immediately report back Numer- ous former strikers were reinstated during that first workweek, and additional formal bargaining sessions were held in late March By the end of March reinstatement had been fulfilled as to all but a particular number of former strikers whose rights and status are at issue Two further bargaining ses- sions were held during April, and a final set of two ses- sions occurred in July B Case Participants The Union's chief negotiator was George Rothman, a Nashville, Tennessee-based official who principally serves as director of the United Furniture Workers In- surance and Pension Funds He is experienced in collec- tive bargaining, including negotiations for initial con- tracts Rothman was specifically requested to represent this certified local by the International Union's president The person next most authoritatively involved for the Umon was Cynthia Requejo, its business manager She is experienced in collective bargaining as a lead negotiator for contract renewals and a participant for initial con- tracts Requejo is Spanish-speaking in consequence of which she chiefly provided translation to her constitu- ents as necessary, and she also served as primary record- er for the Union at negotiating sessions The bargaining meetings of this case were also attended by Jesus Ji- mmez, a representative of the Union who had been prin- cipally involved in the organizmg campaign that led to certification An employee committee of slightly shifting composition also consistently attended the sessions Respondent's chief negotiator was Attorney Herbert Moss, an experienced labor law practitioner He was ac- companied at practically all negotiating sessions by Paul Fien, Respondent's vice president, who engages in gen- eral administrative duties The management hierarchy of Respondent has Paul Fien's father, Anthony (Tony) Fien, as its president and Jim Schmardebeck as plant manager Supervision for the day (first), afternoon (second), and night (third) shifts at times material to this case consisted of Andy Moroneso Jr, Mike Workman, and Anthony Moroneso Sr, respectively 2 All dates and named months hereafter are from August 1985 through July 1986, unless otherwise indicated 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C Case Chronology The following chronology outlines how the bargaining process unfolded and how related happenings affected relationships between the parties 12 August—Certification of Representative for a defined unit in which were included "All produc- tion and maintenance employees including ware- house, shipping and receiving employees, and truck- drivers employed by the employer at its facility lo- cated at 533 South Rose Avenue, Anaheim, Califor- ma," and with typical exclusions of office clerical employees, professional employees, watchmen, guards and supervisors 12 August—Date of letter from Moss to Jimmez advising of retainer by Respondent to represent it in collective-bargaining negotiations 15 August—Date of letter from Rothman to Moss requesting information on 13 listed subjects for the purpose of the Union being "prepared to begin those negotiations at the earliest possible date" 30 August—Date of letter from Moss to Roth- man providing some of the data sought 11 September—Date the Union filed a charge as Case 21-CA-24149, alleging Section 8(a)(1) and (3) violations of the Act on the basis of "coercion, threats, mtimidation, lay-offs and questioning of em- ployees about their union activities" since on or about 5 August 19 September—Probable date of first telephone discussion between Rothman and Moss, leading to setting of opening date for negotiations 26 September—First bargaining session at Gns- wold's Hotel m Fullerton, California At this session the Union presented a complete proposed agree- ment of 31 articles 4 October—Date of letter from Moss to Rothman and Requejo enclosing Respondent's "counter pro- posals" as to which a reservation of right "to delete, modify, or add to" was stated This counterproposal comprised a preamble followed by language on practically every subject first advanced by the Union, and generally in the same order of composi- tion 17 October—Second bargaining session at which Union presented a complete, revised proposal with its cover sheet stating parenthetically, "contains changes in response to company's proposal [as re- ceived] October 10, 1985" 31 October—Third bargaining session at which Union presented another complete, revised proposal with its cover sheet stating parenthetically, "con- tains union modifications in positions, including withdrawal of certain positions, as per bargaining session of October 17, 1985" 7 November—Fourth bargaining session at which Union presented another complete, revised proposal with its cover sheet stating parenthetically, "con- tains union modifications in positions including withdrawal of certain positions, as per bargaining session of October 31, 1985" 11 November—Fifth bargaining session between the parties 5 December—Sixth bargaining session at which Union presented another complete, revised proposal with its cover sheet stating parenthetically, "con- tains union modifications in positions including withdrawal of certain positions, as per bargaining session of November 7, 1985" 17 December—Seventh bargaining session at which Union presented another complete, revised proposal with its cover sheet stating that it "con- tains union and/or company proposals agreed to and proposals still on table as of December 17, 1985, 10 00 A M ," and further parenthetical infor- mation that it "also contains modifications in union position presented to company December 17 1985" This proposal of the Union also originated a coding key by which Rothman attempted to track the progress of negotiations by indicating, with a perti- nent date, the subjects which currently represented a union position (UP), a company position (CP), or a subject on which there had been union-company agreement (UC) 19 January—Union meeting of all represented employees at a public park in which the status of bargaining was thoroughly explained and a strike authorization obtained for exercise if, in the discre- tion of union negotiators, there was no significant movement by Respondent during the next, immi- nent bargaining session 3 21 January—Eighth bargaining session at which Union presented another complete, revised proposal with its cover sheet stating, "contains union and/or company proposals agreed to and proposals still on table as of January 21, 1986, 1000 A M" 21 January—Strike commences effective with second-shift employees Late January/early February—Respondent com- mences payment of a $10 daily bonus to nonstnkers and replacement employees performing "operator" duties, as extra compensation because of claimedly hostile strike activities 19 February—Ninth bargaining session as called on this occasion by a mediator Here the Union pre- sented another complete, revised proposal with its cover sheet stating, "contains union and/or compa- ny proposals agreed to and proposals still on table as of February 19, 1986, 1 00 P M" and further par- enthetical information that it "includes modifica- tions in union position presented to company Janu- ary 21, 1986" 27 February—Execution of unilateral informal settlement agreement in Case 21-CA-24406 by Re- spondent in which, among other things, reinstate- 'At this point in time the Union's last wage proposal was for 3 hourly rate increases of 50 cents each over the term of a 3-year contract This represented change from a similar three-step Increase of 75 cents as first revealed in the session of 17 October Respondent continued to adhere to its position of not offering a wage increase of any amount over the course of its proposed 1-year contract ANAHEIM PLASTICS 83 ment of strikers, upon their application, was agreed to 12 March—Date of letter from Moss to Requejo setting forth as an enclosure Respondent's "position on each open item" 17 March—Date of letter from Requejo to An- thony nen notifying that Union "has uncondition- ally terminated the strike" and listing 86 names of persons "ready to return to work" that date, plus notation that the advice is meant to include "any others who may have been omitted" 24 March—Tenth bargaining session between the parties 26 March—Eleventh bargaining session, at which Respondent presented a two-page summary of its position on various subjects 16 April—Twelfth bargaining session at which Union presented another complete, revised proposal with its cover sheet stating, "contains union and/or company proposals still on table as of April 16, 1986, 10 00 a m" and further parenthetical informa- tion that it "includes modifications and agreements reached on March 26, 1986" 29 April—Thirteenth bargaining session between the parties 11 July—Fourteenth bargaining session at which Union presented another complete proposal for agreement, keyed only as to "UP" and "UC" items, and thus headed on its cover sheet, "contains union and company previously agreed to articles and sec- tions and union proposed articles and sections as of July 11, 1986,2 PM" 30 July—Fifteenth bargaining session at which Union again presented a complete proposal for agreement, this time keyed to the three categories of "UP," "CP," and "UC " The cover sheet of this document stated that it "contains union and compa- ny previously agreed to articles and sections and company and union proposed articles and sections as of July 30, 1986, 3 PM" D Significant Documentary Evidence There is voluminous written material in the record of this case Such material falls in several categories, includ- ing that procedurally relevant to the bargaining process, that substantively relevant to the bargaining process, that which is tactical or rhetorical as between the parties, that which records individual or group employment facts, and miscellaneous other groupings In generally chrono- logical fashion, and to enlarge on the outline of section /LC above, the following items are notable The Union originally sought both group insurance and pension benefits in the contract proposed for its mem- bers On 26 September plan documents, required reports, and an auditor's statement respecting the insurance fund were presented to Respondent The insurance benefit program of the fund description was reproduced as a 27- page exhibit, while the pension fund is an 18-page exhibit of record In terms of Respondent's eventual counterpro- posal on the subject of health insurance only, and noting imperfections occurring when incorrect documents were first inadvertently released to the Union, the counterpart existing employee coverage is a plan description repro- duced in 9 pages plus a 13-page certificate of insurance from Liberty Mutual Company 4 Beginning at the bargaining meeting of 17 October, Respondent periodically presented single-subject propos- als in areas of disagreement or yet-insufficient discussion of respective views Often these reflected concessions or refinements that had been agreed upon in prior bargain- ing discussion On this first date of 17 October Moss pre- sented a proposed management-rights item which read A Except as otherwise specifically provided in this Agreement, the Employer has and retains the sole and exclusive right and function to manage its business including, but not limited to, the right to (1) Determine and schedule working hours, allot and assign work, shifts, and overtime (2) Determine and control the location, number, size, layout, and operation of all plants, facilities, materials, machinery, equipment, and other Employer' [sic] property (3) Close down, reduce, or expand the Em- ployer's facility or any parts thereof, reduce, alter, combme, transfer, or cease any department, operation or service (4) Determine processes, techniques, methods, and means of all operations, including changes or adjustments or any machinery or equipment (5) Determine the size and composition of the working force (6) Relieve employees from duty for lack of work or for other reasons deemed legitimate by management (7) Reprimand, suspend, discharge or other- wise discipline employees (8) Contract or subcontract construction, serv- ices, maintenance, distribution or any other work with outside entities (9) Make, change, and enforce rules, policies and practices not in conflict with the specific provisions of this Agreement (10) Otherwise generally manage the plant and direct and supervise the work force B All management rights are vested exclusively in the Company and are not subject to the griev- ance or arbitration provisions of this Agreement On 31 October Moss presented one or two sheet pro- posals on the subjects of union security, checkoff, report- in pay, wages, and safety With the exception of the sub- ject report-in pay, which I do not recite, these respec- tively read as follows All employees covered by this Agreement who, thirty (30) days after the effective date of this Agreement are members of the Union , in good standing shall remain, as a condition of employment 4 The correct certification of Insurance covering Respondent's produc- tion employees was supplied to the Union on 17 December 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the duration of this Agreement, members of the Union in good standing A During the term of this Agreement, the Em- ployer shall deduct from their wages and remit to the Union the regular monthly membership dues to which the Union is entitled from all employees who have executed and delivered to the Employer a written assignment for such deductions, on the form attached hereto B All such deductions shall be made from the first pay m the month and shall be remitted to the Financial Secretary of the Umon within fifteen (15) work days after the date on which the deductions are made, together with an itemized statement showing the names of the employees and the indi- vidual amounts deducted C A fee of fifty cents (50) per deduction per employee may be charged by the Employer for services rendered in connection with the above dues withholding program The amount of such fees to be retained by the Employer will be deducted from the total dues withheld each pay period D The Umon shall indemnify, defend and save the Employer harmless against any and all claims, demands, suits, judgments, or other forms of liabil- ity that shall arise out of or result from any action taken by the Employer pursuant to the above check-off provisions A During the term of Agreement, the minimum hourly rate to be paid to any employee shall be three dollars and thirty-five cents ($3 35) B There shall be no maximum hourly rate C Employees shall not be paid according to clas- sification but instead each individual employee will be paid on the basis of merit D Every six (6) calendar months, the Employer shall review the work performance of the employee and may grant such increases as the Employer deems, in its sole discretion, the employee's work performance merits The Employer will furnish, without charge to its employees, safety devices and safeguards, such as goggles and gloves, which are reasonably necessary for a safe and healthful place of employment If the Employer requires any employee to have certain tools or equipment, the Employer, at its sole cost, will provide and maintain them On 7 November Moss presented a three-page proposal on grievance procedure In this a grievance was defined as "a claim that the Employer his violated a specific provision of this Agreement" The further highlights of this proposal included a three-step grievance procedure followed by arbitration under the Federal Mediation and Conciliation Service (FMCS) Concluding language called for equal sharing of arbitration costs, and a state- ment of arbitral finality, limitations, and exclusivity as a remedy On 11 November Moss presented proposals on vaca- tions, leave of absence, wages, an "entire agreement" proposal, a no-strike clause, language on union represen- tation, and a revised grievance procedure The proposal by Respondent on vacations read All employees employed one (1) year or more by the Employer shall be entitled to one (1) week's va- cation without pay All employees employed three (3) years or more by the Employer shall be entitled to one (1) week's vacation of which two (2) days will be with pay All employees employed five (5) years or more by the Employer shall be entitled to two (2) weeks' vacation of which one (1) week will be with pay The proposal of 11 November on leave of absence ran to a second page and generally dealt with reasons, justifi- cation, length, and consequence of an employee going on such leave The modified proposal on wages read A During the term of this Agreement, the mini- mum hourly rate to be paid to any employee shall be three dollars and thirty-five cents ($3 35) B There shall be no maximum hourly rate C Employees shall not be paid according to clas- sification but instead each individual employee will be paid on the basis of merit D The Employer shall from time to time review the work performance of its employees and may grant such increases as the Employer deems, in its sole discretion, the employee's work performance merits E As the result of signing this Agreement, no employee shall suffer any reduction in his hourly rate of pay The proposal of 11 November on "entire agreement" language represented typical verbiage of a "zipper clause" intended to confine all agreed-upon subjects within the literal and exclusive terms of the contract document Respondent's proposal of this date on the subject of a no-strike clause read A During the term of this Agreement, or any ex- tension thereof, the Employer will not engage in any lockout B During the term of this Agreement, or any ex- tension thereof, neither the Union, nor its members, agents, representatives, nor any bargaining unit em- ployee, will, by any means whatsoever, cause, en- courage, sanction, or participate in any strike, walk- out, picketing, stoppage or slowdown of work C The Union shall not be liable or responsible for any strike, walkout, picketing, stoppage or slow- down of work not duly authorized by the Union D Violation of this provision by any employee of the Employer shall be cause for the immediate discharge of that employee or such other discipline as the Employer may elect to impose The proposed language on union representation read ANAHEIM PLASTICS 85 A The Employer recognizes the Union griev- ance committee, chief steward, shop stewards and other representatives designated by the Union as the Union's authonzed representatives for administering this Agreement and negotiating with the Employer under its terms B There shall be one shop steward for every shift and one chief steward C Time spent in the capacity of a steward will not be compensable nor considered as time worked D Whenever possible, a steward shall investigate or attempt to resolve a grievance during non-work time If necessary to handle the grievance during work time, the steward shall obtain permission from his supervisor to handle the grievance during work time, which permission shall not be unreasonably withheld One last specific documentary change on 11 Novem- ber was embodied in a one-page handwritten sheet pre- pared by Rothman, which modified a portion of the Union's then-existing proposal for leave of absence as its article XX The revisions by Moss concerning grievance procedure from 4 days earlier resulted in more lengthy and detailed language The first section proposed to re- define the subject as "All disputes between the Employer and the Union or any employee of the Employer pertain- ing to terms and conditions of employment" The bal- ance of changes were procedural or as to phraseology By letter dated 25 February Rothman wrote to Moss as follows We have a number of times requested from you information relative to the insurance coverage you provide for the bargaining unit employees On No- vember 11, 1985 at 300 P M, you provided us with what purports to be a copy of a "group insurance premium statement" from Liberty Mutual Life, (copy enclosed) On that statement, the actual monies paid or owed to the insurance carrier were not evident and perhaps whited out before it was submitted I pointed out to you at that time, and a number of times since, that we still have not re- ceived from you a listing showing exactly what bar- gaining unit employees have had a premium paid on his or her behalf in any particular month so that we can be certain that the bargaining unit employees are receiving the insurance program coverage you claim they are receiving In order to provide us with the information we need, we are herewith demanding a listing of the covered employees for the months of September, October, November and December 1985, such monthly list to indicate the name of the employee covered and paid for and whether or not they have single coverage or family coverage To substantiate this list, we would require a copy of your carrier's company insurance premium statement which would indicate that the premiums that sould [sic] have been paid for the covered employees, was paid I gave you examples in the past of employees that would appear to be eligible for benefits, by the company's eligibility rules, who had medical bills and were not reimbursed by the insurance company We have no way of ascertaining exactly or whom you are paying and what you are paying, and thus cannot make intelligent bargaining decisions unless you provide us with the information we have so many times requested Moss responded by letter dated 12 March to Requejo which read Last week I received a letter from George Roth- man in his capacity as Director of the United Furni- ture Workers Insurance Fund The Company con- siders the request for information to be totally inap- propriate The Company does not recognize any ob- ligation to furnish information to the Insurance Fund The Company has no obligation to make contributions to the Insurance Fund and has abso- lutely no relationship with the Fund However, to avoid a needless dispute, I shall furnish the data re- quested to the Union 1 No list exists, nor has one ever been prepared, which sets forth the names of the employees for whom premiums are paid each month The proce- dure followed by the Company is simply to notify the carrier each month of the new employees who have become eligible and the employees who have ceased to become eligible due to termination No all-inclusive list is prepared each month Once an employee's name is added, that person remains cov- ered until termination 2 I wish to repeat a statement made several times during the course of negotiations All employees employed more than 90 days are covered by the medical insurance plan The premiums for the em- ployee only are paid for by the Employer for all bargaining unit employees employed more than 90 days All employees employed more than 90 days are eligible for dependent coverage but the entire cost of same is the responsibility of the employee None of the bargaining mut employees have elected to purchase dependent coverage 3 During the course of negotiations, the Union contended that the claims of some employees were allegedly rejected by the insurance carrier due to non-coverage I advised you that if you would fur- msh me the names of the employees, I would have the Company look into the matter To date, the Union has failed to provide me with the names of the affected employees or any details of the rejected claims If you do not furnish the needed information to me, the Company cannot do anything about the denied claims I hope this answers all of the Union's questions By letter dated 17 March Rothman then wrote to Moss as follows 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ms Requejo has brought your letter to her of March 12, 1986, to my attention As you should be aware, since I have been nego- tiating for Local 1010 with you for many months now, when I write to you and request bargaining information it is in my role as negotiator for the bargaining unit You chose, for whatever strange motivations you might have, to ignore my role in this situation and use that as an excuse to not reply to the information that was requested for bargaining purposes, in my letter to you of February 25, 1986 To specifically address your letter of March 12, 1986 1 We know that you receive a billing from your insurance carrier, since you have given us a copy of same for the premium period of Novem- ber 1, 1985 to December 1, 1985 That billing has columns which clearly are intended to show how much premium is due, based on the number of persons in any particular class times the rate indi- cated, equalling the total premium due, thus es- tablishing how many persons are being paid for 2 In addition, you had once provided us with a list of all bargaining unit employees If you were to provide us with the premium paying re- mittance copy that you sent to the insurance company for the month that reflects the bargain- ing unit employees list that you gave us, plus the same premium paying remittance copy with its additions and deletions for the months following, it could be ascertained that employees are cov- ered by a premium payment for any of those par- ticular months That is the information we seek and have been seeking for a long time, and are certain that the Company must have in its possession in order to be able to pay the insurance company each month As to "rejected claims" for certain employees, I have mentioned to you a number of times at the table that at least one of the members of the com- mittee, Patricia, had delivered a child while em- ployed by you and had received absolutely no ma- ternity benefits from your insurance carrier I also told you that there were others who told us the same thing, and that I wanted the information that we are requesting so that we can ascertain who else was perhaps not listed when they should have been and thus did not receive their benefits You are aware that insurance coverage is an im- portant item, from both sides at the bargaining table Your actual costs and the employees' actual coverage is very vital to the committee making an intelligent decision when bargaining on this subject At this time we are again requesting all informa- tion relative to wages (including bonuses, if any,) benefits and job titles of all employees hired by the Company since the last bargaining unit employees list you supplied to us This too, is information vital to our being able to intelligently negotiate a con- tract with the Company I expect the above information to be provided to the Local committee at the start of our next sched- uled bargaining session, March 24, 1986, at 3 00 P M, and take this opportunity to confirm our tele- phone conversation that we have agreed to bargain- ing sessions on that date and on March 26, 1986 at 10 00 A M, both bargaining sessions scheduled to be at the Gnswold's Hotel, Fullerton, California I also note your other letter of March 12, 1986 addressed to Ms Requejo, containing a reaffirma- tion of the Company's positions on various items We will be, as we have always been, ready to ad- dress your proposals at our next bargaining session During the course of this exchange of correspondence Moss had written separately to Requejo by letter dated 12 March This letter enclosed "a new set of the compa- ny's current position on each open item," and stated that Moss was so writing "to expedite the next collective bar- gaining meeting, and to protect my client from any false representations by the Union of the company's propos- als" The described enclosure to Moss' letter of 12 March is set forth verbatim below II Union Security No change III Check-Off Company will accept Union's proposal in exchange for which Union will accept Company's proposals on (a) seniority, and (b) leave of absence VI Holidays Company will give a floating holi- day to be selected by the Company in exchange for which Union will accept Company's proposal on medical insurance and will drop demand for pension plan VII Vacations 1 year-1 week without pay 2 years-1 week, 2 days paid 3 years-1 week, 3 days paid 4 years-1 week, 4 days paid 5 years-2 weeks, 5 days paid VIII Seniority See III above IX Transfers No change X Wages See attached proposal XII Shift Bonus No change XIII Management Rights Company will delete proposal (K) if Union does the same and accepts Section 1 without words "or by law" Otherwise, Company proposed to discuss each and every pro- posed management right XIV Supervisors No change XVI Health and Safety Section 3 No change XVII Medical Insurance See VI above Other- wise no change XVIII Pension See VI above Otherwise no change XIX Leave of Absence See III above Other- wise no change XXI Past Practices No change XXIV Strike and Lockouts No change ANAHEIM PLASTICS 87 XXIX Duration of Contract No change—One (1) year 10 Wages A Dunng the term of this Agreement, the minimum hourly rate to be paid to any employee shall be as follows 1 Mixer $3 35 2 Machine Operator $3 35 3 Floor person $3 35 4 Janitor $3 35 5 Truck loader $3 35 6 Truck dnver $400 7 Vehicle $4 50 maintenance 8 Machine $5 00 maintenance 9 Tool room $600 technician 10 All other $3 35 employees B As a result of signmg this Agreement, no employee whose hourly rate exceeded the above minimums shall suffer any reduction in his hourly rate of pay C Nothing herein shall prevent the Employer from paying an employee in excess of minimum hourly rates The Employer may grant such addi- tional sums as the Employer deems, in its sole de- scretion [sic], the employee's work performance merits On 4 March the Acting Regional Director for Region 21 wrote to Jimmez advising that Respondent had exe- cuted the informal settlement agreement in Case 21-CA- 24406 This letter routinely set forth rights and proce- dures in terms of Section 101 7 of the Board's Statements of Procedure, read in connection with Section 102 19 of the Board's Rules and Regulations, and advised of an in- tention to approve the proposed, enclosed settlement agreeement on 17 March On 13 March Attorney Jesus Qumonez caused hand-delivery to the Acting Regional Director of a letter bearing that date in which the Union's reasons for objecting to the informal settlement agreement were set forth Notwithstanding this a Board agent recommended its approval on 19 March and the Regional Director accorded official approval on 25 March 5 The Union's cessation of the strike as of Monday, 17 March resulted in a mass showup of employees early that day The more detailed description of events, discus- sion, and outgrowth will appear in section II,F below In terms of the present focus on significant documentary evidence, I refer next to a letter dated 19 March written by Moss to Requejo which read When you and Jesus met with Tony Fien on Monday, March 17, 1986, you were informed at 5 Such approval was withdrawn by the Regional Director on 25 June, in keeping with an allegation that its terms had been violated and as part of the dynamics in issuing the original consolidated complaint that time Anaheim Plastics would rehire all the strikers as quickly as possible However, Fien point- ed out several immediate problems to you A torna- do had severely damaged the roof and substantial damage had been done to several machines Because of the safety problems, there was no need for all the employees and there was not enough work to rein- state everyone at once This problem has not yet changed Due to the condition of the facility, it is not safe to have everyone working at the present time Likewise, the inoperative condition of some machines makes it impossible to provide work for everyone Fien stressed to you the absolute need for an or- derly return to work due to the chaos created by the tornado's effects on the facility Fien requested that those employees who in fact want to return to work should report to their foremen For instance, second shift employees should report to their re- spective second shift foremen The foremen are the persons most familiar with the rank-and-file employ- ees and are the ones who can best determine when to recall employees once the chaos has lifted The Company cannot take back everyone imme- diately because the condition of the facility makes that presently impossible As machines are repaired, employees will be brought back as quickly as possi- ble However, you must understand that until the repairs are completed, the Company will not be able to use everyone To expedite an orderly recall of employees, it is imperative that the employees who intend to return to work come to the plant and tell their respective foremen of this fact The foremen know most of the employees by face and this face-to-face meeting is critical to properly identify the employees I hope the union and the employees will cooper- ate with Anaheim Plastics and ease the crisis cre- ated by the damage done to the facility Following the bargaining session of 24 March, in which Moss vehemently accused the Union of planning a damaging resumption of the strike, he wrote to the Union by letter dated 25 March, delivered at the negoti- ating session of 26 March, which read In your letter of March 17, 1986, the Union indi- cated all striking members would be applying for reinstatement At the meeting of March 24, 1986, I asked the Union for some agreement that the strike would not be resumed shortly after the employees returned for work George Rothman stated that no such promise would be made He stated that the Union and the employees reserved the right to resume the stnke "at any time" Rothman further asserted that if the Union and the employees were not satisfied with the progress of the resumed nego- tiations, they might strike again "at any time" I have prepared the enclosed Agreement which I request the Union accept I believe the Employer is entitled to a reasonable assurance that the strike is over and the offer to return to work is not for an 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unreasonably short period and for the sole purpose of causing the layoff of strike replacements I request a written response to this letter The described enclosure was a half page, legally phrased waiver of strike action by the Union or the represented employees for a period of 60 days Rothman answered this communication by his letter dated 27 March to Moss stating In reply to your letter of March 25, 1986, which was hand delivered to the Local 1010 Negotiating Committee by you, we reject the specifics and the premise of your letter and your demands The Local Union cannot be responsible for al- leged rumors, which you may or may not have heard, as to what the intentions of the membership may be The document you received from the Union on March 17th stated, and continues to state, the posi- tion of the Union At the actual bargaining session of 26 March Moss pre- sented a three-page proposal for a collective-bargaining agreement which, in abbreviated form, was comprehen- sive and contained certain revisions from Respondent's earlier position as to benefits and language The verbatim content of this document was II Union Security III Check-off Employer will grant check-off in exchange for which the Union will accept the Em- ployer's proposal on union security VI Holidays Employer will give a paid, floating holiday to be selected by the Employer The Em- ployer will give the employees at least fifteen (15) days advance notice of the holiday selected VII Vacations No change from prior proposal VIII Seniority No change in proposed language IX Transfers Employer is willing to drop its proposal m exchange for which Union will drop its proposal X Wages No change in proposed language XII Shift Bonus No change in proposed lan- guage XIV Supervisors Employer is willing to drop its proposal in exchange for which Union will drop its proposal XVII Medical Insurance No change in proposed language As an additional reason for rejecting Union proposal, Employer is concerned about the statement made by Union that Insurance Fund does not meet requirements of Section 302 of L MR A XVIII Pension Employer is still unwilling to in- stitute this benefit XIX Leave of Absence Employer proposes to change Section 3 of its proposal to grant preferen- tial hiring for sixty (60) days XXI Past Practices No change in proposed lan- guage XXIV Strikes and Lockouts Section 1 During the term of this Agreement, or any extension thereof, the Employer will not engage in any lockout Section 2 During the term of this Agreement, or any extension thereof, neither the Union, nor its members, agents, representatives, nor any bar- gaining unit employee, will, by any means what- soever, cause, encourage, sanction, or participate in any strike, walkout, picketing, stoppage or slowdown of work, provided, however, the pro- visions of this section shall not apply if the Na- tional Labor Relations Board determines that the action taken was to protest an unfair labor prac- tice by the Employer Section 3 The Union shall not be liable or re- sponsible for any strike, walkout, picketing, stop- page or slowdown of work not duly authorized by the Union Section 4 Violation of this provision by an employee of the employer shall be cause for the immediate discharge of that employee, or such other discipline as the Employer may elect to impose Any such discharge or discipline is sub- ject to the grievance procedure, however, the ar- bitrator must sustain the action taken by the Em- ployer if he finds that the employee has in fact engaged in any conduct prohibited by Section 2 above XXIX Duration of Contract No change—One (1) year contract The bargaining session of 29 April was the first of the senes which Rothman was unable to attend and function as chief union spokesperson In his stead Al May, direc- tor of organization for the International Union who had previously attended at least the 21 January meeting, trav- eled from Nashville to represent the Union He was briefed by Requejo on the status of negotiations and un- dertook a bargaining session with Moss on that date at the usual location and with Requejo plus the employee committee present The session resulted in a mutual dropping by both parties of their then-existing proposals on the subject of supervisors working or not working Requejo testified that May sought another date for nego- tiations but Moss expressed reluctance to do so without an indication of what further changes the Union might have in its positions Moss' testimony is that he had al- luded to what seemed only one "very, very minor change" and then stated his belief the parties were at im- passe "unless somebody indicates to me that we're not" He recalled following this up with a statement that he saw no point in meeting without specific proposals for change from the Union, and that with this May stated Rothman would telephone Moss regarding any future course As related to such testimony Rothman wrote to Moss by letter dated 13 May which read I was informed today by Local 1010 Business Manager Cynthia Requejo, that in a phone conver- sation with you today you refused to hold addition- al bargaining sessions unless the Union, in advance, , ANAHEIM PLASTICS 89 informs you that they are ready to make "substan- tial" changes in their position We believe your position is a refusal to bargain, as per the law and the settlement agreement with the National Labor Relations Board that you signed In spite of the fact that you have refused to bar- gain, we continue to attempt to have you bargain fairly, and I hereby reaffirm what Ms Requejo told you by phone today "We are prepared to make changes in our positions," and to that end propose a bargaining session for Wednesday, May 21, 1986, 10 00 A M at Griswold's Hotel, Fullerton, Califor- nia, and a room has been arranged for that purpose Either Ms Requejo or I expect to receive an im- mediate response from you as to whether or not you intend to be there at the time and place indicat- ed and ready to bargain fairly If you do not intend to be there, you must con- tact either Ms Requejo or myself no later than Monday, May 19, 1986, 500 P M, Central Standard Time Moss answered Rothman by letter dated 14 May which read This is in response to your letter dated May 13, 1986 At the meeting held on April 16, 1986, both the company and the union stated there were no changes from the positions each had taken at the prior (3/26) meeting At the end of the April 16th meeting, you requested another meeting I ques- tioned the wisdom of scheduling another meeting since both sides had not changed any positions I stated that unless a change in position was to be made, there was no point in holding another meet- ing You insisted that another meeting was needed because the union intended to re-evaluate its posi- tion and would have "new proposals" to submit at the next meeting On the basis of your representa- tion that "new proposals" would be made, I agreed to a meeting on April 29 When we met on April 29, I advised the union representatives there was no change in the compa- ny's proposal Except for Article XIV, the union had no change of position on any open items The union agreed to my prior proposal to have both parties drop the proposals made under Article XIV After agreement was reached on Article XIV, I asked the specific question, "Is the union prepared to change its position on any other item?" The re- sponse was "No" There have now been two (2) meetings in which virtually no change has been made by either party I advised Requejo that the company was not pre- pared to change its position and if the union was likewise not willing to modify its positions, then an- other meeting made no sense Requejo stated she "thought" you were prepared to make some changes Asked if she had any idea what these changes might be, Requejo said she did not I told Requejo that I would like some idea what you had in mind because at the April 16 meeting you prom- ised new proposals, but at the April 29 meeting there were no really "substantial" changes made by the umon Requejo said she would have you tele- phone me I am willing to meet again but not solely for the purpose of giving you an excuse to visit sunny Cali- fornia At the April 16 meeting you promised "new proposals" would be made at the April 29 meeting, but no significant changes were made Simply stated, I do not trust the vague reference to possible changes If you will telephone me and give me some idea of what changes you have in mind, I shall be glad to arrange for another meeting All I ask is some idea of what you have in mind so that a new meeting will not be a waste like the one held on April 29 Due to prior commitments, I am not available to meet on May 21, 1986 I am presently available on Tuesday, May 27, 1986, 10 00 A M However, before confirming said date for a definite meeting, I request that you telephone me By letters dated 16 May, 23 May (two crossing in the mail), 27 May, 29 May, and 2 June Rothman and Moss exchanged accusatory and exasperated communication about the course of negotiations, plus divergent views on the sufficiency of material provided (or lack thereof) by Respondent with respect to its employee group health in- surance plan From these seven full pages of densely written communication, I extract only certain flavor by quoting the phrasings, "shocked and dismayed," "will not allow you to force me to bargain with you privately over the telephone," "the so-called information that you say you supplied us," "I do not trust you to tell the truth about our telephone conversation," "you refused to give me a straight answer," "your inevitable lies," "your after the fact attempt to improperly `set-up' an impasse situa- tion," "I don't know how much clearer I can make it," and "most unethical union official it has been my misfor- tune with whom to deal" The bargaining session of 30 July was the second oc- casion Rothman was unable to attend and function as chief union spokesperson This time Requejo served as the Union's chief representative in the course of a 15- minute-long meeting held in Moss' office She testified that Moss rejected the correctness of Rothman having shown checkoff as an agreed-upon item, and that after she reduced the Union's wage demand by 5 cents per hour Moss said Respondent had "no changes whatso- ever" on the subject Requejo recalled asking Moss for another negotiating date, and his response that there was no point in doing so because of the Union's weakness even if it were to have further changes in proposals Moss agreed with Requejo's recollection of having dis- cussed checkoff and wages, including an express cor- roboration that he had "told you before there will be no wage increases" However Moss testified that this meet- ing also covered the subjects of seniority, medical Insur- ance, leave of absence, past practices, and contract dura- tion In recalling the conclusion of the meeting Moss tes- tified that as far as he could see at the time the parties 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were at an impasse as they had been before He attnb- uted closing remarks to Requejo who is asserted to have said she would discuss the status of negotiations with Rothman who would then contact Moss As related to such testimony of Requejo and Moss, Rothman wrote to Moss by letter dated 8 August stating Business Manager of Local 1010, Cynthia Re- quejo, informed me of your behavior at the bargain- ing session which was scheduled for July 30, 1986 at your office In confirmation of what she told me, I have your letter of same date which you addressed to her I was particularly shocked to see that you have denied important agreements which we had made at previous sessions Need I remind you, that you were the one who had proposed that agreement on Check-Off was conditional on agreement on Union Secunty Not only was that position verbally stated by you and us a number of times, but wntten pro- posals that you gave us contained that condition On July 11, 1986, we finally reached agreement on those two Articles, only to have you now attempt to withdraw it on July 30th Further, the term "as a condition of employ- ment" is quite clear, and had been part of every proposal we gave you in connection with the Union Security article, and was in fact, in the Union Secu- nty language we mutually agreed to on July 11, 1986 For you to renege on your agreement made less than three weeks earlier, and futher [sic] to argue that "as a condition of employment" does not mean what it says, is absolutely disgraceful I really don't know why this shocks me so, since through these entire negotiations you have backed and filled, twisted and turned in making the maximum effort to avoid bargaining in good faith for a contract be- tween the parties The ultimate proof is your telling Ms Requejo on July 30th that you have no intention of ever meeting with us again for purposes of bargaining You may think you have shut the door, but I assure you that we will pursue every avenue open to us to bnng the employer you represent to the table for purposes of fairly bargaining and achieving a fair contract, mutually agreeable Moss answered Rothman by letter dated 14 August stating As usual, your rantmgs are inaccurate I shall re- spond to some of the points raised in your letter of August 8, 1986 1 The proposal made by the company was that if the union would accept the company's proposal on union secunty, the company would grant the union's request for dues check-off The union did NOT accept the company's proposal Instead, the union made a new proposal and the company ac- cepted the union's proposal Since the company ac- cepted the union's new, different proposal, and the union did not accept the company's proposal, the proposed trade never took place There was no ac- ceptance of the company proposal by the union, and, therefore, the subject of check-off is still open 2 At no time (until the July 30 meeting) did the union ever submit a proposal that failure to pay dues would result in dismissal The first hint of firing an employee came at the July 30 meeting when Cynthia Requejo said that is what she thought the language meant When I disagreed, Re- quejo said she would have to refer the matter to you The phrase "condition of employment" does not mean automatic discharge of an employee who fails to pay union dues It simply means an obliga- tion whose breach could have different remedies Once [sic] such remedy is the termination of an em- ployee if the parties agree to such a remedy How- ever, at no time did the union ever propose dis- charge and at no time did the company ever agree to discharge If this were the union's intent, such a proposal should have been made 3 I did not say to Requejo that the company had no intention of ever meeting again with the union I did say that I considered the negotiations to have been at an impasse, the union had the company's final proposals, and unless the union was prepared to accept the company's final proposals, there did not appear to be any reason to meet again Requejo said she would transmit this message to you Rothman responded by letter to Moss dated 4 Septem- ber stating Since I have been on the road for the last couple of weeks, I did not get the opportunity to reply to your letter of August 14, 1986, which arnved in my office on August 18, 1986, and take this opportunity to do so I really believe that your negotiating techniques are designed to avoid ever reaching agreement on a fairly bargained contract between the parties Your behavior at the bargaining table and your technique of writing letters which contained insults to the ne- gotiator personally, and denying what you have said and/or agreed to before and distorting what we have said or agreed to before, seem to be a continu- ation of the technique of screaming, ranting, cursing and insulting the Union's negotiators and members Because I have never expenenced such tech- niques in any negotiations I have ever participated in before, I ashamedly admit that I really don't know how best to handle It I do know that ex- changing insulting letters is probably not the way to do it I will just let the record speak for itself by noting that my letter to you of August 8, 1986 con- tains the facts as I know them to be We are not at impasse and your refusal to meet is only further verification of your intent and actions to not bargain fairly ANAHEIM PLASTICS 91 E Profile of Bargaining 1 Volume of proposals and bargaining correspondence In general terms Rothman's constant and thorough up- dating on the posture of bargaining, using the Union's basic proposals as the matrix, generated over 400 typed pages in the September-July timespan Respondent's only contribution, roughly half as its mitial contract pro- posal and half as brief subject matter proposals through- out the course of bargaining, totaled about 50 typed pages In addition to this array there were supplementary references in the extensive health insurance materials ex- changed and considerable written explanation or change of positions as set forth in letters between the parties 2 Amount of bargaining time The various bargaining sessions were conducted during business hours, usually for most or fractional por- tions of a weekday Allowing for variations, caucusing, and delay it may fairly be estimated that an average of 2-4 hours actual table bargaining occurred per session In very rough terms this translates to about 50 hours of effective bargaining attention between the parties This working figure must be greatly discounted by reason of distracting side subjects that plagued the bargaining process An early subject related to the unfair practice charge that was pending when negotiations commenced September 26, and later the limited duty status of em- ployee Elena Gomez took up discussion During and after the strike pure contract negotiating discussion strayed to the subject of the bonus being paid by Re- spondent, and the slowness of recalling former strikers in days shortly following 17 March In the ending phases of negotiations valuable time was lost as the parties dis- cussed and debated whether substitute participants pos- sessed effective authority on behalf of their principal, whether requested information had been properly sup- plied, and whether the phenomenon of impasse had been finally reached 3 Tone of bargaining Another factor impinged on negotiations in a detri- mental way This arose practically at the outset, and con- tinued incessant throughout The factor was personal ani- mosity, manifesting chiefly between Rothman and Moss, which created a chronic layer of vituperation, ill-tem- pered outbursts, profane name-calling, and a generally pervasive mood of anger between the key participants Both the testimony and related evidence shows this was a capricious factor, often arising suddenly and without apparent warning or particularly good justification The chemistry between the two individuals was simply one of mutual dislike, and this resulted in too-frequent ex- changes of a volatile, abusive, or insulting nature The factor is amply and candidly set forth in the record by both chief spokespersons and by those who observed it in action In the course of bargaining dia- logue occurring 5 December on the subject of then- pending proposals for a health and safety clause Roth- man testified [A] I don't know if he said "damn liar" or "fuck- ing liar" The way he started—he jumped out and started screaming that I was a liar, and that he never said that and he didn't mean that, I just didn't understand and that I was a liar and an idiot I told him, "I told you to cut out the personal stuff There's no need for that" "You know you're a liar, you deserved to be called liar,' you be a liar" And I said "Cut out the personal stuff" You know, "If you got to prove you're macho, let's step outside and we can do that, you know, and then come back to the table and finish this damned con- tract I'm here to negotiate a contract, but you've got to cut out that" "Well, if you deserve it, I'll say it" I said, "I don't know what's the matter with you, I really don't What I'm telling you that when we put in a phrase that the law requires, it speaks for itself, and if you say you don't want it, I can certainly reach the conclusion that you don't intend to do what the law requires" And he said "Don't get excited Don't get excit- ed As long as you don't tell lies, I won't call you a liar" and we moved on [Tr 755-756, 795] A generalized statement on the point in Moss' testimony summarized the factor as follows [A] I cursed at him and he cursed at me I swore at him and he swore at me I yelled at him and he yelled at me, and it was an ongoing, mutual dislike and an ongoing mutual antagonism Unfortu- nately the negotiations degenerated to the point of a personal dislike on the part of both negotiators Q Did—well, let me—you didn't respond to the question I believe What was—did Mr Rothman use any term like "fucking asshole" toward you in that meeting? A I repeat, Counsel I know he cursed at me Whether he called me a "fucking shyster"—I know he kept using the word either "shyster" or "dumb, stupid, greedy attorney" he called me on a couple of occasions All I can tell you is once again the cursing and the yelling was mutual [Tr 2192-2193] Further illustration of the factor is found in Respondent's transcript from a tape recording made at Moss' behest, and over the Union's objection, of the bargaining session on 21 January I do not adopt this transcript because the weight to accord it is diminished by insufficient legal foundation of authenticity It does, however, tend to re- flect the dialogue which both participants described on the specific occasion and which, according to each of them as a constant theme of their testimony, was typical of their frequent exchanges The followmg verbatim pas- sage is found near the very beginning of what was re- corded of the discussion on this date Rothman Everything I say is true Moss You are a liar Do you understand the word liar? Rothman I understand 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moss You lied when you said that I told you at that first meeting that you had to withdraw the charges in order to Rothman Are you gomg to shut that tape Moss Are you going to tell the truth? Rothman I have told the truth Moss You're a liar Rothman I tell nothing but the truth Moss You're a damned liar Rothman Alright, you have decided not to give a contract you have Moss You're a liar Rothman You have designed your negotiations that way and you will legally pay for that Moss You are a liar Rothman No, you won't pay, he'll pay because you'll make your money no matter what happens to him I'm well aware of that and I wish he was aware of that so you can keep standing there yelling liar at me like the fool you are because you're no lawyer your just designed because lawyer takes cer- tain oaths to follow the law Ok, you are designed to circumvent the law which says you're supposed to bargain honorably and fairly and in reasonable expectation of a contract if that's your intent Obvi- ously that wasn't your intent, now are you going to shut that off or Moss What have you got to loose [sic] George by having the truth come out? Rothman The truth is what I perceive it to be and I take an oath I don't he under oath Moss You lied when you told the NLRB that I said to you that I wasn't going to negotiate if you didn't withdraw those charges Rothman That was exactly the premise of that conversation Moss The premise? Rothman You said there's no point in having these negotiations as long as there are those charges Moss You're a god damn liar I want this to record this so that I avoid your lies Rothman You can't use, you know damn well that's not admissible anyway It's just bullshit Moss Why do you he George you're a liar Rothman Are you trying to goad me into hitting me [sic] you son of a bitch? That's what you're looking to do Moss You hit me and Rothman Now stop calling me a liar Moss You are a liar Rothman You stop calling me a liar Moss You're a liar You're a liar, a liar, a liar, a liar who has no sense of the truth When you claimed that I told you wouldn't negotiate unless you withdrew those charges you're a liar Rothman You said it to me on the phone, you said it at the negotiations Moss You're a liar 4 Factors affecting pace of bargaining The 10-month span of bargaining resulted in relatively little productive time for negotiations Several factors contributed to this overall pace A threshold complica- tion was simply geographical, with Rothman located well across the country and Moss maintaining an office in the very California county where both Respondent and the Union had their business locations and where ne- gotiations took place This translated into necessary long- distance travel arrangements, and while there is no direct showing that better proximity would have made a differ- ence, the situation was far from ideal More pointedly there was simply little pressure for more bnsk scheduling of sessions, at least during 1985 On 31 October Rothman did earnestly seek a concentrated set of meetings running consecutively during 7-11 November when he started to sense that Moss' "busy schedule seems to be leading to big spaces in-between our negotiating sessions" Moss re- sisted this, saying he could only put together three of the proposed days However the upshot was that when the parties reconvened on 7 November Moss advised that "somethmg" had come up and he was unavailable until 11 November Rothman testified that his original hope was to have a contract concluded by Christmas (1985), and the two ses- sions held in December were generally based on this ob- jective However the pace of sessions noticeably slowed after that time with the result that negotiations then pro- ceeded at an average of only one per month thereafter This was partly a matter of circumstance as the Union was preoccupied first with strike matters and later the proposed unilateral settlement of its refusal to bargain case Rothman himself was unavailable because of a reli- gious holiday for the nominated date in late April, and the tone of the relationship worsened to near paralysis as Rothman and Moss exchanged scathing correspondence with each other After the second July session, again missed by Rothman, the situation languished as matters geared up for formal litigation only 5 Status of bargaining—prestnke By the last prestrike meeting of 21 January it must be said that some progress toward a mutual and integrated collective-bargaining agreement had been achieved On the other hand such progress was quite limited as to topic, and, more importantly, practically absent as to vital economic and noneconomic demands of the Union Further, the negotiations by this time had revealed stub- born areas of potentially unyielding character, and had identified rationales that were distasteful or baffling to the opposing side Thus the sharp partisan differences began to emerge, and with this an increasingly strident cross-labeling of positions as "ludicrous," "ridiculous," "illegal" or the like The most evident point of controversy related to wages As of 21 January the Union's demand was for 50- cent hourly pay increases over a contract term dropped from 3 to 2 years Respondent's position, unchanged from the beginning, was to offer no basic contractual pay increase above the statutory hourly minimum of $3 35, subject to individuals being paid "on the basis of merit" ANAHEIM PLASTICS 93 The only movement from this proposal was express agreement that "no employee shall suffer any reduction in his hourly rate of pay" by the signing of an agree- ment, this being the contractual phrasing for a "red cir- cling" of existing pay rates Another major area of economic controversy related to group health insurance, with the Union seeking agree- ment to its long-established plan and Respondent seeking to retain the existing group policy Over the course of prior meetings the respective merits of each coverage were argued and the corresponding structure of each as between the Union's administered fund and Respondent's pnvately placed group policy A particular point of ar- gument had related to a possible "stop loss" benefit which the Union represented could be obtained at an ad- ditional cost of only $1 per month per employee, and which Respondent claimed could simply not be authenti- cally available at such a minimal pnce On other economic issues the Union was seeking eight paid holidays while Respondent was willing to allow six 6 As to vacations, not previously a fringe benefit of employment, the Union modified on 21 January to a demand for up to 2 weeks' paid vacation after 4 years of service, while Respondent adhered to its counterproposal of a vacation formula combining paid and unpaid time with only a week of paid vacation after 5 years' employ- ment 7 Regarding noneconomic subjects the parties differed considerably in the important area of union security Here the Union sought a typical union-shop provision, while Respondent proposed only maintenance-of-mem- bership requirements The Union also sought checkoff language, which was once proposed by Respondent sub- ject to a 50-cent fee deduction per employee for render- ing the service Checkoff as a subject was however a matter withdrawn by Respondent as of 21 January On other key noneconomic subjects Respondent was refus- ing the Union's demand for a pension plan and offered to reach initial agreement only for a 1-year period Seniori- ty was also in dispute, with each party holding to their own lengthy proposals on the subject The same pattern applied on the subject of leave of absence On the other hand there were various areas of agree- ment, partial agreement or conditional agreement Chief among these were a recognition clause, language on hours of work and overtime, language on call-in pay, periodic information lists to the Union, management rights,8 rest and meal periods, union representation, grievance procedure, and certain lesser subjects Miscellaneous associated language as to holiday pay eligibility and other definitional refinements had been agreed on 7 As with holidays, miscellaneous definitional language had been reached pending agreement on a formula 8 A final subsec (k) remained unresolved, this being whether the sub- ject of management nghts would or would not be subject to the gnev- ance and arbitration provisions that would come to apply Moss had re- acted angnly when the limiting phrase "or by law" inadvertently ap- peared in what Rothman had meant to be an accurate recapitulation of the subject If fact, the Union was amenable to deletion of the "or by law" phrase, but a tirade by Moss had to be expenenced before the point could be left at rest 6 Status of bargaining—poststrike The passage of an additional 6 months narrowed dif- ferences between the parties By this time the Union had long identified "four main issues" as being in its highest interest to resolve These were wages, union security, checkoff, and the length of contract By the final session of 30 July none of these were resolved, however some interim progress had occurred The subject of holidays had been settled at six paid holidays plus a floating paid holiday chosen "at the Company's discretion" with 15 days' advance notice to employees The seniority article was close to being settled and the much debated subject of probation resolved at 75 days for new workers only A statement of management rights had been agreed upon, as well as health and safety language and that cov- ering strikes and lockouts As to the Union's concern over "four main issues" the subject of wages was still deadlocked by Respondent's refusal to offer any pay increase based on the bargaining process alone The Union's wage demand had progres- sively lessened to the point that by 30 July it called for two 40-cent hourly pay increases over a 2-year term of contract Respondent was still insisting on a contract of only 1 year in duration On the associated subjects of union security and checkoff, Rothman's recapitulation of 30 July indicated agreement on these points On seeing this Moss had fervently protested on the basis that all previously occurring in the session of 11 July was that Respondent had accepted a language change of the Union's liking, but in doing so triggered a loss of its con- ditional willingness to agree to checkoff Thus Moss claimed in the 30 July session with Requejo that he re- mained agreeable to a modified union-security provision, but the negotiations had not produced, nor would he agree to, a resolution of the issue regarding checkoff F Immediate Poststrike Matters The end of the Union's strike originated with a mass meetmg of employees on Sunday, 16 March The union officials conducting this meeting included Requejo, Ji- mmez, and May Essentially the bargammg situation was reviewed and a vote of employees was taken A large majority favored ending the strike, and on this basis Re- quejo indicated that Respondent's signing of the settle- ment agreement meant everybody would have their jobs back About 7 a m on 17 March a large showup of employ- ees took place at the plant with the same group of union officials present to seek implementation of the strike having ended Initial contact was between Requejo and the plant manager, with Anthony Fien also involved as recipient of the Union's formal written notice of uncon- ditional end to the strike As this day unfolded it became apparent that no large or immediate restoration of former strikers to active employment would occur An- thony Fien advised that his first priority was to consult with his attorney, and Moss was found not to be avail- able Throughout the balance of that week there were daily attempts to achieve total striker reinstatement, but Respondent's supervisors only took them back in various limited groupings Jimmez was particularly instrumental 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in this effort, and he testified to a conversation with Paul Fien on 20 March in which he stated that his members were becoming mad and frustrated over the pace of rein- statements Respondent's explanation was generally that a serious rainstorm, which had coincidentally occurred on 16 March, left the plant in damaged condition and re- duced operating capability This factor, coupled with a difficulty in relaying effective instructions to the several shift supervisors, was given as among chief reasons for failure to promptly take back all the former strikers When the poststnke bargaining session of 24 March took place a threshold topic as angrily pressed by Roth- man was Respondent's failure in making reinstatements Much discussion and debate followed with Rothman contending that the settlement agreement should have provided a basis for complete reinstatement by then, and Moss raising the matter of whether Respondent was being tricked into releasing replacements only to face an- other work stoppage, plus the complicating problems of repairing store damage Moss finally agreed that all strik- ers available and reporting by or before 26 March would be restored to active employment Paul Fien's testimony about this timespan was that approximately 50 people showed up at the plant on 17 March over the course of the three shifts, and it appeared the group included infil- trators from among relatives of the strikers or persons from the community seeking this as an opportunity to gain employment Paul Fien described the newly existing storm damage as affecting about 20 percent of the plant, with a large hole blown through the roof and up to 2 inches of rainwater throughout the facility He testified that about two-thirds of the machines were inoperative and a major concern was the electrical hazard of at- tempting repairs with the wet condition By 24 March, when an estimated 60 strikers had been reinstated, he be- lieved there were still at least 6 inoperative machines He recalled that around the first week of April, immediately after all strikers who had actually reported back were re- turned to duty, the repairs of storm damage were finally fully completed The general outline of that first eventful week pro- vides context for what was experienced by certain indi- viduals Conrado Meza had been a third-shift employee when he went on strike He was also holding a part-time custodial job on days with another company adjacent to Respondent Meza credibly testified that prior to his 7 30 a m starting time for this other job he had appeared at Respondent's .facility on 17 March with a group of former strikers and returned again around midnight when his former night shift started In the course of these appearances he spoke with both "Jim" (plant man- ager Schmardebeck) and Andy Moroneso Sr about being picked to return In both cases his request for rein- statement was declined Meza also testified that for an extended time after this date his work at the other com- pany frequently brought him in plain view of both Andy Moroneso Sr and Paul Fien, yet he was never spoken to by either of them about returning to work Josefina Munoz had been a day-shift operator when she went on strike She credibly testified that about a week after the strike ended she went to the plant and in- quired of a new secretary if Respondent had any work for her After a negative reply on this occasion she re- turned again about 2 weeks later and made a similar in- quiry to the same secretary This time she was given an employment application which she completed and re- turned the next day This did not result in any oral recall Graciela Lucatero had been a third-shift operator when she went on strike She credibly testified that on 17 March she went to the plant in the morning and re- quested to speak with Andy Moroneso Sr When he ap- peared Lucatero asked for her job back, but he refused her She was soon, however, reinstated after receiving a message that she should report back Celina Bahena had been a day-shift operator when she went on strike She reported to the plant with a large group on 17 March, but had no conversation with per- sons from management About a month later she again returned and spoke with Andy Moroneso Sr in a con- versation where Respondent's new secretary was inter- preting In this manner she asked for her job back and questioned why new people were being hired Bahena credibly recalled that Andy Moroneso Sr would only give her an employment application which she complet- ed and returned the next day Maria E Torres had been a third-shift operator when she went on strike She credibly testified to appearing at the plant on both 17 and 19 March, but did not engage any supervisor in discussion on either occasion By June she was still not reinstated and had initiated an unem- ployment compensation proceeding In the course of context with a state employee, this person told her that records of the public agency showed she had received a letter from Respondent offering her reinstatement A completely separate branch of salient poststnke mat- ters concerns Respondent's contention that backpay was cut off in late March for various employees based on written reinstatement offers issuing at that time Here the context was that by 28 March all strikers for whom con- venient contact by their showup or otherwise could be made had been reinstated An uncontacted group of about 16 persons were identified by Respondent's office manager Louise Hansen She testified to preparing letters dated 28 March for the signature of Paul Fien and ad- dressed to each of the 16 persons The letter stated, "Job available You may return to work" Hansen recalled mailing each of the letters on Saturday, 29 March by regular, first-class mail Subsequently, on advice of legal counsel Moss, Hansen prepared another set of letters for Paul Fien's signature which were dated 15 July The same persons were ad- dressed by this second letter, with the exception of Luca- tero who had returned to work during the interim How- ever in this instance Hansen sent the 15 July letters by certified mail, return receipt requested The text of each letter was According to Company Records, you were sent a letter on March 28, 1986 offering you reinstatement You have never responded to that letter A job is still available If you do not report to work within ten days, I shall assume that you no ANAHEIM PLASTICS 95 longer have any interest in ever working for Ana- heim Plastics, Inc The Postal Service returned five of these letters as unde- liverable because of an unknown addressee or that they were unclaimed One of these undeliverable letters had been addressed to Bahena, whose new current address was later reported to Respondent 9 On this basis a repeat letter dated 26 September 1986 was sent certified mail to her alone and received in her behalf the next day by Munoz G Profile of Individual Employees Involved Initially paragraph 10(b) of the amended consolidated complaint lists 37 names as persons who Respondent al- legedly failed and refused to reinstate from and after 17 March to particular later dates This columnar form of pleading was modified in content, but not in form, by a denominated "List 1" portion of a "Partial Stipulation IV" which comprises Judge's Exhibit 72 By amendment at hearing General Counsel removed Rosa A Cortez, Luciano Leyva, and Ricardo Martinez from the list, and a stipulation established that the person named as Carmen Torres was in fact the same person also listed as Mana C Torres (Also see fn "1" below ) Also the name of Petra Gameros appears in paragraph 10(a) of the amended consolidated complaint, but, in contrast to all others similarly situated, was not carried forward into paragraph 10(b) nor otherwise significantly dealt with during the hearing (see Tr 2762-2763) A variety of facts pertain to the remaining 33 persons in terms of their being included with the Union's blanket notice of uncon- ditional end to the strike and Respondent's later action The following table makes more graphic what the record shows in each case Preliminarily, a key to the table is also outlined immediately below KEY A Date to which backpay allegedly would run per amended consolidated complaint paragraph 10(b) B Adjusted date to which backpay allegedly would run per Partial Stipulation IV (Date if listed, 0 = Did not return to Respondent's employ, N =Not listed) C Appearance of name on Union letter of 17 March (Y = Yes, Blank = No) D Named on Resp Exh 6 as person claimedly never having worked for Respondent E Date of return to duty per Resp Exh 7 (if shown) F Sent Resp Exh 7 letter per testimony of Office Manager Hansen (Y = Yes, Blank = No) 9 Bahena testified that shortly after a change of residence from Santa Ana to Anaheim she told Maracela Dorado, her lead lady, that she was moving "to Joserma's Munoz apartment" Bahena added that Dorado said this was fine and she (Dorado) would report the change to the office Dorado agreed about what Bahena had told her, but denied giving the assurance that she would relay the information for company records Hansen testified that in such Instances it is the employee's responsibility to personally appear at the office with their new address G Sent Resp Exh 8 by certified mail per testi- mony of Hansen (D = Delivered, R = Returned by Postal Service to sender, Blank = Not sent) Name A BCDEFG Ambrocio Alcaraz 3/26 3/26 ay Eduarda Alvarez 3/27 3/25 Alicia Arellano 7/15 0 Irma Ayala 3/24 3/25 s Celina Bahena 10/1 0 Y dR Alicia Campos 3/24 3/20 Alicia Carnllo 3/24 Y Y Fermma Castaneda 3/26 3/26 3/27 Rafaela Castaneda 3/26 3/27 3/27 Araceli Castellon 3/24 3/27 ey 3/27 Carmen N De Savedra f 3/24 3/24 Y Y Luis Esparza 3/24 3/24 3/25 Elena Gomez 3/25 Rafael Gutierrez h 7/15 8/4 YD Alicia Jasso 3/24 Graciela Lucatero 4/12 4/11 Luz M Lucatero 3/24 3/26 3/26 Guillermma Martidel 5/15 6/18 Y Y Angel Menthola 4/17 0 N Y R Conrado Toledo Meza 7/15 0 YD Josefina Munoz 7/15 0 ND Gabnela Nunez 3/27 3/28 '3/28 Celia Perez 7/15 0 YD Ana Ramirez k 7/15 0 Y R Mansela Ramos 3/24 3/25 3/25 Rosio Robledo 7/15 0 YD Lucia Romero 3/27 3/28 3/28 Angel Santana 7/15 4/17 Juana de la Torre 7/15 0 Carmen Torres I 3/24 3/24 Maria E Torres 7/15 0 my mD Alicia Vargas 7/15 0 YD Antonia Zamora 5/9 5/8 a However a listed name of those never employed by Re- spondent at "any time" is Ambrocio Alcala b See Tr 2367-72, 2757-58 c This Individual returned to work on an unrecorded date d This individual was sent the later offer of reinstatement dated 26 September 1986 (see R Exh 24) e Both the given name and surname of this individual appear by inconsistent spellings at various places in the record One and the same person is presumed for the spellings Alaceli/- Araseh/Arceli Castellen/Castellon f General Counsel amended the name of this person to Carmen de Savedra Nazano (Tr 74-77) g This individual returned to work on an unrecorded date (See Tr 2759) h The name of this individual was amended to Rafael Rami- rez (see G C Exh 1(aa) and Tr 83-84) The culturally mtncate name of this individual is fully Guillermina Martin del Campo j Shown by the spelling "Graciela" Nunez k One and the same person is presumed from the usages Ana/Anamelva (Maria) Ramirez 1 The name of this Individual was amended to the effect that one and the same person is indicated by Carmen Torres/Mana C Torres/Maria del Carmen Torres (see G C Exh 1(u) and Tr 80) m Shown only by the usage "Marta Torres" 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD H Other Pertinent Evidence 1 Bonus Paul Fien testified that about a week after the strike commenced he made the decision to pay a bonus to cer- tain working employees It was to be $10 per shift, pay- able only to the low earning operators He recalled that numerous complaints of property damage and physical abuse against operators were being made and testified and that he had personally observed window breaking, tire slashing, nail strewing, rock and egg throwmg, the hitting of applicants, and a general blocking of move- ment by persons attempting to enter the plant Paul Fien communicated his decision to Hansen and her payroll as- sistant Eileen Petslupe He asserted that in the confusion of the strike's early days the bonus was not actually ex- tended uniformly to all operators, nor was it made effec- tive only after early February as he had intended Paul Fien discontinued the bonus on 17 March, posting a notice in the plant to that effect Hansen testified that Paul Fien had decided on such a bonus, but confusion of the situation resulted in her start- ing it "a week too early" She recalled his intent as to provide an incentive to operators only for their crossing the picket line Hansen recognized and confirmed payroll records, including those showing a manually prepared check for employee Jeffrey Hunt for the pay ending 27 January which included a $10 bonus 2 Alleged independent 8(a)(1) violations In regard to those subsections of paragraph 12 in the amended consolidated complaint as to which evidence was proffered, the first incident relates to an alleged un- lawful threatening of employees with loss of wages done at the plant on or about 15 April On this point Jasso and Patricia Guzman both testified for General Counsel They had each been strikers, yet are currently employed by Respondent Jasso testified that she and other employees were di- rected by their supervisor to a meeting in Paul Fien's office on 15 April When all were present and with a secretary to translate Paul Fien's spoken English, Jasso recalled his first mention of rumors that another stnke would occur The employees present expressed doubt of this, but Paul Fien continued by saying that if they should go on strike they would not get anything for it and only make his father very mad which could result in his paying the workers only "up to $2" Guzman corroborated the preliminaries of this meet- ing, and then testified how an employee participant com- plained of the $10 daily bonus that had been paid in asking if a raise in pay could be expected She recalled Paul Fien answering that while he would do it he could not make a promise because "his father was very mad" Paul Fien's version is that he had called this meeting of several employees felt to be "representative," and used a prepared text furnished him by legal counsel Moss as the basis of his remarks Paul Fien thought that he had not deviated from the written speech The full text is I've heard from a lot of people employees are talk- ing about going out again I'm concerned because I've heard about a strike from several employees I hope there won't be another strike A strike is no good for anyone and won't help anyone I know dad and he won't do anything for employees just because they strike Dad won't give raises Just be- cause they go on strike I hope for your sake and mine their [sic] will be no strike Paul Fien denied making any extraneous reference to $2 per hour while speaking, or threatening to cut the wages of employees "in any manner whatsoever" He did recall questions being raised by the employees present, and stating that in regard to any possible wage raise this was handled by his father A second alleged independent 8(a)(1) violation relates to happenings on or about 12 April Here the amended consolidated complaint alleges that Andy Moroneso Sr, while at the facility, threatened employees that they would be discharged if they engaged in a strike General Counsel's witness here as Del Campo, who had been a striker and returned to duty about 3 months after the strike ended which was the first time she had inquired about coming back She testified that on her first day back to the third shift Andy Moroneso Sr spoke to her in his small plant office, saying it was the last time he would give her work and if she went on another strike there would be no more work On this point Andy Mor- oneso Sr denied telling Del Campo that she would not have work because of striking, or even that he had re- ceived poststnke calls from her seeking a return to duty The third alleged independent 8(a)(1) violation requir- ing resolution relates to an episode on or about 17 April, when receptionist Isela Contreras is attributed as saying that employees could not be reinstated because of their actions in support of the strike Here the testimony in support of this allegation is that of Bahena She recalled that about a month after the strike ended, and in the course of her contacts seeking a return to work, the "new" secretary had told her she could not expect her job back after being one of those "making noise outside" Bahena also testified that in the course of translating re- marks by Andy Moroneso Jr this same secretary attrib- uted to him the statement that there was not enough work for her because she had been a person "outside in- volved in the strike" Andy Moroneso Jr, who is not the person allegedly making the statement to which the epi- sode pertains, denied any form of such remarks, while Contreras, similarly denying such an utterance, testified that she was not hired until 20 May and did not become the receptionist until at least July I Credibility Respecting the 8(a)(1) allegations of the case, I credit Jasso over Paul Fien in regard to his meeting of 15 April On this point Jasso was of impressively assured demeanor, which I take as an indication of the correct- ness of her testimony I do not, however, accord similar credibility to the testimony of Guzman, as this witness seemed too uncertain of her experiences for her offering ANAHEIM PLASTICS 97 to be accepted In keeping with this assessment, I dis- credit the denials of Paul Fien that he had not linked the strike activities of employees to the prospects for wage increases, or that their pay might be reduced for such ac- tivity On the second allegation in this branch of the case I credit Del Campo whose demeanor, while of marginal persuasiveness, was sufficient for me to believe that she accurately recalled remarks made to her by Andy Mor- oneso Sr Conversely, I discredit his clipped denials as being of doubtful veracity Respecting the alleged episode with Contreras, I was highly impressed with her demeanor and credit her testi- mony over Bahena's where in conflict Significant here is the uncontradicted fact that she was not serving in the receptionist position until July, and I cannot accept Ba- hena's version when her time estimate is so grossly in error As to 8(a)(3) allegations of the case, the chief factual issue here is whether Hansen actually did dispatch the letters dated 28 March I find her description of the entire process unconvincing, and note the conflict be- tween her testimony and that of Paul Fien who contra- dicted her in regard to his role in development of these letters Furthermore, numerous employees credibly denied receipt of such a letter on or about 29 March, and as an overall matter I am persuaded to believe that they were not sent On a separate point affecting 8(a)(3) allegations, I credit Dorado over Bahena with respect to whether the former agreed to relay to Respondent's office the em- ployee's reported change of residence Here I discredit Bahena's testimony on demeanor grounds, and reject her claim that Dorado took responsibility for assuring her home address was accurate and current in Respondent's records In reaching this credibility assessment I am par- ticularly influenced by Dorado's firm and convincing denial of undertaking any commitment of this type The aspect of the case alleging a violation of Section 8(a)(5) involves numerous shadings of difference as be- tween the key participants in the bargaining process At the root of things, it is not essentially a matter of assess- ing credibility as it is assessing the overall course of bar- gaining in a resolution of the issue I do, however, be- lieve that in minor regards both Rothman and Moss have exaggerated certain events or remarks, and I therefore rely on Requejo's more balanced and candid recollection of the entire bargaining process On two points I make specific credibility findings, namely (1) that at no time did Moss state that Respondent would absolutely not continue to bargain, and (2) that he has the more accu- rate version of unfolding bargaining dialogue about the subjects of union security and check-off, as this occurred on 11 July and contrasted with Rothman's recollection on the point J Analysis 1 Allegations of 8(a)(1) violation From the evidence I find more convincingly proba- tive, I hold that in Paul Fien's meetmg with several sum- moned employees on 15 April he departed from the text of his planned remarks In so departing he expressed, al- lowing for some ambiguity stemming from the transla- tion process, that employees would stand to have their wages reduced should another strike eventuate At this point in time Respondent was fully concerned that it might face on-again off-again work stoppages by its reg- ular work force This concern had been fervently raised in bargaining sessions immediately following end of the strike, and impelled legal counsel to prepare a special proposed waiver on the point I am satisfied that Paul Fien was drawn into unrehearsed answers to questions posed by the summoned employees, and in the process announced that his father, Respondent's ultimate author- ity figure, would impose punitive wage cuts on employ- ees if they inconvenienced Respondent further by an- other strike As to other allegations made in paragraph 12 of the amended consolidated complaint, I note that General Counsel chose not to proffer evidence about subpara- graph (13), for which it can be disregarded In the follow- ing subparagraph (c) the person named as committing an unlawful verbalism on or about 12 April was Andy Mor- oneso Sr Here, the evidence sufficiently develops that this allegation can be associated to this individual, and I hold there is adequate proof on the point The final sub- paragraph (d) of this part of the amended consolidated complaint relates to the described experiences of Bahena in seeking a belated return to work General Counsel did not refute the fact that Contreras was not functioning as a receptionist remotely near in time to the alleged date of occurrence on or about 17 April For this reason, cou- pled with Contreras' credible denial of remarks sup- posedly made in Respondent's office, I find no violation of the Act is shown based on the allegations of subpara- graph 12(d) 2 Allegations of 8(a)(3) violation a Striker reinstatement Certain principles governing the reinstatement rights of economic strikers are by now well-settled In NLRB v Fleetwood Trailer Go, 389 U S 375, 378 (1967), the Su- preme Court held that if, after conclusion of a strike, the employer "refuses to reinstate striking employees, the effect is to discourage employees from exercising their rights to organize and to strike guaranteed by [Sections] 7 and 13 of the Act Accordingly, unless the em- ployer who refuses to reinstate strikers can show that his action was due to 'legitimate and substantial business jus- tifications,' he is guilty of an unfair labor practice The burden of proving justification is on the employer" The Court in Fleetwood relied on as decision in NLRB v Great Dane Trailers, 388 U S 26, 34 (1967), where it held that "once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him" In reevaluating the rights of econom- ic strikers in light of Fleetwood and Great Dane, the 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board in Laidlaw Corp, 171 NLRB 1366, 1369 (1968), stated that The underlying principle in both Fleetwood and Great Dane, supra, is that certain employer conduct, standing alone, is so inherently destructive of em- ployee rights that evidence of specific antiunion mo- tivation is not needed [footnote omitted] Specifical- ly in Fleetwood, the Court found that hiring new employees in the face of outstanding applications for reinstatement from striking employees is pre- sumptively a violation of the Act, irrespective of intent unless the employer sustains his burden by showing legitimate and substantial reasons for his failure to hire the strikers For the majority of those individuals named in para- graph 10(b) of the amended consolidated complaint I find that Respondent satisfied their reinstatement rights The holding is based on two grounds First Respondent has adequately demonstrated that the unfortunately timed storm of 16 March left its normal manufacturing capabilities so disrupted that a period of recovery was necessary The acceptable testimony of Paul Fien estab- lished not only that production machines were temporar- ily inoperative, but the plant itself was full of standing rainwater and a danger of injury from electrical malfunc- tioning also existed These special conditions were reme- died with reasonable promptness, and numerous strikers were returned to their jobs even under these transitional handicaps Given the abruptness of a declared end to the strike and the coincidental advent of storm damage, I be- lieve a 2-week period must be allowed on these grounds alone for Respondent, as a matter of legitimate and sub- stantial business reasons, to fulfill reinstatement rights Accordingly, I decline to find any violation under Sec- tion 8(a)(3) as to persons listed in paragraph 10(b) of the amended consolidated complaint whose actual reinstate- ment occurred on or by 28 March See Snowshoe Co, 217 NLRB 1056 (1975) Respondent's liability in this regard generally runs to 15 July In the cases of Del Campo, Lucatero, Menthols, and Santana the backpay due them is cut off at the record dates of 18 June, 11 April, 17 April, and 17 April, respectively In the particular case of Zamora I find no backpay is due, because the record does not sufficiently show her prepared to return from child delivery any ear- lier than 8 May A second and separate ground on which to find in this manner is also present This stems from the settlement agreement which, although forcefully argued by Roth- man as a basis for Respondent to have achieved strike re- instatement during the week of 17-21 March, was not even approved by the Regional Director until 25 March The settlement agreement routinely provides that "Per- formance [by Respondent] shall commence immediately after this Agreement is approved by the Regional Direc- tor," and although dynamics of the settlement agreement being unilateral in nature and under objection by the Union explain why it was a lively topic, this does not change the legal rights and obligations created thereun- der As an adjustment of then-active unfair labor practice charges, Respondent could be permitted to defer action until it was at least known that its proposed remedial steps were governmentally sanctioned Once this oc- curred the progress of reinstatement, as to which consid- erable momentum already existed from the week before, could reasonably expect fulfillment by the final 3 days of this last week in March Respondent has forcefully argued that the Board's de- cision in Indiana Ready Mix Corp, 141 NLRB 651 (1963), insulates it from any finding of violation under this branch of the case, because the Union's conduct ne- gated any unconditional basis to its written notice of the strike having ended I disagree with Respondent's view of Indiana Ready Mix, holding instead that it is readily distinguishable from the facts here While there are struc- tural similarities between the two set of facts, I note that Indiana Ready Mix involved "a newly formed corpora- tion," which had taken over a predecessor's business and within 30 days began what turned out to be a short course of bargaining with the labor organization that represented employees When negotiations were unsuc- cessful a strike ensued which was later orally advised to be ending The Board approved that employer's pro- posed seeking of a nonstnke guarantee because of com- mercial realities associated with the attempt to "restart its business" Those realities of capitalizing and initiating a new business undertaking do not apply where an estab- lished enterprise is struck, and on this basis I reject the reasoning advanced by Respondent under Indiana Ready Mix Cf Brooks, Inc , 228 NLRB 1365 (1977) A contrary result obtains for 15 persons to whom rein- statement was not timely offered This is the group to whom I find letters dated 28 March were not sent, and in any event the wording of such letters did not contain an unequivocal offer of reinstatement In all such in- stances backpay continues to the date of 15 July when the deficiency was cured I reject General Counsel's con- tention that Bahena is due backpay until 26 September 1986, holding instead that she failed to make sufficient notice of address change to her employer b The bonus An applicable statement of law is found in Aero-Motive Mfg Co, 195 NLRB 790 (1972), regarding special com- pensation awarded to those who do not strike In its opinion the Board wrote we cannot put on blinders and fail to look at the impact of the payment on employees at the time it was made and for the future Once granted, the former strikers were plainly disadvantaged with re- spect to the nonstnkers and it was equally plain that the distinction was drawn solely on the basis of who engaged in protected, concerted activity and who did not This not only created a divisive wedge in the work force, but also clearly demon- strated for the future the special rewards which he in store for employees who choose to refrain from protected strike activity [This employer] also contends that the purpose of the payments, and its motive in making them, was ANAHEIM PLASTICS 99 simply to compensate the nonstrikers for the special risks which were involved in view of the violence which took place dunng the strike However [this employer] may have characterized the payments, we believe that the principal impact of the payments will be to discourage employees from engaging in protected activity in the future Thus even if Respondent's officers and agents who decided upon the bonus payments acted solely out of a desire to provide additional compen- sation to employees whom Respondent believed to have risked personal harm, our decision herein would be different We are concerned not with the subjective motivation of [this employer but] with the objective impact of its action The reward here was not made to employees who had encountered violence in contradistinction to employees who had not encountered such vio- lence Greater payments were not made to employ- ees who had run more risks than others Rather, the only visible line drawn between employees who re- ceived the payment and employees who did not re- ceive the payment was the line between the strikers and nonstrikers [T]herefore, it seems to us that the impact on employees is plain for all to see--that nonstrikers did, and presumably will in the future, receive special benefits which strikers will not re- ceive Employer actions which have this impact are violative [Id at 792] Here the bonus payment had similar impact as a dis- criminatory distinction between employees Glazers Wholesale Drug Go, 211 NLRB 1063 (1974), Burlington Homes, Inc , 246 NLRB 1029 (1974) Respondent con- tends that it is exonerated because the bonus payment was not withheld until the strike had actually ended This argument is not germane, because the claimed busi- ness justification is not shown to have arisen at the point bonus payments were initiated to nonstrikers in late Janu- ary Paul Fien's testimony on the subject does not estab- lish that any risks of injury or exposure to violent strike conduct had occurred at the point in time that such a monetary reward was actually extended Cf Rubatex Corp, 235 NLRB 833 (1978), see also Huck Mfg Go, 254 NLRB 739 (1981), enfd in relevant part 693 F 2d 1176 (5th Cir 1981) 3 Allegations of an 8(a)(5) violation a Introductory Section 8(d) of the Act states that the duty to bargain requires an employer to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negoti- ation of an agreement or any question arising thereunder but such obligation does not compel either party to agree to a proposal or require the making of a conces- sion" In determining whether an employer has bar- gained m good faith, it is necessary to scrutinize the to- tality of its conduct From the context of an employer's total conduct, it must be decided whether the employer is lawfully engaging in hard bargaining to achieve a con- tract that it considers desirable or is unlawfully endeav- oring to frustrate the possibility of arriving at any agree- ment Sunbeam Plastics Corp, 144 NLRB 1010 (1963), Otis Elevator Go, 283 NLRB 223 (1987) As to subject matters of bargaining an early point of departure is found in the Supreme Court's holding, after extended analysis on the point, that the Board may not, either directly or mdirectly, compel concessions or oth- erwise sit in judgment upon substantive terms of collec- tive-bargaining contracts NLRB v American National Insurance Go, 343 U S 395 (1952) This decision was soon applied to expect under the law that an employer was nonetheless "obliged to make some reasonable effort in some direction to compose his differences with union, if [Section] 8(a)(5) is to be read as imposing any substan- tial obligation at all" NLRB v Reed & Prince Mfg Go, 205 F 2d 131, 135 (1st Or 1953), cert denied 346 US 887 (1953) By a decade later the Board was confident that persua- sive evidence of an employer harboring "no sincere desire to reach agreement" could be found in its insist- ence that the certified representative abdicate its role in certain areas, "including the vital area of wages," and make concessions which the employer "could not rea- sonably expect any self-respecting union to make" Berger Polishing, Inc , 147 NLRB 21 (1964) This now- seeming quaint statement of rationale has itself faded in a flurry of recent or practically current decisions in which the Board and courts have more sophisticatedly treated the perplexing notion of alleged mere surface bargaining In Atlanta Hilton & Tower, 271 NLRB 1600 (1984), the Board drew on earlier cases in stating certain beliefs as to how the general good-faith obligation of Section 8(d) could be understood In doing so it was held "necessary to scrutinize an employer's overall conduct," even though a party "is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree" Id at 1603 These views were followed by a summarizing statement of principle that while "adamant insistence on a bargaining proposal is not of itself a refus- al to bargain in good faith other conduct" Could be indicative that the requisite statutory obligation was lack- ing by intent or fulfillment The Board enumerated such other "conduct" as mcludmg (1) delaying tactics, (2) un- reasonable bargaining demands, (3) unilateral changes in mandatory subjects of bargaining, (4) efforts to bypass the union, (5) failure to designate an agent with sufficient bargaining authority, (6) withdrawal of already agreed- upon provisions, and (7) arbitrary scheduling of meet- ings In a recent sweeping restatement the Board undertook to refine earlier "imprecise" description of the process used by the Board in evaluating whether a party has en- gaged in good-faith bargaining Reichhold Chemicals, 288 NLRB 69 (1988) '° Thus a totality of conduct should be I ° General Counsel's bnef noted that at as time of filing on 22 October 1987 a motion for reconsideration, which in fact resulted in Reichhold was then "still pending before the Board ", Citation of the ongmal, now- supplemented Decision and Order is Reichhold Chemicals, 277 NLRB 639 (1985) 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reviewed, and this does not preclude reading the lan- guage of contract proposals and examining "insistence on extreme proposals in certain situations" The use of At- lanta Hilton's "seven traditional mdicia" of bad-faith bar- gaining was continued, taken in connection with teach- ings of Seattle-First National Bank v NLRB, 638 F 2d 1221 (9th Cir 1981), and NLRB v Mar-Len Cabinets, 659 F 2d 995 (9th Cir 1981), the latter case explaining that although caution must be exercised in mfemng motive from the content of bargaining proposals it is also neces- sary to complete this reasoning under guidance which, as relevant to that case, was stated as following Nevertheless, proposal content supports an infer- ence of intent to frustrate agreement where, as here, the entire spectrum of proposals put forward by a party is so consistently and predictably unpalatable to the other party that the proposer should know agreement is impossible b Application of Section 8(d) In terms of bargaining dynamics alone, separate from other obligations and provisos not applicable to this point of discussion, the Act expects sincere "meet and confer" activity between the parties In this case I see no basis to hold the Respondent has not minimally fulfilled this expectation Such fulfillment may have caused the Union chagrin, exasperation, and ultimately practically a cold fury, however the process simply does not require that every participant be equable, cooperative, or even pleasant Two opposing economic interests are involved, and while dealings are typically done in conference-style settings of preparation, negotiation, and continuity, this does not mean that the process will or must be free of disorderliness, petulance, and disappointing slowness The fact of things was that a reasonably useful pace of bargaining sessions was carried out, with an appropriate and mutually agreeable place for negotiations used in all instances On the two limited occasions that Moss' law office was used rather than the usual hotel facility there is no claim that such a location was "badly suited" Cf West Coast Casket, above at 636 The Union's ambitious objective of reaching a rather elaborate, industrial-type initial collective-bargaining agreement with this small specialty employer, one whose employment program was largely devoid of significant fringe benefits or procedural nghts, was seriously ham- pered by the small amount of time that was actually de- voted between the parties to true contract bargaining Given that the process spanned more than 10 months, it is notable that perhaps as little as 30 hours of serious talk relevant to an 8(a)(5) issue of this type actually occurred The estimates of time expended in the 15 meetings vary widely, for some witnesses cast their recollection in terms of a starting and ending time while others account- ed for delays, caucusing, and digression to topics other than the respective substantive contract proposals I am satisfied that the pure bargaining time approximated 2 hours per session, but more importantly that this sparse- ness of bargaining was a matter of circumstance not fault Some of the larger spaces in the meager bargaining se- quence were clearly not a matter that would constitute an indicator of Respondent's bad-faith approach to the process The 1-month hiatus from 17 December to 21 January was a routine holiday and year-end delay, the early 1986 strike slowed progress and introduced signifi- cant extraneous subjects for discussion, Rothman's un- availability because of religious observance on 29 Apnl resulted in demonstrably little achievement on that date, and the lapse in negotiations from then until July was as much a matter of Rothman being drawn into the bellig- erent exchange of letters as any other reason Notably, and separate from his broadsidmg rhetoric as to tactics, perceptions and styles, Moss even as early as his letter of 14 May did expressly state, "I am willing to meet with you again " Overall, I find no basis to support a claim of bad-faith bargaining in terms of literalisms taken from Section 8(d) c Other applicable indicia The focus of Atlanta Hilton on specific mdicia showing a lack of good faith in bargaining is a useful point of de- parture in analysis of a case such as this For reasons al- ready stated, or because the notion is absent here, the conduct identified in Atlanta Hilton as "delaying tactics," "unilateral changes in mandatory subjects of bargammg," "efforts to bypass the union," "failure to designate an agent with sufficient bargaining authority," and "arbi- trary scheduling of meetings" require no treatment However the two remaining mdicia, those of "unreason- able bargaining demands," and "withdrawal of already agreed-upon provisions" were vigorously litigated as practically the essence of General Counsel's assertions that Section 8(a)(5) was violated Thus it is inevitably necessary to treat the subjects of this bargaining process, particularly under the fresh guid- ance of Reichhold II An inviting point to begin with is the Union's own disclosure of the "four main issues" on which it hoped to prevail As surviving into the post- strike phase of bargaining they were (1) wages, (2) union security, (3) checkoff, and (4) length of contract Each of these items was affected by the fundamental reality that Respondent viewed Itself as being in a strong bargaining position and not readily susceptible to making concessions More importantly, Moss articulated a ration- ale on each of the items, and, distasteful as it was, argued forcefully and consistently that his own position be adopted As to the basic matter of wages, Respondent simply claimed that a labor market condition of its locale did not compel higher compensation to attract workers, nor did it believe that the skills level primarily utilized in its operations warranted higher pay than the legal mini- mum wage in effect Its own initial written proposal on wages sought to retain almost untrammeled discretion in any wage changes, but there was an early agreement to "red circle" all existing rates so that at least employees would not face the startling prospect of having a collec- tive-bargaining representative result in a pay decrease The adamant refusal to make any concessions on pay rates was maintained throughout the bargaining, and in- furiating as it was to Rothman as he claimed that the ANAHEIM PLASTICS 101 Union must achieve higher pay for its bargaining unit, this is simply not the law nor, standing alone, an indica- tor of bad faith As to union security Respondent initially proposed a standard "open shop" clause This subject was painstak- ingly and grudgingly modified over the course of bar- gaining, with a result that after negotiations on July 7 a "maintenance of membership" provision was structured, having as an added unique feature that should any person hired in the future become a member of the Union this person will similarly be required to continue such membership as a condition of employment This special language moved the entire clause toward more of a "union shop" type provision, and while not truly so be- cause the Union's success in having compulsory member- ship within the bargaining unit take root would hinge on the personal decision on persons newly hired from time to time, it did at least show that Moss had selected areas of flexibility The subject of checkoff requires dual attention because it was a matter only conditionally agreed upon, and as a bargaining dynamic was actually withdrawn from areas of agreement on 30 July Initially, however, what may be noted is that until that point of withdrawal it had evolved from an initial exchange of proposals in which Respondent adopted the Union's essential language that a standard dues-deduction system apply with proceeds re- mitted within 15 days to final, conditional language on the subject Along the way Respondent dropped its original Inventive notion of charging 50 cents per deduc- tion, and m exchange secured a routine indemnification paragraph from the Union As to final language on the subject, and separate from the matter of its abrupt with- drawal, I see nothing unreasonable about Respondent's ultimate position here Furthermore its withdrawal as a table subject of bargaining was an allowable give-and- take tactic once the associated subject of union security became changed The matter of contract duration brought out the clas- sic pulling and tugging between such forces, particularly where an initial contract was at stake Understandably the Union first sought a 3-year contract, which is thought of as a favorite way of solidifying status as a collective-bargaining representative This turned into a negotiating point as the Union dropped its demand to 2 years, however Respondent never wavered from its in- sistence on a 1-year contract This reflex, institutional ob- jective is also well-recognized as an attempted limiting of leverage available to a newly certified collective-bargain- ing representative, in areas that can range from the poli- tics of unionism to technical matters such as contract-bar doctrine in relation to future representation petitions The Board noted in Atlanta Hilton that "The Company's firmness in insisting on a 1-year extension of the current contract does not of itself constitute bad faith," and I see this analagous situation no differently There are, of course, numerous other subjects cogniza- ble under the Atlanta Hilton indicia item of "unreason- able bargaining demands" Merely because the Union named its four priorities, this does not mean that Re- spondent was privileged to maintain an unlawful intransi- gence in other areas, or advance proposals that were pal- pably unreasonable Consideration of such other areas as existing on the table and between the parties can best be split mto those of an economic nature and those dealing with noneconomics On the subject of holidays, Respondent originally pro- posed its existing set, and over the course of negotiations conceded some further benefits on the point As to vaca- tions for employees this had not been an existing benefit, and Respondent's response to the Union's optimistic for- mula topping with 3 paid weeks after 5 years of seniority was structured much more tightly by the offering of unpaid time off and no true vacation pay at all until at least 5 years' employment This gap was gradually nar- rowed in negotiations, and eventually stood with soft- ened positions on both sides and never seriously cast as a subject that would block ultimate agreement The matter of group health insurance coverage for em- ployees was heavily debated throughout the entire course of negotiations Initially this focused on whether and at what cost the Union could match Respondent's "stop loss" protection, whether more effective adminis- tration of benefits could result from the union or compa- ny plans, and the more collateral protest by Moss about Rothinan's unique loyalty to his plan as well as wasteful accusations about its basic validity 11 The reported $1- per-employee "stop loss" cost was never fully resolved, but in a more salient sense Respondent cannot be faulted for persistence in attempting to maintain its own group Insurance plan for this significant condition of employ- ment More importantly, Moss gave reasoned explanation for the position he pressed on this subject (Tr 2031, 2041, 2044-2045, 2070) I need advance no value judg- ment about these explanations, suffice it to note that his fundamental claim about how Respondent's present carri- er was well-rated is respectfully founded In regard to major group insurers there are rating organizations, just as many other aspects of endeavor are rated by pollsters, analysts, and established organizations of definite prestige and recognition Moss referred specifically to "Best's," an established entity that currently describes its function as Evaluating the fiancial condition of an institution cannot be considered an exact science This is par- ticularly true of life/health insurance companies, whose assets largely are interest-sensitive invest- ments such as bonds, and whose liabilities such as reserves, primarily are based on actuarial projec- tions of future payments to be made on current policy contracts The objective of Best's Rating System is to evaluate the various factors affecting the overall performance of an insurance company in order to provide our opinion as to company's relative fman- " On vanous occasions Moss cantankerously or mischievously con- tended that the Union's health insurance plan was "illegal" because it lacked management trustees Rothman repeatedly explained that as a pre- Taft-Hartley plan ongmating in the early 1940s, the Furniture Workers Insurance Program was exempt from having bilateral trustee composi- tion Applicable Sec 302(g) of the Act exempts the restnctions on contn- butions to trust funds, otherwise lawful, when they were appropriately in existence "prior to January 1, 1946" 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cial strength and ability to meet its contractual obli- gations The procedure includes both a quantitative and qualitative review of the company The quantitative evaluation is based on an analy- sis of the company's financial condition and operat- ing performance utilizing a series of financial tests These tests measure a company's performance in the three critical areas of Profitability, Leverage and Liquidity in comparison to the industry norms established by the A M Best Company The norms are based on an evaluation of the actual perform- ance of the life/health industry Our review also includes a qualitative evaluation of the amount and soundness of a company's rein- surance, the quality and diversification of invest- ments, the valuation basis of policy reserves and the experience of management Various other factors of importance are also considered, particularly where some condition exists which may affect the ability of a company to meet its contractual obligations Best's Agents Guide to Life Insurance Companies, 14th Annual Edition (1987), A M Best Company, Oldwick, New Jersey Numerous other or minor economic subjects, or quasi- economic subjects, were also regularly covered in the negotiations, with progress on each ranging from none to complete, but often only slight The Union eventually dropped its demand for a pension plan, and the subjects of overtime, call-in pay, and shift bonus all received ap- propriate and seemingly open-minded treatment On the broad category of noneconomic subjects those most significant were seniority, management rights, grievance/arbitration procedure, and no-strike/no-lock- out language language As to seniority the parties had reached their own elaborate versions of language, but about which there was considerable unanimity and in the course of which Respondent had progressively dropped its proposed length for a probationary period 12 Manage- ment rights was an agreed-upon subject by the end of March, as was the no-strike and no-lockout article The detailed phraseology for a grievance procedure, embody- ing recourse to FMCS with shared costs, had been set- tled as early as December Other agreed-upon subjects were union recognition, hours of work and overtime, call-in pay, and information to union (Respondent drop- ping an initial proposal to charge $100 for each penodic seniority list), rest and meal periods, health and safety, bulletin boards, plant visitation by union representatives, union representation by stewards, and a legal separability clause I find from the position on all subjects that no ac- tionable unreasonablmess is established for the bargaining demands made by Respondent, and that under Reichhold II a review of Respondent's "overall conduct—including its proposals" establishes only that it engaged in hard, rather than surface, bargaining What must also be fac- tored into the analysis is the legitimacy of an employer exhibiting toughening or regression in its bargaining pos- " Quite early in negotiations Respondent withdrew language that would have subjected current employees to renewed probationary status ture once it has actually weathered a strike as was the case here Hendrick Mfg Co, 287 NLRB 310 (1987) The second untreated indicia of Atlanta Hilton as ap- plicable here is that of withdrawal of already agreed on provisions from the table That was actually only argu- ably done in one significant regard when the checkoff proposal of Respondent was withdrawn at a December meeting While not helpful to the slow process of negoti- ations, I do not see this isolated instance as one which would show bad faith, since the subject was soon re- introduced and ultimately nearly agreed on Cf Pitts- burgh-Des Moines Corp v NLRB, 663 F 2d 956 (9th Cir 1981) Its withdrawal a second time on 30 July was based not only on bona fide dispute about whether a re- lated change in union-security language permitted this, but was a step taken by Moss in which his view had better support from the facts Furthermore, Moss' origi- nally stated "ground rules" for bargaining contemplated such action by a party in reserving the right of "delet[ing]" proposals once made d Summation This course of bargaining was tormented by rancor, impracticality of long-distance dealings, and diametrical- ly opposite views about whether or not this Employer should hberalizingly enter into a first-time contract with generous and altruistic concessions Rothman recognized the value of language just as fully as Moss, and sought to slant each subject in his own interest He earnestly hoped for a new contract with shining and welcome provisions for the gratification of represented employees These would include fine economic benefits as a reward for their choice of unionism to supplant unrepresented deal- ings with their Employer in the past Whether Moss' responsive conduct is termed "tough," "hard," "stubborn," or "tight" bargaining, the essential conclusion that results is that it was not unlawful as a matter of statute or doctrine What is true is that Moss capitalized on topics collateral to the bargaining process, and deftly consumed the limited timespans that were available to these negotiations This tactic was also re- flected in what he wrote, as in his answering letter dated 12 March wherein he opened with chiding verbiage which seized upon Rothman's uncustomary choice of let- terhead to create a slight ploy of form not substance This tenacious style also appeared in the composition of bargaining proposals by Respondent, where often illuso- ry passages were written or advantage was slyly sought out of predictable application of labor law principles Here, for example, Judge's Exhibit 47, page 3, section 2 may be looked at, proposing that the no-strike prohibi- tion not apply if the Board were to determine that a par- ticular strike was in protest of employer unfair labor practices Similarly section 4 of that same document pro- posing that discharge of an employee for violation of the nonstnke clause be subject to the grievance procedure contains the clever provision that the employer's action "must [bej sustam[edr if an arbitrator finds that the con- duct was "in fact" engaged in by some individual em- ployee Again such language would severely limit any benefits of the no-strike clause being a gnevable area ANAHEIM PLASTICS 103 The case may well represent another instance of matters recently testified to before the United States House of Representative's NLRB oversight hearings, in which one witness described negotiations during 13 bargaining ses- sions held over a span of 2 years with agreement reached on no more than one-fifth of the contract language and where, "The company lawyer insists on negotiating and disputing every word and every sentence" Analysis!- News and Background Information, 127 LRR 370-371, Bureau of National Affairs (3-21-88) Frustrating as this may seem when an objective is sought to be accom- plished more easily, the fact remains that the words, sen- tences, and general composition of a collective-bargain- ing agreement, as well as economic benefits conferred or resisted, constitute the essence of terms and conditions of employment which previously existed in free-floating form The negotiating process represents the only time that such language can be settled, and it is an important endeavor for this will govern interpretation and applica- tion over whatever length of contract results It is in this sense, and presumably for this reason, that Section 8(d) in its literal and doctrinal sense requires apparent good faith, but permits a wide range of style and certainly no preordained configuration of what must be conceded Overall, the evidence does not establish a showing that Respondent's course of bargaining, or its associated con- duct, evinces a fixed intention not to reach agreement by acting out only a surface appearance of good-faith bar- gaining 13 4 Other holdings a Duration of strike I find no unfair labor practice to have been committed by 21 January, and thus under my view of the case the strike could only be economic in nature at that time However, even should Respondent be ultimately found to have bargained unlawfully at the point of the strike I would alternately find that it was still merely economic in nature To be deemed an unfair labor practice strike, there must be a causal relationship, in whole or in part, be- tween the unfair labor practices of the employer and the strike, and mere coincidence does not suffice Tufts Bros Inc , 235 NLRB 808, 811 (1978), Brunswick Hospital Center, 265 NLRB 803, 814 (1982) The evidence con- cerning the employee meeting held on 19 January shows only that a show of force was solicited in terms of Re- spondent's failure to make wage and other concessions The requisite causal connection is thus not present as be- tween a finding of surface bargaining and the motivating reasons for engaging in strike action b Conversion theory During the course of the strike I find that Respondent violated Section 8(a)(3) by instituting the bonus plan for 13 This holding takes Into account Respondent's claim as negotiations opened that the pending unfair labor practice charge be withdrawn I do not see this position as an impediment to bargaining, and note that it was rather routinely resolved once Rothman and Moss had their first oppor- tunity for face-to-face discussion its replacement and nonstriking employees Contrary to General Counsel's contentions, however, I do not find sufficient evidence to show that the strike was in any way prolonged by this violation Discussion of the sub- ject between the parties showed that the Union consid- ered it a humiliating annoyance, but this did not translate into any real extension of the strike itself The Union ended what turned out to be a strike of doubtful effec- tiveness at a tactical point of its own choosing Mere awareness of an unfair labor practice is not enough to convert the essential character of a strike once underway and with momentum of its own For General Counsel's conversion theory to prevail, more evidence of collective employee protest would have to be shown The record is msufficent on this issue to say, for the academic purposes involved, that strike action having the initial character of economic pressure converted to being in the nature of an unfair labor practice strike Sedloff Publications, 265 NLRB 962 fn 2 (1982) c Tape recording Respondent's introduction of the provocative tape re- corder at the negotiating session of 21 January has been considered in terms of the 8(a)(5) issue Here the essen- tial point is that Respondent did not insist on such ma- chine recording of the bargaining process to the point of impasse While protested, the technique was but another irritant to Rothman, and offset in significant regard by the fact that Requejo consistently took extensive notes of the session While this approach is not to be condoned, Respondent's action does not demonstrate a violation of the Act, nor add to the general claim of bad-faith bar- gaining See Bartlett-Collins Co, 237 NLRB 770 (1978) 14 d The Union's merger In Amoco Production Co, 239 NLRB 1195, 1196 (1979), the Board stated An affiliation is the alignment or association of a union with a national or parent organization An af- filiation does not create a new organization, nor does it result in the dissolution of an already exist- ing organization The organizations participating in the affiliation determine whether any administrative or ogamzational changes are necessary in the affi- liating organization 14 Latrobe Steel Co, 244 NLRB 528 (1979), 630 F 2d 171 (3d Or 1980), enlarged on Bartlett-Colhns in finding an unfair labor practice where an employer had assumed an "adamant position" during its insist- ence on having a record made of negotiations Notably the facts in La- trobe Steel included a showing that as the situation between the parties had unfolded the union itself, on one occasion, was permitted to bring in and did use a tape recorder ostensibly to check on the accuracy of the professional reporters, whose presence was in dispute as the element on which the Board's unfair labor practice finding turned This counteract- ing step is Illustrative of the vanables that can be involved on the subject, and the enforcing court's observation that introduction of a formal record-making capability Into collective-bargaining negotiations may not be an unfair labor practice "in all instances" Id 630 F 2d at 178 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent contends that by having merged with the International Union of Electronic, Electrical, Salaried, Machine, and Furniture Workers, AFL-CIO, the Union is not now shown as being a distinct labor organization, nor should it have continued status as the certified repre- sentative of employees I reject this contention, believing instead that the essential viability of the Union has sur- vived the merger, and it exists with the same status as before, modified only as to terminology of identification Cf Colonial Manor 1977, 253 NLRB 1183 (1981), Hy- drotherm, Inc , 280 NLRB 162 (1986) CONCLUSIONS OF LAW 1 Anaheim Plastics, Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 1010 of the Furniture Workers Division of the International Union of Electronic, Electrical, Sala- ned, Machine, and Furniture Workers, AFL-CIO, for- merly United Industrial Workers of the United Furniture Workers of America, Local 1010, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By awarding preference in terms and conditions of employment by payment of a $10-per-day bonus only to its employees who did not engage in or abandoned the stnke, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act 4 By failing and refusing to reinstate stnking employ- ees upon unconditional application to return to work made on their behalf, Respondent has discriminated against employees to discourage union or other protected concerted activities, and by such conduct has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act REMEDY Having found the Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and take affirmative action de- signed to effectuate the policies of the Act including the posting of an appropriate notice 15 Having found that Respondent unlawfully failed and refused to reinstate Alicia Annan°, Celina Bahena, Gull- lermma Martin del Campo, Graciela Lucatero, Angel Menthols, Conrado Toledo Meza, Josefina Munoz, Celia Perez, Ana Ramirez, Rafael Ramirez, Rom Robledo, Angel Santana, Juana de la Torre, Maria E Torres, and Alicia Vargas to employment at times from and after 28 March, I shall recommend that Respondent be required to make them whole for any loss of earnings they may have suffered as a result of the discnnunation against them 16 Backpay shall be computed as set forth in F W 18 The notice to be posted shall be both in an English language version and a Spanish language version because of the large number of Spanish- speaking employees j e I expressly include persons entitled to remedial benefits, regardless of whether their names appeared on the Union's letter of 17 March It is plain from the facts that Respondent was amply Informed from its own records of which employees went on strike, and thus which ones were owed an offer of reinstatement under the Union's plain Intent On this Woolworth, 90 NLRB 289 (1950), with interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987) 17 On these findings of fact and conclusions of law and the entire record, I issue the following recommended18 ORDER The Respondent, Anaheim Plastics, Inc, Anaheim, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Awarding preference in terms and conditions of employment by the payment of a $10-per-day bonus only to its employees who do not engage in, or abandon a stnke (b) Discriminating against employees by failing and re- fusing to offer reinstatement to former strikers to dis- courage their union or other protected concerted activi- ties (c) In any like or related manner mterfenng with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its facility in Anaheim, California, copies of the attached notice marked "Appendix " 19 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by Respondent's authonzed representative, shall be posted by Respondent immediate- ly on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material (b) Make whole Alicia Arellano, Celina Bahena, Gull- lermma Martin del Campo, Grathela Lucatero, Angel Menthols, Conrado Toledo Meza, Josefina Munoz, Celia Perez, Ana Ramirez, Rafael Ramirez, Rosio Robledo, Angel Santana, Juana de la Torre, Maria E Torres, and Alicia Vargas for their loss of earnings suffered as a result of the discrimination against them (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- point Respondent relies on Birmingham Ornamental Iron Co, 251 NLRB 14 (1980), in arguing that the Union had assumed a duty of notifying its stnkers concerning steps to take in returning to work I find Birmingham Ornamental Iron distinguishable, noting that It involved particular "equi- ties" influencing the Board's decision, and thus reject this contention by Respondent 17 Under New Horizons, Interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp, 231 NLRB 651 (1977) 18 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" ANAHEIM PLASTICS 105 roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 20 " The General Counsel requests a visitatonal clause authonzing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision IT IS FURTHER ORDERED that the amended consolidat- ed complaint is dismissed insofar as it alleges violations of the Act not specifically found of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, I find It unnecessary to Include such a clause Accordingly, I deny the General Counsel's request See Cherokee Manse Terminal, 287 NLRB 1080 (1988)