Brown & Sharpe Manufacturing Co.

586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brown & Sharpe Manufacturing Company and Dis- trict Lodge 64, International Association Of Machinists & Aerospace Workers, AFL-CIO, and its Local Lodges 883, 1088 and 1142 and Local No. 119, International Federation of Pro- fessional & Technical Engineers, AFL-CIO. Cases 1-CA-19224, 1-CA-19690, 1-CA- 19958, 1-CA-20283, 1-CA-20291, 1-CA- 20304, 1-CA-20508, 1-CA-21560, and 1-CA- 19567 August 28, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On Apnl 5, 1989, Administrative Law Judge Benjamin Schlesinger issued the attached decision The General Counsel and the Charging Party filed exceptions and supporting briefs The Respondent filed a cross-exception and supporting argument and a brief in support of the decision of the admin- istrative law judge, in opposition to the exceptions of the General Counsel and the Charging Party, and in reply to the briefs in support of exceptions The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions, cross-exception, and briefs and has decided to affirm the judge's nil- mgs, findings, and conclusions as modified and to dismiss the complaint in its entirety 1 The judge found, and we agree for the reasons stated below, that certain allegations of bad-faith bargaining by the Respondent are barred by Sec- tion 10(b) of the Act The allegations at issue are that the Respondent engaged in surface bargaining by insisting, without valid economic considerations, on certain proposals as absolute, without which it could not reach any agreement As more fully set forth in section I of the judge's decision, the charges involving these allegations initially were dismissed by the Regional Director on the ground that the investigation showed that the Respondent's proposals were advanced because of lawful busi- ness considerations The General Counsel affirmed the Regional Director's dismissal on appeal Ap- proximately 2 years later, the General Counsel re- instated the charges in light of evidence discovered in the investigation of a new unfair labor practice charge concerning David Waterman, the Respond- ent's former industrial relations director The evidence consists of minutes and position papers of the Respondent's steering committee, dated from March to September 1981, concerning preparations for negotiations for a new contract in 299 NLRB No 89 September 1981 1 The General Counsel argues that these documents show that the Respondent's con- tract proposals were not advanced for lawful busi- ness reasons The General Counsel contends that under the rationale of Ducane Heating Corp ,2 the Respondent's failure in the initial investigation to disclose documents which contradict its assertion that its proposals were legitimate, as well as its in- tentional nuscharactenzation of the proposals as ab- solutes, amount to fraudulent concealment of oper- ative facts warranting the tolling of the 10(b) limi- tation period We find no ment in this argument Having re- viewed the evidence allegedly concealed, we find that it does not sufficiently support the charge so as to warrant extending the 10(b) limitation period The Board similarly rejected the General Counsel's attempt to reinstate a charge outside the 10(b) period in Duff-Norton Go, 275 NLRB 646 (1985) In that case, a charge alleging that the Respondent discharged employee Pnvette in violation of Sec- tion 8(a)(3) and (1) was dismissed Approximately 16 months later the General Counsel reinstated the charge because the Respondent's former supervi- sor, Tucker, gave an affidavit indicating that he had set Pnvette up for discharge by tampering with certain machines The Board, citing Ducane Heating Corp, supra, noted that a dismissed charge may be reinstated outside the 6-month limitation period of Section 10(b) if a respondent fraudulently conceals operative facts underlying the violation al- leged However, the Board concluded that there was nothing in the Duff-Norton case which war- ranted extending the limitations proviso Reviewing the evidence proffered by the General Counsel, the Board found that even assuming Supervisor Tucker tampered with the machines as alleged and that this, in part caused the production of defective parts, Tucker's action would have affected Pnvette only indirectly because he inspected parts but did not produce them Further, the Board found that Tucker's tampering would not have explained all of the defects or the delay in discovering defects that the Respondent had cited as reasons for dis- charging Pnvette In such circumstances, the Board found there was an insufficient nexus be- tween Tucker's asserted tampering and Pnvette's performance of his inspection duties so as to con- clude that the Respondent fraudulently concealed the operative facts pertaining to Pnvette's dis- charge In essence, the Board held that the evi- dence must sufficiently support the charge before it 1 All dates are in 1981 unless otherwise indicated 2 273 NLRB 1389 (1985), enfd mem 785 F 2d 304 (4th Or 1986) BROWN & SHARPE MFG CO 587 , can be used as a basis for extending the 10(b) period - We make the same holding here After reviewing the evidence the General Counsel seeks to intro- duce, we find that even viewing the evidence in a light most favorable to the General Counsel's posi- tion, it does not support a finding that the Re- spondent advanced proposals as genuine absolutes when it actually did not consider the proposals to be important to its operations The evidence, there- fore, does not warrant the conclusion that the Re- spondent concealed the operative facts pertaining to its bargaining intentions either by mischaracter- izmg its proposals as absolutes or by failing to dis- close the steering committee minutes and position papers The General Counsel's argument focuses on the Respondent's proposals concerning job preference3 and mandatory transfers which led to a stalemate in negotiations The General Counsel points to one document, dated June 1, entitled "Position Paper/Job Preference" and to another dated May 29, entitled "Position Paper Transfers" According to the steering committee minutes, these papers as well as five other position papers were presented to the committee at its June 1, 1981 meeting The paper on job preference describes the con- cept as having its roots in the incentive system where the equipment an employee operated signifi- cantly affected his earning ability The paper states that when the incentive system was dropped in 1967, employees began to exercise job preference in order to improve their working conditions, e g, get assigned to less demanding equipment in clean rooms The history section of the paper ends as fol- lows For the last three years the company and Union have been constantly battling over job preference with each party trying to erode the other party's position The Company has at- tempted to build favorable past practices which would negate the job preference past practice The Union has been in a challenge position, grieving whenever they find the Company not honoring job preference The Company is looking for a grievance to take forward to arbitration to destroy the concept of job preference while the Union is looking 'Job preference or machine seniority gives an employee the right to exercise semonty to obtain an assignment to a specific job or machine which could not be operated by another employee The employee as- signed to the machine can not be assigned to a different machine even temporanly, unless the employee's assigned machine remains idle during the transfer This exercise of seniority is called machine seniority in the production and maintenance unit and job preference in the office clericals wut The proposals and discussions in negotiations on this Issue for the two units were substantially the same for a grievance to arbitrate with which they can win job preference The paper goes on to state that a survey of manag- ers in the Machine Tool Division and the Industrial Products Division indicated that the managers "felt that job preference had minimum cost impact but was a general annoyance The absence of job pref- erence would make the managers' job easier" With regard to negotiating objectives, the paper concludes "The Company should not negotiate concermng job preference since failure at the nego- tiations table would severely weaken the compa- ny's case if we decided to arbitrate it" The paper ends with the following summary Job preference is an issue best addressed by the establishment of favorable past practice Shop management does not feel job preference significantly affects the cost of operating the shop This feeling is based on the knowledge of shop managers that an employee that exer- cises job preference and cannot perform the job they have transferred to can be disciplined and discharged The minutes of the June 1, 1981 meeting indicate that a final decision was not taken on whether job preference should be raised in negotiations Under the heading of job preference, the minutes state "Both Bill Masser and Howard Geyer said they might want to review this again even though it was recommended that it be dropped "4 The position paper on transfers begins with the following history Managers have been able to use lack of work, temporary and company request trans- fers with very few problems Some managers have used the company request transfer as a way to avoid notification of the union for a lack of work situation The union has not held us to our contractual obligations in regard to a five-day notice prior to layoff if the employee was to be transferred due to lack of work After reviewing the contract language on transfers, the paper ends with the following summary "It is the opinion of this Committee that we can effec- tively deal with the current contract language" The minutes of the June 1, 1981 meeting again indicate that a final decision was not taken on the issue of transfers Under the heading "Transfers," the minutes state "The position paper stated that * Masser was vice president and general manager of the Industrial Products Division Geyer was vice president in charge of the Machine Tool Division 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD managers could live with the language as it is, and, again, Bill Masser and Howard Geyer expressed concern that we still may want to change the lan- guage" Negotiations for the new contract began on Sep- tember 4 The minutes of the September 10 steering committee meeting contain another position paper on job preference It states there has been a signifi- cant increase in the Union's attempt to solidify job preference Under the heading "Cost Benefit," the paper states "Substantial psychological impact for management More effective utilization of employ- ees within labor grade resulting in a 3 percent to 5 percent productivity improvement (1 2 million sav- ings—labor plus fnnge benefits )" The paper pre- dicts that the Union's response will be "extremely emotional" and evaluates the risk of proposing the elimination of job preference as "High Poll for all work assignments within labor grade If the Com- pany does not prevail, job preference becomes a fact" The paper ends with the following recom- mended positions Only address the question if we intend to take a strike on the issue Eliminate "transfer" and add "permanent" Within an occupational code management will make all machine assignments with its dis- cretion Strike issue The September 10 minutes also contain a docu- ment entitled "Recommended First Proposal" This document identifies certain high-risk issues Con- cerning job preference, it states Job preference was the highest-risk item identified by the Company Negotiating Com- mittee If the Company proposes elimination of job preference and does not succeed, the con- cept of job preference will no longer be an issue of past practice, but, in fact, an operating condition in the plant, whereby employees would be able to select their job—i e, machine or permanent assignment, whenever an open- ing occurred on their shift within labor grade It is the Committee's assessment that if the Union takes a case of job preference to arbitra- tion, the company will lose the case If the Company is going to propose elimination of job preference, it is the committee's recom- mendation that the Company be prepared for a six-month stnke, plus a high economic settle- ment The Company Negotiating Committee makes the following recommendations on Job Preference a If the Company intends to stay in Rhode Island for an extended period, the elimination of job preference should be proposed, and the Company should be willing to take a six- month strike to achieve it with high econom- ics b If the Company proposes elimination of job preference and it is not achievable during these negotiations without a strike, and as a result of that the Company decides that it will move within a few years, the Company should not be willing to take a strike over job prefer- ence The September 10 minutes also include a posi- tion paper on "Company Request Transfers" This paper identifies involuntary company request trans- fers as a negotiating objective Under the heading "Cost Benefit," it states "Would have to work the jumor employee for temporary lack of work Utili- zation of skills Because most of skills are grouped there is a limited utility in mandatory transfers out- side seniority groups Flexibility Improve Produc- tivity" The paper states that the risk of proposing mandatory transfers is "high" and recommends four company positions Company Request transfers will be mandato- ry Company Request transfers for 30 working days per quarter for good business reason Company Request transfers of 30 working days per employee for the life of this agree- ment Mandatonly transfer a person for a specified period of time to another seniority group with the same occupational code The document setting forth the recommended first proposal also lists mandatory transfers as a high-risk issue and states Mandatory Transfers was identified as a high- nsk proposal The Company Committee feels that with the proper safeguards and a Union recommendation, mandatory transfers would be acceptable by the membership with a rea- sonable economic package The General Counsel contends that these docu- ments show that in June 1981, job preference and mandatory transfers were nomssues for the Re- spondent, that job preference in fact had been re- jected because of its minimum cost impact The General Counsel argues that the documents there- fore contradict the Respondent's assertions during bargaining that job preference and mandatory transfers were issues which for legitimate business reasons it considered absolute We find no merit in the General Counsel's posi- tion Even assuming the existence and authenticity BROWN & SHARPE MFG CO 589 of the steering committee position papers and min- utes as an expression of the Respondent's bargain- ing intentions, we find that these documents do not support a finding that job preference and mandato- ry transfers were nomssues for the Respondent With respect to job preference, the June 1 posi- tion paper does not describe it as an unimportant matter Instead, the paper stresses that the Re- spondent and the Union struggled over this issue for 3 years, with the Respondent attempting to build a practice which would negate the job prefer- ence past practice and the Union challenging each such attempt Nor does the paper indicate that the recommendation to drop the issue from negotia- tions was based on its minimum cost impact Rather, the paper states that job preference should not be negotiated because "failure at the negotia- tions table would severely weaken the Company's case if we decided to arbitrate it" Although the June 1 paper refers to the insignifi- cant cost effect of job preference, this is not cited as a reason to drop the issue from negotiations Rather, the paper reports that it is the opinion of shop managers that although job preference is a general annoyance which makes their jobs harder, it did not significantly affect operating costs The shop managers' feelings that the cost effect of job preference was insignificant was attributed to their knowledge that they could discipline and discharge an employee who did not perform the job he had gotten through job preference Higher level man- agement's assessment of cost is not mentioned in the paper Finally, the minutes of the June 1 steering com- mittee meeting indicate that contrary to the Gener- al Counsel's assertion, the issue was not rejected in June Rather, two higher level managers, Masser and Geyer, were recorded as stating they might want to review it again even though the position paper recommended that it be dropped A review of the September 5 position paper on job preference and the September 10 recommended final proposal does not show a shift in the Re- spondent's evaluation of the importance of the issue, but rather a shift in the strategy for dealing with it Both the June and September positions ex- press awareness of the danger of losing the issue in negotiations The June paper, however, recom- mends dropping job preference from negotiations, while the September documents recommend raising the issue but only if the Respondent intends to stay for an extended period in Rhode Island and is will- ing to take a 6-month strike with a high economic settlement The September documents also show a shift in the cost assessment of job preference We fail to see, however, how this shift indicates, as the Gen- eral Counsel urges, that the Respondent found an insignificant cost impact in June but inexplicably found a significant impact in September As noted above, the June position was based on shop manag- ers' feelings that the cost was insignificant because they would be able to discipline or discharge an employee who was not performing the job he got through job preference It was not presented as a view held by all sections of management Nor were the recommendations of the June paper accepted by the full steering committee In contrast, the Sep- tember paper is attributed to the full steering com- mittee, including higher levels of management, and asserts that the elimination of job preference would have a "substantial psychological impact for man= agement" and would result in a 3 to 5 percent pro- ductivity improvement We see nothing mherently contradictory between an opinion of lower level management that the cost is insignificant because of the ability to discipline and discharge employees, and a higher level management opinion that the cost is significant because of the psychological impact on management and the utilization of em- ployees within labor grade Finally, even assuming the position in the June 1 paper contradicts the September position, the Gen- eral Counsel's argument fails because the recom- mendations of the June 1 paper were not adopted at the June 1 meeting of the steering committee and thus cannot be viewed as an expression of the Re- spondent's position on job preference at that time Our review of the documents on mandatory transfers leads to the same conclusion The May 29 position paper on transfers states that managers have had very few problems with them It is silent on the question of cost impact As was the case with job preference, the recommendation of the paper to stay with the current contract language on transfers was not accepted by the full steering committee The minutes for the June 1 meeting state that Masser and Geyer expressed concern that the Company might want to change the language The documents indicate, therefore, that there was no determination in June that transfers were not an issue for negotiations The September position paper and recommended final proposal are attributed to the full steering committee The position paper states that mandato- ry transfers would result in utilization of skills, flexibility, and improved productivity The recom- mended final proposal acknowledges that mandato- ry transfers is a high-risk proposal but expresses the view that with proper safeguards and a umon rec- ommendation, the membership would accept it with a reasonable economic package We see no in- 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD herent contradiction between this position and the May 29 position which made no attempt to analyze cost factors and merely stated that the managers had few problems with transfers and could live with the current contract language Further, as was the case with job preference, we find that even assuming the position of the May 29 paper contradicted the September position, the General Counsel's case is not established because the recommendation of the May 29 paper was not adopted at the June 1 steering committee meeting and thus cannot be viewed as an expression of the Respondent's intentions concerning transfers at that time Accordingly, our review of the steering commit- tee position papers and minutes does not support a finding that the Respondent advanced proposals in negotiations as absolutes based on valid business considerations, when the Respondent had in fact determined that the proposed items were not im- portant and did not require change from the ex- pired contract Because the documents do not sup- port the allegation that the Respondent engaged in surface bargaining, the Respondent's failure to dis- close them, or its characterization of its proposals as legitimate absolutes, could not amount to a fraudulent concealment of the operative facts un- derlying the alleged violation of Section 8(a)(5) 5 For these reasons, we agree with the judge's con- clusion that the allegations of the complaint which are based on the unfair labor practice charges in Cases 1-CA-19224, 1-CA-19567, and 1-CA-19690 must be dismissed because the General Counsel has not established that the 10(b) limitations period should be extended 2 The judge further found, and we agree, that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to reveal to the Union the names of current employees who were strike replacements We disagree with his finding, howev- er, that the Respondent violated Section 8(a)(5) by withholding from the Union the names of strike re- placements who had been terminated With respect to the Union's request for the names of current employees, the judge noted testi- mony that there were two mass demonstrations in which people were injured and property was dam- aged, that a van exploded, and that the General Counsel issued a complaint alleging 28 separate in- cidents of conduct by the Union including threats of bodily harm, rock throwing, arson, detonating 6 In light of this conclusion, we find It unnecessary to rely on the judge's application of Dwane Heating Corp, supra Chairman Stephens would rely both on the analysis under Duff-Norton Ca, 275 NLRB 646 (1985), set out above and on the judge's analysis under Dwane Heating Corp, supra See his dissent in Kanaku Co, 293 NLRB 435, 437-441 (1989) explosive devices, and assault 6 The judge also noted that although most of the violence took place at or near the Respondent's facilities, some employees were harassed at their homes and some were assaulted at places where they met to car- pool The judge finally noted that at the hearing the Union neither denied that these acts of violence occurred nor denied that it was responsible for them The judge found that in this setting, the Re- spondent had a reasonable basis for believing that the Union was fostering the violence He conclud- ed that there was, therefore, a clear and present danger that the Union would continue the violence and there was a substantial reason for the Respond- ent to withhold the names of current employees 7 We agree with this analysis Regarding the refusal to give the names of termi- nated strike replacements, however, the judge found that because there was an attempt to disrupt the Respondent's busmess by preventmg the Re- spondent's employees from reportmg to work, there would be little purpose for the Union to commit violence against employees who were no longer working for the Respondent and not report- ing to work The judge concluded there was, therefore, no clear and present danger that the Union would take action against terminated em- ployees and that the Respondent had no justifica- tion for withholding their names The Respondent argues, on cross-exception, that the judge's conclusion concerning terminated em- ployees is inconsistent with his conclusion concern- ing current employees The Respondent stresses that there was uncontradicted evidence of massive violence at the plant and that employees were being harassed and assaulted away from the plant The Respondent argues that in these circumstances there is no basis for the judge's finding that no clear and present danger existed that the Union would take action against replacements and line crossers even after termination of employment We find merit in this argument The Union did not deny at the hearing that widespread violence occurred at the plant or that strike replacements or line crossers were harassed and assaulted away from the plant Nor did it deny responsibility for these acts With such evidence of violence directed against strike replacements, oc- curring not only at the picket line but at their homes and other places away from the plant, we 6 The judge found that although the Informal settlement of the case in- volving these allegations did not constitute a confession of liability, there was nevertheless enough proof to convince the Regional Director to Issue a complaint 7 Burkart Foam, 283 NLRB 351, 356 (1987), enfd 848 F 2d 825 (7th Cir 1988), and Safehte Glass, 283 NLRB 929, 948-949 fn 26 (1987) BROWN & SHARPE MFG CO 591 find that there is a clear and present danger that violent action might be taken against those who re- placed strikers regardless of whether they contin- ued to work or had been terminated We, there- fore, find that the Respondent had a substantial reason for withholding the names of strike replace- ments who had been terminated and did not violate Section 8(a)(5) of the Act by refusing to reveal those names to the Union ORDER The complaint is dismissed Joseph F Griffin, Esq , for the General Counsel William R Powers, Esq and Thomas C Keeney, Esq (Powers, Karsch Kinder, Inc ), of Providence, Rhode Island, for the Respondent Raul L Lovett, Esq and Marc Gursky, Esq (Lovett, Mor- gera, Schefnn & Gallogly), of Providence, Rhode Island, for Charging Party Machinists Richard A Skolnik, Esq , of Providence, Rhode Island, for Charging Party Engineers DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE UNFAIR LABOR PRACTICE CHARGES BENJAMIN SCHLESINGER, Administrative Law Judge On November 5, 1981, Charging Party District Lodge 64, International Association of Machinists & Aerospace Workers, AFL-CIO (Union) filed an unfair labor prac- tices charge m Case 1-CA-19224 allegmg that Respond- ent Brown & Sharpe Manufacturing Company violated Section 8(a)(1) and (5) of the National Labor Relations Act, 29 U S C § 151 et seq , by refusing to bargain in good faith with the Union The charge stated that "[O]n or about September 4, 1981 and continuing since, [Re- spondent] engaged in an anti-union animus campaign by regressive bargaining, by refusing to discuss wages and major economic benefits unless and until other proposals calling for reductions in previously enjoyed seniority benefits and union representation rights had been re- solved [and Respondent] bargained in bad faith de- signed to preclude acceptance of a collective bargaining agreement between the parties, refused to negotiate on [Respondent's] `absolutes,' circumvented the Union's elected bargaining agents, [and] dealt directly with the employees, for the purposes of undermining the Union's majority status with its membership" On December 28, 1981, the Acting Regional Director of Region 1 refused to issue a complaint His dismissal letter stated, in part, as follows [W]ith respect to the allegation that [Respondent] engaged in regressive bargaining, I conclude from the investigation that there is no evidence that [Re- spondent] made proposals for revisions in the job transfers and reassignments for the purpose of frus- trating or impeding the collective bargaining proc- ess Rather, it appears from the investigation that al- though these proposals may have been unpalatable to the Union, they were nevertheless advanced by [Respondent] only because of the lawful business consideration of attempting to increase production and achieve other lawful ends With respect to the allegation that [Respondent] re- fused to discuss its own proposals, or "absolutes," the evidence revealed in the course of the investiga- tion does not support the allegation Rather, it ap- pears from the investigation that those items were freely and frequently discussed by the Union and [Respondent] at various times in the negotiations The Union appealed the dismissal to the Office of Ap- peals, which on January 29, 1982, denied the appeal for the reasons set forth by the Acting Regional Director On October 18, 1981, the employees represented by the Union went on strike, and employees represented by Charging Party Local No 119, International Federation of Professional 8c Technical Engineers, AFL-CIO (Engi- neers) honored the Union's picket line On February 17, 1982, the Engineers filed an unfair labor practice charge m Case 1-CA-19567 against Respondent alleging that on or about February 15, 1982, Respondent locked out the Engineers' members who reported to work, sought to re- quire such members to apply unconditionally for rein- statement to employment on an individual basis in viola- tion of the parties' collective rights and collective-bar- gaining agreement, and failed to negotiate in good faith On April 8, 1982, the Regional Director dismissed this charge, finding that Respondent could require the em- ployees who honored the picket line to execute written applications for reinstatement He also found that Re- spondent could have permanently replaced them Implic- it in that conclusion was a finding tht the Union's strike was an economic stnke and that the Engineers' members were striking in sympathy with economic strikers Thus, Respondent did not lock them out or unlawfully deny them reinstatement because it had replaced many of them and there was no work available for the remainder of them The Engineers filed no appeal from the Region- al Director's refusal to issue a complaint The Union filed a new unfair labor practice charge on June 14, 1982, in Case 1-CA-19958 On July 29, 1982, the Regional Director refused to issue a complaint re- garding the allegation that Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally implementing in April and May 1982 various changes in working condi- tions He found that negotiations for a renewal contract were at impasse when Respondent announced and imple- mented these changes, which were reasonably encom- passed within its preimpasse proposals That was based in part upon the findings in Cases 1-CA-19224 and 1-CA- 19690 that Respondent did not engage in bad-faith bar- gaining The latter case involved another charge filed by the Union on March 18, 1982, alleging that Respondent violated Section 8(a)(1) and (5) of the Act by engaging in dilatory tactics by refusing to meet and postponing meetings, by engaging in regressive bargaining by repeat- edly escalating its contractual demands, withdrawing and then resubmitting proposals, and advising the Union after 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it had signified agreement to specific proposals that Re- spondent was reconsidering its demands, by proposing that employees hired since the stnke be given a different seniority listing from its regular employees, by placing a deadline on its latest offer, and by threatening to refuse to meet with the Union The Acting Regional Director dismissed this charge on April 28, the Union appealed, and the Office of Appeals denied the appeal on June 16, 1982 The Regional Director also dismissed the allegation in Case 1-CA-19958 that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to negotiate the terms of the entire agreement and insisting on discussing only the proposed subcontracting of work by Respond- ent Respondent settled the remaining allegations of the charge by informally agreeing that, in the absence of a bona fide impasse, it would not make unilateral changes of wages, hours, or working conditions provided for in its expired collective-bargaining agreements with the Union and agreed to rescind and give no further effect to certain changes it made in May 1982 and thereafter The Union appealed from that settlement and the Regional Director's dismissal of the remaining allegations of the charge All these proceedings were reviewed after the Union filed a new unfair labor practice charge on September 29, 1982, in Case 1-CA-20283 There, the Union charged that Respondent had continued to refuse to bargain in good faith, as follows Since on or about July 30, 1982 the Union became aware that prior to the commencement of negotia- tions Mr David Waterman, former Industrial Rela- tions Director for [Respondent], was terminated by [Respondent] for refusing to carry out a bargaining position designed to preclude reaching agreement with the Union in collective bargaining, by means inconsistent with and in violation of the National Labor Relations Act Almost a year later, on September 27, 1983, the Office of Appeals sustained in part and denied in part the Union's appeals, as follow Based on newly-discovered evidence produced during the supplemental investigation ordered m Case No 1-CA-20283 on February 8, 1983, it was concluded that the dismissals of Cases Nos 1-CA- 19224 and 1-CA 19690 should be reconsidered, sua sponte Winer Motors, Inc , 265 NLRB No 185, Cali- fornia Pacific Signs, Inc , 233 NLRB 450 After a full consideration of all of the evidence presented in Cases Nos 1-CA-19224, 19690, 19958, 20283, and 20508, it was concluded that [Respondent's] con- duct during the collective bargaining negotiations commencing in September 1981 raised Section 8(a)(1) and (5) issues warranting Board consider- ation based on record testimony developed at a hearing before an Administrative Law Judge Inas- much as there is reasonable cause to believe that the strike which commenced on October 18, 1981 was an unfair labor practice strike, ab num, it was deemed unnecessary to determine whether the unfair labor practices alleged in Case No 1-CA- 19958 converted the stnke at that time In view of our determination that the stnke was an unfair labor practice stnke, the settlement in Case No 1-CA- 19958 was deemed inadequate and the Union's appeal thereof is sustained The broad complaint in this proceeding followed on December 7, 1983 1 II THE PARTIES, JURISDICTION Respondent's answer admits, and I find, that it is and has been at all times material herein a Delaware corpora- tion with it principal office and place of business at Pre- cision Park, Town of North Kmgstown, County of Washington, and State of Rhode Island (North King- stown facility), where it engages, through as two divi- sions-machme tools and industrial products-m the manufacture, sale, and distribution of precision machine tools and related products Respondent also, until De- cember 22, 1982, maintained another division at Grey- stone, in the Town of North Providence, County of Providence, and State of Rhode Island (Greystone facili- ty) In its operations, Respondent has caused large quan- tities of metals, steel, tools, and instruments unsed by it in the manufacture of precision machine tools to be pur- chased and transported in interstate commerce from and through various States of the United States other than Rhode Island and has caused substantial quantities of precision machine tools to be sold and transported from its facilities in interstate commerce During 1981 and 1982 Respondent sold and shipped goods valued in excess of $50,00 directly to points outside Rhode Island I conclude, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Since in or about 1947, Local Lodges 1088 and 1142 of the Union have been and are, by virtue of Section 9(a) of Act, the certified exclusive collective-bargaining repre- sentative of the following described unit for collective bargaining about rates of pay, wages, hours of employ- ment, and other conditions of employment, which unit is appropriate for the purposes of collective bargaining withm the meaning of Section 9(b) of the Act All production and maintenance employees of Re- spondent employed at its North Kingstown and Greystone facilities, exclusive of clerical employees, employees represented by the Engineers, guards and all supervisors as defined in the Act I The other relevant docket entries are as follows The unfair labor practice charge in Case 1-CA-20291 was filed on September 30, 1982, the charge in Case 1-CA 20291 was filed an September 30, 1982, the charge in Case I-CA-20304 was filed by Local Lodges 1142, 1088, and 883 of the Union on October 4, 1982, and the charges in Cases 1-CA- 20508 and 1-CA-21560 were filed by the Union on December 8, 1982, and November 10, 1983, respectively The complaint was amended by the Acting Regional Director for Region 1 on December 29, 1983, and was later amended at the hearing, which commenced on January 30, 1984, was held in Providence, Rhode Island, and various dates in 1984- 1985 and 1987-1988, and concluded on January 19, 1988 BROWN & SHARPE MFG CO 593 Since in or about 1953, Local Lodge 833 of the Union has been and is, by virtue of Section 9(a) of the Act, the certified exclusive collective-bargaining representative of the following described unit for collective bargaining about rates of pay, wages, hours of employment, and other conditions of employment, which unit is appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All clerical employees of Respondent employed at its North Kingstown and Greystone facilities, exclu- sive of production and maintenance employees, em- ployees represented by the Engineers, guards and all supervisors as defined in section 2(11) of the Act Respondent has recognized the respective Local Lodges in successive and separate collective-bargaining agreements, one series for its production and mainte- nance unit, another for its clerical employees, the most recent agreements being effective by their terms from October 18, 1979, to October 18, 1981, and all agree- ments having been negotiated by the Umon on behalf of and as agent for its Local Lodges I conclude, as Re- spondent admits, that the Union, its Local Lodges 883, 1088, and 1142, and the Engineers are labor organiza- tions within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Preliminary Matters, Section 10(6) On July 29, 1981, the Umon on behalf of its Local Lodges requested bargaining for new agreements, and bargaining began on September 4, 1981, and continued until October 18, 1983 From the content of the unfair labor practice charges quoted above, one need not divine that bargaining was very difficult However, before even arnvmg at the point of possibly boring the reader with who said what at each of the bargaining sessions that are involved in this proceeding, I must answer the General Counsel's and the Union's briefs which attack Respond- ent's bargaining strategies from their inception At the opening of the hearing, Respondent moved to dismiss numerous paragraphs of the consolidated com- plaint based on Section 10(b) of the Act, which provides in relevant part [N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made Respondent argued that then General Counsel William Lubbers had no authority 2 years later to reinstate the charges, because the early unfair labor practice charges had been dismissed, no appeal had been taken by the En- gineers, and the dismissals of .the Union's charges had been appealed to and denied by the Office of Appeals However, I found that he did have authority California Pacific Signs, 233 NLRB 450 (1977), upon which he relied, rejected a respondent's contention that Section 10(b) barred the reinstatement of a dismissed charge based on newly discovered evidence The Board stated, at 451 Section 10(b) of the Act provides that no com- plaint shall issue based on any unfair labor practice occurring more than 6 months prior to the filing of a charge with the Board This section, however, re- lates only to the actual filing of charges and, once a charge has been timely filed, the control over, and disposition of, that charge is vested exclusively with the General Counsel pursuant to Section 3(d) of the Act The General Counsel thus has virtually unlim- ited discretion to proceed on such timely filed charges as he deems fit 4 and, in the absence of a showing of abuse of the discretion, the Board will not interfere with General Counsel's exercise there- of 4 See Silver Bakery Inc of Newton, 150 NLRB 421 (1964) Winer Motors, 265 NLRB 1457 (1982), which expressly overruled Silver Bakery, also appeared to support the General Counsel's authority There, the Board held that the Regional Director could not revoke her earlier ap- proval of the withdrawal of a timely filed charge after the 10(b) 6-month period had expired, but stated, at 1457-1459 [W]e are guided by the Board's longstanding recog- nition of the proviso in Section 10(b) as being a 6- month statute of limitations Where such a clear limitations period has been created by Congress, we find that the Board exceeds its authority to allow the General Counsel to ignore such a limitations period on equitable grounds In reaching this con- clusion, we agree with the First Circuit's assessment when it denied enforcement of our Order in Silver Bakery [351 F 2d 37 (1965)] that reinstatement of charges beyond the 10(b) period based on equitable considerations was created out of whole cloth and that From the standpomt of respondents, for whom Section 10(b) was enacted, we can think of no good reason why the mere filing of a charge which is withdrawn with the consent of the Board, so that no proceedmgs are pending, should leave in the Board a roving discretion to determine that so-called equities warrant the rein- stitution of the proceedings without limit of time The fact that the Board may feel that its discre- tion is benignly exercised cannot answer the clear purpose of a statute of limitations [351 F 2d at 39] [W]here a respondent fraudulently conceals from a charging party the operative facts underlying a vio- lation of the Act, the limitations period does not begin to run until the charging party knows or should have known of such operative facts 12 Such a rule, however, clearly had no application to the case before us where the alleged discnmmatees were not ignorant of the alleged violation within 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the limitations period Further, we take issue with our dissenting colleagues' position that our decision here unduly rewards respondents for deceiving the General Counsel concerning the motive for or nature of its misconduct It is a rare case where a respondent agreed with a charging party's assess- ment that respondent engaged in conduct violative of the Act Rather, in most cases, respondent denies the misconduct alleged or proffers an explanation, and the General Counsel must decide if the evi- dence is sufficient to sustain the charging party's position If so, the General Counsel issues a com- plaint, if not, he dismisses the charge In other words, the denial of the misconduct by the respond- ent should not be and is not dispositive of the charge 12 Local 825. International Union of Operating Engineers AFL- CIO (Building Contractors Association of New Jersey), 228 NLRB 276 (1977), cited in the dissent, is a case which turned on the Board's interpretation of the facts, the majority finding that the charging party withdrew his charge in reliance on respondent's false statements concerning its luring hall rules, and the dissent finding that there was no fraud Involved and thus no reason to toll the limitations period This case clearly has no application or rel- evance to the situation here In Local 825, respondent allegedly gave a false explanation to the charging party as to the reason for his nonreferral which induced him to withdraw his charge Here, the Board investigated the charge, determined that it was lacking in merit, and solicited a withdrawal That the Respondent did not confess to unfair labor practices during the original investigation but, rather, denied the allegations or profferred an economic de- fense, does not constitute the type of "fraud" warranting reinstitu- tion of a charge in spite of the 6-month limitation of Sec 10(b) NLRB v Don Burgess Construction Corporation. d/b/a Burgess Construction, Builders and Donald Burgess and Verlon Hendrix. d/b/a V & B, 569 F 2d 378 (9th CV 1979), enfg 227 NLRB 765 (1977), Pullman Building Company, 251 NLRB 1048 (1980), and Plumbers and Steamfitters Local No 4a United Association of Jour- neymen and Apprentices of Plumbers and Pipelining Industry of the United States and Canada, AFL-CIO (Mechanical Contractors Asso- ciation of Washington), 242 NLRB 1157 (1979), cited by our col- leagues, are similarly distinguishable In Don Burgess, the charging party union was not aware that Respondent was even employing carpenters, let alone nonunion ones In Pullman, the Charging Party union was unaware that respondent was operating a non- union jobsite In Plumbers and Steamjitters Local No 40, the charg- ing party was unaware that his name had been removed from a hiring hall list and the Administrative Law judge noted that, in such cases, "the six month limitation period does not begin to run until the unlawful activity has become known to the charging party NLRB v Allied Products Corporation Richard Brothers Division, 548 F 2d 644, 650 (6th Cu. 1977) " 242 NLRB at 1161 [Emphasis supplied ] Thus, in all these cases, the 10(b) period was tolled because the charging party did not have reason to be- lieve that an unfair labor practice had been committed and, there- fore, had not filed a charge Our colleagues appear to mistakenly equate these situations with those in which, as here, the General Counsel has belatedly determined that a complaint should Issue on an already-withdrawn charge Nor does a denial of allegations previously made constitute fraudulent concealment See Dayco Corporation v Firestone Tire & Rubber Co, 386 F Supp 546, 549 (DC Ohio 1974), affd sub nom Dayco Corporation v Goodyear Tire & Rubber Company, 523 F 2d 389 (6th Ce. 1975) Yet as pointed out by the First Circuit in NLRB v Silver Bakery of Newton, 351 F 2d at 39, our colleagues have "created out of whole cloth" an ill-defined standard that would permit the revival of long-deceased charges whenever alle- gations of equitable considerations are raised Because the Union's and the Engineers' charges were timely filed and had not been withdrawn, and because the Waterman charge allegedly contained newly discov- ered evidence, I denied Respondent's 10(b) motion There was a second part of its motion to dismiss those allegations on the equitable ground that the General Counsel's earlier dismissals had led Respondent to assume that the strike was economic As a result, Re- spondent claimed that it then hired permanent replace- ments for its economic strikers Now, Respondent con- tended, with the change of the General Counsel's posi- tion 2 years later, Respondent might be liable for a most substantial liability to both the permanent replacements and the stnkers if I found that the strike was an unfair labor practice strike I reserved ruling on this part of Re- spondent's motion Furthermore, after review of the par- ties' briefs, I withdrew my prior denial of Respondent's 10(b) motion Instead, I reserved decision on it until I had heard the entire case, so that I could assess whether the General Counsel had, in the words of California Pa- cific Signs, abused his discretion by reinstating the previ- ously dismissed charges Respondent filed a special appeal from my ruling, and the Board stayed the hearing in this proceeding Almost a year later, the Board, acting on mistaken assumption that I had demed Respondent's motion, reversed my de- cision and remanded the same to me with instructions to reconsider it in light of its then 2-week-old decision in Ducane Heating Corp, 273 NLRB 1389 (1985), enfd mem 785 F 2d 304 (4th Or 1986), which severely limit- ed Cahfornia Pacific Signs and much of the rational of Winer Motors This hearing reconvened to receive testi- mony solely on the issues raised by Ducane Heating Ducane Heating involved the revocation of a prior dis- missal of a charge based on evidence newly discovered after the 10(b) period had expired The Board found no substantial distinction between a withdrawn unfair labor practice charge, as in Winer Motors, and one that had been dismissed, and refused to permit the reinstatement of any charge "outside the 6-month limitations period of Section 10(b) absent special circumstances in which a re- spondent fraudulently conceals the operative facts under- lying the alleged violation Where there is a fraudulent concealment, the limitations period begins to run when the charging party knows or should have known of the concealed facts" 273 NLRB at 1390 I now restate and reaffirm the Order I issued 1 The earlier dismissal of portions of the complaint In preparation for the collective-bargaining negotia- tions in 1981, Respondent formed a steering committee which examined various provisions of the then subsisting collective-bargaining agreements, assessed their impor- tance to the parties, decided whether Respondent should propose changes, and predicted what would be the Union's reaction to those changes Subcommittees pre- pared position papers and the steering committee held meetings and kept minutes Central to the complaint's al- legation of surface bargaining was that, among other things, Respondent insisted that certain "absolutes"— proposals which dealt with the issues of job preference and machine seniority and mandatory transfers of em- ployees—had to be contained in any new agreement BROWN & SHARPE MFG CO 595 It was only after the Union filed the Waterman charge (Case 1-CA-20283) and Waterman complied with an in- vestigtory subpoena, that the General Counsel developed a new theory Respondent's management personnel had examined and analyzed these proposals in preparation for collective bargaining and initially deemed them to be in- significant to Respondent's operation of its business However, they also opined that the Union would find the proposals so touchy that, if Respondent failed to withdraw them, the Union would strike, a result which, both the General Counsel and the Union contend, Re- spondent desired Thus, Respondent deviously induced the Umon to strike over contractual provisions which were meaningless to Respondent but were of greatest im- portance to the Umon—all to rid itself of the Union 2 The alleged proof, the "smoking gun," consisted of the steering committee's minutes and position papers These were, m the words of the General Counsel's letter, the "newly discovered evidence" If that characterization was correct, Ducane Heating dictated that I grant Respondent's 10(b) motion, because newly discovered evidence was no longer legally suffi- cient to justify reconsideration of closed proceedings and dismissed charges The General Counsel and the Union, therefore, had to make an argument different from the one relied upon by General Counsel Lubbers Their ar- gument, tailored to Ducane Heating, was that Respond- ent fraudulently concealed the existence of the docu- ments during the course of the Region's mvestigation of the early unfair labor practice charges I held that a re- spondent, including Respondent herein, has no obligation to cooperate with the General Counsel in the investiga- tion of an unfair labor practice charge It may supply no information whatsoever, if it so desires It may merely state its position, without providing sworn statements or witnesses who will be mterrogated under oath, or it may choose to cooperate and provide requested witnesses to answer all questions But, as the Board noted in Winer Motors, mvanably a respondent will deny the commission of any unfair labor practice, and that alone does not con- stitute "fraudulent concealment" In this proceedmg, Respondent produced witnesses who sought to convmce and persuade the Region's field attorney that it did nothing wrong and, more specifical- ly, that it bargained in good faith It provided, as re- quested, bargaining notes, correspondence, and the pro- posals and counterproposals It described what occurred at the negotiations and its reasons for taking the positions that it did When asked what the term "absolutes" meant, Respondent answered and related what it applied to and why it was applied Although it made no mention of any position papers, the Union had made the field at- torney aware of the existence of the steering committee by the Union Because the "absolutes" constituted the core of the dispute, I could not excuse his failure to ask Respondent for all documents which related to the "ab- solutes" or to the steering committee If Respondent had 2 Although not determinative of the motion or this proceeding, it is fair to note that Respondent counters this argument by contending that its =nal position was rejected after further study and review and that It truly and in good faith believed that the "absolutes" were of utmost un- portance to its continued, successful operations answered that there were none, its response may well have constituted a fraudulent concealment Kanalas Go, 293 NLRB 435 (1989) But there was no demand, and there was no duty imposed upon Respondent to produce position papers or the steering committee's minutes or anything else, unless the field attorney made that demand Fraudulent concealment involves a duty to reveal an operative fact In his brief opposing Respondent's motion, counsel for the General Counsel cited Black's Law Dictionary, 5th edition, West Publishmg Co, to define the term as "The hiding or suppression of a mate- rial fact or circumstance which the party is legally or morally bound to disclose The test of whether fail- ure to disclose material facts constitutes fraud is the ex- istence of a duty, legal or equitable, arising from the rela- tion of the parties, failure to disclose a material fact with intent to mislead or defraud under such circumstances being equivalent to actual 'fraudulent concealment Counsel for the General Counsel and the Union cited many decisions supporting their view that somehow Re- spondent had a duty to reveal the existence of the nun- utes and position papers I found none of them helpful Rather, there has been no showing whatsoever that Re- spondent had a duty to reveal anything A concealment, if any, must be fraudulent There was no proof that Respondent committed any fraud There was no misstatement because the important questions were never asked and the pertinent information was never demanded All that was present was Respondent's failure to tell the field attorney about minutes and papers which might have contradicted the bona fides of its posi- tion that it truly desired the "absolutes," rather than pro- posed them solely as a means to create an impasse and cause a strike However, as the Board said in Winer Motors, it is a rare case where a respondent agrees that it has violated the Act and it is typical that a respondent denies a violation and proffers an explanation for its con- duct If this were an 8(a)(3) discharge case, the General Counsel would have the Board authorize reinstatement of a charge anytime she later finds some new or addi- tional evidence that an employer was motivated by the employee's union activities There is no doubt that such evidence is newly discovered, but Ducane Heating no longer permits that to justify the reinstatement of a charge There must be a fraudulent concealment, and that, I found, was lacking in this proceeding Accordingly, I dismissed the allegations of the com- plaint which were based upon the unfair labor practice charge filed and later dismissed in Cases 1-CA-19224, 1- CA19567, and 1-CA-19690 One dismissed allegation was that the strike was an unfair labor practice strike ab initio The Union's allegation in Case 1-CA-19958 that the strike was converted to an unfair labor practice stnke had not been considered Therefore, I gave the General Counsel the right to move to amend the complaint to en- compass allegations arising out of the charges which were not subject to Section 10(b) of the Act I also gave the parties the right to move for reconsideration of the scope of my order Only Respondent did so I denied Respondent's motion, but I restated my intention to con- 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sider the remaining allegations of the complaint only to the extent that they occurred within 6 months of the filing of any surviving charge I specifically noted that there was nothing that prohibited the parties from intro- ducing the newly discovered evidence, as well as other evidence, as background to the charges which remained in the complaint Rikal, Inc v NLRB, 721 F 2d 402, 405 (1st Cu 1983) The General Counsel, the Union, and the Engineers requested the Board to grant special permis- sion to appeal from my order The Board denied permis- sion 2 The scope of this decision Almost the entire brief of the Union is premised on its request that I decide this proceeding as if I never grant- ed Respondent's motion The General Counsel's brief contends that Respondent engaged in surface bargaining from the commencement of negotiations and that the Union struck to protest that unfair labor practice 3 Ex- plicit in the Union's brief and implicit in the General Counsel's is a request that I disregard my Ducane Heat- ing order I decline to do so To rule otherwise not only would disregard what I have held to be Board law but also would undermine the Board's refusal to permit the parties to appeal 4 The Board knew, at the time I reserved judgment on Respondent's 10(b) motion, that it had Ducane Heating under consideration In what all must agree was an un- usual action, the Board stayed the hearing in this pro- ceeding in the middle of a tnal day The Board vacated the stay when it reversed my order, which the Board be- lieved denied Respondent's 10(b) motion, and the Board directed that I reconsider the motion based on its then recent Ducane Heating decision Thus, the Board must have thought that the resolution of the 10(b) issue was important enough not only to interrupt the hearing but also to redirect the focus of the hearing to at least a par- tial disposition of the proper scope of the complaint 5 Indeed, when I dismissed a major portion of the com- plaint, and the parties requested special permission to appeal, the Board did not hold that I erred It assuredly was aware that I did not intend to find violations on any allegation that was time-barred, and it did not direct me to consider the allegations which I had dismissed In these circumstances, I will neither reverse myself nor consider issues which are no longer before me Thus, the complaint does not allege that the Union's strike was an unfair labor practice strike from its incep- tion It alleges only that the strike was prolonged by the 3 This is utterly inconsistent with her contention that, because of my Ducane Heating ruling and the Board's denial of her request for special permission to appeal, she would not address the allegation that the Union's strike was an unfair labor practice strike from its inception The Board's Order permits the parties to renew their discontent with my Ducane Heating order by filing exceptions to this decision, so the Board has by no means left the General Counsel and the Union without a remedy 5 Respondent's reply brief to the Board on It original request for spe- cial permission to appeal to the Board made that point "Respondent must endure weeks of what may well be unnecessary hearing before the Administrative Law Judge, must affirmatively defend against time barred charges, and will continue to be exposed to contingent liability of awe- some proportions" unfair labor practices which remain in the complaint Furthermore, because the strike started well outside the 10(b) penod, Board law does not permit me to find that the strike was an unfair labor practice strike Greenville Cotton Oil Go, 92 NLRB 1033 (1951), affd sub nom American Federation of Grain Millers v NLRB, 197 F 2d 451 (5th Cif 1952) Therefore, I must find that the em- ployees' strike against Respondent was an economic strike If the strike was prolonged by Respondent's com- mission of unfair labor practices, the strike, as alleged in the remaining portion of the complaint, would then be converted into an unfair labor practice strike My mina' point of reference is about February 28, 1982, because that is 6 months before the filing of the first unfair labor practice charge which survived Re- spondent's 10(b) attack and is a convenient date to begin to detail the parties' negotiations However, because the complaint alleges not only surface bargammg but also unilateral changes, it is still necessary to summarize the earlier negotiations to understand that the parties were not in agreement on February 28, 1982, what areas were in dispute, how the parties perceived of the possibility of reconciling their positions, how the parties had treated their proposals and how they had revised them or re- mained adamant, and how all these facts affected the right of Respondent to make the unilateral changes in terms and conditions of employment and engage in other conduct that, the General Counsel contends, caused the strike to be converted into an unfair labor practice strike B The Early Negotiations, the Absolutes, the Strike, and the Unresolved Issues The negotiations between the Union and Respondent began on September 4, 1981, when the Union proposed increases to practically every provision of the collective- bargaining ageement, 6 what may be charitably character- ized as a "soup to nuts" wish list for higher wages,' double time, triple time, more holidays, 8 and sick days, improved vacation and other benefits, better medical, dental, and life insurance, better pensions, 9 severance benefits, eased eligibility for benefits, increased shift dif- ferentials, simplification of the arbitration procedure, ad- ditional union stewards, and the like Perhaps historians of the labor movement in the United States will look upon the Union's proposals as the norm for the first full year of the new Reagan administration Workers had become accustomed to demanding more and more bene- fits and higher and higher wages—and generally getting 'Although two agreements are involved, one for the production and maintenance unit and the other for the office clerical unit, I will refer to both as one agreement because there is no useful purpose for differentiat- ing between them Furthermore, I will not differentiate between the ne- gotiations for the two units in September and early October, which were held separately, because the nature of the proposals and the discussions at the separate negotiations were substantially the same 7 The Union proposed a 13-percent wage Increase in each of the 2 years of its proposed agreement, together with a cost-of-h ying clause ° This, at least, appears to be the effect of the Union's demand that a holiday which falls on Saturday would be celebrated on the preceding Friday 9 The pension plan provided a benefit of 59 per month per year of service The Union sought an Increase to $11 in the first year of the agreement and $12 in the second BROWN & SHARPE MFG CO 597 much of what they wanted—but the new Republican ad- ministration, starting with its response to the air traffic controllers' strike, evoked some new thinking by indus- try, and these negotiations, although not necessarily the harbinger of a tougher attitude which was to prevail during the next 7 years, if not more, represented some- thing profoundly different Management, too, had its wishlist of takeaways, a word that may not have been as familiar in 1981 as it is today As negotiations proceeded, it should have become evident that Respondent's list had not been proposed, as often happens, solely as a bargaining device to persuade the Union to reduce or drop some of its demands This time, Respondent made some of its proposals with the expressed intention of not withdrawing them " On Sep- tember 18, Richard Jocelyn, Respondent's principal ne- gotiator, prefaced his presentation of proposals by noting the less than vigorous state of Respondent's business and certain of its product lines, analyzing the wages and workers' productivity during the expiring agreement, and stating that it was his objective to reduce inefficien- cies and increase flexibility to permit Respondent to meet its competition and face the next 10 years He threatened that these negotiations were the most serious since 1967, when Respondent successfully negotiated the elimination of the incentive system, but he added that Respondent did not intend to offer a small raise—wages were not going to be an issue Among his written proposals were Respondent's right to establish working schedules with- out any limitation, to establish and change starting times of employees, and to require junior qualified employees to work on holidays and during Respondent's annual va- cation and Christmas shutdown 11 Respondent wanted the ability, if there were a layoff, to offer an employee other work and did not want to be required, as it then was, to give 5 days' notice It wanted to be able to accept the offer of a senior employee to be laid off before a junior employee, without having to seek the consent of the Union It wanted to eliminate the require- ment that it had to conduct timestudies whenever an em- ployee claimed that the work standards were inaccurate and the Umon's shop steward agreed Jocelyn had two other proposals, not yet written These became the major obstacles to an agreement The first was that Respondent could require employees to accept temporary transfers, and they need not consent to the transfers, as in the past The second was the abolition of machine seniority, job preference, 12 and permanent job assignment Although these terms had a different sig- nificance years before, when Respondent maintained an '° I recognize that the original complaint alleged that Respondent pro- posed certain provisions, which it knew were predictably unacceptable to the Union, with the fixed intention of frustrating agreement, as part of its surface bargaining conduct For whatever purpose, Illegal or legal, Re- spondent wanted certain of these proposals in its new agreeement 11 An employee could take time off later by mutual agreement be- tween Respondent and the employee 12 The distinction between machine seniority and job preference is simply one that pertains to the different bargaining units Machine senior- ity was a seniority right in the production and maintenance agreement, whereas office clericals were entitled to job preference Otherwise, the principles were the same incentive pay system," they meant that an employee had the right to exercise seniority to obtain an assign- ment to a specific job or machine, and that machine could not be operated by another employee The em- ployee assigned to the machine could not be assigned to a different machine even temporarily', unless the employ- ee's assigned machine remained idle during the transfer The initial reaction of Robert Thayer, the Union's princi- pal spokesman, was that Respondent's proposal was re- gressive, and he was bothered by its tone, which ap- peared to charge the Umon with being the sole obstacle to full production Respondent ought, instead, to be looking for more union participation, instead of making proposals which permitted employees to make their own decisions without union participation Negotiations on the job preference and mandatory transfer proposals continued without appreciable progress Repeatedly, Thayer claimed that there was no need for Respondent's proposals because the Union had always cooperated with Respondent and that, unless Re- spondent could demonstrate to the Union's satisfaction why the changes were needed, he would not agree to the proposals Thayer testified that Respondent never told him why these new proposals were needed Jocelyn denied that this was so He testified that he called Thayer's attention to specific past problems" and often told Thayer that Respondent wanted the flexibility to assign those whom it wanted to particular jobs, to change assignments, and to require its employees to work when Respondent wanted, and not when the Union consented or the employees condescended to do so In addition, Jocelyn argued that these were proposals which management felt it needed, and, rather than Re- spondent having to prove why it wanted these proposals, the Union had to show the possible, harm which would be done to it and the employees, weighed against the benefits of what Respondent believed would result in the effective operation of its business The concepts had to be included in the collective-bargaining agreement, Joce- lyn said It was the Union's responsirility to propose lan- guage which would protect the employees and eliminate any realistic problems which the Umon foresaw Whatever one may think of these respective positions, it cannot be denied that the negotiators were completely at odds over the job preference and machine semonty and mandatory transfer issues, which Jocelyn ultimately termed absolutes, provisions that Respondent had to have Throughout the remaimng negotiations, Respond- ent maintained that position, although on occasion it re- fined its proposals to meet specific objections which is machines offered greater opportunities for employees to exceed the established standards, and the assignment to those machines was traditionally a perquisite of seniority Without incentive pay, these jobs were still more attractive to the older employee because, although they required more mental and visual skills, the 'machines were physically easier to operate Probably, the more senior employee did not have to work as hard in order to meet the timestudy for his machine and could thus be protected from any disciplmary proceedings based on lack of pro- duction i4 example, Jocelyn argued that employees in some Instances had negotiated special deals as the price for agreeing to transfers 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thayer raised 15 In like fashion, throughout all negotia- tions, Thayer resisted any agreement which would di- minish the right of the employees to select their jobs and machines and retain them Respondent's proposal was a lcPear strike issue" and was "not attainable despite the money" that Respondent might offer The Union was "rigid in this area" These were not the sole issues separating the parties There was another, which Jocelyn had identified as a strike issue, that was equally offensive to the Union Re- spondent wanted to change the basis for the calculation of pension benefits The present plan provided that em- ployees would be paid a flat amount for each year of service Jocelyn proposed to change this by paying the employees amounts based upon their labor grades, so that employees with higher pay scales would receive greater pensions than lower paid employees, even though they had worked the same number of years Thayer found this proposal unacceptable for a variety of reasons, including Respondent's Commitment (Thayer represent- ed) in the 1975 and 1979 negotiations that it would never change the present pension plan Thayer immediately branded it a "strike issue" When the strike commenced on October 19, 1981, more than these absolutes separated the parties The par- ties had discussed a myriad of issues By a few days before the agreement's expiration date, Respondent, in response to Thayer's arguments, had withdrawn many of its original proposals and revised others," but Respond- ent was very much on the offensive and m control of the negotiations That resulted, in part, from Jocelyn's insist- ence that noneconomic proposals be considered and re- solved first, and Thayer's lack of strong resistance 17 Be- cause there was never a meaningful consensus on the ab- solutes, which were "non-economic," Jocelyn did not offer Respondent's wage proposal (11-, 10-, and 9-per- cent increases m the proposed 3 years of the agreement and pension proposal (from $9 to $9 25-$10 50 in the first year of the contract, depending on the employee's labor 15 For example, Respondent lunged the mandatory transfer proposal to temporary transfers of up to 30 days, only where necessary It agreed that no employee would suffer a loss of pay, and, when a transfer was to a higher paying position, the employee would be paid the higher rate Respondent would not transfer an employee to a higher seniority group where there was a layoff, except when Respondent required an employee to fill in for someone who was temporarily absent By the commence- ment of the strike, Respondent's demand had narrowed to its use only when a request for volunteers was unsucesseful Respondent limited its job preference proposal to apply to assignments only within the same labor grade and shift and only to maximize efficiency and for good busi- ness reasons 16 For example, when Thayer rejected Respondent's proposal to delete timestuches, Jocelyn agreed that the Union's president would make the final decision about whether the tunestudy would be conducted Then, he withdrew his entire proposal on umestudies if the Union would assure Respondent that it would ask for a study only when it sincerely believed that a standard was significantly incorrect Respondent withdrew its pro- posal to remove the requirement that the Union had to consent before a senior employee's request to be laid off before a junior employee could be granted In response to the Union's proposal to streamline the griev- ance procedure, Jocelyn agreed to eliminate one step of five when the grievance involved suspensions and discharges i " Thayer described that the past practice was that Respondent wanted to agree first on non economics, the Union wanted to discuss economics, and the discussion "just meshed" in a "continuous process" grade, to $10 25-$13 in the third year) until 2 days before the contract was to expire Thayer did not react immediately to the amounts of the wage increases Rather, he said that a 3-year agree- ment presented a major problem Within a day, he real- ized that he could not find fault with the amounts that Respondent proposed, and his "major problem" disap- peared However, several other proposals, which de- pended o the length of the agreement, had to be revised Because the contract deadline was soon approaching, and with the absolutes unresolved and, to Thayer, unre- solvable absent total surrender, Thayer, in the hope of reaching an agreement, agreed to many of Respondent's "final" proposals and withdrew many of the Union's pro- posals However, Thayer, in addition to maintaining his opposition to the absolutes, continued to propose in- creased vacation pay and safety shoe allowance, chiro- practic and additional dental benefits, and revision of the arbitration procedure He also proposed to give up washup time, provided for in the present agreement, and trade it for 2 days of sick leave Finally, he rejected other proposals sought by Respondent, including an in- crease of the length of the then 90-day probationary period and a revision of the dates for the Christmas shut- down, when the employees customarily took their vaca- tions But this brief and incomplete recitation of what re- mained for further discussion is not a wholly accurate one Shortly before the stnke commenced, Respondent withdrew its offer On Friday, October 16, Jocelyn an- nounced that he wanted to conclude negotiations by 9 o'clock that evening and that, if no agreement had then been reached, Respondent's offer would be withdrawn Negotiations continued until well past that hour—Joce- lyn first proposed Respondent's wage offer at almost 10 p m —and, finally, at sometime after 245 a m, Jocelyn withdrew Respondent's entire offer, but not before offer- ing to extend the expiring contract for another week to permit additional bargaining, with any agreed-upon wage increase to be retroactive He also cautioned later that the absolutes would remain on the table 1 week from then, and the week after that On October 18, the Union's membership, which was advised of both the Union's and Respondent's last offers, rejected the exten- sion, and the strike began C The Negotiations from October 18, 1981, to February 26, 1982 When the parties resumed negotiations on October 21, 1981, a session which Jocelyn asked to be held to get feedback from the Union's membership, he acted as if his offer were still on the table and invited Thayer to review both his and the Union's final offers and define the areas of differences From Thayer's perspective, there were still numerous strike issues the absolutes, the pension plan, the dates for notification to employees that they would have to work during the normal plant shutdowns, and the relaxation of the arbitration procedure Thayer's proposal to exchange washup time for sick days sudden- BROWN & SHARPE MFG CO 599 ly became a strike issue The parties were stalemated," and there were hints that the Union's acquiescence in a system to ensure that the employees came to work on time, did not leave early from work or for lunch, or arrive late from lunch ("clock ringing"), made during the final stages of negotiations before the strike, would be withdrawn At one point, Jocelyn said to Thayer that he thought that Respondent's wage offer was sufficient to have bought machinery seniority, but apparently the Union did not think so A meeting later that month was the occasion for Thayer to vent all his frustrations The Union had never negotiated economics, had never had a "fair shake" at the table, and had the final proposal "dumped on us" The Union's negotiating committee was not part of any negotiating process Respondent was a dictator, refusing to discuss and agree upon the demands of the Union and proposing working conditions that Respondent "knew we couldn't accept" Respondent's absolutes constituted an attempt by it to "bastardize the seniority system" It was impossible for the Union to accede to Jocelyn's re- quest to write language that would protect the employ- ees 19 The reason, Thayer explained, that the Union was on strike was the "erosion of the seniority rights of the people" On specific proposals, Thayer raised one new argument He objected to the mandatory transfer provi- sion because, as drafted, it put the onus on the Union to agree with Respondent that there was a critical need for the transfer and that a junior capable employee should be transferred The Union would not tell an employee to move when he did not want to The Union and Respondent met four times in Novem- ber On November 6 Jocelyn, responding, at least in part, to Thayer's contention that Respondent had earlier pledged not to touch the benefit schedules of the pension plan, proposed to grandfather all employees hired before the contract-signing date Those employees who became covered under the pension plan after January 1, 1976, would be paid pension benefits based on each year of their service Respondent offered, for a 3-year contract, $10-$11-$12, which equaled the Union's last offer before the strike Those employees covered by the plan on Jan- urary 1, 1976, would be paid on the same schedule or the newly proposed benefit by labor grade amount, whichev- er was higher Thayer showed no sign that he would agree to this compromise The parties could agree only on something negative, that they had a new problem during the strike, Respondent had discharged some em- ployees Thayer said that he had to obtain a strike settle- " Thayer described his frustration with Jocelyn's attempt to prod the Union into supplying Input Into the absolutes You can't get creative to put other language The elimination of ma- chine semonty, is the elimination of machine semonty Your can't address It You can't say you have a partial elimination of machine seniority It either is or It Isn't which was the same box we were in throughout the year of negotiations I mean, short of agreeing to it, how can you address it Other than agreeing to your elimination of machine seniority "Thayer explained to Jocelyn "Look, you can't disguise the Issue, there's nothing that you can do, we can come up with, that changes something that says you lose machine seniority and job preference, and there's no way to disguise it, it's there, it's not going to change, you haven't changed" ment agreement which provided for no discharges and no repercussions The parties then recessed and returned to discussions that evening when Thayer presented a counterproposal Earlier in the negotiations, the Union had sought a union-shop provision for its office clerical employees On October 17, immediately before the strike, Thayer with- drew that proposal Now he put it back on the table He also retreated from his offer to give up washup time for sick days and his previous tentative agreements prohibit- ing employees from earning seniority while acting as su- pervisors and increasing the amounts of shift differen- tials He modified his proposals for bereavement leave, union stewards, and clock ringing He also wanted am- nesty for all the striking employees and proposed that Respondent reimburse the employees for any insurance premiums they paid during the strike and assume the ob- ligation for all claims which would have been covered had there been no strike Jocelyn commented that Thayer's new proposal put the parties further apart on 25 items than they were before On 14 of those, the par- ties had previously reached tentative agreement (Thayer agreed at the hearing that, although his new counterpro- posal adopted some of Respondent's proposals, it cost more and was more favorable to the Union than its pro- posals just before the commencement of the strike ) On November 17, Jocelyn made a counterproposal which contained most of the proposals which were of- fensive to the Union Thayer said that he still saw as ab- solutes—not only those proposals that Respondent had said that it had to have but also those proposals that Thayer had said that in no event would the Union agree to—job preference and machine seniority, mandatory transfers, pension plan, Christmas vacation, and the 3- year agreement Thayer described the first two absolutes as being as "dynamite" now as they were 5 weeks before and said that the Union's strike was not economic but was a matter of survival The membership had rejected Respondent's pension proposal The current pension ben- efits were uniform, the people liked it that way, and not one member wanted to change it Less major problems still caused enormous difficulties, even after a month's strike The parties still bickered over clock ringing to ensure that employees did not leave for lunch before they were supposed to They could not agree to the dates when Christmas vacation would be scheduled or to the amount of the shift differ- entials or the shoe allowance or to the inclusion of root canal therapy in the dental benefits or chiropractic cov- erage under the health benefit plan There was also utter disagreement about what should be included in a strike settlement agreement, a dispute which loomed larger each time the parties met All these disagreements were reflected in a counterproposal which Thayer made later that day On November 20, Jocelyn made a new counterpropos- al which differed from its previous offer in only a few respects, but they were meaningful He deleted the re- quirement that the Union had to agree to the mandatory transfer, thus answering Thayer's previous argument that he did not want the Union to participate Of more 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD portance, he added a provision permitting the Union to block any transfer of an employee simply by filing a grievance against it After review, Thayer declared that the parties were still 11 issues apart Commenting on ma- chine seniority and job preference, he said that he had no way to address it "It either is or it isn't Mho was something they wanted and [we] didn't," The union committee did not know how to negotiate with "an abso- lute requirement", it appeared to him that the parties were "dead" On November 23, Jocelyn distributed Respondent's final offer, again with relatively few important changes 20 The mandatory transfer provision was trans- ferred to the management-rights clause and was limited somewhat in its application However, even the presence of any clause mandatmg the transfer of any employee without that employee's consent was predictably not going to be agreed to by Thayer, and it was not To him, it was still "obviously a strike issue" Jocelyn now pro- posed that the contract terminate on November 25, 1984 When there had been strikes in 1975 and 1979, the expi- ration dates remained the same as they would have been without the strikers, argued Thayer, who said that the new date compounded the parties' problems And the discharges of employees for picket line misconduct was "going to be a problem," because Respondent was un- willing to agree on the Union's strike settlement proposal requiring that all strikers be reinstated In sum, there was, according to Thayer, "no way in hell" that the con- tract would be approved by the Umon's membership At membership meetings held later that day, the vote for re- jection was "overwhelming" In early December, a few of the negotiators for each side met in an attempt to think of some ideas to resolve the issues raised by the absolutes One of the approaches was based on a proposal for job ranking made by the Union at the begmmng of negotiations Employees would not be paid by their labor grade for what they did and what machines they operated Instead, the employ- ees were to be paid based on their knowledge and skills Thayer's original proposal was contained in a union con- tract at a nearby manufacturmg plant and provided for workers being paid for their knowledge of some, most, or all jobs That proposal never received a very favor- able reception from Jocelyn, who conducted a brief survey of only 11 of Respondent's approximate 170 se- niority groups and computed $137,000 as increased base wages for just that limited number However, Thayer had frequently contended that job ranking would make unnecessary the contractual protection of machine se- monty and job preference As a result, Jocelyn proposed to Thayer a concept of job ranking, albeit different from what Thayer had origi- nally proposed Jocelyn's progressions to higher labor grades would be automatic, based on lapse of time Eventually, all the workers would reach the highest grade, but what would happen when they obtained their 20 In making these rather summary conclusions, I do not Intend to imply that Respondent was unresponsive to the changes sought by the Union In fact, Respondent made some concessions, although obviously not significant enough to please Thayer highest level caused this new proposal to go nowhere In Jocelyn's words The main objection that I got from Bob, to this proposal was our position when a person could do all, there was no more job preference When they were doing some or most, we told them we would attempt to assign them the work within labor grade, but when they reached the top grade for their job, there was no more job prefer- ence He wanted it the reverse that a person while they were in the first or second step up, no job preference for them because they got reassigned all over the place, to learn their job When the[y] reached the top they maintained job preference Early m the negotiations, Thayer had accused Jocelyn of trying to get job ranking without paying for it By that, he meant that Respodent could transfer employees any- where they were needed if it adopted job ranking Now, he contended that, once an employee knew how to per- form all the jobs in the plant and was being paid for the knowledge, he had the right to pick his own job or ma- chine and not perform anything else It should surprise no one that Thayer's interpretation ended the discussion The strike lingered through the end of the year and into 1982, and Respondent began to take a hard look at where it was and where it wanted to be The employees were now receiving unemployment insurance benefits and would do so for 20 or more weeks, and Thayer ad- mitted to Jocelyn that he was feeling no pressure from the employees to settle the strike Jocelyn decided to supply that pressure In early January, Jocelyn advised Thayer that Respondent was seriously considering hiring replacement employees and advised the Engineers, which was conducting a sympathy strike, that it was considering hiring replacements for their members In order to scare the strikers into thinlcmg that their jobs were in jeopardy, Respondent loaded production equip- ment on flatbed trucks and shipped the equipment, un- covered, out of the plant and through the picket line Respondent's officers began to give interviews to the news media, and Respondent telephoned Rhode Island Governor Joseph Garrahy to warn that it had to take se- rious steps if it were to survive Fmally, Respondent commenced interviewing prospective new employees These steps had minimal impact The Federal Media- tion and Conciliation Service (FMCS) called the parties to a meeting in Boston The parties never met face to face, but Respondent announced that it was seriously considering hiring replacement employees because the striking employees were seemingly content to receive un- employment insurance benefits and the Union had no im- petus to settle In early February, Governor Garrahy asked Don Roach, Respondent's president, to address him and his representatives and the Union's negotiating committee about the competitive disavantages which faced Respondent Roach reviewed Respondent's posi- tion, specifically identifying that problems of inefficien- BROWN & SHARPE MFG CO 601 cies were mvolved 21 and had to be solved The Gover- nor asked if the parties wanted to resume negotiations Thayer said that he would sleep on it On February 14, Respondent published a full-page ad- vertisement in the Providence Journal which reproduced a letter previously sent to its employees The letter warned that Respondent had reached a "fork in the road" and, with no prospect of an early settlement, it had to consider its survival even if that meant hiring re- placement employees (By then, Respondent had already begun hiring replacements for the Engineers ) On Febru- ary 18, the parties met to negotiate about Respondent's notice that it intended to subcontract certain bargaining unit work The meeting was aborted, however, when Thayer insisted that the negotiations include consider- ation of a strike settlement agreement and Jocelyn insist- ed that the subcontracting decision should not be bogged down by and confused with the contract negotiations On February 22, about 1000 pickets held a "solidanty day" protest, which resulted in personal injury, property damage, the closing of Respondent's plant, Respondent's injunction action in the Rhode Island Superior Court and filing of an unfair labor practice charge, and, ultimately and of greater consequence to this proceeding, hard feel- ings and new issues which further complicated the settle- ment of the dispute between the parties D The Status of the Negotiations, Impasse By this tame, the strike was more than 4 months old If the original unfair labor practice complaint were still pending, I would have to determine whether Respond- ent's violations of the Act caused the breakdown of the negotiations, but I do not have to do so now All that is before me is the status of negotiations so that I may de- termine whether future events affected or altered the re- lationship between the parties and Imposed upon Re- spondent certain legal duties with which it did not comply I conclude that, as of the end of February 1982, before the relevant 6-month penod during which unfair labor practices are alleged, the parties were at impasse, and they had been at impasse for some time The Board defined impasse in Taft Broadcasting Co, 163 NLRB 475, 478 (1967), enfd sub nom Television Artists AF7'RA v NLRB, 395 F 2d 622 (D C Cir 1968) Whether a bargaining impasse exists is a matter of judgment The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations, are all relevant factors to be considered in deciding whether an Impasse in bargaining existed The negotiations began in September 1981 and the par- ties met 10 days, some of them very full days, prior to the strike The complaint no longer alleges that there was any lack of good faith at that time The overriding issue that kept the parties apart, and one that was of the greatest importance to the parties, was Respondent's desire to have complete flexibility in its assignment of employees to work, to transfer exployees to positions where Respondent needed them, and to require them to work when Respondent desired Jocelyn represented at the very beginning of negotiations, and he never misled Thayer, that Respondent was not going to sign an agree- ment without the two absolutes Conversely, the Union interpreted Respondent's proposals as a full assault on the employees' seniority nghts, and some of 'Thayer's comments, quoted above, demonstrate that he thought that there was no possibility of a settlement which in- cluded the absolutes Indeed, on October 17, Thayer re- jected Jocelyn's proposal to extend the agreement for a week, because the absolutes would remain on the table and the Union would never agree to them Thus, I find that the parties well understood that they were at im- passe as early as the beginning of the strike, at least if they continued to maintain their positions regarding the absolute, as they in fact did Another way of determining whether the parties are at impasse requires an inquiry into the possibility that the parties will change their positions Is there a "ray of hope with a real potentiality for agreement if explored in good faith m bargaining sessions ?" NLRB v Webb Furni- ture Corp, 366 F 2d 314, 316 (4th Cir 1966) Or would additional bargaining be futile? Alsey Refractories Co, 215 NLRB 785 (1974) And would it be fruitless to hold fur- ther meetings? NLRB v Dell, 283 F 2d 733, 740 (5th Cir 1960) Based solely on the absolutes, I conclude that there was an impasse on October 18, 1981 Even if this conclusion were doubtful, surely the parties had reached an impasse by the end of the next 4 months There were some negotiations in October and some substantive and productive sessions in November, at least to the extent of agreements reached which avoided some minor disputes But all the major controversies remained Not only were the absolutes untouched but also the parties could not even think of a way to approach the problem of meeting some middle road, with each side preserving something At the end of the November sessions, Thayer took Re- spondent's final offer to his membership, which rejected it overwhelmingly No new negotiations were scheduled The only event of moment in December was the attempt by Jocelyn to think up some new way of approaching the items in dispute His group came up with an idea, based on Thayer's proposal, but Thayer's quick rejection made it obvious that semonty rights were sacred to him and that he would not bargain them away Nothing hap- pened in January and February 1982 that would give anybody hope that there was a better chance of a settle- ment With Respondent's threat to employ replacements, the positions of the parties could only harden, and they did I conclude that by the beginning of any arguably ap- plicable 10(b) period, the parties were at impasse The breach unfortunately grew wider E The Negotiations from February 26 through March 1982 By late February 1982, some of the Umon's unfair percent that of workers in Japan labor practice charges had been dismissed by Region 1 21 Roach stated that the productivity of Rhode Island workers was 60 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and were being appealed to the Office of Appeals, the strike had its moments of violence, and Respondent was seeking an injunction (its state court action had been re- moved by the Union to the Federal court), the newspa- pers were reporting that the Union wanted to resume ne- gotiations, and Romeo Calderone, the Rhode Island di- rector of labor, asked the parties to meet with him on February 26 The meeting was held, but the parties re- mained in separate rooms Jocelyn told Calderone that Respondent's final offer made on November 23, 1981, would no longer settle the strike, because Respondent had incurred costs of $12 million during the strike Joce- lyn was not even going to make a proposal If the Union had one, he would listen to it, but he warned that Re- spondent had learned much from operating the plant during the strike with nonumon personnel, and any set- tlement had to reflect the lessons learned Calderone left to confer with the Union and returned with a written proposal in which the Union agreed to some provisions that it had not agreed to before Howev- er, regarding the mandatory transfer of employees, there was written next to it "discuss and resolve" To Jocelyn, "after 20 weeks of strike [this] was a non-proposal" Later, Governor Garrahy arrived and told Jocelyn that the Union was prepared to move on the absolutes Joce- lyn could not contain his anger and told the Governor that he was being used or had misunderstood or (and in less polite terms) did not know what he was talking about Jocelyn asked him to go back to the Union and venfy that it was prepared to move The Governor re- turned to report that the Union was not so prepared 22 I take a brief pause from this narrative to indicate what issues remain in the complaint regarding Respond- ent's alleged surface bargaining In a nutshell, not much of 19 factual allegations relied on as evidence of the unfair labor practice, only 2 remain Respondent is charged (1) with failing and refusing to make any bar- gaining proposal from March 28, 1982, through May 1983, and (2) on or about June 25, 1983, with "introduc- ing new, regressive and predictably unacceptable propos- als into negotiations" Accordingly, I describe the negoti- ations solely to make understandable my findings relating to these remaining allegations On March 2, the United States district court ruled that it had no jurisdiction over Respondent's injunction action and remanded it to the state court where, after the first hour of hearing that day, the judge instructed the parties to return to negotiations for 5 days That prompted some intense, but ultimately fruitless negotiations which began the next day and ended 2 weeks later, with the parties in even greater disagreement It started with Jocelyn's pres- entation of some new written proposals One permitted Respondent to require employees to take physical exanu- nations and to transfer employees who were receiving workmen's compensation benefits to different jobs so they would continue to work Another proposed a ban 22 Jocelyn's testimony about his anger with Governor Garrahy leads me to believe him In addition, I find that the Union was not prepared to change its views about the absolutes, as in fact it did not for more than a year thereafter I find that R Exh 63 was given to Respondent and that the fifth page attached to G C Each 50 was not given by the Union to Calderone for dehvery to Respondent on sympathy strikes Another contained several new sub- stantive proposals, (1) supervisors would be permitted to perform some unit work which was incidental to their supervisory duties so that they could perform minor maintenance and could routinely revise standards and methods of operation, (2) there would be a "labor pool" to permit Respondent to assign employees immediately to eliminate bottlenecks in the production system and reduce overtime, and (3) the expiration dates of the agreements for the clerical unit and the production and maintenance unit would be different, the latter expiring on January 25, 1985, after the end-of-the year shipping rush and when Respondent would have better informa- tion on which to base its proposals Jocelyn revised one of his earlier proposals Respond- ent had learned during the strike that many of the time standards were mcorrect Some were too high, others, too low Timestudies cost money, and it was in the fore- man's interest to ensure that the standards were correct because he was evaluated on the performance of his em- ployees Supervisors had been running the machines and were familiar with them, and the supervisors would decide whether a timestudy was necessary or whether the request for a study was made only to harass Finally, Jocelyn proposed a strike settlement agreement which provided, among other things, that the replacement em- ployees would maintain their employment and that any returning employees had to take physical examinations To all this, Jocelyn added that he would probably have additional proposals based on Respondent's experience of running the plant during the strike Thayer asked Jocelyn whether Respondent's last pro- posal was still on the table and whether the new and re- vised proposals were merely modifications of the last proposal Jocelyn replied that Respondent was no longer willing to settle for what it had previously offered The Union had no proposals from Respondent, other than the ones that he had just presented He was preparing lan- guage for other proposals After a caucus, Thayer an- nounced that the new demands gave no signal that good- faith bargaining was going to commence He requested that Jocelyn withdraw his last proposals so that the par- ties might discuss and resolve the proposals that original- ly had created the strike Jocelyn refused to do so Cal- derone opined that the parties were "worse off" than they were at the beginning of the strike Thayer said that the Union was bargaining in good faith, pointing out that he had dropped his opposition to several of Respondent's proposals on February 26 without even coming to the table Jocelyn replied that Respondent had learned much m the last 20 weeks and had developed different methods for getting the work done, such as a teamwork concept and employees going back and forth between different jobs There was nothing magical about employees doing other kinds of jobs Supervisors were running as many as four machines, were moving their own work, and were not killing themselves They did not need employees from the maintenance department to help them move Besides, different methods were not warranted the strike had cost $12 million and Respondent was not quoting orders and not shipping some goods Thayer contended BROWN & SHARPE MFG CO 603 to Calderone that Jocelyn was going through the mo- tions "[B]ased on the proposal they put on the table this morning, how could he ever even conceive that this company was going to try to resolve this thing "23 That evening, Thayer began to review where the par- ties were, identifying the proposals that he thought the parties had agreed upon and one, the amount of the shift differentials, as proposed by Respondent, that the Union was now agreeing to Jocelyn interrupted and stated that he was still reviewing those proposals, that Respondent had found during the stnke that certain changes might become useful, and that it might want to make other changes or no changes at all Jocelyn said that, even on matters previously and tentatively agreed to by Respond- ent, there was no longer a tentative agreement on any- thing because of what Respondent had learned during the strike For example, Respondent now felt that an em- ployee should work the full day before and the full day after a holiday in order to be paid for the holiday, a pro- posal that Respondent had previously made and with- drawn 24 Respondent was no longer willing, as it had been before, to agree, as the Union had proposed, that no more than 50 percent of the employees could be re- quired to work during any normal vacation week On other matters, however, Jocelyn said either that the proposal tentatively agreed upon was still acceptable or that Respondent was not considering any change of its previous position or that Respondent agreed to a cer- tain proposal, once Thayer had changed the Union's po- sition to an agreement with what Respondent had previ- ously proposed On yet other issues, such as mandatory transfers, Jocelyn said that Respondent might submit an- other proposal "[That one's under active consideration as far as the company was concerned" When the discus- sion turned to some economic matters, even though there had been a tentative agreement, Jocelyn said that there was none, notmg "You'd better know that the eco- nomics is a big issue from here on out because this strike has cost the company a lot of money, and the whole pro- posal regarding the economics is still up in the air" On still other proposals, when Thayer agreed to certain pro- posals, Jocelyn reminded Thayer that he had earlier in the session given a new proposals on that very subject, and the new proposal reflected that Respondent was no longer willing to agree to proposals that it had been will- ing to accept before the strike Thayer argued that by so doing, Jocelyn was digging the hole deeper and deeper, that the negotiations were getting worse, and that Respondent was offering propos- als that were regressive Sometime later, Jocelyn re- marked that the only movement by the Union was on as Thayer had other reactions to Respondent's proposals The Union was certified for the production and maintenance employees, and there was "no way that they realistically could expect us to give up our nghts under that certification and now accept supervisors doing bargain- mg unit work" It was "Inconceivable" to expect that the Union would accept that proposal The labor pool was a "one-way street," without benefit to the Union "[There's just no way in hell that they could even realistically expect us, with these Issues now staring us in the face, to get serious about any kind of resolve It was all a one way street and It con- tinues to be that one way street" 24 The current agreement provided only that the employee be "in at- tendance" both days the benefit for safety shoes, but Thayer claimed that he had moved on various demands (shift differentials, super- visors' seniority, and sick days) and had not escalated his demands The only items that the Union was looking for, contended Thayer, was that its strike should not eco- nomically hurt the employees Some employees had con- tinuing illnesses, and the Union still wanted them cov- ered by insurance (albeit at the employees' expense) One employee had died, and the Union wanted to make sure that Respondent still had life insurance Because vacation pay was a percentage of an employee's yearly earnings, the employees should be credited as if they had worked 40 hours a week during the stnke Otherwise, there would be "a drastic effect on their vacation" pay The parties resolved none of these demands, and they reached no agreement on any of their respective propos- als for a strike settlement agreement, such as retention or termination of replacement employees, recall of strikers, no reprisals, and withdrawal of all unfair labor practice charges On March 4, Jocelyn did not have a written proposal, but he began to review certain of the outstandmg issues He sought the Union's assurance that it would continue to cooperate on the issue of employees' starting times If the Union agreed, he would not offer any new proposals He agreed to leave intact the proposal that Respondent could require only 50 percent of its employees to work during the normal vacation shutdowns However, he had a problem making up for the time lost by reason of the strike and wanted the Union to agree in a side letter that Respondent would have the right to work full depart- ments during the August and December shutdowns in 1982 Jocelyn repeated Respondent's earlier position that an employee must work the full day before and the full day after a holiday to be eligible for that holiday He also said that there might be times that Respondent wanted to move a senior person into another department Thus, he had problems with the concept, previously agreed to by the parties, that junior employees would be moved Furthermore, he said that the contract should not restrict Respondent from transfernng employees into departments that had layoffs, because Respondent might have to clear bottlenecks immediately, without the neces- sity of recalling employees from layoff Finally, he with- drew his earlier proposal that the Union's filing of a grievance would block a transfer The employees would have to accept the transfer, but the grievance could con- tinue to arbitration If the Union agreed to this revision, Respondent might be able to avoid the concept of a labor pool Jocelyn discussed other matters, such as his new pro- posal on clock ringing, and defended Respondent's insist- ence that unit employees were entitled to gain seniority credit while working as supervisors and that supervisors could do unit work Thayer questioned whether Jocelyn was serious about the latter demand The employees would not agree to that provision The discussion turned to the strike settlement agreement Jocelyn announced that under his proposal the replacement employees would continue to work and the employees who were discharged for strike misconduct would remain fired 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Any standards that the supervisors found were incorrect would be changed He still insisted on physical examina- tions, noting that the strike was then 20 weeks old and Respondent would not be held responsible for any inju- ries that the strikers had incurred elsewhere He talked about the possibility of the phased recall of the stnkers, but said that work had dropped off Finally, he threat- ened that he had more proposals m this brief case, but he would leave them there for the present However, if the strike lingered, he might want to add more proposals In the meantime, the parties had enough on the table to dis- cuss Thayer complained that, although the Union had pro- posed a complete contract, Respondent was holding back, with the Union wondering what it was going to add later If the Union had any hope of reaching an agreement, it had to know all the issues, rather than re- solving some issues, only to have Respondent make new proposals Jocelyn refused to commit himself and re- served the right to add more proposals or modify present proposals at any time The state mediator reminded Joce- lyn that the parties had returned to negotiations under a court order and that the Department of Labor was to report to the judge Without an offer from Respondent, the mediator did not know what he had to settle It was impossible for him to mediate Thayer continued to complain that he was bargammg in the dark and that it was impossible to bargain with threats of new proposals or modifications hanging over the Union's head While the Union had confined itself to its orgmal proposals and had not escalated its demands, Thayer contended that Respondent had made eight new demands, which it knew were so "totally unacceptable that the Union and its membership could never agree and [were] obviously so regressive that [they were] unable for acceptance" Provisions which the Union thought had tentative agreements, Thayer contin- ued, were no longer agreed to, and Respondent was mamtammg that it had the right to add more provisions Thayer thought that the Union knew why it had struck m October 1981, and the reason was Respondent's abso- lutes Now Jocelyn was moving the center of the cause of the strike, and the Union was unable to negotiate co- gently Thayer pleaded with Jocelyn to make a complete offer so that the Union could agree to the proposals or disagree with them or at least agree to disagree He sug- gested that, without such a proposal, Respondent was not attempting to negotiate but was only sitting at the table because the judge had ordered Respondent to do SO Calderone and the mediators supported Thayer, con- tending that they could function only if they knew what the issues were Jocelyn retorted that the Union had also changed its position, revertmg from its previous tentative agreements on clock rmgmg and that employees earned seniority credit when acting as supervisors Nonetheless, Jocelyn assured Thayer that he would not alter his posi- tion for 5 days Thayer understood that, if no agreement were reached in 5 days, "all bets were off" and Jocelyn would make additional proposals Thayer proposed that the parties recess and caucus and put together their entire proposals Jocelyn replied that he did not know whether he was prepared to do so That afternoon, Respondent withdrew its request for an injunction, and so the judge's order to negoitiate was no longer effective However, the parties resumed their negotiations the following day, Friday, March 5, but there was no exchange of proposals Indeed, little hap- pened, except that Calderone became angry, felt that the mediators were being used, threatened that he would file a report with Governor Garrahy, and called upon the parties to prepare and exchange full proposals Jocelyn said that he needed time to discuss his proposal with Re- spondent, and negotiations recessed until Tuesday, March 9, when the parties exchanged complete propos- als The Union's proposal still showed differences on a variety of lesser issues the length that an employee could accumulate the allotment for safety shoes, the number of days that an answer had to be filed in the second step of the gnevance procedure, and the amounts of different dental benefits The nght of Respondent to require employees to take physical examinations was still rejected, as were the no-sympathy strike clause and the expiration dates of the agreements However, the Union drastically changed its proposal regarding machine seniority and job preference and man- datory transfers by offering to reduce the then present 118 seniority groups (in the production and maintenance unit) by classifying them by occupations and no longer by departments For example, painters in the paint de- partment m all divisions would be mcluded m the same classification, and there would be seniority in that classi- fication Now, Thayer explained, if Respondent had 10 painters in the machine tool division and 10 in mdustnal products, it would have a pool of 20 people whom it could use wherever it wanted at any time, with total flexibility The Union's proposal included only 23 occu- patinal classifications, and Respondent could assign em- ployees even from the North Kingstown to the Greys- tone facility, if it felt that it had the need to do so, and assign senior employees before their juniors, or vice versa, without limitation Jocelyn prefaced his presentation by stating that Re- spondent's proposal would remain on the table until March 17 In addition, he noted that a van had recently been blown up, and if there were any other violence, he would not negotiate Thayer denied knowledge of any such incident Jocelyn later reviewed each of Respond- ent's proposals, indicating the tentative agreements and the areas where the parties were still apart in their think- ing Most of the tentative agreements reflected agree- ments made months before The disagreements were almost the same as those which had lingered and festered for months, except for those proposals which Jocelyn first proposed in early March Much discussion centered on the Union's new proposal for seniority by occupational classification Jocelyn noted that it would do away with machine seniority, and Thayer agreed, adding that there would be no job pref- BROWN & SHARPE MFG CO 605 erence either 25 The Union's proposal, Thayer said, would allow Respondent to move employees wherever Respondent wished The only possible negative impact would involve layoffs, because Respondent would have to lay off first the junior employee of all the employees in the classification Otherwise, Thayer contended that his offer encompassed Respondent's labor pool proposal of a week before 26 However, Thayer refused to give Respondent all that it wanted Thayer still maintained that the voluntary transfer provision worked well and he did not want to amend it Although Jocelyn thought that the occupation- al grouping was interesting, he contended that Respond- ent still wanted to mandate a transfer of any employee anywhere, and Thayer's proposal did not fully address mandatory transfers For example, if all painters were busy, Jocelyn wanted the right to dictate who else should paint He also said that Thayer's proposal raised problems about overtime assignments (because the con- tract provided for a form of equalization of overtime, Respondent would have to divide overtime with some equality among the employees in all the divisions, even if only one division had substantial overtime), layoffs (be- cause of the three divisions, the one with the junior em- ployee might be the busiest and could ill afford to lose an employee), and upgradmgs (again, the Union's pro- posal might force Respondent to transfer an employee from its busiest division to one which was not busy) Jo- celyn said that he viewed Respondent's viability not as a company as a whole, but as three separate divisions, and he was not interested in combining them into one seniori- ty group Finally, he complained that Respondent was satisfied with the general principle of machine semonty, which encompassed specialization on particular ma- chines, and felt that the Union's new proposals would interfere with a worker's skills Thayer countered that the essence of Respondent's mandatory transfer proposal was to get rid of departmen- tal and machine semonty and yet, now, Jocelyn was ar- guing that both were beneficial Nonetheless, Thayer conceded at the hearing that Jocelyn had never proposed that mandatory transfers would be 'muted to divisional lines He conceded that, under the Union's proposal, Re- spondent could transfer only those employees m the same labor classification He conceded that one of the disputes still centered on the Union's insistence that transfers outside of the labor classification would still be voluntary, which Respondent wanted to make mandato- ry Finally, Thayer also conceded at the hearing that Re- spondent's proposal afforded Respondent more flexibility than did the Union's The discussion then turn to the strike settlement pro- posals Thayer still insisted that all striking employees who had preexisting illnesses and those who became ill during the strike receive their medical benefits He also proposed that Respondent rescind all promotions, re- schedule all missed vacations, and take no reprisals 25 Thayer had not made a similar proposal for the office clerical em- ployees, but said that, if the concept was agreed to for the production and maintenance employees, a similar concept could be worked out for the office clencals 26 Jocelyn's March 9 proposal omitted any reference to a labor pool against the employees He reworded his striker replace- ment proposal, but it was effectively the same—Re- spondent would immediately recall all employees, strik- ers, and replacements, by seniority Thus, the replace- ments (other than strikers who returned during the strike or employees who never went on strike), who had com- paratively little seniority, would be bumped by the strik- ers who had many more years of service The result of the Union's proposal would be that most of the replace- ment employees would lose their jobs and the strikers would be rehired After a caucus, Thayer reviewed Respondent's propos- als, indicating, as Jocelyn did earlier, where the parties had reached tentative agreements and where the parties differed The differences were substantial They included the requirement that employees may receive holiday pay only if they work the full days before and after the holi- day, the scheduling of Christmas week, and what par- ticularly riled Thayer was that Respondent had the power to require employees to work on New Year's Eve, Respondent's proposal that it could require employ- ees to work during the normal August and Christmas shutdown and, at its sole discretion, offer them either time off or pay in heu of their vacations, without afford- ing the employees any right to choose what they wanted, mandatory transfers, which had become worse because Respondent withdrew provisions requiring it to transfer junior employees before senior employees, pro- lubiting transfers into departments where there had been layoffs, and blocking transfers when a grievance had been filed, separate expiration dates for the two con- tracts, a no-sympathy strike clause, 27 job preference, Re- spondent's proposal to limit the accumulation of the pur- chase price of safety shoes for only 2 years, not a longer period, as the Union wanted, physical examination of all employees, 28 nmestudies (but the Union now would agree to Respondent's proposal of November 23, 1981), pensions (if the cost of the Union's proposal was the same as Respondent's, why should pensions be an issue, argued Thayer), supervisors doing bargaining unit work, even with Respondent's newly proposed limitation that supervisors could not work than 20 percent on unit work in any calendar quarter," a system of seniority that would establish four classes of employees, (1) employees working before the strike who worked during the strike, (2) employees hired during the strike, (3) strikers who had been replaced by other employees after the strike commenced, and (4) unreplaced strikers, 3° increases in the dental plan, changing of standards on machines by supervisors, without any union participation, and with- drawal of all litigation The negotiations for the week ended with Thayer's complaint that Jocelyn was holding a gun to the Union's head by imposmg a March 17 expiration date on his pro- 27 Thayer stated to Jocelyn "I don't think I have to tell you how far, how much consideration we could give to something like that" 26 Thayer said "(There is no way that the memberslup is going to buy that, there is no way that we can even recommend that" a° Thayer said "There was Just no way in hell that we could let super- visors do work that we had been certified for" 02 Thayer said, in "strenuous terms" "[There was no way that we were going to agree to that" 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posal and a general discussion of the Union's labor classi- fication proposal, which Jocelyn thought represented some "good thinking" that he wanted to examine more closely He stated that he had some concerns, but he would see whether the proposal could be "fine-tuned" The parties discussed the Union's proposal again on March 12 Jocelyn stated that, while he would continue to examine the benefit of combmmg some of the labor groups, he did not believe that the Union's proposal an- swered fully what Respondent's mandatory transfer pro- vision attempted to accomplish Furthermore, the Greys- tone facility was a separate division, and the employees' skills there were different from the employees' skills in North Kingstown Thayer contended that his proposal was more beneficial to Respondent than the current con- tract For example, if there were a layoff, it was conceiv- able that one division's most junior employee might have 10 years' seniority, and he would have to be laid off At another division an employee with only 3 years' seniority would maintain his job Respondent would retain more experienced employees by agreemg to the Union's pro- posal Jocelyn countered that Respondent invariably found other employment for the more experienced em- ployee who otherwise would be laid off Ultimately, Jocelyn said that he could not view the Union's proposal as a substitute for Respondent's propos- al of mandatory transfers and the elimination of machine seniority and job preference Again, Thayer contended that his proposal eliminated machine seniority and that he addressed the job preference proposal by broadening the group entitled to jobs to include all the skilled em- ployees Again, Jocelyn argued that, if the group were broadened, Respondent would have more difficulty in laying off and upgrading employees and equaliziang overtime Thayer said that the parties were getting no- where and accused Jocelyn of not even thinking about the Union's proposal The contract was to include Re- spondent's proposals and nothing else, they were abso- lutes Calderone said that, because Respondent had re- jected the Union's proposal, he saw no pomt in contmu- mg to talk about any of the other issues, and he called for a break in the negontions He would confer separate- ly with the parties If he believed that there was a point in resuming, he would try to arrange a meeting The parties met on March 17 to discuss Respondent's proposal to subcontract some of its work Later, howev- er, the discussion turned to the contract negotiations, and Thayer accused Jocelyn of escalating his demands Joce- lyn refused to debate whether ins proposals were escala- tions or new proposals, but stated that they reflected conditions that Respondent now thought would make it more competitive He referred to the 1975 and 1979 strike and said that Respondent's resolve was never firmer One side was merely going to have to persuade the other Respondent's original demands were still unre- solved, and Respondent was prepared to hold to its de- mands until the economic pressures brought one side for the other to its knees That day, after the meeting, Thayer wrote to Jocelyn asking for specific information about Respondent's sub- contracting of work, including the costs being quoted by the prospective vendors or Respondent's subsidiaries who were under consideration to manufacture the work Despite the complaint's allegation that Respondent did not supply this information to the Union, Thayer testified that he received the names of the prospective vendors and some of their costs Jocelyn not only exhibited a letter, dated Apnl 30, in which he provided cost infor- mation to Thayer but also testified that he orally gave the rest of the information to Thayer at the bargaining table, a position which is partially supported by the Union's notes of the negotiations held on March 28 The General Counsel's brief omits discussion of this allega- tion, and so I have no guide to what the General Coun- sel believes was not produced in violation of the Act 3 In all the circumstances, the General Counsel has proved nothing, and I will dismiss paragraphs 17(a) and 19(a) of the complaint Earlier, the parties had met on March 24 to discuss further Thayer's request for information, and, although the meeting had been called primarily to discuss subcon- tracting, the discussion also touched upon the general contract negotiations Thayer stated that Jocelyn had never addressed the Union's proposal If Jocelyn main- tamed that Respondent was holdmg to its absolutes and that they were not negotiable, he should openly say so The meeting ended with each party accusing the other of escalating the demands After that meeting, as a result of new alleged incidents on the picket line which result- ed from another "solidarity day" on March 22, 32 Re- spondent again applied for an injunction Again, as part of the judge's consideration of the application, the judge ordered the parties to negotiate over the weekend with the help of the State Department of Labor So it was that the parties returned to negotiations on March 28 Calderone felt that it was best if the parties abandoned their subcontracting negotiations and returned to the March 9 proposal to discuss and resolve the issues, or, at least, to find out where the parties were going Jo- celyn agreed to do so, as long as everyone realized that the March 9 proposal was no longer on the table, that it had a deadline of March 17, and that date had come and gone A heated argument followed, with Thayer corn- planing that he could not make progress without a pro- posal to discuss Jocelyn said that he could discuss the outstanding issues and, if Thayer did not know them by then, they had nothing to discuss However, if the Union had a proposal, he would listen to it and discuss it Thayer said that it was ridiculous, Jocelyn was asking the Union to sit there and bargain against itself Jocelyn reiterated that his proposal had expired and, despite the mediator's urging, he refused to offer it again No further meetings were scheduled, and the parties would not meet again for 4 months, when they met only to discuss sub- contracting 31 I requested counsel for the General Counsel to submit with his brief a proposed order setting forth all the relief which he was requesting That may have provided a clue to what material he thought had not been produced Unfortunately, he faded to do so 32 Jocelyn testified that there were approximately 1500 pickets who closed down the main road There was violence 60 car windshields were smashed, the security shed was incinerated, the Winnebago from which Respondent attempted to videotape the demonstration was disabled, and people were injured and had to be taken to the hospital BROWN & SHARPE MFG CO 607 F The Last Negotiations 1982-1983 In April 1982 Governor Garrahy contacted the parties and offered to set up a faztfmdmg commission, whose purpose would be to hear the issues from both sides and arrive at a potential resolution The parties would not be bound by its recommendations The Union agreed, but Respondent refused, rejected what it perceived to be a political settlement of the strike Accordingly, no com- mission was established nor was factfinding conducted By now, the strike had continued for one-half year, and the parties were further at odds than ever No negotia- tions were held in April, and nothing was scheduled in May, but there was some other activity On April 6, Jocelyn advised Thayer that Respondent had implemented the wage increase and increases of dental benefits, life insurance, major medical, and safety shoe allowance contained in its November 1981 offer On May 10, Jocelyn announced to Thayer four proposals, which were contained in the proposal of March 9, 1982, that Respondent intended to implement eligibility for holiday pay, work dunng August and Christmas 1982 va- cations, 120 calendar days' probationary period, and su- pervisors doing bargaining unit work Thayer did not reply Jocelyn sent yet another letter on May 17, advis- mg that Respondent intended to implement its March 9, 1982 proposal to correct the incorrect standards found during the strike On May 26, Thayer responded to both of Jocelyn's May letters and reminded him that he had placed a deadline on his March 9 proposal, which no longer existed Thayer wrote that the proposed imple- mentations constituted illegal unilateral changes of man- datory subjects of bargaining and requested "immediate meaningful negotiations" Jocelyn declined on June 1" In the summer, Governor Garrahy and the State's Congressional delegation asked the parties to meet in Washington, D C, with Kenneth Moffett, then acting di- rector of FMCS There was a meeting on July 26, but the parties never met face to face Nor was much accom- plished because, although Thayer was willing to discuss his last proposal, he did not want to get "suckered" into negotiating only from his own proposal He also con- tended that Respondent not only was unwilling to put its own proposal on the table but also would settle only on its own terms A month later, on August 26, the parties again met at FMCS, and this time both came to the table The Union made a new proposal, which reflected matters tentatively agreed upon in past negotiations and agreements which the Umon had not agreed to before, 33 Long after the Union had filed its charge in Case 1-CA-19958 alleg- ing that Respondent had unilaterally Implemented its proposals, Jocelyn wrote to Thayer on December 9, 1982, that, despite the earlier notifica- tions, Respondent had not corrected any incorrect standards or imple- mented it's eligibility rule for holiday pay and had complied with past practices regarding assignment of work dunng vacation periods Re- spondent had used "sparingly" the proposal regarding supervisors doing bargaining unit work, which did not deprive individuals of reinstatement or recall from layoff, and Respondent had terminated employees between their 90th and 120th days of employment Jocelyn rescinded the imple- mentation of these proposals, said that he was ready to bargain, and agreed to provide the Union with the names of those employees who had been terminated after their 90th day of employment, to entertain any grievance filed on their behalf, and to waive any defense that the em- ployees were probationary and from which were missing proposals which the Union had previously made but Repondent had consistently re- jected Jocelyn was cautious in his response although he had read the union new seniority proposal, he had not had an opportunity to study it However, it appeared to be a companywide seniority provision, which the Union knew in March was not acceptable, and he felt that the new proposal moved the parties even further from what Respondent wanted Thayer argued that Respondent's subsidiary, which was located in the Midwest, had re- cently negotiated the seniority system that the Union now proposed Jocelyn promised to respond to the pro- posal at the next meeting On September 2, Jocelyn responded to the Union's proposal He noted the absence of any proposals about sympathy strikes and supervisors doing bargaining unit work He said that the Union wanted now to eliminate the contract's product cost measurement plan, which Re- spondent had never proposed and did not want to elimi- nate Jocelyn said that the provision was important to Respondent to gauge employees' performance and to price products He cntimzed the Union's proposal for plantwide seniority as emanating from the contract of a , company which not only manufactured one product but also employed only 160 employees, about one-tenth of Respondent's complement What was workable there, with bumping and job bidding, had no bearing on an op- eration of Respondent's size, and the proposal moved the parties further apart Jocelyn argued that Respondent always had the right to lay off employees, albeit subject to certain rules, but at least employees would be laid off Under the Union's new proposal, an employee who was laid off would have the right to bump any less senior employee, plantwide Under the new proposal, an em- ployee could change his shift every 6 months Respond- ent's employees never had that right One of the recur- ring issues of these negotiations was Respondent's pro- posal that an employee could accrue seniority even while serving as a supervisor Thayer previously wanted to freeze that employee's seniority, and Respondent reject- ed that Now, Thayer's new proposal would have elimi- nated the employee's seniority after 2 years There were other differences, and Jocelyn was astonished that Thayer would even make such an offer Thayer replied that he had tried every type of propos- al to satisfy Respondent's claim that it wanted flexibility' and, if nothing could satisfy Respondent and if Respond- ent's proposal remained the same, then the parties were at an impasse Jocelyn said that Respondent had no inter- est in companywide seniority, it preferred departmental seniority, and, because there was a mix of products be- tween the industrial products and the machine tool divi- sions, he had no desire to move employees between divi- sions Jocelyn suggested that both sides look at and pos- sibly rethink their positions and, if anyone thought of any bright ideas, he should contact the mediators Apparently, no one had any original thoughts The strike continued, and the parties met sporadically late in 1982 to discuss particular changes that Resopondent was thinking about implemetmg On September 9 and 15 they discussed subcontracting and the transfer of work be- 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tween seniority groups, as provided in the expired agree- ment On November 18 they met to discuss subcontact- mg and the closing of the Greystone facility They met on December 8, because Christmas vacation was soon approaching, and Jocelyn had notified Thayer that Re- spondent intended to change the vacation dates and wanted to know whether the Union wished to negotiate Jocelyn then proposed to close a half day on December 24, and, if the employees worked the half day, to pay them for a full day, and the plant would close on De- cember 27-31 Thayer replied that this was one of the Union's strike issues He was unwilling to negotiate por- tions of Respondent's withdrawn offer that Respondent, by threatening to implement them, wanted to discuss from time to tune Instead, he felt that Respondent should place a full and comprehensive proposal on the table Jocelyn refused to commit himself to making such an offer The rest of the meeting was devoted to Re- spondent's notice to the Union of its intention to close its Greystone facility It was later closed During the latter part of 1982, the parties also engaged in written communication By letter dated September 13, Thayer asked Jocelyn for all copies of any transfers nor- mally supplied to the Umon under the terms of the ex- pired contract, upgradings of employees, and any letters of termination It was only after the Umon filed unfair labor practice charges and after the investigation of them began that Respondent supplied some notices of transfers and upgradmgs, but Respondent removed the names of the employees affected by the actions Before the strike, Respondent had given to the Union weekly a separation report listing who left its employ, either by quit or tenm- nation Respondent had not given reports to the Union after the strike began, but Jocelyn testified that Respond- ent had not prepared any reports, and I have no reason to suspect that his testimony is inaccurate In a letter dated September 14, Jocelyn replied that the information regarding transfers and upgradmgs would not be supplied because "that would necessarily require disclosure of the names of employees currently working at the plant" He said that this position had been upheld by the Board's Regional Office, which had ap- proved Respondent's practice of refusing to state the names and addresses of replacement employees, and, since then, Respondent never supplied them to the Union 34 Respondent, however, supplied reports of disci- pline, with the names of the employees, when the disci- pline involved employees who had worked for Respond- ent before the strike The parties did not meet again, except to discuss vari- ous of Respondent's proposed changes of conditions of employment, until the summer of 1983 Their meeting was a result of substantial effort by Thayer, who urged Jocelyn to submit another written proposal after the De- cember 8, 1982 bargaining session That day, Thayer wrote Jocelyn that the Union did not decline to discuss the vacation shutdown, but felt that it must receive a full proposal containing all of Respondent's modifications so 34 In one senes of letters, Respondent represented that the employee dud not want him name divulged to the Union and that he was offered union representation, which he declined that it could fully and intelligently address the outstand- ing issues On December 23 Jocelyn replied that he ought not prepare a new proposal, "a rather major un- dertaking," unless the Union was willing to agree to Re- spondent's proposals not to replace its replacement em- ployees, to discharge those employees accused of serious misconduct during the strike, and to be reimbursed for property damage incurred during the strike The ex- change of letters continued into January and February, with accusations being made by Jocelyn that Thayer was only trying to set up Respondent for the filing of more unfair labor practices charges Finally, on February 18, 1983, Jocelyn agreed to prepare a full and comprehen- sive proposal 35 Thayer should have expected what Jocelyn delivered on June 25 Jocelyn had written to him on February 18, 1983 We intend to utilize what we perceive to be our present bargaining power, to persuade you to give us an agreement which will undo generations of restncitive language and practices and equip us, in terms of flexibility and discretion, to respond to an eventual upswing in a way which would never have been possible under the expired Agreement or any proposal we have made to date Jocelyn's proposal was solely for the production and maintenance unit, the proposal for the office clencals was to follow shortly Before explaining the proposal, Jocelyn reviewed the history of the entire dispute, in- cluding Respondent's hiring of replacements, its making of the March 9, 1982 proposal with the caveat that he had other proposals that he was not making at that time, the Union's development of new tactics, including its massive demonstrations and its picketing of the places of business of Respondent's directors, the strike's effect on Respondent, with an emphasis on the Union's alleged vandalism and character assassination, the financial loss incurred by Respondent, and the expenses of training new employees, repairing property that had been dam- aged, and hiring security personnel He then reviewed Respondent's proposal, which in- cluded the elimination of all past practices and stipula- tions and the union shop, Respondent could unilaterally establish measurment standards or amend or abolish them, without recourse to arbitration, the elimination of tmiestudies, Respondent would designate the dates of the summer and Christmas shutdown with 10 weeks' notice, and cancel or reschedule the shutdowns, without any notice, vacation pay would be based on a percentage of an employee's straight time earnings during the prior year, elimination of all semonty, revision of wage scales, so that employees would be paid different amounts de- pending on whether they were inexperienced new hires, experienced new hires or transferees, or promoted em- ployees, a one-time 11-percent wage increase, with no 35 While the parties were exchanging this correspondence, the parties met on January 12 to discuss a new seniority group which Respondent wanted to create in its industrial products division BROWN & SHARPE MFG CO 609 expiration date for the contract," the pension plan would remain at $9 per month, per year of service, and Respondent would pay a specified amount for health coverage, and the employees, who had never been re- quired to contribute before, would pay the remainder, in- cludmg any increases during the contract Jocelyn summarized that business was "absolutely ter- rible" and "bombing" Respondent had furloughed 200 management employees The plant was running at about 64 percent of capacity He had hopes that business would pick up in the fourth quarter, but in the meantime Respondent reported losses of $12 million, and the strike cost it more than that Respondent spent $26 million on security alone Some product lines were destroyed, some by Respondent's inability to deliver, some by the strike, and some by the economy The only good thing to report was that the Japanese were not penetrating the market but were waiting for the recession to end But they were still present, and still competitive On July 15, the Union responded with its counterpro- posal, which showed no readiness to surrender Thayer highlighted some of the proposals a 3-year agreement, with yearly wage increases of 11, 10, and 9 percent, one increase in the pension to $10, and one increase in life insurance, from $9000 to $10,000 coverage On other matters previously proposed by Jocelyn, Thayer said that he wanted to discuss them Jocelyn excepted to Thayer's failure to propose specific language on certain provisions, notably semonty Thayer's proposal regard- ing that issue of critical importance to Respondent was only "discuss and negotiate" Jocelyn indicated that he was unsure how he wanted to proceed with the negotia- tions, but he agreed to review the Union's proposal The parties next met on August 25, and Jocelyn an- nounced that he considered the Union's proposal incom- plete and could not understand why Thayer requested that he put together a complete proposal Thayer an- swered that Jocelyn had proposed some new concept which the parties needed to explore Jocelyn said that the parties were "miles apart" and he did not know how to convince the Umon that Respondent was sincere and that it was fighting for its survival The discussion con- tinued, questions were asked and answered, and the par- ties resolved nothing On September 2, the Union offered specific language on some proposals that it had previous- ly submitted as "discuss and negotiate" It finally agreed to Respondent's proosal of mandatory transfers, a move that might have had more significance had the Union agreed to Respondent's current proposal However, what the Union agreed to was the proposal that Respondent made in March 1982, and that proposal was no longer being offered by Respondent In addition, the Union re- verted to its proposal of occupational classifications, a proposal which had been rejected by Respondent in March 1982 Jocelyn wanted additional time to consider whether he could integrate certain of the new proposals with Respondent's, but he cautioned that there was "a big gap" Thayer insisted that the best way to close the gap was to start a dialogue about what Respondent *a This was not a firm proposal for the duration of the contract Joce- lyn stated that he was not proposing a duration at that time wanted to attain, but Jocelyn restated that he would ex- amine the proposals, and the meeting adjourned On September 13, the parties met again, and Jocelyn said that the gap that he had perceived was present, that the Union's proposals did not answer his, and that the parties were more "miles apart" than they had been in March Jocelyn said that Respondent won the strike and there was no reason that it should settle on the Union's terms Instead, the Union should settle on Respondent's terms If the Union wanted to do that, it was free to do so, if not, there was no point in further negotiations The last negotiations took place on September 30 and October 4, 5, and 18 The parties have not met since then These meetings involved solely Respondent's inten- tion to implement changes in its health care program so that those employees who took early retirement could no longer opt to be covered under Respondent's Blue Cross- Blue Shield plan by paying the rate paid by Respondent The 106 employees on strike had applied for early retire- ment, and Jocelyn said that their coverage under Re- spondent's rate would cost Respondent money The change took effect in November or December At about this time, or shortly after, the parties were advised that General Counsel Lubbers had ordered the issuance of the complaint in this proceeding On October 24, 1983, Thayer made an unconditional written offer to return to work on behalf of all the striking employees and that day withdrew the Union's picket line Receiving no reply, Thayer wrote again on October 28, asking Jo- celyn to review the earlier letter On November 1, Joce- lyn replied, accepting Thayer's offer However, he ad- vised that there were "virtually no positions currently available" and advised further that the employees had been placed on a preferential hiring list When positions became available, they would be offered to qualified re- turning strikers There followed a series of letters between the parties The Umon insisted that the strikers, as unfair labor prac- tice strikers, should be immediately returned to their former positions Respondent insisted that the strikers were merely economic strikers, who would be rehired only when vacancies occurred In addition, Respondent insisted that returning strikers were entitled to reinstate- ment only upon their passing a physical examination Fi- nally, on November 1, Jocelyn stated his willingness to resume negotiations, but, with the unfair labor practice complaint soon to issue, Thayer, in this and later ex- changes of correspondence, now insisted that the Union would be willing to negotiate only upon the immediate reinstatement of the strikers He took the same position in answer to Jocelyn's request for discussion of an inter- im wage increase and the conclusion of discussions on the early retirement conversion option Furthermore, Thayer agreed to bargain about the implementation of these proposals only if they were part of the total pack- age, but Jocelyn contended that he had a nght to discuss the two issues alone However, if the Union wished to present a total package, it was free to do so The parties remained deadlocked, and the Union, now finding strength in its budding and hopefully successful unfair 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD labor practice proceeding, resumed picketmg in late De- cember IV ANALYSIS AND CONCLUSIONS A Surface Bargaining Section 8(a)(5) of the Act requires that parties to nego- tiations have a sincere desire to reach an agreement NLRB v Insurance Agents, 361 U S 477, 485, 489 (1960), General Electric Co, 150 NLRB 192, 268 (1964), enfd 418 F 2d 736 (2d Cu 1969) A sincere desire to agree, however, does not meant that a party may not engage in hard bargaining or must accede to the desires of the other party Section 8(d) of the Act provides that the ob- ligation to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession" The Board has said "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" Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), citing NLRB v Advanced Business Forms Corp, 474 F 2d 457, 467 (2d Cu 1973) The antithesis of bargaining in good faith is surface bargaining In that instance, a party simply attempts to make it appear that it is willing to reach an agreement, although it has no intention to do so The Board has held that although adamant insistence on a bargaining position is not of itself a refusal to bargain, the following conduct is indicative of bad faith "delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure - to designate an agent with sufficient bargaining author- ity, withdrawal of already-agreed upon provisions, and arbitrary scheduling of meetings" Atlanta Hilton, 271 NLRB at 1603 (footnotes omitted) The original complaint contained a miscellany of this conduct, plus numerous other examples of alleged bad faith In their totality, they may have presented at least a more involved factual basis to support a finding of sur- face bargaining However, all that remains is an emascu- lated complaint containing two allegations from which I am urged to find a totality of conduct that Respondent did not sincerely desire an agreement with the Union The first is that Respondent made no counterproposal from March 28, 1982, through May 1983 The second is that, when at last Respondent made a counterproposal in June 1983, it was regressive and predictably unaccept- able The General Counsel's brief does not explain why the first allegtion violates the Act Rather, the brief re- cites facts and law supporting all the dismissed allega- tions and concludes that the strike was an unfair labor practice stnke from its inception" Then, it contends "The brief states In summary, Respondent, by its overall pattern of bargaining, namely, predetermined set of proposals which were not critical, its disruptive bargaining tactics (declaring an Impasse, cancelling a meeting, setting deadlines for the completion of negotiations), its fail- ure to present an economic package including a pension plan until the very end of negotiations, its communications with its employee[s] engaged in bargaining with no sincere desire to reach agreement and therefore violated Section 8(a)(5) of the Act [Footnote omitted ] that Respondent's March 1982 proposal (which is not al- leged in the complaint) was regressive and predictably unacceptable to the Union, that this prolonged the strike, as did Respondent's advice to the Union that it intended to implement various changes in terms and conditions of employeement, and that—and I quote the argument in its entirety—"the bargaining in the summer of 1982 was a continuation of Respondent's course of conduct bad faith bargainging especially in light of Respondent's refusal to make a proposal" (Emphasis added ) The General Counsel and the Union do not claim that there was no impasse The contend only that the impasse was caused by Respondent's bad-faith bargaining prior to the strike and the applicable 10(b) period Because of my Duncane Heating order, I cannot treat the impasse as one caused by unfair labor practices I have previously found that an impasse existed on October 18, 1981, when the stnke began, and 4 months later, in late February 1982 Reviewing the negotiations after February 1982, I find that the parties continued to be utterly stalemated and that negotiations were fruitless Had it not been for the violence which prompted Respondent to commence an injunction action and the resultant state court order which required the parties to return to negotiations, the parties may well not have met in March 1982, so clear it was to them how deeply divided they were Later nego- tiations were sporadic and minimal Efforts of the FMCS in the summer resulted in nominal new concessions by the Union, but no major accomplishment on the abso- lutes Although the Union made a new seniority propos- al, that would have so altered the way Respondent could do business that Thayer could not reasonably have ex- pected that Respondent would agree to it No substan- tive negotiations were held during the rest of 1982 The only real activity in 1983 occurred when Respondent presented its counterproposal, which now constitutes part of the complaint The summer negotiations showed no signs of a real chance for success In attempting to ascertain whether further negotiations were going to be fruitful, and limiting for the moment my analysis solely to the two absolutes, I find that Joce- lyn was never going to withdraw his proposals He had earlier threatened that they must comprise part of the overall settlement of the negotiations, and, although he was prepared to revise his proposals to meet certain of Thayer's objections and, in fact, did so, he saw no sense in meeting with Thayer until Thayer indicated some assent Until September 1983 Thayer, however, never withdrew his fervent opposition to the elimination of ma- chine seniority and job preference Although Jocelyn re- peatedly asked Thayer to revise Respodent's proposals to resolve any problems that he thought might arise, Thayer did not do so I am not blaming Thayer Thayer expressed in No- vember 1981 that the Union was on strike only because of Respondent's proposals, and not the Union's He had the right to maintain and continue his opposition To him, the absolutes constituted Repsondent's attack on the little seniority protection that the Umon provided to its older members Thayer was not going to risk that loss There was nothing in Jocelyn's proposal Thayer could BROWN & SHARPE MFG CO 611 rewrite to salvage something for his members Respond- ent's proposal either was or it was not Only if it "was not" was it acceptable, if it "was" there was nothing to talk about So firm was his distaste for the mandatory transfer clause that Thayer rejected Jocelyn's revision to permit the Union the unilateral right to veto any transfer pending review by an arbitrator Respondent had no right to transfer any employee against his or her will, and the Union was not going to permit an arbitrator to approve such transfer To Thayer, there was no reason, not even a valid, legitimate, and business-justified reason, that should permit Respondent to force an employee to transfer against his will At least that was Thayer's position until the summer of 1983, when he finally agreed to Jocelyn's proposal made and withdrawn almost a year and a half before By then, of course, Jocelyn was no longer willing to give Thayer some of the protections contained in the prior offer, which Jocelyn had revised to meet certain of Thayer's objections In that respect, Thayer simply accepted man- datory transfers too late As to machine seniority and job preference, Thayer never accepted it at all The dispute involving that proposal contmued throughout all negotia- tions and never showed any sign of resolution Admittedly, these were the only two issues in the ne- gotiations Because the parties were never able to resolve them, they were never able to reach a variety of other issues which appeared to be major stumbling blocks The provisions of a strike settlement agreement, including the thorny issue of the reinstatement of strikers, surely would have created problems My sampling of Thayer's reactions shows how little he thought of certain of Re- spondent's proposals and how he projected that the Union's membership would reject those proposals I find that Thayer thought that bargaining was fruitless and futile Respondent's view was the same In a meeting in Oc- tober 1982 with a committee of Respondent's representa- tives, Governor Garrahy said that he had attended an AFL-CIO meeting where he had been given a hard time about the strike He hoped to resolve it Jocelyn told him that prospects for a settlement were "virtually " Re- spondent was suffering business reversals and had begun layoffs The Union was relying on the Waterman charge for salvation It had nothing to gain by ending its strike The strikers would be giving up their weekly strike ben- efits, and there were no vacancies for strikers to fill I conclude that the parties correctly understood that they were at an impasse and that additional negotiations would not be fruitful, as in fact they proved not to be 38 The first component of Respondent's alleged surface bargaining is that Respondent made no counterproposal after March 17, 1982, while an impasse existed The Gen- eral Counsel's brief omits any authority to support her theory that Respondent violated the Act, and there is un- 38 The views of the mediators support my conclusion Calderone was aware that the absolutes could not be resolved unless the Union agreed to them or Respondent withdrew them He also knew that neither party was prepared to change its position For example, when It became evi- dent in March 1982 that Respondent would not agree to the Union's new semonty proposal, Calderone told the parties that he saw no point in continuing to talk about any of the other issues doubtedly good reason The very existence of an impasse means that there is no real hope that, without substantial and meaningful movement, the parties can reach an un- derstanding What the complaint seeks is a ruling that a party must attempt to break an impasse by making new offers No one has ever imposed such an obligation upon parties to collective bargaining, because it is a finding that one of the parties has a duty to yield on its position However, Section 8(d) states, and it has always been un- derstood to mean what it says, that no one, not Respond- ent here, and not the Union, either, had to make any concession What is remarkable about this alleged component of surface bargaining is that it seeks to invalidate the very concept of an impasse If approved, the complaint dic- tates that a party has the duty to do something to pre- vent an impasse from occurring 39 However, the Board has instructed that "parties' duty to bargain during im- passe is suspended pending a change in circumstances" J Hofert Co, 269 NLRB 520, 522 (1984) Once Respond- ent withdrew its final proposal in March 1982, it "was under no legal obligation to put forth a new proposal regardless of whether the final proposal was explic- itly withdrawn" Id 49 The General Counsel's theory di- rectly contradicts this authority, as well as common sense I find that it lacks merit The second component of the surface bargaining com- plaint, the regressive and predictably unacceptable pro- posal of June 1983, has equally little appeal Collective bargaining depends on not only reasoned consideration of various arguments but also the parties' needs and de- sires A party is free to take any bargaining stance which reflects its preception of its needs and bargaining strength at the time "An employer is entitled to advance a position smcercely held, notwithstanding the employ- er's having taken a different position at an earlier time" Atlas Metal Parts Co v NLRB, 660 F 2d 304, 308 (7th Cir 1981) (footnote omitted) The stnke was more than 20 months old on June 25, 1983, when Respondent made its allegedly regressive proposal Because of the impasse over the absolutes, the negotiations since the beginning of the strike were spo- radic There were some discussions immediately after the beginning of the strike and stretching into November 1981 There was some movement toward reconciling the positions of the parties regarding the absolutes, but Joce- lyn did not move far enough to placate the Union The December 1981 efforts of a "think tank" resolved noth- ing when Thayer changed his position on the effects of job ranking Thereafter, the principal negotiations took 38 The theory of the complaint would support a finding that the Union was equally guilty of surface bargaining because it refused to agree to the absolutes 40 The General Counsel suggests that it was somehow unfair or even illegal for Respondent to withdraw any of its offers at any time or to set a deadline on them That suggestion is unsupported and Inaccurate The reason why a party should be permitted to place a deadline on an offer or withdraw It is that the Board's rules of contract law are qiute different from the technical rules of common law A party may accept an offer months after it was made, even when that party earlier responded with counterproposals and rejections and only later accepted the offer Curtin Matheson Scientific, 287 NLRB 350 (1987), see generally Pepsi-Cola Bot- tling Co v NLRB, 659 F 2d 87 (8th Cir 1981) 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD place in March 1982, and those sessions resulted solely because the state court judge who was considering Re- spondent's injunction application ordered the parties to resume their negotiations Those negotiations brought the parties no closer The absolutes remained a fundamental difference, with no real hope of resolution A stnke settlement agreement became a massive problem The resolution of the rehir- ing of the strikers or the continued employment of the replacements never came close to resolution Additional problems resulted from Respondent's alleged experiences learned during the strike, such as supervisors working on unit work Thayer said that he would never agree to them And the problems grew, and the number and qual- ity of the differences between the parties became greater Their dispute broadkned, rather than lessened By November 1982 the parties could not agree upon the scope of what they should be talking about Jocelyn wanted to discuss the changes that he wanted to imple- ment, while Thayer wanted to discuss the proposed changes in the context of the entire agreement Thayer urged Jocelyn to make a new proposal However, Joce- lyn did not want to expend that effort unles he could have some assurance that Thayer was willing to settle some of the issues which resulted from the strike De- spite Thayer's refusal to commit himself, Jocelyn finally gave the Union a complete proposal, as Thayer had re- quested Respondent had won the stnke, but it had lost business and money and had paid for its strike expenses Under the Act, Respondent was entitled to consider what it had suffered during the strike, take a hard look at its bargaining strength, and change its demands accord- ingly O'Malley Lumber Co, 234 NLRB 1171, 1179-1180 (1978), L W Le Fort Co, 290 NLRB 345 (1988) Once it determined that the Union had lost the strike, Re- spondent could capitalize on its new-found economic strength to "retrieve some of the economic benefits that it lost in the prior contracts" without violating the Act World Publishing Co, 220 NLRB 1065, 1071 (1975), enfd sub nom Omaha Typographical Union v NLRB, 545 F 2d 1138 (8th Cir 1976) "A strike is a two-edged sword Depending upon how it affects the employer's oper- ations, the strikers may gain concessions or they may lose concessions previously obtained" Hickmbotham Bros Ltd, 254 NLRB 96, 102 (1981) And Respondent had the nght to impose a deadline on the time that the Union had to accept it Barry- Wehmiller Co, 271 NLRB 471, 472 fn 7 (1984), J Hofert Co, supra See also Hen- drick Mfg Co, 287 NLRB 310 (1987) If Respondent had the right to retrieve what it had lost in prior negotiations and concessions it had earlier given and make changes in accord with what it learned aunng the strike, then its proposals, even if regressive, do not violate the Act To prove a violation of the Act, the General Counsel must show that Respondent's June proposals were "of such a nature as to warrant the con- clusion that they were intended to frustrate meaningful bargiumng " Pipe Line Development Co, 272 NLRB 48, 49 (1984) The ensuing negotiations, however, never fo- cused on Respondent's proposals Instead, Thayer, per- haps mindlessly or perhaps with much thought, because he had no solution to the problem posed by the abso- lutes, other than rejection, offered a counterproposal which, on the central issue of the absolutes, stated that the parties should discuss and negotiate them Jocelyn immediately made an issue out of Thayer's lack of a meaningful proposal after almost 2 years of negotiations He properly directed the negotiations to the original core of the parties' disagreement, the absolutes And there, in the summer of 1983, the negotiations remained The negotiators never began a full discussion of the new proposals, such as the reduced wage offer, the open shop, and all the other provisions that were arguably re- gressive As a result, I find no evidence that in offering them Respondent was motivated by bad faith or an intent to frustrate agreement Challenge-Cook Bros, 288 NLRB 387 (1988) Respondent exercised its right to use its eco- nomic muscle in good faith to make up for what he per- ceived were years of contractual strangulation Because there were no meaningful negotiations about the new proposals, I find no other evidence which proves that Jocelyn made the proposals vindictively or that Re- spondent was wedded to its entire offer Hickinbotham Bros Ltd, supra, 254 NLRB at 104, Barry- Wehmiller Co, supra, 271 NLRB at 473 Finally, there was no proof that Respondent's proposal, which it never wanted to make because it was convinced that the Umon would not agree to the issues that caused the strike, sidetracked the negotiations and caused the negotiations to be unsuccess- ful The negotiations had been unsuccessful for almost 2 years, without the June 1983 proposal Reliable Tool Co, 268 NLRB 101 (1983) The General Counsel also alleges a violation by re- peating what Thayer often said at the bargaining table, that Respondent's proposal had no chance of being ac- cepted by a self-respecting union, relying upon NLRB v Reed & Prince Mfg Co. 205 F 2d 131 (1st Or 1953), cert denied 346 US 887 (1953), Sweeney & Co, 176 NLRB 208, 212 (1969), modified 437 F 2d 1127 (5th Cir 1971) In Reichhold Chemicals, 277 NLRB 639, 640 (1985), the Board appeared to abandon any subjective evaluation of bargaining proposals "The Board will not attempt to evaluate the reasonableness of a party's bar- gaining proposals, as distinguished from bargaining tac- tics, in determining whether the party had bargained in good faith" However, the Board, on "further reflec- tion," concluded that the prior statement was "an impre- cise description of the process the Board undertakes in evaluating whether a party has engaged in good-faith bargaimng " Reichhold Chemicals, 288 NLRB 69 (1988) The Board continued Specifically, the quoted sentence could lead to the misconception that under no circumstances will the Board consider the content of a party's proposal in assessing the totality of its conduct during negotia- tions On the contrary, we wish to emphasize that in some cases specific proposals might become rele- vant in determining whether a party had bargained in bad faith The Board's earlier decision in this case is not to be construed as suggesting that this Board has precluded itself from reading the language of BROWN & SHARPE MFG CO 613 contract proposals and examining insistence on ex- treme proposals in certain situations That we will read proposals does not mean, how- ever, that we will decide that particular proposals are either "acceptable" or "unacceptable" to a party Instead, relying on the Board's cumulative in- stitutional experience in administering the Act, we shall continue to examine proposals when appropri- ate and consider whether, on the basis of objective factors, a demand is clearly designed to frustrate agreement on a collective-bargaining contract The Board's task in cases alleging bad-faith bargaining is the often difficult one of determining a party's intent from the aggregate of its conduct In per- forming this task we will strive to avoid making purely subjective judgements concemmg the sub- stance of proposals [Footnote omitted ] I find, therefore, that there is no legal justification for the allegation that Respondent engaged in surface bar- gaining because the Union, as a "self-respecting" union, could not accept the absolutes Whether Respondent pro- posed the absolutes to frustrate agreement would have been a viable argument had it been raised timely, but it is barred by my Ducane Heating ruling Whether the abso- lutes are "extreme proposals" is also barred by Section 10(b) If that issue were not barred, I would find that the provisions that would permit Respondent to transfer and assign employees are not uncommon in collective-bar- gaining agreements Furthermore, although the Union adamantly opposed them, it finally agreed to one of the mandatory transfer provisions proposed by Respondent The Union was also willing at one time to eliminate se- niority if Respondent would agree to the Union's job ranking proposal Under these circumstances, I find that the proposals are not "extreme" and that Respondent did not violate the Act by proposing them 4 1 The General Counsel makes two other arguments The first is that Respondent's offer was for a contract without a term That is an unfair and unwarranted characteriza- tion of what Jocelyn offered in June The Union's notes show that Jocelyn said that he "was not proposing [a contract duration] at this time" Respondent's notes state that Jocelyn thought that the contact duration "will depend on [the] contract" Jocelyn was obviously saying that, depending on the substantive terms of what the par- ties agreed to, he would propose a term of the contract For example, I understood him to mean that, if the par- ties agreed to one wage increase, 1-year agreement could be negotiated If they agreed on two increases, a 2-year term could be agreed upon In no sense did I understand that Jocelyn was proposing a single wage increase in a contract with no end 41 Jocelyn testified at some length about private conversation he had with some officials of the Union's International organization in September 1983 There was a move, behind Thayer's back, to settle the strike based on Jocelyn's June 25 offer, omitting the open-shop proposal A scheme was adopted to undercut Thayer, but all efforts failed when General Counsel Lubbers announced that he had authorized Issuance of a consoli- dated complaint This testimony tends to show that Jocelyn made his June 25 proposal not to frustrate agreement, but to obtain an agreement He was almost successful The second argument of the General Counsel, quoted in its entirety, is that "[W]hen the Union made a coun- terproposal it was completely rejected by the Respond- ent [and Respondent failed] to even consider the Union's proposal" I am not sure what this argument means The brief says nothing more—no citations of authority, no words of wisdom I do not even know how this relates to what Respondent is charged with Finally, I do not know what the General Counsel expected of Respond- ent If the expectation was that Respondent should im- mediately have made concessions, I have already reject- ed that notion The two major issues continued to the absolutes Al- though the Union finally gave in to the idea of mandato- ry transfers, it never agreed to Respondent's proposal on job preference Instead, Thayer offered a proposal for a massive revision of seniority principles which Respond- ent had rejected almost 18 months before I know of no reason that Respondent was required to pause before re- jecting what appeared to be a badly calculated offer or should not have had the immediate right to reject this proposal After all, it had analyzed the proposal fully a year and one-half year before Because of the lack of any legal support in the brief, apparently the General Coun- sel knows of no reason, either Finally, the exchange of proposals in mid-1983 represented an attempt by the Union to return to offers which had some validity when the Union had greater bargammg strength Now, the Union was weak and Respondent was capitalizing on that weakness and its strength The Act permits it to do so Rescar, Inc , 274 NLRB 1 (1985) B The Refusals to Furnish Information I have previously dismissed one allegation of the com- plaint alleging that Respondent refused to furnish the Union with certain information There are other similar violations which remain in the complaint On September 13, 1982, Thayer requested that Respondent supply him with copies of transfers normally supplied to the Union under the terms of the expired collective-bargaining agreement, copies of upgrading of employees, and copies of any letters of termination of employees in the units represented by the Union On September 21, 1982, Re- spondent notified the Union that a returning striker, who requested that Respondent not divulge his name, had been suspended for 10 days On September 24, Thayer demanded, among other things, the employee's name, which Jocelyn refused to give Jocelyn's refusal to supply that employee's name was consistent with his refusal to supply the names of any of the employees in the other documents that Thayer had requested A bit of historical perspective is warranted by letter dated March 1, 1982, the Union requested the names and addresses of all replacement employees Re- spondent, replying on April 6, 1982, declined to do so because it would create a "clear and present danger to the employees" The names and addresses of replace- ments are prsumptively relevant, and the Union does not have to particularize its need for such =formation Trumbull Memorial Hospital, 288 NLRB 1429 (1988), Bozzuto's, Inc , 275 NLRB 353 (1985), Georgetown Hoh- 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD day Inn, 235 NLRB 485, 486 (1978) However, when the Union filed an unfair labor practice charge based on this refusal Respondent argued before the Regional Director, and convinced him, that no complaint should issue be- cause the Union's picket line misconduct would lead to violence to and harassment of the strike replacements The Union's unfair labor practice charge in Case 1-CA- 19690 was dismissed, and the Office of Appeals affirmed that decision In response to the Union's letters m September 1982, Respondent initially refused to supply any of the infor- mation that the Union sought However, as part of an in- formal settlement of the Union's unfair labor practice charge, Respondent agreed to provide everything but the names of the employees The General Counsel now argues that the omissions of the names render the infor- mation useless and that, in any event, it is well estab- lished that there must be more than a speculative con- cern on Respondent's part, there must be a clear and present danger, citing Burkart Foam, 283 NLRB 351 (1987), enfd 848 F 2d 825 (7th Cir 1988), Safehte Glass, 283 NLRB 929, 948 fn 26 (1987) The General Counsel contends that Respondent pro- vided no evidence that the Union would harass the strike replacements I disagree Jocelyn testified to two mass demonstrations in which people were injured and prop- erty was damaged He testified to an explosion of a van He testified that Respondent twice brought injunction actions against the Union Respondent filed an unfair labor practice charge complaining of the violence, and the General Counsel issued a complaint alleging 28 sepa- rate incidents of 8(b)(1) conduct occurring from Febru- ary 4 to June 3, 1982 The conduct complained of ranged from threats of bodily harm to throwmg rocks and other projectiles to arson and detonating explosive devices and assault 42 The Union executed an informal settlement agreement of the charge While the settlement does not constitute a confession of liability, there was nonetheless enough proof to convince the Regional Director to issue a complaint This is a sufficient showing of harassment of and vio- lence against the strike replacements Most of the vio- lence took place at or near Respondent's facilities Some employees, however, were being harassed at their homes, and some employees were assaulted at places where they met to carpool The object was to stop current employ- ees from breaking the strike, and it is logical to infer that the Union was responsible At the hearing, the Union 42 On March 31, 1982, the state court found similar conduct committed since March 4 damage to automobilies, threats, threats of physical violence, broken windows, flying missiles One incident testified to, a six-inch boulder or stone was thrown through a window in an occupied vehicle There has been at least one fire, an attempt to block Ingress and egress in North Kingstown by throwing debris on the road, pound- ing on automobiles, nails in the highway, nails in tires And there is no question in my mind of the extent and the horribly violent nature of these facts, as I have determmed them to be The March 22 inci- dent was chaos, anarchy, danger to hfe, and a condition that a civil- ized society ought not be expected to endure Nonetheless, the court was unable to find that the Union was responsible for this conduct, despite its finding that Thayer was present at the picket line daily, a fact that may well have convinced the Board of the Union's liability neither denied that the violence occurred nor that it was responsible for the violence I find that Respondent had a reasonable basis for believing that the Union was fos- tering this violence There was, therefore, a clear and present danger that the Union would continue its illegal activities and a substantial reason for Respondent to withhold the names of current employees I will, there- fore, dismiss the complaint as it alleges that Respondent violated Section 8(a)(5) by refusing to reveal the names of current employees However, there was no showing that the Union com- mitted violence against employees who had been ternu- nated There was obviously an attempt to disrupt Re- spondent's business by preventing Respondent's employ- ees from reporting to work There would be little pur- pose for the Union to commit violence against those who were no longer working for Respondent and who were not reporting for work I, therefore, find no clear and present danger that the Union would take action against them and conclude that Respondent had no justification for witholdmg their names 43 I conclude that Respond- ent has violated the Act in this one respect C The Unilateral Changes I have recited various unilateral changes which consti- tute allegations of the complaint Because there is no evi- dence to the contrary, I credit Jocelyn's letter that stated that some of those changes had not been implemented There is still a legitimate claim of impropriety because his letter constituted a threat to violate the Act In addi- tion, I find that Respondent increased wages and other benefits on or before April 6, 1982, and implemented an interim wage increase on or about December 5, 1983 Fi- nally, on or about November 23, 1983, Respondent an- nounced that it was going to eliminate the early retiree health plan conversion plan effective on November 30, 1983 I have found above that the parties had reached an impass long before Respondent implemented these changes It is well settled that, when there is an impasse, an employer is free to change terms and conditions of employment as long as those changes were reasonably encompassed in its earlier rejected proposals, as they were here NLRB v Katz, 369 U S 736, 745 (1962), Western Publishing Co, 269 NLRB 355 (1984) The rule applies to all the prompasse proposals, even if no im- passe had occurred as to certain of the proposals which were implemented Western Publishing Co, supra The only facts presented which may distinguish this proceeding from the ordinary one is that certain of the implemented proposals had earlier been withdrawn I find no cogent reason that Respondent should not be permitted to do exactly what it did The Union had the opportunity to accept a contract containing all the pro- posals that Repsondent later implemented The Union had the opportunity to discuss each of these proposals and to persuade Respondent to offer a contract more to 43 By November 18, 1982, Respondent had agreed to settle the portion of Case 1-CA-19958 relating to many of the Union's demands for infor- mation and had given It the names of the employees who had been sus- pended or terminated BROWN & SHARPE MFG CO 615 the Union's liking It ultimately decided that Respond- ent's proposal was insufficient The impasse continued, and Respondent was entitled to withdraw its offer, was under no duty to propose a different proposal, and could make changes in working conditions so long as they did not exceed what it had previously offered to the Union J Hofert Co, 269 NLRB 520, 520-522 (1984), Taylor- Winfield Corp, 225 NLRB 457, 463 (1976) For the same reasons, Respondent did not violate the Act when it granted the interim wage increase in December 1983 The Union had agreed to that wage increase more than a year before, Respondent had made no better offer in the interim, and the amount of a wage increase was never an issue that separated the parties The last unilateral change complained of was Re- spondent's proposal to eliminate the health insurance for retirees, a proposal which Respondent had discussed with the Union as early as July 12, 1983, and at four later negotiating sessions The Union consistently refused to assent to this kind of relief unless it was a part of a total settlement of the strike Because of the Union's po- sition, the parties were once again at an impasse, and Re- spondent was entitled to do what it did An even more compelling reason is that Respondent, while agreeing to talk about the issue, relied upon and never waived its rights under Chemical Workers v Pittsburgh Glass, 404 U S 157 (1971) That holds that the bargammg obliga- tion does not extend to the benefits of former employees who have retired Respondent's brief represents that its proposal affected only then retired employees I am not convmced that this is wholly correct However, to the extent it is, I conclude that Respondent did not violate the Act by unilaterally changing benefits when it had no obligation to bargain and the persons who were affected by the change were not employees within the meaning of the Act Finally, Jocelyn raised both the interim wage increase and the retirees' benefits issues throughout November 1983 and offered to bargain about them before imple- mentmg his proposals It was Thayer who repeatedly re- fused to negotiate about these changes unless all strikers were first reinstated Accordmgly, I conclude that Re- spondent never refused to negotiate about the implemen- tation of these proposals, as the complaint alleges D Condition for Reinstatement of Strikers Commencing in mid-July 1982 Respondent condi- tioned the reinstatement of strikers upon their taking and passing a physical examination The complaint alleges that commencing November 1, 1983, Respondent's con- dition violated the Act Again, the General Counsel's brief contains no supporting legal argument or citations I find that under past practice Respondent conducted physical examinations of employees who returned from absences covered by Workmen's Compensation benefits or leaves of absence exceeding 2 weeks By November 1983 the strike was more than 2 years old Because the requirement for physical examinations applied to all em- ployees after they had been absent from Respondent's employ for 2 weeks, Respondent's attempt to impose the requirement on returning strikers did not amount to treating them as new employees Thus, it was not an ille- gal condition for their reinstatement I find no violation Aztec Bus Lines, 289 NLRB 1021 (1988) 44 E The Conversion of the Strikers I have found that Respondent committed a single unfair labor practice of refusing to give to the Union the names of employees who were discharged The record is barren of any suggestion that this conduct had any rela- tionship to the continuation of the Union's strike Fur- thermore, the Union never mentioned Respondent's re- fusal to its members I conclude that the strike continued solely because the Union could not reach an agreement with Respondent and was attempting to exert economic pressure to obtain an agreement containing more favor- ble terms than what Respondent offered it At no time was the strike converted into an unfair labor practice strike V THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respond- ent described in section II, above, have a close, mtunate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof VI THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist therefrom and post an appropriate notice Because Respondent gave the Union the names of the discharged employees in 1982, no affirmative remedy is warranted [Recommended Order omitted from publication ] "Respondent contends that in March 1982 It proposed to conduct physical examinations of its employees at any time Because the Union rejected that proposal, Respondent argues that it was entitled to Imple- ment it However, Respondent never gave the Umon notice that it in- tended to implement this proposal, and there is no proof that the proposal was ever implemented In addition, there was no showing that this provi- sion was applied to any employees except returning strikers I reject this defense