Associated Grocers

ASS()OCIATE I) GROCERS Associated Grocers and Transport and Local Deliv- ery I)rivers, Warehousemen and Helpers, Local Union No. 104, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Cases 28 CA-4911, 28-CA-5091, and 28-CA-5153 October 14, 1980 DECISION AND ORDER By CHAIRMAN FANNING AN) MEMBERS JENKINS ANI) PENI I.O On December 20. 1979, Administrative Law Judge James M. Kennedy issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, find- ings,2 and conclusions3 of the Administrative Law Judge only to the extent consistent herewith. As more fully set forth by the Administrative Law Judge, the principal issue is whether Respond- ent violated the Act when, in response to substan- tial strike misconduct, it required returning strikers to take a polygraph examination and, if so, whether that conduct prolonged the strike, thereby convert- ing it to an unfair labor practice strike. If not, there are still questions whether Respondent violated the Act by failing to reinstate strikers properly at the conclusion of the strike, or by failing to meet its bargaining obligation thereafter. The General Counsel has excepted to the Administrative Law Judge's dismissal of the entire complaint. We agree with the Administrative Law Judge, for the reasons stated by him, that Respondent did not engage in surface bargaining. However, con- trary to the Administrative Law Judge, we find for reasons set forth below that not all the strike re- placements were permanent, and that Respondent J Respondeit has requested oral argument Ihe request is hereby denied as the record, the exceptions, and he briefs adequatey present the issues and the positions of the parties I Respondent has excepted to certain credibility findings made h the Administrative Lass Judge. It is the HBoard's established policy not to) overrule an adiinistrative las" judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con. vinces us that the resolutions are incorrect. Standard Dry Wabl Prnxlucts. Inc., 91 NRB 544 (1950)11 enfd 188 F2d 362 (3d Cir 1951) We have carefully examnirldl thie record anli find no basis for reversing his fidings :' In agreeling with the Adniist rative l.aw Judge's conclusion that Re- spoiden did not hodalte Sec (a)(5) of the Act h unilaterall c hitig lg the probatin periodl from W6) tio ) days. suc rely ornls Oil h finldilgsl hal the charge was hbarred bh Sec tIlh) 253 NLRB No. 5 violated Section 8(a)(5) of the Act by unilaterally establishing the unit position and wage rate for cashiers. Also, contrary to the Administrative Law Judge, we find that Respondent violated Section 8(a)(3) by refusing to reinstate economic strikers and by requiring strikers to either incriminate themselves and others for, or prove their innocence of, both strike-related and nonstrike-related miscon- duct, as a condition of reinstatement. Nonetheless, we agree with the Administrative Law Judge's conclusion that the economic strike was never con- verted to an unfair labor practice strike because there is no evidence that Respondent's violations of the Act, discussed below, prolonged the strike. 1. The facts as found by the Administrative Law Judge do not support his conclusion that as of May 10, 1978, 4 all strike replacements were hired as per- manent employees. The more than 1,000 replace- ments hired during the April 12 to October 4 strike signed a statement acknowledging that their em- ployment was temporary. On May 10 all then cur- rent employees received a letter from Respondent's president, Nichols, advising them that they had been hired as permanent employees entitled to company benefits after a 90-day probationary period. Between May 10 and May 18, 237 employ- ees signed an acknowledgment at the bottom of the letter. However, because of a communication fail- ure between Nichols and his personnel managers, replacements hired after May 10 received and signed only the original statement acknowledging temporary status. As regards replacements hired on or before May 10, the Administrative Law Judge concluded that Nichols "intended to clarify, or at least convert, all replacements to permanent status," a finding with which we agree. In finding that all strike replace- ments hired after May 10 were permanent, the Ad- ministrative Law Judge reasoned that President Nichols' May 10 letter carried more weight than the hiring slips solicited by the personnel office, and concluded that "as of May 10 Respondent's policy with respect to the hiring of strike replace- ments was to treat them as permanent employees except to the extent that they failed to complete the probationary period." For reasons set forth below, we disagree. Permanent replacement of strikers in order to continue business operations is a legitimate business justification for refusing to reinstate economic strik- ers upon appropriate application. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1939). However, it is an affirmative defense and Respondent has the burden of proof. N.L.R.B. v. ' All dales are in 197X unless otherwise indicated 31 DECISIONS ()F NATIONAL IAB()R RELATIONS OARD Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); W. C. McQuaide, Inc., 237 NLRB 177 (1978); National Fresh Fruit and Vegetable Company and Quality Banana Co., Inc., 227 NLRB 2014 (1977), enforce- ment denied on other grounds 565 F.2d 1331 (5th Cir. 1978). Here, the burden was satisfied only with respect to the 237 employees who signed the May 10 letter acknowledging permanency. Each of those 237 employees and Respondent had a mutual understanding and commitment on the permanent nature of their employment. Conversely, replace- ments hired after May 10 acknowledged that their employment was temporary and received no assur- ance that their employment was permanent. The permanency of the post May 10 replacements was established only in the mind of Respondent's presi- dent, a showing insufficient to satisfy Respondent's burden. Covington Furniture, 212 NLRB 214, 219- 220 (1974); cf. Superior National Bank and Trust, 246 NLRB No. 123 (1979). The Union made appropriate application on behalf of the strikers in its October 4 mailgram to Respondent, unconditionally offering to return to work. Respondent refused to take back all of the strikers immediately since it maintained that all re- placements were permanent. Economic strikers must be reinstated upon appropriate application, absent a legitimate business justification which can include permanent replacement. Mackay Radio, 304 U.S. 333. As the Administrative Law Judge found that the strikers had been permanently replaced, he found Respondent's refusal to immediately reinstate strikers justified. However, as set forth above, we do not agree that all strike replacements were per- manent. Thus, by refusing to reinstate on and after October 4 those economic strikers who had not been permanently replaced, Respondent violated Section 8(a)(3) and (1) of the Act. 2. The Administrative Law Judge concluded, in agreement with Respondent, that the magnitude of strike violence and misconduct here justified Re- spondent's use of a polygraph. However, this busi- ness justification crumbles when all the relevant facts are considered. Substantial misconduct had occurred early on in the strike. Respondent produced business records, kept for insurance purposes, that show that be- tween April 12 and June 5 there were 64 incidents involving property damage, 33 involving harass- ment, and 14 involving assaults, batteries, or other risks to people. Relying on these records to show its state of mind, that it feared that a striker might return to work and vandalize the Company from within, Respondent claims that its June 5 institution of a polygraph test, as part of a standardized proce- dure for reinstating strikers, was justified. That procedure required that the callers be routed to Cooksey, the vice president in charge of oper- ations, or to specified individuals during Cooksey's brief absences. If callers did not express a desire to return, they were given a brushoff. If the caller ex- pressed a desire to return, then three questions were asked: (1) Are you abandoning the strike? (2) Are you offering to come back unconditionally? (3) Will you abide by the result of a polygraph test? A test was scheduled for everyone who answered af- firmatively to all three questions, others were told nothing was available. The polygraph examination reports reflect that once a striker submitted to the polygraph examina- tion, his involvement in strike misconduct was greatly diminished in importance. Thus, of the ap- proximately 40 questions asked in the polygraph examination, only a few had any connection to the strike. Rather, strikers were questioned, inter alia, about whether they ever engaged in a work slow- down, falsification of industrial accident claims, suspicions about co-workers' involvement in non- strike- related company misconduct, and theft of company property. Respondent in effect conditioned a striker's rein- statement on a response to any type of question, and in some cases requested signed "confessions." These incriminating questions regarding the em- ployment relationship went far beyond the realm of strike misconduct, yet only strikers were required to answer them. Respondent has offered no justifi- cation for imposing these wide ranging questions only on strikers. We conclude that Respondent pe- nalized strikers for their support of the strike by requiring as a condition of reinstatement that they take a polygraph test to prove their innocence of both strike-related and nonstrike-related miscon- duct, in violation of Section 8(a)(3) and (1) of the Act. 3. The Administrative Law Judge dismissed the General Counsel's allegation that Respondent un- lawfully removed the position of "cashier" from the cash-and-carry bargaining unit without bargain- ing, finding that Respondent had no obligation to bargain about the cashiers since they were supervi- sory or managerial employees. Moveover, the Ad- ministrative Law Judge noted that removing non- unit employees from the cashiering function cre- ated unit positions and found that Respondent had offered to bargain over these new positions, but that the Union had not pursued the matter. The General Counsel excepts and contends that cashiering had always been performed by unit em- ployees, and that Respondent's presentation of a new "cashier" job description and any offer to bar- gain was after the change had been affected. We 32 ASSOCIATED GROCERS find merit in the General Counsel's exception al- though we need not decide whether cashiering was removed from the bargaining unit. Rather, we find that Respondent violated Section 8(a)(5) and (1) by unilaterally establishing, and setting a wage rate for, the bargaining unit's cashier position.5 Thus, the cash-and-carry contract covered all employees except managers, and had job descriptions for "reg- ular employees," "casual employees," "truck- drivers," and "working foremen," but not for "cashiers." Further, union negotiator Lock testified that while Respondent's job description for "cash- ier" paralleled what unit employees actually had done, it was not offered until after the change had been effected. In this regard Lock testified that at the last negotiating session on November II he first learned that a new job classification of "cashier" was currently being performed by recently hired employees at a wage rate lower than any specified in the contract. 6 4. We find that the Union knew of the elimina- tion of produce packagers' jobs by June 1, 1978. The Administrative Law Judge concluded that Saunders, Respondent's chief negotiator, "prob- ably" informed Union Representative Lock at the June I bargaining session that the produce packag- ers' jobs were being eliminated. In fact, Saunders testified that at the June I session he had told Lock that employees whose jobs were being eliminated, like those of the produce packagers, could not return to work. Further, Lock did admit that on June 1 Saunders informed him that some jobs were being eliminated from the unit. Hence, the Decem- ber 1978 charge is barred by the 6-month statute of limitations in Section 10(b) of the Act. According- ly, on this basis we agree with the Administrative Law Judge's dismissal of this aspect of the com- plaint. 5. We agree with the Administrative Law Judge's conclusion that Respondent did not violate Section 8(a)(5) when it resumed administering in- In finding a violatlrn, Member Penello notes Ihai the cashier piosmon was created before the filing of a decertification petition in the cash-and carry unit. 6 In agreement with the Administrative Law Judge. Chairman Falnning finds that division cashiering was historically performed by manaigerial employees. Cash-and-carry manager Pachello unequls, ocally testified that managers were relieved of cashiering duties when "cashiers" 'Aere added to the cash-and-car y operation He also agrees that Respondent gave the Unl in ample opportunity to) bargain over the new posiilOn he record establishes that bargaining hbogged down and n sessions s"ere held fromt June I to September 28 Further. lock admitted that historically mostl of the warehouse unit contract as incorporated into the cash-and-carrs contract at the conclusionl lf negotiations, and that the first firrmal dis- cussion of the cash-and-carr) prroposals was held n November I llhus. Respondent made a bona fide offer Io bargain aholt the cashicr piitl(lll in No ember In due curse of the negotiations, hbt the tniolr hoc file a charge instead of hbargaining In agreeing silh the Adnililirlatlise Law Judge's dismissal of this allegation. Chairman Farnnrig find, it un- inecessary it) rely o the Adnliil tratis c Law Judge's aIlernali c filltrig that Respondent had no iobligaltin to bargain at the time. dustrial vehicle tests in January 1979, a preexisting practice disrupted by the strike. We also agree that the record does not sustain the General Counsel's allegation that Respondent conditioned its contract settlement upon the Union's acquiescence to the re- moval of certain warehouse work from the unit. Union representative Lock testified that he learned in October 1978 from Saunders that new clerk po- sitions were created. Although the Company claimed, contrary to the Union, that these positions were outside the bargaining unit, it furnished the Union with job descriptions and the positions were the subject of negotiations. Thus, as the Adminis- trative Law Judge found, Respondent gave the Union full opportunity to bargain over the topic. In adopting these conclusions we find it unneces- sary to rely on the Administrative Law Judge's al- ternative analysis that Respondent had no obliga- tion to bargain at that time. CoNcI.UsiONs oi LAW I. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By unilaterally establishing a position and wage rate of cashiers on or before November 14, 1978, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 4. By requiring strikers as a condition of rein- statement during the strike, to take a polygraph test to prove their innocence of both strike-related and nonstrike-related misconduct, and by refusing to re- instate economic strikers who were not permanent- ly replaced on October 4, 1978, the date of their unconditional offer to return to work, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The economic strike which commenced on April 12, 1978, was not prolonged or converted to an unfair labor practice strike by virtue of the aforesaid unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not engaged in all other unfair labor practices alleged in the complaint. THI- RElNII)Y As Respondent has been found to have engaged in unfair labor practices, we shall recommend that it take specific action, as set forth below, designed to effectuate the policies of the Act. 33 DECISIONS OF NATIONAL IAB()R RLA'IIONS O()ARD Having found that Respondent refused to rein- state on and after October 4 those economic strik- ers who had not been permanently replaced, we will order that Respondent immediately reinstate all employees who struck and have not been per- manently replaced to their former jobs or substan- tially equivalent positions, without prejudice to their seniority or other rights or privileges previ- ously enjoyed, and that it make whole such em- ployees for any loss of earnings resulting from its failure to reinstate them since October 4, computed in accordance with the formula stated in E W Woolworth Company, 90 NLRB 289 (1950), and with interest in accordance with Florida Steel Cor- poration, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Those employees for whom no employment is available shall be placed on a preferential hiring list for employment as positions become available, and before other persons are hired for such work. Pri- ority for placement on such list is to be determined by seniority or some other nondiscriminatory test. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). Having found that Respondent discriminated against strikers by requiring as a condition of rein- statement during a strike that they take a poly- graph test to prove their innocence of both strike- related and nonstrike-related misconduct, we shall order Respondent to cease and desist from such practices and to make employees whole for any losses they may have suffered as a result of such unlawful conduct. Having found that Respondent unilaterally estab- lished the bargaining unit position and the wage rate for cashiers, we shall order Respondent to cease and desist from unilaterally establishing bar- gaining unit jobs and wage rates. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Associated Grocers, Phoenix, Arizona, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Unilaterally establishing wages and positions in the bargaining unit. (b) Refusing to accord strikers who were not permanently replaced as of October 4, 1978, rein- statement rights to which they are entitled as eco- nomic strikers. (c) Discriminating against strikers by requiring, as a condition of reinstatement during a strike, that they take a polygraph test to prove their innocence of both strike-related and nonstrike-related miscon- duct. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Bargain upon request about the bargaining unit position and wage rate for cashiers. (b) Reinstate strikers who have not been perma- nently replaced to their former jobs or, if such po- sitions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make such employees whole for any loss of earn- ings resulting from its failure to reinstate them since October 4, 1978, with interest computed in the manner set forth in the Remedy section of this Decision. Employees for whom no employment is available shall be placed on a preferential hiring list, based upon seniority or some other nondiscri- minatory test, for employment as positions become available and before other persons are hired for such work. (c) Make employees whole, with interest, for any loss of pay suffered as a result of the discriminatory polygraph tests. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its warehouse and cash-and-carry facilities in Phoenix and Tempe, Arizona, copies of the attached notice marked "Appendix. "7 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall he taken by Re- spondent to insure that said no' cs are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this II the even I hat t hil Order i nflirced hby a Judgment of a :li tll States Co urt of Appeals. the w ird In the litlcc reading i"( itcd h Order of the National abor Relatiol Boaril" hall read "Posted l'ursu ant to a Judgment f Iht illnitd States COlurt of ppeal, tLih rclilg an ()rdcr of the National Labor Rlatiolln lloard" 34 ASS()CIAT1 D) (;RK(OCRS Order, what steps the Respondent has taken to comply herewith. APPENDIX No iici To EN1'i OYi ES POSILtI) Y ORIDER Of it NA TIONAI LAHOR RrI AIIONS BOAR) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WFE wii.I. NOt' unilaterally establish wages and positions in the bargaining unit. WE Will NOI refuse to accord strikers w·vho were not permanently replaced as of October 4, 1978, reinstatement rights to which they are entitled as economic strikers. Wl. WIl.. Nr discriminate against strikers by requiring them, as a condition of reinstate- ment during a strike, to take a polygraph test to prove their innocence of both strike-related and nonstrike-related misconduct. W- Wtll. NOT ill any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by section 7 of the National Labor Rela- tions Act. WI Wil. bargain upon request about the bargaining unit position and wage rate for cashiers. WE wiil.i. reinstate strikers who have not been permanently replaced to their former jobs or, if such positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights or privileges pre- viously enjoyed, and wE Wii.I make such em- ployees whole for any loss of earnings result- ing from our discrimination against them, plus interest. WE WIL. place employees for whom no employment is available on a preferential hiring list, based upon seniority or some other nondiscriminatory test, for employment as jobs become available. Wt. wt I make \whole, with interest, em- ployees who have suffered a loss of pay as a result of the discriminatory polygraph tests. ASSo() IA t ) GROC.RS DECISI()N Sr IAII Nil N O( I ll C SI Jsivi.s M. K NI m , Administrative Law Judge This case came to hearing before me in Phoenix, Arizona, on 12 days het.eccn March 19 and April 15, 1979, pursuant to three complaints issued by the Regional Director for Region 28. ultimately consolidated on February 7, 1979, and which are based on charges filed by Transport ad Local Delicry Drivers. Warehousemen and Helpers, I.ocal Union No. 104, an affiliate of the International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, herein called the Union, on June 20, October 27, and December 19. 1978,' respee- tively. The complaints, as amrended, allege that Associalt- ed Grocers, herein called Respondent, has engaged in certain violations of Section 8(a)(I). (3), and (5) of the National l.abor Relations Act. as amended. herein called the Act. Issues The principal issue is whether or not Respondent vio- lated the Act when il response to a violent strike it re- quired. during the course of the strike, returnees to submit to a lie detector test. If so, did that conduct pro- long the strike and thereby convert it from an economic to an unfair labor practice strike' If not, did Respondent violate the Act by failing. at the end of the strike, to properly reinstate strikers and did it thereafter fail to meet a bargaining obligation independent of any previous conduct? All parties were given full opportunity to participate. to introduce relevant evidence, to examine and cross-ex- amine witnesses. to argue orally, and to file briefs. Excel- lent briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. The Union filed a statement adopting as its own the posi- lion taken by the General Counsel. Upon the entire record 2 of the case, and from my ob- servation of the witnesses and their demeanor. I make the following: FINI)IN(S OF FAC [ 1. RSPONI)I.N'I S HBUSINISS Respondent admits it is an Arizona corporation en- gaged in the wholesale grocery business and having its headquarters in Phoenix. It further admits that during the past year, in the course and conduct of its business. it has : All d(,te. hCeret Icfcr to I17K unLIICn I)lhcr ,, dicaltcd Errors in I1hc trancripr l harc bhen inoted and i corrcctlcd DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchased and received goods and materials valued in excess of $50,000 from suppliers outside Arizona. Ac- cordingly, it admits, and I find, it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOI.VED Respondent admits, and I find, the Union to be a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Participants and Relevant Bargaining Chronology Respondent is a large wholesale grocer operating a warehouse in Phoenix which employs over 400 people. At that facility it receives and distributes groceries, meats, and other items to its grocery store customers, most of whom are members of the AG cooperative. It also operates four so-called "cash-and-carry" outlets in the Phoenix area. These are smaller warehouse oper- ations to which customers may come with their own trucks and purchase products for resale. One is located within the main warehouse facility, two are elsewhere in Phoenix, and the fourth is in Tempe. The Union has represented a large number of Re- spondent's warehouse work force since 1950. In general, the job classifications covered by its past collective-bar- gaining contracts include warehousemen, freezer room men, warehouse laborers, truckdrivers, repackmen, truck servicemen and mechanics, working foremen, leadmen, and fresh produce packagers. It did not include janitors and pallet repair employees, nor the maintenance me- chanics, all of whom are tangentially involved in this dis- pute. Also, not included in the warehouse bargaining unit were certain business office employees and, apparently, meat cutters. The Union did, however, represent, in a much smaller, separate bargaining unit, employees of the cash-and-carry facilities, recently less than 10. In addi- tion, the Union represented drivers located at Respond- ent's Baird's Bakery Division. Besides representing a large number of Respondent's employees, the Union also represents the warehouse em- ployees of several other grocery chains in the Phoenix area. These include El Rancho (Arden-Mayfair); Safeway Stores, Inc.; A. J. Bayless Markets, Inc.; Fry's Food Stores; Alfred M. Lewis, Inc.; S. E. Rykoff and Co.; and Continental P. M. Foods. The collective-bar- gaining agreements which the Union had with all of these employers expired on March 1, 1978, though the Union had earlier sent its reopener notice to Respondent on December 15, 1977, and apparently to the others as well. Respondent and most of the others retained Arizona Employers Council as their professional negotiator, spe- cifically utilizing the services of the Council's Ed Saunders. Their use of a single negotiator, however, should not be construed as multiemployer bargaining, al- though each observed the other's negotiations with the Union. The Union's principal negotiators were Assistant Business Agent Anthony "Tony" Lock and Secretary- Treasurer Horace Manning. On January 4 the Union sent Respondent its first pro- posal covering the warehouse agreement. Following their past practice, the cash-and-carry contract was set aside to be dealt with after the warehouse agreement was settled. At approximately the same time the Union de- manded recognition in a separate unit of janitors and pallet repairmen as well as a group of maintenance me- chanics. At the January 9 meeting Respondent granted recognition to the Union with respect to the janitors and pallet makers. Respondent declined to recognize it in the maintenance mechanics unit as it contended the refrigera- tion specialists should also be included. Respondent of- fered to recognize the Union as the representative of that slightly larger group as soon as the Union could demon- strate its majority status-the Union appears to have been short by one authorization card. On January 27 negotiations over the warehouse con- tract commenced. In addition to Respondent's group consisting of Saunders, AG's vice president in charge of operations, William Cooksey, and its executive vice president in charge of dry grocery operations, Don King, representatives of the other grocery chains also at- tended. Their presence caused some consternation among the union bargaining committee as the Union did not wish to engage in multiemployer bargaining. Saunders took the position that the representatives of the other firms were there only as observers. The Union, not then wishing to disrupt bargaining, made no objection and began discussing the 31 proposals submitted on January 4 as well as a 32d proposal. As the General Counsel has stipulated that Respondent engaged in no bad-faith bar- gaining until May 17 there is no point in detailing all that happened during the 10 meetings preceding May 17 except to the extent that some matters have relevance to the issues raised in the complaints. At the January 27 meeting, typical of first meetings, the parties went through each of the proposals and Saunders admitted to being "generally disagreeable" but made no specific counterproposals. : . During that meeting one of the Union's proposals was to prohibit Respondent from requiring employees or applicants for employment to take a polygraph test. By way of background on that topic, it should be observed that Respondent had begun polygraphing applicants for employment in April 1977 as well as polygraphing individuals who were being pro- moted from hourly to salaried or supervisory status. There is also testimony that Respondent, to investigate malfeasance, had polygraphed current employees on a "request" basis occasionally during 1977. The General Counsel disputes that testimony, but only in vague terms; indeed, the testimony of Respondent is nearly as vague. With respect to the topic, Saunders asserted that the Union had no right to bargain on behalf of applicants for employment; the Union voiced no disagreement with that proposition. ' No dtoubt ypical "opelling day hbombar," a phrase used hb the IBoard irl Rlrno Puper Product (orp.. 220 NLRIJ 51' 524 11975). to de- scribe a colnllon first day tactic hich is usually discoultablc im tellms evaluating the totality of bargaining 36 ASS)CIATED GROCERS Another proposal related to a wage demand for the produce packagers (i.e., potato baggers). Lock concedes that the Union's proposal would have more than doubled the seven potato baggers' pay. He recalls Saunders asking why the Union wanted such a high rate hen that would simply put Respondent out of the produce packing business and put those employees out of work. Lock replied their rate had caused a lot of difficulty as they worked in such close proximity to people earning higher rates, since they were part-time and did not have the same fringe benefits as the full-time employees, and because it was a constant source of irritation. On February 6, following a meeting regarding the maintenance mechanics, the parties again discussed the main warehouse agreement. As Respondent had invited observers from the other firms the Union refused to con- tinue the meeting. Each side accused the other of engag- ing in a refusal to bargain and each filed appropriate charges with the Board's Regional office. Between that date and March 29 no meetings occurred relating to the warehouse contract although the parties did discuss and bargain over the maintenance mechanics, the janitors, the pallet repair employees, and the drivers' seniority rules. Agreement in principal was reached on the drivers' se- niority rules, although they were subject to later modifi- cation. On March 23 the parties met again, the Union's charge against Respondent having been dismissed and a complaint having been authorized against the Union for refusing to meet with Respondent and its observers. With respect to the March 23 meeting, Lock testified that in the process of "paring down" its proposals the Union agreed it had no right to negotiate on behalf of employment applicants and therefore dropped its demand with respect to polygraphing them. He recalls "the Com- pany" saying that it would not force an employee to take the polygraph, but wanted the right to keep it available upon request. They agreed it had not been a problem in the past. Except for the date, Lock's testimony here is consistent with that of Respondent's witnesses Saunders, King, Cooksey, and A. J. Bayless' James Naber. They testified that the only time polygraphs were mentioned during bargaining was on January 27. It may simply be that either Lock or Respondent's group is mistaken with respect to the date the Union's concession on the point occurred. On March 29 Respondent made its counterproposals and further meetings were held on April 4, 5, and 6-7, the last being a marathon bargaining session in an at- tempt to reach an agreement before the Union's strike deadline. As a result of the marathon session of April 6-7, Re- spondent and the other companies formulated what came to be known as the April 7 proposal. The Union's offi- cials took that proposal to their membership on April 9 but it was rejected. Between April 9 and 12 no meetings were conducted though some inconsequential informal conversations between Saunders and the union officials occurred. On April 10 Respondent issued a memo to its employ- ees regarding the rights of strikers. Two of the topics discussed in the letter are pertinent here. First, in one paragraph entitled "Who May Work?" Respondent ad- vised that if employees who were union members wished to work instead of strike they were free to do so, but: the union members should turn in their union cards first. This is necessary because members of the union have agreed to abide by union decisions. The U.S. Supreme Court in 1974 upheld fines up to $6,000 imposed by the IBEW on hourly and sala- ried members who crossed picket lines to work at Florida Power & Light. In order for a union member to come to work without being subject to a union fine, he or she should turn in the union card prior to coming to work. Members may do this by mailing the card registered, return receipt request- ed, to the union hall. Second, under the heading "Seniority-Is It Affected?" Respondent stated that employees who work during the strike will continue to accrue seniority but "Strikers will not accrue seniority during the strike. However, they will not lose the seniority they acquired prior to the wal- kout." In addition, the letter described the right of an employer under the law to replace economic strikers in order to continue operating its business. Although a number of the employees testified they did not see the letter, it is clear that many did. Most likely those who say they never saw the memo simply failed to read it for it was distributed to them with their pay- checks. On April 12 the strike began at three of the firms in- volved, Respondent, Alfred M. Lewis, and Safeway. Of Respondent's approximately 400 warehouse and cash- and-carry employees, nearly all struck; the parties stipu- lated that 36 did not. In addition, it appears that unrepre- sented employees also remained at work. In response to the strike, Respondent began hiring replacement employ- ees. The Union struck A. J. Bayless and El Rancho on April 14 while on April 19 it obtained a settlement from Fry's Food Stores which had not been struck. On May 5 the first bargaining session after the strike began was conducted. During that meeting Saunders spoke on behalf of all the companies present and made a settlement proposal for all except Respondent saying Re- spondent had several areas requiring further discussion. Another meeting was held on May 10 under the auspices of the Federal Mediation and Conciliation Service. At that meeting Respondent continued to offer the April 7 proposal with respect to noneconomic matters and the April 7 proposal insofar as economics were concerned but without the retroactivity offered by the other firms. On March 23 the parties had extended the agreement until economic activity was taken. Also on May 10 Re- spondent advised it did not intend to pay the May health and welfare premiums because the employees were not at work; however, Saunders did agree to check with the Trust regarding Respondent's obligations. He also said the maintenance of benefits dates needed to be changed to June 1. Another meeting was held on May 15 at the FMCS office. Lock described it as a rehash of the May 10 meeting. He remembers Saunders saying there might 37 D3tCISIONS O(F NATIONAI. I.A()OR RELATI()NS H()ARI) be trouble on the back-to-work provisions for Associated Grocers. On May 17 a third FMCS meeting was held, Repre- sentatives of all the other companies were present. Saunders, speaking on behalf of all the employers, con- tinued to insist upon the April 7 proposal. It appears that the Union was continuing to insist, as it had in previous meetings, that an additional 10 cents per hour be added to the first year wage package (it was willing to move the effective date by several months). In addition, the Union demanded that all the strikers be returned to work immediately upon ratification of the agreement. Accord- ing to Saunders, Lock said the strike would continue unless the 10 cents was added to the proposal. Saunders recalls Union Negotiator Bill Grami (a western confer- ence of Teamsters representative who had recently joined the union bargaining team) "subtly" 4 suggesting that the strike would be extended to the California oper- ations of Lewis and Safeway if the dime was not added. Saunders recalls telling Grami that perhaps the Union could shut down those companies on the Coast but it would make no difference to Respondent or A. J. Bay- less, who were Arizona companies. All five companies continued to maintain their April 7 posture. There were some slight modifications: Moving the effective date of the dental changes; accepting the re- tiree health and welfare plan; and agreeing to pay the May health and welfare if the employees ratified the agreement and returned in May. The only difference be- tween Respondent's contract proposal and that of the other four firms was that Respondent refused to pay ret- roactive wages during the extended contract asserting re- troactivity had been conditioned upon settlement of a contract without a strike. As that condition had not been met, Respondent would not make those payments. AG also said it would not pay the May health and welfare premiums. With respect to the back-to-work issues El Rancho, Safeway, and A. J. Bayless agreed to take all strikers back; Lewis agreed to do so as well except for four named employees who had been accused of shooting trucks on the highway. When Grami learned of Lewis' opposition to their recall he again threatened to shut that firm down in California and Nevada. Respondent's back-to-work position was significantly different from that taken by the other firms. Both Saunders and Lock testified in detail respecting this topic. They agreed Respondent's position was: (1) Strik- ing employees had been replaced and the replacements would remain if they were performing their duties prop- erly; (2) returning strikers would be required to go through the normal process of reapplication and would be returned by seniority groups as needed and they may or may not be accepted, but if rehired they would retain their seniority; (3) when a returning striker was recalled he would be assigned a job and shift within his seniority group and within 4 months of the strike settlement Re- spondent would institute a rebid permitting returned strikers to bid for their old jobs. (If a striker had not yet been recalled he would not be eligible to participate in 4Saunders was being sarcastic. the rebid.) Tnesc procedures, according to Company es- timates, meant that approximately half of the work force would be able to return within 30 days after contract ratification. At this point there is a dispute between ock and Saunders regarding further clarification of these propos- als. Lock testified he asked Saunders if returning strikers had to go through the reapplication procedure whether they would be required to take polygraph and physical examinations. He says, after consulting with King and Cooksey Saunders replied, "it's part of the rehiring pro- cedure." Lock says he then told Saunders the Union would recommend rejection of Respondent's proposal to its membership because there was "no guarantee that anybody would go back to work." Contrary to Lock, Saunders testified that although he was ready to answer questions relating to polygraph 5 and physical examinations, neither Lock nor any union official raised the question about what "hiring proce- dures" meant and the polygraph was not discussed at all. His testimony here is corroborated by King, Cooksey, and A. J. Bayless' Naber. Lock's notes, while reflecting in detail the specific back-to-work proposals, are silent regarding any clarification; there is no mention of either physical or polygraph examinations. After listening to the proposals of all five firms Lock advised they would present the Bayless proposal to its membership without a recommendation and would pres- ent the Lewis, El Rancho, Safeway, and Associated Gro- cers proposals with a recommendation to reject. On May 18 the Union held a membership meeting of Respondent's employees at the plumbers hall in Phoenix. It was conducted principally by Lock, although Manning and other local officials, together with Grami and other western conference officials, were also present. Lock tes- tified he explained Respondent's proposal to the effect that the economic offer was the same as before but with- out retroactivity; that there was a change in health and welfare date: that the cost-of-living adjuster was includ- ed; and that the noneconomic proposal was the same. Regarding the back-to-work proposal, he explained there was no guarantee that employees would return and for that reason was recommending the offer be rejected. He told them only half would be eligible to return within 30 days and even then not to their old jobs. He explained the rebid proprosal after 4 months, saying employees would have to call in and because they were being treat- ed as new hires, they would be required to take the poly- graph and physical examinations. The membership re- jected Respondent's proposal. Coleman was not called as a witness and Lock explains the omission as probably one of simple oversight. I Saunders and he A( group. aware of tie ;lion, earliher proposal relatlig to polygraph examinations anrd aar tiha the Uniln klt's Re- spondeni had been polygraphing es hires sinct early 1977, had pre- pared a response o any questions regarding hat topic if It came Saunders and the other three manlagement ffiialss iho testified say no union offlicial asked about i. Htowever. the proposed ansser. ncver actl- ally articulated. as to ilt effect that Respondcnl wan;llled to polgriph returnees onl about iolence Iovuald clnpill proiperty r cmipoxees. false cilins of sick lea;:e and intlustrial iccidei t ll. Id theft of compainy property. If an employee failed the testl e Muld ilot he rehired 38 ASS()CIAIEI) (;R()ClKRS One of I.ock's official duties was to serve as recording secretary. However. since he Vwas engaged in describing the contract proposals, he was unable to perform that duty and it was assigned to Richard E. Coleman. Cole- man's minutes, which are in reasonably good detail, do not reflect that Lock said anything about polygraph or physical examinations, although they do accurately re- flect the remainder of Respondent's proposal. Colemalll was not called as a witness and Lock explains the onis- sion as probably one of simple oversight. Twelve employees said they attended the meeting, it appears from their testimonly that it was confused, loud, and disorderly. When they were asked what Lock told them at the meeting their ansvwers varied. Of the 12 em- ployees 9 said the most significant thing which occurred was the nea rly urianimous response opposing the cornpa- ny's proposal to take back only a percentage (recalled as anywhere from betwecai 10 and 50 percent) of the strik- ers. One employee thought that was a minor portion of the meeting and another employee left before the vote. Of the 12 employees 4 recalled the polygraph being men- tioned; I recalled that both polygraph and physical exams were mentioned; were silent on that topic; 2 were either equivocal or vague on the subject; and 1, Neil Little, recalls the topic in the context that Respond- ent was requiring trikers to return as new employees and believes Lock "assured" polygraphs and physicals would be required because that was the known proce- dure for new hires. After analyzing all the circumstances relating to the May 17 and 18 discussion of polygraphing, I have come to the conclusion that Saunders' version, as corroborated by Cooksey, King, and Naber, is the more probable. Moreover, I as particularly impressed with employee Neal Little's recollection of what occurred at the union meeting. He made a strorg and careful effort to recall exactly what occurred a id when he was asked what Lock had explained about the company proposal, he re- plied, "Well, it started like everybody would be a new employee and I don't know if it was assumed or was ac- tually said that you had to take a polygraph and physical examination." When he was specifically asked what was said about the polygraph test he replied: Well, you know that's always been a mystery. I don't know if everybody assumed that if you start as a new employee that that's what you had to do and it was stated, if you go back as a new employ- ee, so everybody assumed or-Tony [Lock] as- sumed that that was the way it was going to be or not. I don't know that. I think it is fair to say from his recollection, which ap- peared to be more accurate than most of the others (at least two thought Manning was the speaker), that the topic of polygraphing was discussed but Lock confused it with Respondent's actual proposal. Lock was aware that new employees were required to take polygraph and physical examinations and he was aware also that Re- spondent had said employees would go through a reap- plication procedure. I believe and find that Lock engraft- ed the polygraph and physical examination to Respond- ent's proposal as he attempted to explain it to the mem- bership. It was for that reason that the acting recording secretary did not write it dosn for it was part of Lock's explanation. but not part of Respondent's actual propos- al. I must reject Lock's testimony that he sought and re- ceived during the May 17 meeting an explanation for the "reapplication procedure." He simply assumed he knew ,what it was. I therefore conclude that during the May 17 bargaining meeting the topics of polygraph and physical examinations were not discussed. B. Polygraphing Returnece Beginv and Bargaining Cotftifllt's ()n May 18 and 19 four strikers applied to return to work. At this poinit strike-related violence was under way though it had not yet reached the level it did later that month. The first was David Vaughn on May 18. He was separately followed by Virgil Lewis, Herb Snyder. and Charles Mercer on May 19. Vaughn, Lewis, and Snyder were asked by Cooksey to take a polygraph test and all three agreed to do so. Mercer was not. All four were promptly recalled to work. Cooksey explained that of the three who were polygraphed, two, Vaughn and Lewis, had worked in the frozen food department where large amounts of inventory had been lost under suspi- cious circumstances. According to Irving von Gnechten. Respondent's vice president and comptroller, the Febru- ary 178 inventory for that department showed $28,650 worth of missing merchandise, including $16,000 in frozen crabmeat. Thai loss had promptly been reported to Corporate President B. J. Nichols; thus, both Vaughn and Lewvis were asked questions about theft within that department. l.ewis appears to have admitted a certain amount of theft but that admission did not defeat his re- instatement. Questions relating to strike violence appear to have been asked but only in a vague way (e.g., "Will your rehire by AG be against their best interest in any way?"). 7 Snyder, though not having worked in a depart- ment which had suffered theft, was nonetheless asked a series of questions generally relating to employee hones- ty. He was also asked whether Respondent's property. employees, suppliers, or customers had been injured due to the strike and if so whether he could identify the per- petrators. On May 20 the Union reached an agreement with A. J. Bayless and shortly thereafter the strike against that firm ceased. That settlement was bottomed on the April 7 proposal. On June 1 another collective-bargaining session was conducted again under the auspices of the FMCS. While there may have been some face-to-face contacts at that meeting they were not of a substantive nature. The FMCS commissioner closeted each group in separate rooms and carried proposals between them. Even so, ' It ill serve n purpose io analze he proposal Saunders was pre- pared to make at hat tirne had the question been raised Such a discus- siorl wouldi be speculatlie at bhest 7 Ihe ptlgrapher, Glen Whitside. tesified that as of May) i' he had not prepared any form questions specifically relating to strike iolence Most of the questions he asked were from standardized forms utilized in hi, profession DECISIONS OF NATIONAL LABO()R RELATIONS BOARD there is no significant disagreement between Lock and Saunders regarding what occurred. Lock says Respond- ent made an addition to its back-to-work proposal and modified one proposal which had been made earlier re- garding recall procedure. The addition was that strikers who were guilty of misconduct would not be eligible to return, and the change was that employees whose jobs had been eliminated would not be entitled to return, leaving for resolution the question of whether or not they might be returned to another job. Lock also recalls Saunders saying that returning strikers would not be con- sidered as new hires, although in the May 17 meeting Saunders had said the returning strikers would have to "reapply and go through the normal company proce- dures of reapplication." Saunders testified that on June 1 the May 17 recall procedure remained Respondent's proposal except that those "connect to violence" would not be recalled and those whose jobs had been eliminated were not to be re- called. He says this specifically referred to the produce packagers and he advised Lock that Respondent had gone out of the potato bagging business. Both Lock and Saunders agree the polygraph issue was not discussed. Saunders says Respondent's June I back-to-work propos- al dropped the requirement that returning employees had to be put through the application procedure. Whatever vagueness that phrase held from May 17 was clarified here. It is clear, moreover, that Respondent never treat- ed any striker as a new employee. They never filled out new application forms nor were they given physical exams; 9 both are required of new employees and were given to strike replacements. C. Strike Misconduct With respect to proving that the strike was punctuated by excessive violence and misconduct, which increased in number and vehemence from the beginning of the strike on April 12 to near crescendo pitch in early June, Respondent called a number of witnesses who testified about specific incidents. In addition, it offered summaries of reports compiled by its security staff. These were of- fered to show Respondent's "state of mind" at the time it allegedly instituted its policy of requiring returning strik- ers to undergo a polygraph test. I shall deal with the in- cidents involving actual testimony first, although all of those incidents reappear in the summaries together with additional incidents about which testimony was not taken. Beginning in April and lasting for approximately 4 to 6 weeks into late May the office windows of Corporate President B. J. Nichols were struck by numerous missiles 8 The only jobs which were eliminated--although not until July-were those of the produce packagers. As will be seen, Lock testified he did not learn of their elimination until September or October. Saunders says he so told Lock on either May 17 or June I Thus, Lock's testimony here is an admission that he knew from Saunders on June 1 that some jobs uwere being eliminated although he did not say whose jobs they were. No doubt they belonged to the produce packagers. See Saunders' testimony below. 9 As late as October 4 Lock was still under the impression that physi- cal examinations were being given returnees; his back-to-work proposal of October 5 included dropping the Union's continuous demand that the practice be stopped such as marbles, ball bearings, lead balls, and even an un- fired small firearm bullet. His office, which is located on the first floor of the business office building contains sev- eral plate glass windows. Physical evidence shows each of the panes has been struck by at least one and usually more such missile. The panes adjacent to Nichols' desk contain five such holes. One window, the furthest from his desk, was actually broken. The pelting of his office took place at night and no individuals have been specifi- cally connected to these "shootings," if that is the proper phrase. If nothing else, it demonstrated to Nichols his vulnerability to a possible assassination attempt during the day. While I do not suggest that anyone was at- tempting such an act, nonetheless, Nichols must have been in fear for his life. Indeed, he took extensive meas- ures to protect himself. On April 14 strike replacement James Crawford, the day after he had been hired, drove a semitrailer to a Fry's store to pick up some grocery carts. As he and his assistant returned to the truck they saw someone running from it. A few minutes later when the vehicle was set in motion, he discovered the trailer had been disconnected from the tractor as someone had pulled the pin. On April 23 and 24 and again on May 5 Frozen Food and Deli Supervisor John Schoenman was pelted by marbles and/or steel halls on five occasions as he left the warehouse for the parking lot. He said he saw the mis- siles coming too fast to be hand thrown and that he could hear them whistle in the air. He believes they were propelled by a slingshot or other mechanical device. He also heard them crack against the metal parking cover. On approximately April 24 (2 weeks after the strike began), sometime near midnight, Schoenman and two passengers were driving out the parking lot gate. A picket named Albert Leyba, according to Schoenman, threw himself into the side of Schoenman's car, then jumped up and smashed one of Schoenman's car win- dows with his picket sign. As Schoenman pulled through the gate to park, Leyba fell down screaming, "He did it! He ran over me! You hate me John, you've always hated me!" Other pickets claimed to have "seen the whole thing" and joined Leyba's complaint. However, city police who were present had also seen it, investigated, and Schoenman was not charged with any wrongdoing; indeed, it appears Leyba faked the whole incident and was simply harassing Schoenman, who had previously been Leyba's supervisor. Nonetheless, Leyba can reason- ably be seen as an agent provacateur attempting to ignite a flammable situation. On April 25, at approximately 6:15 p.m., Roy Merrill, Respondent's assistant manager of data processing, left work to go home. After leaving Respondent's facility he came to a nearby intersection where he was waiting for a stoplight readying himself for a left turn. Someone on foot came up behind him, accused him of working at AG as a scab, and struck him through the driver's open window. Merrill was injured in the left eye and temple area. When Merrill attempted to get out of his car, the assailant returned, headlocking him, and then hitting him in the face five or six more times. Merrill staggered back to his car, pulled through the intersection, and stopped. 40 ASSOCIATED GROCERS He was thereupon assisted by a paramedic unit which had seen the incident. He was taken to a hospital where he was treated, including five sutures in the left eye area, and released. Merrill was unable to identify his assailants but two individuals were arrested and tried. At the hear- ing, however, the two were defended on the grounds that someone else had done it. Indeed, in court another man admitted he was responsible. As a result, the two accused were exonerated. In late April, one of Respondent's printers, Calvin Van Note, a nonunit employee and a nonstriker, left work in the evening. He went to a nearby cocktail lounge, the Niagara Bar, for a drink. At approximately 11 p.m., as he left the bar and went around the corner to his motorcy- cle he was grabbed by two men one of whom hit him saying, "We don't like somebody taking our job." Van Note protested that he was working at his own job and was not taking anyone else's but was hit twice more. When he straightened up the assailants were gone. In addition to driving his motorcycle Van Note also owned a small sportscar without a top. On occasion pickets told him as he went through the main gate in the auto that he should be wearing a helmet as a rock or pop bottle or something could be thrown at him. Strike replacement Larry Little was hired in late April and testified that approximately a week after he was hired he was leaving the warehouse at midnight. As he left the 27th Avenue gate he drove past the nearby park- ing area used by the pickets. He saw a white car pull out from that site and begin following him. A high-speed chase through downtown Phoenix then began reaching speeds of 100 miles per hour. Little testified the chase in- cluded running numerous stoplights, making 180 degree turns, and being cut off by his pursuer as he attempted to drive to a police station. He eventually was able to escape and he reported the incident to the police. During the same time period Little recalls seeing, one midnight at the 25th Avenue exit near the covered park- ing area, marbles being shot onto the driveway. He could hear them strike the metal roof approximately 100 yards from an area where pickets were congregating. He heard the marbles whistling in and pickets calling out, "Oh, you missed!" Strike replacement Tom Escobedo testified that during May a number of incidents occurred. One evening, ap- proximately May 1, all the windows in his new Thunder- bird were broken while it was parked in the company lot. Later, as he drove out the gate, a picket asked him, "How's your window?" A few days later another vehi- cle, owned by his father-in-law and parked at Escobedo's home, was sabotaged by sugar being placed in the fuel tank. Approximately a week after that Escobedo's wife received an anonymous phone call which he interpreted as a threat. Toward the end of May his camper was scratched by a picket as he exited the gate. Before the month ended, he saw, as he was again exiting the ware- house lot after work, a man from the pickets' camp- ground throw a large rock at his camper seriously dent- ing the cab. On June I another vehicle which he owned, a Chevrolet Nova, had its window mysteriously broken while it was parked in his front yard. In June his wife received another anonymous phone call which he also interpreted as a threat and he himself received two anon- ymous calls. In the first the caller told him he had no business working at Respondent, they had been working there a long time and had built the job up to good wages, and if they ever caught Escobedo they were going to "break [his] f-ing legs." Also during the con- versation he was warned to take care of his family and they would take care of theirs. Later that week he got the second call during which the caller told him that when Escobedo got off work they were going to "get him," that they knew what kind of vehicle he drove, and they were going to get him when he drove out of the parking lot and kick his ass. Meatcutter Carlos Rodriguez, who had initially joined the strike but had returned to work on April 20, testified that 2 weeks after he returned someone spray painted the word "scab" on his car which was parked in the drive- way of his home. He was fearful for his safety during the strike and usually rode to work with his immediate su- pervisor, Bob Warren, asserting he did so because there was "safety in numbers." On May 3 after the shift was over, at approximately I or 2 a.m., Supervisor Schoenman and his two riders were about to leave work in Schoenman's vehicle. One of the riders, Jim Pulatie, had gone on ahead to the car. When Schoenman arrived at the car less than a minute later, he discovered Pulatie lying in a pool of blood in great pain. Schoenman observed that Pulatie had a deep gash in the temple area of his left forehead. An ambu- lance was called. Pulatie, who then was still conscious, said he had been struck by a missile shot by "the bas- tards on the other side of the fence"--a reference to the strikers. Pulatie lost consciousness and was removed to a hospital by ambulance. In early May strike replacement Joe Woods and a rider, a young man named Steven Thomas, had driven a truck to the Tempe cash-and-carry outlet. That facility was being picketed and they had crossed the picket line to enter. After backing his truck up to the dock Woods began unloading it. Thomas, who was 19 years old, re- mained in the cab. While Woods was inside the trailer he heard a commotion in front. People were calling to Thomas saying, "Come out you f-ing scab and I'll shoot your brains out." Then Woods heard someone call- ing Thomas a "nigger" (both Woods and Thomas are black). The record is not clear how the incident ended. Woods was not asked what he saw when he got out of the trailer. He also says that he did not actually see a gun although Thomas told him one of the men had a pistol. A report was made to Respondent's security de- partment. Jim Reany is a cash-and-carry employee. His wife is AG Vice President Cooksey's niece. Reany joined the strike at its inception and remained out for 2 or 3 weeks. After his return, approximately May 7, a Sunday night, he received an anonymous telephone call threatening to beat him up if he returned. On Monday, May 22, all the windows in his car were smashed as it was parked in front of his home. On May 30 at approximately 2:30 a.m. his two cars and his house were shotgunned while he and his family were sleeping. 41 DI-CISIONS ()F NATIONAL. I.AB()R RELATIONS B()ARI) Raymond Gomez, a clerical employee who had not struck, testified that at approximately 12:30 a.m. on May 9 while he was driving home he stopped at a railway crossing near the warehouse to wait for a freight train to pass. A van appeared behind him and bumped his vehicle toward the passing train. Either the bump was not severe enough to push him into the train or the driver did not intend to harm Gomez for Gomez was able to make a U- turn and avoid being shoved into it. I suspect it is the latter for the van blocked his retreat while the driver shouted, "Do you work with Associated Grocers? We have been seeing you over there and we are warning you, we want . . . you to cooperate with us.""' Gomez replied he had no business with "you people;" he worked in the office. They replied, "We know where you live and [if you] don't cooperate with us we are going to do something [to you]." Gomez is not totally facile in English, but the threatening tenor of his assail- ants' language and conduct is clear. Also during the second week of May, according to Larry Little, his entry into the plant was blocked by a picket crossing the driveway who refused to move for 2 or 3 minutes until a security guard appeared and moved the picket on. Sometime in mid-May, according to strike replacement Larry Graham, at approximately 11:30 p.m., as he was leaving the warehouse parking lot, he was followed by a white Lincoln all the way to the Phoenix suburb of Glendale where he lived. He decided that rather than leading the driver of the Lincoln to his home he would try to lose him. A chase ensued and after he temporarily lost the Lincoln it found him again at a stoplight. The driver of the Lincoln got out of his car and threw a brick at Graham's windshield. Seeing it coming, Graham managed to move his car so that the brick hi' the door instead of the windshield. Angrily, Graham began chas- ing the Lincoln to get its license number. Finally, after a 10-mile chase around Glendale, Graham attracted a po- liceman and reported the incident. On May 23 one of Respondent's semitrailer trucks, which had been parked behind a grocery store in Pres- cott, was set afire in an incident which the police de- scribe as arson. According to Prescott Police Detective James Moriarty, the truck had been parked at that loca- tion for approximately 10 days by its driver, a Prescott resident who apparently believed the lighted parking lot was a reasonably secure location. Moriarty testified that while investigating the fire he discovered the fuel line had been cut. He also found a length of string and burnt matches some distance from the vehicle. He determined the string was intended as a fuse which failed, and be- lieves the fire was actually set by placing newspapers un- derneath the cut fuel line and setting them afire. Re- spondent's comptroller, Irving von Gnechten, testified that Respondent's insurer paid $16,434 for the loss of that tractor. On about May 30, while Gomez and his family were sleeping in their house, someone began pounding on his doors, pounding his cars, and calling for him to come out. He called the police. i0 The quotation contains a ranscript correction. On May 30, as previously noted, Reany's house and cars were shotgunned. Also on that date, according to George Smail, a nonstriker who was a resident driver living in Kingman, he was driving south on Interstate 17 in Phoenix toward the warehouse when, at approximate- ly 2:10 a.m., as he neared the Grant Street exit, he heard sounds which he thought were backfires. He looked in his rearview mirror and saw a man leaning out of a vehi- cle with a shotgun. As he looked, the mirror was shot away. As another shot blew out Smail's front tire, he headed up the exit ramp. The assailant's car continued down the freeway. Smail was unable to identify the gunman. He nursed the truck to Respondent's warehouse where he advised the security department and the city police. Also at the end of May, Larry Graham testified that he was again followed as he left the warehouse. He saw some pickets run to a Chevrolet Nova parked at their campground near the gate. Graham led them on a high- speed chase until he saw a policeman parked in front of a bar. He caused the policeman to arrest his pursuers. Harvey Priem was employed as a security guard for the Malone Agency during the strike. One of his duties was to ride in trucks which delivered to the Smitty's grocery chain. During the early evening of June 2, just as it was getting dark, he was in a truck at a Smitty's dock. Two gunshots were fired at the truck from a dark station wagon which was running without lights. It sped away at high speed. Priem was unable to obtain the li- cense number or to recognize the driver. Keith Strader, a security guard employed by a subsidi- ary of Respondent, Affiliated Systems, testified that he was assigned to patrol various locations at the main warehouse. Strader said as a security guard he wrote a number of incident reports, all of which involved vio- lence or strike misconduct. He stated that between April 12 and June 5 he actually observed a number of incidents deserving report. He said there were nails in the drive- way daily and on the first or second day of the strike he observed a picket break the windshield of a Bixby truck. Flat tires due to nails and "stars"' were common. Strader also recalls there was at least one bomb threat and on one occasion a lighted flare was thrown into a stack of pallets on the fence line causing a small fire. He commonly found ball bearings which had been shot upon the property. The ball bearings ranged from 1/2 inch in diameter to 3/4 and 1 inch. He also found lead balls and marbles near broken windshields. Once he found a .38 caliber bullet which had not been fired but which had been either thrown or slung upon the property. He re- members president Nichols' office windows were bom- barded with marbles or ball bearings. With respect to nails being thrown on the property, he remembers that one evening in June at the 25th Avenue gate it "snowed roofing nails." He said approximately 5 to 6 pounds of nails were swept up that day; it was not A "star" is a device designed solely for tire sabotage It consisis of too sharp metal prongs welded together to f a four-pointed ltar No mailer how it is thrownti it ill alwvays land ln three f the four prongs with the fourth in a vertical positiin ready to pierce any tire hich rolls over it 42 ASSOCIATED GROCERS uncommon to pick up approximately 20 to 30 nails per 8- hour shift. Once while he was picking up nails a picket named Kirkpatrick tried to prevent him from doing so by attempting to step on his hands. In addition to nails and stars, he also saw plastic lids (apparently plastic sealer lids such as those commonly seen on coffee cans) with nails piercing them to guarantee that the nail would be in an upright position when run over. He also saw pickets scratch vehicles with their picket signs as they passed through the main gate. Finally he observed pick- ets commonly walking extremely slowly across the gates blocking ingress and egress to the plant. Frank Wood, Respondent's vehicle maintenance super- visor, testified that after the strike began a large amount of tire damage to trucks came to his attention as well as damage to employees' cars. As part of his duties he re- viewed the invoices for repair of those vehicles, both tire and labor costs. Most tire repair was contracted out and Respondent also decided to pay the repair costs for em- ployee vehicles which appeared to have been victims of strike related damage. He said during the strike tire maintenance alone increased significantly averaging $5,700 per month more than before the strike began. He also said that in late April he saw pickets throw nails and once observed pickets break a windshield of a non-AG truck at the gate. All of the foregoing matters involve actual testimony at the hearing. In addition, however, Respondent de- tailed other incidents which were recorded by its secu- rity personnel as they came to their attention. The records were made on documents entitled "security report" and were kept in the regular course of the secu- rity department's business; it is clear that Respondent uti- lized these reports for several purposes. They were re- viewed both by Respondent President Nichols and Re- spondent General Counsel Ross Blakely. Nichols re- viewed them in order to assess the nature of the strike and the risks created by it. Blakely reviewed them for the purpose of determining whether or not there was suf- ficient evidence to seek an injunction against misconduct. The General Counsel has argued that little, if any, reli- ance should be placed on the reports as they are hearsay. As I observed during the hearing, however, Respondent has asserted that it did not institute the polygraph exami- nation until June 5 and that it was instituted in response to the escalating violence of the strike. All of the evi- dence upon which it relied to determine that the strike was escalating is found in those reports. The reports show that between April 12 and June 5 there were 64 occurrences involving property damage, 33 involving ha- rassment of individals, and 14 involving unreasonable risk to persons such as assaults, batteries, or what might appear to be attempted homicides. One final observation should be made about the vio- lence. While it appears that some of the alleged perpetra- tors of violent acts were identified and on occasion ap- prehended, for the most part the attacks were designed to conceal the perpetrators' identities. Most of the inci- dents occurred at night. Even where attacks, such as that against Merrill, occurred in the daylight, they were sudden and calculated to escape identification by the nature of the assault. 12 In the face of the violence and the attendant confusion it is not surprising that Respondent attempted to do something to curtail it. Accordingly, President B. J. Nichols decided to polygraph returning strikers. D. Respondent's Conduct Toward Strike Replacements and Returning Strikers When the strike began on April 12, Respondent imme- diately began hiring strike replacements. As more than 300 individuals had struck, Respondent's personnel de- partment was taxed to its limit to find replacements. Re- spondent had, a year earlier, begun polygraphing all ap- plicants for employment. It also required physical exami- nations. Consistent with that policy, when the strike began, it gave all strike replacements both polygraph and physical examinations. To fill the strikers' jobs Respondent advertised for re- placements by radio and newspaper. While it is true that Nichols testified that he intended to hire each of these replacements on a permanent basis, nonetheless, there is evidence to the contrary. For example more than 1,000 employees who were hired over the period of the strike (there was significant turnover among the strike replace- ments) signed a statement saying, "I understand that being employed as a Casual (Jobber) does not guarantee that I will be considered for full-time employment." Fur- thermore, at some point replacements were placed on a 90-day probationary period rather than 60 days as had been the practice before the strike and they were told their jobs were temporary. On May 10 virtually all of Respondent's employees re- ceived a letter from President Nichols advising the em- ployee that when he or she was hired "it was as a full- time, permanent employee, subject to the normal proba- tionary period .... " Nichols also advised that at the end of the probationary period the strike replacement would be eligible to receive company fringe benefits under the company benefit program. The bottom of that letter consisted of a tear-away coupon which each em- ployee signed acknowledging that he or she had received a copy of the May 10 letter and now understood that his or her job is considered full-time, permanent employ- ment...." Between May 10 and 18, 237 employees signed that document. Nonetheless, it is also true that after the May 10 letter was issued and acknowledged, and as replacements were hired, Respondent continued to have them sign the first slip cited above. Moreover, in a September unemploy- ment compensation hearing before the Arizona Depart- ment of Economic Security both Operations Manager Cooksey and Personnel Manager Jay Pickup testified 12 In Merrill's case two alleged assailants were arrested as a result of identification hy the paramedics. It appears. however. that they ere found not guilty because of the confession of a third individual W'hile the record is not clear with respect to the merit, of the guilt or inno- cence of hose three, nonetheless, he availability of confusion tactics to the defendants punctuates the difficulties which Responden faced Een in circumstances here individuals were apprehended confesions h5 others may well have lended o confuse. rather than clarify, those seek- ing he truth 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the strikers had not been "permanently" replaced and that the strike replacements were temporary hires. They explained their testimony there by saying that it was their belief at the time because they were unaware of Nichols' May 10 letter. Frankly, in weighing this contrary evidence, and rec- ognizing the letter, I nonetheless conclude that Nichols, on May 10 intended to clarify, or at least convert, all re- placements to permanent status. While I am not able to discover the reason Pickup and Cooksey were unaware of that letter, Pickup's lack of awareness explains why he continued to have employee applicants sign the first slip thereafter. If Pickup was unaware of Nichols' decision to convert all the replacements to permanent status it is only to be expected that he would continue to follow his first procedure. His adhering to that system after May 10 does not, therefore, lead me to conclude that it had any legal significance. Certainly President Nichols' letter, coming from Respondent's chief executive officer, must carry more weight in the overview than the hiring slips solicited by Pickup's personnel office. It seems fair to conclude that as of May 10 Respondent's policy with re- spect to the hiring of strike replacements was to treat them as permanent employees except to the extent that they failed to complete the probationary period. Between May 22, when Lewis and Snyder returned (having been preceded by Vaughn and Mercer by 3 days), and June 6 no striker sought reinstatement. On June 5, according to Nichols, Cooksey, King and Randy Hendley, Respondent's grocery and general merchandise warehouse manager, a procedure for handling returning strikers was implemented. That procedure required rout- ing each striker making an inquiry about returning to Cooksey, or in his absence to Hendley or King. The pro- cedure, according to Nichols, as more fully described by Cooksey and Hendley, was first to find out what the caller wanted. If the caller did not express a desire to return he or she was given a brushoff. If the caller ex- pressed a desire to return he or she was asked three questions: (I) Are you abandoning the strike?; (2) Are you offering to come back unconditionally?; (3) Will you abide by the result of a polygraph test? If the caller an- swered negatively to any of the three the company offi- cial told him nothing was available. If the caller replied affirmatively to all three a polygraph test was scheduled. Upon passing it the returnee was assigned work in his or her former seniority district. Often the returning striker did not return to the same "primary job function" which he had held before and often the shift and working hours were different. Cooksey explained that returning strikers were assigned jobs which were available in his or her se- niority district as those were the most substantially equivalent jobs which could then be found. As the dis- pute progressed some of Respondent's older employees complained they were being assigned to jobs which they were unable to perform for they were too old or no longer strong enough to handle the jobs which were available. As a result of negotiations Respondent acco- modated their needs by permitting them to pass until a job could be found which they could handle, at which time they were recalled to work. Cooksey kept a detailed record, in evidence as G.C. Exhibit 3, of who called and when. The record shows the result of those conversations, although the entire conversation is not reflected on that document. Occa- sionally, when a particular caller would not follow the routine, Cooksey made separate notes about them. It is significant that Cooksey did not begin keeping this record until June 5. That fact supports my earlier conclusion that the policy of polygraphing returning strikers was not actually implemented until that date, the earlier polygraphing of Vaughn, Lewis, and Snyder not- withstanding. The General Counsel has alleged that during the course of these conversations, as well as during some conversations at or near picket lines, Cooksey or other management officials such as King or Nichols made statements to the effect that as a condition of returning to work strikers would have to abandon the Union and/ or turn in their union membership card. Frankly, I be- lieve that matter can be handled nearly cursorily. First, it will be recalled that 2 days before the strike began Re- spondent issued a letter with paychecks which, inter alia, advised employees that if they failed to honor the strike while remaining members in good standing they could become subject to union fines. 4 Second, there is no question that Cooksey and his assistants followed the three-question format consistently. Third, some employ- ees testified they understood the question "Are you aban- doning the strike?" to be the same as "Are you abandon- ing the Union?" Fourth, a number of employees who agreed to the three conditions, knowing they would be crossing the picket line to return to work, asked Cooksey or Hendley what they should do with their union cards. On no occasion did Cooksey or Hendley advise them about union cards prior to the employee's question. Also, on each occasion when they were asked, they simply told the employee that to guarantee that the Union would not seek to fine them they should turn in their union card.t5 Even the employees who related the con- 13 Equally supportive of that conclusion is the fact that the poly- grapher did not begin standardizing his examination questions regarding strike-related violence until after the May 18-19 polygraphing. " There is no claim that such a statement was violative of the Act. '" Ellery "Bud" Starr, a long-time employee who worked in the cash- and-carry unit, testified that he spoke to Executive Vice President Don King several times in July while he and other strikers were picketing a cash-and-carry facility. He said King, with whom they were all friendly, walked over to the gate to talk. King said they called him over. Starr remembers King once saying, "Hey Bud. we'd like to have you guys back. I mean you guys are old AG employees. We'd like to have you come back. I don't know why you'd . . give up all your seniority and all this and . .. just throw it away" Starr said King told them all they would have to do to return was take the lie detector test and "turn in [our] union card. but turning in [the] union card wasn't really a 'must"' Starr went on to explain that King's reference to the union card was not a condition of returning but just a way to avoid a union fine. With re- spect to King's alleged reference to their "throwing away seniority." Starr later conceded King may have urged them not to "throw away their jobs"; perhaps, offered Starr, King said both. King testified the conversation began by Starr asking what they had to do to come back and he told Starr and the others that they could come back tomorrow. Starr responded, "Yeah, hut we'd have to take a poly- graph. wouldn't we?" and King answered, "Why would you he con- cerned about something like that?" King denied saying employees had to Continued 44 ASSOCIATED GROCERS versations in a manner which could be construed as un- dermining the Union's representative status readily ad- mitted Cooksey and Hendley also told them that the choice was theirs; they could do with the union card what they wished. The only reasonable conclusion to he drawn from the "choice" given these employees was that he or she could either keep the union card or not but that it would not affect their reinstatement. In the face of overwhelming evidence to this effect, I have rejected testimony of those few witnesses to the contrary. Ac- cordingly, I find there is insufficient evidence supporting the General Counsel's allegation that Respondent condi- tioned the return of strikers on their abandonment of union representation. The General Counsel, in support of the argument that the polygraph test was coercive and prolonged the strike by inhibiting strikers from returning, points to certain no- tations made on Cooksey's call record as well as the tes- timony of some of the employees. Cooksey's records show that employees gave various responses to the three-question format. Some answered affirmatively to all three questions but failed to appear for the polygraph examination. In those cases Cooksey recorded that they were a "no show." Others refused to take the examina- tion and Cooksey wrote "won't take poly." " Other notes said, "won't cross picket line," "wants to think," and "talk with wife." The General Counsel asserts that those who stated they would not take the polygraph and those who wanted "to think" were deterred from taking the polygraph because of its allegedly inherently destruc- tive nature. Respondent concedes that some individuals refused to take the polygraph, but showed by direct evi- dence that many employees offered reasons other than the polygraph itself for refusing to take it and for decid- ing they wanted "to think." Indeed, it appears that some employees called Cooksey without having any intention of returning even though they told Cooksey they did. The witnesses are summarized as follows: 1. John Hubble agreed to take the polygraph on June 5 but was a "no show." He testified that a week after the strike began he told his supervisor, Bob Warren, that he did not wish to return because the strike was so violent. He had no real complaint regarding the polygraph re- turn in their union cards or abandon the Union. The implication of his testimony is that seniority was not discussed. Frankly, I do not believe the General Counsel has sustained his burden here with respect to Respondent's allegedly conditioning strikers' return- ing on abandoning union representation Moreover. Starr's recollection regarding King's reference to seniority is too hazy to be relied upon, even though King did not specifically deny it. '^ See, for example, the testimony of Robert Harry who impressed me as a very unreliable witness He claimed to have telephoned Hendley in May and that Hendley told him to surrender his union card by registered mail, to make an appointment to take a lie-detector test, which Hwould in- volve questions regarding strike violence as ,well as other misconduct and who suggested that arry would probably fail the test because he had been arrested on a picket line for harassing people-calling them scabs First, Harry admits Hendley asked him "something like" whether or not he as abandoning the strike. That would indicate the call occurred in June, not May, as Harry insists Second, Henidley said he never Itok a call until he was near his desk where he could make a record of il. There is no record that Harry ever called and Hendley denies he did Third, Harry, in responding to questions in the area of strike misconduct, was terse and uncommunicative and appeared less than candid His testimony is not credited quiremcint: he had taken it when he was hired. Several weeks later (he said monuls) he spoke to Pickup who said he would have to take the polygraph as a condition of returning. Hubble agreed. but that day received an anonymous telephone call and the tires of his car were deflated. Hie became frightened and did not appear for his polygraph appointment. He later took the polygraph on August 3 and returned to work. 2. When Arnold Koch was originally hired in 1977 he had taken a polygraph test. After the strike began he called Respondenit several times regarding returning to work. The records show that he called on June 8 and he said he would not take the polygraph. However, he testi- fied that he spoke to Nichols on that occasion and told Nichols he would not cross the picket line. He says ill July (the records show June 23) he called again and spoke to Cooksey. He agreed to the polygraph but Cooksey called him back and said that he had no open- ings. It was agreed that Cooksey would call him again when a job opened up. A week or two later Cooksey of- fered him a part-time job, but he refused it as he already had a full-time job. Shortly thereafter, on August 16, Cooksey called again with a 40-hour job and Koch took it, returning on August 22. 3. Rudy Castillo had been hired in May 1977 and probably had taken a polygraph test at that time. He had been laid off 3 days before the strike but joined it anyway. He called Cooksey on June 13 and answered af- firmatively to all three questions. However, he was a "no show" and did not appear for his polygraph appoint- ment. He gave equivocal testimony regarding why he did not take the polygraph. To Respondent he said he simply decided to "stick with the Union"; to the General Counsel he said he decided not to go back because of the polygraph, his fear that the rules and regulations might be different, he did not need it, and why go through more?: to the Respondent he again admitted that he did not wish to abandon the Union. 4. On June 14 Celestino Rios called Cooksey to say he was considering crossing the picket line. Although he told Cooksey he was willing to abandon the strike he testified he also told Cooksey he was not willing to come back unconditionally. Cooksey's records show that Rios "won't take poly" but that appears to be an error. Rios did not make any other application until October when the Union called off the strike. He was finally recalled in January 1979. 5. Harold J. Van Horn is a long-time employee. 7 On June 16 he called Cooksey and after going through the three question routine8s told Cooksey that if that was what he had to do, he would do it if he decided to come back. Cooksey's record shows Van Horn "wants to think." Van Horn returned to work on November 13 after the Union had called off the strike. He was never polygraphed as testing ended in October. 7 ie has been a working foreman for some time and may be a super- visor as he has the right to assign work Even so. his job is in the bar- gaining unit "l He says that Cooksey instead of asking him if he was abandioning the strike. told him to "turn in his union card " Van Horn is one of the individuals %who appears to have confuscd the two phrases 45 DECISIONS ()F NATIONAL LABOR REI.ATIONS BOARI) 6. James Veach is a long-time employee. He called Cooksey on June 16 and asked what he had to do to get his job back. Cooksey asked him if he was willing to give up the strike. When Veach replied, "I didn't say that." Cooksey responded, "Well, there's no use going any further." Cooksey listed him as answering "no" to the first question of whether he was abandoning the strike. Veach admitted that when he called Cooksey in June he only wanted to find out what he had to do to get his job back and that he was fencing with Cooksey. He claimed he was merely checking out "the rumor" about the polygraph requirement. 19 Veach says he called Cooksey again in August saying he was willing to give up the strike and Cooksey offered him a polygraph ap- pointment which Veach did not accept. Cooksey's record reflects no such call, but Veach's testimony re- garding the second conversation is not significant in the overview. In some respects, however. Veach's testimony is subject to doubt. He was evasive and inconsistent. I doubt that the second conversation even occurred. 2" 7. John Sirovatka telephoned Cooksey on June 21. Cooksey's notes show he was recorded as "want to think." Sirovatka testified he answered all three of Cook- sey's questions affirmatively, but then told Cooksey that because of the violence and because he feared people would follow him home, he wanted to protect his family and had decided to wait. He also admitted to me that he had not really made the decision to abandon the strike even though he told Cooksey that he would do so. Siro- vatka did say the idea of being polygraphed bothered him "some" but his principal reason for not returning was his fear of violence. The General Counsel persuaded him to say that the polygraph was like being "on a tight- rope" and then to say that the polygraph aspect was equal in weight to his fear of violence. Later, on August 31 he called Cooksey again and agreed to all the condi- tions. He took the polygraph and returned to work on September 4. Sirovatka had left the area during the course of the strike to seek work in another State. To do this he had obtained an honorable withdrawal card from the Union. He testified that since he had the withdrawal card it made him "feel more free" to go to work at Re- spondent. That implies, to a degree at least, that one of the reasons he did not return earlier was that he feared union discipline if he did so. 8. Gene Hodges called Cooksey on June 21. Cooksey lists him as "wants to think." Hodges testified he an- swered the three questions affirmatively and when Cook- sey offered to schedule him for the polygraph test he re- 19 Veach's characterization of the polygraph requirement as a "rumor." here occurring more than a monlh after he Union's member- ship meeting oif May 18, buttresses my earlier conclusion hat the poly- graph was not actually part of Respondent's proposal on May 17 20 At first Veach claimed that during the May 18 plumbers hall union meeting he recalled voting on Respondent's proposal; then he said h did not remember such a vote; then said he did Although he is a long-time union member he claimed not to know the meaning of the word "scab." He also said that although some of his friends returned to work during the course of the strike they never actually told him of the polygraph requirement. To find him credible I must conclude he lives in a vacuum. Even his June call to Cooksey is suspicious. Since it was not a legitimate attempt to return to work, and his claim that he was only ilvestigating a "rumor" is hollow, it smacks of deviousness. Such a witness cannot be viewed except with doubt. plied that he wanted to "think about it." He admitted before me that at the time he called he did not actually wish to return to work. He did not want to abandon the Union at that point and was also concerned about the violent nature of the strike. He called again on July 24. answered all three questions, took the polygraph, and was promptly returned to wtcrk. In response to a ques- tion by the General Counsel he said he waited a month between July and August to see if the polygraph was "legal" and hoped it would be resolved. On reexamina- tion by Respondent he reiterated that he decided not to return because he simply wanted to stick with the Union and that the polygraph did not really offend him. He also testified that he never told Cooksey in June that his decision "to think" had any relationship to the polygraph requirement. 9. Robert Conroy did not impress me as a straightfor- ward, candid witness. He was agressive, pushy, and had a tendency to characterize. He testified that in June, July, or maybe August he called Cooksey. Cooksey's record shows that Conroy called on June 21. He says he has called at other times but the record is silent as to any other calls, nor did Cooksey recall any. Conroy claims that after he told Cooksey he wanted to return, Cooksey said the only way he could get rehired is if he came down, filed a new application, and took polygraph and physical examinations. Conroy says he told Cooksey to go to hell. On two points alone Conroy is not believable. There is no evidence that after June I Respondent ever said anything about filing a new application (even before that the evidence is less than clear as to what was actual- ly being required). Second, no returning striker was ever asked to take a physical examination nor was it ever pro- posed as a condition. It may be that Assistant Business Agent Lock believed that to be the case, but it clearly was not. In that circumstance it sounds as if Conroy is fabricating on that point."2 Cooksey's record shows him as "talk with wife." Cooksey's testimony is that he went through the standard procedure with Conroy and Conroy agreed to all of the conditions but then said he wanted to talk to his wife. I observe that Conroy was a union steward and that connection to the Union may have caused him to color his testimony here. As with Veach it does not appear that Conroy truly wished to return but was simply testing Cooksey. 10. Joaquin "Ray" Candelaria testified he called the Company twice and spoke to Hendley on each occasion. His first conversation was in late June. The record kept by Cooksey does not reflect this call. However, he says he asked Hendley if it was feasible to return to work and asked what the procedures were. Before Hendley could answer Candelaria asked if his old job was still available. Hendley replied that it was and that he could come back to work after taking the polygraph examination. Cande- laria testified he then told Hendley he would probably wait 2 or 3 weeks before he was sure if he wanted to return because he was worried about the violent nature 2 Conroy's testimony here is a carbo copy of "hat he says Ulion Secretary Treasurer Manning told the membership at the plumbers hall on May IX. tie appears to have memorized that version. Moreover it was lock, nrot Manning, swsho explained the proposal at the plumbers hall 46 ASSOCIATED GROCERS of the strike. He also testified the polygraph requirement had nothing to do with his decision to wait. On July 17 he called again, took the polygraph lest on July 21 and returned to work on July 24. 11. Norman Pierson telephoned Hendley on July 18. After answering all three questions affirmatively a poly- graph examination was scheduled but he did not appear for it. Respondent's records reflect "changed his mind." Pierson testified that shortly after arranging to take the polygraph examination he got an anonymous telephone call which he regarded as threatening. The caller told him, "You better think twice before you go across that line." As a result he decided not to return. On August 6 (Cooksey's records reflect August 10), he called again, this time speaking to Cooksey. Although his testimony with respect to the date of the polygraph test differs from the record by about a week but it is clear that he took the polygraph test and was promptly returned to work. 22 12. John Duhigg telephoned on July 19 and spoke to Hendley. He told Hendley that he was strongly consider- ing abandoning the strike and would return uncondition- ally and answered "maybe" to the lie detector test. Hendley's note lists him as a "no poly." However, before me Duhigg testified that he "wasn't sure if [he] was coming back." He says he also told Hendley he was unsure about returning because of the violence and felt he had to talk to his wife because he had strong union loyalties which he did not wish to give up. On August 21 he spoke to Cooksey. This time he answered all three questions affirmatively and took the polygraph the next day, coming in with a close friend because he believed that was the safe thing to do. He said he delayed his return to work because of the violence. He was aware of a car which had been shot up. He said he also told a Board attorney that he did not wish to return in July or August because of the violence. Finally, he testified that the polygraph requirement did not bother him. 13. Robert Hamilton called Hendley on July 20. He answered all three questions affirmatively, took and passed the polygraph, and was promptly returned to work. He expressed no concern with the polygraph re- quirement. 14. William Eshenbaugh testified that he called Cook- sey sometime during May, June, or July. Cooksey's record shows it to be on August 10. Cooksey lists him as "wants to think." Eshenbaugh says Cooksey asked him if he was willing to give up the strike and when Eshen- baugh answered, "yes," Cooksey told him he needed him to work nights. Eshenbaugh asked if he could not have his old job back and when Cooksey told him it was not available Eshenbaugh said, "I'll have to think about it." It is clear here that Eshenbaugh's desire "to think" about the situation had nothing to do with the polygraph re- quirement. Moreover, Cooksey's testimony with respect to this conversation is far more cogent. He says that after Eshenbaugh said he was abandoning the strike, Cooksey asked him if he was offering to return to work unconditionally. He remembers Eshenbaugh asking him z2 Pierson is line of the individuals who believed the question a;Ihbl abandoning the srike was the same as abandoning the nion and ser- ing his union membership. what an "unconditional offer to return" meant. It was then that Cooksey told him the only openings were on nights. Eshenbaugh replied that he would have to think about that. According to Cooksey the polygraph ques- tion was never reached due to Eshenbaugh's balk at the second question. Eshenbaugh agrees that if he could not have his old job back he did not wish to return. As a result he took a job with Arizona Sand and Gravel. He has not contacted Respondent since. E. he Strike Winds Down, Later Vegotiations As previously noted, the decertification petition was filed for the warehouse unit on June 9. On August 28 a similar petition was filed in the cash-and-carry unit. There is no contention that either petition was sponsored by Respondent or given any assistance by Respondent. The General Counsel contends, however, that the filing of the decertification petitions engendered bad-faith bar- gaining by Respondent. He has, however, stipulated that between the beginning of bargaining in January and at least May 17, Respondent engaged in good-faith bargain- ing. On that date he contends, due to the unilateral adop- tion of the polygraph requirement for returning strikers, Respondent violated Section 8(a)(5). (I have found, con- trary to that contention, that the policy was not adopted until June 5.) Nonetheless, the General Counsel does not allege Respondent engaged in any bad faith, broad-based, refusal to bargain until after the decertification petitions were filed. No bargaining sessions were conducted be- tween June 1 and September 28. At the September 28 meeting, according to Business Agent Lock, the only issue remaining was "back to work." He says Saunders asked him if the Union's posi- tion had changed regarding Respondent's May 17 pro- posal. Lock replied that the Union would respond to each proposal on a step by step basis but wished to deal with the return of the strikers first. He wanted all strik- ers reinstated and then would negotiate the contract. Lock says he told Saunders the Union was willing to reestablish the expired contract for the interim period. Lock's position here suggests that "back to work" was not, as he testified, the only issue remaining. The Union may have been willing to capitulate to Respondent's con- tract offer, but if it was he did not say so, nor did he act as if it was. Even so, he appears to regard as insubstan- tial any remaining hurdles. Saunders' testimony is somewhat different. He says Lock proposed that all strikers were to be returned to work upon ratification of the contract; there were to be no physical and polygraph examinations; and that the old contract would be extended during the continued bar- gaining. He says Lock wanted individuals accused of misconduct to be handled separately. To those proposals he replied that the Company's earlier back-to-work pro- posal would stand, that it had no intention of discharging employees to make room for an en masse eturn of strik- ers. Saunders also told Lock that if an agreement was reached the Company wanted to give each striker 10 days to make known his desire to return because it had information that many strikers had no desire to return. 47 DECISIONS ()F NATIONAl. LABOR RELATIONS 1()ARD He said the Company would then recall each employee by seniority district and, that while Respondent would continue to require the polygraph examination, it would agree that the only reason to disqualify an individual from returning would be because of violence in connec- tion with the strike. 2" He remembers Lock replied by asking for a definition of violence and he answered that Respondent would follow NLRB definitions, statutory definitions, and court rulings. Lock recalls there was a disagreement regarding whether the strike replacements were permanent or tem- porary. He says he asked Saunders why the replacements were being treated as permanent when Cooksey and Pickup had admitted they were temporary at the Sep- tember unemployment compensation hearing. He remem- bers Saunders saying Nichols' May 10 letter was "self- explanatory," he knew nothing about the unemployment matter, that the strike replacements had become perma- nent when they had completed their 90-day probationary period. Saunders testified: () He restated to Lock that those employees whose jobs had been eliminated were not to be recalled; (2) Respondent would assign work-weeks to strikers with normal right of bidding; (3) the strikers' se- niority would be docked for the amount of time each striker spent on strike excluding a 2 or 3 week grace period; (4) Respondent's economic offer remained the same as its April 7 offer; (5) the Union had never demon- strated its majority in the maintenance mechanics unit and recognition in that unit was deemed to have been dropped from the Union's demands; (6) even though they had agreed with respect to the driver's bid rules and even though Respondent had been following those rules a different work situation had arisen and there was a corresponding need to readjust the rules. Saunders as- serted that he was not reneging on their earlier agree- ment. He says Lock agreed that an adjustment of the rules had to be made. Lock testified that at the September 28 meeting Saunders proposed that all further discussion would be contingent on the decertification petitions being resolved. Lock says he had shortly before learned from the NLRB's Regional Office that it was going to issue the instant complaints and the decertification petitions were to be administratively dismissed. Although it had not yet occurred, he advised Saunders he had heard from the Regional Office that the petitions would be dismissed and it would do no good to hold up negotiations over that. He says Saunders replied he could not do anything tntil the matter was resolved and it might be 6 months or a year before an election was held. Whatever course the petitions took, according to Lock, Saunders said the Company's position was that until they were finally re- solved the terms of a negotiated contract would not go into effect. Lock also said, in terms different from those described by Saunders, that Respondent's September 28 proposal withdrew the "rebid" proposal made earlier because it did not expect large numbers of employees to return. He 13 Up to that date no striker had been denied reinstatement (n grounds other than strike misconduct as determined by the polygraph also says Saunders advised him for the first time that the produce packagers were not to be recalled because the Company was no longer in the potato bagging business. Lock admits he knew in July that the equipment had been sold. See my earlier discussion of this subject at footnote 8, supra. As I have said, Lock, therefore, appar- ently knew more in July than simply that the equipment had been sold. Another meeting was held on September 29. The Union rejected Respondent's proposal of September 28, although it appears that at least a large amount of it was acceptable, principally those items relating to contract terms. Lock says the Union offered to arbitrate over those strikers who were accused of misconduct. He also says Respondent continued to refuse the Union's offer that the employees return en masse, because 200 employ- ees had filed the decertification petitions. Saunders testified that on September 29 Lock said Re- spondent's back-to-work proposal was nearly acceptable, but the Union wanted to limit the Company's refusal to recall only to those individuals who had been convicted of felonies. Saunders says Lock earlier had wanted ev- eryone returned first and then arbitrate over individuals accused of lesser misconduct. Saunders repeated the pre- vious stand that Respondent would not agree to bring back all the strikers at once or those who had taken other permanent employment. On October 4, the Union's secretary-treasurer, Horace Manning, sent Respondent a mailgram stating it was acting on behalf of the strikers and "we are hereby making an unconditional offer on behalf of those employ- ees to return to the same or substantially equivalent posi- tion to those which the employees held prior to the com- mencement of the strike . . ." The mailgram continued, saying picketing would cease at 8 a.m. on October 5 and it set a deadline of 5 p.m. on October 6 for Respondent to accept that offer. During the morning of October 5 another bargaining meeting was held. Lock had assumed Respondent had received the mailgram (in the mistaken belief that it had been a telegram). He told Saunders the Union was inter- ested in the orderly return of the strikers and wanted them all returned to specific jobs and shifts. He said the Union was willing to go along with the return of 50 now followed by 50 each week thereafter. Saunders recalls him saying he did not wish returning strikers to be re- quired to take polygraphs and he understood no physical examinations were being given so he was dropping that as a demand. However, the meeting was disrupted at approximately 10 a.m. when Saunders' secretary came to the room with a copy of the mailgram. When Saunders read it he became angry with Lock, saying this was "crap." When Lock realized Saunders had not received the communi- que before the beginning of the meeting he apologized for assuming Saunders had. The apology was accepted but the parties adjourned until the following day while Respondent attempted to decipher the wire's meaning. On October 6 the parties met again. Their discussion centered on the meaning of the mailgram. Lock said Saunders told him 50 employees could return by Sunday 48 ASSOCIATED GROCERS night, October 8, and also told him that Respondent was no longer requiring polygraph examinations. Saunders testified in agreement and added that polygraphing re- turning strikers had been discontinued on October 4. During the meeting Saunders asked Lock for a list of those strikers who actually wanted to return to work. He says neither Respondent nor the Union was really certain which employees wanted to return. Saunders observed that a number of people had "terminated themselves." The record shows that some had retired and others had acquired permanent work elsewhere.24 Saunders says Respondent did offer to call back the top 50 on the seniority list and then follow the remainder of the list by seniority saying that an employee could ask for his old job or bid the shift and workweek. Saunders said that the Union did not agree to Respondent's pro- posal to return 50 employees immediately; apparently the Union was undecided on the topic. It took a stand sever- al days later. However, Respondent maintained its posi- tion with respect to violence and its decision not to recall those whose jobs had been eliminated. Saunders also told Lock there was a need to discuss some other matters. These topics included the exclusion of certain clerk duties from the bargaining unit, discuss- ing polygraph clause, opening up certain starting times, and renegotiating the drivers' bid rules. He remembers that the Union asked for a change with respect to the in- formation shown on pay stubs. In addition, Saunders told Lock Respondent would not give strikers full seniority credit for the amount of time they had been on strike and the implementation of any contracts which were reached would be after the resolution of the decertification petitions in both the warehouse and cash-and-carry bargaining units. The latter two statements drew an angry response from the union negotiators who told him, "the clock starts run- ning for you at 5 p.m. tonight," a reference to the Union's belief that it was an unfair labor practice strike as of that moment. Either Lock or some other union offi- cial also stated the decertification petitions had already been resolved. Saunders responded that the decertifica- tion petitions had not been dismissed and, even if they had been, they could be reinstated. Lock also asserted that only those strike replacements who had been hired prior to May 18 were permanent. On October 9 Lock sent Saunders a letter transmitting a copy of Respondent's seniority roster as of March 29. He asserted that all the employees on the list wished to return to work. The letter also remarked with respect to the Company's offer to return 50 employees immediately that the Union recognized that proposal as a "good-faith attempt" to begin the return to work which would "at the same time reduce [Respondent's] possible liability before the National Labor Relations Board." He asserted that the Union did not intend to negotiate away the strik- 12 Although neither the Union nor Respondent as fully aware of the desires of many of these employees, it is clear that Respondent's informa- tion, though vague, wsas to a large degree correct. It later sent letters to specific emplo ees offering them reinstatement The letters referred to Respondent's currenC belief regarding the striker's status (retired, accept- ed permanent employment elsewhere. etc ) and set a deadline hy which the striker should reply if he or she wished to return, More than 50 failed to answer ing employees' rights to return where the NLRB had "jurisdiction." The Union therefore agreed that those 50 should be immediately returned to work. On October 10 another bargaining session was con- ducted. The parties are in agreement that Saunders, with Lock's October 9 letter in hand, replied that the October 6 proposal to return 50 employees immediately was a "package deal" which included the other proposals and that the Union could not accept part and reject part. Moreover, Saunders asserted that the March 29 seniority list was not appropriate as they needed the names of people who actually wished to return. Lock replied that the Union was afraid to compile a new list because it feared it might make a mistake. Saunders said the Union agreed to furnish another list. Saunders said Respondent was compiling, as they applied, a list of employees who had offered to return plus a list of those people who had worked during the strike. He said Respondent would give a week's notice to people who wished to return. He said Lock asked for a list of people about whom the Company had evidence of violence and did not wish to take back. Saunders said a list would be prepared and provided. A discussion then ensued respecting the clerical duties performed by certain warehousemen including grocery load checkers, salvage clerks, receiving clerks, and in- ventory control clerks. These were duties performed by warehouse clericals but not on a regular basis and no em- ployee actually held those job titles. Respondent pro- posed that those duties be excluded from the bargaining unit. It also proposed that the contract provide for some flexibility with respect to schedule changes-up to a maximum of 2 hours change in schedule per week. It was during this meeting that Respondent actually presented its polygraph proposal. (See G.C. Exh. 27.) The proposal permitted Respondent to polygraph any employee or group of employees it "suspected of dishon- esty" and also provided for routine testing. Lock op- posed it as a "back door" way of resuming polygraph testing. Lock said that it was at this meeting that the Company again said it was taking seniority away from strikers and the loss would apply against the accumulation of sick leave and vacation benefits. He said this was the first time Respondent had explained how that loss would work in practice. The vacation and sick leave plans in the expired contract relied on seniority in different ways. Sick leave was based soley on seniority while vacation combined seniority with a credit based on the number of hours worked during the year. Saunders also said that the actual settlement of a contract was still contingent on dropping the instant charges. Later that day the Union organized an en masse return of employees. Approximately 130 exstrikers applied for reinstatement. That was followed on the next day, Octo- ber II11, by the Regional Director's issuance of his dis- missal of the decertification petition in Case 28-RD-314, relating to the warehouse unit. (Presumably the petition in the cash-and-carry unit was also dismissed on that date, though the record does not so show.) 49 DECISIONS ()t: NATIONAL L.AO)K RI.AI()IONS ()OARI) The next meeting was held on October 12. At that meeting the Union's position remained essentially the same as before. It wanted those individuals who had been convicted of felonies to be returned, but offered to arbitrate over them.25 It also wanted a list of the em- ployees involved in violence. Respondent gave the Union a list of people who had remained at work during the strike or who had been hired during the strike and who were still employed. Saunders said Lock also asked for consideration for older employees with respect to jobs they could not handle and Respondent agreed to offer them the jobs as they opened but to permit them to pass if they believed themselves unable to perform them. The Union also asked for information regarding replaced bargaining unit people during the period of April 12 through May IX together with the names of individtuais who replaced them. On the proposal regarding the right to change starting times, Saunders conceded to Lock that Respondent had not yet changed its schedules as contemplated but simply wanted the flexibility to do so. During this meeting, ac- cording to Saunders, Lock agreed that Respondent would not be obligated to pay the April 7 wage increase on a retroactive basis. He opposed excluding the clerk duties from the definition of unit work. The Union also agreed to review the proposal with respect to the jani- tors and pallet repair people and also the drivers' senior- ity rules. The Union withdrew its demand for recogni- tion in the maintenance employees unit as it had not gotten the additional authorization card. It also agreed to bargain on Respondent's polygraph clause proposal and asked for more information about it. Lock again stated that conditioning settlement of the contract on the reso- lution of the decertification petitions was inappropriate. Saunders reiterated that the petitions could still be rein- stated. Respondent continued its proposal that the former strikers were not to be credited with seniority for the amount of time that they had been on strike. Lock op- posed that position saying that the employees had suf- fered enough. Respondent also gave the Union a copy of its list of all those employees who had applied for work on October 10. On October 27 still another meeting was conducted. Saunders told Lock that Respondent was ready to dis- cuss issues covering the cash-and-carry unit and he also said the list of employees whom Respondent did not wish to recall was not ready and he agreed to furnish the Union with a list of employees who had quit. Lock said it was during this meeting that there was a discussion about giving older employees some relief over onerous jobs and Respondent agreed to accommodate those people as best it could. The accommodation was a form of permitting those people on the seniority list to pass until a job came open on their old shift. (Saunders said that had occurred on October 12.) During this meeting there was an agreement regarding the recall of garage mechanics. Respondent also agreed to the Union's re- quest to provide a list of resident drivers on the payroll 25 This is Saunders' testimony If he is correct here the Uiiont appear, to have returned to the position it held prior to September 29 wthe it made a shift more favorable to Respoindent as of March 29 who were still on the payroll and to pro- vide a list of meat employees who were laid off on Octo- her 13. The pay stub breakdown was clarified in order to show what amounts were being paid as straight time, overtime, holiday pay, and other related information. There was no agreement on the recall of employees. l.ock asserted that the employees should be recalled as if they wecre unfair labor practice strikers. Respondent countered that it was an economic strike and they would be treated as economic strikers. ()n November I another meeting was conducted. It was called principally to deal with the cash-and-carry unit although an attempt was made to straighten out some confusion over the driver's seniority rules. Accord- ing to Saunders that was abandoned because there were "too many cooks" and not enough knowledge. With re- spect to the warehouse unit, however, Saunders testified Respondent gave the Union four lists: those strikers who were ineligible for return due to strike misconduct; those strikers who had terminated themselves; the resident drivers; and meat department layoffs. Also at that time Lock gave Respondent the Union's counterproposal on polygraphing.- 6 In the cash-and-carry unit Respondent made a propos- al to deal with the problems of the cash-and-carry cash- iers. These individuals performed both supervisory and rank-and-file duties. According to Lock Respondent pro- posed to "do away with the bargaining unit function of cashiering"-indeed, it appeared to the Union that that had already occurred. Saunders explained that in the past the Union had by agreement permitted the supervisor to do bargaining unit work in order to permit him to get union retirement benefits. He explained that the change in duties really required the cashier-manager to abandon his cashiering duties in favor of management duties and caused Respondent to hire a new category of cash-and- carry cashiers. Respondent had already hired such indi- viduals but was paying them a lower rate than that pre- viously paid to the combination cashier-managers. The Union's original proposal. General Counsel's Ex- hibit 31, probably induced Respondent's action on the cash-and-carry cashiers, for the Union's third proposal on that exhibit provided that the agreement for nonbar- gaining unit people (supervisory personnel) to work in the nonfood area would be terminated retroactive to February 28. As this was confusing, Respondent agreed to provide the Union with a formal job description of the cashier's job. It actually did so at the next meeting. That meeting was held on November 9. Saunders first added a name to the list of individuals whom Respond- ent considered ineligible for return because of strike mis- conduct. Although the Union's original proposal was to modify the sick leave plan slightly, the bargaining proc- ess had left it unchanged until, on November 9, Re- spondent proposed a change. (See G.C. Exh. 33.) T 'he Uniro's counterproposal regarding polygraphs is el ltirth in (i C Exh 32 and periitted Respondent to colltilnue its practice of pol- graphing employment applicants hut also provided that the Company could require polygraph exammnittions of current employees if there was suhstantial evidence toI i dicate Ihe employee to he guilty of heft I lim itedl the scope off te examl I the inciden uder scrutiny and also prohihb- ited its seL as veildelnce iii :ln arhitration hIeariIg 50 ASSOCIATED GROCERS Saunders, observing that sick leave was based on senior- ity alone, without considering the hours worked by a claimant, and aware that a returning striker could imme- diately obtain a full 6-day sick leave credit for the time spent on strike, said that was unfair. He submitted a writ- ten proposal that the sick leave plan take into account the amount of hours worked as well. The proposal was designed to be consistent with the existing vacation plan. According to Lock, Respondent withdrew the propos- al it made on October 6 that 50 employees would return immediately. He said Saunders repeated that the contract was subject to the decertification petitions being resolved and the charges being withdrawn. He also said Saunders proposed that the same discharge and suspension articles as used in the warehouse contract be applied to the cash- and-carry contract. Similarly, the cash-and-carry con- tract was to contain the warehouse language covering annual reviews and vacations. Saunders testified that during the November 9 meeting they were able to nearly finalize the drivers' bid prob- lem. He also said that while the economic and nonecono- mic proposals remained essentially the same, Respondent wished to bargain further over the clerical jobs in the warehouse and as a result gave the union job descrip- tions of the duties assigned the warehouse checker and salvage room clerk functions. (G.C. Exhs. 34 and 35.) Respondent wished to take those duties from the ware- housemen. Respondent offered to include the custodian, janitors and pallet repair people in the warehouse contract rather than as a separate unit. Respondent continued to seek the authority to change the starting times, continued to stick with its own polygraph proposal, and while Saunders ad- mitted saying the contracts were contingent on the reso- lution of the decertification petitions he also testified that he told Lock that Respondent might drop those demands if they got to an impasse on them. Lock denies the last statement. In addition, Saunders testified, without Lock's dis- agreement, that Respondent dropped its proposal to dock strikers seniority credit for the amount of time they had spent on strike, except for sick leave (wanting it to be consistent with its proposal that day) but offered a pro rota adjustment on that. The parties were still in disagreement on the legal status of the strikers. Respondent said it would continue to treat the strikers as economic strikers and would return them in accordance with the rules pertaining to economic strikers. Saunders told the Union that it was using the Union's seniority list and that senior employees who did not wish reinstatement to jobs other than their own did not lose their place when they passed. He also advised that polygraphs had not been used at all since October 13 (although earlier he had said as a mandatory requirement the exams had ended on October 4).27 The last meeting was conducted on November 14 and solely related to the cash-and-carry unit. At that point there was agreement that the cash-and-carry contract would carry all the new benefits negotiated in the ware- house agreement. Nonetheless, there was no bargain "7 It i not clear whether the October 13 polygraphing was mandaJor or voluntary. struck because of the disagreement over the question of recall rights. Respondent continued to insist that it would recall people as economic strikers and observed it was doing so. The Union demanded the ouster of all strike replacements hired after May 17. saying that the strike had converted to an unfair labor practice strike at that point, and. even if it had not, the replacements . ere only temporaries. While there may facially appear to be a wide gulf be- tween Lock's and Saunders' testimony on bargaining in fact the differences are not great. I asked Saunders, who had carefully listened to Lock's estimon ,y to detail his differences with Lock. Aside from discrepancies on dates, Saunders challenged Lock's teslimon> in only a few instances. 2'" First. Saunders said he told Lock about Respondent's decision to cease potato bagging o either May 17 or June I, not September or October. Second, he says Lock omitted2" ' Saunders' statements on November 9 to the effect that neither the resolution of the decertifi- cation petitions or the withdrawal of the unfair labor practice charges would be allowed to block an agree- ment if one were actually reached. Third. he said Lock omitted the November 9 change in Respondent's position on docking strikers' seniority for the amounl of time the5 spent on strike. Thus, while I run the risk of oversimplifying the factu- al disputes, it is apparent that many of the Union's origi- nal demands fell by the wayside as the strike progressed By the time of the last meeting the Union was readtl to accept Respondent's April 7 proposal and \v ould have done so if there had been an agreement over returning the strikers to work. It is true that there remained some minor issues such as the Company's proposals with regard to the polygraph requirement and modifying, by both deletion and addition, work in the warehouse and cash-and-carry bargaining uniits Nonetheless, I think it reasonable to conclude that those substantive issues would not have deterred the par- ties from reaching agreement. In fact, both Lock and Saunders are in tacit agreement with that conclusion. F. Industrial Vehicle Testing John Lopez, Respondent's training supervisor since 1970, testified that beginning in 1972 Respondent estab- lished training and testing programs for its employees. The purpose of these programs was to require employees to demonstrate their ability to operate the equipment safely. According to Lopez actual testing on forklifts and industrial tugs began in 1974. The tests were principally given to new hires and were, he testified, an attempt to meet standards set forth in Federal regulations under the Occupational Safety and Health Act. To this end. he as- sembled study materials and drafted written and driving tests. " I the frllo,l g list I ha've omitted Saunders' a.scrtions about the May 17 meeting', reference o polygraphs ad his ren;mark Ihal I Splenl- her ad Octohtr L ck asked frer Joih de,.crptlilon, rcliitllg to artchusc clerk, anid cash-and- carry cashiers hut ncer hargaillzid about Ihcm 2! Aclill} I ock denied. rather han rmited.c hit s;li aunders ;s, ,oc curred 51 DECISIONS O() NATIONAL L.ABO()R RELI.A II()NS B()ARD Lopez testified that although it was his intention to eventually test all Respondent's employees who were driving forklifts or tugs, due to employee turnover, it was easiest and most efficient to test new hires. With the advent of the strike in early 1978 he said hc was unable to even do that because of the great turnover and emer- gency need to "get people operational." However, he re- sumed testing in early 1979. The test was the same as that which had been given earlier. Returning striker Bruce Anderson came back to work on November 16, 1978. Previously he had been em- ployed as a forklift operator engaged in line stocking. When he returned he was told he might have to take the industrial equipment test (he referred to it as the forklift test). Consistent with Respondent's policy of treating re- turning strikers as having the rights of economic strikers, Anderson was assigned a tug instead of a forklift and given a different shift and a different job to perform. Indeed, on the shift to which he was assigned the tug driver had specific production standards to meet. Forklift drivers did not have such standards. There is no allega- tion that this assignment was anything other than proper under the economic striker reinstatement rules. In February someone in a supervisory capacity told Anderson that he might be returned to the forklift upon his passing the test. He was given a manual to study and was only asked to take the written test. Nonetheless, he failed it. He admits he was offered a second opportunity to take the test but refused saying he did not want to. He was returned to tug duties and ultimately discharged for failing to meet the production standards required in that job. He testified that the operation of the forklift and the operation of the tugs are quite similar. It appears that the tug operates much like the forklift except without the lift capability. IV. ANALYSIS AND CONCUSIONS While the General Counsel's complaints are multifacet- ed and generally allege violations of Section 8(a)(1), (3), and (5) of the Act, their thrust is the contention that Re- spondent's establishment of the polygraph requirement for returning strikers violated the Act in several respects. An analysis of the three complaints, as amended, shows that much if not all of the remaining alleged illegal activ- ity of Respondent depends on a finding in the first in- stance that the institution of the polygraph test in June was unlawful. The General Counsel further alleges that if the polygraph was unlawful its use converted the original economic strike to an unfair labor practice strike. If that occurred then Respondent's admitted treat- ment of strikers seeking reinstatement would have been additional violations of the Act for it viewed each striker as entitled only to the rights of an economic striker. The only sections of the complaints which are inde- pendent of the polygraph/strike replacement issue are found in the complaint in Case 28-CA-5153 which prin- cipally dealt with conduct beginning in September, well after the Union's strike began to flag. However, two paragraphs in that complaint allege that Respondent had engaged in two earlier unlawful unilateral changes. The first is a claim that on June 27 Respondent unilaterally and without notice to the Union eliminated the jobs of potato baggers. The second alleges that Respondent uni- laterally and without notice to the Union changed the probationary period for new hires from 60 to 90 days. The allegations relating to the latter portion of the strike and the September-October negotiations accuse Respond- ent of unilaterally removing certain clerical functions from the warehouse unit, unilaterally removing cashiers from the cash-and-carry unit, and unilaterally testing in- dustrial truckdrivers. In addition, Respondent is accused of refusing to bargain by proposing to deduct strike time from the seniority of returning strikers, conditioning agreements in the two units on holding the elections sought by the two decertification petitions, and condi- tioning an agreement on the withdrawal of the unfair labor practice charges. Finally, there is an allegation that beginning in September Respondent made a number of changes in its proposals. All of this, alleges the General Counsel, amounts to "surface bargaining." During the course of the hearing counsel for the Gen- eral Counsel refined the threshold theory. He stated: The General Counsel's whole theory is that the polygraph test is imposing [an] unlawful condition upon the reinstatement rights of strikers whether you label them temporary or permanent strikers, that doesn't matter now. Having made an uncondi- tional offer for reinstatement the Respondent has the burden to reinstate the individual; absent some affirmative defenses, requiring the individual to take a polygraph test, which we deem to be an unlawful condition, does not fulfill Respondent's affirmative action in terms of an unconditional application for reinstatement. He goes on to say that all of the strikers are discrimina- tees (except for a named few who lost their protected status)-including people who took the polygraph test and failed it, people who took the polygraph test and passed it, and people who did not take the test. The only difference with respect to each of these categories is the appropriate remedy and the amount of backpay due each. In their brief, the General Counsel's representatives further argue that the imposition of the polygraph test was "inherently destructive" of the right to strike as guaranteed in Section 7 of the Act. Alternatively, they argue that it was a reprisal against those who engaged in the strike and in any event was applied unevenly as non- strikers were not obligated to take the test. The first question I must answer is whether or not po- lygraphing returning strikers to test them to determine whether or not they engaged in strike misconduct or knew about the strike misconduct of others can be in and of itself an unfair labor practice and if so whether or not it is "inherently destructive" of the statutorily protected right to strike. The question must be answered in the context of the strike itself. This strike was marked by extensive violence which Respondent tolerated from its inception on April 12 until June 5. At that point the violence had escalated to a point where it may be fairly said that Respondent was under siege. The entrances to the facility were being sab- otaged; persons who were entering and exiting were 52 ASSOCIATED GROCERS being subjected to harassment, physical attacks. and sab- otage; on May 23 there was an arson incident; and be- tween May 30 and June 2 there were a series of shoot- ings. Many of the incidents were of a clandestine or hit- and-run nature and Respondent had no idea who the per- petrators were, how they might next act, or where they might engage in similar acts. By then some of the strikers were beginning to filter back to work and Respondent, as testified to by President Nichols, could expect contin- ued violence on the outside but could also reasonably fear that a returning striker might insinuate himself in the plant and become either a saboteur or an agent provoca- teur. He feared, rightly, that someone might shortly be killed. Accordingly, Respondent decided to expand its use of the polygraph in the hope that it would identify those who had engaged in misconduct, deter those who had engaged in misconduct from returning, and deter those who had not yet engaged in misconduct from doing so. As Justice Roberts stated in :V.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S. 333, 345 (1938): Although § 3 [of the NLRA] provides, "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike," it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to pro- tect and continue his business by supplying places left vacant by strikers. An employer may not, however, go beyond what is nec- essary to protect itself in that circumstance. Chairman Fanning has stated, "When employee rights under the Act conflict with those of the employer, the employer is entitled to respond; but the response must be no more than sufficient to a legitimate business objective."3 0 While it may be fairly observed that the Chairman's statement was made in a context dealing with an alleged reprisal against strikers and while Judge Friendly's remark, which Chairman Fanning paraphrased, dealt with the employer's right to replace strikers, nonetheless the logic has close application here. The only question is whether Respondent's response to the violence exceeded reasonableness under the circumstances. Approaching the same problem from a different point of view in Medicenter, Mid-South Hospital, 221 NLRB 670, fn. 2 (1975), then-Chairman Murphy, in a polygraph context, stated: She would not have found a violation in any event since . . the widespread sabotage and vandalism of the hospital facilities that were occurring daily created an emergency situation excusing or justify- ing such unilateral action as a temporary measure to try and bring that situation under control. For that proposition she cited .L.R.B. v. Cone Milkl Corporation, 373 F.2d 595 (2d Cir. 1967), and Newi York Mirror, Division of the Hearst Corporation, 151 NLRB 834 :' See the Chairman's concurring opinion in trh Ch vr n I 'Si.. Inc . 244 NLRB 1(181. fn 32 (1979). citing Chief Judge Frtiendl s' deci.ion in I d I Bitih Co Plant :f d.the at tc Lace and Ic!lc )i v / Indian Ilead. Inc v .L RB.. 45t F 2d 357 (2d Cir 1972) (1965). See also N.L.R.B. v. Katz. aL., 369 U.S. 736, 747 (1962). Whether one analyzes the issues as a question of over- reaching ill seeking self-protection as it appears Chair- man Fanning would, or whether one analyzes the prob- lem as one of an emergency justifying unilateral activity as apparently then-Chairman Murphy would, the result is the same under the facts extant here. Respondent did no more than to forcefully pour oil on troubled waters. That act protected its ability to operate its business free of serious illegal harassment and had the tendency to deter additional violent acts. Its requiring returning strik- ers to take the polygraph test in no way impeded their right to engage in a lawful strike nor was it a reprisal against their strike. If it is regarded as an emergency measure, it did no more than isolate the perpetrators of unlawful conduct (hether by their admission or by their failure to pass.)3' The only thing it discouraged was strikers' unlawful conduct. It may well be that the use of a polygraph, rather than traditional investigative methods, was unique here. None- theless, no state law prohibited its use.3 2 Indeed the Na- tional Labor Relations Act does not prohibit its use per se. s To the contrary, the Board has held in Medicenter, supra, that a polygraph examination is a mandatory sub- ject of bargaining. Thus, to that extent at least, the Board has held lie detector tests to be a permissible tool in the field of labor relations. I cannot accept, therefore, the General Counsel's assertion that the use of the polygraph "I Respondent', prcsileni. Nichols, made the decisin to deny or grant reinstallemen t hoe individuals w ho failed the lie delcctor test Of the seven empliyees for vshhom Nichols denied reinstatement. the General Counsel stipulated thai what they aid during their examinaion was true Six (Updcgrve HBennett, Ncalis, Karch. and Mendevil) nIade admissions sith respect to their involvemenit n strike iolence Another employee. Ebarh, was not reinstated because he attempted to sell cigarettes taken from Respondent to a merchant in Tucson (See belo ) Updegrove was reilstated later ln Nichol,' belief that he as readily influenced hb others Aside fronm thcir admissions, Nichols also relied on the "decep- tivenes," hich an employee may have shown while connected to the instrument While four of these people are named Im the complaint as discriminia- tces, the (a)(3) iolatlion sith respect to( then (Bennett, Eharb, L'pde- grove and Karch) was bottomed on their answers given during the alleg- edly illegal examination. Whether these fur, and the remaining three. were discharged because they had actually engaged in ni,conducLl a, not truly litigated The General Counsel argues that an unlawful motive should he fiound with regard to the polygraphing system because each employee who un- dervcnt it was asked questi,r ranging beyond strke-relaled iolence Those questions dealt with uch martter as dishonesty. theft, and use of drugs (ir liquor on the job These matters would be of ioncern if a strik- er's admissions to such transgresions affected his reinstatement See Markh, Manufacturing Companvy o San Antonio, 239 NLRR 114 1979 Holsecr, there is lio exdence that any striker vs as dented rcilnstaitlmenl because of Inontrike related misconduct The olnl> possible xception to that swould be Ehbarh Een so. prior to hi, being polsgraphcd Respond- ent already had acquired evidence, submitted by a Tucson merchant and confirmed through tax stamp records, that Eharb was selling cigarettes vhlch had come from Respondent's warehouse. Hlh polygraph readinig had ot lhing to do with Respondent's decislon I, terminate him `2 See Craver. "The Inquisitorial P'rocess It Pr'ralte Emph ment''" 6 Co rn I. Rev 29. fit 124 (177). fr a recent listing of slate laws regulat. Ing the use of lie detect r teIst in employ ment. Arizona lauv does not pro- hibit such tests. :'' This i 1l ii sa! that It I Loe voIild not e illegal if it were neing Usied as u reprisal againl c Ncmpl !e". vs ho hast cengaged in al actis it prto- tecied h\ the Act 53 I)DECISI()NS ()F NATIONAL LAB()OR RELATIONS BOARD examination here was inherently destructive of the right to strike. As the Board has mandated parties bargain on that topic if one party insists, it seems anomalous to take the position that the topic is "inherently destructive" of a statutory right, and I am not willing to draw that conclu- sion. That is particularly so here, where Respondent's action was designed only to protect itself in an emergen- cy. Recently the Board in Harold L. F'leenor Jr. d/b/a 7- Eleven Food Store, 242 NLRB 104 (1979), said it was not a reversible error in the context of that case to deny re- ceipt of evidence tending to show the "inherent coer- civeness" of polygraph tests. In most respects that case is unlike this one, but the Board's statement appears to ex- press doubt that polygraphs are inherently destructive of Section 7 rights. Better evidence that lie detector tests are not inherent- ly destructive of such rights comes from this record itself. First, when Respondent made its polygraph pro- posal, the Union, recognizing its obligation under Medi- center, supra, sought further information and made a counterproposal. Its counterproposal accepted the poly- graph as a concept although the Union wished to limit its use. It made no protest that the test was coercive. Second, the testimony of the witnesses, although there is some variance, does not in objective terms conclusively show coercion. Indeed, of the 12 who testified (omitting Veach and Conroy, who were not truly seeking rein- statement) none flatly objected to the polygraph per se. Most were deterred from returning by other factors: e.g., fear of violence or union loyalties. Only three expressed opposition to the test, but their opposition was mixed with other reasons for not wishing to return. One gave such equivocal answers that his reasons cannot be deci- phered. The sum here is that even if there is an emotion- al discomfort associated with the test it is not inherently coercive of the right to strike. It is of course possible that a violation could be found even if the polygraph is less than "inherently destruc- tive." As the Supreme Court said in NL.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967): if the adverse effect of the [allegedly] discriminato- ry conduct on employee rights is "comparatively slight," an anitunion motivation must be proved to sustain the charge if the employer has come for- ward with evidence of legitimate and substantial business justifications for the conduct. If I assume that the polygraph did have a "compara- tively slight" adverse effect on the right to strike, it is clear that Respondent had a legitimate and substantial business justification for polygraphing returnees, that of cooling off a hot, violent siege. Moreover, the General Counsel has failed, at this stage of the strike, to show an antiunion motivation. Thus, even under the "less than in- herently destructive" analysis no violation has been shown. It is no answer to say, as the General Counsel does, that the polygraph was applied only to strikers rather than nonstrikers and therefore must be an illegal reprisal for it was disparately applied. In this case it was totally reasonable for Respondent to have concluded that its striking employees, rather than its nonstriking employees, were the root of the violence. To turn that analysis into a disparate application of the polygraph examination to warrant the conclusion that the strikers were being dis- criminated against is a legal contortion which is not justi- fied. Accordingly, I conclude that Respondent had a substantial business justification in requiring its returning strikers to submit to polygraph examinations and that the test was neither inherently destructive of the statutory right to strike nor was it applied in a manner shown to be designed to punish employees for engaging in that right. It follows therefore that Respondent's unilateral implementation of the polygraph testing system did not violate the Act and that it did not convert the strike to an unfair labor practice strike. There remains for consideration the question of wheth- er or not Respondent violated Section 8(a)(5) of the Act in any other manner. With respect to the elimination of the produce packagers it is clear that the Union was on notice at least by July 14 that the Company had gone out of that phase of the grocery wholesaling business. On that date copies of Respondent's layoff letters to the pro- duce packagers were sent to the Union's chief negotiator, Lock. In footnote 8, supra, I observed that Saunders probably informed Lock either on or before June I that the potato baggers' jobs were shortly to be eliminated. Lock's testimony that he did not learn of that decision until September or October upon the resumption of bar- gaining may well be ccurate in the sense that he may not have grasped the meaning of the June I statement or may have been unaware that the July 14 letters had been sent. That, however, is not due to Respondent's failure to meet its statutory obligation to notify the Union. Both Saunders and the letters clearly accomplished that. However, the complaint may, though it does not clear- ly do so, be read to allege that Respondent failed to bar- gain over its decision to discontinue the produce packag- ing. I am unconvinced that it had an obligation to do so in view of the Board's decision in Summit Tooling Com- pany and Ace Tool Engineering Co. Inc., et al., 195 NLRB 479, 480, fn. 4 (1972). In that case the employer unilater- ally discontinued a product line but the Board held the employer was not required to negotiate over the decision to terminate it. Similarly, Respondent merely discontin- ued packaging potatoes which I view as directly analo- gous as discontinuing a product line. In that circum- stance Respondent was under no obligation to bargain over its decision to terminate that portion of its business. Moreover, Respondent was willing to bargain over the effects the closure would have on those employees who served as potato packagers and offered to do so. Indeed, early on, when it came to the question of reinstating strikers, it did not reject the concept of reinstating the produce packagers to other positions so long as their recall did not affect the higher reinstatement rights of employees whose jobs had not been eliminated. With respect to the allegation that Respondent unlaw- fully changed its probationary period from 60 to 90 days during the course of the strike, I likewise conclude that Respondent has commited no violation of the Act. Arti- 54 ASSOCIATED G R()'I:R cle 4 of the expired collective-bargaining agreement set forth a 60-day probationary period for new hires. That agreement expired on February 28 and was not extended. When the strike began on April 12 Respondent began hiring replacements. At some point, not clearly shown in the record, it changed the policy granting its newly hired employees a 90-day probationary period. In addi- tion, because the health-and-welfare plan negotiated by the Union was also not operating, it permitted the strike replacements to take advantage of its health insurance plan then applicable to nonunit employees. That plan re- quired an employee to be employed for 3 calendar months before becoming eligible. In a sense, then, by ex- tending the 90-day probationary period Respondent made it approximately coterminus with eligibility for the health plan.34 There is no claim that Respondent en- gaged in any misconduct with respect to its handling of the health-and-welfare situation. Respondent, however, does not cite that as the reason for its decision to extend the probationary period from 60 to 90 days. Instead, it argues that the Union was aware of the change and its failure to bargain over the topic constitutes a waiver of its right to do so. It is clear that a probationary period is a mandatory subject of bar- gaining and normally a failure to bargain about a change in such a topic, particularly where it has been reduced to contract form, would be unlawful. I am, therefore, not particularly persuaded by Respondent's argument that the Union waived any rights with respect to it. Nonethe- less, there are a number of defects in the General Coun- sel's allegation. First, it has not clearly been shown when the policy was changed; the complaint alleges that the change occurred on June 27 and Nichols' May 10 letter refers to a 90-day probationary period. If May 10 is the date the policy was changed it is outside the scope of Section 10(b) of the Act. There is no evidence that the Union was unaware of it. Second, the change appears to be not a detriment to the bargaining unit; if anything, it is more likely a benefit. It occurred at a time when Re- spondent was hiring strike replacements and, had the strike been less than 90 days, may have been used as a means of ousting strike replacements in favor of return- ing strikers. Thus, the returning strikers would have had an additional 30 days to get their jobs back. Conversely, of course, it may be argued that it gave strike replace- ments a longer time in which to learn their jobs, thereby reducing the risk of discharge for failure to become pro- ficient. Even if that argument is accepted, assuming that the policy were to remain the same after all the strikers returned, the 90-day benefit would then extend to new hires who were not strike replacements but who would have come from the same community mix as in nonstrike circumstances and those employees would have been given 30 days additional time to learn their jobs. In con- sideration of these factors, particularly that it is in all probability more of a benefit than a detriment and be- cause it had no impact on the course of bargaining, or length of the strike or on the amount of bargaining unit 3' For those who were hired on the first of a month, the 90 days was nearly exactly the ame as 3 calendar months. For those unfortunate enough to have been hired toward the end of a month their wail for health coverage would be almost 4 months work, I do not believe it is a violation of Section (15) of the Act. FVen if i it is a remedial order is not .arranit- ed. Such an order is certainl y not warranted in renmedvinl the probationary period issue w hen one takes into con- sideration the fiact that the deeertiitcationl petition co\cr- ing the wareh use unit w as filed on June which a as 18 days before the date the eneral Counsel alleced the violation occurred. Indeed, that is a problem \, hich faces all of the remaining allegations accusing Respondent of refusing to bargain. In various ways those all cliarg Re- spondent. beginning with the Septenmber 28 meeting of refusing to bargain in good faith. As the cash-and-carr decertification petition as filed on August 28 the sanie can be said for that unit as well. It is well settled, of course, that an incurnhent uionr enjoys the presumption of majority satus during the course of a contract term. but the presumption may be rebutted upon the expiration of the agreement. Barring- ton Plaza and Tragniew, Inc., 185 NI.RB 962 (1970). en- forcement denied on other grounds uib norn. .N.I .R.B. Tragniew. Inc. and Consolidatled HIotel o Caljoirniu, 470 F.2d 669 (9th Cir. 1972). The presumption can be rebut- ted by evidence showing that the labor organization has lost its majority status (Celantese Corporation o.l-tmerica 95 NLRB 664 (1951) :' }) or by a reasonablx based doubt as to the continued majority status of the union, so long as there are objective considerations on which the em- ployer may rely and if the atmosphere is free of unfair labor practices. See Guerdon Industries, Ic., 4rtmor Mobile Homes Div.. 218 NLRB 658 (1975), and N.u-South- ern Dyeing & Finishing. Inc., and enderson Combining Co., 179 NLRB 573, fit. 1 (1969), cnfd. in part 444 F.2d 11 (4th Cir. 1971). The presumption may also be rebutted by the raising of a question concerning representation through the filing of a properly supported petition pursu- ant to Section 9(c) of the Act. See Telautograph Corpora- tion, 199 NLRB 892 (1972), following Shea Chemical Corporation, 121 NLRB 1027 (1958), a case which was arguably distinguishable as involving rival unions. To clarify its view that there is no distinction between cases involving rival unions and cases involving employee at- tempts to oust an incumbent the Board said the rules should be the same where a question concerning repre- sentation has been raised by the timely filing of a decerti- fication petition. In that circumstance the bargaining ob- ligation ceases until the question concerning representa- tion has been resolved. Turbodyne Corporation. Gas ur- bine Division, 226 NLRB 522 (1976), and ernon Maanu- faclturing Company and Spencer Industries, 214 NLRB 285, 287 (1974), reaffirmed 219 NLRB 622 (1975). Where the bargaining obligation halts upon the raising of a question concerning representation, that obligation ends with respect to unilateral changes as well. Vernon Manfacturing Company, supra, and Ellex Tran.sportation. Inc. (Formerly Hugh Breeding, Inc.), 217 NLRB 750 (1975), each of which involved a decertificationi petition. See also Upper Mississippi Towing Corp., 246 NLRB No. 41 (1979), citing The Freemanu Company, 194 NLRB 595 - Sec alIro rB t v . 1. R iB.14 4 L S 9 114. 11, Ii '1 4) 55 D:DECISI()NS ()OF NATI()NAL. LA()R RII.AI IO()NS BOARI) (1972), and Paramount Paper Products Co., 154 NL.RB 1064 (1965). These principles clearly have application in the instant case as the warehouse decertification wvas filed on June ) which was well before the bargaining miscondut as al- leged. But the General Counsel avers that no majority question is presented by the decertification petitions be- cause Respondent admitted in its answer that the Union was the majority representative at pertitnent times. Frank- ly, that argument begs the question. Respondent un- doubtedly was aware that the Union enjoyed a presump- tion of majority under Barrington Plaza, yet it possessed no objective considerations showing the Union's loss of majority. Thus, Respondent was not prepared to chal- lenge the Union's majority status. Moreover, its answer is consistent with its argument throughout the case that it had no interest in ousting the Union as the employee representative. That is not to say, however, that it would stand in the way of an employee-raised question concern- ing representation. Indeed, its stance during the October and November bargaining was that it would continue to bargain with the Union and hopefully reach a contract, though one could not actually be implemented until the decertification petitions were resolved. Respondent therefore was walking a narrow path between the Union on the one hand, wishing to reach an agreement if it could, while at the same time not treading on the rights of employees who sought a representation election to reexamine the Union's majority status. When the General Counsel determined that an 8(a)(5) complaint was warranted on the question of polygraph- ing strikers the Regional Director dismissed the decertifi- cation petition. He did not dismiss it on the ground that there was a showing of interest insufficient to warrant an election; rather he dismissed it on the basis that he be- lieved Respondent's polygraphing returning strikers was unlawful and that a question of representation could not be raised. As I have found that not to have been the case, it follows that the decertification petitions had va- lidity for I must presume that a sufficient showing of in- terest had been made. If such a showing had not been made the petition would have been dismissed on that ground instead.3 6 Thus, I conclude that a real question concerning representation was raised both in the ware- house and in the cash-and-carry units by the filing of the two decertification petitions because they were not pre- ceded by any unfair labor practices committed by Re- spondent. Real questions concerning representation having been raised by the petitions it follows that Re- spondent's post-petition conduct is not cognizable under Section 8(a)(5) of the Act for it was under no obligation to bargain until the question was resolved. These allega- tions are therefore without merit and should be dis- missed. Even so, the merits of the post-petition allegations are doubtful. First, while it is unlawful to insist to impasse on a nonmandatory bargaining proposal (N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958)), it does not appear that Respondent did so. If any :" Seec Sec 101i18 of the Board's Rules and Rcgulatlions Series 8, .s amended impasse existed by November 14, the date of the last bar- gaining session, it was over the back-to-work issue, not over the nonmandatory subject of withdrawing the unfair labor practice charges. Thus, it is unnecessary to determine the relative credibility of Saunders or Lock on that topic. 7 Second, upon resumption of bargaininig Respondent proposed the removal of certain warehouse work from the untit. That was a mandatory bargaining subject aind Respondent engaged in no misconduct with respect to it. Saunders explained Respondent's reasons and provided the Union with the information it then sought. Lock's testimony that Saunders on October 10 told him those functions had "already" been removed from the unit does not establish a ait accompli. It does not show to whom the work was given, the amount of lost work. when it occurred, or if it was the result of changed cir- cumstances caused by the strike. All of that is guesswork on this record, Even so, it appears to me that Respond- ent gave the Union full opportunity to bargain over the topic. Third, Respondent's removal of the combination man- ager-cashiers from the cash-and-carry unit was within its prerogative under Board law. Those individuals were su- pervisors and bargaining over supervisors is a consensu- al, nonmandatory matter. By refusing to allow bargain- ing over the combination manager-cashiers Respondent was effectively withdrawing that consent. Under well- settled principles of Board law it was privileged to do so. KONO-T7V-Mission Telecasting Corp., 163 NLRB 1005 (1967); flousion Chronicle Publishing Company, 194 NLRB 1154 (1972). Cf. National Fresh Fruit & Vegetable Co., 227 NLRB 2014 (1977),38 where the Board said, in the converse situation, that a party seeking to bargain over a nonmandatory subject violates Section 8(a)(5) of the Act by persisting in demanding acceptance over the other party's objection. Moreover, Respondent's action here was consistent with the Union's original proposal to cancel a side agreement permitting managers to do cash- iering. The removal of the managers from cashiering did not eliminate the function-new employees were hired who were to be unit members. While Respondent hired these people and set up new wage rates for them the record does not show when that occurred or whether the rates were objectionable. Respondent on resumption of negotiations did offer to bargain over those people, but the Union did not pursue the matter. Fourth, the industrial truck tests which Respondent re- sumed administering in January 1979 was a preexisting practice which had been disrupted by the strike. It was a'7 The two cases cited by the General Counsel are not apposite in any ceent Sltacpohl Comriponelnt C. 232 NRH 723 (1977), and Star Maunu- actruring Compy),. Ditsion o Star orge, Ic. 221) NLRB 582, 5t9 (1975) In those cases the tactic of conditiolning a colleclive-hargainirig contract o(i the withdrawal of unlair labor praclice charges occurred a, one of sereral devices by hich each employer vias attemptilng to avoid ;a coltract That did not occur here ad esen if Lock is I11 he credited Respondcnllt proposal appears to he simply a prop os ;al to reach a coin oti quzid pro to the effect that if t agreement is reached all aceusa;- tilnls w"ould he dropped ill order that a new cotlllract term could begill afresh aid Ailhout past recrimilations. Conmpare LU'ired .ltletorArvs of .Irercau. L.(oca .\; 1854 i. t.14.IA (aCoul Compay, 238 NRB 1583 ( 1978). a 'niforcellent dlied ,iI other grounds 5h65 F 2d 1331 (Sth Cir 1978) 56 ASSOCIATED GROCERS not nor was it so alleged, a reprisal against returning strikers. Indeed, in Anderson's case it appears Respond- ent wanted to assist him in returning to his forklift job. He had been assigned, as a returning economic striker, to be a tug driver. Respondent's offering him the test to- gether with an implied promise to return him to forklift driving upon his passing was not a detriment to him. When he failed, he was even offered another chance, but refused. Finally, the question of docking strikers' seniority for the period of time they were on strike is also not of sig- nificant merit in this context although the concept is gen- erally repugnant and is inherently destructive of Section 7 rights. IV.L.R.B. v. Erie Resistor Corp., et al., 373 U.S. 221 (1963). Yet, it is not clear that Respondent ever docked anyone's seniority. The only evidence on the subject is Respondent's April 10 prestrike memo3 9 and its strike settlement proposal of September 28, refined on October 6, but withdrawn altogether on November 9. Lock did not testify that the proposal had any impact on the course of bargaining during that period-bargaining principally dealt with the back-to-work rights of strik- ers-and there is no evidence that any employee actually lost seniority. And, Respondent continuously adhered to the May 17 proposal providing for normal seniority to be retained and used in recall. It appears to me, therefore, that while Respondent flirted with a violation of Section 8(a)(3) and (1) of the Act here it has not been proven. Even assuming proof of that violation, the General Counsel is still a step away from proving an 8(a)(5) vio- lation over the proposal itself. The case cited by the General Counsel, Griffin Pipe Div. of Griffin Wheel Co., 136 NLRB 1669 (1962), enfd. 320 F.2d 656 (7th Cir. 1963), is similar, but distinguishable. There the employer insisted on inserting the super-seniority provision in ques- tion into the contract. No such insistence occurred here, though Respondent did not withdraw the proposal until November 9, after four more negotiation sessions.40 I am doubtful, therefore, that a violation of Section 8(a)(5) of the Act has been proven. That is particularly apparent when one observes that bargaining continued thereafter. One more observation should be made about the Sep- tember-November bargaining period although I have al- luded to it previously. That is the question of what caused the impasse of November 14. When bargaining a3 The memo is not alleged to be unlawful 4 0 In any event the proposal did not prolong the strike as alleged for the strike ended on October 5, 5 days after the proposal was made resumed in September the Union's entire thrust related to getting all the strikers back to work at once. It utilized a number of tactics to accomplish this purpose: straightfor- ward proposals, attempting to accept part of a counter- proposal; and, finally, insisting that the strikers were enti- tled to be recalled as unfair labor practice strikers. Every other proposal was secondary and Lock and Saunders agree that those problems would have been easily re- solved had there been a back-to-work agreement. In that circumstance it is fair to conclude that the failure to reach agreement on the back-to-work issue was the sole reason bargaining broke down and that the other reasons cited by the General Counsel are of no significant weight. Thus, they did not contribute to the November 14 impasse in any real way. Moreover, the fact that Re- spondent would not budge on its back-to-work proposal of May 17 is not necessarily evidence of bad faith. One may not equate a refusal to recede from an announced position advanced in good faith with an unlawful refusal to bargain unless there is a showing that the employer was not sincerely trying to reach an agreement. Division 1142, Amalgamated Association of Street Electric Railway and Motor Coach Employees of America, AFL-CIO (Con- tinental Bus System, Inc.), 294 F.2d 264, 266 ( D.C. Cir. 1961). There has been no showing that Respondent did not desire to reach a contract with the Union. Accord- ingly, even absent the question concerning the represen- tation issue and, the decisional rationale followed supra, I would find Respondent did not violate the Act as al- leged. Therefore, I find that the evidence presented by the General Counsel in support of the contention that Re- spondent violated Section 8(a)(5), (3), and (1) of the Act fails to support such a conclusion. Based on the foregoing findings of fact, and the record as a whole, I hereby make the following: CONCt.USIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] 57