Roberts Oldsmobile, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberts Oldsmobile, Inc. and Local 259, United Automobile Workers, affiliated with United Automobile, Aerospace and Agricultural Imple- ment Workers of America. Case 2-CA-16435 September 16, 1980 DECISION AND ORDER On April 15, 1980, Administrative Law Judge James F. Morton issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in support of the Administra- tive Law Judge's Decision and a brief in opposition to the exceptions. 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,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Producs, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. In adopting the Administrative Law Judge's finding that the striking employees' oral offer to return to work was conditioned on the discharge of striker replacements and the reinstatement of employee Velez, we em- phasize that the Administrative Law Judge specifically credited testimo- ny that the offer was so conditioned and discredited testimony to the contrary. a We agree with the Administrative Law Judge that Respondent's pro- posed strike settlement agreement, which included a provision for the withdrawal of unfair labor practice charges, in the circumstances here could not reasonably have been construed by employees as a restriction on their right to avail themselves of the Board's processes, and therefore did not violate Sec. 8(aXl) of the Act. However, Chairman Fanning and Member Jenkins disavow the Administrative Law Judge's alternative finding that, even if that specific provision were violative of Sec. 8(aX1) of the Act, no remedial order would be warranted. Member Penello finds it unnecessary to pass on this alternative finding. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge: This case was heard in New York, New York, on December 5, 6, 7, and 19, 1979. Upon an unfair labor practice charge filed by Local 259, United Automobile Workers, affiliated with United Automobile, Aerospace and Agri- cultural Implement Workers of America (herein called the Union), a complaint issued against Roberts Oldsmo- bile, Inc. (herein called the Respondent) alleging that it violated 8(a)(l), (3), and (5) of the National Labor Rela- tions Act, as amended (herein called the Act), by having refused, from May 7, 1979, to about June 15, 1979, to re- instate 12 of its striking employees upon their uncondi- tional offer to return to work and by instead requiring that the Union first agree to withdraw unfair labor prac- tice charges it had filed with the Board, and to agree also to a maintenance-of-membership clause in the con- tract then being negotiated. Respondent asserts that no unconditional offer to return to work had been made. It contends that the Union's offer to return the 12 striking employees to work was expressly conditioned on Re- spondent's reinstating a discharged employee, Pepe Velez (the alleged discriminatee in a then pending unfair labor practice charge), and upon the termination of all striker replacements. It further contends that its counter- offer to the Union that it would put the striking employ- ees to work upon withdrawal of that charge and upon acceptance by the Union of a maintenance-of-member- ship clause was, in context and albeit an awkward one, an effort on its part to induce the Union to remove the conditions the Union had placed on its offer. The com- plaint further alleges, and Respondent denies, that the strike had been converted from an economic strike to an unfair labor practice strike by reason of Respondent's al- leged unlawful acts. It is unnecessary to decide that matter as it is uncontroverted that the striking employees had been offered reinstatement without qualification on June 15, 1979. I have considered the entire record in the case, the oral arguments made at the hearing, the briefs filed by the General Counsel and by the Respondent, and the de- meanor of the witnesses at the hearing. Based on these considerations, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union is a labor organization as defined in Section 2(5) of the Act. ' II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is engaged in the retail sale and servicing of automobiles and related products in Stamford, Con- necticut. On October 18, 1978, the Union was certified by the Board as the exclusive collective-bargaining rep- resentative of its approximately 15 service department employees. There were about nine negotiating sessions between then and the start of a strike on April 5, 1979, by most of Respondent's service department employees. The first session was devoted to the presentation of the Union's contract demands. The second and third sessions These findings are based upon allegations in the complaint which have been admitted by Respondent in its answer. 252 NLRB No. 35 192 ROBERTS OLDSMOBILE INC. were concerned solely with the Union's efforts to have the Respondent reinstate Pepe Velez, a service depart- ment employee who had been discharged. The remaining sessions involved discussions of contract terms, including the Union's insistence on a union-security clause and Re- spondent's rejection of that proposal. By April 5, 1979 (all dates hereinafter are for 1979) impasse was reached and the strike began. From then and until April 25, there were no discussions between Respondent and the Union, other than brief conversations between Respondent's of- ficials and the picketing employees on the picket line as discussed below. On April 25, Respondent's attorney, William Fitzger- ald, took the initiative towards breaking the impasse. From then and until June 15, the parties talked to each other by telephone, sent letters, exchanged telegrams and mailgrams, and engaged in direct talks-all of which produced offers, rejections of offers, alleged unlawful offers, modifications of offers, and purported acceptances of offers apparernly revoked prior to acceptance. Both sides contend that each reneged on agreements previous- ly reached. Three basic issues are posed. The first is whether the Union made unconditional offers by telegrams to Re- spondent on May 4 and on May 16 on behalf of the strik- ers to return to work. The second is whether the strikers made an oral unconditional offer to return on May 7. The third is whether Respondent insisted on the with- drawal by the Union of unfair labor practice charges as a condition precedent to reinstating the strikers and wheth- er such alleged insistence was tantamount to a discharge of the strikers or was otherwise violative of the Act. B. The Events Between April 25 to May 7 i. Respondent's efforts to end the strike Respondent's attorney, William Fitzgerald, testified at the hearing that on April 25 he telephoned the Union's office and left a message with its president, Samuel Meyers, to call him. This was the first step taken by either side to break the impasse which began with the advent of the strike on April 5. Meyers returned that call that same day and told Fitzgerald that the strikers would return to work as soon as a contract was negotiated. On the following day, Fitzgerald spoke with Meyers again by telephone and advised him that Respondent would take the strikers back immediately and urged him to return to the bargaining table. (Fitzgerald termed this as an "offer" by Respondent, apparently as replacements had been hired and apparently as an assurance to the Union that Respondent would actually employ the strik- ers if they returned and not simply put them on a prefer- ential hiring list.) Meyers did not testify at the hearing to rebut the foregoing testimony by Fitzgerald. The Union's business agent, Joseph Lewis, who was responsible to the Union for representing the service department employees of Respondent, testified that he had no knowledge until the hearing of any such conversations between Fitzger- ald and Meyers. Fitzgerald signed a letter dated May I and which he testified was probably mailed on the morning of May 2 to the attention of Lewis at the Union's office in New York City. That letter recited that the Union had reject- ed Fitzgerald's offer in the preceding week "to take the men back to work . . . and resume negotiations where we left off." The letter further stated that Respondent makes a new offer to take the men back on May 7, to resume negotiations where they were left off, and, mean- while, pay the men a "200 floating guarantee." The record does not disclose what their previous guarantee had been but it is fair to assume either that the earlier guarantee was lesser in amount or that there was none. Fitzgerald testified further that on May 2 Respondent's president, Robert Marandino, instructed him to revoke the proposals contained in the May I letter because one of the picketing employees had told Marandino on May 2 that they would not work alongside the replacements and would not return until Pepe Velez was reinstated.2 Thereupon, Fitzgerald sent a telegram on May 2 to the office of the Union's attorneys (and not to the Union's office where the May I letter had been sent) stating that the offer made in his "May 2" letter was revoked. Fitz- gerald in fact had never sent a letter of May 2 but he testified that his reference to a May 2 letter was a mis- take and that he intended to revoke the terms of the letter dated May 1 which had been mailed on May 2. 2. The alleged unconditional offer to return of May 4 On May 3, according to the Union's business agent, Joseph Lewis, he called Fitzgerald. Fitzgerald testified that the first call he received that week from Lewis was on May 4. Lewis testified that, as of May 3, he had not received either the May I letter or the May 2 telegram revoking it, that he had no knowledge of either commu- nication then and that no reference to them was made in the course of any of his telephone discussions with Fitz- gerald. He testified that he told Fitzgerald on May 3 that he was calling because Respondent's president had talked to him and the pickets on the previous day and urged them to call Fitzgerald to arrange to have the striking employees return to work and to set up a negotiating meeting. Lewis further testified that Fitzgerald told him that he, Fitzgerald, had no authority to set up a meeting but that he would check with Marandino and send Lewis a night letter or a telegram. Lewis testified that he heard nothing further from Fitzgerald that day, May 3, and that when he came to his office on the morning of May 4, there was no night letter or telegram from Fitzgerald there. Lewis and Fitzgerald both testified that they had two discussions by telephone on May 4. Lewis stated he called Fitzgerald on May 4 and told him that he had not received any night letter or telegram. He quoted Fitzger- ald as saying that Marandino had instructed him not to send anything in writing. According to Lewis, Fitzgerald I Marandino testified that one of the pickets, Daniel Krzyminski, had told him that he and the other striking employees would come back to work only if the striker replacements were discharged and only if Re- spondent reinstated Pepe Velez. Krzyminski testified that, as of late April, he had told Mrrandino more than once that it would be difficult for the striking employees to return to work alongside their replacements He also testified that Velez participated in the picketing and that the striking employees were insisting then on Velez being reinstated. 193 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him that he was willing to set up a negotiating meet- ing and would check with Marandino and call him, Lewis, back. Fitzgerald gave an entirely different ac- count of their first telephone conversation. He testified that he could not recall the exact words but that the gist of it was as follows. Lewis called him on Friday, May 4, and stated that there had been an agreement and asked if Respondent was prepared to take Velez back and asked what Respondent's position was "about the employees presently working." Fitzgerald, apparently having under- stood Lewis' remarks as a reference to his letter of May 1, specifically told him about the revocation by telegram of the May I letter. Lewis "purported . . . to have no knowledge of it" then. At that point, Lewis asked "what terms could we settle the agreement under" if Respond- ent would not take Velez back or "release the men" (i.e., discharge the striker replacements). Fitzgerald told Lewis that he would talk to Marandino and call Lewis back. Both Lewis and Fitzgerald agree that Fitzgerald did call Lewis back later on May 4. Again, however, their accounts as to the substance of their discussion are at variance. Lewis testified that the discussion was a brief one and that Fitzgerald told him that Marandino was willing "to take the men back if the Union would accept the open-shop clause in the contract." Lewis said that the conversation ended when he interrupted Fitzgerald to tell him that the Union was willing to discuss any such issue over the bargaining table. Fitzgerald's account respecting that discussion is as follows. After his first conversation with Lewis, he wrote out in longhand on yellow sheets of paper a pro- posal to be made to Lewis. (That document was received in evidence as one of Respondent's exhibits.) It has the appearance of an initial draft as it had many words crossed out, a number of inserts and a few grammatical constructions which are awkward in style but clear as to intent, e.g., "Whereas (the parties) have arrived at a pro- posal to settlement of said strike and therefor exchange mutual promises to wit." Fitzgerald cleared this draft with Marandino and then called Lewis and spoke to him at length. (Respondent placed in evidence Fitzgerald's telephone bills which show that the call to Lewis lasted 13 minutes, to rebut Lewis' testimony that the second discussion was a brief one.) Fitzgerald read the draft pro- posal to Lewis. Lewis said that he would take it up with the striking employees. The conversation ended and Fitz- gerald then noted on the second page of the longhand draft, "This read to Lewis 5-4-79." The proposals set out by Fitzgerald included agree- ment by the Union to cease its efforts to obtain the rein- statement of Velez and to "withdraw all unfair labor practices on his behalf," acceptance by the Union of an "open-shop" clause in the contract to be negotiated, as- surances by the Union that none of the strikers will as- sault or harm any other service employees, agreement to end the strike on May 9 under the same terms as when the strike ended and resumption of bargaining on May 11. The Union's business agent, Lewis, had testified as set forth above that Fitzgerald had told him on May 4 that he had not sent a night letter to Lewis on May 3, as he had earlier promised, because Marandino did not want Fitzgerald to put anything in writing. Lewis also said that Fitzgerald told him in the second conversation on May 4 that Marandino would take the men back if the Union would accept an open-shop clause in the contract. Lewis testified that after that second conversation, his secretary brought to his attention the letter dated May I from Fitzgerald. This is the letter discussed above in which Respondent proposed to take the striking employ- ees back to work on May 7 and to resume negotiations where they left off with a $200 weekly guarantee pend- ing final agreement. Lewis stated that he then sent a tele- gram to Fitzgerald reading, "Relet 5/1, we accept your offer." His telegram makes no mention of either of his conversations on May 4 with Fitzgerald. The General Counsel contends that Lewis' telegram of May 4 accepting the terms of Fitzgerald's May I "offer" constituted an unconditional offer on behalf of the strik- ing employees to return to work. The General Counsel asserts further that Respondent's response on that date unlawfully rejected that offer and instead insisted on an unlawful bargaining condition; i.e., that the Union with- draw its unfair labor practice charge as to Velez. The merits of those contentions are now considered. It is axiomatic that economic strikers are entitled to re- instatement upon the making of an unconditional offer therefor unless they have been permanently replaced. There is no contention by Respondent that the strikers in the instant case had been permanently replaced. The issue considered in this section is whether Lewis did make an unconditional offer on May 4 and, if so, wheth- er Respondent unlawfully rejected it. The evidence relied on by the General Counsel is that Lewis received the May I letter on May 4 after he stated he was told by Fitzgerald that Respondent would not put anything in writing and that Respondent would take the strikers back if the Union would first agree to an open-shop clause in the contract. Let us assume, for our immediate purposes, that his account is credited. The difficulty I have with the General Counsel's con- tention is that Lewis' own testimony discloses that the May 1 proposals by Respondent had been modified by the alleged statement by Fitzgerald on May 4 that the striking employees could come back to work if the Union accepted the open-shop clause. The Union never agreed to accept such a clause. Its telegram of May 4 purports to accept an offer (i.e., May I proposal) which according to Lewis' own testimony had been orally changed on May 4 prior to acceptance. In essence, from a labor-law standpoint, the Union's telegram on May 4 must then be construed as a statement to Respondent that the striking employees offered to return to work on May 7, provided that the Respondent would pay the em- ployees upon their return a $200 floating guarantee each week. That provision was expressly included in the May 1 letter, upon which the Union's offer was predicated. In that context, the Union's May 4 telegram by its terms was not an unconditional offer but was premised on Re- spondent's agreeing to a $200 weekly guarantee. I recognize that Respondent did not expressly assert that the language of the Union's May 4 telegram thus 194 ROBERTS OLDSMOBILE INC. constituted a conditional offer to return but Respondent did deny the allegation in the complaint that the Union made an unconditional offer on May 4. Even assuming that the conclusion above, that the May 4 telegram was not an unconditional offer, is based on a technical, legal- istic application of contract-law principles of which Lewis was unaware, that conclusion should still stand as there are no legal or equitable bases to justify its being set aside. From a legal standpoint, as noted above, the law clearly requires that an offer to return made by strik- ing employees must be unconditional. The offer in any event should be made in an intelligible manner. Lewis' May 4 telegram purporting to accept an earlier proposal by Respondent which had, by Lewis' own testimony, been modified in the interim, is hardly a clear communi- cation to Respondent tat the strikers desired uncondi- tionally to return to work. There is a further legal basis to support my conclusion that the May 4 telegram was not an unconditional offer to return. If it were, Respond- ent may be liable for backpay from May 7 until the strike ended. Based on the terms of the May I letter and Lewis' May 4 acceptance of its terms, the backpay would have to be calculated on a formula which must take into account the $200 weekly floating guarantee, a wage rate factor that Lewis' own testimony shows was not agreed upon by Fitzgerald in the telephone conversa- tion on May 4. In other words, if the gross backpay for- mula would include the $200 guarantee, that would per- force demonstrate that the guarantee was a condition to the offer to return to work. If it were not to be included in the backpay formula, that would demonstrate that the Union's May 4 telegram purporting to accept the terms of the May I letter did not in fact do so. In that event, we would have to speculate as to the purpose of the May 4 letter. This brings us to a consideration of the equities. Lewis' own testimony shows that the last item he dis- cussed with Fitzgerald before sending the May 4 tele- gram was Respondent's request that the contract contain an open-shop clause and its view that agreement thereon should be reached before Respondent would consider any offer the Union might make to end the strike. Lewis testified that he did not reject that proposal but said it was a bargainable matter. His May 4 telegram sent right after his conversation with Fitzgerald recites that the Union accepts the May I "offer." Nevertheless, Lewis was sent on May 4 a telegram by Fitzgerald which un- equivocally indicated that the terms of the May I letter were no longer operative as that May 4 telegram ex- pressly referred to the discussions Lewis and Fitzgerald had earlier that day. For that matter, that May I letter had earlier been revoked expressly. In these circum- stances, it seems inequitable to me to construe Lewis' telegram as an acceptance of the May 1 letter and to, at the same time, disregard its contents. The overall cir- cumstances suggest instead that, when Lewis was told by Fitzgerald that Respondent insisted on an open-shop clause and where the Union's position throughout bar- gaining has been that it would accept only a union-shop clause, Lewis' May 4 telegram was not a clear, intelligi- ble unconditional offer to return but rather was a request that Respondent retract from its position on May 4 and return to its position on May 1. In essence then the Union by its May 4 telegram offered to return the strik- ers to work and to resume bargaining on condition that the $200 floating guarantee be put into effect. I read that as a conditional offer as the General Counsel adduced no evidence that, prior to the strike, the $200 guarantee was in effect. In any event, I do not credit Lewis. He said he called Fitzgerald on May 3 but no phone bills or other docu- mentation were offered to corroborate such a long-dis- tance call. In that regard, I note that Lewis' office is in New York City, the picket line was in Stamford and Fitzgerald's office is in Hartford. Further, Lewis said his second conversation on May 4 was very brief but Fitz- gerald's phone bills show that it lasted 13 minutes. That interval supports Fitzgerald's account that he read and discussed with Lewis the longhand draft he prepared earlier. The draft itself appears authentic. Also, it is un- likely that Fitzgerald would not have mentioned in the May 4 conversations the May I letter or his telegram of May 2 revoking it. It is even more unlikely that, after having sent those communications, he would have told Lewis, as Lewis asserts, that he was instructed to put nothing in writing. If Lewis were told that and was handed the May I letter immediately afterwards, he would be expected to call Fitzgerald back and to con- front him with the letter but he did not do so. Finally, Fitzgerald did in fact send a telegram on May 4 after the second conversation and this belies Lewis' assertion that Fitzgerald was under instructions not to put anything in writing. In fact, Fitzgerald sent telegrams and mailgrams to all the strikers then. I credit Fitzgerald's account. Thus, Lewis was aware when he sent his May 4 telegram reading "Re-let 5/1. We accept your offer" that that "offer" had been re- voked. He was obviously not making an unconditional offer to return the strikers to work. He could have made such an offer simply and directly if that was his intent. I can only conclude that Lewis was engaging in some form of gamesmanship. I find that his telegram was not an unconditional offer. In a separate section below, the alleged violation by Respondent of insisting upon the withdrawal by the Union of the unfair labor practice charge it filed as to Velez is considered. 3. The alleged oral unconditional offer on May 7 to return to work We now come to the General Counsel's second con- tention that the striking employees orally made an un- conditional offer on May 7 to return to work and that their offer was rejected then. Respondent asserts that, on May 7, the striking employees insisted on the discharge of their replacements and the reinstatement of Pepe Velez as a condition for their coming back to work. The resolution of that credibility issue requires an examina- tion of the events from the start of the negotiations to the events of May 7. Lewis testified that, after having sent the May 4 tele- gram accepting Respondent's proposal that the striking employees return to work on May 7, he went to the 195 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket line and that the striking employees, and also Velez who was there, agreed then to go along with the proposal set out in Respondent's letter of May 1. Lewis, and several of the strikers who were present then and who testified at the hearing, said that all agreed to go back to work except Velez whose reinstatement would be sought via the unfair labor practice charge the Union had filed on his behalf with the Board. Velez had been present on the picket line all that week but did not tes- tify at the hearing. On that afternoon of Friday, May 4, Fitzgerald re- ceived Lewis' telegram sent earlier that day, reading: "Relet May 1, we accept your offer." He testified that, because of the hectic pace of the developments, he mis- read it as an acceptance of the proposals he had read in full to Lewis a short while before on May 4 from the longhand draft he prepared. He thereupon sent telegrams to Lewis and to one of the strikers and mailgrams to each of the other striking employees. The message ac- knowledged receipt of Lewis' telegram of May 4, ex- pressed pleasure that the "offer of May 4 by phone ac- cepted" and stated that upon the Union's signing an agreement containing the terms of the May 4 proposal of Respondent, the striking employees could report for work on May 9. The May 9 return date, instead of the May 7 date as set out in the May 1 letter, was selected, according to Respondent's witnesses, because its service manager had collapsed from a heart condition while at work on May 2 and was not able to return to work until May 9 at the earliest. Respondent's president testified that he wanted his service manager on duty when the strikers returned because he, the service manager, was the best one to maintain control in the shop should any problems develop between the returned strikers and their replacements. One of the striking employees, Daniel Krzyminski, called Fitzgerald on Saturday, May 5, when he received the telegram sent him by Fitzgerald. He told Fitzgerald that he had a letter from Lewis dated May 4 telling him to report for work on May 73 and said he was confused by the May 9 date in Fitzgerald's telegram. Fitzgerald told him not to come in on May 7, that the date had been changed to May 9 and that the men could come back to work as soon as the Union signed an agreement. Krzyminski said that he would follow Lewis' instructions and would report for work on May 7. Fitzgerald testified essentially along the same lines except that he said he told Krzyminski that the May 7 date was changed to May 9 because the service manager would be absent be- cause of illness until May 9. Over the remainder of the weekend, Fitzgerald and Marandino discussed the language to be incorporated in the agreement they would present to Lewis to sign on May 7 and decided to use verbatim the draft Fitzgerald had prepared on May 4. The agreement was typed. Fitz- gerald and Marandino waited in Marandino's office at Respondent's facility in Stamford on the morning of May 7 for the striking employees to present themselves. When they were told that the strikers were coming, Fitzgerald 3 There is no other reference to such a letter from Lewis in the tran- script. In context, Krzymski was referring to Fitzgerald's letter of May I which Lewis said he showed the striking employees on May 4. testified that he left the office and found an isolated hall- way where he remained in order to avoid being a partici- pant in or witness to the confrontation. The General Counsel presented the testimony of five witnesses to establish that the striking employees offered in the discussion, then to come back to work uncondi- tionally. Respondent proffered seven witnesses to estab- lish that they made at best conditional offers. One of the striking employees, Daniel Krzyminski, tes- tified that he and 11 other employees assembled that morning in a parking lot next to Respondent's premises and walked as a group to the service door. He stated that all were wearing their work uniforms, that some carried their mechanics tools and that all the other strik- ers were right next to him when they were met by Mar- andino. According to Krzyminslti, Parts Manager Robert Schrecke was standing immediately alongside Marandino and Service Manager Donald Lofink was standing on Marandino's other side, also right next to him. Maran- dino signaled them to stop. According to Krzyminski, Marandino asked him if he had received a telegram on Saturday (which changed the reporting date on May 9). Krzyminski stated that he showed Marandino a copy of the May I letter given him by Lewis which set forth March 7 as the reporting date. Krzyminski said that Mar- andino told him that the matter would be settled when Lewis arrived as he had an agreement for Lewis to sign. Krzyminski stated that he and the other strikers then withdrew to an adjacent parking lot and waited there for Lewis. According to Krzyminski, Lewis arrived a short while later and discussed what had just transpired. Lewis pro- fessed no knowledge of any agreement he was supposed to sign. Thereupon, Lewis, Krzyminski, and another striker, Albelt (Taxi) Escoffrey went to Marandino's office and had the following discussion with Marandino, Schrecke, and Respondent's attorney, Fitzgerald. Maran- dino presented the written agreement, referred to above, for Lewis to sign. Krzyminski said that there was some discussion about the strikers fighting with the replace- ments, and that Respondent wanted an open shop. He also testified that Lewis looked at the proposed agree- ment, did not like it, and said that he would show it to the group of strikers outside. Lewis, Krzyminski, and Es- coffrey then left to discuss the proposed agreement with the group outside. The strikers rejected the proposal. Lewis, Krzyminski, and Escoffrey returned to Maran- dino's office to inform him of the rejection. They re- turned to the group outside and resumed picketing, car- rying the same placards as before, which bore either the caption, "Strike" or "Unfair." About a week later, ac- cording to Krzyminski, the pickets began carrying new signs, reading "Lockout." Lewis' testimony as to the events on the morning of May 7 is as follows: He first learned that morning that Respondent had an agreement for him to sign before the men could return to work. He had not previously re- ceived Fitzgerald's telegram of May 4, referred to above and which stated that they could return on May 9 after Lewis signed the agreement reached by phone on May 4. When Fitzgerald handed him the proposed agreement in 196 ROBERTS OLDSMOBILE INC. Marandino's office on May 7, he told Fitzgerald that that was not the agreement he accepted but that he was refer- ring to Fitzgerald's letter of May 1. Fitzgerald told him then that the May I offer had been rescinded by a tele- gram. Lewis told him he had never received such a tele- gram. Lewis told Fitzgerald that he could not agree to the proposal given him on May 7 and would discuss it with the men. Lewis, Escoffrey and Krzyminski left, dis- cussed it with the strikers as a group who rejected it and then Lewis informed Respondent that the men would not agree to the proposal. The strikers resumed picketing on May 7 with signs bearing the legend "Strike" in black lettering. About a week later, the signs were changed. New ones, in blue and bearing the legend "Lockout" were carried from then and until the strike ended a little over a month later. Albert (Taxi) Escoffrey testified for the General Coun- sel as follows respecting the discussions on May 7. As he and the other strikers approached the service door, a police officer, George Hoegemann who was doing spe- cial guard duty for Respondent, told them to stop. Then Marandino, in the presence of Parts Manager Schrecke and Service Manager Lofink and in response to Krzy- minski's asking why his group cannot come in to work, asked Krzyminski if he did not receive a letter "rejecting the previous letter." Krzyminski said that he did. In the course of that discussion, Marandino stated that Lewis has to sign a letter before the strikers can return to work. The rest of Escoffrey's testimony parallels the testimony of Lewis and Krzyminski as to the subsequent events of that morning. The General Counsel's fourth witness, Robert Law- rence, testified as follows. He drove onto Respondent's lot to bring in his tools. Marandino told him he had no work scheduled for him that day but to come back on May 9. He joined the group of strikers at the service door shortly afterwards and stood with most of them about 5 feet behind Krzyminski. Marandino came to them. Krzyminski and Vernon Ampson acted as spokes- man for the strikers. Krzyminski pulled out a letter and told Marandino that it says that the strikers can come back to work. Marandino asked if they received his other telegram and was told that they were coming back - based on the letter Lewis had shown them the preceding Friday. Marandino asked to see Lewis. The strikers later resumed picketing with signs reading, "Unfair." Previ- ously, the signs had read "Strike." Vernon Ampson was the last witness for the General Counsel as to the events of May 7. He testified as fol- lows. He, Krzyminski, and Escoffrey walked up to the service door. A police officer stopped them. The only others nearby then were Marandino and Schrecke. Serv- ice Manager Lofink was at his desk inside the building. Marandino asked if they saw Lewis. Krzyminski, said they had not. Marandino said he had a letter for Lewis to sign. At that point Ampson realized that he was not going to go to work that day and walked back to where the other strikers were standing. From that distance he and the other strikers could not hear what was said clearly and he did not hear what else was said between Marandino and Krzyminski. Later Lewis arrived and went to Marandino's office with Krzyminski and Escof- frey. They returned and told the strikers to resume pick- eting because there was something Respondent wanted him to sign. They resumed picketing and several days later the placards were changed to read "Lockout." As noted above, Respondent presented seven witnesses as to the events on May 7. Its first was its parts manager, Robert Schrecke, who testified as follows. The strikers walked onto Respondent's premises as a group and that all but Krzyminski and another striker, Vernon Ampson, stopped and waited at a line of service cars. Krzyminski and Ampson continued to walk toward the service door where Marandino told them to stop. In Schrecke's opin- ion, the strikers in the background were too far away to hear the conversation that ensued. Marandino asked where Lewis was and wanted to know if the agreement was to be signed. Krzyminski asked whether the non- strikers were still in the shop and whether Pepe Velez could come back to work. Marandino answered yes to the first question and no to the second. Krzyminski and Ampson turned around and walked back to the waiting group of strikers who then went to an adjacent parking lot to wait for Lewis. Velez was with the waiting group at that time. Schrecke was not present later at Maran- dino's office when Lewis discussed the proposed agree- ment with Marandino and Fitzgerald. Marandino testified as follows. On the morning of May 7, Marandino and Schrecke talked to Krzyminski and Vernon Ampson at the doorway to the service de- partment. The remainder of the striking employees were standing about 50 feet away alongside the cars parked in the lot. Krzyminski said that the men would like to come back to work but that the "scabs in the shop" would have to go and he also asked about Velez. Marandino told him that that cannot be and asked for Lewis. Krzy- minski said he was supposed to be there. Marandino sug- gested they wait for Lewis. Krzyminski and Ampson turned and walked back to the other striking employees who then left the premises to wait for Lewis in an adja- cent parking lot. Marandino said that Velez was one of the men present in that group on May 7. Later that morning, according to Marandino, Lewis, Krzyminski, and Taxi Escoffrey came to Marandino's office where they met with Marandino and Fitzgerald. Lewis refused Marandino's offer to sit down and asked why the men were not back to work. Marandino told Lewis what Krzyminski had said at the picket line early the preceding week; i.e., that there would be violence if the "scabs" were not let go and that the Union wanted Velez back to work. Lewis said that Krzyminski does not speak for the Union. Fitzgerald asked Lewis to sit down so that they can talk but Lewis said that he heard enough and left with Krzyminski and Taxi. In the course of their discussion, Marandino had handed Lewis an agreement for him to sign. Lewis told him that he would show it to his attorney. Marandino testified further that when Lewis and the striking employees reached their cars on the adjacent parking lot, Lewis opened the trunk of his cars and took out picket signs which the men put on. The placards read "Lockout." George Hoegemann was called by Respondent and he testified as follows. He is an acting sergeant with the 197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stamford police department and has also performed se- curity duty for Respondent since the spring of 1979. On the morning of May 7, he was on duty for Respondent at its premises when the strikers proceeded onto Respond- ent's lot. All but two, Krzyminski and Vernon Ampson, stopped about 60 feet from the service door. Velez among the group. Krzyminski and Ampson continued to walk to the service door. From the position Hoegemann took near a stairwell railing, he could see those two but not Marandino. Nevertheless, he heard and recognized Marandino's voice in the ensuing conversation. Maran- dino asked if they were there to come back to work. Krzyminski said they are ready to come back but he wanted to know "about the guys that are inside." Maran- dino said they would stay. Krzyminski also asked wheth- er Pepe Velez was coming back to work too. Marandino said that they could talk about this. Marandino then asked where Lewis was and was told he was not there yet. Krzyminski and Ampson left and joined the waiting group. Later that day, he observed the group picketing with signs reading "Lockout." Prior to that day, they carried signs which read "Strike." Service Manager Lofink's testimony was as follows: He came to Respondent's premises on Monday, May 7, despite his illness. He had collapsed at work on May 2 and was out the remainder of the previous week. From his position on May 7 at the service desk, he saw the strikers walk onto Respondent's property and stop at the location where customers' cars are parked, about 30 to 40 feet from the service door. Two of them, Krzyminski and Ampson, then walked to the service door where they were met by Marandino and Schrecke. Lofink could not hear what was said as the service desk was about 20 feet from the door. He was able to observe Krzyminski and Ampson approach the door as there was a window alongside his desk. Later on, he observed Lewis, Krzyminski, and Escoffrey come into the show- room and leave it shortly afterwards. The strikers re- sumed picketing later that day with signs which read "Lockout." One of Respondent's salesmen, Jack Delehanty, testi- fied that as he unlocked the showroom door that morn- ing, he saw Krzyminski and Ampson approach the serv- ice door. He also observed the policeman, Hoegemann, leaning off the stairwell railing. He testified that a group of the strikers, including Velez, stationed themselves alongside the cars parked in the lot. From his position in the showroom, Delehanty could not hear any of the con- versations. Later on, he observed the pickets carrying "Lockout" signs for the first time. Respondent's next witness, Kenneth Hildebrand, testi- fied that he is in business for himself and that he was in the service shop on the morning of May 7 repairing tele- vision camera equipment. He identified Krzyminski and Ampson (who were in the hearing room) as the two men who approached the service door as he was ready to leave. He observed them talking to Marandino and Schrecke there but paid no attention to the discussion. As noted above, Respondent's attorney Fitzgerald was also there but from his position in a secluded hallway, he saw and heard nothing. He was present later in Maran- dino's office when Lewis, Krzyminski, and Escoffrey came there. His testimony of the discussion then cor- roborates Marandino's account. Respondent's last witness as to the events on May 7 was its former attorney, Gerald Kolinsky, who is now a workmen's compensation commissioner for the State of Connecticut. He testified that he was returning by auto- mobile to his office from a conference he had that morn- ing with a client and observed the pickets bearing signs with the legend, "Lockout" in black print. In rebuttal, Krzyminski, Lewis, and Escoffrey denied that any strikers threatened to harm any of the replace- ments and denied that they admitted such threats. In resolving the credibility issues posed by the forego- ing accounts, I first take note of the background events. The Union had spent two bargaining sessions with Re- spondent unsuccessfully seeking Velez' reinstatement in late 1978. It was unsuccessful in the subsequent six ses- sions in reaching agreement on the contract terms. It struck on April 5. Velez actively participated in the pick- eting and was admittedly on the picket line during the week May 1-4. The strikers conceded that it would be difficult for them to return to work alongside their re- placements. The General Counsel's witnesses testified that they agreed among themselves on May 4 to seek Velez' reinstatement thereafter only by way of the unfair labor practice charge it had earlier filed on his behalf. They do not contend that they ever expressly told Re- spondent that the object of their strike from the outset or at any time was solely to resolve the economic issues or that they were offering to return without Velez being re- instated. I also note that, by their own testimony, the General Counsel's witnesses indicated that their offer to return on May 7 was based on the May 1 letter which I have found to be itself a conditional offer. For the matter, the repeat of that offer by the Union's counsel on May 16 was to the same effect. It seems unlikely to me that Velez and the striking em- ployees would so readily agree on May 4 that all would offer to return on May 7 based on the May 1 letter and without Velez. I have already found that Lewis knew then of Fitzgerald's detailed proposals on May 4. It is unlikely that those were not discussed with the employ- ees on strike. In any event, the General Counsel has failed to persuade me that the accounts of his witnesses are more credible than those of Respondent's. Ampson contradicted the accounts of Krzyminski and other strik- ers that the strikers appeared at the service door en masse. He corroborates Respondent's witnesses that almost all of the strikers were located about 50-feet dis- tant and that Lofink was not at the service door. Krzy- minski asserted he was. Another of the General Coun- sel's witnesses, Robert Lawrence, corroborates Respond- ent's witnesses that Krzyminski and Ampson were the only two to approach the door to act as spokesmen for the group. The accounts of Respondent's witnesses were substanitally consistent on material details and were given from the respective positions at which they said they were located that morning. Four of them said that Velez was there that morning. The General Counsel did not call Velez as a witness or directly explain his absence 198 ROBERTS OLDSMOBILE INC. although Respondent's cross-examination of Lewis indi- cated that with some effort the Union had been able to locate Velez in June. I credit the accounts of Respond- ent's witnesses and thus find that the Union's offer on May 7 was conditioned upon the reinstatement of Velez and the discharge of the strikers' replacements. C. The Alleged Unlawful Insistence by Respondent That the Union Withdraw Unfair Labor Practice Charges Before Any Offer To Return the Strikers To Work Could Be Considered The facts so far show that Fitzgerald took the initia- tive towards ending the strike by his call to the Union's president in late April, that he modified that offer on May I and that he further modified it on May 4-7. On May 14, he sent Lewis another telegram which modified again that proposal. Therein, he proposed to take the strikers back on May 23, that the Union cease its effort to reinstate Velez and that it would withdraw its unfair labor practice charge as to him. The proposal also in- cluded agreement on an open-shop, arbitration of any discharge, the end of the strike, resumption of bargaining on May I and withdrawal of all lawsuits, including one instituted by Respondent in the state of Connecticut for an injunction against alleged violence by the Union. On May 16, the Union's attorney wrote Fitzgerald to note that the Union had accepted his May I offer but that the employees were not returned to work as prom- ised therein and that Fitzgerald's May 14 telegram is but a repeat of Respondent's alleged unlawful conduct. The letter of May 16 states that the Union again uncondition- ally offers to return the strikers to work as offered on May I by Respondent and to resume negotiations. It ap- pears that, at or about this same time, an agent of the Re- gional Office of the National Labor Relations Board un- dertook efforts to adjust the issues arising out of the Union's unfair labor practice charge it filed in behalf of Pepe Velez and also the charge in the instant case. Re- spondent's counsel testified that he suggested to the Board agent that the Velez matter be handled separately from the issues involved in the new charge. Respondent's counsel wrote the Union on June 5 and enclosed a strike settlement agreement for it to sign. His covering letter recites that Respondent is willing to discuss any clause therein at any time to end the strike as soon as possible. The proposed settlement offer by Respondent on June 5 provided for arbitration of any discharge, a $180 to $210 floating guarantee, resumption of bargaining, withdrawal of all lawsuits and "unfair labor practices pending as a result of the strike" (by this time the charge giving rise to the complaint in the instant case had been filed). The Union did not respond to that letter in writing. In early June, Respondent's attorney submitted a written proposal to the Union to settle the Velez matter. That proposal was signed on June 14 and Respondent that same date notified the Union by telegram that it would take back all striking employees on the following day and for a reasonable time thereafter. The strikers returned a week later. The foregoing evidence does not demonstrate intransi- gence on Respondent's part. It does show that Respond- ent repeatedly made efforts to sway the Union from pur- suing its picketing to compel inter alia the reinstatement of Velez and the discharge of the striker replacements. Fitzgerald's uncontroverted testimony is that he was the one to propose to the Board agent, who was acting as intermediary, that the Velez unfair labor practice case be separated from the strike situation to promote settlement prospects. He also had expressly advised the Union that he was ready and willing to talk about any clause con- tained in his proposals. At no time did the Union offer to do so. It simply kept characterizing his proposals as per se violations. In oral argument at the hearing, Fitzgerald as Respondent's co-counsel stated that the words he used to induce the Union to withdraw its unfair labor practice charges may have been legally improper on their surface but, in the context of the overall situation, they set out bona fide, lawful attempts on Respondent's part to break a bargaining deadlock which involved the insistence by the Union of Velez' reinstatement. There is no probative evidence that Respondent established, as an unyielding term of reinstatement of the strikers, 4 that the unfair labor practice charges be withdrawn by the Union or that Respondent insisted upon such withdrawals as a condition precedent to the resumption of bargaining. Ac- cordingly, I find that Respondent did not, by use of such language, discourage membership in the Union in viola- tion of Section 8(a)(3) of the Act or refuse to bargain collectively in violation of Section 8(a)(5) of the Act. The General Counsel urges that good-faith motive is no defense. I now will consider whether the demands by Respondent as to the withdrawal of the unfair labor practices interfered with the rights of employees to have access to the Board processes in violation of Section 8(a)(1). As noted above, the words above prima facie support such a finding but they must be evaluated in the context of the whole case. In that posture, I find that the evidence is insufficient to establish that the employees could reasonably construe the position of Respondent as a restriction on their right to avail themselves of the Board's processes. They knew, as did Respondent, that they were engaged in an economic tug of war. None of the employees could reasonably expect reprisals of any kind based on charges having been filed and not with- drawn. Even were the words used violative of Section 8(a)(1), Respondent itself appears to have taken the ini- tiative in remedying any unlawful impact and there is nothing to suggest that their use will be repeated. On the contrary, Respondent's counsel has expressed regret on the record in this case for his choice of wording and no useful purpose would be served by the issuance of a re- medial order thereon. CONCLUSIONS OF LAW 1. The Union did not at any time make an uncondi- tional offer on behalf of the employees named in the complaint as amended to return to work from an eco- nomic strike and thus Respondent's not having reinstated them from May 4 to June 15, 1979, did not violate Sec- tion 8(a)(3) of the Act. ' Had it done so, a violation of Sec. 8(a)X3) may have been made out. Cf. Abilities and Goodwill. Inc.. 241 NLRB 27 (1979). 199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent did not insist as a condition precedent to the resumption of bargaining with the Union that it withdraw unfair labor practice charges it filed and thus Respondent did not violate Section 8(a)(5) of the Act. 3. Respondent did not interfere with the Section 7 rights of its employees and did not violate Section 8(a)(l) of the Act. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- Upon the foregoing findings of fact and conclusions of law, I hereby issue the following recommended: ORDER 5 The complaint, as amended, is dismissed in its entirety ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purpose. 200