Pease Co.

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pease Company and Ohio Valley Carpenters District Council, United Brotherhood of Carpenters & Joiners of America, Local 1787, AFL-CIO. Cases 9-CA-13898, 9-CA-14071, 9-CA- 14171, and 9-CA-14598 August 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MF.EMBERS PENELL.O AND TRUESDALE On April 10, 1980, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party and the General Counsel filed limited cross- exceptions to the Administrative Law Judge's De- cision and briefs in answer to Respondent's excep- tions. 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 conclusions of the Administrative Law ' he Charging P'art,'s request for litigation expenses is denied as we do rit) find Respondent's defense herein to be frivolous Heck's. I.. 215 NLRB 765 (1974) Amvtirdarn Printing and Litho Corp., 223 NLRB 370 (1976) T2 he Adminisratise aw Judge found. and we agree, that Respond- ent. in specific ways. violated Sec 8(i)(5). 13), and (I) of the Act He also found. however, in sec J of his Decision. that by its unlawful conduct herein. Respondent had demonstrated its intent not to veer from its presi- ously established course of coniduct which was designed to frustrate meaningful collective bargaiing with the Union and w'hich the Board found unlawful i Peaie Companiy. 237 NLRB 1069 (1978). Consequently he found that the aboveh conduct taken as a whole constituted a further violation of Sec 8 (a)(5) and (I) of tie Act. (See sec. IllJ, of his Deci- siotn.) While we agree that Respondeitnt s conduct herein suggests that it had chosen to continue on its previous course of unlawful conduct, we nevertheless find Ihe additional (a)(5) and (I) finding to be unswarranted, as nio such "overall" allegation was specifically alleged as a violation of the Act or fully litigated at the hearing. Additionally. il agreeing with the Administrative Law Judge that Re- spoindent violated Sec 8(a)(3) and (I) of the Act by issuing a written warning to employee William Reubel for having engaged in union activi- ties. we find it unnllecessary to rely on his finding that Reubel's remlarks to emnployeeC Ray Rule (see sec 111,1 of his Decision) were thenlselves pro- tected activity swithin the meaning Of the Act Furthermore. we shall order Respondent to reilove fronm Reubel's personnel file the wriltein warning issued to him for engaging in unionl activities and to notify Reubel of such actilon 251 NLRB No. 80 Judge and to adopt his recommended Order,3 as modified herein.4 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, as modi- fied below, and hereby orders that the Respondent, Pease Company, Hamilton, Fairfield, and Mason, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph l(f): "(f) Unilaterally promulgating and/or implement- ing loan programs, wage increases, merit reviews, grievance procedures, disciplinary systems or pro- grams, or making any other unilateral changes in the employees' terms and conditions of employ- ment without having first bargained in good faith with the Union to a new contract or to an im- passe." 2. Substitute the following for paragraph 2(c): "(c) Offer each of the following named employ- ees immediate and full reinstatement to his former ' The Administrative Law Judge found that Respondent had violated Sec. 8(a)(5) and (1) of the Act by unilaterally instituting certain changes in the employees' terms and conditions of employment and recommended that it be ordered to cease and desist from unilaterally making any changes that have not been agreed to by the Union. While we agree that the unilateral changes violated Sec. 8(a(5) and (1) (of the Act, we do not agree ith the remedial provision provided by the Administrative Law Judge. Rather. it is well settled that an employer may, after bargaining in gooiid faith to an impasse, make unilateral changes in the terms and condi- tiolns of enmployment that were reasonably comprehended within the em- ployer's preimpasse proposals. Taft Broadcasting Company, 163 NLRB 475 (1967). enfd. 395 F.2d 622 (D.C. Cir. 1968). Accordingly, we shall order Respondent to cease and desist from making any unilateral changes without first bargaining in good faith with the Union to either a new con- tract or to an impasse. Furthermore. nothing herein shall be construed as requiring Respondent to rescind those benefits it previously granted to its employees but which were found to be in violation of the Act. 4In a previous Decision and Order (237 NLRB t)69) the Board. inter alia, ordered Respondent to reinstate and make whole certain named unfair labor practice strikers upon their unconditional request for such re- instatement. The Administrative Law Judge in the present proceeding fiound, and we agree, that the Union's letter of August 18, 1977, was a continuing. effective and unconditional application for reinstatement of all the strikers. He thus found the strikers were entitled to immediate re- instatemnent and to hackpay commencing Janluary 5, 1979, i e, from 6 months prior to the filing of the relevant charge in this proceeding How- eser, as the Administrative Law Judge recognized. in considering the issue of reinstatement and backpay for the unfair labor practice strikers he was i substance dealing with a question concerning compliance with the Board's Order in the earlier Decision and Order In these circum- stanlces, we find that the limitations of Sec IO(b) of the Act insofar as they apply to the charges iII the present proceeding are inapplicable to the award of backpay to the strikers, the beginning date of which is con- trolled by the Order in the prior case Accordingly, we find that the unfair labor practice strikers tire entitled to backpay beginning 5 days after Respondent's receipt of the Union's August 18. 1977. letter to such linme as they are offered full rand proper reinstlatenment We shall modify the recoimmended Order accordingly F-or reasons set forlh in the partial dissent in Druag Package Company. Inc.. 228 NLRB 108 (1977). Chairman Faning wsould begin Respondentlc's backpay obli g ationl on the date of Re- spondcent's receipt of the Uriioll's letter of August 18. 1977 PEASE CMPANY 541 job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his senior- ity or other rights and privileges previously en- joyed, and make him whole for any loss of wages he may have suffered by reason of Respondent's refusal to reinstate him within 5 days after receipt of the Union's August 18, 1977, reinstatement letter. Such backpay and interest therein shall be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977):3 9 Timothy J. Allgaier Samuel J. Bellissimo Charles G. Briggs Larry E. Campbell Charles Chapman Samuel M. Cobb Andrew R. Dudley Larry G. Elliott Larry L. Fagin, Jr. Robert E. Garrett William L. George Larry E. Hibbard Rodney P. Hicks Richard L. Hosteller Michael D. Jockers Dennis Kidd Ronald L. Pugh Steven L. Retherford Lawrence E. Rice Terry W. Rose Alvin R. Schaney Leroy Slater George W. Stickler Patrick H. Sullivan Chester Tirey Paul H. Ulreich Sherman Wagers Willard D. Walton Winfred Wilhoit Arnold Wilkinson All factory production and maintenance em- ployees employed by us at our 900 Forrest Avenue, Hamilton, Ohio, 2580 Bobmeyer Road, Hamilton, Ohio and 7100 Dixie High- way, Fairfield, Ohio locations, and our Mason, Ohio Sidelight operation; but ex- cluding all office clerical employees, profes- sional employees, guards, supervisors as de- fined in the Act, and all other employees. WF. Wll . NOT issue warnings to employees for the purpose of discouraging union activity. WE WILL. NOT refuse to process grievances. WE W11L1 NOT refuse to furnish Carpenters Local 1787 with information relevant and nec- essary to collective bargaining or grievance processing. Wt W. NOT refuse to reinstate unfair labor practice strikers on whose behalf Car- penters Local 1787 made an unconditional offer to return to work, nor will we refuse to fully reinstate unfair labor practice strikers who have been recalled to work. WE WILL. NOT discharge employees, or oth- erwise discriminate in any manner with respect to their tenure of employment or any term or condition of employment, pursuant to any pro- gram system of discipline we have adopted without giving Carpenters Local 1787 prior notice and opportunity to bargain thereon. WE WI.1. NOT unilaterally promulgate or implement loan programs, wage increases, merit reviews, grievance procedures, disciplin- ary systems or programs, or make any other unilateral change in our employees' terms and conditions of employment, and WE wnIl., in good faith, bargain upon request with Carpen- ters Local 1787 with respect to these subjects until an agreement is reached or an impasse occurs. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them under Sec- tion 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively with Carpenters Local 1787 as the exclusive representative of all employees in the appro- priate unit described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. WE WILL furnish Carpenters Local 1787, upon request, with information relevant and necessary to collective bargaining or grievance processing. 3. Insert the following as paragraph 2(f) and re- letter the subsequent paragraphs accordingly: "(f) Remove and rescind from the personnel file of employee William Reubel the written warning issued to him for engaging in union activities and notify said employee of its actions." 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. WE WILL NOT fail or refuse to bargain col- lectively in good faith with Carpenters Local 1787 as the exclusive bargaining representative of all our employees in the following appropri- ate unit: I'LASE CMPAN 541 542 DECISIONS OF NATIONAL LABOR RELATIONS B()OARD WE WILL offer the following named strikers, who have made themselves available for em- ployment on an unconditional basis but were refused reinstatement, immediate and full rein- statement to their former jobs or, if their jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings, plus interest: may have suffered as a result of their dis- charge. WE WILL. remove and rescind from the per- sonnel file of employee William Reubel the written warning issued to him on January 19, 1979, for having engaged in union activities and WE WItI. notify said employee of such ac- tions. PEASE COMPANY DECISION CLAUDi R. WOI.FE, Administrative Law Judge: This consolidated proceeding was heard before me at Cincin- nati, Ohio, on January 23, 24, and 25, 1980, pursuant to charges timely filed and complaints duly issued' and properly amended. Respondent denies the commission of unfair labor practices. The complaints allege violations of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amend- ed, herein called the Act, which are treated seriatim in this Decision. Upon the entire record, 2 together with my careful ob- servation and evaluation of the demeanor of the wit- nesses as they testified, and after consideration of the parties' helpful post-trial briefs, I make the following: FINI)INGS AND CONCIUSIONS I. JURISI)ICTION Jurisdiction is not in issue. Respondent admits that it meets the National Labor Relations Board's standards for the assertion of jurisdiction. This charge in Case 9-CA-13898 was filed on May 22, 1979, and served May 23. Complaint thereon issued July 9, 1979 The charge in Case 9-CA-14071 was filed July 5 and served July 6, 1979. The charge in Case 9-CA-14171 was filed August 2 and served August 3, 1979. A consolidated complaint in Cases 9-CA-14071 and 9-CA-14171 issued August 30, 1979. The charge in Case 9-CA-14598 was filed and served on November 29, 1979, and complaint issued thereon on January 9, 1980. On January 9, 1980, all four cases were consolidated for hearing One ad- ditional allegation was added at hearing over Respondent's objection This objection was not pursued in Respondent's post-lrial brief. 2 At the hearing references were made by counsel to various employ- ees who were the subject of a previous settlement agreement, in cases not now before me, but not alleged in this proceeding as having been refused rehire on application therefor. To ascertain the identities of the employ- ees in the settlement as an aid to understanding of the parties' J Exh 13 in this proceeding, I directed the parties to place copies of that settlement in evidence as ALJ Exh. 1. The parties jointly furnished a signed settle- ment agreement in Case 9-CA 12694, which has apparently been com- plied with. Thereafter, on March 24, 1980, the General Counsel submit- ted the transcript of the short proceedings before Adminstrative Law Judge Julius Cohn on February 7, 1979, wherein the parties orally agreed to certain undertakings in Cases 9-CA-9730, 9CA 12806, and 9-CA 12943, in addition to the written agreement in Case 9CA-12694. All charges, except that settled in writing in Case 9-CA-12694, were with- drawn and the accompanying complaints dismissed. I find nothing in these prior proceedings that constitutes probative evidence in the pro- ceeding before me, but I am of the opinion the transcript and settlement may assist a reviewing body in understanding various statements of coun- sel in the record made before me. Accordingly, absent objection, this ma- terial is received as ALJ Exh. I(a) for that limited purpose only. I have not placed any reliance on it in reaching my various findings and conclu- sions herein. Timothy J. Allagier Samuel J. Bellissimo Charles G. Briggs Larry E. Campbell Charles Chapman Samuel M. Cobb Andrew R. Dudley Larry G. Elliott Larry L. Fagin, Jr. Robert E. Garrett William L. George Larry E. Hibbard Rodney P. Hicks Richard L. Hosteller Michael D. Jockers Dennis Kidd Ronald L. Pugh Steven L. Retherford Lawrence E. Rice Terry W. Rose Alvin R. Schaney Leroy Slater George W. Stickler Patrick H. Sullivan Chester Tirey Paul H. Ulreich Sherman Wagers Willard D. Walton Winfred Wilhoit Arnold Wilkinson WE WILL immediately reinstate, to the extent they may not already have been rein- stated, the following named strikers, and make them whole for any loss of earnings, plus in- terest, they may have suffered by reason of our refusal to honor all their reinstatement rights upon their recall to our employment: Randall C. Adkins Joel Aldridge Frank Barnes Robert L. Henley James C. Jonson Russell Price Kenneth Smith WE WILL offer to Johnny Nickell and Gary Farrell immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they PEASE COMPANY 543 11. ILABOR OR(;ANIZ [ION The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III. TIll ALL.(EGED UNFAIR I ABOR PRACTICES A. Relevant Background and Preliminary Findings In a Decision3 issued August 25, 1978, the Board found that the Respondent had violated the Act by. inter alia, refusing to bargain in good faith with the Union as the exclusive representative of its employees in the fol- lowing unit: All factory production and maintenance employees employed by the Respondent at its 900 Forrest Avenue, Hamilton, Ohio, 2580 Bobmeyer Road, Hamilton, Ohio, and 7100 Dixie Highway, Fairfield. Ohio locations, but excluding all office clerical em- ployees, professional employees, guards, supervisors as defined in the Act, and all other employees. The Board found that Respondent entered into and continued contract negotiations with the Union with a closed mind, having determined that it would not negoti- ate a contract except on its own terms which it knew would be unacceptable to the Union and would force the Union to strike.4 The Board further found that Respond- ent "orchestrated" the events resulting in the Union's strike commencing March I, 1977, and that the strike was from its inception an unfair labor practice strike. The strike commenced March 1, 1977, and ended August 18, 1977. The Board ordered Respondent to stop its bad-faith bargaining and bargain with the Union. It also ordered that strikers be reinstated upon application, and that any strikers refused reinstatement on application be made whole for wages lost as a result of the refusal. The Board's Decision in 237 NLRB 1069 (1978) is now before the United States Court of Appeals for the Sixth Circuit. A decertification petition concerning the employees in the appropriate bargaining unit involved was filed on July 6, 1979.5 it was dismissed by the Regional Director on August 8, 1979. The dismissal was affirmed by the Board on September 26, 1979. Pursuant to a unit clarification petition filed by the Union, the Regional Director issued a decision in Case 9-UC-168 on November 15, 1979, finding that employ- ees of Respondent's Mason, Ohio, Sidelight operation, which involved about 20 employees, were an accretion to the existing unit, and that the approximately 10 em- ployees of Respondent's Mason, Ohio, Trans-10 oper- ation were not. Prior to this Decision Respondent con- tended neither Mason group was in the unit. I therefore find that the appropriate collective-bargain- ing unit is now: 3 Pease Company, 237 NLRB 1069 (1978) 4The negotiation meetings by the Board's Decision occurred during the period December 15, 1976, to May 13, 1977 ' Case 9-RD-901 All factory production and maintenance employees employed by the Respondent at its 900 Forrest Avenue, Hamilton, Ohio, 2580 Bobmeyer Road, Hamilton, Ohio, and 7100 Dixie Highway, Fairfield, Ohio, and its Mason, Ohio Sidelight operation, loca- tions, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act, and all other employees. I further find that at all times material herein the Union has been the designated exclusive collective-bar- gaining representative of Respondent's employees in this unit. B. January 19, 1979, Warning to William Ruebel Ruebel was hired as a production worker on August 1, 1977, during the strike. He became a union member on January 17, 1979, and from that time wore a union button. During his morning break on January 18, 1979, Ruebel was seated in the lunchroom when employee Ray Rule entered. Ruebel told Rule that the table where Reubel was sitting was a union table and that "scabs" who had joined the Company after the strike was in progress were not welcome. Rule made no reply and sat down at the table with Ruebel. It was time for Reubel to return to work, and he did so. The following morning, January 19, Ruebel was called into Supervisor Jack Finn's office. Supervisor Elmer Haddix was also present. Finn told Ruebel that he was harassing other employees and imposing his views on them. Ruebel asked what he was referring to, and Finn replied that it had happened the day before and Ruebel knew what it was about. Ruebel denied any harassment and asked to confront his accusers. Finn said there would be no other comments about it. During this ex- change Finn showed Ruebel a paper titled "counselling" bearing Ruebel's name. It related, inter alia, that Finn and Haddix had met with Ruebel on January 19, 1979, and Ruebel was informed that the Company "would not tolerate him imposing his beliefs and harassing his co- workers." Inasmuch as the document was signed by Finn, and by Haddix as a witness, and relates in print thereon that the original was for the personnel file, it is obvious that it was executed for insertion into Ruebel's personnel file. The statement therein that "Any further actions of this nature on Bill's part would result in disci- plinary action up to and including termination" is ad- mitted in Respondent's brief to be a disciplinary warning. Respondent contends that the General Counsel has not met his burden of proof. To the contrary, the General Counsel has shown union activity by Ruebel, public notice of that activity by the union button he wore, and discipline within 2 days of the commencement of Rue- bel's union affiliation and wearing of the button. The General Counsel thus adduced sufficient evidence to re- quire Respondent to come forth and rebut it. Respondent did not so do, and the General Counsel's prima facie case stands unrebutted. Respondent's argument of substantial business justification is unsupported by any evidence other than its own ipse dixit. Moreover, Ruebel's com- PEASE COMPANY 543 544 DICISIONS OF NATIONAL LABOR RELATIONS BO(ARD menit to Rule provoked nothing. Rule sat down with Ruebel and apparently took no overt offense. There is no evidence that Rule complained, nor is it explained how Respondent learned of the incident. I cannot conceive that Respondent polices its employees with such rigidity that every pejorative word spoken by employees to each other becomes a matter of extreme concern warranting prompt written warnings and threats of discharge on repetition, nor can I conceive that pejorative words are totally unknown and unused among Respondent's em- ployees. There is no evidence anyone other than Ruebel was ever disciplined for similar conduct. Respondent provides no guidance as to its scale of values in judging the relative offensiveness of an epithet, and I am persuaded that its judgment of Ruebel's state- ment was based on nothing more than knowledge of his union activities, which were self-evident from his union button and the use of the term "scab," and a desire to dampen his ardor for the Union. His statement to Rule was activity on behalf of the Union and I find nothing in it so extreme or provocative, without more, as to render it unprotected. I conclude, as the General Counsel urges, that Respondent, surprised at Ruebel's embrace of the Union and fearful the virus might spread to other strike replacements, warned Ruebel of discipline "up to and in- cluding termination" because of his union activities and thereby interfered with, restrained, and coerced employ- ees in violation of Section 8(a)(l) of the Act, and violat- ed Section 8(a)(3) of the Act by issuing the written warning to him for the purpose of discouraging Union activities among its employees. C. Issues of Reinstatement The Board has already decided that the strike involved herein was an unfair labor practice strike and that Re- spondent therefore has an affirmative duty to reinstate the strikers upon application and to make them whole for wages lost by reason of any refusal to reinstate on application. That decision is the law of this case insofar as the duty to reinstate and make whole is concerned. The issues before me are (I) whether the Union made a valid application for reinstatement on behalf of all the unfair labor practice strikers, (2) whether Respondent unlawfully refused to reinstate some 30 strikers who did not make individual requests, and (3) whether 7 other strikers recalled to work were properly reinstated. It occurs to me that all these matters might more appropri- ately be disposed of in compliance proceedings in 237 NLRB 1069 (1978), after and if the circuit court enforces the Board's Order. The parties have, however, substan- tially litigated these issues and I consider it incumbent on me to decide them. On August 18, 1977, Jesse McVey, president of the Union, directed a writing to Respondent reading as fol- lows: The members of Local 1787 hereby offer, uncondi- tionally, to return to work immediately. /s/ Jesse McVey Respondent concedes in its brief that its counsel received the writing on August 18. 1977 Jesse McVey President, Local 1787 for Local 1787 and its members. The membership of Local 1787 is composed exclusive- ly of Respondent's employees.7 Respondent's claim that it had no means of knowing who was or was not a member of Local 1787 is a pure makeweight without any substance. The Respondent certainly knew which of its employees went on strike, and it also knew that they were all union members by virtue of the requirement of membership as a condition of employment as set forth in article III of the collective-bargaining agreement be- tween the parties which expired the day before the strike began. Moreover, Respondent's chairman of the board, James L. Pease, Jr., conceded that to Respondent's knowledge all employees in the bargaining unit prior to the strike were union members. The controlling principle in this type situation has been succinctly stated by the Board: Under settled law it is within the Union's authority, as the employees' bargaining agent, to make uncon- ditional application for reinstatement on behalf of the strikers and impose upon the Respondent the duty to offer reinstatement to such strikers.8 [citing Trinity Valley Iron and Steel Company, Division of C. C. Griffin Manufacturing Company, Inc., 158 NLRB 890 (1966), enfd. in pertinent part 410 F.2d 1161 (5th Cir. 1969)] The Union is the employee bargaining agent herein. Its application of August 18, 1977, was unconditional and the reference therein referring to members of Local 1787 clearly advised Respondent that the application was on behalf of its employees. 9 Respondent had no reasonable basis on which to conclude that the application was on behalf of less than all of the strikers, or that it was on behalf of anyone other than the strikers. I find that the Union's message of August 18, 1977, was a valid and un- ambiguous unconditional application for reinstatement on behalf of all the strikers. That many strikers submitted in- dividual requests does not vitiate the validity of the Union's application. Inasmuch as Respondent has ignored its duty to offer reinstatement to certain unfair labor practice strikers t° I Pease Company. supra at 1070 8 Gladwin Industries, Inc., 183 NLRB 280 (1970) 9 Respondent's contention that it had no means of knowing who were union members is rejected. If it were confused, which I, find it was not, it had only to ask McVey I am sure he would have been happy to oblige 'o These employees are: Timothy . Allgaier Samuel J. Bellissimo Charles G. Briggs Larry E. Campbell Charles Chapman Samuel M. Cobb Andrew R. Dudley Larry G. Elliott Larry L. Fagin, Jr. Robert E. Garrett William L. George Dennis Kidd Ronald L. Pugh Steven L. Retherford Lawrence E. Rice Terry W. Rose Alvin R. Schaney Leroy Slater George W. Stickler Patrick H. Sullivan Chester Tirey Paul H. Ulreich Continued PtlASE C()MPANY 545 within 5 days of McVey's unconditional offer o their behalf. and thereby has violated Section 8(a(.3) and (1) of the Act,' I find that the strikers are entitled to imnie- diate reinstatement and backpay commencing January 5, 1979,' 2 and continuing until such time as they are of- fered reinstatement. Laredo Coca-Cola Bottling Company, 241 NLRB 167, fil. 3 (1979). The only issue with respect to Randall C. Adkins, Joel Aldridge, Frank Barnes, Robert L. Henley, James C. Jonson, Russell Price, and Kenneth Smith is the adequa- cy of their reinstatement. Respondent takes the position that they were economic strikers and their recall to Re- spondent's Mason plant fulfilled Respondent's obligation to them vis-a-vis reinstatement. The General Counsel, proceeding on the theory these employees were unfair labor practice strikers, disagrees. In view of the Board's Decision in Pease, supra, the rules pertaining to reinstate- ment of unfair labor practice strikers are controlling. Re- spondent must, absent special circumstances, recall the strikers to their prestrike jobs under the same terms and conditions of employment that existed before the strike, discharging replacements if necessary to fulfill this duty. 1 The Mason facility opened in April 1979, and the Re- gional Director found, in his decision of November 15, 1979,14 that the Mason Sidelight operation functions as a department of the Ever/Strait plant, and that all of Mason Sidelight's products were formerly produced at bargaining unit facilities. For these reasons and others, the Regional Director found that the Mason Sidelight employees were an accretion to the existing bargaining unit. Until this decision by the Regional Director, Re- spondent maintained that no Mason employees were part of the bargaining unit. Barnes, Price, and Smith' 5 were interviewed upon recall by Neil Jackman, Respondent's employee relations manager, who told them the only openings he had were in the Mason plant, and they would not be permitted to transfer to another plant. He advised Barnes that this was a new company policy. Barnes and Price were paid a lower hourly wage on recall, and all three had to com- mute several miles farther to work than they had prior to their layoff. Barnes and Price were assigned duties differ- ent from those of their former jobs, but Smith was given work like that which he had previously performed. At the time of the recall of these employees in May 1979, the Mason Sidelight employees had not yet been found to be an accretion to the established bargaining unit, and Respondent's position until November 1979 that Larry E. Hibbard Sherman Wagers Rodney P. Hicks Willard D. Walton Richard L. Hosteller Winfred Wilhoil Michael D. Jockers Arnold Wilkinson The identity of these employees was derived fronl tipulationrs of the parties relating thereto I See. e g Colunhbia Tribune Pubhlishing Co., 201 NLRB 538. 552 533 (1973) 12 This is the dale 6 months prior to the filing of Case 9 CA 14071 to which an award ma) be made A hackpa. entitlement accruing to them prior to that dale s ill h Ia matter of comnpliance with 237 NLRH 1069 (1978). i:' Trinity Valley Iron and Steel (lmpan. u D)ivision o, C. C Grifin Manufacturing Company. Inc. 158 NIlRH 89). 895 ( 196) " Case 9-UC-168. La Adktins, Aldridge, Henley, and Jonson did not testify, but I am per- suaded by the similarity of Jackman's statements to each of the other three that all seven were told the same thing Mason employees were not part of the unit requires a conclusion that Respondent considered that it as recall- ing these seven unit employees. whom it knew to he union adherents anti strikers, to nonunit jobs Respondent has not met its burden of showing that changed circum- stances prevented it from recalling them to jobs in the unit as it then existed. That they later wRound up in the unit represented by the Union by virtue of the Regional Director's Decision does not pso facto change the situa- tion as it existed in May 1979. Moreover, by placing these employees in a posture where acceptance of the Mason employment required them to, at that time. forego union representation on terms and conditions of employment, Respondent faced them with the choice of abandoning the Union as their representative or refusing employment. This an employer may not do, and by so doing Respondent interfered with, restrained, and co- erced them in violation of Section 8(a)(1) of the Act."' Although this item is not specifically alleged in the com- plaint, it is closely related to the failure-to-reinstate alle- gation of the complaint and the composite testimony of Barnes, Price, and Smith on this point is credited. In these circumstances, a finding of a violation of the Act is warranted.17 Furthermore, the application of a new policy on interplant transfers, as Jackman told Barnes it was, to these returning strikers has not been justified by Respondent. In the absence of credible evidence to the contrary, I conclude that the General Counsel has made out a case that this policy was applied in order to pre- vent the returning strikers at Mason from returning to the unit and union representation. I am persuaded by all the foregoing that Respondent has not met its obligation to fully reinstate these seven employees, L and that its failure to so do wvas motivated by a desire to deny them Union representation Accord- ingly, I find Respondent violated Section 8(a)(3) and (I) of the Act by failing and refusing to reinstate Randall C Adkins, Joel Aldridge, Frank Barnes. Robert L. Henley. James C. Jonson. Russell Price, and Kenneth Smith to their former unit jobs, or substantially equivalent unit jobs. under the same terms and conditions of employ- ment they enjoyed prior to the strike. The Refusal to Meet and Negotiate on July 23. 179 The decertification petition in Case 9-RD-901 as filed July 6, 1979. Jackman concedes that Respondent had been aware of the petition for some time prior to a scheduled negotiation meeing on July 23. 1979. It is likely that Respondent received a copy of the petition on July 9 or 10 in the normal course of the mails. Notwith- standing this advance notice, Respondent waited until July 23 when both parties arrived at the meeting place where Respondent's negotiator, Becker, told the Federal Mediator that Respondent did not feel it .would he proper to negotiate because the decertification petition posed a question of representation. There is no explaina- 1 Ra-Rich Manufacturing Corp)ration, 120 NLRB )O31. 5(te 57 (1958) l .4ickrmal n lilantu/,turin (rlpun . 241 N l R h21 (Il'2 ) 1* I \ o tt r on lgt . 111i ll ii ltlt r i llltlllllg ,l.lll. Rd recall io nolllllo on all ilppotl li t'lkll PASE COMPAN 545 - -- 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion why Respondent did not advise the Union of this position it was taking prior to July 23. It had almost 2 weeks to so do and arrange another meeting date. In the circumstances of this case where this event is surrounded by other unlawful acts of Respondent, including a proven pattern of acts designed to frustrate bargaining, I find that the delay was to Respondent's liking and that no prior notice of its intended refusal to meet was given to the Union because Respondent found it to its advan- tage to delay meeting in furtherance of its fixed plan to avoid meaningful collective bargaining. Respondent's po- sition was communicated to the Union by the Federal mediator and no meeting was held that day, nor have any later negotiations been had. Respondent claims an obligation to suspend negotia- tions because of the pending petition on the ground that a "real question of representation" was thereby raised. The failure to timely notify the Union of its intention casts doubt on the good faith of this position, and Re- spondent is wrong in its position as a matter of law. The Board's order to bargain of August 25, 1978,' 9 had not been complied with at the time of the petition, and has not yet been complied with. The existence of an unreme- died unlawful refusal to bargain prohibits a finding that a real question concerning representation exists. 20 Re- spondent's reason for refusing to meet therefore has no merit. I am persuaded that Respondent knew this. The record of this and the prior case displays a studied famil- iarity with techniques designed to defeat bargaining with a union, and Carl Becker is an attorney specializing in the field of labor relations,21 whom I conclude was well aware of the controlling legal principles. While I cannot and do not find, on the record before me, that the peti- tion in Case 9-RD-901 was a device of Respondent, I can and do find that its filing was seized upon by Re- spondent as a pretext to avoid meeting and bargaining with the Union as it was obligated to do. I conclude and find that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet and bar- gain with the Union on July 23, 1979, and failing to ar- range another meeting. In my view, the Union was placed under no obligation by Respondent's unlawful act to request another meeting. He who destroys should be held liable to restore th2 status quo ante. E. The Emergency Loan Program On June 25, 1979, Respondent notified its employees that it was adding an interest-free emergency loan pro- gram to "Employee Benefits." This program was neither proposed to the Union in negotiations nor discussed with the Union prior to its implementation. The clearly unilat- eral act of Respondent is of the same genus as the assist- ance provided employees to obtain personal bank loans which the Board found violative of Section 8(a)(5) and (1) of the Act in Donn Products, Inc. & American Metals Corporation, 229 NLRB 116, 117 (1977), where the em- ployees, as here, had a union as their exclusive repre- sentative. I find Respondent violated Section 8(a)(5) and ' Pease. supro. 10 K-Mart Corporation, 243 NLRB 483 (1979); Big Three Industries Inc., 201 NLRB 197 (1973). 2' Pease Company, supra at 1070 (I) of the Act by unilaterally promulgating and imple- menting the emergency loan program. F. Merit Increases and a General Wage Increase On December 29, 1977, the Union was notified by Re- spondent that it had implemented a new pay system with wages lower 22 than those in the expired contract and a merit system for calculating increases. I credit Union President Jesse McVey that Respondent's negotiator, Becker, presented him with this on December 29, 1977, as the program Respondent had then adopted. I also credit McVey that Becker earlier told him in June 1977 that the only way the Union could get a contract was to accept the existing wages, and agree to no cost-of-living increases and the permanent retention of the striker re- placements. From this, I conclude that Respondent had not in December 1977 departed from its course of bar- gaining found unlawful in 237 NLRB 1069 (1978). Thereafter, Respondent applied the merit raise plan to returning strikers as well as strike replacements. Respondent's reliance on proposals made during the spring of 1977 with respect to basic rates and merit in- creases is misplaced. Respondent has been found guilty of bargaining in bad faith throughout that period, and there is nothing in this record to persuade me Respond- ent has changed its approach. To the extent Respondent claims impasse over wages it is sufficient to note that no impasse other than the breakdown in negotiations caused by Respondent's bad-faith bargaining ever existed be- tween the parties. It is well settled that no valid impasse can exist in the presence of bad-faith bargaining.2 3 Inasmuch as the promulgation and initial implementa- tion of the wage scale and merit system occurred long before the 6-month statutory limitations period set forth in Section 10(b) of the Act, they may not be found un- lawful herein. 24 The question as to whether the individual merit in- creases given to employees pursuant to this program, within the 10(b) period constitute separate violations of the Act, as the General Counsel contends, warrants an affirmative answer. It would appear well within the com- pass of the principle applied in General Motors Acceptance Corporation2 5 to find that each grant or denial of a merit increase to employees within the 10(b) period, without offering the Union opportunity to bargain thereon, is a separate and distinct unilateral action violative of Section 8(a)(5) and (1) of the Act. I so find. Respondent announced a general wage increase of 25 cents per hour on May 30, 1979. The announcement read as follows: 2 Respondent's employee relations manager, Jackman, concedes that in most instances the age rates were substantially lower than the previ- ous contract. and that the merit system as put in effect before it as proposed to the Union. :' United Contractors, Incorporated. JMCO Trucking Incorporated. Joint Employers, 244 NLRB 72 (1979). 24 It occurs to me, however, that these matters are swell within the scope of both the charge and the complaint in Pease Company. upra. and may also properly be a subject for compliance with the Decision therein. 2s 196 NLRB 137 (1972). PEASE CO()MPANY 547 SPECIAL ANNOUNCEMENT TO ALl. ILANT PERSONNEL It has been our practice under our National Per- sonnel Policy to periodically review wage rates to insure that your salary remains fair and equitable and compares favorable with wages in other compa- nies in the area performing similar type work. Such a review has recently been completed and effective Monday, June 4, 1979, salaries will be in- creased as shown in the attached schedule. Each employee will immediately receive the $10 per week (25 per hour) increase in their current base rate and because the top rate in each classifica- tion has been raised you will have the opportunity to continue earning even further salary increases in the future thru the regularly scheduled performance review program. Your supervisor will be happy to answer any questions you might have concerning this increase in your salary schedule. PEASE COMPANY I credit McVey 2 6 that neither this increase nor any in- crease was proposed to the Union, and I credit him and Union Vice President Hume that this announcement was the irst they heard of it. It is plain on the face of the anrouncement that the increase was due to Respondent's national personnel policy rather than negotiations. It can fairl be said that the announcement itself illustrates a fixe' determination to adjust wages in accord with its corporate policy and shows that Respondent was still op- erating with "a closed mind" determined to operate solely on its own terms when it instituted the general in- c-ease. The number of negotiating meetings after May 1977, Culminating in a final meeting on February 29, 1979, is not clear but it is clear there were several, perhaps as ma.y as 10 or more. Wages were discussed several times during these meetings. To the extent Respondent relies on wage discussions up to and including the May 1977 me ting, there is no support for its claim of impasse be- ca u,e these meetings were, as the Board has found, per- meated by Respondent':. bad-faith bargaining. The credi- ble evidence with respect to negotiations thereafter does not show an impasse flowing from good-faith bargaining, or in fact any impasse at all on wages warranting Re- spondent's institution of the general increase. 27 Even if a bona fide impasse on wages did exist, Respondent's uni- lateral wage increase was not consistent with the reject- ed offers previously made by Respondent and therefore violated Section 8(a)(5) and (1) of the Act. 28 G. Overtime and the Discharges of Johnny iVickell and Gary Farrell I note preliminarily that at the outset of negotiations the parties thereto agreed that all agreements would be '" On comparative demeanor, McVey 'was more belie':able than Jack- man where Jackman was otherwise unsupported b credible evidence I2 1 find that Respondent neter made an offer to Ihe nilon f the gen- eral increase it put in force on Ma 31). 1979. 21 Allen WH Bird 11, 227 NLRB 1355, 135 (1977) tcntati ve until total agreement as reached. 2 No total agreement has been reached as cyt. As in Electri-Fe'x Company, 228 NLRB 847, 849 (1977), there was no agreement that particular contract provisions could be implemented, or would be implemented upon tentative agreement, and Respondent's proposal, accepted by the Ulnion, that everything would be tentative pending total agreement is akin to the Union's statement, in Electri- Flex. of ratification as a condition precedent. I conclude that both parties fully understood that tentative agree- ments were not fixed as in concrete but were subject to change along the negotiation road toward complete agreement. I therefore find that Respondent's reliance on such tentative agreements as justification for their imple- mentation is misplaced. The parties exchanged various proposals on overtime, but no agreement was reached except tentative agree- ment in the spring of 1978 that employees were expected to work the amount of overtime needed and employees who failed to work the overtime they had agreed to work would be subject to normal disciplinary measures for such absence. One of Respondent's fixed goals, which it did not get, was agreement on equalization of overtime assignment. In August 1979, Respondent changed the 8-hour shift schedule to a 9-hour schedule. This is not alleged as un- lawful, but I am of the opinion it amounts to adding I hour of overtime a day. It is obvious that 5 days of 9 hours would result in 5 hours of overtime per week. I regard Respondent's effort to cover this under the cam- ouflage of a regularly scheduled workday, and thus avoid calling it overtime, as a transparent effort to obtain a measure of the overtime equalization that it had not as yet achieved as a matter of contract. I therefore agree with employees Nickell and Farrell that this new sched- ule required them to work 1 hour per day overtime. Prior to the strike, overtime work was voluntary, in- cluding Saturday, and no employee had been disciplined for refusal to work it until Nickell and Farrell were dis- charged. Both had consistently refused to work overtime prior to the strike. This was permitted by the then exist- ing contract proviso that no employee who consistently refused overtime was to be discriminated against unless he frequently failed to work the overtime that he had agreed to work, in which case he could be transferred to another job requiring less overtime. The only change in treatment of those failing to work overtime tentatively agreed to by the parties in current negotiations was the imposition of normal discipline on those who agreed to work overtime. Mandatory overtime work was never agreed to. Nickell was given several warnings for his other unsa- tisfactory work performance, but the reason for his ter- mination was his consistent practice of refusing to come in and work until I hour after the beginning time sched- uled for the 9-hour shift. He did so on the ground he was not required to work overtime. The report of his termination interview on August 27, 1979, signed by Su- pervisor Blank, reads: Pr Pai, ConIpanr, upa at 1()70 1EASE (A)MI'A 547 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John reported for work one hour late as he had done for ten straight days. I met him at the plant entrance and informed him that, since he refused to work the assigned hours and did not observe the warnings given him, he was hereby terminated. The issue is not Respondent's scheduling but the en- forcement of that portion constituting overtime' work by discharging employees who neither agreed to nor did work the overtime assigned. Respondent's argument that Respondent's notification to the Union that overtime could no longer be voluntary and the tentative agree- ment that employees needed were expected to work the overtime required constituted a binding agreement on mandatory overtime by every employee does not hold water. Respondent conveniently overlooks the further tentative agreement that discipline may be visited on an employee who has agreed to work but fails to do so. There was no agreement, express or implied, that an em- ployee who did not agree to work overtime and did not do so could be disciplined, or that employees who re- fused overtime could be disciplined. Discipline, certainly discharge, is obviously a term or condition of employ- ment, and Respondent not privileged to unilaterally impose such a penalty on the employees without giving prior notice and opportunity to the Union to bargain thereon. It is patent that this unilateral implementation of a discipline scheme was applicable to all employees. I find and conclude that by unilaterally implementing such a system Respondent violated Section 8(a)(5) and (1) of the Act, and by applying it to Johnny Nickell violated Section 8(a)(l) of the Act, both in the warnings based thereon and the discharge of Nickell.30 The situation of Farrell, who refused to work Satur- days or the extra hour, is similar to that of Nickell. He had received warnings for unsatisfactory behavior on the job, but the report of his termination interview on August 27, 1979, makes it plain that his refusal to work overtime was the dominating reason for his discharge, and his refusal to work Saturday the precipitating one. This is shown by the report of termination interview signed by Supervisor Ridden reading as follows, in perti- nent part: NATURE OF INTERVIEW: Termination inter- view, absenteeism and refusal to work departmental schedule. The interview began with an explanation to Gary that after very thourgh [sic] examination of his re- cords it was apparent that his absolute rate was well above average as documented in earlier interviews, and that, coupled with his continuing refusal to work departmental overtime schedule, its [sic] made his termination necessary. His absence from work this Saturday made final decision necessary. It was clear Gary had no intention of correcting the prob- lem. Gary said only that "he might work Saturday" but didn't show up this Saturday. :" Neither is alleged a a violation of Sec 8(a)(3) of the Act Like Nickell, Farrell's record indicates he is not a model employee, but, also like Nickell, his discharge pur- suant to an unlawfully implemented disciplining program violated Section 8(a)(l) of the Act. In addition to the foregoing, the discharges of Nickell and Farrell, at approximately the same time, for resisting forced overtime, an item of importance to all unit em- ployees, were discharges reasonably calculated to im- press on other employees that Respondent was deter- mined to have its way on overtime equalization whether the Union agreed or not, indicated to them that union representation was futile, therefore restrained and co- erced them in the exercise of their statutory right to rep- resentation, in violation of Section 8(a)(l) of the Act. H. Grievance Matters There has been no agreement on a grievance proce- dure. It appears that since the early spring of 1979 the attorneys for the parties have attempted to negotiate such a procedure without success. The record indicates that some grievances have been processed and heard in 1979, but others have given rise to the issues before me. These latter grievances will be discussed in chronologi- cal order except where clarity of exposition dictates oth- erwise. Margaret Gutierrez filed a grievance on February 29, 1979, protesting her discharge. Union President McVey discussed the grievance with Respondent's employee re- lations manager, Jackman, and requested a hearing on it. Jackman was told by Respondent's chairman, Pease, not to hear the grievance while the procedure was being ne- gotiated by the parties' lawyers. Jackman advised McVey that Respondent was deferring grievance hear- ings during these negotiations. McVey - quested the record of Gutierrez' absences. The reason for her dis- charge assigned by Respondent was absenteeism. Jack- man refused to furnish this information."' Jackman claims that when Respondent later implemented the grievance procedure he simply neglected to contact McVey. The next contact regarding Gutierrez was initiated by McVey in a letter of April 19, 1979, to Respondent's chairman, Pease, wherein McVey protested the inability to get Gutierrez' grievance processed and Respondent's refusal to show the Union her absentee records. He also requested an immediate meeting on the grievance, with Respondent prepared to furnish the requested records at that meeting. Pease replied, by letter of May 4, 1979, stating, in pertinent part: In answer to your letter of April 19, 1979, the Company submitted sometime ago to your attorney a procedure by which it proposed to handle griev- ances. It is our understanding that your attorney re- jected that procedure, and has refused to submit any counterproposel to Thomas A. Brennan, our coun- sel. Accordingly, we have not, in fact, refused to process grievances, but have held them in abeyance " This recital of the Jackman-McVey discussions is a composile of the credited portilns of the testimntty of McVcy and Jackmlan PEASE COMPANY 549 until a suitable procedure is worked out through ne- gotiations between our attorney and yours. Since your attorney has refused to submit a counter-proposal, we are submitting with this letter a copy of the grievance procedure we will now follow in processing grievances. A copy of this pro- cedure is also being sent to your attorney. The grievance procedure (that is currently the subject of negotiations) is intended to be part of a total collective bargaining agreement. We stand ready, willing, and able to negotiate with you at any time to effectuate the completion of a collective bargaining agreement encompassing a grievance ar- bitration procedure. The attachment referred to in this letter reads: GRIEVANCE PROCEDURE I. Definition of Grievance: An employee grievance shall be defined as follows: a. An objection by an employee to a written rep- rimand, suspension or discharge given that em- ployee for absenteeism, poor job performance or violation of company policy or work rules; or b. an objection by an employee to a shortage in that employee's normal and customary wages due to his or her having actually worked hours for which he or she has not in fact been paid. 2. Procedure: Step . Should an employee feel he or she has a grievance, the employee involved may orally dis- cuss the matter with his immediate supervisor. The employee and the supervisor will attempt to amicably settle the grievance at this Step 1. All discussions will take place after working hours. Step 2. If the employee involved is dissatisfied with the solution in Step 1, he or she may appeal the supervisor's decision to the supervisor's man- ager within four (4) calendar days of the supervi- sor's decision in Step I by filing a written form with the manager setting forth all of the basic facts involved in the grievance and the remedy desired on a form available from the supervisor. If the matter is not appealed within four (4) cal- endar days it shall be considered settled. The manager will set a date for a meeting within seven (7) calendar days of receiving the written appeal to discuss the matter with the employee involved. This meeting shall take place after working hours. The employee involved may choose to have another employee of his choice present to represent him. The manager shall render his decision in writing within seven (7) calendar days of the meeting. This answer shall be final. 3. Time Spent. An employee filing a grievance which proves to be meritorious and for which the company reaches a decision in his favor shall receive pay at his or her basic hourly rate for actual time spent with the supervisor in Step 1, not to exceed one-half (1/2) hour's pay; and at his or her basic hourly rate for actual time spent with the man- ager in Step 2, not to exceed one-half (1/2) hour's pay. If the grievance proves unmeritorious the employee will receive no pay for time spent in Step I and/or Step 2. 4. General This procedure does not constitute an agreement to arbitrate any grievance or a waiver by Pease Company of any rights it may have at common law or under any local, state, or federal statutes. Gutierrez' grievance has not been answered and the requested information was not furnished. On March 21, 1979, employee Rex Redmon filed a grievance over pay for time off. Union steward David Stewart handed it to department supervisor Larry Ray. I credit Ray that he told Stewart he was not sure what to do with it, but would consult with his supervisor Steve St. John. St. John told Ray there was no established grievance procedure yet and to return the grievance. Ray gave the grievance back to Stewart, and told him he (Ray) did not need it because there was no grievance procedure.3 2 Redmon's grievance has never been further processed. On or about April 16, 1979, Union Vice President Hume took a written grievance concerning the denial of a pay increase to Larry Henson, and offered it to Super- visor Jack Finn, who had in the past processed griev- ances. Finn declined to take it. Whether, as Hume testi- fied, Finn said he could not accept it and was refusing it, or whether, as Finn testified, he did not say he refused it but that he could not accept it and would make an ap- pointment for Hume with Facility Manager St. John, the result is the same. Finn refused to accept the grievance. Finn credibly testified that company policy had changed and supervisors were no longer to accept grievances, but to recommend going to the facility manager. The Henson grievance has not since been processed. On or about April 24, 1979, Hume tried to present a written grievance to St. John concerning a complaint by Edmond Benson that he had been denied union represen- tation at a predisciplinary interview. Benson alleged that this was in violation of a settlement agreement approved by the Board. St. John told Hume the Company was not accepting grievances of that nature. Union Steward Gadd gave two grievances to Third- Shift Manager Raymond Dawson on October 14, 1979. One concerned a complaint by Bobby Chandler that he was discriminated against in job bidding. The other, filed by Gadd, alleged unsafe emissions of smoke and fumes on the job and discriminatory application of a safety glasses policy. Dawson had earlier talked to Chandler 32 I credit Ray's version on this point PEASE COMPANY 54q 550 IDECISIONS ()F NATI()NAI. LAB()R REL.ATIONS O()ARI) who then expressed satisfaction.33 With respect to the smoke item, Dawson testified that was a matter to report but not a grievable item. On October 19, 1979, Dawsonr wrote Gadd that "The subjects referred to do not in- volve disciplinary action taken or a shortage of wages for hours actually worked therefore whether or not this matter is grievable is a subject of negotiations." This reply is obviously an implementation of the "Grievance Procedure" placed in force by Chairman Pease on May 4, 1979. Dawson also wrote Chandler, on October 19, a note to the same effect. On October 20, 1979, McVey sent the following letter to Pease and Jackman: It has come to my attention that a meeting on the grieviance [sic] relating to James Hendrix's dis- charge [sic] was schedualed [sic] by the Pease Com- pany Oct. 16, without notification to the Union. It has also come to my attention that the compa- ny has been sending answers to the grieviances [sic] to the employees without sending a copy to the Union. In the future please see that copies of all an- swers are sent to me. I would appreciate an explanation of why these procedures have not been followed in the past and an assurance they will be followed in the future. Pease and Jackman both responded on November 19, 1979. Pease wrote: In answer to your letter of October 20, 1979, we are not aware that the procedures you set forth were, in fact, agreed to between the Company and the Union. Would you kindly advise us what docu- ment sets forth these procedures and forward a copy to me? We are processing all grievances in accordance with the requirements of the National Labor Rela- tions Act and have afforded all grievants the right to have a representative of the Union present at any appropriate time required by the National Labor Relations Act. Jackman wrote to Hendrix, with copy to McVey: Jesse McVey has suggested that he was not ad- vised of the grievance hearing scheduled for Octo- ber 16, 1979. Under our present grievance proce- dure it is the employee's responsibility to request that another employee [or union official] be present. Therefore, should you wish to have another meet- ing regarding your grievance, with Jesse or an em- ployee present, please call me to schedule one. McVey replied to Pease, on November 26, 1979: Thank you for your letter of November 19. In re- sponse to your request for documents, enclosed are: A. A copy of a notice to employees that you per- sonally signed this year, promising them that you would not refuse to bargain collectively, upon re- 33 Chandler did not testify. quest, with the Union concerning employee grievances. The requests I have made seem per- fectly clear. B. A copy of the grievance procedure in the 1974-77 contract. You will notice that the final pre-arbitration step there which has been agreed to verbatim in the current negotiations-provides for presentation by the steward and a higher Union official. This can hardly be done when the Union is not notified of scheduled grievance meetings, or provided with copies of grievance answers. I hope this satisfies your stated need for documenta- tion. On the foregoing evidence I have no difficulty in find- ing that the Respondent unilaterally altered the griev- ance procedure previously established under the expired contract, and thereby violated Section 8(a)(5) and (1) of the Act.3 4 In sum, Respondent arrogated to itself the sole authority in deciding what subject was grievable, precluding all matters relating to wages, hours, and con- ditions of employment except those few enumerated in the "Grievance Procedure" announced to McVey by Pease. Moreover, it reserved to itself the final decision on the merits of any grievance it designed to consider. A more complete rejection of the Union's representation rights, while still preserving the facade of an orderly procedure, is difficult to imagine. Respondent's handling of the specific grievances recit- ed above was in accord with its unilaterally and unlaw- fully instituted procedure and amounts to unlawful uni- lateral implementation thereof and frustration of any meaningful role of the Union in grievance processing. This is a flagrant violation of Section 8(a)(5) and (1) of the Act. Respondent's actions in the grievances of Gu- tierrez, Redmon, Henson, Benson, Chandler. and Gadd amounted to a refusal to process grievances, plainly served notice on employees that Union representation in these matters was futile, and tended to interfere with, re- strain, and coerce them in the exercise of their Section 7 rights, all in violation of Section 8(a)(1) of the Act. With respect to the refusal to furnish Gutierrez' at- tendance record, it is settled that the Union is entitled to this information35 and the refusal to furnish it violates Section 8(a)(5) and (1) of the Act. I. The Request for Performance Reviews By letter of April 19, 1979, McVey requested Re- spondent to provide him with copies of all performance reviews with respect to recently granted pay increases. As heretofore discussed, Respondent unilaterally imple- mented a new pay system with wage increases for indi- vidual employees to be calculated on a merit system de- vised by Respondent. Although a finding that this action was unlawful is precluded by Section 10(b) of the Act, its implementation continues. Wages are a mandatory :a Turbodyne Corporalion, 226 NLRB 522 11976). a' Mark/e Manufacturing Company of Sun Antonio, 239 NRB 1353 (1979) PEASE COMPANY S5 subject of bargaining and the Union is entitled to police the application of Respondent's system to unit employ- ees. It would seem the records requested are necessary to that mission. Moreover, the records requested are ob- viously relevant to bargaining on wages, on which there as yet has been no agreement, and the Union is entitled to them as an aid to negotiations. Chairman Pease, in his letter to McVey of May 4, 1979, evaded this request by referring McVey to negotiation proposals previously sub- mitted. This response completely ignored the fact that those proposals would not assist the Union in determin- ing how the new system adopted had been implemented, but the information requested very probably would. Pease's letter of May 4, 1979, may fairly be construed, inter alia, as a refusal to furnish the requested informa- tion. I conclude, contrary to Respondent's contention, that there is no probative evidence to support any conclusion that the Union expressly and unequivocally, or even by implication, waived its right to this information. "There can be no question of the general obligation of an em- ployer to provide information that is needed by the bar- gaining representative for the proper performance of its duties," N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967), and I conclude and find that Respond- ent's failure and refusal to furnish this information violat- ed Section 8(a)(5) and (1) of the Act. J. General Finding The entire pattern of Respondent's conduct disclosed by the unfair labor practices above found establishes that Respondent has chosen not to veer from its course of conduct previously chosen and fully described in the previous case,3 6 but has continued on its obdurate mis- sion of frustrating meaningful collective bargaining which might culminate in a final agreement. The record plainly shows that Respondent once embarked on a course of bargaining bereft of good faith has elected to continue and has continued on that course throughout the period before me for scrutiny, in violation of Section 8(a)(5) and (I) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in 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. All factory production and maintenance employees employed by Respondent at its 900 Forrest Avenue, Hamilton, Ohio, 2580 Bobmeyer Road, Hamilton, Ohio, and 7100 Dixie Highway, Fairfield, Ohio, locations and its Mason, Ohio, Sidelight operation, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act, and all other em- ployees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been and is the exclusive collective-bargaining representative of Re- spondent's employees in the unit described above. '6 Peawe Company. supra 5. By issuing a written warning to William Ruebel for the purpose of discouraging union activity, Respondent violated Section 8(a)(3) and (1) of the Act. 6. By refusing to process grievances Respondent vio- lated Section 8(a)(1) of the Act. 7. The strike which began on March 1, 1977, and con- tinued to August 18, 1977, was from its inception an unfair labor practice strike. 8. On August 18, 1977, the Union made an uncondi- tional offer, on behalf of all its member-employees on strike, to return to their former positions of employment. 9. By refusing to reinstate the following named unfair labor practice strikers, after the Union's unconditional offer on their behalf to return to work, Respondent vio- lated Section 8(a)(3) and (1) of the Act: Timothy J. Allgaier Samuel J. Bellissimo Charles G. Briggs Larry E. Campbell Charles Chapman Samuel M. Cobb Andrew R. Dudley Larry G. Elliott Larry L. Fagin, Jr. Robert E. Garrett William L. George Larry E. Hibbard Rodney P. Hicks Richard L. Hosteller Michael D. Jockers Dennis Kidd Ronald L. Pugh Steven L. Retherford Lawrence E. Rice Terry W. Rose Alvin R. Schaney Leroy Slater George W. Stickler Patrick H. Sullivan Chester Tirey Paul H. Ulreich Sherman Wagers Willard D. Walton Winfred Wilhoit Arnold Wilkinson 10. By refusing and failing to fully reinstate Randall C. Adkins, Joel Aldridge, Frank Barnes, Robert L. Henley, James C. Jonson, Russell Price, and Kenneth Smith, who were unfair labor practice strikers, Respondent violated Section 8(a)(3) and (1) of the Act. II. By refusing to meet and bargain with the Union on July 23, 1979, Respondent violated Section 8(a)(5) and (1) of the Act. 12. By unilaterally promulgating and implementing an interest-free emergency loan program for employees, without prior notice to the Union and without giving op- portunity to the Union to bargain thereon, Respondent violated Section 8(a)(5) and (1) of the Act. 13. By implementing employee merit increases and a general wage increase, without giving the Union prior notice thereof or opportunity to bargain thereon, Re- spondent violated Section 8(a)(5) and (1) of the Act. 14. By instituting and implementing a grievance proce- dure, without giving the Union prior notice thereof and opportunity to bargain thereon, Respondent violated Section 8(a)(5) and (1) of the Act. 15. By refusing to furnish the Union information neces- sary for and relevant to collective-bargaining negotia- tions and the investigation of grievances, Respondent violated Section 8(a)(5) and (1) of the Act. 16. By unilaterally implementing a new disciplinary program with respect to overtime, Respondent violated Section 8(a)(5) and (1) of the Act. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 17. By discharging Johnny Nickell and Gary Farrell pursuant to said unlawfully implemented disciplinary program, Respondent violated Section 8(a)(1) of the Act. 18. Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act by fail- ing and refusing to bargain in good faith with the Union. 19. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 7 The Respondent, Pease Company, Hamilton, Fairfield, and Mason, Ohio, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Issuing warnings to employees designed to discour- age union activity. (b) Refusing to process grievances presented by its em- ployees and/or the Union. (c) Refusing to reinstate unfair labor practice strikers on whose behalf the Union has made an unconditional offer to return to work. (d) Refusing to fully reinstate unfair labor practice strikers who have been recalled to work. (e) Refusing to meet and bargain with the Union as the exclusive collective-bargaining representative of Re- spondent's employees in the unit hereinabove found ap- propriate for bargaining. (f) Unilaterally, without prior notice to or consultation with the Union, promulgating and/or implementing loan programs, wage increases, merit reviews, grievance pro- cedures, or disciplinary systems or programs that have not been agreed to by the Union. (g) Refusing to furnish the Union, on reasonable re- quest, information necessary for and relevant to collec- tive-bargaining negotiations and/or the investigation of grievances. (h) Discharging employees, or otherwise discriminat- ing in any manner with respect to their tenure of em- ployment or any term or condition of employment, pur- suant to any program or system of discipline unilaterally imposed by Respondent without prior notice to and op- portunity to bargain thereon given to the Union. (i) In any other manner 38 interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- 37 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 findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 13 Respondent's repeated violations betray a proclivity to violate the Act, even in the face of an outstanding Board Order, and its misconduct herein, viewed against the background of the prior case, demonstrates a general disregard for employees statutory rights. Therefore, I find a broad order is warranted. Hickmort Foods, Inc., 242 NLRB 1357 (1979). propriate unit described above, with regard to rates of pay, hours of employment, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Furnish the Union, upon request, with information necessary and relevant to collective bargaining or griev- ance processing, including the attendance records of Margaret Gutierrez and the employee performance review forms utilized by Respondent during the calendar year 1979 and continuing to the date of said request. (c) Offer each of the following named employees im- mediate and full reinstatement to his former job or, if that job no longer exists, without prejudice to his senior- ity or other rights and privileges, and make him whole for any loss of wages he may have suffered since Janu- ary 5, 1979, by reason of Respondent's refusal to rein- state him, such backpay and interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 651 (1977):3 9 Timothy J. Allgaier Samuel J. Bellissimo Charles G. Briggs Larry E. Campbell Charles Chapman Samuel M. Cobb Andrew R. Dudley Larry G. Elliott Larry L. Fagin, Jr. Robert E. Garrett William L. George Larry E. Hibbard Rodney P. Hicks Richard L. Hosteller Michael D. Jockers Dennis Kidd Ronald L. Pugh Steven L. Retherford Lawrence E. Rice Terry W. Rose Alvin R. Schaney Leroy Slater George W. Stickler Patrick H. Sullivan Chester Tirey Paul H. Ulreich Sherman Wagers Willard D. Walton Winfred Wilhoit Arnold Wilkinson (d) Offer reinstatement to their pre-strike jobs, if those jobs still exist, to Randall C. Adkins, Joel Aldridge, Frank Barnes, Robert L. Henley, James C. Jonson, Rus- sell Price, and Kenneth Smith, and make them whole for any wages lost by reason of Respondent's failure to fully reinstate them, such backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth, supra, and Florida Steel, supra. (e) Offer Johnny Nickell and Gary Farrell immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of wages they may have suffered as a result of their discriminatory discharge, such backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth, supra, and Florida Steel, supra. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll reocrds, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. so See, generally, Isis Plumbing Heating Co., 138 NLRB 716 (1962). PEASE COMPANY 553 (g) Post at its Hamilton, Fairfield, and Mason, Ohio, posted by Respondent immediately upon receipt thereof, plants copies of the attached notice marked "Appen- and be maintained by it for 60 consecutive days thereaf- dix." 40 Copies of said notice, on forms provided by the ter, in conspicuous places, including all places where no- Regional Director for Region 9, after being duly signed tices to employees are customarily posted. Reasonable by Respondent's authorized representative, shall be steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other 4 I the event hat this Order is enforced b a Judgmenlt of a United States Court of Appeals. the words in the notice reading "Posted hy order of the Natitonal Labor Relations Board" shall read "Posted Pursil- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National l.ahor Relations Board" material. (h) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.