Allied Mechanical Services

National Labor Relations Board - Board Decisions

Jan 5, 2001

332 N.L.R.B. 1600 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1600
Allied Mechanical Services, Inc. and Plumbers and
Pipe Fitters Local 337, United Association of
Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States
and Canada, AFL–CIO. Cases 7–CA–38022, 7–
CA–38204, 7–CA–38440, 7–CA–38881, 7–CA–
39213, and 7–CA–39872
January 5, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On February 9, 1998, Administrative Law Judge Rich-
ard H. Beddow, Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
1. The judge found that employees Todd Hayes, Jeff
Kiss, Mark Lemmer, Ron Parlin, Jeff Warren, and Kirk
Wood had engaged in a protected unfair labor practice
strike. The Respondent argues that a July 26, 1996 con-
versation reveals that Hayes and Kiss were engaged in an
economic strike and were not entitled to immediate rein-
statement. We find no merit in this argument.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In sec. II, par. 1 of his decision, the judge correctly found that on
July 30, 1991, the Respondent voluntarily recognized the Union as the
collective-bargaining representative of its plumbers, pipefitters, weld-
ers, and shop employees. However, elsewhere in his decision, the
judge inadvertently referred to the Union as the “certified” bargaining
representative of the unit employees. We have modified the recom-
mended Order and notice to employees to accurately reflect voluntary
recognition of the Union.
2 The judge correctly found that the record was insufficient to show
any independent violation of the Act based on the Respondent’s failure
to prepare evaluations for Todd Hayes, Jeff Kiss, Mark Lemmer, Ron
Parlin, Jeff Warren, and Kirk Wood. Thus, there was no obligation on
the part of the Respondent to create such documents. However, in par.
2(d) of his recommended Order, the judge mistakenly ordered the Re-
spondent to furnish “copies of evaluations to Todd Hayes, Jeff Kiss,
Mark Lemmer, Ron Parlin, Jeff Warren, and Kirk Wood.” We have
modified the recommended Order to delete this requirement.
We have modified the recommended Order to include a broad cease-
and-desist order and an affirmative bargaining order, to more accurately
reflect the violations found by the judge, and in accordance with our
decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and
Excel Container, 325 NLRB 17 (1997).
The facts, as more fully set forth by the judge, may be
summarized as follows. On July 26, 1996, discharged
strikers Todd Hayes and Jeff Kiss visited the Respon-
dent’s office and spoke with John Huizinga, the Respon-
dent’s owner and president. In this conversation, Hayes
and Kiss offered to return to work from their strike.
Huizinga asked them why they had gone on strike and
what it would take for them to end their walkout. Both
responded that they wanted higher wages. When Huiz-
inga informed them that he would not pay them higher
wages if they returned, they left.
In arguing that the 1996 strike was an economic strike,
the Respondent ignores the judge’s findings that: (1) Un-
ion Organizer Knapp and the employees had discussed
engaging in a strike to protest the Respondent’s unfair
labor practices before the May 28, 1996 strike began; (2)
when this strike began, the Respondent was notified that
its “refusal to bargain in good faith and the other unfair
labor practices set forth in the most recent National La-
bor Relations Board complaint [was] the reason for the
unfair labor practice strike”; and (3) on their joining the
strike, Hayes and Kiss were unlawfully fired for their
strike participation and, as discharged strikers, were enti-
tled to immediate reinstatement by the Respondent. Ac-
cordingly, we adopt the judge’s finding that the above-
named employees were unfair labor practice strikers.
2. The judge concluded that the Respondent had an ob-
ligation to bargain with the Union before it granted the
discretionary merit raises to its employees on July 26,
1996. In support of its exception to the judge’s conclu-
sion, the Respondent cites Hyatt Corp. v. NLRB, 939
F.2d 361, 370 (6th Cir. 1991), for the proposition that an
employer need only be “willing to confer with the union
if the [discretionary] wages are questioned” and “it need
not bargain before it grants the raise [emphasis in origi-
nal].” In our view, the Respondent has misinterpreted
Hyatt, which we find to be factually distinguishable.
In Hyatt, the Board found that an employer had unlaw-
fully discontinued its existing wage-adjustment policy
during contract negotiations without giving the union
notice and opportunity to bargain. In affirming the
Board’s finding, the court held that the employer was not
precluded from following its existing practice of granting
merit wage increases simply because such increases con-
tained a discretionary element. In this context, the court
noted:

332 NLRB No. 171
ALLIED MECHANICAL SERVICES 1601
Where the company wishes to continue the practice of
granting partly discretionary wage increases, it may do
so during the bargaining period without violating the
labor laws so long as it is willing to confer with the un-
ion if the wages are questioned. In other words, it need
not bargain before it grants the raise.” [Emphasis in
original.]

Id. (citing NLRB v. Blevins Popcorn Co., 659 F.2d 1173,
1189 fn. 98 (D.C. Cir. 1981)). However, the Sixth Circuit
further explained that in those circumstances the employer
“was required to bargain with the Union over whether to
discontinue the increase or grant the increase and bargain
over the discretionary factors if requested to do so by the
Union.” Id.
In contrast to the situation presented in Hyatt, the Re-
spondent here altered its past practices of granting merit
increases, without giving the Union notice and an oppor-
tunity to bargain about the change. In 1996, Owner
Huizinga exercised more discretion in terms of whether
employees received raises at all and the amount of the
raises they received, e.g., the discretionary cost-of-living
wage adjustments. Furthermore, the Respondent failed
to respond to the Union when the latter questioned the
wage increases and sought copies of the employees’
evaluations and the implemented changes to the compen-
sation package.
3. In paragraph 2(d) of his recommended Order, the
judge directed the Respondent to provide “a copy of in-
formation regarding COBRA coverage for Todd Hayes
and Kirk Wood.” The Respondent excepts to this rem-
edy and urges us to find that it has no obligation to pro-
vide the requested information under the Consolidated
Omnibus Budget Reconciliation Act (COBRA).3 We
find no merit in this exception.
The amended consolidated complaint alleges that by
letters dated June 7, 11, and 17, 1996, the Union re-
quested that the Respondent “furnish it with information
in regard to what steps the Respondent was taking under
COBRA to provide health insurance coverage to Todd
Hayes and Kirk Wood.” COBRA requires, inter alia,
that an employer, as an administrator of a health insur-
ance plan, provide continued health insurance coverage
to an eligible employee whose employment is terminated
(other than by reason of such employee’s gross miscon-
duct) and to notify him of the right to elect such coverage
upon his termination from employment. It is undisputed
that the Respondent received the June letters and failed
to furnish any COBRA information regarding Hayes and
Wood to the Union.

3 29 U.S.C. § 1161 et seq.
An employer has a duty to furnish requested informa-
tion to a union which is the collective-bargaining repre-
sentative of the employees if the requested information is
relevant and reasonably necessary to the union’s per-
formance of its responsibilities. See NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1967). The standard for de-
termining the relevance of the requested information is a
liberal one, and it is necessary only to establish “the
probability that the desired information is relevant, and
that it would be of use to the union in carrying out its
statutory duties and responsibilities.” Id. at 437. We
find that the requested insurance information is presump-
tively relevant for purposes of collective bargaining and
processing grievances and must be furnished on request.
See Deadline Express, 313 NLRB 1244 fn. 1 (1994).
4. In paragraph 2(d) of his recommended Order, the
judge directed that the Respondent must “hold meetings
with employees Jon and Joel Kinney and Tobin Rees
[with representatives of the Charging Party present, if
requested by the employees] to discuss their evalua-
tions.” The Respondent claims that the record fails to
support this portion of the judge’s recommended remedy.
For the reasons discussed below, we adopt the judge’s
remedy.
The judge found that on July 26, 1996, John Huizinga,
the Respondent’s owner and president, conducted em-
ployee evaluations and issued employee raises. He fur-
ther found that, in accordance with the Respondent’s
practice in 1995, shortly after employees received their
1996 evaluations with their proposed raises, the employ-
ees were allowed to meet individually with Huizinga and
negotiate directly with him for a higher raise. Jon
Kinney testified that on or about August 1, 1996, he con-
tacted Huizinga’s secretary to arrange a meeting with
Huizinga or another representative of the Company to
review his evaluation. According to Kinney’s uncon-
tested testimony, a meeting with Huizinga never oc-
curred because the secretary “told [Kinney] not to
bother.” Similarly, his brother Joel Kinney testified that
he also requested, but was denied, a meeting with Huiz-
inga to discuss his evaluation. However, Tobin Rees
testified that he never requested to meet with Huizinga or
another company official to discuss his 1996 evaluation.
The judge found that the Respondent had a duty to
bargain about the amount of raises that employees re-
ceived in 1996. He found that the Respondent violated
Section 8(a)(1) and (5) of the Act by implementing these
discretionary July 1996 raises without giving the Union
notice and opportunity to bargain. In accordance with
this finding, the judge ordered that upon the Union’s re-
quest the Respondent must rescind all or part of these
unilateral wage increases, which would include those for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1602
Jon and Joel Kinney and Tobin Rees. Thus, we note that
if the Union requests bargaining about the 1996 wage
increases for the Kinney brothers and Rees, then each
employee is entitled, under the Respondent’s established
past practice, to a meeting with Huizinga to discuss his
evaluation regardless of whether he may have requested
such a meeting in 1996 when the rescinded raises were
unlawfully implemented.
5. By letter dated May 20, 1996, Knapp requested a
copy of the Respondent’s “emergency action plans at all
of [the Respondent’s] current and upcoming job-sites.”
The judge found that the Respondent’s failure to respond
to the Union’s request violated Section 8(a)(1) and (5) of
the Act. The judge recommended that the Respondent be
ordered to furnish the Union with a copy of its emer-
gency action plan. However, the Respondent argues,
inter alia, that there is no factual basis for the judge’s
finding and corresponding remedy. We find merit in the
Respondent’s argument.
Owner Huizinga testified without contradiction that
the Respondent did not have an emergency action plan.
He further testified that Michael T. Mason, a representa-
tive for the State of Michigan, informed him that his
company was not required to write such a plan. Thus,
the evidence is insufficient to establish either the exis-
tence of an “emergency action plan” or an obligation on
the part of the Respondent to create such a document to
distribute to the Union. See Whittier Area Parents Assn.,
296 NLRB 817 fn. 2 (1989); Bendix Corp., 242 NLRB
62 (1979). Accordingly, we have deleted this require-
ment from the judge’s recommended Order.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Allied Mechanical Services, Inc., Kalama-
zoo, Michigan, its officers, agents, successors, and as-
signs, shall

4 Member Hurtgen would include the “mediation” remedy he advo-
cated in Altorfer Machinery Co., 332 NLRB No. 12 (2000), and Bur-
rows Paper Corp., 332 NLRB No. 15 (2000). In his view, such a re-
medial provision would not offend Sec. 4 of the Act. Although that
section forbids the Board to “appoint” mediators and conciliators, it is
clear that, in context, the provision refers to people whom the Board
would hire and pay. By contrast, the Altorfer/Burrows remedial provi-
sion would require the Respondent to pay for the services. Accord-
ingly, Member Hurtgen does not believe that Congress intended Sec. 4
as a limitation on the Board’s broad remedial power under Sec. 10.
On a different matter, Member Hurtgen would add to par. 2(f) of the
Order. As it now reads, the Order permits the Union to choose between
retaining a given unilateral change or rejecting it. Member Hurtgen
would not confine the Union to that choice. He would add the option
of having the change apply to some employees (e.g., extant employees)
and having it not apply to others (new employees).
1. Cease and desist from
(a) Terminating employees because they engaged in a
lawful unfair labor practice strike.
(b) Failing and refusing to reinstate striking employees
who make valid unconditional offers to return to work.
(c) Unilaterally making changes in terms and condi-
tions of employment that are mandatory subjects of bar-
gaining after voluntarily recognizing Plumbers and Pipe
Fitters Local 337, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL–CIO as the exclusive
representative of the unit employees without notice to or
bargaining with the Union, including granting wage in-
creases, implementing new disability insurance benefits
and a new health insurance plan, and making changes in
its apprenticeship training program.
(d) Refusing to timely furnish the Union with informa-
tion requested and needed in the performance of its du-
ties as exclusive collective-bargaining representative.
(e) Bypassing the Union and dealing directly with em-
ployees with regard to a new health insurance plan by
meeting with employees and excluding union representa-
tives.
(f) Failing to bargain in good faith by engaging in
overall conduct during negotiations and away from the
bargaining table, including statements that it had no in-
tention of ever executing a contract with the Union, fail-
ure to provide the Union with requested information
needed in the performance of the Union’s duties as ex-
clusive collective-bargaining representative, unilateral
implementation of changes in terms and conditions of
employment, failure to bargain about such changes that
are mandatory subjects of bargaining, failure to respond
to the Union’s communications, failure to agree to dates
for bargaining, and refusal to meet with the Union during
the pendency of unfair labor practice charges.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Todd Hayes, Jeff Kiss, Mark Lemmer, Ron Parlin, Jeff
Warren, and Kirk Wood full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make all the employees referred to in paragraph
2(a) above whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them
in the manner set forth in the remedy section of the deci-
sion.
ALLIED MECHANICAL SERVICES 1603
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
the employees referred to in paragraph 2(a) above and
within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be
used against them in any way.
(d) Furnish the Union with copies of the information
requested, orally or in writing, on the following dates:
July 19, October 24, November 9 and 22, 1995; and
January 30, February 2, May 17 and 21, June 7, 11, and
17, August 2, October 10, and November 14, 1996. This
information includes unit employees’ annual evaluations
and any changes in working conditions and compensa-
tion since January 1, 1994; a copy of the old insurance
plan and a copy of all changes made to the old insurance
plan; a copy of its hazard communications policy and a
list of all hazardous chemicals that unit employees may
come in contact with; a copy of all recordable illnesses
and injuries for the last 5 years; a copy of information in
regard to COBRA coverage for Todd Hayes and Kirk
Wood; copies of any changes in its apprenticeship train-
ing program and employee evaluation program; names of
the employees enrolled at each site for the apprenticeship
training program; how it was decided that classes would
be separated; names of the employees not currently en-
rolled at either apprenticeship training program site and
their classifications; copy of attendance and training re-
quirements and procedures for each apprenticeship train-
ing program site; names, addresses, classifications, hire
dates, and pay rates for all bargaining unit employees for
the past 2 years; clarifications and explanation of its
temporary and/or high school employees in the work
force listing the names of such employees, their job de-
scriptions, duties, hours of work, pay rates and hire dates,
and layoff/hire procedures for such employees; and clari-
fication of its hire, layoff, and recall procedures for em-
ployees.
(e) On request, bargain with the Union as the exclusive
bargaining representative of the employees in the follow-
ing appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:

All full-time and regular part-time plumbers, plumber
apprentices, pipe fitters, pipe apprentices, welders,
plumbing and pipe fitting service employees and shop
employees employed by the Respondent at and out of
its facility located at 2211 Miller Road, Kalamazoo,
Michigan; but excluding office clerical employees, pro-
fessional employees, guards and supervisors as defined
in the Act and all other employees.

(f) On request of the Union, rescind all or part of the
unilateral changes in terms and conditions of employ-
ment of unit employees and retroactively restore preex-
isting terms and conditions of employment, until such
time as it negotiates with the Union in good faith to im-
passe or agreement.
(g) On request, hold meetings with employees Jon and
Joel Kinney and Tobin Rees, with union representatives
present if they so desire, to discuss their evaluations.
(h) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its Kalamazoo, Michigan office copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 19, 1995.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1604
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT terminate employees because they en-
gaged in a lawful unfair labor practice strike.
WE WILL NOT fail and refuse to reinstate striking
employees who make valid unconditional offers to return
to work.
WE WILL NOT unilaterally make changes in terms
and conditions of employment that are mandatory sub-
jects of bargaining after voluntarily recognizing Plumb-
ers and Pipe Fitters Local 337, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL–
CIO as the exclusive representative of the unit employees
without notice to or bargaining with the Union, including
granting wage increases, implementing new disability
insurance benefits and a new health insurance plan, and
making changes in our apprenticeship training program.
WE WILL NOT refuse to timely furnish the Union
with information requested and needed in the perform-
ance of its duties as the exclusive bargaining representa-
tive.
WE WILL NOT bypass the Union and deal directly
with employees with regard to a new health insurance
plan by meeting with employees and excluding union
representatives.
WE WILL NOT fail to bargain in good faith by engag-
ing in overall conduct during negotiations and away from
the bargaining table, including statements that we had no
intention of ever executing a contract with the Union,
failure to provide requested information needed in the
performance of the Union’s duties as exclusive collec-
tive-bargaining representative, unilateral implementation
of changes in terms and conditions of employment, fail-
ure to bargain about such changes that are mandatory
subjects of bargaining, failure to respond to the Union’s
communications, failure to agree to dates for bargaining,
and refusal to meet with the Union during the pendency
of unfair labor practice charges.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Todd Hayes, Jeff Kiss, Mark Lemmer, Ron
Parlin, Jeff Warren, and Kirk Wood full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
WE WILL make all the employees listed in the previ-
ous paragraphs whole for any loss of earnings and other
benefits resulting from their discharges, less any net in-
terim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of all the employees listed in the previous
paragraph, and WE WILL, within 3 days thereafter, no-
tify them in writing that this has been done and that the
discharges will not be used against them in any way.
WE WILL furnish the Union with copies of the infor-
mation requested, orally or in writing, on the following
dates: July 19, October 24, November 9 and 22, 1995;
and January 30, February 2, May 17 and 21, June 7, 11,
and 17, August 2, October 10, and November 14, 1996.
WE WILL, on request, bargain with the Union as the
exclusive bargaining representative of our employees in
the following appropriate unit on terms and conditions of
employment, and if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time plumbers, plumber
apprentices, pipefitters, pipe apprentices, welders,
plumbing and pipe fitting service employees and shop
employees employed by the Employer at and out of its
facility located at 2211 Miller Road, Kalamazoo,
Michigan; but excluding office clerical employees, pro-
fessional employees, guards and supervisors as defined
in the Act and all other employees.

WE WILL, on request of the Union, rescind all or part
of the unilateral changes in terms and conditions of em-
ployment of unit employees and retroactively restore
preexisting terms and conditions of employment, until
such time as we negotiate with the Union in good faith to
impasse or agreement.
WE WILL hold meetings with employees Jon and Joel
Kinney and Tobin Rees, with union representatives pre-
sent if they so desire, to discuss their evaluations.

ALLIED MECHANICAL SERVICES, INC.

A. Bradley Howell, Esq., for the General Counsel.
Gary A. Chamberlin, Craig H. Lubben, and Barry R. Smith,
Esqs., of Kalamazoo, Michigan, for the Respondent.
Tinamarie Pappas, Esq., of Ann Arbor, Michigan, for the
Charging Party.
ALLIED MECHANICAL SERVICES 1605
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Grand Rapids, Michigan, on February
11 through 14 and September 15 and 16, 1997. Subsequent to
an extension in the filing date briefs were filed by each party.
The proceeding is based on a charge filed January 9, 1996,1 by
Plumbers and Pipe Fitters Local 337, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL–CIO. The Re-
gional Director’s complaint dated March 14, 1996, as subse-
quently amended and consolidated with the embraced cases,
alleges that Respondent, Allied Mechanical Services, Inc., of
Kalamazoo, Michigan, violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act by refusing to reinstate strik-
ing employees who made unconditional offers to return to work
by precluding these employees from qualifying for vacation
benefits and by denying their request for accrued vacation
benefits; by telling these employees they would be considered
to have voluntarily quit and terminating their employment; by
refusing to bargain in good faith with the Union by advising it
that Respondent had no intention of ever executing a contract,
by unilaterally implementing a new insurance benefit for unit
employees, implementing a new health insurance plan and
granting wage increases to unit employees; by laying off or
reduce the hours of work of bargaining unit employees; by
changing its existing employee evaluation program and its ex-
isting apprenticeship training program without notice to the
Union; by dealing with employees without affording the Union
an opportunity to bargain with Respondent and by dealing di-
rectly with employees with regard to its new health insurance
plan without allowing representatives of the Union to the pre-
sent; by failing and refusing to furnish in a timely manner in-
formation requested by the Union and by refusing to meet and
bargain with the Union.
On a review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in the fabrication and
nonretail installation of heating, plumbing, and air conditioning
systems in the construction industry in the Kalamazoo area and
it annually purchases and receives goods and materials valued
in excess of $50,000 directly from points outside Michigan. It
admits that at all times material it has been an employer en-
gaged in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act. It also admits that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Pursuant to a settlement agreement in Case 7–CA–32727 the
Respondent since July 30, 1991, has recognized the Union as

1 All following dates will be in 1996 unless otherwise indicated.
the collective-bargaining representative of Respondent’s em-
ployees in the following unit:

All full-time and regular part-time plumbers, plumber appren-
tices, pipe fitters, pipe apprentices, welders, plumbing and
pipe fitting service employees and shop employees employed
by the Employer at and out of its facility located at 2211
Miller Road, Kalamazoo, Michigan; but excluding office
clerical employees, professional employees, guards and su-
pervisors as defined in the Act and all other employees.

While some collective-bargaining negotiations have occurred,
no contract has been agreed to.
During the last several years the Respondent has been the
subject of numerous charges filed by the Union and numerous
unfair labor practice complaints issued by the Regional Direc-
tor. Three of those charges were heard by me and resulted in
the decision set forth in Allied Mechanical Services, 320 NLRB
32 (1995). In those cases, Respondent was found by the Board
to have committed a series of unfair labor practices, including,
but not limited to, refusing to reinstate nine striking employees
following their unconditional offers to return to work. Al-
though the Respondent appealed that decision, it was upheld
and enforced by the court in Allied Mechanical Services v.
NLRB, 113 F.2d 623 (6th Cir. 1997), and thereafter, on July 9,
1997, the Respondent offered reinstatement to the discrimina-
tees.
Beginning in 1995 and continuing through 1996 (while the
Board’s decision was being appealed), union organizer David
Knapp conducted weekly meetings with several of the Respon-
dent’s employees, most of whom were union members who
received supplement pay from the Union to compensate for the
employers less than union scale wage rates and to act as union
organizers. Other employees who had chosen not to participate
in the Union’s so-called “salting” program also attended these
weekly meetings at their choosing. A primary purpose of the
weekly meetings was to allow Knapp to inform employees
about the status of pending unfair labor practice matters and to
obtain feedback from the employees regarding any other job-
related concerns. At some point in early 1996, the employees
and Knapp also began discussing the possibility of utilizing
strike activity to pressure Respondent to remedy its prior un-
lawful actions and to discourage it from engaging in further
unfair labor practices. The employees indicated support for the
general concept of utilizing a strike to exert economic pressure
on Respondent. On February 20, 1996, the Respondent filed
for review of the Board’s decision and on March 18 the Board
sought enforcement of the order. On May 28, Knapp notified
Respondent in writing, that employees Todd Hayes and Kirk
Wood would begin an unfair labor practice strike in protest of
the Respondent continuing unfair labor practices. Previously,
on March 14, a complaint was issued in the lead case here
which allege that the Respondent had bypassed the Union, had
unilaterally implemented a short term disability plan and made
changes in health insurance benefits for employees; had en-
gaged in direct dealing with employees over health insurance
benefits; and had refused to provide relevant and necessary
information to the Union. Also, on March 26, Respondent’s
attorney and lead negotiator (the Respondent’s owner and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1606
president, John Huizinga, specifically avoided any personal
involvement in negotiations), advised the Union that it was
“unable to agree to any of the dates you proposed for bargain-
ing” and suggested that because both the Union and Employer
had filed new charges that neither side would “be able to con-
duct any open discussion” until after the Regional Director
made a decision on the changes.
On May 29, the Respondent demanded in writing, that the
Union supply it with, among other things, the “specific acts”
claimed to constitute the basis for the strike by Hayes and
Wood. It claimed a lack of awareness of any such basis, and
further stated that unless it received an immediate reply to its
questions it would consider the employees to have “quit” unless
the strikers returned to work “immediately.” The very same
day, Knapp sent, by facsimile transmission, a response which
stated the Union’s reasons as:

Allied Mechanical Services continuance to refuse to
bargain in good faith and the other unfair labor practices
set forth in the most recent National Labor Relations
Board complaint are the reason for the unfair labor prac-
tice strike.
Upon cessation of your continuance to refuse to bar-
gain in good faith and to satisfy all remedies in the out-
standing unfair labor practices the workers would be pre-
pared to end their unfair labor practice strike.

On June 12, employees Ron Parlin and Jeff Warren joined
Hayes and Wood on strike because of Respondent’s continuing
unfair labor practices, and, through the Union, advised Respon-
dent of the commencement of their strike activity. Again, Re-
spondent demanded further explanation of the reasons for the
strike, the Union immediately provided it, and the Respondent
deemed the employees to have quit their employment. That
same day, without providing any opportunity for the strikers to
immediately return, the Respondent also notified its insurance
carrier that Parlin and Warren had quit their employment.
On June 26, the Regional Director issued an amended con-
solidated complaint in Cases 7–CA–38022, 7–CA–38204, and
7–CA–38440, in which he added an allegation that Respondent
had refused to meet and bargain with the Union since March
26, the date of Respondent’s letter refusing to schedule dates
for negotiations. On July 1, employees Jeff Kiss and Mark
Lemmer joined the other strikers. The same written communi-
cations from Respondent followed the Union’s strike notice
however, Respondent added that it did not consider the em-
ployees’ articulated reasons for striking “adequate to meet the
standards for legitimate protected concerted activity or the re-
quirements for an unfair labor practice strike as defined by the
law.”
On September 16, the Union made an unconditional offer to
return to work on behalf of the six strikers. The Respondent
otherwise developed the record to show that neither the Union’s
offer nor the testimony of any strike identified any change that
had occurred in terms or conditions of employment or the Re-
spondent’s bargaining position or in negotiation concessions
that triggered or caused the offer to return. The Respondent did
not reinstate the six employees. Thereafter on December 23,
employees Jon Kinney and Tobin Rees also went on strike and
were joined by Joel Kinney shortly after he was recalled from a
lay off.
In September 1996, brothers Joel and Jon Kinney, who were
both apprentice pipefitters, had been laid off when work slowed
down on the jobsite they had been working on. Joel was laid
off for a month, and Jon was laid off for 3 months. They had
worked for the Respondent since 1993, and this was the first
time that either of them had been laid off. In the past when
work slowed down, the Respondent had found other work for
them to do or notified the Union about layoffs or given the
Union an opportunity to bargain about the layoffs. Similarly,
the hours of Tobin Rees, also another apprentice pipefitter,
were reduced by 1 day a week in September 1996 for several
weeks. The Respondent did not notify the Union or give it the
opportunity to bargain about either of these actions.
The General Counsel presented evidence showing that be-
ginning in July 1995, and continuing through the fall of 1996,
the Union submitted a series of information requests to the
Respondent. Although the requests generally were ignored, in
a few instances the Respondent provided information but did
not do so until long after it had been requested. During the
same period, the Respondent made unilateral changes in work-
ing conditions by implementing a disability insurance coverage
plan and by implementing substantial changes in its health in-
surance coverage without giving the Union notice or an oppor-
tunity to bargain. The record also was developed to show that
the Union and the Respondent had three bargaining sessions
during the fall of 1995, that the Respondent did not provide the
Union with necessary and relevant bargaining information, and
that the Respondent made the unilateral changes discussed
above even though they still were engaged in negotiations. The
Union thereafter filed new or amended charges on January 9,
February 26, and March 6, 1996, and, on March 19, the Union
exchanged correspondence concerning further negotiation. As
noted above on March 26, Respondent’s counsel replied that he
was unable to agree to any dates and asserted an unwillingness
to conduct discussions while the new charges were pending.
On March 29, the Union sent another letter to Respondent’s
counsel and advised him that the suggested dates of April 9 and
10 and May 2, were still available and requested that he reply
by April 1 so the appropriate arrangements could be made.
Respondent’s counsel did not respond. In an April 3 letter,
Union Business Manager Bob Williams responded to Respon-
dent’s counsel’s letter of March 26 and asserted that the pend-
ing unfair labor practice charges provided no impediment to
having “fruitful, productive negotiations.” Further, he objected
to counsel’s demand that they bargain by mail and insisted that
they meet at the bargaining table and engage in face-to-face
negotiations. He added, “If you would provide us with the
economic information that we have requested, as the Board has
recently found you [are] legally obligated to do, it would
greatly assist us in formulating our economic proposals.” He
requested additional bargaining dates, and requested that coun-
sel contact him in the near future. The Respondent neither
responded to this letter, nor did it come to the bargaining table
as requested.
Additional pertinent testimony and my factual findings based
on the credible evidence will be set forth in more detail in the
ALLIED MECHANICAL SERVICES 1607
following specific discussion of the several allegations and
issues involved.
III. DISCUSSION
These proceedings arose during a period of unfruitful collec-
tive-bargaining attempts between the Respondent and the Un-
ion after the Union had been the certified as bargaining repre-
sentative for the Respondent’s plumber/pipefitter employees in
July 1991. Conflicts occurred in 1992 and 1993, which re-
sulted in complaints and the proceeding I heard in 1994. The
Respondent resisted compliance with a remedial order of the
Board issued in December 1995, until that decision was en-
forced by a court of appeals in July 1997. The Respondent, as
found below, also delayed and resisted bargaining with the
Union and followed its own, selective interpretation of labor
law in various actions which include failing to timely provide
information request by the Union and implementing unilateral
changes in working conditions and terms of employment. Not
surprisingly, the Union did not relinquish its role as bargaining
representative but availed itself of its fundamental rights under
Section 7 of the Act and chose to engage in strike activities.
The Respondent resisted making any response through the bar-
gaining process and proceeded to announce that it considered
that the striking employees had “quit.” It thereafter refused to
reinstate striking employees who thereafter made an uncondi-
tional offer to return to work.
A. The Strike
The Respondent contends that the walkouts by the six
“strikers” do not rise to the level of protected concerted activity
under the Act citing NLRB v. Leslie Metal Arts Co., 509 F.2d
811, 813 (6th Cir. 1975), and Vemco, Inc. v. NLRB, 79 F.3d
526, 530 (6th Cir. 1996), in which the Sixth Circuit Court of
Appeals applied a four-part test which set forth the central ele-
ments of protected concerted activity under Section 7:

(1) There must be a work-related complaint or grievance;
(2) the concerted activities must further some group interest;
(3) a specific remedy must be sought through such activity;
and (4) the activity should not be unlawful or otherwise im-
proper.

The Respondent also makes much of the facts that some in-
dividual strikers could not identity a particular event that trig-
gered the timing of their individual participation in the strike
and that when the strikers offered to return to work, there had
been no change in the Employer’s position on any issue at stake
in negotiations. It further contends that the Union’s notice
failed to explain why the employees had gone on “strike,” why
they had decided to end their “strike,” what goals the “strike”
had achieved or what had prompted their return.
The Respondent also contends that the strikers engaged in
unprotected “mini-strikes,” that the strikers were “salts” who,
as paid union organizers had a conflict of interest that pre-
cluded their free choice in their decision to strike that they en-
gaged in economic collision on behalf of the Union and that the
strike was not a bona fide unfair labor practice strike.
The Respondent repeatedly characterized the striking em-
ployees as “salts” and in its brief quotes a definition of “salt-
ing” as the practice of having “union members or organizers
take jobs with open shop contractors to organize workers or to
harass or disrupt contractor operations” citing NLRB v. Fluor
Daniel, Inc., 102 F.2d 818 (6th Cir. 1996), which in turn quotes
Herbert R. Northrup, “Salting” The Contractor’s Labor Force:
Construction Unions Organizing With NLRB Assistance,” 14
H, Kav. Res. 469, 471 (1993). As recognized in the prior Allied
Mechanical case, supra, the Union’s “salts” are employees
entitled to protection under the Act. See also the decision of
the Supreme Court on this issue in NLRB v. Town & Country
Electric, 516 U.S. 85 (1995).
The issue of “salting,” as in the Fluor Daniel case, usually
has arisen in so-called “refusal-to-hire” cases. In the instant
case, however, we have a situation where the Employer is not a
clear open shop contractor inasmuch as the Union is, and had
been since 1991, the certified bargaining representative of the
Respondent’s plumbing and pipefitter employees and the al-
leged discriminatees are not job applicants but workers who
have been regularly employed by the Employer, generally for a
number of years.
The court of appeals, in its May 1997 decision in Allied Me-
chanical, supra, addresses some of the same basis issues pre-
sented in the Respondent’s argument noted above, however, it
specifically found that it lacked jurisdiction to consider the
issues of “the strikers’ Intermittent Work Stoppages” and “The
Union’s Role in Coercing the Strike.” Thus, in its development
of this record, the Respondent pursued an attempt to impugn
the Union’s and the employees’ motivation and role concerning
the strike and, on brief, it argues that employees Hayes and
Kiss admitted they were not on an unfair labor practice strike.
It also contends that the walkouts were unprotected because the
employees did not exercise free choice in the decision to strike
as they were under the direction and control of the union.
The Respondent points out that when Owner Huizinga per-
sonally asked Hayes and Kiss why they had gone on strike and
what it would take to return to work, their only response was
directed at the desire to receive a higher, union wage rate. Un-
der the circumstance here, however, this response does not act
to reduce the status of the strike to being solely an economic
strike, as urged by the Respondent. First, it is noted that the
subject of wages was part of the contractual bargaining ongoing
between the Union and the Respondent (and not a proper sub-
ject for direct dealing between the owner and individual em-
ployees). Second, the Union’s explanatory letters to Huizinga
(as further discussed below), specifically referred to a “continu-
ance to refuse to bargain in good faith” as well as the unfair
labor practices alleged in pending complaints.
Here, the Union, as the bargaining agent for the employees is
the initial and proper party for communications affected the
rights of the employees. The Union communicated a valid
unfair labor practice related reason for the strike to the Em-
ployer and the individual’s concerns with wages clearly relate
to the ongoing but clearly frustrated contract negotiators. Oth-
erwise, it is clear that regardless of the existence of some indi-
vidual economic motivation, a strike caused even in part by an
employer’s unfair labor practices is an unfair labor practice
strike, see the courts earlier decision in Allied Mechanical,
supra at 626 and 627, which also specifically notes that the
employees’ strikes in 1992 and 1993 (found to be valid strikes),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1608
were related to (among other reasons), this same Respondent’s
failure to negotiate a contract with the Union.
Turning to the Union “control” issue, it is apparent that the
Union, as the collective-bargaining representative of the plumb-
ing and pipefitter employees, has the status, the right and the
obligation to pursue strategies and actions that it perceives to be
in the interest of those it represents. The fact that some em-
ployees were members of the Union also chose to accept some
minimal compensation (in the nature of supplement to their
regular hourly wage from the Employer that would tend to
equate with the nominal union wage level), for the apparent risk
they took in maintaining their active support for the union does
not create some adversarial conflict of interest situation as
claimed by the Respondent. Here, the Respondent otherwise
offers mere speculation (such as implications that the Union
was somehow acting as an agent of or in conspiracy with other
contractors who have collective-bargaining agreements with the
Union or conjectures that the Union was seeking to drive the
company out of business), that fails to present any type of con-
flict of interest outlawed by the Act, see the discussion in Mon-
tank Bus Co., 324 NLRB 1128, 1137–1138 (1997).
The law otherwise permits a union to make nonmalicious,
noncoercive efforts to put pressure on a company to accede to a
union’s bargaining demands or to protest unfair labor practices,
see Burns Security Services, 324 NLRB 485 (1997), and here
the Respondent shows no extraordinary circumstance that
would act to disqualify the Union from its role as bargaining
representation or act to rationalize the Respondent’s apparent
position that it is free to avoid good faith bargaining and adher-
ence to the labor laws because of its apprehensions, suspicions
and speculation about the motives of the Union. The Union has
the right to attempt to maintain or enhance its employee mem-
bership status during the period after recognition or certifica-
tion, a period when collective bargaining should be occurring.
Accordingly, the strikers nominal position as supplemental
payment “salts” does not affect their status as statutory employ-
ees and it does not deprive them or the union section under the
Act, compare M. J. Mechanical Services, 324 NLRB 812
(1997).
Here, the Union and its members were engaged in a strike
that was related to alleged unfair labor practices (specific labor
practice charges had been filed and served on the Respondent
on January 9, February 26, March 12, and April 30, and an
amended consolidated complaint issued on May 22), as well as
to the failure of the employer to negotiate a contract. These
reasons were communicated to the respondent in a generalized
format that reasonably conveys the Union’s reasons and pur-
pose and I find that the Union’s actions are adequate to satisfy
any Union obligation in this regard. Otherwise, an employer is
not free to demand additional explanations nor is it free to take
the completely obtuse position that it doesn’t know what the
strike is all about or what can be done about it and thereby ex-
cuse itself from the legal obligations which flow from its sub-
sequent actions which affect the employee who engage in a
strike, see Eaton Warehouse Co., 297 NLRB 958, 961 (1990),
enf. 919 F.2d 141 (6th Cir. 1990).
Here, the individual strikers were long-term employees of
the Respondent who had a free choice to continue to work at
their regular rate of pay or to participate in the Union’s strike
strategy. The actual timing of the first strike and the supple-
ment enlargements of the strike were discussed at union meet-
ings. It is not material that the precise date may have been
picked by the union representative, as it was freely endorsed
and agreed to by those who joined the strike (although some
questions were asked by Respondent’s counsel relating to union
procedural strike authorization requirements, that direct issues
is an internal union matter and is not pertinent to any finding in
this proceeding). The fact that the employees may have collec-
tively depended on the Union’s experience and advice before
choosing to join the strike hardly approaches any level of
domination and control or conflict of interest that could be
considered to invalidate their status as striking employees enti-
tled to the protections recognized by the Act and the Board’s
decisions.
The strike in these proceedings began some 3 years after the
strike involved in the prior Allied Mechanical case, supra, and
it involved different employees. The mere fact that employees
had engaged in a prior strike does not make additional strikes
unprotected. See United States Service Industries, 315 NLRB
285 (1994). I also find that the strike in the instant case is in
the nature of a single strike that began on May 28 with two
employees and was expanded when the first two employees
were joined by two more strikers on June 12 and two more on
July 1, and that it is not a situation which portrays a series a
unprotected ministrikes. The Respondent’s speculation in this
regard does not provide persuasive evidence that the Union
engaged in hit and run strikes as part of a planned strategy in-
tended to harass the Company into a state of confusion, see
Pacific Telephone & Telegraph Co., 107 NLRB 1547 (1954).
Here, the Union and individual strikers express valid, protected
reason for the strike activity in 1996. The fact that the Respon-
dent may have been annoyed by the Union’s initial strike by
two employees (a number of strikers that hardly would seem
designed to have a significant adverse affect on the Company),
does not rise to the level of an unprotected work stoppage, es-
pecially when this seemingly minor event is met by the Em-
ployer with a provocative response in which it threatens to fire
the striker unless they immediately return to work, an action
that I otherwise find to be a violation of Section 8(a)(1) of the
Act. The strikers were not obligated to accede to the Respon-
dent’s threat and it is not surprising that the Union met the Re-
spondent’s challenge by thereafter increasing the number of
strikers participating in the work stoppage.
Here, the Union and the strikers engaged in a permissible
form of resistance to the Employer’s perceived commission of
unfair labor practices and failure to bargain by striking in a
calculated attempt to initiate some reconsideration by the Em-
ployer of its apparent and continued failure to truly recognize
that the certified Union is the collective-bargaining representa-
tive of its unit employees.
As pointed out by the General Counsel the fact these em-
ployees went out on strike without presenting the Employer
with more specific demand does not render the strike unpro-
tected. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).
Moreover, there is no requirement that a union or individual
strikers cannot choose to end the strike unless they successfully
ALLIED MECHANICAL SERVICES 1609
achieve some resolution of a particular demand or desired
change in the respondent conduct. The decision to strike or to
join in a strike as well as the decision to end a strike and make
an unconditional offer to return to work can be made for a good
or wise reason or for a bad reason or unwise judgment. As long
as no clearly illegal reasons are involved, motive and success
are irrelevant. Accordingly, the apparent lack of success at the
point of time when an unconditional offer to return to work was
made does not preclude the Union from pursuing another strat-
egy and it does not imply anything that would render the strike
itself, unprotected.
Here, I find that the activities in which the Union and the
striking employees were engaged constituted protected activity,
and that nothing in the record would persuasively support the
claims by the Respondent to the contrary. I also find that the
strike was called to protect unfair labor practices and that the
strike was an unfair labor practice strike from its inception with
the strikers thereby holding status as unfair labor practice strik-
ers.
Under these circumstances, the Respondent was not at liberty
to threaten to terminate or to terminate any of its striking em-
ployees because they failed to “immediately” return to work in
response to the owner’s letters. As unfair labor practice strik-
ers, they could not lawfully be discharged, or threatened with
discharge or other disciplinary action, other than for miscon-
duct causing them to lose the protection of the Act. The six
strikers also were entitled to reinstatement on making an un-
conditional offer to return to work and their reinstatement rights
were paramount over any replacements hired for them during
the strike, see Chesapeake Plywood, 294 NLRB 201, 202
(1989).
B. Refusal to Reinstate and Termination of Strikers
Here, as in the prior Allied Mechanical case, supra, the Re-
spondent’s termination and refusal of reinstatement is based in
large part on its unjustified assertion that the strikers were paid
professional organizer and “salts.” Although it by now should
be well aware of the Supreme Courts Town & Country ruling,
supra, the Respondent engages in repeated disparagement of the
strikers as unloyal “salts” under the domination of the Union
and I find that this specifically demonstrates that its refusal to
reinstate the strikers was motivated by antiunion animus. I find
a further display of animus in the Respondent’s letters to the
Union when each group of employees joined the strike which
threatened that unless they returned to work immediately they
would be considered to have quit their employment. The Re-
spondent at the same time notified the company managing its
insurance coverage that these employees had quit their em-
ployment and it thereby executed its threat of termination, an
action I otherwise find to be in violation of Section 8(a)(1) and
(3) of the Act. Other clear indications of animus are shown by
the owner’s personal involvement in baring union representa-
tives from attending a meeting about changes in benefits, as
discussed below, and accordingly, I find that the General Coun-
sel has met his initial burden by presenting evidence, sufficient
to support a strong inference that the employees’ union and
concerted activities were a motivating factor in Respondent’s
decision to terminate and to deny them reinstatement. Accord-
ingly, the testimony will be discussed and the record evaluated
in keeping with the criteria set forth in Wright Line, 251 NLRB
1083 (1980), see NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
Under both the Wright Line and Laidlaw test the burden of
proving justification for a failure to recall is on the employer.
Here, it is clear that the Respondent has failed to meet that bur-
den.
Here, the Respondent essentially relies on its attack on the
validity of the strike and it does not assert any substantial busi-
ness justification for its refusal to reinstate the striking employ-
ees or contend that their respective unconditional offers to re-
turn are defective. Clearly, an employer who refuses to rein-
state striking employees on their unconditional offer to return to
work, violates Section 8(a)(3) and (1) of the Act, where “le-
gitimate and substantial business justification” are not shown,
NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379 (1967). It
also is clear that the Respondent has not shown that the six
strikers would have been terminated for not immediately re-
turning to work even in the absence of their protected, con-
certed strike activity and, under the circumstances, I find that
the Respondent is shown to have violated Section 8(a)(1) and
(3) of the Act in regard to both the refusal to recall, the threat to
terminate, and the termination of the strikers, as alleged.
C. The Respondent’s Unilateral Actions
On September 1, 1995, Respondent implemented a new
short-term disability plan for its employees. It notified the
employees of this change but admittedly never bothered to
notify the Union or give it an opportunity to bargain. The Re-
spondent contends that the change was beneficial to the em-
ployees, however, whether the change was good, bad, or indif-
ferent does not affect Respondent’s duty to bargain before im-
plementing the change, see Randolph Children’s Home, 309
NLRB 341, 343 fn. 3 (1992). I find that the disability insurance
plan was a mandatory subject of bargaining, and by implement-
ing it unilaterally without giving the Union notice or opportu-
nity to bargain, the Respondent violated Section 8(a)(1) and (5)
of the Act, as alleged, see also Enertech Electrical Inc., 309
NLRB 897, 898 (1992).
At a bargaining session held on November 22, 1995, Re-
spondent’s counsel advised the Union that it planned to imple-
ment changes to its health insurance plans effective January 1,
1996. Knapp, the Union’s chief negotiator, requested copies of
the proposed changes to the insurance plan, and requested that
the Respondent bargain about them before implementing the
changes. The information was not provided to the Union. The
Respondent decided to adopt the proposed changes without
negotiating about them and instead dealt directly with the bar-
gaining unit employees, when on December 5, 1995, Owner
Huizinga issued a memo to employees advising them that a
meeting would be held on December 12 to discuss the proposed
changes in the health insurance plan. On learning of the memo,
union organizer Knapp faxed a letter on December 12 demand-
ing that the Respondent negotiate the proposed benefit changes
with the Union, and he renewed the Union’s previous requests
for a copy of the proposed changes and for the employees’
annual evaluations. The letter also stated, “As a result of this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1610
failure to communicate and negotiate these matters, we feel that
we must attend the scheduled meeting.” The Respondent did
not provide the requested information or agree to meet and
negotiate the changes prior to their implementation. Moreover,
Huizinga immediately faxed a response which indicated that
Knapp did not have a right to attend and was not invited to the
meeting that afternoon and that the meeting was to be only for
employees.
Knapp and Local 335 Business Manager Richard Franz (a
member of Local 337’s bargaining team) went to the hotel
where the employee benefit meeting was to be held. They were
stopped at the door of the meeting room by Huizinga and asked
what they were doing there. They said that they were attending
the meeting as bargaining representatives of the employees and
Huizinga replied that they were not welcome and that he had
made arrangements to have them taken out if any trouble
started. Franz told him that if changes were going to be made
in the health and welfare benefits, they could not be made
without first bargaining those changes with the Union. Huiz-
inga responded that they were not on his payroll and he did not
want to hear any of their “shit,” and told them that he would
have them removed. The union representatives reminded him
that the proposed changes were issues for bargaining, and that
they were entitled to be there to hear the proposed changes.
Huizinga then sent someone to the front desk, a hotel represen-
tative came and asked the union representatives to leave and
they agreed that they would. Franz gave credible testimony
that Huizinga, who was in view of his employees who were
waiting for the meeting to start, pushed Franz out of the way
and closed the door. Huizinga did not offer to give these union
representatives copies of the enrollment forms or other
information concerning the proposed changes, however,
employees were given summary plan descriptions about the
proposed changes and insurance company representatives were
there to answer their questions about the new plan. The
changes in the health and welfare plan included a charge from
an HMO to a plan where employees selected individual
doctors, coverage levels were also changed. The employees
were offered a new medical savings plan and I find that
changes to the insurance plan were a mandatory subject of
bargaining. I conclude that by bypassing the Union and dealing
directly with the unit employees with respect to these changes,
and by failing to give the Union notice and opportunity to
bargain, the Respondent has violated Section 8(a)(1) and (5) of
the Act, as alleged. See Coastal Derby Refinery Co., 312
NLRB 495, 497 (1993).

On July 26, Owner Huizinga met with bargaining unit em-
ployees and conducted employee evaluations. After reviewing
the employee’s work performance in a number of areas—work
habits, punctuality, appearance, trade knowledge, and atti-
tude—he rated them from 1 to 5 in these areas, and gave them
an average overall rating. He also decided on whether or not to
give an employee a merit raise. Whether an employee received
a merit raise and the amount of the merit raise was at his own
discretion and was not dependent on employee’s average rating
or based on a schedule of raises or wage increases for which an
employee is eligible and higher rated employees could get
lower raises than less well rated employees. Huizinga also
testified that in some cases he makes discretionary cost-of-
living wage adjustments but that there is no formal cost-of-
living wage increase procedure or schedule and there are no
regularly scheduled cost-of-living adjustments. After an em-
ployee received an evaluation with his raise, he was allowed to
request to meet individually with Huizinga and to negotiate
directly with him for a higher raise.
The Respondent gave these raises without giving the Union
notice and opportunity to bargain and on August 2, union or-
ganizer Knapp sent Huizinga a letter in which he reminded him
that he had failed to provide the Union with necessary informa-
tion, and that he had unilaterally altered compensation and
benefits and specifically wrote:

We have been acquainted with a few of the increases, all of
which have never been communicated to this local union, if
spite of our frequent requests and our corresponding asser-
tions that we need the wage and evaluation data in order that
we may calculate and present a realistic economic proposal
for your consideration. The wage increases with which we
have third party familiarity are woefully inadequate.

Knapp also requested copies of the evaluations and changes
that had been made to the compensation packages but the Re-
spondent failed to respond to this request.
The Respondent asserts that because it used the same system
to evaluate employees and consider employees for merit raises
in 1995, it was an established condition of employment that did
not change. In Oneita Knitting Mills, 205 NLRB 500 fn. 1
(1973), the Board stated that:

An employer with a past history of a merit increase program
neither may discontinue that program. . . nor may be any
longer continue to unilaterally exercise his discretion with re-
spect to such increases, once an exclusive bargaining agent is
selected. . . . What is required is a maintenance of the preexist-
ing practices, i.e., the general outline of the program, however
the implementation of the program (to the extent that that dis-
cretion has been exercised in determining the amounts or the
timing of the increases), becomes a matter as to which the
bargaining agent is entitled to be consulted. [Citations omit-
ted.]

Here, the Respondent had a duty to bargain about the amount
of the raises that employees were to receive or were eligible to
receive. See, Bituminous Roadways of Colorado, 314 NLRB
1010, 1012–1014 (1994); and by implementing these discre-
tionary increases without giving the Union notice and opportu-
nity to bargain, the Respondent violated Section 8(a)(1) and (5)
of the Act, as alleged. Also, the information which the Union
requested in its August 2 letter was preemptively relevant and
by failing to provide it the Respondent committed a separate
violation of Section 8(a)(1) and (5) of the Act, see the informa-
tion discussion below.
Striking employees Hayes, Kiss, Lemmer, Parlin, Warren,
and Wood were not given evaluations during the summer of
1996, along with the other employees, because Respondent
contended that they had quit their employment by going on
strike. By letter dated October 3, the Union demanded that they
be furnished copies of their evaluations and also be allowed to
review the evaluations of Joel and Jon Kinney and Tobin Rees.
ALLIED MECHANICAL SERVICES 1611
Respondent did not respond to the letter but argues that since
1993 it has consistently followed a procedure whereby it al-
lowed a “brief period” for employees to request a personal
meeting with the owner, that evaluation related meetings are
not allowed thereafter and that the latter three employees
sought meetings several weeks after the review period expired.
The Respondent also states that the other employees were not
evaluated simply because they were not working at the time the
evaluations were conducted.
Under these circumstances, I am not persuaded that the re-
cord is sufficient to show any independent violation of the Act
in regard to the failure to conduct evaluations and, accordingly,
I find that the allegation is unproven and that this portion of the
complaint should be dismissed. The related failure to provide
information allegation, however, is valid and will be discussed
in the following section of this decision.
In September, 1996, Joel and Jon Kinney, who were both
apprentice pipefitters, were laid off when work slowed down on
the jobsite they had been working on. Joel was laid off for a
month, and Jon was laid off for about 3 months. They had
worked for the Company since 1993, and this was the first time
that either of them had been laid off. In the past when work
slowed down, the Respondent had found other work for them to
do. The Employer did not notify the Union about their layoffs
or give the Union an opportunity to bargain about the layoffs.
The hours of Tobin Rees, also an apprentice pipefitter, were
reduced by a day a week in September 1996 for several weeks
and the Respondent did not notify the Union or give it the op-
portunity to bargain about this reduction of hours. The Re-
spondent argues that these brief layoff periods did not involve
permanent schedule changes and were simply a short-term
response to slow business conditions inasmuch as the projects
to which the Kinneys were assigned were nearing completion
and there assertedly were no other projects to which they could
be reassigned. I find that they and other employees were tem-
porarily laid off pursuant to company policy.
The Respondent shows that it has laid off similarly situated
employees on various other occasions during periods of slow
work and that the Company’s layoff policy is an existing term
and condition of employment because it was in effect before
the Union was certified and recognized. I find that it persua-
sively argues that such day-to-day decisions which are consis-
tent with an existing term of employment derived from past
practice or its employee handbook are not subject to a bargain-
ing obligation. See Queen of the Valley Hospital, 316 NLRB
72 (1995).
The record otherwise shows that the Respondent recalled Jon
Kinney from layoff in December 1996, while Joel Kinney was
recalled briefly in October and again “a month or more” later
and there is no showing that they were discriminatorily selected
for layoff because of antiunion animus. The Respondent also
shows that Rees was sent home for a total of 3 days over a 3-
week period due to bad weather and construction delays. Rees
testified that he was unable to work because his crew was held
up while waiting for other contractors to finish certain tasks and
that no one on Rees’ crew at that jobsite worked on these few
days. Under these circumstances, I find that the General Coun-
sel has failed to show that the Respondent’s actions were in-
consistent with established practices and its handbook policy or
otherwise were violative of the Act and, accordingly, the alle-
gations relative to these matters will be dismissed.
At the beginning of September 1996, Respondent changed its
apprenticeship classes from Kellogg Community College,
where employees were allowed to attend classes at their own
pace, to a classroom at its places of business. It admittedly did
not give the Union notice and opportunity to bargain. It issued
employees a memorandum which described the new appren-
ticeship program, and advised employees that the program
would not be the same as Kellogg Community College. Unlike
the Kellogg Community College program which allowed stu-
dents to attend the apprenticeship classes on days and times of
their own choosing, the new program was structured as a regu-
lar class held the same day each week. The memorandum also
provided, “There will be strict rules on missing classes,” and
the Respondent issued a new attendance policy with the memo-
randum. Attendance at the Kellogg program had not been
strictly enforced. For example, Joel Kinney, testified that he
had missed class once a month the previous year and he had not
been removed from the program. Under the new program,
employees were told that if they missed three classes they
would be dismissed. Huizinga admitted that participation in its
apprenticeship program was a condition of employment and,
under the circumstances, I find that the implementation of the
new apprenticeship program, along with the new attendance
rules for that program, was a mandatory subject of bargaining.
The Respondent’s respected claim that the changes made to the
apprenticeship program were beneficial to employees is no
defense, see Randolph Children’s Home, supra, and I further
conclude that by implementing this change without giving the
Union notice and opportunity to bargain, the Respondent vio-
lated Section 8(a)(1) and (5) of the Act as alleged, see E.G. &
G. Rocky Flats, 314 NLRB 489, 493–499 (1994).
D. Refusal to Provide Information
In July 1995, Respondent conducted annual reviews of the
bargaining unit employees. Under this review process, em-
ployees were given merit raises. Upon learning of these re-
views the Union, by letter dated July 19, 1995, requested that
the Respondent provide it with copies of the completed reviews
within 10 days of the receipt of the letter. Negotiations were
ongoing at this time, however, the Respondent did not respond.
The Union again requested the employee evaluations at a nego-
tiating session held on October 24 and November 9 and 22,
1995, but the Respondent did not respond to these requests.
It is the employer’s burden to establish that the information
the union is seeking is confidential. Detroit Newspaper
Agency, 317 NLRB 1071, 1072 (1995), and, if an employer had
confidentiality concerns about the information it was being
asked to provide the Union, it can not simply not provide it, but
is obligated to timely raise its confidentiality concerns and at-
tempt to negotiate an accommodation with the Union. This was
not done. Also the fact that they had once provided wage in-
formation did not relieve it of the obligation to provide it in the
future (this information was not clearly duplicative, because
employees received discretionary wage changes). The Respon-
dent also raises the implication that the Union was disclosing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1612
wage information to the Respondent’s union shop competitors
and speculates that it was an attempt to give them a bidding
advantage over the Respondent, however, the fact that competi-
tors by one means or another may have been able to estimate
the Respondent’s labor cost and to consider this in preparing
their own contract bids fails to independently demonstrate that
the Union was responsible or should lose its rights to the infor-
mation or that it would violate any requested confidentiality
agreement.
Here, I find that employee evaluations which might indicate
the raises that employees were to receive are wage data and are
presumptively relevant and by not providing this information,
as well as subsequently not providing similar information re-
quest in connection with the 1996 evaluations and related wage
data (noted in connection with the discussion of unilateral
changes), the Respondent violated its duty to bargain under
Section 8(a)(1) and (5) of the Act. See Capitol Steel & Iron
Co., 317 NLRB 809, 812–814 (1995).
Jeff Kiss was exposed to toxic fumes when cutting into a
pipe line on the Respondent’s jobsite. By letter dated January
30, 1996, organizer Knapp requested a copy of Kiss’ December
1995 accident report, and a copy of the material data safety
sheets of the chemicals involved in the accident. The Union
needed this information to represent Kiss as a bargaining unit
employee and to represent other employees who may be ex-
posed to similar chemical spills in the course of their job.
Health and safety of employees are terms and conditions of
employment about which an employer is obligated to bargain.
American National Can Co., 293 NLRB 901, 904 (1989), and
such safety information is relevant to the Union’s duty as col-
lective-bargaining agent of these employees. The Respondent
did not provide the accident report or the material data safety
sheet until at least April 15, 1996.2 This information was ap-
parently readily obtainable, however the Respondent contends
that it did not provide the information to the Union in a more
timely manner because it did not receive written authorization
from the affected employee to disclose the information to the
Union until sometime around the beginning of April. As noted,
the burden is on the Respondent to establish the need for confi-
dentiality of this information or to promptly request to negotiate
with the Union with respect to its confidentiality concerns.
By letter dated February 2, 1996, Knapp requested a copy of
an accident report for Todd Hayes, who was involved in a job-
site accident where he slipped and twisted his knee, Respondent
did not provide a copy of this report until April 15. In the same
vein, in a letter dated May 17, the Union requested that the
Respondent provide it with a copy of its “hazard communica-
tion” program and a list of hazardous chemicals that employees
may be exposed to while working on jobsites for the Respon-
dent. By letter dated May 20, Knapp requested the Respondent
emergency action plan, and by letter dated May 21, he re-
quested a copy of the service log and a list of all the Respon-
dent’s recorded injuries and illnesses for the past 5 years. On

2 The Region dismissed the portion of the charge in Case 7–CA–
38204 concerning the refusal to provide the accident report and the
material data safety sheet, but did not dismiss the allegations concern-
ing Respondent’s excessive delay.
October 10, Knapp sent Huizinga a letter requesting informa-
tion about the new apprenticeship program, including the
names of the employees currently enrolled, and at what loca-
tions, as well as copies of the apprenticeship and training re-
quirements of the apprenticeship classes. The Respondent did
not respond to these requests and, I find that its failure in this
regard are a violation of Section 8(a)(1) and (5) of the Act, as
alleged. See JRED Enterprises, 313 NLRB 1244 (1994).
By letter dated November 14, 1996, Knapp made another in-
formation request for the names, addresses, classifications,
hired date, and pay rates for all bargaining unit employees and
the hire, layoff, and recall procedures for these employees. He
also requested the hire dates of temporary high school employ-
ees, along with their names, duties, job descriptions, work
hours, layoff/hire procedures, hire dates and names, and ad-
dresses. Respondent did not provide any of this information
except that sometime in or about December 1996, it provided
wage rate data but did not indicate which employees received
what wage rates.
Here, I find that the information described above was clearly
relevant to the Union’s duty to represent bargaining unit mem-
bers, including concern for safety on the job and what precau-
tions the Union would want the Respondent to take to protect
its employees. The Respondent did not respond directly to
requests. The Union did file a complaint with the appropriate
agency in the State of Michigan that required safety informa-
tion to be kept, but the Union did not receive any of the infor-
mation until it received it from the State agency in late summer
1996. The fact that a union may have an alternative means of
obtaining the information does not absolve an employer of its
duty to provide requested relevant information in a timely man-
ner. See Detroit Newspaper Agency, supra. Moreover, the
Respondent’s duty to provide the information arises under Sec-
tion 8(a)(1) and (5) of the Act and as the Board held in Kroger
Co., 226 NLRB 512, 513 (1976):

Absent special circumstances, a union’s right to the informa-
tion is not defeated merely because the union may acquire the
information through an independent source of investigation.
The Union is under no obligation to utilize a burdensome pro-
cedure of obtaining desired information requested by the Un-
ion where the employer may have the information in a more
convenient form. The union is entitled to an authoritative
statement of facts which only the employer is in a position to
make. It is thus clear where a request adequately informs the
employer of the data needed, the employer neither must sup-
ply the information or adequately set forth the reasons why it
is unable to comply. [Footnotes and citations omitted.]

Accordingly, I find that the Respondent’s overall failure to
provide and delays in providing information violated Section
8(a)(1) and (5) of the Act, as alleged.
E. Refusal to Bargain
The Union and Respondent had three bargaining sessions
during the fall of 1995. As noted above, the Respondent failed
to provide the Union with necessary and relevant information,
and it made unilateral changes, discussed above, which resulted
ALLIED MECHANICAL SERVICES 1613
in the filing of unfair labor practice charges by the Union on
January 9 and 30, February 26, and March 6, 1996.
On March 19, the Union sent Respondent’s counsel a letter
requesting dates to continue further negotiations, and suggest-
ing seven possible dates in April and May. On March 26, Re-
spondent’s counsel replied by letter and indicated that he was
unable to agree to any of the proposed dates for bargaining. He
went on to mention pending charges and stated his belief “that
neither (party) will be able to conduct any open negotiations.”
He added that if the Union submitted a comprehensive pro-
posal, “AMS would be in a position to consider to your pro-
posal,” but he did not say that the Respondent would be willing
to meet and bargain or that the Respondent was unavailable on
the seven dates proposed by the Union.
On March 29, the Union sent another letter to Respondent’s
counsel stating that the suggested dates of April 9 and 10 and
May 2, 1996, were still available and requested that the Re-
spondent reply by April 1 so the appropriate arrangements
could be made. Respondent’s counsel did not respond. By
letter dated April 3, the Union responded to Respondent’s
counsel’s letter of March 26 and asserted that the pending un-
fair labor practices provided no impediment to having produc-
tive negotiations. The Union asked that they meet at the bar-
gaining table and engage in face-to-face negotiations and
added, “If you would provide us with the economic information
that we have requested, as the Board has recently found you
[are] legally obligated to do, it would greatly assist us in formu-
lating our requested additional bargaining dates” renewed its
information request and requested that counsel contact him in
the near future. The Respondent never responded to this letter.
The complaint alleges that Owner Huizinga told the Union
that it had no intention of ever executing a contract with the
Union. The record shows that on about November 1, 1995,
Douglas Lemmer, the Union’s financial secretary, called Huiz-
inga and asked him to have lunch with himself and business
manager Williams. Lemmer had previously worked with Huiz-
inga in the past and had a friendly but not “real personal” rela-
tionship with him. The Respondent had been a signatory of the
Union master agreement prior to 1990 and Lemmer said “the
purpose of the lunch was to try to tell him that the leadership
had changed in the local and that if there had been some bad
feelings with his predecessor that those would be gone and to
encourage John to come back into the union fold.” Lemmer
told Huizinga that he thought Huizinga would get along better
with Williams than the previous business manager. Lemmer
testified that Huizinga replied that “he didn’t think it would be
a wise idea,” because he was happy being an open shop and
that “he had no intentions of being affiliated with the union
whatsoever.” The Respondent’s counsel questioned Lemmer
about his affidavit which contained a reference to the event and
stated: “He said that he was happy operating as an open shop
and he had no intentions of signing up with a union.”
In response to my questions from the bench Lemmer credi-
bly answered that he had not used the words “master agree-
ment” or “contract” or “negotiations” during the conversation.
I otherwise credit his testimony that his purpose for the invita-
tion was not to ask Huizinga to sign the master agreement and
that he did not refer to it during the conversation. He reiterated
that the purpose was a “just to get to know one another again”
and I find that this answer lends credibility to his recall of the
actual conversation.
Huizinga recalled a conversation with Lemmer on about No-
vember 6 and asserts that he said he wasn’t interested in talking
to Williams “off the record” and that any contact and conversa-
tion should take place at the bargaining table. Respondent’s
Counsel asked Huizinga: “Did you tell Mr. Lemmer that you
would not sign a union contract under any circumstances? and
Huizinga answered “I absolutely did not.”
On brief the Respondent attempts to claim that Huizinga
merely declined to execute the Union’s master agreement,
however, Huizinga’s own testimony makes no reference to
anything he might have said to this effect and even his refer-
ence to contact at the bargaining table rings hollow inasmuch
he admitted he was not “actually” serving on the bargaining
team.
Here, I find that the Respondent’s argument merely reflects
what Huizinga retroactively believed he was thinking, not what
he said to Lemmer. I conclude that Lemmer’s testimony accu-
rately reflects what was actually said and, accordingly, I con-
clude that the statement conveys the connection that the Re-
spondent had no intention of reaching a bargaining agreement
with the Union. This conclusion is reinforced by the Respon-
dent’s conduct immediately after this conversation whom the
Respondent made the decision that it “couldn’t wait any
longer” as it “wanted” to make changes in the health insurance
plan and it proceeded to do so on December 12 by unilaterally
making the changes in direct dealings with the employee (while
Huizinga personally excluded Union representation from the
meeting room, as discussed above).
The Board, in Richhold Chemical, Inc., 288 NLRB 69
(1988), reviewed and endorsed the summary of legal principles
set forth in Atlanta Hilton & Tower, 271 NLRB 1600 (1984).
This decision held, in part:

It is necessary to scrutinize an employer’s overall con-
duct to determine whether it has bargained in good faith.
“From the context of an employer’s total conduct, it must
be decided whether the employer is lawfully engaging in
hard bargaining to achieve a contract that it considers de-
sirable or is unlawfully endeavoring to frustrate the possi-
bility of arriving at any agreement.” A party is entitled to
stand firm on a position if he reasonably believes that it is
fair and proper or that he was [sic] sufficient bargaining
strength to force the other party to agree. [Citation omit-
ted.]

Although an adamant insistence on a bargaining posi-
tion (i.e., not signing a master agreement), is not of itself a
refusal to bargain in good faith, Neon Sign Corp. v. NLRB,
602 F.2d 1203 (5th Cir. 1979), other conduct has been
held to be indicative of a lack of good faith. Such conduct
includes . . . delaying tactics, unilateral changes in manda-
tory subjects of bargaining, efforts to bypass the union,
failure to designate an agent with sufficient bargaining au-
thority, arbitrary scheduling of meetings, and, as here, non
compliance with a union’s request for information.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1614
Under the sequence of events shown above the Respondent
gained no privileged to suspend face-to-face negotiations be-
cause unfair labor practices were pending, see Caride Staple
Co., 313 NLRB 877, 890 (1994), or because it was awaiting a
comprehensive economic proposal. This is especially true
where, the employer had refused to provide the very informa-
tion that the union needed to formulate an economic proposal,
see CJC Holdings, 320 NLRB 1041, 1045 (1996). Accord-
ingly, I find that the Respondent’s conduct discussed above is
shown to be independently violative of the Act, as alleged, and
I further conclude that the Respondent’s overall conduct dem-
onstrates a failure to bargain in good faith, all in violation of
Section 8(a)(1) and (5) of the Act.
E. Vacation Pay
In late April or early May 1997, eight alleged discriminatees
submitted requests for any accrued 1997 vacation pay to which
they were entitled based on hours worked in 1996. Since 1989,
the Respondent has maintained a vacation pay policy in its
employee handbook. According to the vacation policy, em-
ployees are only eligible for vacation pay if they work at least
1150 hours in the previous year. In addition, employees who
terminate their employment with less than 2 weeks’ notice are
ineligible for any vacation pay accrued during the year of their
resignation:

Employees who terminate employment voluntarily with less
than two (2) weeks’ notice or who are discharged are not eli-
gible for vacation benefits accrued during the terminating
year.

Here, none of the eight individuals were considered to be en-
titled to vacation pay in 1997 because each either failed to work
the minimum number of hours in 1996 to qualify for 1997 va-
cation pay or, as for Jon Kinney and Rees, left with less than 2
weeks’ notice. The General Counsel produced testimony from
former employee Paul Walraben who voluntarily quit in May
1997 with only 1 day’s notice. Walraben testified that, despite
the short notice, he was paid 35 hours’ accrued vacation pay.
The Respondent, however, established that the pay represented
vacation pay for hours he worked in 1995, and which he was
eligible to receive in 1996. (Walraben was eligible for the pay
because he had accrued sufficient hours in 1995 and was on the
payroll as of December 1, 1996.)
Under these circumstances, I find that although the basis for
its action was founded on its illegal termination of six of the
employees, the Respondent is shown to have applied a long
standing policy in a nondiscriminatory manner. Although the
six illegally terminated employees are entitled to a remedy, I
find that no useful purpose would be served by finding a sepa-
rate violation of the Act in this regard, as alleged in Case 7–
CA–39872 consolidated with these proceedings at the hearing
on September 15, 1997. Accordingly, this complaint will be
dismissed. This dismissal, however, is without prejudice to the
computation of backpay and benefits which follow from the
other finding herein which would apply to the six discrimina-
tees because of the reduction in their hours of work was be-
cause of their illegal termination and the failure to reinstate
them after their unconditional offer to return to work. Accord-
ingly, such matters are deferred to the compliance stage of
these proceedings.
CONCLUSIONS OF LAW
1. Respondent Allied Mechanical Services, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Todd Hayes, Jeff Kiss, Mark Lemmer, Ron Parlin, Jeff
Warren, and Kirk Wood made valid unconditional offers to
return to work following their participation in a protected unfair
labor practice strike.
4. By failing and refusing to reinstate the named employees
on and after September 16, 1996, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
5. By notifying striking employees Todd Hayes and Kirk
Wood, Ron Parlin and Jeff Warren, and Jeff Kiss and Mark
Lemmer on May 28, June 12, and July 1, 1996, respectively,
that they would be considered to have quit their employment,
the Respondent has threatened and terminated these employees
and engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.
6. By unilaterally making changes in terms and conditions
of employment that are mandatory subjects of bargaining after
the certification of the Union as the collective representative of
the unit employees, without notice to or bargaining the Union
including: granting wage increases effective August 1996, im-
plementing new disability insurance benefits and a new health
insurance plan, and by making changes in its apprenticeship
training program, Respondent has violated Section 8(a)(5) and
(1) of the Act.
7. By refusing to timely furnish the Union with information
requested and needed in the performance of its duties as exclu-
sive collective-bargaining representative, the Respondent has
failed to bargain collectively and has engaged in and is engag-
ing in unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act.
8. By bypassing the Union and dealing directly with em-
ployees with regard to a new health insurance plan by meeting
with employees and excluding union representatives, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
9. By its overall conduct during negotiations and away from
the bargaining table, including its owner’s statement that it had
no intention of ever executing a contract with the Union, its
failure to provide the Union with requested information needed
in the performance of its duties as exclusive collective-
bargaining representative, its unilateral implementation of
changes in terms and conditions of employment, its failure to
bargain about changes that are mandatory subjects of bargain-
ing, its failure to respond to communications, its failure to
agree to dates for bargaining, and its refusal to meet with the
Union during the pendency of unfair labor practice charges, the
Respondent has failed to bargain in good faith in violation of
Section 8(a)(5) and (1) of the Act.
10. The Respondent otherwise is not shown to have engaged
in conduct violative of the Act as alleged in the complaint.
ALLIED MECHANICAL SERVICES 1615
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Inasmuch as Respondent illegally terminated Todd Hayes,
Jeff Kiss, Mark Lemmer, Ron Parlin, Jeff Warren, and Kirk
Wood at the times they went out on strike and otherwise failed
and refused to offer timely recall on and after September 16,
1996, when they made valid offers to return to work, it is rec-
ommended that Respondent must offer them reinstatement to
their former jobs or substantially equivalent positions, dismiss-
ing, if necessary, any employees hired subsequent to the date of
their termination, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them whole
for any loss of earnings including vacation benefits they may
have suffered because of the discrimination practiced against
them by payment to them of a sum of money equal to that
which they normally would have earned from the date of the
discrimination to the date of reinstatement in accordance with
the method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950).3 See also Dean General Contractors, 285 NLRB 573
(1987).
Because the record also shows that the Respondent has not
engaged in good-faith bargaining, it will be ordered to provide
information requested and to bargain in good faith with the
Union. I also find that a broad order is warranted because the
Respondent has shown a proclivity to violate the Act and has
engaged in such egregious and widespread misconduct as to
demonstrate a general disregard for employees statutory rights,
Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]

3 Under New Horizons, interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621.