APT Medical Transportation, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 2001

333 N.L.R.B. 760 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
APT Medical Transportation, Inc. and National Asso-
ciation of Government Employees

APT Ambulance Service and International Associa-
tion of EMT’S and Paramedics. Cases 31–CA–
21879 and 31–CA–21880
April 3, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On February 14, 1997, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Respondents filed an answering brief.
The National Labor Relations Board has delegated its
authority in this case to a three-member panel.
The Board has considered the decision and the record1
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions4
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER LIEBMAN, concurring.
This case arises out of first contract bargaining. The
complaint alleges bad-faith surface bargaining by the
Employer. There is perhaps no more difficult problem in
contemporary labor-management relations than achiev-
ing an initial agreement, and nothing more critical to
establishing the new relationship than the tone and con-
duct of the first negotiations. The Board should therefore
exercise special care in monitoring the first contract bar-
gaining process and closely scrutinize behavior which
“reflects a cast of mind against reaching agreement.”1
After careful review of this extremely close case, I have
concluded, in agreement with my colleagues, that al-
though there are factors indicating a lack of good faith,
on balance, the evidence does not support a finding that
the Respondents violated Section 8(a)(5). I write sepa-
rately to highlight the Board’s role in first contract cases.

1 After the issuance of the judge’s decision, the official transcript
was corrected on the motion of the General Counsel.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative 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.
3 In adopting the judge’s finding that the Respondents did not bar-
gain in bad faith, we find it unnecessary to rely on the Respondents’
request for the presence of a Federal mediator during negotiations as
affirmative evidence of good faith in the circumstances of this case.
The judge stated that a May 14, 1996 letter from the Union was an
admission against interest under Rule 804(b)(3) of the Federal Rules of
Evidence. Inasmuch as no hearsay objection was raised concerning the
letter, we do not reach the issue of whether the letter is an admission
against interest within the meaning of that rule.
4 We agree with our concurring colleague that the Board should be
especially sensitive to claims that bargaining for a first contract has not
been in good faith. Thus, the fact that the bargaining is for a first con-
tract, especially after a contentious election campaign, would be one of
the circumstances to consider in evaluating the bona fides of the bar-
gaining. However, Member Hurtgen does not necessarily endorse the
concurrence with respect to the extent to which the Board should con-
sider the substance of the proposals when evaluating the bona fides of
bargaining.
General Principles
The Board has “wide latitude to monitor the bargain-
ing process.” McClatchy Newspapers v. NLRB, 131 F.3d
1026 (D.C. Cir. 1997), citing Charles D. Bonanno Linen
Service v. NLRB, 454 U.S. 404 (1982). “It is implicit in
the entire structure of the Act that the Board acts to over-
see and referee the process of collective bargaining.”
H. K. Porter Co. v. NLRB, 397 U.S. 99, 107–108 (1970).
“[T]he Board is authorized to order the cessation of be-
havior which is in effect a refusal to negotiate, or which
directly obstructs or inhibits the actual process of discus-
sion, or which reflects a cast of mind against reaching
agreement.” NLRB v. Katz, supra, 369 U.S. 736 (empha-
sis added).
“Enforcement of the obligation to bargain collectively
is crucial to the statutory scheme. And, as has long been
recognized, performance of the duty to bargain requires
more than a willingness to enter upon a sterile discussion
of union-management differences.” NLRB v. American
National Insurance, 343 U.S. 395, 402 (1952). The par-
ties must “make a serious attempt to resolve differences
and reach a common ground.” NLRB v. General Electric
Co., 418 F.2d 736, 762 (2d Cir. 1969), cert. denied 397
U.S. 965 (1970), although the Act does not compel
agreement. NLRB v. American National Insurance, 343
U.S. at 402.
“Obviously there is a tension between the principle
that the parties need not contract on any specific terms
and a practical enforcment of the principle that they are
bound to deal with each other in a serious attempt to re-
solve differences and reach a common ground.” NLRB v.
Insurance Agents’ Union, 361 U.S. 477 (1960). Yet,
while the Board “may not, either directly or indirectly,
compel concessions or otherwise sit in judgment upon
the substantive terms of collective bargaining agree-
ments,” NLRB v. American National Insurance, 343
U.S. at 404, nonetheless “[t]o some degree the Board
often considers substance when regulating process. . . .
1 NLRB v. Katz, 369 U.S. 736, 747 (1962).
333 NLRB No. 98
APT MEDICAL TRANSPORTATION 761
[T]he Board may consider the content of a proposal
when making a determination whether the employer is
engaged in ‘surface bargaining.’” McClatchy Newspa-
pers, 131 F.3d at 1034, citing NLRB v. Pacific Grinding
Wheel Co., 572 F.2d 1343, 1348 (9th Cir. 1978). The
Board has recognized that,

[i]ndeed, the fundamental rights guaranteed employees
by the Act . . . are meaningless if their employer can
make a mockery of the duty to bargain by adhering to
proposals, which clearly demonstrate an intent not to
reach an agreement with the employees’ selected col-
lective-bargaining representative. The Board will not
have fulfilled its obligation to look at the whole picture
of a party’s conduct in negotiations if we have ignored
what is often the central aspect of bargaining, i.e., the
proposals advanced by the parties.2

In examining contract demands, the Board focuses on
whether they seem designed, not to reach agreement, but
rather to frustrate one.3 Unrealistically harsh or extreme
proposals can serve as evidence that the party offering
them lacks a serious intent to adjust differences and reach
an acceptable common ground. A-l King Size Sand-
wiches, 265 NLRB 850, 858 (1982), enfd. 732 F.2d 872
(11th Cir. 1984), cert. denied 469 U.S. 1035 (1984). Bad
faith is indicated when the proposals are so predictably
unpalatable to the other party that the proposer should
know agreement is impossible,4 or when the proposals
would leave the unions and the employees “with substan-
tially fewer rights and less protection than they would
have had if they had relied solely on the Union’s certifi-
cation.”5 When the employer’s proposals, considered as
a whole, vest nearly total discretion in the employer
while offering little in return, this does not look like the
conduct of an employer sincerely attempting to reach
agreement, but rather is evidence that it is not seeking to
bargain in good faith. Hydrotherm, Inc., 302 NLRB 990,
995 (1991).
Analysis
Determining where “hard bargaining ends and obstruc-
tionist intransigence begins” is “an inescapably elusive
inquiry.” NLRB v. Big Three Industries, 497 F.2d 43, 46
(5th Cir. 1974). In this case, the tension between the

2 Reichhold Chemicals, Inc., 288 NLRB 69, 70 (1988), enfd. sub
nom. Teamsters Local 515 (Reichhold Chemicals) v. NLRB, 906 F.2d
719 (D.C. Cir. 1990).
3 See, e.g., Viking Connectors, Inc., 297 NLRB 95 (1989); Reichhold
Chemicals, Inc., supra; A-1 King Size Sandwiches, 732 F.2d 872 (11th
Cir. 1984), cert. denied 469 U.S. 1035 (1984); and NLRB v. Mar-Len
Cabinets, 695 F.2d 995 (9th Cir. 1981).
4 NLRB v. Mar-Len Cabinets, supra.
5 A-1 King Size Sandwiches, 732 F.2d at 877.
statutory duty to bargain and the parties’ right to engage
in hard bargaining is highlighted because first contract
negotiations are at issue. These negotiations “usually
involve special problems.”6 The parties sit for the first
time across the table from each other, often with residual
bad feelings from acrimonious organizing campaigns and
without significant experience in collective bargaining or
any history to guide them. As the parties struggle to es-
tablish a newly created relationship, this first negotiation
process will be critical in shaping their attitudes toward
each other. How issues are handled will affect the tone
of the developing relationship. The Board’s role is there-
fore especially important in these cases where the doom
or success of the fledgling relationship is at stake.
It is not the Board’s function to dictate good relations
between the parties. It is, however, within our authority,
indeed it is our responsibility, to oversee the process so
as to ensure fair dealing which will enhance mutual trust
and confidence, so “basic to an effective and harmonious
collective-bargaining relationship.”7
The Board’s role is an “especially delicate” one in
“judging whether, in context, a strategy of bargaining is
more likely calculated to obstruct agreement than to
bring about the best compromise possible.” Eastern
Maine Medical Center v. NLRB, 658 F.2d 1, 10 (1st Cir.
1982). In this case, the Board’s task is “especially deli-
cate” because the surface bargaining allegations are
based exclusively on the Respondent’s substantive con-
tract demands. Thus, the tensions between our statutory
duty to insure that the parties are bargaining in good
faith, and the Act’s prohibition on our compelling
agreement on any particular terms, are in play. While, as
discussed, the Board may not sit in judgment of substan-
tive contract terms, it may evaluate the proposals to de-
termine whether, as the General Counsel contends in this
case, they evidence an intent to frustrate agreement.
Here, the Respondents’ insistence on certain positions
suggests that they were bargaining in bad faith. Their
approach to the Unions’ proposal for union security
strongly suggests an unwillingness to compromise. Ini-
tially, the Respondents rejected the Unions’ proposal on
the stated ground that it might give only union members
the power to ratify a contract. In response, the Unions
then proposed that all bargaining unit employees could
vote on ratification, that a ratification election would be
valid only if more than a specified minimum number of
employees participated, and that representatives of the
Respondents could be present when the ballots for ratifi-
cation were counted. But, the Respondents still rejected
6 N. J. MacDonald & Sons, Inc., 155 NLRB 67, 71 (1965).
7 St. Louis Typographical Union Local 8 (Graphic Arts Assn.), 149
NLRB 750, 754 (1964) (concurring opinion).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
the Unions’ proposals and gave no reason for this whole-
sale rejection of the Unions’ efforts. The Respondents’
unexplained refusal to accept, or even address, the Un-
ions’ attempts to meet their stated concerns suggests that
they had no serious intention to reach an agreement.
The Respondents also proposed a combination of a
broad management-rights clause, a no-strike clause, and
a purely internal grievance procedure. The combination
of these proposals—predictably unpalatable to the Un-
ions—also reflects bad faith. The proposed manage-
ment-rights clause gave the Respondents the rights to,
inter alia, increase or decrease operations, subcontract
work, discipline employees for cause, increase or reduce
the number of shifts and hours of overtime, and establish
a drug/alcohol testing program. The Respondents also
proposed a no-strike clause, but opposed the Unions’
request for a grievance-arbitration procedure. Indeed, the
Respondents’ initial proposal for a grievance procedure
gave ultimate control over the resolution of grievances to
the Respondents’ president, Ralph Smith. In response to
the Unions’ proposal for a grievance-arbitration proce-
dure, the Respondents proposed an internal labor man-
agement council that would refer grievances, when con-
sensus was not reached, to President Smith. He was the
final authority on disciplinary matters, yet under the pro-
posal he would also remain the final arbiter on disputes
(including discipline) when the council could not reach
agreement. He would also have the right to choose and
remove the management representatives on the proposed
council.8 Viewed together, these proposals seem to vest
in the Respondents total discretion over significant as-
pects of employment. In effect, by retaining final control
over these matters, the Respondents sought to leave the
Unions with fewer rights than they would have relying
merely on their certification. Hydrotherm, Inc., supra,
302 NLRB at 995. All of this favors an inference of bar-
gaining with an intent to frustrate agreement.
Other record evidence suggests otherwise, however,
and weighs against an inference of bad faith. The Un-
ions stated that they viewed the Respondents’ manage-

8 There is no testimony or documentary evidence in the record about
how the management representatives to the labor management council
proposed by the Respondents were to be selected. The Respondents’
written proposal is silent on this question, and no witnesses testified
about it. The judge asked how the management representatives would
be selected, and a witness replied that that had not yet been proposed or
discussed. However, the judge stated in his decision that “the Respon-
dent offered to agree to a management-labor council with the manage-
ment members apparently appointed by Smith and subject to his re-
moval.” No exceptions were filed to this finding. Further, the Respon-
dents state in their answering brief (p. 5): “In response to the Union’s
proposal for binding arbitration, the Respondent offered to agree to a
Management Labor Council, with management members appointed by
Smith and subject to his approval.”
ment-rights clause as a bargaining chip to be traded for
arbitration or union security. They viewed the Respon-
dents’ proposal for a no-strike clause in the same way.
Thus, the Unions would have accepted the no-strike
clause in exchange for arbitration. Further, as the judge
found, the Respondents indicated that they might have
been willing to give up a no-strike clause in exchange for
the Unions’ foregoing of an independent arbitrator. Es-
pecially since the discussion of management-rights and a
no-strike clause had not yet progressed very far, the pres-
ence of possibilities for exchange and compromise
weighs against an inference of bad-faith bargaining.
Despite the lack of movement on management rights,
the no-strike clause, and the Unions’ requests for an arbi-
tration procedure and a union-security clause, the Re-
spondents did make concessions in other areas. At the
Unions’ urging, they did offer to delete the provision in
the seniority clause that gave them sole discretion to de-
termine whether skills and abilities were equal among
employees so that departmental seniority would prevail.
They also reached tentative agreements on such matters
as rotation of overtime, supervisory duties, the definition
of part-time employee, and job bidding. This movement,
too, weighs against an inference that the Respondent had
no serious interest in reaching an agreement.
Finally, and perhaps most importantly, the parties had
not even started bargaining about economics. There
might well have been room for the Respondents to back
off from their positions on management-rights, a no-
strike clause, the grievance procedure, and union security
in exchange for favorable economic terms. That the par-
ties had not reached the issue of economics where com-
promises might well have been made is a factor weighing
against the inference of bad-faith bargaining.9
This is an extremely close case with evidence reflect-
ing both an intent to frustrate agreement and room for
compromise. On balance, however, I find that the weight
of the evidence does not reflect a clear intent to frustrate
agreement. Rather, the factors against an inference of
bad-faith bargaining outweigh those favoring it. There
may well have been more effective ways to seek agree-
ment in this first contract dispute. And, the Respon-
dents’ approach to seeking common ground may not
have been entirely conducive to achieving future har-
mony. However, in this difficult area, where lines are
9 Contrary to the judge, I do not find that the Union’s May 14, 1996
letter to its membership stating that the Respondents are bargaining in
good faith favors a finding that the Respondents did not violate Sec.
8(a)(5). The determination of whether parties have bargained in good
faith is based on objective factors. Reichhold Chemicals, Inc., supra,
288 NLRB 69. The subjective view of the union is not probative of the
respondent’s good- or bad-faith bargaining. San Isabel Electric Ser-
vices, 225 NLRB 1073, 1079 (1976).
APT MEDICAL TRANSPORTATION 763
hard to draw, I cannot conclude that the Respondents
crossed the line from hard, but lawful, to hard (overly)
but bad-faith bargaining. For these reasons, I join my
colleagues in adopting the judge’s dismissal of the com-
plaint.

Ann L. Weinman, Esq., for the General Counsel.
John W. Harris, Esq., of Los Angeles, California, for the Re-
spondents.
Harry F. Berman, Esq., of Ventura, California, for the Charg-
ing Parties.
DECISION1
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Los Angeles, California, on
August 26 and 27, 1996,2 pursuant to an order consolidating
cases, consolidated complaint and notice of hearing issued by
the Regional Director for the National Labor Relations Board
(the Board) for Region 31 on June 25, 1996, and which is based
upon charges filed by National Association of Government
Employees (NAGE) and International Association of EMT’s
and Paramedics (IAEP])(the Unions, NAGE, or IAEP) on
March 18, 1996 (original for both cases), on April 22, 1996, in
Case 31–CA–21879 (first amended), on May 15, 1996, in Case
31–CA–21880 (first amended), and on June 14, 1996, in both
cases (second amended). The complaint alleges that APT
Medical Transportation, Inc. (AMTI) and APT Ambulance
Service (APT) (Respondents) have engaged in certain viola-
tions of Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act).
Issues
Whether Respondents have failed and refused to bargain in
good faith with the Unions as the respective exclusive collec-
tive-bargaining representatives of the AMTI and APT units
(nonemergency and emergency units respectively).
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of Charging
Party Unions and Respondents.3
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENTS’ BUSINESS
Respondents admit that they are California corporations and
that each maintains a place of business located in Los Angeles,
California, where AMTI provides nonemergency medical trans-

1 The two volumes of transcript prepared for this case are of excep-
tionally poor quality, possibly the worst I’ve seen. No party has pre-
sented a motion to correct transcript and I am not able to make correc-
tions on my own motion since it would involve rewriting a large part of
the transcript.
2 All dates herein refer to 1995 unless otherwise indicated.
3 In lieu of a brief, the General Counsel cited cases and made argu-
ments during the hearing.
transportation services and APT provides ambulatory and
emergency medical care services in the Los Angeles, California
area. They further admit that during the past year, in the course
and conduct of their businesses that their gross revenues ex-
ceeded $500,000 and that annually APT purchases and receives
goods valued in excess of $50,000 directly from entities located
outside the State of California. In the case of AMTI, it receives
goods valued in excess of $50,000 from entities located inside
the State of California, which entities in turn purchase these
goods in essentially the same form directly from entities located
outside the State of California. Accordingly, they both admit,
and I find, that they are employers engaged in commerce and in
a business affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents admit, and I find, that NAGE and IAEP are la-
bor organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. Overview
Respondents are charged herein with “surface bargaining
based primarily on proposals” (GC opening statement, Tr. 23).
Later in her opening statement, the General Counsel made it
clear that her theory of surface bargaining was based not “pri-
marily” but exclusively on proposal content (Tr. 27–29). In
due course, I will consider the evidence. But initially it will be
helpful to understand the concept of surface bargaining, a form
of bad-faith bargaining, which when proven, will be found to
violate the Act.
In three recent cases, the Board affirmed the decisions of the
administrative law judges’ findings that Respondents had en-
gaged in surface bargaining in violation of Section 8(a)(1) and
(5) of the Act. See ConAgra, Inc., 321 NLRB 944 (1996);
Bryant & Stratton Business Institute, 321 NLRB 1007 (1996);
and Horsehead Resource Development Co., 321 NLRB 1404
(1996). These decisions and other authorities along with my
findings of fact will determine my decision herein. For now, I
quote the judge in Horsehead Resource Development Co., su-
pra at 1416, who explains,

The duty to bargain in good faith mandated in Section 8(a)(5)
and Section 8(d) of the Act requires more than “going through
the motions of negotiating”; it requires instead that both par-
ties approach bargaining with a “serious intent to adjust dif-
ferences and to reach an acceptable common ground.” NLRB
v. Truitt Mfg., 351 U.S. 149, 155 (1956). But Section 8(d) of
the Act makes it equally plain that good-faith bargaining
“does not compel either party to agree to a proposal or require
the making of a concession.”[Footnote omitted.]
The determination of whether a bargaining party has
engaged in unlawful “surface bargaining,” or has instead
merely engaged in lawful “hard bargaining,” is usually a
difficult one, because (a) it involves, at bottom, a question
of the “intent” of the party in question, and (b) usually
such intent can only be inferred from the totality of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
challenged party’s conduct at the bargaining table, and not
from any position it may take on any single bargainable is-
sue or set of issues. Moreover, exactly what features
within the challenged party’s overall bargaining behavior
may properly give rise to an inference that the party has no
“sincere desire” to reach agreement has been the subject of
ongoing debate within the Board.
Such questions were revisited by the Board in its
original decision in Reichhold Chemicals, 277 NLRB 639
(1985). There, the Board reiterated that it is “not the
Board’s role to sit in judgment of the substantive terms of
bargaining,” and stated further that,

[t]he Board will not attempt to evaluate the reason-
ableness of a party’s bargaining proposals, as distin-
guished from bargaining tactics, in determining
whether the party has bargained in good faith. [Id. at
640.]

But in a “supplemental decision” in Reichhold Chemicals
[288 NLRB 69 (1988) (Reichhold II)] a differently constituted
Board reconsidered the original decision, particularly the dicta
just quoted. Finding these dicta “imprecise” as a “description
of the process the Board undertakes in evaluating whether a
party has engaged in good faith bargaining,” the Board
(Member Johansen dissenting) stated:

Specifically, the quoted sentence could lead to the
misconception that under no circumstances will the
Board consider the content of a party’s proposals in
assessing the totality of its conduct during negotia-
tions. On the contrary, we wish to emphasize that in
some cases specific proposals might become relevant
. . . . The Board’s earlier decision is not to be con-
strued as suggesting that the Board has precluded itself
from reading the language of contract proposals and
examining insistence on extreme proposals in [some
instances].
That we will read proposals does not mean,
however, that we will decide that particular pro-
posals are either “acceptable” or “unacceptable”
to a party. Instead . . . we shall continue to ex-
amine proposals when appropriate and consider
whether on the basis of objective factors, a de-
mand is clearly designed to frustrate agreement
on a collective-bargaining contract. The
Board’s task in cases alleging bad-faith bargain-
ing is the often difficult one of determining a
party’s intent from the aggregate of its conduct.
In performing this task we will strive to avoid
making purely subjective judgments concerning
the substance of proposals. [Emphasis added.]

See also, e.g., 88 Transit Lines, 300 NLRB 177 (1990).
There, the Board, reversing the administrative law judge’s
finding that the employer engaged in unlawful surface bar-
gaining, cautioned on the one hand that:

we risk running afoul of Section 8(d) if we predicate a
finding of bad faith on a party’s refusal to agree to the ex-
act language of the other party’s proposals. [Id. at 178.]

But on the other hand, the Board acknowledged (id.):

Of course, if a party is so adamant concerning its own
initial positions on a number of significant mandatory sub-
jects, we may properly find bad faith evinced by its “take-
it-or-leave-it” approach . . . . Furthermore, there may be
cases [where] the substance of a party’s bargaining posi-
tion is so unreasonable as to provide some evidence of
bad-faith intent to frustrate agreement.

In Chevron Chemical Co., 261 NLRB 44, 45 (1982),
the Board stated:

Determining whether parties have complied with
the duty to bargain in good faith usually requires ex-
amination of their motive or state of mind during the
bargaining process, and is generally based on circum-
stantial evidence, since a charged party is unlikely to
admit overtly having acted with bad intent. Hence, in
determining whether the duty to bargain in good faith
has been breached, particularly in the context of a
“surface bargaining” allegation, we looked to whether
the parties’ conduct evidences a real desire to reach an
agreement—a determination made by examination of
the record as a whole, including the course of negotia-
tions as well as contract proposals.

The totality of Respondent’s conduct both at the bar-
gaining table and away from the table must be analyzed in
accordance with the guidelines established by the Board
and court cases indicated above. Thus, the employer’s
overall conduct must be scrutinized in order 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 en-
gaging in hard bargaining to achieve a contract that it
considers desirable or is unlawfully endeavoring to
frustrate the possibility of arriving at any agreement.”
. . . .
A party is entitled to stand firm on a position if he rea-
sonably believes that it is fair and proper or that he has
sufficient bargaining strength force the other party to
agree. [NLRB v. Advanced Business Forms Corp., 474
F.2d 457, 467 (2d Cir. 1973).]
2. The negotiators
Initially, the Unions were represented by Mike Rupert, then
regional director for IAEP, and Vince Pernisco, a second union
official. Neither Rupert nor Pernisco testified, but other testi-
mony indicated that both ceased working for the Union some-
time after the beginning of 1996. They were replaced as union
negotiators by Harry Berman, regional attorney for IAEP, and
the General Counsel’s sole witness at hearing. In addition to
testifying, Berman also represented the Charging Party Unions.
During the time he was chief negotiator for the Unions, Berman
was assisted by Mustafa Tahjuddin, a national representative
for IAEP. Tahjuddin testified as Respondents’ witness.
APT MEDICAL TRANSPORTATION 765
Respondents were represented during the entire course of
negotiations by Jim Richardson, the second of two respondent
witnesses. Richardson is the regional manager of the California
Association of Employees (CAE). In late June, Respondents
joined CAE with the understanding that in return for their dues,
Respondents would receive the services of Richardson as both
advisor and negotiator. The time Richardson spent on negotia-
tions exceeded the time provided to employers by virtue of
their membership in CAE. Accordingly, Richardson entered
into a supplemental agreement by which he received additional
compensation from Respondents in an amount not specified in
the record.
3. The negotiations
Most of the central facts in this case are undisputed. All
agree that the Unions and Respondents were negotiating over
their first collective-bargaining agreements. All also agree that
to begin negotiations, Rupert contacted Richardson by phone in
early September and at or about the same time transmitted to
Richardson a first written union proposal for the emergency
unit.4 For unknown reasons, this proposal is not contained in
the record. However, two later proposals (emergency and
nonemergency) sent by Rupert to Richardson in November are
contained in the record (R. Exhs. 3, 4; Jt. Exhs. 3, 4).
a. October 3. This first meeting was held at the offices of the
Federal Mediation and Conciliation Service (FMCS), Glendale,
California.5 The location was chosen because Richardson had
requested sometime prior to October 3, that the parties work
with a Federal mediator and the Unions agreed. Either at this
first meeting or shortly before, Richardson tendered on behalf
of the emergency unit, the first employer proposal to the Un-
ions (Jt. Exh. 1). This first meeting lasted between 2–3 hours
and tentative agreements (TAs) were reached on certain minor
issues such as scope of agreement, jury appearances and defini-
tion of supervisor.
b. October 18 meeting did not take place due to family emer-
gency in the home of Respondents’ owner, Ralph Smith.
c. November 6. Respondents tendered a second proposal for
the emergency unit. The Unions reviewed this proposal in
caucus, and a few TAs were reached in the short subsequent
meeting such as on probation period, portions of holiday article
and family medical leave policy.
d. November 14 meeting did not take place due to Govern-
ment shutdown and unavailability of FMCS offices.
e. November 29. Only a short meeting occurred due to un-
availability of Federal mediator. The parties reviewed propos-
als but did not engage in bargaining.
f. December 14. Again the parties reviewed proposals for
the emergency unit but apparently did little or no substantive
bargaining.
g. December 18 meeting did not take place for the same rea-
son that canceled November 14 meeting.

4 During the hearing, the terminology for the two units varied: to
avoid confusion, I will use the terms “Emergency” to refer to the ambu-
lance unit and “non-Emergency” to refer to the transportation or bus
units.
5 All face to face meetings were held at this location.
h. January 2, 1996 meeting did not take place for the same
reason that canceled November 14 meeting.
i. January 9,1996. Pernisco showed up to explain that Rupert
was no longer employed by the Union and Pernisco was not
aware of nor prepared for any bargaining on that day. Richard-
son gave Pernisco a company proposal for the nonemergency
unit (R. Exh. 5) and the parties adjourned without bargaining.
j. February 8, 1996. The parties bargained by telephone6
with Berman representing the Unions for the first time. The
parties negotiated for the nonemergency unit for about 4 hours.
During this session, the parties discussed certain provisions of
proposals previously tendered (Jt. Exhs. 2–5) and reached TAs
on subjects such as working conditions article, overtime, and
employee time records.
The subject of binding arbitration also was introduced by
Berman. Richardson opposed it, saying the Unions had filed
[frivolous] charges in the past and Respondents preferred not to
have binding arbitration. Richardson added that the company
president, Smith, desired to continue having the final word
regarding any grievances.
Berman testified that a union-security clause was discussed
but Richardson denied that it was, testifying that the session
ended before the parties could discuss the subject. This differ-
ence of opinion is not critical since all agree that whenever
discussed, the union-security clause was obviously desired by
the Unions and opposed by Respondents.
k. February 20, 1996 meeting did not occur as was canceled
by Respondents on the grounds that the Unions had been visit-
ing community leaders and Respondents’ vendors, and leaving
with them bulletins and notices presumably about the status of
negotiations. Respondents desired to formulate a response to
this tactic before resuming negotiations.
l. March 5, 1996 meeting did not occur as Ralph Smith can-
celed meeting on March 4, on “advice of counsel.”
m. April 2, 1996. The parties bargained by telephone for the
second and last time. During the 3-hour session for the none-
mergency unit, the parties discussed many subjects including
arbitration. After Respondents continued to oppose it on the
grounds that the Unions would file frivolous grievances thereby
costing the Employers money, Berman made a verbal proposal
that the loser would have to pay the costs. Richardson coun-
tered this by contending that it is not always clear who wins in
arbitration and this uncertainty could lead to additional griev-
ances.
Berman made another verbal proposal to trade a broad man-
agement-rights clause for either binding arbitration or a union-
security clause. Richardson opposed a union-security clause on
grounds that it would tend to erode employee free choice.
n. April 16, 1996 meeting not held on grounds, per Richard-
son call to Berman on April 15 that due to a FMCS glitch, no
mediator had been scheduled for the next day so Richardson
would not appear. Berman told Richardson the Unions desired
to negotiate even without the mediator and that Berman would
6 According to Berman, the Unions agreed to negotiate by phone af-
ter Richardson had expressed some concern about negotiating in the
presence of a group of hostile employees. Richardson’s thought
seemed like a good idea to Berman (Tr. 89–90).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766
appear as previously scheduled. Berman did appear but
Richardson did not.
Although the scheduled bargaining session did not occur,
Respondents nevertheless faxed to Berman a set of current
proposals for the emergency unit with indications made for
TAs, for identical proposals previously tentatively agreed to for
nonemergency unit, for prior unchanged company proposals,
and for prior company proposals which are amended (Jt. Exh.
11).
o. April 17, 1996. This meeting did occur for the emergency
unit. TAs were reached on work shifts and some safety issues.
There was movement on shift trades and employee reporting
pay. Richardson promised to prepare a company wage pro-
posal soon.
Berman again raised the issue of binding arbitration and ver-
bally proposed that an arbitrator be selected from either FMCS
or American Arbitration Association or alternatively, from the
ranks of religious or political leaders. More specifically, Ber-
man proposed steps in the grievance process: (1) adverse man-
agement decision; (2) a labor management committee to review
the matter, and if no consensus; and (3) arbitration. Respon-
dents rejected this on the grounds that Ralph Smith had never
met any religious or political leaders he could trust and he op-
posed binding arbitration in any event. Respondents made no
counterproposal.
As to management rights, Berman offered to trade the Un-
ions’ agreement for other concessions in arbitration or union
security, but this offer was rejected.
p. May 8, 1996. This meeting did occur for the emergency
unit and arbitration and union security were discussed, but there
was no movement. Richardson submitted a partial proposal at
the meeting (Jt. Exh. 7).
q. May 15, 1996. This meeting did occur and by agreement
of the parties, the discussion continued to focus on the emer-
gency unit, but without significant results. That is, there were
the usual TAs on minor issues such as certain aspects of senior-
ity and reporting pay. The stalemate over arbitration and union
security continued.
On the seniority issue, Respondents first stated that job clas-
sification seniority within a given department should prevail
provided that skill, ability, and job performance including
punctuality, absenteeism and discipline were equal between
employees, and Respondents would be the sole judge of these
factors. Later on May 15, Respondents agreed to drop this
assertion that they would be the sole judge.
However, Respondents continued to oppose any form of
binding arbitration, telling the Unions, their only remedy for
grievances would be to sue in court to enforce provisions of the
contract. Again, Respondents rejected the Unions’ proposal
that the loser pay all costs associated with binding arbitration.
The Unions proposed to trade its agreement to a manage-
ment-right proposal for binding arbitration, but to no avail.
As to the union-security clause, the Unions made various
proposals to allay the Respondents asserted fears that with such
a clause, a minority of employees, union members, could dic-
tate to the majority, nonmembers, on such issues as ratification
of the agreement and the resulting union dues, which the major-
ity would allegedly oppose. The Unions made various propos-
als here to achieve a union-security clause such as agreeing that
all bargaining unit employees, whether or not union members,
could vote on ratification, that all ballots on the ratification vote
could be impounded in a sealed ballot box not to be counted
except in the presence of a management representative and that
the minimum percentage of all unit employees who needed to
vote to have a valid ratification election would be subject to
negotiation. Respondents rejected all of these proposals with
no counterproposals.
r. June 19, 1996. This meeting did occur for the emergency
unit. Respondents made a written proposal regarding arbitra-
tion. While there would still be no binding arbitration by a
neutral arbitrator, Respondents proposed a step in the grievance
procedure whereby a labor management committee would be
appointed consisting of two members from each side. Within
10 business days of receipt of a grievance, the committee would
convene to hear and consider the grievance. If a consensus is
reached, decision is to be final; if no consensus is reached, the
prior decision of the president will be final (R. Exh. 6). The
Unions rejected this proposal, and Respondents again rejected
any concept of binding arbitration by a neutral arbitrator on the
grounds that the cost is too high and that in the past, Respon-
dents’ rights had not been protected.
As to union security, the Respondents continued to oppose
this in any form and never changed their position.
Apparently no further bargaining sessions were held for the
emergency unit. One or more sessions were held for the none-
mergency unit but these were subsequent to the issuance of the
complaint and were not covered in the hearing. No party con-
tends any breakthroughs occurred at sessions held on July 2,
1996, and perhaps subsequent to that day. Joint Exhibit 9 con-
sists of various proposals for the nonemergency unit submitted
by either the Respondents or the Unions on different dates dur-
ing May and June 1996. Joint Exhibit. 10, also for the none-
mergency unit, consists of various partial proposals, primarily
relating to proposed wage schedules, submitted either by the
Respondents or Unions during August 1996.
B. Analysis and Conclusions
1. Legal principles
In Bryant & Stratton Business Institute, supra, 321 NLRB
1007, 1041, the judge states applicable law:

In determining whether an employer has engaged in
surface or bad faith bargaining, the Board examines the to-
tality of the employer’s conduct, both away from and at
the bargaining table, including the substance of the pro-
posals on which the party has insisted, for evidence of the
real desire to reach agreement. Overnite Transportation
Co., 296 NLRB 669 (1989), enfd. 938 F.2d 815 (7th Cir.
1999); Atlanta Hilton & Towers, 271 NLRB 1600 (1984).

In the instant case, the General Counsel points to no conduct
away from the table which she contends supports her case.
Instead, she proposes to rest her entire case on content of Re-
spondents’ proposals. However, relevant conduct away from
the table does exist; it merely happens to support Respondents’
theory, that it did not engage in surface or bad-faith bargaining.
APT MEDICAL TRANSPORTATION 767
2. Conduct away from table
a. Federal mediator. It is undisputed that virtually from the
beginning of negotiations, Respondents desired the presence of
a Federal mediator. The Unions joined in requesting the media-
tor and I find this fact weighs in Respondents’ favor, since it is
difficult to believe that Respondents could on the one hand ask
for the neutral to assist in reaching agreement and on the other
hand just be going through the motions. Berman conceded in
his testimony that generally the party requesting a Federal me-
diator is desirous of reaching agreement (Tr. 131–132). Cf.
NLRB v. Cambria Clay Products Co., 215 F.2d 48, 55 (6th Cir.
1954).
b. Respondents’ chief negotiator. Richardson was retained
as Respondents’ chief negotiator in late June. I find Richard-
son, the witness, to be low key, professional, and credible in his
demeanor. I find Richardson, the negotiator, to be the same. In
this opinion, I am joined by a union official who was called as a
Respondent witness. According to Tahjuddin, the Respon-
dents’ owner, Ralph Smith, was present at some or all of the
negotiations prior to May 1996, and his presence was intimidat-
ing to the negotiations; in the words of Tahjuddin [Smith’s]
“demeanor was very ominous, . . . you didn’t want to be there,
he was very cold, very short.”7 Then in one or more subse-
quent meetings, Smith was not present and the negotiating team
for management was “more amicable, more cordial. . . . When
this happened, it made quite an impression on me, and we had
started to move on some of the issues at that time.” So Tahjud-
din was under the impression that management was bargaining
in good faith (Tr. 152–153). In fact, Tahjuddin shared that
impression with the general membership of the emergency unit
by writing them a letter:

May 14, 1996

Dear Union Brother/Sister

I am happy to report that the last two (2) contract ne-
gotiations went well, and management understands that we
are not going away, and is in fact now BARGAINING IN
GOOD FAITH. We applaud management, and in particu-
lar, Vance Smith and Chris Jordan, who were extremely
cooperative in finding a middle ground in which we can
negotiate as gentlemen. Also to Ralph, without whose di-
rections, his designates could not function.
We also are pleased to announce that Corey Brooks, a
former employee, has received a judgment for lost wages
from the courts against A.P.T., (see attached copies).
Also, a court ordered posting of management violations
SHOULD be posted at both Crenshaw Station, as well as
Hawthorne Station. These are acknowledgments of wrong
doing by management against employees at A.P.T.
Both Corey’s case and the postings are a direct result
of efforts from the legal staff of YOUR union!! This was
all done at no cost to anyone except I.A.E.P.!!!
If you haven’t filled out a union card, please do so
TODAY!!! You may not realize it, but you are moments

7 Of course, I express no opinion on whether Tahjuddin’s description
of Smith, who did not testify, is accurate.
away from victory. Remember, without YOU there is no
union!

In solidarity,

/s/ Paul E. Jennings, Regional Director

For Mustafa “Hawk” Tahjuddin
National Representative

[R. Exh. 2.]8

The statements contained in the letter above is an admission
against interest under 804(b)(3) FRE which I weigh in Respon-
dents’ favor. NLRB v. Cal-Maine Farms, 998 F.2d 1336, 1343
(5th Cir. 1993).
c. No independent unfair labor practices charged nor found.
No independent unfair labor practices are charged nor even
offered by the General Counsel as background. In this respect,
I note that the Board’s rule,

“[I]t is elementary that collective bargaining is most effec-
tively carried out by personal meetings and conferences of
parties at the bargaining table,” and that [I]ndeed imposes this
duty to meet.” [Citation omitted.] . . . . an employer “may not
insist that negotiations be conducted over the phone or by
mail.” [Foundation Lodge, Inc., 269 NLRB 674 (1984).]

In this case, there were two sessions conducted over the tele-
phone. Other sessions were canceled due to a Government
shutdown and the unavailability of the Federal mediators. Still
other sessions were canceled for certain personal reasons or
confusion. Because the General Counsel specifically limited
the issues at hearing to the content of Respondents’ proposals, I
express no opinion over any issue concerning alleged dilatory
tactics or even whether it appears the parties have had an ade-
quate time to resolve their differences in attempting to reach
their first collective-bargaining agreement.9 I specifically find
that none of this was litigated at hearing. I also find that there
is no evidence outside of the negotiations indicative of a cast of
mind against reaching agreement.10 Finally, I note that Re-
spondents reached TAs on a number of issues, made some con-
cessions, and explained why they were standing fast on certain
proposals. All of this is evidence of good faith on their part.
McClatchy Newspapers, 307 NLRB 773, 780 (1992); Litton
Systems, 300 NLRB 324, 330 (1990).
8 By implication, Tahjuddin appears to be saying that at a time prior
to the date of the letter, Respondents were not bargaining in good faith.
This implied assertion does not constitute credible evidence. More-
over, the evidence presented to me does not support that opinion.
9 However, cf. Bell Transit Co., 271 NLRB 1272, 1273 fn. 10
(1994), and Old Man’s Home of Philadelphia, 265 NLRB 1632, 1634
(1982).
10 Compare: “M” System, Inc., 129 NLRB 527 (1960), and NLRB v.
My Store, Inc., 345 F.2d 494 (7th Cir. 1965), cert. denied 382 U.S. 927
(1965), where the employers demonstrated animosity against the union
before it was elected bargaining representative or before negotiations
began. By contrast, the parties here barely raised their voices during
negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768
3. Respondents’ proposals
In turning to Respondents’ proposals, I first note the recent
case of McClatchy Newspaper, Inc., 321 NLRB 1386, 1390
(1996), where the Board stated:

The Supreme Court declared in no uncertain terms that the
Board may not “either directly or indirectly . . . sit in judg-
ment upon the substantive terms of collective-bargaining
agreements.” American National Insurance, 343 U.S. at 404.
Yet, the Board had held, with court approval, that even
though a bad-faith refusal to bargain may not be based solely
on the substantive content of an employer’s bargaining pro-
posals, those bargaining proposals can constitute evidence of
bad-faith bargaining. [Citations omitted.]
a. Grievance and arbitration
It is undisputed that Respondents opposed a grievance and
arbitration clause with a neutral arbitrator. In a context differ-
ent from that existing in the instant case, the Supreme Court has
recognized the central role of arbitration in effectuating na-
tional labor policy. Citing a past case of Steelworkers v. War-
rior & Gulf Navigation Co., 363 U.S. 574, 578 (U.S. Ala.
1960), the court in John Wiley & Sons v. Livingston, 376 U.S.
543, 459 (1964), stated that arbitration is described as “the
substitute for industrial strife,” and is “part and parcel of the
collective bargaining process itself.” At one point in the pre-
sent case, the Unions proposed that no discharge or discipline
occur but for “just cause.” To this Respondents made a
counter/proposal allowing apparently only discharge to be gov-
erned by a just cause standard (Tr. 229–230).
A just cause standard without a neutral arbitrator to render a
binding decision, explained Richardson, would mean that the
Unions would have to sue in court or use some other method of
resolving the particular issue (Tr. 230). As noted above, the
Respondents offered to agree to a management labor council
with the management members apparently appointed by Smith
and subject to his removal. I find that the refusal to agree to a
neutral arbitrator, either a business, political, or religious
leader, or a professional arbitrator is not, by itself, evidence of
bad faith. The Board has taken the position that the absence of
a neutral outside arbitrator is not an absolute bar to deferral by
the agency. See Roadway Express, Inc., 145 NLRB 513
(1963). The Board maintains its position despite the argument
by then Member Jenkins that unless a joint employer-union
panel included an outside neutral arbitrator, it was not really
engaging in arbitration and the making of a binding impartial
award. Automobile Transport, Inc., 223 NLRB 217 (1976). If
the Board will defer to a mechanism without a neutral outside
arbitrator on the one hand, then it would be inconsistent to find
that the making of such a proposal by respondent constitutes
evidence of surface bargaining.
I find that Respondents’ rejection of compulsory arbitration
with an independent outside arbitrator because it was too
costly, led to frivolous grievances, and was not in reality final
(because sometimes difficult to tell who prevailed) is not evi-
dence of surface bargaining or bad faith. Boaz Carpet Yarns,
Inc., 280 NLRB 40, 43–44 (1986).11
b. No-strike clause
Where bad-faith bargaining is found, the Board and courts
frequently note the employer’s coupling of a refusal to agree to
an arbitration clause and insistence on a no-strike clause. See,
e.g., Chevron Oil Co. v. NLRB, 442 F.2d 1067 (5th Cir. 1971).
In that case, the court explicitly rejected the notion that a no-
strike clause and an arbitration clause were so much one that a
persistent demand for the one without acquiescing in the other
is a refusal to bargain in good faith. (Id. at. 1073.)12
The court’s decision in Chevron Oil Co., supra, overturned a
Board decision and thus cannot be cited by me in support of the
decision I reach. However, I note in the instant case, Respon-
dents did not oppose all arbitration, only that reached by a neu-
tral outside arbitrator. In this case, Respondents proposed a no-
strike clause but it was never discussed in detail. Berman testi-
fied that it was always understood by both the Unions and man-
agement, that at some point this would be something the parties
would bargain into the contract (Tr. 112). Berman saw the no-
strike clause as a bargaining chip to be traded for a workable
arbitration clause, union security, and other objectives favored
by the Unions. Both the Unions and Respondents traded pro-
posals with a no-Strike/no-lockout provision (R. Exhs. 3, 4, art.
XVI, emergency transmitted in September and nonemergency
transmitted in November); (Jt. Exh. 1, art. XVI, emergency
transmitted in October).
As mentioned above, the use of the no-strike clause as a bar-
gaining chip as envisioned by Berman cuts both ways. That is,
if Respondent would not agree to a neutral outside arbitrator,
then presumably the Unions would not agree to a no-strike
clause. There is no evidence that Berman in fact adopted this
tactic, but only because he wanted what he believed the no-
strike clause would buy. I do not find that Respondent was as
adamant with respect to the no-strike clause as it was with re-
spect to the no independent arbitrator and no union security. So
I conclude that in this case the coupling of the two clauses does
not compel a finding of surface bargaining.

11 To the extent, the union might have challenged the employer’s as-
serted reasons, it could have filed one or more information requests, but
did not do so.
12 I also note the case of Cummer-Graham Co., 122 NLRB 1044
(1959), enf. denied 279 F.2d 757 (5th Cir. 1960). In that case too, the
employer would not agree to an arbitration clause but was adamant in
insisting upon inclusion of a no-strike clause. Again, the Board found a
refusal to bargain in good faith, but the court refused to enforce. Both
Cummer-Grahram Co. and Chevron Oil Co. cases may be distin-
guished from the instant case. At the April 17, 1996 meeting, Richard-
son told the Unions that the Company did not like the arbitration proce-
dure in general, in part, because of its cost, and the Company felt the
Unions could use whatever economic means it wanted to be able to
enforce that kind of provision (Tr. 199). Richardson’s statement means
to me that the employer was willing to trade a no-strike clause in return
for the Unions’ foregoing of an independent arbitrator clause, and this
indicates a degree of good faith.
APT MEDICAL TRANSPORTATION 769
c. Management-rights clause
Respondents proposed a management-rights clause (Jt. Exh.
1, art. XIV), which reads as follows:

ARTICLE XIV—MANAGEMENT RIGHTS
A. Except as expressly and specifically limited or re-
stricted by a provision of this Agreement, the Employer
has and shall retain the full right of management and the
direction of its business and operation. Such rights of
management include, among other things, but are not lim-
ited to: the right of the Employer, in its sole discretion, to
plan, control, increase, decrease, or diminish operations or
areas, in whole or in part; to subcontract work; to intro-
duce new methods or methods of delivery, techniques,
and/or equipment; to hire, suspend, transfer, discharge, or
discipline employees for cause as defined elsewhere in this
Agreement, or to relieve or terminate employees for lack
of work or for other causes other than for membership in
the Union; to separate probationary employees during their
probationary period without recourse; to add to or reduce
the numbers of shifts, the work schedule and/or the num-
ber of overtime hours to be worked; and to determine the
number of employees that it shall employ at any time and
the qualifications necessary for any of the jobs it shall
have or create in the future, including hiring seasonal em-
ployees; to, in its sole discretion, assign or reassign work
duties, both of regular and overtime work in accordance
with its determination of the needs of the respective jobs
and operations; to adopt and from time to time modify, re-
scind, or change safety and work rules and regulations so
long as such rules are not inconsistent with an express
provisions of this Agreement and/or State or Federal Law,
and to enforce such rules; to establish a drug/alcohol test-
ing program; to select the persons lt.[sic] shall hire; and to
select and assign such duties as it deems appropriate to su-
pervisory and other categories of employees excluded
from this Agreement.
B. All rights heretofore exercised by the Employer or
inherent in the Company and not expressly contracted
away by the specific provisions of this Agreement are re-
tained solely by the Employer. The failure of the Em-
ployer to exercise any function, power, or right reserved or
retained by it, or the exercise of any power, function or
right in a particular manner shall not be deemed a waiver
of the right of the Employer to exercise such power, func-
tion, authority, or right, or to preclude the Employer from
exercising the same in some manner so long as it does not
conflict with an express provision of this Agreement, or
the National Labor Relations Act.
C. It is further agreed that the rights of Management
specified herein or elsewhere in this Agreement may not
be impaired by an arbitrator or arbitration even though the
parties may agree to arbitrate the issue involved in a spe-
cific manner as provided in the Grievance and Arbitration
Procedure hereof.

[Jt. Exh. 1, art. XIV.]
The Unions’ reaction to this clause was essentially the same
as to the no-strike clause, i.e., to be used as a bargaining chip
and traded for arbitration and union security. To be sure, the
Unions expressed concern that it was so extensive, but in the
words of Berman, “[I]f we could get some sort of arbitration,
we would consider trading with management rights.” (Tr. 48–
49.) Like the no-strike clause, management rights was never
discussed in detail because the Unions were prepared to accept
it as proposed or with minor modifications in return for a
proper trade. Again, I quote Berman, “[I]f we are going to get
the arbitration, then I can live with most of the management
rights. I might want to make a small change, but basically I can
accept most of what it says so long as we can go to arbitration
on any kind of question that comes up. That was about all that
was said.” (May 15 meeting, Tr. 70—71.)
Using the same analysis as for the no-strike clause, I con-
clude that Respondents’ management-rights clause, either by
itself, or in the context of other matters desired by Respondents
is not evidence of surface bargaining in this case. Of course,
the Supreme Court has stated in NLRB v. American National
Insurance, 343 U.S. 395 (1952), that a broad management-
rights provision complied with a restriction on arbitral review
of management decisions made thereunder, is not per se a
violation of the Act.
In Commercial Candy Vending Division, 294 NLRB 908,
909 (1989), the Board reversed a finding of surface bargaining
stating:

It is not unlawful for an employer to propose and bargain
concerning a broad management-rights clause. The Board
has found bad-faith bargaining when the employer has in-
sisted on a broad management-rights clause and a no-strike
clause, while at the same time refusing to agree to an effective
grievance procedure. [Footnotes omitted.]

In this case, I have found above that the grievance procedure
proposed by Respondents can not be characterized as ineffec-
tive.
Moreover, I find that Respondents has not manifested a
“take-it-or-leave-it” attitude in its negotiations. With respect to
its opposition to a neutral arbitrator, it did agree during bargain-
ing to a labor management council, as described above. With
respect to seniority, Respondents also modified its position as
described above. Compare: John Ascuaga’s Nugget, 298
NLRB 524–527 (1990). Of course, I also recognized the large
number of TAs reached by the parties.
It cannot be said that all factors in this case point in a single
direction. In American Meat Packing Corp., 301 NLRB 835
(1991), the Board focused on the Respondent’s “take-it-or-
leave-it” stance with respect to its grievance and no-strike pro-
posals. (Id. at 837). While the grievance procedure in question
resembles that in issue in the instant case, the posture of the no-
strike clause is different and far less sweeping. Other factors in
American Meat Packing Corp., supra, which the Board recited
in finding surface bargaining are not present in the instant case.
I am convinced that the case should not govern the determina-
tion I make here as it may be factually distinguished. The fac-
tors present in American Meat Packing Corp. supra, which are
different from the present case include:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
(1) The employer and union had a prior collective-bargaining
relationship and the employer was attempting to negotiate
changes from the expired agreement.
(2) The employer’s representative made one or more state-
ments at the bargaining table indicating a “take-it-or-leave-it”
attitude.
(3) The management-rights clause at issue was far broader
and more comprehensive than that proposed by Respondents
here.
(4) The employer demonstrated intransigence on a seniority
article while Respondents here made a significant concession
regarding seniority.
(5) The employer’s president communicated directly with
employees about negotiations and in the course of a series of
letters disparaged and discredited union bargaining representa-
tives. None of that is present here.
In sum, I find that American Meat Packing Corp. simply
does not apply to this case.
d. Union security
I begin with the general rule that an employer’s refusal to
grant a union-security clause in negotiations does not constitute
bad-faith bargaining. Dow Chemical Co., 186 NLRB 372, 382
(1970). On the other hand, mere philosophical objections to a
union-security clause does not relieve an employer of the obli-
gation to bargain over that subject. . . . If a party is prepared to
make concessions, it should not permit bargaining negotiations
to founder without imparting that fact to the other side. Bryant
& Stratton Business Institute, 321 NLRB 1007 (1996). With
the above in mind, I turn back to the record.
Berman testified that the Unions were prepared to agree to
management-rights and to a no-strike clause in return for arbi-
tration and union security. Respondents on the other hand were
opposed to union security, at least as proposed by the Unions.
It is not at all clear from the evidence that Respondents would
not consider any form of union security. Witness Berman’s
testimony regarding a telephone negotiation on February 8.
According to Berman: [W]e asked if they would consider giv-
ing any kind of union security. At that time their comment was
we are not prepared to change our position at this time (empha-
sisadded) (Tr. 47). Again on April 2, Respondents said it was
not prepared to discuss union security at that point (Tr. 54).
Later in negotiations, Respondents gave reasons for their posi-
tion, that union security might give a minority of union mem-
bers power to ratify the contract or to impose union dues over a
majority of nonunion members. It is immaterial whether the
Unions, the General Counsel, or I find these reasons total per-
suasive. What is important is that these reasons are not so il-
logical as to warrant an inference that Respondents has evinced
an intent not to reach agreement and to produce a stalemate in
order to frustrate bargaining. Hickinbotham Bros. Ltd., 254
NLRB 96, 102–103 (1981).
I find this segment of my decision is governed by Challenge-
Cook Bros. (Cook Bros. Enterprises), 288 NLRB 387, 388–
389 (1988). In that case the Board reversed a decision of the
judge finding surface bargaining in part based on the em-
ployer’s proposal to eliminate union security as a condition of
employment. The Board noted that merely because such a
clause existed in a prior contract does not by itself obligate the
parties to include it in successive contracts (citations omitted)
(Id.at 388). From this principle, I find that parties need not
necessarily include such a clause in an initial contract. Both
sides in Cook Bros. were engaging in hard bargaining tactics
(id. at 389) and I find this to be so in the present case as well.
The Board in Cook Bros. emphasized the familiar rule that a
party may stand firm by a bargaining proposal legitimately
proffered (id at 389). Citing Atlas Metal Parts Co. v. NLRB,
660 F.2d 304, 308 (7th Cir. 1981). As found by the Board in
Cook Bros. supra, and as I find here, there is no evidence that
in maintaining its position on open shop, Respondents were
motivated by bad faith or an intent to frustrate agreement. See
also Keller Mfg. Co., 272 NLRB 763, 800–801 (1984).
4. Conclusion
For the reasons stated above, I will recommend that this case
be dismissed.
CONCLUSIONS OF LAW
1. Respondents are employers within the meaning of Section
2(2) of the Act, engaged in commerce and in an industry affect-
ing commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Unions are a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondents have not engaged in the unfair labor prac-
tices alleged in the complaint.
On the basis of the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, I issue the follow-
ing recommended13
ORDER
It is ordered that the complaint be, and it is, dismissed in its
entirety.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.